BHASKAR BHATTACHARYA, J.

(1) These two appeals were heard together as those are interlinked. F.M.A.T. No. 433 of 2009 is at the instance of the defendant in a suit for recovery of money and is directed against Order No. 14 dated 26th February, 2009, passed by the learned Civil Judge, Senior Division, Second Court, Barasat in Money Suit No. 122 of 2008 thereby disposing of an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure filed by the plaintiff by restraining the defendant from transferring or alienating the suit property described in Schedule A to the plaint and from creating any third partys interest in respect of the said property till the disposal of the suit.

(2) The other appeal being F.M.A.T. No. 692 of 2009 is, on the other hand, at the instance of the plaintiff of the said suit and is directed against the later part of the selfsame order dated 26th February, 2009 by which the learned Trial Judge dismissed an application under Order 38, Rule 5 of the Code of Civil Procedure filed by the plaintiff by which the plaintiff prayed for direction upon the defendant to furnish security for the amount claimed in the suit and in default, for attachment of the property before the judgment.

(3) The plaintiff filed a suit being Money Suit No. 122 of 2008 in the Court of Civil Judge, Senior Division, Second Court, Barasat thereby praying for recovery of Rs. 1,02,50,982/- being the cost of construction of a building constructed by the plaintiff on the allegation that the defendant entrusted the plaintiff to construct a multi-storied building on a land at 3, Pagladanga Road, Calcutta-46 allotted to the defendant by WBSIDC. According to the plaintiff the total cost of the construction was Rs. 1,57,15,982/- out of which the defendant paid a sum of Rs. 55,00,000/- and thus, the balance amount was still payable.

(4) In the said suit, the plaintiff in the plaint described the premises being 64 and 65, Udayan Industrial Estate (WBSIDC), 3, Pagladanga Road over which he made the construction as A Schedule property.

(5) After filing of the aforesaid suit the plaintiff came up with two different applications, one under Order 39, Rules 1 and 2 of the Code and the other under Order 38, Rule 5 of the Code as indicated earlier.

(6) According to the plaintiff, the financial condition of the defendant was not good and if the defendant was able to transfer or alienate the A Schedule property to some third party, in such situation, it would not be possible for the plaintiff to realise the claimed amount from the defendant company even; if a decree for recovery of money was passed against the principal defendant by the Court. In such circumstances, according to the plaintiff, the defendant company should be restrained from transferring or alienating the property to any third party.

(7) In the application under Order 38, Rule 5 of the Code, the plaintiff made similar allegation that the defendant was in a ruinous condition and in such a situation, for the purpose of realisation of money as claimed by the plaintiff, the property of the defendant was required to be attached before passing of judgment otherwise the claim of the plaintiff would be frustrated. Consequently, the plaintiff prayed for an order of furnishing security at the end of the defendant and if no such security was granted, there should be an order of attachment.

(8) Both the applications were contested by the defendant by filing written objection and the defence of the defendant was that it was agreed between the parties that the total construction should be completed on payment of Rs. 80,00,000/- out of which Rs. 55,00,000/- had already been paid. It was alleged that in a suit for recovery of money, the plaintiff was not entitled to get the injunction or the attachment as prayed for.

(9) In the past, the learned Trial Judge refused to grant ad interim order of injunction on the application under Order 39, Rules 1 and 2 of the Code filed by the plaintif