PRE-TRIAL

CONCEPT OF PRE-TRIAL

Pre -trial is a mandatory procedural device by which the court is called upon, after the filing of
the last pleading, to compel the parties and their lawyers to appear before it for the purposes
enumerated under Section 2, Rule 18. ( Cannot be the subject of a waiver)

When conducted? (Sec. 1, Rule 18)

After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly
move ex parte that the case be set for pre-trial. ( After issues have been joined)

The motion is to be filed within 5 days after the last pleading joining the issue has been served
and filed (Admin. Circular No. 3-99, Jan. 15, 1999).

If the plaintiff fails to file said motion within the given period, the Clerk of Court shall issue a
notice of pre-trial. (A.M. No. 03-1-09-SC, Re: Pre-trial guidelines, Effective August 16, 2004)

The plaintiff need not wait until the last pleading has been actually served and filed as the
expiration of the period for filing the last pleading will suffice. (Sarmiento v. Juan, No. 56605
January 28, 1983).

Nature and purpose (Sec. 2, Rule 18)

The pre-trial is mandatory. The court shall consider:

a) The possibility of an amicable settlement or of a submission to alternative modes of

dispute resolution;
b) The simplification of the issues;
c) The necessity or desirability of amendments to the pleadings; ( Rule 10)
d) The possibility of obtaining stipulations or admissions of facts and of documents to
avoid unnecessary proof;
e) The limitation of the number of witnesses;( court’s discretion)
f) The advisability of a preliminary reference of issues to a commissioner; ( or referee)
g) The propriety of rendering judgment on the pleadings, or summary judgment ( Rules 34
and 35), or of dismissing the action should a valid ground therefor be found to exist;
( Not limited to Rule 16, i.e., preliminary hearing on the affirmative defenses)
h) The advisability or necessity of suspending the proceedings; ( for the possibility of an
amicable settlement , 60 days)and;
i) Such other matters as may aid in the prompt disposition of the action.( Usually modes of
discovery)

Notice of pre-trial

The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The
counsel served with such notice is charged with the duty of notifying the party represented by
him. (Sec. 3, Rule 18)

Appearance of parties

It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-
appearance of a party may be excused only if a valid cause is shown therefor or if a
representative shall appear in his behalf fully authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or
admissions of facts and of documents. (Sec. 4, Rule 18)

Effect of failure to appear

The failure of the plaintiff to appear when so required pursuant to the next preceding section
shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless other-

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wise ordered by the court. A similar failure on the part of the defendant shall be cause to allow
the plaintiff to present his evidence ex parte and the court to render judgment on the basis
thereof. (Sec. 5, Rule 18) ( Note: no more declaration of default but the situation is “ as in
default”)

Pre-trial brief (Sec. 6, Rule 18)

The parties shall file with the court and serve on the adverse party, in such manner as shall
ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective
pre-trial briefs which shall contain, among others:

a) A statement of their willingness to enter into amicable settlement or alternative

modes of dispute resolution, indicating the desired terms thereof;
b) A summary of admitted facts and proposed stipulation of facts;
c) The issues to be tried or resolved;
d) The documents or exhibits to be presented stating the purpose thereof;
e) A manifestation of their having availed or their intention to avail themselves of
discovery procedures or referral to commissioners; and
f) The number and names of the witnesses, and the substance of their respective
testimonies.

► Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.
( note the sheer importance of filing the pre-trial brief)

► Clearly, the said Rules command, in no uncertain terms, the filing of the preliminary
conference brief and compliance with the required contents of the said brief. By the Rules'
express language, the failure to comply therewith shall have the same effect as failure to appear
at the preliminary conference which, in turn, shall be a sufficient cause for the dismissal of the
protest. (Cabrera v. COMELEC, G.R. No. 182084, October 8, 2008)

Distinction between pre-trial in civil case and pre-trial in criminal case

CIVIL CASE CRIMINAL CASE

The presence of the defendant is required
unless he is duly represented by his
counsel with authority to enter into a
compromise agreement, failure of which
the case would proceed as if the defendant
has been declared in default.
The presence of the plaintiff is required at
the pre-trial unless excused or represented
by person fully authorized in writing to
perform the acts specified in Sec 4, Rule 18.
Failure of which the case may be dismissed
with or without
prejudice.
A pre-trial brief is required
The presence of the accused is not
indispensable unless required by the
court, he is just required to sign the
written agreement arrived at the pretrial
if he is in conformity therewith.
The offended party is not required to be
present at the pre-trial but must appear at
the
arraignment for the purpose of plea
bargaining, determination of civil liability
and other matters requiring his presence.
(If the offended party fails to appear, and
the accused offer to plea to a lesser
offense, the same may be allowed with
the
conformity of the prosecutor alone.
Does not require filing of pre-trial brief
but attendance only in a pre-trial
conference to consider the matters stated
in sec 2, rule18 (Regalado)

Effect of failure to set the case for pre-trial

Under Section 1, Rule 18 of the 1997 Rules of Civil Procedure, as amended, it is the duty of the
plaintiff, after the last pleading has been served and filed, to promptly move ex parte that the
case be set for pre-trial. On August 16, 2004, A.M. No. 03-1-09-SC (Re: Proposed Rule on
Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-

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Trial and Use of Deposition-Discovery Measures) took effect, which provides that:

Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex
parte that the case be set for pre-trial conference. If the plaintiff fails to file said motion
within the given period, the Branch COC shall issue a notice of pre-trial.

In BPI v. Spouses Genuino, (G.R. No. 208792, July 22, 2015) the Supreme Court held:

Nevertheless, nowhere in the text of A.M. No. 03-1-09-SC does it remove the
plaintiff's duty under Rule 18, Section 1 of the Rules of Court to set the case for pre-trial after
the last pleading has been served and filed. Nowhere does it repeal Rule 17, Section 3 of the
Rules of Court that allows dismissals due to plaintiff's fault, including plaintiff's failure to
comply with the Rules for no justifiable cause. Nowhere does it impose a sole burden on the
trial court to set the case for pre-trial.

Reading A.M. No. 03-1-09-SC together with Rule 17, Section 3 and Rule 18, Section 1 of the
Rules of Court accommodates the outright dismissal of a complaint upon plaintiff's failure to
show justifiable reason for not setting the case for pre-trial within the period provided by the
Rules. Thus, trial courts must consider the facts of each case.

This court has allowed cases to proceed despite failure by the plaintiff to promptly move for
pre-trial when it finds that "the extreme sanction of dismissal of the complaint might not be
warranted": ( note the court’s wide latitude for discretion)

It must be stressed that even if the plaintiff fails to promptly move for pre-trial
without any justifiable cause for such delay, the extreme sanction of dismissal of
the complaint might not be warranted if no substantial prejudice would be caused
to the defendant, and there are special and compelling reasons which would make
the strict application of the rule clearly unjustified.
xxx xxx xxx

While "heavy pressures of work" was not considered a persuasive reason to justify
the failure to set the case for pre-trial in Olave v. Mistas, however, unlike the
respondents in the said case, herein respondent never failed to comply with the
Rules of Court or any order of the trial court at any other time. Failing to file a
motion to set the case for pre-trial was her first and only technical lapse during the
entire proceedings. Neither has she manifested an evident pattern or a scheme to
delay the disposition of the case nor a wanton failure to observe the mandatory
requirement of the rules. Accordingly, the ends of justice and fairness would best
be served if the parties are given the full opportunity to litigate their claims and
the real issues involved in the case are threshed out in a full-blown trial. Besides,
petitioners would not be prejudiced should the case proceed as they are not
stripped of any affirmative defenses nor deprived of due process of law.

This is not to say that adherence to the Rules could be dispensed with. However,
exigencies and situations might occasionally demand flexibility in their
application. Indeed, on several occasions, the Court relaxed the rigid application
of the rules of procedure to afford the parties opportunity to fully ventilate the
merits of their cases. This is in line with the time-honored principle that cases
should be decided only after giving all parties the chance to argue their causes and
defenses. Technicality and procedural imperfection should thus not serve as basis
of decisions.

Finally, A.M. No. 03-1-09-SC or the new Guidelines to be Observed by Trial Court
Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-
Discovery Measures, which took effect on August 16, 2004, aims to abbreviate
court proceedings, ensure prompt disposition of cases and decongest court
dockets, and to further implement the pre-trial guidelines laid down in
Administrative Circular No. 3-99 dated January 15, 1999. A.M. No. 03-1-09-SC
states that: "Within five (5) days from date of filing of the reply, the plaintiff must
promptly move ex-parte that the case be set for pre-trial conference. If the plaintiff
fails to file said motion within the given period, the Branch COC shall issue a
notice of pre-trial." As such, the clerk of court of Branch 17 of the Regional Trial
Court of Malolos should issue a notice of pre-trial to the parties and set the case
for pre-trial. (Emphasis supplied, citations omitted)

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 PROVISIONAL REMEDIES
(ANCILLARY WRITS OR AUXILLARY REMEDIES)

KINDS OF PROVISIONAL REMEDIES ( APRAD)

a) Preliminary Attachment
b) Preliminary Injunction
c) Receivership
d) Replevin
e) Support Pende Lite
f) Deposit ( Lim vs. Reyes)

► are writs 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. They are
provisional because they constitute temporary measures availed of during the pendency of the
action, and ancillary because they are mere incidents in and are dependent upon the result of
the main action. (Regalado)

RULE 57. PRELIMINARY ATTACHMENT

NATURE: One issued at the commencement of the action or at any time before judgment as
SECURITY for the satisfaction of any judgment.

A writ of preliminary attachment is a provisional remedy issued upon the order of the court
where an action is pending. Through the writ, the property or properties of the defendant may
be levied upon and held thereafter by the sheriff as security for the satisfaction of whatever
judgment might be secured by the attaching creditor against the defendant. The provisional
remedy of attachment is available in order that the defendant may not dispose of the property
attached, and thus prevent the satisfaction of any judgment that may be secured by the plaintiff
from the former. (G.R. No. 219345, Security Bank Corp v. Great Wall Commercial Press Co.,
Inc., January 30, 2017)

The writ of preliminary attachment is only a provisional remedy, which is not a cause of
action in itself but is merely adjunct to a main suit. (Ibid)

PURPOSE:
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.

GROUNDS:
1. Recovery of a specified amount of money or damages, other than moral or exemplary on
a cause of action arising from law, contact, quasi-contract, delict or quasi-delict.

 (Hence cannot be issued for moral and exemplary damages and other
unspecified or unliquidated claims (Insular Savings Bank vs. Court of Appeals,
460 SCRA 122)

2. Action for money or property embezzled ( fraudulent misapplication or conversion)

3. Recovery of property unjustly or fraudulently taken, detained or converted (defendant
here has concealed, removed or disposed of the property for the purpose of
preventing its being found or taken by the applicant or authorized person).
4. Fraud in contracting or performing an obligation the fraudulent act itself is the incipient
cause of defraudation, i.e., issuing a bum check in exchange for a merchandise. This will
include both dolo causante and dolo incidente.

o Fraud is never presumed; it must be averred with particularity in the Affidavit of

merit with particularity. (Watercraft Venture vs. Alfred Raymond Wolfe, G.R.No.
181721, September 9, 2015).

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 o While fraud cannot be presumed, it need not be proved by direct evidence and
can well be inferred from attendant circumstances. Fraud by its nature is not a
thing susceptible of ocular observation or readily demonstrable physically; it
must of necessity be proved in many cases by inferences from circumstances
shown to have been involved in the transaction in question. (G.R. No. 219345,
Security Bank Corp v. Great Wall Commercial Press Co., Inc., January 30, 2017)

5. Removal or disposal of property with intent to defraud ( the plaintiff or the creditor)
6. Where the adverse party does not reside and is not found in the Philippines, or on
whom summons may be served by publicaton. ( sufficient to confer jurisdiction over the
res)

 Grounds under Rule 57 are specific and exclusive; non- reliance thereon may
expose the Judge to charge of abuse of discretion under Rule 65 and may result
to the lifting or discharge of the attachment.

REQUIREMENTS:

a) AFFIDAVIT – which must contain all the allegations required and the circumstances on why
it should be granted. It need not be executed by the applicant. It may be executed by other
persons who know the facts.
CONTENTS:
1. that a sufficient cause of action exists;
2. that the case is one of those mentioned in Section 1 17 hereof;
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, is as much as the sum for which the order is
granted above all legal counterclaims. (G.R. No. 181721, Watercraft Venture
Corp. v. Wolfe, September 9, 2015)

The sufficiency or insufficiency of an affidavit depends upon the amount of credit given it by
the judge, and its acceptance or rejection, upon his sound discretion. (Ibid)

b) BOND – answers for all damages incurred by the party against whom the attachment was
issued.

Requisites:
1. Note that there is nothing in the Rules which require a specific amount. Practice has
always been that the same should at least be equivalent to the sum total of the
obligation.

2. Could be Cash, Surety, Corporate or Property, propriety of which shall always be

addressed to the sound discretion of the Court.

ISSUANCE AND CONTENTS OF THE ORDERS

a) resolved against the applicant in case of doubt; onus of proving the existence of the
ground lies with the applicant

b) while ordinarily applied for at the inception of the case, this is actually available at any
time before judgment

c) may be issued ex- parte ( Section 2, Rule 57) or with notice and hearing at the court’s
discretion; ex-parte in cases of extreme urgency and so as to preempt any possible
disposition of the property by the adverse party to the detriment of the attaching
creditor ( Mindanao Savings and Loan Association, Inc. vs. CA ( 172 SCRA 480)

 For the issuance of an ex-parte issuance of the preliminary attachment to be valid,

an affidavit of merit and an applicant's bond must be filed with the court 14 in
which the action is pending. (G.R. No. 181721, Watercraft Venture Corp. v.
Wolfe, September 9, 2015)

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DURATION OF THE ATTACHMENT:
-Addressed to the sound discretion of the court but this could sometimes
extend up to judgment, in which case, the preliminary nature of the attachment
could become final.

REMEDIES AGAINST ATTACHMENT:

1. Posting of Counterbond;
2. Lifting or Discharge due to an improvident issuance ; in both instances, a hearing is
required.

Contemporaneous Service of the following ( to satisfy requirements of due process for the
defendant and to enable the court to acquire jurisdiction over him)

1) Copy of the Complaint;

2) Summons;
3) Order granting the Writ;
4) Writ itself

Strict Compliance for:

1. Conduct of Summary Hearing;

2. Motion to Discharge not allowed to dwell on the merits or matters of defense; attention
solely focused on the propriety of the Order granting the Writ.

GROUNDS FOR DISCHARGE OR DISSOLUTION OF A WRIT OF ATTACHMENT

a) the debtor has posted a counter-bond or has made the requisite cash deposit;
b) the attachment was improperly or irregularly issued as where there is no ground for
attachment, or the affidavit and/or bond filed therefor are defective or insufficient;
c) the attachment is excessive, but the discharge shall be limited to the excess;
d) the property attachment is exempt from preliminary attachment; or
e) the judgment is rendered against the attaching creditor. (G.R. No. 187922, Marphil
Export Corp. V. Allied Bank Corp., September 21, 2016)

TERCERIA in Attachment

 The aggrieved third party may also avail himself of the remedy of "terceria" by
executing an affidavit of his title or right of possession over the property levied on
attachment and serving the same to the office making the levy and the adverse party.
Such party may also file an action to nullify the levy with damages resulting from the
unlawful levy and seizure, which should be a totally separate and distinct action from
the former case. The abovementioned remedies are cumulative and any one of them
may be resorted to by one third-party claimant without availing of the other remedies.
(G.R. No. 124642, Ching v. Court of Appeals, February 23, 2004)

RULE 58. PRELIMINARY INJUNCTION

NATURE: A judicial writ, process, or proceedings whereby a party is ordered to do or refrain

from doing a particular act.

 The possibility of irreparable damage without proof of an actual existing right is not a
ground for a preliminary injunction. (G.R. No. 182944, DPWH v. City Advertising
Ventures Corp., November 9, 2016)

 Preceded most often by a TRO (note that a WPI is not necessarily preceded by a TRO
which is intended merely to preserve the Status Quo)

PURPOSE:

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 a) to preserve the status quo or to prevent future wrongs in order to preserve, and
b) protect the interests of the petitioners during the pendency of the action. (Novecio v.
Lim, G.R. No. 193809, March 23, 2015)

REQUISITES (Section 3)

The following requisites must be proved before a writ of preliminary injunction will issue:

1. The applicant must have a clear and unmistakable right to be protected, that is, a right in
esse;
2. There is a material and substantial invasion of such right;
3. There is an urgent need for the writ to prevent irreparable injury to the applicant; and,
4. No other ordinary, speedy, and adequate remedy exists to prevent the infliction of
irreparable injury. (G.R. Nos. 205875 & 208916, Liberty Broadcasting Network, Inc. v.
Atlocom Wireless System, Inc., June 30, 2015)

 “ irreparable injury” means such injury which is not capable of pecuniary or monetary
calculation or where amount is not identified or quantified ( note labor cases).

 In satisfying these requisites, parties applying for a writ of preliminary injunction need
not set out their claims by complete and conclusive evidence. Prima facie evidence
suffices:

It is crystal clear that at the hearing for the issuance of a writ of

preliminary injunction, mere prima facie evidence is needed to establish the
applicant's rights or interests in the subject matter of the main action. It is not
required that the applicant should conclusively show that there was a violation
of his rights as this issue will still be fully litigated in the main case. Thus, an
applicant for a writ is required only to show that he has an ostensible right to the
final relief prayed for in his complaint.

Spouses Nisce v. Equitable PCI Bank (545 Phil. 138 (2007) discussed the
requisites, vis-a-vis the proof required, for issuing a writ of preliminary
injunction:

The plaintiff praying for a writ of preliminary injunction must further establish
that he or she has a present and unmistakable right to be protected; that the facts
against which injunction is directed violate such right; and there is a special and
paramount necessity for the writ to prevent serious damages. In the absence of
proof of a legal right and the injury sustained by the plaintiff, an order for the
issuance of a writ of preliminary injunction will be nullified. Thus, where the
plaintiff's right is doubtful or disputed, a preliminary injunction is not proper.
The possibility of irreparable damage without proof of an actual existing right is
not a ground for a preliminary injunction.

However, to establish the essential requisites for a preliminary injunction, the

evidence to be submitted by the plaintiff need not be conclusive and complete.
The plaintiffs are only required to show that they have an ostensible right to the
final relief prayed for in their complaint. A writ of preliminary injunction is
generally based solely on initial or incomplete evidence. Such evidence need only
be a sampling intended merely to give the court an evidence of justification for a
preliminary injunction pending the decision on the merits of the case, and is not
conclusive of the principal action which has yet to be decided. (G.R. No. 182944,
DPWH v. City Advertising Ventures Corp., November 9, 2016)

 Hearing is always required per Section 5 of Rule 58 unlike in Attachment which

could be issued ex-parte or after due notice. However, if on the face of the
pleadings, the applicant for WPI is not entitled thereto, courts may outrightly
deny the motion without conducting a hearing for the purpose. Courts are
disinclined to impose a mandatory hearing requirement on applications for
injunction that are prima facie palpably without merit or impossible to grant. To
impose the mandatory hearing requirement will be an undue imposition on the
overly burdened trial courts. Otherwise, our trial courts will be forced to hear out
the sort of litigation- happy attention-deprived miscreants who abuse the judicial

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 processes by filing complaints against real or imaginary persons based on trivial
or inexistent slights. ( New Sound Broadcasting Network Inc. and Consolidated
Broadcasting System, inc. v. Hon. Cesar Dy et. al. G.R. Nos. 170270, April 2, 2009.)

Prior Notice is indispensable for the issuance of a writ of Preliminary Injunction and a
Temporary Restraining Order.

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. (Sec. 5, Rule 58)

Note on 72-hour TRO

 This is to be issued by the Executive Judge alone in multiple sala station courts.
The regular Judge is not mandated to extend the said 72- hours TRO which in the
first place must have been justified by an extreme urgency as determined by the
Judge.

 Note that under the current Supreme Court Circular, the duration of the WPI
shall not exceed 6 months from its issuance. In which case, the trial court is thus
expected to dispose or decide the main case within the same period, otherwise,
this may subject the Judge to administrative sanctions.

Preliminary Mandatory Injunction in cases cognizable by the MTC ( to restore the status quo in
ejectment cases and to preserve that status quo which has been restored)

Preliminary Injunction in a Petition for Relief from Judgment under Rule 38.

Prohibitions of TRO or WPI in government projects ( under RA 8975, an Act to Ensure the
expeditious implementation and completion of government projects) under the following
cases:

1. Acquisition, clearance and development of the right-of-way and or site/ location of any
national government project;
2. Bidding or awarding of contracts of the national government;
3. Commencement, execution of any such contract or project;
4. Termination or rescission of such contract/ project/ undertaking or authorization of any
other lawful activity necessary for such contract or project.

Important note:

Trial courts are enjoined from issuing orders releasing imported articles impounded by the
Bureau of Customs. It is settled in jurisprudence that the Collector of Customs has exclusive
jurisdiction over seizure and forfeiture proceedings and regular courts cannot interfere
therewith or stifle and put it to naught. ( Zuno vs. Cabredo, 402 SCRA 75.)

RULE 59. RECEIVERSHIP

Who is a receiver?
A 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.

The general rule is that neither party to a litigation should be appointed as receiver
without the consent of the other because a receiver should be a person indifferent to the parties
and should be impartial and disinterested. The receiver is not the representative of any of the
parties but of all of them to the end that their interests may be equally protected with the least
possible inconvenience and expense. (Commodities Storage & Ice Plant Corporation v. Court of
Appeals, 340 Phil. 551 (1997)

Receiver must be someone who is totally disinterested or detached to the case, he is not

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the agent or is acting for and in behalf of any of the litigants.

PURPOSE:

 Primarily intended to prevent dissipation or wastage of assets; object is the property

subject of the proceedings; can be applied for at the commencement of the action,
pendency of the action, appeal or execution proceedings.
 Cannot be granted in a mere suit for collection of a sum of money, there must be an
allegation of dissipation or wastage of assets

Appointment of Receiver

 Receiver must up a Bond (before and after) in light of the numerous tasks that he is
expected to discharge. (Sec. 2)

 Receiver shall be sworn to perform all his duties faithfully. (Sec. 4)

GENERAL POWERS OF RECEIVER (Sec. 6)

a. to bring and defend, in such capacity, action in his own name;
b. to take and keep possession of the property in controversy;
c. to receive rents;
d. to collect debts due to himself as receiver or to the fund, property, estate, person,
or corporation of which he is the receiver;
e. to compound for and compromise the same;
f. to make transfer;
g. to pay outstanding debts;
h. to divide the money and other property that shall remain among the persons
legally entitled to receive the same;
i. and generally to do such acts respecting the property as the court may authorize.

 However, funds in the hands of a receiver may be invested only by order of the court
upon the written consent of all the parties to the action.

 No action may be filed by or against a receiver without leave of the court which
appointed him.

ACTION AGAINST THE RECEIVER

The rule which requires leave of the appointing court before an action may be maintained
against a receiver, is true only when the receivership is still pending. (National City Bank of
New York v. New York Tong Lin & Marine Insurance Co. 067 Phil 544 (1939)

RULE 60. REPLEVIN

Replevin is an action whereby the owner or person entitled to repossession of goods or chattels
may recover those goods or chattels from one who has wrongfully distrained or taken, or who
wrongfully detains such goods or chattels. (Malayan Insurance Company, Inc. v. Alibudbud,
G.R. No. 209011, April 20, 2016)

PURPOSE

It is designed to permit one having right to possession to recover property in specie from one
who has wrongfully taken or detained the property. The term may refer either to the action
itself, for the recovery of personalty, or to the provisional remedy traditionally associated with
it, by which possession of the property may be obtained by the plaintiff and retained during the
pendency of the action." (Ibid)

Can be availed of at any time at the commencement of the action or at any time before answer

Requirements:

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1. Affidavit of Merit- Which must set forth the circumstances relied upon;
2. Bond – Which must be twice the value of the property sought to be replevied.)

The applicant need not be the owner; it is enough that he is entitled to its possession ( Yang vs.
Valdez, 177 SCRA 141)

TERCERIA in Replevin

 It is similar to third-party claims in Attachment and Execution under Rule 39. This is the
instance where the implementation of the writ shall not push through if the third-party
claimant presents or executes an Affidavit of Title. Court action; need for an indemnity
bond.

 No implementation of the writ of replevin in properties under custodia legis as

distinguished from attachment. Reason for this, if it would be otherwise, there would be
interference with the possession of the property before the function of the law had been
performed as to the process under which the property was taken ( Chua vs. Court of
Appeals, 222 SCRA 85).

 Judgment could be in the alternative: delivery of the property itself or judgment for a
sum of money; note that the plaintiff may refuse to receive the property replevied under
certain conditions.

 The Court ruled in Navarro v. Escobido (G.R. No. 153788, November 27, 2009) that prior
demand is not a condition precedent to an action for a writ of replevin, since there is
nothing in Section 2, Rule 60 of the Rules of Court that requires the applicant to make a
demand on the possessor of the property before an action for a writ of replevin could be
filed. (G.R. No. 182963, June 3, 2013)

RULE 61. SUPPORT PENDENTE LITE (ALIMONY)

PURPOSE:
1. To compel adverse party to provide support while action is pending in court;
2. No bond is required from the applicant;
3. The application must be verified and shall be set for hearing not more than three (3)
days from filing of the petition.

In Lim-Lua v. Lua, (G.R. No. 175279-80, June 5, 2013) the Supreme Court held:

Judicial determination of support pendente lite in cases of legal separation and petitions
for declaration of nullity or annulment of marriage are guided by the following provisions of
the Rule on Provisional Orders.

Sec. 2. Spousal Support. — In determining support for the spouses, the court
may be guided by the following rules:

(a) In the absence of adequate provisions in a written agreement

between the spouses, the spouses may be supported from the properties of the
absolute community or the conjugal partnership.

(b) The court may award support to either spouse in such amount
and for such period of time as the court may deem just and reasonable based on
their standard of living during the marriage.

(i) The court may likewise consider the following factors: (1) whether the
spouse seeking support is the custodian of a child whose
circumstances make it appropriate for that spouse not to seek
outside employment; (2) the time necessary to acquire sufficient
education and training to enable the spouse seeking support to

11 | P a g e
 find appropriate employment, and that spouse's future earning
capacity; (3) the duration of the marriage; (4) the comparative
financial resources of the spouses, including their comparative
earning abilities in the labor market; (5) the needs and obligations
of each spouse; (6) the contribution of each spouse to the
marriage, including services rendered in home-making, child care,
education, and career building of the other spouse; (7) the age and
health of the spouses; (8) the physical and emotional conditions of
the spouses; (9) the ability of the supporting spouse to give
support, taking into account that spouse's earning capacity,
earned and unearned income, assets, and standard of living; and
(10) any other factor the court may deem just and equitable.
(ii)
(d) The Family Court may direct the deduction of the provisional support
from the salary of the spouse.

Sec. 3. Child Support. — The common children of the spouses shall be

supported from the properties of the absolute community or the conjugal
partnership.

Subject to the sound discretion of the court, either parent or both may be ordered
to give an amount necessary for the support, maintenance, and education of the
child. It shall be in proportion to the resources or means of the giver and to the
necessities of the recipient.

In determining the amount of provisional support, the court may likewise

consider the following factors: (1) the financial resources of the custodial and
non-custodial parent and those of the child; (2) the physical and emotional health
of the child and his or her special needs and aptitudes; (3) the standard of living
the child has been accustomed to; (4) the non-monetary contributions that the
parents will make toward the care and well-being of the child.

The Family Court may direct the deduction of the provisional support from the
salary of the parent.

The support granted may be in money or other forms in accordance with Article 194 of the
Family Code, which provides as follows, (all in keeping with the financial capacity of the
family):

a. Everything indispensable for sustenance;

b. Dwelling;
c. Clothing;
d. Medical attendance;
e. Education; and,
f. Transportation

Note the variable nature of an Order granting Support Pendente Lite to the changing capacity
of the giver and the equally changing needs of the recipient.

Who may ask for support?

By express provision of Section 1 of Rule 61, any party , not only the plaintiff, may apply for
such as long as there are legal grounds to support such application.

When is it filed?
Can be applied for at the commencement of the action or at any time before judgment.

PROCEDURE:

1. a verified application shall be filed, stating the grounds and the financial conditions of
the parties;
2. must be supported by affidavits, depositions or other authentic documents in support
thereof.

NOTES:

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  If the right to support is put in issue in the pleadings or the fact from which the right to
support arises has not been established, the Court cannot grant support pendent lite.
(Francisco vs. Zulueta, 61 Phil. 752)

 Support Pendente Lite in a criminal case which resulted to the birth of an offspring. It is
important that what is pending is a criminal case and the civil aspect thereof is likewise
instituted therein and has not been the subject of reservation or waiver .

 Note very well that here, the movant for Support pendente lite is available
notwithstanding the fact that there is no conviction yet. Also, the remedies of restitution
and reimbursement under Rule 39 become available once it is determined that there is
no right to support ( i.e., accused is acquitted).

Order of execution: upon motion or motu proprio; could also result to contempt citation.

Execution upon motion of a third person ( Section 5, Rule 61).

DEPOSIT or Escrow ( by virtue of jurisprudence, Reyes vs. Lim, 408 SCRA 560).
 allowed as a provisional remedy in the exercise of the court’s equity jurisdiction: In an
action for Specific Performance and Nullification of Sale and title plus damages, the
buyer moved that the seller be ordered to deposit with the cashier of the trial court the
P10 Milion downpayment on the land by the buyer to prevent the dissipation of the
amount pending the resolution of the case.

OTHER PROVISIONAL REMEDIES:

1. Under the Rule on the Writ of Amparo ( TPO, WPO, IO, PO);
2. Special Provisional Remedies under RA 8369 or Family Court Cases
3. Seizure and Sequestration Orders under the Human Security Act preventing terrorism;
4. Protection Order and Barangay Protection Order in VAWC cases ( RA 9262);
5. Freezing of Monetary Instrument or Property, or Authority to Inquire into Bank
Deposits under AMLA Cases;
6. Stay Order in Corporate Rehabilitation
7. TEPO in Environmental Cases.

SPECIAL CIVIL ACTION

What is a Special Civil action?

It is one which also governed by the rules for ordinary civil actions, but subject to the specific
rules prescribed for a special civil action.

Special civil actions initiated by filing of a Petition:

1. Declaratory relief other than similar remedies;

2. Review of adjudication of the COMELEC and COA;
3. Certiorari, prohibition and mandamus;
4. Quo warranto; and
5. Contempt

13 | P a g e
Special civil actions initiated by filing of a Complaint:

1. Interpleader;
2. Expropriation;
3. Foreclosure of real estate mortgage;
4. Partition; and
5. Forcible entry and unlawful detainer.

INTERPLEADER (RULE 62)

Interpleader is a special civil action filed by a person against whom two conflicting claims are
made upon the same subject matter and over which he claims no interest, to compel the
claimants to interplead and to litigate their conflicting claims among themselves (Sec. 1).

Interpleader is a person who has property in his possession or an obligation to render, wholly
or partially without claiming any right therein, or an interest in which in whole or in part is not
disputed by the claimants, comes to court and asks that the persons who consider themselves
entitled to demand compliance with the obligation be required to litigate among themselves in
order to determine finally who is entitled to the same.

► An interpleader complaint may be filed by a lessee against those who have conflicting claims
over the rent due for the property leased. This remedy is for the lessee to protect him or her
from "double vexation in respect of one liability." He or she may file the interpleader case to
extinguish his or her obligation to pay rent, remove him or her from the adverse claimants'
dispute, and compel the parties with conflicting claims to litigate among themselves. (Lui
Enterprise, Inc. v. Zuellig Pharma Corp., G.R. No. 193494, March 12, 2014)

An action of interpleader is afforded to protect a person not against double liability but against
double vexation in respect of one liability. (RCBC v. Metro Container Corp., G.R. No. 127913,
September 13, 2001)

Requisites for interpleader

(1) There must be two or more claimants with adverse or conflicting interests to a property in
the custody or possession of the plaintiff;

(2) The plaintiff in an action for interpleader has no claim upon the subject matter of the adverse
claims or if he has an interest at all, such interest is not disputed by the claimants;

(3) The subject matter of the adverse claims must be one and the same; and

(4) The parties impleaded must make effective claims.

When to file

Whenever conflicting claims upon the same subject matter are or may be made against a person
who claims no interest whatever in the subject matter, or an interest which in whole or in part is
not disputed by the claimants, he may bring an action against the conflicting claimants to
compel them to interplead and litigate their several claims among themselves (Sec. 1).

RULE 63. DECLARATORY RELIEFS AND SIMILAR REMEDIES

An action for declaratory relief is brought to secure an authoritative statement of the

rights and obligations of the parties under a contract or a statute for their guidance in the
enforcement or compliance with the same (Meralco vs. Philippine Consumers Foundation, 374
SCRA 262).

PURPOSE:

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  [T]he purpose of an action for declaratory relief is to secure an authoritative statement of
the rights and obligations of the parties under a statute, deed, or contract for their
guidance in the enforcement thereof, or compliance therewith, and not to settle issues
arising from an alleged breach thereof. (Aquino v. Municipality of Malay Aklan, G.R.
No. 211356, September 29, 2014)

 A petition for declaratory relief gives a practical remedy for ending controversies that
have not reached the state where another relief is immediately available; and supplies
the need for a form of action that will set controversies at rest before they lead to a
repudiation of obligations, an invasion of rights, and a commission of wrongs. (Ibid)

WHO MAY FILE?

By one "whose rights are affected by a statute, executive order or regulation, ordinance, or any
other governmental regulation. (Sec. 1)

SUBJECT MATTER IN A PETITION FOR DECLARATORY RELIEF:

1. Deed;
2. Will;
3. Contract or other written instrument;
4. Statute;
5. Executive order or regulation;
6. Ordinance; or
7. Any other governmental regulation (Sec. 1).

WHEN FILED?

The petition for declaratory relief is filed before there occurs any breach or violation of
the deed, contract, statute, ordinance or executive order or regulation. (Sec. 1) The trial court has
no jurisdiction over the petition for declaratory relief if the statute, deed, contract, etc, has
already been breached. When a court assumed jurisdiction over a Petition for declaratory relief
when there was already a breach of the subject instrument or government regulation, the orders
made by that court would be null and void for want of jurisdiction. (Department of Finance v.
Dela Cruz, Jr., G.R. No. 209331, August 24, 2015 citing Tambunting, Jr. v. Spouses Sumabat (507
Phil. 94 (2005))

ESSENTIAL REQUISITES

1. there must be a justiciable controversy;

2. the controversy must be between persons whose interests are adverse; and
3. the party seeking declaratory relief must have a legal interest in the controversy.
(Macasiano v. NHA, G.R. No. 107921, July 1, 1993)
4. The issue is ripe for judicial determination (Republic vs. Orbecido III, 472 SCRA 114,
2005).

WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION

Except in actions falling under the second paragraph of section 1 of this Rule, the court,
motu proprio or upon motion, may refuse to exercise the power to declare rights and to
construe instruments in any case where a decision would not terminate the uncertainty or
controversy which gave rise to the action, or in any case where the declaration or construction is
not necessary and proper under the circumstances. (Sec. 5)
CONVERSION INTO ORDINARY ACTION

If before the final termination of the case, a breach or violation of an instrument or a

statute, executive order or regulation, ordinance, or any other governmental regulation should
take place, the action may thereupon be converted into an ordinary action, and the parties shall
be allowed to file such pleadings as may be necessary or proper. (Sec. 6)

REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE

COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT (RULE 64)

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 1. A judgment or final order or resolution of the Commission on Elections and the
Commission on Audit may be brought by the aggrieved party to the Supreme Court on
certiorari under Rule 65 (Sec. 2). The filing of a petition for certiorari shall not stay the
execution of the judgment or final order or resolution sought to be reviewed, unless the
SC directs otherwise upon such terms as it may deem just (Sec. 8).

2. Decisions of the Civil Service Commission shall be appealed to the Court of Appeals
which has exclusive appellate jurisdiction over all judgments or final orders of such
commission (RA 7902).

3. The petition shall be filed within thirty (30) days from notice of the judgment or final
order or resolution sought to be reviewed. The filing of a motion for new trial or
reconsideration of said judgment or final order or resolution, if allowed under the
procedural rules of the Commission concerned, shall interrupt the period herein fixed. If
the motion is denied, the aggrieved party may file the petition within the remaining
period, but which shall not be less than five (5) days in any event, reckoned from notice
of denial (Sec. 3).

Distinction in the application of Rule 65 to judgments of the COMELEC and COA and the
application of Rule 65 to other tribunals, persons and officers

Rule 64 Rule 65
Directed only to the judgments, final Directed to any tribunal, board or officers
orders or resolutions of the COMELEC and exercising judicial or quasi-judicial
COA; functions;
Filed within 30 days from notice of the Filed within 60 days from notice of the
judgment; judgment;
The filing of a motion for reconsideration
or a motion for new trial if allowed,
interrupts the period for the filing of the The period within which to filed the
petition for certiorari. If the motion is petition if the motion for reconsideration
denied, the aggrieved party may file the or new trial is denied, is 60 days from
petition within the remaining period, but notice of the denial of the motion.
which shall not be less than 5 days
reckoned from the notice of denial.

RULE 65. CERTIORARI, PROHIBITION AND MANDAMUS

A petition for certiorari under Rule 65 is proper to correct errors of jurisdiction

committed by the lower court, or grave abuse of discretion which is tantamount to lack of
jurisdiction. This remedy can be availed of when there is no appeal or any plain, speedy, and
adequate remedy in the ordinary course of law.(Cunanan v. Court of Appeals, G.R. No. 205573,
August 17, 2016)

It is a limited form of review confined to errors of jurisdiction. An error of jurisdiction is

one where the officer or tribunal acted without or in excess of its jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction. On the other hand, an error of
judgment is one which the court may commit in the exercise of its jurisdiction. They only
involve errors in the court or tribunal's appreciation of the facts and of the law. Errors of
jurisdiction are reviewable on certiorari; errors of judgment, only by appeal. (Tan Po Chu v. CA,
G.R. No. 184348, April 4, 2016)

If appeal is available, an appeal must be taken even if the ground relied upon is grave
abuse of discretion. (Yellow Bus Line Employees Union v. Yellow Bus Line, Inc., G.R. No. 190876,
June 15, 2016 citing Philippine Electric Corporation v. Court of Appeals, et al., G.R. No. 168612,
December 10, 2014)

Exception to the rule, the Court has allowed petitions for certiorari to be filed in
lieu of an appeal "(a) when the public welfare and the advancement of public policy

16 | P a g e
 dictate; (b) when the broader interests of justice so require; (c) when the writs issued are
null; and (d) when the questioned order amounts to an oppressive exercise of judicial
authority." (Yellow Bus Line Employees Union v. Yellow Bus Line, Inc., Ibid)
DISTINCTIONS
CERTIORARI
Certiorari is an
extraordinary writ
annulling or modifying the
proceedings of a tribunal,
board or officer exercising
judicial or quasi-judicial
functions when such
tribunal, board or officer
has acted without or in
excess of its or his
jurisdiction, or with grave
abuse of discretion
amounting to lack or excess
of jurisdiction, there being
no appeal or any other
plain, speedy and adequate
remedy in the ordinary
course of law (Sec. 1, Rule
65).
Directed against a person
exercising to judicial or
quasi-judicial functions
Object is to correct
Purpose is to annul or
modify the proceedings
Person or entity must have
acted without or in excess of
jurisdiction, or with grave
abuse of discretion.
REQUISITES
CERTIORARI
That the petition is directed
against a tribunal, board or
officer exercising judicial or
quasi-judicial functions;
The tribunal, board or
officer has acted without, or
in excess of jurisdiction or
with abuse of discretion
amounting to lack or excess
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PROHIBITION
Prohibition is an
extraordinary writ
commanding a tribunal,
corporation, board or
person, whether exercising
judicial, quasi-judicial or
ministerial functions, to
desist from further
proceedings when said
proceedings are without or
in excess of its jurisdiction,
or with abuse of its
discretion, there being no
appeal or any other plain,
speedy and adequate
remedy in the ordinary
course of law (Sec. 2, Rule
65).
Directed against a person
exercising judicial or quasi-
judicial functions, or
ministerial functions
Object is to prevent
Purpose is to stop the
proceedings
Person or entity must have
acted without or in excess
of jurisdiction, or with
grave abuse of discretion
PROHIBITION
The petition is directed
against a tribunal,
The plaintiff has a clear
corporation, board or
legal right to the act
person exercising judicial,
demanded;
quasi-judicial, or
ministerial functions;
The tribunal, corporation,
board or person must have
acted without or in excess
of jurisdiction or with
grave abuse of discretion
MANDAMUS
Mandamus is an
extraordinary writ
commanding a tribunal,
corporation, board or
person, to do an act
required to be done:
(a) When he unlawfully
neglects the performance
of an act which the law
specifically enjoins as a
duty, and there is no other
plain, speedy and
adequate remedy in the
ordinary course of law; or
(b) When one unlawfully
excludes another from the
use and enjoyment of a
right or office to which the
other is entitled (Sec. 3,
Rule 65).
Directed against a person
exercising ministerial
duties
Object is to compel
Purpose is to compel
performance of the act
required and to collect
damages
Person must have
neglected a ministerial
duty or excluded another
from a right or office
MANDAMUS
It must be the duty of the
defendant to perform the
act, which is ministerial
and not discretionary,
because the same is

or jurisdiction
There is no appeal or any
plain, speedy and adequate
remedy in the ordinary
course of law.
Accompanied by a certified
true copy of the judgment
or order subject of the
petition, copies of all
pleadings and documents
relevant and pertinent
thereto, and sworn
certification of non-forum
shopping under Rule 46.
amounting to lack of
mandated by law;
jurisdiction;
There is no appeal or any The defendant unlawfully
plain, speedy and neglects the performance
adequate remedy in the of the duty enjoined by
ordinary course of law. law;
Accompanied by a
certified true copy of the
judgment or order subject
There is no appeal or any
of the petition, copies of all
plain, speedy and
pleadings and documents
adequate remedy in the
relevant and pertinent
ordinary course of law.
thereto, and sworn
certification of non-forum
shopping under Rule 46.

 The remedies of appeal and certiorari are mutually exclusive and not alternative or
successive. A party cannot substitute the special civil action of certiorari under Rule 65
of the Rules of Court for the remedy of appeal. The existence and availability of the right
of appeal are antithetical to the availability of the special civil action for certiorari. (HGL
Development Corp. v. Penuela, G.R. No. 181353, June 6, 2016)

CONDITION SINE QUA NON

The general rule is that a motion for reconsideration is a condition sine qua non before a
petition for certiorari may lie, its purpose being to grant an opportunity for the court a quo to
correct any error attributed to it by a re-examination of the legal and factual circumstances of
the case. (People v. Valdez, G.R. Nos. 216007-09, December 8, 2015)

Exceptions:

(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;
(b) where the questions raised in the certiorari proceedings have been duly raised and
passed upon by the lower court, or are the same as those raised and passed upon in
the lower court;
(c) where there is an urgent necessity for the resolution of the question and any further
delay would prejudice the interests of the Government or of the petitioner or the
subject matter of the petition is perishable;
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprived of due process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of
such relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceeding was ex parte or in which the petitioner had no opportunity to
object; and,
(i) where the issue raised is one purely of law or public interest is involved. (Ibid)

WHEN FILED. (Sec. 4)

The petition shall be filed not later than sixty (60) days from notice of the judgment, order or
resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion
is required or not, the sixty (60) day period shall be counted from notice of the denial of said
motion.

No extension of time to file the petition shall be granted except for compelling reason and in no
case exceeding fifteen (15) days. (4a) (Bar Matter No. 803, 21 July 1998; A.M. No. 00-2-03-SC)

WHERE FILED (As amended by AM No. 07-7-12-SC, Dec. 12, 2007)

If the petition relates to an act or an

Regional Trial Court omission of an MTC, corporation, board,
officer or person

18 | P a g e
 In election cases involving an act or an
Commission on Elections
omission of an MTC or RTC
Whether or not in aid of appellate
Court of Appeals or the Sandiganbayan
jurisdiction
Subject to the doctrine of hierarchy of
courts and only when compelling reasons
Supreme Court
exist for not filing the same with the
lower courts
RULE 66. QUO WARRANTO

It is a special civil action commenced by a verified petition against (a) a person who
usurps a public office, position or franchise; (b) a public officer who performs an act
constituting forfeiture of a public office; or (c) an association which acts as a corporation within
the Philippines without being legally incorporated or without lawful authority to do so (Sec. 1).

Quo warranto is a remedy to try disputes with respect to the title to a public office.
Generally, quo warranto proceedings are commenced by the Government as the proper party-
plaintiff. However, under Section 5, Rule 66 of the Rules of Court, an individual may commence
such action if he claims to be entitled to the public office allegedly usurped by another. We
stress that the person instituting the quo warranto proceedings in his own behalf must show
that he is entitled to the office in dispute; otherwise, the action may be dismissed at any stage.
Emphatically, Section 6, Rule 66 of the same Rules requires the petitioner to state in the petition
his right to the public office and the respondent's unlawful possession of the disputed position.

As early as 1905, the Court already held that for a petition for quo warranto to be
successful, the suing private individual must show a clear right to the contested office. His
failure to establish this right warrants the dismissal of the suit for lack of cause of action; it is not
even necessary to pass upon the right of the defendant who, by virtue of his appointment,
continues in the undisturbed possession of his office. (General v. Urro, G.R. No. 191560, March
29, 2011)

DISTINCTIONS: QUO WARRANTO UNDER RULE 66 vs. QUO WARRANTO UNDER

THE ELECTION CODE

QUO WARRANTO (RULE 66) QUO WARRANTO (ELECTION CODE)

Subject of the petition is in relation to an
appointive office;
The issue is the legality of the occupancy of
the office by virtue of a legal appointment;
Petition is brought either to the Supreme
Court, the Court of Appeals or the
Regional Trial Court;
Petitioner is the person entitled to the
office;
When the tribunal declares the candidate-
elect as ineligible, he will be unseated but
The court has to declare who the person
entitled to the office is if he is the
petitioner.
Subject of the petition is in relation to an
elective office;
Grounds relied upon are: (a) ineligibility
to the position; or (b) disloyalty to the
Republic.
May be instituted with the COMELEC by
any voter contesting the election of any
member of Congress, regional, provincial
or city officer; or to the MeTC, MTC or
MCTC if against any barangay official;
Petitioner may be any voter even if he is
not entitled to the office;
the person occupying the second place
will not be declared as the one duly
elected because the law shall consider
only the person who, having duly filed
his certificate of candidacy, received a
plurality of votes.

JUDGMENT IN QUO WARRANTO ACTION

19 | P a g e
When the respondent is found guilty of usurping, intruding into, or unlawfully holding or
exercising a public office, position or franchise, judgment shall be rendered that such
respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as
the case may be, recover his costs. Such further judgment may be rendered determining the
respective rights in and to the public office, position or franchise of the parties to the action as
justice requires (Sec. 9).

RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE

If the petitioner is adjudged to be entitled to the office, he may sue for damages against the
alleged usurper within one (1) year from the entry of judgment establishing his right to the
office in question (Sec. 11).

RULE 67. EXPROPRIATION

(1) Expropriation or the exercise of the power of eminent domain is the inherent right of the
state and of those entities to which the power has been lawfully delegated to condemn private
property to public use upon payment of just compensation. (Republic v. Legaspi, Sr., G.R. No.
177611, April 18, 2012)

MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION

An expropriation proceeding is commenced by the filing of a verified complaint which shall:

(a) State with certainty the right of the plaintiff to expropriation and the purpose thereof;
(b) Describe the real or personal property sought to be expropriated; and
(c) Join as defendants all persons owning or claiming to own, or occupying, any part of the
property or interest therein showing as far as practicable the interest of each
defendant. If the plaintiff cannot with accuracy identify the real owners, averment to
that effect must be made in the complaint (Sec. 1).

TWO STAGES IN EVERY ACTION FOR EXPROPRIATION

a) the condemnation of the property after it is determined that its acquisition will be for a
public purpose or public use; and,
b) the determination of just compensation to be paid for the taking of private property to
be made by the court with the assistance of not more than three commissioners.
(Republic v. Legaspi, Sr., G.R. No. 177611, April 18, 2012)

The nature of these two stages was discussed in the following wise in the case of Municipality of
Biñan vs. Judge Garcia, (259 Phil. 1058, 1068-69 (1989) to wit:

There are two (2) stages in every action for expropriation.

1. The first is concerned with the determination of the authority of the plaintiff to
exercise the power of eminent domain and the propriety of its exercise in the
context of the facts involved in the suit. It ends with an order, if not of dismissal
of the action, "of condemnation declaring that the plaintiff has a lawful right to
take the property sought to be condemned, for the public use or purpose
described in the complaint, upon the payment of just compensation to be
determined as of the date of the filing of the complaint." An order of dismissal, if
this be ordained, would be a final one, of course, since it finally disposes of the
action and leaves nothing more to be done by the Court on the merits. So, too,
would an order of condemnation be a final one, for thereafter, as the Rules
expressly state, in the proceedings before the Trial Court, "no objection to the
exercise of the right of condemnation (or the propriety thereof) shall be filed or
heard.

2. The second phase of the eminent domain action is concerned with the
determination by the Court of "the just compensation for the property sought to

20 | P a g e
 be taken." This is done by the Court with the assistance of not more than three (3)
commissioners. The order fixing the just compensation on the basis of the
evidence before, and findings of, the commissioners would be final, too. It would
finally dispose of the second stage of the suit, and leave nothing more to be done
by the Court regarding the issue. Obviously, one or another of the parties may
believe the order to be erroneous in its appreciation of the evidence or findings of
fact or otherwise. Obviously, too, such a dissatisfied party may seek a reversal of
the order by taking an appeal therefrom.

WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL

PROPERTY, IN RELATION TO RA 8974

Except for the acquisition of right-of-way, site or location for any national government
infrastructure project through expropriation, the expropriator shall have the right to take or
enter upon the possession of the real property involved if he deposits with the authorized
government depositary an amount equivalent to the assessed value of the property for purposes
of taxation to be held by such bank subject to the orders of the court. such deposit shall be in
money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a
government bank of the Philippines payable on demand to the authorized government
depositary (Sec. 2, Rule 67).

NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION

For the acquisition of right-of-way, site or location for any national government infrastructure
project through expropriation, upon the filing of the filing of the complaint, and after due notice
to the defendant, the implementing agency shall immediately pay the owner of the property the
amount equivalent to the sum of (1) 100 percent of the value of the property based on the
current relevant zonal valuation of the BIR; and (2) the value of the improvements and/or
structures as determined under Sec. 7 of RA 8974 (Sec. 4, RA 8974).

ORDER OF EXPROPRIATION

If the objections to and the defenses against the right of the plaintiff to expropriate the property
are overruled, or when no party appears to defend as required by this Rule, the court may issue
an order of expropriation declaring that the plaintiff has a lawful right to take the property
sought to be expropriated, for the public use or purpose described in the complaint, upon the
payment of just compensation to be determined as of the date of the taking of the property or
the filing of the complaint, whichever came first.

A final order sustaining the right to expropriate the property may be appealed by any party
aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just
compensation to be paid.

After the rendition of such an order, the plaintiff shall not be permitted to dismiss or
discontinue the proceeding except on such terms as the court deems just and equitable (Sec. 4).

ASCERTAINMENT OF JUST COMPENSATION

The order of expropriation merely declares that the plaintiff has the lawful to
expropriate the property but contains no ascertainment of the compensation to be paid to the
owner of the property. So upon the rendition of the order of expropriation, the court shall
appoint not more than three (3) commissioners to ascertain the just compensation for the
property. Objections to the appointment may be made within 10 days from service of the order
of appointment (Sec. 5). The commissioners are entitled to fees and their fees shall be taxed as
part of the costs of the proceedings, and all costs shall be paid by the plaintiff except those costs
of rival claimants litigating their claims (Sec. 12).

Where the principal issue is the determination of just compensation, a hearing before the
commissioners is indispensable to allow the parties to present evidence on the issue of just
compensation. Although the findings of the commissioners may be disregarded and the trial

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court may substitute its own estimate of the value, the latter may do so only for valid reasons,
that is where the commissioners have applied illegal principles to the evidence submitted to
them, where they have disregarded a clear preponderance of evidence, or where the amount
allowed is either grossly inadequate or excessive.

It is settled that the taking of private property for public use, to be compensable, need
not be an actual physical taking or appropriation. Indeed, the expropriator's action may be short
of acquisition of title, physical possession, or occupancy but may still amount to a taking.
Compensable taking includes destruction, restriction, diminution, or interruption of the rights
of ownership or of the common and necessary use and enjoyment of the property in a lawful
manner, lessening or destroying its value. It is neither necessary that the owner be wholly
deprived of the use of his property, nor material whether the property is removed from the
possession of the owner, or in any respect changes hands. (National Power Corp. v. Spouses
Malijan, G.R. Nos. 211731 & 211818, December 7, 2016)

APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION

UPON COMMISSIONER’S REPORT

APPOINTMENT. Upon the rendition of the order of expropriation, the court shall appoint not
more than three (3) competent and disinterested persons as commissioners to ascertain and
report to the court the just compensation for the property sought to be taken. The order of
appointment shall designate the time and place of the first session of the hearing to be held by
the commissioners and specify the time within which their report shall be submitted to the
court.

Copies of the order shall be served on the parties. Objections to the appointment of any of the
commissioners shall be filed with the court within ten (10) days from service, and shall be
resolved within thirty (30) days after all the commissioners shall have received copies of the
objections (Sec. 5).

PROCEEDINGS. Before entering upon the performance of their duties, the commissioners shall
take and subscribe an oath that they will faithfully perform their duties as commissioners,
which oath shall be filed in court with the other proceedings in the case. Evidence may be
introduced by either party before the commissioners who are authorized to administer oaths on
hearings before them, and the commissioners shall, unless the parties consent to the contrary,
after due notice to the parties to attend, view and examine the property sought to be
expropriated and its surroundings, and may measure the same, after which either party may, by
himself or counsel, argue the case. The commissioners shall assess the consequential damages to
the property not taken and deduct from such consequential damages the consequential benefits
to be derived by the owner from the public use or purpose of the property taken, the operation
of its franchise by the corporation or the carrying on of the business of the corporation or person
taking the property. But in no case shall the consequential benefits assessed exceed the
consequential damages assessed, or the owner be deprived of the actual value of his property so
taken (Sec. 6).

REPORT. The court may order the commissioners to report when any particular portion of the
real estate shall have been passed upon by them, and may render judgment upon such partial
report, and direct the commissioners to proceed with their work as to subsequent portions of
the property sought to be expropriated, and may from time to time so deal with such property.
The commissioners shall make a full and accurate report to the court of all their proceedings,
and such proceedings shall not be effectual until the court shall have accepted their report and
rendered judgment in accordance with their recommendations. Except as otherwise expressly
ordered by the court, such report shall be filed within sixty (60) days from the date the
commissioners were notified of their appointment, which time may be extended in the
discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies
thereof on all interested parties, with notice that they are allowed ten (10) days within which to
file objections to the findings of the report, if they so desire (Sec. 7).

ACTION UPON THE REPORT. Upon the expiration of the period of ten (10) days referred to in
the preceding section, or even before the expiration of such period but after all the interested
parties have filed their objections to the report or their statement of agreement therewith, the
court may, after hearing, accept the report and render judgment in accordance therewith; or, for

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cause shown, it may recommit the same to the commissioners for further report of facts; or it
may set aside the report and appoint new commissioners; or it may accept the report in part
and reject it in part; and it may make such order or render such judgment as shall secure to the
plaintiff the property essential to the exercise of his right of expropriation, and to the defendant
just compensation for the property so taken (Sec. 8).

RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT

After payment of the just compensation as determined in the judgment, the plaintiff shall have
the right to enter upon the property expropriated and to appropriate the same for the public use
or purpose defined in the judgment or to retain possession already previously made in
accordance with Sec. 2, Rule 67.

"[T]he recognized rule is that title to the property expropriated shall pass from
the owner to the expropriator only upon full payment of the just compensation.
(Republic v. Mupas, G.R. Nos. 181892, 209917, 209696 & 209731, April 19, 2016)

EFFECT OF RECORDING OF JUDGMENT

The judgment entered in expropriation proceedings shall state definitely, by an adequate

description, the particular property or interest therein expropriated, and the nature of the public
use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of
such judgment shall be recorded in the registry of deeds of the place in which the property is
situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for
such public use or purpose (Sec. 13).

RULE 68. FORECLOSURE OF REAL ESTATE MORTGAGE

A real estate mortgage is an accessory contract executed by a debtor in favor of a creditor as

security for the principal obligation. This principal obligation is a simple loan or mutuum
described in Art. 1953, Civil Code. To be a real estate mortgage, the contract must be constituted
on either immovables (real property) or inalienable real rights. If constituted on movables, the
contract is a chattel mortgage (Art. 2124, CC).

 A mortgage contract may have a provision in which the mortgage is a security for past,
present and future indebtedness. This clause known as a dragnet clause or blanket
mortgage clause has its origins in American jurisprudence. The Supreme Court ruled
that mortgages given to secure future advancements are valid and legal contracts
(Prudential Bank vs. Alviar, 464 SCRA 353 reiterated in PNB v. Heirs of Sps. Alonday,
G.R. No. 171865, October 12, 2016)

 There is no question, indeed, that all-embracing or dragnet clauses have been recognized
as valid means to secure debts of both future and past origins. Even so, we have likewise
emphasized that such clauses were an exceptional mode of securing obligations, and
have held that obligations could only be deemed secured by the mortgage if they came
fairly within the terms of the mortgage contract. For the all-embracing or dragnet clauses
to secure future loans, therefore, such loans must be sufficiently described in the
mortgage contract. If the requirement could be imposed on a future loan that was
uncertain to materialize, there is a greater reason that it should be applicable to a past
loan, which is already subsisting and known to the parties. (Ibid)

JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE

(1) If after the trial, the court finds that the matters set forth in the complaint are true, it shall
render a judgment containing the following matters:

(a) An ascertainment of the amount due to the plaintiff upon the mortgage debt or
obligation, including interest and other charges as approved by the court, as well as
costs;
(b) A judgment of the sum found due;
(c) An order that the amount found due be paid to the court or to the judgment obligee
within the period of not less than 90 days nor more than 120 days from the entry of

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 judgment; and
(d) An admonition that in default of such payment the property shall be sold at public
auction to satisfy the judgment (Sec. 2).

(2) The judgment of the court on the above matters is considered a final adjudication of the case
and hence, is subject to challenge by the aggrieved party by appeal or by other post-judgment
remedies.

(3) The period granted to the mortgagor for the payment of the amount found due by the court
is not just a procedural requirement but s substantive right given by law to the mortgagee as his
first chance to save his property from final disposition at the foreclosure sale (De Leon vs.
Ibañez, 95 Phil. 119).

SALE OF MORTGAGED PROPERTY; EFFECT

1. The confirmation of the sale shall divest the rights in the property of all parties to the
action and shall vest their rights in the purchaser, subject to such rights of redemption as
may be allowed by law (Sec. 3). The title vests in the purchaser upon a valid
confirmation of the sale and retroacts to the date of sale (Grimalt vs. Vasquez, 36 Phil.
396).

2. The import of Sec. 3 includes one vital effect: The equity of redemption of the mortgagor
or redemptioner is cut-off and there will be no further redemption, unless allowed by
law (as in the case of banks as mortgagees). The equity of redemption starts from the
ninety-day period set in the judgment of the court up to the time before the sale is
confirmed by an order of the court. once confirmed, no equity of redemption may
further be exercised.

3. The order of confirmation is appealable and if not appealed within the period for appeal
becomes final. Upon the finality of the order of confirmation or upon the expiration of
the period of redemption when allowed by law, the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the possession of the property and he may
secure a writ of possession, upon, motion, from the court which ordered the foreclosure
unless a third party is actually holding the same adversely to the judgment obligor (Sec.
3).

DISPOSITION OF PROCEEDS OF SALE

(1) The proceeds of the sale of the mortgaged property shall, after deducting the costs of the
sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or
residue after paying off the mortgage debt due, the same shall be paid to junior encumbrancers
in the order of their priority. If there be any further balance after paying them or if there be no
junior encumbrancers, the same shall be paid to the mortgagor or any person entitled thereto
(Sec. 4).

DEFICIENCY JUDGMENT

If there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon
motion, shall render judgment against the defendant for any such balance. Execution may issue
immediately if the balance is all due the plaintiff shall be entitled to execution at such time as
the remaining balance shall become due and such due date shall be stated in the judgment (Sec.
6).

INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT

Where the debtor-mortgagor is a non-resident and who at the time of the filing of the action for
foreclosure and during the pendency of the proceedings was outside the Philippines, it is
believed that a deficiency judgment under Sec. 6 would not be procedurally feasible. A
deficiency judgment is by nature in personam and jurisdiction over the person is mandatory.
Having been outside the country, jurisdiction over his person could not have been acquired.

► In an action for judicial foreclosure of mortgage, the factual issues to be resolved are:
whether or not the debtor-mortgagor was in default, and whether the mortgagee has the right
to foreclose the mortgage. (Mortel v. Brundige, G.R. No. 190263, June 15, 2015)

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JUDICIAL FORECLOSURE VERSUS EXTRAJUDICIAL FORECLOSURE
EXTRA-JUDICIAL FORECLOSURE
(ACT 3135)
No complaint is filed;
There is a right of redemption. Mortgagor
has a right of redemption for 1 year from
registration of the sale;
Mortgagee has to file a separate action to
recover any deficiency;
Buyer at public auction becomes absolute
owner only after finality of an action for
consolidation of ownership;
Mortgagee is given a special power of
attorney in the mortgage contract to
foreclose the mortgaged property in case of power of attorney.
default.
EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION
EQUITY OF REDEMPTION
The right of defendant mortgagor to
extinguish the mortgage and retain
ownership of the property by paying the
debt within 90 to 120 days after the entry
of judgment or even after the foreclosure
sale but prior to confirmation.
May be exercised even after the foreclosure
sale provided it is made before the sale is
confirmed by order of the court.
May also exist in favor or other
encumbrances. If subsequent lien holders
are not impleaded as parties in the
foreclosure suit, the judgment in favor of
the foreclosing mortgagee does not bind
the other lien holders. In this case, their
equity of redemption remains
unforeclosed. A separate foreclosure
proceeding has to be brought against them
to require them to redeem from the first
mortgagee or from the party acquiring the
title to the mortgaged property.
If not by banks, the mortgagors merely
have an equity of redemption, which is
simply their right, as mortgagor, to
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JUDICIAL FORECLOSURE (RULE 68)
Complaint is filed with the courts;
No right of redemption except when
mortgagee is a banking institution; equity
of redemption only (90 to 120 days, and
any time before confirmation of
foreclosure sale);
Mortagagee can move for deficiency
judgment in the same action
Buyer at public auction becomes absolute
owner only after confirmation of the sale;
Mortgagee need not be given a special
RIGHT OF REDEMPTION
A right granted to a debtor mortgagor, his
successor in interest or any judicial
creditor or judgment creditor or any
person having a lien on the property
subsequent to the mortgage or deed of
trust under which the property is sold to
repurchase the property within one year
even after the confirmation of the sale and
even after the registration of the
certificate of foreclosure sale.
There is no right of redemption in a
judicial foreclosure of mortgage under
Rule 68. This right of redemption exists
only in extrajudicial foreclosures where
there is always a right of redemption
within one year from the date of sale (Sec.
3, Act 3135), but interpreted by the Court
to mean one year from the registration of
the sale.
General rule: In judicial foreclosures there
is only an equity of redemption which can
be exercised prior to the confirmation of
the foreclosure sale. This means that after
the foreclosure sale but before its
confirmation, the mortgagor may exercise
his right of pay the proceeds of the sale
and prevent the confirmation of the sale.
Exception: there is a right of redemption
if the foreclosure is in favor of banks as
mortgagees, whether the foreclosure be
 judicial or extrajudicial. This right of
redemption is explicitly provided in Sec.
extinguish the mortgage and retain
47 of the General Banking Law of 2000.
ownership of the property by paying the
While the law mentions the redemption
secured debt prior to the confirmation of
period to be one year counted from the
the foreclosure sale.
date of registration of the certificate in the
Registry of Property

RULE 69. PARTITION

Who may file petition?

A person having the right to compel the partition of real estate may do so as provided in this
Rule, setting forth in his complaint the nature and extent of his title and an adequate description
of the real estate of which partition is demanded and joining as defendants all other persons
interested in the property (Sec. 1) or of an estate composed of personal property, or both real
and personal property (Sec. 13)

► The plaintiff is a person who is supposed to be a co-owner of the property or estate sought
to be partitioned. The defendants are all the co-owners. All the co-owners must be joined.
Accordingly, an action will not lie without the joinder of all co-owners and other persons
having interest in the property (Reyes vs. Cordero, 46 Phil. 658).

If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition
of the real estate among all the parties in interest. Thereupon the parties may, if they are able to
agree, make the partition among themselves by proper instruments of conveyance, and the
court shall confirm the partition so agreed upon by all the parties, and such partition, together
with the order of the court confirming the same, shall be recorded in the registry of deeds of the
place in which the property is situated.

A final order decreeing partition and accounting may be appealed by any party aggrieved
thereby.(Sec. 2)

► [T]he provisions on co-ownership under the Civil Code shall apply in the partition of the
properties co-owned. It is stated under Article 1079 of the Civil Code that "partition, in general,
is the separation, division and assignment of a thing held in common among those to whom it
may belong. The thing itself may be divided, or its value." As to how partition may be validly
done, Article 496 of the Civil Code is precise that "partition may be made by agreement between
the parties or by judicial proceedings." The law does not impose a judicial approval for the
agreement to be valid. (Diaz-Salgado v. Anson, G.R. No. 2044494, July 27, 2016)

INSTANCES WHEN A CO-OWNER MAY NOT DEMAND PARTITION AT ANY TIME:

(a) There is an agreement among the co-owners to keep the property undivided for a
certain period of time but not exceeding ten years (Art. 494);
(b) When partition is prohibited by the donor or testator for a period not exceeding 20 years
(Art. 494);
(c) When partition is prohibited by law (Art. 494);
(d) When the property is not subject to a physical division and to do so would render it
unserviceable for the use for which it is intended (Art. 495);
(e) When the condition imposed upon voluntary heirs before they can demand partition
has not yet been fulfilled (Art. 1084).

MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION

The plaintiff shall state in his complaint, the nature and extent of his title, an adequate
description of the real estate of which partition is demanded, and shall join as defendants all
other persons interested in the property (Sec. 1). He must also include a demand for the
accounting of the rents, profits and other income from the property which he may be entitled to
(Sec. 8).

TWO (2) STAGES IN EVERY ACTION FOR PARTITION

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A reading of the Rules will reveal that there are actually three (3) stages in the action, each of
which could be the subject of appeal: (a) the order of partition where the property of the
partition is determined; (b) the judgment as to the accounting of the fruits and income of the
property; and (c) the judgment of partition (Riano, Civil Procedure (A Restatement for the Bar)

ORDER OF PARTITION AND PARTITION BY AGREEMENT

During the trial, the court shall determine whether or not the plaintiff is truly a co-owner of the
property, that there is indeed a co-ownership among the parties, and that a partition is not
legally proscribed thus may be allowed. If the court so finds that the facts are such that a
partition would be in order, and that the plaintiff has a right to demand partition, the court will
issue an order of partition.

The court shall order the partition of the property among all the parties in interest, if after trial it
finds that the plaintiff has the right to partition (Sec. 2).

Partition by agreement. The order of partition is one that directs the parties or co-owners to
partition the property and the parties may make the partition among themselves by proper
instruments of conveyance, if they agree among themselves. If they do agree, the court shall
then confirm the partition so agreed upon by all of the parties, and such partition, together with
the order of the court confirming the same, shall be recorded in the registry of deeds of the place
in which the property is situated (Sec. 2).

Partition by commissioners; Appointment of commissioners, Commissioner’s report; Court

action upon commissioner’s report
Sec. 3. Commissioners to make partition when parties fail to agree. — If the parties are unable
to agree upon the partition, the court shall appoint not more than three (3) competent and
disinterested persons as commissioners to make the partition, commanding them to set off to
the plaintiff and to each party in interest such part and proportion of the property as the court
shall direct.

Sec. 4. Oath and duties of commissioners. — Before making such partition, the commissioners
shall take and subscribe an oath that they will faithfully perform their duties as commissioners,
which oath shall be filed in court with the other proceedings in the case. In making the partition,
the commissioners shall view and examine the real estate, after due notice to the parties to
attend at such view and examination, and shall hear the parties as to their preference in the
portion of the property to be set apart to them and the comparative value thereof, and shall set
apart the same to the parties in lots or parcels as will be most advantageous and equitable,
having due regard to the improvements, situation and quality of the different parts thereof.

Sec. 5. Assignment or sale of real estate by commissioners. — When it is made to appear to the
commissioners that the real estate, or a portion thereof, cannot be divided without prejudice to
the interests of the parties, the court may order it assigned to one of the parties willing to take
the same, provided he pays to the other parties such amounts as the commissioners deem
equitable, unless one of the interested parties asks that the property be sold instead of being so
assigned, in which case the court shall order the commissioners to sell the real estate at public
sale under such conditions and within such time as the court may determine.

Sec. 6. Report of commissioners; proceedings not binding until confirmed. — The

commissioners shall make a full and accurate report to the court of all their proceedings as to
the partition, or the assignment of real estate to one of the parties, or the sale of the same. Upon
the filing of such report, the clerk of court shall serve copies thereof on all the interested parties
with notice that they are allowed ten (10) days within which to file objections to the findings of
the report, if they so desire. No proceeding had before or conducted by the commissioners shall
pass the title to the property or bind the parties until the court shall have accepted the report of
the commissioners and rendered judgment thereon.

Sec. 7. Action of the court upon commissioners’ report. — Upon the expiration of the period of
ten (10) days referred to in the preceding section, or even before the expiration of such period
but after the interested parties have filed their objections to the report or their statement of
agreement therewith, the court may, upon hearing, accept the report and render judgment in
accordance therewith; or, for cause shown, recommit the same to the commissioners for further
report of facts; or set aside the report and appoint new commissioners; or accept the report in

27 | P a g e
part and reject it in part; and may make such order and render such judgment as shall effectuate
a fair and just partition of the real estate, or of its value, if assigned or sold as above provided,
between the several owners thereof.

JUDGMENT AND ITS EFFECTS

The judgment shall state definitely, by metes and bounds and adequate description, the
particular portion of the real estate assigned to each party, the effect of the judgment shall be to
vest in each party to the action in severalty the portion of the real estate assigned to him.

If the whole property is assigned to one of the parties upon his paying to the others the sum or
sums ordered by the court, the judgment shall state the fact of such payment and of the
assignment of the real estate to the party making the payment, and the effect of the judgment
shall be to vest in the party making the payment the whole of the real estate free from any
interest on the part of the other parties to the action.

If the property is sold and the sale confirmed by the court, the judgment shall state the name of
the purchaser or purchasers and a definite description of the parcels of real estate sold to each
purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or
purchasers making the payment or payments, free from the claims of any of the parties to the
action.

A certified copy of the judgment shall in either case be recorded in the registry of deeds of the
place in which the real estate is situated, and the expenses of such recording shall be taxed as
part of the costs of the action (Sec. 11).

PARTITION OF PERSONAL PROPERTY

The provisions of this Rule shall apply to partitions of estates composed of personal property,
or of both real and personal property, in so far as the same may be applicable (Sec. 13).

PRESCRIPTION OF ACTION
Prescription of action does not run in favor of a co-owner or co-heir against his co-owner or co-
heirs as long as there is a recognition of the co-ownership expressly or impliedly (Art. 494).

The action for partition cannot be barred by prescription as long as the co-ownership exists
(Aguirre vs. CA, 421 SCRA 310).

But while the action to demand partition of a co-owned property does not prescribe, a co-owner
may acquire ownership thereof by prescription where there exists a clear repudiation of the co-
ownership and the co-owners are apprised of the claim of adverse and exclusive ownership.

RULE 70. FORCIBLE ENTRY AND UNLAWFUL DETAINER

DEFINITIONS AND DISTINCTION

FORCIBLE ENTRY UNLAWFUL DETAINER
The possession of the defendant is lawful
The possession of the defendant is
from the beginning becomes illegal by
unlawful from the beginning; issue is
reason of the expiration or termination of
which party has prior de facto possession;
his right to the possession of the property;
The law does not require previous demand Plaintiff must first make such demand
for the defendant to vacate; which is jurisdictional in nature;
The plaintiff must prove that he was in
prior physical possession of the premises The plaintiff need not have been in prior
until he was deprived by the defendant; physical possession;
and

DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION REINVINDICATORIA

ACCION PUBLICIANA ACCION REINVINDICATORIA
Accion publiciana is an ordinary civil An action for the recovery of the exercise
proceeding to determine the better right of of ownership, particularly recovery of

28 | P a g e
possession of realty independent of title. It
refers to an ejectment suit filed after the
expiration of one year from the accrual of
possession as an attribute or incident of
the cause of action or from the unlawful
ownership;
withholding of possession of the realty.
(Supapo v. Spouses De Jesus, G.R. No.
198356, April 20, 2015)
The basis of the recovery of possession is
the plaintiff’s real right of possession or jus
The basis for the recovery of possession is
possessionis, which is the right to the
ownership itself.
possession of the real property
independent of ownership.

WHO MAY INSTITUTE PROCEEDING AND WHEN

Subject to the provisions of the next succeeding section, a person deprived of the possession of
any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor,
vendee, or other person against whom the possession of any land or building is unlawfully
withheld after the expiration or termination of the right to hold possession, by virtue of any
contract, express or implied, or the legal representatives or assigns of any such lessor, vendor,
vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or
withholding of possession, bring an action in the proper Municipal Trial Court against the
person or persons unlawfully withholding or depriving of possession, or any person or persons
claiming under them, for the restitution of such possession, together with damages and costs.
(SEC. 1)

LESSOR TO PROCEED AGAINST LESSEE ONLY AFTER DEMAND.

Unless otherwise stipulated, such action by the lesser shall be commenced only after demand to
pay or comply with the conditions of the lease and to vacate is made upon the lessee, or by
serving written notice of such demand upon the person found on the premises if no person be
found thereon, and the lessee fails to comply therewith after fifteen (15) days in the case of land
or five (5) days in the case of buildings. (Sec. 2)

SUMMARY PROCEDURE.

All actions for forcible entry and unlawful detainer, irrespective of the amount of damages or
unpaid rentals sought to be recovered, shall be governed by the summary procedure hereunder
provided. (sec. 3)

WHEN DEMAND IS NECESSARY

Unless there exists a stipulation to the contrary, an unlawful detainer case shall be commenced
only after the demand to pay or comply with the conditions of the lease and to vacate is made
upon the lessee (Sec. 2). The requirement for a demand implies that the mere failure of the
occupant to pay rentals or his failure to comply with the conditions of the lease does not ipso
facto render his possession of the premises unlawful. It is the failure to comply with the
demand that vests upon the lessor a cause of action.

The demand may be in the form of a written notice served upon the person found in the
premises. The demand may also be made by posting a written notice on the premises if no
person can be found thereon (Sec. 2). It has been ruled, however, that the demand upon a tenant
may be oral (Jakihaca vs. Aquino, 181 SCRA 67). Sufficient evidence must be adduced to show
that there was indeed a demand like testimonies from disinterested and unbiased witnesses.

PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION

The court may grant preliminary injunction, in accordance with the provisions of Rule 58, to
prevent the defendant from committing further acts of dispossession against the plaintiff. A
possessor deprived of his possession through forcible entry or unlawful detainer may, within
five (5) days from the filing of the complaint, present a motion in the action for forcible entry or
unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him
in his possession. The court shall decide the motion within thirty (30) days from the filing
thereof (Sec. 15)

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► It bears emphasizing that in ejectment suits, the only issue for resolution is the physical or
material possession of the property involved, independent of any claim of ownership by any of
the party litigants. However, the issue of ownership may be provisionally ruled upon for the
sole purpose of determining who is entitled to possession de facto. Therefore, the provisional
determination of ownership in the ejectment case cannot be clothed with finality. (Bradford
United Church of Christ, Inc. v. Ando, G.R. No. 195669, May 30, 2016)

► We reiterate that our pronouncement in this case on the issue of ownership is merely
provisional and only for the purpose of resolving the issue of who between the parties has the
right of possession of the subject property. The petitioner or the respondents may still question
the validity of the documents used by the other party to support their claim of ownership, and
to recover possession and ownership of the subject property in a proper suit. (Baluyo y Gamora
v. Spouses Dela Cruz, G.R. No. 197058, October 14, 2015)

HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT

(1) Defendant must take the following steps to stay the execution of the judgment:

a) Perfect an appeal;
b) File a supersedeas bond to pay for the rents, damages and costs accruing down to the
time of the judgment appealed from; and
c) Deposit periodically with the RTC, during the pendency of the appeal, the adjudged
amount of rent due under the contract or if there be no contract, the reasonable value of
the use and occupation of the premises (Sec. 19).

Exceptions to the rule:

a) Where delay in the deposit is due to fraud, accident, mistake, or excusable
negligence;
b) Where supervening events occur subsequent to the judgment bringing about a
material change in the situation of the parties which makes execution
inequitable; and
c) Where there is no compelling urgency for the execution because it is not justified
by the circumstances.

(2)     Prohibited pleadings and motions:

a) Motion to dismiss the complaint except on the ground of lack of jurisdiction over the
subject matter, or failure to comply with section 12;
b) Motion for a bill of particulars;
c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
d) Petition for relief from judgment;
e) Motion for extension of time to file pleadings, affidavits or any other paper;
f) Memoranda;
g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued
by the court;
h) Motion to declare the defendant in default;
i) Dilatory motions for postponement;
j) Reply;
k) Third-party complaints;
l) Interventions

RULE 71. CONTEMPT

Contempt of court has been defined as a willful disregard or disobedience of a public authority.
In its broad sense, contempt is a disregard of, or disobedience to, the rules or orders of a
legislative or judicial body or an interruption of its proceedings by disorderly behavior or
insolent language in its presence or so near thereto as to disturb its proceedings or to impair the
respect due to such a body. In its restricted and more usual sense, contempt comprehends a
despising of the authority, justice, or dignity of a court. The phrase contempt of court is generic,
embracing within its legal signification a variety of different acts.

The power to punish for contempt is inherent in all courts, and need not be specifically granted

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by statute. It lies at the core of the administration of a judicial system. Indeed, there ought to be
no question that courts have the power by virtue of their very creation to impose silence,
respect, and decorum in their presence, submission to their lawful mandates, and to preserve
themselves and their officers from the approach and insults of pollution. The power to punish
for contempt essentially exists for the preservation of order in judicial proceedings and for the
enforcement of judgments, orders, and mandates of the courts, and, consequently, for the due
administration of justice.The reason behind the power to punish for contempt is that respect of
the courts guarantees the stability of their institution; without such guarantee, the institution of
the courts would be resting on a very shaky foundation. ( G.R. No. 155849, LORENZO
SHIPPING CORPORATION VS. DISTRIBUTION MANAGEMENT ASSOCIATION OF THE
PHILIPPINES, August 31, 2011)

The power to punish for contempt is inherent in all courts, and need not be specifically granted
by statute. It lies at the core of the administration of a judicial system. Indeed, there ought to be
no question that courts have the power by virtue of their very creation to impose silence,
respect, and decorum in their presence, submission to their lawful mandates, and to preserve
themselves and their officers from the approach and insults of pollution. The power to punish
for contempt essentially exists for the preservation of order in judicial proceedings and for the
enforcement of judgments, orders, and mandates of the courts, and, consequently, for the due
administration of justice. The reason behind the power to punish for contempt is that respect of
the courts guarantees the stability of their institution; without such guarantee, the institution of
the courts would be resting on a very shaky foundation. (Ibid)

KINDS OF CONTEMPT; PURPOSE AND NATURE OF EACH

CIVIL CONTEMPT CRIMINAL CONTEMPT

It is a conduct directed against the
It is the failure to do something ordered to
authority and dignity of the court or a
be done by a court or a judge for the
judge acting judicially; it is an obstructing
benefit of the opposing party therein and is
the administration of justice which tends
therefore and offense against the party in
to bring the court into disrepute or
whose behalf the violated order was made;
disrespect;
The purpose is to punish, to vindicate the
The purpose is to compensate for the
authority of the court and protect its
benefit of a party;
outraged dignity;
Should be conducted in accordance with
The rules of procedure governing
the principles and rules applicable to
contempt proceedings or criminal
criminal cases, insofar as such procedure
prosecutions ordinarily are inapplicable to
is consistent with the summary nature of
civil contempt proceedings.
contempt proceedings.

Proceedings for contempt are sui generis, in nature criminal, but may be resorted to in civil as
well as criminal actions, and independently of any action. They are of two classes, the criminal
or punitive, and the civil or remedial. A criminal contempt consists in conduct that is directed
against the authority and dignity of a court or of a judge acting judicially, as in unlawfully
assailing or discrediting the authority and dignity of the court or judge, or in doing a duly
forbidden act. A civil contempt consists in the failure to do something ordered to be done by a
court or judge in a civil case for the benefit of the opposing party therein. It is at times difficult
to determine whether the proceedings are civil or criminal. In general, the character of the
contempt of whether it is criminal or civil is determined by the nature of the contempt involved,
regardless of the cause in which the contempt arose, and by the relief sought or dominant
purpose. The proceedings are to be regarded as criminal when the purpose is primarily
punishment, and civil when the purpose is primarily compensatory or remedial. Where the
dominant purpose is to enforce compliance with an order of a court for the benefit of a party in
whose favor the order runs, the contempt is civil; where the dominant purpose is to vindicate
the dignity and authority of the court, and to protect the interests of the general public, the
contempt is criminal. Indeed, the criminal proceedings vindicate the dignity of the courts, but
the civil proceedings protect, preserve, and enforce the rights of private parties and compel
obedience to orders, judgments and decrees made to enforce such rights. (Ibid)

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 DIRECT CONTEMPT INDIRECT CONTEMPT
It is not committed in the presence of the
In general is committed in the presence of
court, but done at a distance which tends
or so near the court or judge as to obstruct
to belittle, degrade, obstruct or embarrass
or interrupt the proceedings before it;
the court and justice;
Acts constituting indirect contempt are:
(a) Misbehavior an officer of a court in the
performance of his official duties or in his
official transactions;
(b) Disobedience of or resistance to a
lawful writ, process, order, or judgment
of a court, including the act of a person
who, after being dispossessed or ejected
Acts constituting direct contempt are:
from any real property by the judgment
a) Misbehavior in the presence of or so
or process of any court of competent
near the court as to obstruct or interrupt
jurisdiction, enters or attempts or induces
the proceedings before it;
another to enter into or upon such real
b) Disrespect toward the court;
property, for the purpose of executing
c) Offensive personalities towards others;
acts of ownership or possession, or in any
d) Refusal to be sworn as a witness or to
manner disturbs the possession given to
answer as a witness;
the person adjudged to be entitled
e) Refusal to subscribe an affidavit or
thereto;
deposition when lawfully required to do
(c) Any abuse of or any unlawful
so (Sec. 1);
interference with the processes or
f) Acts of a party or a counsel which
proceedings of a court not constituting
constitute willful and deliberate forum
direct contempt under section 1 of this
shopping (Sec. 1, Rule 7);
Rule;
g) Unfounded accusations or allegations or
(d) Any improper conduct tending,
words in a pleading tending to embarrass
directly or indirectly, to impede, obstruct,
the court or to bring it into disrepute (Re:
or degrade the administration of justice;
Letter dated 21 Feb. 2005 of Atty. Noel
(e) Assuming to be an attorney or an
Sorreda, 464 SCRA 32);
officer of a court, and acting as such
without authority;
(f) Failure to obey a subpoena duly
served;
(g) The rescue, or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process of
a court held by him (Sec. 3);

Contempt of court is of two kinds, namely: direct contempt, which is committed in the presence
of or so near the judge as to obstruct him in the administration of justice; and constructive or
indirect contempt, which consists of willful disobedience of the lawful process or order of the
court.

The punishment for the first is generally summary and immediate, and no process or evidence
is necessary because the act is committed in facie curiae. The inherent power of courts to punish
contempt of court committed in the presence of the courts without further proof of facts and
without aid of a trial is not open to question, considering that this power is essential to preserve
their authority and to prevent the administration of justice from falling into disrepute; such
summary conviction and punishment accord with due process of law. There is authority for the
view, however, that an act, to constitute direct contempt punishable by summary proceeding,
need not be committed in the immediate presence of the court, if it tends to obstruct justice or to
interfere with the actions of the court in the courtroom itself. Also, contemptuous acts
committed out of the presence of the court, if admitted by the contemnor in open court, may be
punished summarily as a direct contempt, although it is advisable to proceed by requiring the
person charged to appear and show cause why he should not be punished when the judge is
without personal knowledge of the misbehavior and is informed of it only by a confession of
the contemnor or by testimony under oath of other persons.

In contrast, the second usually requires proceedings less summary than the first. The
proceedings for the punishment of the contumacious act committed outside the personal
knowledge of the judge generally need the observance of all the elements of due process of law,

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that is, notice, written charges, and an opportunity to deny and to defend such charges before
guilt is adjudged and sentence imposed.

Plainly, therefore, the word summary with respect to the punishment for contempt refers not to
the timing of the action with reference to the offense but to the procedure that dispenses with
the formality, delay, and digression that result from the issuance of process, service of
complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting
briefs, submission of findings, and all that goes with a conventional court trial. (Ibid)

REMEDY AGAINST DIRECT CONTEMPT; PENALTY

The penalty for direct contempt depends upon the court which the act was committed;
(a) If the act constituting direct contempt was committed against an RTC or a court of
equivalent or higher rank, the penalty is a fine not exceeding 2,000 pesos or
imprisonment not exceeding 10 days, or both;
(b) If the act constituting direct contempt was committed against a lower court, the
penalty is a fine not exceeding 200 pesos or imprisonment not exceeding one (1) day, or
both (Sec. 1)’;

A person adjudged in direct contempt may not appeal therefrom. His remedy is a petition for
certiorari or prohibition directed against the court which adjudged him in direct contempt (Sec.
2).

REMEDY AGAINST INDIRECT CONTEMPT; PENALTY

(1) The punishment for indirect contempt depends upon the level of the court against which the
act was committed;

(a) Where the act was committed against an RTC or a court of equivalent or higher rank,
he may be punished by a fine not exceeding 30,000 pesos or imprisonment not
exceeding 6 months, or both;
(b) Where the act was committed against a lower court, he may be punished by a fine not
exceeding 5,000 pesos or imprisonment not exceeding one month, or both. Aside
from the applicable penalties, if the contempt consists in the violation of a writ of
injunction, TRO or status quo order, he may also be ordered to make complete
restitution to the party injured by such violation of the property involved or such
amount as may be alleged and proved (Sec. 7);
(c) Where the act was committed against a person or entity exercising quasi-judicial
functions, the penalty imposed shall depend upon the provisions of the law which
authorizes a penalty for contempt against such persons or entities.
(2) The person adjudged in indirect contempt may appeal from the judgment or final order of
the court in the same manner as in criminal cases. The appeal will not however have the effect
of suspending the judgment if the person adjudged in contempt does not file a bond in an
amount fixed by the court from which the appeal is taken. This bond is conditioned upon his
performance of the judgment or final order if the appeal is decided against (Sec. 11).

HOW CONTEMPT PROCEEDINGS ARE COMMENCED

(1) Proceedings for indirect contempt may be initiated motu proprio by the court against which
the contempt was committed by an order or any other formal charge requiring the respondent
to show cause why he should not be punished for contempt.

In all other cases, charges for indirect contempt shall be commenced by a verified petition with
supporting particulars and certified true copies of documents or papers involved therein, and
upon full compliance with the requirements for filing initiatory pleadings for civil actions in the
court concerned. If the contempt charges arose out of or are related to a principal action
pending in the court, the petition for contempt shall allege that fact but said petition shall be
docketed, heard and decided separately, unless the court in its discretion orders the
consolidation of the contempt charge and the principal action for joint hearing and decision
(Sec. 4).

ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT

(1) After a charge in writing has been filed, and an opportunity given to the respondent to
comment thereon within such period as may be fixed by the court and to be heard by himself or

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counsel, a person guilty of any of the following acts may be punished for indirect contempt:

(a) Misbehavior an officer of a court in the performance of his official duties or in his
official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court,
including the act of a person who, after being dispossessed or ejected from any real
property by the judgment or process of any court of competent jurisdiction, enters or
attempts or induces another to enter into or upon such real property, for the purpose
of executing acts of ownership or possession, or in any manner disturbs the
possession given to the person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or proceedings of a court
not constituting direct contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade
the administration of justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such without
authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by
virtue of an order or process of a court held by him (Sec. 3).

(2) Failure by counsel to inform the court of the death of his client constitutes indirect contempt
within the purview of Sec. 3, Rule 71, since it constitutes an improper conduct tending to
impede the administration of justice.

WHEN IMPRISONMENT SHALL BE IMPOSED

When the contempt consists in the refusal or omission to do an act which is yet in the power of
the respondent to perform, he may be imprisoned by order of the court concerned until he
performs it (Sec. 8). Indefinite incarceration may be resorted to where the attendant
circumstances are such that the non-compliance with the court order is an utter disregard of the
authority of the court which has then no other recourse but to use its coercive power. When a
person or party is legally and validly required by a court to appear before it for a certain
purpose, and when that requirement is disobeyed, the only remedy left for the court is to use
force to bring the person or party before it.

The punishment is imposed for the benefit of a complainant or a party to a suit who has been
injured aside from the need to compel performance of the orders or decrees of the court, which
the contemnor refuses to obey although able to do so. In effect, it is within the power of the
person adjudged guilty of contempt to set himself free.

CONTEMPT AGAINST QUASI-JUDICIAL BODIES

The rules on contempt apply to contempt committed against persons or entities exercising
quasi-judicial functions or in case there are rules for contempt adopted for such bodies or
entities pursuant to law, Rule 71 shall apply suppletorily (Sec. 12).

Quasi-judicial bodies that have the power to cite persons for indirect contempt can only do so
by initiating them in the proper RTC. It is not within their jurisdiction and competence to decide
the indirect contempt cases. The RTC of the place where contempt has been committed shall
have jurisdiction over the charges for indirect contempt that may be filed (Sec. 12).

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