ISWARI PRASAD MUNURI Vs. SHIB NARAYAN BANERJEE

JUDGEMENT

(1.) This appeal arises from the order passed in appeal by the learned Additional District Judge, 2nd Court, Alipore against order No. 57 dated 15th June, 1972 in Insolvency Case No. 6/72. One Ganesh Gbandra Bhowmick, creditor, filed an Insolvency Case against Sub Narayan Banerjee, the debtor, being Insolvency Case No. 150/70. The present appellant, Iswari Prosad Munuri filed an abjection as creditor for setting aside the order of dismissal dated 6-8-1971 by the learned Subordinate Judge in the said insolvency case. On 3-12-1971 as Shib Narayan Banerjee, the debtor, was absent on the date of hearing, it was taken up for ex parte hearing after examination of one witness and Shib Narayan Banerjee was adjudicated insolvent. Prior to that order, on 11-9-1970, the present appellant, Iswari Prosad Muhuri had appeared by filing a Vakalatnama through a lawyer and prayed for time to put in an objection and he was granted time till 20-11-1970 to file objections. On 20-11-1970 the present appellant filed a written objection and the ground taken in that objection is that Shib Narayan Banerjee could not be adjudicated insolvent, as that Court had no territorial jurisdiction. But, surprisingly enough, on the date when the order was passed ex parte on 3-12-1971, though Iswari Prosad Muhuri was present through his lawyer, his objection regarding the territorial jurisdiction of the Court was not pressed and it would appear that, on 4-12-1971 the appellant appeared on behalf of his mother, Promila Sundari Devi and on 13-11-1971 an order was passed for realisation of Rs. 50/- par month from the pay of the debtor by the learned Subordinate Judge on that application. On 3-1-1972 the opposite party Shib Narayan Banerjee filed an application under Order 9, Rule 13 for setting aside the order dated 3-12-1971 and for restoration of the original case. On 13-3-1972 that Misc. Case was dismissed for non-prosecution without cost. Thereafter, the present appellant filed an objection under Section 35 of the Provincial Insolvency Act for annulment of the adjudication order under Section 35 made on 3-12-1971, on the same ground as taken in the original proceeding, namely, debtor was not residing within the territorial jurisdiction of the learned Subordinate Judge who made the adjudication order.

(2.) This application was opposed by the other creditors. The learned Additional District Judge found that the objection to be mot maintainable on two grounds-- firstly, though he had filed an objection on 17-8-1971 challenging the jurisdiction of the Court, but he did not object to the same when the order was passed ex parte by the learned Subordinate Judge. Secondly, that after the order of adjudication, the appellant had filed an objection on behalf of his mother supported by his affidavit as her agent for an order upon the Receiver to realise a certain sum from the salary of the opposite party and an order was passed in her favour.

(3.) The learned Additional District Judge held that, Section 35 of the said Act was not the appropriate section for taking the ground of territorial jurisdiction of the Court. The proper section was Section 11 of the Act. Furthermore, the learned Judge held that, as the appellant (Creditor) did not press his objection at the time of hearing of the Insolvency Petition by the learned Court, he was precluded from challenging the jurisdiction of the Court at a subsequent stage. The learned Judge also found that the debtor had given his address at 31, Dr. Suresh Shankar Road within the jurisdiction of the District Court of 24-Parganas in the Vakalatnama filed by him in the proceeding and simply because he had another residence at Serampore and the Process Server had been turned away from 31, Dr. Suresh Shankar Road by some other person, which could not be said that the insolvent had no residence at 31, Dr. Suresh Shankar Road. Against this order, the appellant has preferred the present appeal.