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Provisional Remedies are temporary, auxiliary

and ancillary remedies available to a litigant for


the protection and preservation of his rights while
the main action is pending. (Riano, Civil
Procedure, 2009 Ed.)
Writs and processes which are not main
actions and they presuppose the existence of
a principal action.
The word Provisional Remedy is suggestive. It
is something temporary.
Provisional Remedies are remedies which are
temporary and is defined by the Supreme
Court as remedies which parties may resort
for the preservation or protection of their
rights and interests and for no other purpose,
during the pendency of the principal action.
So these are the remedies resorted to just to
preserve the rights of the parties while the
case is pending.
The FOLLOWING are the provisional remedies
provided for in the Rules of Court:
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin or delivery of private property (Rule
60)
5. Support Pendente Lite (Rule 61)
These provisional remedies are also available in
criminal cases (Rule 127), and in some special
civil actions and special proceedings.
Purpose of Provisional Remedies:
Provisional remedies are resorted to by litigants
for any of the following reasons:
1. To preserve or protect their rights or interest
while the main action is pending;
2. To secure the judgment;
3. To preserve the status quo; or
4. To preserve the subject matter of the action.
OTHER PROVISIONAL REMEDIES
A. Issued by a family court
1. Temporary Custody of Minor Children
2. Order allowing Visitation Rights of Parents
B. Interim Reliefs in a Petition for a Writ of
Amparo
1. Temporary Protection Order
2. Inspection Order
3. Production Order
4. Witness Protection Order
Note: PD 1818 prohibits the issuance of
injunctive writs not only against government
entities but also against any person or entity
involved in the execution, implementation, and
operation of government infrastructure projects.

Inferior courts can grant all appropriate


provisional remedies, provided the main case
is within its jurisdiction (Sec. 33 [1] BP 129)
RULE 57
PRELIMINARY ATTACHMENT

Preliminary attachment is a provisional


remedy issued upon order of the court where an
action is pending to be levied upon the property
of the defendant so that it may be held as
security for the satisfaction of whatever judgment
may be rendered in the case (Davao Light and
Power, Inc. vs. CA, 204 SCRA 343).
Section
1.
Grounds
upon
which
attachment
may
issue.

At
the

commencement of the action or at any


time before entry of judgment, a plaintif
or any proper party may have the
property of the adverse party attached
as security for the satisfaction of any
judgment that may be recovered in the
following cases:
(a) 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 quasidelict against a party who is about to
depart from the Philippines which intent
to defraud his creditors;
(b) In an action for money or property
embezzled or fraudulently misapplied or
converted to his own use by a public
officer, or an officer of a corporation, or
an attorney, factor, broker agent, or
clerk, in the course of his employment as
such, or by other person in a fiduciary
capacity, or for a willful violation of duty;
(c) 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;
(d) 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;
(e) 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
(f) 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. (1a)
The proper party may have the property of the
adverse party attached at the commencement of
the action or at any time before entry of
judgment.
When issued: (REPoGReS)
1. In actions for Recovery of a specified sum of
money or damages, except moral and
exemplary, on a cause of action arising from
law, contract, quasi-contract, delict or quasidelict against a party about to depart from the
Philippines with intent to defraud his
creditors;
Cases:
K.O. GLASS CONST. CO. vs. VALENZUELA, 116
SCRA 563 - mere allegation that the defendant is
a foreigner is insufficient. There being no
showing that the defendants are about to depart
from the Philippines with intent to defraud their
creditor, or that they are non-resident aliens, the
attachment of their properties is not
justified.
GENERAL vs. DE VENECIA, 78 Phil. 780 - On the
question of validity of the attachment, "the
GENERAL RULE is that, unless the statute
expressly so provides, the remedy by
attachment is not available in respect to a
demand which is not due and payable, and
if an attachment is issued upon such a
demand without statutory authority it is
void."

It must be observed that under our rules


governing the matter the person seeking a
preliminary attachment must show that "a
sufficient cause of action exists" and that
the amount due him is as much as the sum
for which the order of attachment is
granted" (sec. 3, Rule 59). Inasmuch as the
commitment of Luis F. General has not as yet
become demandable, there existed no cause of
action against him, and the complaint should
have been dismissed and the attachment lifted.
INSULAR SAVINGS BANK vs. CA, 460 SCRA 122
writ of preliminary attachment cannot be issued
for moral and exemplary and other unliquidated
or contingent claims.
2.

In actions for money or property Embezzled or


fraudulently misapplied or converted to his
own use by a public officer, or an officer of a
corp., or an attorney, factor, broker, agent or
clerk, in the course of his Hence, a sheriff has
no authority to levy on execution upon the
property of any person other than that of the
judgment debtor. If he does so, the writ of
execution affords him no justification, for such
act is not in obedience to the mandate of the
writ. As long as the sheriff confines his acts to
the authority of the process, he is not liable,
but all of his acts which are not justified by
the writ are without authority of law. This is so
because if an execution against one man
would excuse the sheriff for taking the
property of another, every citizen would be at
his mercy and none could call his estate his
own.

BALANTES vs. OCAMPO III, 242 SCRA 327 The


rule is that when a writ is placed in the hands of a
sheriff, it is his duty, in the absence of
instructions, to proceed with reasonable celerity
and promptness to execute it according to its
mandate. He may not apply his discretion as to
whether to execute it or not.
ELIPE vs. FABRE, 241 SCRA 249 Indeed, as
clearly stated in the Manual for Clerks of Court, a
sheriff, to whom a valid writ or process is
delivered to be levied upon a property
within his jurisdiction, is liable to the
person in whose favor the process or writ
runs if he fails to make a levy upon
property owned by the judgment debtor
within his jurisdiction and by reason thereof
the judgment creditor is injured. It is
omission not dependent upon intentional wrong
or negligent omission to seize property of
judgment debtor.
NBI vs. TULIAO, MARCH 24, 1997
Clearly, respondent's act of leaving the passenger
jeep in the possession and control of the creditor
did not satisfy the foregoing requirements of the
Rules; neither did it conform to the plainly worded
RTC order. The note in the receipt that imposed
on Ignacio the obligation to produce the same
whenever required by the court was no
compliance either, because it did not establish
that the property was in respondent sheriff's
substantial presence and possession. Respondent
fell short of his obligation to take and safely keep
the attached property "in his capacity." He cannot
feign ignorance of this duty as he himself
correctly cited an early decision of this Court
explaining a sheriff's duty in attachment, as
follows:

. . . A verbal declaration of seizure or


service of a writ of attachment is not
sufficient. There must be an actual taking
of possession and placing of the attached
property under the control of the officer
or someone representing him. (Hollister vs.
Goodale, 8 Conn., 332, 21 Am. Dec., 674; Jones
vs. Howard, 99 Ga., 451, 59 Am. St. Rep., 231.)

ROQUE vs. COURT OF APPEALS, 93 SCRA 540


Constructive possession should be held sufficient
where
actual
possession
is
not
feasible, particularly when it was followed up by
the actual seizure of the property as soon as that
could possibly be effected. In case of a vessel,
levy is constructively made by the registration of
the same with the Philippine Coast Guard.
SUMMIT TRADING vs. AVENDANO, 135 SCRA 397
It is true that Saquilayan is not among the
persons mentioned in Section 13. However, she,
being under the control of Summit Trading, has
not explained what she has done with the
summons and complaint. The logical assumption
is that she delivered it to her boss, the president
of Summit Trading. As already stated, she
received a copy of the decision and Summit
Trading became aware of it.
Under the facts of this case, Saquilayan, being
the secretary of the president (whose contact
with the outside world is normally through his
secretary), may be regarded as an "agent" within
the meaning of section 13. Hence summons was
validly served upon Summit Trading.
CHEMPHIL EXPORT & IMPORT vs. CA, 251 SCRA
286 A secretary's major function is to assist his
or her superior. He/she is in effect an extension of
the latter. Obviously, as such, one of her duties is
to receive letters and notices for and in behalf of
her superior, as in the case at bench. The notice
of garnishment was addressed to and was
actually received by Chemphil's president
through his secretary who formally received it for
him. Thus, in one case, we ruled that the
secretary of the president may be considered an
"agent" of the corporation and held that service
of summons on him is binding on the corporation.
Note: Summit and Chemphil rulings have been
amended by the 1997 Rules of Civil Procedure.
Section 11 of Rule 14 provides:
Sec. 11. Service upon domestic private
juridical entity. When the defendant is a
corporation,
partnership
or
association
organized under the laws of the Philippines
with a juridical personality, service may be
made on the president, managing partner,
general
manager,
corporate
secretary,
treasurer, or in-house counsel.

TAYABAS LAND CO. vs. SHARRUF, 41 PHIL. 382


A judgment for a sum of money is, as to the party
entitled to payment, a credit; and as to the party
who ought to pay the money, a debt.
Furthermore, the interest of the creditor in such a
judgment is clearly property, though not capable
of manual delivery. Debts, credits, and other
property not capable of manual delivery are to be
dealt with in a different manner from that
prescribed in case of the execution of tangible
property; for while tangible property is proceeded
with by seizure and sale under execution, debts
and credits are to be attached by the citation of
the debtor.
The proceeding thus indicated as proper, in order
to subject a debt or credit is known in American
civil procedure as the process of garnishment;

and it may be truly said that garnishment is one


of the simplest processes, and the least involved
in technicalities, of any proceeding known to the
law. It consists in the citation of some stranger to
the litigation, who is debtor to one of the parties
to the action. By this means such debtor stranger
becomes a forced intervenor; and the court,
having acquired jurisdiction over his person by
means of the citation, requires him to pay his
debt, not to his former creditor, but to the new
creditor, who is creditor in the main litigation. It is
merely a case of involuntary novation by the
substitution of one creditor for another. Upon
principle the remedy is a species of
attachment or execution for reaching any
property pertaining to a judgment debtor
which may be found owing to such debtor
by a third person.
Section 8. Effect of attachment of debts,
credits and all other similar personal
property. All persons having in their
possession or under their control any
credits
or
other
similar
personal
property belonging to the party against
whom attachment is issued, or owing
any debts to him, at the time of service
upon them of the copy of the writ of
attachment and notice as provided in the
last preceding section, shall be liable to
the applicant for the amount of such
credits, debts or other similar personal
property,
until
the
attachment
is
discharged, or any judgment recovered
by him is satisfied, unless such property
is delivered or transferred, or such debts
are paid, to the clerk, sherif, or other
proper officer of the court issuing the
attachment.

It is not necessary to serve summons upon the


garnishee in order that the trial court may acquire
jurisdiction. All that is necessary is the service upon
him of the writ of garnishment