Part II 2.

Meaning of the term “provisional” judge, and may lift the same at any time as circumstances
may warrant
I. Basic Concepts on Provisional Remedies Tan v. Andre. The term “provisional” means temporary
preliminary or tentative. Par. 3. The applicant shall be exempted from the posting
A. General Concept on Provisional Remedies of a bond for the issuance of a TEPO
3. Purpose of Provisional Remedies
 In the preparation of the pleading by the party, 2. Part I, Rule I, Sec. 4. Environmental Protection
the provisional remedies (Rule 57-61) may be  See definition of Provisional Remedies in Part. II, Order (EPO) – refers to an order issued by the
alleged therein since it can be availed of: Sec. 1(a) court directing or enjoining any person or
government agency to perform or desist from
(a) At the commencement of the action, or 4. Kinds of Provisional Remedies under the Rules performing an act in order to protect, preserve
(b) At the time of the filing of the complaint or (Rule 57-61) or rehabilitate the environment.
(c) By motion.
a. Preliminary Attachment (Rule 57) b. Rules on Writ of Amparo
1. Provisional Remedy Defined b. Preliminary Injunction (Rule 58)
c. Receivership (Rule 59) Sec. 14. Interim Reliefs — Upon filing of the petition or at
a. Provisional Remedies are temporary, auxiliary, d. Replevin (Rule 60) anytime before final judgment, the court, justice or judge
and ancillary remedies resorted to by litigants: e. Support pendente lite (Rule 61) may grant any of the following reliefs:

a. To preserve or protect their rights or Note: The provisional remedies under the Rules are not (a) Temporary Protection Order (TPO) – The court,
interests while the main action is exclusive since there are other provisional remedies justice or judge, upon motion or motu proprio,
pending; available under existing rules issued by the SC. may order that the (a) petitioner or (b) the
b. To secure judgment; aggrieved party and (c) any member of the
c. To preserve status quo; 5. Other Provisional Remedies under the Rules immediate family be protected (1) in a
d. To preserve the subject matter of Promulgated by the SC government agency or (2) by an accredited
action person or (3) private institution capable of
a. Rules of Procedure in Environmental Cases keeping and securing their safety. If the
b. Calderon v. Roxas. Provisional remedies are petitioner is an organization, association or
writs and processes available during the 1. Part II, Rule 2, Sec. 8. Issuance of Temporary institution referred to in Sec. 3(c) of this Rule,
pendency of the action which may be resorted to Environmental Protection Order (TEPO) – the protection may be extended to the officers
by a litigant to preserve and protect certain involved.
rights and interests therein pending rendition, Par. 1. If it appears from the verified complaint with a
and for purposes of the ultimate effects, of a prayer for the issuance of an Environmental Protection The Supreme Court shall accredit the persons
final judgment in the case. Order (EPO) that the matter is of (a) extreme urgency and and private institutions that shall extend
(b) the applicant will suffer grave injustice and irreparable temporary protection to the petitioner or the
They are provisional because they constitute injury (GIII), the executive judge of the multiple sala court aggrieved party and any member of the
temporary measures availed of during the before raffle or the presiding judge of a single-sala court as immediate family, in accordance with guidelines
pendency of the action the case may be, may issue ex parte a TEPO effective for which it shall issue.
only 72 hours from date of receipt of the TEPO by the part
They are ancillary because they are mere or person enjoined. The accredited persons and private institutions
incidents in and are dependent upon the result shall comply with the rules and conditions that
of the main action. Within the said period, the court where the case is may be imposed by the court, justice or judge.
assigned, shall conduct a summary hearing to determine
The subject orders on the matter of support whether the TEPO may be extended until the termination (b) Inspection Order (IO) — The court, justice or
pendente lite are but incident to the main action of the case. judge, upon verified motion and after due
for declaration of nullity of marriage. hearing, may order any person in possession or
Par. 2. The court where the case is assigned shall control of a designated land or other property,
Auxiliary it is an additional relief aside from periodically monitor the existence of acts that are the to permit entry for the purpose of inspecting,
what is prayed for in the main action subject matter of the TEPO even if issued by the executive measuring, surveying, or photographing (IMSP)
the property or any relevant object or operation The court, justice or judge shall prescribe other 1. Protection Order - is an order issued by the
thereon. conditions to protect the constitutional rights of court to prevent further acts of violence against
all the parties. women and their children, their family or
The motion shall state in detail the place or household members, and to grant other
places to be inspected. It shall be supported by (d) Witness Protection Order – The court, justice or necessary relief. Its purpose is to safeguard the
affidavits or testimonies of witnesses having judge, upon motion or motu proprio, may refer offended parties from further harm, minimize
personal knowledge of the enforced the witnesses to the Department of Justice for any disruption in their daily life and facilitate the
disappearance or whereabouts of the aggrieved admission to the Witness Protection, Security opportunity and ability to regain control of their
party. and Benefit Program, pursuant to Republic Act life.
No. 6981. 2. Temporary protection order (TPO) - refers to
If the motion is opposed on the ground of (a) the protection order issued by the court on the
national security or (b) of the privileged nature The court, justice or judge may also refer the filing of the application and after ex parte
of the information, the court, justice or judge witnesses to other government agencies, or to determination of its need. It may also be issued
may conduct a hearing in chambers to accredited persons or private institutions in the course of a hearing, motu proprio or upon
determine the merit of the opposition. capable of keeping and securing their safety. motion
3. Barangay Protection Order (BPO) - refers to the
The movant must show that the inspection order c. Rule on Writ of Habeas Data protection order issued by the Punong Barangay,
is necessary to establish the right of the or in his absence the Barangay Kagawad,
aggrieved party alleged to be threatened or Sec. 14. Return; Filing – In case the respondent fails to file ordering the perpetrator to desist from
violated. a return, the court, justice, or judge shall proceed to hear committing acts of violence against the family or
the petition ex parte, granting the petitioner such relief as household members particularly women and
The inspection order shall specify the person or the petition may warrant unless the court in its discretion their children under Sections 5a and 5b of R.A.
persons authorized to make the inspection and requires the petitioner to submit evidence. No. 9262.
the date, time, place and manner of making the
inspection and may prescribe other conditions to a. Inspection Order g. Alternative Dispute Resolution (A.M. No. 07-11-
protect the constitutional rights of all parties. b. Production Order 08-SC)
The order shall expire five (5) days after the date
of its issuance, unless extended for justifiable d. Declaration of Absolute Nullity of Void Rule 5.6. Type of interim measure of protection that a
reasons. Marriages and Annulment of Voidable court may grant - The following, among others, are the
Marriages (AM No. 02-11-12) interim measures of protection that a court may grant:
(c) Production Order – The court, justice or judge,
upon verified motion and after due hearing, may 1. Spousal Support a. Preliminary injunction directed against a party to
order any person in possession, custody or 2. Child Support arbitration;
control of any designated documents, papers, 3. Child Custody b. Preliminary attachment against property or
books, accounts, letters, photographs, objects or 4. Visitation Rights garnishment of funds in the custody of a bank or
tangible things, or objects in digitized or 5. Hold Departure Order a third person;
electronic form, which constitute or contain 6. Order of Protection c. Appointment of a receiver;
evidence relevant to the petition or the return, d. Detention, preservation, delivery or inspection
to produce and permit their inspection, copying e. Custody of Minors and Writ of Habeas Corpus in of property; or,
or photographing by or on behalf of the movant. Relation to Custody of Minor (AM No. 03-04-04) e. Assistance in the enforcement of an interim
measure of protection granted by the arbitral
The motion may be opposed on the ground of 1. Provisional Order Awarding Custody tribunal, which the latter cannot enforce
(a) national security or (b) of the privileged 2. Temporary Visitation Rights effectively.
nature of the information, in which case the 3. Hold Departure Order
court, justice or judge may conduct a hearing in 4. Protection Order h. Civil forfeiture, assets privatization, and
chambers to determine the merit of the freezing of monetary instrument, property or
opposition. f. Violence Against Women and Children (AM No. proceeds representing, involving, relation to an
04-10-11) unlawful activity or money laundering offenses
under R.A. 9160, as amended (A.M. No. 05-11- pending, to be levied upon the property or properties of disposed of to prevent its being found or taken
04) the defendant therein, same to be held thereafter by the by the applicant or an authorized person;
sheriff as security for the satisfaction of whatever (d) In an action against a party who has been guilty
Sec. 11. Ex parte issuance of provisional asset judgment might be rendered in said action in favor of the of a fraud in contracting the debt or incurring
preservation order - Where the executive judge of the attaching creditor against the defendant. the obligation upon which the action is brought,
regional trial court or, in his absence, the vice-executive or in the performance thereof;
judge or, in their absence, any judge of the regional trial 2. Nature of Attachment: Purely Statutory (e) In an action against a party who has removed or
court available in the same station, has determined that Remedy disposed of his property, or is about to do so,
probable cause exists on the basis of allegations of a with intent to defraud his creditors; or
verified petition sufficient in form and substance, with a Cia. General de Tabacos de Filipinas v. Trinchera. It is a (f) In an action against a party who does not reside
prayer for the issuance of an asset preservation order, that purely statutory remedy and the provisions thereof must and is not found in the Philippines, or on whom
the monetary instrument, property, or proceeds subject of be strictly construed. summons may be served by publication. (1a)
the petition are in any way related to an unlawful activity
as defined in Sec. 3(i) of R.A. 9160, as amended by R.A. No court has authority to issue a writ of attachment a. Mere change in the Name of the Plaintiff in the
9194, the court may issue ex parte a provisional asset without express statutory permission. Amended Complaint Does Not Affect the
preservation order effective immediately forbidding any Validity of the Attachment
transaction, withdrawal, deposit, transfer, removal, 3. Grounds for the Issuance of a Preliminary
conversion, concealment or other disposition of the Attachment Freres v. Macias. The change made in the names of the
subject monetary instrument, property, or proceeds. plaintiffs by the amended complaint, substituting for the
Rule 57, Sec. 1. Grounds upon which attachment may partnership "Duhart Freres & Cie.," the names of Pedro
Such order shall be effective for a period of twenty (20) issue — Duhart and Eugenio Duhart, who according to said
days from the respective dates of service to respondent or amended complaint are the sole collective partners, and
any person acting in his behalf, and upon each covered (1) At the commencement of the action or at the managing partners according to the evidence, does
institution or government agency in accordance with Sec. (2) Any time before entry of judgment, not constitute a substantial alternation of the party
14 of this Rule. plaintiff, and does not affect the validity and legal force of
(A) A plaintiff or the attachment of the defendants' property, issued in
6. Courts which can Grant Provisional Remedies (B) Any proper party may have the property of the favor of said "Duhart Freres & Cie.," upon a prior
adverse party attached as security for the complaint, which writ still subsist as well in favor of the
The (1) SC; (2) CA; (3) RTC and (4) MeTC/MTC/MCTC can satisfaction of any judgment that may be original plaintiff "Duhart Freres & Cie.," as for the same
issue the following provisional remedies: recovered in the following cases: entity in the persons of its own sole collective partners,
the plaintiffs Pedro Duhart and Eugenio Duhart.
1. Preliminary Injunction (a) In an action for the recovery of a specified
2. Preliminary Attachment amount of money or damages, other than moral b. Attachment is Not Available if the Property is in
3. Receivership and exemplary, on a cause of action arising from the Possession of the Attaching Creditor
4. Replevin law, contract, quasi-contract, delict or quasi-
delict against a party who is about to depart Calo, et. al. v. Roldan. Inasmuch as attachment may be
Note: Support pendente lite can only be issued by the from the Philippines with intent to defraud his issued only in the cases or actions specifically stated in
RTC/Family Court since an action for support can only be creditors; Sec. 1 of Rule 57, in order that defendant may not dispose
filed with it being an action subject of pecuniary (b) In an action for money or property embezzled or of his property attached, and thus secure the satisfaction
estimation. fraudulently misapplied or converted to his own of any judgment that the plaintiff may recover from
use by a public officer, or an officer of a defendant, the plaintiff may not move for the attachment
II. Kinds of Provisional Remedies Under the Rules corporation, or an attorney, factor, broker, of a property subject of litigation between the parties or
agent, or clerk, in the course of his employment claimed by plaintiff as his and of which he is in actual
A. Preliminary Attachment (Rule 57) as such, or by any other person in a fiduciary possession.
capacity, or for a willful violation of duty;
1. Preliminary Attachment Defined (c) In an action to recover the possession of c. Attachment is Available if the Defendant is
property unjustly or fraudulently taken, detained Disposing his Properties
Virata v. Aquino. Preliminary Attachment is a provisional or converted, when the property, or any part
remedy issued upon order of the court where the action is thereof, has been concealed, removed, or
Lee Go v. CA. The prayer for preliminary attachment must satisfied, but it is superior to the sale in favor of Top Rate
also be sustained, especially as the writ was issued on the which must first discharge the attachment lien by paying Hence, these issues are not to be taken up in resolving the
strength of the apprehension that Go was clandestinely the petitioner's judgment before it may redeem the motion to discharge the writ of attachment, lest we run
disposing of his properties to evade payment of his properties from the mortgage of the consortium of banks. the risk of deciding or prejudging the main case and force
indebtedness to the private respondent. a trial on the merits at this stage of the proceedings
g. Properties of a Non-Resident Defendant in the
The subsequent lifting of the writ upon the filing of a Philippines can be attached 4. Issuance and Contents of an Order of
counterbond by the petitioners did not ipso facto make Attachment
the writ unlawful. Asiatic Petroleum v. Quico. Properties (a) located in the
Philippines owned by a (b) non-resident defendant are Rule 57, Sec. 2. Issuance and contents of order — An
d. Lien Obtained by Attachment is Equivalent to a within the reach of the courts through the process of order of attachment may be issued either:
“Vested Interest” attachment or garnishment.
(1) ex parte or
Government v. Mercado. It has been held that the lien It is well to emphasize in this connection the general (2) upon motion with notice and hearing by:
obtained by attachment stands upon as high equitable proposition that all property within a State is subject to
grounds as a mortgage lien: the jurisdiction of its courts, and they have the right to (1) the court in which the action is pending, or
adjudicate title thereto, to enforce liens thereupon, and to (2) by the Court of Appeals or
“The lien or security obtained by an attachment, even subject it to the payment of the debts of its owners, (3) the Supreme Court,
before judgment, is a fixed and positive security, a specific whether resident or not.
lien, and, although whether it will ever be made available and must require the sheriff of the court to attach so much
to the creditor depends on contingencies, its existence is The sovereign power may lay hands on any and all persons of the property in the Philippines of the party against
in no way contingent, conditional, or inchoate. It is a and property within its borders, and where, as in our case, whom it is issued, not exempt from execution, as may be
vested interest, an actual and substantial security, the functions of government are departmentalized, what sufficient to satisfy the applicant's demand,
affording specific security for satisfaction of the debt put is within the reach of executive and legislative action, must
in suit, which constitutes a cloud on the legal title, and is also be within the reach of the judiciary. unless such party (a) makes deposit or (b) gives a bond as
as specific as if created by virtue of a voluntary act of the hereinafter provided in an amount equal to that fixed in
debtor and stands upon a high equitable grounds as a The modern tendency in this regard is to make no the order, which may be the amount sufficient to satisfy
mortgage lien. distinction between mobility and immobility of property the applicant's demand or the value of the property to be
established by the time-honored principles of lex rei sitae attached as stated by the applicant, exclusive of costs.
Kuenzle and Stereiff v. Villanueva. Although it is and mobilia personam sequuntur.
sometimes said that a lien created by an attachment is Several writs may be issued at the same time to the
inchoate, as it awaits the judgment and must fall with the We find it neither necessary nor fruitful to indulge in any sheriffs of the courts of different judicial regions.
suit, it is, nevertheless, a lien in a real sense; it places the characterization as to whether the present proceedings
attaching creditor will thereby be protected. should be described as those in rem or quasi in rem. Such a. Instances where the SC can issue Writ of
characterization is of no legal significance in this Attachment
e. Preference of Attachment over an Unsecured connection provided the situs of the res is clear, the
Debt procedure for attachment duly followed, and reasonable Cia. General Tabacos de Filipinas v. Trinchera. A member
notice and opportunity to be heard presumptively had by of the SC has the power to issue a writ of attachment not
Kuenzle and Stereiff v. Villanueva. Not even a judgment virtue of the publication of the summons. only in the cases actually pending before the SC but also in
on an unsecured debt could prevail over a prior those proceedings in the CFI (now RTC)
attachment. h. Unenforceability of the Contract and the
Veracity of Allegation of Fraud Proper in the b. Notice and Hearing Required if Attachment is
f. Attachment is Inferior to the Mortgage of the Main Cases not in the Motion to Dissolve by Motion
Consortium Bank Attachment
Cosiquen v. CA. A hearing should have been conducted on
Quezon Bearing & Parts Corp. v. CA. The petitioner's Municipality of Hagonoy, Bulacan v. Dumdum, Jr. The the application of attachment, the court adding that
attachment lien on the properties is inferior to the unenforceability of the contract and the veracity of private general allegations do not qualify for the issuance of the
mortgage held by the consortium of banks whose claim, in respondent’s allegation of fraud, suffice it to say that these writ.
the event of foreclosure proceedings, must first be pertain to the merits of the main action.
c. Order of Attachment Must be Implemented judgment and execution in the action, only so much of the
Within Reasonable Time Guzman v. Catolicom. An affidavit is not defective because property in the Philippines of the party against whom the
it is “to the best of my knowledge and belief” writ is issued, not exempt from execution, as may be
Campbell v. Wilson. Although Rule 57, Sec. 2 does not fix a sufficient to satisfy the applicant's demand, unless the
period within which an order for preliminary attachment b. What Must be Established in the Affidavit? former makes a deposit with the court from which the writ
should be carried out, the same should be executed within is issued, or gives a counter-bond executed to the
a reasonable period of time.  Rule 57, Sec. 3 applicant, in an amount equal to the bond fixed by the
court in the order of attachment or to the value of the
d. Order of Attachment Not Carried After the Hathaway v. Davis. One of the facts to be stated by the property to be attached, exclusive of costs.
Issuance of Writ of Execution with Force and plaintiff in his affidavit is that he has sufficient cause of
Effect action, and the question is WON the defendant may No levy on attachment pursuant to the writ issued under
traverse such statement in a motion for discharge of Sec. 2 hereof shall be enforced unless it is preceded, or
Vega v. Dizon. An order for preliminary attachment which attachment. contemporaneously accompanied, by
has not been carried out until the time of the issuance of
the writ of execution of the judgment, is implicitly without The rule is that the failure of the complaint to state a 1. Service of summons
force and effect. cause of action is ground for discharging the attachment. 2. Together with a copy of the complaint
3. The application for attachment
5. Requirements of Affidavit and Bond for the c. Property of the Defendant not Covered by 4. The applicant's affidavit and bond, and
Issuance of an Order of Attachment Foreclosure may be Attached; Requirement of 5. The order and writ of attachment, on the
Allegation in the Affidavit defendant within the Philippines.
Sec. 3. Affidavit and bond required — An order of
attachment shall be granted only when it appears by the Reyes v. CFI of Batangas. In an action for foreclosure of The requirement of prior or contemporaneous service of
(a) affidavit of the applicant, or (b) of some other person mortgage, attachment on property of the defendant not summons shall not apply where:
who personally knows the facts: covered by the mortgage is proper upon showing by
affidavit that the value of the mortgaged property is not 1. The summons could not be served personally or
(a) that a sufficient cause of action exists sufficient to cover the debt and the debtor has disposed or by substituted service despite diligent efforts, or
(b) that the case is one of those mentioned in Sec. 1 is about to dispose of his property with intent to defraud 2. The defendant is a resident of the Philippines
hereof his creditors. temporarily absent therefrom, or
(c) that there is no other sufficient security for the 3. The defendant is a non-resident of the
claim sought to be enforced by the action, and 6. Conditions of the Bond Philippines, or
(d) that the amount due to the applicant, or the 4. The action is one in rem or quasi in rem. (5a)
value of the property the possession of which he Rule 57, Sec. 4. Condition of applicant's bond — The party
is entitled to recover, is as much as the sum for applying for the order must thereafter give a bond a. Remedy of Party Against Whom the Writ Was
which the order is granted above all legal executed to the adverse party in the amount fixed by the Issued
counterclaims. court in its order granting the issuance of the writ,
(e) The affidavit, and the bond required by the next conditioned that: Rule 57, Sec. 5. Remedy of 1. Make a deposit with
succeeding Sec., must be duly filed with the Party Against Whom the the court from which
court before the order issues. (3a) 1. The latter will pay all the costs which may be Writ Was Issued the writ is issued
adjudged to the adverse party and 2. Give a counter-bond
a. Affidavit in Support of an Application for 2. All damages which he may sustain by reason of executed to the
Attachment by a Person who has Personal the attachment, if the court shall finally adjudge applicant, in an
Knowledge of the Facts is Sufficient that the applicant was not entitled thereto. (4a) amount equal to the
bond fixed by the
Central Capiz v. Salas. An affidavit in support of an 7. Manner of Attaching Property court in the order of
application for an attachment, made by one having attachment or to the
knowledge of the facts is sufficient, and is not vitiated by Sec. 5. Manner of attaching property — value of the property
the circumstances that in the complaint itself the to be attached,
allegation with respect to the ground of attachment is Par. 1. The sheriff enforcing the writ shall without delay exclusive of costs
stated as being made upon information. and with all reasonable diligence attach, to await
b. Simultaneous Service of Summons d. Valid Levy Required; Seizure of Property
Attached Not Automatic 9. Attachment of Real and Personal Property:
H.B. Zachry Co. Inc. v. CA. The procedure is to have Recording
simultaneous service of the writs of summons and Traders Royal Bank v. CA. A valid levy is therefore
attachment. required. Seizure of the property is not automatic with the Sec. 7. Attachment of real and personal property;
issuance of the order of attachment. recording thereof — Real and personal property shall be
The trial court has unlimited power to issue the writ upon attached by the sheriff executing the writ in the following
the commencement of the action even before it acquires e. Service of the Copy of the writ an Essential manner:
jurisdiction over the person of the defendant, but Element of Validtity of Attachment
enforcement thereof can only be validly done after it (a) Real property, or growing crops thereon, or any
shall have acquired such jurisdiction. Chua Pua v. Register of Deeds of Batangas. The interest therein, standing upon the record of the
requirement as to service of the copy of the writ on the registry of deeds of the province in the name of
Sievert v. CA. Ordinarily, the prayer for attachment is in defendant if he can be found in the province should be the party against whom attachment is issued, or
the complaint itself. complied with as an essential element to the validity of the not appearing at all upon such records, or
attachment lien. Without service, there can be no valid belonging to the party against whom attachment
Where, however, the petition for attachment is in a attachment lien. is issued and held by any other person, or
discrete pleading, such petition must be served either standing on the records of the registry of deeds
simultaneously with the service of summons and a copy f. Attachment of Property Discretionary Upon the in the name of any other person, by:
of the main complaint, or after jurisdiction over the Sheriff: Exception
defendant has already been acquired. 1. Filing with the registry of deeds a copy of the
People v. Hernandez. The sheriff is vested with the order, together with a description of the
If a court has no jurisdiction over the subject matter or discretion of choosing the property to be attached property attached, and
over the person of the defendant in the principal action, it provided that is not exempt. 2. A notice that it is attached, or that such real
simply has no jurisdiction to issue the attachment which is property and any interest therein held by or
an ancillary remedy. This does not mean, however, that he should necessarily standing in the name of such other person are
attach such properties as are held in high esteem by the attached, and
Neither service of summons nor voluntary appearance of attachment debtor, particularly when the latter places 3. By leaving a copy of such order, description, and
the defendant was had in the case. other properties at his disposal, the value of which is notice with the occupant of the property, if any,
greatly in excess of the amount of the judgment under or with such other person or his agent if found
c. Officer Must Take Actual Possession of the execution. within the province.
Property to Constitute Valid Levy on 4. Where the property has been brought under the
Attachment The law does not forbid the execution debtor, in case he operation of either the Land Registration Act or
has sufficient properties to answer for the payment of the the Property Registration Decree, the notice
Walker v. McMicking. To constitute a valid levy of an judgment, to point out to the sheriff which of such shall contain a reference to the number of the
attachment, the officer levying it must take actual properties should be attached and sold to satisfy the certificate of title, the volume and page in the
possession of the property attached as far as under the judgment. registration book where the certificate is
circumstances is practicable. registered, and the registered owner or owners
8. Duty of the Sheriff thereof.
He must put himself in possession to, and must assert and,
in fact, enforce admission over the property adverse to Rule 57, Sec. 6. Sheriff's return — After enforcing the writ, The registrar of deeds must:
and exclusive of the attachment debtor, and such property the sheriff must likewise without delay:
must be in his substantial presence and possession. 1. Index attachments filed under this Section in the
(a) Make a return thereon to the court from which names of the applicant, the adverse party, or the
This does not mean, of course that the attaching officer the writ issued, with a full statement of his person by whom the property is held or in whose
may not, under an arrangement satisfactory to himself, proceedings under the writ and name it stands in the records.
put anyone in possession of the property for the purpose (b) A complete inventory of the property attached, 2. If the attachment is not claimed on the entire
of guarding it, but he cannot in his way relive himself from together with any counter-bond given by the area of the land covered by the certificate of
liability to the parties interested in the said attachment. party against whom attachment is issued, and title, a description sufficiently accurate for the
(c) Serve copies thereof on the applicant. (6a) identification of the land or interest to be
affected shall be included in the registration of (c) Stocks or shares, or an interest in stocks or latter, supposing he will ever avail himself thereof, will
such attachment; shares, of any corporation or company, by: become a debtor instead of a creditor.

a. Attachment Not Allowed in Secured 1. Leaving with the president or managing agent To attach such overdraft account would be tantamount to
Transaction thereof compelling a person, by judicial process, to borrow funds
2. A copy of the writ, and with which to pay his judgment creditor.
Salgado v. CA. Attachment is not allowed for a secured 3. A notice stating that the stock or interest of the
transaction because one requirement in the issuance party against whom the attachment is issued is 4.c. Remedies of Judgment Creditor If Execution is
thereof is that the debtor does not have sufficient security. attached in pursuance of such writ; Unsatisfied

b. Presentation of the Original Title NOT Required 3.a. Stocks can be Attached if Within the Philippines Tec Bi & Co. v. Chartered Bank of India. After execution
in Registering Attachment unsatisfied against the judgment debtor, the judgment
Perkins v. Dizon. Stocks and shares of a defendant may be creditor may bring an action at law against a garnishee
PNB v. Fernandez. In registering an attachment or a sale of attached if their situs is within the Philippines. The situs of upon whom notice was served under an attachment
attached property, it is not necessary for the sheriff or the corporation stocks and shares is within the Philippines if issued in the action before judgment; and it is not
purchaser at auction to present the owner’s duplicate of the corporation is domiciled therein. necessary before bringing such action that the garnishee
the certificate of title to the register of deeds. should be required to appear and answer, or that an order
(d) Debts and credits, including bank deposits, should be obtained authorizing the action against the
c. Monthly Salary of an Employee Cannot be financial interest, royalties, commissions and garnishee; and no equitable circumstance need be shown
Attached Before the End of the Month other personal property not capable of manual to justify the suit, which is upon a direct liability of the
delivery, by: garnishee to the plaintiff.
Garcia v. Castillo. The monthly salary of an employee
cannot be attached before the end of the month in which 1. Leaving with the person owing such debts, or The liability may be enforced either in the same cause
it is to be earned as it is not then money due. having in his possession or under his control, where the garnishment was ordered, or in a separate
such credits or other personal property, or with action.
d. Money Judgment in Favor of Judgment Debtor his agent, a copy of the writ, and
in Another Case Can be Attached 2. Notice that the debts owing by him to the party 4.d. Garnishee Must Admit That the Property Belongs to
against whom attachment is issued, and the the Defendant
Tayabas Land Co. v. Sharruf. A money judgment rendered credits and other personal property in his
in favor of the judgment debtor in another case should be possession, or under his control, belonging to Bucra Corp. v. Macadaeg. Rule 57 which provides that the
attached in the same way as a debt is attached under the said party, are attached in pursuance of such court may after the examination of debtor of the
above provision. writ; defendant, "order personal property capable of manual
delivery belonging to the defendant, in the possession of
Although such judgment constitutes property in the sense 4.a. Attachment of Credits and Debts the person so required to attend before the court, to be
that it can be made liable for the payment of the judgment delivered to the clerk of the court, sheriff, or other officer
debtor’s obligation, nevertheless, being a property which Asia Banking Corp. v. Elser. In the attachment of debts on such terms as may be just," is applicable only in cases
is incapable of manual delivery, it cannot be sold by the and credits, not only the debtor of the judgment debtor, where indebtedness is admitted by the garnishee, or a
sheriff at public auction. or whoever holds the credit, should be notified, but also personal property capable of manual delivery belonging
the judgment debtor himself, in order that the sale of his to the defendant is in the possession of the person so
The procedure for its attachment is by leaving with the right to said debt or credit may be valid. required to attend before the court.
person against whom the judgment was rendered a copy
of the order of attachment and a notice that the judgment 4.b. Overdraft Account of the Judgment Debtor with a But if the garnishee does not admit the indebtedness or
was rendered a copy of the order of attachment and a Bank Not Subject to Attachment makes a legal or equitable claim to the property or
notice that the judgment is attached in pursuance of such amount in his hands as in the present case, the
order. Nava v. San Jose. An overdraft account of the judgment controversy must be determined by action, as provided
debtor with a bank is not subject to attachment. in Rule 39, Sec. 45.
(b) Personal property capable of manual delivery, by
taking and safely keeping it in his custody, after Under the above provision, it is plain that an overdraft is 4.e. In Rescission of Contract, Attachment is not Available
issuing the corresponding receipt therefor. not a credit in favor if the judgment debtor, because the
Pineyro v. Utor. If the complaint in the case where the 11. Effect of Attachment of Interest in Property possession or under his control any credit or other
attachment was issued asks not for the recovery of a debt Belonging to the Estate of a Decedent personal property belonging to such party:
but for the rescission of a contract, the writ of attachment
must be discharged. Rule 57, Sec. 9. Effect of attachment of interests in 1. May be required to attend before the court in
property belonging to the estate of a decedent — The which the action is pending, or
(d) The interest of the party against whom attachment of the interest of an heir, legatee, or devisee 2. Before a commissioner appointed by the court,
attachment is issued in property belonging to in the property belonging to the estate of a decedent shall: and be examined on oath respecting the same.
the estate of the decedent, whether as heir, 3. The party whose property is attached may also
legatee, or devisee, by: 1. Not impair the powers of the executor, be required to attend for the purpose of giving
administrator, or other personal representative information respecting his property, and may be
1. Serving the executor or administrator or other of the decedent over such property for the examined on oath.
personal representative of the decedent with a purpose of administration. 4. The court may, after such examination, order
copy of the writ and notice that said interest is 2. Such personal representative, however, shall personal property capable of manual delivery
attached. report the attachment to the court when any belonging to him, in the possession of the person
2. A copy of said writ of attachment and of said petition for distribution is filed, and in the order so required to attend before the court, to be
notice shall also be filed in the office of the clerk made upon such petition, distribution may be delivered to the clerk of the court or sheriff on
of the court in which said estate is being settled awarded to such heir, legatee or devisee, but the such terms as may be just, having reference to
and served upon the heir, legatee or devisee property attached shall be ordered delivered to any lien thereon or claim against the same, to
concerned. the sheriff making the levy, subject to the claim await the judgment in the action.
of such heir, legatee, or devisee, or any person
If the property sought to be attached is in custodia legis: claiming under him. (9a) 13. Rule on Sale of Property After Levy on
Attachment before Entry of Judgment
1. A copy of the writ of attachment shall be filed a. Right, Title and Interest on the Estate May be
with the proper court or quasi-judicial agency, Subject of Attachment Sec. 11. When attached property may be sold after levy
and on attachment and before entry of judgment —
2. Notice of the attachment served upon the Cook v. Escobar. When a person dies and his properties Whenever it shall be made to appear to the court in which
custodian of such property. (7a) are placed under judicial administration, during the the action is pending, upon hearing with notice to both
pendency of such administration, the right, title, and parties:
10. Effect of Attachment of Debts, Credits and All interest which the heirs, devisees or legatees may have in
Other Similar Properties the properties may be attached subject to the 1. That the property attached is perishable, or
administration of the estate. 2. That the interests of all the parties to the action
Rule 57, Sec. 8. Effect of attachment of debts, credits and will be subserved by the sale thereof,
all other similar personal property — All persons having in In other words, the attachment is, in all respects, subject
their possession or under their control any credits or other and inferior to the administration of estate. the court may order such property to be sold at public
similar personal property belonging to the party against auction in such manner as it may direct, and the proceeds
whom attachment is issued, or owing any debts to him, at The administrator retains control over the properties and of such sale to be deposited in court to abide the
the time of service upon them of the copy of the writ of will still have the power to sell them, if necessary, for the judgment in the action.
attachment and notice as provided in the last preceding payments of debt of the deceased.
Section, shall: 14. Discharge of Attachment Upon Giving of
12. Rule on the Examination of a Party Whose Counter-bond
1. Be liable to the applicant for the amount of such Property is Attached and Persons Indebted to
credits, debts or other similar personal property, Him and the Delivery of the Property to the Sec. 12. Discharge of attachment upon giving counter-
until the attachment is discharged, or Sheriff bond — After a writ of attachment has been enforced, the
2. Any judgment recovered by him is satisfied, party whose property has been attached, or the person
unless such property is delivered or transferred, Sec. 10. Examination of party whose property is attached appearing on his behalf, may move for the discharge of the
or such debts are paid, to the clerk, sheriff, or and persons indebted to him or controlling his property; attachment wholly or in part on the security given.
other proper officer of the court issuing the delivery of property to sheriff — Any person owing debts
attachment. (8a) to the party whose property is attached or having in his The court shall, after due notice and hearing, order the
discharge of the attachment if the movant makes (a) a
cash deposit, or (b) files a counter-bond executed to the c. Bond may only be Filed by the Defendant or a. What is the Other Remedy of the Party Against
attaching party with the clerk of the court where the Party Whose Property Has been Attached Whom Attachment is Issued
application is made, in an amount equal to that fixed by
the court in the order of attachment, exclusive of costs. Tiaoqui, et. al. v. Jugo. (a) Only a defendant, (b) or the Rule 57, Sec. 13 Defendant: Motion to quash writ of
But if the attachment is sought to be discharged with party whose property has been attached, and not a attachment
respect to a particular property, the counter-bond shall be stranger, may apply for the discharge of an attachment.
equal to the value of that property as determined by the 1. The same was improperly
court. d. Purpose of Posting of the Bond or irregularly issued
2. That the bond is insufficient
In either case, the cash deposit or the counter-bond shall Anzures v. Alto Surety & Insurance Co. Under Rule 57, 3. If the attachment is
secure the payment of any judgment that the attaching Sec. 12, the bond filed for the discharge of an attachment excessive, the discharge
party may recover in the action. is (1) “to secure the payment of any judgment that the shall be limited to the
attaching creditor may recover in the action and “stands in excess
A notice of the deposit shall forthwith be served on the the place of the property so released”
attaching party. Plaintiff: File comment/opposition by
Hence, although there was a judgment by compromise counter-affidavits or other evidence
Upon the discharge of an attachment in accordance with approved by the court, the bond should not have been in addition to that on which the
the provisions of this Sec., the property attached, or the cancelled inasmuch as the judgment entered into by attachment was made.
proceeds of any sale thereof, shall be delivered to the compromise of the parties remained unsatisfied.
party making the deposit or giving the counter-bond, or to b. Burden of Proof Lies with the Creditor if Motion
the person appearing on his behalf, the deposit or 15. Discharge of Attachment on Other Grounds to Quash is Filed
counter-bond aforesaid standing in place of the property
so released. Sec. 13. Discharge of attachment on other grounds.— The Filinvest Credit Corp. v. Relova. Where the attachment is
party whose property has been ordered attached may file challenged for having been illegally or improperly issued,
Should such counter-bond for any reason be found to be a motion with the court in which the action is pending, there must be a hearing, with the burden of proof to
or become insufficient, and the party furnishing the same before or after levy or even after the release of the sustain the writ being on the attaching creditor.
fail to file an additional counter-bond, the attaching party attached property, for an order to set aside or discharge
may apply for a new order of attachment. (12a) the attachment on the ground: c. Family Home Exempt From Execution Are
Exempt from Attachment and Forced Sale
a. What is the Remedy of the Party Whose 1. That the same was improperly or irregularly
Property Has Been Attached issued or enforced, or Art. 155 of the FC provides:
2. That the bond is insufficient.
Rule 57, Sec. Defendant: Motion to Discharge Art. 155. The family home shall be exempt from execution,
12 Attachment wholly or in part on the If the attachment is excessive, the discharge shall be forced sale or attachment except:
security given limited to the excess.
(1) For nonpayment of taxes;
b. Lifting of the Writ Upon Filing of the Counter- If the motion be made on affidavits on the part of the (2) For debts incurred prior to the constitution of
bond Does not make the Writ Unlawful movant but not otherwise, the attaching party may the family home;
oppose the motion by counter-affidavits or other evidence (3) For debts secured by mortgages on the premises
Lee Go v. CA. The prayer for preliminary attachment must in addition to that on which the attachment was made. before or after such constitution; and
be sustained, especially as the writ was issued on the (4) For debts due to (a) laborers, (b) mechanics, (c)
strength of the apprehension that the defendant is After due notice and hearing, the court shall order the architects, (d) builders, (e) materialmen and (f)
clandestinely disposing of his properties to evade payment setting aside or the corresponding discharge of the others who have rendered service or furnished
of his indebtedness to the plaintiff. attachment if it appears that it was improperly or material for the construction of the building.
irregularly issued or enforced, or that the bond is
The subsequent lifting of the writ upon the filing of a insufficient, or that the attachment is excessive, and the d. Duty of the Court in the Determination of the
counter-bond by the defendant did not ipso facto make defect is not cured forthwith. Exemption of Family Home
the writ unlawful.
Josef v. Santos. The family home is a real right which is and since no custom, practice or agreement destructive of (l) The right to receive legal support, or money or
gratuitous, inalienable and free from attachment, the family shall be recognized or given effect the trial property obtained as such support, or any
constituted over the dwelling place and the land on which court’s failure to observe the proper procedure to pension or gratuity from the Government;
it is situated, which confers upon a particular family the determine the veracity of the petitioner’s allegations, is (m) Properties specially exempted by law.
right to enjoy such properties, which must remain with the unjustified.
person constituting it and his heirs. It cannot be seized by But no article or species of property mentioned in this Sec.
creditors except in certain special cases. e. Properties Exempt from Execution shall be exempt from execution issued:

Upon being apprised that the property subject of Rule 39, Sec. 13. Property exempt from execution — (a) Upon a judgment recovered for its price or
execution allegedly constitutes petitioner’s family home, Except as otherwise expressly provided by law, the (b) Upon a judgment of foreclosure of a mortgage
the trial court should have observed the following following property, and no other, shall be exempt from thereon. (12a)
procedure: execution:
f. What is the Remedy of the Attaching Party?
1. Determine if petitioner’s obligation to (a) The judgment obligor's family home as provided
respondent falls under the exceptions under Art. by law, or the homestead in which he resides,  File a motion to quash attachment
155 of the FC; and land necessarily used in connection  Comment/Opposition on the motion
2. Make an inquiry into the veracity of petitioner’s therewith;
claim that the property was his family home; (b) Ordinary tools and implements personally used g. Writ of Attachment is Discharged if Judgment is
conduct an ocular inspection of the premises; an by him in his trade, employment, or livelihood; Already Final and Executory
examination of the title; an interview of the (c) Three horses, or three cows, or three carabaos,
members of the community where the alleged or other beasts of burden, such as the judgment Olib v. Pastoral. A writ of attachment is discharged only if
family home is located, in order to determine if obligor may select necessarily used by him in his the judgment that dissolves it is already final and
petitioner actually resided within the premises ordinary occupation; executory.
of the claimed family home; order a submission (d) His necessary clothing and articles for ordinary
of photographs of the premises, depositions personal use, excluding jewelry; h. Remedy of Certiorari an Available Remedy In
and/or affidavits of the proper (e) Household furniture and utensils necessary for Case Irregular and Excess of Jurisdiction in the
individuals/parties; or a solemn examination of housekeeping, and used for that purpose by the Issuance of Writ of Attachment
the petitioner, his children and other witnesses. judgment obligor and his family, such as the
At the same time, the respondent is given the judgment obligor may select, of a value not Leung Ben v. O’Brien. Where a CFI issues an attachment
opportunity to cross-examine and present exceeding one hundred thousand pesos; for which there is no statutory authority it is acting
evidence to the contrary. (f) Provisions for individual or family use sufficient irregularly and in excess of jurisdiction in the sense
3. If the property is accordingly found to constitute for four months; necessary to justify the SC in entertaining an application
petitioner’s family home, the court should (g) The professional libraries and equipment of for a writ of certiorari and the quashal of the attachment.
determine: judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen, Grave abuse of Defendant: Petition for certiorari
a. If the obligation sued upon was contracted or teachers, and other professionals, not exceeding discretion by under Rule 65
incurred prior to, or after, the effectivity of the three hundred thousand pesos in value; acting irregularly
FC; (h) One fishing boat and accessories not exceeding on the writ of
b. If petitioner’s spouse is still alive, as well as if the total value of one hundred thousand pesos attachment
there are other beneficiaries of the family home; owned by a fisherman and by the lawful use of
c. If the petitioner has more than one residence for which he earns his livelihood; Olsen v. Olsen. A court although it may have unquestioned
the purpose of determine which of them, if any,, (i) So much of the salaries, wages, or earnings of jurisdiction over the principal cause of action may,
is his family home the judgment obligor for his personal services nevertheless, act irregularly or in excess of its jurisdiction
d. Its actual location and value, for the purpose of within the four months preceding the levy as in granting the auxiliary remedy.
applying the provisions of Art. 157 and 160 of are necessary for the support of his family;
the FC. (j) Lettered gravestones; In such case, the party aggrieved may prosecute a
(k) Monies, benefits, privileges, or annuities proceeding by writ of certiorari in the SC.
The protection of the family home is just as necessary in accruing or in any manner growing out of any life
the preservation of the family as a basic social institution, insurance;
i. When it a Writ of Attachment Considered National Treasurer out of the funds to be
Improperly or Irregularly Issued? Rule 57, Sec. 14. Proceedings where property claimed by appropriated for the purpose. (14a)
third person — If the property attached is claimed by any
De la Rama v. Sajo. A writ of attachment may be said to person other than the party against whom attachment had a. Garnishment is Improper if There is No Waiver
have been improperly or irregularly issued when the been issued or his agent, and such person: of Immunity of the Government Agency
plaintiff’s affidavit or bond or both are defective.
1. Makes an affidavit of his title thereto, or right to Pacific Products, Inc. v. Ong. The garnishment is not
When the facts of some of them, stated in the plaintiff’s the possession thereof, proper where there was no waiver from immunity from
affidavit, are shown by the defendant to be untrue. 2. Stating the grounds of such right or title, and suit when it entered into a business transaction because
3. Serves such affidavit upon the sheriff while the the contract was not entered into in the exercise of a
j. Counter-bond is Not Necessary if Writ of latter has possession of the attached property, proprietary function. The Bureau is a service bureau, not
Attachment Was Improperly Issued and engaged in business.
4. A copy thereof upon the attaching party,
D.P. Lube Oil Marketing Center, Inc. v. Nicolas. If a writ of 17. Rule In Case of Satisfaction of Judgment out of
attachment was improperly issued, a counter-bond to lift The sheriff shall not be bound to keep the property under Property Attached
it is not necessary. attachment, unless the attaching party or his agent, on
demand of the sheriff, shall file a bond approved by the Rule 57, Sec. 15. Satisfaction of judgment out of property
The counter-bond is required only if the debtor/defendant court to indemnify the third-party claimant in a sum not attached, return of sheriff — If judgment be recovered by
wishes to lift the attachment without any ground at all. less than the value of the property levied upon. the attaching party and execution issue thereon, the
sheriff may cause the judgment to be satisfied out of the
Benitez v. IAC. A writ of attachment may be discharged In case of disagreement as to such value, the same shall be property attached, if it be sufficient for that purpose in the
pursuant to Rule 57, Sec. 13, without necessity of filing a decided by the court issuing the writ of attachment. No following manner:
cash deposit or counter-bond. claim for damages for the taking or keeping of the
property may be enforced against the bond unless the (a) By paying to the judgment obligee the proceeds
Relief is available from baseless and unjustifiable action therefor is filed within one hundred twenty (120) of all sales of perishable or other property sold in
attachments, as upon false allegations. days from the date of the filing of the bond. pursuance of the order of the court, or so much
as shall be necessary to satisfy the judgment;
There was no hearing on the motion to discharge the The sheriff shall not be liable for damages for the taking or (b) If any balance remains due, by selling so much of
attachment. There was grave abuse of discretion keeping of such property to any such third-party claimant, the property, real or personal, as may be
amounting to lack or excess of jurisdiction. if such bond shall be filed. necessary to satisfy the balance, if enough for
that purpose remain in the sheriff's hands, or in
k. Dismissal of the Action Would Cause the Nothing herein contained shall prevent such claimant or those the clerk of the court;
Discharge of Attachment any third person from vindicating his claim to the (c) By collecting from all persons having in their
property, or prevent the attaching party from claiming possession credits belonging to the judgment
Caiji v. Phil. Sugar Estate Dev. Co. If the action in which an damages against a third-party claimant who filed a obligor, or owing debts to the latter at the time
attachment was issued is dismissed, the dismissal has the frivolous or plainly spurious claim, in the same or a of the attachment of such credits or debts, the
effect of discharging the attachment. separate action. amount of such credits and debts as determined
by the court in the action, and stated in the
l. In Case of Motion to Discharge, the Burden of When the writ of attachment is issued in favor of the judgment, and paying the proceeds of such
Proof Rests on the Attaching Creditor to Sustain Republic of the Philippines, or any officer duly collection over to the judgment obligee.
the Writ representing it,
The sheriff shall forthwith make a return in writing to the
Filinvest Credit Corp. v. Relova. Where the attachment is 1. The filing of such bond shall not be required, and court of his proceedings under this Sec. and furnish the
challenged for having been illegally or improperly issued, 2. In case the sheriff is sued for damages as a result parties with copies thereof. (15a)
there must be a hearing, with the burden of proof to of the attachment, he shall be represented by
sustain the writ being on the attaching creditor the Solicitor General, and 18. Rule In Case Balance Due Collected Upon
3. If held liable therefor, the actual damages Execution: Excess Delivered to the Judgment
16. Proceedings Where Property Claimed By Third adjudged by the court shall be paid by the Debtor
Person
Rule 57, Sec. 16. Balance due collected upon an b. Liability of the Surety on the Counter-Bond –
execution; excess delivered to judgment obligor — If Conditioned on the Finality of Judgment Sec. 20. Claim for damages on account of improper,
after realizing upon all the property attached, including irregular or excessive attachment — An application for
the proceeds of any debts or credits collected, and United Pulp and Paper Co. Inc. v. Acropolis Central damages on account of improper, irregular or excessive
applying the proceeds to the satisfaction of the judgment Guaranty. The liability of the sureties was fixed and attachment must be filed:
less the expenses of proceedings upon the judgment any conditioned on the finality of the judgment rendered
balance shall remain due, the sheriff must proceed to regardless of whether the decision was based on the 1. Before the trial or
collect such balance as upon ordinary execution. consent of the parties or on the merits. 2. Before appeal is perfected or
3. Before the judgment becomes executory, with
Whenever the judgment shall have been paid, the sheriff, A judgment entered on a stipulation is nonetheless a due notice to the attaching party and his surety
upon reasonable demand: judgment of the court because consented to by the or sureties setting forth the facts showing his
parties. right to damages and the amount thereof. Such
1. Must return to the judgment obligor the damages may be awarded only after proper
attached property remaining in his hands, and 20. Rule in the Disposition of the Money Deposited hearing and shall be included in the judgment on
2. Any proceeds of the sale of the property the main case.
attached not applied to the judgment. (16a) Rule 57, Sec. 18. Disposition of money deposited —
Where the party against whom attachment had been a. When to File a Claim For damages?
19. Rule in Case of Recovery Upon the Counter- issued has deposited money instead of giving counter-
Bond bond, it shall be: Advent Capital and Finance Corp. v. Young. Rule 57, Sec.
20 essentially allows the application to be filed at any time
Rule 57, Sec. 17. Recovery upon the counter-bond — 1. Applied under the direction of the court to the before the judgment becomes executory.
When the judgment has become executory: satisfaction of any judgment rendered in favor of
the attaching party, and It should be filed in the same case that is the main action,
1. The surety or sureties on any counter-bond 2. After satisfying the judgment the balance shall and with the court having jurisdiction over the case at the
given pursuant to the provisions of this Rule to be refunded to the depositor or his assignee. time of the application.
secure the payment of the judgment shall 3. If the judgment is in favor of the party against
become charged on such counter-bond and whom attachment was issued, the whole sum If the judgment of the appellate court be favorable to the
2. Bound to pay the judgment obligee upon deposited must be refunded to him or his party against whom the attachment was issued:
demand the amount due under the judgment, assignee.
which amount may be recovered from such 1. He must claim damages sustained during the
surety or sureties after notice and summary 21. Rule in Case of Disposition of Attached Property pendency of the appeal by filing an application in
hearing in the same action. (17a) Where the Judgment is in Favor of the Party the appellate court, with notice to the party in
Against Whom the Attachment Was Issued whose favor the attachment was issued or his
a. Requirements for the Surety to be Liable on the surety or sureties, before the judgment of the
Counter-Bond Rule 57, Sec. 19. Disposition of attached property where appellate court becomes executory.
judgment is for party against whom attachment was 2. The appellate court may allow the application to
United Pulp and Paper Co. v. Acropolis Central Guaranty issued — If judgment be rendered against the attaching be heard and decided by the trial court.
Corp. It is evident that a surety on a counter-bond given to party:
secure the payment of a judgment becomes liable for the Nothing herein contained shall prevent the party against
payment of the amount due upon: (1) demand made upon 1. All the proceeds of sales and money collected or whom the attachment was issued from recovering in the
the surety; and (2) notice and summary hearing on the received by the sheriff, under the order of same action the damages awarded to him from any
same action attachment, and property of the attaching party not exempt from execution
2. All property attached remaining in any such should the bond or deposit given by the latter be
Accordingly, the filing by UPPC of the Motion to Order officer's hands, shall be delivered to the party insufficient or fail to fully satisfy the award. (20a)
Surety to Pay Amount of Counter-Bond was already a against whom attachment was issued, and
demand upon Acropolis, as surety, for the payment of the 3. The order of attachment discharged. a. Attachment is Not Available in a Suit for
amount due, pursuant to the terms of the bond. Damages if it is Contingent
22. Rules for the Claim for Damages on Account of
Improper, Irregular or Excessive Attachment
Perigrina v. Panis. In a suit for damages, attachment is not PEZA v. Carates. Injunction is judicial writ, process or
available where the claim for damages is contingent or Special ADR Rules, Rule 5.6. Type of interim measure of proceeding whereby a party is directed either to do a
unliquidated. The amount due or the value of the protection that a court may grant - The following, among particular act (mandatory injunction), or refrain from
property, must be above all legal counterclaims. others, are the interim measures of protection that a court doing an act (prohibitory injunction).
may grant:
23. Availability of Provisional Remedies in Criminal Two Requisites of Injunction:
Action a. Preliminary injunction directed against a party to
arbitration; 1. There must be a right to be protected
Rule 127, Sec. 1. Availability of provisional remedies — b. Preliminary attachment against property or 2. The acts which the injunction is to be directed
The provisional remedies in civil actions, insofar as they garnishment of funds in the custody of a bank or are violative of such right.
are applicable, may be availed of in connection with the a third person;
civil action deemed instituted with the criminal action. c. Appointment of a receiver; To authorize a temporary injunction, the complaint must
d. Detention, preservation, delivery or inspection make out at least a prima facie showing of a right to the
a. Criminal Court Can Also Issue Auxiliary Writs of property; or, final relief.
Like Attachment e. Assistance in the enforcement of an interim
measure of protection granted by the arbitral Preliminary injunction will not issue to protect a right in
Erana v. Vera and Panzani. Since the court in a criminal tribunal, which the latter cannot enforce esse (actual existence). These principles are equally
case has jurisdiction to try and decide the civil action effectively. relevant to actions seeking permanent injunction.
involved therein, it must also have jurisdiction to issue all
auxiliary writs, processes and other means necessary to B. Preliminary Injunction (Rule 58) b. Nature of Preliminary Mandatory Injunction –
carry into effect such civil jurisdiction, one of them being Mere Prohibitive Injunction; Purpose
preliminary injunction. 1. Preliminary Injunction Defined
Sps. Dela Rosa v. Heirs of Valdez. A PMI is more
24. Grounds for Attachment in Criminal Cases Rule 58, Sec. 1. Preliminary injunction defined; classes — cautiously regarded than a mere prohibitive injunction,
A preliminary injunction is an order granted at any stage since more than its function of preserving the status quo
Sec. 2. Attachment — When the civil action is properly of an action or proceeding prior to the judgment or final between the parties, it also commands the performance
instituted in the criminal action as provided in Rule 111, order, requiring a party or a court, agency or a person to of an act. Accordingly, the issuance of a writ of PMI is
the offended party may have the property of the accused refrain from a particular act or acts. justified only in a clear case, free from doubt or disputed
attached as security for the satisfaction of any judgment
that may be recovered from the accused in the following It may also require the performance of a particular act or While it is not required that the right claimed by applicant,
cases: acts, in which case it shall be known as a preliminary as basis for seeking injunctive relief, be conclusively
mandatory injunction established, it is still necessary to show, at least
(a) When the accused is about to abscond from the tentatively, that the right exists and is not vitiated by any
Philippines; a. What is Preliminary Injunction? substantial challenge or contradiction.
(b) When the criminal action is based on a claim for
money or property embezzled or fraudulently  Rule 58, Sec. 1 c. What is Permanent Injunction?
misapplied or converted to the use of the
accused who is a public officer, officer of a PPA v. Cipres Stevedoring & Arrestre, Inc. It is a Final/Permanent/Perpetual Injunction is one issued in the
corporation, attorney, factor, broker, agent, or preservative remedy to ensure the protection of a party’s judgment in the case permanently restraining the
clerk, in the course of his employment as such, substantive rights or interests pending the final judgment defendant or making preliminary injunction permanent.
or by any other person in a fiduciary capacity, or in the principal action.
for a willful violation of duty; d. Purpose of Injunction/Definition of Status Quo
(c) When the accused has concealed, removed, or A plea for an injunctive writ lies upon the existence of a
disposed of his property, or is about to do so; claimed emergency or extraordinary situation which Rodulfa v. Alfonso. Purpose: To preserve the status quo
and should be avoided for otherwise, the outcome of a restraining action or interference or furnishing preventive
(d) When the accused resides outside the litigation would be useless as far as the party applying for relief.
Philippines. (2a) the writ is concerned.
Status quo is the last actual peaceable, uncontested status
25. Interim Measure of Protection which precedes the pending controversy.
(a) That the applicant is entitled to the relief 3. That there is urgent and paramount necessity for
e. Writ of Injunction Not a Judgment on the demanded, and the whole or part of such relief the writ to prevent serious damage
Merits Hearing on the Application Required consists in restraining the commission or
continuance of the act or acts complained of, or b. “Clear Legal Right” Meaning: Must be Present
Juana Comple I HOA v. Fil-Estate Land, Inc. Due process in requiring the performance of an act or acts
considerations dictate that the assailed injunctive writ is either for a limited period or perpetually; Executive Sec. v. Forerunner Multi Resources, Inc. “Clear
not a judgment on the merits but merely an order for the (b) That the (a) commission, (b) continuance or (c) legal right” within the meaning of Rule 58, contemplates a
grant of a provisional and ancillary remedy to preserve the non-performance of the act or acts complained “right clearly founded in or granted by law”
status quo until the merits of the case can be heard. of during the litigation would probably work
injustice to the applicant; or For suits attacking the validity of laws or issuances with
The hearing on the application for issuance of a writ of (c) That a party, court, agency or a person is doing, the force and effect of law, as here, the applicant for
preliminary injunction is separate and distinct from the threatening, or is attempting to do, or is preliminary injunctive relief bears the added burden of
trial on the merits of the main case. procuring or suffering to be done some act or overcoming the presumption of validity inhering in such
acts probably in violation of the rights of the laws or issuances.
Moreover, the quantum of evidence required for one is applicant respecting the subject of the action or
different from that for the other. proceeding, and tending to render the judgment These procedural barriers to the issuance of a preliminary
ineffectual. (3a) injunctive writ are rooted on the equitable nature of such
f. Nature of Action for Injunction; Action in relief, preserving the status quo while, at the same time,
Personam Until Final Determination of the Case a. What are the Requisites for the Issuance of a restricting the course of action of the defendants even
Writ of Preliminary Injunction? before adverse judgment is rendered against them.
Munoz v. Atty. Yabut, Jr. The nature of the injunction suit
– as an action in personam in the RTC remains to be the Perez v. Sps. Madrona. Here two requisite of injunction Australian Professional Realty, Inc. v. Municipality of
same whether it is elevated to the CA or the SC for review. are present: Padre Garcia Batangas. In the absence of a clear legal
right, the issuance of the writ constitutes grave abuse of
An action in personam does not become an action in rem 1. There is a right to be protected, that is, discretion.
just because a pronouncement confirming INK’s title to Lot respondents’ right over their concrete fence
671 was made by the SC in the Calalang decision. which cannot be removed without due process The possibility of irreparable damage without proof of an
2. The act, the summary demolition of the concrete actual existing right is not a ground for injunction.
Final rulings may be made by the SC, as the Highest Court fence against which the injunction is directed,
of the Land, in actions in personam but such rulings are would violate such right The Incorporators of Mindanao Institute Inc. v. United
binding only as against the parties therein and not against Church of Christ in the Philippines. A writ of preliminary
the whole world. If petitioner indeed found respondents’ fence to have injunction may be issued only upon clear showing of an
encroached the sidewalk, his remedy is not to demolish actual existing right to be protected during the pendency
2. Courts Which May Grant Preliminary Injunction the same summarily after respondents’ failed to heed his of the principal action. When the complainant’s right or
request to remove it. title is doubtful or disputed, he does not have a clear legal
Rule 58, Sec. 2. Who may grant preliminary injunction — right and, therefore, the issuance of injunctive relief is not
A preliminary injunction may be granted (1) by the court Indeed, unless a thing is nuisance per se, it may not be proper.
where the action or proceeding is pending. If the action or abated summarily without judicial determination.
proceeding is pending in the (2) Court of Appeals or in the c. Absence of Clear Legal Right Not Entitled to
(3) Supreme Court, it may be issued by said court or any Strategic Alliance Dev. Corp. v. Star Infrastructure Dev. Injunctive Relief
member thereof. Corp. As an adjunct to the main action subject to the
latter’s outcome, on the other hand, a writ of preliminary Barayuga v. Adventist University of the Phil. In the
3. Grounds for Issuance injunction may be issued upon the concurrence of the absence of a clear legal right, the issuance of the injunctive
following essential requisites, to wit: writ constitutes grave abuse of discretion and will result to
Rule 58, Sec. 3. Grounds for issuance of preliminary nullification thereof.
injunction — A preliminary injunction may be granted 1. That the invasion of the right is material and
when it is established: substantial Roman Catholic Archbishop of San Fernando, Pampanga
2. That the right of the complainant is clear and v. Soriano, Jr. A clear and positive right especially calling
unmistakable; and for judicial protection must be shown.
granted only in the face of actual and existing substantial g. There must be a Clear Showing of Extreme
Injunction is not a remedy to protect or enforce rights. Urgency to Prevent Irreparable Damage and
contingent, abstract, or future rights; it will not issue to Injury
protect a right not in esse and which may never arise, or to The duty of the court taking cognizance of a prayer for a
restrain an act which does not give rise to a cause of writ of preliminary injunction is to determine whether the Sps. Castro v. Sps. Dela Cruz. For an injunctive writ to
action. There must exist an actual right. requisites necessary for the grant of an injunction are issue, a clear showing of extreme urgency to prevent
present in the case before it. irreparable injury and a clear and unmistakable right to it
There must be a patent showing by the applicant that must be proven by the party seeking it.
there exists a right to be protected and that the acts In the absence of the same, and where facts are shown to
against which the writ is to be directed are violative of said be wanting in bringing the matter within the conditions for h. Action for Damages would Negate Injunction
right. its issuance, the ancillary writ must be struck down for
having been rendered in grave abuse of discretion. Power Sites and Signs, Inc. v. United Neon. The writ of
St. James College of Paranaque v. Equitable PCI Bank. The injunction should never issue when an action for damages
injunctive writ is conditioned on the existence of a clear d. “Irreparable Injury” – Meaning would adequately compensate the injuries caused.
and positive right of the applicant which should be
protected, the writ being the strong arm of equity, an PNB v. Castalloy Technology Corp. An injury is considered i. Hearing on the Preliminary Injunction within
extraordinary peremptory remedy which can be availed irreparable if it is of such constant and frequent the 20 days Effectivity of the TRO
of only upon the existence of well-defined circumstances. recurrence that no fair or reasonable redress can be had
therefor in a court of law, or where there is no standard Sps. Lago v. Judge Abdul. The preliminary injunction
Be that as it may, the writ must be used with extreme by which their amount can be measured with reasonable prayed for by the applicant can only be heard after the
caution, affecting as it does the respective rights of the accuracy, that is, it is not susceptible of mathematical trial court has ordered the issuance of the usual 20-day
parties. computation. TRO.

In fine, the writ should be granted only when the court is The provisional remedy of preliminary injunction may only Within that period of 20 days, the court shall order the
fully satisfied that the law permits it and the emergency be resorted to when there is a pressing necessity to avoid party sought to be enjoined to show cause at a specified
demands it, for the very foundation of the jurisdiction to injurious consequences which cannot be remedied under time and place why the injunction should not be granted.
issue writ of injunction rests in (a) the existence of a cause any standard of compensation
of action, (b) probability of irreparable injury, (c) During that same period, the court shall also determine
inadequacy of pecuniary compensation, and (d) the e. When is Damages Deemed Irreparable? the propriety of granting the preliminary injunction and
prevention of the multiplicity of suits. Where facts are then issue the corresponding order to that effect.
not shown to bring the case within these conditions, the Australian Professional Realty, Inc. v. Municipality of
relief of injunction should be refused. Padre Garcia Batangas. Damages are irreparable where j. Grant of Preliminary Injunction Discretionary
there is no standard by which their amount can be Upon the Court
Salting v. Velez and Velez. A clear and positive right measured with reasonable accuracy.
especially calling for judicial protection must be shown. Sps. Dela Rosa v. Valdez. Sine dubio (without doubt), the
Injunction is not a remedy to protect or enforce f. Irreparable Damage Without Proof of Actual grant or denial of a writ of preliminary injunction in a
contingent, abstract, or future rights; it will not issue to Existing Right – No Injunctive Relief pending case, rests on the sound discretion of the court
protect a right not in esse and which may never arise, or taking cognizance of the case since the assessment and
to restrain an act which does not give rise to a cause of Equitable PCI Bank v. OJ Mark Trading, Inc. The possibility evaluation of evidence towards that end involve findings
action. of irreparable damage without proof of actual existing of facts left to the said court for its conclusive
right is no ground for an injunction. determination.
There must exist an actual right. There must be a patent
showing by the applicant that there exists a right to be Hence, it is not sufficient for the respondents to simply Hence, the exercise of judicial discretion by a court in
protected and that the acts against which the writ is to be harp on the serious damage they stand to suffer if the injunctive matters must not be interfered with except
directed are violative of said right foreclosure sale is not stayed. They must establish such when there is grave abuse of discretion.
clear and unmistakable right to the injunction.
Palm Tree Estates, Inc. v. PNB. A writ of preliminary Grave abuse of discretion in the issuance of writs of
injunction is an extraordinary event which must be preliminary injunction implies a capricious and whimsical
exercise of judgment that is equivalent to lack of
jurisdiction, or where the power is exercised in an party or person all damages which he may applicant will pay to such party or person all damages
arbitrary or despotic manner by reason of passion, sustain by reason of the injunction or temporary which he may sustain by reason of the injunction.
prejudice or personal aversion amounting to an evasion of restraining order if the court should finally
positive duty or to a virtual refusal to perform the duty decide that the applicant was not entitled b. Purpose of Injunction Bond
enjoined, or to act at all in contemplation of law. thereto. Upon approval of the requisite bond, a
writ of preliminary injunction shall be issued. Land Bank v. Heirs of Listanam. Purpose: To protect the
k. Doctrine of the “Strong Arm of Equity” (c) When an application for a writ of preliminary defendant against loss or damage by reason of the
injunction or a temporary restraining order is injunction in case the court finally decides that the plaintiff
Thunder Security and Investigation Agency. Doctrine of included in a complaint or any initiatory was not entitled to it, and the bond is usually conditioned
Strong Arm of Equity – There is no power the exercise of pleading, the case, if filed in a multiple-sala accordingly.
which is more delicate and which calls for greater court, shall be raffled only after notice to and in
circumspection than the issuance of an injunction. Hence, the presence of the adverse party or the person GSIS v. Executive Judge Cancino-Erum. Despite not strictly
such power must be issued by the courts with caution and to be enjoined. In any event, such notice shall following the procedure under Circular No. 7 in assigning
should be extended only when the courts cannot afford an be preceded, or contemporaneously Civil Case No. MC08-3660 to Br. 213, the respondents as
adequate or commensurate remedy in damages. It states accompanied by: members of the Raffle Committee could not be held to
that the court should extend injunctive relief where courts have violated the rule on the exclusivity of raffle because
of law cannot afford an adequate or commensurate 1. Service of summons, there were obviously less TRO or injunction cases available
remedy in damages; “in cases of: 2. Together with a copy of the complaint or at anytime for raffling than the number of Branches of the
initiatory pleading and RTC.
1. Extreme urgency 3. The applicant's affidavit and bond, upon the
2. Where the right is very clear adverse party in the Philippines. Given the urgent nature of TRO or injunction cases, each
3. Where considerations of relative inconvenience of them had to be immediately attended to.
bear strongly in complainant’s favor However, where the summons:
4. Where there is a willful and unlawful invasion of This peculiarity must have led to the adoption of the
plaintiff’s right against his protest and 1. Could not be served personally or by practice of raffling such cases despite their number being
remonstrance substituted service despite diligent efforts, less than the number of the Branches in Mandaluyong
5. The injury being a continuing one or City. The practice did not absolutely contravene Circular
6. Where the effect of the mandatory injunction is 2. The adverse party is a resident of the No. 7 in view of the circular itself expressly excepting
rather to re-establish and maintain a pre-existing Philippines temporarily absent therefrom or under its fourth paragraph, supra, any incidental or
continuing relation between the parties, recently is a nonresident thereof, interlocutory matter of such urgent nature (like a TRO
and arbitrarily interrupted by the defendant, application) that might not wait for the regular raffle.
than to establish a new relation. The requirement of prior or contemporaneous service of
summons shall not apply 5. Preliminary Injunction Not Granted Without
Requirement for the Issuance of Preliminary Injunction or Notice; TRO
TRO (d) The application for a temporary restraining order
shall thereafter be acted upon only after all Rule 58, Sec. 5. Preliminary injunction not granted
Rule 58, Sec. 4. Verified application and bond for parties are heard in a summary hearing which without notice; exception —
preliminary injunction or temporary restraining order — shall be conducted within twenty-four (24)
A preliminary injunction or temporary restraining order hours after the sheriff's return of service and/or Par. 1. No preliminary injunction shall be granted without
may be granted only when: the records are received by the branch selected hearing and prior notice to the party or person sought to
by raffle and to which the records shall be be enjoined.
(a) The application in the action or proceeding is transmitted immediately.
verified, and shows facts entitling the applicant If it shall appear from facts shown by affidavits or by the
to the relief demanded; and a. Filing of Bond Required verified application that great or irreparable injury would
(b) Unless exempted by the court the applicant files result to the applicant before the matter can be heard on
with the court where the action or proceeding is Land Bank v. Heirs of Listanam. An application for notice, the court to which the application for preliminary
pending, a bond executed to the party or person preliminary injunction is required to file a bond executed injunction was made, may issue ex parte temporary
enjoined, in an amount to be fixed by the court, to the party or person enjoined, to the effect that the restraining order to be effective only for a period of
to the effect that the applicant will pay to such
twenty (20) days from service on the party or person d. Purpose of a TRO or Injunction
sought to be enjoined, except as herein provided. A restraining, order issued by the Supreme Court or a
member thereof shall be effective until further orders. NASECORE v. ERC. Purpose of TRO: To prevent a
Within the said twenty-day period, the court must: threatened wrong and to protect the property rights
The trial court, the Court of Appeals, the Sandiganbayan or involved from further injury, until the issues can be
(a) order said party or person to show cause, at a the Court of Tax Appeals that issued a writ of preliminary determined after a hearing on the merits.
specified time and place, why the injunction injunction against a lower court, board, officer or quasi-
should not be granted, judicial agency shall decide the main case or petition e. What is the Test in the Issuance of a TRO?
(b) Determine within the same period whether or within 6 months from the issuance of the writ
not the preliminary injunction shall be granted, G.G. Sportswear Manufacturing Corp. v. BDO Unibank.
and a. Q: Is Notice and Hearing Required in the The test for issuing a TRO or an injunction is whether the
(c) Accordingly issue the corresponding order. (Bar Issuance of a Preliminary Injunction? facts show a need for equity to intervene in order to
Matter No. 803, 17 February 1998) protect perceived rights in equity
A: Yes, because no preliminary injunction shall be
Par. 2. However, subject to the provisions of the granted without hearing and prior notice to the party or Injunction may be issued only when the plaintiff appears
preceding Sections, if the matter is of extreme urgency persons sought to be enjoined to be entitled to the main relief he asks in the complaint.
and the applicant will suffer grave injustice and irreparable
injury, the executive judge of a multiple-sala court or the b. What is a TRO? Purpose And, where the defendant is heard on the application for
presiding judge of a single sala court may issue ex parte a injunction, the trial court must consider too, the weight of
temporary restraining order effective for only seventy-two SBMA v. Rodriguez. A temporary restraining order (TRO) his opposition.
(72) hours from issuance but he shall immediately comply is an interlocutory order or writ issued by the court as a
with the provisions of the next preceding Sec. as to service restraint on the defendant until the propriety of granting f. Power to Stay Proceedings: Discretionary Upon
of summons and the documents to be served therewith. an injunction can be determined, thus going no further in the Court
its operation than to preserve the status quo until that
Thereafter, within the aforesaid seventy-two (72) hours, determination. GD Express Worldwide N.V. v. CA. The power to stay
the judge before whom the case is pending shall conduct a proceedings is incidental to the power inherent in every
summary hearing to determine whether the temporary A TRO is not intended to operate as an injunction court to control the disposition of the cases on its dockets,
restraining order shall be extended until the application pendente lite, and should not in effect determine the considering its time and effort, that of counsel and the
for preliminary injunction can be heard. issues involved before the parties can have their day in litigants.
court
In no case shall the total period of effectivity of the But if proceedings must be stayed, it must be done to
temporary restraining order exceed twenty (20) days, c. What is the Nature of the TRO? Immediate and avoid multiplicity of suits and prevent vexation, vexatious
including the original seventy-two hours provided herein. Prompt Action Required on the Case litigations, conflicting judgments, confusion between
litigants and courts.
Par. 3. In the event that the application for preliminary GSIS v. Executive Judge. Cancino-Erum. The urgent nature
injunction is (a) denied or (b) not resolved within the said of an injunction or TRO case demands prompt action and It bears stressing that WON the RTC, in this case the SCC,
period, the temporary restraining order is deemed, immediate attention, thereby compelling the filing of the would suspend the proceedings in the second case is
automatically vacated. case in the proper court without delay. submitted to its sound discretion.

The effectivity of a temporary restraining order is not To assume that a party desiring to file an injunction or TRO g. Grant of Injunctive Writ: Discretionary
extendible without need of any judicial declaration to case will just stand idly by and mark time until his favored
that effect and no court shall have authority to extend or Branch is the only Branch left without an assigned Australian Professional Realty, Inc. v. Municipality of
renew the same on the same ground for which it was injunction or TRO case is obviously speculative. Padre Garcia Batangas. The grant or denial of a writ of
issued. preliminary injunction in a pending case rests on the sound
Moreover, the "anomalous situation" is highly unlikely in discretion of the court taking cognizance of the case, since
Par. 4. However, if issued by the Court of Appeals or a view of the uncertainty of having the favored Branch the assessment and evaluation of evidence towards that
member thereof, the temporary restraining order shall be remain the only Branch without an injunction or TRO case end involves findings of fact left to the said court for its
effective for sixty (60) days from service on the party or following the series of raffle. conclusive determination.
person sought to be enjoined.
Hence, the exercise of judicial discretion by a court in If the lower court issued the desired writ to enjoin the instrument, under which
injunctive matters must not be interfered with, except sale of the properties premised on the aforementioned his rights are affected and
when there is grave abuse of discretion. justification of the petitioners, the issuance of the writ before breach or violation
would be a virtual acceptance of their claim that the Provisional remedy Special Civil Action
h. Can the Court Issue a TRO ex parte? foreclosure sale is null and void. Dependent on the Main Independent
Action
Yes. Based on the following grounds: PNB v. Castalloy Technology Corp. There would in effect
be a prejudgment of the main case and a reversal of the 6. Instances Which Prohibit the Issuance of an
1. If the matter is of extreme urgency; and rule on the burden of proof since it would assume the Injunction or TRO
2. The applicant will suffer grave injustice and proposition which the petitioners are inceptively bound to
irreparable injury prove. a. Bidding or awarding of contracts/projects of the
national government under R.A. 8975, Sec. 2
i. GR that Injunction is Not Available for Acts l. Decision of the Ombudsman immediately
Already Done: Exception Executory: Not Stayed by Appeal or Injunction Nerwin Industries Corp. v. PNOC-Energy Dev. Corp. The
said proscription is not entirely new. R.A. 8975 merely
UNICAN v. NEA. GR: The writ of prohibition will not lie to Facura and Tuason v. CA. The decision of the Ombudsman supersedes P.D. 1818 which earlier underscored the
enjoin the acts already done. is immediately executory pending the appeal and may not prohibition to courts from issuing restraining orders or
be stayed by filing of an appeal or the issuance of an preliminary injunctions in cases involving infrastructure or
XPN: The courts will decide a question otherwise moot if it injunctive writ. National Resources Development projects of, and public
is capable of repetition yet evading review. utilities operated, by the government
The rule applies to the appealable decisions of the
j. GR: Injunction Cannot Restrain the Execution of Ombudsman, namely, those where the penalty imposed is b. Lawful actions of government agencies that
a Judgment: XPN other than public censure or reprimand, or a penalty of enforce environmental laws or prevent violation
suspension of more than one month, or a fine equivalent thereof.
Australian Professional Realty, Inc. v. Municipality of to more than one months’ salary.
Padre Garcia Batangas. Rules of Procedure in Environmental Cases, Part II, Sec.
m. CA has no Discretion to Stay the Decision of the 10. Prohibition Against Temporary Restraining Order
GR: After a judgment has gained finality, it becomes the Ombudsman (TRO) or Preliminary Injunction – Except the SC, no court
ministerial duty of the court to order its execution. can issue a TRO or writ of injunction against the lawful
Facura and Tuason v. CA. The CA, even on terms it may actions of government agencies that enforce
No court should interfere, by injunction or otherwise, to deem just, has no discretion to stay a decision of the environmental laws or prevent violations thereof.
restrain such execution. Ombudsman as such procedural matter is governed
specifically by the Rules of Procedure of the Office of the c. In any case involving or growing out of labor
XPN: Ombudsman. disputes, except otherwise provided in Art. 218
and 264 of the LC;
(1) When facts and circumstances later transpire n. Relief under Actin for Declaratory Relief vs. d. The execution or implementation of government
that would render execution inequitable or Under Injunction infrastructures under P.D. 605
unjust e. Against the Presidential Agrarian Reform Council
(2) When there is a change in the situation of the Declaratory Relief Injunction (PARC) or any of its duly authorized agencies in
parties that may warrant injunctive relief Seeks a declaration of Seeks to enjoin or compel a any case connected with the application,
rights or duties, or the party to perform certain implementation or enforcement of the CARP
k. Issuance of the Writ Should Not in Effect be a determination of any acts f. Against the Assets Privatization Trust
Prejudgment on the Case question or validity arising g. GR: In acts already done
under a statute, executive
Rivas v. SEC. Courts should avoid issuing a writ of order or regulation, XPN: If it is capable of repetition yet evading
preliminary injunction which would in effect dispose of the ordinance, or any review.
main case without trial. governmental regulation, h. Decisions of the Ombudsman
or under a deed, will,
contract or other written
i. GR: After a judgment has gained finality, it stated in the application for foreclosure sale, although the applicant is entitled to the
becomes the ministerial duty of the court to which shall be updated monthly while the case is injunction or restraining order, the issuance or
order its execution: pending. continuance thereof, as the case may be, would
(3) Where a writ of preliminary injunction has been cause irreparable damage to the party or person
XPN: In the execution of judgment when: issued against a foreclosure of mortgage, the enjoined while the applicant can be fully
a. The facts and circumstances later disposition of the case shall be speedily resolved. compensated for such damages as he may
transpire that would render execution To this end, the court concerned shall submit to suffer, and the former files a bond in an amount
inequitable or unjust; or the Supreme Court, through the Office of the fixed by the court conditioned that he will pay all
b. When there is a change in the situation Court Administrator, quarterly reports on the damages which the applicant may suffer by the
of the parties that may warrant an progress of the cases involving ten million pesos denial or the dissolution of the injunction or
injunctive relief and above. restraining order.
j. When it would in effect dispose of the main case (4) All requirements and restrictions prescribed for 4. If it appears that the extent of the preliminary
without trial. the issuance of a temporary restraining injunction or restraining order granted is too
k. The RTC may not issue injunction against quasi- order/writ of preliminary injunction, such as the great, it may be modified.
judicial bodies of equal rank such as the SSS, SEC. posting of a bond, which shall be equal to the
l. No court can interfere by injunction with the amount of the outstanding debt, and the time Objection to the Defendant: File a motion to
judgment or order of another court of limitation for its effectivity, shall apply as well to Preliminary Injunction dissolve preliminary
concurrent jurisdiction having the power to a status quo order. injunction
grant the relief sought by injunction
m. In the absence of a clear legal right or where the From these guidelines, it is evident that a disagreement If denied, file MR
complainant’s right is doubtful or disputed. between the parties as to the amount of the secured loan
n. The RTC may not issue injunction against IPO, that remains unpaid shall not, by itself, warrant the If MR denied, file petition
COMELEC or Workmen’s Compensation issuance of an injunctive writ to enjoin foreclosure. The for certiorari under Rule 65
Commission guidelines speak of strict exceptions and conditions. Even there being no adequate
o. Injunction will not lie to restrain a criminal an allegation of unconscionable interest being imposed on remedy
prosecution the loan by the mortgagee shall no longer suffice to
p. Prohibition in Extrajudicial or Judicial Foreclosure support an injunction. Furthermore, if under this Plaintiff: File
of Real Estate Mortgage resolution a debtor can no longer seek an injunctive writ comment/opposition on
by the unsubstantiated claim of full payment, there is even the motion to dissolve
PNB v. Castalloy Technology Corp. The resolution more reason for a court not to issue an injunctive writ preliminary attachment
embodies the additional guidelines intended to aid courts when the debtors or mortgagors readily admit default in
in foreclosure proceedings, specifically limiting the the payment of the secured loan, as in this case. 8. Service of Copies of Bond: Effect of Disapproval
instances, and citing the conditions, when a writ against
foreclosure of a mortgage may be issued, to wit: 7. Grounds for Objection to or Motion for Sec. 7. Service of copies of bonds; effect of disapproval of
Dissolution of Injunction or Restraining Order same — The party filing a bond in accordance with the
(1) No temporary restraining order or writ of provisions of this Rule shall forthwith serve a copy of such
preliminary injunction against the extrajudicial Rule 58, Sec. 6. Grounds for objection to, or for motion of bond on the other party, who may except to the
foreclosure of real estate mortgage shall be dissolution of, injunction or restraining order — The sufficiency of the bond, or of the surety or sureties
issued on the allegation that the loan secured by application for injunction or restraining order may be thereon.
the mortgage has been paid or is not delinquent denied:
unless the application is verified and supported If the applicant's bond is found:
by evidence of payment. 1. Upon a showing of its insufficiency.
(2) No temporary restraining order or writ of 2. The injunction or restraining order may also be 1. To be insufficient in amount, or
preliminary injunction against the extrajudicial denied, or, if granted, may be dissolved, on 2. If the surety or sureties thereon fail to justify,
foreclosure of real estate mortgage shall be other grounds upon affidavits of the party or and
issued on the allegation that the interest on the person enjoined, which may be opposed by the 3. A bond sufficient in amount with sufficient
loan is unconscionable, unless the debtor pays applicant also by affidavits. sureties approved after justification is not filed
the mortgagee at least twelve percent per 3. It may further be denied, or if granted, may be forthwith the injunction shall be dissolved.
annum interest on the principal obligation as dissolved, if it appears after hearing that
If the bond of the adverse party is found to be: positive duty or a virtual refusal to perform a duty Advent Capital and Finance Corp. v. Roland Young. Rule
enjoined by law. 57, Sec. 20 allows the application to be filed at anytime
1. Insufficient in amount, or before the judgment becomes executory.
2. The surety or sureties thereon fail to justify a 9. Judgment to Damages Against The Parties and
bond sufficient in amount with sufficient sureties Sureties 10. Granting of the Final Injunction
approved after justification is not filed forthwith,
the injunction shall be granted or restored, as Rule 58, Sec. 8. Judgment to include damages against Rule 59, Sec. 9. When final injunction granted — If after
the case may be. party and sureties — At the trial, the amount of damages the trial of the action it appears that the applicant is
to be awarded to either party, upon the bond of the entitled to have the act or acts complained of permanently
a. A Higher Court Will Not Set Aside the Trial adverse party, shall be claimed, ascertained, and awarded enjoined the court shall grant a final injunction perpetually
Court’s Grant or Denial of the Application: under the same procedure prescribed in Sec. 20 of Rule restraining the party or person enjoined from the
Exceptions 57. commission or continuance of the act or acts of confirming
the preliminary mandatory injunction. (10a)
G.G. Sportswear Manufacturing Corp. v. BDO Unibank, Rule 57, Sec. 20. Claim for damages on account of
Inc. A higher court will not set aside the trial court’s grant improper, irregular or excessive attachment — An 11. Availability of Provisional Remedies in Criminal
or denial of an application for preliminary injunction application for damages on account of improper, irregular Action
or excessive attachment must be filed:
XPN: Unless it gravely abused its discretion as when it  Rule 127, Sec. 1
lacks jurisdiction over the action, ignores relevant 1. Before the trial or before appeal is perfected or
considerations that stick out of the parties’ pleadings, before the judgment becomes executory, with a. Criminal Court Can Also Issue Auxiliary Writs
sees the facts with a blurred lens, ignores what is due notice to the attaching party and his surety b. Injunction will not lie to Restrain a Criminal
relevant, draws illogical conclusions, or simply acts in or sureties setting forth the facts showing his Prosecution: Exception
random fashion. right to damages and the amount thereof. Such
damages may be awarded only after proper 1. To afford full protection to the constitutional
Injunction may be issued only when the plaintiff appears hearing and shall be included in the judgment on rights of the accused.
to be entitled to the main relief he asks in his complaint. the main case. 2. When necessary for the orderly administration
2. If the judgment of the appellate court be of justice or to avoid multiplicity of actions
b. Remedy in Case of Denial of Request for favorable to the party against whom the 3. Where the charges are manifestly vengeance
Injunctive Writ – Rule 65: Mere Interlocutory attachment was issued he must claim damages 4. Where there are clearly no prima facie case
sustained during the pendency of the appeal by against the accused and a motion to quash on
Australian Professional Realty, Inc. v. Municipality of filing an application in the appellate court, with that ground has been denied.
Padre Garcia Batangas. An order denying an application notice to the party in whose favor the
for preliminary injunction is interlocutory in nature, and, attachment was issued or his surety or sureties, 12. Interim Measure of Protection
hence, not appealable. before the judgment of the appellate court
becomes executory. The appellate court may Special ADR Rules, Rule 5.6. Preliminary injunction
Instead, the proper remedy is to file a petition for allow the application to be heard and decided by directed against a party to arbitration
certiorari and/or prohibition under Rule 65. the trial court.
3. Nothing herein contained shall prevent the party 13. Issuance of TEPO in Environmental Cases
c. Presence of Grave Abuse of Discretion to against whom the attachment was issued from
Question the Injunction by Way of Certiorari recovering in the same action the damages Rules of Procedure in Environmental Cases, Sec. 8.
under Rule 65 awarded to him from any property of the
attaching party not exempt from execution Sec. 8. Issuance of Temporary Environmental Protection
Sps. Castro v. Sps. Dela Cruz. For grave abuse of discretion should the bond or deposit given by the latter be Order (TEPO) - If it appears from the verified complaint
to exist as a valid ground for the nullification of an insufficient or fail to fully satisfy the award. (20a) with a prayer for the issuance of an Environmental
injunctive writ, there must be a capricious and whimsical Protection Order (EPO) that the matter is of extreme
exercise of judgment, equivalent to lack or excess of c. Damages Against The Bond Must Be Before the urgency and the applicant will suffer grave injustice and
jurisdiction or the power must be exercised in an arbitrary Judgment Becomes Executory irreparable injury, the executive judge of the multiple-sala
manner by reason of passion or personal hostility, and it court before raffle or the presiding judge of a single-sala
must be patent and gross as to amount to an evasion of court as the case may be, may issue ex parte a TEPO
effective for only seventy-two (72) hours from date of the may issue ex parte a provisional asset preservation order (b) When it appears in an action by the mortgagee
receipt of the TEPO by the party or person enjoined. effective immediately forbidding any transaction, for the foreclosure of a mortgage that (a) the
Within said period, the court where the case is assigned, withdrawal, deposit, transfer, removal, conversion, property is in danger of being wasted or
shall conduct a summary hearing to determine whether concealment or other disposition of the subject monetary dissipated or materially injured, and that its
the TEPO may be extended until the termination of the instrument, property, or proceeds. value is probably insufficient to discharge the
case. mortgage debt, or (b) that the parties have so
Such order shall be effective for a period of twenty days stipulated in the contract of mortgage;
The court where the case is assigned, shall periodically from the respective dates of service to respondent or any (c) After judgment, (a) to preserve the property
monitor the existence of acts that are the subject matter person acting in his behalf, and upon each covered during the pendency of an appeal, or (b) to
of the TEPO even if issued by the executive judge, and may institution or government agency in accordance with dispose of it according to the judgment, or (c) to
lift the same at any time as circumstances may warrant. Section 14 of this Rule. aid execution when the execution has been
returned unsatisfied or (d) the judgment obligor
The applicant shall be exempted from the posting of a C. Receivership (Rule 59) refuses to apply his property in satisfaction of
bond for the issuance of a TEPO. the judgment, or (e) otherwise to carry the
1. Receivership Defined judgment into effect;
a. Action on the Motion for Dissolution of TEPO (d) Whenever in other cases it appears that the
Chavez and Chavez-Deles v. CA. It cannot be said that the appointment of a receiver is the most
Rules of Procedure in Environmental Cases, Sec. 9. grant of receivership in one case will amount to res convenient and feasible means of preserving,
judicata on the merits of the other cases. administering, or disposing of the property in
Sec. 9. Action on motion for dissolution of TEPO - The litigation. (CF-PAD)
grounds for motion to dissolve a TEPO shall be supported The grant or denial of this provisional remedy will still
by affidavits of the party or person enjoined which the depend on the need for it in the particular action. During the pendency of an appeal, the appellate court may
applicant may oppose, also by affidavits. allow an application for the appointment of a receiver to
2. Object of Appointment of a Receiver be filed in and decided by the court of origin and the
The TEPO may be dissolved if it appears after hearing that receiver appointed to be subject to the control of said
its issuance or continuance would: Chavez and Chavez-Deles v. CA. Object: The prevention of court. (1a)
imminent danger to the property. If the action does not
(a) Cause irreparable damage to the party or person require such protection or preservation, the remedy is not 4. Requirements For Appointment as a Receiver
enjoined while the applicant may be fully receivership.
compensated for such damages as he may suffer Rule 59, Sec. 2. Bond on appointment of receiver —
and 3. Grounds for the Appointment of a Receiver Before issuing the order appointing a receiver the court
(b) Subject to the posting of a sufficient bond by the shall require the applicant:
party or person enjoined. Rule 59, Sec. 1. Appointment of receiver — Upon a
verified application, one or more receivers of the property 1. To file a bond executed to the party against
14. Ex Parte Issuance of Provisional Asset subject of the action or proceeding may be appointed by whom the application is presented, in an amount
Privatization Order the court where the action is pending or by the Court of to be fixed by the court, to the effect that the
Appeals or by the Supreme Court, or a member thereof, in applicant will pay such party all damages he may
Sec. 11. Ex parte issuance of provisional asset the following cases: sustain by reason of the appointment of such
preservation order - Where the executive judge of the receiver in case the applicant shall have
regional trial court or, in his absence, the vice-executive (a) When it appears from the verified application, procured such appointment without sufficient
judge or, in their absence, any judge of the regional trial and such other proof as the court may require, cause; and
court available in the same station, has determined that that the party applying for the appointment of a 2. The court may, in its discretion, at any time after
probable cause exists on the basis of allegations of a receiver has an interest in the property or fund the appointment, require an additional bond as
verified petition sufficient in form and substance, with a which is the subject of the action or proceeding, further security for such damages.
prayer for the issuance of an asset preservation order, and that such property or fund is in danger of
that the monetary instrument, property, or proceeds being lost, removed, or materially injured 5. Ground for Denial of Application or Discharge of
subject of the petition are in any way related to an (LRMI) unless a receiver be appointed to the Receiver
unlawful activity as defined in Section 3(i) of Republic Act administer and preserve it;
No. 9160, as amended by Republic Act No. 9194, the court
Rule 59, Sec. 3. Denial of application or discharge of The receiver shall be appointed or re-appointed, as the refused or neglected to be surrendered,
receiver — The application may be denied, or the receiver case may be. (6a) together with
discharged, when: 3. All damages that may have been sustained by
8. General Power of a Receiver the party or parties entitled thereto as a
1. The adverse party files a bond executed to the consequence of such refusal or neglect. (n)
applicant, in an amount to be fixed by the court, Rule 59, Sec. 6. General powers of receiver — Subject to 10. Grounds for Termination of the Receiver and
to the effect that such party will pay the the control of the court in which the action or proceeding Compensation
applicant all damages he may suffer by reason of is pending a receiver shall have the power to:
the acts, omissions, or Rule 59, Sec. 8. Termination of receivership;
2. Other matters specified in the application as 1. Bring and defend, in such capacity, actions in his compensation of receiver — Whenever the court, (a)
ground for such appointment. own name; motu proprio or (b) on motion of either party, shall
3. The receiver may also be discharged if it is 2. To take and keep possession of the property in determine that the necessity for a receiver no longer
shown that his appointment was obtained controversy; exists, it shall, after due notice to all interested parties and
without sufficient cause. (4a) 3. To receive rents; hearing:
4. To collect debts due to himself as receiver or to
6. Requirements of Oath and Bond of a Receiver the fund, property, estate, person, or 1. Settle the accounts of the receiver,
corporation (FPEPC) of which he is the receiver; 2. Direct the delivery of the funds and other
Sec. 4. Oath and bond of receiver — Before entering upon 5. To compound for and compromise the same; property in his possession to the person
his duties, the receiver shall be: 6. To make transfers; adjudged to be entitled to receive them and
7. To pay outstanding debts; 3. Order the discharge of the receiver from further
1. Sworn to perform them faithfully, and 8. To divide the money and other property that duty as such.
2. Shall file a bond, executed to such person and in shall remain among the persons legally entitled
such sum as the court may direct, to the effect to receive the same; and The court shall allow the receiver such reasonable
that he will faithfully discharge his duties in the 9. Generally to do such acts respecting the compensation as the circumstances of the case warrant, to
action or proceeding and obey the orders of the property as the court may authorize. be taxed as costs against the defeated party, or
court. (5a) 10. However, funds in the hands of a receiver may apportioned, as justice requires.
be invested only by order of the court upon the
7. Service of Copies of Bonds and Effects of written consent of all the parties to the action. 11. Judgment to Include Recovery Against the
Disapproval (7a) Sureties

Rule 59, Sec. 5. Service of copies of bonds; effect of No action may be filed by or against a receiver without Rule 59, Sec. 9. Judgment to include recovery against
disapproval of same — The person filing a bond in leave of the court which appointed him. (n) sureties — The amount, if any, to be awarded to any party
accordance with the provisions of this Rule shall forthwith upon any bond filed in accordance with the provisions of
serve a copy thereof on each interested party, who may 9. Liability for Refusal or Right to Deliver Property this Rule, shall be claimed, ascertained, and granted under
except to its sufficiency or of the surety or sureties to Receiver the same procedure prescribed in Sec. 20 of Rule 57.
thereon.
Rule 59, Sec. 7. Liability for refusal or neglect to deliver a. When to File a Claim for Damages?
1. If either the applicant's or the receiver's bond is property to receiver — A person who refuses or neglects,
found to be insufficient in amount, or upon reasonable demand, to deliver to the receiver all the Advent Capita
2. If the surety or sureties thereon fail to justify, property, money, books, deeds, notes, bills, documents l Finance Corp. v. Young. Rule 57, Sec. 20 allows the
and a bond sufficient in amount with sufficient and papers (PMB-DNB-DP) within his power or control, application to be filed at any time before the judgment
sureties approved after justification is not filed subject of or involved in the action or proceeding, or in becomes executory.
forthwith, the application shall be denied or the case of disagreement, as determined and ordered by the
receiver discharged, as the case may be. court, may be: It should be filed in the same case that is the main action,
3. If the bond of the adverse party is found to be and with the court having jurisdiction over the case at the
insufficient in amount or the surety or sureties 1. Punished for contempt and time of the application.
thereon fail to justify, and a bond sufficient in 2. Shall be liable to the receiver for the money or
amount with sufficient sureties approved after the value of the property and other things so
justification is not filed forthwith
b. When to File a Claim if the Judgment of the principal relief sought in recovery of personal (a) That the applicant is (a) the owner of the
Appellate Court is Favorable to the Party the action is the recovery of property is only an property claimed, particularly describing it, or (b)
Against Whom the Attachment was Issue? possession of personal incidental relief sought in is entitled to the possession thereof;
property, the other reliefs, the action (b) That the property is wrongfully detained by the
 Rule 57, Sec. 20 like damages, being merely adverse party, alleging the cause of detention
incidental thereto thereof according to the best of his knowledge,
c. Damages on Account of Improper or Irregular Can be sought where the May be resorted to even if information, and belief ;
Seizure Under Writ of Replevin defendant is in the actual the personal property is in (c) That the property has (a) not been distrained or
Rule 60, Sec. 10 provides that in repleving cases, as in or constructive possession the custody of a third taken for a tax assessment or (b) a fine pursuant
receivership and injunction cases, the damages to be of the personalty involved person to law, (c) or seized under a writ of execution or
awarded upon the bond, shall be claimed, ascertained, Extends only to personal Extends to all kinds of preliminary attachment, (d) or otherwise placed
and granted “in accordance with Rule 57, Sec. 20” property capable of manual property whether real, under custodia legis, or (e) if so seized, that it is
delivery personal or incorporeal exempt from such seizure or custody; and
It allows the application to be filed at any time before the Available to recover Available to recover (d) The actual market value of the property.
judgment becomes executory. personal property if the possession of personal
same is not being property unjustly detained The applicant must also give a bond, executed to the
D. Replevin (Rule 60) concealed, removed or presupposes that the same adverse party in double the value of the property as
disposed of is being concealed, stated in the affidavit aforementioned, for the return of
1. Replevin Defined removed or disposed of to the property to the adverse party if such return be
prevent its being found or adjudged, and for the payment to the adverse party of
Replevin is a proceedings by which the owner or the one taken by the applicant such sum as he may recover from the applicant in the act.
who has a general or special property in the thing taken or Cannot be availed of if the Can still be resorted to
detained seeks to recover possession in specie, the property is in custodial egis even if the property is in a. Right to Possess Sufficient for a Writ of Replevin
recovery of damages being only incidental. or was seized under a custodia legis
search warrant Yang v. Valdez. The applicant need not be an owner of the
It is an action to recover possession of things of which the The amount of bond to be The amount of bond is the property. It is enough that he has the right to the
plaintiff claims the right of immediate possession. A bond furnished by the applicant amount fixed by the court possession.
is usually required when it is issued, but the property will is double the value of the
generally be restored upon the posting of a bond by the property subject of the b. Replevin not Available in Case Property is in
defendant. action Custodia Legis

2. What is the Nature of Replevin? 5. Application of Writ of Replevin Pagkalinawan v. Gomez. Replevin cannot be availed when
the property is in custodia legis, under attachment or has
Replevin may be a (a) provisional remedy or (b) the main Rule 60, Sec. 1. Application — A party praying for the been seized pursuant to law.
action recovery of possession of personal property may:
c. Prior Demand Not a Condition Precedent
3. Replevin as Main Action – Defined (1) At the commencement of the action or
(2) At any time before answer, Roger v. Escobido. Prior demand is not a condition
Replevin as a main action, is a suit at law (action of precedent for the filing of an action for replevin.
replevin) whereby goods or chattels that have been apply for an order for the delivery of such property to him,
unlawfully taken from one may be recovered. in the manner hereinafter provided. d. Issue in Replevin Case Different from Labor
Case: RTC can Acquire Jurisdiction over the
4. Distinctions Between Replevin and Attachment 6. Requirement of Affidavit and Bond Replevin Case

Replevin Attachment Sec. 2. Affidavit and bond — The applicant must show by Smart Communications, Inc. v. Regina. SMART’s demand
Governed by Rule 60 of the Governed by Rule 57 his own affidavit or that of some other person who for payment of the market value of the car or, in the
Rules of Court personally knows the facts: alternative, the surrender of the car, is not a labor dispute,
Available only where the Available even if the but a civil dispute. It involves the relationship of debtor
and creditor rather than employer-employee relations. As
such, the dispute falls within the jurisdiction of the regular not object to the sufficiency of the bond, or of
courts. a. Prior Service of Writ and Documents Required the surety or sureties thereon; or
(2) If the adverse party so objects and the court
The question of WON a party has the right of possession Rivera v. Vargas. If the writ was not served upon the affirms its approval of the applicant's bond or
over the property involved and if so, WON the adverse adverse party but was instead merely handed to a person approves a new bond, or
party has wrongfully taken and detained said property as who is neither (1) an agent of the adverse party nor a (3) If the adverse party requires the return of the
to require its return to plaintiff, is outside the pale person (2) authorized to receive court processes on his property but his bond is objected to and found
competence of a labor tribunal and beyond the field of behalf, the service thereof is erroneous and is, therefore, insufficient and he does not forthwith file an
specialization of Labor Arbiters. invalid, running afoul of the statutory and constitutional approved bond:
requirements.
In thus ruling, the Court is not sanctioning split jurisdiction 1. The property shall be delivered to the applicant.
but defining avenues of jurisdiction as laid down by The service is likewise invalid if the writ of replevin was 2. If for any reason the property is not delivered to
pertinent laws. served without the required documents. Under these the applicant, the sheriff must return it to the
circumstances, no right to seize and to detain the property adverse party. (6a)
7. Issuance of an Order by the Court shall pass, the act of the sheriff being both unlawful and
unconstitutional. a. What is the Duty of the Sheriff if the Adverse
Rule 60, Sec. 3. Order — Upon the filing of such affidavit Party Did Not Object or Posted a Bond?
and approval of the bond, the court shall: Service of the writ upon the adverse party is mandatory
in line with the constitutional guaranty on procedural Adoma v. Gatcheco. Where the adverse party did not
1. Issue an order and due process and as safeguard against unreasonable object to the other party’s bond nor posted a redelivery
2. The corresponding writ of replevin, describing searches and seizures bond to recover the possession of the property taken
the personal property alleged to be wrongfully under the writ of replevin, the sheriff is under obligation
detained and requiring the sheriff forthwith to 9. Remedy of the Adverse Party to deliver the property to the applicant.
take such property into his custody.
Rule 60, Sec. 5. Return of property — 11. Instance Where the Property Claimed by a Third
8. Duty of the Sheriff Upon Receipt of Order by Person
the Court 1. If the adverse party objects to the sufficiency of
the applicant's bond, or of the surety or sureties Sec. 7. Proceedings where property claimed by third
Rule 60, Sec. 4. Duty of the sheriff — Upon receiving such thereon, he cannot immediately require the person —
order, the sheriff must return of the property,
2. But if he does not so object, he may, at any time Par. 1. If the property taken is claimed by any person other
1. Serve a copy thereof on the adverse party, before the delivery of the property to the than the party against whom the writ of replevin had been
together with a copy of the application, affidavit applicant, require the return thereof, by filing issued or his agent, and such person makes an affidavit of
and bond, and with the court where the action is pending a his title thereto, or right to the possession thereof, stating
2. Must forthwith take the property, if it be in the bond executed to the applicant, in double the the grounds therefor, and serves such affidavit upon the
possession of the adverse party, or his agent, value of the property as stated in the sheriff while the latter has possession of the property and
and retain it in his custody. applicant's affidavit for the delivery thereof to a copy thereof upon the applicant:
3. If the property or any part thereof be concealed the applicant, if such delivery be adjudged, and
in a building or enclosure, the sheriff must for the payment of such sum, to him as may be 1. The sheriff shall not be bound to keep the
demand its delivery, and if it be not delivered, he recovered against the adverse party, and by property under replevin or deliver it to the
must cause the building or enclosure to be serving a copy of such bond on the applicant applicant unless the applicant or his agent, on
broken open and take the property into his demand of said sheriff, shall file a bond
possession. 10. Disposition of the Property By the Sheriff approved by the court to indemnify the third-
4. After the sheriff has take possession of the party claimant in a sum not less than the value
property as herein provided, he must keep it in a Rule 60, Sec. 6. Disposition of property by sheriff – of the property under replevin as provided in
secure place and shall be responsible for its Sec. 2 hereof.
delivery to the party entitled thereto upon (1) If within five (5) days after the taking of the 2. In case of disagreement as to such value, the
receiving his fees and necessary expenses for property by the sheriff, the adverse party does court shall determine the same.
taking and keeping the same. (4a)
No claim for damages for the taking or keeping, of the this Rule, shall be claimed, ascertained, and granted under
property may be enforced against the bond unless the the same procedure as prescribed in Sec. 20 of Rule 57. Rule 61, Sec. 1. Application — (a) At the commencement
action therefor is filed within one hundred twenty (120) of the proper action or proceeding, or (b) at any time prior
days from the date of the filing of the bond. a. When to Apply for a Writ of Replevin to the judgment or final order:

Par. 2. The sheriff shall not be liable for damages, for the Advent Capital and Finance Corp. v. Young. Rule 60, Sec. 1. A verified application for support pendente lite
taking or keeping of such property, to any such third-party 10 provides that in replevin cases, the damages to be may be filed by any party
claimant if such bond shall be filed. awarded upon the bond, shall be claimed,, ascertained 2. Stating the grounds for the claim and the
and granted “in accordance with Rule 57, Sec. 20” 3. Financial conditions of both parties, and
Nothing herein contained shall prevent such claimant or 4. Accompanied by affidavits, depositions or other
any third person from vindicating his claim to the The aforesaid provisions essentially allows the application authentic documents in support thereof.
property, or prevent the applicant from claiming damages to be filed at anytime before the judgment becomes
against a third-party claimant who filed a frivolous or executory. 5. Filing of Comment
plainly spurious claim, in the same or a separate action.
E. Support Pendente Lite (Rule 61) Rule 61, Sec. 2. Comment — A copy of the application and
When the writ of replevin is issued in favor of the Republic all supporting documents shall be served upon the adverse
of the Philippines, or any officer duly representing it, the 1. SPL defined party, who shall have five (5) days to comment thereon
filing of such bond shall not be required, and in case the unless a different period is fixed by the court upon his
sheriff is sued for damages as a result of the replevin, he Fundamental of SPL. SPL is an amount adjudicated by the motion.
shall be represented by the Solicitor General, and if held trial court during the pendency of an action for support
liable therefor, the actual damages adjudged by the court upon the application of the plaintiff at the commencement The comment shall be verified and shall be accompanied
shall be paid by the National Treasurer out of the funds to of the proper action or at anytime afterwards. by affidavits, depositions or other authentic documents in
be appropriated for the purpose. (7a) support thereof
It is a remedy recognized by the Revised ROC and classified
12. Return of Papers as a provisional remedy rendered by the court as equity 6. Hearing on the Application for SPL
and justice may require.
Rule 60, Sec. 8. Return of papers — The sheriff must file Rule 61, Sec. 3. Hearing — After the comment is filed, or
the order, with his proceedings indorsed, thereon, with 2. Coverage of Support under the FC after the expiration of the period for its filing, the
the court within ten (10) days after taking the property application shall be set for hearing not more than three (3)
mentioned therein. Art. 194. Support comprises everything indispensable for: days thereafter.
(SDC-MET)
13. Judgment The facts in issue shall be proved in the same manner as is
1. Sustenance, provided for evidence on motions
Rule 60, Sec. 9. Judgment — After trial of the issues the 2. Dwelling,
court shall: 3. Clothing, 7. Order of the Court
4. Medical attendance,
1. determine who has the right of possession to 5. Education and Rule 61, Sec. 4. Order — The court shall:
and the value of the property and 6. Transportation, in keeping with the financial
2. Shall render judgment in the alternative for the capacity of the family. 1. Determine provisionally the pertinent facts, and
delivery thereof to the party entitled to the 2. shall render such orders as justice and equity
same, or for its value in case delivery cannot be The education of the person entitled to be supported may require, having the regard to the probable
made, and also for such damages as either party referred to in the preceding paragraph shall include his outcome of the case and such other
may prove, with costs. schooling or training for some profession, trade or circumstances as may aid in the proper
vocation, even beyond the age of majority. resolution of the question involved.
14. Coverage of Judgment
Transportation shall include expenses in going to and from If the application is granted:
Rule 60, Sec. 10. Judgment to include recovery against school, or to and from place of work.
sureties — The amount, if any, to be awarded to any party 1. The court shall fix the amount of money to be
upon any bond filed in accordance with the provisions of 3. Application for SPL provisionally paid or
2. Such other forms of support as should be hearing in the same case obtain a writ of execution to
provided, taking into account the necessities of enforce his right of reimbursement against the person
the applicant and the resources or means of the ordered to provide such support
adverse party, and the terms of payment or
mode for providing the support. Rule 61, Sec. 5. Failure to Plaintiff: Motion to Issue
Comply with the SPL Order of Execution against
If the application is denied, the principal case shall be tried defendant
and decided as early as possible.
File Contempt
a. Order of Support Pendente Lite is an
Interlocutory 9. Support in Criminal Cases

Calderon v. Roxas and CA. The assailed orders relative to Rule 61, Sec. 6. Support in criminal cases — In criminal
the incident of support pendente lite and support in actions where the civil liability includes support for the
arrears, as the term suggests, were issued pending the offspring as a consequence of the crime and the civil
rendition of the decision on the main action for aspect thereof has not been waived, reserved and
declaration of nullity of marriage, and are therefore instituted prior to its filing, the accused may be ordered to
interlocutory. provide support pendente lite to the child born to the
offended party allegedly because of the crime.
They did not finally dispose of the case nor did they consist
of a final adjudication of the merits of petitioner’s claims The application therefor may be filed successively by:
as to the ground of psychological incapacity and other
incidents as child custody, support and conjugal assets. 1. The offended party
2. Her parents,
Remedy in SPL (Rule 61) Plaintiff: If denied, file a 3. Grandparents or
motion for reconsideration 4. Guardian and
from the order denying the 5. The State in the corresponding criminal case
application for SPL. If during its pendency, in accordance with the
denied, file certiorari under procedure established under this Rule.
Rule 65
10. Restitution
Defendant: If granted, file a
motion for reconsideration Rule 61, Sec. 7. Restitution — When the judgment or final
from the order denying the order of the court finds that the person who has been
application for SPL. If providing support pendente lite is not liable therefor:
denied, file certiorari under
Rule 65 1. It shall order the recipient thereof to return to
the former the amounts already paid with legal
8. Enforcement of the Order interest from the dates of actual payment,
2. Without prejudice to the right of the recipient to
Rule 61, Sec. 5. Enforcement of order — If the adverse obtain reimbursement in a separate action from
party fails to comply with an order granting support the person legally obliged to give the support.
pendente lite, the court shall, motu proprio or upon 3. Should the recipient fail to reimburse said
motion; issue an order of execution against him, without amounts, the person who provided the same
prejudice to his liability for contempt. (6a) may likewise seek reimbursement thereof in a
separate action from the person legally obliged
When the person ordered to give support pendente lite to give such support.
refuses or fails to do so, any third person who furnished
that support to the applicant may, after due notice and