Order XXVI Rule 7 CPC - Return of Commission with Depositions of Witnesses
Order 26 Rule 7 of the Code of Civil Procedure, 1908 governs the return of an executed commission, the evidence recorded under it, and their inclusion in the suit record, subject to Rule 8.
Statutory provision: Order XXVI Rule 7
Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the return thereto and the evidence taken under it shall (subject to the provisions of rule 8) form part of the record of the suit.
Editorial note: Obvious typographical errors in the uploaded transcription have been corrected for readability. Consult the official India Code text of the CPC for the authoritative published wording and any applicable amendments.
Meaning and scope of Rule 7
A commission is an authority issued by a civil court for a specified procedural task, such as recording the evidence of a witness. A deposition is the testimony recorded from a witness during examination. Rule 7 sets out what happens after the commissioned examination is completed.
- Completion: The commission must first be duly executed in accordance with the court's directions.
- Return: The executed commission and recorded evidence are ordinarily sent back to the court that issued it.
- Different destination: If the issuing order specifies another court or mode of return, that direction must be followed.
- Suit record: The commission, its return and the evidence taken become part of the case record, subject to the conditions in Rule 8.
Difference between forming part of the record and being read as evidence
Rule 7 does not make every deposition automatically usable as evidence. Under Order XXVI Rule 8, evidence taken on commission generally cannot be read against a party without that party's consent unless a statutory exception applies.
Rule 8(a) covers circumstances such as the witness being outside the court's jurisdiction, deceased, unable to attend because of sickness or infirmity, exempt from personal appearance, or a government employee whose attendance would harm public service. Rule 8(b) also gives the court discretion to authorize the evidence to be read in the circumstances stated in that provision.
Practical procedure after witness examination
- The commissioner or receiving court records the testimony according to the commission and applicable procedural rules.
- The completed commission, return and deposition are forwarded as directed in the original order.
- The issuing court places the returned materials on the suit record.
- When a party seeks to rely on the deposition, the court considers Rule 8 and any relevant objections before permitting it to be read in evidence.
Related provisions
Order XXVI Rule 6: Requires a court receiving a commission to examine, or cause the examination of, the witness. Order XXVI Rule 8: Regulates when depositions taken on commission may be read in evidence. Order XXVI Rule 18B: Requires the issuing court to fix a date for the commission's return and limits extensions to cases of sufficient cause supported by recorded reasons.
Frequently asked questions
Where is an executed commission returned?
Ordinarily to the court that issued it, unless the order directs otherwise.
Does a deposition automatically become admissible when returned?
No. Inclusion in the case record under Rule 7 is expressly subject to Rule 8's requirements for reading the deposition in evidence.
Can the court direct the commission to be returned elsewhere?
Yes. Rule 7 recognizes alternative directions in the order issuing the commission.
Official legal reference
India Code - Code of Civil Procedure, 1908 (Act 5 of 1908) and the official consolidated CPC PDF. State amendments and applicable High Court rules should also be checked for the court concerned.