2020 BAR REVIEW REMEDIAL LAW

Handout No. 54
PROVISIONAL REMEDIES

PRELIMINARY ATTACHMENT

A Writ of Attachment May Be Issued at the Commencement of the Action

As a preliminary note, a distinction should be made between issuance and implementation of the
writ of attachment. It is necessary to distinguish between the two to determine when jurisdiction
over the person of the defendant should be acquired to validly implement the writ. This
distinction is crucial in resolving whether there is merit in petitioner’s argument. This Court has
long settled the issue of when jurisdiction over the person of the defendant should be acquired
in cases where a party resorts to provisional remedies. A party to a suit may, at any time after
filing the complaint, avail of the provisional remedies under the Rules of Court. Specifically, Rule
57 on preliminary attachment speaks of the grant of the remedy “at the commencement of the
action or at any time thereafter.” This phrase refers to the date of filing of the complaint which
is the moment that marks “the commencement of the action.” The reference plainly is to a time
before summons is served on the defendant, or even before summons issues. Mangila vs. Court
of Appeals, 387 SCRA 162, G.R. No. 125027 August 12, 2002

The Writ Can Only Be Implemented Once the Court Acquires Jurisdiction Over the Defendant

Furthermore, we have held that the grant of the provisional remedy of attachment involves three
stages: first, the court issues the order granting the application; second, the writ of attachment
issues pursuant to the order granting the writ; and third, the writ is implemented. For the initial
two stages, it is not necessary that jurisdiction over the person of the defendant be first obtained.
However, once the implementation of the writ commences, the court must have acquired
jurisdiction over the defendant for without such jurisdiction, the court has no power and
authority to act in any manner against the defendant. Any order issuing from the Court will not
bind the defendant. Mangila vs. Court of Appeals, 387 SCRA 162, G.R. No. 125027 August 12,
2002

Belated Service of Summons Cannot Cure the Fatal Defect in the Implementation of Writ

Assuming arguendo that the writ of attachment was validly issued, although the trial court later
acquired jurisdiction over the respondents by service of the summons upon them, such belated
service of summons on respondents cannot be deemed to have cured the fatal defect in the
enforcement of the writ. The trial court cannot enforce such a coercive process on respondents
without first obtaining jurisdiction over their person. The preliminary writ of attachment must be
served after or simultaneous with the service of summons on the defendant whether by personal

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service, substituted service or by publication as warranted by the circumstances of the case. The
subsequent service of summons does not confer a retroactive acquisition of jurisdiction over her
person because the law does not allow for retroactivity of a belated service. Torres vs. Satsatin,
605 SCRA 453, G.R. No. 166759 November 25, 2009

All Requisites for the Approval of Bond Must Be Met

The CA correctly found that there was grave abuse of discretion amounting to lack of or in excess
of jurisdiction on the part of the trial court in approving the bond posted by petitioners despite
the fact that not all the requisites for its approval were complied with. In accepting a surety bond,
it is necessary that all the requisites for its approval are met; otherwise, the bond should be
rejected. Torres vs. Satsatin, 605 SCRA 453, G.R. No. 166759 November 25, 2009

Deposit of Real Property is Not an Option to Discharge the Attachment

Section 5 of the same Rule likewise states that “[t]he sheriff enforcing the writ shall without delay
and with all reasonable diligence attach, to await judgment and execution in the action, only so
much of the property in the Philippines of the party against whom the writ is issued, not exempt
from execution, as may be sufficient to satisfy the applicant’s demand, unless the former makes
a deposit with the court from which the writ is issued, or gives a counter-bond executed to the
applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the
value of the property to be attached, exclusive of costs.” From the foregoing, it is evidently clear
that once the writ of attachment has been issued, the only remedy of the petitioners in lifting
the same is through a cash deposit or the filing of the counter-bond. Thus, the Court holds that
petitioner’s argument that it has the option to deposit real property instead of depositing cash
or filing a counter-bond to discharge the attachment or stay the implementation thereof is
unmeritorious. Luzon Development Bank vs. Krishnan, 755 SCRA 358, G.R. No. 203530 April 13,
2015

A Stranger to the Action Whose Property is Attached is Accorded the Remedy of Terceria

Section 14, Rule 57 of the 1997 Rules of Civil Procedure categorically provides specific remedies
to one claiming a right to property attached in a suit in which the claimant is not a party: If the
property attached is claimed by any person other than the party against whom attachment had
been issued or his agent, and such person makes an affidavit of his title thereto, or right to the

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PROVISIONAL REMEDIES

possession thereof, stating the grounds of such right or title, and serves such affidavit upon the
sheriff while the latter has possession of the attached property, and a copy thereof upon the
attaching party, the sheriff shall not be bound to keep the property under attachment, unless the
attaching party or his agent, on demand of the 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 levied upon.
In case of disagreement as to such value, the same shall be decided by the court issuing the writ
of attachment. 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 the 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 filed. Nothing
herein contained shall prevent such claimant to any third person from vindicating his claim to the
property, or prevent the attaching party from claiming damages against a third-party claimant
who filed a frivolous or plainly spurious claim, in the same or a separate action. Florido vs.
Shemberg Marketing Corporation, 474 SCRA 183, G.R. No. 146400 October 25, 2005

PRELIMINARY INJUNCTION

A Preliminary Injunction Can Be Granted at Any Stage Prior to the Judgment

A preliminary injunction is an order granted at any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court, agency or a person to refrain from a
particular act or acts. “It is the ‘strong arm of equity,’ an extraordinary peremptory remedy that
must be used with extreme caution, affecting as it does the respective rights of the parties.” The
sole purpose of which is to preserve the status quo until the merits of the main case can be heard.
It is usually granted to prevent a party from committing an act, or threatening the immediate
commission of an act that will cause irreparable injury or destroy the status quo. Marcelo vs.
Peroxide Phils., Inc., 824 SCRA 91, G.R. No. 203492 April 24, 2017

To be Entitled to an Injunction, the Pleader Should Have Ostensible Right

Before a Writ of Preliminary Injunction may be issued, the concurrence of the following essential
requisites must be present, namely: (a) the invasion of right sought to be protected is material
and substantial; (b) the right of the complainant is clear and unmistakable; and (c) there is an
urgent and paramount necessity for the writ to prevent serious damage. While a clear showing
of the right is necessary, its existence need not be conclusively established. Hence, to be entitled
to the writ, it is sufficient that the complainant shows that he has an ostensible right to the final

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relief prayed for in his complaint. Marcelo vs. Peroxide Phils., Inc., 824 SCRA 91, G.R. No. 203492
April 24, 2017

Injunction is Not Available if Contract Has Already Expired

it is apparent that when the RTC issued its December 1, 2005 Order, petitioner has no more legal
rights under the service contract which already expired on September 15, 2003. Therefore, it has
not met the first vital requisite that it must have material and substantial rights that have to be
protected by the courts. It bears stressing that an injunction is not a remedy to protect or enforce
contingent, abstract, or future rights; it will not issue to protect a right not in esse and which may
never arise, or to restrain an act which does not give rise to a cause of action. There must exist
an actual right. Verily, petitioner cannot lay claim to an actual, clear and positive right based on
an expired service contract. Thunder Security and Investigation. Agency vs. National Food
Authority (Region 1), 654 SCRA 714, G.R. No. 182042 July 27, 2011

No Court Can Compel a Party to Agree to a Contract through an Injunction

Moreover, well-entrenched in this jurisdiction that no court can compel a party to agree to a
contract through the instrumentality of a writ of preliminary injunction. A contract can be
renewed, revived or extended only by mutual consent of the parties. By issuing the assailed
orders most particularly its December 1, 2005 Order, the RTC in effect extended the life of the
parties’ expired contract in clear contravention of our earlier pronouncements. Thunder Security
and Investigation. Agency vs. National Food Authority (Region 1), 654 SCRA 714, G.R. No.
182042 July 27, 2011

An Application for Injunction is Strictly Construed Against the Pleader

Injunction will not protect contingent, abstract or future rights whose existence is doubtful or
disputed. Indeed, there must exist an actual right, because injunction will not be issued to protect
a right not in esse and which may never arise, or to restrain an act which does not give rise to a
cause of action. At any rate, an application for injunctive relief is strictly construed against the
pleader. Delos Santos vs. Metropolitan Bank and Trust Company, 684 SCRA 410, G.R. No.
153852 October 24, 2012

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The Findings of the Court When Issuing the Preliminary Injunction are Interlocutory in Nature

A writ of preliminary injunction is generally based solely on initial and incomplete evidence
adduced by the applicant (herein petitioner). The evidence submitted during the hearing of the
incident is not conclusive, for only a “sampling” is needed to give the trial court an idea of the
justification for its issuance pending the decision of the case on the merits. As such, the findings
of fact and opinion of a court when issuing the writ of preliminary injunction are interlocutory in
nature. Moreover, the sole object of a preliminary injunction is to preserve the status quo until
the merits of the case can be heard. Since Section 4 of Rule 58 of the Rules of Civil Procedure
gives the trial courts sufficient discretion to evaluate the conflicting claims in an application for a
provisional writ which often involves a factual determination, the appellate courts generally will
not interfere in the absence of manifest abuse of such discretion. A writ of preliminary injunction
would become a prejudgment of a case only when it grants the main prayer in the complaint or
responsive pleading, so much so that there is nothing left for the trial court to try except merely
incidental matters. Borlongan vs. Banco de Oro (formerly Equitable PCI Bank), 822 SCRA 418,
G.R. No. 217617, G.R. No. 218540 April 5, 2017

RECEIVERSHIP

Receivership Must Be Granted Only When there is Clear Showing of Necessity

Sec. 1(d), Rule 59 of the Rules of Court is couched in general terms and broad in scope,
encompassing instances not covered by the other grounds enumerated under the said section.
However, in granting applications for receivership on the basis of this section, courts must remain
mindful of the basic principle that receivership may be granted only when the circumstances so
demand, either because the property sought to be placed in the hands of a receiver is in danger
of being lost or because they run the risk of being impaired, and that being a drastic and harsh
remedy, receivership must be granted only when there is a clear showing of necessity for it in
order to save the plaintiff from grave and immediate loss or damage. Tantano vs. Espina-
Caboverde, 702 SCRA 508, G.R. No. 203585 July 29, 2013

Receivership Should Not Deprive a Party in Possession of Property in Litigation

A receiver should not be appointed to deprive a party who is in possession of the property in
litigation, just as a writ of preliminary injunction should not be issued to transfer property in
litigation from the possession of one party to another where the legal title is in dispute and the

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party having possession asserts ownership in himself, except in a very clear case of evident
usurpation. Furthermore, this Court has declared that the appointment of a receiver is not proper
when the rights of the parties, one of whom is in possession of the property, depend on the
determination of their respective claims to the title of such property unless such property is in
danger of being materially injured or lost, as by the prospective foreclosure of a mortgage on it
or its portions are being occupied by third persons claiming adverse title. Tantano vs. Espina-
Caboverde, 702 SCRA 508, G.R. No. 203585 July 29, 2013

REPLEVIN

Replevin is Not Proper If the Plaintiff is No Longer the Owner

In a complaint for replevin, the claimant must convincingly show that he is either the owner or
clearly entitled to the possession of the object sought to be recovered, and that the defendant,
who is in actual or legal possession thereof, wrongfully detains the same.” “Rule 60 x x x allows a
plaintiff, in an action for the recovery of possession of personal property, to apply for a writ of
replevin if it can be shown that he is ‘the owner of the property claimed . . . or is entitled to the
possession thereof.’ The plaintiff need not be the owner so long as he is able to specify his right
to the possession of the property and his legal basis therefor. Considering that he was no longer
the owner or rightful possessor of the subject vehicle at the time he filed Civil Case No. Q-11-
69644 in July 2011, petitioner may not seek a return of the same through replevin. Quite the
contrary, respondent, who obtained the vehicle from Chua and registered the transfer with the
Land Transportation Office, is the rightful owner thereof, and as such, he is entitled to its
possession. Siy vs. Tomlin, 824 SCRA 106, G.R. No. 205998 April 24, 2017

The Applicant Need Not Be the Owner as it Suffices that He is Entitled to the Possession

Petitioner also contends that since the respondent spouses are not the registered owners of the
cargo trucks involved, the writ of replevin should not have been issued. We do not think so. The
provisional remedy of replevin is in the nature of a possessory action and the applicant who seeks
immediate possession of the property involved need not be holder of the legal title to the
property. It suffices, if at the time he applies for a writ of replevin, he is, in the words of Section
2, Rule 60, “entitled to the possession thereof.” Yang vs. Valdez, 177 SCRA 141, G.R. No. 73317
August 31, 1989

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PROVISIONAL REMEDIES

Failure to State the Conditions of the Return is Not Fatal to the Validity of Replevin Bond

The replevin bond put up by Milagros Morante and Bayani L. Calonzo stated that it was given
“under the condition that [they] will pay all the costs, which may be adjudged to the said
defendants and all damages which said defendants may sustain by reason of the order of
replevin, if the court shall finally adjudge that the plaintiffs were not entitled thereto.” We believe
that the condition of the bond given in this case substantially complied with the requirement of
Section 2, Rule 60. Moreover, the provisions of Rule 60, Section 2 of the Revised Rules of Court
under which the replevin bond was given may be regarded as having become part of the bond
and as having been imported thereunto. All the particular conditions prescribed in Section 2, Rule
60, although not written in the bond in printer’s ink, will be read into the bond in determining
the scope and content of the liability of the sureties or bondsmen under that bond. Yang vs.
Valdez, 177 SCRA 141, G.R. No. 73317 August 31, 1989

The Five (5) Day Period to File a Counterbond is Mandatory

A defendant in a replevin suit may demand return of possession of the property replevied by
filing a redelivery bond within the periods specified in Sections 5 and 6 of Rule 60. x x x Under
Section 5, petitioner may “at any time before the delivery of the property to the plaintiff” require
the return of the property; in Section 6, he may do so, “within five (5) days after the taking of the
property by the officer.” Both these periods are mandatory in character. Thus, a lower court
which approves a counterbond filed beyond the statutory periods, acts in excess of its
jurisdiction. In the instant case, the cargo trucks were taken into custody by the Sheriff on 7
January 1985. Petitioner Yang’s counter-replevin bond was filed on 25 January 1985. x x x We
agree with the conclusion of respondent judge that petitioner’s right to file a counterbond had
already prescribed. Yang vs. Valdez, 177 SCRA 141, G.R. No. 73317 August 31, 1989

The Affidavit of Merit May Be Included in the Pleading if All Requirements are Met

Petitioner is correct insofar as it contends that substantial compliance with the affidavit
requirement may be permissible. There is substantial compliance with the rule requiring that an
affidavit of merit support the complaint for replevin if the complaint itself contains a statement
of every fact required to be stated in the affidavit of merit and the complaint is verified like an
affidavit. On the matter of replevin, Justice Vicente Francisco’s Comment on the Rules of Court,
states: “Although the better practice is to keep the affidavit and pleading separate, if plaintiff’s
pleading contains a statement of every fact which the statute requires to be shown in the
affidavit, and the pleading is verified by affidavit covering every statement therein, this will be

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sufficient without a separate affidavit; but in no event can the pleading supply the absence of the
affidavit unless all that the affidavit is required to contain is embodied in the pleading, and the
pleading is verified in the form required in the case of a separate affidavit.” Citibank, N.A. vs.
Court of Appeals, 304 SCRA 679, G.R. No. 61508 March 17, 1999

The Value of the Bond Should Be Based on the Actual Value and Not on the Probable Value

As there was a disagreement on the valuation of the properties in the first place, proper
determination of the value of the bond to be posted by the plaintiff cannot be sufficiently arrived
at. Though the rules specifically require that the needed bond be double the value of the
properties, since plaintiff merely denominated a probable value of P200,000.00 and failed to aver
the properties’ actual value, which is claimed to be much greater than that declared by plaintiff,
the amount of P400,000.00 would indeed be insufficient as found by the Court of Appeals. The
Rules of Court requires the plaintiff to “give a bond, executed to the defendant in double the
value of the property as stated in the affidavit x x x.” Hence, the bond should be double the actual
value of the properties involved. In this case, what was posted was merely an amount which was
double the probable value as declared by the plaintiff and, therefore, inadequate should there
be a finding that the actual value is actually far greater than P200,000.00. Since the valuation
made by the petitioner has been disputed by the respondent, the lower court should have
determined first the actual value of the properties. It was thus an error for the said court to
approve the bond, which was based merely on the probable value of the properties. Citibank,
N.A. vs. Court of Appeals, 304 SCRA 679, G.R. No. 61508 March 17, 1999

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