Judgment :- 1. This appeal is directed against the order and decretal order dated 5.2.1987 in E.A. 827/83 in E.P. 129/82 in O.S. 438/81 on the file of the Sub Court, Coimbatore. 2. The appellants in this appeal are respondents 2 and 3 in the above referred to Execution Application. Respondent No. 2 herein is the 1st respondent in that proceeding. The 1st respondent in this appeal is the person, who moved the above referred to application before the lower Court to set aside the sale. The application filed by the 1st respondent in this appeal was allowed and the sale was set aside. Aggrieved against that order, respondents 2 and 3 in that proceeding have filed this appeal before this Court. 3. A few facts may be stated as they are necessary to appreciate the rival contentions of the parties to this appeal. In this judgment the parties to this appeal are referred to in the same rank in which they are described in the original Execution Application proceedings. The 2nd respondent is the decree holder in O.S. 438/81 on the file of the Sub Court, Coimbatore. The judgment debtor in that suit is the first respondent. The third respondent is the Court auction purchaser. That suit was laid on a mortgage created by the 1st respondent in favour of the 2nd respondent and it ended in a final decree. In execution of that mortgage, the decree holder/2nd respondent filed on 15.4.1982 the Execution Petition, which was numbered and taken on file as E.P. 129/92. In execution of that decree the mortgaged properties were brought to sale through Court and the third respondent before the lower Court purchased the same in the Court auction held on 12.1.1983. These facts are not in dispute. Likewise the fact that the judgment debtor filed an application before the very same Court to declare him as an insolvent under the provisions of the Provincial Insolvency Act on 29.4.1982 and an interim Receiver came to be appointed on 5.9.1982 is also not in dispute. The order challenged in this appeal also shows that the E.P. referred to above filed on 15.4.1982 was returned pointing out certain defects on 19.4.1982; after compliance it was re-presented on 14.6.1982. The order challenged in this appeal also shows that the E.P. referred to above filed on 15.4.1982 was returned pointing out certain defects on 19.4.1982; after compliance it was re-presented on 14.6.1982. At this stage it will be noticed that in the above execution proceedings the Official Receiver of Coimbatore seems to have been impleaded as a party to that proceeding. Under these circumstances, the Executing Court seems to have returned the execution petition on 19.6.1982 questioning as to how the Official Receiver came to be made as a party to the execution petition. The decree holder re-presented the execution petition stating that on 29.4.1982 an Insolvency Petition numbered as I.P. 12/82 had been admitted so far as it relates to the judgment debtor is concerned. The Executing Court seems to have insisted for production of a copy of that Insolvency Petition. Under these circumstances, the counsel for the decree holder had made an endorsement in the execution petition on 9.7.1982 stating that the Official Receiver is given up from that proceeding and appropriate steps will be taken to implead the Official Receiver as and when the necessity arises. Thus, the execution came to be registered on 12.7.1982 and the Court auction took place on 12.1.1983. 4. After the sale in favour of the third respondent in the present proceedings before the lower Court the Official Receiver filed E.A. 826/83 to set aside the sale and one of the creditors of the judgment debtor, who is stated to be holding another decree against the very same judgment debtor, filed E.A. 827/83 for setting aside the very same sale. The sale, as already referred to, by me, took place on 12.1.1983 and the 3rd respondent in the present proceedings before the lower Court is the successful buyer. In the application filed by the creditor to set aside the sale, several grounds, viz., want of due publicity; inadequacy of price; and want of notice to the Official Receiver were taken. As far as the application filed by the Official Receiver is concerned, the only ground on which the sale was sought to be set aside was the ground of “no notice” to the Official Receiver. The trial Judge disposed of both the applications by a common order dated 5.2.1987 setting aside the sale. As far as the application filed by the Official Receiver is concerned, the only ground on which the sale was sought to be set aside was the ground of “no notice” to the Official Receiver. The trial Judge disposed of both the applications by a common order dated 5.2.1987 setting aside the sale. This appeal is filed, as already stated, by the decree holder in O.S. 438/81 and the Court auction purchaser in the said proceedings, who figured as respondents 2 and 3 in the proceedings before the Court below. 5. I heard Mr. T.R. Rajagopalan learned senior counsel appearing for the appellants in this appeal, assisted by Mrs. N. Krishnaveni, learned counsel and Mr. B. Mani, learned Government Advocate on the civil side. Initially I posed a question to Mrs. N. Krishnaveni learned counsel appearing for the appellants, viz., when there are two applications viz., E.A. Nos. 826 and 827 of 1983 to set aside the same sale, and only one appeal having been filed before this Court against the order in one of those applications only, could not the order unappealed before this Court stand as a res judicata in hearing this appeal on merits. 6. In answer to this, the learned senior counsel brought to my notice several judgments and argued that in a matter like this the principle of res judicata as enunciated in Section 11 of the Civil Procedure Code would not be attracted. In other words according to the learned senior counsel, when in one proceeding two applications have come to be filed and when there is a common issue in both those applications, then the filing of one appeal alone would be sufficient and the non filing of the appeal against the other order on the same issue could not be put forward as a bar to dispose of the present appeal on merits. The learned senior counsel on facts submitted that though two applications were before the Executing Court to set aside the sale, each containing different grounds of attack, yet the Court below was inclined to set aside the sale on the only ground of “want of notice to the Official Receiver”. The learned senior counsel on facts submitted that though two applications were before the Executing Court to set aside the sale, each containing different grounds of attack, yet the Court below was inclined to set aside the sale on the only ground of “want of notice to the Official Receiver”. Therefore, the scope and object of the present appeal before this Court is to get rid of the order as it is passed by the learned trial Judge and there would be no need at all to file two appeals. In support’ of this line of argument the learned Senior counsel submitted the judgment of the Honourable Supreme Court of India reported in (1962) 3 759 (Badri Narayan Singh v. Kamdeo Prasad Singh and another). It had been held in that case that where two appeals arose out of one proceeding, but the subject matter of each appeal was different, the decision of the High Court in the appeals though stated in one judgment, really amounted to two decisions and not to one decision common to both the appeals. Relying on this judgment, the learned senior counsel submitted that the crux of the matter would be whether the two decisions relate to one issue only or it relates to different issues. In the case before the Supreme Court, two decisions were rendered on two different issues and therefore, the non filing of an appeal against one order though disposed of by a common judgment, was held to operate against the other appeal on the principle of res judicata. 7. The next judgment cited by the learned senior counsel is the one reported in A.I.R. 1953 S.C. 419 (Narhari and others v. Shanker and others) where it had been held as follows: — “From the decree of trial Court in favour of the plaintiff two separate appeals were taken by two sets of the defendants. The appellate Court allowed both the appeals and dismissed the plaintiffs suit by one judgment and ordered a copy of the judgment to be placed on the file of the other connected appeal. Two decrees were prepared. The plaintiffs preferred two appeals one of the appeal was time barred and on the principle of res judicata the High Court dismissed both the appeals. Held, that it was not necessary to tile two separate appeals in this cease. Two decrees were prepared. The plaintiffs preferred two appeals one of the appeal was time barred and on the principle of res judicata the High Court dismissed both the appeals. Held, that it was not necessary to tile two separate appeals in this cease. The question of res judicata arose only when there were two suits. As there was one suit and both the decrees were in the same case and based on the same judgment and the matter decided concerned the entire suit the principle of res judicata did not apply”. 8. The next judgment relied upon by the learned counsel is the one reported in I.L.R. 29 Madras 333. Panchanada Velan v. Vaithinatha Sastrigal and others , wherein it has been held as follows : — “Where cross-suits between the same parties on the same facts were tried together and judgment was given on the same day but separate decrees were passed and an appeal was preferred against one of the decrees alone: Held, that the decree unappealed did not operate as a bar under Section 13 of the Code of Civil Procedure “as it stood then” so as preclude the Appellate Court from dealing with the judgment appealed against. The doctrine of res judicata has no application when the very object of the appeal in substance if not in form, is to get rid of the decision which is pleaded in bar”. 9. The fourth judgment relied upon by the learned senior counsel is the one reported in A.I.R. 1932 Madras 689 = 35 L.W. 444 Appa and others v. Kachai Bayyan Kutti and others , wherein it has been held as follows : — “There was one original suit against the decree in which in favour of the plaintiffs, two appeals were preferred to the lower appellate Court by two sets of defendants. The result of the appeals was that the suit was dismissed by the lower Appellate Court and a decree dismissing the suit was passed. In such circumstances, the plaintiffs need not file two second appeals it is enough if the plaintiffs file one Second Appeal”. 10. The result of the appeals was that the suit was dismissed by the lower Appellate Court and a decree dismissing the suit was passed. In such circumstances, the plaintiffs need not file two second appeals it is enough if the plaintiffs file one Second Appeal”. 10. The last of the judgments on this line cited by the learned senior counsel is the one reported in A.I.R. 1970 Madras 76, Kathoom Bivi Ammul and another v. Arulappa Nadar and another wherein it has been held as follows: — “Cross suits by parties in respect of same subject matter — Disposal by common judgment on evidence adduced in one suit — Parties consenting to such procedure — Party aggrieved appealing against decree in one suit only — Failure to prefer appeal in the other suit, held, would not operate as res judicata — Object of appeal is to get rid of the decision pleaded in bar.” 11. After going through all these judgments cited by the Bar and on the facts of this case, I have no hesitation in upholding the argument the Learned Senior Counsel for the appellants that the principle of res judicata as enunciated in Section 11 of the Code of Civil Procedure could not be brought into operation in this case to defeat the rights of the appellants in this appeal for hearing this appeal on merits. As already stated, the facts of this case are very clear in that both the applications, one by the Official Receiver and the other by the Private Creditor, came to be filed to set aside the only and one sale which took place on 12.1.1983 in favour of the 3rd respondent before the lower court. Though several grounds were raised in the application filed by the Private Creditor when compared to the only ground raised by the Official Receiver in his application, the trial court was inclined to allow both the applications on the one and only ground, viz. , the sale is invalid on account of failure to take notice to the Official Receiver. In other words both the applications came to be disposed of in favour of the applicants in each of these applications on the only one ground and that is common to both the cases. , the sale is invalid on account of failure to take notice to the Official Receiver. In other words both the applications came to be disposed of in favour of the applicants in each of these applications on the only one ground and that is common to both the cases. Therefore, to borrow the words ‘of the learned Judges, who laid down the law in the above referred to judgments, the present attempt of the appellants in this appeal is to get rid of the order of the lower Court setting aside the sale. Therefor e, I am of the firm opinion that the fact that no appeal was filed against the order in E.A. 826/83 cannot stand in the way of this appeal being heard on merits, especially when both the applications came to be presented only by the official Receiver from a later stage. 12. Then coming to the question whether notice to the Official Receiver is necessary in E:P. 129 of 1982 which resulted in the Court auction sale, one has to necessarily go through the provisions of the Provincial Insolvency Act to find out whether such a notice is necessary. Before that some dates are relevant and they have to be taken note of in this case. 29.4.1982 is the date on which the Insolvency Petition by the judgment debtor seems to have been admitted. 5.9.1982 is the date on which the interim Receiver was appointed. 15.4.1982 is the date on which the execution petition was filed and 12.1.1983 is the date on which the Court auction sale in favour of the third respondent in the present proceedings took place. These dates are not in dispute at all. The only question therefore is, on the admitted facts referred to above, is a notice to the Official Receiver necessary and the failure to take the notice could invalidate the sale in favour of the third respondent. The learned senior counsel for the appellants contended that mere admission of the Insolvency Petition itself would not divest the title of the judgment debtor with reference to his properties and, it continued to be with him till he is adjudicated. The learned senior counsel for the appellants contended that mere admission of the Insolvency Petition itself would not divest the title of the judgment debtor with reference to his properties and, it continued to be with him till he is adjudicated. The learned senior counsel relied upon a judgment of this Court reported in A.I.R. 1939 Madras 438 = 49 L.W. 422 Lakkarajhula Sundaramma v. Dasika Venkatachalamiah Insolvent and another, Purchaser” wherein it has been held as follows: — “An Interim Receiver appointed under Section 20 is only entitled to take immediate possession of such of the debtors property as may be directed by the Court. Therefore, his powers would be those which could have been conferred on a receiver appointed under the Code of Civil Procedure. He does not derive his power by reason of his appointment but in virtue of his taking possession of the properly under the orders of the Court. Hence his appointment has not the same effect as the effect of the appointment of an Official Receiver after adjudication. It is only after adjudication that an insolvent can be said to be divested of his property. It is only then and not till then that the property would vest in the Official Receiver but before the adjudication the debtor continues to be the legal owner of the property. The attachment of the insolvents property by his creditors cannot therefore be invalid on account of the appointment of an interim receiver before the attachment”. Therefore, it is clear that till such time the judgment debtor is adjudicated as an insolvent, he continues to be the legal owner of the property and Official Receiver does not come into the picture at all. There is a lot of difference, according to the learned senior counsel for the appellants, between an Interim Receiver and an Official Receiver. Once the order of adjudication is made, statutorily the properties of the insolvent stand vested with the Court, and if no Receiver is appointed then with the Official Receiver from the date of adjudication. The effect of adjudication is also well known that it will date back to the date on which the Insolvency Petition was admitted. 13. Once the order of adjudication is made, statutorily the properties of the insolvent stand vested with the Court, and if no Receiver is appointed then with the Official Receiver from the date of adjudication. The effect of adjudication is also well known that it will date back to the date on which the Insolvency Petition was admitted. 13. The learned senior counsel further argued that in any event, the decree holder in O.S. 438/81 being a secured creditor, none of the provisions of the Provincial Insolvency Act would come in his way from executing the decree obtained by him against the judgment debtor. For this purpose, the learned senior counsel relied upon Section 28(6) of the Provincial Insolvency Act which states that nothing in that Section shall affect the power of any secured creditor to realise or otherwise deal with the security, in the same manner as he would have been entitled to realise or deal with it if the Section had not been passed. To a similar effect there is another provision contained in Sub Section (2) of Section 51 of the very same Act, which provides that nothing in that Section shall affect the rights of the secured creditor in respect of the property against which the decree is executed. Therefore, the Legislature was fully aware about the rights of a secured creditor and that is why the protection as provided for under Sub section (6) of Section 28 and Sub Section (2) of Section 51 of the Act came to be incorporated, is the submission of the learned senior counsel for the appellants. When I put a question to the learned senior counsel as to whether Section 52 of the Provincial Insolvency Act may come into operation against the interest of the secured creditor, the learned senior counsel would also say that even Section 52 of the Provincial Insolvency-Act would not apply to a case of a secured creditor. In support of all these submissions referred to above, the learned senior counsel relied upon a judgment of this Court reported in A.I.R. 1981 Madras 235 = 94 L.W. 284, R.S.K. Chandrasekaran v. The Official Receiver, Madurai and another . In support of all these submissions referred to above, the learned senior counsel relied upon a judgment of this Court reported in A.I.R. 1981 Madras 235 = 94 L.W. 284, R.S.K. Chandrasekaran v. The Official Receiver, Madurai and another . Two learned Judges of this Court dealing with the scope and ambit of Sub Sections (2), (6) and (7) of Section 28 of the Provincial Insolvency Act held as follows:— “In our opinion, it is not even necessary to go so far, in view of the provision contained in Sub Section (6) of Section 28, that nothing contained in the Section shall affect the power of any secured creditor to realise or otherwise deal with the security in the same manner as he would be entitled to realise or deal with it, if that section had not been passed, and, when it so provides, it proceeds to create a fiction that, with regard to the rights of a “secured creditor referred to in sub-section (6) of Section 28, neither sub-section (2) nor sub section (7) of Section 28 should be deemed to have been in existence or enacted. If so, there is no scope for applying either the provisions of vesting or the theory of relation back, so as to restrain or curtail the power of the secured creditor saved under sub-section (6) of Section 28”. The sale in that case was held without notice to the Official Receiver and in that context only the Division Bench of this Court had laid down the law as stated above. The learned senior counsel also relied upon another judgment of this Court reported in A.I.R. 1936 Madras 121 = 43 L.W. 32 (Karumoori Narasimhamurthy v. Official Receiver and others). In that case two properties were brought to sale through Court. One is the landed property and the other is a house property. Steps were taken to set aside the sale in respect of both the items. One of other grounds raised as far as the house property is concerned is that no notice was issued to the Interim Receiver. In that context, two learned Judges of this Court held as follows: — “Sale in execution of a decree pending insolvency petition against judgment debtor is not bad for want of notice to the interim Official Receiver, specially when the property has not vested in the interim Receiver”. In that context, two learned Judges of this Court held as follows: — “Sale in execution of a decree pending insolvency petition against judgment debtor is not bad for want of notice to the interim Official Receiver, specially when the property has not vested in the interim Receiver”. The learned senior counsel also relied upon the judgment of this Court reported in A.I.R. 1926 Madras 194 (Official Receiver, Tanjore v. R.M. Nagaratna Mudaliar), on the question whether Section 52 of the Provincial Insolvency Act will have any application to the facts of this case. In that case also, there was a mortgage decree. In that context, the scope and purport of Section 52 of the Provincial Insolvency Act came to be considered. The argument was after execution was issued, if the Executing Court receives notice of the I.P. proceedings of the judgment debtor it is bound to direct the property if in its possession to be delivered to the Official Receiver in insolvency. The judgment records that such a requirement does not apply to mortgage decree holders and the Judges were pleased to observe that it was obvious enough. It is held there that “Section 52 is somewhat generally worded, but it must receive a construction not repugnant to the general scheme of the Act, namely, to save the rights of secured creditors. It is sufficient to refer in this connection to Section 28(6), Section 47 and Section 51 (2)”..I am clearly of the opinion that Section 52 does not apply. The other learned Judge constituting the Bench, viz., His Lordship Mr. Justice Madhavan Nair also agreeing with Honourable Justice Mr. Venkatasubba Rao held as follows: — “The second question for decision arises in connection with the argument based on Section 52 of the Provincial Insolvency Act. According to that section, where execution of a decree has issued against any property of a debtor which is sale able in execution and before it has been actually sold, notice is given to the Executing Court that an insolvency petition by or against the debtor has been admitted then the E Executing Court is bound, on application to that effect, to direct the property if in the possession of the Court to be delivered to the receiver. Although a secured creditor is not expressly excluded from the operation of this Section, it seems to me that the Section does not affect him. Although a secured creditor is not expressly excluded from the operation of this Section, it seems to me that the Section does not affect him. The Provincial Insolvency Act takes special care to preserve the power of secured creditors to realize or otherwise deal with their securities, as may be seen from Section 28(6) and 51 (2). The exemption from the operation of the section which must be understood to have been thus given to secured creditors must, in my opinion, be extended to money decree holders who have obtained securities in the course of execution, as in the present case. It is contended that Section 52 does not apply to mortgage decree holders”. In view of the categorical pronouncement of this Court as stated above and as rightly submitted by the learned senior counsel for the appellants Section 52 of the Provincial Insolvency Act also would not come in the way of the secured decree holder from executing his decree. Mr. B. Mani, learned Government Advocate appearing for the 1st respondent is not in a position to bring to my notice any judgment, which enables me to take a contrary view. All the judgments relied upon by the learned trial Judge and referred to in his judgment for setting aside the sale are all cases, which on facts are distinguishable and as such they do not fit into the facts of the case on hand. In any event they do not lay down the law on the issue on hand contrary to the several findments cited by the learned senior counsel for the appellants. 14. In view of the law laid down in the judgments above referred to and brought to my notice by the learned senior counsel, I have no hesitation in holding that a secured creditor stands on a special footing when compared to an ordinary creditor, while their respective right to execute the decree is tested in the face of the provisions contained in the Provincial Insolvency Act. The decree holder in this case, viz. , the 2nd respondent before the lower Court is a secured creditor/decree holder. Therefore, it is clear that the second respondent before the lower Court is not legally bound to take notice in his execution proceedings to the Official Receiver. The decree holder in this case, viz. , the 2nd respondent before the lower Court is a secured creditor/decree holder. Therefore, it is clear that the second respondent before the lower Court is not legally bound to take notice in his execution proceedings to the Official Receiver. Though initially, the decree holder made the Official Receiver as a party to the execution proceedings, yet at a later point of time, the Official Receiver was given up at the instance of the decree holder in the Execution Petition. No statutory provision is brought to my notice by the learned Government Advocate appearing in this case to impose an obligation on the secured decree holder to take notice to the Official Receiver in a matter like this. Therefore, the sale held through Court at the instance of the secured decree holder in the Execution Proceedings, resulting in the purchase of the property in the Court auction by the third respondent in the lower Court, cannot be invalidated on the ground that the decree holder had not taken notice to the Official Receiver. Under the circumstances, I am of the opinion that the learned trial Judge had committed an error of law in allowing the applications to set aside the sale and accordingly, the appeal is allowed. The order and decretal order dated 5.2.1987 in E.A. Nos. 826 and 827 of 1983 in E.P. 129/82 in O.S. 438 of 1981 on the file of Sub Court, Coimbatore is set aside. However, there will be no order as to costs.