Hizon Notes - Provisional Remedies and Special Civil Actions

NOTES ON PROVISIONAL REMEDIES AND SPECIAL CIVIL ACTIONS
Kenneth and King C. Hizon (4A) _________________________________________________________________________________________________________

UNIVERSITY OF SANTO TOMAS
Faculty of Civil Law
A.Y. 2013-2014
Second Semester
PROVISIONAL REMEDIES AND

SPECIAL CIVIL ACTIONS
PROVISIONAL REMEDIES 3. Under Sec.33 of B.P. 129, as amended, the jurisdiction

of the Municipal Trial Court includes the grant of
The Court may, upon proper application by the plaintiff, order the provisional remedies in proper cases
defendant to surrender the possession of the property to the 4. Where the principal action is for specific performance,
plaintiff even before the main case has been resolved. The order any provisional remedy applied for in the case can only
of the court partakes only of an interim remedy because if the be issued by the RTC hearing the same case. The
evidence adduced in the proceedings unequivocally shows that it provisional remedy cannot be issued by a MTC which
is the defendant who is rightfully entitled to the possession of the has no jurisdiction over an action for specific
land, then a judgment awarding the possession to the defendant performance, an action incapable of pecuniary
will have to be rendered by the court. estimation.
5. Where the main action is one for support , the
CASE 1: The plaintiff-mortgagee files an action to foreclose the provisional remedy for support pendent lite may not be
real estate mortgage against the defendant. The subject building granted by a MTC because the main action is one within
is rapidly depreciating in value because of the gross neglect of the jurisdiction of the family court.
the mortgagor. What provisional remedy may be availed of?
KINDS OF PROVISIONAL REMEDIES UNDER THE RULES OF COURT
A: The plaintiff-mortgagee may avail of a remedy even before the
finality of proceedings by applying for the appointment of a 1. Preliminary attachment
receiver who will be tasked with the administration and 2. Preliminary injunction
preservation of the property. 3. Receivership
4. Replevin
CASE 2: An illegitimate minor who, with the assistance of his 5. Support pendent lite
mother files an action for support against his natural father. The
minor is impoverished, the mother being sick, jobless and poor. Deposit as a provisional remedy in the exercise of equity
What is the provisional remedy available? jurisdiction of the court:
A: While the principal action for support is pending, he may apply CASE 3: In an action for specific performance and the
for support pendente lite or support pending the resolution of the nullification of sale and title plus damages, the buyer moved that
case. the seller be ordered to deposit with the cashier of the trial court
the P10M down payment on the land paid by the buyer to
NATURE OF PROVISIONAL REMEDIES: prevent the dissipation of the amount pending the resolution of
the case. The seller opposed this on the ground that deposit is
1. Temporary, preliminary or tentative not one of the provisional remedies under the Rules of Court.
2. They are not causes of action in themselves but merely
adjuncts to the main suit. Such remedies presuppose an A: This is a case of silence or insufficiency of the Rules of Court.
existing principal or main action. The trial court in the exercise of its equity jurisdiction may validly
order the deposit of the 10M down payment in court. The
PURPOSE OF PROVISIONAL REMEDIES: purpose of the exercise of equity jurisdiction in this case is to
prevent unjust enrichment and ensure restitution. Equity is the
1. To preserve or protect their rights or interests while the principle by which substantial justice may be attained in cases
main action is pending where the prescribed or customary forms of ordinary law are
2. To secure judgment inadequate (Reyes v. Lim).
3. To preserve the status quo
4. To preserve the subject matter of the action PROVISIONAL REMEDIES IN CRIMINAL CASES:
COURT WITH JURISDICTION OVER PROVISIONAL REMEDIES: Sec. 1 of Rule 111: When a criminal action is instituted, the civil
action for the recovery of civil liability arising from the offense
1. The court which grants or issues a provisional remedy is charged shall be deemed instituted with the criminal action.
the court which has jurisdiction over the main action.
2. The authority to grant a provisional remedy is not the In connection with the civil action deemed instituted with the
sole prerogative of superior courts. Even inferior courts criminal action, the provisional remedies in civil actions may be
may grant a provisional remedy in an action pending availed of insofar as they are applicable.
with it and within its jurisdiction.
Facultad de Derecho Civil 1

Sec. 2 of Rule 127: When the civil action is properly instituted in a. A seizure of the property under legal process, whereby it
the criminal action as provided under Rule 111, the offended is brought into the actual custody of the law
party may have the property of the accused attached as security Ex: Attachment proceedings
for the satisfaction of any judgment that may be recovered from b. The institution of the legal proceedings wherein, under
the accused in the following cases: special provisions of law, the power of the court over
the property is recognized and made effective.
(a) When the accused is about to abscond from the Ex: Proceeding to register title of the land under the
Philippines system for the registration of land where the court,
(b) When the criminal action is based on a claim for money without taking actual physical control over the property,
or property embezzled or fraudulently misapplied or assumes, at the instance of some person claiming to be
converted to the use of the accused who is a public the owner, to exercise a jurisdiction in rem over the
officer, officer of a corporation, attorney, factor, property and to adjudicate the title in favor of the
broker, agent or clerk, in the course of his employment petitioner against all the world
as such, or by any other person in a fiduciary capacity,
or for a willful violation of duty GRANT OF PRELIMINARY ATTACHMENT IS DISCRETIONARY:
(c) When the accused has concealed, removed, or There is nothing in Rule 57 which indicates that the grant of a writ
disposed of his property, or is about to do so; and of preliminary attachment is a matter of right on the part of the
(d) When the accused resides outside the Philippines applicant.
Strict construction of the rule: The rules on the issuance of the

writ of attachment must be strictly construed in favor of the
RULE 57 defendant. The remedy of attachment is harsh, extra-ordinary and
PRELIMINARY ATTACHMENT summary in nature (Gruenberg v. CA).
SECS. 1-4 WHO MAY AVAIL OF PRELIMINARY ATTACHMENHT: Sec. 1 of

Rule 57 provides that the plaintiff or any proper party may have
PRELIMINARY ATTACHMENT- the provisional remedy, in virtue of the property of the adverse party attached. The term “any proper
which a plaintiff or other party may, at the commencement of the party” is broad enough to refer also to a defendant who files a
action or at any time thereafter, have the property of the adverse counter-claim, cross-claim or third-party complaint (Borja v,
party taken into the custody if the court as security for the Platon).
satisfaction of any judgment that may be recovered.
PURPOSE OF PRELIMINARY ATTACHMENT: It is designed to seize
Nature of Preliminary Attachment: It is a remedy which is purely the property of the debtor before final judgment and put the
statutory in respect of which the law requires a strict construction same in custodial egis even while the action is pending for the
of the provisions granting it. It cannot exist without a statute satisfaction of a later judgment.
granting it.
Philippine Commercial International Bank v. Alejandro: The
Legal basis: Its legal basis for the application is not only a direct purposes of preliminary attachment are:
provision of the Rules of Court but also in the Civil Code which
authorizes a creditor to pursue the property of the debtor (Art. 1. To seize the property of the debtor in advance of final
1177, NCC). judgment and to hold it for purposes of satisfying said
judgment, as in the grounds stated in paragraphs (a) to
When applied: It is only resorted before the finality of the (e) of Sec. 1, Rule 57
judgment to secure property of the adverse party and to prevent 2. To acquire jurisdiction over the action by actual or
its dissipation. Once the judgment has become final and constructive seizure of the property in those instances
executory, the attachment becomes a final one and is issued in where personal or substituted service of summons on
order to satisfy the judgment. defendant cannot be effected, as in paragraph (f)
No separate action called preliminary attachment. It is not a IN PERSONAM TO QUASI IN REM: An instance when personal or
distinct proceeding and is availed of during the pendency of a substituted service of summons cannot be effected is when the
principal action because it is a mere provisional remedy. defendant is a non-resident and at the same time outside of the
Philippines, and the suit against him requires jurisdiction over his
Attachment is in the nature of a proceeding quasi-in rem person because the action is one in personam. Jurisdiction over
although sometimes referred to as an action in rem: It is against his person may not be acquired by personal or substituted service
the particular property, enforceable against the whole world. of summons. The remedy under a situation such as this is for the
court to acquire jurisdiction over the property of the defendant in
NOTE: While attachment is an action in rem or quasi in rem, this the Philippines and have it attached so that the court may acquire
classification is true only when the defendant does not appear in jurisdiction to try the case on the basis of its jurisdiction over the
the action. If the defendant appears, the cause becomes mainly a property of res.
suit in personam, with the added incident, that the property
attached remains liable, under the control of the court, to answer When availed of and is granted in an action purely in personam,
to any demand which may be established against the defendant attachment converts the action to one that is quasi-in rem. This
by the final judgment of the court. transformation of the nature of the action, dispenses with the
need for acquiring jurisdiction over the person of the defendant.
Jurisdiction over the property, how acquired: Banco-Español
Filipino v. Palanca: Jurisdction over the property which is the NOTE: In proceeding in rem or quasi in rem, jurisdiction over the
subject of the litigation result either from: person of the defendant is not prerequisite to confer jurisdiction
over the res. Nonetheless, summons must be served upon the

defendant not for the purpose of vesting the court with garnishee. The garnishee
jurisdiction but merely for satisfying the due process requirement. need not be impleaded
as a party to the case. All
STAGE OF THE PROCEEDINGS WHEN PREL. ATTACHMENT MAY that is necessary is
BE APPLIED FOR: service upon him of the
writ of garnishment.
a. At the commencement of the action
b. At any time before entry of judgment NOTE: In legal contemplation,
garnishment is a forced novation,
At the commencement of the action: The application may be by the substitution of creditors.
incorporated in a verified complaint alleging all the grounds relied The judgment debtor, who is the
upon and complying with the requisites for the grant of the original creditor of the garnishee
application is, through the service of the writ
of garnishment, substituted by the
At any stage of the proceedings, even after judgment, but before judgment creditor who thereby
its entry: Under Sec. 2 of Rule 36, the date of finality of the becomes the creditor of the
judgment or final order shall be deemed to be the date of its garnishee.
entry. Levy on execution It is the process available after the
judgment has become executor by
which the property of the
KINDS OF ATTACHMENTS judgment obligor is taken into the
custody of the court before the
Preliminary One issued at the commencement sale of the property on execution
attachment of the action or at any time before for the satisfaction of a final
entry of the judgment as security judgment.
for the satisfaction of any
judgment that may be recovered in GROUNDS FOR THE ISSUANCE OF A WRIT OF PREL.
the cases provided for by the rules ATTACHMENT:
Garnishment A kind of attachment in which the
attaching party seeks to subject to CASE 4: A borrowed money from B. A failed to pay despite
his claim either the property of the demand on due date. B sued A in the court. Is preliminary
adverse party in the hands of a attachment available?
third person called the garnishee,
or the money which said third A: No. Insolvency or mere inability of the debtor to fulfill his
person owes the adverse party. obligation to pay a debt in an action for a sum of money is not one
of those cases enumerated by the law.
a. Garnishment is a specie
of attachment for A. Recovery of a specified amount of money or damages
reaching credits (Sec. 1 (a), Rule 57)
belonging to the
judgment DR and owing NOTE: That the amount be specified is a clear requirement of the
to him from a stranger to rule. The cause of action need not arise from contract alone. It
the litigation; may arise from law, quasi-contract, delict, or quasi-delict.
b. This does not involve
actual seizure of the A writ of preliminary attachment cannot be issued for moral and
property which remains exemplary damages and other unliquidated and contingent
in the hands of the claims.
garnishee. Garnishment
simply impounds the It must also be shown that the departure is with intent to defraud
property in the his creditors.
garnishee’s possession
and maintains the status B. Action for money or property embezzled
quo until the main action
is finally decided. This ground presupposes that money or property has been
c. Jurisdiction over the embezzled, fraudulently misapplied or converted to his own use
garnishee is acquired by by the defendant and the action is for the recovery of such money
the mere service upon or property. The defendant is acting in a fiduciary capacity or one
him of the copy of the willfully violating his duty and commits the act in the course of his
writ of garnishment with employment.
a notice that his debt to
the defendant or other Said defendant may be:
personal property of the
defendant under his 1. Public officer
control or possession is 2. Corporate officer
attached pursuant to the 3. Attorney
writ 4. Factor
d. Service of summons is 5. Broker
not required to bind the 6. Agent

7. Clerk NOTE: The situation does not solely refer to parties who are non-
residents but also to residents but on whom summons by
NOTE: Under this ground, it is the character of the office or the publication may be served.
duty of the defendant that is to be considered when prohibited
acts are performed. Non-residents: The attachment is intended to enable the court to
acquire jurisdiction over the res by converting the action in
C. Recovery of property unjustly or fraudulently taken personam to an quasi in rem and thus, justifying summons by
publication and other modes of summons under Sec. 15, Rule 14
NOTE: This ground does not refer to a defendant acting in (Extrajudicial service of summons)
fiduciary capacity. The applicant must further show that aside
from the acts already mentioned, the defendant has concealed, Parties on whom summons may be served by publication: This
removed or disposed of the property for the purpose of its being includes:
found or taken either by the applicant or an authorized person.
1. Resident defendants whose identity or whereabouts are
D. Fraud in contracting or performing an obligation unknown
2. Resident defendants who are temporarily out of the
Basis: The fraudulent act of a party in either: country
1. Contracting the debt or incurring the obligation
2. In the performance of his obligation NOTE: Where the identity or whereabouts of the defendant is
unknown, Sec. 14 of Rule 14 authorizes summons by publication
2 Kinds of Fraud contemplated: in any action against him. Hence, the action may be in rem, quasi-
in rem, or in personam.
DOLO CAUSANTE DOLO INCIDENTE
The fraud used to induce Fraud employed by a party Resident defendant temporarily out of the Philippines:
another to enter into a in the fulfillment of his preliminary attachment may be allowed because the defendant
contract. obligation or after the may be summoned by publication in accordance with Sec. 16 of
obligation has been Rule 14 in relation to Sec 15 of Rule 14.
contracted
Under Sec. 16 of Rule 14, summons by publication may be served
This kind of fraud renders This fraud only obliges the
the contract annullable person employing it to pay in any action commenced against residents temporality out of the
Philippines.
damages
Hence, in actions against residents temporarily out of the
New rule: The willful delivery of counterfeit money in payment of
Philippines, the court need not always attach the defendant’s
a debt may be considered as a ground for preliminary attachment.
property in order to have authority to try the case.
CASE 5: X induced his friend, Y to grant him a loan using a
NOTE: In order to acquire jurisdiction in actions in personam
spurious land title as security. Without the security, Y would not
where the defendant resides out of and is not found in the
have extended the loan to him. May Y apply for preliminary
Philippines, it becomes a matter of course for the court to convert
attachment?
the action into a proceeding in rem or quasi in rem by attaching
the defendant’s property.
A: Yes. The fraud committed by Mr. X is a fraud in contracting the
obligation (dolo causante).
CASE 6: Y is a stockholder of a local corporation. Y owns 20% of
the shares of the shares of said corporation. Y defaults on a
To constitute a ground, fraud should be committed upon
manufacturing contract with Z. Z sues for specific performance
contracting the obligation sued upon: A debt is fraudulently
and damages and, on the ground that Y is fleeing from the
contracted if at the time of the contracting it, the debt has a
country to avoid his creditors, seeks to attach 20% of a parcel of
preconceived plan or intention not to pay.
land that belongs to the corporation. Can Z secure such
attachment granting that the averments of his petition are
NOTE: Fraud is a state of mind and need not be proved by direct
sufficient?
evidence but may be inferred from the circumstances attendant in
each case.
A: No. The property sought to be attached is actually the property
of the corporation which is not the defendant in the case. The
E. Removal or disposal of property with intent to defraud
corporation has a personality separate and distinct from that of its
stockbrokers
2 Elements:
See pages 32-35 for examples and illustrations.
1. A party has removed or disposed of his property, or is
about to do so
Requisites for the issuance of an order of preliminary
2. The acts in letter “a” must be with intent to defraud of attachment; affidavit and bond
the creditor
1. Filing of the requisite affidavit and bond before the
NOTE: The provision does not require that money or property be order of attachment is issued.
embezzled, fraudulently misapplied or converted or property be
unjustly or fraudulently taken, detained, or converted. NOTE: The rule does not require a hearing because the writ of
attachment may be issued ex parte
F. Actions against non-residents or on whom summons
may be served by publication

The affidavit need not be executed by the applicant. It may be 1. Service of summons;
executed by some other person who personally knows the facts 2. Copy of the complaint;
3. Application for attachment;
2. Bond in the amount fixed by the court and executed to 4. Applicant’s affidavit and bond; and
the adverse party. This is called the attachment bond. 5. Order and writ of attachment (Sec. 5).
CONTENTS OF THE AFFIDAVIT: Service is necessary to acquire jurisdiction over the defendant
before the writ is implemented and to comply with due process
1. That a sufficient cause of action exists requirements of the law.
2. That the case is one of those mentioned in Sec. 1 of Rule
57 STAGES IN THE GRANT OF P.A.:
3. That there be no other sufficient security for the claim
sought to be enforced by the action 1. Court issues the order granting the application;
4. That the amount due to the applicant, or the value of 2. Writ of attachment issues pursuant to the order
the property the possession of which he is entitled to granting the writ; and
recover, is as much as the sum for which the order is 3. Writ is implemented.
granted above all legal counterclaims
NOTE: In the first 2 stages, jurisdiction over the defendant is not
rd
necessary. In the 3 stage, court must have jurisdiction over the
Condition of applicant’s bond: The bond executed in favor of the person of the defendant. Without such jurisdiction, court has no
adverse party is conditioned upon the payment by the party power and authority to act in a manner against the defendant.
applying for an order of attachment of all costs which the adverse
may be adjudged as entitled to and all damages which he may WHEN THE REQUIREMENT OF PRIOR CONTEMPORANEOUS
sustain by reason of the attachment, if it shall be finally adjudged SERVICE SHALL NOT APPLY:
that the party applying for attachment was not entitled thereto.
a. Summons could not be served personally despite
NOTE: The bond shall not answer for the damages sustained diligent efforts;
which do not arise by reason of the attachment. b. Summons could not be served by substituted service
despite diligent efforts;
ISSUANCE OF THE ORDER: c. Defendant is a resident of the Philippines temporarily
1. Ex parte absent therefrom;
2. Upon motion with notice and hearing d. Defendant is a non-resident of the Philippines; and
e. Action is one in rem or quasi in rem.
Ex parte and even before summons is served upon the
defendant (even before jurisdiction has been acquired over the RATIO: Without these exceptions, the party against whom the
person of the defendant): However, the writ may not be enforced writ is directed would be able to frustrate the ends of justice by
and validly implemented unless preceded by simultaneously the simple expedient of disappearing and intentionally himself
accompanied by service of summons, copy of the complaint, beyond the reach of court processes.
application for attachment, order of attachment and the
attachment bond. The implementation of the writ of attachment CASE 7: Katy filed an action against Tyrone for collection of 1M in
without the required jurisdiction over the person is null and void. the RTC with an ex parte application for writ of preliminary
attachment. Upon posting of an attachment bond, the court
Ratio for ex parte granting: It is possible that during the course of granted the application and issued the writ.
the hearing, the party against whom the writ is sought may
dispose of his property or abscond before the writ is issued. The sheriff then immediately served notice of garnishment on
the bank to implement the writ. The following day, sheriff
NOTE: A motion to quash the writ may not be granted without proceeded to Tyrone’s house and served him the summons, with
due notice to the applicant and only after hearing. A hearing is the copies of the complaint, etc. Thereafter, Tyrone filed a
necessary. Motion to dismiss and dissolve the writ on the following
grounds:
CONTENTS OF THE ORDER OF ATTACHMENT: The order must
require the sheriff of the court to attach so much of the property a. Court did not acquire jurisdiction over his person
in the Philippines of the party against whom it is issued, not because the writ was served ahead of the summons;
exempt from execution, as may be sufficient to satisfy the b. Writ was improperly implemented;
applicant’s demand, unless such party makes a deposit or gives a c. Writ was improvidently issued because the obligation
bond in an amount equal to the fixed in the order, which may be was already fulfilled.
the amount sufficient to satisfy the applicant’s demand or the
value of the property to be attached as stated by the applicant, A:
exclusive of costs (Sec. 2, Rule 57)
a. The court properly acquired jurisdiction over the person
PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS: Writ is of the defendant even of the writ was served ahead of
implemented by the sheriff who shall make a levy on attachment the summons. What was affected was the enforceability
pursuant to the writ issued under Rule 57, Sec.2. of the writ. See Sec.5.
b. Writ was improperly implemented because it was
However, sheriff is not allowed to make a levy on attachment if served prior to the service of summons;
such levy is not preceded by or contemporaneously accompanied c. Defense of payment to discharge the attachment is not
by: proper. Such defense should have been invoked either

in a ground for a motion to dismiss or as an affirmative or transferred or the debts or credits are paid to the clerk, sheriff
defense. or other proper officer of the court issuing the attachment (Sec.
8).
SEC. 5-6
ATTACHMENT OF INTEREST IN PROPERTY BELONGING TO THE
DUTIES OF THE SHERIFF: Sheriff is required to proceed with the ESTATE OF THE DECEDENT: Sheriff shall serve the executor,
attachment without delay and with all reasonable diligence unless administrator or other personal representative of the decedent
the party against whom the writ is directed makes a deposit with the following:
court or gives a counter-bond.
a. Copy of the writ; and
Sheriff required to attach the property must await the judgment b. Notice that said interest is attached (Sec. 7(e)).
and its execution. He cannot attach every property of the adverse
party but only so much of the property located in the Philippines EFFECT OF ATTACHMENT OF INTEREST IN PROPERTY BELONGING
as may be sufficient to satisfy the applicant’s demand and not TO THE ESTATE OF THE DECEASED: It does not have the effect of
more. impairing the powers of administration of the executor,
administrator or personal representative of the decedent.
He is also precluded from attaching any exempt property from Representative however is obliged to report the attachment to
execution. the court when the petition is filed (Sec. 9).
Sheriff must likewise without delay make a return thereon to the ATTACHMENT OF PROPERTY IN CUSTODIA LEGIS; REQUIREMENT:
court from which the writ is issued, with a full statement of his Property in custodial egis may be the subject of preliminary
proceedings under the writ and complete inventory of the attachment. What will arise in this event will be a priority in liens
property attached, together with any counter-bond given by the which means that the first attachment will have priority over
party against whom attachment is issued and serve copies thereof subsequent attachments. This merely operates as a lien and does
on the applicant. not mean that the attaching court will wrest custody from another
court.
SEC. 7-10
Where to file: A copy of the writ of attachment shall be filed with
ATTACHMENT OF REAL PROPERTY AND GROWING CROPS: By the proper court or quasi-judicial agency, and notice of the
filing with the RD the ff: attachment served upon the custodian of said property.
1. Copy of the order of attachment; EXAMINAION OF PARTY WHOSE PROPERTY IS ATTACHED OR OF

2. Description of the property attached; and PERSON INDEBTED TO HIM: The Rules empower the court to
3. Notice that the property subject of the writ is attached examine under oath the party whose property is attached for the
(Sec. 7(a), Rule 57). purpose of giving information respecting his property. Also, all
other persons in possession of or controlling his property or credit
ATTACHMENT OF PERSONAL PROPERTY CAPABLE OF MANUAL belonging to the person whose property is attached may also be
DELIVERY: Sheriff shall take the property and safely keep it in his required to appear and be examined under oath before the court.
custody. He shall issue the corresponding receipt for the property After such examination, the court may issue an order requiring
taken (Sec. 7 (b)). the delivery to the clerk of court any personal property capable of
manual delivery, to await the judgment in the action (Sec. 10 of
ATTACHMENT OF STOCKS OR SHARES OR INTEREST THEREIN: By Rule 57).
leaving with the president or managing agent the following:
SEC. 11
1. Copy of the writ; and
2. Notice stating the stock or interest of the party against SALE OF PROPERTY AFTER LEVY ON ATTACHMENT AND BEFORE
whom attachment is issued is attached in pursuance of ENTRY OF JUDGMENT: A writ of preliminary attachment does not
such writ (Sec. 7(c)). have the effect of a final judgment over the property attached.
The property remains under the custody of the court to await
ATTACHMENT OF BANK DEPOSITS AND SIMILAR PROPERTY NOT judgment.
CAPABLE OF MANUAL DELIVERY: Sheriff must leave with the
person owing such debts, or having in his possession or under his GR: The property attached cannot be sold during the pendency of
control, such credits and other personal property, or with his the action
agent, the following:
XPN: Sec. 11 of Rule 57 as when the property attached is
a. Copy of the writ; perishable or that the interests of all interests of the parties to the
b. Notice that debts owing by him to the party against action will be subserved by the sale of the attached property
whom attachment is issued, and the credits and other
personal property in his possession, or under his control, SEC. 14
belonging to said party, are attached in pursuance of
such writ (Sec. 7(d)). PROCEEDINGS WHERE PROPERTY ATTACHED IS CLAIMED BY
THIRD PERSON:
EFFECT OF ATTACHMENT OF DEBTS, CREDITS AND SIMILAR
PERSONAL PROPERTY: The person having possession or control of 1. Tereceria by making an affidavit of his title thereto or his
debts, etc. shall be made liable to the applicant for the amount of right to the possession thereof, stating the grounds of
the property, debts and credits. Such liability continues until the such title or right. The affidavit shall be served upon the
attachment is discharged or until the judgment is satisfied. The sheriff while he has possession of the attached property.
liability shall cease if the property subject of the writ is delivered

GR: The sheriff shall not be bound to keep the property
under attachment Security Pacific Assurance Corp. v. Tria-Infante: Counter-bonds are
XPN: Bond is filed by the attaching party (Sec. 14 of Rule also replacements of the property attached, and just as the latter,
57). The purpose of this bond is to indemnify the sheriff may be levied upon after final judgment.
against any claim by the intervenor to the property
seized or damages arising from seizure, which the sheriff 2. By filing a motion to set-aside or discharge the
was directly responsible to the third party attachment on other grounds without need for filing a
2. The third-party claimant may also invoke the court’s ocunterbond
authority in the same case and move for a summary The motion shall be based on any of the following grounds:
hearing on his claim for the purpose of determining
whether the sheriff has acted rightly or wrongly in the a. The attachment was improperly or irregularly issued or
performance of his duties in the execution of the writ of enforced
preliminary attachment. b. The bond is insufficient
c. The attachment is excessive (but the discharge shall be
NOTE: The Court cannot pass upon the question of title limited to the excess)
to property with any character of finality but only d. The property is exempt from execution and as such, is
insofar as may be necessary to decide if the sheriff has also exempt from preliminary attachment
acted correctly or not.
The motion may be filed:
3. A motion for intervention is also possible because no a. Before levy
judgment has yet been rendered and, under the rules, a b. After levy
motion for intervention may be filed at any time before c. Even after the release of the attached property
the rendition of judgment by the trial court (Sec. 2, Rule
19). EFFECT OF THE DISCHARGE OF THE ATTACHMENT: The property
attached or the proceeds of any sale thereof, shall be delivered to
NOTE: It would not be procedurally possible for a third- the party making the deposit or giving the counterbond, or to the
party claimant to intervene during the execution stage person appearing on his behalf (Sec. 12, Rule 57),
of the judgment under Rule 39 because, by then, a
judgment has already been rendered. SECS. 15-20
4. Vindication of his claim in the same or separate action. DAMAGES FOR A WRONGFUL ATTACHMENT: Even a party who
Thus, he may file a separate action to nullify the levy loses in the main case, but is able to establish a right to damages
with damages resulting from the unlawful levy and by reason of improper, irregular or excessive attachment, may be
seizure. entitled to damages. There is no need for a favorable judgment in
favor of the party against whom attachment was issued in order
NOTE: This remedies are cumulative and any one of them may be that damage may be awarded.
resorted without availing of the other remedies.
Application for damages: May be filed:
CASE 8: X’s real property is being attached by the sheriff in the 1. Before the trial
civil action for damages against Y. X claims that he is not a party 2. Before appeal s perfected
to the case; that his property is not involved in the said case; and 3. Before the judgment becomes executor
that he is the sole or registered owner of the property. What
must X do to prevent the sheriff from attaching his property? NOTE: There must be notice to the attaching party and his surety
or sureties.
A: See the 4 remedies above.
Although the application is filed with the appellate court, the
SECS. 12 and 13 hearing of the application may be allowed to be heard and
decided by the trial court.
PREVENTING THE ATTACHMENT: By depositing with the court
from which the writ was issued or by giving a counter-bond Moral and exemplary damages: These damages may be
executed to the applicant, in an amount equal to the bond fixed recovered when it is alleged and established that the attachment
by the court in the order of attachment or to the value of the was not merely wrongful but also malicious.
property to be attached, exclusive of costs (Sec. 5 of Rule 57).
NOTE: Under Sec. 20 of Rule 57, the judgment for damages shall
DISCHARGE OF ATTACHMENT; COUNTER-BOND AND OTHER be included in the judgment on the main case. This rule suggests
GROUNDS: that the application for damages is not to be set up independently
of the main action. The rule directs that the recovery of damages
1. By filing a motion to discharge the attachment and be in the same action and included in the judgment of the case.
making a deposit and counter-bond
SEC. 15
NOTE: The movant shall file a motion and make a cash deposit, or
file a counter-bond executed to the attaching party with the clerk The sheriff shall make a return in writing to the court of his
of court where the application is made, in an amount equal to that proceedings under Sec. 15 of Rule 57.
fixed by the court in the order of attachment, exclusive of costs.
Rue if judgment is rendered against the attaching party: All the
After due notice and hearing, the court shall direct that the proceeds of the sales and money collected or received by the
attachment be discharged. The rule does not authorize ex parte sheriff, under the order of attachment, and all property attached
discharge of the writ.

remaining in any such sheriff’s hands, shall be delivered to the AGAINST WHOM THE WRIT IS DIRECTED:
party against whom attachment was issued.
1. Party
2. Court
3. Agency
RULE 58 4. Person
PRELIMINARY INJUNCTION
KINDS OF PRELIMINARY INJUNCTION
NATURE: An order granted at any stage of an action, prior to the
judgment or final order, requiring a party, court, agency or person PROHIBITORY MANDATORY
to perform or refrain from performing a particular act or acts. Commands one to refrain Commands the
from doing a particular act performance of some
It is merely temporary, subject to the final disposition of the positive act to correct a
principal action. wrong in the past
The act has not yet been The act has already been
It is a preservative remedy. performed because it is performed and this act has
restrained or prevented by violated the rights of
PURPOSE: To preserve the status quo of the matter subject of the the injunction another
action to protect the rights of the plaintiff during the pendency of PURPOSE
the suit, To preserve the status quo: To restore the status quo
prevent a future or and then preserve the said
AN EQUITABLE REMEDY: One who comes to claim equity must do threatened injury status quo which has been
so with clean hands. It is to be resorted to by a litigant to preserve restored.
his rights or interests where there is a pressing necessity to avoid
injurious consequences which cannot be remedied under any NOTE: Preliminary mandatory injunction is more cautiously
standard of compensation. It rests upon the existence of an regarded than a the other since, more than its function of
emergency or of a special reason. preserving the status quo between the parties, it also commands
the performance of an act.
NOT A JUDGMENT ON THE MERITS: It is generally based on an
initial and incomplete evidence. The evidence submitted during MAIN ACTION FOR INJUNCTION v. PRELIMINARY INJUNCTION
the hearing on an application for a writ of preliminary injunction is
not conclusive. MAIN ACTION PRELIMINARY INJUNCTION
An independent action Can only exist as an
ISSUANCE OF THE WRIT AS SUBJECT TO JUDICIAL DISCRETION: incident to a principal
Sec. 4 of Rule 58 gives generous latitude to the trial courts in this action; an ancillary remedy
regard for the reason that conflicting claims in an application for a Seeks a judgment Seeks to preserve the
provisional writ, more often than not, involve a factual embodying a final status quo until the merits
determination which is not the function of appellate courts. injunction. It is final when it can be heard.
Hence, the exercise of the judicial discretion by the trial court in is issued as a judgment
injunctive matters must not be interfered with except when there making the injunction
is manifest abuse. permanent.
Should be assailed by a Not a final resolution or
Grave abuse of discretion in the issuance of the writs of timely appeal decision disposing the case,
preliminary injunction implies capricious and whimsical exercise of but merely interlocutory in
judgment that is equivalent to lack of jurisdiction, or where the nature, hence, the same
power is exercised in an arbitrary or despotic manner may be challenged by a
petition for certiorari under
PURPOSE OF PRELIMINARY INJUNCTION Rule 65
Its sole objective is to preserve the status quo until the merits of Examples of acts subject to the main action for injunction:
the case can be heard fully,
1. Prying into the privacy of another’s residence
STATUS QUO- last, actual, peaceful, and uncontested status that 2. Meddling with or disturbing the private life or family
precedes the actual controversy, that which is existing at the time relations of another
of the filing of the case. 3. Intriguing to cause another to be alienated from his
friends
CASE 9: NAWASA cut off the water service to A’s house for the 4. Vexing or humiliating another on account of his religious
latter’s alleged failure to pay his water bills for 6 months. X beliefs, lowly station in life, place of birth, physical
denies this as evidenced by receipts. NAWASA claims that the defect, or other personal condition
receipts are fake. As counsel for X, what will you suggest?
JUDGMENT IN AN ACTION FOR INJUNCTION IS IMMEDIATELY
A: I will file an action for specific performance and damages EXECUTORY: It is enforceable after its rendition and shall not be
against NAWASA and, to restore service, apply for a writ of stayed by appeal taken therefrom, unless otherwise ordered by
preliminary injunction. the court.
STAGE OF PROCEEDINGS WHEN GRANTED: At any stage of the

action or proceedings to the judgment or final order.

COURT THAT ISSUES A WRIT OF PRELIMINARY INJUNCTION: The
ACTION FOR INJUNCTION V. PETITION FOR DECLARATORY RELIEF court where the principal action is pending. The “court” includes a
Municipal or a Metropolitan Trial Court.
ACTION FOR INJUNCTION PETITION FOR DECLARATORY
RELIEF NOTE: If the main action is for injunction, the MTC cannot grant
An ordinary civil action A special civil action the preliminary injunction because an action for injunction is one
Seeks to enjoin or compel a Seeks a declaration of the incapable of pecuniary estimation.
party to perform certain acts rights, duties, or determination
of any question or validity SEC. 3-4
arising under a statute,
executive order or regulation, GROUNDS FOR THE ISSUANCE OF A WRIT OF PRELIMINARY
ordinance, or any INJUNCTION: See Sec. 3 of Rule 58
governmental regulation, or
under a deed, will, contract or EXISTENCE OF A CLEAR AND UNMISTAKABLE RIGHT: A clear legal
other written instruments, right means one clearly founded in or granted by law, or is
under which his rights are enforceable as a matter of law. The applicant must show that he
affected, and before breach or has an ostensible right to the final relief prayed for in their
violation complaint.
PRELIMINARY PROHIBITORY INJUNCTION V. PETITION FOR 2 REQUISITES FOR THE ISSUANCE:

PROHIBITION
1. The existence of a right to be protected;
PRELIMINARY PROHIBITORY PETITION FOR PROHIBITION 2. The acts which are violative of said right
INJUNCTION
Not an independent action A special and an independent NOTE: Injunction is not designed to protect contingent or future
action rights. There must be an actual righ.
One that is generally against a Not directed against a party
party litigant or against a court, litigant but against a tribunal, Hence, one is not entitled to a writ of preliminary injunction to
agency or person corporation, board, officer, or restrain the execution of a final and executor decision in an
person, exercising judicial, ejectment case. In such case, the petitioner possesses no legal
quasi-judicial, or ministerial right that merits the protection of the courts through a writ of
function preliminary injunction because the petitioner’s right to the
Applies even if there is no issue Applies when acts or possession of the property subject of the case has been declared
of jurisdiction, grave abuse of proceedings of any tribunal, inferior or inconsistent to the rights of the respondents (Salting v.
discretion or other similar acts corporation, board, officer, or Velez)
which amount to lack of person are without or in excess
jurisdiction. The basis is the of jurisdiction, or with grave QUANTUM OF EVIDENCE REQUIRED: Need not be conclusive and
need to protect an existing and abuse of discretion which complete. The plaintiff is only required to show that they have an
clear legal right that faces a amount to lack of jurisdiction. ostensible right to the final relief prayed for in their complaint. It is
threatened violation by a party, generally based on initial or incomplete evidence.
court, agency, or person
NOTE: The holding of a hearing where both parties can introduce
PRELIMINARY PROHIBITORY INJUNCTION V. PETITION FOR evidence and present their side, is also required (China Banking v.
MANDAMUS Sps. Ciriao).
At the hearing, mere prima facie evidence is needed to establish

PRELIMINARY PROHIBITORY PETITION FOR PROHIBITION
the applicant’s rights or interests in the subject matter of the main
INJUNCTION
action.
Not an independent action A special and an independent
action
The issuance of the writ of preliminary injunction based on a
One that is generally against a
verified application for as long as there is notice and hearing is
party litigant or against a court,
allowed.
agency or person
Issued to require a party to Seeks a judgment commanding REQUISITES FOR ISSUANCE OF A WRIT OF PRELIMINARY
perform an act in order to a tribunal, corporation, board,
INJUNCTION OR A TRO
restore the last peaceable, and officer, or person to perform a
uncontested status preceding duty which the law specifically
1. There must be a verified application
the controversy enjoins as a duty either 2. The applicant must establish:
because there was an unlawful
a. The existence of a clear and unmistakable right that
neglect of such duty or a must be protected
person was unlawfully b. Urgent and paramount necessity for the writ to
excluded from the use and prevent serious damage
enjoyment of an office to 3. Bond, unless exempted by the court, in favor of the
which such person is entitled
party enjoined to the effect that the applicant shall pay
to the party enjoined all damages which he may sustain
SEC. 2 by reason of the preliminary injunction or the TRO if the
court finally decide that the applicant was not entitled
to the writ or order

4. As to the writ of preliminary injunction, the court must failure of the TC to fix a period in the TRO does not convert it to a
conduct a hearing. A TRO may be issued ex parte in preliminary injunction.
some cases (Sec. 5 of Rule 58).
This, however, does not impose upon courts blanket prohibition
BOND: To the effect that the applicant will pay to such party or to extend or renew a TRO. The non-extendability rule applies only
person all damages which he may sustain by reason of the when the extension or renewal is based on the very same ground
injunction. upon which the TRO was originally issued.
The party filing a bond shall serve a copy of such bond on the NOTE: It was improper for a judge to order a hearing on the
other party. The latter may take objections, or object to the issuance of a TRO where it was not prayed for in the complaint.
sufficiency of the bond, or of the surety or sureties thereon.
STATUS QUO ORDER- not a TRO:
RULE ON PRIOR OR CONTEMPORARY SERVICE OF SUMMONS; a. It is more in the nature of a cease and desist order,
WHEN NOT REQUIRED: An application for a writ of preliminary b. has no specified duration and
injunction or a TRO may be included in a complaint or any c. does not specifically direct the performance of an act.
initiatory pleading. d. It lasts until revoked
e. Its duration may even be subject to the agreement of
Where summons could not be served upon the defendant either the parties
in person or by substituted service despite diligent efforts, or f. No bond is required for the issuance
when the defendant is temporarily out of the country, or when he
is a non-resident, the requirement of prior or contemporaneous NOTE: In multi-sala courts, it is only the Executive Judge who can
service shall not apply. issue the TRO ex parte
SEC. 5 DURATION OF A TRO:
NOTICE AND HEARING: Subject to the rules governing matters of When issued For a period not exceeding 20 days from
“extreme urgency” or those referring to great or irreparable because of great or service on the party sought to be
injury, the application for a temporary restraining order shall be irreparable injury enjoined
acted upon only after all parties are heard in a summary hearing. If it is a matter of Only for 72 hours from issuance and not
This shall be conducted within 24 hrs. after the sheriff’s return of extreme urgency from the service or notice to the party
service and/or the records are received by the branch selected by and applicant will
raffle and to which the records shall be transmitted immediately suffer grave injustice
and irreparable
injury
TEMPORARY RESTRAINING ORDER By Court of Appeals Effective for 60 days from service on the
or any member party or person sought to be enjoined
PURPOSE: A TRO is issued to preserve the status quo until the thereof
hearing of the application for a writ of preliminary injunction By the Supreme Effective until further orders
because the injunction cannot be issued. Court or any
member thereof
The court, in which the application for preliminary injunction was
made, may issue a TRO ex parte for a period not exceeding 20 SEC. 6
days from service on the party or a person sought to be enjoined.
Within the same period, the court shall determine whether or not Examples of cases justifying the issuance of a writ of preliminary
the preliminary injunction shall be granted and then issue the injunction:
corresponding order.
1. When a petition for certiorari under Rule 65 is filed. The
BOND: Unless it appears that the enjoined party will not suffer filing of the petition does not interrupt the course of the
any damage, the presiding judge must require the applicant to principal case unless a TRO or a writ of preliminary
post a bond, otherwise. injunction is issued against the respondent, tribunal or
officer
72-HOUR TRO: If the matter is of extreme urgency, and the See examples on pp. 109-111
applicant will suffer grave abuse injustice and irreparable injury, 2. Preliminary injunction may be availed of when a petition
the executive judge of a multi-sala court or the presiding judge of for relief under Rule 38 is filed. A petition for relief is
a single sala court may issue ex parte a TRO effective only for 72 filed after a judgment has already become final and
hours from the issuance, not service. executory. Assuming that the prevailing party has not
yet filed a motion for an order of execution, the
Within this period, the judge, before whom the case is pending, pendency of the petition for relief will not prevent a
shall conduct a summary hearing to determine whether or not the motion for the execution of judgment. To stay its
TRO can be extended to 20 days. The 72-hour period shall be execution, the issuance of a writ of preliminary
included in the maximum 20-day period. injunction should be applied for in the court where the
petition is filed.
NOTE: Before the expiration of the 20-day period, the application 3. A writ of preliminary injunction may also be availed of
for preliminary injunction is denied, the TRO would be deemed when an action to annul a judgment is filed under Rule
automatically vacated. 47, to prevent the execution of the judgment.
4. A preliminary injunction may be availed of to restore the
RULE AGAINST THE NON-EXTENDABILITY OF THE 20-DAY plaintiff in his possession in a complaint for forcible
EFFECTIVITY OF A TRO: This is absolute if issued by a RTC. The entry or unlawful detainer

d. When the charges are manifestly false and
PROHIBITION ON INJUNCTIONS UNDER RA 8975 (AN ACT TO motivated by the lust for vengeance
ENSURE THE EXPEDITIOUS IMPLEMENTATION AND COMPLETION e. Where there is clearly no prima facie case against
OF GOVERNMENT INFRASTRUCTURE PROJECTS): See pp. 112-14 the accused and a motion to quash on that ground
has been denied
The law expressly prohibits any court, except the SC, from issuing 16. Extra-judicial foreclosure of mortgage on the allegation
any TRO, preliminary injunction, or preliminary mandatory that the loan has been paid or is not delinquent unless
injunction to restrain, prohibit, or compel the Government or any the application is verified and supported by evidence of
of its subdivisions or officials, or any person or entity, whether payment
public or private, acting under the Government’s direction, from: 17. To enjoin the BSP from examining any institution subject
a. Acquiring, clearing and developing the right-of-way, site to supervision or examination by the BSP
or location of any National Government project 18. Under the Special ADR Rules, the arbitration
b. Bidding or awarding a contract or project of the proceedings shall not be enjoined during the pendency
National Government of the petition for the judicial relief from the ruling of
c. Commencing, prosecuting, executing, implementing, or the arbitral tribunal
operating any such contract or project 19. Under the Anti-Money Laundering Act of 2001 (R.A.
d. Terminating or rescinding any such contract or project 9160), no court, except the SC, shall issue a TRO or a
e. Undertaking or authorizing any other lawful activity writ of injunction against any freeze order issued by the
necessary for such contract or project. AMLC
Examples of other cases where injunction or preliminary Appealable decisions of the Ombudsman are not stayed by
injunction will not be issued: injunction: The decision of the Ombudsman is immediately
executor and may not be stayed by the filing of an appeal or
1. Enforcement of environmental laws or prevent issuance of an injunctive writ.
violations thereof, except the SC
2. Labor disputes except as otherwise provided in Arts. 218 GROUNDS FOR OBJECTION TO, OR FOR MOTION OF
and 264 of the Labor Code DISSOLUTION OF, INJUNCTION OR RESTRAINING ORDER:
3. Concessions, licenses and other permits issued by public
administrative officials or bodies for the exploitation of INSUFFICIENT- If it is not verified and supported by any of the
natural resources grounds for its issuance under Sec. 3 of Rule 58.
4. Presidential Agrarian Reform Council (PARC) or any duly
authorized agencies in any case connected with the It may also be denied, or if granted, may be dissolved, if it appears
application, implementation or enforcement of the after hearing that although the applicant is entitled to the
CARP injunction or restraining order, the issuance or continuance
5. Asset Privatization Trust thereof, as the case may be, would cause irreparable damage to
6. Orders of another court of co-equal rank or decrees of a the party or person enjoined while the applicant can be fully
court with concurrent or coordinate jurisdiction compensated for such damages as he may suffer. In this case, the
7. The RTC may not issue injunction against quasi-judicial person enjoined shall file a bond in an amount fixed by the court
bodies of equal rank such as the SSS and SEC conditioned that he will pay all damages which the applicant may
8. Execution of an award for workmen’s compensation suffer by the denial or the dissolution of the injunction or
9. Under R.A. 8424 or the Tax Reform Act of 1997, restraining order (Sec.6, Rule 58).
injunction is not available to restrain the collection of
taxes EFFECT OF FILING OF A COUNTERBOND: The mere filing of a
XPN: When the collection of taxes would cause counterbond does not necessarily warrant the dissolution of the
irreparable injury writ of preliminary injunction. Under Section 6 of Rule 58 of the
10. Against consummated acts. The established principle is Rules of Court, a preliminary injunction, if granted, may be
that when events sought to be prevented by injunction dissolved "if it appears after hearing that although the plaintiff is
or prohibition have already happened, nothing more entitled to the injunction, the continuance thereof, as the case
could be enjoined or prohibited. may be, would cause great damage to the defendant while the
11. To transfer of possession or control of a property to plaintiff can be fully compensated for such damages as he may
another when the legal title is still in dispute between suffer, and the defendant files a bond in an amount fixed by the
the parties and whose legal title has not been clearly judge conditioned that he will pay all damages which the plaintiff
established may suffer by the ... dissolution of the injunction." Under this
12. For the purpose of establishing new relations between quoted provision of the rules of court, the court is called upon to
the parties exercise its discretion in determining or weighing the relative
13. Where there is lack of a clear or unmistakable right on damages that may be suffered by the parties. If the damages that
the part of the applicant as when the complainant’s may be suffered by the defendant by the continuance of the
right is doubtful or disputed injunction outweigh the damages that may be suffered by the
14. Those which would dispose of the main case without plaintiff by the dissolution of the injunction, then the injunction
trial should be dissolved.
15. To restrain criminal prosecution
XPNs: MODIFICATION OF THE INJUNCTION: If it appears that the extent
a. To afford adequate protection to the constitutional of the preliminary injunction or restraining order granted is too
rights of the accused great.
b. When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of DUTY OF THE COURT THAT ISSUED THE WRIT: They shall decide
actions the main case or petition within 6 months from the issuance of
c. When double jeopardy is clearly apparent the writ

2. A receiver of real or personal property may be
SECS. 8-9 appointed provided that the following requisites are
present:
GRANT OF FINAL INJUNCTION: A final injunction shall be granted a. An actual interest in it; and
by the court with the effect of permanently restraining a party or b. That such property is in danger of being lost,
person enjoined from committing or continuing the acts subject of removed or materially injured or whenever it
the injunction. appears to be the most convenient and feasible
means of preserving or administering the property
in litigation.
RULE 59 3. When the property mortgaged is in danger of being

RECEIVERSHIP dissipated or materially injured and its value is probably
insufficient to discharge the mortgage debt, or that the
SEC. 1-9 parties have so stipulated in the contract of mortgage;
4. To aid the execution of judgment because: (1) the
NATURE OF RECEIVERSHIP: This is directed to the property which execution has been returned unsatisfied, (2) judgment
is the subject of the action or proceeding and not referring to the obligor refuses to apply his property in satisfaction of
receivership under banking laws. the judgment or otherwise to carry the judgment into
effect.
It presupposes that there is an action or proceeding and that the 5. Sec. 4 of Rule 39;
property subject of the action or proceeding requires its 6. Pending appeal but not necessary to preserve the
preservation. property during its pendency;
7. When most convenient and feasible means of
The purpose is to protect and preserve the rights of the parties preserving, administering, or disposing of the property
during the pendency of the main action, during the pendency of under litigation;
an appeal or as an aid in the execution of judgment as when the 8. Art. 101 of the FC—appointment of receivership by the
writ has been returned unsatisfied (Sec.1). aggrieved spouse for judicial separation of property or
for authority to be the sole administrator of absolute
It may be a principal action as the one referred to in Sec. 4 of Rule community.
39.
CASE 10: In a suit for collection of sum of money, plaintiff
MEANING OF RECEIVER: applied for the appointment of receiver to assure the payment
of obligation. Should the court grant it?
1. A person appointed for the purpose of preserving and
conserving the property in litigation and prevents its A: No. Receivership is not available for collection of sum of
possible destruction or dissipation, if it were left in the money.
possession of any of the parties. It is not a matter of
absolute right. COURT THAN CAN GRANT RECEIVERSHIP:
2. It is not an agent or representative of any party to the
action. He is an officer of the court exercising functions a. Court in which the action is pending;
in the interest or common benefit of all the parties in b. By the CA or any member thereof; or
interest. c. By SC or any member thereof.
3. There must be clear showing of necessity therefor in
order to save the plaintiff from grave and irreparable WHEN RECEIVERSHIP MAY BE AVAILED OF: Even after judgment
loss or damage. It is only when there is imminent danger has become final and executory. It may be applied for to aid the
that property sought to be placed in the hands of a execution of the judgment or to carry it into effect (Sec. 1(d)).
receiver be lost or because they run the risk of being
impaired, endeavoring to avoid that the injury thereby REQUISITES FOR THE APPOINTMENT OF RECEIVER; 2 BONDS:
caused be greater than the one sought to be avoided.
1. Verified petition by the applicant;
APPOINTMENT OF PARTY OR CLERK OF COURT AS A RECEIVER: 2. Applicant must have interest in the property or funds
Neither party to the litigation should be appointed as receiver subject of the litigation.
without the consent of the other. 3. He must show that:
A receiver is not a representative of any of the parties but all of a. such property or fund is in danger of being lost,
them to the end that their interests may be equally protected removed, or materially injured or dissipated; or
with the least possible inconvenience and expense. b. there is a need to preserve or administer the
property or that all the grounds justifying the
A receiver who is also burdened with his duties as Clerk of Court appointment of receiver exist.
cannot be in a better position than the actual possessors dealing 4. Notice and hearing because the grounds for a
with the squatters (Abrigo v. Kayanan). receivership require the resolution of factual issues;
5. A bond executed to the party against whom application
CASES THAT JUSTIFY THE APPOINTMENT OF A RECEIVER: is presented; and
6. Receiver must also be sworn to perform his duties
1. The property or fund is in danger of being lost, removed faithfully and shall file a bond (Sec. 4).
or materially injured unless a receiver be appointed to
administer and preserve it;

REPLEVIN
KINDS OF BONDS:
SECS. 1 TO 3
1. Bond required before the appointment of a receiver;
and NATURE: Both a principal remedy and a provisional remedy.
2. Bond required of a receiver before entering his duties.
MAIN ACTION PROVISIONAL REMEDY
Another bond which the court may require, in its discretion, at To regain the possession of Would allow the plaintiff to
any time after the appointment, is an additional bond as further personal chattels capable of retain the thing during
security for such damages that may be sustained by the other manual delivery being pendency of the action and
party by reason of such appointment (Sec. 2). wrongfully detained from the hold it pendente lite
plaintiff by another
DENIAL OF APPLICATION OR DISCHARGE OF RECEIVER: When the
adverse party files a bond executed to the applicant, in an amount It is primarily possessory in nature and generally determines
to be fixed by the court to the effect that such party will pay the nothing more than the right of possession.
applicant all the damages he may suffer by reason of the acts,
omissions or other matters specified in the application as ground It is an ordinary statutory proceeding to adjudicate rights to the
for such appointment. title or possession of personal action.
GENERAL POWERS OF A RECEIVER: When the party applies for the delivery of the property subject of
the action during its pendency, the party is actually availing of the
1. To bring and defend actions in his own name in his provisional remedy of replevin.
capacity as receiver
2. To take and keep possession of the property subject of Also, when the debtor defaults in his obligation and the creditor
the controversy decides to foreclose the chattel mortgage, but the debtor refuses
3. To receive rents to yield possession of the personal property, the creditor may
4. To collects due to himself as receiver or to the fund, obtain a writ of replevin as a preliminary step for the foreclosure
property, estate, person, or corporation of which he is (BA Finance Corp. CA).
the receiver
5. To compound for and compromise the same REPLEVIN v. PRELIMINARY ATTACHMENT
6. To make transfers
7. To pay outstanding debts REPLEVIN PRELIMINARY ATTACMENT
8. To divide the money and property that shall remain Purpose
among the persons legally entitled to receive the same; To recover personal property To place the property under
9. to do such acts respecting the property as the court may capable of manual delivery the custody of the court to
authorize from the adverse party secure the satisfaction of the
judgment that may be
Investment of funds by receiver: A receiver may not invest funds rendered in favor of the
in his custody without an order from the court and without the applicant at some future time
written consent of all the parties to the action The personal property belongs The property does not belong
either to the plaintiff or one to the plaintiff, but tot the
SUITS AGAINST A RECEIVER: No action may be filed against a over which the plaintiff has a defendant
receiver without leave of the court which appointed him right of possession
Can be availed of only when Can be availed of even if the
LIABILITY FOR REFUSAL OR NEGLECT TO DELIEVR PROPERTY TO the defendant is in actual or property is in the hands of 3
rd
RECEIVER: A person who refuses or neglects, upon reasonable constructive possession of the persons
demand, to deliver to the receiver all the property, money, books, personal property
deeds, notes, bills, documents and papers within his power or Extends only to personal Extends to all kinds of property
control, subject of or involved in the action or proceeding, or in
property capable of manual real or personal, or even
case of disagreement, as determined and ordered by the court: delivery incorporeal property
a. may be punished for contempt and
May be availed of even without The applicant needs to show
b. shall be liable to the receiver for the money or the value
showing that the property is that the property is being
of the property and other things so refused or neglected
being concealed or disposed of removed, concealed, or
to be surrendered, together with all damages that may
to the prejudice of the disposed of in certain cases
have been sustained by the party or parties entitled
applicant
thereto as a consequence of such refusal or neglect (Sec.
Property under custodia legis Can be availed of even of the
7, Rule 59).
cannot be the object of property is in custodial egis
replevin
TERMINATION OF RECEIVERSHIP:
Bond is double the value of the Bond is equal to that fixed by
1. The Court, motu proprio
property the court which is the amount
2. On motion of either party
sufficient to satisfy the
Shall determine that the necessity for a receiver no longer exists
applicant’s demand or the
value of the property to be
attached
SPECIAL NOTE on BONDS:

1. Injunction- amount is fixed by the court, unless it
RULE 60 exempts the applicant from posting a bond
2. Receivership- also fixed by the courts incident thereto, the delivery of the sugar to him. May the
remedy of replevin be granted?
WHEN WRIT OF REPLEVIN BE APPLIED FOR:
1. At the commencement of the action A: Yes. The defendant may be deemed to be wrongfully detaining
2. Any time before answer the goods from the plaintiff.
PROCEDURE FOR APPLICATION FOR REPLEVIN: SEC. 3

ORDER OF THE COURT: The court shall issue an order and the
1. File an application corresponding writ of replevin, upon the filing of the affidavit and
2. Affidavit executed by: the approval of the bond. The writ shall (a) describe the personal
a. Applicant property alleged to be wrongfully detained and (b) require the
b. Of some other person who personally knows the sheriff forthwith to take such property into his custody.
facts of the matters required
3. The affidavit shall: SEC. 4-6
a. Particularly describe the property
b. State that the applicant is the owner of the DUTY OF THE PLAINTIFF IN THE IMPLEMENTATION OF THE WRIT:
property or is entitled to the possession thereof
c. State that the property is wrongfully detained by 1. the sheriff must (a) serve a copy thereof on the adverse
the adverse party, alleging the cause of the party, together with a copy of the application, affidavit
detention according to the best of his knowledge, and bond, and (b) must forthwith take the property, if it
information and belief be in the possession of the adverse party, or his agent,
d. State that the property has not been distrained or and retain it in his custody.
taken for a tax assessment or a fine pursuant to
law, seized under a writ of execution or preliminary If the property or any part thereof concealed in a
attachment, or otherwise placed in custodial egis; if building or enclosure, the sheriff must demand its
it is, then the affidavit must state that it is exempt delivery, and if it be not delivered, he must cause the
from such seizure or custody ‘ building or enclosure to be broken open and take the
e. Actual market value of the property property into his possession.
4. Bond, executed to the adverse party in double the value
of the property as stated in the affidavit 2. After the sheriff has take possession of the property as
herein provided, he must keep it in a secure place (Sec.
PROPERTY IN CUSTODIA LEGIS: 4).
GR: Not available, otherwise, there would be interference with 3. If within five (5) days after the taking of the property by
the possession before the function of the law had been performed the sheriff, the adverse party does not object to the
as to the process under which the property was taken sufficiency of the bond, or of the surety or sureties
thereon; or if the adverse party so objects and the court
Custodia legis- The property has been and is subjected to the affirms its approval of the applicant's bond or approves
official custody of a judicial executive officer in pursuance of his a new bond, or if the adverse party requires the return
execution of a legal writ. Only when the property is lawfully taken of the property but his bond is objected to and found
by virtue of legal process is it considered in the custody of the law insufficient and he does not forthwith file an approved
bond, the property shall be delivered to the applicant. If
NOTE: The RTCs are devoid of any competence to pass upon the for any reason the property is not delivered to the
validity or regularity of seizure and forfeiture proceedings applicant, the sheriff must return it to the adverse party
conducted by the Bureau of Customs and to enjoin or otherwise (Sec. 6).
interfere with these proceedings.
REDELIVERY BOND; HOW ADVERSE PARTY MAY SEEK THE
Jurisdiction of the MTC: The remedy may be availed of in the RETURN OF THE PROPERTY: At any time before delivery of the
MTCs provided the value of the property involved is within its property to the applicant, the adverse party may object to the
jurisdiction sufficiency of the bond or the sureties therein. This is done by
filing with the court where the action is pending a bond
UNDERTAKING OF THE REPLEVIN BOND: The bond is for: (redelivery bond) executed to the applicant, in double the value of
a. The return of the property to the adverse party if such the property as stated in the applicant's affidavit for the delivery
return be adjudged thereof to the applicant, if such delivery be adjudged, and for the
b. Payment to the adverse party of such sum as he may payment of such sum, to him as may be recovered against the
recover from the applicant in the action adverse party, and by serving a copy of such bond on the
applicant (Sec. 5).
Where the award of damages was based on Art.19 and 20 of the
CC, recourse on the bond for payment of damages is not proper. If the adverse party did not object to the other party’s bond nor
posted a redelivery bond to recover the possession of the
A replevin bond is simply intended to indemnify the defendant property taken, sheriff is under obligation to deliver the property
from any loss that he may suffer by being compelled to surrender to the applicant.
possession of the disputed property pending trial of the action.
For the adverse party to effect the return of the property, the
CASE 11: A delivered 5 thousand piculs of sugar. Upon delivery of following must be met:
the sugar to B, the latter did not pay the purchase price. A
brought an action for rescission of the contract of sale and as an 1. Post a redelivery bond in the amount double the value
of the property;

2. Bond is executed to the applicant; provision identifies the source of support and also impliedly
3. Should serve a copy of the bond to the applicant; authorizes support pendente lite. See also Art. 203.
4. Must perform these acts before delivery of the property
to the applicant and A.M. 02-11-12-SC
5. Bond must be sufficient.
The provisional order shall include spousal and child support (Sec.
2 and 3).
EFFECT OF THE DISMISSAL OF THE COMPLAINT: Upon the
dismissal of the replevin case, the writ of seizure should also be WHO MAY ASK FOR SUPPORT PENDENTE LITE: Any party, not
lifted. The dismissal of the replevin case results in the restoration only the plaintiff as long as there are legal grounds to support the
of the parties’ status prior to the litigation, as if no complaint was application.
filed at all. Besides, replevin is merely ancillary in nature (Advent
Capital Corporation v. Young, 2011). WHEN TO APPLY FOR SUPPORT PENDENTE LITE: At the
commencement of the proper action or proceeding or at any
SEC. 7 stage prior to the judgment or final order.
WHEN PROPERTY IS CLAIMED BY A THIRD PARTY: If the property PROCEDURE:

taken is claimed by any person other than the party against whom
the writ of replevin had been issued or his agent, and such person 1. Verified application shall be filed. It shall state the
makes an affidavit of his title thereto, or right to the possession grounds for the claim and the financial conditions of
thereof, stating the grounds therefor, and serves such affidavit both parties;
upon the sheriff while the latter has possession of the property It must be accompanied by affidavits, depositions, or
and a copy thereof upon the applicant. other authentic documents in support thereof;
2. Adverse party shall ask to comment on the application
The sheriff shall not be bound to keep the property under replevin within 5 days from service upon him of a copy of the
or deliver it to the applicant unless the applicant or his agent, on application and the supporting documents;
demand of said sheriff, shall file a bond approved by the court to 3. The application shall be set for hearing not more than 3
indemnify the third-party claimant in a sum not less than the days thereafter. The facts in issue shall be proved in the
value of the property under replevin as provided in section 2 same manner as is provided for evidence on motions
hereof. In case of disagreement as to such value, the court shall (Sec. 3);
determine the same. No claim for damages for the taking or 4. If the application is granted, the court shall fix the
keeping, of the property may be enforced against the bond unless amount of money to be provisionally paid or such other
the action therefor is filed within one hundred twenty (120) days forms of support as should be provided, taking into
from the date of the filing of the bond. account the necessities of the applicant and the
resources or means of the adverse party, and the terms
The sheriff shall not be liable for damages, for the taking or of payment or mode for providing the support.
keeping of such property, to any such third-party claimant if such NOTE: The law recognizes that giving of money is not
bond shall be filed. the only mode of support.
5. If the application is denied, the principal case shall be
The third-party claimant however is not precluded from tried and decided as early as possible.
vindicating his claim to the property. He may even maintain a
separate action and seek injunctive relief against the sheriff. The amount fixed by the court is only provisional. It is not final in
character and can be modified depending on the changing final
Also, the applicant is not prevented from claiming damages conditions affecting the ability of the obligor to pay the amount
against a third-party claimant who filed a frivolous or plainly fixed for support.
spurious claim, in the same or a separate action.
SEC. 6
SEC. 8-10
SUPPORT PENDENTE LITE IN CRIMINAL CASES: The remedy may
JUDGMENT: This has the nature of an alternative—to deliver the be availed of where the civil liability includes support for the
property to the party entitled to the same or to pay its value in offspring born to the offended party as a consequence of the
case delivery cannot be made. If the property is no longer in the crime provided that the civil aspect has not been waived, reserved
condition in which it should be, the party entitled to its delivery or instituted prior to its filing.
may refuse to accept the property.
The application therefor may be filed successively by the offended
party, her parents, grandparents or guardian and the State in the
corresponding criminal case during its pendency, in accordance
RULE 61 with the procedure established under this Rule.
SUPPORT PENDENTE LITE
ADULTERY AS A DEFENSE: The allegation that the wife has
SEC. 1-4 committed adultery will not bar her from the right to receive
support pendent lite (Reyes v. Ines-Luciano).
NATURE OF SUPPORT PENDENTE LITE: This is the amount of
support provisionally fixed by the court in favor of the person SEC. 5 and 7
entitled thereto during the pendency of the action for support.
ENFORCEMENT OF THE ORDER:
Basis: ART. 198 of the FC (in case of proceedings for declaration of
nullity of marriage, annulment and legal separation)—this

1. If the adverse party fails to comply with an order
granting support pendente lite, the court shall, motu a. Sec. 39-a seizure and sequestration of assets of certain
proprio or upon motion; issue an order of execution persons or entities suspected of terrorism;
against him, without prejudice to his liability for b. Sec.26-right to travel of person charged may be
contempt. subjected to restrictions even before judgment under
2. Even if the order for support is merely interlocutory and certain conditions;
not a final order, the order is still subject to the issuance c. Sec.27 in relation to Sec. 28-bank deposits, accounts and
of an order of execution; records, may be examined under certain conditions, the
3. Even a third person may obtain a writ of execution provisions of the Secrecy of Bank Deposits to the
against the person ordered to give support, provided: contrary notwithstanding;
(a) there is due notice and hearing in the same case; and REQ:
(b) such third person furnished support to the applicant 1. Upon an ex parte application to that effect of
because of the refusal or failure to do so by the person a police or of law enforcement official who has
ordered to give support (Sec. 5). been duly authorized in writing to file such ex
parte application by the AMLC; and
RESTITUTION: When the judgment or final order of the court finds 2. Upon examination under oath or affirmation
that the person who has been providing support pendente lite is of the applicant and the witnesses he may
not liable therefor, it shall order the recipient thereof to return to produce to establish the facts that will justify
the former the amounts already paid with legal interest from the the need and urgency of examining and
dates of actual payment, without prejudice to the right of the freeing the bank deposits, placements, trust
recipient to obtain reimbursement in a separate action from the accounts, assets and records involved.
person legally obliged to give the support. Should the recipient fail
to reimburse said amounts, the person who provided the same D. Anti-violence against Women and their Children or RA. 9262
may likewise seek reimbursement thereof in a separate action
from the person legally obliged to give such support. a. Sec. 5 defines the acts constituting the crime of violence
against women and their children;
MISCELLANEOUS PROVISIONAL REMEDIES b. Sec. 22- Protection Order which shall be available even
in cases impliedly instituted with criminal actions
A. Writ of Amparo involving VAWC;
c. Sec. 8- Protection Order: an order issued for the
a. Petitioner purpose of preventing further acts of violence against a
woman or child specified in the law and granting other
Upon the filing of petition or at any time before final necessary relief. They shall be enforced by the law
judgment, court, judge or justice may grant certain enforcement agencies:
interim reliefs immediately after the filing of the petition
motu proprio or at any time before final judgment. i. BPO (Sec. 14)
ii. TPO (Sec. 15)
1. TPO (Sec. 14 (a)); iii. PPO (Sec. 16)
2. Witness Protection Order (WPO) (Sec. 14 (d)); d. Sec. 9 provides that a petition may be filed by any of the
3. Inspection order (IO) (Sec. 14 (b)); and following:
4. Production Order (PO (Sec. 14 (c)).
i. Offended party;
b. Respondent: He may avail of the appropriate relies ii. Parents or guardians of the offended party;;
upon (a) a verified motion; and after due hearing, the iii. Ascendants, descendants or collateral relatives
th
court may issue: within the 4 civil degree;
iv. Officers or social workers of DSWD or special
1. IO; and worker of LGUs;
2. PO. v. Police officers, preferably those in charge of
the women’s and children’s desks;
B. R.A 8369 or An Act Establishing Family Courts, granting vi. Punong barangay or barangay kagawad;
them exclusive original jurisdiction over a child and family vii. Lawyer, counselor, therapist, or healthcare
cases: provider of the petitioner;
viii. At least 2 concerned responsible citizens of
The following are the special provisional remedies: the city of municipality where the violence
against women and their children occurred
a. Restraining Order against the accused or defendant if and who has personal knowledge of the
the complainant or victim files a verified application for offense committed.
relief from abuse (Sec.7);
b. Temporary custody of the children in civil actions for E. Anti-Money Laundering Act
custody of children;
c. Civil actions for support: a. Freezing of monetary instrument or property- the freeze
order shall be for a period of 20 days unless extended by
i. Support pendent lite; the court (Sec. 10);
ii. Deduction from the salary; and b. Authority to inquire into bank deposits (Sec. 11).
iii. Use of the conjugal home and other properties
(Sec. 7). F. AM 02-11-12: Proposed Rules on Provisional Orders
C. Human Security Act or RA. 9372 a. Spousal support;

b. Child support to the common children of the spouses;
c. Child custody;
d. Visitation rights;
e. Hold departure order in which pending resolution of the
petition, no child of the parties shall be brought out of
the country without prior order from the court; and
f. Order of protection; and
g. Administration of common property (Secs. 2-8, AM 02-
11-12-SC 2003-03-15)
G. Corporate Rehabilitation (AM No. 00-8-00-10-SC)
Sec. 7 of the rules provides that if the court finds the petition to
be sufficient in form and in substance, it shall, not later than 5
working days from filing of the petition, issue an order which,
among others, shall direct the staying of the enforcement of all
claims, whether for money or otherwise, against the debtor, its
guarantors and persons not solidarily liable with the debtor.
H. Environmental Cases (AM 09-6-8-SC)
a. Attachment in civil cases;

b. Sec. 8- Environmental Protection Order, TEPO;
c. Sec. 10—prohibition against TPO and PI directed against
governmental agencies that enforce environmental laws
or pertinent violations thereof.
I. R.A. 9285 or an Act to institutionalize the use of ADR

system:
Sec. 28: Any party may request that provisional relief be granted
against the adverse party:
i. To prevent irreparable loss or injury;

ii. Provide security for the performance of any obligation;
iii. Produce or preserve any evidence; or
iv. Compel any other appropriate act or omission.
J. Special rules of court on ADR (AM No. 07-11-08):
A petition for interim measure of protection may be made:
a. Before arbitration is commenced;

b. After arbitration is commenced but before the
constitution of the arbitral tribunal or
c. After the constitution of the arbitral tribunal and at any
time during arbitral proceedings but, at this stage, only
to the extent that the arbitral tribunal has no power to
act or is unable to act effectively.
The following are the interim measures of protection that the

court may grant:
a. Preliminary injunction directed against a party to

arbitration;
b. Preliminary attachment against the property or
garnishment of funds in the custody of a bank or third
person;
c. Appointment of receiver;
d. Detention, preservation, delivery or inspection of
property; or
e. Assistance in the enforcement of an interim measure of
protection granted by the arbitral tribunal, which the
latter cannot enforce effectively.

PART II HOW SPECIAL CIVIL ACTIONS ARE INITIATED OR COMMENCED:

SPECIAL CIVIL ACTIONS
a. By a petition; and
Preliminaries
1. Declaratory relief and other similar remedies;
NATURE OF CIVIL ACTION; PURPOSES 2. Review of adjudications of the COMELEC and COA;
3. Certiorari, prohibition and mandamus;
Civil action has the following rights: 4. Quo warranto; and
5. Contempt
1. Enforcement or protection of a right; or
2. Prevention or redress of wrong. b. By a complaint
KINDS OF CIVIL ACTIONS: 1. Interpleader

2. Expropriation
1. Ordinary civil action; and 3. Foreclosure of real estate mortgage
2. Special civil action 4. Partition
5. Forcible entry; and
ORDINARY AND SPECIAL CIVIL ACTIONS: 6. Unlawful detainer
Both are governed by the rules for ordinary civil actions, subject to COURT WITH JURISDICTION OVER SPECIAL CIVIL ACTIONS:
specific rules prescribed for special civil actions. The fact that an
action is subject to certain special rules, other than those a. SCA may be filed with the MTC (first level courts) as in
applicable to ordinary civil actions, is what makes civil action cases of forcible entry and unlawful detainer;
special. b. SCA which are real actions may be filed not only in the
RTC but also in the MTC depending on the assessed
EXAMPLES OF RULES NOT COMMON TO BOTH CIVIL ACTIONS: value of the property involved like in quieting of title or
removal of cloud of a title to real property;
1. Concept of cause of action requiring violation of c. Rule 65 may be filed in RTC if the petition relates to the
someone’s right does not appear relevant to the special act or omission of a MTC, corporation, board, officer or
civil action of declaratory relief; person. The petitions may also be filed with the CA or
2. Cause of action does not also apply in interpleader— the Sandiganbayan whether or not the same is in aid of
where the plaintiff may file the complaint even if he has the court’s appellate jurisdiction;
sustained no actual transgression of his rights; If the petition involves a quasi-judicial agency—CA;
3. The dichotomy in venue (personal and real actions) does If the petition involves the MTC or the RTC—COMELEC
not always apply to a special civil action; exclusively in aid of its appellate jurisdiction;
Ex: Quo warranto proceeding is commenced in the SC or d. Interpleader may be commenced in the RTC or MTC
CA. The venue is fixed by the rules without special depending on the subject matter or amount of the
regard to the residence of the parties. claim;
XPN: When the petition is lodge in the RTC, the e. Petition for declaratory relief is to be filed with RTC but
residence of the respondent/s and not that of the similar remedy like quieting of title may be filed in the
Plaintiff is considered. MTC depending on the assessed value of the property;
4. There are SCA which can only be filed in the MTC like f. Review of the adjudications of COMELEC and COA may
forcible entry and unlawful detainer case. In contrast, be brought only to the SC under Rule 65;
there are SCA which cannot be commenced in the MTC g. Under Rule 71, the charge for indirect contempt
like the petitions for certiorari, prohibition and committed against the RTC or court of higher rank may
mandamus; be filed with such court. Where such contempt was
5. In ordinary civil actions, the court shall issue the committed against the lower court, the charge may be
corresponding summons to the defendants. This does filed with the RTC of the place which the lower court is
not usually apply in SCA. sitting or may be instituted in such lower court.
Ex: Rule 65—court shall issue an order (not summons)
under Sec. 6;
Rule 64—commnet shall be made within 10 days from
notice under Sec. 6.
6. SCA have to be verified like a complaint for
expropriation, petitions for certiorari and mandamus,
action for usurpation of public office, position or
franchise, a review of judgments of COMELEC and COA,
actions for forcible entry and unlawful detainer,
proceedings for indirect contempt other than those
initiated by the court against which the contempt was
committed;
7. Rule on default may apply to SCA like in interpleader but
failure to answer the complaint in forcible entry and
unlawful detainer does not lead to a declaration of
default. Instead, the court motu propio or on motion of
the plaintiff, shall render judgment as may be warranted
by the facts in the complaint.

CASE 12: A case of a lessee who may commence a complaint for
RULE 62 interpleader who is confronted with adverse claimants on the
INTERPLEADER rentals due and he is in doubt as to who of them should be the
rightful recipient.
SEC.1
To protect himself from liability for making an erroneous
Meaning of interpleader; purpose: Whenever conflicting claims payment, where there are 2 or more persons who do not
upon the same subject matter are or may be made against a represent the same interests claim the right to collect, the debtor
person who claims no interest whatever in the subject matter, or will have to file an action for interpleader to ultimately effect the
an interest which in whole or in part is not disputed by the extinguishment of his obligation after payment is made to the
claimants, he may bring an action against the conflicting claimants person who is entitled thereto.
to compel them to interplead and litigate their several claims
among themselves (Sec. 1). An insurer may also file a complaint for interpleader when
confronted by conflicting claims on the proceeds of the insurance
REQUISITES FOR AN INTERPLEADER: policy.
1. There must be 2 or more claimants with adverse or CASE 13: A lost the casheir’s check she purchased from XYZ Bank.
conflicting interests upon a subject matter; The bank immediately issued a “STOP PAYMENT” order. Here
2. Conflicting claims involve the same subject matter; comes B trying to encash the check but the bank refused
3. Conflicting claims are made against the same person payment.
(plaintiff); and
4. The plaintiff claims no interest whatever in the subject XYZ bank should file a complaint for interpleader and leave unto
matter, or an interest which in whole or in part is not the court the resolution of the conflicting claims of A and B.
disputed by the claimants,
COURT WITH JURISDICTION:
Mere existence of conflicting claims between or among several
persons is not sufficient to sustain an interpleader action where 1. If the subject matter of the action is personal property,
such claims do not refer to the same subject matter. Where the valued at not more than 300k, the MTC has jurisdiction
subject matters are different, the claims are to be deemed where the case is filed outside MM. Where the case is
separate and distinct, and an interpleader will not apply. filed in MM, the MeTC has jurisdiction if the personal
property is valued at not more than P400,000.00.
WHEN INTERPLEADER IS PROPER; WHEN FILED: 2. If the subject matter is real property with an assessed
value of not more than P20,000.00, the MTC has
1. A person has property in his custody over which he jurisdiction where the case is filed outside MM. Where
himself asserts no interest but several persons claim a the case is filed in MM, the MeTC has jurisdiction if the
right to the property; assessed value of real property does not exceed
2. When one, who has an obligation to perform an act, is P50,000.00.
confronted with conflicting claims asserting right to be 3. If the subject matter is one incapable of pecuniary
entitled to the benefits of the performance of the estimation like where the interpleader has for its subject
obligation; matter the performance of an obligation, the RTC has
3. When 2 or more persons claim a right to collect from a jurisdiction.
debtor who admits his liability but is uncertain as to who
among several claimants is entitled to payment; HOW COMMENCED: An interpleader is commenced by the filing
4. It is also proper when the lessee does not know the of a complaint. The action is brought by the person against whom
person who is entitled to the payment of the rentals due conflicting claims upon the same subject matter are made.
because of conflicting claims on the property. An
interpleader allows a person to pass the legal problem INTERPLEADER v. INTERVENTION
over to the court which will have to eventually
adjudicate upon the adverse claims, enabling the P to INTERPLEADER INTERVENTION
protect himself from possible lawsuits initiated by any of A special civil action, Not an original action but
the claimants. independent and original merely ancillary and depends
upon the existence of a
CASE 11: A claim against a warehouseman who has custody of previous pending action
the goods claimed to be owned by 2 or more persons who do not Commenced by filing of a Commenced by motion for
have the same interests. complaint, it being an original leave to intervene filed in a
action pending case attaching thereto
He may file an interpleader. The basis will be the Warehouse the pleading-in-intervention
Receipts Law wherein the warehouseman delivers the goods ton Filed by a person who has no Filed by a person who has a
one who is not in fact entitled to possession, warehouseman shall interest in the subject matter legal interest in any of the
be liable for conversion (Sec. 6). of the action or if he has an following:
interest, the same is not 1. The subject matter of the
NOTE: The warehouseman has actually an interest in the goods disputed by the claimants. litigation
deposited to the extent of his lien on the goods deposited or on 2. The success of either of
the proceeds thereof in his hands in accordance with Sec. 27. But the parties
this does not preclude him from filing a complaint in interpleader 3. An interest against both
because such is not disputed by the claimants. 4. He may be adversely
affected by the disposition
or distribution of property

in the custody of the court requires a prior motion to that effect. A declaration of default is
or of an officer thereof not mandatory on the part of the court.
The defendants are brought The defendants are already
into the action because they parties to an existing suit not The complaint in interpleader is filed to compel the claimants to
are sued and impleaded as because of the intervention, litigate their claims among themselves. Hence, each claimant is
such in the complaint but because of the original suit. required under Sec. 5 to serve a copy of his answer upon the
conflicting claimants.
PAYMENT OF DOCKET FEES; LIEN: The person who files the
complaint pays the docket and other lawful fees. These fees, as REPLY: Each of the claimants served with answer MAY file his
well as the costs and litigation expenses, shall constitute a lien or reply to the same. The rule does not consider the filing of a reply
charge upon the subject matter of the action, unless the court mandatory. All the new matters alleged in the answer are deemed
shall order otherwise (Sec. 7, Rule 62). controverted or denied.
SECS. 2&3 OTHER PLEADINGS:

a. Counter-claim
SUMMONS; ORDER TO INTERPLEAD: The order shall be served b. Cross-claim
together with the summons and a copy of the complaint refers to c. Third-party complaints
the order requiring the conflicting claimants to interplead with d. Responsive pleadings thereto
one another.
SEC. 6
The court may also include in the order a direction that the
subject matter of the action be paid or delivered to the court PRE-TRIAL: Rule 18 also applies.
(Sec.2, Rule 62).
ADJUDICATION: The court shall determine the respective rights of
SEC. 4 the claimants and shall adjudicate the several claims:
1. After the pleadings of the conflicting claimants have
MOTION TO DISMISS: Within the time for the filing of an answer, been filed
each claimant may file a motion to dismiss on the ground of: 2. The pre-trial has been conducted
1. Impropriety of the interpleader action

2. On other appropriate grounds
RULE 64
The grounds under Rule 16, Sec. 1 are also applicable. DECLARATORY RELIEF AND SIMILAR REMEDIES
IMPROPRIETY OF THE INTERPLEADER ACTION: SECS. 1 to 6
NOTE: Where the allegations in the complaint do not show DECLARATORY RELIEF- An action by any person interested in a
conflicting claims between or among the persons required to deed, will, contract, or other written instrument, executive order
interplead, the complaint is subject to dismissal on the ground of or resolution, to determine any question of construction or
impropriety of the interpleader. validity arising from the instrument, executive order or resolution,
or statute; and for a declaration of rights and duties thereunder
Where the claims are not conflicting because they refer to
different subject matters, an interpleader will not also lie and a The only issue that may be raised in such a petition is the question
dismissal based on impropriety of the action may be invoked. of construction or validity of provisions in an instrument or
statute.
EFFECT OF THE FILING OF A MOTION TO DISMISS ON THE PERIOD
TO ANSWER: The period to file an answer is interrupted or tolled PURPOSE:
by the filing of a motion to dismiss.
1. To determine any question of construction or validity
If the motion is DENIED, the movant may file his answer within arising from the subject of the action
the remaining period to answer, but which shall not be less than 5 2. Seek for a declaration of the petitioner’s rights
days in any event. This shall be counted from the notice of the
denial of the motion. It is not brought to settle issues arising from a breach because
after a breach of the contract or statute, the petition can no
SEC. 5 longer be brought.
ANSWER: Each claimant shall file his answer setting forth his claim TWO TYPES OF ACTIONS UNDER RULE 63:
within 15 days from the service of summons. The rule also
st
provides that the answer shall set forth the claim of the answering a. The 1 paragraph refers to an action for declaratory
claimant. relief
nd
b. The 2 paragraph deals with “similar remedies,” to wit:
DEFAULT: If any claimant fails to plead within the time herein 1. Action for reformation of an instrument
fixed, the court may, on motion, declare him in default and 2. Action for quieting of title to real property or
thereafter render judgment barring him from any claim in respect remove clouds therefrom
to the subject matter. 3. Action for consolidation of ownership
The court, under this provision, is NOT authorized to declare a WHEN COURT MAY REFUSE A JUDICIAL DECLARATION:
claimant in default motu proprio. Any declaration of default

a. In declaratory relief, the court, motu proprio or upon governmental regulation, the petition is commenced by
motion, may refuse to exercise the power to declare “one whose rights are affected” by the same.
rights and to construe the instruments in any case
where the decision would not terminate the uncertainty “OTHER PARTIES”- refers to all persons who have or clam any
or controversy which give rise to the action, or in any interest which would be affected by the declaration.
case where the declaration or construction is not
necessary and proper under the circumstances NOTE: The rights of persons not mad parties to the action do not
b. The court does not have the discretion to refuse to act stand to be prejudiced by the declaration (Sec. 2, Rule 63).
with respect to actions described as “similar remedies”.
VALIDITY OF LOCAL GOVERNMENT ORDINANCE: The
REQUISITES FOR DECLARATORY RELIEF: corresponding prosecutor or attorney of the LGU involves shall be
1. The subject matter of the controversy must be a deed, similarly notified and entitled to be heard. If such ordinance is
will, contract, or other written instrument, statute, alleged to be unconstitutional, the Solicitor General shall also be
executive order or resolution, or ordinance notified and entitled to be heard (Sec. 4)
2. The terms of said documents and the validity thereof
are doubtful and require judicial construction VALIDITY OF A STATUTE, EXEC. ORDER OR REGULATION, OR ANY
3. There must have been no breach of the documents in OTHER GOVERNMENTAL REGULATION- The Solicitor General shall
question; be notified by the party assailing the same and shall be entitled to
4. There must be an actual justiciable controversy or the be heard upon such question.
ripening seeds of one between persons whose interests
are adverse COURT WITH JURISDICTION:
5. The issue must be ripe for judicial determination
6. Adequate relief is not available through other means or 1. The action for declaratory relief shall be brought in the
other forms of action or proceeding appropriate RTC
2. The SC does not possess original jurisdiction over
SUBJECT MATTER OF PETITION FOR DECLARATORY RELIEF petitions for declaratory relief even if only questions of
(Exclusive): law are involved. The SC merely exercises appellate
jurisdiction over such petitions (Tano v. Socrates)
1. deed, 3. Quieting of Title- the jurisdiction will depent upon the
2. will, assessed value of the real property
3. contract, or 4. Reconveyance of title to real property or cancellation
4. other written instrument, of title- they are real actions jurisdiction over which is
5. statute determined by the assessed value of the property
6. executive order or regulation 5. Action for reformation of instrument- should be treated
7. ordinance as an action incapable of pecuniary estimation, the issue
8. any other governmental regulation therein being one other that for the recovery of money.
The action shall be instituted in the RTC.
WHEN PETITION FOR DECLARAT0RY RELIEF IS NOT PROPER: 6. Action for consolidation of ownership- RTC; the
assessed value in this case should not be considered in
1. To ask the court to declare his filiation, and the determination of jurisdiction because the action
consequently his hereditary rights does not involve recovery of title to, or ownership of,
2. To seek judicial declaration of citizenship to correct a real property. The action is instituted merely to obtain a
previous unilateral registration by petitioner as an alien judicial order to the effect the registration of the
3. To seek enlightenment as to the true import of the consolidated ownership in the Registry of Property.
judgment. The remedy is to move for clarificatory
judgment PETITION FOR DECLARATORY RELIEF TREATED AS A PETITION
4. To assail a judgment FOR PROHIBITION OR A PETITION FOR MANDAMUS: Gamboa v.
5. Where the contract or statute is clear in its terms and Finance Sec. Teves: The Court has no original and exclusive
there is no doubt as to its meaning and validity jurisdiction over a petition for declaratory relief. However,
exceptions to this rule have been recognized. Thus, where the
CASE 14: A student files an action for declaratory relief against petition has far-reaching implications and raises questions that
his school to determine whether he deserves to graduate with should be resolved, it may be treated as one for mandamus.
Latin honors.
THIRD-PARTY IS INCAPABLE: The relief sought in third-party
A: The action is not tenable. Latin honors is not a proper subject of complaint is contribution, indemnity, subrogation or other relief
the petition. from the third party defendant in respect of the claim of the
plaintiff against him. This relief cannot be granted because in a
ISSUE AND RELIEF: The question of construction or validity of the declaratory relief, the court is merely interpreting the terms of the
provisions in an instrument or statute. contract (Commissioner of Customs v. Cloribel).
WHO MAY FILE THE PETITION: APPLICABILITY OF A COMPULSORY COUNTERCLAIM: A petition

for declaratory relief may entertain a compulsory counterclaim as
a. If the subject matter is a deed, will, contract, or other long as it is based on or arising from the same transaction, subject
written instrument, the petition is commenced by “any matter of the petition. There is nothing in the nature if the special
person interested therein”. It includes the parties, their civil action that proscribes the filing of a counterclaim (PDIC v. CA).
assignees, and heirs.
b. If the subject of the petition is a statute, executive GRANTING AFFIRMATIVE RELIEF:
order or regulation, ordinance or any other

GR: Affirmative Reliefs as in ordinary civil actions are not granted
in declaratory petitions. REFORMATION OF AN INSTRUMENT- not one brought to reform a
contract but to reform the instrument evidencing the contract.
XPN: If the allegations in the complaints are sufficient to make out
a case for specific performance or recovery of property with The instrument is to be reformed because despite the meeting of
claims for damages, and the defendants did not raise a issue in the minds of the parties as to object and cause of the contract, the
trial court to challenge the remedy or form of the action availed of instrument which is supposed to embody the agreement of the
(Adlawan v. IAC). parties does not reflect their true agreement by reason of
mistake, fraud, inequitable conduct or accident. The action is
NO EXECUTORY PROCESS AS IN ORDINARY CIVIL ACTIONS: Ratio: brought so the true intention of the parties may be expressed in
The judgment in the declaratory relief is confined either to an the instrument (Art. 1359, NCC).
interpretation of a deed or declaration whether or not the
petitioner has rights under the law. NOTE: The contract does not refer to the instrument, deed or
document but to the meeting of minds.
XPN under Jurisprudence: DBM v. Manila’s Finest Retirees
Association, Inc.: The execution of judgments in a petition for Examples:
declaratory relief is not necessarily indefensible since a special
civil action is not essentially different from an ordinary civil action. 1. Defect not in the meeting of minds but on the deed of
The same rules governing ordinary civil suits may and do apply to sale which is the instrument (Art. 1305);
special civil actions if not inconsistent with or if they may serve to 2. When mutual mistake of the parties causes failure of the
supplement the provisions of the peculiar rules governing special instrument to disclose their real agreement (Art. 1361);
civil actions. 3. Instrument which does not reflect the true intention of
the parties because of lack of skill of the person drafting
FILING BEFORE ANY BREACH OR VIOLATION: The action will not the instrument (Art. 1364);
prosper when brought after a contract or a statute has already 4. Instrument states that the property is absolutely sold
been breached or violated. If there has already been a breach, the instead of mortgaged pledged (Art. 1365).
appropriate ordinary civil action, not declaratory relief, should be
filed. In other words, inasmuch as a cause of action has already Reformation of instrument cannot be brought for:
accrued in favor of one or the other party, there is nothing more
for the court to explain or clarify short of a judgment or final 1. Simple donations inter vivos wherein no condition is
order. imposed
2. Will
Breach occurs not before the filing of the petition but after the 3. When the real agreement is void (Art. 1366).
action has been instituted and before its final termination: The
action need not be dismissed because it may be converted into an CONSOLIDATION OF OWNERSHIP (Art. 1607):
ordinary action (Sec. 6).
A concept may be extinguished by either legal redemption (Art.
JUSTICIABLE CONTROVERSY: The traditional concept of action 1619) or conventional redemption (Art. 1601).
does not apply to a declaratory relief petition where no specific
right of the plaintiff has yet been violated because the action is Legal redemption (retracto legal)- is a statutory mandated
brought before a breach of the deed or law occurs. redemption of a property previously sold.
The absence of breach should not however be taken to mean that Ex: A co-owner may exercise the right of redemption in case the
the petition need not involve a justiciable controversy. shares of all the other co-owners or any of them are sold to a third
person (Art. 1620 and 1621).
JUSTICIABLE CONTROVERSY- a definite and concrete dispute
touching on the legal relations of parties adverse having legal Conventional redemption (pacto de retro)- one which is not
interests, which may be resolved by a court of law through the mandated by the law but which takes place by stipulation of the
application of a law. parties. It shall take place when the vendor reserves the right to
repurchase the thing sold (Art. 1601). The period cannot exceed
STANDING- A person who impugns the validity of a statute must 10 years from the date of the contract. In the absence of an
have a personal and substantial interest in the case such that he express agreement, the redemption period shall be 4 years from
has sustained, or will sustain, direct injury as a result of its the date of contract (Art. 1606).
enforcement. To sum up, standing is whether a party alleges such
a personal stake in the outcome of the controversy as to assure Art. 1607 provides that the consolidation of ownership in the
that concrete adverseness which sharpens the presentation of vendee shall not be recorded in the Registry of Property without a
issues upon which the court so largely depends for illumination of judicial order, after the vendor has been duly heard. This is in case
difficult questions. the redemption of a real property is not made within the period
agreed upon.
TAXPAYERS SUIT- taxpayers have been allowed to sue where
there is a claim that public funds are illegally disbursed or that The action is not for the purpose of consolidating the ownership
public money is being deflected to any improper purpose, or that of the property in the person of the vendee or the buyer but for
public funds are wasted through the enforcement of an invalid or the registration of the property. Art. 1607 requires the filing of the
unconstitutional law. petition to consolidate ownership because the law precludes the
registration of the consolidated title without a judicial order.
Cruz v. Leis
SIMILAR REMEDIES

Art. 1607 is not a condition sine qua non to the transfer of
ownership. The essence of a pacto de retro sale is that title and RULE 64
ownership of the property sold are immediately vested in the REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS
vendee a retro, subject to the resolutory condition of repurchase OF THE COMMISSION ON ELECTIONS AND THE COMMISSION ON
by the vendor a retro within the stipulated period. Failure of the AUDIT
vendor to perform said resolutory condition vests upon the
vendee by operation of law absolute title and ownership over the PRELIMINARIES:
property sold. Art. 1607 is merely for the purpose of registering
the consolidated title. Basis: Sec. 7 of Art. IX-A
QUIETING OF TITLE; QUASI IN REM ACTION: This action is brought REMEDY OF THE AGGRIEVED PARTY; APPLICATION OF RULE 65: A
to remove a cloud on title to real property or any interest therein. party aggrieved by the adjudication of COMELEC or COA may file a
The cloud is cause (1) by any instrument, record, claim, petition for certiorari under Rule 65 with the SC. Hence, this
encumbrance or proceeding (2) which appears to be valid or means that these adjudications are not reviewable by appeal as
effective. However, (3) in truth and in fact the same is invalid, Rule 65 is available only when there is no appeal, nor any other
ineffective, voidable or unenforceable and (4) may be prejudicial plain, speedy or adequate remedy in the course of law.
to the title to real property.
RAISING JURISDICTIONAL GROUNDS: The petitioner must anchor
It may also be brought as a preventive remedy to prevent cloud his petition on jurisdictional grounds—that the commission acted
from being cast upon title to real property or any interest therein without or in excess of jurisdiction or with grave abuse of
(Art. 476). discretion amounting to lack or excess of jurisdiction. Hence,
questions of facts and of law or mixed questions of facts and law
The action can also be brought when the contract, instrument or are not to be raised in the petition since such questions
other obligation has been extinguished or terminated, or barred amounting to mere errors of judgments and thus are proper
by extinctive prescription (Art. 478). subjects of appeal.
Plaintiff need not be in possession of the real property before he RULE 64 DOES NOT APPLY TO COA: Rule 43 establishes a mode of
may bring the action as long as he can show that he has a legal or appeal from judgments or final orders of the CSC. Under Rule 43,
equitable title to the property which is the subject matter of the an appeal from judgment or final order of CSC shall be taken to
action (Art. 477). the CA whether the appeal involves questions of fact, law or
mixed within 15 days from notice of the award, judgment, final
NOTE: In the absence of such legal or equitable title, there is no order or resolution.
cloud to be prevented or removed.
FINDINGS OF FACT NOT REVIEWABLE: The findings of the
In this action, the competent court is tasked to determined the commission when supported by substantive evidence, shall be
respective rights of the complainant and other claimants, not only final and non-reviewable.
to place things in their proper places, and make the claimant, who
has no rights to said immovable, respect and not disturb the one SEC. 3-4
so entitled, but also for the benefit of both, so that whoever has
the right will see every cloud of doubt over the property WHEN TO FILE THE PETITION; DISTINCTIONS IN THE
dissipated, and he can thereafter, fearlessly introduce any desired APPLICATION OF RULE 65 TO OTHER TRIBUNALS, OFFICERS OR
improvements as well as use, and even abuse the property. PERSONS:
This is an action quasi in rem wherein an individual is named a RULE 64 RULE 65

defendant and the purpose of the proceeding is to subject his Shall be filed within 30 days Shall be filed not later than 60
interests to the obligation or loan burdening the property. It deals from notice of judgment, etc. days from notice of the
with status, ownership or liability of a particular property but judgment, etc. or from notice
which are intended to operate on these questions only as NOTE: In case of certiorari of the denial of the motion for
between the particular parties to the proceedings and not to directed against an reconsideration or motion for
ascertain or cut off the rights or interests of all possible claimants. interlocutory order of the new trial
Hence, it is conclusive only between the parties. commission is allowed, the
period in Rule 65 shall apply.
Requisites: Fresh period rule does not In case the M/R or the new trial
apply to the timeliness of the is filed and denied, the petition
1. The plaintiff or the complainant has a legal or equitable petition under Rule 64. may nevertheless be filed not
title or interest in the real property subject of the action; later than 60 days counted
and from notice of the denial of the
2. Deed, claim, encumbrance or proceeding claimed to be motion. In effect, the rule
casting cloud on his title must be shown to be in fact provides for the fresh-period
invalid or inoperative despite its prima facie appearance rule.
of validity or legal efficacy.
MOTION FOR NEW TRIAL OR MOTION FOR RECONSIDERATION: If
such motions are allowed, the filing of either shall interrupt the
period for the filing of the petition for certiorari;
If the motion is denied, aggrieved party may file the petition

within the remaining period, but which shall not be less than 5
days in any event, reckoned from notice of denial;

1. That the petition must be verified;
If the motion is pro forma, the period of the filing of the petition is 2. That the petition shall state the specific material dates
not interrupted. showing that it was filed within the period fixed. This is
the material data (date) rule; and
PAYMENT OF DOCKET AND LAWFUL FEES: Upon the filing of the 3. That the petition shall contain a sworn certification
petition, the petitioner shall pay to the clerk of court the docket against forum-shopping.
and other lawful fees and deposit the amount of P500.00 for
costs. EFFECT OF FAILURE TO COMPLY WITH THE PROVISION ON FORM
AND CONTENTS OF THE PETITION: The failure of petitioner to
SEC. 8 comply with any of the foregoing requirements shall be sufficient
FILING OF THE PETITION DOES NOT STAY EXECUTION: The filing ground for the dismissal of the petition.
of the petition shall not have the effect of staying the execution of
the judgment, etc. unless the SC shall direct otherwise. SEC. 6-7
To stay the execution, Sec. 7 of Rule 65 may be availed of ORDER TO COMMENT; OUTRIGHT DISMISSAL:
suppletorily.
1. Court has 2 options upon receipt of the petition: to deny
Section 7. Expediting proceedings; injunctive relief. — the petition outright or to order the filing of a comment;
The court in which the petition is filed may issue orders 2. Grounds:
expediting the proceedings, and it may also grant a temporary
restraining order or a writ of preliminary injunction for the a. If the petition is not sufficient in form and
preservation of the rights of the parties pending such substance;
proceedings. The petition shall not interrupt the course of the b. Petition is filed manifestly for delay;
principal case unless a temporary restraining order or a writ of c. The question raised is too unsubstantial to warrant
preliminary injunction has been issued against the public further proceedings.
respondent from further proceeding in the case. (7a)
3. Court shall order the respondents to file their comments
SEC. 5 within 10 days from notice if it finds the petition
sufficient in form and substance (Sec.6).
FORM OF THE PETITION: The petition shall be verified and filed in
18 legible copies (Sec.5). FORM OF THE COMMENT: The comments of the respondents
shall be filed in eighteen (18) legible copies. The original shall be
PARTIES: The petition shall name the aggrieved party as petitioner accompanied by certified true copies of such material portions of
and shall join as respondents the Commission concerned and the the record as are referred to therein together with other
person or persons interested in sustaining the judgment, final supporting papers. The requisite number of copies of the
order or resolution a quo. comments shall contain plain copies of all documents attached to
the original and a copy thereof shall be served on the petitioner.
CONTENTS OF THE PETITION:
NO OTHER PLEADING TO BE FILED: No other pleading may be
1. The petition shall state the facts with certainty, present filed by any party unless required or allowed by the Court.
clearly the issues involved;
2. Set forth the grounds and brief arguments relied upon SEC. 9
for review;
3. The petition shall be accompanied by a clearly legible ORAL ARGUMENTS; MEMORANDA; SUBMISSION FOR DECISION:
duplicate original or certified true copy of the judgment, Unless the Court sets the case for oral argument, or requires the
final order or resolution subject thereof, together with parties to submit memoranda, the case shall be deemed
certified true copies of such material portions of the submitted for decision upon the filing of the comments on the
record as are referred to therein and other documents petition, or of such other pleadings or papers as may be required
relevant and pertinent thereto. The requisite number of or allowed, or the expiration of the period to do so.
copies of the petition shall contain plain copies of all
documents attached to the original copy of said RULE 65
petition; CERTIORARI, PROHIBITION AND MANDAMUS
4. Shall state the specific material dates showing that it
was filed within the period fixed; CERTIORARI
5. The petition shall further be accompanied by proof of
service of a copy thereof on the Commission concerned CERTIORARI UNDER RULE 65, NOT A MODE OF APPEAL; NOT
and on the adverse party, and of the timely payment of CERTIORARI UNDER RULE 45:
docket and other lawful fees;
6. Petition shall contain a sworn certification against RULE 45 RULE 65
forum-shopping; A mode of appeal Not a mode of appeal
7. The petition shall pray for judgment annulling or Petition for review on certiorari Petition for certiorari
modifying the questioned judgment, etc. or appeal by certiorari
GR: Appeal to the SC may be
VERIFICATION; MATERIAL DATA (DATE) RULE; CERTIFICATION taken only by petition for
AGAINST FORUM SHOPPING: review on certiorari under Rule
45;
Requisites:
XPN: In criminal cases where

the penalty imposed is death, for review
reclusion perpetua or life There is no available appeal or
imprisonment. any plain, speedy and adequate
A party desiring to appeal by remedy as a requisite.
certiorari from a judgment or Seeks the correction of
final order or resolution of the jurisdictional errors often
Court of Appeals, the arising out of grave abuse of
Sandiganbayan, the Regional discretion
Trial Court or other courts Does not dwell on the factual
whenever authorized by law, or legal merits of the case
may file with the Supreme Error amounts to grave abuse Erroneous findings of fact
Court a verified petition for of discretion amounting to lack constitute only a mistake of
review on certiorari. or excess of jurisdiction judgment
Shall raise only questions of Shall raise only questions of Not designed to question the
law. jurisdiction. wisdom or legal soundness of
the decision or order but only
AN ORIGINAL AND INDEPENDENT ACTION; A SPECIAL CIVIL jurisdictional errors of
ACTION: Certiorari, as a SCA, is an original action invoking the judgment
original jurisdiction of a court to annul or modify the proceedings Is filed within 60 days from Is to be filed within the period
of a tribunal, board or officer exercising judicial or quasi-judicial notice of judgment, order or of appeal (usually 15 days from
functions. resolution notice of the judgment or final
order or 30 days where a
It is an original and independent action that is not part or record on appeal is required)
continuation of the trial or the proceedings on the complaint filed An original and independent A continuation of the original
before the TC. action case
Impleads the tribunal, court, The parties are the original
CERTIORARI REVIEWS ERRORS OF JURISDICTION, NOT ERRORS board or officer parties to the case
OF JUDGMENT: Petition for certiorari under Rule 65 is limited to
resolving errors of jurisdiction. NOTE: The remedies of appeal and certiorari are mutually
exclusive, not alternative or successive. They are antithetical to
Petition for certiorari under Rule 65 is limited to correction of each other. The SCA of certiorari cannot be used as a substitute
errors of jurisdiction or grave abuse of discretion amounting to for an appeal which the petitioner already lost.
lack or excess of jurisdiction.
Leynes v. CA
Rule 45 however, is limited to reviewing only errors of law, not of
fact.
APPEAL CERTIORARI
As to the purpose
Error of judgment: One which the court may commit in the
Correction of errors of Correction of errors of
exercise of its jurisdiction and which error is reviewable only by an
judgment/ of fact or of law. jurisdiction, not errors of
appeal.
judgment
Even if the findings of the court
Error of jurisdiction: One where the act complained of was issued
are incorrect, as long as it has RATIO: To rule otherwise
by the court without or in excess of jurisdiction and which error is
jurisdiction over the case, such means that every error
correctible only by extraordinary writ of certiorari.
correction is normally beyond committed by a court would
the province of certiorari deprive it of its jurisdiction and
Where the issue or question involved affects the wisdom or legal
every erroneous judgment
soundness of decision, and not the jurisdiction of the court to
would be void. The
render the decision, the same is beyond the province of a SCA.
administration of justice will
not survive under such rule.
Extra-ordinary writ of certiorari will not be issued to cure errors in
proceedings or erroneous conclusions of law or fact. As to the manner of filing
CA exercises its appellate Higher court uses its original
Generally, under Rule 65, a superior court does not assess or jurisdiction and power of jurisdiction in accordance with
weigh the sufficiency of evidence based its or his resolution or review. its power of control and
decision. supervision over the
proceedings of lower courts.
See: De los Santos v. Metrobank, 2012 A continuation of the original An original and independent
suit action that was not part of the
CERTIORARI DISTINGUISHED FROM APPEAL: trial that had resulted in the
rendition of the judgment or
CERTIORARI APPEAL order complained of.
Invokes the original jurisdiction Invokes the appellate Parties to an appeal are the Parties are the aggrieved party
of the court jurisdiction of the court original parties to the action. (who thereby becomes the
petitioner) against the lower
An independent action based Decisions, final orders or
on the specific ground and a resolutions of the CA regardless court or quasi-judicial agency
and the prevailing parties
general rule, cannot be availed of the nature of the action or
of as a substitute for the lost proceedings involved may be (public and private
remedy of an ordinary appeal. appealed by filing of a petition respondents)

As to the subject matter b. May a SCA for cetitorari prosper in case of denial of the
Only judgments or final orders May be directed against an motion to dismiss?
and those that the Rules so interlocutory order of the
declare are appealable lower court prior to an appeal A:
from the judgment or where
there is no appeal or any plain, a. No, the proper remedy was appeal from the order of
speedy or adequate remedy. dismissal. The special civil action fir certiorari cannot
As to the period of filing take place of a lost appeal. Note, under the current
Should be filed within 15 days Should be filed within 15 days rules, if the order of dismissal is without prejudice, the
from notice of the judgment or from the notice of denial of the order of dismissal is not appealable. The remedy is the
final order appealed from or of decision or of the petitioner’s appropriate special civil action under Rule 65. If the
denial of the petitioner’s timely filed motion for new dismissal is with prejudice, the order is appealable.
motion for new trial or for trial or motion for b. An order denying a motion to dismiss is an interlocutory
reconsideration. Where record reconsideration. order, and hence, not appealable. The remedy of the
on appeal is required, appellant aggrieved party is to file an answer and to interpose as
must file a notice of appeal and defenses the objections raised in his motion to dismiss,
record on appeal within 30 proceed to trial, and in case of an adverse decision, to
days from said notice of the elevate the entire case by appeal in due course.
judgment or final order. However, if the denial is attended by a grave abuse of
As to the need for a Motion for reconsideration discretion, certiorari and prohibition are proper
Not required Generally, MR is required in remedies from such order of denial.
order to afford the tribunal an
opportunity to correct the WHEN CERTIORARI IS AVAILABLE DESPITE THE LOSS OF APPEAL:
alleged errors.
1. When public welfare and the advancement of public
PETITION FOR REVIEW ON CERTIORARI (APPEAL BY CERTIORARI) policy dictates
AND PETITION FOR CERTIORARI ARE MUTUALLY EXCLUSIVE: Both 2. When the broader interest of justice so requires
are mutually exclusive remedies. They cannot co-exist with each 3. When the writs issued are null and void
other. 4. When the questioned order amounts to an oppressive
exercise of judicial authority
If the petition for review is available, even prescribed, the nature
of the questions of law intended to be raised on appeal is of no ESSENTIAL REQUISITES FOR PETITION FOR CERTIORARI
consequence.
1. The petition is directed against a tribunal, board or
SOME PROCEEDINGS WHERE CERTIORARI IS NOT AVAILABLE: officer exercising judicial or quasi-judicial function
2. Such tribunal, board or officer has acted without or in
a. Petition for writ of amparo; excess of jurisdiction or with grave abuse of discretion
b. Petition for writ of habeas data; amounting to lack or excess of jurisdiction
c. Small claims; and 3. There is neither appeal nor any plain, speedy and
d. Cases governed by the Rules on summary procedure adequate remedy in the ordinary course of law for the
XPN: Go v. CA purpose of annulling, or modifying the proceeding.
In this case, the SC suspended the rules to promote There must be capricious, arbitrary and whimsical
substantial justice. The SC gave due course to the exercise of power for it to prosper
petition pro hac vice because of the extraordinary
circumstances of the case. The SC held that allowing the RESPONDENT MUST EXERCISE JUDICIAL OR QUASI-JUDICIAL
petition would avoid mischiefs sought to be curbed by FUNCTIONS: Certiorari does not likewise lie to set aside an
the Rules and would give spirit and life to the Rules on executive order issued by a city mayor who does not exercise
Summary procedure. judicial or quasi-judicial functions.
JUDICIAL COURTESY IS NOT THE PREVAILING RULE: With the The issuance of an EO is not judicial, quasi-judicial or a mandatory
amendment, the lower court or tribunal can no longer use judicial act, a petition for certiorari and prohibition is an incorrect
courtesy as an excuse. It has to proceed with the principal case remedy.
within the required period unless it is prevented from doing so by
TRO or writ of preliminary injunction. JUDICIAL FUNCTION- where he has the power in determine what
the law is and what the legal rights of the parties are, and then
CERTIORARI NOT A SUBSTITUTE FOR LOST APPEAL: Certiorari is undertakes to determine these questions and adjudicate upon the
not and cannot be made a substitute for an appeal where the rights of the parties.
latter remedy is available but was lost through fault or negligence.
QUASI-JUDICIAL FUNCTION- applies to the action, discretion, etc.,
CASE 15: Mayon Corporation filed a complaint for foreclosure of of public administrative officers or bodies, which are required to
real estate mortgage against one of its sales agents, A who was investigate facts or ascertain the existence of facts, hold hearings,
discovered to have incurred a shortage in his accounts. and draw conclusions from them as a basis for their official action
and to exercise discretion of a judicial nature.
Acting on the defendant’s motion to dismiss, the court dismissed
the complaint. On March 15, 1991, Mayon Corp. filed with the SC MINISTERIAL FUNCTION- one which an officer or tribunal
a special civil action for certiorari. performs in the context of a given set of facts, in a prescribed
manner and without regard to the exercise of his own judgment
a. Should the SC give due course to the petition?; and upon the propriety or impropriety of the act done.

3. Court which orders immediate execution of a final order
JURISDICTIONAL ERRORS: The sole office of a writ of certiorari is without awaiting the expiration of the period to appeal
the correction of errors of jurisdiction, including the commission 4. By considering the motion for execution of the
of grave abuse of discretion amounting to lack of jurisdiction, and petitioner abandoned and ordering the payment of
does not include correction of public respondent’s evaluation of separation pay even if he did not abandon his claim for
the evidence and factual findings are based thereon. reinstatement
5. Without considering the existence of employer-
ERRORS OF JUDGMENT: Certiorari will not be issued to cure employee relationship
errors in proceedings, or correct erroneous conclusions of law or 6. Court allows an uninterested person to intervene in a
fact so long as a court acts within its jurisdiction, any alleged case
errors committed in the exercise of jurisdiction will only amount
to errors of judgment. NECESSITY FOR A MOTION FOR RECONSIDERATION: Except in
some recognized situations, the filing of a motion for
NOTE: Under Sec. 1 of Rule 65, the act of the tribunal, board, or reconsideration is a condition sine qua non to the filing of a
officer which is the object of the petition should constitute errors petition for certiorari. This is intended to afford the public
of jurisdiction which may be any of the following: respondent an opportunity to correct any actual or fancied error
attributed to it by way of re-examintion of the legal and factual
1. Acting without jurisdiction aspects of the case.
2. Acting in excess of jurisdiction even if initially the
tribunal, board or officer had jurisdiction To warrant deviation from this rule, one must proffer a compelling
3. Acting with grave abuse of discretion amounting to lack reason.
of jurisdiction or in excess of jurisdiction even if the
tribunal, board or officer initially had jurisdiction. EXCEPTIONS TO THE REQUIREMENT OF A MOTION FOR
RECONSIDERATION:
ACTING WITHOUT JURISDICTION; IN EXCESS OF JURISDICTION;
GRAVE ABUSE OF DISCRETION: 1. The order is a patent nullity, as where the court a quo
has no jurisdiction
WITHOUT JURISDICTION- Denotes that the tribunal, board, or 2. The questions raised in the certiorari proceeding have
officer acted with absolute lack of authority. There is excess of been duly raised and passed upon by the lower court, or
jurisdiction when the public respondent exceeds its power or acts are the same as those raised and passed upon in the
without any statutory authority. lower court
3. There is an urgent necessity for the resolution of the
GRAVE ABUSE OF DISCRETION- Such capricious, and whimsical question and any further delay would prejudice the
exercise of judgment as to be equivalent to lack or excess of interests of the government or of the petitioner
jurisdiction; the power is exercised in an authority or despotic 4. The subject matter of the action is perishable
manner by reason of passion, prejudice, or personal hostility. 5. Under the circumstances, a MR would be useless
6. The petitioner was deprived of due process and there is
EXCESS OF JURSIDICTION ABSENCE OF JURISDICTION an extreme urgency for relief
An act, though within the Lack or want of legal power, 7. In a criminal case, relief from order of arrest is urgent
general power of a tribunal, right, or authority, to hear and and the granting of such relief by the TC is improbable
board or officer is not determine a cause or causes, 8. The proceedings in the lower court are a nullity for lack
authorized and invalid with considered either in general or of sue process
respect to the particular with reference to a particular 9. The proceedings were done ex parte or in which the
proceeding because the matter petitioner had no opportunity to object
conditions which alone 10. Where the issue raised is one purely of law
authorize the exercise of the 11. Where public interest is involved (Tan v.
general power in respect Sandiganbayan)
thereof are wanting
Signifies an act initially An absence of power or ABSENCE OF APPEAL OR PLAIN, SPEEDY AND ADEQUATE
authorized by law but authority to perform a REMEDY: Where appeal is available to the aggrieved party, the
performed beyond the bounds particular act action for certiorari will not be entertained. Remedies of appeal
of that authority and certiorari are mutually exclusive, not alternative or
successive.
GRAVE ABUSE OF DISCRETION: Mere abuse of discretion is not
enough. It must be grave, as when it is exercised arbitrarily or The special civil action for certiorari is a limited form of review and
despotically by reason of passion or personal hostility. The abuse a remedy of last recourse. Certiorari is not a remedy for a lost
of discretion must be patent and gross as to amount to an evasion appeal.
of a positive duty or a virtual refusal to perform a duty enjoined
by law, or to act at all in contemplation of law, as where the WHEN CERTIORARI IS ALLOWED DESPITE AVAILABILITY OF
power is exercised in an arbitrary and despotic manner by reason APPEAL: When it can be shown that appeal would be inadequate,
of passion and hostility. slow, insufficient, and will not promptly relieve the party from the
injurious effects of the order complained of.
Examples:
It is the inadequacy, not the mere absence, of all other legal
1. The trial court fails to determine a factual controversy remedies and the danger of failure of justice without the writ that
before issuing a writ of demolition must usually determine the propriety of certiorari.
2. A judge hears a motion on the same day it was filed
Examples of situations where certiorari is a remedy:

WHEN TO FILE PETITION: The main rule to be remembered is that
1. Order denying a petition for relief is not appealable the petition is to be filed not later than 60 days from notice of the
2. An order dismissing an action without prejudice may the judgment, order or resolution
subject of a petition for certiorari
3. A denial of a motion to dismiss for lack of jurisdiction When a MR or a MOTION FOR NEW TRIAL is timely filed:
over the subject matter, and the denial of a motion for Whetehr such is required or not, the 60 day period shall be
reconsideration of the order of denial (interlocutory counted from notice of the denial of the said motion
orders)
GRANT OF EXTENSIONS PROHIBITED: The removal of paragraph
SEC.4-5 under the amendment by A.M. 07-7-12-SC of Sec. 4 simply meant
that there can be no longer any extension of the 60-day period
FILING OF THE PETITION FOR CERTIORARI: The aggrieved person within which to file the petition for certiorari (Laguna Metts
may file a verified petition which must: Corporation v. Caalam).
a. Allege the facts with certainty,
b. Pray that judgment be rendered annulling or modifying In Domdom v. Sandiganbyan, the court clarified that the filing of a
the proceedings of the tribunal, board, or officer motion for extension of time to file a petition under Rule 65 is not
c. Grant such incidental reliefs as law and justice may absolutely prohibited. If absolute proscription were intended, the
require deleted portion could just have been simply reworded to
specifically prohibit an extension of time to file such petition.
NOTE: Sec.3 of Rule 46 also provides that the petition shall Motions for extension may be allowed, subject to the court’s
contain: sound discretion, and only under exceptional and meritorious
d. Full names and addresses of all the petitioners and cases.
respondents
e. Concise statement of the matters involved CASES WHERE PETITION IS FILED:
f. Factual background of the case
g. Grounds relied upon for the relief prayed for 1. Acts or omissions of a MTC, corporation, board, officer
or person-RTC exercising jurisdiction over the territorial
OTHER REQUIREMENTS: The petition shall be accompanied by: area
1. A certified true copy of the judgment, order or 2. Acts or omissions of a quasi-judicial agency- cognizable
resolution subject of the petition (if mere photocopies, only by the CA, unless otherwise provided by the ROC
the petition will be rendered insufficient in form) 3. The petition may be filed in the Sandiganbayan whether
2. Copies of all pertinent pleadings and documents or not the same is in aid of its appellate jurisdiction
3. Sworn certification of non-forum shopping
Dean Riano’s comment: Under the law, the authority of the
NOTE: The rule speaks of 2 sets of documents. In the Copies of all Sandiganbayan to entertain petitions for certiorari, prohibition
pertinent pleadings and documents, mere photocopies thereof and mandamus, is only in aid of its appellate jurisdiction. There
may be attached to the petition. appears to be a need to take a second look at the amendment
which clearly is not in accord with substantive law. See Sec. 4 of
CERTIFICATION AGAINST FORUM-SHOPPING: Sworn certification: RA 8249
1. That he has not theretofore commenced any other 4. Election cases involving an act or omission of a municipal
action involving the same issues in the Supreme Court, or regional trial court, the petition shall be filed
the Court of Appeals or different divisions thereof, or exclusively with the COMELEC, in aid of its appellate
any other tribunal or agency; jurisdiction.
2. That if there is such other action or proceeding, he must
state the status of the same; and “In aid of its appellate jurisdiction”- A court may issue a writ of
3. That if he should thereafter learn that a similar action or certiorari in aid of its appellate jurisdiction if said court has
proceeding has been filed or is pending before the jurisdiction to review, by appeal or writ of error, the final orders
Supreme Court, the Court of Appeals, or different or decisions of the lower court.
divisions thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid courts and HIERARCHY OF COURTS PRINCIPLE: SC’s original jurisdiction to
other tribunal or agency thereof within five (5) days issue writs of:
therefrom (Sec. 3, Rule 46). a. certiorari,
b. prohibition,
“MATERIAL DATE RULE”- The following materials must be stated c. mandamus,
in the petition d. quo warranto,
e. habeas corpus
1. when notice of the judgment or final order or resolution f. injunction
subject thereof was received, is not exclusive. It is shared by the SC with the RTC and the CA.
2. when a motion for new trial or reconsideration, if any, The principle of hierarchy of courts must be observed. A direct
was filed and invocation of the SC’s original jurisdiction to issue these writs
3. when notice of the denial thereof was received. (Sec. 3, should be allowed only when there are special and important
Rule 46) reasons therefor, clearly and specifically set out in the petition.
Ratio: To determine the timeliness of the petition, since the PARTIES TO THE PETITION:
perfection of an appeal in the manner and within the period
prescribed by law is jurisdictional.

1. The petition shall be filed by the “person aggrieved” 3. The questions raised in the petition are too
which pertains to the person who was a party in the unsubstantial to require consideration
proceedings before the lower court.
2. When the petition relates to the acts or omissions of a EFFECTS OF FILING OF UNMERITORIOUS PETITIONS: The court
judge, court, quasi-judicial agency, tribunal, corporation, may award in favor of respondent treble costs solidary against the
board, officer, or person, the petitioner shall join as petitioner and counsel, in addition to subjecting the counsel to
private respondent with the public respondent, the administrative sanctions.
person or persons interested in sustaining the
proceedings in the court In addition, the court may impose motu proprio, based on res ipsa
liquitur, other disciplinary sanctions on erring lawyers.
DUTY OF PRIVATE RESPONDENT: The private respondent should
appear and defend not only in his own behalf but also of the RELIEF:
public respondent
1. Primary:
PUBLIC RESPONDENT: a. Annulment or
b. Modification of judgment, order, resolution, or
GR: Not mandated to appear. He is impleaded therein as a proceeding
nominal party.
2. Other incidental reliefs as law and justice may require
XPN: Specifically directed by the court where the action is
pending. REVIEW OF JUDGMENT IN A CERTIORARI PETITION: It is
reviewable by appeal because certiorari is an original action.
SEC. 7
CERTIORARI UNDER RULE 45 CERTIORARI UNDER RULE 65
NECESSITY FOR A WRIT OF INJUNCTION: The petition shall not Aka appeal by certiorari, Aka petition for certiorari
interrupt the course of the principal case unless a temporary petition for review on certiorari
restraining order or a writ of preliminary injunction has been A mode of appeal A special civil action; an original
issued against the public respondent from further proceeding in and independent action
the case. It seeks to review final Usually directed against
judgments or final orders interlocutory orders or matters
DUTY OF THE COURT WHEN A PETITION FOR CERTIORARI IS where no appeal may be taken
FILED; ADMINISTRATIVE SANCTIONS: Under the new rule, the from
public respondent has the duty to proceed with the principal case Raises only questions of law; Raises questions of jurisdiction
within 10 days from the filing of the petition for certiorari with a questions of facts are not because a tribunal, board or
higher court absent any TRO or injunction. Failure of the public entertained officer exercising judicial or
respondent to proceed with the principal case may be a ground quasi-judicial functions has
for an administrative charge. acted without jurisdiction or in
excess of jurisdiction or with
DUTY OF THE COURT WHICH ISSUED THE PRELIMINARY grave abuse of discretion
INJUNCTION: It shall decide the main case or petition within 6 Filed within 15 days from Filed not later than 60 days
months from the issuance of the writ (Sec. 5, Rule 58). notice of judgment or final from notice of judgment
order appealed from
SEC. 6, 8, 9 Does not require a prior MR GR: Requires a prior MR
Stays the judgment appealed Does not stay the judgment or
ORDER TO COMMENT: Instead of summons, the court shall issue from order unless enjoined or
an order requiring the respondent to comment on the petition restrained
within 10 days from receipt of a copy of the petition if the court
The parties ate the original The board, tribunal, officer
finds that the petition is sufficient in form and substance (Sec. 6) parties with the appealing exercising judicial or quasi-
party as the petitioner and the judicial functions is impleaded
NOTE: The petition may be outrightly dismissed if found not to be adverse party as respondent as respondent
sufficient in both form and substance
without impleading the lower
court or its judge
PROCEEDINGS AFTER COMMENT: After the comment or other
Filed with the SC Filed with the RTC, CA, SC, or
pleadings are filed (or the time to file the same has expired), the
Sandiganbayan
court has the following options:
RULE 45 PETITION CONSIDERED AS A RULE 65 PETITION: This
1. Hear the case
happens when the act complained of is perpetrated by a court
2. Require the parties to submit memoranda (Sec. 8)
with grave abuse of discretion amounting to lack or excess of
jurisdiction; but when the petition denominated as a Rule 45
NOTE: The court need not conduct a hearing. Instead, it may
petition neither involves any issue on jurisdiction nor grave abuse
require the filing of memoranda, unless it finds a hearing
of discretion on the part of the CA, it should be dismissed outright.
necessary.
CERTIORARI UNDER RULE 64 CERTIORARI UNDER RULE 65
GROUNDS FOR DISMISSAL OF THE PETITION:
Directed only against the Directed against any tribunal,
judgments, final orders, or board, or officer exercising
1. The petition is found to be patently without merit
2. The petition is prosecuted manifestly for delay resolutions of the COMELEC judicial or quasi-judicial
and COA functions
Filed within 30 days from Filed within 60 days from
notice of the judgment notice of the judgment 3. There is no appeal or any plain, speedy and adequate
The filing of MR or New Trial, if If the MR or New Trial is remedy in the ordinary course of law;
allowed, interrupts the period denied, the period within 4. The petition shall likewise be accompanied by a certified
for the filing of a petition for which to file the petition is 60 true copy of the judgment, order or resolution subject
certiorari; if denied, the days from notice of the denial thereof, copies of all pleadings and documents relevant
aggrieved party may file the of the motion. and pertinent thereto, and a sworn certification of non-
petition within the remaining forum shopping as provided in the third paragraph of
period, but which shall not be section 3, Rule 46.
less than 5 days reckoned from
the notice of denial A respondent is said to be exercising JUDICIAL FUNCTION when
he has the power to determine what the law is and what the legal
PROHIBITION rights of the parties are, and then undertakes to determine these
questions and adjudicate upon the rights of the parties.
SEC. 2
QUASI-JUDICIAL FUNCTION applies to action and discretion of
PURPOSE AND FUNCTION OF THE REMEDY: It is an extraordinary public administrative officers or bodies, which are required to
writ commanding a tribunal, corporation, board, officer or person, investigate facts or ascertain the existence of facts, hold hearings
whether exercising functions that are judicial, quasi-judicial or and draw conclusions from them as basis for their official action
ministerial, to desist from further proceedings when such are and to exercise discretion of a judicial nature.
conducted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of MINISTERIAL FUNCTION is one which an officer or tribunal
jurisdiction, and there is no appeal or any other plain, speedy, and performs in the context of a given set of facts, in a prescribed
adequate remedy in the ordinary course of law (Sec. 2). manner and without regard for the exercise of his own judgment
upon the propriety or impropriety of the act done.
This is to secure a order or judgment to command the respondent
tribunal, board, corporation or officer to desist from further Excludes its use against any person or group of persons acting in a
proceedings in the action. purely private capacity. It will not lie against private individuals or
corporations.
It is a process by which a superior court prevents inferior courts,
etc. from usurping or exercising a jurisdiction with which they It is ordinarily available only when the usual and ordinary
have not been vested by law. proceedings at law or in equity are inadequate to afford redress.
This is to prevent encroachment, excess, usurpation or The Rule unequivocally require that before resorting to
assumption of jurisdiction on the part of a tribunal, corporation, prohibition, it must be established that there is no appeal or any
etc. It is to prevent the unlawful and oppressive exercise of legal plain, speedy and adequate remedy in the ordinary course of law.
authority and to provide for a fair and orderly administration of
justice. It is not available against a mere resolution expressing the desire
of a Sangguniang Panglungsod to expropriate property. At this
Certiorari is a corrective remedy while prohibition is a preventive stage, it would be premature for the petitioners to mount any
remedy. judicial challenge against the resolution because the power of
eminent domain could be exercised by the City only through the
PROHIBITION AS AN ORIGINAL ACTION: It is not a mere filing of a verified complaint in the proper court. Before the city as
continuation or a part of the trial resulting in the rendition of the the expropriation proceeding could be said to exist. Until then, the
judgment or order complained of. petitioners as the owners could not be deemed as having been
deprived of their property under the power.
It is not ancillary or a substitute to the action for which the
supervisory authority of the appellate court is sought and PROHIBITION DISTINGUISHED FROM INJUNCTION: The latter is
directed. an ordinary action.
It does not divest the inferior or trial court of its jurisdiction validly PROHIBITION DISTINGUISHED FROM CERTIORARI:
acquired over the case pending before it; it is merely an
invocation for the exercise of its supervisory power over the lower PROHIBITION CERTIORARI
court to insure that the lower court acts within its jurisdiction. Directed not only against a Seeks to annul acts of
respondent exercising judicial respondent performing judicial
Mere filing thereof will not immediately enjoin the performance or quasi-judicial functions but or quasi-judicial functions.
of an act sought to be prevented while the petition is pending. even to ministerial;
Petitioner has to obtain a writ of preliminary injunction or a TRO Directed to the tribunal itself Directed to the action of the
pending final resolution of the petition. commanding it to desist from court which is sought to be
further proceeding with the annulled.
REQUISITES: case;
To command the respondent to To annul or modify the
1. The act impugned must be that of a tribunal, desist from further judgment, order, resolution, or
corporation, board, officer or person, whether proceedings; proceedings of the public
exercising functions that are judicial, quasi-judicial or respondent.
ministerial;
2. They must have acted without or in excess of CASE 16: In an action for collection of sum of money, defendant
jurisdiction or with grave abuse of discretion amounting moved to dismiss the complaint for improper venue. The motion
to lack of jurisdiction;

and a subsequent motion for reconsideration of order of denial be the imperative duty of the respondent to perform the act
were denied. required.
A: The Court is deemed to have acted with grave abuse of A clear right is a right which is indubitably granted by law or
discretion. To prevent the court from further proceeding with the inferable as a matter of law. If the right is clear and the case is
case, a petition for prohibition would be proper to command the meritorious, objections raising merely technical questions will be
court from further proceedings. To annul the order of the court, disregarded. But where the right sought to be enforced is in
the remedy is certiorari. substantial doubt or dispute, mandamus cannot issue.
Where the MD is wrongfully denied under circumstances It will not issue to enforce a right, or to compel compliance with a
attended by grave abuse of discretion amounting to lack duty, which is questionable or over which a substantial doubt
jurisdiction. exists.
MANDAMUS MINISTERIAL VERSUS DISCRETIONARY ACTS:
SEC. 3 MINISTERIAL DISCRETIONARY ACT

The officer or tribunal performs The law imposes a duty upon a
NATURE AND PURPOSE OF MANDAMUS: It is an extraordinary in a given set of facts, in a public officer and gives him the
writ commanding a tribunal, corporation, board, officer or person prescribed manner, in right to decide how or when
to do an act required to be done: obedience to the mandate of a the duty shall be performed
legal authority, without regard
a. unlawfully neglects the performance of an act which the to the exercise of his own
law specifically enjoins as a duty resulting from an office, judgment upon the propriety
trust, or station, and there is no other plain, speedy and or impropriety of the act done.
adequate remedy in the ordinary course of law; or Demands no special judgment,
b. unlawfully excludes another from the use and discretion or skill. It is one in
enjoyment of a right or office to which such other is which nothing is left to
entitled, and there is no other plain, speedy and discretion and is simple and
adequate remedy in the ordinary course of law. definite duty imposed by law.
It is employed to compel the performance, when refused, of a Mandamus will not lie to control the discretion of a judge or
ministerial duty which, as opposed to discretionary one, is that compel him to decide a motion pending before him in a particular
which an officer or tribunal performs in a given state of facts, in a way.
prescribed manner, in obedience to the mandate of legal
authority, without regard to or exercise of his or its own judgment It is also not proper against a government school or an official
upon the propriety or impropriety of the act done. with a duty that involves the exercise of discretion like on matters
of admission of students.
It is proper when the act against which it s directed is one
addressed to the discretion of the tribunal or officer. Mandamus is It will also not lie to compel an academic institution to allow the
not available to direct the exercise of a judgment or discretion in a graduation of a student who has failed to comply with the
particular way. It is not available against discretionary acts. academic rules of the school.
The function is to command, not inquire, expedite or to It is also not available to compel a school to confer upon a
adjudicate. graduate his degree with honors.
PRAYER IN A PETITION FOR MANDAMUS: Where administrative remedies are available, mandamus does not
apply. Prior resort to exhaustion of administrative remedies
a. judgment be rendered commanding the respondent, however is not required where the questions raised are purely
immediately or at some other time to be specified by legal or when he respondent is estopped from invoking the rule.
the court, to do the act required to be done to protect
the rights of the petitioner, and Mandamus will not lie to compel a prosecutor to file an
b. to pay the damages sustained by the petitioner by information because mandamus is a remedy to compel the
reason of the wrongful acts of the respondent (Sec. 3). performance of ministerial duty.
REQUISITES FOR MANDAMUS TO BE AVAILABLE: XPN: To compel a prosecutor who refuses to:
a. plaintiff has a clear legal right to the act demanded; a. To include in the information certain
b. it must be the duty of the defendant to perform the act, persons, whose participation in the
because it is mandated by the law; commission of crime clearly appears; and
c. the defendant unlawfully neglects the performance of b. To follow the proper procedure for the
the duty enjoined by law; discharge of these persons in order that
d. The act to be performed is ministerial not discretionary; they may be utilized as prosecution
and witnesses.
e. There is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of the law. In matters involving the exercise of judgment and discretion,
mandamus may only be resorted to, to compel the respondent to
EXISTENCE OF A CLEAR LEGAL RIGHT: It is essential that petitioner take the action; it cannot be used to direct the manner or the
should have a clear legal right to the thing demanded and it must particular way of discretion is to be exercised.

MANDAMUS AND INJUNCTION:
Mandamus will lie to compel execution of a judgment because
execution of a final and executor judgment is a matter of right. INJUNCTION MANDAMUS
Ordinary A special civil action
It will also not lie to compel the performance of an act prohibited Directed even against a private Directed to a tribunal, etc.
by law. litigant who has no duty arising because it or he unlawfully
from an office, etc. neglects the performance of a
De Castro v. JBC ministerial duty resulting from
office, etc.
The duty of the JBC to submit a list of nominees before the start of Has reference to performance
the President’s mandatory 90-day period to appoint is ministerial, of an act inimical to the
but its selection of the candidates whose names will be in the list interests of the plaintiff.
to be submitted to the President lies within the discretion of the
JBC. The object of the petitions for mandamus herein should only NATURE OF THE JUDGMENT IN MANDAMUS: A favorable
refer to the duty to submit to the President the list of nominees judgment rendered in mandamus is in the nature of a special
for every vacancy in the Judiciary, because in order to constitute judgment. It requires the performance of any act than the
unlawful neglect of duty, there must be an unjustified delay in payment of money or the sale or delivery of real or personal
performing that duty.[88] For mandamus to lie against the JBC, property the execution of which is governed by Sec.11, Rule 39.
therefore, there should be an unexplained delay on its part in
recommending nominees to the Judiciary, that is, in submitting Respondent who receives an adverse judgment shall be ordered
the list to the President. to perform the act required to be done to protect the rights of the
petitioner and to pay damages sustained by the petitioner by
DISCRETIONARY ACTS NOT COMPELLABLE BY MANDAMUS: reason of the wrongful acts of the respondent.
Mandamus will not issue to control or review the exercise of
discretion of a public officer where the law imposes upon him the DECLARATORY RELIEF TREATED AS MANDAMUS: Court may treat
right and duty to exercise his judgment in reference to any matter a petition for declaratory relief as one for mandamus if the issue
in which he is required to act. involved has far-reaching implications.
Reconstitution is not a ministerial act. How to rule on the WRIT OF CONTINUING MANDAMUS
admission of the reconstituted evidence cannot be compelled by
mandamus. MMDA v. Concerned Residents of Manila Bay
In matters involving the exercise of judgment and discretion, While the implementation of the MMDA’s mandated tasks may
mandamus may only be resorted to, to compel the respondent to entail a decision-making process, the enforcement of the law or
take the action. It cannot be used to direct the manner or the the very act of doing what the law exacts to be done is ministerial
particular way discretion is to be exercised. in nature and may be compelled by mandamus.
CASE 17: The SOJ reversed the resolution of the Provincial MEANING OF CONTINUING MANDAMUS: It is a writ issued by a
Prosecutor and directed the latter to move for the dismissal of court in an environmental case directing any agency or
the information which had been filed in the RTC of Pasig. May instrumentality of the government or officer thereof to perform
Mandamus lie to compel the judge to grant the motion? an act or series of acts decreed by final judgment which shall
remain effective until judgment is fully satisfied.
A:No, the act of the judge in granting or denying the motion is
discretionary act, not ministerial. WHEN THE WRIT IS AVAILABLE:
WHEN MANDAMUS MAY LIE TO COMPEL DISCRETIONARY ACTS: a. unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office,
GR: The respondent may only be directed by mandamus to act but trust or station in connection with the enforcement or
not to act in one way or the other. violation of an environmental law rule or regulation or a
right therein, or
XPN: Where there is gross abuse of discretion, manifest injustice b. unlawfully excludes another from the use or enjoyment
or palpable excess of authority. of such right
CONTRACTUAL DUTIES NOT COMPELLABLE BY MANDAMUS: NOTE: There must no other plain, speedy and adequate remedy in
Mandamus cannot lie to compel the performance of contractual the ordinary course of law.
obligations. It was not intended to aid the plaintiff in the
enforcement of mere contract right, or to take the place of the FORM AND CONTENTS OF THE PETITION: The person aggrieved
other remedies provided by law for the adjudication of disputed thereby may file a verified petition in the proper court, alleging
claims. the facts with certainty, attaching thereto supporting evidence,
specifying that the petition concerns an environmental law, rule
MANDAMUS AND PROHIBITION: or regulation, and praying that judgment be rendered
commanding the respondent to do an act or series of acts until
PROHIBITION MANDAMUS the judgment is fully satisfied, and to pay damages sustained by
To pray for judgment Available to compel the the petitioner by reason of the malicious neglect to perform the
commanding the respondent to performance of a ministerial duties of the respondent, under the law, rules or regulations. The
desist from further proceeding duty. petition shall also contain a sworn certification of non-forum
in the action. shopping (Sec. 1, Rule 8).

WHERE TO FILE THE PETITION: The petition shall be filed with the b. juridical person, or
Regional Trial Court exercising jurisdiction over the territory c. entity authorized by law,
where the actionable neglect or omission occurred or with the d. people’s organization,
Court of Appeals or the Supreme Court (Sec.2, Rule 8). e. non-governmental organization, or
f. any public interest group accredited by or registered
NO DOCKET FEES: There are no docket fees to be paid. The with any government agency (Sec. 1, Rule 7)
petitioner shall be exempt from payment thereof (Sec. 3, Rule 8).
The petition may be filed not only on one’s personal behalf but
ACTION OF THE COURT WHEN THE PETITION IS FILED: The court also on behalf of persons whose constitutional right to a balanced
in which the petition is filed may (1) issue such orders to expedite and healthful ecology is violated.
the proceedings, and (2) it may also grant a TEPO for the
preservation of the rights of the parties pending such proceedings An actual violation of the constitutional right to a balanced and
(Sec. 5, Rule 8). healthful ecology is not required. It is sufficient that the right is
threatened with a violation (Sec. 1, Rule 7).
TEPO is granted if it appears that the matter is of extreme urgency
and the applicant will suffer grave injustice and irreparable injury The violation or threatened violation is caused by an unlawful act
(Sec. 8, Rule 2). or omission and the one responsible for such is:
ORDER TO COMMENT: If the petition is sufficient in form and a. a public official or employee, or
substance, the court shall issue the writ and require the b. private individual or entity.
respondent to comment on the petition within ten (10) days from
receipt of a copy thereof. Such order shall be served on the It must be one involving environmental damage of such
respondents in such manner as the court may direct, together magnitude as to prejudice the life, health or property of
with a copy of the petition and any annexes thereto (Sec. 4, Rule inhabitants in two or more cities or provinces.
8)
VERIFIED PETITION; CONTENTS: The petition must be verified and
PROCEEDINGS AFTER COMMENT IS FILED: contain the personal circumstances of the petitioner. It shall also
contain the name and personal circumstances of the respondent
a. Court may hear the case. If it does so decide to conduct or by an assumed name if the name and personal circumstances
a hearing, the rule requires that it be summary in are unknown and uncertain (Sec.2, Rule 7).
nature;
b. The court may however, opt to merely require the It shall also state:
parties to submit memoranda (Sec. 6, Rule 8).
a. The environmental law, rule or regulation violated or
The petition shall be resolved without delay within sixty (60) days threatened to be violated;
from the date of the submission of the petition for resolution (Sec. b. the act or omission complained of;
6, Rule 8). c. the environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in
JUDGMENT; PERIODIC REPORTS: If warranted, the court shall: two or more cities or provinces; and
d. All relevant and material evidence consisting of the
a. Grant the privilege of the writ of continuing mandamus affidavits of witnesses, documentary evidence, scientific
requiring respondent to perform an act or series of acts or other expert studies, and if possible, object evidence
until the judgment is fully satisfied and (Sec. 2, Rule 7).
b. To grant such other reliefs as may be warranted
resulting from the wrongful or illegal acts of the The petition shall also contain the equivalent of a certification
respondent. against forum-shopping. It shall state that:
The court shall require the respondent to submit periodic reports (1) petitioner has not commenced any action or filed any
detailing the progress and execution of the judgment, and the claim involving the same issues in any court, tribunal or
court may, by itself or through a commissioner or the appropriate quasi-judicial agency, and no such other action or claim
government agency, evaluate and monitor compliance. The is pending therein;
petitioner may submit its comments or observations on the (2) if there is such other pending action or claim, a
execution of the judgment (Sec. 7, Rule 8). complete statement of its present status;
(3) if petitioner should learn that the same or similar action
COMMENTS OF PETITIONER: Petitioner may submit its comments or claim has been filed or is pending, petitioner shall
or observations on the execution of the judgment (Sec. 7, Rule 8). report to the court that fact within five (5) days
therefrom; and
RETURN OF THE WRIT; FINAL RETURN: Upon full satisfaction of (4) The reliefs prayed for which may include a prayer for the
the judgment, a final return of the writ shall be made to the court issuance of a TEPO (Sec. 2, Rule 7).
by the respondent. If the court finds that the judgment has been
fully implemented, the satisfaction of judgment shall be entered COURT WHERE THE ACTION IS FILED: SC or with any of the
in the court docket (Sec. 8, Rule 8). stations of the CA.
WRIT OF KALIKASAN DOCKET FEE: The petitioner shall be exempt from the payment of
docket fees (Sec. 4).
The writ is a remedy available to:
ISSUANCE OF THE WRIT: The court shall give an order: (a) issuing
a. a natural; or the writ; and (b) requiring the respondent to file a verified return.

Such order shall be issued within 3 days from date of the filing of
the petition. It shall be issued only if the petition is sufficient in CONTEMPT PROCEEDINGS: For any respondent (after a hearing)
form and substance (Sec.5). who:
a. Refuses
DUTY OF THE CLERK OF COURT: The clerk of court shall forthwith b. Unduly delays the filing of a return
issue the writ under the seal of the court including the issuance of c. Makes a false return
a cease and desist order and other temporary reliefs effective d. Disobeys
until further order. e. Desists a lawful process or order of the court
PENALTY FOR REFUSING TO ISSUE THE WRIT: A clerk of court who PRELIMINARY CONFERENCE; MODES OF DISCOVERY:
unduly delays or refuses to issue the writ after its allowance or a
court officer or deputized person who unduly delays or refuses to Purposes:
serve the same shall be punished by the court for contempt 1. Simplify the issues
without prejudice to other civil, criminal or administrative actions 2. Determine the possibility of stipulations or admissions
(Sec. 7). from the parties
SERVICE OF THE WRIT: The writ shall be served upon the NOTE: A preliminary hearing is NOT mandatory. The term “may”
respondent by a court officer. It may also be served by any person confers discretion to call a preliminary conference upon the court.
deputized by the court.
MOTION FOR CERTAIN RELIEFS SUCH AS:
The writ shall first be served personally upon the respondent. 1. Ocular inspection order
Otherwise, in cases wherein the writ cannot be served personally, 3. Production or inspection of documents or things (Sec.
the rule on substituted service shall apply (Sec.6, Rule 7, Part III, 12, Rule 7, Part III, Rules of Procedure for Environmental
Rules of Procedure for Environmental Cases). Cases).
PENALTY FOR REFUSING TO SERVE THE WRIT: A court officer or HEARING: After the preliminary conference, the petition shall also
deputized person, who: be set for a hearing. The period of hearing, including the
a. Unduly delays preliminary conference, shall not extend beyond 60 days and shall
b. Refuses to serve the writ s be given the same priority as petitions for the writs of habeas
Shall be punished for contempt without prejudice to other civil, corpus, amparo, and habeas data (Sec.11, Rule 7, Part III, Rules of
criminal or administrative actions (Sec.7, Rule 7, Part III, Rules of Procedure for Environmental Cases).
Procedure for Environmental Cases).
RELIEFS WHICH THE COURT MAY GRANT UNDER THE WRIT: The
RETURN OF RESPONDENT: The verified return shall be filed by the following reliefs may be granted under the writ of kalikasan:
respondent within a period of 10 days after service of the writ
(Sec.8, Rule 7, Part III, Rules of Procedure for Environmental a. Directing respondent to permanently cease and desist
Cases). The period of return is non-extendible. from committing acts or neglecting the performance of
a duty in violation of environmental laws resulting in
CONTENTS OF THE RETURN OF THE RESPONDENT: It shall contain environmental destruction or damage;
all defenses to show that the respondent did: b. Directing the respondent public official, government
1. Violate agency, private person or entity to protect, preserve,
2. Threaten to violate rehabilitate or restore the environment;
3. Allow the violation of any environmental law, rule or c. Directing the respondent public official, government
regulation agency, private person or entity to monitor strict
4. Commit any act resulting to environmental damage of compliance with the decision and orders of the court;
such magnitude as to prejudice the life, health, or d. Directing the respondent public official, government
property of inhabitants in 2 or more cities or provinces, agency, or private person or entity to make periodic
(Sec.8, Rule 7, Part III, Rules of Procedure for reports on the execution of the final judgment; and
Environmental Cases). e. Such other reliefs which relate to the right of the people
to a balanced and healthful ecology or to the protection,
NOTE: The return shall also include affidavits of witnesses, preservation, rehabilitation or restoration of the
documentary evidence, scientific or other expert studies, and if environment, except the award of damages to individual
possible, object evidence, in support of the defense of the petitioners (Sec.15, Rule 7, Part III, Rules of Procedure
respondent. for Environmental Cases).
WAIVER OF DEFENSES: All defenses not raised in the return shall APPEAL: Within fifteen (15) days from the date of notice of the
be deemed waived. adverse judgment or denial of motion for reconsideration, any
party may appeal to the Supreme Court under Rule 45 of the Rules
EFFECT OF FAILURE TO FILE THE RETURN: of Court. The appeal may raise questions of fact (Sec.16, Rule 7,
Part III, Rules of Procedure for Environmental Cases).
1. The respondent cannot be declared in default for failure
to file a return because a motion to declare the PROHIBITED PLEADINGS:
respondent in default is a prohibited motion
2. The court shall proceed to hear the petition ex parteThe 1. Counter-claim
respondent is not allowed to file a motion to dismiss the 2. Cross-claim
petition instead of filing a return because such is a 3. Third-party complaint
prohibited motion (Secs.9 and 10, Rule 7, Part III, Rules 4. Reply
of Procedure for Environmental Cases).

PROHIBITED MOTIONS:
SECS. 2-6
1. Motion to dismiss
2. Motion for extension of time to file return WHO MAY COMMENCE THE PETITION:
3. Motion for postponement
4. Motion for bill of particulars 1. Solicitor General
5. Motion to declare the respondent in default 2. Public prosecutor
3. Private person
INSTITUTION OF SEPARATE ACTIONS: The filing of a petition for
the issuance of the writ of kalikasan shall not preclude the filing of WHEN THE ACTION MUST BE COMMENCED (BY THE
separate civil, criminal or administrative actions (Sec. 17, Rule 7, GOVERNMENT): When directed by the President of the
Part III, Rules of Procedure for Environmental Cases). Philippines or when upon complaint or otherwise he has good
reason to believe that any case specified in the preceding section
can be established by proof, must commence such action, the
Solicitor General or a public prosecutor.
RULE 66
QUO WARRANTO WHEN THE ACTION MAY BE COMMENCED WITH THE
PERMISSION OF THE COURT:
SEC. 1
1. The Solicitor General or a public prosecutor may bring
QUO WARRANTO- an action against a person who usurps, such an action at the request and upon the relation of
intrudes into, or unlawfully holds or exercises a public office or another person;
even public franchise 2. But in such case the officer bringing it may first require
an indemnity for the expenses and costs of the action in
It is a writ which inquires “by what authority” one supports his an amount approved by and to be deposited in the court
claim. by the person at whose request and upon whose
relation the same is brought.
QUO WARRANTO vs. MANDAMUS: 3. The court shall direct that notice be sent to the
respondent so that he may be given the opportunity to
QUO WARRANTO MANDAMUS b be heard and oppose the application (Secs. 3 and 4)
Brought against the holder of Also available when one is
office, who is the person unlawfully excluded from the WHEN INDIVIDUAL MAY COMMENCE THE ACTION: A person
claiming the office as against use or enjoyment of an office. claiming to be entitled to a public office or position usurped or
petitioner, not the one who However, the suit is brought unlawfully held or exercised by another may bring an action
excludes the petitioner against the person who is therefor in his own name (Sec. 5). Mere assertion of a right to be
responsible for unlawfully appointed to the office is not sufficient regardless of the alleged in
excluding the petitioner from the title of respondent.
office
ALLEGATIONS WHEN THE PETITION IS FILED AGAINST A
CASE 18: X was appointed Election Registrar of Municipality A USURPER:
supposedly to replace Y who transferred to another municipality
without his consent and who refused to accept his aforesaid 1. Name of the person who claims to be entitled thereto, if
transfer, much less to vacate his position. X filed a petition for any
mandamus against Y but the RTC dismissed the petition 2. The petitioner’s right to the same
contending that quo warranto is the proper remedy. 3. Respondent is unlawfully in possession thereof (Sec. 6).
A: The facts do not show that Y has excluded X from office. He is SEC.7
the holder of the office and continues to do so believing he has
right to the same and continues to exercise functions of the office JURISDICTION AND VENUE:
as against the petitioner. The proper remedy of X is quo warranto
proceeding. a. Sections 1-6- SC, CA or RTC
b. When the action is commenced by the Solicitor General
A PETITION GENERALLY BROUGHT IN THE NAME OF THE (Sec. 7), the petition may be brought in the RTC of the
REPUBLIC; VERIFIED PETITION: However, in certain instances, the City of Manila, CA or the SC.
petition may be brought by an individual in his own name if he
claims to be entitled to a public office usurped or unlawfully held CASE 19: A group of businessmen formed an association calling
or exercised by another (Sec. 5). itself Cars Co. to distribute and sell cars in Cebu. It did not
incorporate itself. The Solicitor-General filed before the RTC in
AGAINST WHOM THE PETITION MAY BE BROUGHT: Manila a verified petition for quo warranto questioning and
seeking to stop operations of Cars Co. Cars Co. filed a motion to
1. Person- one who usurps, intrudes into, or unlawfully dismiss on the ground of improper venue claiming that its main
holds or exercises a public office, position or franchise office and operations are in Cebu and not in Manila.
2. Public officer- one does or suffers an act, which by the
provision of the law, constitutes a ground for the A: Cars Co. is not correct. While, as a rule, a petition for quo
forfeiture of his office warranto filed before the RTC should be brought in the place
3. Association- one which acts as a corporation within the where the respondent resides, this rull will not apply when the
Philippines without being legally incorporated or petition is filed by the Solicitor General who is given the
without lawful authority to do so prerogative to file the petition in the RTC of Manila.

QUO WARRANTO IN SANDIGANBAYAN: See Sec. 4 of 8249: JUDGMENT IN QUO WARRANTO PROCEEDINGS: The judgment
exclusive original jurisdiction over petitions for the issuance of the shall include the following:
writs of mandamus, prohibition, certiorari, habeas corpus,
injunctions, and other ancillary writs and processes in aid of its 1. The respondent shall be ousted and excluded from the
appellate jurisdiction and over petitions of similar nature, office
including quo warranto. 2. The petitioner or relator, as the case may be, shall
recover his costs
QUO WARRANTO UNDER THE OMNIBUS ELECTION CODE v. QUO 3. Such further judgment determining the respective rights
WARRANTO IN AN APPOINTIVE OFFICE: in and to the public office, position or franchise of all the
parties to the action as justice requires (Sec. 9).
QUO WARRANTO UNDER THE QUO WARRANTO IN AN
OMNIBUS ELECTION CODE APPOINTIVE OFFICE NOTE: Under Sec. 12, the court may render judgment for costs
Governed by the Election Law Governed by the provisions of against either the petitioner, the relator, or the respondent, or the
the Rules of Court person or persons claiming to be a corporation, or may apportion
Issue is the eligibility or The issue is the legality or the costs, as justice requires.
ineligibility of the person illegality of the occupancy of
elected or his loyalty or the office by virtue of an RIGHTS OF PERSONS ADJUDGED ENTITLED TO PUBLIC OFFICE: He
disloyalty to the republic appointment may exercise the following rights after taking his oath of office
The petition is filed within 10 It is filed within 1 year from the and executing the required bond:
days after the proclamation of time the cause of ouster, or the 1. Take upon himself the execution of the office
the results of the election right of the petitioner to hold 2. Immediately thereafter demand of the respondent all
office or position the books and papers in the respondent’s custody or
Brought in the COMELEC, RTC, Brought in the SC, CA, or RTC control appertaining to the office to which the judgment
MTC, as the case may be relates
The petitioner may be a voter The petitioner is the person
even if he is not entitled to the claiming to be entitled to the INDIRECT CONTEMPT: A disobedience to a lawful order of court is
office office a cause for indirect contempt. This contempt is punished after a
Where the person elected is The court determines who is charge in writing has been filed and an opportunity given to the
ineligible, the court may legally appointed, and can and respondent to be heard.
declare that candidate ought to declare the person
occupying the second placer as entitled to occupy the office PERIOD TO CLAIM DAMAGES: Within 1 year from the entry of
elected (Maquiling v. judgment establishing his right to the office in question
COMELEC, April 16, 2013)
QUO WARRANTO AGAINST CORPORATIONS: The same may be
QUO WARRANTO v. ELECTION PROTEST brought only against a de facto corporation, not a de jure
corporation.
QUO WARRANTO ELECTION PROTEST
DE FACTO CORPORATION- One which in good faith claims to be a
The cause of action is the The cause of action in an
corporation, being organized pursuant to a valid law, and assumes
eligibility of the candidate or electon protest is the
corporate powers because it was issued a certificate corporation.
lack of it, or his being disloyal irregularity in the conduct of
to the Republic the elections
The objective is to unseat the The objective is to oust the
ineligible from the office, but winding candidate from the
not to install the petitioner in office RULE 67
his place. EXPROPRIATION
Any voter may initiate the It can only be filed by a
action candidate who has duly filed aa SEC. 1
certificate of candidacy and has
been voted for in the preceding POWER OF EMINENT DOMAIN- The right to take or reassert
elections dominion over property within the state for public use or meet a
public exigency.
SECS. 8-12
Scope: It is plenary and as broad as the police power.
PERIOD FOR FILING: It is filed within 1 year after the cause of such
ouster, or the right of the petitioner to hold such office or Delegation to local subdivisions: Such power, may also be
position, arose delegated to local subdivisions and public utilities. Strictly
speaking, the power of ED delegated to LGUs is in reality not
CASE 20: If the principal of a public high school is illegally eminent but inferior since it must conform to the limits imposed
replaced by another, is it a requirement that before he can go to by the delegation, and thus, partakes only of a share in ED.
court on a quo warranto, he should first exhaust administrative
remedies? ESSENCE OF EXPROPRIATION: In Esse, it is forced private property
taking, the landowner being legally without a ghost of chance to
A: No. The action has to be brought within 1 year from the time defeat the case of the expropriating agency.
the cause of the ouster from office or the right to hold office,
arose. A quo warranto proceeding is one of the instances where PUBLIC USE CONCEPT- Includes any use that is of “usefulness,
exhaustion of administrative remedies is not required (Celestial v. utility or advantage or what is productive of general benefit of the
Cachopero). public”.

Requisites:
JUST COMPENSATION- the full and fair equivalent of the property 1. Expropriation proceedings are filed
sought to be expropriated. The measure is not the taker’s gain but 2. The local government makes a deposit with the proper
the owner’s loss. To be just, it must be fair not only to the owner court of at least 15% of the FMV of the property based
but also to the taker. on the current tax declaration of the property to be
expropriated at the time of the taking of the property
How to determine: The trial court should:
1. first ascertain the market value of the property, Q: Is expropriation limited only to the acquisition of title over
2. to which should be added consequential damages the property?
3. after deducting therefrom the consequential benefits
which may arise from expropriation A: No. The right-of-way easement resulting in a restriction or
limitation on property rights over the land traversed by
NOTE: If consequential benefits exceed the consequential transmission of lines also falls within the ambit of the term
damages, these items should be disregarded altogether as the “expropriation” (National Power Corp., v. Santa Loro Vda. De
basic value of the property should be paid in every case. Capin).
MARKET VALUE- The price that may be agreed upon by the STAGES IN THE EXPROPRITION PROCESS:
parties willing but not compelled to enter into a contract of sale.
FIRST STAGE SECOND STAGE
FACTORS TO BE CONSIDERED: Determination of the authority The determination of just
1. The cost of acquisition of the plaintiff to expropriate; compensation through the
2. Current value of like properties this includes an inquiry into the court-appointed
3. Actual and potential uses propriety of the commissioners (not more than
4. In particular of lands, their size, shape, location, and tax expropriation—its necessity 3 commissioners).
declarations thereon and the public purpose.
5. Nature and character of the land It ends in:
a. the issuance of an
NOTE: If the compensation is not paid when the property is taken, order of
but is postponed to a later date, the interest awarded is actually expropriation if the
part of just compensation which takes into account such delay. courts find for
plaintiff, or
Republic v. Rural Bank of Kabacan, Inc.: There is no legal basis to b. in the dismissal of the
separate the value of the excavated soil from that of the complaint if it finds
expropriated properties, contrary to what the trial court did. The otherwise
soil has no value separate from that of the land expropriated land.
Just compensation ordinary refers to the value to the land to NOTE: The process is not complete until payment of just
compensate for what the owner actually loses. compensation.
GOVERNMENT HAS NO UNRESTRICTED TITLE TO THE LAND MATTERS TO BE ALLEGED IN A COMPLAINT FOR
EXPROPRIATED: The taking of private land in expropriation EXPROPRIATION:
proceedings is always conditioned on its continued devotion to its
public purpose. Once the purpose is terminated or peremptorily 1. State with certainty the right of the plaintiff to
abandoned, then the former owner, if he so desires, may seek its expropriate and the purpose thereof
reversion, subject of course to the return at the very least, of the 2. Describe the real or personal property sought to be
just compensation received. expropriated
3. Join as defendants all persons owning or claiming to
EXERCISE OF EMINEND DOMAIN BY LGUs (Sec. 19, RA 7160): own, or occupying, any part of the property or interest
Requisites: therein, showing, so far as practicable, the interest of
each defendant. If the plaintiff cannot identify the real
1. An ordinance is enacted by a local legislative council to owners with accuracy, averment to that effect shall be
exercise the power of ED, or pursue expropriation made in the complaint.
proceedings over a particular private property through
its chief executive SERVICE OF SUMMONS; WHO MAY BE DEFENDANTS: The
2. The power of ED is exercised for public use, purpose or defendants are not limited to the owners of the property
welfare, or for the benefit of the poor and the landless condemned. They include all persons owning, occupying, or
3. There is payment of just compensation, as required claiming to own the property.
under the Constitution, and other pertinent laws
4. A valid and definite offer has been previously made to If a person claiming interest in the land sought to be condemned
the owner of the property sought to be expropriated is not made a party, he is given the right to intervene and lay claim
but said offer was not accepted. to the compensation.
EXERCISE OF ED THROUGH AN ORDINANCE: An LGU cannot R.A. 8974: The law governing expropriation of private property for
authorize an expropriation of private property through a mere national government infrastructure projects, the Government
resolution of its lawmaking body. commences expropriation proceedings through the filing of a
complaint. There is no need for legislative authorization before
HOW HE LGU MAY IMMEDIATELY TAKE POSSESSION OF THE the Government may proceed with a particular exercise of ED.
PROPERTY:
COURT WITH JURISDICTION:

complaint, or at any time after the filing of the complaint after
RTC—it is an action incapable of pecuniary estimation regardless due notice to the defendant.
of the value of the subject property. The primary consideration is
whether the government or any of its instrumentalities had Under sec.2, it is not the mere filing of the complaint which
complied with the requisites for the taking of the private property. entitles the expropriator to take or enter upon the possession of
the real property. Accordingly, he plaintiff shall have the right to
Although the value of the property to be expropriated is take or enter upon the possession of the real property involved if
estimated in monetary terms, this is merely incidental to the he deposits with the authorized government depositary an
expropriation suit because the amount of compensation is only amount equivalent to the assessed value of the property for
determined after the court is satisfied with the propriety of the purposes of taxation to be held by such bank subject to the orders
expropriation. of the court.
SEC. 3 If personal property is involved, its value shall be provisionally

ascertained and the amount to be deposited shall be promptly
DEFENSES AND OBJECTIONS IN THE ANSWER: Defendant shall fixed by the court after the value of the property is provisionally
serve an answer if he has an objection to the (a) filing of the determined.
complaint; (b) allegations in the complaint; or (c) objection or
defense to the taking of the property. Such deposit shall be in money, unless in lieu thereof the court
authorizes the deposit of a certificate of deposit of a government
The answer shall specifically designate or identify the property in bank of the Republic of the Philippines payable on demand to the
which he claims to have an interest, state the nature and extent of authorized government depositary.
the interest claimed, and adduce all his objections and defenses to
the taking of his property because those not adduced are deemed Notice is required to be sent to the defendant before the plaintiff
waived (Sec 8, Rule 67). shall have the right to take or enter.
REMEDY WHEN SOME DEFENSES ARE OMITTED: The remedy is to EFFECT OF MAKING THE REQUIRED DEPOSITS: After such deposit
seek to leave to amend the answer within 10 days from the filing is made the court shall order the sheriff or other proper officer to
thereof. Leave is required because of Sec. 3 of Rule 67 provides forthwith place the plaintiff in possession of the property involved
that and promptly submit a report thereof to the court with service of
“the court, in the interest of justice, may permit amendments to copies to the parties (Sec. 2).
the answer to be made not later than ten (10) days from the filing
thereof.” Sec. 2 does not require prior hearing before the immediate
possession can be granted to the plaintiff. The provision discloses
Unlike in ordinary civil actions, in expropriation proceedings, the that notice to the defendant and making of the required deposit
permission of the court is always required before the answer is are what matters.
amended for the purpose of incorporating defenses and
objections not so alleged. PURPOSE OF THE DEPOSIT: It serves as an advanced payment to
the owner of the property should the court decide in favor of the
COUNTERCLAIMS, CROSS-CLAIMS OR THIRD-PARTY plaintiff. Otherwise, it shall serve as an indemnity against damage
COMPLAINTS: No counterclaim, cross-claim or third-party which the owner may have sustained.
complaint shall be alleged or allowed in the answer or any
subsequent pleading. ENTRY UPON THE PROPERTY OR POSSESSION UNDER R.A. 8974;
IMMEDIATE PAYMENT:
WAIVER OF DEFENSES OR FAILURE TO ANSWER; EFFECT: This will
not totally lose his standing in court unlike in an ordinary civil R.A 8974 or An act to facilitate Rule 67
action who cannot take part in the trial if he is declared in default the acquisition of right-of-way,
for failure to file his answer. site or location for national
government infrastructure
Unlike in ordinary civil cases, in expropriation proceedings, projects and for other
whether or not a defendant has previously appeared or answered, purposes
he may present evidence as to the amount of the compensation Government is required to Government is required only to
to be paid for his property, and share in the distribution of the make immediate payment to make initial deposit with an
award. the property owner upon the authorized government
filing of the complaint to be depositary.
WHEN ANSWER IS NOT REQUIRED: Answer is not required if the entitled to the writ of
defendant has no objection or defense to the action or to the possession.
taking of his property. Instead he may file and serve (a) a notice of Provides a standard for initial The initial deposit shall be
appearance and (b) a manifestation to that effect, specifically compensation which is the equivalent to the assessed
designating or identifying the property in which he claims to be market value of the property as value of the property for
interested, within the time stated in the summons. Thereafter, he stated in the tax declaration or purposes of taxation
shall be entitled to notice of all proceedings affecting the same. the current zonal valuation of
the BIR, whichever is higher,
SEC. 2 and the value o the
improvements and/for
ENTRY UPON THE PROPERTY OR POSSESSION THEREOF; DEPOSIT structures using the
AND NOTICE: Public good allows the expropriator to take or enter replacement cost method.
upon the possession of the real property upon the filing of the

NEW SYSTEM OF IMMEDIATE PAYMENT UNDER R.A 8974; ascertainment of the compensation to be paid to the owner of the
APPLICATION OF THE RULE: R.A. 8974 applies in instances when property.
the national government expropriates property “for national
government infrastructure projects. Thus, if expropriation is Upon the rendition of the order of expropriation, the court shall
engaged in by the national government for purposes other than appoint not more than three (3) competent and disinterested
national infrastructure projects, the assessed value and the persons as commissioners to ascertain and report to the court the
deposit mode prescribed in Rule 67 will apply. just compensation for the property sought to be taken. Objections
to the appointment of any of the commissioners shall be filed with
DEPOSIT UNDER THE LGC: Sec. 19 of the LGC provides that the the court within ten (10) days from service, and shall be resolved
LGU may immediately take possession of the property upon the within thirty (30) days after all the commissioners shall have
filing of the expropriation proceedings and making deposit with received copies of the objections (Sec. 5).
the proper court of at least 15% of the FMV of the property based
on the current tax declaration of the property to be expropriated. The fees of the commissioners shall be taxed as a part of the costs
of the proceedings. All costs, except those of rival claimants
SEC. 4 litigating their claims, shall be paid by the plaintiff (Sec.12).
ORDER OF EXPROPRIATION: The court may issue an order of The appointment of commissioners to ascertain just
expropriation (or order of condemnation) declaring that the compensation for the property is a mandatory requirement in
plaintiff has a lawful right to take the property sought to be expropriation cases. This is to allow the parties to present
expropriated, for the public use or purpose described in the evidence on the issue of just compensation.
complaint, upon the payment of just compensation to be
determined as of the date of the taking of the property or the The findings of the commissioners may be disregarded and the
filing of the complaint, whichever came first. trial court may substitute its own estimate value:
a. if the commissioners have applied illegal principles to
The order shall issue: the evidence submitted to them;
b. where they have disregarded a clear preponderance of
a. If the objections to and the defenses against the right of evidence, or
the plaintiff to expropriate the property are overruled, c. where the amount allowed is either grossly inadequate
or or excessive.
b. When no party appears to defend as required by this
Rule. The absence of trial or hearing constitutes a violation of the right
of due process.
NO DISMISSAL BY PLAINTIFF UPON RENDITION OF THE ORDER
OF EXPROPRIATION: After the rendition of such an order, the Evidence may be introduced by either party before the
plaintiff shall not be permitted to dismiss or discontinue the commissioners and argue their case either themselves or by
proceeding except on such terms as the court deems just and counsel.
equitable. The commissioners shall assess the consequential damages to the
property not taken and deduct from such consequential damages
APPEAL FROM THE ORDER OF EXPROPRIATION: A final order the consequential benefits to be derived by the owner from the
sustaining the right to expropriate the property may be appealed public use or purpose of the property taken, but in no case shall
by any party aggrieved thereby. Such appeal, however, shall not the consequential benefits assessed exceed the consequential
prevent the court from determining the just compensation to be damages assessed, or the owner be deprived of the actual value
paid. of his property so taken (Sec.6).
SEC. 11 Commissioners shall make their report within 60 days from date
they were notified of their appointment. This period may be
MATTERS NOT AFFECTED BY APPEAL: The second step in extended in the discretion of the court. Upon the filing of such
expropriation is the determination of just compensation. This will report, the clerk of the court shall serve copies thereof on all
not be affected by the appeal (Sec. 4). interested parties, with notice that they are allowed ten (10) days
within which to file objections to the findings of the report, if they
The right of the plaintiff to enter upon the property of the so desire.
defendant and appropriate the same for public use or purpose
shall not be delayed by an appeal from the judgment (Sec. 11). The measure to be borne in mind is not the taker’s gain but the
owner’s loss since what is involved is the takeover of private
RULE IF THE TRIAL COURT’S DECISION IS REVERSED ON APPEAL: property under the State’s coercive power. State must ensure that
But if the appellate court determines that plaintiff has no right of the individual whose property is taken is not shortchanged and
expropriation, judgment shall be rendered ordering the Regional thus must carry the burden of showing that the just compensation
Trial Court to forthwith enforce the restoration to the defendant under the Bill of Rights is satisfied.
of the possession of the property, and to determine the damages
which the defendant sustained and may recover by reason of the JUST COMPENSATION: The court may, after hearing, accept the
possession taken by the plaintiff. report and render judgment in accordance therewith, or, for
cause shown, it may recommit the same to the commissioners for
SEC. 5-9; 12 further report of facts, or it may set aside the report and appoint
new commissioners; or it may accept the report in part and reject
ASCERTAINMENT OF JUST COMPENSATION; HEARING it in part and it may make such order or render such judgment as
MANDATORY: Order of expropriation is concerned with the shall secure to the plaintiff the property essential to the exercise
determination of the right of expropriation and propriety of the of his right of expropriation, and to the defendant just
issue of the public use of purpose. It does not contain the compensation for the property so taken. The court in deciding

shall always consider the interest of all the parties to the case
(Sec. 8). If the defendant and his counsel absent themselves from the
court, or decline to receive the amount tendered, the same shall
The determination of just compensation is a function addressed to be ordered to be deposited in court and such deposit shall have
the discretion of the courts and may not be usurped by any other the same effect as actual payment thereof to the defendant or the
branch or official of the government. person ultimately adjudged entitled thereto (Sec. 10).
APPEAL FROM THE JUDGMENT AS COMPENSATION; EFFECT: PAYMENT IN CASE OF UNCERTAIN OWNERSHIP; CONFLICTING
CLAIMS: If the ownership of the property taken is uncertain, or
See the discussions under Sec.11. there are conflicting claims to any part thereof, the court may
order any sum or sums awarded as compensation for the property
If the judgment is affirmed on appeal, the costs of appeal shall be to be paid to the court for the benefit of the person adjudged in
paid, not by the plaintiff, but by the owner of the property who the same proceeding to be entitled thereto (Sec. 9).
appealed the judgment.
SEC. 10
WHEN TO ASCERTAIN JUST COMPENSATION: Sec. 4 provides that
just compensation shall be determined as of the date of the taking RIGHT OF PLAINTIFF AFTER JUDGMEBT AND PAYMENT: The
of the property or the filing of the complaint, whichever came plaintiff shall have the right:
first.
a. to enter upon the property expropriated and;
Where the taking preceded the filing of the complaint for b. to appropriate it for the public use or purpose defined in
expropriation the judgment, or to retain it should he have taken
immediate possession thereof under the provisions of
Where the taking preceded the filing of the complaint for section 2 hereof.
expropriation, compensation must be determined at the time the
expropriating authority took possession thereof and not as of the RULE IF PAYMENT IS REFUSED: If the defendant and his counsel
institution of the proceedings. absent themselves from the court, or decline to receive the
amount tendered, the same shall be ordered to be deposited in
Republic v. Sarabia court and such deposit shall have the same effect as actual
payment thereof to the defendant or the person ultimately
The value of the property should be fixed as of the date when it adjudged entitled thereto.
was taken and not the date of the filing of the proceedings. For
where property is taken ahead of the filing of the condemnation NON-PAYMENT OF JUST COMPENSATION; EFFECT: The non-
proceedings, the value thereof may be enhanced by the public payment of just compensation does not entitle the private
purpose for which it is taken; the entry by the plaintiff upon the landowner to recover possession of the expropriated lots,
property may have depreciated its value thereby; or, there may however, in cases where the government failed to pay just
have been a natural increase in the value of the property from the compensation within five (5) years from the finality of judgment in
time it is taken to the time the complaint is filed, due to general the expropriation proceedings, the owners concerned shall have
economic conditions. The owner of private property should be the right to recover possession of their property. This is in
compensated only for what he actually loses; it is not intended consonance with the principle that ‘the government cannot keep
that his compensation shall extend beyond his loss or injury. And the property and dishonor the judgment.’ To be sure, the five-year
what he loses is only the actual value of his property at the time it period limitation will encourage the government to pay just
is taken. This is the only way the compensation to be paid can be compensation punctually. This is in keeping with justice and
truly just; i.e., “just” not only to the individual whose property is equity.
taken, “but to the public, which is to pay for it” xxx.
SEC. 13
Where the filing of the complaint for expropriation preceded the
plaintiff’s entry into the property, compensation is to be RECORDING OF THE JUDGMENT AND ITS EFFECT: The judgment
ascertained as of the time of the filing of the complaint. shall state definitely the particular property or interest
expropriated (Sec. 13).
NPC v. Diato-Bernal (2010)
It shall also state the nature of the public use or purpose for which
It is settled that just compensation is to be ascertained as of the it is expropriated. When real estate is expropriated, a certified
time of the taking, which usually coincides with the copy of such judgment shall be recorded in the registry of deeds
commencement of the expropriation proceedings. Where the of the place in which the property is situated, and its effect shall
institution of the action precedes entry into the property, the just be to vest in the plaintiff the title to the real estate so described
compensation is to be ascertained as of the time of the filing of for such public use or purpose.
the complaint.
SEC. 14
Under Sec. 19 of LGC, the amount to be paid for expropriation
shall be determined based on the FMV at the time of the taking of
the property.
PAYMENT OF JUST COMPENSATION:
Payment shall consist of the amount fixed in the judgment

including legal interest from the taking of possession of the
property.

b. to foreclose the mortgage, if one has been constituted.
RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE An election of the first bars recourse to the second, otherwise,
there would be multiplicity of suits in which the debtor would be
SEC. 1-2 tossed from one venue to another depending on the location of
the mortgaged properties and residences of the parties.
NATURE OF REM: It is an accessory contract executed in favor of
the creditor as security for the principal obligation which is usually Mere filing of the application for foreclosure before the Office of
a simple loan or mutuum. the sheriff of the province where the sale is made is deemed to be
an election of the extra-judicial foreclosure.
It creates a real right which follows the property whoever the
owner may be after the constitution of the mortgage. PACTUM COMMISSORIUM: It is a stipulation empowering the
creditor to appropriate the thing given as a guaranty for the
Article 2126. The mortgage directly and immediately subjects the fulfillment of the obligation in the event the obligor fails to live up
property upon which it is imposed, whoever the possessor may to his undertakings, without further formality such as foreclosure
be, to the fulfillment of the obligation for whose security it was proceedings and public sale.
constituted. (1876)
Elements:
The mortgagor may not be debtor and the latter need not be the
mortgagor: a. there should be a property mortgaged by way of
security for the payment of the principal obligation; and
ART. 2085: b. there should be a stipulation for automatic
XXX appropriation by the creditor of the thing mortgaged in
Third persons who are not parties to the principal obligation may case of non-payment of the principal obligation within
secure the latter by pledging or mortgaging their own property. the stipulated period.
This is also known as accommodation mortgagors who are liable Art. 2208 of NCC prohibits this.
only up to the loan value of the mortgaged property and not the
entire loan. COURT WITH JURISDCTION:
There can be several mortgages over the same property. They do 1. Traditionally, an action to foreclose a mortgage has
not have effect on the ownership of the property and are treated been considered to have the characteristics of an action
merely as liens, the first one being normally treated as more that is incapable of pecuniary estimation since the issue
superior over subsequent encumbrances. to be resolved is whether there is legal basis for
foreclosure. From this perspective, the RTC has
The failure to register the contract does not affect its validity jurisdiction over the case.
between the parties. It is only necessary for the purpose of 2. It may also ne rightly considered as an action involving
binding third persons. interest in real property. Hence, the determination of
jurisdiction shall be made by inquiring into the assessed
DRAGNET OR BLANKET MORTGAGE CLAUSE: This is a provision in value of the property. From this point of view, exclusive
the mortgage contract constituting the mortgage as security for original jurisdiction would fall either in the MTC or the
past, present, and future indebtedness. RTC depending on the assessed value of the property
involved.
A "dragnet clause" operates as a convenience and 3. For purposes of venue, an action for foreclosure of
accommodation to the borrowers as it makes available additional mortgage of real property is an action affecting interest
funds without their having to execute additional security in real property and is a real action.
documents, thereby saving time, travel, loan closing costs, costs of
extra legal services, recording fees, et cetera.26 While a real SEVERAL PARCELS OF LAND LOCATED IN DIFFERENT PROVINCES
estate mortgage may exceptionally secure future loans or COVERED BY A SINGLE MORTGAGE CONTRACT: The action may
advancements, these future debts must be sufficiently described be filed in any of the provinces where any of the parcels of land is
in the mortgage contract. An obligation is not secured by a located.
mortgage unless it comes fairly within the terms of the mortgage
contract. EFFECT OF DEATH OF THE MORTGAGOR/DEBTOR: The death of
the mortgagor does not extinguish his debt.
WHEN FORECLOSURE IS PROPER; DEMAND TO PAY: Foreclosure
presupposes that the debtor failed to pay. Default must be first When the mortgagor dies, the following remedies may be availed
established. of:
GR: Default occurs after a valid demand. 1. He may abandon the security and prosecute his claim in
the manner provided for under Rule 86, and share in the
XPN: Parties stipulated that demand is not necessary for default general distribution of assets of the estate
to arise. 2. He may foreclose the mortgage by action in court,
making the executor or administrator a party defendant,
ALTERNATIVE REMEDIES OF THE CR IN CASE OF DEFAULT: and if there be a deficiency judgment after the sale of
the mortgaged, he may claim the deficiency in the
a. to file an action for collection of a sum of money; and manner provided by Rule 86
NOTE: No final judgment in the collection suit is 3. He may rely upon the mortgage or other security alone,
required for the rule on waiver to apply. and foreclose the same at any time before it is barred by

prescription, and in that event, he shall not be admitted The period in this rule is not merely procedural requirement; it is a
as a creditor, without the right to share in the substantive right granted to the mortgage debtor as the last
distribution of the other assets of the estate (Sec. 7, Rule opportunity to pay the debt and save his mortgaged property
86) from final disposition at foreclosure sale.
SPLITTING A SINGLE CAUSE OF ACTION: For non-payment of a EQUITY OF REDEMPTION- the right to extinguish the mortgage
note secured by mortgage, the creditor has a single cause of and retain ownership of the property by paying the debt. The
action against the debtor. The creditor in his action may make 2 payment may be made even after the foreclosure sale provided it
demands, the payment of debt and the foreclosure of the is made before the sale is confirmed by the court.
mortgage. But both demands arise from the same cause, the non-
payment of debt, and for that reason, they constitute a single After the sale of the mortgaged property and before its
cause of action. Though the debt and the mortgage constitute confirmation, the court may still grant the judgment debtor the
separate agreements, the latter is subsidiary to the former, and opportunity to pay the amount of the judgment.
both refer to one and the same obligation.
90-day period- the mortgagor’s equity of redemption whi8ch may
The plaintiff cannot split up his single cause of action by filing a be exercised even beyond the 90-day period and even after the
complaint for payment of the debt, and thereafter another foreclosure itself, provided it be before the order of confirmation
complaint for the foreclosure of the mortgage. If he does so, the of the sale. After such order of confirmation, no redemption can
filing of the first complaint will bar the subsequent complaint. be effected any longer.
MODES OF FORECLOSURE OF REAL ESTATE; JUDICIAL SUBSEQUENT LIEN HOLDERS NOT IMPLEADED AS PARTIES: The
FORECLOSURE AND EXTRA-JUDICIAL FORECLOSURE: judgment in favor of the foreclosing mortgagee does not bind the
other lien holders. In this case, their equity of redemption remains
1. Judicial foreclosure pursuant to Rule 68 unforecloseed.
2. Extra-judicial foreclosure pursuant to Act 3135 as
amended by Act 4118 RIGHT OF REDEMPTION- Right granted to a mortgagor to
reacquire the property even after the confirmation of the sale and
the registration of the certificate of sale.
EXTRA-JUDICIAL FORECLOSURE- the mode to be used if there is a
special power inserted in or attached to the real estate mortgage GR: No right of redemption in judicial foreclosure of mortgage.
contract allowing an extra-judicial foreclosure. The right exists only in extra-judicial foreclosures where there is
always a right of redemption within 1 year from the date of sale
ALLEGATIONS IN A COMPLAINT FOR FORECLOSURE: but interpreted to mean 1 year from the registration of the sale.
1. date and due execution of the mortgage; XPN: There is right of redemption in a judicial foreclosure if it is in
2. its assignments, if any; favor of banks as mortgagees, whether the foreclosure be judicial
3. the names and residences of the mortgagor and the or extra-judicial. (par. 1 of Sec. 47 of the General Banking Law of
mortgagee; 2000)
4. a description of the mortgaged property;
5. a statement of the date of the note or other The period of redemption in extra-judicial foreclosures is
nd
documentary evidence of the obligation secured by the shortened by the General Banking Act of 2000 (Sec. 47, 2
mortgage, paragraph) when the mortgagor is juridical person. The period of
6. the amount claimed to be unpaid thereon; and redemption is “until but not after” the registration of the
7. the names and residences of all persons having or certificate of sale with the Register of Deeds, which in no case
claiming an interest in the property subordinate in right shall be more than 3 months after the foreclosure, whichever is
to that of the holder of the mortgage earlier.
PROCEDURE: A foreclosure suit will proceed like an ordinary civil CASE 21: AB mortgaged his real property to CD. AB failed to pay
action insofar as they are not inconsistent with Rule 68 his obligation and CD filed an action for foreclosure of mortgage.
The TC granted the prayer for foreclosure. AB was ordered to
JUDGMENT ON FORECLOSURE; PAYMENT OR SALE: pay CD not later than 120 days from the date of receipt of the
Order. AB received the order on Aug. 10, 1999. On Dec. 20, 1999,
1. Ascertainment of the amount due to the plaintiff upon AB tendered the full payment but CD refused on the ground that
the mortgage debt or obligation, including interest and it was already beyond the 120-day period granted by the court.
other charges as approved by the court, and costs, and
2. judgment for the sum so found due and order that the A: The period for payment is reckoned from the date of entry of
same be paid to the court or to the judgment obligee judgment, not from the receipt of the Order of the court. Since AB
within a period of not less than ninety (90) days nor did not appeal, the order became final on August 25, 1999 or 15
more than one hundred twenty (120) days from the days from Aug. 10. The date of finality of the judgment or final
entry of judgment, and order is also the date of its entry. The 120-day period would have
3. admonition that in default of such payment, the ended on Dec. 24, 1999. The tender of payment by AB on Dec. 20,
property shall be sold at public auction to satisfy the 1999 is well-within the period.
judgment (Sec. 2, Rule 68)
SECS. 3-4
NOTE: The judgment of the court on the above matters is
considered as a final adjudication of the case. Hence, it is SALE OF THE MORTGAGED PROPERTY; EFFECT: If the mortgagor
appealable. fails to pay the sum due within the 90-120 days from the entry of
judgment, it would be a good practice for the mortgagee to file a

motion for the sale of the mortgaged property because under the them, then to the mortgagor or his duly authorized agent, or to
Rules of Court, the court shall order the sale of the property only the person entitled to it
“upon motion” (Sec. 3)
SEC. 5, 7, 8
The motion for the sale of the mortgaged property is non-litigable
and may be made ex parte (Government of Philippine Islands v. De REGISTRATION OF THE SALE: A certified copy of the final order of
Las Lajigas). the court confirming the sale shall be registered in the registry of
deeds. If no right of redemption exists, the certificate of title in
OBJECT OF NOTICE OF SALE: To inform the public of the nature the name of the mortgagor shall be cancelled, and a new one
and condition of the property to be sold, and of the time, place, issued in the name of the purchaser.
and terms of the sale. Notices are given for the purpose of
securing bidders and to prevent a sacrifice of the property. WHEN RIGHT OF REDEMPTION EXISTS: The certificate of and the
order confirming the sale shall be registered and a brief
NOTE: Immaterial errors and mistakes will not affect the memoranda thereof shall be made by the register of deeds upon
sufficiency of the notice. Only substantial errors will invalidate it. the certificate of title. The certificate of title in the name of the
mortgagor, however, shall not be cancelled. In the event the
CONFIRMATION OF SALE: Unlike the motion for the sale of the property is redeemed, the deed of redemption shall be registered
mortgaged property which is done ex parte, the motion for the with the registry of deeds, and a brief memorandum thereof shall
confirmation of the sale requires a notice and a hearing. be made by the registrar of deeds on said certificate of title.
In the hearing, the mortgagor will be allowed the opportunity to IF THE PROPERTY IS NOT REDEEMED: If the property is not
show cause why the sale should not be confirmed. redeemed, the final deed of sale executed by the sheriff in favor
of the purchaser at the foreclosure sale shall be registered with
EFFEC OF NO NOTICE: If the mortgagor was not notified of the the registry of deeds; whereupon the certificate of title in the
hearing, the subsequent confirmation of the sale is vitiated and name of the mortgagor shall be cancelled and a new one issued in
consequently it is as if no confirmation ever took place. the name of the purchaser
NOTE: After the hearing and the court finds valid grounds for its SEC. 6
confirmation, it sjall issue an order confirming the foreclosure
sale. This order confirming the sale is a judgment in itself and is DEFICIENCY OF JUDGMENT; WHEN THERE IS NO DEFICIENCY
deemed a final adjudication on the propriety and merits of the JUDGMENT: If there is a balance due to the plaintiff after applying
sale. It is hence appealable. the proceeds of the sale, the court, upon motion, shall render
judgment against the defendant for any such balance. Execution
EFFECT OF CONFIRMATION OF THE SALE: The confirmation of the may issue immediately if the balance is all due at the time of the
sale shall operate to divest the rights in the property of all the rendition of judgment.
parties to the action and vest their rights in the purchaser, subject
to such rights of redemption as may be allowed by law. NOTE: Deficiency judgment is in itself a judgment, hence, also
appealable.
EFFECT OF FINALITY OF THE CONFIRMATION OF THE SALE:
NO INDEPENDENT ACTION NEED BE FILED TO RECOVER THE
1. The order of confirmation is appealable DEFICIENCY: The deficiency judgment shall be rendered upon the
2. The purchaser at the auction sale or last redemptioner, motion of the mortgagee.
if any, shall be entitled to the possession of the property
and he may secure a writ of possession, upon motion, ACCOMODATION MORTGAGOR: The mortgagor who is not the
from the court which ordered the foreclosure, unless a debtor and who merely executed the mortgage to secure the
third party is actually holding the same adversely to the principal debtor’s obligation, is not liable for the deficiency unless
judgment obligor. he assumed liability for the same in the contract.
NOTE: The writ of possession shall be issued upon motion. The NOTE: A deficiency judgment is by nature, in personam, and
writ of possession is a means of recognizing and enforcing rights jurisdiction over the person is mandatory.
of the purchaser emphasized under Sec. 3 which provides that the
confirmation of the sale operates to divest all parties to the action RULE IN CASE OF SURPLUS INSTEAD OF DEFICIENCY: It is the duty
of their respective rights and vest them in the purchaser. of the mortgagee to return to the mortgagor any surplus in the
selling price during the foreclosure sale
The law expressly authorizes the purchaser to petition for a writ of
possession by filing an ex parte motion. The issuance, however, of JUDICIAL FORECLOSURE EXTRA-JUDICIAL FORECLOSURE
the writ of possession does not bar a separate case for annulment Governed by the ROC Governed by Act 3135
of the mortgage and foreclosure sale. Involves the filing of an Does not require the filing of an
independent action action
DISPOSITION OF THE PROCEEDS OF THE FORECLOSURE SALE: The There is equity of redemption There is right of redemption in
amount realized from the foreclosure sale of the mortgaged in a judicial foreclosure and no extrajudicial foreclosure of
property shall, after deducting the costs of the sale, be paid to the right of redemption except mortgage
person foreclosing the mortgage, and when there shall be any when the mortgagee is a
balance or residue, after paying off the mortgage debt due, the banking institution
same shall be paid to junior encumbrancers in the order of their There could be deficiency of There can be no judgment for a
priority, to be ascertained by the court, or if there be no such judgment rendered by the deficiency in an extra-judicial
encumbrancers or there be a balance or residue after payment to court in the same proceeding foreclosure because there is no
judicial proceeding, although

recovery of the deficiency is 1. By agreement of the parties
allowed 2. By judicial proceedings when the parties cannot reach
Recovery of deficiency can be The recovery of the deficiency an agreement
done by mere motion for a is through an independent
deficiency judgment action, STAGES/PHASES IN PARTITION:
1. The first phase of partition and/or accounting suit is

taken up with the determination of whether or not a co-
RULE 69 ownership in fact exists, and a partition is proper. This
PARTITION phase ends with a declaration that the plaintiff is not
entitled to have a partition either because a co-
SECS. 1, 2, 12, 13 ownership does not exist or partition is legally
prohibited. It may also end otherwise.
PARTITION- the separation, division, and assignment of a thing 2. The second phase commences when it appears that the
held in common by those to whom it may belong parties are unable to agree upon the partition directed
by the court. In that event, partition shall be done for
Partition presupposes the existence of co-ownership over a the parties by the court with the assistance of not more
property between 2 or more persons. A division of property than 3 commissioners. This phase may also deal with the
cannot be ordered by the court unless the existence of co- rendition of the accounting itself and its approval by the
ownership is first established. court after the parties have been accorded with the
opportunity to be heard thereon, and an award for the
GR: No co-owner shall be obliged to remain in the co-ownership. recovery by the party thereto entitled of their just share
He may demand, at anytime, the partition of the property owned in the rents and profits
in common, insofar as his share is concerned.
MULTIPLE APPEALS: The action for partition is subject to multiple
XPNs: appeals and would require a record on appeal. It is allowed in:
a. Special proceedings
1. There is an agreement among the co-owners to keep b. Action for recovery of property with accounting
the property undivided for a certain period of time but c. Action for partition of property with accounting
not exceeding 10 years. This term may be extended by a d. Special civil action of eminent domain
new agreement e. Special civil action of foreclosure of mortgage
2. When partition is prohibited by the donor or testator for
a period not exceeding 20 years Ratio for multiple appeal: To enable the rest of the case to
3. When partition is prohibited by law proceed in the event that a separate and distinct issue is resolved
4. When the property is not subject to a physical division by the court and held to be final.
and to do so would render it unserviceable for the use
for which it is intended WHO MAY FILE ACTION FOR PARTITION: By one who has a right
5. When the condition imposed upon voluntary heirs to compel the partition of real estate
before they can demand partition has not yet been
fulfilled The defendants are all the co-owners. All the co-owners are
indispensable parties.
PARTITION IS NOT CONVEYANCE: Partition does not result in
change in ownership. It is not a transfer of property from one to MATTERS TO BE ALLEGED IN THE COMPLAINT:
the other, but rather, it is a confirmation or ratification of title,
right of property that an heir is renouncing in favor of another heir 1. nature and extent of his title and
who accepts and receives the inheritance. It is merely a 2. an adequate description of the real estate of which
designation and segregation of that which belongs to each heir. partition is demanded and
3. joining as defendants all other persons interested in the
PRESCRIPTION OF ACTION: Prescription does not run in favor of a property
co-owner or co-heir against his co-owner or co-heirs as long as 4. Demand for an accounting of the rents, profits, and
there is a recognition of the co-ownership, expressly or impliedly. other income from the property which he may be
entitled to as his share. Otherwise, these will be barred
A co-owner may however acquire ownership thereof by if not set up in the same action pursuant to the rule
prescription where there exists a clear repudiation of the co- against splitting a cause of action
ownership and the co-owners are apprised of the claim of adverse
and exclusive ownership. Q: When the allegations in the complaint allege that the plaintiff
asserts exclusive ownership of the property sought to be
COURT WITH JURISDICTION: The primary issue to be resolved is partitioned, what is really the nature of the action?
whether the plaintiff has a right to partition, an issue incapable of
pecuniary estimation. The action may be cognizable by the RTC. A: It is an action for the recovery of property.
However, an action for partition of real property also involves ORDER OF PARTITION: If after the trial the court finds that the
“interest in real property”. Justice Feria also believes that the plaintiff has the right thereto, it shall order the partition of the
action may be filed either in the MTC or the RTC depending on the real estate among all the parties in interest. Thereupon the parties
assessed value of the property, whether personal or real. may, if they are able to agree, make the partition among
themselves by proper instruments of conveyance, and the court
MODES OF PARTITION: shall confirm the partition so agreed upon by all the parties, and
such partition, together with the order of the court confirming the

same, shall be recorded in the registry of deeds of the place in party making the payment, and the effect of the
which the property is situated (Sec. 2). judgment shall be to vest in the party making the
payment the whole of the real estate free from any
NOTE: A final order decreeing: interest on the part of the other parties to the action.
a. Partition, and b. If the property is sold and the sale confirmed by the
b. Accounting court, the judgment shall state the name of the
May be appealed by any party aggrieved thereby purchaser or purchasers and a definite description of
the parcels of real estate sold to each purchaser, and
PARTITION BY AGREEMENT: There always exists the possibility the effect of the judgment shall be to vest the real
that the co-owners are unable to agree upon the partition. If they estate in the purchaser or purchasers making the
cannot partition the property among themselves, the next stage in payment or payments, free from the claims of any of the
the action is the appointment of commissioners. parties to the action. A certified copy of the judgment
shall in either case be recorded in the registry of deeds
SECS. 3-7 of the place in which the real estate is situated, and the
expenses of such recording shall be taxed as part of the
COURT-APPOINTED COMMISSIONERS: If the parties are unable to costs of the action.
agree upon the partition, the court shall appoint not more than
three (3) competent and disinterested persons as commissioners RULE WHEN THEER ARE EXPENSES TO BE PAID FROM THE
to make the partition, commanding them to set off to the plaintiff ESTATE: In such case, partition is inappropriate, the determination
and to each party in interest such part and proportion of the of the expenses like those related to the deceased’s final illness
property as the court shall direct. and burial, which are chargeable to the estate, cannot be done in
an action for partition. There must first be an estate settlement.
NOTE: The appointment of commissioners is mandatory under the
circumstances. NOTE: The heirs, however, may take possession of the property
even before the settlement of accounts, as long as they first file a
The commissioners however have no authority to adjudicate on bond conditioned on the payment of the estate’s obligation.
questions of title or ownership of property.
WHERE DIVISION WOULD BE PREJUDICIAL: When it is made to

appear to the commissioners that the real state, or a portion RULE 70
thereof, cannot be divided without prejudice to the interests of FORCIBLE ENTRY AND UNLAWFUL DETAINER
the parties, the court may order it assigned to one of the parties
willing to take the same, provided he pays to the other parties SECS. 1-11, 14
such amount as the commissioners deem equitable, unless one of
the interested parties asks that the property be sold instead of ACTIONS TO RECOVER POSSESSION OF REAL PROPERTY:
being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale under such Accion Summary action for either:
conditions and within such time as the court may determine (Sec. interdictal a. forcible entry (detentacion), where
5). the defendant’s possession of the
property is illegal ab initio; or
ACTION OF THE COURT UPON YHE REPORT OF THE b. unlawful detainer (desahuico), where
COMMISSIONERS: the defendant’s possession was
originally lawful but ceased to be so
1. accept the report and render judgment in accordance by the expiration of the right to
therewith, or, possess,
2. for cause shown recommit the same to the both of which must be brought within 1 year
commissioners for further report of facts; or from the date of actual entry on the land, in
3. set aside the report and appoint new commissioners; or case of forcible entry; and from the date of last
4. accept the report in part and reject it in part; and demand, in case of unlawful detainer
5. may make such order and render such judgment as shall Accion A plenary action for the recovery of the right to
effectuate a fair and just partition of the real estate, or publiciana possess when the dispossession has lasted for
of its value, if assigned or sold as above provided, more than 1 year
between the several owners thereof. Accion Seeks the recovery of ownership and includes
reivindicatoria the jus possidendi
NOTE: The court cannot render judgment on the report of the or accion de
commissioners. The rule mandates that a hearing must be reivindicacion
conducted before a rendition of a judgment (Sec. 7)
ACCION PUBLICIANA v. ACCION REIVINDICATORIA:
SECS. 8-11
ACCION PUBLICIANA ACCION REIVINDICATORIA
JUDGMENT OF PARTITION; EFFECTS OF JUDGMENT: The
Plenary action to recover the Involves not only possession
judgment shall have the effect of vesting in each party the portion
right of possession which is but also ownership of the
of the real estate assigned to them.
brought when the property.
dispossession has lasted for
a. If the whole property is assigned to one of the parties
more than 1 year.
upon his paying to the others the sum or sums ordered
It is an ordinary civil 2 things must be proven:
by the court, the judgment shall state the fact of such
proceeding to determine the 1. The identity of the
payment and of the assignment of the real estate to the
better right of possession of property
realty, independently of title 2. Plaintiff’s title to it and restore physical possession thereof to the plaintiff.
Court with Jurisdiction
Since these actions are real actions, jurisdiction is determined by ACTUAL POSSESSION- consists in the manifestation of acts of
the assessed value of the property involved. dominion over it of such a nature as those a party would naturally
a. Where the assessed value does not exceed P20,000.00, exercise over his own property. It is not necessary that the owner
if outside Metro Manila, the action should be filed in the of a parcel of land should himself occupy the property as someone
MTC in his name may perform act.
b. Where the assessed value is greater than P20,000, if
outside MM, the RTC has jurisdiction ALLEGATIONS IN FORCIBLE ENTRY:
FORCIBLE ENTRY v. UNLAWFUL DETAINER 1. That the plaintiff had prior physical possession of the
property
FORCIBLE ENTRY UNLAWFUL DETAINER 2. That the defendant deprived him of such possession by
An action to recover possession An action for recovery of means of force, intimidation, threat, strategy or stealth.
of a property from the possession from the defendant
defendant whose occupation whose possession of the NOTE: The trespasser need not institute a state of war. No other
thereof is illegal from the property was inceptively lawful proof is necessary. The acts of going to the property and excluding
beginning since he acquired the by virtue of a contract (express the lawful possessor therefrom necessarily imply exertion of force
possession by force,or implied) with the plaintiff, over the property.
intimidation, threat, strategy or but became illegal when he
stealth continued his possession PRIOR POSSESSION IS REQUIRED: A party who can prove prior
despite the termination of his possession can recover such possession even against the owner
right thereunder himself
Consists nothing more than Actual possession, not legal
possession. ALLEGATIONS IN UNLAWFUL DETAINER: An allegation that the
The plaintiff must allege in the Not required. There must be an defendant is unlawfully withholding possession from the plaintiff
complaint and prove that he allegation in the complaint of is deemed sufficient, without necessarily employing the
was in prior physical possession how the possession of the terminology of the law.
of the property in dispute until defendant started or
he was deprived thereof by the continued, that is, by virtue of The following must be recited:
defendant by means of force, lease or any contract, and that
intimidation, threat, strategy or he held possession of the land 1. Initially, possession of property by the defendant was by
stealth or building after the expiration contract with or by tolerance of the plaintiff
or termination of the right to 2. Eventually, such possession became illegal upon notice
hold possession by virtue of by plaintiff to defendant of the termination of the
any contract, express or latter’s right of possession
implied. 3. The defendant remained in possession of the property
A demand to vacate is not Demand to vacate is necessary and deprived the plaintiff of the enjoyment thereof
required before the filing of the as a rule 4. Within 1 year from the last demand on defendant to
action because the occupancy vacate the property, the plaintiff instituted the
is illegal from the very complaint for ejectment.
beginning
GR: The 1 year period within It is counted from the date of SUMMARY NATURE OF THE ACTIONS: These actions for forcible
which to file the action is the last demand to vacate entry and unlawful detainer are designed to provide for an
generally counted from the expeditious means of protecting actual possession or the right to
date of actual entry on the land possession of the property involved. Both are covered by the
by the defendant. Rules on Summary Procedure irrespective of the amount of
damages or unpaid rentals sought to be recovered.
XPN: Where forcible entry was
thus made clandestinely, the 1 POSSESSION- does not mean that a man has to have his feet on
year period should be counted every square meter of the ground before he is deemed to be in
from the time private possession.
respondent demanded that the
deforciant desist from such NOTE: The decision in an ejectment case does not bind the title or
dispossession when the former ownership of the land or building.
learned thereof. In another
case, it is counted from the WHEN NO FACTS AVERRED SHOWING F.E. or U.D.: The action
time the plaintiff learned should either be accion publiciana or accion reinvidicatoria.
thereof
Court with jurisdiction: Within the exclusive and original WHEN DEFENDANT OCCUPIES PREMISES BY MERE TOLERANCE:
The possession becomes unlawful upon failure to comply with the
jurisdiction of the MTC, MCTC and MeTC. It shall be governed by
the rules on summary procedure irrespective of the amount of demand to vacate made by the owner. Such person is necessarily
bound by an implied promise that he will vacate upon demand.
damages or unpaid rentals sought to be recovered.
NOTE: It is essential that the plaintiff’s supposed acts of tolerance
VENUE: Since they are real actions, the venue is the place where
must be present right from the start of the possession, which is
the property subject of the action is situated. But they are also
actions in personam because the plaintiff seeks to enforce a later sought to be recovered.
personal obligation to vacate the property subject of the action
If the possession of the defendant was illegal at the inception and NOTE: Demand to vacate is required when the lease is on a
not merely tolerated, it is a possession by stealth which is forcible month-to-month basis to terminate the lease upon the expiration
entry. of the month. In the absence of such notice, the lease of private
respondent continues to be in force and cannot be deemed to
WHO MAY INSTITUTE THE ACTION FOR F.E. and U.D.: By any have expired as of the end of the month automatically.
person, natural or juridical, lessor, vendor, vendee or any person
against whom the possession of any land or building is unlawfully TACITA RECONDUCCION- An implied new lease or tacita
withheld after the expiration or termination of the right to hold reconduccion will set in if it is shown that:
possession y virtue of any contract, express or implied. 1. The term of the original contract of lease has expired
2. The lessor has not given the lessee a notice to vacate
EFFECT OF PENDENCY OF AN ACTION INVOLVING OWNERSHIP 3. The lessee continued enjoying the thing leased for 15
ON THE ACTION FOR F.E. and U.D.: None. The pendency of an days with the acquiescence of the lessor. This
action question the ownership of the property does not bar the acquiescence may be inferred from the failure to serve a
filing or consideration of an ejectment suit nor the execution of notice to quit.
the judgment therein.
When there is tacita reconduccion, the lessee cannot be deemed
EXAMPLES OF CASES WHICH DO NOT BAR AN ACTION FOR F.E. as unlawfully withholding the property. There is no unlawful
and U.D.: detainer to speak of.
1. Proceedings on consignation of rentals ANSWER TO COMPLAINT; WAIVER OF DEFENSES: Within ten (10)
2. A writ of possession case days from service of summons, the defendant shall file his answer
3. Action for quieting of title to the complaint and serve a copy thereof on the plaintiff.
4. Suits for specific performance with damages
5. Action for reformation of instrument Affirmative and negative defenses not pleaded therein shall be
6. Action for reconveyance of property or accion deemed waived, except lack of jurisdiction over the subject
reinvidicatoria matter.
7. Suits for annulment of sale, title, or document
Cross-claims and compulsory counterclaims not asserted in the
WHEN JUDICIAL ACTION IS NOT NECESSARY: Contractual answer shall be considered barred. The answer to counterclaims
stipulations empowering the lessor to respossess the leased or cross-claims shall be served and filed within ten (10) days from
property extrajudicially from a lessee whose lease contract has service of the answer in which they are pleaded (Sec. 6).
expired have been held to be valid. Being the law between the
parties, the stipulations must be respected. EFFECT OF FAILURE TO ANSWER: The court has no authority to
declare the defendant in default. Instead, the court, motu proprio,
DEMAND IN UNLAWFUL DETAINER CASE: The demand should be: or on motion of the plaintiff, shall render judgment as may be
1. To pay, and warranted by the facts alleged in the complaint and limited to
2. To vacate what is prayed for therein.
It should not be “to pay or vacate”. This demand, which is in the DEFENSE OF TENANCY: The jurisdiction of the court is determined
alternative, does not make out a case for unlawful detainer. by the allegations in the complaint and is not dependent upon the
defenses set up by the defendant. Hence, the defenses in the
FORM OF DEMAND: The demand may be in the form of written answer do not determine jurisdiction.
notice served upon the person found in the premises. The
demand may also be made by posting such written notice on the When tenancy is raised as a defense, the court must conduct a
premises if no person can be found thereon (Sec. 2). hearing on the matter to determine the veracity of the allegations
of tenancy. If it is shown to be a real issue, the court should
The demand upon a tenant may be verbal and is deemed dismiss yhe case for want of jurisdiction.
sufficient compliance with the jurisdictional requirements.
SECS. 16, 18
WHEN RIGHT TO COMMENCE THE ACTION ARISES: The right to
commence the action shall commence if the lessee fails to comply RESOLVING THE DEFENSE OF OWNERSHIP: The jurisdiction of the
with the demand after: court is determined by the allegations in the complaint and is not
1. 15 days in the case of land dependent upon the defenses set up by the defendant.
2. 5 days in the case of buildings
When the defendant raises the issue of ownership, the court may
NOTE: The subsequent payment did not cure his unlawful resolve the issue of ownership but only under the following
withholding of possession of the premises. The essence of conditions:
unlawful detainer is the failure of the defendant to heed the
demand to vacate and not the failure to pay the rentals in arrears. 1. When the issue of possession cannot be resolved
without deciding the issue of ownership
WHEN DEMAND IS NOT NECESSARY IN UNLAWFUL DETAINER 2. The issue of ownership shall be resolved only to
CASE: determine the issue of possession.
1. There is a stipulation dispensing with a demand When the parties raise the issue of ownership, the courts may
2. The ground for the suit is based on the expiration of the upon such issue to determine who between the parties has the
lease right to possess the property. The adjudication however is not
final and binding as regards the issue of ownership; it is merely for

the purpose of resolving the issue of possession when it is IMMEDIATE EXECUTION OF JUDGMENT (MTC): Ratio: To avoid
inseparably connected to the issue of ownership. injustice to a lawful possessor, and the court’s duty to order the
execution is practically ministerial.
SECS. 12, 13
DECISION OF THE RTC ON APPEAL IS IMMEDIATELY EXECUTORY:
CONCILIATION REQUIREMENT: The jurisdiction of the court is Whether such judgment be against the plaintiff or the defendant
determined by the allegations in the complaint and is not because the said rule makes no reference to the defendant (see
dependent upon the defenses set up by the defendant. Sec. 21 of the Rules on Summary Procedure).
PLEADINGS ALLOWED IN F.E. and U.D.: HOW TO STAY IMMEDIATE EXECUTION OF JUDGMENT: The
following are the steps:
1. Complaint
2. Compulsory 1. Perfect an appeal
3. Cross-claim pleaded 2. File a supersedeas bond to pay for the rents, damages
4. Answers thereto and costs accruing down to the time of the judgment
appealed from
NOTE: All pleadings must be verified. 3. Deposit periodically with the RTC, during the pendency
of the appeal, the adjudged amount of rent due under
PROHOBITED PLEADINGS: The following petitions, motions, or the contract, the reasonable value of the use and
pleadings shall not be allowed: occupation of the premises.
a. Motion to dismiss the complaint except on the ground NOTE: All the above requisites must concur.
of lack of jurisdiction over the subject matter, or failure
to comply with section 12; However, if the judgment does not make any pronouncement as
b. Motion for a bill of particulars; to the pecuniary liability of the defendant, the superseas bond
c. Motion for new trial, or for reconsideration of a shall not be required.
judgment, or for reopening of trial;
d. Petition for relief from judgment; CASE 22: While the ejectment suit was pending before the MTC,
e. Motion for extension of time to file pleadings, affidavits Juan Santos religiously deposits all current rentals. In due time,
or any other paper; the judge ordered Santos to pay all the rents until he vacates the
f. Memoranda; premises, as well as attorney’s fees in the amount of P5,000.00.
g. Petition for certiorari, mandamus, or prohibition against Maria Cruz moves for the immediate execution on the ground
any interlocutory order issued by the court; that Santos did not deposit the attorney’s fees of P5,000.00 and
h. Motion to declare the defendant in default; supersedeas bond for the award. Should the court grant the
i. Dilatory motions for postponement; immediate execution?
j. Reply;
k. Third-party complaints; A: No. A supersedeas bond covers rentals in arrears up to the time
l. Interventions of judgment. Since there are no unpaid rentals, there is no reason
for the bond. Also, the rule does not require a deposit for
SECS. 15, 20 attorney’s fees for the execution to be stayed.
PRELIMINARY INJUNCTION: A possessor deprived of his WHERE TO APPEAL: The judgment or final order is appealable to
possession through forcible from the filing of the complaint, the appropriate RTC. The mode of appeal is via notice of appeal
present a motion in the action for forcible entry or unlawful with and the docket fee paid in the court of origin.
detainer for the issuance of a writ of preliminary mandatory
injunction to restore him in his possession. The court shall decide Upon motion of the plaintiff, within ten (10) days from the
the motion within thirty (30) days from the filing thereof. perfection of the appeal to the Regional Trial Court, the latter may
issue a writ of preliminary mandatory injunction to restore the
PRELIMINARY INJUNCTION WHEN CASE IS ON APPEAL TO THE plaintiff in possession if the court is satisfied that the defendant's
RTC: If the judgment of the MTC is appealed, the RTC may issue a appeal is frivolous or dilatory or that the appeal of the plaintiff is
writ of preliminary mandatory injunction to restore the plaintiff in prima facie meritorious (Sec. 20).
his possession, upon his motion which shall be filed within 10 days
from the perfection of the appeal. Such is predicated on: PERSONS BOUND BY THE JUDGMENT IN EJECTMENT CASES:
a. Defendant’s appeal is frivolous or dilatory
b. Plaintiff’s appeal is prima facie meritorious GR: The judgment in ejectment case is binding only upon the
parties properly impleaded and given an opportunity to be heard.
SEC. 17, 19, 21 This is because an ejectment suit is an action in personam.
However, the judgment may become binding on anyone who has
JUDGMENT: Judgment shall be rendered by the court in favor of not been impleaded in certain instances such as:
the plaintiff if the court finds that the allegations in the complaint 1. Trespasser, squatter, or agent of the defendant
are true. fraudulently occupying the property to frustrate the
judgment
The judgment shall be for the: 2. Guest or occupant of the premises with the permission
a. Restitution of the premises of the defendant
b. Payment of the sum justly due as arrears of rent or as 3. A transferee pendent lite
reasonable compensation for the use and occupation of 4. Sublessee
the premises, attorney’s fees and costs 5. Co-lessee
6. Member of the family

Need not be committed in the
immediate presence of the
court if it tend to obstruct
RULE 71 justice or interfere with the
CONTEMPT actions of the court in the
courtroom itself;
SECS. 1-8, 10
Summary- does not refer to the timing of the action with
CONTEMPT OF COURT- The willful disregard or disobedience of a reference to the offense but to the procedure that dispenses with
public authority. the formality, delay and digression that result from the issuance of
process, service of complaint and answer, holding of hearings,
It is the disobedience to the court, by acting in opposition to its taking evidence, listening to arguments, awaiting briefs,
authority, justice, and dignity. It signifies not only a willful submission of findings, and all that goes with conventional court
disregard or disobedience of the court’s order, but also such trial.
conduct which tends to bring the authority of the court and the
administration of law into disrepute, or in some manner, to SPECIFIC ACTS PUNISHABLE AS DIRECT CONTEMPT; EXAMPLES:
impede the due administration of justice.
1. misbehavior in the presence of or so near a court as to
CONTEMPT OF COURT IS INHERENT IN COURTS: It is essential for obstruct or interrupt the proceedings before the same,
the preservation of order in judicial proceedings and enforcement 2. disrespect toward the court,
of judgments, orders, and mandates of the court, and 3. offensive personalities toward others, or
consequently, to the due administration of justice. It need not be 4. refusal to be sworn or to answer as a witness, or to
specifically granted by the statute. subscribe an affidavit or deposition when lawfully
required to do so (Sec. 1).
However, this should be exercised in preservative, not in 5. Acts of a party or counsel which constitute willful and
vindicative principle. deliberate forum-shopping (Sec. 5, Rule 7);
6. Unfounded accusations, allegations or words tending to
PURPOSES AND NATURE: embarrass the court or bring it to disrepute. If a
pleading containing derogatory, offensive and malicious
Dual Function: statements is submitted to the court, it is direct
1. Vindication of public interest by punishment of contempt (Re: Letter dated 21 February 2005 of Atty.
contemptuous conduct Sorreda).
2. Coercion to compel the contemnor to do what the law 7. Contempt of court presupposes a contumacious
requires him to uphold the power to the court, and also attitude, a flouting of arrogant belligerence, and a
to secure the rights of the parties to a suit awarded by defiance of the court. There is no basis for direct
the court contempt where there is no proof that the laughter,
conversations and glances of persons were directed to
DIRECT AND INDIRECT CONTEMPT: the judge and that they disputed or obstructed the
proceedings.
DIRECT CONTEMPT INDIRECT CONTEMPT
Committed in the presence of An act done at a distance which NO FORMAL PROCEEDING REQUIRED; SUMMARY PROCEEDINGS:
or so near the court or judge as tends to belittle, degrade, Court may summarily adjudge one in direct contempt without a
to obstruct or interrupt the obstruct, or embarrass the hearing;
proceedings before the same. court and justice.
When a person is guilty of Committed out of the presence But there must be adequate facts to support a summary order for
misbehavior in the presence of of the court. contempt in the presence of the court.
or so near the court as to
obstruct or interrupt its PENALTIES FOR DIRECT CONTEMPT:
proceedings, including
disrespect toward the court, a. If the act was committed against a RTC or a court of
offensive personalities towards equivalent or higher rank, the penalty is a fine not
the others, or refusal to be exceeding 2000 pesos or imprisonment not exceeding
sworn or answer as a witness, 10 days, or both.
or subscribe an affidavit or b. If the act was committed against a lower court, the
deposition when lawfully penalty is a fine not exceeding two hundred pesos or
required to do so. imprisonment not exceeding one (1) day, or both (Sec1).
Committed in the presence of Willful disobedience to the
or so near the judge as to lawful process or order of the REMEDY OF A PERSON ADJUDGED IN DIRECT CONTEMPT: The
obstruct him in the court. person adjudged in direct contempt by any court may not appeal
administration of justice; therefrom, but may avail himself of the remedies of certiorari or
Punishment is generally Requires proceedings less prohibition directed against the court which adjudged him in
summary and immediate, and summary than the first; it indirect contempt.
no process or evidence is needs notice, written charges,
necessary because the act is and an opportunity to deny and The execution of the judgment shall be suspended pending
committed in facie curiae; to defend such charges before resolution of such petition, provided such person files a bond
there is no need of further guilt is adjudged and sentence fixed by the court which rendered the judgment and conditioned
proof of facts and without aid is imposed. that he will abide by and perform the judgment should the
of trial; not open to question; petition be decided against him (Sec.2).

As the 20-day lifetime of the TRO was about to expire, court
NATURE OF INDIRECT CONTEMPT: A person guilty of any of the issued an order extending the effectivity of the TRO for another
following acts may be punished for indirect contempt: 20 days. The defendant however, committed an act in violation
of he TRO. Is he guilty of indirect contempt?
a. Disobedience or resistance to a lawful writ, process,
order or judgment of the court; A: Defendant is not guilty of indirect contempt. There was no TRO
b. Any abuse or any unlawful interference with the that could be legally violated. The court had no authority to
processes or proceedings of a court not constituting extend the TRO for another 20 days. The extension is null and
direct contempt; and void.
c. Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of HOW A PROCEEDING FOR INDIRECT CONTEMPT IS COMMENCED:
justice (Siy v. NLRC). It is to be punished only after a charge in writing and hearing. But
nothing shall be so construed as to prevent the court from issuing
SPECIFIC ACTS PUNISHABLE AS INDIRECT CONTEMPT; EXAMPLES: process to bring the respondent into court, or from holding him in
(a) Misbehavior of an officer of a court in the performance custody pending such proceedings (Sec. 3).
of his official duties or in his official transactions;
REQUISITES:
(b) Disobedience of or resistance to a lawful writ, process,
order, or judgment of a court, including the act of a a. Charge in writing;
person who, after being dispossessed or ejected from b. Opportunity for the person charged to appear and
any real property by the judgment or process of any explain his conduct; and
court of competent jurisdiction, enters or attempts or c. Opportunity to be heard by himself or counsel.
induces another to enter into or upon such real
property, for the purpose of executing acts of ownership 2 WAYS BY WHICH A PERSON CAN BE CHARGED WITH INDIRECT
or possession, or in any manner disturbs the possession CONTEMPT:
given to the person adjudged to be entitled thereto;
a. Through a verified petition; and
(c) Any abuse of or any unlawful interference with the b. By order of formal charge initiated by the court motu
processes or proceedings of a court not constituting proprio (Sec.4).
direct contempt under section 1 of this Rule;
1. If the charge is initiated motu proprio by the court against
(d) Any improper conduct tending, directly or indirectly, to which the contempt was committed, it is commenced by an
impede, obstruct, or degrade the administration of order or any other formal charge requiring the respondent to
justice; show cause why he should not be punished for contempt
(Sec.4).
(e) Assuming to be an attorney or an officer of a court, and 2. In all other cases, charges for indirect contempt shall be
acting as such without authority; commenced by a verified petition with supporting particulars
and certified true copies of documents or papers involved
(f) Failure to obey a subpoena duly served; therein.
(g) The rescue, or attempted rescue, of a person or The petition shall likewise comply with requirements for filing of
property in the custody of an officer by virtue of an initiatory pleadings for civil actions. Since it is considered as an
order or process of a court held by him (Sec. 3). initiatory pleading and must comply with the requirements for
filing of initiatory pleadings, the petition must contain a
Failure by counsel to inform the court of the death of his client certification against forum-shopping. The petition shall be
constitutes indirect contempt since it constitutes an improper docketed, heard and decided separately, unless the court in its
conduct tending to impede the administration of justice. It is also discretion orders the consolidation of the contempt charge and
a ground for disciplinary action under Sec. 16, Rule 3. the principal action for joint hearing and decision (Sec. 4).
CASE 23: A defendant who was ousted from the property in NOTE: The procedural requirements are mandatory considering
litigation re-entered the property and forcibly took over its that contempt proceedings are treated as criminal in nature.
possession. Can the plaintiff move that the defendant be
declared in indirect contempt? NECESSITY FOR HEARING: Respondent charged with indirect
contempt must be served with a copy of the petition.
A: Yes, after he is duly charged and not by mere motion.
While the respondent is not required to file formal answer similar
The act of re-entry by a party into the land from which he was to that in ordinary civil actions, the court must set the contempt
ordered by the court to vacate may be punished for contempt of charge for hearing on a fixed date and time on which the
court even after the lapse of 5 years from date of execution of respondent must make his appearance to answer the charge.
judgment. Re-entry is clearly a defiance of the authority of the
court. On the day set therefor, the court shall proceed to investigate the
charge and consider such comment, testimony or defense as the
CASE 24: In an action for injunction and damages, the plaintiff respondent may make or offer (Sec. 6).
applied for a TRO and preliminary injunction. The court issued a
TRO and set the application for preliminary injunction for If the respondent does not appear, the court may order his arrest,
hearing. just like the accused in a criminal case who fails to appear when so
required. The court does not declare him in default.

If the hearing is not ordered to be had forthwith, the respondent prejudiced by his release. Provided, that the interest of the public
may be released from custody upon filing a bond, in an amount will not be prejudiced by such release (Sec. 10).
fixed by the court, for his appearance at the hearing of the charge
(Sec. 6). REMEDY OF A PERSON ADJUDGED IN INDIRECT CONTEMPT: The
judgment or final order of a court in a case of indirect contempt
COURT WHERE THE CHARGE FOR INDIRECT CONTEMPT IS TO BE may be appealed to the proper court as in criminal cases. But
FILED: execution of the judgment or final order shall not be suspended
until a bond is filed by the person adjudged in contempt, in an
a. Where the charge for indirect contempt has been amount fixed by the court from which the appeal is taken,
committed against a Regional Trial Court or a court of conditioned that if the appeal be decided against him he will abide
equivalent or higher rank, or against an officer by and perform the judgment or final order (Sec. 11).
appointed by it, the charge may be filed with such court;
b. Where such contempt has been committed against a SEC. 12
lower court, the charge may be filed with the Regional
Trial Court of the place in which the lower court is CONTEMPT AGAINST QUASI-JUDICIAL ENTITIES: Rule 71 shall
sitting. It may also be filed in the lower court against apply to contempt committed against persons, entities, bodies or
which the contempt was allegedly committed. The agencies exercising quasi-judicial functions. This rule shall have
decision of the lower court is subject to appeal to the suppletory effect to rules on contempt which may be adopted by
RTC (Sec. 5). such quasi-judicial bodies.
c. Unless otherwise provided by law, where the contempt
was committed against persons, entities, bodies or Quasi-judicial bodies that have the power to cite persons for
agencies exercising quasi-judicial functions, the charged indirect contempt can only do so by initiating them in the proper
shall be filed with the RTC of the place wherein the RTC. It is not within their jurisdiction and competence to decide
contempt was committed (Sec. 12). the indirect contempt cases.
PENALTY FOR INDIRECT CONTEMPT: Rule 71 does not require the LA or the NLRC to initiate the indirect
contempt proceedings before the trial court. This mode is to be
observed only when there is no law granting them contempt
a. If the respondent is adjudged guilty of indirect contempt powers
committed against a Regional Trial Court or a court of
equivalent or higher rank, he may be punished by a fine OTHER KINDS OF CONTEMPT DEPENDING ON THE NATURE AND
not exceeding thirty thousand pesos or imprisonment EFFECT OF THE ACT; CRIMINAL OR CIVIL CONTEMPT:
not exceeding six (6) months, or both.
b. If he is adjudged guilty of contempt committed against a CRIMINAL CIVIL
lower court, he may be punished by a fine not exceeding Conduct directed against the The failure to do something
five thousand pesos or imprisonment not exceeding one authority and dignity of the ordered to be done by a court
(1) month, or both. court or judge acting judicially. or judge for the benefit of the
c. If the contempt consists in the violation of a writ of It is an act obstructing the opposing party therein and is
injunction, temporary restraining order or status quo administration of justice which an offense against the party in
order, he may also be ordered to make complete tends to bring the court into whose behalf the violated
restitution to the party injured by such violation of the disrepute or disrespect. order was made.
property involved or such amount as may be alleged and Purpose is to punish or To compensate
proved (Sec. 7). vindicate dignity or authority of
d. where the contempt was committed against persons, the court.
entities, bodies or agencies exercising quasi-judicial
functions, the penalty imposed shall depend upon the Proceedings for contempt are sui generis.
provisions of the law authorizing a penalty for contempt
against such persons or entites (Sec. 12). The character of contempt of whether it is criminal or civil is
determined by the nature of the contempt involved, regardless of
IMPRISONMENT UNTIL ORDER IS OBEYED: When the contempt the cause in which the contempt arose and relief sought or
consists in the refusal or omission to do an act which is yet in the dominant purpose.
power of the respondent to perform, he may be imprisoned by
order of the court concerned until he performs it (Sec.8). CRITICISM OF COURTS: An attorney may be critical of the courts
and their judges provided that the criticism is made in respectful
This may be resorted to when non-compliance with the court terms and through legitimate channels.
order is an utter disregard of the authority of the court which has
no other recourse but to use its coercive power. The criticism shall be bona fide and not to spill over the walls of
decency and propriety. A wide chasm exists between fair criticism
This is imposed for the benefit of the complainant or a party to a and abuse and slander of court and judges.
suit who has been injured.
The power to punish contempt does not render courts
It is only the judge, who orders the confinement of a person for impenetrable to public scrutiny nor does it place them beyond the
contempt of court, who can issue the Order of Release. scope of legitimate criticism. Yet, intemperate and unfair criticism
is a gross violation of the duty to respect courts and therefore
RELEASE OF RESPONDENT: The court which issued the order warrants the wielding of the power to punish for contempt.
imprisoning a person for contempt may discharge him from
imprisonment when it appears that public interest will not be

However, it has been invoked by Congress as a means of
CONTEMPT IN RELATION TO EXECUTION OF JUDGMENTS: preserving its authority and dignity.
GR: Contempt is not a means of enforcing judgment. Hence, mere CONTEMPT POWER OF LOCAL LEGISLATIVE BODIES: No power of
refusal or unwillingness of the debtor to comply with the order to contempt.
vacate the property is not sufficient ground to hold him in
contempt.
A writ of execution is not directed against judgment debtor but to REFERENCE:

a sheriff who is ordered to deliver the property to the prevailing
party.  RIANO, WILLARD B., CIVIL PROCEDURE II: The Bar
Lecture Series, Rex Bookstore, 2012 Edition
XPN: If after the dispossession, the judgment debtor should
continue to execute acts of ownership or possession or in any
manner disturb the possession of the judgment creditor.
It is not refusal of the judgment DR to vacate which constitutes

contempt but the act of re-entry after his ouster from the
property.
RULE 11, SEC. 39:
When a judgment requires the performance of any act other than

those mentioned in the two preceding sections, a certified copy of
the judgment shall be attached to the writ of execution and shall
be served by the officer upon the party against whom the same is
rendered, or upon any other person required thereby, or by law,
to obey the same, and such party or person may be punished for
contempt if he disobeys such judgment.
The refusal constitutes a violation of the writ or order directed to

the party required to obey the same.
An officer who disobeys a writ of certiorari directed against him,

shall be punished for contempt.
SEC. 9 and 11
CONSEQUENCES WHEN A PARTY RELEASED ON BAIL FAILS TO

APPEAR:
a. The court may issue another order of arrest or

b. may order the bond for his appearance to be forfeited
and confiscated, or both.
If the bond be proceeded against, the measure of damages shall

be the extent of the loss or injury sustained by the aggrieved party
by reason of the misconduct for which the contempt charge was
prosecuted, with the costs of the proceedings, and such recovery
shall be for the benefit of the party injured. If there is no
aggrieved party, the bond shall be liable and disposed of as in
criminal cases (Sec. 9).
CONTEMPT POWERS OF THE LEGISLATURE; LEGISLATIVE

INVESTIGATIONS:
Basis: Art. VI, Sec. 21 which recognizes the power to conduct

legislative inquiries subject to the following limitations:
a. it must be exercised in aid of legislation;

b. must be in accordance with the duly published rules of
procedure; and
c. rights of persons appearing in or affected by such
inquires shall be respected.
There is no express constitutional provision which vests Congress

the power to cite non-members of the Congress for contempt.


Hizon Notes - Provisional Remedies and Special Civil Actions

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Hizon Notes - Provisional Remedies and Special Civil Actions

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NOTES ON PROVISIONAL REMEDIES AND SPECIAL CIVIL ACTIONS

Kenneth and King C. Hizon (4A) _________________________________________________________________________________________________________

PROVISIONAL REMEDIES AND

PROVISIONAL REMEDIES 3. Under Sec.33 of B.P. 129, as amended, the jurisdiction

Facultad de Derecho Civil 1

Strict construction of the rule: The rules on the issuance of the

SECS. 1-4 WHO MAY AVAIL OF PRELIMINARY ATTACHMENHT: Sec. 1 of

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1. Copy of the order of attachment; EXAMINAION OF PARTY WHOSE PROPERTY IS ATTACHED OR OF

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STAGE OF PROCEEDINGS WHEN GRANTED: At any stage of the

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PRELIMINARY PROHIBITORY INJUNCTION V. PETITION FOR 2 REQUISITES FOR THE ISSUANCE:

At the hearing, mere prima facie evidence is needed to establish

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SEC. 5 DURATION OF A TRO:

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RULE 59 3. When the property mortgaged is in danger of being

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SPECIAL NOTE on BONDS:

PROCEDURE FOR APPLICATION FOR REPLEVIN: SEC. 3

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WHEN PROPERTY IS CLAIMED BY A THIRD PARTY: If the property PROCEDURE:

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C. Human Security Act or RA. 9372 a. Spousal support;

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G. Corporate Rehabilitation (AM No. 00-8-00-10-SC)

H. Environmental Cases (AM 09-6-8-SC)

a. Attachment in civil cases;

I. R.A. 9285 or an Act to institutionalize the use of ADR

i. To prevent irreparable loss or injury;

J. Special rules of court on ADR (AM No. 07-11-08):

A petition for interim measure of protection may be made:

a. Before arbitration is commenced;

The following are the interim measures of protection that the

a. Preliminary injunction directed against a party to

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PART II HOW SPECIAL CIVIL ACTIONS ARE INITIATED OR COMMENCED:

KINDS OF CIVIL ACTIONS: 1. Interpleader

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SECS. 2&3 OTHER PLEADINGS:

1. Impropriety of the interpleader action

IMPROPRIETY OF THE INTERPLEADER ACTION: SECS. 1 to 6

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WHO MAY FILE THE PETITION: APPLICABILITY OF A COMPULSORY COUNTERCLAIM: A petition

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This is an action quasi in rem wherein an individual is named a RULE 64 RULE 65

If the motion is denied, aggrieved party may file the petition

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MANDAMUS MINISTERIAL VERSUS DISCRETIONARY ACTS:

SEC. 3 MINISTERIAL DISCRETIONARY ACT