Radhakrishnan,J.

This appeal arises one of the order raised in E.A.No.1145 of 1999 in E.P.No. 473 of 1998 in O.S.No.761 of 1996 on the file of the Sub Court, Thrissur.

2. Appellant herein was the petitioner in E.A.No. 1145 of 1999 which was filed under Order XXI Rule 90 of the Code of Civil Procedure. He is the decree holder in E.P.No.179 of 1998 in O.S.No.1892 of 1996 on the file of the Munsiff’s Court, Thirissur. In execution of the decree he filed E.P.No. 179 of 1998 before the Munsiff’s Court. Vadakkancherry. Decree schedule property was scheduled to be auctioned on 10.8.1999. Appellant however noticed that in order to defeat his interest, first respondent, who is the decree holder in O.S.No.761 of 1986 had filed E.P.No. 473 of 1998 bringing the schedule property to auction. Property was solid in auction in that case on 21.6.1999. Sale was got confirmed on 23.2.2000. Appeliant therefore wanted to set aside the sale in E.P.No.473 of 1998 and put the property in auction again so that he would be able to realize the amount. He also raised a contention that the bid amount be deposited and he may be allowed to realize the amount by rateable distribution. The court below found no basis in the petition and dismissed the same. Property was solid in auction for an amount of Rs.1,00,124/- in E.P.No. 473 of 1998 and there is no justifiable reason to set aside the same. Further the court below held that the appellant has not complied with the conditions prescribed in Section 73 of the Code for rateable distribution and dismissed the application. Aggrieved by the same this appeal has been preferred.

3. Counsel appearing for the appellant Sri Dilip J.Akkara contended that the sale was vitiated by fraud and material irregularity and therefore liable to be set aside. Counsel submitted that appellant came to know about the sale of the property only when E.A.No 179 of 1998 was filed by the first respondent in O.S.No. 1892 of 1996. In any view of the matter, sale proceeds are liable to be rateably distributed as required under Section 73 of the Code.

4. Counsel appearing for the respondent, Sri. G.Unnikrishnan, on the other hand contended that sale is not vitiated by fraud or material irregularity. He also pointed out that respondent had filed application under Order XXI Rule 72 seeking permission to bid in auction and it is only after obtaining the permission he bid the property in auction. Counsel also submitted that the appellant has not complied with any of the conditions stipulated in Section 73 of the Code.

5. Contention of the appellant is that the sale conducted is liable to be set aside on the ground of fraud and material irregularity. Burden of proving fraud and material irregularity rests on the applicant. Mere assertion of circumstances is not sufficient to prove fraud. In the absence of any materials, we are inclined to reject the contention that the sale is vitiated by fraud or material irregularity. Facts would indicate that the property sold in auction was attached on 2.11.1996 as per order in I.A.No.5018 of 1996 in O.S.No. 761 of 1996. Appellant filed E.P.No. 179 of 1998 before the Munsiff,s Court, Vadakkancherry on 6.10.1999 after E.P.No. 473 of 1998 was filed by the first respondent herein. Property was then sold in auction on 21.6.1999 and the sale was confirmed on 23.2.2000. Application to set aside the sale under Order XXI Rule 90 was filed on 1.9.1999 though the property was sold on 21.6.1999. Under Article 127 of the Limitation Act, application to set aside sale in execution of a decree has to be filed within sixty days from the date of sale. Sale was conduction on 21.6.1999, evidently the application was filed beyond 60 days and therefore not liable to be entertained. We may also examine as to whether petitioner is entitled to get rateable distribution under Section 73 of the Code. The said provision is extracted below for easy reference.

73. (1) Where assets are held by a Court and more persons than one have,