ATENEO CENTRAL BAR OPERATIONS 2007

Remedial Law
SUMMER REVIEWER

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
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discretion ofarethe
court.
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.

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.

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

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When civil action has been waived or reserved,
no application for attachment in the criminal action
can be allowed and granted.

Ramcar, Inc. v. De Leon 78 Phil. 449 (1947)

When civil action is suspended due to the filing of
the criminal action, no attachment may issue in the
criminal action because civil action remains pending
in court.
Adlawan v. 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.
Carpio v. Macadaeg 9 SCRA 552 (1963)
Mere removal or disposal of property does not
justify an attachment. There must be a showing of
intent to defraud defendants creditors before the writ
of attachment may issue.
Two-Fold Purpose of Attachment
1. To seize the property of the debtor in
advance of final judgment and to hold it for
purposes of satisfying the said judgment;
2. 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.
Section 2. Issuance and contents of order
How Order of Attachment Issued
1. Ex parte; or
2. Upon motion with notice and hearing.

and so also removed from the jurisdiction of the court

a quo.
Properties Exempt from Execution
All properties exempt from execution are likewise
exempt from attachment. (Sec. 13, Rule 59)
Section 3. Affidavit and Bond Required
REQUIREMENTS FOR ISSUANCE OF WRIT OF
ATTACHMENT
1. Affidavit of the applicant, or some other
person who personally knows the facts,
showing that:
a. sufficient cause of action exists;
b. the case is one of those mentioned
in Section 1; and
c. There is no other sufficient security
for the claim sought to be enforced
by the action, and that the amount
due the applicant, or the value of the
property the possession of which he
is entitled to recover, is as much as
the sum for which the order is
granted
above
all
legal
counterclaims.
2. Bond
Section 4. Condition of applicants bond
Conditions of the Applicants Bond
The bond shall answer for:
1. All the costs which may be adjudged to the
adverse party; and
2. All damages which he may sustain by
reasons of the attachment.
Section 5. Manner of Attaching Property

By Whom Order Attachment Issued

1. The court in which the action is pending;
2. The Court of Appeals; or
3. The Supreme Court.
Uy v. CA 215 SCRA 859 (1992)
The trial court may validly issue a writ of
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The trial court may issue orders picture.
for the protection and
preservation of the rights of the parties which do not
involve any matter litigated on appeal.
Olib v Pastoral 188 SCRA 692 (1990)
Where the main action is appealed, 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, copy of complaint, application
and affidavits for the attachment and the bond upon
the adverse party.
BUT the requirement of prior or contemporaneous
service of summons shall not apply where:
a. the summons could not be served despite
diligent efforts; or
b. the defendant is a resident of the Phils
temporarily absent therefrom; or
c. the defendant is a non-resident of the Phils;
or
d. the action is in rem or quasi in rem.
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Davao Light v. 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.
Onate 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.
Section 6. Sheriffs return
Section 7. Manner of attaching property
Manner of Attaching Property
a. real property, growing crops, interest
therein - Order and Notice to Register of
Deeds and Occupant or his agent within the
province;
b. personal property capable of manual
delivery - sheriff to take and safely keep it,
then issue a receipt;
c. stocks or shares - writ and notice to
president or managing agent;
d. debts, credits, bank deposits, royalties,
commissions,
personal
property
incapable of manual delivery - writ and
notice to debtor or person in control thereof;
e. interest in estate of deceased - writ and
notice to executor/administrator, clerk of
court where estate being settled, and
heir/devisee/legatee;
f. property in custodia legis- writ to the
court/agency and notice to custodian.
Section 8. Effect of attachment of debts, credits
and all other similar personal property
Perla Compania v. Ramolete 203 SCRA 487 (1991)
In order to bind the garnishee on a writ of
garnishment, previous service of summons is not
required; only service upon him of the writ of
garnishment is needed.
and a
Section 9. Effect
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property belonging to the estate of the decedent

Section 10. Examination of party whose property

is attached and persons indebted to him or
controlling his property; delivery of property to
sheriff

Section 11. When attached property may be sold

after levy on attachment and before entry of
judgment
When Property Attached May be Sold
a. hearing and notice;
b. property perishable or interests of all may be
subserved by sale;
c. sale by public auction; and
d. proceeds deposited in court.
Section 12. Discharge of attachment upon giving
counterbound
Section 13. Discharge of attachment on other
grounds
GROUNDS FOR DISCHARGE
1. Debtor has posted a counterbond or has
made the requisite cash deposit;
2. Improper or irregular issuance of attachment;
3. Improprer or irregular enforcement of
attachment;
4. Bond is insufficient;
5. Attachment is excessive, in which case the
discharge is limited to the excess;
6. Property attached is exempt from execution;
or
7. Judgment is rendered against the attaching
creditor.
Mindanao Savings and Loan Association, Inc. v.
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.
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 applicants bond and the same may
be proceeded against by the defendant.
Section 14. 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. (Sec. 16, Rule 39)
Uy v. CA 191 SCRA 275 (1990)
Where the sheriff attaches a property claimed by
a third person, such person may institute a separate
action to vindicate his right. The rule that property in
custody of the law may not be interfered with by

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another court applies only in cases where the
property belongs to the defendant or one in which he
has an interest.
Section 15. Satisfaction of judgment out of
property attached; return of sheriff
Section 16. Balance due collected upon an
execution; excess delivered to judgment obligor

b. When damages was sustained by a third

person not a party to the action.

RULE 58
PRELIMINARY INJUNCTION
Section 1. Preliminary injunction defined; classes

Satisfaction of Judgment
a. proceeds of sales of perishable or other
properties;
b. if there is a balance, sell real or personal
properties (attached) in sheriffs hand or with
clerk of court;
c. if there is a balance, collect garnished
amounts;
d. if there is a balance after (a) + (b) + (c) less
expenses of proceedings upon judgment,
ordinary execution.
Section 17. Recovery upon the counter-bond
Executory Judgment
When judgment becomes executory, 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. There is no need
to first execute judgment against the judgment obligor
before proceeding against sureties.

PRELIMINARY PROHIBITORY INJUNCTION

An order granted at any stage of an action or
proceeding prior to judgment or final order, requiring
a party or court, agency or person to refrain from a
particular act or acts.
PRELIMINARY MANDATORY INJUNCTION
An order granted at any stage of an action or
proceeding prior to the judgment or final order,
requiring the performance of a particular act or acts.
PRELIMINARY
INJUNCTION
Generally directed
against party to the
action but may be against
any person
Does NOT involve the
jurisdiction of the court

Section 18. Disposition of money deposited

Section 19. Disposition of attached property
where judgment is for party against whom
attachment was issued

May be the main action

itself or just a provision
remedy in the main
action

PROHIBITION
Directed against a court,
tribunal, or a person
exercising judicial, quasijudicial, 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 20. Claim for damages on account of

improper, irregular or excessive attachment

Section 2. Who may grant preliminary injunction

When to Apply for Damages Against the

Attachment Bond
a. Before trial;
b. Before appeal is perfected;
c. Before judgment becomes executory; or
d. In the appellateQuickTime
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Who May Grant

1. The court where the action or proceeding is
pending;
2. If the action or proceeding is pending in the
Court of Appeals or in the Supreme Court, it
may be issued by said court or any member
thereof.

Claims for Damages

Claims for damages cannot be subject of
independent action EXCEPT:
a. When principal case is dismissed by the trial
court for lack of jurisdiction without giving the
claiming party opportunity to prove claim for
damages;

Acosta v Alvendia 109 Phil. 1017 (1960)

The RTC cannot restrain or enjoin acts being
perpetrated or to be perpetrated outside of its
territorial boundaries.
Decano v. Edu 99 SCRA 410 (1980)

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Where the main action is the annulment of the
action of the respondent and the injunction is merely
corollary, trial court of locality where questioned act
is to be implemented has jurisdiction.
Section 3. Grounds for issuance of preliminary
injunction
GROUNDS FOR ISSUANCE
a. Plaintiff is entitled to relief demanded which
consists in restraining or requiring the
performance of acts (the latter is preliminary
mandatory injunction);
b. The commission of acts or non-performance
during pendency of litigation would probably
work injustice to the plaintiff; OR
c. Defendant is doing, threatening, attempting
or is procuring or suffering to be done some
act/s in violation of plaintiffs rights respecting
the subject of the action and tending to
render judgment ineffectual.
Actions Where Preliminary Injunction Lies
a. In petitions for relief from judgment entered
through fraud, accident, mistake or
excusable negligence;
b. In petitions for certiorari, prohibition, and
mandamus;
c. In actions for annulment of judgments
obtained through fraud;
d. In actions for annulment of judgments which
are not patent nullities (want of jurisdiction,
lack of due process of law) (Banco Espanol
v. Palanca, 37 Phil. 921);
e. To restrain continued breach of valid
negative obligation;
f. To enjoin repeated trespass on land;
g. To restrain city from proceeding with
abatement of nuisance per accidens before it
has been judicially declared as such;
h. To restrain voting of disputed shares of
stocks;
i. To restrain sheriff from selling property on
execution not belonging to judgment debtor;
j. To restrain criminal prosecutions as an
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to afford
adequate
protection to
constitutional rights of accused,
when there is a pre-judicial question
which is sub judice,
prosecution under an invalid law,
double jeopardy is clearly apparent,
court without jurisdiction over the
offense,

case of persecution rather than

prosecution,
charges manifestly false and motivated
by lust for vengeance,
there is clearly no prima facie case
against accused and,
motion to quash on said ground is
denied, and
preliminary injunction issued by SC to
prevent threatened unlawful arrest of
petitioners.

Actions Where Preliminary Injunction Does Not

Lie
a. 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;
b. When action for damages would adequately
compensate injuries caused
(Golding v.
Balatbat, 36 Phil. 941);
c. To prevent directors from discharging their
offices and restoring former directors;
d. To restrain criminal prosecution where the
Ombudsman had authorized the Special
prosecutor to conduct a preliminary
investigation or to file an injunction.
Allure Manufacturing v. CA 199 SCRA 285 (1991)
As a rule, 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.
Cagayan de Oro Landless Residents Association
v. CA 254 SCRA 200 (1996)
Although as a general rule, a court should not, by
means of preliminary injunction, transfer property in
litigation from the possession of one party to another,
this rule admits of some exceptions. For example,
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.
Sydicated Media Access Corp. v. CA 219 SCRA
794 (1993)
To be entitled to an injunctive write, a party must
show that: (1) the invasion of right sought to be
protected is material and substantial; (2) the right of
complainant is clear and unmistakable; and (3) there
is an urgent and paramount necessity for the writ to
prevent serious damage.

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Section 4. Verified application and bond for
preliminary injunction or temporary restraining
order
Section 5. Preliminary injunction not granted
without notice; exception
General Procedure
1. Verified application
2. Injunction bond
3. 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. Service of summons to precede or
accompany notice of raffle
5. Summary hearing for all parties necessary
before issuing TRO
EX-PARTE TRO
a. Matter of extreme urgency, and applicant will
suffer grave injustice and irreparable injury;
b. Executive judge of multiple-sala court or
presiding judge of single sala court may
issue ex-parte TRO effective for 72 hours
from issuance;
c. Judge shall immediately cause upon adverse
party service of summons, complaint,
affidavit, and bond;
d. Within 72 hours, 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);
e. If application for preliminary injunction is
denied or not resolved within said period,
TRO deemed automatically vacated (except,
if it is issued by CA or member- effective for
60 days from service of copy; if issued by SC
or member- effective until further orders).
IRREPARABLE INJURY
By irreparable injury is not meant such injury as is
beyond the possibility of repair, or beyond possible
compensation in damages, nor necessarily great
injury or great damage,QuickTime
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species of injury,
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to on the one hand or inflicted on the other; and
because it is so large on the one hand, or so small on
the other, is of such constant and frequent recurrence
that no fair or reasonable redress can be had
therefore in a court of law.
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.
EXCEPTION: When temporary restraining order may
be issued ex parte.
Duration of Temporary Restraining Order
If great or irreparable injury would result to the
applicant before the matter can be heard on notice,
the court may issue a temporary restraining order,
effective only 20 days from notice on the party sought
to be enjoined.
If the matter is of extreme urgency and the applicant
will suffer grave injustice and irreparable injury, the
judge may issue ex parte a TRO effective only 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.
The total period of effectivity of the TRO shall not
exceed 20 days including the 72 hours.
Federation of Land Reform Farmers of the
Philippines v. CA 246 SCRA 175 (1995)
While the efficacy of a TRO is, ordinarily, nonextendible and trial courts have no discretion to
extend it considering the mandatory tenor of Rule 58,
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.
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. There is no need for any
judicial declaration of dissolution.
Section 6. Grounds for objection to, or for motion
of dissolution of, injunction or restraining order
Grounds for Denial of Application or Dissolution
of Injunction
a. Showing of insufficiency of application;
b. Other grounds upon affidavits of the party or
person enjoined, which may be opposed by
the applicant also by affidavits;
c. 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;
d. Applicants bond is insufficient or defective.
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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. However, 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. (Sec.
1, Rule 10)
Garcia v. Burgos, reiterated in Admin. Circular
No. 7-99, promulgated 25 June 1999
No TRO, preliminary injunction or preliminary
mandatory injunction may issue against the
government in cases involving implementation of
government infrastructure projects.
De la Cruz v. Tan Torres 107 Phil. 1163 (1960)
Mere filing of a counterbond is not sufficient to
dissolve a writ of preliminary injunction. The writ may
be granted or dissolved only upon good and valid
grounds. To warrant dissolution, aside from the
counterbond, 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). Filing a
counterbond to dissolve injunction is not a matter of
right.
Section 7. Service of copies of bonds; effect of
disapproval of same
Section 8. Judgment to include damages against
party and sureties
Paramount Insurance v. 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; (2) such application for damages must be filed
before entry of judgment; and (3) there must be
hearing and notice to the surety.
Section 9. When final injunction granted
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RULE 59
RECEIVERSHIP
Receiver
An indifferent person between the parties to a cause,
appointed by the court to receive and preserve the
property or fund in litigation pendente lite, when it

does not seem reasonable to the court that either

party should hold it.
Section 1. Appointment of receiver
In What Cases Receiver May Be Appointed
Upon a verified application, one or more receivers of
the property subject of the action or proceeding may
be appointed by the court where the action is
pending, or by the Court of Appeals, or by the
Supreme Court, or a member thereof, in the following
cases:
a. 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, removed, or materially
injured unless a receiver is appointed;
b. 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, OR that the parties have
so stipulated in the contract of mortgage;
c. After judgment, to preserve the property
during the pendency of the appeal, or to
dispose of it according to the judgment, or to
aid in execution when execution has been
returned unsatisfied or the judgment debtor
refuses to apply his property to satisfy
judgment, or to carry out the judgment;
d. In other cases where it appears appointing
one is the most convenient and feasible
means to preserve, administer, or dispose of
the property in litigation.
Descallar v. 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. There is no showing that grave or
irremediable damage may result to the applicant
unless a receiver is appointed. The real property in
question is real property. Hence, it is neither
perishable nor consumable. Even though it is
mortgaged to a third person, there is no evidence that
payment of the mortgage obligation is being
neglected. In any event, applicants 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.
Section 2. Bond on appointment of receiver
Section 3. Denial of application or discharge of
receiver
Causes for Denial of Application or Discharge of
Receiver
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a. Appointment sought is without sufficient
cause;
b. Adverse party files sufficient bond for
damages;
c. Applicant bond is insufficient; or
d. Receivers bond is insufficient.

Person who neglects or refuses upon reasonable

demand to deliver to receiver property subject of the
receivership may be sanctioned as follows:
a. may be punished for contempt; and
b. 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.

Sanson v. Barrios 63 Phil. 198 (1936)

The appointment of a receiver lies within the
sound discretion of the court. It is not a matter of
absolute right even when stipulated for by the parties.

Section 8. Termination of receivership;

compensation of receiver

Ylarde v. Enriquez 78 Phil. 527 (1947)

An order appointing a receiver is interlocutory.
Certiorari, not appeal, is the proper remedy.

Termination of Receivership
Termination of receivership may be ordered by court
motu proprio or upon motion of either party after
determining, after due notice and hearing, that
necessity for receiver no longer exists.

Section 4. Oath and bond of receiver

Bond
Both the applicant for receivership and the receiver
appointed must file separate bonds.
Section 5. Service of copies of bonds; effect of
disapproval of same
Section 6. General powers of receiver
GENERAL POWERS OF A RECEIVER
1. Bring and defend, in such capacity, actions in
his own name;
2. Take and keep possession of property in
controversy;
3. Receive rents;
4. Collect debts due to himself as receiver or to
the fund, property, estate, person, or
corporation of which he is a receiver;
5. Compound for and compromise the same;
6. Make transfers;
7. Pay outstanding debts;
8. Divide the money and other property that
shall remain among persons legally entitled
to receive the same;
9. Invest funds in his
hands
only by order of the
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to action;
10. Do acts respecting the property as court may
authorize.
Section 7. Liability for refusal or neglect to deliver
property to receiver
Neglect or Refusal to Deliver Property

Section 9. Judgment to include recovery against

sureties
Claims Against Bond
In claims against the bond, it shall be filed,
ascertained and granted under the same procedure
as Section 20, Rule 57, whether it be damages
against the applicants bond for the unlawful
appointment of the receiver or for enforcing the
liability of the sureties of the receivers bond by
reason of the receivers management (in the latter
case, no longer need to file a separate action).

RULE 60
REPLEVIN
Calo v. Roldan 76 Phil. 445 (1946)
Delivery of personal property as a provisional
remedy consists in the delivery, by order of the court
of a personal property by the defendant to the
plaintiff, who shall give a bond to assure the return
thereof or the payment of damages to the defendant
if plaintiffs action to recovery possession of the same
property fails, in order to protect the plaintiffs right of
possession of said property, or prevent the defendant
from damaging, destroying or disposing of the same
during the pendency of the suit.
BA Finance v. CA 258 SCRA 102 (1996)
It is both a form of principal remedy and a
provisional relief. It is also described as a mixed
action because it is partly in rem and partly in
personam. It is in rem insofar as recovery of specific

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personal property is concerned, and it is in personam
insofar as the claim for damages is concerned.

him results in dismissal of the action against his codefendant third party possessor.

BONDS
a. Applicants Bond
- 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. (Sec.2, Rule 60)
b. Counterbond for Adverse Party
- also called as the redelivery bond
- for the return of the property to the
adverse party
- must be filed bond in the court where the
action is pending at anytime before
delivery of the property to the applicant
- in double the value of the property as
stated in applicants affidavit for delivery
of property to applicant if such delivery
be adjudged, and for payment of such
sum as may be recovered against him.
(Sec. 5, Rule 60).
c. Bond for Third-Party Claimant
- also called as the indemnity bond
- 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, on demand of said sheriff, 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. (Rule 60 Sec. 7).

Chua v. 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, and there are conflicting claims over
the seized property, the proper remedy is the filing of
the action for replevin, or an interpleader filed by the
Government in the proper court, not necessarily the
same one which issued the search warrant. However,
where there is still probability that the seizure will be
followed by the filing of a criminal action (eg.
Preliminary investigation provisionally dismissed), or
the criminal information has actually been
commenced or filed, and actually prosecuted, and
there are conflicting claims over the property seized,
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.

Section 1. Application
When Replevin Available
It is available only in an action where the principal
relief is the recovery of possession of personal
property. The plaintiff may apply for an order for the
delivery of such property to him, at the
commencement of the action or at any time before
answer.
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are needed to see

this picture. Corp. v. CA 96
Machineries Engineering
Supply
Phil.70 (1955)
Machineries bolted to the ground are real
property that may not be subject to replevin.

Servicewide Specialists v. CA 251 SCRA 70 (1995)

The chattel mortgagor is an indispensable party
in a replevin action preparatory to foreclosure
proceedings. Dismissal of the replevin action as to

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. Affidavit and bond

REQUISITES FOR REPLEVIN
1. Affidavit of the applicant, or some other
person who personally knows the facts,
showing that:
d. the applicant is the owner of the
property
claimed,
particularly
describing it, or is entitled to the
possession thereof;
e. the property is wrongfully detained
by the adverse party, alleging the
cause of its detention according to
the
best
of
his
knowledge,
information and belief;
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f.

the property has not been distrained

or taken for a tax assessment or a
fine pursuant to law, or seized under
a writ of execution or preliminary
attachment, or placed under custodia
legis, or if so seized, that it is exempt
from such seizure custody; and
g. the actual market value of the
property.
2. Bond which shall be double the value of the
property as stated in the affidavit.
Section 3. Order
Section 4. Duty of the sheriff
Sebastian v. Balino 224 SCRA 256 (1993)
After property is seized under a writ of replevin, it
is not to be delivered immediately to the plaintiff. The
sheriff must retain it in his custody for five days and
shall return it to the defendant if he posts a
counterbond. Immediate turnover to the plaintiff is not
justified by an absence to store the seized property.
The remedy is to store it in a bonded warehouse.
Section 5. Return of property
When Defendant is Entitled to the Return of the
Property
Defendant entitled to return of property taken under
writ if:
a. he seasonably posts redelivery bond;
b. plaintiffs bond is found to be insufficient or
defective and is not replaced with proper
bond; or
c. property is not delivered to plaintiff for any
reason (includes situation where applicant
failed to file bond to indemnify third party
claimant).
La Tondena v. CA 209 SCRA 553 (1992)
The law does not allow the defendant to object to
the insufficiency of the replevin bond or sureties, and
then to post a counterbond. The remedies are
alternative.
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Section 6. Disposition of property by sheriff

Section 7. 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, or any officer duly
representing it, the filing of such bond hall not be
required, and in case the sheriff is sued for damages

as a result of the replevin, he shall be represented by

the Solicitor General, and if held liable therefore, the
actual damages adjudged by the court shall be paid
by the National Treasurer out of the funds to be
appropriated for the purpose.
Section 8. Return of Papers
Section 9. Judgment
Section 10. Judgment to include recovery against
sureties
Sec. 20, Rule 57 Made Applicable
The amount, if any, to be awarded to any party upon
any bond shall be claimed, ascertained, and granted
under the same procedure as prescribed in Sec. 20,
Rule 57. The procedure in Sec. 20, 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.

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,
which provides as follows (all in keeping with the
financial capacity of the family):
a. Everything indispensable for sustenance;
b. Dwelling;
c. Clothing;
d. Medical attendance;
e. Education; and
f. Transportation.
PARTIES OBLIGED TO GIVE SUPPORT
Article 195 of the Family Code provides that the
following persons are obliged to give support:
a. The spouses;
b. Legitimate ascendants and descendants;
c. Parents and their legitimate children and the
illegitimate children of the latter; and
d. Legitimate brothers and sisters, whether of
full or half-blood.
Section 1. 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.
How Applied For

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It may be sought by a verified application filed in the
court where the proper action is pending. The verified
application may be made in the verified complaint or
petition in the suit itself, or in a separate motion, or
petition supported by affidavits.
Contents of Application
The application must state:
1. The grounds for the claim;
2. The financial conditions of both parties;
The application shall be accompanied by affidavits,
depositions, or other authentic documents in support
thereof.
When Filed
a. At the commencement of the proper action or
proceeding; OR
b. At any time prior to the judgment or final
order.
Jurisdiction Over Action for Support
RTC has exclusive original jurisdiction because the
subject of an action for support, regardless of the
amount claimed, is not capable of pecuniary action.
An action for support does not only involve the
determination of the amount to be given as support,
but also the relation of the parties, the right to support
created by the relation, the needs of the claimant, the
financial resources of the person from whom support
is sought, all of which are not capable of pecuniary
estimation. (Baito v. Sarmiento, 109 Phil. 148)
Section 2. Comment
Section 3. Hearing
Section 4. Order
Procedure
a. Application filed in court and served with
adverse party.
b. Adverse party files comment within 5 days
(unless different period is fixed) from service
of application.
c. Application is set for hearing not more than 3
days after comment is filed, or after the
expiration of theQuickTime
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fora its filing.
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Order
The court shall:
a. Determine provisionally the pertinent facts;
and
b. 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 aid in the proper

resolution of the question involved.
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. The court shall take
into account:
a. necessities of the applicant;
b. resources or means of the adverse party;
and
c. terms of payment or mode for providing
support.
Effect When Application is Denied
If application is denied: principal case shall be tried
and decided as early as possible.
Section 5. Enforcement of Order
Enforcement of Order
a. If the adverse party fails to comply with an
order granting support pendente lite: order of
execution, without prejudice to liability for
contempt;
b. 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, after due notice and
hearing in the same case, obtain a writ of
execution
to
enforce
his
right
of
reimbursement.
Saavedra v. Ibaez Estrada 56 Phil. 33 (1931)
An order for support pendent elite is intended to
be operative exclusively during the pendency of the
litigation. Hence, the voluntary dismissal of the action
by the plaintiff has the necessary effect of abrogating
the order.
Torres v. Hon. Teodoro Sr. 101 Phil. 422 (1957)
Where the court ordered support pendente lite to
be deposited each month, failure of the defendant to
deposit for one month is a separate and distinct
violation from a failure to deposit for another month.
Convictions for indirect contempt for failure to deposit
for separate months do not constitute double
jeopardy.
Mangoma v. Macadaeg 90 Phil. 508 (1952)
Where the oppositor to an application for support
pendente lite alleges sufficient ground to oppose
support (eg. Adultery by wife), the oppositor should
be given an opportunity to present evidence in
support of his opposition.

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San Juan v. Valenzuela 117 SCRA 926 (1982)
The trial courts 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.
Section 6. Support in Criminal Cases
a. When applicable:
1. in criminal actions where the civil liability
includes support for the offspring as a
consequence of the crime; and
2. the civil aspect thereof has not been
waive, reserved, or instituted prior to its
filing.
b. Who may file: (in successive order)
1. offended party
2. her parents
3. grandparents or guardian
4. State
Section 7. 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.
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.
If Recipient Fails to Reimburse
If the recipient fails to reimburse, the person who
provided the same may likewise seek reimbursement
thereof in a separate action from the person legally
obliged to give support.

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