Provisional Remedies (PR)
the regional trial court;
Definition
-temporary measures availed of during
the pendency of the action.
- these are ancillary (they are mere
incidents in and are dependent upon the
result of the main action) and auxiliary
remedies, writs and processes available
during the pendency of the action
which may be resorted to by a litigant
to preserve and protect certain rights
and interests therein pending rendition,
for the purpose s of the ultimate effects,
of a final judgement of the case;
PRs include:
1. Rule 57- Preliminary Attachment
(PA);
2. Rule 58- Preliminary Injunction
(PI);
3. Rule 59- Receivership (RC);
4. Rule 60- Replevin (RP)
5. Rule 61- Support Pedente Lite
(SPL);
Jurisdiction:
Provided that the main action is within
their jurisdiction, all inferior courts can
grant all appropriate provisional
remedies, including the appointment of
receivers, with the writ of preliminary
injunction now now available in either
forcible entry or unlawful detainer
cases.
The enforcement of said writs outside
the territorial jurisdiction of the inferior
court, NOLONGER requires the approval of
However, it has been held that the inferior
courts could not grant support pedente lite
since the main case wherein said prov rem.
Could be involved was within the
jurisdiction of CFI. (Baito doctrine-Baito vs.
Sarmiento). BP Blg. 129, requires that the
main case should be within the jurisdiction
of the inferior court in order that that it may
grant the prov. Rem.
Availability:
PA & PI-may be sought at ANY STAGE of
the action BEFORE the entry of final
judgment in the case.
RC-may be filed at ANY STAGE of the
action or proceeding and EVEN AFTER
FINAL JUDGEMENT in order to preserve
the property involved or to aid execution or
otherwise carry the judgment into effect.
RP- must be applied for BEFORE the
defendant files his answer;
SPL- may be sought AT ANY STAGE of
the action, EVEN FOR THE FIRST TIME
on appeal, provided the basis or propriety
thereof was established at trial, but
BEFORE FINAL JUDGMENT in said case
on appeal;
BOND:
PA& PI- amount of bond to be posted by the
applicant is addressed to the SOUND
DISCRETION of the COURT;
RC- fixed by the court, required of the
petitioner whether the appointment of
receiver was applied for ex parte.
RV- bond posted by the applicant is in
amount double the value of the
personal property to be seized;
SPL- no bond is generally required
form applicant;
Rule 57- Preliminary Attachment
Section 1-Grounds upon which
attachment may issue:
1. At the commencement of the action
or at any time before the entry of
judgement;
 Grounds and motion may be
incorporated in a verified
complaint;
2 TYPES OF ATTACHMENT
preliminary PA
 availability(R57 SEC 1)
 purpose-for the temporary
seizure of property of the
adverse party;
final / LEVY ON
EXECUTION-available after the
judgment on the main action has
become executory;
 availability R39 SEC.10
 purpose- for the satisfaction
of the said judgment.
 Where the judgment is already
final and executory a motion for
execution is the remedy R39;
Form and Procedure
1. Regular form-for corporeal
property in the possession of the
party;
2. Garnishment- refers to stocks,
money, credits and other
incorporeal property which belong to the
party but is in the possession or under
the control of a third person.
The purpose of PA:
 to seize the property of the debtor in
advance of final judgment and to
hold it for purposes of satisfying the
said judgment, or to
 Enable the court to acquire
jurisdictionover the action by actial
or constructive seizure of the
propertyin those instances where
personal seervice of summons on the
creditor cannot be effected (Quasha
vs. Juan 1982);
In rem-a proceeding in attachment where
the defendant does not appear;
In personam-defendant appears in the
action.
Where a lien already exists ex. Maritime
lien, the same is equivalent to an attachment,
just like that under real estate mortgage.
ORDER VS WRIT
ORDER- signed only by the judge, is based
on the motion filed therefor and any
opposition thereto and may or may not
contain the specific details but only the
nature of the acts desired by the court;
WRIT- may be signed and issued either by
the clerk of court or the presiding judge. It
shall be based on an order and shall contain
the details required by the order or the
provisions of the law or Rules governing the
same.
Deeds
Register of deeds-office involved
Registry of deeds-the books where the
recordation is made
Registrar of deeds-official in charge
of the office.
2. a plaintiff or any proper party;
 A defendant on his
counterclaim, a co-party in his
crossclaim, and a 3rd party
plaintiff on his 3rd party claim;
3. May have the property of the
adverse party attached as security;
4. for the satisfaction of any
judgement that may be recovered in
the ff. Cases-
a. In an action for the Recovery of
a specified amount of money or
damages, OTHER THAN
MORAL AND EXEMPLARY,
on a COA arising from law,
contract, quasi-contract, delict
or quasi0delict against a party
who is about to depart from th
PH 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
pub. Off., or an off. Of a corp.,
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 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 FRAUD in
contracting the debt or incurring the
obligation upon which the action is
brought, or int he 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;
f. In an action against a party who does
not reside in the ph, or on whom
summons may be served by
publication;
 A foreign corp. Duly licensed to
do business in the ph is not a
non-resident within the meaning
of 1f, its property here may not
be attached on the mere ground
that it is a non-resident(Claude
Neon Lights vs Phil. Advertising
corp.);
 Insolvency of the defendant
debtor is not a ground for the
issuance of the writ of PA
(Aboitiz&Co. V. Prov. Sheriff,
1981);
 Summons by pub.-refers to those
cases in sec.14(service upon
defendant whose identity or
whereabouts are unknown) & 16
(residents temporarily out of the
philippines) of rule 14-summons.
Sec. 2 Issuance and contents of order.
 MAY BE SOUGHT
EX-PARTE-Notice and hearing are
not required in PA;
 Property exempt from execution is
also exempt for attachment or
garnishment.
 Garnishment does not lie against the
funds of the regualr departments ofr
the offices of the gov, but funds off
 public corp are not exempt from
garnishment (PNB VS Pabalan
1978);
Sec. 3. affidavit and bond required
 To be valid the filed must
contain all the allegations
required in sec. 3 of this rule.
Failure to do so, renders the
writ totally defective as the
judge issuing the wit acts in
excess of jurisdiction;
 Where the obligation was duly
secured by a real est. Mort, and
instead of foreclosing filed an
ordinary action to recover the
sum of money involved it is
NOT ENTITLED to a writ of
PA since PA is only authorized
if there is no other sufficient
security for the plaintiff’s claim
(Salgado vs. CA ,1984);
 
2 REQUIREMENTS TO ISSUE
PA
1. AFFIDAVIT AND
2. BOND
no hearing and notice to defendant is
required. because the time it would
take for a hearing to be concluded may
be enought for the defendant to
abscond or dispose of the property.
3 STAGES OF granting PA
1. court issues order granting
application;
2. writ is issued pursuant to the order;
3. the writ is implemented;
For 1 and 2 jurisdiction over the
person of the defendant is not required,
but for 3 or implementation,
jurisdiction over the person is required
otherwise the court has no power and
authority to actin any manner against or
bind the defendant (Cuartero v. CA, 1992.);
Sec. 4 condition of applicant’s bond
 bond posted y the attaching
creditor responds for the damages
and costs which may be adjudged to
the adverse party aising form and by
reason of the attachment;
 there must be a finding IN THE
DECISION of the court imposing
such liability and the costs shall only
be those arising from the attachment
itself AND NOT other judicial cost
that may be imposed against he
losing party;
 the rule is different with respect to a
counter bond for the discharge of an
attachment under sec. 12 which
answrs for the judgment account and
the costs;
generally liability on the attachment
bond is limited to actual damages,
but moral and exemplary damages
may also recovered where such
attachment was alleged and proved
to be malicious. Such liability exist
even if the attachment has been
dissolved, whether by filing of a
counterbond or by proof that the
attachment was irregularly issued, as
long as the court shall finally
adjudge that the attaching party was
not entitled thereto (Calderon vs.
IAC gr 74696).
 No substitution of attachd property
although it may be discharged
wholly or in aprt upon security of a
counter bond offered by the
defendant upon application to the
court with notice to the attaching
creditor and after hearing, if it
 appears that the attachment was
improperly or regularly
issued.
 If the attachment is excessive
the remedy is to apply to the
court for a reduction or partial
discharge and substitution of
the attached properties.
Otherwise the lien acquired
would be lost and this would
constitute deprivation without
due process of law;
Sec 5- manner of attaching property;
 Complements the prohibition
against excessive attachment on
the adverse party;
 It is required that such levy
shall not be made unless
preceded or contemporaneously
accompanied by service of
summons together with a copy
of the complaint, application for
attachment, affidavit and bond
of the applicant, and the writ of
attachment;
Sec. 6 sheriff’s return;
 The attaching officer must serve
a copy of the applicant’s
affidavit so that the adverse
party may contest the grounds
for the attachment, there must
also be a copy of the bond so
that the defendant can except
the sufficiency thereof;
 The deposit or bond required
shall be in the amount fixed by
the court in the order of
attachment,or equal to the value
of the property attached(where
it is shown that he was only
able to locate property of the
opposing party which is
insufficient in value to satisfy
his claim and/or as initially
determined by the court based on the
amount of such claim;
Sec. 7 attachment of real and personal
property; recording thereof.
 Par c&d refer to garnishment, by
such notice of garnishment, the court
acquires jurisdiction over the
garnishee and the latter becon]mes a
forced intervenor in the case. The
garnishee remains in possession of
the property garnished but holds it
subject to the ultimate disposition of
the court. It results in an involuntary
novation by change of creditors
(Tayabas Land co. Vs. Shafurff, 41
Phil 382);
 In the case of salaries, the same can
be attached only at the end of the
month or on the payday provided by
contract or law, as prior thereto, the
same do not constitute money due to
the debtor from his employer. If the
employer is the GOV. The money
prior to payday are public funds and
are exempt from attachment;
 Goods imported into the country
while in the possession of the
collector of customs and before the
duties thereon have been paid,
cannot be attached bec it its in the
exclusive. Jurisd of the customs
auth..
 When the gov. Enters into a
commercial transaction, it abandons
its sovereign capacity and is to be
treated like any other corporation. Its
funds may be garnished provided
that public funds are not subject to
levy or execution if intended for
public purpose, these cannot be
disbursed without lawful
appropriation or statutory authority
as required by P.D 477.
  Even where the immunity of the
state is relaxed, the power of
the courts ends when judgment
is rendered and the STATE is at
liberty to determine whether or
not to appropriate fund for the
satisfaction of the judgment;
 The state is only liable only for
torts caused by its special
agents specifically
commissioned to perform acts
outside their regular duties
(art 2180 CC);
 WHERE THE PROPERTY
ATTACHED BY THE
judgment creditor had been
perviously mortgaged, the
judgement creditor’s lienis
inferior to that of the mortgagee.
What wa attahced by the
judgment creditor was merely
the judgment debtor’s right or
equity of redemption;
 Property legally attached is
property in custodia legis and
cannot be interfered with
without the permission of the
proper court, this is confined to
cases where the property
belongs to the defendant or one
in which the defendant has
proprietary interest;
Sec. 8 effect of attachment of debts,
credits and all other similar personal
property.
 Garnishment is a species of
attachment for reaching
property or credits pertaining or
payable to a judgment debtor. It
results in forced novation by
substitution of creditors;
 It is not necessary to serve
summons upon the garnishee in
order to to acquire jurisdiction
to bind him. All that is necessary is
the service of the writ of
garnishment.
Sec. 9 effect of attachment of interest in
property;
Sec. 10 examination of party whose
property is attached and persons indebted to
him or controlling his property; delivery of
property to sheriff;
 If the garnishee does not admit the
indebtedness or he claims the
property, the controversy must be
determined in an independent action,
the court cannot compel the
garnishee to appearbefore it for
exmination as sec. 10 only applies
where the the garnishee admits
having in his possession property
belonging to the defendant.
Sec. 11 when attached property may be sold
after levy on attachment and before entry f
judgment.
Sec. 12 discharge of attachment upon giving
counterbond
Sec. 13 discharge of attachment on other
grounds.
 A PA shall be discharged when:
1. The debtor has posted a
counterbond or has made the requisite
cash deposit (sec. 12);
2. The attachment was improperly
or irregularly issued (sec. 13) as where
there is no ground for attachment (see
sec. 1) or the affidavit and/or bond filed
therefor are defective or insufficient;
3. The attachment is excessive, but
the discharge shall be limited to the
excess (sec. 13);
4. The property attached is exempt
from execution, hence exempt from
preliminary attachment (sec. 2 and 5);
5. The judgment is rendered against
the attaching creditor (sec. 19);
 Where the attachment is
challenged for having been
illegally or improperly issued,
there ust be a hearing with the
burden of proof to sustain the
writ being on the attaching
creditor.
 Exparte discharge defeats the
purpose of the prov rem.
 Distinction- Bond for
ISSUANCE of
WOPA-responds for damages
resulting from the attachment
(sec. 20) whereas counter bond
for discharge of attachement
-responds for the payment of
the judgment recovered by the
attaching creditor;
 An order for the execution of
the judgment pending appeal
can also be enforced against
said counterbond;
 The merits of the complaint are
not triable in a motion to
discharge an attachment, other
wise an application for the
dissolution of the writ could
force a trial on the merits of the
case on the strength alone of
such motion;
 When the preliminary
attachment is issued upon the
ground which also constitutes
the applicant’s cause of action,
such as an action for money or
property embezzled or
fraudulently converted by hte
defendant, he is not allowed to
move for the dissolution of the
attachment under sec. 13 of this
rule by offering to show falsity
of the averments in the
applicant’s motion and
supporting documents since the
hearing on that motion for
dissolution would be tantamount to a
trial on the merits of the main action
a(Chuidian vs Sandiganbayan Gr
139941);
Sec. 14. proceedings where property
claimed by 3rd person;
 Where the property of a defendant
has bees attached, a 3rd party
claiming an interest therein can
maintain a separate action to
vindicate his interests over the
property and the injunctive relief
granted in the latter case does not
constitute an interference with the
writ of attachment issued by the
other court as ti=his procedure is
sanctioned by sec. 14 rule 57;
Sec. 15 satisafaction of judgment out of
propeerty attachedl return of sherrif.
Sec. 16 balance due collectd upon an
execution; excess delivered to judgment
obligor
Sec. 17 recovery upon the counterbond.
 Where the writ of execution is
returned unsatisfied, the liability of
the counterbond automatically
attaches without the need for the
plaintiff to file a supplemental
pleading to claim payment from the
surety, but he creditor must have
made a demand on the surety for
satisfaction of the judgment and the
surety was given notice and a
summary hearing in the same action
as to his liability under his counter
bond;
 A writ of execution for recovery on
the counterbond issued against a
surety who was not given notice and
opportunity to be heard is invalid;
 If damages were assessed against the
counterbond after notice and hearing,
a writ of execution may be issued
 and the order for its issuanceis
generally not appealable.
Sec. 18 disposition of money deposited
Sec. 19 disposition of attached property
where judgment is for the party against
whom attachment was issued;
 Restitution is provided in sec 18
& 19 without prejudice to the
liability of the attaching creditor
under sec. 20;
Sec. 20 claim for damages on account
of improper, irregular or excessive
attachment.
 Sec 20 provided for the
procedure to be followed in
recovering damages against the
bond posted by the attaching
creditor;
 Such procedure is similar as
that of recovery of damages
against the bond posted by the
applicant in PI, RC or RV;
 The debtor whose property was
attached can proceed against the
bond posted by the attaching
creditor to obtain the WOPA;
 THE application for damages
must be made by a 
counterclaim in the answer or
by motion in the same action. It
should be filed in the trial court
at any time before the trial or
before appeal form the
judgment therein is perfected
or before such judgment
becomes executory, and shall
include all damages sustained
by reason of the attachment
during the pendency of the case
in the trial court;
 If the case is appealed and the
judgment of the appellate court
is in favor of the party whose
property was attached, he can
ask for damages sustained by him
during the pendency of the appeal by
filing a motion in the appellate court
at any time before such judgement
on appeal becomes executory;
 But if he did not apply for damages
in the trial court he cannot ask for
damages during the pendency of the
trial by motion in the appellate court.
 Where the WOPA issued by the trial
court was declared null and void in
an original action before the
appellate court, the damages
sustained by the party whose
property was attached CAN BE
ADJUDICATED on appeal in the
main case by the court of appeals,
since BP BLG 129 grants it the
power to resolve factual issues in
cases falling within its original or
appellate jurisdiction. The appellate
court shall hear and decide the
application and include in its
judgment the award against the
surety or it may refer such claim to
the trial court and allow it to hear
and decide the same;
The surety must be notified of the
application for damages, otherwise
the judgement thereon cannot be
executed against him. Where the
judgement became final and the
surety was not impleaded by such
notices, the surety is relieved form
liability;
 The damages recoverable for a
wrongful attachment is limited to the
amount of the bond;
 The procedure for claiming damages
outlined in sec. 20 is exclusive,
hence such claims for damages
cannot be the subject of an
independent action except;
a. Where the principal case was
dismissed for lack of jurisdiction by
the trial court without giving an
opportunity to the party whose
property was attached to apply for
and prove his claim for damages;
b. Where the damages by reason of
the attachment was sustained by a
third person who is not a party to
the case;
 Claim for damages can only be
sought in the same court where
the bond was filed and the
attachment was issued;
 The proc. In this sec. Is
different from that of sec. 17 of
this rule regarding the liability
of the surety on the
counterbond posted for the
lifting of the preliminary
attachment, under which the
surety may be held liable fter
notice and hearing if execution
of the judgment was returned
unsatified.