The court has no power to fix the upset price, excepting Rule 199 of the Civil Rules of Practice and since there was no petition by the decree-holder to bid as enjoined in that rule this rule was not applicable.

MANOHAR PERSHAD, J.

( 1 ) THIS appeal is on behalf of the judgment-debtor and is directed against the order of the executing court D/-18-10-63 reducing the upset price as prayed by the decree-holder. We were very doubtful as to whether this was an appeal able order. We therefore asked the learned counsel to satisfy us on this point. The learned Counsel relying on the case of Venkataswami vs. Nagayya, AIR 1925 Mad 1142 contended that the appeal was proper and maintainable. We do not agree with the contention of the Counsel. AIR 1925 Mad 1142 was a case where the question was whether a second appeal was entertainable. No doubt in considering that question there was a reference to 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 appeal able order, As the order passed by the lower court does not either relate 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 that 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 price, excepting Rule 199 of the Civil Rules of Practice and since there was no petition by the decree-holder to bid as enjoined in that rule this rule was not applicable. We find sufficient force in the contention of the learned counsel for the petitioner.

( 3 ) ORDER 21, Rule 66 which is the relevant provision reads thus:--"66 (1) Where any property is ordered to be sold by public auction in execution of a decree the Court shall cause a proclamation of the intended sale to he (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 purchaser to know in order to judge of the nature and value of the property. " The court below instead of directing the value of the property as staled by the decree-holder and judgment-debtor to 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.

( 4 ) 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 he allowed to bid for less than a sum to be filed, it shall be competent to the court to give leave to bid at sale, only on condition that the applicants bid shall not be less than the amount so 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

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