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Judgment
This is a petition filed under Article 227 of the Constitution of India against the Order dated 28.09.2020 passed in appeal by the learned District
Judge, Budgam. The appeal filed by the petitioners herein has been dismissed and the Order dated 21.08.2020, passed by the trial court upheld.
From the record, it appears that a civil suit for declaration and injunction was preferred by the petitioners herein, inter alia, in regard to the financial
assets of the deceased Habibullah Ahanger, which were lying in an account maintained in the J&K Bank, at Chadoora.
The dispute is, inter se, between the sons and daughters of the deceased Habibullah Ahanger as also the wife of the deceased who figures as
respondent no. 1 herein.
The case set up is that after the death of the father of the petitioners, the amount ought to go in defined shares according to Muslim Personal Law
and that after the death of father of the petitioners, already an amount of more than Rs. 17.00 lacs has since been withdrawn to the exclusion of
petitioners herein. In that background, it is stated that the trial court, by virtue of order dated 07.02.2021, restrained the Bank, from disbursing any
amount in favour of any party, which order was subsequently modified vide Order dated 21.08.2020, whereby the trial court ordered that out of an
amount of Rs. 38.00 lacs in the Account, the defendant no. 1. i.e., mother of the petitioners would be allowed to operate and withdraw an amount of
Rs. 19.00 lacs and in regard to the rest of the amount of Rs. 19.00 lacs, it was ordered that the amount would not be withdrawn unless a succession
certificate was procured by the parties from the concerned Authority. The defendant no. 1 was also directed to execute an indemnity bond in regard
to the amount permitted to be withdrawn.
The aforesaid impugned order was challenged in appeal under Order 43 of CPC, which was dismissed by the learned District Judge Budgam,
considering the principles laid down in case titled Wander Ltd & Anr. Vs. Antox India P.Ltd MAnu/SC/0595/1990 (Supp) SCC 727.
Counsel for the petitioners have vehemently urged that the orders, permitting the withdrawal of an amount of Rs. 19.00 lacs was perverse in law,
inasmuch as, the respondent no. 1 i.e., mother of the petitioners was not entitled to receive any thing more than 1/8 of the share out of Rs. 38.00 lacs
and rest of the amount had to be divided in terms of provisions of Muslim Personal Law. It is, however, admitted that the said amount of Rs. 19.00
lacs has since been withdrawn from the Account and the rest withheld pursuant to the orders passed by the trial court.
I have gone through the order impugned passed in appeal by the learned District Judge, Budgam, as also the order passed by the trial court. The
trial court, appears to have taken a decision in permitting the withdrawal to the extent of 50% of the amount in the Bank. However, the said
withdrawal of money appears to have been secured by providing for an indemnity bond to be furnished by defendant no. 1.
Considering the limited scope of interference in proceedings under Article 227 of the Constitution of India, the view expressed by the Appellate
Court as also the trial court cannot be said to be perverse as evidence may have to be led ultimately to prove the right and entitlement of the parties to
claim the money which was lying in the Bank. In my view no interference is warranted at this stage.
Be that as it may, no case for interference is made out and accordingly, this petition is disposed of along with connected CM(s).