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PROVISIONAL REMEDIES (Rule 60)

R U L E 60
REPLEVIN
Under the previous rule, it is entitled "delivery of personal property". But its popular term
is replevin.

Q: What is the main action here?

A: The  main action is the recovery of possession of personal property.

At the commencement of the main action at any time before answer, the  plaintiff may
pray for an order, for the delivery of the property to him,  meaning,  he will  ask for the
issuance of a writ of seizure or writ of replevin.  So, replevin is a term that could be used
to describe the main action or to describe a provisional remedy.

This was stated by the SC in the recent case of

BA Finance Corp. vs. CA

253 S 102
(July 05, 1996)

According  to  Justice Vitug, replevin as understood is both a

form  of principal  remedy and a provisional remedy. It
may refer either  to the action itself, that is to regain the
possession of personal property or to  the  provisional
remedy to disallow the plaintiff to  retain  the thing during
the  pendency of the action. The action is possessory
nature, being  to  determine  who has the right to  possession.
Replevin is usually described as a mixed action, being partly in
rem and personam. In rem in  so far as the recovery of specific
personal property is concerned and in personam as regard to
damages involved because damages are also sought in the
pleadings.

Section 1. Application - A party praying for the recovery  of

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

Q: When do you seek this provisional remedy?

A: Under  section  1,  at the commencement of the action  or  at  anytime before answer.

So very limited. It is shorter. If you look at the old Rules, it  provides for  "at the
commencement of the action and at anytime before JUDGMENT and  in the new rules,
it's anytime before answer.

Again, the main action is recovery of personal property.

Example: Somebody borrowed your personal property. Ayaw isauli. The procedure is to
file a case to recover possession of the personal property and in the meantime that the
case is going on, you can apply for a provisional remedy of replevin.

Section  2.  Affidavit and   bond.-The   applicant must  show

by his own affidavit or that of some   other person who
personally knows the facts:

a. That  the applicant is the  owner  of  the property

claimed, particularly describing it, or   is entitled to the
possession thereof;

b. That the property is wrongfully detained by the   adverse

party, alleging the cause   of detention thereof according
to the best of his knowledge, information, and belief;
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c. That the property has not been distrained or taken for a
tax assessment or a fine pursuant to  law, or   seized
under a writ of execution  or   preliminary attachment,
or otherwise placed under custodia  legis, or   if so
seized, that it is exempt from such  seizure or custody;
and

d. The actual market value of the property.

The applicant must also give a bond, executed to the

adverse party in double the value of the   property as  stated
in the affidavit aforementioned,   for  the return   of the
property to the adverse party   if   such return be adjudged,
and for the payment to the adverse party of such sum as he
may recover from the applicant in the action.

Q: What are the ESSENTIAL REQUISITES OF REPLEVIN ?

1.) SWORN AFFIDAVIT executed by the applicant or some  other  persons  who
personally  knows  the  fact alleging  the essential allegations as stated in
Section 2, a to d.

Q: What does “entitled to the property” mean under letter a?

A: The applicant here is not the owner but he is entiled to the property.
Example: A sold a car to B on installment basis. B, now the owner mortgaged the car
to C. B failed to pay A. So, A became an unpaid seller and one of his remedies is to
file a foreclosure proceeding. How can A get the possession of the property? File a
provisional remedy of replevin.A in this case is no longer the owner of the property
but he is entitled to the property.

There is a slight change in par. c compared to the previous Rule. In par. c, the
affiant/applicant must allege under oath that the property has not been distrained or
taken for a tax assessment or a fine pursuant to law or seized under a writ of
execution or preliminary attachment or otherwise placed under custodia legis.

The  addition is: “otherwise placed under custodia legis”.

And the  last allegation is that the affidavit must alleged the actual market value of the
property. They added the word "market value". Before it is only value.

Q: Can the court take cognizance of a replevin suit considering that the object was
the recovery of lumber seized and forfeited by law enforcement agents of the DENR
pursuant to P.D. 705?

A: Answer is in the case of Dy vs. CA

DY vs CA
March 9, 1999 (304 SCRA 331)

FACTS: Two trucks with Plate Nos. KAK-542 and KBL-214 and loaded
with lumber approached the checkpoint. They were flagged down by the
operatives. Forester Resurreccion Maxilom of the DENR issued a
temporary seizure order and a seizure receipt for the two vehicles and
their cargo consisting of several pieces of lumber . On October 20, 1993,
more than two months after the lumber had been forfeited, petitioner,
claiming to be the owner of the lumber, filed a suit for replevin in the
Regional Trial Court of Butuan City (Branch 5) for its recovery. The next
day, October 21, 1993, the trial court issued a preliminary writ of
replevin.

HELD: The appeal is without merit. The rule is that a party must exhaust
all administrative remedies before he can resort to the courts. In a long
line of cases, we have consistently held that before a party may be
allowed to seek the intervention of the court, it is a pre-condition that he
should have availed himself of all the means afforded by the
administrative processes. Hence, if a remedy within the administrative

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PROVISIONAL REMEDIES (Rule 60)
machinery can still be resorted to by giving the administrative officer
concerned every opportunity to decide on a matter that comes within
his jurisdiction then such remedy should be exhausted first before a
court's judicial power can be sought. The premature invocation of a
court's intervention is fatal to one's cause of action. Accordingly, absent
any finding of waiver or estoppel, the case is susceptible of dismissal for
lack of cause of action.

2)   The  applicant must post  a  REPLEVIN  BOND double the value of the property.

That is to guarantee the return to the adverse party in case the  return is adjudged
and for damages caused by the unlawful replevin. What is the basis of the
jurisdiction of the court.

Q: Does  the MTC has jurisdiction to entertain replevin case ?

A: Yes. If the value of the property is P100,000.00 and below and in  Metro Manila,
P200,000.00.

Take note: The basis of the jurisdiction is the value of the property and NOT the value
of the bond.

Section  3.  Order.-  Upon the   filing   of   such affidavit  and

approval of the bond, the court shall issue an order and the
corresponding writ of  replevin describing the personal
property alleged to be   wrongfully detained and requiring
the sheriff forthwith to take such property into his custody.

The order is issued without hearing. It is based only on the allegation in the pleading
because of the time element.

Section 4. Duty of the sheriff.- Upon   receiving such   order,

the sheriff must serve a copy thereof  on the adverse party,
together with a copy of the application,   affidavit and bond,
and must  forthwith   take the   property, if it be in the
possession of   the   adverse party, or his agent, and retain it
in his custody.  If the property or any part thereof be
concealed in  a building or enclosure, the sheriff  must
demand its   delivery,   and if it be not delivered, he   must
cause the building or enclosure to be broken open   and take
the property  into his possession.  After  the sheriff  has
taken  possession of  the  property as herein  provided, he
must keep it in a  secure  place and   shall   be   responsible
for  its delivery   to   the property entitled thereto upon
receiving his fees   and necessary expenses for taking and
keeping the same.

Q: What happens after the court issues the writ if replevin ?

A: Section 4. The sheriff has to take possession  of  the property from the defendant and
it will in the sheriff for 5 days.

Section  5. Return of property.- If the   adverse party objects

to the sufficiency of   the applicant's bond, or of the surety
or sureties thereon, he   cannot immediately require the
return of the property, but if he does not so object, he may,
at any time before   the delivery of the property to the
applicant, require the return   thereof,   by filing with the
court   where  the action is pending a bond executed to the
applicant, in double  the value of the property as   stated   in
the applicant's affidavit for the delivery thereof to the
applicant,  if such delivery be adjudged, and for  the
payment of such sum to him as may be recovered against
the adverse party, and by serving a copy of such   bond on
the applicant.
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PROVISIONAL REMEDIES (Rule 60)

Section 6. Disposition of property by  sheriff.- If within five(5)

days after the taking of the property   by the sheriff, the
adverse party does not   object to  the sufficiency of the
bond, or of the   surety   or sureties   thereon; or if the
adverse party so   objects and the court affirms its approval
of the applicant's bond  or approves a new bond, or if the
adverse party requires   the return of the property but his
bond  is objected   to   and found insufficient and he  does
not forthwith file an approved bond, the property shall be
delivered  to  the applicant. If for  any  reason  the
property is not delivered to the applicant, the  sheriff must
return it to the adverse party.

Under Section 5, there are two options or alternatives for the defendant:
1. Put up a counter-bond which is double the value of the property. If he does so,
he has the right to demand the return of the property to him.
2. Object to the sufficiency of the replevin bond.

Purpose of the counter-bond: The counter-bond is to answer for damages that the
plaintiff may suffer if  it  turns out that all along the plaintiff is entitled the  possession  of
property. And also if after the case is won by the plaintiff and defendant  is ordered to
retain the property, by that time, the property is already  dilapidated and depreciated.
Therefore, the plaintiff is no longer willing to accept it and therefore has to hold the
counter-bond liable for the value of the property. Also within the five-day period, either the
defendant will put up a counter-bond or object to the sufficiency of the replevin bond.

According to jurisprudence, if the  defendant  questions the sufficiency of the bond,

then he can no longer require  the return of the property by putting the counter-
bond. The authority there is the ruling  in the case of

La Tondena Distillers Inc. vs. CA

209 S 553

The SC explained: If the defendant in the replevin action wishes to

have the property taken be restored to him, he should within 5  days
from such taking:
1.) post a counter-bond double the value of the property taken,
2.) serve the plaintiff a copy thereof:

Both  requirements  as  long as compliance therewith  within  the  5-

day period mentioned being mandatory. Alternatively the defendant
may  object to the sufficiency of the plaintiff bonds but if he objects to
the sufficiency of the bond, he cannot require the return of the
property by putting up a  counter-bond.

Q: What is the reason why the property has to stay with the sheriff for 5 days?
A: Because during the 5-day period, the defendant has to think which of the two options/
alternatives he will choose.

Q: Suppose the defendant will not use any of the options?

A: The sheriff will deliver the property to the defendant.

Q: Can the defendant file a motion to dissolve the writ of replevin on  the ground  that the
plaintiff has no right to file a case, meaning, he  is  not entitled to the possession?
A: As  explained  by the SC in La Tondena Distillers case, that  is  not  a ground.  It
should be resolved in the main action.

Difference between Replevin and Attachment under Rule 57 or Injunction under Rule 58:

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PROVISIONAL REMEDIES (Rule 60)
plevin Replevin

Attachment & Injunction

Title or right to the property cannot be You can question the title or right of the
questioned in the motion to discharge the plaintiff to attach the property.
writ of replevin. It must be threshed out
during the trial.

The court said in La Tondena, “in other words the law does not allow  the defendant   to
file a motion to discharge or destroy the writ   of   seizure   or delivery   on the grounds of
insufficiency of the complaint or on the  grounds relied   upon therefore and thereby put
at issue the matter of title or  right of possession over the specific chattel subject of the
replevin. The policy apparently being that said matter should be ventilated and
determined only at the   trial  on the merits. Therefore, the defendant cannot file  a
motion  to dissolve the writ of replevin on the ground that the plaintiff has no right”.

In the case of

Aravest Industrial Philippines vs. CA

216 S 602

HELD: The requirement in Section 5 & 6 that there must be  a counter-

bond assumes that the replevin bond validly filed. So, if there  is  a void
replevin  bond, there is no obligation for the defendant to  put  up  a
counter-bond.  "  The requirement of posting a counter-bond  to  acquire
re-possession of the chattel subject of the writ of replevin presupposes a
valid writ of replevin." The assumption is that the writ of replevin is valid.

Take note: If the defendant puts up a counter-bond, he is saying that the

writ of replevin filed by the plaintiff is valid.

Section 7. Proceedings where property claimed by third

person.- If the property 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
makes an affidavit of his title thereto, or right to the
possession thereof, stating the grounds  therefor, and
serves such affidavit upon the sheriff while   the latter   has
possession  of the property and a  copy thereof   upon the
applicant, the sheriff shall not  be bound to keep the
property under replevin or  deliver it to the applicant unless
the applicant or his agent, on demand of said sheriff, shall
file a bond   approved by the court to indemnify the third-
party claimant   in a  sum not less than the value of the
property  under replevin  as provided in section 2 hereof. In
case of disagreement as to such value, the court shall
determine the same. No claim for damages for the taking or
keeping   of the property may be enforced  against   the bond
unless the action therefor is filed   within   one hundred
twenty (120) days from the date of filing   of the bond.

The sheriff shall not be liable for damages, for the  taking
or keeping of such property, to any  such third party
claimant if such bond  shall  be  files. Nothing   herein
contained shall prevent such  claimant or any third person
from vindicating his claim to   the property,   or prevent   the
applicant  from  claiming damages  against  a third-party
claimant who  filed a frivolous or plainly spurious claim, in
the same or   a separate action.
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When the writ of replevin is issued in favor   of the  Republic
of the Philippines, or any officer   duly representing it, the
filing of such bond shall not   be required, and in case the
sheriff is sued for  damages as  a result of the replevin, he
shall be   represented by the Solicitor General, and if held
liable therefor, the actual damages adjudged by the court
shall be paid by   the National   Treasurer out of the  funds
to   be appropriated for the purpose.

Q: Suppose the property seized is claimed by a third person. What  is the  remedy of the
third person ?
A: The  same  remedy of TERCERIA, third-party claim or,  there  is  nothing there
preventing him to file a correct action to litigate his claim.

So, third party claim is a remedy applicable in execution,  preliminary attachment and
replevin. Section 7 of Rule 60 should be read also with  Section 16 of Rule 39 and
Section 14 of Rule 57 on third party claim on preliminary attachment.

Section   8. Return of papers.-The  sheriff   must file the

order, with his proceedings indorsed thereon, with   the
court within ten (10) days after taking  the property
mentioned therein.

The sheriff must make a report to the court as to what happened to the property ordered
to be seized by the court.

Section  9. Judgment - After trial of the issues,   the court

shall determine who has the right of  possession to  and the
value of the property   and  shall   render judgment  in the
alternative for the delivery   thereof to the party entitled to
the same, or for its value is case  delivery cannot be made,
and also for such   damages as either party may prove, with
costs.

Q: What is the nature of the judgment in a replevin   action ?

A: The  judgment is ALWAYS IN THE ALTERNATIVE,  either  the  defendant will be
ordered to return the chattel to the plaintiff or alternatively to pay for the value.

Q: Why ?
A: According to the SC, the reason is to afford the plaintiff a measure  of relief. If the
property cannot be returned in substantially  the  same condition,  the right to reject the
property can be exercised not  only  after judgment  but  also  in seeking delivery of the
property  pendente  lite.  The personal property is useless. So, it will also answer for
damages.

Section  10.  Judgment  to  include  recovery  against

sureties.-The  amount,  if any, to be awarded   to   any party
upon   any  bond filed in   accordance  with   the provisions
of  this Rule, shall   be   claimed,   ascertained,   and granted
under the same procedure as  prescribed in section 20 of
Rule 57.

It should be recovered in the very same case and not in a separate action.

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