Alfred Henry Lionel Leach, C.J.

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 1st 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 1st 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 o