Provisional Remedies Midterm PDF
Provisional Remedies Midterm PDF
Provisional Remedies Midterm PDF
Reviewer
PROVISIONAL REMEDIES – resorted to by litigants for the *after entry of judgment – writ of execution may
specific purpose of preserving or protecting their rights or already be issued.
interests during the pendency of the principal action.
WHEN WRIT OF PRELIMINARY ATTACHMENT MAY ISSUE
RULE 57 a) In an action for the recovery of a specified amount
PRELIMINARY ATTACHMENT of money or damages, other than moral and
Section 1. Grounds upon which attachment may issue. exemplary, on a cause of action arising from law,
At the commencement of the action or at any time before contract, quasi-contract, delict or quasi-delict
entry of judgment, a plaintiff or any proper party may against a party who is about to depart from the
have the property of the adverse party attached as Philippines which intent to defraud his creditors;
security for the satisfaction of any judgment that may be - That defendant is about to depart from the
recovered in the following cases: Philippines with intent to defraud his creditors.
(a) In an action for the recovery of a specified amount of - Claim for damages must be liquidated and not
money or damages, other than moral and exemplary, on
a cause of action arising from law, contract, quasi- contingent.
contract, delict or quasi-delict against a party who is b) In an action for money or property embezzled or
about to depart from the Philippines which intent to fraudulently misapplied or converted to his own use
defraud his creditors; by a public officer, or an officer of a corporation, or
(b) In an action for money or property embezzled or an attorney, factor, broker agent, or clerk, in the
fraudulently misapplied or converted to his own use by a course of his employment as such, or by other
public officer, or an officer of a corporation, or an person in a fiduciary capacity, or for a willful
attorney, factor, broker agent, or clerk, in the course of
his employment as such, or by other person in a fiduciary
violation of duty;
capacity, or for a willful violation of duty; i.e. officer of a corporation/partner
(c) In an action to recover the possession of property misappropriates funds for his personal use.
unjustly or fraudulently taken, detained or converted, *allegations should be substantiated and be
when the property, or any part thereof, has been based on concrete and specific grounds (if in
concealed, removed, or disposed of to prevent its being general terms – adverse party should be given
found or taken by the applicant or an authorized person; an opportunity to ventilate their side).
(d) In an action against a party who has been guilty of a
fraud in contracting the debt or incurring the obligation
c) In an action to recover the possession of property
upon which the action is brought, or in the performance unjustly or fraudulently taken, detained or
thereof; converted, when the property, or any part thereof,
(e) In an action against a party who has removed or has been concealed, removed, or disposed of to
disposed of his property, or is about to do so, with intent prevent its being found or taken by the applicant or
to defraud his creditors; or an authorized person;
(f) In an action against a party who does not reside and is - Refers to both personal and real properties
not found in the Philippines, or on whom summons may
be served by publication.
unjustly or fraudulently taken, detained, or
converted.
PRELIMINARY ATTACHMENT – provisional remedy by which - Distinguished from Replevin: here one seeks to
the plaintiff or other party may, at the commencement of attach to secure satisfaction of any judgment.
an action or any time thereafter, have the property of d) In an action against a party who has been guilty of
the defendant taken into custody of the court as security a fraud in contracting the debt or incurring the
for the satisfaction of the judgment that the plaintiff may obligation upon which the action is brought, or in
recover. the performance thereof;
- This applies to issuance of bouncing checks as
PURPOSE payment for indebtedness.
To secure a contingent lien on the defendant’s property - Fraud = if debtor had a preconceived plan or
until the plaintiff can apply such property to satisfy the intention not to pay (fraudulent intent cannot
judgment obtained in his favor. be inferred merely from the inability to pay or to
comply).
WHO MAY APPLY e) In an action against a party who has removed or
Plaintiff or any proper party (also a defendant who sets disposed of his property, or is about to do so, with
up a counterclaim). intent to defraud his creditors; or
- Not just mere removal ! must be with intent to
WHEN defraud the creditors.
A. AT THE COMMENCEMENT OF THE ACTION - Hearing on the issue of fraudulent disposal is
*before summons is served ! therefore, EX NECESSARY ! giving defendant opportunity to
PARTE. (so the other party may not abscond or prove that he is not disposing to defraud
dispose of his property). creditors.
**court may decide to hold a hearing (Sec. 2) f) In an action against a party who does not reside
B. ANYTIME BEFORE ENTRY OF JUDGMENT and is not found in the Philippines, or on whom
summons may be served by publication.
- Defendants covered under this item: cause of action exists, that the case is one of those
a. Non-resident defendants not found in the mentioned in section 1 hereof, that there is no other
Philippines. sufficient security for the claim sought to be enforced by
the action, and that the amount due to the applicant, or
b. Resident defendants whose identity or the value of the property the possession of which he is
whereabouts are unknown and cannot be entitled to recover, is as much as the sum for which the
ascertained by diligent inquiry. order is granted above all legal counterclaims. The
c. Resident defendants who are temporarily affidavit, and the bond required by the next succeeding
out of the Philippines. section, must be duly filed with the court before the order
Item F is not applicable to foreign corporations duly issues.
licensed to do business in the Philippines ! less mobile
than individuals. REQUIREMENTS BEFORE ISSUANCE OF ORDER
1. AFFIDAVIT, which contains/states:
LIEN CREATED a. Sufficient cause of action exists
In the nature of a proceeding IN REM (against a b. The case in one of those mentioned in Sec. 1
particular property). c. There is no other sufficient security for the
- Specific lien is acquired upon the property by the claim sought to be enforced
attaching creditor. d. The amount due or the value of the property
- Attachment lien continues after the rendition of is as much as the sum for which the order is
the judgment until the debt is paid or sale is had granted, above all legal counterclaims
under execution or until judgment is satisfied or *affidavit must be made by the plaintiff
the attachment discharged or vacated in some himself or a person who personally knows the
manner provided by law. facts.
*priority of the attachment in point of tie gives superior *sufficiency or insufficiency is determined by
right. the court (may require the presentation of
*between a vendee who had previously bought the evidence).
property but failed to register his deed of sale and an **there is sufficient compliance when in the
attaching creditor who registers his order of attachment absence of an affidavit, the required
and sale of the property to him ! ATTACHING CREDITOR allegations are contained in a verified
HAS ACQUIRED A VALID TITLE. complaint.
**attachment may issue in an action for
Sec. 2. Issuance and contents of order. foreclosure ! upon proper showing that the
An order of attachment may be issued either ex parte or value of the mortgaged property is insufficient
upon motion with notice and hearing by the court in to cover debt.
which the action is pending, or by the Court of Appeals or 2. BOND (See next Section)
the Supreme Court, and must require the sheriff of the
court to attach so much of the property in the Philippines Sec. 4. Condition of applicant's bond.
of the party against whom it is issued, not exempt from The party applying for the order must thereafter give a
execution, as may be sufficient to satisfy the applicant's bond executed to the adverse party in the amount fixed by
demand, unless such party makes deposit or gives a bond the court in its order granting the issuance of the writ,
as hereinafter provided in an amount equal to that fixed conditioned that the latter will pay all the costs which
in the order, which may be the amount sufficient to may be adjudged to the adverse party and all damages
satisfy the applicant's demand or the value of the which he may sustain by reason of the attachment, if the
property to be attached as stated by the applicant, court shall finally adjudged that hte applicant was not
exclusive of costs. Several writs may be issued at the entitled there to.
same time to the sheriffs of the courts of different judicial
regions. APPLICANT’s BOND
AMOUNT – equal to the applicant’s demand or to the
ORDER OF ATTACHMENT MAY BE ISSUED BY:
value of the property to be attached.
a. MTC where action is pending
b. RTC where action is pending
ANSWERABLE for:
c. CA
a. All COSTS which may be adjudged to the adverse
d. SC
party
*EX PARTE or UPON MOTION.
b. All the DAMAGES which the adverse party may
sustain by reason of the attachment (if court shall
The sheriff is required only to attach so much of the
adjudge the applicant not entitled).
property in the Philippines not exempt from execution as
*if BOND INSUFFICIENT ! property of the attaching
may be sufficient to satisfy the applicant’s demand
party not exempt from execution could be levied on
(amount is stated in the order).
execution.
Sec. 3. Affidavit and bond required. *when plaintiff moves to DISMISS THE ACTION the court
An order of attachment shall be granted only when it can hear PROOF OF DAMAGE to the defendant for
appears by the affidavit of the applicant, or of some other wrongful attachment.
person who personally knows the facts, that a sufficient
*damages bond may answer for: actual, temperate, Defendant may point out to sheriff property to be
nominal, and exemplary (where attachment is attached.
established to be maliciously sued out).
PROPERTIES EXEMPT FROM EXECUTION CANNOT BE
Sec. 5. Manner of attaching property. ATTACHED.
The sheriff enforcing the writ shall without delay and Sec. 13. Property exempt from execution.
with all reasonable diligence attach, to await judgment
Except as otherwise expressly provided by law, the
and execution in the action, only so much of the property
in the Philippines of the party against whom the writ is following property, and no other, shall be exempt
issued, not exempt from execution, as may be sufficient from execution:
to satisfy the applicant's demand, unless the former (a) The judgment obligor's family home as provided
makes a deposit with the court from which the writ is by law, or the homestead in which he resides, and
issued, or gives a counterbond executed to the applicant, land necessarily used in connection therewith;
in an amount equal to the bond fixed by the court in the (b) Ordinary tools and implements personally used by
order of attachment or to the value of the property to be him in hs trade, employment, or livelihood;
attached, exclusive of costs. No levy on attachment
(c) Three horses, or three cows, or three carabaos, or
pursuant to the writ issued under section 2 hereof shall
be enforced unless it is preceded, or contemporaneously other beasts of burden such as the judgment obligor
accompanied, by service of summons, together with a may select necessarily used by him in his ordinary
copy of the complaint, the application for attachment, the occupation;
applicant's affidavit and bond, and the order and writ of (d) His necessary clothing and articles for ordinary
attachment, on the defendant within the Philippines. personal use, excluding jewelry;
The requirement of prior or contemporaneous service of (e) Household furniture and utensils necessary for
summons shall not apply where the summons could not housekeeping, and used for that purpose by the
be served personally or by substituted service despite
judgment obligor and his family, such as the
diligent efforts, or the defendant is a resident of the
Philippines temporarily absent therefrom, or the judgment obligor may select, of a value not exceeding
defendant is a non-resident of the Philippines, or the one hundred thousand pesos;
action is one in rem or quasi in rem. (f) Provisions for individual or family use sufficient
for four months;
TO PREVENT SHERIFF FROM LEVYING ON ATTACHMENT (g) The professional libraries and equipment of
Adverse party should judges, lawyers, physicians, pharmacists, dentists,
1. Make a deposit with the court which issued the writ engineers, surveyors, clergymen, teachers, and other
2. Give a counter-bond executed to the applicant in professionals, not exceeding three hundred thousand
an amount equal to that fixed in the order of pesos in value;
attachment or to the value of the property to be (h) One fishing boat and accessories not exceeding the
attached id the value is less than the amount of the total value of one hundred thousand pesos owned by a
demand (exclusive of costs). fisherman and by the lawful use of which he earns his
livelihood;
PURPOSE ! securing the payment of any judgment ifo (i) So much of the salaries, wages, or earnings of the
the attaching party. judgment obligor of his personal services within the
four months preceding the levy as are necessary for
GR: levy on attachment shall not be enforced unless the support of his family;
there has been a prior or contemporaneous service of (j) Lettered gravestones;
the summons together with: (k) Monies benefits, privileges, or annuities accruing
a. a copy of the complaint or in any manner growing out of any life insurance;
b. the application for attachment (l) The right to receive legal support, or money or
property obtained as such support, or any pension or
c. the applicant’s affidavit and bond, and
gratuity from the Government;
d. The order and writ of attachment.
(m) Properties specially exempt by law.
**applies only to defendants within the Phils.
But no article or species of property mentioned in his
EXC:
section shall be exempt from execution issued upon a
a) Where summons could not be served
judgment recovered for its price or upon a judgment
personally or by substituted service despite
of foreclosure of a mortgage thereon.
diligent efforts
b) The defendant is a resident of the Phils.
ALSO EXEMPT ARE:
temporarily absent therefrom
a. Properties whose title is not in the name of the
c) Defendant is a non-resident of the Phils.
defendant (unless it is shown that he has
d) Action is one in rem or quasi in rem.
beneficial interest)
**irregularities cannot be cured by subsequent service of
b. Foreign currency deposits (from foreign lenders
summons (writ of attachment will have to be re-served
and investors, not from transients or tourists)
and re-implemented all over again after the service of
c. Smuggled goods ordered seized by BOC.
the summons).
Sec. 6. Sheriff's return.
After enforcing the writ, the sheriff must likewise without belonging to said party, are attached in pursuance of such
delay make a return thereon to the court from which the writ;
writ issued, with a full statement of his proceedings (e) The interest of the party whom attachment is issued in
under the writ and a complete inventory of the property property belonging to the estate of the decedent, wether
attached, together with any counter-bond given by the as heir, legatee, or devisee, by serving the executor or
party against whom attachment is issued, and serve administrator or other personal representative of the
copies thereof on the applicant. decedent with a copy of the writ and notice that said
interest is attached. A copy of said writ of attachment and
RETURN – submitted to the court which issued the writ of said notice shall also be filed in the office of the clerk of
(applicant is likewise furnished a copy). the court in which said estate is being settled and served
Shall contain: upon the heir, legatee or devisee concerned.
If the property sought to be attached is in custodia legis, a
1. Full statement of his proceedings under the writ copy of the writ of attachment shall be filed with the
2. Complete inventory of the property attached proper court or quasi-judicial agency, and notice of the
3. Any counter-bond given by the adverse party. attachment served upon the custodian of such property.
Sec. 7. Attachment of real and personal property; WHAT CONSTITUTES VALID LEVY ON ATTACHMENT
recording thereof.
REAL PROPERTY Should be duly recorded in the
Real and personal property shall be attached by the
sheriff executing the writ in the following manner: Registry of Property
(a) Real property, or growing crops thereon, or any Should contain a reference to the
interest therein, standing uponthe record of the registry number of its certificate of title and
of deed of the province in the name of the party against the volume and page in the registry
whom attachment is issued, or not appearing at all upon book where the certificate is
such records, or belonging to the party against whom registered.
attachment is issued and held by any other person, or
standing on the records of the registry of deeds in the
name of any other person, by filing with the registry of If land unregistered – notice should
deeds a copy of the order, together with a description of be registered under Act 3344.
the property attached, and a notice that it is attached, or PERSONAL Sheriff must take actual possession of
that such real property and any interest therein held by PROPERTY the property attached as far as
or standing in the name of such other person are practicable.
attached, and by leaving a copy of such order,
Property must be in his substantial
description, and notice with the occupant of the property,
if any, or with such other person or his agent if found presence and possession adverse an
within the province. Where the property has been exclusive of the attachment debtor.
brought under the operation of either the Land SHARES OF Situs – for purposes of attachment is
Registration Act or the Property Registration Decree, the STOCK the jurisdiction where the corporation
notice shall contain a reference to the number of the is created.
certificate of title, the volume and page in the registration
DEBTS AND Garnishment – a species of
book where the certificate is registered, and the
registered owner or owners thereof. CREDITS AND attachment for reaching any
The registrar of deed must index attachments filed under OTHER PERSONAL property pertaining to the judgment
this section in the names of the applicant, the adverse PROPERTY NOT debtor and owing to him from a
party, or the person by whom the property is held or in CAPABLE OF stranger to the litigation.
whose name it stands in the records. If the attachment is MANUAL Debt – some definite amount of
not claimed on the entire area of the land covered by the DELIVERY money, ascertained, or capable of
certificate of title, a description sufficiently accurate for
being ascertained, which may be
the identification of the land or interest to be affected
shall be included in the registration of such attachment; paid over to the sheriff or the court
(b) Personal property capable of manual delivery, by under an order.
taking and safely keeping it in his custody, after issuing Credits & Personal Property –
the corresponding receipt therefor; something belonging to the
(c) Stocks or shares, or an interest in stocks or shares, of defendant, but in possession and
any corporation or company, by leaving with the under the control of the garnishee.
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 Property in custodial egis may be
pursuance of such writ; garnished.
(d) Debts and credits, including bank deposits, financial
interest, royalties, commissions, and other personal As to salary – only the salary due the
property not capable of manual delivery, by leaving with judgment debtor is subject to
the person owing such debts, or having in his possession attachment and execution and must
or under his control, such credits or other personal
not be necessary for the support of
property, or with his agent, a copy of the writ, and notice
that the debts owing by him to the party against whom his family.
attachment is issued, and the credits and other personal *salary due – where payment is at the
property in his possession, or under his control, end of the month – cannot be
attached before the end of the
month in which it is to be earned. examined on oath. The court may, after such
*so much of the earnings of the examination, order personal property capable of manual
judgment obligor for his personal delivery belonging to him, in the possession of the person
services within 4 mos. preceding the so required to attend before the court, to be delivered to
levy as are necessary for the support the clerk of the court or sheriff on such terms as may be
of his family – EXEMPT. just, having reference to any lien thereon or claim against
INTEREST IN THE the same, to await the judgment in the action.
ESTATE OF A
DECEDENT PROCEDURE IF GARNISHEE DENIES INDEBTEDNESS
" He may be required to attend before the court
Sec. 8. Effect of attachment of debts, credits and all other where action is pending to be examined under
similar personal property. oath.
All persons having in their possession or under their " Court cannot compel him to pay or deliver the
control any credits or other similar personal property property upon his denial of the debt or claim of
belonging to the party against whom attachment is the property – controversy must be determined
issued, or owing any debts to him, at the time of service by separate action.
upon them of the copy of the writ of attachment and
notice as provided in the last preceding section, shall be Sec. 11. When attached property may be sold after levy on
liable to the applicant for the amount of such credits, attachment and before entry of judgment.
debts or other similar personal property, until the Whenever it shall be made to appear to the court in which
attachment is discharged, or any judgment recovered by the action is pending, upon hearing with notice to both
him is satisfied, unless such property is delivered or parties, that the party attached is perishable, or that the
transferred, or such debts are paid, to the clerk, sheriff, interests of all the parties to the action will be will be
or other proper officer of the court issuing the subserved by the sale thereof, the court may order such
attachment. property to be sold at public auction in such manner as it
may direct, and the proceeds of such sale to be deposited
Garnishee is not liable if judicially compelled to pay the in court to abide the judgment in the action.
garnished amount to the debtor in the principal action.
SALE after levy but BEFORE ENTRY of judgment (upon
Judgment creditor may bring action against the hearing and notice to the parties)
garnishee ! if the latter fraudulently disposes of the 1. When property is PERISHABLE
property in his hands after having been notified of its 2. INTERESTS of the parties will be SUBSERVED by the
attachment, may be sued by the plaintiff for the value of sale thereof.
the property. *proceeds shall be deposited in court !paid to the
judgment obligee AFTER ENTRY of judgment (excess
Sec. 9. Effect of attachment of interest in property returned to the judgment obligor).
belonging to the estate of a decedent.
The attachment of the interest of an heir, legatee, or Sec. 12. Discharge of attachment upon giving
devisee in the property belonging to the estate of a counterbond.
decedent shall not impair the power of the executor, After a writ of attachment has been enforced, the party
administrator, or other personal representative of the whose property has been attached, or the person
decedent over such property for the purpose of appearing on his behalf, may move for the discharge of
administration. the attachment wholly or in part on the security given.
Such personal representative, however, shall report the The court shall, after due notice and hearing, order the
attachment to the court when any petition for discharge of the attachment if the movant makes a cash
distribution is filed, and in the order made upon such deposit, or files a counter-bond executed to the attaching
petition, distribution may be awarded to such heir, party with the clerk of the court where the application is
legatee, or devisee, but the property attached shall be made, in an amount equal to that fixed by the court in the
ordered delivered to the sheriff making the levy, subject order of attachment, exclusive of costs. But if the
to the claim of such heir, legatee, or devisee, or any attachment is sought to be discharged with respect to a
person claiming under him. particular property, the counter-bond shall be equal to
the value of that property as determined by the court. In
Sec. 10. Examination of party whose property is attached either case, the cash deposit or the counter-bond shall
and persons indebted to him or controlling his property; secure the payment of any judgment that the attaching
delivery of property to sheriff. party may recover in the action. A notice of the deposit
shall forth with be served on the attaching party. Upon
Any person owing debts to the party whose property is the discharge of an attachment in accordance with the
attached or having in his possession or under his control provisions of this section, the property attached, or the
any credit or other personal property belonging to such proceeds of any sale thereof, shall be delivered to the
party, may be required to attend before the court in party making the deposit or giving the counter-bond, or
which the action is pending, or before a commissioner to the person appearing on his behalf, the deposit or
counter-bond aforesaid standing in place of the property
appointed by the court, and be examine on oath so released. Should such counter-bond for any reason to
respecting the same. The party whose property is be found to be or become insufficient, and the party
attached may also be required to attend for the purpose furnishing the same fail to file an additional counter-
of giving information respecting his property, and may be
By: RJ MARTINEZ Based on Feria & Noche Book
5 III – LLB, EH404, USC – College of Law
Provisional remedies & special civil actions
Reviewer
bond, the attaching party may apply for a new order of a. Before levy
attachment. b. After levy
c. Even before the property has been released from a
HOW DISCHARGE OF ATTACHMENT MAY BE MADE levy on attachment through the cash deposit or
1. Upon the MOTION of the party whose property has counter-bond.
been attached OR person appearing on his behalf.
2. After due NOTICE and HEARING If attachment writ was issued ex parte ! motion to
3. Order may be issued to discharge if movant: discharge the attachment (Certiorari is premature, there
i. Make CASH DEPOSIT being an adequate remedy in law still available).
ii. Files a COUNTER-BOND in an amount equal to *merits of the main action may not be tried in a
that fixed by the court (exclusive of costs). motion to discharge.
*TOTAL DISCHARGE of the attachment if a cash deposit is ++where cause of action in the main case is the same
made or a proper counter-bond is filed equal to the ground upon which attachment was issued ! no
demand of the applicant. hearing on the motion to discharge before the issues
*PARTIAL DISCHARGE – discharge sought is with respect to are joined in the main action.
a particular property and the amount of the cash deposit i.e. action for money or property embezzled (fraud is
or counter-bond filed only equal to the value of property the ground for issuance of writ and at the same time
(not demand of applicant). the cause of action in the main case).
**defendant can make a cash deposit or file a
EFFECT OF DISCHARGE counter-bond to discharge the attachment.
Property is released and becomes free and no longer
liable to the results of the proceedings in which it was WHEN ATTACHMENT IS IMPROPERLY ISSUED
attached. a. The complaint states no cause of action
*but the liability on the attachment bond subsists and b. The attaching creditor fails to prove the ground on
continues to be in force despite the discharge of the which the attachment is based (during hearing).
attachment by the filing of the counter-bond. c. The allegations of the complaint have been
! bond shall be discharged when court shall finally deceptively framed.
adjudge that the attaching creditor was not entitled d. Plaintiff’s affidavit and bond are not in accordance
to the issuance of the attachment in the 1st place. with Sec. 3 and 4.
*if found to be insufficient ! party who files the counter- *any of these may be a valid ground for the discharge of
bond is required to furnish an additional counter-bond – if the writ when allegations refer to or attack the very
he does not so furnish, attaching party may apply for a circumstances attending the issuance of the writ.
new order of attachment.
OTHER CASES OF DISSOLUTION OF ATTACHMENT
Sec. 13. Discharge of attachment on other grounds.
The party whose property has been ordered attached may 1. Under insolvency law (Sec. 32, Act 1956)
file a motion with the court in which the action is 2. The dismissal of an action upon which a writ of
pending, before or after levy or even after the release of attachment has been issued has the effect of
the attached property, for an order to set aside or dissolving the attachment.
discharged the attachment on the ground that the same *if order of dismissal is not final (or before its finality) and
was improperly or irregularly issued or enforced, or that the case is reinstated ! attachment remains in force.
the bond is insufficient. If the attachment is excessive,
the discharge shall be limited to the excess. If the motion Sec. 14. Proceedings where property claimed by third
be made on affidavits on the part of the movant but not person.
otherwise, the attaching party may oppose the motion by If the property attached is claimed by any person other
counter-affidavits or other evidence in addition to that on than the party against whom attachment had been issued
which the attachment was made. After due notice and or his agent, and such person makes an affidavit of his
hearing, the court shall order the setting aside or the title thereto, or right to the possession thereof, stating
corresponding discharge of the attachment if it appears the grounds of such right or title, and serves such
that it was improperly or irregularly issued or enforced, affidavit upon the sheriff while the latter has possession
or that the bond is insufficient, or that the attachment is of the attached party, and a copy thereof upon the
excessive, and the defect is not cured forthwith. attaching party, the sheriff shall not be bound to keep the
property under attachment, unless the attaching party or
OTHER GROUNDS FOR THE DISCHARGE OF ATTACHMENT his agent, on demand of the sheriff, shall file a bond
a. Improper or irregular issuance of order of approved by the court to indemnify the third-party
attachment claimant in a sum not less than the value of the property
b. Improper or irregular enforcement of the writ of levied upon. In case of disagreement as to such value, the
attachment same shall be decided by the court issuing the writ of
c. Insufficiency of the bond attachment. No claim for damages for the taking or
keeping of the property may be enforced against the bond
d. Excessive attachment unless the action therefor is filed within one hundred
twenty (120) days from the date of the filing of the bond.
MOTION TO LIFT ATTACHMENT on the above grounds may The sheriff shall not be liable for damages for the taking
be filed/resorted to; or keeping of such property, to any such third-party
claimant, if such bond shall be filed. Nothing herein the order of the court, or so much as shall be necessary to
contained such prevent such claimant or any third satisfy the judgment;
person from vindicating his claim to the property, or (b) If any balance remains due, by selling so much of the
prevent the attaching party from claiming damages property, real or personal, as may be necessary to satisfy
against a third-party claimant who filed a frivolous or the balance, if enough for that purpose remain in the
plainly spurious claim, in the same or a separate action. sheriff's hands, or in those of the clerk of the court;
When the writ of attachment is issued in favor of the (c) By collecting from all persons having in their
Republic of the Philippines, or any officer duly possession credits belonging to the judgment obligor, or
representing it, the filing of such bond shall not be owing debts to the latter at the time of the attachment of
required, and in case the sheriff is sued for damages as a such credits or debts, the amount of such credits and
result of the attachment, he shall be represented by the debts as determine by the court in the action, and stated
Solicitor General, and if held liable therefor, the actual in the judgment, and paying the proceeds of such
damages adjudged by the court shall be paid by the collection over to the judgment obligee.
National Treasurer out of the funds to be appropriated The sheriff shall forthwith make a return in writing to the
for the purpose. court of his proceedings under this section and furnish
the parties with copies thereof.
WHERE PROPERTY ATTACHED IS CLAIMED BY 3RD PERSON
1. 3rd person makes an AFFIDAVIT of his title to the Paying the judgment obligee the proceed of all sales of
property claimed or right to possession thereof, perishable or other property sold
stating the grounds of such right or title. Selling so much of the property as may be necessary tp
2. 3rd party claimant SERVES such affidavit upon the satisfy the balance
SHERIFF while the latter has possession and a By collecting from all persons having in their possession
copy thereof to the ATTACHING PARTY. credits belonging to the judgment obligor, or owing debts
to the latter at the time of the attachment of such credits
To KEEP the PROPERTY under ATTACHMENT ! or debts.
attaching party or his agent, on demand of the
sheriff, FILES A BOND approved by the court in a Sheriff should furnish return to the:
sum not less than the value of the property levied 1. Court
upon in order to indemnify the 3rd party claimant. 2. Parties
*otherwise, sheriff not obligated to keep property
under attachment. Sec. 16. Balance due collected upon an execution; excess
Purpose of Bond – to answer for damages delivered to judgment obligor.
After realizing upon all the property attached, including
suffered by the 3rd party claimant for the the proceed of any debts or credits collected, and
taking or keeping of the attached property. applying the proceeds to the satisfaction of the judgment,
*claim for damages against the bond must be less the expenses of proceedings upon the judgment, any
filed within 120D from the date of the filing of balance shall remain due, the sheriff must proceed to
the bond. collect such balance as upon ordinary execution.
Whenever the judgment shall have been paid, the sheriff,
If ATTACHING PARTY is the REPUBLIC or any upon reasonable demand, must return to the judgment
obligor the attached property remaining in his hands,
OFFICER duly representing it: and any proceeds of the sale of the property attached not
Filing of a bond shall not be required applied to the judgment.
If sheriff is sued for damages as a result of the
attachment ifo RP ! to be represented by the If attached property (including debts or credits
OSG ! if held LIABLE, damages adjudged by the collected) is not sufficient ! sheriff must proceed to
court shall be paid out of the funds appropriated collect any balance on the judgment that remains due
for the purpose by the NATIONAL TREASURER. as upon ordinary execution.
If MORE ! upon reasonable demand, the sheriff must
3rd party claim must be filed with the sheriff while the return it to the judgment obligor.
latter is still in possession of the property levied upon.
Sec. 17. Recovery upon the counter-bond.
3rd party claimant may vindicate his claim to the When the judgment has become executory, the surety or
attached property (or attaching party may claim for sureties on any counter-bond given pursuant to the
damages against the 3rd party complainant) ! in the provisions of this Rule to secure the payment of the
judgment shall become charged on such counter-bond
SAME or SEPARATE action. and bound to pay the judgment obligee upon demand the
amount due under the judgment, which amount may be
Sec. 15. Satisfaction of judgment out of property recovered from such surety or sureties after notice and
attached; return of sheriff. summary hearing in the same action.
If judgment be recovered by the attaching party and
execution issue thereon, the sheriff may cause the COUNTER-BOND REFERRED TO IN SEC. 17 ! that filed and
judgment to be satisfied out of the property attached, if it
be sufficient for that purpose in the following manner: executed under Sec. 5 and 12 by or in behalf of the
(a) By paying to the judgment obligee the proceeds of all adverse party ifo the attaching party to secure the
sales of perishable or other property sold in pursuance of payment or satisfaction of any judgment which the latter
may obtain in the action.
By: RJ MARTINEZ Based on Feria & Noche Book
7 III – LLB, EH404, USC – College of Law
Provisional remedies & special civil actions
Reviewer
All awards for damages should be included in the particular act/s which order that the last actual
judgment before they can be executory. would cause irreparable preamble and
The requirement that the application for damages injury if committed. uncontested status which
against the surety and the award thereof be made Situation before the preceded the pending
after hearing before the entry of the executory issuance of the prohibitory controversy is restored.
judgment is MANDATORY. injunction is preserved in
EXC: where applicant seasonably filed an application for status quo. PURPOSE ! to require the
damages in the appellate court and the latter decided performance of a
to refer such application to the trial court to hear and PURPOSE ! to preserve the particular act/s (tends to
decide the same. status quo of the things do more than maintain the
subject of the action or the status quo).
Liability of party obtaining attachment not limited to the relation between the
bond. parties, in order to protect Here, plaintiff’s right must
" Bond does not operate to relieve the party the rights of the plaintiff be clear and unmistakable.
obtaining the same from any and all responsibility respecting the subject of
for the damages the writ may cause. the action during the REQUISITES:
*bond merely an additional protection (in pendency of the suit. Clear and unmistakable
fact, should bond or deposit not be enough – legal right
may go after properties of the attaching Relief demanded must Right has been violated
party. consist in restraining the and the invasion is material
*only liability of surety is limited to the bond. commission or continuance and substantial
of the act complained of, There is an urgent and
RULE 58
either perpetually or limited permanent necessity to
PRELIMINARY INJUNCTION
period, and the other prevent serious damage.
Section 1. Preliminary injunction defined; classes. conditions required by Sec.
A preliminary injunction is an order granted at any stage 3 of R58.
of an action or proceeding prior to the judgment or final
order, requiring a party or a court, agency or a person to
refrain from a particular act or acts. It may also require
Court cannot dismiss main action for damages and
the performance of a particular act or acts, in which case
it shall be known as a preliminary mandatory injunction. injunction in order to hear and determine the propriety of
the issuance of preliminary injunction.
INJUNCTION – a judicial writ, process, or proceeding
whereby a party is ordered to do or refrain from doing a DISTINGUISHED FROM
certain act. It may be the main action or merely a PREVENTIVE INJUNCTION PROHIBITION
provisional remedy incident in the main action. An order requiring a party A judgment commanding
litigant to refrain from a a tribunal, corp., board,
KINDS particular act officer or person [TBCOP] to
PRELIMINARY PERMANENT/FINAL desist from further
An order granted at any A judgment rendered after proceeding in the action or
stage of an action or trial which perpetually matter specified therein
proceeding prior to the restrains the party or person bec it acts without or in
judgment or final order, enjoined from the excess of jurisdiction or in
requiring a party or a court, commission or continuance grave abuse of discretion
agency or a person either of the act/s, or confirming amounting to lack of
to refrain from or perform, a the preliminary mandatory jurisdiction.
particular act/s. injunction. MANDATORY INJUNCTION MANDAMUS
An order requiring a party Judgment commanding a
Exists as part of an incident litigant to perform a TBCOP unlawfully
of an independent action particular act in order to neglecting the
or proceeding. restore the last actual performance of an act
peaceable uncontested which the law specifically
Granted at any stage of an status which preceded the enjoins as a duty resulting
action or proceeding prior pending controversy. from an office, trust, or
to the judgment or final station or unlawfully
order. excluding another from the
use and enjoyment of a
CLASSES OF PRELIMINARY INJUNCTION right or office to which such
PREVENTIVE/PROHIBITORY MANDATORY other is entitled, to do the
Requires one to desist or Requires the performance act required to be done in
refrain from performing a of a particular act/s in order to protect the rights
By: RJ MARTINEZ Based on Feria & Noche Book
9 III – LLB, EH404, USC – College of Law
Provisional remedies & special civil actions
Reviewer
(a) The application in the action or proceeding is verified, affidavits or by the verified application that great or
and shows facts entitling the applicant to the relief irreparable injury would result to the applicant before
demanded; and the matter can be heard on notice, the court to which the
(b) Unless exempted by the court, the applicant files with application for preliminary injunction was made, may
the court where the action or proceeding is pending, a issue ex parte a temporary restraining order to be
bond executed to the party or person enjoined, in an effective only for a period of twenty (20) days from
amount to be fixed by the court, to the effect that the service on the party or person sought to be enjoined,
applicant will pay to such party or person all damages except as herein provided. Within the said twenty-day
which he may sustain by reason of the injunction or period, the court must order said party or person to show
temporary restraining order if the court should finally cause, at a specified time and place, why the injunction
decide that the applicant was not entitled thereto. Upon should not be granted, determine within the same period
approval of the requisite bond, a writ of preliminary whether or not the preliminary injunction shall be
injunction shall be issued. granted, and accordingly issue the corresponding order.
(c) When an application for a writ of preliminary However, and subject to the provisions of the preceding
injunction or a temporary restraining order is included sections, if the matter is of extreme urgency and the
in a complaint or any initiatory pleading, the case, if filed applicant will suffer grave injustice and irreparable
in a multiple-sala court, shall be raffled only after notice injury, the executive judge of a multiple-sala court or the
to and in the presence of the adverse party or the person presiding judge of a single-sala court may issue ex parte a
to be enjoined. In any event, such notice shall be temporary restraining order effective for only seventy-
preceded, or contemporaneously accompanied, by two (72) hours from issuance but he shall immediately
service of summons, together with a copy of the comply with the provisions of the next preceding section
complaint or initiatory pleading and the applicant’s as to service of summons and the documents to be served
affidavit and bond, upon the adverse party in the therewith. Thereafter, within the aforesaid seventy-two
Philippines. (72) hours, the judge before whom the case is pending
However, where the summons could not be served shall conduct a summary hearing to determine whether
personally or by substituted service despite diligent the temporary restraining order shall be extended until
efforts, or the adverse party is a resident of the the application for preliminary injunction can be heard.
Philippines temporarily absent therefrom or is a In no case shall the total period of effectivity of the
nonresident thereof, the requirement of prior or temporary restraining order exceed twenty (20) days,
contemporaneous service of summons shall not apply. including the original seventy-two hours provided herein.
(d) The application for a temporary restraining order In the event that the application for preliminary
shall thereafter be acted upon only after all parties are injunction is denied or not resolved within the said
heard in a summary hearing which shall be conducted period, the temporary restraining order is deemed
within twenty-four (24) hours after the sheriff’s return of automatically vacated. The effectivity of a temporary
service and/or the records are received by the branch restraining order is not extendible without need of any
selected by raffle and to which the records shall be judicial declaration to that effect and no court shall have
transmitted immediately. authority to extend or renew the same on the same
ground for which it was issued.
REQUISITES However, if issued by the Court of Appeals or a member
1. VERIFIED APPLICATION (showing facts entitling thereof, the temporary restraining order shall be
applicant to relief demanded). effective for sixty (60) days from service on the party or
person sought to be enjoined. A restraining order issued
2. BOND filed with court in an amount fixed by it by the Supreme Court or a member thereof shall be
(unless exempted by the court). effective until further orders.
Answers for any and all damages, actual, moral,
and exemplary, which the party or person IRREPARABLE INJURY ! that species of injury, whether
enjoined may sustain by reason of the preliminary great or small, that ought not to be submitted to on the
injunction or temporary restraining order, if court one hand or inflicted on the other, and because it is so
should finally decide that the applicant was not large o the one hand, or so small on the other, is of such
entitled thereto. constant and frequent recurrence that no fair or
When application is included in complaint or initiatory reasonable redress can be had therefor in the court of
pleading: law.
3. RAFFLE of case with NOTICE (preceded or - Not susceptible to mathematical computation.
contemporaneously accompanied by service of - No standard by which amount can be
summons with copy of complaint, affidavit, and measured.
bond).
4. SUMMARY HEARING GR: PRELIM INJUNCTION shall be granted only after
*if there can be no prior or contemporaneous service of hearing and prior notice.
summons (i.e. temporarily absent from the country) – APPLICATION FOR THE ORDER shall be ACTED UPON after
requirement of notice to and presence of adverse party all parties are heard in a SUMMARY HEARING conducted
during raffle may be dispensed with. within 24 hrs after the sheriff’s return of service of
summons. And/or the records are received by the branch
Sec. 5. Preliminary injunction not granted without selected by raffle and to which the records shall be
notice; exception.
No preliminary injunction shall be granted without transmitted immediately.
hearing and prior notice to the party or person sought to EXC: in cases of extreme urgency and the applicant
be enjoined. If it shall appear from facts shown by will suffer grave injustice and irreparable injury (may
be EX PARTE) ! issued by EXECUTIVE JUDGE or with sufficient sureties approved after justification is not
PRESIDING JUDGE and VALID for 72 hrs. filed forthwith, the injunction shall be granted or
restored, as the case may be.
Life of prelim injunction ! 20 days (including the 72 hrs if
IF BOND FILED INSUFFICIENT
earlier issued ex parte) ! CA = 60D; SC = effective until
Bond sufficient in amount with sufficient sureties
further orders.
approved after justification will be required to be filed
*deemed automatically vacated after the period (by
(otherwise injunction shall be dissolved or
operation of law).
granted/restored).
*may be extendible BUT for another ground other than
that for which it was originally issued. Sec. 8. Judgment to include damages against party and
*Saturdays, Sundays, and holidays included in the count. sureties.
At the trial, the amount of damages to be awarded to
Sec. 6. Grounds for objection to, or for motion of either party, upon the bond of the adverse party, shall be
dissolution of, injunction or restraining order. claimed, ascertained, and awarded under the same
The application for injunction or restraining order may procedure prescribed in section 20 of Rule 57.
be denied, upon a showing of its insufficiency. The
injunction or restraining order may also be denied, or, if Damages must be claimed in the same action !
granted, may be dissolved, on other grounds upon otherwise, BARRED!
affidavits of the party or person enjoined, which may be *judgment must be included in the final judgment of the
opposed by the applicant also by affidavits. It may further
be denied, or, if granted, may be dissolved, if it appears case.
after hearing that although the applicant is entitled to the
injunction or restraining order, the issuance or Sec. 9. When final injunction granted.
continuance thereof, as the case may be, would cause If after the trial of the action it appears that the applicant
irreparable damage to the party or person enjoined while is entitled to have the act or acts complained of
the applicant can be fully compensated for such damages permanently enjoined, the court shall grant a final
as he may suffer, and the former files a bond in an injunction perpetually restraining the party or person
amount fixed by the court conditioned that he will pay all enjoined from the commission or continuance of the act
damages which the applicant may suffer by the denial or or acts or confirming the preliminary mandatory
the dissolution of the injunction or restraining order. If it injunction.
appears that the extent of the preliminary injunction or
restraining order granted is too great, it may be modified. Final injunction may NOT be granted before judgment.
*only granted after trial and after it is proved that the
GROUNDS FOR OBJECTION TO/MOTION OF DISSOLUTION applicant is entitled to have the act/s complained of
OF INJUNCTION permanently enjoined.
a. Insufficiency of the application *final injunction does not necessarily follow when one
b. Filing by the party enjoined of a counter-bond in an has earlier been granted preliminary injunction.
amount fixed by the court when issuance or
continuance of the injunction would cause
irreparable damage to the party enjoined RULE 59
RECEIVERSHIP
c. Insufficiency of the applicant’s bond
Section 1. Appointment of receiver.
FILING OF COUNTER-BOND BY PARTY ENJOINED Upon a verified application, one or more receivers of the
" NOT a MATTER of RIGHT. property subject of the action or proceeding may be
- May be approved by the court after hearing. appointed by the court where the action is pending, or by
- Purpose: liable for al damages which the the Court of Appeals or by the Supreme Court, or a
applicant may suffer by the denial or the member thereof, in the following cases:
(a) When it appears from the verified application, and
dissolution of the injunction or restraining order. such other proof as the court may require, that the party
applying for the appointment of a receiver has an interest
Court may consider supervening events during the in the property or fund which is the subject of the action
litigation to lift the injunction. or proceeding, and that such property or fund is in
danger of being lost, removed, or materially injured
Sec. 7. Service of copies of bonds; effect of disapproval of unless a receiver be appointed to administer and
same. preserve it;
The party filing a bond in accordance with the provisions (b) When it appears in an action by the mortgagee for the
of this Rule shall forthwith serve a copy of such bond on foreclosure of a mortgage that the property is in danger
the other party, who may except to the sufficiency of the of being wasted or dissipated or materially injured, and
bond, or of the surety or sureties thereon. If the that its value is probably insufficient to discharge the
applicant’s bond is found to be insufficient in amount, or mortgage debt, or that the parties have so stipulated in
if the surety or sureties thereon fail to justify, and a bond the contract of mortgage;
sufficient in amount with sufficient sureties approved (c) After judgment, to preserve the property during the
after justification is not filed forthwith, the injunction pendency of an appeal, or to dispose of it according to the
shall be dissolved. If the bond of the adverse party is judgment, or to aid execution when the execution has
found to be insufficient in amount, or the surety or been returned unsatisfied or the judgment obligor
sureties thereon fail to justify a bond sufficient in amount
By: RJ MARTINEZ Based on Feria & Noche Book
12 III – LLB, EH404, USC – College of Law
Provisional remedies & special civil actions
Reviewer
refuses to apply his property in satisfaction of the proper to remedy maladministration of co-
judgment, or otherwise to carry the judgment into effect; owned property
(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 (b) When it appears in an action by the mortgagee for
of the property in litigation. the foreclosure of a mortgage that the property is
During the pendency of an appeal, the appellate court in danger of being wasted or dissipated or
may allow an application for the appointment of a materially injured, and that its value is probably
receiver to be filed in and decided by the court of origin insufficient to discharge the mortgage debt, or that
and the receiver appointed to be subject to the control of the parties have so stipulated in the contract of
said court. mortgage;
- Appointment of receiver not a matter of
RECEIVER – an indifferent person between the parties to a
absolute right when stipulated for by the parties.
cause, appointed by the court to receive and preserve
the property or fund in litigation pendent lite, when it
(c) After judgment, to preserve the property during the
does not seem reasonable to the court that either party
pendency of an appeal, or to dispose of it
should hold it.
according to the judgment, or to aid execution
when the execution has been returned unsatisfied
PURPOSE ! aimed at the preservation of and the making
or the judgment obligor refuses to apply his
secure of existing rights (cannot be used as an instrument
property in satisfaction of the judgment, or
for the destruction of these rights).
otherwise to carry the judgment into effect;
*of all the extraordinary remedies – most drastic and far –
- Trial court still has jurisdiction to appoint receiver
reaching in effect.
even after perfection of appeal (residual
jurisdiction).
FOLLOWING MAY APPOINT RECEIVER
- Receiver may be appointed when execution
a. MTC where action is pending
returned unsatisfied.
b. RTC where action is pending
c. CA or any member thereof
(d) Whenever in other cases it appears that the
d. SC or any member thereof
appointment of a receiver is the most convenient
i.e. in petitions to declare state of suspension of payments
and feasible means of preserving, administering, or
RTC appoints; in dissolution of corporations SEC appoints.
disposing of the property in litigation. During the
pendency of an appeal, the appellate court may
APPOINTMENT ! discretionary. (court shall consider the
allow an application for the appointment of a
entire circumstances of the case).
receiver to be filed in and decided by the court of
- Receiver may be appointed during the
origin and the receiver appointed to be subject to
pendency of the appeal (by the appellate court
the control of said court.
or the lower court).
- Courts have wide discretion in appointment of
receiver ! but must not be exercised arbitrarily
REMEDY AGAINST AN ORDER APPOINTING RECEIVER
and sound reasons for appointment must
Certiorari, not appeal.
appear.
*appeal only after final judgment has been rendered.
- Aggrieved spouse may petition the court for
receivership of the common property (if the other
When receivership appointed
abandons without just cause or fails to comply
(a) When it appears from the verified application, and
with his obligations). *court may appoint the
such other proof as the court may require, that the
applicant-spouse or a 3rd person.
party applying for the appointment of a receiver
*In controversies involving business organizations and
has an interest in the property or fund which is the
partnerships, party may apply for receiver when there is
subject of the action or proceeding, and that such
imminent danger of:
property or fund is in danger of being lost,
a. Dissipation, los, wastage, destruction of assets or
removed, or materially injured unless a receiver be
properties;
appointed to administer and preserve it;
b. Paralyzation of the business operations prejudicial
Requisites:
to the interests of the minority stockholders, parties,
1. Interest in the property (actual existing
public in general.
interest)
i.e. in a derivative suit; when managing partner
2. Subject property/fund must be in litigation
disposes partnership property; wind up affairs of a
according to the allegations of the
dissolved partnership.
complaint
3. Purpose is to secure and preserve the Sec. 2. Bond on appointment of receiver.
property/fund pending litigation Before issuing the order appointing a receiver the court
i.e. not proper in actions involving title to shall require the applicant to file a bond executed to the
real estate (except in extreme cases and on party against whom the application is presented, in an
a clear showing of necessity therefor); amount to be fixed by the court, to the effect that the
applicant will pay such party all damages he may sustain discharge his duties faithfully or to obey the orders of the
by reason of the appointment of such receiver in case the court.
applicant shall have procured such appointment without
sufficient cause; and the court may, in its discretion, at Sec. 5. Service of copies of bonds; effect of disapproval of
any time after the appointment, require an additional same.
bond as further security for such damages. The person filing a bond in accordance with the
provisions of this Rule shall forthwith serve a copy
Purpose of applicant’s bond thereof on each interested party, who may except to its
Executed to the party against whom the application is sufficiency or of the surety or sureties thereon. If either
presented, to the effect that the applicant will pay such the applicant’s or the receiver’s bond is found to be
party all damages he may sustain by reason of the insufficient in amount, or if the surety or sureties
appointment of such receiver in case the applicant shall thereon fail to justify, and a bond sufficient in amount
with sufficient sureties approved after justification is not
have procured such appointment without sufficient filed forthwith, the application shall be denied or the
cause. receiver discharged, as the case may be. If the bond of the
adverse party is found to be insufficient in amount or the
Appointment of receiver ! cannot be done EX PARTE. surety or sureties thereon fail to justify, and a bond
sufficient in amount with sufficient sureties approved
Plaintiff can be appointed as receiver (under special after justification is not filed forthwith, the receiver shall
circumstances). be appointed or re-appointed, as the case may be.
- Mere fact that one is an interested party does
Effects of insufficiency of applicant’s or the receiver’s
not disqualify him.
bond
- If plaintiff becomes receiver ! not entitled to
A bond sufficient in amount with sufficient sureties
compensation but only recovery of expenses
approved must be filed ! else, application shall be
actually and necessarily incurred in caring for the
denied or receiver discharged.
property.
Of adverse parties bond
Sec. 3. Denial of application or discharge of receiver. Receiver shall be appointed or reappointed.
The application may be denied, or the receiver
discharged, when the adverse party files a bond executed Sec. 6. General powers of receiver.
to the applicant, in an amount to be fixed by the court, to Subject to the control of the court in which the action or
the effect that such party will pay the applicant all proceeding is pending, a receiver shall have the power to
damages he may suffer by reason of the acts, omissions, bring and defend, in such capacity, actions in his own
or other matters specified in the application as ground name; to take and keep possession of the property in
for such appointment. The receiver may also be controversy; to receive rents; to collect debts due to
discharged if it is shown that his appointment was himself as receiver or to the fund, property, estate,
obtained without sufficient cause. person, or corporation of which he is the receiver; to
compound for and compromise the same; to make
Ground for denial of application transfers; to pay outstanding debts; to divide the money
and other property that shall remain among the persons
When adverse party files a BOND legally entitled to receive the same; and generally to do
Executed to the applicant in an amount fixed by the such acts respecting the property as the court may
court, to the effect that such party will pay the applicant authorize. However, funds in the hands of a receiver may
all damages he may suffer by reason of the acts, be invested only by order of the court upon the written
omissions, or other matters specified in the application as consent of all the parties to the action.
ground for such appointment No action may be filed by or against a receiver without
If it is shown that the appointment of the receiver was leave of the court which appointed him.
obtained without sufficient cause
Section refers to GENERAL POWERS of a receiver.
When applicant’s bond insufficient and a bond with
sufficient sureties not filed forthwith.
Before a receiver enters in to a contract ! must obtain
the approval of the court.
Where one was not permitted to file a bond in
*unauthorized contracts – not binding on the court but
accordance with the rules ! appointment of receiver by
are his own contracts/obligations.
the court should be revoked because of lower court’s
grave abuse of discretion.
Leave of appointing court ! required before action may
Sec. 4. Oath and bond of receiver. be filed by or against the receiver.
Before entering upon his duties, the receiver shall be - Receiver is an officer of the court.
sworn to perform them faithfully, and shall file a bond, - Subject to the control of the court.
executed to such person and in such sum as the court - Receiver shall not be subject to any action for
may direct, to the effect that he will faithfully discharge any act done or omitted in good faith and in the
his duties in the action or proceeding and obey the orders exercise of his functions and powers.
of the court.
Those with claims against properties under receivership
Receiver’s bond ! answers for damages that may have
may prove their rights via:
been suffered by reason of the failure of the receiver to
By: RJ MARTINEZ Based on Feria & Noche Book
14 III – LLB, EH404, USC – College of Law
Provisional remedies & special civil actions
Reviewer
a. Motion or petition in the same proceeding in which receive them, and order the discharge of the receiver
the receiver discharges his duties from further duty as such. The court shall allow the
b. Complaint-in-intervention in accordance with Sec. 1 receiver such reasonable compensation as the
circumstances of the case warrant, to be taxed as costs
R19 against the defeated party, or apportioned, as justice
c. In case of claims against a corporation in the hands requires.
of a receiver, notice must be given to all parties-in-
interest who shall be given a reasonable opportunity If necessity for receiver no longer exists (as determined by
to present objections and submit evidence in the court motu propio or upon motion), the court shall,
support of such objections. after due notice and hearing:
a. Settle the accounts of the receiver
RECEIVER SHERIFF b. Direct the delivery of the funds and other property in
Special officer appointed Court officer of a general his possession to the person adjudged to be entitled
in relation to and within a character who is not to reeive them
certain case or action, and appointed for a certain c. Order the discharge of the receiver from further duty
whose duties are limited to judicial case. as such
his sphere of action and do d. Grant the receiver such reasonable compensation
not extend further than the Funds within his custody as the circumstances of the case warrant (to be
case in which he was may be within reach of taxed as costs against the defeated party or
appointed. processes coming from apportioned, as justice requires).
other judicial proceedings.
Those who have any claim GROUNDS FOR REMOVAL OF RECEIVER
to property or sums in the When he asserts ownership over the property in his hands
possession of a receiver, as receiver and refuses to submit any account of the
must appear in the same financial status of said property.
proceeding in which said *objection to accounts of receiver should be made
receiver was appointed. timely (i.e. objection after one year and after one has
received the share of the balance of the funds cannot
be allowed).
Sec. 7. Liability for refusal or neglect to deliver property
to receiver. Sec. 9. Judgment to include recovery against sureties.
A person who refuses or neglects, upon reasonable The amount, if any, to be awarded to any party upon any
demand, to deliver to the receiver all the property, bond filed in accordance with the provisions of this Rule,
money, books, deeds, notes, bills, documents and papers shall be claimed, ascertained, and granted under the
within his power or control, subject of or involved in the same procedure prescribed in section 20 of Rule 57.
action or proceeding, or in case of disagreement, as
determined and ordered by the court, may be punished Damages against the bond must be filed in the same
for contempt and shall be liable to the receiver for the action – else, BARRED!
money or the value of the property and other things so
refused or neglected to be surrendered, together with all
damages that may have been sustained by the party or i.e. where lessee suffered damage as a result of the
parties entitled thereto as a consequence of such refusal receivership over the leased property ! he should
or neglect. intervene in the receivership case (he cannot recover in
a separate action).
Person who refuses or neglects upon reasonable **but he can file a separate action for damages
demand, to deliver to the receiver property within his against the lessors based on the latter’s implied
power or control, subject of or involved in the action or warranty.
proceeding, or in case of disagreement, as determined
and ordered by the court, may be liable for: RULE 60
REPLEVIN
a. Contempt
b. For the money or the value of property and other Section 1. Application.
tings so refused or neglected to be surrendered A party praying for the recovery of possession of personal
c. All damages that may have been sustained by the property may, at the commencement of the action or at any
party or parties entitled to the property as a time before answer, apply for an order for the delivery of
such property to him, in the manner hereinafter provided.
consequence of such refusal or neglect
REPLEVIN – a provisional remedy that consists in the
Sec. 8. Termination of receivership; compensation of
receiver. delivery by the defendant, upon the order of the court, of
Whenever the court, motu proprio or on motion of either a personal property to the plaintiff, who shall give a bond
party, shall determine that the necessity for a receiver no to assure the return thereof or the payment of damages
longer exists, it shall, after due notice to all interested to the defendant if the plaintiff’s action to recover
parties and hearing, settle the accounts of the receiver, possession of the property fails.
direct the delivery of the funds and other property in his *protects the plaintiff’s right of possession of the personal
possession to the person adjudged to be entitled to
property
By: RJ MARTINEZ Based on Feria & Noche Book
15 III – LLB, EH404, USC – College of Law
Provisional remedies & special civil actions
Reviewer
*enforceable ANYWHERE in the Philippines. property, if it be in the possession of the adverse party, or his
agent, and retain it in his custody. If the property or any part
thereof be concealed in a building or enclosure, the sheriff
WHEN AVAILABLE must demand its delivery, and if it be not delivered, he must
a. At the commencement of the action cause the building or enclosure to be broken open and take
b. At any time before Answer the property into his possession. After the sheriff has taken
possession of the property as herein provided, he must keep
it in a secure place and shall be responsible for its delivery to
JURISDICTION
the party entitled thereto upon receiving his fees and
MTC – not more than P300K(Non-MM)/P400K(MM) necessary expenses for taking and keeping the same.
RTC – more than P300K(Non-MM)/P400K(MM).
Sheriff must serve a copy to AP (w/ copy of application,
Expenses of suit (sheriff’s fees, premium on the replevin affidavit, and bond).
bond) and Attorney’s fees in an ACTION FOR REPLEVIN Take the property.
recoverable directly from the mortgagor. Retain it in his custody.
*exclusive jurisdiction lies with RTC (incapable of 2. Accompanied by supporting affidavits, depositions,
pecuniary estimation). other authentic documents.
**in a criminal action within the jurisdiction of MTC and
civil liability is deemed instituted, the court may grant Sec. 3. Hearing.
After the comment is filed, or after the expiration of the
support to the child born to the offended party period for its filing, the application shall be set for hearing
because of the crime. not more than three (3) days thereafter. The facts in issue
shall be proved in the same manner as is provided for
SUPPORT COMPRISES EVERYTHING INDISPENSABLE FOR evidence on motions.
1. Sustenance
Hearing shall not be more than 3D from filing of the
2. Dwelling
comment/expiration of period for filing.
3. Clothing
To be RESOLVED in the same manner as is provided for
4. Medical
evidence on MOTIONS (not necessary to go into the
5. Education (schooling/training even beyond the
merits of the case/full hearing).
age of majority).
6. Transportation (going to and from school/place of Sec. 4. Order.
work). The court shall determine provisionally the pertinent facts,
*in keeping with the financial capacity of the family (in and shall render such orders as justice and equity may
proportion to the resources of the giver and the require, having due regard to the probable outcome of the
case and such other circumstances as may aid in the proper
necessities of the recipient). resolution of the question involved. If the application is
granted, the court shall fix the amount of money to be
provisionally paid or such other forms of support as should
PERSONS OBLIGED TO GIVE SUPPORT be provided, taking into account the necessities of the
a. Spouses applicant and the resources or means of the adverse party,
and the terms of payment or mode for providing the support.
b. Legitimate ascendants and descendants If the application is denied, the principal case shall be tried
c. Parents and their Legitimate Children and the and decided as early as possible.
Legitimate and Illegitimate children of the latter
d. Parents and their illegitimate children and the GRANTED DENIED
legitimate children and illegitimate children of the
latter Court shall fix:
e. Legitimate brothers and sisters, whether full or half- 1. Amount to be Principal action shall be
blood. provisionally paid or tried and decided as early
*According to the FC, legal separation cannot be tried such other forms of as possible.
for 6mos after its filing – but support pendent lite may be support, taking into
granted during the interregnum. account the necessities
of the applicant and
Support is demandable from the time the person who has the resources or means
a right to receive needs it for MAINTENANCE. of the AP.
But it shall not be paid except from the date of judicial or 2. The terms of payment or
EJ demand. mode of support.
*judgment for support is IMMEDIATELY ENFORCEABLE
(unless ordered otherwise). REMEDY (Adverse Decision)
Appeal cannot stay the enforcement. CERTIORARI/PROHIBITION may lie (2 reasons):
On appeal, the appellate court may make order 1. The court exceeds its jurisdiction (i.e. without hearing,
suspending, modifying, restoring, or granting the fixing exorbitant amount, not allowing defendant to
award. present evidence).
*SUPPORT shall be taken from the absolute community or 2. Appeal is not allowed (there is other speedy and
conjugal partnership (after final judgment – obligation of adequate remedy).
mutual support between the spouses ceases).
In legal separation – guilty spouse may be ordered to Sec. 5. Enforcement of order.
support the innocent one. If the adverse party fails to comply with an order granting
support pendente lite, the court shall, motu proprio or upon
Sec. 2. Comment. motion, issue an order of execution against him, without
A copy of the application and all supporting documents shall prejudice to his liability for contempt.
be served upon the adverse party, who shall have five (5) When the person ordered to give support pendente lite
days to comment thereon unless a different period is fixed by refuses or fails to do so, any third person who furnished that
the court upon his motion. The comment shall be verified support to the applicant may, after due notice and hearing in
and shall be accompanied by affidavits, depositions or other the same case, obtain a writ of execution to enforce his right
authentic documents in support thereof. of reimbursement against the person ordered to provide
such support.
AP is given 5D from service to COMMENT.
FAILURE TO COMPLY with order granting support:
Must be:
The court shall issue an order of execution
1. verified
By: RJ MARTINEZ Based on Feria & Noche Book
18 III – LLB, EH404, USC – College of Law
Provisional remedies & special civil actions
Reviewer
**if subject matter is for the performance of an obligation Section 1. Who may file petition.
Any person interested under a deed, will, contract or other
! RTC has jurisdiction (incapable of pecuniary
written instrument, whose rights are affected by a statute,
estimation). executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation
Sec. 2. Order. thereof, bring an action in the appropriate Regional Trial
Upon the filing of the complaint, the court shall issue an Court to determine any question of construction or validity
order requiring the conflicting claimants to interplead with arising, and for a declaration of his rights or duties,
one another. If the interests of justice so require, the court thereunder.
may direct in such order that the subject matter be paid or An action for the reformation of an instrument, to quiet title
delivered to the court. to real property or remove clouds therefrom, or to
consolidate ownership under Article 1607 of the Civil Code,
Sec. 3. Summons. may be brought under this Rule.
Summons shall be served upon the conflicting claimants,
together with a copy of the complaint and order. 2 REMEDIES (provided for in R63)
1. DECLARATORY RELIEF wherein the court may refuse
Sec. 4. Motion to dismiss.
Within the time for filing an answer, each claimant may file a to exercise the power to declare rights and to
motion to dismiss on the ground of impropriety of the construe instruments
interpleader action or on other appropriate grounds 2. SIMILAR REMEDIES wherein the court is bound to
specified in Rule 16. The period to file the answer shall be render judgment.
tolled and if the motion is denied, the movant may file his
answer within the remaining period, but which shall not be
less than five (5) days in any event, reckoned from notice of SUBJECT MATTER
denial. 1. Deed
2. Will
Grounds for M2D are same as in Rule 16 + Impropriety of 3. Contract or other written instrument
Interpleader. 4. Statute
5. Executive order
Sec. 5. Answer and other pleadings.
Each claimant shall file his answer setting forth his claim 6. Regulation
within fifteen (15) days from service of the summons upon 7. Ordinance
him, serving a copy thereof upon each of the other conflicting
claimants who may file their reply thereto as provided by PURPOSE – to ask the court to make a PROPER
these Rules. If any claimant fails to plead within the time
INTERPRETATION of a contract, NOT to ask for
herein fixed, the court may, on motion, declare him in
default and thereafter render judgment barring him from INJUNCTION, EXECUTION, or OTHER RELIEF BEYOND THE
any claim in respect to the subject matter. ADJUDICATION OF THE LEGAL rights which are the subject
The parties in an interpleader action may file counterclaims, of controversy between the parties.
cross-claims, third-party complaints and responsive **RELIEF is CONFINED to the ACTUAL CONTROVERSY
pleadings thereto, as provided by these Rules.
within the court’s jurisdiction.
Answer must be filed within 15D from service of summons. ***also adjudicates legal rights, duties, or status of the
- Failure to file Answer ! the court may render parties.
claimant in default and render judgment (motion ****RTC has EXCLUSIVE ORIGINAL JURISDICTION (not
is required). within the original jurisdiction of the Supreme Court
*defaulting claimant must be notified of the and the CA).
motion to declare him in default.
REQUISITES FOR DR TO LIE
Sec. 6. Determination. 1. There must be a JUSTICIABLE CONTROVERSY.
After the pleadings of the conflicting claimants have been Requisites:
filed, and pre-trial has been conducted in accordance with i. REAL PARTIES IN INTEREST who assert
the Rules, the court shall proceed to determine their
respective rights and adjudicate their several claims. adverse claims and present ripe issue.
ii. An ACTIVE ANTAGONISITIC ASSERTION of a
Sec. 7. Docket and other lawful fees, costs and litigation legal right on one side and a DENIAL
expenses as liens. THEREON on the other concerning a real
The docket and other lawful fees paid by the party who filed a
and not a mere theoretical question or
complaint under this Rule, as well as the costs and litigation
expenses, shall constitute a lien or charge upon the subject issue.
matter of the action, unless the court shall order otherwise. 2. The controversy must be BETWEEN PERSONS WHOSE
INTERESTS ARE ADVERSE.
By: RJ MARTINEZ Based on Feria & Noche Book
20 III – LLB, EH404, USC – College of Law
Provisional remedies & special civil actions
Reviewer
The party seeking declaratory relief must have LEGAL Solicitor General – CONSTITUTION/NATIONAL Laws
INTEREST IN THE CONTROVERSY. Prosecutor/City (Municipal/Provincial) Attorney – Validity
3. The issue must be RIPE FOR JUDICIAL of Local Government ORDINANCE.
DETERMINATION. *but the OSG is to be notified and entitled to be heard
when ordinance is alleged to be UNCONSTITUTIONAL.
SOME INSTANCES WHERE DR DOES NOT LIE
a. Judicial declaration of citizenship Sec. 5. Court action discretionary.
b. Establishing illegitimate/legitimate filiation Except in actions falling under the second paragraph of
section 1 of this Rule, the court, motu proprio or upon
c. Resolving a political question motion, may refuse to exercise the power to declare rights
d. Terms of ordinance are not doubtful/ambiguous and to construe instruments in any case where a decision
e. Where contract has already been breached would not terminate the uncertainty or controversy which
(ordinary remedies obtain) gave rise to the action, or in any case where the declaration
or construction is not necessary and proper under the
f. Moot and academic questions
circumstances.
GR: declaration must stand by itself ! NO EXECUTORY WHEN COURT MAY REFUSE WHEN COURT MAY RENDER
PROCESS follows as of course (as opposed to a regular JUDGMENT
judgment where there is executory or coercive relief). 1. Decision would not 1. Declaration will serve
- but still they must involve a real controversy and will terminate the a useful purpose I
have the effect of res judicata and bind the parties. uncertainty or clarifying and settling
EXC: the court can grant such affirmative relief as may controversy which the legal relations in
be warranted by the evidence when: gave rise to the issue
1. when the allegations in the complaint are action. 2. When declaration will
sufficient to make out a case for specific 2. Where the terminate and afford
performance or recovery of property declaration is not relief from the
2. defendant does not raise an issue in the trial necessary and proper uncertainty, insecurity,
court to challenge the remedy or form of the under the and controversy
action availed of. circumstances. giving rise to the
proceeding.
3rd party complaints do not lie in a case of Special Civil
Action for DR. Sec. 6. Conversion into ordinary action.
But, a COMPULSORY COUNTERCLAIM is not proscribed If before the final termination of the case, a breach or
" When based on or arising from the same violation of an instrument or a statute, executive order or
transaction, deed, or contract on which the regulation, ordinance, or any other governmental regulation
should take place, the action may thereupon be converted
petition is based.
into an ordinary action, and the parties shall be allowed to
file such pleadings as may be necessary or proper.
Sec. 2. Parties.
All persons who have or claim any interest which would be
affected by the declaration shall be made parties; and no
DR to be converted to an ORDINARY ACTION ! when
declaration shall, except as otherwise provided in these there is a breach/violation (i.e of the
Rules, prejudice the rights of persons not parties to the contract/law/ordinance) before the final termination of
action. the case.
*parties shall be allowed to file such pleadings as may
Necessary parties must be joined/impleaded (non-joinder be necessary and proper.
is not a jurisdictional defect but may be a ground for
dismissal, see Sec. 5).
No declaration shall affect/prejudice the rights of RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS
persons not parties to the action.
OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS
AND THE COMMISSION ON AUDIT
Sec. 3. Notice on Solicitor General.
In any action which involves the validity of a statute, Section 1. Scope.
executive order or regulation, or any other governmental This Rule shall govern the review of judgments and final
regulation, the Solicitor General shall be notified by the party orders or resolutions of the Commission on Elections and
assailing the same and shall be entitled to be heard upon the Commission on Audit.
such question.
Via Rule 65 (not R45 or appeal via Certiorari). thereof; otherwise, the Court may dismiss the petition
outright. The Court may also dismiss the petition if it was
Sec. 3. Time to file petition. filed manifestly for delay, or the questions raised are too
The petition shall be filed within thirty (30) days from notice unsubstantial to warrant further proceedings.
of the judgment or final order or resolution sought to be
reviewed. The filing of a motion for new trial or SC must find the petition sufficient in FORM and
reconsideration of said judgment or final order or SUBSTANCE.
resolution, if allowed under the procedural rules of the " If it is, then respondents shall be asked to file
Commission concerned, shall interrupt the period herein
fixed. If the motion is denied, the aggrieved party may file the Comment within 10D.
petition within the remaining period, but which shall not be
less than five (5) days in any event, reckoned from notice of Other Grounds for Dismissal by SC of Petition
denial. a. Not sufficient in form and substance
b. Filed manifestly for delay
To be filed within 30D from notice of judgment or final
c. Raises questions which are too unsubstantial to
order sought to be reviewed.
warrant further proceedings.
*if MNT or M4R is filed and denied ! petition shall be filed
within the remaining period BUT not less than 5D. Sec. 7. Comments of respondents.
The comments of the respondents shall be filed in eighteen
Sec. 4. Docket and other lawful fees. (18) legible copies. The original shall be accompanied by
Upon the filing of the petition, the petitioner shall pay to the certified true copies of such material portions of the record
clerk of court the docket and other lawful fees and deposit as are referred to therein together with other supporting
the amount of P500.00 for costs. papers. The requisite number of copies of the comments
shall contain plain copies of all documents attached to the
Sec. 5. Form and contents of petition. original and a copy thereof shall be served on the petitioner.
The petition shall be verified and filed in eighteen (18) legible No other pleading may be filed by any party unless required
copies. The petition shall name the aggrieved party as or allowed by the Court.
petitioner and shall join as respondents the Commission
concerned and the person or persons interested in No other pleading may be filed by any party unless the
sustaining the judgment, final order or resolution a quo. The
SC requires or allows the same.
petition shall state the facts with certainty, present clearly
the issues involved, set forth the grounds and brief
Sec. 8. Effect of filing.
arguments relied upon for review, and pray for judgment
The filing of a petition for certiorari shall not stay the
annulling or modifying the questioned judgment, final order
execution of the judgment or final order or resolution sought
or resolution. Findings of fact of the Commission supported
to be reviewed, unless the Supreme Court shall direct
by substantial evidence shall be final and non-reviewable.
otherwise upon such terms as it may deem just.
The petition shall be accompanied by a clearly legible
duplicate original or certified true copy of the judgment,
final order or resolution subject thereof, together with GR: Filing (only) of the petition shall not stay execution.
certified true copies of such material portions of the record EXC: where petitioner applies for a restraining order
as are referred to therein and other documents relevant and and preliminary injunction with the SC.
pertinent thereto. The requisite number of copies of the
petition shall contain plain copies of all documents attached Sec. 9. Submission for decision.
to the original copy of said petition. Unless the Court sets the case for oral argument, or requires
The petition shall state the specific material dates showing the parties to submit memoranda, the case shall be deemed
that it was filed within the period fixed herein, and shall submitted for decision upon the filing of the comments on
contain a sworn certification against forum shopping as the petition, or of such other pleadings or papers as may be
provided in the third paragraph of section 3, Rule 46. required or allowed, or the expiration of the period to do so.
The petition shall further be accompanied by proof of service
of a copy thereof on the Commission concerned and on the THE CASE IS CONSIDERED SUBMITTED FOR DECISION
adverse party, and of the timely payment of docket and other
lawful fees.
WHEN:
The failure of petitioner to comply with any of the foregoing a. Comments and such other pleadings or papers as
requirements shall be sufficient ground for the dismissal of may be required or allowed are filed
the petition. b. The period to file the aforementioned pleadings has
lapsed.
Commission concerned (COA/COMELEC) must be joined *SC may however set the case for oral argument or
as a party respondent in the petition along with the require parties to submit memoranda.
person/s interested in sustaining the judgment.
RULE 65
Findings of fact by the Commissions ! non-reviewable. CERTIORARI, PROHIBITION AND MANDAMUS
Failure to comply with any of the requirements provided Section 1. Petition for certiorari.
When any tribunal, board or officer exercising judicial or
for in Sec. 5 – ground for dismissal. quasi-judicial functions has acted without or in excess of its
or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no
Sec. 6. Order to comment. appeal, or any plain, speedy, and adequate remedy in the
If the Supreme Court finds the petition sufficient in form and ordinary course of law, a person aggrieved thereby may file a
substance, it shall order the respondents to file their verified petition in the proper court, alleging the facts with
comments on the petition within ten (10) days from notice certainty and praying that judgment be rendered annulling
or modifying the proceedings of such tribunal, board or - Where power is exercised in an arbitrary and
officer, and granting such incidental reliefs as law and justice despotic manner by reason of passion or
may require.
The petition shall be accompanied by a certified true copy of personal hostility.
the judgment, order or resolution subject thereof, copies of *when there is no law applicable ! TBO must
all pleadings and documents relevant and pertinent thereto, act in accordance with justice, reason, and
and a sworn certification of non-forum shopping as provided equity (otherwise, he acts with grave abuse of
in the third paragraph of section 3, Rule 46.
discretion).
CERTIORARI – a writ issued by a SUPERIOR court to an
3. THERE IS NO APPEAL OR ANY PLAIN, SPEEDY, AND
inferior court, board or officer [TBO] exercising judicial or
ADEQUATE [PSA] REMEDY IN THE ORDINARY COURSE
quasi-judicial functions whereby the record of a
OF LAW.
particular case is ordered to be elevated for review and
correction in matters of law.
No Appeal
- A prerogative writ (discretionary/never
a. When appeal does not lie (i.e. interlocutory
demandable as a matter of right).
order; decision of NLRC; direct contempt)
b. Right to appeal is lost (with or without
WHEN AVAILABLE (Instances)
appellant’s negligence) ! time to appeal
a. Motion for new trial wrongly denied.
has expired.
b. Petition for Probation denied.
c. Order granting execution pending appeal not
Not Adequate Remedy
founded on good reasons.
i.e.
d. Order is a patent nullity.
when order of execution already issued
interlocutory orders
where attachment has been wrongly levied
REQUISITES
*MERE AVAILABILITY of appeal will not make
1. TBO EXERCISES JUDICIAL/QUASI-JUDICIAL
an appeal an adequate remedy (and bar
FUNCTIONS.
certiorari).
The appeal must EQUALLY beneficial,
Judicial Function – presupposes the use of mental
speedy, and sufficient w/c will promptly
processes in the determination of law or fact, and
relieve petitioner of the injurious effects of
at times involves discretion as to how the power
the judgment or acts of the inferior TBO.
should be used.
BUT, Certiorari may be considered an
- To determine what the law is and what the
abandonment of appeal if there is
legal rights of the parties are with respect to a
incompatibility between the 2
matter in controversy.
remedies.
i.e. appeal on the decision of the
2. TBO ACTED WITHOUT OR IN EXCESS OF JURISDICTION
main case and a petition for certiorari
OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING
on the denial of a motion for new trial
TO LACK OR EXCESS OF JURISDICTION.
! ALLOWED!
Without Jurisdiction – when the court/TBO does is
Note:
not conferred with the general power to take
Certiorari (R65) cannot be made a substitute for an
cognizance of cases of the general class to which
appeal where the latter remedy is available (and equally
the particular case belongs and that its power has
beneficial, etc.)
not been properly invoked, or called into activity
i.e. it will not toll the running of the period to file an
(by filing appropriate pleading, etc.)
appeal/prevent judgment from becoming final.
*the allegations in the pleading must be
ACTIONABLE.
PRAYER in Certiorari
In Excess of Jurisdiction – when the TBO has
1. ANNULLING and MODIFYING the proceedings of the
jurisdiction (or its jurisdiction was properly invoked)
respondent TBO
but it has overstepped/transcended the same.
2. Granting such INCIDENTAL RELIEFS as law and justice
may require.
Grave Abuse of Discretion – when the act of the
i.e. court grants petition for certiorari AND directs
TBO was done in a capricious or whimsical
respondent court to dismiss the complaint.
exercise of judgment.
- Must be so patent and gross as to amount to an
ACCOMPANYING DOCUMENTS
evasion of a positive duty or to a virtual refusal to
1. Certified true copy of the judgment, order or
perform a duty enjoined by law.
resolution subject thereof
The petition shall also contain a sworn certification of non- ACCOMPANIED BY ! Petition for Non-Forum Shopping.
forum shopping as provided in the third paragraph of section
3, Rule 46.
GR: Administrative Remedies must be EXHAUSTED before
MANDAMUS – is a command employed to compel the mandamus is available.
performance, when refused, of a ministerial duty, this EXC:
being its chief use, and not a discretionary duty. a. If party is in ESTOPPEL.
*mandamus may lie even if duty is discretionary ! but i.e. if by his conduct he has led the other party
only to compel TCBOP to act and not to act in a to believe that immediate judicial recourse is
particular way. available and acceptable.
**there must be a clear and certain legal right for b. Where pure QUESTIONS OF LAW are raised.
mandamus to lie. ! Exhaustion would be futile in this case because
i.e. not a proper remedy to compel university to questions of this character cannot be decided
compel degree with honors. with finality by the administrative officer).
MANDAMUS PROHIBITION
DISCRETION/DISCRETIONARY MINISTERIAL Has for its object to compel Has for its object that of
That part of the judicial One as to which nothing is an inferior tribunal to preventing an inferior
function which decides left to the discretion of the comply with a function tribunal from executing or
questions arising in the trial person who must perform. which the law specially continuing to execute an
of a cause, according to prescribes as a duty act in excess of its
the particular A simple and definite duty resulting from its office, jurisdiction, when there is
circumstances of each arising under conditions when there is no other PSA no other PSA remedy in the
case, and as to which the admitted or proved to remedy. ordinary course of law.
judgment of the court is exist and imposed by law.
uncontrolled by fixed rules MANDAMUS INJUNCTION
of law. Essentially REMEDIAL. Essentially a preventive
OR Functions to set in motion remedy.
The power to act according and to compel action. Functions to restrain motion
to the dictates of one’s own An active remedy. and to enforce inaction.
judgment or conscience Changes the status of Conservative remedy.
and not controlled by the affairs and to substitute Preserves matters in status
judgment or conscience of action for inaction. quo.
others.
Sec. 4. When and where to file the petition. The petition
shall be filed not later than sixty (60) days from notice of the
judgment, order or resolution. In case a motion for
REQUISITES reconsideration or new trial is timely filed, whether such
1. WHEN ANY TCBOP UNLAWFULLY NEGLECTS THE motion is required or not, the petition shall be filed not later
PERFORMANCE OF AN ACT WHICH THE LAW than sixty (60) days counted from the notice of the denial of
SPECIFICALLY ENJOINS AS A DUTY RESULTING FROM the motion.
If the petition relates to an act or an omission of a municipal
AN OFFICE, TRUST, OR STATION. trial court or of a corporation, a board, an officer or a
i.e. to compel judge to issue order of execution person, it shall be filed with the Regional Trial Court
upon failure of defendant in FE/UD case to pay exercising jurisdiction over the territorial area as defined by
deposits or rentals on time after pendency of the Supreme Court. It may also be filed with the Court of
appeal. Appeals or with the Sandiganbayan, whether or not the same
is in aid of the courts appellate jurisdiction. If the petition
2. WHEN ANY TCBOP UNLAWFULLY EXCLUDES ANOTHER involves an act or an omission of a quasi-judicial agency,
FROM THE USE AND ENJOYMENT OF A RIGHT OR unless otherwise provided by law or these rules, the petition
OFFICE TO WHICH THE OTHER IS ENTITLED. shall be filed with and be cognizable only by the Court of
i.e. to compel reinstatement of officers illegally Appeals.
In election cases involving an act or an omission of a
removed.
municipal or a regional trial court, the petition shall be filed
3. THERE IS NO OTHER PSA REMEDY IN THE ORDINARY exclusively with the Commission on Elections, in aid of its
COURSE OF LAW. appellate jurisdiction.
PRAYER in Mandamus Within 60D from notice of judgment or order (or from
That judgment be rendered commanding the notice of the denial of M4R or MNT).
respondent, immediately or at some other time to be
specified by the court to: May be filed with:
1. Do the act required to be done to protect the rights a. RTC
of the petitioner Against lower courts, corporation, board, officer
2. Pay the damages sustained by the petitioner by or person which exercises functions within its
reason of the wrongful acts of the respondent. territorial area (writ may be enforced in any part
of the region).
upon complaint or otherwise he has good reason to position or franchise may be made parties, and their
believe that any case specified in the preceding section respective rights to such public office, position or
can be established by proof, must commence such action. franchise determined, in the same action.
Sec. 5. When an individual may commence such an Sec. 9. Judgment where usurpation found.
action. When the respondent is found guilty of usurping,
A person claiming to be entitled to a public office or intruding into, or unlawfully holding or exercising a
position usurped or unlawfully held or exercised by public office, position or franchise, judgment shall be
another may bring an action therefor in his own name. rendered that such respondent be ousted and altogether
excluded therefrom, and that the petitioner or relator, as
INDIVIDUAL may commence action in his own name ! the case may be, recover his costs. Such further judgment
may be rendered determining the respective rights in and
when he claims to be entitled to a public office or
to the public office, position or franchise of all the parties
position usurped or unlawfully held or exercised by to the action as justice requires.
another.
- If it be shown that the individual has no right to RELATOR – the person at whose requrest and upon whose
the office ! the action can be dismissed (no relation the Sol-Gen or public prosecutor brings an action
legal ground upon which the case may of QW with the permission of the court.
proceed).
*merely asserting a right to be APPOINTED is not The court will not pass upon the right of the defendant
enough. (respondent) if the plaintiff is unable to prove his right (the
case is dismissible under this ground – inability to show
Sec. 6. Parties and contents of petition against
right to the office).
usurpation.
When the action is against a person for usurping a public EXC: if the case was commenced by the Sol-Gen or
office, position or franchise, the petition shall set forth public prosecutor ! not necessary that there be a
the name of the person who claims to be entitled thereto, person claiming to be entitled to the office alleged
if any, with an averment of his right to the same and that to have been usurped.
the respondent is unlawfully in possession thereof. All
persons who claim to be entitled to the public office,
Sec. 10. Rights of persons adjudged entitled to public corporation, or may apportion the costs, as justice
office; delivery of books and papers; damages. requires.
If judgment be rendered in favor of the person averred in
the complaint to be entitled to the public office he may,
after taking the oath of office and executing any official RULE 67
bond required by law, take upon himself the execution of EXPROPRIATION
the office, and may immediately thereafter demand of the
respondent all the books and papers in the respondent’s Section 1. The complaint.
custody or control appertaining to the office to which the The right of eminent domain shall be exercised by the
judgment relates. If the respondent refuses or neglects to filing of a verified complaint which shall state with
deliver any book or paper pursuant to such demand, he certainty the right and purpose of expropriation,
may be punished for contempt as having disobeyed a describe the real or personal property sought to be
lawful order of the court. The person adjudged entitled to expropriated, and join as defendants all persons owning
the office may also bring action against the respondent to or claiming to own, or occupying, any part thereof or
recover the damages sustained by such person by reason interest therein, showing, so far as practicable, the
of the usurpation. separate interest of each defendant. If the title to any
property sought to be expropriated appears to be in the
IF ADJUDGED TO BE ENTITLED: Republic of the Philippines, although occupied by private
individuals, or if the title is otherwise obscure or
1. Take oath of office
doubtful so that the plaintiff cannot with accuracy or
2. Execute any bond required certainty specify who are the real owners, averment to
3. Take upon himself the execution of the office that effect shall be made in the complaint.
4. Demand from the respondent all book and papers
in his control appertaining to the office EXPROPRIATION (Eminent Domain) – refers to the power
*if respondent refuses -- contempt of a sovereign state to take or to authorize the taking of
any property within its jurisdiction for the public use
ACTUAL/COMPENSATORY damages may be granted in without the owner’s consent.
all election contests or in QW proceedings in - An inherent political right founded on common
accordance with law (Omnibus Election Code). necessity and interest.
- By delegation, may also be possessed by the
Sec. 11. Limitations. LGUs, other public entities, and public utilities.
Nothing contained in this Rule shall be construed to
- Necessity of a public charity/purpose must exist
authorize an action against a public officer or employee
for his ouster from office unless the same be commenced (essential requisite).
within one (1) year after the cause of such ouster, or the ! Necessity – a reasonable or practical
right of the petitioner to hold such office or position, necessity, not absolute, such as would
arose; nor to authorize an action for damages in combine the greatest benefit to the public
accordance with the provisions of the next preceding with the least inconvenience and expense to
section unless the same be commenced within one (1) the condemning party and property owner
year after the entry of the judgment establishing the
consistent with such benefit.
petitioner’s right to the office in question.
i.e. no necessity to expropriate land intended
QW (and claim for back salaries and damages) must be for the development of a university with an
filed within 1 year form the date the petitioner was ousted enrolment of 9000 students; no necessity to
from his position. expropriate when there is already a contract
EXC: where there was continued assurance from the bet. landowner and city.
government through its responsible officials that led - Property already devoted to public use may not
the petitioner to take his time and wait for the be subject to expropriation.
government to fulfill its commitment.
CONSTITUTIONAL LIMITATIONS
Resort to administrative remedies does not toll the running Due Process (Art. III, Sec. 1)
of the 1 year period. Just Compensation [JC] (Art. III, Sec. 9)
QW under election code must be filed within 10D after 2 STAGES IN ACTION FOR EXPROPRIATION
the proclamation of the results. 1. Determination of the authority of the plaintiff to
But the filing with COMELEC of petition to annul or to exercise the power of eminent domain and the
suspend the proclamation of any candidate suspends propriety of its exercise in the context of the facts
the running of the period to file an election protest or involved in the suit.
QW. " Ends with an order of condemnation or
dismissal of an action.
2. Determination by the court of the just compensation
Sec. 12. Judgment for costs. for the property sought to be taken (with the
In an action brought in accordance with the provisions of assistance of not more than 3 commissioners).
this Rule, the court may render judgment for costs
against either the petitioner, the relator, or the JURISDICTION ! RTC (incapable of pecuniary estimation
respondent, or the person or persons claiming to be a
– regardless of the value of the property).
By: RJ MARTINEZ Based on Feria & Noche Book
29 III – LLB, EH404, USC – College of Law
Provisional remedies & special civil actions
Reviewer
4. Property must be devoted to a public use or proceedings in the case. Evidence may be introduced by
otherwise informally appropriated or injuriously either party before the commissioners who are
affected authorized to administer oaths on hearings before them,
and the commissioners shall, unless the parties consent
5. Utilization of the property for public use must be in to the contrary, after due notice to the parties to attend,
such a way as to oust the owner and deprive him of view and examine the property sought to be expropriated
all beneficial enjoyment of the property. and its surroundings, and may measure the same, after
which either party may, by himself or counsel, argue the
PERIOD TO APPEAL case. The commissioners shall assess the consequential
No less than 2 appeals are allowed: damages to the property not taken and deduct from such
a. From the order of expropriation; and consequential damages the consequential benefits to be
derived by the owner from the public use or purpose of
b. From the order of the determining of JC. the property taken, the operation of its franchise by the
! RECORD ON APPEAL must be filed within 30D. corporation or the carrying on of the business of the
corporation or person taking the property. But in no case
Sec. 5. Ascertainment of compensation. shall the consequential benefits assessed exceed the
Upon the rendition of the order of expropriation, the consequential damages assessed, or the owner be
court shall appoint not more than three (3) competent deprived of the actual value of his property so taken.
and disinterested persons as commissioners to ascertain
and report to the court the just compensation for the Owner of the property entitled to recover
property sought to be taken. The order of appointment 1. Fair and full value of the lot (as of the time when
shall designate the time and place of the first session of
possession was actually taken)
the hearing to be held by the commissioners and specify
the time within which their report shall be submitted to 2. (Consequential DAMAGES + ATTORNEY’S FEES) less
the court. consequential BENEFITS, if any, on the aggregate
Copies of the order shall be served on the parties. Objections sum due to the owner from and after the date of
to the appointment of any of the commissioners shall be filed actual taking until payment is made.
with the court within ten (10) days from service, and shall be *but payment of interest on the amount is not
resolved within thirty (30) days after all the commissioners
shall have received copies of the objections. allowed for the period where owner received rentals
from the condemnor.
APPOINTMENT OF COMMISSIONERS ! upon rendition of
the order of expropriation. Commissioners may resort to their knowledge of the
*the 3 commissioners shall determine the JC for the elements which affect the assessment obtained from
property sought to be expropriated even if an appeal their view and examination of the property when
is taken on the order of expropriation. testimony as to value and damages is conflicting.
*but award must still be supported by evidence
MARKET VALUE – price which the property will bring when adduced at the hearings and made of record.
it is offered for sale by one who desires but is not obliged
Sec. 7. Report by commissioners and judgment
to sell it and is bought by one who is under no necessity
thereupon.
of having it. The court may order the commissioners to report when
*ergo, the landowner should not take advantage of any particular portion of the real estate shall have been
the necessity which prompts the government to buy passed upon by them, and may render judgment upon
neither should the government take advantage and such partial report, and direct the commissioners to
take the property at less than the price it is reasonably proceed with their work as to subsequent portions of the
worth. property sought to be expropriated, and may from time
to time so deal with such property. The commissioners
shall make a full and accurate report to the court of all
DETERMINATION OF JC – a JUDICIAL function. their proceedings, and such proceedings shall not be
" Executive/legislative may make the initial effectual until the court shall have accepted their report
determination but when a party claims violation and rendered judgment in accordance with their
of the guarantee in the Bill of Rights NO recommendations. Except as otherwise expressly
executive order or statute can mandate that its ordered by the court, such report shall be filed within
own determination shall prevail over the court’s sixty (60) days from the date the commissioners were
notified of their appointment, which time may be
findings.
extended in the discretion of the court. Upon the filing of
such report, the clerk of the court shall serve copies
Art. 1250 of NCC (extraordinary inflation) does not apply thereof on all interested parties, with notice that they are
to expropriation proceedings ! said article applies only allowed ten (10) days within which to file objections to
where the obligation arises from contract/agreement the findings of the report, if they so desire.
and NOT where it arises from LAW.
Commissioners cannot disregard the evidence and
Sec. 6. Proceedings by commissioners. substitute their opinion as to the value of the property.
Before entering upon the performance of their duties, the
commissioners shall take and subscribe an oath that they “GREAT WEIGHT” is to be given to the estimated value
will faithfully perform their duties as commissioners, made by the appraisers. Such will not be set aside, unless:
which oath shall be filed in court with the other
a. Error is plainly manifest
By: RJ MARTINEZ Based on Feria & Noche Book
31 III – LLB, EH404, USC – College of Law
Provisional remedies & special civil actions
Reviewer
b. It is apparent that injustice has been done payment of the sum or sums awarded to either the
c. Commissioners have clearly gone astray or adopted defendant or the court before the plaintiff can enter upon
erroneous principles the property, or retain it for the public use or purpose if
entry has already been made.
d. Commissioners acted upon wrong principles, or their
award is grossly inadequate Sec. 10. Rights of plaintiff after judgment and payment.
e. Award is palpably excessive or inadequate Upon payment by the plaintiff to the defendant of the
f. Award is grossly inadequate or unequal. compensation fixed by the judgment, with legal interest
thereon from the taking of the possession of the property,
Proceedings shall not be effectual until the court shall or after tender to him of the amount so fixed and
payment of the costs, the plaintiff shall have the right to
have accepted their report and rendered judgment in
enter upon the property expropriated and to appropriate
accordance with their recommendations. it for the public use or purpose defined in the judgment,
Report shall be filed within sixty (60) days from the date or to retain it should he have taken immediate possession
the commissioners were notified of their appointment, thereof under the provisions of section 2 hereof. If the
*may be extended in the discretion of the court. defendant and his counsel absent themselves from the
**interested parties, with notice, are allowed ten (10) court, or decline to receive the amount tendered, the
days within which to file objections to the findings of the same shall be ordered to be deposited in court and such
deposit shall have the same effect as actual payment
report.
thereof to the defendant or the person ultimately
Sec. 8. Action upon commissioners’ report. adjudged entitled thereto.
Upon the expiration of the period of ten (10) days
referred to in the preceding section, or even before the When title passes ! upon the payment of indemnity or
expiration of such period but after all the interested the compensation fixed by the judgment (with legal
parties have filed their objections to the report or their interest thereon from the taking of the possession of the
statement of agreement therewith, the court may, after property).
hearing, accept the report and render judgment in
accordance therewith; or, for cause shown, it may Sec. 11. Entry not delayed by appeal; effect of reversal.
recommit the same to the commissioners for further The right of the plaintiff to enter upon the property of the
report of facts; or it may set aside the report and appoint defendant and appropriate the same for public use or
new commissioners; or it may accept the report in part purpose shall not be delayed by an appeal from the
and reject it in part; and it may make such order or judgment. But if the appellate court determines that
render such judgment as shall secure to the plaintiff the plaintiff has no right of expropriation, judgment shall be
property essential to the exercise of his right of rendered ordering the Regional Trial Court to forthwith
expropriation, and to the defendant just compensation enforce the restoration to the defendant of the possession
for the property so taken. of the property, and to determine the damages which the
defendant sustained and may recover by reason of the
Where parties agree to the commissioner’s award ! possession taken by the plaintiff.
court has the duty to confirm the report (unless there
appears some reason touching the public interest). Receipt by defendant of compensation does not bar him
The court may diminish or increase the commission’s from filing an appeal.
amount of award when it is grossly excessive or generally " Plaintiff may execute the judgment once it is
insufficient (even if there appears to be no fraud or obtained but it must pay the value of the
prejudice on the part of the commissioners). property as assessed by the court.
*Acceptance by the landowner of the money
When court cannot approve the commissioner’s report, awarded is merely the consideration for the
the court is permitted to act upon the report in one of privilege accorded to the plaintiff to take the
several ways, at its own discretion: property from the owner before the final
a. When commissioners refuse to hear competent determination of the expropriation action.
evidence material to the case, then all the
evidence in the case would not be before the CONSIDERATIONS IN DETERMINING AMOUNT OF
court. DAMAGES DEFENDANT MAY RECOVER
b. If commissioners are charged of improper conduct, a. Loss resulting from the dispossession of the land
fraud, prejudice, and this charge is sustained. b. The loss resulting from the deprivation of the use and
c. When the commissioners have applied illegal occupation of the land
principles to the evidence submitted to them; or c. The expenses incurred during the pendency of the
they have used an improper rule of assessment in action, including attorney’s fees
arriving at the amount of the award. d. The destruction of buildings, canals, and growing
crops at the time of the occupation of the land by
Sec. 9. Uncertain ownership; conflicting claims. the plaintiff.
If the ownership of the property taken is uncertain, or e. All of the damages of whatever kind or character
there are conflicting claims to any part thereof, the court which the defendant may be able to prove and
may order any sum or sums awarded as compensation
which have been occasioned by virtue of the
for the property to be paid to the court for the benefit of
the person adjudged in the same proceeding to be institution of the action.
entitled thereto. But the judgment shall require the
By: RJ MARTINEZ Based on Feria & Noche Book
32 III – LLB, EH404, USC – College of Law
Provisional remedies & special civil actions
Reviewer
deceased owner of the persons holding prior encumbrances upon the property
property mortgaged or a part thereof, and when confirmed by an order of the
court, also upon motion, it shall operate to divest the
with the approval of the
rights in the property of all the parties to the action and
court to vest their rights in the purchaser, subject to such rights
e. The heir to whom the of redemption as may be allowed by law.
mortgaged property Upon the finality of the order of confirmation or upon the
has been adjudicated expiration of the period of redemption when allowed by
*where a 2nd mortgagee is not made a party to a law, the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the possession
proceeding to foreclose the 1st mortgage ! an
of the property unless a third party is actually holding the
independent foreclosure proceeding may be maintained same adversely to the judgment obligor. The said
against him by the creditor in the 1st mortgage, wherein purchaser or last redemptioner may secure a writ of
the court should require the 2nd mortgagee to redeem possession, upon motion, from the court which ordered
from the 1st within 3 months, under penalty of being the foreclosure.
debarred from the exercise of his right to redeem.
**failure to join subordinate lienholder or subsequent As also provided in the preceding section, in default of
purchaser or both ! the foreclosure is ineffective as payment by the debtor-mortgagor within the period
against them (there remains in their favor the specified ! plaintiff-mortgagee may move for the sale of
unforeclosed equity of redemption). the property.
BUT, the foreclosure is valid between the parties to
the suit. Notice of the Sale on Execution is required to be given to
***1st mortgagee may be joined as party defendant in the judgment-obligor ! under Sec. 15(d) R39.
the foreclosure action by the 2nd mortgagee ! BUT,
generally, the debt ifo the 1st mortgagee should already GROUNDS FOR SETTING ASIDE SALE
be due and demandable. Price is greatly inadequate as to shock the conscience or
" If the 1st mortgagee is not joined he may file a when there are additional circumstances against its
complaint-in-intervention (but even if he is not fairness.
joined or he does not intervene, the property *there must be showing that a better price can be
remains subject to his lien). obtained in the event of a regular sale.
Prohibition to enter into a 2nd mortgage without the MOTION FOR CONFIRMATION OF SALE
consent of the 1st mortgagee ! VALID! ! After the foreclosure sale (with notice to all the parties
*but a stipulation forbidding owners from alienating to the action).
the mortgaged immovable – void! ! Notice and Hearing are essential otherwise the
confirmation of sale is void!
Sec. 2. Judgment on foreclosure for payment or sale. Order of Confirmation ! cuts off all interests of the
If upon the trial in such action the court shall find the mortgagor in the property sold and vests them in the
facts set forth in the complaint to be true, it shall purchaser, subject to such rights of redemption as may
ascertain the amount due to the plaintiff upon the be allowed by law.
mortgage debt or obligation, including interest and other
*a final order (hence, appealable!)
charges as approved by the court, and costs, and shall
render judgment for the sum so found due and order that
the same be paid to the court or to the judgment obligee REMEDY AVAILABLE BEFORE FINALITY OF ORDER OF
within a period of not less than ninety (90) days nor more CONFIRMATION
than one hundred twenty (120) days from the entry of Equity of redemption ! the opportunity that the court
judgment, and that in default of such payment the may grant to the mortgage debtor, 2nd mortgagee, and
property shall be sold at public auction to satisfy the subsequent attaching creditor or purchaser to pay the
judgment.
proceeds of the sale (and prevent the confirmation of
the sale).
The court shall order the mortgagor to pay the sum due
*equity of redemption not affected by sale by
to the mortgagee/creditor for a period not less than 90D
mortgagee of the property before confirmation.
but not more than 120D from the entry of judgment.
" Sale of the property at public auction shall be
GR: in a judicial foreclosure, there is no right of
done in default of such payment within the
redemption.
specified period.
EXC: when the mortgagee is a bank, quasi-bank or
Sec. 3. Sale of mortgaged property; effect. trust entity, the mortgagor has a right of redemption
When the defendant, after being directed to do so as for both judicial and extra-judicial foreclosure of any
provided in the next preceding section, fails to pay the mortgage or real estate.
amount of the judgment within the period specified
therein, the court, upon motion, shall order the property RULES IN GENERAL BANKING LAW OF 2000 (where
to be sold in the manner and under the provisions of Rule
mortgagee is a banking or financial institution)
39 and other regulations governing sales of real estate
under execution. Such sale shall not affect the rights of MORTGAGOR: MORTGAGOR:
if the proceeds of the sale be sufficient therefor, there name of the mortgagor shall be cancelled, and a new one
being a rebate of interest where such rebate is proper. issued in the name of the purchaser.
Where a right of redemption exists, the certificate of title
If entire debt not yet due in the name of the mortgagor shall not be cancelled, but
Mortgagee may foreclose in case of default in any of the the certificate of sale and the order confirming the sale
installment/s ! he may foreclose as often as more of the shall be registered and a brief memorandum thereof
made by the registrar of deeds upon the certificate of
debt becomes due for principal/interest (upon motion). title. In the event the property is redeemed, the deed of
*if the property cannot be sold in portions ! entire redemption shall be registered with the registry of deeds,
property shall be ordered sold. and a brief memorandum thereof shall be made by the
- ENTIRE DEBT AND COSTS are then settled if the registrar of deeds on said certificate of title.
proceeds are sufficient (with a rebate of interest, If the property is not redeemed, the final deed of sale
if proper). executed by the sheriff in favor of the purchaser at the
foreclosure sale shall be registered with the registry of
Sec. 6. Deficiency judgment. deeds; whereupon the certificate of title in the name of
If upon the sale of any real property as provided in the the mortgagor shall be cancelled and a new one issued in
next preceding section there be a balance due to the the name of the purchaser.
plaintiff after applying the proceeds of the sale, the court,
upon motion, shall render judgment against the Sec. 8. Applicability of other provisions.
defendant for any such balance for which, by the record The provisions of sections 31, 32 and 34 of Rule 39 shall
of the case, he may be personally liable to the plaintiff, be applicable to the judicial foreclosure of real estate
upon which execution may issue immediately if the mortgages under this Rule insofar as the former are not
balance is all due at the time of the rendition of the inconsistent with or may serve to supplement the
judgment; otherwise, the plaintiff shall be entitled to provisions of the latter.
execution at such time as the balance remaining becomes
due under the terms of the original contract, which time RULE 69
shall be stated in the judgment. PARTITION
NO RECOVERY of deficiency before foreclosure sale (it is Section 1. Complaint in action for partition of real estate.
A person having the right to compel the partition of real
only after sale that we’ll know a deficiency exists). estate may do so as provided in this Rule, setting forth in
his complaint the nature and extent of his title and an
WHEN DEFICIENCY CANNOT BE DECREED adequate description of the real estate of which partition
a. When one mortgages his property to secure the is demanded and joining as defendants all other persons
debt of another without expressly assuming personal interested in the property.
liability for such debt.
b. Against non-resident defendant who fails to submit When necessary ! if the co-owners cannot agree on an
himself to the jurisdiction of the court. extra-judicial partition.
Sec. 2. Order for partition, and partition by agreement Sec. 5. Assignment or sale of real estate by
thereunder. commissioners.
If after the trial the court finds that the plaintiff has the When it is made to appear to the commissioners that the
right thereto, it shall order the partition of the real estate real estate, or a portion thereof, cannot be divided
among all the parties in interest. Thereupon the parties without prejudice to the interests of the parties, the court
may, if they are able to agree, make the partition among may order it assigned to one of the parties willing to take
themselves by proper instruments of conveyance, and the the same, provided he pays to the other parties such
court shall confirm the partition so agreed upon by all the amounts as the commissioners deem equitable, unless
parties, and such partition, together with the order of the one of the interested parties asks that the property be
court confirming the same, shall be recorded in the sold instead of being so assigned, in which case the court
registry of deeds of the place in which the property is shall order the commissioners to sell the real estate at
situated. public sale under such conditions and within such time as
A final order decreeing partition and accounting may be the court may determine.
appealed by any party aggrieved thereby.
PUBLIC SALE MANDATORY ! when one of the interested
ORDER OF PARTITION AND ACCOUNTING ! final order parties asks that the property be sold instead of assigned
(hence, appealable). to one of them.
Court must consider and respect the interests of all Claims for rents and profits must be set up in the action
parties and adopt that form of partition nearest to for partition ! else, they shall be BARRED!
absolute equity and most consonant with reason and *they are parts of a single cause of action for partition.
justice.
Sec. 9. Power of guardian in such proceedings.
By: RJ MARTINEZ Based on Feria & Noche Book
37 III – LLB, EH404, USC – College of Law
Provisional remedies & special civil actions
Reviewer
The guardian or guardian ad litem of a minor or person and personal property, in so far as the same may be
judicially declared to be incompetent may, with the applicable.
approval of the court first had, do and perform on behalf
of his ward any act, matter, or thing respecting the Rule 69 applies as well to personal property.
partition of real estate, which the minor or person If an actual partition of personal property cannot be
judicially declared to be incompetent could do in made, it will be sold under the direction of the court and
partition proceedings if he were of age or competent.
the proceeds divided among the owners after the
Similar to Sec. 14, Rule 67. necessary expenses have been deducted.
Demand is made on the lessee: Within ten (10) days from service of summons, the
1. To PAY or comply with conditions of the lease, defendant shall file his answer to the complaint and serve
AND a copy thereof on the plaintiff. Affirmative and negative
defenses not pleaded therein shall be deemed waived,
2. To VACATE within 15D in the case of land or 5D in except lack of jurisdiction over the subject matter. Cross-
case of buildings. claims and compulsory counterclaims not asserted in the
Demand is unnecessary, in the following: answer shall be considered barred. The answer to
Art. 1669. If the lease was made for a determinate counterclaims or cross-claims shall be served and filed
time, it ceases upon the day fixed, without the need within ten (10) days from service of the answer in which
of a demand. (1565) they are pleaded.
Art. 1687. If the period for the lease has not been
Sec. 7. Effect of failure to answer.
fixed, it is understood to be from year to year, if the
Should the defendant fail to answer the complaint within
rent agreed upon is annual; from month to month, if the period above provided, the court, motu proprio or on
it is monthly; from week to week, if the rent is motion of the plaintiff, shall render judgment as may be
weekly; and from day to day, if the rent is to be paid warranted by the facts alleged in the complaint and
daily. However, even though a monthly rent is paid, limited to what is prayed for therein. The court may in its
and no period for the lease has been set, the courts discretion reduce the amount of damages and attorney’s
may fix a longer term for the lease after the lessee fees claimed for being excessive or otherwise
has occupied the premises for over one year. If the unconscionable, without prejudice to the applicability of
rent is weekly, the courts may likewise determine a section 3 (c), Rule 9 if there are two or more defendants.
longer period after the lessee has been in possession Sec. 8. Preliminary conference; appearance of parties.
for over six months. In case of daily rent, the courts Not later than thirty (30) days after the last answer is
may also fix a longer period after the lessee has filed, a preliminary conference shall be held. The
stayed in the place for over one month. (1581a) provisions of Rule 18 on pre-trial shall be applicable to
the preliminary conference unless inconsistent with the
Notice to quit is necessary in provisions of this Rule.
Art. 1670. If at the end of the contract the lessee The failure of the plaintiff to appear in the preliminary
should continue enjoying the thing leased for fifteen conference shall be cause for the dismissal of his
complaint. The defendant who appears in the absence of
days with the acquiescence of the lessor, and unless the plaintiff shall be entitled to judgment on his
a notice to the contrary by either party has counterclaim in accordance with the next preceding
previously been given, it is understood that there is section. All cross-claims shall be dismissed.
an implied new lease, not for the period of the If a sole defendant shall fail to appear, the plaintiff shall
original contract, but for the time established in likewise be entitled to judgment in accordance with the
Articles 1682 and 1687. The other terms of the next preceding section. This procedure shall not apply
original contract shall be revived. (1566a) where one of two or more defendants sued under a
common cause of action who had pleaded a common
**Neither demand nor notice to quit is necessary in FE defense shall appear at the preliminary conference.
No postponement of the preliminary conference shall be
cases because the possession is illegal from the granted except for highly meritorious grounds and
beginning. without prejudice to such sanctions as the court in the
exercise of sound discretion may impose on the movant.
Sec. 3. Summary procedure.
Except in cases covered by the agricultural tenancy laws Sec. 9. Record of preliminary conference.
or when the law otherwise expressly provides, all actions Within five (5) days after the termination of the
for forcible entry and unlawful detainer, irrespective of preliminary conference, the court shall issue an order
the amount of damages or unpaid rentals sought to be stating the matters taken up therein, including but not
recovered, shall be governed by the summary procedure limited to:
hereunder provided. 1. Whether the parties have arrived at an amicable
Rules on Summary Procedure does not apply in the RTC. settlement, and if so, the terms thereof;
2. The stipulations or admissions entered into by the
Sec. 4. Pleadings allowed. parties;
The only pleadings allowed to be filed are the complaint, 3. Whether, on the basis of the pleadings and the
compulsory counterclaim and cross-claim pleaded in the stipulations and admissions made by the parties,
answer, and the answers thereto. All pleadings shall be judgment may be rendered without the need of further
verified. proceedings, in which event the judgment shall be
rendered within thirty (30) days from issuance of the
Sec. 5. Action on complaint. order;
The court may, from an examination of the allegations in 4. A clear specification of material facts which remain
the complaint and such evidence as may be attached controverted; and
thereto, dismiss the case outright on any of the grounds 5. Such other matters intended to expedite the
for the dismissal of a civil action which are apparent disposition of the case.
therein. If no ground for dismissal is found, it shall
forthwith issue summons. Sec. 10. Submission of affidavits and position papers.
Within ten (10) days from receipt of the order mentioned
Sec. 6. Answer. in the next preceding section, the parties shall submit the
affidavits of their witnesses and other evidence on the
factual issues defined in the order, together with their PRELIMINARY PROHIBITORY INJUNCTION ! may be
position papers setting forth the law and the facts relied granted in FE proceedings to prevent defendant from
upon by them. committing further acts of dispossession against the
Sec. 11. Period for rendition of judgment. plaintiff.
Within thirty (30) days after receipt of the affidavits and PRELIMINARY MANDATORY INJUNCTION ! may be
position papers, or the expiration of the period for filing granted in FE to restore possession to plaintiff.
the same, the court shall render judgment. *both may also be issued in UD cases.
However, should the court find it necessary to clarify
certain material facts, it may, during the said period, Sec. 16. Resolving defense of ownership.
issue an order specifying the matters to be clarified, and When the defendant raises the defense of ownership in
require the parties to submit affidavits or other evidence his pleadings and the question of possession cannot be
on the said matters within ten (10) days from receipt of resolved without deciding the issue of ownership, the
said order. Judgment shall be rendered within fifteen issue of ownership shall be resolved only to determine
(15) days after the receipt of the last affidavit or the the issue of possession.
expiration of the period for filing the same.
The court shall not resort to the foregoing procedure just SC Guidelines for Sec. 16
to gain time for the rendition of the judgment. 1. Principal issue must be that of possession (ownership
merely ancillary thereto and may be resolved only
Sec. 12. Referral for conciliation.
Cases requiring referral for conciliation, where there is for the purpose of determining the issue of
no showing of compliance with such requirement, shall possession).
be dismissed without prejudice, and may be revived only 2. It must sufficiently appear from the allegations that
after that requirement shall have been complied with. the plaintiff really and primarily seeks the restoration
of possession (where allegations clearly establish a
Sec. 13. Prohibited pleadings and motions. case for recover of ownership ! the action is not for
The following petitions, motions, or pleadings shall not FE but for title to real property)
be allowed:
1. Motion to dismiss the complaint except on the ground
3. Inferior court cannot adjudicate on the nature of
of lack of jurisdiction over the subject matter, or failure ownership where the relationship of lessor and lessee
to comply with section 12; has been sufficiently established in the ejectment
2. Motion for a bill of particulars; case (unless it is sufficiently established that there
3. Motion for new trial, or for reconsideration of a has been a subsequent change in or termination of
judgment, or for reopening of trial; that relationship between the parties.
4. Petition for relief from judgment; 4. Rule in FE, not in UD, is that a party who can prove
5. Motion for extension of time to file pleadings,
affidavits or any other paper;
prior possession and recover such possession even
6. Memoranda; against the owner himself.
7. Petition for certiorari, mandamus, or prohibition 5. Where the question of who has prior possession
against any interlocutory order issued by the court; hinges on the question of who the real owner of the
8. Motion to declare the defendant in default; disputed portion is, the inferior court may resolve the
9. Dilatory motions for postponement; issue of ownership and make a declaration as to
10. Reply; who among the contending parties is the real
11. Third-party complaints;
12. Interventions.
owner.
had in the court of origin and such memoranda and/or After the case is decided by the Regional Trial Court, any
briefs as may be submitted by the parties or required by money paid to the court by the defendant for purposes of
the Regional Trial Court. the stay of execution shall be disposed of in accordance
with the provisions of the judgment of the Regional Trial
Sub-lessees who have not been impleaded are affected Court. In any case wherein it appears that the defendant
by an order of eviction against the lessees ! their rights has been deprived of the lawful possession of land or
stand on the rights of the lessees. building pending the appeal by virtue of the execution of
the judgment of the Municipal Trial Court, damages for
*actually, ALL persons occupying the property with the such deprivation of possession and restoration of
consent of the defendant may be ejected (i.e his family, possession may be allowed the defendant in the judgment
servants, employees, and sub-lessees). of the Regional Trial Court disposing of the appeal.
- If defendant deposits in court the amount of prejudice to a further appeal that may be taken
back rentals or there are no rents and therefrom.
damages in arrears ! SB not necessary.
Prior notice of judgment required for immediate
PERIODICAL DEPOSITS ! anwer for the rentals under the execution of the judgment in RTC.
lease contract which may accrue during the pendency - Notice and proof of service must
of the appeal as determined in the judgment. accompany motion for execution of the
*in absence of contract (or expiry) ! reasonable value of judgment.
the use and occupation of the premises is that fixed by - Will enable the losing party to take any
the inferior court in the judgment. appropriate steps to protect his interests
when warranted (otherwise the entire
DAMAGES RECOVERABLE proceedings leading to the execution of the
Cannot refer to other damages which are foreign to the judgment may be nullified).
enjoyment or material possession of the property (atty’s RULE 71
fees not considered damages). CONTEMPT
If no rents or damages are fixed in the judgment ! Section 1. Direct contempt punished summarily.
payment or deposit not required during the pendency of A person guilty of misbehavior in the presence of or so
appeal. near a court as to obstruct or interrupt the proceedings
before the same, including disrespect toward the court,
offensive personalities toward others, or refusal to be
Plaintiff may withdraw rentals deposited in court if sworn or to answer as a witness, or to subscribe an
defendant agrees or does not object. affidavit or deposition when lawfully required to do so,
may be summarily adjudged in contempt by such court
If the issue of lack of jurisdiction is raised on appeal ! and punished by a fine not exceeding two thousand pesos
there is still need to follow the requirements of Sec.19. or imprisonment not exceeding ten (10) days, or both, if
it be a Regional Trial Court or a court of equivalent or
Sec. 20. Preliminary mandatory injunction in case of higher rank, or by a fine not exceeding two hundred
appeal. pesos or imprisonment not exceeding one (1) day, or
Upon motion of the plaintiff, within ten (10) days from both, if it be a lower court.
the perfection of the appeal to the Regional Trial Court,
the latter may issue a writ of preliminary mandatory CONTEMPT OF COURT ! a disobedience to the court by
injunction to restore the plaintiff in possession if the acting in opposition to its authority, justice, and dignity.
court is satisfied that the defendant’s appeal is frivolous - Willful disregard or disobedience of the court’s
or dilatory, or that the appeal of the plaintiff is prima orders which tends to bring the authority of the
facie meritorious.
court and the administration of law into disrepute
Art. 539. Every possessor has a right to be respected or in some manner to impede the de
in his possession; and should he be disturbed therein administration of justice.
he shall be protected in or restored to said
possession by the means established by the laws and Power to punish for contempt
the Rules of Court. Inherent in all courts ! because its existence is essential
A possessor deprived of his possession through to the preservation of order in judicial proceedings and
forcible entry may within ten days from the filing of to the enforcement of judgments, orders, and mandates
the complaint present a motion to secure from the of the courts, and, consequently, to the due
competent court, in the action for forcible entry, a administration of justice.
writ of preliminary mandatory injunction to restore Dual Aspect
him in his possession. The court shall decide the 1. Proper punishment of the guilty party for his
motion within thirty (30) days from the filing disrespect to the court
thereof. (446a) 2. His compulsory performance of some act or
Art. 1674. In ejectment cases where an appeal is duty required of him by the court and which
taken the remedy granted in Article 539, second he refuses to perform.
paragraph, shall also apply, if the higher court is
satisfied that the lessee's appeal is frivolous or CLASSES OF CONTEMPT
dilatory, or that the lessor's appeal is prima facie DIRECT INDIRECT
meritorious. The period of ten days referred to in - may be - may be
AS TO
said article shall be counted from the time the punished punished only
MANNER OF
appeal is perfected. (n) summarily. after written
COMMISSION
charge and
Sec. 21. Immediate execution on appeal to Court of due hearing.
Appeals or Supreme Court. CIVIL CRIMINAL
The judgment of the Regional Trial Court against the
- consists in failing AS TO NATURE - Conduct that is
defendant shall be immediately executory, without
to do something directed as
ordered to be against the of a person who, after being dispossessed or ejected from
done by a court authority and any real property by the judgment or process of any court
of competent jurisdiction, enters or attempts or induces
or a judge in a dignity of a
another to enter into or upon such real property, for the
civil case for the court or of a purpose of executing acts of ownership or possession, or
benefit of the judge acting in any manner disturbs the possession given to the
opposing party judicially, as in person adjudged to be entitled thereto;
therein. unlawfully (c) Any abuse of or any unlawful interference with the
- An offense assailing or processes or proceedings of a court not constituting
against the party discrediting the direct contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly,
in whose behalf authority and
to impede, obstruct, or degrade the administration of
the violated dignity of the justice;
order is made. court/judge, or (e) Assuming to be an attorney or an officer of a court,
- Defendant’s in doing a duly and acting as such without authority;
intent is forbidden act. (f) Failure to obey a subpoena duly served;
immaterial (GF - Intent is a (g) The rescue, or attempted rescue, of a person or
not a defense). necessary property in the custody of an officer by virtue of an order
or process of a court held by him.
element.
But nothing in this section shall be so construed as to
Proceedings for contempt ! are criminal in nature prevent the court from issuing process to bring the
(mode of procedure and rules of evidence similar with respondent into court, or from holding him in custody
criminal prosecutions). pending such proceedings.
*even when the acts complained of are incidents of civil
actions. In INDIRECT CONTEMPT – respondent is given an
opportunity to file a comment on the written charge and
Illustration: be heard.
Disrespectful language against a judge in a pleading *PERIOD TO FILE – to be fixed by the court.
presented in another court ! INDIRECT CONTEMPT (if it
were in the same court – direct!). GROUNDS
Characterizing injunction issued by SC as “unjust”; “has a) Misbehavior of an officer of a court in the
no legal nor factual basis” and “a miscarriage of justice” performance of his official duties or in his official
! DIRECT CONTEMPT. transactions;
Litigant’s request that judge inhibit himself ! NO i.e. sheriff, without excuse or justification ad with
CONTEMPT (when impelled by a justifiable apprehension gross negligence, failed to make a return of
and acting in a respectful manner). service of summons sent to him.
b) Disobedience of or resistance to a lawful writ,
Sec. 2. Remedy therefrom. process, order, or judgment of a court, including the
The person adjudged in direct contempt by any court may act of a person who, after being dispossessed or
not appeal therefrom, but may avail himself of the ejected from any real property by the judgment or
remedies of certiorari or prohibition. The execution of
process of any court of competent jurisdiction, enters
the judgment shall be suspended pending resolution of
such petition, provided such person files a bond fixed by or attempts or induces another to enter into or upon
the court which rendered the judgment and conditioned such real property, for the purpose of executing acts
that he will abide by and perform the judgment should of ownership or possession, or in any manner disturbs
the petition be decided against him. the possession given to the person adjudged to be
entitled thereto;
REMEDY FROM JUDGMENT (Direct Contempt) ! i.e. the order must be valid, legal, and lawful and
CERTIORARI or PROHIBITION with a STAY OF EXECUTION the act that the is forbidden or required to be
pending the resolution of the petition by the filing of a done in the order must be clearly and exactly
bond fixed by the court conditioned upon the defined.
performance of the judgment should the petition be *a bona fide misunderstanding of the terms of the
decided against petitioner. order/procedural rules should not immediately
cause the institution of contempt proceedings.
Sec. 3. Indirect contempt to be punished after charge and
*an erroneous judgment must be obeyed.
hearing.
After a charge in writing has been filed, and an *refusal to vacate does not constitute contempt
opportunity given to the respondent to comment thereon (BUT, re-entry is contemptuous).
within such period as may be fixed by the court and to be c) Any abuse of or any unlawful interference with the
heard by himself or counsel, a person guilty of any of the processes or proceedings of a court not constituting
following acts may be punished for indirect contempt: direct contempt under section 1 of this Rule;
(a) Misbehavior of an officer of a court in the i.e. interfering with the functions and duties of a
performance of his official duties or in his official
court appointee(i.e. receiver).
transactions;
(b) Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including the act
d) Any improper conduct tending, directly or indirectly, 1. An order or other formal charge by the court
to impede, obstruct, or degrade the administration of requiring the respondent to show cause why he
justice; should not be punished for contempt
Publication PENDING Suit – publications that tend *Applies only where the indirect contempt is
to impede, obstruct, embarrass, or influence the committed against a court or judge possessed
courts in administering justice in a pending suit or and clothed with contempt powers
proceeding constitute criminal contempt 2. A verified petition charging indirect contempt with
(summarily punishable). supporting particulars and certified true copies of
i.e. publication of a criticism of a party or of the the necessary documents.
court to a pending cause; criticism or comment *Applies if the contemptuous act was committed
that attempts to intimidate the members of the neither against a court nor a judicial officer with
Court and attacks the honesty and integrity of authority to punish contemptuous acts.
the court; publication of proceedings regarding
the suspension and disbarment/removal of Sec. 5. Where charge to be filed.
lawyers/judges. Where the charge for indirect contempt has been
committed against a Regional Trial Court or a court of
EXC: mere criticism or comment on the equivalent or higher rank, or against an officer appointed
correctness or wrongness, soundness or by it, the charge may be filed with such court. Where such
unsoundness of the decision of the court in a contempt has been committed against a lower court, the
pending case made in GF may be tolerated charge may be filed with the Regional Trial Court of the
(may enlighten the court and contribute to the place in which the lower court is sitting; but the
correction of an error committed). proceedings may also be instituted in such lower court
subject to appeal to the Regional Trial Court of such place
in the same manner as provided in section 2 of this Rule.
POST-LITIGATION Publication – fair criticism of the
court, its proceedings and its members, is WHERE FILED
allowed. a. Lower court (MTC) appealable to RTC
EXC: b. RTC/Court of equivalent or higher rank ! when
1. Where it tends to bring the court into committed against it, or an MTC, or against an
disrespect or scandalize it officer appointed by it (RTC).
2. Where there is a clear and present t danger
that the administration of justice would be Sec. 6. Hearing; release on bail.
impeded. If the hearing is not ordered to be had forthwith, the
e) Assuming to be an attorney or an officer of a court, respondent may be released from custody upon filing a
and acting as such without authority; bond, in an amount fixed by the court, for his appearance
f) Failure to obey a subpoena duly served; at the hearing of the charge. On the day set therefor, the
court shall proceed to investigate the charge and consider
g) The rescue, or attempted rescue, of a person or such comment, testimony or defense as the respondent
property in the custody of an officer by virtue of an may make or offer.
order or process of a court held by him.
i.e. taking away of personal property subject Court does not acquire jurisdiction to punish for indirect
matter of a levy on execution on attachment contempt when there is no charge and hearing i.e. there
from the sheriff. was no service of the charge and plea to be given an
opportunity to Answer was disregarded ! tantamount to
Sec. 4. How proceedings commenced. denial of due process.
Proceedings for indirect contempt may be initiated motu
proprio by the court against which the contempt was The court may motu propio institute proceedings for
committed by an order or any other formal charge
requiring the respondent to show cause why he should contempt ! necessary for the court’s own protection
not be punished for contempt. against the improper interference with the administration
In all other cases, charges for indirect contempt shall be of justice.
commenced by a verified petition with supporting Institution of charges by prosecuting offices ! NOT
particulars and certified true copies of documents or NECESSARY to hold person guilty of civil or criminal
papers involved therein, and upon full compliance with contempt (charge may be made by private person,
the requirements for filing initiatory pleadings for civil judge, or fiscal).
actions in the court concerned. If the contempt charges
arose out of or are related to a principal action pending *all that R71 requires is that there be:
in the court, the petition for contempt shall allege that 1. Charge (in writing duly filed in court)
fact but said petition shall be docketed, heard and 2. Opportunity to be heard (by himself/counsel)
decided separately, unless the court in its discretion
orders the consolidation of the contempt charge and the Sec. 7. Punishment for indirect contempt.
principal action for joint hearing and decision. If the respondent is adjudged guilty of indirect contempt
committed against a Regional Trial Court or a court of
2 MODES OF COMMENCING PROCEEDING FOR INDIRECT equivalent or higher rank, he may be punished by a fine
CONTEMPT not exceeding thirty thousand pesos or imprisonment not
exceeding six (6) months, or both. If he is adjudged guilty
of contempt committed against a lower court, he may be The judgment or final order of a court in a case of
punished by a fine not exceeding five thousand pesos or indirect contempt may be appealed to the proper court as
imprisonment not exceeding one (1) month, or both. If in criminal cases. But execution of the judgment or final
the contempt consists in the violation of a writ of order shall not be suspended until a bond is filed by the
injunction, temporary restraining order or status quo person adjudged in contempt, in an amount fixed by the
order, he may also be ordered to make complete court from which the appeal is taken, conditioned that if
restitution to the party injured by such violation of the the appeal be decided against him he will abide by and
property involved or such amount as may be alleged and perform the judgment or final order.
proved.
The writ of execution, as in ordinary civil actions, shall JUDGMENT/ACQUITTAL IN CONTEMPT CASE
issue for the enforcement of a judgment imposing a fine ! Not appealable.
unless the court otherwise provides. EXC: dismissal is a result of a motion to dismiss on a
jurisdictional ground (there has been no adjudication on
WHEN CONTEMPT IS FOR VIOLATION OF A WRIT OF
the merits of the charge).
INJUNCTION OR RESTRAINING ORDER ! Punishment may
also provide the complete restitution to the party injured Sec.12. Contempt against quasi-judicial entities.
of the property involved or such amount alleged and Unless otherwise provided by law, this Rule shall apply to
proved. contempt committed against persons, entities, bodies or
agencies exercising quasi-judicial functions, or shall have
WHEN JUDGMENT IMPOSES FINE ! writ of execution shall suppletory effect to such rules as they may have adopted
issue for its enforcement (unless court provides otherwise). pursuant to authority granted to them by law to punish
for contempt. The Regional Trial Court of the place
wherein the contempt has been committed shall have
DOUBLE JEOPARDY DOES NOT LIE jurisdiction over such charges as may be filed therefor.
Court that constitutes contempt proceedings (where the
contemptuous words/statements are sufficient for the
filing of a case for libel) is not precluded from instituting xx xxx xxx END xxx xxx xxx
BEFORE, DURING, or AFTER such proceeding from
prosecuting for LIBEL.
" NOR will the exercise of power to punish for This is a court of law, young man, not a court of justice.
contempt exclude the power to disbar. ~Oliver Wendell Holmes, Jr.