Report No. 45
7. History of the provision relating to "substantial question of law."-
It may be noted that this condition (about the existence of a "substantial question of law") did not occur before 1874. When provisions regulating appeals to the Privy Council were consolidated in the Privy Council Appeals Act,1 this condition appeared in section 5, which enacted that:2
"Where the decree appealed from affirms the decision of the Court immediately below the Court passing such decree, the appeal must involve some substantial question of law."
The Code of Civil Procedure of 1877 contained the corresponding provision3 in exactly similar terms. The validity of this provision was attacked before the Calcutta High Court, on the ground that it was ultra vires of the power of the Indian Legislature, as amounting to a curtailment of the jurisdiction given to the High Court by the Letters Patent; but the contention was rejected.4
Section 596 of the Code of Civil Procedure, 1882, merely reproduced the original provision. In the Code of 1908, the words 'or final order' were added after the words 'the decree', but in other respects there was no change of substance.
1. Privy Council Appeals Act (6 of 1874), section 5.
2. This has been noticed in ILR 39 Mad 843 (845, 849).
3. Section 596, Code of Civil Procedure, 1877 (10 of 1877).
4. Feda Hossein and Co. (in re:), 1873 ILR 1 Cal 431 (448) (Markby, J.).