The application out of which this Civil Revision Petition arises is one under section 151, Civil Procedure Code. The controversy between the parties to the original suit in which the application was filed is as to the legitimacy of the plaintiff which the defendant, the alleged father, is disputing. The suit is one for partition.

The defendant applied under section 151, Civil Procedure Code, for a direction from the Court to the plaintiff and his mother, his next friend, to appear in person before the Court in order to enable a medical expert to take samples of their blood. The learned Judge below has ordered the application in these terms:

“After hearing both the parties, it appears to me that it is necessary that the plaintiff should be first examined by the medical expert and he should give his, opinion to the Court whether it is safe to take some blood from him. For appearance of expert, plaintiff, his mother and the first defendant on 5th August, 1950.”

After this order the defendant served a notice on the pleader for the plaintiff in these terms:

“You are required to please state whether your client is prepared to give blood of her son, that is, the plaintiff, and her own, if the expert says that there is test to recognise the paternity of a disputed child and that there is no danger for the child if the blood is taken from the child. You. are required by this Honourable Court to file a memo. also giving the above particulars.” In answer to this notice the plaintiff’s pleader replied as follows:

“The High Court has ordered stay of all proceedings in pursuance of the order of the Court directing the plaintiff and his next friend to be in Court for examination. This question therefore cannot arise at this stage.”

Mr. Krishnamurthi in revision against the order of the Court on the defendant’s application aforesaid contends that there is no warrant in law for an application of this kind; he also says that there is no provision of law which compels his clients to offer any blood of theirs for the kind of test sought to be taken out by the defendant.

I am clear that in both these contentions the learned counsel is correct. Section 151, Civil Procedure Code, has been introduced into the Statute book to give effect to the inherent powers of Courts as expounded by Woodroffe, J., in Hukum Chand Bold v. Kamalan and Singh1. Such powers can only be exercised ex debito justitie and not on the mere invocation of parties or on the mere volition of Courts. There is no procedure either in the Civil Procedure Code or in the Indian Evidence Act which provides for a test of the kind sought to be taken by the defendant in the present case. It is said by Mr. Ramakrishna for the respondent before me that in England this sort of test is resorted to by Courts where the question of non-access in connection with an issue of legitimacy arises for consideration. My attention has been drawn by learned counsel to page 69 of Taylor’s Principles and Practice of Medical Jurisprudence, Volume 2, where it is stated thus:

“In Wilson v. Wilson, Lancet 1942 I. 570, evidence was given that the husband’s group was OM, that the wife’s was BM, and that the child’s was ABN. The Court held that the husband was not the father of the child, and granted a decree for nullity.”

It is also pointed out by learned counsel that in the text books on Medical Jurisprudence and Toxicology by Rai Bahadur Jaisingh P. Modi, (8th edition), at page 94, reference is made to a case decided by a Criminal Court at Mercara in June, 1941, in which the paternity and maternity of the child being under dispute the Court resorted to the results of the blood grouping test.

That may be. But I am not in any event satisfied that if the parties are unwilling to offer their blood for a test of this kind this Court can force them to do so. Mr. Krishnamurthi says that his clients are not prepared to offer their blood for such a test.

In these circumstances there was no power in the Court below to mak