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PROVISIONAL REMEDIES

The Kind Of Provisional Remedies


1.
2.
3.
4.
5.

Preliminary Attachment
Preliminary Injunction
Receivership
Replevin
Support pendente lite

are writ and processes available during the pendency of an action to preserve and protect certain rights and interests
pending the result of the final judgment in the case.
When may it be
availed?

Preliminary
Attachment

May be sought at
any stage of the
action but before
final judgment.

Preliminary
Injunction
Receivership

-do-

Replevin

Support
pendente lite

Maybe filed at any


stage of the action
and even after
final judgment.
Must be file before
the defendant filed
his answer.
Maybe sought at
any stage of the
action and even
for the first time on
appeal.

How much
should be the
Bond posted?
The amount of
bond is addressed
to the sound
discretion of the
court.
-doBond is mandatory
and the court fixes
it.
The
bond
is
double the value of
the
personal
property seized.
No
bond
is
generally required.

RULE 57
PRELIMINARY ATTACHMENT
What Are Its Purposes?
1. To seize the property of the debtor in advance of the 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
instances where summons cannot be effected.
What Are The Requirements?
1. Affidavit which must contain all the allegations required and the circumstances on why it should be granted.

Bond it is to answer for the damages and costs, which may be adjudged, to the adverse party.
the defendant can file a counter bond at the courts discretion but the counter bond must not be lower than the
bond filed by the petitioner. Its purpose is to satisfy the judgment.
Note: No notice to the adverse party or hearing of the application is required.
2.

When Shall It Be Discharged?


1. The debtor has posted a counter bond.
2. The attachment was improperly issued, i.e., when there is no ground for attachment, or the affidavit and/or bond filed
are defective or insufficient.
3. The attachment is excessive.
4. The property attached is exempt from execution thus, also exempt from attachment.
5. The judgment is against the attaching party.

RULE 58
PRELIMINARY INJUNCTION
What is Preliminary Injunction?
A judicial writ, process or proceedings whereby a party is ordered to do or refrain from doing a particular act.
Prior notice is indispensable for the issuance of a writ of Preliminary Injunction(PI) and a Temporary Restraining
Order(TRO).
o Exception:
If the matter is of extreme urgency and the applicant may suffer injustice and injury, the court may issue an ex
parte TRO effective for only seventy-two(72) hours from issuance, renewable after summary hearing for a period
not exceeding twenty(20) hours which includes the original 72 hours if previously granted.
a.
b.

The Kinds Of Injunction


Preventive or prohibitive injunction requires a person to refrain from doing a particular act.
Mandatory injunction requires the performance of a particular act.

What Is Its Purpose?


- to preserve the status quo, i.e., the last actual, peaceable, uncontested status which precedes the pending controversy.
RULE 59
RECEIVERSHIP
Who is a Receiver?
- person appointed by the court in behalf of all the parties to an action for the purpose of preserving the property involved in the
suit and to protect the rights of all the parties under the direction of the court.
- as a rule, a party to the case nor the clerk of court should not be appointed.
Note: no action maybe filed against the receiver without leave of court.
Note: Ex parte appointment of a receiver is no longer authorized, a hearing must be conducted for that purpose.
What Are The Requirements?
1. Affidavit that the applicant has interest in the property that is the subject of the litigation and there is an inevitable
damage to it thus, the court must appoint a receiver.
2. Bond in the amount fixed by the court, to cover all the damages by reason of the appointment of a receiver. The court
may require additional bond as further security.

RULE 60
REPLEVIN
What Is Its Purpose?
- to recover the possession of personal property.
What Are The Requirements?
1. Affidavit must allege that the applicant is the owner or entitled to possess the property, the description of the
property, the actual market value of the property, and the person and why he withheld the property from the applicant.
2. Bond the amount to be posted must double the value of the property as stated in the affidavit.

RULE 61
SUPPORT PENDENTE LITE
What Is Its Purpose?
To compel adverse party to provide support while action is pending in court.
No bond is required from the applicant.
The application must be verified and shall be set for hearing not more than three(3) days from the filing of the petition.

SPECIAL CIVIL ACTION


RULE 62
INTERPLEADER
What is Interpleader?

It is a Special Civil Action whereby a person who has property in his possession or an obligation to perform, either
wholly or partially, who claims no interest in the subject, goes to the court and ask that conflicting claimants to that property
or obligation be required to litigate among themselves in order to determine finally who is entitled to the same.

E.g. a) a warehouseman, with goods being claimed by 2 or more persons.


b) an insurer, with 2 or more claimants to an insurance proceeds.
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
What are the requisites for Declaratory Relief?
1. there is a justiciable controversy.
2. there must be adverse claim between the real parties in interest.
3. the subject matter is a written instrument, (such as a deed, will, contract), statute or a law.
4. the relief sought is to determine the rights and duties under the written instrument or statute.
5. there must be no breach or violation of the written instrument or statute yet. [Note: The concept of a cause of action as
an act or omission by which a person violates the rights of another under ordinary civil action does not apply.]
6. there are no other available or sufficient remedy.
Instances When the Court Refuse to Grant Declaratory Relief?
1. When the decision would not terminate the controversy which gives rise to the action.

2.

When the declaration is not necessary and proper under the circumstances.

When should it not be used?


1. to be declared as a Filipino citizen.
2. to solve political question
3. to determine hereditary rights
4. to resolve hypothetical or theoretical questions
5. those involving administrative cases (must first avail of the principle of exhaustion of administrative remedies)
Conversion Into Ordinary Action
If after the filing of the petition but before the rendition of judgment, a breach or violation occurs, then the petition may be
converted into an ordinary action.

RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE COMELEC AND COA
Time for Filing the Petition
Within thirty (30) days from notice of the judgment or final order sought to be reviewed.
If the motion for reconsideration is denied, the aggrieved party has the remaining period to file the petition, but not less
than five(5) days in any event, reckoned from notice of denial.
Mode of Review
To be filed exclusively to the Supreme Court.
Petition for Review under rule 65.
[Note: The filing of the petition shall not stay the execution of the judgments or final orders, unless ordered by the Supreme
Court.]

RULE 65
CERTIORARI, PROHIBITION, AND MANDAMUS
CERTIORARI
Requisites:
1. there must be a controversy
2. the respondent is a tribunal, board or an officer exercising judicial or quasi-judicial functions [discretionary acts].
3. the respondents acted:
a. without jurisdiction
b. in excess of jurisdiction
c. with grave abuse of discretion amounting to lack or excess of jurisdiction
4. there must be no appeal or other plain, speedy and adequate remedy.
EXCLUSIVE REMEDY OF APPEAL AND CERTIORARI
GENERAL RULE: If after judgment and the petition for certiorari is availed of instead of the remedy of appeal, the certiorari must
fail because it may not be resorted to as a substitute to appeal; in such a case appeal is deemed abandoned.
EXCEPTIONS: Even when appeal is available, a writ for execution may be allowed;
1. When the appeal does not constitute a speedy and adequate remedy.
2.
When judgment were issued either in excess of or without jurisdiction.
3. When for certain special considerations as public policy or public welfare.
4. When the judgment is patently void.
5. When the decision in the certiorari case will avoid future actions.
PROHIBITION

Requisites
1. there must be a controversy
2. the respondent is a tribunal, board or an officer exercising judicial, quasi-judicial [discretionary acts] or ministerial
functions.
3. the respondent acted:
a. without jurisdiction
b. in excess of jurisdiction
c. with grave abuse of discretion amounting to lack or excess of jurisdiction
4. there must be no appeal or other plain, speedy and adequate remedy.
MANDAMUS
Requisites
1. there must be a clear legal right or duty.
2. the act performed must be practical- within the powers of the respondent to perform such if issued and he can comply
with it or else the essence will be defeated.
3. the respondent must be exercising a ministerial duty.
4. the duty or act to be performed must be existing a correlative right will be denied if not performed by the
respondents.
5. there must be no appeal or other plain, speedy and adequate remedy.
NOTE: An ordinary action for certiorari, prohibition and mandamus are independent action thus:
1. does not interrupt the course of the principal action.
2. does not affect the running of the prescriptive period involved in the case.
3. does not stay the execution of the judgment, unless a TRO or a PI is issued.
EXHAUSTION OF ADMINISTRATIVE REMEDY
GENERAL RULE: a motion for reconsideration is a prerequisite before the filing of a petition for certiorari, prohibition or
mandamus. Its purpose is to give the court a quo the opportunity to correct itself.
EXCEPTIONS:
1. If the judgment or order is patently void.
2. If there is extreme urgency.
3. If the issue has been raised and promptly passed by the court.
4. If the issue is purely a question of law.
5. If for public purpose.

RULE 66
QUO WARRANTO
What is Quo Warranto?
It is a special civil action to determine the right to the use or exercise of an office or a franchise, and to oust the holder from
its enjoyment if his claim is not well founded or if he has forfeited his right to enjoy the privilege.
Classification of a Quo Warranto proceedings.
1. Mandatory- brought by the Solicitor General or a public prosecutor when:
a. directed by the president, and
b. upon complaint or when he has reason to believe that it can be established by proof.
2. Discretionary- brought by the Solicitor General or a public prosecutor upon the request a person but there must be:
a. leave of court, and
b. indemnity bond
NOTE: The period for the filing of Quo Warranto proceedings is within one(1) year from the date the cause of action arose.
DISTINCTIONS
QUO WARRANTO

MANDAMUS

1. There is a usurpation of
public office by another
and assumes office.

There is an ousting from


office by another but does
not assume the office.

2. The right to office of the


occupant is not clear so
this right becomes the
subject of the action.

The right or legal duty is


clear, so the purpose of
the action is to enforce the
right.

QUO WARRANTO
1. As to the basis:
The occupant of the office
is disqualified from holding
the office because of
ineligibility or disloyalty to
the republic.

ELECTION CONTEST

2. As to the effect:
If the petitioner succeeds,
the respondent will be
ousted and the petitioner
will assume the office.

The person holding the


office is not entitled to it
because of irregularity in
the conduct of election.

If the protestant succeeds,


he will assume office if he
had obtained a plurality of
the valid vote.

RULE 67
EXPROPRIATION
EMINENT DOMAIN is the right of the state to acquire private property for public use upon payment of just compensation.
EXPROPRIATION is the procedure to be observed in the exercise of the right of eminent domain in instances such as:
1. When the owner refuses to sell his property.
2. When he agrees to sell but an agreement as to the price cannot be reached.
NOTE: All properties can be expropriated except money and chooses in action.

Two Stages in Expropriation


1. Determine first if the property taken is for public purpose.
2. If it was determined that it is for public purpose, resolve the issue on the amount to be paid or the just compensation
Just Compensation is determined at the time of the taking of the property or at the filing of the complaint which ever comes first.
It is the fair and full equivalent for the loss sustained by the defendant.
NOTE: The conflict in the payment of just compensation or an appeal does not delay the right of the plaintiff to enter into the
property and appropriate the same for public use.

RULE 68
FORECLOSURE OF REAL ESTATE MARTGAGE
Parties:
1.
2.
3.

mortgagee and mortgagor


successor in interest
junior encumbrancer/s

Nature and purpose:

The remedy used for the satisfaction of any monetary obligation, which a person owes to another, by proceeding
against the property used to secure the obligation.

It purpose is to cut off the rights of the owner of the property mortgaged used to secure the obligation and all rights
acquired thereto.
NOTE:
Within the one(1) year period given to the mortgagor to redeem, the buyer may take possession of the property but must
pay a bond equivalent to the amount of a rent.
If there is deficiency judgment, the action may continue in the same proceedings except to non-resident defendants.
Effect if the Junior Encumbrancer is not pleaded:
1. his right is not affected because he is merely a necessary party not an indispensable party.
2. the remedy of the senior encumbrancer is to file independent actions to foreclose the right to redeem by requiring the
junior encumbrancer to pay the amount stated in the order of execution.
JUDICIAL
FORECLOSURE
Requires court intervention
There is only an Equity of
Redemption is the right of
the defendant mortgagor to
extinguish the mortgage
and retain ownership of the
property by paying the debt
within 90-120 days after the
entry of judgment or even
after the sale but before
confirmation.

Governed by Rule 68

EXTRAJUDICIAL
FORECLOSURE
No court intervention
necessary
There exist a Right of
Redemption is the right of
the debtor, his successor in
interest or any judicial
creditor or judgment
creditor of the debtor or any
person having a lien on the
property subsequent to the
mortgage or deed of trust
under which the property is
sold to redeem the property
within one(1) year from the
registration of the of the
sheriffs certificate of
foreclosure sale.
Governed by sec.29-31 of
Rule 39
RULE 69
PARTITION

What is Partition?
It is the process of dividing and assigning property owned in common among the various co-owners in proportion to
their respective interests in said property.
When can Partition be made?
GENERAL RULE: It can be made anytime and the right to demand partition is imprescriptible.
EXCEPTION: If the co-owner asserts adverse title to the property in which case the period of prescription runs from such time of
assertion of the adverse claim.
TWO(2) STAGES:
1. Determination of the Propriety of the Partition. Includes the question whether or not the property is owned in common or
whether or not all the co-owners are made parties. If the court find that there must be partition, the aggrieved party may
appeal the decision.

2.

Actual Partitioning of the Subject Property.


The parties may agree on the partition by executing a Deed of Partition, where it will become final after the court
approves it. The aggrieved party may appeal the decision.
If the parties does come into an agreement as to how to partition the property, the case will be heard through trial by
commissioner.
NOTE: No partition of personal property.
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
FORCIBLE ENTRY
Possession of the land
by the defendant is
unlawful
from
the
beginning
as
he
acquires it by Force,
Intimidation, Strategy,
Threat
or
Stealth [FISTS]
No previous Demand
is necessary.

The plaintiff must


prove that he was in
prior
physical
possession
of
the
premises until he was
deprived.
The 1 year period is
generally counted from
the date of actual entry
on the land.

UNLAWFUL DETAINER
Possession is lawful but it
becomes illegal because of
the termination of the right
to the possession of the
property under his contract
w/ the plaintiff.
Formal
Demand is
mandatory if the ground is
non-payment of rentals or
failure to comply with the
lease contract
The plaintiff need not
have been in prior physical
possession.

Period is counted from


the date of last demand or
last letter of demand.

NOTE: Demand under this section is jurisdictional. It is a two-fold demand:


a. to pay and vacate; or
b. to comply with the conditions of the lease and vacate.
How is Demand Made?
1. personally
2. by posting it at the premises, possible only if there no person found in the premises
3. substituted service
4. registered mail
GENERAL RULE: Judgment of the MTC in ejectment proceedings is immediately executory when:
1) The defendant perfects his appeal.
2) He files sufficient supersedeas bond to pay the rents, damages and cost accruing down to the time of judgment appealed
from.[NOTE: supersedeas bond is required only if arrearages in the rentals is awarded in the judgment by the court]
3) He deposits with the appellate court the amount of rent due from time to time under a contract or reasonable amount for the
use and occupation of the property in the absence of a contract.

RULE 71
CONTEMPT
DIRECT CONTEMPT
1. Nature:
Summary in nature
2. Grounds:
c. Misbehavior in the
presence of or so near
the a court as to
interrupt a proceedings.
d. Disrespect towards the
court or judge.
e. Offensive personalities
towards others.
f. Refusal to be sworn or
to answer as a witness
or to subscribe an
affidavit or deposition.

INDIRECT CONTEMPT
There must first be a
hearing
a. Misbehavior of an
officer of a court in the
performance of his
official duties.
b. Disobedience or
resistance to a lawful
writ, order or judgment.
c. Any abuse or any
unlawful interference
with the proceedings
not constituting direct
contempt.
d. Any improper conduct
tending to degrade the
administration of
justice.
e. Assuming to be an
attorney or an officer of
the court w/o authority.
f. Failure to obey a
subpoena
g. Rescue, or attempted
rescue of a person or
property in the custody
of an officer.

3. Penalty:
a. RTC- fine not exceeding a.
P2,000 or imprisonment
not exceeding 10 days
or both.
b. MTC- fine not exceeding
P200 or imprisonment
b.
not exceeding 1 day or
both.

RTC- fine not


exceeding P2,000 or
imprisonment not
exceeding 10 days or
both.
MTCfine
not
exceeding P200 or
imprisonment
not
exceeding 1 day or
both.