Gopalan Nambiyar, J.
1. On 1-1-1969. judgment was delivered bv one of us in O. P. No. 390 of 1567 allowing the petition and directinc refund to the petitioner of a sum of Rs. 30,500/- collected from him as licence-fee for the years 1952 to 1957 under the Travancore Tobacco Act 1 of 1087 M. E. The lew and Collection of Tobacco tax under the Act had been declared Illegal bv the SUDreme Court in Abdulkhader's case : AIR1962SC922 on the ground that the rules of 1950 and 1951 which authorised the lew and collection and which contained the charging pro-visions, had no independent existence after the implied reneal of the Tobacco Act bv the Central Excises and Salt Act, 1944- Thereupon, the Kerala State Legislature passed the Validation Act 9 of 1964 (called Luxurv Tax Act. for short) validating the lew and collection of the tax. aa a tax on luxuries. The Validation Act was challenped in this Court. It was sustained by a learned Judge, in the first instance. On appeal, a Division Bench bv Judgment in Writ Appeal No. 5070 of 1965 etc. dated 3-10-1966. held that it violated the provisions of Article 301 of the Constitution. On further appeal bv the State to the Supreme Court, the decision of the Division Bench was set aside and the matter was remanded back to this Court for fresh investigation before nronouncin? whether the lew actually offends Article 301 or not. (vide the iudpment of the Sunreme Court dated 30-7-1969 reported in State of Kerala v. A. B. Abdulkhadir 1969 Ker LT 649 = AIR 1970 SC 19121. After remand, a Division Bench of this Court sustained the validity of the Act by judgment rendered on 11-10-1970 reported in Abdulkhadir v. State of Kerala, 1971 Ker LJ 4 = 1971 Tax LR 512.
2- This application for review of iudsment was filed on 18-8-1971. It is ba^e d on the ground that the judement of one of us. D/- 1-1-1969. was on account of the invalidation of Act 9 of 1964 by the Divison Bench ruling? of this Court in Wrt Appeal No. 5070 of 1965 etc. dated 3-10-1966: and as the same had been set aside on appeal bv the Suoreme Court, and the legislation itself had been sustained bv the later Division Bench ruling dated 15-10-1970. the State is entitled to have the iudement reviewed. An appli-cation filed to excuse delav in preferring the petition for review has been allowed. The questions that therefore survive are whether the State is entitled to have the iudement reviewed; and if so. whether there are adeauate grounds to allow the application.
3. The learned Government Pleader placed his case for review both under the provisions of Order 47. Rule 1 of the C. P. C. and under the inherent powers of the Court. The provisions of Order 47. were invoked on the ground that S. A. L. Naravan Row v. Ishwarlal Bhaewandas : 57ITR149(SC) had ruled that proceedings relating to tax under Article 226 are 'civil proceedings', for the purposes of Article 133 of the Constitution, and this would attract Order 47. That the said provision would be attracted was expressly ruled in Chen-channa Naidu v. Praia Seva Transports Ltd. AIR 1953 Mad 39 which was referred to and followed in Dilip Nath Sen v-Certificate Officer : AIR1962Cal346 , and again in Income-tax Officer. Masuli-patnam v. K. Srinivasa Rao : AIR1969AP441 . The Calcutta decision refers to a iudement of Chaela C. J. in S. P Awate v. C. P. Fernandes : AIR1959Bom466 . But the Bombay decision assumed that the Court had power to review its order passed on an application under Article 226, and stated that the same could be only on the ground of an error apparent on the face of the record which means that the error should be so clear and manifest that no court would allow it to remain on the record and not one to be demonstrated bv a process of ratiocination. Our attention was called to the decision of a learned Judge of this Court (Raman Navar J. as he then was) in Pathrose v. Kuttan alias Sankaran Nair. : AIR1969Ker186 . There, the learned Judge held that a subsequent binding authority taking a different view of the law. is a eood ground for review. In the earlier part of the -judgment, the learned Judge appears to rest the conclusion both on the ground that it amounted to the discovery of 'a new and important matter', and. in anv case to, an 'error apparent on the face of the record', within the meaning of Rule 1 of Order 47. C. P. C. In the course of the -judgment the latter of these grounds alone appears to have figured prominently, and ultimately the learned Judge granted the review on that eround. The decision was followed bv Krishna Iver J. in Chandrasekharan Nair v. Puru-shothaman Nair 1969 Ker LT 686). The learned Judge added:
'Where it is a subseauent decision it is the discovery of a new and important matter, and where it is an antecedent decision, it is an error apparent on the face of the record.'
One of us in State of Kerala v. Kesavan Vadhvan Namboodiri 1969 Ker LJ 450 held that a subsequent binding decision was not a eround for review under the inherent powers.
4. Giving the matter our careful attention, we are unable to agree that, assuming Order 47. Rule 1 is applicable to the case, a subsequent bindinp decision-in this case the pronouncement of the Supreme Court pn 30-7-1969. and certainly. of the Division Bench on 15-10-1970 - would constitute either the discovery of 'a new and important matter' or 'an error apparent on the face of the record'. There is the earlv authority of a Division Bench of the Bombay High Court in Waehela Raisaneii Shivsangii v. Shaik Masludin ILR (1889) 13 Bom 330 that a decision of the Privv Council reversing that of the High Court is 'a new and important matter', within the meaning of Sees. 623 and 624 of the Code of 1882. The authority of this decision has been shaken by the pronouncement of the Priw Council in Raiah Kotasiri Venkata Subbamma Rao v- Raiah Vellanki Venkatrama Rao (1900) 27 Ind App 197 = ILR 24 Mad 1. Lord Davey observed:
'Section 623 enables anv of the parties to apply for a review of anv decre' on the discovery of new and important matter and evidence- which was not within his knowledge, or could not be produced bv him at the time the decree was passed, or on account of some mistake or error apparent on the face of the record or for anv other sufficient reason. It is not necessary to decide in this case whether the latter words should be confined to reasons strictly eiusdem generis with those enumerated, as was held in Rov Meghrai v. Beeiov Govind Burral. (1) In the opinion of their Lordships, the ground of amendment must at anv rate be somethinp which existed at the date of the decrep and the section does not authorise the review of a decree which was right when it was made on the eround of the happen-ing of some subseouent event.'
At page 1670 of Mulla's 13th Edition of the C. P. C-, adverting to the Bombay decision. in Waghela Raisangii Shivsansii's case ILR (1889) 13 Bom 330). the learned author comments that the decision stands on the suecial facts of the case. At page 1672. the learned author observes that it is no ground for 'review that the iudsment proceeds on an incorrect exposition of the law. or of a ruling which has subsequently been modified or reversed or that the law has been laid down differently in a later decision. Nor is a subseauent change in the law a ground for review unless it is retrospective in its operation.
5. But it is claimed bv the Government pleader that a subeeauent binding decision proclaims and law as it ever was. and retrospective effect, and that it stands on the same footing as a subsequent legislation with retrospective effect. (This reasoning found favour withBlarpan Navar J. in the decision in Pathrofd fase 1969 KLT 15 = AIR 1969 Ker ^fiA, We are unable to accept the reasonmg as correct. In the case of a legislatiomRassed subsequently. but with retrospective effect from the time when the decision sought to be reviewed was rendered, the position is that if the legislation is proiected back to the date of the delivery of the iudg-ment, there is. an error apparent on the face of the record in the judgment, based on the old or unamended legislation. On this aspect, we find ourselves in agreement with the reasoning of the maioritv in Mohammad Azamat Azim Khan v. Raia Shatranii : AIR1963All541 . We are unable to aeree with the reasoning of Raman Navar J. distinguishing this case, in : AIR1969Ker186 . In M/s A. C. Estates v. M/s. Saraiuddin & Co. : 1SCR235 the Supreme Court approved of the Privv Council ruling in 27 Indian Appeals 197 and stated that for review on the ground of discovery of 'new and important matter', the said matter must exist at the time when the order sought to be reviewed was made. The decision of the Full Bench of the Allahabad High Court in : AIR1963All41 was affirmed bv the Supreme Court in Raia Shatruniit v. Mohammed Azmat Azim Khan : AIR1971SC1474 . After referring to the grounds for review, reference was made to Kotagiri case (1900) 27 Ind App 197) and to the principle stated therein that review of a decree which was right when made, on the ground of some subseauent event was not centum-plated. The Supreme Court observed:
'Counsel for the appellant submitted that when the High Court decided the matter, the High Court applied the law as it stood and a subsequent change of law could not be a ground for review. The appellant's contention is not acceptable in the present case for two principal reasons: first, it is not a subseauent law. It is the law which all along was there from 1952. The deeming nrovision is fullv effective and operative as from 25 May 1953. when the 1952 Act came into force. The result is that the Court is to apply the legal provision as it alwavs stood. It would, therefore, be error on the face of the record- The error would be that the law that was applied was not the law which is applicable. Secondly. Section 4 of the 1952 Act confers oower on the court to apply the _law notwithstanding any provision contained in the Codp of Civil Procedure. Therefore the application though entitled an application for review was not so. The substance and not the form of the application will be decisive.'
In the AIR Commentaries, on the Constitution of India By Chitalev & Rao. Vol. III. (2nd Edn) at pages 229 and 230. the conflict of iudicial opinion on the Question whether a decision in another case whether between the same or different parties, after the date of iudsment sought to be reviewed, would be a sufficient eround for review, is noticed, and the learned authors submit that after the Privv Council decision in the Kotagiri case (1900) 27 Ind Anp 197 the decision in ILR (1889) 13 Bom 330 and the cases following the same, cannot be accepted as laying down the correct law. In the light of these, we are unable to accept the position that the subseauent decision of the Supreme Court rendered on 30-7-1969 or of the Division Bench given on 15-10-1970 constitutes discovery of 'a new and important matter' iustifving review.
6. Nor can we regard these, as amounting to the discovery of a 'mistake' or an 'error apparent on the face of th = record'. While we agree that, the reversal or variance, or the overruling of a iudicial decision bv a subseauent one amounts to discovery of an error or a flaw in the reasoning of the decision reversed, varied or overruled, we are unable to hold that in every such case, there is an 'error apparent on the face of the record'. The exnressions underlined are Quite strong, and have a well understood -judicial connotation. Mere conflict or divergence of opinion cannot amount to an error apparent on the face of the record- This ground of review asain. should therefore fail. H follows that in the lieht of the authorities discussed, we cannot accept the decisions in Pathrose's case : AIR1969Ker186 . and in 1969 KLT 686 as laving down correct law.
7. The onlv other sround for re-view under Order 47. Rule 1 is 'other sufficient cause'. It is well settled that these words should be understood eiusdem generis with the two grounds immediately preceding them. Being so. it is enough for us to state that no other sufficient reason has been disclosed for review. The result is. even if Order 47. Rule 1 of the C- P-C. is applicable to the case. - as to which we need not venture a final opinion -- none of the grounds contemolated bv it are made out.
8. The position is no better if the application is treated as one for review unriPr the inherent rjnwers of the Court-The decision of the Sunrerne Court in Shivdeo Sineh v. State of Punjab AIR 1963 SC 1909 is an authority for the position that an order passed under Article 226 of the Constitution, can be reviewed under the inherent powers of the Court. But even so, no grounds have been made out for invocation of the inherent powers of review. The iudgment soueht to be reviewed, rendered on 1-1-1969. noticed that no counter-affidavit had been filed bv the Government and there was no aP-pearance for the Government at the hearing. Welt Appeal No. 5070 of 1965 and the batch of cases heard along with it. or at least some of them, were then pending in appeal before the Supreme Court. The Supreme Court set aside the Judgment of the Division Bench and remanded the matter back to this Court on 30th Julv 1969. In pursuance of the remand, a Division Bench of this Court sustained the legislation bv its iudgment given on 18-10-1970. No steps were taken for an aP-peal against the judgment dated 1-1-1969. The application for review was filed onlv on 18-8-1971. In the circumstances, we see no around to exercise our inherent power of review. We dismiss this application but in the circumstances without costs.