1. This is an application in revision against an order of the learned Subordinate Judge of Azamgarh dated 19th April 1928, dismissing the defendant-appellant's appeal on the ground that the appeal was incompetent. It appears that there was an arbitration and an application was made by the opposite parties to the Munsif of Azamgarh for the filing of the award. The learned Munsif heard the objections of the persons who have been arrayed as defendants in the case and having come to the conclusion that the award had been lawfully arrived at, made an order in the following terms:
Plaintiff's suit is decreed with costs. The decree is to be prepared according to the award as prayed.
2. It is clear that the order which the learned Munsif ought to have made was one directing the award to be filed. A separate order should have been made saying that a decree should follow in accordance with the award. His order was really a combined order.
3. Section 104, Civil P.C., allows an appeal against an order directing an award to be filed. Such an appeal was filed by the defendant-applicant. In the heading no doubt the applicant said, besides saying that he was appealing against the order, that he was appealing also against the decree, But if he was appealing also against the decree, he ought to have paid the ad valorem court-fee, which he did not. The grounds of appeal indicate that the appeal was made against the order directing the award to be filed. As a matter of fact there can be nothing against the decree if it was going to be in terms of the award. The learned Subordinate Judge, as already stated, was of opinion that the appeal was incompetent. His ground was that no appeal was against the decree. We hold that it was not. We set aside the order of the learned Subordinate Judge and direct him to re-admit the appeal and to proceed to dispose of it according to law. The costs in the Subordinate Judge's Court so far and in this Court will abide the result.