JUDGMENT Ahmed, J. : The petitioner herein has challenged an order dated 7.4.89 passed by the learned Assistant Dist. Judge, 3rd Court at Howrah in title Suit No. 75 of 77. The impugned order was an order on an application u/s. C.P.C filed by the petitioner. By the said petition the petitioner challenged the preliminary decree which was passed on 23.784. He appeared in the suit. The learned Court found that the date of hearing was known to him. But the petitioner pleaded that as he was ill during the period. He could not appear. The learned Judge noted that he was curious that the defendant took no steps for setting aside the ex parte decree for a period of four years. Accordingly, the leaned Judge dismissed the application. 2. To appreciate the point raised brief facts of the case may be recalled, disputed properties belonged to deceased Dr. Dhirendranath Roy, the husband of Plaintiff No.4 and father of Plaintiff Nos. 1, 2, 3 and Defendant Nos. 1 & 3 and father-in-law of Defendant No.5. Dhirendra had two wives, the first wife Nirmala died leaving behind Defendant No. 1 and his brother Pratap Chandra Roy, husband of Defendant No. 5. Plaintiff Nos.1, 2 and 3 are sons of Dhirendra by second wife, Plaintiff No.4. Dhirendra died leaving these heirs and each of them inherited 1/8th shares in the disputed property. On death of Lakshmi Moni the second wife the property again devolved on his son and according to the plaint case each of them had 1/7th shares in the property in dispute. At the instance of Lakshmi Moni executed a Deed of Gift in favour of Defendant No.1 and late Pratap in respect of some of "A" schedule properties in their favour. Those properties are mentioned in a schedule "C" to the plaint. Accordingly, the defendant denied title of the plaintiff in respect of the properties covered by the deed of gift. 3. It appears that a compromise petition was filed by the plaintiff and some of the defendants. The said compromise petition was disposed of by an order dated 23.7.84. The compromise was filed by the plaintiffs and Defendant Nos. 2 and 3. The learned Judge ordered that the suit be decreed ex parte as against Defendant No.1 and disposed of as against others in terms of solenama which do form a part of the decree. The said compromise petition was disposed of by an order dated 23.7.84. The compromise was filed by the plaintiffs and Defendant Nos. 2 and 3. The learned Judge ordered that the suit be decreed ex parte as against Defendant No.1 and disposed of as against others in terms of solenama which do form a part of the decree. It appears from the petition or compromise that the parties thereto agreed for declaration that each of the plaintiff and defendants as 1/7th shares in the suit property. It also stipulated that the preliminary decree dated 10.4.76 passed in title Suit No. 55 of 74 shall be declared as not binding upon the Plaintiffs and Defendant No.3. It was also prayed that the suit will be decreed against Defendant Nos. 2 and 3 in terms of the compromise and Defendant No.1 as ex parte without cost. 4. Mr. Banerjee, learned Advocate appearing for the petitioner submitted that the order decreeing the suit in preliminary form is a valid order and the decree based thereon is also void. He submitted that it does not appear that before decreeing the suit ex parte against Defendant No. 1, the present petitioner the court had any material before him to decree the suit in preliminary form. It is not disputed that the plaintiffs in the suit did not examine any witness in the suit nor placed any material in support of the plaint case. Inspite of it the learned Judge decreed the suit in preliminary form. According to Mr. Banerjee since there is no basis for decreeing the suit the decree must be treated as a void decree and has no force at all. Accordingly, it cannot be challenged in any collaterial proceedings but in the instant case an application under section 151 was filed drawing the attention of the court that the order passed by the court was a mistake and since it is a mistake by the court itself made a prayer for setting aside the said order and decree. We have already noted that the learned Judge dismissed the application on the ground that it was a belated application. 5. Mr. Mukherjee, learned Advocate appearing for the plaintiff/opposite parties submitted that the decree was drawn up on 23.7.84 Bnd application under section 151 was filed on 19.8.88. We have already noted that the learned Judge dismissed the application on the ground that it was a belated application. 5. Mr. Mukherjee, learned Advocate appearing for the plaintiff/opposite parties submitted that the decree was drawn up on 23.7.84 Bnd application under section 151 was filed on 19.8.88. As the petitioner was aware of the ex parte decree this cannot be filed after a lapse of four years. It is also submitted that the order impugned can at best be termed as an irregularity. Mr. Mukherjee added that even if it is an illegality the defect cannot be removed on an application under section 151 after lapse of four years. Mr. Mukherjee also submitted that it is not correct to say that there was no material in the records on the basis of which the suit was decreed. According to him admission by a co-owner binds the other co-owner. Relying on (1) 1954 Supreme Court 340, Mr. Mukherjee submitted that in terms of section 18 of the Indian Evidence Act the admission of Defendant Nos. 2 and 3 who are co-owners with the petitioner is binding on the petitioner himself. Accordingly, the learned Assistant District Judge was justified in decreeing the suit on the basis of the admission made by the other co-owners. On this score Mr. Mukherjee relied on the authority of (2) 20 CWN 1217. Another contention was raised by Mr. Mukherjee was that since it is an ex parte decree the court itself has provided relief by filing an application under Order 9 Rule 3 or by preferring on appeal against the said order. Accordingly, no relief on an application under section 151 can be granted as the relief sought for is provided by other provisions of the court. 6. Mr. Roy Chowdhury appearing for the other opposite parties submitted that the motive of the petitioner is oblique. There is no doubt that he was aware of the ex parte decree and slept over the matters for four years even though the learned Advocate Commissioner acted to his knowledge and he also prevented the Commissioner from entering into the property. The Commissioner has ultimately submitted his report. Accordingly, Mr. Roy Chowdhury submits that no relief can be granted on an application under section 151 C. P. C. 7. Mr. Mukherjee placed his reliance on a Single Bench decision reported in (3) AIR 1985 Delhi 248. The Commissioner has ultimately submitted his report. Accordingly, Mr. Roy Chowdhury submits that no relief can be granted on an application under section 151 C. P. C. 7. Mr. Mukherjee placed his reliance on a Single Bench decision reported in (3) AIR 1985 Delhi 248. The court was of the view that an order for eviction based on a compromise is not void but good and enforceable if the tenant while entering into the compromise submits on record the existing of facts either proved or admitted which will entitle the landlord to an order of eviction on anyone of the grounds of eviction under the Act. An order of eviction passed on consent of parties is not necessarily void if the jurisdictional fact namely the existence of one or more of the conditions contemplated by the Rent Act are shown to have existed when the court made the order. It would appear that the court was of the view that the presence of a ground contemplated by Rent Act for eviction of a tenant must be present to enable the court to exercise jurisdiction in passing a decree for eviction. The presence of anyone of those grounds is a jurisdictional facts which gives jurisdiction to the court to pass a decree. Mr. Mukherjee then relied on a decision reported in (4) 65 CWN 1064. A Division Bench of this Court held that there may be extraordinary cases where the application under sec. 151 may be justified even though there may be an alternative remedy. One of such exceptional cases may be where the court itself had committed such mistake or such omission as may be termed as an abuse of the process of the court. In such a case the court is bound to rectify its mistake according to maxim 'actus curiae nominen gravabit'. Mr. Banerjee on this authority submits that the present case is also an extra ordinary one even though there may be certain provisions under Order 9 Rule 13 or remedy may also be available by preferring an appeal even then in the extraordinary circumstances of a case like this application under section 151 should be treated as maintainable. Mr. Banerjee further relied on a decision reported in (5) AIR 1981 Cal 338 . Mr. Banerjee further relied on a decision reported in (5) AIR 1981 Cal 338 . A Single Judge of this court held that the learned Sub-ordinate Judge pointed out that the execution case was dismissed for default in ignorance of the fact of the case and as soon as that mistake was brought to the court's notice the court acted suo moto and vacated the order. Such order was correctly passed because none should be prejudiced by a mistake made by the court. Mr. Banerjee has also relied on a Division Bench decision of this court reported in (6) AIR 1979 Cal 338 . The Division Bench held that if a litigant is made to suffer on account of default of the court, the court will not be justified in refusing him to grant relief of on technical grounds. In that case according to the court the party was misled by a wrong valuation of suit in final decree and filed appeal against it which was dismissed for non-prosecution. The court held that it could be restored under the inherent powers without going into the question of limitation. 8. Mr. Mukherjee appearing for the plaintiff/opposite parties placed a decision reported in (7) AIR 1935 Oudh 358. The court held that a decree in terms of compromise against persons who are expart no question of want of jurisdiction of court to pass decree arise. The court further held 'where the case is not one of the court passing a decree against certain persons on the basis of a compromise to which they were not parties but merely one of a decree being passed in terms of the compromise against the persons, proceedings against whom were ex parte no question of want of jurisdiction or of the decree being a nullity arise. The defect is no more than one of the irregular exercise or improper assumption of jurisdiction. The persons may have their remedy by means of a proper proceedings against the irregularity complained of but they cannot in the circumstances treat the decree as a nullity.' This observation was made by a Full Bench of the court on the facts that a final decree was drown up ex parte without giving notice to the petitioners. The Court noted that they were not entitled to any notice and also noted that the decree was passed on the preliminary decree already passed. The Court noted that they were not entitled to any notice and also noted that the decree was passed on the preliminary decree already passed. On these facts the court made the observation. No question of prejudice arise in the facts of this case. 9. In terms of section 18 of the Indian Evidence Act statements made by a person from whom the parties to the suit have derived their interest in the subject-matter of the suit are admissions and if they are made during the continuance of the interest of the person making the statements. Relying on this provision of law Mr. Mukherjee submitted that the compromise petition itself is an admission by a co-sharer and as such a material in the suit ; and the court can rely on this material and pass a decree ex parte. It may be noted that it may be an admission by a co-sharer which is admissible in evidence and only bind the maker of the admission. In the facts of the case it will appear that the Defendant No. 1 the present petitioner made out a case denying title in respect of some of the properties. The admission by a co-sharer adverse to the interest of the petitioner cannot bind him namely the petitioner under section 18 of the Indian Evidence Act. 10. As it noted by the Supreme Court in AIR 1954 SC 340 that it is a fundamental principal well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject-matter of the suit strikes at the very authority of the court to pass any decree and such a decree cannot be cured even by the consent of the parties. 11. Let us now examine the facts of the case whether the decree passed ex parte against the petitioner is a nullity because the court lacked a jurisdiction decree the suit as there was no material in support of the plaintiff's case before the learned Judge. 11. Let us now examine the facts of the case whether the decree passed ex parte against the petitioner is a nullity because the court lacked a jurisdiction decree the suit as there was no material in support of the plaintiff's case before the learned Judge. It will appear that the suit was fixed for peremptory bearing but as a compromise application was filed the suit was fixed for disposal of the compromise application. It will appear that the issues were framed for determination of the controversy raised in the suit. Even if a preliminary decree is required to be passed there must be materials to come to a decision on the controversy that arose in the suit. The learned Judge did not look into the matter at all. Accordingly, the learned Judge lacked jurisdiction in decreeing the suit ex parte in the absence of any material in support of the plaintiff's case. In our considered view the order impugned is not a proper order. The learned Judge ought to have allowed the application and set aside the order of ex parte decree passed in 1984 and ought to have been given liberty to both the parties to adduce evidence and thereafter dispose of the suit in accordance with law. As we are of tile view that the decree passed in the case is a nullity and is a mistake committed by the court there will be no question of limitation with regard to filing of the application for setting aside that order and as in our view this is an extraordinary case relief should not be barred to the petitioner only on the technical ground that he could have got the relief by initiating other proceedings as contemplated by C.P.C. In this view of the matter we allow the application set aside the impugned order and also set aside the Order No. 118 dated 23.7.84. The learned Judge is directed to dispose of the suit in accordance with law within a period of six months from the date of communication of the order. There will be no order as to costs. Das, J. : I agree.