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TMI Blog1916 (9) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court. They were purchased by the present applicant. As the judgment-debtor Dosabhai was unwilling to execute the transfer deed in favour of the applicant, the deed was executed by the Court. In these circumstances the applicant claims that he is entitled as of right to have his name placed on the register. The Directors have refused to register the transfer, and the learned District Judge has decided against the applicant, who consequently brings the present appeal. 2. The learned Advocate General takes a preliminary point that under Section 38 of the Act the appeal is not competent. The objection is put in two ways. First, it is said that the proviso, which occurs at the end of the section, must be confined to the third clause of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sets out the nature of the question before him, and that it is possible to regard that question as a question of law. It is clear that in every application made to the Court there must be some question or other for the Court's decision, and I cannot concede that when that question is capable of being regarded as a question of law, nothing more is needed for the admissibility of an appeal. On the contrary, I think that if an appeal is to be admitted, there must be a specific issue of law directed by the Court to be raised, and directed with some advertence to the terms of this proviso. That has not been done in this case, and if the matter rested there, I should be inclined to say that the appeal did not lie. But it has been conceded bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this argument, we must, of course, assume that the Directors would be within their powers in refusing to register the present appellant, if he were a private purchaser, and not a Court-purchaser. Upon that assumption, I can see no reason why the Directors' powers should be curtailed merely because the appellant purchased at a Court-sale. For whether the sale is made by a private individual or by a Court, it seems to me clear that the thing sold and transferred from the seller to the buyer is merely the property in the share plus a limited, not an absolute, right to have the transfer registered. But the appellant here contends, and must contend, that when he purchased from the Court, he purchased, over and above the share, the absolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to impede and hamper and embarrass the business of the Company, not to promote it. I think, therefore, that the appeal fails and should be, dismissed with costs, Lallubhai Asharam Shah, J. 5. I agree that the appeal should be dismissed with costs. 6. The preliminary objection raised by the learned Advocate General on behalf of the respondent that no appeal lies in this case is based on two grounds : first, that the proviso to Section 38 of the Indian Companies Act (VII of 1913) applies only to Sub-section (3) and not to the whole section generally; and, secondly, that the lower Court having omitted to direct an issue to be tried there can be no appeal. 7. As to the first ground I have no hesitation in coming to the conclusion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is competent. At the same time having regard to the fact that under the proviso as framed in the Indian Companies Act of 1913 the appeal is allowed from the decision of an issue directed to be tried, it is necessary and desirable that there should be a clear direction as to the trial of an issue, so that there may be no obscurity on the point, and no room for the argument that there was no issue directed to be tried and consequently no right of appeal. At the same time it is clear from the terms of the proviso that an appeal can lie from the decision of an issue directed to be tried on the grounds mentioned in Section 100 of the Code of Civil Procedure. 9. The issue in this case raises two questions, one of law, and the other of fact. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transfer is sought in virtue of a Court-sale. Mr. Thakor has relied upon Rule 79 of Order XXI of the Code of Civil Procedure in support of his argument. Under that rule after the Court-sale, both the judgment-debtor and the company are prevented from transferring the shares and from receiving any dividend from, or paying it to, any person except the purchaser; and it is urged that if the company can be prevented from transferring the shares or paying the dividend to any body except the purchaser, it must involve the result that the purchaser should be accepted as the transferee or else the company would be able to keep the benefit of the shares to itself. I do not think that the provisions of the rule involve any such result. Even thou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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