Professional Documents
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PROVISIONAL REMEDIES
We are now on provisional remedies from Rule 57 - 61. So there are 5 provisional
remedies. Just remember the word AIRRS.
But if you are asked, don't say attachment as a provisional remedy but rather it is
preliminary attachment. Don't say injunction as a provisional remedy but rather
preliminary injunction. As to receivership, yes it is both an action and a
provisional remedy. Technically, it is not the receivership which is the provisional
remedy but rather appointment of a receiver because in receivership it is also a
kind of action. And then you have replevin or delivery of possession of personal
property. And then finally you have support pendente lite. Support is not a
provisional remedy but it is support pendente lite which is a provisional remedy.
Now, let me give you a bird's eye view of these provisional remedies.
First, because they are provisional, they cannot stand alone. Being provisional
remedies, they are dependent, contingent, or adhere to a principal action. So that
you cannot find an action for preliminary attachment. It must always be adhered
to the principal action.
Q: Because of that, what are the principal actions to which these provisional
remedies attach?
A:
1.) As to preliminary attachment, the principal action is recovery of real or
personal property. If you try to look at Section 1 Rule 57, you will find out that
all the actions there are for recovery of either real or personal property.
2.) As to preliminary injunction, the principal action is injunction although these
seldom find, in actual practice, an action for injunction because it always goes
with some other actions. Like for example specific performance and injunction
plus damages with prayer of preliminary injunction. Is there an action which is
injunction? Yes. Under Section 4 of Rule 39.
3.) As to receivership, receivership is the principal action. The provisional remedy
is appointment of a receiver. If you go and look at Section 4 of Rule 39, you
will see that receivership is an action.
4.) As to replevin, the principal action is recovery of personal property. In
replevin, a foreclosure on mortgage is possible.
5.) As to support pendente lite, the principal action is support.
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RULE 57
PRELIMINARY ATTACHMENT
Provisional remedy: Preliminary Attachment
Principal action: recovery of either real or personal property
Memorize Section 1 (the grounds) of Rule 57. Remember, you will appreciate
Rule 57 had you understood Rule 39 because there are cross-references
between these provisions. Section 7 of Rule 57 you will find out that that is also
practically the same or similar provision in Section 9-11 of Rule 39. Section 16 in
Rule 39 is Section 14 Rule 57, and Section 7 Rule 60 (Replevin). Try to analyze
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Q: A 3rd party can deal with the property that has been attached. Suppose it was
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Second action, an action also for recovery. But look at the defendant here, the
defendant is a public officer, officer of a corporation, attorney, factor, broker,
agent, or clerk. In other words there must be a fiduciary relationship between
the applicant and the respondent.
Third action, recovery of possession, this time, against a party who removed,
disposed, or does not disclose it, or who hid these properties.
Q: What is then a common denominator here?
A: There is an element of FRAUD.
When you go to paragraphs d, e, and f the phraseology is different. It is against a
party this time, not anymore to the kind of action but to the kind of person who is
a party defendant.
In paragraph d, a person who is guilty again of fraud in contracting a debt or
obligation upon which the action is brought or in the performance thereof.
Javellana v. D.O. Plaza Enterprises, Inc., L-28297, March 30, 1970 illustrates
the rule prior to the 1997 Rules of Court.
Facts of this case: There was a simple sale of property, let's say the purchase
price was P100, 000.00 D.O. Plaza paid 50% and the balance was secured with
postdated checks. Plaza took possession of the property sold. Later on, the
checks, which were in payment of the obligation contracted, bounced. It all
bounced. An action for sum of money was filed with prayer of preliminary
attachment using that the respondent was guilty of fraud in contracting its
obligation. When it reached the Supreme Court, the SC said no. Preliminary
attachment must be discharged because there was no fraud in contracting the
obligation but there was fraud in the performance thereof. And at that time, wala
pa yung term na in the performance thereof. Hence, the defendant here won in
the sense that the preliminary attachment was invalid.
That is why when they amended the 1997 Rules of Court, using the case of D.O.
Plaza, they included it in the present rules.
Paragraph e, is one against a party who tries to dispose the property again in
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NOTE: This is the peculiarity of rule 57. Unlike all other bonds which answer only
for damages, it is only in Rule 57 will the bond answer for the judgment. So you
underline the word judgment. Kasi dito mo lang makikita yan sa Rule 57.
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RULE 58
PRELIMINARY INJUNCTION
Provisional Remedy: Preliminary injunction
Principal Action: Injunction
We said you find an action for injunction in Section 4 in Rule 39. But seldom will
you find an action filed specifically for injunction only. It is coupled always with
other causes of action. Like damages, or recovery of property with injunction and
prayer for preliminary injunction and TRO.
Q: When do you apply?
A: We said any court has jurisdiction over injunctive relief.
It is often said that SC has no jurisdiction over an action for injunction. Of course
not, in the sense you do not file an original action with the SC. But if your action
is certiorari which is cognizable by the SC, you can ask for injunction.
Madaling intindihin ito ngayon, these are always in the papers. Ngayon,
maraming mga pulitiko ang hinahabol at dinidismiss, kaya they are all filing
injunctive relief. They are praying for annulment of the order of dismissal or
cancellation of the order of dismissal with prayer for injunction and writ of
preliminary injunction. Where do they go? To the CA because the defendant here
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The rules provide that when you apply for injunctive relief before a multi-sala
court, the executive judge, even before hearing the case, must give notice of
raffle. Raffle pa lang, may notice na dapat. So that if there is no notice of the
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RULE 59 RECEIVERSHIP
When we talked about receivership it is both a provisional remedy and a principal
action. Although it can happen that receivership is attached as a provisional
remedy to an action for a recovery.
Q: What is the principal action for receivership?
A: If the receivership is used as a provisional remedy, the principal action here is
for recovery of property whether real or personal.
Q: What would be the jurisdiction?
A: Jurisdiction shall depend upon the principal action. It can be taken cognizance
by the inferior court or the regional trial court. You cannot file it to the Court of
Appeals or the Supreme Court. You only file original actions in the SC or CA in a
very peculiar actions and we already know that when we studied jurisdictions.
Concurrent jurisdictions like certiorari, prohibition, mandamus, quo warranto,
habeas corpus.
Q: If you file an annulment of judgment of the MTC, where will you file it?
A: We do not apply Rule 47 because it is for the order of the Regional Trial
Court, we apply the general rule that no actions on appeal can go to the CA or
SC because it is a judgment of MTC. RTC has jurisdiction even though it is
annulment of judgment.
If receivership can be taken cognizance depending on the principal action, but if
the principal action is receivership itself since receivership may be the principal
action. While preliminary injunction can never be the principal action, what is the
principal action there is injunction. In receivership it may be a principal action or
provisional remedy. If it is a provisional action it must attached to a principal
action which is recovery. But unlike attachment, Sec. 1 Rule 57, states the
grounds for attachment. Sec. 1 Rule 59 also gives the different kinds of instances
where you can apply for receivership.
Q: What are these instances?
A: Sec. 1 Rule 59
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
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Rule 60 Replevin
Q: What is the principal action?
A: Recovery of possession of PERSONAL property
Q: Which court has jurisdiction?
A: MTC or RTC depending upon the value of the property because technically
replevin is only a provisional remedy.
Note: only receivership may only be a principal action but replevin will always be
a provisional remedy.
Q: What are the grounds for application of replevin?
A: Sec. 2
a. That the applicant is he 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. That actual market value of the property is stated in the affidavit.
Q: If A sold a lot to B, then B caused the titling of the property fraudulently in his
favor can A ask for recovery of the property being entitled to the recovery of the
property?
A: No, because replevin only applies to personal property.
The other provisional remedies we studied so far, you apply for the provisional
remedy from the commencement of the action or before judgment and even after
judgment in the case of receivership. But in replevin it should be availed of before
answer.
RULE 62 INTERPLEADER
Q: Which court has jurisdiction in an action for interpleader?
A: It may be taken cognizance by MTC or RTC. It depends upon the subject
matter of the interpleader.
Q: Why does it depend upon the subject matter? What can be the subject matter
of an interpleader?
A: Property whether real or personal may be the subject matter of an
interpleader, aside from that performance of an obligation may also be the
subject matter of an interpleader.
Note: Performance of the obligation cannot be filed in the MTC because it is
incapable of pecuniary estimation which is only cognizable by the RTC.
Performance of an obligation amounts to specific performance which is not
capable of pecuniary estimation.
For example you found a wallet, you surrender it to the dean, upon opening of
the wallet it was found to contain a check worth 350k payable to cash. A,B,C, and
D alleges ownership. The dean has no other choice but to file an action for
interpleader because there are 4 different claimants. Another example is A and B
are lessor and lessee over an apartment unit. At the end of the contract of lease
A would like to surrender the premises to B, but C and D came forward and said
they are entitled to that. A now does not know to whom to deliver, therefore A
should file an interpleader. Example of obligation, to paint, sculpt, perform.
Q: How do you distinguish now interpleader from intervention?
A: Interpleader is a special civil action while intervention is an ancillary action. In
the former there can be no single defendant, there must be at least 2 defendants
while in intervention there can be 1 defendant. In the former there is no action yet
while in the latter there is already a pending action.
Note: If you are asked to make a distinction do not define one and period
because you are not stating a distinction at all.
Q: After an action of interpleader is filed, what happens next?
A: The court shall order the respondents to file their answer.
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Note: This is the only rule where there is a section for a motion to dismiss.
Defenses and objections, that is what is meant there.
After filing an answer and once the issues are joined then you go to the regular
rules of court which is you go to pretrial then trial.
Certiorari
Any aggrieved
party
TBO
Grounds
1. Lack of
jurisdiction
2. Excess of
jurisdiction
3. Grave abuse of
discretion
amounting to lack
of jurisdiction
Judicial/quasi
judicial functions
(discretionary)
1. No appeal
2. No plain,
speedy, adequate
remedy in the
ordinary course of
law
To annul/void
judgment or final
order
Functions of
respondents
Conditions
Judgment
Prohibition
Same
Tribunal, Board,
Officer, Person,
Corporation
Same
Mandamus
same
TBOPC
1. Neglect in the
performance of
the act enjoined
by the law
2. Unlawfully
excludes the
enjoyment of an
office or franchise
Same + ministerial Same as
functions
prohibition
Same
To cease and
desist
Order to do but
may award
damages
RULE 67 EXPROPRIATION
Q: Who exercises jurisdiction?
A: The RTC because the action is not capable of pecuniary estimation. The value
of the property being only incidental to the case. (Russel V. Vestil, Brgy San
Roque V. Heirs of Pastor)
Q: Venue?
A: Where the property is located.
Q: Who are the parties who may expropriate?
A: LGU's, government instrumentalities however a resolution authorizing
expropriation must first be passed.
Q: Rule 67 is procedural. What is the substantive law which provides for
expropriation?
A: The 1987 Constitution
Q: What properties are involved?
A: Any kind of property, whether real or personal
Q: What does taking mean?
A: Taking includes not just actual taking but also diminution/deprivation of
benefits
Q: What does for public use mean?
A: It means that the purpose for taking would ultimately redound to the general
welfare of the people
Q: May a law be passed authorizing the city of Manila to expropriate a portion of
UST? May the compensation be by way of exchange of property?
A: No there can be no compensation by way of exchange of property because
the determination of Just compensation is a judicial function.
Q: What is the remedy of the owner of the property?
A:
1. Mandamus
2. Quo warranto
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RULE 69 PARTITION
Q: What is the object of partition?
A: To assign property.
Q: Jurisdiction
A: RTC because the case is not capable of pecuniary estimation.
Q: What are the stages in partition?
A:
1. Determination of the existence of co-ownership - absence of which partition is
unavailable
2. Determination of who are entitled and what properties to be distributed
NOTE: Each stage is final and appealable
Q: What kind of appeal?
A: By record of appeal because the action calls for multiple appeals.
Q: What is a project of partition?
A: Agreement between and among the parties in partition which is submitted to
the court on which a judgment of partition is made.
Q: Who prepares a project of partition?
A: Any of the co-owners
Q: Who are the parties in an action for partition?
A: Plaintiff - co-owner
Defendant - all other co-owners as indispensable parties
Q: What is the effect of the approval of the project?
A: Approval is equivalent to judgment of partition.
Q: If no project is agreed upon what should the court do?
A: Appoint a commissioner and the commissioner would make and submit a
project of partition.
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RULE 70
Q: What are the 3 kinds of action involving recovery of property?
A:
1. accion publiciana - right of possession
2. accion reinvindicatoria - recovery of ownership with possession as an
attribute of ownership
3. accion interdictal - possession de facto
a. forcible entry
b. unlawful detainer
i. governed by rule 70
ii. in case of agricultural property/land governed by the civil code
Q: Doctrine in Javellosa V. CA
A: Distinction between Unlawful detainer (UD) and Forcible Entry (FE)
UNLAWFUL DETAINER
Possession was lawful at the beginning
and became illegal thereafter
There is a need to establish prior
possession
Illegal detention of the property
FORCIBLE ENTRY
Possession is illegal from the beginning
Q: A is the lessor and B is the lessee who was not able to pay rentals for several
months. A filed a case of unlawful detainer against B. Judgment was rendered in
favor of B. Is the judgment in favor of B immediately executory?
A: No because he was already in possession of the property.
Q: What is immediately executory in the judgment as provided under sec.19?
A: The return of the property. Restoration or restitution to the one who is entitled
to possession.
Q: How is execution stayed?
A: Requisites for stay of execution
1. Perfection of appeal by filing a notice of appeal
2. Supersedeas bond
3. Deposit of the amount for the use and occupancy of the premises
Q: What is a supersedeas bond?
A: Unpaid rentals. If there are no unpaid rentals there is no supercedeas bond.
Q: How much is the supersedeas bond?
A:
1. In accordance with judgment
2. If there is no judgment, in accordance with the contract
3. In the absence of contract, according to what was paid as rentals
Q: What is the amount for use and occupancy?
A: Payment of rental during the pendency of the appeal.
Q: How much?
A: Same as supersedeas bond.
Q: Where do you file notice of appeal?
A: In the municipal trial court
Q: Where do you file supersedeas bond?
A: In the municipal trial court
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RULE 71
Q: What is contempt?
A: Upfront or defiance, act against dignity, integrity and justice of the court
Q: What are the two kinds?
A:
1. Direct Contempt
Done in the presence of or so near a judge that disrupted proceedings.
2. Indirect Contempt
Q: What are the remedies of a person cited in contempt?
A:
Direct Contempt
File a petition for certiorari and not an appeal because the judgment is only
interlocutory
Indirect Contempt
1. File an appeal
2. Post a bond
Q: Doctrine in the case of Yasay V. Recto
A: Supreme Court said that the power of contempt must be used in preventive
manner and not in vindictive manner. The distinction between civil and criminal
contempt was also abolished.