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NALSOLIMAN Reviewer - RIANO

Preliminary Injunction – (Section 1 Rule 58) a motion for the court to issue a WPMI to restore him in his
possession
c. CA- Where a petition for certiorari is pending in CA and
WHEN? is an order granted at any stage of an action or
petitioner seeks to interrupt the course of the principal case
proceeding prior to the judgment or final order
through a WPI

WHAT? a. Requiring a party or a court, agency or a person to


What if the main action is injunction? It cannot be in MTC
refrain from a particular act or acts.
because RTC has exclusive original jurisdiction in civil actions
b. Requiring the performance of a particular act or
acts, in which case it shall be known as a Preliminary
To whom is it directed against?
Mandatory Injunction.
a. party
b. court
MAIN ACTION: an action seeking a judgment embodying a final
c. agency
injunction
d. person

PURPOSE: maintain status quo – last actual, peaceful and


What is the quantum of evidence? Prima facie evidence. Need
uncontested status that precedes the actual controversy, that
not be conclusive and complete, it is only required to show that
which existing at the time of the filing of the case.
they have ostensible right to the final relief prayed for in their
complaint. Based on initial or incomplete evidence. Only a
Requisites for granting PI (Sec 3 Rule 59 ROC 1997)
SAMPLING is needed to give trial court an idea of the justification
1. Clear and unmistakable right (right in esse)
for the WPI.
2. Material and Substantial invasion of such right
a. Verified petition + summary hearing
3. There is urgent need to issue t writ in order to prevent
b. Evidentiary hearing -> Evidence and documents
irreparable injury to the applicant
4. No other ordinary, speedy, and adequate remedy exists to
What are the requirements for the preliminary injunction or TRO
prevent the infliction of irreparable injury
to be granted? (Sec 4 Rule 58)
Example:
1. Verified application
-PI may not be enforced to restrain the execution of final and
executory decision in ejectment case because his right has
2. Bond to be approved by Court unless exempted by the court
been declared inferior or inexistent in relation to the rights of
a. amount fixed by Court
the other party
b. to pay for party or damages which he may sustain by
-expired labor contract
reason of the injunction or TRO if the court should finally
decide that the applicant was not entitled thereto.
When may it be demanded? (RCP)
-> The party filing a bond shall serve a copy of such bond on
1. R- a. Applicant is entitled to the RELIEF demanded,
the other party. The latter may take exceptions or object to
b. and the whole or part of such relief consists in
the sufficiency of the bond, or of the surety or sureties
RESTRAINING the commission or continuance of the
thereon.
act or acts complained of,
c. or in REQUIRING the performance of an act/s. either
What if bond is found to be insufficient? Injunction shall be
for a limited period or perpetually.
dissolved

2. C- COMMISSION, continuance or non-performance of the


What if the bond of the adverse party is found to be
act or acts complained of during the litigation would
insufficient? Injunction shall be granted or restored
probably work injustice to the applicant.
Exemption: A judge was made respondent in special civil
action for prohibition in his official capacity as judge MTC.
3. P- a. That a PARTY, court, agency or a person is doing,
The Court issued a WPI after petitioner posted a bond. ->
threatening, or is attempting to do, or is procuring or
The CFI decided that there was no basis for the petition and
suffering to be done, some act or acts
the bond posted to support the WPI was to answer damages
b. PROBABLY in violation of the rights of the applicant
incurred by the judge.-> SC said the posting of bond should
respecting the subject of the action or proceeding and
not have been ordered as no private person would be
tending to render judgment ineffectual.
prejudiced by the WPI. Any damage incurred by him in
WHO MAY GRANT? (Section 2 Rule 58) By the court where the
connection with the case would be official in nature and for
action or proceeding is pending. (May be CA or in SC)
which no fund of private origin has to answer.
Example:
a. In the MTC – Within 5 days from filing of complaint of
What is the effect of filing counterbond? It does not
forcible entry and unlawful detainer (under Sec 15 of Rule 70)
necessarily warrant the dissolution of the writ of preliminary
b. In the RTC- Within 10 days from perfection of the appeal to
the RTC in an unlawful detainer or forcible entry case may file

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NALSOLIMAN Reviewer - RIANO

injunction. The Court still weighs the relative damages that Example A person who loses
may be suffered by the parties. possession by FISTS
*An injunction issued to stop an unauthorized act should not may within 5 days
be dissolved by the mere filing of a counterbond, otherwise from filing of
counterbond will be used as a vehicle for the continuance on complaint of forcible
an illegal act. entry present a
motion for issuance of
3. Notice preceded or contemporaneously accompanied by WPMI
service of summons
- When an application for WPI or TRO is included in complaint or Injunction vs. Preliminary Injunction
initiatory pleading if filed in multiple sala, shall be raffled after INJUNCTION as a main or PRELIMINARY INJUNCTION
notice to and presence of adverse party or person to be enjoined. principal action- is an As a provisional remedy- it is
EXEMPTION when Contemporaneous service of summon is independent action. not a cause of action itself but
not applicable: Judgment is immediately merely and adjunct to a main
a. Summons could not be served personally or substituted executory and is not stayed suit.
despite diligent efforts, by an appeal except upon As an ancillary remedy-
b. resident of PH temporarily absent such terms ie. Bond or cannot exist except only as a
c. Non-resident otherwise as may be part of an independent action
considered proper for the or proceeding
4. Summary Hearing within 24hours after the sheriff’s return of security or protection of the
service and/or the records are received by the branch selected by rights of the adverse party.
raffle and to which records shall be transmitted immediately
* if raffled -> period within which to conduct summary Nature:
hearing is not 24h after case has been raffled but 24h after 1. Extraordinary peremptory remedy
the records are transmitted to the branch to which it is 2. Merely temporary subject to the final disposition of the
raffled. principal action.
3. Its purpose is to preserve status quo of the plaintiff during the
Kinds of Preliminary Injunction pendency of the suit.
a. Prohibitory Injunction - commands one to refrain from doing a 4. Provisional- constitutes a temporary means availed of during
particular act the pendency of the main action
b. Mandatory Injunction – which commands the performance of 5. Ancillary- it is a mere incident in and is dependent upon the
some positive act to correct a wrong in the past result of the main action
7. It is an equitable remedy and one who claims for equity must
Prohibitory Mandatory Injunction do so with CLEAN HANDS.
Injunction Based on: He who seeks equity must do equity and he who
Nature Requires one to Requires the comes into equity must come with clean hands.
REFRAIN from a PERFORMANCE of a 8. Finding of facts and opinion of a court when issuing the WPI are
particular act/s particular act/s interlocutory in nature
9. Issuance is subject to judicial discretion
Commands the Can there be GAD? Yes, it will imply a capricious and
performance of some whimsical exercise of judgment that is equivalent to lack of
positive act to correct jurisdiction, or where the power is exercised in an arbitrary
a wrong in the past or despotic manner by reason of positive duty or to a virtual
Status of Action has not yet Act has already been refusal to perform the duty enjoined, or to act at all in
Action been performed performed and this contemplation of law.
because it is act has violated the
restrained or rights of another. Action for Injunction vs Petition for Declaratory Relief
prevented by the Action for Petition for
injunction Injunction Declaratory Relief
Purpose Prevent a future or Restore the status quo Type Ordinary Civil Special Civil Action
threatened injury and then preserve the Action (under Rule 63)
status quo which has Reliefs sought Seeks to enjoin or Declaration of rights
been restored compel a party to or duties, or
Other Consummated acts More cautiously perform certain determination of any
cannot be enjoined regarded because it acts question or validity
requires to do an act arising under a
statute, executive

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order or regulation, particular act or tribunal,


ordinance or any acts corporation, board,
other governmental officer or person to
regulation, under perform a duty
which his rights are which the law
affected and before specifically enjoins
breach or violation, as a duty either
because there was
Preliminary Prohibitory Injunction vs Petition for Prohibition an unlawful
Preliminary Petition for neglect of such
Prohibitory Prohibition duty or a person
Injunction was unlawfully
Type of Action It is not an Special civil action excluded from the
independent action and an use and enjoyment
independent action of a n office to
To whom it is Directed against a It is not directed which such person
directed party litigant against a party is entitled.
EXEMPTION: It may litigant but against
be directed against a tribunal, General Rule: No PI shall be granted without hearing and prior
a court, and agency corporation, board, notice to the party or persons sought to be enjoined
or person officer or person
exercising judicial, a. Exemption: 20 days from service on party to be enjoined
quasi-judicial or If in facts shown or in verified application, there is great or
ministerial irreparable injury would result before matter can be heard on
functions notice, court may issue an exparte TRO to be effective for a period
When can it It applies even if Applies when the of 20 days from service on the party sought to be enjoined.
apply there is no issue of acts or proceedings *Within the 20 day period the court must order said party or
jurisdiction, GAD, of any tribunal, person to show cause at a specified time and place why injunction
or other similar corporation, board, should not be granted
acts which amount officer or person *The court shall determine within the 20 day period whether or
to lack of are without or in not the PI shall be granted.
jurisdiction excess of tis or his *The rule against non-extendability of the 20 day effectivity of a
jurisdiction, or with TRO is absolute if issued by the RTC.
GAD amounting to *Failure to put period in the TRO does not convert it to a PI, when
lack of jurisdiction there is an omission the 20 day period is deemed incorporated.
Basis Need to protect an Jurisdictional Issue *Effectivity of 20 day period TRO is from service on the party or
existing and clear person sought to be enjoined.
legal right that
faces a threated b. Exemption to the Exemption: 72 hrs + service of summon and
violation by a party, documents
court, agency, or If the matter is of extreme urgency and the applicant will suffer
person grave injustice and irreparable injury, the executive or presiding
judge may issue a n exparte TRO effective for 72 hrs from
Preliminary Mandatory Injunction v Petition for Mandamus issuance, but shall immediately comply with service of summons
Preliminary Mandamus and documents to be served.
Mandatory *within the 72 hrs, the judge shall conduct a summary hearing to
Injunction determine whether the TRO shall be extended until the
Type of Action Provisional Special Civil Action application for the PI can be heard.
Remedy and a main action *Effectivity of 72h TRO is upon issuance and not from the service
or notice to the party or person sought to be enjoined.
To whom it is A party litigant Tribunal, Board,
Limitation: In no case shall the total effectivity of the TRO exceed
directed against EXEMPTION: may officer or person
20 days including the original 72 hrs.
also issue against a (Rule 65)
court, agency or
c. Exemption: 60 days ->If issued by CA it shall be valid for 60 days
person
from service on the party
Definition Requiring the One which seeks a
*Effectivity of 60 days TRO is from service on the party sought to
performance of a judgment
be enjoined
commanding a

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NALSOLIMAN Reviewer - RIANO

*A second TRO after the expiration of the 60 day period is a or person from the party party
patent nullity. sought to service or sought sought to
be notice to to be be
d. Exemption: Until further orders -> If issued by SC or member of enjoined. the party enjoine enjoined
SC or person d
If denied or not resolved within the said period: The TRO is sought to
deemed automatically vacated. be
*the trial court, CA, SB or CTA that issued WPI against a lower enjoined
court, board, officer, or quasi judicial agency shall decide the main
case within 6 months from issuance of writ. Temporary Restraining Order vs Writ of Preliminary Injunction
*it is improper for a judge to order a hearing on the issuance of a Temporary Writ of
temporary restraining order where it was not prayed for in the Restraining Order Preliminary
complaint Injunction
Definition Is an order to
NOTE On extension or renewal: maintain the status
General Rule: quo between or
1.The effectivity of TRO is not extendible without need of any among the parties
judicial declaration to that effect. until the
2. No court shall have authority to extend or renew the same on determination of
the same ground it was issued. the prayer for a writ
-Extending or renewing the TRO is prohibited only if of preliminary
the extension or renewal is based on the very same ground upon injunction
which the temporary restraining order was originally issued. May it be YES> May be NO> Cannot be
Exemption: If another ground exist aside from original ground, an granted ex granted ex parte if it granted without
extension or renewal of the order could be made subject, subject parte? shall appear from notice and
to the same limitations imposed by the Rules. facts shown by hearing
*The trial court, CA, SB or CTA that issued the WPI against lower affidavits or by the
court, board or quasi judicial agency shall decide the main case or verified application
petition within 6 months from issuance of the writ. that great or
irreparable injury
SUMMARY: would result to the
20 days 72 hrs 60 days Indefinite applicant before the
period TRO period TRO period TRO
matter can be heard
TRO
on notice.
Court Lower Lower CA SC
courts courts
The application for injunction or restraining order may be
May it be Yes, but Yes, but No, it is
extended denied/ if granted be dissolved:
on other not for a a patent
or 1. Upon showing of its INSUFFICIENCY
ground + period nullity
renewed? 2. On other grounds upon affidavits of the party or person
judicial exceeding
enjoined, which may be opposed by the applicant also by
declaratio 20 days
affidavits
n initially
3. It appears after hearing that although the applicant is entitled
It may be
to the injunction or restraining order, the issuance or continuance
renewed
thereof, as the case may be, would CAUSE IRREPARABLE DAMAGE
or
to the part or person enjoined while the applicant can be fully
extended
compensated for such damages which the applicant may suffer by
thereafter
the denial or the dissolution of the injunction or restraining order.
but on
4. It may be modified is PI or restraining order granted is too
other
great.
ground +
judicial
declaratio
n
Ex parte? No Yes No No
Effectivity from upon from from
service on issuance service service
the party and not on the on the

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NALSOLIMAN Reviewer - RIANO

When may there be prohibition on injunction? 11. Injunction is not available to restrain the collection of taxes
1. RA 89751- No court except the SC shall issue any TRO, PI or PMI Exemption: When special circumstances warrant as when
against the government tor any of its subdivision, officials or any the collection of taxes would cause irreparable injury
person or entity whether public or private acting under the
government discretion, to restrain, prohibit or compel the 12. Trial Courts are enjoined from issuing orders releasing
following acts. imported articles impounded by the BOC.
(a) Acquisition, clearance and development of the right-of-
way and/or site or location of any national government 13. An injunction cannot be issued against consummated acts
project; *if it had happened nothing more could be enjoined
(b) Bidding or awarding of contract/ project of the national
government as defined under Section 2 hereof; 14. An injunction cannot be issued to transfer possession or
(c) Commencement prosecution, execution, control of a property to another when the legal title is still in
implementation, operation of any such contract or project; dispute between the parties and whose legal title has not been
(d) Termination or rescission of any such contract/project; clearly established.
and
(e) The undertaking or authorization of any other lawful 15. Injunction may not be issued for the purpose of establishing
activity necessary for such contract/project. new relations bet parties.

2. Under the Rule of Procedure in Environmental Cases: 16. A preliminary injunction cannot be issued where there is a lack
“Except the SC ,no court can issue a TRO or WPI against lawful of a clear and unmistakable right on the part of the APPLICANT as
actions of govt agencies that enforce environmental laws or when the complainant’s right is doubtful or disputed.
prevent violations thereof.”
17. General rule: Injunction will not lie to restrain criminal
3. In any case involving or growing out of labor disputes except as prosecution:
otherwise provided in Art 218 and 264 of the Labor Code Exemption:
It is the NLRC which may grant injunctive relief under Art 218 of a. afford adequate protection to the constitutional rights of
the Labor Code. the accused
Exemption: Prohibition does not apply when injunction is sought b. when necessary for the orderly administration of justice
by a third person whose property is sought to be levied upon, to or to avid oppression or multiplicity of actions
satisfy the liability of another person since the matter neither c. when double jeopardy is clearly apparent
involves nor grows out of a labor dispute insofar as the third party d. where the charges are manifestly false and motivated by
is concerned. the lust for vengeance
e. there is clearly no prima facie case against the accused
4. PD 605-> in cases involving concessions, licenses and other and a motion to quash on that ground has been denied.
permits issued by public administrative officials or bodies for the
exploitation of natural resources. 18. No TRO or WPI shall be issued against the extrajudicial
foreclosure of mortgage on the allegation that the loan has been
5. PD 1818> prohibits injuction or TRO against the execution or paid or not delinquent unless the application is verified and
implementation of government infrastructure projects and supported by evidence of payment.
essential government projects including arrastre and stevedoring
operations 19. Arbitration

6. Against PARC in cases connected with application, 20.Only CA and SC may issue TRO or WPI for Anti money
implementation or enforcement of the CARP. laundering cases

7. Against Asset Privatization Trust 21. Decision by Ombudsman are immediately executory and may
not be stayed by injunction or appeal
8. A court may not interfere by injunction with orders of another
court of co-equal rank or decrees of a court with concurrent or When may GAD be invoked as a ground to nullify writ?
coordinate jurisdiction a. capricious and whimsical exercise of judgment, equivalent to
lack or excess of jurisdiction
9. RTC may not issue injunction against quasi judicial bodies of b. power must be exercised in an arbitrary manner by reason of
equal rank such as the Social Security Commission and SEC passion or personal hostility and
10. RTC has no jurisdiction to issue WPI against execution of an
award for workmen’s compensation

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An act to Ensure the Expeditious Implementation and Completion of Government
Implementation and Completion of Government Infrastructure Projects

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NALSOLIMAN Reviewer - RIANO

c. must be patent and gross as to amount to an evasion of a Resolve the motion.


positive duty or a virtual refusal to perform a duty enjoined by The Motion to declare B in default should be granted. B failed to
law. files his answer within the period prescribed by the rules. Filing of
petition for certiorari did not have the effect of suspending the
proceedings in the case and the running of the reglementary
Illustration: period. B Should have obtained a restraining order from the RTC
when he filed the petition for certiorari.
Requisites of WPI or TRO
B. To stay execution of judgment with an action for
An application for a WPI with a prayer for TRO is included in a annulment of judgment
complaint and filed in multi sala court. Being urgent in nature,
the Executive Judge immediately raffled the case. The judge to A, grocery owner, sued B before RTC for payment of
whom it was raffled to issued a TRO. Is the TRO valid? merchandise. Sheriff failed to effect service of summons on B at
No. It is not valid for the following reasons: Rizal. Court ordered the publication of the summons and a copy
1. Facts show it is a multi sala court, hence only the executive of the complaint in a newspaper of general circulation in Rizal.
judge may issue B was no longer residing in Rizal and consequently did not
2. There is no showing that the matter is of extreme urgency and become aware of the collection suit against him, he failed to file
that the applicant would suffer from grave or irreparable injury if his answer in court. He was declared in default and a judgment
the desired TRO would not be issued. (Sec 5 Rule 58) was rendered against hum One year after the date of judgment,
a levy on execution was made on B’s properties. What remedies
May a WPI be issued ex-parte? are available to B and what forum should he go for relief.
No. It cannot be issued without notice and hearing (Sec 5 Rule 58) 1. An action for annulment of judgment should be filed with CA,
the action being one rendered without jurisdiction over the
When may WPI or TRO be used as a remedy person of B. Summons by publication is not proper unless it be
clearly established that the whereabouts of the defendant is
A. To stay a Motion to declare defendant in default while unknown.
certiorari is pending 2. To enjoin the execution of sale, the action for annulment must
be coupled with a prayer for the issuance of WPI or restraining
Defendant filed a petition for certiorari alleging GAD by the order.
MTC. During pendency of petition in the RTC, the plaintiff filed a 3. Preliminary injunction may be availed of when petition for relief
motion to declare defendant in default for failure to answer to under Rule 38 is filed. Assuming that the party has not yet filed for
the complaint. Will the granting of MTC to the motion be a an execution, the pendency of a petition for relief will not prevent
procedural error? a motion for the execution of judgment. To stay execution, the
No, because the period to file an answer was not interrupted by issuance of e WPI should be applied for in the court where
the filing of the petition. The defendant should have obtained a PI petition is filed.
or TRO from the RTC to interrupt the course in the MTC.
The filing of a petition does not interrupt the course of the C. Effect of dismissal of petition for relief on the WPI
principal case unless a temporary restraining order or a writ of
preliminary injunction is issued against the respondent tribunal or A judgment was rendered by RTC ordering D to pay P a sum of
officer. To arrest the course of the principal action during the money. D filed a petition for relied and obtained a WPO staying
pendency of certiorari proceeding, there must be a restraining enforcement of judgment. After hearing, the RTC dismissed the
order or WPI from higher court directed to the lower court. petition. P moved for execution of judgment. Should P’s motion
be granted?
A filed with the MTC of Manila an action for specific Yes, the dismissal of the petition has the effect of dissolving the
performance against B a resident of QC to compel him to WPI. There is no more injunction that will stay the execution of
execute a deed of conveyance covering a parcel of land situated the judgment that has already become final and executory.
in QC (with value of P19k)
02-Jan-2003- B received the summons and a copy of the D. To restore possession in a complaint for forcible entry or
Complaint unlawful detainer
10-Jan-2003- B filed a MTD the complaint on the ground of lack Sec 15 of Rule 70, A possessor deprived of his possession through
of jurisdiction contending that the subject matter of the suit was forcible entry or unlawful detainer may, within 5 days from the
incapable of pecuniary estimation filing of the complaint present a motion in the action for forcible
Court denied motion. B filed with RTC Petition for Certiorari entry or unlawful detainer for the issuance of a writ of preliminary
praying that the said Order be set aside because the MTC has no mandatory injunction to restore him in his possession.
jurisdiction over the case
13-Feb-2003- A filed with the MTC a motion to declare B in
default.

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NALSOLIMAN Reviewer - RIANO

Receivership (Rule 59) preserving, administering or disposing of the property in


litigation

Main action: Receivership, like injunction may also be principal


Ex. Spouse abandons the other and fails to comply with his
action as one referred in Sec. 4 Rule 39.
obligations, aggrieved spouse may petition for receivership
for judicial separation of property
Requisite in simple terms:
1. actual interest
During pendency of appeal, the appellate court may allow
2. such property is in danger of being lost, removed or materially
application for the appointment of a receiver to be filed in and
injured OR
decided by the court of origin and the receiver appointed to be
3. whenever it appears to be the most convenient and feasible
subject to the control of said court.
means of preserving or administering the property in litigation.

Requirement:
How? Upon verified application
1. Verified application

Where? Where action is pending or CA or SC


2. Applicant must have an interest in the property or funds of the
action. Such property is in danger of being lost, removed or
What? one or more receivers of the property subject of the action
materially injured OR whenever it appears to be the most
or proceeding may be appointed by the court in the following
convenient and feasible means of preserving or administering the
cases: (VMJC)
property in litigation.

1. Verified application + proof -> Interest + lost, removed, injured


3. Bond executed to the party against whom the application is
-> administer and preserve
presented
-in amount fixed by court
When it appears from the verified application and such other
-for payment of damages he may sustain by reason of
proof as the court may require,
appointment if such was procured without sufficient cause
a. that the party applying for the appointment of a receiver has an
-Court may require additional bond as further security
interest in the property or fund which is the subject of the action
-person filing a bond shall serve a copy on each interested
or proceeding,
party, who may except to its sufficiency or of the surety or
b. and that such property or fund is in danger of being lost,
sureties thereon.
removed or materially injured unless a receiver be appointed to
administer and preserve it
What if bond is insufficient or surety fails to justify (and bond
sufficient in amount with sufficient sureties approved after
2. Action by mortgagee for foreclosure -> wasted, dissipated,
justification is not filed)? Application shall be denied or receiver
injured + insufficient value to discharge debt/ stipulated
discharged

When it appears in an action by the mortgagee for the


If bond of adverse party is found to be insufficient in amount or
foreclosure of a mortgage
surety fails to justify (and bond sufficient in amount with
a. that the property is in danger of being wasted or dissipated or
sufficient sureties approved after justification is not filed)?
materially injured
Receiver shall be appointed or reappointed
b. and that its value is insufficient to discharge the mortgage
debt, or
3. Oath and Bond of receiver before entering upon his duties
c. that the parties have so stipulated in the contract of mortgage
-before entering upon his duties, the receiver shall be sworn
to perform them faithfully,
3. After judgment-> preserve during appeal; dispose as per
-and shall file a bond, executed to such person and in such
judgment; judgment obligor refuse to apply property as
sum as the court may direct to the effect that he will
satisfaction of judgment
faithfully discharge his duties in the action or proceeding
and obey the orders of the court
After judgment, to preserve the property during the pendency of
an appeal, or to dispose of it according to the judgment or to aid
4. With notice set for hearing
execution when the execution has been returned unsatisfied or
Hearing is necessary because the grounds for a receivership
the judgment obligor refuses to apply his property in satisfaction
require the resolution of factual issues.
of the judgment, or otherwise to carry the judgment into effect

Kinds of Bonds
4. Convenient to preserve, administer and dispose
1. Bond required for the appointment of receiver
2. Bond required of a receiver before entering upon his duties
Whenever in other cases it appears that the appointment of a
receiver is the most convenient and feasible means of

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NALSOLIMAN Reviewer - RIANO

3. One which the court may require at any time after appointment Nature of receivership in Rule 59: directed to the property which
of the receiver as further security is the subject of the action or proceeding.
It presupposes that there is an action or proceeding and that the
How to discharge? property subject of such action requires its preservation.
1. When denied -> Adverse party files a bond executed to the
applicant Purpose:
-in amount fixed by court 1. to protect and preserve the rights of the parties during the
-to apply for damages he may suffer by reason of the acts, pendency of the main action,
omissions or other matters specified in the application as 2. during the pendency of an appeal, or
ground for such appointment 3. as an aid in the execution of a judgment as when the writ of
2. When receiver discharge -> Same reason as denial or if it is execution has been returned unsatisfied.
shown that appointment is without sufficient cause
Receiver- a person appointed by the court in behalf of all the
Powers of receiver (Sec 6 Rule 59) parties to the action for the purpose of preserving and conserving
1. bring and defend, in such capacity, actions in his own name the property in litigation and prevent its possible destruction or
2. take and keep possession of the property in controversy dissipation, if it were left in the possession of any of the parties.
3. receive rents
4. to collect debts due to himself as receiver or to the fund, Is a receiver an agent or representative of any party to the
property. Estate, person or corporation of which he is the receiver action? NO.
5. to compound for and compromise the same a. He is an officer of the court
6 to make transfers -exercising his functions in the interest of neither plaintiff
7. to pay outstanding debts nor defendant, but for the common benefit of all the parties
8. to divide the money and other property that shall remain in interest.
among the persons legally entitled to receive the same b. performs duties subject to the CONTROL of the Court and every
9. to do such acts respecting property as the court may authorize question involved in the receivership may be determined by the
court
Limitation (investment of funds):
1. the funds in the hands of a receiver may be invested only by Who may be a receiver? -> should be disinetersted, impartial
order of the court upon written consent of all the parties to the - A party to the litigation is supposed to be a disinterested person.
action Neither party should be appointed as a receiver without the
2. A receiver strictly speaking has no power to make any contract consent of the other.
binding the property or fund in his custody or to pay out funds in
his hands without the authority or approval of the court. May a clerk of court be a receiver? No. he is also burdened with
his position.
Suits against receiver: No action may be filed by or against a
receiver without leave of the court which appointed him Illustration:
A filed a complaint against B for foreclosure of mortgage. During
Effect of failure to deliver or refusal to deliver property to pendency of the foreclosure, A found out that B was gradually
receiver as determined and ordered by the court: disposing his properties, and those left are no longer sufficient
->Contempt + Money/Value of property + damages to answer for the mortgage. Judgment was rendered in favor of
punished for contempt and shall be liable to the receiver for the A, but it is not yet final. What is your advise to A?
money or the value of the property and other things so refused or In the action for foreclosure of a mortgage, the court may appoint
neglected to be surrendered together with all damages that he a receiver if it can be shown that property mortgaged is in danger
may have sustained by the party or parties entitled thereto as of being wasted, dissipated or materially injured, and that its
consequence of such refusal or neglect. value is probably insufficient to discharge the mortgage debt.
Note: receivership may be provisional or main action.
Termination of receivership: by motion or motu proprio
1. due notice to all interested parties In a suit for sum of money, plaintiff applied for appointment of a
2. hearing receiver of defendant’s property to assure payment of
3. settle the accounts of the receiver obligation. Should the court grant?
4. direct the delivery and order the discharge of the receiver from NO. It should be denied. Receivership is not available in a mere
further duty suit for collection of a sum of money for the purpose of assuring
5. Court may allow reasonable compensation -> to be taxed as the collection of debt.
costs against the defeated party or apportioned, as justice
requires.

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NALSOLIMAN Reviewer - RIANO

Replevin (Rule 60) any time before the delivery to the applicant, require the return
thereof by filing with court a redelivery bond executed to the
applicant double the value of the property as stated in the
How? Party praying for the recovery of possession of personal
applicant’s affidavit and by serving a copy of such bond
property may apply for an order for the delivery of such property
*If for any reason the property is not delivered to the applicant,
to him -> Affidavit and Bond
the sheriff will return it to adverse party
a. Affidavit -> he or some other person personally knows the facts
e. Sheriff must file the order with his proceedings indorsed
1. That the applicant is the OWNER of the property
thereon with court within 10 days after taking the property
particularly described therein, or is entitled to possession
f. Judgment – any liability of surety under the replevin bond must
thereof
be included therein
2. Property is wrongfully detained by the adverse party
alleging cause of detention according to the best of his
What if property is no longer in good condition?
knowledge, information and belief
Party entitled to delivery may refuse to accept it and may ask for
3. Property has not been distrained or taken for tax
alternative remedy which is payment.
assessment or a fine pursuant to law or seized under a writ
of execution or preliminary attachment, or otherwise placed
Nature of Replevin
under custodial egis, or if so seized it is exempt from such
1. Both principal and provisional remedy
seizure or custody.
Principal- regain possession of personal chattels being wrongfully
-> principle: there would be interference with possession
detained from the plaintiff by another
before the function of the law had been performed as to the
Provisional- allow plaintiff to retain the thing during the pendency
process under which property was taken
of the action and hold it pendent lite -> possessory in nature and
When in custodial legis? Lawfully held, seized in accordance
determines nothing more than possession
with the rule against warrantless searches and seizures. Only
when property is lawfully taken by virtue of a legal writ?
2. Ordinary statutory proceeding to adjudicate rights to the title
Property subject of litigation is not by fact alone in custodia
or possession of personal property
legis.
3. Actual market value
3. Apply for an order for the delivery of the property subject the
b. Bond executed to adverse party in double the value of the
action during pendency-> Seeking replevin
property as stated in the affidavit
a. for the return of the property to the adverse party if such
Replevin vs. Preliminary Attachment
return be adjudged,
Replevin Preliminary
b. and payment as he may recover from the applicant in the
Attachment
action
Purpose Recover personal Not to actually
LIMITATION: Where the award of damages was based on
property capable recover any
Art. 19 and 20 of NCC, recourse on the bond for payment is
of manual delivery property but
not proper
from adverse simply to place
party the property
When? COMMENCENT of action or at any time BEFORE ANSWER
under the custody
of the court to
Who? Court where pending, depending on value
secure satisfaction
Exemption: RTC has no jurisdiction to take cognizance of the
of judgment that
petition for replevin in proceedings under Bureau of Customs
may be rendered
in favor of the
What next?
applicant at some
a. ORDER -corresponding writ of replevin describing the personal
future time
property alleged to be wrongfully detained and requiring the
Ownership of Property belongs Property does not
sheriff to forthwith to take such property into his custody
Property either to the belong to the
b. Upon receiving order, sheriff must serve a copy on the adverse
plaintiff or one plaintiff but
party together with copy of application affidavit and bond and
over which the defendant
must take the property or any part thereof. Sheriff must demand
plaintiff has a right
delivery. And if not delivered, he must cause the building or
of possession
enclosure to be broken open to take the property in his
possession. He must keep it in a secure place and shall be Custody of Availed of when Can be availed of
responsible for its delivery to party entitled. property the defendant is in even if the
c. Upon taking of property by sheriff he must wait 5 days for the actual or property is in the
move of adverse party. constructive custody of third
d. If adverse party objects to sufficiency of bond, surety, he possession of the person
cannot immediately require the return. If he does not object, at personal property

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NALSOLIMAN Reviewer - RIANO

Ground May be availed of Needs to show EFFCT: Upon filing of bond, sheriff will not be liable to damages
Concealment? without showing that the property for taking or keeping such property to any 3rd party claimant.
that property is is being removed, NOTE:
being concealed concealed or -No claim for damages for the taking or keeping may be enforced
or disposed of to disposed of against the bond unless the action therefor is filed within 120
the prejudice of days from the date of the filing of the bond.
the applicant -3rd part is not precluded from vindicating his claim to the
Limitation when Property under May be availed of property and may maintain a separate action and seek injunctive
in custodia legis custodial egis even if in custodia relief against the sheriff.
cannot be object legis
of replevin Illustration:
Bond Double the value Equal to that fixed
of the property by court which is A sold 5000 piculs of sugar to B payable on demand. Upon
amount enough to delivery of sugar to B, latter did not pay its purchase price. After
satisfy the value the lapse of time from date of delivery, A brought an action of
of the property to rescission and asked for manual delivery/replevin of sugar to
be attached him. Is A correct?
Yes, replevin may be granted. B is deemed to be wrongfully
NOTE: In detaining the goods, Upon filing the requisite affidavit and bond
injunction, the writ of replevin may be granted.
amount is fixed by
court, unless Support Pendente Lite (Rule 61)
exempted by
court. Same as in
When? Commencement or at any time prior to the judgment or
receivership.
final order

What if personal property is seized under warrant? How? Verified application stating grounds for the claim and
Remedy is replevin -> under the belief that seizure will not financial conditions of both parties accompanied by affidavits,
anymore be followed by filing criminal case depositions, or other authentic documents.
Remedy is Interpleader -> if there are conflicting claims over
seized property Comment
Remedy is to question validity of seizure or warrant-> if there is a A copy of the application and all supporting documents shall be
probability that seizure will be followed by the filing of criminal served upon adverse party and shall have 5 days to comment
action, or criminal action has been commenced or filed or unless diff period is fixed by court.
prosecuted. It shall be verified and must be accompanied by supporting docs.

What is the effect of dismissal of complaint? Hearing – To be set not more than 3 days after comment is filed
The dismissal of the replevin case for failure to prosecute results or expiration of period for filing comment
in the restoration of the parties’ status prior litigation. There was
no adjudication on the merits which means that there was no If granted – the court shall fix the money to be provisionally paid
determination of the issue of who has better right to possess. taking into account the necessities and resources of parties

When property is claimed by third person Who may avail? Any party as long as there is legal ground
A person who claims the property taken under a writ of replevin
may protect his rights by: Support in criminal cases
a. executing an affidavit of his title, or right to the possession of Where civil liability includes support as consequence of crime and
the property and grounds. civil aspect has not been waived, reserved or instituted prior to
b. serves the affidavit upon the sheriff while the latter has filing, the accused may be ordered to provide SPL.
possession of property, Application may be filed successively by offended party, parents,
c. a copy of the affidavit shall be served upon the applicant as grandparents, guardian or state in the corresponding criminal
well. case during its pendency.
EFFECT: Sheriff who receives affidavit will no longer be bound to
keep the property under replevin or obligated to deliver to the Effect of failure to comply: court may upon motion or motu
applicant. proprio issue an order of execution against him without prejudice
d. applicant may file a bond approved by the court to indemnify to his liability for contempt.
third party claimant in sum not less than value of property

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NALSOLIMAN Reviewer - RIANO

Any third person who furnished that support may after due notice
and hearing obtain a writ of execution to enforce his right of
reimbursement against person ordered to provide support.

Restitution if he should not have been liable


Return of amoutns already paid + legal interest, without prejudice
to obtain reimbursement form person legally obliged to give the
support.
What if recipient fails to reimburse? Person who provided the
same may seek reimbursement in a separate action from person
legally obliged to give such support.

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