The plaintiff opposite party instituted Title Suit No. 14 (H) of 1990 on 3.12.90 in the Court of learned Assistant District Judge, Shillong praying for a decree for declaration that withholding of the refund of Rs. 22, 62,452.07 together with interest thereon by the defendants who are Collector of Customs and Central Excise, Shillong and other officials of the Central Excise and Customs Department, Govt of India was illegal and also for mandatory injunction. Along with the plaint the plaintiff-opposite party also filed an application under Order 39 Rule 1 and 2 CPC read with section 151 CPC praying for an ad-interim injunction pending disposal of the suit. The said application was registered as Misc Case No. 139 (H) 90 in Title Suit No. 14 (H) 90. The learned Assistant District Judge issued notice fixing on 7.12.90 to show cause as to why the prayer for injunction should not be granted. The defendant appeared on 7.12.90 and submitted an application praying for 2 weeks time to file show cause. In the said application, the defendants also raised question of maintainability of the suit in view of the bar under the provision of Central Excise and Salt Act, 1944 and the Rules framed thereunder. The learned Assistant District Judge by order dated 7. 12. 90 fixed 17.12.90 for hearing of the petition. But the hearing could not take place on^!7.12.90 and ultimately the matter was posted for consideration on 19.12.90. On 19.12.90, the learned counsel for the defendants submitted that although the suit and the Misc Case was not maintainable, however, the defendant had no objection if a petition by way of reminder is made to the Assistant Collector for consideration of refund and in case the claim for refund was found genuine and in accordance with law, the defendants would have no objection to refund the same. On the basis of submission, the learned Assistant District Judge passed the order dated 19.12.90, the operative part of which is as follows - " ... ... Upon hearing and submission of both the learned counsel for the parties, learned counsel for the opposite parties/defendants have submitted that they have no objection to the petition if the claim for refund as alleged by the plaintiff/petitioner is genuine and in accordance with law. ... Upon hearing and submission of both the learned counsel for the parties, learned counsel for the opposite parties/defendants have submitted that they have no objection to the petition if the claim for refund as alleged by the plaintiff/petitioner is genuine and in accordance with law. The opposite parties/defendants will have no alternative but to release the same in accordance with the decision of the Hon'ble High Court and under the provision of the Central Excise and Salt Act, 1944. The plaintiff is directed to remind the defendants by petition in this matter and that the refund be released forthwith. ... " 2. The plaintiff submitted a reminder to the Assistant Collector by claiming refund of the amount of Rs. 22,62,452.07 with interest on 20.12.90. The Assistant Collector after receipt of the reminder by letter dated 26.12.90 intimated the plaintiff that prima facie, claim of refund did not appear tenable, however, asked the plaintiff to file a written objection against the tentative finding on or before 10.1.91 and to appear for personal heating on 11.1.91. According to the petitioner, plaintiff- opposite party did not file objection nor appears on 10.1.91. Thereafter, the Assistant Collector, Customs and Central Excise, Shillong on perusal of the record by order dated 14.1.91 intimated the plaintiff that claim for refund was not tenable stating the reason for the finding and also asked the plaintiff to file appeal to the Appellate Authority, if aggrieved by the said order dated 14.1.91. After receipt of the order dated 14.1.91,the plaintiff filed applications on 19.1.91 under Order 39 Rule 2A CPC read with section 12 of the Contempt of Court Act, alleging wilful violation/ disobedience of the direction of the Court made in the order dated 19.12.90 passed by learned Assistant District Judge. On 19.1.91, the civil Court was closed due to long winter vacation. The Court was to open on 2.2.91, However, from the order sheet it appears that the learned Assistant District Judge entertained the application 19.1.91, the day on which the Court was closed for winter vacation on being satisfied that the matter was of urgent nature calling for immediate action otherwise the object would have been defeated by. delay. The Court was to open on 2.2.91, However, from the order sheet it appears that the learned Assistant District Judge entertained the application 19.1.91, the day on which the Court was closed for winter vacation on being satisfied that the matter was of urgent nature calling for immediate action otherwise the object would have been defeated by. delay. Leaded Assistant District Judge issued notice by order dated 19.1.91 to - (1) Shri V.Lalvula, Collector, Customs and Central Excise, Shillong, (2) Smti L. R .Mithran, Additional Collector (Tech), Customs & Central Excise, Shillong, (3) Shri D.Marandi, Deputy Collector, Customs & Central Excise, Shillong,(4) Shri D D.Rishi, Assistant Collector, Customs & Central Excise, Shillong (5) Shri G. Nongbet, Superintendent, Central Excise, Shillong and (6) Union of India, through Collector, Customs & Central Excise, Shillong asking them to appear before his Court on 2nd February, 1991 at 10 AM and to show causes, if any, as to why necessary orders in accordance with law should not be passed for the attachment of their property and also for their detention for wilful disobedience and violating the orders and for not carrying out the direction to release the refunds forthwith. The defendants filed an objection showing cause on 2.2.91 and thereafter filed this revision petition on 4.2.91 challenging the jurisdiction of the Court to entertain the Title Suit No. 14 (H) 90 and the Misc Case without notice under section 80 CPC and also the maintainability of the suit in view of the expressed bar under the relevant ' provisions of the Central Excise and Salt Act, 1944. The petitioner has also challenged the impugned notice of proceeding in Misc Case No.5 (H) of 1991 issued under Order 39 Rule 2A of CPC and under the Contempt of Court Act. 3. On 6.2.91 the petition was moved before the Division Bench, since no Single Bench was constituted at Shillong and the Division Bench on the prayer of the petitioner entertained the application. The opposite party filed caveat and Mr.K.B.PauJ, learned counsel appeared before the Division Bench of the Court. Upon hearing the learned counsel for the petitioner and the learned counsel for the caveator, this Court issued Rule and passed ad interim order dated 6.2.91 suspending operation of the order dated 19.1.91 passed by learned Assistant District Judge. The opposite party filed caveat and Mr.K.B.PauJ, learned counsel appeared before the Division Bench of the Court. Upon hearing the learned counsel for the petitioner and the learned counsel for the caveator, this Court issued Rule and passed ad interim order dated 6.2.91 suspending operation of the order dated 19.1.91 passed by learned Assistant District Judge. On the prayer of the learned counsel for the opposite party-caveator, petition was fixed for hearing on 11.2.91. On 11.2.91, in the course of hearing, the counsel for the petitioner submitted that subsequent to the filing of revision petition on 4.2.91,order dated 5.2.91 in Misc Case. No. 5 (H)91 was passed by the learned Assistant District Judge and prayed for necessary amendment of the petition to impugn this order. The prayer was allowed and leave was granted to the petitioner to file an application for amendment on or before 13.2.91 and the hearing was adjourned to 14.2.91.On 14.2.91, on the prayer of the opposite party that its learned counsel was ill, the hearing was adjourned till 21.2.91. However, further hearing of the petition could not commence either on 21.2.91 or on 22.2.91, the last day of sitting of that Division Bench at Shillong and the petition was released from part heard with the direction that it might be put up before a Single Bench for hearing. 4. I have heard Mr. H. Ahmed, learned counsel for the petitioner and Mr. S. S. Sharma, learned counsel for the opposite party. Mr. Sharma has raised preliminary objection that the petition is not maintainable, inasmuch as, in this petition the notice of the suit has been impugned and that against the injunction order dated 19.12.90, appeal lies and the revision petition is not maintainable against the order dated 19.12.90. 5. I have perused the petition and I find that although the objection of Mr. Sharma is technically correct, however, in substance, the petition is directed against the proceeding of Misc Case. No. 5 (H) of 1991, initiated for alleged violation and/or disobediance of the direction dated 19.12.90 passed by the learned Assistant District Judge in Misc Case No. 139 (H) of 1990 aris­ing out of TS No. 14 (H) of 1990 as well as the subsequent orders passed on 5.2.91 in the said proceeding. No. 5 (H) of 1991, initiated for alleged violation and/or disobediance of the direction dated 19.12.90 passed by the learned Assistant District Judge in Misc Case No. 139 (H) of 1990 aris­ing out of TS No. 14 (H) of 1990 as well as the subsequent orders passed on 5.2.91 in the said proceeding. Although in the revision petition, the petitioner has also questioned the maintainability of the suit, I am not entertaining this question in this petition. The petitioner may raise the question of maintaina­bility of the suit in the Court of learned Assistant District Judge, who will decide that question as preliminary issue and will pass appropriate order after hearing the parties. Scrutiny in this petition is confined to drawing up of proceeding in Misc Case No. 5 (H) 91 for alleged violation and/or dis­obedience of the direction issued in the order dated 19.12.90 and the order dated 5.2.91 passed in the said proceedings. 6. Mr. Ahmed, learned counsel for the petitioner has submitted that the order dated 19.12.90 was not an order of injunction, inasmuch as, it is apparent from the order that on 19.12.90 it was submitted on behalf of the defendants that the plaintiff might ma! e an application by way of reminder to the defendant-Assistant Collector for refund of the amount and if the claim for refund was genuine and in accordance with law, the defendants would have no objection to refund the amount and on the basis of the submission the learned Assistant District Judge passed the order dated 19.12.90 directing the plaintiff to make application by way of reminder. The plaintiff made application and the Assistant Collector gave notice asking the plaintiff to file objection with supported materials against his tentative view that claim for refund was not tenable and also for appearance on the date of hearing as fixed. But the plaintiff neither filed any objection nor appeared on the date fixed for hearing. As such, the learned Assistant Collector on the basis of the materials on records, passed the order dated 14.1.91 holding that the claim for refund's was not tenable. In the said order, the Assistant Collector also intimated that the plaintiff might prefer appeal against the order passed by him, if so advised, to the appropriate authority. As such, there was no question of violation of any order. In the said order, the Assistant Collector also intimated that the plaintiff might prefer appeal against the order passed by him, if so advised, to the appropriate authority. As such, there was no question of violation of any order. The learned counsel for the petitioner has further submitted that the Court of learned Assistant District Judge has no jurisdiction to initiate proceedings under the Contempt of Court Act and that no injunction having been issued, the question of initiating procee­ding under Order 39 Rule 2A CPC did not and could not arise, as such, the proceeding of Mise Case No. 5 (H) 91 is wholly misconceived and the impugned orders passed in the said proceedings are illegal and without jurisdiction, the same is liable to be set aside and quashed. 7. Mr. Sharma, learned counsel for the opposite party has submitted that the order dated 19.12.90 was an order of injunction. Rightly or wrongly, the Court passed the order directing to release the amount of Rs. 22, 62,452.07 p. forthwith. If the defendants were aggrieved by the said order, they could have challenged the said order in appropriate forum by preferring an appeal. But so long the order was in force, it was to be obeyed. The defendant may approach the Court of learned Assistant District Judge and explain the reasons and grounds for which the defendants violated and/or disobeyed the order dated 19.12.90. 8. I have considered the submissions made on behalf of the petitioner as well as on behalf of the opposite party and have perused the impugned orders and other materials on records. From the order dated 19.12.90, it is apparent that when the learned counsel for the defendants submitted that the plaintiff might make application by way of reminder for the Assistant Collector for refund of the amount and if it was found that the claim of refund of the amount was genuine and legal, the defendants would have no objection to release the amount. On the basis of the submission the learned Assistant District Judge by the order dated 19.12.90 directed the plaintiff to make and application by way of reminder and in the same sentence passed an unusual order, namely, "that refund will be released forthwith." Even telegraphic order would have been more explicit. On the basis of the submission the learned Assistant District Judge by the order dated 19.12.90 directed the plaintiff to make and application by way of reminder and in the same sentence passed an unusual order, namely, "that refund will be released forthwith." Even telegraphic order would have been more explicit. I fail to understand, how a senior member of subordinate judiciary in the cadre of Assistant District Judge, could pass such an unusual ambiguous order wholly divorced from the context. The abrupt order does not carry any sense when read with reference to the context, inasmuch as, on the basis of the submission of the defendants that the plaintiff might make an application by way of reminder to the defendant Assistant Collector, and that if the claim for refund was genuine and in accordance with law the defendants would have no alternative but to realease the amount, the order was passed. Only rational and reasonable order would have been - if it was found by the defendants that the plaintiff's claim was genuine and in accordance with law, the refund would be released forthwith. Indeed, this would be only rational and reasonable meaning of the cryptic order. When the plaintiff approached with an application under O 39 R 2A CPC and with the application under the Contempt of Court Act alleging violation and/or disobedience of the direction of the Court as per order dated 19.12.90, the learned Assistant District Judge should have applied his mind to the order dated J 9.12.90 before initiating proceeding on a date on which the civil Court was closed on account of winter vacation. The order dated 19.12.90 in my opinion, can not be an injunction under O 39 R 1 and 2 CPC. Order 39 Rule 1 and 2 CPC empowers a Court for issuing injunction restraining other party from acting in certain manner which would be prejudicial to the person seeking injunction and not mandatory injunction. The condition precedent for issuing temporary injunction under Order 39 Rule 1 are :- "1. Order 39 Rule 1 and 2 CPC empowers a Court for issuing injunction restraining other party from acting in certain manner which would be prejudicial to the person seeking injunction and not mandatory injunction. The condition precedent for issuing temporary injunction under Order 39 Rule 1 are :- "1. Gases in which temporary injunction may be granted - Where in any suit it is proved by affidavit or otherwise- (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends to remove or dispose of his property with a view to (defrauding) his creditors. (c) that the defendant threatens, to dispossess the plaintiff or other­wise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or to make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property (or dispossession of the plaintiff, or otherwise causing injury to the plaintiff, in relation to any property in dispute in the suits as the Court thinks fit, until the disposal of the suit or until further order." Neither in the plaint nor in the application for ad interim injunction any of the above condition for grant of ad interim injunction stipulated in Order 39 Rule 1 CPC can be found. The defendants are officers of the Government of India and obviously, if the suit is ultimately decreed, Govt of India will have to satisfy the decree. As such, the question of alienation and/or removal of the amount claimed by the plaintiff, during the pendency of the suit by the defendants and causing of irreparable loss or injury to plaintiff could not and did not arise. 9. As already observed, the only rational and reasonable meaning of the cryptic order that 'refund will be released forthwith' is that in case the defendants found that the plaintiff-opposite party's claim for refund was geunine and in accordance with law, they should refund the amount without delay. Admittedly.the Assistant Collector after consideration of the application found that the claim for refund was not tenable and asked the plaintiff to file appeal, if aggrieved by the order. Admittedly.the Assistant Collector after consideration of the application found that the claim for refund was not tenable and asked the plaintiff to file appeal, if aggrieved by the order. As such the question of disobedience and/or violation of the order dated 19.12.90 by the defendants could not and did not arise. The entire proceeding of Misc. Case No. 5 (H) of 1991 is therefore, misconceived, illegal and without jurisdiction and the impugned order dated 5.2. 91 passed in the Mise Case No. 5 (H) 91 by the learned Assistant District Judge is equally illegal and without jurisdiction. For the reason stated above,the petition is allowed. The impugned procee­ding of the Misc Case No. 5 (H) 91 is quashed and impugned order dated 5.2.91 passed in the said proceeding is set aside. I make no order to costs. Before parting, I would like to observe that the approach of the learned Assistant District Judge in the entire proceeding is unusual. There was no urgency for entertaining the application filed on 19.1.91 on which date civil Court was closed for long vacation. Without deciding the suit on merit, final relief by way of ad interim order could not be granted. The learned Assistant District Judge justified entertainment of the application on 19.1.91 - the date or which the civil Court was closed, on the ground that if immediate action was not taken object would have been defeated by delay. What was the object ? Was it to force the defendants to refund the amount of Rs. 22,62,452. 07 p immediately, in otherwords, to grant complete relief to the plaintiff interim order without adjudicating the suit on merit? If the order dated 19.12.90 was read rationally and reasonably with reference to the context of passing the order, a person of ordinary prudance would have understood that there was no question of violation and/or disobedience of the order dated 19.12 90.lt is apparent that learned Assistant District Judge has taken unusual interest in the case of the plaintiff, which can not but be reprehensible.