Rule 39 Execution, Satisfaction and Effect of Judgments

1. 1. Execution as a matter of right

On motion with notice, upon a judgment or order that disposes of the action or proceeding upon the
expiration of the period to appeal therefrom if no appeal has been duly perfected.

à For so long as there is a certificate of entry of judgment, execution may already be issued by the
court of origin or directed to do so by the CA.

1. 2. Discretionary execution – pending period to appeal or during appeal; may issue only upon
good reasons to be stated in a special order after hearing.
1. By trial court – even after the perfection of the appeal for so long as the motion for execution was
filed while the TC has jurisdiction over the case and is in possession or the records, upon motion of
the prevailing party with notice to the adverse party
2. Appellate court – after the TC has lost jurisdiction

à Example:

P receives judgment: June 3

D receives judgment: June 1

D files notice of appeal: June 5

When does trial court lose jurisdiction? June 18

BUT, if P also files a notice of appeal on June 10, trial court loses jurisdiction on that date.

à Execution with respect to appealed cases- there is no need to await remand of the records.

à Execution with respect to consequential and exemplary damages should be postponed until such
time as the merits of the case have been finally determined in the regular appeal, as the amounts
remain uncertain and indefinite pending resolution.

3. a. Motion for execution of final and executory judgment should be served on adverse party and
set for hearing;

b. In case of appeal, motion is filed with court of origin supported by certified true copies of final
judgment of appellate court.

3. Appellate court may on motion order court of origin to issue writ of execution (SC Circular No. 24-
94, 4/18/94)

4. Judgments NOT stayed by appeal (immediately executory, unless court provides otherwise)
 1. Actions for injunction
2. Receivership
3. Accounting
4. Support
5. Judgments declared immediately executory

5. A final and executory judgment may be executed on motion within 5 years from entry. May be
revived and enforced by action after lapse of 5 years but before 10 years from entry. Revived
judgment may be enforced by motion within 5 years from entry and thereafter by action before
barred by statute of limitations – file motion within 10 years from the finality of the revived judgment.

6. Execution in case of party’s death:

1. Death of judgment obligee – application of his executor or administrator or successor-in-interest

2. Death of judgment obligor –
1. Against his executor, etc. if the judgment be for recovery of real or personal property or the
enforcement of a lien thereon.
2. If death after execution is actually levied upon his property, it may be sold for satisfaction of the
obligation.

à If the judgment obligor dies after the entry but before levy, execution will issue if it be for the
recovery of real or personal property. However, if judgment is for a sum of money, and the judgment
obligor dies before levy, such judgment cannot be enforced by writ of execution but must be filed as
a claim against his estate.

7. Writ of execution:

1. Shall issue in the name of the Republic of the Phils from court which granted the motion
2. State the name of the court, case number and title, dispositive portion of the judgment order
3. Require the sheriff or other proper officer to whom it is directed to enforce the writ according to its
terms

8. Manner of executing writ:

1. If judgment against property of the judgment obligor – out of real or personal property with interest
2. If against his real or personal property in the hands of the personal representatives, heirs,
devisees, legatees, tenants, or trustees of the judgment obligor – out of that property, with interest
3. If for sale of real or personal property – to sell property, describing it and apply the proceeds in
conformity with judgment.
4. If for delivery of possession of property – deliver possession of the same to the party entitled to it,
describing it, and to satisfy any costs, damages, rents, or profits covered by the judgment out of
the personal property of the person against whom it was rendered, and out of real property if
sufficient personal property cannot be found.
 5. In all cases, writ of execution shall specifically state the amount of the interest, costs, damages,
rents, or profits due as of date of issuance of writ, aside from principal obligation.

à Judgment obligor is given option to choose which property may be levied on sufficient to satisfy
the judgment.

9. Property exempt from execution

1. Family home as provided by law, homestead in which he resides, and land necessarily used in
connection therewith;
2. Tools and implements used in trade, employment, or livelihood;
3. 3 horses, cows, or carabaos or other beasts of burden used in his ordinary occupation;
4. Necessary clothing and articles for ordinary personal use, excluding jewelry;
5. Household furniture and utensils necessary for housekeeping not exceeding P3,000;
6. Professional libraries and equipment of judges, lawyers, physicians, etc. not exceeding P300,000;
7. One fishing boat and accessories not more than P100,000 owned by a fisherman and by which he
earns his living;
8. Salaries, wages, or earnings for personal services within the 4 months preceding the levy which
are necessary for the support of the family;
9. Lettered gravestones;
10. Money, benefits, annuities accruing or in any manner growing out of any life insurance;
11. Right to receive legal support or any pension or gratuity from the government;
12. Properties especially exempted by law.

à Exemption does not apply if execution upon a judgment for its purchase price or for foreclosure of
mortgage.

à Right of Exemption is a personal right granted to the judgment creditor. The sheriff may thus not
claim it.

10. Third party claims:

1. Purpose of bond filed by judgment obligee or plaintiff is to indemnify third-party claimant, not the
sheriff or officer;
2. Amount of bond not less than value of property levied on;
3. Sheriff not liable for damages if bond is filed;
4. Judgment obligee or plaintiff may claim damages against third-party claimant in the same or a
separate action.
5. 3rd Party claimant may vindicate his claim to property levied in a separate action because
intervention is no longer allowed since judgment already executory; in preliminary attachment and
replevin, 3rd party claimant may vindicate his claim to the property by intervention since the action
is still pending.

11. Who may redeem real property sold:

 1. Judgment obligor or his successor in interest in the whole or any part of the property;
2. Creditor having lien by virtue of an attachment, judgment, or mortgage on the property sold
subsequent to the lien under which the property was sold. (Redeeming creditor is termed a
redemptioner).

12. Judgment obligor has one year from the date of the registration of the certificate of sale to
redeem property sold by paying the purchaser the amount of his purchase, with 1% per month
interest plus any assessments or taxes which he may have paid thereon after purchase with interest
on said amount at 1% per month.

Redemptioners have one year to redeem from the date of registration of the certificate of sale. They
may also redeem beyond one-year period within 60 days after the last redemption, with 2 % interest
on the sum to be paid on the last redemption. The judgment obligor’s right to redeem within 60 days
from last redemption is limited to the one-year period, beyond which he can no longer redeem.

à Purchaser or redemptioner not entitled to receive rents and income of property sold inasmuch as
these belong to the judgment obligor until the expiration of the period of redemption.

13. Effect of judgment or final orders

1. In case of judgment against a specified thing, probate of will, or administration of estate or legal
condition or status, it is conclusive on the title or condition, status, relationship, will or
administration.
2. In other cases/matters directly adjudged, or matters relating thereto that could have been raised
subsequent to commencement of action, judgment is conclusive between parties and their
successors in interest.
3. In any other litigation, that only is deemed to have been adjudged in a former judgment or which
was actually and necessarily included therein.

14. Effect of foreign judgment

1. Judgment upon a specific thing, conclusive upon title to the thing;

2. If against a person, judgment is presumptive evidence of a right as between the parties and their
successors in interest;

15. When foreign judgment may be repelled

1. Evidence of want of jurisdiction

2. Want of notice to party
3. Collusion
4. Fraud
5. Clear mistake of law.
16. Requisites for res judicata
1. Final former judgment
 2. Judgment is on the merits
3. Rendered by a court of competent jurisdiction
4. Between first and second actions, identity of subject matter, parties and cause of action.

17. When quashal of writ of execution proper

1. Improperly issued
2. Defective in substance
3. Issued against the wrong party
4. Judgment was already satisfied
5. Issued without authority
6. Change of the situation of the parties renders execution inequitable
7. Controversy was never validly submitted to the court
8. Writ varies the terms of the judgment
9. Writ sought to be enforced against property exempt from execution
10. Ambiguity in the terms of the judgment

18. SPECIAL JUDGMENT – requires the performance of any other act than the payment of money
or the sale or delivery of real or personal property.

19. Remedies against executory judgments or orders:

1. Petition for relief

2. Direct attack
3. Collateral attack – judgment is null on its face or court had no jurisdiction

20. When court may order execution even before an executory judgment and pending an appeal

1. a. Lapse of time would make the ultimate judgment ineffective;

2. b. Appeal is clearly dilatory;
3. c. Judgment is for support and the beneficiary is in need thereof;
4. d. Articles subject of the case are perishable;
5. e. Defendants are exhausting their income and have no other property aside from the
proceeds from the subdivision of lots subject of the action;
6. f. Movants were in extreme need of the premises subject of the suit and the bond to answer
for damages in case of reversal on appeal (supersedeas bond) was posted by them;
7. g. Judgment debtor is in imminent danger of insolvency;
8. h. Prevailing party is of advanced age and in a precarious state of health and the right in the
judgment is non-transmissible being for support;
9. i. Prevailing party posts sufficient bond to answer for damages in case of reversal of
judgment
à But in most cases, the mere filing of a bond is not sufficient justification for discretionary
execution.

21. Order granting writ of execution ONLY appealable when:

1. Order varies terms of the judgment

2. When vague and court renders what is believed to be wrong interpretation.
22. Garnishment – act of appropriation by the sheriff if the property involved is money, stocks, or
other incorporeal property in the hands of third persons; merely sets apart such funds but does not
constitute the creditor the owner of the garnished property.

23. Persons disqualified from participating in the execution sale:

1. Officer conducting the execution sale or his deputy;

2. Guardian with respect to the property under his guardianship;
3. Agents, the property entrusted to them, unless with principal’s consent;
4. Executors and administrators, the property of the estate under administration;
5. Public officers and employees, the property of the State or any subdivision thereof, or any GOCC,
the administration of which has been entrusted to them;
6. Justices, judges, prosecuting attorneys, clerks of courts, and other officers and employees
connected with the administration of justice, the property and rights in litigation or levied upon an
execution before the court within whose jurisdiction or territory they exercise their respective
functions;
7. Lawyers, the property and rights which may be the subject of litigation in which they take part by
virtue of their profession;
8. Others specifically disqualified by law. (e.g. seller of goods who exercise right of resale of goods).
Rule 40 Appeal from MTC to RTC
1. Appeal from judgment or final order of MTC taken to RTC exercising jurisdiction over the area to
which MTC pertains. File notice of appeal with the MTC which rendered decision appealed from
within 15 days after notice of such judgment.
2. Record on appeal is filed within 30 days and required only for special proceedings
3. Appellate docket fees paid to clerk of court of MTC – payment not a condition precedent for
perfection of appeal but must nonetheless be paid within the period for taking appeal;
4. Procedure for appeal from cases dismissed without trial for lack of jurisdiction:
1. If affirmed because the MTC has no jurisdiction, RTC will try case on the merits as if it has original
jurisdiction;
2. If reversed, the case shall be remanded to the MTC;
3. If the first level court tried the case on the merits without jurisdiction, the RTC should not dismiss
the case but shall decide it in the exercise of original jurisdiction.

Rule 41 Appeal from the RTC

 1. Appeal may be taken from a judgment or final order that completely disposes of the case or of a
particular matter therein.
2. No appeal may be taken from:
1. Order denying a motion for new trial or recon;
2. Order denying a petition for relief or any similar motion seeking relief from judgment;
3. Interlocutory order;
4. Order disallowing or dismissing an appeal;
5. Order denying a motion to set aside a judgment by consent, confession, compromise on the
ground of fraud, mistake, or duress, or any other ground vitiating consent;
6. Order of execution;

à Not appealable because execution is only the result of the judgment. If order of execution is not in
accord with the dispositive portion, remedy is certiorari under Rule 65.

7. Judgment or final order for or against one or more of several parties or in separate claims, while
the main case is pending, unless the court allows an appeal therefrom;
8. Order dismissing an action without prejudice;

à In all these cases, aggrieved party may file an appropriate civil action under Rule 65.

1. Ordinary appeal from RTC (in the exercise of original jurisdiction) to CA is by filing notice of appeal
with the RTC within 15 days from notice of its judgment. Record on appeal required only for
special proceedings and where multiple appeals allowed filed within 30 days.
2. Motion for extension of time to file a motion for new trial or reconsideration is prohibited.
3. Contents of Notice on appeal:
1. Names of the parties to the appeal;
2. Specify judgment or final order or part thereof appealed from;
3. Court to which the appeal is being taken;
4. Material dates showing timeliness of appeal;

6. Contents of Record on appeal:

1. Full names of all parties to the proceedings shall be stated in the caption;
2. Include judgment or final order from which appeal taken;
3. In chronological order, copies of only such pleadings, petitions, etc. and all interlocutory orders as
are related to the appealed judgment;
4. Data showing that appeal perfected in time – material data rule;
5. If an issue of fact is to be raised, include by reference all the evidence, oral or documentary, taken
upon the issues involved.

7. Appeal from decision of RTC in appellate jurisdiction is by petition for review filed with CA.

8. Where only questions of law are raised, by petition for review on certiorari with SC.

9. Notice of Appeal and Record of Appeal distinguished:

 Notice of Appeal Record of Appeal

Deemed perfected as to appellant with

Party’s appeal by notice of appeal deemed respect to the subject matter upon the
perfected as to him upon the filing of the approval of the record on appeal filed in due
notice of appeal in due time time

Court loses jurisdiction only over subject

matter upon approval of records on appeal
filed in due time and expiration of the time to
appeal of other parties.
Court loses jurisdiction over case upon
perfection of the appeals filed in due time and
expiration of time to appeal of other parties

10. Failure to pay appellate docket fees within the reglamentary period is ground for dismissal of
appeal.

11. General Rule: An ordinary appeal stays the execution of a judgment

Exceptions: a. Decisions of quasi-judicial body appealed to the CA

b. Executions pending appeal

c. Cases covered by Summary Procedure

Rule 42 Petition for Review from the RTC to the CA

1. 1. Form and contents of petition for review (from RTC to CA)

In 7 legible copies:

1. Full names of parties to case, without impleading the lower courts or judges thereof;
2. Indicate specific material dates showing it was filed on time;
3. Concise statement of matters involved, issues raised, specification of errors of fact or law, or both
allegedly committed by the RTC, and the reasons or arguments relied upon for the allowance of
the appeal;
4. Accompanied by clearly legible duplicate originals or true copies of the judgments or final order of
both MTC and RTC;
5. Certification under oath of non-forum shopping.
1. 2. Contents of comment

In 7 legible copies, accompanied by certified true copies of material portions of record and other
supporting papers:

1. State whether or not appellee accepts the statement of matters involved in the petition;
2. Point out such insufficiencies or inaccuracies as he believes exists in petitioner’s statement of
matters;
 3. State reasons why petition should not be give due course.

3. CA may:

1. Require respondent to file a comment; or

2. Dismiss the petition if it finds:
1. Patently without merit
2. Prosecuted manifestly for delay
3. Questions raised are to insubstantial to require consideration
Rule 43 Appeals from the CTA and Quasi-Judicial Agencies to the CA
1. 1. Appeals from judgments and final orders of the Court of Tax Appeals and quasi-judicial
agencies in exercise of quasi-judicial functions (unless otherwise provided by law and the Labor
Code [NLRC decisions]) shall be by petition for review to the CA, to be taken within 15 days from
notice of award or judgment or from notice of the denial of the motion for reconsideration. Only 1
Motion for reconsideration allowed
2. 2. Quasi-judicial agencies covered:
1. Civil Service Commission;
2. Central Board of Assessment Appeals;
3. Securities and Exchange Commission;
4. Office of the President;
5. Land Registration Authority;
6. Social Security Commission;
7. Civil Aeronautics Board;
8. Bureau of Patents, Trademarks and Technology Transfer;
9. National Electrification Administration;
10. Energy Regulatory Board;
11. National Telecommunications Commission;
12. Department of Agrarian Reform under RA No. 6657;
13. GSIS;
14. Employees Compensation Commission;
15. Agricultural Inventions Board;
16. Insurance Commission;
17. Construction Industry Arbitration Commission;
18. Voluntary arbitrators
à St. Martin’s Funeral Home vs. NLRC – DECISIONS OF THE NLRC – ORIGINAL ACTION FOR
CERTIORARI UNDER RULE 65 FILED WITH THE CA, NOT SC
à Fabian vs. Desierto – Appeals from decisions of the Office of the Ombudsman in administrative
disciplinary cases should be taken to the CA under Rule 43.
Æ According to A.M. no. 99-2-02-SC (promulgated February 9, 1999), any appeal by way of
petition for review from a decision, final resolution or order of the Ombudsman, or special civil action
relative to such decision, filed with the SC after March 15, 1999 shall no longer be referred to the
CA, but shall be dismissed.
Rule 45 Appeal by Certiorari to the Supreme Court
1. Question of Law – exists when doubt or difference arises as to what the law is, based on a
certain state of facts

Question of Fact – exists when doubt or difference arises as to the truth or the falsehood of alleged
facts

2. Findings of fact of the CA may be reviewed by the SC on appeal by certiorari when:

1. The conclusion is a finding grounded entirely on speculations, surmises, or conjectures;

2. The inference made is manifestly mistaken, absurd, or impossible;
3. There is grave abuse of discretion;
4. The judgment is based on misapprehension of facts;
5. Findings of fact of trial court and CA are conflicting;
6. The CA, in making its findings, went beyond the issues of the case and the same is contrary to the
admissions made;
7. CA manifestly overlooked certain relevant facts not disputed by the parties and which, if properly
considered, would justify a different conclusion.

3. Certiorari as mode of appeal:

From judgment or final order of the CA, Sandiganbayan, RTC on pure questions of law, or other
courts whenever authorized by law, by filing a petition for review on certiorari with the SC within 15
days from notice of judgment.

4. Rule 45 and Rule 65 distinguished:

Rule 45 Rule 65

No need for Motion for Recon Motion for Recon generally required

Applies to interlocutory orders rendered in

Relates to final judgments excess/lack of jurisdiction

An appeal Not an appeal in the strict sense

15 days from notice of judgment 60 days from notice of judgment

à Kho vs. Camacho: An RTC judge has no right to disapprove a notice of appeal on the ground that
the issues raised involve a pure question of law, and that the mode of appeal is erroneous. That is
the prerogative of the CA, not the RTC judge. A notice of appeal need not be approved by the
judge, unlike a record on appeal.
Rule 47 Annulment of Judgments or Final Orders and Resolutions
1. Grounds for annulment of judgment of RTC in civil cases:
1. Petition for annulment available only if ordinary remedies of new trial, appeal, petition for
relief or other appropriate remedies no longer available through no fault of the Petitioner.
1. Extrinsic fraud – not available as a ground if availed of earlier in a motion for new trial or petition for
relief
 2. Lack of jurisdiction.

3. Periods:

1. For extrinsic fraud – four years from discovery;

2. Lack of jurisdiction – must be filed before action barred by laches.

4. Effects of judgment of annulment – gives the CA authority to order the trial court on motion to try
the case if the ground for annulment is extrinsic fraud, but not if it is lack of jurisdiction.

à Prescriptive period for refiling the original action is suspended unless the extrinsic fraud is
attributable to the plaintiff in the original action.

Rule 50 Dismissal of Appeal

1. 1. Grounds for dismissal of appeal by the CA:
1. Failure of the record on appeal to show on its face that the appeal was taken within the
reglamentary period;
2. Failure to file the notice of appeal or record on appeal within the period;
3. Failure of the appellant to pay the docket and other lawful fees;
4. Unauthorized alterations, omissions, or additions in the approved record on appeal;
5. Failure of the appellant to serve and file the required number of copies of his brief or memorandum
within the time provided;
6. Absence of specific assignment of errors in appellants brief or page references to the record;
7. Failure of the appellant to take necessary steps for the completion or correction of the record within
the time limited by the order;
8. Failure of appellant to appear at the preliminary conference or to comply with orders, circulars, or
directives of the court without justifiable cause
9. Judgment or order appealed from is not appealable.
Rule 51 Judgment
1. Memorandum decisions are permitted in the CA.
2. After judgment or final resolution of the CA and dissenting or separate opinions if any, are signed
by the Justices taking part, they shall be delivered for filing to the clerk who shall indicate thereon
the date of promulgation and cause true copies to be served upon parties or counsel.
3. Date when judgment or final resolution becomes executory shall be deemed as date of entry.
RULE 56 Procedure in the Supreme Court
1. 1. Original cases cognizable – exclusive list:
1. Petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus;
2. Disciplinary proceedings against judges and attorneys;
3. Cases affecting ambassadors, other public ministers, and consuls.
2. An appeal to SC can only be taken by petition for review on certiorari, except in criminal cases
where the penalty imposed is death, reclusion perpetua, or life imprisonment.

3. Grounds for dismissal of appeal by SC

 1. Failure to take appeal within the reglementary period;
2. Lack of merit in the petition;
3. Failure to pay the requisite docket fee and other lawful fees or to make deposit for costs;
4. Failure to comply with the requirements regarding proof of service and contents of and the
documents which should accompany the petition;
5. Failure to comply with any circular, directive or order of the SC without justifiable cause;
6. Error in choice or mode of appeal
7. Case is not appealable to the SC.
1. Discretionary upon SC (and CA) to call for preliminary conference similar to pre-trial.
2. General Rule: Appeal to SC by notice of appeal shall be dismissed.
Exception: In criminal cases where the penalty imposed is life imprisonment, or when a lesser
penalty is imposed but involving offenses committed on the same occasion or arising out of the
same occurrence which gave rise to the more serious offense for which the penalty of death or life
imprisonment is imposed (Section 3, Rule 122)
1. Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the CA for
decision or appropriate action, without prejudice to considerations on whether or not to give due
course to the appeal as provided in Rule 45.

Provisional Remedies

Provisional remedies (ancillary/auxiliary)

à Writs and processes available during the pendency of the action which may be resorted to by a
litigant to preserve and protect rights and interests therein pending rendition, and for the purpose of
ultimately affecting a final judgment in the case.

à PROVISIONAL – constituting temporary measures availed of during the pendency of the action.

à ANCILLIARY – incidents in and dependent on the result of the main action.

Rule 57 Preliminary Attachment

1. 1. Preliminary Attachment
1. Available even if the recovery of personal property is only an incidental relief sought in the action;
2. May be resorted to even if the personal property is in the custody of a third person;
3. Extends to all kinds of property, real or personal or incorporeal;
4. To recover possession of personal property unjustly detained, presupposes that the same is being
concealed, removed, or disposed of to prevent its being found or taken by the applicant;
5. Can still be resorted to even if the property is in custodia legis, as long as the property belongs to
the defendant, or is one in which he has proprietary interests, AND with permission of the court

2. Grounds
 1. Recovery of specified amount of money and damages, except moral or exemplary, where party is
about to depart from the Phils with intent to defraud creditors;
2. Action for money or property embezzled or for willful violation of duty by public officers, officers of
corporation, agent, or fiduciary;
3. Recovery of possession of property (both real and personal) unjustly detained, when the property
is concealed or disposed of to prevent is being found or taken;
4. Action against party guilty of fraud in contracting the debt or incurring the obligation or in the
performance thereof;
5. Action against party who is concealing or disposing of property, or is about to do so, with intent to
defraud creditors;
6. Action against party who is not a resident of the Phils and cannot be found therein or upon who
service by publication can be made.

3. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:

Enforcement of writ of preliminary attachment must be preceded by or simultaneously accompanied

by service of summons, copy of complaint, application and affidavits for the attachment and the bond
upon the adverse party; BUT the requirement of prior or contemporaneous service of summons shall
not apply where the summons could not be served despite diligent efforts, or the defendant is a
resident of the Phils temporarily absent therefrom, or the defendant is a non-resident of the Phils or
the action is in rem or quasi in rem.
1. 4. When preliminary attachment is discharged
1. a. Debtor posts a counterbond or makes requisite cash deposit- if attachment to be
discharged is with respect to particular property, counterbond or deposit shall be equal to
the value of the property as determined by the court; in all other cases, amount of
counterbond should be equal to the amount fixed in the order of attachment.

à CASH DEPOSIT OR COUNTERBOND SHALL SECURE THE PAYMENT OF ANY JUDGMENT

THAT ATTACHING PARTY MAY RECOVER

1. b. Applicant’s bond is insufficient or sureties fail to justify;

2. c. Attachment was improperly or irregularly issued;
3. d. Property attached is exempt from execution;
4. e. Judgment is rendered against attaching party;
5. f. Attachment is excessive – discharge is with respect to the excess

5. Application for discharge may only be filed with the court where the action is pending and may
be filed even before enforcement of the writ so long as there has been an order of attachment.

6. When to apply for damages against the attachment bond

1. Before trial;
2. Before appeal perfected;
3. Before judgment becomes executory;
 4. In the appellate court for damages pending appeal, before judgment becomes executory.
1. 7. When judgment becomes executory, sureties on counterbond to lift attachment are charged
and can be held liable for the amount of judgment and costs upon notice and summary
hearing. There is no need to first execute judgment against the judgment obligor before
proceeding against sureties.
2. 8. Claims for damages cannot be subject of independent action except:
1. a. When principal case is dismissed by the trial court for lack of jurisdiction without
giving the claiming party opportunity to prove claim for damages;
2. b. When damages sustained by a third person not a party to the action.
Rule 58 Preliminary Injunction
1. 1. Preliminary injunction distinguished from Prohibition

Preliminary Injunction
Prohibition
Generally directed against party to the action Directed against a court, tribunal, or person
but may be against any person exercising judicial powers

May be on the ground that the court against

whom the writ is sought acted without or in
Does NOT involve the jurisdiction of the court excess of jurisdiction;

Always a main action

May be main action itself or just a provisional

remedy in the main action

2. Grounds for Preliminary Injunction

1. Plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts
(latter is preliminary mandatory injunction);
2. The commission of acts or non-performance during pendency of litigation would probably work
injustice to the plaintiff;
3. Defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of the
action and tending to render judgment ineffectual.

3. Injunction may be refused or dissolved when:

1. Complaint is insufficient;
2. Defendant is permitted to post a counterbond it appearing that he would sustain great and
irreparable injury if injunction granted or continued while plaintiff can be fully compensated;
3. Plaintiff’s bond is insufficient or defective

4. No Preliminary Injunction or TRO may be issued without posting of bond and notice to adverse
party and hearing.

5. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:

à 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 and the applicant’s affidavit and bond, upon the adverse party
in the Phils; BUT the requirement of prior or contemporaneous service of summons shall NOT apply
where the summons could not be served despite diligent efforts, or the defendant is a resident of the
Phils temporarily absent therefrom, or the defendant is a non-resident of the Phils

à Difference with principle in preliminary attachment – In attachment, the principle applies only in
the implementation of the writ, while in applications for injunction or TRO, this principle applies
before the raffle and issuance of the writs or TRO.

6. TRO good for only 20 days from service; 60 days for CA; until further orders from SC.

7. TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave injustice
and irreparable injury. Good for 72 hours from issuance, within which judge must comply with
service of summons, complaint, affidavit and bond, and hold summary hearing to determine whether
TRO should be extended for 20 days. In no case can TRO be longer than 20 days including 72
hours.
8. No TRO, preliminary injunction or preliminary mandatory injunction may issue against the
government in cases involving implementation of government infrastructure projects. (Garcia vs.
Burgos, reiterated in Administrative Circular no. 7-99, promulgated June 25,1999)
Rule 59 Receivership
1. 1. When receiver may be appointed:
2. 2. When receivership may be denied/lifted
1. Party has an interest in the property or fund subject of the action and such is in danger of being
lost, removed, or materially injured;
2. Action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or
materially injured and that its value is probably insufficient to discharge the mortgage debt, OR that
the parties have stipulated in the contract of mortgage;
3. After judgment, to preserve the property during the pendency of the appeal, or to dispose of it, or
to aid in execution when execution has been returned unsatisfied or the judgment debtor refuses to
apply his property to satisfy judgment, or to carry out the judgment.
4. When appointing one is the most convenient and feasible means to preserve, administer, or
dispose of the property in litigation.
1. Appointment sought is without sufficient cause;
2. Adverse party files sufficient bond for damages;
3. Applicant or receiver’s bond is insufficient.

3. Both the applicant for the receivership and the receiver appointed must file separate bonds.
4. In claims against the bond, it shall be filed, ascertained and granted under the same procedure
as Section 20, Rule 57, whether is be damages against the applicant’s bond for the unlawful
appointment of the receiver or for enforcing the liability of the sureties of the receiver’s bond by
reason of the receiver’s management (in the latter case, no longer need to file a separate action).

Rule 60 Replevin
1. 1. Replevin
2. 2. Defendant entitled to return of property taken under writ if:
1. Available only where the principal relief sought in the action is the recovery of possession of
personal property;
2. Can be sought only where the defendant is in the actual or constructive possession of the personal
property involved.
3. Extends only to personal property capable of manual delivery;
4. Available to recover personal property even if the same is NOT being concealed, removed, or
disposed of;
5. Cannot be availed of if property is in custodia legis, as where is it under attachment, or was seized
under a search warrant or distrained for tax assessment.
1. He seasonably posts redelivery bond
2. Plaintiff’s bond is insufficient or defective
3. Property is not delivered to plaintiff for any reason.

à Replevin bond is only intended to indemnify defendant against any loss that he may suffer by
being compelled to surrender the possession of the disputed property pending trial of the
action. Thus, surety not liable for payment of judgment for damages rendered against plaintiff on a
counterclaim for punitive damages for fraudulent or wrongful acts committed by the plaintiffs which
are unconnected with the defendant’s deprivation of possession by the plaintiff.