SURENDRA KUMARI Vs. ROSHANLAL

JUDGEMENT

(1.) THIS appeal under Sec. 96 CPC is directed against the judgment and decree dt. 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. 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 authorized 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.

(2.) 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 authorized to make payment directly to creditors.

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