JUDGMENT

Coldstream, J. - Bhondu Mal, the father of Bidhi Chand the present insolvent, having been declared insolvent, the Official Receiver, Delhi, in whom Bhondu Mal's estate had vested, proposed to sell Bhondu Mal's share in his undivided family property. Bidhi Chand thereupon instituted a suit in the Court of the Subordinate Judge, Fourth Class, Delhi, for possession by partition of one-sixth of the family property joining the Official Receiver as a defendant. Of this suit Bidhi Chand had given the Official Receiver notice under Section 80, Civil P.C. The suit was dismissed on the ground that Bidhi Chand was not entitled to seek for partition during his father's lifetime. Bhondu Mal died and Bidhi Chand instituted another suit for one-fifth of the property, again joining the Official Receiver but without giving him notice under Section 80, Civil P.C.

2. The Subordinate Judge rejected the plaint under the provisions of Order 7, Rule 11(d), Civil P.C., holding that the suit was barred as Section 80 had not been complied with. Bidhi Chand appealed to the District Judge who reversed this decision holding that no notice was necessary as the suit had not been instituted against the Official Receiver in respect of any act purporting to have been done by him in his official capacity. He remanded the case under Order 41, Rule 23, Civil P.C., for decision on its merits. I may mention that in the trial Court the plea that notice was not necessary had not been taken, the plaintiff's contention being that the notice of the previous suit was sufficient. The Official Receiver has appealed to this Court and it is argued on his behalf that the District Judge erred in holding that notice was not necessary and that in any case he ought not to have accepted the appeal on a plea not set up at the trial. For the plaintiff-respondent it is contended that no appeal lies as the order of the District Judge is not a decree, for it merely admits the plaint, nor is it an order under Order 41, Rule 23, Civil P.C., nor any other order against which an appeal is allowed. It is further contended that the learned District Judge was right in holding that the suit was not one in which notice was required by Section 80.

3. That an order of an appellate Court setting aside an order of the Court of first instance rejecting a plaint, and directing the Court to proceed with the trial of a suit on its merits is not an order under Order 41, Rule 23 and is not appealable under Order 43, Rule 1(u) is now well settled: see Braja Lal Mitra v. Upendra Krishna (1907) 6 CLJ 214, which appears to have been consistently followed in this Province, e.g., in Tirath Singh v. Ramchand AIR 1916 Lah 8 and Cotton Trading Syndicate Commission Agency v. Malawa Mal Shiv Ram Das AIR 1929 Lah 83. The trial Court's order purported to be one under Order 7, Rule 11 and that is the provision of the Code applicable, as laid down in Bachchu Singh v. Secy. of State (1903) 25 All 187. Appellant's counsel has not referred me to any authority in support of his contention that when a plaint has been rejected for want of compliance with Section 80 the order of rejection is to be regarded not as one passed under Order 7, Rule 11, but as a judgment disposing of a suit on a preliminary point, the reversal of which by an appellate Court must be regarded as a proceeding under Order 41, Rule 23 against which an appeal lies under Order 43, Rule 1(u). My conclusion is that the order of the District Judge is not appealable and that this appeal must therefore be dismissed. The question whether the District Judge was correct in his view that the suit was not one of which notice to the Official Receiver was required is not free from difficulty. It is true that the Official Receiver had not notified his intention to sell the plaintiff's property but the plaint itself makes it clear that the proposed sale was the reason why the suit was instituted. It is now settled that Section 80 is applicable to any form of suit