1. We are of opinion that this appeal of Kawal Nain, Defendant No. 3 in the original suit, must be dismissed.
2. The position is quite simple. There were three brothers who were joint. They fell out and agreed to a partition by arbitration in 1906 which subsequently was made a rule of Court in certain proceedings in 1908. The properties in dispute were two rooms and a part of a courtyard. The plaintiff brought a suit alleging that Defendants Nos. 1 and 2 had taken part of his share which fell to him under the partition. It appears that in point of fact the share that did fall to the plaintiff was sold in execution of a decree and brought by Defendant No. 3. It was said that Defendant No. 3 was acting as benamidar for the plaintiff. Be that as it may, Defendant No. 3 did not take any part in the proceedings in the Court of first instance. He was served, He had notice of the action. He must have been aware that if he wished to raise any defence it was his duty to come to the Court and raise that defence. In point of fact the explanation has been given that Defendant No. 3 was quite content to stand aside because Defendant No. 2 was going to fight the case along the lines approved of by Defendant No. 3 and which would, in his opinion, cover all the defence that he wished to put up. In the trial Court the plaintiff failed to prove a certain permission which he said he had given to the brothers who were occupying the room and the Judge held also that the action was barred by limitation. In the lower appellate Court no very clear decision was given as to whether the action was barred by limitation. But the Judge said that the suit in any way was barred by Section 66 of the Civil P.C. The High Court reversed that decree and held that it was not barred by Section 66 intimating, however, that section would have been a complete defence to Kawal Nain. In these circumstances Kawal Nain comes here and now applies, at this stage, to be heard. We are of opinion that permission should not be granted, for the reason that he was given his opportunity to appear in the Court of first instance. He elected not to appear. He elected to trust the Defendant No. 2 and having made that election he must be deemed to be bound by it
3. The appeal is therefore dismissed with costs including in this Court fee's on the higher scale.
4. As regards the Defendant No. 2 his appeal also is dismissed.