JUDGMENT 1. This Rule arises on an application under S.115 of the Code of Civil Procedure, read with Article 227 of the Constitution of India and is directed against the order passed by the learned Munsif, 2nd Court, Sealdah, acting as the Thika Controller, allowing an application under S. 151 of the Code of Civil Procedure and setting aside the earlier order allowing the landlord to re-enter on the ground of abandonment by the thika tenant. In Misc. Judicial Case No. 40 of 1975 the petitioner filed an application under S.9 of the Calcutta Thika Tenancy Act for entering on the holding on the ground that the thika tenant voluntarily abandoned his holding without notice to the landlord and without arranging for the payment of his rent which fell due. Along with the application necessary notice in the prescribed forms was filed. The notice was duly published at the holding and after examining the landlord the application was allowed by order dated 5th July, 1975. On 7th of August, 1975 an application was filed by the thika tenant under S. 151 of the Code of Civil Procedure praying for setting aside the ex parte order dated 5th July, 1975. After hearing both the parties the application under S. 151 was allowed and the order dated 5th July, 1975 was set aside. Being aggrieved, the landlord has come up to this Court. 2. Mr. Nanigopal Sarkar, learned Advocate appearing on behalf of the opposite party, in the first place, contends that the application is hopelessly barred by limitation and even assuming that the application may be treated as one under Article 227 of the Constitution of India, after the amendment of Article 227 such an application challenging an order of the Thika Controller does not lie. It is true that on the face of it the application is barred by limitation. But when the petitioner did not file any separate application under S.5, in the application reasons for delay in filing the same, have been mentioned. Again, on 21st September, 1978 an application was filed under S.5 of the Limitation Act stating the very same facts which were stated in the original application. If the application be treated as one under Article 227 then for filing such an application there is no period of limitation. The question is whether such an application is maintainable. Again, on 21st September, 1978 an application was filed under S.5 of the Limitation Act stating the very same facts which were stated in the original application. If the application be treated as one under Article 227 then for filing such an application there is no period of limitation. The question is whether such an application is maintainable. In a very recent decision reported in 1978 CHN 831 (Smt. Sujata Maitra v. State of West Bengal & Ors.). it has been held "there may be cases where an appeal from an order of a tribunal or authority is provided to a court within the hierarchy of Courts, established by statutes, such courts exercising appellate power in their turn, subordinate and inferior to the High Court, and judgments of such courts may be subject to appeal or, revision by the High Court. In such cases, the judgments of such subordinate courts also are subject to judicial interference under Art 227 in appropriate circumstances", Relying on this decision I am of opinion that this application is maintainable. 3. Mr. Ashoke Chandra Guha, learned Advocate appearing on behalf of the petitioner, challenges the order very much on the ground that an application under S.151 of the Code is not maintainable as the Thika Controller is not a court, but a persona designata and that being so, S.151 of the Code of Civil Procedure is not applicable to a case pending before the Thika Controller. Moreover, any order passed by a Thika Controller is appealable under S.27 of the Act. On that ground also an application under S.151 for setting aside an order passed by the Thika Controller ii not maintainable. In support of his contention Mr. Guha relies on a decision reported on 68 CWN 1064 (Sibani Rani Dutta v. Balai Chandra Dutta & Ors.). In this case, it has been laid down that "where the Code itself makes an express provision for a particular remedy, the party, who does not avail of such remedy, cannot, as a rule, be allowed to resort to S.151, for, to do so would be to defeat the object and utility of the Code itself." In the case, before their Lordships an ex parte order allowing an application for selling aside: a sale under S.174(3) of the Bengal Tenancy Act was challenged. In was held that the said order is appealable and that being so, S. 151 does not lie. In the present case also, as has already been staled, tile order passed by the Thika. Controller under S. 9 is appealable. Again, the tenant could take steps under sub-s. (3) of S. 9 of the Act. In the present case nothing has been done and as such Mr. Guha contends that application under S.151 is not maintainable. Mr. Guha also relies on a decision reported in AIR 1977 CHN 87 (Mr. Namita Dhar Vs. Dr. Amalendu Sen) where myself sitting with B.C. Ray, J. held that “an appeal lay against a particular order. But instead of preferring an appeal an application was filed under S. 151. That application was rejected. Against the said order no revision lay to this. Court". Thus, on a consideration of the facts of the case and the legal position. I am of opinion that the application under Article 227 is maintainable and that being so, there is no question of limitation. Moreover the delay is filing the application has been sufficiently explained. I further find that the application which has been filed under S.151 of the Code before the Thika Controller is not maintainable. 4. With regard to the merits of the case Mr. Guha contends that the proceeding under S.9 of the Act is a summary proceeding. The landlord is only required to show that the tenant abandoned the holding without making any arrangement for payment of rent. If these two conditions are satisfied, then the landlord may file an application under S.9 after the expiration of a period of 2 months from the date of voluntary abandonment. Along with the application he was required to file notice referred to in subs. (2) and subject to the provisions of sub-s. (3) and of S.10 may enter on the holding and let out the same to another tenant or occupy it himself. It is seen from the record that the notices were duly filed in Form No.1 appended to the rules as provided under Rule 6 of the Calcutta Thika Tenancy Rules. The tenant examined himself and stated that he came to know about the proceedings under S.9 only when the landlord wrote a letter to his tenant Shri Bomkesh Pal demanding payment of rent. Bomkesh stated that the letter came on 2.8.75. The tenant examined himself and stated that he came to know about the proceedings under S.9 only when the landlord wrote a letter to his tenant Shri Bomkesh Pal demanding payment of rent. Bomkesh stated that the letter came on 2.8.75. Thereafter, he filed an application. It may be mentioned that Bomkesh was a very important witness. But the tenant has not examined him. The petitioner, however has examined one Swadesh Bala Dey, vegetable vendor who sells vegetable at the goli of the house of her landlord, namely, the thika tenant. It is her evidence that she did not see any person in 1976 to affix any notice on any door of the house. She however states that if any notice was affixed on any door it would not have escaped her notice. This evidence is far from convincing and simply because she did not see the process server affixing the notice it cannot be said that the notice was not served. On the other hand, the petitioner has examined the process server, who very clearly stated that on 18.4.75 he served the notice. He proves his report which is Ext.A. It is true that there is no signature of any witness on the report. But the process server states that none agreed to put his signature on the report. The petitioner has also examined his rent collector, who states that on several occasions in 1975, he went to collect rent, but he did not find the defendant there. This being the position, it cannot be said that the opposite party succeeded in establishing that the notice referred to in S.9 has not been properly published; The tenant, if he was aggrieved by the publication of the notice under sub-s. 2. could have taken steps under sub-s. (3). If it is the case of the tenant that he did not know about the publication of the notice then after having come to know about the publication of the notice he could challenge the order passed by the Thika Controller under S.9 by preferring an appeal under S.27 of the Act. Mr. Guha in this connection refers to a decision reported in 1978 CHN 181 (S.N. Guha Roy v. Sm. Pratima Rami Kundu). In this case, it has been held that' "S.9 requires the landlord to file the prescribed notice showing that he in tends to treat the holding as abandoned. Mr. Guha in this connection refers to a decision reported in 1978 CHN 181 (S.N. Guha Roy v. Sm. Pratima Rami Kundu). In this case, it has been held that' "S.9 requires the landlord to file the prescribed notice showing that he in tends to treat the holding as abandoned. The notice was duly filed and duly published as required under S. 9 read with rule 6 of the Rules framed under the Act. It is immaterial whether the landlord was aware of the address of the thika tenant or not. The section does not require the landlord to pursue his tenant and serve a notice upon him as is required in the case of service of a notice to quit upon a tenant. That being so, if the landlord fulfilled the requirement of S.9, it is enough for his purpose." Relying on this decision in the present case also I find that the provisions of S.9 have been fully complied with, Mr. Sarkar, learned advocate appearing on behalf of the opposite party contends that in view of the Calcutta Thika tenancy, (Stay of Proceeding) (Temporary Provisions) Act, 1978 the present proceeding should be stayed. Section 3 of the Act lays down that all applications for ejectment of thika tenants, all appeals from orders made on such applications and all proceedings in executions of orders for ejectment of thika tenants under the provisions of the Calcutta Thika Tenancy Act, 1949 which are pending at the date of commencement of this Act or which may be made, preferred or commenced after such date, but before the expiry of this Act, in respect of any land which is a "vacant land" within the meaning of the Urban Land (Ceiling and Regulations) Act, 1976, shall stayed for the period during which this Act is in force, In my opinion, S.3 of this Act has no application to the present case as the present proceeding is not one for ejectment of a thika tenant. I therefore find no merits in the application under S. 151. 5. In the result, the application succeeds and the Rule is made absolute. The order passed by the learned Thika Controller under S.151 of the Code is set aside and the order passed by the learned Thika Controller on 5th July, 1975 is restored. Let the records go down early. 5. In the result, the application succeeds and the Rule is made absolute. The order passed by the learned Thika Controller under S.151 of the Code is set aside and the order passed by the learned Thika Controller on 5th July, 1975 is restored. Let the records go down early. There will be no order for costs in this Rule. Rule made absolute.