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Preliminary Attachment
Preliminary Injunction
Receivership
Replevin
Support pendente lite
are writ and processes available during the pendency of an action to preserve and protect certain rights and interests
pending the result of the final judgment in the case.
When may it be availed?
May be sought at any stage of the action but before
final judgment.
-do-
Replevin
Support
pendente lite
Preliminary
Attachment
Preliminary
Injunction
Receivership
RULE 57
PRELIMINARY ATTACHMENT
What Are Its Purposes?
1. To seize the property of the debtor in advance of the final judgment and to hold it for purposes of satisfying the said
judgment
2. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in
instances where summons cannot be effected.
What Are The Requirements?
1. Affidavit which must contain all the allegations required and the circumstances on why it should be granted.
2. Bond it is to answer for the damages and costs, which may be adjudged, to the adverse party.
the defendant can file a counter bond at the courts discretion but the counter bond must not be lower than the
bond filed by the petitioner. Its purpose is to satisfy the judgment.
Note: No notice to the adverse party or hearing of the application is required.
When Shall It Be Discharged?
1. The debtor has posted a counter bond.
2. The attachment was improperly issued, i.e., when there is no ground for attachment, or the affidavit and/or bond filed
are defective or insufficient.
3. The attachment is excessive.
4. The property attached is exempt from execution thus, also exempt from attachment.
5. The judgment is against the attaching party.
RULE 58
PRELIMINARY INJUNCTION
What is Preliminary Injunction?
A judicial writ, process or proceedings whereby a party is ordered to do or refrain from doing a particular act.
Prior notice is indispensable for the issuance of a writ of Preliminary Injunction(PI) and a Temporary Restraining
Order(TRO).
o Exception:
If the matter is of extreme urgency and the applicant may suffer injustice and injury, the court may issue an ex
parte TRO effective for only seventy-two(72) hours from issuance, renewable after summary hearing for a period
not exceeding twenty(20) hours which includes the original 72 hours if previously granted.
a.
b.
It is a Special Civil Action whereby a person who has property in his possession or an obligation to perform, either
wholly or partially, who claims no interest in the subject, goes to the court and ask that conflicting claimants to that property
or obligation be required to litigate among themselves in order to determine finally who is entitled to the same.
RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE COMELEC AND COA
Time for Filing the Petition
Within thirty (30) days from notice of the judgment or final order sought to be reviewed.
If the motion for reconsideration is denied, the aggrieved party has the remaining period to file the petition, but not less
than five(5) days in any event, reckoned from notice of denial.
Mode of Review
To be filed exclusively to the Supreme Court.
Petition for Review under rule 65.
[Note: The filing of the petition shall not stay the execution of the judgments or final orders, unless ordered by the Supreme
Court.]
RULE 65
CERTIORARI, PROHIBITION, AND MANDAMUS
CERTIORARI
Requisites:
1. there must be a controversy
2. the respondent is a tribunal, board or an officer exercising judicial or quasi-judicial functions [discretionary acts].
3. the respondents acted:
a. without jurisdiction
b. in excess of jurisdiction
c. with grave abuse of discretion amounting to lack or excess of jurisdiction
4. there must be no appeal or other plain, speedy and adequate remedy.
EXCLUSIVE REMEDY OF APPEAL AND CERTIORARI
GENERAL RULE: If after judgment and the petition for certiorari is availed of instead of the remedy of appeal, the certiorari must
fail because it may not be resorted to as a substitute to appeal; in such a case appeal is deemed abandoned.
EXCEPTIONS: Even when appeal is available, a writ for execution may be allowed;
1. When the appeal does not constitute a speedy and adequate remedy.
2.
When judgment were issued either in excess of or without jurisdiction.
3. When for certain special considerations as public policy or public welfare.
4. When the judgment is patently void.
5. When the decision in the certiorari case will avoid future actions.
PROHIBITION
Requisites
1. there must be a controversy
2. the respondent is a tribunal, board or an officer exercising judicial, quasi-judicial [discretionary acts] or ministerial
functions.
3. the respondent acted:
a. without jurisdiction
b. in excess of jurisdiction
c. with grave abuse of discretion amounting to lack or excess of jurisdiction
4. there must be no appeal or other plain, speedy and adequate remedy.
MANDAMUS
Requisites
1. there must be a clear legal right or duty.
2. the act performed must be practical- within the powers of the respondent to perform such if issued and he can comply
with it or else the essence will be defeated.
3. the respondent must be exercising a ministerial duty.
4. the duty or act to be performed must be existing a correlative right will be denied if not performed by the
respondents.
5. there must be no appeal or other plain, speedy and adequate remedy.
NOTE: An ordinary action for certiorari, prohibition and mandamus are independent action thus:
1. does not interrupt the course of the principal action.
2. does not affect the running of the prescriptive period involved in the case.
3. does not stay the execution of the judgment, unless a TRO or a PI is issued.
EXHAUSTION OF ADMINISTRATIVE REMEDY
GENERAL RULE: a motion for reconsideration is a prerequisite before the filing of a petition for certiorari, prohibition or
mandamus. Its purpose is to give the court a quo the opportunity to correct itself.
EXCEPTIONS:
1. If the judgment or order is patently void.
2. If there is extreme urgency.
3. If the issue has been raised and promptly passed by the court.
4. If the issue is purely a question of law.
5. If for public purpose
RULE 66
QUO WARRANTO
What is Quo Warranto?
It is a special civil action to determine the right to the use or exercise of an office or a franchise, and to oust the holder from
its enjoyment if his claim is not well founded or if he has forfeited his right to enjoy the privilege.
Classification of a Quo Warranto proceedings.
1. Mandatory- brought by the Solicitor General or a public prosecutor when:
a. directed by the president, and
b. upon complaint or when he has reason to believe that it can be established by proof.
2. Discretionary- brought by the Solicitor General or a public prosecutor upon the request a person but there must be:
a. leave of court, and
b. indemnity bond
NOTE: The period for the filing of Quo Warranto proceedings is within one(1) year from the date the cause of action arose.
DISTINCTIONS
QUO WARRANTO
1. There is a usurpation of public office by another and
assumes office.
MANDAMUS
There is an ousting from office by another but does not assume
the office.
QUO WARRANTO
1. As to the basis:
The occupant of the office is disqualified from holding the
office because of ineligibility or disloyalty to the republic.
ELECTION CONTEST
2. As to the effect:
If the petitioner succeeds, the respondent will be ousted
and the petitioner will assume the office.
RULE 67
EXPROPRIATION
EMINENT DOMAIN is the right of the state to acquire private property for public use upon payment of just compensation.
EXPROPRIATION is the procedure to be observed in the exercise of the right of eminent domain in instances such as:
1. When the owner refuses to sell his property.
The remedy used for the satisfaction of any monetary obligation, which a person owes to another, by proceeding
against the property used to secure the obligation.
It purpose is to cut off the rights of the owner of the property mortgaged used to secure the obligation and all rights
acquired thereto.
NOTE:
Within the one(1) year period given to the mortgagor to redeem, the buyer may take possession of the property but must
pay a bond equivalent to the amount of a rent.
If there is deficiency judgment, the action may continue in the same proceedings except to non-resident defendants.
Effect if the Junior Encumbrancer is not pleaded:
1. his right is not affected because he is merely a necessary party not an indispensable party.
2. the remedy of the senior encumbrancer is to file independent actions to foreclose the right to redeem by requiring the
junior encumbrancer to pay the amount stated in the order of execution.
JUDICIAL FORECLOSURE
Requires court intervention
There is only an Equity of Redemption is the right of the
defendant mortgagor to extinguish the mortgage and retain
ownership of the property by paying the debt within 90-120 days
after the entry of judgment or even after the sale but before
confirmation.
Governed by Rule 68
EXTRAJUDICIAL FORECLOSURE
No court intervention necessary
There exist a Right of Redemption is the right of the
debtor, his successor in interest or any judicial
creditor or judgment creditor of the debtor or any
person having a lien on the property subsequent to
the mortgage or deed of trust under which the
property is sold to redeem the property within one(1)
year from the registration of the of the sheriffs
certificate of foreclosure sale.
Governed by sec.29-31 of Rule 39
RULE 69
PARTITION
What is Partition?
It is the process of dividing and assigning property owned in common among the various co-owners in proportion to
their respective interests in said property.
When can Partition be made?
GENERAL RULE: It can be made anytime and the right to demand partition is imprescriptible.
EXCEPTION: If the co-owner asserts adverse title to the property in which case the period of prescription runs from such time of
assertion of the adverse claim.
TWO(2) STAGES:
1. Determination of the Propriety of the Partition. Includes the question whether or not the property is owned in common or
whether or not all the co-owners are made parties. If the court find that there must be partition, the aggrieved party may
appeal the decision.
2. Actual Partitioning of the Subject Property.
The parties may agree on the partition by executing a Deed of Partition, where it will become final after the court
approves it. The aggrieved party may appeal the decision.
If the parties does come into an agreement as to how to partition the property, the case will be heard through trial by
commissioner.
NOTE: No partition of personal property.
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
FORCIBLE ENTRY
Possession of the land by the defendant is unlawful from the
beginning as he acquires it by Force, Intimidation, Strategy,
Threat or Stealth [FISTS]
No previous Demand is necessary.
The plaintiff must prove that he was in prior physical
possession of the premises until he was deprived.
The 1 year period is generally counted from the date of actual
entry on the land.
UNLAWFUL DETAINER
Possession is lawful but it becomes illegal because
of the termination of the right to the possession of the
property under his contract w/ the plaintiff.
Formal Demand is mandatory if the ground is nonpayment of rentals or failure to comply with the lease
contract
The plaintiff need not have been in prior physical
possession.
Period is counted from the date of last demand or
last letter of demand.
3. Penalty:
a. RTC- fine not exceeding P2,000 or imprisonment not exceeding
10 days or both.
b. MTC- fine not exceeding P200 or imprisonment not exceeding 1
day or both.
INDIRECT CONTEMPT
There must first be a hearing
a. Misbehavior of an officer of a court in the
performance of his official duties.
b. Disobedience or resistance to a lawful writ, order
or judgment.
c. Any abuse or any unlawful interference with the
proceedings not constituting direct contempt.
d. Any improper conduct tending to degrade the
administration of justice.
e. Assuming to be an attorney or an officer of the
court w/o authority.
f. Failure to obey a subpoena
g. Rescue, or attempted rescue of a person or
property in the custody of an officer.
a.
b.