JUDGMENT - (1) This is a revision application under the provisions of Section 115 of the Code of Civil Procedure against the order dated 15th September 1966 of the learned Civil Judge, Junior Division Saswad, Poona, ordering the petitioner to permit a sample of his blood to be taken by the Civil Surgeon, Poona, for blood grouping test and his opinion as to whether the petitioner is or is not the son of the respondent.

(2) The facts leading to this case are that the petitioner filed a suit in the Court of the learned Civil Judge, Junior Division, Saswad, Poona for partition and possession of a one-third share in the alleged ancestral property of joint Hindu family consisting of the petitioner the respondent and the original defendant No. 2 who is his mother and the wife of the respondent. The case of the petitioner was that the respondent is his father and the defendant No. 2 who is not a party to this revision application, is his mother and that he was entitled to a one-third share in the property belonging to the Joint Hindu family consisting of the parties to the suit. In the written statement the respondent denied the plaintiffs claim. He stated that the petitioner was not his son and as such he had no right, title or interest in the property and was not entitled to ask for partition and separate possession of his share. He admitted his marriage with the defendant No. 2, but stated that he had no sexual relations with her and alleged that the defendant No. 2 had committed adultery. Although originally in the written statement the respondent had not stated that he was impotent, during the course of the trial he alleged that he was impotent. He had himself examined by the Civil Surgeon of Poona. But, according to the report dated 14th February 1966 of the Civil Surgeon, there was no signs of impotency. The respondent thereafter made an application on 21st April 1966 praying that the petitioner be directed to appear before the Civil Surgeon for a blood grouping test. The learned Judge made a very short order which reads as under:

"The plaintiff and the defendant No. 1 should appear before the Civil Surgeon, Poona, for their blood examination. The Civil Surgeon is requested to give his opinion whether the plaintiff is or is not the son of the defendant No. 1, after taking the sample of blood from their persons. The defendant No. 1 to deposit Rs. 50 into the Court in the first instance towards this examination."

(3) The petitioner objects to a sample of his blood being taken and has come in revision against the said order. The question for determination, therefore, is whether in law the petitioner can be compelled to give a sample of his blood for analysis or blood grouping test.

(4) I am not aware of any provision of law and none has been cited before me, whether in the Code of Civil Procedure, Indian Evidence Act, or elsewhere under which such application can be made or granted or which compels a person to give a sample of his blood for analysis or blood grouping test or even warrants an adverse inference to be drawn against him if he refuses to give such sample.

(5) Similar question arose in a similar contest in Madras in the case of P. Venkateshwarlu v. P. Subbayya, reported in AIR 1951 Mad 910 (1), on an application under S. 151 C.P.C. which has been described as the last resort of the procedurally destitute, and Mr. Justice Raghava Rao held that Section 151 has been introduced in the Code to give effect to the inherent powers of Court. Such powers can only be exercised ex debito justitue and not on the mere volition of Courts and that where the defendant applied for direction from Court to the plaintiff a minor child and his mother to appear in person before the Court in order to enable a medical expert to take sample of their blood and the plaintiff and his mother are unwilling to offer their blood for the test to recognise the paternity of the child, there is no procedure either in the Code of Civil Procedure or the Indian Ev

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