The ownership/title of attached property should be determined after the evidence is complete.

YOGESH KHANNA, J.

I.A. No. 24903/2015

1. This application is moved on behalf of the defendant no. 2 under Section 94 read with Section 151 of CPC seeking discharge from the order and/or modification/clarification of the order dated 07.02.2014 passed by this Court. The said order is as follows:

“I.A. No. 2387/2014

The abovementioned application has been filed by the plaintiff under Order XXXVIII Rule 5 read with Section 151 CPC for attachment of the properties of defendant nos. 1 and 2. Issue notice to the defendants, returnable before the Joint Registrar on the date fixed. The case of the plaintiff is that defendant No. 1 joined the plaintiff in the year 2011 as an Accountant, in which capacity he was responsible for depositing cheques entrusted to him by the plaintiff's partners and maintenance of accounts. However, instead of depositing the cheques of the plaintiff in the plaintiff’s account, defendant No. 1 opened a separate account in his name as that of the plaintiff, i.e. J.H. Jewellers and deposited all the plaintiff’s cheques in the said account. Later on, it came to the notice of the plaintiff about the said account that the money was further transferred by defendant No. 1 to his personal account and defendant No. 2’s account, both with defendant No. 4 Bank. Defendant No. 2 is the wife of defendant No. 1. According to the plaintiff, both the defendants have hatched a conspiracy to defraud the plaintiff and have cheated the plaintiff in terms of money to the tune of Rs. 10.18 crores. The criminal proceedings are also pending against the said defendants, as the plaintiff has lodged an FIR. The present suit has been filed by the plaintiff for the recovery of Rs. 10,17,42,312/-. In view of the statement made in the plaint as well as the material placed on the record, the plaintiff has made a strong prima-facie case for attachment of the properties before judgment against the defendants. Thus, all the properties, the details of which are mentioned in para 7 of the application, are attached till further orders.”

2. It is submitted by the learned counsel for the plaintiff that defendant no. 2 was living in this residential property and since house bearing no. 16/805, Orange County, Indirapuram, Ghaziabad, U.P. belong to her, she having registered documents in her name, she may be allowed along with his family to reside in the said house till further orders for reasons mentioned in this application. It is alleged though the house is attached by the order of this Court but the real purpose of attachment is only to secure the property till decree is passed and to satisfy the decree. It is argued the defendant no. 2 shall not dispose of the said property or create any third party right in the same till the disposal of this suit if allowed to stay in the same.

3. The learned counsel for defendant no. 2 had relied upon Sardar Govindrao Mahadik and Another vs. Devi Sahai and Others, AIR 1982 SC 989 wherein it was held:

“What is the effect of attachment before judgment? Attachment before judgment is levied where the court on an application of the plaintiff is satisfied that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him (a) is about to dispose of the whole or any part of his property. Or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. The sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if made would be satisfied. It is a sort of a guarantee against decree becoming infructuous for want of property available from which the plaintiff can satisfy the decree. The provision in section 64 of the Code of Civil Procedure provides that where an attachment has been made, any private transfer or delivery of the property attached or of an