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Documents citing Fitzholmes vs The Bank Of Upper India on 9 November, 1926

P.P. Koyakutti And Ors. vs A. Veerankutti on 26 October, 1936

and Fitzholmes v. Bank of Upper India, Ltd. (1926) 52 M.L.J. 366 : L.R. 54 I.A. 52 : I.L.R. 8 Lah. 253.(P.C), the question that was considered was one of limitation for an application for a final decree. Their Lordships observed that the limitation ran only from the date of the preliminary decree which was confirmed on appeal and which was the only decree in the cause on which the final decree could be passed. Their Lordships were not dealing with the question as to what should happen if a final decree as required by the Code was passed during the pendency of the appeal.
Madras High Court Cites 17 - Cited by 7 - Full Document

Dakshnamoorthi Pathan vs Krishnasami Kadavaran And Ors. on 16 October, 1929

and Fitzholmes v. Bank of Upper India 100 Ind. Cas. 22 : 8 Lah. 253 : 25 A.L.J. 78 : A.I.R. 1927 P.C. 25 : (1927) M.W.N. 87 : 38 M.L.T. 46 : 4 O.W.N. 181 : 28 P.L.R. 117 : 52 M.L.J. 366 : 31 C.W.N. 444 : 25 L.W. 722 : 45 C.L.J. 297 : 29 Bom.L.R. 282 : 8 P.L.T. 377 : 54 I.A. 52 (P.C.) are specific, namely: "Where there has been an appeal from a preliminary mortgage-decree, the period of three years within which, under the Indian Limitation Act, Article 181; an application for a final decree must be made runs from the date of the decree of the Appellate Court and not from the expiry of the time for payment fixed by the preliminary decree." In the present case, such an application has been made within three years from the date of the decree of the Appellate Court and is, therefore, in time.
Madras High Court Cites 18 - Cited by 0 - Full Document

Khair-Un-Nissa Bibi vs Oudh Commercial Bank Ltd. And Ors. on 29 January, 1929

641 and the points in the case before their Lordships of the Privy Council in the case in Fitzholmes v. Bank of Upper India Ltd. A.I.R. 1927 P.C. 25 were ones of limitation. The question that we have to decide is not one of limitation but is whether a mortgagee who has obtained a decree for sale is not entitled to ask for a final decree for sale, for the simple reason that an appeal has been preferred against the preliminary decree. Suppose for example, a suit for sale is brought for recovery of Rs. 52,000. The defendant contends that Rs. 4,000 claimed as interest was not recoverable. The contention is disallowed by the Court of first instance and a decree is passed for the entire sum of Rs. 52,000. The defendant appeals only in so far as the decree was for recovery of Rs. 4,000, as interest. If it be the law that till the question of Rs. 4,000 is decided by the appellate Court (it may take three years to decide the point) the decree-holder must wait and cannot realize the balance of the decretal amount as to which there is no dispute and must be content with the reduced rate of interest at 6 per cent per annum, although the stipulated interest might be much larger, that law would surely be very much ungenerous and irksome. Surely, unless there be any express law to the effect, we must not deduce it from the dicta already quoted which fell from eminent Judges on a pure question of limitation.
Allahabad High Court Cites 4 - Cited by 4 - Full Document

Beni Prasad vs Om Prakash And Anr. on 14 April, 1938

11. Learned Counsel for appellant also referred to Fitzholmes v. Bank of Upper India Ltd. (1927) 14 A.I.R. P.C. 25. The actual facts of that case are not fully stated, but from p. 256 where it is stated that the judgment of the High Court, though in form, it affirms the decree of the Judge of first instance, actually works out at a different figure, because the amount of interest is not the same, and this indicates that the High Court did enhance the decree of the trial Court by decreeing a larger amount of interest. In that case it was held that the rule laid down in 6 Pat 247 should apply, that ruling being that an application for a final decree under Order 34, Rule 5(2) must be made in a period of time which runs from the date of the decree of the Appellate Court and not from the expiry of the time for payment fixed by the preliminary decree.
Allahabad High Court Cites 11 - Cited by 5 - Full Document

Govindan Nair vs Abraham on 27 September, 2002

It was also held by the Privy Council that if the preliminary decree is appealed from, time begins to run only from the date of appellate decree and not from the date fixed for payment in the preliminary decree as held by Privy Council in Jowad Hussain v. Gendan Singh, (1926) 51 MLJ 781 PC, (See also: Fitzholmes v. The Bank of Upper India in Liquidation, (1927) 52 MLJ 366 PC). As far as this case is concerned, there is no dispute that the application for final decree was filed within the time prescribed under Article 137 of the Limitation Act. It was also held that payment under Rule 8(1) of Order XXXIV can be made at any time before passing of a final decree.
Kerala High Court Cites 22 - Cited by 2 - J B Koshy - Full Document

Sital Parshad vs Kishorilal on 6 March, 1967

It is equally well-settled that where an appeal has been taken from a preliminary mortgage decree and is decided, the time for preparation of final decree is three years from the date of the appellate decree even though the appellate court may not have extended the time for payment provided in the preliminary decree, where no final decree has been prepared in between : [see Jowad Hussain v. Gendan Singh ( 2 ) J. This applies even to a case where the decree of the appellate court is made more than three years after the time fixed for payment in the preliminary decree : [see Fitzholmes v. Bank of Upper India (3) ].
Supreme Court of India Cites 8 - Cited by 8 - K N Wanchoo - Full Document

Sat Parkash And Anr. vs Bahal Rai And Anr. on 16 July, 1930

In the case of Fitzholmes v. Bank of Upper India Ltd., which follows the case of Jowad Hussain v. Gendan Singh the point is made further clear, as we find that in that case further time was granted by the appellate Court when it confirmed the preliminary decree passed by the Court of first instance. The plaintiff applied for the preliminary decree passed by the Court to be made final, and as six months had not expired since the decree of the High Court, the defendant urged that no final decree could be prepared and the High Court accepted that contention. Their Lordships of the Privy Council held that if the preliminary mortgage decree passed by the first Court is superseded by the preliminary mortgage decree passed by the appellate Court, it is the decree of the appellate Court that can be made final.
Allahabad High Court Cites 5 - Cited by 12 - Full Document

Selvamony Nadar(Died) ... 7Th vs Thaveethu Nadar on 16 June, 2021

“5.....we may state certain well settled propositions with respect to preliminary and final decrees in mortgage suits and the effect of an appellate decree in general on the decree of the trial Court. Generally speaking, the decree of the appellate Court supersedes the decree of the trial Court even when it confirms that decree and, therefore, it is well settled that only the appellate Court can amend the decree thereafter: [see Muhammad Sulaiman Khan v. Muhammad Yar Khan] It is equally well settled that where an appeal has been taken from a preliminary mortgage decree and is decided, the time for preparation of final decree is three years from the date of appellate decree even https://www.mhc.tn.gov.in/judis/ 11/18 S.A.No.57 of 2003 though the appellate Court may not have extended the time for payment provided in the preliminary decree, where no final decree has been prepared in between:[See Jowad Hussain V. Gendan Singh] This applies even to a case where the decree of the appellate Court is made more than three years after the time fixed for payment in the preliminary decree: [See Fitzholmes v. Bank of Upper India].
Madras High Court Cites 8 - Cited by 0 - G R Swaminathan - Full Document

Maqbul Ahmad And Ors. vs Pateshri Partab Narain Singh And Ors. on 6 May, 1929

9. The last point urged on behalf of the appellants is that it is the appellate Court's decree which is the last preliminary decree and in that decree the first Court's decree must be deemed to have become merged. This point must be conceded: vide Fitzholmes v. Bank of Upper India Ltd. A.I.R. 1927 P.C. 25. It is then argued that Order 34, Rule 4, Sub-clause 1, requires that a decree in terms of Rule 2, sub-Cl. C, fixing a date within six months for payment should be passed. It is accordingly contended that it was the duty of the appellate Court when it affirmed the decree of the first Court to fix a fresh date for payment and that time cannot begin to run unless such a day has been fixed and has expired. This contention is not sound. The appellate Court is neither bound to fix a period of six months for payment after its decree, nor is it bound to extend 'the time fixed by the Court below. In most cases when the decree is affirmed and the appeal is dismissed the time is not extended unless specially asked for by the judgment-debtor. This Court did not vary the time fixed for payment by the Court below. The appellant is therefore entitled at best to calculate his period from the date of the appellate Court's decree, viz., 7th June 1923.
Allahabad High Court Cites 9 - Cited by 5 - Full Document
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