PROVISIONAL REMEDIES

The Kind Of Provisional Remedies

1. Preliminary Attachment
2. Preliminary Injunction
3. Receivership
4. Replevin
5. Support pendente lite

Ø are writ and processes available during the pendency of an action to preserve and protect certain rights and interests pending
the result of the final judgment in the case.

When may it be How much should

availed? be the Bond
posted?
Preliminary May be sought at The amount of bond
Attachment any stage of the is addressed to the
action but before sound discretion of
final judgment. the court.
Preliminary -do- -do-
Injunction
Receivership Maybe filed at any Bond is mandatory
stage of the action and the court fixes
and even after final it.
judgment.
Replevin Must be file before The bond is double
the defendant filed the value of the
his answer. personal property
seized.
Support Maybe sought at No bond is
pendente lite any stage of the generally required.
action and even for
the first time on
appeal.

RULE 57

PRELIMINARY ATTACHMENT

What Are Its Purposes?

1. To seize the property of the debtor in advance of the final judgment and to hold it for purposes of satisfying the said judgment
2. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in instances
where summons cannot be effected.

What Are The Requirements?

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

When Shall It Be Discharged?

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

RULE 58

PRELIMINARY INJUNCTION

What is Preliminary Injunction?

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

The Kinds Of Injunction

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

What Is Its Purpose?

- to preserve the status quo, i.e., the last actual, peaceable, uncontested status which precedes the pending controversy.

RULE 59

RECEIVERSHIP

Who is a Receiver?
- person appointed by the court in behalf of all the parties to an action for the purpose of preserving the property involved in the suit
and to protect the rights of all the parties under the direction of the court.
- as a rule, a party to the case nor the clerk of court should not be appointed.

Note: no action maybe filed against the receiver without leave of court.

Note: Ex parte appointment of a receiver is no longer authorized, a hearing must be conducted for that purpose.

What Are The Requirements?

1. Affidavit – that the applicant has interest in the property that is the subject of the litigation and there is an inevitable damage to
it thus, the court must appoint a receiver.
2. Bond – in the amount fixed by the court, to cover all the damages by reason of the appointment of a receiver. The court may
require additional bond as further security.

RULE 60
 REPLEVIN

What Is Its Purpose?

- to recover the possession of personal property.

What Are The Requirements?

1. Affidavit – must allege that the applicant is the owner or entitled to possess the property, the description of the property, the
actual ‘market’ value of the property, and the person and why he withheld the property from the applicant.
2. Bond – the amount to be posted must double the value of the property as stated in the affidavit.

RULE 61

SUPPORT PENDENTE LITE

What Is Its Purpose?

Ø To compel adverse party to provide support while action is pending in court.
Ø No bond is required from the applicant.
Ø The application must be verified and shall be set for hearing not more than three(3) days from the filing of the petition.

SPECIAL CIVIL ACTION

RULE 62
INTERPLEADER

What is Interpleader?
Ø It is a Special Civil Action whereby a person who has property in his possession or an obligation to perform, either wholly or
partially, who claims no interest in the subject, goes to the court and ask that conflicting claimants to that property or obligation be
required to litigate among themselves in order to determine finally who is entitled to the same.
Ø E.g. a) a warehouseman, with goods being claimed by 2 or more persons.
b) an insurer, with 2 or more claimants to an insurance proceeds.

RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES

What are the requisites for Declaratory Relief?

1. there is a justiciable controversy.
2. there must be adverse claim between the real parties in interest.
3. the subject matter is a written instrument, (such as a deed, will, contract), statute or a law.
4. the relief sought is to determine the rights and duties under the written instrument or statute.
5. there must be no breach or violation of the written instrument or statute yet. [Note: The concept of a cause of action as “an act
or omission by which a person violates the rights of another” under ordinary civil action does not apply.]
6. there are no other available or sufficient remedy.

Instances When the Court Refuse to Grant Declaratory Relief?

1. When the decision would not terminate the controversy which gives rise to the action.
2. When the declaration is not necessary and proper under the circumstances.

When should it not be used?

1. to be declared as a Filipino citizen.
2. to solve political question
 3. to determine hereditary rights
4. to resolve hypothetical or theoretical questions
5. those involving administrative cases (must first avail of the principle of exhaustion of administrative remedies)

Conversion Into Ordinary Action

Ø If after the filing of the petition but before the rendition of judgment, a breach or violation occurs, then the petition may be
converted into an ordinary action.

RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE COMELEC AND COA

Time for Filing the Petition

Ø Within thirty (30) days from notice of the judgment or final order sought to be reviewed.
Ø If the motion for reconsideration is denied, the aggrieved party has the remaining period to file the petition, but not less than
five(5) days in any event, reckoned from notice of denial.

Mode of Review
v To be filed exclusively to the Supreme Court.
v Petition for Review under rule 65.

[Note: The filing of the petition shall not stay the execution of the judgments or final orders, unless ordered by the Supreme Court.]

RULE 65
CERTIORARI, PROHIBITION, AND MANDAMUS

v CERTIORARI
Requisites:
1. there must be a controversy
2. the respondent is a tribunal, board or an officer exercising judicial or quasi-judicial functions [discretionary acts].
3. the respondents acted:
a. without jurisdiction
b. in excess of jurisdiction
c. with grave abuse of discretion amounting to lack or excess of jurisdiction
4. there must be no appeal or other plain, speedy and adequate remedy.

EXCLUSIVE REMEDY OF APPEAL AND CERTIORARI

GENERAL RULE: If after judgment and the petition for certiorari is availed of instead of the remedy of appeal, the certiorari must fail
because it may not be resorted to as a substitute to appeal; in such a case appeal is deemed abandoned.
EXCEPTIONS: Even when appeal is available, a writ for execution may be allowed;
1. When the appeal does not constitute a speedy and adequate remedy.
2. When judgment were issued either in excess of or without jurisdiction.
3. When for certain special considerations as public policy or public welfare.
4. When the judgment is patently void.
5. When the decision in the certiorari case will avoid future actions.

PROHIBITION
Requisites
1. there must be a controversy
2. the respondent is a tribunal, board or an officer exercising judicial, quasi-judicial [discretionary acts] or ministerial functions.
3. the respondent acted:
a. without jurisdiction
b. in excess of jurisdiction
c. with grave abuse of discretion amounting to lack or excess of jurisdiction
 4. there must be no appeal or other plain, speedy and adequate remedy.

MANDAMUS
Requisites
1. there must be a clear legal right or duty.
2. the act performed must be practical- within the powers of the respondent to perform such if issued and he can comply with it
or else the essence will be defeated.
3. the respondent must be exercising a ministerial duty.
4. the duty or act to be performed must be existing – a correlative right will be denied if not performed by the respondents.
5. there must be no appeal or other plain, speedy and adequate remedy.

NOTE: An ordinary action for certiorari, prohibition and mandamus are independent action thus:
1. does not interrupt the course of the principal action.
2. does not affect the running of the prescriptive period involved in the case.
3. does not stay the execution of the judgment, unless a TRO or a PI is issued.

EXHAUSTION OF ADMINISTRATIVE REMEDY

GENERAL RULE: a motion for reconsideration is a prerequisite before the filing of a petition for certiorari, prohibition or mandamus.
Its purpose is to give the court a quo the opportunity to correct itself.
EXCEPTIONS:
1. If the judgment or order is patently void.
2. If there is extreme urgency.
3. If the issue has been raised and promptly passed by the court.
4. If the issue is purely a question of law.
5. If for public purpose.

RULE 66
QUO WARRANTO

What is Quo Warranto?

Ø It is a special civil action to determine the right to the use or exercise of an office or a franchise, and to oust the holder from its
enjoyment if his claim is not well founded or if he has forfeited his right to enjoy the privilege.

Classification of a Quo Warranto proceedings.

1. Mandatory- brought by the Solicitor General or a public prosecutor when:
a. directed by the president, and
b. upon complaint or when he has reason to believe that it can be established by proof.
2. Discretionary- brought by the Solicitor General or a public prosecutor upon the request a person but there must be:
a. leave of court, and
b. indemnity bond

NOTE: The period for the filing of Quo Warranto proceedings is within one(1) year from the date the cause of action arose.

DISTINCTIONS
QUO WARRANTO
1. There is a usurpation of
public office by another
and assumes office.
MANDAMUS
There is an ousting from
office by another but does
not assume the office.

2. The right to office of the The right or legal duty is

occupant is not clear so clear, so the purpose of the
this right becomes the action is to enforce the
subject of the action. right.
 QUO WARRANTO
1. As to the basis:
The occupant of the office
is disqualified from
holding the office because
of ineligibility or disloyalty
to the republic.
ELECTION CONTEST
The person holding the
office is not entitled to it
because of irregularity in
the conduct of election.

2. As to the effect:
If the petitioner succeeds,
the respondent will be
ousted and the petitioner
will assume the office.
If the protestant succeeds,
he will assume office if he
had obtained a plurality of
the valid vote.

RULE 67
EXPROPRIATION

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

Two Stages in Expropriation

1. Determine first if the property taken is for public purpose.
2. If it was determined that it is for public purpose, resolve the issue on the amount to be paid or the just compensation

Just Compensation is determined at the time of the taking of the property or at the filing of the complaint which ever comes first. It is
the fair and full equivalent for the loss sustained by the defendant.

NOTE: The conflict in the payment of just compensation or an appeal does not delay the right of the plaintiff to enter into the property
and appropriate the same for public use.

RULE 68
FORECLOSURE OF REAL ESTATE MARTGAGE

Parties:
1. mortgagee and mortgagor
2. successor in interest
3. junior encumbrancer/s

Nature and purpose:

§ The remedy used for the satisfaction of any monetary obligation, which a person owes to another, by proceeding against the
property used to secure the obligation.
§ It purpose is to cut off the rights of the owner of the property mortgaged used to secure the obligation and all rights acquired
thereto.

NOTE:
ü Within the one(1) year period given to the mortgagor to redeem, the buyer may take possession of the property but must pay a
bond equivalent to the amount of a rent.
ü If there is deficiency judgment, the action may continue in the same proceedings except to non-resident defendants.
 Effect if the Junior Encumbrancer is not pleaded:
1. his right is not affected because he is merely a necessary party not an indispensable party.
2. the remedy of the senior encumbrancer is to file independent actions to foreclose the right to redeem by requiring the junior
encumbrancer to pay the amount stated in the order of execution.

JUDICIAL
FORECLOSURE
Requires court intervention
There is only an Equity of
Redemption is the right of
the defendant mortgagor to
extinguish the mortgage and
retain ownership of the
property by paying the debt
within 90-120 days after the
entry of judgment or even
after the sale but before
confirmation.
Governed by Rule 68
EXTRAJUDICIAL
FORECLOSURE
No court intervention
necessary
There exist a Right of
Redemption is the right of
the debtor, his successor in
interest or any judicial
creditor or judgment
creditor of the debtor or any
person having a lien on the
property subsequent to the
mortgage or deed of trust
under which the property is
sold to redeem the property
within one(1) year from the
registration of the of the
sheriff’s certificate of
foreclosure sale.
Governed by sec.29-31 of
Rule 39

RULE 69
PARTITION
What is Partition?
Ø It is the process of dividing and assigning property owned in common among the various co-owners in proportion to their
respective interests in said property.

When can Partition be made?

GENERAL RULE: It can be made anytime and the right to demand partition is imprescriptible.
EXCEPTION: If the co-owner asserts adverse title to the property in which case the period of prescription runs from such time of
assertion of the adverse claim.

TWO(2) STAGES:
1. Determination of the Propriety of the Partition. Includes the question whether or not the property is owned in common or whether
or not all the co-owners are made parties. If the court find that there must be partition, the aggrieved party may appeal the
decision.
2. Actual Partitioning of the Subject Property.
Ø The parties may agree on the partition by executing a Deed of Partition, where it will become final after the court approves it.
The aggrieved party may appeal the decision.
Ø If the parties does come into an agreement as to how to partition the property, the case will be heard through trial by
commissioner.
NOTE: No partition of personal property.

RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER

FORCIBLE ENTRY UNLAWFUL DETAINER

§ Possession of the land by § Possession is lawful but it
the defendant is unlawful becomes illegal because of
 from the beginning as he
acquires it by Force,
Intimidation, Strategy,
Threat or Stealth [FISTS]
§ No previous Demand is
necessary.
§ The plaintiff must prove
that he was in prior
physical possession of the
premises until he was
deprived.
§ The 1 year period is
generally counted from
the date of actual entry on
the land.
the termination of the right
to the possession of the
property under his contract
w/ the plaintiff.
§ Formal Demand is
mandatory if the ground is
non-payment of rentals or
failure to comply with the
lease contract
§ The plaintiff need not have
been in prior physical
possession.
§ Period is counted from the
date of last demand or last
letter of demand.

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

a. to pay and vacate; or
b. to comply with the conditions of the lease and vacate.

How is Demand Made?

1. personally
2. by posting it at the premises, possible only if there no person found in the premises
3. substituted service
4. registered mail

GENERAL RULE: Judgment of the MTC in ejectment proceedings is immediately executory when:
1) The defendant perfects his appeal.
2) He files sufficient supersedeas bond to pay the rents, damages and cost accruing down to the time of judgment appealed from.
[NOTE: supersedeas bond is required only if arrearages in the rentals is awarded in the judgment by the court]
3) He deposits with the appellate court the amount of rent due from time to time under a contract or reasonable amount for the use
and occupation of the property in the absence of a contract.

RULE 71
CONTEMPT

DIRECT CONTEMPT INDIRECT CONTEMPT

1. Nature:
§ Summary in nature § There must first be a
hearing
2. Grounds:
c. Misbehavior in the a. Misbehavior of an
presence of or so near the officer of a court in the
a court as to interrupt a performance of his
proceedings. official duties.
d. Disrespect towards the b. Disobedience or
court or judge. resistance to a lawful
e. Offensive personalities writ, order or judgment.
towards others. c. Any abuse or any
f. Refusal to be sworn or unlawful interference
to answer as a witness or with the proceedings
to subscribe an affidavit not constituting direct
or deposition. contempt.
d. Any improper conduct
tending to degrade the
administration of
justice.
e. Assuming to be an
attorney or an officer of
the court w/o authority.
f. Failure to obey a
subpoena
g. Rescue, or attempted
rescue of a person or
property in the custody
of an officer.
3. Penalty:
a. RTC- fine not exceeding a. RTC- fine not
P2,000 or imprisonment exceeding P2,000 or
not exceeding 10 days or imprisonment not
both. exceeding 10 days or
b. MTC- fine not exceeding both.
P200 or imprisonment b. MTC- fine not
not exceeding 1 day or exceeding P200 or
both. imprisonment not
exceeding 1 day or
both.