- (1.) Special leave granted.
(2.) Ordinarily in a matter of this nature jurisdiction under Art. 136 of the Constitution would not have been permitted to be invoked but having heard learned Counsel for the parties we are osf the view that in the facts and circumstances of this matter, the order of the High Court should be reversed by allowing the appeal.
(3.) The appellant, a Nationalised Bank, obtained a decree in Civil Suit No. 1169 of 1977 from the City Civil Court at Ahmedabad against several defendants including the State of Gujarat. So far as the defendant State is concerned, the decree ran thus : "The suit is partly decreed against the defendant No. 3 and the defendant No. 3 is ordered to pay Rs. 59.69,422-59 to the plaintiff with interest at the rate of 6% from the date of the suit till realisation of the amount by the plaintiff. The defendant No. 3 shall pay the proportionate costs of the suit to the plaintiff and bear its own...,.." The State of Gujarat has filed a First Appeal in the High Court of Gujarat being First Appeal No. 1993 of 1983 against the decree and it is pending disposal. An application for stay of execution of the operation of the decree was filed by the State of Gujarat being C. A. No. 953 of 1985 but before any order was made thereon, the appellant decree holder levied execution of the decree in Execution Application No. 240 of 1985. On 5th March, 1986, the State Government deposited the decretal amount of Rs. 88,92,280/- in the Executing Court and moved the High Court for an order of stay of further proceedings in execution and for restraining the decree-holder from withdrawing the amount from the Executing Court by alleging that in the event of reversal of the trial Court's decree in appeal it would be difficult for the State Government to recover the amount. On 21st of March, 1986, the High Court passed an order of stay of execution in the pending application, C. A. 953 of 1985, and on the 23rd April, 1986 (State of Gujarat v. Central Bank of India, Ahmedabad, 1987 (1) GLR 437) the impugned order was made directing refund of the amount deposited by the State Government in the Executing Court. Challenge is to the order directing refund.;