( 1 ) A short but interesting question arises as to what should be the appropriate court-fees which should be paid by a party not only challenging the decree made in terms of the award under sec. 17 of the Arbitration Act but also challenging the order of the trial Court refusing to set aside the award under sec. 39 of the Arbitration Act. The question arises in the following circumstances:

( 2 ) THE respondent who is the original plaintiff undertook to construct a bangalow on behalf of the petitioner-defendant and an agreement was effected between the parties. The said agreement contained an arbitration clause and the disputes having arisen between the parties were referred to the arbitrator who made an ex parte award. The arbitrator moved the City Civil Court Ahmedabad by his Civil Miscellaneous Application No. 571 of 1972 praying for a decree in terms of the award under sec. 17 of the Arbitration Act. The petitioner-defendant also moved the City Civil Court Ahmedabad by his application being Civil Miscellaneous Application No. 53 of 1973 for setting aside the said award. After hearing the parties the learned City Civil Judge dismissed the application of the petitioner-defendant by his order of September 2 1975 Since he refused the application for setting aside the award and there was no application for remitting the same the learned City Civil Judge passed decree in terms of the said award on the same day that is September 2 1975 The petitioner-defendant being aggrieved by the said orders preferred two appeals before this Court being First Appeals Nos. 1010 of 1975 and 1011 of 1975 from the order refusing to set aside the award and the decree respectively. Both these appeals were summarily rejected by a Division Bench of this Court (Coram: J. M. Sheth and C. V. Rane JJ as they then were) by its order of December 16 1975 It appears that the office of this Court had raised an objection in First Appeal No. 1011 of 1975 which was preferred from the decree in respect of the adequacy of court-fees. The objection of the office is that the appellant of the said appeal who is the petitioner before me should pay ad valorem court-fees since that was an appeal against the decree. The Taxing Officer accepted the objection of the office and ruled that court fees of Rs. 2200. 00 was due and payable by the petitioner-defendant and not Rs. 60. 00 as fixed Court-fees. The petitioner has therefore come in this revision before me against the said order.

( 3 ) THE real question therefore is: what in effect and substance the appeal of the petitioner-defendant was ? It is no doubt true that the petitioner had preferred two appeals before this Court since there were two orders of the City Civil Court one against the order refusing to set aside the award and another against the order directing a decree to be made in terms of the award which was a necessary consequence of the first order. If there had been a composite order refusing to set aside the award and making a decree in terms thereof the appeal against such an order would have paid the fixed court-fees as ruled by this Court in P. DATANI and CO. V. STATE OF GUJARAT (1973) 14 G. L. R. 809 following the earlier decision of the Bombay High Court in TAXING OFFICER V. JAMNADAS DHARAMDAS AND ORS. A. I. R. 1956 BOM. 563. This decision of this Court has been distinguished by the Taxing Officer on the ground that the ratio of that decision would be applicable only if there had been a composite order which is not the case here and since there are two orders one against the order refusing to set aside the award and another against the order making a decree in terms of the awardand consequently two appeals the appellant was justified in paying the fixed court-fees in his appeal against the order refusing to set aside the award but the appellant must pay ad-valorem court-fees in an appeal preferred against the decree.

( 4 ) I am of the opinion that this distinction is not well founded. The