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Provisional Remedies TSN

Based on the lectures of Atty Tiu


3 – Manresa 2018 Ateneo de Davao University

5. Temporary Visitation Rights


July 10, 2018. ICFC
6. Hold Departure Order
What is provisional remedy?
7. Protection Order
In the case of Calo v Roldan The provisional remedies denominated
attachment, preliminary injunction, receivership, and delivery of 8. Provisional remedies under rule of provisional orders
personal property, provided in Rules 59, 60, 61, and 62 of the Rules of
Court, respectively, are remedies to which parties litigant may resort for 9. Spousal Support
the preservation or protection of their rights or interest, and for no other 10. Child Support
purpose, during the pendency of the principal action.
11. Child custody
What are the purposes of provisional remedies? (note: from LA
TSN) 12. Visitation rights

 To preserve the litigant’s rights or interests while the main 13. Hold Departure order
action is pending
14. Order of protection
 To secure judgment
15. Administration of Common property
 To preserve the status quo
-0-
 To preserve the subject matter of the action
Who may grant a provisional remedy?
The court where the case is pending

Cite provisional remedies found in the Rules of Court


1. Rule 57 – Preliminary Attachment
2. Rule 58 – Preliminary Injunction
3. Rule 59 - Receivership
4. Rule 60 - Replevin
5. Rule 61 – Support Pendente Lite

What is the purpose of preliminary injunction?


In the case of Calo v Roldan, The purpose of preliminary prohibitory
injunction is to preserve the status quo of the things subject of the action
or the relation between the parties, in order to protect the rights of the
plaintiff respecting the subject of the action during the pendency of the
suit. Because, otherwise or if no preliminary prohibition injunction were
issued, the defendant may, before final judgment, do or continue the
doing of the act which the plaintiff asks the court to restrain, and thus
make ineffectual the final judgment rendered afterwards granting the
relief sought by the plaintiff.
What is the purpose of receivership?
To preserve the property during the pendency of the litigation or to
dispose of it according to the judgment when it is finally rendered or
otherwise to carry the judgment into effect. (LA TSN)
What is the purpose of replevin?
To protect the plaintiff’s right of possession of said property, or
prevent the defendant from damaging, destroying or disposing of
the same during the pendency of the suit. (LA TSN)
What is the purpose of Support Pendente Lite?
To provide support or allowance during the pendency of the main
action
What other provisional remedies are there?
1. Deposit
2. Writ of Sequestration
3. Under the Rule on Custody of Minors
4. Temporary Custody

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Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

 A co-party on his cross-claim; and

RULE 57 – PRELIMINARY ATTACHMENT  A third-party plaintiff on his third-party claim

What is a Writ of Preliminary Attachment? What are the classes of attachment?

A preliminary attachment may be defined, paraphrasing the Rules of  Preliminary Attachment


Court, as the provisional remedy in virtue of which a plaintiff or other
 Final Attachment
party may, at the commencement of the action or at any time thereafter,
have the property of the adverse party taken into the custody of the  Garnishment – a specie of attachment or execution for reaching
court as security for the satisfaction of any judgment that may be credits belonging to a judgment debtor and owing to him from a
recovered. It is a remedy which is purely statutory in respect of which stranger to the litigation (from LA TSN)
the law requires a strict construction of the provisions granting it.
(Davao Light v CA) When may preliminary attachment be available?
1.At the COMMENCEMENT of the action, or
What is the purpose of preliminary attachment? 2. At any time before entry of judgment
In the case of PCIB v Alejandro, The purposes of preliminary What is the subject of the attachment?
attachment are: (from Resci notes) The property of the ADVERSE party
To seize the property of the debtor in advance of final judgment and to Can you ask or apply for the issuance of a preliminary
hold it for purposes of satisfying said judgment, as in the grounds stated attachment in a case of injunction?
in paragraphs (a) to (e) of Section 1, Rule 57 of the Rules of Court; or
In the case of Calo v Roldan, To each kind of action or actions a proper
To acquire jurisdiction over the action by actual or constructive seizure provisional remedy is provided for by law. The Rules of Court clearly
of the property in those instances where personal or substituted service specify the case in which they may be properly granted. .
of summons on the defendant cannot be effected, as in paragraph (f) of
the same provision. Attachment may be issued only in the case or actions specifically stated
in section 1, Rule 59, in order that the defendant may not dispose of his
Maam: As to the 2nd purpose, it is stated there in Rule 57, Sec 1 (f), in property attached, and thus secure the satisfaction of any judgment that
an action against a defendant who is not found in the Philippines or to may be recovered by plaintiff from defendant. The special remedy of
whom summons may be served thru publication, therefore, the purpose preliminary prohibitory injunction lies when the plaintiff's principal action
of the attachment is for you to be able to serve summons by publication is an ordinary action of injunction, that is, when the relief demanded in
precisely because the defendant is not found in the Philippines. That is the plaintiff's complaint consists in restraining the commission or
only applicable in an action which is PURELY PERSONAL IN NATURE. continuance of the act complained of, either perpetually or for a limited
What is an example of a personal action? Collection for sum of money. period, and the other conditions required by section 3 of Rule 60 are
In a collection for sum of money, you look for a property of the present.
defendant. To secure the obligation or to secure the judgment you may
have on that action, attach the property, then you convert that action When you attach a property, you are seizing a property belong to the
into quasi in rem action thereby allowing you to serve summons by defendant or in the possession of defendant so that it can be used to
publication. That is the purpose. Not so much as to secure the obligation satisfy the judgment that you may obtain later. It is to preserve the
or the judgment, but primarily for the case to move forward. Otherwise property for the satisfaction of the judgment. But the main action here
hanggang filing of the complaint ka na lang kasi wala ang defendant. is for injunction, to prevent the defendants from doing something. To
How will the case move if you don’t serve summons. That is basic. enjoin them from doing something. The two are inconsistent with each
other. The lesson here is the kind of provisional remedy that you will
Now, by serving summons by publication because you already attached apply for should be consistent with the nature of the main action filed.
the property of the defendant, is there acquisition of jurisdiction over (from 2015 TSN)
the person of the defendant? there is none. You cannot acquire
jurisdiction over the person of the defendant. how can that be if he is Under sec 1 (a), in what action may preliminary attachment be
outside the Philippines and the publication is done here in the available?
Philippines. (a) In an action for the recovery of a specified amount of money or
So what is the purpose of the publication? The publication merely damages, other than moral and exemplary, on a cause of action
complies with the basic requirement of due process. There is no actual arising from law, contract, quasi-contract, delict or quasi-delict
acquisition of jurisdiction over the person of the defendant. The against a party who is about to depart from the Philippines with intent
jurisdiction is acquired over the RES by the attachment of the property. to defraud his creditors;
That is why whatever action or decision the court may render over an Maam: so recovery of a specified amount of money or damages
action, that is binding over the property which is subject to the
jurisdiction of the court.
Can the defendant complain? He cannot complain because there is What kind of action is contemplated here?
compliance of due process. There was publication of summons.
So the object of the action here is to recover money. A sum of money
So that is one of the purposes of attachment. It is not simply to secure or damages in the form of money. So it can be any action as long as the
the judgment that the plaintiff may have or will obtain in the action, it end result there is you want to recover money. (from 2015 TSN)
is also to be able to serve summons by publication so that the case will
move on and judgment can be executed over the property that is already What are the basic elements for attachment to issue under this
subject to the jurisdiction of the court. paragraph?
1. The action must be for the recovery of a specified amount of
money or damages
Who may avail of the remedy of attachment? (from UST 2016)
2. The basis for the recovery is law, contract, quasi-contract,
Any party may avail of preliminary attachment as long as any of the delict or quasi-delict
grounds therefore exists. He may be:
3. The adverse party is:
 The defendant on his counterclaim

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Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

a. About to depart from the Philippines the obligation to pay the sum of money, that obligation must be due and
demandble.
b. With intent to defraud his creditors
As to the amount of the money, what is the requirement in
Now if the allegation of the complaint states that the defendant Mialhe v De Lencquesaing?
is merely a foreigner. Is that enough for attachment to issue?
What happened in the case of KO Glass? Mialhe v De Lencquesaing
KO Glass v Valenzuela R: While it is true that from the aforequoted provision attachment
may issue "in an action against a party who resides out of the
This is a complaint for the recovery of sum of money with issuance Philippines, " irrespective of the nature of the action or suit, and while
of a preliminary attachment. The grounds for the issuance of the writ it is also true that in the case of Cu Unjieng, et al vs. Albert, 58 Phil.
of preliminary attachment in this case is that KO Glass is a foreigner; 495, it was held that "each of the six grounds treated ante is
that he has sufficient cause of action against the said defendant; and independent of the others," still it is imperative that the amount
that there is no sufficient security for his claim against the defendant sought be LIQUIDATED.
in the event a judgment is rendered in his favor.
What is wrong with this case?
R: There was no ground for the issuance of the writ of preliminary
This is a complaint for damages. The Petitioner Alain filed a verified
attachment.
complaint against respondent Elaine, for Damages in the amount of P2M
Under sec 1 (a) the creditor is about to depart from the Philippines
and attorney's fees of P250,000.00 allegedly sustained by him.
with intent to defraud his creditors
Respondent Pinzon however, did not allege that the defendant The CA had exceeded its jurisdiction in issuing the writ of attachment
Kenneth O. Glass "is a foreigner (who) may, at any time, depart from on a claim based on an action for damages arising from delict and quasi
the Philippines with intent to defraud his creditors including the delict the amount of which is uncertain and had not been reduced to
plaintiff." He merely stated that the defendant Kenneth O. Glass is a judgment just because the defendant is not a resident of the Philippines.
foreigner. Because of the uncertainty of the amount of plaintiff's claim it cannot be
said that said claim is over and above all legal counterclaims that
There being no showing, much less an allegation, that the defendants
defendant may have against plaintiff. The attachment issued in the case
are about to depart from the Philippines with intent to defraud their
was therefore null and void.
creditor, or that they are non-resident aliens, the attachment of their
properties is not justified. Maam: so it must be fixed. You must fix the amount or at least, must
be ascertainable and not vague. If it’s not liquidated its vague. So the
requirement here is that the amount must be SPECIFIED and be
So the allegation that is lacking here is the intent to defraud? ASCERTAINABLE.
No. While Pinzon may have stated in his affidavit that a sufficient cause
of action exists against the defendant Kenneth O. Glass, he did not state Under par (b), what kind of action will justify the issuance of a
therein that "the case is one of those mentioned in Section 1 hereof; writ of attachment?
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 is as (b) In an action for money or property embezzled or fraudulently
much as the sum for which the order granted above all legal counter- misapplied or converted to his own use by a public officer, or an
claims." It has been held that the failure to allege in the affidavit the officer of a corporation, or an attorney, factor, broker agent, or clerk,
requisites prescribed for the issuance of a writ of preliminary in the course of his employment as such, or by any other person in
attachment, renders the writ of preliminary attachment issued against a fiduciary capacity, or for a willful violation of duty;
the property of the defendant fatally defective,
If the allegation in the affidavit states that KO Glass is a
foreigner with intent to defraud his creditors, would that be What are the elements that must concur for the issuance of
sufficient? attachment?

Maam: So the keyword here is the foreigner is about to depart and the The action must be for recovery of sum of money or property that is:
departure is intended to defraud his creditors. So if you just say there 1. Embezzled, or
he is a foreigner, he is defrauding the creditors, I don’t think that you
will be able to get an attachment. There has to be an allegation of that 2. Fraudulently misapplied, or
DEPARTURE or possibility of the impending departure of the defendant
for the purpose of defrauding his creditors. So those are the key 3. Converted to personal use by a
allegations that you must state in the application to justify the issuance a. public officer, or
of attachment under (a). THE DEFENDANT IS ABOUT TODEPART FROM
THE PHILIPPINES WITH INTENT TO DEFRAUD HIS CREDITORS. b. an officer of a corporation, or

Now as to the obligation that is to be enforced by your action c. an Attorney


for sum of money, what is the requirement on the amount of
d. Factor
money to be recovered before an attachment can be issued?
e. Broker agent
General v De Venecia
f. Clerk
R: The remedy by attachment is not available in respect to a demand
which is not due and payable, and if an attachment is issued upon There must be a duty or a fiduciary relationship and such relationship
such a demand without statutory authority it is void. enabled the person to commit the acts above
It must be observed that under our rules governing the matter the The act is done in the course of his employment
person seeking a preliminary attachment must show that "a sufficient
cause of action exists" and that the amount due him is as much as In the case of Tan v Zandueta, was there a fiduciary
the sum for which the order of attachment is granted" relationship between the parties here to justify the issuance of
the writ of attachment? Yes
Maam: So if it’s not yet due and demandable there is yet no cause of
action. That is why you must have a valid cause of action in as far as Tan v Zandueta (1935)

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Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

place on February 1, 1919, a statement of his account with a debit


This is an action for the recovery of the sum of P 22, 500 against balance was submitted and approved.
petitioner. They won P45,000 in the lottery. The capital used for the
purchase of the ticket was shared by them. Petitioner allegedly R: Having, as he had, absolute and almost exclusive control over the
appropriated the entire prize to the exclusion of respondent. function of the corporation and its funds by virtue of his triple
capacity as president, treasurer and general manager, the
R: As to the first ground, we find that the writ of preliminary defendant-appellant should have been more scrupulous in the
attachment was issued in strict conformity to the law, because the application of the funds of said corporation to his own use. As a
complaint wherein the said attachment was issued alleged that the trustee of said corporation, it was his duty to see by all legal means
petitioner, after collecting the prize of a ticket in the last possible that the interests of the stockholders were protected, and
sweepstakes, consisting of the amount of P50,000, belonging to the should not abuse the extraordinary opportunity which his triple
two, that is the petitioner and the respondent Tiu Chay (alias Tan position offered him to dispose of the funds of the corporation.
Kia), appropriated the entire prize exclusively for himself, in complete Ordinary delicacy required that in the disposition of the funds of the
disregard of said Tiu Chay (alias Tan Kia), knowing that one-half corporation for his personal use, he should be very careful, so as to
thereof did not belong to him to said respondent; that he was merely do it in such a way as would be compatible with the interest of the
a depository or agent of the latter as to said half, and that the stockholders and his fiduciary character.
petitioner acted in the manner stated notwithstanding the fact that
he was required to turn over to the respondent the part of the prize The conduct of the defendant-appellant in connection with the funds
won corresponding to the latter. of the corporation he represented was more than an irregularity; and
while it is not sufficiently serious to constitute a criminal fraud, it is
Was there a fiduciary relationship? And what kind? undoubtedly a fraud of a civil character, because it is an abuse of
Yes. A depository or agent of the half portion pertaining to the confidence to the damage of the corporation and its stockholders,
respondent. and constitutes one of the grounds enumerated in section 424, in
Who bought the sweepstakes ticket? connection with section 412, of the Code of Civil Procedure for the
Both of them. They purchased the ticket with a part of the capital issuance of a preliminary attachment
invested in a sari-sari store. Maam: so in this case, the corporate funds were converted or
Maam: The funds came from both of them. So the winnings should also embezzled by the president-treasurer and general manager of the
be given to the both of them. Now one party did not give the share of company, and because of that conversion or embezzlement, there was
the other party. justification for the issuance of the writ of attachment.

What was the justification here for issuance of the attachment So under par (b), what is important to consider here is:
writ?  The position of the defendant.
The petitioner, after collecting the prize of a ticket in the last  The relationship of the defendant vis-à-vis the plaintiff and
sweepstakes, appropriated the entire prize exclusively for himself, in
complete disregard of respondent Tiu Chay knowing that one-half  The nature of the action is for the recovery of the property
thereof did not belong to him. that was converted, embezzled, or fraudulently
misappropriated by the defendant
Maam: Now this presupposes that one party was able to claim the prize
and did not give the share of the other party. So when he claimed the The crucial element here is FRAUD. There is breach of a fiduciary duty
entire prize of P45,000, then he has that obligation to deliver the half of due to fraud similar to the par (a) where the defendant is about to leave
that to the other. So as far as the half of P45,000 is concerned, he is a the country with intent to defraud his creditors. So on the first two cases
mere depository. He is not holding that P22,500 for himself but for the where attachment may issue, the element of fraud is present although
other party. He therefore has no right to keep it. So the justification the application of fraud may vary, still, there is fraud present.
there is there was an obligation to deliver and yet he violated that
obligation. So in a way it was possession of the share of the other party
in trust for the other party. That is how the writ of attachment is justified Existence of FRAUD
in that case.
(a) (b)
In the case of Olsen and Co v Olsen, was the attachment against
the president justified here? Yes. Fraud under par (a) would Fraud under par (b) is fraud that
characterize the intent why the is in the provision of the breach
defendant wants to depart from of the fiduciary obligation. Fraud
Olsen and Co v Olsen the Philippines is the very cause of action.

Walter Olsen was president-treasurer and general manager of Walter So in par (b), the defendant occupies a position of trust and he violated
Olsen & Co and exercised direct and almost exclusive supervision the trust that is basically in the main cause of action.
over its function, funds and books of account until about the month Take note of the varying species of fraud that should be present in par
of August, 1921. During that time he has been taking money of the (a) and (b) which is an essential element for the issuance of a writ of
corporation without being duly authorized to do so either by the attachment.
board of directors or by the by-laws, the money taken by him having
amounted to the considerable sum of P66,207.62. Of this sum, In par (c), what kind of action is contemplated here for the
P19,000 was invested in the purchase of the house and lot now under issuance of a writ of attachment?
attachment in this case, and P50,000 in the purchase of 500 shares
of stock of Prising at the price of P100 per share for himself and (c) In an action to recover the possession of property unjustly or
Marker. A few days afterwards he began to sell the ordinary shares fraudulently taken, detained or converted, when the property, or any
of the corporation for P430 each. The defendant- appellant part thereof, has been concealed, removed, or disposed of to prevent
attempted to justify his conduct, alleging that the withdrawal of the its being found or taken by the applicant or an authorized person;
funds of the corporation for his personal use was made in his current What are the elements?
account with said corporation, in whose treasury he deposited his
own money and the certificates of title of his shares, as well as of his  There is an action to recover possession of property that is unjustly
estate, and that at the first meeting of the stockholders, which took or fraudulently taken, detained, or converted

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Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

 The property has been concealed, removed or disposed for recovery of possession and your provisional remedy is a writ of
preliminary attachment on the ground that possession of your property
 The purpose of the concealment is to prevent its being found or is fraudulently taken away. Therefore, the defendant who has
taken by the applicant or authorized person possession, the case will be against him that the writ of attachment will
Maam: Again there is fraud here. You see the element of fraud present be issued precisely to seize the property that was taken away.
under par (c) and the nature of the action here is for the recovery of It is under this paragraph where we diverge from the general rule, that
specific PERSONAL property. the property to be attached is owned by the adverse party and not
Why is it that the property here is limited to personal property owned by the plaintiff.
and not real property? There may be confusion here with the remedy of replevin because
Maam: So by the tenor of par (c), the property contemplated here is replevin is also a recovery of possession over a personal property. There
that which is capable of being taken away, that which is capable of being may be seeming similarities between the two remedies.
removed, concealed and disposed of to prevent from being found. If it
(c) Replevin
is a real property can we do that? Can we take away a building and
prevent its being found? That is highly impossible. So necessarily the What is crucial under par c is the Plaintiff seeks to recover
property that is being contemplated here is a PERSONAL property that element of UNJUST or possession of personal property
can be spirited away, concealed, removed and prevent from being FRAUDULENT TAKING, belonging to him (LA TSN)
found. CONVERSION, or
CONCEALMENT, REMOVAL of
In the case of Santos v Bernabe, what property was involved
the property to prevent its being
here? Sacks of palay
found or taken by the applicant
Santos v Bernabe or authorized person.

Jose Bernabe is the owner of the warehouse where plaintiff Urbano Can this apply to property belonging to the defendant?
Santos (778 cavans & 38 kilos) and Pablo Tingson ( 1,026 cavans & Yes. Because here, if your goal is to secure the judgment that you may
9 kilos) deposited their cavans of palay. Pablo Tingson sued Bernabe obtain in an action, and the defendant has started removing his personal
to recover his palay since at that time, the remaining palay in the properties in order to defeat whatever judgment you may obtain, that
warehouse is only 924 cavans. will fall also under this paragraph.

R: It will be seen that the action brought by Pablo Tiongson against Maam: In the case of Santos v Bernabe, what is being recovered here
Jose C. Bernabe is that provided in section 262 of the Code of Civil is the palay that the plaintiff has deposited which was comingled with
Procedure for the delivery of personal property. Although it is true the palay of another depositor. The SC justified the issuance of the writ
that the plaintiff and his attorney did not follow strictly the procedure of attachment. How? The SC said, liberally construing the provisions, the
provided in said section for claiming the delivery of said personal writ of attachment applied for by Pablo Tiongson against the property
property nevertheless, the procedure followed by him may be of Jose C. Bernabe may be a claim for the delivery of the sacks of palay
construed as equivalent thereto, considering the provisions of section deposited by the former with the latter. So the deposit made justified
2 of the Code of Civil Procedure of the effect that "the provisions of the issuance of the writ. In a way, this could also fall under par (b)
this Code, and the proceedings under it, shall be liberally construed, where there is a depositary-depositor relationship or a contract of
in order to promote its object and assist the parties in obtaining commodatum. So the deposit that was made, justified the issuance of
speedy justice." the writ.

Liberally construing, therefore, the above cited provisions of


section 262 of the Code of Civil Procedure, the writ of attachment (d) In an action against a party who has been guilty of a fraud in
applied for by Pablo Tiongson against the property of Jose C. contracting the debt or incurring the obligation upon which the action
Bernabe may be construed as a claim for the delivery of the sacks is brought, or in the performance thereof;
of palay deposited by the former with the latter.
Maam: Again, you hear the word FRAUD.
Is attachment proper here? (from LA TSN)
And the fraud here is present when?
Yes. The 778 cavans and 38 kilos of palay belonging to the plaintiff
The fraud is present in contracting the debt or fraud in incurring the
Urbano Santos, having been mixed with the 1,026 cavans and 9 kilos of
obligation. Even if there is no fraud in contracting the debt but there is
palay belonging to the defendant Pablo Tiongson in Jose C. Bernabe's
fraud in the performance of the obligation, there is a ground for
warehouse; the sheriff having found only 924 cavans and 31 1/2 kilos
attachment. (from LA TSN)
of palay in said warehouse at the time of the attachment thereof; and
there being no means of separating form said 924 cavans and 31 1/2 of Maam: So at the inception of the contract, the other party has no intent
palay belonging to Urbano Santos and those belonging to Pablo of fulfilling his obligation, that is fraud in contracting the debt. You have
Tiongson. no intent whatsoever to comply, but still you entered into a contract. So
there is fraud.
What was the justification for the issuance of the writ? Does it
fall under par (c)? Prior to the amendment of the civil procedure, this is the only ground
under this paragraph, when the fraud is in the contracting stage. Now
Maam: Under par (c), there is fraud involved and that is when the
there is an additional instance under this paragraph, fraud in the
property is taken away, removed or disposed of or converted, that is
performance of the obligation. Before when there is fraud in the
where the fraud came in. The main action here is to recover the
performance of the obligation that is not enough for attachment, but
property. What kind of action is that? Is that Recovery of ownership or
now it is allowed.
recovery of possession? Recovery of possession. Meaning to say,
ownership is not involved. Meaning to say, since ownership is not What do you mean by fraud in the performance of the
involved, the plaintiff is still the owner of the subject property. So the obligation?
property to be attached here is one that is owned by the plaintiff,
contrary to the general rule that the property to be attached should be It refers to the fraud after the contract or agreement have been entered.
that of the adverse party. Here, what is to be attached is the property (from 2015 TSN)
of the plaintiff that was fraudulently taken away, removed, converted, Cite a case where there is fraud in the performance of the
concealed or whose possession was taken away. So you file a complaint obligation

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Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

The fact that they agreed with petitioners to transact via


METRO, INC. AND SPOUSES FREDERICK JUAN AND LIZA respondents and petitioner in violation of that agreement,
JUAN VS. LARA'S GIFTS AND DECORS, INC., LUIS directly transacted with the clients without the intervention of
VILLAFUERTE, JR. AND LARA MARIA R. VILLAFUERTE, respondent, Is there fraud or mere breach of contract?
Petitioners and respondents agreed that respondents would endorse Yes there is fraud and not a mere breach of contract. Because the court
to petitioners purchase orders received by respondents from their considered the fact when petitioners directly transacted with the foreign
buyers in the United States of America in exchange for a 15% buyers as a sufficient allegation of fraud to support the application for
commission, to be shared equally by respondents and James R. the issuance of the writ.
Paddon (JRP), LGD's agent. respondents filed a complaint against
petitioners for sum of money and damages with a prayer for the Was the fraud in the contracting of the debt or in the
issuance of a writ of preliminary attachment. Subsequently, performance of the obligation? Fraud in the performance of the
respondents filed an amended complaint and alleged that, as of July obligation
2002, petitioners defrauded them in the amount of $521,841.62.
In the case of Wee v Tankiansee, what kind of fraud or was
In their amended complaint, respondents alleged the following in there a ground for the issuance of a writ of attachment? No
support of their prayer for a writ of preliminary attachment:
Frederick Juan approached respondent spouses and asked them to Wee v Tankiansee
help petitioner's export business. He proposed the following: Petitioner Alejandro Ng Wee made several money placements
a. That respondents transfer and endorse to petitioner Metro some totaling P210,595,991.62 with the bank's affiliate, Westmont
of the Purchase Orders (PO's) they will receive from their US buyers; Investment Corporation (Wincorp). Petitioner received disturbing
b. That petitioners will sell exclusively and "only thru" respondents news on Wincorp's financial condition. He then discovered that the
for their US buyer; company extended a loan equal to his total money placement to a
However, soon thereafter, just when the orders increased and the corporation.
amount involved likewise increased, petitioners suddenly, without Finding that Virata purportedly used Power Merge as a conduit and
any justifiable reasons and in pure bad faith and fraud, abandoned connived with Wincorp's officers and directors to fraudulently obtain
their contractual obligations to remit to respondents their shares. And for his benefit without any intention of paying the said placements,
worse, petitioenrs transacted directly with respondents' foreign buyer petitioner instituted an action for damages and one of the defendants
to the latter's exclusion and damage. Clearly, petitioners planned is respondent Tankiansee, Vice-Chairman and Director of Wincorp. A
everything from the beginning, employed ploy and machinations to writ of attachment was later issued by the court
defraud respondents, and consequently take from them a valuable
client. R: The issuance is not proper
Petitioners are likewise guilty of fraud by violating the trust and In the case at bench, the basis of petitioner's application for the
confidence reposed upon them by respondents. Petitioners received issuance of the writ of preliminary attachment against the properties
the proceeds of respondents' LCs with the clear obligation of of respondent is Section 1(d) of Rule 57 of the Rules of Court
remitting 15% thereof to the respondents. Their refusal and failure
For a writ of attachment to issue under this rule, the applicant must
to remit the said amount despite demand constitutes a breach of
sufficiently show the factual circumstances of the alleged fraud
trust amounting to malice and fraud.
because fraudulent intent cannot be inferred from the debtor's mere
R: In this case, the basis of respondents' application for the issuance non-payment of the debt or failure to comply with his obligation. The
of a writ of preliminary attachment is Section 1(d), Rule 57 of the applicant must then be able to demonstrate that the debtor has
Rules of Court intended to defraud the creditor.

In Liberty Insurance Corporation v. Court of Appeals, we explained: To sustain an attachment on this ground, it must be shown that the
debtor in contracting the debt or incurring the obligation intended to
To sustain an attachment on this ground, it must be shown that the defraud the creditor. The fraud must relate to the execution of the
debtor in contracting the debt or incurring the obligation intended to agreement and must have been the reason which induced the other
defraud the creditor. The fraud must relate to the execution of the party into giving consent which he would not have otherwise given.
agreement and must have been the reason which induced the other To constitute a ground for attachment in Section 1 (d), Rule 57 of
party into giving consent which he would not have otherwise given. the Rules of Court, fraud should be committed upon contracting the
To constitute a ground for attachment in Section 1(d), Rule 57 of the obligation sued upon. A debt is fraudulently contracted if at the time
Rules of Court, fraud should be committed upon contracting the of contracting it the debtor has a preconceived plan or intention not
obligation sued upon. A debt is fraudulently contracted if at the time to pay, as it is in this case
of contracting it the debtor has a preconceived plan or intention not
to pay, as it is in this case. In the instant case, petitioner's October 12, 2000 Affidavit is bereft
of any factual statement that respondent committed a fraud. The
The applicant for a writ of preliminary attachment must sufficiently affidavit narrated only the alleged fraudulent transaction between
show the factual circumstances of the alleged fraud because Wincorp and Virata and/or Power Merge, which, by the way, explains
fraudulent intent cannot be inferred from the debtor's mere non- why this Court, in G.R. No. 162928, affirmed the writ of attachment
payment of the debt or failure to comply with his obligation. issued against the latter. As to the participation of respondent in the
We rule that respondents' allegation that petitioners undertook to sell said transaction, the affidavit merely states that respondent, an
exclusively and only through JRP/LGD for Target Stores Corporation officer and director of Wincorp, connived with the other defendants
but that petitioners transacted directly with respondents' foreign in the civil case to defraud petitioner of his money placements. No
buyer is sufficient allegation of fraud to support their application for other factual averment or circumstance details how respondent
a writ of preliminary attachment. committed a fraud or how he connived with the other defendants to
commit a fraud in the transaction sued upon. In other words,
Is there a valid basis for the issuance of the writ under par (d)? petitioner has not shown any specific act or deed to support the
How was the fraud perpetrated here? allegation that respondent is guilty of fraud.

Yes. When petitioners undertook to sell exclusively and only through So for fraud to be a basis for the issuance of a writ of
JRP/LGD for Target Stores Corporation but that petitioners transacted attachment under par (d), how should the fraud be alleged?
directly with respondents' foreign buyer is sufficient allegation of fraud
to support their application for a writ of preliminary attachment. In the affidavit, the applicant must sufficiently show the factual

6
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

circumstances of the alleged fraud because fraudulent intent cannot be


inferred from the debtor's mere non-payment of the debt or failure to Aboitiz v Cotabato Bus Company
comply with his obligation. The applicant must then be able to The ground for the issuance of the writ is:
demonstrate that the debtor has intended to defraud the creditor.
The defendant "has removed or disposed of its properties or assets,
In the case of State Investment v CA, was there a ground for or is about to do so, with intent to defraud its creditors.
attachment under par (d)? No
Petitioner alleges that defendant is on the verge of insolvency and
State Investment v CA may no longer satisfy its just debts without issuing the writ. This may
P.O. Valdez obtained a loan from Petitioner State Investment. Such be inferred from the emphasis laid by petitioner on the fact that even
loan was secured by stock certificates, a real estate mortgage, 2 for the measly amount of P 634.00 payment thereof was made with
post-dated checks thru a deed of sale and various receivables from a personal check of the respondent company's president and majority
P.O. Valdez. stockholder, and its debts to several creditors, including secured ones
like the DBP, have remained unpaid, despite its supposed daily
When Pedro Valdez’ two checks were deposited by the petitioner income of an average of P 12,000.00, as declared by its assistant
upon maturity, they bounced for insufficient funds. .P.O. Valdez manager, Baldovino Lagbao.
failed to pay its obligations and so the Real estate mortgage was
foreclosed but the debt remained unsatisfied so petitioner filed an Respondent allegedly “removed” the busses and such removal is with
action for collection with issuance of a writ of preliminary attachment. intent to defraud creditors
Properties of PO Valdez were attached. R: It is an undisputed fact that, as averred by petitioner itself, the
State Investment contended that there was fraud in obtaining the several buses attached are nearly junks. However, upon permission
collaterals particularly the receivables by the sheriff, five of them were repaired, but they were substituted
with five buses which were also in the same condition as the five
R: The main thrust of the prayer for preliminary attachment is the repaired ones before the repair.
alleged misrepresentation of the debtor P.O. Valdez, Inc., in the
Agreement for Discounting Receivables and in the deeds of sale of This cannot be the removal intended as ground for the issuance of a
said receivables. But false though they were, the petitioners cannot writ of attachment under section 1 (e), Rule 57, of the Rules of Court.
claim to have been deceived or deluded by them because it knew, or The repair of the five buses was evidently motivated by a desire to
should have known , that the issuer of the checks, Pedro O. Valdez, serve the interest of the riding public, clearly not to defraud its
was not a "buyer" of the "merchandise and personalities made in the creditors, as there is no showing that they were not put on the run
ordinary course of business" by P.O. Valdez, Inc. of which he was the after their repairs, as was the obvious purpose of their substitution
president. to be placed in running condition.

Since the petitioner failed to prove during the hearing of private Moreover, as the buses were mortgaged to the DBP, their removal
respondents' motion to lift the preliminary writ of attachment, that or disposal as alleged by petitioner to provide the basis for its prayer
P.O. Valdez, Inc. received from it independent consideration for the for the issuance of a writ of attachment should be very remote, if not
"sale" of Pedro Valdez' checks to it, apart from the loans previously nil. If removal of the buses had in fact been committed, the DBP
extended to the corporations, We are constrained to affirm the should not have failed to take proper court action, both civil and
finding of the court of Appeals that Valdez's checks are "mere criminal, which apparently has not been done.
evidence of the outstanding obligation of P.O. Valdez, Inc. to the The sale or other form of disposition of any of this kind of property
petitioner." is not difficult of detection or discovery, and strangely, petitioner, has
The petitioner was not defrauded by their issuance for the loans had adduced no proof of any sale or transfer of any of them, which should
been contracted and released to P.O. Valdez, Inc. long before the have been easily obtainable.
checks were issued.

What was the allegation of fraud in this case? Was there fraud? No maam
PO Valdez allegedly employed fraud with respect to the collaterals by What properties are the subject matter of this case? The buses
misrepresenting the values therein because at the time the land was
foreclosed it was lesser in value, when the checks were deposited it Were the buses taken away? Yes. However, upon permission by the
bounced, and the value of the stocks has declined. sheriff, five of them were repaired, but they were substituted with five
buses which were also in the same condition as the five repaired ones
before the repair.
Under par (e) what kind of action is contemplated here for the Was that removal a sufficient ground for attachment?
issuance of a writ of attachment?
No. The repair of the five buses was evidently motivated by a desire to
(e) In an action against a party who has removed or disposed of his serve the interest of the riding public, clearly not to defraud its creditors,
property, or is about to do so, with intent to defraud his creditors; or as there is no showing that they were not put on the run after their
repairs, as was the obvious purpose of their substitution to be placed in
Maam: Again fraud is present and the mere intent to defraud will suffice
running condition.
for the issuance of the writ. This is the paragraph where the property
that is being removed or disposed of belongs to the defendant as Maam: So if the purpose of the removal is to repair, then that is not
opposed to the property that is being disposed under par (c) which commensurate to an intent to defraud. There can be no intent to defraud
necessarily belongs to the plaintiff but whose possession is being taken because to repair is to preserve.
away that why the action there is to recover possession of the property.
In People’s Bank v Syvels Inc, was there sufficient ground for
So here the defendant is removing or disposing of his property or is the issuance of a writ of attachment under par (e)? Yes
about to do so with intent to defraud his creditor. So the removal or
disposition of the property here is for the purpose of defrauding his People’s Bank v Syvels, Inc
creditors.
On petition based on the affidavits executed by Mr. Leopoldo R.
In the case of Aboitiz v Cotabato Bus Company, is there a Rivera, Assistant Vice President of the plaintiff bank and Atty.
ground for the issuance of the writ? Eduardo J. Berenguer on January 12, 1967, to the effect, among

7
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

others, that the Syvels are disposing of their properties with intent to preliminary attachment upon the ground that the claim resulted from
defraud their creditors, particularly People’s Bank They testified that the non-payment of the purchase price of fuel oil used for the ten
Syvel's Inc. had disposed of all the articles covered by the chattel vessels of the private respondents-defendants and that pursuant to
mortgage but had not remitted the proceeds to People’s bank; that the provisions of the Code of Commerce, Article 584 in relation to
the Syvel's Stores at the Escolta, Rizal Avenue and Morayta Street Article 580 (subpar. 8), the said vessels may be attached. There was
were no longer operated by Syvel’s and that the latter were disposing the added averment that the private respondents were about to
of their properties to defraud appellee bank. A preliminary writ of dispose of the said vessels in fraud of their creditors including the
attachment was issued based on this facts petitioner herein (note: The only averment. No other facts were
alleged) The writ was issued.
R: Evidence adduced during the trial strongly shows that the
witnesses have personal knowledge of the facts stated in their Later, despite opposition from the petitioner, the respondent Judge
affidavits in support of the application for the writ. Such testimonies issued the first of the disputed orders dated August 28, 1986, which
and circumstances were given full credit by the trial court in its dissolved the writ of attachment and allowed the private respondents’
decision withdrawal of their counter-bond.
The attachment sought on the ground of actual removal of property R: The respondent judge acted in accordance with the existing laws
is justified where there is physical removal thereof by the debtor, as and prevailing jurisprudence. The rules on the issuance of a writ of
shown by the records. attachment must be construed strictly against the applicants. This
stringency is required because the remedy of attachment is harsh,
The actuations of appellants were clearly seen by the witnesses who extraordinary, and summary in nature. If all the requisites for the
"saw a Fiat Bantam Car-Fiat Car, a small car and about three or four granting of the writ are not present, then the court which issues it
persons hurrying; they were carrying goods coming from the back acts in excess of its jurisdiction.
portion of this store of Syvels at the Escolta, between 5:30 and 6:00
o'clock in the evening." Therefore, "the act of debtor (appellant) in The petitioner’s prayer for a preliminary attachment hinges’ on the
taking his stock of goods from the rear of his store at night, is allegations in paragraph 16 of the complaint 17 and paragraph 4 of
sufficient to support an attachment upon the ground of the the affidavit 18 of Daniel Pe which are couched in general terms
fraudulent concealment of property for the purpose of delaying and devoid of particulars of time, persons, and places to support such a
defrauding creditors." serious assertion that "defendants are disposing of their properties
in fraud of the creditors." There is thus the necessity of giving to the
In any case, intent to defraud may be and usually is inferred from private respondents an opportunity to ventilate their side in a
the facts and circumstances of the case; it can rarely be proved by hearing, in accordance with due process, in order to determine the
direct evidence. It may be gleaned also from the statements and truthfulness of the allegations. But no hearing was afforded to the
conduct of the debtor, and in this connection, the principle may be private respondents the writ having been issued ex parte. A writ of
applied that every person is presumed to intend the natural attachment can only be granted on concrete and specific grounds
consequences of his acts and not on general averments merely quoting the words of the rules.

Maam: Under par (e), as we said there is fraud involved. As in all the
So how do you determine intent to defraud? Intent is a state of other cases under par (a), (b), (c), (d), and (e), there are fraud involved
mind. How do you show to the court intent to defraud? in varying cases and stages. Now how do you show fraud? where does
it come in?
Maam: So if your ground is under par (e) against a defendant who has
been removing or disposing of his property with intent to defraud his So the fraud under par (e) consist of what? Removal or disposal
creditors, then you must be very detailed in the factual allegations of of property or about to do so with intent to defraud creditors
what this intent to defraud consists of. You cannot just make general And must appear in what stage? Before or after the defendant had
averments because intent is a state of mind and can only be determined disposed or removed his properties.
thru the facts and circumstances. So the more details as to how there is
intent to defraud, the better, so that the court can be guided and can What kind of action is contemplated here?
appropriately establish the intent to defraud. Maam: There is no specific action here unlike in the first 3 grounds,
very specific. Here, the defendant that is being described as grounds for
Why is it that fraud must be particularly stated as basis for the application of attachment. It’s based on the ACTS of the defendant.
application for attachment? It’s more of the circumstances surrounding or the acts committed by the
In the case of Adlawan v Torres, Attachment is a harsh, extraordinary defendant that is the basis of the issuance of attachment starting from
and summary remedy and the rules governing its issuance must be par (d) up to par (f).
construed strictly against the applicant. Verily, a writ of attachment can So you have six grounds the first three is based in the nature of the
only be granted on concrete and specific grounds and not on general action and the last three is more of the description of the defendant.
averments quoting perfunctorily the words of the Rules
So par (b) you have there a defendant who is guilty of fraud in
How do you establish fraud? contracting the debt or in the performance of the obligation and in par
The factual basis on defendant's intent to defraud must be clearly (e), it is a defendant who has removed or disposed of his property with
alleged in the affidavit in support of the prayer for the writ of attachment intent to defraud his creditors. Its more of descriptive of the defendant
if not so specifically alleged in the verified complaint. and in par (f) you have a defendant that is not found in the Philippines
and can only be served summons by publication. So you see the
So when do you say that there is a sufficient allegation of fraud? distinction of the grounds.
In the case of Aboitiz v Cotabato Bus, there is a sufficient allegation Now under par (e), who should be the plaintiff? The creditor who
when the factual circumstances and events that tends to establish the is allegedly defrauded.
existence of intent to defraud is averred or stated in the affidavit.
Maam: So the same as par (a) where the defendant is about to depart
In the case of DP Lub Oil v Nicolas, what was alleged to from the country with intent to defraud his creditors and the actions
establish fraud? described there is an action for sum of money, so collection, but the
defendant is ABOUT TO DEPART with intent to defraud his creditors.
DP Lub Oil v Nicolas
Same here, the defendant disposes of his property with intent to defraud
The said complaint contained a prayer for the issuance of a writ of his creditors. So basically the plaintiff in both cases should be the

8
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

creditor. Because he stands to suffer of the fraudulent disposal of the as to how such intent can be manifested.
property, or in the case of par (a), he stands to suffer of the FRADULENT
DEPARTURE of the defendant from the Philippines.
In the case of Adlawan v Torres, is there a grounds for the July 17, 2018 (1 hr class) MCPR
issuance of a writ of attachment under par (e)? Is there intent Now, under Section 1(f), what kind of ground is contemplated
to defraud in that case? There is none. here?
Adlawan v Torres (f). In an action against a party who does not reside and is not found
Petitioner Eleazar Adlawan was awarded a contract for the in the Philippines, or on whom summons may be served by
construction of the Tago Diversion Works for the Tago River publication.
Irrigation Project by the National Irrigation Administration and that Maam: Section 1(f) is more on description of the defendant rather than
respondent Aboitiz loaned him money and equipment, which the kind of main action. It must be a nonresident defendant not found
indebtedness as of June 30, 1983 totaled P13,430,259.14. in the Philippines regardless of the kind of action.
in view of the enormous liabilities which the petitioner have with the When you say that the party does not reside or cannot be found in the
respondent, Adlawan executed a real estate mortgage covering Philippines, It refers to persons on whom summons may be served by
eleven (11) parcels of land in favor of Philippine Commercial and publication.
Industrial Bank (PCIB) to secure a P1,000,000.00 loan with said bank
which according to Aboitiz, Adlawan was able to remove, conceal and *Lacking the 1st question*
dispose of their properties, obviously to defraud the plaintiff
A: The non-resident must not be found in the Philippines.
It is evident from said affidavit that the prayer for attachment rests
If you allege that, is that sufficient? Yes maam, I believe so.
on the mortgage by petitioners of 11 parcels of land in Cebu, which
encumbrance respondent Aboitiz considered as fraudulent Are foreign corporations covered by these?
concealment of property to its prejudice.
The SC said in the Claude Neon Light case, foreign corporations are not
R: There is no factual allegation which may constitute as a valid basis covered by this provision Section 1(f) of Rule 57
for the contention that the mortgage was in fraud of respondent
Aboitiz. CLAUDE NEON LIGHTS, FEDERAL INC., U. S. A., vs
PHILIPPINE ADVERTISING CORPORATION and FRANCISCO
Bare allegation that an encumbrance of a property is in fraud of the SANTAMARIA, Judge of First Instance of Manila
creditor does not suffice. Factual bases for such conclusion must be
clearly averred. Facts: PAC filed a suit against petitioner claiming P300,000 as
damages for alleged breach of the agency with an application for writ
The execution of a mortgage in favor of another creditor is not of attachment in which it is stated that the petitioner is a foreign
conceived by the Rules as one of the means of fraudulently disposing corporation having its principal place of business in the City of
of one's property. By mortgaging a piece of property, a debtor merely Washington, District of Columbia. However, it is not alleged in said
subjects it to a lien but ownership thereof is not parted with. application that the petitioner was about to depart from the Philippine
Furthermore, the inability to pay one's creditors is not necessarily Islands with intent to defraud its creditors or that it was insolvent or
synonymous with fraudulent intent not to honor an obligation had removed or disposed of its property or was about to do so with
intent to defraud its creditors.
What did the defendant (petitioner) did in this case?
The respondent judge issued the writ of attachment and the sheriff
Adlawan executed a real estate mortgage covering eleven (11) parcels has attached all the properties of the petitioner in the Philippine
of land in favor of PCIB to secure a P1,000,000.00 loan with said bank Islands appointing Manuel C. Grey receiver of said properties.
making PCIB a preferred creditor to the prejudice of Aboitiz.
In its petition for the annulment of the writ of attachment issued and
So is the mortgaging of the property a manifestation of intent appointment of receiver, the attorney in fact of the petitioner denied
to defraud? the allegations of indebtedness and breached of contracts but the
court denied said motions to vacate the attachment and receivership
No. The execution of a mortgage in favor of another creditor is not invoking under section 424, paragraph 2 in considering the petitioner
conceived by the Rules as one of the means of fraudulently disposing of as a defendant not residing in the Philippines.
one's property. By mortgaging a piece of property, a debtor merely
subjects it to a lien but ownership thereof is not parted with.
Maam: So mortgaging of property is not an act of removal or disposal Issue: WON petitioner, a foreign corporation, shall, in a
that is contemplated under sec 1 (e) that will manifest an intent to metaphorical sense, be deemed as "not residing in the Philippine
defraud the creditor. The reason of the SC is that the mortgage was Islands" in the sense in which that expression would apply to a
merely an accessory contract that did not involve transfer of ownership. natural person?

So the disposition that is contemplated under par (e) to be considered Held: Having regard to the reason for the statute which is the
in fraud of creditors must be one which disposes of the OWNERSHIP of protection of the creditors of a non-resident, we are of the opinion
the property and not by way of mortgage or security of an obligation. that there is not the same reason for subjecting a duly licensed
So take note, the disposal or removal, must be, in order for it to be foreign corporation to the attachment of its property by a plaintiff
considered with intent to defraud creditors, must be one which involves under section 424, paragraph 2, as may exist in the case of a natural
transfer of ownership. person not residing in the Philippine Islands.

You also have the requirement that whenever you allege fraud, you have Corporations, as a rule, are less mobile than individuals. This is a
to allege specific facts. When you say specific or particular fact or specially true of foreign corporations that are carrying on business
circumstances, you must DETAIL how the fraud was committed, who by proper authority in these Islands. They possess, as a rule, great
committed, when was it committed. The four wives and one husband capital which is seeking lucrative and more or less permanent
must be there in so far as fraud is alleged. You must be very clear, investment in young and developing countries like our Philippines.
especially when you are trying to establish intent to defraud because Some of them came here as far back as the Spanish regime and are
intent is a state of mind. You have to furnish the facts and circumstances still important factors in our financial and industrial life. They are

9
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

anything but "fly-by-night" concerns. The latter, we believe, are Philippines?


effectually excluded from our Islands both by our laws and by our
If a foreign corporation is not doing business in the Philippines, then as
geographical and economic situation.
a general rule, the court would not be able to acquire jurisdiction over
Paragraph 2 of section 424, does not apply to a domestic corporation. the foreign corporation.
Our laws and jurisprudence indicate a purpose to assimilate foreign
So, can you apply Section 1(F)?
corporations, duly licensed to do business here, to the status of
domestic corporations. We think it would be entirely out of line with No maam. Because it only applies to natural persons.
this policy should we make a discrimination against a foreign
corporation, like the petitioner, and subject its property to the harsh But you cannot serve summons on a foreign corporation that
writ of seizure by attachment when it has complied not only with does not do business in the Philippines.
every requirement of law made especially of foreign corporations,
Maam: Take note that Section 1 (f) is really for purposes of serving
but in addition with every requirement of law made of domestic
summons by publication. That is one of the purposes of the attachment
corporations.
other than to secure the debt or the judgment in the case.
Why not? Claude Neon Light tells you natural persons. State Investment House
Because, a corporation which licitly do business here or is licensed to do tells you that foreign corporations are not included in Section 1(f)
business would in fact make it or can be likened to that of a resident to because they are not capable of being arrested. They are juridical
the Philippines. Thus, it would be unfair for the SC to apply the same persons. That is the ruling in Claude Neon Lights.
ground upon foreign corporations such as Claude Neon Lights. What is the ruling in State Investment House?
Foreign corporations are juridical persons. Only natural persons are
State Investment House v Citibank
referred into as non-resident defendants. Hence, it will not apply to
corporations. That simple. (TSN 2015) The foreign banks involved in the controversy are Bank of America
NT and SA, Citibank N.A. and Hongkong and Shanghai Banking
Claude Neo Lights is a foreign corporation here. If a corporation
Corporation. On December 11, 1981, they jointly filed with the Court
is considered a foreign corporation, that is not included in the
of First Instance of Rizal a petition for involuntary insolvency of
ground under Section 1 paragraph f?
Consolidated Mines, Inc. (CMI).
Yes maam, the SC in the same case said that such ground only applies
The petition was opposed by State Investment House, Inc. (SIHI)
to natural persons.
and State Financing Center, Inc. (SFCI). It claimed that: the Court
Obviously, the assimilation of foreign corporations authorized to do had no jurisdiction to take cognizance of the petition for insolvency
business in the Philippines "to the status of domestic corporations," because petitioners are non- resident creditors of CMI in
subsumes their being found and operating as corporations, hence, contemplation of the Insolvency Law
residing, in the country. (TSN 2015)
R: A foreign corporation licitly doing business in the Philippines,
Why? which is a defendant in a civil suit, may not be considered a non-
resident within the scope of the legal provision authorizing
Because to apply to foreign corporation, it would be discriminatory and attachment against a defendant not residing in the Philippine
unjust. Thus, the said ground refers to a physical defendant who Islands;" in other words, a preliminary attachment may not be
physically is not residing in the Philippines and if the applied to a foreign applied for and granted solely on the asserted fact that the defendant
corporation which is duly licensed to do business here in the Philippines, is a foreign corporation authorized to do business in the Philippines
the fact doing business makes it indistinguishable from that of a — and is consequently and necessarily, "a party who resides out of
domestic corporation. the Philippines.
Parenthetically, if it may not be considered as a party not residing in
the Philippines, or as a party who resides out of the country, then,
Meaning?
logically, it must be considered a party who does reside in the
It is indistinguishable since it is licensed to do business meaning it is Philippines, who is a resident of the country.
active in participating in the economy in the Philippines
Obviously, the assimilation of foreign corporations
So what has got to do with it? authorized to do business in the Philippines "to the status of
domestic corporations," subsumes their being found and
Our laws and jurisprudence indicate a purpose to assimilate a foreign operating as corporations, hence, residing, in the country
corporation duly licensed here. That is why it would be unjust to
distinguish it or consider it as different from the others. The SC said that in State Investment House, that a foreign corporation
licitly doing business in the Philippines may not be considered a non-
Maam: So a non-resident referred to under Section 1 (f) pertains to resident within the legal provision authorizing attachment against a
that a natural person, a person who is capable of being a resident, defendant not residing in the Philippines. It cannot be granted just
physically detained that is the kind of defendant referred to. because the defendant is a foreign corporation authorized to do business
As far as corporations are concerned, are corporations capable in the Philippines.
of being arrested?No maam, because they are juridical persons.
Will it matter whether the corporation is foreign or domestic? Why is this not considered as a non-resident defendant, a
No maam because again, our laws and jurisprudence indicate a purpose foreign corporation doing business in the Philippines?
to assimilate foreign corporations, duly licensed to do business here to Since it is licitly doing business here it can be considered actually as a
the status of domestic corporations. resident of the Philippines, of the country.
Even if doing business in the Philippines, the rule as to non- resident Parenthetically, if it may not be considered as a party not residing in the
defendant does not apply. More so, if it is doing business in the Philippines, or as a party who resides out of the country, then, logically,
Philippines. (TSN 2015) it must be considered a party who does reside in the Philippines, who is
If the foreign corporation is not doing business in the a resident of the country. (TSN 2015)

10
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

Why? it is the first and] that it "has no authority nor jurisdiction to render
Since our laws and jurisprudence would want to assimilate or invite judgment against the herein defendant, Joseph M. Gallemore for
rather foreign corporation here and it would be out of line should the being a non-resident.
court make a discrimination against them and subject their property to
seizure and attachment. When it has complied with all the requirements Issue: WON the court acquired jurisdiction of the case. YES(Is the
set out by law to do business here in the country. action is in personam or one in rem.)

Why is it considered as a resident defendant? Because Section1 Held: The main action in an attachment or garnishment suit is in
(f) tells you a non-resident defendant, the defendant is not here rem until jurisdiction of the defendant is secured. Thereafter, it is in
or is not residing in the Philippines. What make it a resident personam and also in rem, unless jurisdiction of the res is lost as by
defendant? dissolution of the attachment. If jurisdiction of the defendant is
acquired but jurisdiction of the res is lost, it is then purely in
Since it is a foreign corporation doing business here in the Philippines, it personam. . . a proceeding against property without jurisdiction of
is registered in the SEC and therefore, it has existence here in the the person of the defendant is in substance a proceeding in rem; and
country by virtue of their registration in the SEC, and since they are where there is jurisdiction of the defendant, but the proceedings
registered in the SEC, they can easily be located since as one of the against the property continues, that proceedings is none the less
requirements in such a registration there should be a principal address necessarily in rem, although in form there is but a single proceeding.
of the corporation. The Court has acquired jurisdiction of the case at bar by
virtue of the attachment of the defendant's credit.
Maam: So a foreign corporation does business in the Philippines, they
usually appoint an agent in the Philippines who will conduct their As the remedy is administered in some states, the theory of an
business here. attachment, whether it is by process against or to subject the
property or effects of a resident or non-resident of the state, is that
And through that agent, you can serve the summons. In that sense
it partakes essentially of the nature and character of the proceeding
they are considered resident defendants. No need for you to attach
in personam and not of a proceeding in rem. And if the defendant
their properties so you can serve summons by publication. There is
appears the action proceeds in accordance with the practice
actually no ground because they are resident defendants in that sense.
governing proceedings in personam. But were the defendant fails to
Therefore, Section 1(f) does not apply to a foreign corporation doing appear in the action, the proceeding is to be considered as one in the
business here. Take note, doing business in the Philippines because nature of a proceeding in rem. And where the court acts directly on
they have an appointed agent duly registered in the SEC. the property, the title thereof being charged by the court without the
intervention of the party, the proceeding unquestionably is one in
Check the record with the SEC and you will know where to locate that rem in the fullest meaning of the term.
agent. And through that agent you can serve the summons.
In attachment proceedings against a non-resident defendant where
The question now would be, what if the foreign corporation is not doing personal service on him is lacking, it is elementary that the court
business in the Philippines? Can you avail of attachment? To serve must obtain jurisdiction of the property of the defendant. If no steps
summons on them by publication? Then, the remedy would be to have been taken to acquire jurisdiction of the defendant's person,
convert the case or the action into quasi-in rem action and them attach and he has not appeared and answered or otherwise submitted
if any of their properties in the country and then service of summons himself to the jurisdiction of the court, the court is without jurisdiction
would then be just for purposes of complying with the requirement of to render judgment until there has been a lawful seizure of property
due process. owned by him within the jurisdiction of the court.
(inaudible words) Regardless whether the corporation is foreign So maam here, Mabanag filed a case against Gallemore to recover
corporation doing business here or not, we go back to Claude Neon P735.18, to recover the sum of money that he paid for a sale which was
Lights (inaudible). And if the foreign corporation does not do business later on annulled. Thereafter, since Gallemore resided in LA.
here, how can they have properties here that you can attach? How will
it possible for them to have properties here? That makes it an even a This is an action for? Recovery of sum of money.
greater problem for you to locate, di mo na nga sila malocate ditto,
That is an? Action in personam.
maghahanap ka pa ng property ng tao na hindi naman nakatira dito.
So, the defendant is no longer found in the Philippines. Where
A corporation is not a defendant, a non-resident defendant that is
is he?
contemplated in Section 1(f). Regardless, whether that corporation is a
domestic or foreign corporation or whether it is a foreign corporation He is in LA. However, there was a credit that was owed to Gallemore
doing business in the Philippines or a foreign corporation not doing by a person who reside in Misamis Occidental. So, Mabanag here,
business in the Philippines. prayed for the attachment of such credit so that he may be able to
recover the sum of money. However, this attachment was dissolved
later on. Which brings us to the issue of whether the court erred in
Okay, in the case of Mabanag vs Gallemore, you have that in your dissolving such writ of preliminary attachment.
list. What happened here?

ROMAN MABANAG, plaintiff-appellant, vs. JOSEPH M.


So, was the dissolution proper?
GALLEMORE, defendant-appellee.
No maam, the dissolution is not proper. While as a general rule, a
Facts: Mabanag filed an action to recover P735.18, the amount paid
defendant not residing or not found here, the Philippine courts cannot
for the sale of 2 parcels of land which was annulled. Since the
try the case against that defendant because the impossibility of the
respondent resides in Los Angeles, California, USA, he has no
acquisition of the jurisdiction over his person. As an exception, if the
property in the Philippine except an alleged debt owing him by a
action affects the personal status of the plaintiff, who is residing in the
resident of the municipality of Occidental Misamis. This debt, upon
Philippines or is intending to sees to dispose any of the property, real or
petition of the plaintiff, after the filing of the complaint and before
personal, of the defendant, located in the Philippines, it may be validly
the suit was dismissed, was attached to the extent of plaintiff's claim
tried by the Philippine courts. Because in that case maam, there is
for the payment of which the action was brought. But the attachment
already jurisdiction over the res. So, in an ordinary attachment
was dissolved in the same order dismissing the case.
proceeding, if the defendant is not personally served like here in
The trial court denied the application for attachment and opined [that Gallemore was not personally served, the seizure of the credit or any
property of the defendant is necessary to confer jurisdiction upon the

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Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

court. So, in this case, jurisdiction was acquired by the court over such In action in personam against residents temporarily out of the
res. Philippines either substituted service of summons or the court here will
order to attach first the properties and then we could serve summons
by publication. And that complying with the service by publication is
Can the defendant be bound now by the judgment of the court just compliance with the due process requirement.
where he has not been served summons as he is a non-resident
defendant? Yes maam.
Okay, in the case of PCIB vs Alejandro, what happened here?
What is the justification for that?
PHILIPPINE COMMERCIAL INTERNATIONAL BANK,
A: Since the action in person has been converted into an action in rem,
Petitioner, vs. JOSEPH ANTHONY M.ALEJANDRO,
therefore makes the decision of the court binding upon the whole world.
Respondent
And since the property which was attached by the court is found in the
Philippines, thereby within the territory of the court. Therefore, that Facts: PCIB filed a complaint for sum of money with prayer of
makes it binding upon the defendant even if the service of summons issuance of writ of preliminary attachment against the respondent
was not made upon his person. alleging the latter’s debt under PN and a resident of Hongkong. On
the other hand, the respondent alleged the mishandling of his
account which led to certain lost.
Is a defendant temporarily out of the Philippines covered by
In praying for the issuance of a writ of preliminary attachment,
Section 1(f). Yes.
petitioner alleged that (1) respondent fraudulently withdrew his
unassigned deposits notwithstanding his verbal promise to PCIB Asst
VP Nepomuceno not to withdraw the same prior to their assignment
So, you will attach his property and to serve the summons by as security for the loan; and (2) that respondent is not a resident of
publication? No maam. Attachment is one of the modes but can also the Philippines. The application for the issuance of a writ was
resort to substituted service of summons. supported with the affidavit of Nepomuceno.
After the grant of the writ, the bank deposits of the respondent in
RCBC were garnished. Subsequently, respondent filed a motion to
So, if the defendant is temporarily out of the Philippines, what
quash the writ contending that (1) the withdrawal of his unassigned
is the rule?
deposits was not fraudulent as it was approved by petitioner (2)
If the defendant is temporarily out of the Philippines, first, you can resort Petitioner knew that he maintains a permanent residence in
to substituted service wherein as held in the case of PCIB vs Alejandro Quezon City, and an office address in Makati City at the Law Firm
wherein the service of summons may be effected by giving copy of the Romulo Mabanta Buenaventura Sayoc& De los Angeles, where he is
summons at the defendant’s residence with a person of suitable a partner. In both addresses, petitioner regularly communicated with
discretion residing therein. Or we can give copies with the defendant’s him through its representatives. Respondent added that he is the
office or in his regular place of business with some competent person managing partner of the Hong Kong branch of said Law Firm; that
in-charge thereof. Hence, the court acquired jurisdiction over the action his stay in Hong Kong is only temporary; and that he frequently
in personam by substituted service without the need of attaching the travels back to the Philippines. Consequently, the TC quashed the
property of the defendant. But in case the plaintiff wants to resort to writ.
the service by publication, the plaintiff will apply for the preliminary
Meanwhile, the respondent obtained favorable judgment on its
attachment of the defendant’s property, with the prior leave of court for
complaint for damages against the petitioner arising from the invalid
the sole purpose the attachment for the court to acquire jurisdiction.
garnishment of respondent’s deposits.
The court must first determine whether the allegations in the complaint,
substituted service will be enough or there is still a need to attach the Issue: WON a plaintiff suing an action in personam may be granted
property of the defendant and then resort to service of summons by the issuance of WPA on the premise that the defendant is temporarily
publication in order for the court to acquire jurisdiction over the person out of the Philippines. NO
and to comply with the requirements of the due process.
Held: Where the defendant is a resident who is temporarily out of
the Philippines, attachment of his/her property in an action in
personam, is not always necessary in order for the court to acquire
Why is it that a person, a defendant temporarily out of the
jurisdiction to hear the case.
Philippines need not necessarily be, or the property be subject
to an attachment for purposes of serving summons by In actions in personam, such as the instant case for collection of sum
publication? of money, summons must be served by personal or substituted
service, otherwise the court will not acquire jurisdiction over the
Because they are residents of the Philippines. They can easily be
defendant. In case the defendant does not reside and is not found in
located. So, summons can easily be served either in their permanent
the Philippines (and hence personal and substituted service cannot
address or their office address.
be effected), the remedy of the plaintiff in order for the court to
acquire jurisdiction to try the case is to convert the action into a
proceeding in rem or quasi in rem by attaching the property of the
What does that tell you now? the case of PCIB vs Alejandro defendant. Thus, in order to acquire jurisdiction in actions in
The case suggests that mere substituted service may be resorted to personam where defendant resides out of and is not found in the
instead of going directly of attaching the properties of the adverse party. Philippines, it becomes a matter of course for the court to convert
the action into a proceeding in rem or quasi in rem by attaching the
defendant’s property. The service of summons in this case (which
may be by publication coupled with the sending by registered mail of
Are you saying that the defendant temporarily out of the
the copy of the summons and the court order to the last known
Philippines may still be covered by Section 1(f)?
address of the defendant), is no longer for the purpose of acquiring
A: Yes maam. jurisdiction but for compliance with the requirements of due process.

When? In what instance?

12
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

In this case of PCIB filed against Alejandro a complaint for sum of How the writ of attachment issued?
money. Alejandro is a resident of Hong Kong. This case, PCIB wanted
to attach the properties of Alejandro.  Ex parte, or
 upon motion with notice and hearing.

Was there a valid issuance of the attachment writ here? Who may issue the writ?

No maam, there was no valid issuance. Because PCIB is contending that  The Court in which the case is pending.
Alejandro is a non-resident. But the court held that Alejandro is a  CA
resident of the Philippines who is just temporarily out of the Philippines.
Alejandro has a permanent resident as well as an office address where  SC
PCIB can just serve the summons.
What kind of courts are talking out here?
It could be the MTC, RTC, Family Court or the CA or the SC. The CA and
Okay, why was Alejandro not in the Philippines? What was the SC can issue writ attachment anywhere in the Philippines.
reason why he is out of the Philippines?
Because he is a managing partner of the HK branch of a law firm and
What may be attached?
that he is staying in HK for temporary purposes and he just travels back
to the Philippines. Real or personal property that can be found in the Philippines and those
not exempt from execution, as may be sufficient to satisfy the applicant‘s
demand.
If he as you said, PCIB made it appear that Alejandro was a
If you are a defendant and you received an information that an
non-resident, how did the court find out that he was in fact
attachment writ is issued against you, what can you do at that
merely temporarily out of the Philippines?
point in time where it was just issued? Is there anything that
Because as held by this court, in the hearings of the motion and you can do?
arguments of the counsels, the bank here through its contracting officer,
I will make deposit or give a bond as hereinafter provided in an amount
vice president first transacted with Alejandro made through defendant’s
equal to that fixed in the order, which may be the amount sufficient to
permanent residence in Metro Manila either in the home address in
satisfy the applicant's demand or the value of the property to be
Quezon City as well as the business address in Makati City.
attached as stated by the applicant
What was the main ground for the issuance the writ? that
So you have to attach all properties?
respondent is not a resident of the Philippines.
Only those sufficient to satisfy the applicant‘s demand.
Can court of Davao City issue a writ of attachment to be
No other ground alleged? respondent fraudulently withdrew his
enforced in Manila? What is the extent of the writ issued by the
unassigned deposits notwithstanding his verbal promise to PCIB Asst VP
court here?
Nepomuceno not to withdraw the same prior to their assignment as
security for the loan No maam. Only writs issued by the CA and SC are applicale in different
parts of the Philippines. Others are enforceable only within the judicial
region of the court which issued it (from LA TSN)
Isn’t it that a defendant temporarily out of the Philippines, is
also one of the defendants who may be served summons by
publication? Yes maam. Can the court issue several writs of attachment?
The last sentence of Section 2 provides that several writs may be issued
at the same time to the sheriffs of the courts of different judicial regions.
So, wouldn’t that fall under Section 1(f)? Which says that the
defendant not found in the Philippines or whom summons may
be served by publication?
When may the writ issue?
It came into the knowledge of the trial court that there is an address in
the Philippines, it can serve summons to this address instead of resorting Writs may be issued at the commencement of the action.
to service by publication.
-0- In the case of Sievert vs CA, when was the writ issued? Before
How is the writ of attachment issue? summons was served

Section 2. Issuance and contents of order. — An order of How do you apply for the writ?
attachment may be issued either ex parte or upon motion with notice  By filing a Petition ex parte where the case is pending.
and hearing by the court in which the action is pending, or by the
Court of Appeals or the Supreme Court, and must require the sheriff  Upon motion
of the court to attach so much of the property in the Philippines of
When do you make the Petition?
the party against whom it is issued, not exempt from execution, as
may be sufficient to satisfy the applicant's demand, unless such party Anytime before or after the commencement of the action.
makes deposit or gives a bond as hereinafter provided 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
When do you commence the action?
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 By filing of an action
different judicial regions.

13
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

Do you file a case and you file a Petition, is that it?


RICARDO CUARTERO,vs. COURT OF APPEALS, ROBERTO
No. Upon filing a case in court, you can apply for the writ of preliminary EVANGELISTA and FELICIA EVANGELISTA
attachment ex parte
Facts: On Aug 20, 1990, Cuartero filed a complaint before RTC-
Quezon City against Sps Evangelista, for a sum of money plus
damages with a prayer for the issuance of a WPA. On Aug 24, 1990,
How do you apply?
TC issued an order granting ex-parte the prayer for the issuance of
By applying for such writ at anytime after the commencement of the a writ of preliminary attachment. On Sept 19, 1990, the WPA was
action in court issued and on same day, the summons for the spouses Evangelista
was likewise prepared.
On Sept 20, 1990, copy of the WPA dated Aug 24, summons and
If the complaint has already been filed, do you still make an complaint were all simultaneously served upon the private
application for the writ to issue? Yes. respondents at their residence. Properties not exempt from execution
were attached and pulled out. Consequently, Sps Evangelista filed
motion to set aside and discharge WPA for having been irregularly
Until when can you ask for that writ? and improperly issued.
At anytime before the judgment of the court.
The TC denied the motion for lack of merit but the CA reversed such
ruling as the TC did not acquire jurisdiction over the person of the
spouses as neither service of summons with a copy of the complaint
If you apply for the writ at the commencement of the action, nor voluntary appearance of petitioners was had in this case before
how do you do that? the trial court issued the assailed order. Thus, being an ancillary
It can be by applying a Petition for the writ or upon such motion there remedy, the WPA is not proper.
will be a notice and hearing will be done for the application of the writ.

Other contentions of Sps Evangelista: no proper ground existed since


no intent to defraud the petitioner as the petitioner is aware that the
unfunded checks are merely evidence pre-existing obligation. Also,
What is the ruling here in the issuance of the writ? Should it there was violation of their constitutionally guaranteed right to due
issue before or after the service of summons? process when the writ was issued without notice and hearing. The
court has no power and authority to act in any manner against the
Generally, the SC made different pronouncements as to when the writ
defendant. Any order issuing from the Court will not bind the
of preliminary attachment may be served.
defendant.
Issue: WON WPA may be issued before the service of summons.
I am talking about the issuance
YES
It can be issued before the service of summons.
Held: A writ of preliminary attachment may be issued even before
summons is served upon the defendant. However, we have likewise
ruled that the writ cannot bind and affect the defendant until
Why? jurisdiction over his person is eventually obtained. Therefore, it is
According to the SC in the cases decided that there are 3 stages in required that when the proper officer commences implementation of
implementing the writ of preliminary attachment. the writ of attachment, service of summons should be simultaneously
made.
The grant of the provisional remedy of attachment practically involves
three stages: It must be emphasized that the grant of the provisional remedy of
attachment practically involves three stages: first, the court issues
a. The court issues the order granting the application; the order granting the application; second, the writ of attachment
issues pursuant to the order granting the writ; and third, the writ is
b. The writ of attachment issues pursuant to the order granting the implemented. For the initial two stages, it is not necessary that
writ; and jurisdiction over the person of the defendant should first be obtained.
c. The writ is implemented However, once the implementation commences, it is required that
the court must have acquired jurisdiction over the defendant for
without such jurisdiction, the court has no power and authority to
act in any manner against the defendant. Any order issuing from the
On the first 2 stages which comprise of the issuance of the writ, can be
Court will not bind the defendant.
served even before service of summons. However, upon reaching the
3rd stage, there should be simultaneous service of summons that should In Sievert v. CA, the writ was struck down because when the writ of
be served together with the writ. attachment was being implemented, no jurisdiction over the person of
the defendant had as yet been obtained. The court had failed to serve
Why?
the summons to the defendant. The circumstances are different from
According to the court, there should be service of summons that should those in the case at bar. When the writ of attachment was served on
be served upon the implementation of the writ in order for the defendant the spouses Evangelista, the summons and copy of the complaint were
to know how much property shall be attached towards the defendant also simultaneously served.
and on the part of the defendant, on what steps he can take to prevent
It is required that the court must have jurisdiction over the person of
the attachment over his property and the extent of the amount that will
the defendant, for without such jurisdiction, the court has no power and
be covered in case, if any a counter-bond be filed.
authority to act in any manner against the defendant. And any order
from the court does not bind the defendant. Aside from the part of the
defendant on what actions to be taken, it is also necessary in the
Is that the reason, to determine the amount for the counter- implementation of the writ that the court will acquire jurisdiction.
bond? In the case of Cuartero vs CA Otherwise, it will not bind the defendant.

14
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

When will the writ issue, or when can the court issue the writ? Yes maam.
And when can the court issue the writ in prior to this?
Can the writ issued by the court in that situation where the
The writ is issued ex-parte when no hearing is necessary for the issuance application is made in the complaint itself and there is no
of the writ. However, notice & hearing in issuing the writ is needed. hearing conducted (inaudible)?
When hearing is needed for the issuance of the writ of preliminary
attachment. Maam: if the ground is Section 1(f), it does not involve fraud. But if the
defendant is alleged to be a non-resident not found in the Philippines
When can the court issue the writ ex-parte? Meaning, there is (inaudible).
no hearing called. When will that be?
But the moment your ground is Section 1 (a-e) which involves fraud,
When the court will find that the application falls in any of the grounds there has to be a hearing. Even if the hearing is merely ex-parte before
mentioned in Section 1 par a-e, apparent from the affidavit filed. the court can issue the writ even before the service of summons. But
once service of summons is made, sometimes what the courts do is they
At what stage of the proceeding will it be allowed? receive the complaint, they see the application, what they do is, they
In the first stage when the court grants the order for the application. ask the sheriff to serve the summons right away with an order requiring
the defendant to comment on the application for the writ of attachment.
So, it now ceases to be ex-parte proceeding. The defendant will be
made to actively participate WON the writ should issue. That is what
Exactly. When is that? If you are the judge, and you are
usually happens.
presented with an application for the writ of preliminary
attachment, will issue it ex-parte or with notice & hearing? Instead of the court being limited to allegations in the complaint, what
the court will do is direct the service of summons right away coupled
It depends upon the ground that the writ is being applied. For instance,
with an order directing the defendant to file his answer as well as his
notice & hearing as ruled in the case decide by the SC is needed when
comment or opposition to the application for attachment. That is an
it falls under the ground where fraud is being alleged wherein the court
option. But under the Rules, the court is justified to just act on the
needs to hear the parties in to know WON fraud is prevalent in such a
application based on the allegations as well as the evidence presented
petition.
in a hearing that may be held in support of that application for a writ of
attachment.

So, hearing is required when there is fraud alleged? When the -0-
ground is fraud.
August 7, 2018. 1st hour MNA
It depends on the discretion of the court (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.
In Section 1, which among the grounds there involve fraud?
Section 1 (a-e). Section 1(f) is more on description of the defendant rather than the
kind of main action. It must be a nonresident defendant not found in
How about (f)? No maam. the Philippines regardless of the kind of action.
Maam: So, if the ground involved is fraud and in your Section 1, out of
When you say that the party does not reside or cannot be found
the six grounds, five of them involve fraud. Which among those grounds
in the Philippines?
would justify the court to the writ ex-parte? Five out of six involve fraud.
It refers to persons on whom summons may be served by publication.
Therefore, generally, you must have must a notice of hearing before you
the writ. Among the five grounds, the court made an exception in one
What do you mean by ―persons on whom summons may be
of the cases decided where the notice & hearing is necessary. According
served by publication?
to the SC, it is upon the discretion of the court to conduct hearing on its
These are persons, while summons may be served by publication, are
par in order to determine whether fraud is apparent in the application
not in the Philippines for which summons by publication cannot be
of the writ. However, generally, notice & hearing is not necessary on
effected when the action is in personam. Hence, there is need to
those grounds. The writ can be issued ex-parte.
convert the action to in rem or quasi in rem in order for the court to
What do you understand by ex-parte? acquire jurisdiction.

Maam: there is hearing but the other party does not participate. So, So what is difference between a party who does not reside and
whether ex-parte or upon motion, if the ground involves fraud, there not found in the Philippines and that on whom summons may
has to be a hearing. Kahit pa ex-parte yan, ihear pa rin ng judge. There be served by publication?
is still hearing, wala lang yun kabila. Kaya nga ex-parte. You present Do they refer to the same person?
your evidence ex-parte. Walang opposing counsel actively opposing tha
application in that hearing. When does that usually happen? Papayag CF: Rule 14 of the Rules of court
lang ba ang defendant na iattach yun property by motion to attach and Section 14. Service upon defendant whose identity or whereabouts
hindi sya makikisawsaw sa hearing na yan? That happens prior to the are unknown. — In any action where the defendant is designated as an
service of the summons. Precisely, hindi pa alam ni defendant na unknown owner, or the like, or whenever his whereabouts are unknown
kinakasuhan na pala siya. Wala pa siyang summons. Plaintiff now is and cannot be ascertained by diligent inquiry, service may, by leave of
actively asking the court for the issuance of the writ incorporated in his court, be effected upon him by publication in a newspaper of general
complaint. Nakalagay na sa complaint niya, part na yan ng gcomplaint circulation and in such places and for such time as the court may order.
niya, one of the reliefs is for the issuance of the writ of attachment by
way of a provisional remedy. Section 15. Extraterritorial service. — When the defendant does not
reside and is not found in the Philippines, and the action affects the
Can the court act on it right away, before the service of the personal status of the plaintiff or relates to, or the subject of which is,
summons? Yes maam. property within the Philippines, in which the defendant has or claims a
Can the court issue the writ prior to the service of the lien or interest, actual or contingent, or in which the relief demanded
summons? Yes maam. consists, wholly or in part, in excluding the defendant from any interest
therein, or the property of the defendant has been attached within the
Can the court issue the summons without calling for a hearing? Philippines, service may, by leave of court, be effected out of the

15
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

Philippines by personal service as under section 6; or by publication in No. They are considered resident defendants because they are
a newspaper of general circulation in such places and for such time as registered in the SEC, and so they can easily be located.
the court may order, in which case a copy of the summons and order
of the court shall be sent by registered mail to the last known address When you are a non-resident defendant, obviously you are not
of the defendant, or in any other manner the court may deem sufficient. found in the Philippines. How do you serve summons?
Any order granting such leave shall specify a reasonable time, which Through publication
shall not be less than sixty (60) days after notice, within which the Only through publication?
defendant must answer. It may also be through Extraterritorial service.
Section 16. Residents temporarily out of the Philippines. — When any Where do you publish?
action is commenced against a defendant who ordinarily resides within In the residence of the defendant.
the Philippines, but who is temporarily out of it, service may, by leave
of court, be also effected out of the Philippines, as under the preceding Take note that in extraterritorial service, it is not only limited to personal
section. service and publication, but also in any other manner the court may
deem sufficient. Can an action proceed against him considering
They do not refer to the same person. that he is not found in the Philippines?
A person who does not reside and is not found in the Philippines refers Yes. The remedy in order for the court to acquire jurisdiction to try the
obviously to one who is a Non-Resident. He lives somewhere else. case is to convert the action into a proceeding in rem or quasi in rem
If you say a person on whom summons is served by publication, it is by attaching the property of the defendant. Thus, in order to acquire
not only against a person who is Non-Resident. Under Rule 14, pwede jurisdiction in actions in personam where defendant resides out of and
yung defendant whose identity or whereabouts are unknown. It need is not found in the Philippines, it becomes a matter of course for the
not be a non-resident defendant. In fact, summons may also be served court to convert the action into a proceeding in rem or quasi in rem by
to a person who is a resident but who is temporarily out of the attaching the defendant‘s property.
Philippines.
A person who is not found in the Philippines does not have address in
the Philippines. What is an action in personam? What is an action in rem?
Suppose the action in rem, are you saying that there need to be an
Can a foreign corporation be considered a non-resident attachment in order for the court to acquire jurisdiction?
defendant for the purpose of the issuance of the writ of No. Being in rem, the court has already acquired the res. When the
attachment? case was filed, the court already acquired jurisdiction.
Our laws and jurisprudence indicate a purpose to assimilate foreign If this is an action in personam, which does not involve rights or
corporations, duly licensed to do business here, to the status of ownership over a property, status of the person, then it is imperative
domestic corporations. We think it would be entirely out of line with this that you acquire jurisdiction over the person of the defendant. Then the
policy should we make a discrimination against a foreign corporation, question is, what happens if that is a nonresident defendant, outside
like the petitioner, and subject its property to the harsh writ of seizure the territorial jurisdiction of the courts? That is when Section 1(f)
by attachment when it has complied not only with every requirement applies.
of law made especially of foreign corporations, but in addition with
every requirement of law made of domestic corporations.
Corporations, as a rule, are less mobile than individuals. This is So what kind of action is contemplated in Section 1(f)?
especially true of foreign corporations that are carrying on business by It is an action in personam. So you do not answer ―any action‖ because
proper authority in these Islands. They possess, as a rule, great capital if it is in rem, then there‘s no need to apply Section 1(f) as the court
which is seeking lucrative and more or less permanent investment in has already acquired jurisdiction.
young and developing countries like our Philippines.
STATE INVESTMENT HOUSE vs. CITIBANK
In State Investment vs. Citibank, a foreign corporation licitly doing
business in the Philippines, which is a defendant in a civil suit, may not MAIN CASE: Collection of sum of money and damages
be considered a non-resident within the scope of the legal provision
authorizing attachment against a defendant not residing in the FACTS: Royalty or profit sharing payments due to Consolidated Mines,
Philippine Islands." In other words, a preliminary attachment may not Inc., In. From Benguet Consolidated mining were attached.
be applied for and granted solely on the asserted fact that the
defendant is a foreign corporation authorized to do business in the SIHI and SFCI allege that 3 foreign banks which filed the petition for
Philippines — and is consequently and necessarily, "a party who resides involuntary insolvency of CMI are not Philippine residents, despite the
out of the Philippines." granted to the to do business in the Philippines.
Parenthetically, if it may not be considered as a party not residing in
the Philippines, or as a party who resides out of the country, then, This Court itself has already had occasion to hold 25 that a foreign
logically, it must be considered a party who does reside in the corporation licitly doing business in the Philippines, which is a defendant
Philippines, who is a resident of the country. in a civil suit, may not be considered a non-resident within the scope of
Obviously, the assimilation of foreign corporations authorized to do the legal provision authorizing attachment against a defendant not
business in the Philippines "to the status of domestic corporations,"
residing in the Philippine Islands,” 26 in other words, a premilinary
subsumes their being found and operating as corporations, hence,
attachment may not be applied for and granted solely on the asserted
residing, in the country.
Foreign corporations are juridical persons. Only natural persons are fact that the defendant is a foreign corporation authorized to do business
referred into as non-resident defendants. Hence, it will not apply to in the Philippines – and is consequently and necessarily.” A party who
corporations. That simple. resides out of the Philippines.” Parenthetically, if it may not be
Even if doing business in the Philippines, the rule as to nonresident considered as a party not residing in the Philippines, or as a party who
defendant does not apply. More so, if it is doing business in the resides out of the country, then, logically, it must be considered a party
Philippines. who does reside in the Philippines, who is a resident of the country.

As to Domestic Corporation, can it be considered a non-


resident defendant?
In Mabanag vs. Gallemore, what was the MAIN ACTION? It is a
recovery for sum of money.

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Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

Who is the defendant? Gallemore judgement until there has been a lawful seizure of property owned by
Where is he residing? In Los Angeles, California. It was alleged that him within the jurisdiction of the court.
he has no property in the Philippines except an alleged debt owing him
by a resident of Misamis Occidental.
Was there sufficient basis to attach the credit of the SERVICE OF SUMMONS AGAINST NONRESIDENT DEFENDANT:
defendant? Yes
1)Personal service out of the country with leave of court
So in this case, when the court attached the debt owed to the
defendant, is that equivalent to the acquisition of jurisdiction 2) Publication also with leave court
over the person of the defendant?
3) Any other manner the court may deem sufficient
Yes. The Court has acquired jurisdiction of the case by virtue of the
attachment of the defendant‘s credit. Those authorities and decisions, In case of non-resident defendant the service of summons is comply
so plain and comprehensive as to make any discussion unnecessary, with the requirement of due process but it does not confer jurisdiction
are in agreement that though no jurisdiction is obtained over the over the person of the non- resident defendant.
debtor‘s person, the case may proceed to judgment if there is property
in the custody of the court that can be applied to its satisfaction. In the case of PCIB vs. Alejandro: Alejandro is what kind of
Why is it that there is no acquisition of jurisdiction over the defendant?
person of the defendant even though there is attachment of He is a resident defendant who is temporarily out of the
the property? Philippines.
In case of non-resident defendant, the service if summons is ONLY to
comply with the requirement of DUE PROCESS but it does not confer So what was alleged in the application for attachment?
jurisdiction over the person of the non-resident defendant. PCI Bank alleged that respondent is not a resident of the Philippines.

What is the MAIN ACTION here? Collection for sum of money.


MABANAG vs. GALLEMORE
Was the attachment granted? Yes
DOCTRINE: Court may render judgement in a case where it failed to
obtain personal jurisdiction over a non- resident defendant but whose What was the ground for which it was issued? It was on the
property in the Philippines has been attached representation that respondent is not a resident of the Philippines

MAIN CASE: Recovery of sum money What other grounds? Section 1 c and f
Was the issuance of the attachment valid? No ma‘am, since he
FACTS: Defendant is a resident of Los A ngeles, California, USA who has has a residence in Quezon City and an office in Makati City, the trial
no property in the Philippines except an alleged debt owing him by a court, if only for the purpose of acquiring jurisdiction, could have served
resident of the municipality of Misamis Occidental. summons by substituted service on the said addresses, instead of
attaching the property of the defendant.
As a general rule, when the defendant is not residing and is not found
Maam: OK, the SC held that a person temporarily out of the Philippines
in the Philippine courts cannot try any case against him because of the
which can be served summons by publication must first be served
impossibility of acquiring jurisdiction over his person, unless he summons by substituted service before the publication shall be had.
voluntarily apppears in court. But, when the action affects the personal There is hierarchy of the service of summons. First, personal service,
status of the plaintiff resideng in the Philippines, or is intendend to seize then substituted service, before publication. Since respondents have a
or dispose of any property, real or personal, of the defendant, located residence, then
in the Philippines, it may be validly tried by the Philippine courts, for substituted service should have been had before publication.
then, they have jurisdiction over the res, i.e., the personal status of the You don‘t serve summons by publication simply because the defendant
plaintiff or the property of the defendant, and their jurisdiction over the is out of the Philippines.
person of the non-resident defendant is not essential. Now, Section 1(f) you have to remember that the attachment is simply
to convert the action to action quasi in rem or conversely stated, it is
WAS THE COURT ABLE TO ACQUIRE JURISDICTION OVER THE only for a person, or a case to proceed against a defendant who is not
CASE? YES found in the Philippines. Only then you can serve summons by
publication. Take note that the publication here should be done in the
Court has acquired juridiction of the case at bar by virtue of the Philippines. That‘s there can never be acquisition of jurisdiction over the
attachment of the defendant’s credit. Those authorities and decisions, person of a non-resident defendant.
so plain and comprehensive as to make any discussion unnecessary, are Despite the service of summons by publication, what only served is the
in agreement that though no jurisdiction is obtained over the debtor’s right to due process.
person, the case may proceed to judgement if there is property in the
custody of that can be applied to its satisfaction. PCIB vs. ALEJANDRO

DOCTRINE: Where the defendant is a resident who is temporarily out of


the Philippines, attachment of his property in an action in personam is
WHAT IS THE EFFECT OF ATTACHMENT OF DEFENDANT’S not always necessary for the court to acquire jurisdiction to hear the
PROPERTY? Court acquires jurisdiction over the case case.

In attachment proceedings against a non-resident defendant where MAIN CASE: Complaint for sum of money
personal service on him is lacking, it is elementary that the court must
obtain jurisdiction of the property of the defendant. If no steps have FACTS: In praying for the issuance of a writ of premilinary attachment
been taken to acquire jurisdiction of the defendant’s person, and he has under Section 1 paragraphs (e) and (f) of Rule 57 of the Rules of Court,
no appeared and answered or otherwise submitted himself to the petitioner alleged that (1) respondent fraudulently withdrew his
jurisdiction of the court the court is without jurisdiction to render unassigned deposits notwithstanding his verbal promise to PCIB

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Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

Assistant Vice President Corazon B. Neponemuceno not to withdraw the Corporations, as a rule, are less mobile than individuals. This is especially
same prior to their assignment as security for the loan; and (2) that true of foreign corporations that are carrying on business by proper
respondent is not a resident of the Philippines. authority in these Islands. They possess, as a rule, great capital which
is seeking lucrative and more or less permanent investment in young
OTHER CASES:
And developing countries like our Philippines. Some of them came here
MIALHE vs. DELENQUASING as far back as the Spanish regime and are still important factors in our
financial and industrial life. They are anything but “fly-by-night”
DOCTRINE: Mere allegation tha a defendant is a non-resident is not concerns. The latter, we believe, are effectually excluded from our
enough for attachment to issue. Islands both by our laws and by our geographical and economic
situation.
We find , therefore, and so hold that respondent court had exceeded its
jurisdiction in issuing the writ of attachment on a claim based on action
for damages arising from delicit and quasi delict the amount of which is
WHY ARE FOREIGN CORPORATIONS EXCLUDED?
uncertain and had not been reduced to judgment just because the
defendant is not a resident of the Philippines. Because of the uncertainty Our laws and jurisprudence indicate a purpose to assimilate foreign
of the amount ofplaintiff’s claim it cannot be said that said claim is over corporations, duly licensed to do business here, to the status of dometic
and above all legal counterclaims that defendant may have against corporations. (Cf. Section 73, Act No. 1459, and Marshall Wells Co., 46
plaintiff, one of the indispensable requirements for the issuance of a writ Phil., 70,76; Yu Cong Eng vs. Trinidad, 47 Phil., 385,411.) We think it
of attachment which should be stated in the affidavit of applicant as would be entirely out of line with this policy should we make a
required in Sec. 3 of Rule 57 or alleged in the verified complaint of distrimination against a foreign corporation, like the petitioner, and
plaintiff. The attachment issued in the case was therefore null and void. subject its property to the harsh writ of seizure by attachment when it
has complied not only with every requirement of law made especially of
The defendant referred to here is natural persons. It does not cover
foreign corporations, but in addition with every requirement of law made
foreign or domestic corporations.
of domestic corporations. (Section 73, supra)
CLAUDE NEON LIGHTS vs. PHIL ADVERTISING CORP
Domestic corporation corporation cannot be considered defendant who
DOCTRINE: Domestic or foreign corporations doing business in the does not reside or is not found in the Philippines because by their
Philippines are not covered. registration with SEC, they have a residence which is their principal place
of business. Same with a foreign corporation licensed to do business in
MAIN CASE: Action for damages for alleged breach of agency contract the Philippines which registers with the government their principal places
of business.
FACTS: It is not alleged in said application that Claude Neon Lights, Inc.
Was about to depart from the Philippine Islands with intent to defraud
its creditors or that it was insolvent or had removed or disposed of its
property or was about to do so with intent to defraud its creditors. The Section 2. Issuance and contents of order. — An order of
only statuatory ground relied upon in the court below and in this court attachment may be issued either ex parte or upon motion with notice
for the issuance of the writ of attachment against the petitioner is and hearing by the court in which the action is pending, or by the
paragraph 2 of section 424 of the Code of Civil Procedure, which Court of Appeals or the Supreme Court, and must require the sheriff
provides that plaintiff may have the property of the defendant attached of the court to attach so much of the property in the Philippines of
“in an action against a defendant not resideing in the Philippine islands”. the party against whom it is issued, not exempt from execution, as
may be sufficient to satisfy the applicant's demand, unless such party
Having regard to the reason for the statue which is the protection of the makes deposit or gives a bond as hereinafter provided in an amount
creditors os a non-resident, we are of the opinion that there is not the equal to that fixed in the order, which may be the amount sufficient
same reason for subjecting a duly licensed foreign corporation to the 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
attachment of its property by a plaintiff under section 424, paragraph 2,
may be issued at the same time to the sheriffs of the courts of
as may exist in the case oa a natural residing in the Philippine Islands.
different judicial regions.
The law does not require the latter, as itdoes the former, to appoint a
resident agent for service of process; nor to prove to the satisfaction of How the writ of attachment issued?
the Govenment before he does business here, as the foreign corporation (1) Ex parte; and
must prove, that he “is solvent and in sound financial condition” 9section
(2) Upon motion with notice and
68, Act No. 1459, as amended, the Corporation Law), or to produce
hearing. Who may issue the writ?
evidence of “fair dealing” (ibid). He pays no license fee nor is his
business subject at any time to investigation by the Secretary of Finance The Court in which the case is pending.
and the Governor-General; nor is his right to continue to do business
What kind of courts are talking out here?
revocable by the Government (Cf. Section 74, Act No. 1459 of the It could be the MTC, RTC, Family Court or the CA or the SC. The CA
Corporation Law). His books and papers are not liable to examination and SC can issue writ attachment anywhere in the
“at any time” by the Attorney-General, the Insular Auditor, the Insular Philippines.
Treasurer,” or any other officer of the Government” on the order of the,
GOVERNOR-General (section 54, ibid). He is not, like a foreign What may be attached?
So much of the property in the Philippines of the party against whom it
corporation “bound by laws, rules and regulations applicable to domestic
is issued and the same is not exempt from execution, as may be
corporations”...(section 73, ibid.), which are designed to protect
sufficient to satisfy the applicant‘s demand.
creditors and the public. He can evade service of summons and other
legal process, the foreign corporation never. (Section 72, ibid) So you have to attach all properties?
Only those sufficient to satisfy the applicant‘s demand.

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Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

Can courts in Manila issue writ to courts in Davao? The reason is that by mere filing of the complaint, the court already
A. The last sentence of Section 2 provides that several writes may be acquire jurisdiction over the case. It has now the power to act on any
issued at the same time to the sheriffs of the courts of different judicial application, including the application for writ of attachment, ex parte
regions. application. Kaya nga ex parte eh, kay wala pa sa eksena yung
defendant.
The writ of attachment may be issued anywhere in the Philippines. It
can be effective even to places outside the territorial jurisdiction of the
Now, the question is, can you enforce the writ of attachment
court. The court may issue the writ of attachment and course through prior the service of summons upon the defendant?
the sheriff of another court.
When you speak of issuance of writ of attachment, the court may do
that ex parte or prior the service of summons. But if you talk about
enforcement, then that is the time that you are required to serve the
Can it be defeated upon issuance? summons. The sheriff cannot just take the property without notice.
When the defeated party makes a deposit or gives a bond in an amount Simply put, there must be observance of due process. And you can only
equal to that fixed in the order, which may be amount sufficient to do that by service of summons.
satisfy the applicant‘s demand or value of the property to be attached Sievert vs CA & Davao Light. RE: The issuance of a writ of
as stated by the applicant, exclusive of costs. attachment.
When may the court issue several writs? Writs may be issued at There has to be service of summons first before a writ can be issued.
the commencement of the action However, in Davao Light- even prior to the acquisition of jurisdiction
over the person of the defendant, the court can already act on the
In the case of Sievert vs. CA, what was the ruling of the SC? application for a writ of attachment because the court already acquired
The judge may not issue the WPI before the summons was served. jurisdiction over the case and the rules also say that the writ may issue
There is no question that a writ of preliminary attachment may be at the commencement of the action which happens upon the filing of
applied for a plaintiff "at the commencement of the action or at any the case.
time thereafter" in the cases enumerated in Section 1 of Rule 57 of the
Revised Rules of Court. Cuartero vs CA: What are the stages in the issuance of a writ
The critical time which must be identified is, rather, when the trial court of attachment?
acquires authority under law to act coercively against the defendant or The grant of the provisional remedy of attachment practically involves
his property in a proceeding in attachment. We believe and so hold that three stages:
critical time is the time of the vesting of jurisdiction in the court over
the person of the defendant in the main case.  First, the court issues the order granting the application;
So what is the basic ruling in the 1998 case of Sievert?  Second, the writ of attachment issues pursuant to the order
The critical time which must be identified is when the trial court acquires
granting the writ; and
authority under law to act coercively against the defendant or his
property in a proceeding in attachment. There is requirement that  Third, the writ is implemented.
service of summons before the issuance of the writ of attachment.
At what stage must there be service of summons?
Under this ruling, there must first be service of summons. Now in the Third stage. Upon the implementation of the writ of attachment.
1991 case of Davao Light vs. CA, is there the same ruling? ―Once the implementation commences, it is required that
No. In Davao Light, the SC held that provisional remedies of preliminary the court must have acquired jurisdiction over the defendant
attachment, preliminary injunction, receivership, or replevin may be for without such jurisdiction, the court has no power and
validly and properly applied for and granted even before the defendants authority to act in any manner against the defendant. Any
is summoned or is heard from. order issuing from the Court will not bind the defendant.‖
However, it was likewise ruled that the writ cannot bind and affect the How about in the first two stages?
defendant until jurisdiction over his person is eventually obtained. ―For the initial two stages, it is not necessary that
Therefore, it is required that when the proper officer commences jurisdiction over the person of the defendant should first be
implementation of the writ of attachment, service of summons should obtained.‖
be simultaneously made.
What was the main action? Recovery for a sum of money plus
Take note that in the case of Sievert, the application for injunction damages.
was made separately from the complaint. Ordinarily, when you apply
for a writ of preliminary attachment, you already incorporate it with the How was the writ issued? Was it with a hearing? It was granted
complaint. ex-parte.
What happened in Sievert is, there was a complaint, and there was a ―On August 24, 1990, the lower court issued an order
separate application for the issuance of the writ of preliminary granting ex-parte the petitioner's prayer for the issuance of a writ of
attachment. preliminary attachment. When was the writ implemented?
The writ was implemented simultaneously with the service of summons.
In the case of Davao Light, there was a complaint for collection of
sum of money with an ex parte application for a writ of attachment. ―On September 20, 1990, a copy of the writ of preliminary
Meaning to say, the writ of attachment was already incorporated in the attachment, the order dated August 24, 1990, the summons
complaint. and the complaint were all simultaneously served upon the
So in the case of Aboitiz (Davao Light?), what was the justification given private respondents at their residence.‖
by the Court in saying that the court may now act on the application
for attachment despite the non-service of summons on the defendant? Is it required that there should be hearing before a writ of
Rule 57 speaks of grant of remedy ―at the commencement of the attachment can be issued?
action or at any time thereafter‖. The phrase ―at the commencement No. The only requisites for the issuance of the writ are the affidavit and
of the action‖ obviously refers to the date of the filing of the complaint, bond of the applicant.
which, as pointed out, is the date that marks the commencement of the ―Under section 3, Rule 57 of the Rules of Court, the only
action, and the reference plainly is to a time before summons is served requisites for the issuance of the writ are the affidavit and
on the defendant, or even before summons issues. bond of the applicant. No notice to the adverse party or
hearing of the application is required inasmuch as the time
which the hearing will take could be enough to enable the

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Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

defendant to abscond or dispose of his property before a writ more than exercise his sound discretion in determining the
of attachment issues. In such a case, a hearing would render sufficiency of the affidavit.
nugatory the purpose of this provisional remedy.‖
In view of the foregoing considerations, we are of the opinion
In what instances when despite compliance with the affidavit and so hold that the mere filing of an affidavit executed in
and bond requirement, a hearing is still required? due form is not sufficient to compel a judge to issue an order
Salas vs Adil. Was there hearing conducted here? of attachment, but it is necessary that by such affidavit it be
No hearing was conducted. The writ of attachment was issued ex-parte. made to appear to the court that there exists sufficient cause
for the issuance thereof, the determination of such
What was the main action? sufficiency being discretionary on the part of the court.
Annulment of a deed of sale and recovery of damages.
It is not enough that you comply with the requirement of an affidavit.
How was the writ of attachment applied for? Was it granted? The affidavit itself must be sufficient. If it is not sufficient, it is now the
Respondents filed a Motion for Attachment. It was granted by the Court. discretion of the Judge to call for a hearing. If you do not comply with
Was the ex-parte issuance of the writ proper? No. the presentation of evidence, then the judge can deny your application.
―Considering the gravity of the allegation that herein
petitioners have removed or disposed of their properties or Aug 7, 2018 (2nd Hour) ICFC (59:49-109:02)
are about to do so with intent to defraud their creditors, and
further considering that the affidavit in support of the pre Section 3. Affidavit and bond required. — An order of attachment
attachment merely states such ground in general terms, shall be granted only when it appears by the affidavit of the applicant,
without specific allegations of instances to show the reason or of some other person who personally knows the facts, that a
why plaintiffs believe that defendants are disposing of their sufficient cause of action exists, that the case is one of those
properties in fraud of creditors, it was incumbent upon the mentioned in section 1 hereof, that there is no other sufficient
respondent Judge to give notice to petitioners and to allow security for the claim sought to be enforced by the action, and that
them to present evidence to support their allegation.‖ 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
If the affidavit does not particularly allege the ground for attachment, for which the order is granted above all legal counterclaims. The
specifically if it is based on FRAUD, then there has to be a hearing affidavit, and the bond required by the next succeeding section, must
conducted in order to ascertain the basis of the application. General be duly filed with the court before the order issues
averments specifically on the ground of fraud will not suffice.

La Granja vs Samson: What was the case all about? And what Q: What is the guidance of the court in determining the amount
was the basis for the application of the writ? of the bond, usually? What is the basis?
Recovery of sum of money. GROUND: Sec. 1(e). ―That the said
defendants have disposed or are disposing of their properties in favor Maam: it is the amount of the obligation stated under oath in the
of the Asiatic Petroleum Co., with intent to defraud their affidavit. Ano ang requirements ng affidavit? Dapat due. Remember, you
creditors. only attach so much of the property of the defendant as to cover the
obligation that you are enforcing. If it will be more than that, there will
be excessive attachment and that is not allowed.
Was the writ issued?
Petitioner was required to present evidence before the Judge would Attachment is a HARSH remedy. Pag na sheriff ang property mo,
grant its petition. malaking kahihiyan yan. That why there is a bond required. The bond
will answer for all damages suffered by the DEFENDANT in the event it
―The respondent judge, wishing to ascertain or convince turns out that the attachment that you were able to obtain from the
himself of the truth of the alleged disposal, required the petitioner court becomes baseless. Like you gave a false affidavit. If your affidavit
herein to present evidence to substantiate its allegation, before granting contains falsities and yet on the basis of that a writ of attachment is
its petition.‖ And? issued, and there was seizure of properties of the defendant. After the
writ was issued after you posted a bond it turns out later that yung mga
―Petitioner refused to comply with the court's requirement,
falsities mo eh lumabas na either in a motion to discharge or in the
alleging as its ground that it was not obliged to do so. The
course of trial and in the judgment of the main case, lalabas na no cause
respondent judge dismissed said petition for an order of
of action pala ang plaintiff, not entitled to the writ, then the bond will
attachment.‖
answer for the damages caused by the writ of attachment.
Was the denial of the application proper? Yes.
―Although the law requires nothing more than the affidavit Again, attachment is a harsh remedy. Ot subjects the defendant to
as a means of establishing the existence of such facts, humiliation, embarrassment, specially if scandalous ang pag hila ng mga
nevertheless, such affidavit must be sufficient to convince the properties. So of the sheriffs are aggressive when they seize assets.
court of their existence, the court being justified in rejecting So the requisites of the affidavit and the bond, on paper, sinasabi jan
the affidavit if it does not serve this purpose and in denying must be submitted before the issuance of the writ but it does not mean
the petition for an order of attachment. The affidavit filed by that both of them must be filed in court together or at the same time.
the petitioner, La Granja, Inc., must not have satisfied the It could be complied with in different stages of this particular remedy.
respondent judge inasmuch as he desired to ascertain or The first one is in the application.
convince himself of the truth of the facts alleged therein by
requiring evidence to substantiate them. The sufficiency or Q: Now, Supposing you do not submit an affidavit. Can you still
insufficiency of an affidavit depends upon the amount of be granted of your application for a writ of attachment?
credit given it by the judge, and its acceptance or rejection,
upon his sound discretion. Maam: Yes, you still can be granted. If your application is in the
complaint Normally that can be considered as substantial compliance.
Hence, the respondent judge, in requiring the presentation Like in all other initiatory pleadings that are verified and you include
of evidence to establish the truth of the allegation of the there your application for provisional remedies. There are cases when
affidavit that the defendants had disposed or were disposing we can say that there is substantial compliance.
of their property to defraud their creditors, has done nothing

20
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

So the bond here, you only arrive at the stage of the posting of the bond enforced in the action should be attached. That’s why we need to strictly
when the court has already issued an order granting the writ. Because comply with the affidavit, you need to be very clear of the amount that
only in that order that the court will fix the amount of attachment and you are claiming, it must be due, demandable and determined. It cannot
the amount of the bond to be fixed by the court usually depends on the be unliquidated. Only properties of the defendant corresponding to that
obligation that you have alleged in your affidavit. The court will not just will be attached.
put an amount there out of nowhere without a basis, and usually that is
the amount of the obligation that you have stated in your affidavit. So if the amount claimed is 1 million, and yet what is attached is not
just the real property but also all the vehicles, all the bank accounts,
Q: Under Section 4 what is the condition attached to the bond? that’s too much. Kung ano lang yung commensurate na property, yun
Sec. 4. Condition of applicant's bond. lang ang i-attach, sufficient to answer for the claim of the attaching
The party applying for the order must thereafter give a bond creditor. You cannot over attach because there can be an effect sa
executed to the adverse party in the amount fixed by the court in its ground to discharge the attachment in so far as the excess in concerned.
order granting the issuance of the writ, conditioned that the latter
will pay all the costs which may be adjudged to the adverse party Q: When there is discharge as to the excess, what happens?
and all damages which he may sustain by reason of the attachment, A:
if the court shall finally adjudged that hte applicant was not entitled
there to. Maam: so as early as the service or during the enforcement of the writ,
the defendant can have the remedy of counter-bond.
A: It shall answer for the ff if the court shall finally adjudge that the
applicant was not entitled thereto: Q: When may we post the counter-bond prior? What stage?
a. Payment for the cost which may be adjudged to the adverse Maam: So under section 2, even at the issuance of the writ, before the
party, and service of the writ you can now post a counter-bond or deposit the
b. All damages which he may sustain by reason of the property in court. I would say, that the counter-bond, the issuance of
attachment the writ, the remedy of a counter-bond already be availed of.
Maam: If it turns out that he is not entitled to that remedy, then the
bond will answer for all damages sustained by the defendant including
Usually, what is the amount the of the counter-bond? (TN: from Section
costs. So pa sinabing damages, kasama na lahat, MENTAL and atty’s
2, Rule 57: “..such party makes deposit or gives a bond as hereinafter
fees.
provided 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
Q: What is the form of the bond?
costs.”). So kung ano yung na-fixed na bond, pwede mona rin siyang
A: Money, Property,surety.
gawing basis sa counter-bond. If it’s P200,000, pwede ka na agad mag
post ng P200,000 as counter-bond if you are the defendant, even
Q: Can an applicant make an undertaking?
without any service of the writ yet. Diretso kana sa court. So that can
A: In the case of ARELLANO V FLOJO, The SC said that: “Indeed, he
be done, and you will be guided now by the clerk of court what to do on
issued the Writ of Attachment although the plaintiffs have not yet posted
how you can successful post your counter-bond. In Section 2, in the
the required attachment bond. It is explicitly stated in his Comment that
issuance stage of the writ there is already a mention of the counter-
what was filed was merely an undertaking. The fact that the
bond and also the posting of property.
"Undertaking" was subscribed by the branch clerk of court does not
necessarily follow that it carried the imprimatur of the presiding judge
Q: Can you prevent the issuance of the writ by the posting of a
thereof. As a lawyer, respondent Bangalan, who is now a Judge should
counter-bond? Or is it only a remedy against the enforcement?
have known the glaring distinctions between a plain undertaking and a
(Maam: we already know that the counter-bond is a remedy for the
real attachment bond. Where a statute authorizing attachment requires,
enforcement of the writ. We are looking here on the perspective of the
as a condition to the issuance of the writ, that a bond shall be given by
DEFENDANT. if you are the counsel of the defense, can you defeat the
plaintiff to indemnify defendant for any loss or injury resulting from the
issuance of the writ by posting the counter-bond?)
attachment in case it proves to be wrongful, a failure to give such bond
A: Yes.
is fatal, and an attachment issued without the necessary bond is invalid.”
Maam: Take note, the first phrase in section 2, an order of attachment
Maam: the undertaking here was really sort of a promissory note. There may be issued, so the issuance can be qualified as either ex parte or
was no actual posting of any amount, or surety or property. Only an upon motion with notice and hearing by the court in which the action is
undertaking, a promise. Obviously that is not the bond required by law. pending. And must require the sheriff of the court to attach so much of
when you say bond, it must be there, always ready to pay damage that the property in the Philippines of the party against whom it is issued, so
may be suffered by the defendant. because anytime the defendant can that what is the content of the order of attachment. Unless such party
move for the discharge of the attachment and anytime the writ could be makes deposit or gives a bond as hereinafter provided in an amount
discharged for any irregularity, impropriety, insufficiency of the equal to that fixed in the order. So what is the issuance here being
application. Therefore, that bond must be there all the time whenever referred to? order granting the writ or the issuance of the writ?
the contingency arises that payment must be made out of it in order to
indemnify the defendant for all damages by reason of the issuance of The writ now will make that command to the sheriff to seize properties
the writ when the applicant is not entitled thereto. of the defendant not exempt from execution sufficient to satisfy the
applicant’s claim or demand. That is the content of the writ. It is a
Q: Is there an exemption to the bond requirement? command or order to the sheriff. That will be issued, ex parte or upon
A: in the case of PEOPLE V FLORES, Where the Republic of the motion. Then you have this phrase “Unless such party makes deposit or
Philippines as a party to an action asks for a writ of attachment against gives a bond as hereinafter provided in an amount equal to that fixed in
the properties of a defendant, it need not furnish a bond. This is so the order”. So what does this phrase qualify or refer to? Issuance of the
because the state is presumed solvent. writ.

Maam: That’s what you say. Pahirapan ang pagsingil sa gobyerno. They The mere fact that counter-bond was mention in that section regarding
should’ve been the one to post the bond. This is a source of corruption the issuance of the writ, you can already avail of that remedy as early
pa. as this stage even before the writ is issued. It says there MAY BE
ISSUED, permissive. So pwedeng siya na hindi i-issue kung nag post si
Q: What may be attached? defendant ng couner-bond. That’s how I see it. If the remedy of counter-
Maam: Only such property as to answer for the obligation being

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Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

bond is not available at this stage, the rules should not have mentioned Q: What is the exemption to that?
it in section 2. - The requirement of prior or contemporaneous service of
summons shall not apply:
So kung ikaw si defendant, alam no na may regular proceeding, may  where the summons could not be served personally
application, may summons, hearing, nakatanggap ka ang order after or by substituted service despite diligent efforts, or
hearing, granted ang kanyang attachment. So nag-prescribe na si court  the defendant is a resident of the Philippines
ng amount ng kanyang attachment bond na ipo-post. So nag post na temporarily absent therefrom, or
ngayon si plaintiff. When the attaching creditor posts the attachment
 the defendant is a non-resident of the Philippines,
bond, is the plaintiff required to furnish the defendant? no, the rules
or
does not require. Only when the enforcement of the writ is made that
you will be furnished a copy of the attachment bond together with the  the action is one in rem or quasi in rem
writ and the order granting the writ.
Q: What if the writ was served ahead of the summons, can there be
substantial compliance?
Why do you need to be furnished of the copy of the attachment
Q: If the writ was served 6 days before the service of summons, can
bond?
there be substantial compliance?
Maam: So that the defendant can see that it is really sufficient because
- There can be no substantial compliance, as decided by the SC
one of the grounds to discharge the writ is also when the bond is
insufficient. Dapat ang bond, writ, and order granting the writ in regular in the case of OÑATE V. ABROGAR:
proceeding, you can’t be given copies of the bond. Now kapag ex parte The attachment of properties before the service of
naman, application diretso ka sa order kasi wala pang summons, then summons on the defendant is invalid, even though
the order, the writ, the summons, the complaint and a copy of the bond the court later acquires jurisdiction over the
will be served simultaneously on the defendant pagdating sa defendant. At the very least, then, the writ of
enforcement stage. That’s how it is. attachment must be served simultaneously with the
service of summons before the writ may be
So as early as the issuance stage, pwede mo siyang i-prevent. You only enforced. As the properties of the petitioners were
need to know kung nag issue na ang court ng order granting the writ attached by the sheriff before he had served the
with the amount fixed for the bond, pwede mo ng puntahan ang court summons on them, the levies made must be
at mag post ng counter-bond on the basis of the amount of the bond considered void.
that was fixed by the court because the counter bond is in the same Q: If the defendant is a foreign corporation, who must be served with
amount fixed by the court. And when you do that, no enforcement stage the writ and the summons?
na and you will know that because you participated in the proceedings
you either actively oppose in the issuance of the writ pero wala, natalo - In the case of HB ZACHARY V. CA, it was held that when a
ka. So ang ginawa ng court, nag resolve siya sa application granting the foreign corporation has designated a person to receive service
writ and will only issue the writ upon the posting of the bond in such of summons pursuant to the Corporation Code, that
amount, so nakatanggap ka ngayon ng order, what do you do, edi mag designation is exclusive and service of summons on any other
post ka ng counter-bond. Take note, kailangan muna mag post ng bond, person is inefficacious.
there can be no counter-bond if there is no bond in the first place.
Hintayin mo muna na mag post ng bond ang kabila saka ka mag
counter-bond because what you want to defeat here is just the issuance Q: In that case, was the service of the writ valid?
of the writ, para walang hilaan ng property na mangyayari later, that’s - No. Because the writ of attachment was served on a person
the point there. You do not pre-empt the posting of the bond by not authorized by law to receive summons for and in behalf
immediately posting your conter-bond because that is to your of the defendant corporation. Summons was served thru Ruby
disadvantage, you will have no protection in case there is improper Apostol, but not to its designated resident agent Atty. Lucas
issuance of the writ. Nunag, whom any summons and legal processes against it
may be served pursuant to Sec. 128 of the Corporation Code.

August 14, 2018. EBL Q: If the writ was not validly served, what is the remedy?
Enforcement of a Writ of Attachment: - As the defect was only on the enforcement of the writ and not
- No levy on attachment pursuant to the writ issued under its issuance, the writ of preliminary attachment may be
section 2 hereof shall be enforced unless it is preceded, or validly served anew.
contemporaneously accompanied, by service of summons,
together with a copy of the complaint, the application for Q: Should you apply for a new writ?
attachment the applicant's affidavit and bond, and the order - No, the defect is only on the enforcement.
and writ of attachment, on the defendant within the
Q: What else can you serve, when the writ is already served? What do
Philippines. (Sec. 5, Rule 57)
you served?
Q: When shall the Sheriff enforce the Writ?
- The sheriff enforcing the writ shall: - As the properties were attached by the sheriff before he had
served the summons on them, the levies must be considered
 without delay and with all reasonable diligence
void
attach only so much of the property in the
Philippines of the party against whom the writ is Q: After the sheriff has served the writ, what must the sheriff do?
issued - After enforcing the writ, the sheriff must likewise without
delay make a return thereon to the court from which the writ
Q: When? At what point of the procedure?
issued, with a full statement of his proceedings under the writ
Q: So if the documents that you have mentioned will be served together
with the writ, what stage of the proceeding is that? and a complete inventory of the property attached, together
Q: Should the sheriff first serve the summons before serving the writ? with any counter-bond given by the party against whom
- No, the service of summons may precede or attachment is issued, and serve copies thereof on the
contemporaneously served with the writ. applicant. (Sec. 6, Rule 57)

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Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

- During the enforcement of the writ, the sheriff can actually - It will be annotated at the back of the title
receive a counter-bond from the defendant. And it must also - So if it is a titled property, you need to cite the title number
be stated in the sheriff’s return. because aside from recording the notice of levy in the books
of ROD, it must also be annotated at the back of the title. So
it becomes a notice that will appear at the back of the title, as
Q: How many days does the sheriff have to file for the return? an encumbrance.
- Based on the Manual for Clerks of Court Chapter VIII (e) (4):
Q: What happens if it is unregistered land? How do you annotate without
All sheriffs and deputy sheriffs shall submit a report to the a title? What will the ROD do?
judge concerned on the action taken on all writs and - By recording it in the books
processes assigned to them within (10) days from receipt of
said process or writ. Said report shall form part of the records. Q: Is the recording in the book as well as annotation in the title the
notice of levy sufficient?
Q: So 10 days from receipt, not from enforcement? - No, according to the rules there should also be a notice given
to the occupant of the property
Q: If the property of the defendant is a real property, how will the levy
be made? Q: So what happens if the occupant of the property is not notified or
- Real property, xxx is levied there is no notice served?
 by filing with the registry of deeds a copy of the - The failure to notify the occupant of the property will
order, together with a description of the property invalidate the attachment.
attached, and a notice that it is attached, or that
such real property and any interest therein xxx and Q: In the case of OBAÑA V. CA, was there a valid levy here?
 by leaving a copy of such order, description, and - There was none as there was no notice given to the occupant
notice with the occupant of the property, if any, or of the property. Its registration in the ROD as well as
with such other person or his agent if found within annotation in the title is invalid
the province
 Where the property has been brought under the Q: When was the levy made?
operation of either the Land Registration Act or the - It was inscribed in the title in 1972.
Property Registration Decree, the NOTICE shall
contain: Q: But there was a sale? Yes.
 a reference to the number of the
certificate of title, Q: So who should be notified here? The previous owner or the new
 the volume and page in the registration owner?
book where the certificate is registered, - The new owner. The previous owner was not the occupant of
and the property.
 the registered owner or owners thereof
Q: How come that the levy here was considered void, when there was
Q: What if the property is not titled? How will the application be made prior notice of levy in the ROD?
when there is no title? - Despite the notice on the part of the purchaser, the court still
- The levy must also be made before the ROD, and it will be rule that there was no valid notice of levy all notices were
recorded in their record book. served through mail to defendant Dizon at 34-H
- It must include a clear description of the property Caingin Road, Cypress Village, Quezon City.
- It should be noted that Section 7 of Rule 57 requires that in
Q: What is the reason behind the requirement that you must state the attaching real property a copy of the order, description, and
title number, the volume number, and the name of the owner in the notice must be served on the occupant, in this case the
levy? occupant at 48 Damortiz Street, Damar Village, Quezon
- To notify the third persons or the whole world that the said City.
property is attached or under custodia legis
If you look at this from the point of view of the REGISTRATION
Q: In the case of SIARI VALLEY VS. LUCASAN was there a valid levy LAW, the levy should have been valid. As the purchaser already
of a registered property? knew about the levy, it was annotated at the back of the title. But
- No. The notice contains that it is an unregistered land where the SC came out with a completely different ruling maybe because
in fact it is already covered by a certificate of title and such it saw the transaction to be iniquitous and inequitable. It was
notice does not make a reference to the number of the mainly a collection to enforce the attorney’s fees, which is
certificate of title, the volume and the page as well as the considered to be exorbitant, it does not commensurate the efforts
description of the property. of the lawyer. Maybe that’s the main consideration why the levy
was nullified.
Q: In the case of RAVANERA VS. IMPERIAL was there a valid levy?
- Yes Q: If a writ of attachment or notice of levy was already annotated and
subsequently there was a notice of lis pendens, which will prevail?
Q: Was everything complied? What was missing? - It is the annotated writ of attachment.
- The requirement of Section 7(a), Rule 39 of the Revised Rules - It is because it will render the rules on levy illusory if the
of Court is substantially complied with subsequent notice of lis pendens prevails over the annotated
- What was provided was only the title number, without the attachment.
volume number and the page number
- So aside from going to the ROD you have to register the levy. Q: Why is a prior registration of a notice of levy superior than the
subsequent annotation of notice of lis pendens?
Q: If it is final, where do you register? - It retroacts to the date of levy.
- If it is final, the notice of levy will be registered in the ROD - It is the act of registration that should be the operative act
that will affect the levy in so far as the third persons are
Q: What will happen to the notice of levy? concern.

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Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

- The only way that you can bind the whole world is when you
In REGISTRATION LAW, the rule of thumb there is PRIORITY. So have it registered.
whoever registers first will have superior right, unless the registration is - So in this case, since the sale was not registered but the notice
invalid. So if you are able to register your notice of levy or if you are of levy was registered. Then it is the notice of levy that is
able to levy on the real property by registering a notice of levy, then superior and it binds the whole world.
later on there is notice of lis pendens, obviously the first to be registered - So when you look at this at the point of view of the
will be superior. Even though your execution sale occurs much later or REGISTRATION LAW, you must be guided by the principle of
even after the registration of the notice of lis pendens. Because the registration or lack of registration.
execution sale will retroact to the date of the registration of the notice
of levy. That’s why it is superior. Q: Is the rule that the unregistered transaction or unregistered sale will
be a subservient to a subsequent registered notice of levy? Is that
Going back to the case of OBAÑA V. CA, if you look at it from that point absolute?
of view, any subsequent sale of the property will retract to the date of - There is an exception. If the party knows of the prior sale, it
levy which occurs prior to the sale of the property. If you apply that is tantamount to registration.
same principle under the registration law, it should have been valid. - Whoever has actual knowledge, will be bound by the
transaction. They cannot claim ignorance, despite it is
In this case of DU V. STRONGHOLD, the notice of levy here was made unregistered.
earlier. Later on, there was a notice of lis pendens. So any sale of
execution of the property will be considered to retroact to the date of Q: When a property is a personal property, capable of manual delivery,
notice of levy. Even though the sale occurs much later. That’s the how will the sheriff enforce the writ or levy the property?
significance of having a notice of levy registered in the ROD and - Under Rule 57, Sec 7 (b) “personal property shall be attached
annotated on the title. by the sheriff executing the writ, by taking and safely keeping
it in his custody, after issuing the corresponding receipt
And because it retroacts to the date of notice of levy, any acquisition of therefor”.
the property is deemed to have occurred on the date of the registration
of the notice of levy. Q: Can the sheriff make a verbal declaration that he is attaching the
personal property? Will that be enough?
Q: How about if there was an unregistered sale prior to the notice of - In the case of WALKER V. MCMICKING, the lower court
levy, which will prevail? The sale or the notice of levy? held that mere verbal declaration of attachment is not
- In the case of VALDEVIESO V. DAMALERIO, the settled sufficient. The rule provides that the sheriff must have actual
rule is that levy on attachment, duly registered, takes possession and place the attached property under the control
preference over a prior unregistered sale. of the officer.

- The preference created by the levy on attachment is not Q: Can the sheriff take the property and indorses it to the plaintiff?
diminished even by the subsequent registration of the prior - No.
sale. This is so because an attachment is a proceeding in rem.
It is against the particular property, enforceable against the Q: After taking the property, what should the sheriff do?
whole world. The attaching creditor acquires a specific lien on
the attached property which nothing can subsequently Q: In the case of WALKER V. MCMICKING, what properties were
destroy except the very dissolution of the attachment or levy levied? Was there actial seizure of the properties?
itself. - There was no actual seizure. The property was left in the
possession of the defendant.
Q: How can you attach something that has already been sold, although
it is not registered? Isn’t that the attachment should be against the Q: Is that valid?
property of the defendant? So if the defendant already sold the property, - No. the SC held that the sheriff must have possession and
will the sheriff still be justified in attaching the property? control over the property.
Technically, what the sheriff attached was no longer a property of the
defendant. On that ground, can that be considered as an invalid Q: Why must he have possession and control?
attachment? - The officer levying it must take actual possession of the
property attached as far as under the circumstances is
Q: Are you sayong that the sale was not valid because it was not practicable. He must put himself in position to, and must
registered? assert and, in fact, enforce a dominion over the property
Go back to your Obligations and Contracts. Is registration essential for adverse to and exclusive of the attachment debtor, and
the validity of a contract? such property must be in substantial presence and
- The sale is valid even if it is unregistered. possession.

Q: So if it is valid sale, was there a valid attachment? Considering that Q: If he leaves the property with the defendant, and the defendant gives
what was attached was no longer the property of the defendant? an undertaking that he will produce it whenever needed, would that be
- Yes, the sale is valid but it will not bind third persons. enough?
- No. In the case of NBI V. TULIAO, the note in the receipt
Q: Why not? that imposed on Ignacio the obligation to produce the
- Here, you apply again the LAW on REGISTRATION. same whenever required by the court was no compliance
- That any transaction affecting realty will only bind the world either, because it did not establish that the property was
or the third person by the operative act of registration. in respondent sheriff's substantial presence and
- As far as the third persons are concerned, they are not bound possession. The sheriff fell short of his obligation to take
by your agreement, until and unless that agreement is and safely keep the attached property "in his capacity”.
registered. If the sheriff takes actual possession of all personal properties in several
- So whatever transaction you may have, that may be valid as cases, he will have a problem with the storage.
between the two of you but it cannot bind third persons. It
cannot bind the whole world. In the case of NBI V. TULIAO, we are talking of a jeepney. In the case
of WALKER V. MCMICKING, we are talking of properties in the

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Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

factory. Where will the sheriff puts all those properties if he needs to Q: What happen in the case of ELIPE V. FABRE?
take actual possession? His office will be dilluge of all of these items. 
That is one of the reasons why the sheriff would say that he is not taking  What did the sheriff do?
possession of the properties anymore. Because he don’t have a place to  Did the sheriff make a timely levy?
store them. How will you address the issue on storage?  What did he attached?
- In the case of NBI V. TULIAO , the sheriff’s claim that the  Were there other properties that he may
RTC did not have any storage facility to house said attached at the time of the levy?
property is not justified. He could have deposited it in a
bonded warehouse. Here, the sheriff chose to attach properties with lesser value. When you
attach, the writ of attachment would say “only so much of the property
Q: Who will pay for the bonded warehouse? If it will be shouldered by of the defendant that will commensurate the claim of the plaintiff”. In
the attaching creditor, will that be tantamount to a delivery to the doing so, he must be able to ascertain what items to take inorder to
attaching creditor? If the attaching creditor has a big warehouse, can satisfy the claim. If the claim is 100K, he must be able to seize items
the sheriff deliver the seized property in such warehouse, to solve his equivalent to that amount. What was seized here was only a dilapidated
problem in the storage? vehicle and an old piano. How will you put a value to those? Would that
be enough? Because of that, the other properties of the defendant were
If the sheriff seizes or actually takes possession of the personal property spirited away and the plaintiff can no longer satisfy the claim.
levied, he must keep possession or must have actual custody. Which
means that he cannot leave the property to the defendant or the Q: Can the sheriff be held liable here? On what ground?
plaintiff. He cannot leave the properties to either of the properties. It - He can be held administratively liable. If there is corruption
must be under his possession. That is the only way that it can be said involved, he can be criminally liable.
the it is under custodia legis or under the authority of the court, subject
to the outcome of the case and subject to further order of the court. The general rule is there must be actual possession or actual seizure.
The sheriff is not allowed to release to either of the parties. He cannot
leave it to the defendant, obviously because the defendant can easily Q: Is there an exception?
abscond with the property. Neither can he give it to the plaintiff because - Constructive Levy, as held in the case of ROQUE V. CA,
the case is nit yet won. Even if the attaching creditor wins the case, he involving a vessel.
is not entitled to the property automatically. There must be an auction - Constructive possession should be held sufficient where
sale first before he can have the proceeds of the sale awarded to him. actual possession is not feasible, particularly when it was
followed up by the actual seizure of the property as soon
Q: What happens if the sheriff turns over the property to the plaintiff or as that could possibly be effected.
attaching creditor? What is the effect? - The notice of levy is registered with the Phil. Coast Guard.
- The enforcement of the writ is not valid. It becomes void or - Registration + actual seizure = valid levy
fatally defective. There is no valid enforcement of the writ and - In cases of a vessel, you attach it by registering it to the Phil.
levy on the property. Coast Guard. If you can take possession, you take possession
but you do not brong it to the court. Just leave it where it is.
Q: If there is seizure of properties that are not owned by the defendant? That will put it under custodia legis.
What is the effect?
- The sheriff should follow the mandate of the writ. If the writ Q: How long can you enforce a writ attachment?
states “to seize the properties of the defendant”, then that’s - Nothing in the rules will tell you how long should the sheriff
what the sheriff should do. He has no business in seizing the enforce the writ. But if you check the manual, enforcement
property of other persons. must be made within 10 days.

In so far as real property is concern, there no such difficulty in so far as Q: How do you levy on shares of stocks?
determining the owner. You just rely on the title.But when it comes to - Under Rule 57, Sec 7 (c) Stocks or shares, or an interest in
personal property capable of manual delivery, how will you know if that stocks or shares, of any corporation or company, shall be
is really owned by the defendant? There is no registration that you can attached by the sheriff executing the writ, by leaving with the
check. president or managing agent thereof, a copy of the writ, and
- In case it is a car, no problem. You go to the LTO to check. a notice stating that the stock or interest of the party against
But if it is not a car or a vehicle, how will you determine whom the attachment is issued is attached in pursuance of
ownership? such writ.
- The general rule is, the sheriff cannot attach properties that
do not belong to the defendant. He has to follow what is
mandated in the writ. It is a ministerial duty on his part to What must be served with president or managing agent?
implement the writ according to the terms and conditions of - The writ itself and the notice of levy
the writ. He cannot go beyond it. He cannot circumvent what
is stated in the writ. He has to follow the writ to the letter. Q: Instead of serving it to the president, can you serve it to the secretary
of the president?
Q: What is the liability of the sheriff if he fails to execute the writ? - In the case of SUMMIT TRADING & DEV‟T CORP V.
- Under the manual, the execution and the return must be AVENDANO, Saquilayan, being the secretary of the
made within 10 days from receipt of the writ. From the president (whose contact with the outside world is
moment he gets copy of the writ. normally through his secretary), may be regarded as an
- As clearly stated in the Manual for Clerks of Court, a "agent" within the meaning of the rule, since service upon
sheriff, to whom a valid writ or process is delivered to her of the judgment itself came to the notice of Summit
be levied upon a property within his jurisdiction, is liable Trading.
to the person in whose favor the process or writ runs if
he fails to make a levy upon property owned by the Q: Is it required that the notice of levy must be registered in the
judgment debtor within his jurisdiction and by reason corporation’s stock and transfer book?
thereof the judgment creditor is injured. (ELIPE V. - No. As held in the case of CHEMPHIL EXPORT AND
FABRE) IMPORT CORP. V. CA, both the Revised Rules of Court
and the Corporation Code do not require annotation in

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Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

the corporation's stock and transfer books for the August 21, 2018 (morning class) ST
attachment of shares of stock to be valid and binding What is garnishment?
on the corporation and third party. Garnishment is a species of attachment or execution for reaching any
- The attachement of shares of stock here was not considered property pertaining to the judgment debtor by a third person. BY this
as an absolute transfer of ownership of shares of stock means the such debtor becomes a forced intervenor and the court,
- Only absolute transfers of shares of stock are required having acquired jurisdiction over the person by means of the citation,
to be recorded in the corporation's stock and transfer book requires him to pay his debt, not to the his former creditor, but to the
in order to have "force and effect as against third persons. new creditor, who is the creditor in the main litigation. It is merely a
case of involuntary novation by the substitution of one creditor for
Q: How do you classify a share of stock? What is the nature of such another (maki notes).
property?
- They are personal property NOT capable of manual delivery How do your effect garnishment?
- You cannot have actual possession of shares of stock. It is an Garnishment can be effected same as writ of attachment where the
incorporeal right. order of the notice is served to the person owing to the judgment debtor.

Q: The 4th type of property under Sec 7, how do you classify this? What did the third person do?
- Under Rule 57, Sec 7 (d) Debts and credits, including bank The third person will merely preserve or (inaudible) if it is a personal
deposits, financial interest, royalties, commissions and others property then the third party will surrender or deliver to the sheriff his
are personal property NOT capable of manual delivery. personal property which can be transferred or delivered. It if cannot
be delivered, then the third person can hold possession of such property
Q: How do you attach this type of properties? that he owing to the judgment debtor .
- It shall be attached by the sheriff executing the writ, by
leaving with the person owing such debts, or having in his So when garnishment is made, the third party will deliver the property?
possession or under his control, such credits or other personal If the property is capable of manual delivery, then it may be delivered
property, or with his agent, a copy of the writ, and notice that to the sheriff.
the debts owing by him to the party against whom attachment
is issued, and the credits and other personal property in his How do you attach an interest to a property belonging to the decedent?
possession, or under his control, belonging to said party, are (e) The interest of the party whom attachment is issued in property
attached in pursuance of such writ. belonging to the estate of the decedent, whether as heir, legatee, or
- It is also known as GARNISHMENT, a specie of attachment devisee, by serving the executor or administrator or other personal
but only with respect to specific properties ( Debts and credits, representative of the decedent with a copy of the writ and notice that
bank deposits, financial interest, royalties, commissions), said interest is attached. A copy of said writ of attachment and of
which are held or in the possession of another person. said notice shall also be filed in the office of the clerk of the court in
Although it belong to the defendant, another person is owing which said estate is being settled and served upon the heir, legatee
such property. or devisee concerned. If the property sought to be attached is in
- In a case of bank deposit, there is a debtor- creditor custodia legis, a copy of the writ of attachment shall be filed with the
relationship between the bank and the depositor. If the proper court or quasijudicial agency, and notice of the attachment
defendant is the depositor, he is the creditor of the bank. The served upon the custodian of such property.
deposits in the bank are actually governed by the rule on
creditor- debtor relationship. The bank holds the property of
the defendant. By serving the notice or order to the administrator or other personal
- If you want to attach the bank deposit, the proper kind of representative of the decedent with a copy of the writ and notice that
attachement is garnishment. said interest. 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
Q: When it comes to judgment debt, how will that be attached? estate is being settled and served upon the heir, legatee or devisee
- It will also be attached in the form of garnishment concerned.
Who will be given notice?
Q: In the case of TAYABAS LAND CO. V. SHARRUFF, how did the The persons be given notice will the executor, administrator or other
sheriff attach the judgment debt? personal representative of the decedent.
- Instead of following the process of garnishment, the judgment
debt here was exposed to a public sale, wherein it was sold.. That is it?
 How much is the judgment debt? A copy of said writ of attachment and of said notice shall also be filed in
 How much was it sold? the office of the clerk of the court in which said estate is being settled
 How can you buy a specific some of money? and served upon the heir, legatee or devisee concerned.
- That’s illogical. It is absurd. You buy a judmeny debt worth 6k
by paying 200. That is a wrong procedure. The sheriff treated What is the effect of garnishment?
the judgment debt as if it was a property capable of manual Sec. 8. Effect of attachment of debts, credits and all other
delivery. similar personal property. All persons having in their possession
- If you look at Sec 7, the manner of attachment will depend or under their control any credits or other similar personal property
on the nature of property to be attached. belonging to the party against whom attachment is issued, or owing
- As far the sheriff is concerned, if there are several kinds of any debts to him, at the time of service upon them of the copy of the
properties owned by the defendant, and if he has to satisfy writ of attachment and notice as provided in the last preceding
the claim of the plaintiff. So practically all the properties will section, shall be liable to the applicant for the amount of such credits,
be attached. But the manner will depend on what nature/ kind debts or other similar personal property, until the attachment is
of property will be attached. He can resort to every manner discharged, or any judgment recovered by him is satisfied, unless
to satisfy the claim. If come to think of it, the job of the sheriff such property is delivered or transferred, or such debts are paid, to
is not that easy. And if you look at most cases, sheriffs are the clerk, sheriff, or other proper officer of the court issuing the
held administratively liable. attachment.

The effect of garnishment is that all persons having in their possession


or under their control any credits or other similar personal property

26
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

belonging to the party against whom attachment is issued, or owing any equipment due to the inundation of its campsite in Ipo, Norzagaray,
debts to him, at the time of service upon them of the copy of the writ of Bulacan, as a direct result of the improper and careless opening by NPC
attachment and notice, shall be liable to the applicant for the amount of of the spillway gates of Angat Dam at the height of typhoon "Welming".
such credits, debts or other similar personal property, until the TC found NPC guilty of gross negligence. NPC filed a notice of appeal
attachment is discharged or unless such property is delivered or from that decision but before it could perfect its appeal, ECI moved for
transferred by the third party, the garnishee to an officer of the court. and was granted execution pending appeal upon posting a covering
bond of P200k which it later increased to P1.109M to fully answer for
Will be liable to whom? whatever damages NPC might incur by reason of the premature
Will be liable to the applicant over the attaching of the credit. execution of the lower court's decision. Court granted said motion for
the exceptional writ. Subsequently, Deputy Sheriff Restituto R. Quemada
When will the liability arise? who was assigned to enforce the writ of execution, garnished in favor
It will arise if the garnishee will dispose of the property without the of ECI all amounts due and payable to NPC which were then in
approval of the proper authorities or the court. possession of MERALCO and sufficient to cover the judgment sum of
When do the liability terminate? P1,108,985.31. NPC filed a petition for certiorari with CA. CA granted
the petition and nullified the execution pending appeal of the judgment
What the instances the liability of the garnishee terminate? rendered by the trial court, as well as all issued writs and processes in
It will be terminated when the applicant paid to the judgment debtor connection with the execution. MERALCO sought from the CA a
has been fully satisfied so the liability will no longer exist. clarification and reconsideration of the aforesaid decision on the ground,
The liability will terminate when the attachment has been discharged or among others, that the decision was being used by NPC to compel
any judgment recovered by the applicant is satisfied (la tsn). MERALCO to return the amount of P1,114,545.23 (inclusive of sheriff's
fees) in two checks which it had already entrusted to the deputy sheriff
What are the instances when the liability of the garnishee will on February 23, 1971, who then indorsed and delivered the same to
terminate? ECI. CA held the sheriff, MERALCO and ECI liable to restore to NPC the
The liability of the garnishee will terminate: amount due to NPC which MERALCO had earlier turned over to the
1. when the judgment debtor posted a counterbond for the cash deposit sheriff for payment to ECI.
2. when the order was improperly ordered for attachment or irregularly
issued and there is no ground for garnishment, and the bond filed is ISSUE: WON the garnishee (MERALCO) is liable when the notice of
ineffective or insufficient garnishment was lifted for having been proved futile
3. when property is exempt from execution hence exempt from
attachment No. We are sanctioning in this particular instance the execution pending
4. the judgment is rendered against the attaching or garnishing creditor. appeal of actual but not consequential and exemplary damages and
attorney's fees which must necessarily depend on the final resolution of
A garnishment order shall be lifted if it is established that: the main cases, the direct consequence would be to authorize NPC to
1. the party whose accounts have been garnished has posted a proceed against the covering bond filed by ECI but only to the extent of
counterbond or has made the requisite cash deposit; the difference between the amount finally adjudicated by this Court in
2. the order was improperly or irregularly issued as where there is the main cases [P724,985.31] and the amount originally decreed by the
no ground for garnishment or the affidavit and /or bond filed therefor trial court relating to the consequential and exemplary damages and
are defective or insufficient; attorney's fees
3. the property attached is exempt from execution, hence exempt from [P1,108.985.31]. In other words, ECIs bond is held answerable to NPC
preliminary attachment; or for P384,000. But while partial restitution is warranted in favor of NPC,
4. the judgment is rendered against the attaching or garnishing we find that the CA erred in not absolving MERALCO, the garnishee,
creditor. (la tsn) from its obligations to NPC with respect to the payment to ECI of
P1,114,543.23, thus in effect subjecting MERALCO to double liability.
So only those instances? If not those instances occur then the liability MERALCO should not have been faulted for its prompt obedience to a
will not terminate? writ of garnishment. Unless there are compelling reasons such as: a
It will also terminate when the garnishee will turnover the properties to defect on the face of the writ or actual knowledge on the part of the
the proper officer of the court. Then, the garnishee will not be liable. garnishee of lack of entitlement on the part of the garnisher, it is not
incumbent upon the garnishee to inquire or to judge for itself whether
In the case of Engineering construction, when was the liability or not the order for the advance execution of a judgment is valid.
of the garnishee terminated? Garnishment is considered as a specie of attachment for reaching credits
belonging to the judgment debtor and owing to him from a stranger to
ENGINEERING vs. NPC G.R. No. L-34589 June 29, 1988 the litigation. Under the above-cited rule, the garnishee [the third
person] is obliged to deliver the credits, etc. to the proper officer issuing
MERALCO should not have been faulted for its prompt obedience to a the writ and "the law exempts from liability the person having in his
writ of garnishment. Unless there are compelling reasons such as: a possession or under his control any credits or other personal property
defect on the face of the writ or actual knowledge on the part of the be, longing to the defendant, ..., if such property be delivered or
garnishee of lack of entitlement on the part of the garnisher, it is not transferred, ..., to the clerk, sheriff, or other officer of the court in which
incumbent upon the garnishee to inquire or to judge for itself whether the action is pending." Applying the foregoing to the case at bar,
or not the order for the advance execution of a judgment is valid. MERALCO, as garnishee, after having been judicially compelled to pay
the amount of the judgment represented by funds in its possession
MERALCO, as garnishee, after having been judicially compelled to pay belonging to the judgment debtor or NPC, should be released from all
the amount of the judgment represented by funds in its possession responsibilities over such amount after delivery thereof to the sheriff.
belonging to the judgment debtor or NPC, should be released from all The reason for the rule is self-evident. To expose garnishees to risks for
responsibilities over such amount after delivery thereof to the sheriff. obeying court orders and processes would only undermine the
The reason for the rule is self-evident. To expose garnishees to risks for administration of justice. (marry suan digest)
obeying court orders and processes would only undermine the
administration of justice. In case of the garnishee, we have here the order of the court to revert
Engineering Construction vs. NPC (1988) (maki notes) the property to the sheriff.

29 Aug ’68: Engineering Construction Inc. filed a complaint for damages What was the property here?
against NPC, alleging that it suffered damages to its facilities and

27
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

The property here is the credits of the Engineering construction --- of delivering its depositor's funds pursuant to a court order which was
NPC by Meralco. When NPC was in debt, Engineering here garnished the merely in the exercise of its power of control over such funds.
credits of NPC in possession of Meralco. Meralco complied with the order The order directing the bank to deliver the amount to the sheriff was
of the court. distinct and separate from the order directing the sheriff to encash the
said check. The bank had no choice but to comply with the order
What did Meralco do? demanding delivery of the garnished amount in check. The very tenor
Meralco delivered the check payment to the sheriff by the order of the of the order called for immediate compliance therewith. On the other
court. So, is saying in this case that it should not be liable to the hand, the bank cannot be held liable for the subsequent encashment of
Engineering construction because it is just complying with the decision the check as this was upon order of the court in the exercise of its power
of the court ordering it to deliver the credits of NPC. of control over the funds placed in custodia legis by virtue of the
garnishment. (maki notes)
How did the sheriff make the levy?
The sheriff was able to claim checks from Meralco who actually indorses 15 Jan '70: In an action for recovery of unpaid tobacco deliveries, an
the check to ECI. Order was issued, ordering Phil. Virginia Tobacco Administration (PVTA)
to pay jointly and severally Badoc Planters Inc within 48 hrs the
How did the sheriff obtain the checks? How did he make the levy? aggregate amount of P206,916.76 with legal interests. 26 Jan: Badoc
The sheriff sent a letter to Meralco saying that the debts/credits in favor filed an Urgent Ex-Parte Motion for a writ of execution of said partial
of NPC is under garnishment. judgment which was granted. Branch Clerk of Court issued a Writ of
Execution addressed to Special Sheriff Faustino Rigor, who then issued
So what happened? a Notice of Garnishment addressed to the General Manager and/or
Meralco issued the checks and delivered the same to the sheriff which Cashier of RCBC, requesting a reply within 5 days to said garnishment
he turned over to ECI the payment made by Meralco. as to any property which the PVTA might have in the possession or
control of RCBC or of any debts owing by RCBC to PVTA. Upon receipt
Was the attachment proper? Are you sure? of such Notice, RCBC notified PVTA thereof to enable the PVTA to take
Yes it is proper. the necessary steps for the protection of its own interest. 27 Jan: Judge
issued an Order granting the Ex-Parte Motion field by Badoc and
What happened to the liability of Meralco? directing RCBC "to deliver in check the amount garnished to Sheriff Rigor
Meralco complied with the processes. The SC said it should not be and Sheriff Rigor in turn is ordered to cash the check and deliver the
faulted for its prompt payment. Unless there are reasons such that there amount to the Badoc’s representative and/or counsel.” RCBC delivered
is defect in the writ or there is actual knowledge on the part of the to Sheriff Rigor a certified check of P206,916.76. PVTA filed MR.
garnishee that not entitled to the garnishment. The SC said Meralco Granted. Set aside the Orders of Execution and of Payment and the Writ
cannot be faulted for acting promptly on the request at the time of the of Execution and ordering RCBC and Badoc "to restore, jointly and
sheriff. severally, the account of PVTA with the said bank in the same condition
and state it was before the issuance of the aforesaid Orders by
What happened to the checks? reimbursing the PVTA with interests at the legal rate from January 27,
The checks were encashed in favor ECI. 1970 until fully paid to the account of the PVTA This is without prejudice
to the right of plaintiff to move for the execution of the partial judgment
Take Note: this is an execution proceeding. This is not exactly an pending appeal in case the motion for reconsideration is denied and
attachment. What was executed here by the sheriff was the judgment appeal is taken from the said partial judgment. This became final. PVTA’s
itself. But this is being cited in the rule of attachment. Because when contention: Manner in which the bank complied with the Sheriff’s Notice
you execute or your make a levy us the same procedure as well as you of Garnishment indicated breach of trust and dereliction of duty on the
make a levy on the attachment. So there is that similarity of procedure. part of the bank as custodian of government funds. Urged that the
In fact the rules on execution will refer to the rule on attachment on premature delivery of the garnished amount by RCBC to the special
how levy should be made by the sheriff. It is the same. When you have sheriff even in the absence of a demand to deliver made by the latter,
a judgment already and when you execute it and you can reach the before the expiration of the 5-day period given to reply to the Notice of
credits of the debtor, then you apply the rule on garnishment, the Garnishment, without any reply having been given thereto nor any prior
procedure under Rule 57. So this is the procedure on execution subject authorization from its depositor, PVTA and even if the court's order of
in the case of Engineering Construction (ECI). But still garnishment was January 27, 1970 did not require the bank to immediately deliver the
resorted to. And the rule on garnishment under Rule 57 (inaudbible). garnished amount constitutes such lack of prudence as to make it
answerable jointly and severally with the plaintiff for the wrongful
What is the effect when the garnished credits are turned over to the release of the money from the deposit of the PVTA.
sheriff?
When credits are turned over to the sheriff, the credits become in
custodial legis. Meaning, it is similar to what was held in the case of ISSUE: WON the bank should be held liable with the judgment creditor
Engineering vs NPC, that such turnovering releasing the garnishee from for reimbursement of the garnished funds, when it merely complied with
responsibility. the court ordered and delivered the garnished amount to the sheriff,
who in turn delivered it to the judgment creditor, but subsequently the
What happens if the sheriff encash the check and turn over the order of the court directing payment was set aside
check to the plaintiff, will the bank or garnishee is still be held
liable by the act of the sheriff? No. RCBC did not deliver the amount on the strength solely of a Notice
of Garnishment; rather, the release of the funds was made pursuant to
RCBC vs. CASTRO G.R. No. L-34548 November 29, 1988 the Order of January 27, 1970. While the Notice of Garnishment dated
January 26, 1970 contained no demand of payment as it was a mere
By virtue of the order of garnishment, the same was placed in custodia request for RCBC to withhold any funds of the PVTA then in its
legis and therefore, from that time on, RCBC was holding the funds possession, the Order of January 27, 1970 categorically required the
subject to the orders of the court a quo. That the sheriff, upon delivery delivery in check of the amount garnished to the special sheriff, Faustino
of the check to him by RCBC encashed it and turned over the proceeds Rigor. In the second place, RCBC had already filed a reply to the Notice
thereof to the plaintiff was no longer the concern of RCBC as the of Garnishment stating that it had in its custody funds belonging to the
responsibility over the garnished funds passed to the court. Thus, no PVTA, which, in fact was the basis of Badoc in filing a motion to secure
breach of trust or dereliction of duty can be attributed to RCBC in delivery of the garnished amount to the sheriff. Lastly, RCBC, upon the
receipt of the Notice of Garnishment, duly informed PVTA thereof to

28
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

enable the latter to take the necessary steps for the protection of its As held in the case of RCBC vs Castro when the sheriff encashed the
own interest. There was nothing irregular in the delivery of the funds of check and turns over the proceeds to the plaintiff, therefore, the
PVTA by check to the sheriff, whose custody is equivalent to the custody garnishee is no longer concerned. And its responsibility of the over the
of the court, he being a court officer. The order of the court dated garnished fund is transferred over to the court. Thus, when there is no
January 27, 1970 was composed of two parts, requiring: 1) RCBC to breach of trust or dereliction duty that can be attributed to RCBC when
deliver in check the amount garnished to the designated sheriff and 2) it deposited its, in delivering the deposited funds pursuant a court order.
the sheriff in turn to cash the check and deliver the amount to Badoc’s
representative and/or counsel on record. It must be noted that in What is the effect of a partial execution of judgment, will that
delivering the garnished amount in check to the sheriff, the RCBC did be a ground to discharge the garnishment? Manila Remnant vs.
not thereby make any payment, for the law mandates that delivery of a CA (1994)
check does not produce the effect of payment until it has been cashed.
Moreover, by virtue of the order of garnishment, the same was placed Case involved parcels of land in QC which were owned by Manila
in custodia legis and therefore, from that time on, RCBC was holding the Remnant Co. Inc. and became the subject of its agreement with A.U.
funds subject to the orders of the court a quo. That the sheriff, upon Valencia and Co., Inc., (AUVCI) by virtue of which the latter was to act
delivery of the check to him by RCBC encashed it and turned over the as the MRCI's agent in the development and sale of the property. For a
proceeds thereof to Badoc was no longer the concern of RCBC as the stipulated fee, AUVCI was to convert the lands into a subdivision,
responsibility over the garnished funds passed to the court. Thus, no manage the sale of the lots, execute contracts and issue official receipts
breach of trust or dereliction of duty can be attributed to RCBC in to the lot buyers. Pursuant to the above agreement, AUVCI executed
delivering its depositor's funds pursuant to a court order which was two contracts to sell dated March 3, 1970, covering Lots 1 and 2, Block
merely in the exercise of its power of control over such funds. As stated 17, in favor of Sps. Oscar C. Ventanilla and Carmen Gloria Diaz for the
earlier, the order directing the bank to deliver the amount to the sheriff combined contract price of P66,571. After 10 days and without the
was distinct and separate from the order directing the sheriff to encash knowledge of the Ventanilla couple, Valencia, as president of MRCI,
the said check. The bank had no choice but to comply with the order resold the same parcels to Carlos Crisostomo, one of his sales agents,
demanding delivery of the garnished amount in check. The very tenor without any consideration. Upon orders of Valencia, the monthly
of the order called for immediate compliance therewith. On the other payments of the Ventanillas were remitted to the MRCI as payments of
hand, the bank cannot be held liable for the subsequent encashment of Crisostomo, for which receipts were issued in his name. The receipts
the check as this was upon order of the court in the exercise of its power were kept by Valencia without the knowledge of the Ventanillas and
of control over the funds placed in custodia legis by virtue of the Crisostomo. The Ventanillas continued paying their monthly
garnishment. RCBC's immediate compliance with the lower court's order installments. On May 30, 1973, MRCI informed AUVCI that it was
should not have been met with the harsh penalty of joint and several terminating their agreement because of discrepancies discovered in the
liability. Nor can its liability to reimburse PVTA of the amount delivered latter's collections and remittances. On June 6, 1973, Valencia was
in check be premised upon the subsequent declaration of nullity of the removed by the board of directors of MRCI as its president. On
order of delivery. It may be concluded that the charge of breach of trust November 21, 1978, Sps. Ventanilla, having learned of the supposed
and/or dereliction of duty as well as lack of prudence in effecting the sale of their lots to Crisostomo, filed an action for specific performance,
immediate payment of the garnished amount is totally unfounded. Upon annulment of deeds, and damages against MRCI, AUVCI and Carlos
receipt of the Notice of Garnishment, RCBC duly informed PVTA thereof Crisostomo. TC declared the contracts to sell in favor of Sps. Ventanilla
to enable the latter to take the necessary steps for its protection. valid, and annulled the contract to sell in favor of Crisostomo. Ordered
However, right on the very next day after its receipt of such notice, RCBC MRCI to executed an absolute DOS in favor of Ventanillas. 25 Jan ’91:
was already served with the Order requiring delivery of the garnished Sps. Ventanilla filed a motion for issuance of writ of execution. Writ was
amount. Confronted as it was with a mandatory directive, disobedience issued on 3 May ’91 and served upon MRCI on 9 May ’91. MRCI alleged
to which exposed it to a contempt order, it had no choice but to comply. that the subject properties could not be delivered to the Ventanillas
because they had already been sold to Samuel Marquez on February 7,
ISSUE: WON PVTA funds are public funds exempt from garnishment 1990, while their petition was pending in this Court. Nevertheless, MRCI
offered to reimburse the amount paid by the respondents, including
No. Republic Act No. 2265 created the PVTA as an ordinary corporation legal interest plus the aforestated damages. MRCI also prayed that its
with all the attributes of a corporate entity subject to the provisions of tender of payment be accepted and all garnishments on their accounts
the Corporation Law. Hence, it possesses the power "to sue and be lifted. Ventanilla’s contention: Opposed the reimbursement offered by
sued" and "to acquire and hold such assets and incur such liabilities MRCI in lieu of the execution of the absolute deed of sale. Contended
resulting directly from operations authorized by the that the alleged sale to Samuel Marquez was void, fraudulent, and in
provisions of this Act or as essential to the proper conduct of such contempt of court and that no claim of ownership over the properties in
operations.” It is clear that PVTA has been endowed with a personality question had ever been made by Marquez. MRCI filed manifestation and
distinct and separate from the government which owns and controls it. MR, praying it be ordered to reimburse Sps. Ventanilla the amount of
Accordingly, this Court has heretofore declared that the funds of the P263,074.10 and the garnishment of its bank deposit be lifted. Denied.
PVTA can be garnished since "funds of public corporation which can sue Filed second manifestation and MR but denied again. MRCI’s
and be sued were not exempt from garnishment" contention: TC may not enforce it garnishment order after the monetary
judgment for damages had already been satisfied and the amount for
ISSUE: WON RCBC was bound to inquire into the legality and propriety reimbursement had already been deposited with the sheriff.
of the Writ of Execution and Notice of Garnishment issued against the Garnishment as a remedy is intended to secure the payment of a
funds of PVTA judgment debt when a well-founded belief exists that the erring party
will abscond or deliberately render the execution of the judgment
No. It had neither the personality nor the interest to assail or controvert nugatory. As there is no such situation in this case, there is no need for
the orders of respondent Judge. It had no choice but to obey the same a garnishment order. Also that TC gravely abused its discretion when it
inasmuch as it had no standing at all to impugn the validity of the partial arbitrarily fixed the amount of the cash bond for the lifting of the
judgment rendered in favor of Badoc or of the processes issued in garnishment order at P500k. Questions the propriety of this order on the
execution of such judgment. RCBC cannot therefore be compelled to ground that it has already partially complied with the judgment and that
make restitution solidarily with Badoc. Badoc alone was responsible for it has always expressed its willingness to reimburse the amount paid by
the issuance of the Writ of Execution and Order of Payment and so, the respondents. It says that there is no need for a garnishment order
Badoc alone should bear the consequences of a subsequent annulment because it is willing to reimburse the Ventanillas in lieu of execution of
of such court orders; hence, only Badoc can be ordered to restore the the absolute deed of sale. Ventanilla’s contention: Validity of the sale to
account of the PVTA. (marry suan digest) them had already been established even while the previous petition was
still pending resolution. That petition only questioned the solidary

29
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

liability of MRCI to the Ventanillas. The portion of the decision ordering to Sps. Ramiro in compliance with their compromise agreement. Sps.
the MRCI to execute an absolute deed of sale in favor of the Ventanillas Ramiro opposed the same. MTC denied Sps. Ramiro’s motion for
became final and executory when the petitioner failed to appeal it to the execution. So, filed petition for mandamus. Sps. Abinujar moved to
Supreme Court. There was no need then for an order enjoining the dismiss the petition. RTC denied MTD and issued resolution,
petitioner from re-selling the property in litigation. commanding the MTC to issue a writ of execution of the decision
approving the compromise agreement. MTC issued an order, directing
ISSUE: WON partial execution by MRCI is a ground for the discharge of the issuance of a writ of execution to enforce the compromise
the writ of attachment agreement entered into by the parties. 11 Apr ’91: A "Sheriffs' Notice to
Voluntarily Vacate the Premises" was served on Sps. Abinujar. Sps.
No. While MRCI have readily complied with the order of the TC for the Abinujar’s contention: Assailed the validity of the issuance by the Deputy
payment of damages to the Ventanillas, they have, however, refused to Sheriff of the notice to voluntarily vacate the premises by way of
execute the absolute deed of sale. It was for the purpose of ensuring enforcing the decision approving the compromise agreement.
their compliance with this portion of the judgment that the trial court Maintained that their obligation is monetary in nature and the applicable
issued the garnishment order which by its term could be lifted only upon rule should have been Section 15, Rule 39 and not Section 13, Rule 39
the filling of a cash bond of P500k. The alternative judgment of of the Revised Rules of Court.
reimbursement is applicable only if the conveyance of the lots is not
possible, but it has not been shown that there is an obstacle to such ISSUE: WON a Compromise Agreement may discharge a writ of
conveyance. As the main obligation of MRCI is to execute the absolute execution
deed of sale in favor of the Ventanillas, its unjustified refusal to do so
warranted the issuance of the garnishment order. Garnishment is a No. A compromise agreement is a contract between the parties, which
species of attachment for reaching credits belonging to the judgment if not contrary to law, morals or public policy, is valid and enforceable
debtor and owing to him from a stranger to the litigation. It is an between them. There are two kinds of compromise agreements, the
attachment by means of which the plaintiff seeks to subject to his claim judicial, which puts an end to a pending litigation, and the extrajudicial,
property of the defendant in the hands of a third person or money owed which is to avoid a litigation. As a contract, a compromise agreement is
by such third person or garnishee to the defendant. The rules on perfected by mutual consent. A judicial compromise, however, while
attachment also apply to garnishment proceedings. A garnishment order binding between the parties upon its execution, is not executory until it
shall be lifted if it established that: (a) the party whose accounts have is approved by the court and reduced to a judgment. The non-fulfillment
been garnished has posted a counterbond or has made the requisite of the terms and conditions of a compromise agreement approved by
cash deposit; (b) the order was improperly or irregularly issued as where the court justifies execution thereof and the issuance of the writ for said
there is no ground for garnishment or the affidavit and/or bond filed purpose is the court's ministerial duty enforceable by mandamus. When
therefor are defective or insufficient; (c) the property attached is exempt the parties entered into a compromise agreement, the original action for
from execution, hence exempt from preliminary attachment, or (d) the ejectment was set aside and the action was changed to a monetary
judgment is rendered against the attaching or garnishing creditor. obligation. A perusal of the compromise agreement signed by the parties
Partial execution of the judgment is not included in the above and approved by the inferior court merely provided that in case Sps.
enumeration of the legal grounds for the discharge of a garnishment Abinujar failed to pay 3 monthly installments, Sps. Ramiro would be
order. Neither does MRCI's willingness to reimburse render the entitled to a writ of execution, without specifying what the subject of
garnishment order unnecessary. As for the counterbond, the lower court execution would be. Said agreement did not state that Sps. Abinujar
did not err when it fixed the same at P500k. As correctly pointed out by would be evicted from the premises subject of the suit in case of any
the respondent court, that amount corresponds to the current fair default in complying with their obligation thereunder. This was the result
market value of the property in litigation and was a reasonable basis for of the careless drafting thereof for which only Sps. Ramiro were to be
determining the amount of the counterbond. (marry suan digest) blamed. A judgment is the foundation of a writ of execution which draws
its vitality therefrom. An officer issuing a writ of execution is required to
Partial execution of the judgment is not included in the above look to the judgment for his immediate authority. An execution must
enumeration of the legal grounds for the discharge of a garnishment conform to and be warranted by the judgment on which it was issued.
order. Neither does the petitioner's willingness to reimburse render the There should not be a substantial variance between the judgment and
garnishment order unnecessary. (2015 tsn) the writ of execution. Thus, an execution is fatally defective if the
judgment was for a sum of money and the writ of execution was for the
Citing the case of Manila Remnant vs CA a partial execution of judgment sale of mortgaged property. As Abinujars' obligation under the
is not included in the four grounds to discharge the writ of attachment. compromise agreement as approved by the court was monetary in
Meaning, when there is a partial execution, the writ of attachment is not nature, Sps. Ramiro can avail only of the writ of execution provided in
discharge if it doesn’t fall under the four grounds. Section 15, Rule 39 of the Revised Rules of Court, and not that provided
Why is partial execution of judgment not included? in Section 13. (marry suan digest)
Under Section 8, it says that when the judgment recovered is satisfied.
Therefore, a partial execution is not full satisfaction. It will not be a A compromise has upon the parties the effect and authority of res
ground for discharge of the writ of attachment. judicata; but there shall be no execution except in compliance with a
judicial compromise.
How about that there is a compromise agreement will that The non-fulfillment of the terms and conditions of a compromise
dissolve the garnishment? Will that terminate the liability of agreement approved by the court justifies execution thereof and the
the garnishee? Abinujar vs. CA (1995) issuance of the writ for said purpose is the court's ministerial duty
enforceable by mandamus.(2015 tsn)
10 Oct ’87: Sps. Abinujar and Milagros Lana executed a DOS with Right
to Repurchase in favor of Sps Ramiro, involving a residential house. Due According to the case of Abinujar vs. CA, it will not lift a writ of
to serious financial and business reverses, Sps. Abinjuar were not able attachment (WOA) or garnishment. However, the WOA comes into play
to redeem the property within 4 months as agreed upon. 24 Oct ’89: when the garnishee does not fulfill the terms and conditions of the
Sps. Ramiro filed a complaint for ejectment. 27 Dec: Parties entered into compromise agreement.
a compromise agreement. MTC approved the same. The agreement
stated that failure on the part of Are you sure? Are you saying that the garnishee is part of the
Sps. Abinujar to pay 3 consecutive payments, Sps. Ramiro will be compromise agreement? Remember, the garnishee is a third
entitled to a writ of execution. 15 Apr ’90: Sps. Ramiro filed motion for person/party. Are you saying that the garnishee becomes a
execution. Sps. Abinujar filed motion asking that the check payments party to a case? Can negotiate for a compromise agreement in
previously deposited by them with the court, be accepted and be given a case?

30
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

In the event there is no performance in the compromise agreement, the attachment against said branch. BPI filed a petition for prohibition.
WOA will come into play. Therefore, the court will execute the garnished Denied. Manager of BPI Zamboanga had no other remedy than to
property. So it is only according to the case of Abinujar, as a contract, deliver to the sheriff of Zamboanga the sum of P31,596.83.
a compromise agreement is perfected by mutual consent of the parties.
ISSUE: WON the garnishment can still be enforced against the garnishee
So the compromise agreement will require the garnishee to bank when a writ of garnishment had already been satisfied by another
sign? branch office other than the one stated in the writ
No. In this case it was the Abinujars that obligated themselves to pay
the Ramiros. Therefore, when the Abinujars failed to fulfill their No. We have seen that after the central office of BPI Manila had
obligation, the garnished property will be executed by the court. deposited with the sheriff of the City of Manila the sum of P32,109.45,
by virtue of a demand made upon it by the latter in compliance with an
When a levy made by a sheriff on a bank at its main office, may it be order of attachment, wherein PNB was and still is the plaintiff and the
paid entities paid out of the branch office. Will that absolve the Olutanga Lumber Company was and still is the defendant, — which sum
garnishee of the liability? So when another branch of the bank of P32,109.45 was the amount of the judgment rendered in civil case in
pays out or delivers or makes the payment to the sheriff when favor of the Olutanga Lumber Company and against BPI, said central
levy was made on another branch, will that absolve the bank of office of BPI notified the provincial sheriff of Zamboanga of said
the liability? PNB vs. OLATUNGA G.R. No. L-30982 January 31, consignation. But the latter, notwithstanding the attachment of said
1930 amount by the sheriff of Manila, tried to collect from the branch office
The general rule is that, where attached properties belonging to the in Zamboanga of BPI the amount of said judgment. Under the
principal debtor are taken out of the hands of a person by legal process, circumstances, the Zamboanga branch had to resort to this court for a
after he had been notified of the order of attachment, said person remedy to prevent execution of said judgment. This court denied the
cannot be made to answer for the properties in a proceeding to carry remedy prayed for, and upon receipt of notice of said denial the
out said attachment. provincial sheriff of Zamboanga insisted in collecting from the
Zamboanga branch of BPI the amount of said judgment, which said bank
When a person has funds in his possession belonging to a debtor, and had to pay. The general rule is that, where attached properties
said funds are attached by a creditor of the latter, said person is relieved belonging to the principal debtor are taken out of the hands of a person
from all responsibility to said creditor if he is judicially compelled to by legal process, after he had been notified of the order of attachment,
deliver said funds to the aforesaid debtor. (maki notes) said person cannot be made to answer for the properties in a proceeding
to carry out said attachment. In the present case, the fact that the funds
In a civil case, BPI was ordered by the court to pay to Olutanga Lumber attached in the possession of BPI, belonging to the Olutanga Lumber
Co. and PNB a sum of P31,242.11. Writ of execution was issued, which Company, had been deposited with the sheriff of Manila by order of said
was complied with by the sheriff of Zamboanga by presenting it to the officer, does not change the juridical situation of said funds as attached
manager of the branch of BPI Zamboanga, on January 10, 1928, but in the possession of BPI, and, according to the above-quoted rule, the
without levying execution on any property belonging to the execution aforesaid BPI, having been judicially compelled to pay the amount of the
debtor. On the same date, the sheriff addressed to the central office of judgment represented by said funds to the Olutanga Lumber
said bank at Manila the following telegram: “Execution Bank Philippine Company, after having employed all the legal means to avoid it, is
Islands versus Olutanga Lumber Company served today manager released from all responsibility to the PNB in whose favor the writ of
Zamboanga branch. Please authorize him pay amount due defendant attachment was issued. When a person has funds in his possession
Olutanga Lumber plus sheriff fees otherwise levy will be made on your belonging to a debtor, and said funds are attached by a creditor of the
Zamboaga office.” On same date, before receiving the foregoing latter, said person is relieved from all responsibility to said creditor if he
telegram, the central office of BPI Manila was notified by the sheriff of is judicially compelled to deliver said funds to the aforesaid debtor.
Manila that all the credits and debts contracted by it with the Olutanga Sheriff of the City of Manila is hereby ordered to return to said bank the
Lumber Company, amounting to P16,656.30 plus interest, were levied amount deposited by virtue of the writ of attachment, after deducting
upon in the name of PNB by virtue of a writ of attachment issued in civil his legal fees, with costs against the appellant. (marry suan digest)
case. 11 Jan: BPI, in reply to said notice, addressed a letter to the sheriff
of Manila, notifying the latter that, pursuant to his notice of attachment, City the case of PNB vs Olatunga, in the present case the fact that the
it retained at the disposal of said sheriff the aforesaid sum of funds attached to the possession of BPI belonging to Olatunga have
P16,656.30, plus interest at the rate of 12% per annum from April 19, been deposited to the sheriff of Manila by order of the said officer does
1922 until such date as may be designated. On same date, sheriff of not change the judicial situation of the said funds as attached in the
Manila sent a letter to BPI at Manila, requiring the latter to deliver to possession of BPI. According to that rule, says the SC, BPI having been
him the sum of P32,109,45, theretofore attached, belonging to the judicially required to pay the amount from the judgment represented
Olutanga Lumber Company. BPI notified the provincial sheriff of from the same funds after having all legal means to avoid it, is released
Zamboanga by telegram, on January 12, 1928, that the amount of the from all released all responsibility to PNB in whose favor the WOA was
judgment in favor of the Olutanga Lumber Company against said bank issued.
had been delivered to the sheriff of the City of Manila, and that any Is there discharge of liability?
question on that subject should be taken up with him. Provincial sheriff Yes, there was discharge of liability because there was sufficient
of Zamboanga sent a communication to the manager of BPI in said city, compliance.
notifying him that all the money he had in his possession or control,
belonging to the BPI, was levied upon by virtue of an order of execution. What is the implication of garnishment?
14 Jan: Sheriff of Manila sent a telegram to the sheriff of Zamboanga, In cases of garnishment, the funds or property served to the garnishee
telling him that the amount of the judgment against BPI and in favor of will answer or deliver to the court or sheriff. In case judgment is entered
the Olutanga Lumber Company, which had been attached by virtue of in favor of the attaching creditor.
two writs of attachment issued by PNB and the Standard Oil company
of New York against the Olutanga Lumber Company, had been deposited It implies that there is a third person who will be liable to the creditor.
with him by said BPI. Notwithstanding the fact that the provincial sheriff The garnishee (the third person) is obliged to deliver the credits to the
of Zamboanga had been duly informed of the levy made by the sheriff proper officer issuing the writ and the law exempts from liability the
of Manila upon the funds of the Olutanga Lumber Company in person having in his possession or under his control any credits or other
possession of BPI, and of the delivery of said funds to said judicial officer personal property belonging to the defendant if such property be
of the City of Manila, he attempted to collect from the branch of BPI delivered or transferred to the clerk, sheriff, or other officer of the court
Zamboanga the amount of the judgment in favor of the Olutanga in which the action is pending. (2015 tsn)
Lumber Company, threatening to levy, and in fact did levy, an

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Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

When will be the delivery made? What does the garnishment create? What relationship is created by
The delivery should be made when the notice of garnishment is garnishment with respect to third party?
delivered to the garnishee. The garnishment with respect to the third party it creates a forced
subrogation. Meaning, the garnishee even not a party to the case, they
Are you sure? So is it by way of attachment, not by way of are forced by way of subrogated to give the credits to the sheriff. There
execution, are you going to deliver? are forced intervenors.
If it is by way of attachment the party whose property is attached, the
sheriff will require him to deliver to him or some personal property There is some sort of subrogation such that the creditor’s liability will be
capable of manual delivery, it should be delivered to the sheriff. If it is transferred to the third person. In view of this forced or compulsory
not capable of delivery, it is enough that the sheriff will have constructive subrogation, he is considered to be a forced intervenor. As a forced
control of the property. intervenor, he has no choice but to become a party to the case even if
his role is simply to satisfy the judgment in the case.
What properties may be subject to garnishment? So the garnishee here is a forced party to the case. In what capacity?
Sec. 8. Effect of attachment of debts, credits and all other similar As a third person.
personal property. All persons having in their possession or under
their control any credits or other similar personal property belonging What do you mean third person? How will you become part of the case?
to the party against whom attachment is issued, or owing any debts There are impleaded, forced intervenor, made to answer either to the
to him, at the time of service upon them of the copy of the writ of judgement (inaubile).
attachment and notice as provided in the last preceding section, shall
be liable to the applicant for the amount of such credits, debts or They become intervenors?
other similar personal property, until the attachment is discharged, Forced intervenors, but they are not really party to the main case.
or any judgment recovered by him is satisfied, unless such property
is delivered or transferred, or such debts are paid, to the clerk, So what is now the role of the garnishee in so far as the case is
sheriff, or other proper officer of the court issuing the attachment. concerned?
Under Section 8, debts, credits and other similar personal property of The role of the garnishee is to answer for the in case the JD is liable to
the person. the liable to JC. Such JD has credits held by garnishee, the garnishee
will answer for that judgment in favor of the attaching creditor.
When you speak of garnishment, you do not speak of properties capable
of manual delivery. You do not speak of real properties. You only focus When will the liability attach?
on debts, credits and interest, incorporeal properties incapable of The liability will attach if there is already judgment.
manual delivery. I do not want to hear you telling me properties capable
of manual delivery, that cannot be. This is not part of the nature of When there is judgment?
garnishment. You do not resort to garnishment when the property is When the court orders the attachment is discharged. Or any judgment
capable of manual delivery. You do not attach such property through of the attaching creditor has been rendered. Hence, credits held by the
garnishment. You get that basic concept right. If it is capable of manual garnishee will answer for that.
delivery, you do not garnish it. The sheriff will just seize it. Attachment
is done by physical seizure of the property. There is no garnishment to In Perla Compania de Seguro vs Ramolete, what relationship is
speak of. You better get that right. It is only when the property is created by garnishment?
incorporeal, incapable of manual delivery such as credits, debts, interest. In this case, the relationship becomes a virtual party or a forced
Only this type of property can be garnished, can be subject of intervenor.
garnishment. You have had those cases assigned to you, you should
have gotten that right already. Kayong tatlong nagrecite puro manual Tec Bi vs. IAC (1917)
delivery namemention nyo. Sinong jindi iinit and ulo nyan? All cases
assigned to you, anong mga example ng garnishment dyan? Bank This is an action to recover from Chartered Bank of India, Australia and
deposits, credits yun utang ng Meralco, deposit with PNB, RCBC. Hindi China, the sum of P11,572.96, the amount of a judgment recovered by
nyo napansin, these are all capable of manual delivery. Coz we are Tec Bi against La Urania Cigar Factory, and for which Tec Bi seeks to
talking here of debts and credits. hold the bank liable by virtue of an attempted levy of attachment upon
That is why garnishment involves a third party. When you speak of certain leaf tobacco in the possession of the bank under a pledge
property capable of manual delivery, the sheriff has to go to the house executed by the said La Urania Cigar Factory. The Tobacco being
of the debtor and seized this property capable of manual delivery. Actual pledged for an amount largely in excess of its value, the bank refused
seizure. Hilaan ng mga appliances, sasakyan, kung anu-ano pang to deliver it to the sheriff, and the pledge having become due, sold the
makita nya sa bahay ng debtor. Very clear, no third party involved. But tobacco and applied the proceeds on account of the indebtedness,
if it is credits, debts, then there is a third party involved. The sheriff will previous to the time when Tec Bi finally secured judgment against La
not just go barge into the bank and seize the actual deposit of the Urania Cigar Factory and issued execution thereon. It appears that Tec
debtor. That is not how it is done. That is why there is this process of Bi sold to La Urania a quantity of leaf tobacco. La Urania pledged to the
garnishment. You do not do actual seizure here. bank as security for the payment of an indebtedness of P25k the bales
In the Tayabas case, you don’t do auction sale of credits. What you do, of tobacco. The bales of tobacco were stored in the bodega of Sprungli
you do garnishment. And garnishment necessarily implies a third party, & Co. 1 Feb ’13: The bank demanded from Sprungli the keys to the said
the one holding the credit. Or one who has debt owing to the debtor or bodega, and discovered that there were less than 436 bales of tobacco,
to the defendant. That is the third party involved in garnishment. And which was what was stated in the description. Bank did not know
that third party will now be served the notice of attachment through whether La Urania misrepresented the quantity of tobacco. However,
garnishment. So kapag bangko yan, ang bangko makakatangap ng found that La Urania, in collusion with Sprungli, disposed said tobacco
notice of levy/garnishment. and such was made without bank’s consent. That the bank had been in
absolute and exclusive possession of the tobacco until when it was sold
What will the bank now do once it receives a notice of levy from the under and by virtue of the document of pledge by the bank for the sum
sheriff? of P12,722.36 which was applied on account of said loan, the entire
The bank will comply with the notice of levy as stated in the notice. The amount of which was then past due and unpaid, leaving a large balance
bank will deposit it to the sheriff. thereof still due and unpaid. 22 Apr: Tec Bi filed a complaint against La
Urania, claiming the payment of the sum of P11,572.96 as the balance
of the unpaid purchase price of the tobacco. It asked for and obtained

32
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

from CFI an attachment against the said bales of tobacco, but inasmuch Even though the date of the bank's pledge is not evidenced in a public
as the bodega was locked and the sheriff was informed that the keys document, still the delivery of the tobacco into the possession of the
were in bank defeated the right of Tec Bi to a preference. First. While the
the possession of the bank, he demanded the delivery thereof from the contract of pledge and the delivery of the tobacco undoubtedly created
latter, which demand was refused by the bank. Sheriff notified it that a valid pledge as between the pledgor and the pledgee, so that the
the bales of tobacco identified in the complaint were attached subject to pledgor himself could not disturb the possession of the pledgee; still,
the results of the complaint filed by Tec Bi against La Urania. 8 Mar: The with relation to third person, the possession of the bank must be deemed
bank confirmed the fact that it had in its possession the tobacco as to be that of the purchaser of the tobacco, since under the provisions of
security for the payment of a loan and that it intended to sell the same. Art. 1865, the execution of the pledge could not affect the right of third
CFI rendered judgment against La Urania. And so, sheriff attempted to person. As to third persons, the pledge and the pledged property must
execute the judgment upon the bales of tobacco attached and in the be treated as if the pledge never had been executed. Second. Even if it
possession of the bank, but was unable to do so due to the statement were true that Tec Bi had lost his statutory right of preference as a result
of the agent of said bank, that the tobacco had been sold and that the of the execution of the pledge and the delivery of possession to the
proceeds of the sale had been applied upon the payment of the amount bank, still he had a perfect right to levy an attachment on the tobacco
due to from La Urania. Tec Bi’s contention: His right as a preferred pending his action to recover the amount of the pledgor's indebtedness,
creditor for the amount of the purchase price of the tobacco was not unless the execution of the pledge had the effect of depriving him of
prejudiced and could not be prejudiced by the pledge of the tobacco to that right. But it is very clear that under the express provisions of Art.
the bank, since the date of the contract of pledge is not evidenced by a 1865, no such effect could be given the pledge. The possession of the
public document; and, further, that he had a perfect right to attach the bank was not absolute and exclusive in the sense that it could in any
tobacco in the course of judicial proceedings for the recovery of his claim wise affect the right of another credit of the common debtor, a "third
against the pledgor, for the purchase price of the tobacco pledged to person" with relation to the pledge contract, to levy an attachment upon
the bank. Bank’s contention: The right of preference in favor of the bank, the tobacco. We must conclude therefore that the stipulation as to the
to which the tobacco had been pledged by the common debtor, excluded truth of the allegation of the answer that the possession of the tobacco
the preference in favor of Tec Bi; and that Tec Bi could not rely on the by the bank was "absolute and exclusive" was intended only to mean
provisions of Article 1865 of CC, because he was not a "third person" in that it was "absolute and exclusive" so far as the pledgor himself was
the sense in which these words are used in that article. concerned; or else that the stipulation as to the truth of the allegations
of the answer did not include this averment as to the "absolute and
ISSUE: What is the remedy of the judgment creditor against the exclusive" possession of the tobacco by the bank it being merely a
garnishee if the judgment debt remains unsatisfied? conclusion of law, based upon the other allegations of facts alleged by
the pleader. (marry suan digest)
The remedy of the judgment creditor is to satisfy his claim against the
garnishee in the same case or in a separate case. After execution From 2014/2015 TSN: When you speak of garnishment, necessarily
unsatisfied against the judgment debtor, the judgment creditor may there is a third person and that third person is given a notice that
bring an action at law against a garnishee upon whom notice was served whatever property the defendant may have in his possession, he should
under an attachment issued in the action before judgment; and it is not not return it to the defendant but he is liable to the attachment creditor.
necessary before bringing such action that the garnishee should be That is the essence of garnishment. So, in the case of Perla Compania
required to appear and answer, or that an order should be obtained de Seguro v. Ramolete, the Supreme Court held that in legal
authorizing the action against the garnishee; and no equitable contemplation, garnishment happens when there is a substitution of
circumstance need be shown to justify the suit, which is upon direct creditors. Instead of the garnishee being liable to the defendant as the
liability of the garnishee to the plaintiff in that suit provided for in section original creditor, he is now liable to the attaching creditor as the
544 of the Code of Civil Procedure. As to the contention that Tec Bi substituted creditor. The first person that he is primarily liable to is the
should have been required to have execution issued and returned attaching creditor (the plaintiff) and not the defendant anymore who is
unsatisfied, in whole or in part, before the court below could entertain his original creditor.
this action, it is to be observed, not only that this contention wholly fails
to take into account the ruling in our former opinion, just referred to, Will that make the garnishee an active participant in the suit?
holding that the pledge of the tobacco to the defendant bank was wholly No. The garnishee is limited of the delivery of such credits to answer
ineffective in so far as the rights of third persons were concerned; and the judgment in the case.
that such an objection, even if well founded, should have been advanced
in the trial court, and cannot be raised for the first time on appeal, and What if the garnishee will dispose of the property during the
still less upon a motion for a rehearing after decision has been rendered pendency of the case?
in the CA. Under Art. 1865 of CC, there can be no doubt that had the The garnishee is liable to the attaching creditor of the credits.
date of the contract of pledge been evidenced by a public document, In the case of Tec Bi v. Chartered Bank of India, the Supreme Court held
the preferential right of the pledgee would have been superior to and that the remedy of the judgment creditor is to satisfy his claim against
excluded all and any preferential rights of the vendor. However, the the garnishee in the same case or in a separate case. It would be at the
pledge contract does contain a date and not evidenced by a public choice of the attaching creditor whether to go after the garnishee in the
instrument. It cannot be doubted that with relation to the pledgor and same case or in a separate case.
the pledgee the original vendor of the goods was a third person. The
words are not susceptible of any possible explanation which would TEC BI vs. CHARTERED BANK OF INDIA (1917) The remedy of a
exclude him. He had no privity with either of the parties to the pledge judgment creditor against the garnishee is to either enforce his claim in
contract. He had no knowledge of the execution of that contract. He did the same of separate action.
not participate in it in any way whatever. His rights so far as they When the execution against the judgment debtor was unsatisfied, the
affected the pledged property, were adverse to both pledgor and judgment creditor may bring an action at law against a garnishee upon
pledgee. In a word he was as to them a third person. It necessarily whom notice was served under an attachment issued in the action
follows that since the execution of the pledge in favor of the defendant before judgment; and it is not necessary before bringing such action
bank without the date of execution being evidenced by a public that the garnishee should be required to appear and answer, or that an
instrument could have no effect as again the plaintiff, he was strictly order should be obtained authorizing the action against the garnishee;
within his rights in asserting his claims as a preferred creditor and in and no equitable circumstance need be shown to justify the suit, which
levying an attachment against the tobacco; and the defendant bank is upon direct liability of the garnishee to the plaintiff in that suit provided
could not lawfully assert any right as a pledgee or preferred creditor for in section 544 of the Code of Civil Procedure. (2015 tsn)
which adversely affected the rights of the plaintiff in the premises.

33
Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

What happens when the garnishee will still release to the


debtor or the defendant the deposit despite such garnishment? ISSUE: WON the subject properties were under custodia legis by virtue
In such case, there is release of the JD. However, they are liable to the of the prior annotation of a writ of attachment in Solidbank’s favor at
JD. the time the properties were extrajudicially foreclosed

Why? Yes. Based on the evidence on record, the conclusion is clear that the
They are liable by virtue of the Writ or notice of garnishment, they are disputed real properties were under custodia legis by virtue of a valid
required by the court processes to be deliver such credits. attachment at the time the same were extrajudicially foreclosed by a
third party mortgagee. The rule is well settled that when a writ of
But the delivery will only come when there is judgment. And there is no attachment has been levied on real property or any interest therein
judgment here. belonging to the judgment debtor, the levy thus effected creates a lien
Still, the credits are in custodia legis of the sheriff or the court ordering which nothing can destroy but its dissolution. The foregoing conclusion
such garnishment. has two necessary consequences. Firstly, it follows that the writ of
possession issued by the Malolos court in favor of Golden Star is null and
What happens when the judgment cannot be satisfied because the void ab initio because it interfered with the jurisdiction of a co-ordinate
garnishee has disposed of the property? and co-equal court. While property or money is in custodia legis, the
In that instance, the remedy of the JC is against the garnishee. officer holding it is the mere hand of the court, his possession is the
possession of the court, and to interfere with it is to invade the
How will the JC go after the garnishee? jurisdiction of the court itself. Of equal importance is the fact that the
In the case of Tec Bi vs Chartered Bank of India, the remedy of the JC transactions on which respondent Golden Star's right to a writ of
is to satisfy his claim against the garnishee in the same case or in a possession are based are highly irregular and questionable, to say the
separate case. After execution unsatisfied against the JD, the JC may least, considering the following circumstances: On July 11, 1983, the
bring an action at law against a garnishee upon whom notice was served Sheriff of Bulacan executed a certificate of sale over the two lots in
under an attachment issued in the action before judgment; and it is not question in favor of UCPB. On August 29, 1983, or about a month and
necessary before bringing such action that the garnishee should be a half later, UCPB sold its rights, interests and participation over the
required to appear and answer, or that an order should be obtained lands to Manuel Go. On that very same day, August 29, 1983, Manuel
authorizing the action against the garnishee; and no equitable Go sold the same properties to respondent Golden Star. On October 5,
circumstance need be shown to justify the suit, which is upon direct 1983, NICOS which had a one year right of redemption over the lands
liability of the garnishee to the plaintiff in that suit provided for in section in question executed a Waiver of Right of Redemption in favor of Golden
544 of the Code of Civil Procedure. (LA book) Star. Based on the foregoing facts, we find that NICOS and Golden Star
conspired to defeat Solidbank's lien on the attached properties and to
So he can bring an action against the garnishee? deny the latter its right of redemption. Secondly, it likewise follows that
Yes. In this case, in the same or in a separate case. the petitioner has acquired by operation of law the right of redemption
over the foreclosed properties pursuant to Sec. 6 of Act No. 3135: “In
What happens when a property that was attached by the sheriff all such cases in which an extrajudicial sale is made ... any person having
is subsequently foreclosed? Will that discharge the a lien on the property subsequent to the mortgage ... may redeem the
attachment? Consolidated Bank and Trust Corp. vs. IAC (1987) same at any time within the term of one year from and after the date of
sale.” An attaching creditor may succeed to the incidental rights to which
Consolidated Bank (Solidbank) loaned NICOS sums of money in the total the debtor was entitled by reason of his ownership of the property, as
amount of P4,076,518.64. Subsequently, NICOS failed to pay back the for example, a right to redeem from a prior mortgage. The fact that
loan, prompting Solidbank to filed a collection case. The court issued NICOS executed a waiver of right of redemption in favor of Golden StaR
an order of attachment upon the rights, interests, and participation of on October 5, 1983 is of no moment as by that time it had no more right
which NICOS may have in TCT T-210581 and TCT T-10580. 1 Sep ’82: which it may waive in favor of another. Golden Star’s contention: Even
Pursuant to the writ of attachment issued by the Court and upon posting if the attachment in issue was duly registered and Solidbank has a right
of bond, Sheriff of Manila levied and attached the 2 real properties, of redemption, the certificate of sale of the lands in question was
including the buildings and other improvements thereon. Afterwards, the registered on September 6, 1983. Claimed that the period to redeem
Sheriff sent separate Notices of Levy Upon Realty to the Registrar of therefore lapsed on September 6, 1984 without Solidbank ever
Deeds of Malolos, Bulacan, dated September 1, 1982 requesting him "to exercising any right of redemption. No merit. Well settled is the rule that
make the proper annotation in the books of your office" by virtue of the the pendency of an action tolls the term of the right of redemption.
order of attachment.” 7 Sep: ROD Malolos, Bulacan, pursuant to the It has been held that "under a statute limiting the time for
request of the Manila Sheriff, inscribed and annotated the Notices of redemption ... the right of redemption continues after perfection of an
Levy Upon Real Property at the back of the TCTs. Guards were appeal ... until the decision of the appeal.” In the case at bar, Solidbank
deputized by the Manila Sheriff to secure the premises of the 2 attached commenced the instant action by way of an omnibus motion before the
realties. 11 Jul ’83: The attached properties which had been mortgaged Bulacan Court on November 21, 1983 or barely 2 months after the
by NICOS to UCPB on March 11, 1982, were extrajudicially foreclosed certificate of sale was registered on September 6, 1983, well within the
by the latter. As the highest bidder therein, a certificate of sale was one year period of redemption. (marry suan digest)
issued to it by the Sheriff of Bulacan over the subject realties including
the buildings and improvements thereon. Subsequently, UCPB sold all of In the case of Consolidated Bank v. IAC. The SC held that when an
its rights, interests, and participation over the properties in question to attaching creditor may succeed to the incidental rights to which the
a certain Manuel Go. And Manuel Go sold all the rights he acquired from debtor was entitled by reason of the ownership of the property. So the
UCPB over the same lots on that very same day to Golden Star. 5 Oct: attachment creditor acquire the debtor’s right of redemption over the
NICOS, though fully aware that it still had the right to redeem the attached property.
auctioned properties within the 1-year period of redemption from July
11, 1983, suddenly executed a document entitled "Waiver of Right of So the debtor or defendant can no longer redeem the property because
Redemption" in favor of Golden Star. 15 Sep: Golden Star filed a petition the attaching creditor will now have the right to it as a subsequent
for the issuance of a writ of possession. Granted. In accordance with the owner.
grant, armed men of Golden Star forcibly took over the possession of
the properties in dispute from the guards deputized by the Sheriff of Will an attachment be defeated when the property is under a
Manila to secure the premises. 21 Nov: Solidbank, on the strength of its rehabilitation proceeding? BF Homes, Inc. vs. CA (1990)
prior attachment over the lands in question, filed with the Malolos court
an omnibus motion to annul the writ of possession. Denied.

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Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

19 Jul ’84: BF Homes contracted a loan from Rosalinda Roa and Vicente
Mendoza in the amount of P250k. The obligation was embodied in a P/N What is sequestration?
and secured by 2 post-dated checks issued by BF in favor of the lenders. Sequestration is a provisional remedy akin to attachment or receivership
25 Sep: BF filed a Petition for Rehabilitation and for a Declaration in a where certain companies is taken charge of a receiver so that it can
State of Suspension of Payments under Sec. 5(d) of PD 902-A with a properly distribute such debts, credits and assets.
prayer that upon the filing of the petition and in the meantime, all claims
against it for any and all accounts or indebtedness be suspended, but That is sequestration? Who issues sequestration? When will
allowing BF Homes to continue with its normal operations. It also asked sequestration, in what cases is sequestration available?
for the approval of the proposed rehabilitation plan. Republic vs. Saludares (2000)
17 Oct: Roa and Mendoza filed a complaint against BF Homes for the
recovery of the loan of P250k. Also prayed for the issuance of a writ of 2 Apr ’86: PCGG issued a writ of sequestration, based on the ground
preliminary attachment against properties of BF. 22 Oct: TC issued the that the shares of stocks in LBLC owned by Peter A. Sabido formed part
writ against BF Homes. BF moved for dismissal, which was denied. BF of "illegally acquired wealth." 27 July ’87: The Republic of the Philippines
filed for certiorari. 18 Mar ’85: SEC, finding an urgent need to rehabilitate through the PCGG and the Office of the Solicitor General filed before the
BF, issued an order creating a management committee and suspending Sandiganbayan a complaint for reconveyance, reversion, accounting,
all actions for claims against BF pending before any court, tribunal or restitution and damages against, among others, Peter A. Sabido. 12
board. 6 Jun ’86: CA rendered decision dismissing the complaint and Aug: Sabido filed a motion to lift the writs of sequestration. Granted.
declaring the writ of preliminary attachment null and void. Roa and PCGG filed MR. 11 Feb ’93: Hung Ming Kuk filed a complaint for sum of
Mendoza filed MR. Writ still dissolved. At the same time, however, it money against LBLC, with a prayer for a writ of preliminary attachment.
suspended the proceedings therein until after the management The
committee shall have been impleaded as party defendant. BF Homes’ PCGG was not impleaded by Hung Ming Kuk as party-defendant nor was
contention: Action should be resumed only until after SEC Case No. the sequestration case referred to the RTC's proceedings. Thus, the
002693 shall have been adjudicated on the merits but now agrees with Republic of the Philippines filed a special civil action for certiorari.
Roa and Mendoza, in line with the "assessment" of the Solicitor General, Sandiganbayan denied the MR of PCGG. 17 Feb ’93: TC granted the writ
that the action should be suspended pending the outcome of the of preliminary attachment in favor of Hung Ming Kuk. Thereafter, Hung
rehabilitation proceedings. Ming Kuk filed a motion to declare LBLC in default for failure to file
responsive pleadings. RTC of Lianga issued an order, declaring LBLC in
ISSUE: WON the appointment of a rehabilitation receiver defeat a prior default. Republic’s contention: RTC of Lianga has no jurisdiction over
attachment which was made on record the subject matter of the case inasmuch as the same are under
sequestration by the PCGG. The sequestered assets have been placed
No. Coming now to the writ of preliminary attachment, we find that it under custodia legis of the PCGG pending the final determination by the
must stand despite the suspension of the proceedings in the RTC of Sandiganbayan that said assets are in fact ill-gotten. Hence, the RTC
Quezon City. The writ was issued prior to the creation of the has no jurisdiction to order the attachment of said sequestered
management committee and so should not be regarded as an undue properties. Hung Ming Kuk’s contention: His original complaint was for
advantage of Mendoza and Roa over the other creditors of BF. The a sum of money. It was a demand for payment of a valid obligation
respondent court did not rule on whether the issuance of the writ was owed to him by LBLC. He adds that it would be unfair and unjust to
improper or irregular. It simply said that the writ was no longer proper declare the entire RTC proceedings regarding his claim for sum of money
or necessary at that time because the properties of BF were in the hands null and void. Further claimed that the attachment order of the trial court
of the receiver. We do not think so. The appointment of a rehabilitation was issued after the Sandiganbayan had lifted the writ of sequestration
receiver who took control and custody of BF has not necessarily secured against LBLC.
the claims of Roa and Mendoza. In the event that the receivership is
terminated with such claims not having been satisfied, the creditors may ISSUE: WON the provisional remedy of attachment issued by the TC in
also find themselves without security therefor in the civil action because favor of Hung Ming Kuk was valid
of the dissolution of the attachment. This should not be permitted.
Having previously obtained the issuance of the writ in good faith, they No. It bears recalling that when the Sandiganbayan ordered that the
should not be deprived of its protection if the rehabilitation plan does writ of sequestration be lifted, PCGG filed a special civil action for
not succeed and the civil action is resumed. If there is an attachment or certiorari to contest that order. The Supreme Court ruled in favor of
sequestration of the goods or estate of the defendant in an action which PCGG when it granted the latter'spetition to declare the lifting of the writ
is removed to a bankruptcy court, such an attachment or sequestration of sequestration by the Sandiganbayan null and void. Sequestration is
will continue in existence and hold the goods or estate to answer the defined as the process, which may be employed as a conservatory writ
final judgment or decree in the same manner as they would have been whenever the right of the property is involved, to preserve, pending
held to answer the final judgment or decree rendered by the Court from litigation, specific property subject to conflicting claims of ownership or
which the action was removed, unless the attachment or sequestration liens and privileges. The Court also noted the relationship between
is invalidated under applicable law. Under the Rules of Court, a writ of attachment and receivership, on one hand, and sequestration, freeze
attachment may be dissolved only upon the filing of a counter-bond or order and provisional takeover on the other. The latter there are ancillary
upon proof of its improper or irregular issuance. Neither ground has remedies in prosecuting the ill-gotten wealth of the previous Marcos
been established in the case at bar to warrant the discharge of the writ. regime. The Court observed that sequestration, freezing and provisional
No counter-bond has been given. In sum, the Court holds that the takeover are akin to the provisional remedy of preliminary attachment
substitution of the management committee/rehabilitation receiver in or receivership. By an order of attachment, a sheriff seizes property of
Civil Case No. Q-43104 in the RTC of Quezon City is not necessary a defendant in a civil suit so that it may stand as security for the
because the proceedings therein shall be suspended anyway pending satisfaction of any judgment that may be obtained, and not disposed of,
implementation of the revised rehabilitation plan, during which the writ or dissipated, or lost intentionally, or otherwise, pending the action.
of preliminary attachment shall remain in force. (marry suan digest) When a writ of attachment has been levied on real property or any
interest therein belonging to the judgment debtor, the levy creates a
No. In the case of BF homes vs CA, the SC held that the appointment lien which nothing can destroy but its dissolution. This well-settled rule
of a rehabilitation receiver has not necessarily secure the claims of the is likewise applicable to a writ of sequestration. In our view, the disputed
attaching creditor. Since they were able to previously obtain the properties of LBLC were already under custodia legis by virtue of a valid
issuance of the WOA in good faith, they should not be deprived of its writ of sequestration issued by the PCGG on April 2, 1986, when Judge
protection if the rehabilitation plan does not succeed or the civil action Saludares issued the assailed writ of attachment in favor of Hung Ming
is pursued. Just because there was sequestration or receiver appointed Kuk. At that time the writ of sequestration issued by PCGG against LBLC
doesn’t mean that they the attachment is discharged. was subsisting. Said writ of the PCGG could not be interfered with by

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Based on the lectures of Atty Tiu
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the RTC of Lianga, because the PCGG is a coordinate and co-equal body. So whenever the interest of an heir is attached, what will
The PCGG had acquired by operation of law the right of redemption over happen when there is already distribution of the estate?
the property until after the final determination of the case or until its When there is distribution awarded to the heir, the property attached or
dissolution. (marry suan digest) shall be ordered delivered to the sheriff making the levy.

Sequestration, freezing and provisional takeover are akin to the What will the sheriff do?
provisional remedy of preliminary attachment or receivership. The sheriff will place the property in custodial egis until the
determination of judgment for or against the debtor.
Sequestration is defined as the process, which may be employed as a
conservatory writ whenever the right of the property is involved, to So this relates to the interest of an heir in an estate. So that is in Section
preserve, pending litigation, specific property subject to conflicting 7 paragraph (e), how you are going to attach an interest in the estate
claims of ownership or liens and privileges. of a deceased person. So usually the estate of the deceased person will
involve real properties. When an estate is being settled in court that will
The disputed properties of LBLC were already under custodia legis by involve real properties. And one heir is defendant in a case where
virtue of a valid writ of sequestration15 issued by the PCGG on April 2, attachment was issued. The sheriff here will not go directly to the ROD
1986, when respondent Judge Saludares issued the assailed writ of although the property involved is real property and make the levy by
attachment in favor of private respondent Hung Ming Kuk. At that time annotating the levy on the title. The sheriff will not do that. Even
the writ of sequestration issued by PCGG against LBLC was subsisting. though there is real property involved. Because what the heir has is
Said writ of the PCGG could not be interfered with by the RTC of Lianga, only an interest in the estate property. The properties may even be still
because the PCGG is a coordinate and coequal body. The PCGG had in the name decedent, not yet in the name of the defendant. So the
acquired by operation of law the right of redemption over the property sheriff will not go to the ROD in order to annotate its notice of levy nor
until after the final determination of the case or until its dissolution. will he go to the place or location and serve the notice there. That is
(maki notes) not the way that he should attach the share of the heir in the estate.
Although the estate involves real properties. That is why there is a
In the case of Republic vs Saludares, sequestration is defined as the separate treatment under paragraph(e) on how you should attach an
process, which may be employed as a conservatory writ whenever the interest of an heir in an estate subject of settlement. The procedure is
right of the property is involved, to preserve, pending litigation, specific under section 7 paragraph (e) in relation to section 9. The sheriff will
property subject to conflicting claims of ownership or liens and serve the notice of levy on the administrator as well as on the Clerk of
privileges. court (COC). Because the court now has technically custodial legis over
the estate that is subject of settlement. So you notify, you also serve
Who issues sequestration order? What is the nature of a sequestration the notice of levy on the COC where the settlement case is pending.
order? In what cases is it available? You do not go to the ROD. You just serve it to the administrator,
The PCGG. Sequestration, freezing and provisional takeover are akin to executor or the COC. And that’s it.
the provisional remedy of preliminary attachment or receivership.
Whereby the order of attachment, the sheriff seizes property of a Now what happens after that, when there is already a distribution,
defendant in a civil suit so that it may stand as security for the Section 9, in the estate among the heir, then the share that pertains to
satisfaction of any judgment that may be obtained and not disposed of, the debtor or the defendant, the attachment debtor that share will be
or dissipated, or lost intentionally, or otherwise, pending the action. (LA delivered to the sheriff. Now if it is a piece of real property or a portion
Book) thereof, then that is the time when the sheriff will make the levy. Kung
ilang property yan, back to paragraph 1. Pupunta na siya nagayon sa
In what cases is it available? ROD at doon na siya mag seserve ng notice. Para ma annotate the yun
It is available in cases of ill-gotten wealth. sa title yung attachment. That is how it should be done. Kasi yun share
na yon, na distribute na sa heir.
What is the effect when a property belonging to the estate of
the decedent is attached?
AUG 21, MORNING, 2ND HALF (ST)
Sec. 9. Effect of attachment of interest in property belonging to the
estate of a decedent. The attachment of the interest of an heir, Hindi sya didiretso, dadaan sya sa process na ito. Only after that can the
legatee, or devisee in the property belonging to the estate of a court, kasi pag natapos na, nadistribute na, wala ng custodia legis ang
decedent shall not impair the power of the executor, administrator, settlement court. Hindi na under custodia legis ang property once there
or other personal representative of the decedent over such property is distribution. The sheriff will now have to assert the levy, so that the
for the purpose of administration. Such personal representative, property/share of the heir will now be under custodia legis subject of
however, shall report the attachment to the court when any petition the outcome of the case where the attachment was ___, assuming na
for distribution is filed, and in the order made upon such petition, mauna matapos ang settlement case, because settlement cases take
distribution may be awarded to such heir, legatee, or devisee, but forever compared to an ordinary collection case.
the property attached shall be ordered delivered to the sheriff making
the levy, subject to the claim of such heir, legatee, or devisee, or any If the share that was given to the heir is a PERSONAL PROPERTY capable
person claiming under him. of manual delivery, then the sheriff will seize that property and hold it
until the judgment ___. Paragraph (b) na naman ang mag-aapply,
The attachment of the interest of an heir, legatee, or devisee in the kukunin nya ngayon. It will be under his possession.
property belonging to the estate of a decedent shall not impair the
power of the executor, administrator, or other personal representative
of the decedent over such property for the purpose of administration. Question: If you are not sure of what are the properties that can be
Further, when the personal representative shall report the attachment attached, what is the remedy?
to the court where the petition for distribution is filed. In doing so, when Student: It is under Section 10.
there is a petition for distribution is filed, the court will determine the
actual shares of the debtor in the estate. Thereafter the sheriff shall Section 10. Examination of party whose property is attached and
attach the interest of the defendant. While serving the executor, persons indebted to him or controlling his property; delivery of
administrator, or other personal representative with the copy of the writ property to sheriff. — Any person owing debts to the party whose
and the notice that the interest is attached. property is attached or having in his possession or under his control
any credit or other personal property belonging to such party may be

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Provisional Remedies TSN
Based on the lectures of Atty Tiu
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required to attend before the court in which the action is pending or ORDER FOR THE EXAMINATION OF THE DEFENDANT for the defendant
before a commissioner appointed by the court and be examined on to appear at the scheduled time and place for the examination, either
oath respecting the same. The party whose property is attached may before the court or the commissioner. IF HE REFUSES, THAT’S THE TIME
also be required to attend for the purpose of giving information THAT YOU APPLY FOR OR THE PARTY INVOLVED ___ UNDER RULE 71.
respecting his property and may be examined on oath. The court
may after such examination order personal property capable of Q: If the property seized by the sheriff is perishable in nature, what
manual delivery belonging to him in the possession of the person so happens?
required to attend before the court to be delivered to the clerk of the S: It is provided under Section 11.
court or sheriff on such terms as may be just having reference to any
lien thereon or claim against the same to await the judgment in the Section 11.When attached property may be sold after levy on
action. attachment and before entry of judgment. — Whenever it shall be
made to appear to the court in which the action is pending upon
Q: Who will cause the examination? Who will initiate? hearing with notice to both parties that the property attached is
S: The court in which the action is pending, or the a commissioner perishable or that the interests of all the parties to the action will be
appointed by the court, may examined the debtor himself, the creditor subserved by the sale thereof the court may order such property to
of the defendant, or debtors of the defendant, or any person who has be sold at public auction in such manner as it may direct and the
under his control other personal property belonging to the defendant. proceeds of such sale to be deposited in court to abide the judgment
in the action
Q: Who will file the motion there? Will the court just direct the defendant .
to appear and declare what his assets are? Can the court just summon
anybody, debtors and creditors of the defendant in order to disclose the Q: What are the instances when you can resort to the sale of property
extent of the credit’s ___? pending litigation or pending trial on the merits of the case?
S: *repeats Section 10* S: Two instances provided under Section 11:
1) When the property attached is perishable in nature, or
Q: Is that mandatory? Upon whose instance will they be required to 2) When the interests of all the parties to the action will be subserved
appear? by the sale thereof.
S: It may be at the instance of the plaintiff.
Q: How will the sale be made?
Q: What about the sheriff? Pagod na sya kakahanap, wala syang S: In will be in a public auction.
mahanap. Can the sheriff just tell the court, “Judge I cannot find any
property.” Can the sheriff require the defendant to appear in court and Atty Tiu: This refers to the properties actually seized by the court. So
disclose the whereabouts of these properties? you don’t have to wait for the termination of the case. The properties
S: Applying statutory construction, what is not included is deemed maybe sold as ordered by the court in a public auction. After sale, the
excluded, the sheriff may not in his instance direct the examination. proceeds will be delivered to the court to await the final outcome of the
case. In that sense, the proceeds of the sale will take the place of the
Q: What happens now, he cannot find any property? property seized as security for a favorable judgment that the creditor
S: Under Section 10, the court may appoint a commissioner to examine might obtain after trial.
those persons enumerated under Section 10. In this scenario, the sheriff
may cause the examination of those persons. Q: What are the modes of discharging an attachment writ?
S: A mode of discharging an attachment writ is by posting a counter-
Atty. Tiu: Kung ako si sheriff, bahala kayo sa buhay nyo. Hindi naman bond as provided under Section 12. It can also be when, under Section
ako ang naglabas ng pera para makakuha ng writ of attachment. They 13, it was:
do not move unless somebody pushes them to move. That’s the reality. 1) Improperly or irregularly issued,
2) Improperly or irregularly enforced
It is the PLAINTIFF/ATTACHING CREDITOR WHO SHOULD EXERT ALL 3) The bond is insufficient.
EFFORTS IN ORDER TO ASCERTAIN THE EXTENT AND THE
WHEREABOUTS OF THE PROPERTIES OF THE DEFENDANT. Section 12. Discharge of attachment upon giving counterbond.
— After a writ of attachment has been enforced, the party whose
How do you do that? Through constant communication with the sheriff. property has been attached, or the person appearing on his behalf,
You always follow him. ask him, “Ano na nangyari sa attachment?” may move for the discharge of the attachment wholly or in part on
Tapos sasabihin nya “Wala akong mahanap na property”. Then you the security given. The court shall, after due notice and hearing,
(plaintiff/attaching creditor) file the motion in court requiring the order the discharge of the attachment if the movant makes a cash
defendant to appear and answer questions, so that the defendant deposit, or files a counter bond executed to the attaching party with
maybe examined. If you know he has creditors or debtors, then you the clerk of the court where the application is made, in an amount
include those persons who hold properties in behalf of the defendant, equal to that fixed by the court in the order of attachment, exclusive
and be examined in court. So you will know if there are properties that of costs. But if the attachment is sought to be discharged with respect
maybe attached. to a particular property, the counterbond shall be equal to the value
of that property as determined by the court. In either case, the cash
Q: What happens if the defendant refuses to be examined? deposit or the counterbond shall secure the payment of any
S: The court can order him to judgment that the attaching party may recover in the action. A notice
1) Deliver his personal property capable of manual delivery of the deposit shall forthwith be served on the attaching party. Upon
2) Deposit such property to the sheriff or clerk of court. the discharge of an attachment in accordance with the provisions of
this section, the property attached, or the proceeds of any sale
Q: The delivery will only be done after examination. Eh ayaw nya nga thereof, shall be delivered to the party making the deposit or giving
magpa examine. What is the remedy? the counterbond, or to the person appearing on his behalf, the
S: The defendant who refuses to be examined can be held in contempt deposit or counterbond aforesaid standing in place of the property
of court because he was served subpoena and he did not appear. so released. Should such counterbond for any reason be found to be
or become insufficient, and the party furnishing the same fail to file
Atty.Tiu: When you are a party, you are not issued subpoena. Defendant an additional counterbond, the attaching party may apply for a new
na nga eh, ano pang isasubpoena. You only subpoena persons who are order of attachment.
not parties to the case to appear in court. The court will simply issue an

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Based on the lectures of Atty Tiu
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Section 13. Discharge of attachment on other grounds. — received a counter-bond. That will take effect as discharging the writ of
The party whose property has been ordered attached may file a attachment.
motion with the court in which the action is pending, before or after
levy or even after the release of the attached property, for an order Under Section 12, there has already been an actual implementation or
to set aside or discharge the attachment on the ground that the same enforcement of the writ, so there is a need to file oral (?) motion to the
was improperly or irregularly issued or enforced, or that the bond is court subject to notice and hearing, and then the actual posting of the
insufficient. If the attachment is excessive, the discharge shall be counter-bond equivalent to the amount of the attachment bond.
limited to the excess. If the motion be made on affidavits on the part
of the movant but not otherwise, the attaching party may oppose the Q: In the case of THE MANILA REMNANT VS. CA (decided 1994,
motion by counter-affidavits or other evidence in addition to that on under the old rules), what was the amount of the counter-bond?
which the attachment was made. After due notice and hearing, the S: The counter-bond was fixed at P500,000.00.
court shall order the setting aside or the corresponding discharge of
the attachment if it appears that it was improperly or irregularly Q: Was that correct?
issued or enforced, or that the bond is insufficient, or that the S: The SC upheld the validity of the value of the counter-bond.
attachment is excessive, and the defect is not cured forthwith.
Q: How much was the attachment bond?
S: The attachment bond here was P66,571.00.
Q: How do you discharge a writ by counter-bond?
S: *reads Section 12*
Q: Isn’t it under the rules that the counter-bond should be equivalent to
the attachment bond?
Q: When you file a counter-bond, what is the procedure?
S: Before the 1997 Rules, the amount can be based on the value of the
S: 1) There must be a motion for the discharge of the attachment wholly
property.
or in part of the security given
2) Movant makes a cash deposit, or files a counter-bond executed to the
Atty Tiu: Under the old Rules, the counter-bond can be determined
attaching party with the clerk of the court where the application is made;
based on the value of the property. Under the new Rules, it is equivalent
3) There will be hearing with notice to all parties; and,
to the attachment bond. If the case has been filed under the old Rules,
4) If proper, the court will order the discharge of attachment.
chances are, the determination of the amount of the counter-bond will
still be on the value of the property.
Q: When do you avail of counter-bond to discharge attachment writ
under Section 12?
S: After there is already enforcement of the writ of attachment. THE MANILA REMNANT CO. INC. VS. CA
As for the counterbond the lower court did not err when it fixed the
Atty. Tiu: So this means that there was already a levy made by the same at P500,000.00. As correctly pointed out by the respondent
sheriff. There was already an actual seizure for garnishment, for court that amount corresponds to the current fair market value of the
annotation of the levy with the Registry of Deeds. Tapos na ang trabaho property in litigation and was a reasonable basis for determining the
ni sheriff, nakasubmit na sya ng return. That is when you apple Section amount of the counterbond.
12. You ask the court to discharge the writ by posting a counter-bond.
You have to file a motion first. It will be heard, and then you post the
cash bond or counter-bond. Q: What is the duty of the court when the counter-bond is posted?
S: The court will order the discharge of the attachment.
Q: How much is the counter-bond?
S: As to the amount, under Section 12, it shall be equal to that fixed by Q: What is the effect if a counter-bond is filed?
the court in the order of attachment, exclusive of costs. S: The counter-bond will substitute as security for the judgment.

Atty. Tiu: It is the same amount that was fixed by the court as Atty. Tiu: The counter-bond will take the place of the property to be
attachment bond in the order. You simply put up the equivalent amount attached, that will now stand as security for the judgment that the
of the attachment bond. That will be your counter-bond. plaintiff may claim.

Q: Must there be a notice and hearing before you can post a counter- Q: When a defendant posts a counter-bond, at what point can you say
bond? is the attachment discharged?
S: No ma’am. S: In the case of SECURITY PACIFIC VS. TRIA-INFANTE, the mere
posting of a counter-bond does not automatically discharge the writ of
Q: When the sheriff is in the process of enforcing the writ and you are attachment. It is only after hearing and after the judge has ordered the
already with your counter-bond, are you going to run to the court and discharge of the attachment if a cash deposit is made or a counter-bond
file a motion, and have that motion heard before you can post your is executed to the attaching creditor is filed, that the writ of attachment
counter-bond? is properly discharged under Section 12, Rule 57 of the Rules of Court.
S: <inaudible>
Q: When you actually post the counter-bond, the writ is not yet
Atty. Tiu: So Section 12 here only applies AFTER enforcement of the discharged?
writ. S: When they executed the counter-bond, there are yet no properties
charged to speak of, because the properties must be in the possession
Under Section 5, there is no need to file a motion. of the sheriff.

In Section 2, it is upon issuance of the writ or even before actual SECURITY PACIFIC ASSURANCE CORP VS. TRIA-INFANTE
issuance of the writ but the order granting the writ was already issued SPAC’s argument that the mere filing of a counter-bond in this case
and the posting of the attachment bond, then you can actually go to cannot automatically discharge the attachment without first an order
court if you are the defendant and post a counter-bond. The writ may of discharge and approval of the bond, is lame.
not actually be issued. If it is already issued, but the sheriff is already in
the process of serving it, then you can leave the counter-bond to the Under the Rules, there are two (2) ways to secure the discharge of
sheriff. The sheriff will simply include in his return the fact that he an attachment. First, the party whose property has been attached or
a person appearing on his behalf may post a security. Second, said

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Provisional Remedies TSN
Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

party may show that the order of attachment was improperly or under Section 13, Rule 57 to quash the writ for impropriety or irregularity
irregularly issued. in issuing it. The reason is simple. The writ had already been quashed
by filing a counter-bond, hence, another motion to quash it would be
The mere posting of a counterbond does not automatically discharge pointless.”
the writ of attachment. It is only after hearing and after the judge
has ordered the discharge of the attachment if a cash deposit is made Atty. Tiu: The counter-bond is the fastest way to discharge the writ, but
or a counterbond is executed to the attaching creditor is filed, that it does not mean it is a waiver of the grounds of the defects attending
the writ of attachment is properly discharged under Section 12, Rule the issuance of the enforcement of the writ, which are grounds for
57 of the Rules of Court. discharging the writ under Section 13. Since it is not a waiver, does that
mean that you can file or invoke these grounds to discharge the writ
The filing of the counter-attachment bond by petitioner Villaluz has under Section 13? No. What is there to discharge? You already
discharged the attachment on the properties and made the petitioner discharged it when you filed the counter-bond. It is a useless motion
corporation liable on the counter-attachment bond. This can be that you will file in court, a duplication when you have already achieved
gleaned from the DEFENDANTS BOND FOR THE DISSOLUTION OF the very relief you are asking the court, i.e. to discharge the writ.
ATTACHMENT, which states that Security Pacific Assurance
Corporation, as surety, in consideration of the dissolution of the said Q: What is then the ruling in CALDERON that it is not a waiver? What
attachment jointly and severally, binds itself with petitioner Villaluz does that mean?
for any judgment that may be recovered by private respondent S: It means that when a counter-bond is already posted, because the
Anzures against petitioner Villaluz. purpose of the remedy is the release of the property attached, then the
writ is already discharged. <inaudible> either of the remedies under
Q: What if the counter-bond is given prior to the enforcement of the Section 13. However, there are two types (?) of the issuance of the writ
writ? Do you still need the order for the writ to be discharged? which constitute as grounds to discharge the attachment under Section
S: No, because prior to the enforcement of the writ, the property is not 13. These grounds are not included when a counter-bond is posted.
yet in the possession of the sheriff.
Atty. Tiu: The defects cannot be used as grounds to discharge the writ
Q: If a property has not yet been seized or not yet been levied by the anew under Section 13. However, the same grounds or defects can be
sheriff, are you saying that the mere posting of counter-bond will used to claim damages against the attachment bond. That is the purpose
discharge the writ of attachment? for serving your right to utilize these defects; they serve now as grounds
S: No, this just prevents the sheriff from enforcing the writ of to claim against the attachment bond. They don’t discharge the writ as
attachment. it was already discharged, but they are for claiming damages against
the attachment. Remember, this is one of the crucial requirements for
Q: So the writ is just there, just not enforced? which you will sue to answer for any damages that the defendant might
S: <inaudible> suffer by reason of the issuance of the writ when it turns out that ___.
In this case, any defect or ground that will serve or discharge the writ
under Section 13 is a ground to claim damages against the attachment.
Q: The counter-bond may be in what form? That is how to reconcile CALDERON and MINDANAO SAVINGS. That
S: It can be in the form of cash and property. is also how to reconcile Section 12 and 13.

Atty. Tiu: So it can be in the form of cash, property and surety. Same Q: What are the grounds to discharge the writ under Section 13?
with the form of attaching bond. S: 1) The writ was improperly or irregularly issued
2) It was improperly or irregularly enforced
Q: What is the liability of the surety? 3) The bond was insufficient.
S: The surety will be liable to the defendant for any money judgment
that maybe recovered against the defendant. Q: When can you avail of these grounds to discharge the writ?
S: Before or after the levy or even after the release of the property
Q: Does a party to the counter-bond have the effect of waiving any attached.
defects in the issuance of the writ?
S: In the case of CALDERON VS. IAC, the posting of the counter-bond Atty. Tiu: Under Section 13, you can actually cause the discharge of the
does not constitute a waiver of any defect in the issuance of the writ. writ even before the levy made by the sheriff. The ground will be in the
The attachment debtor cannot be deemed to have waived any defect in issuance of the writ. There is something wrong, or there are defects in
the issuance of the attachment writ by simply availing himself of one the issuance of the writ. It was irregular or improper. As early as in that
way of discharging the attachment writ, instead of the other. Moreover, stage, you can move to discharge the writ on the ground of improper or
the filing of a counter-bond is a speedier way of discharging the irregular issuance. That conforms to the view that even before issuance
attachment writ maliciously sought out by the attaching creditor instead of the writ, or even before its enforcement, the remedy of counter-bond
of the is also available.
other way, which, in most instances like in the present case, would
require presentation of evidence Q: Who may avail of these grounds?
in a full-blown trial on the merits and cannot easily be settled in a S: It is the property whose property has been ordered attached.
pending incident of the case.
Q: What is the procedure?
*Atty. Tiu agrees* S: The person whose property has been ordered attached can:
1) File a motion with the court in which the action is pending, before or
Q: If the defects are not waived, and you filed a counter-bond, does it after levy or even after the release of the attached property, for an order
mean that you can still move to discharge the writ on the ground of the to set aside or discharge the attachment.
defects? 2) If the motion be made on affidavits on the part of the movant but not
S: Yes. otherwise, the attaching party may oppose the motion by counter-
affidavits or other evidence in addition to that on which the attachment
Q: Are you sure? Is that the ruling in MINDANAO SAVINGS VS. CA? was made.
S: No ma’am. The SC held that “after the defendant has obtained the 3) After due notice and hearing, the court shall order the setting aside
discharge of the writ of attachment by filing a counter-bond under or the corresponding discharge of the attachment if the grounds are
Section 12, Rule 57 of the Rules of Court, he may not file another motion present.

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Based on the lectures of Atty Tiu
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JOPILLO, JR. VS. CA


Atty. Tiu: When you move to discharge, you have to file a motion in A motion to discharge a writ of attachment on the ground that the
court. You attach thereto affidavits to support the ground for the same was improperly or irregularly issued may be established by the
discharge. Theo other party may also oppose and attach counter- affidavits submitted by the party whose property has been attached
affidavits to counter whatever arguments or grounds that may have or such other evidence presented at the hearing of the motion. The
been raised in the motion, as well as counter-evidence to support attaching creditor may oppose the same by counter-affidavits or
issuance of the writ. There should be notice and hearing. other evidence in addition to that with which the attachment was
made.
Q: What kind of hearing is needed here? Can the court dispose if the
hearing? After all, there are already affidavits and counter-affidavits If the movant establishes that the facts stated in the plaintiffs
submitted. affidavit or some of them, are shown to be false or untrue, the writ
S: Court cannot dispense with the hearing, because under Section 13, of attachment may be considered as improperly or irregularly issued.
“After due notice and hearing, the court shall order the setting aside or 5 The determination of the existence of said grounds to discharge a
the corresponding discharge of the attachment if it appears that it was writ of attachment rests in the sound discretion of the lower court.
improperly or irregularly issued or enforced, or that the bond is
insufficient, or that the attachment is excessive, and the defect is not In the present case, although the evidence submitted by petitioner
cured forthwith.” Also, it is to find out that the grounds are present to tended to show payment of the obligation subject of the complaint,
warrant the setting aside. it appears that the genuineness of the alleged receipt of the scrap
materials which petitioner claims to have delivered to private
Atty. Tiu: There must be hearing, obviously because there is a motion respondent to offset his obligation is in issue. Besides, the nature of
filed. The motion should be heard. The hearing requirement is the agreement and the actual deliveries made of the scrap materials,
mandatory, indispensible. among others, are factual issues that must be resolved at the trial on
the merits and not at the hearing of the motion to discharge the writ
Q: Cite an instance when there is an improper or irregular issuance of of attachment. If the private respondent did not present any counter-
the writ. affidavit or evidence to counteract what has been adduced by
S: <inaudible> petitioner at the hearing of the motion, it must be because private
respondent believed that it was not necessary. As it is, the trial court
Atty. Tiu: If the grounds are not very clear, or there are no sufficient was apparently not persuaded by the evidence presented by
allegations of the grounds in the application, that can be a ground to petitioner so it ordered that the writ of attachment be maintained
discharge the writ. and directed that if petitioner wants a discharge of the writ, he must
put up a bond in accordance with Section 12, Rule 57 of the Rules
Q: In the case of JOPILLO, JR. VS. CA, what is the ground here for which provides— XXX
the discharge?
S: The petitioner argue here that the attachment was improperly or However, petitioner insists that the attachment should, he
irregularly issued because the facts alleged by the private respondent in discharged in accordance with Section 13 of Rule 57 and refuses to
the affidavit are not true, and contends that it is incumbent upon private put up a counterbond as suggested by the court a quo.
respondent to prove the facts.
As correctly ruled by the respondent appellate court, even assuming
Q: If the ground for the discharge also constitutes the cause of action that the trial court committed an error in denying the motion to
in the main action, should the writ be discharged? discharge the writ of attachment the error (if it is an error at all) is
S: The determination of the motion is discretionary on the court whether an error in judgment which cannot be corrected through the
to discharge the writ. The consequence of having the same cause of extraordinary remedy of certiorari but by an ordinary appeal at the
action and ground for discharging the writ is that, there will be going proper time.
into the merits of the case, which should be decided in the main case.
Finally, the findings of the trial court an to whether or not the writ of
attachment had been improperly or irregularly issued based on the
evidence submitted at the hearing may not be disturbed on appeal
unless there is a showing that it committed a grave abuse of
discretion in its exercise. This petitioner failed to establish.

Q: At what stage of the proceedings can the defects in the issuance of


the writ be raised? Is it only through a motion to discharge?
S: It can also be done in the main case, aside from the motion to
discharge (?).

Q: Who has the burden of proof?


S: It is on the person who seeks or applied for the attachment.

Q: What kind of hearing here is necessary? What is the nature of the


type of the hearing required? Is it a trial-type hearing?
S: No ma’am.

Q: What type of hearing is contemplated here?


S: The hearing will only be as to the allegations ___. The person who
asked for the discharge of the attachment through motion to discharge
would allege that, for example, the reason for the asking of the
discharge of the attachment that the plaintiff now in such hearing have
to prove that the allegations in the attachment ___. <Sorry, parang di
masyado nag make sense. Mahina ang voice sa recording. >

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Based on the lectures of Atty Tiu
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Q: In the hearing for a discharge of the writ of attachment, when the August 21, 2018 (afternoon class) JS
ground for the issuance of the writ is fraud, who has the burden of proof Atty. Tiu: Other than the motion to discharge and counter bond, what
to show fraud? other remedy can be availed of to discharge the writ of preliminary
S: It is the person who asked for the writ of attachment. attachment?
Atty. Tiu: Those are the grounds for the motion do discharge! What
Q: If the attaching creditor fails to prove fraud, can the court lift the other remedy can you avail of other than a motion to discharge?
attachment writ? Should the attachment be discharge if there is no proof Student: A petition for reconsideration ma’am
of fraud? Atty. Tiu: Motion for reconsideration of what?
S: It is not to be discharged since the fraud is the basis of the plaintiff’s Atty. Tiu: so when the court issues the order granting the writ, when
determination of the existence of the cause of action. you file an MFR that is in fact a motion to discharge. That can be treated
as motion to discharge.
Q: So the attachment writ will stand despite the absence of showing of
fraud in a motion to discharge? Atty. Tiu: What happens if the property seized or levied upon
S: In the case of CUARTERO VS. CA, the attachment may not be by the sheriff belongs to a third person?
dissolved by a showing of its irregular or improper issuance if it is upon Student: “cited Rule 57 Section 14”
a ground which is at the same time the applicant's cause of action in the Section 14. Proceedings where property claimed by third person. —
main case since an anomalous situation would result if the issues of the If the property attached is claimed by any person other than the
main case would be ventilated and resolved in a mere hearing of a party against whom attachment had been issued or his agent, and
motion. such person makes an affidavit of his title thereto, or right to the
possession thereof, stating the grounds of such right or title, and
Q: Was there proof of fraud during motion to discharge? serves such affidavit upon the sheriff while the latter has possession
S: The court here later discharged the writ on the ground that the of the attached property, and a copy thereof upon the attaching
petitioner could not be faulted because …. party, the sheriff shall not be bound to keep the property under
attachment, unless the attaching party or his agent, on demand of
Q: Was the discharge proper? Is it the same ruling as in CUARTERO? the sheriff, shall file a bond approved by the court to indemnify the
S: No, because it was clear here that there was really no fraud in the third-party claimant in a sum not less than the value of the property
circumstances, and the court said that it was logical that there was no levied upon. In case of disagreement as to such value, the same shall
fraud in the inception of the contract, so the court said that the discharge be decided by the court issuing the writ of attachment. No claim for
was not proper. damages for the taking or keeping of the property may be enforced
against the bond unless the action therefor is filed within one
Q: Not proper? Even if there is no fraud? That fraud was not really hundred twenty (120) days from the date of the filing of the bond.
proven, the discharge was not proper? So even if you filed a motion to The sheriff shall not be liable for damages for the taking or keeping
discharge, and there is no showing of fraud as alleged in the application of such property to any such third-party claimant, if such bond shall
as ground, the writ must not be lifted? Because the ground of the be filed. Nothing herein contained shall prevent such claimant or any
discharge is exactly the same as the main cause of action in the case? third person from vindicating his claim to the property, or prevent
the attaching party from claiming damages against a third-party
Atty. Tiu: The discharge here was proper. Even if the ground alleged for claimant who filed a frivolous or plainly spurious claim, in the same
the writ constitutes the very same ground for the discharge. or a separate action.
When the writ of attachment is issued in favor of the Republic of the
Q: How do you reconcile that now with CUARTERO? Philippines, or any officer duly representing it, the filing of such bond
shall not be required, and in case the sheriff is sued for damages as
CUARTERO VS. CA a result of the attachment, he shall be represented by the Solicitor
The question as to whether a proper ground existed for the issuance General, and if held liable therefor, the actual damages adjudged by
of the writ is a question of fact the determination of which can only the court shall be paid by the National Treasurer out of the funds to
be had in appropriate proceedings conducted for the purpose be appropriated for the purpose.
(Peroxide Philippines Corporation V. Court of Appeals, 199 SCRA 882
[1991]). It must be noted that the spouses Evangelista's motion to
discharge the writ of preliminary attachment was denied by the lower Atty. Tiu: How is the third party claim be made?
court for lack of merit. There is no showing that there was an abuse Student: He should make an affidavit ma’am, that he has title to the
of discretion on the part of the lower court in denying the motion. property or right of possession thereof. He must state thereof the
grounds of such right that is protected. He shall also serve such affidavit
Moreover, an attachment may not be dissolved by a showing of its upon the sheriff who has the possession of the attached property and a
irregular or improper issuance if it is upon a ground which is at the copy thereof to the attaching party ma’am.
same time the applicant's cause of action in the main case since an Atty. Tiu: What will be the effect when the third party is filed? What will
anomalous situation would result if the issues of the main case would the sheriff do?
be ventilated and resolved in a mere hearing of a motion (Davao Student: the sheriff shall not keep the property under attachment,
Light and Power Co., Inc. v. Court of Appeals, supra, The unless the attaching party files a bond ma’am which is approved by the
Consolidated Bank and Trust Corp. (Solidbank) v. Court of Appeals, court.
197 SCRA 663 [1991]). Atty. Tiu: What is the condition of the bond? What is the bond for?
Student: So that the property shall not be released to the 3rd part
In the present case, one of the allegations in petitioner's complaint claimant ma’am…to protect the sheriff against claims for damages for
below is that the defendant spouses induced the plaintiff to grant the not releasing the property attached ma’am.
loan by issuing postdated checks to cover the installment payments Atty. Tiu: Is it for the benefit of the Sheriff?
and a separate set of postdated cheeks for payment of the stipulated Student: Yes, ma’am.
interest (Annex "B"). The issue of fraud, then, is clearly within the Atty. Tiu: Are you sure?
competence of the lower court in the main action. Student: Yes, ma’am. It is to protect the sheriff.
Atty. Tiu: So the bond will be paid to the sheriff?
Student: No, ma’am.
We will resume later. Atty. Tiu: What is the purpose of the bond?
Student: To indemnify the 3rd party in case it was filed improperly
ma’am.

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Based on the lectures of Atty Tiu
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Atty. Tiu: when can a claim against the bond be made? Student: A separate action to claim for damages ma’am.
Student: A claim against the bond can be made within 120 days from Atty. Tiu: can you avail of a provisional remedy in that separate action?
the date of the filing of the bond ma’am. Can you also ask for the issuance of a writ of preliminary attachment in
Atty. Tiu: what is the effect when the bond is filed? order to recover that property attached by the sheriff?
(gi-ubo si ate bambi, huhuhu luoy kaayo) Student: ….
Student: the bond is filed ma’am, the sheriff shall not be bound to keep Atty. Tiu: who will be the defendant on that case?
the property under attachment ma’am…… Student: The defendant will be the … (not clear)
Atty. Tiu: The sheriff will not keep the property? Now what will happen Atty. Tiu: are you sure? So in the meantime that your main case is
to the property? pending, the property is taken away from you?
Student: if there is a bond ma’am the sheriff will continue to hold the Student: I think ma’am you can file for a provisional remedy of injunction
property ma’am. ma’am?
Atty. Tiu: The sheriff will keep the property or not? Atty. Tiu: Are you sure? (Guys, murag mugawas ni sa exam na question,
Student: Keep it ma’am. sige ra niyag balik-balik. Hahaha!)
Atty. Tiu: Okay, so here you see another requirement of the bond. But Student: in an action for recovery ma’am, yes ma’am an injunction
this time it is to indemnify a third party claimant, not the defendant nor maybe included in the attachment of property.
plaintiff. But a completely different person. A stranger to the case. That
is the purpose of the bond whenever a property claiming to be owned Atty. Tiu: What happen in the case of Manila Herald Publishing vs
by the 3rd party claimant is subject of attachment. So in that case, the Ramos?
bond will answer for any damage. So take note, that the claim against Atty. Tiu: So what was the main action filed?
the bond can only be made within 120-days from the filing of the bond. Student: The main action is a libel suit ma’am. (wrong answer)
Beyond that what happens to the bond? Atty. Tiu: The separate action filed by the 3rd party claimant, what action
Student: If there is no claim within 120 days the party shall file a was it?
separate action to claim for damages ma’am. Student: A Terceria ma’am….
Atty. Tiu: Is the requirement of the bond in Terceria absolute? Or is Atty. Tiu: So the main action there is injunction. So is there a provisional
there an exemption? remedy there that was sought?
Student: There is an exemption ma’am when it is issued in the name of Student: there was an injunction case ma’am…
the Republic of the Philippines ma’am. The requirement is no longer Atty. Tiu: Who filed the injunction?
applicable ma’am. Student: It was the Manila Herald ma’am against the Sheriff.
Atty. Tiu: the bond here is posted by the plaintiff, so they are now 2 Atty. Tiu: Were they able to get a provisional remedy?
bonds the plaintiff will post. The attachment bond, as well as the 3 rd Student: They filed a motion for intervention ma’am. So….
party bond. Atty. Tiu: The question is, is there provisional remedy in the injunction
Atty. Tiu: now if there is a bond filed, the sheriff will not return the case?
property to the 3rd party claimant. It will continue to hold the attached Student: the remedy ma’am is injunction ma’am.
property and it will continue to be under custodia legis. The remedy of Atty. Tiu: is there an injunction issued?
the 3rd party claimant will be to file for damages against the bond which Student: There was an injunction ma’am.
is within 120 days from the day of filing. What other remedies are there Atty. Tiu: Is that proper? To issue an injunction against the court?
for the 3rd party claimant if the sheriff refuses to release the property Student: There was an injunction ma’am and the court ruled that it was
attached? proper ma’am.
Student: If the sheriff refuses to release the property attached, he may Atty. Tiu: WHY? Isn’t that violative of the Doctrine of Non-
also filed a motion for intervention or a separate action ma’am. Interference by a co-equal court?
Atty. Tiu: so both remedies can be availed of the same time? Student: No ma’am.
Student: No, ma’am…. a motion for intervention ma’am may be filed…. Atty. Tiu: Why not?
Atty. Tiu: how do you intervene in a case? Student: The intervention…..
Student: cited Rule 19 Section 1 Atty. Tiu: THERE IS NO INTERVENTION HERE! Do not confused
intervention with a separate case! The remedy availed of here is a
Section 1. Who may intervene. — A person who has a legal interest separate case for injunction in which they obtained a preliminary
in the matter in litigation, or in the success of either of the parties, injunction! The question is: would that not violate the Principle on Non-
or an interest against both, or is so situated as to be adversely interference among co-equal court.
affected by a distribution or other disposition of property in the Student: It is proper ma’am. Since the property here ma’am is not owned
custody of the court or of an officer thereof may, with leave of court, by the defendant, it is owned by the 3rd party and the injunction is
be allowed to intervene in the action. The court shall consider proper.
whether or not the intervention will unduly delay or prejudice the Atty. Tiu: What is the reason? Considering that the property was levied
adjudication of the rights of the original parties, and whether or not by virtue of a writ of attachment? What is the effect of that property
the intervenor's rights may be fully protected in a separate being placed under custodia legis? Can another party in a separate case
proceeding. interfere with that by issuance of another provisional remedy?
Student: (not clear)
Atty. Tiu: How do you intervene? Atty. Tiu: So if the property doesn’t belong to the defendant and it was
Student: By filing a pleading in intervention ma’am. attached by the sheriff, a separate action can be filed from which you
Atty. Tiu: What is that pleading in intervention? can also get a provisional remedy in order to obtain immediate recovery
Student: it may be in a form of an answer in intervention ma’am. of said property. And there is no interference with the jurisdiction of a
Meaning that you plead your causes ma’am together with the main case. co-equal court because in the 1st place the property was not validly place
Atty. Tiu: Is the motion to intervene absolute? Is that effective remedy? in custody. Considering that the property was being levied by the sheriff
Student: such motion ma’am is discretionary ma’am. meaning it depends is void.
upon the court to grant such motion ma’am. The Writ of Attachment commands the sheriff to seized property
Atty. Tiu: So if you are denied to intervene, what is the remedy of the belonging to the defendant. If the sheriff doesn’t comply by such order
3rd party claimant? by seizing property belonging to a 3rd person then the levy made by the
Student: If it is denied ma’am, you can file for a separate action because sheriff is void. So the doctrine on non-interference will not apply.
theses remedies are cumulative ma’am so if it is denied then you may Precisely because there was no valid levy over the property and the
opt to file a separate action ma’am. court didn’t place the property in custodia legis because of the void
Atty. Tiu: What is that action? attachment. REMEMBER THAT PRINCIPLE! No valid levy here, the duty
of the sheriff is to attach properties belonging to the defendant. So if it

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Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

doesn’t conform to the tenor and to the command of the writ then Student: It shall be filed with the court where the action is pending
obviously the levy is void. That is why you can go file a separate case ma’am.
and obtain a provisional remedy and secure immediate release of that Atty. Tiu: Who may file a motion to discharge under section 13?
property improperly levied by the sheriff. So that is the separate action Student: It is the party ma’am whose property has been attached
that you can avail of. ma’am.
Atty. Tiu: When you intervene, can you at the same time file a separate Atty. Tiu: So if the order of attachment, if the writ mandates the sheriff
action? to attach properties belonging to the defendant, shouldn’t be the
Student: No ma’am because the 2 remedies are cumulative. defendant that files the motion to discharge?
Atty. Tiu: Cumulative? So pwede dalawa kasi cumulative eh? Student: Under section 13 ma’am it is the party whose property was
Student: You can’t avail of the remedies at the same time ma’am. attached can file a motion to discharge.
Atty. Tiu: So what should you do? You file a separate action or you
should intervene? Atty. Tiu: What is the authority in saying that the 3rd party claimant can
Student: A separate action ma’am…. file a motion to discharge? Where do you get that?
Atty. Tiu: If your motion to intervene is granted, can you still file a Student: It is in the case of Ching vs CA ma’am.
separate action?
Student: Yes, ma’am. Atty. Tiu: What was the explanation? Why is a motion to discharge
Atty. Tiu: Are you sure? (gibalik napud niya, murag mugawas jud ning available to 3rd party claimant?
“are you sure” sa exam ba) Atty. Tiu: What is the remedy avail of here?
Atty. Tiu: Aren’t you guilty of forum shopping? Student: Attachment ma’am. and the 3rd party file a motion to discharge
Student: No ma’am….. the attachment ma’am.
Atty. Tiu: So naka-intervene ka na, mag separate action ka pa? Are you Atty. Tiu: Writ was issued against who?
sure about that? When you intervene, what is the effect of that Student: It is against Alfredo Ching ma’am.
intervention? Atty. Tiu: So here the property, shares of stocks were claimed to be
Again balik tayo sa CivPro nyo, anong mangyayari pag nag-interven kayo conjugal. So the wife filed a motion to set aside the levy. Was it granted?
sa kaso. Hindi kayo kasali tapos makisali kayo. Student: The motion was granted ma’am.
Student:… (gi-ubo napud si ate bambi, huhuhu)
Atty. Tiu: If granted ang intervention what is the effect? According to Atty. Tiu: Is it proper?
you intervention is discretionary. Now, what happens if the court grants Student: Yes, ma’am.
the intervention? What is the effect? Atty. Tiu: So if a motion to discharge is available to a 3rd party claimant,
Student: There will be forum- shopping ma’am. what ground should they invoke under Section 13? What ground it falls?
Atty. Tiu: What is the effect if the intervention is granted? Student: The attachment is…
Student: If it is granted ma’am, you will be a party to the case. Atty. Tiu: The attachment will always be ordered against the property
Atty. Tiu: So when you intervene and the court grants your intervention, of the defendant. Provided that the grounds for the issuance are
that means you are now a party to the case. What are you a defendant properly met. The tenor of the writ will always be against the property
or a plaintiff? of the defendant. The issue here is the enforcement of the writ. So if it
Student: A defendant-in-intervention ma’am is the 3rd party claimant questioning or filing the motion to discharge on
Atty. Tiu: So when you are already a party to that case, can you still file the ground that the property being levied upon is not owned by the
a separate case? defendant, then the ground invoke here under section 13 would be the
Student: Yes, ma’am. No forum-shopping ma’am. improper enforcement of the writ. Sheriff has no business levying a
Atty. Tiu: Why? Nag intervene kana kasali kana sa case tapos mag- property that doesn’t belong to the defendant. You have an additional
separate action ka pa? and you are raising the same issue! KASALI KA remedy. You can file a motion to discharge under Section 14. A 3rd party
NA SA KASO HA, SA MAIN CASE. So can you still file a separate case? claimant can also avail of the grounds under section 13.
Student: If granted ma’am, you don’t need to file a separate action Take note: You don’t have to intervene to the case. If you intervene you
ma’am because you are already part of the main action ma’am. That will will become a party to the case, either plaintiff or defendant. So
constitute forum shopping. pagnatali yan 10 years, nakatali ka din dyan for 10 years. So in the case
Atty. Tiu: THERE WILL BE FORUM SHOPPING talaga! Kahit anong pag of Ching, you can file a motion to discharge.
balik-baliktad mo dyan forum shopping talaga yan, ma-dismiss pa yang Terecia, most immediate remedy that you can avail of. Affidavit ka lang.
dalawang cases mo. So what is this cumulative remedy you are talking Submit mo kaagad sa sheriff. Kung nag bond yung kabila, eh di wala na.
about? The chance that you get your property gets smaller. So, motion to
Student: If the motion is not granted, you have still a remedy to file a discharge ka. As much as possible, you limit your exposure to being part
separate action ma’am. of the case. You limit your participation in that case. Kung denied ang
Atty. Tiu: So if your Terceria is not effective, meaning it does not result motion to discharge, then motion to intervene ka. Tapos ayaw pa rin,
in releasing your property by your affidavit because the other party have file a separate case. OR, if you think that the filing of separate case is
posted a bond, then you can intervene. If the intervention is denied, more expeditious, you can avail of a provisional remedy. If you file an
then you can file a separate action case and ask for a provisional remedy injunction, with a WPI, it might be faster to obtain an immediate relief.
in that case. So all these 3 provisional remedies are cumulative. Meaning Then you can forgo with the intervention. You don’t even have to file a
to say, the availment of one will not bar the others. If you are not motion to discharge. Derecho kana, mas mabilis. It all now depends
successful in the previous remedy you availed of, you can still avail of upon the lawyer. Kaya kayo nandidito, kayo magtitimbang what is the
the other remedy. That is what you meant by cumulative. You cannot best remedy that you can give to your client.
avail of them all of the same time. Otherwise, forum-shopping ka! One Long Chitchat about her “ego”. My Gad! I rolled my eyes.
at a time! Yan ang ibig sabihin ng cumulative remedies. You do not avail May mga transcript kayo jan, wala yang kwenta! (ouch! Shots fired!)
of them simultaneously. Kung granted na ang intervention mo, wag ka Atty. Tiu: TAKE NOTE: The remedy of Terceria also appears in other
ng mag separate action. Forum shopping yan! Cumulative nga! You can remedies.
avail of them if you are not successful sa naunang remedy mo. Hindi Atty. Tiu: When there is already a judgment in favor of the attaching
pwede lahat sabayin mo! Mali! ONE AT A TIME! That will not be barred creditor, how will the judgment be satisfied in the attached property?
because the nature of that remedy is cumulative. Student: Dili nako maklaro iya tingog. Basta nag cite syag Rule 57
Atty. Tiu: So other than these 3 (Terceria, intervention and separate Section 15.
action), what are the other remedies? Atty. Tiu: So first would be the proceeds of the sale of perishable goods.
Student: Another remedy ma’am is the motion to discharge the Then next would be, the sale of real or personal property. If may balance
attachment. pa, that’s the time you go for garnishment.
Atty. Tiu: Where do you file that? Now supposing, walang sale of perishable goods?

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Student: Go the next option which is the sale of real or personal Atty. Tiu: Does the court acquire jurisdiction over the persons of the
property. surety even walang summons sa surety?
Atty. Tiu: So this is a sort of order that you should follow assuming that Student: Yes ma’am. This pursuant to the motion of recovery against
they all exist. But kung garnishment lang ang available, proceed to the bond.
garnished property. Atty. Tiu: How can the court act coercively against the surety when there
Atty. Tiu: What happens when the property attached was not was no summons serve to the surety to make it solidary with the
applied for the satisfaction of the judgment by the reason of the defendant?
negligence of the sheriff. Student: Instead of the summons ma’am, it would be the demand on
Student: cited PNB vs Vasquez (kapoy digest, basaha nalang ninyo the surety.
hahaha) Atty. Tiu: Kaya nga, kung ako si surety, I will ignore the demand. Di
Atty. Tiu: So when the property was already attached by the actual naman ako gi-summon eh! Why should I comply the demand? And
seizure of the personal property capable of actual delivery, as we have precisely this is the argument in the case of Zaragoza vs Fidelino.
said, physical possession of that property remains with the sheriff. Under How was that answered in that case?
custodia legis. It will await until the outcome of the case. So pagdating Student: The surety by putting itself solidary liable with the defendant
ng outcome of the case and panalo ang creditor, you suppose use that ma’am.
property to pay for the judgment. Eh kung nawala, na misappropriate Atty. Tiu: How come the surety is now under the jurisdiction of the
yung property na yun? Obviously, the defendant cannot be held liable court?
for that. Kasi wala sa kanyang control. Only if the value of such property, Student: Because in relation to the solidary liability, in case of
when sold at public auction, will the defendant be liable for the balance. preliminary attachement ma’am, (inaudible).
But if it is supposedly enough ang value ng property for the judgment Atty. Tiu: How can the court enforce the solidary liability?
then may negligence ang sheriff, nawala, then it is no longer the Student: By filing the counterbond the surety in reflect submitted to the
responsibility of the defendant. jurisdiction of the court ma’am.
When the property is not enough, what will be the remedy? Can Atty. Tiu: So there is voluntary appearance on part of the surety when
properties of defendant still be seized to satisfy the judgment? When it agreed to be solidary liable for the counterbond. It is equivalent to
the property in the hands of the sheriff has already been exhausted and voluntary appearance.
still it is not enough? What is the remedy with respect to the balance? Can you apply section 17 when the judgment is pending appeal?
Student: The sheriff shall pursue the other properties of the defendant Student: It can be apply ma’am.
…(inaudible). Atty. Tiu: Are you sure? (sure ko mugawas najud ning “are you sure” sa
Atty. Tiu: How can the sheriff pursue other properties? How can he exam ba)
enforce the balance against the defendant? What is the procedure? First sentence of section 17.
Student: the sheriff must proceed to collect such balance as upon Atty. Tiu: can you use it to execute pending appeal or you have to wait
ordinary execution ma’am. for the finality of the judgment?
Atty. Tiu: So there will be an execution for the balance. How about if Atty. Tiu: What happens when the judgment only makes the defendant
there is excess? liable without mentioned of the surety? Can the surety still be made
Student: the Sheriff should return it to the defendant ma’am. liable?
Atty. Tiu: Now take note, the satisfaction of the judgment under Section Student: Yes ma’am. Because it comes along with the solidary liability
15 speaks of the property the defendant that has actually been levied of the surety.
on by the sheriff. What if there was a counterbond? Meaning, the Atty. Tiu: how can there be execution when there is no mention of the
attachment was discharged by reason of posting of a counterbond. So surety in the decision? Remember, what you execute is what is written
how will you ow go after the counterbond to satisfy the judgment in the in the dispositive portion. So kung wala jan, how will you execute now?
case? Student: The surety will still liable ma’am, even though it is not stated
Student: cited Rule 57 Section 17 in the judgment as it submits voluntarily to the jurisdiction of the court.
Atty. Tiu: When the counterbond is in the form of surety bond, then Atty. Tiu: Supposing when instead of the counterbond, there is a cash
obviously he have to go against the surety company. If cash or property deposited. How will you go after the cash deposited?
bond, no problem. But if it is surety bond, what the specific procedure? Student: cited Rule 57 Section 18
Student: cited Rule 57 Section 17 Atty. Tiu: So what happens to the cash that was deposited?
Atty. Tiu: What is the first step? Student: the cash ma’am will be now in lieu of the property ma’am.
Student: (in audible) Atty. Tiu: If there is now judgment in favor of the plaintiff, how will you
(Ate Bambi, pa-check up na oy! Sige lang kag ubo) impose that on the cash deposited?
Atty. Tiu: Why there is need notice in hearing before a surety can be Student: The cash deposited, based on a court order, will be now given
held liable for the counterbond? to the plaintiff ma’am.
Student: So that ma’am the surety will be inform and notify about the Atty. Tiu: So there is a court order directing that the cash be held in
proceedings against the counterbond. favor of the plaintiff, the attachment creditor.
Atty. Tiu: Supposing the surety will not pay? There is notice and hearing, If the judgment is in favor of the defendant, meaning the case is
still will not pay. What is the remedy? dismissed, what happens to the cash deposited?
Student: The remedy now is to go against the surety because he is Student: It has to be return to the defendant.
solidary liable with the defendant (inaudible) Atty. Tiu: So obviously, it has to be return to the defendant.
Atty. Tiu: Is there is need to file a separate action against the surety If the judgment is in favor of the defendant, meaning to say the case
considering that the surety was not made a party to the case? filed by the attaching creditor was dismissed, what will happen to the
Student: No ma’am, you don’t need to file a separate action because the property that was attached?
surety is solidary with the defendant of this case ma’am. Student: Pursuant to Rule 57 section 19 ma’am, if the case is dismissed
Atty. Tiu: Would that not violate due process as far as the surety is then all the properties that were seized or levied by the sheriff shall be
concern? return to the defendant.
Student: No ma’am. Atty. Tiu: So if the case is dismissed then all the properties that were
Atty. Tiu: How can the surety be part of the case when the court can seized or levied by the sheriff shall be return to the defendant. Then the
only acquire jurisdiction over the person of the defendant by service of attachment shall be ordered discharged. So there will be an order to
summons? How can he be now held solidary liable with the defendant return the properties. Delivery of property back to the defendant.
kahit wala syang summons? So when you speak of a case dismissed and there is a writ of attachment.
Student: Because ma’am in order to holfd the surety liable, one should But the case is dismissed, the consequence of that, whatever properties
file a motion to recovery against the surety ma’am, then the surety will attached shall be return to the defendant. Counterbond, cash deposit,
be notified. return it to the defendant.

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What other remedies can a defendant have when the case is dismissed Atty. Tiu: When is our make-up class? (Transcriber’s Note: She’s
on the merits? referring to the make-up class na siya ray nisulod! LOL!)
Student: Section 20 says ma’am, you claim for damages …(inaudible).
Atty. Tiu: Where do you claim the damages?
Student: It is before the trial court or the appellate court ma’am,
depending on the stage.
Atty. Tiu: Who will be made liable for the damages?
Student: The attaching party and his sureties.
Atty. Tiu: Surety for what?
Student: The attachment bond.
Atty. Tiu: Section 20 now provides the procedure to claim damages
against the attachment bond. Remember at the start, before the WPA is
issued, the attaching creditor is required to post an attachment bond.
And the attachment bond is equivalent to the demand of the plaintiff. It
is also the same amount of the counterbond. So if after trial on merits,
judgment is rendered in favor of the defendant and the case is
dismissed. Then the defendant can now claim damages against the
attachment bond.
When do you claim damages against attachment bond under section 20?
Student: It must be filed before the finality of the judgment ma’am.
Atty. Tiu: Take note, before finality of judgement ha. Compare it with
section 17 which says that the judgment must be final and executory.
That presuppose that the plaintiff won the case because you are now
going against the counterbond of the defendant. Section 20 speaks of
when the plaintiff losses the case then the defendant now claims
damages against the attachment bond. Talo sya eh. No ground for the
case, thus no ground for the attachment, an improper issuance of the
writ.
What happens if you fail to go against the attachment bond before the
judgment become final and executory?
Student: The effect ma’am is that the claim will now be barred.
Atty. Tiu: In other words, GOODBYE damages! Wala na. You forfeit your
right to damages if you don’t assert it before the finality of the judgment.
Is that absolute? Meaning once final hindi na pwede?
Student: I distinguished ma’am. If no appeal has been taken, it is barred.
But if there is appeal, it is still allowed.
Atty. Tiu: Supposing there is an appeal, can you still file a claim against
attachment bond pending appeal?
Student: Based on section 20, you can still file during appeal ma’am.
Atty. Tiu: So same with appealed case. Before the finality of the decision
of the appellate court. Otherwise, barred! Now, supposing,
lower court talo si plaintiff, nag-appeal sya sa CA. But the defendant
didn’t apply for damages before the trial court. Nasa appellate court na,
doon sya mag-apply ng damages under Section 20, is that allowed?
Student: Yes ma’am.
Atty. Tiu: Who will now hear the claim for damages?
Student: The appellate court ma’am. But it may be the trial court.
Atty. Tiu: Trial court? Are you sure?
Student: Yes ma’am. Section 20 says that the appellate court may allow
it to be heard and decided in the trial court.
Atty. Tiu: So the appellate court can delegate the hearing for claim of
damages to the trial court.
So what is the procedure under section 20?
Student: The defendant will file claim for damages
Atty. Tiu: Then what will the court do?
Student: Notice and copies of such motions shall be served to the
attaching party and his sureties.
Atty. Tiu: Then what happens? Can the court grant a motion without
conducting any hearing?
Student: No. There must be a hearing
Atty. Tiu: What kind of hearing is necessary?
Student: Summary hearing.
Atty. Tiu: The hearing here is basically for the benefit of the sureties. To
afford them due process. So during the hearing, yung mga nga present
na na evidence ng parties, is it necessary to present it all over again
during this summary hearing?
Student: No ma’am, it will only be limited with the new defenses and
not previously set up (inaudible).
Atty. Tiu: So you read all the cases assigned in this topic. Next meeting
we will proceed to RULE 58.

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August 28, 2018. MNA What is Mandatory Preliminary Injunction?


RULE 58 – PRELIMINARY INJUNCTION
A preliminary mandatory injunction is one which requires a person to

Section 1. Preliminary injunction defined; classes. — A preliminary perform a particular acts or acts. ( Sec 1, Rule 58 )
injunction is an order granted at any stage of an action or What is Preventive Preliminary Injunction?
proceeding prior to the judgment or final order, requiring a party or
a court, agency or a person to refrain from a particular act or acts. A preventive preliminary injunction is one which requires a person to
It may also require the performance of a particular act or acts, in refrain from doing a particular act or acts.
which case it shall be known as a preliminary mandatory injunction.
Permanent or Final Injunction
What is Injunction? Judgement rendered after trial which perpetually restrains the party of
 Injunction is a judicial writ, process or proceeding whereby a person enjoined from commission or continuance of the act or acts or
party is ordered to do or refrain from doing a certain act. confirming the preliminary injunction.
 It may be the main action or merely a provisional remedy for What is Final Injunction?
and as an incident in the main action. A final injunction is one which is included in the judgement as the relief
or part of the relief granted as the result of the action. The final
Kinds of Injunction:
injunction is the one mentioned Sec. 9 ( tapos na ang kaso )
1. Preliminary Injunction
Section 9. When final injunction granted. — If after the trial of the
An order granted at any stage of an action or proceeding prior
action it appears that the applicant is entitled to have the act or acts
to the judgment or final order requiring a party or a court, complained of permanently enjoined the court shall grant a final
injunction perpetually restraining the party or person enjoined from
agency or a person either to refrain from or perform a
the commission or continuance of the act or acts of confirming the
particular act or a person either to refrain from or perform a preliminary mandatory injunction.
particular act or acts.
The final injunction in Sec. 9 is not a provisional remedy. That is the

It is sometimes called the “strong arm of equity.” main relief. So, the preliminary injunction becomes now total and
permanent. So, if I want to permanently stop you from doing an act. I

A preliminary injunction is merely a provisional remedy will have to file a case for injunction which is a main action for injunction.

adjunct to the main case subject to the latter’s outcome. It is


DIFFERENCE OF INJUNCTION AND
not a cause of action in itself. PRELIMINARY INJUNCTION

The main action for injunction is distinct from the provisional or ancillary
It may also be an action itself to restrain or command the remedy of preliminary injunction which cannot exist except only as part
performance of an act or a provisional remedy which may be or an incident of an independent action or proceeding.

for other relief. As a matter of course, in an action for injunction, the auxiliary remedy
of preliminary injunction, whether prohibitory or mandatory, may issue.

Under the law, the main action for injunction seeks a judgement
embodying a final injunction which is distinct from, and should not be
What is the Purpose of Preliminary Injunction?
confused with, the provisional remedy of preliminary injunction, the sole
 The object or purpose of preliminary injunction is to maintain object of which is to preserve the status quo until the merits can be
the status quo ( as it is ) between the parties in relation to the heard.

subject matter litigated by them during the pendency of the A preliminary injunction is granted at any stage of an action or
action ( Madrigal vs. Rodas, 80 Phil. 252; Angela Estate vs CFI proceeding prior to the judgement or final order. It persists until it is
dissolved or until the termination of the action without the court assuing
of Negros Occidental, July 31, 1968.) a final injunction.

DOES INJUNCTION APPLY TO CONSUMATED ACTS?


Note: Preliminary Injunction cannot be issued ex-parte unlike
Preliminary Attachment and Temporary restraining order. GR: NO since the purpose of injunction is to prevent future injury;
consummated acts cannot be enjoined.

Exceptions:
2 Types of Preliminary Injunction
1. Preventive Preliminary Injunction – to maintain 1. In cases of mandatory injunctions. The palintiff is claiming
staus quo of things prior to controversy that you should do this and that. There is no consummated
act yet, in the first place.
2. Mandatory Preliminary Injunction – to maintain pre- 2. If the act is continuing , its continuation can be enjoined.
existing rights
CLASSES OF PRELIMINARY INJUNCTION

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status here is not necessarily the status principal to the filing


1) PREVENTIVE/PROHIBITORY
of the case… before that!... It is where the parties are still in
The purpose is to require one to desist of refrain from performing a peaceful business. There is no yet controversy. There is no
particular act whichh wouldd cause irreparable injury if committed, thus
issue. That is the status quo and that is to preserved by
the situation which would cause irreparable injury of the prohibitory
injunction id preserved in status quo. Preliminary Injunction.

2) MANDATORY
Who will Issue the Injunction?
The purpose is to require the performance of a particular act or acts in
1. MTC
order that the last actual peaceable uncontested status which preceded
2. RTC
the pending controversy is restored.
3. CA or any member thereof
REQUISITES OF THE PRELIMINARY INJUNCTION 4. SC, or any member thereof, where the action or proceeding
is pending.
1) A clear and unmistakable legal right
When the Court issues Injunction against government agency,
It has to be actual not contingent or abstract of future or a right in
expectation as to be actually inexistent. would it violate the principle against State Immunity?
 No
Actual legal right means it has as clear legal basisi and not something
that concocted or invented.
Who may grant Preliminary Injunction?
2) His right has been vilated and the invasion is material 1. MTC
and substantial 2. RTC
3) There is an urgent and permanent necessity to prevent 3. CA or any member thereof
serious damage
4. SC, or any member thereof, where the action or proceeding
is pending.

How about quasi-judicial agencies?


Now the concept of preliminary injunction is found in Section
1.  No

Section 1. Preliminary injunction defined; classes – A What is the doctrine of non-jurisdiction?


preliminary injunction is an order granted at any stage of an action GR: Injunctions issued by the RTC’s are limited to acts committed or to
or proceeding prior to the judgement or final order, requiring be committed within the territorial jurisdiction (territorial boundaries of
a party or a court, agency or a person to refrain from a their respective regions).
particular act or acts. The territorial jurisdiction here is that defined by the SC ant not the ones
defined by the executive department such as Region XI composed of
It may also require the performance of a particular act or acts, different provinces.
in which case it shall be know as a preliminary mandatory
injunction. (1a)

WHAT ARE THE CHANGES THERE? BP 129, Sectin 21. Original jurisdiction in other cases. –
Regional Trial Court shall exercise original jurisdiction:
The word ‘final order’ was found in the 1964 Rules. And then, the new In the issuance of writs of certiorari, prohibition, mandamus, quo
Rule says, you can issue a writ of preliminary injunction not only against warranto, habeas corpus and injunction which may be enforced in
a party but even to court of agency. any part of their respective regions; and
In actions effecting ambassadors and other public ministers and
consuls.

What is the last status quo? What is the uncontested status


quo? LIMITATION OF GENERAL RULE:
Applicable only to
 A preliminary injunction is a provisional remedy that a party 1. Injuctive writs
may resort to in order to preserve and protect certain rights 2. Prohibitive writs

and interest during the pendency of an action. It is issued to EXCEPTIONS:


preserve the status quo ante – the last actual, peace and
1. When the act soughtto be enjoined will be exercixed within
uncontested status that preceded the actual controversy. the territorial jurisdiction although the person or
government agency who/which issued the order holds
office outside the court’s jurisdiction. (Decano vs. Edu)

Example: Your client lives in Davao but the respondent is the


Maam: Example… payment and there is pending disconnection, Commissioner of Internal Revenue. The writ can be
implemented in Davao because even if the decision was made
that is the status quo. So, the status quo must be the filing of in Manila, the act sought to be injoined is here in Davao.
the action or before the parties violated any of the rights! The

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2. Where the act sought to be enjoined at another jurisdiction, it and as far as the issuance is concerned…that is not right! They can
yet the residence(esp. Corporations) of both parties are
separate the two in the case of injunction when the injunction is merged
within the jurisdiction of the court that issued the writ
(Dagupan vs. Pano) to be issued against persons, entities beyond the territorial jurisdiction
of the court, then the injunction itself, the writ itself is valid!!! You can’t
This is one of the differences between the writ of attachment and the
writ of injunction. A writ of injunction can be issued and enforced say it is valid in so far as the issuance is concerned, it goes right into the
within the territorial jurisdiction of the court that issued it. A writ of
authority of the court to issue, that is why it is void!!! You can’t separate
preliminary attachment can be enforced anywhere in the Philippines.
the issuance of the court.
So, the doctrine of non-jurisdiction to have abide by the If it is writ of attachment, okay!... What you’ve learned in Rule 57 is
limitations of territorial jurisdiction. In the case of Adiong, was that, it is enforceable anywhere in the Philippines, even it is issued by
it valid? What acts where enjoined by him and where? the RTC!!! CORRECT!!! There can be as many writ of attachment can
Who were enjoined here? be issued and enforce to several jurisdiction in the Philippines emanating
GOMOS vs. ADIONG A.M. No. RTJ-04-1857. November 23, from one court, RTC of Davao City, TRC of Makati, RTC of Cebu. It can
2004
be issued several, several writs anywhere!!!
FACTS: But as far as Injunction is concerned, okay!... The RTC has to be limited
 Pacasum filed a special civil action for mandamus with
by its own territorial jurisdiction. It cannot simply issues an injunction,
application for preliminary mandatory injunction against FAPE
 Respondents judges granted the application for preliminary enjoins acts, perform outside territorial jurisdiction. In the case of
mandatory injunction upon the posting by petitioner of a Adiong, this court is right but the injunction seeks to enjoin acts perform
surety of propety bond in the amount of P200,000.
 FAPE filed a petition for certiorari and prohibition alleging that in Makati and Mandaluyong City. That is a no, no!!! It is very basic
Marawi City has No Jurisdiction to enforce writs of mandamus concept! It is file in territorial jurisdiction of the court. No problem with
and PI to FAPE, in its principal office in Makati City, since the
the Court of Appeals and Supreme Court but when it comes to lower
place is outside the 12th judicial region where it belongs.
Respondents judge’s failure to comply with procedural due process is courts, they are bound to its territorial jurisdiction.
aggravated by his total inattention to the parameters of his jurisdiction. I remember a judge here who issue a TRO against my client in Makati (
As the presiding judge of RTC, Marawi City, he should have
known that Makati City was way beyond the boundaries of his Ma’am Shared her personal experience )
territorial jurisdiction insofar as enforcing a writ of preliminary
injunction is concerned.
What are the exceptions to the doctrine of non-jurisdictional?

What kind of Injunction issued by the law? What is the exception is all about? When do you apply the

 It was mandatory, performance of a particular act. exception? What particular instance?

What is the act compelled to be performed by mandatory


EXCEPTIONS:
injunction?
1. When the act sought to be enjoined will be exercixed within
 Basically, to prepare and issue the check payable to chairman
the territorial jurisdiction although the person or
M. government agency who/which issued the order holds
office outside the court’s jurisdiction. (Decano vs. Edu)
Was the injunction, right?
Example: Your client lives in Davao but the respondent is the
 SC, the judge fail to require procedural due process. Makati Commissioner of Internal Revenue. The writ can be
City is beyond… implemented in Davao because even if the decision was made
in Manila, the act sought to be injoined is here in Davao.

Where is Injunction to be enforced? 2. Where the act sought to be enjoined at another jurisdiction,
 Makati City yet the residence(esp. Corporations) of both parties are within
the jurisdiction of the court that issued the writ (Dagupan vs.
Pano)
So, is this a mere problem like in the case of attachment? Can you say
the same thing in so far as jurisdiction is concern? This is one of the differences between the writ of attachment and the
writ of injunction. A writ of injunction can be issued and enforced within
Is the writ issued outside the jurisdiction of RTC, a question of
the territorial jurisdiction of the court that issued it. A writ of preliminary
enforcement? attachment can be enforced anywhere in the Philippines.

The acts to be enjoined here is what? So, Edu restrain from


MA’AM: When the court issues an injunction to be enforce beyond its
terminating the petitioner? Why? SO any court can enjoin him?
jurisdiction in the case of Adiong, the issuance of the writ of that is void.
DECANO vs. EDU G.R. No. L-30070 August 29, 1980
There is no dichotomy here between the issuance and enforcement of
the writ like you have in the attachment writ. Even they dichotomized FACTS:

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responsible officers is located outside the territorial jurisdiction of the


 Decano worked as janitor in Dagupan City until Edu, as acting
court. What is important is that the implementation of order falls within
Commissioner of Land Transportation Commission,
terminated his services. the jurisdiction of the court. If the court cannot acquire jurisdiction over
 Decano filed before CFI pangasinan petition for mandamus
the person of the respondent because it is beyond the territorial
and injunction which was issued by the trial court.
 Respondents make capital of the fact that the petition of jurisdiction of the court as long he has territorial jurisdiction within the
mandamus with injunction was filed in the Court of First
place where the order is to be implemented, then he can invoke
Instance of Pangasinan while respondent Edu holds office in
Quezon City which they claim is beyond the territorial jurisdiction.
jurisdiction of the said court.
Kung general lang…. Kung sasabihin mo, may order ang national, ipa
It is true that the order of dismissal was issued by respondent implement sa provincial, NO!, it does not follow…that’s too general!!!
Edu, but it was to be implemented in Dagupan City by his
That is not how you should apply. There is a national order, it should
subordinate officer, respondent Acting Registrar of the LTC
stationed at Dagupan City. Insofar, therefore, as respondent Edu is be the national government agency for being question for being void,
concerned, the order terminating the services of respondent was a fait
sought to be implemented in the territorial jurisdiction. Precisely what
accompli and this he had done without authority, as earlier discussed.
The injunction is question, consequently, must be taken only to restrain happened in the case of Decano vs Edu!
the implementation of respondent Edu’s order by his co-respondent
Maam talked about PNOY etc…. Bonggang bonga… tsk tsk charaught ek
whose official station at Dagupan City is within the territorial boundaries
of the trial court’s jurisdictional district. ek…

WHY WAS EDU NOT THE SUBJECT OF INJUNCTION?


What happened to the case of Dagupan?
As in the above-cited case of Aligean, the national official stationed at
DAGUPAN ELECTRIC vs. PANO
Quezon City, namely, respondent Commisioner Edu, was impleaded as
G.R. No. L-49510 January 28, 1980
respondent in the Pangasinan court for a complete determination of the
issues involved, the legality of Edu’s order of dismissal being the pivotal
Fact:
issue to determine the merits of the mandamus and injunction aspects
of the petition. In other words, Mr. Edu was joined as respondent not
 Because of the disconnection of electrical sevices MC Adore
for injunction purposes but mainly for testing the legality of his dismissal
files a complaint damages with wnt of preliminary mandatory
order and his transmittal thereof to his correspondent registrar at
injuction against petitioner corporation.
Dagupan City to implement the same and terminate the services of the
 Judge issued ex parte order for preliminary mandatory
petitioner in Dagupan City.
injuction.
 The petitioners content that the Court of First Instance of Rizal
As held by the Court in the 1965 case of Gayacao vs. The Honorable
at Quezon City has no jurisdiction over the case because the
Executive Secretary, etc, et al., where the issue is the correctness of a
act of disconnecting the power to the hotel of MC Adore
national official’s decision, the provincial courts of first instance have
Finance and Investment, Inc. took place Dagupan City outside
equal jurisdiction with the Mnila courts to review decisions of national
the Province of Rizal and Quezon.
officials, as otherwise litigants of ted means would practically be denied
 The respondents submit that the act of disconnection was the
access to the courts of the localities where the reside and where the
result of an order issued by the Dagupan Electric Corporation
questioned acts are sought to be enforced.
fron its business office Quezon City.
COMMENT: This case pertains to government agencies involving lowly
ISSUE: WON the respondent judge acted with grave abuse of discretion
government employees. It laid down an exception borne out to equity.
in issuing the writ of preliminary mandatory injunction ordering the
If the issue is the correctness of a national official’s decision, the
Dagupan Electric Corporation to restore the connection of the electric
provincial CFI has equal jurisdiction with Manila courts to review
power to the hotel in Dagupan City owned and operated by MC Adore
decisions of national officials otherwise, litigants of limited means would
Finance and Investment Corporation.
practically be denied access to the courts of the localities where they
reside and where the questioned acts are sought to be enforced.
The Dagupan Electric Corporation has its principal office in
Quezon City where the business of the corporation is managed
by the Board of Directors. Decisions of the said corporation are
MA’AM: You can’t say in cases of equity, there has to be parameters made in Quezon City. The employees of Dagupan Electric Corporation
in Dagupan City merely carry out the ordres issued by the officials of
to the exceptions as enunciated in the case of Decano vs Edu. That is
said corporation in Quezon City. Hence the acts sought to be restrained
the parameters. Not all injunction issued by National agency to be are being committed in Quezon city.
implemented in the regional offices. The issue must be respecting the
The respondents judge did not commit a grave abuse of
legality of the decision of the administrative agency to be implemented discretion in issuing the questioned order directing the
Dagupan Electric Corporation to restore the connection of the
within the territorial jurisdiction of the RTC that issues…. That is
electric power to the hotel owned by MC Adore Finance and
specific!! Not all orders can be covered by the exception. Only orders Investment, Inc. The record shows that the respondent judge
conducted hearings and gave the parties full opportunity to present their
dealing with that are being question for being void where issues of
evidence before issuing the orders sought to be set aside.
legality is being raised and is being implemented in the territorial
XXX
jurisdiction of the court of RTC.
In this case, it is the order of the termination is being question… that On the question of jurisdiction, both parties are residents of Quezon
City, as they have their principal offices in Quezon City. The
being void!!! The injunction here was issued even though the
disconnection order was initiated and had its life and source in Quezon

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Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

City. The mandatory injunction is addressed to the corporation in where the acts are to be performed for as long the court has jurisdiction
Quezon City. The Dagupan plant acts only upon order of its officers in
over the defendant which a corporation… And how does the court
Quezon City.
acquire jurisdiction over the defendant? For as long as principal business
XXX
stated in the articles of Incorporation, it is within the territorial
Here we have the case of the interference of plaintiff’s property rights, jurisdiction of the court.
with situs in Quezon City by a corporation situs with situs in Quezon City.
So baliktad!!! So, if you look the first exception and babantayan mo lang,
The exercise of will by defendant had its origin in Quezon City.
saan implement?... for as long the courts has jurisdiction over the
COMMENT: The case applies to corporations and not to individual
implementation of the act … okay!
persons. The main criterion here is the principal place of business of the
corporation where decisions of corporations emanate. A decision rendered by National agency beyond the obvious jurisdiction
of the court ( provincial court ) and such decision is void, there is legality
IS THERE A CONSISTENCY IN DECANO AND DAGUPAN? NONE
to implemented in the decision of the court, then you can invoke the
In Dagupan, the injunction was issued in the place where the order of
first exception. The second one, the defendant here is performing acts
disconnection was made (Quezon City) but the act of disconnecting the
electricity was made in Dagupan. outside the court’s jurisdiction. However, the defendant corporation is
within territorial jurisdiction of the court. The principal place of business
In Decano, the injunction was issued in Pangasinan, the decision or
order of dismissal emanated from Quezon city and the act of dismissing is within the territorial jurisdiction.
the employee was done in Dagupan.
Why is it? What is the rationale of the second exception? For as long as
the court has jurisdiction within the principle business of the corporation.
Where the acts committed? Dagupan City and the court issue
In this case, the exception will apply.
the injunction is Quezon City Court
So, the court here assumes all the decisions of the corporation are made
So, if one party resides in Davao City and the other resides in
in the principle business where the acts emanates. That is enough for
Cebu, the act to be implemented is in Manila, can you invoke
the court to issue an injunction or acts committed outside its jurisdiction.
the exception on the ground that the case is filed in the place
So, in an action, the plaintiff is Davao based and the defendant is Cebu,
of the plaintiff in Davao City? Can the D.C court issue an
the action to be enjoined are in Manila. For you to get an injunction is
injunction against defendant in Cebu of acts to be implemented
where you file the case. You can either in Cebu or Manila. You have to
in Manila.?
file in the residence of the plaintiff or the residence of the defendant.
 NO!
If you are asking injunction against the corporation, you have no choice,
So, if the parties does not reside in the same place, the you have to file it in the place of the residence…. Then you can ask for
exception does not apply? the injunction to be performed outside even if the acts outside of the
How do you determine the residence of corporation? principal place of the business.
 You go the articles of Incorporation…
As to the Dagupan case, was there a violation of the doctrine
Do not …..!!!!!…… ( Maam got Mad!    ) …Relax, Take it of non-jurisdiction?
easy… Chill  No. Because the principal place of business of the corporation is within
the territorial jurisdiction of the court issuing the preliminary writ of
jurisdiction. This is irrespective of the fact the acts will be made
Ma’am: What is important is the jurisdiction within the territorial somewhere else.

jurisdiction. Ang defendant nasa sa Cebu , ikaw nasa Davao and acts
you want to enjoin are in Manila… (tapped the table) It cannot be!!! Key Elements:
Kaya tinatanong ko what are the parameters. You cannot say Exception (1)
corporation and the acts to be performed outside… its too general… The 1. Government Agencies
acts to be enjoined are to be performed outside of the court’s jurisdiction
2. Legality of Decisions
emanating from defendant who is a corporation within the territorial of
the court!!! That’s when you apply the jurisdiction. Those are the
3. Enforcement of decisions outside the main office

parameters of the exception comparing to the first exception. The Exception (2)

exception is that the implementation is within the territorial jurisdiction 1. Private Corporations
of the court… the defendant who made the decision is outside the 2. Implementation of decisions is outside the principal place of
court… business

This apply to corporations, private corporation. The first one is national Kindly read the two cases to properly differentiate.
government agency, private corporation, second. It does not matter

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Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

The case of Dagupan actually falls in the general rule. FACTS:


There was a case here in Davao, it was Del Monte vs. Lapanday.
There was a violation of non-compete clause. An executive of Del Monte  Petitioner filed a separate petition for the issuance of TRO and
was pirated by Lapanday. a writ of preliminary injunction with the appellate court, also
The remedy applied was injunction. But that executive was already to enjoin the implementation of the writ of possession issued
performing services for Lapanday. The question raised was where it by Muntinlupa RTC. In its petition, petitioner alleged that its
would be proper to enforce the injunction here in Davao City. complaint-in-intervention in Civil Case No. 00-196 pending in
The rule there, even if the acts to be performed beyond the jurisdiction Branch 256 in its principal action but as the said court could
of the court, if the corporation issuing the decision is within the court‘s not enjoin Branch 276 from implementing the writ of
jurisdiction then the injunction could be properly enforced. possession, both courts being of equal jurisdiction, it had no
If you file an injunction in the court where the action is to be choice but to file the petition with the appellate court.
implemented while the court is residing somewhere else, the issue  CA denied petitioner’s prayer for the insuance of a writ
which could be raised is that of venue. Why? Because when you file a preliminary injunction.
personal action like an injunction, it has to be the place of either the
plaintiff of the defendant. So if neither of the parties are residing in the CAN THE COURT OF APPEALS ENTERTAIN AN ORIGINAL ACTION FOR
place of court, then there might be some jurisdictional defect. INJUNCTION?
So you have to review again the Rule on Jurisdiction.
Take note, while a preliminary attachment could be implemented No. An original action for injunction is outside the jurisdicion of
wherever in the country, the WPI is limited by the doctrine of non- Court of Appeals, however. Under B.P 129, the appellate court has
jurisdiction. original jurisdiction only over actions for annulment of judgements of
Maam: TAKE NOTE OF THE EXCEPTION!!! the RTCs and has original jurisdiction to issue writs of mandamus,
probihition, certiorari, habeas corpus and quo warranto, an auxiliary
writs or processes whether or not they are in aid of its appellate
What are the main action where you can ask for the provisional jurisdiction.
remedies of Injunction? What is the main action for injunction?
But it may grant a prayer for preliminary injunction. The
Can you have injunction and your provisional remedy is appellate court’s jurisdiction to grant a writ of preliminary injunction is
limited to actions or proceedings pending before it, as Section 2
attachment?
of Rule 58 of the Rules clearly provides:
Has the CA have jurisdiction on a main action for injunction?
Or is there a main action for injunction? SECTION 2. Who may grant preliminary injunction. – A preliminary
injunction may be granted by the court where the action or proceeding
There is a main action for injunction but the CA has no jurisdiction. In is pending . xxx
the case of ALLGEMEINE-BAU-CHEMIE vs. METROBANK, the SC
held that An original action for injunction is outside the jurisdiction of Or in petition for centiorari, prohibition or mandamus under Section 7 of
the Court of Appeals, however. Under B.P. 129, the appellate court has Rule 65, thus:
original jurisdiction only over actions for annulment of judgments of the
RTCs and has original jurisdiction to issue writs of mandamus, SECTION 7. Expediting proceedings, injunctive relief. – The court in
prohibition, certiorari, habeas corpus and quo warranto, and auxiliary which the petition is filed may issue orders expediting the proceeding,
writs or processes whether or not they are in aid of its appellate and it may also grant a temporary restraining order or a writ of
jurisdiction. preliminary injunction for the preservation of the rights of the parties
But it may grant a prayer for preliminary injunction. The appellate pending such proceedings. The petition shall not interrupt the course
court‘s jurisdiction to grant a writ of preliminary injunction is limited to of the principal case unless a temporary restraining order or a writ of
actions or proceedings pending before it. preliminary injunction has been issued against the public respondent
What is the difference of an action for Injunction and the Writ of from further proceeding in the case.
Preliminary Injunction?
The main action for injunction seeks a judgment embodying a final Can the court enjoin decision of Civil Service Commission?
injunction which is distinct from, and should not be confused with, the Yes. Neither the Administrative Code nor the CSC rules deprive courts
provisional remedy of preliminary injunction, the sole object of which is of their power to grant restraining orders or preliminary injunctions to
to preserve the status quo until the merits can be heard. stay the execution of CSC decisions pending appeal.
Furthermore, Section 82 of Rule VI of CSC Memorandum Circular
A preliminary injunction, on the other hand, is granted at any stage of 19-99 recognizes the authority of the CA and the Supreme Court to
an action or proceeding prior to the judgment or final order. It persists issue restraining orders or injunctions.
until it is dissolved or until the termination of the action without the Having appellate jurisdiction over decisions of the CSC, the CA clearly
court issuing a final injunction. has the discretion to issue an ancillary writ of preliminary injunction to
A main action of injunction is in the same specie as that of a specific secure the rights of private respondent pending appeal of his dismissal.
performance, specifically if such requires the performance of a
particular act or acts. If the obligation in a contract is the obligation CSC vs. CA G.R. No. 159696 November 17, 2005
NOT TO DO (i.e. a non-compete clause), then the remedy for specific FACTS:
performance could be in a form of injunction. So the aggrieved may file
a main action for injunction, that is the primary remedy. The ancillary  Gannapao filed a petition for review with CA assailing the
would be the preliminary writ of injunction. resolution of CSC.
In a main case for injunction, you must be able to show the court that  CA issued a Resolution granting Gannapao’s motion for
you are entitled to the main action or you have strong grounds, to issuance of a writ of preliminary injunction enjoining
warrant for the court to issue the provisional remedy of preliminary restraining and prohibiting CSC from implementing its assailed
injunction. CSC Resolution.

CAN THE COURT OF APPEALS ISSUE PRELIMINARY


ALLGEMEINE-BAU-CHEMIE vs. METROBANK INJUNCTION ENJOINING THE DECISION OF CSC PENDING
G.R. No. 15929 February 10, 2006 APPEAL?

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Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

Yes. Neither the Administrative Code nor the CSC rules deprive DOES THE NATIONAL COMMISSION FOR INDIGENOUS PEOPLE
courts of their power to grant restraining orders or preliminary HAVE JURISDICTION TO ISSUE WRITS OF PRELIMINARY
injunctions to stay the execution of CSC decisions pending INJUNCTION?
appeal.
Yes. As can be gleaned from the foregoing provisions, the NCIP may
Furthermore, Section 82 of Rule VI of CSC Memorandum Circular issue temporary restraining orders and writs of injunction
19-99 recognizes the authority of the CA and the Supeme Court to issue without any prohibition against the issuance of the writ when
restraining orders or injunctions. the main action is for injunction.

SECTION 82. Effect of Pendency of Petition for The power to issue temporary restraining orders or writs of injunction
Review/Centiorari with the Court – The filing and pendency of a allows parties to dispute over which the NCIP has jurisdiction
petition for review with the Court of Appeals or centiorari with the to seek relief against any action which may cause them grave
Supreme Court shall not stop the execution of the final decision of the or irreparable damage or injury. In this case, the Regional Hearing
commission unless the Court issues a restraining order or an injunction. Officer issued the injunctive writ because its jurisdiction was called upon
(Emphasis provided) to protect and preserve the rights of private respondents who are
undoubtedly members of ICCs/IPs.
Having appellate jurisdiction over decisions of the CSC the CA clearly has
the discretion to issue an ancillary writ of preliminary injunction to secure Parenthetically, in order to reinforce the powers of the NCIP, thhe IPRA
the rights of private respondent pending appeal of his dismissal. even provides that no restraining order or preliminary injunction
may be issued by any inferior court against the NCIP in any
WHAT IS THE MODE APPEAL ON DECISIONS OF CSC? Petition for case, dispute or controversy arising from or necessary to the
review under Rule 43 interpretation of the IPRA and other laws relating to ICCs/Ips
and ancestral domains.
Can the NCIP have jurisdiction to issue writs of preliminary
injunction?
In City of Baguio vs. Masweng, YES. As can be gleaned from the WHAT IS THE BASIS FOR THE POWER OF THE NCIP TO ISSUE
foregoing provisions, the NCIP may issue temporary restraining orders INJUNCTIVE RELIEF?
and writs of injunction without any prohibition against the issuance of
the writ when the main action is for injunction. Sec. 69. Quasi-judicial Power of the NCIP – The NCIP shall have
the power and authority.
The power to issue temporary restraining orders or writs of injunction
allows parties to a dispute over which the NCIP has jurisdiction to seek d) to enjoin any or all acts involving or arising from any case
relief against any action which may cause them grave or irreparable pending before it which, if not restrained forthwith, may
damage or injury. In this case, the Regional Hearing Officer issued the
cause grave or irreparable damage to any of the parties to the
injunctive writ because its jurisdiction was called upon to protect and case or seriously affect social or econaomic activity.
preserve the rights of private respondents who are undoubtedly
members of ICCs/IPs.
REYES vs. DEMETRIA A.M. No. CA-01-32. January 14, 2003

Can courts issue injunction against the NCIP? Even only one (1) member of the Court of Appeals may issue a
As mentioned in the same case, in order to reinforce the powers of the temporary restraining order. Nevertheless we maintain that the
NCIP, the IPRA even provides that no restraining order or preliminary issuance of temporary restraining order by only one or two
injunction may be issued by any inferior court against the NCIP in any justices of the Court of Appeals must be exercised sparingly,
case, dispute or controversy arising from or necessary to the that is, only in case of extreme necessity where there is
interpretation of the IPRA and other laws relating to ICCs/IPs and compelling reason to abate or avoid a grave injury to a party.
ancestral domains.
Can the CA issue a TRO or WPI? Does it have to be always a
collegiate decision? Can local taxes be enjoined?
Yes, the CA may issue but it does not have to be always a collegiate Yes, the courts can enjoin but only if it‘s local taxes. If it‘s under the
decision. NIRC (national taxes), the court cannot issue injunction as taxes are
You mean a lone justice may issue a WPI? the lifeblood of the government.
In the case of Reyes vs. Demetria, even only one (1) member of the
Court of Appeals may issue a temporary restraining order. How about extrajudicial foreclosure? Can the court enjoin extrajudicial
Nevertheless, we maintain that the issuance of temporary restraining foreclosure? Yes.
order by only one or two justices of the Court of Appeals must be Under what conditions?
exercised sparingly, that is, only in case of extreme necessity where See AM 99-10-50-0. The AM lays down the conditions on when
there is compelling reason to abate or avoid a grave injury to a party. injunction can be issued against extra judicial foreclosure.
Angeles City vs Angeles City Electric Corp.: In the case of Angeles,
do the courts have the power to enjoin the collection of taxes?
CITY GOVT OF BAGUIO vs. MASWENG
G.R. No. 180206 February 4, 2009 MA’AM: Okay, under NIRC, there is no prohibition in the issuance of
injunction against collection of local taxes. In the local Gov’t Code,
FACTS: there is also no prohibition. Unlike in the collection of national taxes…
where there is expressed prohibition in issuance of injunction…. So, If
 Private Respondents filed a petition for injunction with prayer the collection of National taxes cannot be enjoined. I have experience
for issuance of TRO and/or writ PI against the Office of the in the CA….and we have apply… ( Maam shared her experience to the
City Mayor of Baguio before NCIP-CAR class )
 NCIP granted the application for PI: CA affirmed.
September 1, 2018 (makeup class). ICFC

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Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

What are the requisites for the issuance of a writ of preliminary result would be the stoppage of the operations of respondents' radio
injunction? stations, consequently, losing its listenership, and tarnishing the image
1. 1.Existence of a clear and unmistakable right that must be that it has built over time. It does not stretch one's imagination to see
protected. that the cost of a destroyed image is significantly the loss of its good
2. An urgent and paramount necessity for the writ to prevent name and reputation. As aptly appreciated by the appellate court, the
serious damage value of a radio station's image and reputation are not quantifiable in
terms of monetary value.
What is a right in esse?
A right in esse means a clear and unmistakable right. A party seeking to How about if the mortgagee is a government financial
avail of an injunctive relief must prove that he or she possesses a right institution? Can there be a right in esse to enjoin the
in esse or one that is actual or existing. It should not be contingent, foreclosure?
abstract, or future rights, or one which may never arise.

How do you determine if there is a right in esse? In copyright cases, can there be a right in esse to enjoin the use
the matter of the issuance of a writ of preliminary injunction is addressed of musical compositions?
to the sound discretion of the trial court, unless the court commits grave
abuse of discretion. No. In the case of Bayanihan Music v BMG Records, respondent
Chan, being undeniably the composer and author of the lyrics of the two
In the case of Boncodin v Necu is there a clear and songs, is protected by the mere fact alone that he is the creator thereof,
unmistakable right? (1:26) conformably with Republic Act No. 8293, otherwise known as
the Intellectual Property Code, Section 172.2 of which reads:
There was no clear and unmistakable right. In the present case, because 172.2. Works are protected by the sole fact of their creation, irrespective
the validity of their implementation was fundamentally assailed, the step of their mode or form of expression, as well as of their content, quality
increments enjoyed by the Napocor employees could not have ripened and purpose.
into vested rights. In brief, it is seriously contended that, because they
were granted without the required DBM approval, no vested rights to What act was sought to be enjoined here?
the step increments could have been acquired. the use of the composer chan and BMG records of the use of the 2
songs.
What was the right being enforced in the case of Boncodin?
The salary increase based on circulars. So in this case, is there a right in esse?
No. It would thus appear that the two contracts expired on October 1,
Can government infrastructure projects be enjoined? 1975 and March 11, 1978, respectively, there being neither an
In the case of Bangus Fry v Lanzanas, the Presidential Decree No. allegation, much less proof, that petitioner Bayanihan ever made use of
1818 ("PD No. 1818") prohibited courts from issuing injunctive writs the compositions within the two-year period agreed upon by the parties.
against government infrastructure projects like the mooring facility in
the present case. But in the case of Hernandez v NAPOCOR, the It is noted that Chan revoked and terminated said contracts, along with
petitioners sought the issuance of a preliminary injunction on the ground others, on July 30, 1997, or almost two years before petitioner
that the NAPOCOR Project impinged on their right to health as enshrined Bayanihan wrote its sort of complaint/demand letter dated December 7,
in Article II, Section 15 of the 1987 Constitution. Here, there is adequate 1999 regarding the recent "use/recording of the songs 'Can We Just
evidence on record to justify the conclusion that the project of NAPOCOR Stop and Talk A While' and 'Afraid for Love to Fade,'" or almost three
probably imperils the health and safety of the petitioners so as to justify years before petitioner filed its complaint on August 8, 2000.
the issuance by the trial court of a writ of preliminary injunction. Indeed,
the court should grant the writ of preliminary injunction if the purpose In the case of Bangus Fisher Folk v Lanzanas, is there a right in
of the other party is to shield a wrongdoing pending the final resolution esse?
of whether the project infringes petitioner’s right to health.
No maam. Presidential Decree No. 1818 prohibited courts from issuing
What is the basis of the right in esse? injunctive writs against government infrastructure projects like the
A clear legal right means one clearly founded on or granted by law or is mooring facility in the present case. In any event, there is no dispute
enforceable as a matter of law. that NAPOCOR will use the mooring facility for its power barge that will
supply 14.4 megawatts of electricity to the entire province of Oriental
What about contracts? Can it be a basis? Mindoro, including Puerto Galera. The mooring facility is obviously a
Umm.. government-owned public infrastructure intended to serve a basic need
of the people of Oriental Mindoro. The mooring facility is not a
How about in cases of foreclosure, can there be a right in esse "commercial structure; commercial or semi-commercial wharf or
to enjoin foreclosure of mortgages? commercial docking" as contemplated in Section 1 of PD No. 1605.
in the case of PNB v RJ Ventures, For a Writ of Preliminary Injunction Therefore, the issuance of the ECC does not violate PD No. 1605 which
to issue, the following requisites must be present, to wit: (1) the applies only to commercial structures like wharves, marinas, hotels and
existence of a clear and unmistakable right that must be protected, and restaurants.
(2) an urgent and paramount necessity for the writ to prevent serious
damage. In the case of MIAA v CA, is there a right in esse?

Respondents were able to establish a clear and unmistakable right to No maam. The available records show, and the parties do not dispute,
the possession of the subject collaterals. Evidently, as owner of the that the last contract between MIAA and K Services had already expired.
subject collaterals that stand to be extrajudicially foreclosed, K Services’ claim to an "Extended/Expanded Contract" is anchored on
respondents are entitled to the possession and protection thereof. RBN the letter of May 31, 1991 from General Manager Carrascoso. However,
as the owner and operator of the subject radio equipment and radio this letter expressly stipulated that the extension would only be "until
stations have a clear right over them. further notice" from MIAA.

It behooves this court to appreciate the unique character of the The trial court neglected to mention what right in esse of K Services, if
collaterals that stand to be affected should the Writ of Preliminary any, was in danger of being violated and required the protection of a
Injunction be dissolved as PNB would have it. The direct and inevitable preliminary injunction. The trial court stated merely that K Services was

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Based on the lectures of Atty Tiu
3 – Manresa 2018 Ateneo de Davao University

servicing MIAA as a porterage contractor and that a notice of termination (3) Such subsequent use defames petitioners’ mark.
was sent to K Services. Absent a preliminary finding by the trial court
that K Services possessed the right to continue as MIAA’s In the case at bar, petitioners have yet to establish whether "Dockers
concessionaire, MIAA’s termination of K Services’ was not sufficient in and Design" has acquired a strong degree of distinctiveness and whether
itself to establish that there was an invasion of K Services’ right. the other two elements are present for their cause to fall within the
ambit of the invoked protection. The Trends MBL Survey Report which
In the case of FEBTC v CA is there a right in esse? petitioners presented in a bid to establish that there was confusing
No maam. In this case, Pacific Banking Corporation (PBC) was placed similarity between two marks is not sufficient proof of any dilution that
under receivership by the Central Bank. Petitioner Far East Bank and the trial court must enjoin.
Trust Company (FEBTC) submitted its formal offer to purchase all the
assets of PBC. PBC's liquidator consistently refused to execute said In the case of Elidad Kho v CA is there a right in esse?
deeds of sale and proceeded to offer for bidding to third parties the
subject fixed assets. The trial court, as affirmed by the respondent Court No maam. The petitioner's complaint alleges that she is the registered
of Appeals, found that the subject fixed assets were indeed submitted owner of the copyrights Chin Chun Su and Oval Facial Cream
as collaterals with the Central Bank, and therefore were among the items Container/Case, as shown by Certificates of Copyright Registration and
not covered by the Purchase Agreement signed by the parties pursuant that respondent Summerville advertised and sold petitioner's cream
to the Memorandum of Agreement. Hence, the inescapable conclusion products under the brand name Chin Chun Su, in similar containers that
is the petitioner never acquired ownership over these properties. petitioner uses, thereby misleading the public, and resulting in the
decline in the petitioner's business sales and income; and, that the
In Levi Strauss v Clinton Apparelle is there a right in esse? No respondents should be enjoined from allegedly infringing on the
maam. What was sought to be enjoined here? The use of the copyrights and patents of the petitioner.
trademark “Paddocks” as it allegedly infringed the trademark of
petitioner which is the “Dockers and Design” According to the SC, Consequently, a preliminary injunction order cannot
be issued for the reason that the petitioner has not proven that she has
Petitioners’ right to injunctive relief has not been clearly and a clear right over the said name and container to the exclusion of others,
unmistakably demonstrated. The right has yet to be determined. not having proven that she has registered a trademark thereto or used
Petitioners also failed to show proof that there is material and substantial the same before anyone did.
invasion of their right to warrant the issuance of an injunctive writ. The petitioner's copyright and patent registration of the name and
Neither were petitioners able to show any urgent and permanent container would not guarantee her the right to the exclusive use of the
necessity for the writ to prevent serious damage. same for the reason that they are not appropriate subjects of the said
intellectual rights.
Given the single registration of the trademark "Dockers and Design" and
considering that respondent only uses the assailed device but a different What was the proper basis here to enjoin? Why was the
word mark, the right to prevent the latter from using the challenged registration presented not enough?
"Paddocks" device is far from clear. Stated otherwise, it is not evident
whether the single registration of the trademark "Dockers and Design" Petitioner has no right to support her claim for the exclusive use of the
confers on the owner the right to prevent the use of a fraction thereof subject trade name and its container. The name and container of a
in the course of trade. It is also unclear whether the use without the beauty cream product are proper subjects of a trademark inasmuch as
owner’s consent of a portion of a trademark registered in its entirety the same falls squarely within its definition. In order to be entitled to
constitutes material or substantial invasion of the owner’s right. exclusively use the same in the sale of the beauty cream product, the
user must sufficiently prove that she registered or used it before
It is likewise not settled whether the wing-shaped logo, as opposed to anybody else did. The petitioner's copyright and patent registration of
the word mark, is the dominant or central feature of petitioners’ the name and container would not guarantee her the right to the
trademark—the feature that prevails or is retained in the minds of the exclusive use of the same for the reason that they are not appropriate
public—an imitation of which creates the likelihood of deceiving the subjects of the said intellectual rights.
public and constitutes trademark infringement. In sum, there are vital
matters which have yet and may only be established through a full- In the case of Unilever v CA, is there a right in esse? Yes maam.
blown trial. What was the basis of the right? Intellectual Property Code. What
was the basis for the issuance of the injunction?
In trademark dilution cases, what is necessary in order to
establish the right in esse? Section 2 of PD 49 stipulates that the copyright for a work or intellectual
creation subsists from the moment of its creation. Accordingly, the
In the case of Levi Strauss v Clinton Apparelle, Trademark dilution creator acquires copyright for his work right upon its creation.… Contrary
is the lessening of the capacity of a famous mark to identify and to petitioner’s contention, the intellectual creator’s exercise and
distinguish goods or services, regardless of the presence or absence of: enjoyment of copyright for his work and the protection given by law to
(1) competition between the owner of the famous mark and other him is not contingent or dependent on any formality or registration.
parties; or
(2) likelihood of confusion, mistake or deception. The airing of TV commercials is necessarily of limited duration only.
Subject to the principles of equity, the owner of a famous mark is Without such temporary relief, any permanent injunction against the
entitled to an injunction "against another person’s commercial use in infringing TV advertisements of which P&GP may possibly succeed in
commerce of a mark or trade name, if such use begins after the mark getting after the main case is finally adjudicated could be illusory if by
has become famous and causes dilution of the distinctive quality of the then such advertisements are no longer used or aired by petitioner. It is
mark. This is intended to protect famous marks from subsequent uses therefore not difficult to perceive the possible irreparable damage which
that blur distinctiveness of the mark or tarnish or disparage it. P&GP may suffer if respondent Judge did not act promptly on its
application for preliminary injunction. Injunction is resorted to only
Based on the foregoing, to be eligible for protection from dilution, there when there is a pressing necessity to avoid injurious consequences
has to be a finding that: which cannot be remedied under any standard compensation. This
(1) The trademark sought to be protected is famous and Court takes note of the fact that the TV commercial in issue ― the Kite
distinctive; TV advertisement ― is no longer aired today, more than 10 years after
(2) The use by respondent of "Paddocks and Design" began after the injunction was granted on September 16, 1994.
the petitioners’ mark became famous; and

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Is registration of your intellectual property necessary for you In CSC v CA, what should the order granting the writ of
to enjoin the infringement thereof. In order to establish your injunction contain? It should contain the basis for the issuance of the
right in esse over your intellectual property, must you present writ
in court your registration from the intellectual property office?
Must there be an actual violation of the right before injunctive
Not always the case like in the case at bar. writ may be issued? No.
Sec. 3. Grounds for issuance of preliminary injunction.
Maam: The right in esse must be based on a law. a clear and
unmistakable right. You have to have a legal basis for it. As to the A preliminary injunction may be granted when it is established:
registration, even if there is no registration as long as you are the owner,
you are the creator, you are protected by the IPC. Take note this only (a) That the applicant is entitled to the relief demanded, and the
applies to COPYRIGHTS not trademarks. In the case of Elidad, they whole or part of such relief consists in restraining the commission or
acquired copyright and patent registration for something that should’ve continuance of the act or acts complained of, or in requiring the
been covered by trademark registration. Just because you created the performance of an act or acts, either for a limited period or
trademark and you did not register, you cannot apply the same principle perpetually;
as this is only for COPYRIGHTS. (b) That the commission, continuance or non-performance of the act
or acts complained of during the litigation would probably work
Can there be a right in esse to prevent the public sale of injustice to the applicant; or
property or the payment of local taxes? (c) That a party, court, agency or a person is doing, threatening, or
is attempting to do, or is procuring or suffering to be done, some act
Yes. In the case of Talento v Escalada, The urgency and paramount or acts probably in violation of the rights of the applicant respecting
necessity for the issuance of a writ of injunction becomes relevant in the the subject of the action or proceeding, and tending to render the
instant case considering that what is being enjoined is the sale by public judgment ineffectual.
auction of the properties of Petron amounting to at least P1.7 billion and
which properties are vital to its business operations. If at all, the In the case of Hernandez v Napocor is there a right in esse? Yes.
repercussions and far-reaching implications of the sale of these What was the act sought to be enjoined with? the construction of
properties on the operations of Petron merit the issuance of a writ of 29 decagon-shaped steel poles or towers with a height of 53.4 meters
preliminary injunction in its favor. to support overhead high tension cables in connection with its 230
Kilovolt Sucat-Araneta-Balintawak Power Transmission Project.
We are not unaware of the doctrine that taxes are the lifeblood of the
government, without which it cannot properly perform its functions; and How was the right established?
that appeal shall not suspend the collection of realty taxes. However, Petitioners sought the issuance of a preliminary injunction on the ground
there is an exception to the foregoing rule, i.e., where the taxpayer has that the NAPOCOR Project impinged on their right to health as enshrined
shown a clear and unmistakable right to refuse or to hold in abeyance in Article II, Section 15 of the 1987 Constitution. Here, there is adequate
the payment of taxes. evidence on record to justify the conclusion that the project of NAPOCOR
probably imperils the health and safety of the petitioners so as to justify
In the instant case, we note that respondent contested the revised the issuance by the trial court of a writ of preliminary injunction.
assessment on the following grounds: that the subject assessment
pertained to properties that have been previously declared; What was the basis of the right of the right asserted? The right
a. That the assessment covered periods of more than 10 years to health as enshrined in Article II, Section 15 of the 1987 Constitution.
which is not allowed under the LGC;
b. That the fair market value or replacement cost used by Is that enough basis for the issuance of the injunction? Are
petitioner included items which should be properly excluded; mere policy statements under the Constitution enough for the
that prompt payment of discounts were not considered in basis for the right in esse?
determining the fair market value; and
c. That the subject assessment should take effect a year after or No maam. Aside from the basis, there must be adequate evidence on
on January 1, 2008. record to justify the issuance of the writ. In the case at bar, Petitioners
adduced in evidence copies of studies linking the incidence of illnesses
What is the basis of the right in esse here? The LGC. The such as cancer and leukemia to exposure to electromagnetic fields.
assessment covered periods of more than 10 years which is not allowed Equally important, we take judicial notice that the area alluded to as
under the Local Government Code (LGC). According to Petron, the location of the NAPOCOR project is a fragile zone being proximate to
possible valid assessment pursuant to Section 222 of the LGC could only local earthquake faults, particularly the Marikina fault, among other
be for the years 1997 to 2006. zones. This is not to mention the risks of falling structures caused by
killer tornadoes and super typhoons, the Philippines, especially Central
In CSC v CA is there a right in esse? Yes maam. What was the Luzon, being situated along the typhoon belt.
basis? In this case, the court used “in the interest of justice and fair
play” Moreover, the Local Government Code, requires conference with the
affected communities of a government project. NAPOCOR, palpably,
The assailed Order does not state the basis for the issuance of a writ of made a shortcut to this requirement. In fact, there appears a lack of
preliminary injunction. The CA made no findings of fact or law indicating exhaustive feasibility studies on NAPOCOR’s part before making a go
that any of the elements essential for the grant of an injunctive writ with the project on hand; otherwise, it should have anticipated the legal
existed. (There was a violation of the right to due process in this case) labyrinth it is now caught in.
Nevertheless, in the interest of justice and fair play, this Court
scrutinized the records of the case and, indeed, found sufficient grounds These are facts, which the trial court could not ignore, and form as
for the grant of the injunctive Writ. Prior to the finality of the CSC sufficient basis to engender the cloud of doubt that the NAPOCOR
Decision dismissing him, private respondent has a clear and project could, indeed, endanger the lives of the petitioners. A preliminary
unmistakable right to his current position in the police service. injunction is likewise justified prior to a final determination of the issues
Unquestionably, the right to employment, oftentimes the lowly of whether or not NAPOCOR ignored safety and consultation
employee’s only noble source of bread and butter, is entitled to requirements in the questioned project. Indeed, the court could,
protection by the State. nay should, grant the writ of preliminary injunction if the purpose of
the other party is to shield a wrongdoing.

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However, where the summons could not be served


Maam: Actual violation of the right is not necessary as long as you are personally or by substituted service despite diligent efforts,
able to establish your right in esse. The basic requirement will be a right or the adverse party is a resident of the Philippines
in esse and that should be based on law. temporarily absent therefrom or is a nonresident thereof,
the requirement of prior or contemporaneous service of
So whenever you encounter cases of injunction you always have to look summons shall not apply.
for the LEGAL BASIS of the right asserted. If there is none, then there
is no basis for the issuance of the injunctive writ even if there is d) The application for a temporary restraining order shall
emergency, even if there is a violation or potential violation of a right, thereafter be acted upon only after all parties are heard in
there is no right established by law. in the first place there should be no a summary hearing which shall be conducted within
issuance of the injunctive writ. So that is the basic element that you twenty-four (24) hours after the sheriff’s return of service
should look into before you can ask for the injunctive writ. and/or the records are received by the branch selected by
raffle and to which the records shall be transmitted
When the court determines the right in esse, which is the basis immediately.
for the entitlement of the writ, what is the nature of such
determination made by the court? What should the affidavit contain? shows facts entitling the
applicant to the relief demanded
in the case of OWWA v Chavez, A writ of preliminary injunction is
generally based solely on initial and incomplete evidence. The evidence What is the amount of the bond? amount to be fixed by the court
submitted during the hearing on an application for a writ of preliminary
injunction is not conclusive or complete for only a "sampling" is needed Is the bond an indispensable requirement for the issuance of
to give the trial court an idea of the justification for the preliminary the writ? No maam. The following cases do not require the filing of a
injunction pending the decision of the case on the merits. In fact, the bond:
evidence required to justify the issuance of a writ of preliminary 1. When it appears that the enjoined party will not suffer any
injunction in the hearing thereon need not be conclusive or complete. damage
2. Status quo orders
What is irreparable injury? Damages are irreparable where there is 3. Other cases exempted by the court
no standard by which their amount can be measured with reasonable
accuracy. When a court issues a TRO, is it required that a bond be posted?

Is irreparable injury a requisite for the issuance of the Yes maam. In the case of Universal Motors v Rojas, a temporary
injunctive writ? restraining order has been elevated to the same level as a preliminary
injunction in the procedure, grounds and requirements for its
In the case of PNB v RJ Ventures, the very foundation of the obtention. Specifically on the matter of the requisite bond, the present
jurisdiction to issue a writ of injunction rests in the existence of a cause requirement therefor not only for a preliminary injunction but also for a
of action and in the probability of irreparable injury, inadequacy of restraining order, unless exempted therefrom by the court, puts to rest
pecuniary compensation and the prevention of multiplicity of suits. a controversial policy which was either wittingly or unwittingly abused.

What are the procedural requisites for the issuance of the writ? Distinguish preliminary injunction from a TRO
Preliminary injunction TRO
Sec. 4. Verified application and bond for preliminary injunction or Last until dissolved (usually) Lasts for 20 days or 72 hours
temporary restraining order. Always requires a hearing May be issued ex-parte
File a bond No bond requirement
A preliminary injunction or temporary restraining order may be
granted only when: How many kinds of TRO are there under the Rules? 2
a) The application in the action or proceeding is verified, and 1. 72-hour Ex-parte TRO issued by the executive judge
shows facts entitling the applicant to the relief demanded; 2. 20-day TRO issued by a presiding judge
and
When will the executive judge issue a TRO? Upon the filing of the
b) Unless exempted by the court, the applicant files with the complaint, but before raffle. What type of TRO will be issued? 72-
court where the action or proceeding is pending, a bond hour TRO
executed to the party or person enjoined, in an amount to Sec. 5. Preliminary injunction not granted without notice;
be fixed by the court, to the effect that the applicant will exception.
pay to such party or person all damages which he may
sustain by reason of the injunction or temporary No preliminary injunction shall be granted without hearing and prior
restraining order if the court should finally decide that the notice to the party or person sought to be enjoined. If it shall appear
applicant was not entitled thereto. Upon approval of the from facts shown by affidavits or by the verified application that great
requisite bond, a writ of preliminary injunction shall be or irreparable injury would result to the applicant before the matter
issued. can be heard on notice, the court to which the application for
preliminary injunction was made, may issue ex parte a temporary
c) When an application for a writ of preliminary injunction or restraining order to be effective only for a period of twenty (20) days
a temporary restraining order is included in a complaint or from service on the party or person sought to be enjoined, except as
any initiatory pleading, the case, if filed in a multiple-sala herein provided. Within the said twenty-day period, the court must
court, shall be raffled only after notice to and in the order said party or person to show cause, at a specified time and
presence of the adverse party or the person to be place, why the injunction should not be granted, determine within
enjoined. In any event, such notice shall be preceded, or the same period whether or not the preliminary injunction shall be
contemporaneously accompanied, by service of summons, granted, and accordingly issue the corresponding order.
together with a copy of the complaint or initiatory pleading
and the applicant’s affidavit and bond, upon the adverse However, and subject to the provisions of the preceding sections, if
party in the Philippines. the matter is of extreme urgency and the applicant will suffer grave

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injustice and irreparable injury, the executive judge of a multiple-sala


court or the presiding judge of a single-sala court may issue ex parte
September 4, 2018 EBL
a temporary restraining order effective for only seventy-two (72)
Rule 58, Section 4 (c)
hours from issuance but he shall immediately comply with the
Q: When is service of summons necessary?
provisions of the next preceding section as to service of summons
- As provided in Sec 4 (c), when an application for a writ of
and the documents to be served therewith. Thereafter, within the
preliminary injunction or a TRO is included in a complaint or
aforesaid seventy-two (72) hours, the judge before whom the case
any initiatory pleading, the case, if filed in a multiple-sala
is pending shall conduct a summary hearing to determine whether
court, shall be raffled only after notice to and in the
the temporary restraining order shall be extended until the
presence of the adverse party or the person to be enjoined.
application for preliminary injunction can be heard. In no case shall
- In any event, such notice SHALL be preceded, or
the total period of effectivity of the temporary restraining order
contemporaneously accompanied, BY SERVICE OF
exceed twenty (20) days, including the original seventy-two hours
SUMMONS, together with a copy of the complaint or
provided herein.
initiatory pleading and the applicant's affidavit and bond, upon
the adverse party in the Philippines.
In the event that the application for preliminary injunction is denied
or not resolved within the said period, the temporary restraining
Q: When do you dispense of the service of summons?
order is deemed automatically vacated. The effectivity of a temporary
- Sec 4 (c) provides where the SUMMONS COULD NOT BE
restraining order is not extendible without need of any judicial
SERVED personally or by substituted service despite diligent
declaration to that effect and no court shall have authority to extend
efforts, or the adverse party is a resident of the Philippines
or renew the same on the same ground for which it was issued.
temporarily absent therefrom or is a non-resident thereof, the
requirement of prior or contemporaneous service of
However, if issued by the Court of Appeals or a member thereof, the
summons shall not apply.
temporary restraining order shall be effective for sixty (60) days from
service on the party or person sought to be enjoined. A restraining
Q: Under what stage of proceedings should there be service of summons
order issued by the Supreme Court or a member thereof shall be
effective until further orders.
Q: Is the raffle of the case part of the issuance of the writ? Is it part of
the procedure for issuance of the writ?
What about the TRO issued by the judge? How long will it last
and how will it be issued?
Q: What is the nature of this requirement of notice of raffle? Is this
mandatory?
The court to which the application for preliminary injunction was made,
may issue ex parte a temporary restraining order to be effective only for
Q: Is it necessary that the adverse party or the defendant is present in
a period of twenty (20) days from service on the party or person sought
the raffling of the case?
to be enjoined, except as herein provided.
Can the injuctive writ be issued ex-parte?
Q: Supposed there is no notice for the raffling of the case given to the
defendant or the adverse party, will that affect the validity issuance of
No maam. No preliminary injunction shall be granted without hearing
the writ?
and prior notice to the party or person sought to be enjoined. That is
why there is TRO. It is the provisional remedy of the provisional remedy
 Q: When the application of the writ is NOT found in the initiatory
pleading, but in a motion or a separate pleading, is there is a need for
Maam: so it is only an TRO, not an injunctive writ if there is no notice to the notice to the adverse party for the raffling of the case?
the adverse party. There should be a notice and hearing for the issuance
of the injunctive writ. The only exception is the 72-hpur TRO issued by Q: When the pleading is amended to include an application for
the executive judge. injunction, does that require notice to the adverse party for the raffling
of the case?
What happens is the application for the injunctive writ is - No. As held in the case of PESAYCO V. LAYAGE, there is no
included in the initiatory pleading? What is the procedure? rule of procedure that authorizes the re-raffling of a case by
reason of an amendment of a complaint to include a prayer
Under sec 4 (c) Rule 58, When an application for a writ of preliminary for preliminary injunction or a TRO. Neither had there been
injunction or a temporary restraining order is included in a complaint or jurisprudence holding that such re-raffling should be done. It
any initiatory pleading, the case, if filed in a multiple-sala court, shall be would be absurd to require the sending out of notices for a
raffled only after notice to and in the presence of the adverse party or non- existent raffle.
the person to be enjoined. In any event, such notice shall be preceded, - You do not need a raffling of the case when the complaint is
or contemporaneously accompanied, by service of summons, together amended to include an injunctive application. Because by
with a copy of the complaint or initiatory pleading and the applicant’s then, it is obvious that the case is already raffled.
affidavit and bond, upon the adverse party in the Philippines. - You only need to notify the defendant of the raffling of the
case when the complaint has not yet been raffled.
However, where the summons could not be served personally or by - You only file motion to amend when the case has already been
substituted service despite diligent efforts, or the adverse party is a raffled and there is already a ground for the grant of the writ.
resident of the Philippines temporarily absent therefrom or is a - So when you apply for injunctive writ after the raffling of the
nonresident thereof, the requirement of prior or contemporaneous case, whether by an amendment of the complaint or by
service of summons shall not apply. separate motion, then you do not need to comply with the
notice of raffling to the adverse party. Because there is no
And if you cannot serve summons to the adverse party what need to raffle the case.
happens? - When you file a case in court, you go to RTC Office of the
Maam: If you cannot serve summons, it doesn’t mean that the court Clerk of Court. You pay the docket fee/ filing fee. Then that
cannot also issue an injunctive writ considering that notice to the office will automatically raffle the case. I don’t know if this is
adverse party must be given before the court may issue an injunctive still applied today. There is already an electronic raffling.
writ under section 5. - When you file a case and paid the docket fee, on the same
day, they will encode it in the computer and then they will
press the button, in a matter of seconds the case is already

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raffled. How can you notify the adverse party in a matter of - the presiding judge before whom the case is pending shall
seconds? conduct a summary hearing to determine whether the
- This has already become obsolete. In view of the e-raffling TRO shall be extended until the application for preliminary
being implemented by the court. injunction can be heard
- Unlike before when cases are raffled every week, manually.
- So this provision will have to be amended or revised to fit in Q: What if the presiding judge will not hear the case, how will make the
the present situation. application for the extension of the 72 hours TRO?
- Given that the raffling of the case is expedited under the e-
raffling, notice to the adverse party whenever you apply for
an injunctive writ, included an initiatory pleading, will no Q: If the ex parte 72 hours TRO has already lapsed, can the presiding
longer be applicable. In actual practice, it’s not really followed. hold hearing for the extension of the TRO?
For how many times that I applied for TRO, no notice was - No. The hearing must be conducted prior to the expiration
given. When I was granted with a 72 hours TRO, the executive of the 72-hour TRO.
judge did is have it raffled (special raffle). Because if I filed it - Within that 72 hour period, the case should have heard,
on Friday, I have to wait for it to be raffle on Thursday next raffled, the summons have been served together with
week. How can I file for the extension with the presiding judge the notice for the summary hearing and the presiding
if the TRO has already expired? So special raffle for that case judge should have conducted the summary hearing for
alone. After the special raffling in the Office of the Clerk of the extension of the TRO within the 72 hours.
Court, you already have a presiding judge and a branch of - If the summary hearing is held beyond the 72 hours
court. Then you to that branch clerk of court and the sheriff then that would be too late. There is nothing to extend
to prepare, issue and serve the summons, within that 72 because the 72 hours have already expired
hours.
- So where is it found that there is a need a notice of raffling to Q: Must the application for the writ be accompanied by affidavits?
the adverse party? In practice, NONE. That was never Supposing there is no affidavits, what is the effect?
practiced. - The application for preliminary injunction must be verified
and must show the facts entitling the applicant to the
Q: What is the obligation/ duty of the executive judge the moment he relief demanded (Sec 4 (a), Rule 58)
issues an ex parte TRO? - GR: Affidavit is indispensable. (application + affidavits)
- Under Rule 58, Sec 5, when an ex parte TRO is issued by the - In the case of EDITHA PALMA GIL V. LOPEZ, no affidavits
executive judge of a multiple-sala court or the presiding judge of the applicant and his witnesses were appended in his
of a single-sala court, effective for only 72 hours from application for injunction.
issuance, the judge shall - Ex: In the case of FORTUNE LIFE INSURANCE V.
 immediately comply with the provisions of Section 4 as LUCZON, it was held that the absence of an AFFIDAVIT OF
to service of summons and the documents to be served MERITS is not fatal where the petition itself, which is under
therewith oath, recites the circumstances or facts which constitutes the
 Thereafter, within the 72 hours, the judge before whom grounds of the petition.
the case is pending shall conduct a summary hearing to - If your application is general in nature. It does not recite the
determine whether the TRO shall be extended until the circumstances or facts which constitutes the grounds of the
application for preliminary injunction can be heard. petition and you did not attach the necessary affidavits,
 The judge shall order the party concerned to show cause specifying the facts and circumstances, then even if your
at a specified time and place, why the injunction should application is verified, your petition will still not be granted.
not be granted, determine within the same period
whether or not the preliminary injunction shall be Q: Can an executive judge issue a 20- day TRO?
granted and accordingly issue the corresponding order. - No. Only the presiding judge can issue a TRO valid for 20
days, including the 72 hours.
Q: How will the case reach the presiding judge?
- By raffle of the case
Q: What is an executive judge?
Q: Can the executive judge choose not to raffle the case after issuing - An executive judge supervises the raffling and assignment of
an ex parte TRO? all cases in a multiple- sala court.
- The ex parte TRO issued by the executive judge is no longer - An executive judge is an ordinary judge of the RTC or the
observed because of the e-raffling. The excutive judge may MTC. Except that he or she is appointed as an executive judge
only issue an ex parte TRO if no raffling can be made. Unless, to handle the administrative matters in the RTC or MTC. It an
there is brownout or breach in the system, that’s the only time extra assignment given to a presiding judge. He already has
that you run to the executive judge for the raffling of the case. a sala/ branch, and then he is appointed to be the executive
The moment it is already raffled, your application for judge.
injunction should be filed with the presiding judge. - This only applies to multiple- sala court, where there are
several branches of the same RTC/ MTC in a city.
Q: After the case has been assigned, the duty of the presiding judge is - In single sala court, you don’t need an executive judge.
to conduct a hearing. When will the hearing be made? Automatically, the presiding judge shall issue the ex parte
- The summary hearing shall be conducted by the presiding TRO. In a multiple- sala court, it is the executive judge that
judge within 24 hours after the records are transmitted to issues an ex parte TRO.
the branch to which it is raffled. (BAGONG WEST
KABULUSAN V. LERMA ) The executive judge cannot issue a 20- day TRO. It is the presiding
judge that issues the 20- day TRO.
Q: When can the TRO be issued with notice?
Can you distinguish now the issuance of a TRO by the executive judge
Q: If it is issued ex parte, when will there be notice to the adverse party? and a TRO issued by a presiding judge?

Q: The ex parte TRO is good for only 72 hours, how do you extend it? EXECUTIVE JUDGE PRESIDING JUDGE

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TRO is good for 72 hours Valid for 20 days including the  Filing by the party enjoined of a counter- bond in an amount
first 72 hours fixed by the court when the issuance or continuance of the
Issued before the raffling Issued after the raffling injunction or TRO would cause irreparable damage to the
party or person enjoined while the applicant can be fully
Issued ex parte Issued after summary heary compensated for such damages as he may suffer; or
 Insufficiency of the applicant’s bond
Ground is extreme urgency that To determine whether the TRO
grave and irreparable injury will can be extended for another Q: Is the filing of a counter-bond by the party enjoined to dissolve the
arise unless it is issued period untul the application for injunction a matter of right?
immediately. the preliminary injunction can be - No. The counter-bond to dissolve injunction may be approved
heard bybthe court after hearing, provided it appears that although
the applicant is entitled to the injunction or TRO, the issuance
or continuance thereof would cause irreparable damage to the
Q: When the ex prte TRO is issued within the 72 hours, what shall be party or person enjoined while the applicant can be fully
done within the 72 hours period? compensated for such damages as he may suffer through the
- within the 72 hours, the judge before whom the case is counter- bond.
pending shall conduct a summary hearing to determine
whether the TRO shall be extended until the application Q: How does the counter-bond to dissolve injunction differ from the
for preliminary injunction can be heard. counter-bond to discharge attachment?
- In the case of the counter-bond to discharge attachment, the
Q: What about a TRO issued for 20- day period, what shall be done court shall order the discharge after due notice and hearing,
within the 20- day period? if the party whose property has been attached files a bond
- Within the 20- day period, the application for preliminary sufficient to secure the payment of any judgment that the
injunction shall be resolved. attaching party may recover in the action.
- If no action is taken by the judge on the application for - There is no need to show that it would cause irreparable
preliminary injunction within the 20- day period, the TRO damage to the party.
would automatically expire on the 20th day, no judicial - In Rule 58, when you post a counter-bond as a ground to
declaration to that effect is necessary. dissolve an injunctive writ, there must always be a hearing.
You need to show the court that you suffer greater or
Q: How about the CA, can the CA issue a TRO? irreparable injury should the injunction be not dissolve. It will
- Yes. The CA or a member thereof can issue a TRO. be the court who will determine whether there is indeed a
- The said TRO is effective for 60 days from the service on the greater or irreparable injury. There will be presentation of
party or person sought to be enjoined. evidence, in a summary hearing.
- In Rule 57, you only need a hearing to discharge the writ of
Q: How about the SC? attachment if there has already been an actual levy or seizure
- The SC or a member thereof may issue a TRO and it shall be made by the sheriff. But if no levy yet, still in the process of
effective until further orders. implementing the writ, you can file the counter-bond, even
without a hearing.
Q: Can the TRO be issued ex parte for 20 days?
- No. the provision under Sec 5 (1st paragraph) that the court Q: How will the bond be served? And what will happen if it is disapprove?
may issue an ex parte a TRO to be effective for a period of - Under Sec 7 of Rule 58, the party filing a bond shall serve a
twenty (20) days from service on the party or person sought copy of such bond on the other party, who may except to the
to be enjoined, is INACCURATE. sufficiency of the bond, or of the surety or sureties thereon.
- The injunction shall be dissolved:
Q: Can the executive judge extend the 72 hour TRO?  if the applicant's bond is found to be insufficient in amount,
- No. or
 if the surety or sureties thereon fail to justify, and
Q: Under what condition may a presiding judge extend the 72 hour TRO?  if a bond is not filed, even though sufficient in amount with
- A sufficient sureties approved after justification

Q: Who has burden of proof for the issuance of the WPI? When the bond is filed in court, the other party is notified because he
- The plaintiff or the applicant has the burden of proof for the will be furnished with a copy. Right there, you can already scrutinize the
issuance of a 72 hours TRO sufficiency of the bond. And if you have objections, then, you raise it to
- While the adverse party has the burden of proof, after the 72 the court.
hours TRO has been issued, and within the 20- day period he
has to show cause, at a specified time and place, why the If the writ has not yet been actually issued, that insufficiency of the bond
injunction should not be granted. could prevent the issuance of the writ. But if it has already been issued,
then that should be a ground to dissolve the writ.
Q: Supposing there is no TRO issued. You have an application for
injunction relief in your initiatory pleading. Upon filing, there is no ex Q: Is the failure to serve a copy of the bond to the adverse party fatal?
parte TRO issued by the the executive judge and there is no 20- day Will that be a ground to dissolve the writ?
TRO issued by the presiding judge. Can you still pursue your application - No. In FORTUNE LIFE INSURANCE CO. V. LUCZON,
for an injunctive relief? the SC held that the failure of the defendants to furnish
- Yes. By proving your right in esse. the adverse parties with copies of the bonds prior to
their approval is not sufficient to invalidate the orders
Q: If you are the defendant, how will you defeat an injunctive writ dissolving the preliminary injunction where the attorneys
application? for the latter were notified of the filing of the first bond;
- Sec 6 of Rule 58 provides the grounds for objection to, or for where they ultimately received copies of the bonds; and
motion of dissolution of, injunction or TRO: where they do not contend that said bonds are insufficient
 Insufficiency of the application; or or that the sureties are not solvent.

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Q: How do you claim against the injunction bond? September 8, 2018 (makeup class-linog)
- Under Sec 8 of Rule 58, the claim for damages must be Rule 59 - RECEIVERSHIP
presented in the principal action and judgment thereof should
be included in the final judgment of the case. What are the grounds for receivership?
Section 1. Appointment of receiver.
Q: How do you apply for damages? Upon a verified application, one or more receivers of the property
- That the defendant-claimant has secure a favourable subject of the action or proceeding may be appointed by the court
judgment in the main action; where the action is pending, or by the Court of Appeals or by the
- That the application for damages showing the claimant’s Supreme Court, or a member thereof, in the following cases:
right thereto and the amount thereof be filed in the
same action before the judgment becomes final and (a) When it appears from the verified application, and such other
executor; proof as the court may require, that the party applying for the
- That due notice be given to the other party and his appointment of a receiver has an interest in the property or fund
surety or sureties, notice to the principal not being which is the subject of the action or proceeding, and that such
sufficient; property or fund is in danger of being lost, removed, or materially
- That there should be proper hearing and the award of injured unless a receiver be appointed to administer and preserve it;
damages should be included in the final judgment. (b) When it appears in an action by the mortgagee for the foreclosure
- So when you claim damages against the bond, it has of a mortgage that the property is in danger of being wasted or
to be before the judgment becomes final and executory. dissipated or materially injured, and that its value is probably
insufficient to discharge the mortgage debt, or that the parties have
Q: What happens after trial of the merits and the plaintiff wins, what will so stipulated in the contract of mortgage;
happen to the injunction? (c) After judgment, to preserve the property during the pendency of
- Under Sec 9 of Rule 58, If after the trial of the action it an appeal, or to dispose of it according to the judgment, or to aid
appears that the applicant is entitled to have the act or execution when the execution has been returned unsatisfied or the
acts complained of permanently enjoined the court shall judgment obligor refuses to apply his property in satisfaction of the
grant a final injunction perpetually restraining the party judgment, or otherwise to carry the judgment into effect;
or person enjoined from the commission or continuance (d) Whenever in other cases it appears that the appointment of a
of the act or acts of confirming the preliminary mandatory receiver is the most convenient and feasible means of preserving,
injunction. administering, or disposing of the property in litigation.

Q: Supposing the applicant lose or the case is dismissed, what will During the pendency of an appeal, the appellate court may allow an
happen to the injunctive writ. application for the appointment of a receiver to be filed in and
- The dismissal of the case automatically dissolved the decided by the court of origin and the receiver appointed to be
injunction. subject to the control of said court.

Q: if the defendant after availing all the remedies under Sec 6 of Rule At what point or proceedings can you avail of the remedy of
58, still the court issued the writ of injunction. What is the remedy of receivership?
the defendant? We can avail of the remedy of receivership at the commencement of the
action, during the pendency of the case, or after the judgment.
Q: Is the order granting or issuing the injunctive writ appealable?
- No. The remedy is to file a petition for certiorari. The order What is the nature of the remedy under Rule 69?
granting the writ is interlocutory in nature, hence, not (Maam cited a case, inaudible) What is the ruling of the court with
appealable. respect to the nature of receivership?

-0- What is the scope of the application of Rule 69? (maam cited
another case, inaudible )

Whose jurisdiction to appoint a receiver for banks and banking


or financial institutions?
In the case of Koruga v Arcenas, it is the CENTRAL BANK who has
jurisdiction.
It is clear that the acts complained of pertain to the conduct of Banco
Filipinos banking business. A bank, as defined in the General Banking
Law, refers to an entity engaged in the lending of funds obtained in the
form of deposits. It is the Governments responsibility to see to it that
the financial interests of those who deal with banks and banking
institutions, as depositors or otherwise, are protected. In this country,
that task is delegated to the BSP, which pursuant to its Charter, is
authorized to administer the monetary, banking, and credit system of
the Philippines. It is further authorized to take the necessary steps
against any banking institution if its continued operation would cause
prejudice to its depositors, creditors and the general public as well.

Whose jurisdiction to appoint receivers for corporations?


Maam: It is the courts. The RTC designated as special commercial
courts. The governing rules for the appointment of receivers of
corporations is the Interim Rules of Procedure for Intra-Corporate
Controversies. Rule 59 will only apply suppletorily. The main rule will be

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the Special Administrative Matter promulgated by the Supreme Court, What are the grounds to deny the appointment or application
the Interim Rules of Procedure for Intra-Corporate controversies. of the receiver?
Section 3. Denial of application or discharge of receiver. — The
In the case of Commodities Storage & Ice Plant v CA, what was application may be denied, or the receiver discharged, when the
the ground for the appointment of the receiver? Or was there a adverse party files a bond executed to the applicant, in an amount
ground for the appointment of a receiver here? to be fixed by the court, to the effect that such party will pay the
Respondent bank took possession of the ice plant forcibly and without applicant all damages he may suffer by reason of the acts, omissions,
notice to them; that their occupation resulted in the destruction of or other matters specified in the application as ground for such
petitioners' financial and accounting records making it impossible for appointment. The receiver may also be discharged if it is shown that
them to pay their employees and creditors; the bank has failed to take his appointment was obtained without sufficient cause.
care of the ice plant with due diligence such that the plant has started
emitting ammonia and other toxic refrigerant chemicals into the Maam: So you have the 2 remedies the Counter-bond and the
atmosphere and was posing a hazard to the health of the people in the discharge.
community; the spouses' attention had been called by several people in
the barangay who threatened to inform the Department of Environment When a counter-bond is posted does that necessarily result in
and Natural Resources should they fail to take action.Petitioners thus the discharge of the receiver? Is it automatic that the receiver
prayed for the appointment of a receiver to save the ice plant, conduct be discharged upon the filing of the counter-bond? No maam.
its affairs and safeguard its records during the pendency of the case.”
What is the ruling in the case of Vivares v Reyes?
(Interrupted by an alarm at the door)
The rule states that the application may be denied or the receiver
So is there a ground under Rule 59? discharged. In statutory construction, the word may has always been
No. In the instant case, we do not find the necessity for the appointment construed as permissive. If the intent is to make it mandatory or
of a receiver. Petitioners have not sufficiently shown that the Sta. Maria ministerial for the trial court to order the recall of the receiver upon the
Ice Plant is in danger of disappearing or being wasted and reduced to a offer to post a counterbond, then the court should have used the word
"scrap heap." Neither have they proven that the property has been shall. Thus, the trial court has to consider the posting of the counterbond
materially injured which necessitates its protection and preservation. In in addition to other reasons presented by the offeror why the
fact, at the hearing on respondent bank's motion to dismiss, respondent receivership has to be set aside.
bank, through counsel, manifested in open court that the leak in the ice
plant had already been remedied and that no other leakages had been In the case of Vivares, there was also a discussion on the
reported since. remedy of Lis pendens, is the notice of lis pendens sufficient to
do away of the appointment of a receiver?
What must be shown in order for the receiver to be appointed Since a notice of lis pendens has been annotated on the titles of the
under Section 1 of Rule 59? What was lacking here? disputed properties, the rights of petitioners are amply safeguarded and
Maam: The ground here would be danger of loss, removal or material preserved since there can be no risk of losing the property or any part
injury, which was not properly shown. It is important that you show the of it as a result of any conveyance of the land or any encumbrance that
ground for the appointment of the receiver. may be made thereon posterior to the filing of the notice of lis pendens.
The lis pendens preserves only the rights of the party in the disputed
Is there mere allegation that the property is in danger of being property
lost or removed by neglect, fraudulent design or apathy
sufficient for the appointment of the receiver? Will that suffice? Will the court appoint a receiver for a property that is being
No maam. The facts and circumstances must be properly stated that the occupied by one of the parties?
property is in danger of being lost, removed, or materially injured unless Vivares:
a receiver be appointed. It is undisputed that respondent has actual possession over
some of the disputed properties which are entitled to
What are the requisites for the appointment of a receiver? protection. Between the possessor of a subject property and
1. Verified application stating one of the grounds under Sec 1 the party asserting contrary rights to the properties, the
2. Application must be with notice and set hearing former is accorded better rights. In litigation, except for
3. Posting of the applicant’s bond exceptional and extreme cases, the possessor ought not to be
4. Posting of the receiver’s bond by the receiver before entering deprived of possession over subject property. Article 539 of
to his duties the New Civil Code provides that every possessor has a right
to be respected in his possession; and should he be disturbed
What is the amount of the bond? therein he shall be protected in or restored to said possession
Section 2. Bond on appointment of receiver. — Before issuing the by the means established by the laws and the Rules of Court.
order appointing a receiver the court shall require the applicant to In Descallar v. Court of Appeals, we ruled that the
file a bond executed to the party against whom the application is appointment of a receiver is not proper where the rights of
presented, in an amount to be fixed by the court, to the effect the parties, one of whom is in possession of the property, are
that the applicant will pay such party all damages he may sustain by still to be determined by the trial court.
reason of the appointment of such receiver in case the applicant shall
have procured such appointment without sufficient cause; and the Maam: So take note of that. When one is in possession of the property
court may, in its discretion, at any time after the appointment, subject of the case and for which a receiver is being appointed or being
require an additional bond as further security for such damages. applied for, then a receiver cannot be appointed. That is one of the
limitation for the appointment of a recover. So the property must not be
What is the condition of the bond? in possession of either party.

Codal: “..that the applicant will pay such party all damages he may What requisite before a receiver appointed by the court can
sustain by reason of the appointment of such receiver in case the enter his office?
applicant shall have procured such appointment without sufficient Sec. 4. Oath and bond of receiver. Before entering upon his
cause..” duties, the receiver shall be sworn to perform them faithfully, and
shall file a bond, executed to such person and in such sum as the

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court may direct, to the effect that he will faithfully discharge his does not take over the control and management of the debtor
duties in the action or proceeding and obey the orders of the court. corporation. Likewise, the rehabilitation receiver that will replace the
There must be an Oath and Receiver’s bond. interim receiver is tasked only to monitor the successful implementation
of the rehabilitation plan. There is nothing in the concept of corporate
rehabilitation that would ipso facto deprive the Board of Directors and
September 11, 2018 (Regular Class). ICFC corporate officers of a debtor corporation, such as ASB Realty, of control
such that it can no longer enforce its right to recover its property from
What is the scope of the application of Rule 59, does it include an errant lessee.
corporations under receivership?
What are the basic requirements before a receiver can enter his
In the case of Umale v ASB Realty Corporation, Petitioners insist office?
that the rehabilitation receiver has the power to bring and defend actions Sec. 4. Oath and bond of receiver. Before entering upon his
in his own name as this power is provided in Section 6 of Rule 59 of the duties, the receiver shall be sworn to perform them faithfully, and
Rules of Court. shall file a bond, executed to such person and in such sum as the
court may direct, to the effect that he will faithfully discharge his
Indeed, PD 902-A, as amended, provides that the receiver shall have duties in the action or proceeding and obey the orders of the court.
the powers enumerated under Rule 59 of the Rules of Court. But Rule
59 is a rule of general application. It applies to different kinds of How may a person be appointed as receiver? When a receiver
receivers rehabilitation receivers, receivers of entities under is being asked as a provisional remedy how will the court
management, ordinary receivers, receivers in liquidation and for choose who will be the receiver? What are the qualifications of
different kinds of situations. While the SEC has the discretion to appointing a receiver? Can anyone be appointed as a receiver?
authorize the rehabilitation receiver, as the case may warrant, to
exercise the powers in Rule 59, the SECs exercise of such discretion Herrerra: The general rule is that neither party to a litigation should be
cannot simply be assumed. There is no allegation whatsoever in this appointed as a receiver without the other’s consent because a receiver
case that the SEC gave ASB Realtys rehabilitation receiver the exclusive ought to be an indifferent person between the parties and should be
right to sue. impartial and disinterested (Alcantara v Abbas, 1963)

Under Art 101 of the Family Code, if a spouse without just cause
What is the extent of the power of the corporation to sue abandons the other or fails to comply with his or her obligations to the
whenever a rehabilitation receiver has been appointed? family, the aggrieved spouse may petition the court for receivership.
There is nothing in the concept of corporate rehabilitation that
would ipso facto deprive the Board of Directors and corporate officers of Is there anything in the Rules that guides the court how to
a debtor corporation, such as ASB Realty, of control such that it can no appoint a receiver?
longer enforce its right to recover its property from an errant lessee.

To be sure, corporate rehabilitation imposes several restrictions on the If the court chooses a person to become a receiver, will that
debtor corporation. The rules enumerate the prohibited corporate person automatically become or perform such functions of a
actions and transactions (most of which involve some kind of disposition receiver?
or encumbrance of the corporations assets) during the pendency of the Under Section 4, the person appointed must be sworn to perform his
rehabilitation proceedings but none of which touch on the debtor duties faithfully and post a bond
corporations right to sue. The implication therefore is that our concept
of rehabilitation does not restrict this particular power, save for the Who will be given copies of the bond?
caveat that all its actions are monitored closely by the receiver, who can Sec. 5. Service of copies of bonds; effect of disapproval of
seek an annulment of any prohibited or anomalous transaction or same.
agreement entered into by the officers of the debtor corporation. The person filing a bond in accordance with the provisions of this
Rule shall forthwith serve a copy thereof on each interested party,
When a rehabilitation receiver is appointed for a corporation who may except to its sufficiency or of the surety or sureties thereon.
undergoing rehabilitation, can the corporation sue without the If either the applicant’s or the receiver’s bond is found to be
participation of the receiver? Must everything be coursed thru insufficient in amount, or if the surety or sureties thereon fail to
the receiver? No. justify, and a bond sufficient in amount with sufficient sureties
Corporate rehabilitation is defined as the restoration of the debtor to a approved after justification is not filed forthwith, the application shall
position of successful operation and solvency, if it is shown that its be denied or the receiver discharged, as the case may be. If the bond
continuance of operation is economically feasible and its creditors can of the adverse party is found to be insufficient in amount or the
recover by way of the present value of payments projected in the plan surety or sureties thereon fail to justify, and a bond sufficient in
more if the corporation continues as a going concern than if it is amount with sufficient sureties approved after justification is not filed
immediately liquidated. forthwith, the receiver shall be appointed or re-appointed, as the
case may be.
The intention of the law is to effect a feasible and viable rehabilitation
by preserving a floundering business as a going concern, because the What kind of bond?
assets of a business are often more valuable when so maintained than 1. Receivership bond
they would be when liquidated. This concept of preserving the 2. Receiver’s bond
corporations business as a going concern while it is undergoing 3. Counter-bond
rehabilitation is called debtor-in-possession or debtor-in-place. This
means that the debtor corporation (the corporation undergoing What if there is failure to furnish the parties copies of the bond?
rehabilitation), through its Board of Directors and corporate officers,
remains in control of its business and properties, subject only to the
monitoring of the appointed rehabilitation receiver. What are the powers of the receiver?
Sec. 6. General powers of receiver.
The concept of debtor-in-possession, is carried out more particularly in Subject to the control of the court in which the action or proceeding
the SEC Rules, the rule that is relevant to the instant case. It states is pending, a receiver shall have the power to bring and defend, in
therein that the interim rehabilitation receiver of the debtor corporation

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such capacity, actions in his own name; to take and keep possession 2. Upon motion of either party
of the property in controversy; to receive rents; to collect debts due
to himself as receiver or to the fund, property, estate, person, or Herrera: Receivership may be dissolved when in the opinion of the
corporation of which he is the receiver; to compound for and judge, its continuance is not justified by the facts and circumstances if
compromise the same; to make transfers; to pay outstanding debts; the case or when the court is convinced that it is absurd.
to divide the money and other property that shall remain among the
persons legally entitled to receive the same; and generally to do such What is the procedure?
acts respecting the property as the court may authorize. However, 1. Notice and hearing to all interested parties
funds in the hands of a receiver may be invested only by order of the 2. Settlement of accounts of receiver
court upon the written consent of all the parties to the action. 3. Delivery of funds and other property to person entitled to
No action may be filed by or against a receiver without leave of the receive them
court which appointed him. 4. Payment of compensation of receiver
5. Order of discharge of the receiver
Can the receiver sue? What about the compensation of the receiver?
Yes. A receiver shall have the power to bring and defend, in such The court shall allow the receiver such reasonable compensation as the
capacity, actions in his own name. circumstances of the case warrant, to be taxed as costs against the
defeated party, or apportioned, as justice requires.
Can a receiver be sued?
Yes but no action may be filed by or against a receiver without leave of Can the compensation be deducted from the property or the
the court which appointed him. value of the funds under receivership before its turn over? No.
Who should be liable for the compensation?
What happens if there is refusal to surrender the property to
the receiver what will be the consequence? In the case of Traders Royal bank v IAC, when the services of a
Sec. 7. Liability for refusal or neglect to deliver property to receiver who has been properly appointed terminates, his compensation
receiver. is to be charged against the defeated party, or the prevailing litigant
may be made to share the expense, as justice requires. Consequently,
A person who refuses or neglects, upon reasonable demand, to the trial court's order approving TRB's compensation to
deliver to the receiver all the property, money, books, deeds, notes, be charged solely against the funds under its receivership is without
bills, documents and papers within his power or control, subject of legal justification.
or involved in the action or proceeding, or in case of disagreement,
as determined and ordered by the court, may be punished for Supposing the appointment of the receiver is without cause,
contempt and shall be liable to the receiver for the money or the how will you claim damages against the receivership bond?
value of the property and other things so refused or neglected to be Sec. 9. Judgment to include recovery against sureties.
surrendered, together with all damages that may have been The amount, if any, to be awarded to any party upon any bond filed
sustained by the party or parties entitled thereto as a consequence in accordance with the provisions of this Rule, shall be claimed,
of such refusal or neglect. ascertained, and granted under the same procedure prescribed in
section 20 of Rule 57.
So what’s the consequence?
1. Punished for contempt
2. Liable to the receiver for the money or the value of the When can you claim damages against the receivership bond?
property and other things so refused or neglected to be 1. before trial
surrendered 2. before appeal is perfected
3. Payment of damages that may have been sustained. 3. before judgment becomes executory

Before one can be punished for contempt what must the What is the ground to claim damages against the receivership
receiver do? bond?
He shall make a REASONABLE DEMAND. Rule 59, section 2: damages the other party may sustain by reason of
the appointment of such receiver in case the applicant shall have
What is the basis of the contempt? procured such appointment without sufficient cause
A receiver is an officer of the court.
Section 9 speaks of what kind of bond? Any bond
How will a receivership be terminated? 1. Receivership bond
Sec. 8. Termination of receivership; compensation of 2. Receiver’s bond
receiver. 3. Counterbond

Whenever the court, motu proprio or on motion of either party, shall What’s the ground for claiming damages against “any bond”?
determine that the necessity for a receiver no longer exists, it shall, 1. Receivership bond - damages the other party may sustain by
after due notice to all interested parties and hearing, settle the reason of the appointment of such receiver in case the
accounts of the receiver, direct the delivery of the funds and other applicant shall have procured such appointment without
property in his possession to the person adjudged to be entitled to sufficient cause
receive them, and order the discharge of the receiver from further 2. Receiver’s bond – for damages that may have been suffered
duty as such. The court shall allow the receiver such reasonable by reason of the failure of the receiver to discharge his duties
compensation as the circumstances of the case warrant, to be taxed faithfully, negligence or to obey the orders of the court
as costs against the defeated party, or apportioned, as justice 3. Counterbond – answers for damages which the applicant may
requires. suffer by reason of the act, omission or other matters in the
application of the receivership.
What are the grounds for the termination of the receivership?
When the grounds for the appointment under section 1 no longer exists. Maam: Simply look at the conditions of the bond. If the conditions are
violated, then those are the grounds for you to claim damages against
Who may cause the termination of the receivership? the bond.
1. The Court motu propio

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What is the procedure in claiming damages against the bond?


1. the defendant-claimant secured a favorable judgment in the
Rule 60 – Replevin
main action (or that the plaintiff-applicant has no cause of
action
2. the application for damages showing the claimant’s right What is replevin?
thereto and the amount thereof to be filed in the same action The term replevin is popularly understood as "the return to or recovery
before trial, before appeals is perfected or before the by a person of goods or chattels claimed to be wrongfully taken or
judgment becomes executor detained upon the person’s giving security to try the matter in court and
3. Due notice given to the other party and his sureties, return the goods if defeated in the action.
4. There should be proper hearing and the award for damages
should be included in the final judgment The term therefore may refer either to the action itself, for the recovery
of personality, or the provisional remedy traditionally associated with it,
-0- by which possession of the property may be obtained by the plaintiff
and retained during the pendency of the action.

When do you apply for the provisional remedy of replevin?


Section 1. Application.
A party praying for the recovery of possession of personal property
may, at the commencement of the action or at any time before
answer, apply for an order for the delivery of such property to him,
in the manner hereinafter provided.

What in the nature of replevin proceedings?

In the case of PCI leasing v Dai, . The action is primarily possessory


in nature and generally determines nothing more than the right of
possession. Replevin is so usually described as a mixed action, being
partly in rem and partly in personam.

A provisional remedy of replevin is appropriate for what kind of


actions?
When the main action is for the recovery of personal property.

Can you ask for replevin in an action to recover possession of


real property?

General Rule, replevin only applies to personal properties


In the case of Serg’s Products v PCI Leasing, the subject property
are machinery which is an immovable property by destination, but the
parties in this case subjected the property to a CHATTEL MORTGAGE,
the SC held here that the parties are estopped from claiming that the
subject properties are immovable which cannot be subjected to replevin.

What is the nature of replevin proceedings? In personam or in


rem?
Both. In the case of PCI leasing v Dai, the action is in rem insofar as
the recovery of specific property is concerned, and in personam as
regards to damages involved. As an "action in rem," the gist of the
replevin action is the right of the plaintiff to obtain possession of specific
personal property by reason of his being the owner or of his having a
special interest therein.

What are the requirements for the issuance of the writ of


replevin?
1. Affidavit
2. Bond

What should the affidavit state?


Sec. 2. Affidavit and bond.

The applicant must show by his own affidavit or that of some other
person who personally knows the facts:
a) That the applicant is the owner of the property claimed,
particularly describing it, or is entitled to the possession
thereof;
b) That the property is wrongfully detained by the adverse
party, alleging the cause of detention thereof according to
the best of his knowledge, information, and belief;
c) That 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 otherwise

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placed under custodia legis, or if so seized, that it is Maam: if your ground for a wrot pf replevin is your right to possession
exempt from such seizure or custody; and of the property sought to be replevied un yur capacity as a mortgagede
d) The actual market value of the property. of such property, and there is an issue as to such right of possession
The applicant must also give a bond, executed to the adverse party because in this case, somebody was able to show a registration in his
in double the value of the property as stated in the affidavit name, so there is doubt as to the right of possession of such mortgagee.
aforementioned, for the return of the property to the adverse party When there I sdoubt ot the right of possession of a mortgagee, then
if such return be adjudged, and for the payment to the adverse party you should implead everybody including the debtor, the mortgagor for
of such sum as he may recover from the applicant in the action. you to be entitled to possession. You have to remove that doubt first.
That is why there is no proper issuance of the writ of replevin here.
Can a person other than the party fill up the affidavit? There was a failure to implead the mortgagor. Why? Because you have
Yes, provided that he personally knows of the facts to show that there is a breach of the mortgage contract. Your right to
possession hinges of your being a mortgagee and you can only enforce
Can the affidavit requirement be dispensed with? your right to the mortgagee when there is default, and you can say that
there is default if you implead the debtor.
Yes. In the case of Citibank v CA, There is substantial compliance with
the rule requiring that an affidavit of merit to support the complaint for In this case, they only impleaded who was in possession of the vehicle
replevin if the complaint itself contains a statement of every fact but not the debtor and that possessor was able to show title to the
required to be stated in the affidavit of merit and the complaint is verified vehicle. Because of that, the right of possessor alleged by the applicant
like an affidavit. is put in doubt. The mortgagee can never be an owner unless there is a
foreclosure and he became the highest bidder.
What is the amount of the bond? Double the value of the property
as stated in the affidavit The rule here is, as a mortgagee, you have the right to a writ of replevin,
What is the condition of the bond? For the return of the property to as long as there is no question as to the ownership over the property.
the adverse party if such return be adjudged, and for the payment to Nobody else claims ownership over it. If there is, then there is a question
the adverse party of such sum as he may recover from the applicant in as to the right to possess. If you cannot show ownership, but only as a
the action. mortgagee, then you must be able to prove a CLEAR RIGHT of
possession to the property. There can be no basis for the main action
Why is the bond here in “double the value of the property”? for replevin.

The bond is in double the value of the property, how is the value
determined?
Is it required that the applicant be the owner of the property
claimed?
Based on the ACTUAL VALUE of the subject property.
No. in the case of Servicewide v CA, persons having a special right of
property in the goods the recovery of which is sought, such as a chattel How about the probable value? Will that suffice?
mortgagee, may maintain an action for replevin therefor.
No. In the case of Citibank v CA, It bears stressing that the actual
Is it automatic, that when you are a mortgagee you can ask for value of the properties subject of a replevin is required to be stated in
a writ of replevin? the affidavit because such actual value will be the basis of the replevin
bond required to be posted by the plaintiff. Therefore, when the
In the case of Servicewide v CA, Rule 60 of the Revised Rules of Court petitioner failed to declare the actual value of the machineries and
requires that an applicant for replevin must show that he "is the owner equipment subject of the replevin suit, there was non-compliance with
of the property claimed, particularly describing it, or is entitled to the Section 2, Rule 60 of the Revised Rules of Court.
possession thereof." Where the right of the plaintiff to the possession
of the specified property is so conceded or evident, the action need only What is meant by actual market value?
be maintained against him who so possesses the property. It is the price which an article would command in the ordinary course of
business when offered for sale by one willing to sell, but not under the
In the case of Servicewide v CA, was the replevin here properly compulsion to sell, and purchased by another who is willing to buy, but
issued? under no obligation to purchase.

No. In this case, the right of possession on the part of the plaintiff, or Should the court approve the replevin bond, when there is a
his authority to claim such possession or that of his principal, is put to dispute as to the value of the subject property?
great doubt. In a suit for replevin, a clear right of possession must be
established. A foreclosure under a chattel mortgage may properly be Pertinent rules require that the affidavit of merit should state
commenced only once there is default on the part of the mortgagor of the actual value of the property subject of a replevin suit and not just
his obligation secured by the mortgage. its probable value.

The Rules of Court requires the plaintiff to “give a bond, executed to the
Since the mortgagee's right of possession is conditioned upon the actual
defendant in double the value of the property as stated in the affidavit
fact of default which itself may be controverted, the inclusion of other
x x x .” Hence, the bond should be double the actual value of the
parties, like the debtor or the mortgagor himself, may be required in
properties involved. In this case, what was posted was merely an
order to allow a full and conclusive determination of the case. When the
amount which was double the probable value as declared by the plaintiff
mortgagee seeks a replevin in order to effect the eventual foreclosure
and, therefore, inadequate should there be a finding that the actual
of the mortgage, it is not only the existence of, but also the mortgagor's
value is actually far greater than P200,000.00. Since the valuation
default on, the chattel mortgage that, among other things, can properly
made by the petitioner has been disputed by the respondent, the lower
uphold the right to replevy the property. The burden to establish a valid
court should have determined first the actual value of the properties. It
justification for such action lies with the plaintiff.
was thus an error for the said court to approve the bond, which was
based merely on the probable value of the properties.
Why should the right here of the applicant be affected by the
failure of the mortgagor to appear? To be entitled to the writ of replevin, the applicant must be able
to show, what is the nature of the possession of the adverse
party that must be shown by the applicant?

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(Lopera), towed by the PNCC patrol to its compound where it was


The property is wrongfully detained by the adverse party. In the case of stored.
Twin Ace v CA, it must be borne in mind that replevin is
a possessory action the gist of which focuses on the right of possession But isn’t it the bus that figured in the accident of the property
that, in turn, is dependent on a legal basis that, not infrequently, looks of PNCC can it be included as evidence in that accident? Is it
to the ownership of the object sought to be replevied. Wrongful not enough reason to hold on to the bus or to detain the bus
detention by the defendant of the properties sought in an action because it is evidence in the criminal case?
for replevin must be satisfactorily established.
No. Following the conduct of an investigation of the accident, the bus
Why is replevin sought over the bottles? was towed by respondents on the request of Lopera. It was thus not
distrained or taken for a tax assessment or a fine pursuant to law, or
Twin Ace is a private domestic corporation engaged in the manufacture seized under a writ of execution or preliminary attachment, or otherwise
of rhum, wines and liquor under the name and style Tanduay placed under custodia legis.
Distillers. It has registered its mark of ownership of its bottles with the
Bureau of Patent, Trademarks and Technology Transfer under Republic In upholding the dismissal of petitioners complaint, the Court of Appeals
Act No. 623. As alleged by Twin Ace, in producing patis and other food held that while there is no law authorizing the impounding of a vehicle
seasonings, Rufina uses as containers bottles owned by Twin Ace involved in an accident by the police authorities, x x x neither is there a
without any authority or permission from the latter. In the law making the impounding of vehicles involved in accidents illegal. The
process, Rufina is unduly benefited from the use of the bottles. So Twin seizure and impounding of petitioners bus, on Loperas request, were
Ace filed a complaint against. But Rufina claimed that the marked bottles unquestionably violative of the right to be let alone by the authorities as
it used as containers for its products were purchased from junk dealers; guaranteed by the Constitution.
hence, it became the owner thereof.
Isn’t it that when a vehicle figures in an accident can be
So who owns the bottles? impounded? Is it not the same in the case here?

Rufina. The SC held that Twin Ace has not shown that it is entitled to Yes maam but not in this particular case because the seizure and
the possession of the bottles in question and consequently there is thus distraint implemented by respondents upon a verbal order by Lopera
no basis for the demand by it of due compensation. As stated by the without the benefit or color of legality afforded by a court process, writ
court in the earlier case of Twin Ace Holdings Corporation v. Court of or order.
Appeals: we held that since the purchaser at his discretion could either
retain or return the bottles, the transaction must be regarded as a sale Is the impounding of the vehicle sufficient cause for the
of the bottles when the purchaser actually exercised that discretion and retention of the vehicle such that a writ of replevin cannot be
decided not to return them to the vendor. We also take judicial notice issued to recover possession of the subject vehicle?
of the standard practice today that the cost of the container is included
in the selling price of the product such that the buyer of liquor or any Yes, because the thing is considered to be in CUSTODIA LEGIS. A thing
such product from any store is not required to return the bottle nor is is in custodia legis when it is shown that it has been and is subjected to
the liquor placed in a plastic container that possession of the bottle is the official custody of a judicial executive officer in pursuance of his
retained by the store. execution of a legal writ. Only when property is lawfully taken by virtue
of legal process is it considered in the custody of the law, and not
Maam: So in this case 2 elements were not shown. One is the applicant’s otherwise. But it is not applicable in the case at bar because the seizure
right to possession over the property sought to be replevied or and distraint implemented by respondents upon a verbal order by
ownership of the properties and two, the wrongful possession of the Lopera without the benefit or color of legality afforded by a court
defendant of such properties. WRONGFUL POSSESSION or wrongful process, writ or order.
detention of properties sought to be replevied.
Maam: There was no proper impounding of the vehicle here. That is why
When a property is being held as evidence in a criminal case, it cannot be considered as in custodia legis. It can be impounded. But
can that be subject of a writ of replevin? there is no proper impounding here because it was made thru a verbal
order by Lopera. When we say impounding there has to be an issuance
We must distinguish. In the case of Superlines v PNCC, It is true that of an impounding receipt. There is none in this case, that is why there
property held as evidence in a criminal case cannot be replevied. But is no valid detention.
the rule applies only where the property is LAWFULLY HELD, that is,
seized in accordance with the rule against warrantless searches and How about property seized by the Bureau of Customs? Can the
seizures or its accepted exceptions. Property subject of litigation is not court issue a writ of replevin to recover such property?
by that fact alone in custodia legis. Only when property is lawfully taken
by virtue of legal process is it considered in the custody of the law, and
not otherwise. In this case, it has no application to the instant case which In the case of Asian Terminals v Ricafort, Regional Trial Courts are
involves the seizure and distraint implemented by respondents upon a devoid of any competence to pass upon the validity or regularity of
verbal order by Lopera without the benefit or color of legality afforded seizure and forfeiture proceedings conducted by the Bureau of Customs
by a court process, writ or order. and to enjoin or otherwise interfere with these proceedings. It is the
Collector of Customs, sitting in seizure and forfeiture proceedings, who
What was the property sought to be replevied here? Is it the has exclusive jurisdiction to hear and determine all questions touching
proper subject of replevin? on the seizure and forfeiture of dutiable goods.
Bus.
The rule that Regional Trial Courts have no review powers over such
proceedings is anchored upon the policy of placing no unnecessary
Why was the bus detained?
hindrance on the government’s drive, not only to prevent smuggling and
The bus while traveling north and approaching the Alabang northbound
other frauds upon Customs, but more importantly, to render effective
exit lane, swerved and crashed into the radio room of respondent
and efficient the collection of import and export duties due the State,
Philippine National Construction Company (PNCC). The bus was
which enables the government to carry out the functions it has been
thereafter turned over to the Alabang Traffic Bureau for it to conduct its
instituted to perform.
own investigation of the incident. Because of lack of adequate space,
the bus was, on request of traffic investigator Pat. Cesar Lopera

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What are the properties sought be replevied here? 72 right hand the writ issued, should the court grant the writ of replevin? Is
buses from Japan. the value of the bond subject to hearing?

Is replevin proper here? No. RTC has no jurisdiction to issue the writ. Maam answered all questions: So the rules here are not that clear on
whether the issuance of the writ requires hearing. Because if you look
What about properties seized by the DENR under the forestry at the time when you apply for the writ, it says “at the commencement
code? Can the court issue a writ of replevin to recover those of the action or before answer” obviously, once the defendant files an
items? answer, you no longer have the right. You cannot apply anymore.
Meaning to say, even before the service of the summons the writ can
No. in the case of Paat v CA, the Secretary and his duly authorized
be issued. You only have a very limited window or time frame within
representatives are given the authority to confiscate and forfeit any
which you can apply and secure a writ of replevin. Chances of such writ
conveyances utilized in violating the Code or other forest laws, rules and
being issued ex-parte is very high.
regulations. The phrase "to dispose of the same" is broad enough to
cover the act of forfeiting conveyances in favor of the government. The purpose here is to be able to recover possession of the personal
property before the personal property may be spirited away. Remember,
What are the property subject here? Forest products. Narra lumber.
personal property which is capable of manual delivery it can easily be
Can the truck be subject of replevin considering that it is not a taken out or removed. So the object of the writ of replevin here is to
forest product? recover in a specific time possession of such personal property,
especially if that personal property is a vehicle. This is the nature of the
No. It should be noted that the truck was seized by the petitioners replevin as a provisional remedy. You should remember the very limited
because it was transporting forest products without the required permit period to apply for such unlike the other provisional remedies.
of the DENR in manifest contravention of Section 68 of P.D. 705 as
amended by E.O 277. Section 68-A of P.D. 705, as amended, Here, the value of the bond is double the value of the property, not
unquestionably warrants the confiscation as well as the disposition by subject to the discretion of the court. Not based on an amount as the
the Secretary of DENR or his duly authorized representatives of the court may determine. This is very specific. The bond must be double the
conveyances used in violating the provision of forestry laws. Evidently, actual market value of the property.
the continued possession or detention of the truck by the petitioners for
Now I want you to distinguish now, because here, recovery of
administrative forfeiture proceeding is legally permissible, hence, no
possession can be a ground. You don’t have to be an owner, you just
wrongful detention exists in the case at bar.
have to be entitled to possession over the properties subject to the writ
Do the regular courts have jurisdiction to question or put into of replevin. We go back to rule 57 section 1 par c. you can also ask for
validity the confiscation of the DENR thru the issuance of the a writ of preliminary attachment in an action fore recovery of personal
writ? property. How is that different from the remedy of the writ of
replevin? Because the writ of replevin is also for the recovery of a
The suit for replevin is never intended as a procedural tool to question personal property and you have the right to possess. What is the
the orders of confiscation and forfeiture issued by the DENR in difference now? (Note naa kay riano)
pursuance to the authority given under P.D. 705, as amended. Section
8 of the said law is explicit that actions taken by the Director of the Replevin Preliminary Attachment
Bureau of Forest Development concerning the enforcement of the Purpose is to recover personal Purpose is to place the property
provisions of the said law are subject to review by the Secretary of DENR property capable of manual under the custody of the court to
and that courts may not review the decisions of the Secretary except delivery secure the satisfaction of the
through a special civil action for certiorari or prohibition. judgment that may be rendered
in favor of the applicant at some
What is the effect if the property is confiscated or forfeited by future time
the DENR under the forestry code? The personal property belongs The property does not belong to
either to the plaintiff or one the plaintiff but to the defendant
Maam: It places the property under custodia legis, thus the writ cannot
owver which the plaintiff has a
be issued. That is the main reason why a writ of replevin cannot be
right of possession.
issued. The property must not have been detained or placed under
May be availed of only when the Can be availed of even if the
custodial egis. Must not have been taken by virtue of a court order, or
defendant is in ACTUAL or property is in the custody of third
warrant.
constructive possession of the persons
So the procedure taken by the bureau of customs and DENR with respect personal property
to confiscated products are valid restraint of these properties which now Extends only to personal Extends to all kinds of property,
places these properties under custodia legis. You must be able to show property capable of manual real or personal or even
WRONGFUL DETENTION of the property by the adverse party and if the delivery incorporeal property
property be held by virtue of a warrant, distraint made by the BoC, then May be availed of without The applicant in certain cases,
the writ will not issue. showing that the property is needs to show that the property
being concealed or disposed of is being removed, concealed or
After the application has been filed what should the court do? to the prejudice of the applicant disposed of.
What is the procedure after the application has been filed? Property under custodia legis May be attached even if the
cannot be replevied property is in custodial egis.
Sec. 3. Order. The bond is double the value of The bond is equal to that fixed
Upon the filing of such affidavit and approval of the bond, the court the property as stated in the by the court which is the amount
shall issue an ORDER and the corresponding writ of replevin affidavit submitted in support of sufficient to satisfy the
describing the personal property alleged to be wrongfully detained the application. applicant’s demand or the value
and requiring the sheriff forthwith to take such property into his of the property to be attached
custody.

Should the court conduct hearing before issuing the order


granting the writ of replevin? Can the writ be issued ex-parte?
Does it follow that when the application is filed and the affidavit
has satisfactorily complied with all the requisites before which

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September 1*, 2018. ICFC TAKE the property, if it be in the possession of the adverse party, or
his agent, and retain it in his custody. If the property or any part
May an immovable be a subject of replevin? thereof be concealed in a building or enclosure, the sheriff must
demand its delivery, and if it be not delivered, he must cause the
General Rule maam no. but in the case of Serg’s products v PCI
building or enclosure to be broken open and take the property into
leasing, The parties here executed a chattel mortgage agreement over
his possession. After the sheriff has take possession of the property
the chocolate making machinery which is an immovable property. The
as herein provided, he must keep it in a secure place and shall be
loan became due. The mortgagor asked for the issuance of the writ of
responsible for its delivery to the party entitled thereto upon
replevin. Petitioner contended that the subject properties are immovable
receiving his fees and necessary expenses for taking and keeping the
properties. Thus a writ of replevin is not proper.
same.
The Court has held that contracting parties may validly stipulate that a What about summons? Can it be served contemporaneously
real property be considered as personal. After agreeing to such with the implementation of the writ? Can the court act
stipulation, they are consequently estopped from claiming coercively without service of summons?
otherwise. Under the principle of estoppel, a party to a contract is
ordinarily precluded from denying the truth of any material fact found Maam: in Rivera, there was prior service of summons before the
therein. implementation of the writ.
Clearly then, petitioners are estopped from denying the characterization
of the subject machines (immovable under par 5 of article 415) as BA Finance v CA July 5, 1996: A person, not the mortgagor, was in
personal property. Under the circumstances, they are proper subjects of possession of the motor vehicle. The mortgagee was sued but the
the Writ of Seizure. person was not served with summons. SC: The person in possession of
the property sought to be replevied is ordinary the proper and only
Who is tasked to implement the writ of replevin? necessary party defendant, and the plaintiff is not required to so join as
Section 4. Duty of the sheriff. — Upon receiving such order, the defendants other persons claiming a right on the property but not in
sheriff must serve a copy thereof on the adverse party, together with possession thereof
a copy of the application, affidavit and bond, and must forthwith take
from 2014 TSN: It does not even requires the service of summons
the property, if it be in the possession of the adverse party, or his
simultaneously or prior to the summons. In fact the application of the
agent, and retain it in his custody. If the property or any part thereof
writ is at the commencement of the action and prior to the filing of the
be concealed in a building or enclosure, the sheriff must demand its
answer. So obviously before the defendant can participate in the case,
delivery, and if it be not delivered, he must cause the building or
nandyan na ang writ. Inapply-an mo na and it can be serve even without
enclosure to be broken open and take the property into his
the prior or simultaneous service of summon. The rule is very clear. In
possession. After the sheriff has take possession of the property as
preliminary attachment and preliminary injunction, that is required but
herein provided, he must keep it in a secure place and shall be
not in replevin. It tells you that the implementation can be made even
responsible for its delivery to the party entitled thereto upon
before the service of summons, before the defendant can participate.
receiving his fees and necessary expenses for taking and keeping the
same. Who must be served copies of the writ?

Can the sheriff delegate the implementation of the writ? 1. Adverse party

Maam: In the case of Torres v Cabesuela, the duty of the sheriff here 2. His Agent
is ministerial. It is personal. In this case can he delegate it to the chief
of police? He cannot. Can he deputize or delegate another sheriff to do What is the reason why it must be served to the adverse party?
it? He cannot. Is there an instance when he can delegate it? There is What is the effect?
none. There is no exception. It is the duty of the sheriff to personally
In the case of Rivera v Vargas, Service of the writ upon the adverse
serve the writ. Torres tells you that the sheriff, because it is personal,
party is mandatory in line with the constitutional guaranty on procedural
he cannot actually enforce the writ outside the territorial jurisdiction of
due process and as safeguard against unreasonable searches and
the court. Even if it is beyond, even if the property is outside the
seizures. If the writ was not served upon the adverse party but was
territorial jurisdiction of the court, the sheriff must implement it BUT, he
instead merely handed to a person who is neither an agent of the
needs to coordinate with the sheriff of the court where the property is
adverse party nor a person authorized to receive court processes on his
located. So what Torres tells you is the extent of the enforceability of
behalf, the service thereof is erroneous and is, therefore, invalid,
the writ. It does not create an exemption that the duty of the sheriff in
running afoul of the statutory and constitutional requirements. The
implementing the writ is personal.
service is likewise invalid if the writ of replevin was served without the
Since it is personal he must implement it wherever the property may be required documents. Under these circumstances, no right to seize and
found. If it is found outside the territorial jurisdiction of the court, he to detain the property shall pass, the act of the sheriff being both
must go to such place subject to coordination of the sheriff of that place unlawful and unconstitutional. In this case, the parties was not properly
and that’ why he must comply with the written notice or written request served with the writ. It was served to the security guard which is not an
to the sheriff. If there is no coordination, them there would be a problem agent.
because you need the documentation before you can implement the
writ. There has to be proper channeling. If there is improper service of the writ, what is the remedy of
the adverse party?
The enforceability of the writ of replevin is anywhere in the country like Maam: As stated in the case of Rivera v Vargas, the proper remedy
the writ of attachment. Again, Torres tells you that the writ can be should have been to file a motion to quash the writ of replevin or a
enforced outside the territorial jurisdiction of the court which issued it motion to vacate the order of seizure on the ground of improper service.
and the sheriff must serve it personally subject to the coordination of
the sheriff of the place where the property is located. What is the remedy of the applicant?
Maam: The applicant may file a new application for replevin should he
How will the sheriff enforce the writ? choose to do so.

Section 4. Duty of the sheriff. — Upon receiving such order, the How will the adverse party counter the remedy of the
sheriff must serve a copy thereof on the adverse party, together with applicant?
a copy of the application, affidavit and bond, and must forthwith

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Maam: File an answer. The application for the writ of replevin can be thereon, he cannot immediately require the return of the property,
made before the filing of an answer. So the longer you delay the filing but if he does not so object, he may, at any time before the delivery
of your answer, your giving the applicant the opportunity to re-file the of the property to the applicant, require the return thereof, by filing
application. Answer ka na kaagad because the rule says replevin may be with the court where the action is pending a bond executed to the
applied for before answer. So hindi kana mag lalabas ng pera sa counter- applicant, in double the value of the property as stated in the
bond. applicant's affidavit for the delivery thereof to the applicant, if such
delivery be adjudged, and for the payment of such sum, to him as
When a property is in an enclosed space, what must the sheriff may be recovered against the adverse party, and by serving a copy
do in order to take possession of the property? of such bond on the applicant.
Under section 4, If the property or any part thereof be concealed in a
building or enclosure, the sheriff must demand its delivery, and if it be Maam: So the options are:
not delivered, he must cause the building or enclosure to be broken
open and take the property into his possession. 1. Object to the sufficiency of the bond of the applicant

2. File a redelivery bond


Where shall he take the property after he had taken possession
thereof? When can we object or file the redelivery bond?
After the sheriff has take possession of the property as herein provided, After the receipt of the order and before the 5-day period had elapsed.
he must keep it in a secure place and shall be responsible for its delivery
to the party entitled thereto upon receiving his fees and necessary Can you question the sufficiency of the replevin bond and at the
expenses for taking and keeping the same. He shall possess the property same time post a counter-bond? Why?
for 5 days.
No maam because the remedies under section 5 are ALTERNATIVE. In
the first remedy you are questioning the sufficiency of the bond while in
Why is there a 5-day period? What is it for?
the second, by filing the bond, you are admitting the validity of the
This is the time where the adverse party is given the chance to oppose
replevin bond which is inconsistent with each other.
to the sufficiency of the bond or to file a counter-bond.
When must the redelivery bond be posted?
Within the 5-day period, can the sheriff take the property
replevied to his home? Within the 5-day period
No maam. In the case of Gomez v Concepcion, Sec. 4, Rule 60 of the
Rules of Court provides: . . . When the officer has taken property as Maam: The remedies under section 5 are alternative. If you question the
herein provided, he must keep it in a secure place and shall be sufficiency of the replevin bond, it must be resolved by the court within
responsible for it and ultimately deliver it to the party entitled thereto 5 days. There are time constraints here. When you question the
upon receiving his fees and necessary expenses for taking and keeping sufficiency of the replevin bond, there is no guaranty that the court will
the same. resolve that issue within the 5-day period. It may be resolved much
Evidently, the respondent was remiss in the performance of his official much later. The remedy of counter-bond can be availed of within 5-days
duty and responsibility to safely secure the property in his custody until from the service of the writ.
its delivery to the party entitled to it when he brought the jeepney it to
The 5-day holding period, is the period where the adverse party can
his home. The vehicle could have been deposited in the premises of the
exercise these remedies. That is questioning the sufficiency of the bond
court where it is secured, or, at any other place where the required
or filing of the counter-bond. These are not cumulative and simultaneous
security is provided for and available. For after all, the respondent should
remedies.
have known that his office could have charged the party entitled to it,
allowable fees for storage, necessary in safely keeping the property In the case of Rivera v Vargas, when was the 5-day period
in custodia legis. reckoned?
The 5-day period did not commence to run because of the improper
Can he bring the property within the 5-day period to the service of summons because the period is counted from the proper
applicant because he has no money for the storage fees? Can service of the orders.
he turn it over? no
Maam: within the 5-day period, he must safely keep the property. He Maam: So it must be from the valid service of the writ. Therefore if there
cannot bring it to his home or turn it over to the applicant. is an invalid service, the remedy will be to quash.

In the case of Hao v Andres, what did the sheriff do? In the same case, is the filing of the counter-bond valid?
It was not necessary. The filing of the redelivery bond did not thereby
Judge Fuentes pointed out several instances where Andres lacked due waive her right to question the improper service because
diligence to wit: (1) the seized motor vehicles were placed in a
compound surrounded by an insufficiently locked see-through fence; (2) Maam: The valid service of the writ will be the reckoning point for the
three motor vehicles were left outside the compound; (3) Andres turned 5-day period. As long as there is no valid service, the 5-day period will
over the key of the gate to the policemen guarding the motor vehicles; not commence to run. If you choose to avail of the remedy of counter-
(4) Andres does not even know the full name of the owner of the bond, you can still do it.
compound, who was merely known to him as Gloria. All in all, the sheriff
What will happen after the 5-day period?
was not careful in securing the 9 seized motor vehicles. It was found out
that the vehicles were placed in the compound of Silver which is the Section 6. Disposition of property by sheriff. — If within five (5)
applicant of the writ. days after the taking of the property by the sheriff, the adverse party
(chismis about Sheriff Andress, the one punched by Mayor Sara :D) does not object to the sufficiency of the bond, or of the surety or
sureties thereon; or if the adverse party so objects and the court
Within the 5-day period, after the implementation of the writ affirms its approval of the applicant's bond or approves a new bond,
and service of the copy of the writ and the supporting or if the adverse party requires the return of the property but his
documents, what are the options available to the adverse bond is objected to and found insufficient and he does not forthwith
party? file an approved bond, the property shall be delivered to the
applicant. If for any reason the property is not delivered to the
Section 5. Return of property. — If the adverse party objects to the applicant, the sheriff must return it to the adverse party.
sufficiency of the applicant's bond, or of the surety or sureties

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Maam: If there is no remedy availed of by the adverse party, he will turn against the bond unless the action therefor is filed within one
over the property to the applicant. If there is no objection to the replevin hundred twenty (120) days from the date of the filing of the bond.
bond or there is a counter-bond then the sheriff cannot turn over the
property to the applicant. The sheriff shall not be liable for damages, for the taking or keeping
of such property, to any such third-party claimant if such bond shall
If there is a counter-bond, what will the sheriff do to the be filed. Nothing herein contained shall prevent such claimant or any
property? third person from vindicating his claim to the property, or prevent
Section 5. Return of property. — If the adverse party objects to the the applicant from claiming damages against a third-party claimant
sufficiency of the applicant's bond, or of the surety or sureties who filed a frivolous or plainly spurious claim, in the same or a
thereon, he cannot immediately require the return of the property, separate action.
but if he does not so object, he may, at any time before the delivery
of the property to the applicant, require the return thereof, by filing When the writ of replevin is issued in favor of the Republic of the
with the court where the action is pending a bond executed to the Philippines, or any officer duly representing it, the filing of such bond
applicant, in double the value of the property as stated in the shall not be required, and in case the sheriff is sued for damages as
applicant's affidavit for the delivery thereof to the applicant, if such a result of the replevin, he shall be represented by the Solicitor
delivery be adjudged, and for the payment of such sum, to him as General, and if held liable therefor, the actual damages adjudged by
may be recovered against the adverse party, and by serving a copy the court shall be paid by the National Treasurer out of the funds to
of such bond on the applicant be appropriated for the purpose.
Maam: Once the conter-bond is approved, then the property will be
Maam: So the same remedy as in attachment with respect to a third
returned to the adverse party.
party claim.
What are the instances when the sheriff will return the property
to the adverse party? (note: Riano) So what is the difference of the remedy of terceria in
attachment?
1. The adverse party filed a counter-bond Maam: The nature of attachment is that, when the sheriff keeps the
property, the sheriff will not deliver it to the applicant. That will serve as
2. The property is not delivered to the applicant security for the judgment of the plaintiff in the case. It will be under
custodial egis for the entire duration of the case, that s the essence of
What are the instances where the sheriff will turn over the
attachment.
property to the applicant?

Under section 6, In Replevin, there is only a limited period in which the sheriff will hold
the property. Therefore, the remedy of terceria under sec 7, Rule 60,
1. The adverse party does not object to the sufficiency of the should be availed of within the same period that the sheriff has
bond, or of the surety or sureties thereon possession of the property. After the 5 days he has to turn it over to the
applicant or to the adverse party.
2. The adverse party so objects and the court affirms its approval
of the applicant's bond or approves a new bond That is the difference. It is when you will file the terceria. Terceria in
Rule 60 is only available as long as the sheriff has possession, that is
3. if the adverse party requires the return of the property but his
only 5 days. The moment the sheriff loses possession, the remedy is not
bond is objected to and found insufficient and he does not
available.
forthwith file an approved bond

What is the nature of the writ of replevin to recover turn over When should the sheriff make his return?
property from the applicant after the 5-day period? Section 8. Return of papers. — The sheriff must file the order, with
Ministerial and mandatory his proceedings indorsed, thereon, with the court within ten (10)
days after taking the property mentioned therein.
Can the sheriff delay the delivery of the property to the
applicant? Is the period extendible? No maam
No. In the case of Adoma v Gatcheco, it took respondent sheriff 13
days before he released the vehicle the applicant, a clear violation of When will the period commence to run? After the actual seizure of
Section 6, Rule 60 of the 1997 Revised Rules of Civil Procedure. the property

Maam: The delivery of the applicant of the property within the 5-day What should the judge do after the trial of the case?
period is mandatory. The sheriff cannot delay the delivery. Section 9. Judgment. — After trial of the issues the court shall
determine who has the right of possession to and the value of the
What happens if the property is being claimed by a third property and shall render judgment in the alternative for the delivery
person? thereof to the party entitled to the same, or for its value in case
Section 7. Proceedings where property claimed by third person. — delivery cannot be made, and also for such damages as either party
If the property taken is claimed by any person other than the party may prove, with costs.
against whom the writ of replevin had been issued or his agent, and
such person makes an affidavit of his title thereto, or right to the Does this judgment apply to a replevin case preparatory to a
possession thereof, stating the grounds therefor, and serves such foreclosure of mortgage? No
affidavit upon the sheriff while the latter has possession of In the case of Allandale v The Good Development Corporation, By
the property and a copy thereof upon the applicant, the sheriff shall causing the auction sale of the mortgaged properties, respondent effectively
not be bound to keep the property under replevin or deliver it to the adopted and pursued the remedy of extra-judicial foreclosure, using the writ
applicant unless the applicant or his agent, on demand of said sheriff, of replevin as a tool to get hold of the mortgaged properties. The properties of
shall file a bond approved by the court to indemnify the third-party petitioners which were seized by virtue of the Writs of Replevin were extra-judicially
claimant in a sum not less than the value of the property under foreclosed and sold at public auction by respondent in the exercise of its absolute
replevin as provided in section 2 hereof. In case of disagreement as right under the contract entered into by the parties, without need of prior notice or
to such value, the court shall determine the same. No claim for demand to forthwith judicially or extra-judicially foreclose this mortgage and proceed
damages for the taking or keeping, of the property may be enforced

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Based on the lectures of Atty Tiu
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against all or any of the mortgaged rights, interests and properties for the full
satisfaction of the mortgagors' entire obligation to the mortgagee. RULE 61 – SUPPORT PENDENTE LITE

Sec 9 will not apply because the property is already sold in public auction. The What is support pendent lite?
person entitled to the property is the highest bidder Support pendent lite is an amount adjudicated by the trial court during
the pendency of an action for support upon application by the plaintiff
Maam: Allandale tells you that section 9 does not apply when the replevin is availed at the commencement of the proper action or at anytime afterwards. It
of preparatory of a foreclosure proceeding. is a remedy by the Revised Rules of Court and classified as a provisional
remedy rendered by the court as equity and justice may require.
How will you recover from the replevin bond?
Section 10. Judgment to include recovery against sureties. — The What are the main action where you can claim support pendent
amount, if any, to be awarded to any party upon any bond filed in lite?
accordance with the provisions of this Rule, shall be claimed, 1. Action for support
ascertained, and granted under the same procedure as prescribed in 2. Acknowledgement
section 20 of Rule 57. 3. Declaration of nullity of marriage
4. Annulment of Marriage
What are the grounds? 5. Legal Separation
1. Applicant is not entitled to the writ 6. Rape when it results in an offspring
7. VAWC cases
When do you make the claim against the replevin bond? 8. Action for custody
1. Before trial 9. Compel recognition of an illegitimate child
2. Before appeal is perfected Maam: Any crime na nakakabuntis. Kahit na hindi mag ama mag ina,
3. Before the judgment became executory pwede mag asawa.

Maam: The same rule like in attachment, injunction, as well as Is it available to both criminal and civil cases? Yes
receivership. You have to file it before finality of the judgment. As much
as possible it must be included in the judgment. Can you claim for support if your main action is Accion
reivindicatoria?
-0- No maam. In the case of Coquia v Baltazar, The action commenced
before the respondent judge was not for support but for the recovery of
the ownership and possession of real property. Manifestly such an action
is not "the proper action" contemplated by said rule The mere fact that
the plaintiffs have legal and equitable rights in the property they seek to
recover does not authorize the court to compel the defendants to
support the plaintiffs pending the determination of the suit.

Can support pendente lite be availed of on appeal? Yes.


An appellate court can grant support pendent lite after a full dress trial
and a decision of the trial court on the merits finding that the claim of
filiation and support has been adequately proven

What kind of support?


Maam: the basic needs of a person like food, shelter, clothing,
education, these are included in support. Anything that will help’ you
exist in this world, you can have that.

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