1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Civil Application No. 1383 of 2009 . in First Appeal (St.) No.6296 of 2009. Dattatraya S. Yadav .. Applicant v/s. Baburao V. Jawalekar ..Respondent Mr.Anilkumar Patil for the Applicant. Mrs.Chandana Salgaonkar Radia for the Respondent CORAM : D.B.BHOSALE & R.Y.GANOO, JJ. DATED : FEBRUARY 1, 2010 P.C. : 1. Heard learned Counsel for the parties. By this Civil Application the applicant has prayed for condoning 2099 days delay in filing appeal against the judgment and decree dated 5.3.2002 in Special Civil Suit No.32 of 2003. The applicant is original defendant. The suit was filed by the respondent for specific performance of the agreement dated 2.9.2002. The suit was disposed of in terms of the compromise pursis filed by the parties on 5.3.2003. It appears that the respondent-plaintiff thereafter filed execution proceeding bearing Darkhast No.128 of 2007. The applicant- 2 defendant was served in the Execution Proceeding on 16.11.2007. After contesting the execution proceeding for some time, the applicant-defendant has filed the present appeal on 4.3.2009 against the compromise decree dated 5.3.2002 contending that the compromise should not have been recorded by the court below as contemplated under Order 43 Rule 1-A(2) of CPC. 2. Mr.Patil, learned Counsel for the applicant submitted that paragraph 4 of the compromise pursis clearly stipulates that the parties were supposed to comply with certain terms and conditions which, according to the appellant, the respondent-plaintiff did not comply with and, therefore, the compromise decree deserves to be set aside. Despite specific query to Mr.Patil, he could not, and did not point out the terms and conditions which he was referring to. Even if it is assumed that the terms and conditions as contemplated in paragraph 4 of the compromise pursis were not complied with by the respondent-plaintiff, that was the subsequent act and, therefore, it is not now open to the applicant to contend that the compromise decree should not have been recorded by the Court, as contemplated under Order 43 Rule 1- A(2) of CPC. As a matter of fact, it appears that the respondent-plaintiff has already acted upon the terms of the compromise decree and deposited 3 Rs.43.28 lakhs with Murgha Rajendra Co-operative Bank Ltd., Miraj Branch, Sangli, in 2002 itself and paid Rs.10.85 lakhs to the applicant towards repair charges for the suit property. The Counsel for the respondent, therefore, contended that the appellant cannot today resile from the compromise pursis which has already been acted upon by the respondent. The applicant, in paragraph 6 has made a feeble attempt in explaining the delay in filing the appeal, which in our opinion is not at all sufficient to condone the delay of more than 6 years. The respondent- plaintiff has opposed this application by filing reply affidavit dated 28.8.2009. The applicant has not filed rejoinder denying the statements made by the respondent in his reply affidavit. No case for condoning the delay of more than 6 years, in our opinion, is made out. The application is rejected. 4. As consequence thereof, the appeal is disposed of as barred by limitation. 5. Consequently, Civil Application No.1384 of 2009 is also disposed of as infructuous. [R.Y.GANOO, J.] [D.B.BHOSALE, J.]