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RULES 57 61

PROVISIONAL REMEDIES
1.

Preliminary Attachment (Rule 57)

Preliminary Attachment a provisional remedy, incidental and ancillary to a principal action or proceeding, by which the property of an
adverse party is taken into legal custody as a security for the satisfaction of any judgment that may be recovered by the plaintiff or any
proper party, the granting of which lies within the sound discretion of the judge taking cognizance of the principal case upon whose
existence it depends.
Purpose of attachment to secure a contingent lien on defendants property until plaintiff can obtain a judgment and have such property
applied to its satisfaction or to make provision for unsecured debts in cases where the means of satisfaction thereof are liable to be
removed beyond the jurisdiction or improperly disposed of or concealed or placed beyond the reach of creditors.
Kinds of attachment
1.)

Preliminary attachment given at the beginning or during the pendency of the action, or before judgment becomes final

2.)

Final attachment given upon termination of the case to enforce or satisfy a final and executory judgment

Attachment generally refers to corporeal property in the possession of a party. Garnishment is a form of attachment which refers to
money, stocks, credits or other incorporeal property which belongs to the party but is in the possession or under the control of 3rd
persons.
Attachment property is attached at any time before entry of judgment. Execution property is levied after entry of judgment.
Instances upon which attachment may issue
1.)

In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action
arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines
with intent to defraud his creditors;

1.)

In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an
officer or a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other
person in a fiduciary capacity, or for a willful violation of duty;

1.)

In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or
any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an
authorized person;

1.)

In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the
action is brought, or in the performance thereof;

1.)

In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his
creditors; or

1.)

In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by
publication.

2.

Preliminary Injunction (Rule 58)

Kinds of injunction
1.)
2.)

Prohibitory
Preliminary
Final
Mandatory an order which requires the performance of a particular act or acts
Preliminary
final

Preliminary Injunction an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party
or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in
which case it shall be known as a preliminary mandatory injunction.
Grounds for issuance of preliminary injunction
1.)

The applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or
continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited period or
perpetually;

2.)

The commission, continuance or non-performance of the act or acts complained of during the litigation would probably work
injustice to the applicant; or

3.)

A party, court, agency or a person is doing, threatening or is attempting to do, or is procuring or suffering to be done, some act
or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to
render the judgment ineffectual.

Requisites for preliminary injunction or temporary restraining order


1.)

Verified application showing facts entitling the applicant to the relief demanded

2.)

Bond conditioned on paying the party enjoined all damages which he may sustain by reason of the injunction or temporary
restraining order if the court should finally decide that the applicant was not entitled thereto

3.)

GR: hearing. Exception: court may issue TRO if plaintiff may suffer grave or irreparable injury

When prior or contemporaneous service of summons is not required


1.)

Summons could not be served personally or by substituted service despite diligent efforts

2.)

The adverse party is a resident of the Philippines temporarily absent

3.)

The adverse party is a nonresident of the Philippines

Stages of injunction
72 hour TRO
1.)
If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury
2.)
Issued by executive judge of a multiple-sala court or the presiding judge of a single-sala court
3.)
Issued ex parte, without hearing
4.)
Thereafter must
1.)
Serve summons and other documents
2.)
Conduct summary hearing to determine whether the TRO shall be extended to 20 days until the application for
preliminary injunction can be heard

20-day TRO
1.)

If it shall appear from the facts shown by affidavits or by the verified application that great or irreparable injury would result
to the applicant before the matter can be heard on notice

2.)

If application is included in initiatory pleading


1.)

Notice of raffle shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy
of the complaint or initiatory pleading and the applicants affidavit and bond, upon the adverse party in the
Philippines.

2.)

Raffled only after notice to and in the presence of the adverse party or the person to be enjoined
1.)

Issued with summary hearing (to determine whether the applicant will suffer great or irreparable injury)
within 24 hours after sheriffs return of service and/or records are received by the branch selected by
raffle

1.)

Within 20-day period court must

Order said party or person to show cause why the injunction should not be granted
Determine whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order.
Including the original 72 hours, total effectivity of TRO shall
1.)

Not exceed 20 days, if issued by a RTC or MTC

2.)

Not exceed 60 days, if issued by the CA or a member thereof

3.)

Until further orders, if issued by the SC

TRO is automatically vacated upon expiration of the period and without granting of preliminary injunction
Effectivity is not extendible without need of any judicial declaration to that effect
No court shall have authority to extend or renew the same on the same ground for which it was issued.
Preliminary injunction
1.)

Hearing and prior notice to the party sought to be enjoined

2.)

If application is included in initiatory pleading


1.)

Notice of raffle shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy
of the complaint or initiatory pleading and the applicants affidavit and bond, upon the adverse party in the
Philippines.

1.)

Raffled only after notice to and in the presence of the adverse party or the person to be enjoined

Applicant posts a bond


Final injunction
*

Note that a bond is required only in preliminary injunctions, but is not required in TROs.

After lapse of the 20 day TRO, the court can still grant a preliminary injunction.

Note that irreparable injury is always a requisite in TROs. But in the 72 hour TRO, grave injustice must also be shown. In the
20 day TRO, the ground is great or irreparable injury.

Paras vs. Roura, 163 SCRA 1 (1988) without a preliminary injunction, a TRO issued by the CA expires without necessity of
court action.

Note that TROs issued by the SC are effected until further orders.

Grounds for objection to, or for motion of dissolution of, injunction or restraining order
*
*
*
*
*

Upon showing of insufficiency of the application


Other grounds upon affidavit of the party or person enjoined
Appears after hearing that irreparable damage to the party or person enjoined will be caused while the applicant can be fully
compensated for such damages as he may suffer, and the party enjoined files a counter bond
Insufficiency of the bond
Insufficiency of the surety or sureties

3.

Receivership (Rule 59)

Receiver an indifferent person between the parties to a case, appointed by the court to receive and preserve the property or fund in
litigation pendente lite, when it does not seem reasonable to the court that either party should hold it
Purpose of receivership to preserve, administer, or dispose of property in litigation, pendente lite
Instances when receivership may be granted
1.)

the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or
proceeding, and that such property or fund is in danger of being lost, or materially injured unless a receiver be appointed to
administer and preserve it

2.)

in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or
materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so
stipulated in the contract of mortgage;

3.)

After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to
aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in
satisfaction of the judgment, or otherwise to carry the judgment into effect;

4.)

Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of
preserving, administering, or disposing of the property in litigation.

General Powers of a Receiver


1.)

to bring and defend, in such capacity, actions in his own name

2.)

to take and keep possession of the property in controversy

3.)

to receive rents

4.)

to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver

5.)

to compound for and compromise the same

6.)

to make transfer

7.)

to pay outstanding debts

8.)

to divide the money and other property that shall remain among the persons legally entitled to receive the same

9.)

to do such acts respecting the property as the court may authorize.

However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the
action.
No action may be filed by or against a receiver without leave of the court which appointed him.

4.

Replevin (Rule 60)

A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before
answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided

5.

Support Pendente Lite (Rule 61)

Provisions of the Family Code:


Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for
some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school,
or to and from place of work. (290a)
Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth
in the preceding article:
1.)

The spouses

2.)

Legitimate ascendants and descendants

3.)

Parents and their legitimate children and the legitimate and illegitimate children of the latter

4.)

Parents and their illegitimate children and the legitimate and illegitimate children of the latter

5.)

Legitimate brothers and sisters, whether of full or half-blood

Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the
full extent set forth in Article 194, except only when the need for support of the brother or sister, being of age, is due to a cause imputable
to the claimants fault or negligence.