JUDGMENT : A. HARIPRASAD, J. 1. Order passed by the Subordinate Judge, Thrissur on E.A. No. 1439 of 2006, filed under Order XXI Rule 90 of the Code of Civil Procedure, 1908 (“the Code” for short), in E.P. No. 395 of 2002 in O.S. No. 377 of 2001 is challenged in these matters. As common factual and legal questions arise, these matters were heard together. It is only proper to dispose them of by this common judgment. Parties are hereinafter referred to in the rank mentioned in the appeal. In fact, the original petition, filed under Article 227 of the Constitution of India, coming up along with the appeal, is indisputably un-maintainable in law since the impugned order is appealable under Order XLIII Rule 1(j) of the Code. 2. Facts relevant, succinctly put, are as follows: Appellant and his wife had availed a loan on 03.03.1998 from the 1st respondent bank for conducting a textile shop. Although they run the shop till the year 2000, due to stiff competition, they were unable to successfully carry on the business. They had, in the meantime, borrowed huge amounts from other financial institutions and also from individuals for salvaging their business. Unfortunately all the efforts proved to be futile, resulting in closure of the business. Thereafter, the 1st respondent bank filed a suit on 11.04.2001 for recovery of the loan amount, interest and costs. Admittedly the suit was decreed ex-parte on 30.03.2002. It is an admitted fact that the appellant's wife was the principal borrower and he was the guarantor for the loan availed from the 1st respondent bank. Appellant had offered his immovable properties as security to the bank by creating a mortgage. Since the decree was not satisfied by the judgment debtors, the 1st respondent bank filed the aforementioned execution petition and got the properties sold. The predecessor-in-interest of the additional respondents 2 and 3 was the auction purchaser. Subsequent to the auction sale, the appellant preferred the aforementioned execution application to set aside the sale. It is important to note that the auction purchaser was not made a party to this application. The decree holder alone is a respondent in the application. 3. The predecessor-in-interest of the additional respondents 2 and 3 was the auction purchaser. Subsequent to the auction sale, the appellant preferred the aforementioned execution application to set aside the sale. It is important to note that the auction purchaser was not made a party to this application. The decree holder alone is a respondent in the application. 3. Specific allegations made by the appellant in the affidavit in support of the application, filed on 29.07.2006, are that the execution petition was posted for confirmation of sale to 30.07.2006 and that he had approached the Additional Sub Court-I, Thrissur with I.P. No. 2 of 2000 on 24.01.2000 under the provisions of the Insolvency Act, 1955 (in short, “Insolvency Act”) to declare that he had become an insolvent. It is also contended that the 1st respondent bank (decree holder) had been arrayed in the petition as 38th respondent. 1st respondent bank, despite receiving a notice in I.P. No. 2 of 2000, appearing through a lawyer and filing a counter statement, proceeded with the execution petition suppressing the material facts from the executing court. Further contention of the appellant is that he has serious issues to be raised in the application under Order XXI Rule 90 of the Code to set the sale aside. 4. This application was opposed by the 1st respondent bank, contending that it is not maintainable in law. Further, material averments essentially required in an application under Order XXI Rule 90 of the Code have not been made and therefore the application is liable to be dismissed. 1st respondent bank also contended that since it is a secured creditor, the provisions of the Insolvency Act do not bar their claim. With these contentions, the 1st respondent bank sought for dismissal of the application. 5. Heard the learned counsel for the appellant. Learned standing counsel appearing for the 1st respondent bank and learned senior counsel appearing for the additional respondents 2 and 3 are also heard. 6. Predominantly three questions arise in the appeal, viz. I. Whether an application under Order XXI Rule 90 of the Code can be maintained without the auction purchaser in the party array? II. Whether the averments in the application are sufficient to establish material irregularity or fraud in publishing or conducting the sale as provided under Order XXI Rule 90 of the Code? III. I. Whether an application under Order XXI Rule 90 of the Code can be maintained without the auction purchaser in the party array? II. Whether the averments in the application are sufficient to establish material irregularity or fraud in publishing or conducting the sale as provided under Order XXI Rule 90 of the Code? III. Since the 1st respondent bank is a secured creditor within the meaning of Section 2(f) of the Insolvency Act, is there any bar in realising the amounts due to it by dealing with the security by virtue of Section 28(6) of the Insolvency Act? 7. Regarding the first question, I can unhesitatingly hold that the auction purchaser is a necessary party to the proceedings under Order XXI Rule 90 of the Code. The expression “necessary parties to an action” is well-known to law. Necessary parties are parties who ought to have been joined in a legal action and such parties are necessary to the constitution of the suit or proceeding, without whom no decree or order can be passed at all. Undeniably, the rights accrued to an auction purchaser would be adversely affected, if an order is passed by the court setting aside the sale without hearing him. 8. In order to appreciate these contentions, it will be better to reproduce Order XXI Rule 90 of the Code: “Application to set aside sale on ground of irregularity or fraud - (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 rateable 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 a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. (3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. Explanation - The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.” 9. On a plain reading of the provision, it will be clear that 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 rateable distribution of assets or whose interests are affected by the sale, may apply to the court to set aside the same. It is also clear that the grounds available for seeking to set aside a sale are either material irregularity or fraud, in publishing or conducting the same. The provision itself gives out a clear indication that all parties who are interested in setting aside the sale and/or who are affected by doing so should be regarded as necessary parties. Viewing from the angle of natural justice also, it can be seen that the auction purchaser will certainly be prejudicially affected by an order of setting the sale aside, if he is not heard. Therefore, he must be given an opportunity to resist the claim of the applicant, who invokes Order XXI Rule 90 of the Code. If an order is passed behind his back, certainly it will be violative of his natural and legal rights. 10. Besides, Form No. 36 in Appendix E to the Code prescribes the form of notice to show cause why a sale should not be set aside. It clearly says that the person on whom a notice, as stated above, has been served should be given an opportunity to show cause why the application should not be granted. A conjoint reading of this Form with Rule 344 of the Civil Rules of Practice, Kerala would show that the auction purchaser is entitled to get a notice in the application. A conjoint reading of this Form with Rule 344 of the Civil Rules of Practice, Kerala would show that the auction purchaser is entitled to get a notice in the application. Rule 344 of the Civil Rules of Practice says that in the case of any application under Order XXI Rule 90 of the Code to set aside a sale, the applicant shall give the purchaser and the parties to the suit or matter not less than five days notice in writing of the application, setting forth his objection to the sale. 11. For the above reasons, I affirmatively find that the auction purchaser is a necessary party to the proceedings under Order XXI Rule 90 of the Code and without his junction, the application is not maintainable. Since the auction purchaser was not made a party to the proceedings, the present application is liable to be dismissed on that score alone. 12. Second question is, what are the necessary averments required to be made in an application under Order XXI Rule 90 of the Code and what are the matters to be proved for setting aside a sale under the above provision? On a close reading of the statutory provision, it will be clear that the persons who may apply under this Rule are (i) the decree holder, (ii) the purchaser, (iii) any person entitled to share in a rateable distribution of the assets under Section 73 of the Code and (iv) any person whose interests are affected by the sale. It is further clear from the provision that the grounds enumerated for setting aside sale are material irregularity or fraud in publishing or conducting it. The expression should be understood to mean material irregularity in publishing or conducting a sale or fraud practised in publishing or conducting the same. 13. What could be a material irregularity in publishing or conducting a sale is no more res integra. The term “irregularity” means “not being in conformity to some recognized rule.” In the present context, it means not being in conformity to the rules prescribed for regulating execution sales. The distinctions between mere irregularity and material irregularity, though thin, are clearly visible and understandable. The term “irregularity” means “not being in conformity to some recognized rule.” In the present context, it means not being in conformity to the rules prescribed for regulating execution sales. The distinctions between mere irregularity and material irregularity, though thin, are clearly visible and understandable. Judicial pronouncements show that material irregularity referred to in this rule must be one on the part of the court or its officers and it should be shown that there has been a disregard of some positive provisions of law relating to execution. It has been held by long line of decisions that any irregularity or lapse in the preparation and service of sale proclamation is covered by this rule as the provisions in Order XXI Rule 66 of the Code are mandatory. Non-compliance of them will render the sale illegal and liable to be set aside. A fundamental mis-description of property, which has misled the purchaser, will be a ground for setting aside the sale. There are ever so many instances, where an irregularity going to the root of the matter and affecting the rights of parties, which could be regarded as material irregularity. It is also clear from the provisions that the material irregularity should be in relation to publishing or conducting the sale. 14. Any discussion on the subject will be incomplete without referring to the decision of the Supreme Court in M/s. Kayjay Industries (P) Ltd. vs. M/s. Asnew Drums (P) Ltd. and Others, AIR 1974 SC 1331 , wherein V.R. Krishna Iyer, J. speaking for the bench stated: “.........The expressions material irregularity in the conduct of the sale must be benignantly construed to cover the climax act of the Court accepting the highest bid. Indeed, under the Civil Procedure Code, it is the Court which conducts the sale its duty to apply its mind to the material actors bearing its mind to the material factors bearing on the reasonableness of the price offered is part of the process of obtaining a proper price in the course of the sale. Therefore, failure to apply its mind to this aspect of the conduct of the sale may amount to material irregularity. Mere substantial injury without material irregularity is not enough even as material irregularity not linked directly to inadequacy of the price is insufficient. Therefore, failure to apply its mind to this aspect of the conduct of the sale may amount to material irregularity. Mere substantial injury without material irregularity is not enough even as material irregularity not linked directly to inadequacy of the price is insufficient. And where a Court mechanically conducts the sale or routinely signs assent to the sale papers, not bothering to see if the offer is too low and a better price could have been obtained, and in fact the price is substantially inadequate, there is the presence of both the elements of irregularity and injury. But it is not as if the Court should go on adjourning the sale till a good price is got, it being a notorious fact that Court sales and market prices are distant neighbours. Otherwise, decree-holders can never get the property of the debtor sold. Nor is it right to judge the unfairness of the price by hindsight wisdom. May be, subsequent events, not within the ken of the executing Court when holding the sale, may prove that had the sale been adjourned a better price could have been had. What is expected of the Judge is not to be a prophet but a pragmatist and merely to make a realistic appraisal of the factors and, if satisfied that, in the given circumstances, the bid is acceptable, conclude the sale. The Court may consider the fair value of the property, the general economic trends, the large sum required to be produced by the bidder, the formation of a syndicate, the futility of postponements and the possibility of litigation, and several other factors dependent on the facts of each case. Once that is done, the matter ends there. No speaking order is called for and no meticulous post mortem is proper. If the Court has fairly, even if silently, applied its mind to the relevant considerations before it while accepting the final bid, no probe in retrospect is permissible. Otherwise, a new threat to certainty of Court sales will be introduced.” 15. It is pertinent to note in this case, none of the legally acceptable grounds has been urged by the appellant/applicant to show that there was any material irregularity in publishing or conducting the sale. Even though some bland averments are made in the petition, there is no specific averments to find out a material irregularity in publishing or conducting the sale. Even though some bland averments are made in the petition, there is no specific averments to find out a material irregularity in publishing or conducting the sale. Moreover, the appellant failed to enter the box to testify in support of his averments. 16. I must also find that there is no reliable averment or proof to hold that there was any fraud in publishing or conducting the sale. Unchallengeable is the proposition that fraud, if any, must be specifically pleaded and proved. Otherwise the opposite party will be taken by surprise at the trial and will find it difficult to defend. In this case, in the absence of any specific averments and proof of essentially required facts, the court below is justified in finding that the sale cannot be set aside under Order XXI Rule 90 of the Code. 17. Third point is the most contentious one. According to the learned senior counsel, neither filing of I.P. No. 2 of 2000 by the appellant under the Insolvency Act, nor its continuance during the pendency of the suit will affect any right of the 1st respondent bank in any way, so much so, there is no blemish on the title of the auction purchaser. Per contra, learned counsel for the appellant contended that since I.P. No. 2 of 2000 was filed prior to the suit in which the decree was passed and the 1st respondent bank was made a party to the proceedings and also that it entered appearance, it could not have instituted and proceeded with the suit against the appellant and his properties. 18. In order to understand these issues, attention should be bestowed to some provisions of the Insolvency Act. Object of the Insolvency Act is to consolidate and amend the law relating to insolvency. In Thampanoor Ravi vs. Charupara Ravi, AIR 1999 SC 3309 it has been held that the Insolvency Act is a complete Code by itself and determines all questions regarding insolvency, including a question as to whether (i) a person is an insolvent or not, or (ii) an insolvent be discharged or not and subject to what conditions; such questions can be decided by the court constituted under the Act alone. 19. 19. Section 2(f) of the Insolvency Act defines the expression “secured creditor” as follows: “secured creditor” means a person holding a mortgage, charge or lien on the property of the debtor or any part thereof as a security for a debt due to him from the debtor.” 20. Admittedly the property sold in execution of the decree was secured by a mortgage in favour of the 1st respondent bank. It is therefore an undeniable fact that the 1st respondent bank was a secured creditor falling within the definition of the Insolvency Act. 21. Section 6 of the Insolvency Act enumerates the acts of insolvency. It is an unchallenged fact that the appellant himself approached the Additional Sub Court with a petition for declaring him to be an insolvent. He has invoked the jurisdiction of the court under Section 7 of the Insolvency Act, which empowers him, as a debtor, to present a petition for adjudging him an insolvent. Section 25(2) of the Insolvency Act says that in the case of a petition presented by a debtor, the court shall dismiss the petition if it is not satisfied of his right to present the petition. Nobody has any dispute in this case that the insolvency petition filed by the appellant did not culminate in passing an order of adjudication under Section 27 of the Insolvency Act. It was dismissed by the court under Section 25. Had the court not dismissed the petition under Section 25 of the Insolvency Act, it was bound to make an order of adjudication under Section 27 and specify a period, within which the debtor had to apply for his discharge. But, in this case, things did not reach upto that level as the application was dismissed even at a previous stage. It is therefore contended by the learned senior counsel that Section 28 of the Insolvency Act, which speaks about the effect of an order of adjudication, has no application to this case. It is the further submission of the learned senior counsel that even if an order of adjudication had been passed in this case, by virtue of Sub-section (6) to Section 28 of the Insolvency Act, the 1st respondent bank, being a secured creditor, could have realised its dues by dealing with the mortgaged property. It is the further submission of the learned senior counsel that even if an order of adjudication had been passed in this case, by virtue of Sub-section (6) to Section 28 of the Insolvency Act, the 1st respondent bank, being a secured creditor, could have realised its dues by dealing with the mortgaged property. In order to appreciate this contention, I shall extract Section 28 of the Insolvency Act: “Effect of an order of adjudication - (1) On the making of an order of adjudication, the insolvent shall aid to the utmost of his power in the realisation of his property and the distribution of the proceeds among his creditors. (2) On the making of an order of adjudication, the whole of the property of the insolvent shall vest in the Court or in a receiver as hereinafter provided, and shall become divisible among the creditors, and thereafter, except as provided by this Act, no creditor to whom the insolvent is indebted in respect of any debt provable under this Act shall during the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt, or commence any suit or other legal proceeding, except with the leave of the court and on such terms as the Court may impose. (3) For the purpose of sub-section (2), all goods being at the date of the presentation of the petition on which the order is made, in the possession, order or disposition of the insolvent in his trade or business, by the consent and permission of the true owner, under such circumstances that he is the reputed owner thereof, shall be deemed to be the property of the insolvent. (4) All property which is acquired by or devolves on the insolvent after the date of an order of adjudication and before his discharge shall forthwith vest in the Court or receiver and the provisions of sub-section (2) shall apply in respect thereof. (5) The property of the insolvent for the purposes of this section shall not include any property (not being books of account) which is exempted by the Code of Civil Procedure, 1908, or by any other enactment for the time being in force from liability to attachment and sale in execution of a decree. (5) The property of the insolvent for the purposes of this section shall not include any property (not being books of account) which is exempted by the Code of Civil Procedure, 1908, or by any other enactment for the time being in force from liability to attachment and sale in execution of a decree. (6) Nothing in this section shall affect the power of any secured creditor to realise or otherwise deal with his security, in the same manner as he would have been entitled to realise or deal with it if this section had not been passed. (7) An order of adjudication shall relate back to, and take effect from, the date of the presentation of the petition on which it is made.” 22. On making an order of adjudication, it becomes the responsibility of the insolvent to aid to the utmost of his power to realise the property and distribute the proceeds among his creditors. Sub-section (2) of the provision says that on making of an order of adjudication, whole of the property of the insolvent shall vest in the court or in a receiver, as provided under the Insolvency Act. The property shall become divisible among the creditors. The provision clearly says that no creditor to whom the insolvent is indebted in respect of any debt provable under the Insolvency Act, shall, during the pendency of the insolvency proceedings, have any remedy against the property of the insolvent in respect of the debt. He shall not commence any suit or other legal proceedings, except with the leave of the court and on such terms the court may impose. 23. Learned counsel for the appellant contended that in violation of this provision, the 1st respondent bank had instituted the suit and obtained a decree, thereafter his property was sold. Bone of contention is regarding right of the bank as a secured creditor to institute and proceed with the suit, despite the restriction in Section 28(2) of the Insolvency Act. 24. Sub-section (6) of Section 28 of the Insolvency Act exempt the secured creditors from the effect of the Section itself. It allows the secured creditors to realise out of or deal with the security. In fact, Section 28(6) creates a legal fiction that the restrictions in Sub-sections (2) and (7) will not apply in respect of a secured creditor. 24. Sub-section (6) of Section 28 of the Insolvency Act exempt the secured creditors from the effect of the Section itself. It allows the secured creditors to realise out of or deal with the security. In fact, Section 28(6) creates a legal fiction that the restrictions in Sub-sections (2) and (7) will not apply in respect of a secured creditor. Neither the provisions relating to vesting of property in the court or receiver, nor the theory that an adjudication order shall relate back and take effect from the date of presentation of the petition will apply in the case of a secured creditor. 25. In this particular case, these aspects are only of an academic interest since the insolvency petition did not culminate in an order of adjudication as it was dismissed at an early stage, viz. under Section 25 of the Insolvency Act. It is therefore clear that the 1st respondent bank, being a secured creditor, is no way affected by the filing or pendency of the insolvency proceedings at the time of institution of the suit. I have no hesitation to hold that the appellant cannot be heard to say the 1st respondent was not entitled to file a suit and to obtain a decree. This point also goes against the appellant. 26. As the appellant omitted to implead the auction purchaser as a party to the proceedings under Order XXI Rule 90 of the Code and he failed to plead and prove that there was any material irregularity or fraud in publishing and conducting the sale, challenge against the order passed by the execution court falls to the ground. That apart, the provisions under the Insolvency Act did not debar the 1st respondent bank from getting a decree in the suit, although it was filed subsequent to filing of the insolvency petition. Therefore, I find no merit in the appeal. 27. As mentioned above, the original petition filed under Article 227 of the Constitution is not maintainable in law since the order impugned is amenable for challenge under Order XLIII Rule 1(j) of the Code. Hence the original petition too is liable to be dismissed. 28. In the result, both the appeal and original petition are dismissed. All pending interlocutory applications will stand closed.