1. - This appeal under Section 96 CPC is directed against the judgment and decree dated 31.8.1982 passed by the Additional District Judge, Udaipur, whereby in a suit seeking specific performance and payment of Rs. 38,824/- in the alternative, the suit filed by the appellant-plaintiff was partly decreed for a sum of Rs. 9,135.50 P.

2. The facts, in brief, may be noticed thus : the plaintiff - Surendra Kumari filed a suit on 11.7.1974 for specific performance inter-alia with the averments that Roshanlal - defendant No. 1 was the owner of the house described in para No. 1 of the plaint; as he was heavily indebted on account of number of money decrees having been passed against him, nor pay the debts he authorised Ratanlal, to sell his house and make payments to various debtors; Roshanlal executed an agreement to sale on 18.9.1971 with the plaintiff, to sale the suit property for Rs. 30,000/-; the agreement was to be registered on 21.9.1971. The plaintiff give details of amount, which were paid to the creditors of Roshanlal by her and claimed that she paid against the agreement a sum of Rs. 23,450/- and further paid Rs. 1,374/- to Roshanlal for purchase of stamp for executing the sale deed. However, as Roshanlal did not execute the sale deed and she was prepared to perform her part of the contract, a decree for specific performance against defendant - Roshanlal was sought. In the alternate, it was prayed that in case for any reason, it was not possible to pass a decree for specific performance then a decree for a sum of Rs. 23,450/- paid to Roshanlal and compensation of Rs. 10,000/- alongwith value of stamp papers i.e. Rs. 1,374/-, in total Rs. 34,824/- be passed.

3. The defendant No. 1 filed written statement and controverted the plaint allegations; the execution for agreement to sale was admitted, but a plea was taken that agreement was a 'benami' to come out from troubling creditors; receipt of amount was denied; payment of creditors was denied and it was stated that the plaintiff was not authorised to make payment directly to creditors.

4. A plea was taken that the suit house had been auctioned on 12.02.1974 and therefore, no decree for specific performance could be passed; on the date of execution of agreement to sale, the house in question was under attachment, therefore, the agreement to sale was illegal and void and cannot be enforced.

5. In additional pleas, it was stated that the plaintiff had filed an objection under Order 21, Rule 58 CPC, which was rejected and thereafter no suit as envisaged under Order 21, Rule 63 CPC was filed and therefore, the present suit was not maintainable.

6. As during the pendency of the suit, the suit house was infact auctioned and was purchased by Sohanlal, he was also impleaded as party to the suit. Sohanlal also filed a separate written statement claiming his possession over the house in his capacity as owner, ignorance was pleaded regarding agreement to sale; allegations regarding collusion between plaintiff and defendant No. 1 were made. It was claimed that he has spent Rs. 20,000/- for improvement of the house. The house being under attachment as on 18.09.1971 (date of agreement to sale) were made and it was claimed that the agreement was null and void.

7. The plea regarding rejection of application under Order 21, Rule 58 CPC and non-filing of the suit under Order 21, Rule 63 CPC were raised and it was claimed that the suit was barred by principles of res judicata.

8. The trial Court framed eleven issues.

9. On behalf of the plaintiff, two witnesses were examined, defendant -Roshanlal did not appear in witness-box and also did not lead any evidence. Defendant No.2 Sohanlal examined three witnesses; on behalf of the plaintiff, 13 documents were exhibited and on behalf of defendant No.2, ten documents were exhibited.

10. After hearing the parties, the trial Court came to the conclusion that the defendant No. 1 failed to prove that the agreement dated 14.9.1971 was not executed; the pos