( 1 ) THIS is a review application filed by the appellants, (defendants in the Suit No. 1590/88) for review of our order dated 17th August,1995 passed in FAO (OS) 167/95. The said FAO was filed by the appellant against the order passed by the learned Single Judge in IA No. 3671/95 in S. No. 1590/88. We confirmed the order of the learned Single Judge refusing the request of the appellant for a declaration that the evidence recorded by the local commissioner was not sustainable and tenable in law. The learned Single Judge held that the appellant could not take such an objection to the evidence recorded by the Local Commissioner as per the consent order of the Court dated 8th July,1992, particularly after the whole evidence was recorded without any objection and the appellant led the evidence before the Commissioner.

( 2 ) WHEN the FAO was argued before us, the learned counsel for the appellant placed reliance on the Division Bench judgment in Sh. Deepak Kapur vs. Ashok K. Ghose and Ors. (1994) (30) DRJ 489 (DB ). In that judgment, a Division Bench of this Court had held that the new rule made under Chapter X-A of the Delhi High Court (Original Side) Rules, permitting appointment of Local Commissioner at the discretion of the Court notwithstanding Order 26, Civil Procedure Code had a very restricted scope and that Local Commissioner could be appointed only in exceptional cases notwithstanding the existence of the non-obstante clause in the new Rule. The Division Bench also held that the Court could not delegate its judicial power to the Commissioner to overrule questions/answers. (In fact, in the present case, no such power was delegated to the Local Commissioner ). Basing on this judgment, counsel for appellant contended before us in the FAO that the evidence recorded by the Local Commissioner appointed under the new rule was to be treated as invalid, inasmuch as consent for appointment of the Local Commissioner under the new Rule, could not confer any jurisdiction to record evidence. If Order 26 did not apply, the appointment of Local Commissioner could not be sustained under the new Rule. That was the argument in the FAO.

( 3 ) WE pointed out in our judgment in the FAO that the judgment of the Division Bench in Deepak Kapoor s case did not hold the field because its efficacy as a precedent was lost in view of the fact that in an Special Leave Petition against the said judgment, the Supreme Court had expressely left the legal question open. We then went into the scope of the new Rule again and held that it was not to be treated as an exception to Order 26, Civil Procedure Code but had a wider area of operation, in view of the non- obstante clause, that it was intended to be used for appointment of Local Commissioners for recording evidence in old cases. We however cautioned that questions of admissibility have to be dealt with by the Court as provided in Order 26 Rule 16a. We dismissed the FAO.

( 4 ) BUT now, it is contended beore us again that by not referring the matter to a Fuli Bench, we had violated all principles of judicial discipline and we should therefore set aside the judgment and refer the matter to a Full Bench. We pointed out to counsel that the judgment of the Division Bench of this Court in Deepak Kapur`s case ceased to be a binding judgment because the legal issue as to the effect of the new Rule was left open by the Supreme Court on appeal vide order of the Supreme Court dated 24th October,1994 passed in Special Leave Petition (Civil) 17238 and 17239 (against judgment in RA 15/94 in FAO (OS) 64/94 and RA 14/94 in FAO 63/94 ). We had extracted the order of the Supreme Court in Special Leave Petition in our judgment in the FAO. The clear words of the Supreme Court are: @subpara = "the question of law raised by the petitioner in the Special Leave Petition is left open. "

( 5 ) THIS aspect was already REFERRED TO to in an order in the FAO. We were of the view that once the question decided by the D