ORDER This is a Chamber Summons for execution of the balance sum alleged to be due under an order passed by consent in a Company petition being No. 40 of 1973. By that order, the respondent No. 2 was directed to pay a sum of Rs. 1,25,000/- to the petitioner. The order further provided that the petitioner will accept a sum of Rs. 1,00000/- in full settlement of the claim if the same is paid in the manner following : a) A sum of Rs. 25,000/- on or before December 31st, 1975 and thereafter a sum of Rs. 25,000/- every four month until the entire amount of 1,00000/- is paid. b) In default of payment of any one of the said instalment the entire sum of Rs. 1,25.000/- or the balance thereof shall become payable with interest in the rate of 12% per annum. 2. Admittedly, there instalments of Rs. 25,000/- have been paid and within the time stipulated in the consent order. According to the decree-holder, there has been a default in payment of the fourth instalment of Rs. 25,000/- within the stipulated time i.e. 31st December, 1976. According to the Tabular Statement, a sum of Rs. 50,000/- being the balance of the decretal amount together with interest at the rate of 12% is sought to be realized by the present execution application. 3. The curious fact to note is that a cheque for Rs. 25,000/- was sent by the respondent No. 2 to M/s Khaitan and Co. towards the payment of the last instalment on the 30th December, 1976 as will appear from the covering latter within the Annexure ‘A’ to the Affidavit of D.S. Mazda affirmed on the 3rd March, 1980. In the latter, it was stated that this cheque in favour of Messrs Fowler and Co. was for the payment of fourth and final instalment due by 31st December, 1976. In paragraph 4 of the affidavit of Mazda, it is stated that as both 31st December, 1976 and 1st January, 1977 were holiday and as Mr. P.L. Agarwalla of M/s. Khaitan & Co. who was looking after the case on behalf of the respondents was not attending office and had gone abroad, the cheque was sent to M/s. Fowler and Company on or about 15th January, 1977. 4. Mr. P.L. Agarwalla of M/s. Khaitan & Co. who was looking after the case on behalf of the respondents was not attending office and had gone abroad, the cheque was sent to M/s. Fowler and Company on or about 15th January, 1977. 4. Mr. P.S. Bose appearing on behalf of the decree-holder drew my attention to a decision of the Division Bench of the Patna High Court in the case of Rambilas Rai (Singh) v. Ramji Rai (Singh) reported in AIR 1960 Patna 562. In that case, it was held that where, under the terms of a consent decree allowing payment in instalment in the event of default in payment of any of the instalments the decree holder is entitled to realize the entire amount due at once in the said execution proceeding the very fact that the consequence of the default in payment of the instalment is that the entire decree remaining unpaid became executable at once shows that the time was clearly of the essence of the contract and in face of such an order, it cannot be contended that the judgment debtor has the option to pay on later dates. 5. It was further held that a provision in a consent decree that in the event of failure to pay the instalment, the whole amount of the original decree would be recoverable is not in the nature of a penalty or forfeiture giving the right to equitable relief. 6. Reliance was also placed on a decision of the Bombay High Court in the case of Waman Vishwanath Bapat Vs. Yeshwant Tukaram reported in AIR 1949 Bombay 97. In that case, on construction of a similar decree, it was held the default clause was not a case of penalty or forfeiture. The obligation undertaken by the judgment-debtor was a result of concessions given by the decree-holder and therefore the judgment-debtor was not entitled to relief against the breach committed by him. 7. Mr. Sudipto Sarkar appearing on behalf of the judgment-debtor draw my attention to a decision of this court in the case of Deepchand Mini Vs. Ticamchand Mini reported in 78 CWN 478. 7. Mr. Sudipto Sarkar appearing on behalf of the judgment-debtor draw my attention to a decision of this court in the case of Deepchand Mini Vs. Ticamchand Mini reported in 78 CWN 478. In that case, the compromise decree, the material portion whereof is set out hereinbelow was as follows: “It is ordered and decreed that the defendant is to pay to the plaintiff the sum of Rs.10,000/- And in the event of the defendant paying to the plaintiff the sum of Rs. 8000/- in the following manner. It is further ordered and decreed that the plaintiff shall accept the same in full settlement of his claim in this suit. ……………” Thereafter the mode of payment is set out. 8. It would be apparent from the decree before Deb, J. in the above mentioned case that it is in identical terms with the decree before me. Paragraph 24 of the Report is as follows:- “It was then argued by Mr. Roy that a concession was granted by the plaintiff to the defendant to pay the decretal amount of Rs.10,000/- by instalments of Rs.8,000/- and therefore it cannot be said that the default clause is in the nature or a penalty in view of the decision of the Bombay High Court in the case of Sheth Burjarji Vs. Dr. Madhavilal Jassingbhai reported in ILR 58 Bom 610. But as rightly pointed out by Mr. Roy, there the two compromise decree expressly provided that defendants must pay Burjorji Rs.27,000/- within 15 days and on such payment being made Burjorji would forgo the balance of the decretal amount “by way of concession” to the defendants and hence that decision has no application to the facts and circumstances of the instant case before me.” As will appear from paragraphs 39 and 40 of the Report Deb J. in the above case held that the default clause was in the nature of a panel provision in terrorem and therefore the judgment-debtor was entitled to relief against the penal and forfeiture clause. 9. There are all the authorities cited before me. 10. Before I deal with the law on the subject, it seems to me that, in the facts and circumstance of the instant case, there has not been any default on the part of the judgment debtor. 9. There are all the authorities cited before me. 10. Before I deal with the law on the subject, it seems to me that, in the facts and circumstance of the instant case, there has not been any default on the part of the judgment debtor. As noted above, the judgment-debtor sent the last instalment by a Cheque on the 30th December, 1976 with a covering letter mentioning clearly that the amount is payable to M/s. Fowler and Company by the 31st December, 1976. Therefore, in my view, the judgment debtors had fully complied with his obligations in terms of the consent order. Thereafter, the default, if any, was entirely of M/s. Khaitan and Co. for the reasons which have been mentioned in paragraph 4 of the affidavit of Mazda mentioned above. It is a well settled principle of law, and a salutary one at that, that no litigant should suffer for the fault of his lawyer. If the decree-holder is allowed to realise the sum of Rs.50,000/- as is sought to be done now, it would be the worst kind of suffering of a litigant for the fault of his lawyer. 11. Mr. Sudipto Sarkar, for the judgment debtor, contended that the time fixed for the payment of instalment was not of the essence of the contract. In view of my finding that there has been no default, I do not feel it necessary to enter into this controversy. 12. The judgment of Deb, J. mentioned above is clearly on all fours with the facts of the present case. That decision is a clear authority for the proposition that a default of payment of this nature is in the nature of a penalty and the judgment-debtor is entitled to equitable relief against such a clause. This judgment is binding on me unless I disagree with it and sent the matter to my Lord the Chief Justice to constitute a larger Bench to decide this question. I find no cogent reasons for doing so. 13. For all the reasons given above, this execution application is only partly allowed. There will be an order to the effect that the decree holder is entitled to realise from the judgment-debtor a sum of Rs. 25,000/- with interest thereon at the rate of 12% per annum from the date when it became due till the date of realisation. 14. For all the reasons given above, this execution application is only partly allowed. There will be an order to the effect that the decree holder is entitled to realise from the judgment-debtor a sum of Rs. 25,000/- with interest thereon at the rate of 12% per annum from the date when it became due till the date of realisation. 14. In the event of the judgment-debtor paying the sum of Rs.25,000/- with interest thereon at the rate of 12% per annum from the date when it became due till the date of realisation within 3 weeks from date the operative part of my order will remain stayed permanently. In the event of the money not being paid within the time specified the balance amount will become executable forthwith There will be no order as to cost. Petition partly allowed.