NEELAMBAL Vs. MOHANARAMA CHETTIAR

JUDGEMENT

(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 1979 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, 1973. 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.) 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, 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 Naicker1, 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 be 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 it 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.