JUDGMENT

Bennet, J. - This is a reference by the Taxing Officer of the following question to me as Taxing Judge:

Is the court-fee payable on a memorandum of appeal against an award by a Tribunal, constituted under the U.P. Town Improvement Act of 1919, u/s 8, Court-fees Act, on the difference between the amount awarded and the amount claimed by the appellant, or is a fixed court-fee payable?

2. The matter has been fully argued by learned Counsel for the appellant and various rulings have been laid before me. The grounds for the appellant are comprised in an application dated 25th October 1937. The facts of the present case are that there was a decision of the Improvement Trust Tribunal at Cawnpore in regard to compensation to be paid to Debi Chand and Debi Chand has filed this first appeal before the High Court claiming Rs. 1,00,000 more compensation than has been awarded to him. The appellant has paid a court-fee of Rs. 10 only and he claims that this amount is sufficient under the Court-fees Act, Schedule 2, Article 17(iv), as the court-fee on a memorandum of appeal to set aside an award. On the other hand the Taxing Officer and Stamp Reporter consider that the court-fee should be ad valorem u/s 8, Court-fees Act, and that there is a deficiency of Rs. 1415. The contest is which of these two portions of the Court-fees Act should be applied. Taking first Schedule 2, Article 17(iv) this prescribes a fee of Rs. 10 for "plaint or memorandum of appeal in ouch of the following suits :...(iv) to set aside an award."

3. Now the Article in question implies that there should, be a suit and there should be a plaint or memorandum of appeal and the plaint or memorandum of appeal should mils that an award should be set aside. This implies that before the plaint and ward should have been given between the parties. Such an award would arise where the parties without reference to the Court agree that some question as regards their legal rights should be settled by arbitration and an award is given by the arbitrators. One of the parties is then dissatisfied with the award and he files a suit in Court asking for a declaration that the award should be set aside. If the trial Court or the Appellate Court grants such a declaration the result is that there is no award and that the rights between the parties which the award had purported to settle remain undecided. Now the present case is not a proceeding of that nature. The appellant before the High Court does not ask that the award of the tribunal should be set aside and that he should have no other relief. On the contrary what he asks for is that an award should be granted by this Court in appeal giving him an amount of compensation which is Rupees one lakh greater than the compensation awarded by the Court below. He therefore contemplates that as a result of the appeal there will be an award decreed by this Court. Such an appeal cannot be described as an appeal to set aside an award. The remedy of setting aside the decision of the lower Court would only be a part of the remedy asked and there is the further remedy of granting a larger award. The present appeal therefore will not come under Schedule 2, Article 17(iv).

4. It may be noted that the essential distinction between that Article and the present appeal is that the Article deals merely with a declaration whereas the remedy asked by the appellant is the obtaining of a sum of money by a decree. The two matters are essentially different. This distinction has been pointed out by a ruling of a Bench of the Rangoon High Court reported in Special Collector of Rangoon v. Ko Zi na A.I.R (1928) Rang. 197 and the relevant passage is at p. 284. Learned Counsel relies on a decision of a learned single Judge of this Court, King J., which has not been reported and which is dated 28th July 1931 in Secy. of State v. Babu Ramji Das First Appeal No. 348 of 1931. In that case, King, J. did hold that an appeal against an award of a Tribunal under the U.P. Town Impr