TMI Blog1996 (10) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... court to place this petition for rehearing today. Having heard learned counsel for respective parties, the petition is being disposed of finally with their consent. By this petition, the petitioner Smt. Mohinder Kaur, wife of the late Sardar Saran Singh, seeks a writ in the nature of certiorari quashing the proclamation of sale dated September 9, 1996, and an order dated September 17, 1996, passed by respondent No. 2, the Tax Recovery Officer, Kanpur (contained in annexures 8 and 9 to the writ petition respectively), whereby auction sale of the house of the late Sardar Saran Singh, bearing corporation No. 113/14, located in Swarup Nagar, Kanpur, fixed on October 17, 1996, at " Aaykar Bhawan ", Civil Lines, Kanpur, is adjourned to Octobe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The main submission of learned counsel for the petitioner is that the total amount sought to he recovered as income-tax dues is not more than Rs. 9 lakhs and there are certain other dues against the firm and Sardar Gurmukh Singh for which the above referred to factory of the firm has also been attached. The land appurtenant to the factory is worth about Rs. 1 crore, measuring about 1 acre, therefore, the said amount may first be recovered from the property of the firm, i.e., the factory, which is under attachment, and if the total recovery is not satisfied then only they may switch on the recovery proceedings to the residential house in question. The reference of rule 86 of the Income-tax Rules, 1962, was also given. However, in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered opinion, in the instant case, the respondents should first sell the factory which is under attachment and if the sale proceeds are not sufficient to satisfy the whole recovery, then only the residential house in question which is also under attachment can be sold. This proposition also finds support from the view taken by the apex court in Ambati Narasayya v. M. Subba Rao, AIR 1990 SC 119, that it is obligatory on the court and not discretionary that only such property or a portion thereof as is necessary to satisfy the decree, be sold, and the tendency to sell blindfold the entire property be deprecated. This being so and as a consequence of the aforesaid discussion, the impugned orders dated September 9, 1996 and September ..... X X X X Extracts X X X X X X X X Extracts X X X X
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