Dave, J.—This case comes today for determination of the appellants application under Order 41 Rule 5 of the Civil Procedure Code. The respondent had filed a suit against the appellant in the court of the Civil Judge, Alwar for Rs. 3437/8/- on account of the loss sustained by him for alleged breach of contract committed by the appellant in refusing to take delivery of the goods. The trial court dismissed the suit but on the plaintiffs appeal to the District Judge, Alwar, a decree for Rs. 2750/-with proportionate costs in both the courts has been given in his favour. The defendant] has, therefore, come here in second appeal and presented a petition for staying the execution of the decree pending the decision of this appeal. On the 29th August, 1952, notice was issued to the opposite party to show cause why the stay application be not allowed, and an ad interim order to stay the execution was passed on that date. The appellants learned advocate wants the order to be made absolute while the respondents learned advocate seriously contests it on the ground that the appellant has sufficient means to pay up the decree and no substantial loss is likely to occur to him.

2. It appears from the appellants application dated the 29th August, 1952 that he has requested for staying the execution on the following grounds: —

(1) that the appellant has no ready money to pay and at the same time payment of the heavy sum is difficult in these days of financial stringency.

(2) that if the appellant transfers his property it shall fetch a very low price below the fair one and he will suffer substantial loss.

(3) if the appellant is arrested and sent to Civil prison he will loose all his business and reputation.

3. In support of his application he has filed an affidavit. The respondent on the other hand has stated in his reply that it is entirely incorrect to say that the appellant is unable to make payment of the decretal amount. It is alleged that the marketable goods and cash in addition to his immovable property and jewellery are in no Way less than 50,000 rupees, and that he is carrying on business in Alwar market on a large scale. He has also filed his own affidavit and also three other affidavits of Ramji Lal, Kedar Nath and Ladu Ram to the same effect. He has argued that this is only a money decree against the appellant and this court should not stay the proceedings. In support of his argument he has referred to the case of Dhunjibhoy Cowasji Umrigar vs. Lisboa (1) (I.L.R. XIII Bombay, p. 241.), where it was held that—

"A party appealing against a decree, which directs him to pay money, may obtain stay of execution of decree, 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."

The appellants learned advocate contends that under Order 41 Rule 5 the law makes no distinction between money decree and other kinds of decrees and that in case a judgment-debtor suffers substantial loss on account of execution of the decree the appellate court should stay the execution. He has referred to the case of A.A. Khan and others vs. Ameer Khan and others (2) (A.I.R. 1950 Mysore, p. 11) and Movie Enterprises represented by one of the Partners G. S. Tallam and another vs. M.S. Periasami Mudaliar and others (3) (A.I.R. 1952 p. 78.). In the former case it was held that—

"The Court can stay execution of money decree pending appeal on such security as it deems fit in proper cases in which sufficient cause for a stay has been made out, without requiring in all cases that the decree amount should be deposited in Court."

This view was followed in the latter case where it was further observed that—

"Order 41, Rule 5 cannot be read as imposing any limitation that the decrees for payment of money should receive a consideration different from the other decrees in

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