SUBRAMANIA IYER Vs. DHARMAMBAL AMMAL

JUDGEMENT

(1.) THE lower Court has in my opinion, gone wrong with reference to the second question whether the defendants are entitled to the set-off claimed. THE claim of set-off arose out of the same partition deed under which the plaintiff based her claim. According to that document, if any of the sharers was compelled to pay a common debt, he would be entitled to recover the share due from the other members of the family. THE plaintiff, on the basis of this provision, recovered what was her share of the decree debt payable by the defendants. THE defendants alleged that they had paid certain debts and that the plaintiff was liable for half the share of those debts. THE Subordinate Judge refused to try this question. It seems to me that Rule 6 of Order VIII of the Civil Procedure Code applies and that he was wrong in refusing to investigate the claim of set-off. THE Court has no option, so far as I can see, to refuse to adjudicate on a claim to setoff if such claim falls within the purview of Rule 6, Order VIII. THE decree will be set aside and the lower Court will try the counter-claim of the defendants and pass a decree in accordance with the finding. Costs of this petition will abide the result.