Civil Procedure Rule 60

Replevin
R U L E 60
REPLEVIN
Under the previous rule, it is entitled "delivery of personal
property". But its popular term is replevin.
Q: What is the main action here?
: !he main action is the recovery of possession of personal
property.
t the commencement of the main action at any time "efore
ans#er, the plainti$ may pray for an order, for the delivery of
the property to him, meanin%, he #ill as& for the issuance of
a #rit of sei'ure or #rit of replevin. (o, replevin is a term
that could "e used to descri"e the main action or to descri"e
a provisional remedy.
!his #as stated "y the () in the recent case of
BA Finance Corp. vs. CA
253 S 102
!"#$ 05% 1&&6'
ccordin% to *ustice +itu%,
rep#evin as "n(ers)oo( is *o)+
a ,or- o, principa# re-e($ an(
a provisiona# re-e($. I) -a$
re,er ei)+er )o )+e ac)ion
i)se#,% )+a) is )o re.ain )+e
possession o, persona#
proper)$ or )o )+e provisiona#
re-e($ )o (isa##o/ )+e
p#ain)i0 )o re)ain )+e )+in.
("rin. )+e pen(enc$ o, )+e
ac)ion. !he action is possessory
nature, "ein% to determine #ho
has the ri%ht to possession.
Replevin is usually described as a
mixed action, being partly in rem
and personam. In rem in so far as
the recovery of specifc personal
property is concerned and in
personam as regard to damages
involved because damages are
also sou%ht in the pleadin%s.
Section 1. Application - A party
praying for the recovery of possession
of personal property may, at the
commencement of the action or at any
time before answer, apply for an order
for the delivery of such property to
him, in the manner hereinafter
provided.
Q: When do you seek this provisional remedy
: Under section ,, at the commencement of the action or at
anytime "efore ans#er.
(o very limited. -t is shorter. -f you loo& at the old Rules, it
provides for .at the commencement of the action and at
anytime "efore *U/0123! and in the ne# rules, it4s anytime
"efore ans#er.
%ain, the main action is recovery of personal property.
25ample: (ome"ody "orro#ed your personal property. ya#
isauli. !he procedure is to 6le a case to recover possession of
the personal property and in the meantime that the case is
%oin% on, you can apply for a provisional remedy of replevin.
Section 2. Afdavit and bond.-The
applicant must show by his own
afdavit or that of some other person
who personally nows the facts!
a. That the applicant is the owner
of the property claimed,
particularly describing it, or is
entitled to the possession thereof"
b. That the property is wrongfully
detained by the adverse party,
alleging the cause of detention
thereof according to the best of
his nowledge, information, and
belief"
c. That the property has not been
distrained or taen for a ta#
assessment or a $ne pursuant to
law, or sei%ed under a writ of
e#ecution or preliminary
attachment, or otherwise placed
under custodia legis, or if so
sei%ed, that it is e#empt from
such sei%ure or custody" and
d. The actual maret value of the
property.
The applicant must also give a bond,
e#ecuted to the adverse party in
double the value of the property as
stated in the afdavit
aforementioned, for the return of
the property to the adverse party if
such return be ad&udged, and for the
payment to the adverse party of such
sum as he may recover from the
applicant in the action.
Q: What are the 'SS'(T)A* +',-)S)T'S ./ +'0*'1)(
1.' S12RN AFFI3AVI4 e5ec")e( *$ )+e app#ican) or
so-e o)+er persons /+o persona##$ 6no/s )+e
,ac) a##e.in. )+e essen)ia# a##e.a)ions as s)a)e(
in Sec)ion 2% a )o (.
Q: What does .entitled to the property7 mean under
letter a?
: !he applicant here is not the o#ner "ut he is entitled
to the property.
25ample: sold a car to B on installment "asis. B, no#
the o#ner mort%a%ed the car to ). B failed to pay . (o,
"ecame an unpaid seller and one of his remedies is to
6le a foreclosure proceedin%. 8o# can %et the
possession of the property? 9ile a provisional remedy of
replevin. in this case is no lon%er the o#ner of the
property "ut he is entitled to the property.
!here is a sli%ht chan%e in par. c compared to the
previous Rule. -n par. c, the a:ant;applicant must alle%e
99
Civil Procedure Rule 60

Replevin
under oath that the property has not "een distrained or
ta&en for a ta5 assessment or a 6ne pursuant to la# or
sei'ed under a #rit of e5ecution or preliminary
attachment or other#ise placed under custodia le%is.
!he addition is: .other#ise placed under custodia le%is7.
nd the last alle%ation is that the a:davit must alle%e
the actual mar&et value of the property. !hey added the
#ord "mar&et value". Before it is only value.
Q: )an the court ta&e co%ni'ance of a replevin suit
considerin% that the o"<ect #as the recovery of lum"er
sei'ed and forfeited "y la# enforcement a%ents of the
/23R pursuant to =./. >0??
: ns#er is in the case of /y vs. )
37 vs CA
8arc+ &% 1&&& 309 SCRA 331'
FAC4S: !#o truc&s #ith =late 3os.
@@A?BC and @BDAC,B and loaded
#ith lum"er approached the
chec&point. !hey #ere Ea%%ed do#n
"y the operatives. 9orester
Resurreccion 1a5ilom of the /23R
issued a temporary sei'ure order
and a sei'ure receipt for the t#o
vehicles and their car%o consistin%
of several pieces of lum"er . Fn
Fcto"er C0, ,GGH, more than t#o
months after the lum"er had "een
forfeited, petitioner, claimin% to "e
the o#ner of the lum"er, 6led a suit
for replevin in the Re%ional !rial
)ourt of Butuan )ity IBranch ?J for
its recovery. !he ne5t day, Fcto"er
C,, ,GGH, the trial court issued a
preliminary #rit of replevin.
;EL3: !he appeal is #ithout merit.
!he rule is that a party must
e5haust all administrative remedies
"efore he can resort to the courts. -n
a lon% line of cases, #e have
consistently held that "efore a party
may "e allo#ed to see& the
intervention of the court, it is a preA
condition that he should have
availed himself of all the means
a$orded "y the administrative
processes. 8ence, i, a re-e($
/i)+in )+e a(-inis)ra)ive
-ac+iner$ can s)i## *e resor)e(
)o *$ .ivin. )+e a(-inis)ra)ive
o<cer concerne( ever$
oppor)"ni)$ )o (eci(e on a
-a))er )+a) co-es /i)+in +is
="ris(ic)ion )+en s"c+ re-e($
s+o"#( *e e5+a"s)e( >rs) *e,ore
a co"r)?s ="(icia# po/er can *e
so".+). !he premature invocation
of a court4s intervention is fatal to
one4s cause of action. ccordin%ly,
a"sent any 6ndin% of #aiver or
estoppel, the case is suscepti"le of
dismissal for lac& of cause of action.
2' 4+e app#ican) -"s) pos) a REPLEVIN B2N3
(o"*#e )+e va#"e o, )+e proper)$.
!hat is to %uarantee the return to the adverse party in
case the return is ad<ud%ed and for dama%es caused "y
the unla#ful replevin. What is the "asis of the
<urisdiction of the court.
Q: !oes the "#$ have %urisdiction to entertain replevin
case
: Kes. -f the value of the property is =,00,000.00 and "elo#
and in 1etro 1anila, =C00,000.00.
!a&e note: !he "asis of the <urisdiction is the va#"e o, )+e
proper)$ an( N24 )+e va#"e o, )+e *on(.
Section 2. .rder.- -pon the $ling of
such afdavit and approval of the
bond, the court shall issue an order
and the corresponding writ of
replevin describing the personal
property alleged to be wrongfully
detained and re3uiring the sheri4
forthwith to tae such property into
his custody.
!he order is issued #ithout hearin%. -t is "ased only on the
alle%ation in the pleadin% "ecause of the time element.
Section 5. 6uty of the sheri4.- -pon
receiving such order, the sheri4 must
serve a copy thereof on the adverse
party, together with a copy of the
application, afdavit and bond, and
must forthwith tae the property, if
it be in the possession of the adverse
party, or his agent, and retain it in his
custody. )f the property or any part
thereof be concealed in a building or
enclosure, the sheri4 must demand
its delivery, and if it be not
delivered, he must cause the building
or enclosure to be broen open and
tae the property into his possession.
After the sheri4 has taen
possession of the property as
herein provided, he must eep it in a
secure place and shall be
responsible for its delivery to the
property entitled thereto upon
receiving his fees and necessary
e#penses for taing and eeping the
same.
Q: What happens after the court issues the &rit if replevin
: (ection B. !he sheri$ has to ta&e possession of the
property from the defendant and it #ill in the sheri$ for ?
days.
Section 7. +eturn of property.- )f the
adverse party ob&ects to the
sufciency of the applicant8s bond, or
100
Civil Procedure Rule 60

Replevin
of the surety or sureties thereon, he
cannot immediately re3uire the
return of the property, but if he does
not so ob&ect, he may, at any time
before the delivery of the property to
the applicant, re3uire the return
thereof, by $ling with the court
where the action is pending a bond
e#ecuted to the applicant, in double
the value of the property as stated
in the applicant8s afdavit for the
delivery thereof to the applicant, if
such delivery be ad&udged, and for
the payment of such sum to him as
may be recovered against the adverse
party, and by serving a copy of such
bond on the applicant.
Section 9. 6isposition of property
by sheri4.- )f within $ve:7; days after
the taing of the property by the
sheri4, the adverse party does not
ob&ect to the sufciency of the bond,
or of the surety or sureties thereon"
or if the adverse party so ob&ects and
the court afrms its approval of the
applicant8s bond or approves a new
bond, or if the adverse party re3uires
the return of the property but his
bond is ob&ected to and found
insufcient and he does not
forthwith $le an approved bond, the
property shall be delivered to the
applicant. )f for any reason the
property is not delivered to the
applicant, the sheri4 must return it to
the adverse party.
Under (ection ?, there are t#o options or alternatives for the
defendant:
,. =ut up a counterA"ond #hich is dou"le the value of
the property. -f he does so, he has the ri%ht to
demand the return of the property to him.
C. F"<ect to the su:ciency of the replevin "ond.

=urpose of the counterA"ond: !he counterA"ond is to ans#er
for dama%es that the plainti$ may su$er if it turns out that
all alon% the plainti$ is entitled the possession of property.
nd also if after the case is #on "y the plainti$ and
defendant is ordered to retain the property, "y that time, the
property is already dilapidated and depreciated. !herefore,
the plainti$ is no lon%er #illin% to accept it and therefore has
to hold the counterA"ond lia"le for the value of the property.
lso #ithin the 6veAday period, either the defendant #ill put
up a counterA"ond or o"<ect to the su:ciency of the replevin
"ond.
ccordin% to <urisprudence, i, )+e (e,en(an) @"es)ions
)+e s"<cienc$ o, )+e *on(% )+en +e can no #on.er
re@"ire )+e re)"rn o, )+e proper)$ *$ p"))in. )+e
co"n)erA*on(. !he authority there is the rulin% in the case
of
La 4on(ena 3is)i##ers Inc. vs. CA
20& S 553
!he () e5plained: -f the defendant in
the replevin action #ishes to have the
property ta&en "e restored to him, he
should #ithin ? days from such
ta&in%:
,.J post a counterA"ond dou"le the value
of the property ta&en,
C.J serve the plainti$ a copy thereof:
Both reLuirements as lon% as
compliance there#ith #ithin the ?A
day period mentioned "ein%
mandatory. lternatively the defendant
may o"<ect to the su:ciency of the
plainti$ "onds "ut if he o"<ects to the
su:ciency of the "ond, he cannot
reLuire the return of the property "y
puttin% up a counterA"ond.
Q: What is the reason #hy the property has to stay #ith the
sheri$ for ? days?
: Because durin% the ?Aday period, the defendant has to
thin& #hich of the t#o options; alternatives he #ill choose.
Q: (uppose the defendant #ill not use any of the options?
: !he sheri$ #ill deliver the property to the defendant.
Q: )an the defendant 6le a motion to dissolve the #rit of
replevin on the %round that the plainti$ has no ri%ht to 6le
a case, meanin%, he is not entitled to the possession?
: s e5plained "y the () in Da !ondena /istillers case, that
is not a %round. -t should "e resolved in the main action.
/i$erence "et#een Replevin and ttachment under Rule ?>
or -n<unction under Rule ?M:
Replevin ttachment N -n<unction
!itle or ri%ht to the property
cannot "e Luestioned in the
motion to dischar%e the
#rit of replevin. -t must "e
threshed out durin% the
trial.
Kou can Luestion the title or
ri%ht of the plainti$ to attach
the property.
!he court said in Da !ondena, 'in other &ords the la& does
not allo& the defendant to fle a motion to discharge or
destroy the &rit of sei(ure or delivery on the grounds of
insu)ciency of the complaint or on the grounds relied upon
therefore and thereby put at issue the matter of title or
right of possession over the specifc chattel sub%ect of the
replevin. #he policy apparently being that said matter should
be ventilated and determined only at the trial on the merits.
#herefore, the defendant cannot fle a motion to dissolve the
&rit of replevin on the ground that the plainti* has no right+.
-n the case of
Araves) In("s)ria# P+i#ippines vs. CA
216 S 602
101
Civil Procedure Rule 60

Replevin
82D/: !he reLuirement in (ection ? N 6
that there must "e a counterA "ond
assumes that the replevin "ond validly
6led. (o, if there is a void replevin "ond,
there is no o"li%ation for the defendant to
put up a counterA"ond. " !he
reLuirement of postin% a counterA"ond to
acLuire reApossession of the chattel
su"<ect of the #rit of replevin presupposes
a valid #rit of replevin." !he assumption is
that the #rit of replevin is valid.
4a6e no)e: I, )+e (e,en(an) p")s "p a co"n)erA*on(% +e
is sa$in. )+a) )+e /ri) o, rep#evin >#e( *$ )+e p#ain)i0
is va#i(.
Section <. 0roceedings where property
claimed by third person.- )f the
property taen is claimed by any
person other than the party against
whom the writ of replevin had been
issued or his agent, and such person
maes an afdavit of his title thereto,
or right to the possession thereof,
stating the grounds therefor, and
serves such afdavit upon the sheri4
while the latter has possession of
the property and a copy thereof upon
the applicant, the sheri4 shall not be
bound to eep the property under
replevin or deliver it to the applicant
unless the applicant or his agent, on
demand of said sheri4, shall $le a
bond approved by the court to
indemnify the third-party claimant in
a sum not less than the value of the
property under replevin as provided
in section 2 hereof. )n case of
disagreement as to such value, the
court shall determine the same. (o
claim for damages for the taing or
eeping of the property may be
enforced against the bond unless the
action therefor is $led within one
hundred twenty :12=; days from the
date of $ling of the bond.
The sheri4 shall not be liable for
damages, for the taing or eeping of
such property, to any such third party
claimant if such bond shall be $led.
(othing herein contained shall
prevent such claimant or any third
person from vindicating his claim to
the property, or prevent the
applicant from claiming damages
against a third-party claimant who
$led a frivolous or plainly spurious
claim, in the same or a separate
action.
>hen the writ of replevin is issued in
favor of the +epublic of the
0hilippines, or any ofcer duly
representing it, the $ling of such bond
shall not be re3uired, and in case the
sheri4 is sued for damages as a
result of the replevin, he shall be
represented by the Solicitor ?eneral,
and if held liable therefor, the actual
damages ad&udged by the court shall
be paid by the (ational Treasurer out
of the funds to be appropriated for
the purpose.
Q: (uppose the property sei'ed is claimed "y a third person.
What is the remedy of the third person ?
: !he same remedy of !2R)2R-, thirdAparty claim or,
there is nothin% there preventin% him to 6le a correct action
to liti%ate his claim.
(o, third party claim is a remedy applica"le in e5ecution,
preliminary attachment and replevin. (ection > of Rule 60
should "e read also #ith (ection ,6 of Rule HG and (ection
,B of Rule ?> on third party claim on preliminary attachment.
Section @. +eturn of papers.-The
sheri4 must $le the order, with his
proceedings indorsed thereon, with
the court within ten :1=; days after
taing the property mentioned
therein.
!he sheri$ must ma&e a report to the court as to #hat
happened to the property ordered to "e sei'ed "y the court.
Section A. Budgment - After trial of
the issues, the court shall determine
who has the right of possession to
and the value of the property and
shall render &udgment in the
alternative for the delivery thereof to
the party entitled to the same, or for
its value is case delivery cannot be
made, and also for such damages as
either party may prove, with costs.
Q: What is the nature of the %udgment in a replevin action
: !he <ud%ment is DWK( -3 !82 D!2R3!-+2, either the
defendant #ill "e ordered to return the chattel to the plainti$
or alternatively to pay for the value.
Q: Why ?
: ccordin% to the (), the reason is to a$ord the plainti$ a
measure of relief. -f the property cannot "e returned in
su"stantially the same condition, the ri%ht to re<ect the
property can "e e5ercised not only after <ud%ment "ut also
in see&in% delivery of the property pendente lite. !he
personal property is useless. (o, it #ill also ans#er for
dama%es.
Section 1=. Budgment to include
recovery against sureties.-The
amount, if any, to be awarded to any
party upon any bond $led in
accordance with the provisions of
this +ule, shall be claimed,
ascertained, and granted under the
same procedure as prescribed in
section 2= of +ule 7<.
-t should "e recovered in the very same case and not in a
102
Civil Procedure Rule 60

Replevin
separate action.
103