Ordinarily, nobody other than a shebait can institute a suit in the name of the deity without a previous order of the Court appointing him to represent the deity.

( 1 ) THIS appeal raises the difficult question whether in a case where the shebaits of a deity have precluded themselves by their conduct from bringing a suit to protect the interests of the deity, a person interested in the proper sheba puja of the deity may institute a suit on behalf of the deity even though not appointed as next friend of the deity by the Court.

( 2 ) A private debottar was created by Bhaga-bati Dassi for the deity Sree Sree Iswar Jugal Kishore. Jiu by a deed of dedication. By the died the lady constituted herself the first shebait and provided that after her death Bejoy Lal Roy would be the shebait; and on Bejoy's death, his eldest son would be the shebait and in this way the eldest of each successive shebait would become shebait. After the death of Bejoy disputes arose between his sons, Atul Krishna and Monmatha, over the claim, to shebaiti and Monmatha instituted a suit against Atul Krishna claiming joint shebaitship with Amalya and for framing a scheme in accordance with the principles laid down in the case of -- 'pramatha Nath v. Pradhyumna Kumar', AIR 1925 PC 139 (A) by the Privy Council. An order was passed for representation of the deity by a Pleader who was appointed by the Court. It appears, however, that on 16-9-1942, the plaintiff Monmatha and the delendant Atul filed before the Court a petition of compromise and the Court passed an order in terms of the compromise in the following words;"this suit coming on this day for final disposal before Mr. K. M. Islam. Sub-Judge, 3rd Court, Alipore, in the presence of Babu Hironmoya Mitra, pleader for the plaintiff and of Babu B. N. Bose, pleader for the defendant it is ordered and decreed that the suit he decreed finally in terms of petition. Petition of compromise do form part of the decree. "the deity did not join in the petition of compromise and there was no mention oi it in the decree of the Court, The present suit was instituted by the deity through Sm. Susama Roy who, it may be-mentioned, is wife of Monmatha and as such a member of the family interested in the sheba puja of the deity. The case in the pla nt was that the scheme, as farmed in the previous plaint WAS not binding on the deity, that it was against the terms of the 'arpaunama' and aga nst the interest of the deity and that a declaration should be made declar-ing the scheme, framed in the previous suit void. inoperative and not bindng upon the plaintiff and that a new scheme should be framed for the sheba puja of the deity and management of the properties in terms of the deed of debottar.

( 3 ) THE defence was that the suit, as framed, was not maintainable and further that the deity having been made a party to the previous suit the scheme, as framed therein, was binding on it under the principles of res judicata.

( 4 ) THE trial Court held that the suit was not maintainable as framed and also that it was barred by res judicata, the scheme framed in the previous suit being binding on the deity. The learned Court below while holding that the suit was maintainable agreed with the trial Court that the suit was barred by res judicata and dismissed the appeal.

( 5 ) IT is contended before us that the suit was not barred by the principles of res judicata as the deity, though a party to the proceedings was not a party to the compromise decree that was passed.

( 6 ) IN my judgment, it cannot be held in the circumstances of the case that the decision in the previous suit operated as res judicata. It is not possible, in my judgment, to read the decree that was passed as a decree for or against the deity So far as the deity was concerned as a party to the suit, the Court must be held to have passed no order at all. In my judgment, therefore, the Courts below are wrong in thinking that the decree passed as on compromise between Monmotha and Atul will operate as res judicata as against the deity represented by a perspn appointed by the Court, who was not a party to the compromise