Judgment Heard Shri Nigel Da Costa Frias, learned Counsel appearing for the Appellant and Shri Padiyar, learned Counsel appearing for the Respondent. 2. The above Appeal challenges the Order dated 21.11.2009, passed by the learned Civil Judge, Senior Division at Panaji, whereby an application filed by the Respondent under Order 39 Rule 10 of the Civil Procedure Code, came to be disposed of, inter alia, directing the Appellant to deposit in the Court a sum of Rs.45,00,000/-. 3. Briefly the facts of the case are that the Respondent has filed a suit against the Appellant, inter alia, claiming that they had advanced a sum of Rs.45,00,000/-to the Appellant which they had defaulted in such repayment and, as such, the suit came to be filed for recovery of said amount of Rs.45,00,000/-together with interest thereon. 4. The Appellant has filed her written statement disputing the claim put forward by the Respondent and, inter alia, contended that the said amount was given to the Appellant in order that the Appellant could invest the said amount in purchase of some immoveable properties and that such properties would be jointly purchased and the proceeds thereof would be shared equally. It was further the contention of the Appellant that the said sum of Rs.45,00,000/-was invested in a project which is known as Corporation Khata No.75, Canara Bank Colony, Main road, Chandra Layout ward No.29-A, Bangalore, North Taluka. It is further her case that thereafter as the Project did not go through, a sum of Rs. 60,50,000/-came to be refunded. However, it is the contention of the Appellant at para 22 of the written statement that after receipt of the said amount, the said sum of Rs.60,50,000/-was invested in a property known as 'Neelmangala' in Bangalore. For the reasons stated in the written statement, the Appellant submitted that the suit deserves to the rejected. 5. During the pendency of the said suit, the Respondent filed the said application to direct the Appellant to deposit money and/or attachment before Judgment of a property. The Appellant opposed the said application filed by the Respondent. The learned Judge disposed of the said application by the impugned Order directing the Appellant to deposit the said sum of Rs.45,00,000/-. 6. During the pendency of the said suit, the Respondent filed the said application to direct the Appellant to deposit money and/or attachment before Judgment of a property. The Appellant opposed the said application filed by the Respondent. The learned Judge disposed of the said application by the impugned Order directing the Appellant to deposit the said sum of Rs.45,00,000/-. 6. Shri Nigel Da Costa Frias, learned Counsel appearing for the Appellant, has assailed the impugned Order essentially on the ground that it is nobody's case that the Appellant is holding any money in trust on behalf of the Respondents. The learned Counsel further pointed out that the amount received from the Respondent has been invested in a property at the instance of the Respondent in Bengalaru. Learned Counsel further pointed out that unless and until it is established that the Appellant is holding any money or any property which is capable of being converted into money in trust on behalf of the Respondent, the question of directing the Appellant to deposit the said sum of Rs.45,00,000/-, would not arise. Learned Counsel further pointed out that the case put forward by the Respondent was on the premise that the Appellant had taken a loan from the Respondent. Learned Counsel further pointed out that the whole case made out by the Respondent is on the basis of the written statement of the Appellant which otherwise such allegations are not in accordance with the pleadings of the Respondent in the plaint. Learned Counsel has taken me through the impugned Order and pointed out that the learned Judge has not at all applied his mind to the law applicable to the facts in issue and, as such, the impugned Order deserves to be quashed and set aside. 7. On the other hand, Shri Padiyar, learned Counsel appearing for the Respondent, has supported the impugned Order. Learned Counsel further pointed out that the Appellant is based in Bengalaru and it is very difficult to keep in touch with the Appellant and that even the Respondent had to take lot of pains to issue summons to the Appellant in the suit. Learned Counsel further pointed out that the Appellant is based in Bengalaru and it is very difficult to keep in touch with the Appellant and that even the Respondent had to take lot of pains to issue summons to the Appellant in the suit. Learned Counsel further pointed out that as the Appellant has no assets in Goa and taking note of the fact that the Appellant has not disputed the receipt of the sum of Rs.45,00,000/-, the learned Judge was justified to direct the deposit of the sum of Rs.45,00,000/-in the Court. Learned Counsel further pointed out that the flat referred to in the application belongs to the Appellant and, as such, relief was sought by the Respondent for attachment of the said flat to secure the interest of the Respondent to recover the amount which would be decreed in favour of the Respondent. Learned Counsel further pointed out that even assuming provisions of Order 39 Rule 10 are not applicable to the facts of the present case, the Court always has powers to resort to under Section 151 of the Civil Procedure Code and ensure that the rights of the Respondent is duly protected. Learned Counsel has taken me through the impugned Order as well as the application filed by the Respondent and pointed out that there is no case made out for interference in the impugned Order and, consequently, the Appeal deserves to be rejected. 8. I have carefully considered the contentions raised by the learned Counsel appearing for the respective parties. I have also gone through the application filed by the Respondent and the reply filed by the Appellant. The learned Judge has passed the impugned Order to direct the deposit of the sum of Rs.45,00,000/-invoking the provisions of Order 39 Rule 10 of the Civil Procedure Code. On plain reading of Order 39 Rule 10 of the Civil Procedure Code, prerequisites for obtaining such reliefs, is that it is necessary to show that the Defendant has admitted that he is holding money or any property which is capable of being converted into money as a trustee of the Plaintiff. In the present case, the learned Counsel appearing for the Respondent has fairly accepted that there is no specific averment to that effect in the said application. In the present case, the learned Counsel appearing for the Respondent has fairly accepted that there is no specific averment to that effect in the said application. Apart from that, on perusal of the impugned Order, I find that the learned Judge has come to such conclusion but merely on the ground that the Appellant had admitted that she is holding 40 percent share in the property which she has purchased with the amount received from the Respondent. Hence, these observations of the learned Judge do not meet the requirements under Order 39 Rule 10 of the Civil Procedure Code. This prima facie establishes that the Appellant is not holding any money and/or any property which is capable of being converted into money as a trustee of the Respondent. Merely because a property is standing in the name of the Appellant, does not by itself entitle the Respondent to get the relief under Order 39 Rule 10 of the Civil Procedure Code. 9. Considering the facts and circumstances of the case, it is not in dispute that a sum of Rs.45,00,000/-was otherwise received by the Appellant. In such circumstances and taking note of the contention of Shri Padiyar, learned Counsel appearing for the Respondent, that the Appellant has no other assets which would satisfy any Decree which may be passed in favour of the Respondent after adjudication of the suit, I find it appropriate, in the interest of justice, that the Respondent is to be secured to some extent. On perusal of the application filed by the Respondent to direct the Appellant to deposit the money and/or attachment of the property, I find that the Respondent had sought for the attachment of a flat belonging to the Appellant as referred to at para 13 of the said application. Shri Nigel Da Costa Frias, learned Counsel appearing for the Appellant, pointed out that the said flat referred to in the said paragraph belongs to the Appellant. When questioned as to whether the Appellant would furnish an undertaking to the Court that the said flat would not be sold and/or alienate or dispose of in any manner during the pendency of the suit, Shri Nigel Da Costa Frias, learned Counsel appearing for the Appellant, showed his willingness that the Appellant would furnish such undertaking to the satisfaction of the learned Judge. Considering the said aspect, I find that it would be appropriate that the Appellant be directed to furnish an undertaking to the learned Civil Judge, Senior Division, Panaji, to the effect that the Appellant is still holding the said flat and that the said flat shall not be alienated/disposed of or any third party rights created in any manner during the pendency of the suit filed by the Respondent. The said undertaking shall be furnished by the Appellant within four weeks from today. During the pendency of the above Appeal, this Court had stayed the execution of the impugned Order subject to the filing of the title Deeds in respect of the property at 'Neelmangala' in Bangalore. Pursuant to the said Order, the Appellant has produced in this Court the Original Agreement dated 10.06.2008. The said Agreement shall be kept in the Court file until such undertaking referred to herein above is furnished by the Appellant before the learned Trial Judge. It is made clear that the observations made herein above are only for considering the application filed by the Respondent and the findings rendered herein shall not in any manner, influence the learned Judge whilst disposing of the suit on merits. 10. In view of the above, I pass the following : ORDER (i) The Appeal is partly allowed. (ii) The impugned Order dated 21.11.2009 is quashed and set aside. (iii) The Appellant is directed to furnish an undertaking in the manner and in terms as stated herein above within four weeks from today to the satisfaction of the learned Civil Judge, Senior Division, Panaji. (iv) Liberty to the Appellant to seek modification if any, in accordance with law. (v) Appeal stands disposed of accordingly.