Pakenham Walsh, J.
1. This suit was brought for a declaration that the suit property belongs to the plaintiff exclusively and that his son who had been declared an insolvent had no interest in it. The Official Receiver had sold the share of Plaintiff's son in the properties to the defendant.
2. Several preliminary issues were raised, Nos. 2 to 6, and on one of them, issue No. 4, which was the only one decided the suit was dismissed. That issue was: is the suit for a mere declaration without a prayer to set aside the sale by the Official Receiver and for possession sustainable? The Court did not even decide the matter as to whether the suit without a prayer for possession was maintainable as will be seen from paragraph 8 of the judgment. It dismissed the suit on the ground that the suit could not be maintained without a prayer to set aside the sale by the Official Receiver.
3. It has been held by a Full Bench of this Court in Basava Sankaran v. Arjaneyulu I.L.R.(1926) 50 Mad. 135 : 51 M.L.J. 529 that a sale by an Official Receiver is a private sale. Vide also in Ma Sein v. P.L.S.K. Firm I.L.R.(1929) 7 Rang. 477. The lower Court follows a decision reported in Rajani Kanta v.. Ramani Mohan : AIR1927Cal934 . It will be seen, however, that in that case the plaintiff had already submitted to the jurisdiction of the Insolvency Court for a decision of the question, evidently under Section 4 of the Insolvency Act; and such a decision would, be final under Section 4(2), so that that decision can be maintained upon these grounds alone. In the present case, although there was such an application made at one time, the Court refused to-decide the question and referred the plaintiff to a suit, saying:
The petitioner is at liberty to file a suit regarding the title to the property sold by the Official Receiver.
4. The order is dated 29th August, 1931. It is clear therefore that there has been no decision by the Court either under Section 4 of the Act or by way of appeal against the Receiver's sale under Section 68. It has not been attempted before us to maintain the correctness of the lower Court's view. The appeal must therefore be allowed and the suit remanded for trial on the further issues. Costs to abide the result. Refund of Court-fee.