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iswari Prasad Munuri Vs. Shib Narayan Banerjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberS.A. No. 75 of 1973
Judge
Reported inAIR1984Cal213
ActsProvincial Insolvency Act, 1920 - Sections 11 and 35; ;Evidence Act, 1872 - Section 115
Appellantiswari Prasad Munuri
RespondentShib Narayan Banerjee
Respondent AdvocateSubrata Roy, Adv.
DispositionAppeal dismissed
Excerpt:
- .....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......
Judgment:

Jyotirmoyee Nag, J.

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.

4. His main contention is that the learned Judge erred in holding that, under Section 35 such an objection could not be entertained regarding tie territorial jurisdiction of the Court and in support of his contention, he has cited several cases.

5. The first case cited by him is reported in (1907) 5 Cal LJ 611. The learned Advocate relied upon the finding made therein that an objection that the Court has no jurisdiction to adjudicate upon a matter, raises a question of jurisdiction and as such, it may be allowed to be taken for the first time in appeal, although it was not suggested at earlier stage of the proceedings. This decision was given in as early as 1907. Then the present Civil Procedure Code was not in force. Provisions of the present Civil Procedure Code even before the, amendment in 1972 can be found in Sections 21 and 21 (a) by the latest amendment. No objection as to the place of suing shall be allowed by any Appellate or Revisional Court, unless such objection was taken in the Court of the first instance at the earliest possible opportunity and in all cases where issues axe settled at or before such settlement and unless there has been a consequent failure of justice. Section 21(a) bars a suit to set aside a decree on objection as to place of suing.

6. The next case cited is reported in AIR 1924 PC 95. This case also will not apply in view of Section 21 of the Civil Procedure Code. This is a decision of 1923. The relevant passage is at page 101 which is quoted below :--

'An objection to jurisdiction, however late in the day, may be raised, must be entertained, if it be that on the facts admitted or proved it is manifest that there is a defect of jurisdiction'.

This related, not to the place of suing, but to the subject matter of the suit. But in the present case, the objection taken is in respect of the place of suing. So, this decision also does not help the appellant.

7. The next decision is reported in AIR 1925 PC 155. It has been held therein that the parties cannot by acquiescence or consent confer upon a Court jurisdiction which it has not got. This principle is not challenged. But has no application to the present case.

8. The other decision is reported in (1923) 27 Cal WN 542 : (AIR 1923 Cal 619). This is a Division Bench decision and the principle laid down is that a Court which has no jurisdiction over a property is not competent to bring it to sale and the effect of such a sale is a nullity and it is an elementary principle of law that, if a Court has no jurisdiction over the subject matter of the suit its judgments and orders are mere nullities and may not only be set aside at any time by the Court in which they are rendered, but may be declared void by every Court in which they are present. These principles apply not only to original Courts but also to Courts of Appeal. Jurisdiction cannot be conferred upon a Court by consent and any waiver on their part cannot make up for the lack or defect of jurisdiction. This principle is elementary and relates to the subject matter of the suit. But will not apply like the other cases cited above to the facts of the present case.

9. AIR 1935 Cal 391 has been cited by the learned Advocate for the appellant to substantiate his contention that when the judgment-debtor has been adjudicated an insolvent, he has no locus standi to apply under Section 28(2) to have the sale declared void. It has been held therein that when the property of the insolvent has vested in the Receiver appointed by the Insolvency Court, the Receiver completely represents the insolvent under law in respect of his properties and the insolvent has no locus standi to maintain an application under Section 28 (2) to have a sale of his properties in execution of decree avoided. But, that is not so in the present case. The insolvent is not opposing the decree, but in fact, he is supporting the decree. So, this objection also is not tenable.

10. On behalf of the respondent Mr. Subrata Roy, learned Advocate, has also drawn my attention to the fact that, although the appellant made his appearance in the case on 11-9-1970 by filing a Vakalatnama and prayed for time for putting in objection which was allowed but on the day the case was dismissed for default on 6-8-1971. The present appellant was present before the learned Subordinate Judge, yet he did not press his point regarding the question of jurisdiction of that Court. Thereby, it may be presumed that, he had waived his right to object to the same. Again, it will appear that the creditor, Iswari Prosad Muhuri, appellant, after the case was dismissed for non-prosecution made an application on 4-12-1971 on behalf of Smt. Promila Sundari Devi, his mother for inclusion of her, name in the list of Schedule of Creditors. True it is that Promila Sundari Devi is a separate entity, but his conduct speaks volumes against him. After all these, to raise an objection under Section 35 of the Provincial Insolvency Act for the annulment of adjudication order dated 3-12-1971 which was disallowed by the learned Additional District Judge and rightly too this appeal must fail on this ground also. The plea of res judicata is taken by the learned Advocate for the respondent that this point regarding jurisdiction of the Court cannot be raised in view of Explanation IV of Section 11 of the Code of Civil Procedure. I need not decide this point in view of the observations made above.

11. The appeal is accordingly dismissed with costs.


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