1. This appeal is directed against an order of adjudicationmade in a proceeding under the Provincial Insolvency Act, 1907. The Respondentis employed as a guard on the Bengal-Nagpur Railway. He resides at Dungagarh inthe Central Provinces and has worked there for over two years. But he runs histrain ordinarily from Dungagarh to Nagpur. He adds that he works also fromDungagarh to Kharagpur, but has no permanent residence at the latter place,where he stops with guard Atkins, his son-in-law. The application forinsolvency was lodged in the Court of the District Judge of Midnapur on the 8thAugust 1911, immediately after the Appellants had obtained a decree against himin the Court of the Munsif at Midnapur. There is no controversy that his debtsexceed Rs. 500. Consequently the only question for consideration is, whetherthe petition has been presented to a Court having jurisdiction under theProvincial Insolvency Act in the local area in which the debtor ordinarilyresides or carries on business or personally works for gain, within the meaningof sub sec. (2) of section 6. The District Judge has held that as a decree formoney has been obtained against him in the Court at Midnapur, the applicationmight be entertained there. This view clearly cannot be supported. It ispossible that a suit for realisation of a debt may be instituted in a placeother than the one where the debtor ordinarily resides or carries on businessor personally works for gain. The question for determination consequently is,where does the debtor in this case ordinarily reside or personally work forgain, because there is no room for suggestion that he carries on businesswithin the meaning of sub sec. (2) of section 6 within the jurisdiction of theCourt of the District Judge of Midnapur. In our opinion, upon the facts stated,it cannot be held that the debtor ordinarily resides at Kharagpur. The term"resides" is not defined in the statute, but its ordinaryinterpretation is explained in the case of Kumud Nath Roy Chowdhury v.Jotindranath Chowdhury 13 C. L. J. 221 (1911). If the Respondent had ordinarilyrun his train from Dungagarh to Kharagpur, it might possibly have beencontended with some show of reason that he resided in both places, it mightalso have been argued that he personally worked for gain at Dungagarh as wellas at Kharagpur. But, as already stated, he runs his train, ordinarily fromDungagarh to Nagpur, and only occasionally from Dungagarh to Kharagpur. Themere fact that when at Kharagpur he stops with his son-in-law does not showthat he resides at Kharagpur, much less can it be said that he ordinarilyresides at Kharagpur. The language used in sub-sec. (2) of section 6 isidentical with that of section 6 of statutes 46 and 47, Victoria, Chap. 52.With reference to the latter statute, it was ruled in the case of In re Erskine10 T. L. R. 32 (1693) that a man who paid several visits to London during aperiod of more than a year, and who, when in London, had his bed-room in alodging house where he slept could not be said to have ordinarily resided inLondon during the required period. That there may be room for difference ofopinion in the application of the law to the facts of a particular case isillustrated by the decision in In re Norris 5 Mor. 111, where it was ruled thata foreigner who had a room at a hotel in London for about eighteen monthsbefore the presentation of petition and paid for the same continuously duringthat period had ordinarily resided in London during the required time. Thetendency of Courts in this country as is illustrated by the decision in In re.Tietkins 1 B. L. R. O. C. 84 (1868) and In re Rampaul Singh 8 C. L. R. 14(1884) has been to construe the expression "ordinarily resides"strictly. [See also In re. Cockburn 2 Ind. Jar. N. S. 326 (1867), In reTarineychurn Guha 11 B. L. R. App. 26 (1873), Subramaniam v. Pichai [1911] 4Bur. L. T. 81]. But whether the expression be strictly or liberally construed,upon the facts of this case, it is impossible for us to hold that theRespondent ordinarily resided at Kharagpur at the time of the presentation ofthe application for insolvency. It must further be remembered, as pointed outin In re Erskine 10 T. L. R. 32 (1893), that the burden is upon the Petitionerto establish that the Court to which he has presented his application hasjurisdiction to entertain it. In the case before us, the Petitioner has failedto discharge that burden. We are not prepared to hold that the Petitionerordinarily resides or personally works for gain at Kharagpur within the meaningof sub-sec. (2) of sec. 6. Consequently, the inference follows that the Courtbelow had no jurisdiction to deal with this matter. We desire to add that wecannot accept as well-founded the argument advanced with considerable ingenuityby the learned Vakil for the Respondent that we should apply to this case theprinciple which underlies sec. 21 of the Civil Procedure Code of 1908, in viewof the provisions of sec. 47, sub-sec. (1), of the Provincial Insolvency Act.Sub sec. (1) of sec. 47 provides that, subject to the provisions of the Act,the Court, in regard to proceedings under the Act, shall have the same powersand shall follow the same procedure as it has and follows in the exercise oforiginal civil jurisdiction. But this section does not, directly or byimplication, render sec. 21 of the Civil Procedure Code of 1908 applicable toproceedings under the Provincial Insolvency Act. Consequently, we cannot applyto these proceedings the doctrine that no objection as to the place of suingshall be allowed by any Appellate Court, unless such objection was taken in theCourt of first instance at the earliest possible opportunity and unless therehas been a consequent failure of justice. The question of jurisdiction is thusopen for examination, and for the reasons assigned, must be decided against theRespondent.

2. The result is that this appeal is allowed and the orderof the Court below discharged. But the Respondent will be at liberty to presenta fresh application under the Provincial Insolvency Act in a Court of competentjurisdiction. Under the circumstances of the case, there will be no order forcosts either here or below.

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Madho Pershand vs.A.L. Walton (10.03.1913 - CALHC)