CHAPTER 12: PROVISIONAL REMEDIES

I. NATURE OF PROVISIONAL REMEDIES

The term "provisional" means temporary, preliminary or tentative.

Provisional remedies - temporary, auxiliary, and ancillary remedies available
to a litigant for the protection and preservation of his rights while the main
action is pending. They are writs and processes which are not main actions
and they presuppose the existence of a principal action.

II. PURPOSE OF PROVISIONAL REMEDIES (BAR 1996)

Provisional remedies are resorted to by litigants for any of the following

reasons:

a) To preserve or protect their rights or interests while the main action is

pending;
b) To secure the judgment;
c) To preserve the status quo; or
d) To preserve the subject matter of the action.

III. COURT WHICH GRANTS PROVISIONAL REMEDIES

The court which grants or issues a provisional remedy is the court which has
jurisdiction over the main action. Even an inferior court may grant a
provisional remedy in an action pending with it and within its jurisdiction.

For instance, a Municipal Trial Court has the jurisdiction to issue a writ of
preliminary mandatory injunction, a provi-sional remedy available as
ancillary to the main action of forcible entry and unlawful detainer (Sec. 15,
Rule 70, Rules of Court). Where the main action is for support, the
provisional remedy of support pendente lite may not be granted by a
Municipal Trial Court because the main action which is incapable of pecuniary
estimation is within the jurisdiction of the Regional Trial Court or the Family
Court.

IV. KINDS OF PROVISIONAL REMEDIES (BAR 1999)

The provisional remedies specified under the rules are:

Preliminary attachment (Rule 57);
Preliminary injunction (Rule 58);
Receivership (Rule 59);
Replevin (Rule 60); and
Support pendente lite (Rule 61).

The enumeration is not exclusive. For example, in the special proceeding of

custody of minors, the court may grant a parent visitation rights and or

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temporary custody of the child (Sec. 6, Rule 99, Rules of Court), both of
which partake of the nature of provisional remedies even if not among those
specifically enumerated as provisional remedies.

V. DEPOSIT AS A PROVISIONAL REMEDY

In one case, an action to annul a contract of sale of a land, the buyer moved
for the court to order the seller to deposit in court the amount initially given
to the seller as consideration for the land to prevent the dissipation of the
amount paid. The seller opposed the motion arguing that a deposit is not
among the provisional remedies enumerated in the Rules of Court. The Court
nevertheless granted the motion. The Court considered the case as one that
clearly showed a hiatus in the Rules of Court and in the law because deposit
is not so provided under the Rules as a provisional remedy. If the hiatus is
left alone, it will result in unjust enrichment in favor of the seller at the
expense of the buyer. It may also imperil the obligation of restitution, a
precondition to the annulment of a contract. This is a case of insufficiency of
the law and Article 9 of the Civil Code mandates a ruling despite the "silence,
obscurity or insufficiency of the laws." This calls for the application of equity,
which fills the open spaces of the law. In ordering the deposit, the court
exercised its "equity jurisdiction."

I. PRELIMINARY ATTACHMENT (RULE 57)

I. NATURE OF PRELIMINARY ATTACHMENT

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Preliminary attachment - a provisional remedy issued upon order of the court
where an action is pending to be levied upon the property of the defendant
so the property may be held by the sheriff as security for the satisfaction of
whatever judgment may be rendered in the case.

There is no separate action called preliminary attachment. It is not a distinct

proceeding and is availed of within a principal action. For instance, if the
plaintiff files an action to collect a sum of money, the action may be coupled
with a prayer for the issuance of a writ of preliminary attachment directed
against the property of the defendant in order to prevent him from further
disposing of his property during the pendency of the litigation.

Attachment places the property under the custody of the court (custodia
legis). The property is held by the court for the satisfaction of whatever
award which may be obtained by the plaintiff in his favor.

Attachment has been referred to as an action in rem or an action quasi in

rem. When availed of and is granted in an action purely in personam, it
converts the action to one that is quasi in rem. It will be recalled that in an
action in personam, jurisdiction over the defendant is mandatory. However,
with attachment, the action becomes one in quasi in rem. This
transformation of the nature of the action dispenses with the need for
acquiring jurisdiction over the defendant. Since attachment is directed
against the property of the defendant, the court may validly proceed with the
action as long as jurisdiction over the property is acquired. In an action in
rem or quasi in rem, jurisdiction over the res is sufficient. Jurisdiction over
the person of the defendant is not required.

Attachment is a purely statutory remedy. It cannot exist without a statute

granting it. Its legal basis for application is not only a direct provision in the
Rules of Court (Rule 57) but also the Civil Code of the Philippines (Art. 1177,
Civil Code) which authorizes a creditor to pursue the property of the debtor.

It is not only the plaintiff who may apply for a writ of preliminary attachment.
A defendant who asserts a counterclaim, a cross-claim or a third-party claim
may also avail of the remedy.

The attachment is preliminary only when resorted to before the finality of the
judgment to secure the property of the adverse party and to prevent its
dissipation. Once the judgment has become final and executory, the
attachment becomes a final one and is issued in order to satisfy the
judgment.

II. PURPOSE OF PRELIMINARY ATTACHMENT

Preliminary attachment is designed to:

 seize the property of the debtor before final judgment and put the same
in custodia legis even while the action is pending for the satisfaction of a
later judgment; or

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 to enable the court to acquire jurisdiction over the res or the property
subject of the action in cases where service in person or any other service
to acquire jurisdiction over the defendant cannot be effected.
KINDS OR ATTACHMENTM; DISTINCTIONS (BAR 1878; 1989)

1. There are three types of attachments, to wit:

preliminary attachment,

garnishment, and

levy on execution.

Preliminary attachment - one issued at the commencement of the action

or at anytime before entry of judgment as security for the satisfaction of any
judgment that may be recovered in the cases provided for by the rules. Here
the court takes custody of the property of the party against whom the
attachment is directed.

Garnishment - a kind of attachment in which the plaintiff seeks to subject

either the property of the defendant in the hands of a third person called the
garnishee, to his claim or the money which said third person owes the
defendant. By means of garnishment, the plaintiff reaches credits belonging
to the defendant and owing to him from a third person who is a stranger to
the litigation.

Garnishment does not involve the actual seizure of the property which
remains in the hands of the garnishee. Garnishment simply impounds the
property in the garnishee's possession and maintains the status quo until the
main action is finally decided. Thus, if pursuant to a court order, the
defendant's credit with a stockbroker is garnished, the sheriff cannot order
that said balance be surrendered to the plaintiff or the sheriff upon the
garnishment. It is only after the judgment against the defendant has become
final and executory that the delivery is to be made (Bar 1980; Sec. 15[c],
Rule 57).

Jurisdiction over the garnishee is acquired by the mere service upon him of
the copy of the writ of garnishment with a notice that his debt to the
defendant or other personal property of the defendant under his control or
possession is attached pursuant to the writ (Sec. 7[b], Rule 57, Rules of
Court). Service of summons is not required to bind the garnishee. By virtue
of the writ, the garnishee will be required to hold the property or the funds in
his hands during the pendency of the litigation and at the appropriate time,
to deliver the same not to the defendant but to the new creditor who is the
plaintiff in the litigation. Garnishment therefore, results into a forced
novation through a change in the creditor.

Garnishment proceedings are usually directed to personal property, tangible

or intangible and whether capable of manual delivery or not.

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Levy on execution - the writ issued by the court after judgment by which
the property of the judgment obligor is taken into the custody of the court
before the sale of the property on execution for the satisfaction of a final
judgment. It is the preliminary step to the sale on execution of the property
of the judgment debtor.

IV. CASES IN WHICH PRELIMINARY ATTACHMENT IS PROPER

One cannot secure preliminary attachment in every situation. The rules

governing preliminary attachment enumerate specific situations in which the
remedy can be availed of (Sec. 1, Rule 57, Rules of Court). The enumeration
should be deemed exclusive.

Example: A borrowed money from B. A failed to pay despite demand. B sued

A in the proper court. Is preliminary attachment available to B if he can show
that A is already insolvent at the time the action is filed? Answer: Preliminary
attachment is not available. A mere action to collect a sum of money is not
one of those cases enumerated in Sec. 1, Rule 57 of the Rules of Court which
would justify the issuance of a writ of preliminary attachment. Common
reason suggests that the mere inability of the debtor to fulfill his obligation to
pay a debt is not synonymous with a fraudulent intent not to honor an
obligation.

In the immediately preceding set of facts, may B successfully ask for

preliminary attachment if it can be shown that A is about to depart from the
Philippines? Answer: B cannot successfully ask for preliminary attachment by
merely proving that the debtor is about to depart from the Philippines. There
must also be a showing that the departure is with intent to defraud B.

The provisions of the Rules of Court are clear: One of the cases in which
preliminary attachment is proper is "In an action for the recovery of a
specified amount of money or damages, other than moral and exemplary, on
a cause of action arising from law, contract, quasi-contract, delict or quasi-
delict against a party who is about to depart from the Philippines with intent
to defraud his creditors (Sec. 1[a], Rule 57, Rules of Court; italics supplied).

Under the above provision, the cause of action is for money or damages, the
amount of which must be "specified." The cause of action need not arise from
a contract alone as it was in the old rule. It may arise also from any of the
sources of obligations under Art. 1157 of the Civil Code like law, contract,
quasicontract, delict or quasi-delict. However, where the action is for the
recovery of moral damages or exemplary damages alone, preliminary
attachment will not lie.

A writ of preliminary attachment cannot be issued for moral and exemplary

damages and other unliquidated and contingent claims.

Thus, a mere allegation that the defendant is a foreigner without alleging

that he intends to depart from the Philippines to defraud his creditor is not
sufficient for preliminary attachment to be successfully availed of.

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Preliminary attachment is also available in an action for money or property
embezzled, fraudulently misapplied or converted to his own use by the
defendant. Here, the defendant may be a public officer, a corporate officer,
an attorney, a factor, a broker, an agent, a clerk or any other person acting
in a fiduciary capacity. He may also be a person who acted in a manner as to
willfully violate his duty not to embezzle, fraudulently misapply, or not to
convert money or property for his own use. (Sec. 1[b], Rule 57, Rules of
Court).

Thus, in an action against a public officer who misappropriated funds

entrusted to him by virtue of his office, the issuance of a writ of preliminary
attachment is proper. Preliminary attachment is also proper in an action
against an officer of a private corporation who converted the corporate funds
to his personal use.

Preliminary attachment is also available in an action to recover property

unjustly or fraudulently taken, detained or converted by the defendant. Note
however, that preliminary attachment under this provision will be granted if
it is alleged and shown that the property involved or any part thereof has
been concealed, removed, or disposed of to prevent its being found or taken
by the applicant or an authorized person (Sec. 1[c], Rule 57, Rules of Court).

In this cause of action, the property unjustly or fraudulently taken, detained

and converted by the defendant may also be a real property, not just
personal property.

Preliminary attachment is also available in an action against a defendant

guilty of fraud in either contracting or performing an obligation (Sec. 1, Sec.
1[d], Rule 57, Rules of Court).

There are two kinds of frauds contemplated here. First, dolo causante (causal
fraud) and second, dolo incidente (incidental fraud).

Dolo causante - fraud used to induce another to enter into a contract (Art.
1338, Civil Code of the Philippines). It is the fraud employed in contracting
an obligation and renders a contract annullable or voidable (Art.
1330;Art.1390, Civil Code of the Philippines).

Dolo incidente - the fraud employed by a party in the fulfillment of his

obligation or after the obligation has been contracted. This kind of fraud only
obliges the person employing it to pay damages (Art. 1344, Civil Code of the
Philippines).

Under the former rule, the fraud that justified a writ of preliminary
attachment was only the fraud committed in contracting an obligation (dolo
causante). It did not include the fraud committed subsequent to contracting
the obligation (dolo incidente).

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 Example: Mr. X induced his rich friend, Mr. Y to grant him a loan using
a spurious land title. Without the security, Mr. Y would not have
extended the loan to him. If Mr. Y later learns of the fraud and files an
action to recover the amount loaned to Mr. X, Mr. Y may apply for a
writ of preliminary attachment. The fraud committed by Mr. X is a
fraud in contracting the obligation or dolo causante.

Preliminary attachment is also a remedy available in an action against a

person who has removed or disposed of his property with intent to defraud
his creditors (Sec. 1[e], Rule 57, Rules of Court).

The mere removal or disposal of the property is not sufficient to support a

prayer for the issuance of a writ of preliminary attachment. The act must be
shown to have been done with the intent to defraud the plaintiff/creditor.

In an action against a defendant who is a non-resident and who is at the

same time not found in the Philippines, attachment may be availed of in
order to reach his property in the Philippines and to dispense with the need
for acquiring jurisdiction over his person (Sec. 1[f], Rule 57, Rules of Court).

Here, the attachment is intended to enable the court to acquire jurisdiction

over the res and thus, justifying summons by publication. When the property
of a non-resident located in the Philippines is attached, the court acquires
jurisdiction over the res and in that event, the jurisdiction over the person of
said defendant is not essential.

Illustration (Bar 1981)

Y" is a stockholder of a local corporation. "Y" owns 20% of the shares of the
said corporation. "Y» defaults on a manufacturing contract with "Z." "Z" sues
for specific performance and damages and, on the ground that "Y" is fleeing
from the country to avoid his creditors, seeks to attach 20% of a parcel of
land that belongs to the corporation.

Can "Z" secure such an attachment granting that the averments of his
petition are sufficient? Reasons.

Suggested answer:

The attachment cannot be obtained. The property sought to be attached is

actually the property of the corporation while the defendant is "Y," not the
corporation. The corporation has a personality separate and distinct from
that of its stockholders.

Illustration (Bar 1982)

Edward filed a complaint for accounting against LIZA for accounting of the
money received by her as administratrix of Edward's hacienda. In his
complaint, Edward prayed for preliminary attachment, alleging that Liza was
about to depart from the Philippines. Attached to the complaint was an

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affidavit executed by Marilyn to the effect that Liza told her that she, Liza,
was planning to leave for Singapore in a few days. If you were the judge,
would you grant the prayer for preliminary attachment? Why?

Suggested answer.

I would not grant the prayer for preliminary attachment. The application
should show that the defendant's departure from the Philippines must be
with the corresponding intent to defraud the creditors (Sec. 1, Rule 57, Rules
of Court). This fact was not alleged in the application for the issuance of the
writ of preliminary attachment.

Illustration (Bar 1983)

Daniel Chan owns a house and lot at Forbes Park, Makati, where his wife and
children reside. He is the Chief Executive Officer of various family
corporations where he owns 20% of the respective capital stocks. These
family corporations owe several banks the total sum of P2.5 billion, with
Chan as a solidary co-debtor.

After Chan has carefully manipulated the finances of the family corporations
and diverted their funds to his account in a Swiss bank, he flees from. the
Philippines and now resides at 127 Rue Duphine, Zurich, Switzerland. The
banks concerned now retains the services of Atty. Ramon Castillo for the
purpose of filing a suit in the Philippines against Daniel Chan on his
obligations as a solidary codebtor on the loans of the family corporations.
One of the procedural problems facing Atty. Castillo is the method of
effecting a valid service of summons upon Daniel Chan, now residing in
Switzerland, to enable the Philippine courts to acquire jurisdiction over his
person.

Describe the remedies and procedure, and the supporting grounds thereof
that Atty. Castillo should follow as would enable him to effect a valid service
of summons on Daniel Chan.

Suggested answer.

Atty. Castillo should file an action against Daniel Chan for collection of a sum
of money with an application for a writ of preliminary attachment. Since the
action is one in personam, jurisdiction over the person of the defendant is
required but this jurisdiction cannot be obtained against one who is not a
resident of the Philippines in an action in personam. The writ of attachment is
required in order to convert the action in personam into an action quasi in
rem. In this kind of action jurisdiction over the person of the defendant is not
required. What is required is jurisdiction over the res which could be obtained
by the attachment. Summons by publication would then be served or by the
other modes of extraterritorial service (Sec. 1[f, Rule 57, Rules of Court).

Illustration (Bar 1990)

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On June 18, 1989, Mario Reyes executed a promissory note for P50,000
payable to Norma Alajar not later than June 18, 1990. Mario Reyes defaulted
in the payment of the promissory note and a collection suit was filed against
him before the Regional Trial Court of Quezon City.

After the complaint has been filed, Norma Alajar discovered that Mario Reyes'
petition for the issuance of an immigrant visa was approved by the United
States Embassy, and that Mario Reyes has been disposing of his properties.

What remedy may be availed of by Norma Alajar to protect her interest?

Explain your answer.

Suggested answer.

Norma Alajar should file an application for the issuance of a writ of

preliminary attachment. The acts of Mario Reyes are sufficient to vest upon
Norma Alajar a ground for the remedy. The disposal of his properties clearly
indicates an intent to defraud his creditor (Sec. 1, Rule 57, Rules of Court).

V. WHEN TO APPLY FOR PRELIMINARY ATTACHMENT

It may be applied for (a) at the commencement of the action, or (b) at any
time before entry of judgment (Sec. 1, Rule 57, Rules of Court).

If it is applied for at the commencement of the action, the application may be

incorporated in the verified complaint alleging all the grounds and complying
with all the requisites for the grant of the application.

VI. BY WHOM APPLIED FOR

It is not only the plaintiff who may apply for the issuance of a writ of
preliminary attachment. The pertinent provisions of Sec. 1 of Rule 57 provide
that "a plaintiff or any proper party may have the property of the adverse
party attached "* * *". This term, proper party is broad enough to refer also
to a defendant who filed a counterclaim, a cross-claim or a third-party
complaint. What is important is the applicant can satisfy the requirements of
the rules for the grant of the writ.

VII. EX PARTE ISSUANCE OF THE WRIT (BAR 2005; 2001;1996;1993;

1991)

The writ of preliminary attachment may be granted upon motion and notice
and hearing by the court in which the action is pending and may even be
issued by the Court of Appeals or the Supreme Court (Sec. 2, Rule 57, Rules
of Court).

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It may also be issued ex party and even before summons is served upon the
defendant. However, the writ may not be enforced and may not be validly
implemented unless preceded by a service of summons upon the defendant,
or simultaneously accompanied by service of summons, a copy of the
complaint, the application for attachment, the order of attachment and the
attachment bond.

Implementation of the writ of attachment without the required jurisdiction

over his person is null and void.

Illustration (Bar 2005)

Katy filed an action against Tyrone for collection of the sum of Pl million in
the Regional Trial Court, with an ex parte 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 savings deposit with the bank,
the sheriff immediately served a notice of garnishment on the bank to
implement the writ of preliminary attachment. The following day, the sheriff
proceeded to Tyrone's house and served him the summons, with copies of
the complaint containing the application for writ of preliminary attachment,
Katy's affidavit, order of attachment, writ of preliminary attachment and
attachment bond.

Within fifteen (15) days from service of summons, Tyrone filed a motion to
dismiss and to dissolve the writ of preliminary attachment on the following
grounds: (1) the court did not acquire jurisdiction over his person because
the writ was served ahead of the summons: (ii) the writ was improperly
implemented; and (iii) Said writ was improvidently issued because the
obligation in question was already fully paid.

Resolve the motion with reasons.

Suggested answer.

The jurisdiction of the court over the subject matter over the person of the
defendant was acquired when he was served with summons. This jurisdiction
was not affected by the fact that the writ was served ahead of the summons.
What was affected was the enforceability of the writ. Under the Rules of
Court, no levy on attachment pursuant to the writ shall be enforced unless it
is preceded, or contemporaneously accompanied, by service of summons,
together with a copy of the complaint, the application for attachment, the
applicant's affidavit and bond, and the order and writ of attachment, on the
defendant within the Philippines (Sec. 5, Rule 57, Rules of Court).

The writ was improperly implemented because it was served prior to the
service of summons (Sec. 5, Rule 57, Rules of Court).

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The defense of payment to support a motion to discharge the attachment is
not proper. Such defense should have been invoked either in a ground for
motion to dismiss or as an affirmative defense in the answer.

Illustration (Bar 2001)

May a writ of preliminary attachment be issued ex parte? Briefly state the

reasons for your answer.

Suggested answer.

A writ of preliminary attachment may be issued ex parte although it may be

also issued upon notice and hearing (Sec. 2, Rule 57, Rules of Court). An ex
parte issuance of the writ is intended to preempt any possible disposition of
property by the adverse party to the detriment of the attaching creditor and
thus defeat the very purpose of attachment (Mindanao Savings & Loan
Association, Inc. vs. CA, 172 SCRA 480).

Illustration (Bar 1996)

xxx

xxx
xxx

In a case for it sum of money, the trial court granted ex parte the prayer for
issuance of a writ of preliminary attachment. The writ was immediately
implemented by the sheriff. The defendant filed a motion to discharge the
writ of preliminary attachment on the ground that it was issued and
implemented prior to the service of summons. Plaintiffs opposed arguing that
under the Rules of Court, the writ can be applied for and granted at the
commencement of the action or at any time thereafter. In any event, plaintiff
argues that the summons, which was eventually served cured whatever
irregularities that might have attended the enforcement of the writ.

How would you rule on the conflicting contentions of the parties?

Suggested answer:

The writ can be applied for at the commencement of the action (Sec. 1, Rule
57, Rules of Court). It can be issued ex parte (Sec. 2, Rule 57, Rules of
Court). However, the enforcement of the writ may not be done and may not
be validly implemented unless preceded by a service of summons upon the
defendant, or simultaneously accompanied by service of summons, a copy of
the complaint, the application for attachment, the order of attachment, and
the attachment bond.

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Illustration (Bar 1993)

On May 2, 1992, Precision, Inc., filed a verified complaint for the recovery of
a sum of money against Summa, Inc. The complaint contained an ex parte
application for a writ of preliminary attachment.

On May 3, 1992, the Trial Court issued an order granting the ex parte
application and fixing the attachment bond at P2 million.

On May 8, 1992, the attachment bond having been submitted by Precision,

Inc., the writ of preliminary attachment was issued.

On May 9, 1992, summons together with a copy of the complaint, the writ of
preliminary attachment and a copy of the attachment, was served on
Summa, Inc., and pursuant to the writ, the sheriff attached properties
belonging to Summa, Inc.

On July 6, 1992, Summa, Inc. filed a motion to discharge the attachment for
alleged lack of jurisdiction to issue the same because, at the time the order
of attachment and the writ of preliminary attachment were issued, the court
had not yet acquired jurisdiction over the person of Summa, Inc. It argued
that a writ of preliminary attachment may not issue ex parte against a
defendant before acquisition of jurisdiction over the latter's person by service
of summons or his voluntary submission to the court's authority.

Should the motion be granted?

Suggested answer.

The motion should not be granted. A writ of preliminary attachment may be

granted at the commencement of the action and even before jurisdiction has
been acquired over the person of the defendant (Sec. 1, Rule 57, Rules of
Court). It may be issued ex parte (Sec. 2, Rule 57, Rules of Court).

Illustration (Bar 1991)

Upon failure of X to pay the promissory note for P100,000 which he executed
in favor of Y, the latter filed the complaint for a sum of money with
application for the issuance of a writ of preliminary attachment alleging
therein that X is about to dispose of his properties in fraud of his creditors.

May the court issue the writ immediately upon filing of the complaint and
before service of summons?

If service of summons is indispensable before the writ is issued, is hearing on

the application necessary?

If the writ is issued and X filed a motion to quash the attachment, may the
motion be granted ex parte?

Suggested answers:

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The writ may be issued upon the filing of the complaint and even before the
service of summons upon the defendant (Sec. 1, Rule 57, Rules of Court).

A hearing on the application is not necessary. The application for the writ
need not be heard. It may be issued ex parte. The issuance of summons is
not even indispensable before the writ is issued (Sec. 1, Rule 57, Rules of
Court).

The motion to quash may not be granted ex paste. A hearing is necessary.

Illustration (Bar 1978)

X filed a complaint in the Court of First Instance of Manila (now RTC) against
Y for the recovery of a sum of money. X at the same time also prayed for the
issuance of an order of preliminary attachment against Y, and included in his
affidavit, among others, that Y was disposing of his properties with intent to
defraud X. The court immediately issued the writ of preliminary attachment
ex paste. Y moved to discharge the attachment on the ground that it was
irregularly issued, in that Y was not notified at all of such application or about
the time and place of the hearing thereof, in gross violation of the Rules and
his right to due process of law.

As counsel for X prepare an opposition to Y's motion to discharge the

attachment.

Suggested answer.

Y's motion to discharge the attachment must be denied. A writ of preliminary

attachment may be issued at the commencement of the action (Sec. 1, Rule
57, Rules of Court) and can be issued ex parte (Sec. 2, Rule 57, Rules of
Court).

VIII. WHY EX PARTE GRANT OF THE WRIT IS ALLOWED

An application for an order and writ of execution may be granted ex paste

because it is possible that during the course of the hearing, the party against
whom the writ is sought may dispose of his property or abscond before the
writ is issued.

It is not the notice to the defendant that is sought to be avoided but the time
which such hearing would take because the defendant may delay the hearing
to be able to dispose of his properties.

IX. STAGES IN THE GRANT OF PRELIMINARY ATTACHMENT

The grant of the provisional remedy of attachment has three stages: first,
the court issues the order granting the application; second, the writ of
attachment issues pursuant to the order granting the writ; and third, the writ
is implemented. Jurisdiction over the person of the defendant is not

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necessary in the first two stages. In the third stage, when the writ is to be
implemented, the court must have acquired jurisdiction over the person of
the defendant. Without such jurisdiction having been obtained, the court has
no power and authority to act in any manner against the defendant (Mangila
vs. Court of Appeals, GR. No. 125027, August 12, 2002). Hence, no levy on
attachment pursuant to the writ of preliminary attachment shall be enforced
unless it is preceded, or contemporaneously accompanied, by the service of
summons, together with a copy of the complaint, the application for
attachment, the applicant's affidavit and bond, and the order and writ of
attachment, on the defendant within the Philippines.
X. When contemporaneous service is not required

The requirement of prior or contemporaneous service of summons shall not

however, apply in the following instances:

Where the summons could not be served personally or by substituted service

despite diligent efforts;

The defendant is a resident of the Philippines who is temporarily out of the

country;

The defendant is a non-resident; or

The action is one in rem or quasi in, rem (Sec. ,5, Rule 57, Rules of Court).

XI. Requisites for the issuance of an order/writ of preliminary attachment

l. The issuance of an order/writ of execution requires the following:

The case must be any of those where preliminary attachment is proper;

The applicant must file a motion (ex parte or with notice and hearing);

The applicant must show by affidavit (under oath) that there is no sufficient
security for the claim sought to be enforced; that the amount claimed in the
action is as much as the sum of which the order is granted above all
counterclaims; and

The applicant must post a bond executed to the adverse party. This is called
an attachment bond (Sec. 3, Rule 57, Rules of Court). This bond answers for
all damages incurred by the party against whom the attachment was issued
and sustained by him by reason of the attachment.

Since Sec. 3 of Rule 57 requires that there must be a showing that there is
no sufficient security for the claim sought to be enforced by the applicant,
the writ will not be issued if a real estate mortgage exists to secure the
obligation even if instead of filing an action for foreclosure, an action for a
sum of money was instead filed.

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To justify the issuance of the writ of preliminary attachment, it must be
shown that the security is insufficient to cover the claim.

The bond executed in favor of the adverse party is conditioned upon the
payment of all costs which the adverse may be adjudged as entitled to and
all damages which he may sustain by reason of the attachment, if it shall be
finally adjudged that the party applying for attachment was not entitled
thereto (Sec. 4, Rule 57, Rules of Court). The bond shall not answer for
damages sustained which do not arise by reason of the attachment. This is
clear from the tenor of Sec

of Rule 57. For the liability under the bond to apply, there must also be a
final judgment that the attaching party was not entitled to an attachment.

XII. Grant of preliminary attachment, discretionary

The grant of the remedy is addressed to the discretion of the court. Whether
or not the application shall be given full credit is discretionary upon the court.
In determining the propriety of the grant, the court also considers the
principal case upon which the provisional remedy depends.

XIII. Strict construction of the rule

The rule on the issuance of a writ of attachment must be strictly construed in

favor of the defendant. If all the requisites for the issuance of the writ do not
exist, the court which issues the writ acts without jurisdiction.

The writ must be granted only on concrete and specific grounds and not
merely on general averments quoting the words of the rules.

XIV. How to prevent the attachment

If the attachment has not yet been effected, the party whose property is
sought to be attached, may prevent the attachment by doing either of two
things: (1) By depositing with the court from which the writ was issued an
amount equal to the value of the bond fixed by the court in the order of
attachment or an amount equal to the value of the property to be attached,
exclusive of costs, or (2) by giving a counter-bond executed to the applicant,
in an amount equal to the bond posted by the latter to secure the attachment
or in an amount equal to the value of the property to be attached, exclusive
of costs (Sec. 5, Rule 57; Sec. 2, Rule 57, Rules of Court).

XV. How to have the attachment discharged

l. If the attachment has already been enforced, the party whose property has
been attached may file a motion to discharge the attachment. This motion
shall be with notice and hearing. After due notice and hearing, the court shall
discharge the attachment if the movant makes a cash deposit or files a
counter-bond executed to the attaching party with the clerk of court where

17
the application is made in an amount equal to that fixed by the court in the
order of attachment, exclusive of costs (Sec. 12, Rule 57, Rules of Court).
Counter-bonds are replacements of the property formerly attached, and just
as the latter, may be levied upon after final judgment.

Note that the mere posting of the counterbond does not automatically
discharge the writ of attachment. It is only after the hearing and after the
judge has ordered the

18
discharge of attachment that the same is properly discharged.

Attachment may likewise be discharged without the need for filing of a

counter-bond. This is possible when the party whose property has been
attached files a motion to set aside or discharge the attachment and during
the hearing of the motion, he proves that (a) the attachment was improperly
or irregularly issued or enforced (Sec. 13, Rule 57, Rules of Court); or (b)
that the bond of the attaching creditor is insufficient, or (b) that the
attachment is excessive and must be discharged as to the excess (Sec. 13,
Rule 57, Rules of Court), or (c) that the property is exempt from execution,
and as such is also exempt from preliminary attachment (Sec. 2, Rule 57,
Rules of Court).

A discharge of the attachment must be made only after hearing. It has been
held that an ex parts discharge is a disservice to the orderly administration of
justice.

XVI. Damages for a wrongful attachment

l. Damages may be awarded on account of improper, irregular or excessive

attachment. The application for damages must be filed (a) before the trial, or
(b) before appeal is perfected, or (c) before the judgment becomes
executioy. There must be notice to the attaching party and his surety or
sureties (Sec. 20, Rule 57, Rules of Court).

Where there is wrongful attachment, the attachment defendant may recover

actual damages even without proof that the attachment plaintiff acted in bad
faith in obtaining the attachment. However, if it is alleged and established
that the attachment was not merely wrongful but also malicious, the
attachment defendant may recover moral damages and exemplary damages
as well.

The damages may be awarded only upon `proper hearing' (Sec. 20, Rule 57,
Rules of Court). No judgment for damages may be entered and executed
against the surety without giving it an opportunity to be heard as to the
reality or reasonableness of the damages resulting from the wrongful
issuance of the writ.

To merit an award of actual damages arising from a wrongful attachment,

the attachment defendant must prove, with the best evidence obtainable, the
fact of loss or injury suffered and the amount thereof. Such loss or injury
must be of the kind which is not only capable of proof but must actually be
proved with a reasonable degree of certainty. As to its amount, the same
must be measurable based on specific facts, and not on guesswork or
speculation. In particular, if the claim for actual damages covers unrealized
profits, the amount of unrealized profits must be estalished and supported by
independent evidence.

19
The judgment for damages shall be included in the judgment of the main
case (Sec. 20, Rule 57, Rules of Court). This means that the application for
damages cannot be setup independent of the main action and the recovery of
damages is in the same, not in a separate action.

if however, the case is on appeal and the judgment of the appellate court is
favorable to the party against whom the attachment was issued, he must file
in the appellate court a claim for damages he sustained and with due notice
to the

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4

22
attaching party and his surety or sureties. The application for damages has
to be filed before the judgment of the appellate court becomes executory.
Although the application is filed in the appellate court, the hearing of the
application may be allowed by the appellate court to be heard by the trial
court. If the applicant for damages prevails and the attachment bond is not
sufficient to cover the amount of the damages awarded, he may have
recourse against the property of the attaching party in the same action as
long as the property is not exempt from execution (Sec. 20, Rule 57, Rules of
Court).

It must also be noted that the tenor of Sec. 20 of Rule 57 does not prevent
the judgment obligor from recovering damages on account of improper
attachment even if the judgment is adverse to him.

Even a party who loses in the main case but is able to establish a right to
damages by reason of improper, irregular or excessive attachment may be
entitled to damages.

Illustration (Bar 1999)

May damages be claimed by a party prejudiced by a wrongful attachment

even if the judgment is adverse to him?

Suggested answer.

Damages may be claimed even by the losing party where the attachment
caused him damage where the attachment was improper, irregular or
excessive (Carlos vs. Sandoval, 471 SCRA 266). An improper, irregular or
excessive attachment is not validated by the fact that the attaching party
prevailed in the main action.

XVII. Attachment of property in custodia legis

Property in custodia legis may be subject to a writ of preliminary attachment.

If the property attached is in custodia legirt, the rule require that a copy of
the writ of attachment shall be filed with the proper court or quasi-judicial
agency, and notice of the attachment served upon the custodian of said
property (Sec. 7, last par., Rule 57, Rules of Court). The attachment on a
property already in custodia legis merely operates as a lien and does not
mean that the attaching court will wrest custody of the property from
another court. In the same vein, there is likewise no rule which prohibits the
attachment of a property previously attached. What will arise in this event
will be a priority in the liens which means that the first attachment will have
priority over subsequent attachments.

Illustration (Bar 1999)

xxx

xxx

23
xxx

In a case, the property of an incompetent under guardianship was in custodia

legis. Can it be attached? Explain.

Suggested answer.

The property may be attached provided that a copy of the writ of attachment
shall be filed with the court and the notice of attachment shall be served
upon the custodian of the property (Sec. 7, last par., Rule 57, Rules of
Court).

24
XVIII. Proceedings where property attached is claimed by a third person

Certain remedies are available to a third person, not party to the action but
whose property is the subject of execution. 1. He may avail of the remedy
called terceria by making an affidavit of his title thereto or his right to
possession thereof, stating the grounds of such right or title. The affidavit
must be served upon the sheriff and the attaching party (Sec. 14, Rule 57,
Rules of Court).

Upon service of the affidavit upon him, the sheriff shall not be bound to keep
the property under attachment except ii' the attaching party files a bond
approved by the court. The sheriff shall not be liable for damages for the
taking or keeping of the property, if such bond shall be filed.

The third party-claimant may also invoke the court's authority in the same
case and move for a summary hearing on his claim. Upon application of the
third person through a motion to set aside the levy on attachment, the court
shall order a summary hearing for the purpose of determining whether the
sheriff has acted rightly or wrongly in the performance of his duties in the
execution of the writ of attachment. The court may order the sheriff to
release the property from the erroneous levy and to return the same to the
third person. In resolving the application, the court cannot pass upon the
question of title to the property with any character of finality but only insofar
as may be necessary to decide if the sheriff has acted correctly or not.

This remedy is akin to an intervention but the court, in its discretion, may
allow the intervention of a party claimant at this stage for the purpose of
invoking the authority of the court in vindication of his claim. A person who
has a legal interest in the property attached is not barred from seeking
redress in the same court that issued the writ of preliminary attachment
because at this stage, no judgment has yet been rendered. A motion for
intervention is possible because no judgment has yet been rendered and
under the rules, a motion for intervention may be filed any time before the
rendition of the judgment by the trial court (Sec. 2, Rule 19, Rules of Court).
On the other hand, it would not be procedurally possible for a third party
claimant during the execution stage of the judgment under Rule 39 to
intervene because by then a judgment has already been rendered.
Intervention is permitted only before the rendition of judgment by the trial
court (Sec. 2, Rule 19, Rules of Court).

The third-party claimant is not precluded by Sec. 14 of Rule 57 from

vindicating his claim to the property in the same or in a separate action.
Thus, he may file a separate action to nullify the levy with. damages
resulting from the unlawful levy and seizure. This action may be a totally
distinct action from the former case Ching vs. Court ofAppeals, 423 SCRA
356).

The above remedies are cumulative and any one of them may be resorted to
without availing of the other remedies.

25
Illustration (Bar 2000)

JK's real property is being attached by the sheriff in a civil action for
damages against LM. JK claims that he is not a party to the case; that his
property is not involved in the said case; and that he is the sole or registered
owner of the

26
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5

28
said property. Under the Rules of Court, what must JK do to prevent the
sheriff from attaching his property?
Suggested answer.

Please refer to the immediately preceding topic.

II. Preliminary Injunction (Rule 58)

I. Nature of preliminary injunction

> Preliminary injunction - an ancillary or preventive remedy where a court

requires a person, a party or even a court or tribunal either to refrain
(prohibitory) from or to perform (mandatory) particular acts during the
pendency of an action. It is merely a temporary remedy subject to the final
disposition of the principal action. It is issued by the court to prevent
threatened or continuous irreparable injury to parties before their claims can
be thoroughly studied and adjudicated. Its sole objective is to preserve the
status quo until the merits of the ease can be heard fully.

Preliminary injunction is a preservative remedy for the protection of

substantive rights or interests. It is not a cause of action in itself but merely
a provisional remedy, an adjunct to a main suit is resorted to by a litigant to
protoct or proserve his rights or interests and for no other purpose during the
pendency of the principal action.

Section 3, Rule 58 of the Rules of Court provides that a preliminary

injunction may be granted when the following have been established:

That the applicant is entitled to the relief demanded, and the whole or part of
such relief consists in restraining the commission or continuance of the act or
acts complained of, or in requiring the performance of an act or acts, either
for a limited period or perpetually;

That the commission, continuance or nonperformance of the act or acts

complained of during the litigation would probably work injustice to the
applicant; or

That a party, court, agency or a person is doing, threatening, or is

attempting to do, or is procuring or suffering to be done, some act or acts
probably in violation of the rights of the applicant respecting the subject of
the action or proceeding, and tending to render the judgment ineffectual.

"A petition for a writ of preliminary injunction rests upon an alleged existence
of an emergency or of a special reason for such a writ before the case can be
regularly tried. By issuing a writ of preliminary injunction, the court can
thereby prevent a threatened or continued irreparable injury to the plaintiff
before a judgment can be rendered on the claim.

29
"The plaintiff praying for a writ of preliminary injunction must further
establish that he or she has a present and unmistakable right to be
protected; that the facts against which injunction is directed violate such
right, and there is a special and paramount necessity for the writ to prevent
serious damages. In the absence of proof of a legal right and the injury
sustained by the plaintiff, an order for the issuance of a writ of preliminary
injunction will be nullified. Thus, where the plaintiff's right is doubtful or
disputed, a preliminary injunction is not proper. The possibility of irreparable
damage without proof of an actual existing right is not a ground for a
preliminary injunction.

30
However, to establish the essential requisites for a preliminary injunction, the
evidence to be submitted by the plaintiff need not be conclusive and
complete. The plaintiffs are only required to show that they have an
ostensible right to the final relief prayed for in their complaint. A writ of
preliminary injunction is generally based solely on initial or incomplete
evidence. Such evidence need only be a sampling intended merely to give
the court an evidence of justification for a preliminary injunction pending the
decision on the merits of the case, and is not conclusive of the principal
action which has yet to be decided.

"It bears stressing that findings of the trial court granting or denying a
petition for a writ of preliminary injunction based on the evidence on record
are merely provisional until after the trial on the merits of the case shall have
been concluded."

"The trial court, in granting or dismissing an application for a writ of

preliminary injunction based on the pleadings of the parties and their
respective evidence must state in its order the findings and conclusions
based on the evidence and the law. This is to enable the appellate court to
determine whether the trial court committed grave abuse of its discretion
amounting to excess or lack of jurisdiction in resolving, one way or the other,
the plea for injunctive relief. The trial court's exercise of its judicial discretion
whether to grant or deny an application for a writ of preliminary injunction
involves the assessment and evaluation of the evidence, and its findings of
facts are ordinarily binding and conclusive on the appellate court and this
Court.

Main action for injunction distinguished from a preliminary injunction (Bar

2006)

The main action for injunction is distinct from the provisional remedy of
preliminary injunction. The former is an independent action. The latter can
only exist as an incident to a principal action. The provisional remedy is
called preliminary injunction and does not refer to injunction as a primary
action. Preliminary injunction as a provisional remedy is not a cause of action
in itself but merely an adjunct to a main suit.

The main action for injunction seeks a judgment embodying a final

injunction. A preliminary injunction seeks to preserve the status quo until the
merits can be heard. The purpose of the action for injunction is to enjoin the
defendant from the commission or continuance of a specific act, or to compel
a particular act in violation of the rights of the applicant.

An example of a main action for injunction is the action authorized under Art.
26 of the Civil Code of the Philippines against one prying into the privacy of
another's residence, meddling with or disturbing the private life or family
relations of another and other similar acts.

31
III. Purpose of preliminary injunction

As a provisional remedy, the purpose of preliminary injunction is to preserve

the status quo or to prevent future wrongs in order to preserve and protect
certain interests or rights during the pendency of the action.

32
33
 Page
136

34
- The status quo is the last, actual, peaceable and uncon-tested situation
which precedes a controversy. It is the situation existing at the time of the
filing of the case. The injunction should not establish a new relations between
the parties, but merely should maintain or re-establish the pre-existing
relationship between them.

When the injunction sought is mandatory, a writ of preliminary injunction

tends to do more than to maintain the status quo because it commands the
performance of specific acts and is issued only in cases of extreme urgency
and where the right of the applicant is clear.

Illustration (Bar 1978)

The NAWASA cut off its water service to X's residence for the latter's alleged
failure to pay his water bills for six months. X claims that he had paid all his
water bills as evidenced by receipts. NAWASA claims the receipts to be fake
and so refused to restore its water service to X's residence.

As counsel for X, what action will you take and why? Suggested answer.

As counsel for X I would file an action for specific performance and damages
against NAWASA and apply for a writ of preliminary mandatory injunction.
Here, the action for specific performance and damages is the main action and
the preliminary mandatory injunction is the provisional remedy pending the
judgment on the main action.

IV. Preliminary injunction distinguished from a final injunction

Preliminary Final
injunction injunction
- refers to the writ - when it is issued
secured as a
before the finality of judgme
the nt making the
judgment (Sec. 1, injuncti permane

Rule 58, on nt. It
perpetu restra
Rules of Court). ally ins a
person from the
continuance
or commission of an
act and
confirm
s the previous
prelimin injunctio (Sec
ary n .
9, Rule 58, Rules of
Court).

35
V. Prohibitory and mandatory
injunctions
Prohibitory Mandatory
injunction injunction
1. Injunction is 1. It is mandatory
prohibitory when its
when its purpose purpose is to
is to require a
prevent a person perfor
from the person to m a
performance of a particular
particular act.
act.
2. the act has not yet 2. the act has already
been been
performed and this
performed. act has
violate th right
d e s of
anothe
r.
3. the status quo 3. the status quo is
is restored
and this refers to
preserved the last
peaceab uncontest
le, ed,
pri
status or to the
controvers
y???

36
VI. Prohibitory injunction distinguished from prohibition
Prohibitory Prohibiti
injunction on
- a provisional - a special civil
remedy that is action
directed to a litigant, judgmen
not to seeking a t
a tribunal and is comman
issued to ding a tribunal,
require said party to corporation, board or
refrain officer
from a particular act to furth
(Sec. 1, desist form er
Rule 58, Rules of proceedi actio
Court). ng in the n
ha
because it s no
jurisdicti actin
on, is g in
excess of jurisdiction
or has
gravely abused its
discretion
amountin
g to lack of
jurisdiction (Sec. 2,
Rule 65,
Rules of
Court).
VII. Mandatory injunction distinguished
from mandamus
Mandatory Mandam
injunction us
- directed to a party - a special civil
litigant, action
not to a tribunal judgmen
and is seeking a t
issued to require a comman
party to ding a tribunal,
perform an act to board, officer or
restore person to
peaceabl perform minister dut
the last e a ial y
uncontested status required to be
preceding performed by
the law (Sec. 3, Rule 65,
controversy. Rules of
Court).

37
VIII. Stage of proceedings when granted

Preliminary injunction is granted at any stage of the proceedings prior to the

judgment or final order (Sec. 1, Rule 58, Rules of Court).

IX. Court that issues preliminary injunction

Preliminary injunction must be applied for and issued by the court where the
action is pending (Sec. 2, Rule 58, Rules of Court). The term "court" includes
a Municipal or a Metro-politan Trial Court. Where the main action is within
the jurisdiction of the Municipal Trial Court, then it is this court which shall
issue the preliminary injunction.

Example: Under Sec. 15 Of Rule 70 of the Rules of Court, the plaintiff in a

forcible entry and unlawful detainer case, may, within five (5) days from the
filing of the complaint, secure from the court a preliminary mandatory
injunction to restore him in his possession. Since a forcible entry case is
cognizable by the Municipal Trial Court, the preliminary injunction sought for
in this action must be applied for in the Municipal Trial Court.

If the main action is one for injunction, the Municipal Trial Court cannot grant
the preliminary injunction. This is because an action for injunction is one
incapable of pecuniary estimation and hence, is cognizable by the Regional
Trial Court.

If the action is pending in the Court of Appeals, the application must be made
with the Court of Appeals. If it is pending in the Supreme Court, then the
application must be made in such court. The preliminary injunction applied
for in the Court of Appeals may be issued by the said court or any member
thereof. If applied for in the Supreme Court, it may be issued by the
Supreme Court or any member thereof (Sec. 2, Rule 58, Rules of Court). This
is a situation where a member of the court may issue a writ of preliminary

38
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7

40
injunction without the participation of other members of the court.

X. Requisites for issuance of a writ of preliminary injunction (Bar 2006) or

temporary restraining order

The applicable provisions of the Rules of Court enumerate the following

requisites for the issuance of a writ of preliminary injunction or a temporary
restraining order:

There must be a verified application (Sec. 4, Rule 38, Rules of Court).

Absence of a verification makes an application or petition for preliminary
injunction patently insufficient both in form and substance.

The applicant must establish that he has a right to relief, a right in esse or a
right to be protected and the act against which the injunction is directed is
violativo of such right.

The applicant must establish that there is a need to restrain the commission
or continuance of the acts complied of and if not enjoined would work
injustice to the applicant

The applicant must post a bond, unless exempted by the court. This bond,
which shall be in an amount to be fixed by the court, is executed in favor of
the party enjoined to the effect that the applicant shall pay to the party
enjoined all damages which he may sustain by reason of the preliminary
injunction or the restraining order if the court should finally decide that the
applicant was not entitled to the writ or order (Sec. 4, Rule 58, Rules of
Court; Bar 2006).

When an application or a writ of preliminary injunction or a temporary

restraining order is included in a complaint or any initiatory pleading, the
case if filed in a multi-sala court, shall be raffled only after notice to and in
the presence of the party sought to be enjoined. The notice shall be preceded
or contemporaneously accompanied by service of summons upon the
defendant. Together with the summons shall be a copy of the complaint and
the applicant's affidavit and bond (Sec. 4, Rule 58, Rules of Court).

However, where the summons could not be served upon the defendant either
in person or by substituted service or when the defendant is temporarily out
of the Philippines or when he is a non-resident, the requirement of prior or
contemporaneous service shall not apply (Sec. 4, Rule 58, Rules of Court).

The plaintiff praying for a writ of preliminary injunction must further establish
that he or she has a present and unmistakable right to be protected; that the
facts against which injunction is directed violate such right; and there is a
special and paramount necessity for the writ to prevent serious damages. In
the absence of proof of a legal right and the injury sustained by the plaintiff,
an order for the issuance of a writ of preliminary injunction will be nullified.
Thus, where the plaintiff's right is doubtful or disputed, a preliminary

41
injunction is not proper. The possibility of irreparable damage without proof
of an actual existing right is not a ground for a preliminary injunction.

42
XI. Quantum of evidence required

To establish the essential requisites for a preliminary injunction, the evidence

to be submitted by the plaintiff need not be conclusive and complete. The
plaintiffs are only required to show that they have an ostensible right to the
final relief prayed for in their complaint. A writ of preliminary injunction is
generally based solely on initial or incomplete evidence. Such evidence need
only be a sampling intended merely to give the court an evidence of
justification for a preliminary injunction pending the decision on the merits of
the case, and is not conclusive of the principal action which has yet to be
decided.

At the hearing, mere prima facie evidence is needed-to establish the

applicant's rights or interests in the subject matter of the main action
because the applicant is required to show only that he has an ostensible right
to the final relief prayed for in his complaint.

It bears stressing that findings of the trial court granting or denying a

petition for a writ of preliminary injunction based on the evidence on record
are merely provisional until after the trial on the merits of the case shall have
been concluded. The trial court, in granting or dismissing an application for a
writ of preliminary injunction based on the pleadings of the parties and their
respective evidence must state in its order the findings and conclusions
based on the evidence and the law. This is to enable the appellate court to
determine whether the trial court committed grave abuse of its discretion
amounting to excess or lack of jurisdiction in resolving, one way or the other,
the plea for injunctive relief. The trial court's exercise of its judicial discretion
whether to grant or deny an application for a writ of preliminary injunction
involves the assessment and evaluation of the evidence, and its findings of
facts are ordinarily binding and conclusive on the appellate court and this
Court.

XII. Notice and hearing (Bar 2001; 1998)

A writ of preliminary injunction cannot be issued without a prior notice and

hearing. Under the Rules, "No preliminary injunction shall be granted without
hearing and prior notice to the party or person sought to be enjoined (Sea 5,
Rule 58, Rules of Court). It cannot be issued ex parte (Bar 2001).

Subject to the rules governing matters of extreme urgency (Sec. 5, 2nd par.,
Rule 58, Rules of Court), the application for a temporary restraining order
shall be acted upon only after all parties are heard in a summary hearing.
This hearing shall be conducted within twenty-four (24) hours after the
sheriff's return of service and/or the records are received by the branch
selected by raffle and to which the records shall be transmitted immediately
(Sec. 4, last par., Rule 58, Rules of Court).

43
Where the case is raffled, the period within which to conduct a summary
hearing in an application for a temporary restraining order is not 24 hours
after the case has been raffled but 24 hours after the records are transmitted
to the branch to which it is raffled.

XIII. Temporary restraining order (Bar 2006)

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8

46
l. If it shall appear from facts shown by affidavits or by the verified
application that great or irreparable injury would result to the applicant
before the matter can be heard on notice, the court in which the application
for preliminary injunction was made may issue a temporary restraining order
(TRO) ex parte for a period not exceeding 20 days from service to the party
sought to be enjoined. Within the said twenty day period, the court must
order said party to show cause why the injunction should not be granted.
Also within the same period, the court shall determine whether or not the
preliminary injunction shall be granted and then shall issue the corresponding
order (Sec. 5, Rule 59, Rules of Court).

The applicant shall file a bond, unless exempted by the court (Sec. ON, Rule
58, Rules of Court). The rule grants the court the discretion on the matter of
the posting of a bond. This grant of discretion to require a bond before
granting a temporary restraining order, is not however, intended to give the
judge the license to exercise such discretion arbitrarily to the prejudice of the
defendant. Unless it appears that the enjoined party will not suffer any
damage, the presiding judge must require the applicant to post a bond,
otherwise the courts could become instruments of oppression and
harassment.

If the matter is of extreme urgency, the executive judge of a multi-sala court

or the presiding judge of a singlesala court may issue a TRO effective for only
72 hours from issuance, not service. Within this period the executive judge
shall conduct a summary hearing to determine whether or not the TRO can
be extended to 20 days. The 72 hours shall be included in the maximum 20
day period set by the Rules (Sec. 5, Rule 58, Rules of Court). When the court
is a multi-sala court, the TRO is not to be issued by any other judge other
than the executive judge of said court (Bar 2006).

With the exceptions of those provisions that apply necessarily to multi-sala

courts, the same rules shall apply to single-sala stations especially with
regard to immediate notice to all parties of all applications for TRO (Sec. 4,
Administrative Circular 2095, September 12, 1995).

A temporary restraining order is issued to preserve the status quo until the
hearing of the application for preliminary injunction. The judge may issue a
temporary restraining order with a limited life of twenty (20) days from date
of issue. If before the expiration of the twenty (20) day period, the
application for preliminary injunction is denied, the temporary restraining
order would be deemed automatically vacated. If no action is taken by the
judge within the twenty (20) day period, the temporary restraining order
would automatically expire on the 20th day by the sheer force of law, no
judicial declaration to that effect being necessary.

The rule against the non-extendibility of the twenty (20) day effectivity of a
temporary restraining order is absolute if issued by a Regional Trial Court.
The failure of the trial court to fix a period in the temporary restraining order
does not convert it to a preliminary injunction. Where there is an omission to

47
fix the period, the twenty (20) day period is deemed incorporated in the
order.

48
It is improper for a judge to order a hearing on the issuance of a temporary
restraining order where it was not prayed for in the complaint.

A status quo order is not a temporary restraining order. It is more in the

nature of a cease and desist order, has no specified duration and does not
specifically direct the performance of an act. It lasts until it is revoked. Its
duration may even be subject to agreement of the parties. No bond is
required for its issuance (Bar 2006).

Illustration (Bar 1998)

What is a temporary restraining order (Bar 2006)
How does it differ from a writ of preliminary injunction.

Suggested answers:

A temporary restraining order (TRO) is an order to maintain the status quo

between or among the parties until the determination of the prayer for a writ
of preliminary injunction.

A writ of preliminary injunction cannot be granted without notice and

hearing. A temporary restraining order may be granted ex parte if it shall
appear from facts shown by affidavits or by the verified application that great
or irreparable injury would result to the applicant before the matter can be
heard on notice, the court in which the application for preliminary injunction
was made may issue a TRO ex parte for a period not exceeding 20 days from
service to the party sought to be enjoined (Sec. 5, Rule 58, Rules of Court).

Illustration (Bar 2001)

An application for a writ of preliminary injunction with a prayer for a

temporary restraining order is included in a complaint and filed in a multi-
sala Regional Trial Court consisting of Branches 1, 2, 3, and 4. Being urgent
in nature, the Executive Judge, who was sitting in Branch 1, upon the filing of
the aforesaid application immediately raffled the case in the presence of the
judges of Branches 2, 3 and 4. The case was raffled to branch 4 and the
judge thereof immediately issued a temporary restraining order.

Is the temporary restraining order valid?

Suggested answer:

The temporary restraining order is not valid for two reasons (a) The facts
show a multi-sala court. In this kind of court, it is only the Executive Judge
who can issue the temporary restraining order ex parte (Sec. 5, Rule 58
Rules of Court); and (b) There is no showing that the matter is of extreme
urgency and that the applicant would suffer from grave or irreparable injury
if the desired temporary restraining order would not be issued.

49
Illustration (Bar 2001)

xxx
May a writ of preliminary attachment be issued ex parte?

Suggested answer:

A writ of preliminary injunction cannot be issued ex parte. The rule is clear. It

provides that a preliminary injunction cannot be issued without a prior notice
and hearing (Sec. 5, Rule 58, Rules of Court).

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9

52
XIV. Issuance of temporary restraining order by the Court of Appeals (Bar
2006) and the Supreme Court

A temporary restraining order (TRO) may be issued by the Court of Appeals

or any member thereof. If so issued, it shall be effective for 60 days from
notice to the party sought to be enjoined.

A temporary restraining order issued by the Court of Appeals cannot exist

indefinitely; it has a lifetime of a non-extendible period of sixty days and
automatically expires on the sixtieth day. No judicial declaration that it has
expired is necessary, and, the lower courts, including the Court ofAppeals,
have no discretion to extend the same. A second TRO by the Court of
Appeals after the expiration of the sixty day period is a patent nullity.

A temporary restraining order (TRO) may also be issued by the Supreme

Court or a member thereof. If so issued, it shall be effective until further
orders (Sec. 5, Rule 58, Rules of Court).

Illustration (Bar 1988)

What is the duration of a temporary restraining order (TRO) issued by a (i)

Regional Trial Court, (ii) the Court of Appeals, and (iii) the Supreme Court?

Suggested answer.

Please refer to the immediately preceding topic.

XV.Nature of an order granting a preliminary injunction

The issuance of a writ of preliminary injunction rests entirely within the

discretion of the trial court and is generally not interfered with except in
cases of manifest abuse. The assessment and the evaluation of evidence in
its issuance involve findings of facts ordinarily left to the trial court for its
conclusive determination.

An order granting a writ of preliminary injunction is an interlocutory order,

not a final order. An interlocutory order does not dispose of a case
completely but leaves something to be done (Bar 2006). The grant of the
writ is therefore not appealable. The special civil action of certiorari is
therefore, the correct remedy.

XVI. Examples of cases justifying the issuance of a writ of preliminary

injunction

The provisional remedy may be availed of when a petition for certiorari under
Rule 65 of the Rules of Court is filed. The filing of a petition does not
interrupt the principal case unless a temporary restraining order or a writ of
preliminary injunction has been issued against the respondent tribunal or
officer (Sec. 5, Rule 65, Rules of Court). Settled is the rule that to arrest the

53
course of the principal action during the pendency of certiorari proceedings,
there must be a restraining order or a writ of preliminary injunction from the
higher court directed to the lower court.

Illustration: Defendant filed a petition for certiorari alleging that the

Metropolitan Trial Court gravely abused its discretion in denying his motion to
dismiss and the subsequent motion for reconsideration. During the pendency
of the petition in the Regional Trial Court, the plaintiff filed a motion to
declare the defendant in default for failure to file an answer to the complaint
within the reglementary

54
period. The Municipal Trial Court, if it grants the motion, cannot be
considered to have committed a procedural error. This is because the period
to answer was not interrupted by the filing of the petition. The defendant
should have obtained a preliminary injunction or a temporary restraining
order.

Illustration (Bar 2003)

A filed with the Metropolitan Trial Court of Manila an action for specific
performance against B, a resident of Quezon City, to compel the latter to
execute a deed of conveyance covering a parcel of land situated in Quezon
City having an assessed value of P19,0000. B received the summons and a
copy of the Complaint on 02 January 2003. On 10 January 2003, B filed a
Motion to Dismiss the Complaint on the ground of lack of jurisdiction
contending that the subject matter of the suit was incapable of pecuniary
estimation. The court denied the motion, In due time, B filed with the
Regional Trial Court a Petition for Certiorari praying that the said Order be
set aside because the Metropolitan Trial Court had no jurisdiction over the
case.

On 13 February 2003, A filed with the Metropolitan Trial Court a motion to

declare B in default. The motion was opposed by B on the ground that his
petition for certiorari was still pending.
(a) xxx

(b)Resolve the motion to declare the defendant

in default.

Suggested answer:

The motion to declare B in default should be granted. B failed to file his

answer within the period prescribed by the Rules (Sec. 3, Rule 9, Rules of
Court). The filing of a petition for certiorari did not have the effect of
suspending the proceedings in the case and the running of the reglementary
period. B should have obtained a writ of preliminary injunction or a
temporary restraining order from the Regional Trial Court when he filed the
petition for certiorari.

Illustration (Bar 1984)

A, a grocery owner, sued B, before a Regional Trial for the payment of some
merchandise. When the sheriff failed to effect service of summons on B at
Morong, Rizal, the address stated in the complaint, the Court ordered the
publication of the summons and a copy of the complaint in a newspaper of
general circulation in Rizal.

As B was actually no longer residing in Rizal and consequently did not

become aware of the collection suit against him, he failed to f.le-his answer

55
in court. He was therefore declared in default and a judgment was in due
time rendered against him.

One year after the date of judgment, a levy on execution was made on B's
properties.

xxx

What remedies, including provisional ones, if any, would be available to B

and to what forum should he go for relief? Explain.

Suggested answer:

An action for annulment of the judgment should. be filed with the Regional
Trial Court, the action being one incapable of pecuniary estimation. To enjoin
the , execution sale, the

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0

58
action for annulment must be coupled with a prayer for the issuance of a writ
of preliminary injunction or a temporary restraining order.

Preliminary injunction may be availed of when a petition for relief under, Rule
38 of the Rules of Court is filed. Remember that the petition is filed after a
judgment has already become final and executory. Assuming that the
prevailing party has not yet filed a motion for an order of execution, the
pendency of a petition for relief will not prevent the execution of the
judgment. To stay its execution, a preliminary injunction would be advisable.
Common reason however, dictates that when the petition for relief is
dismissed, the injunction which may have been obtained to stay the
enforcement of the judgment is necessarily dissolved.

The availmentof preliminary injunction should also apply when an action to

annul a judgment is filed under Rule 47 to prevent the execution of the
judgment.

Illustration (Bar 2002)

A default judgment was rendered by the RTC ordering D to pay P a sum of

money. The judgment became final, but D filed a petition for relief and
obtained a writ of preliminary injunction staying the enforcement of the
judgment. After hearing, the RTC dismissed the D's petition, whereupon P
immediately moved for the execution of the judgment in his favor. Should P's
motion be granted? Why?

Suggested answer.

P's motion should be granted. The dismissal of the petition has the effect of
dissolving the writ of preliminary injunction (Golez vs. Leonidas,107 SCRA
187). There is no more injunction that stays the execution of the judgment
that has already become final and executory.

A preliminary mandatory injunction may be availed of to restore the plaintiff

in his possession in a complaint for forcible entry or unlawful detainer (Sec.
15, Rule 70, Rules of Court).

XVII. Examples of cases in which injunction/preliminary injunction will not be

issued

Under BP Blg. 227 amending the Labor Code of the Philippines a court cannot
issue a temporary or permanent injunction in cases growing out of a labor
dispute. Under Art.

of the Labor Code of the Philippines, it is the National Labor Relations

Commission (NLRC) that issues an injunction in labor disputes (See. 1, Rule
X, 2005 Revised Rules of Procedure of the NLRC).

59
No temporary or permanent injunction or restraining order in any case
involving or growing out of labor disputes shall be issued by any court or
other entity except as otherwise provided in Articles 218 and 264 of the
Labor Code. It is the NLRC which may grant injunctive relief under Art. 218
of the Labor Code.

The prohibition against issuance of injunction or restraining order in any case

growing out of a labor dispute does not apply when the injunction is sought
by a third person whose property is sought to be levied upon to satisfy the
liability of another person.

60
Under RA No. 8735 and PD 1818, there is a prohibition on the issuance of
temporary restraining orders, preliminary injunctions, or preliminary
mandatory injunctions against the execution or implementation of
government infrastructure projects, essential government projects, including
arrastre and stevedoring operations.

A restraining order or a preliminary injunction may not be issued by any

court against the Presidential Agrarian Reform Council (PARC) or any of its
duly authorized agencies in any case connected with the application,
implementation or enforcement of the CARP.

An injunction cannot be issued against the Asset Privatization Trust (Sec. 31-
A, Proclamation No. 50-A. Note: The functions of the Asset Privatization
Trust have been taken over by the Privatization and Management Office of
the Department of Finance (E.O. No. 323, 2000).

A court may not interfere by injunction with the orders of another court of
co-equal rank or decrees of a court with concurrent or coordinate jurisdiction.

The Regional Trial Court may not issue injunction against quasi judicial
bodies of equal rank such as the Social Security Commission, Securities and
Exchange Commission.

The Regional Trial Court may not issue injunction against the Intellectual
Property Office, Commission on Elections, or Workmen's Compensation
Commission.

No court shall have authority to grant an injunction to restrain the collection

of any national internal revenue tax, fee, or charge imposed by the Code (RA
No. 8424, §218).

Trial courts are enjoined from issuing orders releasing imported articles
impounded by the Bureau of Customs. It is settled jurisprudence that the
Collector of Customs has exclusive jurisdiction over seizure and forfeiture
proceedings, and regular courts cannot interfere thereof or stifle and put it to
naught.

An injunction cannot be issued against consummated acts like against a

judgment that has already been executed for the purpose of stopping its
execution.

An injunction cannot be issued to transfer possession or control of a property

to another when the legal title is still in dispute between the parties and
whose legal title has not been clearly established.

An injunction cannot be issued for the purpose of establishing new relations

between the parties.

61
A preliminary injunction cannot be issued where there is a lack of a clear and
unmistakable right on the party of the applicant as when the complainant's
right is doubtful or disputed. Granting the application constitutes grave abuse
of discretion.

Courts should also avoid issuing injunctions which in effect would dispose of
the main case without trial.

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141

64
Injunction will not lie to restrain a criminal prosecution, except:

to afford adequate protection to the constitutional rights of the accused;

when necessary for the orderly administration of justice or to avoid

oppression or multiplicity of actions;
when double jeopardy is clearly apparent;

where the charges are manifestly false and motivated by the lust for
vengeance; or

where there is clearly no prima facie case against the accused and a motion
to quash on that ground has been denied.

No temporary restraining order or writ of preliminary injunction against the

extrajudicial foreclosure of mortgage shall be issued on the allegation that
the loan has been paid or is not delinquent unless the application is verified
and supported by evidence of payment. If the ground is that the interest is
unconscionable, no TRO or writ of preliminary injunction shall be issued
unless the debtor pays the mortgagee at least 12% interest per annum on
the principal obligation as stated in the application for foreclosure sale, which
shall be updated monthly while the case is pending (A.M. 9910-5-0, Rules on
Extrajudicial and Judicial Foreclosure of Real Estate Mortgage, effective
March 10, 2007).

Illustration (Bar 1999)

Will injunction lie to restrain the commencement of a criminal action?

Suggested answer:

Please refer to the immediately preceding topic. Illustration (Bar 1996)

xxx
xxx

ABC Cattle Corporation is the holder of a pasture lease agreement since 1990
covering 1,000 hectares of pasture land surrounded with fences. In 1992, D
was issued a pasture lease agreement covering 930 hectares of land adjacent
to ABC's. A relocation survey showed that the boundaries of D's land
extended 580 hectares into ABC's pasture land. As ABC persistently blocked
D's advances into its property, D filed a complaint with preliminary injunction
to enjoin ABC from restraining him in the exercise of his lease rights.

If you were the judge, would you issue a preliminary injunction? Explain.

Suggested answer.

65
I would not issue a writ of preliminary injunction. The writ will not be issued
to take property out of the possession of another whose right has not been
clearly established

Under Sec. 25 of the New Central Bank Act (R.A. 7653), no restraining order
or injunction shall be issued by the court enjoining the BSP from examining
any institution subject to its supervision or examination, unless there is
convincing proof that the action of the BSP is plainly arbitrary and made in
bad faith and the petitioner or plaintiff files a bond executed in favor of BSP,
in an amount to be fixed by the court.

66
A writ of preliminary injunction will not issue if the act sought to be enjoined
is already consummated or is a fait accompli.

XVIII. How to dissolve a writ of preliminary injunction or restraining order

A writ of preliminary injunction or temporary restraining order may be

dissolved. The party enjoined may file a motion to dissolve the injunction or
TRO with notice and hearing of the motion upon showing by affidavits that
the person enjoined would suffer irreparable damage while the applicant can
be fully compensated for such damages as he may suffer. The movant must
also file a bond conditioned upon the payment of al damages which the
applicant may suffer by the dissolution of the injunction or restraining order.
If it appears that the extent of the preliminary injunction or restraining order
granted is too great, it may be modified (Sec. 6, Rule 57, Rules of Court).

III. Receivership (Rule 59)

I. Nature of a receivership

The purpose of a receivership as a provisional remedy is to protect and

preserve the rights of the parties during the pendency of the main action,
during the pendency of an appeal or as an aid in the execution of a judgment
when the writ of execution has been returned unsatisfied (Sec. 1, Rule 59,
Rules of Court). Receivership is aimed at preservation of, and at making
more secure, existing rights. It cannot be used as an instrument for the
destruction of those rights.

Examples: (a) In an action to foreclose a mortgage when the property is in

danger of being wasted or dissipated or materially injured and that its value
is in danger of not being able to cover the mortgage debt, the mortgagee
may ask for a receiver to preserve the property, (b) If the judgment obligor
refuses to apply his property to the satisfaction of the judgment, receivership
may be availed of.

The receivership provided in Rule 59 is directed to the property which is the

subject of the action and does not refer to the receivership authorized under
the banking laws and other rules or laws. Rule 59 presupposes that there is
an action and that the property subject of the action requires its
preservation.

Illustration (Bar 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, Joaquin learned from reliable sources that
Jose was quietly and gradually disposing of some of his equipment and
machinery to a businessman friend who was also engaged in furniture
manufacturing such that from confirmed reports Joaquin gathered, the

67
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?

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2

70
Suggested answer.

If I were the lawyer of Joaquin, I would apply for the appointment of a

receiver. Under the Rules, in an action for the` foreclosure of a mortgage,
the court may appoint a receiver if it can be shown that the property
mortgaged is in danger of being wasted and dissipated or materially injured,
and that its value is probably insufficient to discharge the mortgage debt
(Sec. 1, Rule 59, Rules of Court). The case at bar falls squarely under the
applicable provision.

Illustration (Bar 1995)

In a suit for the collection of a sum of money, the plaintiff applied for the
appointment of a receiver of the defendant's property to assure the payment
of the obligation. Should the court grant the application?

Suggested answer.

The court should deny the application. Receivership is not available in a mere
suit for collection of a sum of money. It is available when the property of
fund that is the subject of the litigation is in danger of being lost, removed or
materially injured which in not so in the case at bar (Sec. 1, Rule 59, Rules of
Court).

Receivership, like injunction may also be a principal action as the one

referred to in Sec. 4 of Rule 39. Rule 59 is a receivership that is ancillary to a
main action.

II. Court that can grant receivership

Receivership may be granted by the court in which the action is pending, by

the Court ofAppeals or the Supreme Court, or any member thereof (Sec. 1,
Rule 59, Rules of Court).

Procedure for appointment of a receiver

A verified application must be filed by the party applying for the appointment
of a receiver (Sec. 1, Rule 59, Rules of Court);

The applicant must have an interest in the property or funds subject of the
action (Sec. 1, Rule 59, Rules of Court);

The applicant must show that the property or funds is in danger of being lost,
wasted or dissipated (Sec. 1, Rule 59, Rules of Court);

The application must be with notice and must be set for hearing;

71
Before issuing the appointment of a receiver, the court shall require the
applicant to post a bond in favor of the adverse party. When the receiver is
appointed, the receiver shall take his

oath but before doing so, he shall file a bond. There are two bonds: the
applicant's bond and the receiver's bond (Sec. 2, Rule 59);

Before entering upon his duties, the receiver must be sworn to perform his
duties faithfully (Sec. 4, Rule 59).

IV. Powers of a receiver

To bring and defend, actions in his own name in his capacity as receiver;

To keep arid take possession of the property subject of the controversy;

To receive rents;

72
To collect debts due to himself as receiver or to the fund, property, estate,
person, or corporation of which he is the receiver;

To compound for and to compromise the same;

To make transfers;

To pay outstanding debts; to divide the money and the property that shall
remain among the persons legally entitled to receive the same; and

Generally to do such acts respecting the property as the court may authorize
(Sec. 6, Rule 59, Rules of Court).

Investment of funds by receiver

A receiver may not invest funds without an order from the court and without
the written consent of the parties to the action (Sec. 6, Rule 59, Rules of
Court).

VI. Suits against a receiver

No action may be filed against a receiver without leave of the court which
appointed him (Sec. 6, Rule 59, Rules of Court).

VII. Appointment of a party as a receiver

A party to a litigation is supposed to be a disinterested person hence, neither

party to the litigation should be appointed as a receiver without the consent
of the other.

IV. Replevin (Sec. 60)

Replevin may be a main action or a provisional remedy. As a principal action

its ultimate goal is to recover personal property capable of manual delivery
wrongfully detained by a person. Used in this sense, it is a suit in itself.

The main action for replevin action is primarily possessory in nature and
generally determines nothing more than the right of possession. For
instance, if the plaintiff claims that the defendant is in possession of his car
without lawful cause, he may file an action for replevin. While the action is
pending, the plaintiff may ask the court to allow him to have possession of
the car in the meantime because he uses the same as an economic tool and
the continued possession of the car by the defendant deprives him of a vital
source of income. The plaintiff may then apply for replevin as a provisional
remedy. Seeking to have possession of the property prior to the
determination of the action is the provisional remedy of replevin and not the
main action for replevin. Also, when the debtor defaults and the creditor
decides to foreclose the mortgage but the debtor refuses to yield possession
of the personal property, the creditor may obtain a writ of replevin as a
preliminary step for the foreclosure.

73
Illustration (Bar 1999)
What is replevin?

Suggested answer.

Please refer to the immediately preceding topic.

I. Procedure for the application for replevin

A party praying for the provisional remedy of replevin must file an application
for a writ of replevin. His application for the writ must be filed at the
commencement of the action or at any time before the defendant answers
(Sec. 1, Rule 60, Rules of Court).

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3

76
The application must contain an affidavit where the applicant particularly
describes the property that he is the owner of the property or that he is
entitled to the possession thereof.

The applicant need not be the owner of the property. It is enough that he has
a right to its possession.

The affidavit must state that the property is wrongfully detained by the
adverse party, alleging therein the cause of the detention.

The affidavit must state that the property has not been distrained or taken
for tax assessment or a fine pursuant to law, or seized under a writ of
execution or preliminary attachment, or otherwise placed in custodia legis. If
it has been seized, then the affidavit must state that it is exempt from such
seizure or custody.

Replevin cannot be available when the property is in custodia legis, is under

attachment or has been seized pursuant to law.


Contrast this principle with the rule that a property in custodia legis may be
attached.

The affidavit must state the actual market value of the property, and

The applicant must give a bond, executed to the adverse party and double
the value of the property (Sec. 2, Rule 60, Rules of Court).

Illustration (Bar 1976)

Pending final judgment in an action for recovery of personal property: (1)

May the plaintiff apply for immediate delivery of the property in question? (2)
In the affirmative, what requisites must the plaintiff comply with in order to
make this remedy available to him? (3) What is this ancillary remedy called?
(4) May this remedy be availed of in the Municipal Courts?

Suggested answer.

The plaintiff may apply for immediate delivery of the personal property
because under the Rules, said remedy may be applied for at the
commencement of the action or at any time before the answer of the
defendant (Sec. 1, Rule 60, Rules of Court). (2) Please refer to the
immediately preceding topic for the answer. (3) This ancillary remedy is
called replevin. (4) This remedy may be available in Municipal courts
provided the value of the property involved is within its jurisdiction.

Illustration (Bar 1996)

A sold five thousand piculs of sugar to B, payable on demand. Upon delivery

of the sugar to B, however, the latter did not pay its purchase price. After the

77
lapse of some time from the date of delivery of the sugar to B, A brought an
action for the rescission of the contract of sale and as incident of this action,
asked for the manual delivery (replevin) of the sugar to him.

May the remedy of replevin prayed for by A be granted? Explain.

Suggested answer.

78
The remedy of replevin may be granted. The defendant may be deemed to
be wrongfully detaining the goods from the plaintiff. Upon the filing of the
requisite affidavit and bond, the writ of replevin may be granted (Sec. 2, Rule
60, Rules of Court).

II. Undertaking of the replevin bond

The bond which is double the value of the property involved is for the
payment to the adverse party of such sum as he may recover from the
applicant in the action (Sec. 2, Rule 60, Rules of Court).

III. Order of the court and duty of sheriff

When the court approves the application, the court shall issue an order and
the corresponding writ of replevin describing the property alleged to be
wrongfully detained. This order shall require the sheriff to take the property
into his custody (Sec. 3, Rule 60, Rules of Court).

Upon the receipt of the court order, the sheriff must (a) serve a copy of the
order on the adverse party, together with a copy of the application, affidavit
and bond; and (b) take custody of the property (Sec. 4, Rule 60, Rules of
Court).

After the sheriff has taken custody of the property, he must keep it in a
secure place (Sec. 4, Rule 60, Rules of Court).

Within five (5) days From the taking of the property, the sheriff shall wait for
the move of the adverse party. If the latter does not object to the sufficiency
of the bond after said period or performs acts to effect the return to him of
the property taken by the sheriff, the property shall be delivered to the
applicant (Sec. 6, Rule 60, Rules of Court).

IV. How adverse party can seek the return of the property

If within five (5) days from the taking of the property by the sheriff, the
adverse party decides to have the property back, he may require the return
thereof by (a) filing with the court where the action is pending a bond (called
a redelivery bond) executed to the applicant, in double the value of the
property conditioned upon the payment of such sum as may be recovered
against the adverse party, and (b) by serving a copy of such bond on the
applicant (Sec. 5, Rule 60, Rules of Court).

If the bond is sufficient and in the proper form, the adverse party gets the
property back (Sees. 5, 6, Rule 60, Rules of Court).

Where the adverse party did not object to the other party's bond nor posted
a redelivery bond to recover the possession of the property taken under the

79
writ of replevin, the sheriff is under obligation to deliver the property to the
applicant.

V. Replevin distinguished from preliminary attachment

Prelimiinary
Replevin attachment
1. The purpose is to 1. The purpose is
recover not to
personal property recov propert
capable of er any y but
manual delivery simply to have the
from the property
put in the custody
defendant. of the
court to secure the
satisfaction of the
judgment

80
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4

82
 that may be
rendered in
favor of the plaintiff
at some
future time.
proper the property does
2. the ty either 2. not
belongs to the belong to the plaintiff
plaintiff' or but to
one over which the
plaintiff' the defendant.
has a right of
possession.
3. can be availed of 3. can be availed of
only even if
when the defendant the property is in
is in the
constructiv custody of third
actual or e persons.
possess person
ion of the al
propert
y.
4. extends only to 4. extends to all
personal kinds of
property manua property, real or
capable of l personal or
delivery even incorporeal
. property.
5. may be availed of 5. To be availed of
without the party
showing that the applying for a
property is writ of
being concealed or preliminary
disposed attachment need
of to the prejudice to show that the
of the property is
plaintiff being removed,
. concealed or
disposed of.
Property custodi Preliminary
6. under a 6. attachment
legis cannot be the can be availed of
object of even if the
replevin property is in custodia
. legis.

V. "Support Pendente Lite" (Rule 61)

83
Support pendente lite is an amount of support provi-sionally fixed by the
court in favor of the person or persons entitled thereto during the pendency
of an action for support Here, the main action is for support and support
pendente lite is the provisional remedy.

In one case, temporary support was granted in an action for habeas corpus
filed by the mother in behalf of a minor child against the father, where the
father has recognized the child as his and has not been given support by the
father pending the fixing the amount of support in another action for support.

Support pendente lite may be granted in rape cases for the offspring of the
accused as a consequence of the rape (Sec. 6, Rule 61).

Support pendente lite may hence, be availed of in either of two instances:

In an action for support; or

In a criminal action where civil liability includes support for the offspring
provided the civil aspect thereof has not been waived, reserved or instituted
prior to its filing (Sec. 6, Rule 61, Rules of Court).

Illustration (Bar 2001)

Modesto was accused of seduction by Virginia, a poor, unemployed young

girl, who has a child by Modesto. Virginia was in dire need of pecuniary
assistance to keep her child, not to say of herself, alive. The criminal case is
still pending in court and although the civil liability aspect of the crime has
not been waived or reserved for a separate civil action, the trial for the case
was foreseen to take two long years because of the heavily clogged court
calendar before the judgment may be rendered.

84
If you were the lawyer of Virginia, what action should you take to help
Virginia in the meantime especially with the problem of feeding the child?

Suggested answer:

If I were the lawyer of Virginia, I would apply for support pendente lite in
accordance with Sec. 6 of Rule 61 which provides that in a criminal action
where civil liability includes support for the offspring support pendente lite
may be obtained provided the civil aspect thereof has not been waived,
reserved or instituted prior to its filing (Sec. 6, Rule 61, Rules of Court).

Illustration (Bar 1999)

Before the RTC, A was charged with rape of his 16-year old daughter. During
the pendency of the case, the daughter gave birth to a child allegedly as a
consequence of the rape. Thereafter she asked the accused to support the
child, and when he refused, the former filed a petition for support pendente
lite. The accused however, insists that he cannot be made to give much
support arguing that there are yet no findings as to his guilt. Would you
agree with the trial court if it denied the application for support pendente
lite?

Suggested answer:

I would not agree with the trial court. The remedy is available in a criminal
action for rape and may be granted where the civil liability includes support
for the offspring and the civil aspect has not been waived, reserved or
instituted prior to its filing (Sec. 6, Rule 61, Rules of Court).

I. Procedure for application for support "pendente lite"

l. The application for support pendente lite may be filed at

the commencement of the action, or (b) at anytime prior to the judgment or

final order (Sec. 1, Rule 61, Rules of Court).

2.The application must be verified, stating the grounds for the claim and the
financial conditions of both parties. It shall be accompanied by affidavits,
depositions or other authentic documents in support thereof (Sec. 1, Rule 61,
Rules of Court).

It has been ruled that if the right to support is put in issue in the pleadings or
the fact from which the right to support arises has not been established, the
court cannot grant support pendente lite.

The adverse party shall be asked to comment on the application within five
(5) days from service upon him of a copy of the application and supporting
documents to it. This comment shall be verified (Sec. 2, Rule 61, Rules of
Court).

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The application shall be set for hearing and a hearing shall be conducted
(Sec. 3, Rule 61, Rules of Court).

If the application is granted, the court shall issue an order where it shall fix
the amount of money to be provisionally paid as support. If the application is
denied, the principal case shall be tried and decided as early as possible
(Sec. 4, Rule 61, Rules of Court).

The amount fixed in the order is only provisional. It is not final in character
and can be modified depending on the

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changing conditions affecting the ability of the obligor to pay the amount
fixed for support.

Illustration (Bar 1981)

"VX" and her son, Mario, are plaintiffs in a case against "WX" for support. A
month after the filing of her complaint, plaintiffs asked the Court for support
pendente lite. "WV opposes the petition on the ground that Mario is not his
son but the issue of "V)C" as a result of an adulterous relationship. "WX"asks
that he be given an opportunity to prove his defense. The court, ruling that
this defense is a matter of the main case, denies "WX" the opportunity to
prove his defense at that stage of the case and grants support pendente lite.

Is the granting of such support pendente lite correct or not? Give your
reasons.

Suggested answer:

The granting of support pendente lite without a hearing is not correct. Under
the Rules, the application shall be set for hearing and a hearing shall be
conducted (Sec. 3, Rule 61, Rules of Court).

II. Enforcement of the order

The adverse party has to comply with the order to give support pendente lite.
If he does not, an order of execution shall be issued by the court either motu
proprio or upon motion. He may likewise be held liable for contempt (Sec. 5,
Rule 61, Rules of Court).

III. Restitution

When the judgment finds that the person giving support is not liable
therefore, the court shall order the recipient to make a restitution of what
has been received with legal interest from the date of actual payment.
Should the recipient fail to do so, the person who gave the support may file
an action against the person legally obliged to give such support (Sec. 7,
Rule 61, Rules of Court).

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