U.C. Dhyani, J. (Oral)

Present Civil Revision has been filed by the revisionist against the order dated 11.07.2014 passed by learned Civil Judge (S.D.), Dehradun, on the application under Order 38 Rule 5 C.P.C. read with Order 39 Rules, 1, 2 & 3 read with Section 151 C.P.C. in Suit No. 257 of 2013, Smt. Sushila vs. Amit Kumar Aggarwal and another.

2. The plaintiff/revisionist filed a civil suit against the defendant/respondent no.1 for recovery of Rs. 1,37,40,800/- along with interest. After institution of the suit, at the initial stage, the plaintiff (revisionist herein) moved an application under Order 38 Rule 5 C.P.C. read with Order 39 Rules 1, 2 & 3 C.P.C. read with Section 151 C.P.C. Following were the averments of such an application:

“1. That the plaintiff has filed the captioned suit for the recovery of a sum of Rs. 1,37,40,800/- along with interest @ 12% p.a. pending and future till realization.

2. That the plaintiff has stated in para no. 4 of the plaint that she purchased the property in suit for a sum of Rs. 95 lacs vide sale-deed datd 11.05.2010. The said sale-deed was registered in the office of Sub Registrar, Dehradun and recorded in Book No. 1, Volume 3128, pages 395 to 496 at No. 3576 dated 12.05.2010

3. That the aforesaid sale-deed was executed/registered by the defendant no. 1 through his Attorney/defendant no.2.

4. That after the execution of the sale-deed aforesaid, the plaintiff came to know that the property in suit had been acquired under the provisions of the Land Acquisition Act. It was further found that the Special Land Acquisition Officer had given/published his Award on 20.03.2008 and a total sum of Rs. 3,01,98,870/- had been awarded. The defendant no. 1’s share is 35 %, therefore, he is entitled to a sum of Rs. 1,05,69,605/- out of the total amount of Award.

5. That the awarded amount is lying in deposit with the office of Special land Acquisition Officer, Dehraudn.

6. That the defendants did not disclose at the time of execution of Sale-deed that the property in suit had been acquired and that the Special Land Acquisition Officer, Dehradun had even awarded compensation for the acquisition made in respect of property no. 8, Chander Road, Dehradun.

7. That the plaintiff has filed the captioned suit for recovery of R.s 1,37,40,800/- being the principal amount and the expenses incurred towards purchase of Stamp Paper etc. as well as interest incurring thereon.

8. That the plaintiff has every hope of success in the aforesaid suit and there is every likelihood that the suit shall be decreed with cost as against the defendants.

9. That the defendant no. 1is making all efforts to withdraw 35% of the awarded amount lying in deposit with Special Land Acquisition Officer, Dehradun. His efforts are continued. So far, he has not succeeded in his such designs, however, in case he succeeds in his attempts in withdrawing the aforesaid amount, irreparable injury shall accrue to the plaintiff.

10. That it is further learnt that the defendants are about to withdraw/remove the entire amount to the extent of defendant no. 1’s share from the office of Special Land Acquisition Officer, Dehradun.

11. That it would therefore be just and proper to attached the aforesaid sum of Rs. 1,05,69,605/- (being 35% of the total awarded amount) and to produce and place at the disposal of the Court when ordered, as may be sufficient to satisfy the decree, which is likely to be passed against the defendant no. 1.

It is therefore, prayed that this Hon’ble Court may be pleased to order attachment of a sum of Rs.1,05,69,605/- (being 35% share of the defendant no.1 of the total awarded amount) lying in deposit with Special Land Acquisition Officer, Dehradun and not to release the same in favour of the defendants and further be produced the said sum in the Court when ordered.”

3. The respondent no.1/defendant filed objection against the same. One of the objection of the defendant no.1 was that there wa