RAGHUNATHA RAJU Vs. KASIM KHAN

JUDGEMENT

(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:

(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: