Short Note : 1. In a summary suit under Order 37 of the Code of Civil Procedure (hereinafter referred to as the Code) a decree for an amount of Rs. 14,575/- with costs was passed against the non-applicants. The decree, however, ordered the amount of decree to be paid in instalments. According to that decree an amount of Rs. 6,000/- was to be paid by 31-12-1978. Another amount of Rs. 6000/- was to be paid by 30-6-1979 and the balance of the amount decreed was to be paid by 31-12-1979. The decree further provided that on default in making payment of any instalment the entire balance amount will be liable to be recovered. 2. On 3-1-1979 the decree-holder filed an execution for recovery of the entire decretal amount as according to him the judgment-debtors had committed a default in payment of the first instalment. It was on 4-1-1979 that the judgment-debtors deposited a sum of Rs. 6000/-. They also submitted in application dated 4-1-1979 stating inter alia that 31-12-1978 was Sunday and so on. 1-1-1979 the amount of Rs. 6000/- was rendered to Shri S. K. Agarwal, the counsel for the decree-holder but he refused to accept it on the ground that without obtaining instructions from the decree-holder he would not be able to accept the amount and pass on a receipt. It was on 3-1-1979 that Shri Agarwal refused to accept the amount. The prayer made in the application was to condone the delay in depositing the amount of the first instalment. The decree-holder disputed that application. He even submitted an affidavit. Later Shri Agarwal advocate also filed an affidavit controverting the allegation made in the application submitted by the judgment-debtors. It was however, stated in the affidavit that on 3-1-79 Shri D.P. Chopra, Advocate did tell him that the munim of the judgment-debtors had come along with the amount of the first instalment. To Shri Chopra it was admitted by Shri. Agarwal that a default war already been committed and if the judgment-debtors are willing to pay the whole amount he can accept the same. Shri Chopra then suggested that the judgment-debtors could not arrange for the amount till 31-12-1978 and so this amount should be accepted after condoning the delay. To this Shri Agarwal did not agree and told him to talk to the decree holder. Shri Chopra then suggested that the judgment-debtors could not arrange for the amount till 31-12-1978 and so this amount should be accepted after condoning the delay. To this Shri Agarwal did not agree and told him to talk to the decree holder. Thereafter the judgment-debtors submitted another application mentioning so many facts which were not mentioned in the first application dated 4-1-1970. An affidavit of one Mehtabsingh said to be the Munim of the judgment-debtors was also filed. Even thereafter some applications and replies were filed on behalf of the parties. 3. The executing Court by the impunged order condoned the default. What seems to have weighed with the learned Additional District Judge is that the default was due to mistake of the counsel and no party should suffer because of counsel's mistake. Held : In my opinion there is nothing to make out that there was any mistake on the part of the counsel. Shri Chopra, Shri Agarwal has sworn an affidavit and denied any alleged talk having taken place on 1-1-1979. Shri Chopra has not sworn any affidavit in support of allegations may by the judgment-debtors. On 3-1-1979, Shri Agarwal rightly refused to accept the amount in absence of the instructions of the decree-holder. Even on this question the Court below has merely expressed a possibility about there being a mistake of Shri Chopra. 4. Learned counsel for the non-applicants firstly contended that by withdrawing the amount of instalment deposited by the judgment-debtors the decree-holder will be deemed to have weighed their right to execute the decree for the entire amount. This submission deserves to be rejected on the short question that the execution had already been filed and the application and the reply submitted clearly negative any inference of waiver. 'The other submission was based on a decision of the Patna High Court in Mohanram and others v. Sardar Rudhsingh and others (AIR, 1966 Patna 265). In this decision it was in execution of the money decree' that the executing Court had fixed instalments for repayment of the decretal amount. There was a default in payment of the first instalment. A full Bench decision of the Bombay High Court in Waman Vishwanath Bapat v. Yeshwant Tukaram (AIR 1949 Born. In this decision it was in execution of the money decree' that the executing Court had fixed instalments for repayment of the decretal amount. There was a default in payment of the first instalment. A full Bench decision of the Bombay High Court in Waman Vishwanath Bapat v. Yeshwant Tukaram (AIR 1949 Born. 97) was distinguished by the learned judge by observing that "the fact of that case are completely distinguishable on the ground that it was in relation to the instalments fixed in a decree and the executing Court had no power or jurisdiction to go beyond that decree." In paragraph 4 of the report the learned Judge also observed that "learned counsel next referred to Order 20, rule 11 (2) of the Code of Civil Procedure to drawn some support from an unreported decision of the Nagpur High Court. The judgment was not available but he relied upon reference to that case in the commentories of the Civil Procedure Code where/it is admitted that the Court held that after the instalments had been fixed under Order 20, rule 11, the Court had no jurisdiction to extend the time, This again is clearly distinguishable in the same way as the Bombay case." In my opinion, the present case before me is also clearly distinguishable from the Patna case as the instalments were fixed in the present case by the decree itself while in the Patna case the instalments were fixed in the execution. That apart what seems to have weighed with the learned Judge was the illiteracy of the rustic litigant which on the fact of it does not appear in the instant case. In the Patna case the judgment-debtor's plea was that the information regarding the grant of instalments were received by him only after the expiry of the date on which the first instalment was to be paid. Therefore, this Patent case is of no assistance to the judgment-debtors. 5. On the facts is they have been as stated above I do not find any ground whatsoever for condonation of the delay even if there be any such power to condone the same. The executing Court has condoned it on bare possibility. The discretion if there be any with the executing Court has to be exercised on judicial principles and not in an arbitrary or fanciful manner which it appears to be position in this case. The executing Court has condoned it on bare possibility. The discretion if there be any with the executing Court has to be exercised on judicial principles and not in an arbitrary or fanciful manner which it appears to be position in this case. Therefore the impunged order cannot be upheld and has to be set aside. Revision dismissed.