PROVISIONAL REMEDIES
Provisional Remedies cover the following:
1. Rule 57: Preliminary Attachment;
2. Rule 58: Preliminary Injunction;
3. Rule 59: Receivership;
4. Rule 60: Replevin; and
5. Rule 61: Support Pendente Lite
“Provisional”: these remedies are said to be “provisional” because they are
dependent or contingent upon a principal action and cannot exist in
themselves.
As such, if there is no cause of action for the principal action, the provisional
remedy applied for dies together with it, including corollary actions.
In Sps. Plaza vs. Lustiva, the Court held that upon the dismissal of the main
action, the the writ of preliminary injunction is deemed lifted notwithstanding
any appeal therefrom.
However, in Chemphil Export & Import Corporation v. CA, SC held that a writ
of attachment is not extinguished by the execution of a compromise
agreement between the parties, where the same has not been executed or
the winning party has not been fully paid yet. The parties to the compromise
agreement should not be deprived of the protection provided by an
attachment lien especially in an instance where one reneges on his obligations
under the agreement.
Who has jurisdiction to issue? The court having jurisdiction over the
principal case.
The SC has no original jurisdiction over a principal action for injunction.
However, if the principal action is with the SC, it may issue a writ of
Preliminary Injunction.
Support: is within the jurisdiction of the RTC since the determination of the
liability to give support is not capable of pecuniary estimation. However, if a
criminal complaint is instituted (say, for Seduction) which falls under the
jurisdiction of the MTC, and since the civil aspect is deemed instituted in the
criminal action (Rule 111, Sec. 1), the MTC may grant the provisional remedy
of support pendente lite.
A party may avail of provisional remedies even in special civil
actions. A party may file a petition for a special civil action and pray for the
grant of a provisional remedy.
Fundamental Requirements common to all:
1. Affidavit which must state facts that constitute the grounds for the grant
of the provisional remedy;
2. Bond – which may answer for the judgment (in case of preliminary
attachment) or damages (other provisional remedies)
Except: in case of Support Pendente Lite. It would be contrary to the very
nature of this provisional remedy which seeks for restitution or
reimbursement, to require the applicant to file a bond.
Ex-parte issuance of the writ: Generally not allowed, there must always
be notice and hearing. Except: in preliminary attachment where writ may be
applied for and granted without notice and hearing. Except still, however, that
summons must be served on the adverse party prior to or contemporaneous
to the implementation of the writ.
A. RULE 57: PRELIMIARY ATTACHMENT
PRINCIPAL ACTION: recovery and covers either real or personal property.
WHEN MAY BE AVAILED: Under Sec. 1, “at the commencement of the
action or at any time before final judgment.” By “final judgment” means entry
thereof.
What if a petition for review is filed, can a party still apply for preliminary
Cesar Nickolai F. Soriano Jr.
1 Arellano University School of Law 2011-0303
REMEDIAL LAW 2: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL and LECTURES OF ATTY. TRANQUIL
attachment? Yes. The judgment is not yet final.
What if appeal is not filed? Not anymore. Because judgment is deemed
entered at the lapse of the period to appeal.
When is action deemed commenced? At the filing of the complaint and
payment of the docket fees.
PURPOSE:
1. To secure satisfaction of a favourable judgment;
2. To force defendant to come to the negotiating table – since property
cannot be touched once placed under custodia legis;
3. For the court to acquire jurisdiction over the res/subject matter –
particularly in actions in rem or quasi in rem.
1. GROUNDS
Section 1. Grounds upon which attachment may issue. — 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:
(a) In an action for the recovery of a specified amount of money or
damages, other than moral and exemplary, on a cause of action arising
from law, contract, quasi-contract, delict or quasi-delict against a party
who is about to depart from the Philippines with intent to defraud his
creditors;
(b) In an action for money or property embezzled or fraudulently
misapplied or converted to his own use by a public officer, or an officer of
a corporation, or an attorney, factor, broker, agent, or clerk, in the course
of his employment as such, or by any other person in a fiduciary capacity,
or for a willful violation of duty;
(c) In an action to recover the possession of property unjustly or
fraudulently taken, detained or converted, when the property, or any part
thereof, has been concealed, removed, or disposed of to prevent its being
found or taken by the applicant or an authorized person;
(d) In an action against a party who has been guilty of a fraud in
contracting the debt or incurring the obligation upon which the action is
brought, or in the performance thereof;
(e) In an action against a party who has removed or disposed of his
property, or is about to do so, with intent to defraud his creditors; or
(f) In an action against a party who does not reside and is not found in
the Philippines, or on whom summons may be served by publication.
(a) to (c) above, are kinds of action to recover; while (d) to (f) are
dependent on the kinds of defendants.
Par. (d): It must be shown that the debtor in contracting the debt or incurring
the obligation intended to defraud the creditor. The fraud must relate to the
execution of the agreement and must have been the reason which induced
the other party into giving consent which he would not have otherwise given.
To constitute a ground for attachment in Section 1 (d), Rule 57 of the Rules
of Court, fraud should be committed upon contracting the obligation sued
upon. A debt is fraudulently contracted if at the time of contracting it the
debtor has a preconceived plan or intention not to pay, as it is in this case.
Fraud is a state of mind and need not be proved by direct evidence but may
be inferred from the circumstances attendant in each case. (Liberty Insurance
Corporation v. Court of Appeals)
General and sweeping allegations of fraud is NOT a sufficient basis
for the issuance of the writ: the applicant must sufficiently show the
factual circumstances of the alleged fraud because fraudulent intent cannot
be inferred from the debtor's mere non-payment of the debt or failure to
comply with his obligation.
If the applicant has not shown any specific act or deed to support the
allegation that respondent is guilty of fraud, the writ shall not issue.
The affidavit, being the foundation of the writ, must contain such particulars
as to how the fraud imputed to respondent was committed for the court to
decide whether or not to issue the writ. (Alejandro Ng Wee vs. Tankiansee)
2. REQUIREMENTS
Section 3. Affidavit and bond required. — An order of attachment
shall be granted only when it appears by the affidavit of the applicant, or
of some other person who personally knows the facts, that a sufficient
cause of action exists, that the case is one of those mentioned in section
1 hereof, that there is no other sufficient security for the claim sought to
be enforced by the action, and that the amount 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 order is granted above all legal
counterclaims. The affidavit, and the bond required by the next succeeding
section, must be duly filed with the court before the order issues.
REQUIREMENTS: Aside from the required affidavit and bond:
a. There must be a valid cause of action;
b. There must be a valid ground (Sec. 1);
c. The applicant has no other sufficient security;
d. The value or the claim to the property is at least equal to the prayer
above all counter-claims.
BOND: Every bond should be accompanied by a clearance from the Supreme
Court showing that the company concerned is qualified to transact business
which is valid only for thirty (30) days from the date of its issuance. (Torres
vs. Satsatin)
3. MANNER OF ATTACHING
Section 5. Manner of attaching property. — The sheriff enforcing the
writ shall without delay and with all reasonable diligence attach, to await
judgment and execution in the action, only so much of the property in the
Philippines of the party against whom the writ is issued, not exempt from
execution, as may be sufficient to satisfy the applicant's demand, unless
the former makes a deposit with the court from which the writ is issued,
or gives a counter-bond executed to the applicant, in an amount equal to
the bond fixed by the court in the order of attachment or to the value of
the property to be attached, exclusive of costs. No levy on attachment
pursuant to the writ issued under section 2 hereof shall be enforced unless
it is preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint, the application for
attachment the applicant's affidavit and bond, and the order and writ of
attachment, on the defendant within the Philippines.
The requirement of prior or contemporaneous service of summons shall
not apply where the summons could not be served personally or by
substituted service despite diligent efforts, or the defendant is a resident
of the Philippines temporarily absent therefrom, or the defendant is a non-
resident of the Philippines, or the action is one in rem or quasi in rem.
Jurisdiction over the defendant; GENERAL RULE: No levy on
attachment pursuant to the writ shall be enforced unless it is preceded, or
contemporaneously accompanied, by service of summons, together with
a copy of the complaint, the application for attachment the applicant's affidavit
and bond, and the order and writ of attachment.
EXCEPTIONS:
a. When the summons cannot be served personally or by substituted
service despite diligent efforts; or
b. The defendant is a resident of the Philippines temporarily absent
therefrom; or
c. The defendant is a non-resident of the Philippines; or
d. The action is one in rem or quasi in rem.
THREE STAGES OF THE GRANT OF PROVISIONAL REMEDY OF
ATTACHMENT:
a. The court issues the order granting the application;
b. The writ of attachment issues pursuant to the order granting the writ;
c. The writ is implemented.
Cesar Nickolai F. Soriano Jr.
2 Arellano University School of Law 2011-0303
REMEDIAL LAW 2: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL and LECTURES OF ATTY. TRANQUIL
Jurisdiction over the defendant is necessary only on the third stage:
For the initial two stages, it is not necessary that jurisdiction over the person
of the defendant be first obtained. However, once the implementation of the
writ commences, the court must have acquired jurisdiction over the defendant
for without such jurisdiction, the court has no power and authority to act in
any manner against the defendant. Any order issuing from the Court will not
bind the defendant. (Mangila vs. CA, see also Torres vs. Satsatin)
Subsequent service of summons does not cure the defect in the
implementation of the writ: The alias summons belatedly served on
petitioner cannot be deemed to have cured the fatal defect in the enforcement
of the writ. The trial court cannot enforce such a coercive process on petitioner
without first obtaining jurisdiction over her person. The preliminary writ of
attachment must be served after or simultaneous with the service of summons
on the defendant whether by personal service, substituted service or by
publication as warranted by the circumstances of the case. The subsequent
service of summons does not confer a retroactive acquisition of jurisdiction
over her person because the law does not allow for retroactivity of a belated
service. (Mangila vs. CA)
4. DISCHARGE OF ATTACHMENT
Section 12. Discharge of attachment upon giving counter-bond.
— After a writ of attachment has been enforced, the party whose property
has been attached, or the person appearing on his behalf, may move for
the discharge of the attachment wholly or in part on the security given.
The court shall, after due notice and hearing, order the discharge of the
attachment if the movant makes a cash deposit, or files a counter-bond
executed to the attaching party with the clerk of the court where the
application is made, in an amount equal to that fixed by the court in the
order of attachment, exclusive of costs. But if the attachment is sought to
be discharged with respect to a particular property, the counter-bond shall
be equal to the value of that property as determined by the court. In either
case, the cash deposit or the counter-bond shall secure the payment of
any judgment that the attaching party may recover in the action. A notice
of the deposit shall forthwith be served on the attaching party. Upon the
discharge of an attachment in accordance with the provisions of this
section, the property attached, or the proceeds of any sale thereof, shall
be delivered to the party making the deposit or giving the counter-bond,
or to the person appearing on his behalf, the deposit or counter-bond
aforesaid standing in place of the property so released. Should such
counter-bond for any reason be found to be or become insufficient, and
the party furnishing the same fail to file an additional counter-bond, the
attaching party may apply for a new order of attachment.
COUNTER-BOND: answers for the judgment (return/value of the property
plus expenses and damages). Unline in other provisional remedies where the
counter-bond answers for damages.
Filing a counter-bond is not a waiver of the right to claim damages
for wrongful attachment: The attachment debtor cannot be deemed to
have waived any defect in the issuance of the attachment writ by simply
availing himself of one way of discharging the attachment writ, instead of the
other. Moreover, the filing of a counterbond is a speedier way of discharging
the attachment writ maliciously sought out by the attaching party creditor
instead of the other way, which in most instances like in the present case,
would require presentation of evidence in a fullblown trial on the merits and
cannot easily be settled in a pending incident of the case. (Wenceslao vs.
Readycon Trading and Construction Corp.)
Compromise agreement will not discharge the writ of attachment:
In Chemphil Export & Import Corporation v. CA, the Court pronounced that a
writ of attachment is not extinguished by the execution of a compromise
agreement between the parties. The parties to the compromise agreement
should not be deprived of the protection provided by an attachment lien
especially in an instance where one reneges on his obligations under the
agreement, as in the case at bench, where Antonio Garcia failed to hold up
his own end of the deal, so to speak.
If we were to rule otherwise, we would in effect create a back door by which
a debtor can easily escape his creditors. Consequently, we would be faced
with an anomalous situation where a debtor, in order to buy time to dispose
of his properties, would enter into a compromise agreement he has no
intention of honoring in the first place. The purpose of the provisional remedy
of attachment would thus be lost. It would become, in analogy, a declawed
and toothless tiger. (Lim vs. Lazaro)
Section 13. Discharge of attachment on other grounds. — The
party whose property has been ordered attached may file a motion with
the court in which he action is pending, before or after levy or even after
the release of the attached property, for an order to set aside or discharge
the attachment on the ground that the same was improperly or irregularly
issued or enforced, or that the bond is insufficient. If the attachment is
excessive, the discharge shall be limited to the excess. If the motion be
made on affidavits on the part of the movant but not otherwise, the
attaching party may oppose the motion by counter-affidavits or other
evidence in addition to that on which the attachment was made. After due
notice and hearing, the court shall order the setting aside or the
corresponding discharge of the attachment if it appears that it was
improperly or irregularly issued or enforced, or that the bond is insufficient,
or that the attachment is excessive, and the defect is not cured forthwith.
Discharge by MOTION: on the ground:
1. That the writ was improperly or irregularly issued or enforced;
a. There was no proper ground;
b. No jurisdiction of the court over the res;
c. There was no bond or affidavit.
2. That the bond is insufficient;
3. The bond is excessive – only as to the excess.
When: unlike a counter-bond which can only be filed after the writ has been
enforced, a motion to discharge the writ may be filed before or after levy or
even after the release of the attached property.
Supervening events arising after the issuance of the writ cannot be
valid grounds for discharge by motion: the grounds must pertain to the
ISSUANCE of the writ of attachments and must attack such issuance as
improper or irregular since the rule contemplates that the defect must be in
the very issuance of the writ of attachment. Supervening events which may
or may not justify the discharge of the writ are not within the purview of this
particular rule. (Chuidian vs. Sandiganbayan)
When the writ of attachment is issued upon a ground which is at the
same time the applicant's cause of action, the only other way the
writ can be lifted or dissolved is by a counterbond: when the
preliminary attachment is issued upon a ground which is at the same time the
applicant's cause of action, the defendant is not allowed to file a motion to
dissolve the attachment under Section 13 of Rule 57 by offering to show the
falsity of the factual averments in the plaintiff's application and affidavits on
which the writ was based – and consequently that the writ based thereon had
been improperly or irregularly issued – the reason being that the hearing on
such a motion for dissolution of the writ would be tantamount to a trial of the
merits of the action. In other words, the merits of the action would be
ventilated at a mere hearing of a motion, instead of at the regular trial.
(Chuidian vs. Sandiganbayan)
5. THIRD PARTY CLAIM
Section 14. Proceedings where property claimed by third person.
— If the property attached is claimed by any person other than the party
against whom attachment had been issued or 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 title, and serves such affidavit upon
the sheriff while the latter has possession of the attached property, and a
copy thereof upon the attaching party, the sheriff shall not be bound to
keep the property under attachment, unless the attaching party or his
agent, on demand of the sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the
property levied upon. In case of disagreement as to such value, the same
shall be decided by the court issuing the writ of attachment. No claim for
damages for the taking or keeping of the property may be enforced against
Cesar Nickolai F. Soriano Jr.
3 Arellano University School of Law 2011-0303
REMEDIAL LAW 2: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL and LECTURES OF ATTY. TRANQUIL
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 the taking or keeping of such
property to any such third-party claimant, if such bond shall be filed.
Nothing herein contained shall prevent such claimant or any third person
from vindicating his claim to the property, or prevent the attaching party
from claiming damages against a third-party claimant who filed a frivolous
or plainly spurious claim, in the same or a separate action.
When the writ of attachment is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such bond shall
not be required, and in case the sheriff is sued for damages as a result of
the attachment, 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 the funds to be appropriated for the
purpose.
NOT 3RD PARTY COMPLAINT: unline in 3rd-party complaints where the 3rd
party is not involved but brought into the action, the 3rd party in a 3rd party
claim joins.
AFFIDAVIT OF 3RD PARTY CLAIM: given to the sheriff having custody of
the property attached. Upon such affidavit, the sheriff shall not be bound to
keep the property and he will deliver it to the 3rd party unless another bond
is filed by the attaching creditor to indemnify the 3rd party claimant.
6. CLAIM FOR DAMAGES
Section 20. Claim for damages on account of improper, irregular
or excessive attachment. — An application for damages on account of
improper, irregular or excessive attachment must be filed before the trial
or before appeal is perfected or before the judgment becomes executory,
with due notice to the attaching party and his surety or sureties setting
forth the facts showing his right to damages and the amount thereof. Such
damages may be awarded only after proper hearing and shall be included
in the judgment on the main case.
If the judgment of the appellate court be favorable to the party against
whom the attachment was issued he must claim damages sustained during
the pendency of the appeal by filing an application in the appellate court,
with notice to the party in whose favor the attachment was issued or his
surety or sureties, before the judgment of the appellate court becomes
executory. The appellate court may allow the application to be heard and
decided by the trial court.
Nothing herein contained shall prevent the party against whom the
attachment was issued from recovering in the same action the damages
awarded to him from any property of the attaching party not exempt from
execution should the bond or deposit given by the latter be insufficient or
fail to fully satisfy the award.
Recovery of damages on the bond; where applicable:
1. Attachment;
2. Preliminary Injunction;
3. Replevin;
4. Receivership
In Support Pendente Lite, there is no bond. As such, this provision does not
apply. However, there is reimbursement or restitution in such provisional
remedy.
Attachment: the adverse party may recover if the attachment was improper,
irregular or excessive.
What must be established: actual loss and injury, an amount must be
given and proven as a fact. In particular, if the claim of damages covers
unrealized profits, the same must be supported by independent evidence.
Bad faith is not required to be proven. If the same is proven that the
application is malicious, there can be claim for moral and exemplary damages.
 the parties before their claims can be thoroughly investigated and advisedly
Attorney’s Fees: as a rule, only if there is moral and exemplary damages. adjudicated. It is to be resorted to only when there is a pressing necessity to
However, when a party incurred expenses to lift a wrongfully issued writ of avoid injurious consequences which cannot be remedied under any standard
attachment, the same may be recovered. of compensation. (Idolor vs. CA)

B. RULE 58: PRELIMINARY INJUNCTION REQUISITES:

A preliminary injunction is an order granted at any stage of an action prior
to judgment of final order, requiring a party, court, agency, or person to
refrain from a particular act or acts.
It is a preservative remedy to ensure the protection of a party’s substantive
rights or interests pending the final judgment in the principal action. A plea
for an injunctive writ lies upon the existence of a claimed emergency or
extraordinary situation which should be avoided for otherwise, the outcome
of a litigation would be useless as far as the party applying for the writ is
concerned. (Solid Builders, Inc. vs. Chinabank)
1. CLASSES
Section 1. Preliminary injunction defined; classes. — A preliminary
injunction is an order granted at any stage of an action or proceeding prior
to the judgment or final order, requiring a party or a court, agency or a
person to refrain from a particular act or acts. It may also require the
performance of a particular act or acts, in which case it shall be known as
a preliminary mandatory injunction.
a. Right in esse – a right must be actual, subsisting and substantive and
not merely futuristic or inchoate;
“It is always a ground for denying injunction that the party seeking it has
insufficient title or interest to sustain it, and no claim to the ultimate
relief sought - in other words, that she shows no equity. The possibility
of irreparable damage without proof of actual existing right is not
aground for an injunction” (Idolor vs. CA)
When the complainant’s right or title is doubtful or disputed, he does not
have a clear legal right and, therefore, the issuance of injunctive relief is
not proper. (Sps. Plaza vs. Lustiva)
In the absence of a clear legal right, the issuance of the injunctive writ
constitutes grave abuse of discretion. (Solid Builders, Inc. vs. China
Banking Corporation)
b. There must be a violation or threatened violation of the right;
c. The violation or threatened violation of the right will result in
irreparable damage or injury.

a. Prohibitory Injunction – which seeks to maintain status quo by requiring The provisional remedy of preliminary injunction may only be resorted
the adverse party to refrain from a particular act or acts; to when there is a pressing necessity to avoid injurious consequences
b. Mandatory Injunction – which seeks to return to the status quo by which cannot be remedied under any standard of compensation.
requiring the performance of a particular act or acts.
Foreclosure of mortgaged property is not an irreparable
Example: If Meralco will cut the electric connection for failure to pay the bill, damage:
the remedy of a party is to file for a prohibitory injunction. If there is no 1. Any damage that the mortgagor may suffer in case of foreclosure
electricity, a mandatory injunction may be had to compel Meralco to fix the of the mortgaged properties will be purely monetary and
connection. compensable by an appropriate judgment in a proper case against
the mortgagee.
PRELIMINARY INJUNCTION vs. PROHIBITION 2. The mortgagor will not be deprived outrightly of his property, given
the right of redemption granted to them under the law.
PRELIMINARY INJUNCTION PROHIBITION 3. Moreover, in extrajudicial foreclosures, mortgagors have the right
May be the main action or a Principal and original action to receive any surplus in the selling price. (Solid Builders, Inc. vs.
provisional remedy to an action China Banking Corporation)
Directed only to the parties to the Aside from the party, likewise
case directed to the act of the officer, Lastly, under A.M. No. 99-10-05-0, Re: Procedure in Extrajudicial or
tribunal, corporation, board or Judicial Foreclosure of Real Estate Mortgages, a TRO or Preliminary
person Injunction cannot be issued against an extrajudicial foreclosure on the
Injunction does not involve the There is grave abuse of discretion following allegations:
jurisdiction of the court amounting to lack or excess of 1. the loan secured by the mortgage has been paid or is not delinquent
jurisdiction unless the application is verified and supported by evidence of
payment;
PRELIMINARY MANDATORY INJUNCTION VS. MANDAMUS 2. the interest on the loan is unconscionable, unless the debtor pays
the mortgagee at least twelve percent per annum interest on the
principal obligation as stated in the application for foreclosure sale,
PRELIMINARY INJUNCTION MANDAMUS
which shall be updated monthly while the case is pending;
May be the main action or a Principal and original action
provisional remedy to an action
In the event that a TRO or a Writ of Preliminary Injunction is issued, the
Directed only to the parties to the Aside from the party, likewise
disposition of the case shall be speedily resolved. To this end, the court
case directed to the act of the officer,
concerned shall submit to the Supreme Court, through the Office of the
tribunal, corporation, board or
Court Administrator, quarterly reports on the progress of the cases
person
involving ten million pesos and above.
Covers acts which are not purely Covers an act which is a ministerial
ministerial and the other party may duty of the officer, tribunal,
Absence of any of the requisites, issuance of injunction is improper:
not normally want to do corporation, board or person.
In the absence of any requisite, and where facts are shown to be wanting in
There is no legal obligation on the There is a law that requires the bringing the matter within the conditions for its issuance, the ancillary writ of
part of the other party to perform person, officer, tribunal, injunction must be struck down for having been rendered in grave abuse of
the act corporation, board or person to discretion. (Solid Builders, Inc. vs. China Banking Corporation)
perform.
Injunction does not cover contingent or future rights; the existence of
Purpose of the Writ of Preliminary Injunction: The controlling reason a right violated, is a prerequisite to the granting of an injunction. Injunction
for the existence of the judicial power to issue the writ is that the court may is not designed to protect contingent or future rights. Failure to establish
thereby prevent a threatened or continuous irremediable injury to some of either the existence of a clear and positive right which should be judicially
Cesar Nickolai F. Soriano Jr.
4 Arellano University School of Law 2011-0303
REMEDIAL LAW 2: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL and LECTURES OF ATTY. TRANQUIL
protected through the writ of injunction or that the defendant has committed
or has attempted to commit any act which has endangered or tends to
endanger the existence of said right, is a sufficient ground for denying the
injunction. (Idolor vs. CA)
Injunction is the strong arm of equity, the applicant therefor must
come to court with clean hands: Since injunction is the strong arm of
equity, he who must apply for it must come with equity or with clean
hands. This is so because among the maxims of equity are (1) he who seeks
equity must do equity, and (2) he who comes into equity must come with
clean hands.
Here, petitioners, having reneged on their agreement without any justifiable
reason, come to court with unclean hands. This Court may deny a litigant
relief if his conduct has been inequitable, unfair and dishonest as to the
controversy in issue. (Jenosa vs. Delariarte, O.S.A)
Court of equal rank: cannot issue a TRO or preliminary injunction against
a court of equal rank.
Dismissal of the main action discharges the writ: Upon the dismissal of
the main action, the question of the non-issuance of a writ of preliminary
injunction automatically died with it. A writ of preliminary injunction is a
provisional remedy; it is auxiliary, an adjunct of, and subject to the
determination of the main action. It is deemed lifted upon the dismissal of the
main case, any appeal therefrom notwithstanding. (Sps. Plaza vs. Lustiva)
2. GROUNDS
Section 3. Grounds for issuance of preliminary injunction. — A
preliminary injunction may be granted when it is established:
(a) That 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;
(b) That the commission, continuance or non-performance of the act or
acts complained of during the litigation would probably work injustice to
the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is
attempting to do, or is procuring or suffering to be done some act or acts
probably in violation of the rights of the applicant respecting the subject
of the action or proceeding, and tending to render the judgment
ineffectual.
3. REQUIREMENTS
Section 4. Verified application and bond for preliminary
injunction or temporary restraining order. — A preliminary injunction
or temporary restraining order may be granted only when:
(a) The application in the action or proceeding is verified, and shows facts
entitling the applicant to the relief demanded; and
(b) Unless exempted by the court the applicant files with the court where
the action or proceeding is pending, a bond executed to the party or person
enjoined, in an amount to be fixed by the court, to the effect that the
applicant will pay to such party or person all damages which he may
sustain by reason of the injunction or temporary restraining order if the
court should finally decide that the applicant was not entitled thereto. Upon
approval of the requisite bond, a writ of preliminary injunction shall be
issued.
(c) When an application for a writ of preliminary injunction or a temporary
restraining order is included in a complaint or any initiatory pleading, the
case, if filed in a multiple-sala court, shall be raffled only after notice to
and in the presence of the adverse 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 applicant's affidavit and bond,
upon the adverse party in the Philippines.
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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 requirement of prior or contemporaneous service of summons
shall not apply.
(d) The application for a temporary restraining order shall thereafter be
acted upon only after all parties are heard in a summary hearing which
shall be conducted within twenty-four (24) hours after the sheriff's return
of service and/or the records are received by the branch selected by raffle
and to which the records shall be transmitted immediately.
The injunction bond is intended to protect the adverse party against
loss or damage by reason of the injunction only; not as security for
the judgment award: A preliminary injunction may be granted only when,
among other things, the applicant, not explicitly exempted, files with the court
where the action or proceeding is pending, a bond executed to the party or
person enjoined, in an amount to be fixed by the court, to the effect that the
applicant will pay such party or person all damages which he may sustain by
reason of the injunction or temporary restraining order if the court should
finally decide that the applicant was not entitled thereto. Upon approval of
the requisite bond, a writ of preliminary injunction shall be issued.
The injunction bond is intended as a security for damages in case it is finally
decided that the injunction ought not to have been granted. Its principal
purpose is to protect the enjoined party against loss or damage by reason of
the injunction, and the bond is usually conditioned accordingly. (Lagrosas vs.
Bristol-Myers Squibb)
4. NOTICE REQUIREMENT; PERIOD OF EFFECTIVITY
Section 5. Preliminary injunction not granted without
notice; exception. — No preliminary injunction shall be granted without
hearing and prior notice to the party or person sought to be enjoined. If it
shall appear from facts shown by affidavits or by the verified application
that great or irreparable injury would result to the applicant before the
matter can be heard on notice, the court to which the application for
preliminary injunction was made, may issue a temporary restraining order
to be effective only for a period of twenty (20) days from service on the
party or person sought to be enjoined, except as herein provided. Within
the said twenty-day period, the court must order said party or person to
show cause, at a specified time and place, why the injunction should not
be granted, determine within the same period whether or not the
preliminary injunction shall be granted, and accordingly issue the
corresponding order. (Bar Matter No. 803, 17 February 1998)
However, and subject to the provisions of the preceding sections, if the
matter is of extreme urgency and the applicant will suffer grave injustice
and irreparable injury, the executive judge of a multiple-sala court or the
presiding judge of a single sala court may issue ex parte a temporary
restraining order effective for only seventy-two (72) hours from issuance
but he shall immediately comply with the provisions of the next preceding
section as to service of summons and the documents to be served
therewith. Thereafter, within the aforesaid seventy-two (72) hours, the
judge before whom the case is pending shall conduct a summary hearing
to determine whether the temporary restraining order shall be extended
until the application for preliminary injunction can be heard. In no case
shall the total period of effectivity of the temporary restraining order
exceed twenty (20) days, including the original seventy-two hours
provided herein.
In the event that the application for preliminary injunction is denied or not
resolved within the said period, the temporary restraining order is deemed,
automatically vacated. The effectivity of a temporary restraining order is
not extendible without need of any judicial declaration to that effect and
no court shall have authority to extend or renew the same on the same
ground for which it was issued.
However, if issued by the Court of Appeals or a member thereof, the
temporary restraining order shall be effective for sixty (60) days from
 service on the party or person sought to be enjoined. A restraining, order
issued by the Supreme Court or a member thereof shall be effective until
further orders. (5a)
REQUIREMENT OF NOTICE AND HEARING: unlike prior to amendment
of the Rule, a TRO, irrespective of kind, can be granted ex-parte under Sec.
5 of Rule 58. The TRO’s validity can be for 72 hours or 20 days. However, this
is still subject to the court’s discretion. Thus, the judge may still require
hearing prior to the issuance of the TRO.
The 72-hour TRO shall be issued if the judge finds that:
1. The matter is of extreme urgency; and
2. The applicant will suffer grave injustice and irreparable injury.
Who may issue:
1. Executive judge of a multi-sala court; or
2. Presiding judge of a single sala court.
Summons: must be served to the adverse party prior to or contemporaneous
with the TRO.
EFFECTIVITY: The 72-hour TRO takes effect upon issuance. While the 20-
day TRO takes effect upon receipt of notice. The court is prohibited from
issuing a 20-day TRO after the grant of a 72-hour TRO. However, the 72-hour
TRO may be extendible to an aggregate period not to exceed 20 days, or for
an additional 17 days.
TROs issued by the CA – 60 days. TROs issued by the SC – indefinite.
After the 72 hours it can no longer be extended: An already expired
TRO can no longer be extended. Beyond such time, the TRO automatically
expires, unless, before the expiration of the said period, he, supposedly in his
capacity as presiding judge to whom the case was raffled, conducted the
required summary hearing in order to extend the TROs lifetime. Indubitably,
a 72-hour TRO, issued by an executive judge, is a separate and distinct TRO
which can stand on its own, regardless of whether it is eventually extended
or not. It is not a mere part of the 20-day TRO issued by a presiding judge to
whom the case is raffled. (Sps. Lago vs. Abul, Jr.)
During the 20-day period of effectivity of the TRO: hearing is conducted
and the applicant presents evidence in what jurisprudence refers to as
“sampling of evidence” to properly present his side. Afterwhich, the
application for writ of preliminary injunction is decided by the court.
Renewal or Extension of TRO: applies only under the Alternative Dispute
Resolution Law, where the court can provide for additional 20 days of
effectivity of the TRO if the adverse party asks for time to file an answer.
Under the ADR Law, it is called Temporary Order of Protection.
HEARING REQUIREMENT: [W]henever an application for a TRO is filed,
the court may act on the application only after all parties have been notified
and heard in a summary hearing. In other words, a summary hearing may
not be dispensed with. (Gustilo vs. Real, Sr.)
Sampling of Evidence: It must be remembered that a writ of preliminary
injunction is generally based solely on initial and incomplete evidence. The
evidence submitted during the hearing on an application for a writ of
preliminary injunction is not conclusive or complete for only a sampling is
needed to give the trial court an idea of the justification for the preliminary
injunction pending the decision of the case on the merits. (Sps. Estares vs.
CA)
Injunction or TRO cannot be issued:
a. Cases arising from labor disputes under the Rules of the NLRC;
b. RTC cannot issue injunction against intellectual property cases;
c. By any court against the Agrarian Reform Council;
d. To restrain the collection of any national internal revenue taxes;
e. To restrain a criminal prosecution, EXCEPT:
1. To afford adequate protection to the Constitutional rights of the
accused;
2. When necessary for the orderly administration of justice or to
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avoid multiplicity of suits;
3. When double jeopardy is clearly apparent;
4. The charges are manifestly false and motivated by lust for
vengeance;
5. When there is clearly no prima facie case against the accused and
a motion to quash is filed with such ground.
f. Government infrastructure projects.
5. DISSOLUTION:
Section 6. Grounds for objection to, or for motion of dissolution
of, injunction or restraining order. — The application for injunction or
restraining order may be denied, upon a showing of its insufficiency. The
injunction or restraining order may also be denied, or, if granted, may be
dissolved, on other grounds upon affidavits of the party or person
enjoined, which may be opposed by the applicant also by affidavits. It may
further be denied, or if granted, may be dissolved, if it appears after
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 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 dissolution of the injunction or restraining order. If it appears that
the extent of the preliminary injunction or restraining order granted is too
great, it may be modified. (6a)
GROUNDS FOR OPPOSITION OR DISSOLUTION OF INJUNCTION
OR TRO:
1. Insiffuciency of the injunction;
2. Affidavits of a party showing that
a. Although the applicant is entitled thereto, the issuance or
continuance thereof, as the case may be, would cause irreparable
damage to the party enjoined,
b. While the applicant can be fully compensated for such damages as
he may suffer, and
c. The applicant files a bond
6. DAMAGES
Section 8. Judgment to include damages against party and
sureties. — At the trial, the amount of damages to be awarded to either
party, upon the bond of the adverse party, shall be claimed, ascertained,
and awarded under the same procedure prescribed in section 20 of Rule
57.
Malice or lack of good faith is not a condition sine qua non for liability
to attach on the injunction bond: Malice or lack of good faith is not an
element of recovery on the bond. This must be so, because to require malice
as a prerequisite would make the filing of a bond a useless formality. The
dissolution of the injunction, even if the injunction was obtained in good faith,
amounts to a determination that the injunction was wrongfully obtained and
a right of action on the injunction bond immediately accrues. Thus, for the
purpose of recovery upon the injunction bond, the dissolution of the injunction
because of petitioners main cause of action provides the actionable wrong for
the purpose of recovery upon the bond. (Aquino vs. Socorro citing Pacis vs.
COMELEC)
Extent of damages covered: Section 4(b), Rule 58 of the 1997 Revised
Rules of Civil Procedure clearly provides that the injunction bond is answerable
for all damages.
Consequently, the bond may obligate the bondsmen to account to the
defendant in the injunction suit for all damages, or costs and reasonable
counsels fees, incurred or sustained by the latter in case it is determined that
the injunction was wrongfully issued.
Attorneys fees, litigation costs, and costs of delay can be recovered from the
injunction bond as long as it can be shown that said expenses were sustained
by the party seeking recovery by reason of the writ of preliminary injunction,
which was later on determined as not to have been validly issued and that
the party who applied for the said writ was not entitled thereto.
Even if the injunction was directed against the court and not to the party: he
MeTC does not stand to suffer damages from the injunction because it has no
interest or stake in the Petition pending before it. Damage or loss is suffered
by the party whose right to pursue its case is suspended or delayed, which in
this case, is the petitioner. Upon issuance of the writ of injunction, it is the
petitioner who will stand to suffer damages for the delay in the principal case
because, had it not been for the injunction, the petitioner would not have
incurred additional expenses for attending the separate hearings on the
injunction, and the RTC can already decide the main case and make a prompt
determination of the respective rights of the parties therein. Hence, even if
the preliminary injunction was directed against the MeTC and not against the
petitioner, it is the latter which has the right to recover from the injunction
bond the damages which it might have suffered by reason of the said
injunction. (Limitless Potentials, Inc. vs. CA)
7. FINAL INJUNCTION
Section 9. When final injunction granted. — If after the trial of the
action it appears that the applicant is entitled to have the act or acts
complained of permanently enjoined the court shall grant a final injunction
perpetually restraining the party or person enjoined from the commission
or continuance of the act or acts of confirming the preliminary mandatory
injunction. (10a)
C. RULE 59: RECEIVERSHIP
PRINCIPAL ACTION: is receivership. The provisional remedy is the
appointment of a receiver.
PURPOSE: is for the preservation, administration, disposition of property.
If the purpose of the suit is to recover a deprived share in the subject
property, receivership is not proper: Rule 59, Sec. 1(b) requires that the
property or fund is in danger of being lost, removed or materially injured,
necessitating its protection or preservation. Its object is the prevention of
imminent danger to the property. If the action does not require such
protection or preservation, the remedy is not receivership.
In this case, the applicant’s main gripe is that she was deprived of her share
of the land’s produce. She does not claim that the land or its productive
capacity would disappear or be wasted if not entrusted to a receiver. Nor does
she claim that the land has been materially injured, necessitating its protection
and preservation. (Chavez vs. CA)
BONDS: two bonds are required:
a. One from the applicant to answer for damages that may arise from the
application.
b. One from the receiver to answer for damages that may result from the
acts of the receiver.
The RTC has no jurisdiction to place BANKS under receivership: it is
the Monetary Board that exercises exclusive jurisdiction over proceedings for
receivership of banks.
Section 30 of the New Central Bank Act provides that the appointment of a
receiver under this section shall be vested exclusively with the Monetary
Board. The term exclusively connotes that only the Monetary Board can
resolve the issue of whether a bank is to be placed under receivership and,
upon an affirmative finding, it also has authority to appoint a receiver. This is
further affirmed by the fact that the law allows the Monetary Board to take
action summarily and without need for prior hearing. (Koruga vs. Arcenas)
1. WHEN THE WRIT MAY ISSUE
Section 1. Appointment of receiver. — Upon a verified application,
one or more receivers of the property subject of the action or proceeding
may be appointed by the court where the action is pending or by the Court
of Appeals or by the Supreme Court, or a member thereof, in the following
cases:
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(a) When it appears from the verified application, and such other proof as
the court may require, that 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, removed, or materially injured unless a receiver be appointed to
administer and preserve it;
(b) When it appears 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;
(c) After judgment, to preserve the property during the pendency of an
appeal, or to dispose of it according to the judgment, or to aid execution
when the execution has been returned unsatisfied or the judgment obligor
refuses to apply his property in satisfaction of the judgment, or otherwise
to carry the judgment into effect;
(d) Whenever in other cases it appears that the appointment of a receiver
is the most convenient and feasible means of preserving, administering, or
disposing of the property in litigation.
During the pendency of an appeal, the appellate court may allow an
application for the appointment of a receiver to be filed in and decided by
the court of origin and the receiver appointed to be subject to the control
of said court.
A Receiver may be appointed in criminal, civil and administrative
cases, with different causes of action, imultaneously; the grant of
receivership in one case will not amount to res judicata in another:
The various suits Fidela initiated against Evelina and Aida involved different
causes of action and sought different reliefs. The present civil action that she
filed with the RTC sought to recover possession of the property based on
Evelina and Aidas failure to account for its fruits. The estafa cases she filed
with the RTC accused the two of misappropriating and converting her share
in the harvests for their own benefit. Her complaint for dispossession under
Republic Act 8048 with the DARAB sought to dispossess the two for allegedly
cutting coconut trees without the prior authority of Fidela or of the Philippine
Coconut Authority.
The above cases are similar only in that they involved the same parties and
Fidela sought the placing of the properties under receivership in all of
them. But receivership is not an action. It is but an auxiliary remedy, a mere
incident of the suit to help achieve its purpose. Consequently, it cannot be
said that the grant of receivership in one case will amount to res judicata on
the merits of the other cases. The grant or denial of this provisional remedy
will still depend on the need for it in the particular action. (Chavez vs. CA)
2. REQUIREMENT
Section 2. Bond on appointment of receiver. — 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.
3. DENIAL OR DISCHARGE
Section 3. Denial of application or discharge of receiver. — The
application may be denied, or the receiver discharged, when the adverse
party files a bond executed to the applicant, in an amount to be fixed by
the court, to the effect that such party will pay the applicant all damages
he may suffer by reason of the acts, omissions, or other matters specified
in the application as ground for such appointment. The receiver may also
be discharged if it is shown that his appointment was obtained without
 sufficient cause.
Possting of counterbond alone is insufficient to discharge: The rule
states that the application may be denied or the receiver discharged. In
statutory construction, the word may has always been construed as
permissive. If the intent is to make it mandatory or ministerial for the trial
court to order the recall of the receiver upon the offer to post a counterbond,
then the court should have used the word shall. Thus, the trial court has to
consider the posting of the counterbond in addition to other reasons
presented by the offeror why the receivership has to be set aside. (Vivares
vs. Reyes)
4. POWER OF RECEIVER
Section 4. Oath and bond of receiver. — Before entering upon his duties,
the receiver shall be sworn to perform them faithfully, and shall file a bond,
executed to such person and in such sum as the court may direct, to the
effect that he will faithfully discharge his duties in the action or proceeding
and obey the orders of the court.
5. GENERAL POWERS OF A RECEIVER
Section 6. General powers of receiver. — Subject to the control of the
court in which the action or proceeding is pending a receiver shall have
the power to bring and defend, in such capacity, actions in his own name;
to take and keep possession of the property in controversy; to receive
rents; to collect debts due to himself as receiver or to the fund, property,
estate, person, or corporation of which he is the receiver; to compound for
and compromise the same; to make transfers; to pay outstanding debts;
to divide the money and other property that shall remain among the
persons legally entitled to receive the same; and generally to do such acts
respecting the property as the court may authorize. However, funds in the
hands of a receiver may be invested only by order of the court upon the
written consent of all the parties to the action. (7a)
No action may be filed by or against a receiver without leave of the court
which appointed him. (n)
Foreclosure of mortgage is among the general powers of a receiver;
prescription thus sets in even if the creditor is placed under
receivership: receivership is not considered a fortuitout event:
foreclosure of mortgages is part of the receivers/liquidators duty of
administering the banks assets for the benefit of its depositors and creditors,
thus, the ten-year prescriptive period was not interrupted by the time during
which the respondent bank was placed under receivership.
The receiver of the bank is in fact obliged to collect debts owing to the bank,
which debts form part of the assets of the bank. The receiver must assemble
the assets and pay the obligation of the bank under receivership, and take
steps to prevent dissipation of such assets. Accordingly, the receiver of the
bank is obliged to collect pre-existing debts due to the bank, and in connection
therewith, to foreclose mortgages securing such debts. (Larrobis, Jr. vs.
Philippine Veterans Bank)
6. TERMINATION AND COMPENSATION
Section 8. Termination of receivership; compensation of receiver.
— Whenever the court, motu proprio or on motion of either party, shall
determine that the necessity for a receiver no longer exists, it shall, after
due notice to all interested parties and hearing, settle the accounts of the
receiver, direct the delivery of the funds and other property in his
possession to the person adjudged to be entitled to receive them and order
the discharge of the receiver from further duty as such. The court shall
allow the receiver such reasonable compensation as the circumstances of
the case warrant, to be taxed as costs against the defeated party, or
apportioned, as justice requires.
D. RULE 60: REPLEVIN
Replevin is an action whereby the owner or person entitled to repossession
of goods or chattels may recover those goods or chattels from one who has
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wrongfully distrained or taken, or who wrongfully detains such goods or
chattels. It is designed to permit one having right to possession to recover
property in specie from one who has wrongfully taken or detained the
property.
The term may refer either to the action itself, for the recovery of --, or to the
provisional remedy traditionally associated with it, by which possession of the
property may be obtained by the plaintiff and retained during the pendency
of the action. (Smart Communications, Inc. vs. Astorga)
PRINCIPAL ACTION: is recovery of possession of personal property.
Recovery of the employer of the vehicle given under a car plan to a
dismissed employee is not within the jurisdiction of the Labor Arbiter
but with the RTC: The RTC rightfully assumed jurisdiction over the suit and
acted well within its discretion in denying Astorga’s motion to dismiss. SMART’s
demand for payment of the market value of the car or, in the alternative, the
surrender of the car, is not a labor, but a civil, dispute. It involves the
relationship of debtor and creditor rather than employee-employer
relations. As such, the dispute falls within the jurisdiction of the regular
courts.
The question of whether or not a party has the right of possession over the
property involved and if so, whether or not the adverse party has wrongfully
taken and detained said property as to require its return to plaintiff, is outside
the pale of competence of a labor tribunal and beyond the field of specialization
of Labor Arbiters.
The labor dispute involved is not intertwined with the issue in the Replevin
Case. The respective issues raised in each forum can be resolved
independently on the other. (Smart Communications vs. Astorga)
1. WHEN WRIT MAY ISSUE
Section 1. Application. — A party praying for the recovery of possession
of personal property may, at the commencement of the action or at any
time before answer, apply for an order for the delivery of such property to
him, in the manner hereinafter provided.
BEFORE ANSWER: because after answer is filed, the issues are joined
including the judicial controversy regarding entitlement to possession.
2. REQUIREMENTS
Section 2. Affidavit and bond. — The applicant must show by his own
affidavit or that of some other person who personally knows the facts:
(a) That the applicant is the owner of the property claimed, particularly
describing it, or is entitled to the possession thereof;
(b) That the property is wrongfully detained by the adverse party, alleging
the cause of detention thereof according to the best of his knowledge,
information, and belief ;
(c) That the property has not been distrained or taken for a tax assessment
or a fine pursuant to law, or seized under a writ of execution or preliminary
attachment, or otherwise placed under custodia legis, or if so seized, that
it is exempt from such seizure or custody; and
(d) The actual market value of the property.
The applicant must also give a bond, executed to the adverse party in
double the value of the property as stated in the affidavit aforementioned,
for the return of the property to the adverse party if such return be
adjudged, and for the payment to the adverse party of such sum as he
may recover from the applicant in the action.
Who may apply:
1. Owner of the property claimed;
2. A person entitled to the possession thereof.

BONDS: twice the value of the personal property:
a. To answer for the value of the personal property; and
b. To ansewer for damages.
Prior demand is not necessary: For a writ of replevin to issue, all that the
applicant must do is to file an affidavit and bond, pursuant to Section 2, Rule
60 of the Rules.
The applicant must also give a bond, executed to the adverse party in double
the value of the property as stated in the affidavit aforementioned, for the
return of the property to the adverse party if such return be adjudged, and
for the payment to the adverse party of such sum as he may recover from the
applicant in the action.
We see nothing in these provisions which requires the applicant to make a
prior demand on the possessor of the property before he can file an action
for a writ of replevin. Thus, prior demand is not a condition precedent
to an action for a writ of replevin. (Navarro vs. Escobido)
DENR detention of forest goods is considered custodia legis: as such,
it may not be covered by a writ of replevin. This is because the DENR is
considered a quasi-judicial agency of primary jurisdiction.
Property detained in connection to a crime cannot be the subject of
replevin: because they are lawfully detained and as such, the applicant
cannot be considered unlawfully deprived thereof.
3. DISPOSITION OF PROPERTY BY SHERIFF
Section 6. Disposition of property by sheriff. — 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 adverse party so objects and the court affirms its approval of the
applicant's bond or approves a new bond, or if the adverse party requires
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 shall be
delivered to the applicant. If for any reason the property is not delivered
to the applicant, the sheriff must return it to the adverse party. (6a)
No immediate delivery to the applicant; adverse party is given 5 days
to either:
a. Object to the sufficiency of the bond; or
b. Require the return of the property by filing a counter-bond (redelivery
bond) under Sec. 5, to wit:
Section 5. Return of property. — If the adverse party objects to
the sufficiency of the applicant's bond, or of the surety or sureties
thereon, he cannot immediately require the return of the property,
but if he does not so object, he may, at any time before the delivery
of the property to the applicant, require the return thereof, by filing
with the court where the action is pending a bond executed to the
applicant, in double the value of the property as stated in the
applicant's affidavit for the delivery thereof to the applicant, if such
delivery be adjudged, and for the payment of such sum, to him as
may be recovered against the adverse party, and by serving a copy
of such bond on the applicant. (5a)
Sheriff is liable for the loss of the thing for immediately delivering
the property to the applicant prior to the expiration of the five days:
First, the rules provide that property seized under a writ of replevin is not to
be delivered immediately to the plaintiff. In accordance with the said rules,
the sheriff should have waited no less than five days in order to give the
complainant an opportunity to object to the sufficiency of the bond or of the
surety or sureties thereon, or require the return of the seized motor vehicles
by filing a counter-bond.
The rule is clear that the property seized should not be immediately delivered
to the plaintiff, and the sheriff must retain custody of the seized property for
at least five days.
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The alleged lack of facility to store the seized vehicles is unacceptable
considering that he should have deposited the same in a bonded warehouse.
Otherwise, authorization of the court may be obtained to deliver the vehicles
elsewhere.
Second, it must be stressed that from the moment an order of delivery
in replevin is executed by taking possession of the property specified therein,
such property is incustodia legis. As legal custodian, it is the Sheriff’s duty
to safekeep the seized motor vehicles.
Third, the sheriff should take precautionary measures to safeguard the
property subject of replevin. (Hao vs. Andres)
4. THIRD PARTY CLAIM
Section 7. Proceedings where property claimed by third person.
— 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 thereto, or right to the possession
thereof, stating the grounds therefor, and serves such affidavit upon the
sheriff while the latter has possession of the property and a copy thereof
upon the applicant, the sheriff shall not be bound to keep the property
under replevin or 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 the third-party claimant in a 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 the 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 the taking or keeping of
such property, to any such third-party claimant if such bond shall be filed.
Nothing herein contained shall prevent such claimant or any third person
from vindicating his claim to the property, or prevent the applicant from
claiming damages against a third-party claimant who filed a frivolous or
plainly spurious claim, in the same or a separate action.
When the writ of replevin is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such bond shall
not be required, and in case the sheriff is sued for damages as a result of
the replevin, 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 the funds to be appropriated for the purpose.
BOND IS THREE TIMES THE VALUE OF THE PROPERTY: In replevin,
where there is a third party claimant, the bond required to be posted by the
applicant is trice the value of the property – original bond for twice the value
and an additional bond equivalent to the value of the property for the 3rd party
claimant.
5. JUDGMENT
Section 9. Judgment. — After trial of the issues the court shall determine
who has the right of possession to and the value of the property and shall
render judgment in the alternative for the delivery thereof to the party
entitled to the same, or for its value in case delivery cannot be made, and
also for such damages as either party may prove, with costs. (9a)
Recovery is limited to EITHER:
1. The delivery of the thing subject of the case; or
2. The value thereof in case delivery cannot be made.
Plus: damages and costs, as proven.
Applicant of the writ of replevin cannot pray for both unpaid
instalment and the delivery of the car: the remedies provided for in Art.
1484 are alternative, not cumulative. The exercise of one bars the exercise of
the others. This limitation applies to contracts purporting to be leases of
personal property with option to buy by virtue of Art. 1485. The condition that
the lessor has deprived the lessee of possession or enjoyment of the thing for
the purpose of applying Art. 1485 was fulfilled in this case by the filing by
petitioner of the complaint for replevin to recover possession of movable
property.
This prayer of course cannot be granted, even assuming that private
respondents have defaulted in the payment of their obligation. This led the
trial court to say that petitioner wanted to eat its cake and have it too. (Elisco
Tool Manufacturing Corporation vs. CA)
However, if the recovery of the property did not materialize, the trial court
may grant the recovery of sum of money: Compared with Elisco, the vehicle
subject matter of this case was never recovered and delivered to respondent
despite the issuance of a writ of replevin. As there was no seizure that
transpired, it cannot be said that petitioners were deprived of the use and
enjoyment of the mortgaged vehicle or that respondent pursued, commenced
or concluded its actual foreclosure. The trial court, therefore, rightfully
granted the alternative prayer for sum of money, which is equivalent to the
remedy of "exacting fulfillment of the obligation." Certainly, there is no double
recovery or unjust enrichment to speak of. (Sps. Agner vs. BPI Family Savings
Bank, Inc.)
Sale of car in instalments; court cannot order return of the car or its
value if the same has not been fully paid yet: the trial court erred when
it ordered private respondent to return the subject car or its equivalent
considering that petitioner had not yet fully paid the purchase price. Verily, to
sustain the trial court's decision would amount to unjust enrichment. The
Court of Appeals was correct when it instead ordered private respondent to
return, not the car itself, but only the amount equivalent to the fourteen
installments actually paid with interest. (Orosa vs. CA)
6. DAMAGES
Section 10. Judgment to include recovery against sureties. — The
amount, if any, to be awarded to any party upon any bond filed in
accordance with the provisions of this Rule, shall be claimed, ascertained,
and granted under the same procedure as prescribed in section 20 of Rule
57.
E. RULE 61: SUPPORT PENDENTE LITE
PRINCIPAL ACTION: is support.
Family Code, Art. 203. The obligation to give support shall be
demandable from the time the person who has a right to receive the same
needs it for maintenance, but it shall not be paid except from the date of
judicial or extra-judicial demand.
Support pendente lite may be claimed in accordance with the Rules of
Court.
Payment shall be made within the first five days of each corresponding
month or when the recipient dies, his heirs shall not be obliged to return
what he has received in advance.
DEDUCTIONS FROM SUPPORT IN ARREARS: The monthly support
pendente lite granted by the trial court was intended primarily for food,
household expenses such as salaries of drivers and house helpers, and also
petitioner’s scoliosis therapy sessions. Hence, the value of two expensive cars
bought by respondent for his children plus their maintenance cost, travel
expenses of petitioner and Angelli, purchases through credit card of items
other than groceries and dry goods (clothing) should have been disallowed,
as these bear no relation to the judgment awarding support pendente lite.
The deductions should be limited to those basic needs and expenses
considered by the trial and appellate courts. (Lim-Lua vs. Lua, GR No. 175279,
June 5, 2013)
SUPPORT PENDENTE LITE: Under Rule 61 of the Rules of Court, a court
may temporarily grant support pendente lite prior to the rendition of judgment
or final order. Because of its provisional nature, a court does not need to delve
fully into the merits of the case before it can settle an application for this
Cesar Nickolai F. Soriano Jr.
10 Arellano University School of Law 2011-0303
REMEDIAL LAW 2: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL and LECTURES OF ATTY. TRANQUIL
relief. All that a court is tasked to do is determine the kind and amount of
evidence which may suffice to enable it to justly resolve the application. It is
enough that the facts be established by affidavits or other documentary
evidence appearing in the record. (Mangonon vs. CA)
1. APPLICATION FOR SUPPORT PENDENTE LITE
Section 1. Application. — At the commencement of the proper action
or proceeding, or at any time prior to the judgment or final order, a verified
application for support pendente lite may be filed by any party stating the
grounds for the claim and the financial conditions of both parties, and
accompanied by affidavits, depositions or other authentic documents in
support thereof.
WHEN: at the commencement of the action or at any time prior to the
judgment or final order, or practically anytime, because the decision for
support never becomes final.
DAMAGES: not applicable. Even if jusgment is in favour of defendant.
2. COMMENT, HEARING, ORDER
Section 2. Comment. — A copy of the application and all supporting
documents shall be served upon the adverse party, who shall have five (5)
days to comment thereon unless a different period is fixed by the court
upon his motion. The comment shall be verified and shall be accompanied
by affidavits, depositions or other authentic documents in support thereof.
Section 3. Hearing. — After the comment is filed, or after the expiration
of the period for its filing, the application shall be set for hearing not more
than three (3) days thereafter. The facts in issue shall be proved in the
same manner as is provided for evidence on motions.
Section 4. Order. — The court shall determine provisionally the pertinent
facts, and shall render such orders as justice and equity may require,
having the regard to the probable outcome of the case and such other
circumstances as may aid in the proper resolution of the question involved.
If the application is granted, the court shall fix the amount of money to be
provisionally paid or such other forms of support as should be provided,
taking into account the necessities of the applicant and the resources or
means of the adverse party, and the terms of payment or mode for
providing the support. If the application is denied, the principal case shall
be tried and decided as early as possible.
3. ENFORCEMENT OF ORDER
Section 5. Enforcement of order. — If the adverse party fails to comply
with an order granting support pendente lite, the court shall, motu
proprio or upon motion; issue an order of execution against him, without
prejudice to his liability for contempt.
When the person ordered to give support pendente lite refuses or fails to
do so, any third person who furnished that support to the applicant may,
after due notice and hearing in the same case obtain a writ of execution
to enforce his right of reimbursement against the person ordered to
provide such support.
4. RESTITUTION
Section 7. Restitution. — When the judgment or final order of the court
finds that the person who has been providing support pendente lite is not
liable therefor, it shall order the recipient thereof to return to the former
the amounts already paid with legal interest from the dates of actual
payment, without prejudice to the right of the recipient to obtain
reimbursement in a separate action from the person legally obliged to give
the support. Should the recipient fail to reimburse said amounts, the
person who provided the same may likewise seek reimbursement thereof
in a separate action from the person legally obliged to give such support.
REMEDIES OF DEFENDANT: in case the case is decided in favour of the
defendant, his remedies would be to:
1. Seek restitution in the same action from the recipient; or
2. Obtain reimbursement from the person legally obliged to give support in
a separate action.
Example:
a. Alice files against Bernard (B) a petition for support with prayer for
Support Pendente Lite;
b. B has 5 days to comment
i. f no comment, court grants SPL;
ii. If B comments, there will be a hearing
c. If A fails to establish paternity:
i. A restitutes the whole amount plus interest; B can file it in the same
action;
ii. If C is proven the real father, C reimburses B; B has to file a
separate action for reimbursement.
REIMBURSEMENT MAY BE HAD BY THE PERSON WHO ADVANCED
SUPPORT: Pursuant to Article 207 of the Family Code, Noel Daban can
rightfully exact reimbursement from the petitioner. The provision reads:
When the person obliged to support another unjustly refuses or fails
to give support when urgently needed by the latter, any third person
may furnish support to the needy individual, with right of
reimbursement from the person obliged to give support.
of an appeal stays the execution of the judgment and that advance executions
will only be allowed if there are urgent reasons therefor. The aforesaid
provision peremptorily calls for immediate execution of all judgments for
support and makes no distinction between those which are the subject of an
appeal and those which are not.
An excerpt from the early case of De Leon v. Soriano is relevant, thus:
The money and property adjudged for support and education
should and must be given presently and without delay because
if it had to wait the final judgment, the children may in the
meantime have suffered because of lack of food or have missed
and lost years in school because of lack of funds. One cannot
delay the payment of such funds for support and education for
the reason that if paid long afterwards, however much the
accumulated amount, its payment cannot cure the evil and
repair the damage caused. The children with such belated
payment for support and education cannot act as gluttons and
eat voraciously and unwisely, afterwards, to make up for the
years of hunger and starvation. Neither may they enrol in
several classes and schools and take up numerous subjects all
at once to make up for the years they missed in school, due to
non-payment of the funds when needed.
(Gan vs. Reyes)

Mention may also be made that, contextually, the resulting juridical

relationship between the petitioner and Noel Daban is a quasi-contract, an
equitable principle enjoining one from unjustly enriching himself at the
expense of another. (Lacson vs. Lacson, GR No. 150644, Aug. 28, 2006)

JUDGMENT FOR SUPPORT DOES NOT BECOME FINAL: The amount of

support may be reduced or increased proportionately according to the
reduction or increase of the necessities of the recipient and the resources or
means of the person obliged to support. As we held in Advincula v. Advincula

…Judgment for support does not become final. The right to

support is of such nature that its allowance is essentially provisional; for
during the entire period that a needy party is entitled to support, his or
her alimony may be modified or altered, in accordance with his increased
or decreased needs, and with the means of the giver. It cannot be
regarded as subject to final determination.

OPTION OF THE PERSON OBLIGED TO GIVE SUPPORT:

Art. 204. The person obliged to give support shall have the option to fulfill
the obligation either by paying the allowance fixed, or by receiving and
maintaining in the family dwelling the person who has a right to receive
support. The latter alternative cannot be availed of in case there is a moral
or legal obstacle thereto.

SECOND OPTION: The obligor is given the choice as to how he could

dispense his obligation to give support. Thus, he may give the determined
amount of support to the claimant or he may allow the latter to stay in the
family dwelling. The second option cannot be availed of in case there are
circumstances, legal or moral, which should be considered.

In this case, this Court believes that respondent Francisco could not avail
himself of the second option. With the filing of this case, and the allegations
hurled at one another by the parties, the relationships among the parties had
certainly been affected. Particularly difficult for Rica and Rina must be the fact
that those who they had considered and claimed as family denied having any
familial relationship with them. Given all these, we could not see Rica and
Rina moving back here in the Philippines in the company of those who have
disowned them. (Mangonon vs. CA)

ORDERS FOR SUPPORT ARE IMMEDIATELY EXCUTORY AND NOT

STAYED BY APPEAL: Section 4, Rule 39, of the Rules of Court clearly states
that, unless ordered by the trial court, judgments in actions for
support are immediately executory and cannot be stayed by an
appeal. This is an exception to the general rule which provides that the taking
Cesar Nickolai F. Soriano Jr.
11 Arellano University School of Law 2011-0303
REMEDIAL LAW 2: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL and LECTURES OF ATTY. TRANQUIL
 d

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Cesar Nickolai F. Soriano Jr.

12 Arellano University School of Law 2011-0303
REMEDIAL LAW 2: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL and LECTURES OF ATTY. TRANQUIL