1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4668 OF 2009 (Bhaiyaji K. Lad vs. Balkrishana Keshaorao Lad) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. FEBRUARY 25, 2010. Heard Shri Kaptan, learned counsel for the petitioner and Shri De, learned counsel for the respondent. The learned counsel for the petitioner contends that the application under Section 10 of Civil Procedure Code has been rejected and Regular Civil Suit No. 2 of 2003 has not been stayed merely because appeal filed against adjudication in Special Civil Suit No. 1 of 1991 has been treated as not continuation of that suit. Reliance is being placed upon the judgment in the case of Mahangu Prasad vs. Prayag, reported at AIR 1975 Gau. 40, to urge that Regular Civil Appeal under Section 96 of C.P.C. is continuation of suit. Shri De, learned counsel, on the other hand, argues that SCS No. 1 of 1991 instituted by present petitioner, which came to be dismissed on 04.03.2009 was for partition and separate possession. RCS No. 2 of 2003 filed by the respondent is for restoration of possession back to him from the petitioner by pointing 2 out that suit lands were allowed to be cultivated by the petitioner as licensee. According to him, therefore, issues involved in both the suits are not identical. After hearing the learned counsel, though I find that the question of identity of issue in both the matters is involved, the trial Court has not considered that aspect while rejecting application at Exh. 43. It has given only one reason and that reason is unsustainable in view of the judgment in the case of Mahangu Prasad vs. Prayag (supra). In view of this, order dated 09.09.2009 passed below Exh. 43 is hereby quashed and set aside. The application at Exh. 43 is restored back to the file of Civil Judge, Senior Division, Gadchiroli, for its fresh consideration in accordance with law. Writ Petition is disposed of. Rule is made absolute accordingly. No order as to costs. JUDGE *GS.