A sale of shares by a Court in execution of a decree is not a transfer within the meaning of the Articles of Association of a company, and the company has no discretion to refuse to register the shares in the name of the purchaser.

Srinivasa Ayyangar, J.

1. Of considerable difficulty is the question raised and discussed in these appeals. It relates to the claim of the plaintiff-appellant to require the first defendant company, a company registered under the Companies Act to register in his name certain shares purchased by him at a sale held by Court in execution of a decree and subsequently confirmed.

2. We must take it for the purpose of these appeals that the company has refused to register and the first question that arises for determination in that connexion is whether the plaintiff is entitled to seek to enforce his rights by suit. The contention of the learned vakil for the respondents with regard to this matter was that the Indian Companies Act is really in the form of a complete code dealing with all the matters relating to companies and that, therefore, if such enactment has provided a special remedy for the claim in question, then it is open to the aggrieved party to seek to enforce the remedy only by such procedure and not by separate suit. The principle would undoubtedly appear to be that if the new enactment is such that certain new rights Unknown previously to law are created by the now statute and certain remedies are provided for the infringement of such rights, it must logically follow that it was the clear intention of the legislature that such remedies should be enforced only in the manner and by following the procedure, indicated. No doubt it is open to the legislature even in other cases to take away any subsisting general right of suit and provide a special remedy instead, but it must be done by express provision and such a general right is incapable of being taken away merely by implication.

3. The argument of Mr. Alladi Krishna-swami Ayyar, the learned vakil for the respondents, with reference to this question was that Section 38, Companies Act, provides for an application for rectification of the register of shares whenever the name of any person is fraudulently or without sufficient cause entered in or omitted from the register. It does no doubt appear that the expression "omitted without sufficient cause" in this section has received a wide and liberal construction from some learned Judges both in India and England. At the same time, however, the observation is open to be made that the expression "omission" may be inapt to cover cases of refusal to register more especially when the legislature has been quite familiar with such use of the words in juxtaposition as "omit" or "refuse."

4. The contention of the respondents receives undoubtedly further support from the fact that provision is made in the proviso to that section for the Court directing an issue to be tried. In the case of Manilal Brijlal Shah v. Gordhan Spinning and Manufacturing Co. [1917] 41 Bom. 76, the relief claimed was much the same as in this case and in circumstances very similar, and a petition under Section 38, Companies Act, was apparently regarded as not only competent but proper. But there are, however, the observations in the case of Ramesh Chandra Mitter v. Jogini Mohan Chatterjee [1920] 47 Cal. 901, of Mukerjee, J., to the effect that it is now well settled that, although persons are not entitled to an order ex debito justicea the jurisdiction under Section 38 is unlimited with a discretion in the Court in the circumstances of each case. That learned Judge goes on to observe that

in a simple case where an immediate rectification is essential, it may be desirable to apply under that section; but if the case is at all complicated, an action should be brought.

5. I respectfully agree entirely with those observations. If the principle is that the provisions contained in and the procedure-prescribed by a certain enactment are exhaustive and it should be open to parties to seek for such reliefs in regular actions only in cases where the enactment can be said to create entirely a new sphere of rights and obligations, it becomes important to discuss the ques