1. This appeal is directed against an order by which theCourt of appeal below, in concurrence with the Court of first instance, hasdirected the sale of properties of a religious endowment in execution of adecree for money obtained by the respondents against a former High Priest. Thecircumstances under which the decree now under execution was obtained, and theorder in question has been made, have not formed the subject of controversybefore this Court. Early in the year 1905 the respondents before us brought asuit against one Shailajananda Ojha in his character as High Priest of thedeity Baidya Nath in the District of Deoghar for the recovery of Rs. 1,961 asprincipal, and Rs. 1815 as interest thereon due under a registered bond. On the27th September 1905, the defendant put in a petition of compromise in which heprayed that the claim might be decreed in full, and made recoverable by theattachment and sale of the properties of the temple, if the judgment-debt wasnot satisfied on or before the 16th October 1908. Before the decree could bemade on the basis of this confession of judgment, one Umeshananda Jha, nowappellant before us, applied to the Subordinate Judge for adjournment of thehearing of the suit. He stated that the defendant had ceased to be the HighPriest under a decree of the High Court; that he was no longer competent torepresent the properties of the endowment; that no decree ought to be made uponhis admission and that the suit ought not to be heard till a new High Priesthad been duly appointed. As a matter of fact, on the 15th April 1897,Umeshananda himself, along with other persons, had commenced a suit undersection 539 of the Civil Procedure Code of 1882, for administration of thetrust; for removal of Shailajananda from the office of High Priest on variouscharges of misconduct and malversation: for the appointment of a High Priestand for incidental reliefs. On the 4th July 1901 a decree was made in that suitby which Shailajananda was dismissed from the office of High Priest, andelaborate directions were given for the election of his successor and formanagement of the properties of the endowment. On the 5th August 1901,Shailajananda preferred an appeal to this Court, by which he assailed thepropriety of the decree in every particular. On the 16th June 1905 the appealwas dismissed, and the decree of the original Court by which Shailajananda hadbeen dismissed from the post of High Priest was confirmed. [Shailajananda v.Umeshananda : 2 C.L.J. 460]. On the 27th September 1905, whenShailajananda confessed judgment, the position, therefore, manifestly was thatthere was a final decree against him by which he was dismissed from his officeof High Priest. The petition of Umeshananda, however, in the suit by therespondents for recovery of money due under the registered bond, was completelyunheeded; and notwithstanding his protest, the Court made a consent decree.That decree, it will be observed, could not be executed before the 16th October,1908. Meanwhile, pursuant to the decree of this Court in the suit foradministration of the trust, Umeshananda himself was elected as the HighPriest. On the 23rd August, 1909, the respondents decree-holders applied forexecution of the consent decree against the properties of the endowment in thehands of Umeshananda. Amongst other objections to the execution, he urged thatthe decree was not operative, in the circumstances stated, against theproperties of the endowment, and prayed that the application for executionmight be dismissed. The Subordinate Judge summarily overruled this objection onthe ground that the validity of the decree could not be questioned in executionproceedings and directed the attachment and sale of the properties mentioned inthe schedule to the application of the decree holders. Upon appeal, that orderhas been confirmed by the District Judge. The validity of that order has nowbeen questioned in this Court substantially on two grounds, namely first, thatit was open to the appellant to establish that he was not the representative ofthe original judgment-debtor, and, secondly, that, upon the admitted facts,there was no room for controversy that, as a matter of law, the properties ofthe endowment, now in his hands as the High Priest, were not liable to be soldin execution of the decree. In our opinion, these contentions are well founded,and must prevail.

2. In support of the first contention it has been argued bythe learned Counsel for the appellant, not that the validity of a decree can beassailed in the course of proceedings in execution of that decree, but thatthis principle has no application to the case before us. In fact, theauthorities are numerous and well-established on principle that it is not opento judgment-debtor to question the validity of a decree to which he is a party,in proceedings in execution of that decree, [see the judicial decisionscollected and reviewed in the case of Nogendra Bala Chowdhurani v. Secretary ofState for India in Council : 10 Ind. Cas. 532] [LQ/CalHC/1911/200] . But, herethat doctrine has manifestly no application. The decree-holders do not seek toexecute the decree against the original judgment-debtor. As observed by theirLordships of the Judicial Committee in the case of Jagadindra Nath Row v.Hemanta Kumari Debi : 32 C. 129 : 31 I.A. 203 : 7 Bom. L.R.765, it is only in an ideal sense that an idol may be regarded as a juridicalperson, capable, as such, of holding property; the possession and management ofthe dedicated property belongs to the shebait: this carries with it the rightto bring whatever suits are necessary for the protection of the property andevery such right of suit is vested in the shebait, not in the idol. The samedoctrine, which is applicable to the institution of suits, obviously governsthe defence of claims sought to be enforced against the properties of the idol;in other words, when a decree is obtained against the properties of anendowment, the decree is not against the idol, but against the shebait in hischaracter as representative of the idol. In the case before us, the plaintiffhas obtained a consent decree against Shailajananda on the assumption that hewas, at the time the decree was made, the High Priest of the temple of BaidyaNath. He seeks to execute that decree against the properties of the endowmentin the hands of Umeshananda, the present High Priest. Umeshananda takes theobjection that the decree cannot be executed against the properties in hishands, unless it is established that he is the representative of the originaljudgment-debtor. In our opinion it is not only open to the present High Priestto urge this objection, but incumbent upon him, in his character as HighPriest, to interpose this defence, if there is any substance in it on themerits. But it has been argued that if the appellant is not the representativeof the original judgment-debtor, it is not competent to him to appeal againstthe order of the Court below; this contention is clearly unfounded [Bindeswariv. Thakur Lakhpet Nath, : 15 C.W.N. 725 : 8 Ind. Cas. 26] [LQ/CalHC/1910/477] therespondents have obtained the order in their favour as properly made inexecution proceedings; they cannot now impugn the appeal as incompetent on theground that the order could not have been made under section 47. We must,therefore, examine the soundness of the contention of the appellants. Theanswer to the question, whether he is the representative of the previous HighPriest, depends upon the nature of the decree and the circumstances under whichit was made [Ishan Chunder v. Beni Madhub : 24 C. 62 : 1C.W.N. 36]; in other words, the test to be applied is, whether in so far as theinterest sought to be attached in execution of the decree is concerned, the appellantis bound by the decree It is further obvious under sub-section (3) of section47 of the Code of 1908, that the question whether the appellant is or is notthe representative of the original judgment-debtor, must be determined by theCourt by which the decree is executed. We must consequently held that when adecree has been obtained against a person on the allegation that he is theshebait or High Priest of a temple, and that decree is sought to be executedagainst, the successor of the judgment-debtor, it is open to the person againstwhom the application for execution is made, to show that the decree wasobtained against a person who was, either as a matter of fact or of law, notthe shebait or High Priest of the temple and that consequently it is notcapable of execution against the properties of the endowment in his hand. Thatquestions of this character can be decided in the course of the executionproceeding is conclusively established by analogy of two important classes ofcases. In the first place, it has been ruled by this Court, in the case of AmarChandra v. Sebak Chand : 34 C. 642 : 11 C.W.N. 593 : 5 C.L.J.491 : 2 M.L.T. 207, which accords with Umed v. Goman Bhaiji 20 B. 385 andShivram v. Sakha-ram : 33 B. 39 : 10 Bom. L.R. 939 : 1 Ind.Cas. 459, that where a money-decree has been passed against the father of aMitakshara family and upon the death of the judgment-debtor before issue ofexecution, the decree-holder seeks to proceed against the sons, it is open tothe latter to urge that the debts on which the decree was passed were taintedwith immorality and consequently, the decree was not enforcible against them.This view has, now received Legislative sanction in section 53 of the Code of1908. In the second place, where a decree has been obtained against a Hinduwidow, and execution is sought after her death against properties of herhusband in the hands of the reversionary heirs, it is open to the latter tourge that the decree was not capable of execution as against them [RamkisoreChuckerbutty v. Kally Kanto Chuckerbutty 6 C. 479; Premomyi Choudhurani v. PreoNath Dhur 23 C. 636 and Sadasi Kuer v. Ram Gobind Singh 11 Ind. Cas. 10 : 16C.W.N. 857 : 14 C.L.J. 91]. We must consequently hold that the question raisedby the appellant against whom execution is sought by the decree-holderrespondents falls within the scope of section 47 of the Code of 1908, and oughtto have been investigated by the Courts below. The first ground upon which thejudgment of the learned District Judge is assailed must consequently prevail.

3. In support of the second ground taken by the appellant,it has been urged by his learned Counsel, that at the time the consent decreewas made, Shailajananda was incompetent to represent the endowment, and thatconsequently the decree now sought to be executed, has no legal efficacywhatsoever against the properties dedicated to the deity Baidya Nath. Insupport of this contention, reliance has been placed upon the well establisheddoctrine that, when a suit has been instituted and a decree made, for theexecution of a trust, the powers of the trustee are thenceforth so farparalysed that the Authority of the Court must sanction every subsequentproceeding: consequently, the trustee cannot commence or defend any action orsuit, or interfere in any other legal proceeding, without first consulting theCourt as to the propriety of his intended action. This doctrine was recognizedas well founded on principle in the cases of Mitchelson v. Piper (1836) 8 Sim.64 : 5 L.J. Ch. 294; Jones v. Powell (1841) 4 Beav. 96 : Irby v. Irby (1857) 24Beav. 525 and Minors v. Battison (1876) 1 A.C. 428 : 46 L.J. Ch. 2 : 35 L.T. 1: 25 W.R. 27 : [see also Shewen v. Vanderhorst (1830) 2 Rus. & My. 75 Affd,(1831) 1 Rus. & My 347 : 1 L.J. Ch. 107]. The position, it may be conceded,is different if a suit has merely been instituted, but a decree not yet made[Cafe v. Bent (1843) 3 Hiiro. 249 and Neeves v. Burrage (1849) 14 Q.B. 504 : 80R.R. 292 : 19 L.J.Q.B. 68 : 14 Jur. 177]; the mere institution of the suit doesnot take away the power of the trustee to exercise his authority; there must bea decree in the case, for if there is nothing before the Court but a bill, itmay be dismissed at any time and the authority of the trustee, left as it was,before the bill was filed. But even in the case of a mere bill it has been paidthat the trustee ought to consult the Court in important matters, beforeincurring large expenses [Attorney General v. Clack 1 Beav. 467 : 3 Jur. 215and Talbot v. Marshfield 4 Eq. 661 : 37 L.J. Ch. 52]. The principle thusexpounded in the decisions of the Court of Chancery, to which we have referred,has been recognised and adopted in the American Courts as founded on reason andgood sense [Abell v. Brown (1880) 65 Maryland. 217; Abell v. Abell (1891) 75Maryland. 44 at p. 64 : 23 Att. 71 : 22 Atlantic 389]. It has even been ruledin the American Courts that if a trustee, after a decree has been made in asuit for administration of the trust, acts in defiance of the order of theCourt, his act amounts to a contempt for which he may be arrested and committed[Wortman v. Wortman (1853) Taney. 362 : 29 Fed. Cas. 303]. The decisions inEngland and America just mentioned are in no way binding upon us asauthorities; but they clearly indicate that the doctrine in question is foundedon grounds of justice, equity and good conscience, and, not on any technicalrules of English or American jurisprudence. Now, what is the position in thecase before us, if the circumstances are examined in the light of theprinciples just explained A suit had been commenced under section 539 of theCivil Procedure Code of 1882, for dismissal of the then High Priest,Shailajanada on grounds of misconduct and malversation, for the appointment ofhis successor and generally for the administration of the trust under thedirection of the Court. The primary Court had decreed the suit on the 4th July1901, and that decree had been confirmed by this Court on appeal on the 16thJune, 1905. The effect of that decree was to dismiss Shailajananda from theoffice of High Priest. Notwithstanding this decree which was couched in theplainest possible terms, Shailajananda, as defendant in the suit of therespondents, confessed judgment on the 27th September 1905. Long before thatdate, his authority to bind the endowment had been terminated by the decree ofthis Court. The plaintiffs-respondents were apprised of this circumstance, andthey were warned that the acceptance of a consent decree might involve them inthe gravest difficulties. The protest, however, was not heeded, and the Court,it, must be admitted, did not realize its duties in a matter of thisdescription. The plaintiffs and the defendant combined to invite the Court tomake a decree for money which was to be ultimately executed against the propertiesof the endowment. Before the Court accepted this compromise as the foundationof its decree, it was incumbent upon it to ascertain under section 375 of theCode of 1882, whether the suit had been adjusted by a lawful agreement orcompromise. If the matter had been seriously examined for a moment from thispoint of view, it would have been manifest to all parties concerned that thesuit should not be decreed on confession of judgment by the defendant. But ithas been contended by the learned Vakil for the respondents that the decree isnevertheless. binding upon the properties of the endowment in the hands of thepresent appellant on the principle that it was not obligatory uponShailnjananda to contest the claim of the plaintiffs; and he has relied uponthe doctrine recognised by their Lordships of the Judicial Committee in LekrajRoy v. Mahtab Chand : 14 M.I.A. 393 : 10 B. L.R. 35 : 17 W.R.117, that it is not the duty of persons in the position of guardians ofinfants, to contest all-claims against the estate of their wards, whether wellor ill-founded. Reference has also been made to the judgment of Mr. JusticeMarkby in Tarini Charan Ganguli v. Watson : 12 W.R. 413 : 3N.L.R. A.C. 437 in which that learned Judge considered the question of thepotency of a compromise by a Hindu widow to affect the estate of her husbandwhen it passes into the hand of the reversionary heirs. It is not necessary forus to examine in detail the judicial decisions to which reference has beenmade, because they are, in our opinion, clearly distinguishable. We areconcerned here with a consent decree made on the basis of an admission by aperson whose authority to find the trust estate had been completely terminatedby the decree of this Court. As pointed out by this Court in the case of RaiLakshi Dasi v. Kattyani Dasi, (R. A. No. 389 of 1908), though a consent decreeis just as binding upon a party to the proceeding as a decree after acontentions trial, yet a consent order is a mere creature of agreement, and, ifgreater sanctity were attributed to it than to the original agreement itself itwould be to give the branch an existence independent of the free [Hurddersfieldv. Lister (1895) 2 Ch. 273 : 64 L.J. Ch. 523 : 12 R. 331 : 72 L.T. 703 : 43W.R. 567]; the consent order is only the order of the Court carrying out anagreement between the parties. In the light of this principle, what is theposition of the parties here On the day Shailajananda confessed judgment, ifhe had entered into an agreement with the respondents to bind the endowment,his act would have been null and void, because, as already explained, hisauthority as High Priest had been terminated. He was a trespasser in possessionand the persona who accepted the agreement, in spite of the protest of theappellant, were fully apprised of this circumstance. There is, therefore, noanalogy between the case before us and the class of cases to which referencehas been made in the course of argument at the liar, namely cases in whichwidows and guardians of infants sought to bind the estates of their husbands orwards by their acts.. The principles deducible from Karim-ud-din v. GobindKrishna : 10 C.L.J. 243 : 13 C.W.N. 1117 : 3 Ind. Cas. 795 :31 A. 497 : 36 I.A. 138 : 6 A.L.J. 807 : 11 Bom. L.R. 911 : 6 M.L.J. 275 : 19M.L.J. 687 and Khunni Lal v. Gobind Krishna 13 C.L.J. 575 : 10 Ind. Cas. 477 :15 C.W.N. 545 in which their Lordships of the Judicial Committee reversed thedecisions of the Allahabad High Court in Gobind Krishna v. Abdul Qayyum 25 A.546 and Gobind Krishna v. Khunni Lal 29 A. 487 : 4 A.L.J. 365 : A.W.N. (1907)151 are of no assistance to the respondents they merely show that a familysettlement is not necessarily invalidated because one of the parties happens tobe a limited or qualified owner in the position of a Hindu widow, daughter ormother. Nor is there any analogy between the case before us and the cases inwhich trustees have released or compounded debts due to the trust estate [Bluev. Marshall 3 P. Wm. 381 and Forshaw v. Higginson 8 De G. M. & G. 827 : 20Beav. 435 : 26 L.J. Ch. 342 : 3 Jur. (n.s.) 476 : 5 W.R. 424]. The position,therefore, is, in our opinion, incontestable that the consent decree which therespondents seek to execute, is, in no way, binding upon the properties of theendowment. The second objection, therefore, taken by the appellant, mustsucceed. We may add that we do not regret this conclusion because it ismanifest from the proceedings that the plaintiffs have deliberately, with theireyes open and in spite of the protest of the appellant, taken a consent decreeunder circumstances by no means free from suspicion.

4. The result, therefore, is that this appeal is allowed;the order of the Courts below discharged, and the application for executiondismissed with costs in all the Courts. We assess the hearing fee in this Courtat five gold mohurs.

.

Umeshananda Dut Jhavs. Mohendra Prosad Jha(21.06.1911 - CALHC)