The main legal point established in the judgment is the determination of court fee payable on the applications and the grounds for setting aside the award.

1. This is an appeal by the State and two of its officers who were counter-petitioners Nos.1 to 3 in the lower court in proceedings under the Arbitration Act, 1940. Certain disputes between the respondent herein, a contractor, and the 2nd appellant the Superintending Engineer. Irrigation Central Circle, Trichur in respect of the construction of a sea wall were referred to the decision of one Seshadrinatha Iyer, a Superintending Engineer in Kerala State, Public Works Department, as arbitrator. He made and signed an award on 31-12-1970, and gave notice of the same in writing to the parties to the arbitration agreement the same day. Ext. Al is the notice received by the respondent, the contractor. Under the award the respondent is entitled to get Rs. 91,962/- from the appellants. A period of three months was fixed for the award to come into effect. The respondent requested the arbitrator to cause the award to be filed in court and the arbitrator as per Ext. A2 dated 29-10-1971 permitted the respondent to file a copy of the award. He filed the copy of the award in court on 16-11-1971 along with a statement, and attaching Ext. A2 to it. In the statement the respondent stated that the arbitrator bad directed him to file a copy of the award, and that the award was being filed by him on behalf of the arbitrator. The proceedings were registered as O. P. No. 37 of 1971 and the court issued notice of the filing of the award as prescribed in S.14(2) of the Act. The 3rd appellant, Executive Engineer, on 5-1-1972 filed I. A. No. 93 of 1972 supported by an affidavit praying that the award may be set aside. The contractor, (respondent herein) filed a counter-affidavit, and also a

petition, I. A. No. 513 of 1972, praying "to pass a judgment in terms of the award, and a decree to follow the same". The Executive Engineer on 11-2-1972 filed a reply affidavit traversing the averments contained in the counter-affidavit filed by the contractor.

2. The main points raised in the affidavits dated 5-1-1972 and 11-2-1972 sworn to by the Executive Engineer are that O. P. No. 37 of 1971 is barred by limitation, that a court fee of Rs. 250/- is payable on it, that the award has been improperly procured and that the arbitrator has misconducted himself. In his affidavit dated 23-1-1972 the contractor contended that the proceedings are not barred by limitation, that no court fee is payable by him, that the award has been properly passed and that there was no misconduct on the part of the arbitrator. He also raised a contention that court fee is payable on I. A. No 93 of 1972.

3. The lower court overruled the points raised by the appellants and pronounced judgment according to the award which was followed up by the decree under appeal. The lower court also held that court fee was payable on 1. A. No. 93 of 1972. The learned, Government Pleader has raised before us all the contentions that were raised in the lower court.

4. At the outset itself, it has been brought to our notice that the appeal is against the order in O. P. No. 37 of 1971 and is one challenging the decree, not on the ground that it is in excess of or not otherwise in accordance with the award, but on the grounds raised in T. A. No. 93 of 1972. Under S.17 of the Arbitration Act an appeal against the decree is maintainable only on the ground that it is in excess of or not otherwise in accordance with the award. However, it may be noted that the lower court has not passed any separate order on I. A. No. 93 of 1972. The judgment in the case deals with that application as well, and has therefore to be treated as an order refusing to set aside an award which is appealable under S.39(1)(vi) of the Act. The learned Government Pleader is therefore entitled to agitate all the grounds raised by him. We are supported in this view by the decision of this Court in Mathulla Mathulla v. Thomas George (AIR. 1962 Kerala 320).

5. The first question that arises for consideration in this case is as to whethe