XIX. PROVISIONAL REMEDIES Nature of provisional remedies (1) Provisional remedie iporary, auxilary, and ancilary remedies available to a litigant for the ‘and preservation of his rights while the main action is pending. They are wits which ere not mein actions and they presuppose the existence ofa principal action. (2) Provisional are resorted toby ligants for any ofthe following reasons: aT protect ther igh or imerasts wil the main actions pending; (b) Tos i " judgment ( the status quo; or ( Haneeacte 9 jonal remedies specified under the rules are: (a) Preliminary atachment (Rule 57} A ) Prlminary injunction (ule $8), (c) Reciverstip (Rule 69: R (d) Replevin (Rule 60), and R (@) Support pendent (fuie 61). § (4) 1990 Bar What are the provisional remedies under the rules? (2%) The provisional remedies under the Rules are preliminary attachment, preliminary injunction, receivership, replevin, and support pendente ite Eee (1) The court which grants or issues a provisional remedy is the court which has jurisdiction over the main action. Even an inferior court may grant a provisional remedy in an action pending with it and within its jurisdiction, (Peirce a (1) Preliminary attachment is 2 provisional remedy issued upon order of the cour ere an ‘ction is pending to be levied upon the property of the defendant so the be held by the sheriff as security for the satisfaction of whatever jud ‘ay be rendered in he case (Oaveo Lightane Power, inc. vs. CA, 204 SCRA (2) When availed of and is granted in an action purely in personam, it ‘the action to one that is quasi in rem. In an action in rem or quasi in rem, jutisdiction over the resis Suffciont.Juriscicion over the person of tho dofendant ic net (Vilarool vs. CA, 295 SCRA 511) (3) Preliminary attachment is designed to: {@) Seize the property ofthe debtor befor fra put the some in custodial Sguevenuthe te sents pong fort on of later judgmont (sola Som of hets and America ve" CA, 130 (0) To enatle the coun to acquire juradicion over the ex orth property subject of the dolor in eases where sonics in ero ‘ny other service to senvire jrcdicion over the defendant cannot be affected.(4) Preliminary atachment has three types: (@) Preliminary attachment - one issued at the commencement of the action or at any time before entry of judgment as security for the satisfaction of any judgment that may be recovered. Here the court takes custody of the property ofthe party against whom attachmentis drected. (b) Garnishment -plaintif seeks to subject either the property of defendant in the hands ofa third person (garnishee) to his claim or the money which said third person owes the defendant, Garnishment does not involve actual seizure of property which remains inthe hands of the gamishee. It simply impounds the property in the garnishee's possession and maintains the status quo until the main action is finally decided. Garnishment proceedings are usually drected against personal property, tangible or intangible and whether capable of manual delivery or not. (c) Levy on execution - wit issued by the court after judgment by which the property of the judgment obligor is taken into custody of the court before the sale of the on execution for the satsfaction of a final judgment. It is the preliminary step to the sale on execution ofthe property ofthe judgment debtor. (6) The grant of the remedy is addressed to the discretion of the court whether or not the application shall be given full credit is discretionary upon the court. in determining the propriety of the grant, the court also considers the principal case upon which the provisional remedy depends. (6) Attachment is defined as a provisional remedy by which the property of an adverse party is taken into legal custody, either atthe commencement of an action or at any time thereafter, as a security for the satisfaction of any judgment that may be recovered by the plaintif or any proper party. Being merely ancilary to a principal proceeding, the attachment must fail if the suit itself cannot be maintained as the purpose of the writ can. rno longer be justified. The attachment itself cannot be the subject of a separate action independent ofthe principal action because the altachment was only an incident of suchaction. In this case, with the RTC's loss of jurisdiction over the Civil Case No. 0-05- 53699 necessarily comes its loss of jurisdiction over all matters merely ancillary thereto, (Northem Islands Co, Inc, v. Sps. Dennis and Cherylin Garcia, GR No. 208240, 09/182015). (7) 2000 Bar: JFK's real property is being attached by the sheff in a civil action for damages against LM. JK claims that he is not involved in said case: and that he is the sole registered owner of said property. Under the Rules of Court, what must JK do to prevent the sheriff from attaching hs property? Answer: Ifthe real property has been attached, the remedy is to fil a third party claim. The third-party daimant should make an affidavit of his tile to the property attached, stating the grounds of his te thereto, and serve such affidavit upon the shen while the latter has possession of the attached property, and @ copy thereof upon the attaching party (Rule 57, Section 1). The thirc-parly claimant may also intervene or file a separate civil action to vindicate his claim to the property involved and secure the Necessary reliefs, such as preliminary injunction, which will not be considered as interference with a court of coordinate jurisdiction (Ong v. Tating, 149. SCRA 268). (6) 1999 Bar: Distinguish tachment rom garnishment. (2%) Answer: Attachment and gamishment are distinguished from each other as folows: ‘Attachment is a provisional remedy that effects a levy on property of a party as security for the satisfaction of any judgment that may be recovered, while gamistment is a levy on debis due to the judgment obiigor or defendant and other credits, including bank- deposits, royalties, and ober personal property nat capable of manual delivery under a writof execution ora wnt ofatachment. (2) 1999 Bar: In acase, the property of an incompetent under guardianship was in custodia legis. Canitbe attached? Explain. (2%) ‘Answer: Although the property of an incompatent under guardianship is in custodia legis, it may be attached as in fact itis provided that in such case, a copy of the wrt of attachment shall be fled with the proper court and notice of the attachment served upon the custodian of such property (Rule 57, Section 7). (10) 1999 Bar: May damages be claimed by a party prejudiced by a wrongful attachment even ithe judgment was adverse to him? Explain. (2%) ‘Answer: Yes, damages may be claimed by a party prejudiced by a wrongful attachment even f the judgment is adverse to him. Ths is auhorzed by the Rules. A claim for damages may be made on account of improper, irregular, excessive attachment, which shall be heard with notice to the adverse party and his surety or sureties (Rule 57, Section 20) Javellana v. 0.0. Plaza Enterprises, Inc, 32 SCRA 281).(11) 2004 Bar. May a preliminary attachment be issued ex parte? Brey state the reasons) foryour answer. (3%) Maya wit of preliminary injunction beissued ex parte? (2%) ‘Answer: Yes, an order of tachment may be issued ex parte or upon motion with notice and hearing (Section 2). The reason why the order may be issued ex parte is that requiring notice to the adverse party and hearing would defeat the purpose ofthe provisional remedy and enable the adverse party to abscond or cispose of his property belore a wit of etachment or dispose of his property before a wit of atachment issues (Windsnao Savings and Loan Assn. v. Court of Appeals, 172 SCRA 480). b. No, a wt of preliminary injunction may not be issued ex parte. As provided in the Rules, no preliminary injunction shall be granted without hearing and prior notice to the party or person sought be adjoined (Rule 68, Section §). The reason is that a preliminary injunction may cause grave and ineparable injury tothe party enjoined. (12) 2002 Bar. The paint obtained a wrt of preiminary attachment upon a bond of Pt nilion. The writ was levied onthe defendant's property, but it was discharged upon the posting by the defendant of a counter bond in the same amount of P1 milion. After trial, the court rendered judgment finding that the plaintiff had no cause of action against the defendant ard that he hed sued out the wit of attachment maliciously. Accordingly, the court dismissed the complaint and ordered the plaintiff and its surety to pay jointly to the defendant P1.5 milion as actual damages, P0.5 million as moral damages and P0.5 nilion as exemplary damages.Evaluate me soundness oftre judgment rom the point ot VW oF procedure. (2%) ‘Answer: The judgment against the surety is not sound if due notice wes not given to tim ofthe application for damages (Rule $7, Sectian 20) Moreover, the judgment against the surety cannot excaed the amount. of its counterbond of P1 milion. 2002 Bar. A default judgment was rendered by the RTC ordering D to pay P-a sum of money. The judgment became final, bu D filed a petition for relief and obtained a writ of preliminary injunction staying the enforcement ofthe judgment. After hearing, the RTC ismissed D's petition, whereupon P immediately moved for the execution of the judgment in his favor. Should P's motion be granted? Why (3%) Answer: F's immediate motion for execution of the judgment in his favor should be granled because the dismissal of D's petton for relief also dissolves the writ of preliminary injunction staying the enforcement ofthe judgment, even ifthe cismissal is Tl ye final (Golez v. Leonidas, 107 SCRA 187/1981)).. (18) 2005 Bar. Katy fled an action against Tyrone for collection of the sum of PY milion in the Regional Trial Court, with an ex parte application for a writ of preliminary attachment. Upon posing of an attachment bond, the court granted the application and issued a writ of preliminary attachment. ‘Apprehensive that Tyron might withdraw his savings depostt with the bank, the sherif immediately served a notice of garnishment on the bank to implement the writ of Preliminary attachment. The following day, the sherif proceeded to Tyrone’s house and served him the summons, wth copies ofthe complaint containing the application for wrt of preliminary containing the application for writ of preliminary attachment, Katy’s affidavit, order of atachment, wri of preliminary attachment and atachment bond. Within fiteen (15) days from service ofthe summons, Tyrone fled a motion to dismiss and to dissolve the writ of preliminary attachment on the following grounds: () the court id not acquire jurisdiction over his person because the wrt was served ahead of the summons; (i) the wrt was improperly implemented; and (ii) said writ was improvidently issued because the obligation in question was already ful paid. Resolvethe motion with reasons. (4%) ‘Answer: The fact that the wit of attachment was served ahead of the summons did not affect the jurisdiction of the court aver the defendant. The effect is that the writ is not enforceable (Rule £7, Sec. 5) But, as pointed out by jurisprudence, all thatis needed to be done isto re-sarve the wnt (Onate v. Abrogar, 241 SCRA 659 /1985)). The writ was improperly implemented. Serving a notice of gamishment, particularly before summons is sarved, is not proper. What should be served on the defendant are 2 copy of the wrt of attachment and notice that the bank deposits are attached pursuant to the writ Rule 87, Section 7d).