Judgment 1. A preliminary objection regarding the validity of the enquiry held by the learned Registrar of this Court in pursuance of an order dated 18-1-1971 passed by a learned single Judge and acceptance, of the enquiry report has been raised on behalf of the appellant. It is necessary to decide the question before the appeal itself can be taken up for hearing. 2. This appeal was originally filed by one Mostt. Phule Kuer. She, however, died even before the appeal was placed for admission under Order 41, Rule 11 of the Code. A petition for substitution on behalf of Gyani Devi claiming herself to be the only heir of Phule Kuer was filed within the period of limitation. As there was no appearance on behalf of the respondents at that stage, when the substitution matter was put up, it was allowed by order dated 29-8-4968 and Gyani Devi was substituted in place of the appellant. The appeal was admitted on 20-9-1968. The respondents thereafter filed a petition and a counter-affidavit under Order 22, Rule 5 read, with Sec.151 of the Code disputing the claim of the substituted appellant, Gyani Devi, as according to the counter-affidavit she was not the daughter of Mahatab Mahto and sister of Banke Mahto as claimed by her in the substitution petition. This controversy being raised, the learned single Judge by order dated 18-1-1971 had referred the matter to the Registrar and directed him to hold an enquiry as contemplated tinder Order 22, Rule 5 of the Code after giving a reasonable notice to the parties: 3. In pursuance of the said direction, the Registrar of this Court held an enquiry and after examining a large number of witnesses produced on behalf of both parties, submitted his enquiry report dated 27-5-1971 for necessary orders. By order dated 18-4-1972 when the enquiry matter was placed for consideration before the learned Judge, it was ordered that it should be considered at the time of hearing of the appeal. 4. As already stated above, when the case was taken up by me for hearing, Mr. Jagdish Sahay teamed counsel appearing on behalf of the appellant raised a preliminary objection that the enquiry held by the Registrar in pursuance of the order dated 18-1-1971 was without jurisdiction and could not be looked into. 4. As already stated above, when the case was taken up by me for hearing, Mr. Jagdish Sahay teamed counsel appearing on behalf of the appellant raised a preliminary objection that the enquiry held by the Registrar in pursuance of the order dated 18-1-1971 was without jurisdiction and could not be looked into. As the matter was of some importance, learned counsel for the both parties were given sufficient hearing and I propose to decide the preliminary objection. Order 22, Rule 5 reads as follows :- "Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court." Rule 5 contemplates that if a controversy arises as to whether any person is or is not the legal representative of a deceased plaintiff or a defendant, such question has to be determined by the Court. It was submitted on behalf of the appellant that the enquiry has to be made by the Court itself hearing the case or the appeal which is a judicial function of the Court and the Registrar could not have been directed to hold the enquiry as this Court has not framed any such rule so far in this regard. The objection taken seems to have great force. Under clause 38 of the Letters Patent of the Patna High Court, this Court may make rules for delegating to the Registrar or other officials of this Court any judicial, quasi-judicial and non-judicial duties. Such a power is also contemplated under Sec.128 (i) of the Code which is in similar terms as that of Cl. 38. In pursuance of these powers, this Court has framed various rules. Rule 13 under Chapter II of the Patna High Court Rules enumerates all the duties and powers assigned to the Registrar of this Court but none of the clauses enumerating the duties and function authorises the Registrar to determine the question covered by Rule 5 of Order 22 of the Code. There is also no rule authorising the Registrar the power to summon any witness or to take evidence in any matter. It cannot be doubted that the power to summon a witness and to take evidence is a judicial function and must be exercised by a court or an authority which is specially empowered in this behalf. There is also no rule authorising the Registrar the power to summon any witness or to take evidence in any matter. It cannot be doubted that the power to summon a witness and to take evidence is a judicial function and must be exercised by a court or an authority which is specially empowered in this behalf. In various States as well as Central Legislations wherever such a power was deemed necessary to be exercised by any authority or a persona designate, specific provision has been made in this regard. It is not necessary to refer to such provisions in the statutes as it is undisputed and the instances are innumerable. It may, however, be mentioned that such a practice namely, getting such and other kind of enquiries done by the Registrar is prevalent in this Court from a long time and to my knowledge no such objection has ever been taken. Even in this case no objection was raised by the appellant when the order in question was passed op 18-1-1971, rather the appellant also participated in the enquiry before the Registrar. 5 But that by itself could not be of any assistance to the respondents if it is not supported by any authority or procedure. There is only one decision of this Court which was cited at the Bar and that is the case of Mt. Chandmani V/s. Kartik Singh, (AIR 1922 Pat 197 (1)). In this case the question arose as to whether the evidence in a matter of Order 22, Rule 5 could be recorded by a court subordinate to the Court hearing the case. A Division Beach held that the evidence could be taken either by the Bench itself or it could direct for taking the evidence before the trial court. It was, however, observed that the most convenient course was to direct that the evidence be taken before the trial court where it would be convenient to the parties as well as the witnesses concerned. With reference to the word Court the learned Judges have dearly held that it means the Court before whom the question arises, i.e. the trial court if the question arises at the trial stage and the appellate court if the appellate Court, is seized with the case. With reference to the word Court the learned Judges have dearly held that it means the Court before whom the question arises, i.e. the trial court if the question arises at the trial stage and the appellate court if the appellate Court, is seized with the case. It has also been clearly laid down in the said authority that there is no authority for the Court delegating powers conferred under this Rule and, therefore, the trial Court could not be called upon to report upon and determine the question, which necessarily was a question for the determination by this Court alone. To the same effect is a decision of the Madras High Court in the case of Narayana Bharatigal V/s. Ittili Amma, (AIR 1918 Mad 1103). In the Madras case a question was also raised as to the source of the power of appellate court to ask the subordinate court to record the evidence and the Bench in answering the question referred to the provision under Sec.107 (1) (d) of the Code and came to the conclusion that by virtue of the said provision it was open to the Court to direct the lower court to take evidence and submit the same to the High Court. 6. Mr. J. C. Sinha, learned counsel for the respondents in view of these provisions and authorities had ultimately to concede that the order dated 18-1-1971 passed by this Court, as it stands, by which direction was issued to the Registrar to hold the enquiry, could not be sustained. He, however, contended that there could not be a bar for the Registrar to take evidence in the matter as he was a Court Subordinate to this Court and that evidence can be perused by the Bench hearing the appeal to decide the question. It is difficult to accept this part of the argument of Mr. Sinha as well. Sec.3 of the Code provides the subordinate of the various courts and the district court is the court subordinate to the High Court. Similar is the position according to the provisions of the Bengal, Agra and Assam Civil Courts Act. Sec.3 of this Act also lays down classes of Civil Courts and there are only four classes of Courts mentioned. There is nothing like a Court of Registrar. Similar is the position according to the provisions of the Bengal, Agra and Assam Civil Courts Act. Sec.3 of this Act also lays down classes of Civil Courts and there are only four classes of Courts mentioned. There is nothing like a Court of Registrar. It could not be doubted that the Registrar of this Court has to discharge the administrative functions primarily except those judicial or quasi-judicial functions which are expressly delegated to him by virtue of the rules framed by this Court in pursuance of the Letters Patent or Sec.128 of the Code. The Registrar of this Court is not a court as such. At the best while performing any of the duties as authorised to be done by him by virtue of the rules framed by this Court in a judicial matter, he can be said to be a court. 7. I would, accordingly, accept the preliminary objection raised by Mr. Jagdish Sahay and bold that the enquiry held and the report submitted by the Registrar in pursuance of the order dated 18-1-1971 is invalid and without jurisdiction. I also hold that for the same reasons even the evidence recorded by him cannot be considered by this Court. Following the procedure indicated in the said two authorities referred to above the best course, in my view, would be to direct the trial court to record the evidence upon the question as to who is the proper legal representative of the deceased appellant Mostt. Phule Kuer widow of Banke Mahto after giving reasonable notices to the parties concerned and then to return the same to this Court as early as possible and not later than 30th of July, 1974.