1. ' MUNIB AHMAD KHAN, J.--- 1, 2 and 3. According to learned counsel C.M.A. No,709 of 2006 has been moved for amendment of stay application, which has been granted, while C.M.A. No,684 of 2006 and 685 of 2006 are for placing of certain record and exemption in respect to certain documents, which applications are allowed with the consent of other side's counsel. 4 and 5. The C.M.As. Nos.712 and 714 of 2006 are listed today but mistakenly the C.M.A. No,664 of 2006 has not been listed today while this is an application similar to C.M.As. Nos. 712 of 2006 and 714 of 2006, filed by one of the J/Ds. Therefore, all three applications are taken together.
2. ' Through all these three applications made by different J.Ds. It has been stressed that accounting may be carried out to determine outstanding liabilities after adjusting the payment, which has already been made,. Mr. Ali Sibtain Fazli, Advocate representing all the J.Ds, has pointed out the document, in the form of memorandum of understanding dated 4th March, 1999 and has stated that this is an admitted document whereby sum of Rs,122 million was agreed to be paid, while the J.Ds. Have paid Rs,6.1 million, thereafter and notwithstanding this payment the bank is claiming more. He has further pointed out that under Order XXI, Rule 29, C.P.C. The J.D. Can avail the remedy of stay of execution of the decree as the property with bank is more than the decretal amount and the JDs have already filed a suit for rendition of account against the bank, as the bank has not adjusted all the payments, made by J.Ds. Nor has shown certain adjustment of the value, which has been received through payment by Messrs Mirza Sugar Mills or from sale of pledged shares. He has relied upon AIR 1928 Calcutta page 222; AIR 1936 Madras page 102; PLD 1957 Dhaka Page 603; AIR 1931 Bombay Page 247 and Order XXI, rule 29 C.P.C. And AIR 1935, Rangoon page 151 on the point of limitation as according to him an application under Order XXI, rule 29, C.P.C. Can be made at any time during the period the execution application remained pending.
3. ' On the other hand Mr. Shahab Sarki, Advocate has vehemently opposed the applications on the ground that this execution application has been filed in 1998, while these applications have been filed after much delay, therefore, in the light of 1972 SCMR Page 236, Article 181 of Limitation Act, will apply to such type of application including application under Section 47, C.P.C. He further submits that for the last seven years, the J.Ds. Have been proceeding against the decree-holder and certain extensions of time towards payment were granted at their requests and specifically on 24- 4-2002 as well as 4-11-2002, where after the Court passed a stern order and official assignee was directed to take possession of the mortgage property with police help. He further pointed out clause 5 of the memorandum of understanding, which is reproduced as under:-- "In the event of default on the part of the Customers in payment of any two consecuti"e instalments of the settlement amount as specified in Clause (2) above, the Bank shall become entitled to demand immediate payment of the full settlement amount and the Customer would be liable to pay otherwise the bank will become entitled to proceed with further action against the Securities available with the Bank." ' and submits that provision of memorandum were never complied with, therefore, all the understanding reached through it as a customer and bank have come to an end and now the bank along with mark-up is claiming a sum of Rs,157 million. He further pointed out that there is no security with the bank to match its outstanding demand as forced value of the mortgage property, determined by the official assignee, is about 100 million.
4. ' After hearing argument, it has been seen that certain relaxations during the course of execution have been granted and the conduct of the decree holder, which being transpired during the proceeding in hands, shows that no sound efforts have been taken to pay off the debts. Although, the Court can stay the proceedings under Order XXI, rule 29, C.P.C. But that can be subject to sufficient security to satisfy the existing decretal amount with future claim in respect to the mark- up, which aspect is missing in the instant case. In the execution, it is also on record that the execution was filed in 1998 while the instant applications have been filed after about seven years, which apparently late in time. The J.Ds. Could make certain efforts if they were inclined to satisfy the decree but the same is missing. It has further been noted that adjustment which has been claimed in respect to sale proceed of pledged shares does not belong to either of the J.Ds but to one Hasham Gangji as has been pointed out by the learned counsel for the decree-holder and that the payment made by Mirza Sugar Mills cannot be subjected to this execution as other proceedings in respect to Mirza Sugar Mills are already pending. In the circumstances these application have no force and accordingly dismissed. The official assignee present today, has submitted that since these applications were pending adjudication, therefore, he could not proceed further as per direction of the Court to sell the mortgage property. He requests that he may be allowed to continue the proceedings. The official assignee is allowed to proceed further in terms of the order already passed by this Court.