KATHERSA ROWTHER Vs. ABDUL RAHIM SAHIB

JUDGEMENT

(1.) The question which arises here is whether the defendant who pleads a set-off under Order 8, Rule 6, Civil Procedure Code, is to be deemed to be a plaintiff within the meaning of Order 2, Rule 2 and consequently has to suffer the consequences of an omission. Although the point of law can be stated shortly, the facts of the case are somewhat complicated and it is necessary in order to appreciate the position to refer to them at some length-

(2.) Seeni Rowther, the father of the 1 and 2nd defendants, had four sons, the other two being named Mohammad Abdulla and Abdul Rahiman respectively. The father died on the 4th January, 1922, and in the following year the sons decided to partition the assets before discharging the debts due by the estate. Each of the brothers was allotted specific properties and he undertook to discharge specified debts. The terms of the partition were set out in a deed, dated 1 August, 1923. Bach brother agreed that if he did not discharge the debts for which he undertook responsibility, any brother called upon to pay could claim against the defaulting brother a charge on the properties allotted to him. In O.S. No. 522 of 1915 of the Court of the Town Munsif of Madura, a money decree was obtained against the father. He failed to pay the decretal amount and when the sons partitioned the estate there was due under this decree a sum of Rs. 2,548 which the 1 defendant undertook to pay. In O.S. No. 105 of 1914 in the Court of the Subordinate Judge of Madura a mortgage decree had been passed against the father, and on the 1 August, 1923, the amount due to the decree-holder was a sum of Rs. 36,000. Under the terms of the partition the 1 defendant was required to pay Rs. 10,795 of this sum, the 2nd defendant Rs. 10,090, Mohammad Abdulla Rs. 13,495 and Abdul Rahiman, Rs. 1,620.

(3.) The 1 defendant failed to pay the amount due to the decree-holder in O. S. No. 522 of 1915. The result was that the decree-holder attached property which had been allocated in the partition to the 2nd defendant. On the 12 September, 1925, the attached property was sold and the purchaser obtained possession. The value of the property was Rs. 3,000. The 2nd defendant and Mohammad Abdulla failed to pay their shares of the decree obtained against the father in O.S. No. 105 of 1914 and in order to avoid a sale of the properties which had been allotted to the 1 defendant and Abdul Rahiman, they were compelled to pay what was out-, standing. In this connection the 1 defendant had to expend Rs. 2,691-5-4.