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R U L E 60
REPLEVIN
Under the previous rule, it is entitled "delivery of personal property". But its popular
term is replevin.
Q: What is the main action here?
A: The main action is the recovery of possession of personal property.
At the commencement of the main action at any time before answer, the plaintiff may
pray for an order, for the delivery of the property to him, meaning, he will ask for the
issuance of a writ of seizure or writ of replevin. So, replevin is a term that could be
used to describe the main action or to describe a provisional remedy.
This was stated by the SC in the recent case of
BA Finance Corp. vs. CA
253 S 102
(July 05, 1996)
According to Justice Vitug, replevin as understood is both a
form of principal remedy and a provisional remedy. It may
refer either to the action itself, that is to regain the
possession of personal property or to the provisional
remedy to disallow the plaintiff to retain the thing during
the
pendency of the action. The action is possessory
nature, being to determine who has the right to possession.
Replevin is usually described as a mixed action, being partly in
rem and personam. In rem in so far as the recovery of specific
personal property is concerned and in personam as regard to
damages involved because damages are also sought in the
pleadings.
Section 1. Application - 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.
Q: When do you seek this provisional remedy?
A: Under section 1, at the commencement of the action or at anytime before answer.
So very limited. It is shorter. If you look at the old Rules, it provides for at the
commencement of the action and at anytime before JUDGMENT and in the new rules,
it's anytime before answer.
Again, the main action is recovery of personal property.
Example: Somebody borrowed your personal property. Ayaw isauli. The procedure is to
file a case to recover possession of the personal property and in the meantime that the
case is going on, you can apply for a provisional remedy of replevin.
Section 2. Affidavit and bond.-The applicant must show by his
own affidavit or that of some other person who personally knows
the facts:
a. That the applicant is the owner of the property claimed,
particularly describing it, or is entitled to the possession
thereof;
b. That the property is wrongfully detained by the adverse party,
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Property of
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2)
The applicant must post
property.
REPLEVIN
That is to guarantee the return to the adverse party in case the return is adjudged
and for damages caused by the unlawful replevin. What is the basis of the
jurisdiction of the court.
Q: Does the MTC have jurisdiction to entertain replevin case ?
A: Yes. If the value of the property is P100,000.00 and below and in Metro Manila,
P200,000.00.
Take note: The basis of the jurisdiction is the value of the property and NOT the
value of the bond.
Section 3. Order.- Upon the filing of such affidavit and
approval of the bond, the court shall issue an order and the
corresponding writ of replevin describing the personal property
alleged to be wrongfully detained and requiring the sheriff
forthwith to take such property into his custody.
The order is issued without hearing. It is based only on the allegation in the pleading
because of the time element.
Section 4. Duty of the sheriff.- Upon receiving such order, the
sheriff must serve a copy thereof on the adverse party, together
with a copy of the application, affidavit and bond, and must
forthwith take the property, if it be in the possession of the
adverse party, or his agent, and retain it in his custody. If the
property or any part thereof be concealed in a building or
enclosure, the sheriff must demand its delivery, and if it be not
delivered, he must cause the building or enclosure to be broken
open and take the property into his possession. After the sheriff
has taken possession of the property as herein provided, he
must keep it in a secure place and shall be responsible for its
delivery to the property entitled thereto upon receiving his fees
and necessary expenses for taking and keeping the same.
Q: What happens after the court issues the writ if replevin ?
A: Section 4. The sheriff has to take possession of the property from the defendant and
it will in the sheriff for 5 days.
Section 5. Return of property.- If the adverse party objects to the
sufficiency of the applicant's bond, or of the surety or sureties
thereon, he cannot immediately require the return of the property,
but if he does not so object, he may, at any time before the delivery
of the property to the applicant, require the return thereof, by
filing with the court where the action is pending a bond executed
to the applicant, in double the value of the property as stated in
the applicant's affidavit for the delivery thereof to the applicant,
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Difference between Replevin and Attachment under Rule 57 or Injunction under Rule
58:
vin
Replevin
The court said in La Tondena, in other words the law does not allow the defendant to
file a motion to discharge or destroy the writ of seizure or delivery on the grounds of
insufficiency of the complaint or on the grounds relied upon therefore and thereby put
at issue the matter of title or right of possession over the specific chattel subject of the
replevin. The policy apparently being that said matter should be ventilated and
determined only at the trial on the merits. Therefore, the defendant cannot file a
motion to dissolve the writ of replevin on the ground that the plaintiff has no right.
In the case of
Aravest Industrial Philippines vs. CA
216 S 602
HELD: The requirement in Section 5 & 6 that there must be a counterbond assumes that the replevin bond validly filed. So, if there is a void
replevin bond, there is no obligation for the defendant to put up a
counter-bond. " The requirement of posting a counter-bond to acquire
re-possession of the chattel subject of the writ of replevin presupposes a
valid writ of replevin." The assumption is that the writ of replevin is
valid.
Take note: If the defendant puts up a counter-bond, he is saying that the writ of replevin
filed by the plaintiff is valid.
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Property of
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