Prov Rem Reviewer-Final

PROVISIONAL REMEDIES
2010 San Beda Memory Aid,

Atty. Geraldine Quimosing-Tiu
Riano Reviewer, Syllabus
Provisional Remedies are temporary, auxiliary
and ancillary remedies available to a litigant for
the protection and preservation of his rights while
the main action is pending. (Riano, Civil
Procedure, 2009 Ed.)
Writs and processes which are not main
actions and they presuppose the existence of
a principal action.
The word Provisional Remedy is suggestive. It
is something temporary.
Provisional Remedies are remedies which are
temporary and is defined by the Supreme
Court as remedies which parties may resort
for the preservation or protection of their
rights and interests and for no other purpose,
during the pendency of the principal action.
So these are the remedies resorted to just to
preserve the rights of the parties while the
case is pending.
The FOLLOWING are the provisional remedies
provided for in the Rules of Court:
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin or delivery of private property (Rule
60)
5. Support Pendente Lite (Rule 61)
These provisional remedies are also available in
criminal cases (Rule 127), and in some special
civil actions and special proceedings.
Purpose of Provisional Remedies:
Provisional remedies are resorted to by litigants
for any of the following reasons:
1. To preserve or protect their rights or interest
while the main action is pending;
2. To secure the judgment;
3. To preserve the status quo; or
4. To preserve the subject matter of the action.
OTHER PROVISIONAL REMEDIES
A. Issued by a family court
1. Temporary Custody of Minor Children
2. Order allowing Visitation Rights of Parents
B. Interim Reliefs in a Petition for a Writ of
Amparo
1. Temporary Protection Order
2. Inspection Order
3. Production Order
4. Witness Protection Order
Note: PD 1818 prohibits the issuance of
injunctive writs not only against government
entities but also against any person or entity
involved in the execution, implementation, and
operation of government infrastructure projects.
Inferior courts can grant all appropriate

provisional remedies, provided the main case
is within its jurisdiction (Sec. 33 [1] BP 129)
RULE 57
PRELIMINARY ATTACHMENT
Gene Geocaniga, Cherry Lynn Trinidad

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Sources:
Herrera Vol. III 2006,
Preliminary attachment is a provisional

remedy issued upon order of the court where an
action is pending to be levied upon the property
of the defendant so that it may be held as
security for the satisfaction of whatever judgment
may be rendered in the case (Davao Light and
Power, Inc. vs. CA, 204 SCRA 343).
Section
1.
Grounds
upon
which
attachment
may
issue.
At
the
commencement of the action or at any
time before entry of judgment, a plaintif
or any proper party may have the
property of the adverse party attached
as security for the satisfaction of any
judgment that may be recovered in the
following cases:
(a) In an action for the recovery of a
specified amount of money or damages,
other than moral and exemplary, on a
cause of action arising from law,
contract, quasi-contract, delict or quasidelict against a party who is about to
depart from the Philippines which intent
to defraud his creditors;
(b) In an action for money or property
embezzled or fraudulently misapplied or
converted to his own use by a public
officer, or an officer of a corporation, or
an attorney, factor, broker agent, or
clerk, in the course of his employment as
such, or by other person in a fiduciary
capacity, or for a willful violation of duty;
(c) In an action to recover the
possession of property unjustly or
fraudulently
taken,
detained
or
converted, when the property, or any
part thereof, has been concealed,
removed, or disposed of to prevent its
being found or taken by the applicant or
an authorized person;
(d) In an action against a party who
has been guilty of a fraud in contracting
the debt or incurring the obligation upon
which the action is brought, or in the
performance thereof;
(e) In an action against a party who
has removed or disposed of his property,
or is about to do so, with intent to
defraud his creditors; or
(f) In an action against a party who
does not reside and is not found in the
Philippines, or on whom summons may
be served by publication. (1a)
The proper party may have the property of the
adverse party attached at the commencement of
the action or at any time before entry of
judgment.
When issued: (REPoGReS)
1. In actions for Recovery of a specified sum of
money or damages, except moral and
exemplary, on a cause of action arising from
law, contract, quasi-contract, delict or quasidelict against a party about to depart from the
Philippines with intent to defraud his
creditors;
Sources:
Cases:
K.O. GLASS CONST. CO. vs. VALENZUELA, 116
SCRA 563 - mere allegation that the defendant is
a foreigner is insufficient. There being no
showing that the defendants are about to depart
from the Philippines with intent to defraud their
creditor, or that they are non-resident aliens, the
attachment of their properties is not
justified.
of to prevent its being found by the applicant

or any authorized person;
Cases:
SANTOS vs. BERNABE, 54 Phil. 19 as
distinguished from replevin the personal
property in this case belongs to the defendant
and the plaintiff seeks to attach it to secure the
satisfaction of any judgment that he may recover
from the defendant.
GENERAL vs. DE VENECIA, 78 Phil. 780 - On the

question of validity of the attachment, "the
GENERAL RULE is that, unless the statute
expressly so provides, the remedy by
attachment is not available in respect to a
demand which is not due and payable, and
if an attachment is issued upon such a
demand without statutory authority it is
void."
It must be observed that under our rules
governing the matter the person seeking a
preliminary attachment must show that "a
sufficient cause of action exists" and that
the amount due him is as much as the sum
for which the order of attachment is
granted" (sec. 3, Rule 59). Inasmuch as the
commitment of Luis F. General has not as yet
become demandable, there existed no cause of
action against him, and the complaint should
have been dismissed and the attachment lifted.
CALO vs. ROLDAN, 76 Phil. 445 - ATTACHMENT

may be issued only in the cases or actions
specifically stated in section 1, Rule 59, in order
that the defendant may not dispose of his
property attached, and thus secure the
satisfaction of any judgment that may be
recovered by plaintiff from defendant. For that
reason a property subject of litigation between
the parties, or claimed by plaintiff as his, cannot
be attached upon motion of the same plaintiff.
The provisional remedy proper to plaintiffs'
action of injunction is a preliminary prohibitory
injunction, if plaintiffs' theory, as set forth in the
complaint, that he is the owner and in actual
possession of the premises is correct.
INSULAR SAVINGS BANK vs. CA, 460 SCRA 122

writ of preliminary attachment cannot be issued
for moral and exemplary and other unliquidated
or contingent claims.
2. In actions for money or property Embezzled or
fraudulently misapplied or converted to his
own use by a public officer, or an officer of a
corp., or an attorney, factor, broker, agent or
clerk, in the course of his employment as
such, or by any person in a fiduciary capacity
or for a wilful violation of duty;
Cases:
TAN vs. ZANDUETA, 61 Phil. 526 a writ of
preliminary attachment is proper in an action
against a person to recover the share of the coowner.
WALTER E. OLSON AND CO. vs. OLSEN, 48 Phil.
238 - The conduct of the defendant-appellant (a
corporate officer) in connection with the funds of
the corporation he represented was more than an
irregularity; and while it is not sufficiently serious
to constitute a criminal fraud, it is undoubtedly a
fraud of a civil character, because it is an abuse
of confidence to the damage of the corporation
and its stockholders, and constitutes one of the
grounds enumerated in section 424, in
connection with section 412, of the Code of Civil
Procedure for the issuance of a preliminary
attachment (now Rule 57 of the Rules of Court).
3. In actions to recover the Possession of
property unjustly or fraudulently taken,
detained or converted when the property or
part thereof, has been concealed or disposed
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4. In actions against a person Guilty of fraud in

contracting the debt (dolo causante) or
incurring or performing an obligation upon
which the action is based (dolo incidente);
Case:
STATE INVESTMENT HOUSE, INC. vs. CA, 163
SCRA 247 - It can hardly be doubted that those
representations in petitioner's printed deeds of
sale were false. But false though they were, the
petitioners cannot claim to have been deceived
or deluded by them because it knew, or should
have known , that the issuer of the checks, Pedro
O. Valdez, was not a "buyer" of the "merchandise
and personalities made in the ordinary course of
business" by P.O. Valdez, Inc. of which he was the
president.
Since the petitioner failed to prove during the
hearing of private respondents' motion to lift the
preliminary writ of attachment, that P.O. Valdez,
Inc. received from it independent consideration
for the "sale" of Pedro Valdez' checks to it, apart
from the loans previously extended to the
corporations, We are constrained to affirm the
finding of the court of Appeals that Valdez's
checks are "mere evidence of the outstanding
obligation of P.O. Valdez, Inc. to the petitioner."
The petition was not defrauded by their issuance
for the loans had been contracted and released to
P.O. Valdez, Inc. long before the checks were
issued.
5. In actions against a party who has Removed
or disposed of his property, or is about to do
so, with intent to defraud his creditors;
Cases:
ABOITIZ vs. COTABATO BUS CO., 105 SCRA 88 insolvency was not a ground for preliminary
attachment. You cannot find it in the Rules. Even
if he is on the verge of insolvency but he is not
running away from his creditors, you cannot
attach.
PEOPLES BANK & TRUST CO. vs. SYVELS INC.,

164 SCRA 247 - intent to defraud may be and
usually is inferred from the facts and
circumstances of the case; it can rarely be proved
by direct evidence. It may be gleaned also from
the statements and conduct of the debtor, and in
this connection, the principle may be applied that
every person is presumed to intend the natural
consequences of his acts
ADLAWAN vs. TORRES, 233 SCRA 645 (1994) - It
was held that the execution of a mortgage in
favor of another creditor is not conceived by the
Rules as one of the means of fraudulently
disposing of one's property. By mortgaging a
piece of property, a debtor merely subjects it to a
lien but ownership thereof is not parted with.
Furthermore, the inability to pay one's
creditors is not necessarily synonymous with
fraudulent intent not to honor an obligation.
Proof of defraud is mandated by paragraphs
(d) and (e) of Section 1, Rule 57 of the Revised
Rules of Court on the grounds upon which
attachment may issue. Thus, the factual basis on
defendant's intent to defraud must be clearly
alleged in the affidavit in support of the prayer for
the writ of attachment if not so specifically
alleged in the verified complaint.
6. In actions against non-residents not found in
the Philippines, or on whom Summons is
served by publication.
Cases:
MIAILHE vs. DE LENCQUESAING, 142 SCRA 694
Non-resident defendant or on whom summons
may be served by publication This is applicable
only where the plaintiffs claim is liquidated but
not to unliquidated damages.
CLAUDE
NEON
LIGHTS
vs.
PHILIPPINE
ADVERTISING CORP., 57 Phil 607 The rule does
not include foreign corporations duly licensed to
do business in the Philippines but refers only to
natural persons.
STATE INVESTMENT HOUSE, INC. vs. CITIBANK,
N.A., 203 SCRA 9 - a foreign corporation licitly
doing business in the Philippines, which is a
defendant in a civil suit, may not be considered a
non-resident within the scope of the legal
provision authorizing attachment against a
defendant not residing in the Philippine Islands;"
in other words, a preliminary attachment may not
be applied for and granted solely on the asserted
fact that the defendant is a foreign corporation
authorized to do business in the Philippines
and is consequently and necessarily, "a party
who resides out of the Philippines."
NORTHWEST AIRLINE vs. CA, 241 SCRA 192 - This
Court agrees that if the defendant in a foreign
court is a resident in the court of that foreign
court such court could acquire jurisdiction over
the person of the defendant but it must be served
upon the defendant in the territorial jurisdiction of
the foreign court. Such is not the case here
because the defendant was served with summons
in the Philippines and not in Japan.
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Sources:
Jurisprudence so holds that the foreign or

domestic character of a corporation is to be
determined by the place of its origin, where its
charter was granted and not by the location of its
charter was granted and not by the location of its
business activities. A corporation is a "resident"
and an inhabitant of the state in which it is
incorporated and no other.
Defendant-appellee is a Philippine Corporation
duly organized under the Philippine laws. Clearly,
its residence is the Philippines, the place of its
incorporation, and not Japan. While defendantappellee maintains branches in Japan, this will not
make it a resident of Japan. A corporation does
not become a resident of another by engaging in
business there even though licensed by that state
and in terms given all the rights and privileges of
a domestic corporation.
On this premise, defendant-appellee is a nonresident corporation. As such, court processes
must be served upon it at a place within the state
in which the action is brought and not elsewhere
MABANAG vs. GALLEMORE, 81 Phil. 254 - As a
general rule, when the defendant is not residing
and is not found in the Philippines, the Philippine
courts cannot try any case against him because
of the impossibility of acquiring jurisdiction over
his person, unless he voluntarily appears in court.
But, when the action affects the personal status
of the plaintiff residing in the Philippines, or is
intended to seize or dispose of any property, real
or personal, of the defendant, located in the
Philippines, it may be validly tried by the
Philippine courts, for then, they have jurisdiction
over the res, i.e., the personal status of the
plaintiff or the property of the defendant, and
their jurisdiction over the person of the nonresident defendant is not essential.
The Court has acquired jurisdiction of the case
at bar by virtue of the attachment of the
defendant's credit.
PCIB vs. ALEJANDRO, September 21, 2007 In
actions in
personam against
residents
temporarily out of the Philippines, the court
need not always attach the defendants
property in order to have authority to try
the case. Where the plaintiff seeks to attach the
defendants property and to resort to the
concomitant service of summons by publication,
the same must be with prior leave, precisely
because, if
the
sole
purpose
of
the
attachment is for the court to acquire
jurisdiction, the latter must determine whether
from the allegations in the complaint, substituted
service (to persons of suitable discretion at the
defendants residence or to a competent person
in charge of his office or regular place of
business) will suffice, or whether there is a need
to attach the property of the defendant and
resort to service of summons by publication in
order for the court to acquire jurisdiction over the
case and to comply with the requirements of due
process.
Note: The foregoing enumeration is EXCLUSIVE.
Except for No. 6, all the grounds alleged the
commission of fraud by the person against whom

it is issued.
Purposes:
1. To seize the property of the debtor in advance
of final judgment and to hold it for purposes
of satisfying the said judgment (Insular Bank
of Asia and America vs. CA, 190 SCRA 629);
and
2. To enable the court to acquire jurisdiction over
the action by the actual or constructive
seizure of the property in those instances
where personal service of summons on the
creditor cannot be effected.
Classes of Attachment
Preliminary
Final Attachment
Attachment
(Rule 39)
(Rule 57)
It
is
an
auxiliary It is a means for the
remedy to give security execution of a final
for a judgment still to judgment.
be rendered.
There
is
no
sale It should always be
because a decision has accompanied by a sale
not yet been rendered.
at public auction.
Resorted to at the Available
after
the
commencement of the judgment in the main
action or at any time action
had
become
before
entry
of executory, and for the
judgment,
for
the satisfaction
of
said
temporary seizure of judgment.
property of the adverse
party.
The proceeds of the The proceeds of the
sale are in custodial sale are turned over to
legis.
the attaching creditor.
Proceeding in attachment is in rem where the
defendant does not appear, and in personam
where he appears in the action (Regalado, F.
Remedial Law Compendium)
THREE (3) STAGES in the grant of
Preliminary Attachment
1. The court issues the order granting the
application;
2. The writ of attachment issues pursuant to the
order granting the writ;
3. The writ is implemented.
Note:
For the initial two stages, it is NOT
necessary that jurisdiction over the person of the
defendant be first obtained.
HOWEVER, once the implementation of the writ
commences, the court must have acquired
jurisdiction over the defendant for without such
jurisdiction, the court has no power or authority
to act in any manner against the defendant
(Mangila vs. CA, GR No. 125027, August 12,
2002).
Section 2. Issuance and contents of
order. An order of attachment may be
issued either ex parte or upon motion
with notice and hearing by the court in
which the action is pending, or by the
TAU MU Page 4 of 42
Sources:
Court of Appeals or the Supreme Court,

and must require the sherif of the court
to attach so much of the property in the
Philippines of the party against whom it
is issued, not exempt from execution, as
may
be
sufficient
to
satisfy
the
applicant's demand, unless such party
makes deposit or gives a bond as
hereinafter provided in an amount equal
to that fixed in the order, which may be
the amount sufficient to satisfy the
applicant's demand or the value of the
property to be attached as stated by the
applicant, exclusive of costs. Several
writs may be issued at the same time to
the sherifs of the courts of diferent
judicial regions.
Cases:
SIEVERT vs. CA, 168 SCRA 692 - A court which
has not acquired jurisdiction over the person of
defendant, cannot bind that defendant whether in
the main case or in any ancillary proceeding such
as attachment proceedings. The service of a
petition for preliminary attachment without the
prior or simultaneous service of summons and a
copy of the complaint in the main case and
that is what happened in this case does not of
course confer jurisdiction upon the issuing court
over the person of the defendant.
Issued either ex parte or upon motion with notice
and hearing by the court in which the action is
pending.
However, when issued ex parte, he writ cannot be
enforced and may not be validly implemented
unless preceded by a service of summons upon
the defendant, or simultaneously accompanied
by service of summons, a copy of the complaint,
the application for attachment, the order of
attachment and the attachment bond (Davao
Light and Power Co., Inc. vs. CA, 204 SCRA 343;
Manila vs. CA, 387 SCRA 162).
CUARTERO vs. CA, 3rd Division, 212 SCRA 260 the only requisites for the issuance of the writ are
the affidavit and bond of the applicant.
No notice to the adverse party or
hearing of the application is required
inasmuch as the time which the hearing will take
could be enough to enable the defendant to
abscond or dispose of his property before a writ
of attachment issues. In such a case, a hearing
would render nugatory the purpose of this
provisional remedy. The ruling remains good
law. There is, thus, no merit in the private
respondents'
claim of violation of their
constitutionally guaranteed right to due process.
It is clear from our pronouncements that a
writ of preliminary attachment may issue
even before summons is served upon the
defendant. However, we have likewise ruled
that the writ cannot bind and affect the
defendant until jurisdiction over his person
is eventually obtained. Therefore, it is
required that when the proper officer
commences implementation of the writ of
Sources:
attachment, service of summons should be

simultaneously made.
writ totally defective as the judge issuing it acts

in excess of jurisdiction.
SALAS vs. ADIL, 90 SCRA 121 - A preliminary

attachment is a rigorous remedy, which exposes
the debtor to humiliation and annoyance, such it
should not be abused as to cause unnecessary
prejudice. It is, therefore, the duty of the
court, before issuing the writ, to ensure
that all the requisites of the law have been
complied with; otherwise the judge acts in
excess of his jurisdiction and the so issued
shall be null and void.
The authorities agree that the writ of
attachment is not available in a suit for
damages where the amount claimed is
contingent or unliquidated.
Ratio: No notice to the adverse party or hearing

of the application is required, as the time which
the hearing will entail could be enough to enable
the defendant abscond or dispose of his property
before the writ issues (Regalado, F. Remedial Law
Compendium)
xxx but they may be issued when the plaintif's

claim arises out of contract either express or implied,
and the demand is liquidated, that is, the amount of
the claim is not contingent, is capable of being
definitely ascertained by the usual means of evidence,
and does not rest in the discretion of the jury.
TING vs. VILLARIN, 176 SCRA 532 - The complaint

did not provide for a sufficient basis for the
issuance of a writ of preliminary attachment. It is
not enough for the complaint to ritualistic ally
cite, as here, that the defendants are "guilty of
fraud in contracting an obligation."
An order of attachment cannot be issued
on a general averment, such as one
ceremoniously quoting from a pertinent
rule. The need for a recitation of factual
circumstances that support the application
becomes more compelling here considering
that the ground relied upon is "fraud in
contracting an obligation." The complaint utterly
failed to even give a hint about what constituted
the fraud and how it was perpetrated. Fraud
cannot be presumed.
Section 3. Affidavit and bond required.
An order of attachment shall be granted
only when it appears by the affidavit of
the applicant, or of some other person
who personally knows the facts, that a
sufficient cause of action exists, that the
case is one of those mentioned in
section 1 hereof, that there is no other
sufficient security for the claim sought to
be enforced by the action, and that the
amount due to the applicant, or the
value of the property the possession of
which he is entitled to recover, is as
much as the sum for which the order is
granted above all legal counterclaims.
The affidavit, and the bond required by
the next succeeding section, must be
duly filed with the court before the order
issues.
The only requisite for the issuance of the writ of
preliminary attachment are the affidavit and bond
of the applicant.
Note:
The affidavit must contain all the
allegations required; failure to do so, renders the
TAU MU Page 5 of 42
Contents of the Affidavit

1. A sufficient cause of action exists;
2. Case is one of those mentions in Sec. 1;
3. No other sufficient security for the claim
sought to be enforced by action;
4. Amount due to the applicant or possession of
which is entitled to recover is as much as the
sum for which the order is granted above all
legal counterclaims.
Reason for the Bond
The bond issued upon an application for
preliminary attachment answers for all damages,
incurred at whatever stage, which are sustained
by reason of the attachment (CARLOS vs.
SANDOVAL, 471 SCRA 266)
SALGADO vs. COURT OF APPEALS, MARCH 26,
1984 Since the attachment is a harsh and
rigorous remedy which exposes the debtor to
humiliation and annoyance, the rule authorizing
its issuance must be strictly construed in favor of
defendant. It is the duty of the court before
issuing the writ to ensure that all the requisites of
the law have been complied with.
K.O. GLASS CONSTRUCTION vs. VALENZUELA, 116
SCRA 563 - While Pinzon may have stated in his
affidavit that a sufficient cause of action exists
against the defendant Kenneth O. Glass, he did
not state therein that "the case is one of those
mentioned in Section 1 hereof; that there is no
other sufficient security for the claim sought to be
enforced by the action; and that the amount due
to the applicant is as much as the sum for which
the order granted above all legal counter-claims."
It has been held that the failure to allege in
the affidavit the requisites prescribed for
the issuance of a writ of preliminary
attachment, renders the writ of preliminary
attachment issued against the property of
the defendant fatally defective, and the
judge issuing it is deemed to have acted in
excess of his jurisdiction.
LA GRANJA, INC. vs. SAMSON, 58 PHIL. 378
It will be seen that the legal provision just cited
orders the granting of a writ of attachment when
it has been made to appear by affidavit that the
facts mentioned by law as sufficient to warrant
the issuance thereof, exist. Although the law
requires nothing more than the affidavit as a
means of establishing the existence of such facts,
nevertheless,
such
affidavit
must
be
sufficient to convince the court of their
existence, the court being justified in
rejecting the affidavit if it does not serve
this purpose and in denying the petition for

an order of attachment.
The mere filing of an affidavit executed in
due form is not sufficient to compel a judge
to issue an order of attachment, but it is
necessary that by such affidavit it be made to
appear to the court that there exists sufficient
cause for the issuance thereof, the determination
of such sufficiency being discretionary on the part
of the court.
GUZMAN vs. CATOLICO, 65 PHIL. 261 The law
authorizing the issuance of a writ of preliminary
attachment should, therefore, be construed
strictly in favor of the judge should require that
all the requisites prescribed by law be
complied with, without which a judge
acquires no jurisdiction to issue the writ. If
he does so in spite of noncompliance with said
requisites, he acts in excess of his jurisdiction and
with the writ so issued by him will be null and
void.
Where the affidavit for attachment is fatally
defective, the attachment must be held to have
been improperly or irregularly issued and must be
discharged, and such fatal defect cannot be
cured by amendment (CU UNJIENG vs.
GODDARD, 58 PHIL. 482).
JARDINE MANILA FINANCE, INC. vs. COURT OF
APPEALS 171 SCRA 636 The general rule is
that the affidavit is the foundation of the
writ, and if none be filed or one be filed which
wholly fails to set out some facts required by law
to be stated therein, there is no jurisdiction and
the proceedings are null and void.
Section 4. Condition of applicant's
bond. The party applying for the order
must thereafter give a bond executed to
the adverse party in the amount fixed by
the court in its order granting the
issuance of the writ, conditioned that
the latter will pay all the costs which
may be adjudged to the adverse party
and all damages which he may sustain
by reason of the attachment, if the court
shall finally adjudged that the applicant
was not entitled there to.
Bond posted by the attaching creditor answers for
the damages and costs which may be adjudged
to the adverse party arising from and by reason
of the attachment.
CALDERON vs. IAC. 155 SCRA 531 The responsibility of the surety arises "if the court
shall finally adjudge that the plaintiff was not
entitled thereto." In Rocco vs. Meads, 96 Phil.
Reports 884, we held that the liability attaches if
the plaintiff is not entitled to the attachment
because the requirements entitling him to the
writ are wanting, or if the plaintiff has no right to
the attachment because the facts stated in his
affidavit, or some of them, are untrue. It is,
therefore, evident that upon the dismissal of an
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Sources:
attachment wrongfully issued, the surety is liable

for damages as a direct result of said attachment.
ARELLANO vs. FLOJO, 238 SCRA 72 No bond can
be confiscated to answer for the damages
sustained by defendants. The judge discovered
that only a promissory note in the form of an
affidavit executed by the bondsmen denominated
as an attachment bond appears on the record.
Had
respondent
carefully
examined
the
undertaking filed before he issued the writ of
attachment, such a situation could have been
obviated. Where a statute authorizing
attachment requires, as a condition to the
issuance of the writ, that a bond shall be
given by plaintif to indemnify defendant for
any loss or injury resulting from the
attachment in case it proves to be wrongful,
a failure to give such bond is fatal, and an
attachment issued without the necessary
bond is invalid.
Section
5.
Manner
of
attaching
property. The sherif enforcing the writ
shall without delay and with all
reasonable diligence attach, to await
judgment and execution in the action,
only so much of the property in the
Philippines of the party against whom
the writ is issued, not exempt from
execution, as may be sufficient to satisfy
the applicant's demand, unless the
former makes a deposit with the court
from which the writ is issued, or gives a
counter-bond executed to the applicant,
in an amount equal to the bond fixed by
the court in the order of attachment or
to the value of the property to be
attached, exclusive of costs. No levy on
attachment pursuant to the writ issued
under section 2 hereof shall be enforced
unless
it
is
preceded,
or
contemporaneously
accompanied,
by
service of summons, together with a
copy of the complaint, the application
for attachment, the applicant's affidavit
and bond, and the order and writ of
attachment, on the defendant within the
Philippines.
The
requirement
of
prior
or
contemporaneous service of summons
shall not apply where the summons
could not be served personally or by
substituted service despite diligent
eforts, or the defendant is a resident of
the Philippines temporarily absent there
from, or the defendant is a non-resident
of the Philippines, or the action is one in
rem or quasi in rem.
Note: Levy shall not be made unless preceded
or contemporaneously accompanied by: (SCABO)
1. Service of summons;
2. A Copy of the complaint;
3. Application for attachment;
4. Affidavit and Bond of the application; and
5. Order and writ of attachment.
BUT prior or contemporaneous service of

summons shall NOT APPLY when:
1. Summons could not be served personally or
by substituted service;
2. Defendant is a resident of the Philippines
temporarily absent therefrom;
3. Defendant is a non-resident; and
4. The action is one in rem or quasi rem.
Note: All properties exempt from execution are
likewise exempt from attachment (Sec. 2, Rule
57; Sec. 13, Rule 39).
Properties that cannot be attached
1. Family home under Article 53 of the Family
Code;
2. Title is not in the name of the defendant
unless it is shown that he has beneficial
interest in property (Gotauco vs. Registry of
Deeds, 59 Phil. 756);
3. The laborers wages shall not be subject to
attachment except for debts incurred for food,
shelters, clothing and medical attendance
(Article 1208, NCC).
HB ZACHRY vs. COURT OF APPEALS, 232 SCRA
329 A distinction should be made between
the issuance and the enforcement of the writ.
The trial court has unlimited power to issue
the writ upon the commencement of the
action even before it acquires jurisdiction
over the person of the defendant, but
enforcement thereof can only be validly
done after it shall have acquired such
jurisdiction.
OATE vs. ABROGAR (En Banc), 240 SCRA 659
At the very least, then, the writ of attachment
must be served simultaneously with the service of
summons before the writ may be enforced. As the
properties of the petitioners were attached by the
sheriff before he had served the summons on
them, the levies made must be considered void.
While the petition for a writ of preliminary
attachment
may
be granted and
the
writ
itself issued before the defendant is summoned,
the
writ
of
attachment
cannot
be implemented until jurisdiction over the person
of the defendant is obtained.
OATE vs. ABROGAR (2nd Div), 230 SCRA 181 An
exception to the established rule on the
enforcement of the writ of attachment can be
made where a previous attempt to serve the
summons and the writ of attachment failed due
to factors beyond the control of either the plaintiff
or the process server, provided that such service
is effected within a reasonable period thereafter.
Several reasons can be given for the exception.
First, there is a possibility that a defendant,
having been alerted of plaintiffs action by the
attempted service of summons and the writ of
attachment, would put his properties beyond the
reach of the plaintiff while the latter is trying to
serve the summons and the writ anew. By the
time the plaintiff may have caused the service of
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summons and the writ, there might not be any

property of the defendant left to attach.
Second,
the
court
eventually
acquired
jurisdiction over the petitioners six days later. To
nullify the notices of garnishment issued prior
thereto would again open the possibility that
petitioners would transfer the garnished monies
while Sun Life applied for new notices of
garnishment.
Third, the ease by which a writ of attachment
can be obtained is counter-balanced by the ease
by which the same can be discharged: the
defendant can either make a cash deposit or post
a counter-bond equivalent to the value of the
property attached. The petitioners herein tried to
have the writ of attachment discharged by
posting a counter-bond, the same was denied by
respondent Judge on the ground that the amount
of the counter-bond was less than that of Sun
Life's bond.
Section 6. Sheriff's return. After
enforcing the writ, the sherif must
likewise without delay make a return
thereon to the court from which the writ
issued, with a full statement of his
proceedings under the writ and a
complete inventory of the property
attached, together with any counterbond given by the party against whom
attachment is issued, and serve copies
thereof on the applicant.
Note: A writ of attachment has no lifetime as
distinguished from a writ of execution (Roque vs.
CA, 93 SCRA 540). The new Rules fixes the
lifetime of a writ of execution at five (5) years
from the date of entry of judgment (Section 6,
Rule 39).
Section 7. Attachment of real and
personal property; recording thereof.
Real and personal property shall be
attached by the sherif executing the
writ in the following manner:
(a) Real property, or growing crops
thereon,
or
any
interest
therein,
standing upon the record of the registry
of deed of the province in the name of
the party against whom attachment is
issued, or not appearing at all upon such
records, or belonging to the party
against whom attachment is issued and
held by any other person, or standing on
the records of the registry of deeds in
the name of any other person, by filing
with the registry of deeds a copy of the
order, together with a description of the
property attached, and a notice that it is
attached, or that such real property and
any interest therein held by or standing
in the name of such other person are
attached, and by leaving a copy of such
order, description, and notice with the
occupant of the property, if any, or with
such other person or his agent if found
within the province. Where the property
has been brought under the operation of
either the Land Registration Act or the

Property Registration Decree, the notice
shall contain a reference to the number
of the certificate of title, the volume and
page in the registration book where the
certificate
is
registered,
and
the
registered owner or owners thereof.
The registrar of deed must index
attachments filed under this section in
the names of the applicant, the adverse
party, or the person by whom the
property is held or in whose name it
stands in the records. If the attachment
is not claimed on the entire area of the
land covered by the certificate of title, a
description sufficiently accurate for the
identification of the land or interest to
be afected shall be included in the
registration of such attachment;
(b) Personal property capable of
manual delivery, by taking and safely
keeping it in his custody, after issuing
the corresponding receipt therefore;
(c) Stocks or shares, or an interest in
stocks or shares, of any corporation or
company, by leaving with the president
or managing agent thereof, a copy of the
writ, and a notice stating that the stock
or interest of the party against whom
the attachment is issued is attached in
pursuance of such writ;
(d) Debts and credits, including bank
deposits, financial interest, royalties,
commissions,
and
other
personal
property not capable of manual delivery,
by leaving with the person owing such
debts, or having in his possession or
under his control, such credits or other
personal property, or with his agent, a
copy of the writ, and notice that the
debts owing by him to the party against
whom attachment is issued, and the
credits and other personal property in
his possession, or under his control,
belonging to said party, are attached in
pursuance of such writ;
(e) The interest of the party whom
attachment
is
issued
in
property
belonging to the estate of the decedent,
whether as heir, legatee, or devisee, by
serving the executor or administrator or
other personal representative of the
decedent with a copy of the writ and
notice that said interest is attached. A
copy of said writ of attachment and of
said notice shall also be filed in the
office of the clerk of the court in which
said estate is being settled and served
upon the heir, legatee or devisee
concerned.
If the property sought to be attached
is in custodia legis, a copy of the writ of
attachment shall be filed with the proper
court or quasi-judicial agency, and notice
of the attachment served upon the
custodian of such property.
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What may be the subject of attachment:

1. Real property or any interest therein;
2. Personal property capable of manual delivery;
3. Stocks or shares or interest therein;
4. Debts and credits, including bank deposits,
financial interest, royalties, commissions and
other personal property not capable of
manual delivery; or
5. Interest
of
the
party
against
whom
attachment is issued in property belonging to
the estate of the decedent, whether as heir,
legatee, or devisee.
Par. (3) and (4) refer to garnishment. By such
notice of garnishment, the court acquires
jurisdiction over the garnishee and the latter
becomes a forced intervenor in the case.
Debt means some definite amount of money,
ascertained or capable of being ascertained,
which may be paid over to the sheriff or to the
court, while credits and personal property are
something belonging to the defendant, but in
possession and under the control of the garnishee
(Feria, Civil Procedure Annotated).
Property legally attached is property in

custodial egis and cannot be interfered
with without the permission of the proper
court, but this is confined to cases where
the property belongs to the defendant or
one in which the defendant has
proprietary interest.
Principle of Seniority of Liens

Where the property attached by the judgment
creditor had previously been mortgaged, the
judgment creditors lien is inferior to that of the
mortgagee which must first be satisfied in the
event of foreclosure. In reality, what was attached
by
the judgment creditor was merely the
judgment debtors right or equity of redemption
(Top Rate International Services, Inc. vs. IAC, G.R.
No. 67496, July 7, 1986).
CASES:
SIARI VALLEY ESTATES vs. LUCASAN, 109 PHIL.
294 The requirement that the notice of levy
should contain a reference to the number of
the certificate of title and the volume and
page in the registration book where the
certificate is registered is made in order
that the debtor as well as a third person
may be properly informed of the particular
land or property that is under the custody
of the court. This can only be accomplished by
making a reference to the certificate of title
covering the property. The situation differs if the
land is unregistered in which case it is enough
that the notice be registered under Act 3344.
Since the notice of levy made by the sheriff as
regards parcel number 1 which is a registered
land contains no reference to the number of its
certificate of title and the volume and page in the
registry book where the title is registered, it
follows that said notice is legally ineffective and
as such did not have the effect of binding the

property for purposes of execution. Consequently,
the sale carried out by virtue of said levy is also
invalid and of no legal effect.
RAVANERA vs. IMPERIAL, 93 SCRA 589 A
judgment debtor is entitled o notice of levy if he
is the occupant of the land. What is required is
that the judgment debtor must be notified of the
auction sale before the actual date of sale.
OBAA vs. COURT OF APPEALS 172 SCRA 866 In
an action strictly in personam personal
service of summons within the forum is
essential to the acquisition of jurisdiction
over the person of the defendant who does
not voluntarily submit himself to the authority of
the court. In other words, summons by
publication cannot consistently with the due
process clause in the Bill of Rights confer upon
the court jurisdiction over said defendants.
It should be noted that Section 7 of Rule 57
requires that in attaching real property a copy of
the order, description, and notice must be served
on the occupant. The attachment was void from
the beginning. The action in personam which
required personal service was never converted
into an action in rem where service by publication
would have been valid.
The propriety of service of summons by
publication is not dependent upon the
technical characterization of the action as
one in rem or quasi in rem but upon
compliance with the requirements for the
situations found in Sections 16, 17, and 18
of Rule 14 of the Rules of Court. We declared
the service of summons by publication as "legally
and constitutionally vitiated." In the present case,
however, the action was one in personam. The
service was equally void and of no effect.
DU vs. STRONGHOLD INSURANCE, 433 SCRA 43
Preference is given to a duly registered
attachment over a subsequent notice of lis
pendens, even if the beneficiary of the notice
acquired the subject property before the
registration of the attachment. Under the torrens
system, the auction sale of an attached realty
retroacts to the date the levy was registered.
WALKER vs. McMICKING, 14 PHIL. 688 To
constitute a valid levy the officer must take
actual possession and actual custody of the
property attached as far as practicable under the
circumstances. Such property must be in his
substantial presence and possession
adverse to and exclusive of the attachment
debtor.
VILLANUEVA-FABELLA vs. JUDGE RALPH LEE, 419
SCRA 440
To constitute a valid levy of attachment, the
officer levying it must have "actual possession
of the property attached." He must put
himself in [a] position to, and must assert
and, in fact, enforce a dominion over the
property adverse to and exclusive of the
attachment debtor. To this rule we add that the
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officer cannot even deliver the property to

the attachment creditor, as the parties must
await the judgment in the action. The levied
property must be in the substantial
presence and possession of the levying
officer, who "cannot act as special deputy
sherif of any party litigant." The officer may
put someone "in possession of the property for
the purpose of guarding it," but the former
cannot be "relieve[d] x x x from liability to the
parties interested in said attachment."
The duty of sheriffs to execute a writ
issued by a court is purely ministerial, not
discretionary. Clearly, they must keep the
levied property safely in their custody, not in that
of any of the parties. They exercise no discretion
in this regard, for attachment is harsh,
extraordinary and summary in nature -- a
"rigorous remedy which exposes the debtor to
humiliation and annoyance."
SEBASTIAN vs. VALINO, 224 SCRA 256 Under
the Revised Rules of Court, the property seized
under a writ of replevin is not to be
delivered immediately to the plaintif. The
sherif must retain it in his custody for five
days and shall return it to the defendant if
the latter requires its return and files a
counterbond (Sec. 4, Rule 60, Revised Rules of
Court). In violation of said Rule, respondent
immediately turned over the seized articles to
PDCP. His claim that the Office of the Regional
Sheriff did not have a place to store the seized
items, cannot justify his violation of the Rule. As
aptly noted by the Investigating Judge, the
articles could have been deposited in a
bonded warehouse.
VILLAREAL vs. RARAMA, 247 SCRA 493 When a
writ is placed in the hands of a sherif it is
his duty, in the absence of any instructions
to the contrary, to proceed with reasonable
celerity and promptness to execute it
according to its mandate. He is to execute
the directives of the court therein strictly in
accordance with the letter thereof and
without any deviation therefrom.
Hence, a sheriff has no authority to levy on
execution upon the property of any person other
than that of the judgment debtor. If he does so,
the writ of execution affords him no justification,
for such act is not in obedience to the mandate of
the writ. As long as the sheriff confines his acts to
the authority of the process, he is not liable, but
all of his acts which are not justified by the writ
are without authority of law. This is so because if
an execution against one man would excuse the
sheriff for taking the property of another, every
citizen would be at his mercy and none could call
his estate his own.
BALANTES vs. OCAMPO III, 242 SCRA 327 The
rule is that when a writ is placed in the hands of a
sheriff, it is his duty, in the absence of
instructions, to proceed with reasonable celerity
and promptness to execute it according to its
mandate. He may not apply his discretion as to
whether to execute it or not.
ELIPE vs. FABRE, 241 SCRA 249 Indeed, as

clearly stated in the Manual for Clerks of Court, a
sheriff, to whom a valid writ or process is
delivered to be levied upon a property
within his jurisdiction, is liable to the
person in whose favor the process or writ
runs if he fails to make a levy upon
property owned by the judgment debtor
within his jurisdiction and by reason thereof
the judgment creditor is injured. It is
omission not dependent upon intentional wrong
or negligent omission to seize property of
judgment debtor.
NBI vs. TULIAO, MARCH 24, 1997
Clearly, respondent's act of leaving the passenger
jeep in the possession and control of the creditor
did not satisfy the foregoing requirements of the
Rules; neither did it conform to the plainly worded
RTC order. The note in the receipt that imposed
on Ignacio the obligation to produce the same
whenever required by the court was no
compliance either, because it did not establish
that the property was in respondent sheriff's
substantial presence and possession. Respondent
fell short of his obligation to take and safely keep
the attached property "in his capacity." He cannot
feign ignorance of this duty as he himself
correctly cited an early decision of this Court
explaining a sheriff's duty in attachment, as
follows:
. . . A verbal declaration of seizure or
service of a writ of attachment is not
sufficient. There must be an actual taking
of possession and placing of the attached
property under the control of the officer
or someone representing him. (Hollister vs.
Goodale, 8 Conn., 332, 21 Am. Dec., 674; Jones
vs. Howard, 99 Ga., 451, 59 Am. St. Rep., 231.)
ROQUE vs. COURT OF APPEALS, 93 SCRA 540

Constructive possession should be held sufficient
where
actual
possession
is
not
feasible, particularly when it was followed up by
the actual seizure of the property as soon as that
could possibly be effected. In case of a vessel,
levy is constructively made by the registration of
the same with the Philippine Coast Guard.
SUMMIT TRADING vs. AVENDANO, 135 SCRA 397
It is true that Saquilayan is not among the
persons mentioned in Section 13. However, she,
being under the control of Summit Trading, has
not explained what she has done with the
summons and complaint. The logical assumption
is that she delivered it to her boss, the president
of Summit Trading. As already stated, she
received a copy of the decision and Summit
Trading became aware of it.
Under the facts of this case, Saquilayan, being
the secretary of the president (whose contact
with the outside world is normally through his
secretary), may be regarded as an "agent" within
the meaning of section 13. Hence summons was
validly served upon Summit Trading.
CHEMPHIL EXPORT & IMPORT vs. CA, 251 SCRA
286 A secretary's major function is to assist his
TAU MU Page 10 of 42
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or her superior. He/she is in effect an extension of

the latter. Obviously, as such, one of her duties is
to receive letters and notices for and in behalf of
her superior, as in the case at bench. The notice
of garnishment was addressed to and was
actually received by Chemphil's president
through his secretary who formally received it for
him. Thus, in one case, we ruled that the
secretary of the president may be considered an
"agent" of the corporation and held that service
of summons on him is binding on the corporation.
Note: Summit and Chemphil rulings have been
amended by the 1997 Rules of Civil Procedure.
Section 11 of Rule 14 provides:
Sec. 11. Service upon domestic private
juridical entity. When the defendant is a
corporation,
partnership
or
association
organized under the laws of the Philippines
with a juridical personality, service may be
made on the president, managing partner,
general
manager,
corporate
secretary,
treasurer, or in-house counsel.
TAYABAS LAND CO. vs. SHARRUF, 41 PHIL. 382

A judgment for a sum of money is, as to the party
entitled to payment, a credit; and as to the party
who ought to pay the money, a debt.
Furthermore, the interest of the creditor in such a
judgment is clearly property, though not capable
of manual delivery. Debts, credits, and other
property not capable of manual delivery are to be
dealt with in a different manner from that
prescribed in case of the execution of tangible
property; for while tangible property is proceeded
with by seizure and sale under execution, debts
and credits are to be attached by the citation of
the debtor.
The proceeding thus indicated as proper, in order
to subject a debt or credit is known in American
civil procedure as the process of garnishment;
and it may be truly said that garnishment is one
of the simplest processes, and the least involved
in technicalities, of any proceeding known to the
law. It consists in the citation of some stranger to
the litigation, who is debtor to one of the parties
to the action. By this means such debtor stranger
becomes a forced intervenor; and the court,
having acquired jurisdiction over his person by
means of the citation, requires him to pay his
debt, not to his former creditor, but to the new
creditor, who is creditor in the main litigation. It is
merely a case of involuntary novation by the
substitution of one creditor for another. Upon
principle the remedy is a species of
attachment or execution for reaching any
property pertaining to a judgment debtor
which may be found owing to such debtor
by a third person.
Section 8. Effect of attachment of debts,
credits and all other similar personal
property. All persons having in their
possession or under their control any
credits
or
other
similar
personal
property belonging to the party against
whom attachment is issued, or owing
any debts to him, at the time of service
upon them of the copy of the writ of

attachment and notice as provided in the
last preceding section, shall be liable to
the applicant for the amount of such
credits, debts or other similar personal
property,
until
the
attachment
is
discharged, or any judgment recovered
by him is satisfied, unless such property
is delivered or transferred, or such debts
are paid, to the clerk, sherif, or other
proper officer of the court issuing the
attachment.
It is not necessary to serve summons upon the
garnishee in order that the trial court may acquire
jurisdiction. All that is necessary is the service
upon him of the writ of garnishment (Perla
Compania de Seguros vs. Ramolete, G.R. No.
60884, November 13, 1991)
Notes:
Garnishment a specie of attachment by means
of which the plaintiff seeks to subject to his claim
property of the defendant in the hands of a
stranger to the litigation or money owed by such
stranger to the defendant (Engineering and
Construction vs. NPC, 168 SCRA 9).
Obligation of the Garnishee by means of the
citation, the stranger becomes a forced
intervenor required to pay his debt not to his
former creditor, but to the new creditor, who is
the creditor in the main litigation. The garnishee
has no choice but to obey the garnishment (RCBC
vs. Judge Castro, 168 SCRA 49).
CASES:
ENGINEERING CONSTRUCTION vs. NPC, 168 SCRA
9 A garnishee, after having been judicially
compelled to pay the amount of the judgment
represented by funds in its possession belonging
to the judgment debtor, should be released from
all responsibilities over such amount after
delivery thereof to the sheriff. The property
attached is brought in custodia legis.
MANILA REMNANT CO. vs. COURT OF APPEALS,
231 SCRA 281 Garnishment is a species of
attachment for reaching credits belonging
to the judgment debtor and owing to him
from a stranger to the litigation. It is an
attachment by means of which the plaintiff seeks
to subject to his claim property of the defendant
in the hands of a third person or money owed by
such third person or garnishee to the defendant.
The rules on attachment also apply to
garnishment proceedings.
A garnishment order shall be lifted if it
established that:
a. The party whose accounts have been
garnished has posted a counterbond or
has made the requisite cash deposit;
b. The order was improperly or irregularly
issued as where there is no ground for
garnishment or the affidavit and/or bond
filed therefor are defective or insufficient;

Sources:
c. The property attached is exempt from

execution, hence exempt from preliminary
attachment or
d. The judgment is rendered against the
attaching or garnishing creditor.
Partial execution of the judgment is not
included in the above enumeration of the
legal grounds for the discharge of a
garnishment
order.
Neither
does
the
petitioner's willingness to reimburse render the
garnishment order unnecessary. As for the
counterbond, the lower court did not err when it
fixed the same at P500,000.00. As correctly
pointed out by the respondent court, that amount
corresponds to the current fair market value of
the property in litigation and was a reasonable
basis for determining the amount of the
counterbond.
NATIONAL BANK vs. OLUTANGA, 54 PHIL. 346
When a person has funds in his possession
belonging to a debtor, and said funds are
attached by a creditor of the latter, said person is
relieved from all responsibility to said creditor if
he is judicially compelled to deliver said funds to
the aforesaid debtor.
PERLA COMPANIA DE SEGUROS vs. RAMOLETE,
203 SCRA 487 Through service of the writ of
garnishment, the garnishee becomes a virtual
party to, or a forced intervenor in, the case and
the trial court thereby acquires jurisdiction to
bind him to compliance with all orders and
processes of the trial court with a view to the
complete satisfaction of the judgment.
TEC BI & CO. vs. CHARTERED BANK OF INDIA, 41
PHIL. 596
The remedy of a judgment creditor against the
garnishee is to either enforce his claim in the
same case or in a separate action.
CONSOLIDATED BANK & TRUST CORP. vs. IAC,
150 SCRA 591 The rule is well settled that when
a writ of attachment has been levied on real
property or any interest therein belonging to the
judgment debtor, the levy thus effected creates a
lien which nothing can destroy but its dissolution.
VALDEVIESO vs. DAMALERIO, 451 SCRA 664 The
settled rule is that levy on attachment, duly
registered, takes preference over a prior
unregistered sale. This result is a necessary
consequence of the fact that the property
involved was duly covered by the Torrens system
which works under the fundamental principle that
registration is the operative act which gives
validity to the transfer or creates a lien upon the
land.
BF HOMES, INC. vs. COURT OF APPEALS, 190
SCRA 262 It has been held that the lien
obtained by attachment stands upon as high
equitable grounds as a mortgage lien:
"The lien or security obtained by an attachment
even before judgment, is a fixed and positive
security, a specific lien, and, although whether it
will ever be made available to the creditor
depends on contingencies, its existence is in no

way contingent, conditioned or inchoate. It is a
vested interest, an actual and substantial
security,
affording
specific
security
for
satisfaction of the debt put in suit, which
constitutes a cloud on the legal title, and is as
specific as if created by virtue of a voluntary act
of the debtor and stands upon as high equitable
grounds as a mortgage."
An attachment lien continues until the debt is
paid, or sale is had under execution issued on the
judgment or until judgment is satisfied, or the
attachment discharged or vacated in the same
manner provided by law.
CHEMPHIL EXPORT & IMPORT vs. CA, 251 SCRA
286
The rule established in the aforequoted cases still
applies, even more so since the terms of the
agreement have to be complied with in full by the
parties thereto. The parties to the compromise
agreement should not be deprived of the
protection provided by an attachment lien
especially in an instance where one reneges on
his obligations under the agreement. Moreover, a
violation of the terms and conditions of a
compromise agreement entitles the aggrieved
party to a writ of execution.
ABENOJAR vs. COURT OF APPEALS, APRIL 18,
1995 The non-fulfillment of the terms and
conditions of a compromise agreement approved
by the Court justifies execution thereof and the
issuance of the writ for said purpose is the Court's
ministerial duty enforceable by mandamus.
A judicial compromise may be enforced by a
writ of execution. If a party fails or refuses to
abide by the compromise, the other party may
enforce the compromise or regard it as rescinded
and insist upon his original demand.
If we were to rule otherwise, we would in effect
create a back door by which a debtor can easily
escape his creditors. Consequently, we would be
faced with an anomalous situation where a
debtor, in order to buy time to dispose of his
properties, would enter into a compromise
agreement he has no intention of honoring in the
first place. The purpose of the provisional remedy
of attachment would thus be lost. It would
become, in analogy, a declared and toothless
tiger (Canonizado vs. Benitez, 127 SCRA 610).
REPUBLIC OF THE PHILIPPINES vs. SALUDARES,
327 SCRA 449 Special adjective tools or devices
were provided by the Revolutionary Government
for the recovery of that "ill-gotten wealth." These
took the form of provisional remedies akin to
preliminary attachment (Rule 57), writ of seizure
of personalty (Rule 60) and receivership (Rule
59). They were (a) sequestration and (b) freeze
orders, as regards "unearthed instance of 'illgotten wealth'; and (c) provisional takeover, as
regards 'business enterprises and properties
taken over by the government of the Marcos
Administration or by entities or persons close to
former President Marcos."
Sources:
Executive Orders Re Sequestration, Freezing and

Takeover
These special remedies were prescribed and
defined in Executive Orders Numbered 1 and 2,
promulgated by President Corazon C. Aquino in
March, 1986. Their validity and propriety were
sustained by this Court on May 27, 1987, against
claims that they were unconstitutional as being
bills of attainder, or as violative of the right
against self-incrimination and the guaranty
against unreasonable searches and seizures. In
the same case, the Court also set the parameters
for and restrictions on the proper exercise of the
remedies."
In BASECO vs. PCGG, 150 SCRA 181, 182 (1987),
sequestration is defined as the process, which
may be employed as a conservatory writ
whenever the right of the property is involved, to
preserve, pending litigation, specific property
subject to conflicting claims of ownership or liens
and privileges.
The Court also noted the relationship between
attachment and receivership, on one hand, and
sequestration, freeze order and provisional
takeover on the other. The latter there are
ancillary remedies in prosecuting the ill-gotten
wealth of the previous Marcos regime. The Court
observed that sequestration, freezing and
provisional takeover are akin to the provisional
remedy
of
preliminary
attachment
or
receivership.
By an order of attachment, a sheriff seizes
property of a defendant in a civil suit so that it
may stand as security for the satisfaction of any
judgment that may be obtained, and not disposed
of, or dissipated, or lost intentionally, or
otherwise, pending the action. When a writ of
attachment has been levied on real property or
any interest therein belonging to the judgment
debtor, the levy creates a lien which nothing can
destroy but its dissolution. This well-settled rule is
likewise applicable to a writ of sequestration.
Where the disputed properties were already
under custodia legis by virtue of a valid writ of
sequestration issued by the PCGG when
respondent Judge Saludares issued the assailed
writ of attachment in favor of private respondent
Hung Ming Kuk, said writ of the PCGG could not
be interfered with by the RTC because the PCGG
is a coordinate and co-equal body. The PCGG had
acquired by operation of law the right of
redemption over the property until after the final
determination of the case or until its dissolution.
Section 9. Effect of attachment of
interest in property belonging to the
estate of a decedent. The attachment
of the interest of an heir, legatee, or
devisee in the property belonging to the
estate of a decedent shall not impair
the
power
of
the
executor,
administrator,
or
other
personal
representative of the decedent over
such property for the purpose of
administration.
Such
personal
representative, however, shall report
the attachment to the court when any
petition for distribution is filed, and in
the order made upon such petition,

distribution may be awarded to such
heir, legatee, or devisee, but the
property attached shall be ordered
delivered to the sherif making the levy,
subject to the claim of such heir,
legatee, or devisee, or any person
claiming under him.
Section 10. Examination of party whose
property is attached and persons
indebted to him or controlling his
property;
delivery
of
property
to
sheriff. Any person owing debts to the
party whose property is attached or
having in his possession or under his
control any credit or other personal
property belonging to such party, may
be required to attend before the court in
which the action is pending, or before a
commissioner appointed by the court,
and be examine on oath respecting the
same. The party whose property is
attached may also be required to attend
for the purpose of giving information
respecting his property, and may be
examined on oath. The court may, after
such
examination,
order
personal
property capable of manual delivery
belonging to him, in the possession of
the person so required to attend before
the court, to be delivered to the clerk of
the court or sherif on such terms as may
be just, having reference to any lien
thereon or claim against the same, to
await the judgment in the action.
Sources:
In case the property attached is perishable in

nature, or that the interests of all the parties will
be subserved.
Perishable ordinarily means subject to a
speedy and natural decay (e.g. fruits,
vegetables, dairy products, meat). But if the
time contemplated is necessarily long, the term
may include material depreciation in value.
If the garnishee does not admit the indebtedness

or he claims the property, the controversy must
be determined in an independent action (Bucra
Corp. vs. Macadaeg, 84 Phil. 493).
Section 12. Discharge of attachment

upon giving counterbond. After a writ
of attachment has been enforced, the
party
whose
property
has
been
attached, or the person appearing on his
behalf, may move for the discharge of
the attachment wholly or in part on the
security given. The court shall, after due
notice and hearing, order the discharge
of the attachment if the movant makes a
cash deposit, or files a counter-bond
executed to the attaching party with the
clerk of the court where the application
is made, in an amount equal to that fixed
by the court in the order of attachment,
exclusive of costs. But if the attachment
is sought to be discharged with respect
to a particular property, the counterbond shall be equal to the value of that
property as determined by the court. In
either case, the cash deposit or the
counter-bond shall secure the payment
of any judgment that the attaching party
may recover in the action. A notice of
the deposit shall forth with be served on
the attaching party. Upon the discharge
of an attachment in accordance with the
provisions of this section, the property
attached, or the proceeds of any sale
thereof, shall be delivered to the party
making the deposit or giving the
counter-bond,
or
to
the
person
appearing on his behalf, the deposit or
counter-bond aforesaid standing in place
of the property so released. Should such
counter-bond for any reason to be found
to be or become insufficient, and the
party furnishing the same fail to file an
additional counter-bond, the attaching
party may apply for a new order of
attachment.
Section 11. When attached property may

be sold after levy on attachment and
before entry of judgment. Whenever it
shall be made to appear to the court in
which the action is pending, upon
hearing with notice to both parties, that
the party attached is perishable, or that
the interests of all the parties to the
action will be will be subserved by the
sale thereof, the court may order such
property to be sold at public auction in
such manner as it may direct, and the
proceeds of such sale to be deposited in
court to abide the judgment in the
action.
THE MANILA REMNANT CO. vs. CA, 231 SCRA 281

A garnishment order shall be lifted if it
established that:
a. The party whose accounts have been
garnished has posted a counterbond or
has made the requisite cash deposit
(Section 12);
b. The order was improperly or irregularly
issued (Section 13) as where there is no
ground for garnishment (Section 1) or the
affidavit and/or bond filed therefor are
defective or insufficient (Section 3);
c. The property attached is exempt from
execution, hence exempt from preliminary
attachment (Section 2 and 5); or
Note: The examination in Rule 39 is proper only

when the writ of execution is returned unsatisfied.
Examination under this section is not subject to a
preliminary condition but is anticipatory in nature
and may be resorted to even if the writ of
attachment was not returned because no
property could be found to be levied upon
thereunder.

d. The judgment is rendered against the

attaching or garnishing creditor (Section
19).
INSULAR SAVINGS BANK vs. CA, JUNE 15, 2005
As may be noted, the amount of the counterattachment bond is, under the terms of the
aforequoted Section 12, to be measured against
the value of the attached property, as determined
by the judge to secure the payment of any
judgment that the attaching creditor may recover
in the action. Albeit not explicitly stated in the
same section and without necessarily diminishing
the sound discretion of the issuing judge on
matters of bond approval, there can be no serious
objection, in turn, to the proposition that the
attached property - and logically the counterbond necessary to discharge the lien on such
property - should as much as possible correspond
in value to, or approximately match the attaching
creditors principal
claim. Else, excessive
attachment, which ought to be avoided at all
times, shall ensue.
The sheriff is required to attach only so much of
the property of the party against whom the order
is issued as may be sufficient to satisfy
the applicants demand, the amount of which is
stated in the order, unless a deposit is made
or a counter-bond is given equal to said
amount. However, if the value of the property to
be attached is less than the amount of the
demand, the amount of the applicants bond may
be equal to the value of said property, and the
amount of the adverse partys deposit or
counter-bond
may
be
equal
to
the
applicants bond. The writ of preliminary
attachment is issued upon approval of the
requisite bond.
Unlike the former Section 12 of Rule 57 of the
Rules of Court where the value of the property
attached shall be the defining measure in the
computation
of
the
discharging
counterattachment bond, the present less stringent
Section 12 of Rule 57 provides that the
court
shall
order
the
discharge
of
attachment if the movant makes a cash
deposit, or files a counter-bond . . . in an
amount equal to that fixed by the court in
the order of attachment, exclusive of
costs. Not being in the nature of a penal
statute, the Rules of Court cannot be given
retroactive efect.
K.O. GLASS CONSTRUCTION vs. VALENZUELA, 116
SCRA 563
Finally, it appears that the petitioner has filed a
counterbond to answer for any judgment that
may be rendered against the defendant. Upon
receipt of the counter-bond the respondent Judge
should have discharged the attachment pursuant
to Section 12, Rule 57 of the Revised Rules of
Court. The filing of the counter-bond will
serve the purpose of preserving the
defendant's property and at the same time
give the plaintiff security for any judgment
that
may
be
obtained
against
the
defendant.
Sources:
SECURITY PACIFIC ASSURANCE vs. TRIA-INFANTE,

468 SCRA 526 Under the Rules, there are two
(2) ways to secure the discharge of an
attachment. First, the party whose property has
been attached or a person appearing on his
behalf may post a security. Second, said party
may show that the order of attachment was
improperly or irregularly issued.
BELISLE INVESTMENT AND FINANCE CO., INC. V.
STATE INVESTMENT HOUSE, INC., 151 SCRA 630
The Court of Appeals correctly ruled that the
mere posting of a counterbond does not
automatically discharge the writ of attachment. It
is only after hearing and after the judge has
ordered the discharge of the attachment if a cash
deposit is made or a counterbond is executed to
the attaching creditor is filed, that the writ of
attachment is properly discharged under Section
12, Rule 57 of the Rules of Court .
On this score, we hew to the pertinent
ratiocination of the Court of Appeals as regards
the heretofore cited provision of Section 12, Rule
57 of the 1997 Rules of Civil Procedure, on the
discharge of attachment upon giving counterbond:
. . . The filing of the counterattachment bond by petitioner Villaluz has
discharged the attachment on the properties
and made the petitioner corporation liable on
the counter-attachment bond. This can be
gleaned from the DEFENDANTS BOND FOR
THE DISSOLUTION OF ATTACHMENT, which
states
that
Security
Pacific
Assurance
Corporation, as surety, in consideration of the
dissolution of the said attachment jointly and
severally, binds itself with petitioner Villaluz
for any judgment that may be recovered by
private respondent Anzures against petitioner
Villaluz.
The contract of surety is only between
petitioner Villaluz and petitioner corporation.
The petitioner corporation cannot escape
liability by stating that a court approval is
needed before it can be made liable. This
defense can only be availed by petitioner
corporation against petitioner Villaluz but not
against third persons who are not parties to the
contract of surety. The petitioners hold
themselves out as jointly and severally liable
without any conditions in the counterattachment
bond. The
petitioner
corporation cannot impose requisites
before it can be made liable when the law
clearly does not require such requisites to
be fulfilled.
CALDERON vs. IAC, 155 SCRA 531 While

Section 12, Rule 57 of the Rules of Court
provides that upon the filing of a counterbond,
the attachment is discharged or dissolved,
nowhere
is
it
provided
that
the
attachment bond is rendered void and
inefective upon the filing of counterbond.
The responsibility of the surety arises if the
court shall finally adjudge that the plaintiff was
not entitled thereto. The liability attaches if
the plaintif is not entitled to the
attachment because the requirements entitling
him to the writ are wanting, or if the plaintiff has
no right to the attachment because the facts
stated in his affidavit, or some of them, are

untrue. It is, therefore, evident that upon the
dismissal of an attachment wrongfully issued, the
surety is liable for damages as a direct result of
said attachment.
Whether the attachment was discharged by
either of the two (2) ways indicated in the law,
i.e., by filing a counterbond or by showing that
the order of attachment was improperly or
irregularly issued, the liability of the surety on the
attachment bond subsists because the final
reckoning is when "the Court shall finally adjudge
that the attaching creditor was not entitled" to
the issuance of the attachment writ in the first
place.
The attachment debtor cannot be deemed
to have waived any defect in the issuance
of the attachment writ by simply availing
himself of one way of discharging the
attachment writ, instead of the other.
Moreover, the filing of a counterbond is a
speedier way of discharging the attachment writ
maliciously sought out by the attaching creditor
instead of the other way, which, in most
instances like in the present case, would require
presentation of evidence in a full-blown trial on
the merits and cannot easily be settled in a
pending incident of the case.
Section 13. Discharge of attachment on
other
grounds. The
party
whose
property has been ordered attached may
file a motion with the court in which the
action is pending, before or after levy or
even after the release of the attached
property, for an order to set aside or
discharged the attachment on the
ground that the same was improperly or
irregularly issued or enforced, or that
the
bond
is
insufficient.
If
the
attachment is excessive, the discharge
shall be limited to the excess. If the
motion be made on affidavits on the part
of the movant but not otherwise, the
attaching party may oppose the motion
by counter-affidavits or other evidence
in addition to that on which the
attachment was made. After due notice
and hearing, the court shall order the
setting aside or the corresponding
discharge of the attachment if it appears
that it was improperly or irregularly
issued or enforced, or that the bond is
insufficient, or that the attachment is
excessive, and the defect is not cured
forthwith.
Grounds for discharge of Preliminary
Attachment: [CI-JEE]
1. Debtor has posted a Counterbond or has
made the requisite cash deposit (Sec. 12);
2. Attachment was improperty or Irregularly
issued (Sec. 13) as where there is no ground
for attachment, or affidavit and/or bond filed
therefore are defective or insufficient (Sec. 3);
3. Judgment is rendered against the attaching
creditor (Sec. 19);
Sources:
4. Attachment is Excessive, but the discharge

shall be limited to the excess (Sec. 13); and
5. Property attached is Exempt from execution.
An ex parte discharge or suspension of the
attachment is a disservice to the orderly
administration of justice and nullifies the
underlying role and purpose of preliminary
attachment in preserving the rights of the parties
pendente lite as an ancillary remedy.
CASES:
JOPILLO, JR. vs. COURT OF APPEALS, 167 SCRA
247 A motion to discharge a writ of attachment
on the ground that the same was improperly or
irregularly issued may be established by the
affidavits submitted by the party whose
property has been attached or such other
evidence presented at the hearing of the
motion. The attaching creditor may oppose the
same by counter-affidavits or other evidence in
addition to that with which the attachment was
made.
If the movant establishes that the facts
stated in the plaintiffs affidavit or some of
them, are shown to be false or untrue, the
writ of attachment may be considered as
improperly
or
irregularly
issued.
The
determination of the existence of said grounds to
discharge a writ of attachment rests in the sound
discretion of the lower court.
Even assuming that the trial court committed an
error in denying the motion to discharge the writ
of attachment the error (if it is an error at all) is
an error in judgment which cannot be corrected
through the extraordinary remedy of certiorari
but by an ordinary appeal at the proper time.
MINDANAO SAVINGS LOAN vs. CA, 172 SCRA 480
Objections against the writ may no longer

be invoked once a counterbond is filed for
its lifting or dissolution.
The grounds invoked for the issuance of the writ
form the core of the complaint and it is right
away obvious that a trial on the merits was
necessary. The merits of a main action are not
triable in a motion to discharge an attachment
otherwise an applicant for dissolution could force
a trial on the merits on his motion.
Indeed, after the defendant has obtained the
discharge of the writ of attachment by filing a
counterbond under Section 12, Rule 57 of the
Rules of Court, he may not file another motion
under Section 13, Rule 57 to quash the writ for
impropriety or irregularity in issuing it.
The reason is simple. The writ had already
been quashed by filing a counterbond,
hence, another motion to quash it would be
pointless. Moreover, when the ground for the
issuance of the writ is also the core of the
complaint, the question of whether the plaintiff
was entitled to the writ can only be
determined after, not before, a full-blown trial on
the merits of the case. The merits of a main
action are not triable in a motion to discharge an
attachment, otherwise an applicant for the
dissolution could force a trial on the merits of the

case on this motion.
UY KIMPANG vs. JAVIER, 65 PHIL. 170 May the
defendant, after procuring the dissolution of the
attachment by filing a counterbond, ask for the
cancellation of the counterbond on the ground
that the order of attachment was improperly
issued? The obligors in the bond are absolutely
liable for the amount of any judgment that the
plaintiff may recover in the action without
reference to the question of whether the
attachment was rightfully or wrongfully issued.
BENITEZ vs. IAC, 154 SCRA 41 An action against
a party who has been guilty of fraud in
contracting the debt or incurring the obligation
upon which the action is brought, the defendant
is not allowed to file a motion to dissolve the
attachment under Section 13 by offering to show
the falsity of the factual averments in the
plaintiffs application and affidavits on which the
writ was based and consequently that the writ
based thereon had been improperly or irregularly
issued an attachment may not be dissolved by
a showing of its irregular or improper issuance.
The reason is that the hearing on such a motion
for dissolution of the writ would be tantamount to
a trial of the merits of the action. In other words,
the merits of the action would be ventilated at a
mere hearing of a motion, instead of at the
regular trial. Therefore, when the writ of
attachment is of this nature, the only way it can
be dissolved is by a counterbond.
DAVAO LIGHT & POWER vs. CA, 204 SCRA 343
Aside from the filing of a counterbond, a
preliminary attachment may also be lifted or
discharged on the ground that it has been
irregularly or improperly issued, in accordance
with Section 13 of Rule 57. Like the first, this
second mode of lifting an attachment may be
resorted to even before any property has been
levied on. Indeed, it may be availed of after
property has been released from a levy on
attachment, as is made clear by Section 13.
CUARTERO vs. COURT OF APPEALS, 212 SCRA 260
An attachment may not be dissolved by a
showing of its irregular or improper issuance if it
is upon a ground which is at the same time the
applicant's cause of action in the main case since
an anomalous situation would result if the issues
of the main case would be ventilated and
resolved in a mere hearing of a motion.
FILINVEST CREDIT CORP. vs. RELOVA, 117 SCRA
420 It is not enough for the complaint to
ritualistically cite, as here, that the defendants
are
guilty
of
fraud
in
contracting
an
obligation. An order of attachment cannot be
issued on a general averment, such as one
ceremoniously quoting from a pertinent rule. The
need
for
a
recitation
of
factual
circumstances that support the application
becomes more compelling here considering
that the ground relied upon is fraud in
contracting an obligation. The complaint
Sources:
utterly failed to even give a hint about what

constituted the fraud and how it was
perpetrated. Fraud cannot be presumed.
MIRANDA vs. COURT OF APPEALS, 178 SCRA 702
Failure to state a cause of action is a ground to
discharge but nit when the answer or motion
merely traverses the allegations of the complaint.
The foregoing provision grants an aggrieved party
relief from baseless and unjustifiable attachments
procured, among others, upon false allegations,
without having to file any cash deposit or
counterbond.
As the writ of attachment was improperly
granted, it was only fitting that it be discharged
by the trial court in rectification of its initial error.
Hence, there was no need at all for the private
respondent to post a counterbond. Finally, we
also agree with the respondent court that the
order lifting the attachment being merely
interlocutory, it should not have been questioned
on certiorari. This extraordinary remedy is
available only when there is a clear showing of a
grave abuse of discretion amounting to lack of
jurisdiction, and there is no such showing here.
ADLAWAN vs. TORRES, 233 SCRA 645 Bare
allegation that an encumbrance of a property is in
fraud of the creditor does not suffice. Factual
bases for such conclusion must be clearly
averred.
The execution of a mortgage in favor of another
creditor is not conceived by the Rules as one of
the means of fraudulently disposing of one's
property. By mortgaging a piece of property, a
debtor merely subjects it to a lien but ownership
thereof is not parted with.
Furthermore, the inability to pay one's creditors is
not necessarily synonymous with fraudulent
intent not to honor an obligation.
Consequently, when petitioners filed a motion for
the reconsiderations of the order directing the
issuance of the writ of attachment, respondent
Judge should have considered it as a motion for
the discharge of the attachment and should have
conducted a hearing or required submission of
counter-affidavits from the petitioners, if only to
gather facts in support of the allegation of fraud
PEROXIDE PHILS. CORP. vs. CA, 199 SCRA 882
When the attachment is challenged for having
been illegally or improperly issued, there must be
a hearing with the burden of proof to sustain the
writ being on the attaching creditor. That hearing
embraces not only the right to present evidence
but also a reasonable opportunity to know the
claims of the opposing parties and meet them.
The right to submit arguments implies that
opportunity, otherwise the right would be a
barren one. It means a fair and open hearing.
And, as provided by the aforecited Section 13 of
Rule 57, the attaching creditor should be allowed
to oppose the application for the discharge of the
attachment
by
counter-affidavit
or
other
evidence, in addition to that on which the
attachment was made.
Section 14. Proceedings where property

claimed by third person. If the property
attached is claimed by any person other
than the party against whom attachment
had been issued or his agent, and such
person makes an affidavit of his title
thereto, or right to the possession
thereof, stating the grounds of such
right or title, and serves such affidavit
upon the sherif while the latter has
possession of the attached party, and a
copy thereof upon the attaching party,
the sherif shall not be bound to keep
the property under attachment, unless
the attaching party or his agent, on
demand of the sherif, shall file a bond
approved by the court to indemnify the
third-party claimant in a sum not less
than the value of the property levied
upon. In case of disagreement as to such
value, the same shall be decided by the
court issuing the writ of attachment. No
claim for damages for the taking or
keeping of the property may be enforced
against the bond unless the action
therefor is filed within one hundred
twenty (120) days from the date of the
filing of the bond.
The sherif shall not be liable for
damages for the taking or keeping of
such property, to any such third-party
claimant, if such bond shall be filed.
Nothing herein contained such prevent
such claimant or any third person from
vindicating his claim to the property, or
prevent
the
attaching
party
from
claiming damages against a third-party
claimant who filed a frivolous or plainly
spurious claim, in the same or a
separate action.
When the writ of attachment is issued in
favor of the Republic of the Philippines,
or any officer duly representing it, the
filing of such bond shall not be required,
and in case the sherif is sued for
damages as a result of the attachment,
he shall be represented by the Solicitor
General, and if held liable therefor, the
actual damages adjudged by the court
shall be paid by the National Treasurer
out of the funds to be appropriated for
the purpose.
Remedy of the third person:
1. File a terceria or third party claim (similar to
Sec. 16, Rule 39);
2. File independent action to recover his
property; or
3. File a motion for intervention (This is available
only before a judgment is rendered, hence,
not allowed under Rule 39).
Note: A third-party claim may be filed with the
sheriff while he has possession of properties
levied upon, this being the only time fixed for the
purpose (Mangaoang vs. Provincial Sheriff of La
Union, G.R. No. L-4869, May 26, 1952).
Sources:
CASES:
UY vs. COURT OF APPEALS, 191 SCRA 275
MANILA HERALD PUBLISHING vs. RAMOS, 88 PHIL.
94
TRADERS ROYAL BANK vs. IAC
The main issue in this case is whether or not
properties levied and seized by virtue of a
writ of attachment and later by a writ of
execution, were under custodia legis and
therefore not subject to the jurisdiction of
another co-equal court where a third party
claimant claimed ownership of the same
properties.
The issue has long been laid to rest in the case of
Manila Herald Publishing Co. Inc. v. Ramos where
the Court filed that while it is true that property
in custody of the law may not be interfered with,
without the permission of the proper court, this
rule is confined to cases where the property
belongs to the defendant or one in which
the defendant has proprietary interests. But
when the Sherif, acting beyond the bounds
of his office seizes a stranger's property,
the rule does not apply and interference
with his custody is not interference with
another court's order of attachment.
Under the circumstances, this Court categorically
stated: It has been seen that a separate action by
the third party who claims to be the owner of the
property attached is appropriate. If this is so, it
must be admitted that the judge trying such
action may render judgment ordering the sheriff
or whoever has in possession of the attached
property to deliver it to the plaintiff claimant or
desist from seizing it. It follows further that the
court may make an interlocutory order, upon the
filing of such bond as may be necessary, to
release the property pending final adjudication of
the title. Jurisdiction over an action includes
jurisdiction on interlocutory matter incidental to
the cause and deemed necessary to preserve the
subject matter of the suit or protect the parties'
interests. This is self-evident.
The foregoing ruling was reiterated in the later
case of Traders Royal Bank v. IAC.
CHING vs. COURT OF APPEALS, 423 SCRA 356
The sheriff may attach only those properties of
the defendant against whom a writ of attachment
has been issued by the court. When the sherif
erroneously levies on attachment and
seizes the property of a third person in
which the said defendant holds no right or
interest, the superior authority of the court
which has authorized the execution may be
invoked by the aggrieved third person in
the same case. Upon application of the third
person, the court shall order a summary hearing
for the purpose of determining whether the
sheriff has acted rightly or wrongly in the
performance of his duties in the execution of the
writ of attachment, more specifically if he has
indeed levied on attachment and taken hold of
property not belonging to the plaintiff. If so, the
court may then order the sheriff to release the
property from the erroneous levy and to return
the same to the third person. In resolving the
motion of the third party, the court does not and
cannot pass upon the question of the title to the

property with any character of finality. It can treat
the matter only insofar as may be necessary to
decide if the sheriff has acted correctly or not. If
the claimant's proof does not persuade the court
of the validity of the title, or right of possession
thereto, the claim will be denied by the court.
The aggrieved third party may also avail
himself of the remedy of "terceria" by
executing an affidavit of his title or right of
possession over the property levied on
attachment and serving the same to the office
making the levy and the adverse party. Such
party may also file an action to nullify the
levy with damages resulting from the
unlawful levy and seizure, which should be a
totally separate and distinct action from the
former case. The abovementioned remedies
are cumulative and any one of them may be
resorted to by one third-party claimant
without availing of the other remedies.
Section 15. Satisfaction of judgment out
of property attached; return of sheriff.
If judgment be recovered by the
attaching party and execution issue
thereon, the sherif may cause the
judgment to be satisfied out of the
property attached, if it be sufficient for
that purpose in the following manner:
(a) By paying to the judgment obligee
the proceeds of all sales of perishable or
other property sold in pursuance of the
order of the court, or so much as shall be
necessary to satisfy the judgment;
(b) If any balance remains due, by
selling so much of the property, real or
personal, as may be necessary to satisfy
the balance, if enough for that purpose
remain in the sherif's hands, or in those
of the clerk of the court;
(c) By collecting from all persons
having in their possession credits
belonging to the judgment obligor, or
owing debts to the latter at the time of
the attachment of such credits or debts,
the amount of such credits and debts as
determine by the court in the action, and
stated in the judgment, and paying the
proceeds of such collection over to the
judgment obligee.
The sherif shall forthwith make a
return in writing to the court of his
proceedings under this section and
furnish the parties with copies thereof.
How judgment is satisfied
1. Payment of proceeds of sale of perishable
property;
2. Sale of property if there is a balance;
3. Collection of property of garnishee without
need of prior permission to file action, but
may be enforced in same action (Tayabas
Land vs. Sharruf, 41 Phil. 382);

Sources:
4. Return must be made within 10 days from

receipt of writ (Bilag-Rivera vs. Lora, July
6, 1995).
PNB vs. VASQUEZ, 71 PHIL. 433 Personal
property may have been levied upon under
attachment and left in the possession of the
sheriff or other officer levying the writ to secure
the payment of such judgment as may be
recovered in the action. Where execution issues,
it is the duty of such officer to apply towards its
satisfaction the property so attached which are
left in his hands; but he may have embezzled or
otherwise misappropriated it, or allowed it to be
lost by his negligence. In such case, it must, as
between the plaintiff and defendant, and persons
claiming under defendant, be treated as though it
had been levied upon under execution as well as
under attachment, and therefore as satisfying the
judgment to the extent of its value.
PAL vs. CA, 181 SCRA 557 In the absence of an
agreement, either express or implied, payment
means the discharge of a debt or obligation in
money and unless the parties so agree, a debtor
has no rights, except at his own peril, to
substitute something in lieu of cash as medium of
payment of his debt. Consequently, unless
authorized to do so by law or by consent of the
obligee, a public officer has no authority to
accept anything other than money in payment of
an obligation under a judgment being executed.
Strictly speaking, the acceptance by the sheriff of
PAL's checks does not, per se, operate as a
discharge of the judgment debt. Since a
negotiable instrument is only a substitute for
money and not money, the delivery of such an
instrument does not, by itself, operate as
payment. A check, whether a manager's check or
ordinary check, is not legal tender, and an offer of
a check in payment of a debt is not a valid tender
of payment and may be refused receipt by the
obligee or creditor. Mere delivery of checks does
not discharge the obligation under a judgment.
The obligation is not extinguished and remains
suspended until the payment by commercial
document is actually realized.
Section 16. Balance due collected upon
an execution; excess delivered to
judgment obligor. After realizing upon
all the property attached, including the
proceed of any debts or credits
collected, and applying the proceeds to
the satisfaction of the judgment, less
the expenses of proceedings upon the
judgment, any balance shall remain due,
the sherif must proceed to collect such
balance as upon ordinary execution.
Whenever the judgment shall have been
paid, the sherif, upon reasonable
demand, must return to the judgment
obligor the attached property remaining
in his hands, and any proceeds of the
sale of the property attached not applied
to the judgment.
Section 17. Recovery upon the counterbond. When the judgment has become
executory, the surety or sureties on any
counter-bond given pursuant to the
provisions of this Rule to secure the
payment of the judgment shall become
charged on such counter-bond and
bound to pay the judgment obligee upon
demand the amount due under the
judgment,
which
amount
may
be
recovered from such surety or sureties
after notice and summary hearing in the
same action.
Where the writ of execution is returned
unsatisfied, the liability of the counter-bond
automatically attaches without the need for the
plaintiff to file a supplemental pleading to claim
payment from the surety (Vanguard Assurance
Corp. vs. CA, G.R. No. L-25291, May 27, 1975)
Requisites for recovery upon counterbond
1. The creditor demands upon the surety for
satisfaction of the judgment;
2. The surety be given notice and a summary
hearing in the same action as to his
liability
for
judgment
under
the
counterbond (Imperial Assurance vs. de
los Angeles, 111 SCRA 25);
a. The bondsmen are not liable on the
bond when the obligation assumed is
premised upon the issuance of a writ
of attachment by a court which was
not actually issued (Vadil vs. de
Venecia, 9 SCRA 374).
b. The motion by the surety to quash the
writ of execution is sufficient notice
(Dizon vs. Valdez 23 SCRA 200).
c. After demand, the amount may be
recovered from the surety in the same
action. There is no need for a separate
action.
d. The rule of exclusion cannot be
invoked by a bondsman of a
counterbond against an attachment
writ where there is already a final an
executory judgment sentencing the
bondsman as solidarily liable pro
indiviso
(Pioneer
Insurance
vs.
Camilon, 116 SCRA 190).
e. The bond answers for the judgment
even if not expressly stipulated. The
law under which this bond is issued
shall be considered as part of the
bond.
LUZON STEEL vs. SIA, 28 SCRA 58 The
counterbond contemplated in the rule is evidently
an ordinary guaranty where the sureties assume
a subsidiary liability. This is not the case here,
because the surety in the present case bound
itself "jointly and severally" (in solidum) with the
defendant; and it is prescribed in Article 2059,
paragraph 2, of the Civil Code of the Philippines
that excusion (previous exhaustion of the
property of the debtor) shall not take place "if he
(the guarantor) has bound himself solidarily with
the debtor". The rule heretofore quoted cannot be
Sources:
construed as requiring that an execution against

the debtor be first returned unsatisfied even if the
bond were a solidary one; for a procedural rule
may not amend the substantive law expressed in
the Civil Code, and further would nullify the
express stipulation of the parties that the surety's
obligation should be solidary with that of the
defendant.
The counterbond answers for any judgment and
this includes judgment pending appeal (Phil.
British Assurance vs. IAC, 150 SCRA 520).
Section
18.
Disposition
of
money
deposited. Where the party against
whom attachment had been issued has
deposited money instead of giving
counter-bond, it shall be applied under
the direction of the court to the
satisfaction of any judgment rendered in
favor of the attaching party, and after
satisfying the judgment the balance
shall be rendered to the depositor or his
assignee. If the judgment is in favor of
the party against whom attachment was
issued, the whole sum deposited must
be refunded to him or his assignee.
Section 19. Disposition of attached
property where judgment is for party
against whom attachment was issued.
If judgment be rendered against the
attaching party, all the proceeds of sales
and money collected or received by the
sherif, under the order of attachment,
and all property attached remaining in
any such officer's hands, shall be
delivered to the party against whom
attachment was issued, and the order of
attachment discharged.
Section 20. Claim for damages on
account
of
improper,
irregular
or
excessive attachment. An application
for damages on account of improper,
irregular or excessive attachment must
be filed before the trial or before the
trial or before appeal is perfected or
before the judgment becomes executory,
with due notice to the attaching party
and his surety or sureties, setting forth
the facts showing his right to damages
and the amount thereof. Such damages
may be awarded only after proper
hearing and shall be included in the
judgment on the main case.
If the judgment of the appellate court
be favorable to the party against whom
the attachment was issued, he must
claim damages sustained during the
pendency of the appeal by filing an
application in the appellate court, with
notice to the party in whose favor the
attachment was issued or his surety or
sureties, before the judgment of the
appellate court becomes executory. The
appellate
court
may
allow
the
application to be heard and decided by

the trial court.
Nothing
herein
contained
shall
prevent the party against whom the
attachment was issued from recovering
in the same action the damages awarded
to him from any property of the
attaching
party
not
exempt
from
execution should the bond or deposit
given by the latter be insufficient or fail
to fully satisfy the award.
When must application for damages be
filed: Before the trial or before appeal is
perfected, or before the judgment becomes
executory.
It shall be awarded after hearing and included in
the judgment.
If the judgment of the appellate court be
favorable to the party against whom the
attachment was issued, he must claim damages
during the pendency of the appeal.
Procedure for claiming damages outlined in Sec.
20 is EXCLUSIVE. Hence, such claims for damages
cannot be the subject of an independent action.
Exception:
1. Where the principal case was dismissed for
lack of jurisdiction by the trial court without
giving an opportunity to the party whose
property was attached to apply for and prove
his claim; and
2. Where the damages by reason of the
attachment was sustained by a third person
who was not a party to the action wherein
such writ was issued.
Note: Any award of damages for the wrongful
issuance of a provisional remedy should be
recovered in the SAME CASE. The recovery of
damages cannot be had in a separate action.
Requisites to claim for damages upon the
bond
1. There must be an application before the trial
court either by motion or counterclaim with
notice to surety who must be given
opportunity to present such defenses as he
may have with the principal and to crossexamine witnesses if he so desires.
2. A judgment for defendant is tantamount to a
declaration that plaintiff has no cause of
action and, therefore not entitled to
attachment. The phrase not entitled
thereto means no cause of action, no fraud,
or has other security (Calderon vs. IAC, 155
SCRA 531).
3. Damages must be awarded before judgment
becomes final.
4. Claims for damages against the bond must
be filed in the same action which issued the
writ of attachment (Pioneer Insurance vs.
Hontanosas, 78 SCRA 447). Otherwise it is
barred (Stronghold Insurance vs. CA, Nov. 6
1989).
Sources:
Exceptions to the rule that claim must be

filed in the same case
1. Where the principal case was dismissed for
lack of jurisdiction and no claim for damages
could have been presented in the said case
(Santos vs. CA, 95 Phil. 360);
2. A separate case for damages resulting from
the attachment may be consolidated if it is
still pending. Where the issuing court rules
that the questioned attachment was proper,
res judicata bars complaint. A separate
action for damages based on malicious
prosecution may however be filed but this
right depends upon the law governing
malicious prosecutions (Aquino vs. Socorro,
35 SCRA 373).
3. Where a writ of attachment was declared
illegal, the defendant against whom it was
issued may file his claim for damages in the
Court of Appeals before the latter decides
the appeal on the merits. The CA must hear
the motion and not dismiss the appeal for
not filing appellants brief whose deferment
was requested (Hanil Development Co. vs
IAC, 144 SCRA 557).
MALAYAN INSURANCE vs. SALAS, 90 SCRA 252
Under section 20 of Rule 57, application for
damages against the surety resulting from
wrongful attachment or wrongful seizure of
personal property must be filed in the Court of
First Instance in the same action in which the Writ
of Attachment or the writ or replevin was issued,
before trial, or even after trial but before the
judgment
becomes
executory
or
before
perfection of the appeal. In other words, the court
must still have jurisdiction over the case. The
attaching creditor and his surety or sureties must
be notified of the application setting forth the
facts showing the right of the applicant to and the
amount of damages sustained by him. If the
appeal is taken, then the application must be
filed in the Appellate Court but always before the
judgment of said court becomes final and
executory.
That where such application is seasonably made
to the Appellate Court, the latter must either
proceed to hear and decide the application or
refer the application to the trial court and allow it
to hear and decide the same. Application for
damages sustained during the proceeding of the
appeal may similarly be filed with the Appellate
Court, which may hear the application or refer it
to the trial court for the said court to hear and
decide,
The hearing is summary and will be limited to
such new defense not previously set up by the
principal, as the surety may allege and offer to
prove. While the previous testimony by the
claimant on the damages may be reproduced, the
surety should be given an opportunity to crossexamine the witness or witnesses, if it so desires.
If the surety was not given notice when the claim
for damages against the principal in the replevin
(attachment) bond was heard, then as a matter of
procedural due process the surety is entitled to
be heard when the judgment for damages against
the principal is sought to be enforced against the

suretys replevin (attachment) bond.
MANINGO vs. IAC, 183 SCRA 691 As may be
gathered from Section 20, Rule 57, the claim for
damages resulting from wrongful seizure of
personalty property must be filed in the same
action in which the writ attachment or the writ of
replevin was issued; otherwise, it is bar' red. It
may be presented, before trial in the answer by
way of counterclaim/ In the discretion of the
court, it may also be made at any other time
even after the rendition of final judgment if the
court has still jurisdiction over the case. Hence, if
the application for damages is not made in
compliance with the procedure laid down in the
rules, even the surety on the bond is relieved
from liability therefor. The remedy provided by
law is exclusive and by failing to file a motion for
the determination of the damages on time and
while judment is still under the control of the
court, the claimant loses his right to damages.
In the case at bar, there is no showing that
respondent had timely filed his claim for damages
arising from the wrongful issuance of the writ of
replevin, or prior to dismissal on December 15,
1982, of the replevin case, upon respondents
petition for certiorari. It was only years later on
June 11, 1984 that respondents applied for
damages on the replevin bond, after the case had
long been dismissed. The trial court no longer
had jurisdiction and control over the case when it
awarded damages after it was dismissed and
thrown out of court in the certiorari case filed
respondents himself. Thus, the judgment of the
trial court awarding damages against the estate
of Maningo in the replevin case is null and void.
Logically, the petitioners' surety, Paramount
Insurance Corporation, should be released from
its liability under the bond.
CALDERON vs. IAC, 155 SCRA 531 The filing of a
counterbond
does not
relieve applicants
attachment bonds liability for damages. Liability
attaches if the plaintiff is not entitled to the
attachment because the requirements entitling
him to the writ are wanting, or if the plaintiff has
no right to the attachment because the facts
stated in the affidavit, or some of them are
untrue.
The final reckoning is when the court shall finally
adjudge that the attachment creditor was not
entitled to the issuance of the attachment writ in
the first place.
BA FINANCE CORP. vs. CA, 161 SCRA 608 An
attachment may be said to be wrongful when, for
instance, the plaintiff has no cause of action, or
that there is no true ground therefore, or that the
plaintiff has a sufficient security other than the
property attached, which is tantamout to saying
that the plaintiff is not entitled to attachment
because the requirements of entitling him to the
writ are wanting.
ZARAGOZA vs. FIDELINO, 163 SCRA 443 A party
against whom an attachment was issued may
apply for damages under the rule, it is not
Sources:
necessary that the judgment is favorable to him.

Although a party is adjudged liable to another if it
be established that the attachment issued at the
latters instance was wrongful and the former had
suffered injury thereby, recovery for damages
may be had by the party thus prejudiced by the
wrongful attachment, even if the judgment be
adverse to him.
PHILIPPINE CHARTER INSURANCE vs. CA, 179
SCRA 468
The surety on an attachment bond assures that
the applicant "will pay all the costs which may be
adjudged to the adverse party and all damages
which he may sustain by reason of the
attachment, if the court shall finally adjudge that
the applicant was not entitled thereto." In other
words the surety, by submitting its attachment
bond, binds itself solidarily to make the same
payments which its principal the party at
whose instance the attachment issues may be
condemned to make, to compensate for the
damages resulting from the wrongful attachment,
although unlike its principal, its liability is limited
to the amount stated in its bond.
The final adjudication "that the applicant was not
entitled" to the attachment, standing alone, does
not suffice to make the surety liable. It is
necessary, in addition, that the surety be
accorded due process, i.e., that it be given an
opportunity to be heard on the question of its
solidarily liability for damages arising from
wrongful attachment. This, by established rule
and practice, is accorded to the surety at a
summary hearing, scheduled after, judgment on
presentation of an application to hold it
answerable on its bond. Evidently, such a
summary hearing is not rendered unnecessary or
superfluous by the fact that the matter of
damages was among the issues tried during the
hearings on the merits, unless of course, the
surety had previously been duly impleaded as a
party, or otherwise earlier notified and given
opportunity to be present and ventilate its side on
the matter during the trial. The procedure for the
rendition of a binding directive on the surety upon
its solidarily liability for damages for wrongful
attachment is indicated in Section 20, Rule 57 of
the Rules of Court.
ZENITH INSURANCE CORP vs. CA, 119 SCRA 485
The liability of petitioner is expressly limited to
P250,000.00, the amount of the attachment
bond. A guaranty is not presumed, it must be
express and cannot extend to more than what is
stipulated therein.
Liability on the bond is contractual in nature, and
is ordinarily restricted to the obligation expressly
assumed therein. Liability on an attachment bond
is created by, and rests on, its stipulations. The
obligor has a right to stand on the very terms of
his contract, and his liability will not be extended
beyond the fair import of the words used; his
liability is one not to be extended by implication,
and it will not be inferred that he agreed to do
more than that which is fairly expressed in the
bond.
Measure of Damages
1. It is not the value of property attached but
the extent of actual damages that is the
measure of damages.
2. If the property levied upon remained in
possession of defendant, depreciation,
deterioration or damage must be borne by
him and cannot be charged to the plaintiff.
3. Attorneys fees for service rendered in
securing the release of property cannot be
allowed.
4. Surety is not answerable for all costs and
damages adjudged against its principal in
excess of that adjudged in the decision.
5. Even iyhf in good faith liability for
damages is there. If there is bad faith
moral damages may be awarded.
6. In order that moral damages may be
recovered in connection with the writ of
attachment under consideration, malice is
an essential ingredient thereof (Lazatin vs.
Twao, 2 SCRA 842). However, malice or
lack of good faith is not an element of
recovery on the bond.
7. The damages against the bond includes
exemplary damages and attorneys fees.
Note: Damages larger than the amount of the
bond may be awarded (Section 20, last par).
MC ENGINEERING vs. CA, 380 SCRA 116 Actual
or compensatory damages may be recovered for
wrongful, though no malicious, attachment.
The mere fact that a complaint is dismissed for
lack of legal basis will not justify an award of
moral damages to the prevailing party. Even the
dismissal of a "clearly unfounded civil action or
proceeding" will not entitle the winning party to
moral damages. For moral damages to be
awarded, the case must fall within the instances
enumerated in Article 2219, or under Article
2220, of the Civil Code. Moreover, in the absence
of fraud, malice, wanton recklessness or
oppressiveness, exemplary damages cannot be
awarded.
DM WENCESLAO vs. READYCON TRADING, 433
SCRA 251
Where the plaintiff is entitled to a writ of
preliminary attachment as a provisional remedy
by which the property of the defendant is taken
into custody of the law as a security for the
satisfaction of any judgment which the plaintiff
may recover. The latter will pay all the costs
which may be adjudged to the adverse party and
all damages which he may sustain by reason of
the attachment, but the court did adjudge that
the applicant was not entitled thereto the
adverse party must bear its own damages as a
result thereof.
SPOUSES YU vs. NGO YET TE, FEB. 6, 2007 To
merit an award of actual damages arising from a
wrongful attachment, the attachment defendant
must prove, with the best evidence obtainable,
the fact of loss or injury suffered and the amount
thereof. Such loss or injury must be of the kind
which is not only capable of proof but must
Sources:
actually be proved with a reasonable degree of

certainty. As to its amount, the same must be
measurable based on specific facts, and not on
guesswork or speculation. In particular, if the
claim for actual damages covers unrealized
profits, the amount of unrealized profits must be
established and supported by independent
evidence of the mean income of the business
undertaking interrupted by the illegal seizure.
CARLOS vs. SANDOVAL, 471 SCRA 266 Section
20 of Rule 57 requires that there be a proper
hearing before the application for damages on
the attachment bond may be granted. The
hearing requirement ties with the indispensable
demand of procedural due process. Due notice to
the adverse party and its surety setting forth the
facts supporting the applicant's right to damages
and the amount thereof under the bond is
essential. No judgment for damages may be
entered and executed against the surety
without giving it an opportunity to be heard as to
the reality or reasonableness of the damages
resulting from the wrongful issuance of the writ.
Under the rule, it was neither mandatory nor fatal
that there should be a separate hearing in order
that damages upon the bond can be claimed,
ascertained and awarded. What is necessary only
is for the attaching party and his surety or
sureties to be duly notified and given the
opportunity to be heard.
RULE 58
PRELIMINARY INJUNCTION
Section
1.
Preliminary
injunction
defined;
classes.
A
preliminary
injunction is an order granted at any
stage of an action or proceeding prior to
the judgment or final order, requiring a
party or a court, agency or a person to
refrain from a particular act or acts. It
may also require the performance of a
particular act or acts, in which case it
shall be known as a preliminary
mandatory injunction.
Injunction is a judicial writ, process or
proceeding whereby a party is ordered to do or
refrain from doing a particular act.
Preliminary Injunction (IP) is an order granted
at any stage of an action or proceeding prior to
the judgment requiring a party or a court, agency
or a person to refrain from a particular act or
acts.
Purpose:
To preserve the status quo or to
prevent future wrongs during the pendency of the
main action.
Preliminary Mandatory Injunction (PMI) is an
order requiring the performance of a particular
act or acts.
PROHIBITORY
Purpose is to prevent a
MANDATORY
Purpose is to require a
person
from
the
performance
of
a
particular act.
The act had not yet
been performed
Status quo is preserved
person to perform
particular act.
Sources:
The act has already

been performed and
this act has violated the
rights of another
Status quo is restored
Requisites: (IRU)
1. Invasion of the right is material and
substantial;
2. Right of the complainant is clear and
unmistakable; and
3. Urgent and paramount necessity for the writ
to prevent serious damages.
General Rule: It will not issue against acts
already consummated.
Exception: If the acts complained of are
continuing in nature and were in derogation of
plaintiffs rights at the outset.
Where writ is not available:
1. Foreclosure of a mortgage by a government
bank (PD 385);
2. Commencement
and
performance
of
infrastructure projects by the government (RA
8795); and
3. Concessions, licenses, permits, patents or
public
grants
as
to
the
disposition,
exploitation, utilization, exploration and/or
development of natural resources (PD 605).
INJUNCTION
Directed
against
party in the action
It does not involve

jurisdiction of the court
It may be the main

action itself or just a
provisional remedy
INJUNCTION
May exceed 20 days
Restrains or requires
the
performance
of
particular acts
PROHIBITION
Directed
against
a
court, tribunal or a
person
exercising
judicial, quasi-judicial or
ministerial functions
Based on the ground
that the court against
whom the writ is sought
had acted within or in
excess of jurisdiction
Always the main action
TRO
Does not exceed 20
days
Maintain status quo
TRO
Summary hearing
Prevents the doing of
an act
Requires the posting of
a bond
STATUS QUO ORDER

Issued motu proprio
Doing or undoing of
certain acts
Does not require a bond
DOH vs. PHIL. PHARMAWEALTH, MARCH 13, 2007

As regards petitioner DOH, the defense of
immunity from suit will not avail despite its being
an unincorporated agency of the government, for
the only causes of action directed against it are
preliminary injunction and mandamus. Under
Section 1, Rule 58 of the Rules of Court,
preliminary injunction may be directed against a
party or a court, agency or a person. Moreover,
the defense of state immunity from suit does not
apply in causes of action which do not seek to
impose a charge or financial liability against the
State.
LEVI STRAUSS vs. CLINTON APPARELLE, SEPT. 20,
2005 An extraordinary remedy, injunction is
designed to preserve or maintain the status
quo of things and is generally availed of to
prevent actual or threatened acts until the merits
of the case can be heard. It may be resorted to
only by a litigant for the preservation or
protection of his rights or interests and for no
other purpose during the pendency of the
principal action. It is resorted to only when there
is a pressing necessity to avoid injurious
consequences, which cannot be remedied under
any standard compensation. The resolution of an
application for a writ of preliminary injunction
rests upon the existence of an emergency or of a
special recourse before the main case can be
heard in due course of proceedings.
Section 2. Who may grant preliminary
injunction. A preliminary injunction
may be granted by the court where the
action or proceeding is pending. If the
action or proceeding is pending in the
Court of Appeals or in the Supreme
Court, it may be issued by said court or
any member thereof.
Who may grant:
1. Supreme Court in its original and appellate
jurisdiction;
2. Court of Appeals whether or not in aid of its
appellate jurisdiction;
3. Trial Court in cases pending before it within its
territorial jurisdiction;
4. Sandiganbayan; and
5. Court of Tax Appeals.
Status Quo: means the last, actual, peaceable

and uncontested state of things which preceded
the controversy.
Note: If the main action is one for injunction, an

inferior court cannot grant the preliminary
injunction.
Status Quo Order: is resorted to when the

projected proceedings in the case made the
conservation of the status quo desirable or
essential but the affected party neither sought
such relief nor did the allegations in his pleading
sufficiently make out a case for a TRO.
Ratio: An action for injunction is one incapable

of pecuniary estimation, hence, cognizable by the
RTC.

Limitations as to Power of RTC to issue Writ

of Preliminary Injunction
1. It could restrain acts being or about to be

committed within its territorial jurisdiction
only;
2. It could not issue said writ in unfair labor
practices;
3. It could not issue said writ against the
Securities and Exchange Commission (SEC),
Bureau
of
Patents,
Trademarks
and
Technology Transfer, or the COMELEC; and
4. It could not interfere by injunction with the
judgment of a court of concurrent or
coordinate jurisdiction.
DOCTRINE OF NON-JURISDICTION
GOMOS vs .ADIONG, OCT. 22, 2004 As the
presiding judge of RTC, Marawi City, he should
have known that Makati City was way beyond
the boundaries of his territorial jurisdiction
insofar as enforcing a writ of preliminary
injunction is concerned. Section 21(1) of B.P.
Blg. 129, as amended, provides that the RTC
shall exercise original jurisdiction in the
issuance of writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and
injunction which may be enforced in any part of
their respective regions. The rationale is that
the trial court has no jurisdiction to issue a writ
of preliminary injunction to enjoin acts being
performed or about to be performed outside its
territorial jurisdiction.
DELA PAZ vs. ADIONG, NOV. 23, 2004 Regional
Trial Courts can only enforce their writs of
injunction within their respective designated
territories. Generally, an injunction under
Section 21 of the Batas Pambansa Bilang 129 is
enforceable within the region. The reason is
that the trial court has no jurisdiction to issue a
writ of preliminary injunction to enjoin acts
being performed or about to be performed
outside its territorial boundaries.
MANGAHAS vs. PAREDES, FEB. 14, 2007
The issue involving the binding effect of the
injunction issued by the Quezon City RTC became
the law of the case between the parties. Under
this legal principle, whatever is irrevocably
established as the controlling legal rule or
decision between the parties in the same case
continues to be the law of the case, so long as
the facts on which the decision was predicated
continue. Stated otherwise, the doctrine holds
that once an appellate court has declared the law
in a case that declaration continues to hold even
in subsequent appeal. The reason lies in the fact
that public policy dictates that litigations must be
terminated at some definite time and that the
prevailing party should not be denied the fruits of
his victory by some subterfuge devised by the
losing party.
EXCEPTIONS
DECANO vs. EDU, 99 SCRA 410 Respondents
make capital of the fact that the petition for
mandamus with injunction was filed in the Court
of First Instance of Pangasinan while respondent
Edu holds office in Quezon City which, they claim,
is beyond the territorial jurisdiction of the said
Sources:
court. Respondents cite the long line of cases

from the 1960 case of Acosta vs. Alvendia where
this Court, pursuant to sec. 44 (h) of the Judiciary
Act, jointly or alternatively with sec. 4, Rule 65 of
the Rules of Court and/or section 2 of Rule 58,
ruled that a court of first instance has no
jurisdiction to require or control the execution of
an act committed beyond the limits of its
territorial jurisdiction. These cases invariably
involved petitions for writs of injunction seeking
to control the actions of courts or officers outside
the territorial jurisdiction of the respondent courts
of first instance where said petitions had been
filed. The Acosta ruling of non-jurisdiction does
not apply,
however, to the facts and
circumstances at bar.
Here, petitioner seeks primarily the annulment of
the dismissal order issued by respondent Edu,
mandamus and injunction being then merely
coronary remedies to the main relief sought, and
what is prayed to be enjoined, as in fact the trial
court did enjoin by preliminary injunction, is the
implementation of the termination order against
the petitioner. It is true that the order of dismissal
was issued by respondent Edu, but it was to be
implemented in Dagupan City by his subordinate
officer, respondent Acting Registrar of the LTC
stationed at Dagupan City. Insofar, therefore, as
respondent Edu is concerned, the order
terminating the services of respondent was a fait
accompli and this he had done without authority,
as earlier discussed. The injunction is question,
consequently, must be taken only to restrain the
implementation of respondent Edu's order by his
co-respondent whose official station at Dagupan
City is within the territorial boundaries of the trial
court's jurisdictional district.
DAGUPAN ELECTRIC CO. vs. PAO, 95 SCRA 693
The petitioners contend that the Court of First
Instance of Rizal at Quezon City has no
jurisdiction over the case because the act of
disconnecting the power to the hotel of the MC
Adore Finance and Investment, Inc. took place in
Dagupan City, outside the Province of Rizal and
Quezon City.
The respondents submit that the act of
disconnection was the result of an order issued
by the Dagupan Electric Corporation from its
business office in Quezon City.
The Court of First Instance of Rizal at Quezon City
has jurisdiction over the case.
The Dagupan Electric Corporation has its principal
office in Quezon City where the business of the
corporation is managed by the Board of Directors.
Decisions of the said corporation are made in
Quezon City. The employees of the Dagupan
Electric Corporation in Dagupan City merely carry
out the orders issued by the officials of said
corporation in Quezon City. Hence the acts sought
to be restrained are being committed in Quezon
City.
ALLGEMEINE-BAU-CHEMIE
PHILS.
vs.
METROBANK, FEB 10, 2006 An original action
for injunction is outside the jurisdiction of the
Court of Appeals, however. Under B.P. 129, the
appellate court has original jurisdiction only over
actions for annulment of judgments of the RTCs

and has original jurisdiction to issue writs of
mandamus, prohibition, certiorari, habeas corpus
and quo warranto, and auxiliary writs or
processes whether or not they are in aid of its
appellate jurisdiction.
The appellate courts jurisdiction to grant a writ of
preliminary injunction is limited to actions or
proceedings pending before it, as Section 2 of
Rule 58 of the Rules clearly provides or in a
petition for certiorari, prohibition or mandamus
under Section 7 of Rule 65
CIVIL SERVICE COMMISSION vs. CA, NOV. 17,
2005 Having appellate jurisdiction over
decisions of the CSC, the CA clearly has the
discretion to issue an ancillary writ of preliminary
injunction to secure the rights of private
respondent pending appeal of his dismissal.
Absent a clear showing of grave abuse of
discretion, the exercise of judgment by the courts
in injunctive matters should not be interfered
with.
CITY GOVERNMENT OF BAGUIO vs. MASWENG,
FEB. 4, 2009 The NCIP may issue temporary
restraining orders and writs of injunction without
any prohibition against the issuance of the writ
when the main action is for injunction. The power
to issue temporary restraining orders or writs of
injunction allows parties to a dispute over which
the NCIP has jurisdiction to seek relief against any
action which may cause them grave or
irreparable damage or injury. In this case, the
Regional Hearing Officer issued the injunctive writ
because its jurisdiction was called upon to protect
and preserve the rights of private respondents
who are undoubtedly members of ICCs/IPs.
REYES vs. DEMETRIA, JAN. 14, 2003 While any
member of the Court of Appeals may issue
preliminary injunction or TRO, this power is
exercised only in case of extreme urgency and in
the tradition of the Supreme Court, the Court en
banc or division ratifies or confirm the act of the
single justice at the very next session of the
Court.
2002 INTERNAL RULES OF THE COURT OF
APPEALS
Rule IV, Section 2. Action by the Presiding
Justice When a petition involves an urgent
matter, such as an application for writ of habeas
corpus or temporary restraining order, and there
is no way of convening the Raffle Committee or
calling any of its members, the Presiding Justice
or the Executive Justice, as the case may be
or in their absence, the most senior Justice
present may conduct the raffle or act on the
petition, subject to the raffle on the next working
day in accordance with Rule III hereof(n).
Rule VI, Section 5. Action by a Justice. - All
members of the Division shall act upon an
application for a temporary restraining order and
writ of preliminary injunction. However, if the
matter is of extreme urgency, and a Justice is
absent, the two other justices shall act upon the
Sources:
application. If only the ponente is present, then

he shall act alone upon the application. The
action of the two Justices or of the ponente shall
however be submitted on the next working day to
the absent member or members of the Division
for ratification, modification or recall.
Section 3. Grounds for issuance of
preliminary injunction. A preliminary
injunction may be granted when it is
established:
(a) That the applicant is entitled to
the relief demanded, and the whole or
part of such relief consists in restraining
the commission or continuance of the
act or acts complained of, or in requiring
the performance of an act or acts, either
for a limited period or perpetually;
(b) That the commission, continuance
or non-performance of the act or acts
complained of during the litigation
would probably work injustice to the
applicant; or
(c) That a party, court, agency or a
person is doing, threatening, or is
attempting to do, or is procuring or
sufering to be done, some act or acts
probably in violation of the rights of the
applicant respecting the subject of the
action or proceeding, and tending to
render the judgment inefectual.
Grounds
for
issuance
of
Preliminary
Injunction: (EnCoD)
1. Applicant is Entitled to the relief demanded;
or
2. Commission, continuance or non-performance
of the act complained of would work injustice
to the applicant; or
3. Party, court, agency or a person is Doing,
threatening, or is attempting to do, or is
procuring or suffering to be done, some act or
acts probably in violation of the rights of the
applicant respecting the subject of the action
or proceeding.
WHEN INJUNCTION NOT PROPER
MANILA INTL AIRPORT vs. CA, FEB. 14, 2003
The requisites necessary for the issuance of a
writ of preliminary injunction are: (1) the
existence of a clear and unmistakable right that
must be protected; and (2) an urgent and
paramount necessity for the writ to prevent
serious damage. The duty of the court taking
cognizance of a prayer for a writ of preliminary
injunction is to determine whether the requisites
necessary for the grant of an injunction are
present in the case before it.
In the instant case, however, the trial courts
order was, on its face, bereft of basis for the
issuance of a writ of preliminary injunction. There
were no findings of fact or law in the assailed
order indicating that any of the elements
essential for the grant of a preliminary injunction
existed. The trial court alluded to hearings during
which the parties marked their respective exhibits
and the trial court heard the oral arguments of
opposing counsels. However, it cannot be

ascertained what evidence was formally offered
and presented by the parties and given weight
and credence by the trial court. The basis for the
trial courts conclusion that K Services was
entitled to a writ of preliminary injunction is
unclear.
BANGUS FRY FISHERFOLK vs. LANZANAS, JULY 10,
2003 The jurisdiction of Regional Trial Courts to
issue injunctive writs is limited to acts committed
or about to be committed within their judicial
region. Moreover, Presidential Decree No. 1818
(PD No. 1818) prohibited courts from issuing
injunctive writs against government infrastructure
projects like the mooring facility in the present
case. Republic Act No. 8975 (RA No. 8975),
which took effect on 26 November 2000,
superseded PD No. 1818 and delineates more
clearly the coverage of the prohibition, reserves
the power to issue such writs exclusively with this
Court,
and
provides
penalties
for
its
violation. Obviously, neither the Manila RTC nor
the Oriental Mindoro RTC can issue an injunctive
writ to stop the construction of the mooring
facility. Only this Court can do so under PD No.
1818 and later under RA No. 8975. Thus, the
question of whether the Manila RTC has
jurisdiction over the complaint considering that
its injunctive writ is not enforceable in Oriental
Mindoro is academic.
Clearly, the Manila RTC has jurisdiction to
determine the validity of the issuance of the ECC,
although it could not issue an injunctive writ
against the DENR or NAPOCOR. However, since
the construction of the mooring facility could not
proceed without a valid ECC, the validity of the
ECC remains the determinative issue in resolving
petitioners complaint.
Section 1 of PD No. 1818 provides as
follows:
No court in the Philippines shall have
jurisdiction to issue any restraining order,
preliminary injunction, or preliminary
mandatory injunction in any case, dispute,
or controversy involving an infrastructure
project, or a mining, fishery, forest or
other natural
resource development
project of the government, or any public
utility operated by the government,
including among others public utilities for
the transport of the goods or commodities,
stevedoring and arrastre contracts, to
prohibit any person or persons, entity or
governmental official from proceeding
with, or continuing the execution or
implementation of any such project, or the
operation of such public utility, or pursuing
any lawful activity necessary for such
execution, implementation or operation.
Section 3 of RA No. 8975 prohibits courts,
except the Supreme Court, from issuing
temporary
restraining orders,
preliminary
injunctions, or preliminary mandatory injunctions
against the government, its agencies, or any
person or entity whether public or private,
involving national government projects, defined
in Section 2 of the law as follows:
Sources:
National government projects shall refer

to all current and future national
government infrastructure, engineering
works and service contracts, including
projects undertaken by governmentowned and controlled corporations, all
projects covered by Republic Act No. 6957,
as amended by Republic Act No. 7718,
otherwise known as the Build-Operateand-Transfer Law, and other related and
necessary
activities
such
as
site
acquisition, supply and/or installation of
equipment and materials, implementation,
construction,
completion,
operation,
maintenance, improvement, repair and
rehabilitation, regardless of the source of
funding.
FAR EAST BANK vs. CA, APRIL 1, 1996 The issue
whether or not injunction in favor of the petitioner
should issue hinges on the important question:
Whether the disputed fixed assets were
collateralized with the Central Bank?
In this case, the trial court, as affirmed by the
respondent Court of Appeals, found that the
subject fixed assets were indeed submitted as
collaterals with the Central Bank, and therefore
were among the items not covered by the
Purchase Agreement signed by the parties
pursuant to the Memorandum of Agreement.
Hence, the inescapable conclusion is that
petitioner never acquired ownership over these
properties.
BAYANIHAN MUSIC vs. BMG RECORDS, MAR 7,
2005
There is manifest abuse of discretion in the
issuance of an injunctive writ if the following
requisites provided for by law are not present: (1)
there must be a right in esse or the existence of a
right to be protected; and (2) the act against
which the injunction is to be directed is a violation
of such right.
Of course, while a clear showing of the right to an
injunctive writ is necessary albeit its existence
need not be conclusively established, as the
evidence required therefor need not be
conclusive or complete, still, for an applicant, like
petitioner Bayanihan, to be entitled to the writ,
he is required to show that he has the ostensible
right to the final relief prayed for in its complaint.
Here, the trial court did not find ample
justifications for the issuance of the writ prayed
for by petitioner.
LEVI STRAUSS vs. CLINTON APPARELLE, SEPT. 20,
2005 We find that petitioners right to injunctive
relief has not been clearly and unmistakably
demonstrated. The right has yet to be
determined. Petitioners also failed to show proof
that there is material and substantial invasion of
their right to warrant the issuance of an injunctive
writ. Neither were petitioners able to show any
urgent and permanent necessity for the writ to
prevent serious damage.
They assert that a trademark owner does not
have to wait until the mark loses its
distinctiveness to obtain injunctive relief, and that
the mere use by an infringer of a registered mark

is already actionable even if he has not yet
profited thereby or has damaged the trademark
owner.
To be eligible for protection from dilution, there
has to be a finding that: (1) the trademark sought
to be protected is famous and distinctive; (2) the
use by respondent of Paddocks and Design
began after the petitioners mark became
famous; and (3) such subsequent use defames
petitioners mark. In the case at bar, petitioners
have yet to establish whether Dockers and
Design has acquired a strong degree of
distinctiveness and whether the other two
elements are present for their cause to fall within
the ambit of the invoked protection. The Trends
MBL Survey Report which petitioners presented in
a bid to establish that there was confusing
similarity between two marks is not sufficient
proof of any dilution that the trial court must
enjoin.
ELIDAD C. KHO vs. CA, MAR. 19, 2002 Petitioner
has no right to support her claim for the exclusive
use of the subject trade name and its container.
The name and container of a beauty cream
product are proper subjects of a trademark
inasmuch as the same falls squarely within its
definition. In order to be entitled to exclusively
use the same in the sale of the beauty cream
product, the user must sufficiently prove that she
registered or used it before anybody else did. The
petitioners copyright and patent registration of
the name and container would not guarantee her
the right to the exclusive use of the same for the
reason that they are not appropriate subjects of
the said intellectual rights. Consequently, a
preliminary injunction order cannot be issued for
the reason that the petitioner has not proven that
she has a clear right over the said name and
container to the exclusion of others, not having
proven that she has registered a trademark
thereto or used the same before anyone did.
WHEN INJUNCTION PROPER
UNILEVER PHILS. vs. CA, AUG. 10, 2006
Injunction is resorted to only when there is a
pressing
necessity
to
avoid
injurious
consequences which cannot be remedied under
any standard compensation. As correctly ruled by
the CA, there was an extreme urgency to grant
the preliminary injunction prayed for by P&GP
considering that TV commercials are aired for a
limited period of time only. In fact, this Court
takes note of the fact that the TV commercial in
issue the Kite TV advertisement is no longer
aired today, more than 10 years after the
injunction was granted on September 16, 1994.
TALENTO vs. ESCALADA, JR., JUNE 27, 2008 The
requisites for the issuance of a writ of preliminary
injunction are: (1) the existence of a clear and
unmistakable right that must be protected; and
(2) an urgent and paramount necessity for the
writ to prevent serious damage.
The urgency and paramount necessity for the
issuance of a writ of injunction becomes relevant
in the instant case considering that what is being
Sources:
enjoined is the sale by public auction of the

properties of Petron amounting to at least P1.7
billion and which properties are vital to its
business operations. If at all, the repercussions
and far-reaching implications of the sale of these
properties on the operations of Petron merit the
issuance of a writ of preliminary injunction in its
favor.
CIVIL SERVICE COMMISSION vs. CA, NOV. 17,
2005 The assailed Order does not state the
basis for the issuance of a writ of preliminary
injunction. The CA made no findings of fact or
law indicating that any of the elements essential
for the grant of an injunctive writ existed. After
merely stating that it took into consideration the
allegations and the arguments set forth in the
Urgent Motion filed by Gannapao, the CA
immediately
concluded
afterwards
that
respondent was entitled to the relief demanded.
Nevertheless, in the interest of justice and fair
play, this Court scrutinized the records of the
case and, indeed, found sufficient grounds for the
grant of the injunctive Writ. Prior to the finality of
the CSC Decision dismissing him, private
respondent has a clear and unmistakable right to
his current position in the police service.
Unquestionably, the right to employment,
oftentimes the lowly employees only noble
source of bread and butter, is entitled to
protection by the State.
Moreover, the immediate implementation of the
not yet final penalty of dismissal from the service
would surely cause private respondent (and his
family) irreparable damage. As pleaded in his
Urgent Motion for Issuance of Temporary
Restraining Order and/or Preliminary Injunction,
his salary and benefits as a policeman are his
familys only source of income.
Section 4. Verified application and bond
for preliminary injunction or temporary
restraining
order.
A
preliminary
injunction or temporary restraining
order may be granted only when:
(a) The application in the action or
proceeding is verified, and shows facts
entitling the applicant to the relief
demanded; and
(b) Unless exempted by the court, the
applicant files with the court where the
action or proceeding is pending, a bond
executed to the party or person
enjoined, in an amount to be fixed by the
court, to the efect that the applicant
will pay to such party or person all
damages which he may sustain by
reason of the injunction or temporary
restraining order if the court should
finally decide that the applicant was not
entitled thereto. Upon approval of the
requisite bond, a writ of preliminary
injunction shall be issued.
(c) When an application for a writ of
preliminary injunction or a temporary
restraining order is included in a
complaint or any initiatory pleading, the
case, if filed in a multiple-sala court,

shall be raffled only after notice to and
in the presence of the adverse party or
the person to be enjoined. In any event,
such notice shall be preceded, or
contemporaneously
accompanied,
by
service of summons, together with a
copy of the complaint or initiatory
pleading and the applicants affidavit
and bond, upon the adverse party in the
Philippines.
However, where the summons could
not
be
served
personally
or
by
substituted service despite diligent
eforts, or the adverse party is a
resident of the Philippines temporarily
absent therefrom or is a nonresident
thereof, the requirement of prior or
contemporaneous service of summons
shall not apply.
(d) The application for a temporary
restraining order shall thereafter be
acted upon only after all parties are
heard in a summary hearing which shall
be conducted within twenty-four (24)
hours after the sherifs return of service
and/or the records are received by the
branch selected by raffle and to which
the
records
shall
be
transmitted
immediately.
BACOLOD CITY WATER DISTRICT vs. LABAYEN,
DEC. 10, 2004
The main action for injunction is distinct from the
provisional or ancillary remedy of preliminary
injunction which cannot exist except only as part
or an incident of an independent action or
proceeding. As a matter of course, in an action
for injunction, the auxiliary remedy of preliminary
injunction, whether prohibitory or mandatory,
may issue. Under the law, the main action for
injunction seeks a judgment embodying a final
injunction which is distinct from, and should not
be confused with, the provisional remedy of
preliminary injunction, the sole object of which is
to preserve the status quo until the merits can be
heard. A preliminary injunction is granted at any
stage of an action or proceeding prior to the
judgment or final order. It persists until it is
dissolved or until the termination of the action
without the court issuing a final injunction.
A restraining order, on the other hand, is issued
to preserve the status quo until the hearing of
the
application
for
preliminary
injunction which cannot be issued ex parte.
Under Rule 58 of the Rules of Court, a judge may
issue a temporary restraining order with a limited
life of twenty (20) days from date of issue. If
before the expiration of the twenty (20)-day
period the application for preliminary injunction is
denied, the temporary restraining order would be
deemed automatically vacated. If no action is
taken by the judge on the application for
preliminary injunction within the said twenty (20)
days,
the
temporary
restraining
order
would automatically expire on the 20th day by
Sources:
the sheer force of law, no judicial declaration to

that effect being necessary.
UNIVERSAL MOTORS CORP. vs. ROJAS, MAY 26,
2005 While Section 4(b) of Rule 58 gives the
presiding judge the discretion to require a bond
before granting a temporary restraining order,
the Rules did not intend to give the judge the
license to exercise such discretion arbitrarily to
the prejudice of the defendant. Certainly, each
member of the Bench is not a depository of
arbitrary power, but a judge under the sanction of
law. The bond under Rule 58 is intended to pay all
the damages which the party or person against
whom the temporary restraining order or
injunction is issued may sustain by reason thereof
should the court finally decide that the applicant
was not entitled thereto. Hence, it follows that
unless it appears that the enjoined party will not
suffer any damage, the presiding judge must
require the applicant to post a bond, otherwise
the courts could become instruments of
oppression and harassment.
IN RE ADMIN COMPLAINT vs. ABESAMIS, FEB. 13,
2002
BORJA vs. SALCEDO, SEPT. 26, 2003 The holding
of a summary hearing prior to the issuance of a
temporary restraining order is mandatory, in view
of the requirement that the application for a
temporary restraining order shall be acted upon
only after all parties are heard in a summary
hearing after the records are transmitted to the
branch selected by raffle. In other words, a
summary hearing may not be dispensed with.
A TRO can be issued ex parte if the matter is of
such extreme urgency that grave injustice and
irreparable injury will arise unless it is issued
immediately.
Under
such
circumstance,
the executive judge shall issue the TRO
effective only for seventy-two (72) hours from its
issuance. The executive judge is then required to
summon the parties to a conference, during
which the case should be raffled in their
presence. Before the expiry of the seventy-two
hours, the presiding judge to whom the case was
raffled shall conduct a summary hearing to
determine whether the TRO can be extended for
another period until a hearing on the pending
application for preliminary injunction can be held.
(Emphasis supplied)
The reason for this is that Administrative Circular
No. 20-95 aims to restrict the ex parte issuance
of a TRO to cases of extreme urgency in order to
avoid grave injustice and irreparable injury.
PESAYCO vs. LAYAGUE, DEC. 22, 2004 There is
dispute that PNB was not entitled to a notice of
raffle at the time the initial complaint of the
spouses Limso was filed since the same did not
contain a prayer for a TRO. However, when the
complaint was amended to include such prayer, a
notice of raffle should have been sent to PNB. The
OCA, agreeing with Pesayco, submits that Judge
Layagues failure to send notice of raffle
constitutes a violation of Section 4(c), Rule 58 of
the 1997 Rules of Civil Procedure.
The OCA notes that to allow otherwise would lead

to easy circumvention of the rules by filing first a
complaint without any prayer for a TRO, and
amending such complaint only after the case had
been raffled off to include a prayer for the
issuance of a TRO, thus effectively evading the
requirement of notice to the adverse party, as
well as depriving such party the opportunity to
witness the raffle of the case. These concerns are
quite valid, yet must be qualified by the following
observations.
There is no rule of procedure that authorizes the
re-raffling of a case by reason of an amendment
of a complaint to include a prayer for preliminary
injunction or a TRO. Neither has there been
jurisprudence holding that such re-raffling should
be done. It would thus be absurd to require the
sending out of notices for a non-existent raffle.
On this point, Judge Layague could not be taken
to task for not applying Section 4(c) of Rule 58
simply because there is no indubitable or settled
guidepost that the procedure should be observed
in the situation in point.
The concerns of the OCA are understandable, and
it may well be observed that the spouses Limso
have come across a loophole to Rule 58. Yet we
are mindful that the issue we are resolving is
whether Judge Layague betrayed gross ignorance
of the law in not applying Section 4(c), Rule 58.
Considering that the notice/raffle requirement in
relation to a complaint amended to include a
prayer for TRO is a gray area which has yet to be
clarified by the Court, we could not blame Judge
Layague for retaining his assignment absent any
express command in law or jurisprudence for him
to abdicate it. Besides, such action is hardly
indicative of any bad faith, dishonesty, hatred or
some other like motive which characterizes the
offense of gross ignorance of the law.
ASSOCIATION vs. LERMA, FEB 18, 2005
Pertinent
paragraphs
of
Supreme
Court
Administrative Circular No. 20-95 are quoted
hereunder:
1. Where an application for temporary
restraining order (TRO) or writ of preliminary
injunction is included in a complaint or any
initiatory pleading filed with the trial court,
such complaint or initiatory pleading shall
be raffled only after notice to the adverse
party and in the presence of such party or
counsel.
2. The application for a TRO shall be acted
upon only after all parties are heard in a
summary hearing conducted within twentyfour (24) hours after the records are
transmitted to the branch selected by raffle.
The records shall be transmitted immediately
after raffle.
xxx (Emphasis and underscoring supplied)
This circular is now incorporated in the present
Rules of Court as Rule 58, Section 4 as follows:
SEC. 4. Verified application and bond for
preliminary injunction or restraining order. - A
preliminary injunction or temporary restraining
order may be granted only when:
xxx
Sources:
(c) When an application for a writ of

preliminary injunction or a temporary
restraining order is included in a complaint or
any initiatory pleading, the case, if filed in a
multi-sala court, shall be raffled only after
notice to and in the presence of the adverse
party or the person sought to be enjoined. In
any event, such notice shall be preceded, or
contemporaneously accompanied, by service
of summons, together with a copy of the
complaint or initiatory pleading and the
applicants affidavit and bond, upon the
adverse party in the Philippines.
xxx
(d)
The application for a temporary
restraining order shall thereafter be acted
summary hearing which shall be conducted
within twenty four (24) hours after the
sheriffs return of service and/or records are
received by the branch selected by raffle and
to which the records shall be transmitted
immediately. (Underscoring supplied)
Section 5. Preliminary injunction not
granted without notice; exception. No
preliminary injunction shall be granted
without hearing and prior notice to the
party or person sought to be enjoined. If
it shall appear from facts shown by
affidavits or by the verified application
that great or irreparable injury would
result to the applicant before the matter
can be heard on notice, the court to
which the application for preliminary
injunction was made, may issue ex parte
a temporary restraining order to be
efective only for a period of twenty (20)
days from service on the party or person
sought to be enjoined, except as herein
provided. Within the said twenty-day
period, the court must order said party
or person to show cause, at a specified
time and place, why the injunction
should not be granted, determine within
the same period whether or not the
preliminary injunction shall be granted,
and accordingly issue the corresponding
order.
However,
and
subject
to
the
provisions of the preceding sections, if
the matter is of extreme urgency and
the applicant will sufer grave injustice
and irreparable injury, the executive
judge of a multiple-sala court or the
presiding judge of a single-sala court
may issue ex parte a temporary
restraining order efective for only
seventy-two (72) hours from issuance
but he shall immediately comply with the
provisions of the next preceding section
as to service of summons and the
documents to be served therewith.
Thereafter, within the aforesaid seventytwo (72) hours, the judge before whom
the case is pending shall conduct a
summary hearing to determine whether
the temporary restraining order shall be
extended until the application for

preliminary injunction can be heard. In
no case shall the total period of
efectivity of the temporary restraining
order exceed twenty (20) days, including
the original seventy-two hours provided
herein.
In the event that the application for
preliminary injunction is denied or not
resolved within the said period, the
temporary restraining order is deemed
automatically vacated. The efectivity of
a temporary restraining order is not
extendible without need of any judicial
declaration to that efect and no court
shall have authority to extend or renew
the same on the same ground for which
it was issued.
However, if issued by the Court of
Appeals or a member thereof, the
temporary restraining order shall be
efective for sixty (60) days from service
on the party or person sought to be
enjoined. A restraining order issued by
the Supreme Court or a member thereof
shall be efective until further orders.
There must be prior notice to the person sought
to be enjoined and a hearing before preliminary
injunction may be granted.
A. IF great or irreparable injury would
result to the applicant before the matter
can be heard on notice:
The court may issue a temporary
restraining order, effective only for 20
days from notice on the party sought to be
enjoined.
B. IF the matter is of extreme urgency and
the applicant will sufer grave injustice
and irreparable injury:
The judge may issue ex parte a TRO
effective only for 72 hours from issuance.
Its effectivity may be extended after
conducting a summary hearing within the
72-hr period until the application for
preliminary injunction can be heard.
The total period of effectivity of the TRO shall not
exceed 20 days, including the 72 hours.
Note: If application is denied or not resolved
within said period, the TRO is deemed
automatically vacated.
The effectivity of TRO is not extendible. There is
no need of a judicial declaration to that effect.
A TRO issued by the CA or any of its
members is effective for 60 days from
notice to the party sought to be enjoined.
A TRO issued by the SC or a member
thereof is effective until further orders.
Injury is considered IRREPARABLE if it is of
such constant and frequent recurrence that no
fair or reasonable redress can be had therefore in
court of law or where there is no standard by
Sources:
which their amount can be measured with

reasonable accuracy. (SSC vs. Bayona, G.R. No. L13555, May 30, 1982)
Note: The trial court, the CA, the Sandiganbayan
or the CTA that issued a writ of preliminary
injunction against a lower court, board, officer, or
quasi-judicial agency shall decide the main case
or petition within six (6) months from the
issuance of the writ (As amended by A.M. No. 077-12-SC effective December 27, 2007).
EDITHA PALMA GIL vs. LOPEZ, JR., APR. 29, 2003
The Rules explicitly mandate that the application
for injunction should be verified. While litigation
is not a game of technicalities, every case must
be prosecuted in accordance with the prescribed
procedure to insure an orderly administration of
justice.
FORTUNE LIFE INSURANCE vs. LUCZON, JR., NOV.
30, 2006 Upon the application for a writ of
preliminary injunction, where the matter is of
extreme urgency and grave injustice and
irreparable injury will arise, the Executive Judge
may issue ex parte a TRO effective for 72 hours
from issuance. Before the expiry of the 72 hours,
the presiding judge to whom the case is raffled
shall conduct a summary hearing to determine
whether the TRO can be extended until the
pending application for injunction can be heard.
GOMOS vs. ADIONG, OCT. 22, 2004 Sections
4(c) and 5, Rule 58 of the 1997 Rules of Civil
Procedure is very explicit that the writ of
preliminary injunction may issue only after prior
notice and hearing upon the adverse party. In
issuing the subject writ on the very same day the
application was filed and considering that the
person against whom the same was to be served
was located in Makati, summons could not have
been served upon them or a hearing conducted in
evident
disregard
of
the
due
process
requirements of the Rules of Court.
MERONTOS vs. ZERNA, AUG. 9, 2001
Administrative Circular No. 20-95 requires that an
application for a TRO shall be acted upon, only
after all parties are heard in a summary
hearing. It clearly provides:
SUBJECT:
RE: SPECIAL
RULES
FOR
TEMPORARY
RESTRAINING
ORDERS
AND
PRELIMINARY INJUNCTIONS.
1. Where an application for temporary
restraining order (TRO) or writ of
preliminary injunction is included in a
complaint or any initiatory pleading filed
with the trial court, such complaint or
initiatory pleading shall be raffled only
after notice to the adverse party and in
the presence of such party or counsel.
2. The application for a TRO shall be acted
summary
hearing
conducted
within
twenty-four (24) hours after the records
are transmitted to the branch selected by
raffle. The records shall be transmitted
immediately after raffle.
3. If the matter is of extreme urgency, such

that unless a TRO is issued, grave injustice
and irreparable injury will arise, the
Executive Judge shall issue the TRO
effective only for seventy-two (72) hours
from issuance but shall immediately
summon the parties for conference and
immediately raffle the case in their
presence. Thereafter, before the expiry of
the seventy-two (72) hours, the Presiding
Judge to whom the case is assigned shall
conduct a summary hearing to determine
whether the TRO can be extended for
another period until a hearing [o]n the
pending
application
for
preliminary
injunction can be conducted. In no case
shall the total period x x x exceed twenty
(20) days, including the original seventytwo (72) hours, for the TRO issued by the
Executive Judge.
IN RE ADMIN COMPLAINT vs. ABESAMIS, FEB 13,
2002
Section 6. Grounds for objection to, or
for motion of dissolution of, injunction or
restraining order. The application for
injunction or restraining order may be
denied,
upon
a
showing
of
its
insufficiency.
The
injunction
or
restraining order may also be denied, or,
if granted, may be dissolved, on other
grounds upon affidavits of the party or
person enjoined, which may be opposed
by the applicant also by affidavits. It
may further be denied, or, if granted,
may be dissolved, if it appears after
hearing that although the applicant is
entitled to the injunction or restraining
order, the issuance or continuance
thereof, as the case may be, would cause
irreparable damage to the party or
person enjoined while the applicant can
be fully compensated for such damages
as he may sufer, and the former files a
bond in an amount fixed by the court
conditioned that he will pay all damages
which the applicant may sufer by the
denial
or
the
dissolution
of
the
injunction or restraining order. If it
appears
that
the
extent
of
the
preliminary injunction or restraining
order granted is too great, it may be
modified.
Grounds for Objection to or for Motion of
Dissolution
1. Insufficiency;
2. On other grounds upon affidavits of the party
or person enjoined, which may be opposed by
the applicant also by affidavits; and
3. If injunction would cause irreparable damage
to the person enjoined while the applicant can
be fully compensated for such damages as he
may suffer. PROVIDED, the defendant files a
BOND to pay all the damages which the
applicant may suffer.
Sources:
SPOUSES YAP vs. INTL EXCHANGE BANK, MAR.

28, 2008 A preliminary injunction may be
dissolved if it appears after hearing that although
the applicant is entitled to the injunction or
restraining order, the issuance or continuance
thereof, as the case may be, would cause
irreparable damage to the party or person
enjoined while the applicant can be fully
compensated for such damages as he may suffer,
and the former files a bond in an amount fixed by
the court on condition that he will pay all
damages which the applicant may suffer by the
denial or the dissolution of the injunction or
restraining
order. Two
conditions
must
concur: first, the court in the exercise of its
discretion, finds that the continuance of the
injunction would cause great damage to the
defendant, while the plaintiff can be fully
compensated for such damages as he may suffer;
second, the defendant files a counter-bond.
Section 7. Service of copies of bonds;
effect of disapproval of same. The
party filing a bond in accordance with
the provisions of this Rule shall
forthwith serve a copy of such bond on
the other party, who may except to the
sufficiency of the bond, or of the surety
or sureties thereon. If the applicants
bond is found to be insufficient in
amount, or if the surety or sureties
thereon fail to justify, and a bond
sufficient in amount with sufficient
sureties approved after justification is
not filed forthwith, the injunction shall
be dissolved. If the bond of the adverse
party is found to be insufficient in
amount, or the surety or sureties
thereon fail to justify a bond sufficient in
amount with sufficient sureties approved
after justification is not filed forthwith,
the injunction shall be granted or
restored, as the case may be.
Section 8. Judgment to include damages
against party and sureties. At the trial,
the amount of damages to be awarded
to either party, upon the bond of the
adverse
party,
shall
be
claimed,
ascertained, and awarded under the
same procedure prescribed in section 20
of Rule 57.
The procedure for claiming damages on the bond
is the same as that in preliminary attachment.
Recovery of damages for irregular issuance of
injunction, as where the main case is dismissed
and the injunction is dissolved, is limited to the
amount of the bond.
NATALIA REALTY vs. CA, FEB. 5, 2003
PHILEX GOLD vs. PHILEX BULAWAN, AUG. 25,
2005
Sources:
Section
9.
When
final
injunction
granted. If after the trial of the action
it appears that the applicant is entitled
to have the act or acts complained of
permanently enjoined, the court shall
grant a final injunction perpetually
restraining the party or person enjoined
from the commission or continuance of
the act or acts or confirming the
preliminary mandatory injunction.
If after the trial of the action it appears that the
applicant is entitled to have the act or acts
complained of permanently enjoined.
Preliminary
Injunction
Section 1, Rule 58
Granted at any stage of
an action prior to the
judgment or final order
therein.
Final Injunction
Section 9, Rule 58
One issued in the
judgment in the case
permanently restraining
the
defendant
or
making the preliminary
injunction permanent.
ELIDAD C. KHO vs. CA, MAR. 19, 2002 The

issuance of a final injunction renders any
question on the preliminary injunctive order moot
and academic despite the fact that the decision
granting a final injunction is pending appeal.
Conversely, a decision denying the applicantplaintiffs right to a final injunction, although
appealed, renders moot and academic any
objection to the prior dissolution of a writ of
preliminary injunction.
RULE 59
RECEIVERSHIP
Section 1. Appointment of receiver.
Upon a verified application, one or more
receivers of the property subject of the
action or proceeding may be appointed
by the court where the action is pending,
or by the Court of Appeals or by the
Supreme Court, or a member thereof, in
the following cases:
(a) When it appears from the verified
application, and such other proof as the
court may require, that the party
applying for the appointment of a
receiver has an interest in the property
or fund which is the subject of the action
or proceeding, and that such property or
fund is in danger of being lost, removed,
or materially injured unless a receiver be
appointed to administer and preserve it;
(b) When it appears in an action by
the mortgagee for the foreclosure of a
mortgage that the property is in danger
of being wasted or dissipated or
materially injured, and that its value is
probably insufficient to discharge the
mortgage debt, or that the parties have
so
stipulated
in
the
contract
of
mortgage;
(c) After judgment, to preserve the

property during the pendency of an
appeal, or to dispose of it according to
the judgment, or to aid execution when
the
execution
has
been
returned
unsatisfied or the judgment obligor
refuses to apply his property in
satisfaction
of
the
judgment,
or
otherwise to carry the judgment into
efect;
(d) Whenever in other cases it
appears that the appointment of a
receiver is the most convenient and
feasible
means
of
preserving,
administering, or disposing of the
property in litigation.
During the pendency of an appeal,
the appellate court may allow an
application for the appointment of a
receiver to be filed in and decided by the
court of origin and
the receiver
appointed to be subject to the control of
said court.
Upon verified application, one or more
receivers of the property which is the subject of
the action may be appointed by the court where
the action is pending in the following cases:
(IFAC)
1. Applicant has an Interest in the property or
fund subject of the proceeding and such
property is in danger of being lost, removed,
or materially injured unless a receiver is
appointed;
2. In Foreclosure of mortgage, when the
property is in danger of being dissipated or
materially injured, and that it has been agreed
upon by the parties;
3. After judgment, to preserve the property
during the pendency of an Appeal or to
dispose of it according to the judgment or to
aid execution;
4. When appointment of receiver is the most
Convenient and feasible means of preserving,
administering or disposing of the property in
litigation.
Note: The property must be under litigation.
Requisites for the Appointment of a
Receiver
A receiver of real or personal property, which is
the subject of the action, may be appointed by
the court when it appears from the pleadings or
such other proof as the judge may require, that
the party applying for such appointment has
1) an actual interest in it; and
2) that (a) such property is in danger of being
lost, removed or materially inured; or (b)
whenever it appears to be the most
convenient and feasible means of
preserving or administering the property
in litigation (Commodities Storage vs. CA,
June 19, 1997).
Guiding principle in the appointment of a
receiver
The guiding principle is the prevention of

imminent danger to the property. If an action by
its nature, does not require such protection or
preservation, said remedy cannot be applied for
and granted (Commodities Storage vs. CA,
supra.).
Purpose: For the preservation of the property
involved in the suit and to protect the rights of all
parties under the direction of the court.
A receiver is a person appointed by the court in
behalf of all the parties to an action for the
purpose of preserving the property involved in
the suit and to protect the rights of all the parties
under the direction of the court (Millari vs. CA,
G.R. No. L-26467, July 15, 1981).
A receiver is not a representative party under
Rule 3 but a real party in interest, BUT he cannot
file a case without the consent of the receivership
court.
Receivership, like injunction, may be the

principal action itself or just an ancillary
remedy.
Such appointment of the RTC during the
perfection of an appeal is covered by its
residual jurisdiction under Sec. 9 of Rule 41,
since this does not involve any matter
litigated by the appeal.
Neither party to a litigation should be appointed

as receiver without the consent of the other
because a receiver should be a person indifferent
to the parties and should be impartial and
disinterested ((Commodities Storage vs. CA,
supra.).
Note: This provisional remedy may be resorted
to during the pendency of an appeal or even after
the judgment has become final and executor.
Section 2. Bond on appointment of
receiver. Before issuing the order
appointing a receiver the court shall
require the applicant to file a bond
executed to the party against whom the
application is presented, in an amount to
be fixed by the court, to the efect that
the applicant will pay such party all
damages he may sustain by reason of
the appointment of such receiver in case
the applicant shall have procured such
appointment without sufficient cause;
and the court may, in its discretion, at
any time after the appointment, require
an additional bond as further security
for such damages.
Section 3. Denial of application or
discharge of receiver. The application
may
be
denied,
or
the
receiver
discharged, when the adverse party files
a bond executed to the applicant, in an
amount to be fixed by the court, to the
efect that such party will pay the
Sources:
applicant all damages he may sufer by

reason of the acts, omissions, or other
matters specified in the application as
ground for such appointment. The
receiver may also be discharged if it is
shown
that
his
appointment
was
obtained without sufficient cause.
Receivership may be denied or lifted:
1. If the appointment sought or granted is
without sufficient cause (Sec. 3);
2. Adverse party files a sufficient bond to answer
for damages (Sec. 3);
3. Bond posted by the applicant for grant of
receivership is insufficient (Sec. 5); or
4. Bond of the receiver is insufficient (Sec. 5).
Q: Can receivership be allowed if theres a notice
of lis pendens?
A: VIVARES vs. REYES, February 13, 2008 the
appointment of a receiver is not proper where the
rights of the parties, one of whom is in possession
of the property, are still to be determined by the
trial court.
Section 4. Oath and bond of receiver.
Before entering upon his duties, the
receiver shall be sworn to perform them
faithfully, and shall file a bond, executed
to such person and in such sum as the
court may direct, to the efect that he
will faithfully discharge his duties in the
action or proceeding and obey the
orders of the court.
CITIBANK NA vs. CA, March 17, 1999 the
receiver must be required to take an oath
pursuant to this section before being allowed to
assume receivership.
Section 5. Service of copies of bonds;
effect of disapproval of same. The
person filing a bond in accordance with
the provisions of this Rule shall
forthwith serve a copy thereof on each
interested party, who may except to its
sufficiency or of the surety or sureties
thereon. If either the applicants or the
receivers
bond
is
found
to
be
insufficient in amount, or if the surety or
sureties thereon fail to justify, and a
bond sufficient in amount with sufficient
not filed forthwith, the application shall
be denied or the receiver discharged, as
the case may be. If the bond of the
adverse party is found to be insufficient
in amount or the surety or sureties
thereon fail to justify, and a bond
sufficient in amount with sufficient
not filed forthwith, the receiver shall be
appointed or re-appointed, as the case
may be.
Section 6. General powers of receiver.
Subject to the control of the court in
which the action or proceeding is
pending, a receiver shall have the power

to bring and defend, in such capacity,
actions in his own name; to take and
keep possession of the property in
controversy; to receive rents; to collect
debts due to himself as receiver or to
the fund, property, estate, person, or
corporation of which he is the receiver;
to compound for and compromise the
same; to make transfers; to pay
outstanding debts; to divide the money
and other property that shall remain
among the persons legally entitled to
receive the same; and generally to do
such acts respecting the property as the
court may authorize. However, funds in
the hands of a receiver may be invested
only by order of the court upon the
written consent of all the parties to the
action.
No action may be filed by or against a
receiver without leave of the court which
appointed him.
Powers of the Receiver Includes: (BTRC 2
MPD2I)
1. Bring and defend, in such capacity, actions in
his own name;
2. Take and keep possession of the property in
controversy;
3. Receive rents;
4. Collect debts due to himself as receiver or to
the fund, property, estate, person, or
corporation of which he is the receiver;
5. Compound for and compromise the same;
6. Make transfers;
7. Pay outstanding debts;
8. Divide the money and other property that
shall remain among the persons legally
entitled to receive the same;
9. Generally to Do such acts respecting the
property as the court may authorize; and
10. Invest funds in his hands, only by order of the
court upon the written consent of all the
parties.
No action may be brought by or against a

receiver without leave of the court which
appointed him.
Section 7. Liability for refusal or neglect

to deliver property to receiver. A
person who refuses or neglects, upon
reasonable demand, to deliver to the
receiver all the property, money, books,
deeds, notes, bills, documents and
papers within his power or control,
subject of or involved in the action or
proceeding, or in case of disagreement,
as determined and ordered by the court,
may be punished for contempt and shall
be liable to the receiver for the money or
the value of the property and other
things so refused or neglected to be
surrendered, together with all damages
that may have been sustained by the
party or parties entitled thereto as a
consequence of such refusal or neglect.
Sources:
A person who refuses or neglects to deliver a

property, within his control and which is the
subject of the action, to the receiver may be
punished for CONTEMPT and liable to the receiver
for the money or the value of the property plus
DAMAGES.
The receiver shall also file a bond before entering
upon his duties separate from the bond filed by
the applicant. The bond shall be liable if the
damages sustained were due to the receivers
malfeasance.
Section 8. Termination of receivership;
compensation of receiver. Whenever
the court, motu proprio or on motion of
either party, shall determine that the
necessity for a receiver no longer exists,
it shall, after due notice to all interested
parties and hearing, settle the accounts
of the receiver, direct the delivery of the
funds
and other property in his
possession to the person adjudged to be
entitled to receive them, and order the
discharge of the receiver from further
duty as such. The court shall allow the
receiver such reasonable compensation
as the circumstances of the case
warrant, to be taxed as costs against the
defeated party, or apportioned, as
justice requires.
TRADERS ROYAL BANK vs. IAC, June 17, 1997 when the services of a receiver who has been
properly appointed terminates, his compensation
is to be charged against the defeated party, or
the prevailing litigant may be made to share the
expense, as justice requires. Consequently, the
trial
court's
order
approving
receivers
compensation
to
be charged solely against
the funds under its receivership is without legal
justification.
Section 9. Judgment to include recovery
against sureties. The amount, if any, to
be awarded to any party upon any bond
filed in accordance with the provisions of
this Rule, shall be claimed, ascertained,
and granted under the same procedure
prescribed in section 20 of Rule 57.
Note: Where the damages sustained were not
by reason of the appointment of the receiver but
to his own malfeasance, the recovery shall be
against the receivers bond and may be
recovered in a separate action (De la Rosa & Co.
vs. De Borja, G.R. No. L-28611, January 30, 1929)
RULE 60
REPLEVIN
Replevin Defined
SUPERLINES TRANSPORTATION CO. vs. PNCC,
March 28, 2007 - The term replevin is popularly
understood as the return to or recovery by a
person of goods or chattels claimed to be

wrongfully taken or detained upon the persons
giving security to try the matter in court and
return the goods if defeated in the action; the
writ by or the common-law action in which goods
and chattels are replevied, i.e., taken or gotten
back by a writ for replevin; and to replevy,
means to recover possession by an action of
replevin; to take possession of goods or chattels
under a replevin order. Bouviers Law Dictionary
defines replevin as a form of action which
lies to regain the possession of personal
chattels which have been taken from the
plaintif unlawfully x x x, (or as) the writ by
virtue of which the sheriff proceeds at once to
take possession of the property therein described
and transfer it to the plaintiff upon his giving
pledges which are satisfactory to the sheriff to
prove his title, or return the chattels taken if he
fail so to do; the same authority states that the
term, to replevy means to re-deliver goods
which have been distrained to the original
possessor of them, on his giving pledges in an
action of replevin. The term therefore may
refer either to the action itself, for the
recovery of personality, or the provisional
remedy traditionally associated with it, by
which possession of the property may be
obtain[ed] by the plaintif and retained
during the pendency of the action. (Emphasis and
underscoring supplied; citations omitted)
In a complaint for replevin, the claimant must

convincingly show that he is either the owner or
clearly entitled to the possession of the object
sought to be recovered, and that the defendant,
who is in actual or legal possession thereof,
wrongfully detains the same.
Nature of the Proceedings
SMART COMMUNICATIONS INC. vs. ASTORGA,
January 29, 2008 - Replevin is designed to permit
one having right to possession to recover
property in specie from one who has wrongfully
taken or detained the property. The term may
refer either to the action itself, for the recovery of
personalty, or to the provisional remedy
traditionally associated with it, by which
possession of the property may be obtained by
the plaintiff and retained during the pendency of
the action. Replevin is a possessory action, the
gist of which is the right of possession in the
plaintiff.
PCI LEASING INC. vs. DAI, September 21, 2007
- Replevin is so usually described as a mixed
action,
being
partly in rem and
partly in personam
in rem insofar
as
the
recovery of specific property is concerned,
and in personam as
regards
to
damages
involved. As an action in rem, the gist of
the replevin action is the right of the plaintiff to
obtain possession of specific personal property by
reason of his being the owner or of his having a
special interest therein.
Petitioners
complaint
for replevin was
doubtless a mixed action in rem with respect to
its prayer for the recovery of the vessel,
and in personam with respect to its claim for
Sources:
damages. And it was, with respect to its

alternative prayer, clearly one in personam.
Following paragraph (b) of Section 49, Rule 39
of the 1964 Rules of Court, now 47 of Rule 39 of
the present Rules, petitioners second complaint
is unquestionably barred by res judicata.
RIVERA vs. VARGAS, June 5, 2009 - replevin is
both a form of principal remedy and of
provisional relief. It may refer either to the
action itself, i.e., to regain the possession of
personal chattels being wrongfully detained from
the plaintiff by another, or to the provisional
remedy that would allow the plaintiff to retain the
thing during the pendency of the action and to
hold it pendente lite. The action is primarily
possessory in nature and generally determines
nothing more than the right of possession.
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.
A writ of replevin must be applied for at the
commencement of the action or at any time
before the defendant files his answer, for which
reason there can be no replevin before the
appellate courts.
Writ of Replevin
May be sought only when the
principal action is recovery of
personal property.
Can be sought only when
defendant is in actual
possession of the property.
Cannot be availed of when
property is in custodia legis.
Available before defendant
answers.
Bond is double the value of
the property.
Writ of Preliminary
Attachment
Available even if recovery of
property is only incidental to
the relief sought.
May be resorted to even if the
property is in possession of a
third person.
Can be availed of even if
property is in custodia legis.
Available
from
commencement but before
entry of judgment.
Bond is fixed by the court.
Note: There can be no replevin and preliminary

attachment in the same case because the
purposes are different. In Rule 57, it is for
security. In Rule 60, it is for recovery of
possession.
Jurisdiction
ASIAN TERMINALS, INC. vs. RICAFORT, October
27, 2006 - Under the Customs and Tarriff Code,
the Collector of Customs sitting in seizure and
forfeiture
proceedings
had
the
exclusive
jurisdiction to hear and determine all questions
relating on the seizure and forfeiture of dutiable
goods. The RTC had no review powers over such
proceedings; it is the Court of Tax Appeals under
RA No. 1125.
Section 2. Affidavit and bond. The

applicant must show by his own affidavit
or that of some other person who
personally knows 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
knowledge,
information, and belief;
(c) That the property has not been
distrained or taken for a tax assessment
or a fine pursuant to law, or seized under
a writ of execution or preliminary
attachment, or otherwise placed under
custodia legis, or if so seized, that it is
exempt from such seizure or custody;
and
(d) The actual market value of the
property.
The applicant must also give a bond,
executed to the adverse party in double
the value of the property as stated in
the affidavit aforementioned, for the
return of the property to the adverse
party if such return be adjudged, and for
the payment to the adverse party of
such sum as he may recover from the
applicant in the action.
Procedure for the application for Replevin:
1. File an application at the commencement of
the action or at anytime before defendant
answers.
2. Application must contain an affidavit.
The affidavit MUST SHOW that:
b. Applicant is the owner of the property
claimed, particularly describing it, or is
entitled to the possession thereof;
c. Property is wrongfully detained by the
adverse party;
d. Property has not been distrained or taken
for tax assessment or a fine pursuant to
law, or seized under a writ of execution or
under custodia legis; and
e. Actual market value of the property.
3. Applicant must give a bond, executed to the
adverse party and double the value of the
property.
Cases:
CITIBANK NA vs. CA, March 17, 1999 - There is
substantial compliance with the rule requiring
that an affidavit of merit to support the complaint
for replevin if the complaint itself contains a
statement of every fact required to be stated in
the affidavit of merit and the complaint is verified
like an affidavit.
The affidavit or complaint must, however,
state that the subject properties were not taken
by virtue of a tax assessment or fine imposed
pursuant to law or seized under execution or
Sources:
attachment or, if they were so seized, that they

are exempt from such seizure.
Pertinent rules require that the affidavit of
merit should state the actual value of the
property subject of a replevin suit and not just
its probable value. Actual value (or actual
market value) means the price which an article
would command in the ordinary course of
business, that is to say, when offered for sale by
one willing to sell, but not under compulsion to
sell, and purchased by another who is willing to
buy, but under no obligation to purchase it.
Petitioners assertion is belied by the fact that
upon taking possession of the aforesaid
properties, it insured the same for P610,593.74
and P450,000.00, separately. It bears stressing
that the actual value of the properties subject of
a replevin is required to be stated in the affidavit
because such actual value will be the basis of the
replevin bond required to be posted by the
plaintiff. Therefore, when the petitioner failed to
declare the actual value of the machineries and
equipment subject of the replevin suit, there was
non-compliance with Section 2, Rule 60 of the
Revised Rules of Court.
SERVICEWIDE
SPECIALISTS,
INC.
vs.
CA,
November 19, 1999 Rule 60 of the Revised Rules of Court requires
that an applicant for replevin must show that he
is the owner of the property claimed, particularly
describing it, or is entitled to the possession
thereof. Where the right of the plaintiff to the
possession of the specified property is so
conceded or evident, the action need only be
maintained against him who so possesses the
property.
In default of the mortgagor, the mortgagee is
thereby constituted as attorney-in-fact of the
mortgagor, enabling such mortgagee to act for
and in behalf of the owner. That the defendant is
not privy to the chattel mortgage should be
inconsequential. By the fact that the object of
replevin is traced to his possession, one properly
can be a defendant in an action for replevin. It is
here assumed that the plaintiffs right to possess
the thing is not or cannot be disputed.
TWIN ACE HOLDINGS CORP. vs. RUFINA & CO.,
June 8, 2006 Wrongful detention by the
defendant of the properties sought in an action
for replevin must be satisfactorily established. If
only a mechanistic averment thereof is offered,
the writ should not be issued. In this case, Twin
Ace has not shown that it is entitled to the
possession of the bottles in question and
consequently there is thus no basis for the
demand by it of due compensation.
PAAT vs. CA, January 10, 1997 - To detain is
defined as to mean to hold or keep in custody,
and it has been held that there is tortuous taking
whenever there is an unlawful meddling with the
property, or an exercise or claim of dominion over
it, without any pretense of authority or right; this,
without manual seizing of the property is
sufficient.
The suit for replevin is never intended as a

procedural tool to question the orders of
confiscation and forfeiture issued by the DENR in
pursuance to the authority given under P.D.705,
as amended. Courts may not review the decisions
of the Secretary except through a special civil
action for certiorari or prohibition.
FACTORAN vs. CA, December 13, 1999 - A writ of
replevin does not just issue as a matter of course
upon the applicants filing of a bond and
affidavit. The mere filing of an affidavit, sans
allegations therein that satisfy the requirements
of Sec. 2, Rule 60, cannot justify the issuance of a
writ of replevin.
As the petitioner Secretarys administrative
authority to confiscate is clearly provided by law,
the taking of the subject properties is not
wrongful and does not warrant the issuance of a
writ of replevin prayed for by private
respondents.
Issuance of the confiscation order by
petitioner Secretary was a valid exercise of his
power under Sec. 68-A of P.D. No. 705. By virtue
of said order, the narra lumber and six-wheeler
truck of private respondents were held in
custodia legis and hence, beyond the reach of
replevin.
Property lawfully taken by virtue of legal
process is deemed to be in custodia
legis. When a thing is in official custody of a
judicial or executive officer in pursuance of his
execution of a legal writ, replevin will not lie to
recover it. Otherwise, there would be interference
with the possession before the function of law
had been performed as to the process under
which the property was taken.
SUPERLINES vs. PNCC, supra., - It is true that
property held as evidence in a criminal case
cannot be replevied. But the rule applies only
where the property is lawfully held, that is, seized
in accordance with the rule against warrantless
searches
and
seizures
or
its
accepted
exceptions. Property subject of litigation is not by
that fact alone in custodia legis. As the Court
said in Tamisin v. Odejar, A thing is
in custodia legis when it is shown that it
has been and is subjected to the official
custody of a judicial executive officer in
pursuance of his execution of a legal
writ. Only when property is lawfully taken
by virtue of legal process is it considered in
the custody of the law, and not otherwise.
Section 3. Order. Upon the filing of
such affidavit 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 requiring
the sherif forthwith to take such
property into his custody.
SERGS PRODUCTS, INC. vs. PCI LEASING, August
22, 2000 - After agreeing to a contract stipulating
that a real or immovable property be considered
as personal or movable, a party is estopped from
Sources:
subsequently claiming otherwise. Hence, such

property is a proper subject of a writ of replevin
obtained by the other contracting party.
Section 4. Duty of the sheriff. Upon
receiving such order, the sherif must
serve a copy thereof on the adverse
party, together with a copy of the
application, affidavit and bond, and must
forthwith take the property, if it be in
the possession of the adverse party, or
his agent, and retain it in his custody. If
the property or any part thereof be
concealed in a building or enclosure, the
sherif must demand its delivery, and if
it be not delivered, he must cause the
building or enclosure to be broken open
and
take
the
property
into
his
possession. After the sherif has taken
possession of the property as herein
provided, he must keep it in a secure
place and shall be responsible for its
delivery to the party entitled thereto
upon receiving his fees and necessary
expenses for taking and keeping the
same.
RIVERA vs. VARGAS, June 5, 2009 - The process
regarding the execution of the writ of replevin in
Section 4 of Rule 60 is unambiguous: the sheriff,
upon receipt of the writ of replevin and prior to
the taking of the property, must serve a copy
thereof to the adverse party (petitioner, in this
case) together with the application, the affidavit
of merit, and the replevin bond. The reasons are
simple, i.e., to provide proper notice to the
adverse party that his property is being seized in
accordance with the courts order upon
application by the other party, and ultimately to
allow the adverse party to take the proper
remedy consequent thereto.
Service of the writ upon the adverse party is
mandatory in line with the constitutional
guaranty on procedural due process and as
safeguard against unreasonable searches and
seizures.
TORRES vs. CABESUELA, September 28, 2001 Respondent's act of implementing the writ in
Nueva Ecija when his territorial jurisdiction is
confined only to Manila is a clear violation of the
law. The proper recourse would have been to
seek the assistance of the sheriff of Nueva Ecija
rather than deputizing the police officer of said
place.
GOMEZ vs. CONCEPCION, May 9, 2000 A sheriff
is clearly remiss in the performance of his
assigned task in parking a vehicle in his custody
in front of his residence instead of having it
stored in a secure place.
HAO vs. ANDRES, June 18, 2008 - the property
seized should not be immediately delivered to the
plaintiff, and the sheriff must retain custody of
the seized property for at least five days.
Hence, the act of Andres (sheriff) in delivering the
seized vehicles immediately after seizure to Silver
for whatever purpose, without observing the fiveday requirement finds no legal justification.
Section 5. Return of property. If the
adverse party objects to the sufficiency
of the applicants bond, or of the surety
or
sureties
thereon,
he
cannot
immediately require the return of the
property, but if he does not so object, he
may, at any time before the delivery of
the property to the applicant, require
the return thereof, by filing with the
court where the action is pending a bond
executed to the applicant, in double the
value of the property as stated in the
applicants affidavit for the delivery
thereof to the applicant, if such delivery
be adjudged, 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.
CITIBANK NA vs. CA, supra. - the remedies
provided under Section 5, Rule 60, are alternative
remedies. This course of action is available to the
defendant for as long as he does not object to the
sufficiency of the plaintiffs bond.
Conformably, a defendant in a replevin suit
may demand the return of possession of the
property replevined by filing a redelivery bond
executed to the plaintiff in double the value of the
property as stated in the plaintiffs affidavit within
the period specified in Sections 5 and 6.
Alternatively, the defendant may object to
the sufficiency of the plaintiffs bond, or of the
surety or sureties thereon; but if he does so, he
cannot require the return of the property by
posting a counter-bond pursuant to Sections 5
and 6.
BAUTISTA vs. SULA, August 17, 2007 - If a
defendant in a replevin action wishes to have the
property taken by the sheriff restored to him, he
should within five days from such taking, (1) post
a counter-bond in double the value of said
property, and (2) serve plaintiff with a copy
thereof, both requirements as well as
compliance therewith within the five-day period
mentioned being mandatory.
The prerogatives of sheriffs do not include the
discretion to determine who among the parties is
entitled to the possession of the property. Even
when placed in a difficult situation, they are not
called to exercise their own discretion.
Q: If there is no proper service, what remedy is
available to petitioner?
RIVERA vs. VARGAS, June 5, 2009 - petitioners
proper remedy should have been to file a motion
to quash the writ of replevin or a motion to
vacate the order of seizure. Nevertheless,
petitioners filing of an application for a redelivery
bond, while not necessary, did not thereby waive
her right to question the improper service. It now
becomes imperative for the trial court to restore
the parties to their former positions by returning
Sources:
the seized property to petitioner and by

discharging
the
replevin
bond
filed
by
respondent. The trial, with respect to the main
action, shall continue. Respondent may, however,
file a new application for replevin should he
choose to do so.
Section 6. Disposition of property by
sheriff. If within five (5) days after the
taking of the property by the sherif, the
adverse party does not object to the
sufficiency of the bond, or of the surety
or sureties thereon; or if the adverse
party so objects and the court affirms its
approval of the applicants bond or
approves a new bond, or if the adverse
party requires the return of the property
but his bond is objected to and found
insufficient and he does not forthwith
file an approved bond, the property shall
be delivered to the applicant. If for any
reason the property is not delivered to
the applicant, the sherif must return it
to the adverse party.
The sheriff shall retain the property for 5 days.
Within such period, the adverse party may object
to the sufficiency of the applicants bond or
surety or he may file a redelivery bond.
After 5 days and the adverse party failed to
object or his redelivery bond is insufficient, the
sheriff shall deliver the property to the applicant.
DEFENDANT is ENTITLED to the return of
the property under a Writ of Replevin:
1. Seasonably posts a redelivery bond;
2. Plaintiffs
bond
is
found
to
be
insufficient or defective and is not
replaced with proper bond; or
3. Property is not delivered to the plaintiff
for any reason.
CITIBANK NA vs. CA, supra - In the case under
consideration, the private respondent did not opt
to cause redelivery of the properties to him by
filing a counter-bond precisely because he
objected to the sufficiency of the bond posted
byx plaintiff. Therefore, he need not file a
counter-bond or redelivery bond. When such
objection was not given due course in the court
below - when, instead of requiring the plaintiff to
post a new bond, the court approved the bond
claimed by respondent to be insufficient, and
ordered the seizure of the properties - recourse to
a petition for certiorari before the Court of
Appeals assailing such order is proper under the
circumstances.
BAUTISTA vs. SULA, supra - The purpose of the
five-day period in Section 6 is to give defendants
in a replevin case a chance to require the return
of the property by filing a counter-bond.
ADOMA vs. GATCHECO, January 17, 2005 respondent sheriff deliberately failed to place
complainant in possession of the vehicle after five
days from the implementation of the writ because
the latter failed to give the whole amount he

promised. Since the adverse party did not object
to the complainants bond nor posted a redelivery
bond to recover possession of the vehicle taken
under the writ of replevin, respondent sheriff is
under obligation to deliver the van to
complainant. However, it took respondent sheriff
13 days before he released the vehicle to
complainant, a clear violation of Section 6, Rule
60.
Section 7. Proceedings where property
claimed by third person. If the property
taken is claimed by any person other
than the party against whom the writ of
replevin had been issued or his agent,
and such person makes an affidavit of
his title thereto, or right to the
possession thereof, stating the grounds
therefore, and serves such affidavit upon
the
sherif
while
the
latter
has
possession of the property and a copy
thereof upon the applicant, the sherif
shall not be bound to keep the property
under replevin or deliver it to the
applicant unless the applicant or his
agent, on demand of said sherif, shall
file 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.
In
case
of
disagreement as to such value, the court
shall determine the same. No claim for
damages for the taking or keeping of the
property may be enforced against the
bond unless the action therefore is filed
within one hundred twenty (120) days
from the date of the filing of the bond.
The sherif shall not be liable for
damages, for the taking or keeping of
such property, to any such third-party
claimant if such bond shall be filed.
Nothing 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 filed a frivolous or plainly spurious
claim, in the same or a separate action.
When the writ of replevin is issued in
favor of the Republic of the Philippines,
or any officer duly representing it, the
filing of such bond shall not be required,
and in case the sherif is sued for
damages as a result of the replevin, he
shall be represented by the Solicitor
General, and if held liable therefore, the
actual damages adjudged by the court
shall be paid by the National Treasurer
out of the funds to be appropriated for
the purpose.
Similar as in third-party claims in execution and in
attachment. (Principle of Terceria)
Sources:
Note: In Section 14 of Rule 57, the affidavit is

served upon the sheriff while he has possession
of the attached property. In Section 7 of Rule 60,
the affidavit is served WITHIN THE 5 DAYS THE
SHERIFF HAS POSSESSION, in connection with
Section 6.
Section 8. Return of papers. The sherif
must file the order, with his proceedings
indorsed thereon, with the court within
ten (10) days after taking the property
mentioned therein.
Section 9. Judgment. 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
judgment in the alternative for the
delivery thereof to the party entitled to
the same, or for its value in case
delivery cannot be made, and also for
such damages as either party may
prove, with costs.
ALLANDALE SPORTSLINE vs. THE GOOD DEVT
CORP., December 18, 2008 the effect of the
election by respondent of the remedy of extrajudicial foreclosure is the inapplicability of Section
9, Rule 60.
Section
10.
Judgment
to
include
recovery against sureties. The amount,
if any, to be awarded to any party upon
any bond filed in accordance with the
provisions of this Rule, shall be claimed,
ascertained, and granted under the
same procedure as prescribed in section
20 of Rule 57.
Plaintiff who obtains possession of the personal
property by a writ of replevin DOES NOT ACQUIRE
absolute title thereto, nor does the defendant
acquire such title by re-bonding the property, as
they only hold the property subject to the final
judgment in the action.
Suretys liability under the replevin bond should
be included in the final judgment to prevent
duplicity of suits or proceedings.
Provisions of Section 20 of Rule 57 are

applicable not only to the replevin bond of the
plaintiff but also to the redelivery bond posted
by the defendant for the lifting of the writ.
Note: The judgment may be in the ALTERNATIVE,

i.e., for the delivery of the property to the party
entitled to it, or for the value of the property in
case the same cannot be delivered plus
damages.
REPLEVIN BOND is simply intended to indemnify
the defendant against loss that he may suffer by
being compelled to surrender the possession of
the disputed property pending trial of the action.
Note:
A writ of replevin may be served
anywhere in the Philippines.

RULE 61
SUPPORT PENDENTE LITE
Definition
Support Pendente Lite is an amount of support
provisionally fixed by the court in favor of the
person or persons entitled thereto during the
pendency of an action for support.
Support
pendente
lite
is an
amount
adjudicated by the trial court during the
pendency of an action for support upon
application by the plaintiff at the commencement
of the proper action or at any time afterwards. It
is a remedy recognized by the Revised Rules of
Court and classified as a provisional remedy
rendered by the court as equity and justice may
require (117 SCRA 929, Fundamentals of Support
Pendente Lite).
Note: Under Section 4 of Rule 39, the judgment
in an action for support is immediately executory.
Where filed:
Family Court.
It is exclusively cognizable by a
Except:
In criminal actions, where right to
support arises by reason of crime and as long as
the civil aspect is tried together with it, the RTC
and MTC having jurisdiction may also issue this
remedy.
Section
1.
Application.
At
the
commencement of the proper action or
proceeding, or at any time prior to the
judgment or final order, a verified
application for support pendente lite
may be filed by any party stating the
grounds for the claim and the financial
conditions
of
both
parties,
and
accompanied by affidavits, depositions
or other authentic documents in support
thereof.
Sources:
the fact of marriage, because the right of a wife

to support depends upon her status as such, and
where the existence of such status is put in issue
by the pleading, it cannot be presumed to exist
for the purpose of granting alimony.
SAN JUAN vs. VALENZUELA, October 23, 1982 the petitioner's willingness to pay the amount of
support pendent lite in the manner indicated in
his manifestation, and the approval thereof by
the respondent Judge have rendered this petition
moot and academic.
The amount of support pendente lite is not
final in character in the sense that it can be the
subject of modification, depending on the
changing conditions affecting the ability of the
obligor to pay the amount fixed for support.
RAMOS vs. CA, June 30, 1972 Giving of support
pendente lite lies within the discretion of the trial
court to direct the father to give support pending
the appeal.
If before the rendition of judgment, the trial
court may "provisionally" grant alimony pendente
lite, with more reason may an appellate court
exercise a similar authority, after a full dress trial
and a decision of the trial court on the merits
finding that the claim of filiation and support has
been adequately proven in the case at bar,
beyond doubt even if such decision were still
pending appeal taken by the party adjudged to
be bound to give such support.
An appellate court may grant alimony
pendente lite even if the trial court refused to
grant the same.
Note: Where the right to support is put in issue

by the pleading or the fact from which the right is
in controversy or has not been established, the
court cannot grant support pendente lite
(Francisco vs. Zandueta, G.R. No. L-43794,
August 9, 1935)
VASCO vs. CA, February 28, 1978 But if appeal

is already perfected the trial court loses
jurisdiction to issue execution of judgment for
support. It has no jurisdiction because after the
perfection of the appeal, the trial court loses its
jurisdiction over the case, EXCEPT to issue
orders for the protection and preservation
of the rights of the parties which do not
involve any matter litigated by the appeal,
to approve compromise offered by the
parties prior to the transmittal of the
record on appeal to the appellate court, and
to permit the prosecution of paupers
appeals.
An order for execution pending appeal does
not fall within the said exceptions because it is a
proceeding involving the very matter litigated by
the appeal. x x x Before the rendition of
judgment, the plaintiffs could have availed
themselves in the lower court of the provisional
remedy of support pendente lite. They did not do
so. On the other hand, the general rule is that an
appeal stays the execution of the judgment.
Parens patriae doctrine is applicable to
recipients of support who are non sui juris but not
to those who are no longer minors.
COQUIA vs. BALTAZAR, supra. - Even in an action

for divorce and alimony, it has been held that the
court has no jurisdiction to grant alimony
pendente lite where the answer to the complaint
alleging marriage and praying for divorce denies
Section 2. Comment. A copy of the

application
and
all
supporting
documents shall be served upon the
adverse party, who shall have five (5)
days to comment thereon unless a
Application
At the commencement of the action or at any
time before judgment or final order.
This provisional remedy is available ONLY in
an Action for Support, or where one of the
reliefs sought is Support for the Applicant
(Coquia vs. Baltazar, G.R. No. L-2942,
December 29, 1949).

diferent period is fixed by the court

upon his motion. The comment shall be
verified and shall be accompanied by
affidavits, depositions or other authentic
documents in support thereof.
Q: When shall a court issue an order to submit
comment?
A: Upon adverse partys motion.
Section 3. Hearing. After the comment
is filed, or after the expiration of the
period for its filing, the application shall
be set for hearing not more than three
(3) days thereafter. The facts in issue
shall be proved in the same manner as is
provided for evidence on motions.
Defenses against support pendente lite
Adultery as Valid Defense
RAMOS vs. CA, supra. - the Court of Appeals
erred in not allowing the defendant to present his
evidence for the purpose of determining whether
it is sufficient prima facie to overcome the
application. Adultery on the part of the wife is a
valid defense against an action for support.
Consequently, as to the child, it is also a defense
that it is the fruit of such adulterous relations, for
in that case, it would not be the child of the
defendant and, hence would not be entitled to
support as such. But as this defense should be
established, and not merely alleged, it would be
unavailing if proof thereof is not permitted. It is
not of course necessary to go fully into merits of
the case, it being sufficient that the court
ascertain the kind of amount of evidence which it
may deem sufficient to enable it to justly resolve
the application, one way or take other, in view of
the merely provisional character of take
resolution to be entered.
Denial of Paternity
A denial of the relationship from which the
obligation to give support arises will be
considered as valid defense against an action for
support.
FRANCISCO vs. ZANDUETA, August 9, 1935 The
civil status of sonship being denied and this civil
status, from which the right to support is derived,
being in issue, it is apparent that no effect can be
given to such a claim until an authoritative
declaration has been made as to the existence of
the cause.
Non-existence of Marriage
Since the obligation to give support arises from
the relationship of spouses, the absence of such
relationship would therefore defeat any claim for
support.
It should be remembered that merely asserting
the invalidity of a marriage may not be a defense
against a support pendente lite because until
marriage is invalidated it will subsists.
Death of Recipient
Sources:
Under the law, the obligation to give support shall

cease upon the death of the recipient.
Improper Conduct of the Person Seeking Support
Two instances of improper conduct which would
extinguish the obligation to give support:
1. When the recipient, be he a forced heir or not,
has committed some act which gives rise to
disinheritance; and
2. When the recipient is a descendant, brother
or sister of the obligor and the need for
support is caused by his/her bad conduct or
by the lack of application to work, so long as
this cause subsists.
Section 4. Order. The court shall
determine provisionally the pertinent
facts, and shall render such orders as
justice and equity may require, having
due regard to the probable outcome of
the case and such other circumstances
as may aid in the proper resolution of
the question involved. If the application
is granted, the court shall fix the amount
of money to be provisionally paid or such
other forms of support as should be
provided, taking into account the
necessities of the applicant and the
resources or means of the adverse party,
and the terms of payment or mode for
providing the support. If the application
is denied, the principal case shall be
tried and decided as early as possible.
Note:
Includes other forms of support,
meaning medical attendance, housing, clothing,
education, etc.
MANGONON vs. CA, June 30, 2006 a court may
temporarily grant support pendente lite
prior to the rendition of judgment or final
order. Because of its provisional nature, a
court does not need to delve fully into the
merits of the case before it can settle an
application for this relief. All that a court is
tasked to do is determine the kind and amount of
evidence which may suffice to enable it to justly
resolve the application. It is enough that the facts
be established by affidavits or other documentary
evidence appearing in the record.
Section 5. Enforcement of order. If the
adverse party fails to comply with an
order granting support pendente lite,
the court shall, motu proprio or upon
motion, issue an order of execution
against him, without prejudice to his
liability for contempt.
When the person ordered to give
support pendente lite refuses or fails to
do so, any third person who furnished
that support to the applicant may, after
due notice and hearing in the same case,
obtain a writ of execution to enforce his
right of reimbursement against the
person ordered to provide such support.
Failure to comply with an order granting support

pendente lite may warrant:
the issuance of an ORDER OF EXECUTION
against the non-complying party; and
may likewise make him liable for contempt.
Note: Support pendente lite is INTERLOCUTORY,
thus, the same may be modified at any stage of
the proceedings.
As it is non-appealable, the remedy therefore
is an original action for certiorari to annul the
order of denial.
Sources:
amounts already paid with legal interest

from the dates of actual payment,
without prejudice to the right of the
recipient to obtain reimbursement in a
separate action from the person legally
obliged to give the support. Should the
recipient fail to reimburse said amounts,
the person who provided through same
may
likewise
seek
reimbursement
thereof in a separate action from the
person legally obliged to give such
support.
MANGONON vs. CA, supra. The obligation to

give support rests principally on those more
closely related to the recipient. However, the
more remote relatives may be held to shoulder
the responsibility should the claimant prove that
those who are called upon to provide support do
not have the means to do so.
Respondent Francisco could not avail himself
of the second option provided under Art. 204 of
the Family Code receiving and maintaining in
the family dwelling the person who has a right to
receive support in view of the filing of this case,
and the allegations hurled at one another by the
parties, the relationships among the parties had
certainly been affected, and particularly difficult
for Rica and Rina must be the fact that those who
they had considered and claimed as family
denied having any familial relationship with them.
Remedies of party who was erroneously

compelled to give support:
1. Apply for an order for such reimbursement by
the recipient on motion in the trial court in
the same case, unless such restitution is
already included in the judgment; or
2. Failing therein, file a separate action for
reimbursement against the person legally
obliged to give support.
Q: Can a court grant support in arrears?

A: MANGONON vs. CA, supra. - Considering,
however, that the twin sisters may have already
been done with their education by the time of the
promulgation of this decision, we deem it proper
to award support pendente lite in arrears to be
computed from the time they entered college
until they had finished their respective studies.
Distinguish Rule 61 from all the rest of

Provisional Remedies
1. No bond that will answer for erroneous grant ;
2. The comment of the defendant is required
prior to the grant;
3. Application is verified
Section 6. Support in criminal cases. In

criminal actions where the civil liability
includes support for the ofspring as a
consequence of the crime and the civil
aspect thereof has not been waived,
reserved or instituted prior to its filing,
the accused may be ordered to provide
support pendente lite to the child born
to the ofended party allegedly because
of the crime. The application therefore
may be filed successively by the
ofended
party,
her
parents,
grandparents or guardian and the State
in the corresponding criminal case
during its pendency, in accordance with
the procedure established under this
Rule.
Art. 345 RPC, in crimes against chastity, (3) In
every case to support the offspring.
Section 7. Restitution. When the
judgment or final order of the court finds
that the person who has been providing
support pendente lite is not liable
therefore, it shall order the recipient
thereof to return to the former the
Note: See Matrix on provisional remedies for

more detailed information
MANGONON vs. CA, supra. In case it would be
resolved that the recipients are not entitled to
support pendente lite, they shall return the
amounts already paid with legal interest from the
dates of actual payment.
Support is a matter of life and death; more

urgent for it has something to do with the
continued survival.

Prov Rem Reviewer-Final

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PROVISIONAL REMEDIES

2010 San Beda Memory Aid,

Inferior courts can grant all appropriate

Gene Geocaniga, Cherry Lynn Trinidad

Preliminary attachment is a provisional

of to prevent its being found by the applicant

GENERAL vs. DE VENECIA, 78 Phil. 780 - On the

CALO vs. ROLDAN, 76 Phil. 445 - ATTACHMENT

INSULAR SAVINGS BANK vs. CA, 460 SCRA 122

4. In actions against a person Guilty of fraud in

PEOPLES BANK & TRUST CO. vs. SYVELS INC.,

Jurisprudence so holds that the foreign or

commission of fraud by the person against whom

Court of Appeals or the Supreme Court,

attachment, service of summons should be

writ totally defective as the judge issuing it acts

SALAS vs. ADIL, 90 SCRA 121 - A preliminary

Ratio: No notice to the adverse party or hearing

xxx but they may be issued when the plaintif's

TING vs. VILLARIN, 176 SCRA 532 - The complaint

Contents of the Affidavit

this purpose and in denying the petition for

attachment wrongfully issued, the surety is liable

BUT prior or contemporaneous service of

summons and the writ, there might not be any

either the Land Registration Act or the

What may be the subject of attachment:

Property legally attached is property in

Principle of Seniority of Liens

as such did not have the effect of binding the

officer cannot even deliver the property to

ELIPE vs. FABRE, 241 SCRA 249 Indeed, as

ROQUE vs. COURT OF APPEALS, 93 SCRA 540

or her superior. He/she is in effect an extension of

TAYABAS LAND CO. vs. SHARRUF, 41 PHIL. 382

upon them of the copy of the writ of

Gene Geocaniga, Cherry Lynn Trinidad

c. The property attached is exempt from

depends on contingencies, its existence is in no

Executive Orders Re Sequestration, Freezing and

the order made upon such petition,

In case the property attached is perishable in

If the garnishee does not admit the indebtedness

Section 12. Discharge of attachment

Section 11. When attached property may

THE MANILA REMNANT CO. vs. CA, 231 SCRA 281

Note: The examination in Rule 39 is proper only

Gene Geocaniga, Cherry Lynn Trinidad

d. The judgment is rendered against the

SECURITY PACIFIC ASSURANCE vs. TRIA-INFANTE,

CALDERON vs. IAC, 155 SCRA 531 While

stated in his affidavit, or some of them, are

4. Attachment is Excessive, but the discharge

Objections against the writ may no longer

dissolution could force a trial on the merits of the

utterly failed to even give a hint about what

Section 14. Proceedings where property

cannot pass upon the question of the title to the

Gene Geocaniga, Cherry Lynn Trinidad

4. Return must be made within 10 days from

construed as requiring that an execution against

application to be heard and decided by