1980 PLP 2177 (CLC)

any Revenue Court or Exe cutive Officer other than the High Court or Chief Con

11. Memorandum trolling Revenue or Executive of appeal when Authority. the appeal is (aa) to the Central Board of Twenty-five rupees. not from a Revenue under section 188 decree or an of the Sea Customs Act, order having 1878 or section 35 of the the force of a Central Excises and Salt decree, and is Act, 1944. presented. (b) to a High Court or Chief Two rupees. Commissioner, or other Chief Controlling Executive or Revenue Authority. The tare perusal of the provisions of this Article shows that an appeal from an order not having the force of a decree is chargeable with fixed Court-fees prescribed therein, whereas appeals from decrees are governed by Article 1 of Schedule 1 of the Court Fees Act which provides for the payment of ad valorem Court fees on the subject matter in dispute. Learned counsel has referred me to Ram Aurar v. Ram Samujh (A I R 1932 Oudh 282) which was a case decided before the coming into force of the Arbitration Act, 1940, However, it seems to me that the provisions of Schedule 11, paras. 20 and 21 of the Code of Civil Procedure, 1908 which were considered in that case are in pari materia with the relevant provisions of the Arbitra tion Act, 1940. The facts in the reported case were that the plaintiff bad made an application under rule 20, Schedule 11, C. P. C. to have the award filed in Court. The Court after necessary enquiry ordered the award to be filed and pronounced judgment according to the award. The judgment was followed by a decree prepared in due course. The defendant filed an appeal against the order and paid fixed court-fee. Upon a question being raised whether art valorem court-fee on the value of the appeal was chargeable, it was held that an order filing or refusing to file an award can neither be regarded as a decree nor as an order having the force of a decree. Consequently, it was ruled that such appeal falls within the purview of Article 11 Schedule II of the Court Fees Act. On parity of reasoning, an order setting aside or refusing to set aside an award under section 30, Arbitration Act by its own force does not have the effect of decree, notwithstanding the fact that a decree may be subsequently prepared in terms of the award. The Full Bench of the Dacca High Court in Mrs. Mumtaz Mallik v. Taxing Officer (P L D 1969 Dacca 803) considered the question of court-fees, in somewhat similar way, in an appeal from an award passed under the East Bengal (Emergency) Requisition of Property Act, 1948. They also took the view that the memorandum of appeal from an award under the said enactment was not a decree or an order having the force of a decree. Consequently, it was held that the memo randum of appeal was chargeable with fixed court-fees under Article II Schedule

11. It, therefore, appears to me that the learned Additional District Judge had taken an erroneous view of the law in holding that the appeal was not maintainable as ad valorem court-fee on the amount of the award was not paid. However, this does not conclude the matter.

4. On the merits the sole contention raised by the learned counsel is that adequate opportunity was not provided to the applicant to fully. cross-examine the respondent when his statement was recorded by the 8 Umpire. I have perused the judgments of the Courts below and I find that this question has been thoroughly examined and a concurrent view taken that it was applicant's counsel who had abandoned the cross-examination without waiting for the orders of the Umpire on his request for reservation of further cross-examination. The learned Additional District Judge teas referred to the history of the proceedings on the previous dates of the hearing fixed before the Umpire which clearly reveals anxiety of the Umpire to give more than due opportunity to the applicant for repre sentation of his case before him. The counsel of the applicant was not justified to abandon the proceedings but nonetheless the applicant himself was given opportunity for further cross-examination, but he declined. Be that as it may, this is not a question which can be examined in the revisional jurisdiction.

5. No other point was urged by the learned counsel. In the result, I see no farce in this revision and accordingly dismiss it with no order as to costs. M. Y. M. Revision dismissed.