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The properties which were the subject-matter of title Suit No. 196 of 1933 were made debutter by the deed of dedication (Ex. 5). This suit brought on behalf of the plaintiff deity was dismissed on 19th November 1934, for default owing to and by reason of the gross negligence and laches of Anupama Dasi defendant 9 who represented the plaintiff deity in that suit as his next friend and that the said next friend was further guilty of gross negligence and laches in not preferring an appeal against the order of the Subordinate Judge dated 31st August 1935, dismissing the application under Order 9, Rule 9, Civil P.C. That there was good ground of appeal against the same. The present suit is therefore not barred by Order 9, Rule 9, Civil P.C. Defendant 15 is about to sell wrongfully municipal premises No. 9 and 10, Karim Bux Lane, in execution of the mortgage decree obtained by him on the basis of the mortgage executed in his favour by Jogesh on 9th July 1927 (Ex. C1) in Execution case No. 107 of 1935. The said mortgage constituted a breach of trust by Jogesh who was in possession of the mortgaged properties as shebait on the basis of an arpannama Ex. 5. The mortgage as well as the decree passed on the mortgage are not binding on the plaintiff deity. On these allegations the deity prays for a declaration that the properties which were the subject-matter of Title Suit No. 196 of 1933 are absolute debutter properties of the plaintiff deity and that municipal premises Nos. 9 and 10, Karimbux Lane are not liable to be sold in Execution Case No. 109 of 1985.

17. The real cause of action in the previous suit was the attempt of the appellants to sell the debutter properties in execution case No. 109 of 1933. This execution case, however, was dismissed for non-prosecution after the institution of the previous suit. The cause of action of the present suit is a fresh attempt by the appellants to sell the debutter properties by starting another execution ease, namely, 107 of 1935. It cannot be said, therefore, that the cause of action in the present suit is identical with the cause of action in the previous suit. In this view of the matter, Order 9, Rule 9 is not a bar to the present suit. When a suit is dismissed under Order 9, R. 8 of the Code the suit can be restored under Order 9, Rule 9 if there was sufficient cause for the non-appearance of the plaintiff. Where the suit is dismissed under R. 8 for default of the plaintiff owing to gross want of care and diligence on his part the suit cannot be restored under Rule 9. In view of the decision of the Judicial Committee in Chajju Ram v. Neki ('22) 9 A.I.R. 1922 P.C. 112, it is doubtful whether the order of dismissal can be set aside by an application for review under Order 47, Rule 1, Civil P.C.

In India, the Crown is the constitutional protector of all infants and as the deity occupies in law the position of an infant, the shebaits who represent the deity are entitled to seek the assistance of the Court in case of mismanagement or maladministration of the deity's estate and to have a proper scheme of management framed which would end the disputes amongst the guardians and prevent the debutter estate from being wasted or ruined. This principle was reiterated in Rabindra Nath v. Chandi Charan , The Privy Council itself directed the framing of a scheme in the case of a private debutter in Pramatha Nath v. Pradyumna Kumar and the case was remanded to the trial Court expressly for that purpose. The same directions were given by this Court in Prasad Das v. Jagannath Pal which was also a case of private debutter....

60. While considering whether the possession of two joint shebaits became adverse to the idol when they openly claimed to divide the property between them, Sir George Rankin observed that "until the shebait was removed or controlled by the Court, he alone could act for the idol." This case is also an authority for saying that at least in the Limitation Act the provisions in the Act as to lunatics and minors were not intended to be extended to idols. In Gopal Sridhar Mahadev v. Sasibhusan Sarkar the analogy of minority of deities was declared to be a pure fiction for which no authority was to be found in Hindu law, and it was held that there was no conceivable principle on which on such analogy a contract otherwise good and valid could be taken out of the class of contract of which specific performance might be granted under the law. The position may be summed up as follows: (1) (a) The idol is a juristic person and as such it may sue and be sued; (b) from its very nature it must act through some human agency--shebait is such agency. Until the shebait is removed or controlled by the Court he alone can act for the idol. (2) Apart from the idol's right of suit, a shebait as such has a right of suit and may be sued. Normally he is the human agency through which the idol holds, enjoys, and manages the property and the right of suit vests in him and not in the idol: Jagadindra Nath Roy v. Hemanta Kumari Debi ('04) 32 Cal. 129. (3) Worshippers and members of the family have interest in the debuttar and a right of suit is given to them also to protect the interest of the debutter. (a) This does not mean that these persons can as of right represent the deity in a legal proceeding, (b) They can sue in their own name and on their own behalf for the benefit of the debutter. (4) In exceptional circumstances, a deity can be represented in a legal proceeding by a person other than a shebait only by the special appointment of the Court: Pramathanath v. Pradyumna Kumar ; Kanhaya Lal v. Hamid Ali . (a) In such a case such person may be under the control of the Court in the manner in which and to the extent to which a next friend or a guardian of a minor is under such control under the provisions of Order 32, Civil P.C. In my judgment the Suit No. 196 of 1933 was not a suit of the idol. The person who purported to represent the idol as its next friend was not the person entitled in law so to represent the idol, and she was never appointed by the Court so to represent the idol. At best it was a suit by Anupama in her own right as a worshipper and as such its result would not in the least affect the present suit.