THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.3040 OF 2009 DATED 07.10.2009 BETWEEN: Cherukuri Somayaji Sarma And another … Petitioners AND Burugupalli Subbarao, And Others … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.3040 OF 2009 ORDER: The petitioners are Judgment Debtors in O.S.No.45 of 1991 for recovery of money. The decree was obtained by one Nune Govinda Raju, since no more, is represented by respondents 3 to 4 herein. Be that as it is, the decreeholder took out the execution in E.P.No.18 of 1999 and brought the properties of the Judgment Debtors – five items of immovable property (small portions of house) to sale. First respondent participated in the auction and became highest bidder for an amount of Rs.3,55,000/-. After he deposited the amount, sale certificate is given by the Court of the Principal Senior Civil Judge, Kovvur, on 12.03.2008. He then filed petition in E.A.No.258 of 2008 for delivery of sale schedule property. By impugned order, dated 16.06.2009, the lower Court ordered delivery of properties by 02.07.2009. Aggrieved by the same, present Civil Revision Petition is filed under Section 115 of Code of Civil Procedure, 1908 (CPC, for brevity). Learned counsel for petitioner submits that against the order of the executing Court confirming sale, petitioner has already filed C.M.A.No.161 of 2008 on the file of the Court of the District Judge, West Godavari along with interlocutory application for stay of proceedings, which is pending. He, therefore, submits that if ultimately petitioner succeeds, prejudice would be caused to him if delivery is effected. Per contra, learned counsel for first respondent/auction purchaser submits that even before Civil Revision Petition is filed before this Court, sale schedule property is delivered to auction purchaser and is in possession of the property. He has placed necessary report by the Court Amin and delivery received by auction purchaser. These are placed on record. A perusal of the impugned order would show that when auction purchaser filed petition under Order XXI Rule 95 of CPC, petitioner filed a Memo opposing the petition for delivery contending that the sale is not valid and that they preferred appeal. Mere filing of appeal against confirmation of sale is not operating as a bar under Rule 95 of Order XXI of CPC. Therefore, lower Court was correct in ordering delivery of possession to auction purchaser, which is the ultimate consequence of confirmation of sale. As rightly pointed out by learned counsel for auction purchaser, if ultimately petitioner succeeds in appeal, he can always seek restitution by filing appropriate application under Section 144 of CPC. Needless to observe that when such application for restitution is filed by petitioner, the same has to be considered by appropriate Court in accordance with law. The Civil Revision Petition, with the above observations, is dismissed. No costs. ______________ (V.V.S.RAO,J) 07.10.2009 pln