Provisional Remedies-2020-Guerzo-Barrion-TSN

ATENEO DE DAVAO UNIVERSITY
COLLEGE OF LAW
PROVISIONAL REMEDIES &

SPECIAL CIVIL ACTIONS
FROM THE LECTURES OF:
HON. CATHERINE GUERZO-BARRION
CONTRIBUTORS 2020-2021
ACEVEDO, VAL JOSEPH CONCEPCION, ELAIZZA

ANDAMON, HONEY CHARISH DELGADO, MIKEL HOFILEÑA
AVISADO, SOPHIYA ANNESKA IGBALIC, ANNA LOU
BAJAO, MARK DANIEL LASTIMOSA, ELLA JULES
CAMPANER, FAITH ANGELI PUERTO, KARLO ALEXIE
COBOL, ELLA MARIE REYES, DESIREE MAE
VERANA, CASSANDRA KRISTEL
PROVISIONAL REMEDIES | HON. CATHERINE GUERZO-BARRION 2
Which court has jurisdiction over applications for provisional
PROVISIONAL REMEDIES remedies?
July 7, 2020 – Verana, Cassy Reyes, Desiree It must be filed in the court having jurisdiction over the principal
Puerto, Karlo Alexie Lastimosa, EJ action. Why? Because provisional remedies again, are merely
July incidents to the main action.
Provisional Remedies
A provisional remedy is a collateral proceeding permitted only in May a provisional remedy be made or converted into a
connection with a regular action, and as one of its incidents which permanent remedy?
provides for the present need or for the occasion one adopted to
meet a particular exigency. The legal basis there is Rule 58, Section 9:
Section 9. When Final Injunction Granted. — If after the trial of
Nature of Provisional Remedies the action it appears that the applicant is entitled to have the act or
1. It is an interim remedy. acts complained of permanently enjoined the court shall grant a
It is considered as an interim remedy because these are remedies final injunction perpetually restraining the party or person enjoined
which the parties can resort to for the preservation or the protection from the commission or continuance of the act or acts of confirming
of their rights or interests during the pendency of an action. (Coo the preliminary mandatory injunction.
Tau Co. vs. CA, 162 SCRA 122)
The law provides that a final injunction does not necessarily follow
2. It is merely an ancillary remedy. when a writ of preliminary injunction is issued.
These are remedies which are mere incidents in or are independent
upon the result of the main action. (Silangan Textile Manufacturing Different Provisional Remedies under the Rules of Court
vs. Demetria) 1. Attachment (Rule 57)
2. Preliminary Injunction and Temporary Restraining Order
What is meant by being an ancillary remedy? (Rule 58)
Provisional remedies cannot exist without a main action. For 3. Receivership (Rule 59)
example, you file a collection of sum of money. What is the possible 4. Replevin (Rule 60)
provisional remedy if that is your main action? It depends upon the 5. Support Pendente Lite (Rule 61)
grounds relied upon. If the debtor there is already disposing of his
properties, and you as the plaintiff, you do not have any security, Provisional Remedies in Criminal Cases
that's when you file with the court a collection of sum of money with
a prayer for the issuance of a writ of preliminary attachment. That is based on Rule 127 Section 1:
Section 1. Availability of Provisional Remedies. — The
3. It is merely provisional. provisional remedies in civil actions, insofar as they are applicable,
Provisional means that they constitute temporary measures which may be availed of in connection with the civil action deemed
can be availed of during the pendency of the main action. (Buyco vs. instituted with the criminal action.
Baraquia, 608 SCRA 699)
Provisional Remedies under Special Laws
Basic Principles of Provisional Remedies 1. RA 9262 (VAWC)
▪ Temporary Protection Order (TPO).
1. A provisional remedy is not a civil action, but it is merely a Recall that in order for someone to apply for a TPO, that person
remedy that is attached to the main action. must have a dating relationship like that of a spouse, boyfriend- an
exclusive dating relationship.
In other words, there is no such thing as a "main action for
attachment". 2. RA 9372 (Human Security Act of 1997)
▪ Inspection, Examination of Accounts and Freeze
2. If you have a good cause of action in your principal action, Order
it does not follow that you have a good ground for a ▪ Seizure and Sequestration of Accounts and Assets
provisional remedy. ▪ Restriction of Travel
3. RA 9775 (Anti-Child Pornography Act of 2009)
3. If a provisional remedy is granted, it does not mean that ▪ Protective Order
you are already a winner in your principal or main action. 4. RA 9194 as amended by RA 9160 (Anti-Money Laundering
Act of 2001)
You already know that provisional remedy exists during pendency ▪ Freeze Order
of your principal action.
5. RA 9851 (Philippine Act on Crimes Against International
Can you apply for a provisional remedy if there is already a Humanitarian Law, Genocide, and Other Crimes Against
judgment? Humanity)
One of the provisional remedies under the rules of court, specifically ▪ Protection Orders for victims and witnesses
under Rule 59 (Receivership) can be applied even if there is already
a final judgment. Even if the judgment is final in your principal
action, you can still apply for the provisional remedy of a
receivership.
Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,
Bajao, Campaner, Cobol, ONLINE MANRESA 2020 Lastimosa, Puerto, Reyes, Verana
Provisional Remedies under SC Issuances Legal Basis: Rule 135, Sections 5(g) and 6
A. Provisional Remedies under the Rule on Writ of Amparo See:
(A.M. No. 07-9-12-SC)  Province of Bataan vs. Hon. Villafuerte, Jr. (GR No 129995,
1. Temporary Protection Order 10/19/2001)
2. Inspection Order  Reyes vs Lim (GR No. 134241, 8/11/2003).
3. Production Order
4. Witness Protection Order This is based on jurisprudence.
B. Provisional Remedies under the Rule on Corporate Reyes v. Lim

Rehabilitation (AM. No. 00-8-10-SC) G.R. No. 134241 August 11, 2003
1. Stay Order
2. Receivership Reyes points out that deposit is not among the provisional
remedies enumerated. Reyes stresses the enumeration in the
C. Provisional Remedies under the Rule on Provisional Orders Rules is exclusive. Not one of the provisional remedies in Rules
(A.M. No. 02-11-12-SC) 57 to 61 applies to this case. Reyes argues that a court cannot
1. Spousal Support apply equity and require deposit if the law already prescribes the
a. The spouse can seek support during the specific provisional remedies which do not include deposit. Reyes
pendency of her main action against her invokes the principle that equity is "applied only in the absence
husband. of, and never against, statutory law or judicial rules of procedure."
2. Child Support Reyes adds the fact that the provisional remedies do not include
3. Child Custody deposit is a matter of dura lex sed lex.
4. Visitation Rights
5. Hold Departure Order The instant case, however, is precisely one where there is a hiatus
6. Order of Protection in the law and in the Rules of Court. If left alone, the hiatus will
a. This Order of Protection is akin to the result in unjust enrichment to Reyes at the expense of Lim. The
TPO issued under RA 9262. hiatus may also imperil restitution, which is a precondition to the
7. Administration of Common Property rescission of the Contract to Sell that Reyes himself seeks. This is
a. Under the Family Code. (When you file for not a case of equity overruling a positive provision of law or
annulment, legal separation etc) judicial rule for there is none that governs this particular case.
This is a case of silence or insufficiency of the law and the Rules
EX: The wife filed a case against the husband under RA 9262 because of Court. In this case, Article 9 of the Civil Code expressly
the husband kept physically abusing her. mandates the courts to make a ruling despite the "silence,
obscurity or insufficiency of the laws." This calls for the
What is your remedy? What can you ask for? application of equity, which "fills the open spaces in the law."
You can ask for TPO so that the husband cannot go near you. Under
RA 9262, there is a certain distance where in the event that your Thus, the trial court in the exercise of its equity jurisdiction may
husband gets near you, that can already be considered as contempt validly order the deposit of the P10M payment in court. The
of court. purpose of the exercise of equity jurisdiction in this case is
to prevent unjust enrichment and to ensure restitution.
D. Provisional Remedies under the Rule on Involuntary Equity jurisdiction aims to do complete justice in cases where a
Commitment of Children (A.M. 021-19) court of law is unable to adapt its judgments to the special
1. Guardian Ad Litem of a Child circumstances of a case because of the inflexibility of its statutory
2. Temporary Custody of a Child or legal jurisdiction. Equity is the principle by which substantial
justice may be attained in cases where the prescribed or
E. Provisional remedies under the Rules of Procedure for customary forms of ordinary law are inadequate.
Environmental Cases (A.M. 09-6-8-SC)
The principle that no person may unjustly enrich himself at the
F. Hold Departure Order in Criminal Cases expense of another is embodied in Article 22 of the Civil Code.
This principle applies not only to substantive rights but also to
Please take note of this class what will be the rules that will govern procedural remedies. One condition for invoking this principle is
letter F, because the moment you file a case against an accused, if that the aggrieved party has no other action based on contract,
there is danger that he will evade court cases or the one which is quasi-contract, crime, quasi-delict or any other provision of law.
being filed against him then you can move for the issuance of a Hold Courts can extend this condition to the hiatus in the Rules of
Departure Order against him. Court where the aggrieved party, during the pendency of the
case, has no other recourse based on the provisional remedies of
Other Provisional Remedies the Rules of Court.
Deposit as a provisional remedy while deposit may not be Thus, a court may not permit a seller to retain, pendente lite,
included in the provisional remedies in Rules 57-61 of the Rules of money paid by a buyer if the seller himself seeks rescission of the
Court, this does not mean however that its concept as a provisional sale because he has subsequently sold the same property to
remedy is non-existent. another buyer. By seeking rescission, a seller necessarily offers to
return what he has received from the buyer. Such a seller may
not take back his offer if the court deems it equitable, to prevent Why common requirements?
unjust enrichment and ensure restitution, to put the money in Because these are the requirements you need when seeking
judicial deposit. provisional remedies under the Rules of Court. When we speak of
bond requirement, it answers for damages. All kinds of damages. So
There is unjust enrichment when a person unjustly retains a general rule, affidavit + bond.
benefit to the loss of another, or when a person retains money
or property of another against the fundamental principles of Exempted from Bond Requirement
justice, equity and good conscience. In this case, it was just, 1. Temporary Restraining Order (two kinds: ex parte 72-hour
equitable and proper for the trial court to order the deposit of TRO and 17-day TRO)
the P10M down payment to prevent unjust enrichment by Reyes 2. Support Pendente Lite
at the expense of Lim.
When Damages May Be Recovered from The Bond
Can deposit be considered a provisional remedy? The recovery of damages from the bond on account of improper,
Yes, because of these two cases. SC said here that while deposit may irregular or excessive attachment is governed by Rule 57, Section 20:
not be included in the provisional remedies in Rules 57-61 of the
ROC, this does not mean however that its concept as a provisional Section 20. Claim for Damages On Account Of Improper,
remedy is non-existent. Irregular Or Excessive Attachment. — An application for damages
on account of improper, irregular or excessive attachment must be
The legal basis for saying, cross reference with: filed before the trial or before appeal is perfected or before the
Rule 135 judgment becomes executory, with due notice to the attaching party
Section 5. Inherent Powers of Court. — Every court shall have and his surety or sureties setting forth the facts showing his right to
power: damages and the amount thereof. Such damages may be awarded
g. To amend and control its process and orders so as to make them only after proper hearing and shall be included in the judgment on
conformable to law and justice; the main case.
If the judgment of the appellate court be favorable to the party
Section 6. Means to Carry Jurisdiction into Effect. — When by against whom the attachment was issued he must claim damages
law jurisdiction is conferred on a court or judicial officer, all auxiliary sustained during the pendency of the appeal by filing an application
writs, processes and other means necessary to carry it into effect in the appellate court, with notice to the party in whose favor the
may be employed by such court or officer; and if the procedure to attachment was issued or his surety or sureties, before the judgment
be followed in the exercise of such jurisdiction is not specifically of the appellate court becomes executory. The appellate court may
pointed out by law or by these rules, any suitable process or mode allow the application to be heard and decided by the trial court.
of proceeding may be adopted which appears comfortable to the
spirit of the said law or rules. Nothing herein contained shall prevent the party against whom the
attachment was issued from recovering in the same action the
Deposit Order, Extraordinary Provisional Remedy damages awarded to him from any property of the attaching party
Based on jurisprudence, a deposit order is an extraordinary not exempt from execution should the bond or deposit given by the
provisional remedy whereby money or other property is placed in latter be insufficient or fail to fully satisfy the award.
custodia legis to ensure restitution to whichever is declared thereto
after court proceedings. When to file?
The application for recovery must be filed with the trial court before
To elucidate further, provisional deposit orders can be seen as falling appeal is perfected or before the judgment becomes executory with
under two general categories: due notice to the attaching party and his sureties, setting forth the
facts showing his right to damages and the amount thereof.
1. First Category – the demandability of the money of the
money or other property to be deposited is not, or cannot Where to file?
because of the nature of the relief sought – be contested The claim for damages should be presented in the same action which
by the party-depositor. gave rise to the special proceeding in order that it may be included
2. Second Category – the party-depositor regularly receives in the final judgment of the case. Generally, it cannot be the subject
money or other property from a non-party during the of separate action.
pendency of the case, and the court deems it proper to
place such money or other property in custodia legis We said in the previously that the bond is to answer for all damages
pending final determination of the party truly entitled to which the other party may sustain by reason of the improvident
the same. (Lorenzo Shipping vs Villarin GR. No. 175727, issuance of the writ. So, damages may be recovered from the bond.
March 6, 2019) We will discuss this again later.
Common Requirements for Provisional Remedies Take note of Rule 57 Section 20. So the grounds for recovery:
1. Affidavits of Merit are required to support the issuance 1. Improper
of these remedies, except in receivership. 2. Irregular
2. Generally, a bond to answer for damages by reason of the 3. Excessive attachment
improvident issuance of the writ is required.

Periods to File
1. Before appeal is perfected; or RULE 57 PRELIMINARY ATTACHMENT
2. Before judgment becomes executory provided that the
attaching party as well as his surety/ies are notified.
Section 1
Where To File Grounds Upon Which Attachment May Issue
As a general rule the claim for damages on account of the above At the:
grounds cannot be the subject of a separate action.  commencement of the action or
 at any time before entry of judgment,
GR: It cannot be subject of a separate action because the court that
had acted on the special proceedings which occasioned the A plaintiff or any proper party may have the property of the
damages has the exclusive jurisdiction to assess the damages adverse party attached as security for the satisfaction of any
because of its control of the case. judgment that may be recovered in the following cases:
XPN: Where the principal action is dismissed for lack of jurisdiction (a) In an action for the recovery of a specified amount of
over the subject matter and the court is prevented from rendering money or damages,
any judgment thereon which could include the claim for damages.  other than moral and exemplary,
Such claim will then have to be filed in a separate action. (Santos vs  on a cause of action arising from law, contract, quasi-
CA. et. Al., 95 Phil 360,1954) contract, delict or quasi-delict
 against a party who is about to depart from the
Philippines
 with intent to defraud his creditors;
(b) In an action for money or property embezzled or

fraudulently misapplied or converted to his own use
 by a public officer, or
 an officer of a corporation, or
 an attorney, factor, broker, agent, or clerk,
 in the course of his employment as such, or
 by any other person in a fiduciary capacity, or
 for a willful violation of duty;
(c) In an action to recover the possession of property unjustly

or fraudulently taken, detained or converted, when the
property, or any part thereof, has been concealed, removed, or
disposed of to prevent its being found or taken by the applicant
or an authorized person;
(d) In an action against a party who has been guilty of a fraud

in
 contracting the debt or
 incurring the obligation
 upon which the action is brought, or
 in the performance thereof;
(e) In an action against a party who has removed or disposed

of his property, or is about to do so,
 with intent to defraud his creditors; or
(f) In an action against a party who does

 not reside and is
 not found in the Philippines, or
 on whom summons may be served by publication. (1a)
Writ of Preliminary Attachment

Provisional remedy issued upon the commencement of trial or at any
time before entry of judgment, where an action is pending ordering
the levy of the property or properties of the defendant therein, the
same to be held after by the sheriff as security for the satisfaction of
whatever judgment that might be secured in said action by the
attaching creditor against the defendant.

Please take note: "It goes without saying that whatever be the acts done by the
1. Start of trial Court prior to the acquisition of jurisdiction over the person of
2. During the trial proper defendant - issuance of summons, order of attachment and writ
3. but before entry of judgment of attachment - these do not and cannot bind and affect the
defendant until and unless jurisdiction over his person is
What is important is when is this provisional remedy available. It eventually obtained by the court, either by service on him of
is very clear as provided under Section 1, at the commencement of summons or other coercive process or his voluntary submission
the action or at any time before entry of judgment. to the court’s authority. Hence, when the sheriff or other proper
officer commences implementation of the writ of attachment, it
What is this “before entry of judgment?” is essential that he serve on the defendant not only a copy of the
When after the judgment has been rendered and after the lapse of applicant’s affidavit and attachment bond, and of the order of
the period of filing appeal. attachment, as explicitly required by Section 5 of Rule 57, but also
the summons addressed to said defendant as well as a copy of
Rule 36 Section 2. Entry of Judgments and Final Orders. — If no the complaint."
appeal or motion for new trial or reconsideration is filed within the
time provided in these Rules, the judgment or final order shall Furthermore, we have held that the grant of the provisional
forthwith be entered by the clerk in the book of entries of remedy of attachment involves three stages:
judgments. The date of finality of the judgment or final order shall 1. The court issues the order granting the application;
be deemed to be the date of its entry. 2. The writ of attachment issues pursuant to the order
granting the writ; and
Take note just for emphasis because the period might be confusing. 3. The writ is implemented.
Also read these cases:
For the initial two stages, it is not necessary that jurisdiction over
Mangila vs CA the person of the defendant be first obtained. However, once the
GR No. 125027, August 12, 2002 implementation of the writ commences, the court must have
acquired jurisdiction over the defendant for without such
Improper Issuance and Service of Writ of Attachment jurisdiction, the court has no power and authority to act in any
Petitioner ascribes several errors to the issuance and manner against the defendant. Any order issuing from the Court
implementation of the writ of attachment. Among petitioner’s will not bind the defendant.
arguments are: first, there was no ground for the issuance of the
writ since the intent to defraud her creditors had not been In the instant case, the Writ of Preliminary Attachment was issued
established; second, the value of the properties levied exceeded on September 27 and implemented on October 28. However, the
the value of private respondent’s claim. However, the crux of alias summons was served only on January 26 or almost 3 months
petitioner’s arguments rests on the question of the validity of the after the implementation of the writ of attachment.
writ of attachment. Because of failure to serve summons on her
before or simultaneously with the writ’s implementation, The trial court had the authority to issue the Writ of Attachment
petitioner claims that the trial court had not acquired jurisdiction on September 27 since a motion for its issuance can be filed "at
over her person and thus the service of the writ is void. the commencement of the action." However, on the day the writ
was implemented, the trial court should have, previously or
As a preliminary note, a distinction should be made between simultaneously with the implementation of the writ, acquired
issuance and implementation of the writ of attachment. It is jurisdiction over the petitioner. Yet, as was shown in the records
necessary to distinguish between the two to determine when of the case, the summons was actually served on petitioner
jurisdiction over the person of the defendant should be acquired several months after the writ had been implemented.
to validly implement the writ. This distinction is crucial in
resolving whether there is merit in petitioner’s argument. Private respondent, nevertheless, claims that the prior or
contemporaneous service of summons contemplated in Section
This Court has long settled the issue of when jurisdiction over the 5 of Rule 57 provides for exceptions. Among such exceptions are
person of the defendant should be acquired in cases where a "where the summons could not be served personally or by
party resorts to provisional remedies. A party to a suit may, at any substituted service despite diligent efforts or where the defendant
time after filing the complaint, avail of the provisional remedies is a resident temporarily absent therefrom." Private respondent
under the Rules of Court. Specifically, Rule 57 on preliminary asserts that when she commenced this action, she tried to serve
attachment speaks of the grant of the remedy "at the summons on petitioner but the latter could not be located at her
commencement of the action or at any time thereafter." This customary address in Quezon City or at her new address in
phrase refers to the date of filing of the complaint which is the Pampanga. Furthermore, respondent claims that petitioner was
moment that marks "the commencement of the action." The not even in Pampanga; rather, she was in Guam purportedly on
reference plainly is to a time before summons is served on the a business trip.
defendant, or even before summons issues.
Private respondent never showed that she effected substituted
In Davao Light & Power Co., Inc. v. CA, this Court clarified the service on petitioner after her personal service failed. Likewise, if
actual time when jurisdiction should be had: it were true that private respondent could not ascertain the
whereabouts of petitioner after a diligent inquiry, still she had
some other recourse under the Rules of Civil Procedure.
person of the defendant should be acquired in order to validly

The rules provide for certain remedies in cases where personal implement the writ of attachment upon his person.
service could not be effected on a party. Section 14, Rule 14 of
the Rules of Court provides that whenever the defendant’s This Court has long put to rest the issue of when jurisdiction over
"whereabouts are unknown and cannot be ascertained by diligent the person of the defendant should be acquired in cases where a
inquiry, service may, by leave of court, be effected upon him by party resorts to provisional remedies. A party to a suit may, at any
publication in a newspaper of general circulation ." Thus, if time after filing the complaint, avail of the provisional remedies
petitioner’s whereabouts could not be ascertained after the under the Rules of Court. Specifically, Rule 57 on preliminary
sheriff had served the summons at her given address, then attachment speaks of the grant of the remedy "at the
respondent could have immediately asked the court for service commencement of the action or at any time before entry of
of summons by publication on petitioner. judgment." This phrase refers to the date of the filing of the
complaint, which is the moment that marks "the commencement
Moreover, as private respondent also claims that petitioner was of the action." The reference plainly is to a time before summons
abroad at the time of the service of summons, this made is served on the defendant, or even before summons issues.
petitioner a resident who is temporarily out of the country. This
is the exact situation contemplated in Section 16, Rule 14 In Cuartero v. Court of Appeals, this Court held that the grant
providing for service of summons by publication. of the provisional remedy of attachment involves three stages:
first, the court issues the order granting the application; second,
In conclusion, we hold that the alias summons belatedly served the writ of attachment issues pursuant to the order granting the
on petitioner cannot be deemed to have cured the fatal defect writ; and third, the writ is implemented. For the initial two stages,
in the enforcement of the writ. The trial court cannot enforce such it is not necessary that jurisdiction over the person of the
a coercive process on petitioner without first obtaining defendant be first obtained. However, once the implementation
jurisdiction over her person. The preliminary writ of attachment of the writ commences, the court must have acquired jurisdiction
must be served after or simultaneous with the service of over the defendant, for without such jurisdiction, the court has
summons on the defendant whether by personal service, no power and authority to act in any manner against the
substituted service or by publication as warranted by the defendant. Any order issuing from the Court will not bind the
circumstances of the case. The subsequent service of summons defendant.
does not confer a retroactive acquisition of jurisdiction over
her person because the law does not allow for retroactivity of a Thus, it is indispensable not only for the acquisition of jurisdiction
belated service. over the person of the defendant, but also upon consideration of
fairness, to apprise the defendant of the complaint against him
Torres, et al. v. Satsatin, et al and the issuance of a writ of preliminary attachment and the
GR 166759, November 25, 2009 grounds therefor that prior or contemporaneously to the serving
of the writ of attachment, service of summons, together with a
There was grave abuse of discretion amounting to lack of or in copy of the complaint, the application for attachment, the
excess of jurisdiction on the part of the trial court in approving applicant’s affidavit and bond, and the order must be served
the bond posted by petitioners despite the fact that not all the upon him.
requisites for its approval were complied with. In accepting a
surety bond, it is necessary that all the requisites for its In the instant case, assuming arguendo that the trial court validly
approval are met; otherwise, the bond should be rejected. issued the writ of attachment on November 15, which was
implemented on November 19, it is to be noted that the
Every bond should be accompanied by a clearance from the summons, together with a copy of the complaint, was served only
Supreme Court showing that the company concerned is qualified on November 21.
to transact business which is valid only for 30 days from the date
of its issuance. However, it is apparent that the Certification At the time the trial court issued the writ of attachment on
issued by the OCA at the time the bond was issued would clearly November 15, it can validly to do so since the motion for its
show that the bonds offered by Western Guaranty may be issuance can be filed "at the commencement of the action or at
accepted only in the RTCs of the cities of Makati, Pasay, and any time before entry of judgment." However, at the time the writ
Pasig. Therefore, the surety bond issued by the bonding was implemented, the trial court has not acquired jurisdiction
company should not have been accepted by the RTC of over the persons of the respondent since no summons was yet
Dasmariñas, since the certification secured by the bonding served upon them. The proper officer should have previously or
company from the OCA at the time of the issuance of the bond simultaneously with the implementation of the writ of
certified that it may only be accepted in the above-mentioned attachment, served a copy of the summons upon the
cities. Thus, the trial court acted with grave abuse of discretion respondents in order for the trial court to have acquired
amounting to lack of or in excess of jurisdiction when it issued jurisdiction upon them and for the writ to have binding effect.
the writ of attachment founded on the said bond. Consequently, even if the writ of attachment was validly issued,
it was improperly or irregularly enforced and, therefore, cannot
Moreover, in provisional remedies, particularly that of bind and affect the respondents.
preliminary attachment, the distinction between the issuance and
the implementation of the writ of attachment is of utmost Moreover, although there is truth in the petitioners’ contention
importance to the validity of the writ. The distinction is that an attachment may not be dissolved by a showing of its
indispensably necessary to determine when jurisdiction over the irregular or improper issuance if it is upon a ground which is at
the same time the applicant’s cause of action in the main case, the defendant, with notice to the applicant and after hearing, if it
since an anomalous situation would result if the issues of the appears that the attachment was improperly or irregularly issued
main case would be ventilated and resolved in a mere hearing of (Sec. 13, Rule 57).
a motion. However, the same is not applicable in the case bar. It
is clear from the respondents’ pleadings that the grounds on If an attachment is excessive, the remedy of the defendant is to
which they base the lifting of the writ of attachment are the apply to the court for a reduction or partial discharge of the
irregularities in its issuance and in the service of the writ; not attachment, not the total discharge and substitution of the
petitioners’ cause of action. attached properties. The reason for this is that the lien acquired
by the plaintiff-creditor as of the date of the original levy would
Further, petitioners’ contention that respondents are barred by be lost. It would in effect constitute a deprivation without due
estoppel, laches, and prescription from questioning the orders of process of law of the attaching creditors' interest in the attached
the RTC issuing the writ of attachment and that the issue has property as security for the satisfaction of the judgment which he
become moot and academic by the renewal of the attachment may obtain in the action.
bond covering after its expiration, is devoid of merit.
By ordering the substitution, the Court obliterated the
There are two ways of discharging the attachment. petitioners' earlier lien under the original attachment and in
1. To file a counter-bond in accordance with Section 12 of effect deprived the petitioners of their interest in the attached
Rule 57. properties without due process of law.
2. To quash the attachment on the ground that it was
irregularly or improvidently issued, as provided for in The substitution of properties was done in bad faith to defeat
Section 13 of the same rule. the petitioners' chances of collecting their claims against both
defendants. The two properties were released from the
Whether the attachment was discharged by either of the two attachment without substituting other property for them. The
ways indicated in the law, the attachment debtor cannot be court arbitrarily allowed Villarosa's properties to be replaced with
deemed to have waived any defect in the issuance of the properties of FINASIA, an insolvent corporation under
attachment writ by simply availing himself of one way of receivership, against whom actions have been suspended.
discharging the attachment writ, instead of the other. The
filing of a counter-bond is merely a speedier way of discharging The new owners of the released properties may not claim to be
the attachment writ instead of the other way. innocent purchasers for value because the deeds of sale in their
favor were executed before the court had ordered the
Moreover, again assuming arguendo that the writ of attachment substitution or discharge of the attachment. They are bound by
was validly issued, although the trial court later acquired the attachment as if it was not discharged at all.
jurisdiction over the respondents by service of the summons
upon them, such belated service of summons on respondents The grounds for the dissolution of an attachment are fixed in the
cannot be deemed to have cured the fatal defect in the Rules of Court and the power of the court to dissolve an
enforcement of the writ. The trial court cannot enforce such a attachment is limited to the grounds specified therein. Before an
coercive process on respondents without first obtaining attachment lien will be deemed abandoned there must be an
jurisdiction over their person. The preliminary writ of attachment affirmative act or conduct of the creditor inconsistent with the
must be served after or simultaneous with the service of continuance of the lien. The fact that more property has been
summons on the defendant whether by personal service, attached than an amount sufficient to satisfy the recovery of
substituted service or by publication as warranted by the an action is not a ground for dissolution.
circumstances of the case. The subsequent service of summons
does not confer a retroactive acquisition of jurisdiction over her The law provides under Section 1 that you can avail of these
person because the law does not allow for retroactivity of a remedies at the commencement of the action/proceeding.
belated service.
What is meant by commencement of the action/proceeding?
NOTE: The writ of attachment is substantially a writ of execution The date the complaint is filed. Under the Rules it is personal but
except that it emanates at the beginning, instead of at the because of this COVID filing an action is allowed through electronic
termination, of a suit. It places the attached properties in custodia means. But if there’s no COVID you go to the court and physically
legis, obtaining pendente lite a lien until the judgment of the proper file your complaint and that will be stamped by the clerk of court. It
tribunal on the plaintiff's claim is established, when the lien becomes refers to the date of the filing of the complaint and even before
effective as of the date of the levy. summons is served on defendant.
Santos v. Aquino, Jr. Types of Attachment

G.R. Nos. 86181-82 January 13, 1992 1. Preliminary Attachment
2. Final Attachment/Levy in Execution
There is no rule allowing substitution of attached property 3. Garnishment – a means by which plaintiff seeks to subject
although an attachment may be discharged wholly or in part to his claim property of the defendant in the hands of 3rd
upon the security of a counterbond offered by the defendant persons or money owed by such 3rd persons who is known
upon application to the court, with notice to, and after hearing, as the garnishee.
the attaching creditor (Sec. 12, Rule 57), or upon application of

There are different types of attachment. When we talk about have to convert that in personam action to an action in rem or quasi
provisional remedy we are talking about preliminary attachment in rem. How do we convert a personal action to an action in rem or
defined under Section 1 Rule 57. With respect to garnishment, take quasi in rem?
note that it is part of attachment.
You look for any property of the defendant and that’s where
Preliminary Attachment Garnishment preliminary attachment goes into play. In attaching the defendant’s
Involves 2 persons: only the Involves 3 persons: obligee, property, you are effectively converting the action from in personam
plaintiff and defendant obligor and garnishee to in rem or quasi in rem.
Property attached is actually There is no actual seizure
seized and taken into actual Was the court able to acquire jurisdiction over the person of the
custody defendant?
No. However, since the court was able to acquire jurisdiction over
EX: The only property left with the debtor is a car. When the sheriff the res by converting the action in personam to an action in rem or
enforces the writ of attachment, he will physically get/seize the car quasi in rem, there is no need to acquire jurisdiction over the
because there is actual seizure. person of the defendant. You do not even need to serve summons
to the defendant since the court already has acquired jurisdiction
For emphasis with respect to when can this remedy be availed of: over the res.
commencement of trial or at any time before entry of judgment.
How is a writ of preliminary attachment implemented?
Can you apply for the issuance of the preliminary attachment The writ issued is executed by a sheriff attaching and safely keeping
even on appeal? the movable property of the defendant by annotating upon the
Yes. Because the case is still pending and there is no judgment yet. record of the Register of Deeds a copy of the order with a notice
Because, under the law, a preliminary attachment is available at any and description of the property attached to an extent as may be
time before entry of judgment. sufficient to satisfy the plaintiff’s demands.
What is the remedy if the judgment is already final and Nature of a Writ of Preliminary Attachment
executory? Preliminary Attachment, being a provisional remedy is purely
The remedy for this is to execute the judgment. The remedy is statutory. It does not exist unless granted by the statute. It is not
execution and not preliminary attachment. But again, on appeal, you available except in those cases where the statute expressly permits.
can still avail a writ of preliminary attachment. For this purpose, the party seeking an attachment must show that a
sufficient cause of action exists and that the amount due him is as
Purpose of Preliminary Attachment much as the sum for which the order of attachment is sought.
(General vs. De Venecia, 73 Phil 780)
1. To secure the satisfaction of any judgment that may be
recovered in payment of the pecuniary obligation contracted The enumeration under Section 1, Rule 57 is exclusive. There shall
by a person or believed to have been contracted by him, either also be affidavits to support its cause of action, as well as the
by virtue of a civil obligation emanating from contract or from amounts sought to be collected.
law, or by virtue of some crime or misdemeanor that he might
have committed. Strict Compliance with the Rule
2. To secure a contingent lien on defendant’s property until The rule on the issuance of a writ of preliminary attachment must be
plaintiff can, by appropriate proceedings, obtain a judgment construed strictly against the applicant and in favor of the
and have such property applied to its satisfaction, or to make defendant. If all the requisites for the issuance of the writ are not
some provision for unsecured debts in cases where the means present, the court which issues it acts in excess of jurisdiction. It
of satisfaction thereof are liable to be removed beyond the should be issued only on concrete and specific grounds. An order of
jurisdiction, or improperly disposed of, or concealed or attachment cannot be issued on a general averment, such as one
otherwise placed beyond the reach of creditors. ceremoniously quoting from a pertinent rule.
 Plaintiff’s security against the defendant
3. To enable the court to acquire jurisdiction over the action In the case of Philippine Bank of Communications vs. Court of
by the actual or constructive seizure of the property in those Appeals and Filipinas Textile Mills (352 SCRA 616), the Court said that
instances where personal service of summons on the creditor there were no factual allegations as to how the fraud alleged by
cannot be effected (Philippine International Commercial Bank petitioner was committed. Again, it lacks particulars upon which the
vs. Alejandro, 533 SCRA 738) Court can discern whether or not a writ of attachment be issued.
EX: Collection for sum of money (which is an action in personam). Rationale Behind the Rule
The plaintiff files a case against the defendant. However, during the A preliminary attachment is a rigorous remedy which exposes the
pendency of the case and before the service of summons upon the debtor to humiliation and annoyance, such that it should not be
person of the defendant, he flew outside the Philippines. We all abused to cause unnecessary prejudice. It is, therefore, the duty of
know that if it is an action in personam, we cannot enforce our writs the Court, before issuing the writ, to ensure that all the requisites of
outside the Philippines. What do we do? the law have been complied with. Otherwise, the judge acts in excess
of his jurisdiction and the writ so issued shall be null and void (Sievert
Citing the leading case of Magdalena Estate vs. Myrick (G.R. No. vs. Court of Appeals [168 SCRA 692], Sps. Salgado vs. Court of Appeals
L-47774), the Court said that when it is an action in personam, you [128 SCRA 395], and Salas vs. Adil [90 SCRA 121]).
Maritime Lien vs. Attachment Grounds for the Writ of Preliminary Attachment
Maritime Lien Attachment a) In action for the recovery of a specified amount of money or
A maritime lien exists in A writ of preliminary attachment damages against a party who is about to depart from the
accordance with the provisions is issued precisely to create a Philippines and with intent to defraud credits.
of the Ship Mortgage Decree lien. When a party is effectively
(PD 1521). It is enforced by filing asking the court to attach a This ground for preliminary attachment speaks of money. Even
a proceeding in court. When a property and hold it liable for though the amount is unliquidated, an application for writ of PA is
maritime lien exists, this means any judgment that the court may allowed. It also speaks of damages.
that the party in whose favor render in his or her favor. This is
the lien was established may similar to what a lien does. It What kind of damages?
ask the court to enforce it by functions as a security for the
All kinds of damages except moral and exemplary damages. So all
ordering the sale of the payment of an obligation.
kinds of liquidated damages.
subject property.
An attachment proceeding is
for the purpose of creating a
The leading case is KO Glass Construction Company Inc. vs.
lien on the property to serve Valenzuela (116 SCRA 568), where the plaintiff merely stated that
as security for the payment of the defendant was a foreigner but there was no showing, much less
the creditor’s claim. Hence, an allegation, that the defendant was about to depart from the
where the lien already exists, Philippines with intent to defraud his creditors, or that he was a non-
as in a maritime lien, the same resident alien. Thus, the attachment of properties was not justified.
is already equivalent to an
attachment. What if the defendant is in the verge of insolvency? Can you
(Tsuneishi Heavy Industries vs. MIS Maritime, G.R. No. 193572) apply for a preliminary attachment?
No. Pursuant to the ruling of the Court in Aboitiz v. Cotobato Bus
Attachment to Acquire Jurisdiction Over the Res Line, mere insolvency does not entitle a party to apply for a
When the case instituted is an action in rem or quasi in rem, preliminary attachment.
Philippine Courts have jurisdiction to hear and decide the case
because in actions in rem and quasi in rem, jurisdiction over the b) In an action involving embezzlement or fraudulently misapplied
person of the defendant is not a prerequisite to confer jurisdiction or converted money or property.
on the Court, provided that the Court acquires jurisdiction over the
res. Main Action: Malversation or estafa cases.
“Thus, if an action is in rem or quasi in rem, extraterritorial service of This shows that we can apply the rules on provisional remedies in
summons can be made to the defendant. The said extraterritorial criminal cases. With regard to (b) it must be substantiated and must
service of summons is not for the purpose of vesting the Court be based in concrete and specific grounds. Why? Because the
with the jurisdiction, but for the purpose of complying with the issuance of preliminary attachment is strictly construed against the
requirements of due process so that the defendant will be applicant.
informed of the pendency of the action against him and the
possibility that his property in the Philippines may be subjected to a c) In an action to recover possession of fraudulently taken property.
judgment in favor of plaintiff, and the said defendants can thereby
take steps to protect his interests” (Magdalena Estate vs. Myrick; and What kind of property?
Perkin Elmer Singapore vs. Dakila Trading 530 SCRA 170). Both personal and real property.
Stages in the Issuance of the Writ You have to distinguish (c) from Rule 60 or the Rule on Replevin.
Assuming that all the requisites of the law are complied with: Under Rule 60 the plaintiff there seeks to recover personal property.
 First Stage: The court issues the order granting the While (c) here involves both real and personal property.
application.
 Second Stage: The writ of attachment issues pursuant to d) In an action involving fraud in contracting the debt or incurring
the order granting the application. or performing an obligation.
 Third Stage: Writ is implemented.
This speaks of dolo causante and/or dolo incidente.
Does the court immediately issue the writ?
No. You must first file an action in court plus a prayer for the The fraud in contracting the debt or incurring the obligation must
issuance of a writ of preliminary attachment. relate to the execution of the agreement and must have been the
reason which induced the other party into giving consent, which
Can a writ of preliminary attachment be issued ex parte? he would not have otherwise given. To constitute a ground for
Yes. It can be issued ex parte, meaning there is no need for hearing. attachment under Section 1(d), fraud should be committed upon the
However, you have to follow the stages. contracting the obligation sued upon. (Metro Inc. vs. Lara’s Gifts and
Decors 606 SCRA 175)
It is justified when the writ is issued ex parte to avoid the defendant
from absconding before the writ is issued, for both ex parte and on
motion and hearing.
In this case, a debt is fraudulently contracted if at the time of jurisdiction on the court, provided that the court acquires
contracting it the debtor has a preconceived plan or intention not jurisdiction over the res
to pay, as it is in this case.
Section 2
Ng Wee vs. Tan Kiang Se (545 SCRA 263) Issuance and Contents of Order
The applicant must sufficiently show the factual circumstances of the An order of attachment may be issued either
alleged fraud because fraudulent intent cannot be inferred from the 1. ex parte or upon motion
debtor’s non-payment of the debt or failure to comply his obligation. 2. with notice and hearing by the court in which the action
is pending, or
How about fraud in the performance of an obligation or 3. by the Court of Appeals or the Supreme Court, and
subsequent fraud?
Yes. It is covered by letter d. Must require the sheriff of the court to attach so much of the
property in the Philippines of the party against whom it is issued,
Security Bank v. Great Wall Commercial Press Company  not exempt from execution,
While fraud cannot be presumed, it need not be proved by direct  as may be sufficient to satisfy the applicant's demand,
evidence and can well be inferred from attendant circumstances, to
warrant issuance of writ of attachment. Unless such party makes
 deposit or gives a bond as hereinafter provided
Fraud by its nature is not a thing susceptible of ocular observation  in an amount equal to that fixed in the order,
or readily demonstrable physically; it must of necessity be proved in  which may be the amount sufficient to satisfy the
many cases by inferences from circumstances shown to have been applicant's demand or the value of the property to be
involved in the transaction in question. attached as stated by the applicant, exclusive of costs.
The present case, however, only deals with the civil fraud in the Several writs may be issued at the same time to the sheriffs of
noncompliance with the trust receipts to warrant the issuance of a the courts of different judicial regions. (2a)
writ of preliminary attached. A fortiori, in a civil case involving a trust
receipt, the entrustee's failure to comply with its obligations under NOTE: An order of attachment may be issued either ex parte or upon
the trust receipt constitute as civil fraud provided that it is alleged, motion with notice and hearing.
and substantiated with specificity, in the complaint, its attachments
and supporting evidence. Why is it allowed ex parte?
In the case of Cuartero v. Court of Appeals, a hearing of the case
How do you allege fraud? would render nugatory the purpose of the provisional remedy. Thus,
You recite the circumstances which would show fraud which you can the trial court may grant the writ of preliminary attachment even
do through circumstantial allegations. before the defendant is summoned.
e) In an action against a party who has, or is about to remove or If it is upon motion, there should be notice and hearing. Aside from
dispose of his property, to defraud creditors. this, there should be valid service of summons which must first be
made on defendant.
Self-explanatory provision. The removal or disposal per se is not
ground for PA. Rather the removal or disposal must be with intent Who issues or by whom issued?
to defraud the creditors. An order of attachment may be issued by the court in which the
action is pending or by the Court of Appeals or the Supreme Court.
f) In an action against a non-resident defendant who is not found in
the Philippines. How about circuit courts?
Yes, even the lower courts (MTC, MTCC, RTC). They can issue
GR: Summons should be served to acquire jurisdiction over the provided that the main action falls within their jurisdiction.
person of the defendant.
NOTE: If it is issued by the MTC or RTC, the writ of PA is only
XPN: enforceable within its territorial jurisdiction. If issued by the CA or
1. When summons could not be served personally or by SC, it is enforceable anywhere in the Philippines.
substituted service despite diligent efforts
2. When defendant is a resident of the Philippines but Uy v. Court of Appeals
temporarily absent therefrom Even if appeal had been perfected, the trial court can still issue a writ
3. When defendant is a non-resident of attachment. The trial court may even issue orders for the
4. When action is in rem or quasi in rem protection and preservation of the rights of the parties which do not
involve any matter litigated by the appeal.
Perkin Elmer v. Dakila
When the case instituted is an action in rem or quasi in rem, What are the contents of a writ of preliminary attachment?
Philippine courts already have jurisdiction to hear and decide the The order shall require the sheriff to attach property in the
case because, in actions in rem and quasi in rem, jurisdiction over Philippines of the party against whom it is issued which is not
the person of the defendant is not a prerequisite to confer exempt from execution as may be sufficient to satisfy the applicant’s

demand unless such party makes a deposit or gives a bond in the is as much as the sum for which the order is granted above
amount fixed in the order. all legal counterclaims.
The principle there is that, all properties that are exempt from The affidavit, and the bond required by the next succeeding
execution are also exempt from attachment. section, must be duly filed with the court before the order issues.
What are the properties exempt from execution?

What are the contents of the affidavit?
Rule 39 Section 13. Property Exempt from Execution. — Except
 That there is a sufficient cause of action
as otherwise expressly provided by law, the following property, and
 That the case is one mentioned in Rule 57, Section 1
no other, shall be exempt from execution:
 That there is no sufficient security for the claim sought to be
(a) The judgment obligor's family home as provided by law, or the
enforced by the action.
homestead in which he resides, and land necessarily used in
Note: If your claim is secured by a mortgage, you
connection therewith;
cannot avail of this remedy because you have sufficient
(b) Ordinary tools and implements personally used by him in his
security. Primary purpose of a mortgage is to secure the
trade, employment, or livelihood;
obligation.
(c) Three horses, or three cows, or three carabaos, or other beasts
 That the amount due to the applicant is as much as the sum
of burden, such as the judgment obligor may select necessarily
for which the order is granted among all legal counterclaims.
used by him in his ordinary occupation;
Note: Merely ceremonial. The first three are more
(d) His necessary clothing and articles for ordinary personal use,
important.
excluding jewelry;
(e) Household furniture and utensils necessary for housekeeping,
Solidbank Triangle Sales v. Sheriff of RTC
and used for that purpose by the judgment obligor and his
Even if there is no separate affidavit of the applicant for preliminary
family, such as the judgment obligor may select, of a value not
attachment is filed there is sufficient compliance provided that the
exceeding one hundred thousand pesos;
required allegations are already incorporated in a verified complaint.
(f) Provisions for individual or family use sufficient for four months;
(g) The professional libraries and equipment of judges, lawyers,
La Granja vs. Samson (1993)
physicians, pharmacists, dentists, engineers, surveyors,
Whether or not the affidavit sufficiently established facts therein
clergymen, teachers, and other professionals, not exceeding
stated is a question to be determined by the court in the exercise of
three hundred thousand pesos in value;
its sound discretion. The mere filing of an affidavit reciting the facts
(h) One fishing boat and accessories not exceeding the total value
required by the above provision is not sufficient to compel the judge
of one hundred thousand pesos owned by a fisherman and by
to grant the writ. It all depends upon the amount of credit given by
the lawful use of which he earns his livelihood;
it by the judge, who may accept or reject it in the exercise of his
(i) So much of the salaries, wages, or earnings of the judgment
discretion.
obligor for his personal services within the four months
preceding the levy as are necessary for the support of his family;
Assume that your application for preliminary attachment was
(j) Lettered gravestones;
denied. What is your remedy?
(k) Monies, benefits, privileges, or annuities accruing or in any
The remedy is certiorari on the ground of grave abuse of discretion.
manner growing out of any life insurance;
It cannot be appealed because it is merely an interlocutory order.
(l) The right to receive legal support, or money or property
obtained as such support, or any pension or gratuity from the July 14, 2020 – Anna Lou Igbalic
Government;
Section 4. Condition of Applicant's Bond. — The party applying
(m) Properties specially exempted by law.
for the order must thereafter give a bond executed to the adverse
party in the amount fixed by the court in its order granting the
But no article or species of property mentioned in this section shall
issuance of the writ, conditioned that the latter will pay all the costs
be exempt from execution issued upon a judgment recovered for its
which may be adjudged to the adverse party and all damages which
price or upon a judgment of foreclosure of a mortgage thereon.
he may sustain by reason of the attachment, if the court shall finally
(12a)
adjudge that the applicant was not entitled thereto. (4a)
Section 3
Applicant’s Bond
Affidavit and Bond Required
The applicant shall give a bond executed to the adverse party in the
An order of attachment shall be granted only when it appears by
amount fixed by the court, conditioned that the applicant will pay:
the affidavit of
a. All costs which may be adjudged to the adverse party; and
 the applicant, or of
b. All damages which the adverse party may sustain by
 some other person who personally knows the facts,
reason of the attachment, if the court shall finally adjudge
that the applicant was not entitled thereto.
That a:
1. sufficient cause of action exists,
NOTE: The applicant’s bond should not exceed the plaintiff’s claim.
2. that the case is one of those mentioned in section 1 hereof,
All damages include nominal and temperate damages.
3. that there is no other sufficient security for the claim sought
to be enforced by the action, and
4. that the amount due to the applicant, or the value of the
property the possession of which he is entitled to recover,
Hanil Development v. Court of Appeals (3) the writ of attachment was declared illegal; and
Exemplary damages may be awarded when the attachment is (4) the application for judgment against the attachment bond was
established to be maliciously made. made with notice to the insurer, Sanpiro Insurance Corporation.
Hanil Development vs. IAC (1986) Therefore, the IAC committed GAD in denying the application for
FACTS: Escobar Explosives filed a complaint for recovery of sum of judgment against attachment bond.
money with damages against Hanil Dev’t. Co. The complaint sought
to compel Hanil to pay for the blasting services rendered by Escobar General Rule: Attachment can be issued ex parte, before acquisition
in connection with the former's contract. of jurisdiction over the person of the defendant.
Escobar filed petition for issuance of preliminary attachment. TC In the first two stages, jurisdiction over the defendant is not
granted petition for issuance of preliminary attachment. Writ was necessary. But once the writ is implemented by the sheriff, it is
enforced and the bank accounts of Hanil were garnished and its necessary that the court acquires jurisdiction over the defendant, by
equipment attached. serving the summons and attaching the property.
Hanil filed with IAC a petition for certiorari with prayer of prohibition,
injunction and preliminary restraining order. IAC restrained the Section 5. Manner of attaching property. — The sheriff enforcing
the writ shall without delay and with all reasonable diligence attach,
enforcement of the orders and after hearing, issued a preliminary
injunction enjoining the implementation of said orders upon the 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
filing of a P50K cash bond by Hanil. Subsequently, the challenged
orders were declared null and void, having been issued with GAD. 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
Hanil filed an "Application for Judgment against Attachment Bond"
praying for a hearing before the IAC so it could prove the damages 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
it sustained as a result of the illegal writ of attachment issued by the
TC. to be attached, exclusive of costs. No levy on attachment pursuant
to the writ issued under section 2 hereof shall be enforced unless it
ISSUE: WON the application for judgment against attachment bond is preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint, the application for
of Hanil should be granted?
attachment the applicant's affidavit and bond, and the order and
writ of attachment, on the defendant within the Philippines.
HELD: Yes. The application for judgment against attachment bond
was filed to prove the damages sustained by Hanil as a result of the
illegal writ of attachment issued by the TC so that the judgment The requirement of prior or contemporaneous service of summons
against the attachment bond posted by Escobar and its insurer could shall not apply where the summons could not be served personally
be included in the final judgment of the main case. The assessment or by substituted service despite diligent efforts, or the defendant is
and award of such damages could not have been made as alleged a resident of the Philippines temporarily absent therefrom, or the
by Escobar because the question therein was WON the writ of defendant is a non-resident of the Philippines, or the action is one
attachment in Civil Case should have been issued. in rem or quasi in rem. (5a)
The object was to set aside the preliminary attachment immediately. Regarding the manner of attaching the property, what may be
It was a preventive measure. attached by the sheriff?
The sheriff, in enforcing the writ, shall only attach only so much of
Contrary to the claim of Escobar, this writ of attachment issued by the property in the Philippines of the adverse party that is not
the TC was executed. Hanil’s equipment and bank accounts were exempt from executions as may be sufficient to satisfy the
garnished pursuant to the writ. In fact, Escobar’s opposition to applicant’s demand.
Hanil’s MR of the TC’s order which issued the writ of attachment
stated that the same should be denied for being moot and academic What is the rule on prior or contemporaneous jurisdiction?
"because the writ of attachment and/or garnishment have already The rule on prior or contemporaneous jurisdiction means that the
been executed." levy on the property, pursuant to the writ, may not be validly
effected unless preceded or contemporaneously accompanied by
Considering that the writ of attachment was declared null and service on the defendant of summons. Otherwise the levy is void.
void, Hanil had the right to ask for whatever damages it may
have incurred as a result of its issuance pursuant to Section 20, Rule What should be served on the defendant?
57 of the Revised Rules of Court. 1. copy of the Summons
2. copy of the complaint
In the instant case, the application for judgment against the 3. application for attachment
attachment bond was filed under the following circumstances: 4. plaintiff’s affidavit and attachment bond
(1) the writ of attachment was issued by the trial court after it had 5. order and writ of attachment
rendered its decision and after Hanil had already perfected its
appeal;
(2) Escobar posted a surety bond to answer for any damages that
may be adjudged to Hanil if the writ is later found to be illegal;
Rationale Behind the Rule should be acquired in order to validly implement the writ of
attachment upon his person.
Torres et al v. Satsatin
(GR 166759 citing Cuartero v. CA GR 102448) In Cuartero v. Court of Appeals, this Court held that the grant of
It is indispensable, not only for the acquisition of jurisdiction over the provisional remedy of attachment involves three stages: first, the
the person of the defendant but also upon consideration of fairness, court issues the order granting the application; second, the writ of
to apprise the defendant of the complaint against him and the attachment issues pursuant to the order granting the writ; and third,
issuance of a writ of preliminary attachment and the grounds the writ is implemented. For the initial two stages, it is not necessary
therefor that prior to, or contemporaneously with the serving of the that jurisdiction over the person of the defendant be first obtained.
writ of attachment, defendant is served the summons, a copy of the However, once the implementation of the writ commences, the
complaint, the application for attachment the applicant’s affidavit court must have acquired jurisdiction over the defendant, for
and bond and the order. without such jurisdiction, the court has no power and authority to
act in any manner against the defendant. Any order issuing from the
Torres v. Satsatin Court will not bind the defendant.
GR 166759 | November 25, 2009 | J. Peralta
“belated service of summons on respondents cannot be deemed to At the time the trial court issued the writ, it can validly do so since
have cured the fatal defect in the enforcement of the writ. The trial the motion for its issuance can be filed “at the commencement of
court cannot enforce such a coercive process on respondents without the action or at any time before entry of judgment.” However, at the
first obtaining jurisdiction over their person. The preliminary writ of time the writ was implemented, the trial court has not acquired
attachment must be served after or simultaneous with the service of jurisdiction over the persons of the respondent since no
summons on the defendant whether by personal service, substituted summons was yet served upon them. The proper officer should
service or by publication as warranted by the circumstances of the have previously or simultaneously with the implementation of the
case.” writ of attachment, served a copy of the summons upon the
respondents in order for the trial court to have acquired jurisdiction
FACTS: Siblings Torres each owned adjacent tracks of land. Nicanor, upon them and for the writ to have binding effect. Consequently,
was able to convince the siblings to sell their property and authorize even if the writ of attachment was validly issued, it was improperly
him via SPA, to negotiate for its sale. Nicanor offered to sell the or irregularly enforced and, therefore, cannot bind and affect the
properties to Solar Resources, to which Solar allegedly agreed. respondents.
Petitioners claimed that Solar has already paid the entire purchase
price, however Nicanor only remitted P9M out of the P28M sum they Although the trial court later acquired jurisdiction over the
are entitled to and that Nicanor had acquired a house and lot and a respondents by service of the summons upon them, such belated
car (which he registered in the names of his children). Despite the service of summons on respondents cannot be deemed to have
repeated verbal and written demands, Nicanor failed to remit the cured the fatal defect in the enforcement of the writ. The trial
balance prompting the petitioners to file a complaint for sum of court cannot enforce such a coercive process on respondents
money against the family Satsatin. without first obtaining jurisdiction over their person. The preliminary
writ of attachment must be served after or simultaneous with the
Petitioners filed an Ex Parte Motion for the Issuance of a Writ of service of summons on the defendant whether by personal service,
Attachment, alleging among other things, that respondent was substituted service or by publication as warranted by the
about to depart the country and that they are willing to post a bond circumstances of the case. The subsequent service of summons does
fixed by court. After filing a Motion for Deputation of Sheriff, which not confer a retroactive acquisition of jurisdiction.
the RTC granted, it issued a Writ of Attachment (WOA). On After
serving a copy of the WOA upon Nicanor, the sheriff levied their real Zachary Company v. CA (232 SCRA 329)
and personal properties. On November 21, the summons and copy Service of summons should be valid. When a foreign corporation
of complaint was served upon the respondents. Respondents filed has designated a person to receive service of summons pursuant to
their answer and a Motion to Discharge Writ of Attachment, the Corporation Code, that designation is exclusive and service of
claiming, among others, that, the WOA was issued before the summons on any other person is inefficacious.
summons was received.
General Rule: Prior or Contemporaneous service of summons
ISSUE: Whether the RTC was guilty of GADALEJ in the issuance and Exceptions:
implementation of the WOA? 1. When summons could not be served personally or by
substituted service despite diligent efforts
HELD: Yes. In the case at bar, there was grave abuse of discretion in 2. When the defendant is a resident of the Philippines
approving the bond posted by petitioners despite the fact that not temporarily absent therefrom
all the requisites for its approval were complied with. In accepting a 3. When the defendant is a non-resident
surety bond, it is necessary that all the requisites for its approval are 4. When an action is in rem or quasi in rem
met; otherwise, the bond should be rejected.
What is the nature of the lien created by WPA?
Moreover, in provisional remedies, particularly that of preliminary Attachment is in the nature of a proceeding in rem. It is against a
attachment, the distinction between the issuance and the particular property. The attaching creditor acquires a specific lien
implementation of the writ of attachment is of utmost importance upon the attached property which ripens into a judgment against
to the validity of the writ. The distinction is indispensably necessary the res when the order of sale is made. The attachment lien
to determine when jurisdiction over the person of the defendant continues until the debt is paid or the attachment is discharged.
Zachry v. CA therefor have been fulfilled by the applicant, although it may, in its
G.R. No. 106989 May 10, 1994 discretion, require prior hearing on the application with notice to the
defendant; but that levy on property pursuant to the writ thus issued
FACTS: VBC entered into an Agreement with Zachry, a foreign may not be validly effected unless preceded, or contemporaneously
corporation. The latter had been engaged by the US Navy to design accompanied, by service on the defendant of summons, a copy of
and construct 264 Family Housing Units at the US Naval Base at the complaint (and of the appointment of guardian ad litem, if any),
Subic. Under the agreement, VBC was to perform all the construction the application for attachment (if not incorporated in but submitted
work on the housing project and would be paid U.S. $6.468M, separately from the complaint), the order of attachment, and the
subject to additions and deductions for changes as hereinafter plaintiff's attachment bond.
provided."
Section 6. Sheriff's Return. — After enforcing the writ, the sheriff
VBC wrote Zachry a letter demanding compliance with its must likewise without delay make a return thereon to the court from
obligations. Zachry still failed to do so. which the writ issued, with a full statement of his proceedings under
the writ and a complete inventory of the property attached, together
During the case, the trial court issued an order granting the with any counter-bond given by the party against whom attachment
application for the issuance of the writ of preliminary attachment is issued, and serve copies thereof on the applicant. (6a)
and fixing the attachment bond. VBC put up the required bond and
the trial court issued the writ of attachment, which was served, Duty of the Sheriff
together with the summons, a copy of the complaint with annexes, After enforcing the writ, the sheriff must make a return to the court
the bond, and a copy of the order of attachment. which issued the writ with a full statement of his proceedings under
the writ and a complete inventory of the property attached, together
Zachry filed a motion to dismiss the complaint on the ground of lack with any counterbond given by the party against whom the
of jurisdiction over its person because the summons was not validly attachment is issued.
served on it. It alleges that it is a foreign corporation duly licensed
by the SEC to do business in the Philippines and, pursuant to the
Section 7. Attachment of Real and Personal Property; Recording
Corporation Code, had appointed Atty. Lucas Nunag as its resident
Thereof. — Real and personal property shall be attached by the
agent on whom any summons and legal processes against it may be
sheriff executing the writ in the following manner:
served.
(a) Real property, or growing crops thereon, or any interest therein,

ISSUE: Whether the issuance of the WPA prior to the service of the
standing upon the record of the registry of deeds of the province in
summons and a copy of the amended complaint is valid?
the name of the party against whom attachment is issued, or not
appearing at all upon such records, or belonging to the party against
VBC takes refuge in the ruling in Davao Light & Power Co. vs. Court
whom attachment is issued and held by any other person, or
of Appeals and argues that the issuance of the writ of attachment,
standing on the records of the registry of deeds in the name of any
although before the service of the summons, was valid. Its issuance
other person, by filing with the registry of deeds a copy of the order,
and implementation are two different and separate things; the first
together with a description of the property attached, and a notice
is not affected by any defect in the implementation which may be
that it is attached, or that such real property and any interest therein
corrected.
held by or standing in the name of such other person are attached,
and by leaving a copy of such order, description, and notice with the
In the first place, the writ was in fact issued and served, together with
occupant of the property, if any, or with such other person or his
the summons, copy of the complaint, the Order, and the bond, on
agent if found within the province. Where the property has been
Zachry at its field office in Subic through one Ruby Apostol. What
brought under the operation of either the Land Registration Act or
the Court of Appeals referred to as having been issued is the order
the Property Registration Decree, the notice shall contain a
granting the application for the issuance of a writ of preliminary
reference to the number of the certificate of title, the volume and
attachment upon the posting of a bond. In the second place, even
page in the registration book where the certificate is registered, and
granting arguendo that the Court of Appeals had indeed in mind the
the registered owner or owners thereof.
writ of attachment, its issuance, as well as the issuance of the Order,
did not suffer from any procedural or jurisdictional defect; the trial
The registrar of deeds must index attachments filed under this
court could validly issue both.
section in the names of the applicant, the adverse party, or the
person by whom the property is held or in whose name it stands in
Hence, when the sheriff or other proper officer commences
the records. If the attachment is not claimed on the entire area of
implementation of the writ of attachment, it is essential that he serve
the land covered by the certificate of title, a description sufficiently
on the defendant not only a copy of the applicant's affidavit and
accurate for the identification of the land or interest to be affected
attachment bond, and of the order of attachment, as explicitly
shall be included in the registration of such attachment;
required by Section 5 of Rule 57, but also the summons addressed
to said defendant as well as a copy of the complaint and order for
(b) Personal property capable of manual delivery, by taking and
appointment of guardian ad litem, if any, as also explicitly directed
safely keeping it in his custody, after issuing the corresponding
by Section 3, Rule 14 of the Rules.
receipt therefor.
For the guidance of all concerned, the Court reiterates and reaffirms
(c) Stocks or shares, or an interest in stocks or shares, of any
the proposition that writs of attachment may properly issue ex parte
corporation or company, by leaving with the president or managing
provided that the Court is satisfied that the relevant requisites
agent thereof, a copy of the writ, and a notice stating that the stock Du v. Stronghold Insurance
or interest of the party against whom the attachment is issued is G.R. No. 156580 | June 14, 2004
attached in pursuance of such writ;
FACTS: Aurora De Leon sold a parcel of land to Luz Du under a
(d) Debts and credits, including bank deposits, financial interest, ‘Conditional Deed of Sale’ for a downpayment of P75K leaving a
royalties, commissions and other personal property not capable of balance of P95K.
manual delivery, by leaving with the person owing such debts, or
having in his possession or under his control, such credits or other Aurora sold the same property to spouses Caliwag without prior
personal property, or with his agent, a copy of the writ, and notice notice to Luz Du. As a result, TCT was issued in favor of the Caliwag
that the debts owing by him to the party against whom attachment spouses.
is issued, and the credits and other personal property in his
possession, or under his control, belonging to said party, are Meanwhile, Stronghold Insurance filed a civil case against the
attached in pursuance of such writ; Caliwag spouses, for allegedly defrauding Stronghold and
misappropriating the company’s fund by falsifying and simulating
(e) The interest of the party against whom attachment is issued in purchases of documentary stamps. The action was accompanied by
property belonging to the estate of the decedent, whether as heir, a prayer for a WPA duly annotated at the back of TCT.
legatee, or devisee, by serving the executor or administrator or other On her part, Luz Du initiated an action against Aurora and the
personal representative of the decedent with a copy of the writ and spouses Caliwag for the annulment of the sale by De Leon in favor
notice that said interest is attached. A copy of said writ of of the Caliwags, anchored on the earlier Deed of Conditional Sale.
attachment and of said notice shall also be filed in the office of the Luz Du caused the annotation of a Notice Of Lis Pendens at the back
clerk of the court in which said estate is being settled and served of TCT.
upon the heir, legatee or devisee concerned.
ISSUES:
If the property sought to be attached is in custodia legis, a copy of 1. Whether a Notice of Levy on Attachment on the property is a
the writ of attachment shall be filed with the proper court or quasi- superior lien over that of the unregistered right of a buyer of a
judicial agency, and notice of the attachment served upon the property in possession pursuant to a Deed of Conditional Sale?
custodian of such property. (7a) Yes.
2. WON the acquisition of the subject property by Stronghold was
Attachment of Real and Personal Property tainted with bad faith? No. Good faith.
Real and personal property shall be attached by the sheriff executing
the writ in the following manner: HELD: Preference is given to a duly registered attachment over a
subsequent notice of lis pendens, even if the beneficiary of the
A. Real Property notice acquired the subject property before the registration of the
1. By filling with the Registry of Deeds a copy of the order, attachment. Under the Torrens system, the auction sale of an
property description, and a notice that it is attached; attached realty retroacts to the date the levy was registered. It has
2. By leaving a copy of such order, description and notice with been held that “Where a preliminary attachment in favour of ‘A’ was
the occupant of the property if any, or his agent, if found recorded earlier, and the private sale of the attached property in
within the province. favour of ‘B’ was executed a year later, the attachment lien has
priority over the private sale, which means that the purchaser took
Du v Stronghold Insurance (GR 156580) the property subject to such attachment lien and to all of its
The rule that an attachment that is duly annotated to the TCT is consequences, one of which is the subsequent sale on execution.”
superior to the right of a prior but unregistered buyer, by leaving a
copy of such order, description, and notice with the occupant of the The preference created by the levy on attachment is not diminished
property or his agent if found within the province. even by the subsequent registration of the prior sale. If the
attachment or levy of execution, though posterior to the sale, is
B. Personal Property Capable of Manual Delivery – by taking and registered before the sale is registered, it takes a precedence over
safely keeping in the sheriff’s custody. the latter. “The rule is not altered by the fact that at the time of the
execution sale the PNB had information that the land levied upon
C. Stocks or Shares – by leaving with the resident or managing had already been deeded by the judgment debtor and his wife to
agent thereof, a copy of the writ, and a notice that the stock or Capistrano. The auction sale being necessary sequel to the levy, for
interest is attached in pursuant of such writ. this was effected precisely to carry out the sale, the purchase made
by the bank at said auction should enjoy the same legal priority that
D. Debts and Credits and Other Personal Property Not Capable the levy had over the sale in favour of plaintiff. In other words, the
of Manual Delivery – by garnishment, which is a species of auction sale retroacts to the date of the levy. Were the rule
attachment or execution for reaching any property pertaining to a otherwise, the preference enjoyed by the levy of execution in a case
judgment debtor which may be found owing to such debtor by a like the present would be meaningless and illusory.”
third person.
It is settled that a person dealing with registered property may rely
on the title and be charged with notice of only such burdens and
claims as are annotated thereon. This principle applies with more
force to this case, absent any allegation or proof that Stronghold
had actual knowledge of the sale to petitioner before the
registration of its attachment. Thus, the annotation of respondent’s attached, filing the same in the estate settlement court and serving
notice of attachment was a registration in good faith, the kind that the same upon the heir, legatee or devisee.
made its prior right enforceable.
If the property is under Custodia Legis, can you still subject it to
Solidum v. CA preliminary attachment? Yes.
It cites some stranger to the litigation who is a debtor to one of the
parties to the action. Such debtor-stranger becomes a forced Attachment of Property in Custodia Legis
intervenor, and the court, having acquired jurisdiction over his If the property sought to be attached is in custodia legis, a copy of
person by means of citation, requires him to pay his debt, not to his the writ of attachment shall be filed with the proper court or quasi-
former creditor, but to the new creditor, who is the creditor in the judicial agency, and notice of the attachment served upon the
main case. It is merely a case of involuntary novation by substitution custodian of such property.
of one credits for another.
Who is the custodian of the property under custodia legis?
Solidum v. CA The Sheriff.
G.R. No. 161647 | June 22, 2006
Service of summons upon the garnishee is not necessary. All that
FACTS: Complaint for collection for a sum of money which is necessary is the service upon him of the writ of garnishment, as a
petitioner filed against UNICAP. Thus, he went after UNICAP’s consequence of which he becomes a virtual party or a forced
debtors. It appears that one of the debtors, Susan Yee Soon, intervenor in the case. (Perla Compania v. Ramolete, G.R. 60887)
executed (2) Deeds of Relative Assignment to UNICAP. The Deeds
assigned to UNICAP "all moneys that may be payable to Susan from NOTE: Supreme Court said here that there is no need for service of
the basic proceeds" of life insurance policies issued by Insular. summons on the garnishee. All you need is the service of the writ of
garnishment on the garnishee even if he is not a party to the case.
Sheriff served upon Insular the first Notice of Garnishment which
ordered Insular not to dispose of "all sums of money, credits, shares, Section 8. Effect of attachment of debts, credits and all other
interest, accounts receivables and collectibles" arising from the similar personal property. — All persons having in their
aforementioned policies. A second Notice of Garnishment reiterated possession or under their control any credits or other similar
the first Notice. personal property belonging to the party against whom
attachment is issued, or owing any debts to him, at the time of
Insular refused to release the garnished amounts. Petitioner moved service upon them of the copy of the writ of attachment and
for the issuance of an Order directing the sheriff to collect the notice as provided in the last preceding section, shall be liable to
proceeds of the policies. Insular opposed. the applicant for the amount of such credits, debts or other
similar personal property, until the attachment is discharged, or
HELD: Garnishment is a species of attachment or execution for any judgment recovered by him is satisfied, unless such property
reaching any property pertaining to a judgment debtor which may be is delivered or transferred, or such debts are paid, to the clerk,
found owing to such debtor by a third person. It cites some stranger sheriff, or other proper officer of the court issuing the
to the litigation who is debtor to one of the parties to the action. Such attachment.
debtor stranger becomes a forced intervenor, and the court, having
acquired jurisdiction over his person by means of citation, requires Section 8 is a self-explanatory provision.
him to pay his debt, not to his former creditor, but to the new
creditor, who is creditor in the main litigation. It is merely a case of Section 9. Effect of attachment of interests in property
involuntary novation by the substitution of one creditor for another. belonging to the estate of a decedent. — The attachment of
the interest of an heir, legatee, or devisee in the property
Garnishment involves at least three (3) persons: the judgment belonging to the estate of a decedent shall not impair the powers
creditor, the judgment debtor, and the garnishee, or the person of the executor, administrator, or other personal representative
cited who in turn is supposed to be indebted to the judgment of the decedent over such property for the purpose of
creditor. In case the garnishee asserts his own rights over the administration. Such personal representative, however, shall
garnished property, Section 16 of Rule 39 on terceria provides the report the attachment to the court when any petition for
remedies. distribution is filed, and in the order made upon such petition,
distribution may be awarded to such heir, legatee or devisee, but
In the case at bar, Insular, as garnishee, did not avail any of the the property attached shall be ordered delivered to the sheriff
remedies provided by the rules. After it was impleaded as garnishee, making the levy, subject to the claim of such heir, legatee, or
it wrote letters to the trial court, initially not contesting petitioner’s devisee, or any person claiming under him.
right to the basic proceeds of Susan Yee Soon’s insurance policies.
To emphasize, attachment shall not impair the powers of the
We have held that neither an appeal nor a petition for certiorari is executor, administrator, or other personal representative of the
the proper remedy from the denial of a third-party claim. decedent over such property for the purpose of administration. This
means the powers of the executor, administrator or other personal
July 14 Part 2 – Daniel Bajao representative of the decedent remains superior when it comes to
E. Interest in Property Belonging to the Estate of the Decedent such property.
– by serving the executor, administrator or other representative of
the decedent with a copy of the writ and notice that said interest is
Section 10. Examination of party whose property is attached 2. when the interests of all the parties to the action will be
and persons indebted to him or controlling his property; served by the sale thereof.
delivery of property to sheriff. — Any person owing debts to
the party whose property is attached or having in his possession Section 11. When Attached Property May Be Sold After Levy
or under his control any credit or other personal property On Attachment And Before Entry Of Judgment. — Whenever
belonging to such party, may be required to attend before the it shall be made to appear to the court in which the action is
court in which the action is pending, or before a commissioner pending, upon hearing with notice to both parties, that the
appointed by the court, and be examined on oath respecting the property attached is perishable, or that the interests of all the
same. The party whose property is attached may also be required parties to the action will be subserved by the sale thereof, the
to attend for the purpose of giving information respecting his court may order such property to be sold at public auction in
property, and may be examined on oath. The court may, after such manner as it may direct, and the proceeds of such sale to
such examination, order personal property capable of manual be deposited in court to abide the judgment in the action.
delivery belonging to him, in the possession of the person so
required to attend before the court, to be delivered to the clerk What if this is asked in your Bar Exam? Can a property already
of the court or sheriff on such terms as may be just, having attached be sold?
reference to any lien thereon or claim against the same, to await Yes. Look at Rule 57, Section 11. The sale has to be made after levy
the judgment in the action. on attachment and before entry of judgment. There is also a hearing
for the Court to determine whether or not the sale of the attached
What is meant by Section 10? property is proper.
Cross-reference this with Rule 39, Sections 36 and 37. This simply
means that you can be required to appear before the Court for Section 12. Discharge of attachment upon giving
further questioning. This is with respect to the examination of counter-bond. — After a writ of attachment has been enforced,
judgment obligor. This is also applicable to preliminary attachment. the party whose property has been attached, or the person
appearing on his behalf, may move for the discharge of the
Section 36. Examination of judgment obligor when attachment wholly or in part on the security given. The court
judgment unsatisfied. — When the return of a writ of execution shall, after due notice and hearing, order the discharge of the
issued against property of a judgment obligor, or any one of attachment if the movant makes a cash deposit, or files a
several obligors in the same judgment, shows that the judgment counter-bond executed to the attaching party with the clerk of
remains unsatisfied, in whole or in part, the judgment obligee, at the court where the application is made, in an amount equal to
any time after such return is made, shall be entitled to an order that fixed by the court in the order of attachment, exclusive of
from the court which rendered the said judgment, requiring such costs. But if the attachment is sought to be discharged with
judgment obligor to appear and be examined concerning his respect to a particular property, the counter-bond shall be equal
property and income before such court or before a commissioner to the value of that property as determined by the court. In either
appointed by it at a specified time and place; and proceedings case, the cash deposit or the counter-bond shall secure the
may thereupon be had for the application of the property and payment of any judgment that the attaching party may recover
income of the judgment obligor towards the satisfaction of the in the action. A notice of the deposit shall forthwith be served on
judgment. But no judgment obligor shall be so required to the attaching party. Upon the discharge of an attachment in
appear before a court or commissioner outside the province or accordance with the provisions of this section, the property
city in which such obligor resides or is found. attached, or the proceeds of any sale thereof, shall be delivered
to the party making the deposit or giving the counter-bond, or
Section 37. Examination of obligor of judgment to the person appearing on his behalf, the deposit or counter-
obligor. — When the return of a writ of execution against the bond aforesaid standing in place of the property so released.
property of a judgment obligor shows that the judgment remain Should such counter-bond for any reason be found to be or
unsatisfied, in whole or in part, and upon proof to the satisfaction become insufficient, and the party furnishing the same fail to file
of the court which issued the writ, that a person, corporation, or an additional counter-bond, the attaching party may apply for a
other juridical entity has property of such judgment obligor or is new order of attachment.
indebted to him, the court may, by an order, require such person,
corporation, or other juridical entity, or any officer, or member Section 13. Discharge of attachment on other
thereof, to appear before the court or a commissioner appointed grounds. — The party whose property has been ordered
by it, at a time and place within the province or city where such attached may file a motion with the court in which he action is
debtor resides or is found, and be examined concerning the pending, before or after levy or even after the release of the
same. The service of the order shall bind all credits due the attached property, for an order to set aside or discharge the
judgment obligor and all money and property of the judgment attachment on the ground that the same was improperly or
obligor in the possession or in the control of such person irregularly issued or enforced, or that the bond is insufficient. If
corporation, or juridical entity from the time of service; and the the attachment is excessive, the discharge shall be limited to the
court may also require notice of such proceedings to be given to excess. If the motion be made on affidavits on the part of the
any party to the action in such manner as it may deem proper. movant but not otherwise, the attaching party may oppose the
motion by counter-affidavits or other evidence in addition to that
When is the sale of attached property, after levy on attachment on which the attachment was made. After due notice and
and before entry of judgment, proper? hearing, the court shall order the setting aside or the
1. when the property attached is perishable, or corresponding discharge of the attachment if it appears that it

was improperly or irregularly issued or enforced, or that the bond 5. Judgment is rendered against the attaching creditor
is insufficient, or that the attachment is excessive, and the defect
is not cured forthwith. When you file a motion, you cite these grounds.
Sections 12 and 13 are the remedies for the discharge of the writ of In Sections 12 and 13, these are the remedies available to the party
attachment. whose property has been attached.
How do you quash the writ of attachment? Are the remedies in the alternative or cumulative?
Follow Sections 12 & 13. Section 12 is the first remedy. Here, you file These are cumulative remedies as held in the case of Calderon v.
a motion praying for the discharge of the writ of attachment. You Intermediate Appellate Court (155 SCRA 531). You can avail Section
file a Motion + Counter-bond. 12, you put up a counterbond dissolving the attachment on your
property but at the same time you can still question the propriety of
When is the remedy under Section 12 available? the issuance of the writ, such as when it is defective.
It is available after the writ has been enforced. You can move of the
discharge of the attachment, wholly or in part, on the security given. Calderon v. Intermediate Appellate Court
RULING: The liability of the attachment bond is defined in Section
What is the amount of the Counter-bond? 4, Rule 57 of the Rules of Court.
The value of the counter-bond shall be equal to the value of that
property as determined by the Court. The value is fixed by the Court. It is clear from the provision that the responsibility of the surety
It is usually equal to the value of that thing attached. arises "if the court shall finally adjudge that the plaintiff was not
entitled thereto."
Can the remedy under Section 12 be done ex parte?
No. The court shall, after due notice and hearing, order the discharge Equally untenable is the Surety's contention that by filing a
of the attachment. You cannot do this ex parte. The moment a party counterbond, private respondents waived any defect or flaw in the
puts up a counter-bond, the bond put up by the other party in the issuance of the attachment writ, for they could have sought, without
writ of preliminary attachment becomes dissolved. need of filing any counterbond, the discharge of the attachment if
the same was improperly or irregularly issued, as provided in Section
What is the purpose of the notice and hearing? 13, Rule 57 of the Rules of Court.
It is considered as a litigious motion. When we say litigious motion,
the rights of the parties will be affected by the grant or denial of the Whether the attachment was discharged by either of the two (2)
said motions. Hence, there must be notice and hearing. It cannot be ways indicated in the law, i.e., by filing a counterbond or by showing
ex parte. that the order of attachment was improperly or irregularly issued,
the liability of the surety on the attachment bond subsists because
Let’s go now to Section 13. It is the discharge of attachment on other the final reckoning is when "the Court shall finally adjudge that the
grounds. This is the second remedy for the quashal of the writ for attaching creditor was not entitled" to the issuance of the
preliminary attachment. attachment writ in the first place.
When is Section 13 available as a remedy? The attachment debtor cannot be deemed to have waived any
Before or after levy or even after the release of the attached defect in the issuance of the attachment writ by simply availing
property. himself of one way of discharging the attachment writ, instead
of the other. Moreover, the filing of a counterbond is a speedier way
Don’t get confused with Section 12 and Section 13 because they are of discharging the attachment writ maliciously sought out by the
different. In Section 12, it can be availed of after the writ has been attaching creditor instead of the other way, which, in most instances
enforced. In Section 13, it can be availed earlier. Before levy or after like in the present case, would require presentation of evidence in a
levy or even after the release of the attached property. full-blown trial on the merits.
Can Section 13 be availed ex parte? In Section 12, the writ is discharged when you put up a counterbond.
No again. You have to file a motion in Court and pray for the
discharge of the attachment on the ground that it is irregular, What is the effect of the discharge of an attachment bond?
excessive or it is defective. The liability on the attachment bond subsists until the court shall
finally adjudge that the attaching creditor is not entitled to the
July 14 Part 3 – Mikel Delgado issuance of the writ.
Grounds for the Discharge of the Writ Under Section 13
When the attachment is: When a motion to discharge not is allowed?
1. Debtor posted a counter-bond or has made the requisite
cash deposit
Chui Dian v. Sandiganbayan
2. Attachment was improperly or irregularly issued as where
349 SCRA 745
there is no ground for attachment, or affidavit and/or
DOCTRINE: The merits of the action in which the writ of preliminary
bond filed therefor are defective or insufficient
attachment has been issued are not triable on a motion for the
3. Attachment is excessive but the discharge shall be limited
dissolution of the attachment. Otherwise, an applicant for the lifting
to the excess
4. Property attached is exempt from execution
of the writ will force the trial of the merits of the case by mere party claimant who filed a frivolous or plainly spurious claim, in the
motion. same or a separate action.
Preliminary attachment issued upon a ground which is at the When the writ of attachment is issued in favor of the Republic of the
same time the applicant’s cause of action. When the preliminary Philippines, or any officer duly representing it, the filing of such bond
attachment is issued upon a ground which is at the same time the shall not be required, and in case the sheriff is sued for damages as
applicant’s cause of action, the defendant is not allowed to file a a result of the attachment, he shall be represented by the Solicitor
motion to dissolve the attachment under Section 13 of Rule 57 by General, and if held liable therefor, the actual damages adjudged by
offering to show the falsity of the factual averments in the plaintiff’s the court shall be paid by the National Treasurer out of the funds to
application and affidavits on which the writ was based – and be appropriated for the purpose. (14a)
consequently that the writ based thereon had been improperly or
irregularly issued – the reason being that the hearing on such a NOTE: This is familiar to you as it is also found Rule 39 Section 16
motion for dissolution of the writ would be tantamount to a trial of of your Civil Procedure.
the merits of the action. In other words, the merits of the action
would be ventilated at a mere hearing of a motion, instead of at the Terceria or Third-Party Claim
regular trial. The property that is attached by way of writ of attachment belongs
to a third person, not the defendant. If you are a third person this
The merits of the action in which a writ of preliminary attachment may be your remedy.
has been issued are not triable on a motion for dissolution of the
attachment; otherwise an applicant for the lifting of the writ could Remedies If Property is Being Claimed by a Third Person
force a trial of the merits of the case on a mere motion. 1. File a Third Party Claim or Terceria
2. File an independent action to recover property
There are only two ways of quashing a writ of attachment: 3. File a Motion for Intervention
(a) by filing a counterbond immediately; or a. Only availed for a limited period in relation to
(b) by moving to quash on the ground of improper and irregular Rule 19
issuance.
Section 15. Satisfaction of judgment out of property attached,
These grounds for the dissolution of an attachment are fixed in Rule return of sheriff. — If judgment be recovered by the attaching
57 of the Rules of Court and the power of the Court to dissolve an party and execution issue thereon, the sheriff may cause the
attachment is circumscribed by the grounds specified therein. judgment to be satisfied out of the property attached, if it be
Petitioner’s motion to lift attachment failed to demonstrate any sufficient for that purpose in the following manner:
infirmity or defect in the issuance of the writ of attachment; neither
did he file a counterbond. (a) By paying to the judgment obligee the proceeds of all sales of
perishable or other property sold in pursuance of the order of the
What is the purpose of the counterbond? court, or so much as shall be necessary to satisfy the judgment;
It is the replacement of the property formerly attached for the
purpose of securing payment of any judgment in favor of the (b) If any balance remains due, by selling so much of the property,
attaching property. real or personal, as may be necessary to satisfy the balance, if
enough for that purpose remain in the sheriff's hands, or in those
Section 14. Proceedings where property claimed by third the clerk of the court;
person. — If the property attached is claimed by any person other
than the party against whom attachment had been issued or his (c) By collecting from all persons having in their possession credits
agent, and such person makes an affidavit of his title thereto, or right belonging to the judgment obligor, or owing debts to the latter at
to the possession thereof, stating the grounds of such right or title, the time of the attachment of such credits or debts, the amount of
and serves such affidavit upon the sheriff while the latter has such credits and debts as determined by the court in the action, and
possession of the attached property, and a copy thereof upon the stated in the judgment, and paying the proceeds of such collection
attaching party, the sheriff shall not be bound to keep the property over to the judgment obligee.
under attachment, unless the attaching party or his agent, on
demand of the sheriff, shall file a bond approved by the court to The sheriff shall forthwith make a return in writing to the court of his
indemnify the third-party claimant in a sum not less than the value proceedings under this section and furnish the parties with copies
of the property levied upon. In case of disagreement as to such thereof. (15a)
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 Section 16. Balance due collected upon an execution; excess
property may be enforced against the bond unless the action delivered to judgment obligor. — If after realizing upon all the
therefor is filed within one hundred twenty (120) days from the date property attached, including the proceeds of any debts or credits
of the filing of the bond. collected, and applying the proceeds to the satisfaction of the
judgment less the expenses of proceedings upon the judgment any
The sheriff shall not be liable for damages for the taking or keeping balance shall remain due, the sheriff must proceed to collect such
of such property to any such third-party claimant, if such bond shall balance as upon ordinary execution. Whenever the judgment shall
be filed. Nothing herein contained shall prevent such claimant or have been paid, the sheriff, upon reasonable demand, must return
any third person from vindicating his claim to the property, or to the judgment obligor the attached property remaining in his
prevent the attaching party from claiming damages against a third-
hands, and any proceeds of the sale of the property attached not Section 20. Claim for damages on account of improper, irregular
applied to the judgment. (16a) or excessive attachment. — An application for damages on
account of improper, irregular or excessive attachment must be filed
Section 17. Recovery upon the counter-bond. — When the before the trial or before appeal is perfected or before the judgment
judgment has become executory, the surety or sureties on any becomes executory, with due notice to the attaching party and his
counter-bond given pursuant to the provisions of this Rule to secure surety or sureties setting forth the facts showing his right to
the payment of the judgment shall become charged on such damages and the amount thereof. Such damages may be awarded
counter-bond and bound to pay the judgment obligee upon only after proper hearing and shall be included in the judgment on
demand the amount due under the judgment, which amount may the main case.
be recovered from such surety or sureties after notice and summary
hearing in the same action. (17a) If the judgment of the appellate court be favorable to the party
against whom the attachment was issued he must claim damages
NOTE: Supposing the property was released from attachment, sustained during the pendency of the appeal by filing an application
because the other party put up a counterbond. Under Section 17, in the appellate court, with notice to the party in whose favor the
the plaintiff will have to enforce the judgment against the sureties attachment was issued or his surety or sureties, before the judgment
of the counterbond. of the appellate court becomes executory. The appellate court may
allow the application to be heard and decided by the trial court.
The law here speaks of surety or sureties. Usually in court, they go
to sureties such as bonding companies. Section 17 tells you to run Nothing herein contained shall prevent the party against whom the
against the sureties and they will be liable for the counterbond they attachment was issued from recovering in the same action the
have to put up. damages awarded to him from any property of the attaching party
not exempt from execution should the bond or deposit given by the
July 14 Part 4 – Elaizza Concepcion latter be insufficient or fail to fully satisfy the award.
Let’s go to Section 18, disposition of money deposited.
Is it possible for the plaintiff to win the case and for the
Section 18. Disposition of money deposited. — Where the party defendant to win the case for his counterclaim? Can the plaintiff
against whom attachment had been issued has deposited money win the case but he is still liable for unlawful attachment?
instead of giving counter-bond, it shall be applied under the The answer there is yes, the defendant is still liable. Even if the
direction of the court to the satisfaction of any judgment rendered plaintiff wins in the main action, he can still be liable for unlawful
in favor of the attaching party, and after satisfying the judgment the attachment. With more reason when the plaintiff loses the case, for
balance shall be refunded to the depositor or his assignee. If the now, he will be liable or he is to answer for all the damages that is
judgment is in favor of the party against whom attachment was suffered by the defendant while the attachment was going on. That
issued, the whole sum deposited must be refunded to him or his is under Section 20. You can claim for damages on account of
assignee. (18a) improper, irregular or excessive attachment.
This is a self-explanatory provision. Let’s proceed to Section 19. Please take note do not confuse Section 20 with Section 17. Section
17 is recovery on the counterbond. The one liable there is the surety
Section 19. Disposition of attached property where judgment is or sureties. In section 20, it is the claim for damages against the
for party against whom attachment was issued. — If judgment attachment which is also claimed by the defendant.
be rendered against the attaching party, all the proceeds of sales
and money collected or received by the sheriff, under the order of Section 17 Section 20
attachment, and all property attached remaining in any such officer's Recovery on the counterbond. Claim for damages on account
hands, shall be delivered to the party against whom attachment was The one liable here is the of improper, irregular or
issued, and the order of attachment discharged. (19a) surety or sureties. excessive attachment that is
also claimed by the defendant.
Just read Section 18 and 19.
What is important under Section 20, this allows the application to be
Please take note, is the release automatic? Or there must be an filed at any time before entry of judgment becomes executory. It is
order of release from the court? a remedy, or this is available or this should be filed at any time
The Supreme Court said in the case of Oblib v. Pastoral that there before entry of judgment becomes executory. It should be filed in
must be an order of release: the same case in the main action and this cannot be instituted
separately. There is no separate action for damages on account of
“There must be an order for the release. The order of attachment is improper, irregular or excessive attachment. You claim damages in
not deemed dissolved upon rendition of judgment upon the the same case, and it should be filed in the court which has
defendant. The order of attachment is deemed discharged when the jurisdiction over the case at the time of the application.
judgment becomes final and executory and which is not deemed on
appeal.” The remedy under Section 20 is an exclusive remedy. Failing to
file the said claim for damages while the court still has
Let’s proceed to Section 20. jurisdiction, the claimant loses his right to the same.
(Juan de Dios Carlos v Felicidad Sandoval, et. al. 471 SCRA)

Again, you file that in the main action before entry of judgment ISSUE: Whether or not the deficiency judgment is a personal
becomes executory and take note that the award for damages under judgment which should be deemed void for lack of jurisdiction over
Section 20, it need not be resolved before the case is submitted for her person? Yes.
decision but it should be included in the judgment on the main case
or decision on appeal by certiorari. HELD: It is admitted that the proceeding is a quasi in rem
proceeding and that the presence of Teresa is not required because
Section 20 is the remedy of the defendant or the person whose the trial court was able to acquire jurisdiction over the res
property is attached. (mortgaged property). However, her constitutional right to due
process is superior over the procedural matters mentioned. Her right
Summary to due process was violated when she did not receive summons.
1. It should be filed in the same case, in the main action and Teresa, as a resident defendant, who does not voluntary appear in
cannot be instituted separately. court must be personally served with summons as provided under
2. It should be filed with the court having jurisdiction over the Section 6, Rule 14 of the Rules of Court. Even if the action is quasi in
case at the time of the application. rem, personal service of summons is essential in order to afford
3. The remedy is exclusive. Failing to file the said claim for her due process. The substituted service made by the sheriff at her
damages while the court still has jurisdiction, the claimant husband's office cannot be deemed proper service absent any
loses his right to the same. (Carlos v Sandoval) explanation that efforts had been made to personally serve
4. Bond issued upon the applicant answers for all damages summons upon her but that such efforts failed. Further, the order
incurred of the trial court compelling Teresa to pay off the debt using her
personal property is a judgment in personam which the court cannot
Let’s go to jurisprudence! Come on! do because it only acquired jurisdiction over the res and not over
the person of Teresa.
Biaco v Philippine Country Side Rural Bank

Attachment proceedings is an action quasi in rem. As such,
GR No. 161417
jurisdiction over the person of the (non-resident) defendant is not
essential. Service of summons on a non-resident defendant who is
FACTS: Ernesto Biaco, husband of Teresa Biaco, acquired several
loans from Philippine Countryside Rural Bank (PCRB). To secure the not found in the country is required, not for purposes of physically
acquiring jurisdiction over his person but simply in pursuance of the
loans, he mortgaged certain property in favor of the bank. He was
able to pay loans from 1996 to 1997 but he defaulted in loans requirements of fair play.
obtained in 1998 which amounted to more than a million
pesos. Eventually, PCRB filed a complaint for foreclosure against the Quasha v. Juan
spouses Biaco. Summons were issued. The Sherriff served the GR No. 49140
summons to Ernesto at the latter's office. No summons was served
to Teresa. FACTS: Filipinas Carriers (Filcar), filed a complaint for sum of money,
enforcement of lien and damages, against AB Charles. In the
Ernesto did not file a responsive pleading (so did Teresa because she complaint, Filcar alleged that it is the disponent owner of a vessel,
was not aware sans the summons being served her). The case was MV San Vicente, which was duly. Charles Thorburn & Co. chartered
heard ex-parte and the spouses were ordered to satisfy the debt and said vessel at US $3,200.00 a day. After the second month, Thorburn
failure to do so will authorize the Sheriff to auction the mortgaged failed to pay the daily hire. On demand, Baroom, the agent of
the property. Thorburn in Jeddah, and the consignees and shippers refused to pay
that consequently, forced Filcar to exercise its lien on the cargoes
Eventually, the mortgaged property was auctioned for P150k which consistent with Clause 18 of the Charter Party, notice of which was
is not sufficient to cover the P1M+ debt. Upon motion by PCRB, a sent to defendants.
notice of levy was issued against the personal properties of Teresa
to satisfy the deficiency. Filcar filed an extra-parte motion to sell the goods subject of lien,
alleging among others, that the MV San Vicente had arrived in the
It was only at this point that Teresa learned of the previous ex parte Philippines, and was due for dry-docking and needed urgent repairs;
proceedings. She then sought to have the judgment annulled as she and that the goods subject of its lien were in danger of deteriorating
now claims that she was deprived of due process when she did not and losing their market value and if the goods were not sold
receive summons; that it was only her husband who received the immediately, the plaintiff would have to pay a staggering amount
summons; that there was extrinsic fraud because her husband for warehousing so that the value of the goods would not even be
deliberately hid the fact of the foreclosure proceeding. enough to pay for warehousing expenses.
PRCB argued that the foreclosure proceeding is an action quasi in Petitioner law firm filed a special appearance for defendant Ahmed
rem, hence Teresa's participation is not required so long as the court Baroom contesting the Court's jurisdiction over Baroom's person
acquires jurisdiction over the res which is what happened in the case and property and a Motion to Dismiss on the ground that the Court
at bar; that Teresa cannot invoke extrinsic fraud because such had not acquired jurisdiction over Baroom's person or property
situation cannot occur in her case because she is a co-defendant of aboard the MV San Vicente.
Ernesto.
Judge issued an Order directing petitioner law firm to show a written
authorization signed by its client, Baroom, "since the latter is a
foreigner".
property of Adlawan which was subsequently granted and enforced
Petitioner, as Baroom's counsel, filed an answer with compulsory after Aboitiz paid the attachment bond. However, Aboitiz filed a
counterclaim, claiming that defendant Baroom is not an agent of notice of dismissal of its complaint which resulted to all orders of
Charles Thorburn since the cargoes belong to him, and denying the the court issued prior to the filing of said notice of dismissal be
validity of plaintiff's lien over the cargo. Petitioner reiterates the considered as functus oficio and all pending incidents thereto as
defense that plaintiff's action being in personam involving moot and academic.
defendant who is not a resident within the territorial jurisdiction of
the Court, and there is no showing in the records that the provisions Adlawan filed a motion praying that the Order be implemented and
of Section 17, Rule 14 in relation to Section 1, Rule 57, of the Rules enforced. On December 20, however, Branch 11 denied the motion
of Court have been complied with to convert the action in rem, the on account of the filing by Aboitiz before Branch 16 of the of an
Court had no jurisdiction over the case. Baroom, through petitioner, action for delivery of personal property, and the filing by Adlawan
prayed that plaintiff be directed to deliver the cargoes to Jeddah, before Branch 10 of the same court of an action for damages in
pay damages corresponding to the full value of the goods and to connection with the seizure of his property under the writ of
the lost income and profits he could have realized had plaintiff attachment.
delivered the cargo to him. Baroom, likewise, filed a cross-claim
against Sierra Madre, plaintiff-intervenor. In the replevin suit, Branch 16 ordered the seizure and delivery of
the property described in the complaint. Said property were later
ISSUE: Whether or not the preliminary attachment was proper? Yes. delivered by the provincial sheriff to Aboitiz. Alleging that while his
office was situated in Cebu City, Adlawan was a resident of
HELD: As regards jurisdiction over the res, we hold that respondent Minglanilla, and therefore, the Lapu-lapu City court should not
acquires jurisdiction over it. Where a property is burdened by a entertain the action for replevin. Adlawan filed an omnibus motion
lien, a writ of attachment is no longer necessary in order that praying for the reconsideration and dissolution of the writ of seizure,
jurisdiction over the property may be obtained by the court. the retrieval of the property seized, and the dismissal of the
complaint. He also averred that the property seized were in custodia
In an ordinary attachment proceeding, if the defendant is not legis by virtue of the writ of attachment issued by Branch 11. His
personally served, the preliminary seizure is to be considered omnibus motion was denied.
necessary in order to confer jurisdiction upon the court. In this case
the lien on the property is acquired by seizure; and the purpose of the ISSUE: Whether or not the writ of attachment issued by Judge in the
proceeding is to subject the property to that lien. If a lien already consolidated cases for collection of sums of money was proper? No.
exists, whether created by mortgage, contract, or statute, the
preliminary seizure is not necessary, and the court proceeds to enforce HELD: The affidavit submitted by Aboitiz in support of its prayer for
such lien in the manner provided by law precisely as though the the writ of attachment does not meet the requirements of Rule 57
property had been seized upon attachment. regarding the allegations on impending fraudulent removal,
concealment and disposition of defendant's property.
The reason for the rule is obvious. An attachment proceeding is for
the purpose of creating a lien on the property to serve as security As held in Carpio v. Macadaeg, to justify a preliminary attachment,
for the payment of the creditors' claim. Hence, where a lien already the removal or disposal must have been made with intent to
exists, as in this case a maritime lien, the same is already equivalent defraud defendant's creditors. Proof of fraud is mandated by
to an attachment. Moreover, since the property subject of the action paragraphs (d) and (e) of Section 1, Rule 57 on the grounds upon
for the enforcement of the maritime liens was already in the which attachment may issue. Thus, the factual basis on defendant's
possession of private respondent, there is no need for seizure for intent to defraud must be clearly alleged in the affidavit in support
the court to obtain jurisdiction over the rest. of the prayer for the writ of attachment if not so specifically alleged
in the verified complaint.
Where a party in actual possession of the res subject to the lien is
before the court, the res is within the jurisdiction of the court for the It is evident from said affidavit that the prayer for attachment rests
enforcement of the lien A suit may be maintained to foreclose a lien on the mortgage by petitioners of 11 parcels of land in Cebu, which
on property within the jurisdiction of the court, although some interest encumbrance Aboitiz considered as fraudulent concealment of
or claim therein is held by a non-resident. property to its prejudice. We find, however, that there is no factual
allegation which may constitute as a valid basis for the contention
Where a lien already exists, e.g. a maritime lien, the same is that the mortgage was in fraud of Aboitiz. The general rule is that
equivalent to an attachment, such as that under a real estate the affidavit is the foundation of the writ, and if none be filed or one
mortgage. be filed which wholly fails to set out some facts required by law to
be stated therein, there is no jurisdiction and the proceedings are
null and void.
Adlawan v. Torres
GR 65957-58
Bare allegation that an encumbrance of a property is in fraud of the
creditor does not suffice. Factual bases for such conclusion must be
FACTS: Adlawan was awarded a contract for two irrigation projects
clearly averred.
by the NIA. Consequently, Aboitiz loaned Adlawan money and
equipment for the said projects. For its inability to pay, Aboitiz filed
The execution of a mortgage in favor of another creditor is not
a collection for sum of money against Adlawan. An ex parte
conceived by the Rules as one of the means of fraudulently
application for attachment was also filed by Aboitiz against the
disposing of one's property. By mortgaging a piece of property, a
debtor merely subjects it to a lien but ownership thereof is not took over the possession of the properties in dispute from the
parted with. guards deputized by the Sheriff of Manila to secure the premises.
Furthermore, the inability to pay one's creditors is not necessarily Thus Solidbank, on the strength of its prior attachment over the
synonymous with fraudulent intent not to honor an obligation. lands in question filed with the Malolos court an omnibus motion to
annul the writ of possession issued to Golden Star and to punish for
Consequently, when petitioners filed a motion for the contempt of court the persons who implemented the writ of
reconsideration of the order directing the issuance of the writ of possession with the use of force and intimidation.
attachment, respondent Judge should have considered it as a
motion for the discharge of the attachment and should have ISSUE: Whether the subject properties were under custodia legis by
conducted a hearing or required submission of counter-affidavits virtue of the prior annotation of a writ of attachment in petitioner's
from the petitioners, if only to gather facts in support of the favor at the time the properties were extrajudicially foreclosed? Yes.
allegation of fraud. This is what Section 13 of Rule 57 mandates.
HELD: The disputed real properties were under custodia legis by
When the ground relied upon in asking for preliminary attachment virtue of a valid attachment at the time the same were extrajudicially
is impending fraudulent removal, concealment, and disposition of foreclosed by a third party mortgagee.
defendant’s property under paragraphs (d) and (e) of Section 1, Rule
57, the court should conduct a hearing to gather facts regarding the Whe a writ of attachment has been levied on real property or any
allegations of fraud. interest therein belonging to the judgment debtor, the levy thus
Consolidated Bank v. Intermediate Appellate Court effected creates a lien which nothing can destroy but its dissolution.
GR No. 73976
The foregoing conclusion has two necessary consequences. Firstly,
FACTS: Consolidated Bank (Solidbank) loaned NICOS Industrial it follows that the writ of possession issued by the Malolos court in
(NICOS) sums of money in the total amount of P4,076,518.64. favor of Golden Star is void because it interfered with the jurisdiction
Subsequently, NICOS failed to pay back the loan prompting of a co-ordinate and co-equal court.
Solidbank to file a collection case; the court in the aforecited case
issued an order of attachment. While property or money is in custodia legis, the officer holding it is
the mere hand of the court, his possession is the possession of the
Pursuant to the writ of attachment issued by the Court and upon court, and to interfere with it is to invade the jurisdiction of the court
petitioner's posting of sufficient bond, the Sheriff of Manila levied itself.
and attached the two real properties described by the foregoing
order of attachment, including the buildings and other Of equal importance is the fact that the transactions on which
improvements thereon. Afterwards, the Sheriff sent separate Notices Golden Star's right to a writ of possession are based are highly
of Levy Upon Realty to the Registrar of Deeds of Malolos, Bulacan, irregular and questionable, to say the least. Based on the facts, we
requesting him "to make the proper annotation in the books of your find that NICOS and Golden Star conspired to defeat petitioner's lien
office" by virtue of the order of attachment. on the attached properties and to deny the latter its right of
redemption.
Accordingly, the Registrar of Deeds of Malolos, Bulacan, pursuant to It appears that in issuing the writ of possession, the Malolos court
the request of the Manila Sheriff, inscribed and annotated the relied on copies of documents (which did not show the
Notices of Levy Upon Real Property at the back of Transfer memorandum of encumbrance) submitted to it by Golden Star. It
Certificates of Title of the properties. was thus led into the error of ruling that the petitioner's attachment
A year later, however, the attached properties which had been was not properly annotated.
mortgaged by NICOS to UCPB were extrajudicially foreclosed by the
latter. As the highest bidder therein, a certificate of sale was issued Secondly, it likewise follows that the petitioner has acquired by
to it by the Sheriff of Bulacan over the subject realties including the operation of law the right of redemption over the foreclosed
buildings and improvements thereon. properties pursuant to Sec. 6 of Act No. 3135.
Surprisingly, two transactions occurred soon thereafter, both on It has been held that "an attaching creditor may succeed to the
August 29. First, UCPB sold all of its rights, interests, and incidental rights to which the debtor was entitled by reason of his
participation over the properties in question to a certain Manuel Go; ownership of the property, as for example, a right to redeem from a
Second, Manuel Go sold all the rights he acquired from UCPB over prior mortgage"
the same lots on that very same day to Golden Star.
The fact that NICOS executed a waiver of right of redemption in
Barely a month later, NICOS, though fully aware that it still had the favor of Golden Star is of no moment as by that time it had no more
right to redeem the auctioned properties within the period of right which it may waive in favor of another.
redemption suddenly executed a document entitled "Waiver of
Right of Redemption" in favor of Golden Star. If a property has been levied upon by virtue of a writ of preliminary
attachment, it becomes one under custodia legis and a subsequent
Golden Star filed a petition for the issuance of a writ of possession extrajudicial foreclosure of said property by a third-party mortgagee
over the subject realties before the RTC. Malolos Court granted does not affect the lien created by the attachment.
Golden Star's petition for a writ of possession and issued the writ. In
accordance with these orders, armed men of Golden Star forcibly
Biñan Steel Corporation v. Court of Appeals unregistered sale is subsequently registered before the sale on
GR No. 142013 execution but after the levy is made, the validity of the
execution sale should be upheld because it retroacts to the date
FACTS: Biñan Steel Corporation (BSC) filed a complaint against of levy. The priority enjoyed by the levy on attachment extends, with
Joenas Metal and the spouses Ng for collection of a sum of money full force and effect, to the buyer at the auction sale conducted by
with damages. virtue of such levy. The sale between the spouses Ng and the Garcias
was undoubtedly a valid transaction between them. However, in
Trial court issued a Writ of Preliminary Attachment after BSC filed an view of the prior levy on attachment on the same property, the
attachment bond. Pursuant thereto the sheriff, levied on the Garcias took the property subject to the attachment. The Garcias, in
property registered in the names of the spouses Ng and covered by buying registered land, stood exactly in the shoes of their vendors,
TCT of the Registry of Deeds. This property under preliminary the Ngs, and their title ipso facto became subject to the incidents or
attachment was in fact mortgaged to BPI. results of the pending litigation between the Ngs and BSC.
A sheriff’s return was filed, stating that, as of that date, summons Attachment is a proceeding in rem which, in effect means that the
was not served upon the spouses Ng because they could not be property attached is an indebted thing and a virtual condemnation
located. BSC caused the filing of a motion to serve the summons by of it to pay the owners debt.
publication which was granted. Summons by publication thereafter
ensued. It is doctrinal that a levy on attachment, duly registered, has
In the meantime, spouses Ng sold the property to Garcia by means preference over a prior unregistered sale and, even if the prior
of a deed of sale dated. Said transaction was registered only about unregistered sale is subsequently registered before the sale on
a month-and-a-half later after the mortgagee FEBTC gave its execution but after the levy is made, the validity of the execution
approval to the sale. TCT in the name of the spouses Ng was sale should be upheld because it retroacts to the date of levy on
cancelled and, in lieu thereof, TCT in the names of Garcia was issued. attachment. Thus, because of the principle of constructive notice to
The annotation of the preliminary attachment made by sheriff on the whole world, one who deals with registered property which is
the old title, TCT was transferred. the subject of an annotated levy on attachment cannot invoke the
rights of a purchaser in good faith.
Garcias filed a complaint-in-intervention alleging that they were the
registered owners of the property covered by which was the subject It is a proceeding in rem, meaning it is directed against the property
of BSC’s writ of preliminary attachment. itself.
ISSUE: Whether BSC has a better right over the property by virtue Claude Neon Lights v. Philippine Advertising Corporation
of the levy on attachment? Yes. 57 Phil 607
HELD: At the time of the attachment of the property the spouses FACTS: Philippine Advertising Corporation filed suit against the
Ng were still the registered owners of said property. It should also petitioner in the claiming damages for alleged breach of the agency
be observed that the preliminary attachment in favor of BSC was contract existing between the said respondent and the petitioner. At
annotated and recorded in the Registry of Deeds in accordance with the same time, said respondent filed in said court an application for
the provisions of PD 1529. This annotation produced all the effects writ of attachment duly verified in which it is stated that the
which the law gives to its registration or inscription. (petitioner herein) is a foreign corporation having its principal place
of business in the City of Washington, District of Columbia. It is not
Attachment is a proceeding in rem. It is against the particular alleged in said application that the defendant, Claude Neon Lights
property, enforceable against the whole world. The attaching was about to depart from the Philippine Islands with intent to
creditor acquires a specific lien on the attached property which defraud its creditors or that it was insolvent or had removed or
ripens into a judgment against the res when the order of sale is disposed of its property or was about to do so with intent to defraud
made. Such a proceeding in effect means that the property attached its creditors. The only statutory ground relied upon in the court
is an indebted thing and a virtual condemnation of it to pay the below and in this court for the issuance of the writ of attachment
owner’s debt. against the petitioner is paragraph 2 of section 424 of the Code of
Civil Procedure, which provides that a plaintiff may have the
In the instant case, the records reveal that the levy on attachment property of the defendant attached "in an action against a
covering the subject property was annotated on TCT on July 27. The defendant not residing in the Philippine Islands".
deed of sale executed on June 29in favor of the Garcias was
approved by FEBTC only on August 12 which was also the date when Judge issued the writ of attachment as prayed for, and the sheriff
the sale was registered. From the foregoing, it can be seen that, has attached all the properties of the petitioner in the Philippine
when the Garcias purchased the property in question, it was Islands.
already under a duly registered preliminary attachment. In other
words, there was already notice to said purchasers (and the whole ISSUE: Whether or not the writ of preliminary attachment was
world) of the impending acquisition by BSC, as the judgment proper? No.
creditor, of a legal lien on the title of the Ng spouses as judgment
debtors — in case BSC won its case in the Manila RTC. HELD: The petitioner is a corporation duly organized under the laws
of the District of Columbia; it had complied with all the requirements
It is doctrinal that a levy on attachment, duly registered, has of the Philippine laws and was duly licensed to do business in the
preference over a prior unregistered sale and, even if the prior Philippine Islands on the date said writ of attachment was issued.
The petitioner was actively engaged in doing business in the ISSUE: Whether the writ of attachment was properly issued upon a
Philippine Islands and had considerable property therein, which showing that defendant is on the verge of insolvency? No.
consisted of its manufacturing plant, machinery, merchandise and a
large income under valuable contracts, all of which property was in HELD: As averred by petitioner itself, the several buses attached are
the possession and under the control and management of the nearly junks. However, upon permission by the sheriff, five of them
Philippine Advertising Corporation, as the agent of the petitioner, were repaired, but they were substituted with five buses which were
on the date said attachment was levied. Considered from a practical also in the same condition as the five repaired ones before the
and economic viewpoint, its position in the business community was repair. This cannot be the removal intended as ground for the
indistinguishable from that of a domestic corporation. issuance of a writ of attachment under section 1 (e), Rule 57, of the
Rules of Court. The repair of the five buses was evidently motivated
If, as we believe, section 424, paragraph 2, should not be held by a desire to serve the interest of the riding public, clearly not to
applicable to foreign corporations duly licensed to do business in defraud its creditors, as there is no showing that they were not put
the Philippine Islands both because the language and the reason of on the run after their repairs, as was the obvious purpose of their
the statute limit it to natural persons, we sustain and reinforce the substitution to be placed in running condition.
provisions of section 71 of the Corporation Law, Act No. 1459, which
provides in substance that if the Secretary of Finance or the Moreover, as the buses were mortgaged to the DBP, their removal
Secretary of Commerce and Communications and the Governor- or disposal as alleged by petitioner to provide the basis for its prayer
General find a duly licensed foreign corporation to be insolvent or for the issuance of a writ of attachment should be very remote, if not
that its. continuance in business will involve probable loss to its nil. If removal of the buses had in fact been committed, which seems
creditors, they may revoke its license and "the Attorney-General to exist only in petitioner's apprehensive imagination, the DBP
shall take such proceedings as may be proper to protect creditors should not have failed to take proper court action, both civil and
and the public". Section 71, supra, contemplates that the criminal, which apparently has not been done.
proceedings instituted by the Attorney-General shall effect the
protection of all creditors and the public equally. Obviously, the The dwindling of respondent's bank account despite its daily income
benefit of that section will be minimized, if not entirely defeated, if is easily explained by its having to meet heavy operating expenses,
a creditor or a few creditors can obtain privileged liens by writs of which include salaries and wages of employees and workers. If,
attachment based on the sole allegation, which is easily and safely indeed the income of the company were sufficiently profitable, it
made, that the corporation is "not residing in the Philippine Islands". should not allow its buses to fall into disuse by lack of repairs. It
should also maintain a good credit standing with its suppliers of
Paragraph 2' of section 424, does not apply to a domestic equipment, and other needs of the company to keep its business a
corporation. Our laws and jurisprudence indicate a purpose to going concern. Petitioner is only one of the suppliers.
assiinilate foreign corporations, duly licensed to do business here, to
the status of domestic corporations. We think it would be entirely It is, indeed, extremely hard to remove the buses, machinery and
out of line with this policy should we make a discrimination against other equipment which company have to own and keep to be able
a foreign corporation, like the petitioner, and subject its property to to engage and continue in the operation of its transportation
the harsh writ of seizure by attachment when it has complied not business. The sale or other form of disposition of any of this kind of
only with every requirement of law made specially of foreign property is not difficult of detection or discovery, and strangely,
corporations, but in addition with every requirement of law made of petitioner, has adduced no proof of any sale or transfer of any of
domestic corporations. them, which should have been easily obtainable.
A foreign corporation duly licensed to do business in the Philippines Insolvency of the defendant debtor is not a ground for the issuance
is not a non-resident within the meaning of Section 1(f), Rule 57. of a writ of preliminary attachment.
Hence, its property here may not be attached on the sole ground
that it is a nonresident. Philippine National Bank v. Pabalan
GR No. 33112
Aboitiz and Co, Inc. v Provincial Sheriff
GR No. 35950 FACTS: PNB filed this certiorari and prohibition proceeding against
Judge Pabalan who issued a writ of execution, followed thereafter
FACTS: Civil Case in which a writ of preliminary attachment was by a notice of garnishment of the funds of Philippine Virginia
issued ex-parte by the Court on the strength of an affidavit of merit Tobacco Administration, deposited with it, on the fundamental
attached to the verified complaint filed by Aboitiz, as plaintiff for the constitutional law doctrine of non-suability of a state, it being
collection of money which Cotabato Bus owed. alleged that such funds are public in character.
By virtue of the writ of preliminary attachment, the provincial sheriff ISSUE: Can the funds of Philippine Virginia Tobacco Administration
attached personal properties of the bus company consisting of some deposited with the petitioner be garnished? Yes.
buses, machinery and equipment. The ground for the issuance of
the writ is, as alleged in the complaint and the affidavit of merit HELD: The alleged grave abuse of discretion, the basis of this
executed by the Assistant Manager of petitioner, that the defendant certiorari proceeding, was sought to be justified on the failure of
"has removed or disposed of its properties or assets, or is about to respondent Judge to set aside the notice of garnishment of funds
do so, with intent to defraud its creditors." belonging to Philippine Virginia Tobacco Administration. This
excerpt from the aforecited decision of Philippine National Bank v.

Court of Industrial Relations makes manifest why such an argument ISSUE: Is READYCON liable to petitioner WENCESLAO for damages
is far from persuasive. caused by the issuance and enforcement of the writ of preliminary
attachment? No.
“The premise that the funds could be spoken as public character may
be accepted in the sense that the People Homesite and Housing HELD: The posting of a counter-bond is not tantamount to a waiver
Corporation was a government-owned entity. It does not follow of the right to damages arising from a wrongful attachment. This we
though that they were exempt. from garnishment. National Shipyard have made clear in previous cases, that:
and Steel Corporation v. Court of Industrial Relations is squarely in
point. As was explicitly stated : “The allegation to the effect that the Whether the attachment was discharged by either of the two (2)
funds of the NASSCO are public funds of the government, and ways indicated in the law, i.e., by filing a counterbond or by showing
that, as such, the same may not be garnished, attached or levied that the order of attachment was improperly or irregularly issued,
upon, is untenable for, as a government owned and controlled the liability of the surety on the attachment bond subsists
corporation, the NASSCO has a personality of its own. distinct and because the final reckoning is when "the Court shall finally adjudge
separate from that of the Government. that the attaching creditor was not entitled" to the issuance of the
attachment writ in the first place. The attachment debtor cannot be
Garnishment does not lie against the funds of the regular deemed to have waived any defect in the issuance of the
departments or offices of the government, but funds of public attachment writ by simply availing himself of one way of
corporations are not exempt from garnishment. discharging the attachment writ, instead of the other. Moreover,
Q: After defendant AA properties were attached, AA filed a sufficient the filing of a counterbond is a speedier way of discharging the
counterbond and the trial court discharged the attachment. For attachment writ maliciously sought out by the attaching party
having suffered substantial prejudice due to the unwarranted creditor instead of the other way, which in most instances like in the
attachment, the trial court rendered judgment ordering the plaintiff present case, would require presentation of evidence in a fullblown
to pay damages since the latter was not entitled to attachment. AA trial on the merits and cannot easily be settled in a pending incident
moved to charge plaintiff’s attachment bond which was objected to of the case.
by plaintiff and his sureties on the ground that the counterbond
lifted plaintiff’s attachments on from all liability. Rule on AA’s The point in Mindanao Savings, alluded to by respondent, pertained
motion. to the propriety of questioning the writ of attachment by filing a
motion to quash said writ, after a counter-bond had been posted by
A: AA’s motion should be granted since the filing of counterbond the movant. But nowhere in Mindanao Savings did we rule that filing
does not cost not constitute a waiver of his right to proceed against a counter-bond is tantamount to a waiver of the right to seek
the attachment bond. Furthermore, the condition of that attachment damages on account of the impropriety or illegality of the writ.
bond is for the applicant to pay all costs and damages which may
be adjudged to the adverse party. We note that the appellate court, stressed that bad faith or malice
(DM Wenceslao v. Readyson Trading GR No. 154106) must first be proven as a condition sine qua non to the award of
damages. The appellate court appears to have misread our ruling.
Plainly, we laid no hard and fast rule that bad faith or malice must
That attachment bond even if there is already the counterbond, it
be proved to recover any form of damages. In Philippine
will subsist until there is judgment.
Commercial & Industrial Bank, we found bad faith and malice to be
present, thereby warranting the award of moral and exemplary
damages. But we denied the award of actual damages for want of
DM Wenceslao and Association v. Readyson Trading evidence to show said damages. For the mere existence of malice
GR No. 154106 and bad faith would not per se warrant the award of actual or
compensatory damages. To grant such damages, sufficient proof
FACTS: READYCON filed a complaint for collection of a sum of thereon is required.
money and damages, with prayer for writ of preliminary attachment
against D.M. Wenceslao and/or Dominador Dayrit. READYCON Petitioners cite Lazatin and MC Engineering insofar as proof of bad
demanded payment of the balance of contract price. faith and malice as prerequisite to the claim of actual damages is
dispensed with. Otherwise stated, in the present case, proof of
As READYCON timely posted the required bond of ₱1,150,000, its malice and bad faith are unnecessary because, just like
application for the writ of preliminary attachment was granted. in Lazatin and MC Engineering, what is involved here is the issue of
actual and compensatory damages. Nonetheless, we find that
On RTC Sheriff attached certain assets of WENCESLAO. petitioner is not entitled to an award of actual or compensatory
damages. Unlike Lazatin and MC Engineering, wherein the
WENCESLAO moved for the release of the attached equipment and respective complaints were dismissed for being unmeritorious, the
posted its counter-bond. The trial court granted the motion and writs of attachment were found to be wrongfully issued, in the
directed the RTC Sheriff to return the attached equipment. Sheriff present case, both the trial and the appellate courts held that the
released the attached heavy machineries to WENCESLAO. complaint had merit. Stated differently, the two courts found
READYCON entitled to a writ of preliminary attachment as a
By way of counterclaim, WENCESLAO prayed for the payment of provisional remedy by which the property of the defendant is taken
damages caused by the filing of READYCON’s complaint and the into custody of the law as a security for the satisfaction of any
issuance of the writ of attachment despite lack of cause. judgment which the plaintiff may recover.

In this case, both the RTC and the Court of Appeals found no reason
to rule that READYCON was not entitled to issuance of the writ. RULE 58 PRELIMINARY INJUNCTION
Neither do we find now that the writ is improper or illegal. If
WENCESLAO suffered damages as a result, it is merely because it did
not heed the demand letter of the respondent in the first place. July 21, 2020 – Ella Cobol Sophiya Anneska Avisado
Faith Angeli Campaner Honey Charish Andamon
WENCESLAO could have averted such damage if it immediately filed
a counter-bond or a deposit in order to lift the writ at once. It did
not, and must bear its own loss, if any, on that account. Distinguish a main action for injunction from a provisional
remedy preliminary injunction. (2006 BQ)
In connection to Section 12 and 13, what if the ground for the

Provisional Remedy Main Action
discharge of the attachment is lack of notice to him on the
Injunction as an ancillary It is an independent action
plaintiff’s application for the issuance of a writ of attachment,
remedy exists as an incident to which seeks a judgment
should the court grant his motion to discharge.
a principal action which seeks embodying a final injunction
The court should not grant the motion. A writ of preliminary
to preserve the status quo or to enjoin the defendant from
attachment may be issued ex parte and the grounds for the
prevent future wrongs in the commission or continuance
discharge are exclusive under Section 12 and Section 13.
order to preserve and protect of a specific act or to compel a
certain interests or rights particular act in violation of
during the pendency of the the rights of the applicant.
action.
DEFINITION OF PRELIMINARY INJUCTION

Study break! Section 1. Preliminary injunction defined; classes. — 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 may also require the performance of a
particular act or acts, in which case it shall be known as a
preliminary mandatory injunction. (1a)
The law provides that a preliminary injunction is an order granted

by the court where the principal action or proceeding is pending, at
any stage prior to judgment, requiring a party or a court, agency
or a person to refrain from doing a particular act or acts. It may also
require the performance of a particular act or acts, in which case, it
shall be known as a preliminary mandatory.
FINAL INJUCTION is granted after the trial or the action perpetually

restraining the party or person enjoined from the commission or
continuance of the acts complained of.
Nature of Preliminary Injunction

1. ANCILLARY AND PROVISIONAL - A preliminary injunction is
a mere adjunct, an ancillary remedy which exists only as an
incident of the main proceeding.
Mirasol v. DPWH
GR 158793 citing Urbanes, Jr., v. CA
Facts: Petitioners filed before the court a petition for declaratory

“Marami ka pang bigas na kakainin!” judgment with application for temporary restraining order and
injunction. It seeks the declaration of nullification of
administrative issuances. RTC, after due hearing, granted the
“Hindi ako kumakain ng bigas, Major.
petitioner’s application for preliminary injunction.
Sinasaing ko muna para maging kanin bago ko kainin.
Ikaw Major, palay pa lang, kinakain mo na.” Issue: Won RTC’s decision granting the application for
- Batas Sa Aking Kamay preliminary injunction is barred by res judicata? No!
A preliminary injunction does not serve as a final

determination of the issues. It is a provisional remedy, which

merely serves to preserve the status quo until the court could or grant was for consideration other than the strict merits of the
hear the merits of the case. Thus, Section 9 of Rule 58 requires case.
the issuance of a final injunction to confirm the preliminary
injunction should the court during trial determine that the acts In other words, when a judge is confronted with the application for
complained of deserve to be permanently enjoined. A issuance of a writ of preliminary injunction, he must be cautious in
preliminary injunction is a mere adjunct, an ancillary remedy issuing the same because its issuance must be exercised with utmost
which exists only as an incident of the main proceeding. caution, prudence and judiciousness.
Why are judges cautioned from issuing writs of preliminary

A preliminary injunction, as the term itself suggests, is merely
injunction?
temporary, subject to the final disposition of the principal action. An
Coclai v. CA held that preliminary injunction is a strong arm of equity
independent action merely to obtain preliminary injunction is
or a transcendent remedy to be used cautiously as it affects the
not allowed. Some substantive relief must be sought in the
respective rights of the parties.
principal action.
Some substantive relief must be sought in the principal action. The Coclai v CA
nature of a Preliminary Injunction is merely ancillary, an adjunct to
the main action and provisional because it exists only for a Facts: MTCC rendered judgment ordering the defendants to
temporary period during the pendency of the main action. restore the COCLAI members to their respective actual
possession of the lot subject of the dispute.
2. IT IS A PRESERVATIVE REMEDY – It is a preservative remedy
to ensure the protection of a party’s substantive rights or Subsequently, Special Patent was issued by then President
interests pending the final judgment in the principal action. A Aquino which covered the lot subject of the dispute and by virtue
plea for an injunctive writ lies upon the existence of a claimed thereof, an OCT in the name of NHA was issued. So, when COCLAI
emergency or extraordinary situation which should be avoided moved for the issuance of a writ of execution, a certificate of title
for, otherwise, the outcome of a litigation would be useless as had already been issued to NHA.
far as the party applying for the writ is concerned.
NHA filed a complaint for "Quieting of Title with Application for
a Writ of Preliminary Injunction" against the COCLAI and its
Hernandez v. NAPOCOR
president to enjoining the enforcement of the decision.
Facts: Petitioners filed a Complaint for Damages with Prayer for
Issue: WON NHA is entitled to the injunction prayed for? Yes!
the Issuance of a Temporary Restraining Order and/or a Writ of
Preliminary Injunction against Napocor.
Held: As an extraordinary remedy, injunction is calculated to
preserve or maintain the status quo of things and is generally
Trial court ordered the issuance of a writ of preliminary injunction
availed of to prevent actual or threatened acts, until the merits of
to stop Napocor from installing highvoltage cables and from
the case can be heard. As such, injunction is accepted as the
energizing and transmitting high-voltage electric current
"strong arm of equity or a transcendent remedy" to be used
through those cables
cautiously, as it affects the respective rights of the parties,
and only upon full conviction on the part of the court of its
Issue: Was the issuance of the writ proper? Yes!
extreme necessity. Its issuance rests entirely within the
discretion of the court taking cognizance of the case and is
Held: The issuance by the trial court of a preliminary injunction
generally not interfered with except in cases of manifest
found legal support in Section 3 of Rule 58 which merely required
abuse. Moreover, it may only be resorted to by a litigant for the
a probable violation of the applicant’s rights and a tendency
preservation or protection of his rights or interests and for no
to render the judgment ineffectual. In the case at bar, there was
other purpose during the pendency of the principal action.
adequate evidence on record to justify the conclusion that the
Napocor project would probably imperil the health and safety of
In the case at bench, NHA was entitled to the writ of injunction.
petitioners.
In view of this intervening development, the issuance of the

Indeed, probability was enough for injunction to issue as a
Special patent, NHA filed a complaint for quieting of title. Thus,
provisional remedy. In contrast, injunction as a main action was
it was only proper to grant the writ of preliminary injunction to
resorted to when one needed to establish absolute certainty as
restrain the enforcement of the decision of the MTCC as there
basis for a final and permanent injunction. Pending the final
was a material change in the status of the parties with regard
determination of the trial court on the main case, it was
to the said land.
prudent to preserve the status quo.
Clearly, the government, through the NHA will be prejudiced by

3. ISSUANCE MUST BE EXERCISED WITH GREAT CAUTION the impending enforcement of the decision which directs the said
(AM NO. 7-99) – Judges are enjoined to observe utmost agency to restore the members of petitioner to their respective
caution, prudence and judiciousness in the issuance of possession.
temporary restraining order and in the grant of writs of
preliminary injunction to avoid any suspicion that its issuance
The law provides that there is no power, the exercise of which is
more delicate and requires greater caution, deliberation, and sound
discretion, or which is more dangerous in a doubtful case than the Unciano Paramedical College Inc., et al., v CA
issuing of an injunction. It is considered the strong arm of equity
that never ought to be extended unless in cases of great injury, Facts: Private respondents filed a petition for injunction and
where courts of law cannot afford an adequate or commensurate damages with a prayer for a writ of preliminary mandatory
remedy in damages. injunction against petitioners. In compliance with an
announcement to see the Dean of Nursing who informed them
Kinds of Preliminary Injunction that they would be barred from enrollment for the second
Preliminary Commands a party to refrain from semester because they supposedly harassed a female student,
Prohibitory Injunction doing a particular act. invited an outsider to the school to speak before the students,
and also because the school has an arrangement with DECS not
Commands the performance of some
Preliminary to allow their students to put up a student council.
positive act to correct a wrong in the
Mandatory Injunction
past.
Issue: Whether the injunction prayed for be granted? No!
What is the generic purpose of preliminary injunction?
Held: In the present case, the contract between the parties was
Generally, the sole object of a preliminary injunction, whether
validly terminated upon the end of the first semester. This is the
prohibitory or mandatory, is to preserve the status quo until the
status quo. The trial court gravely abused its discretion in issuing
merits of the case can be heard.
the writ of preliminary mandatory injunction which ordered
petitioners to allow private respondents "to enroll for the first
STATUS QUO is the last, actual, peaceable, uncontested status
semester of school year 1990-1991." Guided by the Capitol case,
(LAPUS) between the parties that preceded the pending controversy.
certainly this writ will not restore the status quo but will go a
(Yujuico v Quiambao)
step backward, then restore the condition preceding the
status quo. Private respondents do not possess any clear legal
More specifically, in the case of First Global Realty and Development
right to re-enroll, corollarily, petitioners are not obliged legally to
Corporation v. San Agustin and Unciano Paramedical College, Inc., et
re-admit them.
al. v. CA the purpose of a preliminary prohibitory injunction is not
to correct a wrong of the past, in the sense of injury already
sustained, but to prevent further injury, while the purpose of a Preliminary prohibitory injunction is the first kind of injunction. This
preliminary mandatory injunction is to reestablish and maintain a commands a party to refrain from doing a particular act.
preexisting continuing relation between the parties, recently and
arbitrarily interrupted by the defendant, than to establish a new Essential Requisites for Issuance of WPI
relation. Memorize:
1. The applicant must have a clear and unmistakable right, that
First Global Realty and Development v. San Agustin is, a right in esse (existing);
Facts: [Respondent] filed a separate complaint for rescission of Injunction is not proper to protect a contingent or future right nor
the deed of absolute sale, annulment of the dacion en pago and is it a remedy to enforce an abstract right. The law says the applicant
cancellation of title and issuance of a new title with prayer for the must have a clear, existing and unmistakable right.
issuance of a temporary restraining order and/or a writ of
injunction against FGRDC, seeking to enjoin the latter from 2. There is a material and substantial invasion of such right;
taking possession of the subject property. 3. There is an urgent need for the writ to prevent irreparable
injury to the applicant; and
Issue: Whether the injunction prayed for be granted? Yes! 4. No other ordinary, speedy, and adequate remedy exists to
prevent the infliction of irreparable injury
Held: A preliminary injunction is a provisional remedy that a
party may resort to in order to preserve and protect certain rights If you notice the essential requisites are very strict. Some lawyers
and interests during the pendency of an action. It is issued to they just recite these requisites without any substantial evidence to
preserve the status quo ante - the last actual, peaceful, and support the same. That’s why judges usually deny the application for
uncontested status that preceded the actual controversy. writ of preliminary injunction.
In the present case, the status quo that is sought to be preserved Instances Where Preliminary Prohibitory Injunction Lies
is the possession of the property by respondent and his right to 1. Petitions for Relief from judgment entered through fraud,
use it as his dwelling, pending determination of whether or not accident, mistake or excusable negligence as provided Rules
he had indeed sold it to the Camachos and, consequently, 38 Section 5
whether the latters transfer of its ownership to petitioner via 2. Petitions for Certiorari, Prohibition and Mandamus. Rule 65 as
dacion en pago should be upheld. amended by A.M. No. 07-7-12-SC.
3. To restrain continued breach of a valid negative obligation.
Ollendorf v. Abrahamson
Facts: Plaintiff commenced an action, the principal purpose of
which is to prevent by injunction, any further breach of that part
of defendant's contract of employment by plaintiff, by which he

agreed that he would not "enter into or engage himself directly 5. To enjoin repeated trespass on land.
or indirectly in a similar or competitive business to that of
(plaintiff) anywhere within the Philippine Islands for a period of Rodulfa v. Alfonso
five years." The lower court granted a preliminary injunction, and
upon trial the injunction was made perpetual. Facts: Respondent filed a motion praying for the issuance of a
Issue: Whether the injunction was proper? Yes! writ of preliminary injunction against the plaintiff to desist and
refrain from molesting and retarding or otherwise disturbing the
Held: The admitted fact that plaintiff has failed to establish proof possession of Pablo del Moral of said fifteen parcels of land, until
of pecuniary damage by reason of the breach of the contract by further orders from the court.
defendant by the acts committed prior to the issuance of the
preliminary injunction is, of course, a bar or nay money judgment Issue: Can the injunction prosper? Yes!
for damages for the breach of the contract, but will not justify
us in permitting defendant to continue to break his contract Held: The rule that a court should not, by any means of a
over plaintiff's objection. The injury is a continuous one. The preliminary injunction, transfer property in litigation from the
fact that the court may not be able to give damages for that part possession of one party to another, is more particularly
of the breach of the contract which had already taken place when applicable where the legal title is in dispute and the party having
its aid was invoked is no reason why it should countenance a possession asserts ownership in himself.
continuance of such disregard of plaintiff's rights.
But the fact that the plaintiff might have been in sporadic
With respect to the contention that an injunction may only be possession of all or some of the lands in question, in the last
granted to prevent irreparable injury, the answer is that any months of 1945, having entered the same, by means of threats
continuing breach of a valid negative covenant is irreparable and intimidation, will not prevent the issuance of a writ of
by the ordinary process of courts of law. Injunctive relief is preliminary injunction in favor of herein respondent , in whose
granted in cases like this "upon the ground that the parties name said lands had been registered under the Torrens System,
cannot be placed in status quo, and that damages at law can and who has been in possession thereof, during the last 20 years,
afford no adequate compensation, the injury being a continuous as said possession of the plaintiff is completely and absolutely
one irreparable by the ordinary process of courts of law." illegal.
4. To restrain a spouse from alienating or encumbering Where a person other than the owner from time to time
conjugal property during the pendency of legal separation unlawfully enters upon land and commits depredations thereon,
or annulment proceedings. as by cutting wood or bamboo, the true owner, having
possession, can maintain an action to quiet title and enjoin the
De la Vina v Villareal intruder from the repetition of such trespass in the future. The
circumstance that the trespasser in such case also pretends to
Facts: The plaintiff therein, presented a motion alleging, among ownership of the same land is immaterial.
other things, that since the filing of her complaint she had
personal knowledge that the defendant was trying to alienate or The sole object of a preliminary injunction is to preserve the
encumber the property which belonged to the conjugal status quo until the merits can be heard. The status quo is the
partnership between the plaintiff and the defendant, to the last actual peaceable uncontested status which preceded the
prejudice of the plaintiff, and prayed that a preliminary injunction pending controversy.
be issued against the defendant restraining and prohibiting him
in the premises. 6. To restrain a city from proceeding with the abatement of
a nuisance “per accidents” before it has been judicially
Issue: Can the injunction prayed for prosper? Yes! declared to be such.
Held: If the defendant should dispose of all or any part of the Iloilo Ice and Cold Storage v. Municipal Council of Iloilo
conjugal property during the pendency of the action for divorce,
and squander or fraudulently conceal the proceeds, that act Facts: Plaintiff, upon authority granted by the defendant,
"would probably work injustice to the plaintiff," or that it would constructed an ice and cold storage plant in the city of Iloilo.
probably be "in violation of the plaintiff's rights, respecting the Sometime after the plant had been completed and was in
subject of the action, and tending to render the judgment operation, nearby residents made complaints to the defendant
ineffectual." In this case the plaintiff's rights sought to be that the smoke from the plant was very injurious to their health
protected not the right to administer the conjugal property, but and comfort. Thereupon the defendant appointed a committee
the right to share in the conjugal property upon the dissolution to investigate and report upon the matters contained in said
of the conjugal partnership. complaints.
In an action for divorce brought by the wife against the husband, The Iloilo Ice and Cold Storage Company, in which to proceed
in which the partition of the conjugal property is also prayed for, with the elevation of said smokestacks, and if not done, the
the wife may obtain a preliminary injunction against the husband, municipal president will execute the order requiring the closing
prohibiting the latter from alienating or encumbering any part of or suspension of operations of said establishment.
the conjugal property during the pendency of the action.

Issue: Whether or not plaintiff be enjoined from continuing its Due to the persistence of the sheriff in his determination to sell
operation? It depends. said parcel of land under said execution, a writ of preliminary
injunction was prayed for for the purpose of enjoining him from
Held: It is said that the plaintiff cannot be compelled to build executing said sale.
its smokestack higher if said stack is in fact a nuisance, for the
reason that the stack was built under authority granted by the Issue: Whether the injunction prayed for be granted? Yes!
defendant, and in accordance with the prescribed requirements.
The respondent by its answer denied that it was intending to Held: A preliminary injunction maintaining the status quo may
proceed with the abatement of the alleged nuisance by arbitrary properly issue whenever the questions of law or of fact to be
administrative proceedings. This is the issue of the present case, ultimately determined in a suit are grave and difficult, and injury
and upon its determination depends whether the injunction to the moving party will be immediate, certain and great, if it is
should be made permanent or whether the injunction should denied, while the loss or inconvenience to the opposing party will
be dissolved, which will be done in case it be shown that the be comparatively small or insignificant if it is granted. An
municipal officials intend to proceed with the abatement of injunction may be granted when the commission or continuance
the alleged nuisance in an orderly and legal manner. of some act complained of during the litigation would probably
work injustice, or that the acts complained of are in violation of
7. To restrain the voting of disputed shares of stock. the plaintiff’s rights.
The injunction in the present case was not an attempt to try title
Madrigal v Rodas
of real property, but an effort on the part of the plaintiffs to
protect their rights under an absolute title already acquired.
Facts: Upon motion of the petitioner and the filing of a bond,
While it is true that the plaintiffs might have permitted the sheriff
preliminary Injunction was issued restraining the defendants
to have sold their property for the purpose of paying the debts
"from making any further newspaper publication or circulating
of another and have resorted to an action upon the sheriff’s
any notice, printed or otherwise, and whatever its form, alleging
bond, yet, in our opinion, the plaintiffs were justified in seeking
the invalidity of Certificate of Stock, issued in the name of plaintiff;
the remedy which they obtained in the present case for the
and from recognizing the over-issued and void shares of
purpose of saving their property, and for the purpose of
Consolidated Investments, Inc. unlawfully issued by you in favor
preventing a cloud being cast upon it.
of the Magdalena Estate," and the said defendants and the
Magdalena Estate and any and all persons acting in their behalf,
"from making any use whatsoever of the said over-issued and Where Preliminary Prohibitory Injunction Does Not Lie:
invalid shares of Consolidated Investments, or from exercising
any right in the Consolidated Investments, in virtue of said over- 1.
issued and invalid shares, or from disposing of any or all of said When Preliminary Prohibitory Injunction
over-issued and void shares." Is Prohibited Under Statute
Issue: Whether the Injunction was proper? Yes! a. Labor Cases

In labor disputes, an employer cannot ask for the issuance of a
Held: Such writ is the most appropriate and effective remedy to preliminary injunction to enjoin a growing labor dispute except:
protect petitioner's interests. The fact that he attempted to
protect further his interests by prompting the Solicitor General to Under Article 255 of the Labor Code, as amended by Section 4 of
institute quo warranto proceedings against the directors of the BP Blg 227, no temporary or permanent injunction in cases growing
corporation who, in his opinion, had been elected unlawfully, out of labor disputes shall be issued by a court or other entity,
does not render the writ of preliminary Injunction inadequate. except by the following:
 The National Labor Relations Commission, which shall

8. To restrain a sheriff from selling property on execution not have the power and authority to enjoin or restrain any
belonging to the judgment debtor actual or threatened commission of any or all prohibited
or unlawful acts in any labor dispute which may cause
Codesal and Ocampo v. Ascue grave or irreparable damage to any party, provided that
said injunction be used only after due notice and hearing.
Facts: A judgment was rendered in favor of the plaintiff and
against the defendants, for a sum of money; That upon said  The Secretary of Labor and Employment, who shall
judgment an execution was issued and placed in the hands of the assume jurisdiction over or decide a labor dispute, which
sheriff: that the sheriff, at the direction of the plaintiff in said in his opinion is likely to cause strikes or lockouts
action, attached a certain piece or parcel of land. adversely affecting the national interest, or he may certify
That the plaintiffs herein being informed of said attachment, and the same to the commission (NLRC) for compulsory
alleging that they were the owners of said parcel of land, notified arbitration. Such assumption or certification shall have
the sheriff of that fact; that said notice was given in accordance the effect of automatically enjoining the intended or
with the requirements of the law; that notwithstanding said impending strike or lockout.
notice the sheriff persisted in his determination to sell said parcel
of land under said execution, the defendant herein having The moment the Secretary assumes jurisdiction; it can automatically
executed and delivered to the sheriff the bond required by law. enjoin the impending strike or lockout.
b. Collection of Tax Under RA 8424 c. Implementation of National Government Infrastructure
Projects Under RA 8975
General Rule: No court may grant an injunction to restrain the (An Act to Ensure the Expeditious Implementation and Completion
collection of any internal revenue tax, fee or charge imposed by the of Government Infrastructure Projects by Prohibiting Lower Courts
NIRC of 1997. from Issuing Temporary Restraining Orders, Preliminary Injunctions
Basis: Lifeblood theory of Taxation, Demand and or Preliminary Mandatory Injunctions, Providing Penalties for
Necessity Principle Violations thereof, and other Purposes, enacted November 7, 2000)
Exception: Where some special circumstances are shown to exist, GR: The issuance of temporary restraining orders, preliminary
as an irreparable injury. injunctions, or preliminary mandatory injunctions against national
government infrastructure projects, is prohibited under this law.
Sarasola v Trinidad
40 Phil 252, 1919 No court, except the Supreme Court, shall issue any TRO or
preliminary injunction or preliminary mandatory injunction against
FACTS:
The complaint in this case was filed for the purpose of having an the government, or any of its subdivisions or officials, whether
public or private, acting under the government direction to
injunction issue to restrain the CIR, from the alleged illegal
collection of taxes. The defendant interposed a demurrer to the restrain, prohibit or compel the following acts:
 Acquisition, clearance, and development of the right of way
complaint, based on the ground that the court had no jurisdiction
of the subject-matter of the action because of the provisions of and/or on site or location of any government project
 Bidding or awarding of contract/project of the national
Section 1578 of the Administrative Code of 1917:
government
Sec. 1578. Injunction not available to restrain collection of  Commencement, prosecution, execution, implementation,
tax. No court shall have authority to grant an injunction to operation of any such contract or project
restrain the collection of any internal-revenue tax.  Termination or rescission of any such contract/project; and
 The undertaking or authorization of any other lawful activity
RULING: Issuance of injunction is not proper. necessary for such contract/project.
An exceptional circumstance which serves to take cases out of XPN: This prohibition shall not apply when the matter is of extreme
the general rule comes under the head of irreparable injury. urgency involving a constitutional issue, such that unless a
There can be no case of equitable cognizance "where there is a temporary restraining order is issued, grave injustice and irreparable
plain and adequate remedy at law. And except where the special injury will arise. The applicant shall file a bond in an amount to be
circumstances which we have mentioned exist, the party of whom fixed by the court, which shall accrue in favor of the government if
an illegal tax is collected has ordinarily ample remedy, either by the court should finally decide that the applicant was not entitled to
action against the officer making the collection or the body to the relief sought.
whom the tax is paid." Accordingly, it was held that since the
plaintiff had his action after the tax was paid "against the officer Comment: Only the Supreme Court provided that the matter
or the city to recover back the money," a bill in equity to restrain involves a constitutional issue. Very limited.
the collection of a tax would not be sustained. If the ground
alleged is alone that the tax was illegal, this is not sufficient for National Government Project, Definition
the maintenance of an injunction. Refers to all current and future national government infrastructure,
engineering works and service contracts, including projects
undertaken by GOCCs, all projects covered by RA 6957 (Build and
David v Ramos
Operate and Transfer Law) and other related and necessary activities
90 Phil 351, 1951
such as site acquisition, supply and or installation of equipment and
All the allegations of the respondents to the effect that the materials, implementation, construction, completion, operation and
maintenance.
dismissal of the criminal case is res judicata or a bar to the
collection by distraint and levy; and that Republic Act No. 55,
NOTE: The prohibition applies in all cases, disputes or controversies
known as the War Profits Tax Law, is unconstitutional, should be
set forth as part of the cause of action in the complaint that may instituted by private party, including but not limited to cases filed
by bidders or those claiming to have rights through such bidders
be filed against the Collector of Internal Revenue for recovery of
the tax after its payment, but not in an action for prohibition or such contract or project.
injunction.
Normally, these government projects have bidders. What they
normally do, if these bidders lose in the bidding, they file a TRO,
The respondents cite some cases in the United States in which
the principle that the collection of taxes should not be restrained injunction and etc. without knowing that it’s prohibited.
by injunction has been found subject to certain exceptions.
d. Foreclosure of Real Estate Mortgages by Government
However, it has not been shown in the present case that extra-
Financing Institutions Under PD 385.
ordinary and exceptional circumstances exist so as to take this
case out of the rule.
The law prohibits the issuance of any restraining order, temporary
or permanent injunction shall be issued by the court against any
government financial institution in any action taken by such

institution in connection with the mandatory foreclosure where the h. Injunctions Against Public Administrative Officers in The
arrears amount to, or at least 20% of the total outstanding Issuance of Public Grants for The Exploitation of Natural
obligations, including interest and other charges as appearing in the Resources Under PD 605.
book of accounts and/or related records of the financial institution.
Where Preliminary Prohibitory Injunctions Was Held Improper
Filipinas Marble Corporation v IAC
142 SCRA 180 a. To restrain the sale of conjugal properties where the claim can
be annotated on the title as a lien, such as the husband’s
RULING: obligation to give support. (Saavedra v Estrada, 56 Phil 33)
PD No. 385 was issued primarily to see to it that government
financial institutions are not denied substantial cash inflows, b. To restrain a mayor proclaimed as duly elected from assuming
which are necessary to finance development projects all over the his office. (Cereno v. Dictado, GR 81550, April 15, 2988)
country, by large borrowers who, when they become delinquent,
resort to court actions in order to prevent or delay the c. To restrain consummated or ministerial acts (PNB v Adil, GR
government’s collection of their debts and loans. 52853, November 2, 1982)
The government, however, is bound by basic principles of

fairness and decency under the due process clause of the Bill I. Not Proper to Restrain the Disposition of a Case on the
of Rights. P.D. 385 was never meant to protect officials of Merits
government lending institutions who take over the management
of a borrower corporation, lead that corporation to bankruptcy GSIS v. Florendo
through mismanagement or misappropriation of its funds, and GR 48603
who, after ruining it, use the mandatory provisions of the decree
to avoid the consequences of their misdeeds. The rule is predicated on the proposition that the ownership as
well as the possession of the (properties) in dispute are the main
The designated officers of the government financing institution issue and that the relief was prayed for before the issue had been
cannot simply walk away and then state that since the loans were decided on the merits. The philosophy of the rule seems to be
obtained in the corporation’s name, then P.D. 385 must be that before the issue is determined in the light of the evidence
peremptorily applied and that there is no way the borrower presented, justice and equity demand that the parties be
corporation can prevent the automatic foreclosure of the maintained in their status quo so that no advantage may be given
mortgage on its properties once the arrearages reach (20%) of to one to the prejudice of the other, and so it was ruled that
the total obligation no matter who was responsible. Only after unless there is a clear pronouncement regarding ownership and
trial on the merits of the main case can the true amount of possession of the land, or unless the land is covered by a Torrens
the loan which was applied wisely or not, for the benefit of title pointing to one of the parties as the undisputed owner, a
the petitioner be determined. Consequently, the extent of writ of preliminary injunction should not issue to take the
the loan where there was no failure of consideration and (properties) out of possession of one party to place it in the
which may be properly satisfied by foreclosure proceedings hands of another.
under P.D. 385 will have to await the presentation of
evidence in a trial on the merits. In the order, the judge declared the questioned properties as
movable properties not included in the real estate mortgage
e. Issuance and/or Implementation of Freeze Orders Under contract, which are the main issues raised by Ang in his
RA 9160 As Amended by RA 9194 complaint. Equally pertinent is the rule that courts should avoid
(An Act Amending RA 9160 (2001), otherwise known as the “Anti issuing a writ of preliminary injunction which, in effect, would
Money Laundering Act of 2001,” enacted March 7, 2003) dispose of the main case without trial (or would result in) a
prejudgment of the main case and a reversal of the rule on the
No court, except the Court of Appeals or the Supreme Court, shall burden of proof since it would assume the proposition which the
issue a temporary restraining order or writ of injunction against any petitioner is inceptively duty bound to prove.
freeze order of accounts issued by the AMLC where there has been
a determination of probable cause that the subject account is Ortigas and Company Limited Partnership v. CA
dubious in character. GR 79128
f. Injunctions to Restrain the Presidential Agrarian Reform Issue: Whether the court committed a grave abuse of discretion
Council, Department of Agrarian Reform, the Department of in denying plaintiffs' application for a preliminary mandatory
Agriculture, the Department of Environment and Natural injunction.
Resources and the Department of Justice under RA 6657
(CARP Law), as amended by RA 9700. We find no such grave abuse of discretion which would justify
the setting aside of its order by the court and the issuance by the
g. Injunction Against the Asset Privatization Trust (APT) latter of the writ of preliminary mandatory injunction.
under Proclamation No. 50 as amended by Proclamation
No. 50-A. The writ of preliminary injunction, in general, cannot be sought
as a matter of right, but its grant or refusal rests in the sound
discretion of the court under the circumstances and the facts of
the particular case. The writ is the "strong arm of equity" and commanding the petitioners to vacate the barong-barong and
therefore should not be used to sanction inequity. lot in question."
The defendant in the case was able to show that the electricity Issue: Was it proper to stop the execution of judgment? No!
consumed per month by the King spouses was way above the
amount of the monthly rentals which they were paying to the Held: The execution of the judgment does not affect or interfere
petitioner, thereby in effect making the latter subsidize the with the course of the appeal. There the petitioners-defendants
business of the former in the leased premises. Such an obviously may yet prove during the trial that they have, a right to the lot
inequitable situation by which respondents enriched themselves where the barong-barong formerly stood, although this is rather
at the expense of petitioner cannot be ignored, as private problematical for the reason that, according to the facts as well
respondents wanted the trial court to do, by insisting on a strict as the assertions of the counsel in the course of the oral
adherence to the letter of the contract, which petitioner argument, the plaintiffs-respondents are and had been renting
questioned, alleging inter alia obvious mistake and collusion, and this lot from the City of Manila even before the war and have
non-approval of the contract by the principal of the signatory for even obtained a permit from the City Engineer to build a more
the lessor defenses which must eventually be considered by the substantial house in place of the barong-barong, while the
court a quo in deciding the merits of the case. It is thus not a petitioners-defendants limit their claim to being merely
simple case of a contracting party having made a bad bargain squatters, although the first ones to come on the lot in question
and who must be made to abide by it. The trial court, considering after liberation.
the equities of the case, refused to issue the preliminary
mandatory injunction. We hold that in refusing to do so the trial It is, therefore, clear that the Court was warranted in awarding
court did not commit a grave abuse of discretion. rent, or as reasonable compensation for the use and occupation
of the barong-barong and the lot on which it stood, although the
In general, courts should avoid issuing a writ of preliminary petitioners in their complaint only asked for damages.
injunction which in effect disposes of the main case without trial.
This is precisely the effect of the writ of preliminary mandatory In view of the foregoing, we hold that the action and order of
injunction issued by the respondent appellate court. Having Judge Dinglasan in giving due course to the execution of the
granted through a writ of preliminary mandatory injunction the judgment appealed from were both legal and authorized by
main prayer of the complaint, there is practically nothing left for law. As to the petition for a writ of Injunction, it is obvious that
the trial court to try except the plaintiffs' claim for damages. it is unwarranted. There is no longer anything that may be
restrained. The judge has already ordered execution of the
II. Not Proper to Stop the Execution of Judgment Where the judgment and the sheriff of Manila has already carried out the
Judgment Was Already Executed. order and demolished the barong-barong. The petition for the
writ of certiorari is dismissed and the petition for the writ of
What is your remedy to avoid execution of Judgment? Injunction is denied, with costs against the petitioners.
Rule 38 – File a Petition for Relief from final order or judgment.
NOTE: The general premise is that you cannot stop execution of
Meneses v. Dinglasan judgment obviously when the judgment was already executed also
81 Phil. 470 (1948) if judgment is also final and executory then we have execution as a
matter of right because of immutability of judgment.
FACTS: After the liberation (WWII) of the City of Manila, said
respondents constructed on the same spot a make-shift structure How can we avoid execution of that final judgment?
box barong-barong using in its construction part of the materials, 1. File a petition for relief of final judgment under Rule 38.
especially iron roofing salvaged from Their burnt house on the
lot. They lived in said house and resumed paying rent to the city 2. Another remedy is to file a motion for Annulment of
for the use of the lot at the rate of P7 a month. Judgment under Rule 47 on the grounds of extrinsic fraud
and lack of jurisdiction. The grounds under rule 47 are
According to said respondents the petitioners were invited and limited.
came to live with the respondents in the latter's barong-barong.
Petitioners claim that, although they are mere squatters, 3. Another remedy is when there has a change to the situation
nevertheless, were the ones who built the barong-barong in of the parties which would warrant an injunctive relief. This is
question. Both parties filed cases against each other in court. very broad, when there is a change to the situation on the
parties.
The petitioners claim that Judge Dinglasan acted in excess and
abuse of his discretion in granting execution of the judgment, Note: Motion for Reconsideration is not allowed because the
and so brought the case here on certiorari with a petition for a judgment has already been final and executory at this stage.
writ of Injunction, to restrain the judge "from commanding the
sheriff of Manila to carry out its order, as well as to order the stay Another Note: These 3 exceptions are based on equity.
of execution or rather to revoke its order, and to allow the parties
to terminate the hearing of the case pending before it," and also
"to restrain the sheriff of Manila to carry out the order in his hand

III. Not Proper for the RTC to Issue a Writ of Injunction Against
the Register of Deeds if its Effect is to Render Nugatory a Writ And the Rules and Regulations Implementing the Labor Code, in
of Execution Issued by the National Labor Relations dogmatic terms provides that "no temporary injunction or
Commission. restraining order in any case involving or growing out of a labor
dispute shall be issued by any court or other entity.”
Ambrosio v. Salvador
G.R. No. 47651, December 11, 1978, 87 SCRA 217 This Court set aside an order issued by the CFI restraining the
enforcement of a decision of the ad hoc NLRC as affirmed by the
Thirty-nine (39) taxi-drivers filed a complaint with the NLRC Secretary of Labor.
against Extraco Taxi. Extraco Taxi was identified as a public service
operator. The plaintiffs prayed that certain exactions or wage There is a ruling that the CFI cannot issue a writ of injunction or
deductions made by Extraco Taxi be declared void and returned prohibition against the Court of Industrial Relations because the
to them and that the defendant be required to remit to the SSS CIR is equal in rank with the CFI. In that La Campana case, it
their contributions. appears that La Campana Food Products filed an action for
prohibition in the CFI in order to prevent the sheriff from
The case was submitted for arbitration to an NLRC hearing enforcing the writ of execution issued by the CIR for the
officer. On appeal the NLRC reduced the claim to P64K. The satisfaction of its final and executory judgment. It was ruled that
Secretary of Labor affirmed that decision. the CFIh ad no jurisdiction over the subject-matter of the case.
To satisfy the judgment, the sheriff of the NLRC levied upon Similarly, a CFI has no authority to issue an injunction against the
three. The levy was made on the assumption that Lim Pa was the Public Service Commission or any other court or semi-judicial
real judgment debtor doing business under Extraco Taxi. body of equal rank.
Lim Pa filed in the NLRC a motion to quash the writ of execution Hence, for lack of jurisdiction, Judge should dismiss the
on the grounds that he was not a party in the case and that he injunction case filed by Lim Pa against the thirty-seven
was never sued in the NLRC. In denying that motion, the LA respondents, the NLRC, its sheriff and the register of deeds.
pointed out that in the counter-affidavit of the personnel
manager of Extraco Taxi, Lim Pa was categorically pinpointed as Ramos, Sr. v. Court of Appeals
the sole owner and exclusive operator of Extraco Taxi, which was G.R. No. 80908-09, May 24,1989, 173 SCRA 550
a division of Extraco Transportation.
Facts: Petitioners filed before the RTC a Complaint for specific
Instead of exhausting his remedies in the NLRC, Lim Pa filed an performance, rescission of contract and damages against the
injunction complaint with the CFI against the 39 claimants, the GSIS, COMBANK and the Atrium Capital Corporation.
NLRC, its sheriff, and the register of deeds. He prayed that the
NLRC sheriff be enjoined from proceeding with the levy and The petitioners prayed, among others, for the issuance of a
execution sale, that the register of deeds be restrained from restraining order or writ of preliminary injunction enjoining the
recording the sale, and that the defendants be ordered to pay GSIS and COMBANK from pushing through with a reported plan
him damages. to sell COMBANK to the FNBB and a group of Filipino investors
represented by Tordesillas.
Acting on that complaint, the lower court issued an order
restraining the register of deeds from recording the sale of the In support thereof, the petitioners alleged that the GSIS has no
lots. legal right to sell COMBANK inasmuch as both the GSIS and
COMBANK failed to comply with their obligations to the
Issue: Whether the CFI can issue an injunction against the NLRC? petitioners as embodied in an Agreement executed by the
No! petitioners and the IUCP investors group where petitioners sold
to the latter 187,649 shares in the Overseas Bank of Manila under
Held: It is incontestable that its far-reaching effect is to freeze the terms and conditions provided therein.
the execution and render nugatory the NLRC’s final and
executory decision. The relief sought by Lim Pa in his injunction In sum, the petitioners maintained that they have considerable
suit is for the recall of the writ of execution issued by the NLRC proprietary interest in COMBANK and, accordingly, their consent
and for permanently enjoining the execution, against his must be obtained before COMBANK can be legally sold to
properties, of the judgment rendered against Extraco Taxi. interested purchasers.
Obviously, the order of injunction is an unwarranted
interference with a process or writ issued by the NLRC. RTC: Issued the restraining order and after due hearing, the trial
court issued the writ of preliminary injunction. FNBB and
The CFI cannot issue an injunction against the NLRC which is the Tordesillas sought reconsideration of the action taken. GSIS and
successor of the Court of Industrial Relations and has the same COMBANK also asked the trial court to reconsider the injunctive
rank as the CFI. That holding obviates confusion and obstruction relief it granted.
in the administration of justice. Section 2, Rule 58 of the Rules of
Court explicitly provides that a judge of the CFI may issue a writ CA issued a writ of preliminary injunction against the Trial Court’s
of preliminary injunction "in any action pending in an inferior orders.
court within its district.”
Issue: Whether it was proper for an injunctive relief granted by NOTE: Injunction is not proper when the act sought to be prevented
the CA against the trial court from preventing the sale by the GSIS has already been committed.
of the COMBANK to the FNBB and a group of investors is the
issue in the instant Petition. Yes! Under Rule 58, an injunctive suit is not the remedy when the act
sought to be prevented is already a committed or consummated act.
Held: The CA did not commit a grave abuse of discretion
amounting to lack of jurisdiction when it issued the questioned d. Injunction Is Not Proper Where an Action for Damages Would
writ of preliminary injunction. Adequately Compensate the Injuries Caused.
The Petition should also be dismissed on another ground. The The very foundation of our jurisdiction to issue a writ of injunction
act sought to be enjoined in this case, i.e., the sale of COMBANK rests on the following:
to the FNBB and the group of Filipino investors, is already a 1. The possibility of irreparable injury;
consummated act. The established principle is that when the 2. The inadequacy of pecuniary compensation; and
events sought to be prevented by injunction or prohibition have 3. The prevention of multiplicity of suits.
already happened, nothing more could be enjoined or
prohibited. Thus, the instant Petition is moot and academic. Where facts are not shown to bring the case within these conditions,
the relied of injunction should be refused.
Rivera v. Florendo
G.R. No. 57586, October 78, 1986, 144 SCRA 658 Golding v. Balatbat, et al.
36 Phil 951
Facts: Petitioner corporation was organized and registered under
Philippine laws with a capital stock of P1M divided into 10K Injunction should not be granted to take property out of the
shares of P100 par value each by the Rivera and (4) other possession and control of one party and to place it in the hands of
incorporators. Sometime thereafter Rivera increased his another whose title has not been clearly established by law.
subscription from the original 1,250 to a total of 4899 shares.
The writ of Injunction should not be issued except upon
Subsequently, Isamu Akasako, a Japanese national and co- condition that no other ordinary, speedy and adequate remedy
petitioner who is allegedly the real owner of the shares of stock is available to avoid or repair the damage done, or which may be
in the name of Aquilino Rivera, sold 2550 shares of the same to done by a new violation of the plaintiff's rights.
Milagros Tsuchiya for a consideration of P440K with the
assurance that Tsuchiya will be made the President and Lourdes While the writ of Injunction may be issued to restrain acts of
Jureidini a director after the purchase. Aquilino Rivera who was trespass and the illegal interference with the possession of land,
in Japan also assured private respondents by overseas call that the cases are very few when said writ should issue Ex Parte and
he will sign the stock certificates because Isamu Akasako is the before the defendant is given a hearing; and it should never
real owner. issue when an action for damages would adequately
compensate the injuries caused. The very foundation of the
However, after the sale was consummated and consideration jurisdiction to issue the writ rests in the probability of irreparable
was paid with a receipt of payment therefor shown, Aquilino injury, the inadequacy of pecuniary compensation, and the
Rivera refused to make the indorsement unless he is also paid. prevention of the multiplicity of suits, and where facts are not
shown to bring the case within these conditions, the relief of
Issue: Whether the CFI has jurisdiction over the petition for Injunction should be refused.
mandamus and receivership "as well as in placing the corporate
assets under provisional receivership in the guise of a writ of Injunctions to prevent trespass and the illegal interference with
preliminary mandatory injunction. No! the possession of land should not be granted, when the plaintiff's
title is in dispute and has not been established at law, until the
Held: An intracorporate controversy would call for the question of title is settled in a proper proceeding brought for that
jurisdiction of the Securities and Exchange Commission. purpose.
On the other hand, an intra-corporate controversy has been There are cases, however, where an Injunction may be granted in
defined as "one which arises between a stockholder and the order to preserve the status quo of property until the title can be
corporate. There is no distinction, qualification, nor any determined in a proper action.
exemption whatsoever."
But even then it should not be granted Ex Parte. The defendant
This Court has also ruled that cases of private respondents who should be given an opportunity to be heard. The remedy by
are not shareholders of the corporation, cannot be a "controversy Injunction is never the proper remedy to deprive a person of
arising out of intracorporate or partnership relations between the possession of property. If the person in possession is in
and among stockholders, members or associates; between any possession illegally there exist other adequate, speedy and
or all of them and the corporation, partnership or association, of summary remedies forcible entry and detainer and ejectment.
which they are stockholders, members or associates, These remedies are adequate.
respectively."
IN THE CASE: Had the defendants appeared when they were
cited so to do and alleged and showed that they were in
possession of the land in question as owners thereof, the action vessels, which are subject to forfeiture as instruments of the
would have resolved itself into one of ejectment, and a motion crime, to be utilized as evidence in Criminal for illegal fishing
properly presented and properly supported to dissolve the pending in said court. The said vessels were seized while
temporary Injunction would have been denied. Of course, upon engaging in prohibited fishing within the territorial waters of
the theory of the plaintiff, that he was the owner of the land in Palawan and hence within the jurisdiction of the CFI Palawan, in
question and in possession thereof and that fact not having been obedience to the rule that "the place where a criminal offense
denied and that the defendants were mere trespassers thereon was committed not only determines the venue of the action but
and were illegally and maliciously interfering and molesting the is an essential element of jurisdiction"
plaintiff in his quiet and peaceable enjoyment of the possession
of his property, then Injunction was the proper remedy for the The jurisdiction over the vessels acquired by the CFI Palawan
purpose of preventing a repetition of said illegal acts. cannot be interfered with by another CFI.. Only the Palawan court
can order the release of the two vessels. Not even the Secretary
The remedy by Injunction is the proper remedy to prevent of Agriculture and Natural Resources nor the Fisheries
repeated trespasses upon real property. But the trespass which Commissioner can direct that the fishing boats be turned over to
will be enjoined must be of such a nature that an action for private respondent without risking contempt of court.
damages will not adequately compensate the loss occasioned
thereby. It is basic that one court cannot interfere with the judgments,
orders or decrees of another court of concurrent or coordinate
e. When Issued Against Courts or Tribunals of Co-Equal Rank. jurisdiction having equal power to grant the relief sought by
Injunction; because if coordinate courts were allowed to interfere
A court may not interfere by injunction with the judgments or orders with each other's judgments, decrees or injunctions, the same
of another court or quasi-judicial agency of coordinate and would obviously lead to confusion and might seriously hinder the
concurrent jurisdiction; administration of justice.
NOTE: This is known as the comity of courts principle. A court may Abiera v. Court of Appeals
not interfere by injunction of judgments or orders of another court G.R. No. 26294, May 31, 1972, 45 SCRA 314
or quasi-judicial agencies of co-equal jurisdiction.
FACTS: Puentevella filed a petition with a prayer "that an ex-parte
Roldan, Jr. v. Arca writ of preliminary injunction be issued, enjoining the Hon. Carlos
G.R. 25434, July 25, 1975, 65 SCRA 336 Abiera from enforcing the writ of preliminary injunction issued by
him of the CFI Negros Occidental and from further issuing any
Facts: Respondent company filed with the CFI Manila a civil case other writ or process which would in any manner affect the
against Fisheries Commissioner Roldan, for the recovery of enforcement of the judgment rendered by Branch II of the same
fishing vessel Tony Lex VI which had been seized and impounded CFI of Negros Occidental; that, after hearing, judgment be
by Fisheries Commissioner through the Philippine Navy. declared making the writ of preliminary injunction prayed for in
this case permanent."
Company prayed for a writ of preliminary mandatory injunction
with respondent court, but said prayer was, however, denied. Issue: Whether Branch VI of the CFI of Negros Occidental acted
with authority in enjoining the Provincial Sheriff from proceeding
CFI Manila set aside its order and granted company's MR praying with the execution sale of properties levied upon by him pursuant
for preliminary mandatory Injunction. Thus, company took to a final judgment rendered by Branch II?
possession of the vessel Tony Lex VI from herein petitioners by
virtue of the above-said writ. Held: The doctrine as thus formulated is well settled, and has
been adhered to consistently whenever justified by the facts in
Petitioners filed a MR of the order issuing the preliminary writ on order to avoid conflict of power between different courts of
the ground, among others, the Philippine Navy received from the coordinate jurisdiction and to bring about a harmonious and
CFI Palawan two orders requiring the Philippine Navy to hold the smooth functioning of their proceedings. For the doctrine to
fishing boats in custody and directing that the said vessels should apply, however, the injunction issued by one court must interfere
not be released until further orders from the Court. with the judgment or decree issued by another court of equal or
coordinate jurisdiction, and the relief sought by such injunction
Issue: Whether it was proper for CFI Manila to issue the writ of must be one which could be granted by the court which rendered
preliminary mandatory Injunction? No! the judgment or issued the decree.
Held: Judge of the CFI Manila acted without jurisdiction and with In the case at bar, there is no question that the action filed by the
grave abuse of discretion when he issued the order directing the De la Cruz spouses wherein they claim ownership of the
issuance of a writ of preliminary mandatory Injunction and when properties levied upon by the provincial sheriff is sanctioned by
he refused to reconsider the same. Section 17 of Rule 39.
When the Judge issued the writ of preliminary mandatory The right of a person who claims to be the owner of property
Injunction, the fishing vessels were already under the levied upon on execution to file a third-party claim with the
jurisdiction of the CFI Palawan by virtue of its orders of the sheriff is not exclusive, and that he may file an action to vindicate
Provincial Fiscal, directing the Philippine Navy to detain said his claim even if the judgment creditor files an indemnity bond
in favor of the sheriff to answer for any damages that may be of defendants MASD and goods of its incorporators only up to
suffered by the third-party claimant. By "action," as stated in this the extent of their unpaid subscriptions.
Rule, what is meant is a separate and independent action, such
as was resorted to by the third-party claimants in this case. It is this alias writ which Sheriff intended to implement upon the
funds of herein private respondents which gave rise to the action
It has been seen that a separate action by the third party who for Injunction filed by them with respondent RTC Makati, Branch
claims to be the owner of the property attached is appropriate. If 133. In this civil case, the presiding judge issued an order
this is so, it must be admitted that the judge trying such action granting preliminary Injunction and later denied MII's motion to
may render judgment ordering the sheriff or whoever has in reconsider said order. Hence this petition for certiorari.
possession the attached property to deliver it to the plaintiff-
claimant or desist from seizing it. It follows further that the court Issue: Whether the RTC Makati Branch 133 may restrain and
may make an interlocutory order, upon the filing of such bond as enjoin the execution of a final and executory judgment of RTC
may be necessary, to release the property pending final Makati Branch 146? Yes!
adjudication of the title. Jurisdiction over an action includes
jurisdiction over an interlocutory matter incidental to the cause Held: There is no question that the action filed by private
and deemed necessary to preserve the subject matter of the suit respondents herein, as third-party claimants, before RTC Makati,
or protect the parties' interests. Branch 133, wherein they claimed that their bank accounts
cannot be garnished pursuant to a judgment where they are not
f. No writ may be issued by the Regional Trial Court against quasi- parties thereto is within the respondent court's jurisdiction. The
judicial bodies of equal rank, such as the respondent court found basis in exercising its jurisdiction in
 Social Security Commission, Section 17, Rule 39 of the Rules of Court
 Government Service Insurance Commission,
 Securities and Exchange Commission, Jurisdiction over the subject matter of the case is conferred by
 Intellectual Property Office, law, and this jurisdiction is determined by the allegations of the
 Commission on Elections, complaint. In the allegations of the complaint filed by the
 Workmen’s Compensation Commission respondents, they claimed that there remains no unpaid
 others. subscriptions to which they may be held accountable for, thus,
they are third parties insofar as the judgment against MASD is
EX: If you will be lawyers and you will be confronted by a situation concerned. They claim that the court which issued the alias writ
wherein your client saying they want to file a TRO or an injunction of execution authorizing the garnishment of their bank accounts
on the order made by the MTC Branch 1 because they feel aggrieved in satisfaction of the debt of MASD, acted outside of its
so you go to another branch i.e. MTC Branch 2 and you filed the jurisdiction. It is these allegations which confer jurisdiction upon
TRO, that is prohibited because they (MTC Branch 1 and 2) are both respondent court.
co-equal courts.
The rule that no court has power to interfere by Injunction with
GR: Comity of courts principle. A court may not interfere by the judgments or decrees of a concurrent or coordinate
injunction with the judgments or orders of another court or quasi- jurisdiction having equal power to grant the injunctive relief
judicial agencies of coordinate or concurrent jurisdiction. sought by Injunction, is applied in cases where no third-party
claimant is involved, in order to prevent one court from nullifying
XPN: Salas v. Castro the judgment or process of another court of the same rank or
category, a power which devolves upon the proper appellate
Salas v. Castro court.
G.R. No. 100416 December 2, 1992
Because the power of the court in the execution of its judgment
FACTS: Masterbuilt Industries, Inc. (MII), a manufacturer of extends only to properties belonging to the judgment debtor,
ZEBRA brand of utility motor vehicles, obtained judgment in Civil the Rules of Court grants a third-party claimant remedies.
Case for "Replevin or Damages" in its favor and against Master
Ace Sales and Development, Inc. (MASD), before the RTC Makati, Here the SC ruled that if a third-party claimant is involved. Thus, if a
Branch 146. In this judgment, MASD was ordered to pay MII in third party asserts a claim over the property levied upon by the
the principal sum of P983K representing the purchase price of (5) sheriff, the said 3rd party may vindicate his claim by an independent
units of utility motor vehicles delivered to MASD by MII, as one case filed upon the proper court which may issue an injunctive writ
of its dealers. After this judgment became final, MII moved for to stop the execution of the judgment writ.
the issuance of the writ of execution, which the court did,
directing the deputy sheriff, to implement the judgment. Upon NOTE: You might confuse this remedy with the remedy on terceria.
Sheriff's Return showing that the writ of execution was The principle of terceria you have to file your case with the same
unsatisfied, as MASD had already moved out of its address, court.
without leaving any forwarding address and upon verification
with the SEC showing that certain incorporators had remaining
balances or unpaid subscriptions.
MII moved for the issuance of an Alias Writ of Execution praying

that judgment be enforced against the funds, goods and chattels
g. To Prevent the Implementation or Execution of Contracts for enjoined or prohibited. Thus, the instant Petition is moot and
the Operations of a Public Utility. academic.
G&S Transport Corporation v. Court of Appeals The petitioners, however, may still pursue their claim against the
G.R. No. 120287, May 28,2002, 38 SCRA 262 GSIS in the trial court pursuant to the provisions of the
Memorandum of Agreement and the Purchase and Sale
Facts: The trial court issued a TRO enjoining MIAA from awarding Agreement and the accompanying documents.
to 2000 TRANSPORT and NISSAN the new concessions to
operate the NAIA coupon taxi service and from removing G&S as i. Where the Injunction Is Not Prayed for in the Complaint
such concessionaire, and thereafter scheduled for hearing the
application for preliminary injunction. Courts should not issue orders or injunctions beyond those prayed
for in the complaint.
The appellate court issued a TRO prohibiting the enforcement of
the writ of preliminary injunction. While the TRO was in place, The Chief of Staff, AFP v. Guadiz, Jr.
MIAA terminated the month-to-month renewal of the G.R. No. 35007, December 29, 1980, 101 SCRA 827
concession contract with G&S and executed the concession
contracts with the winning bidders 2000 TRANSPORT and Where Judge issued ex-parte an order clarifying the restraining
NISSAN which immediately commenced their respective coupon order in the sense that the Diosamer Development Corporation
taxi services at the NAIA. was allowed to cut and remove logs in its licensed area
"notwithstanding the respective conflicting claims of the
G & S prayed for a permanent injunction to bar the award of the defendants and the plaintiff that said area is inside or outside the
concession contract to 2000 TRANSPORT and NISSAN. Fort Magsaysay Military Reservation as the case may be", said
Judge acted with grave abuse of discretion amounting to lack of
Held: It is well settled that the issue of propriety of obtaining a jurisdiction, because his clarificatory order went beyond what
preliminary injunction dies with the main case from which it was prayed for in the Complaint, that plaintiff be allowed to
logically sprang. Such a provisional remedy, like any other pass through the area Fort Magsaysay Military Reservation
interlocutory order, cannot survive the main case of which it is traversed by the "Bignay" and "Sumandig-Alulag" roads.
but an incident. Indeed what more could this Court enjoin when
the complaint has already been dismissed? To be sure, even a Indeed, the clarificatory orders has prejudged the conflict
ruling granting the petition at bar would not revive the civil case between respndent corporation and the petitioners which
much less change our ruling in the petition for certiorari under amounted to a decision of the case on the merits in favor of said
Rule 65. The remedy in question is precisely termed preliminary corporation. Sound discretion is no license to frustrate the law by
since it is meant to restrain acts prior to the rendition of a defeating its objectives.
judgment or a final order.
With regard to the Chief of Staff, AFP v. Guadiz, Jr. case, the Judge
The assailed Decision of CA was in accord with law and committed grave abuse of discretion when he issued an injunction
jurisprudence. For starters, it is well settled that before a writ of when the same was not prayed for in the complaint.
preliminary injunction may be issued, there must be a clear
showing by the complainant that there exists a right to be j. To restrain criminal prosecutions.
protected and that the acts against which the writ is to be
directed are violative of established right. In the instant case, it is GR: You cannot file an injunctive case to restrain criminal
an undisputed fact that the contract of G & S for coupon taxi prosecution.
service with MIAA had already expired and that a new
concessionaire had been chosen. Admittedly there was no XPN: You can enjoin criminal prosecution under the following
existing contractual relationship between MIAA and G & S since grounds.
the former was under no legal obligation to renew the
concession contract. Consequently, G & S had no right which Brocka v. Enrile
needed protection by a writ of preliminary injunction. G.R. Nos. 69863-65, December 10, 1990, 192 SCRA 182
Facts: Petitioners were arrested following the forcible and violent

h. When The Act Sought to be Enjoined Has Already Been dispersal of a demonstration held in sympathy with the jeepney
Committed strike called by the Alliance of Concerned Transport Organization
(ACTO). Thereafter, they were charged with Illegal Assembly.
Ramos, Sr. v. Court of Appeals
G.R. No. 80908-09, May 24,1989, 173 SCRA 550 Except for Brocka, et al. who were charged as leaders of the
offense of Illegal Assembly and for whom no bail was
The instant Petition should also be dismissed on another ground. recommended, the other petitioners were released on bail.
The act sought to be enjoined in this case, i.e., the sale of Brocka, et al.'s provisional release was ordered only upon an
COMBANK to the FNBB and the group of Filipino investors, is urgent petition for bail.
already a consummated act. The established principle is that
when the events sought to be prevented by injunction or
prohibition have already happened, nothing more could be
However, despite service of the order of release, Brocka, et al.

remained in detention, respondents having invoked a Preventive Petitioners filed a petition before this Court to enjoin the Fiscal
Detention Action (PDA) allegedly issued. Neither the original, from proceeding with the preliminary investigation on the
duplicate original nor certified true copy of the PDA was ever ground that the allegations in the complaint for damages are
shown to them. "privileged," which cannot, therefore, be libelous.
ISSUE: Whether it was legal to enjoin the criminal prosecution of On August II, 1975, the court resolved to issue a temporary
a case, since the two other issues raised by Brocka, et al. are restraining order and to require respondent to answer.
matters of defense against the sedition charge? Yes!
Issue: Whether the Provincial Fiscal may be perpetually enjoined
HELD: We rule in favor of Brocka, et al. and enjoin their criminal from conducting a preliminary investigation? Yes!
prosecution for the second offense of inciting to sedition.
Held: Generally, Injunction or prohibition does not lie to restrain
Indeed, the general rule is that criminal prosecution may not be a criminal prosecution. But as is usually the case, certain
restrained or stayed by Injunction, preliminary or final. exceptions to this rule obtain.
There are however so exceptions, among which are: Extreme cases may, and actually do, exist where relief in equity
may be availed of to stop a purported enforcement of a criminal
1. To afford adequate protection to the constitutional rights law where it is necessary:
of the accused;
2. When necessary for the orderly administration of justice or 1. for the orderly administration of justice;
to avoid oppression or multiplicity of actions; 2. to prevent the use of the strong arm of the law in an
3. When there is a pre-judicial question which is sub judice; oppressive and vindictive manner;
4. When the acts of the officer are without or in excess of 3. to avoid multiplicity of actions;
authority; 4. to afford adequate protection of constitutional rights; and
5. Where the prosecution is under an invalid law, ordinance 5. in proper cases, because the statutes relied upon is
or regulation unconstitutional, or was 'held invalid.'"
6. When double jeopardy is clearly apparent;
7. Where the court has no jurisdiction over the offense; We find that the speedy, orderly and efficient administration of
8. Where it is a case of persecution rather than prosecution; justice would be subserved by enjoining Fiscal from further
9. Where the charges are manifestly false and motivated by proceeding with the questioned preliminary investigation.
the lust for vengeance; and Indeed, it would be a futile endeavor to conduct an investigation
10. When there is clearly no prima facie case against the where no crime has been committed.
accused and a motion to quash on that ground has been
denied. 6. Where the constitutionality of the Chinese Bookkeeping
law was questioned;
Preliminary Injunction has been issued by the Supreme Court to
prevent the threatened unlawful arrest of petitioners. Yu Cong Eng v. Trinidad
Constitutional rights must be upheld at all costs, for this gesture 47 Phil 385
is the true sign of democracy. These may not be set aside to
satisfy perceived illusory visions of national grandeur. Facts: Yu Cong Eng, was charged for a violation of Act 2972,
which provides that (Section 1) it shall be unlawful for any person,
You can enjoin criminal prosecution under the following grounds: company, or partnership or corporation engaged in commerce,
1. For the orderly administration of justice; industry or any other activity for the purpose of profit in the
2. To prevent the use of the strong arm of the law in an Philippine Islands, in accordance with existing law, to keep its
oppressive and vindictive manner; account books in any language other than English, Spanish or
3. To avoid multiplicity of actions; any local dialect. He was arrested, his books were seized, and the
4. To afford adequate protection of constitutional rights; trial was about to proceed, when he and the other petitioner, Co
Liam, on their own behalf, and on behalf of all the other Chinese
5. Where the statute relied upon is unconstitutional or was merchants in the Philippines, filed the petition against the fiscal,
held invalid; or prosecuting attorney of Manila, and the collector of internal
revenue engaged in the prosecution, and against the judge
Justiniani v. Castillo presiding.
G.R. No. 41114, June 21, 1988, 162 SCRA 378
Issue: Whether the injunction was proper? Yes!
Facts: A complaint for damages for physical injuries was filed by
the petitioners against Brig Gen. Montoya before the CFI. Brig. Held: Determination of the constitutionality of a law in original
Gen. Montoya in a criminal complaint for Libel filed alleged that proceedings in the appellate court.
the aforesaid complaint for damages caused the publication of
derogatory, scurrilous and highly libelous statements which Equity has power, to be exercised in proper cases, to restrain
tended to cause dishonor, discredit, public contempt and ridicule criminal prosecutions under unconstitutional statutes, and to
to his personal worth, integrity, honor and position. grant preliminary injunctions where the constitutionality of a
penal law is doubtful and fairly debatable, and permanent Preliminary Mandatory Injunction
injunctions where the laws are held invalid. The remedy by
injunction to restrain the enforcement of unconstitutional There are three (3) requisites, to wit:
statutes or abuse of authority under a valid statute, is limited to
cases where property rights are threatened with irreparable injury 1. Invasion of the right is material and substantial;
or where persons would be subjected to a multiplicity of suits. 2. Right of the complainant is clear and unmistakable;
3. Urgent and permanent necessity for the writ to prevent
7. Where the hearing of the libel case was enjoined by serious damage.
permanent injunction after the Supreme Court, in a
separate case, found the communication alleged to be Pelejo v. Court of Appeals
libelous as privileged and not libelous; G.R. No. 60800, October 18, 1982, 117 SCRA 666
Ang v. Castro A mandatory injunction is granted only on a showing that (a) the
G.R. No. 66371, May 15, 1985, 136 SCRA 453 invasion of the right is material and substantial; (b) the right of
complainant is clear and unmistakable; and (c) there is an urgent
Facts: Respondent judge instituted before the Office of the City and permanent necessity for the writ to prevent serious damages.
Fiscal a criminal complaint for libel against herein petitioner for Petitioners' right over the property is not clear. As stated above,
using malicious, insolent and contemptuous language against the title to the property in question is already in the names of
him in his letter-complaint filed before this Court. private respondents who, therefore, have better right to the
possession thereof.
Issue: Whether the action for prohibition was meritorious? Yes!
Both injunctions have very strict requirements.
Held: The basis of the libel case filed against petitioner before
the RTC was a communication addressed to the Chief Justice of Where Preliminary Mandatory Injunction Was Not Allowed
the Supreme Court which was coursed through the Office of the
Presidential Assistant on Legal Affairs, complaining against the 1. To compel one of the spouses to cohabit with, and render
judge's ignorance of the law, gross inexcusable negligence, conjugal rights to the other;
incompetence, disregard for the Supreme Court administrative
order, grave misconduct, rendering an unjust decision and Obviously you cannot compel a person to live or cohabit with his or
dereliction of duty. her spouse.
"A communication made in good faith upon any subject matter

Arroyo v. Vasquez De-Arroyo
in which the party making the communication has an interest or
G.R. No. 17014, August 11, 1921
concerning which he has a duty is privileged if made to a person
having a corresponding interest or duty, although it contains
FACTS: Mariano and Dolores were married in 1910, and since
incriminatory or derogatory matter which without the privilege
that date, with a few short intervals of separation, they have lived
would be libelous and actionable; that parties, counsel and
together as man and wife in the city of Iloilo until July 4, 1920,
witnesses are exempted from liability in libel or slander for words
when the wife went away from their common home with the
otherwise defamatory published in the course of judicial
intention of living thenceforth separate from her husband. After
proceedings, provided the statements are pertinent or relevant
efforts had been made by the husband without avail to induce
to the case."
her to resume marital relations, this action was initiated by him
to compel her to return to the matrimonial home and live with
8. Where a traffic ordinance was found to be invalid. him as a dutiful wife.
Primicias v. Municipality of Urdaneta, Pangasinan Issue: Whether the courts can compel the husband and the wife
G.R. No. 26702, October 18, 1979, 93 SCRA 462 to cohabit? No!
On the issue of whether a writ of injunction can restrain the Held: It is not within the province of the courts of this country to
proceedings in Criminal Case, the general rule is that "ordinarily, attempt to compel one of the spouses to cohabit with, and
criminal prosecution may not be blocked by court prohibition or render conjugal rights to, the other. Of course where the property
injunction." Exceptions however are allowed in the certain rights of one of the pair are involved, an action for restitution of
instances. such rights can be maintained. But we are disinclined to sanction
the doctrine that an order, enforceable by process of contempt,
The local statute or ordinance at bar being invalid, the exception may be entered to compel the restitution of the purely personal
obtains in this case. Hence, the lower court did not err in issuing rights of consortium. At best such an order can be effective for
the writ of injunction against defendants. Moreover, considering no other purpose than to compel the spouses to live under the
that "our law on municipal corporations is in principle patterned same roof; and the experience of these countries where the court
after that of the United States, " it would not be amiss for Us to of justice have assumed to compel the cohabitation of married
adopt in this instance the ruling that to enjoin the enforcement people shows that the policy of the practice is extremely
of a void ordinance, "injunction has frequently been sustained in questionable.
order to prevent a multiplicity of prosecutions under it."

2. To cancel an attachment; circumstances of the purchase and the intention of the parties,
the property including the disputed area was sold to it.
Levy Hermanos Inc. v. Lacson,et al.
G.R. 47285, December 16, 1940 Sun Valley, on the other hand has TCT embracing the aforesaid
property in its name, having been validly acquired also from APT
Whether the Judge could legally issue the preliminary mandatory by virtue of a Deed of Sale.
injunction in order to lift and dissolve the embargo that the
Provincial Sheriff had worked on the 16 parcels of land. There is sufficient and convincing proof that Sun Valley has a
clear legal right to possession in its favor to warrant the issuance
There is no doubt that the appealed MRL, who claimed to be the of a writ of preliminary/mandatory injunction. Sun Valley's TCT
true owner of the foreclosed land and had presented his third gives it that right to possession. On the other hand, Toyota has
party claim, had the right to exercise independent civil action not established its right over the said property except for the
aimed at claiming the foreclosed furniture, because such right assertion that there was a mistake in an instrument which
expressly conferred on him by law. purportedly should have included the questioned strip of land.
But it is clear that the Judge appealed, in the exercise of his As between the parties, Sun Valley has a better right. Under the
discretion, he should not have issued the preliminary injunction circumstances, therefore, and considering that the clear legal
that produced the effect of canceling the embargo that the right of Toyota to possession of the disputed area has not been
Sheriff had locked on the property, pending civil decision, established sufficient to grant the prayed for relief, a writ of
because the preliminary remedy that was granted thus had the preliminary mandatory injunction may be issued pendente lite.
effect to prejudge in depth the matter and to make illusory
the appeal that the appellant could file against the decision This is more particularly applicable where the legal title is in dispute
that is issued in the matter, in the event that it were adverse.in and the party having possession asserts ownership in himself;
the event that this was adverse.
Gordillo v. Del Rosario
3. To transfer the property in litigation from the possession 39 Phil 829 (1919)
of one party to another where the legal title is in dispute
and the party having possession asserts ownership Facts: Gordillo and Martinez, as petitioners, instituted the
thereto. present original proceeding in the Supreme Court wherein they
apply for the writ of certiorari and ask the court to supersede,
Toyota Motors Philippines Corporation v. Court of Appeals quash, and dissolve the aforesaid injunction. The grounds upon
G.R. No. 102881, December 7, 1992, 216 SCRA 236 which relief is sought are that in granting said injunction the CFI
acted irregularly and in excess of its jurisdiction and that the
Facts: Boundary dispute between Toyota and Sun Valley. issuance of said writ constituted an, abuse of discretion.
Held: In actions involving realty, preliminary injunction will lie Issue: Whether the action of granting the injunction was irregular
only after the plaintiff has fully established his title or right and in excess of its jurisdiction? No!
thereto by a proper action for the purpose. To authorize a
temporary injunction, the complainant must make out at least a Held: It is undeniable that the injunctive power is one capable of
prima facie showing of a right to the final relief. Preliminary abuse; and this Court has not infrequently been called upon to
injunction will not issue to protect a right not in esse. criticize the practice, formerly quite general in our CFI, of granting
preliminary injunctions for the purpose of taking property, which
Two requisites are necessary if a preliminary injunction is to issue, is the subject of litigation and as to which the legal title is in
namely, dispute, out of the possession of one person and putting it into
4. existence of the right to be protected, and the hands of another before the right is determined.
5. facts against which the injunction is to be directed, are
violative of said right. We are also of the opinion that the action of a CFI in exercising
this power may, under certain conditions, amount to an abuse of
In particular, for a writ of preliminary injunction to issue, the discretion and constitute an irregularity so far in excess of the
existence of the right and the violation must appear in the proper power of the court as to give rise to a right in the injured
allegations of the complaint and an injunction is proper also party to have relief by the writ of certiorari. However, in the case
when the plaintiff appears to be entitled to the relief demanded before us we see none of the elements requisite to the granting
in his complaint. Furthermore, the complaint for injunctive relief of the relief here sought. On the contrary, the action of Judge Del
must be construed strictly against the pleader Rosario in granting the injunction in question was entirely within
his power and constituted a most salutary exercise thereof.
In the instant case the existence of a "clear positive right"
especially calling for judicial protection has been shown by Sun It is admitted that when the injunction was applied for the period
Valley. prescribed for the duration of the partnership had passed. The
parties in interest were, therefore, confronted with the necessity
Toyota's claim over the disputed property is anchored on the fact of liquidating the business. Whether this process should be
of its purchase of the property from APT, that from the accomplished in conformity with the provisions of paragraph 13

of the articles of partnership or in accordance with law regardless became the basis of judge in issuing the preliminary mandatory
of those provisions, it was necessary that the business should be injunction and also in denying the motion to lift the said
confided to the care of a liquidator. As the respondents in the injunction.
present petition plaintiffs in the action below would not consent
for Gordillo and Martinez to continue in charge as liquidators, it When petitioners filed their pleadings, subsequent to the
was necessary to proceed to the election of a liquidator or issuance of the writ of injunction, alleging therein that they are
conformity with article 229 of the Code of Commerce. There is bona fide tenants of the land in question with supporting
absolutely nothing in the articles of partnership which excludes documents attached to the answer with motion to lift the
the operation of said article, and in fact this legal provision, mandatory injunction, it was incumbent upon the judge to
allowing the election of a liquidator, must be taken to be dissolve the writ; after all, the issuance or recall of a preliminary
supplemental to the articles of partnership, s( far as concerns the writ of injunction is an interlocutory matter that remains at all
situation which presented itself when the term of the partnership times within the control of the court.
in question expired.
It becomes more imperative for the judge to recall the writ when
6. When the effect would be to create a new relation his attention was called to the fact that the bond posted by the
between the parties; First Integrated Bonding & Insurance Company, Inc. has not been
authorized by Us to issue judicial bonds.
Alvaro, et al. v. Zapata, et al
G.R. No. 50548, November 25, 1982,118 SCRA 722 Why is a Preliminary Mandatory Injunction is not allowed when
the effect would be to create a new relation between the
Facts: Complaint for forcible entry and damages, with prayer for parties?
a restraining order by private respondents against petitioners This is because the purpose of creating the injunction is to maintain
alleging that Arrastia is a co-owner and administration for himself the LAPUS or the last actual peaceful and uncontested status of the
and his co-heirs of parcels of sugarland; that Arrastia executed a parties which precede the controversy.
contract of lease over said parcels of land in favor of Baluyut, but
when the latter began, agricultural operations and activities on When A Preliminary Mandatory Injunction Is Allowed
the said hacienda, petitioners, by means of force, violence,
intimidation, threats and stealth, illegally occupied the hacienda, 1. In forcible entry cases where the Court may issue a
thereby depriving private respondents of their prior, peaceful, preliminary mandatory injunction, upon motion within 5
actual, open and continuous possession of the said hacienda; and days from the filing of the complaint, to restore the
that said petitioners are not tenants or lessees but mere squatters plaintiff in possession and those involving leases in which
are, intruders. Attached to the complaint is a motion for a writ of the court may, on appeal grant similar mandatory
preliminary mandatory injunction. injunctive relief. – See: Rule 70
After conducting an ex-parte hearing on the application for a writ NOTE: Under Rule 70, unlawful detainer and forcible entry cases. In
of preliminary mandatory injunction, judgeissued an order forcible entry, the court may issue a PMI provided that there is a
granting the writ in favor of private respondents upon the latter's motion within 5 days from the filing of the complaint.
filing of an injunction bond.
What is your main action where a PMI is allowed?
Issue: Whether the preliminary mandatory injunction was issued It is allowed if your main action is forcible entry or unlawful detainer
with undue haste and without regard to petitioners' right to with a prayer for the issuance of PMI. The exception applies only to
hearing. Yes! ejectment cases exclusively cognizable by the municipal trial court.
Held: It was issued in grave abuse of discretion and showed Ramos v. Court of Appeals
partiality on the part of said judge in favor of private G.R. No. 81354, July 26, 1988, 163 SCRA 583
respondents.
The dissolution of the writ of injunction, it must be noted, was
It has always been said that it is improper to issue a writ of fundamentally upon the well-settled principle that injunction
preliminary mandatory injunction prior to the final hearing, does not lie to take property away from one and give it to
except in cases of extreme urgency; where the right is very clear; another. The function of injunction, generally is to preserve the
where considerations of relative inconvenience bear strongly in status quo ante.
complainant's favor; where there is a willful and unlawful invasion
of plaintiff's right against his protest and demonstrance, the The exception is provided in Section 3 of Rule 70, of the Rules of
injury being a continuing one; and where 'he effect of the Court, governing forcible entries, in which the court may issue
mandatory injunction is rather to re-establish and maintain a pre- preliminary mandatory injunction, and by Section 9 thereof,
existing continuing relation between the parties, recently and involving leases, in which the court may, on appeal, grant similar
arbitrarily interrupted by the defendant, than to establish a new mandatory injunctive relief. The exception, it should be noted,
relation. applies to ejectment cases alone, cases exclusively cognizable by
the Municipal Court. It does not apply to the proceeding below,
The right of private respondents to possession is not clear. To and accion publiciana, jurisdiction over which is vested in the
establish that they have prior possession over the disputed land, Regional Trial Court.
private respondents submitted documentary exhibits, which
The issuance of a writ of preliminary injunction in the present

2. Property covered by Torrens title when there is a clear case, as in any other case, is addressed to the sound discretion of
finding of ownership and possession of the land, unless the court, conditioned on the existence of a clear and positive
the subject property is covered by a Torrens Title pointing right of the movant which should be protected. It is an
to one of the parties as the undisputed owner. extraordinary peremptory remedy available only on the grounds
expressly provided by law, specifically Section 3 of Rule 58.
Government Service Insurance System v. Florendo
In the issuance thereof, the courts are given sufficient discretion
Facts: A writ of preliminary, preventive and mandatory to determine the necessity for the grant of the relief prayed for
injunctions was issued. GSIS immediately filed its urgent Motion as it affects the respective rights of the parties, with the caveat
for Reconsideration. On the same day, Ang filed an Urgent Ex- that extreme caution be observed in the exercise of such
Parte Motion requesting that the sheriff be duly authorized to discretion.
use reasonable force within his discretion in the implementation
of the writ of injunction. It is also a settled rule that the issuance of the writ of preliminary
injunction as an ancillary or preventive remedy to secure the
Notwithstanding the fact that the Urgent Motion for rights of a party in a pending case is entirely within the discretion
Reconsideration filed by GSIS was still unresolved, the judge of the court taking cognizance of the case, the only limitation
issued an order granting Ang's motion. being that this discretion should be exercised based upon the
grounds and in the manner provided by law. The exercise of
On July 17, 1978, the Sheriff broke the door leading to the sound judicial discretion by the lower court in injunctive matters
centralized air-conditioning unit, cut-off its electrical should not be interfered with except in cases of manifest abuse.
connections, and subsequently prevented its use by GSIS.
Cagayan De Oro City Landless Residents
Issue: Whether the judge acted with grave abuse of discretion Association Inc. v. Court of Appeals
amounting to lack of jurisdiction when he issued the challenged G.R. No. 106043, March 4, 1996, 254 SCRA 229
orders directing the issuance of a temporary restraining order
authorizing the use of reasonable force to implement the writ of Issue: Whether National Housing Authority (NHA) is entitled to
injunction.? Yes! the injunction prayed for? Yes!
Held: A temporary restraining order is generally granted without Held: As an extraordinary remedy, injunction is calculated to
notice to the opposite party, and is intended only as a restraint preserve or maintain the status quo of things and is generally
on him until the propriety of granting a temporary injunction can availed of to prevent actual or threatened acts, until the merits of
be determined, and it goes no further than to preserve the status the case can be heard.
until that determination.
As such, injunction is accepted as the "strong arm of equity or a
Its purpose is merely to suspend proceedings until there may be transcendent remedy" to be used cautiously, as it affects the
an opportunity to inquire whether any injunction should be respective rights of the parties, and only upon full conviction on
granted, and it is not intended to operate as an injunction the part of the court of its extreme necessity. Its issuance rests
pendente lite, and should not in effect determine the issues entirely within the discretion of the court taking cognizance of
involved before the parties can have their day in court, or give an the case and is generally not interfered with except in cases of
advantage to either party by proceedings in the acquisition or manifest abuse. Moreover, it may only be resorted to by a litigant
alteration of the property the right to which is disputed while the for the preservation or protection of his rights or interests and
hands of the other party are tied. for no other purpose during the pendency of the principal action.
GSIS submits next that the order which directed the issuance of Before an injunction can be issued, it is essential that the
the writ of preliminary, preventive and mandatory injunction following requisites be present: 1) there must be a right in esse
directly asserted that the questioned properties belonged to or the existence of a right to be protected; and 2) the act against
Ang. It contends further that the order which directed the use of which the injunction is to be directed is a violation of such right.
force to implement the writ of injunction was issued Hence, it should only be granted if the party asking for it is clearly
notwithstanding the fact that the order was then still the subject entitled thereto.
of a pending motion for reconsideration of which judge was
officially cognizant. In the case at bench, the Court of Appeals was justified in ruling
that NHA was entitled to the writ of injunction.
A writ of preliminary injunction, as an ancillary or preventive
remedy, may only be resorted to by a litigant to protect or While the case for forcible entry was pending on appeal before
preserve his rights or interests and for no other purpose during the RTC, Special Patent No. 3551 was issued by then President
the pendency of the principal action. Before a writ of preliminary Aquino which covered the lot subject of the dispute and by virtue
injunction may be issued, there must be a clear showing by the thereof, an OCT in the name of NHA was issued.
complaint that there exists a right to be protected and that the
acts against which the writ is to be directed are violative of the So, when petitioner moved for the issuance of a writ of execution
said right. before the MTCC, a certificate of title had already been issued to

NHA. In view of this intervening development, NHA filed a Another main action?
complaint for quieting of title. S: Recovery of possession of land coupled with a prayer for the
issuance of a writ of preliminary injunction.
Thus, it was only proper for the CA peals to direct the RTC where
Civil Case was pending, to grant the writ of preliminary injunction Would you agree that preliminary injunction is allowed if you
to restrain the enforcement of the decision of the MTCC as there are seeking for the recovery of possession of your land?
was a material change in the status of the parties with regard “Main action tayo para hindi kayo mawala. Diba like in cases of
to the said land. Clearly, the government, through the NHA will preliminary attachment naka enumerate. So for example, if your
be prejudiced by the impending enforcement of the decision main action is for collection of sum of money, madali mo ma-
which directs the said agency to restore the members of identify. Ano ang iyong posibleng provisional remedy? You can pray
petitioner to their respective possession. for preliminary attachment. Madali mo na maalala.”
What are other principal actions? Is it limited to what is allowed

under Rule 70?
Grounds for Issuance of Preliminary Injunction You research what are the other principal actions wherein writ of
preliminary injunction can be prayed for or applied.
Section 3. Grounds for issuance of preliminary injunction. —
A preliminary injunction may be granted when it is established: Section 4. Verified application and bond for preliminary
(a) That the applicant is entitled to the relief demanded, and injunction or temporary restraining order. — A preliminary
the whole or part of such relief consists in restraining the injunction or temporary restraining order may be granted only
commission or continuance of the act or acts complained when:
of, or in requiring the performance of an act or acts either
for a limited period or perpetually; (a) The application in the action or proceeding is verified, and
(b) That the commission, continuance or non-performance shows facts entitling the applicant to the relief demanded;
of the act or acts complained of during the litigation and
would probably work injustice to the applicant; or (b) Unless exempted by the court the applicant files with the
(c) That a party, court, agency or a person is doing, court where the action or proceeding is pending, a bond
threatening, or is attempting to do, or is procuring or executed to the party or person enjoined, in an amount to
suffering to be done some act or acts probably in be fixed by the court, to the effect that the applicant will pay
violation of the rights of the applicant respecting the to such party or person all damages which he may sustain
subject of the action or proceeding, and tending to by reason of the injunction or temporary restraining order if
render the judgment ineffectual. the court should finally decide that the applicant was not
entitled thereto. Upon approval of the requisite bond, a writ
Self-explanatory provision. As to who may grant preliminary of preliminary injunction shall be issued. (4a)
injunction, that is found under Section 2.
(c) When an application for a writ of preliminary injunction or a
temporary restraining order is included in a complaint or any
Who May Grant a Preliminary Injunction? initiatory pleading, the case, if filed in a multiple-sala court,
shall be raffled only after notice to and in the presence of
Section 2. Who may grant preliminary injunction. — A the adverse party or the person to be enjoined. In any event,
preliminary injunction may be granted by the court where the such notice shall be preceded, or contemporaneously
action or proceeding is pending. If the action or proceeding is accompanied, by service of summons, together with a copy
pending in the Court of Appeals or in the Supreme Court, it may of the complaint or initiatory pleading and the applicant's
be issued by said court or any member thereof. affidavit and bond, upon the adverse party in the Philippines.
If your provisional remedy is for the issuance of preliminary However, where the summons could not be served
injunction, what could possibly be your main action? personally or by substituted service despite diligent efforts,
Because again, we need a principal action. Remember, a provisional or the adverse party is a resident of the Philippines
remedy is only ancillary. temporarily absent therefrom or is a nonresident thereof, the
requirement of prior or contemporaneous service of
S: Main case could be when there is levy of property and then the summons shall not apply.
applicant files for preliminary injunction to restrain the further levy
of his properties. (d) The application for a temporary restraining order shall
thereafter be acted upon only after all parties are heard in a
S: A main action could be forcible entry. So while the case is being summary hearing which shall be conducted within twenty-
judged on its merit, a party may file for preliminary injunction four (24) hours after the sheriff's return of service and/or the
specifically preliminary mandatory injunction to stop the actions of records are received by the branch selected by raffle and to
a defendant. which the records shall be transmitted immediately.
It is allowed under Rule 70. So if your main action is for forcible entry Basic Requirement: AFFIDAVIT + BOND
or unlawful detainer cases then you can pray for the issuance of a
writ of preliminary action.
Under Section 4, the application for injunction must be verified (like The requirement of the law is
an affidavit, it is under oath) and must show facts entitling the stricter under Rule 58.
applicant to the relief demanded.
Let us review first Rule 57. We said that in preliminary attachment,
It depends on what the party is asking for. It could be preliminary there are 3 stages for its issuance based on the case of Cuartero v.
prohibitory injunction – he must state the four essential requisites. CA.
Or if he is asking for a preliminary mandatory injunction- he must
state the three requirements. With regard the first 2 stages, we said that it is okay that the court
has not acquired jurisdiction over the person of the defendant. That
Take note, the 2nd requirement is the bond requirement. is very clear. However, upon reaching the 3rd stage which is when
the writ of attachment is served on the defendant, the law says that
GR: Applicant should execute a bond to the party or person sought jurisdiction over the person of the defendant must be acquired. That
to be enjoined in an amount which is fixed by the court. is the principle of prior or contemporaneous jurisdiction.
What is the purpose of that bond requirement?
The purpose of the bond is to pay such party who is enjoined all Why is it applicable in the principle in preliminary attachment?
damages which he may sustain due to the injunction that is being It is the same. Jurisdiction over the person of the defendant must be
issued. acquired.
So the purpose, whether preliminary attachment or preliminary Imagine, if you are a defendant in a case wherein the plaintiff wants
injunction, is for damages that will be paid to the party whose you to be enjoined or to stop from doing that act against me. Then
property is attached or who is being enjoined. you are completely unaware of an injunction suit. There is no due
process. Likewise, you are not also informed of your right. That is
XPN: Unless he is exempted by the court. why the law is very clear that if you are praying for a writ of
preliminary injunction then the party must be notified.
Principle of Prior or Contemporaneous Jurisdiction? This can be
found in letter (c) of Rule 58. This rule on prior or contemporaneous jurisdiction, this is not on
your end. This is the duty of the court as well as the sheriff of the
General Rule: When an application for a writ of preliminary court to serve summons upon the person of the defendant.
injunction or a temporary restraining order is included in a
complaint or any initiatory pleading, the case, if filed in a multiple- July 28, 2020 – Cassy Verana & Val Joseph Acevedo
sala court, shall be raffled only after notice to and in the presence of Two Kinds of Injunction
the adverse party or the person to be enjoined.
1) Preliminary Prohibitory Injunction
In any event, such notice shall be preceded, or contemporaneously This kind of injunction commands a party to refrain from doing
accompanied, by service of summons, together with a copy of the a particular act.
complaint or initiatory pleading and the applicant's affidavit and
bond, upon the adverse party in the Philippines. Requisites for the Issuance
a. The applicant must have a clear and unmistakable right, that
Exception: If the summons could not be served personally or by right should be existing or in existence; (right in esse)
substituted service despite diligent efforts, or the adverse party is a
resident of the Philippines temporarily absent therefrom or is a Is injunction a proper remedy to protect contingent
nonresident thereof, the requirement of prior or contemporaneous rights? No. In Sareno vs Dictado – Injunction is not a
service of summons shall not apply. proper remedy to protect contingent or future rights, nor
is it a remedy to enforce an abstract right.
Prior or Contemporaneous Jurisdiction
Rule 57 V. Rule 58 b. There is a material and substantial invasion of such right;
Rule 57 Rule 58
The principle applies only in In applications for preliminary c. There is an urgent need for the writ to prevent irreparable
the implementation of the writ. injunction or TRO, this injury to the applicant; and
principle applies before the
Note: Read the case of raffle of the case and the d. No other ordinary, speedy, and adequate remedy exists to
Cuartero v. CA which was issuance of the writ. prevent the infliction of irreparable injury.
already discussed. This case is
very clear. Purpose of Preliminary Prohibitory Injunction
Not to correct a wrong of the past but to prevent further injury.
Cuartero v. CA:
Prior or contemporaneous 2) Preliminary Mandatory Injunction
jurisdiction will apply only in Commands the performance of some positive act. This is the
the implementation of the writ rare type of injunction as compared to a preliminary prohibitory
and the purpose is due process injunction.
requirement.

Requisites for the Issuance an injunction against the latter from selling said product.
a. Invasion of the right is material and substantial;
b. Right of complainant is clear and unmistakable; Both the RTC and CA denied the issuance of the writ of
c. Urgent and permanent necessity for the writ to prevent preliminary injunction. CA ruled that Yu was not able to
serious damage. demonstrate the unequivocal right which he sought to protect.
Purpose of Preliminary Mandatory Injunction Issue: Whether a writ of preliminary injunction may be issued?
To reestablish and maintain a pre-existing, continuing relation Yes!
between the parties that was recently and arbitrarily interrupted by
the defendant rather to establish a new relation. Ruling: Injunction is an appropriate remedy to prevent the
wrongful interference with contracts by strangers where other
Two Main Requirements for The Issuance of Injunction remedies are not sufficient and the resulting injury is irreparable.
Note: We stated earlier that the premise is that, when we say The right to an exclusive distributorship and to raise profits
preliminary prohibitory, it is different from preliminary mandatory. resulting from such performance are proprietary rights which
But for brevity, what are the two requirements for its issuance? may be protected.
1. That the plaintiff must clearly show the existence of a right Meralco v. CA
that is sought to be protected; and GR No. L-7688 March 29, 2012
2. The injunction is directed against the violation of such right.
Facts: Where the electric power of the defendant was
Sareno v. Dictado disconnected by Meralco, he filed a case questioning the act of
160 SCRA 759 Meralco, and he has evidence to show that he has paying his bills.
Facts: Sareno was elected as mayor, he was proclaimed as the
winner. Five days later, the losing candidate filed an election If the defendant will wait for the time of judgment to be
protest before the RTC. rendered, that would take years before the rights will be litigated
before the courts. While the case is going on, he can file for a
Judge Dictado issued a writ of preliminary injunction to stop mandatory injunction to reconnect.
Sareno from assuming office pending resolution of the case
(election protest). Issue: Was it proper for the court to issue the mandatory
Issue: Whether or not the issuance of the writ of preliminary injunction? Yes!
injunction was proper. No!
Ruling: The Supreme Court said that it was proper so that he can
Ruling: Judge Dictado committed grave abuse of discretion and recollect the lost lines. While the case is going on, he can file for
acted in excess of jurisdiction. The reason is that the pendency of a mandatory injunction to reconnect.
the election protest is not a sufficient basis to enjoin Sareno from
assuming office as required by law.
The efficiency of public administration should not be impaired

Preliminary Injunction Not Granted Without Notice
until and unless the election protest is decided against Sareno.
During the pendency of the case, he has the lawful right to Section 5. Preliminary injunction not granted without
assume and perform the duties of a mayor. notice; exception. — No preliminary injunction shall be granted
without hearing and prior notice to the party or person sought
The claim of the losing candidate to the contested office is to be enjoined. If it shall appear from facts shown by affidavits or
a contingent right which could only ripen into an actual right by the verified application that great or irreparable injury would
when judgment is rendered to this effect. His alleged right has result to the applicant before the matter can be heard on notice,
not been clearly established against Sareno whose right is the court to which the application for preliminary injunction was
actually existing. made, may issue a temporary restraining order to be effective
only for a period of twenty (20) days from service on the party or
An injunction is not proper to protect contingent or future person sought to be enjoined, except as herein provided. Within
rights nor is it a remedy to enforce an abstract right. the said twenty-day period, the court must order said party or
person to show cause, at a specified time and place, why the
injunction should not be granted, determine within the same
Yu v. Court of Appeals
period whether or not the preliminary injunction shall be granted,
217 SCRA 328
and accordingly issue the corresponding order. (Bar Matter No.
803, 17 February 1998)
Facts: Philip Yu is the exclusive distributor of the House of
Mayfair wallcovering products in the Philippines. He discovered However, and subject to the provisions of the preceding sections,
that another businessman is selling the same product within the if the matter is of extreme urgency and the applicant will suffer
country. It is the position of Yu that the other businessman was grave injustice and irreparable injury, the executive judge of a
engaged in a sinister form of unfair competition. multiple-sala court or the presiding judge of a single sala court
may issue ex parte a temporary restraining order effective for
Thus, Yu filed a case against the other businessman and sought only seventy-two (72) hours from issuance but he shall
immediately comply with the provisions of the next preceding it will thereby entail a useless exercise and unnecessary waste of
section as to service of summons and the documents to be judicial time.
served therewith. Thereafter, within the aforesaid seventy-two
(72) hours, the judge before whom the case is pending shall When May Hearing Be Required.
conduct a summary hearing to determine whether the temporary It would be different, of course, it there is a prima facie showing
restraining order shall be extended until the application for on the face of the motion and/or pleadings that the grant of
preliminary injunction can be heard. In no case shall the total preliminary injunction may be proper, in which case notice to
period of effectivity of the temporary restraining order exceed the opposing party would be necessary since the grant of such
twenty (20) days, including the original seventy-two hours writ on an ex parte proceeding is now proscribed.
provided herein.
A hearing should be conducted since, under such
In the event that the application for preliminary injunction is
circumstances, only in case of extreme urgency will the writ
denied or not resolved within the said period, the temporary
issue prior to a final hearing. Such requirement for prior notice
restraining order is deemed, automatically vacated. The
and hearing underscores the necessity that a writ of preliminary
effectivity of a temporary restraining order is not extendible
injunction is to be dispensed with circumspection both sides
without need of any judicial declaration to that effect and no
should be heard whenever possible. It does not follow, however,
court shall have authority to extend or renew the same on the
that such a hearing is indispensable where right at the outset the
same ground for which it was issued.
court is reasonably convinced that the writ will not lie. What was
then discouraged, and is now specifically prohibited, is
However, if issued by the Court of Appeals or a member thereof, the issuance of the writ without notice and hearing.
the temporary restraining order shall be effective for sixty (60)
days from service on the party or person sought to be enjoined. In the case: The issuance of a writ of preliminary injunction in the
A restraining, order issued by the Supreme Court or a member present case, as in any other case, is addressed to the sound
thereof shall be effective until further orders. (5a) discretion of the court, conditioned on the existence of a clear
and positive right of the movant which should be protected. It is
Rule on the Prior Notice and Hearing an extraordinary peremptory remedy available only on the
General Rule: A writ of preliminary injunction cannot be issued grounds expressly provided by law, specifically Section 3 of
without prior notice and hearing to the party or person sought to Rule 58 of the Rules of Court.
be enjoined.
The circumstances required for the writ to issue do not
Valley Trading v. CFI obtain in the case at bar. The damage that may be caused to
171 SCRA 501 Valley will not, of course, be irreparable; where so indicated by
subsequent events favorable to it, whatever it shall have paid is
Facts: Valley Trading Inc. filed a complaint seeking the supposed easily refundable. Besides, the damage to its property rights must
nullity of a provision in the Revenue Code of Cauayan, Isabela, perforce take a back seat to the paramount need of the State for
which imposed a graduated tax on retailers, independent funds to sustain governmental functions.
wholesalers and distributors; and for the refund of a sum which
it had paid pursuant to said ordinance. Valley likewise prayed for Compared to the damage to the State which may be caused by
the issuance of a writ of preliminary prohibitory injunction to reduced financial resources, the damage to petitioner is
enjoin the collection of said tax. negligible. The policy of the law is to discountenance any delay
in the collection of taxes because of the oft-repeated but
unassailable consideration that taxes are the lifeblood of the
RTC denied the prayer for a writ of preliminary injunction on the
Government and their prompt and certain availability is an
ground that "the collection of taxes cannot be enjoined". Valley
imperious need.
contends that a hearing is mandatory before action may be taken
on the motion for the issuance of a writ of preliminary injunction.
It argued that a hearing on the merits is necessary before a Prior Notice and Hearing
motion for a writ of preliminary injunction may be denied. A hearing that should be conducted by the court where the
application for writ of preliminary injunction is pending.
Issue: Is hearing under Sec. 7 of Rule 58 mandatory? No!
Note: Under the general rule, it is not a regular hearing that is
Held: required. The said hearing is only summary hearing that must be
conduct within 24 hours after the sheriff’s return of service.
Rule 58, Sec. 7 hearing generally not mandatory.
The reliance of Valley on Section 7 of Rule 58 is misplaced. This Exceptions to the Requirement of Hearing
section merely specifies the actions that the court may take on
the application for the writ if there is a hearing on the merits; it 1) When there is great or irreparable injury would result to
does not declare that such hearing is mandatory or a the applicant before the mater can be heard on notice.
prerequisite therefor. Otherwise, we may have a situation
where courts will be forced to conduct a hearing even if from If the judge determines that there is great or irreparable injury, then
a consideration of the pleadings alone it can readily be he or she may issue a TRO without notice and hearing but the said
ascertained that the movant is not entitled to the writ. In fine, TRO is effective only for a period of 20 days from service on the
party sought to be enjoined.
Who issues the 20-day TRO? law, or where there is no standard by which their amount can be
The regular judge. measured with reasonable accuracy.
Meaning of Great or Irreparable Injury 2) The matter is of extreme urgency and the applicant will
suffer grave injustice and irreparable injury.
PAL v. NLRC
287 SCRA 672 As compared to the first exception, this is the heaviest ground
because it says suffered grave injustice and irreparable injury.
Facts: Pineda and Cabling are flight stewards of PAL. Both were
dismissed from the service for their alleged involvement in Note: This kind of TRO is what is called as ex parte TRO. According
currency smuggling in Hong Kong. Aggrieved by said dismissal, to Judge Guerzo, when they were still in law school, they called it a
they filed with the NLRC a petition for injunction. NLRC issued a Baby TRO. But Judge said that this is not a legal term.
temporary mandatory injunction enjoining PAL to cease and A. The TRO is issued by the Executive Judge and its effectivity is
desist from enforcing its dismissal. only for a period of 72 hours from its issuance.
Issue: Was it proper for the flight stewards to file directly with B. Within the 72-hour period, the case should be raffled to a
the NLRC a petition for injunction? No! regular judge and the latter should conduct again a summary
hearing to determine whether or not that 72-hour TRO shall be
Held: extended until the application for preliminary injunction is
heard.
Remedy of an illegally dismissed employee.
Under the Labor Code, the ordinary and proper recourse of an C. Maximum period of effectivity of TRO is only for 20 days and
illegally dismissed employee is to file a complaint for illegal include the first 72 hours.
dismissal with the labor arbiter.
Situation: It was already in the regular court and the presiding judge
In the case at bar, the flight stewards disregarded this rule and said that there is a need to extend the 72-hour TRO. We earlier said
directly went to the NLRC through a petition for injunction that the maximum period of effectivity of the TRO is 20 days.
praying that PAL be enjoined from enforcing its dismissal orders.
In Lamb vs. Phipps, we ruled that if the remedy is specifically If that regular judge will extend that 72-hour TRO, how many
provided by law, it is presumed to be adequate. days can he add?
Only 17 days because you will include there the 72-hour TRO. You
No injunction can be issued as there is no urgency or cannot exceed 20 days because the maximum period of effectivity
irreparable injury. of a TRO is only 20 days.
Furthermore, an examination of the flight steward’s petition for
injunction reveals that it has no basis since there is no showing a) If the application for preliminary injunction is denied
of any urgency or irreparable injury which the private or not resolved within the said period, the TRO is
respondents might suffer. deemed to be vacated.
When Is an Injury Considered Irreparable b) The effectivity of a TRO is not extendible and no court
An injury is considered irreparable if: shall have the authority to extend or renew the same
1. It is of such constant and frequent recurrence that no fair on the same ground for which it was issued.
and reasonable redress can be had therefor in a court of
law, or Why does the law have a stricter requirement when it comes to
2. Where there is no standard by which their amount can be the 72-hour and 20-day TRO?
measured with reasonable accuracy, that is, it is not
susceptible of mathematical computation. China Banking Corporation v. Spouses Ciriaco
GR No. 170038 July 11, 2012
It is considered irreparable injury when it cannot be adequately
compensated in damages due to the nature of the injury itself Facts: Spouses Ciriaco obtained a loan from China Bank, secured
or the nature of the right or property injured or when there exists by a REM. Spouses Ciriaco defaulted in the payment, thus China
no certain pecuniary standard for the measurement of damages. Bank extrajudicially foreclosed the mortgaged property and sold
it at public auction where the petitioner emerged as the highest
In the case at bar, the alleged injury which the flight stewards bidder.
stand to suffer by reason of their alleged illegal dismissal can be
adequately compensated and therefore, there exists no Before the expiration of the redemption period, Spouses filed a
"irreparable injury," as defined above which would necessitate complaint with RTC for Injunction to enjoin the consolidation of
the issuance of the injunction sought for. title in the China Bank’s favor. RTC granted the application for the
issuance of a writ of preliminary injunction. This affirmed by CA.
Injury is “irreparable” if it is of such constant and frequent recurrence China Banking argues that the RTC granted Spouses Ciriaco’s
that no fair or reasonable redress can be had therefor in a court of application for the issuance of a writ of preliminary injunction
and/or TRO, despite the lack of a hearing thereon.
Referring back to the exceptions to hearing, where the matter is of
Issue: Was the writ of preliminary injunction and/or TRO properly extreme urgency and the applicant will suffer grave injustice and
issued? No! irreparable injury:
Held: A preliminary injunction is an order granted at any stage GENERAL RULE: The effectivity of the TRO is not extendible and
of an action prior to the judgment or final order requiring a party no court shall have the authority to extend or renew the same on
or a court, agency or a person to refrain from a particular act or the same ground for which it was issued.
acts. It is the "strong arm of equity," an extraordinary
peremptory remedy that must be used with extreme EXCEPTIONS (as found in jurisprudence):
caution, affecting as it does the respective rights of the
parties. 1. There could be a possible extension or renewal of TRO
orders beyond 20 days from service on a ground other
From Section 5 Rule 58, it appears clearly that before a writ of than for in which it was originally issued, but there should
preliminary injunction may be issued, a clear showing must be be notice and hearing to that effect.
made that there exists a right to be protected and that the acts
against which the writ is to be directed are violative of an Marcos Manotoc vs. Agcaoili
established right. The holding of a hearing, where both parties 330 SCRA 268
can introduce evidence and present their side, is also required
before the courts may issue a TRO or an injunctive writ. Facts: Complainants herein, as heirs of Ferdinand Marcos, filed a
third-party complaint seeking to cancel Puerto Azul Land, Inc.
No Hearing Conducted (PALI)’s titles to several parcels of land which they alleged to be
In this case, the RTC abbreviated the proceedings and theirs. In defense, PALI filed a civil case for injunction and for the
precipitately granted Spouses Ciriaco’s application for injunctive issuance of a WPI and TRO against the complainants in RTC
relief. The RTC did not conduct a hearing for reception of a Cavite, of which respondent is the assisting judge.
"sampling" of the parties’ respective evidence to give it an idea
of the justification for its issuance pending the decision of the Judge issued a TRO on the same day and scheduled the hearing
case on the merits. It failed to make any factual finding to on the application for a preliminary injunction. However, on the
support the issuance of the writ of preliminary injunction since it said date, judge failed to conduct a hearing. Instead, he issued
did not conduct any hearing on the application for the issuance an order extending the effectivity of the TRO for 5 more days. On
of the writ of preliminary injunction or TRO. the 5th day, he again extended the period to 12 more days.
A preliminary injunction is an order granted at any stage of an action Issue: Whether the judge violated the rules on the issuance of
prior to the judgment or final order requiring a party or a court, TROs? Yes!
agency or a person to refrain from a particular act or acts.
Ruling: “If the matter is of extreme urgency, such that unless a
It is the "strong arm of equity," an extraordinary peremptory TRO is issued, grave injustice and irreparable injury will arise, the
remedy that must be used with extreme caution, affecting as it Executive Judge shall issue the TRO effective only for (72) hours
does the respective rights of the parties. from issuance but shall immediately summon the parties for
conference and immediately raffle the case in their presence.
Under Section 5, it appears clearly that before a writ of preliminary Thereafter, before the expiry of the 72 hours, the Presiding
injunction may be issued, a clear showing must be made that there Judge to whom the case is assigned shall conduct a summary
exists a right to be protected and that the acts against which the writ hearing to determine whether the TRO can be extended for
is to be directed are violative of an established right. The holding of another period until a hearing in the pending application for
a hearing, where both parties can introduce evidence and present preliminary injunction can be conducted. In no case shall the total
their side, is also required before the courts may issue a TRO or an period of the TRO exceed (20) days, including the original (72)
injunctive writ. hours, for the TRO issued by the Executive Judge.”
Notes: The judge cannot plausibly claim that he issued a 72-hour TRO
(a) If the TRO is issued by the CA or a member thereof, the TRO under par. 3 of Administrative Circular No. 20-95. His order did
shall be effective for 60 days from service on the party or not state that the TRO was effective for 72 hours only. Nor was it
person sought to be enjoined. stated that the order was being issued because of extreme
urgency to justify the issuance of a 72-hour TRO. The judge only
(b) If the TRO is issued by the Supreme Court or a member stated in his order that “the petition appears to be sufficient in
thereof, it shall be effective until further orders. form and substance.”
The judge committed a flagrant violation of the rules when he

60 days from service on the party or
Issued by the CA extended the TRO twice without conducting a summary hearing.
person sought to be enjoined
Issued by the SC Effective until further orders

2. A TRO is extendible provided that both parties agree to Issue: Can the trial court extend the TRO beyond the 20-day
its extension. period? Yes!
Federation of Land Reform Farmers vs. CA Ruling: Ordinarily, the efficacy of a TRO is non-extendible and
246 SCRA 175 the courts have no discretion to extend the same considering the
mandatory tenor of the Rule. However, there is no reason to
Facts: Torres was ordered by the DENR to vacate a parcel of land. prevent a court from extending the 20-day period when the
Refusing to leave the premises, he instead filed a complaint for parties themselves ask for such extension or for the maintenance
injunction with the RTC to enjoin the DENR from ejecting him. of the status quo.
The trial court issued a restraining order setting the hearing of By issuing said Order, the trial court should be deemed as merely
the application for WPI for August 19. On August 23, upon the exercising its inherent power under Section 5(b), Rule 135 of the
agreement of the parties, the trial court ordered that the status Revised Rules of Court “to enforce order in proceedings before
quote be maintained and created a committee to conduct a it” in the absence of any showing that it has gravely abused its
survey and ocular inspection of the area allegedly titled in discretion in so doing.
respondent’s name.
FLRP, as intervenors, then filed a motion to declare without force

and effect the restraining order, by arguing that a TRO has a
lifespan of only 20 days.
Temporary Restraining Order; Procedure

When an application for a writ of preliminary injunction or a 4. In either case, even if no TRO had been issued because there
is no extreme urgency, the case shall be raffled only after
temporary restraining order is included in a complaint or any
initiatory pleading, the case, if filed in a multiple-sala court, shall notice to, and in the presence of, the adverse party or the
person to be enjoined. In any event, such notice shall be
proceed as follows:
1. Verified application and bond for preliminary injunction or preceded, or contemporaneously accompanied, by service
of summons, together with a copy of the complaint or
temporary restraining order;
initiatory pleading and the applicant’s affidavit and bond,
2. Determination from facts shown by affidavits or by the
upon the adverse party in the Philippines. However, (1)
verified application that great or irreparable injury would
where the summons could not be served personally or by
result to the applicant before the matter can be heard on
substituted service despite diligent efforts, or (2) the
notice;
adverse party is a resident of the Philippines temporarily
3. If the matter is of extreme urgency and the applicant will
absent therefrom or is a nonresident thereof, the
suffer grave injustice and irreparable injury, the executive
requirement of prior or contemporaneous service of
judge of a multiple-sala court or the presiding judge of a
summons shall not apply.
single sala court may issue ex parte a temporary restraining
5. If no TRO has been issued because there is no extreme
order effective for only seventy-two (72) hours from
issuance; urgency, the application for a temporary restraining order
shall thereafter be acted upon only after all parties are
heard in a summary hearing, which shall be conducted Say that there already is a 72-hour TRO which is in a regular court.
within twenty-four (24) hours after the sheriff’s return of That regular judge must conduct a hearing within the 72-hour
service and/or the records are received by the branch period to determine whether or not to extend the said TRO. And
selected by raffle and to which the records shall be if the said regular judge will determine that it is to be extended, he
transmitted immediately. can extend that for another 17 days.
6. Within the aforesaid seventy-two (72) hours, the judge
before whom the case is pending shall conduct a summary Why 17 days? Because the 17 days should include the 72-hour TRO
hearing to determine whether the temporary restraining and the maximum effectivity period of a TRO is only 20 days.
order shall be extended until the application for preliminary
injunction can be heard. In no case shall the total period of For emphasis-
effectivity of the temporary restraining order exceed twenty GENERAL RULE: There must be hearing and notice on the party
(20) days, including the original seventy-two hours provided sought to be enjoined, subject to two exceptions:
herein. 1. Great and irreparable injury;
7. Determination, within twenty days from service of the TRO 2. When the matter is of extreme urgency.
on the party sought to be enjoined, whether a preliminary
injunction shall issue or not. Distinctions Between the Exceptions
8. The effectivity of a temporary restraining order is not Regular (Presiding) Judge Executive Judge
extendible without need of any judicial declaration to that Great and irreparable injury Extreme urgency
effect and no court shall have authority to extend or renew 20 days including 72 hours 72 hours
the same on the same ground for which it was issued. Issued after raffling Issued before raffling
Another restraining order may, therefore, be issued Requires a summary hearing Issued ex parte
provided it is not based on the same ground.
For emphasis, the regular judge can issue an ex parte TRO that is
Injunction with Preliminary Injunction and TRO
good for 20 days for the parties sought to be enjoined and the
 As discussed before, basic requirement is that there should
summary hearing is conducted within 20 days after the ex parte TRO
be a verified application showing the grounds entitling the
is being issued. That is the new rule regarding ex parte TRO.
party to its issuance + bond requirement. The determination
of the judge is merely limited to the allegations found in the
Distinguish a Writ of Preliminary Injunction from a Temporary
said affidavit. If it is determined that there is great and
Restraining Order
irreparable injury that would result to the applicant before
WPI TRO
the matter can be heard on notice, this is when we resort to
A writ of PI requires notice and May be issued ex-parte
the 20-day TRO.
hearing
Indefinite until dissolved by Good for 72 hours, which may
 The case will be raffled to a regular court. Because if you file
the court be extended for another 17
a case in court, it isn’t automatic that your case will be heard
days or for a total of 20 days
by a court. It will be raffled.
only. If issued by the regular
judge, good for 20 days.
 After notice to the adverse party and in the presence of such
party or counsel, there is also the need for Requires a bond No bond requirement
contemporaneous service of summons upon the party Note: Judge Barrion clarified the amendments in the issuance of an
sought to be enjoined. Again, great and irreparable injury – injunction and TRO, discussed below.
it will be raffled to a regular court and this is issued by a
regular judge. August 11, 2020 - Reyes, Desiree Mae
There was an oversight that I committed concerning the issuance of
Is it issued ex-parte? the 20-day TRO. I overlooked the fact that TRO now which is being
No. Within 24 hours after the records are transmitted to the branch, issued by a regular judge is issued ex parte.
the application for TRO will be acted only after all parties are heard
in a summary hearing. And take note: If the said TRO is issued, that Thus, I made a comparison between the old rule and the new rule:
is good only for 20 days.
Old Rule New Rule
If upon the filing of the case it is determined that the matter is of Thus, the court may The court may issue ex parte TRO
extreme urgency, that unless a TRO is issued, then grave and issue a TRO effective for effective for 20 days from service on
irreparable injury will arise, before the case is actually raffled to a 20 days from service on the party sought to be enjoined.
regular branch, then the executive judge will now issue the 72-hour the party sought to be a. Within 20-day period the court
TRO. This is the ex-parte TRO because it does without the notice enjoined. (the same shall must order the party to show cause
and hearing requirement. After the executive judge issues the 72- be acted only after all at a specified time and place why
hour TRO, only then will your case be raffled to a regular court, and the parties are heard in a injunction should not be granted.
only after notice to the adverse party and in the presence of such summary hearing (summary hearing conducted
party, the said notice shall be preceded or there should be a conducted within 24 within 20 days).
contemporaneous service of summons upon the person of the party hours after sheriff’s b. Determine within the prelim
who is sought to be enjoined. return of service). injunction should be granted and
issue the corresponding order.
Under the Old Rule, it is not yet ex parte. It will be issued after the
parties are heard. That is the only difference, before, not ex parte
now it is ex parte TRO that is effective for 20 days.
Note: Refer to chart.

Rule 58, Section 5
Actually they are just the same because under the old rule the 20- Grounds for Dissolution of a WPI or Objection to Its Issuance
day TRO is issued if there is great and irreparable injury and the same
will be issued after the case is raffled to a regular court and the same 1. When the insufficiency of the application is shown by
issued by the regular judge. the application itself.
Under the new rule, the main difference only is that ex parte TRO Meaning, if the petition has no basis. As previously discussed, the
can now be issued after the case enters or is raffled to a regular court one who is applying for a WPI must show that he has a clear and
and a summary hearing is conducted within 20 days unlike in the existing legal right. So if he has no right, then the application is
previous rule that the TRO will be issued only after conduct of insufficient.
summary hearing within 24 hours from the time the case is raffled
to a regular judge. That is the only main distinction between the two 2. Upon affidavit of the party or person enjoined, which
TROs. may also be opposed by the applicant also by affidavits,
then another ground for the dissolution is when the
Section 6. Grounds for objection to, or for motion of person sought to be enjoined puts up a counter-bond.
dissolution of, injunction or restraining order. — The
application for injunction or restraining order may be denied, Section 7. Service of copies of bonds; effect of disapproval of
upon a showing of its insufficiency. The injunction or restraining same. — The party filing a bond in accordance with the
order may also be denied, or, if granted, may be dissolved, on provisions of this Rule shall forthwith serve a copy of such bond
other grounds upon affidavits of the party or person enjoined, on the other party, who may except to the sufficiency of the
which may be opposed by the applicant also by affidavits. It may bond, or of the surety or sureties thereon. If the applicant's bond
further be denied, or if granted, may be dissolved, if it appears is found to be insufficient in amount, or if the surety or sureties
after hearing that although the applicant is entitled to the thereon fail to justify, and a bond sufficient in amount with
injunction or restraining order, the issuance or continuance sufficient sureties approved after justification is not filed
thereof, as the case may be, would cause irreparable damage to forthwith the injunction shall be dissolved. If the bond of the
the party or person enjoined while the applicant can be fully adverse party is found to be insufficient in amount, or the surety
compensated for such damages as he may suffer, and the former or sureties thereon fail to justify a bond sufficient in amount with
files a bond in an amount fixed by the court conditioned that he sufficient sureties approved after justification is not filed
will pay all damages which the applicant may suffer by the denial forthwith, the injunction shall be granted or restored, as the case
or the dissolution of the injunction or restraining order. If it may be.
appears that the extent of the preliminary injunction or
restraining order granted is too great, it may be modified. This is a self-explanatory provision. Let's proceed to Section 8.
Section 8. Judgment to include damages against party and

sureties. — At the trial, the amount of damages to be awarded
to either party, upon the bond of the adverse party, shall be
claimed, ascertained, and awarded under the same procedure
prescribed in section 20 of Rule 57.
Section 8 is similar to Section 20, Rule 57. Under Sec. 20, Rule 57, Bataclan vs. Court of Appeals
when you recover for damages, you have to file the same in the same G.R. No. 78148 July 31, 1989
case. You cannot file an independent case for damages.
Doctrine: Summary denial without hearing is improper.
Section 9. When final injunction granted. — If after the trial of
the action it appears that the applicant is entitled to have the act Facts: Spouses Caragao filed for the reconveyance or
or acts complained of permanently enjoined the court shall grant cancellation over a parcel of land against Bataclan, its registered
a final injunction perpetually restraining the party or person co-owners. A judgment by default and writ of execution pending
enjoined from the commission or continuance of the act or acts appeal was issued in their favor placing them in possession of the
land.
of confirming the preliminary mandatory injunction.
Bataclan filed a petition for certiorari with injunction before the

Section 9 is Final Injunction. If it will be asked in your bar exam, "How CA to annul the judgment and writ of execution issued pending
do you distinguish a Final Injunction from a Preliminary appeal. Upon finality of the decision before the CA, the RTC,
Injunction?" then of course you can answer that because a final issued a writ of execution to restore possession of the land to
injunction is found under Section 9 of Rule 58. them.
Let's proceed to jurisprudence! Are you ready? Let’s go! Private respondents then filed a complaint for damages with
injunction against petitioners before the RTC. After hearing their
PNB vs. ADIL prayer for preliminary injunction, the RTC denied their request.
G.R. No. L-52823 November 2, 1982 The CA reversed this order of denial by the RTC.
Doctrine: A suspension order is equivalent to injunction. Issue: Was the issuance of a writ of preliminary injunction was
proper? No!
Facts: Melliza obtained a loan from PNB, secured by a mortgage
over 2 parcels of land. For failure to pay the loan on maturity, the Ruling: In the issuance of the WPI, the courts are given sufficient
mortgage was foreclosed extrajudicially, at which PNB purchased discretion to determine the necessity for the grant of the relief
the said properties during the foreclosure sale. PNB filed an ex- prayed for as it affects the respective rights of the parties, with
parte petition for issuance of a writ of possession before the RTC, the caveat that extreme caution be observed in the exercise of
which the court granted. Before the ejectment was completed, such discretion.
the Sheriff received an order issued motu proprio by the judge
that the implementation of the writ of possession was suspended Quintessentially, it is with an equal degree of care and caution
for “humanitarian reasons” for a period of 15 days. that courts ought to proceed in the denial of the writ. It
should not just summarily issue an order of denial without
Issue: Whether the execution of the writ of possession may be an adequate hearing and judicious evaluation of the merits
suspended by the judge? No! of the application. A perfunctory and improvident action in
this regard would be a denial of procedural due process and
Ruling: When the reason given by the judge in issuing the order could result in irreparable prejudice to a party.
of suspension was not specified in the order, but stated only in
general term, as "humanitarian reasons," the Court did not act In the case at bar, it is patent that herein petitioners did not
within the bounds of the law. The order was, furthermore, issued intend to forthwith oust private respondents from the contested
motu proprio and without the PNB being afforded the right to lot. In their answer, petitioners merely sought to dismiss the
present its side. An order suspending the implementation of an complaint and, by way of counterclaim, to recover damages. The
earlier order is like an injunction which must be issued always trial court, therefore, gravely abused its discretion in ordering the
with circumspection, and upon proper motion of the party ejectment of herein private respondents. In effect, it disposed of
concerned. the main case without the requisite hearing on the evidence to be
presented. The denial order of January 13, 1986 is, for all intents
As it is, the suspension order has a far-reaching effect. It enabled and purposes, an adjudication on the merits of the case, in gross
private respondents to withhold the possession from PNB and violation of the constitutional mandate that a party shall have the
file the complaint where an injunction was sought. Had not right to be heard and to present evidence.
respondent judge issued such order, PNB could have already
taken possession of the property, thereby acquiring an absolute When you apply before the court for its issuance, necessarily there
ownership over the property, and injunction could no longer is notice and hearing. So if the court should determine that its
have been issued. A prohibitory injunction cannot be issued issuance for the application is inadequate, then it can deny the
when the act sought to be enjoined has already been committed. same but there should be notice and hearing.
Neither can a mandatory injunction issue, for it is a well-settled
rule that injunction will not lie to take the property out of control
of the party in possession.

Effect When A Higher Court Issues A WPI Against A Lower Court China Banking Corporation vs. Spouses Cinaco
Or Tribunal In A Petition For Certiorari Under Rule 65 GR No. 170038 July 11, 2012
 The trial court, CA, Sandiganbayan, or CTA that issued a Note: See main digest in preceding pages.
WPI against a lower court, board, officer, or quasi-judicial
agency shall decide the main case or petition within 6 The holding of a hearing, where both parties can introduce
months from the issuance of the writ. evidence and present their side is also required before the courts
may issue a TRO or an injunctive writ.
 Under this provision, higher courts that restrain a lower
court from proceeding with a case by issuing a WPI must Remember that last meeting, I asked some of your classmates "What
decide the petition for certiorari within 6 months in order are possible principal actions wherein you can ask for the issuance
not to unduly delay the main case that is lodged in the of a writ of preliminary injunction?" One mentioned that it is allowed
lower court. under Rule 70, the Rule on Forcible Entry and Unlawful Detainer
cases. When you say Forcible Entry and Unlawful Detainer cases, that
Before, this practice has been abused by some courts. There is a pertains to the recovery of physical possession of properties.
decision of a judge that is being elevated to a higher court, and then
the applicant is able to secure a PI. The judge of the lower or higher How about recovery of possession of properties which could be
court would usually opt not to decide the case because their Accion Publiciana or Accion Reinvidicatoria? Is the issuance of a
decision is enjoined. But now the law says that practice is no more WPI proper?
because the said lower court, tribunal, etc. must decide the petition No. Generally, when we say Recovery of Possession of Real Property,
for certiorari within 6 months in order not to unduly delay the main we are talking about possession. In numerous SC rulings, you cannot
case that is lodged in the lower court. use a WPI to simply take possession of a property and transfer it to
another.
Supreme Court Guidelines in the Issuance of TROs and/or
Preliminary Injunction What are other main actions where you can pray for an issuance
Class, a word of caution: When you become lawyers, don’t keep of a WPI?
praying for a preliminary injunction as a remedy in courts. You know The answer is found in the cases that I gave you. Read the cases and
why? Because it’s very hard to prove that your client is entitled to its you'll know when a preliminary prohibitory injunction, and
issuance. In fact- preliminary mandatory injunction is proper. Those are the main
cases.
Judges are enjoined to observe utmost caution, prudence, and
judiciousness in issuance of temporary restraining orders and Rule 57 Rule 58
writs of preliminary injunctions to avoid any suspicion that its Writ of Preliminary Attachment As a general rule, it cannot be
issuance or grant was for consideration other than strict merits can be issued ex-parte. issued ex-parte, subject to two
of the case. exceptions:
(Administrative Circular No. 07-99, issued June 25, 1999)
a. great and irreparable injury;
For example, you filed an ejectment case with forcible entry or and
unlawful detainer and you prayed for the issuance of a WPI. You b. when the matter is of
cannot compel the judge to issue the same. extreme urgency and the
applicant will suffer great and
And as cited in the case of Garcia vs. Burgos, courts are without irreparable injury, but there
jurisdiction to issue writs against the implementation or must be a summary hearing
execution of government infrastructure projects. (Administrative and not a regular hearing.
Circular No. 11- 2000, Re: Ban on Issuance of Temporary Restraining
Orders or Writs of Preliminary Prohibitory or Mandatory Injunctions in
Cases involving Government Infrastructure Projects, issued on 13
November 2000).
If the court issues a WPI enjoining the implementation or execution

of a government infrastructure project, the judge is considered to
be grossly ignorant of the law.
As already cited earlier, Injunction is considered as a strong arm of

equity, an extraordinary peremptory remedy that must be used with
extreme caution since it affects the respective rights of the parties.
Under Sec. 5, it appears clearly that before a WPI may be issued,
there must be a clear showing that there exists a right to be
protected and that the acts against which the writ is to be directed
are violative of an established right.

August 11, 2020 - Reyes, Desiree Mae said that yes, when it is necessary to protect the rights of the real
owner.
RULE 59 RECEIVERSHIP
Section 1. Appointment of Receiver. — Upon a verified
application, one or more receivers of the property subject of the
Receivership action or proceeding may be appointed by the court where the
It is a legal or equitable proceeding in which a receiver is appointed action is pending or by the Court of Appeals or by the Supreme
for an insolvent corporation, partnership or individual to preserve its Court, or a member thereof, in the following cases:
assets for the benefit of the affected parties.
(a) When it appears from the verified application, and such other
A receiver is a person appointed by the court on behalf of all the proof as the court may require, that the party applying for the
parties to the action for the purpose of preserving and conserving appointment of a receiver has an interest in the property or fund
the property in litigation and prevent its possible destruction or which is the subject of the action or proceeding, and that such
dissipation, if it were left in the possession of any of the parties. property or fund is in danger of being lost, removed, or materially
(Commodities Storage & Ice Plant Corporation, et al. v. Court of Appeals, injured unless a receiver be appointed to administer and preserve
et al., G.R. No. 125008, June 19, 1997, 274 SCRA 439.) it;
He is not the agent or representative of either party to the action, (b) When it appears in an action by the mortgagee for the
but is uniformly regarded as an officer of the court, exercising his foreclosure of a mortgage that the property is in danger of being
functions in the interest of neither plaintiff nor defendant, but for wasted or dissipated or materially injured, and that its value is
the common benefit of all parties in interest (Pacific Merchandising probably insufficient to discharge the mortgage debt, or that the
Corp. v. Consolacion & Surety Co. Inc. G.R. No. 30204, October 29, 1976, parties have so stipulated in the contract of mortgage;
73 SCRA 564).
(c) After judgment, to preserve the property during the pendency
In the case of Commodities Storage & Ice Plant Corporation, et al. v. of an appeal, or to dispose of it according to the judgment, or to
Court of Appeals, et al., the guiding principle in petition for aid execution when the execution has been returned unsatisfied
receivership is the prevention of imminent danger to the property. If or the judgment obligor refuses to apply his property in
an action by its nature, does not require such protection or satisfaction of the judgment, or otherwise to carry the judgment
reservation, said remedy cannot be applied for and granted. into effect;
In the case of Arranza, et al. v. B.F. Homes, Inc., et al., (G.R. No. 131683, (d) Whenever in other cases it appears that the appointment of
June 19, 2000, 333 SCRA 799), the Supreme Court held that It is the a receiver is the most convenient and feasible means of
duty of the receiver to administer the assets of the receivership preserving, administering, or disposing of the property in
estate; and in the management and disposition of the property litigation.
committed to his possession, he acts in a fiduciary capacity and
with impartiality towards all interested persons. During the pendency of an appeal, the appellate court may allow
an application for the appointment of a receiver to be filed in and
Purpose decided by the court of origin and the receiver appointed to be
subject to the control of said court. (1a)
It is aimed at the preservation of and making more secure, existing
rights, it cannot be used as an instrument for the destruction of
those rights (Arranza, et al. v. B.F. Homes, Inc., et al.). When Receiver May be Appointed?
Appointment of a Receiver A.
When it appears from the verified application, and such other proof as
Who may be appointed? the court may require, that the party applying for the appointment of a
GR: Neither party to the litigation should be appointed as a receiver receiver has an interest in the property or fund which is the subject of the
without the consent of the other because a receiver is supposed to action or proceeding, and that such property or fund is in danger of
being lost, removed, or materially injured unless a receiver be appointed
be an impartial and disinterested person.
to administer and preserve it;
A clerk of court should not be appointed as receiver as he is already

Principal Action: Action to recover possession of property with a
burdened with his official duties.
prayer for the appointment of a receiver.
Can a party (plaintiff or defendant) to a case be appointed as
Again, provisional remedy is only an ancillary action and there
receiver?
should be a principal action.
As a general rule, it is not allowed. Neither party to the case can be
appointed as a receiver unless consented to by all the parties.
EX: A files a case against B to collect unpaid loan. B, the defendant
has no other property left except a piece of land. Assuming A wins,
Can a receiver be appointed over property under custodia legis?
the land is the only property that he can levy. To preserve the
Wouldn’t that be useless because that is already under the control and
property of A, the plaintiff files an application to place the property
supervision of the court? Yes. Dollar vs Sundiang. In this case the SC
under the receivership.

Is receivership proper? documentary proofs were submitted. In this atmosphere of
No. Receivership is proper if subject of litigation is recovery of strained relationship between the parties, of unsatisfactory
possession of a property. arrangement for the administration of the properties involved,
not to mention the conveyance by petitioners of some of the
B. conjugal properties left by the deceased spouse of Rosendo
When it appears in an action by the mortgagee for the foreclosure of a Ralla, Paz Escarilla, it was not entirely improper to direct the
mortgage that the property is in danger of being wasted or dissipated or appointment of a receiver. All the circumstances found by the
materially injured, and that its value is probably insufficient to discharge lower court apparently justify the constitution of the receivership
the mortgage debt, or that the parties have so stipulated in the contract of the lands in question. The requirements of law have been more
of mortgage;
than satisfied.
Principal Action: Foreclosure of mortgage.

While in a partition proceeding it is generally unnecessary for the
court to appoint a receiver, however, (as held in the case of
Memorize class under Section 1 (b) your main action is foreclosure
Tuason vs. Concepcion) where the relations among the co-
of mortgage with prayer for the appointment of a receiver. owners are strained, and no satisfactory arrangement for
administration can be accomplished, the appointment of a
C. receiver is not an abuse of discretion.
After judgment, to preserve the property during the pendency of an
appeal, or to dispose of it according to the judgment, or to aid execution
when the execution has been returned unsatisfied or the judgment Note: Memorize letter a to d.
obligor refuses to apply his property in satisfaction of the judgment, or
otherwise to carry the judgment into effect (remedy in aid of execution, Who may appoint a receiver?
Rule 39);
1. Court where the main action is pending
2. Supreme Court
Not a Principal Action!
3. Court of Appeals
This is not principal action. With regard to letter c, the remedy of
4. During pendency of appeal, the appellate court may allow an
receivership can be availed of in aid of execution. You cross-refer it
application for the appointment of receiver to be filed and
with Rule 39.
decided by the court of origin.
D.
When can one avail of the remedy of receivership? When is this
Whenever in other cases it appears that the appointment of a receiver is
remedy available who seeks for its appointment?
the most convenient and feasible means of preserving, administering, or
disposing of the property in litigation.
As general rule during the pendency of the proceedings. Obviously,
you file that where the principal action is pending. Second, it is also
available:
Ralla v. Alcasid
1. After judgment
116 Phil. 622, 625 [1962]
2. During pendency of appeal.
3. Even after finality of the judgment.
A receiver of real or personal property, which is the subject of the
action, may be appointed by the court when it appears from the
That is why it is one of those tools to aid execution of judgment as
pleadings, and/or such other proof as the judge may require, that
found under Rule 39 of your Rules of Court.
the party applying for such appointment has an actual interest
in it and that such property is in danger of being lost, removed
or materially injured. The appointment is also proper whenever it Section 2. Bond on appointment of receiver. — Before issuing
appears to be the most convenient and feasible means of the order appointing a receiver the court shall require the
preserving, or administering the property in litigation. applicant to file a bond executed to the party against whom the
application is presented, in an amount to be fixed by the court,
The appointment of a receiver depends principally upon the to the effect that the applicant will pay such party all damages he
sound discretion of the court; it is not a matter of absolute right. may sustain by reason of the appointment of such receiver in
case the applicant shall have procured such appointment without
The facts and circumstances, of each particular case determine sufficient cause; and the court may, in its discretion, at any time
the soundness of the exercise of such discretion. Among the after the appointment, require an additional bond as further
consequences and effects considered by the courts before security for such damages. (3a)
appointing a receiver are:
(a) whether or not the injury resulting from such appointment If you notice, from rule 57, 58, 59, what is the basic requirement
would probably be greater than the injury ensuing if the when it comes to provisional remedies:
status quo is left undisturbed; and 1. Affidavit
(b) whether or not the appointment will imperil the interests of 2. Bond unless exempted by the court.
others whose rights deserve as much a consideration from
the court as those of the person requesting for receivership. Under section 2, the bond here is posted by the party applying for
the appointment of a receiver.
In this case: The court ordered the appointment of a receiver
after hearing and presentation of evidence by both parties.
Eleven sessions were had for that purpose; numerous
Basic Requirement for Receivership forthwith, the receiver shall be appointed or re-appointed, as the
1. Verified application case may be. (6a)
2. Bond
a. amount fixed by the court and posted by the applicant Section 6. General powers of receiver. — Subject to the control
b. pay such party all damages he may sustain by reason of the court in which the action or proceeding is pending a
of the appointment of such receiver in case the receiver shall have the power:
applicant shall have procured such appointment 1. to bring and defend, in such capacity, actions in his own
without sufficient cause (undertaking of the bond). name;
2. to take and keep possession of the property in controversy;
Section 3. Denial of application or discharge of receiver. — 3. to receive rents;
The application may be denied, or the receiver discharged, when 4. to collect debts due to himself as receiver or to the fund,
the adverse party files a bond executed to the applicant, in an property, estate, person, or corporation of which he is the
amount to be fixed by the court, to the effect that such party will receiver;
pay the applicant all damages he may suffer by reason of the acts, 5. to compound for and compromise the same;
omissions, or other matters specified in the application as ground 6. to make transfers;
for such appointment. The receiver may also be discharged if it 7. to pay outstanding debts;
is shown that his appointment was obtained without sufficient 8. to divide the money and other property that shall remain
cause. (4a) among the persons legally entitled to receive the same; and
9. generally to do such acts respecting the property as the
Grounds for Denial of Application court may authorize.
Section 3 talks about denial of application and discharge of receiver:
1. The appointment is shown to be without sufficient cause; However, funds in the hands of a receiver may be invested only
2. When the other party files a counterbond. by order of the court upon the written consent of all the parties
to the action. (7a)
This counterbond will pay all damages which the applicant may
suffer by reason of the acts, omissions, or other matters in the No action may be filed by or against a receiver without leave of
application or ground for such appointment. Memorize. There are the court which appointed him. (n)
only 2 grounds.
Section 4. Oath and bond of receiver. — Before entering upon The powers of a receiver are similar to an administrator of an estate.
his duties, the receiver shall be sworn to perform them faithfully, Also, if he brings and defends actions in his own name as a receiver,
and shall file a bond, executed to such person and in such sum it must be made with leave of court. He needs to ask the court which
as the court may direct, to the effect that he will faithfully appointed him, since he is subject to the control and supervision of
discharge his duties in the action or proceeding and obey the the court which appointed him.
orders of the court. (5a)
Salientes v. IAC
GR 66211 July 14, 1995
Assuming that the application is found to be sufficient, now the
court will appoint a receiver. So that receiver is considered as officer
Facts: Salientes filed a complaint for annulment of the titles of
of the court. That is why he has to take his oath.
private respondents in CFI Rizal. He instituted the action in his
capacity as the receiver of the same court "to administer,
If you notice under Rule 59 there are 2 bonds:
preserve and protect" all the parcels of land covered by OCT. The
1. Bond executed by the applicant; and
complaint alleged, inter alia, that said trial court in a decision
2. Bond put up by the receiver himself.
dated in Civil Case C, declared the lands covered by the Maysilo
Estate in Caloocan City, to be the common property of Isabel Gil
Purpose: The receiver is required to put a bond to ensure faithful
de Sola and several co-owners; that no portion of the Maysilo
compliance of his duties and obey court orders.
Estate had been alienated to anybody, much less to private
respondents.
August 11, 2020 – Mikel H. Delgado
Section 5. Service of copies of bonds; effect of disapproval
Private respondents averred that Salientes, not claiming to be the
of same. — The person filing a bond in accordance with the
owner of the property subject of the complaint, had no legal
provisions of this Rule shall forthwith serve a copy thereof on
interest to protect and that the titles over the lots.
each interested party, who may except to its sufficiency or of the
surety or sureties thereon. If either the applicant's or the
Salientes, however, claims that he has authority to file the
receiver's bond is found to be insufficient in amount, or if the
complaint for the recovery of the lots in question under Section
surety or sureties thereon fail to justify, and a bond sufficient in
7 which empowers a receiver to bring and defend actions in his
amount with sufficient sureties approved after justification is not
own name and "to do such acts respecting the property as the
filed forthwith, the application shall be denied or the receiver
court may authorize."
discharged, as the case may be. If the bond of the adverse party
is found to be insufficient in amount or the surety or sureties
Issue: Whether Salientes had the legal personality to file the
thereon fail to justify, and a bond sufficient in amount with
action? Yes!
sufficient sureties approved after justification is not filed
Section 8. Termination of receivership; compensation of

Held: In interpreting Section 7, we held that a receiver of a land receiver. — Whenever the court, motu proprio or on motion of
may be sued by the tenant of said land in that capacity under either party, shall determine that the necessity for a receiver no
said Rule, which allowed the receiver to bring and defend actions longer exists, it shall, after due notice to all interested parties and
in such capacity in his own name. A receiver sued in such a hearing, settle the accounts of the receiver, direct the delivery of
capacity cannot claim that the plaintiff must first obtain the the funds and other property in his possession to the person
permission to do so from the Court having jurisdiction over the adjudged to be entitled to receive them and order the discharge
receivership proceedings. Under Section 7, Rule 61 of the Rules of the receiver from further duty as such. The court shall allow
of Court, "a receiver shall have the power to bring and defend, as the receiver such reasonable compensation as the circumstances
such actions in his own name subject to the control of the court of the case warrant, to be taxed as costs against the defeated
in which the action is pending." party, or apportioned, as justice requires. (8a)
A receiver is a representative of the court appointing him for Termination of Receivership May be Motu Proprio
the purpose of preserving and conserving the property Automatic on the part of the court or either of the party may file a
under receivership and preventing its possible destruction or motion. If it is upon motion, there must be notice and hearing to all
dissipation, if it goes to the possession of another person. In interested parties.
the case at bench, Salientes had to take action to question the
right of private respondents in transferring portions of the land. Section 9. Judgment to include recovery against sureties. —
The amount, if any, to be awarded to any party upon any bond
CA overlooked that even after judgment, a receiver may still be filed in accordance with the provisions of this Rule, shall be
appointed, or if previously appointed, retains certain powers to claimed, ascertained, and granted under the same procedure
implement the execution of said judgment. prescribed in section 20 of Rule 57. (9a)
While under Section 7, Rule 59, the exercise of the general This is the claim for damages because the bond will answer for any
powers of a receiver is specifically made subject "to the control damages sustained by the other party. If you seek damages, do it in
of the court in which action is pending" and the practice is for the the same case because you cannot institute a separate case or
receiver to first apply to the court for an order to prosecute an proceeding.
action in the name of persons having the legal right to be
defended or redressed, a peculiar circumstance removes the
instant case from the ordinary run of cases filed by receivers in
Specific Situations When Receiver May Be Appointed
their own name.
Family Code
Article 101. If a spouse without just cause abandons the other or fails to
Salientes was appointed receiver by the CFI Rizal, to preserve and
comply with his or her obligations to the family, the aggrieved spouse
protect the Maysilo Estate. He filed the action to annul the titles
may petition the court for receivership, for judicial separation of property
of private respondents (which he claims overlapped portions of or for authority to be the sole administrator of the absolute community,
the Maysilo Estate). subject to such precautionary conditions as the court may impose.
If the said court believed that the action was not proper, it could The obligations to the family mentioned in the preceding paragraph
have dismissed it. Instead of doing so, it denied the motion to refer to marital, parental or property relations.
dismiss filed by private respondents.
A spouse is deemed to have abandoned the other when her or she has
left the conjugal dwelling without intention of returning. The spouse who
Section 7. Liability for refusal or neglect to deliver property has left the conjugal dwelling for a period of three months or has failed
to receiver. — A person who refuses or neglects, upon within the same period to give any information as to his or her
reasonable demand, to deliver to the receiver all the property, whereabouts shall be prima facie presumed to have no intention of
returning to the conjugal dwelling. (178a)
money, books, deeds, notes, bills, documents and papers within
his power or control, subject of or involved in the action or
Rule 39 Section 41
proceeding, or in case of disagreement, as determined and
Section 41. Appointment of receiver. — The court may appoint a
ordered by the court, may be punished for contempt and shall
receiver of the property of the judgment obligor; and it may also forbid
be liable to the receiver for the money or the value of the
a transfer or other disposition of, or any interference with, the property
property and other things so refused or neglected to be of the judgment obligor not exempt from execution. (43a)
surrendered, together with all damages that may have been
sustained by the party or parties entitled thereto as a After perfection of an appeal, the trial court still retains jurisdiction to
consequence of such refusal or neglect. (n) appoint a receiver of a property under litigation, since that matter does
not touch upon the subject of appeal.
Section 7
If you refuse to deliver the property to the receiver, then you can be After final judgment, a receiver may be appointed as an aid to the
execution of judgment.
cited in contempt of court provided that a reasonable demand has
been made.
Appointment of a receiver over a property in custodia legis may be
allowed when it is justified by special circumstances as when it is

reasonably necessary to protect the rights of the real owner (Dollar
v. Sundiang). RULE 60 REPLEVIN
Acuña v. Caluag
G.R. No. L-10736 April 30, 1957 Replevin is a possessory action, the gist of which is the right of
possession in the plaintiff. The primary relief sought therein is the
Facts: The Judge appointed Romero as receiver of the properties return of the property in specie wrongfully detained by another
involved over the opposition of the Acuña. The Judge issued an person. It is an ordinary statutory proceeding to adjudicate rights to
order directing the Sheriff of Rizal to place receiver Romero in the title or possession of personal property. (Basaya v. Militante GR
possession of the premises. The Judge issued another order 75837)
requiring Acuña within two days to comply with his order
commanding him to surrender the possession of the premises to It is a mixed action being partly in rem insofar as the recovery of
the receiver, under penalty of contempt of court. Acuña filed a personal property is concerned and in personam as to the damages
motion for reconsideration on the ground that both orders were involved.
issued without jurisdiction which Judge had lost by reason of the
perfection of the appeal. The Judge issued an order denying Main Action: Action to Recover Possession of Personal Property
Acuña’s MR and directed to deliver the property in question to with a Prayer for the Issuance of a Writ of Replevin
the receiver within two days, "failing which, they shall be dealt
with accordingly." Is the provisional remedy of replevin available if the main case
if a recovery of possession of real property?
According to Acuña, inasmuch as they had perfected their appeal No. The main action should be an action to recover possession of
in the main case which involves the possession of the property in personal property.
question, Judge no longer had jurisdiction over said question of
possession, much less could he deprive the appellants of their Serg’s Products v. PCI Leasing
actual possession and deliver the same to another. GR 137705 August 22, 2000
Issue: Whether the judge still had jurisdiction to appoint the After agreeing to a contract stipulating that a real or immovable
receiver? Yes! property be considered as personal or movable, a party is
estopped from subsequently claiming otherwise. Hence, such
Held: Although the perfection of an appeal deprives the trial property is a proper subject of a writ of replevin obtained by the
court of jurisdiction over the case, nevertheless, under the law, other contracting party.
said court retains jurisdiction as regards the preservation of
the property under litigation and involved in the appeal, Facts: PCI Leasing filed a complaint for sum of money with an
including necessarily the authority to appoint a receiver who has application for a writ of replevin. Serg contend that the subject
the power to take and keep possession of the property in machines used in their factory were not proper subjects of the
controversy. According to respondents' answer to the petition, Writ issued by the RTC, because they were in fact real property.
petitioners did not contest the legality and propriety of the Serious policy considerations, they argue, militate against a
appointment of the receiver; they did not even file a motion for contrary characterization.
reconsideration of the appointment. Consequently, it is now
rather late to raise the question of the propriety and legality of Issue: Whether the said machines are personal, not immovable,
the order of the court appointing said receiver. property which may be a proper subject of a writ of replevin?
According to the same answer, Acuñas herein are insolvent: the Held: Rule 60 of the Rules of Court provides that writs of replevin
building and improvements involved in the appeal in danger of are issued for the recovery of personal property only.
being destroyed or impaired; and Acuñas have failed to pay the
rents, amounting to about P15K, for which the receiver was In the present case, the machines that were the subjects of the
appointed. Writ of Seizure were placed by Serg’s Products in the factory built
on their own land. Indisputably, they were essential and principal
Petitioners insinuate in their petition that the order for the elements of their chocolate-making industry. Hence, although
delivery of the property to the receiver "touches a matter each of them was movable or personal property on its own, all of
litigated by the appeal, i.e., the physical possession of the them have become "immobilized by destination because they
petitioners". That is not correct. The question litigated in the are essential and principal elements in the industry." In that
appeal is who has a better right to possession. The appointment sense, Serg’s Products are correct in arguing that the said
of the receiver with order to deliver possession to him does not machines are real, not personal, property pursuant to Article 415
touch upon, much less decide that question. It merely means that (5) of the Civil Code.
pending appeal, and to preserve the property and keep the rents,
the trial court through its officer, the receiver, would take Be that as it may, we disagree with the submission of the Serg’s
possession. The orders of Judge on petitioner's to deliver Products that the said machines are not proper subjects of the
possession of the property to the receiver are therefore valid and Writ of Seizure.
it was petitioners' duty to obey the same.
The Court has held that contracting parties may validly stipulate
that a real property be considered as personal. After agreeing to
such stipulation, they are consequently estopped from claiming not required to so join as defendants other persons claiming a
otherwise. Under the principle of estoppel, a party to a contract right on the property but not in possession thereof.
is ordinarily precluded from denying the truth of any material fact
found therein. Rule 60 of the Rules of Court allows an application for the
immediate possession of the property but the plaintiff must show
Applying Tumalad, the Court also held that the machinery used that he has a good legal basis, i.e., a clear title thereto, for seeking
in a factory and essential to the industry, as in the present case, such interim possession.
was a proper subject of a writ of replevin because it was treated
as personal property in a contract. Where the right of the plaintiff to the possession of the specific
property is so conceded or evident, the action need only be
In the present case, the Lease Agreement clearly provides that maintained against him who so possesses the property.
the machines in question are to be considered as personal
property. Enforceability of Writ of Replevin
The writ of replevin is enforceable anywhere in the Philippines.
Clearly then, Serg’s Products are estopped from denying the
characterization of the subject machines as personal property.
Fernandez v. International Corporate Bank
Under the circumstances, they are proper subjects of the Writ of
GR 131283, October 7, 1999
Seizure.
A writ of replevin issued by the MTC of Pasay City may be served
It should be stressed, however, that our holding that the
and enforced anywhere in the Philippines. Moreover, the
machines should be deemed personal property pursuant to the
jurisdiction of a court is determined by the amount of the claim
Lease Agreement – is good only insofar as the contracting parties
alleged in the complaint, not by the value of the chattel seized in
are concerned. Hence, while the parties are bound by the
ancillary proceedings.
Agreement, third persons acting in good faith are not affected by
its stipulation characterizing the subject machinery as personal.
Under the Resolution of the Supreme Court en banc dated
In any event, there is no showing that any specific third party
January 11, 1983, providing for the interim rules and guidelines
would be adversely affected.
relative to the implementation of BP 129, a writ of replevin like
the one issued in the present case may be served anywhere in
Purpose of Replevin the Philippines.
Replevin, broadly understood, is both a form of principal remedy
and of a provisional relief. It may refer either to the action itself, i.e., Section 1. Application. — A party praying for the recovery of
to regain the possession of personal chattels being wrongfully possession of personal property may, at the commencement of
detained from the plaintiff by another, or to the provisional remedy the action or at any time before answer, apply for an order for
that would allow the plaintiff to retain the thing during the the delivery of such property to him, in the manner hereinafter
pendency of the action and hold it pendente lite. provided. (1a)
BA Finance v. Court of Appeals

Period to Apply for a Writ of Replevin
GR 102998, July 5, 1996
1. At the commencement of the action or
2. Any time before answer
Petitioner insists that a mortgagee can maintain an action for
replevin against any possessor of the object of a chattel
This is the distinction of replevin compared to other provisional
mortgage even if the latter were not a party to the mortgage.
remedies. This is, unlike attachment, injunction, and support
pendente lite which may be issued any time before final judgment,
Replevin, broadly understood, is both a form of principal remedy
and also unlike receivership which may be issued any time even after
and of a provisional relief. It may refer either to the action itself,
final judgment.
i.e., to regain the possession of personal chattels being
wrongfully detained from the plaintiff by another, or to the
Section 2. Affidavit and bond. — The applicant must show by
provisional remedy that would allow the plaintiff to retain the
his own affidavit or that of some other person who personally
thing during the pendency of the action and hold it pendente
knows the facts:
lite. The action is primarily possessory in nature and generally
determines nothing more than the right of possession.
(a) That the applicant is the owner of the property claimed,
Replevin is so usually described as a mixed action, being partly in
particularly describing it, or is entitled to the possession thereof;
rem and partly in personam — in rem insofar as the recovery of
specific property is concerned, and in personam as regards to
(b) That the property is wrongfully detained by the adverse party,
damages involved. As an "action in rem," the gist of the replevin
alleging the cause of detention thereof according to the best of
action is the right of the plaintiff to obtain possession of specific
his knowledge, information, and belief;
personal property by reason of his being the owner or of his
having a special interest therein. Consequently, the person in
(c) That the property has not been distrained or taken for a tax
possession of the property sought to be replevied is ordinary the
assessment or a fine pursuant to law, or seized under a writ of
proper and only necessary party defendant, and the plaintiff is
execution or preliminary attachment, or otherwise placed under

custodia legis, or if so seized, that it is exempt from such seizure Dismissal of the replevin suit for lack of cause of action in
or custody; and view of the private respondents' failure to exhaust
administrative remedies should have been the proper cause of
(d) The actual market value of the property. action by the lower court instead of assuming jurisdiction over
the case and consequently issuing the writ ordering the return of
The applicant must also give a bond, executed to the adverse the truck. Exhaustion of the remedies in the administrative forum,
party in double the value of the property as stated in the affidavit being a condition precedent prior to one's recourse to the
aforementioned, for the return of the property to the adverse courts and more importantly, being an element of private
party if such return be adjudged, and for the payment to the respondents' rights of action is too significant to be waylaid by
adverse party of such sum as he may recover from the applicant the lower court.
in the action. (2a)
As petitioner clearly failed to exhaust available administrative
(a) That the applicant is the owner of the property claimed, remedies, the CA correctly set aside the assailed orders granting
particularly describing it, or is entitled to the possession thereof; petitioner's application for a replevin writ and denying private
respondent's motion to dismiss. Having been forfeited pursuant
Even if the applicant is not the owner of the property, as long as he to P.D. No. 705, as amended, the lumber properly came under
shows in the affidavit that he is entitled to the possession of the the custody of the DENR and all actions seeking to recover
personal property. possession thereof should be directed to that agency.
(d) The actual market value of the property. The appellate court's directive to the trial court judge to allow the
agent of the DENR to file a counterbond in order to recover
Take note that it is the actual market value, not merely the probable custody of the lumber should be disregarded as being contrary
market value of the property. The purpose of stating this in the to its order to dismiss the replevin suit of petitioner. For, indeed,
application is to determine the jurisdiction of the court. what it should have done was to dismiss the case without
prejudice to petitioner filing her claim before the DENR.
Jurisdiction for Recovery of Personal Property
Court Outside Metro Manila Metro Manila Bond Requirement
MTC 300K and below 400K and below The applicant must also give a bond, executed to the adverse party
RTC Above 300K Above 400K in double the value of the property as stated in the affidavit
aforementioned. The bond requirement is stricter in replevin cases
as it is double the value of the property since it will answer for the
Dy v. Court of Appeals citing Paat v. Court of Appeals return of the property to the adverse party if such return be
G.R. No. 121587 March 9, 1999 adjudged, and for the payment to the adverse party of such sum as
he may recover from the applicant in the action.
The threshold question is whether the RTC could in fact take
cognizance of the replevin suit, considering that the object was Section 3. Order. — Upon the filing of such affidavit and
the recovery of lumber seized and forfeited by law enforcement approval of the bond, the court shall issue an order and the
agents of the DENR pursuant to PD 705 (Revised Forestry Code). corresponding writ of replevin, describing the personal property
alleged to be wrongfully detained and requiring the sheriff
Yes. But he should have exhausted administrative remedies forthwith to take such property into his custody. (3a)
before seeking redress before the courts.
The writ of replevin is directed against the court sheriff. Courts
Ruling: The rule is that a party must exhaust all administrative emanating from the court is directed against the sheriff to
remedies before he can resort to the courts. Before a party may implement.
be allowed to seek the intervention of the court, it is a pre-
condition that he should have availed himself of all the means Hearing is Not Necessary for Replevin Cases
afforded by the administrative processes. Hence, if a remedy The order is issued without hearing because the law only states the
within the administrative machinery can still be resorted to by filing of an affidavit stating the requirements under Section 2 and
giving the administrative officer concerned even opportunity to that the bond must be approved by the court.
decide on a matter that comes within his jurisdiction then such
remedy should be exhausted first before a court's judicial power It is based only on the pleading that you filed on court.
can be sought. The premature invocation is fatal to one's cause
of action. Accordingly, absent any finding of waiver or estoppel, August 11, 2020 – EJ Lastimosa
the case is susceptible of dismissal for lack of cause of action. Section 4. Duty of the sheriff. — Upon receiving such order, the
sheriff must serve a copy thereof on the adverse party, together
In Paat v. Court of Appeals, where, as in the case at bar, the trial with a copy of the application, affidavit and bond, and must
court issued a writ of replevin against the DENR, thus allowing forthwith take the property, if it be in the possession of the
the claimant to obtain possession of the conveyance used in adverse party, or his agent, and retain it in his custody. If the
transporting undocumented forest products. 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 The 5-day period within which the sufficiency of the replevin
keep it in a secure place and shall be responsible for its delivery bond might be objected to or the return of the property seized
to the party entitled thereto upon receiving his fees and expired without any person objecting to the bond or seeking the
necessary expenses for taking and keeping the same. (4a) return of the bottles, instead an individual identifying himself as
"Tee Chin Ho" alleged that it was from him, Tee Chin Ho, and not
from Te Tien Ho, that the bottles in question had been taken by
Duty of the Sheriff Sheriff Ruefa, and it was taken from a different numbered address
To take physical custody of the property subject of the writ of on the same street.
replevin and keep said property until it is delivered to the party
praying for the same. The sheriff delivered the bottles to La Tondena, however, a TRO
was issued to maintain the status quo and prevent La Tondena
You connect Section 4 to Section 5. These two are interconnected. from seizing bottles.
Section 5. Return of property. — If the adverse party objects to La Tondena reiterated its position that Te Tien Ho and Tee Chin
the sufficiency of the applicant's bond, or of the surety or sureties Ho were one and the same person.
thereon, he cannot immediately require the return of the
property, but if he does not so object, he may, at any time before Judge ruled in favor of Tee Chin Ho, issuing writs of preliminary
the delivery of the property to the applicant, require the return mandatory injunction and preliminary prohibitory injunction,
thereof, by filing with the court where the action is pending a stating:
bond executed to the applicant, in double the value of the
property as stated in the applicant's affidavit for the delivery a. that the seizure authorized by the Court's writ of replevin is
thereof to the applicant, if such delivery be adjudged, and for the only against the person whose name and address is
payment of such sum, to him as may be recovered against the pleaded in the complaint namely TE TIEN HO at No. 1005
adverse party, and by serving a copy of such bond on the Estrada St., Singalong, Manila
applicant. (5a)
b. the two truckloads empty bottles seized by the Manila
Remedies of Party Against Whom Writ is Issued Police and by the Sheriff of Manila from intervenor Tee Chin
These remedies are in the alternative. Ho, is improper and unlawful” and “ordering plaintiff La
Tondeña, its agents, duly authorized representatives or
First Remedy: To object to the sufficiency of the applicant's bond. other persons acting for and in its behalf to return and
If the adverse party avails of this remedy, he cannot require the restore unto intervenor Tee Chin Ho at his address.
return of the property.
Issue: Whether Judge Santillan violated the rule that the
Why? The leading case there is La Tondena Distillers v. CA 209 SCRA disposition of a property seized under a replevin order upon the
553 and the case of Aravez Industries v. CA 216 SCRA 602. This is defendant shall be done only within 5 days from date of seizure?
because if you question the sufficiency of the applicant's bond, it is Yes!
tantamount to saying that the replevin bond is void. That is why you
cannot require the return of the property. Held: A defendant or other party in a replevin proceeding against
whom a writ of seizure has the following alternative remedies set
forth in Section 5, Rule 60 of the Rules of Court.
La Tondeña Distillers, Inc. vs. Court of Appeals
G.R. No. 88938 June 8, 1992
(See Section 5)
Facts: La Tondeña prayed to the RTC to “issue an order directing

The defendant may avail of these alternative options only within
the Sheriff or other proper officer to take into his custody all the
five (5) days after the taking of the property by the officer. This
350 bottles in the possession of Te Tien Ho and to dispose of the
was made plain albeit impliedly by Section 6 of the same Rule.
same in accordance with the rules of court.
(See Section 6)
Judge issued the writ of delivery prayed for upon La Tondeña's
posting of a bond in the amount of P40K.
Thus, if a defendant in a replevin action wishes to have the
property taken by the sheriff restored to him, he should within
In implementation of the writ, Deputy Sheriff Regio Ruefa seized
five days from such taking,
20,250 bottles. The sheriff Mr. Ruefa executed a handwritten
1. post a counter-bond in double the value of said property, and
"Receipt" and among others, was signed by Tee Chin Ho as
2. serve plaintiff with a copy thereof both requirements — as
witness.
well as compliance therewith within the five-day period
mentioned — being mandatory.
Sheriff Ruefa's return attests that prior to seizing the bottles, he
served summons, copy of the complaint and its annexes, copy of
Alternatively, "the defendant may object to the sufficiency of the
the bond, and the writ of seizure personally on one “Te Tien Ho”
plaintiff's bond, or of the surety or sureties thereon;" but if he
(it was La Tondena’s position the Te Tien Ho and Tee Chin Ho
does so, "he cannot require the return of the property" by
were one and the same person).
posting a counter-bond pursuant to Sections 5 and 6.
In other words, the law does not allow the defendant to file a Second Remedy: You put up a counterbond. You file a
motion to dissolve or discharge the writ of seizure (or delivery) counterbond double the value of the property.
— on the ground of insufficiency of the complaint or of the
grounds relied upon therefor, as in proceedings on preliminary If you put up a counterbond or redelivery bond, you are entitled to
attachment or injunction and thereby put at issue the matter of the return of the property seized pursuant to the writ of replevin.
the title or right, of possession over the specific chattel being
replevied, the policy apparently being that said matter should be Note: It now differs here; if you file a counterbond you can apply for
ventilated and determined only at the trial on the merits. the return of the property. That’s the two main distinctions between
the two remedies.
On the other hand, a stranger to the action, i.e., a person not a
party to the action, or as the law puts it, "any other person than When can you avail of this?
the defendant or his agent," whose property is seized pursuant The following are the requisites:
to the writ of delivery, is accorded the remedy known as terceria, 1. The defendant posts a redelivery bond executed to the
a third party claim. plaintiff in an amount double the value of the property;
2. The defendant should serve the plaintiff a copy thereof;
(See Section 7) 3. It should be done within 5 days from the taking; and
4. The bond should be sufficient.
The remedy is identical to that granted to strangers in a
proceeding on preliminary attachment or execution of Memorize! You can avail of this remedy before the delivery of the
judgments. In lieu of, or in addition to the filing of a terceria, the property to the applicant. Very important provision.
third party may, as Section 7 points out, vindicate "his claim to
the property by any proper action." This effort at vindication may Going back to Section 4, it provides that the duty of the sheriff is to
take the form of a separate action for recovery of the property, take physical custody of the property subject of the writ of replevin.
or intervention in the replevin action itself. So take note, he has to keep the property and deliver the same
entitled thereto within 5 days from the taking of the property.
It was thus imperative for the Trial Judge, before ultimately
resolving the motion for leave to intervene as party defendant of Why 5 days? Why can’t it be automatically delivered to the party
the person identifying himself as "Tee Chin Ho," to determine the who prayed for the writ of replevin?
precise status of said "Tee Chin Ho:" whether he was indeed a This is in order to give the defendant the chance to object to the
stranger to the action, as he claims, and could therefore avail of sufficiency of the bond or post a redelivery bond.
the remedy of intervention as a party defendant, or he was in
truth a proper party defendant, who had been mistakenly and Relating this 5-day period to the 2nd remedy, given to the adverse
inadvertently referred to as "Te Tien Ho", and who therefore only party. If the adverse party files a counterbond, he is entitled to the
had the alternative remedies aforementioned of either (a) return of the property subject of the writ. You file that counterbond
objecting to the replevin bond or the surety or sureties thereof within 5 days from the taking. That is why the sheriff has 5 days.
or (b) posting a counter-bond to compel return of the property.
Section 6. Disposition of property by sheriff. — If within five
There were thus circumstances of record that tended to show (5) days after the taking of the property by the sheriff, the adverse
that La Tondeña's proffered thesis was not entirely far-fetched. party does not object to the sufficiency of the bond, or of the
That the real target of its replevin suit was a junk dealer at Estrada surety or sureties thereon; or if the adverse party so objects and
Street, Singalong, Manila, who was in unlawful possession of a the court affirms its approval of the applicant's bond or approves
large number of its empty bottles, whose name and address had a new bond, or if the adverse party requires the return of the
been mistakenly stated in the original complaint but could property but his bond is objected to and found insufficient and
nonetheless be ascertained. he does not forthwith file an approved bond, the property shall
be delivered to the applicant. If for any reason the property is not
At the very least, therefore, it was a matter of preferential priority delivered to the applicant, the sheriff must return it to the
for the Judge to determine whether "Tee Chin Ho" is in fact "Te adverse party. (6a)
Tien Ho," and enable her to know in turn, whether or not the
remedy of intervention was proper in the premises, instead of Sec. 7. Proceedings where property claimed by third person.
that provided in Section 5 of Rule 60. – If the property taken is claimed by any third person other than
the party against whom the writ of replevin had been issued or
In other words, unless there were a prior determination of his agent, and such person makes an affidavit of his title thereto,
whether or not "Tee Chin Ho" was a proper party defendant or a or right to the possession thereof, stating the grounds therefor,
stranger to the action, the judge was in no position to adjudge and serves such affidavit upon the sheriff while the latter has
that this intervention as party defendant was correct. But this is possession of the property and a copy thereof upon the
what the Judge did. applicant, the sheriff shall not be bound to keep the property
under replevin or deliver it to the applicant unless the applicant
Without first making that prior determination, she proceeded to or his agent, on demand of said sheriff shall file a bond approved
pass upon the motion for intervention; she just simply assumed by the court to indemnify the third-party claimant in a sum not
and declared that Tee Chin Ho was not Te Tien Ho. She thus less than the value of the property under replevin as provided in
appears to have acted without foundation, rashly, whimsically, section 2 hereof. In case of disagreement as to such value, the
oppressively. court shall determine the same. No claim for damages for the
taking or keeping of the property may be enforced against the Cross reference to Section 20, Rule 57. You claim for damages on
bond unless the action therefor is filed within one hundred the bond, which was issued by the court. You do that in the same
twenty (120) days from the date of the filing of the bond. case. You cannot institute a separate action for recovery of damages
on the bond. Please take note of that section 10.
The sheriff shall not be liable for damages, for the taking or
keeping of such property, to any such third-party claimant if such It’s jurisprudence time!
bond shall be filed. Nothing herein contained shall prevent such
claimant or any third person from vindicating his claim to the Thomas Yang v. Judge Valdez
property, or prevent the applicant from claiming damages
G.R. No. 73317 August 31, 1989
against a third-party claimant who filed a frivolous or plainly
spurious claim, in the same or a separate action.
The applicant for a writ of replevin need not be the owner for it
is enough that he has a right to possess it.
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
Facts: Spouses Ricardo and Milagros Morante brought an action
bond shall not be required, and in case the sheriff is sued for
in the RTC against Thomas Yang and Manuel Yaphockun. They
damages as a result of the replevin, he shall be represented by
alleged that they had actual use and possession of the two (2)
the Solicitor General, and if held liable therefor, the actual
cargo trucks from 1982-1984. However, the trucks were
damages adjudged by the court shall be paid by the National
registered in the name of Thomas Yang who was the Treasurer in
Treasurer out of the funds to be appropriated for the purpose.
the spouses’ business.
Section 7 is similar with the remedy of terceria under Section 16, Spouses Morante then applied for a writ of replevin and put up
Rule 39 and Section 14, of Rule 57. Self-explanatory provision. The a bond of P560K to recover the trucks. The judge issued an order
third party simply has to execute an affidavit. of seizure directing the Provincial Sheriff to take immediate
possession and custody of the vehicles involved. The Sheriff
Section 8. Return of papers. – The sheriff must file the order, carried out the order.
with his proceedings indorsed thereon, with the court within ten
(10) days after taking the property mentioned therein. Then, Manuel Yaphockun filed a motion seeking repossession of
the cargo trucks, and posted counter-bond of P560K executed
Section 9. Judgment. – After trial of the issues, the court shall by himself and one Narciso Mirabueno. The judge promptly
determine who has the right to the possession to and the value required the Spouses to comment on the counter-bond. As a
of the property and shall render judgment in the alternative for response, the spouses amended their complaint and dropped
the delivery thereof to the party entitled to the same, or for its Manuel Yaphockun who no longer had legal personality in the
value in case delivery cannot be made, and also for such damages case while the court ordered for the delivery of the trucks.
as either party may prove, with costs.
Yang moved for an extension of fifteen (15) days within which to
Nature of Judgment in a Replevin Action file an answer to the complaint for replevin. Days later, Yang put
up a counter-bond of P560K which was rejected by the judge for
It’s found in Section 9. The judgment is always in the alternative.
having been filed out of time.
Either the defendant will be ordered to return the personal property
to the plaintiff or to pay for the value.
Yang argues that the judge had committed grave abuse of
discretion amounting to lack or excess of jurisdiction in
Why is it in the alternative?
approving the replevin bond.
In Ago v. Castaneda, it is in the alternative to afford the plaintiff a
measure of relief. Because if the property cannot be returned in
In the SC, Yang also contends that since the spouses are not the
substantially the same condition it is settled that the prevailing party
registered owners of the cargo trucks involved, the writ of
may refuse to take them and instead sue on the redelivery bond or,
replevin should not have been issued.
as in this case, execute on the judgment for value. If the prevailing
party has this right after judgment, it is at once obvious that he must
Issue: Whether the replevin should have not been issued?
also have the same right when, asking for the delivery pendente
lite of the same property, he afterwards finds them in a substantially
Held: The provisional remedy of replevin is in the nature of a
depredated condition.
possessory action and the applicant who seeks immediate
possession of the property involved need not be holder of the
For all you know, the property is already useless. Also in Section 9,
legal title to the property. It suffices, if at the time he applies for
and also for such damages as either party may prove.
a writ of replevin, he is, in the words of Section 2, Rule 60,
"entitled to the possession thereof."
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.

Pagkalinawan v. Gomez Canoy filed a motion for the dismissal of the complaint and for
the quashal of the writ of replevin. The motion was opposed by
Replevin cannot be availed of if the property is in custodia legis Chua. The motion to dismiss and to quash the writ of replevin
where it is under attachment or was seized under a search was denied.
warrant.
Issue: Whether the replevin was proper? No!
Facts: Dayrit filed a complaint for Replevin in the Court presided
by Judge Gomez, against Pagkalinawan, Supervising Agent-NBI Held: Where personal property is seized under a search warrant
Cebu for the recovery of possession of the car alleging that it is and there is reason to believe that the seizure will not anymore
wrongfully detained by Pagkalinawan. be followed by the filing of a criminal and there are conflicting
claims over the seized property, the proper remedy is the filing
Judge Gomez issued an order directing the Sheriff or any proper of an action for replevin, or an interpleader filed by the
officer of the court, to take the car into his custody and the order Government in the proper court, not necessarily the same one
was implemented by the Clerk of Court by issuing on the same which issued the search warrant.
date a writ of replevin.
However, where there is still a probability that the seizure will be
Pagkalinawan contends that he could not possibly comply with followed by the filing of a criminal action, as in the case at bar
said order to deliver the aforementioned car to the sheriff where the case for carnapping was "dismissed provisionally,
because he was holding the same in 'custodia legis' for the CFI of without prejudice to its reopening once the issue of ownership is
Manila, the court that issued the search warrant under which the resolved in favor of complainant”, or the criminal information has
said car was seized and held in custody. actually been commenced, or filed, and actually prosecuted, and
there are conflicting claims over the property seized, the proper
Judge Gomez issued an order directing Pagkalinawan to remedy is to question the validity of the search warrant in the
immediately comply with the order of the court and to turn over same court which issued it and not in any other branch of the
to the sheriff the car in question upon receipt of a copy of this said court.
order.
Thus, the RTC erred when it ordered the transfer of possession of
Issue: Whether the replevin was proper? No! the property seized to Chua when the latter filed the action for
replevin. It should have dismissed the case since by virtue of the
Held: Replevin cannot be availed of if the property is in custodia "provisional dismissal", of the carnapping case there is still a
legis where it is under attachment or was seized under a search probability that a criminal case would be filed, hence a conflict in
warrant. The remedy for questioning the validity of a search jurisdiction could still arise. The basic principle that a judge who
warrant may be sought in the CFI that issued it, not in the gala of presides in one court cannot annul or modify the orders issued
another Judge, and as admitted in the dissenting opinion of by another branch of the same court because they are co-equal
Justice Laurel, not through replevin. and independent bodies acting coordinately, must always be
adhered to.
Exceptions:
a. When the seizure is illegal; (Bagalihog v. Fernandez)
b. Where there is reason to believe that the seizure will For reiteration on the second remedy, when the defendant files a
no longer be followed by the filing of the criminal counterbond:
action in court, and there are conflicting claims over
the seized property. (Chua v. Court of Appeals) The defendant is entitled to the return of the property taken
under a writ of replevin if the following requisites are met:
Romeo Chua v. Court of Appeals 1. Defendant posts a redelivery bond executed to the plaintiff in
G.R. No. 79021 May 17, 1993 an amount double the value of the property;
2. Defendant serves plaintiff with a copy thereof;
Facts: Judge Francisco, after examining Canoy and two (2) other 3. It is done within five (5) days from taking; (La Tondena
witnesses, issued a search warrant directing the immediate Distillers, Inc. v. Court of Appeals)
search of the premised of RR Construction and the seizure of an 4. Bond is sufficient.
Isuzu dump truck. Canoy then seized the vehicle and took
custody of it. “If you question the sufficiency of the applicant’s bond, you cannot
require for the return of the property. Since it is tantamount to
A civil action for Replevin/Sum of Money for the recovery of saying that the replevin bond is void.” (La Tondena Distillers vs. CA;
possession of the same Isuzu dump truck was filed by Chua Aravest Industries vs. CA)
against Canoy and one "John Doe" in the RTC presided by Judge
Cañares.
Judge Cañares directed the issuance of a writ of replevin upon

the posting of a bond. The writ of replevin was also issued on the
same date, and the subject vehicle was seized by Deputy Sheriff
Fuentes.

August 18, 2020 – Mikel H. Delgado Reyes v. Ines-Luciano
88 SCRA 803
RULE 61 SUPPORT PENDENTE LITE Mere affidavits may satisfy the court to pass upon the application
for support pendente lite. It is enough that the facts be
established by affidavits or other documentary evidence
Note: Judge did not hold a lecture for this Rule. Annotations were appearing in the record.
derived from the slides and other reviewers.
No Bond Requirement
Support Pendente Lite All provisional remedies, there is a bond requirement except support
Support pendente lite may be granted by the court in two (2) pendente lite.
instances:
How about issuance of summons? Should the court acquire
1. Family case for support, legal separation between spouses jurisdiction over the person of the defendant?
or nullity of marriage (Article 203, Family Code) Yes. A copy of the application and all supporting documents shall
Article 203. The obligation to give support shall be demandable from be served upon.
the time the person who has a right to receive the same needs it for
maintenance, but it shall not be paid except from the date of judicial or Section 2. Comment. — A copy of the application and all
extrajudicial demand. supporting documents shall be served upon the adverse party,
who shall have five (5) days to comment thereon unless a
Support pendente lite may be claimed in accordance with the Rules of different period is fixed by the court upon his motion. The
Court. comment shall be verified and shall be accompanied by
affidavits, depositions or other authentic documents in support
Payment shall be made within the first five days of each corresponding
thereof. (2a, 3a)
month or when the recipient dies, his heirs shall not be obliged to return
what he has received in advance. (298a)
Can this issue ex parte?
No. Hearing is necessary to determine the capacity of the giver and
2. Criminal action where civil liability includes support for the
offspring as a consequence of the crime (See Section 6) the needs of the applying for support pendente lite. Further, it is to
give the other party a chance to defend himself.
Nature of Proceedings in the Grant of Support Pendente Lite
If it issues ex parte, file a petition for certiorari citing grave abuse
Proceedings for support pendente lite in family cases are summary
of discretion.
in nature. Family Courts may issue orders directing support
pendente lite upon either an application by a party at any stage of
the proceedings or motu proprio. These orders may be enforced Section 3. Hearing. — After the comment is filed, or after the
immediately. expiration of the period for its filing, the application shall be set
for hearing not more than three (3) days thereafter. The facts in
issue shall be proved in the same manner as is provided for
Section 1. Application. — At the commencement of the proper
evidence on motions. (4a)
action or proceeding, or at any time prior to the judgment or final
order, a verified application for support pendente lite may be
filed by any party stating the grounds for the claim and the Section 4. Order. — The court shall determine provisionally the
financial conditions of both parties, and accompanied by pertinent facts, and shall render such orders as justice and equity
affidavits, depositions or other authentic documents in support may require, having the regard to the probable outcome of the
thereof. (1a) case and such other circumstances as may aid in the proper
resolution of the question involved. If the application is granted,
Procedure the court shall fix the amount of money to be provisionally paid
or such other forms of support as should be provided, taking into
1. Verified Application
account the necessities of the applicant and the resources or
2. Who May Apply: Any Party
means of the adverse party, and the terms of payment or mode
3. When:
for providing the support. If the application is denied, the
 at the commencement of the proper action or proceeding, principal case shall be tried and decided as early as possible. (5a)
 at any time prior to the judgment or final order.
4. Contents:
Order of Support
a. Grounds for the claim
b. Financial conditions of both parties If the application is granted, the court shall:
c. Affidavits, depositions, or other authentic documents in  fix the amount of money to be provisionally paid or such
support thereof. other forms of support as should be provided,
 taking into account the necessities of the applicant and the
Nature of The Action resources or means of the adverse party, and
It is summary in nature because of the urgency of the situation.  the terms of payment or mode for providing the support.

If the application is denied: Section 6. Support in criminal cases. — In criminal actions
 the principal case shall be tried and decided as early as where the civil liability includes support for the offspring as a
possible. consequence of the crime and the civil aspect thereof has not
been waived, reserved and instituted prior to its filing, the
Principle of Res Judicata or Collateral Estoppel accused may be ordered to provide support pendente lite to the
Do Not Apply in Support Pendente Lite child born to the offended party allegedly because of the crime.
No, a judgment for support does not become final. The right to The application therefor may be filed successively by the
support is of such nature that its allowance is essentially provisional. offended party, her parents, grandparents or guardian and the
State in the corresponding criminal case during its pendency, in
Failure to Comply with the Order of Support accordance with the procedure established under this Rule. (n)
Section 5. Enforcement of order. — If the adverse party fails to Support in Criminal Cases
comply with an order granting support pendente lite, the court Support pendente lite is allowed in criminal actions where the civil
shall, motu proprio or upon motion; issue an order of execution liability includes support for the offspring as a consequence of the
against him, without prejudice to his liability for contempt. (6a) crime and the civil aspect thereof has not been waived, reserved or
instituted prior to its filing.
When the person ordered to give support pendente lite refuses
or fails to do so, any third person who furnished that support to Child support may be ordered by a Family Court from either or both
the applicant may, after due notice and hearing in the same case parents in such amount as may be necessary for the support,
obtain a writ of execution to enforce his right of reimbursement maintenance and education of the child, taking into consideration
against the person ordered to provide such support. (h) the following:
1. Financial resources of the custodial and non-custodial
Judgments in actions for support shall be enforceable after their parent;
rendition and shall not be stayed by an appeal taken therefrom, 2. The physical and emotional health of the child;
unless otherwise ordered by the trial court. (Rule 39, Sec. 4) 3. The child’s special needs and aptitudes; and,
4. The standard of living to which the child has become
GR: Judgment in actions for support shall not be stayed by an appeal accustomed to.
taken therefrom.
Spousal support may be ordered by a Family Court during the
pendency of a petition for declaration of nullity of marriage or a
XPN: Unless otherwise ordered by the trial court.
petition for legal separation, upon showing that:
1. there is no adequate provision in a written agreement
Remedies of Party Erroneously Ordered to Give Support
between the spouses;
 To apply for an order for reimbursement by the recipient
2. the spouse seeking support is the custodian of a child
on motion in the trial court, in the same case, unless such
whose circumstances make it appropriate for that spouse
restitution is already included in the judgment.
not to seek employment, or
 File a separate action for reimbursement against the person
3. such other circumstances that may merit spousal support.
legally obliged to give support.
(AM 02-11-12, Rule on Provisional Orders in Family Cases, Sec. 3.)
Lam v. Chua Remedy Against Order Denying Support Pendente Lite

426 SCRA 29
File a motion for reconsideration. If it is denied, file a petition for
certiorari under Rule 65 because it is merely an interlocutory order.
The Supreme Court ruled that the amount of support is by no
means permanent. Judgment for support does not become final. If the application is granted, what is the remedy of the other
party?
The right to support is of such nature that its allowance is If the application is granted, the order is immediately executory.
essentially provisional; for during the entire period that a needy
party is entitled to support, his or her alimony may be modified Possible Defenses Against Support Pendente Lite
or altered, in accordance with his increased or decreased needs,
and with the means of the giver. It cannot be regarded as subject 1. Denial of Paternity
to final determination. But this will not be a full-blown trial. If the issue of paternity
of the common child is put in issue, the court cannot grant
Advincula v. Advincula support pendente lite. Otherwise, the judge will act in grave
abuse of discretion.
Another action for support could be filed again by the same
plaintiff notwithstanding the fact that the previous case for 2. Non-Existence of Marriage
support filed against the same defendant was dismissed. If the answer of the defendant denies the marriage between
him and plaintiff, thus, putting in issue the very status of the
plaintiff, support pendente lite should not be allowed until
the marriage is established as a fact.

3. Death of Recipient In the latter case the legal evidence raises a presumption of law,
while in the former there is no presumption, there is nothing but
Section 7. Restitution. — When the judgment or final order of a mere allegation, a fact in issue, and a simple fact in issue must
the court finds that the person who has been providing support not be confounded with an established right recognized by a
pendente lite is not liable therefor, it shall order the recipient final judgment. The civil status of sonship being denied and this
thereof to return to the former the amounts already paid with civil status, from which the right to support is derived, being in
legal interest from the dates of actual payment, without prejudice issue, it is apparent that no effect can be given to such a claim
to the right of the recipient to obtain reimbursement in a until an authoritative declaration has been made as to the
separate action from the person legally obliged to give the existence of the cause. It is also evident that there is a
support. Should the recipient fail to reimburse said amounts, the substantial difference between the capacity of a person after the
person who provided the same may likewise seek reimbursement rendition of a final judgment in which that person is declared to
thereof in a separate action from the person legally obliged to be in possession of the status of a son and his capacity prior to
give such support. (n) such time when nothing exists other than his suit or claim to be
declared in possession of such a status.
Are you ready for jurisprudence? Let’s go!
The Civil Code grants the right of support to a son. This status
not appearing by a final judgment, the judge was without
Francisco v. Zandueta
jurisdiction to order the Francisco to pay Eugenio the sum of P30,
61 Phil. 752 (1929)
or any other amount as monthly support pendente lite.
Where the right to support is put in issue by the pleadings or the

San Juan v. Valenzuela
fact from which the right to support arises is in controversy or
has not been established, the court cannot grant support G.R. No. 59906, October 23, 1982, 117 SCRA 926.
pendente lite.
The amount of support pendente lite is not final in character in
the sense that it can be the subject of modification depending
Facts: Eugenio, aged two years, through his natural mother and
guardian ad litem, Rosario Gomez, instituted an action for on the changing conditions affecting the ability of the obligor to
pay the amount fixed for support.
support against Francisco. In that case it is alleged that Eugenio
is the acknowledged son of Luis Francisco and as such is entitled
Facts: The marriage between Mejia and San Juan was declared
to support.
null and void by the on the ground of a prior and subsisting
marriage between San Juan and one Isabel Bandin. Mejia
Francisco, answered by a general denial of each and every
instituted the instance action against San Juan seeking support
material allegation contained in the complaint and as a special
for herself and her two minor children.
defense alleged that he never acknowledged and could not have
acknowledged that he never acknowledged and could not have
After issues were joined, the judge, on motion of Mejia, entered
acknowledged the Eugenio as his son; that he was not present at
the challenged order granting support pendente lite and the
the baptism of the Eugenio and that he was married at the time
same is fixed at P2,500.00 a month commencing from January
it is alleged that the Eugenio was born.
1, 1982 to be paid to the plaintiff on or the 5th day of each month
Judge issued the order of support. Francisco moved for the until this case is finally adjudicated. This is without prejudice to
any judgment for support in arrears due the plaintiff if the
reconsideration of that order on the ground that it was issued in
excess of jurisdiction in view of the fact that the civil status of the evidence will so warrant after trial.
Eugenio was placed in issue by the pleadings; that the Eugenio has
no right to monthly support from the defendant until his status San Juan's MR of the order on the grounds that
(1) the amount is grossly disproportionate to San Juan's
as a child of the latter is finally determined in his favor and that
as the guardian ad litem of the Eugenio admits his lack of means means;
(2) San Juan is not obliged to support Mejia as their marriage
to defray even the ordinary expenses of existence it would be
is null and void; and
impossible for the defendant to recover whatever amount he
(3) no evidence was presented as to San Juan's present
may have advanced to Eugenio as support pendente lite, should
resources, was denied.
it finally be decided that he is not the father of the Eugenio.
Held: Pending resolution of this petition, San Juan filed a

Issue: Whether Eugenio was entitled to support?
manifestation proposing to settle his obligation of P15K,
representing the amount of support which accrued from January
Held: The action for support is brought by a minor, through his
to June, 1982, and to pay the same in three equal installments.
guardian ad litem, who alleges that he is the son of the Francisco;
This proposal was approved by the court. In the same
therefore it is necessary for him to prove his civil status as such
manifestation, San Juan sought the reduction of the amount of
son. His alleged civil status being in litigation, it is evident that
support pendente lite to P1K a month on the ground that the
nothing can be taken for granted upon the point in issue. There
is no law or reason which authorizes the granting of support to a sum of P2.5K previously fixed by judge is now beyond his means
to pay.
person who claims to be a son in the same manner as to a person
who establishes by legal proof that he is such son.

Unquestionably, San Juan's willingness to pay the amount of support pendente lite. Adultery is a good defense and if properly
support pendente lite in his manifestation, and the approval proved and sustained will defeat the action.
thereof by the Judge have rendered this petition moot and
academic. In the instant case, at the hearing of the application for support
pendente lite, Manuel did not present any evidence to prove the
As to the factual issue of whether the amount of P2.5K previously allegation that his wife had committed adultery with any person.
fixed by judge is now beyond the means of San Juan, the same
should be resolved on the basis of the evidence to be presented Manuel has still the opportunity to adduce evidence on the
at the proper hearing. The order fixing the amount of support alleged adultery of his wife when the action for legal separation
pendente lite is not final in character in the sense that it can is heard on the merits. It is to be noted however, that as pointed
be the subject of modification, depending on the changing out by the respondents in their comment, the "private
conditions affecting the ability of the obligor to pay the respondent was not asking support to be taken from Manuel's
amount fixed for support. personal funds or wherewithal, but from the conjugal property—
which, was her documentary evidence". It is, therefore, doubtful
Principle: If an application for support pendente lite is denied, the whether adultery will affect her right to alimony pendente lite. In
remedy is certiorari. Quintana vs. Lerma, the action for support was based on the
obligation of the husband to support his wife.
Reyes v. Ines-Luciano
G.R. No. 48219, February 28, 1979, 88 SCRA 803 The contention of Manuel that the order of the Judge granting
the private respondent support pendente lite in the amount of
Mere affidavits or other documents appearing in the record are P4K a month is not supported by the allegations of the complaint
sufficient basis for the court to determine amount of support for legal separation and by competent evidence has no merit.
pendente lite.
The complaint or legal separation contains allegations showing
Facts: Celia filed a complaint against her husband, Manuel, for that on at least two occasions Manuel, had made attempts to kill
legal separation on the ground that the Manuel had attempted Celia.
to kill the Celia. The allegations of the complaint are:
In fixing the amount of monthly support pendente lite of P4K, the
“He pummeled her with fist blows that floored her, then held her judge did not act capriciously and whimsically. When she
head and, with intent to kill, bumped it several times against the originally fixed the amount of P5K a month, the Judge considered
cement floor. When she ran upstairs to her father for protection, he the following:
pushed her at the stairway of 13 flights and she fell sliding to the
ground floor. Determined to finish her off, he again gave her a strong On record for Celia's cause that she is presently unemployed and
swing at her abdomen which floored her half unconscious. Were it without funds, thus, she is being supported by her father with
not for Celia's father, he would have succeeded killing her” whom she resides: that Manuel had been maltreating her and
“Although on May 11 previous she ceased holding office with Manuel tried to kill her; that all their conjugal properties are in the
at Bel-Air Apartments elsewhere adverted to, she went thereto to get possession of Manuel who is also president, Manager and
her overnight bag. Upon seeing her, Manuel yelled at her to get out
Treasurer of their corporation namely.
of the office. When he did not mind him, he suddenly doused her
with a glass of grape juice, kicked her several times that landed at her
The amount of support pendente lite was reduced to P4K
back and nape, and was going to hit her with a steel tray as her driver,
Ricardo, came due to her screams for help. For fear of further injury
inasmuch as the children are in the custody of Manuel and are
and for life, she rushed to Precinct 5 Police, for assistance and being supported by him.
protection”
It is thus seen that the judge acted with due deliberation before
Celia asked for support pendente lite for her and her three fixing the amount of support pendente lite in the amount of P4K
children. Manuel opposed the application for support pendente a month.
lite on the ground that his wife had committed adultery with her
physician. In determining the amount to be awarded as support pendente
lite it is not necessary to go fully into the merits of the case,
The Judge issued an order granting Celia's prayer for alimony it being sufficient that the court ascertain the kind and amount
pendente lite in the amount of P5K a month. Manuel filed a MR of evidence which it may deem sufficient to enable it to justly
reiterating that his wife is not entitled to support during the resolve the application, one way or the other, in view of the
pendency of the case, and, alleging that even if she entitled, the merely provisional character of the resolution to be entered.
amount awarded was excessive. The Judge reduced the amount Mere affidavits may satisfy the court to pass upon the
from P5k to P4,400 a month. application for support pendente lite. It is enough that the
facts be established by affidavits or other documentary evidence
Issue: Whether Celia was entitled to support? Yes! appearing in the record.
Held: It is true that the adultery of the wife is a defense in an Celia submitted documents showing that the corporations
action for support however, the alleged adultery of wife must be controlled by the Manuel have entered into multi-million
established by competent evidence. The allegation that the wife contracts in projects of the Ministry of Public Highways.
has committed adultery will not bar her from the right receive
Considering the high cost of living due to inflation and the

financial ability of Manuel as shown by the documents of record,
the amount of P4K a month granted by the Judge as alimony
pendente lite to Celia is not excessive. There is no showing that
the Judge has committed a grave abuse of discretion in granting
said support.
Provisional Remedies in Criminal Actions

The provisional remedies in civil actions, insofar as they are
applicable, may be availed of in connection with the civil action
deemed instituted with the criminal action (Rule 111).
EX: Attachment Grounds

 Accused is about to abscond the Philippines;
 When the criminal action is based on money or property
embezzled or fraudulently misapplied or converted to the
use of the accused who is a public officer, officer of a
corporation, attorney, broker, agent or clerk in the course
of his employment;
 When the accused has concealed, removed of his property
or is about to do so
 When the accused resides outside of the Philippines
End of Provisional Remedies
Gutay-gutay na'ng katawan ko,

pati kaluluwa ko gutay-gutay na rin.
- Pasan Ko Ang Daigdig


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ATENEO DE DAVAO UNIVERSITY

PROVISIONAL REMEDIES &

ACEVEDO, VAL JOSEPH CONCEPCION, ELAIZZA

B. Provisional Remedies under the Rule on Corporate Reyes v. Lim

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

(b) In an action for money or property embezzled or

(c) In an action to recover the possession of property unjustly

(d) In an action against a party who has been guilty of a fraud

(e) In an action against a party who has removed or disposed

(f) In an action against a party who does

Writ of Preliminary Attachment

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

person of the defendant should be acquired in order to validly

Santos v. Aquino, Jr. Types of Attachment

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

What are the properties exempt from execution?

(a) Real property, or growing crops thereon, or any interest therein,

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

Biaco v Philippine Country Side Rural Bank

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

In connection to Section 12 and 13, what if the ground for the

DEFINITION OF PRELIMINARY INJUCTION

The law provides that a preliminary injunction is an order granted

FINAL INJUCTION is granted after the trial or the action perpetually

Nature of Preliminary Injunction

Facts: Petitioners filed before the court a petition for declaratory

A preliminary injunction does not serve as a final

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

Why are judges cautioned from issuing writs of preliminary

In view of this intervening development, the issuance of the

Clearly, the government, through the NHA will be prejudiced by

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

Issue: Whether the Injunction was proper? Yes! a. Labor Cases

 The National Labor Relations Commission, which shall

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

The government, however, is bound by basic principles of

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

MII moved for the issuance of an Alias Writ of Execution praying

Facts: Petitioners were arrested following the forcible and violent

However, despite service of the order of release, Brocka, et al.

"A communication made in good faith upon any subject matter

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

The issuance of a writ of preliminary injunction in the present

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

What are other principal actions? Is it limited to what is allowed

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

The efficiency of public administration should not be impaired

The judge committed a flagrant violation of the rules when he

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

FLRP, as intervenors, then filed a motion to declare without force

Temporary Restraining Order; Procedure

Note: Refer to chart.

Section 8. Judgment to include damages against party and

Bataclan filed a petition for certiorari with injunction before the

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

If the court issues a WPI enjoining the implementation or execution

As already cited earlier, Injunction is considered as a strong arm of

Acevedo, Andamon, Avisado, Concepcion, Delgado, Igbalic,

A clerk of court should not be appointed as receiver as he is already