T. Sathiadev, J.
1. This Appeal and the petition are as against a common order passed by the Sub-Court, Chidambaram in E. A. Nos. 14 and 33 of 1979 in O.S. No. 54 of 1968. These two matters have been filed by the same party judgment-debtor. She filed E. A. No. 14 of 19.79 under Section 19 of Tamil Nadu Act XXXVIII of 1972(hereinafter referred to as the Act) to set aside the sale held on 6th March. 1972. E. A. No. 33 of 1979 was filed under Section 16 of the Act to stay the execution proceedings till the amendment petition to be filed under Section 15 of the Act. She claimed that pursuant to a preliminary decree passed on 7th November, 1968 and the final decree on 10th November, 1969, the suit properties were brought to sale on 6th March, 1972 and were purchased by the second respondent in the Court below. The first respondent herein, was also the decree holder. An application to set aside the sale was dismissed on 17th July, 1973 and C.M. A. Nos. 362 and 363 of 1973 filed thereon were also disposed of on 14th February, 1975. It is thereafter on 11th April, 1975, she filed an application under Section 23(1) of Act IV of 1938 as amended by Act VIII of 1973 for setting aside the sale claiming to be an agriculturist entitled to the benefits of the Act and it was ordered on 7th July, 1975. Thereafter C.M.A. No. 169 of 1976 filed against it, was allowed on 11th September, 1978, holding that the petitioner, (ranking as in the Court below) is not an agriculturist, Thereafter on 24th January, 1979 she filed the present petitions claiming relief that she is 'a debtor' within the meaning of the Act XXXVIII of 1972.
2. Respondents claimed that when the earlier petition under Act IV of 1938 had been dismissed, the petitioner had lost the right to further question the Court auction sale. When she had claimed relief on the basis that she is an agriculturist, she is estopped from claiming otherwise in the present proceedings. Rejection of the earlier petition, has resulted in the sale being automatically confirmed. Unless she is able to show that she is a 'debtor' under the Act, she has no locus standi to maintain the present petition, which is also barred by time.
3. Court below held that the petitioner having taken up the stand that she is an agriculturist, she will be estopped from claiming benefits of a non-agriculturist, and the only remedy open to her is to prefer a revision against the above orders, and when she had not filed either any revision or appeal against the earlier orders, she is estopped from claiming the benefit. On the point as to whether the petition is barred by time, it held that under Section 15 of the Act, the claim is barred by limitation, not having been filed within six months from the date of the publication of the Act i. e., 15th December, 1972.
4. Mr. Sridevan, learned Counsel for the appellant/petitioner contends that the present petition is filed only under Section 16 of the Act and there is no limitation for such a petition being filed and the relief claimed under Section 19 of the Act had not been considered by the Court below, whereas it has tried to find out whether the petition will be well within time under Section 15 of the Act, which is too premature at this stage to consider, and there could be no estoppel pleaded against the petitioner whatever be the claim she had made under Act IV of 1938, and what requires to be considered is whether she is in fact 'debtor,' as defined under Section 2(3) of Act XXXVIII of 1972, and therefore the order of the Court below rejecting the claim of the judgment* debtor, has resulted in a failure to exercise the jurisdiction vested in it.
5. Mr. Srinivasan, learned Counsel for respondents conteds that this is a clear case where the doctrine of estoppel is applicable, in that when the petitioner had invoked Act IV of 1938 and secured the benefit of stay therein and prevented the sale effected on 6th March, 1972 from being confirmed and disabled the respondents from deriving any benefits out of the sum of Rs. 22.000 deposited, she cannot take up a contrary position in the present proceedings as if she is not an agriculturist. The claim that she is entitled to statutory benefit which cannot be off-set by the application of the doctrine of estoppel is not acceptable because, the bar against the present stand taken by the petitioner is applied when she sets up facts which are contrary to what she had earlier pleaded about herself, and it is not a question of applying estoppel against the operation of a statute. In the earlier proceedings, respondents took up the stand that she was not an agriculturist and not that she was a debtor under Act XXXVIII of 1972 and therefore the petitioner cannot resile from the earlier stand on factual aspects to plead differently by invoking provisions of Act XXXVIII of 1972. In any event the petition is clearly barred by time and therefore there is no need to go into the aspects which have been adverted to earlier.
6. The main issue involved is, whether estoppel can be pleaded and applied as against the petitioner when she invokes the statutory relief under the Act. The Court below held that the petitioner having taken up the stand that she is an agriculturist, she will be estopped from claiming the benefits of a non-agriculturist. Mr. Srinivasan, learned Counsel in support of this finding claims that having made a representation on the factual aspect that she is an agriculturist, and thus led the respondents to believe in such representation, the petitioner cannot now be heard to take up a position that she is a non-agriculturist. Whatever be the statutory benefit a debtor may claim, the present petitioner is deprived of such a claim because of her own conduct in having availed of the benefit of stay under Act IV of 1938 and hence the doctrine of estoppel will be applicable. The extent or nature of relief enjoyed under the Act need not be to the full extent contemplated under the Act of having the benefit of scaling down. The very fact that by invoking Act IV of 1938 in 1975 till September, 1978, she had the benefit under the provisions of the Act of preventing the respondents from having the sale confirmed, would itself mean that she has had the benefit of the Act, though ultimately it was held that she is not an agriculturist entitled-to the benefits under the Act. In any event, when she had elected to have the benefit under Act IV of 1938, it shall be deemed that she has given up her rights under all statutory enactments including Act XXXVIII of 1972.
7. Mr. Sridevan, to discountenance these objections relies upon a series of decisions and contends that estoppel is not applicable to the facts and circumstances of this case, and when the benefit under a statute is claimed, i the doctrine of estoppel cannot stand in the way of its application, particularly when Act : XXXVIII of 1972 has been enacted to advance the public policy of giving relief to debtors. The question as to whether the petitioner had elected for one remedy or other does not arise because there were no two inconsistent rights for her to choose the one and give up the other. In support of these contentions, he first refers to the decision in Velusami Naicker v. Bommachi Naicker : (1913)25MLJ324 , wherein it was held:
A party who alleges but fails to establish a certain state of facts is not estopped in a subsequent suit between the same parties and concerning the same subject-matter from alleging a different and inconsistent state of facts.
It was a case wherein the respondent got a decree for possession and mesne profits on the plea that the lands are cultivated. But on a reversal of the decree, when appellant not only asked for return of the amount, but also asked for profits derived when respondent was in possession of the property, the stand taken by the respondent was that the lands were not cultivable which was contrary to what he had said in the previous proceedings. It was while dealing with this contrary stand taken by the respondent on the factual position as to whether the lands were cultivable or not, it was held that the previous position did not operate as res judicata and that the respondent was not estopped. This decision of the Division Bench is an answer to the objection taken by Mr. Srinivasan, learned Counsel for first respondent that even at the threshhold of the proceedings before going into the question of finding out whether the provisions of the Act will be applicable or not, the petitioner can be prevented from pleading facts which are contrary to the facts which were alleged by her when proceedings were taken under Act IV of 1938. It was his contention that he is invoking the doctrine of estoppel not against the statute, but in respect of facts which were pleaded in the earlier proceedings in that she cannot now plead different facts in the present proceedings.
8. Reliance is placed on D. Veeraraghava Reddi v. D. Kamalamma : AIR1951Mad403 wherein also it was held that when admissions are made by one party to a suit, the party making admission is at liberty to prove that such admissions were mistaken or were untrue and is not estopped by them unless another person has been Induced by them to alter his position. To invoke the doctrine of estoppel by representation, it is necessary that in acting upon it, the party, to whom it was made should have altered his position to his prejudice. In this case, petitioner claimed that she was an agriculturist as defined under Act IV of 1938, Mr. Srinivasan states that it was not the claim of the respondent in the earlier proceedings that the petitioner is a debtor within the meaning of Act XXXVIII of 1972, but what was pleaded was that she was not an agriculturist within the scope of Act IV of 1938. Therefore the respondent was quite clear that the petitioner was not an agriculturist entitled to the benefits of Act IV of 193$, and maintained the same stand right through and there was no question of the respondent altering from his position on a representation made by the petitioner that she was an agriculturist. Hence this is not a case where one of the essential ingredients to constitute estoppel is available in that, because of the representation made by the petitioner, respondent had to alter the position. Hence, as held in the aforesaid decision, it will be open to the petitioner to establish in the subsequent proceedings that the admissions or statements made earlier were either mistaken or untrue.
9. For the proposition as to whether estoppel can be pleaded against a statute, Mr. Sridevan, refers to Abdul Waheedkhan Pathan Soudhagar v. Mrs. Reny Charlkes AIR 1965 Mys303 which related to rights under Provident Funds Act, 1925 and it was held that if the statute is solely for the benefit of a person, it may be open to him to waive his rights of personal or private nature created under an agreement, but he cannot waive a benefit conferred by a statute, which has public policy for its object. A prohibition or interdiction is absolute in respect of a provident fund and it is not open for a person to circumvent the provisions of law by entering into an agreement to waive his rights and have the amounts to be brought into Court for payment to the decree-holder in satisfaction of the decree. If the statutory right conferred on a citizen is based on 'a public policy' the concept of invoking estoppel, which is a rule of evidence, will not come into play. If by establishing relevant facts, petitioner herein is entitled to the benefits under Act XXXVIII of 1972, she cannot be deprived of the benefits conferred upon her merely because she had mistakenly and without proper comprehension of her rights, pleaded benefits under a different enactment earlier. As held by the division bench decision of this Court in Velusami Naicker's case (1913) 25 M.L.J. 334 : 5 L.W. 299 and also D. Veeraraghava Reddi's case : AIR1951Mad403 it is open to her to correct the mistakes committed on factual aspects and establish the true facts in the present proceedings. Of course the onus will be upon her to prove that she is 'a debtor' within the meaning of Act XXXVIII of 1972.
10. In Maritime Electric Co., Ltd. v. General Dairies Ltd. , it was held that when a statute is enacted for the benefit of a section of the public, that is, on grounds of public policy it is not open to the opposite party to set up estoppel to prevent the applicability of the Act and it is the duty of each party to abide by the statute irrespective of the fact whether the obligation is onerous or otherwise. Dealing with the enforcement of collection of tax under Sales Tax Act in Mathra Parshad and Sons v. State of Punjab : AIR1962SC745 , the Supreme Court held that if the law requires that a certain tax be collected, it cannot be given up, and any assurance that it would not be collected made earlier, would not bind the State Government, whenever it chooses to collect it by enforcing the provisions of the Act. In a case where there was an agreement between the parties to file the award in a different Court which is against the provisions of Arbitration Act, 1940, it was held that the existence of such an agreement contrary to the provisions of the statute cannot be pleaded in estoppel because it would virtually mean estoppel against the statute, which is not acceptable. This is the view taken in Narasimham v. Ramdayal : AIR1966AP134 .
11. Mr. Srinivasan, learned Counsel by referring to the decision rendered in 44 All W. R. 150 advanced the point that the plea of estoppel is raised not against the statute but only against the petitioner, when she is trying to establish certain facts to show that she is 'a debtor' under Act XXXVI of 1972, and the facts now pleaded are different from the facts which she had pleaded when she invoked Act IV of 1938 in her application made on 11th April, 1975. No doubt it was held in this decision that even on the threshold of the proceedings, it is open to the party pleading estoppel to establish the contrary stand taken in the subsequent proceedings on factual particulars. In support of this point, he also refers to S. N. and Singh v. Rahmatdin AIR 1946Lahore 73 wherein also it was observed;
(Vide Head Note).
It is quite true that there can be no estoppel against a statute but this rule does not imply that there can be no estoppel even against a plea of a fact which has to be established before the application of the statute can be invoked. A man may not estop himself by any conduct of his from pleading that an alienation made by him is in contravention of a provision of the Punjab Alienation of Land Act. He may, however, estop himself by such conduct from pleading that he is a member of a tribe to which protection is afforded by the Act.
The two Division Bench decisions of this Court on this aspect which have been referred to above in Velusami Naicker's case : (1913)25MLJ324 and D. Veeraraghavan Reddi's case : AIR1951Mad403 in any view for reasons already stated enable the petitioner herein to satisfy the Court that what had been pleaded earlier was either untrue or under a mistaken impression and therefore the reliance placed by Mr. Srinivasan on the two decisions cited supra would not prevent the petitioner from adducing evidence as to whether she is a debtor or not.
12. On the question as to whether there can be an estoppel against statute Mr. Srinivasan refers to the decision in Jai Jai Ram v. Lakshmi Devi 1963 ALJ 832 wherein it was held that the rule that there can be no estoppel against a statute simply means that there can be no estoppel in the way of ascertaining the existence of law and hence the judgment-debtor would be estopped from pleading that she was an agriculturist and occupied the house as such even though a different stand had been taken when the matter was compromised in that ease. Where the benefit which is claimed under Act XXXVIII of 1972 is conceived of to advance a public policy, and when such statutory benefits are made available for persons who come within the ambit of the Act, by applying a rule of evidence, the applicability of the Act cannot be taken away.
13. On the aspect as to whether the petitioner had elected for one of the two remedies. Mr. Sridevan, refers to the decision rendered in Haridas Mufatlal Gagalbhai v. Vijayalakshmi Navinchandra Mafatlal Gangalbhai : AIR1956Bom721 wherein it was held:
In order to establish estoppel by election all that is necessary is that the party should have sufficient information and knowledge to be able to recognise that he has two rights inconsistent with each other and knowing that if he chooses one and enforces that right necessarily, it precludes him from taking up a different position later on.
Mr. Srinivasan refers to the decision rendered in P. Samudra Vijayan Chettiar v. Srinivasa Alwar : (1956)1MLJ276 . in which it was held that when a person is entitled to two inconsistent rights and with full knowledge an unequivocal act Is done by him preferring one, it is no longer open to him to seek the aid of the other and in such cases there is no need to go into the question of detriment of the other party.
14. Thus, it will be seen that, when the benefit provided under an Act is to advance public policy, there could be no ples of estoppel against such a statute and merely because the petitioner thought that the would be entitled to benefits under the Act IV of 1938 and invoked it, it would not prevent her from availing the benefits under the proper enactment after disposal of C.M.A. No. 169 of 1976. It will be open to her to correct the mistakes committed earlier on realising that she would not come within the scope of agriculturist under the Act IV of 1938. Respondents never took up the stand that she was a debtor under Act XXXVIII of 1972 but only pleaded that she was not an agriculturist who could derive benefits under Act IV of 1938. Respondents had not altered their position on any representation made by the petitioner. Even to-day they maintain that she is not an agriculturist apart from pleading that she is also not a debtor as defined under Section 2(3) of the Act. It must be emembered that all those who are not agriculturists under Act IV of 1938 automatically do not derive benefits under Act XXXVIII of 1972. The benefits are available only to those who are 'debtors', as defined under Section 2(3) of the Act. While defining as to who is a debtor, the proviso to the definition states that
a person shall not be deemed to be a debtor if he is an agriculturist as defined in the Tamil Nadu Agriculturists Relief Act IV of 1938 and entitled to the benefits of that Act.
15. When relief is sought by a person claiming to be a debtor under the Act, it will be open to the decree-holder to establish that the judgment-debtor is an agriculturist under Act IV of 1938 in a proceeding taken under Act XXXVIII of 1972. Thus the question whether a person is an agriculturist or not would also come up for consideration, when relief is claimed under the Act. The respondent had never claimed in the earlier proceedings that the petitioner is a debtor under the Act. Hence, by any representation made by the petitioner on factual aspects, the respondents had not altered their stand that the petitioner is not an agriculturist who would be entitled to the benefits of Act IV of 1938. If by believing the representation made earlier, respondents had come forward to plead that the petitioner was only a debtor under the Act XXXVIII of 1972 and the petitioner had asserted that she is not a debtor because of certain factual aspects pleaded by her, only in such an event, she may be disbelieved from establishing a different fact in the subsequent proceedings.
16. The respondents claim that the petitioner had derived benefits by securing stay and the respondents had suffered a detriment by the entire amount of Rs. 22,000 being locked up in deposit in Court and having been prevented from having the sale confirmed earlier, till ultimately the appellate Court had held that the petitioner is not an agriculturist and that she is not entitled to any of the benefits under Ace IV of 1938 interim orders passed by Courts have to be construed as benefits derived under the Act IV of 1938. Though reliance is placed on D. Veeraraghavh Reddi's case : AIR1951Mad403 for the point that it is unnecessary to measure the quantum or the extent of prejudice or damage caused, when prejudice or damage is established, it must be noted that the delay in the conclusion of the proceedings initiated earlier or of interim orders passed, are necessary incidents. When proceedings are instituted under a total misconception of facts and ultimately when the Court gave the verdict that the petitioner is not an agriculturist, still to hold that she had derived the benefits under the Act would be against the provisions of the Act, because benefits contemplated under the said Act would be available only to agriculturists who fall within the scope of Act IV of 1938. When the Court would finally conclude that the petitioner is not an agriculturist, it cannot still be held that she had derived benefits under Act IV of 1938 in the form of stay orders. For all these reasons, and in the light of the Division Bench decisions above referred to, I hold that estoppel cannot be pleaded against the judgment-debtor/ petitioner.
17. E.A. No. 33 of 1979 is filed only under Section 16 of the Act for stay till an application under Section 13 is filed. There is no period of limitation contemplated under Section 16 of the Act. Only after an order of stay is passed under Section 16 of the Act, within 2 months an application under Section 15 of the Act will have to be filed, which alone contemplates a condition precedent for the maintainability of such a petition. The Court below is yet to grant the stay asked for under Section 16 of the Act, and has repelled the claim of the petitioner on the ground that she is estopped from claiming benefits under Act XXXVIII of 1972. Now that it has been held that there can be no such estoppel, the Court will have to find out whether prima facie materials exist to hold that she is 'a debtor' as defined under Section 2(3) of the Act. If it is so, she will be entitled to the stay as contemplated under Section 16 of the Act, and thereafter if an application is filed under Section 15 of the Act by the petitioner, it will have to be disposed of in accordance with the law.
18. Though the two applications have been filed invoking Sections 16 and 19 of the Act, it is strange to find that the Court below in paragraph 20 of its judgment had gone into the question of finding out whether the petition will be beyond time under Section 15 of the Act, without realising that an application had not been filed under Section 15 of the Act. Therefore, at the stage when stay is asked for, it is premature for the Court to go into these aspects which are relevant for the disposal of an application made under Section 15 of the Act. Hence the conclusion arrived at that the petition has not been presented in time, is hereby set aside.
19. E. A. No. 14 of 1979 was filed under Section 19 of the Act to set aside the sale held on 6th March, 1972. There is absolutely no consideration in the order of the Court below about the petition filed under Section 19 of the Act. Therefore, the Court below is directed to consider whether the petitioner can seek relief under Section 19 or not.
20. For the foregoing reasons, In so far as E. A. No. 33 of 1979 is concerned, the Court below is directed to dispose of the said petition on a prima facie consideration as to whether the petitioner is 'a debtor' as defined under Section 2(3) of the Act XXXVIII of 1972, and thereafter, only when an application is filed under Section 15 of the Act, the Court below can go into the question whether it is beyond time or not and the other aspects which require to be considered for amending the decree. As far as E. A. No. 14 of 1979 is concerned, there being no consideration in the order of the Court below, regarding this application, it is directed to dispose it of on the merits of the matter. Hence, both C.R.P. and the C.M.A. are allowed. No costs.