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Provisional Remedies Table

Provisional Remedies Table

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Published by Nowhere Man

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Published by: Nowhere Man on Jul 07, 2009
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08/27/2013

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PROVISIONAL REMEDIES
Preliminary AttachmentPreliminaryInjunction/PreliminaryMandatory InjunctionReceivershipReplevinSupport Pendente Lite
PurposeTo have property of adverse party attached as security for the satisfaction of judgmentthat may be recovered in casesfalling under Sec 1, Rule 57.To require a party or a court, agencyor a person to refrain from doing a particular act or acts or to require the performance of a particular act or acts.To place the property subject of anaction or proceeding under the controlof a third party for its preservation andadministration litis pendentiaTo recover possession of  personal propertyTo compel adverse party to provide support while actionis pending in courtWhenapplied/grantedAt the commencement of theaction or at any time prior tothe entry of judgmentAt any stage prior to the judgmentor final order At any time prior to satisfaction of  judgmentAt the commencement of theaction but before answer isfiledAt the commencement of the action or at any time prior to the judgment or final order How applied for File affidavits and applicant’s bondFile verified application andapplicant’s bond; if application isincluded in the initiatory pleading,the adverse party should be servedwith summons together with a copyof the initiatory pleading and theapplicant’s bondFile verified application and applicant’s bond; application may also be includedin initiatory pleading in actions for foreclosure of mortgageFile affidavits and applicant’s bondFile verified application; bond not requiredWho may grantCourt where action is pending,the CA or the SC even if actionis pending in the lower court.Only the Court where the action is pending; Lower Court, Ca or SC provided action is pending in thesame court which issues theinjunction.Court where action is pending, the CAor the SC even if action is pending inthe lower court. Appellate court mayallow application for receivership bedecided by the court of origin.Only in the court where actionis pendingCourt of origin andappellate court. (See Ramosv. CA)Requisites for grantingapplication
Sufficient cause of action
Case is covered bysection 1 Rule 57
 No other sufficientsecurity for the claimexists
Amount due to applicantor value of property he isentitled to recover isequal to the sum for which the order of attachment is granted
Applicant is entitled to therelief demanded
Act/s complained of wouldwork injustice to the applicantif not enjoined
Acts sought to be enjoined probably violates applicantsrights respecting the subject of the action or proceeding
Applicant has interest in the property or fund subject matter of the action or proceeding
Property or fund is in danger of  being lost removed or materiallyinjured
Appointment of receiver is themost convenient and feasiblemeans of preserving, administeringor disposing of the property inlitigation
Applicant is the owner of the property claimedor is entitled to the possession of the same
Property is wrongfullydetained by the adverse party
Property is not distrainedor taken for a taxassessment or a fine pursuant to law
Affidavits, depositionsor other documentsshould show, at least provisionally, that theapplicant is entitled toreceive support1
 
Preliminary AttachmentPreliminaryInjunction/PreliminaryMandatory InjunctionReceivershipReplevinSupport Pendente Lite
Where property isclaimed by third personWhen third-party claimantmakes an affidavit of his titleto the property or his right tothe possession thereof, andserves such affidavit to thesheriff and a copy thereof tothe attaching party, the sheriff shall not be bound to keep the property unless the attaching party files a bond approved bythe court to indemnify thethird-party claimant in a sumnot less than the value of the property levied upon. Claimfor damages for the taking or keeping the property must befiled within 120 days fromfiling of the bond.When third-party claimantmakes an affidavit of his titleto the property or his right tothe possession thereof, andserves such affidavit to thesheriff and a copy thereof tothe attaching party, the sheriff shall not be bound to keep the property under replevin unlessthe applicant files a bondapproved by the court toindemnify the third-partyclaimant in a sum not lessthan double the value of the property levied upon. Claimfor damages for the taking or keeping the property must befiled within 120 days fromfiling of the bond.Bond requirementBond executed to the adverse party in the amount fixed by the court to cover the costs which may be adjudged tothe adverse party and all damages which he may sustain by reason of the granting of provisional remedy prayed for,if the court shall finally adjudge that the applicant was not entitled theretoBond executed to the adverse party in
double the value
of the property for the return of the property to the adverse party if such return beadjudged, and for the paymentto the adverse party of suchsum as he may recover fromthe applicant of the action No bond requiredDischarge of remedy
By counter-bond:
Party against whom the provisional remedy is availed of, may move for the discharge of the provisional remedy granted by filinga counter-bond in an amount equal to that fixed by the court or equal to the value of the property if with respect to a particular property to secure the payment of any judgment that the adverse party may recover in the actionNot applicable.Cash deposit may be made inlieu of the counter-bondFiling of counter-bond made onlyupon showing that the issuance or continuance thereof would causeirreparable damage to the party or  person enjoined while the applicantcan be fully compensated for suchdamages as he may suffer ; counter- bond alone will not suffice todischarge the injunction.Amount of counter-bondshould also be
double thevalue
of the property2
 
Preliminary AttachmentPreliminaryInjunction/PreliminaryMandatory InjunctionReceivershipReplevinSupport Pendente LiteOther grounds
: improper or irregular issuance or enforcement or insufficiencyof the bondInsufficiency of the applicationAppointment was obtained withoutsufficient causeDamages in caseapplicant for anyof the provisionalremedies notentitled thereto or for anyirregularity in the procurement of  provisionalremedy
Owner of property attached must file before trial or before perfection of appeal application for damages
Party who availed of provisional remedy and his surety or sureties must be notified , showing right to damages and amount thereof 
Damages awarded only after proper hearing; included in judgment of the main caseIf judgment of appellate court is favorable to the party against whom provisional remedy was effected:
Application must be filed with the appellate court before the judgment of the appellate court becomes executory
Appellate court may allow application to be heard and decided by the trial courtIf bond or deposit given by the party availing of the provisional remedy be insufficient or fail to satisfy the award:
Adverse party may recover damages in the same actionWhen judgment or finalorder finds the person whohas been providing support pendente lite not liabletherefor:
Court shall order therecipient to return theamounts alreadyreceived with interestfrom the dates of actual payment
Recipient may obtainreimbursement fromthe person legallyobliged to give support(separate action must be filed for the purpose)
If recipient fails toreimburse the amount, person who providedthe same may seek reimbursement fromthe person legallyobliged to give thesupport (separateaction must be filed for the purpose)
InterpleaderDeclaratory ReliefCertiorari(COMELEC andCOA)Certiorari ProhibitionMandamusQuo WarrantoExpropriationForeclosure of RealEstate MortgagePartitionForcibleEntryDetainerContempt
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