POST JUDGMENT REMEDIES (Rules 3738, 4047, 52(1)

(3)

The decision or final order is contrary to

law (Sec. 1).

Remedies before a judgment becomes

final and executory

When to file
(a)

Motion for reconsideration (prohibited in

a case that falls under summary

procedure) (Rules 37, 52);

(1)

(b)

Motion for new trial (Rules 37, 53); and

within the period for taking an appeal. Hence,

(c)

Appeal (Rules 40, 41, 42, 43, 45)

it must be filed before the finality of the

A motion for new trial should be filed

judgment (Sec. 1). No motion for extension of

(2)

Remedies after judgment becomes final

and executory

time to file a motion for reconsideration shall

be allowed. In Distilleria Limtuaco vs. CA, 143
SCRA 92, it was said that the period for filing a
motion for new trial is within the period for
taking an appeal.

(a)

Petition for relief from judgment;

(b)

Action to annul a judgment;

(c)

Certiorari; and

(d)

Collateral attack of a judgment.

(2)

The period for appeal is within 15 days

after notice to the appellant of the judgment or

final order appealed from. Where a record on
appeal is required, the appellant shall file a
notice of appeal and a record on appeal within
30 days from notice of the judgment or final
order (Sec. 3, Rule 41). A record on appeal
shall be required only in special proceedings
and other cases of multiple or separate

Motion for New Trial or Reconsideration

appeals(Sec. 3, Rule 40).

(Rule 37)
Grounds for a motion for new trial

(1)

Fraud (extrinsic), accident, mistake (of

fact and not of law) or excusable negligence

which ordinary prudence could not have
guarded against and by reason of which such
aggrieved party has probably been impaired in
his rights;
(2)

Newly discovered evidence (Berry Rule),

which he could not, with reasonable diligence,

have discovered and produced at the trial, and
which if presented would probably alter the
result; and
(3)

Denial of the motion; effect

(1)

If the motion is denied, the movants has

a fresh period of fifteen days from receipt or

notice of the order denying or dismissing the
motion for reconsideration within which to file
a notice of appeal.
(2)

When the motion for new trial is denied

on the ground of fraud, accident, mistake of

fact or law, or excusable negligence, the
aggrieved party can no longer avail of the
remedy of petition for relief from
judgment (Francisco vs. Puno, 108 SCRA 427).

Award of excessive damages, or

insufficiency of the evidence to justify the

decision, or that the decision is against the

Grant of the motion; effect

law (Sec. 1, Rule 37).

(1)
Grounds for a motion for reconsideration

If a new trial be granted in accordance

with the provisions of the rules, the original

judgment shall be vacated or set aside, and
the action shall stand for trial de novo; but the

(1)

The damages awarded are excessive;

(2)

The evidence is insufficient to justify the

decision or final order;

recorded evidence taken upon the former trial

so far as the same is material and competent
to establish the issues, shall be used at the
new trial without retaking the same (Sec. 6).

The filing of the motion for new trial or

review from the RTC to the CA, Rule 43 on

reconsideration interrupts the period to

appeal from quasi-judicial agencies to the CA,

appeal (Sec. 2, Rule 40; Sec. 3, Rule 41).

and Rule 45 governing appeals by certiorari to

(2)

the SC. Accordingly, this rule was adopted to

If the court grants the motion (e.g., it

finds that excessive damages have been

standardize the appeal periods provided in the

awarded or that the judgment or final order is

Rules to afford fair opportunity to review the

contrary to the evidence or law), it may amend

case and, in the process, minimize errors of

such judgment or final order accordingly (Sec.

judgment. Obviously, the new 15 day period

3). The amended judgment is in the nature of

may be availed of only if either motion is filed;

a new judgment which supersedes the original

otherwise, the decision becomes final and

judgment. It is not a mere supplemental

executory after the lapse of the original appeal

decision which does not supplant the original

period provided in Rule 41 (Neypes vs. CA,

but only serves to add something to

GR 141524, Sept. 14, 2005).

it (Esquivel vs. Alegre, 172 SCRA 315). If the

The Neypes ruling shall not be applied where

court finds that a motion affects the issues of

no motion for new trial or motion for

the case as to only a part, or less than all of

reconsideration has been filed in which case

the matters in controversy, or only one, or less

the 15-day period shall run from notice of the

that all of the parties to it, the order may grant

judgment.

a reconsideration as to such issues if severable

without interfering with the judgment or final
order upon the rest (Sec. 7).

(2)

The fresh period rule does not refer to

the period within which to appeal from the

order denying the motion for new trial because
the order is not appealable under Sec. 9, Rule
37. The non-appealability of the order of denial

Remedy when motion is denied

is also confirmed by Sec. 1(a), Rule 41, which

provides that no appeal may be taken from an
order denying a motion for new trial or a

(1)

The party aggrieved should appeal the

motion for reconsideration.

judgment. This is so because a second motion

for reconsideration is expressly prohibited
under the Interim Rules (Sec. 5).
(2)

Appeals in General

An order denying a motion for

reconsideration or new trial is not appealable,

the remedy being an appeal from the judgment
or final order under Rule 38. The remedy from

(1)

an order denying a motion for new trial is not

process but a mere statutory privilege that has

The right to appeal is not part of due

to appeal from the order of denial. Again, the

to be exercised only in the manner and in

order is not appealable. The remedy is to

accordance with the provisions of law(Stolt-

appeal from the judgment or final order itself

Nielsen vs. NLRC, GR 147623, Dec. 13, 2005).

subject of the motion for new trial (Sec. 9, rule

The general rule is that the remedy to obtain

37).

reversal or modification of judgment on the

merits is appeal. This is true even if the error,
or one of the errors, ascribed to the court

Fresh 15-day period rule

rendering the judgment is its lack of

jurisdiction over the subject matter, or the
exercise of power in excess thereof, or grave

(1)

If the motion is denied, the movants has

a fresh period of 15 days from receipt or notice

of the order denying or dismissing the motion
for reconsideration within which to file a notice
to appeal. This new period becomes significant
if either a motion for reconsideration or a
motion for new trial has been filed but was
denied or dismissed. This fresh period rule
applies only to Rule 41 governing appeals from
the RTC but also to Rule 40 governing appeals
from MTC to RTC, Rule 42 on petitions for

abuse of discretion in the findings of facts or of

law set out in the decision (Association of
Integrated Security Force of Bislig-ALU vs. CA,
GR 140150, Aug. 22, 2005). An appeal may be
taken only from judgments or final orders that
completely dispose of the case (Sec. 1, Rule
41). An interlocutory order is not appealable
until after the rendition of the judgment on the
merits.
(2)

Certain rules on appeal:

(a)

No trial de novo anymore. The appellate

courts must decide the case on the basis of the

(d)

An order disallowing or dismissing an

appeal;

record, except when the proceedings were not

duly recorded as when there was absence of a

(e)

qualified stenographer (Sec. 22[d], BO 129;

judgment by consent, confession or

Rule 21[d], Interim RulesI);

compromise on the ground of fraud, mistake or

(b)

There can be no new parties;

(c)

There can be no change of theory (Naval

An order denying a motion to set aside a

duress, or any other ground vitiating consent;

(f)

An order of execution;

vs. CA, 483 SCRA 102);

(g)

A judgment or final order for or against

(d)

one or more of several parties or in separate

There can be no new matters (Ondap

vs. Aubga, 88 SCRA 610);

claims, counterclaims, cross-claims, and third-

(e)

party complaints, while the main case is

There can be amendments of pleadings

to conform to the evidence submitted before

pending, unless the court allows an appeal

the trial court (Dayao vs. Shell, 97 SCRA 407);

therefrom; and

(f)

The liability of solidarity defendant who

did not appeal is not affected by appeal of

(h)

solidarity debtor (Mun. of Orion vs. Concha, 50

prejudice (Sec. 1, Rule 41).

Phil. 679);

(2)

(g)

courts below cannot be allowed to be raised for

Appeal by guarantor does not inure to

An order dismissing and action without

A question that was never raised in the

the principal (Luzon Metal vs. Manila

the first time on appeal without offending basic

Underwriter, 29 SCRA 184);

rules of fair play, justice and due

(h)

In ejectment cases, the RTC cannot

process (Bank of Commerce vs. Serrano, 451

award to the appellant on his counterclaim

SCRA 484). For an appellate court to consider

more than the amount of damages beyond the

a legal question, it should have been raised in

jurisdiction of the MTC (Agustin vs. Bataclan,

the court below (PNOC vs. CA, 457 SCRA 32).

135 SCRA 342);

It would be unfair to the adverse party who

(i)

would have no opportunity to present evidence

The appellate court cannot dismiss the

appealed case for failure to prosecute because

in contra to the new theory, which it could

the case must be decided on the basis of the

have done had it been aware of it at the time

record (Rule 21, Interim Rules).

of the hearing before the trial court. it is true

that this rule admits of exceptions as in cases
of lack of jurisdiction, where the lower court

Judgments and final orders subject to

committed plain error, where there are

appeal

jurisprudential developments affecting the

issues, or when the issues raised present a
matter of public policy (Baluyot vs. Poblete, GR

(1)

An appeal may be taken only from

144435, Feb. 6, 2007).

judgments or final orders that completely

(3)

The rule under (2) however is only the

dispose of the case (Sec. 1, Rule 41). An

general rule because Sec. 8, Rule 51 precludes

interlocutory order is not appealable until after

its absolute application allowing as it does

the rendition of the judgment on the merits.

certain errors which even if not assigned may

be ruled upon by the appellate court. hence,
the court may consider an error not raised on

Matters not appealable

appeal provided the same falls within any of

the following categories:

(1)

No appeal may be taken from:

(a)

An order denying a motion for new trial

or a motion for reconsideration;

(b)

An order denying a petition for relief or

any similar motion seeking relief from

judgment;
(c)

An interlocutory order;

(a)

It is an error that affects the jurisdiction

over the subject matter;

(b)

It is an error that affects the validity of

the judgment appealed from;

(c)

It is an error which affects the

proceedings;

(d)

It is an error closely related to or

question of law or fact that has been raised in

dependent on an assigned error and properly

the court below and which is within the issues

argued in the brief; or

framed by the parties (Sec. 15, Rule 44).

(e)

It is a plain and clerical error.

Period of appeal

Remedy against judgments and orders

which are not appealable

(1)

Period of Ordinary Appeal under Rule 40.

An appeal may be taken (from MTC to RTC)

within 15 days after notice to the appellant of
(1)

In those instances where the judgment

the judgment or final order appealed from.

or final order is not appealable, the aggrieved

Where a record on appeal is required, the

party may file the appropriate special civil

appellant shall file a notice of appeal and a

action under Rule 65. Rule 65 refers to the

record on appeal within 30 days after notice of

special civil actions of certiorari, prohibition

the judgment or final order. The period of

and mandamus. Practically, it would be the

appeal shall be interrupted by a timely motion

special civil action of certiorari that would be

for new trial or reconsideration. No motion for

availed of under most circumstances. The most

extension of time to file a motion for new trial

potent remedy against those judgments and

or reconsideration shall be allowed (Sec. 2).

orders from which appeal cannot be taken is to

(2)

allege and prove that the same were issued

41). The appeal shall be taken within 15 days

without jurisdiction, with grave abuse of

from notice of the judgment or final order

discretion or in excess of jurisdiction, all

appealed from. Where a record on appeal is

amounting to lack of jurisdiction.

required, the appellants shall file a notice of

Period of Ordinary Appeal under Rule

appeal and a record on appeal within 30 days

from notice of the judgment or final order.
However, on appeal inhabeas corpus cases
Modes of appeal (Sec. 2, Rule 41)

shall be taken within 48 hours from notice of

the judgment or final order appealed from (AM

(a)

Ordinary appeal. The appeal to the CA

No. 01-1-03-SC, June 19, 2001). The period of

in cases decided by the RTC in the exercise of

appeal shall be interrupted by a timely motion

its original jurisdiction shall be taken by filing a

for new trial or reconsideration. No motion for

notice of appeal with the court which rendered

extension of time to file a motion for new trial

the judgment or final order appealed from and

or reconsideration shall be allowed(Sec. 3). If

serving a copy thereof upon the adverse party.

the record on appeal is not transmitted to the

No record on appeal shall be required except in

CA within 30 days after the perfection of

special proceedings and other cases of multiple

appeal, either party may file a motion with the

or separate appeals where the law or the Rules

trial court, with notice to the other, for the

so require. In such cases, the record on appeal

transmittal of such record or record on

shall be filed and served in like manner.

appeal (Sec. 3, Rule 44).

(b)

(3)

Petition for review. The appeal to the

Period of Petition for Review under Rule

CA in cases decided by the RTC in the exercise

42. The petition shall be filed and served within

of its appellate jurisdiction shall be by petition

15 days from notice of the decision sought to

for review in accordance with Rule 42.

be reviewed or of the denial of petitioners

(c)

motion for new trial or reconsideration filed in

Petition for review on certiorari. In

all cases where only questions of law are raised

due time after judgment. The court may grant

or involved, the appeal shall be to the SC by

and additional period of 15 days only provided

petition for review on certiorari in accordance

the extension is sought (a) upon proper

with Rule 45.

motion, and (b) there is payment of the full

amount of the docket and other lawful fees and

Issues to be raised on appeal

the deposit for costs before the expiration of

the reglementary period. No further extension
shall be granted except for the most

(1)

Whether or not the appellant has filed a

motion for new trial in the court below, he may

include in his assignment or errors any

compelling reason and in no case to exceed 15

days (Sec. 1).

(4)

Period of Appeal by Petition for Review

under Rule 43. The appeal shall be taken

Appeal by Certiorari
(Rule 45)

within 15 days from notice of the award,

Within 15 days from

receipt of judgment or
final order

judgment, final order or resolution, or from the

date of its last publication, if publication is
required by law for its effectivity, or of the

Perfection of appeals

denial of petitioners motion for new trial or

reconsideration duly filed in accordance with
the governing law of the court or agency a

(1)

quo. Only one (1) motion for reconsideration

RTC (Rule 40) and from the RTC to the CA

shall be allowed. Upon proper motion and the

(Rule 41).

payment of the full amount of the docket fee

before the expiration of the reglementary
period, the CA may grant an additional period
of 15 days only within which to file the petition
for review. No further extension shall be
granted except for the most compelling reason
and in no case to exceed 15 days (Sec. 4).
(5)

Period of Appeal by Petition for Review

on Certiorari under Rule 45. The appeal which

(a)

For Ordinary Appeals from MTC to the

A partys appeal by notice of appeal is

deemed perfected as to him upon the filing of

the notice of appeal in due time;
(b)

A partys appeal by record on appeal is

deemed perfected as to him with respect to the

subject matter thereof upon the approval of
the record on appeal filed in due time;

shall be in the form of a verified petition shall

(c)

be filed within 15 days from notice of the

loses jurisdiction only over the subject matter

judgment, final order or resolution appealed

thereof upon the approval of the records on

from, or within 15 days from notice of the

appeal filed in due time and the expiration of

denial of the petitioners motion for new trail or

the time to appeal of the other parties;

In appeals by notice of appeal, the court

motion for reconsideration filed in due time.

The Supreme Court may, for justifiable

(d)

reasons, grant an extension of 30 days only

the original record or the record on appeal, the

within which to file the petition provided, (a)

court may issue orders for the protection and

there is a motion for extension of time duly

preservation of the rights of the parties which

filed and served, (b) there is full payment of

do not involve any matter litigated by the

the docket and other lawful fees and the

appeal, approve compromises, permit appeals

deposit for costs, and (c) the motion is filed

of indigent litigants, order execution pending

and served and the payment is made before

appeal in accordance with Sec. 2, Rule 39, and

the expiration of the reglementary period (Sec.

allow withdrawal of the appeal (Sec. 9, Rule

2).

41).
(2)

In either case, prior to the transmittal of

Perfection of Appeal by Petition for

Review under Rule 42. (Sec.8)

MODE OF APPEAL

PERIOD OF APPEAL

Upon the timely filing of a petition for

review and the payment of the corresponding

Ordinary Appeal (Rules

40, 41)

a) Notice of Appeal

(a)

docket and other lawful fees, the appeal is

Within 15 days from
receipt of judgment or
final order

(Rule 40)

deemed perfected as to the petitioner. The RTC

loses jurisdiction over the case upon the
perfection of the appeals filed in due time and
the expiration of the time to appeal of the
other parties.
However, before the CA give due course to the

b) Record on Appeal

Within 30 days from

(Rule 41)

receipt of judgment or
final order

Petition for Review

(Rule 42)

Within 15 days from

receipt of judgment

Petition for Review

(Rule 43)

Within 15 days from

receipt of judgment or
final order or of last
publication

petition, the RTC may issue orders for the

protection and preservation of the rights of the
parties which do not involve any matter
litigated by the appeal, approve compromises,
permit appeals of indigent litigants, order
execution pending appeal in accordance with
Sec. 2, Rule 39, and allow withdrawal of the
appeal.

Within 15 da
motion for r

(b)

Except in civil cases decided under Rules

from receipt of appellants memorandum, the

on Summary Procedure, the appeal shall stay

appellee may file his memorandum. Failure of

the judgment or final order unless the CA, the

appellant to file a memorandum shall be a

law, or the Rules provide otherwise.

ground for dismissal of the appeal.

(c)

(c)

A partys appeal by notice of appeal is

Once the filing of the memorandum of

deemed perfected as to him upon the filing

the appellee, or the expiration of the period to

thereof in due time, and a partys appeal by

do so, the case shall be considered submitted

record on appeal is deemed perfected as to

for decision. The RTC shall decide the case on

him upon the approval thereof. In the first

the basis of the record of the proceedings had

case, the court loses jurisdiction over the

in the court of origin and such memoranda as

whole case upon the perfection of the appeals

are filed.

taken by the parties who have appealed and

the expiration of the time to appeal of the
other parties. In the second case, the court
loses jurisdiction over the subject matter
thereof upon the approval of all the records on

Appeal from judgments or final orders of

the RTC

appeal filed by the parties who have appealed

and the expiration of the time to appeal of the
other parties; and retains jurisdiction over the

(1)

Rule 41 applies to appeals from the

remaining subject matter not covered by the

judgment or final order of the RTC in the

appeal.

exercise of its original jurisdiction. This appeal

is called an ordinary appeal. Rule 42 applies
to an appeal from the judgment or final order
of the RTC to the CA in cases decided by the

Appeal from judgments or final orders of

RTC in the exercise of its appellate jurisdiction.

the MTC

(1)

An appeal from a judgment or final

order of a MTC may be taken to the RTC

Appeal from judgments or final orders of

the CA

exercising jurisdiction over the area to which

the former pertains. The title of the case shall
remain as it was in the court of origin, but the

(1)

party appealing the case shall be further

be taken to the SC where the petitions shall

referred to as the appellant and the adverse

raise only questions of law distinctly set forth.

party as the appellee (Sec. 1, Rule 40).

The general rule is that the SC shall not

(2)

entertain questions of fact, except in the

The appeal is taken by filing a notice of

Appeal by certiorari under Rule 45 shall

appeal with the court that rendered the

following cases:

judgment or final order appealed from. The

(a)

notice of appeal shall indicate the parties to

entirely on speculations, surmises and

the appeal, the judgment or final order or part

conjectures;

The conclusion of the CA is grounded

thereof appealed from, and state the material

dates showing the timeliness of the appeal. A

(b)

record on appeal shall be required only in

mistaken, absurd or impossible;

The inference made is manifestly

special proceedings and in other cases of

multiple or separate appeals(Sec. 3).
(3)

Procedure (Sec. 7):

(a)

Upon receipt of the complete record or

(c)

There is grave abuse of discretion;

(d)

The judgment is based on

misapprehension of facts;

the record on appeal, the clerk of court of the

RTC shall notify the parties of such fact.

(e)

The findings of facts are conflicting;

(b)

(f)

The CA in making its findings went

Within 15 days from such notice, the

appellant shall submit a memorandum which

beyond the issues of the case and the same is

shall briefly discuss the errors imputed to the

contrary to the admissions of both appellant

lower court, a copy of which shall be furnished

and appellee;

by him to the adverse party. Within 15 days

(g)

The findings are contrary to those of the

trial court;
Review of final orders of the COA
(h)

The facts set forth in the petition as well

as in the petitioners main and reply briefs are

not disputed by the respondents;
(i)

The findings of fact of the CA are

premised on the supposed absence of evidence

and contradicted by the evidence on record; or
(j)

Those filed under Writs of

(1)

A judgment, resolution or final order of

the Commission on Audit may be brought by

the aggrieved party to the SC
on certiorari under Rule 65 by filing the
petition within 30 days from notice (Sec. 3,
Rule 64).

amparo, habeas data, or kalikasan.

Review of final orders of the Ombudsman
Appeal from judgments or final orders of
the CTA
(1)

In administrative disciplinary cases, the

ruling of the Office of the Ombudsman are

(1)

Under Sec. 11 of RA 9282, no civil

proceeding involving matters arising under the

NIRC, the TCC or the Local Government Code
shall be maintained, except as herein provided,
until and unless an appeal has been previously
filed with the CTA and disposed of in
accordance with the provisions of the Act. A
party adversely affected by a resolution of a
Division of CTA on a motion for reconsideration
or new trial, may file a petition for review with
the CTA en banc.
(2)

Sec. 11 of RA 9282 further provides that

a party adversely affected by a decision or

ruling of the CTA en banc may file with the SC
a verified petition for review
on certiorari pursuant to Rule 45.

appealable to the Court of Appeals. Sec. 27 of

RA 6770 (Ombudsman Act of 1987) insofar as
it allowed a direct appeal to the SC was
declared unconstitutional in Fabian vs.
Desierto because the statute, being one which
increased the appellate jurisdiction of the SC
was enacted without the advice and
concurrence of the Court. Instead, appeals
from decisions of the Ombudsman in
administrative disciplinary actions should be
brought to the CA under Rule 43 (Gonzales vs.
Rosas, 423 SCRA 288).
(a)

The CA has jurisdiction over orders,

directives and decisions of the Office of the

Ombudsman in administrative cases only. If
cannot, therefore, review the orders, directives
or decisions of the OO in criminal or nonadministrative cases (Golangco vs. Fung, GR

Review of final judgments or final orders

of the COMELEC

147640-762, Oct. 12, 2006).

(b)

Although as a consequence

of Fabian appeals from the Ombudsman in

administrative cases are now cognizable by the
CA, nevertheless in cases in which it is alleged

(1)

A judgment, resolution or final order of

that the Ombudsman has acted with grave

the COMELEC may be brought by the

abuse of discretion amounting to lack or excess

aggrieved party to the SC on certiorari under

of jurisdiction amounting to lack or excess of

Rule 45 by filing the petition within 30 days

jurisdiction, a special civil action

from notice (Sec. 3, Rule 64).

of certiorari under Rule 65 may be filed with

the SC to set aside the Ombudsmans order or
resolution (Nava vs. NBI, 455 SCRA 377).

Review of final orders of the CSC

(2)

In criminal cases, the ruling of the

Ombudsman shall be elevated to the SC by

way of Rule 65. The SCs power to review over
(1)

A judgment, final order or resolution of

resolutions and orders of the Office of the

the Civil Service Commission may be taken to

Ombudsman is restricted on to determining

the CA under Rule 43. Note the difference

whether grave abuse of discretion has been

between the mode of appeal from a judgment

committed by it. The Court is not authorized to

of the CSC and the mode of appeal from the

correct every error or mistake of the Office of

judgments of other constitutional commissions.

the Ombudsman other than grave abuse of

discretion (Villanueva vs. Ople, GR 165125,

may be either a motion for new trial or appeal

Nov. 18, 2005). The remedy is not a petition

from an adverse decision of the trial court, and

for review on certiorari under Rule 45.

he was not prevented by fraud, accident,

mistake or excusable negligence from filing
such motion or taking such appeal, he cannot

Review of final orders of the NLRC

avail himself of this petition (Trust

International Paper Corp. vs. Pelaez, GR
164871, Aug. 22, 2006).

(1)

The remedy of a party aggrieved by the

decision of the National Labor Relations

Commission is to promptly move for the
reconsideration of the decision and if denied to
timely file a special civil action of certiorari
under Rule 45 within 60 days from notice of
the decision. In observance of the doctrine of
hierarchy of courts, the petition for certiorari
should be filed in the CA (St. Martin Funeral
Homes vs. NLRC, GR 130866, Sept. 16, 1998).

(2)

Under Sec. 5, Rule 38, the court in

which the petition is filed, may grant

suchpreliminary injunction to preserve the
rights of the parties upon the filing of a bond in
favor of the adverse party. The bond is
conditioned upon the payment to the adverse
party of all damages and costs that may be
awarded to such adverse party by reason of
the issuance of the injunction (Sec. 5).
Grounds for availing of the remedy
(petition for relief)

Review of final orders of the quasi-judicial

(1)

When a judgment or final order is

agencies

entered, or any other proceeding is thereafter

taken against a party in any court through (a)
fraud, (b) accident, (c) mistake, or (c)

(1)

Appeals from judgments and final orders

of quasi-judicial bodies/agencies are now

required to be brought to the CA under the
requirements and conditions set forth in Rule
43. This rule was adopted precisely to provide
a uniform rule of appellate procedure from
quasi-judicial bodies (Carpio vs. Sulu Resource

excusable negligence, he may file a petition in

such court and in the same case praying that
the judgment, order or proceeding be set
aside (Sec. 1, Rule 38).
(2)

When the petitioner has been prevented

from taking an appeal by fraud, mistake, or

excusable negligence (Sec. 2).

Devt. Corp., 387 SCRA 128).

(2)

The appeal under Rule 43 may be taken

to the CA whether the appeal involves a

Time to file petition

question of fact, a question of law, or mixed

questions of fact and law. The appeal shall be
taken by filing a verified petition for review
with the CA. The appeal shall not stay the
award, judgment, final order or resolution
sought to be reviewed unless the CA shall
direct otherwise upon such terms as it may
deem just.

(1)

A petition for relief from judgment,

order or other proceedings must be verified,

filed within 60 days after the petitioner learns
of the judgment, final order, or other
proceeding to be set aside, and not more than
six (6) months after such judgment or final
order was entered, or such proceeding was
taken; and must be accompanied with
affidavits showing the fraud, accident, mistake,

Reliefs from Judgments, Orders and Other

or excusable negligence relied upon, and the

Proceedings (Rule 38)

facts constituting the petitioners good and

substantial cause of action or defense, as the
case may be (Sec. 3, Rule 38).

(1)

A petition for relief from judgment is an

equitable remedy that is allowed only in

exceptional cases when there is no other
available or adequate remedy. When a party
has another remedy available to him, which

Contents of petition

(1)

The petition must be verified and must

rendered said judgment has no jurisdiction (Co

be accompanied with affidavits showing fraud,

vs. CA, 196 SCRA 705). Examples: A petition

accident, mistake or excusable negligence

for certiorari under Rule 65 is a direct attack. It

relied upon, and the facts constituting the

is filed primarily to have an order annulled. An

petitioners good and substantial cause of

action for annulment of a judgment is likewise

action or defense, as the case may be (Sec. 3).

a direct attack on a judgment. A motion to

dismiss a complaint for collection of a sum of
money filed by a corporation against the

Annulment of Judgments, or Final Orders

defendant on the ground that the plaintiff has

and Resolutions (Rule 47)

no legal capacity to use is a collateral attack on

the corporation. A motion to dismiss is

Grounds for annulment

incidental to the main action for sum of money.

It is not filed as an action intended to attack
the legal existence of the plaintiff (Co vs. CA,

(1)

The annulment may be based only on

196 SCRA 705).

the grounds of extrinsic fraud and lack of

jurisdiction. Extrinsic fraud shall not be a valid
ground if it was availed of, or could have been
availed of, in a motion for new trial or petition
for relief (Sec. 2, Rule 47).

1.

II.

EXECUTION,

SATISFACTION AND EFFECT OF

JUDGMENTS (Rule 39)

Period to file action

Difference between finality of judgment
(1)

If based on extrinsic fraud, the action

must be filed within four (4) years from its

for purpose of appeal; for purposes of

execution

discovery; and if based on lack of jurisdiction,

before it is barred by laches or estoppels (Sec.
3).

(1)

The term final when used to describe a

judgment may be used in two senses. In the

first, it refers to a judgment that disposes of a

Effects of judgment of annulment

case in a manner that leaves nothing more to

be done by the court in respect thereto. In this
sense, a final judgment is distinguished from
an interlocutory order which does not finally

(1)

A judgment of annulment shall set aside

terminate or dispose of the case (Rudecon

the questioned judgment or final order or

Management Corp. vs. Singson, 4554 SCRA

resolution and render the same null and void,

612). Since the finality of a judgment has the

without prejudice to the original action being

effect of ending the litigation, an aggrieved

refilled in the proper court. However, where the

party may then appeal from the judgment.

judgment or final order or resolution is set

Under Sec. 1, Rule 41, an appeal may be taken

aside on the ground of extrinsic fraud, the

from a judgment or final order that completely

court may on motion order the trial court to try

disposes of the case. Under the same rule, an

the case as if a timely motion for new trial had

appeal cannot be taken from an interlocutory

been granted therein (Sec. 7, Rule 47).

order.
(2)

In another sense, the word final may

refer to a judgment that is no longer

Collateral attack of judgments

appealable and is already capable of being

executed because the period for appeal has
elapsed without a party having perfected an

(1)

A collateral attack is made when, in

appeal or if there has been appeal, it has

another action to obtain a different relief, an

already been resolved by a highest possible

attack on the judgment is made as an incident

tribunal (PCGG vs. Sandiganbayan, 455 SCRA

in said action. This is proper only when the

526). In this sense, the judgment is commonly

judgment, on its face, is null and void, as

referred to a s one that is final and executory.

where it is patent that the court which

When execution shall issue; Execution as

(e)

Judgment has become dormant; or

(f)

Execution is unjust or impossible.

a matter of right (Sec. 1)

(1)

Execution is a matter of right upon the

expiration of the period to appeal and no

Discretionary execution (Sec. 2)

appeal was perfected from a judgment or order

that disposes of the action or proceeding (Sec.
1, Rule 39). Once a judgment becomes final

(1)

and executory, the prevailing party can have it

constitutes an exception to the general rule

executed as a matter of right, and the issuance

that a judgment cannot be executed before the

of a writ of execution becomes the ministerial

lapse of the period for appeal or during the

duty of the court. Once a decision becomes

pendency of an appeal. Under Sec. 1, Rule 39,

final and executory, it is the ministerial duty of

execution shall issue only as a matter of right

the presiding judge to issue a writ of execution

upon a judgment or final order that finally

except in certain cases, as when subsequent

disposes of the action or proceeding upon the

events would render execution of judgment

execution of the period to appeal therefrom if

unjust (Mangahas vs. Paredes, GR 157866,

no appeal has been duly perfected.

Feb. 14, 2007).

(2)

The above principles have been

consistently applied. Thus, in a subsequent

ruling the Court declared: Once a judgment
becomes final, it is basic that the prevailing
party is entitled as a matter of right to a writ of
execution the issuance of which is the trial
courts ministerial duty, compellable by
mandamus (Greater Metropolitan Manila Solid
Waste Management Committee vs. Jancom
Environmental Corp., GR 2163663, Jan. 30,
2006).
(3)

Judgments and orders become final and

executor by operation of law and not by

judicial declaration. The trial court need not
even pronounce the finality of the order as the
same becomes final by operation of law. Its
finality becomes a fact when the reglementary
period for appeal lapses, and no appeal is
perfected within such period (Testate of Maria
Manuel Vda. De Biascan, 374 SCRA 621;
Vlason Enterprises vs. CA, 310 SCRA 26).
(4)

Execution is a matter or right after

(2)

The concept of discretionary execution

A discretionary execution is called

discretionary precisely because it is not a

matter of right. The execution of a judgment
under this concept is addressed to the
discretionary power of the court (Bangkok
Bank Public Company Ltd. vs. Lee, GR 159806,
Jan. 29, 2006). Unlike judgments that are final
and executor, a judgment subject to
discretionary execution cannot be insisted
upon but simply prayed and hoped for because
a discretionary execution is not a matter of
right.
(3)

A discretionary execution like an

execution pending appeal must be strictly

construed because it is an exception to the
general rule. It is not meant to be availed of
routinely because it applies only in
extraordinary circumstances. It should be
interpreted only insofar as the language
thereof fairly warrants, and all doubts should
be resolved in favor of the general
rule (Planters Products, Inc. vs. CA, GR
106052, Oct. 22, 1999). Where the execution

expiration of period to appeal and no appeal is

is not in conformity with the rules, the

perfected, except in the following cases:

execution is null and void (Bangkok Bank vs.

(a)

Where judgment turns out to be

Lee, supra.).

incomplete or conditional;

(4)

Requisites for discretionary execution:

(b)

(a)

There must be a motion filed by the

Judgment is novated by the parties;

prevailing party with notice to the adverse

(c)

Equitable grounds (i.e., change in the

party;

situation of the partiessupervening fact

doctrine)

(b)

There must be a hearing of the motion

for discretionary execution;

(d)

Execution is enjoined (i.e., petition for

relief from judgment or annulment of judgment

(c)

There must be good reasons to justify

with TRO or writ of preliminary injunction);

the discretionary execution; and

(d)

The good reasons must be stated in a

special order (Sec. 2, Rule 39).

state the name of the court, the case number

and title, the dispositive part of the subject
judgment or order; and (iii) require the sheriff
or other proper officer to whom it is directed to

How a judgment is executed (Sec. 4)

enforce the writ according to its term, in the

manner hereinafter provided:

(1)

Judgments in actions for injunction,

receivership, accounting and support, and such

other judgments as are now or may hereafter
be declared to be immediately executory, shall

(a)

If the execution be against the property

of the judgment obligor, to satisfy the

judgment, with interest, out of the real or
personal property of such judgment obligor;

be enforceable after their rendition and shall

(b)

not be stayed by an appeal taken therefrom,

in the hands of personal representatives, heirs,

unless otherwise ordered by the trial court. on

devisees, legatees, tenants, or trustees of the

appeal therefrom, the appellate court in its

judgment obligor, to satisfy the judgment, with

discretion may make an order suspending,

interest, out of such property;

If it be against real or personal property

modifying, restoring or granting the injunction,

receivership, accounting, or award of support.

(c)

The stay of execution shall be upon such terms

property, to sell such property, describing it,

as to bond or otherwise as may be considered

and apply the proceeds in conformity with the

proper for the security or protection of the

judgment, the material parts of which shall be

rights of the adverse party.

recited in the writ of execution;

(2)

(d)

Judgments that may be altered or

modified after becoming final and executory:

If it be for the sale of real or personal

If it be for the delivery of the possession

of real or personal property, to deliver the

possession of the same, describing it, to the

(a)

Facts and circumstances transpire which

render its execution impossible or unjust;

(b)

Support;

(c)

Interlocutory judgment.

party entitled thereto, and to satisfy any costs,

damages, rents, or profits covered by the
judgment out of the personal property of the
person against whom it was rendered, and if
sufficient personal property cannot be found,
then out of the real property; and
(e)

In all cases, the writ of execution shall

Execution by motion or by independent

specifically state the amount of the interest,

action (Sec. 6)

costs, damages, rents, or profits due as of the

date of the issuance of the writ, aside from the
principal obligation under the judgment. For

(1)

A final and executor judgment or order

may be executed on motion within 5 years

from the date of its entry. After the lapse of

this purpose, the motion for execution shall

specify the amounts of the foregoing reliefs
sought by the movants.

such time, and before it is barred by the

statute of limitations, a judgment may be
enforced by action. The revived judgment may

Execution of judgment for money (Sec. 9)

also be enforced by motion within 5 years from

the date of its entry and thereafter by action
before it is barred by the statute of limitations.

(1)

In executing a judgment for money, the

sheriff shall follow the following steps:

Issuance and contents of a writ of
execution (Sec. 8)

(a)

Demand from the judgment obligor the

immediate payment of the full amount stated

in the judgment including the lawful fees in
cash, certified check payable to the judgment

(1)

The writ of execution shall: (i) issue in

the name of the Republic of the Philippines

from the court which granted the motion; (ii)

oblige or any other form of payment

acceptable to him (Sec. 9). In emphasizing this
rule, the SC held that in the execution of a
money judgment, the sheriff is required to first

make a demand on the obligor for the

immediate payment of the full amount stated
in the writ of execution (Sibulo vs. San Jose,

Effect of levy on third persons (Sec. 12)

474 SCRA 464).

(b)

If the judgment obligor cannot pay all or

part of the obligation in cash, certified check or

(1)

other mode of payment, the officer shall levy

in favor of the judgment oblige over the right,

upon the properties of the judgment obligor.

title and interest of the judgment obligor in

The judgment obligor shall have the option to

such property at the time of the levy, subject

choose which property or part thereof may be

to liens and encumbrances then existing.

The levy on execution shall create a lien

levied upon. If the judgment obligor does not

exercise the option, the officer shall first levy
on the personal properties, if any, and then on
the real properties if the personal properties
are insufficient to answer for the personal

Properties exempt from execution (Sec.

13)

judgment but the sheriff shall sell only so

much of the property that is sufficient to
satisfy the judgment and lawful fees (Sec.

(1)

9[b]).

from execution enumerated under Sec. 13,

There are certain properties exempt

Rule 39:

Execution of judgment for specific acts

(Sec. 10)

(a)

The judgment obligors family home as

provided by law, or the homestead in which he

resides, and the land necessarily used in
connection therewith;

(1)

If the judgment requires a person to

(b)

Ordinary tools and implements

perform a specific act, said act must be

personally used by him in his trade,

performed but if the party fails to comply

employment, or livelihood;

within the specified time, the court may direct

the act to be done by someone at the cost of

(c)

the disobedient party and the act when so

carabaos, or other beasts of burden, such as

done shall have the effect as if done by the

the judgment obligor may select necessarily

party (Sec 10[a]). If the judgment directs a

used by him in his ordinary occupation;

conveyance of real or personal property, and

said property is in the Philippines, the court in
lieu of directing the conveyance thereof, may
by an order divest the title of any party and
vest it in others, which shall have the force and
effect of a conveyance executed in due form of
law (Sec. 10[a], Rule 39).

Three horses, or three cows, or three

(d)

His necessary clothing and articles for

ordinary personal use, excluding jewelry;

(e)

Household furniture and utensils

necessary for housekeeping, and used for that

purpose by the judgment obligor and his
family, such as the judgment obligor may
select, of a value not exceeding 100,000
pesos.

Execution of special judgments (Sec. 11)

(f)

Provisions for individual or family use

sufficient for four months;

(1)

When a judgment requires the

performance of any act other than those

mentioned in the two preceding sections, a
certified copy of the judgment shall be
attached to the writ of execution and shall be
served by the officer upon the party against
whom the same is rendered, or upon any other
person required thereby, or by law, to obey the
same, and such party or person may be
punished for contempt if he disobeys such
judgment.

(g)

The professional libraries and equipment

of judges, lawyers, physicians, pharmacists,

dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not
exceeding 300,000 pesos;
(h)

One fishing boat and accessories not

exceeding the total value of 100,000 pesos

owned by a fisherman and by the lawful use of
which he earns his livelihood;

(i)

So much of the salaries, wages, or

his claim to the property in a separate action,

earnings of the judgment obligor for his

or prevent the judgment obligee from claiming

personal services with 4 months preceding the

damages in the same or a separate action

levy as are necessary for the support of his

against a third-party claimant who filed a

family;

frivolous or plainly spurious claim.

(j)

Lettered gravestones;

When the writ of execution is issued in favor of

the Republic of the Philippines, or any officer

(k)

Monies, benefits, privileges, or annuities

duly representing it, the filing of such bond

accruing or in any manner growing out of any

shall not be required, and in case the sheriff or

life insurance;

levying officer is sued for damages as a result

(l)

The right to receive legal support, or

money or property obtained as such support,

or any pension or gratuity from the
government; and
(m)

Properties specially exempted by

law (Sec. 13, Rule 39).

(2)

If the property mentioned in Sec. 13 is

the subject of execution because of a judgment

for the recovery of the price or upon judgment
of foreclosure of a mortgage upon the
property, the property is not exempt from
execution.

of the levy, he shall be represented by the

Solicitor General and if held liable therefor, the
actual damages adjudged by the court shall be
paid by the National Treasurer out of such
funds as may be appropriated for the purpose.
(2)

Requisites for a claim by a third person:

(a)

The property is levied;

(b)

The claimant is a person other than the

judgment obligor or his agent;

(c)

Makes an affidavit of his title thereto or

right to the possession thereof stating the

grounds of such right or title; and

Proceedings where property is claimed by

third persons (Sec. 16)

(1)

If the property levied on is claimed by

any person other than the judgment obligor or

(d)

Serves the same upon the officer

making the levy and the judgment obligee.

In relation to third party claim in

attachment and replevin

his agent, and such person makes an affidavit

of his title thereto or right to the possession
thereof, stating the grounds of such right or

(1)

title, and serves the same upon the officer

person not party to the action but whose

making the levy and a copy thereof upon the

property is the subject of execution:

Certain remedies available to a third

judgment obligee, the officer shall not be

bound to keep the property, unless such

(a)

judgment obligee, on demand of the officer,

title thereto or his right to possession thereof,

files a bond approved by the court to indemnify

stating the grounds of such right or title. The

the third-party claimant in a sum not less than

affidavit must be served upon the sheriff and

the value of the property levied on. In case of

the attaching party (Sec. 14, Rule 57). Upon

disagreement as to such value, the same shall

service of the affidavit upon him, the sheriff

be determined by the court issuing the writ of

shall not be bound to keep the property under

execution. No claim for damages for the taking

attachment except if the attaching party files a

or keeping of the property may be enforced

bond approved by the court. the sheriff shall

against the bond unless the action therefor is

not be liable for damages for the taking or

filed within one hundred twenty (120) days

keeping of the property, if such bond shall be

from the date of the filing of the bond.

filed.
(b)

Terceria By making an affidavit of his

Exclusion or release of property

The officer shall not be liable for damages for

Upon application of the third person through a

the taking or keeping of the property, to any

motion to set aside the levy on attachment,

third-party claimant if such bond is filed.

the court shall order a summary hearing for

Nothing herein contained shall prevent such

the purpose of determining whether the sheriff

claimant or any third person from vindicating

has acted rightly or wrongly in the

performance of his duties in the execution of

(b) amount of any assessments or taxes which

the writ of attachment. The court may order

the purchaser may have paid after purchase;

the sheriff to release the property from the

(c) if the purchaser be also a creditor having a

erroneous levy and to return the same to the

prior lien to that of the redemptioner, other

third person. In resolving the application, the

than the judgment under which such purchase

court cannot pass upon the question of title to

was made, the amount of such other lien; and

the property with any character of finality but

(d) with 1 percent per month interest up to the

only insofar as may be necessary to decide if

time of redemption.

the sheriff has acted correctly or not (Ching vs.

CA, 423 SCRA 356).

(3)

(c)

redeemed within 60 days after the last

Intervention This is possible because

Property redeemed may again be

no judgment has yet been rendered and under

redemption by a redemptioner, upon payment

the rules, a motion for intervention may be

of: (a) the sum paid on the last redemption,

filed any time before the rendition of the

with additional 2 percent; (b) the amount of

judgment by the trial court (Sec. 2, Rule 19).

any assessments or taxes which the last

(d)

redemptioner may have paid thereon after

Accion Reinvindicatoria The third

party claimant is not precluded by Sec. 14,

redemption by him, with interest; (c) the

Rule 57 from vindicating his claim to the

amount of any liens held by said last

property in the same or in a separate action.

redemptioner prior to his own, with interest.

He may file a separate action to nullify the levy

with damages resulting from the unlawful levy
and seizure. This action may be a totally
distinct action from the former case.

(4)

The property may be again, and as often

as a redemptioner is so disposed, similarly

redeemed from any previous redemptioner
within 60 days after the last redemption.
Written notice of any redemption must be

Rules on Redemption

given to the officer who made the sale and a

duplicate filed with the registry of deeds of the
place. If any assessments or taxes are paid by
the redemptioner or if he has or acquires any

(1) Real property sold, or any part thereof sold

lien other than that upon which the redemption

separately, may be redeemed by the following

was made, notice thereof must in like manner

persons:

be given to the officer and filed with the

(a)

Judgment obligor, or his successor in

interest in the whole or any part of the

property;
(b)

Redemptioner a creditor having a lien

by virtue of an attachment, judgment or

mortgage on the property sold, or on some
part thereof, subsequent to the lien under
which the property was sold.
A mortgagee can be a redemptioner even if his
mortgage has not yet matured, but his
mortgage contract must have been executed
after the entry of judgment. Generally in
judicial foreclosure sale, there is no right of
redemption, but only equity of redemption. In
sale of estate property to pay off debts of the
estate, there is no redemption at all. Only in
extrajudicial foreclosure sale and sale on
execution is there the right of redemption.

registry of deeds. If such notice be not filed,

the property may be redeemed without paying
such assessments, taxes, or liens.
(5)

Effect of Redemption. If the judgment

obligor redeems, he must make the same

payments as are required to effect a
redemption by a redemptioner, whereupon, no
further redemption shall be allowed and he is
restored to his estate. The person to whom the
redemption payment is made must execute
and deliver to him a certificate of redemption
acknowledged before a notary public or other
officer authorized to take acknowledgments of
conveyances of real property. Such certificate
must be filed and recorded in the registry of
deeds of the place in which the property is
situated, and the registrar of deeds must note
the record thereof on the margin of the record
of the certificate of sale. The payments
mentioned in this and the last preceding

The judgment obligor, or redemptioner,

sections may be made to the purchaser or

may redeem the property from the purchaser

redemptioner, or for him to the officer who

at any time within 1 year from the date of the

made the sale (Sec. 29).

registration of the certificate of sale by paying

(6)

the purchaser (a) the amount of his purchase;

redemptioner must produce to the officer, or

(2)

Proof required of redemptioner. A

person from whom he seeks to redeem, and

and in the latter case shall have the same

serve with his notice to the officer a copy of

validity as though the officer making the sale

the judgment or final order under which he

had continued in office and executed it.

claims the right to redeem, certified by the

Upon the expiration of the right of redemption,

clerk of the court wherein the judgment or final

the purchaser or redemptioner shall be

order is entered; or, if he redeems upon a

substituted to and acquire all the rights, title,

mortgage or other lien, a memorandum of the

interest and claim of the judgment obligor to

record thereof, certified by the registrar of

the property as of the time of the levy. The

deeds; or an original or certified copy of any

possession of the property shall be given to the

assignment necessary to establish his claim;

purchaser or last redemptioner by the same

and an affidavit executed by him or his agent,

officer unless a third party is actually holding

showing the amount then actually due on the

the property adversely to the judgment

lien (Sec. 30).

obligor (Sec. 33).

(7)

Manner of using premises pending

redemption. Until the expiration of the time

allowed for redemption, the court may, as in

Examination of judgments obligor when

other proper cases, restrain the commission of

judgment is unsatisfied (Sec. 36)

waste on the property by injunction, on the

application of the purchaser or the judgment
obligee, with or without notice; but it is not
waste for a person in possession of the
property at the time of the sale, or entitled to
possession afterwards, during the period
allowed for redemption, to continue to use it in
the same manner in which it was previously
used; or to use it in the ordinary course of
husbandry; or to make the necessary repairs
to buildings thereon while he occupies the
property (Sec. 31).
(8)

Rents, earnings and income of property

pending redemption. The purchaser or a

redemptioner shall not be entitled to receive
the rents, earnings and income of the property
sold on execution, or the value of the use and
occupation thereof when such property is in
the possession of a tenant. All rents, earnings
and income derived from the property pending
redemption shall belong to the judgment
obligor until the expiration of his period of

(1)

When the return of a writ of execution

issued against property of a judgment obligor,

or any one of several obligors in the same
judgment, shows that the judgment remains
unsatisfied, in whole or in part, the judgment
obligee, at any time after such return is made,
shall be entitled to an order from the court
which rendered the said judgment, requiring
such judgment obligor to appear and be
examined concerning his property and income
before such court or before a commissioner
appointed by it, at a specified time and place;
and proceedings may thereupon be had for the
application of the property and income of the
judgment obligor towards the satisfaction of
the judgment. But no judgment obligor shall be
so required to appear before a court or
commissioner outside the province or city in
which such obligor resides or is found.

redemption (Sec. 32).

(9)

Deed and possession to be given at

expiration of redemption period; by whom

Examination of obligor of judgment

executed or given. If no redemption be made

obligor (Sec. 37)

within one (1) year from the date of the

registration of the certificate of sale, the
purchaser is entitled to a conveyance and

(1)

possession of the property; or, if so redeemed

against the property of a judgment obligor

whenever sixty (60) days have elapsed and no

shows that the judgment remains unsatisfied,

other redemption has been made, and notice

in whole or in part, and upon proof to the

thereof given, and the time for redemption has

satisfaction of the court which issued the writ,

expired, the last redemptioner is entitled to the

that person, corporation, or other juridical

conveyance and possession; but in all cases

entity has property of such judgment obligor or

the judgment obligor shall have the entire

is indebted to him, the court may, by an order,

period of one (1) year from the date of the

require such person, corporation, or other

registration of the sale to redeem the property.

juridical entity, or any officer or member

The deed shall be executed by the officer

thereof, to appear before the court or a

making the sale or by his successor in office,

commissioner appointed by it, at a time and

When the return of a writ of execution

place within the province or city where such

(1)

In case of a judgment or final order

debtor resides or is found, and be examined

upon a specific thing, the judgment or final

concerning the same. The service of the order

order is conclusive upon the title to the thing;

shall bind all credits due the judgment obligor

and

and all money and property of the judgment

obligor in the possession or in control of such

(2)

person, corporation, or juridical entity from the

against a person, the judgment or final order is

In case of a judgment or final order

time of service; and the court may also require

presumptive evidence of a right as between

notice of such proceedings to be given to any

the parties and their successors in interest by a

party to the action in such manner as it may

subsequent title. In either case, the judgment

deem proper.

or final order may be repelled by evidence of a

want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law
or fact.

Effect of judgment or final orders: Res

Judicata (Sec. 47)

(3)

A foreign judgment on the mere

strength of its promulgation is not yet

conclusive, as it can be annulled on the
(1)

In case of a judgment or final order

grounds of want of jurisdiction, want of notice

against a specific thing, or in respect to the

to the party, collusion, fraud, or clear mistake

probate of a will, or the administration of the

of law or fact. It is likewise recognized in

estate of a deceased person, or in respect to

Philippine jurisprudence and international law

the personal, political, or legal condition or

that a foreign judgment may be barred from

status of a particular person or his relationship

recognition if it runs counter to public

to another, the judgment or final order is

policy (Republic vs. Gingoyon, GR 166429,

conclusive upon the title to the thing, the will

June 27, 2006).

or administration, or the condition, status or

relationship of the person; however, the
probate of a will or granting of letters of

1.

III.

PROVISIONAL REMEDIES

(Rules 57-61)

administration shall only be prima facie

evidence of the truth of the testator or
intestate;
(2)

Nature of provisional remedies

In other cases, the judgment or final

order is, with respect to the matter directly

(1)

adjudged or as to any other matter that could

auxiliary, and ancillary remedies available to a

have been raised in relation thereto, conclusive

litigant for the protection and preservation of

between the parties and their successors in

his rights while the main action is pending.

interest by title subsequent to the

They are writs and processes which are not

commencement of the action or special

main actions and they presuppose the

proceeding, litigating for the same thing and

existence of a principal action.

Provisional remedies are temporary,

under the same title and in the same capacity;

and

(2)

Provisional remedies are resorted to by

litigants for any of the following reasons:

(3)

In any other litigation between the same

parties or their successors in interest, that only

(a)

To preserve or protect their rights or

is deemed to have been adjudged in a former

interests while the main action is pending;

judgment or final order which appears upon its

face to have been so adjudged, or which was
actually and necessarily included therein or
necessary thereto.

(b)

To secure the judgment;

(c)

To preserve the status quo; or

(d)

To preserve the subject matter of the

action.
Enforcement and effect of foreign
judgments or final orders (Sec. 48)

(3)

Provisional remedies specified under the

rules are:
(a)

Preliminary attachment (Rule 57);

(b)

Preliminary injunction (Rule 58);

property of the party against whom

(c)

Receivership (Rule 59);

attachment is directed.

(d)

Replevin (Rule 60); and

(e)

Support pendent lite (Rule 61).

(b)

Garnishment plaintiff seeks to subject

either the property of defendant in the hands

of a third person (garnishee) to his claim or
Jurisdiction over provisional remedies

the money which said third person owes the

defendant. Garnishment does not involve
actual seizure of property which remains in the

(1)

The courts which grants or issues a

provisional remedy is the court which has

jurisdiction over the main action. Even an
inferior court may grant a provisional remedy
in an action pending with it and within its
jurisdiction.

hands of the garnishee. It simply impounds the

property in the garnishees possession and
maintains the status quo until the main action
is finally decided. Garnishment proceedings are
usually directed against personal property,
tangible or intangible and whether capable of
manual delivery or not.
(c)

Levy on execution writ issued by the

court after judgment by which the property of

Preliminary Attachment (Rule 57)

the judgment obligor is taken into custody of

the court before the sale of the property on
execution for the satisfaction of a final

(1)

Preliminary attachment is a provisional

judgment. It is the preliminary step to the sale

remedy issued upon order of the court where

on execution of the property of the judgment

an action is pending to be levied upon the

debtor.

property of the defendant so the property may

be held by the sheriff as security for the

(5)

satisfaction of whatever judgment may be

the discretion of the court whether or not the

rendered in the case (Davao Light and Power,

application shall be given full credit is

Inc. vs. CA, 204 SCRA 343).

discretionary upon the court. in determining

(2)

the propriety of the grant, the court also

When availed of and is granted in an

The grant of the remedy is addressed to

action purely in personam, it converts the

considers the principal case upon which the

action to one that is quasi in rem. In an

provisional remedy depends.

action in rem or quasi in rem, jurisdiction over

the res is sufficient. Jurisdiction over the
person of the defendant is not
required(Villareal vs. CA, 295 SCRA 511).
(3)

Preliminary attachment is designed to:

(a)

Seize the property of the debtor before

final judgment and put the same incustodial

egis even while the action is pending for the
satisfaction of a later judgment(Insular Bank of
Asia and America vs. CA, 190 SCRA 629);
(b)

To enable the court to acquire

Grounds for issuance of writ of

attachment

(1)

At the commencement of the action or

at any time before entry of judgment, a

plaintiff 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:

jurisdiction over the res or the property subject

of the action in cases where service in person

(a)

In an action for the recovery of a

or any other service to acquire jurisdiction over

specified amount of money or damages, other

the defendant cannot be affected.

than moral and exemplary, on a cause of

action arising from law, contract, quasi-

(4)

Preliminary attachment has three types:

(a)

Preliminary attachment one issued at

contract, delict or quasi-delict against a party

who is about to depart from the Philippines
with intent to defraud his creditors;

the commencement of the action or at any

time before entry of judgment as security for

(b)

In an action for money or property

the satisfaction of any judgment that may be

embezzled or fraudulently misapplied or

recovered. Here the court takes custody of the

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

Issuance and contents of order of

his employment as such, or by any other

attachment; affidavit and bond

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 party 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
the action is brought, or in the performance
thereof;
(e)

In an action against a party who has

(1)

An order of attachment may be issued

either ex parte or upon motion with notice and

hearing by the court in which the action is
pending, or by the CA or the SC, and must
require the sheriff of the court to attach so
much of the property in the Philippines of the
party against whom it is issued, not exempt
from execution, as may be sufficient to satisfy
the applicants demand, unless such party
makes deposit or gives a bond in an amount
equal to that fixed in the order, which may be
the amount sufficient to satisfy the applicants
demand or the value of the property to be
attached as stated by the applicant, exclusive
of costs. Several writs may be issued at the

removed or disposed of his property, or is

same time to the sheriffs of the courts of

about to do so, with intent to defraud his

different judicial regions (Sec. 2).

creditors; or

(2)

An order of attachment shall be granted

only when it appears by the affidavit of the

(f)

In an action against a party who does

applicant, or of some other person who

not reside and is not found in the Philippines,

personally knows the facts, that a sufficient

or on whom summons may be served by

cause of action exists, that the case is one of

publication (Sec. 1).

those mentioned in Section1, that there is no

other sufficient security for the claim sought to
be enforced by the action, and that the amount

Requisites

due to the applicant, or the value of the

property the possession of which he is entitled
to recover, is as much as the sum for which the

(1)

The issuance of an order/writ of

execution requires the following:

(a)

order is granted above all legal counterclaims.

The affidavit, and the bond must be filed with
the court before the order issues (Sec. 3).

The case must be any of those where

preliminary attachment is proper;

Rule on prior or contemporaneous service
(b)

The applicant must file a motion (ex

of summons

parte or with notice and hearing);

(c)

The applicant must show by affidavit

(under oath) that there is no sufficient security

(1)

No levy on attachment pursuant to the

for the claim sought to be enforced; that the

writ of preliminary attachment shall be

amount claimed in the action is as much as the

enforced unless it is preceded, or

sum of which the order is granted above all

contemporaneously accompanied, by the

counterclaims; and

service of summons, together with a copy of

the complaint, the application for attachment,

(d)

The applicant must post a bond

the applicants affidavit and bond, and the

executed to the adverse party. This is called an

order and writ of attachment, on the defendant

attachment bond, which answers for all

within the Philippines.

damages incurred by the party against whom

the attachment was issued and sustained by

(2)

The requirement of prior or

him by reason of the attachment (Carlos vs.

contemporaneous service of summons shall not

Sandoval, 471 SCRA 266).

apply in the following instances:

(a)

Where the summons could not be served

by the certificate of title, a description

personally or by substituted service despite

sufficiently accurate for the identification of the

diligent efforts;

land or interest to be affected shall be included

in the registration of such attachment;

(b)

The defendant is a resident of the

Philippines who is temporarily out of the

(b) Personal property capable of manual

country;

delivery, by taking and safely keeping it in his

custody, after issuing the corresponding receipt

(c)

The defendant is a non-resident; or

therefor;

(d)

The action is one in rem or quasi in

(c) Stocks or shares, or an interest in stocks or

rem (Sec. 5).

shares, of any corporation or company, by

leaving with the president or managing agent
thereof, a copy of the writ, and a notice stating

Manner of attaching real and personal

that the stock or interest of the party against

property; when property attached is

whom the attachment is issued is attached in

claimed by third person

pursuance of such writ;

(d) Debts and credits, including bank deposits,

Sec. 7. Attachment of real and personal

property; recording thereof. Real and
personal property shall be attached by the
sheriff executing the writ in the following
manner:

financial interest, royalties, commissions and

other personal property not capable of manual
delivery, by leaving with the person owing such
debts, or having in his possession or under his
control, such credits or other personal
property, or with his agent, a copy of the writ,

(a) Real property, or growing crops thereon, or

and notice that the debts owing by him to the

any interest therein, standing upon the record

party against whom attachment is issued, and

of the registry of deeds of the province in the

the credits and other personal property in his

name of the party against whom attachment is

possession, or under his control, belonging to

issued, or not appearing at all upon such

said party, are attached in pursuance of such

records, or belonging to the party against

writ;

whom attachment is issued and held by any

other person, or standing on the records of the

(e) The interest of the party against whom

registry of deeds in the name of any other

attachment is issued in property belonging to

person, by filing with the registry of deeds a

the estate of the decedent, whether as heir,

copy of the order, together with a description

legatee, or devisee, by serving the executor or

of the property attached, and a notice that it is

administrator or other personal representative

attached, or that such real property and any

of the decedent with a copy of the writ and

interest therein held by or standing in the

notice that said interest is attached. A copy of

name of such other person are attached, and

said writ of attachment and of said notice shall

by leaving a copy of such order, description,

also be filed in the office of the clerk of the

and notice with the occupant of the property, if

court in which said estate is being settled and

any, or with such other person or his agent if

served upon the heir, legatee or devisee

found within the province. Where the property

concerned.

has been brought under the operation of either

the Land Registration Act or the Property

If the property sought to be attached is

Registration Decree, the notice shall contain a

in custodia legis, a copy of the writ of

reference to the number of the certificate of

attachment shall be filed with the proper court

title, the volume and page in the registration

or quasi-judicial agency, and notice of the

book where the certificate is registered, and

attachment served upon the custodian of such

the registered owner or owners thereof.

property.

The registrar of deeds must index attachments

filed under this section in the names of the

(10) Certain remedies available to a third

applicant, the adverse party, or the person by

person not party to the action but whose

whom the property is held or in whose name it

property is the subject of execution:

stands in the records. If the attachment is not

claimed on the entire area of the land covered

(e)

Terceria by making an affidavit of his

court in the order of attachment, exclusive of

title thereto or his right to possession thereof,

costs. Counter-bonds are replacements of the

stating the grounds of such right or title. The

property formerly attached, and just as the

affidavit must be served upon the sheriff and

latter, may be levied upon after final judgment.

the attaching party (Sec. 14). Upon service of

Note that the mere posting of counterbond

the affidavit upon him, the sheriff shall not be

does not automatically discharge the writ of

bound to keep the property under attachment

attachment. It is only after the hearing and

except if the attaching party files a bond

after the judge has ordered the discharge of

approved by the court. the sheriff shall not be

attachment that the same is properly

liable for damages for the taking or keeping of

discharged (Sec. 12).

the property, if such bond shall be filed.

(f)

Exclusion or release of property Upon

application of the third person through a

motion to set aside the levy on attachment,
the court shall order a summary hearing for
the purpose of determining whether the sheriff
has acted rightly or wrongly in the

(2)

Attachment may likewise be discharged

without the need for filing of a counter-bond.

This is possible when the party whose property
has been attached files a motion to set aside or
discharge the attachment and during the
hearing of the motion, he proves that:

performance of his duties in the execution of

(a)

the writ of attachment. The court may order

irregularly issued or enforced; or

The attachment was improperly or

the sheriff to release the property from the

erroneous levy and to return the same to the

(b)

third person. In resolving the application, the

insufficient; or

The bond of the attaching creditor is

court cannot pass upon the question of title to

the property with any character of finality but

(c)

only insofar as may be necessary to decide if

be discharged as to the excess (Sec. 13); or

the sheriff has acted correctly or not (Ching vs.

(d)

CA, 423 SCRA 356).

and as such is also exempt from preliminary

(g)

attachment (Sec. 2).

Intervention this is possible because

no judgment has yet been rendered and under

The attachment is excessive and must

The property is exempt from execution,

(3)

Grounds for discharge of an attachment

(a)

Counterbond posted

(b)

improperly issued

(c)

irregularly issued or enforced

(d)

insufficient applicants bond

the rules, a motion for intervention may be

filed any time before the rendition of the
judgment by the trial court (Sec. 2, Rule 19).
(h)

Accion Reinvindicatoria The third party

claimant is not precluded by Sec. 14, Rule 57

from vindicating his claim to the property in
the same or in a separate action. He may file a
separate action to nullify the levy with
damages resulting from the unlawful levy and

Improperly (e.g. writ of attachment was not

seizure. This action may be a totally distinct

based on the grounds in Sec. 1)

action from the former case.

Irregularly (e.g. writ of attachment was

executed without previous or contemporaneous
service of summons

Discharge of attachment and the counterbond

Satisfaction of judgment out of property
(1)

If the attachment has already been

attached

enforced, the party whose property has been

attached may file a motion to discharge the
attachment. This motion shall be with notice
and hearing. After due notice and hearing, the
court shall discharge the attachment if the
movants makes a cash deposit or files a
counter-bond executed to the attaching party
with the clerk of court where the application is
made in an amount equal to that fixed by the

(1)

If judgment be recovered by the

attaching party and execution issue thereon,

the sheriff may cause the judgment to be
satisfied out of the property attached, if it be
sufficient for that purpose in the following
manner:

(a)

By paying to the judgment obligee the

pendency of the action (Cortez-Estrada vs.

proceeds of all sales of perishable or other

Heirs of Domingo, 451 SCRA 275 [2005]). The

property sold in pursuance of the order of the

status quo is the last, actual, peaceable and

court, or so much as shall be necessary to

uncontested situation which precedes a

satisfy the judgment;

controversy. The injunction should not

establish a new relation between the parties,

(b)

If any balance remains due, by selling so

but merely should maintain or re-establish the

much of the property, real or personal, as may

pre-existing relationship between them.

be necessary to satisfy the balance, if enough

(3)

for that purpose remain in the sheriffs hands,

until it is dissolved; a temporary restraining

or in those of the clerk of the court;

order (TRO) has a lifetime only of 20 days

(c)

By collecting from all persons having in

their possession credits belonging to the

judgment obligor, or owing debts to the latter
at the time of the attachment of such credits or
debts, the amounts of such credits and debts
as determined by the court in the action, and
stated in the judgment, and paying the
proceeds of such collection over to the
judgment obligee (Sec. 15).
(2)

Order of satisfaction of judgment of

attached property

A writ of preliminary injunction remains

(RTC and MTC) or 60 days (Court of Appeals).

A TRO issued by the Supreme Court shall be
effective until further orders. A TRO is issued
to preserve the status quo until the hearing of
the application for preliminary injunction. The
judge may issue a TRO with a limited life of 20
days from date of issue. If before the
expiration of the 20 day period, the application
for preliminary injunction is denied, the TRO
would be deemed automatically vacated. If no
action is taken by the judge within the 20 day
period, the TRO would automatically expire on
the 20th day by the sheer force of law, no

(1)

Perishable or other property sold in

pursuance of the order of the court;

(2)

Property, real or personal, as may be

necessary to satisfy the balance;

(3)

collecting from debtors of the judgment

obligor;
(4)

ordinary execution.

judicial declaration to that effect being

necessary (Bacolod City Water District vs.
Labayen, 446 SCRA 110).
(4)

1998 Bar: A TRO is an order to maintain

the status quo between and among the parties

until the determination of the prayer for a writ
of preliminary injunction. A writ of preliminary
injunction cannot be granted without notice
and hearing. A TRO may be granted ex parte if
it shall appear from facts shown by affidavits
or by the verified application that great or
irreparable injury would result to the applicant

Preliminary Injunction (Rule 58)

before the matter can be heard on notice, the

court in which the application for preliminary
injunction was made my issue a TRO ex

Definitions and Differences: Preliminary

parte for a period not exceeding 20 days from

Injunction and Temporary Restraining

service to the party sought to be enjoined.

Order
Requisites
(1)

A preliminary injunction is an order

granted at any stage of an action or

proceeding prior to the judgment or final order,

(1) A preliminary injunction or temporary

requiring a party or a court, agency or a

restraining order may be granted only when:

person to refrain from a particular act or acts.

It may also require the performance of a

(a)

particular act or acts, in which case it shall be

proceeding is verified, and shows facts entitling

The application in the action or

known as a preliminary mandatory

the applicant to the relief demanded; and

injunction (Sec. 1).

(2)

As a provisional remedy, preliminary

(b)

Unless exempted by the court, the

injunction aims to preserve the status quoor to

applicant files with the court where the action

prevent future wrongs in order to preserve and

or proceeding is pending, a bond executed to

protect certain interests or rights during the

the party or person enjoined, in an amount to

be fixed by the court, to the effect that the

damage without proof of an actual existing

applicant will pay to such party or person all

right is not a ground for preliminary

damages which he may sustain by reason of

injunction (Sps. Nisce vs. Equitable PCI Bank,

the injunction or temporary restraining order if

Feb. 19, 2007).

the court should finally decide that the

applicant was not entitled thereto. Upon
approval of the requisite bond, a writ of

Kinds of Injunction

preliminary injunction shall be issued.

(c)

When an application for a writ of

(1)

Prohibitory its purpose is to prevent a

preliminary injunction or a temporary

person from the performance of a particular

restraining order is included in a complaint or

act which has not yet been performed. Here,

any initiatory pleading, the case, if filed in a

the status quo is preserved or restored and

multiple-sala court, shall be raffled only after

this refers to the last peaceable, uncontested

notice to and in the presence of the adverse

status prior to the controversy.

party or the person to be enjoined. In any

event, such notice 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.
However where the summons could not be
served personally or by substituted service
despite diligent efforts, or the adverse party is
a resident of the Philippines temporarily absent
therefrom or is a nonresident thereof, the

(a)

Preliminary secured before the finality

of judgment.
(a)

Final issued as a judgment, making

the injunction permanent. It perpetually

restrains a person from the continuance or
commission of an act and confirms the
previous preliminary injunction. It is one
included in the judgment as the relief or part of
the relief granted as a result of the action,
hence, granted only after trial (Sec. 10), and
no bond is required.

requirement of prior or contemporaneous

(2)

service of summons shall not apply.

person to perform a particular positive act

Mandatory its purpose is to require a

which has already been performed and has

(d)

The application for a temporary

violated the rights of another.

restraining order shall thereafter be acted upon

only after all parties are heard in a summary

(a)

Preliminary

(b)

Final

hearing which shall be conducted within

twenty-four (24) hours after the sheriffs
return of service and/or the records are
received by the branch selected by raffle and
to which the records shall be transmitted
immediately (Sec. 4).
(e)

The applicant must establish that there

is a need to restrain the commission or

(2a) Requisites for the issuance of mandatory

preliminary injunction
(a)

The invasion of the right is material and

substantial;

continuance of the acts complied of and if not

(b)

enjoined would work injustice to the

unmistakable;

The right of a complainant is clear and

applicant (Barbajo vs. Hidden View

Homeowners, Inc., 450 SCRA 315).

(c)

(f)

necessity for the writ to prevent serious

The plaintiff must further establish that

he or she has a present unmistakable right to

There is an urgent and permanent

damage (Rivera vs. Florendo, 144 SCRA 643).

be protected; that the facts against which

injunction is directed violate such right; and
there is a special and paramount necessity for

When writ may be issued

the writ to prevent serious damages. In the

absence of proof of legal right and the injury
sustained by the plaintiff, an order for the
issuance of a writ of preliminary injunction will
be nullified. Thus, where the plaintiffs right is
doubtful or disputed, a preliminary injunction is
not proper. The possibility of irreparable

(1)

The complaint in the action is verified,

and shows facts entitling the plaintiff to the

relief demanded; and

(2)

The plaintiff files a bond which the court

dissolution of the injunction or restraining

may fix, conditioned for the payment of

order. If it appears that the extent of the

damages to the party enjoined, if the court

preliminary injunction or restraining order

finds that the plaintiff is not entitled

granted is too great, it may be modified (Sec.

thereto(Sec. 4).

6).
(3)

(2) Grounds for objection to, or for

motion of dissolution of, injunction or

Grounds for issuance of preliminary

restraining order

injunction
(a)

Upon showing of insufficiency of the

application;
(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;
or
(2)

Other grounds upon affidavit of the

party or person enjoined;

(c)

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

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)

(b)

A party, court, agency or a person is

suffer, and the party enjoined files a

counterbond;
(d)

Insufficiency of the bond;

(e)

Insufficiency of the surety or sureties.

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

Duration of TRO

applicant respecting the subject of the action

or proceeding, and tending to render the
judgment ineffectual (Sec. 3).

(1)

The lifetime of a TRO is 20 days, which

is non-extendible (AM 02-02-07-SC).

Grounds for objection to, or for the
dissolution of injunction or restraining

In relation to RA 8975, Ban on issuance of

order

TRO or Writ of Injunction in cases

involving government infrastructure
projects

(1)

The application for injunction or

restraining order may be denied, upon a

showing of its insufficiency. The injunction or

(1)

restraining order may also be denied, or, if

is not available to stop infrastructure projects

granted, may be dissolved, on other grounds

of the government including arrastre and

upon affidavit of the party or person enjoined,

stevedoring operations (Malayan Integrated

which may be opposed by the applicant also by

Industries vs. CA, GR 101469, Sept. 4, 1992;

affidavits. It may further be denied, or, if

PPA vs. vs. Pier 8 Arrastre and Stev edoring

granted, may be dissolved, if it appears after

Services, 475 SCRA 426).

Under PD 1818 and RA 8735, injunction

hearing that although the applicant is entitled

to the injunction or restraining order, the
issuance or continuance thereof, as the case
may be, would cause irreparable damage to
the party or person enjoined while the

Rule on prior or contemporaneous service

of summons in relation to attachment

applicant can be fully compensated for such

damages as he may suffer, and the former files
a bond in an amount fixed by the court
conditioned that he will pay all damages which
the applicant may suffer by the denial or the

(1)

It is not available where the summons

could not be served personally or by

substituted service despite diligent efforts or

where the adverse party is a resident of the

(d)

Within 20-day period, the court must

Philippines temporarily absent therefrom or is a

order said person to show cause why the

non-resident thereof (Sec. 4).

injunction should not be granted, and

determine whether or not the preliminary
injunction shall be granted, and accordingly

Stages of Injunction

issue the corresponding order;

(e)

(1)

Seventy-two (72) hour Temporary

Restraining Order
(a)

If the matter is of extreme urgency and

Including the original 72 hours, total

effectivity of TRO shall:

1)

Not exceed 20 days, if issued by an RTC

or MTC;

the applicant will suffer grave injustice and

2)

irreparable injury;

or a member thereof;

(b)

3)

Until further orders, if issued by the SC.

(f)

TRO is automatically vacated upon

Issued by executive judge of a multi-

Not exceed 60 days, if issued by the CA

sala court or the presiding judge of a singlesala court;

expiration of the period and without granting of

(c)

Thereafter must

1)

Serve summons and other documents

2)

Conduct summary hearing to determine

preliminary injunction;
(g)

Effectivity is not extendible without need

of any judicial declaration to that effect;

whether the TRO shall be extended to 20 days

(h)

until the application for preliminary injunction

or renew the same on the same ground for

can be heard.

which it was issued.

(2)

Twenty (20) day TRO

(3)

Preliminary Injunction

(a)

If it shall appear from the facts shown

(a)

Hearing and prior notice to the party

by affidavits or by the verified application that

No court shall have authority to extend

sought to be enjoined;

great or irreparable injury would result to the

applicant before the matter can be heard on

(b)

notice;

pleading;

(b)

1)

If application is included in initiatory

pleading:

If application is included in initiatory

Notice of raffle shall be preceded, or

contemporaneously accompanied, by service of

summons, together with a copy of the

1)

Notice of raffle shall be preceded, or

complaint or initiatory pleading and the

contemporaneously accompanied, by service of

applicants affidavit and bond, upon the

summons, together with a copy of the

adverse party in the Philippines.

complaint or initiatory pleading and the

applicants affidavit and bond, upon the

2)

Raffled only after notice to and in the

adverse party in the Philippines;

presence of the adverse party or the person to

be enjoined

2)

Raffled only after notice to and in the

presence of the adverse party or the person to

(c)

Applicant posts a bond

(4)

Final Injunction

(a)

Note that a bond is required only in

be enjoined.
(c)

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;

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

Requisites

must also be shown. In the 20 day TRO, the

ground is great or irreparable injury (Paras v.
Roura, 163 SCRA 1 [1988]). Without a

(1)

Verified application;

(2)

Appointed by the court where the action

preliminary injunction, a TRO issued by the CA

expires without necessity of court action.

is pending, or by the CA or by the SC, or a

Receivership (Rule 59)

member thereof;
During the pendency of an appeal, the

(1)

Receivership is a provisional remedy

wherein the court appoints a representative to

preserve, administer, dispose of and prevent
the loss or dissipation of the real or personal
property during the pendency of an action.
(2)

It may be the principal action itself or a

mere provisional remedy; it can be availed of

even after the judgment has become final and
executory as it may be applied for to aid
execution or carry judgment into effect.

appellate court may allow an application for

the appointment of a receiver to be filed in and
decided by the court or origin and the receiver
appointed to be subject to the control of said
court.
(3)

Applicants bond conditioned on paying

the adverse party all damages he may sustain

by the appointment of the receiver in case the
appointment is without sufficient cause;
(4)

Receiver takes his oath and files his

bond.
Cases when receiver may be appointed
Requirements before issuance of an Order
(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)

(1)

Before issuing the order appointing a

receiver the court shall require the applicant to

file a bond executed to the party against whom
the application is presented, in an amount to
be fixed by the court, to the effect that the
applicant will pay such party all damages he
may sustain by reason of the appointment of
such receiver in case the applicant shall have
procured such appointment without sufficient
cause; and the court may, in its discretion, at
any time after the appointment, require an
additional bond as further security for such
damages (Sec. 2).

After judgment, to preserve the property

during the pendency of an appeal, or to

General powers of a receiver

dispose of it according to the judgment, or to

aid execution when the execution has been
returned unsatisfied or the judgment obligor

(1)

refuses to apply his property in satisfaction of

actions in his own name

To bring and defend, in such capacity,

the judgment, or otherwise to carry the

judgment into effect;

(2)

To take and keep possession of the

property in controversy
(4)

Whenever in other cases it appears that

the appointment of a receiver is the most

(3)

To receive rents

administering, or disposing of the property in

(4)

To collect debts due to himself as

litigation (Sec. 1).

receiver or to the fund, property, estate,

convenient and feasible means of preserving,

person, or corporation of which he is the

vs. Araneta, 64 Phil. 549); or (b) then court is

receiver

convinced that the powers are abused (Duque

vs. CFI, Manila, 13 SCRA 420).

(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

Replevin (Rule 60)

(1)

Replevin is a proceeding by which the

owner or one who has a general or special

that shall remain among the persons legally

property in the thing taken or detained seeks

entitled to receive the same

to recover possession in specie, the recovery of

(9)

To do such acts respecting the property

as the court may authorize.

damages being only incidental (Am. Jur. 6).

(2)

Replevin may be a main action or a

provisional remedy. As a principal action its

However, funds in the hands of a receiver may

ultimate goal is to recover personal property

be invested only by order of the court upon the

capable of manual delivery wrongfully detained

written consent of all the parties to the action.

by a person. Used in this sense, it is a suit in

No action may be filed by or against a receiver

itself.

without leave of the court which appointed

him (Sec. 6).

(3)

It is a provisional remedy in the nature

of possessory action and the applicant who

seeks immediate possession of the property
Two (2) kinds of bonds

involved need not be the holder of the legal

title thereto. It is sufficient that he is entitled
to possession thereof (Yang vs. Valdez, 177

(1) Applicants Bond (for appointment of

SCRA 141).

receiver) To pay the damages the adverse

party may sustain by reason of appointment of
receiver; and

When may Writ be Issued

(2) Receivers Bond (of the appointed receiver,

aside from oath) To answer for receivers

(1)

The provisional remedy of replevin can

faithful discharge of his duties (Sec. 2).

only be applied for before answer. A party

praying for the recovery of possession of
personal property may, at the commencement

Termination of receivership

of the action or at any time before answer,

apply for an order for the delivery of such
property to him (Sec. 1).

(1)

Whenever the court, motu proprio or on

motion of either party, shall determine that the

necessity for a receiver no longer exists, it

Requisites

shall, after due notice to all interested parties

and hearing, settle the accounts of the
receiver, direct the delivery of the funds and

(1)

other property in his possession to the person

remedy must file an application for a writ of

A party praying for the provisional

adjudged to be entitled to receive them, and

replevin. His application must be filed at the

order the discharge of the receiver from further

commencement of the action or at any time

duty as such. The court shall allow the receiver

before the defendant answers, and must

such reasonable compensation as the

contain an affidavit particularly describing the

circumstances of the case warrant, to be taxed

property to which he entitled of possession.

as costs against the defeated party, or

apportioned, as justice requires (Sec. 8).

(2)

(2)

property is wrongfully detained by the adverse

Receivership shall also be terminated

The affidavit must state that the

when (a) its continuance is not justified by the

party, alleging therein the cause of the

facts and circumstances of the case (Samson

detention. It must also state that the property

has not been destrained or taken for tax

custody. If the property or any part thereof be

assessment or a fine pursuant to law, or seized

concealed in a building or enclosure, the sheriff

under a writ of execution or preliminary

must demand its delivery, and if it be not

attachment, or otherwise placed incustodia

delivered, he must cause the building or

legis. If it has been seized, then the affidavit

enclosure to be broken open and take the

must state that it is exempt from such seizure

property into his possession. After the sheriff

or custody.

has taken possession of the property as herein

(3)

The affidavit must state the actual

market value of the property; and

(4)

The applicant must give a bond,

provided, he must keep it in a secure place and

shall be responsible for its delivery to the party
entitled thereto upon receiving his fees and
necessary expenses for taking and keeping the

executed to the adverse party and double the

same (Sec. 4).

value of the property.

(2)

If within five (5) days after the taking of

the property by the sheriff, the adverse party

does not object to the sufficiency of the bond,
or of the surety or sureties thereon; or if the
Affidavit and bond; Redelivery Bond

adverse party so objects and the court affirms

its approval of the applicants bond or approves
a new bond, of if the adverse party requires

(1)

Affidavit, alleging:

(a)

That the applicant is the owner of

the return of the property but his bond is

objected to and found insufficient and he does
not forthwith file an approved bond, the

property claimed, describing it or entitled to its

property shall be delivered to the applicant. If

possession;

for any reason the property is not delivered to

(b)

That the property is wrongfully detained

by the adverse party, alleging cause of its

detention;
(c)

That the property has not been

distrained or taken for tax assessment or fine

or under writ of execution/attachment or
placed under custodia legis or if seized, that it
is exempt or should be released; and
(d)

The actual market value of the property.

(2)

Bond, which must be double the value of

the applicant, the sheriff must return it to the

adverse party (Sec. 6).
(3)

A 3rd party claimant may vindicate his

claim to the property, and the applicant may

claim damages against such 3rd party, in the
same or separate action. A claim on the
indemnity bond should be filed within 120 days
from posting of such bond.
(4)

If the property taken is claimed by any

person other than the party against whom the

writ of replevin had been issued or his agent,
and such person makes an affidavit of his title

property, to answer for the return of property if

thereto, or right to the possession thereof,

adjudged and pay for such sum as he may

stating the grounds therefor, and serves such

recover from the applicant(Sec. 2).

affidavit upon the sheriff while the latter has

(3)

possession of the property and a copy thereof

It is required that the redelivery bond be

filed within the period of 5 days after the

upon the applicant, the sheriff shall not be

taking of the property. The rule is

bound to keep the property under replevin or

mandatory (Yang vs. Valdez, 177 SCRA 141).

deliver it to the applicant unless the applicant

or his agent, on demand of said sheriff, shall
file a bond approved by the court to indemnify

Sheriffs duty in the implementation of the

writ; when property is claimed by third
party

the third-party claimant in the sum not less

than the value of the property under replevin
as provided in section 2 hereof. In case of
disagreement as to such value, the court shall
determine the same. No claim for damages for

(1)

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

taking or keeping of the property may be

enforced against the bond unless the action
therefor is filed within one hundred twenty
(120) days from the date of the filing of the
bond.

The sheriff shall not be liable for damages, for

vindicating his claim to the property, or

the taking or keeping of such property, to any

prevent the applicant from claiming damages

such third-party claimant if such bond shall be

against a third-party claimant who filed a

filed. Nothing herein contained shall prevent

frivolous or plainly spurious claim, in the same

such claimant or any third person from

or a separate action (Sec. 7).