' This revision application arises out of the following facts. On 21st July 1964 the respondent filed Suit No, 367/1964 against the applicant or recovery of a sum of Rs, 6,713.70. During the pendency of the suit the subject matter of dispute in the suit was referred to two Arbitrators. However, the two Arbitrators differed in their decision, consequently the matter was referred to the Umpire Mr. Abdul Karim Siddiqui for decision. After hearing the parties the Umpire gave his award on 22nd December, 1967 directing that the applicant pay to the respondent a sum of Rs, 6,692.20 with 6% interest from the date of suit until payment. When the award was filed in the Court the applicant submitted objections and prayed for setting aside of the order. The learned trial Court, however, dismissed the objections filed by the applicant and by order dated 3rd ay, 1968 refused to set aside the award directing that the decree be assed in terms thereof.
2. Aggrieved by the aforesaid order the applicant filed appeal under section 39 of the Arbitration Act before the District Court, Karachi, which was ultimately disposed of by the learned IInd Additional District Judge, Karachi. The learned Judge in the Appellate Court besides repelling the contentions of the applicant on the merits also came to the conclusion that the appeal was not maintainable in so far as ad valorem court-fees were not paid on the memo of appeal. In the view taken by the learned Appellate Court, Article 11 of Schedule 11 of the Court Fees Act was not attracted in the case inasmuch as the order appealed against has the force of a decree and consequently ad valorem Court-fees were payable. In this view of the matter the learned IInd Additional District Judge, Karachi by his impugned judgment dated 29th March 1971 dismissed the appeal as not maintainable. The applicant being aggrieved has come up in revision before this Court.
3. Mr. M. G. Dastgir, learned counsel appearing for the applicant first contended that the learned Appellate Court had misconstrued the law and held the appeal not maintainable on the ground of court-fees. In his submission an appeal under section 39 of the Arbitration Act is directed against an order of the Court refusing to set aside the award and notwithstanding the fact that the order directs the preparation of decree in terms of award, its character is not changed as an order, not having the force of a decree. Article 11 of Schedule 11 of the Court Fees Act, 1870 is in the following terms :- {{TABLE}}
(a) to any Civil Court other Eight annas. Than a High Court, or to any Revenue Court or Executive 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. {{TABLE}} ' The bare 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 Autar v. Ram Samujh (1) 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 II, 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 Arbitration Act, 1940. The facts in the reported case were that the plaintiff had made an application under rule 20, Schedule II, C. P. C. To have the award fled in Court. The Court after necessary enquiry ordered the award to (1) AIR 1932 04clh 282 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 ad 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 o 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
(1) considered the question of court-fees, in somewhat similar way, in an appeal from an A 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 memorandum of appeal was chargeable with fixed court-fees under Article 11 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 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 has 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 representation 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 force in this revision and accordingly dismiss it with no order as to costs.