1. Lalas Raghubir Saran and Badri Prasad had instituted a suit in the Court of the Munsif of Sambhal against two minors Hori Lal and Kanahi Lal under the guardianship of one Budh Sen for enforcement of a mortgage dated 28th November 1913. This suit was registered under the number 897 of 1925. No part of the property comprised in the mortgage was situate within the jurisdiction of the Munsif of Sambhal. The defendants did not raise the plea that the suit was instituted in a Court without jurisdiction. The guardian of the minors absented himself on the final date of hearing, and eventually, an ex-parte decree was passed against the minors on 25th February 1926.

2. The property sought to be sold under the decree consisted of certain zamindari shares, a house and a shop. These were situate within the jurisdiction of the Munsif of Chandausi. Upon the application of the decree-holders, the decree was transferred for execution to the Court last mentioned. The minor judgment-debtors contested the application for execution, inter alia, on the ground that the decree passed against them was a nullity inasmuch as the mortgaged property was outside the territorial jurisdiction of the Munsif of Sambhal. The executing Court, by its order dated 5th February 1927, refused to entertain the plea and. directed the minor judgment-debtors to file a regular suit. This led to the institution of the present suit on 25th April 1927.

3. The plaintiffs filed the suit with their mother Mt. Gango as their next friend. They challenged the legality and validity of the decree in Suit No. 897 of 1925, upon the ground that it was passed by a Court without jurisdiction and was void, that it was vitiated by fraud and had been obtained in collusion with Budh Sen, the guardian ad litem, who had moreover acted with gross negligence and had not properly looked after the interest of the minors. The suit was resisted upon a variety of grounds. Fraud and collusion were denied and it was contended that the decree was not void on the ground that no portion of the mortgaged property was located within the jurisdiction of the Munsif of Sambhal and that the suit was barred by Sections 11, 21 and 47, Civil P.C. The trial Court dismissed the suit. It overruled the contention of the defendants that the suit was barred by Sections 11, 21 and 47, Civil P.C., but held that there was nothing on the record to show that any fraud had been practised by the defendants and that the decree was not null and void simply because the mortgaged property was outside the jurisdiction of the Munsif of Sambhal. Dealing with Sections 11, 21 and 47, Civil P.C., the trial Court made the following observation:

The present suit was brought on the basis of fraud and negligence on the part of the guardian ad litem of the plaintiffs 'in the previous suit. Such a question was never decided before and hence I fail to understand how Section 11 can apply to it. Section 21, Civil P.C., lays down that no objection as to the place of suing shall be allowed by any appellate or revisional Court. Since I am neither sitting as a Court of appeal nor as a revisional Court, hence Section 21 has no bearing at all. Section 47 deals with questions relating to execution. The question of the validity of a decree does not relate to the execution, discharge or satisfaction of the decree, and hence it cannot be tried in execution proceedings. Such a question can only be tried in a regular suit brought for a purpose (sic).

4. In dismissing the suit, the trial Court purported to follow a decision of this Court in Re. Beni Prasad v. Lajjaram [1916] 38 All. 452 in which it had been held that a decree obtained against an infant properly made a party and properly represented in the case could not be set aside by means of a separate suit except upon proof of fraud or collusion on the part of the guardian. The lower appellate Court reversed the decision and decreed the suit.

5. The defendants have appealed to this Court.

6. The only two points, which have been argued and which emerge for decision in this appeal are: (1) whether the plaintiffs who had not challenged the jurisdiction of the Munsif of Sambhal in the previous suit can be allowed to do so by means of a separate suit? and (2) whether the claim is barred by Section 11, Expl. 4, Civil P.C.

7. It has not been contested that the Munsif of Sambhal had no jurisdiction to entertain the former suit which related to property wholly beyond his territorial jurisdiction. It is settled law that where a Court has no jurisdiction as to the subject-matter or with reference to the temporary value of the suit, the jurisdiction of the Court cannot be legalized by the consent or by the waiver of the parties. Generally, the same rule is applicable with reference to territorial jurisdiction. But an exception has been grafted upon the general principle by the provision of Section 21, Civil P.C. This section runs thus:

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 first instance at the earliest possible opportunity, and in all case? where issues are settled at or before such settlement and unless there has been a consequent failure of justice.

8. Under this section a party is precluded from raising the question of jurisdiction in appellate and revisional Courts unless the question was raised at the earliest possible opportunity and unless a failure of justice was occasioned thereby.

9. Section 21 is not in 'terms applicable to the case, as it does not provide against the question of jurisdiction being agitated by means of an independent suit.

10. No legal sanction can attach to a decree which rests upon a usurpation of jurisdiction. If a party who had the right and the opportunity of raising the plea of jurisdiction has failed to avail himself of it at the earliest possible opportunity, he is penalized to this extent by an express bar raised by Section 21 that he cannot be permitted to raise that question in a later stage of that suit before the appellate Court or before the Court of revision. There is no provision in the Code of the Civil Procedure which either expressly or by necessary implication deprives the plaintiff of his right of suit. Where a plain tiff is threatened with an encroachment over his property in execution of a decree which has been passed by a Court without jurisdiction, a cause of action undoubtedly accrues to the plaintiff, and it would be a most unfortunate and deplorable circumstance if the threatened wrong were not open to a redress by a properly constituted tribunal. Neither the Code of Civil Procedure nor any other statute which we know of provides against the maintainability of a suit of this description. Section 21 is based upon a principle of expediency and the object clearly is that an inquiry into an extraneous matter should not ordinarily be let in for the first time in appeal or revision where the party aggrieved did not choose to challenge the jurisdiction of the Court at the earliest possible opportunity.

11. The appellant in support of his contention has drawn our attention to Jaya Veera Rama Vencatashwara v. Chidambaram Chetty [1920] 43 Mad 675. This was not a case in which the decree was sought to be avoided by means of an independent suit. The facts were that the preliminary decree in a mortgage suit was passed by a Court of competent jurisdiction, but the final decree was passed by a Court which had no jurisdiction over the suit property. There was therefore no doubt that the latter Court had passed the decree without any jurisdiction. No plea of jurisdiction was raised before it. Later on, when the decree was sought to be executed, one of the defendants judgment-debtors challenged it upon the ground that it had been passed by a Court without jurisdiction and was therefore a nullity. It was held that a party who did not raise an objection to jurisdiction when a preliminary mortgage decree was made absolute was not entitled to plead in execution that the order was passed without jurisdiction. The decision has been founded upon the principle that the Court executing the decree is not competent to go behind the decree and it has been expressly ruled that

"an objection to the jurisdiction is a ground for setting aside a decree and is not one of the questions relating to the execution, discharge or satisfaction of the decree, required by Section 47 to be dealt with in execution."

12. The decisions of the Courts in this country are not, by any means, uniform on the question of the competency of the Court executing the decree to probe into the jurisdiction of the Court which had passed the decree. On one side are the cases like the following: S. Veeraraghava Ayyar v. J. D. Muga Sait [1915] 39 Mad. 24, Hari Govind Kalkundri v. Narsingrao Konherrao Deshpande [1914] 38 Bom. 194 and Kalipada Sarkar v. Hari Mohan Dalai [1917] 44 Cal. 627.

13. On the other side of the line are cases like Gora Chand Haider v. Profulla Kumar Roy A.I.R. 1925 Cal. 907 and Kunjamohan Chakraverty v. Manindra Chandra Roy Chowdhury A.I.R. 1923 Cal. 619.

14. In the case of Sripat Narain Roy v. Tribeni Missir [1918] 40 All. 423 all that was held by this Court was that it was a food answer to an application for execution against the alleged representatives of the judgment-debtors to show that the judgment-debtor was dead at the time when the decree was passed and that by reason of this vital defect the decree was void and incapable of execution. The following fact was emphasized in the judgment:

No question of jurisdiction of the Court to make the decree arises, because no Court can make a decree against a dead man and a decree so made is a, nullity.

14. These cases are no authority for the proposition that it is not open to a plaintiff to challenge by a suit a decree which has been passed by a Court which did not possess the territorial jurisdiction over the subject-matter. The point has not been argued and we express no opinion on the question whether the matter could be raised before the Court executing the decree. The plaintiffs sought to raise it before the executing Court, but upon the objection of the defendants they were referred to a regular suit. It must be borne in mind that the question of jurisdiction has not been sought to be raised in the later stages of the same suit before an appellate or a revisional Court. Section 21, Civil P.C., has therefore no application.

15. But it has been contended that although Section 21 is not applicable in terms, the principle underlying that section is applicable and reliance has been placed upon the following observations in the judgment of Wallis, C. J., in the Madras case already referred to; Jaya Veera Rama Venkatashwara v. Chidambaram Chetty at p. 686:

The effect of the section in my opinion is that objections which the appellate or revisional Court is thereby precluded from allowing, must be considered cured for all purposes unless taken before the passing of the decree in. the original Court.

16. It is respectfully submitted that it is not legitimate to extend the bar of Section 21 beyond the limits expressly provided for by that section. If it was the intention of the legislature to make the bar general "for all purposes" it could and should have said so. It would be unjust to take away from a party his right of suit upon speculative reasoning relating to the principle underlying Section 21, Civil P.C. We are clearly of opinion that there are no such underlying principles which can operate as a bar against the plaintiffs.

17. In Chokkalinga Pillay v. Valayudha Mudaliar A.I.R. 1925 Mad. 117, a suit for sale on a mortgage was properly instituted in the Kumbakonam Sub-Court and a preliminary decree was obtained from that Court. In 1907 the subject-matter of the suit was transferred to the Mayavaram Court. The plaintiff however applied for and obtained a final decree from the Kumbakonam Court. The defendant brought a suit to set aside the final decree on the ground that the Kumbakonam Court, on the date of the passing of the decree, had ceased to possess territorial jurisdiction over the property in dispute. It was held that the suit was not maintainable because, although Section 21 did not apply, it was argued that the principle underlying that section was. of general application and if the objection could not be heard in appeal or revision, it would be consistent that the decree could not be attacked by a collateral proceeding. The learned Judges in arriving at this conclusion adopted the statement of law in Jaya Veera Rama Venkateshwara v. Chidambaram Chetty. For reasons already given we cannot accept this view.

18. We overrule the contention of the appellant and hold that where a decree has been passed by a Court having no territorial jurisdiction over the matter in controversy, the plaintiff is entitled to maintain an independent suit for its avoidance.

19. Both the Courts below have overruled the contention of the appellants that the suit is barred by the rule of res judicata. We have no doubt about the correctness of this view. No judgment can operate as res judicata unless it has been passed by a Court of competent jurisdiction. It follows therefore that where the judgement is issued by a Court without jurisdiction it cannot be conclusive between the parties under Section 11, Civil P.C. Section 11, Expln. 4, Civil P.C., can have no application to such a case. The principle has been discussed by Mukerji, J., in Re. Krishna Kishore Dey v. Amar Nath Kshettry [1920] 47 Cal. 770, at p. 780 and we respectfully adopt the following statement of law:

In this case...the question of jurisdiction is neither raised nor decided; the position might have been different, if the question had been raised and decided, for where a Court judicially considers and adjudicates the question of its jurisdiction and decides that the facts exist which are necessary to give it jurisdiction over the case, the decision is conclusive till it is set aside in an appropriate proceeding. But where there has been no such adjudication, the decree-remains a decree without jurisdiction and cannot operate as res judicata.

20. The result is that we dismiss this appeal with costs, including in this Court fees on the higher scale.