Sections 77 and 78 CPC: Letter of Request and Foreign Court Commissions

Sections 77 and 78 of the Code of Civil Procedure, 1908 deal with international and cross-jurisdictional assistance for examination of witnesses. Section 77 permits a Court, instead of issuing a commission, to issue a letter of request for a witness residing outside India. Section 78 governs the execution and return of certain commissions issued by or at the instance of Courts specified in that provision.

Current central law: Sections 77 and 78 continue to form part of the Code of Civil Procedure, 1908. Their operation should be read with the relevant rules in Order XXVI of the First Schedule, including provisions dealing with commissions connected with foreign Courts.

Section 77 CPC - Letter of Request

In lieu of issuing a commission the Court may issue a letter of request to examine a witness residing at any place not within India.

Meaning and effect of Section 77

  • The Court may use a letter of request instead of issuing a commission.
  • The provision applies where the witness resides at a place outside India.
  • The detailed procedure should be read with the applicable rules governing commissions and examination of witnesses.

Section 78 CPC - 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

(c) Courts of any State or country outside India.

Meaning and effect of Section 78

  • Section 78 extends the CPC mechanism for execution and return of witness-examination commissions to the categories of Courts expressly listed in the section.
  • The provision applies subject to prescribed conditions and limitations.
  • It covers specified Courts outside the ordinary territorial application of the Code, certain Courts established or continued by Central Government authority outside India, and Courts of States or countries outside India.
  • The phrase used in the current central text is "issued by or at the instance of."

Related Procedure Under Order XXVI CPC

The procedural framework for commissions is contained principally in Order XXVI of the First Schedule. In matters involving foreign Courts, the relevant rules concerning examination of witnesses and commissions issued at the instance of foreign Courts should be checked together with Sections 77 and 78.

Official CPC Reference

For the authoritative central text, see the Code of Civil Procedure, 1908 on India Code.