THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL NO.239 OF 2011 JUDGMENT: This Appeal is preferred against the order, dated 03-02-2011 in E.A.No.732 of 2009 in E.P.No.178 of 2007 in O.S.No.547 of 2006 on the file of the II Additional Senior Civil Judge, Kakinada, whereunder and whereby the application filed under Order XXI Rule 90 and Section 47 CPC to set aside the sale conducted on 05-03-2009 in respect of E.P. Schedule property, was dismissed. 2. The short point that falls for consideration is whether the sale of the property is liable to be set aside on the ground that Order XXI Rule 72 CPC is violated. 3. The factual matrix is not in dispute. The appellant herein is the purchaser of the property from judgment debtor by virtue of sale deed dated 13-04-2007. The property covered by the sale was attached before judgment in the suit on 04-11-2006. Thereafter, the decree was passed on 30-12-2006. In Execution Proceedings, the property was sold in public auction, which was conducted on 05-03-2009. The Decree-holder after obtaining permission from the Court participated in the public auction and became the higher bidder. Thereafter, sale certificate was issued. The appellant herein who is the purchaser of the property under the registered sale deed from the 2nd respondent herein (J.Dr.) filed the application under Order XXI Rule 90 CPC to set aside the sale on the ground of material irregularity. Before an application under this provision could succeed, the applicant must show that the impugned sale was vitiated by material irregularity or fraud in publishing or conducting auction-sale and that he had sustained substantial injury. There is no pleading with regard to this aspect. 4. According to the learned counsel appearing for the appellant, notice to the J.Dr. under Order XXI Rule 72 CPC is mandatory and in the absence of the same, it amounts to material irregularity in conducting the sale and hence, he prays to set aside the same. 5. On the other hand, learned counsel appearing for the 1st respondent (D.Hr.) contended that by not issuing a notice under Order XXI Rule 72 CPC, no substantial injury was caused to the appellant and therefore, it does not amount to material irregularity. 6. Learned counsel for the appellant relied on a decision reported in JASWANTLAL NATVARLAL THAKKAR V SUSHILABEN MANILAL DANGARWAL AND OTHERS [1], wherein it was held thus: “Mr. Dholakia submitted before . us that, in this case, the property had been purchased at the court auction by the decree holders. For effecting this purchase, the decree holders had applied to the court for permission under O. 21, R. 72 of the Code of Civil Procedure. The executing court gave the decree holders permission not only to bid the auction but also to bid at a price equivalent to 80 per cent of the upset price that had been fixed earlier for the auction and this had been done without any notice to the petitioner. Mr. Dholakia contended that this constitutes a material irregularity which vitiated the sale. The High Court took the view that a notice- to the judgment debtor was not mandatory under O. 21, R. 72. Learned counsel, however, invited our attention to the decision of the Madras High Court in G. Subramania Mudaliar v. The Ideal Finance Corporation, Partnership Firm, AIR 1977 Madras 358 and of the Andhra High Court in Puttaparatti Atchamma v. T. Bayanna, AIR 1969 AP 196 and submitted that a notice to the judgment debtor is necessary before permission is granted under O. 21, R. 72 particularly when the upset price is proposed to be reduced. We are inclined to agree with this submission of the learned counsel but this will not solve the problem of the appellant. For, under O. 21, R. 90 it is not sufficient for the appellant to contend that there was an illegality or irregularity in the conduct of the sale; he must also prove by adducing sufficient facts that some substantial injury has been caused to the petitioner as a result of the order under O. 2 1, R.72 having been passed without such notice. We have been taken through the relevant facts in detail by Sri Dholakia but we are unable to find any such overwhelming circumstances as can enable us to hold that this irregularity was such as has caused substantial injury to the appellant within the meaning of the rule in the circumstances' of the case” From the above decision, it is clear that the apex Court by referring two decisions of Madras and Andhra Pradesh High Courts held that notice to the J.Dr. is necessary before permission is granted under Order XXI Rule 72 CPC. 7. On the other hand, learned counsel appearing for the 1st respondent (D.Hr.) relied on a decision reported in SAHEB KHAN V MOHD. YOUSUFFUDDIN AND OTHERS [2], wherein it was held thus: “Therefore before the sale can be set aside merely establishing a material irregularity or fraud will not do. The applicant must go further and establish to the satisfaction of the court that the material irregularity or fraud has resulted in substantial injury to the applicant. Conversely even if the applicant has suffered substantial injury by reason of the sale, this would not be sufficient to set the sale aside unless substantial injury has been occasioned by a material irregularity or fraud in publishing or conducting the sale. (See: Dhirehdra Nath Gorai and Suibal Chandra Shaw and Ors. v. Sudhir Chandra Ghosh and Ors.; Jaswantlal Natvarlal thakkar v. Sushilaben Manilal Dangarwala and Ors.; Kadiyala Rama Rao v. Gutala Kahna Rao (dead) by and Ors.).” The above decision would clearly go to show that for invoking Order XXI Rule 90 CPC, J.Dr. must prove by adducing sufficient evidence that some substantial injury has been caused to him for not issuing notice. From a reading of the above decision, it is clear that when a notice is not issued under Order XXI Rule 72 CPC to the J.Dr., the J.Dr. has to show that for not issuing such a notice, substantial injury has been caused to him. But, such is not the case here. The appellant herein is a third party who purchased the property from the J.Dr. Therefore, notice as required under Jaswantlal’s case (1 supra) can only be available to the J.Dr. but not to the third party. Since an order granting permission to D.Hr to participate in the auction may affect the judgment debtor, it is appropriate to issue such notice to him. Furthermore, Section 64 CPC declares that a private alienation of property after attachment is void as against claim enforceable under the attachment. In other words, the rights of the attaching creditor are protected as against an alienation pending attachment of the property. The trial Court after recording reasons, rightly dismissed the application and absolutely, there are no grounds to interfere with the same. 8. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs. ________________ K.C. BHANU, J DATED: 21-10-2011 Hsd [1] AIR 1991 SC 770 [2] (2006) 4 SCC 476