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Civil Revision Petition No. 313 of 1953 decided on 4th July, 1955 for revision -against the order and decree dated 22nd October, 1953 of the Senior Sub-Judge whereby the appeal of the petitioner and respondents Nos. 5 to 10 against the judgment and decree of Sub-Judge, Bannu, dated 24th August, 1953.

S. 2-Mortgage entered into before 1st January, 1920 redeemed in 1923 and a fresh mortgage effected including the same land along with some additional land the same day-Act does not apply to new mortgage.

The previous mortgage which had been effected long before 1920 was redeemed on 14th February, 1923 and the same day a new mortgage was effected on the same land along with another piece of land.

Held, that the previous mortgage came; to an end and a fresh mortgage was created on 14th February, 1923. As such the Act was inapplicable to the mortgage in dispute and when the Collector declared the mortgage extinguished, he acted without jurisdiction.

S. 11-Collector extinguishing mortgage not covered by Act-Collector acts without jurisdiction-Civil Court's jurisdiction not barred.

Section 11 cannot be interpreted to mean that a Civil Court is debarred from entertaining a suit even in a case where the Collector has acted without jurisdiction. When a certain authority acts without jurisdiction in a manner which amounts to a fraud on the Statute the Civil Courts are not only competent to step in but are duty bound to do so with a view to preventing abuse of law.

Ghulam Jan petitioner in person.

Malik Abdul Latif, for Respondents Nos. 1--4 and 11.

-This revision petition raises a question of vital importance which is not covered by any published authority. In view of the important law point involved in the case the petition was referred to a Bench of this Court.

The facts of the case are very brief and simple. Pre decessor-in-interest of the petitioner had held the suit land belonging to the predecessor-in-interest of Abdul Ali and others, respondents Nos. 1-4, on mortgage since very long, prior to 1st January, 1920. The land was redeemed on 14th February, 1923 on the strength of mutation No. 1257. The same day by another mutation, No. 1258, this land along with another one was again mortgaged to the predecessor-in- interest of the petitioner for a larger sum. Since then the predecessor-in-interest of the petitioner and now he himself and his brothers and sisters are in possession of the suit land as mortgagees.

On a petition presented by respondents Nos. 1-4 under the North-West Frontier Province Restitution of Mortgaged Lands Act, 1950 (Act XXXII of 1950) the Collector purporting to act under section 7 of the Act declared the mortgage extinguished without payment of mortgage money on the 20th January, 1953 and also directed the mortgagors to be put in possession of the suit land as against the mort gagees. The petitioner with other mortgagees filed a suit in the Court of Sub-Judge, Bannu praying for a declaration to the effect that the N.-W. F. P. Restitution of Mortgaged Lands Act, 1950 did not apply to the dispute and that the order of the Collector was invalid and ultra vices. The Sub -Judge dismissed the suit on issue No. 1, namely whether Civil Court was debarred from trying the suit" holding that Civil Court had no jurisdiction to interfere in such a case under section 11 of the Act. The case went upon appeal to the Court of Senior Sub-Judge, Bannu. He also dismissed the appeal on the same ground. The petitioner has now presented to this Court a revision petition wherein the correctness of the concurrent findings of the lower Courts has been challenged.

Section 2 of the Act lays down that " Notwithstanding anything contained in any contract or decree or order of any Court or any enactment for the time being in force, this Act shall apply to all subsisting mortgages of land, which were effected prior to 1st January, 1920". The emphasis is on mortgages of land which were effected prior to the 1st January, 1920". It is, therefore, quite clear that the Act does not apply to mortgages effected after 1st January, 1920. It is common ground between the parties, and has been frankly conceded by the learned counsel for the respon dents, that the previous mortgage of the suit land came to an end and a fresh mortgage was created on 14th February, 1923. As such it is quite obvious that the Act is inapplicable to the mortgage in dispute and when the Collector declared the mortgage extinguished; he acted without jurisdiction.

No doubt section 11 of the Act provides that "no Civil Court shall have jurisdiction to entertain any claim to enforce any right under a mortgage declared extinguished under this Actor to question the validity of any proceedings under this Act" but by no stretch of imagination or language the section can be interpreted to mean that a Civil Court is debarred from entertaining such a suit even in a case where the Collector has acted without jurisdiction. It is a well established principle of law that when a certain authority acts without jurisdiction in a manner which amounts to a fraud on the Statute, the Civil Courts are not only competent to step in but acre also duty bound to do so with a view to preventing abuse of law. It is regrettable that the lower Courts took a very superficial view of section 11 of the Act and did not apply full mind to the legal implication of the case.

To sum up the mortgage in question was effected in 1923. The Act applied to mortgages effected prior to 1st January, 1920. It, therefore, follows that the Collector had absolutely no jurisdiction to take cognizance of the petition and to declare the mortgage extinguished without payment of m6r tgage money. This being so a Civil Court is quite competent to entertain a suit whereby the validity of the order of the Collector is questioned.

In accepting the revision petition for the reasons dis cussed above we set aside the findings of the lower Courts on issue No. 1, hold that Civil Court is not debarred from trying the suit and remand the case under section.151 of the Civil P. C. to the trial Court for decision on, the remaining issues.' In view of the peculiar circumstances of the case the parties are left to bear their own costs.

A. H. Petition accepted.

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