REMEDIAL LAW REVIEW | Hao

Provisional Remedies
Preliminary Attachment
Oñate v. Abrogar
Civil Procedure; Writ of Attachment; Summons; It is required that when the proper officer commences
implementation of the writ of attachment, service of summons should be simultaneously made.—The
statement in question has been taken out of context. The full statement reads: 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 attachment, service of summons should be simultaneously made.

Same; Same; Same; At the very least, the writ of attachment must be served simultaneously with the service
of summons before the writ may be enforced.—Indeed, as this Court through its First Division has ruled on
facts similar to those in these cases, 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. 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.

Same; Same; Lifting of Attachment; The lifting of an attachment may be resorted to even before any property
has been levied on.—The Rules of Court do not require that issuance of the writ be kept a secret until it can
be enforced. Otherwise in no case may the service of summons on the defendant precede the levy on
attachment. To the contrary, Rule 57, § 13 allows the defendant to move to discharge the attachment even
before any attachment is actually levied upon, thus negating any inference that before its enforcement, the
issuance of the writ must be kept secret. Rule 57, § 13 provides: SEC. 13. Discharge of attachment for
improper or irregular issuance.—The party whose property has been attached may also, at any time either
before or after the release of the attached property, or before any attachment shall have been actually levied,
upon reasonable notice to the attaching creditor, apply to the judge who granted the order, or to the judge
of the court in which the action is pending, for an order to discharge the attachment on the ground that the
same was improperly or irregularly issued. . . (Emphasis added). As this Court pointed out in Davao Light and
Power, the lifting of an attachment "may be resorted to even before any property has been levied on."

Same; Same; Notice; It is not notice to the defendant that is sought to be avoided but the "time which such
hearing would take" because of the possibility that defendant may delay the hearing to be able to dispose of
his properties.—It is indeed true that proceedings for the issuance of a writ of attachment are generally ex
parte. In Mindanao Savings and Loans Ass'n. v. Court of Appeals it was held that no hearing is required for
the issuance of a writ of attachment because this "would defeat the objective of the remedy [because] 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 issues." It is not, however, notice to defendant that is sought to be
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avoided but the 'time which such hearing would take" because of the possibility that defendant may delay
the hearing to be able to dispose of his properties. On the contrary there may in fact be a need for a hearing
before the writ is issued as where the issue of fraudulent disposal of property is raised. It is not true that
there should be no hearing lest a defendant learns of the application for attachment and he removes his
properties before the writ can be enforced.

Same; Same; Jurisdiction Over the Person of Defendant; To authorize the attachment of property even before
jurisdiction over the person of the defendant is acquired through the service of summons or his voluntary
appearance could lead to abuse.—On the other hand, to authorize the attachment of property even before
jurisdiction over the person of the defendant is acquired through the service of summons or his voluntary
appearance could lead to abuse. It is entirely possible that the defendant may not know of the filing of a case
against him and consequently may not be able to take steps to protect his interests.

Same; Same; Same; More important than the need for insuring success in the enforcement of the writ is the
need for affirming a principle by insisting on that "most fundamental of all requisites—the jurisdiction of the
court issuing attachment over the person of the defendant."—Nor may sheriff s failure to abide by the law
be excused on the pretext that after all the court later acquired jurisdiction over petitioners. More important
than the need for insuring success in the enforcement of the writ is the need for affirming a principle by
insisting on that "most fundamental of all requisites—the jurisdiction of the court issuing attachment over
the person of the defendant." It may be that the same result would follow from requiring that a new writ be
served all over again. The symbolic significance of such an act, however, is that it would affirm our
commitment to the rule of law.

Same; Same; Same; Such examination is only proper where the property of the person examined has been
validly attached.—Since, as already stated, the attachment of petitioners' properties was invalid, the
examination ordered in connection with such attachment must likewise be considered invalid. Under Rule
57, § 10, as quoted above, such examination is only proper where the property of the person examined
has.been validly attached. Oñate vs. Abrogar, 241 SCRA 659, G.R. No. 107303, G.R. No. 107491 February 23,
1995

Davao Light & Water v. CA

Civil Procedure; Preliminary attachment may be validly applied for and granted before defendant is
summoned or is heard from.—Rule 57 xxx speaks of the grant of the remedy “at the commencement of the
action or at any time thereafter.” The phrase, “at the commencement of the action,” obviously refers to the
date of the filing of the complaint—which, as above pointed out, is the date that marks “the commencement
of the action;” and the reference plainly is to a time before summons is served on the defendant, or even
before summons issues. What the rule is saying quite clearly is that after an action is properly commenced—
by the filing of the complaint and the payment of all requisite docket and other fees—the plaintiff may apply
for and obtain a writ of preliminary attachment upon fulfillment of the pertinent requisites laid down by law,
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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 courts: for the plaintiff or other proper party to
incorporate the application for attachment in the complaint or other appropriate pleading (counterclaim,
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.

Same; Writs of attachment may properly issue ex parte.—For the guidance of all concerned, the Court
reiterates and reaffirms the proposition that writs of attachment may properly issue ex parte provided that
the Court is satisfied that the relevant requisites therefor have been fulfilled by the applicant, although it
may, in its discretion, require prior hearing on the application with notice to the defendant; but that levy on
property pursuant to the writ thus issued may not be validly effected unless preceded, or contemporaneously
accompanied, by service on the defendant of summons, a copy of the complaint (and of the appointment of
guardian ad litem, if any), the application for attachment (if not incorporated in but submitted separately
from the complaint), the order of attachment, and the plaintiff ‘s attachment bond. Davao Light & Power Co.,
Inc. vs. Court of Appeals, 204 SCRA 343, G.R. No. 93262 November 29, 1991

Sievert v. CA
Attachment; Jurisdiction; The critical time when the trial court acquires authority under the law to act
coercively against the defendant or his property in a proceeding in attachment is the time of the vesting of
jurisdiction in the court over the person of the defendant in the main case.—There is no question that a writ
of preliminary attachment may be applied for a plaintiff “at the commencement of the action or at any time
thereafter” in the cases enumerated in Section 1 of Rule 57 of the Revised Rules of Court. The issue posed in
this case, however, is not to be resolved by determining when an action may be regarded as having been
commenced, a point in time which, in any case, is not necessarily fixed and identical regardless of the specific
purpose for which the determination is to be made. The critical time which must be identified is, rather, when
the trial court acquires authority under law to act coercively against the defendant or his property in a
proceeding in attachment. We believe and so hold that that critical time is the time of the vesting of
jurisdiction in the court over the person of the defendant in the main case.

Same; Same; Same; Attachment, as an ancillary remedy; Nature of.—Attachment is an ancillary remedy. It is
not sought for its own sake but rather to enable the attaching party to realize upon relief sought and expected
to be granted in the main or principal action. 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.

Same; Same; Same; Same; Summons; Valid service of summons and a copy of the complaint will vest
jurisdiction in the court over the defendant both for the purposes of the main case and for purposes of the
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ancillary remedy of attachment.—Ordinarily, the prayer in a petition for a writ of preliminary attachment is
embodied or incorporated in the main complaint itself as one of the forms of relief sought in such complaint.
Thus, valid service of summons and a copy of the complaint will in such case vest jurisdiction in the court
over the defendant both for purposes of the main case and for purposes of the ancillary remedy of
attachment. In such case, notice of the main case is at the same time notice of the auxiliary proceeding in
attachment. Where, however, the petition for a writ of preliminary attachment is embodied in a discrete
pleading, such petition must be served either simultaneously with service of summons and a copy of the
main complaint, or after jurisdiction over the defendant has already been acquired by such service of
summons. Notice of the separate attachment petition is not notice of the main action. Put a little differently,
jurisdiction whether ratione personae or ratione materiae in an attachment proceeding is ancillary to
jurisdiction ratione personae or ratione materiae in the main action against the defendant. If a court has no
jurisdiction over the subject matter or over the person of the defendant in the principal action, it simply has
no jurisdiction to issue a writ of preliminary attachment against the defendant or his property.

Same; Same; Same; Same; Same; Fundamental requisite is the jurisdiction of the court issuing attachment
over the person of the defendant; Case at bar.—It is basic that the requirements of the Rules of Court for
issuance of preliminary attachment must be strictly and faithfully complied with in view of the nature of this
provisional remedy. In Salas v. Adil, this Court described preliminary attachment as—“a rigorous remedy
which exposes the debtor to humiliation and annoyance, such [that] 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
writ so issued shall be null and void.” The above words apply with greater force in respect of that most
fundamental of requisites, the jurisdiction of the court issuing attachment over the person of the defendant.
In the case at bar, the want of jurisdiction of the trial court to proceed in the main case against the defendant
is quite clear. It is not disputed that neither service of summons with a copy of the complaint nor voluntary
appearance of petitioner Sievert was had in this case. Yet, the trial court proceeded to hear the petition for
issuance of the writ. This is reversible error and must be corrected on certiorari. Sievert vs. Court of Appeals,
168 SCRA 692, No. L-84034 December 22, 1988

Carlos v. Sandoval
Civil Law; Damages; Sureties; Attachment Bonds; Section 20 of Rule 57 of the 1997 Rules of Civil Procedure
requires that there be a “proper hearing” before the application for damages on the attachment bond may
be granted; 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.—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.
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Same; Same; Same; Same; It is 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.—In
Paramount Insurance v. Court of Appeals, the Court held that 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.

Same; Same; Same; Same; There is no express requirement under the rule that the hearing be done in open
court or that the parties be allowed to confront adverse witnesses to the claim of damages on the bond.—
There is no express requirement under the rule that the hearing be done in open court, or that the parties
be allowed to confront adverse witnesses to the claim of damages on the bond. The proper scope of the
hearing requirement was explained before Paramount in Peroxide Philippines Corp. v. Court of Appeals, thus:
. . . [It] is undeniable that 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.

Same; Same; Same; Same; It is indubitable that even a party who loses the action in main but is able to
establish a right to damages by reason of improper, irregular or excessive attachment may be entitled to
damages.—The language used in the 1997 revision of the Rules of Civil Procedure leaves no doubt that there
is no longer need for a favorable judgment in favor of the party against whom attachment was issued in order
that damages may be awarded. It is indubitable that even a party who loses the action in main but is able to
establish a right to damages by reason of improper, irregular, or excessive attachment may be entitled to
damages. This bolsters the notion that the claim for damages arising from such wrongful attachment may
arise and be decided separately from the merits of the main action.

Same; Same; Same; Same; 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; Interest should start
to accrue only from the moment it had been finally determined that the attachment was unlawful since it is
on that basis that the right to damages comes to existence.—The rule is thus well-settled that 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. The award of actual damages by the Court of Appeals is thus
proper in amount. However, we disagree that the rate of legal interest be counted from the date of the
“unlawful garnishment,” or on 27 June 1996. Properly, interest should start to accrue only from the moment
it had been finally determined that the attachment was unlawful, since it is on that basis that the right to
damages comes to existence. In this case, legal interest commences from the date the Court of Appeals
decision in CA-G.R. SP No. 39267 became final, by reason of its affirmation by this Court.
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Same; Same; Same; Same; Docket Fees; The application for damages on the attachment bond cannot be
independently set up but must be filed in the main case before the judgment therein becomes final and
executory; It is not chargeable with legal fees.—It is clear that under Section 20, Rule 57, the application for
damages on the attachment bond cannot be independently set up, but must be filed in the main case, before
the judgment therein becomes final and executory. Santo Tomas squarely applies in determining that no
certification against forum shopping was required in the Motion for Judgment on the Attachment Bond. The
same reasoning also sustains a ruling that neither legal fees were required for the filing of the said motion.
Section 1, Rule 141 of the Rules of Court provides that legal fees are prescribed upon the filing of the pleading
or other application which initiates an action or proceeding. Since the said application for judgment on the
attachment bond cannot be considered as an initiatory pleading, as it cannot be independently set up from
the main action, it is not likewise chargeable with legal fees. Carlos vs. Sandoval, 471 SCRA 266, G.R. No.
135830, G.R. No. 136035, G.R. No. 137743 September 30, 2005

Sps. Yu v. Ngo Yet Te

Civil Procedure; Attachments; In Malayan Insurance Company, Inc. v. Salas (90 SCRA 252 [1979]), we held
that if the surety was not given notice when the claim for damages against the principal in the replevin 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 surety’s replevin bond.—Even if it were
true that Visayan Surety was left in the proceedings a quo, such omission is not fatal to the cause of Spouses
Yu. In Malayan Insurance Company, Inc. v. Salas, 90 SCRA 252 (1979), we held that “x x x if the surety was not
given notice when the claim for damages against the principal in the replevin 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 surety’s replevin bond.” This remedy is applicable for the
procedures governing claims for damages on an attachment bond and on a replevin bond are the same.

Same; Same; The wrongfulness of the attachment does not warrant automatic award of damages to the
attachment defendant; the latter must first discharge the burden of proving the nature and extent of the loss
or injury by reason of the wrongful attachment.—That is a rather limited understanding of Javellana. The
counterclaim disputed therein was not for moral damages and therefore, there was no need to prove malice.
As early as in Lazatin v. Twaño, 2 SCRA 842 (1961), we laid down the rule that where there is wrongful
attachment, the attachment defendant may recover actual damages even without proof that the attachment
plaintiff acted in bad faith in obtaining the attachment. However, if it is alleged and established that the
attachment was not merely wrongful but also malicious, the attachment defendant may recover moral
damages and exemplary damages as well. Either way, the wrongfulness of the attachment does not warrant
the automatic award of damages to the attachment defendant; the latter must first discharge the burden of
proving the nature and extent of the loss or injury incurred by reason of the wrongful attachment.
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Same; Same; Damages; 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.—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 beof the kind which is not only capable of proof but must
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.

Attachments; Damages; As to moral and exemplary damages, to merit an award thereof, it must be shown
that the wrongful attachment was obtained by the attachment plaintiff with malice or bad faith, such as by
appending a false affidavit to his application.—As to moral and exemplary damages, to merit an award
thereof, it must be shown that the wrongful attachment was obtained by the attachment plaintiff with malice
or bad faith, such as by appending a false affidavit to his application.

Same; Same; Attorney’s Fees; As a rule, attorney’s fees cannot be granted, the exception however is when a
party incurred expenses to lift a wrongfully issued writ of attachment.—Attorney’s fees cannot be awarded
when moral and exemplary damages are not granted, the exception however is when a party incurred
expenses to lift a wrongfully issued writ of attachment. Without a doubt, Spouses Yu waged a protracted
legal battle to fight off the illegal attachment of their properties and pursue their claims for damages. It is
only just and equitable that they be awarded reasonable attorney’s fees in the amount of P30,000.00. Yu vs.
Ngo Yet Te, 514 SCRA 423, G.R. No. 155868 February 6, 2007

Preliminary Injunction
Bacolod City Water District v. Labayen
Actions; Pleadings and Practice; Injunction; The main action for injunction is distinct from the provisional or
ancillary remedy of preliminary injunction which cannot exist except only as part of an incident of an
independent action or proceeding.—Injunction is a judicial writ, process or proceeding whereby a party is
ordered to do or refrain from doing a certain act. It may be the main action or merely a provisional remedy
for and as an incident in the main action. 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
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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.

Same; Same; Same; Temporary Restraining Order; A restraining order is issued to preserve the status quo
until the hearing of the application for preliminary injunction which cannot be issued ex parte.—A restraining
order 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 the sheer force of law, no judicial declaration to that effect being necessary.

Same; Same; Same; Same; Non-Extendibility; The twenty (20)-day period provided by the Rules of Court
should be deemed incorporated in the Order where there is an omission to do so.—The rule against the non-
extendibility of the twenty (20)-day limited period of effectivity of a temporary restraining order is absolute
if issued by a regional trial court. The failure of respondent court to fix a period for the ordered restraint did
not lend the temporary restraining order a breath of semi-permanence which can only be characteristic of a
preliminary injunction. The twenty (20)-day period provided by the Rules of Court should be deemed
incorporated in the Order where there is an omission to do so. It is because of this rule on non-extendibility
that respondent City was prompted to move that hearings be set for its application of a preliminary
injunction. Respondent City cannot take advantage of this omission by respondent trial court. Bacolod City
Water District vs. Labayen, 446 SCRA 110, G.R. No. 157494 December 10, 2004

China Banking Corp. v. Co

Injunctions; Preliminary Injunction; It is settled that the grant of a preliminary mandatory injunction rests on
the sound discretion of the court.—It is settled that the grant of a preliminary mandatory injunction rests on
the sound discretion of the court, and the exercise of sound judicial discretion by the lower court should not
be interfered with except in cases of manifest abuse. It is likewise settled that a court should avoid issuing a
writ of preliminary mandatory injunction which would effectively dispose of the main case without trial.

Same; Same; Since a preliminary mandatory injunction commands the performance of an act, it does not
preserve the status quo and is thus more cautiously regarded than a mere prohibitive injunction.—Since a
preliminary mandatory injunction commands the performance of an act, it does not preserve the status quo
and is thus more cautiously regarded than a mere prohibitive injunction. Accordingly, the issuance of a writ
of preliminary mandatory injunction is justified only in a clear case, free from doubt or dispute. When the
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complainant’s right is thus doubtful or disputed, he does not have a clear legal right and, therefore, the
issuance of injunctive relief is improper.

Injunctions; Preliminary Injunction; The absence of a showing that the petitioners have an urgent and
paramount need for a writ of preliminary mandatory injunction to prevent irreparable damage, they are not
entitled to such writ.—While petitioners correctly argue that certain requirements must be observed before
encumbrances, in this case the condition of the lot’s registration as being subject to the law, may be
discharged and before road lots may be appropriated gratuity assuming that the lot in question was indeed
one, TCT Nos. 247778-R and 269758-R enjoy the presumption of regularity and the legal requirements for
the removal of the memorandum annotated on TCT No. 185702-R are presumed to have been followed. At
all events, given the following factual observations of the trial court after conducting an ocular inspection of
Lot 3783-E, viz.: “x x x The ocular inspection showed that [petitioners] will not lose access to their residences.
As a matter of fact, lot 3783-E is not being used as an access road to their residences and there is an existing
secondary road within St. Benedict Subdivision that serves as the main access road to the highway. With
respect to the blocking of ventilation and light of the residence of the Sps. Castro, suffice it to state that they
are not deprived of light and ventilation. The perimeter wall of the defendants is situated on the left side of
the garage and its front entrance is still open and freely accessible,” and the absence of a showing that
petitioners have an urgent and paramount need for a writ of preliminary mandatory injunction to prevent
irreparable damage, they are not entitled to such writ. Arbias vs. Republic, 565 SCRA 600, G.R. No. 174569
September 17, 2008

Estares v. CA
Same; Injunction; Injunction is a preservative remedy for the protection of substantive rights or interests—it
is not a cause of action in itself but merely a provisional remedy, an adjunct to a main suit.—Generally,
injunction is a preservative remedy for the protection of substantive rights or interests. It is not a cause of
action in itself but merely a provisional remedy, an adjunct to a main suit. The controlling reason for the
existence of the judicial power to issue the writ is that the court may thereby prevent a threatened or
continuous irremediable injury to some of the parties before their claims can be thoroughly investigated and
advisedly adjudicated. It is to be resorted to only when there is a pressing necessity to avoid injurious
consequences which cannot be remedied under any standard of compensation. The application of the writ
rests upon an alleged existence of an emergency or of a special reason for such an order before the case can
be regularly heard, and the essential conditions for granting such temporary injunctive relief are that the
complaint alleges facts which appear to be sufficient to constitute a cause of action for injunction and that
on the entire showing from both sides, it appears, in view of all the circumstances, that the injunction is
reasonably necessary to protect the legal rights of plaintiff pending the litigation.

Same; Same; To be entitled to an injunctive writ, the petitioner must show, inter alia, the existence of a clear
and unmistakable right and an urgent and paramount necessity for the writ to prevent serious damage.—
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The Estares spouses had the burden in the trial court to establish the following requirements for them to be
entitled to injunctive relief: (a) the existence of their right to be protected; and (b) that the acts against which
the injunction is to be directed are violative of such right. To be entitled to an injunctive writ, the petitioner
must show, inter alia, the existence of a clear and unmistakable right and an urgent and paramount necessity
for the writ to prevent serious damage. Thus, an injunctive remedy may only be resorted to when there is a
pressing necessity to avoid injurious consequences which cannot be remedied under any standard
compensation.
Same; Same; Evidence; The assessment and evaluation of evidence in the issuance of the writ of preliminary
injunction involve findings of facts ordinarily left to the trial court for its conclusive determination.—It must
be stressed that the assessment and evaluation of evidence in the issuance of the writ of preliminary
injunction involve findings of facts ordinarily left to the trial court for its conclusive determination. As such,
a trial court’s decision to grant or to deny injunctive relief will not be set aside on appeal unless the court
abused its discretion. In granting or denying injunctive relief, a court abuses its discretion when it lacks
jurisdiction, fails to consider and make a record of the factors relevant to its determination, relies on clearly
erroneous factual findings, considers clearly irrelevant or improper factors, clearly gives too much weight to
one factor, relies on erroneous conclusions of law or equity, or misapplies its factual or legal conclusions.
Estares vs. Court of Appeals, 459 SCRA 604, G.R. No. 144755 June 8, 2005

Buyco v. Baraquia
Actions; Injunction; Preliminary injunction is merely a provisional remedy, adjunct to the main case subject
to the latter’s outcome—it is not a cause of action in itself; The writ of preliminary injunction is provisional
because it constitutes a temporary measure availed of during the pendency of the action and it is ancillary
because it is a mere incident in and is dependent upon the result of the main action.—A writ of 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 is merely a provisional
remedy, adjunct to the main case subject to the latter’s outcome. It is not a cause of action in itself. Being an
ancillary or auxiliary remedy, it is available during the pendency of the action which may be resorted to by a
litigant to preserve and protect certain rights and interests therein pending rendition, and for purposes of
the ultimate effects, of a final judgment in the case. The writ is provisional because it constitutes a temporary
measure availed of during the pendency of the action and it is ancillary because it is a mere incident in and
is dependent upon the result of the main action.

Same; Same; It is well-settled that the sole object of a preliminary injunction, whether prohibitory or
mandatory, is to preserve the status quo until the merits of the case can be heard.—It is well-settled that the
sole object of a preliminary injunction, whether prohibitory or mandatory, is to preserve the status quo until
the merits of the case can be heard. It is usually granted when it is made to appear that there is a substantial
controversy between the parties and one of them is committing an act or threatening the immediate
commission of an act that will cause irreparable injury or destroy the status quo of the controversy before a
full hearing can be had on the merits of the case.
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Same; Same; A writ of preliminary injunction is deemed lifted where the case in which it had been issued had
been heard and found dismissible, as it was in fact dismissed—a dismissal, discontinuance or non-suit of an
action in which a restraining order or temporary injunction has been granted operates as a dissolution of the
restraining order or temporary injunction, regardless of whether the period for filing a motion for
reconsideration of the order dismissing the case or appeal therefrom has expired.—The present case having
been heard and found dismissible as it was in fact dismissed, the writ of preliminary injunction is deemed
lifted, its purpose as a provisional remedy having been served, the appeal therefrom notwithstanding.
Unionbank v. Court of Appeals, 311 SCRA 795 (1999) enlightens: “x x x a dismissal, discontinuance or non-
suit of an action in which a restraining order or temporary injunction has been granted operates as a
dissolution of the restraining order or temporary injunction,” regardless of whether the period for filing a
motion for reconsideration of the order dismissing the case or appeal therefrom has expired. The rationale
therefor is that even in cases where an appeal is taken from a judgment dismissing an action on the merits,
the appeal does not suspend the judgment, hence the general rule applies that a temporary injunction
terminates automatically on the dismissal of the action.” The lower court’s citation of Lee v. Court of Appeals
is misplaced. In Lee, unlike in the present case, the original complaint for specific performance and
cancellation of real estate mortgage was not yet decided on the merits by the lower court. Thus, the
preliminary injunction therein issued subsisted pending appeal of an incident. Buyco vs. Baraquia, 608 SCRA
699, G.R. No. 177486 December 21, 2009

Brocka v. Enrile
Criminal Procedure; Injunction; Instances when criminal prosecution may be stopped by the courts.—Indeed,
the general rule is that criminal prosecution may not be restrained or stayed by injunction, preliminary or
final. There are however exceptions, among which are: "a. To afford adequate protection to the
constitutional rights of the accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95); "b.
When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions
(Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383,
May 27, 1981, 104 SCRA 607); "c. When there is a pre-judicial question which is sub judice (De Leon vs.
Mabanag, 70 Phil. 202); "d. When the acts of the officer are without or in excess of authority (Planas vs. Gil,
67 Phil. 62); "e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty,
33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389); "f. When double jeopardy is clearly apparent
(Sangalang vs. People and Avendia, 109 Phil. 1140); "g. Where the court has no jurisdiction over the offense
(Lopez vs. City Judge, L-25795, October 29, 1966, 18 SCRA 616); "h. Where it is a case of persecution rather
than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960); "i. Where the charges are
manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J. [1953], cited in Rañoa vs.
Alvendia, CA-G.R. No. 30720-R, October 8,1962; Cf. Guingona, et al. vs. City Fiscal, L60033, April 4,1984,128
SCRA 577); and "j. When there is clearly no prima facie case against the accused and a motion to quash on
that ground has been denied (Salonga vs. Paño, et al., L-59524, February 18, 1985, 134 SCRA 438). "7.
Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of
petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1953)."
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Same; Same; Criminal prosecution may be stopped if preliminary investigation conducted hastily.—We,
therefore, rule that where there is manifest bad faith that accompanies the filing of criminal charges, as in
the instant case where Brocka, et al. were barred from enjoying provisional release until such time that
charges were filed, and where a sham preliminary investigation was hastily conducted, charges that are filed
as a result should lawfully be enjoined. Brocka vs. Enrile, 192 SCRA 183, G.R. Nos. 69863-65 December 10,
1990

Medina v. Greenfield Development

Actions; Injunctions; The purpose of a preliminary injunction is to prevent threatened or continuous
irremediable injury to some of the parties before their claims can be thoroughly studied and adjudicated.—
The purpose of a preliminary injunction is to prevent threatened or continuous irremediable injury to some
of the parties before their claims can be thoroughly studied and adjudicated. Its sole aim is to preserve the
status quo until the merits of the case can be heard fully. Thus, to be entitled to an injunctive writ, the
petitioner has the burden to establish the following requisites: (1) a right in esse or a clear and unmistakable
right to be protected; (2) a violation of that right; (3) that there is an urgent and permanent act and urgent
necessity for the writ to prevent serious damage.

Same; Same; Where the complainant’s right or title is doubtful or disputed, injunction is not proper.—
Petitioners’ entitlement to the injunctive writ hinges on their prima facie legal right to the properties subject
of the present dispute. The Court notes that the present dispute is based solely on the parties’ allegations in
their respective pleadings and the documents attached thereto. We have on one hand, petitioners’ bare
assertion or claim that they are co-owners of the properties sold by their predecessors to respondent, and
on the other, respondent’s claim of ownership supported by deeds of conveyances and torrens titles in their
favor. From these alone, it is clear that petitioners failed to discharge the burden of clearly showing a clear
and unmistakable right to be protected. Where the complainant’s right or title is doubtful or disputed,
injunction is not proper. The possibility of irreparable damage without proof of actual existing right is not a
ground for an injunction.

Same; Same; Courts should avoid issuing a writ of preliminary injunction, which in effect, would dispose of
the main case without trial.—Equally pertinent is the rule that courts should avoid issuing a writ of
preliminary injunction, which in effect, would dispose of the main case without trial. The ground relied upon
by the trial court in issuing the writ of preliminary injunction in this case is its doubt over the acquisition of
the properties by respondent. Such basis would be virtually recognizing petitioners’ claim that the deeds of
conveyances and the titles are a nullity without further proof, to the detriment of the doctrine of
presumption of validity in favor of these documents. There would, in effect, be a prejudgment of the main
case and a reversal of the rule on the burden of proof since it would assume the proposition which the
 REMEDIAL LAW REVIEW | Hao

petitioners are inceptively duty bound to prove. Medina vs. Greenfield Development Corporation, 443 SCRA
150, G.R. No. 140228 November 19, 2004

Receveirship
National Investment Development Corp. v. Judge Aquino
Same; Same; Same; Receivership; A receiver of property subject of the action may be appointed by the court
when the party applying for the appointment of a receiver has an interest in said property.—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 that the party applying for the appointment of receiver has an interest in said property.
The right, interest, or claim in property, to entitle one to a receiver over it, must be present and existing.

Same; Same; Same; Same; Prevention of imminent danger to property, the guiding principle that governs
courts in appointing receivers.—Moreover, the prevention of imminent danger to property is the guiding
principle that governs courts in the matter of appointing receivers. Under Sec. l(b), Rule 59 of the Rules of
Court, it is necessary in granting the relief of receivership that the property or fund be in danger of loss,
removal or material injury. In the case at bar, Batjak in its petition for receivership, or in its amended petition
therefor, failed to present any evidence to establish the requisite condition that the property is in danger of
being lost, removed or materially injured unless a receiver is appointed to guard and preserve it. National
Investment and Development Corp. vs. Aquino, 163 SCRA 153, No. L-34192, No. L-34213 June 30, 1988

Traders Royal Bank v. IAC

Same; Receivership; 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.—It is, therefore, clear that 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 TRB’s
compensation to be charged solely against the funds under its receivership is without legal justification;
hence, it was correctly reversed by the Court of Appeals. Traders Royal Bank vs. Intermediate Appellate Court,
273 SCRA 521, G.R. No. 111357 June 17, 1997
 REMEDIAL LAW REVIEW | Hao

Replevin
Yang v. Valdez
Civil Procedure; Provisional Remedies; Replevin; Replevin Bond; It is not indispensably necessary that the
obligation of a bond be secured or supported by cash or personal or real property or the obligation of a surety
other than the person giving the bond.—A bond that is required to be given by law is commonly understood
to refer to an obligation or undertaking in writing that is sufficiently secured. It is not indispensably necessary,
however, that the obligation of the bond be secured or supported by cash or personal property or real
property or the obligation of a surety other than the person giving the bond. Most generally understood, a
“bond” is an obligation reduced to writing binding the obligor to pay a sum of money to the obligee under
specified conditions. At common law, a bond was merely a written obligation under seal. A bond is often, as
a commercial matter, secured by a mortgage on real property; the mortgagee may be the obligee, although
the mortgagee may also be a third party surety whose personal credit is added to that of the principal obligor
under the bond.

Same; Same; Same; Same; The applicant for a replevin writ need not be holder of the legal title to the
property, it is sufficient that he is entitled to the possession thereof at the time of application.—Petitioner
also contends that since the respondent spouses are not the registered owners of the cargo trucks involved,
the writ of replevin should not have been issued. We do not think so. The provisional remedy of replevin is
in the nature of a possessory action and the applicant who seeks immediate possession of the property
involved need not be holder of the legal title to the property. It suffices, if at the time he applies for a writ of
replevin, he is, in the words of Section 2, Rule 60, “entitled to the possession thereof.”

Same; Same; Same; Same; Failure of a replevin bond to state expressly that it was conditioned for the return
of the property to the defendant if the return thereof be adjudged is not fatal to the validity of such replevin
bond.—Further, the failure of the replevin bond to state expressly that it was “conditioned for the return of
the property to the defendant, if the return thereof be adjudged,” is not fatal to the validity of the replevin
bond. The replevin bond put up by Milagros Morante and Bayani L. Calonzo stated that it was given “under
the condition that [they] will pay all the costs, which may be adjudged to the said defendants and all damages
which said defendants may sustain by reason of the order of replevin, if the court shall finally adjudge that
the plaintiffs were not entitled thereto.” We believe that the condition of the bond given in this case
substantially complied with the requirement of Section 2, Rule 60. Moreover, the provisions of Rule 60,
Section 2 of the Revised Rules of Court under which the replevin bond was given may be regarded as having
become part of the bond and as having been imported thereunto. All the particular conditions prescribed in
Section 2, Rule 60, although not written in the bond in printer’s ink, will be read into the bond in determining
the scope and content of the liability of the sureties or bondsmen under that bond.

Same; Same; Same; Redelivery Bond; The prescriptive periods given to a defendant in a replevin suit under
Secs. 5 & 6 of Rule 160 to demand return of possession of the property by filing a redelivery bond is
mandatory; Petitioner’s counter-bond was filed out of time, hence, the trial court did not err in disapproving
 REMEDIAL LAW REVIEW | Hao

it.—A defendant in a replevin suit may demand return of possession of the property replevied by filing a
redelivery bond within the periods specified in Sections 5 and 6 of Rule 60. x x x Under Section 5, petitioner
may “at any time before the delivery of the property to the plaintiff” require the return of the property; in
Section 6, he may do so, “within five (5) days after the taking of the property by the officer.” Both these
periods are mandatory in character. Thus, a lower court which approves a counter-bond filed beyondthe
statutory periods, acts in excess of its jurisdiction. In the instant case, the cargo trucks were taken into
custody by the Sheriff on 7 January 1985. Petitioner Yang’s counter-replevin bond was filed on 25 January
1985. x x x We agree with the conclusion of respondent judge that petitioner’s right to file a counterbond
had already prescribed. Yang vs. Valdez, 177 SCRA 141, G.R. No. 73317 August 31, 1989

Adoma v. Gatcheco
Same; Same; Same; Replevin; Where the adverse party did not object to the complainant’s 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.—As correctly found by the OCA, 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 togive the whole amount he promised. Since the adverse party did not
object to the complainant’s 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 of the 1997 Revised Rules of Civil Procedure which provides—SEC. 6. Disposition of property by
sheriff.—If within five (5) days after the taking of the property by the sheriff, 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 applicant’s 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 sheriff must return it to the adverse party. (6a) Adoma v.
Gatcheco, 448 SCRA 299, A.M. No. P-05-1942 (OCA-IPI No. 03-1580-P) January 17, 2005

Paat v. CA
Remedial Law; Replevin; Under the Rules of Court, it is indispensable in replevin proceeding that the plaintiff
must show by his own affidavit that he is entitled to the possession of property, that the property is
wrongfully detained by the defendant, alleging the cause of detention, that the same has not been taken for
tax assessment, or seized under execution, or attachment, or if so seized, that it is exempt from such seizure,
and the actual value of the property.—It is worth stressing at this point, that a suit for replevin is founded
solely on the claim that the defendant wrongfully withholds the property sought to be recovered. It lies to
recover possession of personal chattels that are unlawfully detained. “To detain” is defined as to mean “to
hold or keep in custody,” and it has been held that there is tortious taking whenever there is an unlawful
 REMEDIAL LAW REVIEW | Hao

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. Under the Rules of Court, it is indispensable
in replevin proceeding that the plaintiff must show by his own affidavit that he is entitled to the possession
of property, that the property is wrongfully detained by the defendant, alleging the cause of detention, that
the same has not been taken for tax assessment, or seized under execution, or attachment, or if so seized,
that it is exempt from such seizure, and the actual value of the property. Private respondents miserably failed
to convince this Court that a wrongful detention of the subject truck obtains in the instant case. It should be
noted that the truck was seized by the petitioners because it was transporting forest products without the
required permit of the DENR in manifest contravention of Section 68 of P.D. 705 as amended by E.O. 277.
Section 68-A of P.D. 705, as amended, unquestionably warrants the confiscation as well as the disposition by
the Secretary of DENR or his duly authorized representatives of the conveyances used in violating the
provision of forestry laws. Evidently, the continued possession or detention of the truck by the petitioners
for administrative forfeiture proceeding is legally permissible, hence, no wrongful detention exists in the case
at bar. Paat vs. Court of Appeals, 266 SCRA 167, G.R. No. 111107 January 10, 1997

Citibank v. CA
Property; Replevin; There is substantial compliance with the rule requiring that an affidavit of merit 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.—Petitioner is correct insofar as it contends
that substantial compliance with the affidavit requirement may be permissible. There is substantial
compliance with the rule requiring that an affidavit of merit 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. On the matter of replevin, Justice Vicente Francisco’s Comment on the
Rules of Court, states: “Although the better practice is to keep the affidavit and pleading separate, if plaintiff’s
pleading contains a statement of every fact which the statute requires to be shown in the affidavit, and the
pleading is verified by affidavit covering every statement therein, this will be sufficient without a separate
affidavit; but in no event can the pleading supply the absence of the affidavit unless all that the affidavit is
required to contain is embodied in the pleading, and the pleading is verified in the form required in the case
of a separate affidavit.” (77 CJS 65 cited in Francisco, Rules of Court of the Philippines, Vol. IV-A, p. 383)
Citibank, N.A. vs. Court of Appeals, 304 SCRA 679, G.R. No. 61508 March 17, 1999

Smart Communications v. Regina Astorga

Actions; Provisional Remedies; Replevin; Words and Phrases; Replevin is an action whereby the owner or
person entitled to repossession of goods or chattels may recover those goods or chattels from one who has
wrongfully distrained or taken, or who wrongfully detains such goods or chattels; The term may refer either
to the action itself, for the recovery of personality, 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
 REMEDIAL LAW REVIEW | Hao

the action.—Replevin is an action whereby the owner or person entitled to repossession of goods or chattels
may recover those goods or chattels from one who has wrongfully distrained or taken, or who wrongfully
detains such goods or chattels. It 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.
Smart Communications, Inc. vs. Astorga, 542 SCRA 434, G.R. No. 148132, G.R. No. 151079, G.R. No. 151372
January 28, 2008

Support pendente lite

Reyes v. Ines-Luciano
Support; Adultery of wife as a defense to action for support pendente lite must be established by competent
evidence.—It is true that the adultery of the wife is a defense in an action for support. However, the alleged
adultery of the wife must be established, by competent evidence. The mere allegation that the wife has
committed adultery will not bar her from the right to receive support pendente lite. Adultery is a good
defense and if properly proved and sustained will defeat the action.

Same; Factors considered in award of support pendente lite.—In determining the amount to be awarded as
support pendente lite, it is not necessary to go fully into the merits of the case, it being sufficient that the
court ascertain the kind and amount of evidence which it may deem sufficient to enable it to justly resolve
the application, one way or the other, in view of the merely provisional character of the resolution to be
entered. Mere affidavits may satisfy the court to pass upon the application for support pendente lite. It is
enough that the facts be established by affidavits or other documentary evidence appearing in the record.

Same; Award of P4, 000 a month as support pendente lite held reasonable.—Considering the high cost of
living due to inflation and the financial ability of the petitioner as shown by the documents of record, We
find that the amount of P4, 000.00 a month granted by the respondent Judge as alimony pendente lite to the
private respondent is not excessive. There is no showing that the respondent Judge was committed a grave
abuse of discretion in granting said support. Reyes vs. Ines-Luciano, 88 SCRA 803, No. L-48219 February 28,
1979

Lam v. Chua
Civil Law; Support; Provisional Character; Judgment for support does not become final.—. . . Judgment for
support does not become final. The right to support is of such nature that its allowance is essentially
provisional; for during the entire period that a needy party is entitled to support, his or her alimony may be
 REMEDIAL LAW REVIEW | Hao

modified or altered, in accordance with his increased or decreased needs, and with the means of the giver.
It cannot be regarded as subject to final determination.

Same; Same; Evidence; It is incumbent upon the trial court to base its award of support on the evidence
presented before it.—It is incumbent upon the trial court to base its award of support on the evidence
presented before it. The evidence must prove the capacity or resources of both parents who are jointly
obliged to support their children as provided for under Article 195 of the Family Code; and the monthly
expenses incurred for the sustenance, dwelling, clothing, medical attendance, education and transportation
of the child. Lam vs. Chua, 426 SCRA 29, G.R. No. 131286 March 18, 2004