A compromise decree passed in accordance with the prayer made in the suit, the written statements filed by all the parties, and the compromise filed by all the parties to the suit cannot be set aside on the ground that it was arrived at during the illness of one of the parties and that he did not receive his due share, especially when the said party survived for a substantial period after the decree was passed and did not challenge the same.

JUDGMENT

Arun Bhansali, J. - This appeal is directed against judgment and decree dated 2.5.2016 passed by Additional District Judge, Srikaranpur, Sriganganagar, whereby, based on the compromise arrived at between the parties, the suit for partition filed by respondent No.1 has been decreed by the trial court.

2. The appeal is reported as barred by limitation by 371 days.

3. An application has been filed under Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing the appeal.

4. Submissions have been made that the compromise was arrived at between the parties and was presented during illness of Kamal Kishore husband / father of the appellants and that after the decree was passed on 2.5.2016, Kamal Kishore expired on 21.4.2017 and the appeal has been filed on 16.8.2017. It was submitted that on account of illness and eventual death of Kamal Kishore from the date of decree till filing of the appeal, the appellants could not file the appeal in time.

5. An additional affidavit was filed in support of the application, wherein, documents pertaining to kidney transplant in the year 2013 have been produced. However, apparently no document in support of the fact that Kamal Kishore was not well from the date of passing of the decree dated 2.5.2016, has been produced.

6. As the application filed under Section 5 of the Limitation Act was wholly laconic and though additional affidavit was filed, the same also did not deal with the period between 2.5.2016 to 16.8.2017 except for the fact that Kamal Kishore died on 21.4.2017, therefore, learned counsel for the appellants was heard on merit of the appeal to find out if there was any substance in the appeal to take the said aspect also into consideration for disposal of the application under Section 5 of the Limitation Act.

7. Learned counsel for the appellants made submissions that the compromise was arrived at between the parties during illness of deceased Kamal Kishore and that he has not been given his due share by the impugned compromise decree and, therefore, the appellants are aggrieved by the said decree.

8. A perusal of the order passed by the trial court indicates that the plaintiff Pawan Kumar filed a suit for partition claiming 1/4th share in the suit property. Written statement was filed by deceased Kamal Kishore on 12.12.2015 inter alia accepting all the averments made in the plaint and making the following additional prayer:-

9. Rest of the defendants also filed written statement on 12.12.2015 accepting the averments made in the plaint and praying that decree be passed based on the site map produced. Defendant No.4 sister made additional submission that she has released her share in favour of the defendants and that she doesn't want any share in the suit property. Whereafter, the compromise signed by all the parties was presented on 12.12.2015, i.e. the same date on which the written statements were filed in the following terms:-

10. The Presiding Officer verified the contents of the compromise from all the parties and again obtained signatures of all the parties on the order sheet on the same date i.e. 12.12.2015.

11. Whereafter, on 2.5.2016 i.e. after about 5 months from the date the verified compromise was filed, the decree was passed in :

12. It is not the case of the appellants that after filing of the written statement and the compromise on 12.12.2015, which was verified by the Presiding Officer, till 2.5.2016, any application was filed by the deceased Kamal Kishore seeking to resile from the said compromise and/or the written statement.

13. In view of the fact that the compromise had been arrived at based on the written statement as filed by deceased Kamal Kishore, which is not disputed and finally the decree has been passed in terms of the prayer made in the suit, written statements and the compromise arrived at between the parties, there is hardly any ground in the appeal so as to seek interference in the impugned compromise decree.

14. Further, original defend