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60693671- Ateneo (2007) Provisional-Remedies

60693671- Ateneo (2007) Provisional-Remedies

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ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER

4. In replevin, the bond to be posted by the applicant is an amount double the value of the personal property to be seized. 5. In applications for support pendente lite, no bond is generally required from the applicant.

PROVISIONAL REMEDIES

PROVISIONAL REMEDIES - writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect his rights and interests therein, pending rendition, and for the purpose of ultimately affecting a final judgment in the case. Provisional - constituting temporary measures availed of during the pendency of the action. Ancillary - incidents in and dependent on the result of the main action. PROVISIONAL REMEDIES AVAILABLE UNDER THE RULES OF COURT Rule 57: Preliminary Attachment Rule 58: Preliminary Injunction Rule 59: Receivership Rule 60: Replevin Rule 61: Support Pendente Lite When Provisional Remedies Available 1. Attachment, injunction, and support pendente lite may be applied for before final judgment. 2. Replevin may be applied before the answer. 3. Receivership may be applied for at any stage of the action and even after final judgment. When Bond is Required and How Amount of Bond is Determined 1. For attachment and injunction, bond is always required from the plaintiff but the amount of the bound to be filed by the applicant TIFFis QuickTime™ and a to the sound addressed (Uncompressed) decompressor are needed to see this discretion of the court. picture. 2. In preliminary attachment and replevin, if the applicant is the Republic of the Philippines, no bond shall be required. 3. In receivership, the bond as fixed by the court is not always required of the petitioner, whether or not the appointment of a receiver has been applied for ex parte.

RULE 57 PRELIMINARY ATTACHMENT Section 1. Grounds upon which attachment may issue When May Application for Attachment Be Made 1. At the commencement of the action; or 2. At any time before entry of judgment. In What Actions Attachment Proper a) In an action for the recovery of specified amount of money and damages, except moral or exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Phils with intent to defraud creditors; b) In an action for money or property embezzled; fraudulently misapplied or converted to own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk in course of employment; or any person acting in fiduciary capacity, or for willful violation of duty; c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property is removed, concealed or disposed of to prevent its being found or taken by the applicant or an authorized person; d) In an action against party who has been guilty of fraud in contracting the debt or incurring the obligation upon which action is brought; or in the performance thereof; e) In an action against party who has removed or disposed of property, or is about to do so, with intent to defraud creditors; or f) In an action against party who does not reside and is not found in the Phils, or on whom summons may be served by publication. Erana v. Vera 74 Phil. 272 (1944)

—Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G. Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan—

The Court of Appeals. copy of complaint. There must be a showing of intent to defraud defendant’s creditors before the writ of attachment may issue. Bond Section 4. Affidavit of the applicant. The Supreme Court. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. the defendant is a resident of the Phils temporarily absent therefrom. Torres 233 SCRA 645 (1994) Mortgage of property does not amount to removal/disposal so as to come w/in the purview of Sec1(e) Rule57. showing that: a.Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 When civil action has been waived or reserved. 2. BUT the requirement of prior or contemporaneous service of summons shall not apply where: a. (Sec. b. Affidavit and Bond Required REQUIREMENTS FOR ISSUANCE OF WRIT OF ATTACHMENT 1. There is no other sufficient security for the claim sought to be enforced by the action. v. The trial court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated on appeal. Two-Fold Purpose of Attachment 1. Ex parte. the attachment which may have been issued as an incident of that action is also considered appealed PRINCIPLE OF PRIOR or CONTEMPORANEOUS JURISDICTION Enforcement of writ of preliminary attachment must be preceded by or simultaneously accompanied by service of summons. and so also removed from the jurisdiction of the court a quo. or 3. 13. or c. no attachment may issue in the criminal action because civil action remains pending in court. or d. TIFF (Uncompressed) decompressor are needed to see this picture. the action is in rem or quasi in rem. Uy v. Carpio v. Condition of applicant’s bond Conditions of the Applicant’s Bond The bond shall answer for: 1. Page 104 of 289 Ramcar. Upon motion with notice and hearing. is as much as the sum for which the order is granted above all legal counterclaims. Properties Exempt from Execution All properties exempt from execution are likewise exempt from attachment. Manner of Attaching Property By Whom Order Attachment Issued 1. or some other person who personally knows the facts. CA 215 SCRA 859 (1992) The trial court may validly issue a writ of QuickTime™ and preliminary attachment even if thea case is on appeal. . The court in which the action is pending. application and affidavits for the attachment and the bond upon the adverse party. and c. 2. Adlawan v. All the costs which may be adjudged to the adverse party. and 2. Macadaeg 9 SCRA 552 (1963) Mere removal or disposal of property does not justify an attachment. 449 (1947) When civil action is suspended due to the filing of the criminal action. the case is one of those mentioned in Section 1. De Leon 78 Phil. Section 2. Rule 59) Section 3. or 2. or b. the defendant is a non-resident of the Phils. or the value of the property the possession of which he is entitled to recover. sufficient cause of action exists. Issuance and contents of order How Order of Attachment Issued 1. 2. All damages which he may sustain by reasons of the attachment. To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment. Olib v Pastoral 188 SCRA 692 (1990) Where the main action is appealed. Section 5. Inc. and that the amount due the applicant. no application for attachment in the criminal action can be allowed and granted. the summons could not be served despite diligent efforts.

Discharge of attachment on other grounds GROUNDS FOR DISCHARGE 1. delivery of property to sheriff Section 11. Improper or irregular issuance of attachment. CA 191 SCRA 275 (1990) Where the sheriff attaches a property claimed by a third person.Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Davao Light v. Section 8. v. Abrogar 241 SCRA 659 (1995) Prior or contemporaneous service of summons is necessary for the validity of the ENFORCEMENT of a writ of attachment. b. Section 14. 6. and heir/devisee/legatee. personal property incapable of manual delivery . Bond is insufficient. Rule 39) Uy v. Section 9. and d. previous service of summons is not required.Order and Notice to Register of Deeds and Occupant or his agent within the province. such person may institute a separate action to vindicate his right. proceeds deposited in court. c. property belonging to the estate of the decedent Section 10. Mindanao Savings and Loan Association. Debtor has posted a counterbond or has made the requisite cash deposit. Ramolete 203 SCRA 487 (1991) In order to bind the garnishee on a writ of garnishment. credits and all other similar personal property Perla Compania v. Section 12. CA 204 SCRA 343 (1991) Prior or contemporaneous service of summons is not necessary for the validity of the ISSUANCE of a writ of attachment. Inc. Property attached is exempt from execution.writ to the court/agency and notice to custodian. e.writ and notice to executor/administrator.writ and notice to president or managing agent. The rule that property in custody of the law may not be interfered with by Page 105 of 289 . growing crops. Calderon v IAC 155 SCRA 531 (1987) The dissolution of a writ of attachment by virtue of the filing of a counterbond by the defendant does not dissolve the applicant’s bond and the same may be proceeded against by the defendant. personal property capable of manual delivery . f. Manner of attaching property Manner of Attaching Property a. stocks or shares . in which case the discharge is limited to the excess. credits. d. property perishable or interests of all may be subserved by sale. 4. bank deposits. CA 172 SCRA 480 (1989) Objections to the impropriety or irregularity of writ of attachment may no longer be invoked once a counterbond is filed. sale by public auction. interest therein . Effect of attachment of debts. or 7. commissions. hearing and notice. debts. 5. When attached property may be sold after levy on attachment and before entry of judgment When Property Attached May be Sold a. 16. property in custodia legis. Judgment is rendered against the attaching creditor. Section 6.sheriff to take and safely keep it. Discharge of attachment upon giving counterbound Section 13. Sheriff’s return Section 7. then issue a receipt. c. royalties. real property. (Sec. interest in estate of deceased . Improprer or irregular enforcement of attachment. Proceedings where property claimed by third person Terceria The third-party claimant or any third person may vindicate his claim to the property in the same or separate action. 3. Attachment is excessive. clerk of court where estate being settled. Effect (Uncompressed) decompressor of interest in of QuickTime™ and a attachment TIFF are needed to see this picture. Examination of party whose property is attached and persons indebted to him or controlling his property. b. 2.writ and notice to debtor or person in control thereof. Onate v. only service upon him of the writ of garnishment is needed.

Claim for damages on account of improper. or ministerial functions May be on the ground that the court against whom the writ is issue sought acted without or in excess of jurisdiction Always a main action Section 2. b. Satisfaction of judgment out of property attached. Balance due collected upon an execution. return of sheriff Section 16. Section 17. PRELIMINARY MANDATORY INJUNCTION An order granted at any stage of an action or proceeding prior to the judgment or final order. Section 15. Before appeal is perfected. sureties on counterbond to lift attachment are charged and can be held liable for the amount of judgment and costs upon notice and summary hearing. Recovery upon the counter-bond Executory Judgment When judgment becomes executory. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court. Disposition of money deposited Section 19. Claims for Damages Claims for damages cannot be subject of independent action EXCEPT: a. if there is a balance. or d. before judgment becomes executory. requiring the performance of a particular act or acts. Who may grant preliminary injunction Who May Grant 1. c. are needed to see this picture. PRELIMINARY INJUNCTION Generally directed against party to the action but may be against any person Does NOT involve the jurisdiction of the court PROHIBITION Directed against a court. May be the main action itself or just a provision remedy in the main action b. if there is a balance after (a) + (b) + (c) less expenses of proceedings upon judgment. d. There is no need to first execute judgment against the judgment obligor before proceeding against sureties. classes PRELIMINARY PROHIBITORY INJUNCTION An order granted at any stage of an action or proceeding prior to judgment or final order. or a person exercising judicial. Acosta v Alvendia 109 Phil. In the appellateQuickTime™ fora damages pending court and TIFF (Uncompressed) decompressor appeal. Before trial. quasijudicial. b. When damages was sustained by a third person not a party to the action. if there is a balance. c. 2. ordinary execution. RULE 58 PRELIMINARY INJUNCTION Section 1. Section 18. it may be issued by said court or any member thereof. The court where the action or proceeding is pending. irregular or excessive attachment When to Apply for Damages Against the Attachment Bond a. Before judgment becomes executory. Disposition of attached property where judgment is for party against whom attachment was issued Section 20. tribunal. excess delivered to judgment obligor Satisfaction of Judgment a. collect garnished amounts. When principal case is dismissed by the trial court for lack of jurisdiction without giving the claiming party opportunity to prove claim for damages. Edu 99 SCRA 410 (1980) Page 106 of 289 . requiring a party or court. Preliminary injunction defined. 1017 (1960) The RTC cannot restrain or enjoin acts being perpetrated or to be perpetrated outside of its territorial boundaries. sell real or personal properties (attached) in sheriff’s hand or with clerk of court.Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 another court applies only in cases where the property belongs to the defendant or one in which he has an interest. Decano v. agency or person to refrain from a particular act or acts. proceeds of sales of perishable or other properties.

CA 219 SCRA 794 (1993) To be entitled to an injunctive write. e. • prosecution under an invalid law. 921). The commission of acts or non-performance during pendency of litigation would probably work injustice to the plaintiff. 37 Phil. To restrain criminal prosecutions as an exception. charges manifestly false and motivated by lust for vengeance. threatening. prohibition. To restrain criminal prosecution where the Ombudsman had authorized the Special prosecutor to conduct a preliminary investigation or to file an injunction. d. when there is a clear finding of ownership and possession of the land or unless the subject land is covered by a torrens title pointing to one of the parties as the undisputed owner. In actions for annulment of judgments obtained through fraud. Grounds for issuance of preliminary injunction GROUNDS FOR ISSUANCE a. To restrain sheriff from selling property on execution not belonging to judgment debtor. To prevent directors from discharging their offices and restoring former directors. h. Section 3. and preliminary injunction issued by SC to prevent threatened unlawful arrest of petitioners.Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Where the main action is the annulment of the action of the respondent and the injunction is merely corollary. g. Sydicated Media Access Corp. • court without jurisdiction over the offense. and mandamus. • when there is a pre-judicial question which is sub judice. transfer property in litigation from the possession of one party to another. Actions Where Preliminary Injunction Does Not Lie a. To restrain voting of disputed shares of stocks. attempting or is procuring or suffering to be done some act/s in violation of plaintiff’s rights respecting the subject of the action and tending to render judgment ineffectual. Allure Manufacturing v. To restrain city from proceeding with abatement of nuisance per accidens before it has been judicially declared as such. In petitions for certiorari. (2) the right of complainant is clear and unmistakable. Plaintiff is entitled to relief demanded which consists in restraining or requiring the performance of acts (the latter is preliminary mandatory injunction). motion to quash on said ground is denied. this rule admits of some exceptions. CA 254 SCRA 200 (1996) Although as a general rule. Injunction will generally not be granted to take property out of the possession of one party and place it in another whose title not clearly established. 36 Phil. v. When action for damages would adequately compensate injuries caused (Golding v. b. b. To enjoin repeated trespass on land. lack of due process of law) (Banco Espanol v. Balatbat. Actions Where Preliminary Injunction Lies a. OR c. a court should not. there is clearly no prima facie case against accused and. f. c. Defendant is doing. c. 941). in the followingacases: QuickTime™ and TIFF (Uncompressed) decompressor are needed adequate • to afford to see this picture. by means of preliminary injunction. j. trial court of locality where questioned act is to be implemented has jurisdiction. accident. For example. a party must show that: (1) the invasion of right sought to be protected is material and substantial. protection to constitutional rights of accused. • double jeopardy is clearly apparent. and (3) there is an urgent and paramount necessity for the writ to prevent serious damage. d. Cagayan de Oro Landless Residents Association v. CA 199 SCRA 285 (1991) As a rule. Palanca. Page 107 of 289 . In actions for annulment of judgments which are not patent nullities (want of jurisdiction. To restrain continued breach of valid negative obligation. injunction is not proper where its purpose is to take property out of the possession or control of one party and place it in the hands of another party whose title has not been clearly established by law. b. mistake or excusable negligence. • • • • • case of persecution rather than prosecution. i. In petitions for relief from judgment entered through fraud.

Other grounds upon affidavits of the party or person enjoined. nonextendible and trial courts have no discretion to extend it considering the mandatory tenor of Rule 58. which may be opposed by the applicant also by affidavits. effective only 20 days from notice on the party sought to be enjoined. injunction or restraining order Grounds for Denial of Application or Dissolution of Injunction a. affidavit. Matter of extreme urgency. Page 108 of 289 . QuickTime™ and TIFF (Uncompressed) decompressor whether great or small. c. Paras v. Roura 163 SCRA 1 (1988) A TRO issued by the trial court or CA expires automatically upon the lapse of the 20 day period and 60 day period respectively. Grounds for objection to. the court may issue a temporary restraining order. There is no need for any judicial declaration of dissolution. Verified application 2. exception General Procedure 1. If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. Within 72 hours. c. complaint. Duration of Temporary Restraining Order If great or irreparable injury would result to the applicant before the matter can be heard on notice. and bond. if issued by SC or member. is of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in a court of law. The total period of effectivity of the TRO shall not exceed 20 days including the 72 hours. Raffle of case requires notice and presence of party enjoined only in multiple sala court when the application is included in a complaint or any initiatory pleading 4. and because it is so large on the one hand. or beyond possible compensation in damages.effective until further orders). there is no reason to prevent a court from extending the 20-day period when it is the parties themselves who ask for such extension or for the maintenance of the status quo. Executive judge of multiple-sala court or presiding judge of single sala court may issue ex-parte TRO effective for 72 hours from issuance. Its effectivity may be extended after conducting a summary hearing within the 72 hours period until the application for preliminary injunction can be heard. Summary hearing for all parties necessary before issuing TRO EX-PARTE TRO a.Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 4. d. Showing of insufficiency of application. if it is issued by CA or member.effective for 60 days from service of copy. d. Service of summons to precede or accompany notice of raffle 5. CA 246 SCRA 175 (1995) While the efficacy of a TRO is. If application for preliminary injunction is denied or not resolved within said period. Judge shall immediately cause upon adverse party service of summons. Section 6. e. the judge shall conduct a summary hearing to determine whether the TRO shall be extended until application for preliminary injunction can be heard (total period of TRO up to 20 days only including the 72 hours). Injunction bond 3. the judge may issue ex parte a TRO effective only for 72 hours from issuance. thatsee this picture. When Defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable injury if injunction granted or continued while plaintiff can be fully compensated. Preliminary Notice Injunction Not Granted Without GENERAL RULE: No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. IRREPARABLE INJURY By “irreparable injury” is not meant such injury as is beyond the possibility of repair. EXCEPTION: When temporary restraining order may be issued ex parte. Federation of Land Reform Farmers of the Philippines v. nor necessarily great injury or great damage. TRO deemed automatically vacated (except. or for motion of dissolution of. to be submitted ought not are needed to to on the one hand or inflicted on the other. and applicant will suffer grave injustice and irreparable injury. ordinarily. Verified application and bond for preliminary injunction or temporary restraining order Section 5. Applicant’s bond is insufficient or defective. but thata species of injury. Preliminary injunction not granted without notice. b. or so small on the other. b.

or a member thereof. removed. After judgment. c. The writ may be granted or dissolved only upon good and valid grounds. When final injunction granted QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. In any event. b. Bond on appointment of receiver Section 3. In other cases where it appears appointing one is the most convenient and feasible means to preserve. Tan Torres 107 Phil. Appointment of receiver In What Cases Receiver May Be Appointed Upon a verified application. or materially injured unless a receiver is appointed. (Sec. it is neither perishable nor consumable. Descallar v.Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Interim Rules of Procedure for Intra-Corporate Controversies A party may apply for any of the provisional remedies provided in the Rules of Court as may be available for the purposes of the action. 1163 (1960) Mere filing of a counterbond is not sufficient to dissolve a writ of preliminary injunction. administer. To warrant dissolution. OR that the parties have so stipulated in the contract of mortgage. CA 310 SCRA 377 (1999) The requisites for judgment for damages against the surety/ies are: (1) the application for damages must be filed in the same case where the bond was filed. The party applying for the appointment of a receiver has an interest in the property or fund subject of the action and such is in danger of being lost. applicant’s rights and interests may be adequately protected during the pendency of the action by causing his adverse claim to be annotated on the certificate of title. effect of disapproval of same Section 8. De la Cruz v. Rule 10) Garcia v. Section 2. in the following cases: a. or to carry out the judgment. does not seem reasonable to the court that either party should hold it. Circular No. Hence. or to aid in execution when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy judgment. In an action by the mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially injured and that its value is probably insufficient to discharge the mortgage debt. when it . Service of copies of bonds. to preserve the property during the pendency of the appeal. However. and (3) there must be hearing and notice to the surety. 1. (2) such application for damages must be filed before entry of judgment. Filing a counterbond to dissolve injunction is not a matter of right. there is no evidence that payment of the mortgage obligation is being neglected. or by the Supreme Court. Section 9. preliminary injunction or preliminary mandatory injunction may issue against the government in cases involving implementation of government infrastructure projects. d. There is no showing that grave or irremediable damage may result to the applicant unless a receiver is appointed. or to dispose of it according to the judgment. or by the Court of Appeals. The real property in question is real property. promulgated 25 June 1999 No TRO. Burgos. CA 224 SCRA 566 (1993) Appointment of a receiver is not proper where the rights of the parties are still to be determined by the trial court. aside from the counterbond. Judgment to include damages against party and sureties Paramount Insurance v. 7-99. one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending. Denial of application or discharge of receiver Causes for Denial of Application or Discharge of Receiver Page 109 of 289 RULE 59 RECEIVERSHIP Receiver An indifferent person between the parties to a cause. no temporary restraining order or status quo order shall be issued save in exceptional cases and only after hearing the parties and the posting of a bond. the party enjoined must also show that the injunction will cause him irreparable damage while applicant can be compensated for damages he may suffer (show through hearing). reiterated in Admin. or dispose of the property in litigation. appointed by the court to receive and preserve the property or fund in litigation pendente lite. Section 7. Section 1. Even though it is mortgaged to a third person.

Rule 57. shall be liable to the receiver for the money or the value of the property refused or neglected to be surrendered with all damages that may be sustained by party/ies entitled thereto as consequence of such neglect or refusal. by order of the court of a personal property by the defendant to the plaintiff. and b. Bring and defend. Termination of receivership. destroying or disposing of the same during the pendency of the suit. whether it be damages against the applicant’s bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the receiver’s bond by reason of the receiver’s management (in the latter case. 7. may be punished for contempt. CA 258 SCRA 102 (1996) It is both a form of principal remedy and a provisional relief. 9. 527 (1947) An order appointing a receiver is interlocutory. or corporation of which he is a receiver. Take and keep possession of property in controversy. Invest funds in his hands a QuickTime™ and only by order of the TIFF (Uncompressed) decompressor court upon are needed to see this picture. c. Ylarde v. or d. 2. b. Section 5. no longer need to file a separate action). It is also described as a mixed action because it is partly in rem and partly in personam. 10. Divide the money and other property that shall remain among persons legally entitled to receive the same. Oath and bond of receiver Bond Both the applicant for receivership and the receiver appointed must file separate bonds. effect of disapproval of same Section 6. Judgment to include recovery against sureties Claims Against Bond In claims against the bond. General powers of receiver GENERAL POWERS OF A RECEIVER 1. actions in his own name. it shall be filed. of all the parties written consent to action. Certiorari. Barrios 63 Phil. Section 9. is the proper remedy. Compound for and compromise the same. Applicant’ bond is insufficient. in such capacity. Roldan 76 Phil. Adverse party files sufficient bond for damages. 3. 4. or prevent the defendant from damaging. ascertained and granted under the same procedure as Section 20. Section 8. Liability for refusal or neglect to deliver property to receiver Neglect or Refusal to Deliver Property RULE 60 REPLEVIN Calo v. 198 (1936) The appointment of a receiver lies within the sound discretion of the court. Section 4. Sanson v. Collect debts due to himself as receiver or to the fund. BA Finance v. in order to protect the plaintiff’s right of possession of said property. Enriquez 78 Phil. It is not a matter of absolute right even when stipulated for by the parties. 6. Appointment sought is without sufficient cause.Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 a. Service of copies of bonds. that necessity for receiver no longer exists. Section 7. 8. Person who neglects or refuses upon reasonable demand to deliver to receiver property subject of the receivership may be sanctioned as follows: a. not appeal. who shall give a bond to assure the return thereof or the payment of damages to the defendant if plaintiff’s action to recovery possession of the same property fails. Receiver’s bond is insufficient. Make transfers. 445 (1946) Delivery of personal property as a provisional remedy consists in the delivery. Pay outstanding debts. 5. after due notice and hearing. Receive rents. compensation of receiver Termination of Receivership Termination of receivership may be ordered by court motu proprio or upon motion of either party after determining. estate. Do acts respecting the property as court may authorize. person. It is in rem insofar as recovery of specific Page 110 of 289 . property.

information and belief. Corp. CA 222 SCRA 85 (1993) Where personal property is seized under a search warrant and there is reason to believe that the seizure will not anymore be followed by the filing of a criminal action. (Sec.70 (1955) Machineries bolted to the ground are real property that may not be subject to replevin. particularly describing it. Chua v. Preliminary investigation provisionally dismissed). where there is still probability that the seizure will be followed by the filing of a criminal action (eg. CA 251 SCRA 70 (1995) The chattel mortgagor is an indispensable party in a replevin action preparatory to foreclosure proceedings.also called as the redelivery bond . REPLEVIN Available only when the principal action is recovery of personal property Available only when the defendant is in actual possession of the property Cannot be availed of when the property is in custodia legis Available before defendant files answer Bond is double the value of the property ATTACHMENT Available even if recovery of property is only incidental to the relief sought Available even if the property is in the possession of a third person Can be availed of even if the property is in custodia legis Available from commencement but before entry of judgment Bond is fixed by the court Section 2.must be filed bond in the court where the action is pending at anytime before delivery of the property to the applicant . the applicant is the owner of the property claimed.2. (Sec.executed to the adverse party in double the value of the property as stated in affidavit for the return of such property and for payment of such sum as adverse party may recover from applicant in the action. v. The plaintiff may apply for an order for the delivery of such property to him. Affidavit of the applicant. the property is wrongfully detained by the adverse party. However. Rule 60). the proper remedy is to question the validity of the search warrant in the same court which issued it and not in any other branch of said court.also called as the indemnity bond . Applicant’s Bond . BONDS a. or the criminal information has actually been commenced or filed. Dismissal of the replevin action as to . and there are conflicting claims over the seized property. or is entitled to the possession thereof. CA 96 Phil. 7). the proper remedy is the filing of the action for replevin. 5. Application When Replevin Available It is available only in an action where the principal relief is the recovery of possession of personal property. and there are conflicting claims over the property seized.the sheriff shall not be bound to keep the property under replevin or to deliver it to the applicant unless the applicant or his agent. Section 1. and it is in personam insofar as the claim for damages is concerned.for the return of the property to the adverse party . shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property under replevin as proved in the affidavit of applicant. on demand of said sheriff. (Rule 60 Sec.Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 personal property is concerned. or an interpleader filed by the Government in the proper court. Bond for Third-Party Claimant . Affidavit and bond REQUISITES FOR REPLEVIN 1. showing that: d. alleging the cause of its detention according to the best of his knowledge. Rule 60) b. Page 111 of 289 Servicewide Specialists v.in double the value of the property as stated in applicant’s affidavit for delivery of property to applicant if such delivery be adjudged. at the commencement of the action or at any time before answer. are needed to Supply Machineries Engineering see this picture. Counterbond for Adverse Party . not necessarily the same one which issued the search warrant. QuickTime™ and a TIFF (Uncompressed) decompressor him results in dismissal of the action against his codefendant third party possessor. e. and for payment of such sum as may be recovered against him. and actually prosecuted. or some other person who personally knows the facts. c.

whether of full or half-blood. or any officer duly representing it. Education. if any. How Applied For Page 112 of 289 . Immediate turnover to the plaintiff is not justified by an absence to store the seized property. Bond which shall be double the value of the property as stated in the affidavit. the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose. Return of property When Defendant is Entitled to the Return of the Property Defendant entitled to return of property taken under writ if: a. and d. ascertained. it is not to be delivered immediately to the plaintiff. 20. Balino 224 SCRA 256 (1993) After property is seized under a writ of replevin. he shall be represented by the Solicitor General. La Tondena v. Dwelling. Clothing. PARTIES OBLIGED TO GIVE SUPPORT Article 195 of the Family Code provides that the following persons are obliged to give support: a. The procedure in Sec. b.Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 the property has not been distrained or taken for a tax assessment or a fine pursuant to law. or placed under custodia legis. Parents and their legitimate children and the illegitimate children of the latter. Judgment to include recovery against sureties Sec. Rule 57. Order Section 4. or if so seized. Section 6. to be awarded to any party upon any bond shall be claimed. and if held liable therefore. that it is exempt from such seizure custody. Rule 57 is applicable not only to the replevin bond of the plaintiff but also to the redelivery bond posted by the defendant for the filing of the writ. The remedies are alternative. Return of Papers Section 9. c. and g. d. property is not delivered to plaintiff for any reason (includes situation where applicant failed to file bond to indemnify third party claimant). Everything indispensable for sustenance. Section 1. Section 8. Judgment Section 10. the filing of such bond hall not be required. b. c. and in case the sheriff is sued for damages QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. The sheriff must retain it in his custody for five days and shall return it to the defendant if he posts a counterbond. Duty of the sheriff Sebastian v. which provides as follows (all in keeping with the financial capacity of the family): a. plaintiff’s bond is found to be insufficient or defective and is not replaced with proper bond. 20. or c. Legitimate ascendants and descendants. Transportation. Application When Available This remedy is available only in an action for support or in an action where support is among the relief prayed for. 20. as a result of the replevin. Medical attendance. and f. he seasonably posts redelivery bond. and then to post a counterbond. b. RULE 61 SUPPORT PENDENTE LITE COMPONENTS OF SUPPORT The support granted may be in money or other forms in accordance with Article 194 of the Family Code. the actual market value of the property. Legitimate brothers and sisters. Section 5. CA 209 SCRA 553 (1992) The law does not allow the defendant to object to the insufficiency of the replevin bond or sureties. Rule 57 Made Applicable The amount. The remedy is to store it in a bonded warehouse. e. Proceedings where property claimed by third person No Bond if Plaintiff is Republic of the Philippines When the writ of replevin is issued in favor of the Republic of the Philippines. Disposition of property by sheriff Section 7. and granted under the same procedure as prescribed in Sec. The spouses. or seized under a writ of execution or preliminary attachment. 2. f. Section 3.

without prejudice to liability for contempt. Section 5. or petition supported by affidavits. depositions. If the person ordered to give support pendente lite refuses or fails to do so and a 3rd party furnished that support to the applicant: 3rd party may. An action for support does not only involve the determination of the amount to be given as support. Hearing Section 4. 109 Phil. Jurisdiction Over Action for Support RTC has exclusive original jurisdiction because the subject of an action for support. all of which are not capable of pecuniary estimation. terms of payment or mode for providing support. the financial resources of the person from whom support is sought. If the adverse party fails to comply with an order granting support pendente lite: order of execution. The court shall take into account: a. Saavedra v. and c. and b. or in a separate motion. The application shall be accompanied by affidavits. the voluntary dismissal of the action by the plaintiff has the necessary effect of abrogating the order. 101 Phil. failure of the defendant to deposit for one month is a separate and distinct violation from a failure to deposit for another month. resources or means of the adverse party. the oppositor should be given an opportunity to present evidence in support of his opposition. b. 422 (1957) Where the court ordered support pendente lite to be deposited each month. When Filed a. Sarmiento. 33 (1931) An order for support pendent elite is intended to be operative exclusively during the pendency of the litigation. OR b. Contents of Application The application must state: 1. the right to support created by the relation. Page 113 of 289 . Hence. after due notice and hearing in the same case. necessities of the applicant. regardless of the amount claimed. b. The verified application may be made in the verified complaint or petition in the suit itself. or other authentic documents in support thereof. the needs of the claimant. At any time prior to the judgment or final order. obtain a writ of execution to enforce his right of reimbursement. but also the relation of the parties. having due regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the question involved. At the commencement of the proper action or proceeding. The grounds for the claim. Order are needed to see this picture. Adverse party files comment within 5 days (unless different period is fixed) from service of application. Enforcement of Order Enforcement of Order a. Hon. Convictions for indirect contempt for failure to deposit for separate months do not constitute double jeopardy. Order Procedure a. Teodoro Sr. b. Mangoma v. Macadaeg 90 Phil. The financial conditions of both parties.Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 It may be sought by a verified application filed in the court where the proper action is pending. Determine provisionally the pertinent facts. Effect When Application is Granted If application is granted: court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided. 2. Ibañez Estrada 56 Phil. 148) Section 2. c. Adultery by wife). 508 (1952) Where the oppositor to an application for support pendente lite alleges sufficient ground to oppose support (eg. or after the expiration of theQuickTime™ and a its filing. Order The court shall: a. Render such orders as justice and equity may require. Application filed in court and served with adverse party. is not capable of pecuniary action. period for TIFF (Uncompressed) decompressor d. Application is set for hearing not more than 3 days after comment is filed. (Baito v. Torres v. Comment Section 3. Effect When Application is Denied If application is denied: principal case shall be tried and decided as early as possible.

What Court may Order Recipient The court may order that the amounts already paid be returned with legal interest from the dates of actual payment and without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give support. b. or instituted prior to its filing. Restitution When Restitution Applicable When the judgment or final order of the court finds that the person who has been providing support pendente lite is not liable therefore. Who may file: (in successive order) 1.Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 San Juan v. Page 114 of 289 . in criminal actions where the civil liability includes support for the offspring as a consequence of the crime. Section 6. her parents 3. grandparents or guardian 4. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. Valenzuela 117 SCRA 926 (1982) The trial court’s order fixing the amount of support pendente lite is not final in character because it can be subjected to modification depending on the changing conditions affecting the liability of the obligor to pay the amount fixed for support. When applicable: 1. and 2. Support in Criminal Cases a. State Section 7. If Recipient Fails to Reimburse If the recipient fails to reimburse. reserved. the civil aspect thereof has not been waive. the person who provided the same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give support. offended party 2.

Page 115 of 289 .Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

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