Important points:
" 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-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
" 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- 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.

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. 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 par