Code of Civil Procedure, 1908 | Section 78

Section 78 CPC - Commissions Issued by Foreign Courts

Section 78 of the Code of Civil Procedure, 1908 explains when Indian procedural rules for executing and returning commissions to examine witnesses extend to commissions issued by, or at the instance of, specified courts outside the ordinary territorial application of the Code. The detailed procedure for foreign civil courts is found in Order XXVI, Rules 19 to 22.

Text of Section 78 CPC

78. Commissions issued by foreign Courts. Subject to such conditions and limitations as may be prescribed the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by or at the instance of-

(a) Courts situate in any part of India to which the provisions of this Code do not extend; or

(b) Courts established or continued by the authority of the Central Government outside India; or

Meaning and scope of Section 78

A commission is a judicial direction authorising a designated court or commissioner to perform an act such as recording witness testimony. Under Section 78, the focus is on the execution and return of commissions for examination of witnesses, not on automatic recognition or enforcement of a foreign judgment.

The expression "as may be prescribed" refers to the procedural conditions and limitations under the Code and applicable rules. Section 78 covers three classes of originating courts: courts in areas of India where the Code does not extend; courts established or continued under Central Government authority outside India; and courts of foreign states or countries.

Order XXVI Rules 19 to 22: Foreign court witness commissions

Rule 19 - When the High Court may issue a commission

A High Court may issue a commission where it is satisfied that a court in a foreign country seeks evidence for a civil proceeding and the witness resides within the limits of the High Court's appellate jurisdiction. The rule recognises proof through a qualifying consular certificate or a foreign court's letter of request transmitted through the Central Government or produced by a party, as specified in Rule 19(2).

Rule 20 - Who may apply

An application may be made by a party to the foreign proceeding or by a State Government law officer acting under instructions from the State Government.

Rule 21 - Who may execute the commission

The High Court may issue the commission to a court having territorial jurisdiction where the witness resides. Where the witness resides within the High Court's ordinary original civil jurisdiction, the High Court may appoint a suitable person to execute it.

Rule 22 - Execution, return and transmission

Rule 22 applies specified procedural safeguards from Order XXVI, including relevant provisions concerning the examination of witnesses, expenses, powers of the commissioner, appearance of parties and the time for return. After execution, the commission and recorded evidence are returned to the High Court for forwarding to the Central Government, together with the letter of request, for transmission to the foreign court.

Practical procedure for a foreign civil court request

Identify the foreign civil proceeding and the witness whose evidence is required in India.
Establish the witness's residence and the appropriate High Court's jurisdiction.
Prepare the foreign court's letter of request or other evidence contemplated by Rule 19(2), with supporting case details and proposed questions where appropriate.
Make the application through a person authorised by Rule 20 and comply with applicable High Court filing and translation requirements.
Follow the High Court's directions on the commissioner, witness attendance, costs and evidence recording.
Return the executed commission and evidence through the prescribed channel under Rule 22.

Important: A foreign court's request does not itself compel an Indian witness to appear. The competent Indian court must act under the applicable statutory procedure. Local High Court rules, treaties and governmental transmission requirements should be checked for the particular country and proceeding.

Section 76 CPC addresses commissions sent to a court in another Indian State for examination of a person. Section 77 CPC permits an Indian court to issue a letter of request for examination of a witness residing outside India. Section 78 CPC concerns commissions issued by or at the instance of the categories of courts described in that section, including foreign courts.

Official statutory reference

Read the Code of Civil Procedure, 1908 on India Code (official PDF), particularly Section 78 and Order XXVI, Rules 19 to 22. The official text and any applicable amendments or local court rules should be checked for a specific case.