Judgment :- The civil revision petitioner herein is the applicant/third party in E.A.No.151 of 2007, in E.P.No.56 of 2004, in O.S.No.188 of 2003, on the file of the Sub-Court, Kallakurichi. The civil revision petitioner has filed an execution application in E.A.No.157 of 2007, praying to set aside the Court auction dated 18.04.2007, conducted in E.P.No.56 of 2004, in O.S.No.188 of 2003. The same was dismissed on 25.08.2008. Against this order, the revision has been filed. 2. The revision petitioner/third party applicant has inter-alia stated that the first respondent has filed a suit in O.S.No.188 of 2003 against the second respondent for recovery of money. The same was decreed on 211. 2003. Pursuant to the decree, the first respondent has filed E.P.No.56 of 2004 for attachment of nine items of immovable properties of the second respondent. Out of these nine items of properties, the eighth item of property has been purchased by the first respondent in the Court auction after obtaining permission from the Court. But, so far, the said auction had not been confirmed by the Court. .3. The revision petitioner has further stated that he had filed a suit in O.S.No.681 of 2002 against the second respondent herein, on the file of the District Munsif Court, Kallakurichi. The same was decreed. Pursuant to the decree, the revision petitioner attached the immovable property of the second respondent, including the eighth item of property, which was subsequently purchased by the first respondent after a period of one year. The revision petitioner has submitted that there is a relevant entry in the encumbrance certificate also regard the said attachment as per decree passed in O.S.No.681 of 2002. 4. The revision petitioner further stated that the Court auction was conducted without scrutinising the title of the eighth item of property. Further, the second respondent colluded with the first respondent for conducting the public auction. 5. The first respondent has filed a counter statement and denied the allegations made by the revision petitioner. The first respondent stated that the eighth item of property was not auctioned, but the respondent had obtained permission from the Court after filing necessary papers and knocked down the property in the public auction. There are no grounds to set aside the said auction. Further, the execution application is not maintainable. The first respondent stated that the eighth item of property was not auctioned, but the respondent had obtained permission from the Court after filing necessary papers and knocked down the property in the public auction. There are no grounds to set aside the said auction. Further, the execution application is not maintainable. Other than this property, some other property belonging to the second respondent is also available to be brought to a public auction for executing the revision petitioners decree. As such, the said application is not maintainable and the first respondent has prayed to dismiss the same. .6. The short facts of the case are as follows:- .The first respondent/plaintiff had filed a suit in O.S.No.188 of 2003 before the Sub Court, Kallakurichi for recovery of Rs.1,26,800/- against the second respondent/defendant. The suit was set ex-parte. Pursuant to this ex-party decree, the first respondent/plaintiff/decree holder has filed E.P.No.56 of 2004 in O.S.No.188 of 2003 on the file of the Sub-Court, Kallakurichi. As per the Decree, the petitioner/decree holder had purchased the eighth item of property. The revision petitioner has challenged the auction purchase of eighth item of property, dated 18.04.2007, before the Sub-Court, Kallakurichi, in E.A.No.151 of 2007 and sought for setting aside the said auction purchase. This application was dismissed. 7. Aggreived by the said Order passed in E.A.No.151 of 2007, on the file of the Sub-Court, Kallakurichi, the revision petition has been filed. 8. Learned counsel appearing for the revision petitioner contended that the eighth item of property mentioned in the E.P. Proceedings in E.P.No.56 of 2004 had already been attached on 10.06.2003. Without considering this aspect of the matter, the Court had permitted the auction, which is against law. Further, the learned counsel contended that the first and second respondents have colluded with each other to defeat the decree of the revision petitioner. The learned counsel further pointed out that the first and second respondents had collusively obtained an ex-parte decree passed in O.S.No.188 of 2003, dated 211. 2003. The learned E.P.Court had also failed to see that in the sale proclamation, the prior attachment of the eighth item of property by this petitioner, was not mentioned. The learned counsel also raised a legal issue stating that order 21, Rule 66 has not been complied with while proclaiming the sale. 2003. The learned E.P.Court had also failed to see that in the sale proclamation, the prior attachment of the eighth item of property by this petitioner, was not mentioned. The learned counsel also raised a legal issue stating that order 21, Rule 66 has not been complied with while proclaiming the sale. The learned counsel, in support of his contentions, has cited the following Judgment made in AIR 1939 Madras 250, Ayyappa Naicker v. Kasiperumal Nayakar and others, the relevant head notes of which are as follows: "(a) Civil P. C. (1908), S. 115 - Applicant whether had locus standi to apply under O. 21, R. 90 is question of jurisdiction (Per Varadachariar J. In the Order of Reference). Whether the applicant had a locus standi to apply under O. 21, R. 90, Civil P.C., to set aside sale is a question of jurisdiction within the meaning of S. 115 : AIR 1921 Mad 157 (FB), Foll. Civil P.C (1908), O. 21, R. 90 - Person obtaining attachment before judgment is person whose interests are affected by sale and he can apply under O. 21, Rule 90 -Whether he had obtained decree before his application under O. 21, R. 90 or not does make any differences ; 27 MLJ 302 = AIR 1915 Mad 541 = 26 IC 93, Overruled (Per Full Bench)." 9. Learned counsel appearing for the first respondent has argued that he had resisted the suit application inter alia on the grounds that the petitioner in pursuance of the decree alleged to have been obtained by him, had not brought the property for sale and since the first respondent brought the property for sale first and there being no illegality or fraud, the sale in his favour cannot be set aside. The executing Court, by order dated 25.08.2008 rightly dismissed the application filed by the petitioner holding that both the petitioner and the first respondent are simple mortgage creditors and the petitioner cannot claim priority over the first respondent and that the sale brought by the first respondent was earlier and therefore it is valid and binding. However, the petitioner was given liberty to exercise his rights through separate proceedings. As against the same, the petitioner has invoked the jurisdiction of this Honble Court exercised under Section 115 of the Code of Civil Procedure by filing the captioned civil revision petition. However, the petitioner was given liberty to exercise his rights through separate proceedings. As against the same, the petitioner has invoked the jurisdiction of this Honble Court exercised under Section 115 of the Code of Civil Procedure by filing the captioned civil revision petition. The Civil Revision Petition ought not to have been numbered especially since as against the dismissal of the petition under Order 21 Rule 90 of the Code of Civil Procedure, appeal is provided under Rule 1(i) of Order 43 of the Code of Civil Procedure. In fact, Section 115 of the Code of Civil Procedure specifically mandates that if there be an appeal remedy, no revision would lie. Therefore, it has been argued that the civil revision petition filed by the petitioner challenging the dismissal of the application filed under Order 21, Rule 90 of the Code of Civil Procedure is misconceived, untenable and liable to be dismissed. In support of his contentions, the citations of Judgment made in various cases has been submitted namely: I. 1992 (1) MLJ 271 The revision petition is not maintainable. It is against an order rejecting application to set aside a Court auction sale without numbering it. When the office raised objection as to the maintainability, learned counsel made an endorsement to the effect the petition in the Court below would fall under Sec.47 of the Code of Civil Procedure therefore, it was revisable. Secondly, the learned counsel raised the contention that petition was rejected by the Court below and it was not dismissed. According to him, only there is a dismissal of a petition, an appeal will lie and otherwise revision is the only remedy. 2. Taking the second contention first, it is seen from O.43, Rule 1(i) of the Code of Civil Procedure that an order under Rule 72 or Rule 92 of O.21 Code of Civil Procedure setting aside or refusing to set aside the sale, is made appealable. In this case, the order is one of rejection of the application even at the threshold. That certainly amount in law to refusal through it is one of rejection in form. The rule refer to dismissal or rejection. Hence, the expression refusing to set aside the sale cover the rejection of the application without numbering the same and taking it on. That certainly amount in law to refusal through it is one of rejection in form. The rule refer to dismissal or rejection. Hence, the expression refusing to set aside the sale cover the rejection of the application without numbering the same and taking it on. II.AIR 1996 KARNATAKA 128 Order 21 Rule 92 provides as per sub-rule (1) "where no applications is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the Court shall made an order confirming the sale and thereupon the sale shall become absolute". Reading of sub-rule (1) of Rule 92 per se reveals that the application under Order 21 Rule 90 is to be disposed of and even dismissed or disallowed by this Court, then the Court will make order making the sale absolute. The order passed under Rule 92 disposing of the application or objection under Order 21 Rule 90 and thereafter confirming the sale has been declared to be as appealable order under the provisions of Order 43 Rule 1(i) r/2. Sec.104 of the C.P.C. As the order impugned herein is appealable under Sec.104 r/w.Order 43 Rule 1(j) and so in view of the provision of sub-section (2) of Sec.115 of C.P.C. which reads as under:- "The High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto" 3. This revision in my opinion is not worth being entertained and admitted, because admitting the revision will not serve any purpose and even if the Court feels that the order suffers from illegality or irregularity, it cannot be interfered with or varied or reversed. III. 2004 (3) M.L.J. 504 Civil Procedure Code (V of 1908), Sec.47, O.21, Rule 90 and O.43, Rule 1(j) - Execution proceedings - Court auction sale challenged by the judgment-debtor by invoking Sec.47, C.P.C. Allegation of irregularities in conducting Court auction sale - Application allowed - Order challenged by the auction purchaser in appeal -Appeal dismissed on the ground that only revision lies to the High Court - Allegations contained in the application to set aside the Court auction sale attract O.21, Rule 90 - Though the application is filed under Sec.47, requirements of that provision are not present -Appeal filed by the auction purchaser is maintainable - Matter remitted. IV.AIR 1975 Madras 36 In my view, this contention is also an unsustainable one. It is no doubt true that sub-cl.(1) of Rule 104 of Order 21, Civil P.C. Makes provision for a court before which an application under any of the rules foregoing Rule 104 has been filed, to fix a date for the hearing of the application and that no such provision is made in respect of an application under Rule 105 of Order 21, Civil P.C. That cannot, however, be taken to mean that in respect of an application under Order 21, Rule 105, Civil P.C. It was incumbent upon the applicant to be personally present on each and every day to which the application stood posted and that his non-appearance in court on any day in which the petition was called should necessarily result in the dismissal of his application and that an aggrieved applicant cannot canvass the correctness of that order in appeal. Order 43, Rule 1 (ii), Civil P.c. Is to the following effect - "1. An appeal shall lie from the following orders under the provisions of Sec.104, namely - (jj) an order rejecting an application made under sub-rule (1) of Rule 105 of Order XX1 provided an order on the main application referred to in sub-rule (1) of Rule 104 of that order is appealable". A reading of this provision clearly shows that what is required for an appeal being preferred against a rejection of an application under sub-rule (1) of Rule 105 of Order 21, Civil P.C is that the main application referred to in sub-rule (1) of Rule 104 of Order 21, Civil P.C., is an appealable order. Undoubtedly an order of dismissal of an application under Order 21, Rule 90, Civil P.C. Is an appealable one order under Order 43, Rule 1(j). Therefore, the appellant is certainly entitled to file an appeal as against the dismissal of E.A. 716 of 1969, which was filed under Order 21, Rule 105, Civil P.C. Nowhere it is stated in Order 43, Rule 1 (jj) that where an application under Rule 105 had been dismissed for default, it was not open to the aggrieved party to file an appeal. In such circumstances, the second objection raised by the learned counsel for the respondents is also clearly untenable. In such circumstances, the second objection raised by the learned counsel for the respondents is also clearly untenable. V.AIR 1975 CALCUTTA 80 (1) FULL BENCH B) Civil P.C. (5 of 1908), O.43, R.1(j) and O.21, R.90 -Application under O.21, R.90 dismissed for default - Order is appealable. An appeal lies under O.43, R.1 (j) from an order dismissing for default an application under O.21, R.90. There is no distinction in principle between an order passed on an application under O.21, R.90 dismissing it for default either for the non-appearance of one of the parties or for the nonappearance of both the parties. AIR 1926 Cal 73. Overruled; air 1929 Cal 407(2), Approved; AIR 1968 Madth Pra 196, Diss. VI.AIR 1995 KARNATAKA 30 Para 14: Sri Manjunath, the learned counsel for the petitioner, further submits that Order 43, Rule (1) (j) allows an appeal from an order made under Rule 72 or Rule 92 of Order XX1 setting aside or refusing to set aside the sale. By Rule 92, the Court shall made an order confirming the sale and in the absence of such an order confirming sale, the order under revision cannot be construed as an order attracted by Order XVIII, Rule 1(j), C.P.C. This contention of the learned counsel is also liable to be rejected, for Order XVII, Rule 1(j) does not relate to an order made under Order XXI Rule 92, C.P.C. It relates only to an order setting aside or refusing to set aside sale under Rule 92 of Order XXI, C.P.C. Hence the question whether the sale is confirmed or not- has no relevance. Para 16: In view of the aforesaid discussion, it is clear that the order rejecting LA.No.III filed by the petitioner under Rule 90 of Order XXI, C.P.C. Must be considered to be an order made under Rule 92 of Order XXI, C.P.C. From which an appeal shall lie under Order XLIII, Rule 1(j), C.P.C. The revision petition is therefore not maintainable. VII.AIR 1966 ALLAHABAD 188 (Vol.53, C57) Civil P.C. (5 of 1908), O.21, R.90, R.92, O.43, R.1(j) and S.115 -Dismissal of application under O.21, R.90 - Order appealable under O.43, R.1(j) - No revision lies against order. VII.AIR 1966 ALLAHABAD 188 (Vol.53, C57) Civil P.C. (5 of 1908), O.21, R.90, R.92, O.43, R.1(j) and S.115 -Dismissal of application under O.21, R.90 - Order appealable under O.43, R.1(j) - No revision lies against order. The order contemplated by O.43, R.1(j) is one setting aside a sale as contemplated by O.21, R.92(2) or an order refusing to set aside a sale as a consequence of which the sale is confirmed and the sale cbecomes absolute under O.21, R.92(1). Therefore, an appeal lies under O.43, R.1(j), against an order dismissing an application under O.21, R.90 refusing to set aside the sale. No revision, therefore, is competent against the order." 10. Considering the facts and circumstances of the case, scrutiny of orders of the learned Sub Judge, Kallakurichi, arguments advanced by the learned counsel appearing on either side and perusal of written arguments submitted by the learned counsels for their respective parties and citations quoted thereof, this Court considers the following relevant aspects for coming to a decision on this issue. 11. The revision petitioner has filed O.S.No.781 of 2002, on the file of the District Munsif Court, Kallakurichi against the second respondent/Natesa Udayar and obtained decree against him. Pursuant to this decree, the revision petitioner attached some properties of the second respondent, including the eighth item of property (mentioned in E.P.No.56 of 2004) on 10.06.2003. As such, the revision petitioners name is standing in the encumbrance certificate relating to the said property. It has been contended by the revision petitioner that the first respondent had purchased the eighth item of property. Subsequent, to his purchase of the said property. The above dispute can be determined only after recording evidence of both parties and the documentary evidence of the parties concerned. As such, this Court is not warranted to interfere with the order passed by the learned Sub-Judge, Kallakurichit, in E.A.No.151 of 2007 in E.P.No.56 of 2004 in O.S.No.188 of 2003, dated 25.08.2008, as it is found to be correct. Accordingly, this Court confirms the order passed by the learned Sub-Judge, Kallakurichi. 12. In the result, the above Civil Revision Petition is dismissed and the order, dated 25.08.2008, in E.A.No.151 of 2007 in E.P.No.56 of 2004, in O.S.No.188 of 2003, passed by the Sub Court, Kallakurichi, is confirmed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.