Provisional Remedies and SCA Review with Atty.

Jess Zachael Espejo 1

classes are concerned. So we’re good and we’re ok. Do not be worried
PROVISIONAL REMEDIES & SCA REVIEW about it. Kaya nato ni siya. Lahi lang jud and modality. That’s why there’s
with Atty. Jess Zachael Espejo suppose to pilot testing. So let’s now go to,
Ateneo de Davao University | College of Law Class Methodology
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Remember this is only a review which means I can assume that you
know the subject already. I am not teaching this for the first time. So
my job is simply to refine your stock knowledge to prepare you to answer
PROVISIONAL REMEDIES BAR QUESTIONs on this review subject.
Classes will be mostly synchronous, without prejudice to the posting of
November 28, 2020 Part 1 by Jezza Mariz Alo asynchronous lectures. So ang akoang preferred na mode kay
synchronous. I don’t like talking in front of my laptop without nobody
Introduction listening. Di ba when I record lectures in-ana man mahitabo? Wala koi
For today we will discuss Provisional Remedies and Special Civil Actions. audience. I don’t see people. It’s a lonely existence. And we will use the
2020 Remedial Law Bar Syllabus as a guide to lecture content. But if I
This is our First Meeting. feel that there are certain matters that really need to be discussed in
 I’ll talk to you about Important Bar Matters; and greater detail, I will neglect that syllabus especially since it’s a very
 I’ll also talk to you the Methodology for this class; general syllabus. So ang akoa, my concern is you know the current
 And we are going to talk about as part of our main discussion, jurisprudence.
Introduction to Provisional Remedies: So the number of contact hours is supposed to be 12 hours, 6 meetings
a. Nature and Purpose for both provisional remedies and special civil actions. But I don’t really
b. Jurisdiction over Provisional Remedies care about that. Anyway I have you for the entire semester. So I will try
to take my time and make up for it at the end of our classes.
c. Provisional Remedies and Interim Reliefs under
Special Laws and Rules So will I give you examination? Expect that I should give you
examination. Maybe 1 examination for Provisional Remedies and Special
If you have a copy of the Syllabus of the Bar Examination for Provisional
Civil Action. Isa ra. So it’s going to be a mock bar when that happens.
Remedies, that letter C there (Provisional Remedies and Interim Reliefs
under Special Laws and Rules) ulahi unta na siya. It should be at the And I start this semester officially by informing you this new motto of
end. But, in order for me to ensure lang na that I discussed it, unahon mine, Avia Pervia, which means may difficult paths be easy to walk.
nako na siya ug discuss because anyway it can stand independently from Because what we are going to undertake this semester, it’s a review that
Provisional Remedies under the Rules of Court, that is from Rules 57- is remote, it’s not face to face. Looking forward to the bar examinations
61. clearly what lies ahead is a difficult path but our goal here is to ensure
that it is easy to walk. So with that let us go to Provisional Remedies,
Important Bar Matters Rules 57- 61.
 Bar Bulletin No. 15
a. Take not that the cut-off for jurisprudence is Definition and Nature
September 30, 2020; So let’s go the basic definition and nature of Provisional Remedies.
b. While the cut-off for laws, rules and issuances is
 Provisional remedies are writs and processes available during
June 30, 2019.
the pendency of the action which may be resorted to by a
That’s the reason why I asked you the question, because if the cut-off litigant to preserve and protect certain rights and interests
for laws, rules and issuances is June 30, 2019, that actually precedes therein pending rendition, and for purposes of the ultimate
the official issuance of the amended rules. Di ba when did the amended effects, of a final judgment in the case.
rules take effect? MAY 2020. This pandemic year lang na siya nag take
effect. Di siguro dapat if, correct if I’m wrong, but that’s the reason why  They are PROVISIONAL because they constitute temporary
I am confused. But becauses it’s already clarified to me that the measures availed of during the pendency of the action, and
amended rules will be included, then we proceed accordingly. And then they are ANCILLARY because they are mere incidents in and
we have, are dependent upon the result of the main action. (CALDERON
v. ROXAS, G.R. No. 185595, January 9, 2013)
 Bar Bulletin No. 16
a. We have the THREE-EXAMINER POLICY; and the CALDERON v. ROXAS
b. Possible computerized and remote holding of the G.R. No. 185595, January 9, 2013
bar examination. 247 Phil. 681 (1988)
So for the THREE-EXAMINER POLICY, what does that tell you? The
Supreme Court is trying to find a way to ensure that there will be
Facts: Petitioner Ma. Carminia C. Calderon and private respondent
adequate and proper checking of your Bar Examination Answers. So
Jose Antonio F. Roxas, were married on December 4, 1985 and their
kung 3 kabuok ang examiner, it will hasten the checking of your answers
union produced four children. On January 16, 1998, petitioner filed
during your bar examinations.
an Amended Complaint for the declaration of nullity of their marriage
It also tells you that there could be 10 Questions per examiner, so you on the ground of psychological incapacity under Art. 36 of the Family
are to expect quite long bar examination, tag 10 ka pangutana per Code of the Philippines.
examiner with this THREE-EXAMINER POLICY. And it can also ensure
that there will be an equal and an even distribution of topics that will be On May 19, 1998, the trial court issued an Order granting petitioner’s
asked in the bar examinations because of this THREE-EXAMINER application for support pendente lite.
POLICY.
On motion of petitioner’s counsel, the trial court issued an Order
And the Possible computerized and remote holding of the bar dated October 11, 2002 directing private respondent to give support
examination. That is no longer just possible but more importantly in the amount of P42,292.50 per month starting April 1, 1999
strongly becoming probable other than possible because there will be pursuant to the May 19, 1998 Order.
pilot testing of the computerized and remote holding of the bar
examinations. I’m not at liberty to tell you a lot of details regarding that On February 11, 2003, private respondent filed a Motion to Reduce
matter but there will be. You don’t have to spend anything to go to Support citing, among other grounds, that the P42,292.50 monthly
Manila so for the first time it’s going to be regionalized. And it really support for the children as fixed by the court was even higher than
works to our advantage. We’re at our comfort zone. Not to mention the his then P20,800.00 monthly salary as city councilor.
fact that we’ve been doing remote teaching for the longest time already.
So we have at least that 1 Semester of experience in so far as remote After hearing, the trial court issued an Order dated March 7, 2005
granting the motion to reduce support and denying petitioner’s

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 2

motion for spousal support, increase of the children’s monthly  then you have Rule 58, Preliminary Injunction;
support pendente lite and support-in-arrears. Petitioner’s motion for  Rule 59, you have Receivership;
partial reconsideration of the March 7, 2005 Order was denied on  Rule 60, you have replevin;
May 4, 2005.
 then Rule 61, you have Support pendent lite
Issue: Whether the March 7, 2005 and May 4, 2005 Orders on the Among all of them it is only Rule 57 or Preliminary Attachment, that
matter of support pendente lite are interlocutory or final. cannot be considered as a main action as well. Attachment cannot be
considered as a main action because it is merely an incident to an
Ruling: The assailed orders relative to the incident of support
execution of judgment. So, while there can be Preliminary Attachment
pendente lite and support in arrears, as the term suggests, were
and there can be Final Attachment, final attachment is not a main action.
issued pending the rendition of the decision on the main action for
Again it is simply a consequence of an execution of a judgment.
declaration of nullity of marriage, and are therefore interlocutory.
They did not finally dispose of the case nor did they consist of a final But when you look at the rest of them, 58 to 61, take not that all of
adjudication of the merits of petitioner’s claims as to the ground of them can be prosecuted as main actions.
psychological incapacity and other incidents as child custody, support  So for example, you have Rule 58 on Preliminary Injunction.
and conjugal assets. Take note that Injunction can also be prayed for as a main
action. To permanently enjoin somebody from doing
The Rules of Court provide for the provisional remedy of support something. That is a main action that can be coupled with
pendente lite which may be availed of at the commencement of the preliminary injunction as an ancillary remedy or as a
proper action or proceeding, or at any time prior to the judgment or provisional remedy.
final order. On March 4, 2003, this Court promulgated the Rule on
 And then you go down Rule 59 which is Receivership. Take
Provisional Orders which shall govern the issuance of provisional
note that Receivership can also be prosecuted as a main
orders during the pendency of cases for the declaration of nullity of
action.
marriage, annulment of voidable marriage and legal separation.
These include orders for spousal support, child support, child  What about Replevin? Replevin can actually be a main action
custody, visitation rights, hold departure, protection and to recover property, personal property as well.
administration of common property.  And then finally you have Support Pendent Lite which can be
an ancillary remedy and a main action for support.
xxx
These are main actions and at the same time provisional remedies. I
Provisional remedies are writs and processes available during the just want you remember the concept when we discuss Rules 58-61.
pendency of the action which may be resorted to by a litigant to
Purposes
preserve and protect certain rights and interests therein pending
rendition, and for purposes of the ultimate effects, of a final And now purposes. According to Riano, provisional remedies are
judgment in the case. They are provisional because they constitute resorted to by litigants for any or combination of the following reasons.
temporary measures availed of during the pendency of the action,  FIRST PURPOSE: To preserve or protect the rights and
and they are ancillary because they are mere incidents in and are interests while the main action is pending.
dependent upon the result of the main action. The subject orders on Perfect example there would be a Writ of Preliminary Attachment. If
the matter of support pendente lite are but an incident to the main you’re filing for a writ of preliminary attachment, let us suppose that
action for declaration of nullity of marriage. you’re main action there is collection of money. But you’re fearing that
Moreover, private respondent’s obligation to give monthly support in the person from whom you’re suppose to collect is slowly disposing of
the amount fixed by the RTC in the assailed orders may be enforced his properties so that he cannot be reached later on by you, the creditor,
by the court itself, as what transpired in the early stage of the in case that you obtain a favorable judgment on your behalf later on the
proceedings when the court cited the private respondent in contempt trial of the merits. So, pag-abot sa panahon ning daog ka, you cannot
of court and ordered him arrested for his refusal/failure to comply collect anymore since he is slowly defrauding you by disposing of his
with the order granting support pendente lite. A few years later, properties. So, what do you do in order to protect your rights and
private respondent filed a motion to reduce support while petitioner interests while the main action is pending, you pray for a writ of
filed her own motion to increase the same, and in addition sought preliminary attachment. So that’s what happens.
spousal support and support in arrears. This fact underscores the  SECOND PURPOSE: To secure simply the judgment.
provisional character of the order granting support pendente lite.  THIRD PURPOSE: To preserve the status quo or the last and
Petitioner’s theory that the assailed orders have ceased to be peacable condition prior to the litigation.
provisional due to the arrearages incurred by private respondent is  FOURTH PURPOSE: To preserve the subject matter of the
therefore untenable. action such as in the case of Receivership.
 So take note that a provisional remedy is not a cause of action When property is placed on receivership, the only reason for that is to
in itself but is adjunct to a main suit. preserve it. In the end, so that whoever might be adjudged as entitled
to the avails of the suit will be able to realize such judgment.
 It is only ANCILLARY to a main proceeding and presupposes
the existence of a main action. Thus, without such main So if you look at the nature of provisional remedies, they are provisional
action, a provisional remedy cannot exist. and ancillary.

 So, the EFFECT therefore if the main action is dismissed, so Why are they PROVISIONAL? Because they are temporary measures
will the provisional remedy. availed of during the pendency of the action.

Now I want you to pay particular attention to the sentence “a provisional And they are ANCILLARY because they are mere incidents and are
remedy is not a cause of action in itself but is adjunct to a main suit” . dependent upon the result of the main action.
We know the nature of provisional remedies. We know also of the nature So the evidentiary basis, unsa man? Does this require a trial on the
of the main suit. So that’s what you filed, the main suit. Provisional merits? Does it require all your evidentiary facts? Should it be presented
remedy is merely an application or a prayer especially so if it is asked during the trial?
for or applied for with your initiatory pleading (a complaint, an answer
The answer is NO because this is based solely on initial and incomplete
with a counter-claim, cross claim, third-party complaint). So, additional
evidence. The evidence submitted during the hearing on an application
prayer lang siya.
for a provisional remedy is not conclusive or complete for only a
But, please take note that there are provisional remedies that can also sampling is needed in the trial court, an idea on the justification on the
be prosecuted as main actions. So, if we go over Rules 57-61. remedy pending the decision of the case on the merits. So sampling lang
 Di ba we have Rule 57, that is Preliminary Attachment; siya.

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 3

Another way of saying it would be just prima facie evidence on the issue, merely a provisional remedy which means that it is not a final order
whether or not your entitled to the grant of provisional remedy. So will which the law declares to be appealable, which is merely interlocutory.
that evidence standing alone eb sufficient to give you the ancillary Appeal is not available.
remedy that you are asking for. Now let’s go to Let’s imagine the MTC issuing a writ of preliminary injunction in a forcible
Jurisdiction of Provisional Remedies entry case.

November 28, 2020 Part 2 by Chen Lee T. Apura

GENERAL The court which has jurisdiction over the main
RULE: action has jurisdiction over the provisional To prevent the defendants from committing further acts of
remedy applied for. dispossession. Then, it is granted, you are the affected party. Imagine
SIR: all inferior courts can grant provisional your remedy to be a petition for certiorari under Rule 65 which again
remedies provided that the main action is within presupposes that there is no plain, speedy, adequate remedy in the
their jurisdiction ordinary course of law and of course, you have to make the claim that
there is grave abuse of discretion amounting to lack or excess of
FIRST: where the main action is an action for jurisdiction for it to fall under the requisites for the issuance of writ of
support, the provisional remedy of support certiorari under Rule 65.
pendent lite may not be granted by a MTC
because the main action is one within the But where do you file it? Can you go straight to the Supreme Court? You
EXCEPTIONS: jurisdiction of the Family Court; and cannot. Because we have to contend as well with the Doctrine of
SECOND: in criminal actions, as long as the civil Heirarchy of Courts which only comes to play when there is concurrence
aspect is tried together with it, the RTC or MTC of jurisdiction. If you recall, jurisdiction is concurrent: RTC, SC, CA –
having jurisdiction may also issue the remedy of they can all issue writs of certiorari. But again you have to remember
support pendent lite. the Doctrine of Heirarchy of Courts.

Principle to Remember CERTIORARI AGAINST THE MTC

So, the principle we need to rememember here just to simplify things, 1. Order granting or denying a provisional remedy issued by the MTC;
the grant of provisional remedies is not the exclusive province of 2. Any other interlocutory order of the MTC; and
superior courts. Kasabot man siguro ta unsay meaning sa superior courts 3. Judgement of the MTC acting as a small claims court (A.L. Ang
di ba? It’s basic civil procedure. Network Inc. vs. Mondejar, G.R. No. 200804, January 22,
2014)
When you talk about superior courts, it’s a court that exercises
superviosion over a lower court by way of appeal or by way of review. Discussion: Your claim there was 10,000 pesos only and definitely
So if you look at it, the MTC therefore is an inferior court because it became a small claim. It falls under the definition of a small claim.
Napildi ka. Remember that your remedy is certiorari before the
supervises nothing but ants, mga amigas ra jud gina supervise sa MTC.
RTC. You cannot go to the CA from a small claim. Even if you really
But, if you look at the RTC, of course it supervises the MTCs. The same
thing can be said about the CA. Same thing can be said about the SC. wanted to go to the SC because of a small claim, you cannot do it
So they exercise supervision over the lower courts by way of reviewing because of the Doctrine of Heirarchy of Courts.
or modifying the judgment of the inferior court.
Now, in INTERDICTAL actions under Rule 70, Forcible Entry and PROVISIONAL REMEDIES UNDER THE
Unlawful Detainer, the MTC is empowered to grant preliminary
injunction in accordance with the provision of Rule 58 to prevent the
RULES OF COURT
defendant from committing further acts of dispossession against the
plaintiff. 1. Prelminary Attachment (Rule 57)
A possessor deprived of his possession may also present a motion before 2. Preliminary Injunction (Rule 58)
the MTC for the issuance of a writ of preliminary mandatory injunction 3. Receivership (Rule 59)
to restore him on his possession (RULE 70 SECTION 15). 4. Replevin (Rule 60)
5. Support pendente lite (Rule 61)
So we’re very clear about that matter here that the MTC, although it is
an inferior court, can actually grant provisional remedy, specifically Take note that these provisional remedies under Rules 57-61 is not an
preliminary injunction based on Rule 70. exclusive enumeration of the provisional remedies.
But the question is, if you connect what we learned previously, that an
injunction can be both a main action and a provisional remedy, can you
file an action for injunction before the MTC with prayer for a writ of PROVISIONAL REMEDIES AND INTERIM
preliminary injunction, whether mandatory or prohibitory? Can you file RELIEFS UNDER SPECIAL LAWS AND
an injunction before the MTC?
RULES
The answer is actually NO. Why? Because in the case of the Bases
Conversion Development Authority, the Supreme Court categorically
declared that, an action for injunction, main action for injunction is an 1. Provisional remedies of the Family Courts
action incapacle of pecuniary estimation and therefore falls within the 2. Human Security Act
exclusive jurisdiction of the RTC. 3. Anti-Violence against Women and Children Act
And so for main action for Injunction, RTC. 4. Anti-Money Laundering Act
5. Financial Rehabilitation and Insolvency Act
MTC, what do you do? You can still file an Injunction but only as a 6. Precautionary Hold Departure Orders
provisional remedy, an adjunct to a main action, that falls within the
jurisdiction of the MTC. So there’s that disctinction there. Lahi ang main [1] PROVISIONAL REMEDIES OF THE FAMILY COURTS
action, original jurisdiction dira sa RTC, action incapable of pecuniary
estimation. But when you talk about provisional remedy, pwede, The provisional remedies or interim reliefs that can be issued by a Family
because the grant of provisional remedies is not the exclusive province Court are provided by direct provision of the Family Courts Act itself
of superior courts. (R.A. No. 8369) or by implication from other statues or rules that grant
Now, what’s your remedy if you’re the party against whom the jurisdiction over certain cases to the Family Courts.
provisional remedy was issued? Is that appealable? Remember that it is

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 4

Not everything within the jurisdiction of the Family Courts is provided by Basically the same guardian ad litem that we learned in
the Family Courts Act. Subsequent laws would vest jurisdiction over evidence when we were talking about rule on examination of
particular cases from that law to the Family Courts. child witnesses.

A. Family Courts Act (R.A. No. 8369) 2. Placing temporary custody of the child with a suitable
person [Section 4(m)]
Section 7. Special Provisional Remedies. - In cases of violence
That suitable person does not necessarily mean the parents,
among immediate family members living in the same domicile or it can be the grandparents or the DSWD.
household, the Family Court may issue a restraining order against
the accused of defendant upon verified application by the
D. Anti-Violence against Women and Children Act (R.A. No.
complainant or the victim for relief from abuse.
9262)

The court may order the temporary custody of children in all civil Under Section 8 of the law, a protection order is an order issued
actions for their custody. The court may also order support pendente under this act for the purpose of preventing further acts of violence
lite, including deduction from the salary and use of conjugal home against a woman or her child and granting other necessary relief.
and other properties in all civil actions for support.
Discussion: Diri ang focus nato is provisional remedies for
protection orders to benefit the woman and her child if they are
Take note that compared to VAWC, the Family Courts Acts actually victims of violence. Again, kadtong sa FC Act, it can be violence
allows the grant of these restraining orders, etc. even if it is the wife against any family member. Kani women and her child lang.
committing violence against the husband. The law does not distinguish,
compared to VAWC. Because in VAWC, the violence should be against The relief granted under a protection order serve the purpose of
women and their children. safeguarding the victim from further harm, minimizing any
disruption in the victim's daily life, and facilitating the opportunity
B. Rule on Provisional Orders (A.M. No. 02-11-12-SC, March and ability of the victim to independently regain control over her
4, 2003) life.

The Rule on Provisional Orders talks about petitions for declaration There are 3 types of protection orders that may be issued under
of absolute nullity of void marriage or for annulment of voidable this law, namely:
marriage, or for legal separation, also vests upon the Family Courts 1. barangay protection order (BPO)
jurisdiction to grant several interim reliefs such as the following: 2. temporary protection order (TPO)
3. permanent protection order (PPO)
1. Spousal support (Section 2);
2. Child support (Section 3) RELIEFS COMMON TO ALL PROTECTION ORDERS
3. Provisional child custody (Section 4)
4. Visitation rights to parent not awarded provisional custody (a) Prohibition of the respondent from threatening to commit or
(Section 5) committing, personally or through another, any of the acts
5. Hold departure order which prohibits directing the Bureau mentioned in Section 5 of this Act;
of Immigration not to allow the departure of the child from
the Philippines without the permission of the court (Section 6) Discussion: Kadto bitaw emotional, psychological violence.

Discussion: Compared to the hold departure orders in (b) Prohibition of the respondent from harassing, annoying,
different rules, this is the only rule in Philippine law where the telephoning, contacting or otherwise communicating with the
HDO is imposed upon a non-criminal. petitioner, directly or indirectly;

For example, the precautionary HDO which we will be Discussion: Take note when this VAWC law came out, dili pa
discussing later on. Kana siya imposed upon the criminal, uso ang social media. It also contemplates a situation where
ordering the BoI not to let this guy out of the country. But this imong iharass imong asawa or anak through social media
one is not against a criminal, it is imposed upon a child kay even though at that time, wala pa kaayo social media. I know
basig kidnap-on sa parent og dalhon sa laing lugar. that because of cases that we’ve handled.

6. Order of protection (Section 7); and (c) Removal and exclusion of the respondent from the residence
7. Provisional order appointing the applicant or a third person of the petitioner, regardless of ownership of the residence,
as receiver or sole administrator of the common property either temporarily for the purpose of protecting the petitioner,
(Section 8) or permanently where no property rights are violated, and if
respondent must remove personal effects from the residence,
Discussion: Remember that as an effect of these cases, the court shall direct a law enforcement agent to accompany
naa’y dissolution of whatever matrimonial property regime is the respondent to the residence, remain there until
available. You can actually appoint a receiver by way of respondent has gathered his things and escort respondent
provisional order. from the residence;

Take note that this one is not part of the FC Act but it allows Discussion: Two things you have to remember here. The
the grant of several interim reliefs by the FC. removal and exclusion of the respondent, kadtong nag
commit og violence from the home can be temporary or
C. Rule on Commitment of Children (A.M. No. 02-1-19-SC) permanent.

The Family Court may issue interim reliefs such as: When can it be permanent? Where no property rights are
violated.
1. Appointing a guardian ad litem for the child [Section 4(f)]
and Example of a situation where the respondent is removed from
the residence and no property rights are violated:

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 5

Nag-renta lang sila og balay. Og muingon ang bana for (j) Directing the DSWD or any appropriate agency to provide
example na “Ako man tag-iya anang balaya na, dili ko pwede petitioner may need; and
pahawaon diha”, dili na siya ground for him to object to a
permanent exclusion because there is no property rights (k) Provision of such other forms of relief as the court deems
involved. necessary to protect and provide for the safety of the
petitioner and any designated family or household member,
When temporary? Pwede na family home siya. It is a provided petitioner and any designated family or household
conjugal abode. So kung iexclude Kaman or iremove, member consents to such relief.
temporary rana siya in order to protect the petitioner in the
meantime. Any of the reliefs provided under this section shall be granted
even in the absence of a decree of legal separation or
(d) Directing the respondent to stay away from petitioner and annulment or declaration of absolute nullity of marriage.
designated family or household member at a distance
specified by the court, and to stay away from the residence, Take note ha, trend in Bar Examinations especially in Taxation
school, place of employment, or any specified place Law and Remedial Law – Daghan kaayo naka enumerate ana
frequented by the petitioner and any designated family or nga provision, in all probability the focus of the examinee or
household member; reviewee will be to try to remember as much as they could of
the things enumerated but you know, the questions come
(e) Directing lawful possession and use by petitioner of an from that last paragraph. Kana bitaw basig malimtan na nimo
automobile and other essential personal effects, regardless of tungod sa kataas sa provisions. Same thing with tax. Taas
ownership, and directing the appropriate law enforcement kaayo ang provisions sa taxation law and then ang pangutana
officer to accompany the petitioner to the residence of the diay didto sa pinaka-obscure na part sa balaod. You have to
parties to ensure that the petitioner is safely restored to the be careful, considering that your bar chairman is an
possession of the automobile and other essential personal academician.
effects, or to supervise the petitioner's or respondent's
removal of personal belongings; WHO MAY APPLY?

Discussion: I actually had a case like this before where (a) the offended party
nagreklamo ang bana na brad nako, “Nganong gikuha man (b) parents or guardians of the offended party;
akong sakyanan? Nganong gipagamit sa babae?” . That time (c) ascendants, descendants or collateral relatives within the fourth
there was a VAWC case. Because that’s part of the protection civil degree of consanguinity or affinity;
order. So dili siya ka-complain. Because here, regardless of (d) officers or social workers of the DSWD or social workers of local
ownership siya. government units (LGUs);
(e) police officers, preferably those in charge of women and children's
(f) Granting a temporary or permanent custody of a desks;
child/children to the petitioner; (f) Punong Barangay or Barangay Kagawad;
(g) lawyer, counselor, therapist or healthcare provider of the
(g) Directing the respondent to provide support to the woman petitioner;
and/or her child if entitled to legal support. Notwithstanding (h) At least two (2) concerned responsible citizens of the city or
other laws to the contrary, the court shall order an appropriate municipality where the violence against women and their children
percentage of the income or salary of the respondent to be occurred and who have personal knowledge of the offense
withheld regularly by the respondent's employer for the same committed.
to be automatically remitted directly to the woman. Failure to
remit and/or withhold or any delay in the remittance of Kaning letter H, this is what they call “The Concerned
support to the woman and/or her child without justifiable Neighbor/s”. So what if the offended party does not want to file
cause shall render the respondent or his employer liable for the case and then all the while the neighbors knew that the woman
indirect contempt of court; has been subjected to violence. So ang concerned responsible
citizens can actually file for these protection orders.
Discussion: Indirect contempt, what makes it different from
direct contempt? What you have to remember, para sayon TYPES OF PROTECTION ORDERS
lang, everything that falls under indirect contempt would
normally be subsumed under failure to obey or obedience to [1] BARANGAY PROTECTION ORDER
a lawful order of the court. Remember that a protection order
is a lawful order of the court. Ang direct contempt,
SECTION 14. Barangay Protection Orders (BPOs); Who May
misbehavior na siya against the court.
Issue and How. - Barangay Protection Orders (BPOs) refer to the
protection order issued by the Punong Barangay ordering the
(h) Prohibition of the respondent from any use or possession of
perpetrator to desist from committing acts under Section 5 (a) and
any firearm or deadly weapon and order him to surrender the
(b) of this Act. A Punong Barangay who receives applications for a
same to the court for appropriate disposition by the court,
BPO shall issue the protection order to the applicant on the date of
including revocation of license and disqualification to apply for
filing after ex parte determination of the basis of the application. If
any license to use or possess a firearm. If the offender is a
the Punong Barangay is unavailable to act on the application for a
law enforcement agent, the court shall order the offender to
BPO, the application shall be acted upon by any available Barangay
surrender his firearm and shall direct the appropriate authority
Kagawad. If the BPO is issued by a Barangay Kagawad the order
to investigate on the offender and take appropriate action on
must be accompanied by an attestation by the Barangay
matter;
Kagawad that the Punong Barangay was unavailable at the time for
the issuance of the BPO. BPOs shall be effective for fifteen (15) days.
Discussion: Kung mahilig ka og baril and you are a
Immediately after the issuance of an ex parte BPO, the Punong
respondent in a VAWC case, then sorry. A gun has no other
Barangay or Barangay Kagawad shall personally serve a copy of the
purpose than to commit violence, to destroy.
same on the respondent, or direct any barangay official to effect is
personal service.
(i) Restitution for actual damages caused by the violence
inflicted, including, but not limited to, property damage,
medical expenses, childcare expenses and loss of income; The parties may be accompanied by a non-lawyer advocate in any
proceeding before the Punong Barangay.

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 6

Nature: BPOs refer to the protection order issued by the Punong I am not going to discuss anymore Sec. 409 of LGC.
Barangay ordering the perpetrator to desist from committing acts under
Section 5 (a) and (b) of this Act. [2] TEMPORARY PROTECTION ORDER

Barangay Chairman ang mag-issue ani. SECTION 15. Temporary Protection Orders. – Temporary
Protection Orders (TPOs) refers to the protection order issued by the
Issuance: A Punong Barangay who receives applications for a BPO shall court on the date of filing of the application after ex
issue the protection order to the applicant on the date of filing after ex parte determination that such order should be issued. A court may
parte determination of the basis of the application. If the Punong grant in a TPO any, some or all of the reliefs mentioned in this Act
Barangay is unavailable to act on the application for a BPO, the and shall be effective for thirty (30) days. The court shall schedule a
application shall be acted upon by any available Barangay Kagawad. If hearing on the issuance of a PPO prior to or on the date of the
the BPO is issued by a Barangay Kagawad the order must be expiration of the TPO. The court shall order the immediate personal
accompanied by an attestation by the Barangay Kagawad that the service of the TPO on the respondent by the court sheriff who may
Punong Barangay was unavailable at the time for the issuance of the obtain the assistance of law enforcement agents for the service. The
BPO. TPO shall include notice of the date of the hearing on the merits of
the issuance of a PPO.
Sayop ng ginabuhat sa mga Barangay Chairman. Kanang violence sa
household, nag complain karun ang asawa. Nangayo og protection order
or even if wala nangayo og protection order. Ang gibuhat karun sa Temporary Protection Orders (TPOs) refers to the protection order
chairman tungod kay naanad siya sa iyang responsibility under the issued by the court on the date of filing of the application after ex
Katarungang Pambarangay Law na magpatawag for reconciliation, parte determination that such order should be issued.
ipatawag pa niya ang bana before siya nag-issue og protection order or
worse wala siya nag issue og protection order because nag-prevail sa That is similar to the BPO, issued on the same day ex-parte. No need
iyaha ang bana na dili mag issue. That’s wrong. It should be issued ex- for due notice requirement and hearing.
parte on the basis of the application.
A court may grant in a TPO any, some or all of the reliefs mentioned
If the BPO is issued by a Barangay Kagawad the order must be in this Act and shall be effective for thirty (30) days.
accompanied by an attestation by the Barangay Kagawad that the
Punong Barangay was unavailable at the time for the issuance of the Kadtong gi-enumerate nato ganina, kadtong daghan kaayo.
BPO.
[3] PERMANENT PROTECTION ORDER
So naay certification dapat kung ang Barangay Kagawad ang mag-issue.

Effectivity: BPOs shall be effective for fifteen (15) days. SECTION 16. Permanent Protection Orders. – Permanent
Protection Order (PPO) refers to protection order issued by the court
Take note of the significance of that 15 days. The law presumes that 15 after notice and hearing.
days is enough time for the BPO because in the meantime a case can
be filed in court where a TPO may actually be issued. Respondents non-appearance despite proper notice, or his lack of a
lawyer, or the non-availability of his lawyer shall not be a ground for
What if the party or the family members subjected to violence or any rescheduling or postponing the hearing on the merits of the issuance
other applicant there subjected to violence did not file a court case yet, of a PPO. If the respondents appears without counsel on the date of
what should the Barangay Chairman do? The Punong Barangay can the hearing on the PPO, the court shall appoint a lawyer for the
actually file in court for an application for protection order, that is respondent and immediately proceed with the hearing. In case the
actually enough time. Even if dili mag proceed ang petitioner there, the respondent fails to appear despite proper notice, the court shall allow
Barangay Chairman can actually do so. Apil na siya sa mga enumerated. ex parte presentation of the evidence by the applicant and render
judgment on the basis of the evidence presented. The court shall
Service: Immediately after the issuance of an ex parte BPO, the Punong allow the introduction of any history of abusive conduct of a
Barangay or Barangay Kagawad shall personally serve a copy of the respondent even if the same was not directed against the applicant
same on the respondent, or direct any barangay official to effect is or the person for whom the applicant is made.
personal service.

Mag silingan raman ni so kaila na sila. They are in the best position to The court shall, to the extent possible, conduct the hearing on the
serve a copy of the order. merits of the issuance of a PPO in one (1) day. Where the court is
unable to conduct the hearing within one (1) day and the TPO issued
Representation: The parties may be accompanied by a non-lawyer is due to expire, the court shall continuously extend or renew the
advocate in any proceeding before the Punong Barangay. TPO for a period of thirty (30) days at each particular time until final
judgment is issued. The extended or renewed TPO may be modified
Anybody, provided na dili siya lawyer. Under our Katarungang by the court as may be necessary or applicable to address the needs
Pambarangay, bawal ang abogado unless he is a party to the of the applicant.
proceedings before the barangay.
The court may grant any, some or all of the reliefs specified in Section
No-barring effect: The issuance of a BPO or the pendency of an 8 hereof in a PPO. A PPO shall be effective until revoked by a court
application for BPO shall not preclude a petitioner from applying for, or upon application of the person in whose favor the order was issued.
the court from granting a TPO or PPO. The court shall ensure immediate personal service of the PPO on
respondent.
It cannot be used as a defense by the respondent that the court should
not grant a TPO or PPO because there is already a BPO that is pending
or BPO issued already. That is designed by the law for the full protection The court shall not deny the issuance of protection order on the basis
to those who have been subjected to violence. of the lapse of time between the act of violence and the filing of the
application.
Venue: Applications for BPOs shall follow the rules on venue under
Section 409 of the Local Government Code of 1991 and its implementing Regardless of the conviction or acquittal of the respondent, the Court
rules and regulations. must determine whether or not the PPO shall become final. Even in

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 7

a dismissal, a PPO shall be granted as long as there is no clear Respondents non-appearance despite proper notice, or his lack of
showing that the act from which the order might arise did not exist. a lawyer, or the non-availability of his lawyer shall not be a
ground for rescheduling or postponing the hearing on the merits
of the issuance of a PPO. If the respondents appears without
Respondents non-appearance despite proper notice, or his lack of a counsel on the date of the hearing on the PPO, the court shall
lawyer, or the non-availability of his lawyer shall not be a ground for appoint a lawyer for the respondent and immediately proceed
rescheduling or postponing the hearing on the merits of the issuance with the hearing. In case the respondent fails to appear despite
of a PPO. If the respondents appears without counsel on the date of proper notice, the court shall allow ex parte presentation of the
the hearing on the PPO, the court shall appoint a lawyer for the evidence by the applicant and render judgment on the basis of the
respondent and immediately proceed with the hearing. In case the evidence presented. The court shall allow the introduction of any
respondent fails to appear despite proper notice, the court shall allow history of abusive conduct of a respondent even if the same was
ex parte presentation of the evidence by the applicant and render not directed against the applicant or the person for whom the
judgment on the basis of the evidence presented. applicant is made.

Section 16 clearly states na dili ta dapat maghuna-huna sa depensa sa The court shall, to the extent possible, conduct the hearing on the
respondent because even if he does not appear with a lawyer or even if merits of the issuance of a PPO in one (1) day. Where the court is
he already secured a lawyer and is not available, dili na siya ground to unable to conduct the hearing within one (1) day and the TPO
postpone or reschedule the hearing on the merits of the issuance of issued is due to expire, the court shall continuously extend or
PPO. renew the TPO for a period of thirty (30) days at each particular
time until final judgment is issued. The extended or renewed TPO
Remember ha, kung icompare ang TPO og PPO, and TPO issued ex- may be modified by the court as may be necessary or applicable to
parte. Ang PPO is one that follows the issuance of TPO and is only issued address the needs of the applicant.
with notice and hearing. That’s the main distinction.
The court may grant any, some or all of the reliefs specified in
Another, if you look at TPO, there is an initial effectivity of 30 days. Section 8 hereof in a PPO. A PPO shall be effective until revoked
When you talk about interim reliefs, we will go to these when we go to by a court upon application of the person in whose favor the order
TROs as well. There are 2 types of TROs: (1) 72-hour TRO; (2) 20-day was issued. The court shall ensure immediate personal service of
TRO. The 72-hour TRO can actually be extended to 20 days including the PPO on respondent.
the first 72 hours, that can only happen after notice and hearing.
The court shall not deny the issuance of protection order on the
Now what’s the purpose of the issuance of the TRO? It is supposed to basis of the lapse of time between the act of violence and the filing
preserve the status quo until such time when there can be a hearing of the application.
already on the main writ of preliminary injunction. The way Section 15
and 16 is worded, a TPO similar to a TRO that ripens into a writ of Regardless of the conviction or acquittal of the respondent, the
preliminary injunction, ing-ana pud ang mahitabo sa TPO. Because a Court must determine whether or not the PPO shall become final.
TPO is issued for 30 days and then prior to the expiration of the TPO, Even in a dismissal, a PPO shall be granted as long as there is no
mag-hearing na dapat on whether a PPO should be issued. clear showing that the act from which the order might arise did
not exist.
If you look at Section 16 (TPO), this does not require complete evidence.
It is therefore possible as we will see later on that a PPO is issued and Ang section 16 clearly states na dili ta dapat mag huna-huna sa depensa
at the end of the trial and hearings of the case upon presentation of sa respondent. Because even if he does not appear with a lawyer or his
evidence, it may turn out that the respondent is not guilty of violence lawyer is not available, dili na siya ground to postpone or reschedule the
and yet there is a PPO that is issued. We will go into that. hearing on the merits for the issuance of the PPO.

TPO PPO Kung i-compare nimo ang TPO and PPO, the TPO is issued ex parte. Ang
Issued ex-parte Follows the issuance of TPO. PPO is one that follows the issuance of a TPO and is only issued with
Only issued after notice and notice and hearing. That’s the main distinction.
hearing.
Another distinction would be the fact that if you look at TPOs, there is
an initial effectivity of 30 days. Remember when we go to TROs, there
In case the respondent fails to appear despite proper notice, the court are two types of TROs, the 72 hour TRO and the 20 day TRO, a 72 hour
shall allow ex parte presentation of the evidence by the applicant and TRO can actually be extended to 20 days including the first 72 hours,
render judgment on the basis of the evidence presented. The court but that can only happen after notice and hearing.
shall allow the introduction of any history of abusive conduct of a
respondent even if the same was not directed against the applicant What’s the purpose of issuance of the TRO? The 20-day TRO is supposed
or the person for whom the applicantion is made. to preserve the status quo until such time when there can be a hearing
already on the main writ of preliminary injunction.
What does it tell you? Is this something familiar to you? It should be. It
is an exception to one evidentiary principle. This paragraph is an The way Section 15 and Section 16 is worded, a TPO is similar to a TRO
exception to Res Inter Alios Acta Rule specifically the 2nd part: that ripens into a Writ of Preliminary Injunction, ingonana pud ang
evidence of previous acts. Evidence that one did or did not do a mahitabo sa PPO. A TPO is issued for 30 days and then prior to the
expiration of the TPO, mag hearing na dapat as to whether or not a PPO
particular act at one time is not admissible to prove that he did or did
not do the same thing at another time. If you recall that. should be issued.

Section 16 does not require complete evidence. It is possible that a PPO

November 28, 2020 Part 3 by Luke Morgan Codilla
is issued and at the end of trial and hearing of the case, upon
Permanent Protection Orders presentation of all the evidence, it may turn out that the respondent is
not guilty of violence. And yet there is a PPO.
RA 9262. SECTION 16. Permanent Protection Orders. –
“The court shall allow the introduction of any history of abusive conduct
Permanent Protection Order (PPO) refers to protection order
of a respondent even if the same was not directed against the applicant
issued by the court after notice and hearing.
or the person from whom the application is made.” — This should be
familiar to you. It’s an exception to the evidentiary principle of res inter
alios acta rule. Specifically, the 2nd part, “evidence that one did or did

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 8

not do a particular thing at one time is not admissible to prove that he transportation and communication equipment, supplies and other
did or did not do the same thing at another time.” implements, and property of whatever kind and nature belonging:
(1) to any person suspected of or charged before a competent
“The court shall, to the extent possible, conduct the hearing on the Regional Trial Court for the crime of terrorism or the crime of
merits of the issuance of a PPO in one (1) day. Where the court is unable conspiracy to commit terrorism; (2) to a judicially declared and
to conduct the hearing within one (1) day and the TPO issued is due to outlawed organization, association, or group of persons; or (3) to a
expire, the court shall continuously extend or renew the TPO for a period member of such organization, association, or group of persons shall
of thirty (30) days at each particular time until final judgment is issued. be seized, sequestered, and frozen in order to prevent their use,
The extended or renewed TPO may be modified by the court as may be transfer, or conveyance for purposes that are inimical to the safety
necessary or applicable to address the needs of the applicant.” — It is and security of the people or injurious to the interest of the State.
perpetually extendible until final judgment is issued.
The accused or a person suspected of may withdraw such sums as
This is one of the main differences between a TRO and a TPO. may be reasonably needed by the monthly needs of his family
Remember that a TRO maximum niya nga effectivity is only 20 days, if including the services of his or her counsel and his or her family's
it issued by a trial court like the RTC. If you talk about the SC or the CA, medical needs upon approval of the court. He or she may also use
lahi na ang effectivity sa TRO. The only exception to that is if a TRO can any of his property that is under seizure or sequestration or frozen
be predicated on a different ground than the ground used for the because of his/her indictment as a terrorist upon permission of the
issuance of the initial 20 day TRO. That’s the only time that there can court for any legitimate reason.
be an “extension”, but not really an extension of a TRO. The rule is a
TRO is non-extendible. Any person who unjustifiably refuses to follow the order of the proper
division of the Court of Appeals to allow the person accused of the
But a TPO can be extended indefinitely. So that’s a big difference crime of terrorism or of the crime of conspiracy to commit terrorism
between the two. to withdraw such sums from sequestered or frozen deposits,
placements, trust accounts, assets and records as may be necessary
“Regardless of the conviction or acquittal of the respondent, the Court for the regular sustenance of his/her family or to use any of his/her
must determine whether or not the PPO shall become final. Even in a property that has been seized, sequestered or frozen for legitimate
dismissal, a PPO shall be granted as long as there is no clear showing purposes while his/her case is pending shall suffer the penalty of ten
that the act from which the order might arise did not exist.” — Mo daog (10) years and one day to twelve (12) years of imprisonment.
man ka or mapildi, like what if criminal case siya for VAWC. So dapat
proof beyond reasonable doubt. With respect to the conviction of the Seizure and sequestration of assets of certain persons or entities are
crime, the court is not satisfied beyond reasonable doubt that the authorized including those of a person “suspected” of terrorism. Asa ang
respondent is guilty, or that the accused is guilty, still, the court has that hustisya diha? What if I’m suspected of terrorism? Pwede na ma
added option of making the PPO final, even if walay finding of guilt of sequester akong assets.
the accused.
Right to travel of the person charged may be subjected to restrictions
The law is worded or drafted to favor women and their children. Full even before judgment under certain conditions —
protection jud dapat ang ihatag.
SEC. 26. Restriction on Travel. - In cases where evidence of guilt
Another distinction between a TRO, Injunctive Writ, and PPO. is not strong, and the person charged with the crime of terrorism or
Remember that a TRO can ripen into a Writ of Preliminary Injunction conspiracy to commit terrorism is entitled to bail and is granted the
and a Writ of a Preliminary Injunction can ripen into a Final Injunction. same, the court, upon application by the prosecutor, shall limit the
But remember that in all of those situations, the applicant/plaintiff must right of travel of the accused to within the municipality or city where
win. Pag apply, niya og TRO he must be able to show the requisites of he resides or where the case is pending, in the interest of national
the TRO. And then, when it ripens into a Writ of Preliminary Injunction, security and public safety, consistent with Article III, Section 6 of the
again naa na pud tong mga requisites. The applicant must win again in Constitution. Travel outside of said municipality or city, without the
that motion. And finally, he must win the case to obtain favorable authorization of the court, shall be deemed a violation of the terms
judgment in order to obtain a Writ of Permanent Injunction. and conditions of his bail, which shall then be forfeited as provided
under the Rules of Court.
When you look at Protection Orders, it starts out as a TPO, which can
be extended over time until judgment in the case is rendered by the He/she may also be placed under house arrest by order of the court
court. So in perpetuity until judgment. It can also ripen into a PPO, and at his or her usual place of residence.
the PPO can become a final PPO, even if technically speaking, the
petitioner or alleged victim of violence does not win. While under house arrest, he or she may not use telephones,
cellphones, e-mails, computers, the internet or other means of
That’s a good question to ask — Distinguish Injunctive Writs under Rule communications with people outside the residence until otherwise
58 and Protective Writs under R.A. 9262. ordered by the court.

Summary: The restrictions abovementioned shall be terminated upon the

acquittal of the accused or of the dismissal of the case filed against
Temporary Protection Order Temporary Restraining him or earlier upon the discretion of the court on motion of the
[RA 9262] Order [Rule 58] prosecutor or of the accused.
30 days initial effectivity 72 hours; extendible to 20 days
May be extended GR: Non-extendible [Exc: Examination of Bank Deposits, Accounts, and Records of person charged
different ground] or suspected of a crime under RA 9372 (Sec. 27) —
PPO may become final Plaintiff needs to win the case to
regardless of guilt of accused have Final Injunctive Writ issued SEC. 27. Judicial Authorization Required to Examine Bank
Deposits, Accounts, and Records . - The provisions of Republic
Act No. 1405 as amended, to the contrary notwithstanding, the
Human Security Act (RA 9372) justices of the Court of Appeals designated as a special court to
handle anti-terrorism cases after satisfying themselves of the
existence of probable cause in a hearing called for that purpose that:
SEC. 39. Seizure and Sequestration . - The deposits and their (1) a person charged with or suspected of the crime of terrorism or,
outstanding balances, placements, trust accounts, assets, and conspiracy to commit terrorism, (2) of a judicially declared and
records in any bank or financial institution, moneys, businesses, outlawed terrorist organization, association, or group of persons; and

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 9

(3) of a member of such judicially declared and outlawed provision shall not apply to deposits and investments made prior to
organization, association, or group of persons, may authorize in the effectivity of this Act.
writing any police or law enforcement officer and the members of
his/her team duly authorized in writing by the anti-terrorism council Again, the AMLC issues that without any countervailing evidence.
to: (a) examine, or cause the examination of, the deposits, Suspicion lang gyud na sila, probable cause.
placements, trust accounts, assets and records in a bank or financial
institution; and (b) gather or cause the gathering of any relevant
information about such deposits, placements, trust accounts, assets, Financial Rehabilitation And Insolvency
and records from a bank or financial institution. The bank or financial Act
institution concerned, shall not refuse to allow such examination or
to provide the desired information, when so, ordered by and served
with the written order of the Court of Appeals. Commencement Order: Declares that the debtor is under
rehabilitation, appoints a rehabilitation receiver, and prohibit the
Notwithstanding the provisions of the Bank Secrecy Law, for as long as debtor’s suppliers of goods and services from withholding the supply of
you are suspected of terrorism. Now, I want you to take note of the fact goods or services in the ordinary course of business for as long as the
that the Human Security Act, gi repeal n ani sya sa Anti-Terrorism Law. debtor makes payments for the services or goods supplied after the
issuance of the Commencement Order, among others.
But it is facing considerable challenge before the Supreme Court, so wala
sa ko nag focus sa Anti-Terrorism Law mismo. Anyway, if at all, that is Im sure you have discussed this already in Corporation Law, wala kay
covered by your Criminal Law Review. But my focus here is the mabuhat if you are a supplier and wala ka nabayaran. You cannot refuse
Provisional Remedies only. to deliver these goods na gikinahanglan sa entity under rehabilitation,
that’s part of a commencement order.

Anti-Money Laundering Act (RA 9160) Stay or Suspension Order: Shall (1) suspend all actions or
proceedings, in court or otherwise, for the enforcemenrt of claims
against the debtor; (2) suspend all actions to enforce any judgment,
Freeze Order attachment or other provisional remedies against the debtor; (3) prohibit
the debtor from selling, encumbering, transferring or disposing in any
Sec. 10. Authority to Freeze. — Upon determination that probable manner any of its properties except in the ordinary course of business;
cause exists that any deposit or similar account is in any way related and (4) prohibit the debtor from making any payment of its liabilities
to an unlawful activity, the AMLC may issue a freeze order, which outstanding as of the commencement date.
shall be effective immediately, on the account for a period not
exceeding fifteen (15) days. Notice to the depositor that his account Kung mao na iyang negosyo, magbaligya, then pwede siya mag baligya.
has been frozen shall be issued simultaneously with the issuance of But all its other assets cannot be disposed of if it is not in the ordinary
the freeze order. course of business.

The depositor shall have seventy-two (72) hours upon receipt of the
notice to explain why the freeze order should be lifted. The AMLC Precautionary Hold Departure Order (A.M.
has seventy-two (72) hours to dispose of the depositor’s explanation.
If it fails to act within seventy-two (72) hours from receipt of the No. 18-7-0-5-SC)
depositor’s explanation, the freeze order shall automatically be
dissolved. The fifteen (15)-day freeze order of the AMLC may be Precautionary Hold Departure Orders is actually not by virtue of a statute
extended upon order of the court, provided that the fifteen (15)-day but rather by an issuance of the Supreme Court. (A.M. No. 18-7-0-5-SC)
period shall be tolled pending the court’s decision to extend the Definition.
period.
Definition: A PHDO is an order in writing issued by a court commanding
No court shall issue a TRO or writ of injunction against any freeze the Bureau of Immigration to prevent any attempt by a person
order issued by the AMLC except the Court of Appeals or the Supreme suspected of a crime to depart from the Philippines, which shall be
Court. issued ex parte in cases involving crimes where the minimum of the
penalty is at least six years and one day.
So pwede i-freeze imong bank deposits by the AMLC. Take note that the
AMLC is not even a court but it can issue a freeze order. This is issued So prision mayor, 6 years and one day. Take note that the issuance of
by independent determination by the AMLC. This is bereft of any the court here is ministerial. For as long as the minimum penalty
countervailing evidence. But gi-suspetsahan na ka, goodbye. prescribed is 6 years and one day. The court cannot say that “I will not
grant it.” As a general rule lang. Kay there are exceptions.
So dili pwede mag TRO ang RTC, labin na ang MTC. Unsa ni siya nga
principle sa Civil Procedure? Pag no TRO or Injunction against certain Take note that a PHDO has the effect of restraining the person
bodies, or probably courts of equal rank. That’s the Doctrine of suspected of committing a crime from departing from the Philippines.
Continuity of Jurisdiction or the Doctrine of Non-Interference. The RTC It’s in the nature of an injunctive writ.
cannot enjoin a co-equal RTC. It cannot issue a TRO against the SEC.
What type of injunctive writ would that be? Because it restrains
somebody from committing or doing something, is it a prohibitory
Examination Order. injunction? No. Because it is actually a command upon the Bureau of
Immigration, making it similar to a Mandatory Injunction. It’s a
SEC. 11. Authority to Inquire into Bank Deposits. — command, and it is the Bureau of Immigration that restrains a person
Notwithstanding the provisions of Republic Act No. 1405, as from committing something. Although the ultimate effect would be to
amended; Republic Act No. 6426, as amended; Republic Act No. prohibit somebody from departing from the Philippines.
8791, and other laws, the AMLC may inquire into or examine any
particular deposit or investment with any banking institution or non- November 28, 2020 Part 4 by Lara Delos Santos
bank financial institution upon order of any competent court in cases
of violation of this Act when it has been established that there is A PHDO will prevent a person suspected of a crime from departing the
probable cause that the deposits or investments involved are in any country. Upon motion by the complainant, during the pendency of a
way related to a money laundering offense: Provided, That this preliminary investigation for a criminal complaint, a prosecutor may
apply for a PHDO with the proper Regional Trial Court when:

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 10

The AMLC may issue examination and freeze orders upon persons
(a) There is high probability that the subject will depart from the suspected of the crime of Financing Terrorism as defined in Republic Act
Philippines to evade arrest and prosecution; 10168.
(b) There is a preliminary finding by the RTC Judge of probable
cause; and Corporate Cases
(c) The crime is punishable with imprisonment of at least 6 years
and 1 day.  Under Rule IC, Section 4-1 of the 2016 Rules of Procedure
The PHDO may be issued without notice and hearing (ex parte). of the Securities and Exchange Commission, the
Commission en banc is empowered to issue a cease and
The respondent may file a verified motion for temporary lifting of the desist order (CDO) or an injunction.
PHDO before the RTC which issued the PHDO upon the following
grounds:  The Securities and Exchange Commission, under Section
179(f) of Republic Act No. 11232, or the Revised
(a) There is doubt that probable cause exists based on the Corporation Code of the Philippines, has the power to issue
complaint- affidavit and the evidence that he will present; and cease and desist orders ex parte to prevent imminent fraud
(b) He is not a flight risk. or injury to the public.

The respondent may also ask the issuing court to allow him to leave the This is what they should have used for those KAPA before it blew into a
country upon his posting of a bond. big mess.

To my mind that is an oxymoron, a contradiction of terms. You are not Rules of Procedure for Corporate Rehabilitation
a flight risk but what you are actually going to do is to fly. You want the A Stay Order may be issued directing among others the stay of
PHDO to be lifted because you want to fly and yet you have to prove enforcement of all claims whether for money or otherwise, and whether
that you are a flight risk in order for you to fly. such enforcement is by court action or otherwise against the debtors
and its persons not solidarily liable with the debtor.
What is the definition of flight risk? You want to fly to another country
but do not have an intention to come back. Nothing much there. I don’t think this will come out in the bar exams.

Rules of Procedure for Environmental Cases

PROVISIONAL REMEDIES FROM OTHER (A.M. No. 09-6-8-SC)
LAWS OR RULES The Rule Provides for the Writs of Kalikasan and Continuing Mandamus
which are specifically denominated as special civil actions and not
provisional remedies. However, it should be noted that there is a
Interim Reliefs under WRIT OF AMPARO (A.M. No. 07-9-12-SC; 25 provisional remedy embedded in Part III, Rule 7, Section 5 thereof which
September 2007) provides that the issuance of a Writ of Kalikasan may include the
issuance of a cease and desist order and other temporary reliefs
 Temporary Protection Order (TPO) effective until further order.
 Witness Protection Order (WPO)
 Inspection Order Provisional Remedy Based on Equity
 Production Order One that is ruled by the Supreme Court based on its equity jurisdiction.
This is the Provisional Deposit Order.
Provisional Remedies in Criminal Actions (Rule 127)
[1] Deposit (REYES versus LIM, G.R. No. 134241, August 11, 2003)
 Section 1 provides that the provisional remedies in civil  Cross Reference: Judicial Deposit
actions, insofar as they are applicable, may be availed of in
connection with the civil action deemed instituted with the [2]Also known as SEQUESTRATION
criminal action.  PRIMARY PURPOSE: to maintain status quo during the
pendency of litigation or to insure the rights of parties to
 Section 2 further provides that, when the civil action is property.
properly instituted in the criminal action as provided in Rule
111, the offended party may have the property of the Civil Code Provisions
accused attached as security for the satisfaction of any
judgment that may be recovered from the accused [1] Art. 2005. A judicial deposit or sequestration takes place when an
attachment or seizure of property in litigation is ordered. (1785)
(a) When the accused is about to abscond from
the Philippines; [2] Art. 2006. Movable as well as immovable property may be the object
(b) When the criminal action is based on a claim of sequestration. (1786)
for money or property embezzled or
fraudulently misapplied or converted to the My question is, “is this the same as a Provisional Deposit Order that is
use of the accused who is a public officer, issued by courts based on its equity jurisdiction?” The answer is No.
officer of a corporation, attorney, factor, They operate quite similarly but its not really the same.
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) When the accused has concealed, removed, or REYES vs. LIM, et al.
disposed of his property, or is about to do so; G.R. No. 134241, August 11, 2003
and
(d) When the accused resides outside the Reyes entered into a Contract to Sell with Lim whereby Reyes agreed to
Philippines. sell to Lim a parcel of land under the following terms:

Terrorism Financing (R.A. 10168) 1) Total purchase price is Php 28,000,000

2) The down payment is Php 10,000,000, paid to Reyes upon signing of
the contract.

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3) The balance of Php 18,000,000 shall be paid on or before March 8, part if he will be allowed to keep the money. That is why the Supreme
1995 but only if the tenants or occupants of the property have vacated Court said that it is okay to deposit the money to prevent unjust
the same. enrichment on the part of Reyes.

Reyes claimed that he had difficulty in ousting the tenants such that, on Why am I emphasizing this? Its because there is a very recent case that
March 9, 1995, Reyes offered to return the Php 10 million down payment revisits the ruling in Reyes vs. Lim that allows the court to order judicial
to Lim, which Lim rejected. Upon verification, Lim found out that Reyes deposit.
had already sold the property to Line One Foods Corporation on March
1, 1995 for Php 16,782,840. ANALYSIS

Reyes filed a Complaint for annulment of contract and damages against PROVISIONAL VERSUS JUDICIAL
Lim. On March 6, 1997, Lim requested in open court that Reyes be REMEDIES DEPOSIT
ordered to deposit the Php 10 million down payment with the cashier of in general in REYES vs. LIM
the Regional Trial Court of Paranaque. The trial court granted this
motion. Preservation or PURPOSE Preservation or
protection of litigants’ protection of
Reyes questions this order on the ground that requiring him to deposit rights and interests litigants’ rights and
the Php 10 million down payment is not among the provisional remedies pending rendition, and interests (to the
enumerated in Rule 57 to 61 of the 1997 Rules on Civil Procedure. for purposes of the downpayment)
ultimate effects, of a pending rendition,
If you look at Rules 57 to 61, it cannot be: final judgement. and for purposes of
a) Preliminary Attachment- there has to be a prayer or a motion. Lim the ultimate effects,
did not do this. of a final judgment
b) Injunction- not applicable (rescission_.
c) Receivership- not applicable
d) Replevin- not applicable
e) Support Pendente Lite- not applicable
In LORENZO SHIPPING CORPORATION versus VILLARIN, ET.
Reyes argues that a court cannot apply equity and require deposit if the AL.. G.R No. 175727, March 06, 2019, the Supreme court stated that
law already prescribes the specific provisional remedies which do not a deposit order is an extraordinary provisional remedy whereby money
include deposit. Reyes invokes the principle that equity is applied only or other property is placed in custodia legis to ensure restitution to
in the absence of, and never against, statutory law or judicial rules of whichever party is declared entitled thereto after court proceedings. It
procedure. is extraordinary because its basis is not found in Rules 57 to 61 of the
Rules of Court on Provisional Remedies but rather, under Sections 5(g)
Admittedly, it would have been different had Lim, in filing his answer, and 6 of Rule 135 of the same Rules pertaining to the inherent power of
diba the main case here is Annulment of Contract and Damages, when every court “to amend and control its process and orders so as to make
he filed his answer, he could have set up a counter claim for the Php 10 them comfortable to law and justice,” as well as to issue “all auxiliary
million and asked the court for a Preliminary Attachment for the Php 10 writs, processes and other means necessary” to carry its jurisdiction into
million. But he did not do this. effect.

HELD: The instant case, however, is precisely one where there is a To elucidate further, provisional deposit orders can be seen as falling
hiatus in the law and in the Rules of Court. If left alone, the hiatus will under two general categories.
result in unjust enrichment to Reyes at the expense of Lim. The hiatus
may also imperil restitution, which is a precondition to the rescission of 1. In the first category, the demandability of the money or other
the Contract to Sell that Reyes himself seeks. This is not a case of equity property to be deposited is not or cannot - because of the nature of the
overruling a positive provision of law or judicial rule for there is none relief sought - be contested by the party-depositor.
that governs this particular case. This is a case of silence or insufficiency
of the law and the Rules of Court. In this case, Article 9 of the Civil Code (When the person who possess property or the money cannot really
expressly mandates the courts to make a ruling despite the "silence, contest retention of the property because he doesn’t have the right. He
obscurity or insufficiency of the laws." This calls for the application of does not dispute.)
equity, which "fills the open spaces in the law."
2. In the second category, the party-depositor regularly receives
Thus, the trial court in the exercise of its equity jurisdiction may validly money or other property from a non-party during the pendency of the
order the deposit of the P10 million down payment in court. The purpose case, and the court deems it proper to place such money or other
of the exercise of equity jurisdiction in this case is to prevent unjust property in custodia legis pending final determination of the party truly
enrichment and to ensure restitution. Equity jurisdiction aims to do entitled to the same (Lorenzo v. Villarin, 2019).
complete justice in cases where a court of law is unable to adapt its
judgments to the special circumstances of a case because of the (This is when naay nag-away. Say, for example, in an interpleader action
inflexibility of its statutory or legal jurisdiction. Equity is the principle by or action for recovery of possession. It can be that the plaintiff is seeking
which substantial justice may be attained in cases where the prescribed to recover possession of property that is being rented by other people.
or customary forms of ordinary law are inadequate. So nay periodic rent payments. The question here is that the court is
not sure as to which among the two is entitled to the rental payments.
But clearly there is the fact of periodic rental payments. In an
Thus, since Reyes is demanding to rescind the Contract to Sell, he interpleader action, the plaintiff here is not sure which among the two
cannot refuse to deposit the P10 million down payment in court. Such defendants is entitled to rent. There is controversy.)
deposit will ensure restitution of the P10 million to its rightful owner.
The cases of Eternal Gardens Memorial Parks Corp. v. First
Discussion: What is the formula here? Why was it okay for the Trial Special Cases Division, Intermediate Appellate Court and Reyes
Court to order the deposit? The formula here is very simple—the person v. Lim fall under the first category. Eternal Gardens involved an
who owes the money, Reyes, katong nakadawat ug kwarta, does he interpleader case where the plaintiff-buyer (Eternal), who was seeking
dispute the Php 10 million? Diba gioffer na niya ug balik? Isnt he the to compel the litigation of the two conflicting claims to the property in
one who filed for annulment of contract in the first place? Is it not a fact question, refused to comply with an order to deposit in custodia legis
as well that he sold the property to another person making the Php 10 the installment payments for the disputed property. In upholding the
million totally unjust for him to keep. It will be unjust enrichment on his provisional deposit order, the Court ruled that Eternal's disavowal of

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interest in the disputed property, and the deposit of such disputed

money or property with the court, are essential elements of an
interpleader suit. Thus, Eternal was ordered to deposit the installment
payments with the trial court. In Reyes, the Court upheld a provisional
deposit order covering the down payment for a parcel of land pending
the resolution of the case for annulment of contract, viz.:

[S]ince Reyes is demanding to rescind the Contract to Sell, he cannot

refuse to deposit the P10 million down payment in court. Such deposit
will ensure restitution of the P10 million to its rightful owner. Lim, on the
other hand, has nothing to refund, as he has not received anything
under the Contract to Sell.

In both Eternal Gardens and Reyes, the nature of the relief sought
precluded the depositor-party from contesting the demandability of the
amounts sought to be deposited. Stated differently, the depositor-
parties effectively resigned their respective interests over the amounts
deposited. The most equitable solution to prevent unjust enrichment in
such cases, therefore, is a provisional deposit order, so that the amount
deposited may easily be turned over to whoever would be adjudged
properly entitled thereto.

The second category of cases involve provisional deposit orders covering

sums regularly received from non-parties to the case by the depositor-
party during the pendency of the proceedings. These are turned over to
the custody of the court since the entitlement of the depositor-party
thereto remains disputed, and to ensure the timely transfer of such sums
to whoever would be adjudged properly entitled thereto. In Go v. Go,
Bustamante v. CA, and Province of Bataan, the Court upheld the trial
court's order directing the depositor-parties therein, who regularly
received rental payments from the lessees of the disputed properties, to
deposit such rental payments with the court pending the resolution of
the issue of ownership of the disputed properties. A common thread
running through these cases is the existence of an agreement or a
juridical tie, which either binds the depositor-party and the party to be
benefited by the deposit; or forms the basis for the regular receipt of
payments by the depositor-party. In Eternal Gardens, Eternal had a
contract of sale with one of the interpleading parties; while in Reyes,
Reyes had a contact to sell with Lim; and in Go, Bustamante, and
Province of Bataan, the regular payments received by the depositor-
parties are based on lease agreements.

[1] Lorenzo Shipping involved a situation where the creditor seeks to

attach properties of his debtor’s debtor, without establishing a juridical
link between the two debts. Provisional deposit cannot be ordered.

[2] When there is no juridical tie between the oblige-plaintiff and the
beneficiary of the services he has rendered; and the obligor-defendant
failed to set up a cross-claim to connect the two parties with whom it
had separate contracts, a deposit order would only amount to a
circumvention of the rules on preliminary attachment and an unjust
imposition on the alleged beneficiary who is not a party to the contract
sought to be enforced.

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determined by the allegations of the complaint regardless of the

RULE 57 defenses in the answer (exception RA 90700 or Carper law which
PRELIMINARY ATTACHMENT amended RA 6657, where there is an allegation in the answer of the
defendant in the case filed before the Court that it is an agrarian dispute
and that he is farmer or farm worker, then the Court should refer the
December 5, 2020 Part 1 by Francis Jeric Emuy matter to the department of agrarian reform to determine if he is a
farmer and if its an agrarian dispute. Next there is jurisdiction over the
SITUATION parties. There is no problem with jurisdiction over the person of the
Suppose that Cersei, a businesswoman who has a lot of assets but who plaintiff because the court acquires jurisdiction over his person the
lacks liquidity, obtained a loan in the amount of 10 billion from Iron moment he files his complaint. On the other hand, the Court acquires
Bank, payable on or before August 15, 2021. Cersei was unable to pay jurisdiction over the defendant by virtue of his voluntary appearance or
despite repeated demands, prompting Iron Bank to file a collection case submission to the authority of the court or by the effect of compulsory
against her. However, at about the same time as the filing of the case, processes such as the service of summons. If the defendant cannot be
Iron Bank observed that Cersei seems to be gradually disposing of her summoned for whatever reason, the problem with that is the case
assets. Iron Bank is afraid that, even if it prevails in the case, there cannot proceed. Any order/ judgment rendered against a defendant who
would not be enough of Cersei's assets left out of which a favorable was not summoned or improperly summoned would be a nullity.
Judgment may be satisfied. Is there anything that Iron Bank can do in
the meantime to ensure that it will be able to obtain satisfaction in the What is the remedy of a plaintiff who cannot bring the defendant in the
even that it wins the case against Cersei? jurisdiction of the Court? In this situation, jurisdiction over the person
can now be substituted by jurisdiction over the res. There is no problem
The situation here is that is covered by Rule 57 is that there is an if the action is in rem or quasi in rem. If it is an action in personam, you
obligation and the creditor fears that it might not be complied in the need to convert the action to an in rem or quasi in rem. The best way
event that he wins the case. Is there a way to ensure that he will to do it is to ask for a writ of preliminary attachment. Then finally, there
eventually get paid by the debtor. The Bank here should apply for a writ is jurisdiction over the issues.
of preliminary attachment under Rule 57.
CONSTRUCTION
WRIT OF PRELIMINARY ATTACHMENT DEFINED The rules on the issuance of a writ of attachment must be construed
strictly against the applicant. This stringency is required because the
LORENZO SHIPPING CORP. v. VILLARIN remedy of attachment is harsh, extraordinary and summary in nature.
GR. no 178713, March 06, 2019
WATERCRAFTVENTURE CORP. v. WOLFE
It is a provisional remedy issued upon order of the court where an action G.R. No. 181721, September 9, 2015
is pending to be levied upon the property or properties of the defendant
therein, the same to be held thereafter by the Sheriff as security for the The writ should be resorted to only when necessary and as a last remedy
satisfaction of whatever judgment might be secured in said action by because it exposes the debtor to humiliation and annoyance. It must be
the attaching creditor against the defendant. granted only concrete and specific grounds and not merely on general
averments quoting the words of the rules. Since attachment is harsh,
Take note, it is issued by the court where the action is pending. The extraordinary, and summary in nature, the rules on the application of a
question is who may ask for it or who may be considered a claimant. writ of attachment must be strictly construed in favor of the defendant.
General rule is that the claimant is the plaintiff but it does not necessarily
mean that only the plaintiff can ask for it. The defendant may also ask Section 1. Grounds upon which attachment may issue . — At the
for it to secure his claim covered in the counterclaim. It can also be commencement of the action or at any time before entry of judgment,
asked for under a cross-claim by a defending party against his fellow a plaintiff or any proper party may have the property of the adverse
defending party. It can also be asked by virtue of a complaint in party attached as security for the satisfaction of any judgment that
intervention. Any claiming party can ask for a writ of preliminary may be recovered in the following cases:
attachment under Rule 57.
(a) In an action for the recovery of a specified amount of money or
NATURE damages, other than moral and exemplary, on a cause of action
By its nature, preliminary attachment is an ancillary remedy applied for arising from law, contract, quasi-contract, delict or quasi-delict
not for its own sake but to enable the attaching party to realize upon against a party who is about to depart from the Philippines with
the relief sought and expected to be granted in the main or principal intent to defraud his creditors;
action. It is a measure auxiliary or incidental to the main action. As such,
it is available during its pendency which may be resorted to by the (b) In an action for money or property embezzled or fraudulently
litigant to preserve and protect certain rights and interests during the misapplied or converted to his own use by a public officer, or an
interim, awaiting the ultimate effects of a final judgment in the officer of a corporation, or an attorney, factor, broker, agent, or clerk,
case (LIM v SPS. LAZARO, G.R no. 186734, July 3, 2013). in the course of his employment as such, or by any other person in a
fiduciary capacity, or for a willful violation of duty;
The ultimate nature of a preliminary attachment is to ensure that if you
win the case, you get something. (c) In an action to recover the possession of property unjustly or
fraudulently taken, detained or converted, when the property, or any
PURPOSES part thereof, has been concealed, removed, or disposed of to prevent
REPUBLIC v. MEGA PACIFIC its being found or taken by the applicant or an authorized person;
G.R. No. 184666, July 27, 2016
(d) In an action against a party who has been guilty of a fraud in
1. To seize the property of the debtor in advance of the final judgment contracting the debt or incurring the obligation upon which the
and to hold it for purposes of satisfying the said judgment; and action is brought, or in the performance thereof;

2. To enable the court to acquire jurisdiction over the action by the (e) In an action against a party who has removed or disposed of his
actual or constructive seizure of the property in those instances where property, or is about to do so, with intent to defraud his creditors; or
personal service of summons on the creditor cannot be effected.
(f) In an action against a party who does not reside and is not found
Recall that there are four requisites for the exercise of jurisdiction. in the Philippines, or on whom summons may be served by
Jurisdiction over the subject matter which is conferred by law and publication. (1a)

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GROUNDS FOR ISSUANCE

(Asked in the Bar multiple times) TSUNEISHI HEAVY INDUSTRIES (CEBU), INC. v. MIS ARITIME
CORPORATION
1. Action for recovery of a specified amount of money or damages, G.R. no. 193572, April 04, 2018
EXCEPT moral and exemplary,
a) on a cause of action arising from law, contract, quasi-contract, When fraud is invoked as a ground for the issuance of a writ of
delict or quasi-delict preliminary attachment, there must be evidence clearly showing the
b) against a party factual circumstances of the alleged fraud. Fraud cannot be presumed
i. who is about to depart from the Philippines from a party's mere failure to comply with his or her obligation. Indeed,
ii. with the intent to defraud his creditors; Rule 8, Section 5 of the Amended Rules requires that in all averments
of fraud, the circumstances constituting it must be stated with
2. Action for money or property, embezzled or fraudulently misapplied particularity.
or converted to his own use by either:
a) a public officer,
Section 2. Issuance and contents of order. — An order of attachment
b) an officer of a corporation,
may be issued either ex parte or upon motion with notice and hearing
c) an attorney, factor, broker, agent, or clerk, in the course of his
by the court in which the action is pending, or by the Court of Appeals
employment as such, OR
or the Supreme Court, and must require the sheriff of the court to
d) by any other person in a fiduciary capacity, or for a wilful
attach so much of the property in the Philippines of the party against
violation of duty;
whom it is issued, not exempt from execution, as may be sufficient to
satisfy the applicant's demand, unless such party makes deposit or
3. Action to recover the possession of property unjustly
gives a bond as hereinafter provided in an amount equal to that fixed
or fraudulently taken, detained or converted, when the property, or
in the order, which may be the amount sufficient to satisfy the
any part thereof, has been concealed, removed, or disposed of to
applicant's demand or the value of the property to be attached as
prevent its being found or taken by the applicant or an authorized
stated by the applicant, exclusive of costs. Several writs may be
person;
issued at the same time to the sheriffs of the courts of different
judicial regions. (2a)
NOTE: rule makes no distinction between real and personal property
because real property can be concealed by making fraudulent transfers
REQUISITES FOR ISSUANCE OF WRIT OF PRELIMINARY
where the beneficial ownership is retained by the transferor.
ATTACHMENT
If you're going codally and even the jurisprudence recently issued, there
4. Action against a party who has been guilty of fraud in contracting
are only 2 grounds found in section 3 which is the affidavit of the
the debt or incurring the obligation upon which the action is brought,
applicant and the posting of the attachment bond. But practically
OR in the performance thereof;
speaking, you need all of the 4.
Emphasis on the fraud. An added emphasis would be connecting this to
REQUISITES:
obligations and contracts. There are different types of fraud (dolo
(a) Case must be any of those where preliminary attachment is
causante and dolo incidente). Causal Fraud – Fraud employed at the
proper;
time of the execution of a contract in order to secure consent. Incidental
Fraud – committed in the performance of pre-existing obligation,
(b) Applicant must pray for or file a motion (ex parte or with
remedy is damages.
notice and hearing) to issue the writ;
5. Action against against a party who:
When you file your initiatory pleading, there is a prayer for the issuance
a. has removed or disposed of his property, or is about to do so,
of writ of preliminary attachment. There should also be an affidavit
and
attached as well like an affidavit of merits. If you recall under Rule 9 or
b. with the intent to defraud his creditors;
petition for relief from judgment and motions for new trial. The concept
is similar.
6. Action against a party who:
a. does not reside and is not found in the Philippines, OR
So if the grounds for the issuance of WPA are already available at the
b. on whom summons may be served by publication.
time you file the complaint then you add it to your complaint or initiatory
pleading. You need to pray for it there. But remember that WPA can be
Note: This refers to persons on whom summons may be served by
prayed for at any time before judgment is rendered. In other words, the
publication and against whose property, preliminary attachment may be
law or rule envisions a situation where the grounds for attachment
availed of such as (Amended Rules, Civil Procedure):
become apparent only when the initiatory pleading has already been
1. Resident defendants whose identity or whose whereabouts are
filed or when there is already pending trial. If you were not able to pray
unknown [Rules14, Sec. 16]
for it in your initiatory pleading and during the trial the defendant is
2. Resident defendants who are temporarily out of the country [Rule 14,
trying to dispose of his assets, then you can file a a motion for the
Sec. 18]
issuance a writ of preliminary attachment which would follow the same
procedure as laid down in Rule 57 with one important exception.
TAKE NOTE THAT:
Because it is a motion filed during trial and clearly one that is litigious
The grounds are EXCLUSIVE.
(Court cannot act on it without prejudicing the rights of the adverse
The grounds, with the exception of the last one, are based on FRAUD or
party) it would require notice and hearing. If the WPA is prayed for by
INTENT TO DEFRAUD.
virtue of a motion and not a mere application in the initiatory pleading,
it cannot be issued ex parte.
FRAUD AS GROUND
Fraud is the voluntary exception of a wrongful act or a willful omission,
December 5, 2020 Part 2 by Belle Fabe
while knowing and intending the effects that naturally and necessarily
arise from that act or omission. It is fraud if it is deemed to comprise
(c) that there is no sufficient security for the claim sought to be
anything calculated to deceive ---- including all acts and omission and
enforced
concealment involving a breach of legal or equitable duty, trust, or
confidence justly reposed ----resulting in damaged to or in undue
advantage over another. It’s not really stated there, by way of direct provision of the Rules.

What does it mean – that there is no sufficient security for the

claim sought to be enforced?
BARE AVERMENT OF FRAUD IS INSUFFICIENT

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 15

It means there is no i.e., pledge, there is no mortgage, no other manner An order of attachment may be issued by the court in which the action
by which the debt was secured. is pending, either:
(a) ex parte
And therefore, the need for a preliminary attachment because (b) upon motion with notice and hearing
if there is a mortgage, or a pledge or any other security
contract, what is the effect here? I already explained when ex-parte and when upon motion with notice
The writ of preliminary attachment cannot be issued. The court will and hearing.
simply tell you that, why won’t you just foreclose on your pledge or your
mortgage? That’s an important thing to remember. Rationale for ex parte issuance

The question in the bar could be tricky. They can just place there a very BAR QUESTION 1999: May a writ of preliminary attachment be issued
simple problem and then mask, or disguise a little bit, the words that ex parte? Briefly state the reason(s) for your answer. (3%)
there is a pledge or mortgage. You’re going to be tricked into thinking
that all the requisites for the issuance of a writ of preliminary attachment Suggested Answer: Yes, an order of attachment may be issued ex-
are present but there really is a pledge or mortgage. We’re going to be parte or upon motion or upon motion with notice and hearing (Section
wrong if we say that the writ of preliminary attachment should be issued. 2, Rule 57). The reason why the order may be issued ex-parte is: that
requiring notice to the adverse party and a hearing would defeat the
Section 4. Condition of applicant’s bond. – The party applying purpose of the provisional remedy and enable the adverse party to
for the order must thereafter give a bond executed to the adverse abscond or dispose of his property before a writ of attachment issues.
party in the amount fixed by the court in its order granting the (Mindanao Savings and Loan Association vs. Court of Appeals,
issuance of the writ, conditioned that the latter will pay all the costs 172 SCRA 480)
which may be adjudged to the adverse party and all damages which
he may sustain by reason of the attachment, if the court shall finally Here the examiner is not only asking your knowledge of the law, but the
adjudge that the applicant was not entitled thereto. examiner is also asking about you for the reason of the law. I always
preach this, not only should you know the law, you should also know
Applicant’s Bond the essence of the law. And that will make for a top notched answer –
The party applying for the order must give a bond executed to the always in the bar examinations because the examiner who checks your
adverse party: paper would be able to see that you can’t be tricked, deceived. And
(1) Amount is fixed by the court in its order granting the issuance of sometimes if you know the rationale for the law, and you forget exactly
the writ; how the rule/law would work, the intricacies of the law, let’s go to the
(2) Conditioned that, if the court shall finally adjudge that applicant rationale and you now know already know what the rule is. It’s very
was not entitled to the writ in the first place – meaning the issuance important for you to do this.
of the writ of attachment was improvident, then the bond will pay:
(a) All costs which may be adjudged to adverse party; and If you allow time to oppose the motion, for example and then a hearing
(b) All damages which he may sustain by reason of attachment for the issuance of a writ of attachment, then he can get away with what
he is doing with impunity.
Just take note that is the condition of the applicant’s bond.
The writ require the sheriff of the court to attach so much of the property
What will it pay for? in the Philippines of the party against whom it is issued, not exempt
The damages that will be incurred by the party against whom from execution, as may be sufficient to satisfy the applicant’s demand,
attachment would issue. That’s the purpose of the bond. EXCEPT if such party makes deposit or gives bond in an amount equal
to that fixed in the order. The amount may be:
When may a WPA (writ of preliminary attachment) be applied (a) sufficient to satisfy the applicant’s bond or
for? (b) the value of the property to be attached, exclusive of costs.
A preliminary attachment may be applied for:
(a) at the commencement of the action; or Take note:
(b) at any time before the entry of judgment Several writs may be issued at the same time to the sheriffs of the
courts of different judicial regions.
I already explained that to you –on what are the nuances, when it is
prayed for i.e., at the commencement of the action or at any time before What am I trying to say here?
final judgment. That is what we call a counterbond by the party against whose property
attachment is supposed to be issued.
By whom?
Any claiming party – again, anyone. It can be the defendant of a What’s the manner by which he does that?
counterclaim, cross-claim, third-party complaint, even an intervention. Either he can make a deposit or give a bond. That bond is when you get
a surety, and you pay the premium.
Section 2. Issuance and contents of order. – An order of
attachment may be issued either ex parte or upon motion with notice What will that bond be?
and hearing by the court in which the action is pending, or by the At least it represents the value of the property. It becomes a
Court of Appeals or the Supreme Court, and must require the sheriff replacement for the property attached that would secure the judgment
of the court to attach so much of the property in the Philippines of debt in case, the plaintiff or claimant wins.
the party against whom it is issued, not exempt from execution, as
may be sufficient to satisfy the applicant's demand, unless such party Take note there are (3) stages under Rule 57.
makes deposit or gives a bond as hereinafter provided in an amount
equal to that fixed in the order, which may be the amount sufficient Three Stages under Rule 57
to satisfy the applicant's demand or the value of the property to be (1) Issuance of the order granting the application
attached as stated by the applicant, exclusive of costs. Several writs
may be issued at the same time to the sheriffs of the courts of That is done by the court – it is issued by the court.
different judicial regions. (2a)
(2) Issuance of the writ of preliminary attachment

Issuance and contents of order of attachment [Rule 57, Section The actual issuance.
2]
(3) Implementation of the writ

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It’s easy to remember the general rule. What you need to remember
Take note: what are the exceptions.
For the initial two stages, it is not necessary that jurisdiction over the
person of the defendant be obtained. Exceptions [Rule 57, Section 5]
(a) Summons could not be served personally or by substituted service
However, once the implementation of the writ commences, the court despite diligent efforts; or
must have acquired jurisdiction over the defendant for without such (b) Defendant is a resident of the Philippines temporarily absent
jurisdiction, the court has no power or authority to act. therefrom; or
(c) Defendant is a non-resident; or
Let’s try to give an example here. For example, you were hit by a car by (d) The action is in rem or quasi in rem
your neighbor. While your neighbor was backing out of the driveway,
you were walking and you got hit. What’s this? [Article] 2176 of the Civil Here is where you draw the distinction because if the action is in the
Code, right? Tort – quasi-delict. first place in rem or quasi in rem from the very beginning, you don’t
need this conversion2x thing – because in that situation, the action is in
Can you ask for a preliminary attachment in an action for quasi- rem or quasi in rem under Rule 14, it doesn’t need service of summons
delict? upon the defendant to obtain jurisdiction over his person. What does
Yes. That was number 1 – action based on law, contract, quasi-contract, our Civil Procedure say? What’s the purpose of summons in that
delict, quasi-delict. It’s allowed. situation?

That is an action in personam. You’re asking the court to render the The service of summons, is simply to comply with the requirements of
defendant personally liable. And then, he cannot be summoned. You due process, not to obtain jurisdiction over the person of the defendant
convert now, your action in an action in rem by asking for a writ of which is not actually needed in that case.
preliminary attachment.
Give me an example of an action quasi in rem. What’s the
Recall. When the order is issued, it is okay that he has not yet been perfect example there?
served summons. When the writ is issued, it is also okay that there is A foreclosure of real estate mortgage.
yet no summons. But when the writ is implemented, meaning the sheriff
will now resort to the manner by which attachment is made depending What is the definition of quasi in rem?
on the type of property – (we’ll go to that, I have a table for that, on It still seeks personal liability on the part of the defendant but that
how you implement attachment with respect to several types of liability will be enforced against his property.
properties) — when the writ is implemented, he hasn’t been served with
summons, that is not allowed because there is this Rule on Prior or In action for foreclosure of mortgage, what is the personal
Contemporaneous Service Of Summons. liability there?
The debt/loan.
Section 5. Manner of attaching property. – The sheriff enforcing
the writ shall without delay and with all reasonable diligence attach, How are you going to enforce the debt/loan? How are you
to await judgment and execution in the action, only so much of the going to collect on the debt/loan?
property in the Philippines of the party against whom the writ is By foreclosing the mortgage which is property.
issued, not exempt from execution, as may be sufficient to satisfy the
applicant's demand, unless the former makes a deposit with the court That is an [perfect] example of an action quasi in rem. You don’t simply
from which the writ is issued, or gives a counter-bond executed to the convert it into one – but rather it is already quasi in rem. In that
applicant, in an amount equal to the bond fixed by the court in the situation, again, prior or contemporaneous service of summons, is not
order of attachment or to the value of the property to be attached, needed even during the implementation of the writ.
exclusive of costs.
Take note:
No levy on attachment pursuant to the writ issued under section 2 The levy on attachment shall be preceded or contemporaneously
hereof shall be enforced unless it is preceded, or contemporaneously accompanied by service on the defendant within the Philippines of:
accompanied, by service of summons, together with a copy of the (a) summons;
complaint, the application for attachment the applicant's affidavit (b) copy of the complaint;
and bond, and the order and writ of attachment, on the defendant (c) application for attachment
within the Philippines. (d) affidavit and bond of applicant
(e) order and writ of attachment
The requirement of prior or contemporaneous service of summons
shall not apply where the summons could not be served personally or Can violation of the rule on prior or contemporaneous service
by substituted service despite diligent efforts, or the defendant is a of summons be cured by re-serving the writ?
resident of the Philippines temporarily absent therefrom, or the Yes according to an obiter dictum in ONATE vs. ABROGAR, G.R. No.
defendant is a non-resident of the Philippines, or the action is one 107393, February 23, 1995.
in rem or quasi in rem.
And here is when I need to give you a caveat because a lot of reviewers
Rule on Prior or Contemporaneous Service of Summons actually contain this: that the defect that consists in violation of the rule
General Rule: on prior or contemporaneous service of summons can be cured by re-
A writ of attachment may be issued ex parte even before the summons serving it. THAT IS WRONG. Why? Because there is an actual,
is served upon the defendant BUT a writ may not be implemented until categorical ruling by the Supreme Court in TORRES vs. SATSATIN,
jurisdiction over the person is acquired by service of summons. November 25, 2009.
Otherwise, the implementation of the writ is null and void.
BUT the correct rule is:
It is null and void when the defendant has not been served with
summons or the party against whom attachment will issue. But there TORRES v. SATSATIN
are exceptions which can be found in Section 5. For me, you need to G.R. No. 166759, November 25, 2009
remember the exceptions because it is very easy to remember the
general rule. First two stages, it’s okay there is no service of summons. Belated service of summons on the defendant cannot be deemed to
Third stage, which is the implementation of the writ, that’s the time have cured the fatal defect in the enforcement of the writ. The court
there should be prior or contemporaneous service of summons. cannot enforce such a coercive process on the defendant without first
obtaining jurisdiction over his person. The subsequent service of

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summons does not confer a retroactive acquisition of jurisdiction over Registration Decree, the notice shall contain a reference to the
his person because the law does not allow for retroactivity of a belated number of the certificate of title, the volume and page in the
service. registration book where the certificate is registered, and the
registered owner or owners thereof.
That is very clear on what the Supreme Court said in TORRES vs.
SATSATIN, November 25, 2009. The rule is not ONATE vs. (a) The registrar of deeds must index attachments filed under this
ABROGAR, G.R. No. 107393, February 23, 1995. That’s wrong. section in the names of the applicant, the adverse party, or the
person by whom the property is held or in whose name it stands
Manner of attaching property [Rule 57, Section 5] in the records. If the attachment is not claimed on the entire
The sheriff enforcing the writ shall attach only so much of the property area of the land covered by the certificate of title, a description
in the Philippines of the adverse party not exempt from execution as sufficiently accurate for the identification of the land or interest
may be sufficient to satisfy the applicant’s demand, UNLESS: to be affected shall be included in the registration of such
(a) Party against whom writ is issued makes a deposit with the court attachment;
from which the writ is issued; or
(b) He gives a counter-bond executed to the applicant. (b) Personal property capable of manual delivery, by taking and
safely keeping it in his custody, after issuing the corresponding
How do you know if it is exempt from execution? receipt therefor.
You’ll have to consult Rule 39 – property exempt from execution. If you
look at that, you’ll know what properties cannot be attached. (c) Stocks or shares, or an interest in stocks or shares, of any
corporation or company, by leaving with the president or
What else is exempt from execution? managing agent thereof, a copy of the writ, and a notice stating
The family home for as long as it used as a family home, under the that the stock or interest of the party against whom the
Family Code is also exempt from execution. attachment is issued is attached in pursuance of such writ;

Let’s go to the exceptions – on the manner of attaching property. When (d) Debts and credits, including bank deposits, financial interest,
will the sheriff not enforce the writ by attaching property of the royalties, commissions and other personal property not capable
defendant or adverse party? of manual delivery, by leaving with the person owing such debts,
(a) Party against whom writ is issued makes a deposit with the court or having in his possession or under his control, such credits or
from which the writ is issued; or other personal property, or with his agent, a copy of the writ,
(b) He gives a counter-bond executed to the applicant. and notice that the debts owing by him to the party against
whom attachment is issued, and the credits and other personal
We’re just reviewing this – we discussed this in passing a while ago. property in his possession, or under his control, belonging to
Take note in LUZON DEVELOPMENT BANK v. KRISHNAN, G.R. No. said party, are attached in pursuance of such writ;
203530, April 13, 2015, the Supreme Court had the occasion to construe
on the meaning of the word “deposit”. (e) The interest of the party against whom attachment is issued in
property belonging to the estate of the decedent, whether as
heir, legatee, or devisee, by serving the executor or
LUZON DEVELOPMENT BANK v. KRISHNAN
administrator or other personal representative of the decedent
G.R. No. 203530, April 13, 2015
with a copy of the writ and notice that said interest is attached.
A copy of said writ of attachment and of said notice shall also be
While it is true that the word deposit cannot only be confined or
filed in the office of the clerk of the court in which said estate is
construed to refer to cash, a broader interpretation thereof is not
being settled and served upon the heir, legatee or devisee
justified in the present case for the reason that a party seeking a stay
concerned.
of the attachment under Section 5 is required to make a deposit in an
amount equal to the bond fixed by the court in the order of attachment
If the property sought to be attached is in custodia legis, a copy of the
or to the value of the property to be attached. The proximate relation of
writ of attachment shall be filed with the proper court or quasi-
the word "deposit" and "amount" is unmistakable in Section 5 of Rule
judicial agency, and notice of the attachment served upon the
57. Plainly, in construing said words, it can be safely concluded
custodian of such property. (7a)
that Section 5 requires the deposit of money as the word
"amount" commonly refers to or is regularly associated with a
sum of money. My advice is familiarize it. If able, memorize. Why? This has already been
asked in the bar. There’s a couple of past bar examination questions,
where the question is simply, how do you attach this specific type of
That was clarified by the Supreme Court. What do you deposit? Money.
property?
You cannot deposit anything else for purposes of complying with the
exceptions to Section 5 of Rule 57. There’s a counterpart provision in Rule 39. It is by virtue of an already
final attachment as a means to implement a writ of execution.
Section 7. Attachment of real and personal
property; recording thereof. — Real and personal property shall Attachment of Specific Types of Property
be attached by the sheriff executing the writ in the following manner: [Rule 57, Section 7]
Real property, or By recording with the Register of Deeds
(a) Real property, or growing crops thereon, or any interest therein, growing crops
standing upon the record of the registry of deeds of the province thereon, or any
in the name of the party against whom attachment is issued, or interest therein
not appearing at all upon such records, or belonging to the party Personal property By the sheriff taking and safely keeping
against whom attachment is issued and held by any other capable of manual it in his custody, after issuing the
person, or standing on the records of the registry of deeds in the delivery corresponding receipt therefor
name of any other person, by filing with the registry of deeds a
Stocks or shares By leaving with the president or
copy of the order, together with a description of the property
managing agent, a copy of the writ and
attached, and a notice that it is attached, or that such real
a notice stating that the stock or interest
property and any interest therein held by or standing in the
is attached in pursuance of such writ
name of such other person are attached, and by leaving a copy
Debts and credits, By leaving with the person owing such
of such order, description, and notice with the occupant of the
including bank debts or with his agent, a copy of the
property, if any, or with such other person or his agent if found
deposits, financial writ, with notice of attachment
within the province. Where the property has been brought under
interest, royalties,
the operation of either the Land Registration Act or the Property

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 18

commissions and Discussion: Suggested Answer: Although the property of an incompetent

other personal Sounds familiar? Yes. Why? This is under guardianship is in custodia legis, it may be attached as in fact
property not capable precisely the manner by which it is provided that in such case, a copy of the writ of attachment shall
of manual delivery garnishment is made. Remember, in be filed with the proper court and notice of the attachment served
execution, in order to garnish debts and upon the custodian of such property (Sec. 7, last par., Rule 57).
credits, or similar incorporeal property.
For example, in bank accounts, what do Q: Can there be a sale of the attached property while the action
you do? You leave the notice of is pending?
garnishment there with the bank. From
that moment on, that cannot be GENERAL RULE:
meddled with because it is already in The issuance of a writ of attachment is only a provisional remedy, thus
custodia legis. no sale of the property should be made during the pendency of the
action.
With respect to attachment, it’s the
same thing. You leave it with the bank. EXCEPTION:
The bank is now put on notice that Rule 57, Sec. 11
cannot be interfered with because it’s  Whenever it shall be made to appear to the court in which the
already in custodia legis. action is pending, upon hearing with notice to both parties,
that:
The concept of attachment of this type 1. The property attached is perishable; or
of incorporeal property whether in 2. The interests of all the parties to the action will
preliminary attachment or actual be subserved by the sale thereof,
garnishment is similar.  The court may order such property to be sold at public auction
Interest in property By serving the executor or administrator in such manner as it may direct, and the proceeds of such sale
belonging to or other personal representative of the to be deposited in court to abide the judgment in the action.
decedent’s estate decedent, with notice of attachment
whether as heir, Diba gicompare na nato ang writ of preliminary attachment sa
legatee, or devisee Discussion: Take note when you talk garnishment? Remember that a writ of garnishment is made in order to
about estate property, there are two place the property in custodia legis. If we talk about properties under a
possibilities here: final writ of attachment, they can be taken so that they can be sold
already at the execution sale to pay the judgment debt. Diba mao na
(a) there is an executor or administrator ang main difference sa writ of preliminary attachment sa writ of final
and you will know that. You can easily attachment?
find out if there is already a
proceeding for settlement of the Q: Is there an exception ba, if the writ is only preliminary in
estate of the deceased person. If you nature (while the case is pending) pero gibaligya na ang
see that there is already an executor property (just like what happens when a writ of final
– because somebody was appointed attachment is issued)?
in the will and that executor accepted
and made his acceptance known to A: YES! By way of an exception to the general rule as found in Rule 57,
the court. If no one is appointed in the Sec. 11. There is no Philippine law or jurisprudence which defines the
will, the court, can upon application word “perishable”. For purposes of construing Sec. 11. Everything in a
appoint an administrator or if there sense is perishable except land. For example, ang gi-attach kay
was an executor, but he didn’t accept sakyanan. Is car considered perishable? Remember that the car is
it, then the court will appoint an subject to wear and tear; it depreciates. What about other personal
administrator. properties? Again, it would depreciate.

(b) If there is none, then any personal Q: But is that the perishable that is meant by Sec. 11?
representative of the decedent. You
can serve the writ of attachment on A: We have no way of knowing for sure, but if you consult American
an heir. jurisprudence, it should be katong mabulok or malata. Mao na siya.
Property in custodia A copy of the writ is filed with the Example is saging. Mao jud na akoang example ever since nagtudlo ko
legis proper court/quasi-judicial agency with og Prov Rem. I had an actual case here where ang gi-attach na property
notice served upon the custodian or gi-garnish in a way is saging that is subject to a Supply Contract na
gibaligya sa lain or kanang gusto ibaligya sa lain by the grower of the
Discussion: Meaning you’re trying to bananas. My client which is a big banana corporation said na ipa-attach
attach something that is already within daw nila. Unsaon man ng saging na malata man na? In the meantime,
the control of the court. It’s already in pwede ibaligya ang saging para di malata and the proceeds will be used
the custody of the court. What’s an to satisfy the judgment if madaog akoang client sa kaso.
example there? Probably, in receivership
– the property is already placed in Where Attached Property Is Claimed by Third Person
receivership. Can you still have it It is possible that the properties attached are not owned by the
attached? Yes, because it is property in attachment debtor at all. It is well to recall that the issuance of a writ of
cusodia legis – in any other manner by preliminary attachment is based on incomplete evidence and such
which the court acquires custody over incomplete evidence brought forth for purposes of applying for the writ
any other property. may inaccurately designate property as belonging to the attachment
debtor when in fact it belongs to a third person.

December 5, 2020 Part 3 by Marion Lawrence Lara Dili panag-iya sa debtor ang property na gi-identify sa plaintiff and gipa-
attach sa sheriff. Sounds familiar? It is practically a TERCERIA. It is the
BAR QUESTION 1999: In a case, the property of an incompetent equivalent of the terceria that we learned in Rule 39 of Civil Procedure.
under guardianship was in custodia legis. Can it be attached?
Explain. (2%) Thankfully, such third person is not without remedy. Depending on the
stage of litigation, he can file:

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 19

1. A third party claim; As provided in Sec. 14, the third person may vindicate his claim over the
2. A motion for intervention; or attached property in the same or separate action. If he wishes to
3. An independent action to recover his property. vindicate his claim in the same action, he may do so by way of
intervention under Rule 19.
Third Party Claim or Terceria
Section 14 provides that the third person whose property was levied on Intervention may be availed of only before or during trial not thereafter,
must make an affidavit if his title thereto, or right to the possession and certainly not when judgment is executory. (ONG vs TATING, G.R.
thereof stating the grounds of such right and title and serves such No. L-61042, April 15, 1987)
affidavit upon the sheriff while the latter has possession of the attached
property and a copy thereof upon the attaching party. Independent Action to Recover Property
The third party claimant may also vindicate his claim by filing a separate
Substantially, the same procedure as in terceria in Rule 39, Sec. 16. action the object of which is the recovery of ownership or possession of
the property seized by the sheriff, as well as damages arising from
In such case, the sheriff shall not be bound to keep the property under wrongful seizure and detention of the property despite the third-party
attachment, as a general rule. claim.

By way of exception, the sheriff is bound to keep the property when Q: How do you recover ownership of property?
the attaching party, on the demand of the sheriff, files a bond approved
by the court to indemnify the third party claimant in a sum not less than A: It depends kung unsang klase na property. If it is personal property,
the value of the property levied upon. you recover is through replevin. If it is real property, you recover it
through action for recovery of possession.
Q: What is the commonality between terceria under Rule 39
and terceria under Rule 57, aside from the fact that they follow BAR QUESTION 2000: Jacky’s real property is being attached by
the same procedure? the sheriff in a civil action for damages against Jade. Jacky claims
that she is not a party to the case; that her property is not involved
A: A property, subjected either to a writ of preliminary or final in said case; and that she is the sole registered owner of said
attachment, is claimed by a 3rd person. Dili panag-iya sa attachment property. Under the Rules of Court, what must Jacky do to prevent
debtor or judgment debtor ang property. Kung familiar ka sa procedure the Sheriff from attaching her property? (5%)
under Rule 39, it is the same here.
Suggested Answer: Terceria
Pag naka-issue na ka atong affidavit, the sheriff shall not be bound to
keep the property under attachment, as a general rule. The third party claimant may also intervene or file a separate action
to vindicate his claim to the property involved and secure the
“attaching party…files a bond” – ikapila na nato ni nga bond? 3rd bond necessary reliefs, such as preliminary injunction, which will not be
na. We have: considered as interference with a court of coordinate jurisdiction.
1. attachment bond
2. counterbond; and
3. bond for a third party claim December 5, 2020 Part 4 by Nice Mondragon

Ang provisional remedies, mahilig og bonds. Remember na kaning 3rd Discharge of Attachment and Counter-bond
party claim refers to property belonging to another person. After a writ of attachment has been enforced, the party whose property
has been attached, or the person appearing on his behalf, may move
POSSIBLE BAR QUESTION: Distinguish between terceria in for the discharge of the attachment wholly or in part on the security
Rule 57 and terceria in Rule 39. given.

RULE 57 RULE 39 Ways of Discharging Attachment

Third party claim over a property Third party claim over property 1. Counter-bond under Sec. 12
attached by way of preliminary pursuant already to a writ of 2. Motion for Discharge under Sec. 13
attachment execution.
Counter-bonds under Section 12
There is still no judgment against There is already a final and
 Counter-bonds posted to obtain the lifting of a writ of attachment
the attachment debtor. executory judgment against the
as security for the payment of any judgment that the attaching
judgment obligor.
party may obtain. They are thus mere replacements of the property
The third party claimant may It presupposes that there is formerly attached. Just as property formerly attached may be
vindicate his claim to the already a final and executory levied upon after final judgment in the case in order to realize the
property by intervention as a judgment; the third party amount adjudged, so is the counter-bond. (In Re: Cajefe, et al.
necessary consequence that claimant cannot file an versus Fernandez, et al., GR No. L-15709, October 19, 1960)
there is no final judgment in the intervention. A separate action
case and he has interest in the must be filed already. Discussion: In case mapildi ang attachment debtor, naa gihapon
subject matter of the property in siguridad ang attaching creditor na mabayran sya. That is a way of
litigation – “the third party is so counter-bond. Sya ang mahimong replacement sa property
situated as to be adversely attached. So instead of the property being sold, direkta na ka sa
affected by any disposition of the counter-bond. That is the main difference between the counter-
property subject of the case.” bond in Rule 57 and Rule 58, because the counter-bond in Rule 57
replaces the property attached. Sya ang mahimong security sa
The third distinction is the most important. The third party claimant may payment in case of favorable judgment. Under Rule 58, in
file a complaint-in-intervention in order to vindicate his right to the injunction, it is solely for the purpose of paying damages. Dili ang
property subject of the writ of preliminary attachment under Rule 57. utang ang bayaran, pero ang damages.
The main point of distinction is how you vindicate your claim over the
property. In Rule 57, you can still intervene before the final judgment.  The counter-bond is intended to secure the payment of any
But in Rule 39, you cannot vindicate your claim by way of intervention, judgment that the attaching creditor may recover in the action.
but by way of separate action. When the execution be returned unsatisfied in whole or in part, it
is only then that payment of the judgment shall become charged
Motion for Intervention on such counter-bond. (Philippine British Assurance Company, Inc.
versus IAC, GR No. 72005, May 29, 1987)

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 20

3. That the surety be given notice and a summary hearing in the

 The mere posting of a counter-bond does not automatically same action as to his liability for the judgment under his
discharge the writ of attachment. It is only after hearing and after counter bond
the judge has ordered the discharge of the attachment if a cash
deposit is made or a counter-bond is executed to the attaching
creditor is filed, that the writ of attachment is properly discharged In case of excess: When there is an excess (i.e.: there are amounts
under Section 12, Rule 57 (Security Pacific Assurance Corporation not applied to the judgment) after applying the proceeds of the sale of
versus Tria-Infante, GR No. 144749, August 31, 2005) the property attached, the sheriff, upon reasonable demand, must
return to the judgment obligor the attached property remaining in his
Summary: Grounds for Discharge hands, and any proceeds of the sale of the property attached not applied
[BPI vs LEE GR No. 190144, August 1, 2012] to the judgment (Section 16, Rule 57)

a) Debtor has posted a counter-bond or has made the requisite

Discussion: Remember, this is an execution sale, so the property is
cash deposit [Rule 57, Sec 12]
usually undervalued. It’s difficult for it to have an excess. Although there
b) Attachment was improperly or irregularly issued [Rule 57, Sec
is a possibility of excessive attachment of property.
13] as where there is no ground for attachment, or the
affidavit and/or bond filed therefor are defective or
insufficient; Claim for damages on account of improper, irregular or
c) Attachment is excessive, but the discharge shall be limited to excessive attachment
the excess [Rule 57, Sec 13]
An application for damages on account of improper, irregular or
Discussion: Example ang debt is only 1M, you cannot attach excessive attachment must be filed before the trial or before appeal is
P3M worth of property. perfected or before the judgment becomes executory, with due notice
to the attaching party and his surety or sureties setting forth the facts
d) Property attachment is exempt from execution [Rule 57, Sec showing his right to damages and the amount thereof. Such damages
2 and Rule 57, Sec. 5] may be awarded only after proper hearing and shall be included in the
e) Judgment is rendered against the attaching creditor [Rule 57, judgment on the main case.
Sec 19]
If the judgment of the appellate court be favorable to the party against
Take Note: There is a difference between the bond for issuance of writ whom the attachment was issued, he must claim damages sustained
and bond for lifting the writ. during the pendency of the appeal by filing an application in the
appellate court, with notice to the party in whose favor he attachment
a. Bond for issuance of writ (Sec 4) - This is for damages by was issued or his surety or sureties, before the judgment of the appellate
reason of the issuance of the writ and is posted by the court becomes executory. The appellate court may allow the application
claimant/applicant. to be heard and decided by the trial court.
b. Bond for lifting of writ (Sec. 5 and 12) - This is to secure the
payment of the judgment to be recovered and is posted by Nothing herein contained shall prevent the party against whom the
the party against whom attachment was issued. Again, this attachment was issued from recovering in the same action the damages
replaces the property formerly attached. awarded to him from any property of the attaching party not exempt
from execution should the bond or deposit given by the latter be
Satisfaction of Judgment out of Property Attached insufficient or fail to fully satisfy the award. (Rule 57, Section 20)
If judgment is in favor of the attaching party and execution has issued
therein, the sheriff may cause the judgment to be satisfied out of the
property attached in the following manner: Discussion: Section 20 envisions where the defendant loses but he still
suffers damages by reason of the excessive attachment, and he could
1. Payment to judgment creditor of all sales of perishable or have been deprived of the beneficial use of the property in the
other property; meantime. Definitely there is damage on his part by reason of the
2. If any balance remains, selling property as may be necessary exercise attachment, so he can claim damages even if he lost the main
to satisfy the judgment; case.
3. Collecting from all persons having possession of credits
belonging to the judgment debtor and paying the proceeds to
judgment creditor (Section 15, Rule 57). BAR QUESTION 1999: May damages be claimed by a party prejudiced
by a wrongful attachment even if the judgment is adverse to him?
If Attached Property be Insufficient Explain (2%)
First, if after realizing upon all the property attached, including the
proceeds of any debts or credits collected, and applying the proceeds to Suggested Answer: Yes, damages may be claimed by a party
the satisfaction of the judgment less the expenses of proceedings upon prejudiced by a wrongful attachment even if the judgment is adverse to
the judgment any balance shall remain due, the sheriff must proceed to him. This is authorized by the Rules. A claim from damages may be
collect such balance as upon ordinary execution (Section 16, Rule 57). made on account of improper, irregular or excessive attachment, which
shall be heard with notice to the adverse party and his surety or sureties.
If a Counter-bond was filed (Sec.20, Rule 57)
If the judgment remains unsatisfied, recovery may be had on the
counter-bond demand and notice and hearing to surety (Section 17, General Rule: Procedure for claiming damages is EXCLUSIVE only to
Rule 57). In TOWERS ASSURANCE CORPORATION v. ORORAMA the situation provided in Rule 57, Section 20. Such claims for damages
SUPERMART, GR No. L-45848, Nov 09, 1977, the requisites in order that cannot be the subject of an independent action, as a general rule.
the judgment creditor might recover from the surety on the counter
bond under Section 17 were laid down as follows:
Reason: Because you only incur damages by reason of the excessive
attachment in that very same case, so you cannot file an independent
1. That execution be first issued against the principal debtor and action about it. That would be to sanction splitting of the causes of
that such execution was returned unsatisfied in whole or in action.
part;
2. That the creditor made a demand upon the surety for the
satisfaction of the judgment, and Exceptions:

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a. Where the principal case was dismissed for lack of jurisdiction PRELIMINARY ATTACHMENT GARNISHMENT
by the trial court without giving opportunity to the party
whose property was attached to apply for and prove his claim;
and It involves only two (2) parties, It involves three (3) parties,
b. Where the damages by reason of the attachment was namely: the creditor and the namely: the creditor, the
sustained by a third person who was not a party to the action debtor. debtor and the garnishee.
wherein such writ was issued (Santos v CA- 1954)
In attachment, there is actual
In garnishment, there is no
BAR QUESTION 2002: Plaintiff obtained a writ of preliminary seizure of property and it will be
actual seizure of property
attachment upon a bond of P1 million. The writ was levied on the placed in custodia legis
defendant’s property and was discharged upon the posting by the
defendant of a counter-bond in the same amount. After trial, the court Preliminary attachment is
rendered judgment finding that the plaintiff had no cause of action Garnishment terminates upon
discharged upon payment of a
against and that he had sued out the writ of attachment maliciously. the satisfaction of the
counter-bond and for other
The court dismissed the complaint and ordered the plaintiff and its judgment debt
grounds
surety to pay jointly to the defendant P1.5 million as actual damages,
P0.5 million as moral damages and P0.5 million as exemplary damages.
Evaluate the soundness of the judgment from the point of view of It may be sought at the
procedure. (5%) commencement of an action or It is sought as a means to
at any time before entry of execute a final judgment.
A: The judgment against the surety is not sound if due notice was not judgment
given to him of the applicant for damages (Rule 57, Sec 20). Moreover,
the judgment against the surety cannot exceed the amount of its
counter-bond of P1 million. Preliminary Attachment vs. Final Attachment

BAR QUESTION 2005: Katy filed an action against Tyrone for PRELIMINARY ATTACHMENT FINAL ATTACHMENT
collection of the sum of P1 million in the RTC, with an ex-parte (Rule 57) (Rule 39)
application for a writ of preliminary attachment. Upon posting of an
attachment bond, the court granted the application and issued a writ of
preliminary attachment. Apprehensive that Tyrone might withdraw his It is an auxiliary remedy to give It is a means for the execution
savings deposit with the bank, the sheriff might immediately serve a security for a judgment still to be of a final judgment.
notice of garnishment on the bank to implement the writ of preliminary rendered.
attachment. The following day, the sheriff proceeded to Tyrone’s house
and served him the summons, with copies of the complaint containing As a general rule, there is no It should always be
the application for writ of preliminary attachment, Katy’s affidavit, order sale because the decision has accompanied by a sale at
of attachment, writ of preliminary attachment and attachment bond. not yet been rendered. public auction.

Within fifteen (15) days from service of the summons, Tyrone filed a Resorted to at the Available after the judgment in
motion to dismiss and to dissolve the writ of preliminary attachment on
commencement of the action or the main actin had become
the following grounds: (i) the court did not acquire jurisdiction over his
at any time before the entry of executory, and for the
person because the writ was served ahead of the summons; (ii) the writ judgment, for the temporary satisfaction of said judgment.
was improperly implemented; and (iii) sad writ was improvidently issued
seizure of the property of the
because the obligation in question was already fully paid. Resolve the
adverse party.
motion with reasons. (4%)

The proceeds of the sale, in The proceeds of the sale are

Suggested Answer: The motion to dismiss and to dissolve the writ of
cases allowed, are in custodia turned over to the attaching
preliminary attachment should be denied.
legis (Sec. 11) creditor

1. The fact that the writ of attachment was served ahead of the
summons did not affect the jurisdiction of the court over his person.
It makes the writ unenforceable. (Sec.5, Rule 57) [TAKE NOTE: If
this is asked today, based on Torres vs Satsatin (2009) - This can no
longer be cured by re-service]
2. The writ was improperly implemented. Serving a notice of
garnishment, particularly before summons I served, is not proper. It
should be a copy of the writ of attachment that should be served on
the defendant, and a notice that the bank deposits are attached
pursuant to the writ (Sec 7[d], rule 57)
3. The writ was improvidently issued if indeed it can be shown that the
obligation was already fully paid. The writ is only ancillary to the main
action (Sec. 13, Rule 57). The alleged payment of the account cannot
serve as a ground for resolving the improvident issuance of the writ,
because this matter delves into the merits of the case, and requires
full-blown trial. Payment, however, serves as a ground for a motion
to dismiss.

RULE 57- Important Distinctions

BAR QUESTION 1999: Distinguish attachment from garnishment (25)

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In the main action for Preliminary injunction may issue

RULE 58 injunction, the auxiliary remedy even if the main action is not
PRELIMINARY INJUNCTION of preliminary injunction may one for injunction.
issue.

December 12, 2020 Part 1 by Reginald Matt Santiago It can actually be an action for
injunction with the prayer for
Section 1. Preliminary injunction defined; classes. — A issuance of the writ of
preliminary injunction is an order granted at any stage of an preliminary injunction.
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 Section 2. Who may grant preliminary injunction. — A
act or acts. It may also require the performance of a particular act preliminary injunction may be granted by the court where the
or acts, in which case it shall be known as a preliminary action or proceeding is pending. If the action or proceeding is
mandatory injunction. pending in the Court of Appeals or in the Supreme Court, it may
be issued by said court or any member thereof.
Definition
A preliminary injunction is an order granted at any stage of an action or Court that Grants the Writ
proceeding prior to the judgment or final order, requiring a party or a Section 2 provides that the writ may be granted by the court where the
court, agency or a person to either: action or proceeding is pending. If the action or proceeding is pending
(a) Refrain from a particular act or acts; or in the Court of Appeals or in the Supreme Court, it may be issued by the
(b) Require the performance of a particular act or acts, in which said court or any member thereof. That preliminary injunction may be
case it shall be known as a preliminary mandatory injunction. issued only by the court in which the case is pending is an affirmation
of the fact that preliminary injunction is merely a provisional or ancillary
For as long as there is no judgment by the court, there is still then a remedy which cannot exist except only as part or as an incident of an
possibility that a WPI can be issued already. It means that PI is one that independent action or proceeding.
is not only prayed for at the beginning. When you file you initiatory you
have there a prayer for issuance of WPI. What if you were not able to But note that there was this categorical ruling in:
pray? You can still do so by means of a motion. As long as there is no
judgment or final order, a writ of preliminary injunction can still be had. BCDA v. UY
Preliminary injunction it is simply an ancillary remedy. G.R. No. 144062, November 2, 2006

Nature Firmly established is the doctrine that “jurisdiction over tehe subject
A suit for injunction is an action in personam. It is one intended to matter is conferred by law” Section 19 of BP 129 shows that a RTC
operate upon the person of the defendant or the adverse party because has jurisdiction over all civil cases in which the subject of litigation is
the defendant can set up a prayer for the writ of preliminary injunction incapable of pecuniary estimation. Jurisprudence has
by way of his answer. It operates upon the person, or intended to recognized complaints for injunction with a prayer for temporary
operate upon the person. restraining order or writ of preliminary injunction as such.

It is an ancillary remedy that is meant to be temporary and subject to It says that an action for injunction with prayer for issuance of WPI or
the final disposition of the principal action. TRO is actually one that “incapable of pecuniary estimation” and then in
that case the SC said that being “incapable of pecuniary estimation” it is
BAR QUESTION 2009: TRUE or FALSE. A suit for injunction is an one that should be filed properly with the RTC because the RTC has
action in rem. Explain. jurisdiction over actions incapable pecuniary estimation.

Suggested Answer: False. A suit for injunction is an action in But you need to remember that we have to go back to the basic which
personam. A restraining order like an injunction, operates upon a is the law on jurisdiction, BP 129 which states:
person. It is granted in the exercise of equity of jurisdiction and has
no in rem effect to invalidate an act done in contempt of an order of Preliminary Injunction May be Issued by the MTC
the court ecept where by statutory authorization, the decree is so Under Section 33(1) of BP 129, MTCs shall exercise original jurisdiction
framed as to act in rem on property. over civil actions and probate proceedings, testate and intestate,
including the grant of provisional remedies in proper cases, where the
Purpose value of the personal property, estate, or amount of the demand does
[1] To prevent future injury and maintain the status quo (take note that not exceed P300,000 or, in Metro Manila, were such personal property,
“status quo” is given a particular meaning doctrinally  in the status estate, or amount of the demand does not exceed P400,000.
quo is the last actual, peaceable, uncontested status which preceded the
pending controversy). For example, in actions for forcible entry and unlawful detainer under
Rule 70, the MTC is specifically empowered to grant preliminary
[2] It may be filed as a main action before the trial court or as a injunction in accordance with the provision of Rule 58, to prevent the
provisional remedy in the main action (EVY CONSTRUCTION v. defendant from committing further acts of dispossession against the
VARIANT ROLL, GR 207938). [2006 BAR]. Thus an injunction can be filed plaintiff. A possessor despirved of his possession may present a motion
as a main action or as a provisional remedy. before the MTC in the action for forcible entry or unlawful detainer for
the issuance of a writ of preliminary mandatory injunction to restore him
Action for Injunction Preliminary Injunction in his possession (Rule 70, Section 15).  But note BCDA v. Uy.
It is a main action brought for its It is an ancillary remedy that
own sake. exists only as an incident of an How do we reconcile?
independent action or
proceeding. Action for Injunction Preliminary Injunction
Its object is to seek a judgment Its object is to preserve the If it is a main action for But if as provisional remedy,
embodying a final injunction. status quo until the merits of injunction, being incapable of jurisdiction is vested in the
the case can be heard. pecuninary estimation, same court where the action or
The judgment in this action is The order issuing a writ of jurisdiction is vested in the proceeding is pending, including
based on all evidence gathered preliminary injunction is based Regional an MTC.
by court as it is rendered only on initial and incomplete
after a full-blown trial. evidence (sampling of evidence)

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Non-Issuance is the General Rule [Full text]: It is not a viable legal position to claim that a TRO against
Meaning, WPI is issued in exceptional cases. A writ of preliminary a writ of execution is issued against an erring sheriff, not against the
injunction, being an extraordinary event, one deemed as a strong arm issuing Judge. A TRO enjoining the enforceability of a writ addresses
of equity or a transcendent remedy, must be granteed only in the fact the writ itself, not merely the executing sheriff. As already mentioned
of injury to actual and existing substantial rights ( SUMIFRU v. SPOUSES above, the appropriate action is to assail the implementation of the
CERENO, GR 218236, FEB. 7, 2018). writ before the issuing court in whose behalf the sheriff acts, and,
upon failure, to seek redress through a higher judicial body.
Every court should remember that injunction is a limitation upon the
freedom of action of the defendant and should not be granted Doctrine of Non-Interference Extends to Administrative Agencies
precipitately. It should be granted only when the court is fully satisfied This doctrine of non-interference has also been extended to those of the
that the law permits it and the emergency demands it ( OLALIA v. HIZON, administrative agency of equal rank of the RTC. For example, in
GR 87913, MAY 6, 1991). PHILIPPINE PACIFIC FISHING CO, INC. ET AL. v. LUNA (GR L-59070,
MARCH 15 1982), the Supreme Court noted that nowhere under PD 902-
Doctrines that Affect Issuance A, the law which created the Securities and Exchange Commission,
The trial court has no jurisdiction to issue a writ of preliminary injunction provides the appropriate remedy, does it empower the RTC to inferfere
to enjoin acts being performed or about to be performed outside its with the orders of the Commission, not even on grounds of due process
territorial jurisdiction (GOMOS v. ADIONG, AM NO. RTJ-04-1863 [2004]). or jurisdiction. The Supreme Court added that: “(t)he Commission is, at
Injunction is supposed to be localized, since you cannot enjoin acts the very least, a co-equal body with the RTC” and “(e)ven as such co-
outside jurisdiction. equal, one would have no power to control the other.”

Doctrine of Non-Jurisdiction – which states that the power of the court You need to remember as well, in Civil Procedure, so we are talking
to issue an injunctive writ is only co-extensive with its territorial about RTC and SEC, recall jurisdiction, under SRC (RA 8799). The
boundaries. But it does not apply: jurisdiction over intra-corporate disputes are now with the RTC.
(1) When the decision was issued by the head of a government What is left with the RTC are only matters of implementation and
agency or administrative body and the act enjoined is outside enforcement of the provisions of the SRC.
the territorial jurisdiction of the court where the head office is
located; and Ancillary Remedy
(2) To a private corporation where the acts to be enjoined are Principally is a mere ancillary remedy which cannot stand separately or
outside the court’s territorial jurisdiction. In such a case, the proceed independenrly of the main case ( MIAA v. RIVERA [2005]).
prinicipal place of business of the corporation should be
determined that is where the directive of the perofrmance of Effect of Dismissal of the Main Action
those acts emanate. A preliminary injunction is merely a provisional remedy, an adjunct to
the main case and subject to the latter’s outcome. If the main action is
We know that a corporation acts through its Board of Directors, which dismissed prior to the issuance of the writ, so shall the provisional
issues a Board Resolution which may emanate from its principal place of remedy. If already issued, writ is deemed lifted ( LEAP v. LWUA [2016]).
business. But the acts cascade to the different branches. If the court It is automatic without need of judicial fiat.
cannot issue injunction beyond its territorial boundaries  it will not
have tooth, because you are only limited to the territorial jurisdiction Kinds of Preliminary Injunction
despite the fact the imprimatur for the acts sought to be enjoined comes Section 1 not only defines what a preliminary injunction is, it then also
from a different place. That’s why there is somehow an extra- classifices preliminary injunction into two:
territorial enforcement and applicability of the writ of injunction. (1) A prohibitory injunction which commands a party then to
refrain from doing a particular act; and
Doctrine of Judicial Stability and Non-Interference (2) A mandatory injunction which commands perofrmance of
This case is an infamous case that might come out every bar: some positive act to correct a wrong in the past ( LEVI
STRAUSS v. CLINTON APARELLE [2006]).
BARROSO v. OMELIO
GR No. 194767, October 14, 2015 While preliminary preventive injunction is aimed at preserving the status
quo, preliminary mandatory injunction seeks to restore it. Thus, it is a
Scenario [As narrated by Sir Espejo]: This is a Davao City case. It settled rule that even if the acts complained of have already been
talks about two (2) RTCs in Davao. RTC Branch 16 issued a writ of committed, but such acts are continuing in nature and were in
execution already. RTC Branch 17 issued a writ of injunction to derogation of the applicant’s rights at the outset, preliminary mandatory
restrain the implementation if the writ of execution issued by Judge injnction may be availed of to restore the parties to the status quo or
Carpio. The judge of RTC Branch 17 is Judge Omelio. that condition prior to the controversy ( MARCELO-MENDOZA v.
PEROXIDE, GR 203492 [2017]).
Issue: Can co-equal RTC can enjoin execution by issuance of a writ
of execution. – No. Requisites for the Issuance of the Mandatory Injunction

Held: The doctrine of judicial stability or non-interference in the PHILIPPINE VIRGINIA TOBACCO v. DE LOS ANGELES
regular orders or judgments of a co-equal court is an elementary GR No. L-27829, August 19, 1988
principle in the administration of justice: no court can interfere by
injunction with the judgments or orders of another court of The discretionary power of the trial court to issue a preliminary
concurrent jurisdiction having the power to grant the relief sought by mandatory injunction is not absolute as the issuance of the writ is
the injunction. The rationale for the rule is founded on the concept the exception rather than the rule. The party appropriate for it must
of jurisdiction: a court that acquires jurisdiction over the case and show a clear legal right the violation of which is so recent as to make
renders judgment therein has jurisdiction over Its judgment, to the its vindication an urgent one. It is granted only on a showing that
exclusion of all other coordinate courts, for its execution and over all
its incidents, and to control, in furtherance of justice, the conduct of (a) the invasion of the right is material and substantial;
ministerial officers acting in connection with this judgment.
(b) the right of the complainant is clear and unmistakable; and
[Sir Espejo]: The contention was that they are not straining the RTC
as that they were only restraining the sheriff of RTC Branch 16. But (c) there is alleged urgent and permanent necessity for the
the Supreme Court did not buy it. Because the sheriff is merely a writ to prevent serious damages.
ministerial officer of RTC Branch 16. Thus if you restrain the sheriff
you are practically restraining the court itself.

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Status Quo Ante Order (b) Unless exempted by the court the applicant files with the court
This is another interesting kind of injunctive relief. A status quo ante where the action or proceeding is pending, a bond executed to the
order is an equitable remedy in the nature of a temporary restraining party or person enjoined, in an amount to be fixed by the court, to
order (DOJILLO v. COMELEC [2006]). It is intended to maintain the status the effect that the applicant will pay to such party or person all
quo ante, which is the last actual, peaceable, and uncontested state of damages which he may sustain by reason of the injunction or
things which preceded the controversy. How is it different from a TRO temporary restraining order if the court should finally decide that
then? There is a need to look at jurisprudence. Also note that the Bar the applicant was not entitled thereto. Upon approval of the
Examinations have asked what is a status quo ante order. requisite bond, a writ of preliminary injunction shall be issued.
(4a)
In MEGAWORLD PROPERIES v. MAJESTIC FINANCE (GR 169694 [2015]),
the Supreme Court elaborated that, apart from the provisional remedies (c) When an application for a writ of preliminary injunction or a
expressly recognized and made available under Rule 57 to Rule 61 of temporary restraining order is included in a complaint or any
the Rules of Court, it has sanctioned the issuane of the status quo ante initiatory pleading, the case, if filed in a multiple-sala court, shall
order but only to maintain the last, actual, peacable an uncontested be raffled only after notice to and in the presence of the adverse
state of things that preceded the controversy. party or the person to be enjoined. In any event, such notice shall
be preceded, or contemporaneously accompanied, by service of
Dinstinction between TRO and Status Quo Ante Order summons, together with a copy of the complaint or initiatory
pleading and the applicant's affidavit and bond, upon the adverse
Temporary Restraining Status Quo Ante party in the Philippines.
Order Order
Its purpose is to preserve the Its purpose is to maintain the However, where the summons could not be served personally or
status quo until the hearing of last, actual, peaceable and by substituted service despite diligent efforts, or the adverse party
the application for preliminary uncontested state of things is a resident of the Philippines temporarily absent therefrom or is
injunction. which preceded the a nonresident thereof, the requirement of prior or
controversy. contemporaneous service of summons shall not apply.
A TRO is prayed for by the It may be issued if the affected
applicant in his pleading or in a party did not seek the relief or (d) The application for a temporary restraining order shall
motion. the allegations in his pleading thereafter be acted upon only after all parties are heard in a
did not sufficienly make out a summary hearing which shall be conducted within twenty-four
case for a temporary restraining (24) hours after the sheriff's return of service and/or the records
order. are received by the branch selected by raffle and to which the
records shall be transmitted immediately.
[This is always issued at the [It might be that the allegations
instance of the TRO, even that are insufficient or did not pray Requirements for Preliminary Injunction (Rule 58, Section 4)
of an ex-parte TRO.] for it, but the court deems it 1. There must be a verified* application; (note that there is now
necessary in equity to preserve a change on verification under amended rules).
the status quo]. 2. It must be issued only upon a clear showing that the following
The order is issued at the The order is issued by the court requisites are established:
instance of application of the motu proprio on equitable a. The applicant has a clear and unmistakable right
parties. considerations. that must be protected;
As the name of the writ itself It is more in the nature of a b. There is a material and substantival invasion of such
implies, a TRO restrains the cease and desist order, since it right; and
doing of certain acts. neither directs the doing or c. There is an urgent need for the writ to prevent
undoing of acts. irreparable injury ot the applicant.
The applicant is required to post A status quo order does not (SY v. AUTOBUS TRANSPORT, GR 176898 [2012]).
a bond. require the posting of a bond.
December 12, 2020 Part 2 by Benrich Tan
Section 3. Grounds for issuance of preliminary injunction.
Clear and Unmistakable Right
— A preliminary injunction may be granted when it is
A right to be protected by injunction means a right clearly founded on
established:
or granted by law or is enforceable as a matter of law.An injunction is
(a) That the applicant is entitled to the relief demanded, and the not a remedy to protect or enforce contingent, abstract, or future rights;
whole or part of such relief consists in restraining the commission it will not issue to protect a right not in esse (not an existent nor present
or continuance of the act or acts complained of, or in requiring the right), and which may never arise, or to restrain an act which does not
performance of an act or acts either for a limited period or give rise to a cause of action.
perpetually;
When the complainant's right is doubtful or disputed, he does not have
(b) That the commission, continuance or non-performance of the a clear legal right and, therefore, injunction is not proper.
act or acts complained of during the litigation would probably
work injustice to the applicant; or SUMIFRU v. CERENO
G.R. No. 218236, February 7, 2018
(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 Petitioner cannot lay claim to an actual, clear, and positive right as
act or acts probably in violation of the rights of the applicant to entitle it to the issuance of a writ of preliminary injunction based
respecting the subject of the action or proceeding, and tending to on an expired service contract. No court can compel a party to agree
render the judgment ineffectual. to a continuation of an admittedly expired contract through the
instrumentality of a writ of preliminary injunction since a contract can
Section 4. Verified application and bond for preliminary be renewed, revived, or extended only by mutual consent of the
injunction or temporary restraining order. — A preliminary parties.
injunction or temporary restraining order may be granted only
when: Sir Espejo: This is a good example of mutuality of contracts, where
contracts take effect inbetween the parties where they are free to
(a) The application in the action or proceeding is verified, and stipulate, including its extension. The court cannot by itself extend
shows facts entitling the applicant to the relief demanded; and the contract when it has already expired based on its terms.

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Irreparable Injury Sir Espejo: A writ of injunction cannot restrain criminal prosecution, but
Damages are irreparable within the meaning of the rule relative to the in the books you are using, they will always include the seven exceptions
issuance of injunction where there is no standard by which their amount on when injunction is allowed to restrain criminal prosecution.
can be measured with reasonable accuracy. If the injury alleged by the
applicant is capable of pecuniary estimation, the writ should not be EYE CONSTRUCTION v. VALIANT ROLL FORMING SALES
issued. There would also be no basis for the issuance of the injunctive CORP
writs because it can be compensable through the award of damages. GR 207938, October 11, 2017
Thus, when you talk about irreparable injury, it cannot be quantified nor
reduced by money. (City Government of Baguio v. Masweng, GR No. Note: Not discussed by Sir Espejo. He highly encouraged the class to
195905, July 4, 2018). read this case to fully understand the test of irreparable injury.

An irreparable injury to authorize an injunction consists of "a serious Injury is considered irreparable if "there is no standard by which [its]
charge of, or is destructive to, the property it affects, either physically amount can be measured with reasonable accuracy." The injury must
or in the character in which it has been held and enjoined, or when the be such that its pecuniary value cannot be estimated, and thus,
property has some peculiar quality or use, so that its pecuniary value cannot fairly compensate for the loss. For this reason, the loss of
will not fairly recompense the owner of the loss thereof. (SSS v. Bayona, goodwill and business reputation, being unquantifiable, would be
115 Phil 105 (1962)) considered as grave and irreparable damage.

POWER SITES v. UNITED NEON In Yu v. Court of Appeals, this Court granted an exclusive distributor's
GR No. 163406, November 24, 2009 prayer for an injunctive writ to prevent a competitor from selling the
same product on the ground that the continued sale would "[render]
Facts: illusory . . . the very purpose for which the exclusive distributorship
Power Sites and Signs, Inc. (Power Sites) is a corporation engaged was conceptualized, at the expense of the sole authorized
in the business of installing outdoor advertising signs or billboards. It distributor."
applied for, and was granted, the necessary permits to construct a
billboard on a site located at Km. 23, East Service Road, Alabang, In Semirara Coal Corporation v. HGL Development Corporation, this
Muntinlupa (the site). After securing all the necessary permits, Power Court upheld the issuance of a writ of mandatory injunction to
Sites began to construct its billboard on the site. prevent Semirara Coal Corporation's (Semirara) continued intrusion
on HGL Development Corporation's (HGL) property. It also found that
Subsequently, in March 2002, petitioner discovered that respondent Semirara damaged HGL's business standing when it prevented HGL
United Neon, a Division of Ever Corporation (United Neon), had also from operating its cattle-grazing business on its property, which
began installation and erection of a billboard only one meter away ''[was] perceived as an inability by HGL to comply with the demands
from its site and which completely blocked petitioner’s sign. of its customers and sow[ed] doubts in HGL's capacity to continue
doing business."
Power Sites filed on July 1, 2002, a Petition for Injunction with Writ
of Preliminary Injunction and Prayer for Temporary Restraining Order In Philippine National Bank v. RJ Ventures Realty & Development
and Damages16 against United Neon before the Regional Trial Corporation, this Court affirmed the issuance of a writ of preliminary
Court.The RTC granted petitioner’s prayer for the issuance of a injunction to enjoin the extrajudicial foreclosure of Rajah
preliminary injunction, and held that the plaintiff is entitled to the Broadcasting Network's radio equipment pending the resolution of
relief sought considering that the commission and/or continuance of the main case questioning the mortgage. This Court found that the
the act of installing the signage by the respondent during the foreclosure would stop the operations of Rajah Broadcasting
litigation would work grave injustice and irreparable damage to Network's radio stations. The loss of its listenership and the damage
petitioner since it would surely cause immense loss in profit and to its image and reputation would not be quantifiable, and thus,
possible damage claims from its clients because it would certainly would be irreparable.
cover the sign of the petitioner's clients.
Urgent and Paramount Necessity
Held: The applicant must prove the urgency of the application. A plea for an
A writ of preliminary injunction should be issued only to prevent injunctive writ lies upon the existence of a claimed emergency or
grave and irreparable injury, that is, injury that is actual, substantial, extraordinary situation which should be avoided for otherwise, the
and demonstrable. Here, there is no "irreparable injury" as outcome of a litigation would be useless as far as the party applying for
understood in law. Rather, the damages alleged by the petitioner, the writ is concerned. (PPA v. Cipres Stevedoring & Arrastre Inc., GR No.
namely, "immense loss in profit and possible damage claims from 145742, July 14, 2005)
clients" and the cost of the billboard which is "a considerable amount
of money" is easily quantifiable, and certainly does not fall within the It is to be resorted to only when there is a pressing necessity to avoid
concept of irreparable damage or injury as described in Social injurious consequences which cannot be remedied under any standard
Security Commission v. Bayona. of compensation. (Estares v. CA, GR No. 144755, June 8, 2005)

Here, any damage petitioner may suffer is easily subject to Injunction would not lie where the acts sought to be enjoined had
mathematical computation and, if proven, is fully compensable by already become fait accompli, or in other words, already consummated,
damages. The writ of injunction should never issue when an action so why would there by any urgency or paramount necessity. (Marquez
for damages would adequately compensate the injuries caused. The v. Alindog, GR No.184045, January 22, 2014)
very foundation of the jurisdiction to issue the writ rests in the
probability of irreparable injury, the inadequacy of pecuniary Procedural Requirements
compensation, and the prevention of the multiplicity of suits, and Under the first part of Section 4, a preliminary injunction OR temporary
where facts are not shown to bring the case within these conditions, restraining order ma be granted only when two procedural requirements
the relief of injunction should be refused. are complied with by the applicant.
1. The application for the injunction must be verified and shows facts
BPI v. HONTANOSAS, JR. entitling the applicant to the relief demanded.
GR No. 157163, June 25, 204 2. The applicant must file with the court where the action or
proceeding is pending, a bond executed to the party or person
Fear of potential loss of possession and ownership, or facing a enjoined, in an amount to be fixed by the court.
criminal prosecution also do not constitute the requisite irreparable
injury that would warrant the issuance of the writ of injunction.

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In short, the rule requires a VERIFIED APPLICATION and an return of service and/or the records are received by the branch selected
INJUNCTION BOND. by raffle (Rule 58, Sec. 4).

With respect to the latter requirement, this bond is to to the effect that When preventive injunction or TRO does not lie
the applicant will pay to such party or person all damages which he may 1. To restrain collection of taxes, except where there are special
sustain by reason of the injunction or temporary restraining order if the circumstances that show irreparable injury. (Angeles City v. AEC,
Hearing Officer should finally decide that the applicant was not entitled GR No. 166134, June 29, 2010)).
thereto. Upon approval of the requisite bond, a writ of preliminary
injunction shall be issued. The prohibition on the issuance of a writ of preliminary injunction
to enjoin the collection of taxes applies only to national internal
Note that the applicant may be exempted by the court from filing such revenue taxes, and not to local taxes. If you do not agree with the
bond. tax assessment, you cannot refuse to pay it, but you can only pay
under protest, as well as a prayer that the BIR will decide in your
Sir Espejo: I like filing a preliminary injunction, because as per the favor and refund the taxes erroneously paid.
Katarungang Pambarangay Law (RA 7160), the requirement of prior
barangay concilitation does not apply when the case is coupled with a Unlike the National Internal Revenue Code, the Local Tax Code31
prayer for provisional remedy. does not contain any specific provision prohibiting courts from
enjoining the collection of local taxes. Such statutory lapse or
How writ is applied for intent, however it may be viewed, may have allowed preliminary
Under Section 1, a preliminary injunction is an order granted at any injunction where local taxes are involved but cannot negate the
stage of an action or proceeding prior to the judgement or final order. procedural rules and requirements under Rule 58.
Baed on this, the application for the issuance of the writ may be made
earlier either in the complaint or any initiatory pleading, if the grounds Nevertheless, it must be emphasized that although there is no
for issuance were available a the time of filing of the case, or by way of express prohibition in the LGC, injunctions enjoining the collection
a verified motion if not otherwise previously prayed for in the complaint of local taxes are frowned upon. Courts therefore should exercise
or initiatory pleading. extreme caution in issuing such injunctions.

An example would be if the grounds for injunction were not readily 2. To retrain the sale of conjugal properties where the claim can be
apparent at time of the filing of the complaint, and later on, the party annotated on the title as a lien, such as the husband’s obligation
later on realizes that he wanted to file an injunction, thus he can do by to give support.
motion after he files his pleadings.
3. To restrain registered owners of the property from selling,
When an application for a TRO is included in a complaint or any initiatory disposing and encumbering their property just because the
pleading, the case, if filed in a multiple-sala court, shall be raffled only respondents had executed Deeds of Assignment in favor of the
after notice to the adverse party or the person to be enjoined. petitioner. [Tayag v. Lacson (2004)]

In any event, such notice shall be preceded, or contemporaneously 4. Against consummated acts, unless the act is of a continuing nature
accompanied, by service of summons, together with a copy of the and I derogation of plaintiff’s right at the outset.
complaint or initiatory pleading and the applicant’s affidavit, upon the
adverse party in the Philippines. Other instances where writ is not available
1. The implementation of the provisions of the Act shall not be
This is the Rule on Prior or Contemporaneous Service of Summons. restrained or enjoined except by an order issued by the Supreme
Court of the Philippines. (Sec 78, RA 9136)
The requirement of prior or contemporaneous service of summons shall
not apply in the following situations: 2. No court of the Philippines shall have jurisdiction to issue any
1. Where the summons could not be served personally or by restraining order, preliminary injunction or preliminary mandatory
substituted service despite diligent efforts; injunction in any case involving or growing out of the issuance,
2. Where the adverse party is a resident of the Philippines but is approval or disapproval, revocation or suspension of, or any action
temporarily absent therefrom; or whatsoever by the proper administrative official or body on
3. Where the adverse party is a nonresident of the Philippines. concessions, licenses, permits, patents, or public grants of any kind
in connection with the disposition, exploitation, utilization,
Temporary Restraining Order exploration, and/or development of the natural resources of the
Temporary Restraining Injunction Philippines. (Sec 1, PD 605)
Order
May be granted ex parte if great Cannot be granted without 3. No restraining order, temporary or permanent injunction shall be
and irreparable injury would notice and hearing issued by the court against any government financial institution in
otherwise result any action taken by such institution in compliance with the
mandatory foreclosure provided in Section 1 hereof, whether such
Please note that the issuance of the TRO may be granted ex parte. The restraining order, temporary or permanent injunction is sought by
requirement of notice or in the presence of the adverse party or the the borrower(s) or any third party or parties, except after due
person to be enjoined only applies to raffling, because it could be that hearing in which it is established by the borrower and admitted by
the TRO was granted by the Executive Judge, and only after that was the government financial institution concerned that twenty percent
there notice. (20%) of the outstanding arrearages has been paid after the filing
of foreclosure proceedings. (Sec 2, PD 385)
A TRO is issued in order to preserve the status quo until the hearing of
the application for preliminary injunction. (Bacolod City WWater v. 4. Except for the Supreme Court, no court in the Philippines shall have
Labayen (2004)). jurisdiction to issue any restraining order or writ of preliminary
injunction against the PARC, the DAR, or any of its duly authorized
It has the same requirements for application as preliminary injunction. or designated agencies in any case, dispute or controversy arising
The only difference is the manner of issuance. from, necessary to, or in connection with the application,
implementation, enforcement, or interpretation of this Act and
The application for a temporary restraining order shall thereafter be other pertinent laws on agrarian reform. (Sec 55, RA 6657 as
acted upon only after all parties are heard in a summary hearing which amended by RA 9700)
shall be conducted within twenty-four (24) hours after the sheriff's

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5. Ban on issuance of TRO or Writ of Injuntion in cases involving

government infrastructure projects, whereby no court, except the Discussion: Under Rule 58, Section 5, no preliminary injunction shall
Supreme Court, shall issue any temporary restraining order, be granted without hearing and prior notice to the party or person
preliminary injunction or preliminary mandatory injunction against sought to be enjoined. That’s the distinction between a TRO and an
the government, or any of its subdivisions, officials or any person actual writ of preliminary injunction. A writ of preliminary injunction
or entity, whether public or private acting under the government cannot be issued ex parte, there must always be notice and hearing.
direction, to restrain, prohibit or compel the following acts:
Temporary Restraining Order
a) Acquisition, clearance and development of the right-of-way General Rule: Before preliminary injunction may be granted, there
and/or site or location of any national government project; must be prior notice to the person sought to be enjoined and there must
b) Bidding or awarding of contract/ project of the national be a hearing.
government as defined under Section 2 hereof;
c) Commencement prosecution, execution, implementation, Exception: Great or irreparable injury or extreme urgency, which
operation of any such contract or project;1awphil.net™ warrants the issuance of a TRO.
d) Termination or rescission of any such contract/project; and
e) The undertaking or authorization of any other lawful activity Procedure for Issuance of Writ of Preliminary Injunction
necessary for such contract/project. When an application for a writ of preliminary injunction or TRO is
included in a complaint or initiatory pleading, the case, if filed in a
Example: A party who lost in a government bidding filed a wrt of multiple-sala court, shall proceed as follows:
injunction out of spite. This is not allowed. (1) Verified complaint and bond is filed
(2) Determine if there is great or irreparable injury or extreme
This prohibition shall not apply when the matter is of extreme urgency, which warrants the issuance of a TRO
urgency involving a constitutional issue, such that unless a  If yes, go to Procedure for Issuance of TRO
temporary restraining order is issued, grave injustice and (3) In both cases, notice shall then be served to the party sought
irreparable injury will arise. to be enjoined. There must be prior and contemporaneous
service of summons (exceptions also apply).
6. Except for the Court of Appeals and the Supreme Court, no other
court shall issue any temporary restraining order, preliminary Procedure for Issuance of TRO
injunction or preliminary mandatory injunction against the (1) If it appears that great or irreparable injury would result to
Commission in the exercise of its duties or functions (Sec 47, RA the applicant before the matter can be heard on notice:
10667) a. Summary hearing on the application of the TRO
within 24 hours after sheriff’s return of service
7. No court below the Court of Appeals shall have jurisdiction to issue and/or records are received by the branch selected
a restraining order, preliminary injunction, or preliminary by raffle
mandatory injunction in any case, dispute, or controversy that b. The court may issue a TRO effective for 20 days
directly or indirectly interferes with the exercise of the powers, from service on the party sought to be enjoined
duties and responsibilities of the Securities and Exchange
Commission that falls exclusively within its jurisdiction. (Sec 179 of Within the 20 day period:
the New Corporation Code)  The applicant must show cause why injuction should not be
granted
December 12, 2020 Part 3 by Ergel Rosal  The court will determine whether or not the preliminary
injunction shall be granted. If granted, the court will issue the
BAR QUESTION 2019: Mrs. G defaulted in the payment of her loan corresponding order.
obligation with Z Bank. As such, Z Bank extra-judicially foreclosed Mrs.
G's mortgaged property and sold it at public auction where it emerged Discussion: When you look at the nature of a TRO by itself, it is simply
as the highest bidder. Eventually, a certificate of sale was issued in Z meant to preserve the rights of the parties before the court can hear the
Bank's favor, and title to the property was later consolidated under the main application for the issuance of the actual writ of preliminary
bank's name. injunction.

Claiming that Z Bank used fraudulent machinations in increasing the Ideally, what the court will do will be to have the hearing on the issuance
interest and penalty charges on the loan, thereby making it impossible of the writ of preliminary injunction itself within the effectivity of the 20-
for her to pay, Mrs. G filed before the Regional Trial Court (RTC) a day TRO.
complaint for cancellation of consolidation of ownership over a real
property with prayer for the issuance of a writ of preliminary injunction So there’s a difference. For a 20-day TRO, within the 20 days the hearing
against Z Bank. Immediately thereafter, the RTC issued an ex parte writ should be done, ideally. But there are instances that the 20 day period
of preliminary injunction enjoining Z Bank from disposing of the will lapse without there being a hearing. It happens a lot.
foreclosed property or taking possession thereof.
If the matter is of extreme urgency and the applicant will suffer grave
Did the RTC err in issuing the writ of preliminary injunction ex parte? injustice and irreparable injury:
Explain. (3%) (a) A TRO may be issued ex parte ordered by the Executive Judge
of a multiple-sala court or the Presiding Judge of a single-sala
Suggested Answer: The RTC erred in issuing the preliminary court.
injunction ex parte, for two reasons:  This is the only time that a TRO can be issued ex
parte.
First, under Rule 58, Section 5, no preliminary injunction shall be granted  Example of a multiple-sala court: RTCs in Davao
without hearing and prior notice to the party or person sought to be City. It will be the Executive Judge who will issue
enjoined. Because the writ was issued ex parte, the RTC violated this the TRO ex parte.
fundamental procedural rule.
(b) Effective for 72 hours from issuance:
Second, it is axiomatic that injunction does not lie against consummated  The applicant must then immediately comply with
acts. Here, the acts ought to be enjoined, the disposition and taking Sec. 4 as to service of summons and documents
possession of the property, are already fait accompli as Z Bank has in  The Executive Judge shall then summon the parties
fact foreclosed and sold the property at auction sale. Thus, on this to a conference and raffle the case in their presence
ground, the RTC was clearly in error when it issued the writ.

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Discussion: Take note that there is only raffling after the 72-hour TRO
is issued. This is the confusion between a 20-day and a 72-hour TRO. Third, the 20-day TRO may evolve into a writ of preliminary injunction
When the law says that the TRO can only be issued upon notice and [after notice and hearing].
after the parties have been summoned for raffling, it is talking about the
20-day TRO. Fourth, after trial, the writ of preliminary injunction may be replaced by
a writ of permanent injunction.
Within the 72 hour period:
 The Presiding Judge before whom the case is pending shall Grounds for Objection to/Motion for Dissolution
conduct a summary hearing to determine whether the TRO of Injunction/Restraining Order [Rule 58, Sec. 6]
shall be extended until application for preliminary injunction (a) Insufficiency of Application
can be heard. (b) Other grounds (e.g. applicant’s bond is
o [If extended] This is the time where the 72-hour insufficient/defective). Upon affidavits of the party or person
TRO is converted or evolves into a 20-day period. enjoined
 In no case shall the total period of effectivity of the TRO (c) If it appears after hearing that although the applicant is
exceed 20 days, including the original 72 hours. entitled to the injunction or restraining order, the issuance
or continuance thereof would cause irreparable damage to
20-DAY TRO 72-HOUR TRO the party/person enjoined, while the applicant can be fully
Ground for Great or irreparable The matter is of compensated for such damages as he may suffer, provided
issuance injury would result to extreme urgency and the former files a bond [counterbond]
the applicant before applicant will suffer
the matter can be grave and irreparable Extension or Renewal of TRO
heard on notice. injury. A temporary restraining order (TRO) cannot be extended or renewed
By whom By the court to which By the Presiding indefinitely as it is not meant as a substitute for a writ of preliminary
issued the application for Judge of a single-sala injunction. However, as Riano aptly observed, extending or renewing a
preliminary injunction court or the Executive TRO is prohibited only if the extension or renewal is based on the very
was made. Judge of a multiple- same ground upon which the TRO was originally issued. If another basis
sala court. or ground should exist aside from the original ground relied upon while
What court The court: The court conducts the TRO is in effect, an extension or renewal of the order could be made,
does within (1) Orders the party summary hearing to subject to the same period limitations.
the period or person determine if TRO will
enjoined to be extended until the BAR QUESTION 2017: A temporary restraining order (TRO) was
show cause at a application for issued on September 20, 2017 by the RTC against defendant Jeff
specified time preliminary injunction enjoining him from entering the land of Regan, the plaintiff. On October
and place, why can be heard 9, 2017, upon application of Regan, the trial court, allegedly in the
the injunction including the original interest of justice, extended the TRO for another 20 days based on the
should not be 72 hours. same ground for which the TRO was issued. On October 15, 2017, Jeff
granted; and entered the lan subject of the TRO.
(2) Determines
whether or not May Jeff be liable for [indirect] contempt of court? Why?
the preliminary
injunction shall Suggested Answer: No. Jeff may not be held liable for contempt as
be granted and the TRO was improvidently extended.
accordingly
issue the Rule 58, Section 5 provides in part that the effectivity of a temporary
corresponding restraining order is not extendible without need of any judicial
order. declaration to that effect and no court shall have authority to extend or
(3) renew the same on the same ground for which it was issued.
When issued After raffling Before raffling
In the present case, the trial court, allegedly in the interest of justice,
Duration of a TRO extended the TRO for another 20 days based on the same ground for
General Rule: TRO is effective only for a period of 20 days from service which the original TRO was issued. The trial court was therefore in error
on the party or person sought to be enjoined. when it ordered such extension.

Exception: If the matter is of extreme emergency and the applicant In view of the foregoing, Jeff’s act of entering the land is not
will suffer grave injustice and irreparable injury in which case a 72- contemptible.
hour TRO may be issued.

Issued By Effective
20 days, non-extendible
RTC
(including the original 72 hours)
May be effective for 60 days
CA from service on the party or
person sought to be enjoined
May be effective until further
SC
orders

Procedural Evolution of an Injunctive Relief

First, in cases of extreme urgenct, etc., the court can issue a 72-hour
TRO. Otherwise, the court may issue a TRO effective for 20 days.

Second, a 72-hour TRO may evolve into a 20-day TRO [if the court
determines that there is a need to extend it before the main prayer for
the issuance of the writ of preliminary injunction may be heard].

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(2) The court may appoint a receiver of the property of the

RULE 59 judgment obligor; and it may also forbid a transfer or ther
RECEIVERSHIP disposition of, or any interference with, the property of the
judgment obligor not exempt from execution. [Rule 39, Sec.
41]
Receiver (3) After the perfection of an appeal, the trial court retains
A receiver is a person appointed by the court in behalf of all the parties jurisdiction to appoint a receiver of the property under
to the action for the purpose of preserving and conserving the property litigation since this matter does not touch upon the subject of
in litigation and prevent its possible destruction or dissipation, if it were the appeal. [Rule 41, Sec. 9; Acuña v. Caluag (1957)]
left in the possession of any of the parties. The appointment of a receiver (4) After final judgment, a receiver may be appointed as an aid
is not a matter of absolute right. [Commodities Storage v. CA, 274 SCRA to the execution of judgment. [Philippine Trust Company v.
439] Santamaria (1929)]

Purpose Requisites and Procedure

To protect and preserve the rights of the parties during the pendency of (a) Verified application filed by the party requesting for the
the main action, during the pendency of an appeal or as an aid in the appointment of the receiver;
execution of a judgment when the writ of execution has been returned (b) Applicant must have an interest in the property or funds
unsatisfied. subject of the action;
(c) Applicant must show that the property or funds is in danger
Discussion: Compared to Rule 57 on attachment and Rule 58 on of being lost, wasted, or dissipated;
injunction, receivership can be availed of even if there is already a (d) Application must be with notice and must be set for hearing
judgment or even when there is already a writ of execution. [cannot be issued ex parte];
(e) Before appointing a receiver, the court shall require
The receivership under Rule 59 is directed to the to the property which applicant to post a bond in favor of the adverse party.
is the subject of the action and does not refer to the receivership When the receiver is appointed, the receiver shall file a
authorized under the banking laws and other rules or laws. bond then take his oath;
(f) Before entering upon his duties, the receiver must be sworn
Rule 59 presupposes that there is an action and that the propert subject to perform his duties faithfully.
of the action requires its preservation. Receivership under Rule 59 is
ancillary to the main action. Discussion: Take note there are two bonds here. The receivership bond
or the applicant’s bond and the receiver’s bond. The point of the
After final judgment, a receiver may be appointed as an aid to the receiver’s bond is to ensure the faithful execution by the receiver of his
execution of judgment. functions.

Appointment of a receiver over the property in custodia legis may be Who Appoints Receiver
allowed when it is justified by special circumstances, as when it is (a) Court where the action is pending
reasonably necessary to secure and protect the rights of the real owner. (b) Court of Appeals
(c) Supreme Court
ARANZA v. B.F. HOMES, INC. (d) During the pendency of an appeal, the appellate court may
33 SCRA 799 allow an application for the appointment of a receiver to be
filed in and decided by the court of origin. [Rule 59, Sec. 1]
Receivership is aimed at the preservation of, and at making more secure,
existing rights. It cannot be used as an instrument for the destruction Denial of Application or Discharge of Receiver
of those rights. (a) If the appointment sought or granted is without sufficient
cause
When may a Receiver be Appointed (b) Adverse party files a sufficient bond [counterbond] to answer
(a) When it appears from the verified application and other for damages [Rule 59, Sec. 3]
proof that the applicant has an interest in the property (c) Bond posted by the applicant for grant of receivership is
or fund which is the subject of the action or proceeding, and insufficient
that such propert or fund is in danger of being lost, (d) Bond of receiver is insufficient
removed, or materially injured unless a receiver be
appointed to administer and preserve it; Powers of a Receiver
(b) When it appears in an action by the mortgagee for the (a) Bring and defend in such capacity actions in his own name
foreclosure of a mortgage that the property is in danger of with leave of court
being wasted or dissipated or materially injured, and (b) Take and keep possession of the property in controversy
that its value is probably insufficient to discharge the (c) Receive rents
mortgage debt, or that the parties have so stipulated in the (d) Collect debts due to himself as receiver or to the fund,
contract of mortgage; property, estate, person, or corporation of which he is the
(c) After judgment, to preserve the property during the pendency receiver
of an appeal, or to dispose of it according to the judgment, or (e) Compound for and compromise the same
to aid execution when the exectuin has been returned (f) Make transfers
unsatisfied or the judgment obligor refuses to apply (g) Pay outstanding debts
his property in satisfaction of the judgment, or (h) Divide the money and other property that shall remain among
otherwise to carry the judgment into effect; the persons legally entitled to receive the same
(d) Whenever in other cases it appears that the appointment of a (i) Generally, to do such acts respecting the property as the court
receiver is the most convenient and feasible means of may authorize
preserving, administering, or disposing of the (j) Invest funds in his hands, ONLY by order of the court upon
property in litigation [Rule 59, Sec. 1]. written consent of all the parties. [Rule 59, Sec. 6]

Specific Cases Note: No action may be filed against a receiver without leave of the
(1) If a spouse without just cause abandons the other or fails to court which appointed him. So in a way there is a bit of immunity from
comply with his/her obligations to the family, the aggrieved suit if he is performing his functions as a receiver.
spouse may petition the court for receivership. [Family Code,
Article 101]

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Nature of the Duties of the Receiver The Rules provide that receivership is proper in an action by the
A receiver is not an agent or representative of any party to the action. mortgagee for the foreclosure of a mortgage when it appears that the
He is an officer of the court exercising his functions in the interest of property is in danger of being wasted or dissipated or materially injured
neither plaintiff nor defendant, but for the common benefit of all parties and that its value is probably insufficient to discharge the mortgage
in interest. [Pacific Merchandising Corporation v. Consolacion Insurance, debt.
73 SCRA 564]
Discussion: Jose was quietly and gradually disposing of some of his
Liability for Refusal or Neglect to Deliver machinery and equipments. It is also a ground for attachment. The only
Property to Receiver difference is that in attachment, in the factual milleu of the problem,
(a) Contempt; and there must be an indication of fraud or intent to defraud. Also, note that
(b) Be liable to the receiver for the money or the value of the attachment can only be availed of when there is yet no final judgment.
property and other things so refused or neglected to be Meanwhile receivership can be availed of even if there is already a final
surrendered together with all damages that may have been judgment, pending appeal, or even when there is a writ of execution but
sustained by the party or parties entitiled thereto as a it has remained unsatisfied. So this specific case alludes to receivership,
consequence of such refusal or neglect. [Rule 59, Sec. 7] not attachment.

Bonds under Rule 59 Distinction between a Receiver (Rule 59)

(a) Applicant’s bond [Section 2] and a Commissioner (Rule 32)
The court may, in its discretion, at any time after the Receiver Commissioner
appointment, require an additional bond as further security Both are merely deputized as officers of the court. Not every case
for damages. will have a receiver or a commissioner.
(b) Receiver’s bond [Section 4] Both are entitled to reasonable compensation, to be taxed as costs
(c) Counterbond [Section 3] against the defeated party, or apportioned, as justice requires.
Both the receiver and commissioner are required to take an oath
Applicant’s Bond Counterbond Receiver’s Bond prior to the performance of their duties.
Executed to the Executed to the Executed to such The purpose of a receiver is to The purpose of a commissioner
party against whom applicant to the effect person and in preserve and conserve the is to aid the court in
the application is that such party will such sum as the property in litigation and determining a factual manner.
presented to the pay the applicant all court may direct, prevent its possible destruction
effect that the damages he may to the effect that or dissipation.
applicant will pay suffer by reason of the he will faithfully A receiver can bring and defend A commissioner, as a mere
such party all acts, omissions, or discharge his actions in relation to the referee, cannot bring and
damages he may other matters specified duties in the property in litigation. defend actions.
sustain by reason of in the application as action or
A commissioner is a hearing
the appointment of ground for such proceeding and
officer who may regulate the
such receiver. appointment. obey the orders
A receiver cannot hear the proceedings in every hearing
of the court. parties or receive evidence. before him, swear witnesses,
and even rule upon the
Termination of Receivership admissibility of evidence.
Ground: The necessity for a receiver no longer exists.
A receiver may request The commissioner himself may
documents but, in such case, he issue subpoenas and subpoenas
Procedure
can only request the issue duces tecum.
(a) Motu proprio or on motion of either party
subpoenas.
(b) Notice to all interested parties and hearing [Rule 59, Sec.
A bond is required under Rule No bond is required of a
8]
59, Sec. 4. commissioner.
Effect
The court shall:
(a) Settle account of receiver
(b) Direct the delivery of funds to the person entitled
(c) Discharge the receiver
(d) 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.

BAR QUESTION 2001: Joaquin filed a complaint against Jose for the
foreclosure of a mortgage of a furniture factory with a large number of
machinery and equipment. During the pendency of the foreclosure suit,
Joaquin learned from reliable sources that Jose was quietly and
gradually disposing of some of his machinery and equipment to a
businessman friend who was also engaged in furniture manufacturing
such that from confirmed reports Joaquin gathered, the machinery and
equipment left with Jose were no longer sufficient to answer for the
latter’s mortgage indebtedness. In the meantime, judgment was
rendered by the court in favor of Joaquin but the same is not yet final.

Knowing what Jose has been doing, if you were Joaquin’s lawyer, what
action would you take to preserve whatever remaining machinery and
equipment are left with Jose? Why? (5%)

Suggested Answer: To preserve whatever remaining machinery and

equipment are left with Jose, Joaquin’s lawyer should file a verified
complaint for the appointment by the court of one or more receivers.

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 31

a real action or a personal action? Because it does not involve the privity
RULE 60 of real estate, it’s a PERSONAL action.
REPLEVIN Unsa gani ang consequence if we treat an action as a personal action?
It will determine what? VENUE of the action.
December 12, 2020 Part 1 by Jezza Mariz Alo If it is a PERSONAL ACTION, dapat magfollow ta sa rule on venue sa
personal actions and that would be RESIDENTIAL, in a way.
Today we will start our discussion pero magsugod ta sa Rule 60 which
is Replevin. What about when we describe replevin as an action in rem, an action in
personam, an action quasi in rem, what’s the significance gani ana?
Section 1. Application. — A party praying for the recovery of
possession of personal property may, at the commencement of the 1. For significance, whether or not personal service of summons
action or at any time before answer, apply for an order for the in the Philippines is required over the defendant.
delivery of such property to him, in the manner hereinafter Otherwise if it is an action in rem or action quasi in rem,
provided. (1a) pwede na walay personal service of summons.
What else?
Definition
2. Binding Effect. We need to remember binding effect. What’s
Replevin is an action whereby the owner or person entitled to the binding effect of an action in rem? It is binding against
repossession of goods or chattels may recover those goods or chattels the whole world.
from one who has wrongfully distrained or taken or who wrongfully
But when you talk about an action in personam, it is only
detains such goods or chattels.
binding upon the parties to the action.
SIR: So in essence, what replevin is, it’s like a different actions for Just to review you in the matter of consequences of the action
recovery of possession pero in this situation, what we are trying to of this and that.
recover is actually personal property or property that is capable of
manual delivery. And of course pag-abot nato sa mga examples makita As an action in rem, the gist of the replevin action is the right of the
nato how this recovery is to be made, what is the reason why recovery plaintiff to obtain possession of specific personal property by reason of
has to be made. his being the owner or of his having a special interest therein (CENTRAL
VISAYAS FINANCE CORP. v. ADLAWAN)
CALO v. ROLDAN
G.R. No. L-252, March 30, 1946 CENTRAL VISAYAS FINANCE CORP v. SPS. ADLAWAN
G.R. No. 212674, March 25, 2019
With particular reference to Rule 60 replevin or delivery of personal
property as a provisional remedy consists in the delivery, by order of In 1996, respondents Eliezer and Leila Adlawan obtained a Php
the court, of a personal property by the defendant to the plaintiff, 3,669,685.00 loan from petitioner Central Visayas Finance
who shall give a bond to assure the return thereof or the payment of Corporation covered by a Promissory Note, Chattel Mortgage over a
damages to the defendant in the plaintiff's action to recover Komatsu Highway Dump Truck, and a Continuing Guaranty executed
possession of the same property fails, in order to protect the by respondent spouses..
plaintiff's right of possession of said property, or prevent the
Respondent spousess failed to pay the loan, prompting petitioner to
defendant from damaging, destroying or disposing of the same
file an action against respondents for replevin before Branch 58 of
during the pendency of the suit.
the Cebu RTC.

In a June 22, 1999 decision, the trial court ruled in petitioner's favor,
Nature of Replevin and respondents were ordered to deliver possession of the dump
Replevin, broadly understood, is both a form of prinicipal remedy and of truck to petitioner. Petitioner then foreclosed on the chattel mortgage
a provisional relief. and caused the sale at public auction of the dump truck, which was
then sold to it as the highest bidder for Php500,000.00.
It may refer to:
In 2000, petitioner commenced a second case before the RTC - this
1. The action itself, i.e., to regain possession of personal chattels
time for collection of sum of money and/or deficiency judgment
being wrongfully detained from the plaintiff by another; or
relative to respondents' supposed unpaid balance on their loan,
2. The provisional remedy that would allow the plaintiff to retain which petitioner claimed to be at Php2,104,604.97 - less the value of
the thing during the pendency of the action and hold it dump truck - with damages. This time, petitioner in its Amended
pendente lite (while the action is pending). Complaint sought to hold respondent spouses liable on their
continuing guaranty.

SIR: So pwede siya principal action in which case it would be RTC dismissed the complaint having been barred by res judicata.
denominated as an action for replevin or pwede pod siya provisional Petitioner appealed before the CA. CA affirmed RTC’s decision.
remedies. It can be a main action coupled with a prayer for replevin or
recovery of possession of property, personal property that is. Before the Court, petitioner pleads that the CA erred in ruling that
res judicata applies to the subsequent case for collection of deficiency
The action is primarily possessory in nature and generally determines against spouses as guarantors in the loan agreement between
nothing more than the right of possession. petitioner and respondents; that the causes of action, parties, and
So similar to interdictal actions, forcible entry and unlawful detainer. reliefs prayed for in Civil Case No. CEB-22294 - the case for replevin
What the court merely determines here would be the better right to - are not identical or similar to the causes of action, parties, and
possess. Wala tay paki-alam sa ownership although ownership may be reliefs prayed for in Civil Case No. CEB-24841 - which is a collection
the basis of the right to possess, similar to interdictal actions. case founded on the liability on the continuing guaranty executed by
respondents.
Take note that: Replevin is so usually described as a mixed action, being
partly in rem and partly in personam – ISSUE: Whether a judgment in a replevin case would bar a
 in rem insofar as the recovery of specific property is subsequent action for deficiency judgment was raised
concerned, and
 in personam as regards to damages involved. RULING:

Take note ngano man kinahanglan nato i-determine ang nature sa Yes. In PCI Leasing & Finance, Inc. v. Dai, the mortgage-creditor had
action. When you talk about replevin, what type of action is that? Is that foreclosed on the mortgaged properties and sold the same at public

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 32

auction during the trial on the action for damages with replevin. After second-hand car sales showroom ("Motortrend" in Katipunan,
judgment on the replevin case was rendered, the mortgage-creditor Quezon City), after the latter claimed that he had a prospective buyer
filed another case, this time for the deficiency amount. The Court therefor.
dismissed the second case on the ground of res judicata.
Ong failed to remit the proceeds of the purported sale nor return the
xxx vehicle. Petitioner later found out that the vehicle had been
transferred to Chua. In December, 2010, petitioner filed a complaint
Replevin, broadly understood, is both a form of principal remedy and before the Quezon City Police District's Anti-Carnapping Section.
of a provisional relief. It may refer either to the action itself, i.e., to
regain the possession of personal chattels being wrongfully detained Ong, upon learning of the complaint, met with petitioner to arrange
from the plaintiff by another, or to the provisional remedy that would the return of the vehicle. Ong still failed to surrender the vehicle.
allow the plaintiff to retain the thing during the pendency of the Petitioner learned that the vehicle was being transferred to
action and hold it pendente lite. The action is primarily possessory in respondent and that the vehicle was later impounded and taken into
nature and generally determines nothing more than the right of custody by the PNP-Highway Patrol Group (HPG) at Camp Crame,
possession. Quezon City after respondent attempted to process a PNP clearance
of the vehicle with a view to transferring ownership thereof.
Replevin is so usually described as a mixed action, being partly in
rem and partly in personam — in rem insofar as the recovery of Petitioner thus prayed that a writ of replevin be issued for the return
specific property is concerned, and in personam as regards to of the vehicle to him, and that the defendants be ordered to pay him
damages involved. As an action in rem, the gist of the replevin action ₱100,000.00 atton1ey's fees and the costs of suit.
is the right of the plaintiff to obtain possession of specific personal
property by reason of his being the owner or of his having a special ISSUE: Whether petitioner may seek the return of the same through
interest therein. replevin

xxx RULING: No.

Contrary to petitioner's stance, the pronouncements in Bachrach The Petition must be denied.
Motor Co., Inc. v. Icarangal and PCI Leasing & Finance, Inc. v. Dai
"In a complaint for replevin, the claimant must convincingly show
apply to the instant case. Particularly, the PCI Leasing case is
that he is either the owner or clearly entitled to the possession of the
squarely applicable; the CA committed no error in invoking the ruling
object sought to be recovered, and that the defendant, who is in
in said case. By failing to seek a deficiency judgment in Civil Case No.
actual or legal possession thereof, wrongfully detains the same."
CEB-22294 (replevin case) after its case for recovery of possession
"Rule 60 x x x allows a plaintiff, in an action for the recovery of
was resolved, petitioner is barred from instituting another action for
possession of personal property, to apply for a writ of replevin if it
such deficiency.
can be shown that he is 'the owner of the property claimed ... or is
entitled to the possession thereof.’ The plaintiff need not be the
Who may apply for a Writ of Replevin? owner so long as he is able to specify his right to the possession of
the property and his legal basis therefor."
1. PLAINTIFF – where the complaint prays for recovery of
possession of personal property; and In Filinvest Credit Corporation v. Court of Appeals, this Court likewise
held that-
2. DEFENDANT – where a counterclaim was set out in the
x x x It is not only the owner who can institute a replevin suit. A
answer for recovery of personal property.
person "entitled to the possession" of the property also can, as
So dili siya limited to an original claiming party also, a defending party. provided in the same paragraph cited by the trial court, which reads:

The claimant must convincingly show that he is either the owner or Sec. 2. Affidavit and bond. - Upon applying for such order the plaintiff
must show...
clearly entitled the owner or clearly entitled to the possession of the
object sought to be recovered, and that the defendant, who is in actual (a) That the plaintiff is the owner of the property claimed, particularly
or legal possession thereof, wrongfully detains the same. describing it, or is entitled to the possession thereof; xxx

The plaintiff need not be the owner so long as he is able to specify his As correctly cited by respondent in his Comment:27
right to the possession of the property and his legal basis therefor. (SIY
x x x [A] party praying for the recovery of possession of personal
v. TOMLIN)
property must show by his own affidavit or that of some other person
who personally knows the facts that he is the owner of the property
Dili kinahanglan na ikaw ang tag-iya. The important thing here would be claimed, particularly describing it, or is entitled to the possession
that naa kay right to possess. By whathever reason you have the right thereof It must be borne in mind that replevin is a possessory action
to possess. Basta naay legal basis for his possession. the gist of which focuses on the right of possession that, in turn, is
dependent on a legal basis that, not infrequently, looks to the
ownership of the object sought to be replevied. Wrongful detention
So we have that case of SIY v. TOMLIN, which talks about the effect of by the defendant of the properties sought in an action for replevin
ownership and transferring of ownership to a subsequent possessor. must be satisfactorily established. If only a mechanistic averment
thereof is offered, the writ should not be issued
SIY v. TOMLIN
From petitioner's own account, he constituted and appointed Ong as
G.R. No. 205998, April 24, 2017
his agent to sell the vehicle, surrendering to the latter the vehicle, all
In July, 2011, petitioner William Anghian Siy filed before the RTC of documents of title pertaining thereto, and a deed of sale signed in
Quezon City a Complaint for Recovery of Possession with Prayer for blank, with full understanding that Ong would offer and sell the same
Replevin against Frankie Domanog Ong (Ong), Chris Centeno to his clients or to the public. In return, Ong accepted the agency by
(Centeno), John Co Chua (Chua), and herein respondent Alvin his receipt of the vehicle, the blank deed of sale, and documents of
Tomlin. title, and when he gave bond in the form of two guarantee checks
worth ₱4.95 million. All these gave Ong the authority to act for and
In his Complaint, petitioner alleged that he is the owner of a 2007 in behalf of petitioner.
model Range Rover with Plate Number ZMG 272 which he purchased
from alberto Lopez III (Lopez) on July 22, 2009. In 2010, he Acting for and in petitioner's behalf by virtue of the implied or oral
entrusted the said vehicle to Ong, a businessman who owned a agency, Ong was thus able to sell the vehicle to Chua, but he failed

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 33

to remit the proceeds thereof to petitioner; his guarantee checks pave the way for the foreclosure of the object covered by the
bounced as well. This entitled petitioner to sue for estafa through chattel mortgage (SERVICEWIDE SPECIALSTS INC., v. CA)
abuse of confidence. This is exactly what petitioner did: on May 18,
2011, he filed a complaint for estafa and carnapping against Ong SIR: So what usually happens is you buy a car. Usually it’s a
before the Quezon City Prosecutor's Office. new car. Then you don’t pay for it in cash. I finance nimo na
karon whether it be by a bank financing corporation and so
There was a contract of agency. Since Ong was able to sell the what usually happens is pahulamon ka ug kwarta para mapalit
subject vehicle to Chua, petitioner thus ceased to be the owner
nimo ang sakyanan.
thereof. Nor is he entitled to the possession of the vehicle; together
with his ownership, petitioner lost his right of possession over the But the bank or the financing institution would require you to
vehicle. His argument that respondent is a buyer in bad faith, when execute a contract of loan with a chattel mortgage over the
the latter nonetheless proceeded with the purchase and registration same car that you bought. Mao na sya ginabuhat usually. So
of the vehicle on March 7, 2011, despite having been apprised of
that kintahay dili ka kabayad sa imong amortization payment
petitioner's earlier November, 2010 "Failed to Return Vehicle" report
filed with the PNP-HPG, is unavailing. when they fall due there is usually a clause in that contract of
loan with chattel mortgage which gives the bank or financing
Petitioner had no right to file said report, as he was no longer the company the right to take possession of the property.
owner of the vehicle at the time; indeed, his right of action is only
against Ong, for collection of the proceeds of the sale. In the meantime what will happen to you? You get the car.
You use the car even if wala kay bayad bayad. So the only
Considering that he was no longer the owner or rightful possessor of way for the bank or the financing institution to obtain redress
the subject vehicle at the time he filed Civil Case No. Q-11-69644 in
sa imuhang violation would be to ask the court to issue a writ
July, 2011, petitioner may not seek a return of the same through
replevin. Quite the contrary, respondent, who obtained the vehicle of replevin, a writ of possession. So that the bank or financial
from Chua and registered the transfer with the Land Transportation institution will be given possession. Ang imuhang wala
Office, is the rightful owner thereof, and as such, he is entitled to its pagbayad, it’s already a cause that can be considered as..
possession. For this reason, the CA was correct in decreeing the what you call that.. it’s not anymore rightful possession over
dismissal of Civil Case No. Q-11-69644, although it erred in ordering the property. So that would usually happens in financing
the return of the vehicle to the PNP-HPG, which had no further right transaction over a car.
to hold the vehicle in its custody. As the registered and rightful owner
of the subject vehicle, the trial court must return the same to 3. In a criminal action where personal property is seized under a
respondent. search warrant and there is reason to believe that the seizure
will not anymore be followed by the filing of a criminal case,
Petitioner cannot be allowed to cut his losses by ostensibly securing
the recovery of the subject vehicle in lieu of its price, which Ong the proper remedy is an action for REPLEVIN. (CHUA v. CA)
failed and continues to fail to remit. SIR: Let’s say for example you’re the respondent in a criminal
case under preliminary investigation with the prosecutor’s
So while the rule is you don’t need to be the owner in order to be entitled
office. In the meantime, na distrain ang imong property
to a writ of replevin but, there are certain instances where you’ve lost
because allegedly it was the effect of a crime. So what
your ownership and no longer holds the property or hold any right to
happens if dili na bitaw mag file ug criminal case? Will that
hold the property after that lost of ownership then, you cannot ask for
remain with the court, in perpuity? Will that be in custodia
a writ of replevin by filing the necessary complaint.
legis forever?
When to File The answer would be NO. So what can we do? You can file an
A party praying for the recovery of possession of personal property may, action for replevin.
(1) at the commencement of the action or (2) at any time before answer, 4. The owner of personal property may also initiate an action for
apply for an order for the delivery of such property to him. replevin against a depositary and recover damages for illegal
distraint. (SUPERLINES v. PNCC)
Thus, a writ of replevin may be obtained when the defendant in the
action has not yet filed his answer to the complaint where it is necessary SIR: Dili i-uli sa imoha ang property na imong gi deposit. You
either to protect plaintiff’s right of possession to property or to prevent can actually file a writ of replevin.
defendant from destroying, damaging or disposing of the property. CASES:
So it could be a situation where you file your main complaint, you did SERVICEWIDE SPECIALSTS INC., v. CA
not ask for a writ of replevin but in the meantime nahibal-an nimo prior G.R. No. 103301, December 8, 1995
to the filing of the answer that the defendant is bent on destroying, The litigation concerns a motor vehicle, a Colt Galant Sigma 1600E,
damaging or disposing the property. 1977 model, 4-door sedan, colored Baikal White, with Serial No. A-
121-UL-493 and Engine No. 2G-171-34.
So what can you do to protect your right na i-litigate pa baya nato kung
kinsa ang naay better right to possess? For example, what do you do? Plaintiff's evidence shows that, on August 29, 1977, Eleuterio Bondoc
You pray for or you move or you file a motion for the issuance of a writ executed and delivered to Carmark Philippines a promissory note in
of replevin but you need to remember that it has to be before the filing the sum of P66,119.04, payable in installments, Exhibit A, and in
of the answer by the defendant. order to secure payment, a chattel mortgage was executed in favor
of Carmark Philippines over the aforementioned motor vehicle,
When Writ May Be Issued
Exhibit B, which was subsequently assigned in favor of Filinvest
1. An application for a writ of replevin may be made in a principal Corporation, with the conformity of Eleuterio Bondoc, Exhibit C.
action for replevin to regain the possession of personal
On July 27, 1979, Eleuterio Bondoc, as vendor, executed a deed of
chattels being wrongfully detained from the plaintiff by
sale with assumption of mortgage of the balance of the account in
another.
favor of Cesar Dollente, Exhibits D and D-1, which, upon approval by
2. It may also prayed for as an interim relief in an action for Filinvest Corporation, Cesar Dollente executed and delivered to
foreclosure of a chattel mortagage where the writ is sought to Filinvest Corporation a promissory note in the amount of P37,528.83,

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 34

payable in installments, Exhibit E. On October 26, 1979, Cesar It would thus seem, considering particularly an adverse and
Dollente, as vendor, executed a deed of sale with assumption of independent claim of ownership by private respondent, that the
mortgage over the aforementioned vehicle for the balance of his lower court acted improvidently when it granted the dismissal of the
account in favor of Ernesto Dollente, Exhibit E. complaint against Dollente, albeit on petitioner's (then plaintiff) plea,
On September 28, 1979, Ernesto Dollente executed and delivered to on the ground that the "non-service of summons upon Ernesto
Filinvest Corporation a promissory note for the sum of P37,528.83, Dollente (would) only delay the determination of the merits of the
payable in monthly installments. This obligation was secured by a case, to the prejudice of the parties."
chattel mortgage executed between Cesar Dollente and Ernesto
Dollente, which was annotated and registered, Exhibit B-1.
CHUA v. CA
Subsequently, Filinvest Corporation assigned all its rights and G.R. No. 79021, May 17, 1993
interests on the promissory note and chattel mortgage to plaintiff,
On April 12, 1986, Judge Lauro V. Francisco of the Regional Trial
with notice to Ernesto Dollente. The original defendant Ernesto
Court of Cebu City Branch XIII, after examining 2Lt. Dennis P. Canoy
Dollente, having defaulted in the payment of the monthly
and two (2) other witnesses, issued a search warrant directing the
installments which fell due on June 15, 1979 up to September 15,
immediate search of... the premises of R.R. Construction located at
1981, plaintiff demanded from said defendant the payment of the
M.J. Cuenco Avenue, Cebu City, and the seizure of an Isuzu dump
entire balance, which includes interest thereon and to return the
truck with plate number GAP-175. At twelve noon of the same date,
motor vehicle in question.
respondent Canoy seized the aforesaid vehicle and took custody
By reason of the refusal of the original defendant to pay the entire thereof.
balance and to surrender possession of the subject motor vehicle,
On April 14, 1986, a civil action for Replevin/Sum of Money for the
this case was filed and, upon its filing, upon motion, a writ of seizure
recovery of possession of the same Isuzu dump truck was filed by
was issued and the same was implemented by the sheriff. A counter-
petitioner against respondent Canoy and one "John Doe" in the
replevin bond having been filed, defendant Armando Custodio, Jr.
Regional Trial Court of Cebu City... alleging among other things,
had obtained possession of the mortgaged vehicle.
petitioner's lawful ownership and possession of the subject vehicle;
Traversing the plaintiffs claim, defendant's evidence shows that, on that he has not sold the subject vehicle to anyone; that he has not
September 8, 1978, defendant Armando Custodio, Jr. obtained the stolen nor carnapped it, and that he has never been... charged of the
motor vehicle in question by purchase from Ernesto Dollente, Exhibit crime of carnapping or any other crime for that matter. Further,
1. Ernesto Dollente bought the same on April 14, 1978 from Venus petitioner questioned the validity of the search warrant and the
Motor Sales, Exhibits 2 and 3. When defendant bought the said subsequent seizure of the subject vehicle on the strength of the
vehicle from Ernesto Dollente, he was issued a clearance from the aforesaid search warrant.
Constabulary Highway Patrol Group, Exhibits 4 and 4-A. Since then
On the same date, April 14, 1986, Judge Cañares of the Regional
defendant has been possessing the vehicle in question. This vehicle
Trial Court of Cebu City Branch VIII directed the issuance of a writ of
was previously registered at Urdaneta, Pangasinan.
replevin upon the posting of a bond in the amount of one hundred
ISSUE: whether or not an action filed by the mortgagee for replevin thousand pesos (P100,000.00). The writ of replevin was also issued
to effect a foreclosure of the property covered by the chattel on the... same date, and the subject vehicle was seized on 15 April
mortgage would require that the mortgagor be so impleaded as an 1986 by Deputy Sheriff Galicano V. Fuentes.
indispensable party thereto.
ISSUE: Whether or not the validity of a seizure made pursuant to a
RULING: Rule 60 of the Rules of Court allows a plaintiff, in an action search warrant issued by a court can be questioned in another branch
for the recovery of possession of personal property, to apply for a of the same court, where the criminal action filed in connection with
writ of replevin if it can be shown that he is "the owner of the which the search warrant was issued,... had been dismissed
property claimed . . . or is entitled to the possession thereof."7 The provisionally.
plaintiff need not be the owner so long as he is able to specify his
RULING: At the outset, it must be pointed out that the ruling made
right to the possession of the property and his legal basis therefor.
by the Office of the City Fiscal in the complaint for carnapping was
The question then, insofar as the matter finds relation to the instant erroneous.
case, is whether or not the plaintiff (herein petitioner) who has
A criminal prosecution for carnapping need not establish the fact that
predicated his right on being the mortgagee of a chattel mortgage
complainant therein is the absolute owner of the motor vehicle. What
should implead the mortgagor in his complaint that seeks to recover
is material is the existence of evidence which would show that
possession of the encumbered property in order to effect its
respondent took the motor vehicle belonging to another.
foreclosure.
Another aspect which needs to be stressed is the fact that since a
The answer has to be in the affirmative.8 In a suit for replevin, a
preliminary investigation is not part of the trial, the dismissal of a
clear right of possession must be established.
case by the fiscal will not constitute double jeopardy and hence there
A foreclosure under a chattel mortgage may properly be commenced is no bar to the filing of another complaint for the same offense
only once there is default on the part of the mortgagor of his
It is a basic tenet of civil procedure that replevin will not lie for
obligation secured by the mortgage.
property in custodia legis. A thing is in custodia legis when it is shown
The replevin in the instant case has been sought to pave the way for that it has been and is subjected to the official custody of a judicial
the foreclosure of the object covered by the chattel mortgage. The executive officer in pursuance... of his execution of a legal writ
conditions essential for that foreclosure would be to show, firstly, the (Bagalihog vs. Fernandez, 198 SCRA 614 [1991]).
existence of the chattel mortgage and, secondly, the default of the
The reason posited for this principle is that if it was otherwise, there
mortgagor. These requirements must be established since the
would be interference with the possession before the function of the
validity of the plaintiffs exercise of the right of foreclosure are
law had been performed as to the process under which the...
inevitably dependent thereon.
property was taken. Thus, a defendant in an execution or attachment

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 35

cannot replevy goods in the possession of an officer under a valid the owner or clearly entitled to the possession of the object sought
process, although after the levy is discharged, an action to recover to be recovered, and that the defendant, who is in actual or legal
possession will lie possession thereof, wrongfully detains the same.
Construing the Pagkalinawan case together with the Vlasons case, In the case at bar, Superlines‘ ownership of the bus being admitted
we rule that where personal property is seized under a search by PNCC, consideration of whether PNCC has been wrongfully
warrant and there is reason to believe that the seizure will not detaining it is in order. The bus was towed by the PNCC on the
anymore be followed by the filing of a criminal action,... and there request of Lopera in violation of constitutional right against
are conflicting claims over the seized property, the proper remedy is unreasonable seizures. The seizure and impounding of Superlines‘s
the filing of an action for replevin, or an interpleader filed by the bus, on Lopera‘s request, were unquestionably violative of “the right
Government in the proper court, not necessarily the same one which to be let alone” by the authorities as guaranteed by the Constitution.
issued the search warrant.
Furthermore, the Supreme Court (SC) finds that it cannot pass upon
However, where there is still a probability that the seizure will be the same without impleading Lopera and any other police officer
followed by the filing of a criminal action, as in the case at bar where responsible for ordering the seizure and distraint of the bus. The
the case for carnapping was "dismissed provisionally, without police authorities, through Lopera, having turned over the bus to
prejudice to its reopening once the... issue of ownership is resolved PNCC for safekeeping, a contract of deposit was perfected between
in favor of complainant" (underscoring supplied), or the criminal them and PNCC. Superlines or the trial court motu proprio may
information has actually been commenced, or filed, and actually implead as defendants the indispensable parties Lopera and any
prosecuted, and there are conflicting claims over the... property other responsible police officers.
seized, the proper remedy is to question the validity of the search
warrant in the same court which issued it and not in any other branch Requisites
of the said court. 1. Applicant is owner of the property claimed or is entitled to
possession.
Thus, the Regional Trial Court of Cebu Branch VIII erred when it
ordered the transfer of possession of the property seized to petitioner SIR: Again right to possess is enough. No need to be the
when the latter filed the action for replevin. It should have dismissed owner of the property.
the case since by virtue of the "provisional dismissal" of the... 2. Property is wrongfully detained by the adverse party
carnapping case there is still a probability that a criminal case would 3. Property is not distrained or taken for tax assessment or fine
be filed, hence a conflict in jurisdiction could still arise. The basic pursuant to law or seized (if seized, that the property is
principle that a judge who presides in one court cannot annul or exempt from seizure)
modify the orders issued by another branch of the same court 4. Principal purpose of the action is to recover possession of
because... they are co-equal and independent bodies acting personal property
coordinately, must always be adhered to.
Procedure (Rule 60, Sec. 2 and 3)
1. An application is filed at the commencement of the action or
at any time before answer of defendant;
SUPERLINES v. PNCC
G.R. No.169596, March 28, 2007 2. Application must include the affidavit mentioned in Section 2;
Superlines Transportation Company, Inc. (Superlines) is engaged in 3. Applicant must file a bond executed to the adverse party in
the business of providing public transportation. One of its buses, double the value of the property as stated in the affidavit;
while traveling north and approaching the Alabang northbound exit SIR: Take note importante kaau na ang affidavit because that
lane, crashed into the radio room of respondent Philippine National will also determine the amount of the bond. That’s why the
Construction Company (PNCC). PNCC‘s Sofronio Salvanera, and affidavit must also include market value of the property.
Pedro Balubal, then head of traffic control and security department Take note na sa tanang na-again nato na provisional
of the South Luzon tollway, investigated the incident. remedies, it is only Rule 60 that actually requires that the
amount of the bond should be doubled and not merely equal
The bus was turned over to the Alabang Traffic Bureau for its own to the amount. So mao lang ni siya ang double. Ngano ni? Will
investigation. Because of lack of adequate space, traffic investigator go to that later.
Pat. Cesar Lopera requested that the bus be towed by the PNCC 4. Approval of the bond by the court.
patrol to its compound. Superlines made several requests for the
5. Court shall then issue an order and the writ of replevin;
release of the bus but Balubal refused. Instead, Balubal demanded
the sum of P40,000.00 or a collateral with the same value for the a. It must describe the personal property alleged to be
reconstruction of the damaged radio room. wrongfully detained
b. Requiring the sheriff to take such property into his
Superlines filed a replevin suit with damages against PNCC and
custody
Balubal before the Regional Trial Court (RTC). The trial court
dismissed the complaint and ordered Superlines to pay PNCC an SIR: A lot of things may happen if there is mistaken description of the
personal property that is alleged to be wrongfully detained because it
amount of P40, 320.00, representing actual damages to the radio
happens a lot in practice.
room. The Court of Appeals (CA) affirmed the decision and concluded
If it is improperly described then you can question kung dili mag fit ang
that the case should have been brought against the police
descriprtion sa personal property or the car in many instances with that
authorities.
in the order of the court. That would be problematic sometimes.
ISSUE: Whether or not a suit for replevin is proper NOTE: The writ of replevin may be served anywhere in the Philippines.
RULING: Contrary to PNCC‘s contention, the petition raises SIR: Why is that? Because we are dealing here with personal property
questions of law foremost of which is whether the owner of a which can easily be transported to different locality. Sakyanan dali ra
personal property may initiate an action for replevin against a kaau i-transport, dali ra kaau taguan. It should be enforceable anywhere
depositary and recover damages for illegal distraint. In a complaint in the Philippines.
for replevin, the claimant must convincingly show that he is either

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 36

Affidavit (Sec. 2) P600,000.00,8 which had a period of one (1) year or until February
24, 2004. Enriquez also executed an indemnity agreement with
Section 2. Affidavit and bond. — The applicant must show by Mercantile Insurance, where she agreed to indemnify the latter "for
his own affidavit or that of some other person who personally all damages, payments, advances, losses, costs, taxes, penalties,
knows the facts: charges, attorney's fees and expenses of whatever kind and nature"9
that it would incur as surety of the replevin bond.10
(a) That the applicant is the owner of the property claimed,
On May 24, 2004, the Regional Trial Court issued an Order11
particularly describing it, or is entitled to the possession thereof;
dismissing the Complaint without prejudice due to Enriquez's
continued failure to present evidence.
(b) That the property is wrongfully detained by the adverse
party, alleging the cause of detention thereof according to the best The RTC found that Enriquez surrendered the van to the Bank of the
of his knowledge, information, and belief ; Philippine Islands, San Fernando Branch but did not comply when
ordered to return it to the sheriff within 24 hours from receipt of the
SIR: What would be the right that would entitle the applicant to Regional Trial Court March 15, 2004 Order.12 She also did not comply
possession? Usually kadtong provision sa chattel mortagage that in with prior court orders to prove payment of her premiums on the
the event na wala siya gi bayaran, he is entitled to take possession replevin bond or to post a new bond. Thus, the Regional Trial Court
of the property immediately. And then what would be the cause of declared Bond No. 138 forfeited. Mercantile Insurance was given 10
detention? Kadtong non-payment. days to produce the van or to show cause why judgment should not
be rendered against it for the amount of the bond.
(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 On July 12, 2004, the RTC held a hearing on the final forfeiture of
of execution or preliminary attachment, or otherwise placed under the bond where it was found that Mercantile Insurance failed to
custodia legis, or if so seized, that it is exempt from such seizure produce the van, and that Bond No. 138 had already expired. In an
or custody; and Order issued on the same day, the RTC directed Mercantile Insurance
to pay Asuten the amount of P600,000.00.
(d) The actual market value of the property. Xxx
Mercantile Insurance wrote to Enriquez requesting the remittance of
P600,000.00 to be paid on the replevin bond.16 Due to Enriquez's
SIR: Again nganong importante ang actual market value of the
failure to remit the amount, Mercantile Insurance paid Asuten
property? Because it will determine the amount of the bond.
P600,000.00 on September 3, 2004, in compliance with the Regional
Trial Court July 12, 2004 Order.17 It was also constrained to file a
Applicant’s Bond (Sec. 2, last par.) collection suit against Enriquez with the Regional Trial Court of
Manila.18
Section 2. Affidavit and bond. —
In her defense, Enriquez claimed that her daughter-in-law, Asela,
xxx filed the Complaint for Replevin in her name and that Asela forged
The applicant must also give a bond, executed to the adverse party her signature in the indemnity agreement. She also argued that she
in double the value of the property as stated in the affidavit could not be held liable since the replevin bond had already
aforementioned, for the return of the property to the adverse party expired.19
if such return be adjudged, and for the payment to the adverse
In its July 23, 2010 Decision, the RTC ruled in favor of Mercantile
party of such sum as he may recover from the applicant in the
Insurance. It found that non-payment of the premiums did not cause
action. (2a)
the replevin bond to expire. Thus, Enriquez was still liable for the
1. Executed to the adverse party reimbursement made by the surety on the bond. The RTC likewise
SIR: the party who is deemed wrongfully possessing the pointed out that Enriquez made "conflicting claims" of having applied
chattel or the personal property for the bond and then later claiming that her daughter-in-law was
the one who applied for it
2. Amount is DOUBLE the value of the property stated in the
affidavit Enriquez appealed with the CA, arguing that the replevin bond had
3. Conditions of the Bond: already expired; therefore, she could not have been liable under the
indemnity agreement. She also averred that even assuming that she
a. the return of property to the adverse party, if such was still liable under the indemnity agreement, she should not pay
return be adjudged, and the full amount considering that the value of the van was only
b. the payment to the adverse party of such sum as P300,000.00.
he may recover from the applicant in the action
On August 13, 2013, the CA rendered a Decision25 affirming the
Regional Trial Court's July 23, 2010 Decision.
ENRIQUEZ v. THE MERCANTILE INSURANCE CO. INC
G.R. No. 210950, August 15, 2018 ISSUE:

This is a Petition for Review on Certiorari1 assailing the August 13, Whether or not petitioner Enriquez should be made liable for the full
2013 Decision2 and January 14, 2014 Resolution3 of the Court of amount of the bond paid by respondent The Mercantile Insurance
Appeals in CA-G.R. CV No. 95955, which affirmed the Regional Trial Co., Inc. as surety, in relation to a previous case for replevin filed by
Court's finding that Milagros P. Enriquez (Enriquez) was liable for the petitioner
full amount of the replevin bond issued by The Mercantile Insurance
RULING:
Company, Inc. (Mercantile Insurance).
Replevin is an action for the recovery of personal property.39 It is
Sometime in 2003, Enriquez filed a Complaint for Replevin against
both a principal remedy and a provisional relief. When utilized as a
Wilfred Asuten (Asuten) before the Regional Trial Court of Angeles
principal remedy, the objective is to recover possession of personal
City, Pampanga. This Complaint, was for the recovery of her Toyota
property that may have been wrongfully detained by another. When
Hi-Ace van valued at P300,000.00.6 Asuten allegedly refused to
sought as a provisional relief, it allows a plaintiff to retain the
return her van, claiming that it was given by Enriquez's son as a
contested property during the pendency of the action.
consequence of a gambling deal.7
As a provisional remedy, a party may apply for an order for the
Enriquez applied for a replevin bond from Mercantile Insurance. On
delivery of the property before the commencement of the action or
February 24, 2003, Mercantile Insurance issued Bond No. 138 for

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 37

at any time before an answer is filed. Rule 60 of the Rules of Court

Any application of the bond in a replevin case, therefore, is premised
outlines the procedure for the application of a writ of replevin.
on the judgment rendered in favor of the defendant. Thus, the Rules
Rule 60, Section 2 requires that the party seeking the issuance of the of Court imply that there must be a prior judgment on the merits
writ must first file the required affidavit and a bond in an amount before there can be any application on the bond.
that is double the value of the property. Once the affidavit is filed
The Rules of Court likewise require that for the defendant to be
and the bond is approved by the court, the court issues an order and
granted the full amount of the bond, he or she must first apply to the
a writ of seizure requiring the sheriff to take the property into his or
court for damages. These damages will be awarded only after a
her custody.
proper hearing.
If there is no further objection to the bond filed within five (5) days
Forfeiture of the replevin bond, therefore, requires first, a judgment
from the taking of the property, the sheriff shall deliver it to the
on the merits in the defendant's favor, and second, an application by
applicant. The contested property remains in the applicant's custody
the defendant for damages. Neither circumstance appears in this
until the court determines, after a trial on the Issues, which among case.
the parties has the right of possession.
When petitioner failed to produce the van, equity demanded that
In Civil Case No. 10846, petitioner Enriquez filed a replevin case
Asuten be awarded only an amount equal to the value of the van.
against Asuten for the recovery of the Toyota Hi-Ace van valued at
The RTC would have erred in ordering the forfeiture of the entire
P300,000.00.49 She applied for a bond in the amount of P600,000.00
bond in Asuten's favor, considering that there was no trial on the
with respondent in Asuten's favor. The RTC approved the bond and
merits or an application by Asuten for damages. This judgment could
ordered the sheriff to recover the van from Asuten and to deliver it
have been reversed had petitioner appealed the Regional Trial
to petitioner.
Court's May 24, 2004 Order in Civil Case No. 10846. Unfortunately,
While the van was in petitioner's custody, the RTC dismissed the case she did not. Respondent was, thus, constrained to follow the RTC’s
without prejudice for failure to prosecute. Thus, it ordered the sheriff directive to pay Asuten the full amount of the bond.
to restore the van to Asuten. When petitioner failed to produce the
Return of Property (Sec. 5)
van, the RTC directed respondent to pay Asuten the amount of the
bond.
Section 5. Return of property. — If the adverse party objects to
There was no trial on the merits. The RTC's dismissal for failure to the sufficiency of the applicant's bond, or of the surety or sureties
prosecute was a dismissal without prejudice to re-filing. In this thereon, he cannot immediately require the return of the
particular instance, any writ of seizure, being merely ancillary to the property, but if he does not so object, he may, at any time before
main action, becomes functus oficio. The parties returned to the the delivery of the property to the applicant, require the return
status quo as if no case for replevin had been filed. Thus, upon the thereof, by filing with the court where the action is pending a bond
dismissal of the case, it was imperative for petitioner to return the executed to the applicant, in double the value of the property as
van to Asuten. stated in the applicant's affidavit for the delivery thereof to the
applicant, if such delivery be adjudged, and for the payment of
Petitioner argues that she should not have been made liable for the such sum, to him as may be recovered against the adverse party,
bond despite her failure to return the van, considering that it was and by serving a copy of such bond on the applicant. (5a)
effective only until February 24, 2004, and that she did not renew or
post another bond.
If the adverse party does not object to the sufficiency of the bond, he
De Guia v. Alto Surety & Insurance, Co. requires that any application may require the return of the property.
on the bond be made after hearing but before the entry of judgment.
Otherwise, the surety can no longer be made liable under the bond.  SIR: Meaning siya katong defendant. Ang iyang sakyanan for
example was taken back or taken by the court. How does he
For this reason, a surety bond remains effective until the action or require the return of the property if wala pa nahuman ang
proceeding is finally decided, resolved, or terminated. This condition kaso?
is deemed incorporated in the contract between the applicant and When?
the surety, regardless of whether they failed to expressly state it.
 At any time before delivery to applicant
Civil Case No. 10846 is a rare instance where the writ of seizure is  SIR: There is a period of time of 5 days where the sheriff
dissolved due to the dismissal without prejudice, but the bond stands holds the property.
because the case has yet to be finally terminated by the Regional How?
Trial Court.
 By filing a redelivery bond
The peculiar circumstances in this case arose when petitioner failed
Redelivery Bond
to return the van to Asuten, despite the dismissal of her action. This
is an instance not covered by the Rules of Court or jurisprudence. In This is executed to the applicant and filed where the action is pending.
its discretion, the RTC proceeded to rule on the forfeiture of the bond. SIR: Mura ni ug counterbond.
As a result, respondent paid Asuten twice the value of the van
withheld by petitioner. Respondent, thus, seeks to recover this Amount:
amount from petitioner, despite the van only being worth half the  Double the value of the property as stated in the affidavit of
amount of the bond. the applicant
 SIR: this is where a lot of confusion happens. In my
Of all the provisional remedies provided in the Rules of experience as a private practitioner daghan na kaau ko
Court, only Rule 60, Section 2 requires that the amount of kliyente. So naa koi kliyente kalit lang manawag na gikuha
the bond be double the value of the property. The other daw ilang sakyanan o ilahang delivery truck. Then syempre
provisional remedies provide that the amount be fixed by nag post na ug bond ang applicant kadtong plaintiff. What’s
court or be merely equal to the value of the property xxx the amount of the bond? Double the value of the property as
However, there is a rationale to the requirement that the stated in the affidavit of the applicant.
bond for a writ of seizure in a replevin be double the value So how does my client get back the property now? By filing
of the property. The bond functions not only to indemnify the the redelivery bond. And there are some courts, believe it or
defendant in case the property is lost, but also to answer for not, so magfile mi ug answer, we will be given a copy of the
any damages that may be awarded by the court if the complaint and file mi ug answer. Then we ask pila ang amount
judgment is rendered in defendant's favor. sa bond para makuha namo ug balik.

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 38

In this situation my client had a delivery truck na ginagamit refers to recovery of personal
niya sa iyang business which was valued at 300K in the property.
affidavit of the applicant. So pila karon anng gi post na
Can be sought only where the May be resorted to even if the
replevin bond sa applicant? 600K. Karon pag pangutana namo
defendant is in actual or personalty is in the custody of a
sa court, ay sir dapat i-doouble nimo na. Ha pila pud? 1.2
constructive possession of the third person.
Million. So ang 300 nahimong 600 for replevin bond and now
personalty involved.
the court is requiring us to post quadruple amount already,
that’s 1.2 Million. Which is wrong. Because nothing in the Extends only to personal Extends to all kinds of property,
Rules would say that it is quadruple already, double the property capable of manual whether real, personal or
double. The rules of court doesn’t say that. So ana akoang delivery. incorporeal.
kliyente na mupalit na lang ko ug tag 300K na truck.
Available to recover personal To recover the possession of
property even if the same is not personal property unjustly
Undertaking: concealed, removed or disposed detained presupposed that the
 The delivery thereof to the applicant, if such delivery be of. same is being concealed,
adjudged, and removed or disposed of to
prevent its being found or taken
SIR: If the court later on determines that the applicant was by the applicant.
really entitled to possession, then ibalik dapat.
Cannot be availed of if the Can still be resorted to even if
 The payment of such sum to him as may be recovered against property is in custodia legis (e.g. the property is in custodial egis.
the adverse party. under attachment, seized under
SIR: so naa nay seguridad ron ang applicant, kadtong creditor a search warrant) except:
for example naa syay seguridad na mabayran siya. a. When the seizure is
illegal (Bagalibog v.
Section 6. Disposition of property by sheriff . — If within five Fernandez (1991);
(5) days after the taking of the property by the sheriff, the adverse and
party does not object to the sufficiency of the bond, or of the surety b. Where there is reason
or sureties thereon; or if the adverse party so objects and the court to believe tha the
affirms its approval of the applicant's bond or approves a new bond, seizure will not
or if the adverse party requires the return of the property but his anymore be followed
bond is objected to and found insufficient and he does not forthwith the filing of the
file an approved bond, the property shall be delivered to the criminal action in court
applicant. If for any reason the property is not delivered to the or there are conflicting
applicant, the sheriff must return it to the adverse party. (6a) claims. (Chua v. CA)
Take Note:
SIR:Take note that the sheriff shall retain the property for 5 days since  Similar to Rule 39 and 57, Rule 60 also covers a situation
the taking of the property. where the property replevied is claimed by a third person.
The adverse party may object to the sufficiency of the bond or surety or  Because there is seizure of property, terceria is an applicable
he may file a redelivery bond as previously discussed. remedy.
If after 5 days, the adverse party failed to object, or his redelivery bond When Property Claimed By Third Person, He must:
is insufficient, the sheriff shall deliver the property to the applicant. 1. Make an affidavit of his title to the property, stating his
SIR: Walay objections or walay redelivery, i-deliver nmo sya sa grounds;
applicant. 2. Serve such affidavit upon the sheriff while the latter has
The defendant is entitled to the return of the property under a writ of possession of the property; and
replevin if he seasonably post a redelivery bond. 3. Serve a copy upon the applicant.
Or if the plaintiff’s bond is found to be insufficient or defective and is not NOTE: The procedure in Rule 60, Sec. 7 is similar that in third-party
replaced with a proper bond and the property is not delivered to the claims in execution (Sec. 16, Rule 39) and in attachment (Sec. 14, Rule
plaintiff for any reason. 57).
How do we distinguish Attachment and Replevin with respect to the
Rule 60 Important Distinctions remedy of tercerida, a third party claim?

What’s the commonality between Replevin and Preliminary Attachment? ATTACHMENT REPLEVIN
Rule 57, Sec. 14 Rule 60, Sec. 7
 They are both Provisional Remedies. In that situation property Affidavit is served upon the Affidavit is served within 5 days
is placed in custodia legis. sheriff while he has possession in which sheriff has possession
 Both may cover personal property. of the property (in connection with Sec. 6)
Let’s go to Rule 61.
REPLEVIN PRELIMINARY Based on my research walay ginapangutana sa replevin. Naay
(Rule 60) ATTACHMENT
ginapangutana sa support pendente lite. But Rule 61 on Support
(Rule 57) Pendent Lite is specifically omitted in your 2020 Bar Examination
Available only where the Available even if the recovery of Syllabus.
principal relief sought in the personal property is only an
action is recovery of personal incidental relief sought in the
property, the other reliefs (e.g. action.
damages) being merely
incidental thereto.
SIR: It can be any main action,
provided that that main action

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 39

5. Declaratory relief and similar remedies (Rule 63)

RULE 61 6. Review of judgements and final orders of the COMELEC and
SUPPORT PENDENTE LITE Commission on Audit (Rule 64)

Take note walay apil ang CSC, if you recall the Constitutional
January 9, 2021 Part 2 by Chen Lee Apura prohibition: Unless otherwise provided by law or the Rules of Court.
So the SC deemed it proper that if it is the CSC, the remedy will
Rule 61 on Support Pendente Lite is specifically omitted in the 2020 Bar not be Rule 64, rather it is Rule 43. Civil Procedure nato na siya.
Examination Syllabys for Remedial Law.
7. Certiorari, prohibition and mandamus (Rule 65)
Atty. JZE skipped the discussion on Rule 61. He will provide notes on it, 8. Quo warranto (Rule 66)
instead. 9. Expropriation (Rule 67)
10. Foreclosure of real estate mortgage (Rule 68)

RULES 62 – 64 Naay mga life-changing decisions ang SC on that. Can you recall
SPECIAL CIVIL ACTIONS the case of Russel vs. Vestil? The SC enumerated there the actions
that are incapable of pecuniary estimation. Specific perfomance,
rescission, foreclosure of REM. And yet in a later case, the SC said
There are a lot of rules na grabe ang development sa jurisprudence. that while foreclosure of REM is an action incapable of pecuniary
There are a lot of new cases like Rule 65. That is a rich source of Bar estimation, the jurisdiction is not automatically with the RTC.
Exam questions. Rule 66 – Quo Warranto against former Chief Justice Ngano kaya? Diba life-changing ni na decision sa SC which you
Sereno; Quo Warranto against ABS-CBN. Mga prominent kayo unya should know.
aktibista baya inyong Bar Chairman.
11. Partition (Rule 69)
I’ll give advance copies of Rule 65 and Rule 66 of my book. I want you 12. Forcible entry and unlawful detainer (Rule 70)
to study that immediately when we are done with Rule 64. Para pag 13. Contempt (Rule 71)
discuss nako of 65 and 66, mubo nalang. I don’t have to go over
everything. Why do I specifically denominate them as SCA under the Rules of Court?
Because there are SCA that are not found in RoC. Case in point is the
DEFINITION AND NATURE OF SPECIAL CIVIL ACTIONS Rules of Procedure for Environmental Cases.

 While the Rules of Court defines an ordinary action as one by which OTHER SPECIAL CIVIL ACTIONS
a party sues another for the enforcement or protection of a right,
or the prevention or redress of a wrong, it does not give a specific Under the Rules of Procedure for Environmental Cases:
definition for a special civil action. 1. Writ of Kalikasan
2. Writ of Continuing Mandamus
Discussion: Unsa lang ang giingon sa SC? All other actions are
special civil actions. I-discuss pud nato na siya hopefully kung naa pa ta time later in the
semester. Otherwise, I’ll just give you the final chapter of my book.
 Both ordinary and special civil actions are governed by the rules for
ordinary civil actions, subject to the specific rules prescribed for a Among all of them, unsa ang pinakaimportante? For me, Rule 63 is
special civil action. The fact that an action is subject to special rules important, Rule 65, 66, 68, and 70. These are SCAs where jurisprudence
other than those applicable to ordinary civil action is what makes a is unusually developed. Lihokan ang jurisprudence, many changes.
civil action special.
Take note that SCAs are not automatically lodged with the RTC because
Discussion: In the case of absence or silence of provisions on SCA there are SCAs within the jurisdiction of inferior courts.
(special civil action), you apply the rules on ordinary civil actions.
Under the principle of generalia specialibus non derogant.
SPECIAL CIVIL ACTIONS WITHIN THE JURISDICTION OF
 To force a definition, a special civil action is a civil action which is INFERIOR COURTS
governed specifically by the rules prescribed for the applicable type
of special civil action and generally by the rules for ordinary civil 1. Interpleader, provided that the amount is within the jurisdiction
actions. By nature, each special civil action is designed, by force of of such inferior court;
the Rules, to seek a specific form of civil relief that may be obtained
by bringing an ordinary civil action. Pwede man gud na ang subject of interpleader is below 20,000 or
50,000 in the case of real property. Pwede pud siya below 300,000
Discussion: An example is the SCA of Interpleader. What is or 400,000 in the case of personal property. Naa pud interpleader
peculiar about Interpleader? That the plaintiff or interpleader has that is incapable of pecuniary estimation. So what would that be?
no cause of action. He does not claim any interest over whatever That would depend on the nature of action or subject matter of the
property or money that he has in his possession but he is not sure interpleader action.
kung kay kinsa niya ibayad or ideliver. So he files a SCA to compel
those parties with conflicting claims to litigate among themselves 2. Ejectment suits; and
para dili siya mamali og bayad, dili siya mamali og deliver.
That is a specific form of civil relief that cannot be done by virtue They should be lodged before the MTC. Forcible entry and unlawful
of an ordinary civil action. That is why you file an action for detainer provided na kadtong 1-year period, counted from either
interpleader which is a special civil action. the date of possession or intrusion on the property or the last
demand to vacate. Dapat 1 year, ejectment suit gihapon siya.
Take note pud in that situation the definition of a cause of action.
The delict or violation which the defendant committed against the Why is an ejectment suit, forcible entry and unlawful detainer
plaintiff, dili na siya applicable in SCA. We will go to that in greater considered SCA? When in fact an accion publiciana which fulfils
detail later on. the same objective, which is to recover possession of real property
as well as accion reindivicatoria considered ordinary actions.
SPECIAL CIVIL ACTIONS UNDER THE RULES OF COURT Why is that? Because ejectment suits (forcible entry, unlawful
4. Interpleader (Rule 62)

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 40

detainer), they are subject to special rules, summary rules lang As to how An ordinary civil action is Special civil actions may
baya ni. initiated initiated by the filing of a be initiated by the filing of
complaint. a complaint or a petition.
3. Contempt

SPECIAL CIVIL ACTIONS INITIATED BY COMPLAINT As to the Under Rule 7, Section 4, Pleadings in many special
1. Interpleader requirement except when otherwise civil actions must be
2. Expropriation of verification specifically required by verified, such as a
3. Foreclosure of real estate mortgage law or rule, pleadings in an complaint for
4. Partition ordinary civil action need expropriation, the Rule
5. Forcible entry and unlawful detainer not be under oath or 64 and 65 petitions, for
verified. quo warranto, and
pleadings in accion
SPECIAL CIVIL ACTIONS INITIATED BY PETITION interdictal and petitions
1. Declaratory relief for indirect contempt.
2. Review of jdugments and fnal orders or resolutions of the As to Under Rule 14, Section 1, The rule on the issuance
COMELEC/COA whether as amended, unless the of summons does not
3. Certiorari summons are complaint is on its face apply to certain special
4. Prohibition served dismissable under Section civil actions.
5. Mandamus 1, Rule 9, the court shall
6. Quo Warranto direct the clerk of court to Discussion: Instead of
7. Contempt issue the corresponding summons being served, it
summons to the is usually an order to
DISTINCTIONS defendant. comment lang. (e.g.
ORDINARY CIVIL SPECIAL CIVIL certiorari, prohibition,
ACTION ACTION There should always be mandamus)
As to what An ordinary civil action is A special civil action is service of summons on
rules govern governed by the rules for governed by the rules for the defendant for the
it ordinary civil actions and ordinary civil actions, court to acquire
never the specific rules subject to the specific jurisdiction over his
prescribed for a special rules prescribed for a person unless he
civil action. special civil action. voluntarily appears and
As to which An ordinary civil action Specific types of special submits himself to the
court has may be filed before the civil actions must be filed jurisdiction of the court.
jurisdiction MTC or the RTC before either the MTC or
depending on the the RTC. Discussion: What about
jurisdictional amount or actions in rem, quasi in
nature of the action rem? Where the
involved. jurisdiction over the
As to the Every ordinary civil action The requirement of a person of the defendant
applicability must be based on a cause cause of action finds no can be substitituted by
of the of action. A cause of application to certain jurisdiction over the res?
elements of a action is the act or special civil actions where Diba dili naman kelangan
cause of omission by which a party the violation of the of service of summons?
action violates a right of another. plaintiff’s rights is not a No. Because while
prerequisite for the jurisdiction over the
commencement of such person of the defendant
actions. need not be obtained over
these types of actions,
Discussion: (e.g. service of summons upon
Interpleader – no him is still required to
violation of right of satisfy the requirements
plaintiff. He does not of due process.
claim any interest over As to Under Rule 9, Section 3, While default may be
the property which is the whether the as amended, if the declared if a party fails to
subject matter of the defendant defending party fails to plead (i.e. claimant in
action; can be answer within the time interpleader under Rule
declared in allowed therefor, the court 63, Sec. 5), failure to
Action for declaratory default shall, upon motion of the answer does not lead to a
relief- there must be no claiming party with notice default declaration under
breach of the contract, to the defending party, Rule 70. In fact, motion
document, or law in and proof of such failure, to declare defendant in
question. The moment declare the defending default is a prohibited
you breach it, you can no party in default. motion under the same
longer file) rule.
As to venue The venue depends on The venue does not
whether the action is real necessarily depend on Example: You are one of
or a personal action the nature of the action the defendants in an
as real of personal. interpleader and you did
not file an answer to the
complaint, failure to
answer does not lead to a
default declaration.

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As to remedy The remedy of a party There are special civil of action as he may have against an opposing party, subject to the
of an appeal aggrieved by a judgment actions where multiple following conditions:
or final order in an appeals are allowed, such
ordinary civil action is as expropriation, (a) The party joining the causes of action shall comply with the
appeal. There can only be foreclosure of mortgage rules on joinder of parties;
one appeal. and partition. (b) The joinder shall not include special civil actions or actions
governed by special rules;
Discussion: Pildi ka and Discussion: Let’s take (c) Where the causes of action are between the same parties but
let’s say for example, the the case of expropriation. pertain to different venues or jurisdictions, the joinder may be
case was heard by the Diba there are 2 stages. allowed in the Regional Trial Court provided one of the causes
court a quo in the exercise 1. Determining the of action falls within the jurisdiction of said court and the venue
of its original jurisdiction, propriety of the lies therein; and
what is your mode of taking; (d) Where the claims in all the causes action are principally for
appeal? Notice of appeal, 2. Determination of recovery of money, the aggregate amount claimed shall be the
ordinary appeal. How the just test of jurisdiction. (5a)
many times can you compensation
appeal? Only once. Discussion: Remember that our rule on joinder is permissive, not
Let’s say napildi ka sa 1st mandatory. When you join causes of action in 1 complaint, you have to
What if mapildi ka atong stage, can you appeal? follow the conditions. Daghan ni, upat kabuok. But what I am talking
giappeal nimo na case, dili Yes. But the case will about is letter b: The joinder shall not include special civil actions or
ba ka pwede mag-appeal? continue. That is why actions governed by special rules. And believe it or not, daghan kaayo
Pwede gud. Pero dili na there is a record on cases ani. Simple kaayo na rule. Pag SCA gani, dili na nimo pwede
denominated as an appeal in addition to a isubject sa joinder. Pero why is it na daghan kaayo og mga kaso niabot
appeal, it is called a notice of appeal being sa SC on this matter. Such as:
petition for review required. Para pwedeng
because the decision was magpadayon ang kaso in TERAÑA v. DE SAGUN
rendered by the court in the court a quo while the G.R. No. 152131, April 29, 2009
the exercise of its appellate court deals with
appellate jurisdiction. the appeal on the 1st Facts: The respondent Antonio Simuangco owned a house and lot at
stage of action for 138 J.P. Laurel St., Nasugbu, Batangas, which he leased to the
expropriation. petitioner. Sometime in 1996, the petitioner demolished the leased
As to An ordinary civil action A special civil action for house and erected a new one in its place. The respondent alleged that
availability of cannot be converted into a declaratory relief may be this was done without his consent. The Contract of Lease defining the
special civil special civil action. converted into an respective rights and obligations of the parties contained the following
action as ordinary civil action under provisions, which the petitioner allegedly violated:
corrective A party aggrieved by a Rule 63, Section 6.
relief and judgment in an ordinary b) To keep the leased property in such repair and condition as it was in
conversion civil action, when there is A party aggrieved by a the commencement of the Lease with the exception of portions or parts
no appeal or other plain, judgment in a special civil which may be impaired due to reasonable wear and tear;
speedy, or adequate action may file a special d) Not to make any alterations in the Leased property without the
remedy in the ordinary civil action for certiorari. knowledge and consent of the Lessor;
course of law, may file a
special civil action for Discussion: Pwede nimo On February 3, 1997, the respondent sent a letter demanding the
certiorari or prohibition, iaddress ang decision in a petitioner to vacate the leased property. Despite this letter of demand
for that matter. SCA with another SCA. petitioner still refused to vacate the said property.
But you cannot address
Discussion: But there judgment in an OCA with The respondent thus filed a complaint for unlawful detainer against the
are instances where a SCA another OCA. petitioner on the ground of the petitioner's violation of the terms of the
may be converted into an Contract of Lease. The respondent prayed for the petitioner's ejectment
OCA. Example is Rule 63. of the leased property, and for the award of P70,000.00, representing
You filed an action for the cost of the materials from the demolished house, attorney's fees,
declaratory relief which and costs.
presupposes that there is
no breach or violation of Issue: Whether petitioner is entitled to damages. No.
the document, contract, or
law in question. The Held: Damages recoverable in an unlawful detainer action are limited
moment there is a to rentals or reasonable compensation for the use of the property.
violation, dili na pwede
ang declaratory relief. So This Court has no jurisdiction to award the reimbursement prayed for by
the court must order the both parties. Both parties seek damages other than rentals or
conversion of that petition reasonable compensation for the use of the property, which are the only
for declaratory relief into forms of damages that may be recovered in an unlawful detainer case.
an ordinary civil action for Rule 70, Section 17 of the Rules of Court authorizes the trial court to
breach of contract. order the award of an amount representing arrears of rent or reasonable
compensation for the use and occupation of the premises if it finds that
the allegations of the complaint are true.
ONE FINAL POINT OF DISTINCTION
Rationale for limiting the kind of damages recoverable in an unlawful
detainer case was explained in Araos v. Court of Appeals, wherein the
Rules of Court Court held that:

Rule 2, Section 5. Joinder of causes of action. — A party may in In forcible entry or unlawful detainer cases, the only damage that can
one pleading assert, in the alternative or otherwise, as many causes be recovered is the fair rental value or the reasonable compensation for
the use and occupation of the leased property. The reason for this is

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that in such cases, the only issue raised in ejectment cases is that of of habeas corpus, to bring the body of the person whose liberty is
rightful possession; hence, the damages which could be recovered are involved into court, and if it is necessary, to provide the record upon
those which the plaintiff could have sustained as a mere possessor, or which the detention is based, that may be accomplished by using a writ
those caused by the loss of the use and occupation of the property, and of certiorari as an ancillary proceeding, i.e., it is subordinate to or in aid
not the damages which he may have suffered but which have no direct of the primary action for the purpose of impeaching the record. When a
relation to his loss of material possession. writ of certiorari is issued as the foundation of jurisdiction to bring it and
direct upon the validity of a judicial determination by any body or officer,
Discussion: In forcible entry or unlawful detainer cases, the only jurisdictional questions only are reached, and such questions pertaining
damage that can be recovered is the fair rental value or the reasonable to the detention made by the officer or body particularly complained of.
compensation for the use and occupation of the leased property. You
cannot claim any other form of damages, even if it is against the same Discussion: Ang worse pa gyud diri is that a petition for writ of habeas
defendant. Why is this relevant? Because if you file an action for corpus was joined with a SCA for certiorari. You cannot join these SCAs,
damages against the defendant, not based on the deprivation of the joinder is improper. Unsa gani ang remedy kung misjoined ang
possession of the plaintiff, you have to file an ordinary civil action there cause of action? To dismiss the case? No. Misjoinder is not jurisdictional.
and you cannot lump that in forcible entry and unlawful detainer case You apply Rule 31 – Severance of causes of action. So dili pwede petition
which is a SCA. for writ of habeas corpus and certiorari, these are remedies governed
by different sets of rules.
CABALLES v. CA
G.R. No. 163108, February 23, 2005 SALVADOR v. PATRICIA, INC.
G.R. No. 195834, November 9, 2016
Facts: On November 19, 2001, petitioner Glenn Chua Caballes was
charged with rape of a minor in the RTC of Malabon City. The case was Facts: This is an action for injunction and quieting of title to determine
raffled to Branch 169, presided by Judge Emmanuel D. Laurea. Because who owns the property occupied by the plaintiffs and intervenor, Ciriano
the petitioner was charged with a non-bailable offense, he was detained. C. Mijares. Additionally, to prevent the defendant Patricia Inc. from
The petitioner was arraigned on February 7, 2002 and pleaded not guilty evicting the plaintiffs from their respective improvements along Juan
to the offense charged. On April 28, 2003, the petitioner filed a petition Luna Street, plaintiffs applied for a preliminary injunction in their
for bail. On June 16, 2003, the trial court issued its Order denying the Complaint pending the quieting of title on the merits.
petition for bail, on its finding that the evidence of guilt against the
petitioner was strong.
A Complaint-in-Intervention was filed by the City of Manila as owner of
the land occupied by the plaintiffs. A preliminary injunction was granted
On July 4, 2003, the petitioner filed a Motion for Reconsideration of the
and served on all the defendants. Based on the allegations of the parties
court’s Order dated June 16, 2003 denying his petition for bail. However,
the petitioner preempted the resolution of his motion for reconsideration involved, the main issue to be resolved is whether the improvements of
and filed a Motion to Dismiss the case on July 11, 2003 on the ground the plaintiffs stand on land that belongs to Patricia Inc., or the City of
that his right to speedy trial had been violated. Manila. Who owns the same? Is it covered by a Certificate of Title? Since
the Transfer Certificates of Title of both Patricia Inc. and the City of
On the latter date, the trial court issued an Omnibus Order denying the Manila are admitted as genuine, the question now is on the boundaries
petitioner’s motion to dismiss. The trial court reasoned that there was no based on the description in the respective titles.
violation of the petitioner’s right to speedy trial, considering that the
apparent delays could not be attributed to the fault of the prosecution RTC rendered judgment in favor of the petitioners and against Patricia,
alone. The trial court noted that the petitioner also sought Inc., permanently enjoining the latter from doing any act that would
Postponements of the trials. evict the former from their respective premises, and from collecting any
rentals from them.
Anent the motion for reconsideration of the court’s Order dated June 16,
2003 which denied the petition for bail, the trial court considered the CA reversed the RTC's judgment and dismissed the complaint.
same as having been abandoned by the petitioner upon the filing of his
motion to dismiss the case without waiting for the resolution of his Issue: Whether a joinder of an action for injunction and quieting of title
motion for reconsideration on his petition for bail. is proper. No.

The petitioner then filed with the Court of Appeals (CA) a "Petition Held: The joinder of the action for injunction and the action to quiet
for Habeas Corpus and/or Certiorari and Prohibition. title is disallowed by the Rules of Court, the first being an ordinary suit
and the latter a special civil action under Rule 63. Under Section 5(b),
Issue: Whether a petition for habeas corpus may be properly joined Rule 2, “The joinder shall not include special civil actions or actions
with a petition for certiorari. No. governed by special rules.”

Held: A petition for a writ of habeas corpus cannot be joined with the Consequently, the RTC should have severed the causes of action, either
special civil action for certiorari because the two remedies are governed upon motion or motu proprio, and tried them separately, assuming it
by a different set of rules. Rule 2, Section 5(b) of the Rules of Court had jurisdiction over both. Such severance was pursuant to Section 6,
mandates that the joinder of causes of action shall not include special Rule 2 of the Rules of Court.
actions or actions governed by special rules, thus proscribing the joinder
of a special proceeding with a special civil action. Furthermore, the petitioners did not have a cause of action for
injunction. Accordingly, the petitioners must prove the existence of a
We also agree with the ruling of the CA that a petition for a writ right to be protected. The records show, however, that they did not have
of habeas corpus is a remedy different from the special civil action of any right to be protected because they had established only the
certiorari under Rule 65 of the Rules of Court, as amended. The writ existence of the boundary dispute between Patricia, Inc. and the City of
of habeas corpus is a collateral attack on the processes, orders, or Manila. Any violation of the boundary by Patricia, Inc., if any, would give
judgment of the trial court, while certiorari is a direct attack of said rise to the right of action in favor of the City of Manila only. The dispute
processes, orders, or judgment on the ground of lack of jurisdiction or did not concern the petitioners at all. Moreover, the boundary dispute
should not be litigated in an action for the quieting of title due to the
grave abuse of discretion amounting to excess or lack of jurisdiction. A
limited scope of the action.
writ of certiorari reaches only jurisdictional errors. It has no other use,
except to bring before the court a record material to be considered in
exercising jurisdiction. A writ of certiorari reaches the record. On the Discussion: Please take note that when you talk about an action for
other hand, a writ of habeas corpus reaches the body but not the injunction, it is talking about main action for injunction. You cannot join
record; it also reaches jurisdictional matters but does not reach the that with action to quiet title. So your main action cannot be an action
record. However, when jurisdiction is obtained by the issuance of a writ for injunction and to quiet title. You cannot do that. But what you can

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do is to file an action to quiet title with prayer for issuance of the

provisional remedy of preliminary injunction.

BELO MEDICAL GROUP INC. v. SANTOS & BELO

G.R. No. 185894 , August 30, 2017

Facts: Belo Medical Group filed a Complaint for Interpleader to compel

Belo and Santos to interplead and litigate their conflicting claims and
declaratory relief, praying that Santos be perpetually barred from
inspecting its books.

Issue: Whether a complaint for interpleader may be joined with an

action for declaratory relief. No.

Held: Interpleader cannot be joined with declaratory relief. They are

both special civil actions.

At the outset, this Court notes that two cases were filed by Belo Medical
Group: the Complaint for interpleader and the Supplemental Complaint
for Declaratory Relief. Under Rule 2, Section 5 of the Rules of Court, a
joinder of cause of action is allowed, provided that it follows the
conditions enumerated below:

Section 5. Joinder of Causes of Action. A party may in one pleading

assert, in the alternative or otherwise, as many causes of action as he
may have against an opposing party, subject to the following conditions:

xxx

(b) The joinder shall not include special civil actions or actions
governed by special rules;

Assuming this case continues on as an interpleader, it cannot be joined

with the Supplemental Complaint for declaratory relief as both are
special civil actions. However, as the case was classified and will
continue as an intra-corporate dispute, the simultaneous complaint for
declaratory relief becomes superfluous.

VENUE OF SPECIAL CIVIL ACTIONS

 The venue of special civil actions do not necessarily depend on the

residences of the parties or the location of the property subject of
the action.

 Example: the venue of a petition for quo warranto is where the

Supreme Court or the Court of Appeals sits if the petition is
commenced in any of these courts and without taking into
consideration where the parties reside.

 It is only when the petition for quo warranto is lodged with the RTC
that residence is considered in determining the venue of the action.
Even then, the petition for quo warranto filed in the RTC considers
only the residence of the respondent, not that of the petitioner.
However, under Rule 66, Section 7, when it is the Solicitor General
that commences the action, the petition for quo warranto, if broght
before the RTC, the venue is in the proper RTC in City of Manila.
As previously noted, the Solicitor General may bring the petition in
the Supreme Court or in the Court of Appeals. In such cases, the
venue of a petition for quo warranto is where the Supreme Court
or the Court of Appeals sits.

Discussion: Where do they sit? SC – Metro Manila; Court of

Appeals – Manila. Pero naa pud CA sa Cebu, naa pud sa Cagayan
de Oro City.

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have a lien on goods deposited or on the proceeds thereof in his hands,

for all lawful charges for storage and preservation of the goods; also
RULE 62 for all lawful claims for money advanced, interest, insurance,
INTERPLEADER transportation, labor, weighing, coopering and other charges and
expenses in relation to such goods, also for all reasonable charges and
expenses for notice, and advertisements of sale, and for sale of the
Definition goods where default had been made in satisfying the
Interpleader is a remedy whereby a person who has property, whether warehouseman's lien.
personal or real, in his possession, or an obligation to render wholly or
partially, without claiming any right in both, or claims an interest which In other words, the warehouseman has an interest in the subject matter
in whole or in part is not disputed by the conflicting claimants, comes to (the goods deposited to the extent of his lien as allowed in Section 27.
court and asks that the persons who claim the said personal property or
This interest, however, does not preclude him from filing an interpleader
who consider themselves entitled to demand compliance with the
obligation, be required to litigate among themselves, in order to complaint inasmuch as his interest is not disputed by the claimants.
determine finally who is entitled to one or the other thing (Ocampo vs.
Tirona, G.R. No. 147812, April 6, 2005). When must an action for interpleader be filed?
Within a reasonable time after a dispute has arisen without waiting to
Interpleader is a special civil action filed by a person against whom two be sued by claimants and before such is barred by laches (Wack Wack
conflicting claims are made upon the same subject matter and over
Gold & Country Club vs. Lee Won, 1976).
which he claims no interest, to compel the claimants to interplead and
to litigate their conflicting claims among themselves (Sec. 1).
Discussion: So wala siyay definite na period of time, like 1 year or 2
By nature, it is an equitable proceedings brought by a third person to years. It all depend on reasonableness and timing. Dapat dili paka
have a court determine the ownership of rival claimants to the same barred by laches, dapat wala paka gifile-an og kaso. Ngano diay kung
money or property that is held by that third person. gifile-an naka og kaso by one of these claimants? You can now implead
an additional claimant. Pwede man ka mag file og 3 rd party complaint to
Take note that the subject matter here does not have to be property or
bring a person to the action. You can do that. Or if the plaintiff sues the
money, it can be the performance of an obligation.
warehouseman for example and another claimant over the property, the
The third person who causes the defendants to interplead or brings the warehouseman can simply file a crossclaim against his fellow defendant.
suit is called a “plaintiff-interpleader”, a “stakeholder” or, simply, an Naa nakay laing remedy if you have already been sued.
“interpleader”.
Which court has jurisdiction over an interpleader?
PURPOSE
It depends. An interpleader action may be commenced in the RTC or in
[1] The remedy is afforded not to protect a person against a double
the MTC depending on the subject matter, the amount of the claim or
liability but to protect him against a double vexation in respect of one
the value of the property involved.
liability (Ocampo vs. Tirona, G.R. No. 147812, April 6, 2005).
Nemo debet bis vexari. No man ought to be vexed twice for the same
In a personal action
cause.
If the subject matter is personal property which is valued not more than
P300,000.00 and the case is filed outside Metro Manila, the MTC has
Discussion: Ning deliver siya kay A but B is claiming, ako man ang tag-
jurisdiction over the action. If the personal property is valued at more
iya ana dapat, nganong kay A man nimo gideliver. So pwede siya file-
than P300,000.00 and the case is filed outside Metro Manila, it is the
an og kaso usab. In order to prevent that when there are conflicting
RTC that has jurisdiction. If the case is filed in Metro Manila, the
claimants, ang interpleader nalang mismo ang mag file og kaso so that
Metropolitan Trial Court has jurisdiction if the personal property is valued
it will be the claimants who will be fighting against one another.
at not more than P400,000.00. If the personal property is valued at more
than P400,000.00 and the case is filed in Metro Manila, it is the RTC that
[2] Interpleader allows the debtor to avoid this double vexation.
has jurisdiction.
Anticipating that he will be beset by conflicting claims, he may thus
compel the conflicting claimants to fight each other and to the victor
Discussion: I am more concerned about the fact that interpleader can
goes the spoils. In this sense, interpleader can be described as an
actually be filed in cases where the subject matter is neither personal
“anticipatory” or “precautionary” suit to prevent double vexation on the
property or money or real property but in an action incapable of
part of the plaintiff-interpleader or stakeholder.
pecuniary estimation like the performance of an obligation. It is easy to
determine for example how an interpleader works where the subject
REQUISITES FOR INTERPLEADER
matter is personal property or money.
a. There must be TWO OR MORE CLAIMANTS with adverse or
conflicting interests to a property in the custody or possession of
Example: Maja and Pia both claim P100,000.00 from JZE. Where does
the plaintiff;
JZE files his interpleader action? Before the MTC because the subject of
b. The plaintiff has NO CLAIM upon the subject matter of the adverse
the interpleader did not exceed P300,000.00 outside Metro Manila.
claims, or if he has an interest at all, such interest is NOT
DISPUTED by the claimants; and
But what about interpleader action incapable of pecuniary obligation?
c. The SUBJECT MATTER of the adverse claims must be ONE AND
THE SAME.
In a real action
If the subject matter is real property which has an assessed value of not
A CLAIM NOT DISPUTED
more than P20,000.00 and the case is filed outside Metro Manila, the
MTC has jurisdiction over the action. If the real property is valued at
The Warehouse Receipts Law more than P20,000.00 and the case is filed outside Metro Manila, it is
the RTC that has jurisdiction. If the case is filed in Metro Manila, the
Sec. 27. What claims are included in the warehouseman's lien.
— Subject to the provisions of section thirty, a warehouseman shall Metropolitan Trial Court has jurisdiction if the real property has an

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 45

assessed value of not more than P50,000.00. Conversely, if the real subject matter, litis pendentia, res judicata and prescription remain as
property is valued at more than P50,000.00 and the case is filed in Metro viable grounds for a motion to dismiss.
Manila, it is the RTC that has jurisdiction.
BAR QUESTION 1997: What courts have jurisdiction over the
following cases filed in Metro Manila:
Incapable of pecuniary estimation
If the subject of the interpleader suit is one that is incapable of pecuniary
d) An action for interpleader to determine who between the defendants
estimation (i.e. the performance of an obligation), it is the RTC that has is entitled to receive the amount of P190,000.00 from the plaintiff?
jurisdiction under BP 120, Section 19(1), as amended.
Suggested Answer: This involves a sum of money, hence jurisdiction
Venue will depend on the amount. Since it is below P400,000, the Metropolitan
[1] Because interpleader can be prosecuted as a real action or as a Trail Courts of Metro Manila have jurisdiction.
personal action, venue will be determined accordingly.
BAR QUESTION 2005: Raphael, a warehouseman, filed a complaint
against V Corporation, X Corporation and Y Corporation to compel them
[2] Interpleader is a real action if the subject matter involves title to or
to interplead. He alleged therein that the three corporations claimed title
possession of real property, or an interest therein. As such, it shall be
and right of possession over the foods deposited in his warehouse and
commenced and tried in the proper court which has jurisdiction over the that he was uncertain which of them was entitled to the goods. After
area wherein the real property involved, or a portion thereof, is situated. due proceedings, judgment was rendered by the court declaring that X
Corporation was entitled to the goods. The decision became final and
January 9, 2021 Part 3 by Ergel Rosal executory.

Should there be service of summons in interpleader? Rapahael filed a complaint against X Corporation for the payment of
Summons and copies of the complaint and order shall be served upon P100,000.00 for storage charges and other advances for the goods. X
conflicting claimants. [Sec. 3, Rule 62] Conflicting claimants should file Corporation filed a motion to dismiss the complaint on the ground of res
an Answer within 15 days. judicata. X Corporation alleged that Raphael should have incorporated
in his complaint for interpleader his claim for storage fees and advances
Discussion: The weird situation here is it’s the plaintiff who files an and that for his failure he was barred from interposing his claim. Raphael
action for interpleader but he has no claim whatsoever over the subject replied that he could not have claimed storage fees and other advances
matter of the action except probably his expenses. However, note that in his complaint for interpleader because he was not yet certain as to
there is still service of summons. who was liable therefor. Resolve the motion with reasons. (4%)

We are to assume that the Rules on Summons, specifically in the Suggested Answer: The motion to dismiss should be granted. Raphael
acquisition of jurisdiction over the person of the defendant should also should have incorporated in his complaint for interpleader his claim for
apply. If you are a conflicting claimant and you were not served storage fees and advances, the amounts od which were obviously
summons, the action is a nullity insofar you are concerned. You are not determinable at the time of the filing of the complaint. They are part of
bound by any judgment on that interpleader action. That is the Raphael’s cause of action which may not be split. Hence, when the
necessary implication. warehouseman asks the court to ascertain who among the defendants
are entitled to the goods, he also has the right to ask who should pay
But my problem here would be the fact that the Answer should be filed for the storage fees and other related expenses.
within 15 days. Wala ta problema before when the period to file an
Answer in an all actions in general was 15 days also. Pero may The filing of the interpleader is available as a ground for dismissal of the
amendment ta karon, 30 days na ang period to file an action. Ot’s no second case [Sec. 4, Rule 2]. It is akin to a compulsory counterclaim
longer just an answer or any other pleading for that matter stating which, if not set up, shall be barred. [Sec. 2, Rule 9; Arreza v. Diaz, G.R.
ultimate facts, omitting mere statements of evidentiary facts. Karon No. 133113, August 30, 2001].
kailangan naa na imong evidence. In other words, imong answer should
already incorporate your judicial affidavit. Discussion: Although an action for interpleader does not have to follow
the rules on cause of action, based on the case of Arreza v. Diaz, the
Is that requirement on judicial affidavits also applicable on interpleader
rule on the splitting of cause of actions would still be applicable.
actions? Yes. It is applicable on all actions if your evidence is testimonial.
And yet, when you talk about Rule 62, it’s still just 15 days. So dili in
harmony and amendments with the rest of the Rules. I guess they
should amend that as well.

What is the effect of failure of a claimant to file an Answer?

Upon motion, the court may declare such claimant in default and render
a judgment barring him from any claim in respect to the subject matter.
[Sec. 5, Rule 62]

Grounds for filing a Motion to Dismiss

[1] Improriety of the interpleader action [Sec. 4, Rule 62];
 The requisites for an interpleader does not appear to be
present in the case filed

[2] Formerly on grounds specified under Rule 16 of the Rules of Court.

Discussion: But remember that Rule 16 as a cohesive rule has been

obliterated by the amended rules. Certain portions of Rule 16 have been
transferred to Rules 15, 9. How do we now apply the grounds for filing
a motion to dismiss?

It is posited that Rule 62, Section 4 is deemed amended insofar as the

mention of other appropriate grounds specified in Rule 16 is concerned.
In addition to the deletion of Rule 16, only lack of jurisdiction over the

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 46

first, the subject matter of the controversy must be a deed, will,

RULE 63 contract or other written instrument, statute, executive order or
DECLARATORY RELIEF regulation, or ordinance;

second, the terms of said documents and the validity thereof are
Section 1. Who may file petition. — Any person interested doubtful and require judicial construction;
under a deed, will, contract or other written instrument, or whose
rights are affected by a statute, executive order or regulation, third, there must have been no breach of the documents in question;
ordinance, or any other governmental regulation may, before
breach or violation thereof bring an action in the appropriate fourth, there must be an actual justiciable controversy or the “ripening
Regional Trial Court to determine any question of construction or seeds” of one between persons whose interests are adverse;
valifity arising, and for a declaration of his rights or duties,
thereunder. fifth, the issue must be ripe for judicial determination; and

An action for the reformation of an instrument, to quiet title to sixth, adequate relief is not available through other means or other
real property or remove clouds therefor, or to consolidate forms of action or proceeding.
ownership under Article 1607 of the Civil Code, may be brought
under this Rule. No Breach of the Documents in Question
Where the law or contract has already been contravened prior to the
As a reminder, the 2nd paragraph tells you that although it is not an filing of an action for declaratory relief, the courts can no longer assume
action for declaratory relief per se, they are considered special civil jurisdiction over the action. In other words, a court has no more
actions, not ordinary civil actions. But take note that while you may file jurisdiction over an action for declaratory relief if its subject has already
for reformation, etc. under Rule 63, it does not mean you follow all the been infringed or transgressed before the institution of the action.
rules and principles under Rule 63 in determining how to prosecute [Maglana, et al. vs. Tappa, et al., G.R. No. 181303, September 17, 2009]
those under 2nd paragraph.
Exceptions
Purpose Declaratory relief may still be availed even if there is breach or violation
The purpose of the action for declaratory relief is to secure an if:
authoritative statement of the rights and obligations of the parties under
a statute, deed, contract, etc. for their guidance in its enforcement or [1] It concerns the future application of the deed, will, contract, or other
compliance and not to settle issues arising from its alleged breach. It written instrument, statute or ordinance (see Gomez vs. Palomar, G.R.
may be entertained only before the breach or violation of the statute, No. L-23645, October 29, 2968); or
deed, contract, etc. to which it refers.
[2] It is not objected to by the adverse party and the court has rendered
The traditional elements of cause of action do not apply. Since in a cause judgment after full blown trial. A contrary position, if sustained, would
of action there should be violation of rights. Here, there is no violation. in effect require a separate suit thereby allowing or encouraging
multiplicity of suits. [Matalin Coconut Co., Inc. vs. The Municipal Council
Who may file the action of Malabang, G.R. No. L-28138, August 13, 1986]
(a) A person interested under a deed, will, contract, or other
written instrument; When Court May Refuse to Make Judicial Declaration
(b) A person whose rights are affected by a statute, executive (a) Where a decision would not terminate the uncertainty or
order or regulation, ordinace or any other governmental controversy which gave rise to the action, or
regulation [Rule 63, Sec. 1] (b) Where the declaration is not necessary and proper under the
circumstances. [Rule 63, Sec. 5]
Duscussion: If you want to determine the applicability of an oridnance
because it affects your business, you can avail of this. So, you can file Conversion into Ordinary Action
an action for declaratory relief for the court to determine whether a law Section 6. Conversion into ordinary action. — If before the
is applicable to you or not. final termination of the case, a breach or violation of an
instrument or a statue, executive order or regulation, ordinance,
Jurisdiction or any other governmental regulation should take place, the
Regional Trial Court (for declaratory relief per se or those described action may thereupon be converted into an ordinary action, and
under the 1 st paragraph of Sec. 1) the parties shall be allowed to file such pleadings as may be
necessary or proper.
For those actions covered under the 2nd paragraph, jurisdiction is not
automatic with the RTC. This is a feature that is exclusive to declaratory relief. In a way, Rule 70
is also the same. For example, instead of filing a summary action for
Parties ejectment or unlawful detainer, you may be constrained to file an
(a) All persons who have or claim any interest which would be ordinary for recovery of possession depending on whether or not the 1-
affected by the declaration [Rule 63, Sec. 2] year period already lapsed.
(b) If the action involves the validity of a statute/executive
order/regulation/other governmental regulation, the Solicitor Effect of Breach
General shall be notified [Rule 63, Sec. 3] The action may thereupon be converted into an ordinary action, and the
(c) If action involves the validity of a local government ordinance, parties shall be allowed to file such pleadings as may be necessary or
the prosecutor/attorney of the LGU shall be notified [Rule 63, proper.
Sec. 4]
 Example in Davao City, implead the Office of the Why?
City Attorney. Where the law or contract has already been contravened prior to the
filing of an action for declaratory relief, the court can no longer assume
BARRIO BALAGBAG OF PASAY CITY v. OFFICE OF THE jurisdiction over the action. Under such circumstances, inasmuch as a
PRESIDENT cause of action has already accrued in favor of one or the other party,
G.R. No. 230204, August 19, 2019 there is nothing more for the court to explain or clarify short of a
judgment or final order.
The following are the requisites for an action for declaratory relief:
MARTELINO v. NHMFC & HDMF

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 47

G.R. No. 160208, June 30, 2008 SPOUSES SABITSANA v. MUERTEGUI

G.R. No. 181359, August 5, 2013
Petitioner alleged that, even with the subdivision developer’s failure to
develop the subdivision, respondents ignored their right to suspend On the question of jurisdiction, it is clear under the Rules that an action
amortization payments, charged interests and penalties on their for quieting of title may be instituted in the RTCs, regardless of the
outstanding loans, threatened to foreclose their mortgages and initiated assessed value of the real property in dispute. Under Rule 63 of the
foreclosure proceedings. Rules of Court, an action to quiet title to real property or to remove
clouds thereform may be brought In the appropriate RTC. In order to
They sought a declaration from the RTC prevent a cloud from being cast upon his application for a title,
(1) that their right as house and lot buyers to suspend payment for the respondent filed Civil Case No. B-1097 to obtain a declaration of his
developer’s failure to fully develop the subdivision also applied to rights. In this sense, the action is one for declaratory relief, which
respondents who released their loans directly to the developer; properly falls within the jurisdiction of the RTC pursuant to Rule 63 of
(2) that during the suspension of payment, respondents should not the Rules.
assess them accrued interests and penalties.
Discussion: It seems that the SC is saying in this case of Sps. Sabitsana
Petitioners further prayed that they be allowed to pay their housing that the classification of actions brought under Rule 63 does not matter,
loans without interest and penalties. In the meantime, petitioners whether or not it is a real action. It was as if the SC was saying that an
stopped payment. action to quiet title, being one brought under Rule 63, should always be
file before the RTC regardless of the nature of the action, regardless of
Held: Unfortunately, their actual suspension of payments defeated the the assessed value of the real property involved.
purpose of the action to secure an authoritative declaration of their
supposed right to suspend payment. Thus, the RTC could no longer But to my mind, murag mali man. Why? Because if you really look at
assume jurisdiction over the action for declaratory relief because its it, the first paragraph of Sec. 1 only applies to petitions for declaratory
subject initially unspecified, now identified as P.D. No. 957, was relief per se and not necessarily to similar remedies under the second
breached before filing the action. paragraph.

Proceedings Considered as Similar Remedies Later on, the Supreme Court said:
[1] Reformation of an instrument [Arts. 1359-1369, Civil Code]
[2] Consolidation of ownership [Art. 1607, Civil Code; Rule 63, Sec. 1(2)] MONTERO v. MONTERO
[3] Quieting of title to real property [Srts. 476-481, Civil Code] G.R. No. 217755, September 18, 2019

Jurisdiction over Rule 63 Actions Actions for reconveyance of or for cancellation of title to or to quiet title
A petition for declaratory relief [per se], by direct provision of Rule 63, over real property are actions that fall under the classification of cases
Section 1, must be brought in the appropriate Regional Trial Court. It is that involve title to, or possession of, real property, or any interest
also considered an action that is incapable of pecuniary estimation [BP therein.
129, Section 9(1)]. The Supreme Court does not have original
jurisdiction over a petition for declaratory relief even if only questions of Discussion: So it is now clear from the most recent iteration of
law are involved. [Villanueva v. Judicial and Bar Council, G.R. No. jurisprudence, in determining what is the nature of an action to quiet
211833, April 7, 2015] title, it is a real action. As a real action, the safer way would be to follow
Malana v. Tappa, saying that it is not automatic with RTC. You have to
How about the actions under the second paragraph (e.g. reformation)? look at the nature of the action.

With respect to remedies similar to declaratory relief, jurisdiction is not SALVADOR, et al. v. PATRICIA, INC.
necessarily vested with the Regional Trial Court and would depend upon G.R. No. 195834, November 9, 2016
the nature of the action.
An action to quiet title is to be brought as a special civil action under
[1] An action for the reformation of an instrument can be treated Rule 63 of the Rules of Court. Although Section 1 od Rule 63 specifies
as either an action incapable of pecuniary estimation [BP 129, Section the forum to be “the appropriate Regional Trial Court.” The specification
9(1)] or as a case that is not within the exclusive jurisdiction of any does not override the statutory provision on jurisdiction.
court, tribunal, person or body exercising judicial or quasi-judicial
functions [BP 129, Section 9(6)]. Either way, an action for reformation
must be brought before the Regional Trial Court.

[2] An action to quie title to real property or remove clouds

thereform, on the other hand, is a real action or one which involves
the title to, or possession of, real property, or any interest therein. It
may thus be filed before the RTC if the assessed value exceeds P20,000
(outside Metro Manila) or P50,000 (in Metro Manila). If the assessed
value does not exceed such amounts, the MTC or MeTC, respectively,
has jurisdiction.

MALANA, et al. v. TAPPA, et al.

G.R. No. 181303, September 17, 2009

It is important to note that Section 1, Rule 63 of the Rules of Court does

not categorically require that an action to quiet title be filed before the
RTC. It repeatedly uses the word “may” – that an action for quieting of
title “may be brought under [the] Rule” on petitions for declaratory
relief, and a person desiring to file a petition foi declaratory relief “ may
xxx bring an action In the appropriate Regional Trail Court.” The use of
the word “may” in a statute denotes that the provision is merely
permissive and indicates a mere possibility, an opportunity or an option.

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 48

This follows the express provision of the Constitution, and is

different from Rule 65 which provides for 60 days.
RULE 64
REVIEW OF JUDGMENTS AND FINAL [2] Interruption of the 30-day period
Filing of MFR or MNT, if allowed under the procedural rules of the
ORDERS OR RESOLUTION OF THE Commission, shall interrupt the 30-day period. If denied, the aggrieved
COMELEC AND COA party may file petition within the remaining period but it shall not be less
than 5 days in any event from notice of denia. [Rule 64, Sec. 3]

COMELEC and COA CSC Why is there a difference in the period? 60 days if it is ordinary certiorari,
Rule 43 30 days if it is certiorari under Rule 64. It is because the law deems that
COMELEC and COA cases deal with matters of exreme urgency. It must
Section 1. Scope. – This Rule be resolved immediately. Hence, the shorter period.
shall apply to appeals from
judgments or final orders of the NEYPES v. COURT OF APPEALS
Court of Tax Appeals and from G.R. No. 141524, September 14, 2005
awards, judgments, final orders EN BANC
Rule 64
or resolutions of or authorized
by any quasi-judicial agenct in By virtue of the power of the Supreme Court to amend, repeal and
the exercise of its quasi-judicial created new procedural rules in all courts, the Court is allowing a fresh
functions. Among these period of 15 days within which to file a notice of appeal in the RTC,
agencies are the Civil Service counted from receipt of the order dismissing or denying a motion for
Commission xxx and voluntary new trial or motion for reconsideration.
arbitratos authorized by law.
Henceforth, this “fresh period rule” shall also apply to Rule 40 governing
Judgments/orders of the Civil Service Commision are now reviewable by appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule
the Court of Appeals under Rule 43, eliminating recourse to the Supreme 42 on petitions for review from the Regional Trial Courts to the Court of
Court. [RA 7903; SC Revised Administrative Circular No. 1-95] Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of
Appeals and Rule 45 governing appeals by certiorari to the Supreme
Take note that, in effect, this is a Rule 65 petiton. Court. The new rule aims to regiment ot make the appeal period
uniform, to be counted from receipt of the order deniying the motion for
Basis new trial, motion for reconsideration (whether full orpartial) or any final
Sec. 7, Art. IX-A of the Constitution reads, “unless otherwise provided order or resolution.
by the Constitution or by law, any decision, order or ruling of each
commission may be brought to the Supreme Court on certiorari by the To put things into context: When you file a Rule 64 petition, if the
aggrieved party within 30 days from receipt of a copy thereof.” COMELEC or COA allows a MNT or MR, that will have the effect of
interrupting the 30 day period. If denied, the aggrieved party may file a
The provision was interpreted by the Supreme Court to refer to certiorari petition within the remaining period, not less than 5 days.
under Rule 65 and not appeal by certiorari under Rule 45 [Aratuc v.
COMELEC, 88 SCRA 251; Dario c. Mison, 176 SCRA 84]. To implement In Neypes, it also talks about that. The moment your MNT or MR is
the above constitutional provision, the Supreme Court promulgated Rule denied, how much time do you have left to appeal? The court is allowing
64. a fresh period of 15 days within which to file a Notice of Appeal in the
RTC counted from the receipt of order dismissing or denying the MNT
Scope or MR.
(a) Applicable only to judgments and final orders of the COMELEC
and COA. [Rule 64, Sec. 1] Will this rule apply to Rule 64? No.
(b) An aggrieved party may bring the questioned judgment, etc.
directly to the SC on certiorari under Rule 65. [Rule 64, Sec. Neypes is NOT APPLICABLE to Rule 64
2] Its application to Rule 65 cannot be automatically extended because rule
64, Section 3 is a special rule. In the case of COMELEC decisions, the
When you file a Rule 64 petition, it’s a petition for certiorari under Rule Court has chosen not to extend it in view of the Constitutional policy of
64 in relation to Rule 65. Or, Rule 65 petition filed in relation to Rule 64. prompt resolution of election cases. [Pates v. COMELEC (2009)]
Application of Rule 65 under Rule 64 Injunctive Effect
[1] The aggrieved party may bring a judgment or final order or General Rule: Such petition for certitiorari shall not stay the execution
resolution of the COMELEC and COA to the SC on certiorari under Rule of the judgment, etc. sought to be reviewed
65 and not on appeal by certiorai under Rule 45. [Rule 64, Sec. 2]
 If you talk about Rule 65, the main distinction would be the Exception: Unless otherwise directed by the Supreme Court [Rule 64,
subject matter – an alleged grave abuse of discretion Sec. 8]
amounting to lack or excess of jurisdiction. What you are
bringing actually is a jurisdictional question. While appeal by Procedure
certiorari under Rule 45 concerns a pure question of law. File a petition for review within 30 days from notice of judgment, final
order or resolution sought to be reviewed [Rule 64, Sec. 3].
[2] Take note that the petition should be filed EXCLUSIVELY with the
SC. Form: Verified and Accompanied by Annexes
[Rule 64, Sec. 5]
[3] Certiorari is the mode of review. Rule 65 is followed unless it conflicts (a) A clearly legible duplicate original or certified true copy of the
with particular rules under Rule 64. subject judgment, etc.;
(b) Certified true copies of such material protions of the record
Special Rules under Rule 64 referred to in the petition;
[1] Reglementary Period (c) Other documents relevant and pertinent to the petition;
The period should be filed within 30 days from notice of (d) Proof of service of a copy of the petition on the Commission
judgment or final order or resolution sought to be reviewed. and the adverse party;

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Provisional Remedies and SCA Review with Atty. Jess Zachael Espejo 49

(e) Proof of the timely payment of the docket and other lawful The reglementary periods under Rule 42 and Rule 64 are different. In
fees; the former, the aggrieved party is allowed 15 days to file the petition for
(f) Soft copies of the same and their annexes (the latter in PDF review from receipt of the assaile decision or final order, or from receipt
format) either by email to the Court’s e-mail address or by of the denial of a MNT or MR. In the latter, the petition is filed within 30
compact disc (SC). [Efficient Use of Paper Rule] days from notice of the judgment or final order or resolution sought to
be reviewed. The filing of a MNT or MR, of allowed under the procedural
Order to Comment rules of the Commission concerned, interrups the period; hence, should
[Rule 64, Sec. 6] the motion be denied, the aggrieved party may file the petition within
If the SC finds the petition sufficient inform and substance, it shall order the remaining period, which shall not be less than five days in any event,
the respondents to file their comments on the petition within 10 days reckoned from the notice of denial.
from notice thereof.
The petitioner filed its MR on January 14, 2013, which was 31 days after
Grounds for Dismissal receiving the assailed decision of the COA on December 14, 2012.
(a) Petition not sufficient in form and substance Pursuant to Section 3 of Rule 64, it had only five days from receipt of
(b) Petition was filed manifestly for delay the denial of its MR to file the petition. Considering that it received the
(c) The questions raised are too unsubstantial to warrant further notice of the denial on July 14, 2014, it had only until July 19, 2014 to
proceedings file the petition. However, it filed the petition on August 13, 2014, which
was 25 days too late.
Decision
[Rule 64, Sec. 9] We ruled in Pates v. Commission on Elections that the belated filing
Case is deemed submitted for decision upon: of the petition for certiorari under Rule 64 on the belief that the fresh
(a) Filing of the comments on the petition, and such other period rule should apply was fatal to the recourse. As such, the petitioner
pleadings or papers as may be required or allowed. herein should suffer the same fate for having wrongly assumed that the
(b) Expiration of the period to file the pleadings. fresh period rule under Neypes applied. Rules of procedure may be
relaxed only to relieve a litigant of an injustice that is not commensurate
Exception: SC sets the case for oral argument or requires parties to with the degree of his thoughtlessness in not complying with the
submit memoranda. prescribed procedure. Absent this reason for liberality, the petition
cannot be allowed to prosper.
FORTUNE LIFE INSURANCE v. COA
G.R. No. 213525, January 27, 2015 DISTINCTIONS
Rule 64 Certiorari Rule 65 Certiorari
Respondent Provincial Government of Antique and the petitioner Rule 64 is directed only to the Rule 65 is directed against any
executed a MOA concerning the life insurance coverage of qualified judgments, final orders or tribunal, board or officers
barangay officials, the former obligating P4,393,593.60 for the premium resolutions of the COMELEC and exercising judicial or quasi-
payment, and subsequently submitting the corresponding disbursement COA. judicial functions.
voucher to COA-Antique for pre-audit. The latter office disallowed the The petition is filed within 30 The petition is filed with 60 days
payment for lack of legal basis under RA No. 7160 (Local Government days from notice of the from notice of the judgment,
Code). Respondent LGU appealed but its appeal was denied. judgment, etc. etc.
Consequently, the petitioner filed its petition for money claim in the COA. The filing of MR or MNT The period within which to file
on November 15, 2012, the COA issued its decision denying the petition. interrupts the period for the the petition, if the MR or MNT is
The petitioner received a copy of the COA decision on December 14, filing of the petition for denied, is 60 days from notice
2012, and filed its motion for reconsideration on January 14, 2013. certiorari. If the motion is of the denial of the motion.
However, the COA denied the motion, the denial being received by the denied, the aggrieved party may
petitioner on July 14, 2014. [Respondent filed a petition under Rule 64 file the petition within the
on August 13, 2014.] remaining period, but which
shall not be less than 5 days
Fresh Period Rule under Neypes dod not apply to the petition from the notice of denial.
for certiorari under Rule 64 of the Rules of Court The petition in Rule 64 is always The petition in Rule 65 may be
brought before the Supreme brought before the Supreme
The petitioner posits that the fresh period rule applies because its Rule Court. Court, the Court of Appeals, the
64 petition is akin to a petition for review brought under Rule 42 of the Sandiganbayan or the Regional
Rules of Court; hence, conformably with the fresh period rule, the period Trial Court.
to file a Rule 64 petition should also be reckoned from the receipt of the
order denying the motion for reconsideration or motion for new trial.

The petitioner’s position cannot be sustained.

There is no parity between the patition for review under Rule 42 and the
petition for certiorari under Rule 64.

As to the nature of the procedures, Rule 42 governs an appeal from the

judgment or final order rendred by the Regional Trial Court in the
exercise of its appellate jurisdiction. Such appeal is on a question of fact,
or of law, or of mixed question of facts and law, and is given due course
only upon prima facie showing that the Regional Trial Court committed
an error of fact or law warranting the reversal or mmodification of the
challenged judgment or final order. In contrast, the petition for certiorari
under Rule 64 is similar to the petition for certiorari under Rule 65, and
assails a judgment or final order of the COMELEC, or the COA. The
petition is not designed to correct only errors of jurisdiction, not errors
of judgment. Questions of fact cannot be raised except to determine
whether the COMELEC or the COA were guilty of grave abuse of
discretion amounting to lack or excess of jurisdiction.

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