Court Protects Idol's Properties from Mortgage Sale, Suit Allowed Despite Negligence, Appeals Dismissed

The court determined that the properties in question were absolute debutter properties dedicated to the idol and not liable for sale in execution of mortgage decrees. The present suit was not barred by Order 9, Rule 9, CPC, due to the gross negligence of the previous next friend and the existence of a fresh cause of action. Appeals by the mortgagee and sub-mortgagees were dismissed, with costs awarded to the plaintiff-respondent.

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Issues Involved:
1. Whether the properties in suit were absolutely dedicated to the family idol or merely charged with the expenses of debsheba.
2. Whether the present suit is barred under Order 9, Rule 9, Civil Procedure Code (CPC), due to the dismissal of the previous suit (Title Suit No. 196 of 1933) for default.

Issue-Wise Detailed Analysis:

1. Absolute Dedication to the Idol:
The primary contention was whether the properties in question were absolutely dedicated to the idol or merely charged with the expenses of debsheba (worship). The court examined the deeds of dedication (Ex. 5 and Ex. 7) and concluded that the properties were indeed absolutely dedicated to the idol. The court emphasized that the language of the deeds clearly indicated an absolute dedication, and there was no substance in the argument that the properties were only charged with the expenses of debsheba. The court referenced previous cases, such as "Surendro Keshub Roy v. Doorga Sundari" and "Iswari Bhubaneshwari v. Brojo Nath Dey," to distinguish the facts and emphasize that the dedication in this case was absolute and unconditional.

2. Bar Under Order 9, Rule 9, CPC:
The second major issue was whether the present suit was barred under Order 9, Rule 9, CPC, due to the dismissal of the previous suit (Title Suit No. 196 of 1933) for default. The court considered several aspects:
- Perpetual Minority of the Idol: The court noted that a Hindu idol, being a juristic person, is treated similarly to a minor in terms of legal protection against the negligence of its guardian or next friend. The idol, represented by its shebait (manager), is entitled to protection against the negligent actions of its representatives.
- Negligence of Anupama Dasi: The court found that Anupama Dasi, who acted as the next friend of the idol in the previous suit, was grossly negligent. This negligence justified reopening the questions raised in the previous suit. The court cited the principle that gross negligence on the part of a guardian or next friend in representing a minor (or an idol) in a suit can prevent the bar of Order 9, Rule 9, CPC, from applying.
- Fresh Cause of Action: The court determined that the cause of action in the present suit was not identical to the previous suit. The present suit was based on a fresh attempt to sell the debutter properties in a new execution case (Execution Case No. 107 of 1935), which constituted a new cause of action. Therefore, Order 9, Rule 9, CPC, did not bar the present suit.

Conclusion:
The court concluded that the properties in question were absolute debutter properties dedicated to the idol and not liable to be sold in execution of the mortgage decrees obtained by the defendants. The present suit was not barred by Order 9, Rule 9, CPC, due to the gross negligence of Anupama Dasi in the previous suit and the existence of a fresh cause of action. The appeals by the mortgagee and sub-mortgagees were dismissed with costs to the plaintiff-respondent.

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