JUDGMENT 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. 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 possession of the suit property on the date of decree was with defendant No.2, however, the possession of major portion of the suit property was handed-over to the plaintiff by defendant No. 1; the plaintiff could prove that she paid a sum of Rs. 1,674/- to Roshanlal. 1,674/- to Roshanlal. The plaintiff failed to prove that the defendant was not executing the sale deed and was not getting it registered; the plaintiff has failed to prove that the defendant has violated the agreement; the plaintiff was not entitled to payment of any compensation, however, as it was indicated in the agreement that defendant - Roshanlal has received a sum of Rs. 7,761.50 P. from the plaintiff and the plaintiff has proved that she had paid a sum of Rs. 1,374/- to defendant - Roshanlal for purchase of stamps, she was entitled for a sum of Rs. 9,135.50 P.; as the property was auctioned after filing of the suit, it cannot be said that the suit was not maintainable; as the suit house was under attachment since the year 1967 and attachment was in force till 18.9.1971, the plaintiff had no right to sale the property and therefore, the agreement was illegal and void. As the plaintiff could not have entered into agreement to sale, filing of the suit by the plaintiff would not effect the rights of the auction purchaser. The defendant No.2 failed to prove that he had spent Rs. 20,000/- on the suit house and the order dated 14.12.1974 passed on plaintiff's application under Order 21, Rule 58 CPC would operate as res judicata and finally decreed the suit against the defendant No. 1 for a sum of Rs. 9,135.50 P. and dismissed the rest of the suit. 11. Feeling aggrieved, the present appeal has been filed. It was inter-alia submitted by learned counsel for the appellant that the judgment and decree passed by the trial Court to the extent the same has been decided against the plaintiff is against law and facts available on record and therefore, the judgment impugned deserves to be set-aside and the suit filed by the plaintiff deserves to be decreed in toto. 12. It was submitted that there was enough documentary evidence by way of receipts Exhibits-5/A, 5/B, 8 & 9 to show payments by the plaintiff to the creditors of Roshanlal and therefore, the trial Court fell in error in rejecting the claim for a sum of Rs. 23,450/-, the finding regarding lack of readiness and willingness to perform the conditions of the agreement on part of the plaintiff is ex-facie incorrect in view of the stand taken by Roshanlal claiming the agreement to be illegal and void. 23,450/-, the finding regarding lack of readiness and willingness to perform the conditions of the agreement on part of the plaintiff is ex-facie incorrect in view of the stand taken by Roshanlal claiming the agreement to be illegal and void. 13. It was further submitted that though the house was attached in the year 1967, but the attachment would be deemed to have been released in the year 1968 when the parties compromised and the decree-holder agreed to receive the amount by installment. Whereafter, as no execution was pending on the date of agreement to sale, it could not be said that the attachment was in operation. The true import of Section 52 of the Transfer and Property Act, 1882 ('the Act') has not been understood by learned Judge and the auction proceedings were hit by principle of lis pendens. 14. Regarding non-filing of suit under Order 21, Rule 63 CPC it was submitted that as the attachment had been concluded by sale, no suit was necessary to be filed under the provisions of Order 21, Rule 63 CPC and further remedy other than the suit Under Order 21, Rule 63 CPC was not barred. It was prayed that the suit deserves to be decreed in toto. 15. The respondent No. 1 Roshanlal has filed cross-objections under Order 41, Rule 22 CPC seeking setting aside of decree to the extent of payment of Rs. 1,374/-. 16. Learned counsel for the respondent vehemently opposed the submissions made by learned counsel for the appellant and reiterated the stand taken by the defendant before the trial Court. 17. It was submitted that in view of the order passed by the Executing Court Ex.-B/lO dated 16.10.1968, the attachment was well and truly in force on the date when the agreement to sale was entered, which rendered the execution of agreement to sale void and consequently, all the pleas sought to be raised by the appellant has no substance. 18. It was further submitted that after dismissal of objections filed by the plaintiff under Order 21, Rule 58 CPC, non-filing of suit under Order 21, Rule 63 CPC operates as res judicata in the present proceedings and the trial Court was justified in deciding the issue No. 11 against the appellant and consequently, the judgment impugned deserves to be upheld to the extent the suit filed by the plaintiff has been dismissed. 19. 19. Regarding the cross-objections, it was submitted that there was no material available on record for the trial Court to come to a conclusion that the plaintiff had paid a sum of Rs. 1,374/- for purchase of stamps and as such, the decree passed by the trial Court deserves to be modified and reduced to the extent of a sum of Rs. 1,374/-. 20. I have considered the rival submissions. 21. The facts, which are not in dispute, are that an agreement to sale (Ex.-l) dated 18.09.1971 was executed by defendant-Roshanlal in favour of Smt. Surendra Kumari (plaintiff) for a sum of Rs. 30,000/-, wherein he had received a sum of Rs. 7,261.50 P. for payment to Ranjeetlal and Rs. 500/- to misc. debtors and left rest of the amount with her for payment to various debtors and agreed to execute the sale deed on 21.9.1971 and delivered possession of the part of the suit property to the plaintiff. Whereafter the present suit seeking specific performance of above agreement dated 18.9.1971 was filed on 11.7.1974. The objections filed by the plaintiff under Order 21, Rule 58 CPC in execution proceedings filed by Smt. Shanta Kumari v. Roshanlal was rejected on 14.12.1974 (Ex.-2). The certificate for auction of the suit property was issued on 15.1.1975 (Ex.-B/8), order for delivery to the certified purchaser was passed on 27.1.1975 (Ex.-B/9). Whereafter, the plaint was amended inter-alia indicating auction dated 14.12.1974 and delivery of possession to defendant No.2, who was also impleaded as a party. 22. The validity of the agreement to sale dated 18.9.1971 and effect of order passed by the Executing Court on application filed by the plaintiff herein under Order 21, Rule 58 CPC (Ex.-B/2) are preliminary points for determination. So far as the relief of specific performance of agreement dated 18.9.1971 is concerned, rest of the issues are either consequential to these preliminary points or pertains to the relief for refund of the amount paid to the defendant No. 1 his creditors under the agreement dated 18.9.1971. (i)- Validity of Agreement Dated 18.9.1971 (Ex.-1) : 23. Vide order dated 18.5.1967 passed in the Execution Case No.44/67, the Additional Civil Judge, Udaipur ordered issuance of process under Order 21, Rule 54 CPC prohibiting defendant No. 1-Roshanlal herein from transferee or charging the property in any way and all persons from taking any benefit from such transfer or charge. 24. Vide order dated 18.5.1967 passed in the Execution Case No.44/67, the Additional Civil Judge, Udaipur ordered issuance of process under Order 21, Rule 54 CPC prohibiting defendant No. 1-Roshanlal herein from transferee or charging the property in any way and all persons from taking any benefit from such transfer or charge. 24. The process in pursuance to order dated 18.5.1967 was issued and executed vide Ex.-B/6. Where-after it appears that parties entered into compromise for payment by way of installments and an application dated 16.10.1968 was filed by the parties vide Ex.-B/5 wherein it was agreed that the amount of decree shall be paid in installments of Rs. 500/- every three months and till such time that the entire decreetal amount by way of installments is not paid the attachment would continue and judgment-debtor shall not sale the property. 25. Based on the said agreement (Ex.-B/5), the Executing Court passed order dated 16.10.1968 (Ex.-B/lO), which reads as under:-Quote 'A' Hindi " eq0 'kkUrk dqekjh V/s Jh jks'kuyky " 16-10-68 vthZ ij fely vkt is'k gqbZ Jh en;qu dh vthZ is'k gqbZ gS fd vkil esa le>kSrk gks x;k gS en;qu dk eQ[kdk edku dqdhZ esa j[krs gqos 500@& :0 izR;sd frekgh ij vnk djus dh fdLr cUnh dh gSA ftldks odhy fMdzhnkj eUtwj djrk gSA igyh fd'r 15-1-68 dks ns; gksxh o blh izdkj gj vaxzsth ekg dh 15oha rkjh[k dks fdLr rk vnk;xh erkyok fMdzh rd vnk gksrh jgsxhA fygktk eQ[kdk edku dqdhZ esa j[krs gqosA nj[okLr en;qu dh fdLr cUnh dks eUtqj dh tkdj fely vne olqyh esa nk[khy nQ~rj gksA ,d Hkh fdLr pqdus ij fMdzhnkj en;qu dks edku fuyke djk ldsxkA fely gLc dk;nk nkf[ky nQ~rj gksA " 26. A bare look at the said order would reveal that the order was passed keeping the house under attachment accepting the prayer for installments and the file was consigned to records for non-payment and it was directed that on default in payment of a single installment, the decree-holder would be free to get the house auctioned. 27. The said order appears to have continued, whereafter the auction proceedings were re-initiated by Shanta Kumari and the house came to be auctioned vide Exhibits-B/8 & B/9 in favour of the defendant No.2. 28. 27. The said order appears to have continued, whereafter the auction proceedings were re-initiated by Shanta Kumari and the house came to be auctioned vide Exhibits-B/8 & B/9 in favour of the defendant No.2. 28. The provisions for determination of attachment are contained in Order 21, Rule 57 CPC, which at the relevant time i.e. before amendment in 1976, read as under:- "57. Where any property has been attached in execution of a decree but by reason of the decree-holder's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease." 29. The determination under the above provision is envisaged only if the Court is unable to proceed further on account of decree-holder's default and the application for execution is dismissed by the Court. In the present case vide Ex.-B/lO, the application for execution has not been dismissed and on the other hand, the Executing Court specifically ordered for continuance of attachment till the payment of decreetal amount by way of installments as indicated in the order, therefore, by any stretch of imagination, it cannot be said that the attachment stood determined in terms of Order 21, Rule 57 CPC. 30. This Court in Ghanshyam Das v. Gambliir Mai, AIR 1965 Raj. 155 , after noticing provisions of Order 21, Rule 57 CPC came to the conclusion that as the orders passed by the Executing Court were not based on any default on part of the decree-holders, the attachment of the property subsisted. 31. In view of the express provision and law laid down by this Court, it cannot be said that merely because the execution proceedings were consigned to record, despite specifically continuing with the attachment, the attachment would stand determined in terms of Order 21, Rule 57 CPC. 32. Section 64 CPC provides that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. 33. 32. Section 64 CPC provides that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. 33. Admittedly, the suit property was under attachment in execution proceedings initiated by Smt. Shanta Kumari and the agreement to sale dated 18.09.1971 was entered into by defendant No. 1 - Roshanlal, who was judgment-debtor in the execution proceedings launched by Shanta Kumari, the agreement was per se void and therefore, nothing flows in favour of the plaintiff-appellant from the said agreement in so far as seeking specific performance of the contract is concerned. 34. A Division Bench of this Court in Rashtra Unnati Vaidliyalaya v. Natlnnal Chandok, 2001 A.I.H.C. 1460 , while dealing with Section 64 CPC observed and held as under:- "6. Thus, Section 64 C.P.C. enacts that a private alienation of property after attachment is void as against claims enforceable under the attachment. The object of the Section is to prevent fraud on decree holders and to secure intact the rights of attaching creditors and of those creditors who have obtained decrees and are entitled to satisfaction out of the assets of the judgment-debtor. This also includes purchase of the property in auction in satisfaction of the decree. The word 'transfer' is used in the most generic sense and includes all species of contract which pass real rights in property from one person to another. A "private transfer" means a voluntary transfer such as a sale, mortgage, lease or gift. Thus creation of any tenancy or claim of status of tenant under such tenancy i.e. after attachment is void being in contravention of Section 64 C.P.C. Taking any other view will frustrate the object of Section 64 C.P.C." (ii)- Effect of Non-Filing of Suit Under Order 21, Rule 6 3 CPC: 35. Thus creation of any tenancy or claim of status of tenant under such tenancy i.e. after attachment is void being in contravention of Section 64 C.P.C. Taking any other view will frustrate the object of Section 64 C.P.C." (ii)- Effect of Non-Filing of Suit Under Order 21, Rule 6 3 CPC: 35. Besides the above, in the execution proceedings initiated by Smt. Shanta Kumari wherein the property was auctioned in favour of the defendant No.2, the plaintiff based on the agreement to sale date 18.9.1971 filed objections under Order 21, Rule 58 CPC, the objections came to be rejected by order dated 14.12.1974 passed by the executing Court, which reads as under:- " Jhefr lqjsUnz dqekjh W/o xksfoUn Lo:i HkVukxj] mn;iqj cuke (1) Jh efr 'kkUrk dqekjh dksBkjh (2) Jh jks'ku yky yksnk] mn;iqj 14-12-74 odqyk; Qjhdsu gkftj gSA cgl lquh xbZA ;g objection petition /kkjk 64 C.P.C. ds vuqlkj Maintainble ugha gS D;ksafd ftl bdjkj i= ds vk/kkj ij objection dks en;wu us oknxzLr dqdZ 'kqnk lEifRr Transfer dh gS mlls iwoZ gh ;g lEifRr attachment esa Fkh ftlds ckcr 'kq) izfr0 vkns'k btjk; i=koyh esa gSA vr% objection petition fujLr dh tkrh gSA vkns'k lquk;k x;kA i=koyh 'kkfey btjk; i=koyh gksA " 36. However, after rejection of the objection petition, instead of filing suit under Order 21, Rule 63 CPC (as it existed on the statute book before the amendments made in 1976), the appellant-plaintiff preferred the present suit seeking specific performance of contract. 37. The provisions of Order 21, Rule 58 CPC and Rule 63 CPC reads as under:- "58. (1) Where any claim is preferred to, or any objection is made to the attachment, of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit : Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) Where the property to which the claim or objection applies has been advertised for sale, the Court ordering the sale may postpone it pending the investigation of the claim or objection." "63. (2) Where the property to which the claim or objection applies has been advertised for sale, the Court ordering the sale may postpone it pending the investigation of the claim or objection." "63. Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which the claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive." 38. While Rule 58 provides for investigation of claims and objections to attachment of attached property in execution of a decree on the ground that such property is not liable to attachment; Rule 63 provides that the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute and subject to result of such suit the order passed on investigation under Rule 58 shall be conclusive. 39. The effect of non-filing of suit under Order 21, Rule 63 CPC came up before Madras High Court in Janakanmia & Anr. v. A. Govindraj Mudalier & Anr., AIR 1961 Madras 196 , wherein it was held that non-filing of suit under Order 21, Rule 63 CPC makes the order of rejection conclusive and subsequent suit is barred by principle of constructive res judicata. The said view was again reiterated in N.S. Ramanatlian v. B. Ratnavelu & Anr., AIR 1973 Madras 391 . 40. In view of non-filing of suit under Order 21, Rule 63 CPC; not making any reference to order dated 14.12.1974 (Ex.-B/2) in the present suit and not seeking any relief whatsoever regarding the said order, makes the finding recorded by the Executing Court on 14.12.1974 conclusive and therefore, the present suit in teeth of said order would be barred by principles of constructive res judicata. 41. In view of the above discussion, the finding recorded by the trial Court on Issues No.8 & 11 does not call for any interference and the rejection of claim of the plaintiff seeking specific performance of contract was, therefore, rightly rejected by the trial Court. 42. In view of the finding recorded by the said issues, the issues regarding readiness and willingness of the plaintiff, effect of lis pendens on the auction in favour of the defendant No.2 goes into oblivion and does not call for redetermination in the present appeal. 42. In view of the finding recorded by the said issues, the issues regarding readiness and willingness of the plaintiff, effect of lis pendens on the auction in favour of the defendant No.2 goes into oblivion and does not call for redetermination in the present appeal. (iii)- Claim For Rs. 23,450/- : 43. So far as the claim of the plaintiff regarding payment of sum of Rs. 23,450/- to the defendant No. 1 Roshanlal is concerned, it was claimed by the plaintiff THAT at a sum of Rs. 14,000/- were paid to one Ratanlal Humad for settling the debtors of defendant No. 1, however, there is no reference whatsoever in the document Ex.-l regarding payment of the said sum before the agreement and only reference made is of receipt of Rs. 7761.50 P. by the defendant No. 1. No explanation whatsoever has been given for non-inclusion of the said sum of Rs. 14,000/- in the agreement to sale and why only a sum of Rs. 7761.50 P. has been indicated. The other claims made by the plaintiff regarding payment of several creditors has not been substantiated by any documents. 44. The trial Court has thoroughly considered the evidence available on record and has rightly came to the conclusion regarding failure on part of the appellant to prove payment of any sum beyond what was indicated in the agreement to sale and therefore, the finding recorded by the trial Court on the said issue also does not call for any interference. (iv)- Cross Objections : 45. So far as the cross-objection filed by the respondent is concerned, from a bare look at the stamps Exhibits-15 to 15/B, it is apparent that the stamps of Rs. 1,374/- were purchased in the name of Roshanlal for execution of the sale deed and on account of his conduct, the agreement failed and therefore, the plaintiff was entitled for recovery of the said amount. Therefore, there is no substance in the cross-objection filed by the respondent. 46. In view of the above discussion, there is no substance in the appeal as well as cross-objection and consequently, both are dismissed. The parties are left to bear their own costs.Appeal and Cross-Objection Dismissed. *******