Provisional Remedies

1. Davao Light & Power Co. vs CA 29 December 1991 (Rule 57)

- the question is whether or not a writ of preliminary attachment may issue ex parte
against a defendant before acquisition of jurisdiction of the latters person by service of
summons or his voluntary submission to the courts authority.
- YES. What the rule is saying quite clearly is that after an action is properly
commenced- by filing the complaint and the payment of all requisite docket and other fees- the
plaintiff may apply and obtain a writ of preliminary attachment upon fulfillment of the pertinent
requisites laid down by the law, and that he may do so at any time, either before or after service
of summons on the defendant. And this indeed, has been the immemorial practice sanctioned
by the court: for the plaintiff or other party to incorporate the application for attachment in the
complaint or other appropriate pleading (counter-claim, cross-claim, third-party claim) and for
the Trial Court to issue the writ ex-parte at the commencement of the action if It finds the
application otherwise sufficient in form and substance.
- No hearing is required on an application for preliminary attachment, with notice to the
defendant, for the reason that this would defeat the objective of the remedy, since the time
which such hearing would take could be enough to enable the defendant to abscond or dispose
of his property before a writ of attachment issue.
- With respect to other provisional remedies, i.e., preliminary injunction (Rule 58),
receivership (Rule 59), replevin or delivery of personal property (Rule 60), the rule is the same:
they may also issue ex parte.

2. Onate vs. Abrogar 23 February 1995

- 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.
- The attachment of properties before the service of summons on the defendant is
invalid, even though the court later acquires jurisdiction over the defendant. At the very least,
then, the writ of attachment must be served simultaneously with the service of summons before
the writ may be enforced.

3. Lim vs. lazaro 3 July 1995

- While the provision of Rule 57 are silent on the length of time within which an
attachment lien shall continue to subsist after the rendition of a final judgment, jurisprudence
dictates that the said lien continues until the debt is paid, or the sale is had under execution
issued on the judgment or until the judgment is satisfied, or the attachment discharged or
vacated in the same manner provided by law.

4. Lukand vs Pagbiilao Development Corp. 10 March 2014 (Rule 58)

- A writ of preliminary injunction may be issued upon the concurrence of the following
essential requisites, to wit: (a) the invasion of right sought to be protected is material and
substantial; (b) the right of the complainant is clear and unmistakable; and (c) there is an urgent
and paramount necessity for the writ to prevent serious damage. While a clear showing of the
right is necessary, its existence need not be conclusively established. Hence, to be entitled to
the writ, it is sufficient that the complainant shows that he has an ostensible right to the final
relief prayed for in his complaint.

5. DFA vs. Falcon 1 September 2010

- A writ of preliminary injunction is an ancillary or preventive remedy that may only be
resorted to by a litigant to protect or preserve his rights or interests and for no other purpose
during the pendency of the principal action. The dismissal of the principal action thus results in
the denial of the prayer for the issuance of the writ.

6. Tantano vs. Espina-Caboverde 29 July 2013

- Before appointing a receiver, courts should consider: (1) whether or not the injury
resulting from such appointment would probably be greater than the injury ensuing if the status
quo is left undisturbed; and (2) whether or not the appointment will imperil the interest of others
whose rights deserve as much a consideration from the court as those of the person requesting
for receivership.
- It is essential that there is a clear showing that there is imminent danger that the
properties sought to be placed under receivership will be lost, wasted or injured.
- This Court has held that a receiver should not be appointed to deprive a party who is in
possession of the property in litigation, just as a writ of preliminary injunction should not be
issued to transfer property in litigation from the possession of one party to another where the
legal title is in dispute and the party having possession assets ownership in himself, except in a
very clear case of evident usurpation.
- Sec. 2 of Rule 59 is very clear in that before issuing the order appointing a receiver the
court shall require the applicant to file a bond executed to the party against whom the applicant
is presented. The filing of an applicants bond is required at all times.
- On the other hand, the requirement of a receivers bond rests upon the discretion of
court. Sec. 2 of Rule 59 clearly states that the court may, in its discretion, at any time after
appointment, require an additional bond as further security for such damages.

7. Sergs Product vs. PCI Leasing & Finance Co. 22 August 2000 (Rule 60)
- Rule 60 of the Rules of Court provides that writs of replevin are issued for the recovery
of personal property only.
- The Court has held that contracting parties may validly stipulate that a real property be
considered as personal. After agreeing to such stipulation, they are consequently estopped from

claiming otherwise. Under the principle of estoppel, a party to a contract is ordinarily precluded
from denying the truth of any material fact found therein.
- The Court upheld the intention of the parties to treat a house as personal property
because it had been made the subject of a chattel mortgage.
- The machinery used in a factory and essential to the industry was a proper subject of a
writ of replevin because it was treated as personal property in a contract.