1. This is a defendants revi­sion petition against an order of the learned Senior Subordinate Judge, Hamirpur, refusing to stay a suit under S. 10, Code of Civil Procedure.

2. An application under S. 10 of the Code of Civil Procedure was made by the defendants in the suit alleging that the matter in issue in the suit was also directly and substantially in issue in a previously instituted suit and therefore the subsequent suit should be stayed. The learned Senior Subordinate Judge by the order dated February 5, 1976, rejected the application on the ground that inasmuch as the previously instituted suit had been disposed of by the trial Court it could not be described as a pend­ing suit and the mere circumstance that a Letters Patent appeal had arisen out of that suit and was pending was of no significance. The present revision petition is directed against that order.

3. It is difficult to accept the view taken by the learned Senior Subordinate Judge. In S. P. A. Annamalay Chetty v. B. A. Thornhill, AIR 1931 PC 263 the Privy Council laid down that "where an appeal lies the finality of the decree, on such appeal being taken, is qualified by the appeal and the decree is not final in