Seshagiri Aiyar, J.
1. It is to be regretted that the respondent is not represented before me, as the matter argued by the Vakil for the petitioner is one of some importance.
2. An application was made to the Subordinate Judge to stay proceedings in his Court as an appeal relating to the same subject-matter between the parties to the suit was pending in the Chief Court of Lower Burma at Rangoon. The Subordinate Judge considered that, as there was no evidence before him that an appeal had been filed before the suit in his Court was instituted, Section 10 of the Civil Procedure Code had no application. I do not think that this view is correct. It was decided in Pichuvayyangar v. Seshayyangar 18 M.k 214 by a Full Bench of this Court that proceedings in appeal are only a continuation of the suit instituted in the first Court. That view was accepted in Kristnama Chariar v. Mangammal 26 M.k 91. Order XLI, Rule 82, of the Code of Civil Procedure leads to the same conclusion: an Appellate Court in hearing the appeal is seized by the suit and has got powers either to confirm, vary or reverse the decree which has been passed; the inference from the language of the rule is that the jurisdiction exercised by the Appellate Court is with reference to the further stage of the suit which was disposed of by the first Court. As undoubtedly the suit in the Myaungmya Court was instituted long before the plaint was filed in the Sivaganga Sub-Court, Section 10 is applicable. I must reverse the order of the Subordinate Judge and direct him to re-take the petition on his file and to dispose of it according to law. Costs will abide the event.