G.D. Dubey, J. - (1.) A Money decree has been passed against the Defendant-Appellant by the lower court. An application has been made to stay the execution of the decree. The learned counsel for the appellant has drawn my attention to some of the fact of the case. It was argued that the rice mill worth Rs. more than 2 lacs have been mortgaged by the Bank and bank has sufficient means to realise the decretal amount. My attention was also drawn to State of Central Bank of India, AIR 1987 Guj 113. It was argued that in case a Division Bench of the Gujrat High Court had held that under Order XLI, Rule 5 of the Code of Civil Procedure the execution of the money decree can be stayed if it is in the public interest. The learned Counsel for the respondent Bank has urged that this godown in which the rice was situated within the mill area of the appellants. The goods kept in the godown were, said to have been, stolen. It was urged that according to sub-rule (3) of Rule 1 of Order XLI of the Code of Civil Procedure the appellants have to deposit the whole amount or furnish a security. It was urged that if money of the Bank remains blocked then, it would not be possible to function the Bank at all.
(2.) I agree with the learned counsel for the respondent that in the case of State of Gujarat v. Central Bankoj India, (supra) the attention oi the Division Bench was not drawn to the provision of sub-rule (3) of Rule 1 of Order XLI of the Code. The Learned Counsel for the respondent has drawn my attention to Union Bank of India and another v. Jagannath Radhey Shyam and Co. and another, AIR 1979 Del 36.
(3.) Sub-rule (3) of Rule I of Order XLI of Code of Civil Procedure reads as under: "Where the appeal is against a decree or payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.";