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SHAJIKUMAR, S/O.KUNJU KRISHNA PANICKER v. KRISHNAN, KRISHNA SADANAM - CRP No. 1000 of 2006  RD-KL 1340 (17 January 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCRP No. 1000 of 2006()
1. SHAJIKUMAR, S/O.KUNJU KRISHNA PANICKER,
1. KRISHNAN, KRISHNA SADANAM,
2. SUMATHY, W/O.KRISHNAN,
For Petitioner :SRI.R.ANILKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
M.SASIDHARAN NAMBIAR,J.C.R.P.NO.1000 OF 2006
DATED THIS THE 17th DAY OF JANUARY, 2007
ORDERThis revision petition is filed challenging the order passed by executing Court allowing an application filed under Order XXI Rule 9o of Code of Civil Procedure setting aside the sale. Under Sub Rule 2 of Rule 92, where an application under Rule 90 was filed and allowed by the executing Court, the Court shall make an order setting aside the sale, which was done by the executing Court as per order dated, 25.3.06. Order XLIII Rule 1(j) provides that an appeal shall lie from an order passed under Rule 92 of Order XXI, setting aside or refusing to set aside the sale. Under Section 115 of Code of Civil Procedure, when a revision will lie against the order no appeal lies against the order. As an appeal lies under Order XLIII Rule 1(j) against the impugned order, the revision is not maintainable.
2. Learned Counsel appearing for petitioner argued that the sale was set aside after, confirmation of the sale and therefore it is an illegality, which is to be corrected by this Court in exercise of the revisional jurisdiction and therefore revision is maintainable. When Section 115 of Code of Civil procedure mandates that a revision is not C.R.P.1000/06 2 maintainable when an appeal lie against the order, even if the order is illegal, that is to be challenged in an appeal and not revision. Petitioner can raise all the contentions in the appeal and challenge the order in E.A.307/05 on all the available grounds. Revision petition is dismissed with liberty to file an appeal.
M.SASIDHARAN NAMBIAR,JUDGEAcd C.R.P.1000/06 3
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