MEHROTRA, C. J.: This appeal is by the State of Assam, the principal defendant in the suit before the Court below. The plain­tiff-respondent Biraj Mohan Sarkar brought a suit for a declaration of his title to the elephant mentioned in the schedule of the plaint by right of purchase from one Abdur Rahman Laskar. The plaintiff's case is that in the year 1947 he commenced timber extraction work at Harangajow under permit system and is still carrying on the extraction work in that area. The defendant No. 4, who was the owner of the disputed elephant, settled with the plaintiff in the month of April 1955 for giving the elephant on hire at Rs. 20/- per working day from the month of December 1955. The plaintiff gave an advance of Rs. 600/- to him. The elephant was taken to Harangajow for the extraction work. When the elephant was in posses­sion of the plaintiff, the defendant No. 4 in. the month of March 1956 expressed his desire to sell his elephant to the plaintiff. On the 23rd March 1956 for a Sum of Rs. 6,000/- the elephant was sold at Silchar to the plain­tiff and thus the plaintiff became the owner of the elephant. In view of certain demands against the pro-forma respondent, the vendor of the elephant, due to the fishery dues, a recovery certificate was issued in favour of the State. When the elephant was engaged in the-extraction work at Harangajow it was attached on. the 28th December 1956 by the, order of the pro form defendant No. a, that is the Sub-divisional Officer, Haflong, North Cacnar Hills. It is this order of attachment which has been challenged by means of the present suit for a declaration of the plaintiff's title to the elephant. (2) It is not disputed that the elephant is at Haflong and was attached by the order of the Sub divisional Officer, Haflong, which is not within the jurisdiction of the court below. A number of points were taken in defence. The contention was that the Silchar Court had no juris­diction to try the suit. It was further urged before the-court below that there was no transfer; the purchase was benami and thus Abdur Rahman Laskar still continued to be the owner of the elephant. The trial Court repelled all the objections of the defendants and decreed the suit. The contention was that the Silchar Court had no juris­diction to try the suit. It was further urged before the-court below that there was no transfer; the purchase was benami and thus Abdur Rahman Laskar still continued to be the owner of the elephant. The trial Court repelled all the objections of the defendants and decreed the suit. As against that decree the present appeal has been filed. (3) Mr. Pathak, the Senior Government Advocate, has raised a number of points. His first contention is that the Silchar Court had no jurisdiction to try the suit. Secondly, it is contended that the suit .is barred by Sec. 42 of the Specific Relief Act and thirdly it is urged that the pur­chase by the present plaintiff was a benami transaction and was not intended to be given effect to. Lastly, it is contended that the suit was undervalued. (4) With regard to the first contention, reliance is placed on s. 16 of the Code of Civil Procedure. .Sec­tion 16 lays down as follows: "16. Subject to the pecuniary or other limitations prescribed by any law, -suits- (a) ** ** ** ** ** ** ** ** (f) for the recovery of moveable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate: His contention is that as the property, which is sought to be recovered End was under attachment, was within the jurisdiction of Haflong Court, the Silchar Court had no jurisdiction to entertain the suit in view of S. 16 of the Code of Civil Procedure. The trial court has repelled this contention on the ground that though the property was actually attached by the order of the Hafiong Court, in effect it. was an off-shoot of an earlier Bakijai case which was started in the year 3051-52 in the Silchar Court wherein the Deputy Commissioner of Cachar passed an order on 22-12-56 for necessary steps by Suh divisional Officer, Haflong. Mr. Singh, who appears for the respondent, has contended that in fact the attachment was under the orders of the Deputy Commissioner of Cachar and not under the orders of the Sub divisional Officer of Haflong. On the 22nd October 1050, the Deputy Commissioner of Cachar passed the following order: "Seen petition by A. Jabbar that A. Rahman has two elephants. Singh, who appears for the respondent, has contended that in fact the attachment was under the orders of the Deputy Commissioner of Cachar and not under the orders of the Sub divisional Officer of Haflong. On the 22nd October 1050, the Deputy Commissioner of Cachar passed the following order: "Seen petition by A. Jabbar that A. Rahman has two elephants. Stay the sale case at the present stage. Issue fresh D. W. through proper channel against A. Rahman for seizure of the elephants and giving these in zimma. The petitioner to identify the elephants. Fix 22nd December 1956 for report." It appears that the order of the Deputy Commissioner was that the distress warrant should be issued by 1ha proper authority. A certificate under the Revenue Recovery Act, 1890 was issued by the Deputy Commissioner, Cachar, to the Deputy Com­missioner of the United Mikir and North Cachar Hills on the 24tti November 1956. It was in pur­suance of this certificate of the recovery issued by th3 Deputy Commissioner, Cachar on 24-11-56 that the Nazir attached the elephant on the 29th December 1956. Thus, the attachment order was passed in pursuance of the Bakijai proceedings which were started in the Haflong Court under the certificate of recovery sent by the Deputy Commissioner, Cachar, to the Deputy Commissioner of the United Mikir and North Cachar Hills. It cannot be said that because the earlier steps were taken for the attach­ment of the elephant of Abdur Rahman Laskar by the Deputy Commissioner of Cachar, the present attachment was under the orders of the Deputy Commissioner of Cachar. The trial .court is not right, in our opinion, in holding that the Bakijai proceedings started before the Haflong Court were off-shoot of the earlier Bakijai clings. Undoubtedly when the amount could not be realised by the proceedings started before the Silchar Court, steps had been taken to realise the amount ' of the dues by necessary certificate of recovery issued by the Deputy Commissioner, O.'ehar. But, it cannot be said that the order of attachment was passed by the Deputy Commissioner of Cachar. Section 16 of the Code of Civil Proce­dure, which we have already referred to above, gives juris­diction to the court to entertain the suit for the recovery of the property which is under attachment where the pro­perty his situate. But, it cannot be said that the order of attachment was passed by the Deputy Commissioner of Cachar. Section 16 of the Code of Civil Proce­dure, which we have already referred to above, gives juris­diction to the court to entertain the suit for the recovery of the property which is under attachment where the pro­perty his situate. In the present case, in any view of the matter, the elephant was tinder attachment by the; orders of the Haflong Court under whose possession the elephant is and thus S. 16 (f) of the Code of Civil Proce­dure is attracted to this case, and there is no substance in the reasoning of the court below that the Bakijai proceedings started before the Haflong are only off-shoot of the earlier Bakijai proceedings. (5) The next contention of Mr. Singh is that S. 16 (f) is attracted only to a case where the suit is brought for the recovery of the property and not for a declaration. Section 16 (f) really applies to a case' for the recovery of moveable property under distraint or attachment. If the principle is accepted that the property under attachment is in possession of the Court and no suit for recovery of the property will lie, then the provisions of S. 16 (f) be­come redundant and there will be no case; where S. 15 (f) will be attracted because in all cases of attachment the claimant of the property will only have to bring a suit for declaration and not for recovery of the property. This is not the intention of S. 16 of the Code of Civil Procedure, From a perusal of the plaint and from the entire facts in the case, it will have to W seen whether in substance the suit is for the recovery of the property or not and not from only the express word? of the relief claimed in the plaint. The property is claimed by the plaintiff under the sale. His case is that the property is not liable to attachment in execution of a decree against his vendor and thus in effect the suit is for the recovery of the property after the declaration of his title to him and it is the substance of the plaint which has got to be looked into and not the language of the relief. It should also toe pointed out that in case it is held that the suit is not for recovery of the property and the property is in the possession of a third party, in that event, the suit will fall under S. 42 of the Specific Relief Act and thus, in our opinion, there in no substance in the conten­tion of Mr. Singh that section 10 of the Code of Civil Procedure is not attracted as there is no specific relief for the recovery of the property. (6) His next argument is that even if Section 16 of the -Code of Civil Procedure applies to the present case and the Cachar Court had no jurisdiction to try the suit, the decree of the court below is protected under Section 21 of the Code of Civil Procedure. Section 21 of the Code provides that no objection as to the place of suing shall be allowed by any appellate or revisions! 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. So far as the first condition of Section is concerned, it is fulfilled in the present case inasmuch as the objection to the jurisdiction was taken at the earlier stage in the suit itself. Mr. Singh contends that even though the objection was taken at the earlier instance unless it is shown that there has bean a consequent failure of justice, the opposite party cannot be allowed to take up this position be­fore this Court. He contends that there is" no averment in the Written statement or in the grounds of appeal or on the facts on record to show that any prejudice has been caused to the appellant. In fact, the 'appellant had all opportunity to meet the plaintiff's claim and he has led evidence in support of the contention and thus no prejudice has been caused to the appellant. The question raised by Mr. Pathak is that S. 21 is not attracted to the present case. His contention mainly is that S. 21 applies to the cases where the objection relates to the place of suing and net to the objection which goes to the very root of the jurisdiction of the Court. The question raised by Mr. Pathak is that S. 21 is not attracted to the present case. His contention mainly is that S. 21 applies to the cases where the objection relates to the place of suing and net to the objection which goes to the very root of the jurisdiction of the Court. -His contention is that the suit was not maintain­able before the Cachar Court. The suit lay .in the Haflong Court which is not created under the Code of Civil Procedure but the rules for administration of justice in the Mikir Hills apply to that area and thus the Courts which have got right to determine the claim of the present plaintiff were not created under the Civil Procedure Code and in respect of a suit which would 'lie in tie Haflong Court, the Cachar Court has no jurisdiction at all, it is not really a technical objection regarding the place of suing but it goes to the very root of the jurisdiction of the Cachar Court. He has relied upon the case of Setrucharlu Ramabhadra Raju v. Maharaja of Jeypore, AIR 1019 P. C. 150. There the suit was entertained in respect of a part of the property which was situated in the scheduled districts outside the territorial jurisdiction of the Court which entertained the suit and the trial court had taken the view that the decree was protected under S. 21 of the Code of Civil Procedure. This contention was repelled by their Lordships of the Privy Council and the decree of the court below was modified. The following observation may be usefully quoted: "The learned Judges of the Court of Appeal thought that the matter was met by S. 21 of the Code, which pro­vides that no objection as to the place of suing shall be allowed by any Appellate Court unless the objection was taken in- the Court of First Instance, which in this case had admittedly not been done. Their Lordships cannot agree with this view. This is not an objection as to the place of suing; it is an objection going to the nullity of the order on the ground of want of jurisdiction. The order for sale as made under Section.? Their Lordships cannot agree with this view. This is not an objection as to the place of suing; it is an objection going to the nullity of the order on the ground of want of jurisdiction. The order for sale as made under Section.? of the Code of Civil Procedure which the Code itself says are not to apply to the scheduled district." With these observations the decree of the court below was modified. In our opinion, the principle enunciated in this case applies with full force to the facts of the present case. (7) Mr. Singh has referred to the) case of Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 . He has drawn our attention to the following passage at page 342. "With reference to objections relating to terri­torial jurisdiction, S. 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or re visional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in. S. 1.1 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Ss. 21 and 99, C. P. C. and S. 11 of the Suits Valu­ation Act is the same namely, that when a case had been tried1 by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, un­less there has been a prejudice on the merits. The con­tention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under S. 11 of the Suits Valuation Act." The Question raised there was about the applicability of S. 11 of the Suits Valuation- Act. Undoubtedly the ob­servations go to show that the principle underlying 3. 21 of the Code of Civil Procedure has been embodied with regard to the pecuniary jurisdiction in S. 11 of the Suits Valuation Act. It is pointed out 'in this very case that it will depend on the nature of the objection raised on each case. Undoubtedly the ob­servations go to show that the principle underlying 3. 21 of the Code of Civil Procedure has been embodied with regard to the pecuniary jurisdiction in S. 11 of the Suits Valuation Act. It is pointed out 'in this very case that it will depend on the nature of the objection raised on each case. If the objection is only of a technical nature, undoubtedly it will not render the decree of the court below a nullity. But, if the objection goes to the very root of the jurisdiction of the court, the decree of the court below will be a nullity and S. 21 will not be attracted to such a case at all. Each case will thus have to be exa­mined on the nature of the objection take in by the party. The observations in this case that the objection to the jurisdiction both territorial and pecuniary are of technical nature, does not apply to all objections relating to juris­diction but it applies to the objections -of the technical nature. Mr. Pathak has argued that S. 21 of the Coda of Civil Procedure is attracted only to a case where the: courts are within the jurisdiction of' one District Judge and not where the courts are under two separate District Judges. We do not think that for the purposes of this case it is necessary for us to deal with this argument. It is only to be pointed out that the court below had no jurisdiction under S. 16 of the Code of Civil Procedure to entertain the present suit and as the objection relates to the very root of the jurisdiction of the court inasmuch as the Haflong Court is not governed by the Civil Proce­dure Code at all and there are different sets of Courts in those areas which dispose of the matters, it cannot be said that the objection raised by the appellant is only of a technical nature and S. 21 of the Code of ^Civil Procedure protects the decree. (8) In view of our decision on this point, it is not necessary to go into the other question on the merits raised by the appellant. (9) In the result, therefore, we allow this appeal, set aside the order of the court below and dismiss the suit for want of jurisdiction by the Cachar Court. Parties will bear their own costs throughout. (9) In the result, therefore, we allow this appeal, set aside the order of the court below and dismiss the suit for want of jurisdiction by the Cachar Court. Parties will bear their own costs throughout. Appeal allowed.