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This document discusses provisional remedies under Philippine law. It defines provisional remedies as temporary auxiliary remedies available to litigants to protect their rights while the main case is pending. The document lists common provisional remedies like preliminary attachment, preliminary injunction, receivership, replevin, and support pendente lite. It explains that provisional remedies preserve the rights of parties or the subject matter of the case until judgment is rendered in the principal action.
This document discusses provisional remedies under Philippine law. It defines provisional remedies as temporary auxiliary remedies available to litigants to protect their rights while the main case is pending. The document lists common provisional remedies like preliminary attachment, preliminary injunction, receivership, replevin, and support pendente lite. It explains that provisional remedies preserve the rights of parties or the subject matter of the case until judgment is rendered in the principal action.
This document discusses provisional remedies under Philippine law. It defines provisional remedies as temporary auxiliary remedies available to litigants to protect their rights while the main case is pending. The document lists common provisional remedies like preliminary attachment, preliminary injunction, receivership, replevin, and support pendente lite. It explains that provisional remedies preserve the rights of parties or the subject matter of the case until judgment is rendered in the principal action.
and ancillary remedies available to a litigant for
the protection and preservation of his rights while the main action is pending. (Riano, Civil Procedure, 2009 Ed.) Writs and processes which are not main actions and they presuppose the existence of a principal action. The word Provisional Remedy is suggestive. It is something temporary. Provisional Remedies are remedies which are temporary and is defined by the Supreme Court as remedies which parties may resort for the preservation or protection of their rights and interests and for no other purpose, during the pendency of the principal action. So these are the remedies resorted to just to preserve the rights of the parties while the case is pending. The FOLLOWING are the provisional remedies provided for in the Rules of Court: 1. Preliminary Attachment (Rule 57) 2. Preliminary Injunction (Rule 58) 3. Receivership (Rule 59) 4. Replevin or delivery of private property (Rule 60) 5. Support Pendente Lite (Rule 61) These provisional remedies are also available in criminal cases (Rule 127), and in some special civil actions and special proceedings. Purpose of Provisional Remedies: Provisional remedies are resorted to by litigants for any of the following reasons: 1. To preserve or protect their rights or interest while the main action is pending; 2. To secure the judgment; 3. To preserve the status quo; or 4. To preserve the subject matter of the action. OTHER PROVISIONAL REMEDIES A. Issued by a family court 1. Temporary Custody of Minor Children 2. Order allowing Visitation Rights of Parents B. Interim Reliefs in a Petition for a Writ of Amparo 1. Temporary Protection Order 2. Inspection Order 3. Production Order 4. Witness Protection Order Note: PD 1818 prohibits the issuance of injunctive writs not only against government entities but also against any person or entity involved in the execution, implementation, and operation of government infrastructure projects.
Inferior courts can grant all appropriate
provisional remedies, provided the main case is within its jurisdiction (Sec. 33 [1] BP 129) RULE 57 PRELIMINARY ATTACHMENT
Preliminary attachment is a provisional
remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so that it may be held as security for the satisfaction of whatever judgment may be rendered in the case (Davao Light and Power, Inc. vs. CA, 204 SCRA 343). Section 1. Grounds upon which attachment may issue.
At the
commencement of the action or at any
time before entry of judgment, a plaintif or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (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 quasidelict against a party who is about to depart from the Philippines which intent to defraud his creditors; (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 other person in a fiduciary capacity, or for a willful violation of duty; (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; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (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) The proper party may have the property of the adverse party attached at the commencement of the action or at any time before entry of judgment. When issued: (REPoGReS) 1. In actions for Recovery of a specified sum of money or damages, except moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasidelict against a party about to depart from the Philippines with intent to defraud his creditors; Cases: K.O. GLASS CONST. CO. vs. VALENZUELA, 116 SCRA 563 - mere allegation that the defendant is a foreigner is insufficient. There being no showing that the defendants are about to depart from the Philippines with intent to defraud their creditor, or that they are non-resident aliens, the attachment of their properties is not justified. GENERAL vs. DE VENECIA, 78 Phil. 780 - On the question of validity of the attachment, "the GENERAL RULE is that, unless the statute expressly so provides, the remedy by attachment is not available in respect to a demand which is not due and payable, and if an attachment is issued upon such a demand without statutory authority it is void."
It must be observed that under our rules
governing the matter the person seeking a preliminary attachment must show that "a sufficient cause of action exists" and that the amount due him is as much as the sum for which the order of attachment is granted" (sec. 3, Rule 59). Inasmuch as the commitment of Luis F. General has not as yet become demandable, there existed no cause of action against him, and the complaint should have been dismissed and the attachment lifted. INSULAR SAVINGS BANK vs. CA, 460 SCRA 122 writ of preliminary attachment cannot be issued for moral and exemplary and other unliquidated or contingent claims. 2.
In actions for money or property Embezzled or
fraudulently misapplied or converted to his own use by a public officer, or an officer of a corp., or an attorney, factor, broker, agent or clerk, in the course of his Hence, a sheriff has no authority to levy on execution upon the property of any person other than that of the judgment debtor. If he does so, the writ of execution affords him no justification, for such act is not in obedience to the mandate of the writ. As long as the sheriff confines his acts to the authority of the process, he is not liable, but all of his acts which are not justified by the writ are without authority of law. This is so because if an execution against one man would excuse the sheriff for taking the property of another, every citizen would be at his mercy and none could call his estate his own.
BALANTES vs. OCAMPO III, 242 SCRA 327 The
rule is that when a writ is placed in the hands of a sheriff, it is his duty, in the absence of instructions, to proceed with reasonable celerity and promptness to execute it according to its mandate. He may not apply his discretion as to whether to execute it or not. ELIPE vs. FABRE, 241 SCRA 249 Indeed, as clearly stated in the Manual for Clerks of Court, a sheriff, to whom a valid writ or process is delivered to be levied upon a property within his jurisdiction, is liable to the person in whose favor the process or writ runs if he fails to make a levy upon property owned by the judgment debtor within his jurisdiction and by reason thereof the judgment creditor is injured. It is omission not dependent upon intentional wrong or negligent omission to seize property of judgment debtor. NBI vs. TULIAO, MARCH 24, 1997 Clearly, respondent's act of leaving the passenger jeep in the possession and control of the creditor did not satisfy the foregoing requirements of the Rules; neither did it conform to the plainly worded RTC order. The note in the receipt that imposed on Ignacio the obligation to produce the same whenever required by the court was no compliance either, because it did not establish that the property was in respondent sheriff's substantial presence and possession. Respondent fell short of his obligation to take and safely keep the attached property "in his capacity." He cannot feign ignorance of this duty as he himself correctly cited an early decision of this Court explaining a sheriff's duty in attachment, as follows:
. . . A verbal declaration of seizure or
service of a writ of attachment is not sufficient. There must be an actual taking of possession and placing of the attached property under the control of the officer or someone representing him. (Hollister vs. Goodale, 8 Conn., 332, 21 Am. Dec., 674; Jones vs. Howard, 99 Ga., 451, 59 Am. St. Rep., 231.)
ROQUE vs. COURT OF APPEALS, 93 SCRA 540
Constructive possession should be held sufficient where actual possession is not feasible, particularly when it was followed up by the actual seizure of the property as soon as that could possibly be effected. In case of a vessel, levy is constructively made by the registration of the same with the Philippine Coast Guard. SUMMIT TRADING vs. AVENDANO, 135 SCRA 397 It is true that Saquilayan is not among the persons mentioned in Section 13. However, she, being under the control of Summit Trading, has not explained what she has done with the summons and complaint. The logical assumption is that she delivered it to her boss, the president of Summit Trading. As already stated, she received a copy of the decision and Summit Trading became aware of it. Under the facts of this case, Saquilayan, being the secretary of the president (whose contact with the outside world is normally through his secretary), may be regarded as an "agent" within the meaning of section 13. Hence summons was validly served upon Summit Trading. CHEMPHIL EXPORT & IMPORT vs. CA, 251 SCRA 286 A secretary's major function is to assist his or her superior. He/she is in effect an extension of the latter. Obviously, as such, one of her duties is to receive letters and notices for and in behalf of her superior, as in the case at bench. The notice of garnishment was addressed to and was actually received by Chemphil's president through his secretary who formally received it for him. Thus, in one case, we ruled that the secretary of the president may be considered an "agent" of the corporation and held that service of summons on him is binding on the corporation. Note: Summit and Chemphil rulings have been amended by the 1997 Rules of Civil Procedure. Section 11 of Rule 14 provides: Sec. 11. Service upon domestic private juridical entity. When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.
TAYABAS LAND CO. vs. SHARRUF, 41 PHIL. 382
A judgment for a sum of money is, as to the party entitled to payment, a credit; and as to the party who ought to pay the money, a debt. Furthermore, the interest of the creditor in such a judgment is clearly property, though not capable of manual delivery. Debts, credits, and other property not capable of manual delivery are to be dealt with in a different manner from that prescribed in case of the execution of tangible property; for while tangible property is proceeded with by seizure and sale under execution, debts and credits are to be attached by the citation of the debtor. The proceeding thus indicated as proper, in order to subject a debt or credit is known in American civil procedure as the process of garnishment;
and it may be truly said that garnishment is one
of the simplest processes, and the least involved in technicalities, of any proceeding known to the law. It consists in the citation of some stranger to the litigation, who is debtor to one of the parties to the action. By this means such debtor stranger becomes a forced intervenor; and the court, having acquired jurisdiction over his person by means of the citation, requires him to pay his debt, not to his former creditor, but to the new creditor, who is creditor in the main litigation. It is merely a case of involuntary novation by the substitution of one creditor for another. Upon principle the remedy is a species of attachment or execution for reaching any property pertaining to a judgment debtor which may be found owing to such debtor by a third person. Section 8. Effect of attachment of debts, credits and all other similar personal property. All persons having in their possession or under their control any credits or other similar personal property belonging to the party against whom attachment is issued, or owing any debts to him, at the time of service upon them of the copy of the writ of attachment and notice as provided in the last preceding section, shall be liable to the applicant for the amount of such credits, debts or other similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is delivered or transferred, or such debts are paid, to the clerk, sherif, or other proper officer of the court issuing the attachment.
It is not necessary to serve summons upon the
garnishee in order that the trial court may acquire jurisdiction. All that is necessary is the service upon him of the writ of garnishment