Provisional Remedies Richard Allan A.
Lim
(Please read the pertinent cases and codal provisions)
Introduction
1. Rule 127 provides that attachment may be availed of in
the following cases, where the sheriff is authorized to levy
the property for the satisfaction of the judgment:
(a) When the accused is about to abscond from the
Philippines;
(b) When the criminal action is based on a claim for
money or property embezzled or fraudulently misapplied
or converted to the use of the accused who is a public
officer, officer of a corporation, attorney, factor, broker,
agent, or clerk, in the course of his employment as such,
or by any other person in a fiduciary capacity, or for a
willful violation of duty;
(c) When the accused has concealed, removed, or
disposed of his property, or is about to do so; and
(d) When the accused resides outside the Philippines.
2. Under Rule 111, Civil action deemed instituted in criminal
action except when:
A. Waived
B. Reserved the right to file
C. Separately filed before the Criminal action
Rule 57. Preliminary Attachment
Grounds:
(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 quasi-delict against a party who is about to depart
from the Philippines with intent to defraud his creditors;
- The amount of damages must be specified in the
complaint
- Moral and exemplary damages are not included
because until they are awarded by the court they are
not yet specified.
- It will not affect the application provided there are
grounds
- The court will disregard the moral and exemplary
damages aspect and issue the writ of attachment
(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 any other person in a fiduciary
capacity, or for a willful violation of duty;
- Violation of duty and fiduciary relationship.
- Does not cover negligence, but covers civil and
criminal conducts
(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;
- Covers personal property only
- There must be an intent to deceive
(d) In an action against a party who has been guilty of a
fraud in contracting the debt or incurring the obligation
For personal use only. Unauthorized distribution prohibited
upon which the action is brought, or in the performance
thereof;
- Guilty of fraud in contracting the debt or incurring
the obligation or in the performance thereof.
- There must be circumstances to show the allegation
of fraud
(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)
- See also Rule 14, Sec 15 (Extraterritorial Service)
- where the identity and the whereabouts are unknown
and cannot be served
Sec 4. Condition for applicants bond
- not pegged due to circumstances
- shall only cover properties not exempt from
execution
Sec. 5. Manner of attachment
- only so much as is written in the writ
Sec. 7. Attachment
- real property- annotated on the registry with respect
to the title
- once there is final judgment, it will be levy on
attachment
- the sheriff is authorized to deliver to the winning
party, any excess shall be returned to the defendant
Sec. 8. Effect of attachment of debts, credits etc.
- becomes a false intervenor.
- becomes subject to custodia legis and can be
garnished
Sec. 10. Examination of party
- They may be called upon by the court for the
examination regarding the property of the property
o may seek out and locate the property upon
motion
o look for the persons who have the property
of the same
Sec. 12. Discharge
- discharged by counterbond or deposit as the
obligation is now secured
Sec. 13. Dissolution- to ask for dissolution, some of the
grounds can be:
- No valid grounds
- Defective affidavit
- Invalid issuance
- No applicant bond or is insufficient
Sec. 14. Proceedings where claimed by third person
- Affidavit filed by third person, such that the sheriff
shall not be bound to keep the property attached
unless the applicant files a bond to indemnify the
third party.
Sec. 15. Perishable goods
- to be sold or levied, if there is balance that must be
satisfied, then it must be collected from the party
- for bank, the amount shall be held for final judgment
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 Provisional Remedies
Notes
1. Can be filed at any time before the entry of judgment
(judgment reaches finality and is entered in the books)
2. There must be recital of the particular circumstances and
facts to support the allegations, not just reproduction of the
wording of the law.
3. Bond filed in an amount to cover all the costs and damages
that may be suffered by the adverse party as a result of the
attachment. If the defendant files a counterbond, the writ
cannot be enforced.
4. Stages in the issuance of the writ of preliminary attachment
(A) Order of the court for the issuance of the writ
(B) Issuance of the writ
(C) Implementation of the writ. The documents that
must be served to the adverse party are:
1. The order issuing the Writ
2. The writ itself
3. Summons
4. Complaint with affidavit
5. Proof of bond payment in the original
complaint
At (A) and (B) jurisdiction over the defendant is not yet
acquired. It is only at (C) when the court of coercively act
against the defendant.
5. Writ can only be dissolved by payment of a counterbond. As
long as the requirements under Sec. 1 and 2 are complied with,
the writ can be applied for. Jurisdiction over the defendant is
only needed at the time of implementation.
6. Writ of attachment has no lifetime
Important Case Doctrines:
PBC vs. CA
- Under Sec. 1(d), for a debt to be considered as
fraudulently incurred, there must be a pre-conceived
plan not to comply with the debt or pay the same.
- Mere allegations and recital of the provisions do not
suffice, there must be recital of facts and
circumstances to prove it.
FCY vs. CA
- The fraud must relate to the execution of the
agreement and must have been the reason which
induced the other party into giving consent which he
would not have otherwise given. To constitute a
ground for attachment in Section 1 (d), Rule 57 of the
Rules of Court, fraud should be committed upon
contracting the obligation sued upon.
Davao Light vs. CA
- Writ can be applied for at the commencement of the
action (when the complaint is filed before issuance of
summons), in which case it is ex-parte (No need for
hearing, proper application and bond is sufficient. But
the court may require hearing if deemed necessary).
Once the case is tried, the writ is no longer grantable
ex-parte and must be made upon motion
- The two ways by which writ of attachment can be
dissolved: 1) posting of counterbond; 2) showing its
irregular issuance (but when basis is based on the
same cause of action of the original complaint, it
For personal use only. Unauthorized distribution prohibited
Richard Allan A. Lim
would be tantamount to a trial on merits if evidence
were to be presented, hence only counterbond is the
only means to dissolve)
- The three stages for writ of attachment (see #4)
Adlawan vs. Torres
- Insufficient bases is a ground for the dismissal of the
application for the writ
- Mere inability to pay ones creditors is not
necessarily synonymous with a fraudulent intent not
to honor an obligation
Cuartero vs. CA
- No notice to the other party is required for ex parte
writ of preliminary attachment as it would render
useless the aim of the said writ which is to prevent
the disposal of the properties sought to be attached.
Sievert vs. CA
- Valid service of summons and a copy of the
complaint vests jurisdiction over the defendant both
for the purpose of the main action and the provisional
remedy. The court who has not acquired jurisdiction
over the defendant cannot bind the same for either
action
- When the petition for preliminary attachment is with
a separate pleading, it must be served simultaneously
with the summons and a copy of the pleading. If
prayed for in the main pleading, a copy of the
complaint together with the summons suffices to
obtain jurisdiction over the adverse party.
PCL vs. CA
- Fraudulent intent cannot be inferred from the mere
inability to pay or comply with its obligations
- Failure to state circumstances to show that the
defendant had a preconceived plan not to pay is
insufficient
K.O. Glass vs. Valenzuela
- Affidavit for attachment must state the following,
under Sec. 3 of the Rule:
o Sufficient cause of action exists
o The case is one of those mentioned in Sec 1a
of Rule 57
o There is no other sufficient security for the
claim sought to be enforced by the actiom
o The amount due to the applicant for
attachment or the value of the property in
the possession of which he is entitled to
recover, is as much as the sum for which the
order is granted above all legal counerclaims
- Failure to allege any of the requirements mentioned
for the issuance of the writ of attachment renders the
same fatally defective and the judge issuing the same
despite the defect is guilty of grave abuse of
discretion
Jardine vs. CA
- As ruled in K.O. Glass, failure to allege any of the
requirements for application for writ renders it fatally
defective and cannot be cured by amendment
- The stringent requirements for the issuance of the
writ must be complied with, although exact wordings
are not necessary.
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 Provisional Remedies
- Writ of preliminary attachment is a harsh remedy and
must be construed in favor of the defendant
Arellano vs. Flojo
- Issuance of writ without service of summons and an
acceptable bond is invalid and judge who issues the
same is guilty of grave abuse of discretion.
- An undertaking cannot be considered as a bond
sufficient for the issuance of writ
HB Zachary vs. CA
- Issuance of the writ is not the same as the
enforcement of the same.
- For the issuance, the trial court has unlimited power
to issue the writ of preliminary attachment even
before jurisdiction over the defendant is acquired. But
as to enforcement, the court has no power over the
defendant until jurisdiction over the same is acquired
only after valid service of summons and required
documents or by voluntary submission to the courts
authority
Rule 58. Preliminary Injunction
1. Two kinds of preliminary injunction
- Prohibitory Injunction- requires that a party refrain
from doing certain act or acts
- Mandatory Injunction- requires that a party perform
certain act or acts.
2. It can be applied for at any time before the final judgment or
order or determination of the case (disposes of the case)
3. Injunction can be a main action or a provisional remedy
Provisional remedy Main Action
Merely seeks status quo ante, The main relief or prayer
to put the parties where they embodied in the action
were before the dispute Once issued upon the finality
of judgment, it is no longer a
provisional remedy
Sec. 3. Grounds:
(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 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, and tending to render the judgment ineffectual.
(3a)
- to be entitled, there must be a clear showing of a positive
right requiring protection, not just a contingent or
Sec 4. Service of summons
- There must be prior and contemporaneous service of
summons.
- Notice can be served preceded or shall be served
contemporaneously with the service of summons,
affidavit and bond.
For personal use only. Unauthorized distribution prohibited
Richard Allan A. Lim
- Similar to writ of preliminary attachment, jurisdiction
over adverse party is acquired only at the
implementation of the writ.
- Prior and contemporaneous service before the raffle,
and should include the complaint, except when it
could not be served when the party is out of the
country temporarily or not a resident
- Par (d)- usually preliminary injunction is
accompanied by a TRO which can be either be
mandatory prohibitory
- Requirements:
1. Verified complaint (cannot be applied for ex parte)
o TRO where there is great and irreparable
injury not capable of estimation which shall
last 20 days
o a 72 hour TRO can be granted upon extreme
urgency and showing that there will be great
and irreparable injury.
2. Bond executed to the party enjoined
3. In a one sala court, the notice must be made before
the hearing of the writ of preliminary injunction
(within 24 hours after the transmittal of the records
by the Clerk of Court).
Grounds for non-issuance of writ of preliminary injunction
- Improper collection of taxes
- Enjoin criminal prosecution except in cases where
there is clear case of prosecution in more popular
cases (174 SCRA 438)
- Prejudicial questions
- Double jeopardy apparent
- R.A. 8975 where TRO cannot be used on government
infrastructure projects except when issued by the SC
Sec. 4. Verified application and bond
- Verified application, must show facts
- Bond is filed, unless exempted
- When application for preliminary injunction or TRO
is included in the main complaint, for multi-sala
court, it shall be raffled only after notice and presence
of the adverse parties or persons enjoined. There must
e prior or contemporaneous summons, copy of
complaint or iniatory pleading and affidavit and
bond.
Sec. 5. No Preliminary injunction granted without prior
notice and hearing
- Effectivity of TRO is for 20 days, and at the donf 20
days, it automatically expires. For CA it is for
60days, for the SC, there is no limit.
- The TRO cannot be granted without a summary
hearing to be conducted within 24 hours from the
time of return of service of summons or the time the
records are transmitted from a particular branch.
- The executive judge of a multi-sala court can issue
without notice a TRO good for 72 hours when the
matter is of extreme urgency and the applicant will
suffer grave and irreparable injury. Within the 72
hours, the judge shall conduct a summary hearing to
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 Provisional Remedies
determine whether or not to extend the TRO to 20
days until the filing of an application for preliminary
injunction. However, the 72 hour period will included
in the 20 day life of TRO if extended. The judge has
to act on the application for preliminary injunction
within that 20 day period. Party enjoined must show
cause as to why the writ of preliminary injunction
should not be granted. The 72 hours shall be
computed from the time of service upon the parties.
Sec. 6. Grounds for Objection
1. Insufficiency- the court on its own could csonduct a hearing
to see if the allegations are sufficient
2. May be denied
3. May be granted but dissolved if damage is compensable
Important Case Doctrines:
Rosauro vs. Cuneta
- Injunction can be the main action
- There are two requisites for the issuance of the writ
of preliminary injunction
o That the right to be protected exists
o That the acts against which the injunction is
to be directed are violative of the said right
- Party seeking injunction must be a party in interest
PVTA vs. Delos Angeles
- The filing of ailieged insufficient or defective bond
does not dissolve absolutely and unconditionally the
injunction
- Injury is considered irreparable if such is of constant
and frequent recurrence that no fair and reasonable
redress can be had therefore in the court of law. If the
amount of damage can be estimated, then a
counterbond can dissolve the writ.
- Writ of preliminary injunction granted only after
o The invasion of the right is material and
substantial
o The right of the complainant is clear and
unmistakable
o There is an alleged urgent and permanent
necessity of the writ to prevent serious
damage.
Yu vs. CA
- Constant recurring damage, continuing acts that are
not cannot be determined precisely, and not capable
of mathematical computation
- If damage irreparable, filing of counterbond will not
dissolve the writ of preliminary attachment
- Injunction is the remedy to prevent a wrongful
interference with contracts by strangers to such
contracts where the legal remedy is insufficient and
the resulting injury is irreparable
Rivera vs. Florendo
- Mandatory injunctions will not be issued in favor of a
party whose rights are not clear and free of doubt or
as yet undetermined.
- (see PVTA case for when writ may be issued)
Aquino vs. Luntok
For personal use only. Unauthorized distribution prohibited
Richard Allan A. Lim
- A TRO is an interlocutory order or writ issued by the
court as restraint against the adverse party until the
propriety of issuing a preliminary injunction can be
determined, the purpose being to preserve status quo
- No preliminary injunction shall be granted without
notice to the defendant
- The 20 day period of a TRO is non-extendible, and
that the order for the issuance of the preliminary
injunction must be made within that 20 day period.
But the said extension beyond 20 days is not an
absolute nullity, provided there is the existence of the
grounds provided for as required under the rules.
Garayblas vs. Atienza
- Injunction can be a main action or an ancillary
remedy incident of a main independent action or
proceeding.
- The main action for injunction seeks judgment
embodying a final injunction. A provisional remedy
of preliminary injunction is where the sole object is
to preserve status quo until the merits can be heard.
It can be granted at any stage of the action prior to
judgment or final order and persists until dissolved or
the court does not issue a final injunction
Bacolod City Water District vs. Labayen
- Injunction can be a main action
- A restraining order is issued to preserve status quo
until the hearing for preliminary injunction because
the latter cannot be issued ex parte.
- A TRO lasts for 20 days from the date of issuance
and will automatically expire upon the end of the 20
day period by force of law without need of judicial
intervention.
- The rule on non-extendibility of a 20 day TRO is
absolute for those issued by the RTC, for
Rule 59. Receivership
Receiverships not covered by Rule 59
1. Sec. 41, Rule 39 covers the properties of the judgment
obligor
2. P.D. 902-A companies under rehabilitation plan, which
includes corporations, partnerships and associations
3. R.A. 10142 the Financial Rehabilitation and Insolvency
Act (FRIA) for natural persons and sole proprietorships
4. Receivers appointed by the Central Bank for banks
under liquidation
Under Rule 59
Receiver a person appointed by the court to administer,
preserve, and dispose of the property that is subject of the
litigation, action or proceedings to prevent it being lost,
destroyed or materially injured.
1. Application for receivership may be filed at any time even
after judgment (see Sec 1(c))
2. Receivership, like injunction can be a main cause of action
under Sec. 4, Rule 39 and Sec. 19, Rule 70.
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 Provisional Remedies Richard Allan A. Lim
3. Applicant must have an interest in the property (see NIDC - Receiver should be a neutral third person (see
case) but need not be the owner of the property as in the case exceptions on #4)
of a usufructuary of a usufruct or a lessee of a leased property Salientes vs. IAC
4. The general rule is that the receiver must be a third party - A receiver can be appointed even after judgment has
who is neutral, however, the applicant can nominate a receiver been rendered, as stated in Sec 1 (d).
provided the other party consents to the appointment. - a receiver shall have the power to bring and defend
Furthermore, the parties can stipulate a receiver in their such actions in his own name subject to the control of
agreement. the court where the action is pending (see Sec. 7)
5. The receiver, who administers the property, is under the
control of the court. NIDC vs. Aquino
6. The property or fund may be placed under custodia legis but - If the party applying for a receiver no longer have a
must have the consent of the court. right or interest in the property, then they no longer a
party in interest and cannot file or assail the
Grounds (Sec 1): appointment of a receiver. Such right must be present
(a) When it appears from the verified application, and such and existing.
other proof as the court may require, that the party applying - Imminent danger of the property being lost, destroyed
for the appointment of a receiver has an interest in the or materially injured must be clearly shown and
property or fund which is the subject of the action or proved before a receiver can be appointed
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 probable 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 effect;
(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.
Sec. 2. Bond for appointment of the receiver
- Amount of bond shall be fixed by the court, in order
to cover the damages hat may be suffered due to
appointment of receiver.
Sec. 3. Denial or application or discharge of receiver
- May be discharged upon the filing of a bond executed
by the adverse party
- Receiver may be discharged if the appointment was
shown to be without just cause.
Sec. 4. Oath and bond of receiver
- Receiver required to swear under oath to perform his
duties faithfully and shall file a bond to the effect that
he will comply with his duties faithfully

Important Case Doctrines:

Commodities Ice Storage vs. CA
- Mere allegations of hazards must be proven,
otherwise no reason to appoint a receiver.
- Appointment of a receiver is not an absolute right but
subject to the discretion of the court based on the
facts and circumstances of each case.

For personal use only. Unauthorized distribution prohibited 5