1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4634 of 2008 Prabnhavati C. Dhakpade & ors. .. Petitioners versus Sarubai C. Dhakpade .. Respondent ... Mr.S.D. Thokade for the petitioners. CORAM : A.M.KHANWILKAR, J DATED : 24th July 2008 P.C.: 1. In my opinion, the conclusion reached by the court below that request for stay of subsequently filed suit by the opposite party is unquestionable. In fact, in the subsequent suit, the opposite party has asked for relief of declaration that the will on the basis of which the first proceedings have been instituted by the petitioner is fraudulent and not binding on him. In fact, the cause made out in the suit will have to be tried in the first instance and if the opposite party succeeds in establishing that 2 position, the relief claimed in the first suit filed at the instance of the petitioner will have to be turned down. In such a case, the provisions of section 10 of the Code of Civil Procedure cannot be pressed into service. Realising this position, counsel for the petitioner submits that in that case the court below be ordered to proceed with the trial of both the suits together. However, that was not the purport of application filed u/s.10 of the Code of Civil Procedure. The petitioner will be free to take recourse to such remedy as may be permissible in law to ask for that relief which will be considered on its own merits. 2. Writ Petition is disposed of in the above terms. (A.M.KHANWILKAR, J)