Commissions Issued by Foreign Courts
Section 77 let an Indian court send out a request. Section 78 is the inbound mirror: when a court outside India (or beyond this Code’s reach) needs a witness here examined, India’s own execution-and-return machinery applies to that commission.
How to read Section 78
Comity runs both ways. Just as India asks foreign courts for help (§ 77), it honours their requests in return. Section 78 simply borrows the existing rules — those for executing and returning commissions — and applies them to commissions coming from three kinds of outside courts.
It makes the provisions on execution & return of commissions (for examining witnesses) apply to commissions issued by or at the instance of certain outside courts.
(a) Indian courts where this Code does not extend; (b) courts set up by the Central Government outside India; (c) courts of any State or country outside India.
Only “subject to conditions and limitations as may be prescribed” (Order XXVI). The present section was substituted in 1951.
The bare Act
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—
1. The present § 78 was substituted by Act 2 of 1951, s. 11 (w.e.f. 1-4-1951) for the original section — recasting the categories of issuing courts after the Constitution. The procedure is in Order XXVI.
Key terms decoded
An order from a court outside the issuing Indian court’s own system, asking that a witness here be examined — the inbound counterpart of § 77.
The existing machinery (chiefly the § 76 / Order XXVI rules) for carrying out a commission and sending it back with the evidence. § 78 makes that machinery serve incoming commissions too.
The key operative words: § 78 does not invent a new procedure — it extends the familiar one to the three classes of outside courts.
Whether the outside court issues the commission itself, or it is issued on its request — both are covered.
Territory within India where the CPC itself does not run — courts there are treated, for this purpose, like outside courts whose commissions India will execute.
Courts established or continued by the Central Government beyond India’s borders — e.g. an Indian-authority court abroad.
Genuine foreign courts — the courts of any other country; the core case of inbound comity.
The accommodation is not unconditional — it operates within the rules (Order XXVI) that prescribe how such commissions are received and executed.
The principle that nations’ courts assist one another by mutual courtesy. § 77 is India asking; § 78 is India answering.
The picture — three outside courts, one familiar machinery
Whatever the source — a non-Code Indian court, a Central-Government court abroad, or a wholly foreign court — the incoming commission is run through India’s ordinary execution-and-return machinery. No new procedure; the familiar one, pointed inward.
Section 78, clause by clause
The chapeau does four things in one breath — sets a limit, names the existing machinery, extends it, and says whose commissions qualify — then lists the three classes of issuing court (a)–(c).
Connected provisions
Section 78 closes the Commissions chapter (§§ 75–78): the power (§ 75), routing within India (§ 76), the outbound request (§ 77), and — here — the inbound answer. Procedure throughout: Order XXVI.