PROVISIONAL REMEDIES

 
 
 
The Kind Of Provisional Remedies
1. Preliminary Attachment
2. Preliminary Injunction
3. Receivership
4. Replevin
5. Support pendente lite
 
       are writ and processes available during the pendency of an action to preserve and protect certain rights and interests
pending the result of the final judgment in the case.
 
 
  When may it be How much should
availed? be the Bond
posted?
Preliminary May be sought at The amount of
Attachment any stage of the bond is addressed
action but before to the sound
final judgment. discretion of the
court.
Preliminary -do- -do-
Injunction
Receivership Maybe filed at any Bond is mandatory
  stage of the action and the court fixes
and even after it.
final judgment.
Replevin Must be file before The bond is
  the defendant filed double the value of
his answer. the personal
property seized.
Support Maybe sought at No bond is
pendente lite any stage of the generally required.
action and even
for the first time on
appeal.
 

RULE 57

PRELIMINARY ATTACHMENT
 
What Are Its Purposes?
1. To seize the property of the debtor in advance of the final judgment and to hold it for purposes of satisfying the said
judgment
2. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in
instances where summons cannot be effected.
 
What Are The Requirements?
1. Affidavit – which must contain all the allegations required and the circumstances on why it should be granted.
 2. Bond – it is to answer for the damages and costs, which may be adjudged, to the adverse party.
       the defendant can file a counter bond at the courts discretion but the counter bond must not be lower than the
bond filed by the petitioner. Its purpose is to satisfy the judgment.
Note: No notice to the adverse party or hearing of the application is required.
 
When Shall It Be Discharged?
1. The debtor has posted a counter bond.
2. The attachment was improperly issued, i.e., when there is no ground for attachment, or the affidavit and/or bond filed
are defective or insufficient.
3. The attachment is excessive.
4. The property attached is exempt from execution thus, also exempt from attachment.
5. The judgment is against the attaching party.
 
 

RULE 58

PRELIMINARY INJUNCTION
 
What is Preliminary Injunction?
      A judicial writ, process or proceedings whereby a party is ordered to do or refrain from doing a particular act.
      Prior notice is indispensable for the issuance of a writ of Preliminary Injunction(PI) and a Temporary Restraining
Order(TRO).
o        Exception:
       If the matter is of extreme urgency and the applicant may suffer injustice and injury, the court may issue an ex
parte TRO effective for only seventy-two(72) hours from issuance, renewable after summary hearing for a period
not exceeding twenty(20) hours which includes the original 72 hours if previously granted.
 
The Kinds Of Injunction
a.        Preventive or prohibitive injunction requires a person to refrain from doing a particular act.
b.        Mandatory injunction requires the performance of a particular act.
 
What Is Its Purpose?
- to preserve the status quo, i.e., the last actual, peaceable, uncontested status which precedes the pending controversy.
 

RULE 59

RECEIVERSHIP
 
Who is a Receiver?
- person appointed by the court in behalf of all the parties  to an action for the purpose of preserving the property involved in the
suit and to protect the rights of all the parties under the direction of the court.
- as a rule, a party to the case nor the clerk of court should not be appointed.
 
Note: no action maybe filed against the receiver without leave of court.
 
Note: Ex parte appointment of a receiver is no longer authorized, a hearing must be conducted for that purpose.
 
What Are The Requirements?
1. Affidavit – that the applicant has interest in the property that is the subject of the litigation and there is an inevitable
damage to it thus, the court must appoint a receiver.
2. Bond – in the amount fixed by the court, to cover all the damages by reason of the appointment of a receiver. The court
may require additional  bond as further security.
 
 

RULE 60

REPLEVIN
 
What Is Its Purpose?
- to recover the possession of personal property.
 
What Are The Requirements?
1. Affidavit – must allege that the applicant is the owner or entitled to possess the property, the description of the
property, the actual ‘market’ value of the property, and the person and why he withheld the property from the applicant.
2. Bond – the amount to be posted must double the  value of the property as stated in the affidavit.
 
 

RULE 61

SUPPORT PENDENTE LITE

 
What Is Its Purpose?
       To compel adverse party to provide support while action is pending in court.
       No bond is required from the applicant.
       The application must be verified and shall be set for hearing not more than three(3) days from the filing of the petition.
 
 
 
SPECIAL CIVIL ACTION
 
 
RULE 62
INTERPLEADER
 
What is Interpleader?
                   It is a Special Civil Action whereby a person who has property in his possession or an obligation to perform, either
wholly or partially, who claims no interest in the subject, goes to the court and ask that conflicting claimants to that property
or obligation be required to litigate among themselves in order to determine finally who is entitled to the same.
                   E.g. a) a warehouseman, with goods being claimed by 2 or more persons.
b) an insurer, with 2 or more claimants to an insurance proceeds.
 
 
RULE 63
 DECLARATORY RELIEF AND SIMILAR REMEDIES
 
What are the requisites for Declaratory Relief?
1. there is a justiciable controversy.
2. there must be adverse claim between the real parties in interest.
3. the subject matter is a written instrument, (such as a deed, will, contract), statute or a law.
4. the relief sought is to determine the rights and duties under the  written instrument or statute.
5. there must be no breach or violation of the written instrument or statute yet. [Note: The concept of a cause of action as
“an act or omission by which a person violates the rights of another” under ordinary civil action does not apply.]
6. there are no other available or sufficient remedy.
 
Instances When the Court Refuse to Grant Declaratory Relief?
1.        When the decision would not terminate the controversy which gives rise to the action.
 2.        When the declaration is not necessary and proper under the circumstances.
 
When should it not be used?
1.        to be declared as a Filipino citizen.
2.        to solve political question
3.        to determine hereditary rights
4.        to resolve hypothetical or theoretical questions
5.        those involving administrative cases (must first avail of the principle of exhaustion of administrative remedies)
 
Conversion Into Ordinary Action
       If after the filing of the petition but before the rendition of judgment, a breach or violation occurs, then the petition may be
converted into an ordinary action.
 
 
 
RULE 64
 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE COMELEC AND COA
 
Time for Filing the Petition
       Within thirty (30) days from notice of the judgment or final order sought to be reviewed.
       If the motion for reconsideration is denied, the aggrieved party has the remaining period   to file the petition, but not less
than five(5) days in any event, reckoned from notice of denial.
 
Mode of Review
      To be filed exclusively to the Supreme Court.
      Petition for Review under rule 65.
 
[Note: The filing of the petition shall not stay the execution of the judgments or final orders, unless ordered by the Supreme
Court.]
 
 
 
RULE 65
CERTIORARI, PROHIBITION, AND MANDAMUS
 
      CERTIORARI
Requisites:
1.        there must be a controversy
2.        the respondent is a tribunal, board or an officer exercising judicial or quasi-judicial functions [discretionary acts]. 
3.        the respondents acted:
a.        without jurisdiction
b.        in excess of jurisdiction
c.        with grave abuse of discretion amounting to lack or excess of jurisdiction
4.        there must be no appeal or other plain, speedy and adequate remedy.
 
EXCLUSIVE REMEDY OF APPEAL AND CERTIORARI
GENERAL RULE: If after judgment and the petition for certiorari is availed of instead of the remedy of appeal, the certiorari must
fail because it may not be resorted to as a substitute to appeal; in such a case appeal is deemed abandoned.
EXCEPTIONS: Even when appeal is available, a writ for execution may be allowed;
1.        When the appeal does not constitute a speedy and adequate remedy.
2.         When judgment were issued either in excess of or without jurisdiction.
3.        When for certain special considerations as public policy or public welfare.
4.        When the judgment is patently void.
5.        When the decision in the certiorari case will avoid future actions.
 
PROHIBITION
Requisites
1.        there must be a controversy
2.        the respondent is a tribunal, board or an officer exercising judicial, quasi-judicial [discretionary acts] or ministerial
functions.
3.        the respondent acted:
a.        without jurisdiction
b.        in excess of jurisdiction
c.        with grave abuse of discretion amounting  to lack or excess of jurisdiction
4.        there must be no appeal or other plain, speedy and adequate remedy.
 
MANDAMUS
Requisites
1.        there must be a clear legal right or duty.
2.        the act performed must be practical- within the powers of the respondent to perform such if issued and he can comply
with it or else the essence will be defeated.
3.        the respondent must be exercising a ministerial duty.
4.        the duty or act to be performed must be existing – a correlative right will be denied if not performed by the
respondents.
5.        there must be no appeal or other plain, speedy and adequate remedy.
 
NOTE: An ordinary action for certiorari, prohibition and mandamus are independent action thus:
1.        does not  interrupt the course of the principal action.
2.        does not affect the running of the prescriptive period involved in the case.
3.        does not stay the execution of the judgment, unless a TRO or a PI is  issued.
 
EXHAUSTION OF ADMINISTRATIVE REMEDY
GENERAL RULE: a motion for reconsideration is a prerequisite before the filing of a petition for certiorari, prohibition or
mandamus. Its purpose is to give the court a quo the opportunity to correct itself.
EXCEPTIONS:
1.        If the judgment or order is patently void.
2.        If there is extreme urgency.
3.        If the issue has been raised and promptly passed by the court.
4.        If the issue is purely a question of law.
5.        If for public purpose.
 
 
 
RULE 66
QUO WARRANTO
 
What is Quo Warranto?
       It is a special civil action to determine the right to the use or exercise of an office or a franchise, and to oust the holder from
its enjoyment if his claim is not well founded or if he has forfeited his right to enjoy the privilege.
 
Classification of a Quo Warranto proceedings.
1.        Mandatory- brought by the Solicitor General or a public prosecutor when:
a.        directed by the president, and
b.        upon complaint or when he has reason to believe that it can be established by proof.
2.        Discretionary- brought by the Solicitor General or a public prosecutor upon the request a person but there must be:
a.        leave of court, and
b.        indemnity bond
 
NOTE: The period for the filing of Quo Warranto proceedings is within one(1) year from the date the cause of action arose.
 
DISTINCTIONS
QUO WARRANTO MANDAMUS
 1.  There is a usurpation of There is an ousting from
public office by another office by another but does
and assumes office. not assume the office.
   
2.  The right to office of the The right or legal duty is
occupant is not clear so clear, so the purpose of
this right becomes the the action is to enforce the
subject of the action. right.
 
 
QUO WARRANTO ELECTION CONTEST
1.  As to the basis:  
The occupant of the office The person holding the
is disqualified from holding office is not entitled to it
the office because of because of irregularity in
ineligibility or disloyalty to the conduct of election.
the republic.  
   
2.  As to the effect:  
If the petitioner succeeds, If the protestant succeeds,
the respondent will be he will assume office if he
ousted and the petitioner had obtained a plurality of
will assume the office. the valid vote.
 
 
 
 
RULE 67
EXPROPRIATION
 
       EMINENT DOMAIN is the right of the state to acquire private property for public use upon payment of just compensation.
       EXPROPRIATION is the procedure to be observed in the exercise of the right of eminent domain in instances such as:
1.        When the owner refuses to sell his property.
2.        When he agrees to sell but an agreement as to the price cannot be reached.
NOTE: All properties can be expropriated except money and chooses in action.
 
Two Stages in Expropriation
1.        Determine first if the property taken is for public purpose.
2.        If it was determined that it is for public purpose, resolve the issue on the amount to be paid or the just compensation
 
Just Compensation is determined at the time of the taking of the property or at the filing of the complaint which ever comes first.
It is the fair and full equivalent for the loss sustained by the defendant.
 
NOTE: The conflict in the payment of just compensation or an appeal does not delay the right of the plaintiff to enter into the
property and appropriate the same for public use.
 
 
 
RULE 68
FORECLOSURE OF REAL ESTATE MARTGAGE
 
Parties:
1.        mortgagee  and mortgagor
2.        successor in interest
3.        junior encumbrancer/s
 
Nature and purpose:
         The remedy used for the satisfaction of any monetary obligation, which a person owes to another, by proceeding against
the property used to secure the obligation.
         It purpose is to cut off the rights of the owner of the property mortgaged used to secure the obligation and all rights
acquired thereto.
 
NOTE:
       Within the one(1) year period given to the mortgagor to redeem, the buyer may take possession of the property but must
pay a bond equivalent to the amount of a rent.
       If there is deficiency judgment, the action may continue in the same proceedings except to non-resident defendants.
 
Effect if the Junior Encumbrancer is not pleaded:
1.        his right is not affected because he is merely a necessary party not an indispensable party.
2.        the remedy of the senior encumbrancer is to file independent actions to foreclose the right to redeem by requiring the
junior encumbrancer to pay the amount stated in the order of execution.
 
JUDICIAL FORECLOSURE EXTRAJUDICIAL
FORECLOSURE
Requires court intervention No court intervention
necessary
There is only an Equity of There exist a  Right of
Redemption is the right of Redemption is the right of
the defendant mortgagor to the debtor, his successor in
extinguish the mortgage interest or any judicial
and retain ownership of the creditor or judgment
property by paying the debt creditor of the debtor or any
within 90-120 days after the person having a lien  on the
entry of judgment or even property subsequent to the
after the sale but before mortgage or deed of trust
confirmation. under which the property is
sold to redeem the property
within one(1) year from the
registration of the of the
sheriff’s certificate of
foreclosure sale.
Governed by Rule 68 Governed by sec.29-31 of
Rule 39
 
 
RULE 69
PARTITION
What is Partition?
       It is the process of dividing and assigning  property owned in common among the various co-owners in proportion to
their respective interests in said property.
 
When can Partition be made?
GENERAL RULE: It can be made anytime and the right to demand partition is imprescriptible.
EXCEPTION: If the co-owner asserts adverse title to the property in which case the period of prescription runs from such time of
assertion of the adverse claim.
 
TWO(2) STAGES:
1.        Determination of the Propriety of the Partition. Includes the question whether or not the property is owned in common or
whether or not all the co-owners are made parties. If the court find that there must be partition, the aggrieved party may
appeal the decision.
2.        Actual Partitioning of the Subject Property.
       The parties may agree on the partition by executing a Deed of Partition, where it will become final after the court
approves it. The aggrieved party may appeal the decision.
       If the parties does come into an agreement as to how to partition the property, the case will be heard through   trial by
commissioner.
NOTE: No partition of  personal property.
 
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
 
FORCIBLE ENTRY UNLAWFUL DETAINER
   Possession of the land   Possession is lawful but it
by the defendant is becomes illegal because of
unlawful from the the termination of the right
beginning as he to the possession of the
acquires it by Force, property under his contract
Intimidation, Strategy, w/ the plaintiff.
Threat or
Stealth [FISTS]
   No previous Demand is    Formal Demand is
necessary. mandatory if the ground is
non-payment of rentals or
failure to comply with the
lease contract
   The plaintiff must prove    The plaintiff need not have
that he was in prior been in prior physical
physical possession of possession.
the premises until he
was deprived.
   The 1 year period is    Period is counted from the
generally counted from date of last demand or last
the date of actual entry letter of demand.
on the land.
 
NOTE: Demand under this section is jurisdictional. It is a two-fold demand:
a.        to pay and vacate; or
b.        to comply with the conditions of the lease and vacate.
 
How is Demand Made?
1.        personally
2.        by posting it at the premises, possible only if there no person found in the premises
3.        substituted service
4.        registered mail
 
GENERAL RULE: Judgment of the MTC in ejectment proceedings is immediately executory when:
1)       The defendant perfects his appeal.
2)       He files sufficient supersedeas bond to pay the rents, damages and cost accruing down to the time of judgment appealed
from.[NOTE: supersedeas bond is required only if arrearages in the rentals is awarded in the judgment by the court]
3)       He deposits with the appellate court the amount of rent due from time to time under a contract or reasonable amount for the
use and occupation of the property in the absence of a contract.
 
 
 
 
 
  
 
 
 
 
 
 
 
RULE 71
CONTEMPT
 
DIRECT CONTEMPT INDIRECT CONTEMPT
1. Nature:  
   Summary in nature  There must first be a
hearing
2. Grounds:  
c.  Misbehavior in the a.     Misbehavior of an
presence of or so near officer of a court in the
the a court as to performance of his
interrupt a proceedings. official duties.
d.  Disrespect towards the b.     Disobedience or
court or judge. resistance to a lawful
e.  Offensive personalities writ, order or judgment.
towards others. c.      Any abuse or any
f.    Refusal to be sworn or unlawful interference
to answer as a witness with the proceedings
or to subscribe an not constituting direct
affidavit or deposition. contempt.
d.     Any improper conduct
tending to degrade the
administration of
justice.
e.     Assuming to be an
attorney or an officer of
the court w/o authority.
f.       Failure to obey a
subpoena
g.     Rescue, or attempted
rescue of a person or
property in the custody
of an officer.
3. Penalty:  
a.  RTC- fine not exceeding a.        RTC- fine not
P2,000 or imprisonment exceeding P2,000 or
not exceeding 10 days imprisonment not
or both. exceeding 10 days or
b.  MTC- fine not exceeding both.
P200 or imprisonment b.        MTC- fine not
not exceeding 1 day or exceeding P200 or
both. imprisonment not
exceeding 1 day or
both.