The court has no power to fix the upset price excepting when there is a petition by the decree-holder to bid.

MANOFTAR PERSHAD, J.

( 1 ) THIS appeal is on behalf of the judgment-debtor and is directed against the order of the executing 3ourt dated 18. 10. 63 reducing the upset price as prayed by the decreeholder. We were very doubtful as to whether this was an appealable order. We therefore atked the learned counsel to satisfy us on this point. The learned counsel relying on the case of Venkatas vami v. Nagayya contended that the appeal was proper and maintainable. We do not agree with the contention of the Counsel. Venkataswami v. Nagayya was a case where the question was whether a second appeal was enteruinable No doubt in considering that question there was a reference 10 Order 21 Rule 66 and section 47 of the C. P. C. But there is nothing in this decision to show that it was held therein that any petition filed under Order 21 Rule 66 and the decision given thereon would be an appealable order. As the order passed by the lower court does not either relatet to execution, satisfaction or discharge of the decree the appeal would not be maintainable. The learned counsel for the appellant states that if it is held hat this appeal is not maintainable the same may be treated as revision as it involves a legal point. We accept the request of the learned counsel. The point urged is one of law and there is no reason why this court should not treat it as revision We therefore treat it as revision.

( 2 ) THE contention of the learned counsel for the petitioner is that the court had no power to fix the upset prior, exeping Rule 199 of the Civil Rules of practice and since there was no petition by the decree-holder to bid as enjoined in that rale this rule was not applicble. We and sufficient force in the contention of the learned counsel for the petitioner. Order 21 Rule 60 which is the relevent provision reads thus:"66. (1) Where any property is ordered to be gold by public auction in execution of a decree the Court shall cause a proclamation of the intended sale to be (drawn up) in the language of such court. (2) Such proclamation shall be drawn up after notice to the decree-holder and judgment-debtor and shall state the time and place of sale, and specify as accurately as possible: (a) the property to be sold; (b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or part of an estate paying revenue to the Government. " (c ). . . . . . . . . (d ). . . . . . . . . (e) the value of the property as stated (i) by the decree-holder and (ii) by the judgment-debtor; and (f) every other thing which the court considers material for a pur- chaser to know in order to judge of the nature and value of the proptrty. "

( 3 ) THE court below instead of directing the value of the property as stated by the decree-holder aud judgment-debtor 10 be specified in the proclamation of sale, on the petition of the decree-holder, has now reduced the upset price. The first question that arises is whether any power is given to the court to either reduce or increase the upset price. The only provision that is brought to our notice is Rule 199 of the Civil Rules of Practice. Rule 199 (2) which relates to the upset price is in the following words:"in cases in which the court may consider that the applicant should not be allowed to bid for less than a sum to be fixed, it shall be competent to the court to give leave to bid at the sale, only on condition that the applicant s bid shall not be less than the amount to fixed by the court, which amount shall, as far as practicable, be determined with reference to the probable market value of the property or of the lot or lots into which the property is divided for sale "thus it would appear that under the above provision the court could fix the upset price only when there is a petition by the decree-holder to bid. Excepting this there is no other provision in the Civil Procedure Code to fix the upset price. Identical question had come up for consideration in the ca

Click Here to Read the rest of this document