RULES 57 TO 61: PROVISIONAL REMEDIES (AIRRS) The stay of execution shall be upon such terms as to bond or otherwise

as may be considered proper for the security or protection of the rights of

The first fundamental characteristic of provisional remedies is that they
are contingent or dependent on the principal action, thats why they are
called provisional. Therefore, there can be no provisional remedy if there
is no principal action. Remove the principal action and the provisional
remedy will die a natural death.
Provisional Remedy Principal Action Notes
the adverse party.
Which court has jurisdiction over provisional remedies? That court
having jurisdiction over the principal action likewise has jurisdiction
over the provisional remedies, precisely because the provisional remedy
cannot survive without being attached to a principal action. General
rule: It can be the RTC or MTC.

Preliminary Recovery of either real There are 3 recovery Exceptions:

attachment or personal property actions: accion
reivindicatoria, accion 1. Since support pendente lite is attached to the principal action of
publiciana and accion support, which is an action not capable of pecuniary estimation, it is
interdictal cognizable only by the RTC.

Preliminary Injunction Where do you find the 2. In criminal cases, according to Rule 111, when you file a criminal
injunction action for injunction? case, the civil aspect is deemed instituted within.
Section 4 of Rule 39*
In a case of seduction, cognizable by MTC, and the seduction produced a
Receivership (is Appointment of a Take note of this child, the petitioner files together with seduction, the civil aspect of
actually the principal receiver (is actually mistake acknowledgement of a child and asking for support with prayer for
action) the provisional support pendent lite. The petition for support pendente lite is cognizable
remedy) by the MTC.

Replevin Recovery of Replevin is the Jurisprudence tells us that there is no injunctive relief before the SC or
possession of personal immediate recovery of CA as an original action. So jurisdiction of injunction is only with the
property possession of personal RTC.
property
Sandiganbayan may have jurisdiction over provisional remedies.
Support pendente lite Support
Another characteristic of provisional remedies: When you avail of any
* Rule 39, Section 4. Judgments not stayed by appeal. Judgments in provisional remedy, you are exempted from the barangay conciliation
actions for injunction, receivership, accounting and support, and such proceeding.
other judgments as are now or may hereafter be declared to be
immediately executory, shall be enforceable after their rendition and How can one avail of the writ of these provisional remedies? 2
shall not, be stayed by an appeal taken therefrom, unless otherwise fundamental requirements: (1) affidavit of merits (under Rule 37); and (2)
ordered by the trial court. On appeal therefrom, the appellate court in its bond.
discretion may make an order suspending, modifying, restoring or
granting the injunction, receivership, accounting, or award of support. Exception: In support pendente lite, affidavit and bond are not required.
Only the verified complaint is required.

1 GING
How do you discharge the writ in these provisional remedies? 2
modes: (1) counterbond; or (2) motion questioning the regularity or
propriety of the issuance.
Can these writs be granted ex parte?
General rule: No, there must always be notice and hearing.
Exception:
(1) the writ may be granted ex parte in support pendente lite
(2) in preliminary attachment, it may be issued ex parte but can never
be implemented without notice and hearing. There are 3 stages in
preliminary attachment (see Mangila vs CA): (1) issuance of the
order granting the preliminary attachment; (2) issuance of the writ;
and (3) implementation of the writ. The last stage requires the
court to have notice and hearing and jurisdiction.
The last issue would be on damages. Section 20 of Rule 57 is important
because you apply that in other provisional remedies.
Section 20. Claim for damages on account of improper, irregular or excessive
attachment. An application for damages on account of improper,
irregular or excessive attachment must be filed before the trial or before
appeal is perfected or before the judgment becomes executory, with due
notice to the attaching party and his surety or sureties setting forth the
facts showing his right to damages and the amount thereof. Such
damages may be awarded only after proper hearing and shall be
included in the judgment on the main case.
If the judgment of the appellate court be favorable to the party against
whom the attachment was issued he must claim damages sustained
during the pendency of the appeal by filing an application in the
appellate court, with notice to the party in whose favor the attachment
was issued or his surety or sureties, before the judgment of the appellate
court becomes executory. The appellate court may allow the application
to be heard and decided by the trial court.
Nothing herein contained shall prevent the party against whom the
attachment was issued from recovering in the same action the damages
awarded to him from any property of the attaching party not exempt
2 GING
from execution should the bond or deposit given by the latter be
insufficient or fail to fully satisfy the award.
A. Preliminary Attachment
1. Ground (Memorize)
Section 1. Grounds upon which attachment may issue. At the
commencement of the action or at any time before entry of judgment, a
plaintiff 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 quasi-delict
against a party who is about to depart from the Philippines with
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 any 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.
Enumeration is exclusive. The common denominator of (a)(e) is fraud.
When may one apply for a writ of preliminary attachment? Compare
the timeframes: In preliminary attachment, you can apply at the
commencement of the action or at any time before the entry of judgment.
On the other hand, you can apply for a writ of preliminary injunction
before final judgment. When it comes to application for appointment of
receiver, you can apply even during the executory portion of the
judgment. As to replevin, you can apply only before answer. Finally,
when it comes to support pendente lite, you can only apply that together
with the action of support or at or any time before final judgment. This is
a misnomer because an action for support never becomes final. So it can
be applied at any time.
Provisional Remedy When can you apply?
Preliminary attachment at the commencement of the action
or at any time before the entry of
judgment
Preliminary injunction before final judgment
Receivership even during the executory portion
of the judgment
Replevin before answer
Support pendent lite At any time
The shortest timeframe is for replevin. The longest is for receivership.
The timeframe is not applicable to support pendente lite because you can
go back to court at any time.
At the commencement of the action or at any time before entry of
judgment you can apply for a writ of preliminary attachment even
with the SC because a case may reach the SC and there is no entry of
judgment yet. General rule: It is only the trial court that can execute a
judgment as a matter of right. Even if the case started with the MTC, it
went up and up to the SC, when you try to execute it, you have to do so
with the MTC. Only when there is an entry of judgment can you execute
it. Before entry of judgment, you can always apply for a writ of
3 GING
preliminary attachment. Thus, you can apply it with the SC if there is no
entry of judgment yet.
For what purpose? (1) as security for the satisfaction of any judgment.
You are not to satisfy the judgment because satisfaction of judgment is
with Rule 39. Here, you only want to secure the satisfaction of a
judgment.
How? When you file a case and you want to secure the satisfaction of a
judgment, even at the commencement of the action, you can already ask
for a writ of preliminary attachment. Because if there is already an
attached property and the judgment has already been entered, you dont
go to Rule 39. You go to sale on attachment and not sale on execution.
Preliminary attachment is seldom used in small cases. If the debt is
P1,000,000, forget about preliminary attachment. But if someone owes
you P10,000,000, attach the property so that when you have an entry of
judgment, youll have nothing more to execute.
Example: In 1990, you filed a case against Henry Sy. Attach the building
of Henry Sy at the commencement of the action. The case continued until
2000. Between 1990 and 2000, a lot can happen. If the lawyer of Sy sees
that they will lose, the lawyer will advice him to dispose of his
properties. So even if you win, you will have nothing to execute. This is
where third party claims come in.
In actual practice, the unwritten purpose of preliminary attachment, is
not to secure the satisfaction of judgment, is to force the parties to come
to the negotiating table. Example: A businessman is engaged in
merchandising. A filed a case against the businessman and availed of a
preliminary attachment. His hands will be ties and he cannot do business
anymore. What should he do? He will come to the negotiating table and
would want to settle.
(2) for the court to acquire jurisdiction over the res. Jurisdiction over the
res is not necessary for the case to continue because as long as the court
has jurisdiction over the person of the defendant, the case will proceed.
But if the court cannot acquire jurisdiction over the person of the
defendant, then at least, if it is a recovery action, you attach the property
and even if the court doe not acquire jurisdiction over the person of the
defendant, the case can continue. The limitation is when you execute,
you are limited only to the value of the property. You cannot go beyond
that which has been attached.
Example: The obligation is P1,000,000. You were able to sell the property
for P800,000. You can claim only up to the attached property. It is only
the res that is answerable. But if you file a case and you were able to
summon the defendant, and then you levy the property, you can go
beyond the value of the attached property because the court has
jurisdiction over the person.
2. Requirements
Section 3. Affidavit and bond required. An order of attachment shall be
granted only when it appears by the affidavit of the applicant, or of some
other person who personally knows the facts, that a sufficient cause of
action exists, that the case is one of those mentioned in section 1 hereof,
that there is no other sufficient security for the claim sought to be
enforced by the action, and that the amount due to the applicant, or the
value of the property the possession of which he is entitled to recover, is
as much as the sum for which the order is granted above all legal
counterclaims. The affidavit, and the bond required by the next
succeeding section, must be duly filed with the court before the order
issues.
There are 4 requirements under Section 3:
First, valid cause of action. A provisional remedy cannot exist without a
principal action. The valid cause of action means there must be a
principal action.
Second, it must be on the basis of any of the grounds provided for in
Section 1 of Rule 57. Outside of the 6 items enumerated, you cannot
apply for a writ of preliminary attachment.
Third, there must be no sufficient security. Attachment is to secure the
satisfaction of the judgment. If there is already a security (like a
mortgage), then you cannot apply anymore for preliminary attachment.
Finally, the value of the property must be equal to that of the property
sought to be attached less all other counterclaims. This applies to the
concept of redemptioner.
4 GING
3. Manner of Attaching
When the writ of preliminary attachment is issued, that should be
implemented after the court acquires jurisdiction over the person of the
defendant. As far as implementation is concerned, the court must have
acquired jurisdiction over the person of the defendant. Without that, the
implementation is null and void. This is the doctrine laid down in
Mangila vs CA.
4. Discharge of Attachment
If you are a businessman and your business was attached, your hands
are tied and you can no longer continue your business. You would want
it discharged.
There are 2 ways of discharging or lifting the writ of preliminary
attachment: Sections 5, 12 and 13
(1) Under section 5 and section 12, the way to discharge is through the
posting of a counterbond.
Section 5. Manner of attaching property. The sheriff enforcing the writ
shall without delay and with all reasonable diligence attach, to await
judgment and execution in the action, only so much of the property in
the Philippines of the party against whom the writ is issued, not exempt
from execution, as may be sufficient to satisfy the applicant's demand,
unless the former makes a deposit with the court from which the writ is
issued, or gives a counter-bond executed to the applicant, in an amount
equal to the bond fixed by the court in the order of attachment or to the
value of the property to be attached, exclusive of costs. No levy on
attachment pursuant to the writ issued under section 2 hereof shall be
enforced unless it is preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the complaint, the
application for attachment the applicant's affidavit and bond, and the
order and writ of attachment, on the defendant within the Philippines.
The requirement of prior or contemporaneous service of summons shall
not apply where the summons could not be served personally or by
substituted service despite diligent efforts, or the defendant is a resident
of the Philippines temporarily absent therefrom, or the defendant is a
non-resident of the Philippines, or the action is one in rem or quasi in rem.
Section 12. Discharge of attachment upon giving counter-bond. After a
writ of attachment has been enforced, the party whose property has been
attached, or the person appearing on his behalf, may move for the
discharge of the attachment wholly or in part on the security given. The
court shall, after due notice and hearing, order the discharge of the
attachment if the movant makes a cash deposit, or files a counter-bond
executed to the attaching party with the clerk of the court where the
application is made, in an amount equal to that fixed by the court in the
order of attachment, exclusive of costs. But if the attachment is sought to
be discharged with respect to a particular property, the counter-bond
shall be equal to the value of that property as determined by the court. In
either case, the cash deposit or the counter-bond shall secure the
payment of any judgment that the attaching party may recover in the
action. A notice of the deposit shall forthwith be served on the attaching
party. Upon the discharge of an attachment in accordance with the
provisions of this section, the property attached, or the proceeds of any
sale thereof, shall be delivered to the party making the deposit or giving
the counter-bond, or to the person appearing on his behalf, the deposit or
counter-bond aforesaid standing in place of the property so released.
Should such counter-bond for any reason be found to be or become
insufficient, and the party furnishing the same fail to file an additional
counter-bond, the attaching party may apply for a new order of
attachment.
Under section 12, it is also through a counterbond but the difference is in
section 5, the writ has not been implemented (even before getting it, it
has to be released), but in section 12, the property is already in custodia
legis and you post a counterbond and the property will be released or
the writ will be lifted or discharged.
How much is the counterbond? Equal to the bond posted by the
attaching creditor. This is the only kind of counterbond (under Section
5), in the Rules of Court, that answers for the judgment. It is not a bond
that just answers damages.
Example: Judgment is for P10,000,000 which is the principal obligation.
Damages is for P1,000,000. The totality is P11,000,000. Other bonds
answer only for the P1,000,000. But the counterbond in preliminary
attachment answers for the P11,000,000 it includes the entire judgment.
(2) Under section 13, you file a motion questioning or assailing the
propriety or regularity of the attachment.
5 GING
Section 13. Discharge of attachment on other grounds. The party whose
property has been ordered attached may file a motion with the court in
which he action is pending, before or after levy or even after the release
of the attached property, for an order to set aside or discharge the
attachment on the ground that the same was improperly or irregularly
issued or enforced, or that the bond is insufficient. If the attachment is
excessive, the discharge shall be limited to the excess. If the motion be
made on affidavits on the part of the movant but not otherwise, the
attaching party may oppose the motion by counter-affidavits or other
evidence in addition to that on which the attachment was made. After
due notice and hearing, the court shall order the setting aside or the
corresponding discharge of the attachment if it appears that it was
improperly or irregularly issued or enforced, or that the bond is
insufficient, or that the attachment is excessive, and the defect is not
cured forthwith.
Chuidian vs Sandiganbayan: Chuidian was one of the cronies of
President Marcos. He was able to get a loan from the Philippine
government bank in millions of dollars to be invested in the Philippines.
He never invested here but invested it in Silicon Valley at a time where
information technology was just at its initial stage. Chuidian failed to
pay. The Philippine bank filed a suit against Chuidian in San Mateo
Country Court in California. It ended up in compromise. This was
appealed. During the pendency of the appeal, there was a change of
government in the Philippines. One of the first presidential acts of Cory
Aquino was the creation of Presidential Commission of Good
Governance (PCGG), which was tasked to run after the Marcos wealth
and that of his cronies. PCGG started filed cases against Marcos and his
cronies. There were all in the States. PCGG filed a case against Chuidian
before the Sandiganbayan (which has original and exclusive
jurisdiction). PCGG applied for a writ of preliminary attachment of the
letters of credit (the compromise agreement in California was turned into
letters of credit) worth millions of dollars. Sandiganbayan issued the writ
of preliminary attachment attaching the letters of credit belonging to
Chuidian. They started trying the case. Meanwhile, the cronies started
returning to the Philippines, including Chuidian. When he arrived, he
filed a motion to discharge the writ of preliminary attachment before the
Sandiganbayan under Section 13 saying it was irregularly and
improperly issued. What was the ground of the principal action? He was
charged for fraud in contracting the obligation. That was the ground
principally for the principal action of collection and the ground as well
for the issuance of the writ of preliminary attachment, aside from the fact
that accordingly, he was disposing of the property in fraud of the
creditors and the most potent ground of all was the fact that his
whereabouts were unknown because he was living in the States.
Chuidian claimed there was no fraud. In fact, there was already a
judgment so he offered the judgment. He claimed that the most potent
ground no longer holds because he is already in the Philippines so have
the writ discharged. Sandiganbayan denied his motion.
SC: Chuidian cannot ask for the discharge or lifting of the writ of
preliminary attachment pursuant to section 13. Had you wanted it
discharged, you could have easily posted a counterbond under section
12. But you did avail of section 13 and that is not possible because if the
ground in the principal action as well as in the provisional remedy of
preliminary attachment is the same, we cannot discharge the writ
pursuant to section 13 because we will be resolving the principal action.
You cannot resolve a principal action by a mere motion.
5. Third Party Claim
Redemptioner - creditor who has a lien subsequent to the lien under
which the property is sold. If you are an attaching creditor and the
property is sold pursuant to a lien on sale on attachment not execution,
there will be a lot of redemptioners because you applied for the writ of
preliminary attachment at the commencement of the action.
Example: You file a case against Henry Sy and you attach the building
worth P100,000,000. His debt is only P50,000,000. There is a balance of
P50,000,000. A lot of other people will attach that building also. B, whose
credit is P10,000,000 will attach the property. The balance is now
P40,000,000. C will attach for P30,000,000. This complies with section 3;
value of the property less all the counterclaims.
When you sell the property on attachment, there is now sale on
attachment, the purchaser buys it. It was redeemed by redemptioner.
Who are the other redemptioners? Subsequent lien holders (B and C).
Lien holders subsequent to the lien under which the property was sold.
The lien now under which the property is being sold is not the lien on
execution but the lien on attachment, which happened a long time ago.
6. Claim for Damages
6 GING
A claim for cannot be brought in a separate action. You bring up claim
for damages as long as the judgment has not been entered yet. You can
file it with the trial court or appellate court.
It does not mean that if you lose in the provisional remedy, that you will
lose the principal action. They are two separate and distinct matters.
Likewise, it does not mean that if you win in the provisional remedy of
preliminary attachment, that you will win the principal action.
Du vs Stronghold Insurance
DM Wenceslao vs Readycon Trading
Torres vs Satsatin
Metro, Inc. vs Laras Gifts and Decors, Inc.
B. Preliminary Injunction
1. Definition, Classes
Section 1. Preliminary injunction defined; classes. A 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 may also require the
performance of a particular act or acts, in which case it shall be known as
a preliminary mandatory injunction.
General rule: There can be no injunctive relief or preliminary injunction
without notice and hearing. The writ of preliminary injunction can only
be issued after due notice and hearing. Dont confuse the writ of
preliminary injunction with the precedent writs which is the temporary
restraining order. The TRO is precedent or preparatory to that because
you cannot get the writ of preliminary injunction without notice and
hearing.
Exception: But under administrative matter 07-7-12 which took effect
December 2007, you can now get TROs without hearing. In other words,
it can be granted ex parte.
TRO is a source of judicial corruption. This is aggravated by the fact that
this is not ex parte.
There are 2 kinds of TRO
 72 hours begins or takes effect upon issuance
Why 72 hours? 72 hours is equivalent to 3 days so even if it is issued on a
Friday, you have up until Monday within which the court may decide
whether to extend it or not because the 72-hour TRO is granted by the
court with the intent of extending that because these used to be granted
due to very urgent situations.
20 days takes effect upon notice (upon receipt of the copy of the
writ by the respondent)
This used to be granted only after a summary hearing. Presently, the
summary hearing is no longer needed. The 20-day TRO can be granted
ex parte. There is no distinction whether it is a 72-hour TRO or a 20-day
TRO.
If you are granted a 20-day TRO, that includes the 72 hours. If you are
granted at first the 72-hour TRO, if it is extended, the extension is 17 days
only. The court can never grant beyond 20 days of TRO. It will be grave
abuse of discretion on the part of the court to grant more than 20-day
TRO. We are talking about MTC and RTC.
But in the case of the CA, the TRO is good for 60 days.
In the case of the SC, there is no time limit. If you get a TRO in the SC,
that amounts to getting injunction before the SC.
Section 2. Who may grant preliminary injunction. A preliminary
injunction may be granted by the court where the action or proceeding is
pending. If the action or proceeding is pending in the Court of Appeals
or in the Supreme Court, it may be issued by said court or any member
thereof.
Prohibitory injunction to maintain the status quo. Example: If
MERALCO gave A a notice of disconnection, A should file a prohibitory
injunction because he wants to maintain the status quo.
Mandatory injunction sought to return to the status quo. Example: If
there is brown-out in As residence because MERALCO cut his electric
power, A should file a mandatory injunction because he wants light
again.
7 GING
2. Grounds
Section 3. Grounds for issuance of preliminary injunction. A preliminary
injunction may be granted when it is established:
(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.
3. Requirements
Section 4. Verified application and bond for preliminary injunction or
temporary restraining order. A preliminary injunction or temporary
restraining order may be granted only when:
(a) The application in the action or proceeding is verified, and shows
facts entitling the applicant to the relief demanded; and
(b) Unless exempted by the court the applicant files with the court
where the action or proceeding is pending, a bond executed to the
party or person enjoined, in an amount to be fixed by the court, to
the effect that the applicant will pay to such party or person all
damages which he may sustain by reason of the injunction or
temporary restraining order if the court should finally decide that
the applicant was not entitled thereto. Upon approval of the
requisite bond, a writ of preliminary injunction shall be issued.
(c) When an application for a writ of preliminary injunction or a
temporary restraining order is included in a complaint or any
 initiatory pleading, the case, if filed in a multiple-sala court, shall be
raffled only after notice to and in the presence of the adverse party
or the person to be enjoined. In any event, such notice shall be
preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint or initiatory
pleading and the applicant's affidavit and bond, upon the adverse
party in the Philippines.
However, where the summons could not be served personally or by
substituted service despite diligent efforts, or the adverse party is a
resident of the Philippines temporarily absent therefrom or is a
nonresident thereof, the requirement of prior or contemporaneous
service of summons shall not apply.
(d) The application for a temporary restraining order shall thereafter be
acted upon only after all parties are heard in a summary hearing
which shall be conducted within twenty-four (24) hours after the
sheriff's return of service and/or the records are received by the
branch selected by raffle and to which the records shall be
transmitted immediately.
Section 5. Preliminary injunction not granted without notice; exception.
No preliminary injunction shall be granted without hearing and prior
notice to the party or person sought to be enjoined. If it shall appear from
facts shown by affidavits or by the verified application that great or
irreparable injury would result to the applicant before the matter can be
heard on notice, the court to which the application for preliminary
injunction was made, may issue a temporary restraining order to be
effective only for a period of twenty (20) days from service on the party
or person sought to be enjoined, except as herein provided. Within the
said twenty-day period, the court must order said party or person to
show cause, at a specified time and place, why the injunction should not
be granted, determine within the same period whether or not the
preliminary injunction shall be granted, and accordingly issue the
corresponding order. (Bar Matter No. 803, 17 February 1998)
However, and subject to the provisions of the preceding sections, if the
matter is of extreme urgency and the applicant will suffer grave injustice
and irreparable injury, the executive judge of a multiple-sala court or the
presiding judge of a single sala court may issue ex parte a temporary
restraining order effective for only seventy-two (72) hours from issuance
but he shall immediately comply with the provisions of the next
8 GING
preceding section as to service of summons and the documents to be
served therewith. Thereafter, within the aforesaid seventy-two (72)
hours, the judge before whom the case is pending shall conduct a
summary hearing to determine whether the temporary restraining order
shall be extended until the application for preliminary injunction can be
heard. In no case shall the total period of effectivity of the temporary
restraining order exceed twenty (20) days, including the original
seventy-two hours provided herein.
In the event that the application for preliminary injunction is denied or
not resolved within the said period, the temporary restraining order is
deemed, automatically vacated. The effectivity of a temporary
restraining order is not extendible without need of any judicial
declaration to that effect and no court shall have authority to extend or
renew the same on the same ground for which it was issued.
However, if issued by the Court of Appeals or a member thereof, the
temporary restraining order shall be effective for sixty (60) days from
service on the party or person sought to be enjoined. A restraining, order
issued by the Supreme Court or a member thereof shall be effective until
further orders.
Section 6. Grounds for objection to, or for motion of dissolution of, injunction
or restraining order. The application for injunction or restraining order
may be denied, upon a showing of its insufficiency. The injunction or
restraining order may also be denied, or, if granted, may be dissolved, on
other grounds upon affidavits of the party or person enjoined, which
may be opposed by the applicant also by affidavits. It may further be
denied, or if granted, may be dissolved, if it appears after hearing that
although the applicant is entitled to the injunction or restraining order,
the issuance or continuance thereof, as the case may be, would cause
irreparable damage to the party or person enjoined while the applicant
can be fully compensated for such damages as he may suffer, and the
former files a bond in an amount fixed by the court conditioned that he
will pay all damages which the applicant may suffer by the denial or the
dissolution of the injunction or restraining order. If it appears that the
extent of the preliminary injunction or restraining order granted is too
great, it may be modified.
Section 7. Service of copies of bonds; effect of disapproval of same. The
party filing a bond in accordance with the provisions of this Rule shall
forthwith serve a copy of such bond on the other party, who may except
to the sufficiency of the bond, or of the surety or sureties thereon. If the
applicant's bond is found to be insufficient in amount, or if the surety or
sureties thereon fail to justify, and a bond sufficient in amount with
sufficient sureties approved after justification is not filed forthwith the
injunction shall be dissolved. If the bond of the adverse party is found to
be insufficient in amount, or the surety or sureties thereon fail to justify a
bond sufficient in amount with sufficient sureties approved after
justification is not filed forthwith, the injunction shall be granted or
restored, as the case may be.
4. Damages
Section 8. Judgment to include damages against party and sureties. At the
trial, the amount of damages to be awarded to either party, upon the
bond of the adverse party, shall be claimed, ascertained, and awarded
under the same procedure prescribed in section 20 of Rule 57.
Section 9. When final injunction granted. If after the trial of the action it
appears that the applicant is entitled to have the act or acts complained
of permanently enjoined the court shall grant a final injunction
perpetually restraining the party or person enjoined from the
commission or continuance of the act or acts of confirming the
preliminary mandatory injunction.
Idolor vs CA
Gustilo vs Real
Lagrosas vs Bristol-Myers
Jenosa vs Delarierye
Solid Builders vs China Bank
C. Receivership
1. When writ may issue
Section 1. Appointment of receiver. Upon a verified application, one or
more receivers of the property subject of the action or proceeding may be
appointed by the court where the action is pending or by the Court of
Appeals or by the Supreme Court, or a member thereof, in the following
cases:
(a) When it appears from the verified application, and such other proof
as the court may require, that the party applying for the appointment of
9 GING
a receiver has an interest in the property or fund which is the subject of
the action or 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 probably 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.
During the pendency of an appeal, the appellate court may allow an
application for the appointment of a receiver to be filed in and decided
by the court of origin and the receiver appointed to be subject to the
control of said court.
Can the mortgagee apply for the appointment of the receiver? Yes. On
what grounds? There are only 3 grounds for a mortgagee to apply for
the appointment of a receiver. Rule 59, Section 1(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 probably insufficient to discharge the mortgage debt,
or that the parties have so stipulated in the contract of mortgage.
A mortgage is a security. Why would an appointment of receiver be
necessary when there is already a security? Isnt it that one of the
requirements under Rule 57 is that when there is already security, there
is really no need for another security? When the value is probably
insufficient to discharge the mortgage debt. Notwithstanding that there
is security, the security is insufficient.
Where do you file the application for receiver? With the court where
the principal action is pending because a provisional remedy cannot exist
without the principal action. Where the principal action is, the
provisional remedy goes with it. The basic rule in provisional remedy is
that it cannot exist on its own. It has to be attached, contingent or
dependent on a principal action.
Chavez vs CA: Was the application for the appointment of a receiver
valid?
Garcia vs PAL: This is about 2 employees of PAL.
Larrobis, Jr. vs Phil. Veterans Bank:
2. Requirements
Section 2. Bond on appointment of receiver. Before issuing the order
appointing a receiver the court shall require the applicant to file a bond
executed to the party against whom the application is presented, in an
amount to be fixed by the court, to the effect that the applicant will pay
such party all damages he may sustain by reason of the appointment of
such receiver in case the applicant shall have procured such appointment
without sufficient cause; and the court may, in its discretion, at any time
after the appointment, require an additional bond as further security for
such damages.
Section 3. Denial of application or discharge of receiver. The application
may be denied, or the receiver discharged, when the adverse party files a
bond executed to the applicant, in an amount to be fixed by the court, to
the effect that such party will pay the applicant all damages he may
suffer by reason of the acts, omissions, or other matters specified in the
application as ground for such appointment. The receiver may also be
discharged if it is shown that his appointment was obtained without
sufficient cause.
Section 4. Oath and bond of receiver. Before entering upon his duties,
the receiver shall be sworn to perform them faithfully, and shall file a
bond, executed to such person and in such sum as the court may direct,
to the effect that he will faithfully discharge his duties in the action or
proceeding and obey the orders of the court.
Section 5. Service of copies of bonds; effect of disapproval of same. The
10 GING
person filing a bond in accordance with the provisions of this Rule shall
forthwith serve a copy thereof on each interested party, who may except
to its sufficiency or of the surety or sureties thereon. If either the
applicant's or the receiver's bond is found to be insufficient in amount, or
if the surety or sureties thereon fail to justify, and a bond sufficient in
amount with sufficient sureties approved after justification is not filed
forthwith, the application shall be denied or the receiver discharged, as
the case may be. If the bond of the adverse party is found to be
insufficient in amount or the surety or sureties thereon fail to justify, and
a bond sufficient in amount with sufficient sureties approved after
justification is not filed forthwith, the receiver shall be appointed or re-
appointed, as the case may be.
3. Power of Receiver
Section 6. General powers of receiver. Subject to the control of the court
in which the action or proceeding is pending a receiver shall have the
power to bring and defend, in such capacity, actions in his own name; to
take and keep possession of the property in controversy; to receive rents;
to collect debts due to himself as receiver or to the fund, property, estate,
person, or corporation of which he is the receiver; to compound for and
compromise the same; to make transfers; to pay outstanding debts; to
divide the money and other property that shall remain among the
persons legally entitled to receive the same; and generally to do such acts
respecting the property as the court may authorize. However, funds in
the hands of a receiver may be invested only by order of the court upon
the written consent of all the parties to the action.
No action may be filed by or against a receiver without leave of the court
which appointed him.
Section 6 speaks of the rights and duties of an appointed receiver. It is
necessary that before a receiver is appointed, he must post a bond. This
is a requisite for the appointment of a receiver. If he is appointed as a
receiver, does he have to post another bond?
The applicant is different from the receiver. The appointed receiver is not
necessarily the applicant. When one applies for the appointment of a
receiver, it does not follow that he will be appointed as the receiver.
When the applicant applies for the appointment of a receiver, he is
required to post a bond. If the applicant himself is appointed as the
receiver, should he post another bond (because the receiver is also
required to post a bond)?
In Rule 59, there are 2 bonds posted: one for the applicant and the other
for the receiver. If the applicant himself is appointed by the court as the
receiver, should the applicant post another bond?
What is the applicants bond for? Why is an applicant required to post
a bond? To answer for damages that may be caused by the applicant.
Example of a damage that an application will entail:
Koruga vs Arcenas:
What are the duties and responsibilities of a receiver?
The receiver is in possession of the properties under receivership. Can
he invest them? A receiver is not necessarily an individual person. It can
be a corporation, law firm, or a partnership.
Section 7. Liability for refusal or neglect to deliver property to receiver. A
person who refuses or neglects, upon reasonable demand, to deliver to
the receiver all the property, money, books, deeds, notes, bills,
documents and papers within his power or control, subject of or
involved in the action or proceeding, or in case of disagreement, as
determined and ordered by the court, may be punished for contempt
and shall be liable to the receiver for the money or the value of the
property and other things so refused or neglected to be surrendered,
together with all damages that may have been sustained by the party or
parties entitled thereto as a consequence of such refusal or neglect.
4. Termination and Compensation
Section 8. Termination of receivership; compensation of receiver. Whenever
the court, motu proprio or on motion of either party, shall determine that
the necessity for a receiver no longer exists, it shall, after due notice to all
interested parties and hearing, settle the accounts of the receiver, direct
the delivery of the funds and other property in his possession to the
person adjudged to be entitled to receive them and order the discharge
of the receiver from further duty as such. The court shall allow the
receiver such reasonable compensation as the circumstances of the case
warrant, to be taxed as costs against the defeated party, or apportioned,
as justice requires.
11 GING
Aguilar vs Manila Banking Corp
Of all the provisional remedies, which has the shortest timeframe?
Replevin. Until when may one apply for the appointment of a receiver?
Even during the executory portion of the judgment. Of all the
provisional remedies, the appointment of a receiver has the longest
timeframe. Why? The very purpose of the appointment of the receiver is
for the preservation, administration, and disposition of property. It has
the longest timeframe because it involves the disposition of property.
D. Replevin
1. When writ may issue
Section 1. Application. A party praying for the recovery of possession
of personal property may, at the commencement of the action or at any
time before answer, apply for an order for the delivery of such property
to him, in the manner hereinafter provided.
While in receivership, you have until or even after execution in the
course of the disposal or disposition of the property within which to
apply for the appointment of a receiver. But in application for writ of
replevin, it may be only done until before answer (answer should be
filed within 15 days from receipt of summons). If you are applying for
writ of replevin, it should be before the answer. Why?
The grounds for the application for a writ of replevin is such that the
applicant is entitled to the possession of the subject matter and in that he
is the owner of the subject matter of the writ. You file because you are
either the owner of the property or you are entitled to the possession of
the property.
If answer has been filed to the complaint, what does that answer lead
to? Issues are joined. If I say that I should have possession of the
property because Im entitled to its possession because I am the owner of
the property, the court has yet no knowledge as to who is really the
owner or entitled to the possession of the property. But once the answer
is already filed and issues are joined, the allegation in the answer will say
I am the owner of the property. There is now an issue: who is the
owner of the property? The court has to decide that. The writ of replevin
can no longer be issued. That is why it can only be issued before answer.
Because it is only before the answer that the writ of replevin may be
issued by the court, can the writ therefore be granted ex parte? If it can
be issued ex parte or if it requires notice and hearing, at the hearing, the
defendant will be there and the defendant can say he is the owner of the
property. The court can no longer issue the writ. That will make the writ
illusory. So how can now the court issue the writ? It cannot be issued ex
parte either. The Rule provides that the writ of replevin may only be
issued before answer because at that point of time, the court is only
dealing with the applicant. But once you call on the defendant or you
notify the defendant for the hearing and he is there, you can no longer
issue the writ. There is an insufficient explanation of whether the writ of
replevin may be issued.
Preliminary attachment may be issued ex parte but it can never be
implemented. You have to consider the implementation. It requires prior
or contemporaneous service of summons nonetheless. This is what is
meant by notice in the writ of replevin. So that in the writ of replevin, the
applicant must act very fast. Upon application, notice, let it issue because
we are dealing with personal property which can be relocated or
transferred and you have to run after that personal property.
The bond is double the amount of the personal property. If I am the
applicant for the immediate recovery and possession of a car worth
P1,200,000, I will be required to post a bond at P2,400,000. Isnt that
foolish? I might as well buy a new car rather than posting a bond of
P2,400,000. The car that I sold is P1,200,000 with chattel mortgage and
here comes an applicant for a writ of replevin posting twice the value of
the property. What is the rationale of the law? You are not depositing
P2,400,000 cash. This is just a bond, unlike in preliminary attachment
where you can file a cash deposit or bond. It would be foolish to post a
cash bond. It is only surety bond. In surety bonds, you dont have to give
a cash of the total amount. You only pay the premium and the prevailing
market price is minimum of 3% and maximum of 10%. So it is worth
applying for a writ of replevin. You are posting an P240,000 maximum
and you are covering a car worth P1,200,000 and you can sell this again.
This is common among car dealers.
2. Requirements
Section 2. Affidavit and bond. The applicant must show by his own
12 GING
affidavit or that of some other person who personally knows the facts:
(a) That the applicant is the owner of the property claimed, particularly
describing it, or is entitled to the possession thereof;
(b) That the property is wrongfully detained by the adverse party,
alleging the cause of detention thereof according to the best of his
knowledge, information, and belief ;
(c) That the property has not been distrained or taken for a tax
assessment or a fine pursuant to law, or seized under a writ of execution
or preliminary attachment, or otherwise placed under custodia legis, or if
so seized, that it is exempt from such seizure or custody; and
(d) The actual market value of the property.
The applicant must also give a bond, executed to the adverse party in
double the value of the property as stated in the affidavit
aforementioned, for the return of the property to the adverse party if
such return be adjudged, and for the payment to the adverse party of
such sum as he may recover from the applicant in the action.
Section 3. Order. Upon the filing of such affidavit and approval of the
bond, the court shall issue an order and the corresponding writ of
replevin, describing the personal property alleged to be wrongfully
detained and requiring the sheriff forthwith to take such property into
his custody.
Section 4. Duty of the sheriff. Upon receiving such order, the sheriff
must serve a copy thereof on the adverse party, together with a copy of
the application, affidavit and bond, and must forthwith take the
property, if it be in the possession of the adverse party, or his agent, and
retain it in his custody. If the property or any part thereof be concealed in
a building or enclosure, the sheriff must demand its delivery, and if it be
not delivered, he must cause the building or enclosure to be broken open
and take the property into his possession. After the sheriff has take
possession of the property as herein provided, he must keep it in a
secure place and shall be responsible for its delivery to the party entitled
thereto upon receiving his fees and necessary expenses for taking and
keeping the same.
Section 5. Return of property. If the adverse party objects to the
sufficiency of the applicant's bond, or of the surety or sureties thereon, he
cannot immediately require the return of the property, but if he does not
so object, he may, at any time before the delivery of the property to the
applicant, require the return thereof, by filing with the court where the
action is pending a bond executed to the applicant, in double the value of
the property as stated in the applicant's affidavit for the delivery thereof
to the applicant, if such delivery be adjudged, and for the payment of
such sum, to him as may be recovered against the adverse party, and by
serving a copy of such bond on the applicant.
Section 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.
Hao vs Andres: What was the subject matter of the writ here? 22 motor
vehicles. Andres, the sheriff, with the writ of replevin, was able to take
into custody 9 cars. He placed them in a warehouse, the owner of which
was related to the applicant. The issue is as to the duty of the sheriff.
What did the sheriff Andres do? He did not wait for 5 days, which is
mandatory in the Rules. He immediately gave it to the applicants. His
excuse was the cars were lost (he allowed the applicant to make a
duplicate of the keys which happened during the 5-day period). The
penalty for Andres (not dismissal) was a fine and suspension.
When the sheriff takes custody of the subject of replevin, for how long
should he keep the subject matter? 5 days.
What is the purpose of keeping it for 5 days from the time he took
custody of the property?
(1) To allow the adverse party to object to the sufficiency of the
applicants bond;
What happens when the adverse party questions the sufficiency of the
bond? If the bond supposed to be posted is P2,400,000 and what was
posted was only P1,200,000, the sheriff will allow the applicant to pay for
the insufficiency. If the applicant fails to comply, the sheriff should
deliver the property mumble mumble fucking mumble open your
13 GING
fucking mumbling mouth (to the adverse party siguro I dont
understand the person reciting/mumbling).
(2) for the other party to be able to file a redelivery bond, equivalent to
a counterbond in preliminary attachment, which is twice the value
of the property.
Upon posting of the redelivery bond, the writ is automatically
discharged. Without the writ, the property should be returned to the
adverse party (to the person against whom the writ of replevin was
issued).
After the 5-day period, the sheriff must deliver the property to the
applicant.
3. Third party Claim
Section 7. Proceedings where property claimed by third person. If the
property taken is claimed by any person other than the party against
whom the writ of replevin had been issued or his agent, and such person
makes an affidavit of his title thereto, or right to the possession thereof,
stating the grounds therefor, and serves such affidavit upon the sheriff
while the latter has possession of the property and a copy thereof upon
the applicant, the sheriff shall not be bound to keep the property under
replevin or deliver it to the applicant unless the applicant or his agent, on
demand of said sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the
property under replevin as provided in section 2 hereof. In case of
disagreement as to such value, the court shall determine the same. No
claim for damages for the taking or keeping, of the property may be
enforced against the bond unless the action therefor is filed within one
hundred twenty (120) days from the date of the filing of the bond.
The sheriff shall not be liable for damages, for the taking or keeping of
such property, to any such third-party claimant if such bond shall be
filed. Nothing herein contained shall prevent such claimant or any third
person from vindicating his claim to the property, or prevent the
applicant from claiming damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in the same or a separate
action.
When the writ of replevin is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such bond
shall not be required, and in case the sheriff is sued for damages as a
result of the replevin, he shall be represented by the Solicitor General,
and if held liable therefor, the actual damages adjudged by the court
shall be paid by the National Treasurer out of the funds to be
appropriated for the purpose.
What is the procedure here? The third party claimant is a non-party to
the action. Third party claims are formulated in the same way as in
Section 14, Rule 57 and Section 16, Rule 39. The third party claimant
would execute an affidavit of third party claim, gives that to the sheriff
who is in possession of the property, and the sheriff is supposed to give
or to surrender the property subject of the writ of replevin (under Rule
57, subject of attachment; under Rule 39, subject of execution) to the third
party claimant, unless the applicant under Rule 60 posts another bond. It
is not the third party claimant that posts the bond. Rather, it is the
applicant in Rule 57. He has already posted twice the value of the
property. Here again, when there is a third party claim, he has to post
another bond equivalent to the value of the property. In effect, when
there is a third party claimant, the applicant posts a bond equivalent to
thrice the value of the property.
What would be the remedy of the applicant in the event that the third
party claim is frivolous or baseless or unwarranted? Section 20, which
is cross-referred in all the provisional remedies except for support
pendente lite. It is not only in the same action but even in a separate
action.
Rule 57, Section 20. Claim for damages on account of improper, irregular or
excessive attachment. An application for damages on account of
improper, irregular or excessive attachment must be filed before the trial
or before appeal is perfected or before the judgment becomes executory,
with due notice to the attaching party and his surety or sureties setting
forth the facts showing his right to damages and the amount thereof.
Such damages may be awarded only after proper hearing and shall be
included in the judgment on the main case.
If the judgment of the appellate court be favorable to the party against
whom the attachment was issued he must claim damages sustained
during the pendency of the appeal by filing an application in the
appellate court, with notice to the party in whose favor the attachment
14 GING
was issued or his surety or sureties, before the judgment of the appellate
court becomes executory. The appellate court may allow the application
to be heard and decided by the trial court.
Nothing herein contained shall prevent the party against whom the
attachment was issued from recovering in the same action the damages
awarded to him from any property of the attaching party not exempt
from execution should the bond or deposit given by the latter be
insufficient or fail to fully satisfy the award.
Section 8. Return of papers. The sheriff must file the order, with his
proceedings indorsed, thereon, with the court within ten (10) days after
taking the property mentioned therein.
4. Judgment and Damages
Section 9. Judgment. After trial of the issues the court shall determine
who has the right of possession to and the value of the property and
shall render judgment in the alternative for the delivery thereof to the
party entitled to the same, or for its value in case delivery cannot be
made, and also for such damages as either party may prove, with costs.
Section 10. Judgment to include recovery against sureties. The amount, if
any, to be awarded to any party upon any bond filed in accordance with
the provisions of this Rule, shall be claimed, ascertained, and granted
under the same procedure as prescribed in section 20 of Rule 57.
Smart Communications vs Astorga: Astorga was employed in Smart
Communications. She was transferred to another division but she
declined it. Actually, there was an employee evaluation. She did not get
a good grade. So this was her excuse. She was dismissed. She filed a case
of illegal dismissal before the NLRC. As an employee, Astorga was
entitled to a car under an installment plan deducted from her salary.
After her dismissal, Smart notified her that she has to return the car.
Astorga said she will just continue paying from her own pocket. Smart
refused because it was a company car. Because Astorga still didnt return
the car, Smart filed an action for recovery of the car with prayer for
immediate recovery of possession (replevin) with the RTC of Makati.
RTC denied the MTD. CA, reversing the RTC, said the RTC has no
jurisdiction because the case is clearly a case of employer-employee
relationship. Astorga would not have had the car had it not been for the
fact that she was employed with Smart. This was therefore a result of her
employment.
SC: CA was reversed. An employer-employee relationship may be
converted to a debtor-creditor relationship. There is no more employer-
employee relationship. It is already debtor-creditor relationship so the
RTC has jurisdiction.
Professor: I agree with the disposition of the CA.
Does the NLRC have jurisdiction over replevin? Even if the case is
pending before the NLRC, can the NLRC issue a writ? Lets look at
provisional remedies in general. In criminal procedure, it is very clear.
Provisional remedies apply in criminal cases (Rule 127).
Navarro vs Escobido: There is no need for a demand for the issuance of
the writ of replevin.
Orosa vs CA:
Rivera vs Vargas:
Bautista vs Sula:
Agner vs BPI Family Savings Bank:
Section 2. Comment. A copy of the application and all supporting
documents shall be served upon the adverse party, who shall have five
(5) days to comment thereon unless a different period is fixed by the
court upon his motion. The comment shall be verified and shall be
accompanied by affidavits, depositions or other authentic documents in
support thereof.
Section 3. Hearing. After the comment is filed, or after the expiration
of the period for its filing, the application shall be set for hearing not
more than three (3) days thereafter. The facts in issue shall be proved in
the same manner as is provided for evidence on motions.
Section 4. Order. The court shall determine provisionally the pertinent
facts, and shall render such orders as justice and equity may require,
having the regard to the probable outcome of the case and such other
circumstances as may aid in the proper resolution of the question
involved. If the application is granted, the court shall fix the amount of
money to be provisionally paid or such other forms of support as should
be provided, taking into account the necessities of the applicant and the
resources or means of the adverse party, and the terms of payment or
mode for providing the support. If the application is denied, the
principal case shall be tried and decided as early as possible.
Ms. X, an unwed mother, files a case against Mr. Y, whom she claims to
have sired a child. How should Ms. X go about it?

Ms. X should file with the Family Court where the plaintiff or defendant
E. Support pendent lite resides (because this is a personal action) an action for support with
prayer for support pendente lite. After the filing, Ms. X should serve the
In more than many cases, this provisional remedy is availed of by unwed adverse party with a copy of the application and Mr. Y shall have five
mothers. days to comment. This is a comment to the provisional remedy, not to
the principal action. In actual practice, summons is immediately served
1. Application and answer is filed. In that answer, you have the comment on the
provisional remedy of support pendente lite. After the 5-day period,
Section 1. Application. At the commencement of the proper action or with or without the comment, there should be a hearing regarding the
proceeding, or at any time prior to the judgment or final order, a verified application for support pendente lite within the 3-day period. After such
application for support pendente lite may be filed by any party stating the hearing, the court should determine the financial status of both parties;
grounds for the claim and the financial conditions of both parties, and the need as to the applicant and the capability as to the adverse party. In
accompanied by affidavits, depositions or other authentic documents in support and support pendente lite, there are only 2 issues that must be
support thereof. resolved: (1) the capacity or capability of adverse party; and (2) necessity
or need of the applicant. The court determines this provisionally. Then, it
2. Procedure: comment, hearing Order may either grant or deny the application for support pendente lite.
15 GING

3. Enforcement
Section 5. Enforcement of order. If the adverse party fails to comply
with an order granting support pendente lite, the court shall, motu proprio
or upon motion; issue an order of execution against him, without
prejudice to his liability for contempt.
When the person ordered to give support pendente lite refuses or fails to
do so, any third person who furnished that support to the applicant may,
after due notice and hearing in the same case obtain a writ of execution
to enforce his right of reimbursement against the person ordered to
provide such support.
Ms. X was granted by the court support pendente lite in the amount of
P10,000/month. How should Ms. X get the money if Mr. Y does not
voluntarily give, notwithstanding the order of support pendente lite?
Ms. X should file a writ of execution. This is a characteristic peculiar to
support pendente lite because an order granting support pendente lite is
not a final order; it is an interlocutory order. But this time, it is subject of
writ of execution. So that is peculiar. You dont find that in other cases.
Because of the writ of execution issued by the court, Mr. Y starts giving
P10,000/month while the principal case of support is being heard by
the court. Suppose the case lasted for 10 months before it was decided
by the Family Court. Mr. Y has already given Ms. X an amount of
P100,000. The Decision says Ms. X is not entitled to support. Just
because you were granted support pendente lite doesnt mean that you
will get the support. The principal action is separate and distinct from
the provisional remedy. What happens to the P100,000 that Mr. Y has
been given to Ms. X?
The amount should be given back to Mr. Y.
What may be the reason why the court did not grant her support?
Maybe paternity was not established.
Section 6. Support in criminal cases. In criminal actions where the civil
liability includes support for the offspring as a consequence of the crime
and the civil aspect thereof has not been waived, reserved and instituted
prior to its filing, the accused may be ordered to provide support
16 GING
pendente lite to the child born to the offended party allegedly because of
the crime. The application therefor may be filed successively by the
offended party, her parents, grandparents or guardian and the State in
the corresponding criminal case during its pendency, in accordance with
the procedure established under this Rule.
4. Restitution
Section 7. Restitution. When the judgment or final order of the court
finds that the person who has been providing support pendente lite is not
liable therefor, it shall order the recipient thereof to return to the former
the amounts already paid with legal interest from the dates of actual
payment, without prejudice to the right of the recipient to obtain
reimbursement in a separate action from the person legally obliged to
give the support. Should the recipient fail to reimburse said amounts, the
person who provided the same may likewise seek reimbursement
thereof in a separate action from the person legally obliged to give such
support.
What if Mr. Y becomes incapacitated? Can that be a valid ground?
There are 2 remedies available under the Rules: (1) reimbursement; and
(2) restitution. Reimbursement always entails a third party. An example
is if instead of Mr. Y giving the P10,000/month, it was the father of Mr. Y
who was giving the money, then there can be a reimbursement.
Restitution is only between the 2 parties. If the court pronounces that Ms.
X is not entitled to support, then Ms. X must restitute the P100,000 which
has already been given by Mr. Y.
Is that reasonable? Here is a person who goes to court and asks for
support and now that the court ruled otherwise, she is asked to
restitute. It is justified because a person is asked to give support when he
has no obligation to. This is a recognition of the fact that people in
general is becoming. A person is not static, a person progresses. Perhaps
the court realizes that at the time she was asking for support, she was
just working a small videoke bar. She was really in need of support. But
now that she is asked to restitute, the court perhaps realize that she is
already working at the Pegasus. She is more capable. There is a
recognition of the fact that one improves.
De Asis vs CA: The legal guardian of a minor filed a support case
against the alleged father of the ward. During the pendency of the case,
they had a compromise that they would not continue the case for
support because the guardian thought that since the father would not
acknowledge the child, it would be a waste of time to pursue the case.
After years, the guardian filed again an action for support. The
defendant said this is res judicata because this is based on the same cause
of action involving the same parties. The defendant noted the
compromise wherein they agreed that he will not support the child
because he will not acknowledge the child.

SC: First, as regards paternity, it cannot be subject to compromise. Only

the court can judicially declare such. Second, an agreement not to
support a child is void under the Civil Code. You cannot compromise
support. Third, res judicata will not apply in an action for support
because an action for support never becomes final. Therefore, support
pendente lite also never becomes final. This is the only kind of action that
never becomes final. So you do not enter judgment. Entry means
recording. You still record the dispositive portion but it never becomes
final. Any of the parties can go back to court to modify the amount
(considering the changing capacity and need).

People vs Manahan: A married man may still be liable for support but
cannot be compelled to acknowledge. He cannot be compelled to
acknowledge because it will disturb the sanctity of the marriage.
However, it may be unfair to single men.

Lopez vs CA:

Montefalcon vs Vasquez:

Lim vs Lim: Grandparents are liable to give support to their

grandchildren if and when the parents are not capacitated and the
grandparents are more than capacitated to give support. Dont confuse
that with the estate proceedings. In the estate proceedings, the estate is
only liable to give support to the widow and the children. The
grandchildren are not allowed support as in the case of Heirs of Hilario-
Ruiz vs Estate of Hilaro-Ruiz.

Lim-Lua vs Lua:

17 GING