NATHU KHAN Vs. MOHAMMAD ISMAIL

JUDGEMENT

(1.) This review application which purports to be made under section 114 read with section 151 Civil Procedure Code has really to be treated as one made under Order XLVII rule I Civil Procedure Code. For, section 151 has no application to this case. A review under section 151 is made to avoid the abuse of the process of the court and to correct some palpable error which the court committed by mistake. (Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909),

(2.) The only ground on which the application could be considered under Order XLVII rule 1 Civil Procedure Code is whether the order dated 1st September 1972 which is sought to be reviewed disclosed "error apparent on the face of the record" on 1st September 1972 when it was passed.

(3.) The present petitioners had contended before me in S.A.O. 178 of 1972 (Nathu Khan and others v. Mohd lsmail) that the order of eviction passed by the Controller under section 14 of the Delhi Rent Control Act, 1958 against the legal representatives of a deceased statutory tenant was without jurisdiction and. therefore, the executing court could ignore the same and refuse to execute the said order. This contention was fully argued and replied from the opposite side and after full consideration it was decided in the decision of which a review is sought, namely, Nathu Khan v. Mohd. Ismail, 1973 RCR 53, that though the order of the Controller evicting the legal representatives of the deceased statutory tenant was without jurisdiction, the law to this effect was not so clear as to enable the executing court to refuse to execute the order on the ground that it was without jurisdiction. The petitioners have not tried to secure special leave of the Supreme Court for an appeal against that decision under Article 136 of the Constitution. Subsequently on the 5th of April 1973 a Full Bench of this Court in K. G. Malhotra v. Vijay Kumar (E.S.A. 2 of 1971) held that the eviction of a legal representative of a deceased statutory tenant by the Controller under section 14 of the Delhi Rent Control Act, 1958 would be without jurisdiction and an executing court would be entitled to refuse to execute such an order. The present review application was made mainly on the ground that in the light of the decision of the Full Bench dated 5th April 1973, the decision of the Single Bench dated 1st September 1972 disclosed an error of law apparent on the face of the record and on that account it was liable to be reviewed.