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Section 78: Commissions issued by foreign Courts

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Act 1908
Section 77 All 158 Sections of Code of Civil Procedure Section 79
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Execution Sec 38

Legal Commentary & Landmark Judgments: Section 78

Section 78 governs the execution of commissions issued by foreign courts to examine witnesses residing in India, subject to central notification.

  • Foreign Commissions Execution: 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 courts situate outside India.
  • Central Government Reciprocity: Applicable where the foreign court is established or continued by the Central Government or notified by official gazette.
  • Execution by Domestic Court: Executed by the competent High Court or District Court within whose jurisdiction the witness resides.
Key Landmark Precedents:
  • Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corp., (2009) 8 SCC 646: The Supreme Court noted that Section 78 provides reciprocal international assistance, honoring foreign judicial commissions in India.
  • Bar Council of India v. A.K. Balaji, (2018) 5 SCC 379: Affirmed international comity principles in executing foreign judicial requests under Section 78.
Courtroom Practice & Strategic Litigation Guidance:

Foreign parties seeking witness depositions in India must have their home court transmit a formal commission under Section 78 through the Indian Ministry of Law and Justice.

Section 77 All 158 Sections of Code of Civil Procedure Section 79