A.N.Dikshita - (1.) THIS revision is directed against the judgment and order dated 16-3-1989 passed by the XIV Additional District Judge, Moradabad rejecting the application (96-C) which was filed by the applicants for the recall of order dated 15-5-1987.
(2.) HEARD the learned counsel for the applicants Sri R. N. Bhalla. In brief the facts are that the proceeding for grant of probate of the will and codicil dated 20-3-1984 and 2-4-1984 respectively of deceased Ram Keshav Gupta who expired on 4th of May, 1984. By order dated 15-5-1987 the Additional District Judge, Moradabad gave a direction to the Branch Manager. State Bank of India, Branch Chaurasi Ghanta, Moradabad to deposit Rs. 93,172-55 in his court for being utilised towards the court- fee in the event of probate being issued. Such an order was passed on an application of the opp. parties praying for the realisation of the court-fee from the assets of the deceased. The Branch Managers of the Banks were directed to give detail of the assets of the deceased at the disposal of the court for payment of the court-fee payable. Objections were filed on behalf of Syndicate Bank and State Bank of India. The State Bank of India expressed its inability to remit the money for depositing the same in the court in view of an attachment order for Rs. 87, 735-65 from the Assistant Controller of Estate Duty, Lucknow. However, lateron the applicants intimated the court that the Assistant Controller of Estate Duty, Lucknow had withdrawn the attachment of amount deposited in the Bank. On such attachment being withdrawn to the extent of Rs 93, 172-50 which was payable towards the court fee, XIV Additional District Judge, Moradabad passed an order on 15-5-1987. The applicants have filed an application 96-C for the recall of the order This application 96-C was rejected by the court below, thus giving rise to this revision. The learned counsel for the applicants has prayed that in case the amount so deposited, is utilised for purchase of the court-fee, it would create complication in view of the fact that the applicants are disputing the genuineness of the will and codicil. Reliance has been placed in the case of Pappoo v. Karuvilla, 1982 K. L. T. 255. The court below however, placed reliance In the Goods of E. R. Yokchee (Testamentary Case No. 17 of 1954) Division Bench of this Court AIR 1956 Allahababad 152, where it was held that :- "Where the petitioner had no funds of the deceased in his hand but sufficient amount was in deposit in the deceased's current Account in a Branch of State Bank of India, then proper procedure would be to direct the Agent of the Branch to deposit the said sum in the court and a part of it to be utilised towards the payment of the Court-Fee".
(3.) THE court below has exercised its jurisdiction and merely because the applicants are challenging the genuineness of the will, it cannot be said the court below had no jurisdiction to direct the Bank to remit the amount to the court for the utilization of the court fee. THE learned counsel for the applicants then argued that no opportunity was afforded to them. I find no merit in this submission. It is clear from the order that the applicants filed objections and after considering the arguments advanced on their behalf, the Incharge District Judge Moradabad passed an order dated 11-2-1987. THE order dated 15-5-1987 was passed keeping in view the order dated 11-2-1987. It was only a consequential order. Merely a direction to the Bank for the deposit of the amount would not be deemed to be a case decided.;