( 1 ) THIS is an application under Order 41, Rule 5, Civil P. C. The point for consideration is wether pending R. A. 64 of 49-50, the execution of the decree of the lower Court has to be stayed on appellants furnishing security.

( 2 ) THE lower Court has passed a decree for payment of Rs. 12,000 claimed to have been contributed by the plaintiffs towards their share of capital of a partnership concern for the dissolution of which the suit was filed and has passed also a preliminary decree for dissolution of partnership with a direction that accounts should be taken for ascertaining the income of the partnership concern. It is contended on behalf of the appellants that even if the plaintiffs have contributed Rs. 12,000 towards capital to the partnership concern there can be no decree for any amount at this stage, i. e. before accounts are taken. What is due to the plaintiffs or by them can only be ascertained after going through the accounts and in case there was a loss as contended by appellants, their share of the loss has to be adjusted out of the capital contributed by them. Form no. 22 of Appendix D of Schedule I, Civil P. C. , supports the contention of appellants that it is possible in a suit for partnership, for a decree being drawn up directing payment of money by a plaintiff to a defendant if on taking of accounts any money is found to be due to the latter by the former. It is also contended that defendants 2 and 3 are minors and they cannot be partners of a firm. It is not desirable to express any opinion on these matters and it is sufficient to say that the points raised by the appellants are not frivolous and they deserve consideration. It is urged that out of the three appellants two are minors and that payment of a heavy sum is difficult in these days of financial difficulties and that if the decree is allowed to be executed, the appellants including the minors will suffer substantially and there is no harm in staying execution on substantive security being furnished.

( 3 ) THE point that was seriously urged by the respondents on the authority of 9 Mys. L. J. 484, is that no stay can be ordered in the case of a money decree unless the appellants deposit the decree amount in Court for payment to them on their furnishing security for restitution in case of the decree is reserved in appeal. According to the head-note is in the above case: "where a decree directs payment of money and an appeal is lodged against that decree by the party directed to pay, the execution of the decree should be stayed so far as it directs payment, on his lodging the amount in Court, unless the other party gives security for the repayment of the money in the event of the decree being reversed. If such security be given by the successful party, then stay of execution should not be granted. "

( 4 ) INSPITE of this decision, the practice in this Court is to order stay of execution in proper cases irrespective of the question whether the decree is one for payment of money or for possession of immoveable property, and not to insist on deposit of decree amount in a case of money decree as a condition precedent. I feel no doubt that it is not correct to make any such distinction, as is not recognized by Order 41, Rule 5, Civil P. C. , or to lay down a condition not contemplated by it. I was at first inclined to refer the matter to a bench under the impression that the head-note contained the unqualified opinion of Doraswamy Iyer C. J. who decided that case. The head-note contained the unqualified opinion of Doraswamy Iyer C. J. who decided that case. The head-note is however misleading inasmuch as it leaves an impression that the opinion expressed in it is that of our High Court, though it is a quotation from Dhunjibhoy v. Lisboa, 13 Bom. 241. The learned Chief Justice appears to be clear on the point that the above rule laid down in dhunjibhoy v. Lisboa, 13 Bom. 241 may generally be followed; but it has not been laid down by him that it has to

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