( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CIVIL APPLICATION NO. 1217 OF 2009 IN SECOND APPEAL STAMP NO. 25885 OF 2008 Waman s/o Namdeo Shinde Since deceased, by L.Rs. Hanumant Shivdas Shinde APPLICANT VERSUS Nvanath s/o Ganpati Kale and others. RESPONDENTS ..... Mr. V.C. Patil, advocate holding for Mr. U.B. Bondar, advocate for the applicant. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 3rd November, 2009] PER COURT : 1. Heard. 2. The application for condonation of delay of 144 days and simultaneously the question regarding admission of the appeal are considered together. 3. According to the deceased appellant (original defendant No.1), due to his old-age and due to his residence in remote area, there was no proper communication received by him regarding the impugned ( 2 ) judgement and decree. He was unable to file the appeal because he was suffering from all kinds of old age diseases. He was unable to travel from remote area to Aurangabad for filing of the second appeal. Hence, the delay was caused and is sought to be condoned. 4. The delay appears to be unintentional. The deceased was old aged person is an admitted fact. He was aged about 71 years at the time of the suit and subsequently, he died during pendency of the second appeal. It is probable that he was unable to receive the communication regarding the result of the first appeal. I, therefore, accept the explanation for condonation of delay. 5. So far as merits are concerned, the plaintiff’s suit for specific performance of the agreement of sale came to be dismissed. The plaintiff preferred an appeal which also came to be dismissed. In fact, the deceased defendant No. 1 is not adversely affected by the concurrent judgements. The second appeal is filed only because the finding rendered by the trial Court and the first Appellate Court as regards execution of the agreement of sale dated 05-05-1982 is found to be ( 3 ) inconvenient. Thus, the second appeal is preferred only against adverse finding and not against any executable decree as such. The appeal against such finding is not maintainable under section 97 of the Code of Civil Procedure and, therefore, the second appeal is dismissed. [ V.R. KINGAONKAR ] JUDGE NPJ/ca1217-09