J.B. Koshy,J.

This appeal has been preferred by the respondent in I.A. No. 351/2000 in Succession O.P. No. 21/2001 on the file of the District Court, Wayanad. The above O.P. was filed for grant of a will. The District Judge allowed the petition granting letters of Administration with copy of the will on condition that he will execute bond in accordance with law. The orders was passed on 7/4/2000. Thereafter, respondent in the appeal filed I.A. No. 351/2000 under Section 263 of the Indian Succession Act, 1925 for revocation of the grant of probate. The petition for revocation of the probate was numbered as I.A. No. 351/2000 and court fee of Rs. 10/-was paid as no other rate of court fee was fixed and court fee for an interim application was paid. The District court allowed the above I.A. revoking the probate granted in O.P. No. 21/2000 on 7-4-2000. The appellant had a case that what was granted is letters of Administration; but, not probate. That is a matter to be decided in the appeal. Now, the question is regarding the court fee payable.

2. When the appeal was filed, the registry raised an objection that court fee is to be paid as per Schedule I Article 4 of the Court Fees Act. Schedule I article 4 of the Court Fees Act. Schedule I Article 4 of the Court Fees Act reads as follows:

Memorandum of appeal : An amount of one-half the scale of fee against order in proceedings prescribed in Article 1 on the amount under the Indian Succession Act, 1925. or value of the subject matter."

It is the contention of the appellant that he has not filed an appeal against granting of probate or Letters of Administration. The respondent has filed only an I.A. to the District Court itself to revoke the grant of probate and it was allowed and in such circumstances court fee payable is not under Article 4 of Schedule I of Court Fees Act ; but court fee is to be paid as provided under sec.52 of the Court Fees Act reads as follows:

"52. Appeals:- The fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal:

Provided that, in levying fee on a memorandum of appeal against a final decree passed by the court of first instance or by the court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree.

Provided further that one third of the fee payable in an appeal shall be paid at the stage of admission of first appeal or second appeal as the case may be and the balance shall be paid within such period, not later than fifteen days from the date of such admission as may be specified by the court, in case the appeal is admitted:

Provided also that the court may, for sufficient reasons to be recorded in writing, extend the period up to thirty days.

Explanation: (1)Whether the appeal is against the refusal of a relief or against the grant of the relief, the fee payable in the appeal shall be the same as the fee that would be payable on the relief in the court of first instance."

(Explanation (2) to (5) are not applicable.)

3. We are of the opinion that court fee payable in an appeal is the same that should be payable in the court of first instance as per Sec. 52. Explanation I makes the position clear.

4. Almost in an identical situation where an appeal was filed against an order in a petition which was filed by paying Rs. 10/- as court fee for setting aside an arbitration award, a Division Bench of this Court held that court fee need not be paid under Article 4 of schedule II in Jaisu Shipping Company (P) Ltd. v. OILCORP Oil Marketing Corporation (2001 (2) KLT 772). In paragraph 6 of the judgment pronounced in the above case by Justice K.S.Radhakrishnan on behalf of the Division Bench it was held as follows:

"6. We are of the view counsel for the appellant is right in his contention since Arbitration and Conciliation Act, 1996 has not been incorporated under Art. 4 of Schedule II of the Court Fees Act which dea