Provisional Remedies
Provisional Remedies
Provisional Remedies cover the following: attachment? Yes. The judgment is not yet final.
1. Rule 57: Preliminary Attachment;
2. Rule 58: Preliminary Injunction; What if appeal is not filed? Not anymore. Because judgment is deemed
3. Rule 59: Receivership; entered at the lapse of the period to appeal.
4. Rule 60: Replevin; and
5. Rule 61: Support Pendente Lite When is action deemed commenced? At the filing of the complaint and
payment of the docket fees.
“Provisional”: these remedies are said to be “provisional” because they are
dependent or contingent upon a principal action and cannot exist in PURPOSE:
themselves. 1. To secure satisfaction of a favourable judgment;
2. To force defendant to come to the negotiating table – since property
As such, if there is no cause of action for the principal action, the provisional cannot be touched once placed under custodia legis;
remedy applied for dies together with it, including corollary actions. 3. For the court to acquire jurisdiction over the res/subject matter –
particularly in actions in rem or quasi in rem.
In Sps. Plaza vs. Lustiva, the Court held that upon the dismissal of the main
action, the the writ of preliminary injunction is deemed lifted notwithstanding 1. GROUNDS
any appeal therefrom.
Section 1. Grounds upon which attachment may issue. — At the
However, in Chemphil Export & Import Corporation v. CA, SC held that a writ commencement of the action or at any time before entry of judgment, a
of attachment is not extinguished by the execution of a compromise plaintiff or any proper party may have the property of the adverse party
agreement between the parties, where the same has not been executed or attached as security for the satisfaction of any judgment that may be
the winning party has not been fully paid yet. The parties to the compromise recovered in the following cases:
agreement should not be deprived of the protection provided by an
attachment lien especially in an instance where one reneges on his obligations (a) In an action for the recovery of a specified amount of money or
under the agreement. 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 has jurisdiction to issue? The court having jurisdiction over the who is about to depart from the Philippines with intent to defraud his
principal case. creditors;
(b) In an action for money or property embezzled or fraudulently
The SC has no original jurisdiction over a principal action for injunction. misapplied or converted to his own use by a public officer, or an officer of
However, if the principal action is with the SC, it may issue a writ of a corporation, or an attorney, factor, broker, agent, or clerk, in the course
Preliminary Injunction. of his employment as such, or by any other person in a fiduciary capacity,
or for a willful violation of duty;
Support: is within the jurisdiction of the RTC since the determination of the (c) In an action to recover the possession of property unjustly or
liability to give support is not capable of pecuniary estimation. However, if a fraudulently taken, detained or converted, when the property, or any part
criminal complaint is instituted (say, for Seduction) which falls under the thereof, has been concealed, removed, or disposed of to prevent its being
jurisdiction of the MTC, and since the civil aspect is deemed instituted in the found or taken by the applicant or an authorized person;
criminal action (Rule 111, Sec. 1), the MTC may grant the provisional remedy (d) In an action against a party who has been guilty of a fraud in
of support pendente lite. contracting the debt or incurring the obligation upon which the action is
brought, or in the performance thereof;
A party may avail of provisional remedies even in special civil (e) In an action against a party who has removed or disposed of his
actions. A party may file a petition for a special civil action and pray for the property, or is about to do so, with intent to defraud his creditors; or
grant of a provisional remedy. (f) In an action against a party who does not reside and is not found in
the Philippines, or on whom summons may be served by publication.
Fundamental Requirements common to all:
1. Affidavit which must state facts that constitute the grounds for the grant (a) to (c) above, are kinds of action to recover; while (d) to (f) are
of the provisional remedy; dependent on the kinds of defendants.
2. Bond – which may answer for the judgment (in case of preliminary
attachment) or damages (other provisional remedies) Par. (d): It must be shown that the debtor in contracting the debt or incurring
the obligation intended to defraud the creditor. The fraud must relate to the
Except: in case of Support Pendente Lite. It would be contrary to the very execution of the agreement and must have been the reason which induced
nature of this provisional remedy which seeks for restitution or the other party into giving consent which he would not have otherwise given.
reimbursement, to require the applicant to file a bond. To constitute a ground for attachment in Section 1 (d), Rule 57 of the Rules
of Court, fraud should be committed upon contracting the obligation sued
Ex-parte issuance of the writ: Generally not allowed, there must always upon. A debt is fraudulently contracted if at the time of contracting it the
be notice and hearing. Except: in preliminary attachment where writ may be debtor has a preconceived plan or intention not to pay, as it is in this case.
applied for and granted without notice and hearing. Except still, however, that Fraud is a state of mind and need not be proved by direct evidence but may
summons must be served on the adverse party prior to or contemporaneous be inferred from the circumstances attendant in each case. (Liberty Insurance
to the implementation of the writ. Corporation v. Court of Appeals)
A. RULE 57: PRELIMIARY ATTACHMENT General and sweeping allegations of fraud is NOT a sufficient basis
for the issuance of the writ: the applicant must sufficiently show the
PRINCIPAL ACTION: recovery and covers either real or personal property. factual circumstances of the alleged fraud because fraudulent intent cannot
be inferred from the debtor's mere non-payment of the debt or failure to
WHEN MAY BE AVAILED: Under Sec. 1, “at the commencement of the comply with his obligation.
action or at any time before final judgment.” By “final judgment” means entry
thereof. If the applicant has not shown any specific act or deed to support the
allegation that respondent is guilty of fraud, the writ shall not issue.
What if a petition for review is filed, can a party still apply for preliminary
Cesar Nickolai F. Soriano Jr.
1 Arellano University School of Law 2011-0303
REMEDIAL LAW 2: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL and LECTURES OF ATTY. TRANQUIL
The affidavit, being the foundation of the writ, must contain such particulars
as to how the fraud imputed to respondent was committed for the court to Jurisdiction over the defendant is necessary only on the third stage:
decide whether or not to issue the writ. (Alejandro Ng Wee vs. Tankiansee) For the initial two stages, it is not necessary that jurisdiction over the person
of the defendant be first obtained. However, once the implementation of the
2. REQUIREMENTS writ commences, the court must have acquired jurisdiction over the defendant
for without such jurisdiction, the court has no power and authority to act in
Section 3. Affidavit and bond required. — An order of attachment any manner against the defendant. Any order issuing from the Court will not
shall be granted only when it appears by the affidavit of the applicant, or bind the defendant. (Mangila vs. CA, see also Torres vs. Satsatin)
of some other person who personally knows the facts, that a sufficient
cause of action exists, that the case is one of those mentioned in section Subsequent service of summons does not cure the defect in the
1 hereof, that there is no other sufficient security for the claim sought to implementation of the writ: The alias summons belatedly served on
be enforced by the action, and that the amount due to the applicant, or petitioner cannot be deemed to have cured the fatal defect in the enforcement
the value of the property the possession of which he is entitled to recover, of the writ. The trial court cannot enforce such a coercive process on petitioner
is as much as the sum for which the order is granted above all legal without first obtaining jurisdiction over her person. The preliminary writ of
counterclaims. The affidavit, and the bond required by the next succeeding attachment must be served after or simultaneous with the service of summons
section, must be duly filed with the court before the order issues. on the defendant whether by personal service, substituted service or by
publication as warranted by the circumstances of the case. The subsequent
REQUIREMENTS: Aside from the required affidavit and bond: service of summons does not confer a retroactive acquisition of jurisdiction
a. There must be a valid cause of action; over her person because the law does not allow for retroactivity of a belated
b. There must be a valid ground (Sec. 1); service. (Mangila vs. CA)
c. The applicant has no other sufficient security;
d. The value or the claim to the property is at least equal to the prayer 4. DISCHARGE OF ATTACHMENT
above all counter-claims.
Section 12. Discharge of attachment upon giving counter-bond.
BOND: Every bond should be accompanied by a clearance from the Supreme — After a writ of attachment has been enforced, the party whose property
Court showing that the company concerned is qualified to transact business has been attached, or the person appearing on his behalf, may move for
which is valid only for thirty (30) days from the date of its issuance. (Torres the discharge of the attachment wholly or in part on the security given.
vs. Satsatin) The court shall, after due notice and hearing, order the discharge of the
attachment if the movant makes a cash deposit, or files a counter-bond
3. MANNER OF ATTACHING executed to the attaching party with the clerk of the court where the
application is made, in an amount equal to that fixed by the court in the
Section 5. Manner of attaching property. — The sheriff enforcing the order of attachment, exclusive of costs. But if the attachment is sought to
writ shall without delay and with all reasonable diligence attach, to await be discharged with respect to a particular property, the counter-bond shall
judgment and execution in the action, only so much of the property in the be equal to the value of that property as determined by the court. In either
Philippines of the party against whom the writ is issued, not exempt from case, the cash deposit or the counter-bond shall secure the payment of
execution, as may be sufficient to satisfy the applicant's demand, unless any judgment that the attaching party may recover in the action. A notice
the former makes a deposit with the court from which the writ is issued, of the deposit shall forthwith be served on the attaching party. Upon the
or gives a counter-bond executed to the applicant, in an amount equal to discharge of an attachment in accordance with the provisions of this
the bond fixed by the court in the order of attachment or to the value of section, the property attached, or the proceeds of any sale thereof, shall
the property to be attached, exclusive of costs. No levy on attachment be delivered to the party making the deposit or giving the counter-bond,
pursuant to the writ issued under section 2 hereof shall be enforced unless or to the person appearing on his behalf, the deposit or counter-bond
it is preceded, or contemporaneously accompanied, by service of aforesaid standing in place of the property so released. Should such
summons, together with a copy of the complaint, the application for counter-bond for any reason be found to be or become insufficient, and
attachment the applicant's affidavit and bond, and the order and writ of the party furnishing the same fail to file an additional counter-bond, the
attachment, on the defendant within the Philippines. attaching party may apply for a new order of attachment.
The requirement of prior or contemporaneous service of summons shall COUNTER-BOND: answers for the judgment (return/value of the property
not apply where the summons could not be served personally or by plus expenses and damages). Unline in other provisional remedies where the
substituted service despite diligent efforts, or the defendant is a resident counter-bond answers for damages.
of the Philippines temporarily absent therefrom, or the defendant is a non-
resident of the Philippines, or the action is one in rem or quasi in rem. Filing a counter-bond is not a waiver of the right to claim damages
for wrongful attachment: The attachment debtor cannot be deemed to
Jurisdiction over the defendant; GENERAL RULE: No levy on have waived any defect in the issuance of the attachment writ by simply
attachment pursuant to the writ shall be enforced unless it is preceded, or availing himself of one way of discharging the attachment writ, instead of the
contemporaneously accompanied, by service of summons, together with other. Moreover, the filing of a counterbond is a speedier way of discharging
a copy of the complaint, the application for attachment the applicant's affidavit the attachment writ maliciously sought out by the attaching party creditor
and bond, and the order and writ of attachment. instead of the other way, which in most instances like in the present case,
would require presentation of evidence in a fullblown trial on the merits and
EXCEPTIONS: cannot easily be settled in a pending incident of the case. (Wenceslao vs.
a. When the summons cannot be served personally or by substituted Readycon Trading and Construction Corp.)
service despite diligent efforts; or
b. The defendant is a resident of the Philippines temporarily absent Compromise agreement will not discharge the writ of attachment:
therefrom; or In Chemphil Export & Import Corporation v. CA, the Court pronounced that a
c. The defendant is a non-resident of the Philippines; or writ of attachment is not extinguished by the execution of a compromise
d. The action is one in rem or quasi in rem. agreement between the parties. The parties to the compromise agreement
should not be deprived of the protection provided by an attachment lien
THREE STAGES OF THE GRANT OF PROVISIONAL REMEDY OF especially in an instance where one reneges on his obligations under the
ATTACHMENT: agreement, as in the case at bench, where Antonio Garcia failed to hold up
a. The court issues the order granting the application; his own end of the deal, so to speak.
b. The writ of attachment issues pursuant to the order granting the writ;
c. The writ is implemented. If we were to rule otherwise, we would in effect create a back door by which
Cesar Nickolai F. Soriano Jr.
2 Arellano University School of Law 2011-0303
REMEDIAL LAW 2: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL and LECTURES OF ATTY. TRANQUIL
a debtor can easily escape his creditors. Consequently, we would be faced the bond unless the action therefor is filed within one hundred twenty
with an anomalous situation where a debtor, in order to buy time to dispose (120) days from the date of the filing of the bond.
of his properties, would enter into a compromise agreement he has no
intention of honoring in the first place. The purpose of the provisional remedy The sheriff shall not be liable for damages for the taking or keeping of such
of attachment would thus be lost. It would become, in analogy, a declawed property to any such third-party claimant, if such bond shall be filed.
and toothless tiger. (Lim vs. Lazaro) Nothing herein contained shall prevent such claimant or any third person
from vindicating his claim to the property, or prevent the attaching party
Section 13. Discharge of attachment on other grounds. — The from claiming damages against a third-party claimant who filed a frivolous
party whose property has been ordered attached may file a motion with or plainly spurious claim, in the same or a separate action.
the court in which he action is pending, before or after levy or even after
the release of the attached property, for an order to set aside or discharge When the writ of attachment is issued in favor of the Republic of the
the attachment on the ground that the same was improperly or irregularly Philippines, or any officer duly representing it, the filing of such bond shall
issued or enforced, or that the bond is insufficient. If the attachment is not be required, and in case the sheriff is sued for damages as a result of
excessive, the discharge shall be limited to the excess. If the motion be the attachment, he shall be represented by the Solicitor General, and if
made on affidavits on the part of the movant but not otherwise, the held liable therefor, the actual damages adjudged by the court shall be
attaching party may oppose the motion by counter-affidavits or other paid by the National Treasurer out of the funds to be appropriated for the
evidence in addition to that on which the attachment was made. After due purpose.
notice and hearing, the court shall order the setting aside or the
corresponding discharge of the attachment if it appears that it was NOT 3RD PARTY COMPLAINT: unline in 3rd-party complaints where the 3rd
improperly or irregularly issued or enforced, or that the bond is insufficient, party is not involved but brought into the action, the 3rd party in a 3rd party
or that the attachment is excessive, and the defect is not cured forthwith. claim joins.
Discharge by MOTION: on the ground: AFFIDAVIT OF 3RD PARTY CLAIM: given to the sheriff having custody of
1. That the writ was improperly or irregularly issued or enforced; the property attached. Upon such affidavit, the sheriff shall not be bound to
a. There was no proper ground; keep the property and he will deliver it to the 3rd party unless another bond
b. No jurisdiction of the court over the res; is filed by the attaching creditor to indemnify the 3rd party claimant.
c. There was no bond or affidavit.
2. That the bond is insufficient; 6. CLAIM FOR DAMAGES
3. The bond is excessive – only as to the excess.
Section 20. Claim for damages on account of improper, irregular
When: unlike a counter-bond which can only be filed after the writ has been or excessive attachment. — An application for damages on account of
enforced, a motion to discharge the writ may be filed before or after levy or improper, irregular or excessive attachment must be filed before the trial
even after the release of the attached property. or before appeal is perfected or before the judgment becomes executory,
with due notice to the attaching party and his surety or sureties setting
Supervening events arising after the issuance of the writ cannot be forth the facts showing his right to damages and the amount thereof. Such
valid grounds for discharge by motion: the grounds must pertain to the damages may be awarded only after proper hearing and shall be included
ISSUANCE of the writ of attachments and must attack such issuance as in the judgment on the main case.
improper or irregular since the rule contemplates that the defect must be in
the very issuance of the writ of attachment. Supervening events which may If the judgment of the appellate court be favorable to the party against
or may not justify the discharge of the writ are not within the purview of this whom the attachment was issued he must claim damages sustained during
particular rule. (Chuidian vs. Sandiganbayan) the pendency of the appeal by filing an application in the appellate court,
with notice to the party in whose favor the attachment was issued or his
When the writ of attachment is issued upon a ground which is at the surety or sureties, before the judgment of the appellate court becomes
same time the applicant's cause of action, the only other way the executory. The appellate court may allow the application to be heard and
writ can be lifted or dissolved is by a counterbond: when the decided by the trial court.
preliminary attachment is issued upon a ground which is at the same time the
applicant's cause of action, the defendant is not allowed to file a motion to Nothing herein contained shall prevent the party against whom the
dissolve the attachment under Section 13 of Rule 57 by offering to show the attachment was issued from recovering in the same action the damages
falsity of the factual averments in the plaintiff's application and affidavits on awarded to him from any property of the attaching party not exempt from
which the writ was based – and consequently that the writ based thereon had execution should the bond or deposit given by the latter be insufficient or
been improperly or irregularly issued – the reason being that the hearing on fail to fully satisfy the award.
such a motion for dissolution of the writ would be tantamount to a trial of the
merits of the action. In other words, the merits of the action would be Recovery of damages on the bond; where applicable:
ventilated at a mere hearing of a motion, instead of at the regular trial. 1. Attachment;
(Chuidian vs. Sandiganbayan) 2. Preliminary Injunction;
3. Replevin;
5. THIRD PARTY CLAIM 4. Receivership
Section 14. Proceedings where property claimed by third person. In Support Pendente Lite, there is no bond. As such, this provision does not
— If the property attached is claimed by any person other than the party apply. However, there is reimbursement or restitution in such provisional
against whom attachment had been issued or his agent, and such person remedy.
makes an affidavit of his title thereto, or right to the possession thereof,
stating the grounds of such right or title, and serves such affidavit upon Attachment: the adverse party may recover if the attachment was improper,
the sheriff while the latter has possession of the attached property, and a irregular or excessive.
copy thereof upon the attaching party, the sheriff shall not be bound to
keep the property under attachment, unless the attaching party or his What must be established: actual loss and injury, an amount must be
agent, on demand of the sheriff, shall file a bond approved by the court to given and proven as a fact. In particular, if the claim of damages covers
indemnify the third-party claimant in a sum not less than the value of the unrealized profits, the same must be supported by independent evidence.
property levied upon. In case of disagreement as to such value, the same
shall be decided by the court issuing the writ of attachment. No claim for Bad faith is not required to be proven. If the same is proven that the
damages for the taking or keeping of the property may be enforced against application is malicious, there can be claim for moral and exemplary damages.
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3 Arellano University School of Law 2011-0303
REMEDIAL LAW 2: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL and LECTURES OF ATTY. TRANQUIL
the parties before their claims can be thoroughly investigated and advisedly
Attorney’s Fees: as a rule, only if there is moral and exemplary damages. adjudicated. It is to be resorted to only when there is a pressing necessity to
However, when a party incurred expenses to lift a wrongfully issued writ of avoid injurious consequences which cannot be remedied under any standard
attachment, the same may be recovered. of compensation. (Idolor vs. CA)
a. Prohibitory Injunction – which seeks to maintain status quo by requiring The provisional remedy of preliminary injunction may only be resorted
the adverse party to refrain from a particular act or acts; to when there is a pressing necessity to avoid injurious consequences
b. Mandatory Injunction – which seeks to return to the status quo by which cannot be remedied under any standard of compensation.
requiring the performance of a particular act or acts.
Foreclosure of mortgaged property is not an irreparable
Example: If Meralco will cut the electric connection for failure to pay the bill, damage:
the remedy of a party is to file for a prohibitory injunction. If there is no 1. Any damage that the mortgagor may suffer in case of foreclosure
electricity, a mandatory injunction may be had to compel Meralco to fix the of the mortgaged properties will be purely monetary and
connection. compensable by an appropriate judgment in a proper case against
the mortgagee.
PRELIMINARY INJUNCTION vs. PROHIBITION 2. The mortgagor will not be deprived outrightly of his property, given
the right of redemption granted to them under the law.
PRELIMINARY INJUNCTION PROHIBITION 3. Moreover, in extrajudicial foreclosures, mortgagors have the right
May be the main action or a Principal and original action to receive any surplus in the selling price. (Solid Builders, Inc. vs.
provisional remedy to an action China Banking Corporation)
Directed only to the parties to the Aside from the party, likewise
case directed to the act of the officer, Lastly, under A.M. No. 99-10-05-0, Re: Procedure in Extrajudicial or
tribunal, corporation, board or Judicial Foreclosure of Real Estate Mortgages, a TRO or Preliminary
person Injunction cannot be issued against an extrajudicial foreclosure on the
Injunction does not involve the There is grave abuse of discretion following allegations:
jurisdiction of the court amounting to lack or excess of 1. the loan secured by the mortgage has been paid or is not delinquent
jurisdiction unless the application is verified and supported by evidence of
payment;
PRELIMINARY MANDATORY INJUNCTION VS. MANDAMUS 2. the interest on the loan is unconscionable, unless the debtor pays
the mortgagee at least twelve percent per annum interest on the
principal obligation as stated in the application for foreclosure sale,
PRELIMINARY INJUNCTION MANDAMUS
which shall be updated monthly while the case is pending;
May be the main action or a Principal and original action
provisional remedy to an action
In the event that a TRO or a Writ of Preliminary Injunction is issued, the
Directed only to the parties to the Aside from the party, likewise
disposition of the case shall be speedily resolved. To this end, the court
case directed to the act of the officer,
concerned shall submit to the Supreme Court, through the Office of the
tribunal, corporation, board or
Court Administrator, quarterly reports on the progress of the cases
person
involving ten million pesos and above.
Covers acts which are not purely Covers an act which is a ministerial
ministerial and the other party may duty of the officer, tribunal,
Absence of any of the requisites, issuance of injunction is improper:
not normally want to do corporation, board or person.
In the absence of any requisite, and where facts are shown to be wanting in
There is no legal obligation on the There is a law that requires the bringing the matter within the conditions for its issuance, the ancillary writ of
part of the other party to perform person, officer, tribunal, injunction must be struck down for having been rendered in grave abuse of
the act corporation, board or person to discretion. (Solid Builders, Inc. vs. China Banking Corporation)
perform.
Injunction does not cover contingent or future rights; the existence of
Purpose of the Writ of Preliminary Injunction: The controlling reason a right violated, is a prerequisite to the granting of an injunction. Injunction
for the existence of the judicial power to issue the writ is that the court may is not designed to protect contingent or future rights. Failure to establish
thereby prevent a threatened or continuous irremediable injury to some of either the existence of a clear and positive right which should be judicially
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4 Arellano University School of Law 2011-0303
REMEDIAL LAW 2: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL and LECTURES OF ATTY. TRANQUIL
protected through the writ of injunction or that the defendant has committed
or has attempted to commit any act which has endangered or tends to However, where the summons could not be served personally or by
endanger the existence of said right, is a sufficient ground for denying the substituted service despite diligent efforts, or the adverse party is a
injunction. (Idolor vs. CA) resident of the Philippines temporarily absent therefrom or is a nonresident
thereof, the requirement of prior or contemporaneous service of summons
Injunction is the strong arm of equity, the applicant therefor must shall not apply.
come to court with clean hands: Since injunction is the strong arm of
equity, he who must apply for it must come with equity or with clean (d) The application for a temporary restraining order shall thereafter be
hands. This is so because among the maxims of equity are (1) he who seeks acted upon only after all parties are heard in a summary hearing which
equity must do equity, and (2) he who comes into equity must come with shall be conducted within twenty-four (24) hours after the sheriff's return
clean hands. of service and/or the records are received by the branch selected by raffle
and to which the records shall be transmitted immediately.
Here, petitioners, having reneged on their agreement without any justifiable
reason, come to court with unclean hands. This Court may deny a litigant The injunction bond is intended to protect the adverse party against
relief if his conduct has been inequitable, unfair and dishonest as to the loss or damage by reason of the injunction only; not as security for
controversy in issue. (Jenosa vs. Delariarte, O.S.A) the judgment award: A preliminary injunction may be granted only when,
among other things, the applicant, not explicitly exempted, files with the court
Court of equal rank: cannot issue a TRO or preliminary injunction against where the action or proceeding is pending, a bond executed to the party or
a court of equal rank. person enjoined, in an amount to be fixed by the court, to the effect that the
applicant will pay such party or person all damages which he may sustain by
Dismissal of the main action discharges the writ: Upon the dismissal of reason of the injunction or temporary restraining order if the court should
the main action, the question of the non-issuance of a writ of preliminary finally decide that the applicant was not entitled thereto. Upon approval of
injunction automatically died with it. A writ of preliminary injunction is a the requisite bond, a writ of preliminary injunction shall be issued.
provisional remedy; it is auxiliary, an adjunct of, and subject to the
determination of the main action. It is deemed lifted upon the dismissal of the The injunction bond is intended as a security for damages in case it is finally
main case, any appeal therefrom notwithstanding. (Sps. Plaza vs. Lustiva) decided that the injunction ought not to have been granted. Its principal
purpose is to protect the enjoined party against loss or damage by reason of
2. GROUNDS the injunction, and the bond is usually conditioned accordingly. (Lagrosas vs.
Bristol-Myers Squibb)
Section 3. Grounds for issuance of preliminary injunction. — A
preliminary injunction may be granted when it is established: 4. NOTICE REQUIREMENT; PERIOD OF EFFECTIVITY
(a) That the applicant is entitled to the relief demanded, and the whole or Section 5. Preliminary injunction not granted without
part of such relief consists in restraining the commission or continuance of notice; exception. — No preliminary injunction shall be granted without
the act or acts complained of, or in requiring the performance of an act or hearing and prior notice to the party or person sought to be enjoined. If it
acts either for a limited period or perpetually; shall appear from facts shown by affidavits or by the verified application
(b) That the commission, continuance or non-performance of the act or that great or irreparable injury would result to the applicant before the
acts complained of during the litigation would probably work injustice to matter can be heard on notice, the court to which the application for
the applicant; or preliminary injunction was made, may issue a temporary restraining order
(c) That a party, court, agency or a person is doing, threatening, or is to be effective only for a period of twenty (20) days from service on the
attempting to do, or is procuring or suffering to be done some act or acts party or person sought to be enjoined, except as herein provided. Within
probably in violation of the rights of the applicant respecting the subject the said twenty-day period, the court must order said party or person to
of the action or proceeding, and tending to render the judgment show cause, at a specified time and place, why the injunction should not
ineffectual. be granted, determine within the same period whether or not the
preliminary injunction shall be granted, and accordingly issue the
3. REQUIREMENTS corresponding order. (Bar Matter No. 803, 17 February 1998)
Section 4. Verified application and bond for preliminary However, and subject to the provisions of the preceding sections, if the
injunction or temporary restraining order. — A preliminary injunction matter is of extreme urgency and the applicant will suffer grave injustice
or temporary restraining order may be granted only when: and irreparable injury, the executive judge of a multiple-sala court or the
presiding judge of a single sala court may issue ex parte a temporary
(a) The application in the action or proceeding is verified, and shows facts restraining order effective for only seventy-two (72) hours from issuance
entitling the applicant to the relief demanded; and but he shall immediately comply with the provisions of the next preceding
section as to service of summons and the documents to be served
(b) Unless exempted by the court the applicant files with the court where therewith. Thereafter, within the aforesaid seventy-two (72) hours, the
the action or proceeding is pending, a bond executed to the party or person judge before whom the case is pending shall conduct a summary hearing
enjoined, in an amount to be fixed by the court, to the effect that the to determine whether the temporary restraining order shall be extended
applicant will pay to such party or person all damages which he may until the application for preliminary injunction can be heard. In no case
sustain by reason of the injunction or temporary restraining order if the shall the total period of effectivity of the temporary restraining order
court should finally decide that the applicant was not entitled thereto. Upon exceed twenty (20) days, including the original seventy-two hours
approval of the requisite bond, a writ of preliminary injunction shall be provided herein.
issued.
In the event that the application for preliminary injunction is denied or not
(c) When an application for a writ of preliminary injunction or a temporary resolved within the said period, the temporary restraining order is deemed,
restraining order is included in a complaint or any initiatory pleading, the automatically vacated. The effectivity of a temporary restraining order is
case, if filed in a multiple-sala court, shall be raffled only after notice to not extendible without need of any judicial declaration to that effect and
and in the presence of the adverse party or the person to be enjoined. In no court shall have authority to extend or renew the same on the same
any event, such notice shall be preceded, or contemporaneously ground for which it was issued.
accompanied, by service of summons, together with a copy of the
complaint or initiatory pleading and the applicant's affidavit and bond, However, if issued by the Court of Appeals or a member thereof, the
upon the adverse party in the Philippines. temporary restraining order shall be effective for sixty (60) days from
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service on the party or person sought to be enjoined. A restraining, order avoid multiplicity of suits;
issued by the Supreme Court or a member thereof shall be effective until 3. When double jeopardy is clearly apparent;
further orders. (5a) 4. The charges are manifestly false and motivated by lust for
vengeance;
REQUIREMENT OF NOTICE AND HEARING: unlike prior to amendment 5. When there is clearly no prima facie case against the accused and
of the Rule, a TRO, irrespective of kind, can be granted ex-parte under Sec. a motion to quash is filed with such ground.
5 of Rule 58. The TRO’s validity can be for 72 hours or 20 days. However, this f. Government infrastructure projects.
is still subject to the court’s discretion. Thus, the judge may still require
hearing prior to the issuance of the TRO. 5. DISSOLUTION:
The 72-hour TRO shall be issued if the judge finds that: Section 6. Grounds for objection to, or for motion of dissolution
1. The matter is of extreme urgency; and of, injunction or restraining order. — The application for injunction or
2. The applicant will suffer grave injustice and irreparable injury. restraining order may be denied, upon a showing of its insufficiency. The
injunction or restraining order may also be denied, or, if granted, may be
Who may issue: dissolved, on other grounds upon affidavits of the party or person
1. Executive judge of a multi-sala court; or enjoined, which may be opposed by the applicant also by affidavits. It may
2. Presiding judge of a single sala court. further be denied, or if granted, may be dissolved, if it appears after
hearing that although the applicant is entitled to the injunction or
Summons: must be served to the adverse party prior to or contemporaneous restraining order, the issuance or continuance thereof, as the case may
with the TRO. be, would cause irreparable damage to the party or person enjoined while
the applicant can be fully compensated for such damages as he may suffer,
EFFECTIVITY: The 72-hour TRO takes effect upon issuance. While the 20- and the former files a bond in an amount fixed by the court conditioned
day TRO takes effect upon receipt of notice. The court is prohibited from that he will pay all damages which the applicant may suffer by the denial
issuing a 20-day TRO after the grant of a 72-hour TRO. However, the 72-hour or the dissolution of the injunction or restraining order. If it appears that
TRO may be extendible to an aggregate period not to exceed 20 days, or for the extent of the preliminary injunction or restraining order granted is too
an additional 17 days. great, it may be modified. (6a)
TROs issued by the CA – 60 days. TROs issued by the SC – indefinite. GROUNDS FOR OPPOSITION OR DISSOLUTION OF INJUNCTION
OR TRO:
After the 72 hours it can no longer be extended: An already expired 1. Insiffuciency of the injunction;
TRO can no longer be extended. Beyond such time, the TRO automatically 2. Affidavits of a party showing that
expires, unless, before the expiration of the said period, he, supposedly in his a. Although the applicant is entitled thereto, the issuance or
capacity as presiding judge to whom the case was raffled, conducted the continuance thereof, as the case may be, would cause irreparable
required summary hearing in order to extend the TROs lifetime. Indubitably, damage to the party enjoined,
a 72-hour TRO, issued by an executive judge, is a separate and distinct TRO b. While the applicant can be fully compensated for such damages as
which can stand on its own, regardless of whether it is eventually extended he may suffer, and
or not. It is not a mere part of the 20-day TRO issued by a presiding judge to c. The applicant files a bond
whom the case is raffled. (Sps. Lago vs. Abul, Jr.)
6. DAMAGES
During the 20-day period of effectivity of the TRO: hearing is conducted
and the applicant presents evidence in what jurisprudence refers to as Section 8. Judgment to include damages against party and
“sampling of evidence” to properly present his side. Afterwhich, the sureties. — At the trial, the amount of damages to be awarded to either
application for writ of preliminary injunction is decided by the court. party, upon the bond of the adverse party, shall be claimed, ascertained,
and awarded under the same procedure prescribed in section 20 of Rule
Renewal or Extension of TRO: applies only under the Alternative Dispute 57.
Resolution Law, where the court can provide for additional 20 days of
effectivity of the TRO if the adverse party asks for time to file an answer. Malice or lack of good faith is not a condition sine qua non for liability
Under the ADR Law, it is called Temporary Order of Protection. to attach on the injunction bond: Malice or lack of good faith is not an
element of recovery on the bond. This must be so, because to require malice
HEARING REQUIREMENT: [W]henever an application for a TRO is filed, as a prerequisite would make the filing of a bond a useless formality. The
the court may act on the application only after all parties have been notified dissolution of the injunction, even if the injunction was obtained in good faith,
and heard in a summary hearing. In other words, a summary hearing may amounts to a determination that the injunction was wrongfully obtained and
not be dispensed with. (Gustilo vs. Real, Sr.) a right of action on the injunction bond immediately accrues. Thus, for the
purpose of recovery upon the injunction bond, the dissolution of the injunction
Sampling of Evidence: It must be remembered that a writ of preliminary because of petitioners main cause of action provides the actionable wrong for
injunction is generally based solely on initial and incomplete evidence. The the purpose of recovery upon the bond. (Aquino vs. Socorro citing Pacis vs.
evidence submitted during the hearing on an application for a writ of COMELEC)
preliminary injunction is not conclusive or complete for only a sampling is
needed to give the trial court an idea of the justification for the preliminary Extent of damages covered: Section 4(b), Rule 58 of the 1997 Revised
injunction pending the decision of the case on the merits. (Sps. Estares vs. Rules of Civil Procedure clearly provides that the injunction bond is answerable
CA) for all damages.
Injunction or TRO cannot be issued: Consequently, the bond may obligate the bondsmen to account to the
a. Cases arising from labor disputes under the Rules of the NLRC; defendant in the injunction suit for all damages, or costs and reasonable
b. RTC cannot issue injunction against intellectual property cases; counsels fees, incurred or sustained by the latter in case it is determined that
c. By any court against the Agrarian Reform Council; the injunction was wrongfully issued.
d. To restrain the collection of any national internal revenue taxes;
e. To restrain a criminal prosecution, EXCEPT: Attorneys fees, litigation costs, and costs of delay can be recovered from the
1. To afford adequate protection to the Constitutional rights of the injunction bond as long as it can be shown that said expenses were sustained
accused; by the party seeking recovery by reason of the writ of preliminary injunction,
2. When necessary for the orderly administration of justice or to which was later on determined as not to have been validly issued and that
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the party who applied for the said writ was not entitled thereto.
(a) When it appears from the verified application, and such other proof as
Even if the injunction was directed against the court and not to the party: he the court may require, that the party applying for the appointment of a
MeTC does not stand to suffer damages from the injunction because it has no receiver has an interest in the property or fund which is the subject of the
interest or stake in the Petition pending before it. Damage or loss is suffered action or proceeding, and that such property or fund is in danger of being
by the party whose right to pursue its case is suspended or delayed, which in lost, removed, or materially injured unless a receiver be appointed to
this case, is the petitioner. Upon issuance of the writ of injunction, it is the administer and preserve it;
petitioner who will stand to suffer damages for the delay in the principal case
because, had it not been for the injunction, the petitioner would not have (b) When it appears in an action by the mortgagee for the foreclosure of
incurred additional expenses for attending the separate hearings on the a mortgage that the property is in danger of being wasted or dissipated or
injunction, and the RTC can already decide the main case and make a prompt materially injured, and that its value is probably insufficient to discharge
determination of the respective rights of the parties therein. Hence, even if the mortgage debt, or that the parties have so stipulated in the contract
the preliminary injunction was directed against the MeTC and not against the of mortgage;
petitioner, it is the latter which has the right to recover from the injunction
bond the damages which it might have suffered by reason of the said (c) After judgment, to preserve the property during the pendency of an
injunction. (Limitless Potentials, Inc. vs. CA) appeal, or to dispose of it according to the judgment, or to aid execution
when the execution has been returned unsatisfied or the judgment obligor
7. FINAL INJUNCTION refuses to apply his property in satisfaction of the judgment, or otherwise
to carry the judgment into effect;
Section 9. When final injunction granted. — If after the trial of the
action it appears that the applicant is entitled to have the act or acts (d) Whenever in other cases it appears that the appointment of a receiver
complained of permanently enjoined the court shall grant a final injunction is the most convenient and feasible means of preserving, administering, or
perpetually restraining the party or person enjoined from the commission disposing of the property in litigation.
or continuance of the act or acts of confirming the preliminary mandatory
injunction. (10a) During the pendency of an appeal, the appellate court may allow an
application for the appointment of a receiver to be filed in and decided by
C. RULE 59: RECEIVERSHIP the court of origin and the receiver appointed to be subject to the control
of said court.
PRINCIPAL ACTION: is receivership. The provisional remedy is the
appointment of a receiver. A Receiver may be appointed in criminal, civil and administrative
cases, with different causes of action, imultaneously; the grant of
PURPOSE: is for the preservation, administration, disposition of property. receivership in one case will not amount to res judicata in another:
The various suits Fidela initiated against Evelina and Aida involved different
If the purpose of the suit is to recover a deprived share in the subject causes of action and sought different reliefs. The present civil action that she
property, receivership is not proper: Rule 59, Sec. 1(b) requires that the filed with the RTC sought to recover possession of the property based on
property or fund is in danger of being lost, removed or materially injured, Evelina and Aidas failure to account for its fruits. The estafa cases she filed
necessitating its protection or preservation. Its object is the prevention of with the RTC accused the two of misappropriating and converting her share
imminent danger to the property. If the action does not require such in the harvests for their own benefit. Her complaint for dispossession under
protection or preservation, the remedy is not receivership. Republic Act 8048 with the DARAB sought to dispossess the two for allegedly
cutting coconut trees without the prior authority of Fidela or of the Philippine
In this case, the applicant’s main gripe is that she was deprived of her share Coconut Authority.
of the land’s produce. She does not claim that the land or its productive
capacity would disappear or be wasted if not entrusted to a receiver. Nor does The above cases are similar only in that they involved the same parties and
she claim that the land has been materially injured, necessitating its protection Fidela sought the placing of the properties under receivership in all of
and preservation. (Chavez vs. CA) them. But receivership is not an action. It is but an auxiliary remedy, a mere
incident of the suit to help achieve its purpose. Consequently, it cannot be
BONDS: two bonds are required: said that the grant of receivership in one case will amount to res judicata on
a. One from the applicant to answer for damages that may arise from the the merits of the other cases. The grant or denial of this provisional remedy
application. will still depend on the need for it in the particular action. (Chavez vs. CA)
b. One from the receiver to answer for damages that may result from the
acts of the receiver. 2. REQUIREMENT
The RTC has no jurisdiction to place BANKS under receivership: it is Section 2. Bond on appointment of receiver. — Before issuing the
the Monetary Board that exercises exclusive jurisdiction over proceedings for order appointing a receiver the court shall require the applicant to file a
receivership of banks. bond executed to the party against whom the application is presented, in
an amount to be fixed by the court, to the effect that the applicant will pay
Section 30 of the New Central Bank Act provides that the appointment of a such party all damages he may sustain by reason of the appointment of
receiver under this section shall be vested exclusively with the Monetary such receiver in case the applicant shall have procured such appointment
Board. The term exclusively connotes that only the Monetary Board can without sufficient cause; and the court may, in its discretion, at any time
resolve the issue of whether a bank is to be placed under receivership and, after the appointment, require an additional bond as further security for
upon an affirmative finding, it also has authority to appoint a receiver. This is such damages.
further affirmed by the fact that the law allows the Monetary Board to take
action summarily and without need for prior hearing. (Koruga vs. Arcenas) 3. DENIAL OR DISCHARGE
1. WHEN THE WRIT MAY ISSUE Section 3. Denial of application or discharge of receiver. — The
application may be denied, or the receiver discharged, when the adverse
Section 1. Appointment of receiver. — Upon a verified application, party files a bond executed to the applicant, in an amount to be fixed by
one or more receivers of the property subject of the action or proceeding the court, to the effect that such party will pay the applicant all damages
may be appointed by the court where the action is pending or by the Court he may suffer by reason of the acts, omissions, or other matters specified
of Appeals or by the Supreme Court, or a member thereof, in the following in the application as ground for such appointment. The receiver may also
cases: be discharged if it is shown that his appointment was obtained without
Cesar Nickolai F. Soriano Jr.
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REMEDIAL LAW 2: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL and LECTURES OF ATTY. TRANQUIL
sufficient cause. wrongfully distrained or taken, or who wrongfully detains such goods or
chattels. It is designed to permit one having right to possession to recover
Possting of counterbond alone is insufficient to discharge: The rule property in specie from one who has wrongfully taken or detained the
states that the application may be denied or the receiver discharged. In property.
statutory construction, the word may has always been construed as
permissive. If the intent is to make it mandatory or ministerial for the trial The term may refer either to the action itself, for the recovery of --, or to the
court to order the recall of the receiver upon the offer to post a counterbond, provisional remedy traditionally associated with it, by which possession of the
then the court should have used the word shall. Thus, the trial court has to property may be obtained by the plaintiff and retained during the pendency
consider the posting of the counterbond in addition to other reasons of the action. (Smart Communications, Inc. vs. Astorga)
presented by the offeror why the receivership has to be set aside. (Vivares
vs. Reyes) PRINCIPAL ACTION: is recovery of possession of personal property.
4. POWER OF RECEIVER Recovery of the employer of the vehicle given under a car plan to a
dismissed employee is not within the jurisdiction of the Labor Arbiter
Section 4. Oath and bond of receiver. — Before entering upon his duties, but with the RTC: The RTC rightfully assumed jurisdiction over the suit and
the receiver shall be sworn to perform them faithfully, and shall file a bond, acted well within its discretion in denying Astorga’s motion to dismiss. SMART’s
executed to such person and in such sum as the court may direct, to the demand for payment of the market value of the car or, in the alternative, the
effect that he will faithfully discharge his duties in the action or proceeding surrender of the car, is not a labor, but a civil, dispute. It involves the
and obey the orders of the court. relationship of debtor and creditor rather than employee-employer
relations. As such, the dispute falls within the jurisdiction of the regular
5. GENERAL POWERS OF A RECEIVER courts.
Section 6. General powers of receiver. — Subject to the control of the The question of whether or not a party has the right of possession over the
court in which the action or proceeding is pending a receiver shall have property involved and if so, whether or not the adverse party has wrongfully
the power to bring and defend, in such capacity, actions in his own name; taken and detained said property as to require its return to plaintiff, is outside
to take and keep possession of the property in controversy; to receive the pale of competence of a labor tribunal and beyond the field of specialization
rents; to collect debts due to himself as receiver or to the fund, property, of Labor Arbiters.
estate, person, or corporation of which he is the receiver; to compound for
and compromise the same; to make transfers; to pay outstanding debts; The labor dispute involved is not intertwined with the issue in the Replevin
to divide the money and other property that shall remain among the Case. The respective issues raised in each forum can be resolved
persons legally entitled to receive the same; and generally to do such acts independently on the other. (Smart Communications vs. Astorga)
respecting the property as the court may authorize. However, funds in the
hands of a receiver may be invested only by order of the court upon the 1. WHEN WRIT MAY ISSUE
written consent of all the parties to the action. (7a)
Section 1. Application. — A party praying for the recovery of possession
No action may be filed by or against a receiver without leave of the court of personal property may, at the commencement of the action or at any
which appointed him. (n) time before answer, apply for an order for the delivery of such property to
him, in the manner hereinafter provided.
Foreclosure of mortgage is among the general powers of a receiver;
prescription thus sets in even if the creditor is placed under BEFORE ANSWER: because after answer is filed, the issues are joined
receivership: receivership is not considered a fortuitout event: including the judicial controversy regarding entitlement to possession.
foreclosure of mortgages is part of the receivers/liquidators duty of
administering the banks assets for the benefit of its depositors and creditors, 2. REQUIREMENTS
thus, the ten-year prescriptive period was not interrupted by the time during
which the respondent bank was placed under receivership. Section 2. Affidavit and bond. — The applicant must show by his own
affidavit or that of some other person who personally knows the facts:
The receiver of the bank is in fact obliged to collect debts owing to the bank,
which debts form part of the assets of the bank. The receiver must assemble (a) That the applicant is the owner of the property claimed, particularly
the assets and pay the obligation of the bank under receivership, and take describing it, or is entitled to the possession thereof;
steps to prevent dissipation of such assets. Accordingly, the receiver of the
bank is obliged to collect pre-existing debts due to the bank, and in connection (b) That the property is wrongfully detained by the adverse party, alleging
therewith, to foreclose mortgages securing such debts. (Larrobis, Jr. vs. the cause of detention thereof according to the best of his knowledge,
Philippine Veterans Bank) information, and belief ;
6. TERMINATION AND COMPENSATION (c) That the property has not been distrained or taken for a tax assessment
or a fine pursuant to law, or seized under a writ of execution or preliminary
Section 8. Termination of receivership; compensation of receiver. attachment, or otherwise placed under custodia legis, or if so seized, that
— Whenever the court, motu proprio or on motion of either party, shall it is exempt from such seizure or custody; and
determine that the necessity for a receiver no longer exists, it shall, after
due notice to all interested parties and hearing, settle the accounts of the (d) The actual market value of the property.
receiver, direct the delivery of the funds and other property in his
possession to the person adjudged to be entitled to receive them and order The applicant must also give a bond, executed to the adverse party in
the discharge of the receiver from further duty as such. The court shall double the value of the property as stated in the affidavit aforementioned,
allow the receiver such reasonable compensation as the circumstances of for the return of the property to the adverse party if such return be
the case warrant, to be taxed as costs against the defeated party, or adjudged, and for the payment to the adverse party of such sum as he
apportioned, as justice requires. may recover from the applicant in the action.
Prior demand is not necessary: For a writ of replevin to issue, all that the Second, it must be stressed that from the moment an order of delivery
applicant must do is to file an affidavit and bond, pursuant to Section 2, Rule in replevin is executed by taking possession of the property specified therein,
60 of the Rules. such property is incustodia legis. As legal custodian, it is the Sheriff’s duty
to safekeep the seized motor vehicles.
The applicant must also give a bond, executed to the adverse party in double
the value of the property as stated in the affidavit aforementioned, for the Third, the sheriff should take precautionary measures to safeguard the
return of the property to the adverse party if such return be adjudged, and property subject of replevin. (Hao vs. Andres)
for the payment to the adverse party of such sum as he may recover from the
applicant in the action. 4. THIRD PARTY CLAIM
We see nothing in these provisions which requires the applicant to make a Section 7. Proceedings where property claimed by third person.
prior demand on the possessor of the property before he can file an action — If the property taken is claimed by any person other than the party
for a writ of replevin. Thus, prior demand is not a condition precedent against whom the writ of replevin had been issued or his agent, and such
to an action for a writ of replevin. (Navarro vs. Escobido) person makes an affidavit of his title thereto, or right to the possession
thereof, stating the grounds therefor, and serves such affidavit upon the
DENR detention of forest goods is considered custodia legis: as such, sheriff while the latter has possession of the property and a copy thereof
it may not be covered by a writ of replevin. This is because the DENR is upon the applicant, the sheriff shall not be bound to keep the property
considered a quasi-judicial agency of primary jurisdiction. under replevin or deliver it to the applicant unless the applicant or his
agent, on demand of said sheriff, shall file a bond approved by the court
Property detained in connection to a crime cannot be the subject of to indemnify the third-party claimant in a sum not less than the value of
replevin: because they are lawfully detained and as such, the applicant the property under replevin as provided in section 2 hereof. In case of
cannot be considered unlawfully deprived thereof. disagreement as to such value, the court shall determine the same. No
claim for damages for the taking or keeping, of the property may be
3. DISPOSITION OF PROPERTY BY SHERIFF enforced against the bond unless the action therefor is filed within one
hundred twenty (120) days from the date of the filing of the bond.
Section 6. Disposition of property by sheriff. — If within five (5) days
after the taking of the property by the sheriff, the adverse party does not The sheriff shall not be liable for damages, for the taking or keeping of
object to the sufficiency of the bond, or of the surety or sureties thereon; such property, to any such third-party claimant if such bond shall be filed.
or if the adverse party so objects and the court affirms its approval of the Nothing herein contained shall prevent such claimant or any third person
applicant's bond or approves a new bond, or if the adverse party requires from vindicating his claim to the property, or prevent the applicant from
the return of the property but his bond is objected to and found insufficient claiming damages against a third-party claimant who filed a frivolous or
and he does not forthwith file an approved bond, the property shall be plainly spurious claim, in the same or a separate action.
delivered to the applicant. If for any reason the property is not delivered
to the applicant, the sheriff must return it to the adverse party. (6a) When the writ of replevin is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such bond shall
No immediate delivery to the applicant; adverse party is given 5 days not be required, and in case the sheriff is sued for damages as a result of
to either: the replevin, he shall be represented by the Solicitor General, and if held
a. Object to the sufficiency of the bond; or liable therefor, the actual damages adjudged by the court shall be paid by
b. Require the return of the property by filing a counter-bond (redelivery the National Treasurer out of the funds to be appropriated for the purpose.
bond) under Sec. 5, to wit:
BOND IS THREE TIMES THE VALUE OF THE PROPERTY: In replevin,
Section 5. Return of property. — If the adverse party objects to where there is a third party claimant, the bond required to be posted by the
the sufficiency of the applicant's bond, or of the surety or sureties applicant is trice the value of the property – original bond for twice the value
thereon, he cannot immediately require the return of the property, and an additional bond equivalent to the value of the property for the 3rd party
but if he does not so object, he may, at any time before the delivery claimant.
of the property to the applicant, require the return thereof, by filing
with the court where the action is pending a bond executed to the 5. JUDGMENT
applicant, in double the value of the property as stated in the
applicant's affidavit for the delivery thereof to the applicant, if such Section 9. Judgment. — After trial of the issues the court shall determine
delivery be adjudged, and for the payment of such sum, to him as who has the right of possession to and the value of the property and shall
may be recovered against the adverse party, and by serving a copy render judgment in the alternative for the delivery thereof to the party
of such bond on the applicant. (5a) entitled to the same, or for its value in case delivery cannot be made, and
also for such damages as either party may prove, with costs. (9a)
Sheriff is liable for the loss of the thing for immediately delivering
the property to the applicant prior to the expiration of the five days: Recovery is limited to EITHER:
First, the rules provide that property seized under a writ of replevin is not to 1. The delivery of the thing subject of the case; or
be delivered immediately to the plaintiff. In accordance with the said rules, 2. The value thereof in case delivery cannot be made.
the sheriff should have waited no less than five days in order to give the
complainant an opportunity to object to the sufficiency of the bond or of the Plus: damages and costs, as proven.
surety or sureties thereon, or require the return of the seized motor vehicles
by filing a counter-bond. Applicant of the writ of replevin cannot pray for both unpaid
instalment and the delivery of the car: the remedies provided for in Art.
The rule is clear that the property seized should not be immediately delivered 1484 are alternative, not cumulative. The exercise of one bars the exercise of
to the plaintiff, and the sheriff must retain custody of the seized property for the others. This limitation applies to contracts purporting to be leases of
at least five days. personal property with option to buy by virtue of Art. 1485. The condition that
the lessor has deprived the lessee of possession or enjoyment of the thing for
Cesar Nickolai F. Soriano Jr.
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the purpose of applying Art. 1485 was fulfilled in this case by the filing by relief. All that a court is tasked to do is determine the kind and amount of
petitioner of the complaint for replevin to recover possession of movable evidence which may suffice to enable it to justly resolve the application. It is
property. enough that the facts be established by affidavits or other documentary
evidence appearing in the record. (Mangonon vs. CA)
This prayer of course cannot be granted, even assuming that private
respondents have defaulted in the payment of their obligation. This led the 1. APPLICATION FOR SUPPORT PENDENTE LITE
trial court to say that petitioner wanted to eat its cake and have it too. (Elisco
Tool Manufacturing Corporation vs. CA) Section 1. Application. — At the commencement of the proper action
or proceeding, or at any time prior to the judgment or final order, a verified
However, if the recovery of the property did not materialize, the trial court application for support pendente lite may be filed by any party stating the
may grant the recovery of sum of money: Compared with Elisco, the vehicle grounds for the claim and the financial conditions of both parties, and
subject matter of this case was never recovered and delivered to respondent accompanied by affidavits, depositions or other authentic documents in
despite the issuance of a writ of replevin. As there was no seizure that support thereof.
transpired, it cannot be said that petitioners were deprived of the use and
enjoyment of the mortgaged vehicle or that respondent pursued, commenced WHEN: at the commencement of the action or at any time prior to the
or concluded its actual foreclosure. The trial court, therefore, rightfully judgment or final order, or practically anytime, because the decision for
granted the alternative prayer for sum of money, which is equivalent to the support never becomes final.
remedy of "exacting fulfillment of the obligation." Certainly, there is no double
recovery or unjust enrichment to speak of. (Sps. Agner vs. BPI Family Savings DAMAGES: not applicable. Even if jusgment is in favour of defendant.
Bank, Inc.)
2. COMMENT, HEARING, ORDER
Sale of car in instalments; court cannot order return of the car or its
value if the same has not been fully paid yet: the trial court erred when Section 2. Comment. — A copy of the application and all supporting
it ordered private respondent to return the subject car or its equivalent documents shall be served upon the adverse party, who shall have five (5)
considering that petitioner had not yet fully paid the purchase price. Verily, to days to comment thereon unless a different period is fixed by the court
sustain the trial court's decision would amount to unjust enrichment. The upon his motion. The comment shall be verified and shall be accompanied
Court of Appeals was correct when it instead ordered private respondent to by affidavits, depositions or other authentic documents in support thereof.
return, not the car itself, but only the amount equivalent to the fourteen
installments actually paid with interest. (Orosa vs. CA) Section 3. Hearing. — After the comment is filed, or after the expiration
of the period for its filing, the application shall be set for hearing not more
6. DAMAGES than three (3) days thereafter. The facts in issue shall be proved in the
same manner as is provided for evidence on motions.
Section 10. Judgment to include recovery against sureties. — The
amount, if any, to be awarded to any party upon any bond filed in Section 4. Order. — The court shall determine provisionally the pertinent
accordance with the provisions of this Rule, shall be claimed, ascertained, facts, and shall render such orders as justice and equity may require,
and granted under the same procedure as prescribed in section 20 of Rule having the regard to the probable outcome of the case and such other
57. circumstances as may aid in the proper resolution of the question involved.
If the application is granted, the court shall fix the amount of money to be
provisionally paid or such other forms of support as should be provided,
E. RULE 61: SUPPORT PENDENTE LITE taking into account the necessities of the applicant and the resources or
means of the adverse party, and the terms of payment or mode for
PRINCIPAL ACTION: is support. providing the support. If the application is denied, the principal case shall
be tried and decided as early as possible.
Family Code, Art. 203. The obligation to give support shall be
demandable from the time the person who has a right to receive the same 3. ENFORCEMENT OF ORDER
needs it for maintenance, but it shall not be paid except from the date of
judicial or extra-judicial demand. Section 5. Enforcement of order. — If the adverse party fails to comply
with an order granting support pendente lite, the court shall, motu
Support pendente lite may be claimed in accordance with the Rules of proprio or upon motion; issue an order of execution against him, without
Court. prejudice to his liability for contempt.
Payment shall be made within the first five days of each corresponding When the person ordered to give support pendente lite refuses or fails to
month or when the recipient dies, his heirs shall not be obliged to return do so, any third person who furnished that support to the applicant may,
what he has received in advance. after due notice and hearing in the same case obtain a writ of execution
to enforce his right of reimbursement against the person ordered to
DEDUCTIONS FROM SUPPORT IN ARREARS: The monthly support provide such support.
pendente lite granted by the trial court was intended primarily for food,
household expenses such as salaries of drivers and house helpers, and also 4. RESTITUTION
petitioner’s scoliosis therapy sessions. Hence, the value of two expensive cars
bought by respondent for his children plus their maintenance cost, travel Section 7. Restitution. — When the judgment or final order of the court
expenses of petitioner and Angelli, purchases through credit card of items finds that the person who has been providing support pendente lite is not
other than groceries and dry goods (clothing) should have been disallowed, liable therefor, it shall order the recipient thereof to return to the former
as these bear no relation to the judgment awarding support pendente lite. the amounts already paid with legal interest from the dates of actual
The deductions should be limited to those basic needs and expenses payment, without prejudice to the right of the recipient to obtain
considered by the trial and appellate courts. (Lim-Lua vs. Lua, GR No. 175279, reimbursement in a separate action from the person legally obliged to give
June 5, 2013) the support. Should the recipient fail to reimburse said amounts, the
person who provided the same may likewise seek reimbursement thereof
SUPPORT PENDENTE LITE: Under Rule 61 of the Rules of Court, a court in a separate action from the person legally obliged to give such support.
may temporarily grant support pendente lite prior to the rendition of judgment
or final order. Because of its provisional nature, a court does not need to delve REMEDIES OF DEFENDANT: in case the case is decided in favour of the
fully into the merits of the case before it can settle an application for this
Cesar Nickolai F. Soriano Jr.
10 Arellano University School of Law 2011-0303
REMEDIAL LAW 2: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL and LECTURES OF ATTY. TRANQUIL
defendant, his remedies would be to: of an appeal stays the execution of the judgment and that advance executions
1. Seek restitution in the same action from the recipient; or will only be allowed if there are urgent reasons therefor. The aforesaid
2. Obtain reimbursement from the person legally obliged to give support in provision peremptorily calls for immediate execution of all judgments for
a separate action. support and makes no distinction between those which are the subject of an
appeal and those which are not.
Example:
a. Alice files against Bernard (B) a petition for support with prayer for An excerpt from the early case of De Leon v. Soriano is relevant, thus:
Support Pendente Lite;
b. B has 5 days to comment The money and property adjudged for support and education
i. f no comment, court grants SPL; should and must be given presently and without delay because
ii. If B comments, there will be a hearing if it had to wait the final judgment, the children may in the
c. If A fails to establish paternity: meantime have suffered because of lack of food or have missed
i. A restitutes the whole amount plus interest; B can file it in the same and lost years in school because of lack of funds. One cannot
action; delay the payment of such funds for support and education for
ii. If C is proven the real father, C reimburses B; B has to file a the reason that if paid long afterwards, however much the
separate action for reimbursement. accumulated amount, its payment cannot cure the evil and
repair the damage caused. The children with such belated
REIMBURSEMENT MAY BE HAD BY THE PERSON WHO ADVANCED payment for support and education cannot act as gluttons and
SUPPORT: Pursuant to Article 207 of the Family Code, Noel Daban can eat voraciously and unwisely, afterwards, to make up for the
rightfully exact reimbursement from the petitioner. The provision reads: years of hunger and starvation. Neither may they enrol in
several classes and schools and take up numerous subjects all
When the person obliged to support another unjustly refuses or fails at once to make up for the years they missed in school, due to
to give support when urgently needed by the latter, any third person non-payment of the funds when needed.
may furnish support to the needy individual, with right of
reimbursement from the person obliged to give support. (Gan vs. Reyes)
Art. 204. The person obliged to give support shall have the option to fulfill
the obligation either by paying the allowance fixed, or by receiving and
maintaining in the family dwelling the person who has a right to receive
support. The latter alternative cannot be availed of in case there is a moral
or legal obstacle thereto.
In this case, this Court believes that respondent Francisco could not avail
himself of the second option. With the filing of this case, and the allegations
hurled at one another by the parties, the relationships among the parties had
certainly been affected. Particularly difficult for Rica and Rina must be the fact
that those who they had considered and claimed as family denied having any
familial relationship with them. Given all these, we could not see Rica and
Rina moving back here in the Philippines in the company of those who have
disowned them. (Mangonon vs. CA)
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