IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 MFA.No.(Insolvency)180 of 2007 -------------------------------------------------- IP.10/2005 of ADDL.SUB COURT,KOLLAM .................... APPELLANT(S): PETITIONER: -------------------------------------------- SIVADASAN, AGED 55 YEARS, S/O.KOCHUKUNJU, PAMPALI PARAYARAM, KATTOOR VEEDU, PERINADU P.O. PERINADU VILLAGE, KOLLAM TALUK. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENT(S): RESPONDENT: ---------------------------------------------------- THE BRANCH MANAGER, INDIAN BANK, KERALAPURAM BRANCH. ADV. SRI.S.EASWARAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.2239/2007 IN M.F.A.NO.180/2007 DISMISSED 30/10/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss M.N.KRISHNAN, J ===================== MFA(Insolvency) No.180 OF 2007 ===================== Dated this the 30th day of October 2008 JUDGMENT This appeal is preferred against the order of the Addl.Sub Court, Kollam in I.P.No.10 of 2005. It was an application filed under Section 10 of the Insolvency Act( Act 11 of 1956). Or, in other words, it was a debtor's petition to adjudicate him as an insolvent. The court below dismissed that application and it is against that decision the miscellaneous first appeal is filed. 2. The question that arises for determination is whether an appeal is maintainable before this Court. Insolvency Act is a self contained Act. Under Section 79 of the Insolvency Act, an appeal has to be preferred to the District Court. Section 79 reads as follows: “The debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction by a Court subordinate to a District Court may appeal to the District Court and the order of the District Court upon such appeal shall be final”. So the appropriate forum to file an appeal is the District Court. A confusion may arise if one goes through MFA 180/2007 -:2:- Section 3 of the Act. Section 3 starts stating that the District Courts shall be the Courts having jurisdiction under this Act. But there is a proviso attached to Section 3 wherein the Government may, by Notification in the Gazette, invest any Court subordinate to a District Court with jurisdiction in any class of cases, and any Court so invested shall within the local limits of its jurisdiction have concurrent jurisdiction with the District Court under this Act. A perusal of the Notification dated 19.12.1957 would indicate that all courts of Subordinate Judges in cases where the debts exceeds Rs.3,000/- shall have the jurisdiction to try an insolvency petition. When it is so, the Subordinate Judge's Court is a court of subordinate jurisdiction to the District Court and therefore by virtue of Section 79 of the Act, the appeal has to be preferred only in the District Court. Therefore when an appeal is filed the District Court, Kollam is directed to entertain the appeal and if any delay is caused in filing the appeal that may also be condoned sympathetically for the reason that I am informed that that court did not entertain the appeal. Since there has been some confusion regarding the forum of appeal, I direct the bank not to proceed with the personal MFA 180/2007 -:3:- execution of the judgment debtor for a period of 3 weeks. MFA is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-