For a certificate under Section 205 of the Government of India Act, 1935, the substantial question of law must have been raised and decided before the High Court for consideration.

Patanjali Sastri, J.

1. The second appeal out of which this petition arises was dismissed on the 16th July, 1942. Leave to appeal under the Letters Patent was also refused. The petitioner who was the appellant now applies under Section 205 of the Government of India Act, 1935, for a certificate that the case involves a substantial question of law as to the interpretation of that Act.

2. The question sought to be raised before the Federal Court is whether the Madras Agriculturists Relief Act is, in so far as it purports to affect debts due under Negotiable Instruments, ultra vires, the Provincial Legislature. This question arose for consideration in another case and was answered in the negative by a Full Bench of this Court (see Nagaratnam v. Seshayya (1939) 1 M.L.J. 272 : I.L.R. (1939) Mad. 151. In view of that decision both the Courts below in the present case overruled the petitioners contention that the promissory note on which he brought the suit was not affected by the Act. No such question, however, was raised before me at the hearing of the second appeal and no reference was therefore made to it in the judgment. The petitioner contends that, notwithstanding his failure to raise that point at the hearing of the second appeal, it is open to this Court now to certify that the case involves that question, which no doubt is a substantial question of law relating to the interpretation of the Government of India Act, 1935.

3. It seems to me that the contention cannot be accepted. The last clause of sub-section 1 of Section 205, viz.:

And it shall be the duty of every High Court in British India to consider in every case whether or not any such question is involved and of its own motion to give or to withhold a certificate accordingly

would seem to presuppose that the question was raised before the High Court, as otherwise it is difficult to see how it would be possible for that Court of its own motion 1.0 give or withhold a certificate such as is referred to in the section. This view receives further support from the terms of sub-section 2 which, as pointed out by their Lordships of the Privy Council in The Punjab Co-operative Bank, Ltd. v. Commissioner of Income Tax, Lahore I.L.R. (1940) Lah. 685 allows an appeal to the Federal Court on " defined grounds " where a certificate under Sub-section (1) is given. One of such grounds which is material here is that a question of the kind specified in the section has been " wrongly decided," which, I take it, means wrongly decided by the Court from whose judgment, decree or final order the appeal is sought to be preferred. It would no doubt have been an unwarrantable trespass upon the time of the Court to reargue before me the point which, so far as this Court is concerned, has been concluded by the Full Bench decision already referred to. But the point could and should, if a further appeal was contemplated, have been mentioned as being still a live issue between the parties though, of course, it would have been decided in accordance with the pronouncement of the Full Bench. This indeed was done in several cases where a certificate under Section 205 has been granted in regard to this very point. The question not having been raised and decided in the proceedings in this Court, no certificate under Section 205 can, in my opinion, be granted.

4. The petition is dismissed with costs.