LAIKUNNISSAH Vs. HARI PRASAD

JUDGEMENT

(1.) This is a defendant's second appeal in a suit for setting aside the sale of two rooms of a house in execution of the decree in suit No. 36 of 1962.

(2.) Smt. Laikunnissah, defendant-appellant, was the decree-holder in the earlier suit No. 36 of 1962 in execution of which the two rooms in question were sold. The decree was for arrears of rent of a property tenanted by Shiv Dahin Ram, the pro forma respondent No. 2. The plaintiff-respondent No. 1 Hari Prasad and the pro forma-respondent No. 3 Parmanand are the sons of Shiv Dahin Ram. The plaintiff-respondent Hari Prasad's father's name was wrongly shown as Shiv Tahal Ram in the memorandum of appeal. The mistake occurred because in the decree of the lower appellate Court also the name of the father of Hari Prasad, plaintiff-appellant, before the lower appellate Court, was shown as Shiv Tahal Ram. In the decree of the trial court as well as the plaint, Hari Prasad's father's name is shown as Shiv Dhain Ram. On the request of the learned counsel for the appellant, I permitted him to correct the father's name of Hari Prasad, plaintiff-respondent No. 1, in the memorandum of appeal in this Court. The same correction will also be carried out in the decree of the lower appellate Court by the office.

(3.) The decree was for Rs. 584/- and two rooms of the ancestral house of the family of Shiv Dhain Ram were sold. The sale was sought to be set aside by the plaintiff-respondent Hari Prasad on the grounds that the decree in suit No. 36 of 1962 was 'Avyava-harika': that the value of the two rooms sold was not less than Rs. 4000/- and their sale for only Rs. 681/- was for a grossly inadequate consideration; that the sale was not for legal necessity and further that the defence of suit No. 36 of 1962, by Shiv Dahin Ram, was imprudent. The trial Court dismissed the suit but the lower appellate court allowed the appeal and set aside the sale in question.