JUDGMENT

1. This miscellaneous appeal by the judgment-debtor is directed against the order of the Civil Judge of Lucknow dismissing his application to set aside the sale of his house. The facts leading to the present litigation are that the appellant executed a mortgage for Rs. 40,000 in favour of the respondent on 16th April 1937. On 28rd August 1938, the appellant made a further mortgage to one Mahadeo Prasad for a sum of Rs. 8000. The respondent brought a suit on 12th January 1940, against the appellant in which the subsequent mortgagee Mahadeo Prasad was also impleaded. A decree for absolute sale was passed. On 23rd January 1941, the respondent applied for execution of this decree. Proceedings under Order 21, Rule 66, Civil P.C., were taken by the Court. There was a considerable difference of opinion between the appellant and the respondent in regard to the valuation of the property and the mode of sale. The respondent valued the property at Rs. 48,000 while, according to the appellant, it was worth very much more. Objections were filed by the appellant on 5th May 1941. In para, 1 of these objections it was stated that the appellant's property had been grossly undervalued by the respondent, who had omitted to mention its income with a view that the intending bidders may not be able to form a correct opinion about the valuation and offer a reasonable price The property under sale was stated to contain two buildings containing 15 independent suites, all yielding an yearly income of about Rs. 6120, according to which the price calculated at the market rate came to about Rs 1,22,400. The applicant stated that in order to encourage the intending bidders it was necessary that the income of each of the 15 suites be separately mentioned, that the property be not sold, en bloc but in 15 separate suites as independent items of property. Accordingly, it was prayed that the value of the property be fixed at Rs. 1,22,400, that the income of each suite be mentioned separately as shown in the annexure filed with the objections and that the entire property be sold in 15 separate suites and not en bloc. According to the annexure and the map filed in the case, it appears that the building is situate on Plots Nos. 37 and 38 and Plot No. 40, on Rutledge Road, near Hazratganj, Lucknow; the house is a three storeyed building and is let out in separate flats to various tenants. The annexure gives the rent of each of the flats on the ground floor, first floor and the top floor. The total monthly rent is mentioned in the annexure as Rs. 510.

2. The Civil Judge appointed one Mr. Abdul Jabbar, a pleader, as commissioner to value the building in question. It appears from the order sheet that the appointment of the commissioner was agreed to by both parties. The Court ordered that the parties shall produce evidence before the commissioner in support of their respective cases. Some evidence as regards the rent fetched by the building was produced before the commissioner. The monthly rent of the building is mentioned in the commissioner's report as Rs. 250 per mensem or Rs. 3000 per annum. The commissioner after deducting the cost of annual repairs and taxes to the municipal board, etc., gave a net profit of Rs. 2210 in respect of the building situate on plots Nos. 37 and 38. He calculated the value of the building at 20 years' profit after allowing for some depreciation. The value given by the commissioner in respect of this building was Rs. 43,095. As regards the building on plot No. 40, the rent given was Rs. 20 per month and the valuation of the building with'the plot was Rs. 21,547-8-0. The total value of the entire building given by the commissioner was Rs. 64,642-8-0.

3. The appellant filed objections against the report of the commissioner. These objections reiterated the fact that the yearly income was Rs. 6120 and pointed out various mistakes in the rent given by the commissioner. The objections further challenged the amount of annual repairs an