PROVISIONAL REMEDIES  Writ is a written court order directed by competent legal

[Rules 57 to 61] authority commanding the addressee to do or refrain from a

specified act.
There must be a main action because without a main action, you  Process is the proceeding in any action or prosecution like a
cannot file an action for attachment. For example, in a case subpoena or writ of execution. It is an order for a person to
involving collection of sum of money with attachment, you cannot appear or to respond to any court.
file an action for receivership without a main action.
The court which grants or issues the provisional remedy is the
But there are provisional remedies which can also be the main Court which has jurisdiction over the main case.
action like replevin, injunction with injunction and injunction with
preliminary injunction.
Section 1. Grounds upon which attachment may issue.
Why are they called Provisional Remedies? What is the
purpose of Provisional Remedies? At the commencement of the action or at any time before entry of
 It is to preserve and protect the rights and interests of the judgment, a plaintiff or any proper party may have the property of
litigants. It is temporary because constitute temporary the adverse party attached as security for the satisfaction of any
measures availed of during the pendency of the main judgment that may be recovered in the following cases:
action.
 They are provisional and ancillary because they are mere (a) In an action for the recovery of a specified amount of money or
incidents and dependent upon the result of the main action. damages, other than moral and exemplary, on a cause of action
If the main action is dismissed like a provisional arising from law, contract, quasi-contract, delict or quasi-delict
attachment, then attachment is automatically lifted. If a against a party who is about to depart from the Philippines which
provisional remedy with injunction is issued and the main intent to defraud his creditors;
case is dismissed, then the injunction shall be automatically
lifted. (b) In an action for money or property embezzled or fraudulently
 Provisional remedy is also a collateral proceeding, permitted misapplied or converted to his own use by a public officer, or an
only in connection with the main action and as one of its officer of a corporation, or an attorney, factor, broker agent, or
incidents. The resolution of the provisional remedies does clerk, in the course of his employment as such, or by other person
not affect the merits of the case. in a fiduciary capacity, or for a willful violation of duty;

RULE 57 (c) In an action to recover the possession of property unjustly or

PRELIMINARY ATTACHMENT fraudulently taken, detained or converted, when the property, or
any part thereof, has been concealed, removed, or disposed of to
The first provisional remedy is Preliminary Attachment. prevent its being found or taken by the applicant or an authorized
person;
What is Preliminary Attachment?
 It is a provisional remedy where the court will direct the (d) In an action against a party who has been guilty of a fraud in
sheriff or proper officer to levy the property or properties of contracting the debt or incurring the obligation upon which the
the defending property to be held by the sheriff or proper action is brought, or in the performance thereof;
officer as security for the satisfaction of judgment.
(e) In an action against a party who has removed or disposed of
What is the distinction between a Writ and a Process? his property, or is about to do so, with intent to defraud his
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creditors; or  As security for the satisfaction of any judgment that may be
recovered. If the plaintiff attached the car or parcel of land
(f) In an action against a party who does not reside and is not of the defending party, the applicant does not automatically
found in the Philippines, or on whom summons may be served by become the owner of the property attached. Wait for the
publication. judgment first. If there’s judgment, the attached property
will be sold at public auction if the defending party fails to
These are exclusive grounds. The applicant for Preliminary pay.
Attachment must allege concrete or factual basis for the issuance
of an order of Preliminary Attachment. The general rule is to What are the grounds so that an order for attachment may
construe the rules of court liberally. One of the exceptions is be issued?
Attachment because even before the court decides the case, the *First ground:
plaintiff has already levied the property of the defending party (a) In an action for the recovery of a specified amount
which will cause the latter embarrassment. Gikiha pa gani ka, of money or damages, other than moral and
gibira na imong mga property. So Rule 57 should be strictly exemplary, on a cause of action arising from law,
construed against the applicant. contract, quasi-contract, delict or quasi-delict
against a party who is about to depart from the
When shall an application or motion for attachment be filed? Philippines which intent to defraud his creditors;
1. At the commencement of the action.
2. Or at anytime before entry of judgment We have the phrase “action for the recovery of a specified
amount of money or damages”. What is the significance or
Example, a case for collection of sum of money with attachment is the use of the word “specified amount”?
at its commencement. In the course of the trial, the defendant  It means that attachment is applicable only if the claim for
begun to fraudulently dispose his property, so the plaintiff may file damages is liquidated. In other words, you can’t file an
a motion for the issuance of writ of preliminary attachment. application for Preliminary Attachment if the damages are
unliquidated like moral and exemplary damages. You have
to prove moral and exemplary damages.
Why before judgment?
 Because if there is already a judgment, a writ of execution Example, suppose Ms. USC was slapped, then she filed a criminal
follows as a matter of course. Kung mu-attach ba ron ka, action for slander and a separate civil action for damages with
and the judgment has already become final and executory, moral damages of 450T, exemplary damages of 200T, attorney’s
it is a matter of right for the winning or prevailing party to fee of 100T, etc. May plaintiff avail of Rule 57? No because the
file a motion for the issuance of writ of execution. damages claimed are unliquidated as the rule says, “other than
moral and exemplary damages”.
Who may file?
 Plaintiff or any proper party. The counter claimant may file We also have the phrase “on a cause of action arising from
an application for writ of attachment, the cross claimant law, contract, quasi-contract, delict or quasi-delict against a
may also file an application for the issuance of writ of party who is about to depart from the Philippines which
preliminary attachment. intent to defraud his creditors”. What does this mean?
 Mere attempt to depart with intent to defraud is sufficient. If
What is the purpose of levying of real, personal, incorporeal, the defendant attempted or left the Philippines but with no
etc properties of the defending party? intention to defraud, there is no attachment that can be
issued.
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  Example: X vs Y. The claim of X is 500T and the defendant *Fourth ground:
attempted or left the Philippines but left properties worth (d) In an action against a party who has been guilty of
10M which can be attached or levied on execution if there is a fraud in contracting the debt or incurring the
already a judgment, so the court won’t grant the application obligation upon which the action is brought, or in
for attachment. the performance thereof;

*Second ground: What is the meaning of “fraud in contracting the debt”?

(b) In an action for money or property embezzled or  It means that the debtor had no intention to pay
fraudulently misapplied or converted to his own from the very beginning. That is fraud in contracting
use by a public officer, or an officer of a the debt.
corporation, or an attorney, factor, broker agent,  There is fraud in incurring the obligation.
or clerk, in the course of his employment as such,
or by other person in a fiduciary capacity, or for a *Fifth ground:
willful violation of duty; (e) In an action against a party who has removed or
disposed of his property, or is about to do so, with
Example, in an estafa case. May the court grant an order of intent to defraud his creditors;
attachment? Yes. How about malversation? Yes.
There are two things to remember: 1) removal, disposal and 2)
What is the meaning of “fiduciary capacity”? with intent to defraud his creditors.
 It means that there’s trust and confidence.
 Example: Suppose X and Y went to a lotto outlet and Example: X files a case against Y and X claims 500T. Defendant
bought one ticket at 50PhP. Daog. Y kept the winnings. X disposed his properties but he has also property worth 1M left.
ran after naturally. X may file an action for collection of sum Plaintiff may not attach because he can recover from the properties
of money with attachment because he was defrauded. There not sold by the defendant.
was a relationship of trust and confidence between him and
Y. (f) In an action against a party who does not reside
and is not found in the Philippines, or on whom
*Third ground: summons may be served by publication.
(c) In an action to recover the possession of property
unjustly or fraudulently taken, detained or What do you mean by “Action against a party who does not
converted, when the property, or any part thereof, reside in the Philippines”?
has been concealed, removed, or disposed of to  Example. Foreigner came. He said, “Bigtime ko sa amo. But
prevent its being found or taken by the applicant nawala lang ako credit card. Can I borrow from you 200M
or an authorized person; so I can buy a yacht?” Then you let him borrow and he
purchases the yacht. But he mortgaged the yacht to the
So there must be an allegation of concealment or removal or lender. After a month, foreigner left. The general rule is if
disposal. We will compare this with replevin. the defendant is not a resident and is not found in the
Philippines, forget it because you cannot recover. But letter
Replevin is recovery of personal property only. If the plaintiff wants (f) is an exception because if he left the Philippines, then
an immediate recovery of the property, he should file an action of file an action to foreclose the mortgage and go against the
provisional remedy for replevin and not attachment. res.

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  How about jurisdiction over the person? Never mind. What
is important is not the jurisdiction over person but the
jurisdiction over the res. Sec. 2. Issuance and contents of order.
An order of attachment may be issued either ex parte or upon
What are examples of summons which may be served by
motion with notice and hearing by the court in which the action is
publication, when he is a resident of the Philippines but
pending, or by the Court of Appeals or the Supreme Court, and
temporarily out therefrom? What are the classes of
must require the sheriff of the court to attach so much of the
attachment?
property in the Philippines of the party against whom it is issued,
not exempt from execution, as may be sufficient to satisfy the
1. Preliminary Attachment during the pendency of the case
applicant's demand, unless such party makes deposit or gives a
and before final judgment
bond as hereinafter provided in an amount equal to that fixed in
2. Levy on execution, there is already a judgment
the order, which may be the amount sufficient to satisfy the
3. Final Attachment, the judgment has become final and
applicant's demand or the value of the property to be attached as
executory
stated by the applicant, exclusive of costs. Several writs may be
issued at the same time to the sheriffs of the courts of different
judicial regions.
What is the distinction between garnishment and
attachment?
Preliminary Attachment may be validly attached for and granted ex
 In garnishment, there are three parties who are the
parte. There are stages in the issuance of attachment. When you
creditor, debtor and a 3rd person who may be in the
file a case, it may carry with it already an application for the
possession of the property of the debtor
issuance of writ of attachment like in case of collection of sum of
 In garnishment, there is no actual seizure if the defendant
money with attachment. It’s found in the prayer/“wherefore”.
has property in the possession of a 3rd person. Here, the 3rd
person shall be instructed not to return the property. It’s
So mupray siyag attachment and the court need not give the
like bank deposit where the bank is instructed not to deliver
defending party the chance to oppose the issuance of the order. So
money to the depositor.
naa manay gibutang sa wherefore, then the court will issue an
 But in attachment, there must actual possession. And
order. That is ex parte. You do not inform the debtor because of
sheriff shall go to the residence of the debtor, iyang birahon
the debtor will be informed in advance that there is an application
mga properties or muadto sa Register of Deeds to annotate
for attachment and he will dispose all his properties or fraudulently
the attachment.
transfer to some person to prevent you from satisfaction of
 Garnishment is usually directed against intangibles.
judgment.
Attachment is against intangibles.
 Writ of attachment cannot be quashed ex parte because
Second stage is the issuance of the writ of attachment. It’s the
there must be hearing and the plaintiff must be given
court which will issue the order but it’s the clerk of court who will
opportunity to oppose the motion to release the attached
issue the writ of attachment still ex parte.
property.
But the third stage, that is actual implementation of the writ of
Incorporation duly licensed to do business in the Philippines is not
attachment which is levy on attachment, dili na pwede ex parte,
a non resident within the meaning of Section 1 (f).
dili na pwede if the court has not yet acquired jurisdiction over the
person of the defendant.
Attachment is a proceeding in rem theoretically binding against the
whole world
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So kung actual levy na and kuhaon na ang property sa defendant, property, usually personal property capable of manual
the summons must have already validly been served. Kun naa na delivery.
ang writ of attachment, di na siya kadispose sa properties kay sige
naman panguha ang sheriff sa properties sa defending party. Action against a party who had removed or disposed
property in fraud of his creditors.
Dismissal of the main action carries with it the lifting of  Mere removal or disposal without intent to defraud is not a
attachment. ground for attachment. There is a good example which
happened in Cebu City where P files case against D and
What is the lifetime of a writ of attachment? attached the properties of D which are motor vehicles. If
 It’s not found in the Rules of Court. In Civil Procedure, you you are D, you can prevent an attachment either by
know that a judgment which has become final and depositing money with the court or posting attachment or
executory must be executed within 5 years by motion. counter attachment bond. So gilevy and iyang mga property
Mulapas gani ug 5 years but wala pa nalapas ug 10 years, and gadeposit siyag money so narelease ang motor
how do you execute the judgment? File an independent vehicles. Then gimortgage niya ang motor.
action for the revival of judgment. Dili na by motion. So  Pwede mapas\dayon ang attachment? No because
that is also the lifetime of the writ of attachment within 5 mortgage is non disposal. Its not fraudulent disposal kay
years. kung imortgage it can be recovered. Walay transfer of
property in real estate mortgage. Mortgage is only a
security for the performance of an obligation but if there is
Another example of an action for money or property embezzled or an allegation relative to the fraudulent disposal, then better
fraudulently misapplied by a party in the course of his then to secure to court to hear the allegation relative to
employment. fraudulent disposal. Mere allegation is not sufficient.

Suppose a manager of the corporation took the property of May the property in custodial legis be attached?
the corporation for his own personal use and benefit and the  Yes provided it is not money in the hands of the
corporation wants to recover money from him. Corporation government like the salaries of teachers not yet released to
may file an application for the issuance of writ of them. Naa pa sa treasurer gain, di pana property sa teacher
attachment because there is a fiduciary relation between but marelease na gani and nakuha na ang check, pwede na
the corporation and the manager. maattach.
 Exceptions: if the money is needed for the sustenance of
How will you distinguish Attachment from Replevin? the family. Properties exempt form executions are also
 In Attachment, the attaching party may levy real or exempt from attachment like support. Can you attach the
personal property (shares of stocks), corporeal or 20k given to the girl as support? No because money given
incorporeal, etc. In Replevin, only personal property. by of support is exempt from execution. Money deposited
 In Attachment, you attach the property of your adversary/ with the clerk of court is exempt and not subject to
the defending party. The plaintiff can’t attach his own execution.
property. X and Y for example nag-ilog ug one property,
real prop or whatever. Can plaintiff file an application for If the interest of the defending party in property or the
attachment? No because he is claiming to be the owner of defendant in property belonging to the estate of the
the property contested. In replevin, the plaintiff claims to be deceased.
either the owner or lawful possessor of the personal  May that property be attached? Namatay ang amahan, 3
ang anak, utangan ang anak. Can creditor attach the share
5
 of the debtor property? Yes. But it’s still in the possession of court which may be the amount sufficient to satisfy the
executor administrator so proceed against executor or applicant's demand or the value of the property to be
administrator. attached as stated by the applicant, exclusive of costs

Lien created by attachment  Ex: P’s claim is 1M and P caused attachment of the property
 The attaching creditor acquires a specific lien upon the of D worth 500T. How much shall be the deposit or bond
attached property which ripens into judgment against the posted? Even if the main claim is 1M, since property
res when the order of sale is made. attached is only 500T then you can deposit 500T only or
 Lien means charge on the property. Ang procedure mao post bond with the same amount.
nani. Kung naa nay file and executory judgment,
mudemand ang P na mubayad si D. If di kabayad, you sell “Several writs may be issued at the same time to the
the property. Wala na ang automatic forfeiture of property. sheriffs of the courts of different judicial regions”
In civil law that’s pactum commisoruim, an agreement to  The question is what is the range of enforceability of writ of
forfeit the property in favor of C, if debt is not paid. attachment? Anywhere in the Philippines. Unlike injunction
where it’s only within the region. If you file a complaint
Order of attachment may be issued ex parte and you know reason against defendant with attachment and naa xa speedboat in
already or upon motion of notice or hearing by the court in which Davao and motor in Cebu, pwede iaddress writs adto sa
action is pending (SC, CA or RTC) Davao sheriff or in Cebu sheriff so you can recover
anywhere in the Phils. That’s the meaning of several writs
What is the mandate of the writ of attachment? may be issued……anywhere in the Phils.
 Look Sec 2. It requires the sheriff of the court to attach so
much of the property in the Philippines of the party against
whom it is issued. Sec. 3. Affidavit and bond required.
 Ex: Claim of P is 200T. Niadto ang sheriff, nakakitag awto
An order of attachment shall be granted only when it appears by
nga tag 500T and other worth 2M. Which will he attach?
the affidavit of the applicant, or of some other person who
That property worth 200T and not the 2M because the rule
personally knows the facts, that a sufficient cause of action exists,
says that only so much of the property. Kung ilevy and 2M
that the case is one of those mentioned in section 1 hereof, that
that’s not so much but too much.
there is no other sufficient security for the claim sought to be
 If outside the Philippines, it’s beyond the jurisdiction of the
enforced by the action, and that the amount due to the applicant,
court already.
or the value of the property the possession of which he is entitled
 Properties exempt form executions are also exempt from
to recover, is as much as the sum for which the order is granted
attachment. It’s found in Sec 2. which says “not exempt
above all legal counterclaims. The affidavit, and the bond required
from execution as may be sufficient to satisfy the applicants
by the next succeeding section, must be duly filed with the court
demand”
before the order issues.
How do you prevent attachment? Or release of attached
What are the contents of the affidavit?
property?
1. Sufficient cause of action exist
 Under Sec 2, it says, unless such party makes deposit or
2. Case is one of those mentioned in Sec 1 Rule 57 exclusive
gives a bond as hereinafter provided in an amount equal to
grounds
that fixed in the order. So pwede, pila mana iyang claim
3. No other sufficient security for the claims sought to be
500T, deposit 500T with the court ra. Or post a bond by a
enforced by the action
bonding company amounting equal to that fixed by the
6
 will pay all the costs which may be adjudged to the adverse party
Why ibutang? and all the damages which he may sustained by reason of the
 Naay nangutang nimo. Giprenda niya iya yuta to secure attachment. If the court shall finally adjudge that the applicant was
payment. Loan with real estate mortgage. Ang imo utang is not entitled thereto, the last phrase is very important. If the court
500K, property was mortgage for 1M. Can you attach the shall finally adjudge that the applicant was not entitled thereto, is
prop of the D? No because the obligation is secured by the it necessary for a defendant to recover damages? That fraud must
mortgage. Why will you be afraid of not recovering nga naa be alleged in procuring the attachment order. Ikaw defendant
may security. gihatagan ka, gi attach imong property, ikaw ni daog-defendant.
 Except if security is insufficient. Suppose, loan secured is 1M Can you recover against the bond if there is no allegation of fraud
and secured by a prop worth 500k. Can P attach? Yes bec the in securing the order of attachment? Supreme court in many
mortgage is 500k, ½ is unsecured. Apply the attachment to cases, said that the answer is no. it is not required by section 4 of
cover the unsecured portion of the obligation. The amount Rule 57. Unsa man ang gikinahanglan para maka recover ka
due or the value of the property to the applicant which he’s against the bond? Last phrase, if the court shall finally adjudge
entitled to recover the possession of is as much as the sum of that the applicant was not entitled thereto. Pananglitan, Y
which the order is granted above all legal boundaries? Kaning borrowed money from X. 1M. X filed a case against Y. No doubt
bond gibalik balik ni sa attachment, injunction, receivership, about it, utangan gyud siya. But plaintiff secured wrongfully an
repliven, etc. Except support pendent elite. Tanan naay bond. order for attachment. What will happen? Ni daog si plaintiff kay
utangan gyud si defendant, but defendant can recover against the
What’s a bond? plaintiff for improper procurement of an order of attachment.
 An obligation, a written promise to pay in money or by sum in Pananglitan plaintiff said, defendant daog kog 1M, ---This property
certain time to lapse. in fraud of creditors, bakak to siya, dili tinuod. So improper
attachment. Defendant may now recover from the plaintiff. Usahay
Issuance of writ of attachment is depends on sound discretion of tabla. So sigurado gyud ka nga mo-apply kag attachment, tinuod
the court. Kung ang court naay factual basis for the issuance of gyud, otherwise mosumbalik, bisan maka daog pa ka kay utangan
Writ of Attachment, an order for attachment is issued, especially if man ka, mosumbalik ang defendant. Bitaw utangan ko pero pataka
one of the grounds in Sec 1 is alleged in the complaint. If the judge man gud kag attach and it caused mo so much embarrassment.
issues an order for attachment with no ground stated in complaint Plaintiff’s dismissal of action entitles defendant to damages for
then he committed grave abuse of discretion amounting to lack of wrongful attachment.
jurisdiction. What’s the remedy? Rule 65 on certiorari.
Sec. 5. Manner of Attaching Property.
Sec. 4. Condition of applicant's bond. The sheriff enforcing the writ shall without delay and with all
The party applying for the order must thereafter give a bond reasonable diligence attach, to await judgment and execution in
executed to the adverse party in the amount fixed by the court in the action, only so much of the property in the Philippines of the
its order granting the issuance of the writ, conditioned that the party against whom the writ is issued, not exempt from execution,
latter will pay all the costs which may be adjudged to the adverse as may be sufficient to satisfy the applicant's demand, unless the
party and all damages which he may sustain by reason of the former makes a deposit with the court from which the writ is
attachment, if the court shall finally adjudged that hte applicant issued, or gives a counterbond executed to the applicant, in an
was not entitled there to. amount equal to the bond fixed by the court in the order of
attachment or to the value of the property to be attached,
So unsay e-post sa applicant? Usually the plaintiff? Attachment exclusive of costs. No levy on attachment pursuant to the writ
bond or applicant’s bond. What is the condition? Meaning what is issued under section 2 hereof shall be enforced unless it is
the purpose of that bond? Section 4 says condition that the latter preceded, or contemporaneously accompanied, by service of
7
summons, together with a copy of the complaint, the application unless it is preceded, or contemporaneously accompanied by the
for attachment, the applicant's affidavit and bond, and the order following:
and writ of attachment, on the defendant within the Philippines.
The requirement of prior or contemporaneous service of summons 1. Service of summons-kung ikaw maoy counsel sa
shall not apply where the summons could not be served personally defendant, tan-awa gyud inig implement sa attachment,
or by substituted service despite diligent efforts, or the defendant naa ba tanan? If all the documents are in order. So tan-awa
is a resident of the Philippines temporarily absent therefrom, or the kung naay summons.
defendant is a non-resident of the Philippines, or the action is one
2. Copy of the complaint
in rem or quasi in rem.
3. Application for attachment-meaning the motion
This is the duty or task of the sheriff. The question is HOW, what 4. Applicant’s affidavit
does the rule say? Sheriff in enforcing the writ shall, WITHOUT 5. Attachment bond
delay, take note of the words without delay and with all reasonable
diligence attach to await judgment and execution of the action, If one of the documents was not shown to the defending party,
only so much of the property in the Philippines of the party against or the party against whom attachment is issued, object—dili ni
whom the writ is issued, not exempt from execution, as may be pwede ma attach kay wa man kay affidavit diha, wa man kay
sufficient to satisfy the applicant’s demand. bond. Bisan naa pay bond, kung ang bond paltik, no
attachment. That’s one the reasons why you should furnish the
What is the reason for—without delay and with reasonable defendant a copy of the bond for the defendant to scrutinize
diligence? Kay pananglitan, mag pa langay langay ang sheriff sa the bond. Unsa man ning bonding company nga ni post sa
pag serve sa writ of attachment, mas labina kung ang sheriff ni bond? Iyang gi susi, sa Securities and Exchange Commission,
adto sa defendant, ang defendant, pwede bas a sunod nalang sus defunct three years ago, so dili na sila pwede mo issue ug
buwan unya tagaan tikag 5,000. Pag sunod buwan wa na gi-hurot bond. So object na sad ka. So general rule, before levy, either
nag dispose ang property. That’s why the sheriff is tasked to prior service of summons or contemporaneous service of
immediately implement the writ of attachment. Again so much of summons, dungan ang levy and service of summons, affidavits,
the property of the defending party sufficient to satisfy the etc.
applicant’s demand.
But in the following cases, the rule on prior service of summons
Again, balik na sad ni, we discussed this already, it’s still found in or contemporaneous service of summons, does not apply.
section 5, how do you defeat attachment? File a counter
attachment bond or deposit an amount which may be equivalent to 1. Where summons could not be served personally or by
the claim or to the value of the property attached. substituted service despite diligent efforts. Pananglitan
There are three stages in attachment: nag tago-tago ang defendant, para dili siya ma servan ug
summons, para dili ma implement ang writ of attachment,
1. issuance of the order,
so walay prior service of summons or contemporaneous
2. the issuance of the writ, and the
service of summons.
3. implementation which is levied on attachment.
2. The defendant is a resident of the Philippines
Moabot na gani sa stage sa levy, the court must acquire temporarily absent therefrom. So we do away with prior
jurisdiction over the person of the defendant, summons either or contemporary service of summons. Unsa may pasabot
personal, substituted, or extra-territorial. Rule says no levy on [sic] aning resident but temporarily absent? Ikaw lawyer ni adto

8
 ka sa Harvard para mag master ka, Master of Laws, you’re attached is property in custodia legis, in custody of the court. So
temporarily out. So pwede maka attach without prior or kung imo nang dal-on, malversation.
contemporary service of summons.
3. Defendant is non-resident of the Philippines, like a Sec. 6. Sheriff’s return.
foreigner, or even a Filipino citizen that is not a The party applying for the After enforcing the writ, the sheriff must
resident of the Philippines. likewise without delay make a return thereon to the court from
which the writ issued, with a full statement of his proceedings
4. The action is in rem or quasi in rem.
under the writ and a complete inventory of the property attached,
Irregularities in the service of are not cure by subsequent service together with any counter-bond given by the party against whom
of summons. So apply for another order. E-recall ninyo ang inyong attachment is issued, and serve copies thereof on the applicant.
basic civil procedure. Dili ba, kung pananglitan, ang pag implement
sa levy or writ of execution, the debtor is present, naa. Kay ang us Sheriff’s Return is simply the report of the sheriff on what
aka property 500,00, naay awto 200,000. Ni insister gyud siya nga happened to the writ of execution, the writ of attachment, how he
ayaw na, kani gyung usa. Kung sa pag implement naa ang debtor, implemented or enforced the writ of attachment.
the debtor will designate, starting with personal property, if it is
not enough, then real property. Section 6 states, so sheriff return—full statement of his
proceedings under the writ. That’s one, ni adto ko sa balay, way
Suppose the sheriff will insist, dili kini gyud, ni sukol ang debtor, gi awto, ni adto ko sa opisina way mga equipment nga madala, ni
sumbag niya ang sheriff to protect his property. Is that direct adto ko sa Register of Deeds, walay properties, so iya nang e-state
assault sa RPC? The answer is no, no direct assault because the sa iyang report. Second is complete inventory of the property
sheriff exceeded his authority. The debtor is only defending himself attached. Kung lima ang iyang gi-attach, lista niya lima, ang upat
and his property, no direct assault, he may even claim self- ra gani ang iyang gi-kuha, gi-taguan niya ang usa, that’s
defense. So the debtor may point out to the sheriff which of the malversation of public property because property attached is
property should be attached and sold to satisfy the judgment property in custodia legis.
thereof (Uñate vs. Abrogar).
He should also attach the counter-bond, and he should serve
Sheriff’s actual possession of movable property attached is copies of the Return to the applicant, kato rang applicant who will
necessary for lack of valid levy of attachment. Kinahanglan naa be interested sa kung man ang nakuha ni Mr. sheriff, wa ba ka nag
gyuy actual possession and naa siya’y inventory. pa langan langan.

Unsa man ang personal properties nga kuhaon? Suppose the Sec. 6. Attachment of real and personal property; recording
sheriff attached the car of the defendant, Mercedes benz ba ron, thereof.
unya e-tunong gyud na ug sabado, maayo ning sabado kay way
opisina. Gi-attach niya, Mercedes benz. Unya naa siya’y uyab, ah, Real and personal property shall be attached by the sheriff
dad-on ko ni sa Badian, adto ta maligo sa Kawasan Falls. Drive na executing the writ in the following manner:
siya, gida niya ang property attached. Pag abot sa Minglanilla, gi-
suyakan, hurot ang tanang ligid, pag ka ugma gi cannibalized ang (a) Real property, or growing crops thereon, or any interest
awto. What is the criminal liability if any of the sheriff? Answer is therein, standing uponthe record of the registry of deed of the
malversation of public property. Argue, it’s not public property, its province in the name of the party against whom attachment is
private property, answer is not good argument, because property issued, or not appearing at all upon such records, or belonging to
the party against whom attachment is issued and held by any other
9
person, or standing on the records of the registry of deeds in the that said interest is attached. A copy of said writ of attachment and
name of any other person, by filing with the registry of deeds a of said notice shall also be filed in the office of the clerk of the
copy of the order, together with a description of the property court in which said estate is being settled and served upon the
attached, and a notice that it is attached, or that such real property heir, legatee or devisee concerned.
and any interest therein held by or standing in the name of such If the property sought to be attached is in custodia legis, a copy of
other person are attached, and by leaving a copy of such order, the writ of attachment shall be filed with the proper court or quasi-
description, and notice with the occupant of the property, if any, or judicial agency, and notice of the attachment served upon the
with such other person or his agent if found within the province. custodian of such property.
Where the property has been brought under the operation of either
the Land Registration Act or the Property Registration Decree, the
notice shall contain a reference to the number of the certificate of Again how do you attach real property? How do you attach
title, the volume and page in the registration book where the personal property capable of manual delivery? How do you attach
certificate is registered, and the registered owner or owners property not capable of manual delivery? So depende, real
thereof. property, growing crops, etc.
The registrar of deed must index attachments filed under this
section in the names of the applicant, the adverse party, or the Unsaon man na pag attach sa sheriff? File with the Registry of
person by whom the property is held or in whose name it stands in Deeds a copy of the order together with the description of the
the records. If the attachment is not claimed on the entire area of property attached and a notice that it is attached, usually tatakan
the land covered by the certificate of title, a description sufficiently na didto sa title. What else, kung naay occupant ang real property?
accurate for the identification of the land or interest to be affected It says leave a copy of such order with the occupant of the
shall be included in the registration of such attachment; property. Then how about personal property capable of manual
(b) Personal property capable of manual delivery, by taking and delivery? Unsa may task sa sheriff? Take the personal property and
safely keeping it in his custody, after issuing the corresponding safely keep it, then issue the corresponding receipt. Kung nakabira
receipt therefor; ug awto, asa man na nimo, either naa court, or dal-on nimo sa
(c) Stocks or shares, or an interest in stocks or shares, of any bonded warehouse. Kanang stocks of shares, how should the
corporation or company, by leaving with the president or managing sheriff proceed? Leave with the president or managing agent a
agent thereof, a copy of the writ, and a notice stating that the copy of the writ of attachment and a notice stating that the stocks
stock or interest of the party against whom the attachment is and interests are attached in pursuant to such writ.
issued is attached in pursuance of such writ;
(d) Debts and credits, including bank deposits, financial interest, How about debts and credits etc. not capable of manual delivery?
royalties, commissions, and other personal property not capable of Leave the person owing such debts, etc. a copy of the writ, a
manual delivery, by leaving with the person owing such debts, or notice that the debts owing by him to the party against whom the
having in his possession or under his control, such credits or other attachment is issued, and the credits and other personal property
personal property, or with his agent, a copy of the writ, and notice in his possession, or under his control, belonging to said party, are
that the debts owing by him to the party against whom attachment attached in pursuance of such writ.
is issued, and the credits and other personal property in his
possession, or under his control, belonging to said party, are Actually letter D is garnishment. Ang defendant naa siya’y property
attached in pursuance of such writ; in the possession of third persons, ang tu-a d-ay ni nila, gi-
(e) The interest of the party whom attachment is issued in property abangan ang 6x6 truck, so sheriff will go to the person in
belonging to the estate of the decedent, wether as heir, legatee, or possession of the property of the plaintiff. Warning ayaw nanag e-
devisee, by serving the executor or administrator or other personal uli sa plaintiff, ayaw na na e-hatag, ayaw na ibalik. Kung bank
representative of the decedent with a copy of the writ and notice deposits, unsa man ang buhaton? Pahibaw-on ang bangko, naa ba
10
ni siya’y bank deposits, how much? So ayaw ihatag, e-freeze ang exist some definite and ascertainable form at the time of
iyang account kay kung mahuman ang kaso, that money will be attachment. Meaning of debt, credit or personal property, means
released to the winning party. some definite amount of money, ascertained or capable of being
ascertained.
How about the property interest of the party against whom
attachment is issued in property belonging to the estate of the Debts or credits which cannot be garnished, salary due from the
decedent? Suppose the defendant is an heir, legatee or devisee, government, naa pa sa possession sa government. Money in the
tua paman na, in possession of the executor or administrator, wa hands of public officers, although it may be due the government, it
pa man na sa imohang personal possession or custody. Ikaw is not liable to the creditors of the employees in the process of
sheriff, asa man ka padung, adto sa executor or administrator. garnishment. Kung naa pa gani sa hands sa government, ayaw ug
Rule says serve the executor or administrator or other personal e-attach, ayaw ug e-garnish kay dili na pwede, gobyerno gihapon
representative of the decedent the following: copy of the writ, and ang tag-iya ana basta naa pa sa possession sa government. Only
notice that said interest is attached. Copy of writ shall also be salary that is due may be subject of attachment. As I said,
filed in the office of the clerk of court. Last paragraph, may exception bisag due na na siya pero needed for the support of the
property under custodia legis be attached? The answer is yes but family, it is exempt from execution, so it is also exempt from
not all, general rule na siya, naa say exceptions. If the property attachment. The creditor is denied the right to attach unearned
sought to be attached is in custodia legis, a copy of the writ of salary of his debtor. Notice to garnishment to judgment debtor is
attachment shall be filed with the proper court or quasi-judicial necessary. Properties located in the Philippines of non-resident
agency, and notice of the attachment served upon the custodian of cannot be attached. What is the philosophy behind this rule? All
such property. property within the state is subject to the jurisdiction of its courts.
What is within the reach of the executive and legislative is also
Si X ug si Y nag ilog sa yuta, naa sila’y kaso, recovery of within the reach of the judiciary.
possession of ownership of real property. Pero si X ug si Y puro sila
utangan ni A. Maka attach ba si A nga naa may notice of lis Sec. 6. Effect of attachment of debts, credits and all other
pendens? The answer is yes. Kinsa tong finally maka tag-iya sa similar personal property.
property, siya ang maka tag-iya sa property sold for public auction. All persons having in their possession or under their control any
credits or other similar personal property belonging to the party
Situs of the share of stock for purposes of attachment, in the against whom attachment is issued, or owing any debts to him, at
jurisdiction where the corporation is created. Kini gung the time of service upon them of the copy of the writ of attachment
garnishment, force intervention, kay three persons are involved, and notice as provided in the last preceding section, shall be liable
plaintiff, defendant, and third person. The third person will be to the applicant for the amount of such credits, debts or other
forced to hold on to the property until the case is terminated. Kung similar personal property, until the attachment is discharged, or
ang third person mo deliver sa property belonging to the debtor, any judgment recovered by him is satisfied, unless such property is
malas siya because he is going to pay the plaintiff plus contempt of delivered or transferred, or such debts are paid, to the clerk,
court. sheriff, or other proper officer of the court issuing the attachment.

What is the test to determine whether debt or credit or other Situation—persons having in possession or under their control any
personal property not capable of manual delivery may be credits or other similar personal property belonging to the party
garnished? The test is whether the defendant could maintain an against whom attachment is issued.
action against the said association for the recovery of the specific
debt, credit or personal property. Mere equitable or contingent Pananglitan ang defendant naa siya’y property in the possession of
debt, credit or personal property cannot be attached. There must a third person, so e-attach ang property, what is the effect?
11
Pananglitan ang defendant naay bank deposit, gipa hibaw ang As I said kung mamatay ang ginikanan, ang properties ari sa mga
bangko unya ni confirm ang bangko, yes we have 100,000 here in anak, there may be testate kung naay will or intestate succession
our records, so what is the effect? It says notice as provided in the kung walay will. So kung sa will naay executor, the executor of the
last preceding section, shall be liable to the applicant for the will shall be in charge of the property, if none then administrator.
amount of such credits, debts or other similar property , until the E-attach ang share sa one of the heirs, devisee or legatee, what is
attachment is discharged, or any judgment recovered by him is the effect on the executor or administrator? The rule says it shall
satisfied. Kung na discharge na gani ang attachment, kay ni post not impair the powers of the executor, administrator or other
ug bond or ni deposit ug cash, aw e-release na to sa bangko. Kung personal representative, etc.What is the duty of the personal
katong third person in the possession of the property, or in representative? Report the attachment to the court when nay
possession of the property of the debtor, e-release na sad ang petition for distribution is filed.
property.
Sec. 10. Examination of party whose property is attached
Another effect, pananglitan the debtor has huge amount of money and persons indebted to him or controlling his property;
deposited with the court, pildi ang debtor, gibaylo niya, satisfied. delivery of property to sheriff.
Of course katong deposit niya sa bangko, ma release to kay
satisfied na man. Property in custodia legis, kung ma satisfied, of Any person owing debts to the party whose property is attached or
course-release na sa clerk of court. having in his possession or under his control any credit or other
personal property belonging to such party, may be required to
Judgment-creditor may bring action against the garnishee. attend before the court in which the action is pending, or before a
Gipahibaw na ang bangko nga naa bay deposit diha? Naa. Ingon commissioner appointed by the court, and be examine on oath
ang court ayaw ug e-release until mahuman ning kasuha, final and respecting the same. The party whose property is attached may
executory na gani, writ of execution will be released. Suppose sige also be required to attend for the purpose of giving information
pa gani ang kaso gi release sa bangko, unsa may mahitabo? The respecting his property, and may be examined on oath. The court
judgment creditor may proceed against the bank or may proceed may, after such examination, order personal property capable of
against third person in possession of the property of the debtor. manual delivery belonging to him, in the possession of the person
so required to attend before the court, to be delivered to the clerk
Sec. 9. Effect of attachment of interest in property of the court or sheriff on such terms as may be just, having
belonging to the estate of a decedent. reference to any lien thereon or claim against the same, to await
the judgment in the action.
The attachment of the interest of an heir, legatee, or devisee in the
property belonging to the estate of a decedent shall not impair the
power of the executor, administrator, or other personal
If a person is indebted to a party against whom attachment is
representative of the decedent over such property for the purpose
issued, he may be required to attend before the court and be
of administration. Such personal representative, however, shall
examined on oath respecting the same.
report the attachment to the court when any petition for
distribution is filed, and in the order made upon such petition,
Pananglitan naay report, ang kana nga property 6x6 truck, ang
distribution may be awarded to such heir, legatee, or devisee, but
tag-iya ana defendant, dili ako ni, gipalit nani nako, unya dili ma
the property attached shall be ordered delivered to the sheriff
attach, so that person will be directed to appear under oath, unsa
making the levy, subject to the claim of such heir, legatee, or
man, asa man imong deed of sale diha? Kanus-a man ni mapalit?
devisee, or any person claiming under him.
So mabuking gani siya, hagoy wa man diay ni gi-convey to that
third person, so that the property will be attached.

12
Naay naka utang sa defending party, he denied, ah dili na tinuod, goods, naay oranges, naay apples, etc., gi-attach niya, sige tago-e
wa koy utang niya, so he may also be called to appear before the san a diha, wa na sunod balik sa sheriff namunga na. So the
court or even before a commissioner so that he can be interrogated perishable property may be sold at public auction.
relative to the debt he owed to the defending party.
Very interesting case, not very recently decided, ang gi-attach sa
So the party whose property is attached may also be required to bangko office equipments, including laptops and computers,
attend for the purpose of giving information respecting his motion to sell the property. So the main issue is kaning laptop,
property, and may be examined on oath. kaning other equipments perishable ba ni? Kung perishable gani,
diba malata. So naglibog ang SC, nag research sila sa Federal
Ang defendant abtik pa sa manatad, ingon siya wa koy property sa Court decision of the US, nangita pa sila ug decisions sa State
Mindanao, wa koy unsa diha, sige siya ug deny. So he may be Courts, naa sila’y nakit-an. Ang issue is whether or not it is
called, appear before this court unya e-interrogate siya, e-cross perishable is a question of fact, so no hard and fast rule. But in
examine, diba duna man kay property sa Davao? Nakay beach club that case, SC said it is perishable. Palit gud mo karon ug laptop or
didto, so trabaho na na sa creditor or winning party. Supposed the tablet, ug e-attachna, ganahan paka ana 10 years from now? Di ba
garnishee, ang kaning third person denies the debt, wa man koy kaha obsolete na? o that is perishable, perishable na so ibaligya
utang, or claims the property, ako man ni dili man ni sa defending gyud na siya kay ma worthless na na siya after the judgment shall
party, can the court compel him to pay the money for the property have become final and executory.
to the sheriff? The answer is no. Unsa may solution? The court may
authorize the attaching party to file an action to recover the money Sec. 12. Discharge of attachment upon giving counterbond.
or property.
After a writ of attachment has been enforced, the party whose
Sec. 11. When attached property may be sold after levy on property has been attached, or the person appearing on his behalf,
attachment and before entry of judgment. may move for the discharge of the attachment wholly or in part on
the security given. The court shall, after due notice and hearing,
Whenever it shall be made to appear to the court in which the order the discharge of the attachment if the movant makes a cash
action is pending, upon hearing with notice to both parties, that the deposit, or files a counter-bond executed to the attaching party
party attached is perishable, or that the interests of all the parties with the clerk of the court where the application is made, in an
to the action will be will be subserved by the sale thereof, the court amount equal to that fixed by the court in the order of attachment,
may order such property to be sold at public auction in such exclusive of costs. But if the attachment is sought to be discharged
manner as it may direct, and the proceeds of such sale to be with respect to a particular property, the counter-bond shall be
deposited in court to abide the judgment in the action. equal to the value of that property as determined by the court. In
either case, the cash deposit or the counter-bond shall secure the
payment of any judgment that the attaching party may recover in
The general rule is if a property is attached it should not be sold. the action. A notice of the deposit shall forth with be served on the
Huwaton nga mahuman ang kaso, then the property will be sold at attaching party. Upon the discharge of an attachment in
public auction if the defendant cannot pay. Kung maka bayad siya, accordance with the provisions of this section, the property
release. So dili gyud na ibaligya kay security raman na, there are attached, or the proceeds of any sale thereof, shall be delivered to
two exceptions where property or properties attached may be sold the party making the deposit or giving the counter-bond, or to the
at public auction even before judgment. person appearing on his behalf, the deposit or counter-bond
It’s found in section 11, property attached is perishable- sige ug aforesaid standing in place of the property so released. Should
pangita ang sheriff, ngari sa Register of Deeds, ngari sa Assessor’s such counter-bond for any reason to be found to be or become
Office, wa gyud. Adto siya ug bodega, naa may daghan kaayong insufficient, and the party furnishing the same fail to file an
13
additional counter-bond, the attaching party may apply for a new is insufficient. Motion to discharge, what is the ground? Improperly
order of attachment. or irregularly issued. So you have to prove nga kulang man, wa
lagi bond, way affidavit, so improper. Unya you may alleged, I did
not dispose my property in fraud of creditors, infact sige paman
If you are the defendant or party against whom attachment is gani ko ug pamalit. The plaintiff can go after the properties I
issued, you may post a counter-bond. You may also deposit cash, owned now so pwede ma discharge.
we discussed this already. How much? In an amount equal to that
fixed by the court, in the order of attachment, exclusive of the Suppose the bond is insufficient, will that mean automatic
costs. If you deposit cash, the cash shall be delivered to the party discharge of the writ of attachment or order of attachment? The
making the deposit or giving the counter-bond, or to the person answer is no, why? Kung insufficient ang attachment bond, make
appearing on his behalf, the deposit or counter-bond aforesaid the bond good or sufficient, you have 15 days to do it, if the
standing in place of the property so released. What is the effect on plaintiff cannot post sufficient bond, then the property attached will
discharge of the property attached? Gi-attach nimo ang property, be released. That is section 13.
discharge na, or e-uli sa imo, its already discharge. So if it is
discharged, the released property becomes free and no longer Remedy to contest extra issuance of the writ of attachment is a
liable. In a case, kung na release na ang motor vehicles kay ni motion to discharge attachment as a pre-requisite to certiorari.
deposit ug cash, free na to nga motor vehicles, they can be Meaning you file a motion to discharge, denied by the court, there
mortgaged or they can be sold. is abuse of discretion, so what is the next step? File a petition for
certiorari under Rule 65.
Sec. 13. Discharge of attachment on other grounds.
Next, this phrase is important, the merits of the main action are
The party whose property has been ordered attached may file a not triable in a motion to discharge attachment. Remember kining
motion with the court in which the action is pending, before or attachment is only an incident of the main action, dili siya trial on
after levy or even after the release of the attached property, for an the merits. So the cause of action, kining trial on the merits,
order to set aside or discharged the attachment on the ground that cannot be defeated for an order to release or discharge
the same was improperly or irregularly issued or enforced, or that attachment. Pananglitan, X vs. Y, ni state si X sa iyang cause of
the bond is insufficient. If the attachment is excessive, the action. Unya si defendant Y filed a motion to discharge the
discharge shall be limited to the excess. If the motion be made on attachment, ingon si defendant the order of attachment and the
affidavits on the part of the movant but not otherwise, the writ of attachment must be discharge, why? Because you plaintiff
attaching party may oppose the motion by counter-affidavits or has no cause of action. Sipyat ang judge, gi discharge ang
other evidence in addition to that on which the attachment was attachment, kay ang plaintiff no cause of action, unsa may
made. After due notice and hearing, the court shall order the mahitabo? Mere motion lang sa attachment, tapos na ang main
setting aside or the corresponding discharge of the attachment if it case kay wa may man kahay cause of action ang plaintiff, so that
appears that it was improperly or irregularly issued or enforced, or is not allowed. So in the hearing of the discharge of a writ of
that the bond is insufficient, or that the attachment is excessive, attachment, the court should not touch on the merits of the case,
and the defect is not cured forthwith. there should be a full-blown hearing, except of course if there is a
ground for filing a motion or summary judgment or motion for
judgment on the pleadings.
This is another way of discharging of attachment. You have to file
So dismissal of the main action means dissolution of the writ of
an affidavit and prove that the attachment or order of attachment
attachment.
was improperly or irregularly issued or enforced, or that the bond

14
6/22/12 Part 1 This is exactly the same under Rule 39: Third party claims. What is
the mandate of the writ of attachment? Attach only the property of
Rule 57 Sec. 14 the debtor and the debtor only, usually the defendant or the party
against whom the writ of attachment is served. So if you are the
Section 14. Proceedings where property claimed by third 3rd person, your property is attached, and you’re not a party to the
person. — If the property attached is claimed by any person action, the property does not belong to the defendant or the party
other than the party against whom attachment had been to which writ of attached is served, the remedy is to file an
issued or his agent, and such person makes an affidavit of affidavit of a 3rd party claim. He should state his affidavit, his title
his title thereto, or right to the possession thereof, stating to the property attached, if no title, his right to possession to said
the grounds of such right or title, and serves such affidavit property. He shall also state the grounds of such right or title. He
upon the sheriff while the latter has possession of the will serve copies of the affidavit of third party claim to the sheriff
attached property, and a copy thereof upon the attaching while the sheriff has possession of the attached property. Repeat,
party, the sheriff shall not be bound to keep the property serve him only when he is still in the possession of the property or
under attachment, unless the attaching party or his agent, else he should be served a copy of the of the third party claim
on demand of the sheriff, shall file a bond approved by the answer the attaching party.
court to indemnify the third-party claimant in a sum not less
than the value of the property levied upon. In case of If you are the sheriff, a third party claim is final are you going to
disagreement as to such value, the same shall be decided by proceed or not? It depends. The sheriff may proceed if he firmly
the court issuing the writ of attachment. No claim for believes that the property claimed by the 3rd party is really the
damages for the taking or keeping of the property may be property of the judgment or rather of the debtor or the party
enforced against the bond unless the action therefor is filed against whom attachment his made but at his own risk. If he’s
within one hundred twenty (120) days from the date of the afraid that he may be held liable, then he should require the
filing of the bond. attaching property to post bond. The bond shall be approved by
the court. What is the purpose of the bond put up by the attaching
The sheriff shall not be liable for damages for the taking or party? The purpose is to indemnify the 3rd party claimant in a sum
keeping of such property to any such third-party claimant, if not less than the sum or less than the value of the property
such bond shall be filed. Nothing herein contained shall attached. Suppose there’s disagreement in the value of the
prevent such claimant or any third person from vindicating property attached? The court shall decide how much is the value of
his claim to the property, or prevent the attaching party the property.
from claiming damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in the same or a Please take note also when to claim for damages. Last sentence of
separate action. par.1, no claim for damages for the taking or levying of the
properties may be enforced against the bond unless the action is
filed within 120 days from the date of the filing of the bond,
When the writ of attachment is issued in favor of the
beyond 120 days you can no longer enforce the bond. If there is
Republic of the Philippines, or any officer duly representing
already a bond posted by the creditor or plaintiff attaching
it, the filing of such bond shall not be required, and in case
property, the sheriff shall not be liable for damages for the taking
the sheriff is sued for damages as a result of the
or keeping of such property to any 3rd party claimant if such bond
attachment, he shall be represented by the Solicitor
shall be filed. Even if there’s no bond, the sheriff may proceed at
General, and if held liable therefor, the actual damages
his own risk, even if it turned out that the property belongs to the
adjudged by the court shall be paid by the National
3rd party claimant, then he alone shall be held liable.
Treasurer out of the funds to be appropriated for the
purpose. (14a)
15
Aside from filing an affidavit of 3rd party claim, what is the other satisfy the balance, if enough for that purpose remain
remedy for the 3rd party claimant? He may file a separate civil in the sheriff's hands, or in those the clerk of the
action to protect his interest or to recover the property attached, it court;
is found in the 2nd paragraph, nothing herein contained shall
prevent such claimant or 3rd person from vindicating his claim to (c) By collecting from all persons having in their
the property or prevent the attaching party from claiming damages possession credits belonging to the judgment obligor,
against, so in the 2rd paragraph, sheriff shall not be held liable if or owing debts to the latter at the time of the
such bond shall be filed. So how about the 3 rd party claimant? attachment of such credits or debts, the amount of
Nothing herein contained shall prevent such claimant or any 3 rd such credits and debts as determined by the court in
person from vindicating his claim to the property. So what is the the action, and stated in the judgment, and paying
meaning of this? He may file a separate civil action to protect his the proceeds of such collection over to the judgment
interest. obligee.

How about the attaching party? Suppose the claim of the 3rd party The sheriff shall forthwith make a return in writing to the
claimant is frivolous or plainly spurious? The attaching party may court of his proceedings under this section and furnish the
also be allowed to file an action or in the same case on a separate parties with copies thereof. (15a)
action, to recover damages.
I would like to stress when to file for 3 rd party claims. While the
Now when the writ is issued in favor of the republic or any official
sheriff has possession of the properties levied upon, in Sec. 15
representing the republic, bond is not required. What is the
satisfaction of judgment out of property attached, properties which
reason? It’s because you learned in political law, the RP is
are perishable may have been sold already and the proceeds will
presumed to be sovereign. If there is a suit against the Republic,
be deposited in court. The sheriff must have attached several
or the officer representing it, who will represent the respondent or
properties of the defending party either personal or real properties.
defendant? The SolGen because he is the lawyer of the
So how shall a sheriff proceed? The sheriff will cause the judgment
government. If actual damages will be awarded by the court, then
to be satisfied out of the property attached if it be sufficient for
it will be paid by the national treasurer out of the funds to be
that purpose. Suppose proceeds of perishable properties deposited
appropriated for that purpose.
to the court is 500k, and the amount stated in the judgment is
500k, of course the 500k will be applied to the amount mentioned
Section 15. Satisfaction of judgment out of property in the judgment.
attached, return of sheriff. — If judgment be recovered by
the attaching party and execution issue thereon, the sheriff
Suppose the proceeds of the same case, 500k, but the judgment is
may cause the judgment to be satisfied out of the property
1M, what should be done next? If there is a balance, the sheriff
attached, if it be sufficient for that purpose in the following
must sell so much of the property, real or personal, as may be
manner:
necessary to satisfy the balance. But the sheriff or court is in
possession of real or personal property of judgment debtor, so
(a) By paying to the judgment obligee the proceeds of what will be done to such property? It must be sold in public
all sales of perishable or other property sold in auction to satisfy the balance.
pursuance of the order of the court, or so much as
shall be necessary to satisfy the judgment; The sheriff may also garnish the property of the judgment debtor
in the hands of a 3rd person. This is garnishment, 3 parties:
(b) If any balance remains due, by selling so much of Creditor, Debtor, 3rd party. The sheriff must collect from all persons
the property, real or personal, as may be necessary to
16
having in their possession credits belonging to the judgment properties first, then if not enough, real properties. Suppose the
obligor or owing debts to the latter at the time of attachment of sheriff was able to attach properties to be sold in a public auction,
such credits or debts, the amount of such credits or debts as 10 properties, then 5 properties were sold, enough to satisfy the
determined by the courts in the action and as stated in the balance. What should be done with the unsold properties? Of
judgment. So let us assume that properties attached were already course they will be returned to the judgment debtor.
sold, but there is still balance. If the judgment debtor has
properties in the possession of a 3rd person, that 3rd person is Section 17. Recovery upon the counter-bond. — When the
obliged to surrender the property so it may be sold in a public judgment has become executory, the surety or sureties on
auction to satisfy the balance. Suppose the judgment debtor has any counter-bond given pursuant to the provisions of this
bank deposits, what shall be done? The court could ask the bank if Rule to secure the payment of the judgment shall become
the judgment debtor has deposits, the bank would answer “yes, charged on such counter-bond and bound to pay the
this much”, so the bank should not release the amount to the judgment obligee upon demand the amount due under the
judgment debtor. Question, how shall the court acquire jurisdiction judgment, which amount may be recovered from such
over the person of the garnishee, like for example the bank? surety or sureties after notice and summary hearing in the
Should the court issue summons to the bank or the 3 rd person in same action. (17a)
possession of the property of the judgment debtor? Not necessary.
If the bank receives a copy of the order, then the court has already Then recovery upon the counter bond, remember the debtor or
acquired jurisdiction over the person of the 3rd party. person against whom attachment is issued may file a counter
Then task of the sheriff: make a return in writing to the court of his bond. Rule says when judgment has become executory, the surety
proceedings and furnish the parties copies thereof. What is a or sureties on any counter bond given pursuant to the provision of
return? It is simply the report of the sheriff of what happened to this rule to secure the payment of judgment shall become charged
the writ of attachment. on such counter bond, you know the purpose of the counter bond
that is to satisfy the judgment. So the bonding company will pay
Section 16. Balance due collected upon an execution; excess the judgment debtor but there must be due process before the
delivered to judgment obligor. — If after realizing upon all bonding company or the bonds man will be held liable, he must be
the property attached, including the proceeds of any debts informed and there shall be a hearing to determine his liability on
or credits collected, and applying the proceeds to the the bond. But under the new rule the surety on the counter bond is
satisfaction of the judgment less the expenses of solidarily liable with the judgment obligor so condition or purpose
proceedings upon the judgment any balance shall remain of counter bond to secure the payment of any judgment that the
due, the sheriff must proceed to collect such balance as attaching party may recover in the action. May the defendant or
upon ordinary execution. Whenever the judgment shall have may the winning party file a separate action? Is she allowed to file
been paid, the sheriff, upon reasonable demand, must a separate action to recover under the bond? The answer is NO.
return to the judgment obligor the attached property Separate action to recover from the surety is not necessary,
remaining in his hands, and any proceeds of the sale of the proceed against the bond in the same proceeding. But as I said
property attached not applied to the judgment. (16a) there must be due process, surety should be given opportunity to
the heard.
Suppose, proceeds have already been delivered to the debtor,
properties are already sold to the balance, sheriff garnished the Section 18. Disposition of money deposited. — Where the
properties of the debtor, but there is still a balance. What’s next? party against whom attachment had been issued has
The rules says, the sheriff must proceed to collect such balance as deposited money instead of giving counter-bond, it shall be
upon ordinary execution, maybe the sheriff will levy the real or applied under the direction of the court to the satisfaction of
personal properties of the debtor to satisfy the balance. Personal any judgment rendered in favor of the attaching party, and
17
after satisfying the judgment the balance shall be refunded awarded only after proper hearing and shall be included in
to the depositor or his assignee. If the judgment is in favor the judgment on the main case.
of the party against whom attachment was issued, the
whole sum deposited must be refunded to him or his If the judgment of the appellate court be favorable to the
assignee. (18a) party against whom the attachment was issued he must
claim damages sustained during the pendency of the appeal
Then this position of money deposited. You learned that to prevent by filing an application in the appellate court, with notice to
attachment the judgment debtor may deposit cash. Supposed the party in whose favor the attachment was issued or his
there already is a judgment , and there is deposit of cash, of surety or sureties, before the judgment of the appellate
course it shall be applied to the judgment issued by the court. court becomes executory. The appellate court may allow the
application to be heard and decided by the trial court.
Section 19. Disposition of attached property where
judgment is for party against whom attachment was issued. Nothing herein contained shall prevent the party against
— If judgment be rendered against the attaching party, all whom the attachment was issued from recovering in the
the proceeds of sales and money collected or received by same action the damages awarded to him from any property
the sheriff, under the order of attachment, and all property of the attaching party not exempt from execution should the
attached remaining in any such officer's hands, shall be bond or deposit given by the latter be insufficient or fail to
delivered to the party against whom attachment was issued, fully satisfy the award. (20a)
and the order of attachment discharged. (19a)
Sec. 20 – Claim for damages account of Improper, Irregular or
It’s possible that plaintiff has a cause of action; it’s possible that Excessive attachment. X vs. Y for sum of money. Judgment is in
plaintiff will prevail but supposed the plaintiff attach the property of favor of X(1 mill). But the problem is, the plaintiff, the winning
the defendant and attachment was wrongful. So plaintiff will be party secured an order of attachment but it was found improper,
held liable to the defendant on that bond, that’s Sec.18- the irregular or excessive, but defendant can recover from the plaintiff
judgment rendered against the attaching party, all the proceeds of for improper, irregular or excessive attachment. So there must be
sales and money collected or received by the sheriff, and all notice to the attaching party and the surety or sureties setting
properties attached remaining, if any, in the sheriff’s hands will be forth the facts showing his right to damages and the amount
delivered to the party against whom attachment was issued and thereof. Damages maybe awarded only after proper hearing, so
the order of attachment is charged. This is a situation where a due process, and shall be included in the judgment. You should
defendant or the party against whom attachment was issued is the never forget that judgment against the bank must be included in
prevailing party, so the money deposited will be return to him, the the judgment of the court. If the case is appealed, there is no
property attached will be returned to him. judgment yet, the sureties must be given opportunity to be heard
and application for damages against bank may also be filed in the
Section 20. Claim for damages on account of appellate court before judgment. No separate civil action will be
improper, irregular or excessive attachment. — An allowed against the bank, it must be applied in the same case and
application for damages on account of improper, irregular or before final judgment. There is a phrase here on the 2 nd paragraph,
excessive attachment must be filed before the trial or before “before the judgment becomes executory”.
appeal is perfected or before the judgment becomes
executory, with due notice to the attaching party and his But supposed, the bond put up is insufficient or there is failure to
surety or sureties setting forth the facts showing his right to fully satisfy the award, and you want to proceed against the bond.
damages and the amount thereof. Such damages may be You can still recover damages.

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Sample of a case where a defendant may recover damages the court may also award moral damages, exemplary damages and
resulting from illegal attachment even if the judgment in the main costs.
action is against him: Suppose the plaintiff, or the attaching party
executed an affidavit of attachment which is grossly There are exceptions, claim for damages in a separate action.
unfounded/false, so defendant may recover against plaintiff even if General rule: no separate action to recover damages.
judgment in the main case is in favor of the plaintiff. What else Two exceptions:
may be recovered? Loss of profits resulting from, in this case, the 2. Where the principal action is dismissed for lack of jurisdiction.
closure of the mill, then loss occasion to the goodwill of the Plaintiff filed the case against the defendant. He attached the
business in driving the away customers. property of defendant and it was found out that the court has no
So, when application for damages maybe made? Before trial it may jurisdiction over the subject matter. Remember, if the court has no
be made as of right. In such case, if made properly, meaning the jurisdiction of the subject matter it’s only jurisdiction is to dismiss
defendant or party against whom the attachment is issued, may the case. So how can defendant recover if attachment was
interpose a counter-claim against plaintiff. It is stated that the improper? This time it may be allowed to file a separate action for
order of attachment was secured through fraud there was improper damages.
attachment. May it be made after trial? Yes, but before the
judgment is entered in the book of the court. How about damages 2. Another situation, in an action of forcible entry or illegal detainer
sustained during the pendency of an appeal? It must be applied in filed in MTC. The amount of claims of damages may exceed 200k
the appellate court against the bank, but again, before final or 300k, so the amount of the plaintiff’s bond for attachment may
judgment. exceed 100k. if the defendant claims for damages exceeds 300k so
they can claim damages in a separate action. The surety must be
So procedure regarding claims for damages. In judgment against notified of the application. If no application for damages is made
the bond, like to emphasize either ________, matter of right, before the entry of final judgment then the surety of the bond is
during trial, then after judgment, but before the judgment shall relieved from liability.
become final and executory. If the judgment has already become
final and executory, no person may proceed against the bond in a The rest will be repetitious, application for damages must be
separate civil action. claimed and as retained in the same action with due notice to the
sheriff. The court must issue an order directing the surety to show
So procedure, defendant/claimant secured a favorable judgment in cause why the bond should not respond to the judgment for
the main action. Application for damages, issuing the right thereto damages. Again the rest will be repetitious, all awards for damages
and the amount thereof and then there must be due notice to the must be included in the judgment before it becomes executory.
other party and surety or sureties, then clearing and award of
damages which should be included in the final judgment. So claim
for damages resulting from an unlawful attachment must be made
in the same action otherwise it is barred.

Is it necessary to prove fraud before a party or before the court

may award damages? Is it necessary that the defendant should
prove that the plaintiff employed fraud to secure attachment? The
answer is not necessary. If the court finds that the attachment was
improper or should have not been granted, then damages will be
awarded. But if there is fraud, in addition to the damages awarded,

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 RULE 58 Then mandatory, what is the purpose? To require the performance
PRELIMINARY INJUNCTION of a particular act/acts. So it’s mandatory. The party is placed in
the same situation he was before the commission of the illegal act
complained of as if it has never been committed.
RULE 58 How about the status quo? Status quo to be resolved in the case
of mandatory injunction is the last actual and contested status
which preceded the pending controversy.
Preliminary Injunction
In general, what is a purpose of injunction? To protect the rights of
the plaintiff, respecting the subject of the action and during the
Section 1. Preliminary injunction defined; classes. — A pendency of the suit.
preliminary injunction is an order granted at any stage of an
action or proceeding prior to the judgment or final order, Warning, injunction should not be granted to take property out of
requiring a party or a court, agency or a person to refrain from a the possession of one party and placed it in the hand of another
particular act or acts. It may also require the performance of a party whose rights are not clearly defined or whose title has not
particular act or acts, in which case it shall be known as a been clearly established.
preliminary mandatory injunction. (1a)
Requisites of the Preliminary Mandatory Injunction:
Section 1 Preliminary Injunction – there may be a case for 1) Complainant has a clear, legal right. If his right is doubtful, it is
injunction with injunction. So the main case is injunction and the contested then Prelim. Mandatory Injunction should not be
plaintiff or petitioner may apply for the provisional remedy of granted.
preliminary injunction or preliminary mandatory injunction. 2) Then his right has been violated and the invasion is material and
substantial.
What is a Preliminary Injunction? When shall it be applied? It must 3) Urgent and permanent necessity to prevent damage. Right must
be applied at any stage of the action or proceeding but prior to the be clear and unmistakable not doubtful.
judgment or final order. Why? Because if there is already a So we have discussed already kinds of injunction. How do you
judgment or final order, there should be a final injunction. Then the distinguished Preventive Injunction from Prohibition?
court may require a party or agency or person to refrain from a 1. Preventive, Injunction is a provisional remedy. Prohibition is
particular act or acts. This is preliminary prohibitory injunction. I the main case.
repeat, refrain. The last sentence, 2 nd sentence is Preliminary 2. Injunction is initiated by application or motion. Prohibition is
Mandatory Injunction requiring the performance of a particular initiated by filing a petition known as a petition for issuance
act/acts, in which case shall be known as Preliminary Mandatory of a writ of prohibition.
Injunction. Which of the 2 kinds of Injunction is strictly construed? 3. Preventive Injunction is an order requiring a party litigant to
The answer is Preliminary Mandatory Injunction. refrain from a particular act. Prohibition is the judgment
commanding a tribunal etc. to desist from further
Preventive or Prohibitory injunction purpose is to desist or refrain proceeding in the action or matter specified therein because
from a particular act/acts. That a specific act soon to be enjoin has it acts without or in excess of jurisdiction amounting to lack
not yet been performed because if the act is sought to be enjoined or excess of jurisdiction.
has already been performed nothing to be enjoined. But there is an
exemption: Preliminary Mandatory Injunction. Another exception if In injunction the party applying for Injunction may recognize the
the act sought to be enjoined is continuing, then the situation jurisdiction of the court in the main case. Example sum of money.
before the issuance of prohibitory injunction is thus preserved in X vs Y. Then the court issued an order for the issuance of a writ of
status quo. attachment. Let’s say the amount is 1million. No doubt, RTC. So
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defendant cannot question the jurisdiction of the court. 1 million, court may issue Preliminary Injunction although similar injunction
RTC. But again, suppose the court issued an order of attachment has been denied by judge of another rank. Say, RTC Branch 58,
without factual and legal basis. The court committed abuse of RTC & Branch 57. Several cases were filed. RTC Branch 57 may
discretion amount. What is the remedy of the defendant? You grant. Branch 58 may not grant. We are not bound by the
should file the petition for certiorari. judgment or order of co-equal and coordinate court. That’s the
principle of Judicial Stability.
Suppose, in a case for sum of money, 200k filed with MTC, clearly
MTC has no jurisdiction, but the judge is stupid, he proceed to the What is the range of enforceability of a writ of injunction? The
trial. What is the remedy of the defendant? It should be prohibition range is within the region only. You cannot enjoin acts beyond the
because the MTC has no jurisdiction over the subject matter. region.
Prohibition therefore strikes the jurisdiction of the court. Kung
injunction, di ka mo question, ang main case is within the Attachment, range of enforceability: anywhere in the Phil.
jurisdiction of the RTC. But supposed nasayup ang RTC pataka rag X filed case against Y in Cebu City. Y has properties in Mindanao.
issue ug order of attachment, so your remedy is certiorari with Can Cebu court issue a writ to attach the property of the defendant
injunction. Prevent the court from enforcing the writ of execution. in Mindanao? Yes, a writ of attachment maybe served anywhere in
the Phil. But a writ of injunction should be not enforced beyond the
How do you distinguished Mandatory Injunction from Mandamus? region. There is one exemption, very rare exception (Delcano vs
1. Mandatory Injunction is a provisional remedy, as a rule it Edu –not sure), Court cannot interfere by injunction with judgment
cannot stand alone. Mandamus is a main case, it can stand alone. of coordinate courts, as I’ve said principle of judicial stability.
2. Mandatory Injunction is an order requiring a party litigant to Decision of Branch 58 RTC and then it is enforced or implemented ,
perform a particular act, in order to restore the last visible and can the other branch of the court enjoined the answer is NO. In
uncontested status which preceded the pending controversy. another case (Seuji vs Harvey –not sure npud!), inferior courts or
Mandamus is a judgment commanding tribunal, corporation etc. lower courts cannot change the mandate of a superior court. You
from unlawfully neglecting the performance of an act. cannot review, right or wrong, the decision of higher court
3. Mandamus is available only not against discretionary acts. tumanun jud. Lower court cannot examine nor give any other or
Mandatory Injunction is an exception to the general rule that further relief nor review upon any matter decided on appeal for
Injunction does not apply to consummated acts. error apparent. So lower court cannot intermeddle with the
4. Mandatory injunction is initiated by motion of application. judgment other than to settle so much that has been remanded.
Mandamus by petition.
Section. 3 Grounds for Issuance of Preliminary Injunction (break)
Section 2. Who may grant preliminary injunction. — A
preliminary injunction may be granted by the court where the Sec. 3. Grounds for issuance of preliminary injunction.
action or proceeding is pending. If the action or proceeding is A preliminary injunction may be granted when it is established:
pending in the Court of Appeals or in the Supreme Court, it may
be issued by said court or any member thereof. (2a) (a) That the applicant is entitled to the relief demanded, and the
whole or part of such relief consists in restraining the commission
or continuance of the act or acts complained of, or in requiring the
Who may grant Injunction? All courts but first, court where the
performance of an act or acts, either for a limited period or
action is pending. SC, CA, Sandiganbayan only in aid of its
perpetually;
appellant of jurisdiction. Then RTC, MTC, especially in forcible entry
or unlawful detainer to prevent the defendant from depriving the
plaintiff of possession of the property. Judge of the branch of trial

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(b) That the commission, continuance or non-performance of the Establish the following: applicant is entitled to the relief demanded.
act or acts complained of during the litigation would probably work That the whole or part of such relief consists in restraining the
injustice to the applicant; or commission or continuance of an act or acts complained of or
requiring the performance of an act or acts etc, etc. So prohibitory;
(c) That a party, court, agency or a person is doing, threatening, or mandatory. Then the commission, continuance or non-performance
is attempting to do, or is procuring or suffering to be done, some of the act or acts complained of would probably work injustice to
act or acts probably in violation of the rights of the applicant the applicant. Warning—there is a consistent ruling of the
respecting the subject of the action or proceeding, and tending to Supereme Court interpreting this phrase “would probably work
render the judgment ineffectual. injustice to the applicant”. So based on probability only, not on
absolute certainty. Xxx ...respecting the subject of the action.
Again, probability only, not on absolute certainty.
A few points under attachment.
A property plenary attached is property in custodia legis. The There are particular cases when preliminary injuction lies. Petition
property attached is used by the sheriff in making it liable (xxx) for relief from judgment entered through fraud, accident, mistake,
The Sheriff used an attached car in his trip outside Cebu City and excusable negligence. Kahibaw na siguro mo sa remedies: first
the car is carnapped by somebody. He [the Sheriff] is liable for remedy—set aside the order of the court; then another remedy—
malversation because the property attached is property under new trial before judgment shall become final and executory; next
custodia legis. remedy is petition for relief from judgment—there is already a
judgment, the judgment has become final and executory and in
Bond for the issuance of the writ of attachment. fact there may already be a writ of execution. The last remedy is
What is the purpose for damages by reason of issuance of a bond annulment of judgment anchored on extrinsic fraud and lack of
for lifting attachment or counterbond. What is the purpose? To jurisdiction.
secure the payment of the judgment.
Petition for relief.
Suppose there is a partial execution of judgment—will it There is fraud, accident, mistake, excusable negligence. You have
discharge the attached property? filed a petition for relief. But the court may execute the final and
No. Filing of a counterbond will not relieve plaintiff’s attachment executor judgment. So what is the remedy on the petitioner? Of
bond. Discharge of attachment is not automatic. There must be course, injunction—preliminary, prohibitory injunction. Otherwise,
hearing and there must be a court order. a writ of execution will be issued.

Note also that after the writ of attachment is discharged by the In certiorari or petition for mandamus—even if you filed a petition
counterbond, he cannot file another motion under Section 15 on for prohibition, because the court has not jurisdiction over the
ground of improper or unjustified issuance of the writ. subject matter of the action—ug naa’y judge na “ah, bahala mo uy,
padayon ta”, the judgment proceeds. In order to stop the court
Suppose the Sheriff embezzled the property of the from proceeding with the trial, you should file a petition for
defendant or the party against whom the attachment is prohibition, strike at the very jurisdiction of the court, to stop the
issued—what is the consequence? court from continuing with the trial and so file an issuance for the
It should be treated as though it had been levied upon under execution of a writ of preliminary, prohibitory injunction. Certiorari
execution. is useless, prohibition is useless, mandamus is useless if it will not
be coupled with an application for the issuance of a preliminary,
Going back to injunction—grounds. prohibitory injunction to be issued of course by the higher court.

22
Actions for annulment of judgment obtained through fraud (b) Unless exempted by the court, the applicant files with the court
How do you prevent execution of judgment? File an action for where the action or proceeding is pending, a bond executed to the
annulment with preliminary, prohibitory injunction. party or person enjoined, in an amount to be fixed by the court, to
the effect that the applicant will pay to such party or person all
Actions for annulment of judgment which are not (public damages which he may sustain by reason of the injunction or
knowledge (?)). Restrain continued breach of valid negative temporary restraining order if the court should finally decide that
obligation. Enjoin repeated trespass on land and other basis. the applicant was not entitled thereto. Upon approval of the
requisite bond, a writ of preliminary injunction shall be issued.
May criminal prosecutions be enjoined?
General rule NO. Reason—public policy. But there is a long list of (c) When an application for a writ of preliminary injunction or a
exceptions. Cases wherein preliminary injunction does not lie. No temporary restraining order is included in a complaint or any
injunction to take the property out of the control or position of one initiatory pleading, the case, if filed in a multiple-sala court, shall
party and transfer it to another person if that person has no clear, be raffled only after notice to and in the presence of the adverse
legal right. No injunction when action for nullities would adequately party or the person to be enjoined. In any event, such notice shall
compensate the injuries caused. You cannot restrain criminal be preceded, or contemporaneously accompanied, by service of
prosecution where Ombudsman had authorized a special summons, together with a copy of the complaint or initiatory
prosecutor to conduct preliminary investigation. pleading and the applicant’s affidavit and bond, upon the adverse
party in the Philippines.
Statutes or decrees prohibiting preliminary injunction.
Of course, no injunction against collection of taxes paid under However, where the summons could not be served personally or by
protest. No injunction against assets privatization trust. No substituted service despite diligent efforts, or the adverse party is
injunction against in following cases—acquisition, clearance, a resident of the Philippines temporarily absent therefrom or is a
development of right of way, bidding/awarding of contract/project nonresident thereof, the requirement of prior or contemporaneous
of national government. service of summons shall not apply.

PD 1818—no injunction against infrastructure projects—roads, (d) The application for a temporary restraining order shall
bridges, hospitals etc but there are notable exceptions. thereafter be acted upon only after all parties are heard in a
summary hearing which shall be conducted within twenty-four (24)
No injunction against Presidential Agrarian Reform Council, Sec 4 is hours after the sheriff’s return of service and/or the records are
amended. received by the branch selected by raffle and to which the records
shall be transmitted immediately.

Sec. 4 – Preliminary injunction or TRO may be granted only when

Sec. 4. Verified application and bond for preliminary verified (meaning under oath).
injunction or temporary restraining order.
Suppose, an application for injunction is not verified—may the
A preliminary injunction or temporary restraining order may be court outrightly dismiss the application? The answer is NO. Because
granted only when: the court will give the applicant a chance to have the application
under oath. So lack of verification is not jurisdictional, it is merely
(a) The application in the action or proceeding is verified, and procedural. It is a formal defect. Verification must show the facts
shows facts entitling the applicant to the relief demanded; and entitling the applicant to the relief demanded. Do not just copy
section 4 without adding any factual basis.
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Put up injunction bond executed to the party or person enjoined. injunction. Why is it necessary to furnish the adverse party a copy
Who will fix the amount to the bond? Court. What is the purpose of of the bond? So that the adverse party can except as to the
the injunction bond? That the applicant will pay such party or sufficiency of the bond. Unsa man ni na bonding company? Pag
person enjoined all that it is that he may sustain by reason of the tan-aw niya sa directory—uy, mura’g dugay na man ni na defunct.
injunction or TRO if the court should finally decide that the 2001 pa ni. Gi verify niya sa Securities and Exchange Commission
applicant was not entitled thereto. It’s not necessary to allege –wala na, defunct bonding company. So mu-oppose dayon ka, sa
fraud application of the bond. You can also oppose if the bond is not
sufficient.
When an application for a writ of preliminary injunction or TRO is
included in the complaint or any initiatory pleading, filed in a Most important, there must be prior or contemporaneous service of
multiple sala court shall be raffled only after notice to and in the summons. Either before ka nakadawat, naa na’y summons or dib a
presence of the adverse party or the person to be enjoined. paghatag sa order sa imo, naa na sa’y summons. Meaning, the
court must first acquire jurisdiction over the person of the adverse
party.

Illustration: There are exceptions to prior or contemporaneous service of

Recover of real property with injunction. What is the procedure? summons. Pwede mag injunction, pwede mag TRO, pwede mag
Before that case will be raffled, the adverse party or the party application even without prior or contemporaneous service of
against whom injunction may be issued must be notified. Why? summons. Pananglitan, ang defendant mag tago-tago, unsa-on
Because there was malpractice committed by lawyers before. Kani- man nimo pag apply nga ga-tago-tago man. Dili man ka silbihan
adto, kung mangayo ka’g TRO/injunction, pwede ra magpahibaw ug summons. The rule says these are the exceptions—summons
sa Clerk of Court. Kani-adto gud, isulod man lang ug basket nga could not be served personally or by substited service despite
gamay mura bitaw’g bingon unya ibutang didto unsa man na court. diligent efforts. Kahibaw man mu unsa ning substituted servce—mu
Ang kontra di kahibaw. Naa’y mga lawyers na suki nila ang judge. adto ka’s opisina, ibilin nimo sa person in-charge in the office. Adto
Ingon ra nila tong Clerk of Court—“adto na sa Branch 53, adto na ka sa balay sa kontra, then it must be given to a person of suitable
didto.” So ni-adto mahitabo na ngano man ning abogadoha na age and discretion then residing therein. Then, adverse party is a
tanan kaso tu-a man ni Judge X? Something wrong there. Wala’y resident temporary absent therefrom. Tu-a man siya sa States,
raffle-raffle. So karon, if you file an action with injunction, no raffle unsaon man nimo pag-serve. He is beyond jurisdiction of court.
without notice. Give the adverse party a chance to witness the Next, no prior or contemporaneous service if the defendant is a
raffle. That’s it. Raffle only after notice to and in the presence of non-resident.
the adverse party.
Now, after an application for TRO is filed, what’s the next
But suppose the adverse party received a notice that the case will step?
be raffled, wa sad siya mutambong—aw mirisi sya. In any event, The court should conduct a summary hearing. All parties are heard
such notice will be preceded or contemporaneously accompanied in the summary hearing which shall be conducted within 24 hours
by the following: service of summons, copy of xxx historic after the sheriff’s return of service and all the records are received
pleading, applicant’s bond upon the adverse party. by the branch directed by the raffle and to which the records shall
be transmitted immediately.
If there is notice of raffle and you are the lawyer of the adverse
party, you should examine the following: naa ba’y applicant’s Summary hearing means—there are 2 types of hearings: non-trial
affidavit? Kung wala’y applicant’s affidavit how will you justify a type hearing and trial-type hearing. Trial-type hearing means
judgment? Gi-attach be ang injunction bond. Wa gani—no TRO, no witnesses will testify. Non-trial type—either you attach the affidavit
24
to justify the application or there may be oral argument. So mag service of summons and the documents to be served therewith.
argument lang, no witnesses. That is summary. Thereafter, within the aforesaid seventy-two (72) hours, the judge
before whom the case is pending shall conduct a summary hearing
To repeat, what is the purpose of the bond? Answers for all to determine whether the temporary restraining order shall be
damages which the party enjoined may sustain by reason of the extended until the application for preliminary injunction can be
preliminary injunction or TRO. heard. In no case shall the total period of effectivity of the
temporary restraining order exceed twenty (20) days, including the
The court may impose additional conditions. original seventy-two hours provided herein.

In the event that the application for preliminary injunction is

denied or not resolved within the said period, the temporary
restraining order is deemed automatically vacated. The effectivity
of a temporary restraining order is not extendible without need of
any judicial declaration to that effect and no court shall have
authority to extend or renew the same on the same ground for
Section 5 is amended. which it was issued.

Sec. 5. Preliminary injunction not granted without notice; However, if issued by the Court of Appeals or a member thereof,
exception. the temporary restraining order shall be effective for sixty (60)
days from service on the party or person sought to be enjoined. A
No preliminary injunction shall be granted without hearing and restraining order issued by the Supreme Court or a member
prior notice to the party or person sought to be enjoined. If it shall thereof shall be effective until further orders.
appear from facts shown by affidavits or by the verified application
that great or irreparable injury would result to the applicant before
the matter can be heard on notice, the court to which the
application for preliminary injunction was made, may issue ex No preliminary injunction shall be granted without hearing and
parte a temporary restraining order to be effective only for a period prior notice to the party or person sought to be enjoined.
of twenty (20) days from service on the party or person sought to
be enjoined, except as herein provided. Within the said twenty-day If it shall appear from facts shown by affidavits or by the verified
period, the court must order said party or person to show cause, at application that great or irreparable injury will result to the
a specified time and place, why the injunction should not be applicant before the matter can be heard on notice, the court which
granted, determine within the same period whether or not the the application for preliminary injunction was made may issue ex
preliminary injunction shall be granted, and accordingly issue the parte a TRO to be effective only for a period of 20 days from serve
corresponding order. on the party or person sought to be enjoined except as herein
provided.
However, and subject to the provisions of the preceding sections, if
the matter is of extreme urgency and the applicant will suffer So the affidavit of the allegations in the petition must show great
grave injustice and irreparable injury, the executive judge of a or irreparable injury. Please take note of OR, not AND. Importante
multiple-sala court or the presiding judge of a single-sala court kaayo nang distinction. Pwede ra mu-allege na great. Pwede ran a
may issue ex parte a temporary restraining order effective for only mu-allege irreparable.
seventy-two (72) hours from issuance but he shall immediately
comply with the provisions of the next preceding section as to
25
So court may issue injunction with a lifetime of 20 days only. I issue 72-hour TRO. But in places when there is only one RTC,
mean, TRO. 20 days only. Pananglitan i-demolish na imong balay, single-sala court...
tagaan ka’g isang simana, to move out from the house...mu file
ka’g kaso, mangayo ka’g TRO. Tagaan ka’g TRO 20 days. Mulapas Example of 72-hour TRO
ang 20 days unsa man ang buhaton sa imong kontra? Your house I’ll give you an example of a 72-hour TRO. One morning, ni-abot
will be demolished kay ang lifetime is only 20 days. So what are ang bulldozer, backhoe, naa’y 30 carpenters, naa sila’y martillo,
you going to do? Before the expiration of the 20-day period, you gabas. Mu ingon dayon sila—kutob ra ka karon ha? Ugma, guba na
should apply for the issuance of a writ of injunction. The rule says ning balay nimo; order ni Mayor. Unya mu-apply ka 20 day TRO,
within the 20-day period, the court must order the party or person guba na. Di ba? So what are you going to apply? 72-hour TRO.
to show-cause why injunction should not be granted. Executive judge ra gyud na’y maka grant. Kinahanglan skilful
kaayo ka, mayo kaayo ka muhimo sa imo pleading kay kung mu
Ngano man nga ang applicant dili man siya mu show-cause? Ang sipyat ka’g one word, unya strikto ang judge sa procedure—denied.
defendant naman nuon? Show-cause why injunction should not be Guba ang balay. No hearing—kay 72-hour man. Mulapas na man
granted. ang 72 hours, guba na sad ka. So what are you going to do if you
are the defending party? Ask that the 72-hour TRO be extended up
Then the court shall determine within the same period W/N to the 20th day. Hapit na sad mulapas ang 20 days. Guba na ang
injunction shall be granted and accordingly issue the corresponding balay. This time you can ask for the issuance of preliminary,
order. So oral argument...the court issues the order, before the prohibitory injunction.
expiration of the 20-day period. So on the facts stated, the
issuance of injunction is in order. In no case will the total period of the effectivity of a TRO exceed 20
days, including the original 72 hours. So kanag 72 hours—3 days.
Is there an injunction which may be granted without Pila nalang nabilin? 17.
hearing?
Naa ba? Kung TRO pwede ex parte. Before the expiration In the event that the application for preliminary injunction is
mangayo ka’g injunction, there must be hearing. Is there a TRO or denied, or not resolved within the said period, the TRO is deemed
injunction without a hearing? Yes, which is known as a 72-hour automatically vacated. Meaning 20-day TRO mulapas na,
TRO. automatically vacated.

When is a 72-hour TRO granted? Is there a need for a court order?

The rule is very clear. If the matter is of extreme urgency, and the Na o, lapas na man, order, proceed. Automatic na, din a kailangan
applicant will suffer grave justice and irreparable injury. Dili na ni ug court order.
OR, naa na ni AND. So unsa man i-allege nimo? Extreme urgency.
Kung kutob ra ka diha, no 72-hour TRO. Kung ang i-allege nimo May the 20-day period be extended?
the applicant will suffer grave injustice and irreparable injury. If The answer is NO. The rule says it cannot be extended. It says that
you allege only grave injustice, no 72-hour TRO. If mabusisi ang the effectivity of a TRO is not extendible without any need for the
judge—wala gyu’y makalusot if kuwang. Because the rule must be petition, declaration, to the effect.
strictly construed against the applicant.
No court shall have the authority to extend or renew the same on
So who is authorized to issue a 72-hour order? the same ground for which it was issued. Pwede, you allege other
Only the executive judge of a multiple-sala court or a judge of a grounds. The only problem is defenses and objections not pleaded
single-sala court. Cebu? Multiple-sala court. There is only one RTC in the answer are deemed waived.
but there are several branches. So only the executive judge can
26
Now TRO issued by the Court of Appeals. Now Section 6—Grounds for objection. Ground for dissolution of
injunction.
What is the lifetime?
RTC 60 ha. CA, 60 days from service to the party or person sought Sec. 6. Grounds for objection to, or for motion of dissolution
to be enjoined. Kung ang TRO gi-issue sa Supreme Court, no life of, injunction or restraining order.
time...a restraining order issued by the SC shall be effective until
further orders. The application for injunction or restraining order may be denied,
upon a showing of its insufficiency. The injunction or restraining
Trial Court, CA, Sandigan, CTA that issued a write of preliminary order may also be denied, or, if granted, may be dissolved, on
injunction against a lower court or officer or quasi-judicial agency other grounds upon affidavits of the party or person enjoined,
shall preside the main case for petition within 6 months from the which may be opposed by the applicant also by affidavits. It may
issuance of the writ. further be denied, or, if granted, may be dissolved, if it appears
after hearing that although the applicant is entitled to the
We have been talking about irreparable injury. There are several injunction or restraining order, the issuance or continuance
definitions pero ang uban labo kaayo. Usual—species of injury thereof, as the case may be, would cause irreparable damage to
whether great or small that ought not to be submitted to on one the party or person enjoined while the applicant can be fully
hand or inflicted in the other. Kasabot mo ana?—wa. Because it is compensated for such damages as he may suffer, and the former
so large on one hand or so small on the other in such constant and files a bond in an amount fixed by the court conditioned that he will
frequent recurrence that no fair or reasonable redress can be had pay all damages which the applicant may suffer by the denial or
therefore in the court of law. Ga tuyok-tuyok. the dissolution of the injunction or restraining order. If it appears
that the extent of the preliminary injunction or restraining order
Ari ta sa simple definition of irreparable injury. Not capable of granted is too great, it may be modified.
pecuniary estimation. Mao ra gyud na. So irreparable injury is that
where there is no standard by which is the amount that we First ground under Section 6. Injunction TRO upon a showing of it’s
measure with reasonable accuracy that means it is not susceptible insufficiency (meaning lacks factual and legal basis) then execute
to pecuniary estimation. affidavit of party or person enjoined. The injunction shall not be
granted, it shall be opposed by counter-affidavit.
Now courts should not issue an order of injunction which will touch
or resolve the main case. X versus Y. Niingon si X, I am the owner Next ground. If it appears after hearing that although the applicant
of the property. Ingon si Y, no I am the owner of the property. X is entitled to the injunction or TRO, the issuance or continuance
filed an application for injunction. Niingon dayno ang court, thereof as it is, may cause irreparable damage or injury to the
application granted because plaintiff, not defendant is the owner of party or person enjoined while the applicant can be fully-
the property. Unsa man ang nahitabo sa main case? Gi resolve compensated for such damages. But a bond must be posted.
daan! Kay ngano? Mere motion, gi resolve na ang main case nga Plaintiff filed an application for the issuance of a writ of injunction.
who is the owner. Dila na pwede. Pareho na sa attachment nga If it will be granted, the party sought to be enjoined will suffer
attachment is granted because it is really the plaintiff who is the great or irreparable injury and the applicant can be fully
owner of the property. Tapos ang kaso. Kay duna na ma’y compensated sa iyang complaint—naa ma’y damages...but in this
pronouncement daan sa motion. situation, there must be a bond filed. What is the purpose of the
bond? That the adverse party will pay all damages which the
applicant will suffer with the denial or dissolution of the injunction.

27
Suppose the TRO or injunction is great. Too great, what shall be
done? It may be modified.
If you are the plaintiff-applicant, you filed an injunction bond.
Filing of counterbond to dissolve injunction is not a matter of right. Defendant does not want injunction to be granted, he may post
counterbond. Ang plaintiff will furnish the defendant a copy of his
bond. What is the the purpose? So that the defendant can except
as to the sufficiency of the fund.
Sec. 7. Service of copies of bonds; effect of disapproval of
same. The party who filed the counterbond must furnish the applicant or
plaintiff a copy of the counterbond to give the plaintiff a change to
The party filing a bond in accordance with the provisions of this except to the sufficiency of the bond.
Rule shall forthwith serve a copy of such bond on the other party,
who may except to the sufficiency of the bond, or of the surety or Suppose the bond posted is insufficient. What shall be done? The
sureties thereon. If the applicant’s bond is found to be insufficient court will give the party a chance to make the bond sufficient.
in amount, or if the surety or sureties thereon fail to justify, and a Order: plaintiff or defendant is given a period of 20 days from
bond sufficient in amount with sufficient sureties approved after receipt of this order to make the bond sufficient.
justification is not filed forthwith, the injunction shall be dissolved.
If the bond of the adverse party is found to be insufficient in Suppose the party failed to submit a sufficient bond. Of course the
amount, or the surety or sureties thereon fail to justify a bond injunction will be dissolved.
sufficient in amount with sufficient sureties approved after
justification is not filed forthwith, the injunction shall be granted or The judgment will include damages against party and sureties.
restored, as the case may be. Balik-balik lang ni. Mangayo gani ka’g damages against the bond—
must be before the trial, during the trial, after the trial but before
finality of judgment. No separate action against the bond. No
separate case. It must be applied. And the judgment against the
Sec. 8. Judgment to include damages against party and bond must be included in the judgment.
sureties.
Remedy here is exclusive. Praying for damages, etc must be
At the trial, the amount of damages to be awarded to either party, presented in the principal action and judgment therefore must be
upon the bond of the adverse party, shall be claimed, ascertained, included in the executory judgment of the case.
and awarded under the same procedure prescribed in section 20 of
Rule 57. Why is a separate action against the bond not allowed?
To prevent multiplicity of suits.

Sec. 9. When final injunction granted. Final injunction.

If after the trial of the action it appears that the applicant is We’ve been talking about preliminary injunction. Naa na gani’y
entitled to have the act or acts complained of permanently judgement, it cannot be called preliminary anymore. That is final
enjoined, the court shall grant a final injunction perpetually injunction. That’s Section 9.
restraining the party or person enjoined from the commission or
continuance of the act or acts or confirming the preliminary When shall the court issue a final injunction?
mandatory injunction. Rule says if after the trial of the action it appears that the appellant
is entitled to have the act or acts complained of then the court
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 RULE 59 - END –
RECEIVERSHIP
shall grant final injunction perpetually restraining the party or
person enjoined from commission or continuance of the act or acts Receivership is the only provisional remedy which is available at
or confirming the preliminary mandatory injunction. the time of the commencement of the action, after judgment and
even after the judgment has become final and executory.
Other notes under injunction.
As I said, injunction may be an action itself coupled with This is primarily to preserve and conserve the property in litigation.
preliminary injunction. So injunction—main case; provisional
remedy—preliminary injunction. It may also be preliminary, How many receivers can be appointed?
mandatory injunction.  One or more receivers.

How do you challenge preliminary injunction? What shall be put under receivership?
Certiorari. Grave abuse of discretion amounting to lack or excess of  Property subject of the action or proceeding only
jurisdiction.
What court will appoint?
In the family, no injunction may be granted.  Court where the action is pending: SC , CA, RTC and MTC

Cases involving or growing out of labor disputes.

Section 1. Appointment of receiver.
No court shall have jurisdiction to issue TRO, etc involving or Upon a verified application, one or more receivers of the property
growing out of the issuance of approval, disapproval or suspension subject of the action or proceeding may be appointed by the court
of concessions, licenses, permits. where the action is pending, or by the Court of Appeals or by the
Supreme Court, or a member thereof, in the following cases:
PD385—no injunction against foreclosures so that institutions are
not denied cash. (a) When it appears from the verified application, and such other
proof as the court may require, that the party applying for the
Sequestration—only Sandigan can issue injunction in sequestration appointment of a receiver has an interest in the property or fund
cases. which is the subject of the action or proceeding, and that such
property or fund is in danger of being lost, removed, or materially
How do you distinguish injunction from a status quo order? injured unless a receiver be appointed to administer and preserve
There are instances when the SC will issue a status quo order it;
usually without bond. Kung injunction gani, there is a bond. What (b) When it appears in an action by the mortgagee for the
is the purpose of the status quo order? It is merely intended to foreclosure of a mortgage that the property is in danger of being
maintain the last uncontested state of things which preceded the wasted or dissipated or materially injured, and that its value is
controversy. Status quo order—based on equity. Injunction order— probably insufficient to discharge the mortgage debt, or that the
based on the Rules of Court under Provisional Remedies. Unlike a parties have so stipulated in the contract of mortgage;
TRO, a status quo order is more in the nature of a cease and desist (c) After judgment, to preserve the property during the pendency
order. Kasagaran ani mga quasi-judicial agencies. of an appeal, or to dispose of it according to the judgment, or to
aid execution when the execution has been returned unsatisfied or
So the next rule will be Receivership. the judgment obligor refuses to apply his property in satisfaction of
the judgment, or otherwise to carry the judgment into effect;
29
(d) Whenever in other cases it appears that the appointment of a worth 500T was mortgaged. So if property is dissipated,
receiver is the most convenient and feasible means of preserving, then who will use? The mortgagee.
administering, or disposing of the property in litigation.
During the pendency of an appeal, the appellate court may allow 3. the parties have so stipulated in the contract of
an application for the appointment of a receiver to be filed in and mortgage
decided by the court of origin and the receiver appointed to be  There is a deed of mortgage and parties stipulated that the
subject to the control of said court. property mortgaged must be under receivership.

(c) After judgment, to preserve the property during the

In what cases? pendency of an appeal, or to dispose of it according to the
(a) When it appears from the verified application, and such other judgment, or to aid execution when the execution has been
proof as the court may require, that the party applying for returned unsatisfied or the judgment obligor refuses to apply
the appointment of a receiver has: his property in satisfaction of the judgment, or otherwise to
1. an interest in the property or fund which is the subject carry the judgment into effect;
of the action or proceeding
2. such property or fund is in danger of being lost,  What are the purposes of receivership?
removed, or materially injured unless a receiver be 1. Preserve the property during the pendency of the appeal
appointed to administer and preserve 2. Dispose of the said property according to the judgment
3. Aid execution where execution has been returned
 It does not necessarily follow that when you have an unsatisfied
interest in a case, then the court will grant a receivership 4. Judgment-obligor refuses to apply his property in
order. It must also alleged that the property under litigation satisfaction of the judgment
is in danger of being lost, removed etc 5. Carry the judgment into effect

(b) When it appears in an action by the mortgagee for the (d) Whenever in other cases it appears that the appointment of a
foreclosure of a mortgage that: receiver is the most convenient and feasible means of
1. the property is in danger of being wasted or dissipated preserving, administering, or disposing of the property in
or materially injured litigation.
 Suppose somebody borrowed money from you secured by a
real estate mortgage (a world class beach lot). You are Receivership may be a principal action like injunction in
interest with the preservation of the property that’s why you injunction with injunction. It may be the main action itself or a
agreed that the obligation be secured by said real property. provisional remedy.
Suppose that the mortgagor abandon the cottages, the
beach house is in danger of being cannibalized or eaten by As a rule, a party in litigation is not qualified to act as the
termites, so you are interested in the preservation and receiver. Neither plaintiff nor defendant. Except if parties agree in
conservation of property. Here, your remedy is receivership. writing that one of them will be appointed receiver by the court.

2. that its value is probably insufficient to discharge the Even after perfection of appeal, the court may grant receivership.
mortgage debt,
 Somebody borrowed money, secured by a mortgage. Where the action is merely to obtain a money judgment on
Amount of money borrowed is 1M and only a real property unpaid credit and not to enforce a lien on a specific property, or

30
 funds in the possession in defendant, then the appointment of a appointment without sufficient cause; and the court may, in its
receiver is improper. discretion, at any time after the appointment, require an additional
bond as further security for such damages.
Inferior courts like MTC have now jurisdiction to appoint a
receiver if the main case is within its jurisdiction. Like possession This is the only provisional remedy that may require three bond,
of or interest of real property where the assessed value is less namely:
than 20T. 1. Bond of the applicant
2. Bond of the adverse party
Receiver may be appointed to take charge not only of real but 3. Bond of the receiver
also personal properties subject matter of the litigation.
“The court shall require the applicant to file a bond to the
Who is a receiver? party against whom the application is presented”.
 A receiver is a neutral or an indifferent person. He is an  How much? In an amount to be fixed by the court.
officer in the court. His possession of the properties in  What is the purpose? That the applicant will pay such party
custodia legis. against whom receivership is issued all damages he may
sustain by reason of the appointment of such receiver in
Warning: case the applicant shall have procured such appointment
 Where the effect of the appointment of a receiver is upon a without sufficient cause.
real property out of the possession of one party before the  One of the ways of dissolving receivership is if the court
final adjudication of the right of the parties, the court should finds that the appointment was without sufficient cause.
not appoint a receiver.  The court may require additional bond.
 The prevention of imminent danger to property is the
This is a remedy if there is mal-administration of the properties. guiding principle that governs in the matter of appointing
receiver. It is necessary in granting the relief that the prop
A party applying for receivership should have an action existing of fun d be in danger of loss removal or material injury.
interest in the property in litigation and not an inchoate or
anticipatory interest
Sec. 3. Denial of application or discharge of receiver.
Appointment of a receiver is discretionary. Suppose court
committed grave abuse of discretion amounting to lack or excess The application may be denied, or the receiver discharged, when
of jurisdiction in appointing or denying receivership, the remedy the adverse party files a bond executed to the applicant, in an
is Rule 65 on Certiorari. amount to be fixed by the court, to the effect that such party will
pay the applicant all damages he may suffer by reason of the acts,
omissions, or other matters specified in the application as ground
Sec. 2. Bond on appointment of receiver. for such appointment. The receiver may also be discharged if it is
shown that his appointment was obtained without sufficient cause.
Before issuing the order appointing a receiver the court shall
require the applicant to file a bond executed to the party against
This talks about the ground for denial of application or if granted,
whom the application is presented, in an amount to be fixed by the
the ground of discharge of receiver.
court, to the effect that the applicant will pay such party all
damages he may sustain by reason of the appointment of such
receiver in case the applicant shall have procured such

31
“The application may be denied, or the receiver discharged, be insufficient in amount, or if the surety or sureties thereon fail to
when the adverse party files a bond executed to the justify, and a bond sufficient in amount with sufficient sureties
applicant” approved after justification is not filed forthwith, the application
 So this is counter-bond of the party against whom order of shall be denied or the receiver discharged, as the case may be. If
receivership is issued. How much? To be fixed by the court. the bond of the adverse party is found to be insufficient in amount
or the surety or sureties thereon fail to justify, and a bond
What is the purpose of the counter bond? sufficient in amount with sufficient sureties approved after
 Such party will pay the applicant all damages he may suffer justification is not filed forthwith, the receiver shall be appointed or
by reason of the acts, omissions, or other matters specified re-appointed, as the case may be.
in the application as ground for such appointment.
The applicant will furnish the opposing party a copy of the bond.
Another ground for the discharge of a receiver is if it is shown that The party who posted a counter bond should also furnish the
his appointment was obtained without sufficient cause. applicant a copy of the bond. The receiver should furnish the
applicant and the opposing party a copy of the bond.
What is the judicial policy on receivership?
 The appointment is a delicate matter. The power must be What the purpose? So that the party can accept to the sufficiency
exercised with extreme caution and only when of the bond. If the bond if insufficient, the court may give a party a
circumstances so demand. chance to make the bond sufficient within a reasonable period of
time. Failure to comply with the order means denial.
Sec. 4. Oath and bond of receiver.
Damages resulting from appointment of receiver vs
Before entering upon his duties, the receiver shall be sworn to damages arising after. (damages Before and after
perform them faithfully, and shall file a bond, executed to such appointment)
person and in such sum as the court may direct, to the effect that  The right to damages for procuring appointment without
he will faithfully discharge his duties in the action or proceeding just cause is statutory while the right to damages based on
and obey the orders of the court. negligence or misconduct of the receiver is founded or
arises under general principles of law.
If the receiver is already appointed, he should take oath first then
post a bond. Grounds for the denial or lifting of the order:
1. without sufficient cause
What is the purpose? 2. adverse party files sufficient bond
 So that he will faithfully discharge his duties in the action 3. bond posted by applicant is insufficient
or proceeding and obey the orders of the court. 4. bond of receiver is insufficient
 How much? To be fixed by the court

Sec. 5. Service of copies of bonds; effect of disapproval of Sec. 6. General powers of receiver.
same.
Subject to the control of the court in which the action or
The person filing a bond in accordance with the provisions of this proceeding is pending, a receiver shall have the power to bring and
Rule shall forthwith serve a copy thereof on each interested party, defend, in such capacity, actions in his own name; to take and
who may except to its sufficiency or of the surety or sureties keep possession of the property in controversy; to receive rents; to
thereon. If either the applicant’s or the receiver’s bond is found to collect debts due to himself as receiver or to the fund, property,
32
estate, person, or corporation of which he is the receiver; to Court Sheriff vs Receiver
compound for and compromise the same; to make transfers; to Sheriff Receiver
pay outstanding debts; to divide the money and other property An officer of a general character A special officer admitted in
that shall remain among the persons legally entitled to receive the who exercises his functions relation and in certain case of
same; and generally to do such acts respecting the property as the within the limits of his action whose duties are limited
court may authorize. However, funds in the hands of a receiver jurisdiction within his sphere of action. He
may be invested only by order of the court upon the written administers or protects
consent of all the parties to the action. properties in litigation only
No action may be filed by or against a receiver without leave of the does not have to take his oath required to take an oath
court which appointed him. as receiver
need not post bond required to post bond
Powers of the receiver:
1. bring and defend, in such capacity, actions in his own name Actions against receivers based on management of property cannot
2. take and keep possession of the property in controversy be withdrawn without leave of court which appointed him. // end of
3. receive rents Sarah’s
4. collect debts due to himself as receiver or to the fund,
property, estate, person, or corporation of which he is the
receiver
5. compound for and compromise the same Sec. 7. Liability for refusal or neglect to deliver property to
6. make transfers receiver.
7. pay outstanding debts
8. divide the money and other property that shall remain A person who refuses or neglects, upon reasonable demand, to
among the persons legally entitled to receive the same deliver to the receiver all the property, money, books, deeds,
notes, bills, documents and papers within his power or control,
General Power: subject of or involved in the action or proceeding, or in case of
 To do such acts respecting the property as the court may disagreement, as determined and ordered by the court, may be
authorize punished for contempt and shall be liable to the receiver for the
money or the value of the property and other things so refused or
Receivership cannot be effected with respect to property in neglected to be surrendered, together with all damages that may
custodia legis except if an executor or an administrator dissipates have been sustained by the party or parties entitled thereto as a
the property in litigation or under his administration, then any consequence of such refusal or neglect.
party may ask that the property be put under receivership.
Actions against receivers based on management of receivership
Contracts executed by the receiver without the approval of the property cannot be brought without leave of court, which appointed
court constitute his personal undertakings and obligations him during the pendency of receivership.

What is the purpose of “No action may be filed by or against So procedure in presentation of claims against receivership. File a
a receiver without leave of the court which appointed him”? petition or motion in the same proceeding in which the receiver
 To enhance the supervisory power and control by the court discharges his duties or file complaints in intervention pursuant to
over the performance of by the receiver of his duties and section 1 of Rule 19.
forestall any undue interference through improvident suits

33
In section 7, liability for refusal or neglect to deliver property to Same procedure, attachment and injunction. Section 20 Rule 57,
receiver. Once a receiver is appointed, any person who neglects or damages for the appointment of receiver should be made and
refuses to deliver to the receiver all properties under litigation prosecuted in the receivership case and cannot be subsequently
means contempt of court. For example, property under litigation, litigated in a separate action.
which is in possession of a 3rd party who is not a party to the
action, and the court directed said party to deliver the property in
litigation to the receiver. So what is the liability of the refusing
party?
1. Contempt RULE 60
2. Damages that have been sustained by the party or parties REPLEVIN
entitled thereto as a consequence of such refusal or neglect.
Sec. 1. Judgment to include recovery against sureties.
Sec. 8. Termination of receivership; compensation of
A party praying for the recovery of possession of personal property
receiver.
may, at the commencement of the action or at any time before
answer, apply for an order for the delivery of such property to him,
Whenever the court, motu proprio or on motion of either party,
in the manner hereinafter provided.
shall determine that the necessity for a receiver no longer exists, it
shall, after due notice to all interested parties and hearing, settle
the accounts of the receiver, direct the delivery of the funds and
other property in his possession to the person adjudged to be The bond is double the amount of the property. Replevin may be a
entitled to receive them, and order the discharge of the receiver principal action, it may also be a provisional remedy. Do not forget
also when to apply or when to file a petition or motion for replevin,
from further duty as such. The court shall allow the receiver such
for recovery of personal property. Do not forget this phrase, at
reasonable compensation as the circumstances of the case
warrant, to be taxed as costs against the defeated party, or anytime before answer. So replevin may refer to the action itself
apportioned, as justice requires. for the recovery of personal property or the provisional remedy,
traditionally associated with it, by which the possession of property
may be obtained by the plaintiff and secured during the pendency
When shall receivership be terminated? If the court shall determine
of the action. One thing you should not also forget in replevin, this
that the necessity for a receiver no longer exists. So what shall the
is an action for possession only, possessory action like forcible
court do? Direct the delivery of the funds and other property in his
entry and unlawful detainer, possessory rana siya. What that does
possession to the person adjudged to be entitled to receive the
mean? The only issue is possession. An action for replevin does not
property under receivership. Of course you have to compensate
finally settle the issue of ownership, it may or may not, but it is not
that receiver.
expected to resolve with finality the issue of ownership. That is
why in replevin you sue only the person in possession, not the
Sec. 9. Judgment to include recovery against sureties.
owner who is not in possession, that’s why it is called possessory
action. Who will file an application for the provisional remedy of
The amount, if any, to be awarded to any party upon any bond
replevin? Plaintiff or defendant, subject matter is personal property
filed in accordance with the provisions of this Rule, shall be
only capable of manual delivery. So I repeat, applied for before
claimed, ascertained, and granted under the same procedure
answer. Attachment, injunction, support pendent lite, at anytime
prescribed in section 20 of Rule 57.
before judgment. Receivership, at any stage of the action and even
after judgment. Now replevin is available only where the principal
reliefs are recovery of possession of personal property. Even if
34
there are other reliefs prayed for like damages, attorney’s fees, (c) That the property has not been distrained or taken for a tax
etc.,replevin can be sought only where the defendant is in actual or assessment or a fine pursuant to law, or seized under a writ of
constructive possession of the personal property involved. May execution or preliminary attachment, or otherwise placed under
property searched under search warrant be the subject of replevin? custodia legis, or if so seized, that it is exempt from such seizure
The answer is no. Kung naay property confiscated because of a or custody; and
search warrant, can the owner recover that personal property by (d) The actual market value of the property.
filing writ of replevin? As I said no, because personal properties The applicant must also give a bond, executed to the adverse party
seized under a search warrant are properties in custodia legis, that in double the value of the property as stated in the affidavit
is the reason. Is there an exception? Yes if the search warrant was aforementioned, for the return of the property to the adverse party
improvidently or irregularly issued, so replevin may be a remedy. if such return be adjudged, and for the payment to the adverse
Now replevin is available to recover personal property even if the party of such sum as he may recover from the applicant in the
same is concealed, removed or disposed of. Remember attachment action.
and receivership. Replevin cannot be availed of if the property is in
custodia legis or its under attachment. Which court may entertain a
replevin action? Regional Trial Court, CA, SC including MTC if the The applicant must execute an affidavit, or any person may
property sought to be recovered is 200,000 or less-MTC. Then execute affidavit if he has personal knowledge of the facts.
range of enforceability, there is already writ of replevin, it is Contents, applicant is either the owner of the property named,
enforceable anywhere in the Philippines. So attachment anywhere, then describing it, or he is entitled to the possession thereof. You
injunction in the region only. There is no ruling with respect to rented a car for 1 month, nag drive ka, somebody grab the car
receivership. You should distinguish replevin from receivership. In from you, ako sa ang mag abang ani, so how can you recover, by
receivership, the property must be removed, etc. In replevin, it is force? No, replevin. You are not the owner but you are entitled to
not necessary. Chattel mortgagee may apply for replevin, reason, possession of the property. If the property is wrongfully detained
the chattel mortgagee cannot lawfully take the property by force by the adverse party alleging the cause of detention, so the court
against the will of the mortgagor. Who are the indispensable will not issue a writ of replevin. Property has not been taken or
parties in an action to recover possession? Mortgagor, third party attached as assessment pursuant to law, between you and
and chattel mortgagor. What is the basis of jurisdiction in action by government, of course the government would prevail. Personal
chattel mortgagee to recover possession of encumbered property? property must also not be seized under a writ of execution because
The amount of the plaintiff’s claim must be within the jurisdiction it is in a possession of a sheriff who enforces the writ of execution,
of the court. Expenses of suit and attorney’s fees in an action for therefore the property is considered as property in custodia legis. If
replevin are recoverable directly from the mortgagor. the property is attached, it cannot also be recovered by replevin.
Suppose a property is seized, you are the owner of the property,
the property was attached, can you recover the property? It
Sec. 2 Affidavit and bond. depends. If the property is exempt from execution, remember
properties exempt from execution are also exempt from
The applicant must show by his own affidavit or that of some other attachment, you can therefore recover it via replevin.
person who personally knows the facts: Last, actual market value of the property, in one case the plaintiff
alleged that the probable value of this property is 200,000, SC said
(a) That the applicant is the owner of the property claimed, court should not have granted replevin because the plaintiff must
particularly describing it, or is entitled to the possession thereof; state the actual market value not the probable value of the
(b) That the property is wrongfully detained by the adverse party, property.
alleging the cause of detention thereof according to the best of his
knowledge, information, and belief;
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Then applicant’s bond executed to the adverse party in double the  Attachment – bond is in such amount as may be fixed by
value of the property as stated in the affidavit. What is the purpose the court
of the applicant’s bond? For the return of the property to the  Injunction – bond must also fixed by the court
adverse party if the return thereof be adjudged, and for the  Receivership – bond is not always required of the applicant
payment of the adverse party of such sum as he may recover from and shall be in a sum fixed by the court in its discretion.
the applicant in the action. This is the only provisional remedy
where the applicant may ask for alternative prayer. Kung Section 3. Order. — Upon the filing of such affidavit and
pananglitan ang imong kalo gi-kuha, ikaw ni apply ug replevin, approval of the bond, the court shall issue an order and the
nahuman ang kaso 10 years later. Ganahan pa ka sa kalo nga you corresponding writ of replevin, describing the personal
acquired 10 years ago? So what is your alternative prayer? Pay the property alleged to be wrongfully detained and requiring the
value plus damages. Gi-replevin ang imong tablet or laptop, sheriff forthwith to take such property into his custody. (3a)
nahuman ang kaso 10 years later, sus obsolete na imong laptop,
so in lieu of the delivery of the laptop or computer to you, you may Section 4. Duty of the sheriff. — Upon receiving such order,
opt to pray for payment of the value of the property plus damages. the sheriff must serve a copy thereof on the adverse party,
Replevin, bond to be posted must be double the value of the together with a copy of the application, affidavit and bond,
property sought to be replevined. and must forthwith take the property, if it be in the
possession of the adverse party, or his agent, and retain it
Attachment, bond is in such amount as may be fixed by the court. in his custody. If the property or any part thereof be
Injunction, bond must also be fixed by the court. concealed in a building or enclosure, the sheriff must
demand its delivery, and if it be not delivered, he must
Receivership, bond is not always required of the applicant and may cause the building or enclosure to be broken open and take
be a sum fixed by the court in its discretion. the property into his possession. After the sheriff has take
possession of the property as herein provided, he must keep
June 29, 2012 Part 3 it in a secure place and shall be responsible for its delivery
to the party entitled thereto upon receiving his fees and
What is the purpose of the applicant’s bond? For the return of the necessary expenses for taking and keeping the same. (4a)
property to the adverse party if the return thereof be adjudged;
and for the payment of the adverse party for such sum as he can
What is the duty of the sheriff? Pananglitan gikuha nya ang
recover from the applicant in the action. This is the only provisional
property replevined nya iya gida sa beachfront pra date sa iya
remedy where the applicant may ask for alternative prayer. Kung
uyab, then gikawat ang car, what is his criminal liability?
pananglitan you have a car, gikuha sa banko, nya ikaw ni apply ug
Malversation because a property delivered by writ of replevin is
replevin, nahuman ang kaso 10years later. Ganahan pka sa car
property in custodia legis.
you acquired 10 years ago? Pwde sa museum nlng hatag. What is
your alternative prayer? Pay the value plus damages. Replevin ang
By the way who issues the writ of replevin? The clerk of court.
imo tablet ug laptop, nahuman ang kaso 10 years later, sus
Who will issue the order? The judge and the clerk of court prepares
obsolete na laptop, so in lieu of the delivery of the laptop to you,
the writ of replevin. Who will serve the writ of replevin? The
you may opt to pray for payment of the value of the property plus
Sheriff.
damage.
So duty of sheriff upon receipt of order: Serve a copy on the
 Replevin - bond to be posted must be double the value of
adverse party together with the following documents: 1)
the property sought to be replevined.
application; 2) affidavit; 3) bond.

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Then most important duty, take forthwith the property. Forthwith He may also file a counter replevin bond, also known as redelivery
means immediately, do not dilly dally. Kay di nimo kwaon dayon, bond, to the applicant. How much? Double the value of the
the property might be concealed or removed, that is if it be in the property as stated in the applicant’s affidavit.
possession of the adverse party or his agent.
What is the purpose of the counter bond? Sec. 5, for the delivery of
His other duty, retain the property in his custody. Supposed the the property to the applicant, such delivery be adjudged, and for
personal properties concealed in a building. How will sheriff recover the payment of such sum, to him as may be recovered against the
property? 2 things. 1st, demand delivery of the property. Should adverse party. Now the law does not allow the defendant a motion
the person in possession of property refuse to deliver the property, to dissolve or discharge the writ of replevin on the gorund of
then he can break into the building. This is a break open order. iunsufficiency of the complaint on the gorunds he relied upon
Break open, then take position. therefor.

So after sheriff has taken possession of the property, he must keep What is a bond? A bond is an obligation or undertaking in writing
it in a secure place. Di dad-on sa ila. Di dad-on sa beach. that is sufficient in amount. The prescription period for filing a
Sometimes, unsa man secure? In a bonded warehouse, if not, counter replevin bond must be counted from the actual taking of
court premises. the property.

The sheriff will be responsible for the delivery to the party entitled
thereto upon receiving his fees and necessary expenses. Section 6. Disposition of property by sheriff. — If within five
(5) days after the taking of the property by the sheriff, the
adverse party does not object to the sufficiency of the bond,
or of the surety or sureties thereon; or if the adverse party
so objects and the court affirms its approval of the
Section 5. Return of property. — If the adverse party objects applicant's bond or approves a new bond, or if the adverse
to the sufficiency of the applicant's bond, or of the surety or party requires the return of the property but his bond is
sureties thereon, he cannot immediately require the return objected to and found insufficient and he does not forthwith
of the property, but if he does not so object, he may, at any file an approved bond, the property shall be delivered to the
time before the delivery of the property to the applicant, applicant. If for any reason the property is not delivered to
require the return thereof, by filing with the court where the the applicant, the sheriff must return it to the adverse party.
action is pending a bond executed to the applicant, in (6a)
double the value of the property as stated in the applicant's
affidavit for the delivery thereof to the applicant, if such So both requirements are mandatory. That is post redelivery
delivery be adjudged, and for the payment of such sum, to bond, that’s the 1st requirement. 2nd requirement, serve a copy of
him as may be recovered against the adverse party, and by such bond on the plaintiff within 5 days of the taking of the officer.
serving a copy of such bond on the applicant. (5a) These requisites are mandatory.

Return of property. Suppose the bond posted by the applicant is

not sufficient, then the court issued the applicant to issue sufficient When is the defendant entitled to the return of the property taken
bond, the applicant failed to comply with the order of the court, so under a writ of replevin?
the property will be returned to the original possessor. 1. He seasonably posted a redelivery bond.
2. Plaintiff’s bond is insufficient and he did not post a sufficient
bond.
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3. Property is not delivered to plaintiff for any reason. Section 7 is 3rd party claim. This is similar to the 3rd party claim in
Rule 39, third party claim in attachment.
Section 7. Proceedings where property claimed by third
person. — If the property taken is claimed by any person Section 8. Return of papers. — The sheriff must file the
other than the party against whom the writ of replevin had order, with his proceedings indorsed, thereon, with the
been issued or his agent, and such person makes an court within ten (10) days after taking the property
affidavit of his title thereto, or right to the possession mentioned therein. (8a)
thereof, stating the grounds therefor, and serves such
affidavit upon the sheriff while the latter has possession of Return papers within 10 days from taking of property.
the property and a copy thereof upon the applicant, the
sheriff shall not be bound to keep the property under Section 9. Judgment. — After trial of the issues the court
replevin or deliver it to the applicant unless the applicant or shall determine who has the right of possession to and the
his agent, on demand of said sheriff, shall file a bond value of the property and shall render judgment in the
approved by the court to indemnify the third-party claimant alternative for the delivery thereof to the party entitled to
in a sum not less than the value of the property under the same, or for its value in case delivery cannot be made,
replevin as provided in section 2 hereof. In case of and also for such damages as either party may prove, with
disagreement as to such value, the court shall determine costs. (9a)
the same. No claim for damages for the taking or keeping,
of the property may be enforced against the bond unless the
Sec. 9, judgment, of course, judgment after trial, the court will
action therefor is filed within one hundred twenty (120)
determine who is the owner of the property or who is in lawful
days from the date of the filing of the bond.
possession thereof. So after trial, court shall determin who has the
right for possession now and the value of the property, and shall
The sheriff shall not be liable for damages, for the taking or render judgment in the alternative for example delivery of the
keeping of such property, to any such third-party claimant if property or its value. So the rule says, render judgment in the
such bond shall be filed. Nothing herein contained shall alternative for the delivery therof to the party entitled to the same,
prevent such claimant or any third person from vindicating or for its value in case delivery cannot be made, and also for such
his claim to the property, or prevent the applicant from damages as either party may prove, with costs. So again, the
claiming damages against a third-party claimant who filed a judgment in a replevin case, does not with finality settle the
frivolous or plainly spurious claim, in the same or a separate question of ownership.
action.
Section 10. Judgment to include recovery against sureties.
When the writ of replevin is issued in favor of the Republic — The amount, if any, to be awarded to any party upon any
of the Philippines, or any officer duly representing it, the bond filed in accordance with the provisions of this Rule,
filing of such bond shall not be required, and in case the shall be claimed, ascertained, and granted under the same
sheriff is sued for damages as a result of the replevin, he procedure as prescribed in section 20 of Rule 57. (10a)
shall be represented by the Solicitor General, and if held
liable therefor, the actual damages adjudged by the court
Sec. 10, Pareha ra sa previous rule. Now the plaintiff who obtains
shall be paid by the National Treasurer out of the funds to
possession of the personal property via writ of replevin does not
be appropriated for the purpose. (7a)
acquire absolute title thereto, nor does the defendant acquire such
title by refunding the property as they only hold the property
subject to the final judgment in the action.
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Then writ of replevin may be served anywhere in the Philippines. Suppose the defendant was suspended from work and the woman won the
lotto. So, defendant may file a motion either to stop or decrease the
amount of support.
RULE 61
The (appealing) time before judgment or order. Please take note of the
Support Pendente Lite phrase “of the proper action or proceeding”. What is the proper action?
Action for support. This is also available in legal separation. Sometimes
Section 1. Application. — At the commencement of the annulment of marriage, declaration of nullity of marriage.
proper action or proceeding, or at any time prior to the
So support pendente lite must be filed when there is a proper action or
judgment or final order, a verified application for
proceeding.
support pendente litemay be filed by any party stating the
grounds for the claim and the financial conditions of both A and B got married. They have a child after 1 year. They decided to part
parties, and accompanied by affidavits, depositions or other ways. But during their living together as H & W, nangutang ang laki ug
authentic documents in support thereof. (1a) 500K sa babae. So pagbuwag nila, unsa man ang gi-file sa babae?
Recovery of sum of money with support. Pwede? NO. Because support
When are you going to file an application for support pendent lite? pendente lite must be applied in a proper proceeding.
At the commencement of the proper action or proceeding, or at
Form
any time prior to the judgment or final order. If there is already a
It must be verified under oath. Then the applicant must also state the
decision in court, the defendant is now obliged to give support. grounds for the claim. So she may attach a birth certificate or other
Warning, this is only the provisional remedy, for the action for documents. She must also state the financial conditions of both parties.
support which will never become final and executory.
Is a trial-type hearing where parties are required to testify
FIRE DRILL!!!! necessary?
Not necessary. You just attach to the application or opposition—affidavits,
dispositions or other documents in support of the application.

Just read Article 195 of the Family Code.

Xxxxxxxxxxxxxxxxxxxxxx
Which court has jurisdiction?
RTC and RTC only. Why? Because an action for support is not capable of
pecuniary estimation.

Recording after FIRE DRILL But in criminal actions where the penalty provided by law is within
the jurisdiction of the MTC
Xxx …then MTC may entertain an application for support.

…And the parties can change fortunes. Remember support is based on the CA may also grant support pendente lite.
resources of the person obliged to give support and then needs of the
person to be supported. How about legal separation? Where will the children get the
money?
The defendant is the manager of a big company; he is receiving 200K a From the properties of the absolute community or the conjugal
month. Then he met an accident and is now jobless. So what will partnership.
defendant do? Motion to stop support.

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Remember an application for support for pendente lite does not resolve party, and the terms of payment or mode for providing the support. If the
the main action for support. That’s why it’s called pendete lite—pending application is denied, the principal case shall be tried and decided as early
litigation. as possible.

If the court will order the defendant to provide support, it does not There are factors to be considered in awarding support pendente lite. In
necessarily follow, that after the judgment the court will directly tell him to Section 4 summary hearing, the court will issue an order. It shall
support the woman or the child. determine provisionally the pertinent facts—provisionally because it’s not a
resolution of the case on the merits. So court shall issue orders as justice
Sec. 2. Comment. and equity may require.
A copy of the application and all supporting documents shall be served
upon the adverse party, who shall have five (5) days to comment thereon What shall be taken into consideration?
unless a different period is fixed by the court upon his motion. The Probable outcome of the case and other circumstances.
comment shall be verified and shall be accompanied by affidavits,
depositions or other authentic documents in support thereof. Duty of the court
Fix the amount to be provisionally paid.

What shall the defendant do? Other forms of support

File comment. This is urgent so 5 days to comment. Then the comment Consider the following: necessities of the applicant and resources or
must be verified. You must also attach affidavit, dispositions, other means of the person obliged to give support.
authentic documents in support of the opposition.
Kuny milyonaryo ang babae, ordinaryong tao ang lalaki, unsaon nimo
Sec. 3. Hearing. nalang tawn pag support.
After the comment is filed, or after the expiration of the period for its
filing, the application shall be set for hearing not more than three (3) days So if the defendant is indigent, the court shall not grant the application for
thereafter. The facts in issue shall be proved in the same manner as is support.
provided for evidence on motions.
Terms of payment or mode of providing support
Since this is urgent, when shall the court hear application? 3 days after How much per month? To whom shall it be given? The amount will be
comment or after expiration of the period to file comment. The rule says deposited with the clerk of court and it’s the plaintiff who will get the
the facts and the issues shall be proved in the same manner as is provided money from the clerk of court.
for evidence on motions.
Suppose the application shall be denied. What shall be done next?
Under evidence on motions you just attach affidavit to your positions, Trial on the merits.
authentic documents, etc. You do need not personally testify.
What is the remedy against an order granting or denying support
Xxx on due process the court shall allow the defendant to present pendente lite?
evidence. It’s either certiorari for grave abuse of discretion or prohibition of the court
which has no jurisdiction.

Sec. 4. Order. Order for support for pendente lite is abrogated by the dismissal of the
The court shall determine provisionally the pertinent facts, and shall main action.
render such orders as justice and equity may require, having due regard
to the probable outcome of the case and such other circumstances as may Sec. 5. Enforcement of order.
aid in the proper resolution of the question involved. If the application is If the adverse party fails to comply with an order granting support
granted, the court shall fix the amount of money to be provisionally paid pendente lite, the court shall, motu proprio or upon motion, issue an order
or such other forms of support as should be provided, taking into account of execution against him, without prejudice to his liability for contempt.
the necessities of the applicant and the resources or means of the adverse
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When the person ordered to give support pendente lite refuses or fails to party allegedly because of the crime. The application therefor may be filed
do so, any third person who furnished that support to the applicant may, successively by the offended party, her parents, grandparents or guardian
after due notice and hearing in the same case, obtain a writ of execution and the State in the corresponding criminal case during its pendency, in
to enforce his right of reimbursement against the person ordered to accordance with the procedure established under this Rule.
provide such support.
In criminal actions where civil liability includes support for the offspring. As
Rule 39 General Rule. Only final judgment and orders will be executed or a consequence of the crime and the civil aspect thereof has not been
implemented or support. Exception—support. Because an order granting waived, reserved or instituted, the accused may be ordered to provide
support is interlocutory but if the person obliged to give support fails to support pendente lite.
comply with all that he is ordered, then the plaintiff may file a motion for
the issuance of the writ of execution against the real or personal Sec. 7. Restitution.
properties of the defendant. When the judgment or final order of the court finds that the person who
has been providing support pendente lite is not liable therefor, it shall
So again, court may motu propio or upon motion, issue an order of order the recipient thereof to return to the former the amounts already
execution without prejudice to liability or contempt. What kind of paid with legal interest from the dates of actual payment, without
contempt? Indirect contempt. prejudice to the right of the recipient to obtain reimbursement in a
separate action from the person legally obliged to give the support. Should
Now this is a new provision—when the person ordered to to give support the recipient fail to reimburse said amounts, the person who provided
pendente lite refuses or fails to do so, any 3rd person who furnish the through same may likewise seek reimbursement thereof in a separate
support to the applicant may after due notice of hearing in the same case action from the person legally obliged to give such support.
obtain a writ of execution to enforce his right of reimbursement against
the person ordered to provide the support. Section 7 is interesting. Suppose—tapos ang kaso, main case. The court
rendered a judgment—John is not the father. Pero si John sigi siyag bayad
Three persons are involved—Pablo, John and Faith. Si Faith duha iya ug support kada buwan. Ni abot na gud ug 500K. So what is the remedy of
uyab—si Pablo ug si John. Namapdos si Faith. Ingon siya ang author ani si John?—Ask for resititution for the amount given by way of support plus
John. So Faith filed an action for support with support pendente lite. damages.
The judge granted the application: John, you give monthly support. Unya
wa man ni bayad si John. Si Pablo, na na inlove gyud siya ni Faith—ako Suppose ang plaintiff cannot pay restitution. Section 7 says—without
lang ang support nimo…(Hahaha…) What is the remedy of Pablo so he will prejudice to the right of the recipient to obtain reimbursement in a
be reimbursed? separate action from the person legally obliged to give the support.

He will file a motion for the issuance of a writ of execution so that the And the court found na di si John—si Pablo man diay. Unya di man
personal and real properties of John will be sold in a public auction, the kabayad si Faith? Anhi siya mu proceed against Pablo. The rule says
proceeds of which will be applied to the amount to be reimbursed. So writ should the recipient fail to reimburse the amount the person who provided
of execution to enforce the right to reimbursement. through same may likewise seek reimbursement thereof in a separate
action from the person legally obliged to give such support.
Order granting support pendente lite is executory although interlocutory.
Support pendente lite is proper in the following:
Then supplemental proceedings which we have under Sections 36 to  Adultery
38…like garnishment or have the party and be directed by the court to  Annulment of marriage
explain why he concealed his property.  Xxx (Prof stops for a loooooong time)

Sec. 6. Support in criminal cases. Are there other provisional remedies not found in the Rules of
In criminal actions where the civil liability includes support for the offspring Court?
as a consequence of the crime and the civil aspect thereof has not been SC said yes. Deposit is also a provisional remedy.
waived, reserved or instituted prior to its filing, the accused may be
ordered to provide support pendente lite to the child born to the offended //End
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