Stonbose, C J—A preliminary objection is raised here which must, we think, fail. The appeal arises out of proceedings in execution of a decree obtained in the Court of the Additional District Judge, Wardha, upon a mortgage executed by the judgment-debtor in favour of the decree-holder. The mortgage comprised property situate in Wardha in the Central Provinces and also property situate in Yeotmal in Berar. The suit was brought in the Wardha Court and the decree was against both sets of property. It was for foreclosure. After the decree-holder had obtained possession of the Wardha estate the decree was transferred to the Court of the Additional District Judge at Yeotmal for execution in respect of the Yeotmal property. The judgment-debtor thereupon raised an objection and contended that the decree was a nullity in so far as it affected the Berar property because Berar was foreign territory and so no Court in British India had jurisdiction to entertain a suit in respect of property situate there. The objection was allowed by the Yeotmal Court and execution refused, so the decree-holder has appealed here. At the same time, in order to have two strings to his bow, he has also instituted a separate suit in the Yeotmal Court upon his judgment for foreclosure of the Berar property.

2. The learned counsel for the judgment-debtor respondent contends that the decree-holder having done this has either accepted the soundness of the lower Court's finding or has elected to pursue the other remedy; in either case he cannot continue this appeal so long as the separate suit is in being. He must withdraw either the suit or the appeal. We agree that it would be undesirable to have both proceedings going on at the same time as that might lead to conflicting decisions, but we cannot agree that it is either illogical or wrong for the decree-holder to do his utmost to safeguard his own position. If he were to fail here, a separate suit on the British Indian judgment would be the right remedy, but it might well be that by the time the appeal was decided the limitation for that would have gone, consequently the appellant decree-holder was well within his rights in instituting that suit at an early opportunity. Of course that suit ought, as a matter of practical convenience, to be stayed pending the decision of this appeal, and that we gather has been done, but that is no bar to the prosecution of this appeal. The preliminary objection therefore fails.

3. On the merits we do not think that the lower Court is right. We are prepared to agree, in accordance with the Full Bench decision in , Murlidhar v. Gorakhram Sadhuram, 1936 AIR(Nag) 1 that in certain special and exceptional circumstances the executing Court can question the jurisdiction of the Court which passed the decree under execution on the ground that it is a complete nullity; and we are further prepared to accept the decision of another Full Bench of the Judicial Commissioner's Court ( Gangaram Tekchand v. Dharamsi Jetha Co.,1935 AIR(Nag) 250) that in general, (though not in this particular case), Courts in British India lack territorial jurisdiction in respect of property situate in Berar. But beyond that we are not prepared as at present advised to go. With the utmost respect to the learned Judicial Commissioners who decided the earlier Full Bench (the later of the two just cited) we cannot agree that that concludes the matter. In our opinion want of territorial, as opposed to inherent jurisdiction is not a fatal defect to a suit. It is only an irregularity and it is curable. Section 21, Civil P.C., states that :

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 cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.

4. This makes it clear that want of territorial jurisdiction