Provisional Remedies (Rules 57-61)

Nature of provisional remedies

1. Provisional remedies are temporary, auxiliary, and ancillary remedies available to a

litigant for the protection and preservation of his rights while the main action is pending.
They are writs and processes which are not main actions and they presuppose the
existence of a principal action.

2. Provisional remedies are resorted to by litigants for any of the following reasons:

a. To preserve or protect their rights or interests while the main action is pending;

b. To secure the judgment;

c. To preserve the status quo; or

d. To preserve the subject matter of the action.

3. Provisional remedies specified under the rules are:

a. Preliminary attachment (Rule 57);

b. Preliminary injunction (Rule 58);
c. Receivership (Rule 59);
d. Replevin (Rule 60); and
e. Support pendent lite (Rule 61).
Jurisdiction over provisional remedies

1. The courts which grants or issues a provisional remedy is the court which has
jurisdiction over the main action. Even an inferior court may grant a provisional remedy
in an action pending with it and within its jurisdiction.

Preliminary Attachment (Rule 57)

1. Preliminary attachment is a provisional remedy issued upon order of the court where an
action is pending to be levied upon the property of the defendant so the property may
be held by the sheriff as security for the satisfaction of whatever judgment may be
rendered in the case(Davao Light and Power, Inc. vs. CA, 204 SCRA 343).
2. When availed of and is granted in an action purely in personam, it converts the action to
one that is quasi in rem. In an action in rem or quasi in rem, jurisdiction over the res is
sufficient. Jurisdiction over the person of the defendant is not required (Villareal vs. CA,
295 SCRA 511).

3. Preliminary attachment is designed to:

a. Seize the property of the debtor before final judgment and put the same in custodial
egis even while the action is pending for the satisfaction of a later judgment (Insular
Bank of Asia and America vs. CA, 190 SCRA 629);
b. To enable the court to acquire jurisdiction over the res or the property subject of the
action in cases where service in person or any other service to acquire jurisdiction over
the defendant cannot be affected.

4. Preliminary attachment has three types:

a. Preliminary attachment – one issued at the commencement of the action or at any time
before entry of judgment as security for the satisfaction of any judgment that may be
recovered. Here the court takes custody of the property of the party against whom
attachment is directed.

b. Garnishment – plaintiff seeks to subject either the property of defendant in the hands of
a third person (garnishee) to his claim or the money which said third person owes the
defendant. Garnishment does not involve actual seizure of property which remains in the
hands of the garnishee. It simply impounds the property in the garnishee’s possession
and maintains thestatus quo until the main action is finally decided. Garnishment
proceedings are usually directed against personal property, tangible or intangible and
whether capable of manual delivery or not.

c. Levy on execution – writ issued by the court after judgment by which the property of
the judgment obligor is taken into custody of the court before the sale of the property
on execution for the satisfaction of a final judgment. It is the preliminary step to the
sale on execution of the property of the judgment debtor.

5. The grant of the remedy is addressed to the discretion of the court whether or not the
application shall be given full credit is discretionary upon the court. in determining the
propriety of the grant, the court also considers the principal case upon which the
provisional remedy depends.

Grounds for issuance of writ of attachment

1. At the commencement of the action or at any time before entry of judgment, a plaintiff
or any proper party may have the property of the adverse party attached as security for
the satisfaction of any judgment that may be recovered in the following cases:

a. In an action for the recovery of a specified amount of money or damages, other than
moral and 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 Philippines with
intent to defraud his creditors;

b. In an action for money or property embezzled or fraudulently misapplied or converted to

his own use by a public officer, or an officer of a corporation, or an attorney, factor,
broker, agent or clerk, in the course of his employment as such, or by any other person
in a fiduciary capacity, or for a willful violation of duty;
c. In an action to recover the possession of property unjustly or fraudulently taken,
detained or converted, when the property, or any party thereof, has been concealed,
removed, or disposed of to prevent its being found or taken by the applicant or an
authorized person;

d. In an action against a party who has been guilty of a fraud in contracting the debt or
incurring the obligation upon which the action the action is brought, or in the
performance thereof;

e. In an action against a party who has removed or disposed of his property, or is about to
do so, with intent to defraud his creditors; or

f. In an action against a party who does not reside and is not found in the Philippines, or
on whom summons may be served by publication (Sec. 1).
Requisites

1. The issuance of an order/writ of execution requires the following:

a. The case must be any of those where preliminary attachment is proper;

b. The applicant must file a motion (ex parte or with notice and hearing);

c. The applicant must show by affidavit (under oath) that there is no sufficient security for
the claim sought to be enforced; that the amount claimed in the action is as much as
the sum of which the order is granted above all counterclaims; and

d. The applicant must post a bond executed to the adverse party. This is called an
attachment bond, which answers for all damages incurred by the party against whom
the attachment was issued and sustained by him by reason of the attachment (Carlos
vs. Sandoval, 471 SCRA 266).
Issuance and contents of order of attachment; affidavit and bond
1. An order of attachment may be issued either ex parte or upon motion with notice and
hearing by the court in which the action is pending, or by the CA or the SC, and must
require the sheriff of the court to attach so much of the property in the Philippines of the
party against whom it is issued, not exempt from execution, as may be sufficient to
satisfy the applicant’s demand, unless such party makes deposit or gives a bond in an
amount equal to that fixed in the order, which may be the amount sufficient to satisfy
the applicant’s demand or the value of the property to be attached as stated by the
applicant, exclusive of costs. Several writs may be issued at the same time to the
sheriffs of the courts of different judicial regions (Sec. 2).
2. An order of attachment shall be granted only when it appears by the affidavit of the
applicant, or of some other person who personally knows the facts, that a sufficient
cause of action exists, that the case is one of those mentioned in Section1, that there is
no other sufficient security for the claim sought to be enforced by the action, and that
the amount due to 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. The affidavit, and the bond must be filed with the court before the
order issues (Sec. 3).
Rule on prior or contemporaneous service of summons

1. No levy on attachment pursuant to the writ of preliminary attachment shall be enforced

unless it is preceded, or contemporaneously accompanied, by the service of summons,
together with a copy of the complaint, the application for attachment, the applicant’s
affidavit and bond, and the order and writ of attachment, on the defendant within the
Philippines.

2. The requirement of prior or contemporaneous service of summons shall not apply in the
following instances:

a. Where the summons could not be served personally or by substituted service despite
diligent efforts;

b. The defendant is a resident of the Philippines who is temporarily out of the country;

c. The defendant is a non-resident; or

d. The action is one in rem or quasi in rem(Sec. 5).

Manner of attaching real and personal property; when property attached is
claimed by third
person
Sec. 7. Attachment of real and personal property; recording thereof. – Real and personal
property shall be attached by the sheriff executing the writ in the following manner:

(a) Real property, or growing crops thereon, or any interest therein, standing upon the
record of the registry of deeds of the province in the name of the party against whom
attachment is issued, or not appearing at all upon such records, or belonging to the party
against whom attachment is issued and held by any other person, or standing on the
records of the registry of deeds in the name of any other person, by filing with the registry
of deeds a copy of the order, together with a description of the property attached, and a
notice that it is attached, or that such real property and any interest therein held by or
standing in the name of such other person are attached, and by leaving a copy of such
order, description, and notice with the occupant of the property, if any, or with such other
person or his agent if found within the province. Where the property has been brought
under the operation of either the Land Registration Act or the Property Registration Decree,
the notice shall contain a reference to the number of the certificate of title, the volume and
page in the registration book where the certificate is registered, and the registered owner or
owners thereof.

The registrar of deeds must index attachments filed under this section in the names of the
applicant, the adverse party, or the person by whom the property is held or in whose name
it stands in the records. If the attachment is not claimed on the entire area of the land
covered by the certificate of title, a description sufficiently accurate for the identification of
the land or interest to be affected shall be included in the registration of such attachment;

(b) Personal property capable of manual delivery, by taking and safely keeping it in his
custody, after issuing the corresponding receipt therefor;

(c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by

leaving with the president or managing agent thereof, a copy of the writ, and a notice
stating that the stock or interest of the party against whom the attachment is issued is
attached in pursuance of such writ;

(d) Debts and credits, including bank deposits, financial interest, royalties, commissions and
other personal property not capable of manual delivery, by leaving with the person owing
such debts, or having in his possession or under his control, such credits or other personal
property, or with his agent, a copy of the writ, and notice that the debts owing by him to
the party against whom attachment is issued, and the credits and other personal property in
his possession, or under his control, belonging to said party, are attached in pursuance of
such writ;

(e) The interest of the party against whom attachment is issued in property belonging to the
estate of the decedent, whether as heir, legatee, or devisee, by serving the executor or
administrator or other personal representative of the decedent with a copy of the writ and
notice that said interest is attached. A copy of said writ of attachment and of said notice
shall also be filed in the office of the clerk of the court in which said estate is being settled
and served upon the heir, legatee or devisee concerned.

If the property sought to be attached is in custodia legis, a copy of the writ of attachment
shall be filed with the proper court or quasi-judicial agency, and notice of the attachment
served upon the custodian of such property.

1. Certain remedies available to a third person not party to the action but whose property
is the subject of execution:

a. Terceria – by making an affidavit of his title thereto or his right to possession thereof,
stating the grounds of such right or title. The affidavit must be served upon the sheriff
and the attaching party (Sec. 14). Upon service of the affidavit upon him, the sheriff
shall not be bound to keep the property under attachment except if the attaching party
files a bond approved by the court. the sheriff shall not be liable for damages for the
taking or keeping of the property, if such bond shall be filed.
b. Exclusion or release of property – Upon application of the third person through a motion
to set aside the levy on attachment, the court shall order a summary hearing for the
purpose of determining whether the sheriff has acted rightly or wrongly in the
performance of his duties in the execution of the writ of attachment. The court may
order the sheriff to release the property from the erroneous levy and to return the same
 to the third person. In resolving the application, the court cannot pass upon the
question of title to the property with any character of finality but only insofar as may be
necessary to decide if the sheriff has acted correctly or not(Ching vs. CA, 423 SCRA
356).
c. Intervention – this is possible because no judgment has yet been rendered and under
the rules, a motion for intervention may be filed any time before the rendition of the
judgment by the trial court (Sec. 2, Rule 19).

d. Accion Reivindicatoria – The third party claimant is not precluded by Sec. 14, Rule 57
from vindicating his claim to the property in the same or in a separate action. He may
file a separate action to nullify the levy with damages resulting from the unlawful levy
and seizure. This action may be a totally distinct action from the former case.

Discharge of attachment and the counter-bond

1. If the attachment has already been enforced, the party whose property has been
attached may file a motion to discharge the attachment. This motion shall be with notice
and hearing. After due notice and hearing, the court shall discharge the attachment if
the movants makes a cash deposit or files a counter-bond executed to the attaching
party with the clerk of court where the application is made in an amount equal to that
fixed by the court in the order of attachment, exclusive of costs. Counter-bonds are
replacements of the property formerly attached, and just as the latter, may be levied
upon after final judgment. Note that the mere posting of counterbond does not
automatically discharge the writ of attachment. It is only after the hearing and after the
judge has ordered the discharge of attachment that the same is properly
discharged (Sec. 12).

2. Attachment may likewise be discharged without the need for filing of a counter-bond.
This is possible when the party whose property has been attached files a motion to set
aside or discharge the attachment and during the hearing of the motion, he proves that:

a. The attachment was improperly or irregularly issued or enforced; or

b. The bond of the attaching creditor is insufficient; or

c. The attachment is excessive and must be discharged as to the excess (Sec. 13); or
d. The property is exempt from execution, and as such is also exempt from preliminary
attachment(Sec. 2).