JUDGMENT

Broadway, J. - Two persons Sundar Singh and Agya Singh were carrying on business as contractors in partnership. About 20th May 1925 they decided to end this partnership, and referred the questions arising between them to the arbitration of Sardar Bahadur Singh who had to go into the question of dissolution of the partnership and into the accounts. The arbitrator gave his award on 15th July 1925, subsequent to which Sardar Bahadur Singh filed an application in the Court of the Senior Subordinate Judge, Delhi, for an order that the award should be filed and made a rule of Court. On 30th August 1926, an order was passed directing that the award be filed, and a decree was drawn up in the terms of the said award. Agya Singh then preferred an appeal to this Court attacking the order directing that the award be filed and paid a Court-fee of Rs. 10 on the memorandum of appeal. At the hearing of this case a preliminary objection was taken by Mr. Man Singh on behalf of the respondent Sundar Singh to the effect that the appeal was insufficiently stamped inasmuch as Article 1, Schedule 1, Court-fees Act, was applicable. Under that article the Court-fee prescribed is an ad valorem one. Mr. Man Singh in support of his contention referred to Gauri Shankar v. Anant Ram A.I.R. 1926 Lah. 403. That was a decision of my own sitting alone. A reference to my judgment in that case shows that the point now before the Court was not decided by me. The proceedings in that case were under para. 16(1), Schedule 2, Civil P.C., and I held there that the appeal did not fall within the purview of Section 104(f), Civil P.C. Reference had been made in the course of the arguments in that case to Dharam Das v. Ajudhia Parshad [1881] 70 P.R. 1881 and Hari Mohan Singh v. Kali Prasad Ghalina [1906] 33 Cal. 11, and Mr. Man Singh referred to these two authorities. Now both these cases dealt with the old Code. In Dharam Das v. Ajudhia Parshad [1881] 70 P.R. 1881, it was held that inasmuch as Article 18, Schedule 2, Court-fees Act did not apply, the only article applicable was Article 1, Schedule 1, Court-fees Act, fixing an ad valorem fee in the case. The question was not discussed at any length by the Judges deciding the case and Hari Mohan v. Kali Prasad [1906] 33 Cal. 11, is really more in point. There it was held by a Division Bench of the Calcutta High Conrt following Ghulam Khan v. Muhammad Hassan [1902] 29 Cal. 167, that an order having the force of a decree is in fact a decree, and it was, therefore, held that the fee payable was an ad valorem one. Ghulam Khan v. Muhammad Hassan [1902] 29 Cal. 167 is a case decided ultimately by their Lordships of the Judicial Committee who state at p. 182 as follows:

The decisions of the Indian Courts on those provisions are so conflicting that it may be useful to state generally the conclusion at which their Lordships have arrived on some of the disputed points brought to their attention in the course of the argument.

2. They then proceeded to lay down certain definite conclusions and the third one is as follows:

Where the agreement of reference is made and the arbitration itself takes place without, the intervention of the Court and the assistance of the Court is only sought in order to give effect to the award. * * * Proceedings described as a suit and registered as such must be taken in order to bring the matter, the agreement to refer or the award as the case may be under the cognizance of the Court. That is or may be a litigious proceedings--cause may be shown against the application, and it would seem that the order made thereon is a decree within the meaning of that expression as defined in the Civil Procedure Code.

3. Now, it seems to me that their Lordships held that an order directing the filing of an award in circumstances such as exist in the present case fell within the definition of the expression "decree" as defined in the Civil Procedure Code that was then in force. A reference to that definition and in th