Judgment : The judgment-debtor third defendant in O.S.No.60 of 1985, filed unnumbered E.A. of 1990 in E.P.No.30 of 1986 to set aside the sale under O.21, Rule 90, C.P.C. she also filed E.A.No.7 of 1988 to dispense with the calling of security demanded of from her and to permit her to continue the main execution petition. That application was contested by the respondents. The lower court following the judgment reported in Karuppana Gounder v. Velappa Naicker, (1988)1 L.W. 18, dismissed the said application in E.A.No.7 of 1988. Aggrieved by the same, the judgment debtor/third defendant has filed C.R.P.No.2016 of 1990. The unnumbered E.P. of 1990 filed to set aside the sale, stated supra, was also dismissed, against which C.M.A.No.583 of 1992 has been preferred. Consequently E.P.No.39 of 1986 filed for sale of the property was ordered. Aggrieved by the order passed therein, C.R.P.No.3064 of 1990 has been preferred. 2. The learned counsel appearing for the petitioner has submitted that the lower court while dismissing the application ought to have given an opportunity to furnish the security as contemplated under Proviso to 0.21, Rule 90 of the Code of Civil Procedure. The said proviso reads as follows: “90(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a ratable distribution of assets, or whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (3) No application to set aside sale under this rule shall be entertained upon any ground which the applicant could have taken on for before the date on which the proclamation of sale was drawn up”. 3. In the present case, the Lower Court proceeded on the basis of the judgment reported in Karuppana Gounder v. Velappa Naicker, (1988)1 L.W. 18, that the court has no powers to dispense with the security. The Division Bench of this Court in Ramaswamy Gounder v. Ramaswamy Gounder, (1995)2 M.L.J. 413 . 3. In the present case, the Lower Court proceeded on the basis of the judgment reported in Karuppana Gounder v. Velappa Naicker, (1988)1 L.W. 18, that the court has no powers to dispense with the security. The Division Bench of this Court in Ramaswamy Gounder v. Ramaswamy Gounder, (1995)2 M.L.J. 413 . following the said judgment reported in (1988)1 L. W. 18, has held as follows: “the proviso only provides that the court may, after notice to the applicant seeking to set aside the sale, call upon him before admitting the application either to furnish security to the satisfaction of the court for an amount equal to that mentioned in the sale warrant or to that realised by the sale whichever is less or to deposit such amount in court. This proviso only enables the court at the initial stage after hearing the applicant to find out whether there is a prima facie case for setting aside the sale or noted if that be so, whether in the facts and circumstances, there is a case for directing any security. The proviso does not lay down that in every case, it is incumbent upon the court to insist upon furnishing of security to the satisfaction of the court or depositing of the amount as stated therein, nor does it make it as a condition precedent for filing an application for setting aide the sale, that security should be furnished. The proviso contains a very salutary rule. It is intended to prevent frivolour applications to delay the execution.” 4. In view of the judgment of the Division Bench, the reasoning of the trial court cannot be sustained. 5. As submitted by the learned counsel appearing for the petitioner while rejecting the application to dispense with the production of the security, the lower court could have issued notice or afforded him an opportunity to furnish security or to make a deposit. In view of the abovesaid proviso, giving such a notice to the concerned person before a direction to furnish security or make a deposit is given is a mandatory requirement. While considering the scope of the said proviso, the Division Bench of Andhra Pradesh High Court in T. Venkata v. T.Ramachandra, A.I.R. 1972 A.P. 223: (1972)2An.W.R. 221, following the Full Bench Judgment of this Court reported in Ramanjaneyulu v. Ramayya, (1970)2 M.L.J. 972: A.I.R. 1941 Mad. While considering the scope of the said proviso, the Division Bench of Andhra Pradesh High Court in T. Venkata v. T.Ramachandra, A.I.R. 1972 A.P. 223: (1972)2An.W.R. 221, following the Full Bench Judgment of this Court reported in Ramanjaneyulu v. Ramayya, (1970)2 M.L.J. 972: A.I.R. 1941 Mad. 28, has held as follows: “But now the Andhra Pradesh and Madias amendment places the position beyond any doubt whatever. In specific terms, it provides that the court may call upon the applicant to furnish security on make a deposit” after giving notice to the applicant“. Thus giving notice to the applicant has been made compulsory before a direction to furnish security or make a deposit is given. Moreover such notice is also essential in the interest of justice. For instance, if it is a mortgage decree and the property has already been attached, then the affected party may point out these circumstances to the court and satisfy it that no security or deposit is necessary.” 6. Admittedly, in this case, such an opportunity was not given to the petitioner. Though the lower court is correct in rejecting the petition seeking to dispense with the furnishing of security, it should have issued a notice to furnish the security after disposal of the said application. Hence, C.R.P.No.2016 of 1990 and C.M.A.No.583 of 1992 are dismissed and C.R.P.No.3064 of 1990 is allowed and the order passed by the trial court is set aside and E.P.No.39 of 1986 is directed to be restored to its file and disposed of an merits after giving an opportunity to the petitioner to furnish security. The court below is directed to dispose of the execution petition within two months from the date of this order.