PROVISIONAL REMEDIES 2013 MIDTERMS
COVERAGE rendered in your favor, you can always have
BASIC PRINCIPLES
What are Provisional Remedies? When do you
avail of provisional remedies? Take note that
these are ancillary remedies, in other words,
attached only to the real action that you filed
in court. These are like temporary reliefs
when you are filing an action awaiting from the
judgment in order to make sure that your
interest is protected, you make sure that
should there be any judgment that would be
rendered in your favor, it would not be...you
may from the very start at the commencement
of the action avail of the provisional remedies.
What are these provisional remedies?
1. We have Preliminary
Attachment;
2. We have Preliminary
Injunction. What else do we
have?
3. Replevin;
4. We have Receivership, and
5. Support Pendente Lite. Alright.
Support Pendente Lite is not
really a problem anymore- this
is usually asked for support-
because of the passage of
9262 or you have that
protection, permanent
protection or your PPO where
you may also avail of support
from the very start of the
action that you filed against
the husband, the respondent.
We’ll go into that.
Now the point here, the nature of provisional
remedies that we have enumerated here guys,
is that they are transient, provisional, meaning
they are just simply temporary reliefs. It’s not
yet the action itself, okay? It is just simply a
remedy that a litigant may avail while his main
action is being heard by the court.
So for example, you filed an action for
collection of sum of money. You have the
possibility that the defendant has disposed of
his property while the case is pending and thus
it would render the judgment in court if it is
issued in favor of the plaintiff useless or futile
because the defendant has no more properties
that you can have the judgment satisfied
against. You must from the very start look for
properties of the defendant that you can put
under the custody of the court so that in the
meantime these properties will not be disposed
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of by the defendant, and if the judgment is
his properties sold later at a public auction and
the proceeds of which apply to the judgment
that may be rendered by the court in your
favor.
So see how practical it is? Is that clear here,
guys? There are certain procedures however,
before you can avail of this remedy. It’s not as
simple as that. There are requirements and
thus you need to understand the rules on how
this remedy can be availed of. Do you
understand here?
Now, earlier I have said that these remedies
are ancillary. Ancillary- in the sense that if the
main action is disposed of or dismissed for lack
of basis, then necessarily the remedy also will
not prosper. Because there is no leg to stand
on if the main action is dismissed or the
complaint itself. The provisional remedy is
dependent on the action that is filed for it to
prosper. So if it is dismissed, then what
attachment are you talking about if there is no
basis for the reliefs of your complaint? And at
the same time guys, as I have said also earlier,
it is also to make sure that whatever judgment
the court will render, would be effective. Is
that clear? Do we understand each other here?
All right, then.
Let’s talk about the different provisional
remedies.
1. You have the Attachment.
What else do you have?
2. Preliminary Injunction. You
also have what?
3. Replevin,
4. Support Pendente Lite, and
5. Receivership. Let’s talk about
attachment.
Preliminary Attachment
On attachment, what are the grounds? First
and foremost, what do you understand by
attachment? Anyone here? Anyone? What is
attachment? What can you attach? When you
attach to your boyfriend, not literally. Why,
why are you laughing? What is the
consequence? Not a child, ha? If you’re asking
for some assurance or relief, assurance that
when you graduate, you will be my wife no, is
that the kind of attachment we are referring
here?
What is your basic understanding of
attachment? This is preliminary, okay?
Meaning, the court while the case is pending.
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This is not like attachment for purposes of
execution- when the judgment becomes final,
you attach the property of the defendant so
that the same can be sold on public auction
and the proceeds of which will be applied to
the judgment. Of course, that is not the kind.
This is just ancillary as I have explained so
therefore, this can be availed of only during
the pendency of the case before the judgment
becomes final. Alright, then.
What is being done if you are the plaintiff of
the case and you ask for a preliminary
attachment, what is your expectation on the
court? What do you expect that the court will
do in your application for preliminary
attachment? In other words, what is this relief?
What is this remedy? What do you attach? The
property of the defendant. And when you have
attached the property of the defendant, what is
done? It will be taken into custody of the
court? It is not the court that will take the
property literally ha? It is the law that will take
custody.
WHEN TO APPLY FOR A WRIT OF PA
When do you apply for a preliminary
attachment? When?
1. Upon the commencement of
the action, meaning at the
start, at the time when you
filed your complaint. Do you
follow here?
2. Or anytime before a judgment
is rendered by the trial court.
Do you follow what I’m saying?
So again, take note: The writ of preliminary
attachment that may be applied is an ancillary
remedy. When you file a complaint, it is the
remedy by which the property of the defendant
is taken into custody of law at the
commencement of the action or anytime
before the entry of the judgment as security.
What is the difference then between the old
rules as compared to the new rules as regards
to the manner of applying for a writ of
preliminary attachment? The new rules now
state that “at the commencement of the action
or at anytime before the entry of judgment.”
What about the old rules? The term used is “at
anytime during the progress of the same”
-meaning, while the case is going on. Actually,
the meaning is the same but this time, clearer
na ang new rules kay sa old, during man. So
mas clearer ang new rules kay ingon man na
“at the commencement of the action or
anytime before a judgment is rendered,
plaintiff may apply for a writ of preliminary
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attachment.” Any questions or clairifications
so far regarding on that?
PURPOSES OF A WRIT OF PA
What could be a reason again for applying for a
writ of preliminary attachment, guys?
1. To secure your interest.
That’s your only understanding
of the purpose of attachment?
What if the defendant you are suing is not a
resident of the Philippines? How does
attachment help you? You should know this
guys, ha? When you go into the practice of
law, and defendant cannot be found or
otherwise he is no longer a resident but he has
properties in the Philippines, what do you do
for the court to acquire jurisdiction over your
action? It would be an in rem case or a quasi in
rem? What will you do? You place the property
in the custody of law, in the custody of the
court. For what purpose?
2. In order to acquire
jurisdiction over the action
you filed.
It is not an in rem case. The personal case will
be converted into a quasi in rem case. Why
does the court acquire the jurisdiction over the
action by attachment? Ha? Why? Because
basically, diba the service of summons is the
mode of acquiring jurisdiction over the person?
Unya, wa man diri ang taw! Diba? But how do
you serve the summons? You cannot, because
of the defendant cannot be located as in a non-
resident of the country. So the remedy if you
are the lawyer of the plaintiff, you have the
property placed in jurisdiction of the court
because of the principle that the owner of the
property- this applies to real property subject
of the attachment, ha? We are talking of real
property, yuta- he is considered as a mere
accessory of the real property, the principal
being the real property. So what is the
principle on accessory in relation to the
principal? Where the principal is, accessory
follows. So which means, that the court who
has taken custody by attachment or
jurisdiction over the property of the defendant,
then there’s no way that the defendant -the
person, would not know of the case filed
against him because wherever the property is,
he is presumed to be where the property is
situated. So if the property is taken,
attached, I mean, not literally but attached,
then he must have known that there was a
case and that will serve as his notice. The
publication of summons is a mere compliance
of due process. That’s not jurisdictional. What
gives the court jurisdiction is the attachment of
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the property. So attachment may have
another purpose, not just to secure the
judgment or to protect your interest as a
plaintiff. It can also be a mode of acquiring
jurisdiction over the action, notwithstanding
the absence of the defendant in the country,
your action can prosper, will proceed.
WHO CAN APPLY FOR A WRIT OF PA
Okay. Who can then apply for a writ of
preliminary attachment? Kinsa man? The
plaintiff ra? How about the defendant? Can he
apply for attachment? YES. How? How come?
1. Plaintiff- because he is seeking
for a favorable judgment like a
collection of sum of money,
understandably.
Ang defendant ang gipaninglan. But can he
apply for attachment? Yes.
2. The defendant. In a while the case is going on or before judgment
counterclaim!
Because it is possible that the complaint is
baseless and thereby causing injury to the
defendant- gipagasto ug litigation expenses
especially on attorney’s fees. So to make sure,
that kung baseless man ang complaint, this
defendant can get back at the plaintiff. Do you
follow here? Thus he may apply also for
attachment. So it is not limited only to the
plaintiff applying for a preliminary attachment.
Who else?
3. A cross-claimant!
You know what a cross-claimant is. Plaintiff,
defendant. Ingon ang defendant, ‘dili man ako
ang utangan, kani man. Co-maker ra man ko,
cross-claimant!’ File siya ug complaint against
his- it would be, duha lang sa, co-maker, co-
defendant as cross-claim. So if he will be the
one ordered by the court to pay for the
amount, he can always go after the principal
debtor. Kasabot mo? Now he becomes now the
cross-claimant. Now, who else?
4. A third-party defendant in
his counterclaim.
Do you follow? Is that clear? The basic rule is
basically puro sila claimant. The bottom line,
claimant sila in all those cases. Kasabot? Or it
is usually the plaintiff.
Alright, very good then. Now then, we go into
the different types of attachment. You think
there’s only one type.
TYPES OF ATTACHMENT
What are the different types of attachment?
We have
1. Preliminary Attachment under
Rule 57.
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That’s what you are familiar with. You have the
mastery. Di ba? And then you have the
2. Final Attachment or sometimes
known as the Levy on
Execution.
Diba unahon nimo ang attachment, then
execution na, personal? Kung kulang ang
personal, you go after the real property. And
then there is
3. Garnishment.
Unsa may garnishment? Those who have
credits, in favor of the defendant. You can run
after them. Mailisan ang creditor, dili na mao
ang imong gikiha. You do not confuse the
provisional remedies from these two other
kinds of attachment.
First, let’s take up Preliminary Attachment. It is
governed by Rule 57. You attach the property
or the commencement as security for the
satisfaction of a judgment that you may
recover. You understand? Dili ni ihatag nimo sa
defendant. Ang korte ani ang nay kustodiya.
But sometimes the mistake of plaintiffs, they
think that inig attach nimo, adto nato sa
plaintiffs. That shouldn’t be the case! Adto na
didto sa sherrif. Unya ang sherrif, asa man na
ibutang niya? Sa warehouse! Kinsa may
mugasto sa bonded warehouse? Alangan
naman ug Sherrif. Ang plaintiff! Muingon ang
plaintiff, ‘wala man koy kwarta!’ Aw, di ibutang
nalang na nimo didto sa korte, wala man koy
ka parkingan. Alangan ipagamit sa sherrif,
makiha pa nalang ang sherrif. Alright.
What is Final Attachment? The final
attachment- It is only issued to satisfy a
judgment which has already become final and
executory. Meaning, you attach the property of
the defendant to be sold on a public auction for
the purpose of satisfying a judgment. This kind
of attachment is what we call levy on execution
and that is governed by Rule 39 of the Rules of
Court. Take note of that in the MCQ.
GARNISHMENT
What is garnishment? On the other hand,
garnishment is actually a variation of either
attachment or execution. It is a type of
attachment or execution by reaching the
credits belonging to the judgment debtor who
is the defendant usually, owing to a third
person stranger to the litigation. This is similar
to sequestration. So kani siya, utangan sa
defendant, dili ni siya party to the main case.
But you know, this third person is the debtor of
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the defendant. So what do you do? If it has
money in the bank, you garnish. So example,
when you garnish the bank account of a
depositor, you attach it as a credit, since the
bank is the debtor of the depositor. So what is
meant here guys, it is the bank that is the
debtor of the defendant. Diba kung ikaw
depositor, ikaw ang creditor? Ang utangan
nimo ang bangko. Lahi man diri. Ang mga
bangko mura man ug maoy tag-iya sa atong
kwarta. Lisud-lisoron man ta. Diba, usang oras
kang pinaabot para mu withdraw sa imong
kwarta. Ikaw pay may mubayad ug interest sa
imong kaugalingong kwarta na sila may
utangan nimo. In the Midlle East, you pay
them for the keeping, to guard your money in
the bank. Ang bangko may utangan nimo. You
garnish the money of the defendant who is the
depositor of the bank. Kasabot mo? Mao nay
gitawag ug garnishment. You place it in the
custody of the law. Pwede na nimo, upon the
commencement of the action or at any time
before entry of judgment. Combination ni siya
ug preliminary attachment ug execution.
What the sheriff usually do here guys, if the
defendant has money in different banks, is that
they notify the bank. “Please hold the money
of this defendant.. Because naa man tay
secrecy of the bank accounts, so the sheriff will
just notify the banks, and then the bank will
inform the sheriff or would reply by saying that
he has no account with the bank. Or otherwise,
it would say “Yes, he has an account. It has
only P1.00.” Unsaon pa man nimo na?
The concept of garnishment is explained
clearly by the Supreme Court in the case of
Perla Compania de Seguros vs. Ramolete
203 SCRA 487- according to the Supreme
Court, “Garnishment has been defined as a
specie of attachment for reaching any property
or credits pertaining or payable to a judgment
debtor. What is contemplated is forced
novation by the substitution of creditors. The
judgment debtor who is the usual creditor of
the garnishee is, through the service of writ of
garnishment substituted by the judgment
creditor who thereby becomes the creditor of
the garnishee”. Meaning, the bank or the
defendant who is actually the debtor in the
case where the plaintiff asked for the
garnishment of his account. Is that clear? “So
if you owe him, so by garnishment it is not
with you that I am indebted with. It is now the
bank that is indebted to you. Garnishment has
always been described as a warning to a
person having in his possession property or
credits of the judgment debtor, not to take the
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money or deliver the property but to answer to
the plaintiff’s suit. So, answerable diri ang
bangko not to dispose for defendant but to the
plaintiff who asked for the garnishment of the
account of the defendant who is the debtor in
the case. Is that clear? Any questions or
clarifications relating to that?
Asked in the bar exam, do you need to serve
summons then to the bank in a garnishment?
Third party man ang bank ani, but he is
substituted for the defendant who is the debtor
in an action, say for example in a collection for
a sum of money. Kinahanglan ba nimo I-serve
ang summons para ma acquire nimo ang
jurisdiction over the bank, because the bank
now is the debtor of the plaintiff? The Supreme
Court said in the Perla Compania case, “No.
It is not necessary that summons be served
upon him.” Unsa may kinahanglan? “The Rules
of Court does not require that the garnishee be
served with summons or impleaded in the case
to make him liable. The trial court acquired
jurisdiction over the garnishee when it was
served with the writ of garnishment which is
equivalent to summons.”
Perla Compania de Seguros vs Ramolete
F: Petitioner seeks to annul the court order
which ordered the Provincial Sheriff to garnish
the third-party liability insurance policy issued
by petitioner Perla Compania de Seguros, Inc.
("Perla") in favor of Nelia Enriquez, judgment
debtor in a separate civil case. It alleged that
the writ was void on the ground that it (Perla)
was not a party to the case and the trial court
had never acquired that jurisdiction over its
person by service of summons or by any
process. Petitioner also contends that in order
that it may be held liable under the third-party
liability insurance, a separate action should
have been commenced by private respondents
to establish petitioner's liability by virtue of
Rule 39 Sec. 45
I: WON summonses need to be served on Perla
for it to be bound by the writ of garnishment;
WON garnishee needs to initiate a separate
action
R: No. In order that the trial court may validly
acquire jurisdiction to bind the person of the
garnishee, it is not necessary that summons be
served upon him.
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1) The garnishee need not be impleaded as a
party to the case. All that is necessary for the
trial court lawfully to bind the person of the
garnishee or any person who has in his
possession credits belonging to the judgment
debtor is service upon him of the writ of
garnishment. The Rules of Court themselves do
not require that the garnishee be served with
summons or impleaded in the case in order to
make him liable. Through service of the writ of
garnishment, the garnishee becomes a "virtual
party" to, or a "forced intervenor" in, the case
and the trial court thereby acquires jurisdiction
to bind him to compliance with all orders and
processes of the trial court with a view to the
complete satisfaction of the judgment of the
court.
2) Every interest which the judgment debtor
may have in property may be subjected to
execution. In the instant case, the judgment
debtor Nelia Enriquez clearly had an interest in
the proceeds of the third-party liability
insurance contract.
3) The Court once held that a separate action
needs to be commenced when the garnishee
"claims an interest in the property adverse to
him (judgment debtor) or denies the debt." In
the instant case, petitioner Perla did not deny
before the trial court that it had indeed issued
a third-party liability insurance policy in favor
of the judgment debtor nor did it raise any
other substantive defense. Rule 39, Section 45
of the Rules of Court is not applicable in the
instant case, and we see no need to require as
separate action against Perla: a writ of
garnishment suffices to hold petitioner
answerable to the judgment creditor. If Perla
had any substantive defenses against the
creditor, it is properly deemed to have waived
them by laches.
I repeat, it is enough that you serve the bank
the writ of garnishment which would serve as
the notice. The garnishee becomes a virtual
party who is the forced debtor in the case and
the trial court thereby acquires jurisdiction to
bind him to comply with the court order or
processes in the trial court with the view to the
complete satisfaction of the judgment of the
court. Any questions or clarifications regarding
on the concept of garnishment? No summons
ha? Just the writ.
Now the next question is, how do distinguish a
normal preliminary attachment from
garnishment? As I have said,
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Garnishment is a variation of preliminary
attachment. What is the difference? Unsa may
subject sa attachment? Usually it is personal
property, in other words tangible property,
kanang makita nimo. Okay? A car for example,
a house. How about in garnishment? Intangible
properties like what, credits, shares of stocks..
Even collectibles, wa pa gani ma due, pwede
na nimo igarnish.
What are the parties involved? In a
preliminary attachment, what parties are
involved? Ang nangayo ug ang gi-addressan sa
attachment. So you have two parties- the
creditor and the debtor. The creditor is usually
the plaintiff. In a garnishment, who are
involved?
1. Creditor,
2. Debtor, ug ang
3. Garnishee
Example: plaintiff in a civil case for sum of
money against a debtor. Ang debtor nay
kwarta sa bangko, automatic ang bangko.
Plaintiff and creditor, defendant ang debtor and
then you have the bank as the garnishee.
In a preliminary attachment, there is seizure of
the property will be placed not in the hands of
the sheriff, but in custodial legis. Custodia
legis, sa ato pa, there is no actual seizure of
the property. Example, iattach nimo ang yuta,
unsaon man na pagdala sa sheriff? Ipaanod sa
dagat? In custodia legis gani, it is placed under
the control of the court. How does the court
takes control over the real property subject of
the attachment? Ipa-annotate sa titulo-
encumbrance. ‘kini siya na property, beware!
Mapalit man tuod ni but it carries the burden
that in the event the plaintiff will get a
favorable judgment, unahon gyud ni siya ug
baligya aron masatisfy ang judgment. Alright.
But what about in garnishment? In
garnishment in a preliminary attachment,
there is already a seizure. If you garnish an
account in the bank, the money will stay there
and nobody can withdraw from it. The sheriff
cannot get the money. It is the bank. Haya-
haya sa sheriff noh? Actually, ma frozen
delight imong kwarta. Dili mawithdraw, dili sad
makuha sa sheriff. Do you understand here?
Mao na siya’y ibayad sa utang. Any question or
clarification relating to the differences between
an attachment preliminary and garnishment?
(Judge goes on to give advice about
visualization.)
Question: Just to clarify regarding the shares
of stock, what will be desirable, attachment or
garnishment?
Answer: Garnishment, kay dili nimo Makita ang
shares of stock. Kita ka ug shares of stocks
galakaw lakaw? Intangible. There is in the
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SEC, book of accounts, anha nalista na kani na
shares of stocks na garnish or subject to
attachment.
What is then the nature of the attachment
proceedings? Atong klarohon. It is important,
aron ta makasabot! Now, it is in rem kay it
involves interest in a real property, or at least
quasi in rem, some would say. You know what
in rem is? Real action siya. Ang quasi in rem,
hybrid siya. Dili matawag purely personal, dili
pud matawag ug real action. It may have
started as a personal action like a collection of
a sum of money but because of the
involvement of a real property which is the
subject of attachment, you convert the
personal action into a real action. Mao na
gitawag ug quasi in rem.
Now even if the action is in personam, once
there is attachment, it is now converted into a
quasi in rem because a lien is acquired over a
specific property of the defendant. Is that
clear? (Judge goes on to tell about percentage
of MCQ in the bar exams).
You go over your notes.
GROUNDS FOR ISSUANCE OF A WRIT OF
PA
It states here that you can apply for a
preliminary attachment,
1. If it is an action for
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 the intent to defraud
his creditors;
Kalisod ana? It has to be an action for a
specified money or damages. Do you know
that under the old rules, as long as it is for the
recovery of money arising from a contract. Usa
ra ang basihan sa imong action for recovery of
money, you can apply for a preliminary
attachment. Karon, mas klaro: you have to
specify the amount- liquidated siya ug actual.
Nganong dili man nimo iapil ang exemplary ug
moral damages? Kung ang imong action is only
for damages to compensate you for your
sleepless nights and untold, unsay tawag nimo
ana- undescribable feelings of anxiety,
unhappiness and sadness- unsaon man nimo
na pag compensate? Unsaon man na nimo pag
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measure in terms of money? Mao na dili siya
pwede na if your action kay purely for
damages unya ang imong gipangayo ra kay
exemplary ra ug moral damages kay dili na
nimo ma measure. Kaniadto, ang basihan sa
imohang recovery of money is only the
contract. There are 5 sources of obligations,
diba- law, contract, quasi-contract, delict ug
quasi-delict. Pero kailangan ang amount
specified. Specific amount in the affidavit of
merit. When you apply for attachment. Diba,
sometimes kinahanglan na nimo iapil sa
complaint as allegations for application for a
writ of attachment, dili na iapil nimo mismo,
pero specific ang iyang paragraph. Ibutang na
didto only for such an amount of money
without specifying pila to siya. Way kantidad,
you cannot apply. Another thing, not only that.
There must be an allegation na ang imong
gikiha is about to depart from the country. Kay
kung nakalayas na, unsaon pa man na nimo
ang imohang pag satisfy sa judgment. It would
be useless. And the departure must be with
intent to defraud his creditors. Muabroad ra
diay to siya para magbakasyon, mubalik gyud
na siya. Bati kayo na imo na dayon i-attach
nimo iyang properties.
So, you take note that where the defendant is
about to run away with the intent to defraud
his creditors, you can apply for preliminary
attachment. The reason that there can be no
recover purely for exemplary and moral
damages because there can be no amount
cannot be determined. And a cause of action
arising from a law, contract, quasi-contract,
delict or quasi-delict against a party who is
about to depart from the Philippines with the
intent to defraud his creditors. The old rule
then is only limited to contracts. Any
questions, clarifications relating to that? You
have to have the mastery because next
meeting I’m gonna give you a practice – I’m
going to give you a practice if indeed the
plaintiff is entitled to the grant of preliminary
attachment.
2. In an action for money or
property embezzled or
fraudulently misapplied or
converted to his own 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
fiduciary capacity, or for a
willful violation of a duty;
6

So usually guys, in a main action for
malversation for public funds- -or for estafa
in a criminal case, can you apply for a
preliminary attachment?
Treasurer siya sa corporation. And you are
afraid that idagan ang kwarta. What will you
do? Then you apply for a preliminary
attachment. So the question there is: Can you
apply for a preliminary attachment against the
accused in a criminal case? Yes, Only if there is
no separate civil action filed against the
accused in a civil case as a defendant. You
can apply definitely for a preliminary
attachment.
What if you were not able to reserve, as I was
saying earlier, can you apply? Yes, under Rule
127, Section 2: “At the commencement of the
criminal action, when the civil action for the
recovery of civil liability arising from the
offense charged is not expressly waived, or the
right to institute such civil action separately is
not reserved, the offended party, the
complainant- may have the property of the
accused attached as security for the
satisfaction of any judgment that may be
recovered from the accused.
I have this case on estafa, I have alahas,
gipabaligya, then pagkahuman wala giremit
ang proceedsthey wanted the properties of the
accused attached in a criminal case ha? They
asked for an attachment. I was kind of hesitant
because of the elements required to establish
in order to grant the attachment. If I grant the
attachment, I will make a ruling on the fact
that there could have been fraud, and the
properties could’ve been embezzled, in which
case I have already made a judgment on the
elements of the offense. And what will the
accused do? They would ask for an inhibition
because you have already prejudged him or
her. Okay? I usually deny it. It would be better
to file a separate action because there wouldn’t
be liberty at stake there. As I have said, you
will not be barred if you have not filed a civil
action, or otherwise has not reserved to file a
separate civil action, then you may ask for a
writ of preliminary attachment. Any questions
or clarifications?
3. In an action to recover
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
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being found or taken by
applicant or an authorized
person;
Previous to this, it speaks only of personal
property. Now, the word ‘personal’ property is
removed. We’re talking about a property being
concealed from the applicant. Property may
even also refer now to real or personal,
unjustly or fraudulently being taken to prevent
it from being found by an applicant or an
authorized person. Thus it is inserted now
because by the authorized person, it may be
the sheriff or an attorney-in-fact. So again I
repeat, in paragraph c what has been changed
here is the definition of the property. Okay?
So, the property now includes all real and all
personal because before it only includes
personal property. And the authorized person
who is applying or may be taking it or
recovering it is not just the applicant. It could
be in behalf of the applicant by an authorized
officer who may be either the sheriff or the
attorney-in-fact of the applicant.
Okay, let’s go now to the fourth ground of
applying for a writ of preliminary attachment:
4. In an action against a party
who has been guilty of
fraud;
Take note this is a usual ground being used by
the plaintiffs when there is fraud. When is
there fraud committed by the defendant?
a. Either in
contracting the
debt- gikan pa sa
pagpangutang,
or incurring the
obligation upon
which the action
is brought, or in
the performance
thereof. So
pagsugod pa,
there was
already fraud.
Let me give you an example. Nangutang ang
defendant sa plaintiff. As an assurance of
payment, ni issue siya ug post-dated checks.
Ni bounce ang post-dated checks, now you
want to have the checks made good. Question,
kung ikaw plaintiff, was there fraud in
contracting the debt? Obviously, there was no
intent of fraud. Probably the defense of the
circumstances it would be that pagsugod pa
lang ug pangutang, issuing a check- it would
7
not necessarily be a bouncing check kay post-
dated checks man ni siya, there was intent to
pay, only that naabtan that when the check is
due na bankrupt. So, it depends. You have to
allege that. Usually they would say na
pagsugod pa lang daan ug pangutang, his
account in the bank is already closed, so there
was intent to defraud the creditor kay nganong
mu issue man ka ug checke when you don’t
have anymore sufficient deposit in the bank?
Are you following what we are saying here?
Because the non-payment of the utang, of the
obligation is not a ground for attachment
because there cannot be fraud. Do you follow
here?
b. Or in the course
of the
performance of
an obligation.
What does it mean? At the beginning when it
was contracted, there was no fraud- here was
no intent to defraud the creditor. What if there
is no payment made after the obligation was
contracted? Can you then apply the statement
“or in the performance of the obligation” there
was intent to defraud? And thus now you are
asking for a writ of preliminary attachment.
Very specific ang iyang elements. Here guys,
you have to take note of the meaning of ‘in the
performance thereof.’ It means that the person
was in good faith when he borrowed the
money, but in the performance of the
obligation he contracted fraud. He is not
paying anymore. Is that clear? Any questions
or clarifications relating to that? Do you follow
here? Any problem? Yes, go ahead.
Question: Does it require prior notice and
hearing?
Answer: No. It is the discretion of the court to
determine that depending on the
circumstances as alleged in the complaint or at
the commencement of the action when you
apply for a preliminary attachment. Mao bitaw
na ang korte in case of doubt, they don’t issue
the writ because it’s a very harsh remedy
against a defendant. So you have to clearly
specify otherwise, as I have said earlier, in
case of doubt we do not issue a writ of
preliminary attachment. Kung muingon ka ug
guilty, as I have said that does not mean
criminal case or that you are guilty of fraud.
That can be ascertained or determined from
the allegations of the complaint or if not, in the
affidavit of merits supporting the application
for a writ of preliminary attachment. So
basically, discretionary upon the court. Alright!
In paragraph e:
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5. 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.
Okay! Intent to defraud his creditors. Imong
ibaligya ang imong mga properties. Ngano
man? In order to defraud your creditors, imong
ibaligya sa imong mga anak. Do you
understand what I’m saying here? There is
intent to defraud your creditors because the
moment the title is transferred that cannot be
anymore attacked because it is not anymore
your property.
I have one case. At the beginning, I issued a
writ of preliminary attachment and then they
asked for reconsideration because according
to the defendant the reason why the property
was transferred in his son’s name is because
partly it has something to do with the litigation
of non-holdings, land reform, agrarian. Diba
ipa limit ang imong properties? Pila ka
hectares? 3-5 hecatres. Unya nanubra naman,
iyang gitransfer sa iyang anak. That was used
as basis for defrauding kuno his creditors by
transferring his properties in the name of his
son. As explained, it cannot be presumed then
that he had the intention to defraud. You can
always run after the property even if it is
already in the name of the son. Obviously,
there was no intention really to sell his
property to the son, it was simply in order to
avoid the property being taken by the
government. Do you follow here?
Now, what about a case of a simple mortgage?
Gi prenda ang imong property. Is that a form
of disposition of a property that you can ask
for a preliminary attachment? Muingon ka, ‘Gi
prenda man ang mga properties ana niya.’ Do
you understand here? ‘So I need now a writ of
preliminary attachment to make sure that he
would not dispose of his property.’ Is that a
basis? Mortgage- no. Mortgage is not a final
disposition. The debtor is still the owner of the
property, only subject to that encumbrance.
In which case, for that reason alone you
cannot apply for a writ of preliminary
attachment because there is no showing that
the intention was to defraud. He just needs the
money, and that’s the reason why he had it
mortgaged. Do you have any questions so far
or clarifications relating to that? Do we
understand each other here, guys?
Alright, let’s go to the last ground:
6. In an action against a party
who does not reside and is
8
 not found in the Philippines,
or on whom summons may
be served through
publication.
So that means that the defendant cannot be
found in the country anymore because in the
first place he does not reside in the Philippines.
Alright! Or otherwise if he has been a resident
in the Philippines, he may have already gone
abroad, therefore you cannot serve summons
on him personally anymore. The least that you
can do is to serve the summons or to effect the
summons upon him through publication. But
before you can do that especially for personal
action, you have to hold his property under the
control of the court. And the way to do that is
by applying for a writ of preliminary
attachment. Again, you take note of this in the
MCQ or in the bar exam.
Guys, what are the distinctions of in rem or a
quasi in rem in the action where the defendant
is not found in the country- are you following
what I’m saying? For as long as you can apply
and you have been granted an attachment,
you attach the real property. There is already
notice to the defendant, and of course the
court acquires jurisdiction over the action, not
over the person of the defendant because he is
no longer a resident of the country.
Nonetheless, the court would require
publication. Ang publication is only for the
purpose of complying the requirements of due
process. Due process is not an actual notice to
the person; it is an opportunity for that person
to be heard. So, who knows? He may have
friends in the Philippines and who may tell him
‘Hey, you have been already sued in a civil
case.’ So you have the chance to answer within
60 days from the last publication in which to
file a responsive pleading.
Alright, okay. If you do not have any
questions, let’s go now to Section 2- In the
issuance of the contents of the order. What
should be the content of the order and what
court can then issue a writ of preliminary
attachment? If you were the (lawyer of the)
plaintiff, what will you do if you want to protect
the interest of your client? You can apply for a
writ of preliminary attachment assuming that it
would fall any of the grounds enumerated in
Section 1. How do you that? There’s a
complaint okay, and then attached to the
complaint are your documents that would
support your complaint, and then the affidavit
of merits .The affidavit of merits is executed by
the applicant, usually the plaintiff. Kung
company na siya, usually the one who is
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authorized by board of directors as certified to
by the secretary of the corporation.
CONTENTS OF THE AFFIDAVIT OF MERIT
What should be the contents in the affidavit of
merit?
1. Those grounds that we
enumerated in Section 1;
Like if you are claiming for an amount, you
have to state there the specific amount
2. And the circumstances why
you need a preliminary attachment
to be issued by the court;
3. And that you’re willing of
course to put up a bond.
Why is this under oath? Ngano siya in an
affidavit of merit or in a verified complaint you
have to have it in a separate paragraph there?
Why? Because in case you are not telling the
truth, the bond that you have posted will
answer for the damages suffered by the
defendant because of wrongful attachment.
REQUIREMENT OF A HEARING
Once it is received by the court, what will the
court do? Should the court hold a hearing? Or
can the court issue the writ even without a
hearing? The answer is yes, if it is filed at the
commencement of the action. It can be an ex
parte issuance- Ex parte issuance of the writ of
preliminary attachment. The only basis of the
court to grant the application for the writ of
preliminary attachment is just the allegations
of the complaint, the supporting documents
and the affidavit of merit. Mao na ang basihan-
Wala nay hearing.
Why is there no hearing? Because if you inform
the defendant, the defendant might dispose of
his property. That’s the reason, so as not to
caution him of the pending attachment. But
there is a condition on here, guys. While it
may be issued by the court ex parte, the
service of the writ itself must only be after the
court acquired jurisdiction over the person of
the defendant. How do you do that? When you
serve the summons upon him it has to be
simultaneous with the service of the writ of
preliminary attachment. Not the other way
around. If dili na siya simultaneous, the service
of the writ is void. The application itself is void.
In the first place the court has not acquired
jurisdiction over the action or over the person
of the defendant. We’re talking about a
defendant who is found in the Philippines, not
one who is not a resident in the Philippines.
Because it’s only when it is attached that the
court acquires jurisdiction over the action kung
9
ang defendant is not a resident in the
Philippines. Do you understand that? Is that
clear? See the difference here, guys?
It could be an
1. ex parte, or
2. It could be upon a motion with
notice and hearing.
Kadto akong giingon ganiha, that is upon the
commencement of the action. Buhaton usually
if kamo, if you were the lawyer of the plaintiff,
sundon dayon nimo ang sheriff, do you
understand, or where the case is raffled to and
then they would asked the branch clerk of
court to let the judge know that you are
applying for a writ of preliminary attachment,
and so that the court can read the expediente-
the records of the case. If the court is satisfied,
then it issues and it is served simultaneously
with the summons. But in some cases, the
court may not be satisfied with the allegations.
But if the plaintiff is insistent, then the court
would have to conduct a hearing, especially
when the defendant already knew of the
complaint filed against him. You have to
notify the defendant then. Because, sometimes
when you apply for a writ of preliminary
attachment after the service of the summons
already. In this case, the defendant already
knew that there was a complaint filed against
him. You have no other choice but to conduct a
hearing to afford due process. Is that clear?
Any problem, questions or clarifications
relating to that? Is that clear to you, guys?
WHICH COURT TO FILE AN APPLICATION
FOR A WIRT OF PA
So the next question then is: where do you
apply for the writ of preliminary attachment?
Bisan asa na korte?
1. You file it with the RTC where
you filed the case or where the
action is pending;
Where else?
2. The Court of Appeals, and
3. The Supreme Court.
Okay. Just some of the cases that you need to
take note on the matter of imposition with the
grounds.
Are the grounds for attachment strictly
construed, the lack of which is a ground for
denial? As I have said before, the grounds are
strictly construed against the applicant. The
Supreme Court said that they are to be strictly
construed. The grounds enumerated are
exclusive- ayaw pagbuhat ug imoha. In other
words, what is not enumerated is not included.
So in case of doubt, the doubt is resolved in
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favor of the attached debtor. To borrow the
language of the court in the case of Sievert v.
Ca December 22, 1988- It says “The
requirements of the rule in the issuance of
preliminary attachment must be strictly and
faithfully complied with in view of the nature of
this provisional remedy which exposes the
debtor to humiliation and annoyance.” In
Aboitiz v. Cotabato Bus Lines, June 17,
1981- Here the defendant- take note of this,
Bus Lines, was on the verge of bankruptcy.
The creditor, Aboitiz was afraid that since the
bus company has many debts, they filed a case
for preliminary attachment. The ground of the
defendant is Insolvency- in the verge of
insolvency.
Sievert vs CA
F: Alberto Sievert received by mail a Petition
for Issuance of a Preliminary Attachment filed
with the Regional Trial Court of Manila. He had
not previously received any summons and any
copy of a complaint against him in the Civil
Case.On the day set for hearing of the Petition
for a Preliminary Writ of Attachment,
petitioner's counsel went before the trial court
and entered a special appearance for the
limited purpose of objecting to the jurisdiction
of the court. He simultaneously filed a written
objection to the jurisdiction of the trial court to
hear or act upon the Petition for Issuance of a
Preliminary Writ of Attachment. In this written
objection, petitioner prayed for denial of that
Petition for lack of jurisdiction over the person
of the petitioner (defendant therein) upon the
ground that since no summons had been
served upon him in the main case, no
jurisdiction over the person of the petitioner
had been acquired by the trial cour
I: WON a court which has not acquired
jurisdiction over the person of the defendant in
the main case, may bind such defendant or his
property by issuing a writ of preliminary
attachment.
R: NO. Attachment is an ancillary remedy. It is
not sought for its own sake but rather to
enable the attaching party to realize upon
relief sought and expected to be granted in the
main or principal action. A court which has not
acquired jurisdiction over the person of
defendant, cannot bind that defendant whether
in the main case or in any ancillary proceeding
such as attachment proceedings. The service
of a petition for preliminary attachment
without the prior or simultaneous service of
10
summons and a copy of the complaint in the
main case — and that is what happened in this
case — does not of course confer jurisdiction
upon the issuing court over the person of the
defendant.
The want of jurisdiction of the trial court to
proceed in the main case against the
defendant is quite clear. It is not disputed that
neither service of summons with a copy of the
complaint nor voluntary appearance of
petitioner Sievert was had in this case.
Aboitiz & Co etal vs Cotabato Bus
Company
F: A writ of preliminary attachment was issued
in a civil case by the Court of First Instance of
Davao on the strength of an affidavit of merit
attached to the verified complaint for the
collection of a sum of money filed by petitioner
Aboitiz & Co., Inc. alleging that respondent bus
company "has removed or disposed of its
properties or assets, or is about to do so, with
intent to defraud its creditors." insists that its
evidence is intended to prove his assertion that
respondent company has disposed, or is about
to dispose, of its properties, in fraud of its
creditors. Aside from the reference petitioner
had made to respondent company's "nil" bank
account, as if to show removal of company's
funds, petitioner also cited the alleged non-
payment of its other creditors, including
secured creditors like the DBP to which all its
buses have been mortgaged, despite its daily
income averaging P12,000.00, and the rescue
and removal of five attached buses.
I: WON insolvency by company's bank account
which has been reduced to nil, may be a
ground for the issuance of a writ of attachment
R: NO. Citing Max Chamorro & Co. vs.
Philippine Ready Mix Concrete Company, Inc.
and Hon. Manuel P. Barcelona, the court ruled
that insolvency is not a ground for the issuance
of the writ of attachment.
The dwindling of respondent's bank account
despite its daily income of from P10,000.00 to
P14,000.00 is easily explained by its having to
meet heavy operating expenses, which include
salaries and wages of employees and workers.
If, indeed the income of the company were
sufficiently profitable, it should not allow its
buses to fall into disuse by lack of repairs. It
should also maintain a good credit standing
with its suppliers of equipment and other
needs of the company to keep its business a
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going concern. Petitioner is only one of the
suppliers.
If you were the court, should you grant the
application for a writ of preliminary
attachment? Should you grant? Ang
insolvency, is it a ground for preliminary
attachment? The non-payment as a general
rule, is it a ground for preliminary attachment?
Because in fact, it is possible that the debtor
will not pay his creditor. Take note of this case,
ha? It says, ‘It is not a ground for preliminary
attachment. You can’t find it in the rules. So
the attachment was illegal. Even so if he is on
the verge of bankruptcy but he is not running
away from the creditor, you cannot attach.’
Do you follow here? Any problems or
clarifications relating to that?
REQUIREMENTS IN APPLYING FOR A
WRIT OF PA
Okay, what do you need if were now to apply
for attachment? What are the requirements
under the law? Section 2 and 3, you have
what? You have:
1. The affidavit, and
2. The requisite bond.
Is there a requirement of hearing? There is
none that is, if it is ex parte. It is now for the
court to determine therefore whether to issue
the writ or not yet, but it can issue ex parte.
Why is it that a writ of preliminary attachment
may be done ex parte? Because of the
urgency, diba? Especially when the defendant
is departing from the country or is disposing
now of his assets. If you were to hear the
defendant, then he may have left or otherwise
disposed of his properties already. Do you
follow here? Any questions or clarifications
relating to that?
Okay. Regarding on the requirements: So you
need an affidavit- an affidavit of merit, and
then a sworn or a verified application. There
must be an attachment (maybe she means
bond) to answer for the damages that the
defendant may suffer.
How much will be the bond? It is usually the
discretion of the court. Usually it is the amount
that is being asked for. So pananglitan
nangayo ang plaintiff kay ang utang 2 million,
then the court would usually grant the same
11
amount. But that is up to the court. You have
to put up a bond before the writ is served of
course, otherwise the writ is void.
ALLEGATIONS IN THE AFFIDAVIT
What do you allege in your affidavit, guys?
Take note of this:
1. That you have sufficient cause
of action;
Utangan nimo and defendant. And you have to
write what could be the basis of the utang. It
could be law, contract, quasi-contract, it could
be delict or quasi-delict. Your have 5 bases of
cause of action. Okay.
2. And that the grounds as
enumerated by Section 1;
There are 6 grounds, any of those 6 grounds.
Alright?
3. That there is no sufficient
security for the claim sought to
be enforced.
You have to state that. It is an important
allegation that you have to state. Therefore, if
an account is secured by a mortgage, you
cannot attach because you already have
security.
Alright! Utang! Do you understand what I’m
saying here? And then there is also a real
estate mortgage. Kung ang utang is covered
already by a real estate mortgage, you cannot
attach unless non-existent diay ang yuta.
There was fraud in the first place in contracting
the obligation, and you have to state that there
in the application for a preliminary attachment.
Nakasabot mo? Okay, I repeat: Ingon nako
imong iallege in your complaint na there is no
sufficient security for the claim. So mortgage is
already a security. Is that clear?
INSTANCES WHEN A CREDITOR
PLAINTIFF CAN APPLY FOR A WRIT OF PA
Asked in the bar exam, what are the instances
when a creditor plaintiff can still apply the writ
of preliminary attachment despite the fact that
there is a mortgage to secure the debt? Under
what circumstances?
1. When the mortgage
creditor-the plaintiff
abandons the mortgage and
brings an ordinary action to
collect the principal loan, or
he simply applies for the
collection of sum of money;
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So wala niya gi foreclose ang real estate
mortgage, instead he filed an action for simple
collection of sum of money. So he prefers the
cash rather than on the mortgage where
daghan kang ka share. He is now an unsecured
debtor and there is now a ground for
attachment. The creditor can now apply for
attachment and he is not limited to attaching
only the mortgaged property- any property. So
that is all he has to do.
Kung ikaw tanaw nimo ang kani siya na
mortgaged property na gihimong collateral is
not sufficient to pay for the interest kay dako
naman- at the time when you contracted the
loan, ang gi secure sa mortgage was only one
million. And then the utang became bigger
unya ang value sa mortgaged property is only
one million. It would be wiser, instead to file
an action for collection of sum of money where
you can even attach also the mortgaged
property plus other properties to answer for
the utang that has already reached to 2
million. Is that clear? You take note of that
when you go into practice.
2. Even if the creditor will not
abandon the mortgage, if
he will foreclose the
mortgage and in the action
for foreclosure, there is a
showing that the possible
proceeds of the mortgaged
property are not sufficient
to pay the entire debt and
in the meantime the debtor
is also trying to dispose of
his assets.
So in other words- ikaw, nangutang nimo si
kuan, gi foreclose nimo and there is deficiency
judgment kay kuwang ang proceeds, then in
the meantime, if you know that the defendant
is slowly disposing of his properties then you
can already apply for preliminary attachment
on other properties of defendant to satisfy your
cause of action against the defendant. Alright.
Any questions or clarifications regarding on
that?
3. That the amount due to the
applicant, or the value of
the property is as much as
the sum for which the order
is granted.
12
Do we understand each other here? So in only
those two circumstances, even if it is secured
by a mortgage as an exception, he may still
apply for a writ of preliminary attachment.
Again, I repeat: when an obligation is secured
by a mortgage, as a general rule you cannot
apply anymore for a writ of preliminary
attachment. The exceptions are: when the
mortgage creditor abandons the mortgage,
second is when even if he does abandon the
foreclosed property is not sufficient to satisfy
the obligation of the defendant. In this case,
he can apply for a writ of preliminary
attachment. Do you have any questions or
clarifications relating to that?
Let me ask class, among the grounds
enumerated in section 1, ang paghutana
sunod, is an affidavit a strict requirement?
Affidavit! Yes! Supreme Court said in the case
of Jardine v. CA 171 SCRA 639, “that the
authority to issue an attachment must be
strictly construed. Failure to allege in the
affidavit the requisites required in the issuance
of the writ of attachment renders the writ
totally defective.” The affidavit is the
foundation of the writ and if none be filed, or if
filed but fails to set out some facts required by
law to be stated therein, there is no jurisdiction
and the proceedings are null and void.
There is an example of this guys, the case of
Ting v. Villarin August 17, 1989. These are
the facts of the case: There was a writ of
attachment. The allegation of the plaintiff says,
‘the defendants are guilty of fraud in
contracting the obligation, more specifically
illustrated by their violation of the Trust
Receipt Agreement.’ Would that be sufficient in
order to grant the writ of preliminary
attachment? That’s the only allegation stated
in the affidavit. Supreme Court said, ‘there is
no ground for attachment because to say that
there is fraud is not enough. You must recite
how the fraud was committed. It cannot be
issued on general averments such as one
ceremoniously quoting a pertinent rule. The
need for a recitation of factual circumstances
to support the application becomes more
compelling considering that the ground relied
upon is fraud. Fraud cannot be presumed. In
civil procedures, fraud must be made with
particularity.’
Spouses Ting vs Villarin
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F: Consolidated Bank sued Sps. Ting for (1)
the collection of the proceeds of 2 promissory
notes, and for (2) the violation of the trust
receipt agreements, which were guaranteed by
Lin Suy Lin, Angelo Leonar, and Lu Cheng
Peng. It applied for a writ of PA against Perlon
Textile Mills where Roberto Ting is a director,
alleging in its affidavit:
“16. Defendants are guilty of fraud in
contracting their obligations more specifically
illustrated by their violation of the trust receipt
agreement which is a ground defined under
Sec. 1, Rule 57 of the Rules of Court for the
issuance of a writ of preliminary attachment.”
It impleaded wife Dolores Ting to bind the
conjugal partnership of gains which allegedly
benefitted from the transactions subject of the
complaint
I: WON PA should issue
R: NO. The complaint did not provide for a
sufficient basis for the issuance of a writ of
preliminary attachment.
1) It is not enough for the complaint to
ritualistically cite, as here, that the defendants
are "guilty of fraud in contracting an
obligation." An order of attachment cannot be
issued on a general averment, such as one
ceremoniously quoting from a pertinent rule.
The need for a recitation of factual
circumstances that support the application
becomes more compelling here considering
that the ground relied upon is "fraud in
contracting an obligation." The complaint
utterly failed to even give a hint about what
constituted the fraud and how it was
perpetrated. Fraud cannot be presumed. The
application for preliminary attachment rests on
"fraud in contracting" the trust receipt
agreements. The complaint itself save for the
unwarranted sweeping reference to
"defendants," alleged that only Consolidated
Bank, as principals, and Liu Suy Lin, Angelo
Leonar, and Lu Cheng Peng, as guarantors,
were privy to the trust receipt agreements
under the second cause of action. Petitioner
Roberto Ting's involvement is limited only to
the promissory notes under the first cause of
action
2) The attached property of the spouses Ting
are conjugal, the same cannot be validly
13
brought under the painful process of
attachment because:
(a) First, the wife Dolores was
impleaded merely because of the fact
that she is the spouse of Roberto;
(b) Second, the conjugal
partnership cannot possibly be
benefitted when the husband binds
himself, as guarantor, because this act
does not conserve or augment conjugal
hinds but instead threatens to dissipate
them by unnecessary and unwarranted
risks to the partnership's financial
stability. When the husband assumes
the obligation of a guarantor, the
presumption that he acts, as
administrator, for the benefit of the
conjugal partnership, is lost.
-------------
…Fraud in contracting the obligations.
So it could be that you were issued with a
check as payment and one check with a
promise that it will be good and that there are
sufficient funds and then it was dishonored for
reasons that the funds are insufficient or the
account of the defendant was closed. Then that
is a specific description of fraud. You state that
in your affidavit that may be attached to your
complaint.
Now let me ask you this question: What if
there is no affidavit of merit? Are you entitled
to the issuance of a writ of PA? No.
Now on the affidavit of merit. These are the
things that first and foremost that the court
will have to look into in an affidavit for
attachment. Otherwise, what if they have a
separate allegation for application for a writ of
preliminary attachment consolidated in the
complaint. Would that be sufficient? If it is in
the complaint however in a separate paragraph
consolidated in the complaint. It would still be
under oath, in fact, because it is verified, then
it would be sufficient. You know that guys
because there is a separate application there
on allegations for application for a writ of
preliminary attachment. Then you have to go
over with the allegations in the complaint
regarding on that matter on the specific acts
that may also show the grounds for a writ of
PA..
TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
Prior to the service of the writ, what must be
complied with? There has to be the filing of a
SUFFICIENT BOND. How much amount is the
bond? At the discretion of the court but
usually, equal to the amount damages claimed
by the plaintiff.
Then you serve it. How do you serve it?
Simultaneous with the SUMMONS.
Is it possible that if the issuance is regular but
the service is invalid? When the summons is
invalidly served. When is it invalidly served?
Under what circumstances? If it’s a corporation
for example that is the defendant in a case,
who must it be served to? Only officers as
required by law of the office of the corporation.
For example it only served to the security
guards of the office of the corporation. Still
there invalid service of the writ. The writ is
invalidly enforced because the court has not
acquired jurisdiction yet over the defendant
due to invalid service of the summons. The law
specifically provides who can be validly served
with summons if the defendant is a
corporation.
Another point you should take note, if the
summons cannot be served personally, or by
substituted service of summons of the
defendant, how do you serve the writ? If the
defendant is not anymore residing in the
Philippines, otherwise if he is residing in the
Philippines, his whereabouts are not anymore
unknown. You first attach the property. How
do you attach the property? Place it in the
custody of the court. When will be the
publication of the summons? This is not for the
purpose of acquiring jurisdiction but rather for
the purpose of complying with due process.
You can now serve the summons and publish
the summons after the person has attached
the property of the defendant.
This applies when:
1. Not a resident of the Philippines.
2. A resident but temporarily out of
Philippines
3. And his whereabouts are unknown.
We are now on section 6
Before we go to Section 6 we have o reconcile
the doctrines in 2 cases: The Davao Light
Doctrine and the Magdalena Estate.
How do you reconcile this, where in this
section, summons must come first before
publication. In the case of Magdalena Estate
14
the defendant is not a resident of the
Philippines, attachment first before summons
by publication, which is confirmed by section 1
[f] of Rule 57, one of the grounds for
attachment. I cannot serve summons by
publication without attaching first. That is
paragraph [f] of section 1, which is the exact
opposite of the Davao Light Ruling, where the
defendant was a resident of the Philippines.
(a) Real property, or growing crops thereon,
The Davao Light is when the defendant is in
the Philippines then you serve your summons.
With respect to Magdalena, the defendant is
not a resident of the Philippines then you apply
the exception to the purpose of service of
summons.
The GENERAL RULE is Service of Summons
first before Attachment (Davao Light case)
Exception: Section 5, last paragraph. There
must first be an attachment before service of
summons.
Okay let’s go to Section 6
Sec. 6 Sheriff's return.- After enforcing the
writ, the sheriff must likewise without delay
make a return thereon to the court from
which the writ is sued, with a full statement
of his proceedings under the writ and a
complete inventory of the property attached,
together with any counter-bond given by the
party against whom attachment is issued,
and serve copies thereof on the applicant.
(6a)
When does a sheriff make a return?
Immediately after the execution of the writ. He
should not delay the return service or report to
the court including the counter-bond that may
have been posted by the defendant. For the
purpose of releasing the attachment made.
Sec. 7. Attachment of real and personal
property; recording thereof.- Real and
personal property shall be attached by
the sheriff executing the writ in the
following manner:
This is now the manner of attaching the
property of the defendant. So you have:
1. Real property
2. Personal property capable of manual
delivery
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3. Stocks or shares, or an interest in
stock or shares
4. financial interest, royalties,
commissions
5. the interest of the party against whom
attachment is issued.
So you have 5.
or any interest therein, standing upon the
record of the registry of deeds of the
province in the name of the party against
whom attachment is issued, or not
appearing at all upon such records, or
belonging to the party against whom the
attachment is issued and held by any
other person, or standing in the records of
the registry of deeds in the name of any
other person, by filing with the registry of
deeds a copy of the order, together with a
description of the property attached, and
a notice that it is attached, or that such
real property and any interest therein
held by or standing in the name of such
other person are attached, and by leaving
a copy of such order, description, and
notice with the occupant of the property,
if any, or with such other person or his
agent if found within the province.
Where the property has been brought
under the operation of either the Land
Registration Act or the Property
Registration Decree, the notice shall
contain a reference to the number of the
certificate of title, the volume and page in
the registration book where the certificate
is registered, and the registered owner
or owners thereof.
The registrar of deeds must index
attachments filed under this section in the
names of the applicant, the adverse
party, or the person by whom the
property is held or in whose name it
stands in the record. If the attachment is
not claimed on the entire area of the land
covered by the certificate of title, a
description sufficiently accurate for the
identification of the land or interest to be
affected shall be included in the
registration of such attachment;
So let us first go to real property. How do you
attach real property if you were the sheriff?
What would you tell the sheriff? You have to
make the ANNOTATIONS ON THE TITLE of the
property. So if it is a title, you go to the
15
Registry of Deeds, if it is a tax declaration, you
go to the Assessor’s office and have the
attachment annotated in these documents
covering the property subject to the
attachment.
(b) Personal property capable of
manual delivery, by taking and
safely keeping it in his custody,
after issuing the corresponding
receipt therefor;
If it was personal property, like a car or a ref,
physical possession plus manual delivery of
this property if it is movable. To whom? To the
sheriff. But the sheriff has no place to put it.
You will have to put it in a BONDED
WAREHOUSE. So that in the event the
judgment is in favor of the plaintiff, and the
judgment becomes final, then the property will
be sold on PUBLIC AUCTION and the proceeds
of which will be applied to the satisfaction of
the judgment.
(c) Stocks or shares, or an interest in
stock or shares, of any corporation
or company, by leaving with the
president or managing agent
thereof, a copy of the writ, and a
notice stating that the stock or
interest of the party against whom
the attachment is issued is
attached in pursuance of such writ;
So what if it is shares of stock? You
serve the writ to whom? What is the
proof of the shares of stock in a
corporation? Do you need to annotate
it in the corporation’s stocks and
transfer book? The answer is NO, you
do not need to annotate it. It is not
necessary. Both the Rules of Court and
the Corporation Code does not require
annotation in the corporation’s stock
and transfer book for the attachment
of shares of stock to be valid and
binding on the corporation and third
parties because even if attached, the
attached stocks here still belongs to
the debtor. There cannot be any
transfer by virtue of the attachment.
So there is no point in making an
annotation in the finance and transfer
books of the corporation.
(d) Debts and credits, including bank
deposits, financial interest,
royalties, commissions and other
personal property not capable of
manual delivery, by leaving with
the person owing such debts, or
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having in his possession or under
his control, such credits or other
personal property, or with his
agent, a copy of the writ, and
notice that the debts owing by him
to the party against whom
attachment is issued, and the
credits and other personal
property in his possession, or
under his control, belonging to
said party, are attached in
pursuance of such writ;
The most important thing in
GARNISHMENT of funds which belong to a
third party, like a bank for example.
Can you garnish the funds of the
government? You CAN’T. why? Because of
the immunity of the state from suit. What
if, for example, you post a salary check of
a government employee, can you garnish
the salary. Unless it is encashed, it is still
the property of the government. Therefore
you cannot garnish them. Do you
understand?
DE LA VICTORIA vs. BURGOS
245 SCRA 374 (1995)
Q: Can you garnish the funds of the
government?
A: No, it is prohibited.
FACTS: In this case, what was garnished
was the salary check of an assistant
prosecutor. Maybe he does not want to
pay his debt. Since his salary is taken
from the DOJ, they have checks which will
be given to the prosecutor to distribute.
In this case, the check was in the hands of
the City Prosecutor. It was garnished. “Do
not give it to the assistant prosecutor
because he has a debt”.
ISSUE: Was there a valid attachment?
HELD: No. In as much as the said check
was not yet delivered to the payee
(prosecutor), it did not belong to him and
it still had the character of public funds.
And as a necessary consequence, the
check cannot be garnished.
The rationale behind this doctrine is the
obvious consideration of public policy.
Public funds cannot be garnished. It is
only after the check has been given to the
payee that you can garnish it.
16

Even if the debtor delivered it to the payee, it
has not yet been encashed. They are still part
of the public funds, therefore, they cannot be
attached.
Q: Can I attach your share in the estate of the
deceased although no specific property yet?
A: Yes. Under Section 7(e).You just serve the
executor or administrator a copy of the writ
and notice .The same shall also be filed in the
office of the Clerk of Court where the estate is
being settled.
(e) The interest of the party against
whom attachment is issued in
property belonging to the estate of
the decedent, whether as heir, legatee,
or devisee, by serving the executor or
administrator or other personal
representative of the decedent with a
copy of the writ and notice that said
interest is attached. A copy of said
writ of attachment and of said notice
shall also be filed in the office of the
clerk of the court in which said estate
is being settled and served upon the
heir, legatee or devisee concerned.
If the property sought to be
attached is in custodia legis, a copy
of the writ of attachment shall be filed
with the proper court or quasi-
judicial agency, and notice of the
attachment served upon the custodian
of such property. (7a)
So the property that is attached, may be
attached again. It can be attached again but
here you have to inform the court which
already attached it.
Q: What is the amendment under the new
Rules?
A: "xxx filed with the proper court or quasi-
judicial agency xxx". Thus, it may be
attached not only by the court but also
by NLRC, etc. You can attach it but you must
inform them of the attachment of the property
already attached.
Sec. 8. Effect of attachment of debts,
credits and all other similar personal
property.- All persons having in their
possession or under their control any
credits or other similar personal property
belonging to the party against whom
attachment is issued, or owing any debts
TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
to him, at the time of service upon them
of the copy of the writ of attachment and
notice as provided in the last preceding
section, shall be liable to the applicant
for the amount of such credits, debts or
other similar personal property, until the
attachment is discharged, or any
judgment recovered by him is satisfied,
unless such personal property is
delivered or transferred, or such debts
are paid, to the clerk, sheriff, or other
proper officer of the court issuing the
attachment. (8a)
What is important in Sec. 8? Who
would be liable to the creditor? No
longer the debtor but the garnishee,
who is in possession of the credit. So
you will be liable to the applicant for
such credits until the attachment is
discharged or judgment recovered by
him is satisfied.
Sec. 9. Effect of attachment of interest
in property belonging to the estate of a
decedent.- The attachment of the
interest of an heir, legatee, or devisee in
the property belonging to the estate of a
decedent shall not impair the powers of
the executor, administrator, or other
personal representative of the decedent
over such property for the purpose of
administration. Such personal
representative, however, shall report the
attachment to the court when any
petition for distribution is filed, and in the
order made upon such petition,
distribution may be awarded to such heir,
legatee, or devotee, but the property
attached shall be ordered delivered to
the sheriff making the levy, subject to the
claim of such heir, legatee, or devisee, or
any person claiming under him.
It will be the personal representative if
the property is under the control of the
administrator. But he has to make a
report to the court that the property
that he is administering has been
attached. And then once these
properties are attached by the sheriff,
does the defendant have the right to
check all those properties that were
taken in custody by the sheriff? The
answer is YES. In fact, the sheriff or
anyone who is in custody of the
property may be ordered by the court
to appear for further the questioning.
Sec. 11. When attached property may be
17
 sold after levy on attachment and
before entry of judgment.- Whenever it
shall be made to appear to the court in
which the action is pending, upon
hearing with notice to both parties, that
the property attached is perishable, or
that the interests of all the parties to the
action will be subserved by the sale
thereof, the court may order such
property to be sold at public auction in
such manner as it may direct, and the
proceeds of such sale to be deposited in
court to abide the judgment in the action.
(11a)
Can you have it disposed while the
case is still pending? What are the 2
circumstances?
1. Perishable
2. Interest of the parties to the
action will be subserved by the
sale thereof.
So take not that normally in a PA
property is not sold. It is just simply a
security for the plaintiff as judgment
rendered will be in his favor. Sec. 11
par.1 thereof you have perishable e.g.
rice. It can then be sold at a public
auction. Or in the interest of the
parties will be subserved, like a piece
of land, someone wants to buy it 5
times its assessed value. You might as
well sell it. Makabenefit pa ang both
parties.
Can you for example, attach an
interest of the defendant in parcel of
land. The land is registered in the
name of the a particular individual, the
defendant has bought a portion of that
land. And there is a deed of absolute
sale problem is it is not registered in
the name of the defendant. Can you
attach the interest in that parcel of
land? YES. Including interests. We’re
not attaching on the land itself but
perhaps on the interest in the
property.
Q: What are the remedies of a defendant
whose property has been attached? Is there a
way of helping him?
A: Yes. Look at Sections 12 and 13.
Section 12. Discharge of attachment upon
giving counter-bond.- After a writ of
attachment has been enforced, the party
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whose property haw been attached, or
the person appearing on his befalf, 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 tot he 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.
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 the
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
18
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. (13a)
First remedy: Discharge attachment.
So how do you discharge an
attachment? By posting a counter-
bond. How much would the counter-
bond be? Equal to the value of the
bond that was posted by the plaintiff
because this is supposed to answer for
damages when plaintiff may suffer
because of the discharge.
Or you can have it discharged on some
grounds. (take note)
1. Improperly or irregularly
issued. (no affidavit of merit)
2. Improperly or irregularly
enforced. (attaching a property
which doesn’t belong to
defendant)
3. Bond of plaintiff is insufficient.
4. Excessive attachment.
(discharge is only up to the
excess of the bond)
5. Attachment on property that is
exempt from execution.
(attachment of a family home)
6. There is already a judgment
against the attaching creditor.
Is it automatic that when a counter-
bond is posted the discharge is
automatic? Take note, there has to
always be a hearing. It is only after
hearing that there can be a discharge
of the attachment.
Can you avail of the 2 remedies in
order to discharge an attachment? So
you posted a counter-bond, there was
a hearing and it was released, are you
preclude from questioning the legality
of the issuance? If your grounds is for
example lack of cause of action there
being already a discharge of the
obligation. So you are in a hurry you
post a counter-bond, after hearing the
court allowed it and it was discharged,
take note only the attachment is
released, not the bond posted. Because
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that will answer for damages.
Now my question is there is already
discharge, can you still question the
validity of the discharge of the
attachment? Are you precluded? Under
sec. 13 can you still question? If the
reason is lack of cause of action guys
fortunately you can. Why?
Because the bond is only to answer for
the claim of damages not for the
discharge of the attachment. So you
may still have to prove that the
attachment was illegal or was irregular
and to answer for damages so that you
can claim in your counter-claim for
damages. In other words, the plaintiff
can claim at the same time the
defendant can claim. In so far as when
the principal claim is for a sum of
money and they can claim for damages
and you can ask for enforcement of the
attachment.
So I want you guys to take note of
this.
The first remedy is to post a counter-
bond of the attachment. The counter-
bond will take the place of the attached
property amount equal to the posted
bond.
The second remedy is to file a motion
to discharge the attachment on the
grounds of:
1. Improperly or irregularly
issued.
2. Improperly or irregularly
enforced.
3. Bond of plaintiff is insufficient.
4. Excessive attachment.
(discharge is only up to the
excess of the bond)
5. Attachment on property that is
exempt from execution.
6. There is already a judgment
against the attaching creditor.
So take not of irregular enforcement
that was the change made in the old
rules. Before it was only on irregular
issuance, now it also covers irregular
enforcement.
Q: Is there such a thing as partial
19
discharge ?
For example, I will attach five (5)
parcels of land. The defendant will
say, because somebody wants to buy
one of them, "I am moving to
discharge only one of them and I will
put up a counterbond equal to the
value of one only." In effect, he is
asking for a partial discharge based on
a partial counterbond. Is this allowed
? ASSOCIATION vs. CA
A: Yes, it is now allowed in the new
law, which is not found in the old law.
Look at section 12, 3rd sentence,
starting with the word "but": "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."
So, it is allowed. Like an installment,
partial discharge by the partial
counter-bond. Before, it was all or
nothing. Before it was not allowed.
Q: When a defendant puts up a
counter-bond under section 12, is the
attachment earlier made automatically
discharged?
A: No, according to the case of
Belisle Finance vs. State Investment
House, (151 SCRA 360) it is only after
hearing and the judge has ordered the
discharged of the attachment can it be
valid. There must be an order, mere
filing would not suffice.
Q: Can a person file a counter-bond
and at the same time move to
discharge? Meaning, I will file a
counter-bond to discharge under
section12 and then I will move to
discharge under section 13. Can you
do that, avail of the two (2) sections?
A: Well, if you will follow the ruling in
the case of
CALDERON vs. IAC
155 SCRA 531
The answer is YES. The Court said:
Well, the defendant would like to
question the legality of the attachment
but he is in a hurry, because there
would be a hearing, which would delay
him. So, what should he do? He can
file a counter-bond without waiving his
right to hearing or he will file a
counter-bond with respect to only one
property and continue the hearing
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under Section 13 with respect to the
other property. You do not
waive Section 13 because you applied
Section 12.
BUT there was this contrary ruling in
the case of
MINDANAO SAVINGS AND LOAN
172 SCRA 480
HELD: Objection to the impropriety or
irregularity of writ of attachment may
no longer be invoked once a counter-
bond is filed. By filing a counter-bond
under Section 12, he may not file
another motion under Section 13 to
quash the writ for impropriety or
irregularity. Why? The writ had
already been quashed by filing a
counter-bond, hence, another motion
to quash would be pointless. That is
also logical.
But it would seem that there is
something wrong about the case
especially where there is only a partial
counter-bond under Section 13.
Let us read the first sentence of
Section 13. "The party whose
property has been ordered attached
may file a motion with the court in
which the 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."
So in other words, notwithstanding the
posting of the counter-bond, you can
still question the regularity of the
attachment. This is only for the
purpose of claiming for damages.
Perhaps we have to establish the propriety if
the issuance of the writ. Even in the discharge
of the attachment by posting a counterbond or
on grounds under section 13, the onus
probandi or the burden of proof is not on the
defendant asking for the discharge, it would
still be the plaintiff’s burden to prove the
issuance was regular and proper based on the
grounds enumerated under section 1.
20
And as I have said, considering that in most
cases the affidavit / complaint will only state
general grounds specifying the acts, once it will
be annexed under section 13, then now the
plaintiff has to state the specific acts.
Otherwise if he cannot prove that, then most
likely the attachment will be discharged under
section 13.
That’s why the posting of a counterbond under
sec. 12 will not automatically consider the
defendant has waived his right to question the
validity or propriety of the issuance of the writ
of preliminary attachment under section 13.
Under par. e in an action against a party who
has removed or disposed of his property, or is
about to do so, with the intent to defraud his
creditors, so the purpose here of defrauding
the creditors you must say how, how will that
be established? Remember here it was
removed by the agreement between the
parties that you make payment now so that
this can obligate that whoever this income this
particular vendor would have would help in the
payment of the obligation.
Always remember here guys that the
nonpayment of obligations is not a ground for
an attachment.
That is so far as the first question, let’s go to
the 2nd question.
If granted what would then be your remedy?
First of course is given, you file a counterbond.
Without prejudice to your challenging the
validity of issuance. We go by in this particular
case if granted, we go into the regularity or the
propriety of the issuance itself or that the
grounds are not present, because the burden
lies with the plaintiff. Because if the grounds
are not present particularly on the evidence,
then there was an improper issuance of the
writ. That is the only ground because as to the
rest, the enforcement, that is not yet
established here because we only dwell with
the allegations in the complaint.
Basically, any challenge as to the validity to
discharge the writ would be the ground that
there is no basis for the issuance of the writ
maybe because the fraud was not actually
established.
TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
Let’s go to Section 14.
We’ll finish on attachment next meeting.
-------------------------
---
Oral Recitations
What if you were the owner of the property
that was attached who is not a party to the
case, what would you be your remedy?
1. File an independent action under
Section 14 (Judgment is already
Rendered)
2. File a 3rd-party claim. (No Judgment
Rendered)
3. File a motion for intervention. (No
Judgment is Rendered)
Where would you intervene?
In the main action ma’am.
When judgment is rendered, what would
happen, how do you satisfy the how judgment
based on the property vis-à-vis the attached
property.?
Perishable properties. –to the sheriff not to the
plaintiff.
- Paying to the judgment obligee the
proceeds of all sales of perishable or
other property sold in pursuance of the
order of the court, or so much as
shall be necessary to judgment (Rule
57, Sec. 15, a)
If insufficient? Perishable properties were not
sufficient to satisfy the judgment. Attached….
If not Attached?
- If any balance remains due, by selling
so much of the property, real or
personal, as may be necessary to
satisfy the balance, if enough for that
purpose remain in the sheriff's hands
or in those of the clerk of the court
(Rule 57, Sec. 15, b)
If the attached properties involve bank
deposits, judgment is rendered in favor of the
plaintiff, how do you satisfy the judgment?
How do you garnish the funds?
- By collection from all the persons
having in their possessions credits
belonging to the judgment obligor, or
owing debts to the latter at the time
of the attachment of such credits
debts, the amount of such credits and
debts as determined by the court in
the action stated in the judgment,
and paying the proceeds of such
collection over to the judgment oblige
(Rule 57, Sec. 15, c)
21
 - Serve the bank with writ of
garnishment.
The bank pays to whom?
- The bank pays the plaintiff.
Why to the plaintiff and why not the depositor?
- Because The depositor is substituted
by the plaintiff creditor. The bank does
not give it to the depositor instead to
the plaintiff…
Is the release of the attached property.. You
have in section 19, you have a disposition of
attached property with judgment for a party…
issued, if the judgment is against the plaintiff,
in other words in favor of the defendant, what
would happen to the attached property?
- (Rule 57, Sec. 19)
Disposition of attached property
where judgment is for party against
whom attachment was issued. - If
judgment be rendered against the
attaching party, all the proceeds of
sales and money collected or received
by the sheriff, under the order of
attachment, and all property attached
remaining in any such officer's hands,
shall be delivered to the party against
whom attachment was issued, and
the order of attachment discharged.
Note:
It will be ordered released. It’s not
automatic that the attachment is
discharged. There must be an order for
the release. This was taken from the
case of OLIB vs. PASTORAL. The order
of attachment is not deemed dissolved
upon the rendition of judgment upon
the defendant. The order of
attachment is deemed discharged
when the judgment becomes final
and executory and which is not
deemed on appeal.
If you the defendant turn out to be claiming
damages against the bond that was posted for
the attachment, correct? When do you do that?
- Before the trial or before the appeal is
perfected or before the judgment
becomes final and executory. Ibig
sabihin niyan, you must file your claim
for damages in the same case. Notify
the surety.
Can you file it in a separate action? What will
happen if the appeal is already been perfected?
Cannot claim for damages anymore bec.?
- NO, it is prohibited. It must be claimed
and resolved in the same action.
So it must be filed them before appeal is
perfected or judgment becomes final.
Otherwise, what would you do to claim for
TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
damages? Is it the plaintiff or the surety would
pay right after?
- When the judgment has become
executory, the surety or sureties on
any counter-bond given pursuant to
the provisions of this Rule to secure
the payment of the judgment shall
become charged counter-bond and
bound to pay the judgment obligee
upon demand the amount due under
the judgment, which amount may be
recovered from such surety or
sureties after notice and summary
hearing in the same action. (Rule 57,
Sec. 17)
- I think it’s the surety ma’am that….
The surety.
Discussion about the Seatwork – Grounds
for attachment.
So we had last time was a short quiz on
attachment.. the ground for attachment. What
was the ground for attachment applied for? –
collection for sum of money in collecting an
obligation of payments for the repair of a
vessel.
Was there a basis here for the attachment?
- No!
Why not?
- Fraud was not established by the
applicant. Facts, fraud, the defendant
is already disposing the vessel….
Was there a disposition of the property?
- No, not actually, only subject to a
hearsay ma’am.
Otherwise you have to prove fraud. Does that
require hearing? Can’t it be done only ex-
parte, only in the basis of the allegations?
- No ma’am it would require a hearing.
It cannot be done ex-parte?
- No ma’am,
Discussion:
So basically that is the case, they wanted for
the payment of the repair of the vessel,
apparently the vessel was released on the
agreement that whatever income that the
vessel will get from its operation, it would be
for the obligation of the repair. That was the
fraud that was mentioned and apparently
according to the plaintiff here instead of paying
its obligations, defendant.. bec, its mobile, its
moving, it’s a vessel, it wanted a maritime lien,
attachment on the vessel. So the requirements
of a maritime lien is the same as the
requirement in the writ of attachment. When
the ground for attachment is fraud, in
constituting the property disposed of in order
to prevent and avoid the payment of the
22
obligation, that cannot be based merely on ex-
parte allegation, cause one of the things you
should take note class that there are
jurisprudence regarding on the and we are
cautioned in fact by the supreme court that if
the allegation is … The allegation has to be
established by evidence. Do you understand?
There would be a summary hearing. Cannot
be based on ex-parte on the basis of the
allegations. Now when hearing was conducted,
it was found out that there was already
payment made by the defendant. Only that it
was not fully paid. So if partial payments were
made and the only reason for the attachment
bec it was not fully satisfied, absence of fraud,
there is no basis for the issuance of the writ of
attachment. So you have to be clear on the
allegations so there is mention if partial
payments. If there is mention of partial
payments made then it may only be the reason
of full payment and because of financial
constraint of the defendant having some
problems complying with the obligation with
the plaintiff, that could not be a ground for
issuance of the writ of attachment. Any
questions or clarification so far relating to that?
Discharge of the Attachment
Let’s go to the discharge of the attachment,
what could be the grounds for the discharge of
the attachment.
1. Posting a counter bond or cash deposit
to the value of the property that was
attached.
Always remember that the posting of the
counter bond, would not discharge the liability
or the obligation. Only the attachment that is
discharged. The counter bond will answer for
the damages if judgment is rendered in favor
of the plaintiff. In the event that judgment is
rendered in favor of the defendant, then the
defendant can still hold the surety of the
attachment liable because what was
discharged is the attachment and not the
liability of the surety of the attachment. The
risk of the surety company is assuming when it
risked to guaranty the bond posted for the
attachment. Do you understand that guys?
Also take note that the posting of counter bond
does not automatically discharge of the
attachment. Still the order of the court that
there would be a hearing regarding on that. To
discharge the attachment by reason of posting
of a counter bond… Do you understand?
Another point as regards to the posting of a
counter bond, here the defendant is never
precluded from raising the matter of illegality
or the impropriety of the issuance of the writ
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of attachment or the enforcement of the writ
of attachment (see grounds in no. 6, infra). He
is never precluded. There is no waiver. He can
still ran after them, the surety company for
damages. If the court finds that the issuance is
illegal or improper, he can still ran after them.
Say for example, there was no affidavit of
merit attached, and there is a specifically
alleged renounced or that the surety on
supposedly the attachment.. and may ask for
the discharge of the attachment. It is another
ground for the discharge of the attachment.
2. Fraud was not actually established.
The reason for the discharge of attachment is
for the reason of illegality or the impropriety of
the issuance of the writ of attachment because
there was no fraud at all, oaky, in the
contracting the obligation, therefore there is no
basis for the issuance of the writ of attachment
in the first place.
Now, the next question is who has the burden
then of proving that there was no fraud?
Should it be plaintiff or the defendant asking
for the discharge? Taka note!, it is the burden
of the plaintiff to prove that there was fraud
because it is the plaintiff who is alleging and
applying for the writ attachment and the
burden of proving that the ground for
attachment lies with the applicant. So, even if
it was the defendant who asked for the
discharge for lack of fraud, the one that has
the burden of proving that there was fraud is
on the plaintiff. Is that clear? Any problems,
any questions or clarifications regarding on
that.
3. When the attachment is excessive, of
course if there is any discharge, it
would be only on the excess of the
supposed obligation of the defendant.
Remember I had this one case class, ni dagan
ang defendant to the plaintiff, olrayt? Now
what happened here is the plaintiff not only
attached the personal properties of the
defendant but as well as his properties. The
basis of the attachment is the deed of absolute
sale it says 20M value, so far from the interest
of the defendant in the value is 10M. Naturally
what would the defendant do is to discharge
the excess because the 20m is more than the
principal obligation. It is only partially
discharged from the attachment so far as the
excess of amount is concerned.
4. When the property attached is exempt
from execution, like a constituted
family home. It has to be constituted
as a family home not merely an
allegation, then it’s not exempt from
attachment.
23
 5. When the judgment is rendered
against the attaching creditor
For example the plaintiff, the attaching
creditor, the case was dismissed for lack of
basis in which case the attachment is
discharged. But is it automatic? Again the
answer is there has to be an order of the court
directing the discharge of the attachment. Do
you understand? Then again, as I’ve said
before, what would the defendant do after the
discharge of the attachment is for damages,
and the defendant may have to run after the
surety because their obligation is not
discharged for damages. But make sure that
the defendant.. it has to have before the
judgment is final or appeal is perfected
because of the requirement that if there are
any claim for damages, you have to put up
your counter claim by asking it in your answer.
It must be stated there that you are claiming
for damages and run after the bond posted by
plaintiff. So it has to be decided at the same
time because the court has to make judgment
on the complaint as well as the counter-claim.
You cannot file a separate action for damages.
It has to be in the same case. You can file a
motion for damages even before judgment is
rendered on the main case. The moment the
case is appealed, you will lose forever the right
to claim against the bond posted. Any
questions or clarifications relating to that guys?
6. Illegal Enforcement
Grounds:
1. that it was improperly or irregularly
issued.
2. that it was improperly or irregularly
enforced.
3. that the bond of the plaintiff is
insufficient.
Third Party Claim
Now let’s go to the matter of a claim of a third
party. A third party is who claims to be the
owner of the property that was attached by the
attaching creditor. What would be the remedy
of the third party class?
He has to file an independent action under Sec.
rd
14 provides here, where property by 3
person…
He has to make an:
- (1)affidavit to the effect that he has
title there to.
- (2)Stating the grounds of such title.
The moment it is served upon the defendant
what would happen? Is the sheriff bound to
keep the property under attachment w/c is
claimed by a third party.
TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
- No, unless the plaintiff would post a
bond. Equivalent to the value of the
property that was being claimed by the
third person. Do you understand? That
is section 14.
What if it is the government that is claiming for
the property, is a bond required?
- No, if damages is pursued by
the third person (government),
he would be represented by
the solicitor general. if held
liable therefor, the actual
damage adjudged by the court
shall be paid by the National
Treasurer out of the funds to
be appropriated for the
purpose.
If it is not under section 14, how else can a
rd
third party course a 3 party complainant?
rd
- Then he has to file a 3 party claim or
he has to file a motion for intervention.
Question: Can you file a separate independent
action for damages when judgment becomes
final and executory? Would it not violate the
principle that one is not supposed to disturb
the judgment of a co-equal court? Should that
be allowed?
- Yes.
Nothing herein contained shall
prevent such claimant or any
third person from vindicating
his claim to the property or
prevent the attaching party
from claiming damages
against a third-party claimant
who filed a frivolous or
plainly spurious claim, in the
same or separate action.
(Rule 57, Sec. 14, Par. 2)
Summary third party claim:
A third party complainant has to:
(1)affidavit to the effect that he has title there
to.
(2)Stating the grounds of such title.
The moment it is served upon the defendant
the sheriff is not bound to keep the property
under attachment w/c is claimed by a third
party, unless the plaintiff would post a bond
equivalent to the value of the property that
was being claimed by the third person.
Choose among the following actions:
1. File an independent action under
Section 14 (Judgment is already
Rendered)
2. File a 3rd-party claim. (No Judgment
Rendered)
24
 3. File a motion for intervention. (No
Judgment is Rendered)
If damages is pursued by the third
person (government), he would be
represented by the solicitor general. if
held liable therefor, the actual
damage adjudged by the court shall
be paid by the National Treasurer out
of the funds to be appropriated for the
purpose.
SOME EXPRESSLY ASSIGNED CASES ON
PRELIMINARY ATTACHMENT
Adlawan and Adlawan vs Torres
Facts : Aboitiz filed against petitioners two
complaints for collection of sums of money
with prayers for the issuance of writs of
attachment. The complaint states:
"16. That, in view of the enormous
liabilities which the defendants have
with the plaintiff, defendants
executed a real estate mortgage
covering eleven (11) parcels of land
in favor of Philippine Commercial and
Industrial Bank (PCIB) to secure a
P1,000,000.00 loan with said bank
and was able to remove, conceal and
dispose of their properties, obviously
to defraud the plaintiff,
The affidavit submitted by respondent Aboitiz
states:
That a sufficient cause of
action exists against the
defendants named therein
because the said defendants
are indebted to the plaintiffs
in the amount of
P13,430,259.14 exclusive of
interests thereon and
damages claimed;
That the defendants have removed
or disposed of their properties with
TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
intent to defraud the plaintiff, their
creditor, because on May 27, 1982
they executed a real estate mortgage
in favor of Philippine Commercial and
Industrial Bank (PCIB) covering
eleven (11) of their fifteen (15)
parcels of land in Cebu to secure a
P1,100,000.00 loan with the same
bank
Issue: Will P.A. issue against a debtor who
mortgaged his properties on the ground that it
is done in fraud of creditors
Ruling: NO.
1) It is evident from said affidavit that the
prayer for attachment rests on the mortgage
by petitioners of 11 parcels of land in Cebu,
which encumbrance respondent Aboitiz
considered as fraudulent concealment of
property to its prejudice. We find, however,
that there is no factual allegation which may
constitute as a valid basis for the contention
that the mortgage was in fraud of respondent
Aboitiz.
2) Bare allegation that an encumbrance of a
property is in fraud of the creditor does not
suffice. Factual bases for such conclusion must
be clearly averred
3) The execution of a mortgage in favor of
another creditor is not conceived by the Rules
as one of the means of fraudulently disposing
of one's property. By mortgaging a piece of
property, a debtor merely subjects it to a lien
but ownership thereof is not parted with.
4) The inability to pay one's creditors is not
necessarily synonymous with fraudulent intent
not to honor an obligation
Quasha vs Juan
FACTS: Petitioner law firm representing
Abdullah Baroom (the respondent agent in
Jeddah of debtor-charterer in the collection
case pending in CFI of manila against such
debtor – charterer AB Charles Thorburn Co
who was said to have failed to pay its daily
charter dues to ship owner Filipinas Carriers,
forcing the latter to enforce its maritime lien
over its cargoes) filed a manifestation and
motion that it be allowed to withdraw from the
case and that a charging lien be recorded
against the cargoes of Baroom on board MV
San Vicente for unpaid professional fees and
reimbursement of expenses. Pending which,
petitioner also filed with the Court of First
Instance of Rizal a complaint for the recovery
25
of professional fees with a prayer for a writ of
preliminary attachment. PA was granted in
Rizal Court. However, Filipinas Carriers also
succeeded in the pending civil case in the
Manila Court and as such, its sale of the cargo
to Apollo Kokin Trading Co., Ltd was approved.
Petitioner law firm questioned such order
considering that subject cargo was allegedly
earlier attached by the Court of First Instance
of Rizal which it now seeks to enforce by its
sale to Sierra Madre. On the other hand,
Filipinas Carriers wanted to set aside the PA
issued by CFI Rizal. When the PA was lifted,
Petitioner filed subject MR for resolution in this
case raising among others, CFI of Manila’s lack
of jurisdiciton over the res and over the person
of the defendant.
ISSUES: WON CFI of Manila had jurisdiction
over Baroom; WON CFI of Manila had
jurisdiction over the res; WON petitioner the
firm can enforce its lien in the CFI of Rizal.
RULING:
1) At the initial stage, it did not. Baroom was a
non-resident alien and he was beyond the
reach of the court's legal processes. But since
the action is brought principally for the
enforcement of maritime lien against the
property of defendants who failed to pay the
charter hire fee, and therefore the same is in
the nature and character of a proceeding quasi
in rem, jurisdiction over defendant Baroom is
not essential. However, later, when Barroom
filed a motion to dismiss, he was deemed to
have voluntarily submitted to the court’s
jurisdiction.
2) Yes, the court had jurisdiction over the res.
Where a property is burdened by a lien, a writ
of attachment is no longer necessary in order
that jurisdiction over the property may be
obtained by the court The reason for the rule is
obvious. An attachment proceeding is for the
purpose of creating a lien on the property to
serve as security for the payment of the
creditors' claim. Hence, where a lien already
exists, as in this case a maritime lien, the
same is already equivalent to an attachment.
Moreover, since the property subject of the
action for the enforcement of the maritime
liens was already in the possession of private
respondent, there is no need for seizure for the
court to obtain jurisdiction over the res.
3) No, the lawyers may not enforce its lien by
virtueof the PA issued by CFI of Rizal.
Petitioner should have maintained its action in
respondent's court. After all, a court which has
in its possession, control or equivalent
dominion, property or funds involved in
TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
litigation may exercise exclusive jurisdiction
over such property or funds to determine the
rights therein, such as questions respecting the
title, possession or control, management and
disposition thereof and another court of
concurrent or coordinate jurisdiction cannot
interfere with such possession or control.
Biñan Steel Corp vs CA
F: Pending a collection case filed against the
Ng spouses by BSC, latter’s property was
attached. Ng spouses sold the property to the
Garcias who was issued a new TCT, which still
carried with it the annotation of the writ of
preliminary attachment. The Garcias sought to
cancel the annotation. BSC won the case.
Garcias sought to restrain the execution sale
through applying for a writ of preliminary
injunction before the CA. Subsequently, the
public auction was held and the property was
awarded to BSC as the highest bidder.
I: WON BSC had a better right over the
property than the Garcias entitling them to
enforce the writ of PA annotated on the title pf
said property
R: Yes. BSC had a better right over the
property and the PA should prevail over the
sale to Garcia.
1) Attachment is a proceeding in rem. It is
against the particular property, enforceable
against the whole world. The attaching creditor
acquires a specific lien on the attached
property which ripens into a judgment against
the res when the order of sale is made. Such a
proceeding in effect means that the property
attached is an indebted thing and a virtual
condemnation of it to pay the owner's debt.
Thus, if the property attached is subsequently
sold, the purchaser of the attached property
acquires it subject to an attachment legally
and validly levied thereon
2) It is doctrinal that a levy on attachment,
duly registered, has preference over a prior
unregistered sale and, even if the prior
unregistered sale is subsequently registered
before the sale on execution but after the levy
is made, the validity of the execution sale
should be upheld because it retroacts to the
date of levy. The priority enjoyed by the levy
on attachment extends, with full force and
effect, to the buyer at the auction sale
conducted by virtue of such levy. The sale
between the spouses Ng and the Garcias was
undoubtedly a valid transaction between them.
However, in view of the prior levy on
attachment on the same property, the Garcias
26
took the property subject to the attachment. to do business here, to the status of domestic
The Garcias, in buying registered land, stood corporations
exactly in the shoes of their vendors, the Ngs, 3) The benefit of that section will be
and their title ipso facto became subject to the minimized, if not entirely defeated, if a creditor
incidents or results of the pending litigation or a few creditors can obtain privileged liens by
between the Ngs and BSC. writs of attachment based on the sole
allegation, which is easily and safely made,
Claude Neon Lights vs Philippine that the corporation is "not residing in the
Advertising Corp. Philippine Islands". (Cf. Kuenzle & Streiff vs.
Villanueva, 41 Phil., 611.)
F: Philippine Advertising Corporation filed suit
against the petitioner in the Court of First
Instance of Manila, claiming P300,000 as PNB vs Pabalan
damages for alleged breach of the agency
contract existing between the said respondent
and the petitioner. At the same time, said
F: Judgment was rendered against respondent
respondent filed in said court an application for
Philippine Virginia Tobacco Administration. A
writ of attachment duly verified in which it is
writ of execution, followed thereafter by a
stated that the defendant (petitioner herein) is
notice of garnishment of funds for the full
a foreign corporation having its principal place
amount mentioned in the writ, was issued by
of business in the City of Washington, District
respondent judge. Petitioner Philippine National
of Columbia duly licensed to do business in the
Bank, with whose La Union Branch the funds to
Phils. It is not alleged in said application that
be garnished are deposited, objected and
the defendant, Claude Neon Lights, Inc. (the
raised the doctrine of non-suablity of the state,
petitioner herein) was about to depart from the
alleging that such funds are public in
Philippine Islands with intent to defraud its
character. Failing to have the order set aside,
creditors or that it was insolvent or had
petitioner instituted this present action.
removed or disposed of its property or was
I: WON PNB can set up the defense of state
about to do so with intent to defraud its
immunity from suit to bar garnishment
creditors. The only statutory ground relied
upon in the court below and in this court for
R: NO. In a case brought by the same
the issuance of the writ of attachment against
petitioner precisely invoking such a doctrine,
the petitioner is paragraph 2 of section 424 of
left no doubt that the funds of public
the Code of Civil Procedure, which provides
corporations could properly be made the object
that a plaintiff may have the property of the
of a notice of garnishment.
defendant attached "in an action against a
1) PNB is a GOCC which had a personality
defendant not residing in the Philippine
of its own, distinct and separate from the
Islands"
Government.
It waived such immunity as it is engaged in
I: WON attachment should issue to a credit of
proprietary functions.
a foreign corporation licensed to do business in
the Philippines
-------------------------
R: NO. Having regard to the reason for the
PRELIMINARY INJUNCTION
statute, which is the protection of the creditors
of a non-resident, Par. 2 of Sec. 242 of the
Q- Who has jurisdiction to issue preliminary
Code of Civil Procedure is not applicable to
injunction?
foreign corporation as it would apply to a
A- The Court (RTC) where the case is pending,
natural person, rendering the issuance of such
CA, SC
writ without any legal basis.
Q- What is the coverage of jurisdiction of the
RTC?
1) Corporations, as a rule, are less mobile
A- Applicable only to its territorial jurisdiction
than individuals. This is specially true of
Q- What if the acts to be enjoined is outside of
foreign corporations that are carrying on
its territorial jurisdiction?
business by proper authority in these Islands
A- Generally, the RTC cannot issue a
2) Paragraph 2 of section 424, supra, does
preliminary injunction outside its territorial
not apply to a domestic corporation. Our laws
jurisdiction.
and jurisprudence indicate a purpose to
assimilate foreign corporations, duly licensed

27
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Q- Example: X is working for the Department
of Agriculture (DA), he is working in Cebu and
the Central Office is in Quezon City. The
Central office ordered his removal from office
here in Cebu. Can X apply for a preliminary
injunction here in Cebu to stop the
enforcement of the order of DA that is based in
Quezon City?
A-
Q- What is the coverage of the jurisdiction of
the CA?
A- The coverage is all throughout the
Philippines.
Q- Cite the instances when a preliminary
prohibitive injunction may lie?
A-
Q- Can you ask for an injunction for abatement
of nuisance per accidens?
A- You cannot, since it is not yet declared as
such, therefore there is no cause of action yet.
Q- Can you ask for injunction, when there is
repeated trespass?
A- Yes
Q- Restraining voting of disputed shares of
stocks? Can you refrain that?
A-
Q- Can you restrain the collection of taxes?
A- No, because it would be prejudicial to the
Government Operations
Q- Is that absolute? (referring to question
above)
A: No, it is not absolute. (Excessive Taxes)
Q- Can you enjoin criminal prosecution?
A- Generally, you cannot enjoin a prosecution
of a criminal case.
Note: Remember, a preliminary injunction can
only be issued when there is no adequate or
speedy remedy available.
Q- Can you issue a Restraining Order ex parte?
Under what circumstances?
Q- For how many days (effectivity)? Who may
issue? 2.
A- Three days by the Executive Judge (Multiple
Sala)
Q- What if it will not be resolved within 72
hours?
A- You may file for an extension up to 20 days
(include the first three days)
Q- Can that be issued ex parte? (extension)
Q- When does the court set the hearing?
(extension)
Q- Can you proceed with the hearing, even if
the court has not yet acquired jurisdiction? The
respondent has not yet been notified?
Q- What if the 20 day period has already
lapsed, can you extend it? What is not your
remedy?
TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
-END OF ORAL RECITATION-
We now distinguish negative injunction and
mandatory injunction.
--> What are the essential requisites of the
issue of preliminary injunction?
1.) Applicant must have a clear and
unmistakable right
*In doubt: The courts must resolve it against
the issuance of an injunction. TRO
2.) Established that the right has been
violated. There must be material and
substantial invasion of such right.
3.) And there must be an urgent need for a
writ of preliminary injunction to be issued to
prevent irreparable injury of the applicant.
*Irreparable injury- It cannot be compensated
in the terms of injury.
4.) (Stressed by the judge as the most
important part) There is no ordinary, speedy
and adequate remedy.
WRIT OF PRELIMINARY INJUNCTION
Mirasol vs DPWH
F: The petition sought the declaration of nullity
of several administrative issuances of the
DPWH for being inconsistent with the
provisions of Republic Act 2000, entitled
"Limited Access Highway Act” when it declaring
the Manila-Cavite (Coastal Road) Toll
Expressway as limited access facilities.
Petitioners prayed for the issuance of a
temporary restraining order and/or preliminary
injunction to prevent the enforcement of the
total ban on motorcycles along the entire
breadth of North and South Luzon Expressways
and the Manila-Cavite (Coastal Road) Toll
Expressway under DO 215. Such was granted.
Petitioners rely on the RTC's Order which
granted their prayer for a writ of preliminary
injunction. Since respondents did not appeal
from that Order, petitioners argue that the
Order became "a final judgment" on the issues.
I: WON such court order granting PI
constituted res judicata over the issues in the
case
R: No. As the RTC correctly stated, the Order
was not an adjudication on the merits of the
case that would trigger res judicata. A
28
preliminary injunction does not serve as a final (b) there is a material and
determination of the issues. It is a provisional substantial invasion of such
remedy, which merely serves to preserve the right;
status quo until the court could hear the merits
of the case. Thus, Section 9 of Rule 58 of the (c) there is an urgent need for
1997 Rules of Civil Procedure requires the the writ to prevent irreparable
issuance of a final injunction to confirm the injury to the applicant; and
preliminary injunction should the court during
trial determine that the acts complained of
(d) no other ordinary, speedy,
deserve to be permanently enjoined. A
and adequate remedy exists to
preliminary injunction is a mere adjunct, an
prevent the infliction of
ancillary remedy which exists only as an
irreparable injury.
incident of the main proceeding.

2) It must be emphasized that an

Marquez et al vs Judge Sanchez
F: DBP sought to foreclose the REM over
LEAD’s properties which was incorporated by
Marquez after it defaulted in settling its
contractual obligations arising from
agricultural loan used in its deep – sea fishing
business. Heirs of Marquez prayed for the a
writ of PI to enjoin DBP from the threatened
extrajudicial foreclosure. In support of the
instant petition, petitioners raise the issues of
applicability of P.D. 385, denial of due process,
and the extent of the loan covered by the REM
constituted on petitioners' realty under TCT No.
T-24506.
I: WON mortgagor sufficiently alleged the
requisites of a writ of PI in their affidavits
entitling them the issuance of such writ
R: NO. The requisites for injunctive writ
are not present
1) The requisites of preliminary injunction
whether mandatory or prohibitory are the
following:
(a) the applicant must have a
clear and unmistakable right,
that is a right in esse;
While not preempting the disposition of
the main case, a close review of the
records at hand would show that the
loan and the REM seem to be above
scrutiny. Respondent DBP had shown
documentary evidence of how the
assailed transactions transpired, and
how and why Marquez and other LEAD
principals signed and agreed to be
solidarily liable for LEAD's loans as well
as their voluntary mortgage of their
properties to secure said loans.
application for injunctive relief is
construed strictly against the
pleader. Based on the pleadings
and the evidence presented in the
hearing for the issuance of the
an injunctive writ, that petitioners
demonstrated a strong basis for
the grant of the injunctive writ.
The allegations of the complaint on
the defense that the agreement
was that of a partnership is at war
with the loan and mortgage
documents they signed.
Apparently, in resolving the prayer
for injunction, the courts a quo
relied more on these documents
than the bare averments of
petitioners on the alleged
partnership.
3) As to petitioners’ defenses
a. P.D. 385, proscribing
the issuance of an injunctive writ
against governmental financial
institutions in effecting
foreclosure, applies. More so,
during the hearing for the
issuance of the injunctive writ,
Marquez and petitioners had not
shown that 20% of the
arrearages of the mortgage loan
had been duly paid. It was not
sufficiently shown that DBP
misapplied the money so as to
sanction the inapplicability of
such provision
b. The grant of an
injunctive writ, being an ancillary
remedy, which could result in a
premature resolution of the case
— or will grant the principal
objectives of the parties —

29
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 before the merits can be passed
upon, is proscribed, and the
prayer for the relief will be
properly denied, as in the instant
case. Indeed, the evidence
required for the trial court to
consider during the hearing was
only a sample and intended
merely to give it an idea of the
justification for the injunctive
writ pending decision of the case
on the merits, which must rest
on solid grounds. As it is,
Marquez had been given ample
opportunity to present evidence
to support his prayer for the
injunctive writ and was therefore
not denied due process.
c. The issue of the
property being a family home
and not a corporate property
veers away from the clear
contractual agreement of the
REM. Undeniably, the subject
REM was a second mortgage as
Marquez already mortgaged his
property (TCT No. T-24506) to
another bank. Besides, it bears
stressing that the Marquez
spouses were solidarily liable
with LEAD for the loans.
Mison vs Natividad
F: Customs commissioner confiscated 20 units
of “assembled – disassembled” knockdown
vehicles of Carlos for violation of customs laws.
The latter alleged that he is the owner of
several vehicles which are legally registered in
his name and that he has paid all the taxes
and "corresponding licenses" therefor; he
further avers that elements of the defendant
Bureau of Customs and/or Customs Police have
surrounded his residence threatening to take
possession of the vehicles. He finally prays that
the latter be enjoined from doing so and that
they be ordered to pay damages. By virtue of
the restraining order, the physical transfer of
the vehicles was deferred.
I: WON TRO should be issued to restrain
Customs Comissioner from executing seizure
and forfeiture proceedings
R: NO.The court a quo has no jurisdiction over
the res subject of the warrant of seizure and
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detention. The respondent Judge, therefore,
acted arbitrarily and despotically in issuing the
temporary restraining order, granting the writ
of preliminary injunction and denying the
motion to dismiss, thereby removing the res
from the control of the Collector of Customs
and depriving him of his exclusive original
jurisdiction over the controversy. Respondent
Judge exercised a power he never had and
encroached upon the exclusive original
jurisdiction of the Collector of Customs. By
express provision of law, amply supported by
well-settled jurisprudence, the Collector of
Customs has exclusive jurisdiction over seizure
and forfeiture proceedings and regular courts
cannot interfere with his exercise thereof or
stifle or put it to naught.
Ownership of goods or the legality of its
acquisition can be raised as defenses in a
seizure proceeding; if this were not so, the
procedure carefully delineated by law for
seizure and forfeiture cases may easily be
thwarted and set to naught by scheming
parties. Even the illegality of the warrant of
seizure and detention cannot justify the trial
court's interference with the Collector's
jurisdiction. In the first place, there is a
distinction between the existence of the
Collector's power to issue it and the regularity
of the proceeding taken under such power. In
the second place, even if there be such an
irregularity in the latter, the Regional Trial
Court does not have the competence to review,
modify or reverse whatever conclusions may
result therefrom.
WHEN PRELIMINARY ATTACHMENT IS
ALLOWED
1. During the pendency of a Petition
for Relief of Judgment on the
ground of FAME within 60 days
from notice of judgment and not
more than 6 months after entry of
judgment where such remedy is
necessary for the preservation of
rights of the parties. (Sec.5 Rule
38)
2. In petitions for certiorari,
prohibition and mandamus (AM 07
– 07 – 12 – SC)
3. To restrain continued breach of a
valid negative obligation
Ollendorf vs Abrahamason
30
F: Shortly after former employee
Abrahamson’s return to Manila and the
commencement by him of the discharge of
the duties of his position as local manager of
the Philippine Embroidery Company,
Ollendorf commenced this action, the
principal purpose of which is to prevent, by
injunction, any further breach of that part of
defendant's contract of employment by
plaintiff, by which he agreed that he would
not "enter into or engage himself directly or
indirectly . . . in a similar or competitive
business to that of (plaintiff) anywhere
within the Philippine Islands for a period of
five years . . ." from the date of the
agreement. The lower court granted a
preliminary injunction, and upon trial the
injunction was made perpetual. Abrahamson,
as appellant, argues that plaintiff failed to
substantiate the averments of his complaint
to the effect that the business in which the
defendant is employed is competitive with
that of plaintiff.
I: WON writ of PI may be issued to restrain a
continued breach of a valid negative
obligation
R: Yes. Considering that the clause in the
contract is ruled as valid and constituting a
restraint of trade, the right of the former
employer to protect its business interest
from illegal or unfair competition must be
upheld by granting its prayer for a writ of PI.
1) The admitted fact that plaintiff has failed
to establish proof of pecuniary damage by
reason of the breach of the contract by
defendant by the acts committed prior to the
issuance of the preliminary injunction is, of
course, a bar to any money judgment for
damages for the breach of the contract, but
will not justify us in permitting defendant to
continue to break his contract over plaintiff's
objection. The injury is a continuous one.
The fact that the court may not be able to
give damages for that part of the breach of
the contract, which had already taken place
when its aid was invoked, is no reason why it
should countenance a continuance of such
disregard of plaintiff's rights.
2) With respect to the contention that
an injunction may only be granted to
prevent irreparable injury, the answer
is that any continuing breach of a valid
negative covenant is irreparable by the
ordinary process of courts of law. "By
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'irreparable injury' is not meant such
injury as is beyond the possibility of
repair, or beyond possible
compensation in damages, nor
necessarily great injury or great
damage, but that species of injury,
whether great or small, that ought not
to be submitted to on the one hand or
inflicted on the other; and, because it
is so large on the one hand, or so small
on the other, is of such constant and
frequent recurrence that no fair or
reasonable redress can be had therefor
in a court of law." Wahle vs. Reinbach
(76 Ill., 322)
4. To restrain a spouse from
alienating/ encumbering
property during the pendency of
the proceedings for the
annulment of marriage
5. To enjoin continued tresspass
Rudolfa vs Alfonso et al
F: Rudolfa asked for the reconveyance of 15
parcels of land from possessor respondent
Pablo de Moral. In response to this, Moral
prayed for a writ of PI against Rudolfa to
desist and refrain from molesting and
retarding or otherwise disturbing the
possession of Pablo del Moral of said fifteen
parcels of land, until further orders from the
court. Rudolfa on the other hand posted a
counterbond, which was later denied. The
fifteen parcels of land in question had been
registered in the name of the respondent
Pablo del Moral, under the Torrens System;
that the respondent has been in possession
of said lands for more than 20 years; that
after the filing of the complaint in said civil
case, petitioner in this case, by means of
threats and intimidation, attempted to take
possession of all or some of the lands,
without waiting for the decision of the court
in civil case instituted by him against herein
respondent Pablo del Moral, for the return of
possession and reconveyance of said lands;
and that there is now a dispute as to the title
or ownership of said fifteen parcels of land,
between the petitioner on the one hand, and
the respondent Pablo del Moral in the instant
case, on the other.
31
I: WON writ of PI can enjoin continued
trespass
R: YES. Injunction, as a rule, will not be
granted to take property out of the
possession or control of one party and place
it into that of another whose title has not
clearly been established by law. The rule that
a court should not, by any means of a
preliminary injunction, transfer property in
litigation from the possession of one party to
another, is more particularly applicable
where the legal title is in dispute and the
party having possession asserts ownership in
himself.
But the fact that the petitioner might have
been in sporadic possession of all or some of
the lands in question, in the last months of
1945, having entered the same, by means of
threats and intimidation, will not prevent the
issuance of a writ of preliminary injunction in
favor of herein respondent. in whose name
said lands had been registered under the
Torrens System, and who has been in
possession thereof, during the last 20 years,
as said possession of the petitioner is
completely and absolutely illegal. Where a
person other than the owner from time to
time unlawfully enters upon land and
commits depredations thereon, as by cutting
wood or bamboo, the true owner, having
possession, can maintain an action to quiet
title and enjoin the intruder from the
repetition of such trespass in the future. The
circumstance that the trespasser in such
case also pretends to ownership of the same
land is immaterial. The defendant may
invoke this remedy to maintain status quo,
when the plaintiff himself is the wrongdoer,
under the provisions of Rule 60, section 6, of
the Rules of Court.
6. To restrain a city from abatement
of nuisance per accidens
The Ilo-ilo Ice and Cold Storage Co vs.
Mun. Council of Iloilo
F: Nearby residents of the Ice plant of
plaintiff complained of the smoke from the
plant claiming it was very injurious to their
health and comfort. Mun. Board issued a
resolution ordering investigation of the case
and thereafter ordering said plant to elevate
its smokestacks. When plaintiff failed to
comply, it was forced to close. Upon notice
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and hearing, a writ of PI was issued by the
Board. Plaintiff now questions said issuance.
I: WON a writ of PI is proper to restrain the
city government from abatement of a
nuisance per accidens
R: YES. Injunction lies to restrain a city from
proceeding with the abatement of a nuisance
per accidens before it has been judicially
declared to be such.
In the present case it is certain
that the ice factory of the plaintiff is not a
nuisance per se. It is a legitimate industry,
beneficial to the people, and conducive to
their health and comfort. If it be in fact a
nuisance due to the manner of its
operation, that question cannot be
determined by a mere resolution of the
board. The petitioner is entitled to a fair
and impartial hearing before a judicial
tribunal.
7. To restrain stockholders from
voting to authorize the sale of
shares of stock
Madrigal vs Rodas
F: Madrigal claimed that a certain amount of
the shares of stock by the corporation
(Consolidated Investments) was validly sold to
him. But the directors of such corporation
contend that it wasn’t since it was sold by
unauthorized individuals. Madrigal asked for a
writ of PI from the court enjoining the directors
from disposing any of said shares allegedly
sold to plaintiff. Consolidated Investment sold
a substantial amount of these shares of stocks
to the Magdalena Estate. Thereafter, the court
issued the writ of PI in favor of Madrigal. Corp.
on the other hand sought to discharge the writ
through the filing of a bond.
I: WON the writ of PI may be issued to restrain
stockholders of a corporation from authorizing
the sale of shares of stock.
R: Yes. If not restrained by a writ, the shares
of the corporation may be sold to innocent
parties. Twenty million (20,000,000) shares
were actually sold by the Magdalena Estate,
Inc. to other persons before the issuance of
the writ in the case pending in the respondent
court. The latter should not allow such a
32
situation to arise or to be brought about if it
could be instrumental in preventing it. Hence,
in cases like the one pending in the respondent
court, a writ of preliminary injunction is the
most appropriate and effective remedy to
prevent any injustice that may be committed
by one party against the other.
8. To restrain a sheriff from levying
on property not belonging to the
judgment debtor
Codesal and Ocampo vs Ascue
F: Ascue, administatrix of the estate of Pedro
Martinez, obtained a favorable judgment in a
c ollection case against Matias Caoibes. Upon
said judgment an execution was issued and
placed in the hands of the sheriff: that the
sheriff, at the direction of the Ascue in said
action, attached a certain piece or parcel of
land. Plaintiffs herein being informed of said
attachment, and alleging that they were the
owners of said parcel of land, notified the
sheriff of that fact; that said notice was given
in accordance with the requirements of the
law; that notwithstanding said notice the
sheriff persisted in his determination to sell
said of land under said execution, the
defendant herein having executed and
delivered to the sheriff the bond required by
law. Due to the persistence of the sheriff in
his determination to sell said parcel of land
under said execution, the present action was
commenced for the purpose of enjoining him
from executing said sale.
I: WON a writ of PI can resrain a sheriff from
levying property not belonging to a judgment
debtor
R: YES. Premised on the established fact
that the plaintiffs are the owners of said
property in fee simple, the injunction in the
present case was not an attempt to try title
of real property, but an effort on the part
of the plaintiffs to protect their rights
under an absolute title already acquired.
While it is true that the plaintiffs might
have permitted the sheriff to have sold
their property for the purpose of paying
the debts of another and have resorted to
an action upon the sheriff's bond, yet, in
our opinion, the plaintiffs were justified in
seeking the remedy which they obtained in
the present case for the purpose of saving
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their property, and for the purpose of
preventing a cloud being cast upon it.
A sheriff has no authority to attach the
property of any person except that of the
judgment debtor. If he does so the writ
affords him no justification, for the act is not
in obedience to the mandate of the writ of
execution.
WHEN THE WRIT OF PRELIMINARY
INJUNCTION SHOULD NOT BE ALLOWED
1. Labor Cases (GR & EXC)
GENERAL RULE (Art. 126 & Art. 254)
Article 126. Prohibition against injunction. -
No preliminary or permanent injunction or
temporary restraining order may be issued by
any court, tribunal or other entity against any
proceedings before the Commission or the
Regional Boards. (As amended by Republic Act
No. 6727, June 9, 1989).
Article 254. Injunction prohibited. – No
temporary or permanent injunction or
restraining order in any case involving or
growing out of labor disputes shall be issued
by any court or other entity, except as
otherwise provided in Articles 218 and 264 of
this Code. (As amended by Batas Pambansa
Bilang 227, June 1, 1982).
EXCEPTIONS (Art. 218 [e] and Art. 263 [g])
Article 218 (e) To enjoin or restrain any
actual or threatened commission of any or all
prohibited or unlawful acts or to require the
performance of a particular act in any labor
dispute which, if not restrained or performed
forthwith, may cause grave or irreparable
damage to any party or render ineffectual
any decision in favor of such party: Provided,
That no temporary or permanent injunction
in any case involving or growing out of a
labor dispute as defined in this Code shall be
issued except after hearing the testimony of
witnesses, with opportunity for cross-
examination, in support of the allegations of
a complaint made under oath, and testimony
in opposition thereto, if offered, and only
after a finding of fact by the Commission, to
the effect:
33
(1) That prohibited or unlawful acts have been
threatened and will be committed and will be
continued unless restrained, but no injunction
or temporary restraining order shall be issued
on account of any threat, prohibited or
unlawful act, except against the person or
persons, association or organization making
the threat or committing the prohibited or
unlawful act or actually authorizing or ratifying
the same after actual knowledge thereof;
(2) That substantial and irreparable injury to
complainant’s property will follow;
(3) That as to each item of relief to be granted,
greater injury will be inflicted upon
complainant by the denial of relief than will be
inflicted upon defendants by the granting of
relief;
(4) That complainant has no adequate remedy
at law; and
(5) That the public officers charged with the
duty to protect complainant’s property are
unable or unwilling to furnish adequate
protection.
Such hearing shall be held after due and
personal notice thereof has been served, in
such manner as the Commission shall direct, to
all known persons against whom relief is
sought, and also to the Chief Executive and
other public officials of the province or city
within which the unlawful acts have been
threatened or committed, charged with the
duty to protect complainant’s property:
Provided, however, that if a complainant shall
also allege that, unless a temporary restraining
order shall be issued without notice, a
substantial and irreparable injury to
complainant’s property will be unavoidable,
such a temporary restraining order may be
issued upon testimony under oath, sufficient, if
sustained, to justify the Commission in issuing
a temporary injunction upon hearing after
notice. Such a temporary restraining order
shall be effective for no longer than twenty
(20) days and shall become void at the
expiration of said twenty (20) days. No such
temporary restraining order or temporary
injunction shall be issued except on condition
that complainant shall first file an undertaking
with adequate security in an amount to be
fixed by the Commission sufficient to
recompense those enjoined for any loss,
expense or damage caused by the improvident
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or erroneous issuance of such order or
injunction, including all reasonable costs,
together with a reasonable attorney’s fee, and
expense of defense against the order or
against the granting of any injunctive relief
sought in the same proceeding and
subsequently denied by the Commission.
The undertaking herein mentioned shall be
understood to constitute an agreement entered
into by the complainant and the surety upon
which an order may be rendered in the same
suit or proceeding against said complainant
and surety, upon a hearing to assess damages,
of which hearing, complainant and surety shall
have reasonable notice, the said complainant
and surety submitting themselves to the
jurisdiction of the Commission for that
purpose. But nothing herein contained shall
deprive any party having a claim or cause of
action under or upon such undertaking from
electing to pursue his ordinary remedy by suit
at law or in equity: Provided, further, That the
reception of evidence for the application of a
writ of injunction may be delegated by the
Commission to any of its Labor Arbiters who
shall conduct such hearings in such places as
he may determine to be accessible to the
parties and their witnesses and shall submit
thereafter his recommendation to the
Commission. (As amended by Section 10,
Republic Act No. 6715, March 21, 1989).
Article 263 (g) When, in his opinion, there
exists a labor dispute causing or likely to cause
a strike or lockout in an industry indispensable
to the national interest, the Secretary of Labor
and Employment may assume jurisdiction over
the dispute and decide it or certify the same to
the Commission for compulsory arbitration.
Such assumption or certification shall have the
effect of automatically enjoining the intended
or impending strike or lockout as specified in
the assumption or certification order. If one
has already taken place at the time of
assumption or certification, all striking or
locked out employees shall immediately
return-to-work and the employer shall
immediately resume operations and readmit all
workers under the same terms and conditions
prevailing before the strike or lockout. The
Secretary of Labor and Employment or the
Commission may seek the assistance of law
enforcement agencies to ensure compliance
with this provision as well as with such orders
as he may issue to enforce the same
34
…For this purpose, the contending parties are
strictly enjoined to comply with such orders,
prohibitions and/or injunctions as are issued by
the Secretary of Labor and Employment or the
Commission, under pain of immediate
disciplinary action, including dismissal or loss
of employment status or payment by the
locking-out employer of backwages, damages
and other affirmative relief, even criminal
prosecution against either or both of them.
2. Injunction on the Collection of
Taxes (RA 8424)
Sarasola vs Trinidad
F: The complaint in this case was filed in the
Court of First Instance of Manila for the
purpose of having an injunction issue to
restrain the defendant, the Collector of
Internal Revenue, from the alleged illegal
collection of taxes in the amount of
P11,739.29. Appellants contend that "1. The
statute is a mere expression of the equity
rule and does not close the door of equity
where there is no adequate remedy at law;
2. The equitable jurisdiction to issue writs
where the legal remedy is inadequate is
crystallized and cannot be abbreviated by
local statute: 3. The legal remedy is grossly
inadequate and the injury irreparable and
the writ should issue." On the other hand,
appellees purport that the court had no
jurisdiction of the subject-matter of the
action because of the provisions of section
1578 of the Administrative Code of 1917;
and (2) that the facts stated in the complaint
did not entitle the plaintiff to the relief
demanded
David vs Judge Ramos and Castro
I: WON the legal provision in the
Administrative Code of 1917 prohibiting the
courts from granting an injunction to restrain
the collection of internal revenue taxes
constitutional
R: YES. Such prohibition is based on sound
public policy and the distinct attirbutes of the
sovereign power of taxation. Besides such
reason, injunction still would not lie against
collection of taxes since, the taxpayer has
adequate remedy provided by law against an
invalid tax law. An exceptional circumstance
may serve to take cases out of the general
rule comes under the head of irreparable
injury, but if the ground alleged is alone that
the tax was illegal, this is not sufficient for
the maintenance of an injunction
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1) Public policy decrees that, since upon
the prompt collection of revenue
there depends the very existence of
government itself, whatever
determination shall be arrived at by
the Legislature should not be
interfered with, unless there be a
clear violation of some constitutional
inhibition.
2) Where, as in the Philippines, the
taxpayer is permitted to pay the
amount demanded of him under
protest and then maintain an action
at law to recover back the whole
amount paid or so much of it as was
illegally exacted, this is ordinarily
regarded as an adequate remedy. .
It is a wise and reasonable
precaution for the security of the
government. No government could
exist that permitted its collection to
be delayed by every litigious man or
every embarrassed man, to whom
delay was more important than the
payment of costs." The remedy of a
suit to recover back the tax after it is
paid, is provided by statute, and a
suit to restrain its collection is
forbidden. The remedy so given is
exclusive, and no other remedy can
be substituted for it.
3) Even though enforcing a tax may
compel the suspension of business
because it is more than the person
taxed can afford to pay, this is not
what is known in the law as
irreparable injury.
F: Maria B. Castro filed in the Court of First
Instance of Manila, a complaint dated
October 18, 1950, against Saturnino
David, petitioner herein, in his capacity as
Collector of Internal Revenue, alleging
among other things, that she had been
acquitted in a criminal case for non-
payment of the war profits tax for
insufficiency of evidence; that
notwithstanding said acquittal, the
Collector of Internal Revenue announced
on October 18, 1950, that the properties of
Maria B. Castro would be sold at public
auction on November 22 and 27, 1950, to
satisfy the war profits tax assessed against
her; that this sale is an abuse of authority
on the part of the Collector and would
35
 cause irreparable injury to her; that
Republic Act No. 55, known as the War
Profits Tax Law is unconstitutional. She
prayed that a preliminary injunction be
issued enjoining the Collector of Internal
Revenue from proceeding with the sale and
that afterward the injunction be made
permanent.
I: WON a writ of PI is proper to restrain
CIR from selling her properties on
account of her nonpayment of the war
profits tax
R: No. no suit for enjoining the collection
of a tax, disputed or undisputed, can be
brought, the remedy being to pay the tax
first, formerly under protest and now
without need of protest, file the claim with
the Collector, and if he denies it, bring an
action for recovery against him.
1) With regards to her defense that the
remedy by distraint and levy will cause
irreparable injury to the respondent for it
may paralyze her business: 'The force of
the third contention must rest in the fact
that enforcing the tax may in some cases
compel the suspension of business,
because it is more than the person taxed
can afford to pay. But if this consideration
is sufficient to justify the transfer of a
controversy from a court of law to a court
of equity, then every controversy where
money is demanded may be made the
subject of equitable cognizance. To enforce
against a dealer a promissory note may in
some cases as effectually break up his
business as to collect from him a tax of
equal amount. This is not what is known to
the law as irreparable injury. The courts
have never recognized the consequences
of the mere enforcement of a money
demand as falling within that category.'
Youngblood vs. Sexton [1875], 32 Mich.,
406. It is of the utmost importance,' said
the Supreme Court of the United States,
'. . . that the modes adopted to enforce the
taxes levied should be interfered with as
little as possible. Any delay in the
proceedings of the officers, upon whom the
duty is devolved of collecting the taxes,
may derange the operations of
government, and thereby cause serious
detriment to the public.'Dows v. Chicago
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2) Nor is such a provision of law invalid
as curtailing the jurisdiction of the courts
of the Philippine Islands as fixed by
section 9 of the Organic Act: (a) because
jurisdiction was never conferred upon
Philippine courts to enjoin the collection
of taxes imposed by the Philippine
Commission; and (b) because, in the
present case, another adequate remedy
has been provided by payment and
protest
3) All the allegations of the respondents
to the effect that the dismissal of the
criminal case is res judicata or a bar to
the collection by distraint and levy; and
that Republic Act No. 55, known as the
War Profits Tax Law, is unconstitutional,
should be set forth as part of the cause
of action in the complaint that may be
filed against the Collector of Internal
Revenue for recovery of the tax after its
payment, but not in an action for
prohibition or injunction.
3. Infrastructure Projects
PD 181 Section 1 "[n]o court in the
Philippines shall have jurisdiction to issue
any restraining order, preliminary
injunction . . . in any case, dispute, or
controversy involving . . . any public utility
operated by the government, including
among others public utilities for the transport
of the goods or commodities . . . to prohibit
any person or persons . . . from proceeding
with, or continuing the execution or
implementation of any such project, or the
operation of such public utility, or pursuing
any lawful activity necessary for such
execution, implementation or operation."
(this statute was superseded by the
succeeding statute)
RA 8975 SECTION 3.Prohibition on the
Issuance of Temporary Restraining
Orders, Preliminary Injunctions and
Preliminary Mandatory Injunctions. —
No court, except the Supreme Court,
shall issue any temporary restraining
order, preliminary injunction or
preliminary mandatory injunction
against the government, or any of its
subdivisions, officials or any person or
entity, whether public or private,
acting under the government's
36
 direction, to restrain, prohibit or PD 385 SECTION 2.No restraining
compel the following acts: order, temporary or permanent
injunction shall be issued by the court
(a)Acquisition, clearance and against any government financial
development of the right-of-way institution in any action taken by such
and/or site or location of any national institution in compliance with the
government project; mandatory foreclosure provided in
Section 1 hereof, whether such
restraining order, temporary or
(b)Bidding or awarding of
permanent injunction is sought by the
contract/project of the national
borrower(s) or any third party or
government as defined under Section
parties, EXCEPT after due hearing in
2 hereof; aCTADI
which it is established by the borrower
and admitted by the government
(c)Commencement, prosecution, financial institution concerned that
execution, implementation, operation twenty percent (20%) of the
of any such contract or project; outstanding arrearages has been paid
after the filing of foreclosure
(d)Termination or rescission of any proceedings.
such contract/project; and
In case a restraining order or
(e)The undertaking or authorization of injunction is issued, the borrower shall
any other lawful activity necessary for nevertheless be legally obligated to
such contract/project. liquidate the remaining balance of the
arrearages, paying ten percent (10%)
This prohibition shall apply in all cases, of the arrearages outstanding as of
disputes or controversies instituted by the time of foreclosure, plus interest
a private party, including but not and other charges, on every
limited to cases filed by bidders or succeeding thirtieth (30th) day after
those claiming to have rights through the issuance of such restraining order
such bidders involving such or injunction until the entire
contract/project. This prohibition shall arrearages have been liquidated.
not apply when the matter is of These shall be in addition to the
extreme urgency involving a payment of amortizations currently
constitutional issue, such that unless a maturing. The restraining order or
temporary restraining order is issued, injunction shall automatically be
grave injustice and irreparable injury dissolved should the borrower fail to
will arise. The applicant shall file a make any of the above-mentioned
bond, in an amount to be fixed by the payments on due dates, and no
court, which bond shall accrue in favor restraining order or injunction shall be
of the government if the court should issued thereafter. This shall be
finally decide that the applicant was without prejudice to the exercise by
not entitled to the relief sought. the government financial institutions
acCDSH of such rights and/or remedies
available to them under their
respective charters and their
If after due hearing the court finds that respective contracts with their
the award of the contract is null and debtors, nor should this provision be
void, the court , if appropriate under the construed as restricting the
circumstances, award the contract to the government financial institutions
qualified and winning bidder or order a concerned from approving, solely at its
rebidding of the same, without prejudice own discretion, any restructuring,
to any liability that the guilty party may recapitalization, or any other
incur under existing laws. arrangement that would place the
entire account on a current basis,
4. To prevent foreclosure of REM of provided, however, that at least
Gov’t Financial Institutions twenty percent (20%) of the

37
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 arrearages outstanding at the time of
the foreclosure is paid.
All restraining orders and injunctions
existing as of the date of this Decree
on foreclosure proceedings filed by
said government financial institutions
shall be considered lifted unless finally
resolved by the court within sixty (60)
days from date hereof.
5. To prevent Anti – Money
Laundering Council from issuing/
implementing freezing orders
RA 9160 SECTION 10.Authority to
Freeze. — Upon determination that
probable cause exists that any deposit
or similar account is in any way
related to an unlawful activity, the
AMLC may issue a freeze order, which
shall be effective immediately, on the
account for a period not exceeding
fifteen (15) days. Notice to the
depositor that his account has been
frozen shall be issued simultaneously
with the issuance of the freeze order.
The depositor shall have seventy-two
(72) hours upon receipt of the notice
to explain why the freeze order should
be lifted. The AMLC has seventy-two
(72) hours to dispose of the
depositor's explanation. If it fails to
act within seventy-two (72) hours
from receipt of the depositor's
explanation, the freeze order shall
automatically be dissolved. The fifteen
(15)-day freeze order of the AMLC
may be extended upon order of the
court, provided that the fifteen (15)-
day period shall be tolled pending the
court's decision to extend the period.
No court shall issue a temporary
restraining order or writ of injunction
against any freeze order issued by the
AMLC EXCEPT the Court of Appeals or
the Supreme Court.
6. To restrain PARC DAR DA DENR
and DOJ in implementing
agrarian reform program
RA 6675 SECTION 55.No Restraining Order or
Preliminary Injunction. — No court in the
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Philippines shall have jurisdiction to issue any
restraining order or writ of preliminary
injunction against the PARC or any of its duly
authorized or designated agencies in any case,
dispute or controversy arising from,
necessary to, or in connection with the
application, implementation, enforcement, or
interpretation of this Act and other pertinent
laws on agrarian reform.
SECTION 68.Immunity of Government
Agencies from Undue Interference. — No
injunction, restraining order, prohibition or
mandamus shall be issued by the lower courts
against the Department of Agrarian Reform
(DAR), the Department of Agriculture (DA), the
Department of Environment and Natural
Resources (DENR), and the Department of
Justice (DOJ) in their implementation of the
program.
(EXC SC?)
7. To restrain transfer or sale of
Asset Privitization Trust
RA7661 SECTION 3.The same Act is
hereby amended by inserting between
Sections 2 and 3 thereof a new section
to read as follows:
Sec. 2-A.No court or administrative
agency in the Philippines shall issue
any restraining order or writ of
preliminary injunction against the
Asset Privatization Trust or the
Committee on Privatization and any of
its duly designated disposition entities
in connection with the acquisition, sale
or disposition of assets pursuant to
Proclamation No. 50, nor shall order or
writ be issued against the purchaser of
assets sold or disposed by the Trust,
the Committee, or the disposition
entities to prevent such purchaser
from taking possession of such assets.
cd
In the event that any court or
administrative agency issues a
permanent restraining order or writ of
injunction against the Trust, the
Committee, and the disposition
entities or the purchaser, as the case
may be, secure the immediate lifting
of such order or writ by filing with the
judge or clerk of court a bond in an
amount equal to that of the bond
38
 posted by the applicant of the order or
writ.
To restrain government projects for
the exploitation and development of
natural resources
PD 605 SECTION 1.No court of the Philippines
shall have jurisdiction to issue any restraining
order, preliminary injunction or preliminary
mandatory injunction in any case involving or
growing out of the issuance, approval or
disapproval, revocation or suspension of, or
any action whatsoever by the proper
administrative official or body on concessions,
licenses, permits, patents, or public grants of
any kind in connection with the disposition,
exploitation, utilization, exploration and/or
development of the natural resources of the
Philippines
Exception: When it does not put in at
issue the legitimacy of plaintiff’s claim
over the legislative franchises or
mining lease contracts
DC Crystal Inc vs Judge Laya and Lua
F: The restraining order issued in a
Civil Case was commenced Corazon Y.
Lua against Desamparado C. Crystal
and D.C. Crystal, Inc. when, as a result
of defendants' bulldozing, Lua's
employees were denied access to her
operations area, and her machines — 3
payloaders, 8 dump trucks, her
crusher machine — and trucks
belonging to Geo-Transport, Inc. (then
hauling crushed rock purchased from
Lua), were isolated and rendered
immobile and had since effectively
prevented Lua from retrieving her
trucks and from conducting normal
business operations in the area,
thereby causing her continuing
damages. DC Crystal contends that
since it holds two placer mining lease
contracts from the Government, no
Court has jurisdiction to issue a
restraining order curtailing its mining
activities, in accordance with P.D. No.
605 and P.D. No. 1281 and therefore
the writ must be dissolved.
TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
I: WON writ of PI against DC Crystal
should be dissolved in accordance
with PD 605
R: YES. PD 605 is not applicable. What
is restrained by the injunction issued
by the Trial Court are not defendants'
mining activities but their invasion of
plaintiffs' operations area and their
infringement of her rights in respect
thereof.
Lua's complaint is founded on the theory that
the defendants (1) had unlawfully intruded into
the area in which by authority of the Bureau of
Mines and the Bureau of Forestry, she was
carrying on her quarrying business, (2) had
destroyed the road she had built thereon, (3)
had thoroughly immobilized her operations and
effectively denied her possession of her
machines, and (4) had thereby caused her and
continue to cause her damages. The complaint
does not put at issue the legitimacy of the
defendants' claim of being holders of placer
mining lease contracts; what it asserts is that
defendants had taken the law into their own
hands and had violated plaintiff s rights.
WHEN A WRIT OF PRELIMINARY
INJUNCTION IS NOT PROPER
1. To restrain the sale of conjugal
properties for usband to give
support. Such is a lien on the
property. The remedy is to attach
these properties and not to
restrain the sale.
2. To restrain the mayor from
assuming office
3. To restrain consummated acts
4. To restrain ministerial acts
because this is tanatamount to
prejudging the case or trying the
case on its merits
5. To restrain an executed
judgment. The proper remedy is
to seek releif from judgment
Meneses vs Judge Dinglasan
F: The case here on certiorari brought by
plaintiff claiming ownership over the
subject lotwith a petition for a writ of
injunction, to restrain the respondent
judge "from commanding the sheriff of
Manila to carry out its order dated
January 27, 1948, as well as to order the
stay of execution or rather to revoke its
order dated February 7, 1948, and to
39
 allow the parties to terminate the
hearing of the case pending before it,"
and also "to restrain the sheriff of Manila
to carry out the order in his hand
commanding the petitioners to vacate
the barong-barong and lot in question."
I: WON the writ of PI is warranted
R: No. There is no longer anything that
may be restrained. The respondent judge
has already ordered execution of the
judgment and the sheriff of Manila has
already carried out the order and
demolished the barong-barong. The
petition for the writ of certiorari is
dismissed and the petition for the writ of
injunction is denied
Ambrosio vs Salvador
"the decisions, orders and awards
entered by the Workmen's Compensation
Commission are appealable to the
Supreme Court. . . . (T)he Court of First
Instance is not empowered or clothed
with jurisdiction to review or modify,
much less, annul an award or order of
execution issued by the Workmen's
Compensation Commission."
Ramos vs CA
F: Petitioners alleged that the GSIS has
no legal right to sell COMBANK inasmuch
as both the GSIS and COMBANK failed to
comply with their obligations to the
petitioners as embodied in an Agreement
of May 9, 1980 executed by the
petitioners and the IUCF investors group
where petitioners sold to the latter
187,649 shares in the Overseas Bank of
Manila under the terms and conditions
provided therein. 5 In sum, the
petitioners maintained that they have
considerable proprietary interest in
COMBANK and, accordingly, their
consent must be obtained before
COMBANK can be legally sold to
interested purchasers. Respondents on
the other hand contend that the act
sought to be enjoined, i.e., the sale of
COMBANK to the FNBB and the group of
Filipino investors, is already a docket and legal fees.
consummated act.
I: WON it was proper for CA to issue the
writ of PI against trial court to preventing
the sale by the GSIS of the COMBANK to
the First National Bank of Boston (FNBB)
and a group of investors
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R: The act sought to be enjoined in this case,
i.e., the sale of COMBANK to the FNBB and the
group of Filipino investors, is already a
consummated act. The established principle is
that when the events sought to be prevented
by injunction or prohibition have already
happened, nothing more could be enjoined or
prohibited. 30 Thus, the instant Petition is
moot and academic.
It is worthy to note though that if not for this
ground, the writ would have been properly
issued. The proposed sale or negotiation and
eventual consummation of said sale to the
prospective buyer (FNBB/Tordesillas) would be
unduly hampered, if the order and writ of
preliminary injunction issued by the
respondent court would be allowed to remain
in force in contravention of the state policy to
effect ' prompt disposition of . . . government
owned controlled corporation.
6. To restrain an act which an
action for damages would
compensate the injury caused
7. When it is issued against coequal
courts / agencies except to
execute such orders
Nocnoc vs Vera
F: Petitioner filed a death benefit claim for
his son's death, who died in an accident
while employed as conductor in private
respondent's transportation business. After
the period to controvert the claim had
expired, private respondent moved to
dismiss, alleging that the claim had already
been amicably settled upon payment of the
sum of P2,350 to petitioner. The chief
Referee denied the motion, and instead
awarded to petitioner the sum of P6,240,
but deducted therefrom the amount of
P2,330 which was deemed as advance or
partial payment on the claim. Private
respondent brought the issue on certiorari
to the Supreme Court, but the petition was
considered "not filed" for failure to pay
Instead of seeking reconsideration of the
Supreme Court's Resolution respondent
sued the Sheriff and the referee in
respondent Court of First Instance to
enjoin them from enforcing the award.
40
 I: WON the Court of First Instance, as a
court of general jurisdiction, can entertain
a case impugning the validity of the award
of the Workmen's Compensation Unit and,
in the process restrain the enforcement of
a writ of execution issued by its Chief
Referee
R: NO. Judge Vera’s assertion of
jurisdiction over private respondent
Manarang's complaint for injunction —
arising from proceedings before the
Workmen's Compensation Unit, on the
ground that this court "is one of general
jurisdiction" — is contrary to his court's
admitted lack of jurisdiction — whether
original or appellate — over Workmen's
Compensation cases. For, in reviewing the
alleged nullity of the award and enjoining
its execution, respondent Judge assumed
jurisdiction over a matter which could have
been elevated from the Workmen's
Compensation Unit to the Workmen's
Compensation Commission, and thereafter,
on appeal, to this Court. This, he cannot
do, for ". . . the decisions, orders and
awards entered by the Workmen's
Compensation Commission are appealable
to the Supreme Court. . . . (T)he Court of
First Instance is not empowered or clothed
with jurisdiction to review or modify, much
less, annul an award or order of execution
issued by the Workmen's Compensation
Commission."
Respondent Judge lost sight of the fact
that the phrase "court of general
jurisdiction" is merely descriptive of
Courts of First Instance (CFI) which have
original jurisdiction over civil, criminal
and other cases in contra-distinction to
courts of special, limited jurisdiction,
e.g., the Court of Agrarian Relations
(CAR), the Court of Tax Appeals (CTA),
the Circuit Criminal Courts (CCC), the
Juvenile and Domestic Relations Courts
(JDRC) and so forth.
8. To prevent the execution of
contracts for public utility
GLS Transport Corp vs CA
F: Petitioner sought to disqualify 2000
TRANSPORT from the award of the
concession contract on coupon taxi service
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with MIAA for allegedly submitting its
Articles of Incorporation with falsified
signature and income tax returns falsely
attested. Further, 2000 TRANSPORT is a
dummy corporation for two Korean
nationals. Petitioner asserted that the
concession contract should be executed in
its favor.
Petitioner prayed for a permanent
injunction to bar the award of contract to
2000 TRANSPORT and NISSAN and to
nullify the entire bidding process.
I: WON the writ of injunction is proper to
bar the award of the contract to 2000
TRANSPORT and NISSAN
R: NO. PD 1818 (which was the applicable
statute at that time) was clearly applicable
to divest the trial court of authority to
issue the injunctive writ against the
execution of the concession contracts with
2000 TRANSPORT and NISSAN. Their
respective contracts involved public utility
which were within the protective mantle of
the decree. Moreover, as shown above, the
issues raised in the complaint in Civil Case
No. 95-72586 did not involve matters
outside the technical competence of MIAA
or veritable questions of law. The
contentions of petitioner G & S were
precisely directed towards urging the trial
court to substitute its judgment for that of
MIAA in determining to which bidders the
concession contracts should be awarded.
Hence, the appellate court correctly
nullified the injunctive writ on the ground
that it violated
While the rule is that courts may set aside
or enjoin the award of a contract made by
a government entity, this may be done
only upon a clear showing of grave abuse
of discretion or only in cases involving
issues definitely outside the exercise of
discretion in technical cases and questions
of law. 30 We however find nothing of this
sort in the allegations of petitioner G & S in
the Civil Case. MIAA was merely relying
upon the Terms of Reference for Coupon
Taxi Service Concession when it pre-
qualified 2000 TRANSPORT and proceeded
with the bidding, hence, MIAA could not
have abused its discretion in doing so. On
41
 the contrary, it would have been grave
abuse of discretion if MIAA were to
suddenly abandon the Terms of Reference
if only to accommodate the objections of G
& S.
9. Injunction was not prayed for in the
complaint
Chief of Staff of the AFP vs Judge
Guadiz Jr.
F: In a civil case filed by Diosamer
Development Corporation against the
petitioners where the principal relief sought
was for a road-right-of-way through Fort
Magsaysay Military Reservation so that
respondent corporation, its laborers and
equipments could pass through the
"Bignay" and "Sumandig-Alulag" roads for
its logging operations or allied activities
even if said roads may in some points,
traverse the reservation, respondent Judge
issued ex-parte both a temporary
restraining order enjoining petitioners from
preventing respondent corporation from
passing through aforesaid roads as prayed
for, and a clarificatory order allowing
respondent corporation to cut and remove
logs in its licensed area despite conflicting
claims of petitioners and private
respondent on said area.
I: WON it was proper for Judge Guadiz to
issue a TRO when all that Diosamer asked
was a road-right – of – way
R: NO. The respondent Judge acted with
grave abuse of discretion amounting to
lack of jurisdiction in clarifying the
restraining order in the sense that the
plaintiff, Diosamer Development
Corporation, was allowed to cut and
remove logs in its licensed area
"notwithstanding the respective conflicting
claims of the defendants and the plaintiff
that said area is inside or outside the Fort
Magsaysay Military reservation as the case
may be". As a result, the Diosamer
Development Corporation was allegedly
able to cut timber within portions of the
Fort Magsaysay Military Reservation. The
clarificatory order went beyond what was
prayed for in the complaint. All that the
plaintiff was asking was to be allowed to
pass through the areas of Fort Magsaysay
Military Reservation traversed by the
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"Bignay" and "Sumandig-Alulag" roads.
Indeed the clarificatory order has
prejudged the conflict between the
Diosamer Development Corporation and
the petitioners on whether or not the
licensed area of the said corporation
included portions of the Fort Magsaysay
Military Reservation. This amounted to a
decision of the case on the merits in favor
of Diosamer Development Corporation.
Sound discretion is no license to frustrate
the law by defeating its objectives.
10. To restrain criminal prosecution
Brocka vs Enrile
The primary issue here is the
legality of enjoining the criminal
prosecution of a case, since the two
other issues raised by Brocka, et al.
are matters of defense against the
sedition charge.
We rule in favor of Brocka, et
al. and enjoin their criminal
prosecution for the second offense of
inciting to sedition.
Indeed, the general rule is that
criminal prosecution may not be
restrained or stayed by injunction,
preliminary or final.
There are however exceptions,
among which are:
a. To afford adequate protection to the
constitutional rights of the accused "
b. When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of actions "
c. When there is a pre-judicial question
which is sub judice
d. When the acts of the officer are
without or in excess of authority
e. Where the prosecution is under an
invalid law, ordinance or regulation
f. When double jeopardy is clearly
apparent "
g. Where the court has no jurisdiction
over the offense
h. Where it is a case of persecution
rather than prosecution
i. Where the charges are manifestly
false and motivated by the lust for
vengeance, and
j. When there is clearly no prima facie
case against the accused and a motion
to quash on that ground has been
denied.
In the petition before us,
42
 Brocka, et al. have cited the
circumstances to show that the
criminal proceedings had become a
case of persecution, having been
undertaken by state officials in bad
faith.
Allado vs Diokno
FACTS: Two lawyers, assistants of
Salonga were charged of murder for
the alleged kidnapping of a German.
Salonga asked to stop the criminal
prosecution.
HELD: The facts of this case are
fatefully distressing as they showcase
the seeming immensity of government
power which when unchecked becomes
tyrannical and oppressive. The case
before us, if uncurbed, can be
illustrative of a dismal trend. Needless
injury of the sort inflicted by
government agents is not reflective of
responsible government. Judges and
law enforcers are not, by reason of
their high and prestigious office,
relieved of the common obligation to
avoid deliberately inflicting
unnecessary injury.
Perhaps, this case would not have
reached this Court if petitioners were
ordinary people submissive to the
dictates of government. They would
have been illegally arrested and
detained without bail. Then we would
not have the opportunity to rectify the
injustice. Fortunately, the victims of
injustice are lawyers who are vigilant
of their rights, who fight for their
liberty and freedom not otherwise
available to those who cover in fear
and subjection.
11. To compel marital cohabitation
TAKE NOTE!
 Suspension order of a writ of
possession is tantamount to a
writ of preliminary injunction
PNB vs Adil
TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
F: On April 19, 1979, petitioner filed an ex-
parte petition for issuance of a writ of
possession before the Court of First
Instance of Iloilo, Branch II, which was
granted by an order dated April 20, 1979.
Upon issuance of the writ, the Deputy
Sheriff served the same upon private
respondents, but the latter requested for a
grace period of seven (7) days to vacate
the premises in question to which the
Sheriff agreed. On May 8, 1979, the Sheriff
returned to the premises in question and
finding that private respondents are still
staying in the premises and had not
complied with the writ of possession,
immediately ordered their ejectment. At
around one o'clock in the afternoon, before
the ejectment was completed, the Sheriff
received an order dated May 8, 1979,
issued motu proprio by respondent judge,
suspending the implementation of the writ
of possession for "humanitarian reasons"
for a period of fifteen (15) days.
I: WON respondent judge gravely abused
his discretion, amounting to lack of
jurisdiction, in issuing the suspension order
which, in effect, enjoined the enforcement
of the writ of possession.
R: YES. The suspension order was
tantamount to a writ of preliminary
injunction. Being such, it cannot be
considered validly issued since the ground
of “humanitarian reasons” are not one of
the grounds for the issuance of such writ.
The right of private respondents to
injunctive order is, at least, doubtful, and it
is a settled rule that to be entitled to the
injunction, the applicant's right or title
must be clear and unquestioned. In the
instant case, the ground relied upon by
private respondents is not indubitable,
while the foreclosure proceeding has in its
favor the presumption of regularity.
The suspension order has a far-
reaching effect. It enabled private
respondents to withhold the possession
from petitioner and file the complaint
where an injunction was sought. Had not
respondent judge issued such order,
petitioner could have already taken
possession of the property, thereby
acquiring an absolute ownership over the
property, and injunction could no longer
have been issued. A prohibitory injunction
cannot be issued when the act sought to
43
 be enjoined has already been committed.
Neither can a mandatory injunction issue,
for it is a well-settled rule that injunction
will not lie to take the property out of
control of the party in possession.
 The court cannot deny outright
the application for an injunctive
releif for this would be
tantamount to denial of due
process
Bataclan vs CA
F: Impugned in this appeal by certiorari is
the decision of respondent Court of Appeals,
which reversed the order of the Regional
Trial Court of Tagaytay denying the prayer of
herein tenant private respondents for a writ
of preliminary injunction in their complaint
for damages filed against herein landowner
petitioners in order to restrain them from
destroying their crops merely on the basis of
the report of the Provincial Fiscal who made
no ruling on the tenancy rights of the
respondents but merely classified subject
land as sugarcane lands.
their answer, petitioners merely sought to
dismiss the complaint and, by way of
counterclaim, to recover damages. The
trial court, therefore, gravely abused its
discretion in ordering the ejectment of
herein private respondents. In effect, it
disposed of the main case without the
requisite hearing on the evidence to be
presented. The denial order of January 13,
1986 is, for all intents and purposes, an
adjudication on the merits of the case, in
gross violation of the constitutional
mandate that a party shall have the right
to be heard and to present evidence. This
fact alone would suffice to warrant a denial
of the instant petition.
 Hearing of the merits of the
case in an application for an
injunctive relief is unncesary.
What is required is merely a
sampling of evidences. The
quantum of proof required in
the application for a writ of
preliminary injunction is a
PRIMA FACIE existence of case
warranting such issuance

Valley Trading Co. Inc vs CFI of

I: WON the issuance of a writ of preliminary
Isabela
injunction is proper under the factual
situation obtaining in this case
F: Valley Trading Co., Inc. filed a complaint
in the court a quo seeking a declaration of
R: YES. A writ of preliminary injunction, as
the supposed nullity a tax ordinance which
an ancillary or preventive remedy, may only
imposed a graduated tax on retailers,
be resorted to by a litigant to protect or
independent wholesalers and distributors;
preserve his rights or interests and for no
and for the refund of P23,202.12, plus
other purpose during the pendency of the
interest of 14% per annum thereon, which
principal action. In the issuance thereof, the
petitioner had paid pursuant to said
courts are given sufficient discretion to
ordinance. Petitioner likewise prayed for
determine the necessity for the grant of the
the issuance of a writ of preliminary
relief prayed for as it affects the respective
prohibitory injunction to enjoin the
rights of the parties, with the caveat that
collection of said tax. the court issued an
extreme caution be observed in the exercise
order terminating the pre-trial and reset
of such discretion. Quintessentially, it is with
the hearing on the merits for failure of the
an equal degree of care and caution that
parties to arrive at an amicable settlement.
courts ought to proceed in the denial of the
In the same order, the trial court also
writ. It should not just summarily issue an
denied the prayer for a writ of preliminary
order of denial without an adequate hearing
injunction on the ground that "the
and judicious evaluation of the merits of the
collection of taxes cannot be enjoined". At
application. A perfunctory and improvident
the center of this controversy is the
action in this regard would be a denial of
submission of the petitioner that a hearing
procedural due process and could result in
on the merits is necessary before a motion
irreparable prejudice to a party.
for a writ of preliminary injunction may be
denied, anchoring its claim on Sections 6
It is patent that herein petitioners did not and 7 of Rule 58 of ROC.
intend to forthwith oust private
respondents from the contested lot. In

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 I: WON a hearing on the merits is
necessary in the denial of a motion for a
writ of PI
R: NO. If the ground is the insufficiency of
the complaint, the same is apparent from
the complaint itself and preliminary
injunction may be refused outright, with or
without notice to the adverse party. In
fact, under section 6 of Rule 58, the court
may also refuse an injunction on other
grounds on the basis of affidavits which
may have been submitted by the parties in
connection with such application. In the
foregoing instances, a hearing is not
necessary. The reliance of the petitioner on
Section 7 of Rule 58 is misplaced. This
section merely specifies the actions that
the court may take on the application for
the writ if there is a hearing on the merits;
it does not declare that such hearing is
mandatory or a prerequisite therefor.
It would be different, of course, it there is
a prima facie showing on the face of the
motion and/or pleadings that the grant of
preliminary injunction may be proper, in
which case notice to the opposing party
would be necessary since the grant of such
writ on an ex parte proceeding is now
proscribed. A hearing should be conducted
since, under such circumstances, only in
case of extreme urgency will the writ issue
prior to a final hearing. Such requirement
for prior notice and hearing underscores
the necessity that a writ of preliminary
injunction is to be dispensed with
circumspection both sides should be heard
whenever possible. It does not follow,
however, that such a hearing is
indispensable where right at the outset the
court is reasonably convinced that the writ
will not lie. What was then discouraged,
and is now specifically prohibited, is the
issuance of the writ without notice and
hearing.
-----------------------------
---
Rule 59
Receivership
Receivership basically is for the protection and
preservation of a property subject of the case
while pending in court. Also when there is
danger that the property might be destroyed
or the fruits might be lost, you can ask for
receivership.
TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
Q:When do you file an action for receivership?
A: You File an action for receivership:
(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 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.
Here are some other examples for when to file
an action for receivership.
 Under Article 101 of the Family Code
Art. 101. If a spouse without
just cause abandons the other
or fails to comply with his or
her obligations to the family,
the aggrieved spouse may
petition the court for
receivership, for judicial
separation of property or for
authority to be the sole
administrator of the absolute
community, subject to such
precautionary conditions as the
court may impose.
45
  Also court may appoint a
receiver under Section 39 of
Rule 41 of the Rules of Court
Section 41. Appointment of
receiver — The court may
appoint a receiver of the
property of the judgment
obligor; and it may also forbid
a transfer or other disposition
of, or any interference with,
the property of the judgment
obligor not exempt from
execution.
In receivership, it does not involve the
merits of the case. There can be
receivership after judgment has been
rendered.
You ask the court for the appointment of a
receiver to make sure the property is protected
and preserved
Then there is also an appointment of a receiver
over a property in custodia legis when it is
allowed under justifiable circumstances as
when reasonably necessary to secure and
protect the rights of the real owner. That was
the case of TUPAS vs. SUNDIAM, G.R. No. L-
27631. April 30, 1971,
F: 223 hectares of land was subjected to
probate by Gregorio Tupas, heir of the
deceased. Lumampao intervened saying 92
hectares of this land belonged to him as it was
already sold to him. The project partition was
already approved and the 92 ha parcel
claimed by Lumampao was assigned to
Gregorio Tupas. Lumampao filed an action for
recovery of the land. While proceedings were
on going, Tupas sold this lot to Dolar after
being given an order of the probate court that
gave them authority to sell the parcels of land.
Later, the CA acquired rendered judgment
declaring Lumampao the owner of said parcels
of land. Pending decision on his motion to set
aside such orders of the probate court,
Lumampao filed with the probate court a
petition for the appointment of a receiver over
the two parcels of land conveyed and
adjudicated to him. Such was granted. Tupas
and Dolar assailed such order saying that this
remedy will not lie where the property involved
is already in custody of law, such as that in the
hands of an executor or administrator.
I: WON appointment of a receiver is proper
R: YES. The lands in dispute were not under
the jurisdiction of the probate court so as to
clothe it with authority to grant an order
authorizing the sale of such lands. Therefore it
is not in custodia legis anymore. The said two
parcels of real estate were, by virtue of a final
and executory judgment, adjudicated in favor
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of Lumampao. Consequently, they can no
longer be said to form part of the testate
estate of the late Generoso Tupas, Sr. over
which the probate court can validly exercise
jurisdiction in connection with the distribution
and liquidation of the said estate.
Principle: “The principal object of the ancillary
relief of receivership is to secure and preserve
the property or thing in controversy pending
litigation in order that, as far as practicable, a
judicial tribunal, in aid of its jurisdiction, may
be able to effectively bestow to the parties
litigant the rights to which they are entitled, or
exact from them the obligations to which they
are subject, under the law. Ordinarily,
therefore, this remedy will not lie where the
property involved is already in custody of law,
such as that in the hands of an executor or
administrator. In these cases, the practical and
equitable purposes to be accomplished under a
receivership are then virtually available.”
And we also do this guys in an action for
rehabilitation case, it is not just an ordinary
civil action. In rehabilitation, a corporation is
having financial problems. While the case is
still being heard by the court, a party may file
a receivership just to make sure that the
properties will be protected.
Now the question here guys, who will be
appointed as a receiver?
 The receiver is
1. indifferent person,
2. neutral between the parties
3. not a party to the case
4. who is not interested at all to the
property subject of the case
Q: So the question is, can a clerk of court be
appointed as a receiver?
A: Because some judges do not know about
this, they appoint their clerk of court as
receiver in the meantime to accept the rentals
of the property subject of the litigation where
there is question on who owns the property
being litigated. While it is earning, they are
afraid that the rentals might be expended by
the person in possession of the property they
could rather have the money or rentals be
deposited with the court through the clerk or
court by appointing the clerk of court as a
receiver. There is no question that the clerk of
court has no interest in the case or the
property subject of the case of receivership.
But the Supreme Court, in the case of ABRIGO,
vs. Hon. KAYANAN, G.R. No. L-28601. March
46
18, 1983, it says here guys that the clerk of
court should not be appointed as a receiver, as
he is already burdened with his official duties.
F: Abrigo’s heirs are asking for partition of an
estate sought the provisional remedy of
receivership before the court on the ground
that numerous squatters had invaded the
property to the plaintiffs' great damage and
prejudice. Court appointed the Acting Clerk of
Court as receiver. Heirs filed a motion to
discharge receiver and offered to post a bond
saying that such appointment was done with
grave abuse of discretion.
I: WON appointment of Acting Clerk of Court
as receiver was proper
R: NO. The reason for the appointment of the
receiver was the fact that the land had been
entered by numerous squatters. But a receiver
who is also burdened with his duties as Clerk
of Court cannot be in a better position than the
actual possessors in dealing with the squatters.
The appointed receiver does not acquire any
advantage from the owners and/or present
possessors, nor is he in a better position in
order to protect the respective interest of the
herein parties for he has to apply as are the
present possessors deprived of their
possession, for the same remedies and relief
normally afforded to an aggrieved property
owner, under our legal system.Citing Paranete
vs. Tan, 87 Phil. 678 (1950)"We hold that the
respondent judge has acted in excess of his
jurisdiction when he issued the order above
adverted to. That order, in effect, made the
clerk of court a sort of a receiver charged with
the duty of receiving the proceeds of sale and
the harvest of every year during the pendency
of the case with the disadvantage that the
clerk of court has not filed any bond to
guarantee the faithful discharge of his duties
as depositary;” The respondent judge should
at least have accepted the bond offered by the
petitioner.
So you take note, while the General rule is that
neither party in a litigation should be appointed
as a receiver without the consent of the other
because he is supposed to be impartial and
disinterested person, this does not however
allow the appointment of the clerk of court.
Alright, another point you should take note
also guys that the appointment of a receiver
cannot be done ex parte. So you have learned
earlier that the issuance of a writ of
preliminary attachment or a temporary
restraining order, that can be issued by the
court ex parte as long as the court has
acquired jurisdiction over the person of the
defendant. So, there must be simultaneous
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service of summons and the writ. It must
always be with hearing.
Q: Why should there be hearing guys?
A: Because there is still a determination of the
sufficiency of the petition that would justify the
issuance of the writ and that you have also to
consider the qualifications of the receiver who
may be nominated or appointed by the parties
or the applicant. There cannot be also any
action in the event of appointment of the
receiver, without leave of court. There is
always leave of court so as to notify the other
party.
Q: Now then, what are the requirements in
order that one may be entitled to receivership?
A: So just take note of Section 2, particularly
on the requirement of a bond. The bond here
will answer for damages.
 There are 2 bonds that will be posted.
1. By the applicant
2. By the receiver who is appointed
by the court
The bond of the applicant will answer for the
damages caused by the unlawful appointment
of a receiver.
In so far as the bond of the receiver, it will
answer for the liabilities for the
mismanagement that may have been
committed by the appointed receiver.
 What will then be the causes for the denial
of the application or the discharge of a
receiver?
1. No sufficient cause for the
appointment of a receiver which
much be determined from the
allegation of the petition itself
which must be verified.
2. The posting of the adverse of a
bond
3. The receiver’s bond is insufficient
Q: The moment when an order is issued for the
appointment of a receiver, what will then
happen?
A: There is the taking of oath by the receiver
after posting of a bond.
You take note of the general powers of a
receiver enumerated in Section 6, especially in
the MCQ as to the extent of the powers
because there may be some powers that will
not be included and you are asked “These are
all the powers of a receiver, except”.
47
 A receiver shall have the power
1. to bring and defend, in such
capacity, actions in his own name;
2. to take and keep possession of the
property in controversy;
reason or necessity placing the property under
receivership does not exist anymore, you can
always ask for termination of receivership.
In case of judgment is rendered, it will include
recovery of whatever liabilities the sureties
have under the bond posted for damages.

3. to receive rents; Rule 60

Replevin
4. to collect debts due to himself as So it could be a provisional remedy or in a
receiver or to the fund, property, main action. So it is basically recovery of
estate, person, or corporation of personal property which you have title with
which he is the receiver; writ of replevin. In this case I will give you it is
a rescission of contract with damages and
5. to compound for and compromise
application for writ of replevin. It is not
the same;
necessary that the main action will always be
for recovery of property or other cause of
6. to make transfers; to pay
action and here, the writ is basically a
outstanding debts;
preliminary remedy.
7. to divide the money and other *Judge gave us a copy of the complaint. She
property that shall remain among wants us to determine whether the writ of
the persons legally entitled to replevin should be granted or denied.
receive the same; and Here are the Facts of the case
Plaintiff is an owner of a motorcycle which he
8. Generally to do such acts purchased from a certain Tanny Jarligo,
respecting the property as the evidenced by a Deed of Absolute Sale but the
court may authorize. motorcycle was still in the name of the said
seller.
*However, funds in the hands of a receiver Defendant offered his services to the plaintiff
may be invested only by order of the court promising to change the tires, to repaint the
upon the written consent of all the parties body and have it replated/chromed. Thereafter
to the action. defendant demanded and received from
Receivership Attachment plaintiff certain amounts for payment of the
materials and his service. But after the lapse of
As to rentals, the Rentals are turned 8 months, defendant failed to comply with his
receiver has the over to the court. It obligations. Defendant was later made to sign
possession. is placed in custodia a written undertaking by the barangay captain
legis. but still failed to comply with his obligations.
Plaintiff in his affidavit also stated the actual
In so far as the demand for the delivery of value or the market value of the motorcycle.
some property, that is claimed under Answer:
receivership. Take note of the liabilities of So, like the example I gave to you. What was
persons who refuse or neglect to deliver the the subject here?
properties, they can be sued by the receiver. It was a motorcycle that was placed in the
 The receiver can have them, custody of the defendant for repair. However it
was not repaired. Neither was it returned.
1. Cite for contempt, and/or Then in this case you may ask for the recovery
of the property while the case is still ongoing.
2. Damages Plaintiff has complied with the requirements for
the issuance of the writ of replevin. In his
 When is receivership terminated? affidavit, he clearly stated that the subject
motorcycle was bought from a certain Tanny
1. Motu proprio, or Jarligo, evidenced by the Deed of Absolute
Sale. He also stated that defendant failed to
2. By motion of a party return the motorcycle despite the demand and
written undertaking signed by him. There was
In both instances, there is no more need to also a statement which plaintiff assured that
place the property under receivership, or the the motorcycle has not been distrained or

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TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
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. Finally, plaintiff provided
in his affidavit the market value of the
motorcycle.
Continuation of Discussion
*Judge referring to our answers in the Writ of
injunction assignment
*nilabaw tingog ni Paul na gi Deny daw
niya iya. Giro kaayu. :D
Denied because they built it already, they want
it removed. It will prejudge the case. There is
no irreparable injury existing at that time
that’s why it is denied.
As to Replevin topic
Judge calls a student,
Judge: What is replevin?
- To recover possession over a personal
property.
Judge: So recovery of possession of a
personal property. When do you file it?
When is it available?
- At the commencement of the action or at
any time before answer.
Judge: Can you file even before the final
judgment is rendered?
- No.
Judge: Why not?
-Because the rule says that at any time
before an answer.
Judge: So the moment an answer is filed,
you can no longer avail of the writ
of replevin. Once it is filed, what
would the court do? Should it
conduct a hearing before it can
issue a writ of replevin?
- The court can issue an order without
hearing.
Judge: No, my question is does the court
need to conduct hearing in order to
ascertain whether or not you
application for writ of replevin
should be granted?
-No. Hearing is not required.
Judge: What will then be the basis of for
the issuance of a writ of replevin?
- The basis would be the allegations in the
affidavit.
Judge: It should be based on the affidavit.
What must be alleged in the
affidavit?
(a) That the applicant is the owner
of the property claimed,
particularly describing it, or is
entitled to the possession thereof;
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(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.
Judge: For entitlement or possession,
should he be the owner of the property?
- Not necessarily. The rules say
that he is the owner or is
entitled to the property. He
need not be an owner to be
entitled to the property. It
could be he is entitled to the
possession or the usufructuary
rights over the property.
Example:
A car which is subject of recovery or delivery,
but the one asking for the delivery is no longer
the owner of the car as it was already sold to
the adverse party who is the defendant.
Q: What if the property has already been
mortgaged to another person? Is the unpaid
seller in that case still apply for a writ of
replevin?
Answer
-Yes he can apply for a writ of replevin. He is
entitled to the property. One of the remedies
of an unpaid seller is to file a foreclosure
proceeding. For him to foreclose the property,
possession of the property can be acquired by
filing a writ of replevin.
Q: Can a writ of replevin be issued over a car
which is subject of a car napping case? Okay
let’s have this case, you claim to be the owner
of a property. The property is however
49
registered in the name of another person who
is the defendant in this case. You now claim
that your car was car napped and was sold to
the defendant. The car is now under the
custody of the CIDG or PNG. So you sue both,
the one who name was registered and the PNG
because it was seized. Can you recover or have
that car, pending the criminal case, be
delivered to you?
Answer:
-under par. C of Section 6
(c) That the property has not been
xxxx xxxx xxxx
or otherwise placed under custodia legis, or if
so seized, that it is exempt from such seizure
or custody;
Q:Who has jurisdiction over the case involving
writs of replevin?
A: MTC- if the market value of the property,
not the bond posted, is 100,000 or less.
*What determines the jurisdiction is not the
value of the bond but the market value of the
property.
Q: What will the then be the duty of the sheriff
when he is ordered to take the personal
property for writ of replevin?
A: The sheriff would serve a copy of the writ of
replevin to the one in possession of the
property, then would seize it and put it under
its custody for 5 days before it is delivered to
the applicant.
Q: Why wait for 5 days?
A: The 5 days is for the defendant to decide or
to think which of the two options/alternatives
he will choose. These options are to post a
counter-bond which is double of the amount of
the value of the property stated in the affidavit
of the defendant or to object to the sufficiency
of the bond posted by the applicant.
Q: What would be the ground to challenge or
opposing the writ and demanding the return of
his property?
A: Maybe challenge by the insufficiency of the
bond.
Q: How about the allegations in the affidavit
are not sufficient to show cause of action?
A: He cannot oppose or challenge the issue on
ownership since such issue should be threshed
out in another proceeding.
Q: Are you saying this is different from the writ
of attachment on the question on the title you
may ask for the discharge of the attachment?
A: Yes.
Replevin Attachment
You cannot question You can question the
the ownership or title ownership or title of
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of the applicant since the applicant to
it would be a question discharge the writ of
on the merits of the attachment since it is
case. It would then one of the grounds
require a full blown provided under the
trial which is not rule and hearing is
required in the also necessary.
issuance of the writ
of replevin.
Q: How much is the counter-bond must the
adverse party put up to discharge the writ?
A: Same as the bond posted by the applicant
which is double the amount of the market
value of the property.
Q: What would then be the purpose of the
counter-bond posted by the adverse party?
A: It is to answer for the damages that the
applicant would be entitled in case that the
writ was properly issued or the applicant is
entitle to the property.
Q: If in the event the defendant would
question the sufficiency of the bond, can he
require the return of the property after posting
a counter-bond thereafter?
A: He cannot. The remedies given to the
adverse party are ALTERNATIVE remedies. Also
the reason why they are alternative remedies
is that when you post a counter-bond, it
presupposes that the bond posted by the
applicant was valid.
Q: If the defendant will not use any of the
options after 5 days, what will happen?
A: The Sheriff will deliver the properties to the
applicant.
Q: If you were a third person, not a party to
the case, and you claim that the property that
was possessed by the sheriff is not owned by
the adverse party what will then be your
remedy?
A: Make an affidavit of my title thereto, or
right to the possession thereof, stating the
grounds therefor, and serve the affidavit upon
the sheriff while the latter has possession of
the property and a copy thereof upon the
applicant.
Q: If you were the applicant, what must you
do after the receipt of the copy of the third
party claimant?
A: 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.
Q: Is that the same bond required if the
applicant is the government?
A: No. The Government under the rules are
exempt from the payment of a bond and in
case the sheriff is sued for damages as a result
50
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.
Q: What will happen if the plaintiff/applicant of
the writ of replevin does not post the required
bond as required in Section 7?
A: The sheriff is not bound to keep the
property and shall turn it over to the third
party claimant.
Q; The moment judgment is rendered, what
would then be the nature of the judgment?
A: The court shall render a 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.
Discussion after recitation
Writ of replevin is sometimes called the
delivery of personal property. The subject
ALWAYS of a writ of replevin is PERSONAL
property. Either it can be the recovery or the
delivery of the personal property. It can either
be a main action or a provisional remedy.
Examples would be banks in respect to
mortgages. You buy a car, since you cannot
afford to it you agreed to pay on installment.
You then use the car as a chattle mortgage to
guaranty the payment of your obligation to the
bank. While there is transfer of ownership in
those cases so that the buyer becomes the
new owner of the car, but take note you still
have the mortgage. In the event you don’t pay
then the bank being the unpaid seller has the
option to foreclose the mortgage and the
moment the bank decides to foreclose it, they
take back the possession of the car or they run
after the value of the car. Only two
alternatives, if they choose foreclosure they
take back the car and it is as good as fully
paid. But if they opt for the collection of sum of
money, there may be deficiency in the
judgment. Even if the car is sold at a public
auction and there is a deficiency, the balance
can still be recovered.
So in cases like these, they would apply for
writ of replevin as an alternative to the main
action. Take the nature of the action for the
issuance of a writ of replevin it can be in
personam or in rem. In rem because it is for
the recovery of a specific property and it can
be in personam because it also includes
recovery for damages.
Q: When is the application for writ of replevin
available?
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A: You have Section 1, at the commencement
of the action or at any time before answer.
Sometimes, court forgets about this. They still
have to find the property. They cannot serve
the writ after the answer has already been
filed. It must be served simultaneously with
the summons. The chance of hiding the car
after the service of summons, the writ of
replevin will not lie.
 Now what would then be the
requirements in order to apply for a
writ of replevin?
1. File a complaint and attach to
the complaint an affidavit.
2. Then you have the posting of a
bond.
Q: Before the court considers that, one it is
filed what should then the court do? Can a
court call for a hearing?
A: There is no need because, once you notify
the defendant he will hide the personal
property because it is mobile or it can be
transferred anytime. So only on the basis of
the allegations of the complaint or affidavit can
the court determine whether there is basis for
the issuance of a writ of replevin.
Q: What would you then state in your affidavit?
A: You must state that:
1. You are the owner of the property or
otherwise you are at least entitled to
the possession thereof.
- It must not be only in general
terms, you must specify it. For
example, you must state how
did you become the owner of
the property like you bought it
and you have proof of purchase
of the property.
- Because there is no more
hearing to convince the court
that you are indeed the owner
of the property or entitled to
the possession. An example of
someone who is entitled to the
property is a bank. A the banks
sold the car to B and as a
guaranty B executed a chattel
mortgage C. B did not pay.
Both can be sued, B and C. A
can demand the payment of
the loan or seek the recovery
of the possession of the car
because there is a mortgage.
So at least you are not the
51
 owner as a right or title, you
can be just a usufruct/have
usufructruary rights.
2. Then you state the wrongful possession
by the adverse party of the property.
- Such in the case where the
property was sold to someone
else when this person has no
right to sell the property under
mortgage.
3. 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.
- For example, there are some
circumstances where property
is placed in custodia legis like
in the case of a car napped
vehicle. Here is the plaintiff
suing, usually an insurance
company because they
subrogate the rights of the
original owner, PNG or the
police for the property to be
released. If in this situation
where the government is
involved in seizure, it is
presumed to be lawful. The
court must be very wary in
issuing a writ of replevin until
is ascertained or assured that
the property is indeed owned
by the plaintiff. There is no writ
issued because the court will
have to hear both parties as to
who has the right or full
ownership over the property.
- Another this is that you must
exhaust administrative
remedies. For example in an
alleged illegal logging which is
claimed by a third party. Here
is someone carrying illegal
lumber and apprehended by
the DENR. Then the owner of
the logs files an action for
replevin contending that he is
the owner and he has
documents to show that the
logs are not illegal. Should the
TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
court grant that action? No, in
fact it should be dismissed.
Why? There is no showing that
there was exhaustion of
administrative remedies. You
have to exhaust all available
remedies with the DENR before
you seek judicial relief.
- So as I have said, it would be
difficult to issue a writ of
replevin until you are certain
who is the real owner is in a
case where the property is
under custodia legis. Because
you have to determine who is
the real owner and whether the
property was lawfully
possessed.
*There was a question if this would be the rule
in every case of custodia legis. Judge said yes,
every time, because you need trial to
determine the lawfulness of the seizure. You
don’t hold trial in an action for writ of replevin.
- There was this one case where
a bus owned by Rough Riders
was seized by the Mayor in
Daan Bantayan because it was
involved in an accident killing a
pedestrian and the owner
wants to recover it and they
asked for a writ of replevin.
Judge did not grant it because
it was under custodia legis.
4. The Value of the property
- You have to check the value.
The value, under the new rules
is the market value of the
property. You must state that
because the court has no way
of knowing the market value.
That’s it relies on the
allegations in the affidavit.
That is also why the affidavit is
under oath because if the
applicant is not telling the
truth, he can be liable for
perjury.
- If you did not state the market
value, you should deny it
outright.
- The moment it is stated there,
it will be basis for the posting
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 of the bond which is double the
market value of the property.
Q: Now what will happen next if you complied
with the sworn affidavits and the bond?
A: The court will then issue the writ of
replevin.
Q: But which court?
A: Depending on the market value of the
property subject of the replevin. Where the
market value of the property is 100,000 or
less, it is the MTC. What determines then the
jurisdiction of the court is not the amount of
the bond, it is the amount of the market value
of the property.
You have here in Section 3, 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 and
surrendering it to the applicant after the lapse
of a certain period and when there is no
objections.
Q: What if it is being kept inside a building?
A: you can always break open the place. The
sheriff has that authority.
The sheriff would then be in possession of the
property for a period of 5 days.
Q: Why 5 days?
A: To give time to the defendant to decide
which action to take. There are two alternative
actions where once you choose an option, you
cannot avail of the other option.
 Two alternative options
1. Put up a counter-bond
equivalent to double the
market value of the property.
- This is to answer for the
damages suffered by the
plaintiff by the redelivery
of the property to the
defendant.
- This is what you call a
redelivery counter-bond.
2. He may question the
sufficiency of the bond.
- The question is limited
only to the sufficiency of
the bond, not on the
sufficiency on the
grounds for the issuance
of a writ of replevin.
TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
Otherwise, there would
be no end. you might
just have to wait for the
trial to end.
- Usually they would
question on the market
value if it duly alleged
because they sometimes
lessen the value to put
up a lesser bond.
Q: What if he questions the sufficiency of the
bond but it was duly establish that the market
value was correct, can he now put up a
counter-bond for the redelivery of the property
to the defendant?
A: Not anymore, you have already availed of
the first option.
Q: What if after 5 days, the defendant did not
take any of the options?
A: The sheriff will have to deliver the property
to the applicant.
Replevin Attachment
The property is The property is not
delivered to the delivered to the owner,
applicant. but it is placed under
the warehouse if there
is no space in the court
room.
Then we go to a property claimed by a third
person. In the example, A is the bank and a
car was sold to B under mortgage and B sold it
to C. C is now claiming the property. What
must he do?
A: He must:
1. Execute an affidavit asserting
his claim stating there the
reasons he has for claiming for
the property.
The applicant, upon service of the affidavit of
the third party must put up a bond.
Q: How much?
A: Not less than the value of the property. If
there is In case a disagreement as to such
value, the court shall determine the same
through a hearing. Failure of the applicant to
put up a bond will allow the sheriff to
surrender the property to the third party
claimant. The sheriff is not bound to keep the
property unless the applicant puts up a bond.
-----For next meeting, continuation of replevin
and special civil actions.
-----------------------------
---
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 RULE 61
Replevin Support Pendente Lite
(Continuation)
The claim for support is not only for civil
actions but also for criminal responsibility
Answer to the Compliant regarding the based on RA 9262 (VAWC) because that is a
motorcycle form of economic abuse.

So the cause of action is for the rescission of D. "Economic abuse" refers to

contract. In here there was an agreement and acts that make or attempt to
the defendant where the defendant agreed to make a woman financially
repair the motorcycle of the plaintiff. What dependent which includes, but
happened then was that there despite the is not limited to the following:
lapse of a period of time there was no repair
made and despite plaintiff demand for the 1. withdrawal of financial
reimbursement of the payments made, still support or preventing the
there was no repair. So plaintiff filed a case for victim from engaging in any
rescission and in the meantime asked for the legitimate profession,
return of the motorcycle. occupation, business or
activity, except in cases
Q: Does he have the basis for the recovery of wherein the other
the motorcycle? spouse/partner objects on
valid, serious and moral
A: If the motorcycle has never been subject to grounds as defined in Article 73
any violation of law, distrained or taken for any of the Family Code;
tax assessment, then he can recover. It would
have been different if there was an allegation 2. deprivation or threat of
that the property involved was subject of a deprivation of financial
crime, for example car napping. Once it is resources and the right to the
placed in cusotdia legis, then it cannot be use and enjoyment of the
subject to replevin. In that case, it has to be conjugal, community or
settled first who has the better right over the property owned in common;
property.
3. destroying household
Now then, when the courts rule on the property;
recovery of property in those cases like when
the court needs to ascertain first the ownership 4. controlling the victims' own
of the property for one to recover the property, money or properties or solely
the ruling will be on the ALTERNATIVE. The controlling the conjugal money
court may render judgment ordering the or properties.
defendant to return the property. In cases of
Replevin, the subject properties are personal
properties that may deteriorate or depreciate But this is different from RULE 61, Support
while it is still being heard. Pendent Lite. This is a provisional remedy
because while hearing your entitlement for
I had one case where a car was subject to a support you can ask for advance payment of
car napping case which was decided only after support. This is the provisional remedy while
6 years because it had to have a hearing to the main action is an action for support.
determine who the real owner of the car was.
The car was in bad shape. So the court usually Q: When do you file then this support pendent
renders a judgment in the alternative by lite?
stating the value of the car at the time of filing A: Upon filing or commencement of the action
to be reimbursed to the owner. prior before judgment is rendered. Because of
the urgency of the remedy is the urgency for
your basic needs or your child’s basic needs.

Section 1.Application. — At the

commencement of the proper
action or proceeding, or at any

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 time prior to the judgment or
final order, a verified
application for support
pendente lite may be filed by
any party stating the grounds
for the claim and the financial
conditions of both parties, and
accompanied by affidavits,
depositions or other authentic
documents in support thereof.
Q: Now how is this done?
A: By alleging it in your compliant. In civil
actions for support you have to state what
your legal basis for asking for support is. It
could be that the child is yours. You can prove
this through birth certificate.
Q: What if the child is born out of wedlock?
A: You need the acknowledgment of the father
or even you can ask for a DNA test.
BUT, in support pendent lite, it is enough that
you allege that you are married and as the wife
you are entitled to support. So regardless if
you have children, they would still be entitled
to support.
Q: What are the documents you need to
submit?
A: You have a marriage certificate and the
birth certificate of the children. If born out of
wedlock, you must have a birth certificate
signed by the father. If not signed by the
father, then you need an affidavit of witnesses
stating that the child is the son of the
defendant or it could be love letters
acknowledging the child.
Q: Would that be enough?
A: No, you still need to establish that the
defendant has the capacity to give support.
Q: And what would be your document?
A: Contract of employment or otherwise you
ask for the pay slip showing the current
income that the defendant is receiving. The
petitioner has to also allege that he/she is not
working and you have no capacity to support.
Q: What else?
A: You need to also establish how much do you
need as a necessity. You cannot ask for 1
million from the defendant who only makes
500 a week. So there must be consistency in
the amount for support and the earning
capacity of the defendant.
This complaint must also be verified.
TEAM PROVREM 2013: Room 404 Chan Lim Lituañas Ong Santos Versoza
A comment will then be filed by the defendant
to oppose to what has been alleged. This must
be also verified.
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.
In the determination of the amount to be given
for support, you must consider the income. If
the defendant produces an ITR (income tax
return) showing less than that being asked by
the complainant who shows an itemized list,
the ITR shall prevail since it is issued by the
government. But if the circumstances would
give doubt to defendant’s evidence, then the
defendant has the burden of erasing the doubt.
But in cases where the parties are not married,
it is more difficult because they will not
acknowledge the child.
Q: What if for example, the defendant was
made to pay for the hospital expenses, etc. as
support pendent lite. Now, after the court has
considered the allegations in the complaint and
considering the evidences presented, it is
found out that the child is not the child of the
defendant. What will happen now?
A: Reimbursement to the defendant.
Q: What if the defendant refuses to follow the
order to give support? Can you ask for Writ of
Execution?
A: a writ of execution is issued when a final
judgment has been rendered. But here in an
action for support pendente lite, you cite him
for contempt.
(There was a question raised by our very
handsome classmate, PAUL BLANCO)
Q: is there a need to allege that the
complainant is not able to give support?
Judge: Not necessarily because it is not the
primary responsibility of the wife. It is
necessary to determine the amount for
support.
55

It is needed only for the final judgment for
support but it is not needed when there is an
urgent need for support.
A support required by law is given
notwithstanding that the claiming party has the
means to support.
Now, on Section 6, civil liability in criminal
cases involving rape, seduction, abduction, or
acts of lasciviousness, in case the accused is
found guilty, you have Article 345 of the
Revised Penal Code.
Q: Can support pendente lite be availed of in
criminal cases? Like in a criminal case for rape
and then the victim bore a child. Can she claim
for support pendente lite?
A: Yes she can, provided that there is no
separate civil action.
There is a question regarding Section 5, 2nd
paragraph.
Q: What if there is a refusal of the defendant,
then you are their neighbor and you felt sorry
so you gave instead the support. There was
then a judgment ordering the defendant to
pay, how can the neighbor claim for
reimbursement?
A: He can ask for the execution for the
judgment himself under the principle of
solution indebiti.
When judgment is rendered, what will then be
applied is Rule 39 on the execution of
judgment.
Nowadays, this is no longer availed. The
complainants usually file a criminal case and
apply for a permanent protection order which
includes the claim for support.

Q: In the criminal action, who may file?

A: Under Section 6
--------END--------
 The application therefor may be filed
successively by the
1. offended party,
2. her parents,
3. grandparents or
4. guardian and the
5. State

There is no order of preference, as long as

there is no separate civil action.

In Section 7, defendant can ask for

reimbursement from the plaintiff or to those
who are really obliged to give support. This is
also supported under the principle of solutio
indebiti.

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.

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