Remedial Law

REMEDIAL LAW REVIEWER
Part VI of IX
SPECIAL CIVIL ACTIONS

I. Civil Procedure
A. Special Civil Actio! "Rule #$%&'(
'. Iterpleader
a. Defiitio
A person who has property in his possession or an
obligation to render, wholly or partially without claiming
any right therein, or an interest in which in whole or in part
is not disputed by the claimants, comes to court and asks
that the persons who consider themselves entitled to
demand compliance with the obligation be required to
litigate among themselves in order to determine finally
who is entitled to the same.
). Rule #$
General Procedure in Interpleader
.1 complaint for interpleader is filed
. court issues order requiring the claimants to interplead
.! summons served on the claimants
." claimants may file #t$ on the unique ground of
impropriety of interpleader action, #t$ tolls period to
file answer
.% court resolves #t$& claimant has remaining period to
file answer or at least % days from notice of denial
.' claimants file answer within 1% days from receipt of
summons
.( opposing claimants may file a reply
.) pre*trial
.+ court ,determine-s. their respective rights and
ad/udicate their several claims0
Sectio '. When interpleader proper. * W+eever
coflicti, clai-! upo t+e !a-e !u).ect -atter are or
-a/ )e -ade a,ai!t a per!o 0+o clai-! o itere!t
0+atever i t+e !u).ect -atter1 or a itere!t 0+ic+ i
0+ole or i part i! ot di!puted )/ t+e clai-at!1 +e
-a/ )ri, a actio a,ai!t t+e coflicti, clai-at! to
co-pel t+e- to iterplead ad liti,ate t+eir !everal
clai-! a-o, t+e-!elve!. "'a1 R#2(
1ote that the plaintiff need not wait for each defendant to
make a formal demand. It is enough that a claim may be
made by such defendants.
Sec. $. Order. * 3po t+e fili, of t+e co-plait1
t+e court !+all i!!ue a order re4uiri, t+e coflicti,
clai-at! to iterplead 0it+ oe aot+er. If t+e
itere!t! of .u!tice !o re4uire1 t+e court -a/ direct i
!uc+ order t+at t+e !u).ect -atter )e paid or delivered
to t+e court. "$a1 R#2(
Sec. 2. Summons. * Su--o! !+all )e !erved
upo t+e coflicti, clai-at!1 to,et+er 0it+ a cop/ of
t+e co-plait ad order. "21 R#2(
1ote that the plaintiff does not furnish the defendant
copies of his complaint. 2e need only file his complaint
with the court. It is the responsibility of the court to issue
the summons and to serve a copy of the complaint.
Sec. 5. Motion to dismiss. * Wit+i t+e ti-e for
fili, a a!0er1 eac+ clai-at -a/ file a -otio to
di!-i!! o t+e ,roud of i-propriet/ of t+e
iterpleader actio or o ot+er appropriate ,roud!
!pecified i Rule '# -motion to dismiss.. T+e period to
file t+e a!0er !+all )e tolled ad if t+e -otio i!
deied1 t+e -ovat -a/ file +i! a!0er 0it+i t+e
re-aii, period1 )ut 0+ic+ !+all ot )e le!! t+a five
"6( da/! i a/ evet1 rec7oed fro- otice of deial.
"(
3he defendants must file their answer within the standard
1% days from receipt of the summons.
Sec. 6. Answer and other pleadings. * Eac+
clai-at !+all file +i! a!0er !etti, fort+ +i! clai-
0it+i fiftee "'6( da/! fro- !ervice of t+e !u--o!
upo +i-1 !ervi, a cop/ t+ereof upo eac+ of t+e
ot+er coflicti, clai-at! 0+o -a/ file t+eir repl/
t+ereto a! provided )/ t+e!e Rule!. If a/ clai-at fail!
to plead 0it+i t+e ti-e +erei fi8ed1 t+e court -a/1 o
-otio1 declare +i- i default ad t+ereafter reder
.ud,-et )arri, +i- fro- a/ clai- i re!pect to t+e
!u).ect -atter.
T+e partie! i a iterpleader actio -a/ file
couterclai-!1 cro!!%clai-!1 t+ird%part/ co-plait!
ad re!po!ive pleadi,! t+ereto1 a! provided )/ t+e!e
Rule!. "5a1 R#2(
Sec. #. Determination. * After t+e pleadi,! of t+e
coflicti, clai-at! +ave )ee filed1 ad pre%trial +a!
)ee coducted i accordace 0it+ t+e Rule!1 t+e court
!+all proceed to deter-ie t+eir re!pective ri,+t! ad
ad.udicate t+eir !everal clai-!. "6a1 R#2(
Sec. &. Docket and other lawful fees, costs and
litigation expenses as liens. * T+e doc7et ad ot+er
la0ful fee! paid )/ t+e part/ 0+o filed a co-plait
uder t+i! Rule1 a! 0ell a! t+e co!t! ad liti,atio
e8pe!e!1 !+all co!titute a lie or c+ar,e upo t+e
!u).ect -atter of t+e actio1 ule!! t+e court !+all
order ot+er0i!e. "#a1 R#2(
c. Ca!e!
Mesina v. IAC, 1"% 456A "+( -1+)'.
7acts8 Go9s lost check was presented for payment by
#esina. 5heck was dishonored. #esina now claims from
the drawer bank. :ank files action for interpleader naming
Go and #esina as respondents. 5ourt orders respondents
to file their answers.
2eld8 Interpleader was a proper remedy. An order to file an
answer is proper and equivalent to an order to interplead.
7ailure to file an answer results in the party being declared
in default.
$. Declarator/ Relief ad Si-ilar Re-edie!
General Procedure in $eclaratory 6elief
a. Rule #2
Sectio '. Who may file petition. * A/ per!o
itere!ted uder a deed1 0ill1 cotract or ot+er 0ritte
i!tru-et1 0+o!e ri,+t! are affected )/ a !tatute1
e8ecutive order or re,ulatio1 ordiace1 or a/ ot+er
,over-etal re,ulatio -a/1 )efore )reac+ or
violatio t+ereof1 )ri, a actio i t+e appropriate
Re,ioal Trial Court to deter-ie a/ 4ue!tio of
co!tructio or validit/ ari!i,1 ad for a declaratio of
+i! ri,+t! or dutie!1 t+ereuder.
A actio for t+e refor-atio of a i!tru-et1 to
4uiet title to real propert/ or re-ove cloud! t+erefro-1
or to co!olidate o0er!+ip uder Article '#9& of t+e
Civil Code1 -a/ )e )rou,+t uder t+i! Rule. "'a1 R#5(
6equisites for declaratory relief
.1 plaintiff is interested under a deed, will, contract or
other written instrument
. plaintiff9s rights are affected by a statute, e;ecutive
order or regulation, ordinance, or any other
governmental regulation
.! before breach or violation thereof
." bring an action in the appropriate 635
.% purpose is
.a to determine any question of construction or
validity arising thereunder, and
.b for a declaration of his rights or duties thereunder
An action for declaratory relief may also be brought for the
reformation of an instrument, to quiet title to real property
or remove clouds therefrom, or to consolidate ownership.
3o register his title to real property bought with a right of
redemption, the buyer must file an action for declaratory
relief. cf Art. 1'<( and 1'1' 155
Art. 1'<(. In case of real property, the
consolidation of ownership in the vendee
by virtue of the failure of the vendor to
comply with the provisions of article
1'1' shall not be recorded in the
6egistry of Property without a /udicial
order, after the vendor has been duly
heard. -n.
Art. 1'1'. 3he vendor cannot avail
himself of the right of repurchase
without returning to the vendee the price
of the sale, and in addition8
-1. 3he e;penses of the contract, and
any other legitimate payments made by
reason of the sale&
-. 3he necessary and useful e;penses
made on the thing sold. -1%1).
Sec. $. Parties. * All per!o! 0+o +ave or clai-
a/ itere!t 0+ic+ 0ould )e affected )/ t+e declaratio
!+all )e -ade partie!: ad o declaratio !+all1 e8cept
a! ot+er0i!e provided i t+e!e Rule!1 pre.udice t+e
ri,+t! of per!o! ot partie! to t+e actio. "$a1 R#5(
Sec. 2. otice on Solicitor !eneral. * I a/ actio
0+ic+ ivolve! t+e validit/ of a !tatute1 e8ecutive order
or re,ulatio1 or a/ ot+er ,over-etal re,ulatio1
t+e Solicitor ;eeral !+all )e otified )/ t+e part/
a!!aili, t+e !a-e ad !+all )e etitled to )e +eard
upo !uc+ 4ue!tio. "2a1 R#5(
Sec. 5. "ocal go#ernment ordinances. * I a/
actio ivolvi, t+e validit/ of a local ,over-et
ordiace1 t+e corre!podi, pro!ecutor or attore/ of
t+e local ,over-etal uit ivolved !+all )e !i-ilarl/
otified ad etitled to )e +eard. If !uc+ ordiace i!
alle,ed to )e uco!titutioal1 t+e Solicitor ;eeral
!+all al!o )e otified ad etitled to )e +eard. "5a1 R#5(
Sec. 6. $ourt action discretionary. * E8cept i
actio! falli, uder t+e !ecod para,rap+ of !ectio '
of t+i! Rule1 t+e court1 -otu proprio or upo -otio1
-a/ refu!e to e8erci!e t+e po0er to declare ri,+t! ad
to co!true i!tru-et! i a/ ca!e 0+ere a deci!io
0ould ot ter-iate t+e ucertait/ or cotrover!/
0+ic+ ,ave ri!e to t+e actio1 or i a/ ca!e 0+ere t+e
declaratio or co!tructio i! ot ece!!ar/ ad proper
uder t+e circu-!tace!. "6a1 R#5(
Grounds for the court to refuse to e;ercise declaratory
relief
.1 a decision would not terminate the uncertainty or
controversy which gave rise to the action, or
. the declaration or construction is not necessary and
proper under the circumstances.
Sec. #. $on#ersion into ordinary action. * If )efore
t+e fial ter-iatio of t+e ca!e1 a )reac+ or violatio
of a i!tru-et or a !tatute1 e8ecutive order or
re,ulatio1 ordiace1 or a/ ot+er ,over-etal
re,ulatio !+ould ta7e place1 t+e actio -a/ t+ereupo
)e coverted ito a ordiar/ actio1 ad t+e partie!
!+all )e allo0ed to file !uc+ pleadi,! a! -a/ )e
ece!!ar/ or proper. "#a1 R#5(
=rdinary civil action > plaintiff alleges that his right has
been violated by the defendant& /udgment rendered is
coercive in character& a writ of e;ecution may be e;ecuted
against the defeated party
Remedial Law Reviewer, Part VI of IX - 2 -
4pecial civil action of declaratory relief > an impending
violation is sufficient to file a declaratory relief& no
e;ecution may be issued& the court merely makes a
declaration
). Ca!e!
Edades v. Edades, ++ Phil '(% -1+%'. 3he determination of
hereditary rights in the estate of a living person is not a
proper sub/ect of an action for declaratory relief. 3he
remedy is declaratory relief for declaration of filiation.
Santos v. Aquino, +" Phil '% -1+%!. $eclaratory relief for
construction is not a proper remedy where the terms of the
questioned ordinance are are clear and unambiguous. 3he
remedy of declaratory relief for invalidity is precluded by a
breach -e.g. the ta; imposed by the questioned ordinance is
already due when the case was filed.. 7inally, an action for
declaratory relief must also be brought by a real party in
interest.
de ?eon8 2ad the case been filed before the ta;es became
due, the action would have been converted into an ordinary
civil action.
Gomez v. Palomar, % 456A )( -1+'). A requisite for
declaratory relief for invalidity is that it must have been
brought before a breach or violation. 5onversion into a
civil action applies only if the breach occurs after the filing
of the action but before the termination thereof.
Matalin Coconut v. Municipality of Malabang, 1"! 456A
"<" -1+)'. @here a ta; imposed by the questioned
ordinance was paid under protest, there is no breach, and
hence declaratory relief still lies. In any case, declaratory
relief is proper as to future ta;es that may be imposed.
de ?eon8 5ould not the plaintiffs in Santos and Gomez
claim that their action for declaratory relief claim that their
action for declaratory relief is proper for future ta;es to be
imposed or future stamps to be requiredA
2. Revie0 of <ud,-et! ad =ial Order! or
Re!olutio! of t+e Co--i!!io o
Electio! ad t+e Co--i!!io o Audit
"Rule #5(
General Procedure in 6eview of 5=#B?B5 and 5oA
decisions
Sectio '. Scope. * T+i! Rule !+all ,over t+e
revie0 of .ud,-et! ad fial order! or re!olutio! of
t+e Co--i!!io o Electio! ad t+e Co--i!!io o
Audit. "(
1ote that despite 4ec. (, Art. IC*A of the 1+)(
5onstitution,
4ection (. ;;; Dnless otherwise
provided by this 5onstitution or by law,
any decision, order, or ruling of each
5ommission may be brought to the
4upreme 5ourt on certiorari by the
aggrieved party within thirty days from
receipt of a copy thereof.
appeals from decisions of the 5ivil 4ervice 5ommission
are now brought to the 5A by law -6A (+< which took
effect on 7ebruary 1++%. via petition for review under
6ule "!.
Sec. $. Mode of re#iew. * A .ud,-et or fial
order or re!olutio of t+e Co--i!!io o Electio! ad
t+e Co--i!!io o Audit -a/ )e )rou,+t )/ t+e
a,,rieved part/ to t+e Supre-e Court o certiorari
uder Rule #61 e8cept a! +ereiafter provided. "(
Sec. 2. %ime to file petition. * T+e petitio !+all )e
filed 0it+i t+irt/ "29( da/! fro- otice of t+e
.ud,-et or fial order or re!olutio !ou,+t to )e
revie0ed. T+e fili, of a -otio for e0 trial or
reco!ideratio of !aid .ud,-et or fial order or
re!olutio1 if allo0ed uder t+e procedural rule! of t+e
Co--i!!io cocered1 !+all iterrupt t+e period
+erei fi8ed. If t+e -otio i! deied1 t+e a,,rieved
part/ -a/ file t+e petitio 0it+i t+e re-aii, period1
)ut 0+ic+ !+all ot )e le!! t+a five "6( da/! i a/
evet1 rec7oed fro- otice of deial. "(
1ote that petition for review from decisions of quasi*
/udicial agencies to the 5A should be within 1% days and
does not stay the decision appealed.
Petition for review from decisions of the 635 decided in
its appellate /urisdiction filed to the 5A should be filed
within 1% days and stays e;ecution, unless the case is
under the rules of 4ummary Procedure.
4pecial civil actions of certiorari, prohibition, and
mandamus, from 5omelec and 5oA should be filed within
!< days, and does not stay the decision appealed.
:ottomline8 $ecisions of quasi*/udicial bodies are not
stayed by appeal alone. $ecisions of regular courts are
stayed on appeal -de ?eon8 3hough in petition for review
on certiorari to the 45 via 6ule "%, there is no e;press
provision on effect of appeal on e;ecution..
de ?eon8 3he ,not less than % days0 provision for filing a
pleading applies only to
.1 filing an answer after a denial of a #t$
. filing an answer after denial or service of a bill of
particulars
.! filing an special civil action for certiorari from a
decision of the 5omelec or 5oA after denial of a #f6
or #13
It does not apply to filing appeal from decisions of other
entities after denial of a #f6 or #13. In such cases, either
the parties have a fresh 1% days, or the balance.
Sec. 5. Docket and other lawful fees. * 3po t+e
fili, of t+e petitio1 t+e petitioer !+all pa/ to t+e
cler7 of court t+e doc7et ad ot+er la0ful fee! ad
depo!it t+e a-out of P699.99 for co!t!. "(
Sec. 6. &orm and contents of petition. * T+e
petitio !+all )e verified ad filed i ei,+tee "'>(
le,i)le copie!. T+e petitio !+all a-e t+e a,,rieved
part/ a! petitioer ad !+all .oi a! re!podet! t+e
Co--i!!io cocered ad t+e per!o or per!o!
itere!ted i !u!taii, t+e .ud,-et1 fial order or
re!olutio a 4uo. T+e petitio !+all !tate t+e fact! 0it+
certait/1 pre!et clearl/ t+e i!!ue! ivolved1 !et fort+
t+e ,roud! ad )rief ar,u-et! relied upo for
revie01 ad pra/ for .ud,-et aulli, or -odif/i,
t+e 4ue!tioed .ud,-et1 fial order or re!olutio.
=idi,! of fact of t+e Co--i!!io !upported )/
!u)!tatial evidece !+all )e fial ad o%revie0a)le.
T+e petitio !+all )e acco-paied )/ a clearl/
le,i)le duplicate ori,ial or certified true cop/ of t+e
.ud,-et1 fial order or re!olutio !u).ect t+ereof1
to,et+er 0it+ certified true copie! of !uc+ -aterial
portio! of t+e record a! are referred to t+erei ad
ot+er docu-et! relevat ad pertiet t+ereto. T+e
re4ui!ite u-)er of copie! of t+e petitio !+all cotai
plai copie! of all docu-et! attac+ed to t+e ori,ial
cop/ of !aid petitio.
T+e petitio !+all !tate t+e !pecific -aterial date!
!+o0i, t+at it 0a! filed 0it+i t+e period fi8ed +erei1
ad !+all cotai a !0or certificatio a,ai!t foru-
!+oppi, a! provided i t+e t+ird para,rap+ of !ectio
21 Rule 5#.
T+e petitio !+all furt+er )e acco-paied )/ proof
of !ervice of a cop/ t+ereof o t+e Co--i!!io
cocered ad o t+e adver!e part/1 ad of t+e ti-el/
pa/-et of doc7et ad ot+er la0ful fee!.
T+e failure of petitioer to co-pl/ 0it+ a/ of t+e
fore,oi, re4uire-et! !+all )e !ufficiet ,roud for
t+e di!-i!!al of t+e petitio. "(
Going to the 45, always 1) copies. Going to the 5A,
always ( copies.
3he petitioner must also file a certification against forum*
shopping.
Sec. #. Order to comment. * If t+e Supre-e Court
fid! t+e petitio !ufficiet i for- ad !u)!tace1 it
!+all order t+e re!podet! to file t+eir co--et! o
t+e petitio 0it+i te "'9( da/! fro- otice t+ereof:
ot+er0i!e1 t+e Court -a/ di!-i!! t+e petitio outri,+t.
T+e Court -a/ al!o di!-i!! t+e petitio if it 0a! filed
-aife!tl/ for dela/1 or t+e 4ue!tio! rai!ed are too
u!u)!tatial to 0arrat furt+er proceedi,!. "(
Sec. &. $omments of respondents. * T+e co--et!
of t+e re!podet! !+all )e filed i ei,+tee "'>( le,i)le
copie!. T+e ori,ial !+all )e acco-paied )/ certified
true copie! of !uc+ -aterial portio! of t+e record a!
are referred to t+erei to,et+er 0it+ ot+er !upporti,
paper!. T+e re4ui!ite u-)er of copie! of t+e
co--et! !+all cotai plai copie! of all docu-et!
attac+ed to t+e ori,ial ad a cop/ t+ereof !+all )e
!erved o t+e petitioer.
No ot+er pleadi, -a/ )e filed )/ a/ part/ ule!!
re4uired or allo0ed )/ t+e Court. "(
Sec. >. 'ffect of filing. * T+e fili, of a petitio for
certiorari !+all ot !ta/ t+e e8ecutio of t+e .ud,-et
or fial order or re!olutio !ou,+t to )e revie0ed1
ule!! t+e Supre-e Court !+all direct ot+er0i!e upo
!uc+ ter-! a! it -a/ dee- .u!t. "(
Sec. ?. Su(mission for decision. * 3le!! t+e Court
!et! t+e ca!e for oral ar,u-et1 or re4uire! t+e partie!
to !u)-it -e-orada1 t+e ca!e !+all )e dee-ed
!u)-itted for deci!io upo t+e fili, of t+e co--et!
o t+e petitio1 or of !uc+ ot+er pleadi,! or paper! a!
-a/ )e re4uired or allo0ed1 or t+e e8piratio of t+e
period to do !o. "(
5. Certiorari1 Pro+i)itio ad Mada-u!
a. Defiitio!
without /urisdiction > no /urisdiction from the beginning&
absolute want of /urisdiction
in e;cess of /urisdiction > transcended the limits of
authority without any statutory authority
grave abuse of discretion > e;ercised its power in an
arbitrary or despotic manner by reason of passion or
personal hostilities& so patent and gross as to amount to an
evasion or virtual refusal to perform the duty en/oined or
to act in contemplation of law
). Purpo!e! of a 0rit of
5ertiorari > to correct errors of /urisdiction& refers to only
to /udicial or quasi*/udicial functions
Prohibition > to prevent respondent from usurping a
/urisdiction which it is not legally vested& refers to /udicial,
quasi*/udicial, or ministerial functions
#andamus > to require or compel the respondent to
perform a particular duty, which duty results from the
official station of the respondent, or from operation of law&
refers only to ministerial duties
Euo @arranto
c. Di!ti,ui!+
5ertiorari Prohibition #andamus
$irected against
a person
e;ercising to
/udicial or quasi*
/udicial functions
$irected against
a person
e;ercising
/udicial or quasi*
/udicial
functions, or
ministerial
$irected against a
person e;ercising
ministerial duties
functions
=b/ect is to
correct
=b/ect is to
prevent
=b/ect is to
compel
Purpose is to
annul or modify
the proceedings
Purpose is to stop
the proceedings
Purpose is to
compel
performance of
the act required
and to collect
damages
Person or entity
must have acted
without or in
e;cess of
/urisdiction, or
with grave abuse
of discretion
Person or entity
must have acted
without or in
e;cess of
/urisdiction, or
with grave abuse
of discretion
Person must have
neglected a
ministerial duty
or e;cluded
another from a
right or office
Prohibition In/unction
Always the main action #ay be the main action or
/ust a provisional remedy
$irected against a court, a
tribunal e;ercising /udicial
or quasi*/udicial functions
$irected against a party
Ground must be the court
acted without or in e;cess
of /urisdiction
$oes not involve a question
of /urisdiction
Prohibition #andamus
3o prevent an act by a
respondent
3o compen an act desired
#ay be directed against
entities e;ercising /udicial
or quasi*/udicial, or
ministerial functions
#ay be directed against
/udicial and non*/udicial
entities
B;tends to discretionary
functions
B;tends only to ministerial
functions
#andamus Euo warranto
5larifies legal duties, not
legal titles
5larifies who has legal title
to the office, or franchise
6espondent, without
claiming any right to the
office, e;cludes the
petitioner
6espondent usurps the
office
5ertiorari as a #ode of 5ertiorari as a 4pecial 5ivil
Appeal -6ule "%. Action -6ule '%.
only questions of law may
be raised
question of whether the
lower court acted without or
in e;cess of /urisdiction or
with grave abuse of
discretion
involves review of
/udgments, awards, or final
orders
may be directed against an
interlocutory order of the
court or where not appeal or
plain or speedy remedy
available in the ordinary
course of law
filed within 1% days from
notice of the /udgment or
final order or resolution
appealed from, or of the
denial of the petitioner9s
#13 or #f6& the 45 may
for /ustifiable reasons grant
an e;tension of !< days
filed within '< days from
notice of the /udgment,
order or resolution
stays e;ecution of the
/udgment, award or order
appealed from
B;ecution is not stayed
unless a 36= or a writ of PI
has been issued
lower courts or /udges
thereof are not impleaded
the lower court or /udge is
impleaded as a public
respondent
Prior #f6 not required #f6 is a condition
precedent, sub/ect to
e;ceptions
appellate /urisdiction is
invoked
original /urisdiction is
invoked& 45 e;ercises its
power of control and
supervision over
proceedings of the lower
court
de ?eon8 B;ension of !<
days may be granted for
/ustifiable reasons
de ?eon8 B;tension of 1%
days may be granted for
compelling reasons
de ?eon8 7iled with only
the 45
de ?eon8 #ay be filed in all
courts of general /urisdiction
de ?eon8 45 may deny the
decision motu propio
d. Rule #6
General Procedure in 5P#
Sectio '. Petition for certiorari. * W+e a/
tri)ual1 )oard or officer e8erci!i, .udicial or 4ua!i%
.udicial fuctio! +a! acted 0it+out or i e8ce!! of it!
or +i! .uri!dictio1 or 0it+ ,rave a)u!e of di!cretio
a-outi, to lac7 or e8ce!! of .uri!dictio1 ad t+ere i!
o appeal1 or a/ plai1 !peed/1 ad ade4uate re-ed/
i t+e ordiar/ cour!e of la01 a per!o a,,rieved
t+ere)/ -a/ file a verified petitio i t+e proper court1
alle,i, t+e fact! 0it+ certait/ ad pra/i, t+at
.ud,-et )e redered aulli, or -odif/i, t+e
proceedi,! of !uc+ tri)ual1 )oard or officer1 ad
,rati, !uc+ icidetal relief! a! la0 ad .u!tice -a/
re4uire.
T+e petitio !+all )e acco-paied )/ a certified
true cop/ of t+e .ud,-et1 order or re!olutio !u).ect
t+ereof1 copie! of all pleadi,! ad docu-et! relevat
ad pertiet t+ereto1 ad a !0or certificatio of o%
foru- !+oppi, a! provided i t+e t+ird para,rap+ of
!ectio 21 Rule 5#. "'a(
#emoriFeG
1ote that certiorari is directed only against an entity
e;ercising /udicial or quasi*/udicial functions. 3he result is
proceedings are annulled or modified.
Sec. $. Petition for prohi(ition. * W+e t+e
proceedi,! of a/ tri)ual1 corporatio1 )oard1 officer
or per!o1 0+et+er e8erci!i, .udicial1 4ua!i%.udicial or
-ii!terial fuctio!1 are 0it+out or i e8ce!! of it! or
+i! .uri!dictio1 or 0it+ ,rave a)u!e of di!cretio
a-outi, to lac7 or e8ce!! of .uri!dictio1 ad t+ere i!
o appeal or a/ ot+er plai1 !peed/1 ad ade4uate
re-ed/ i t+e ordiar/ cour!e of la01 a per!o
a,,rieved t+ere)/ -a/ file a verified petitio i t+e
proper court1 alle,i, t+e fact! 0it+ certait/ ad
pra/i, t+at .ud,-et )e redered co--adi, t+e
re!podet to de!i!t fro- furt+er proceedi,! i t+e
actio or -atter !pecified t+erei1 or ot+er0i!e
,rati, !uc+ icidetal relief! a! la0 ad .u!tice -a/
re4uire.
T+e petitio !+all li7e0i!e )e acco-paied )/ a
certified true cop/ of t+e .ud,-et1 order or re!olutio
!u).ect t+ereof1 copie! of all pleadi,! ad docu-et!
relevat ad pertiet t+ereto1 ad a !0or
certificatio of o%foru- !+oppi, a! provided i t+e
t+ird para,rap+ of !ectio 21 Rule 5#. "$a(
#emoriFeG
1ote that prohibition is directed anybody. 3he result is the
respondent is ordered to desist from further proceedings.
Sec. 2. Petition for mandamus. * W+e a/
tri)ual1 corporatio1 )oard1 officer or per!o
ula0full/ e,lect! t+e perfor-ace of a act 0+ic+
t+e la0 !pecificall/ e.oi! a! a dut/ re!ulti, fro- a
office1 tru!t1 or !tatio1 or ula0full/ e8clude! aot+er
fro- t+e u!e ad e.o/-et of a ri,+t or office to
0+ic+ !uc+ ot+er i! etitled1 ad t+ere i! o ot+er plai1
!peed/ ad ade4uate re-ed/ i t+e ordiar/ cour!e of
la01 t+e per!o a,,rieved t+ere)/ -a/ file a verified
petitio i t+e proper court1 alle,i, t+e fact! 0it+
certait/ ad pra/i, t+at .ud,-et )e redered
co--adi, t+e re!podet1 i--ediatel/ or at !o-e
ot+er ti-e to )e !pecified )/ t+e court1 to do t+e act
re4uired to )e doe to protect t+e ri,+t! of t+e
petitioer1 ad to pa/ t+e da-a,e! !u!taied )/ t+e
petitioer )/ rea!o of t+e 0ro,ful act! of t+e
re!podet.
T+e petitio !+all al!o cotai a !0or certificatio
of o%foru- !+oppi, a! provided i t+e t+ird
para,rap+ of !ectio 21 Rule 5#. "2a(
#emoriFeG
1ote that mandamus is directed against entities e;ercising
only ministerial functions. 3he result is the respondent is
ordered to desist from further proceedings.
Sec 5. When and where petition filed. % T+e petitio
!+all )e filed ot later t+a !i8t/ "#9( da/! fro- otice
of t+e .ud,-et1 order or re!olutio. I ca!e a -otio
for reco!ideratio or e0 trial i! ti-el/ filed1 0+et+er
!uc+ -otio i! re4uired or ot1 t+e !i8t/ "#9( da/ period
!+all )e couted fro- otice of t+e deial of t+e !aid
-otio.
T+e petitio !+all )e filed i t+e Supre-e Court or1
if it relate! to t+e act! or o-i!!io! of a lo0er court or
of a corporatio1 )oard1 officer or per!o1 i t+e
Re,ioal Trial Court e8erci!i, .uri!dictio over t+e
territorial area a! defied )/ t+e Supre-e Court. It
-a/ al!o )e filed i t+e Court of Appeal! 0+et+er or
ot t+e !a-e i! i t+e aid of it! appellate .uri!dictio1 or
i t+e Sadi,a)a/a if it i! i aid of it! appellate
.uri!dictio. If it ivolve! t+e act! or o-i!!io! of a
4ua!i%.udicial a,ec/1 ule!! ot+er0i!e provided )/ la0
or t+e!e rule!1 t+e petitio !+all )e filed i ad
co,i@a)le ol/ )/ t+e Court of Appeal!.
No e8te!io of ti-e to file t+e petitio !+all )e
,rated e8cept for co-pelli, rea!o ad i o ca!e
e8ceedi, fiftee "'6( da/!. "5a(
?ike petitions for review to the 5A and petition for review
on certiorari to the 45, the period to file a special civil
action for certiorari is counter from notice of the /udgment
or denial of a #13 or #f6, unlike in ordinary appeals
where an #f6 or #13 only tolls the period and the
appellant has only remainder of the original 1% day period
to appeal.
Sec. 6. )espondents and costs in certain cases. *
W+e t+e petitio filed relate! to t+e act! or o-i!!io!
of a .ud,e1 court1 4ua!i%.udicial a,ec/1 tri)ual1
corporatio1 )oard1 officer or per!o1 t+e petitioer
!+all .oi1 a! private re!podet or re!podet! 0it+
!uc+ pu)lic re!podet or re!podet!1 t+e per!o or
per!o! itere!ted i !u!taii, t+e proceedi,! i t+e
court: ad it !+all )e t+e dut/ of !uc+ private
re!podet! to appear ad defed1 )ot+ i +i! or t+eir
o0 )e+alf ad i )e+alf of t+e pu)lic re!podet or
re!podet! affected )/ t+e proceedi,!1 ad t+e co!t!
a0arded i !uc+ proceedi,! i favor of t+e petitioer
!+all )e a,ai!t t+e private re!podet! ol/1 ad ot
a,ai!t t+e .ud,e1 court1 4ua!i%.udicial a,ec/1
tri)ual1 corporatio1 )oard1 officer or per!o
i-pleaded a! pu)lic re!podet or re!podet!.
3le!! ot+er0i!e !pecificall/ directed )/ t+e court
0+ere t+e petitio i! pedi,1 t+e pu)lic re!podet!
!+all ot appear i or file a a!0er or co--et to t+e
petitio or a/ pleadi, t+erei. If t+e ca!e i! elevated
to a +i,+er court )/ eit+er part/1 t+e pu)lic
re!podet! !+all )e icluded t+erei a! o-ial
partie!. Ao0ever1 ule!! ot+er0i!e !pecificall/ directed
)/ t+e court1 t+e/ !+all ot appear or participate i t+e
proceedi,! t+erei. "6a(
Sec. #. Order to comment. * If t+e petitio i!
!ufficiet i for- ad !u)!tace to .u!tif/ !uc+ proce!!1
t+e court !+all i!!ue a order re4uiri, t+e re!podet
or re!podet! to co--et o t+e petitio 0it+i te
"'9( da/! fro- receipt of a cop/ t+ereof. Suc+ order
!+all )e !erved o t+e re!podet! i !uc+ -aer a!
t+e court -a/ direct1 to,et+er 0it+ a cop/ of t+e
petitio ad a/ ae8e! t+ereto.
I petitio! for certiorari )efore t+e Supre-e
Court ad t+e Court of Appeal!1 t+e provi!io! of
!ectio $1 Rule 6#1 !+all )e o)!erved. Before ,ivi, due
cour!e t+ereto1 t+e court -a/ re4uire t+e re!podet!
to file t+eir co--et to1 ad ot a -otio to di!-i!!1
t+e petitio. T+ereafter1 t+e court -a/ re4uire t+e fili,
of a repl/ ad !uc+ ot+er re!po!ive or ot+er pleadi,!
a! it -a/ dee- ece!!ar/ ad proper. "#a(
Sec. &. 'xpediting proceedings* in+uncti#e relief. *
T+e court i 0+ic+ t+e petitio i! filed -a/ i!!ue order!
e8pediti, t+e proceedi,!1 ad it -a/ al!o ,rat a
te-porar/ re!traii, order or a 0rit of preli-iar/
i.uctio for t+e pre!ervatio of t+e ri,+t! of t+e
partie! pedi, !uc+ proceedi,!. T+e petitio !+all ot
iterrupt t+e cour!e of t+e pricipal ca!e ule!! a
te-porar/ re!traii, order or a 0rit of preli-iar/
i.uctio +a! )ee i!!ued a,ai!t t+e pu)lic
re!podet fro- furt+er proceedi, i t+e ca!e. "&a(
A special civil action for certiorari, prohibition, and
mandamus does not stay e;ecution, unless a 36= or PI is
issued.
Sec. >. Proceedings after comment is filed. * After
t+e co--et or ot+er pleadi,! re4uired )/ t+e court
are filed1 or t+e ti-e for t+e fili, t+ereof +a! e8pired1
t+e court -a/ +ear t+e ca!e or re4uire t+e partie! to
!u)-it -e-orada. If after !uc+ +eari, or !u)-i!!io
of -e-orada or t+e e8piratio of t+e period for t+e
fili, t+ereof t+e court fid! t+at t+e alle,atio! of t+e
petitio are true1 it !+all reder .ud,-et for t+e relief
pra/ed for or to 0+ic+ t+e petitioer i! etitled.
T+e court1 +o0ever1 -a/ di!-i!! t+e petitio if it
fid! t+e !a-e to )e patetl/ 0it+out -erit1 pro!ecuted
-aife!tl/ for dela/1 or t+at t+e 4ue!tio! rai!ed
t+erei are too u!u)!tatial to re4uire co!ideratio.
">a(
Grounds for the court to motu propio dismiss the special
civil action for 5P#
.1 patently without merit
. prosecuted manifestly for delay, or
.! the questions raised therein are too unsubstantial to
require consideration.
Sec. ?. Ser#ice and enforcement of order or
+udgment. * A certified cop/ of t+e .ud,-et redered
i accordace 0it+ t+e la!t precedi, !ectio !+all )e
!erved upo t+e court1 4ua!i%.udicial a,ec/1 tri)ual1
corporatio1 )oard1 officer or per!o cocered i !uc+
-aer a! t+e court -a/ direct1 ad di!o)ediece
t+ereto !+all )e pui!+ed a! cote-pt. A e8ecutio
-a/ i!!ue for a/ da-a,e! or co!t! a0arded i
accordace 0it+ !ectio ' of Rule 2?. "?a(
e. Ca!e!
ortic! v. Corona, )+ 456A > An error of /udgment is
one which the court may commit in the e;ercise of its
/urisdiction, and which error is reviewable only by an
appeal. Brror of /urisdiction is one where the act
complained of was issued by the court, officer or a quasi*
/udicial body without or in e;cess of /urisdiction, or with
grave abuse of discretion which is tantamount to lack or in
e;cess of /urisdiction. 3his error is correctable only by the
e;traordinary writ of certiorari.
"ela Cruz v. IAC, 1!" 456A "1( -1+)%. 3he remedy from
a dismissal of a case is appeal. 4pecial 5ivil Action of
5ertiorari is precluded where the remedy of appeal was
available but has been lost. 4pecial 5ivil Action of
5ertiorari can not take the place of a lost appeal.
"auz v. Eleosida, 1 456A ++< -1+'1.
7acts8 $auF was charged for non*payment of municipal
license fees for the
nd
, !
rd
, and "
th
quarters of 1+%). $auF
moved to quash on the ground that the facts did not
constitute an offense because he had paid municipal
license fees for the 1
st
quarter and therefore the remedy of
the government was to collect by civil action. $enied by
the /ustice of the peace. $auF files a petition for certorari
with the 57I. Again denied.
2eld8 3he act complained of was clearly in violation of an
ordinance which provides for a penalty therefore. @hether
or not he paid for the 1
st
quarter constitutes a defense
which he may prove during the trial. If such defense fails,
appeal is available. @here appeal is available, certiorari
and prohibition do not lie.
People v. #amos, )! 456A 1 -1+(). @here an information
or complaint been allowed despite a patent defect -e.g.
prescription., appeal is not an adequate remedy. 2owever,
mandamus is not a proper remedy to quash an information
because the latter is not a ministerial function. 3he proper
remedies are certiorari and prohibition.
$autista v. Sarmiento, 1) 456A %)( -1+)%. 4pecial civil
action for certiorari is not the proper remedy from a denial
of a demurrer to evidence. $enial of a demurrer to
evidence is merely an interlocutory order which can not be
the sub/ect of a petition for certiorari. 3he remedy is to
continue with the trial of the case and had the decision
been adverse, to raise the issue on appeal.
de ?eon8 @hat happened to the principle that
,interlocutory orders are not appealable, but may be
sub/ect to certiorariA0 4pecial civil action for certiorari is
precisely the only remedy from interlocutory orders. I
think what the 45 was trying to say was interlocutory
orders are not appealable, and the only remedy is a special
civil action for certiorari. :ut this remedy is available only
as an e;ception rather than the rule.
%da. de $acang v. CA, 1% 456A 1!( -1+)!.
7acts8 Petitioners filed action to recover their hereditary
shares in land that was awarded "! years ago in a cadastral
case. 6espondents moved to dismiss on res /udicata and
prescription. $enied.
2eld8 PetitionersH action is clearly barred by valid prior
/udgments and prescription. Private respondentsH 3orrens
titles over the hacienda have long become indefeasible.
4ince the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy and
adequate remedies of certiorari and prohibition to correct a
grave abuse of discretion, amounting to lack of
/urisdiction, committed by the trial court in not dismissing
the case. @here the lower court refuses to dismiss the on a
ground shown to be indubitable -e.g. res /udicata and
prescription., certiorari and prohibition is allowed.
Bscolin8 In these cases, the 45 could have decided either
way.
Santiago v. CA, 1)" 456A %+< -1++<.
7acts8 Iudge disapproves agreement of parties as to /ust
compensation in an e;propriation proceedings. =n special
civil action for certiorari to the 5A, 5A reverses.
5ontending that since he was impleaded in the certiorari
case before the 5A, he now files a petition for review on
certiorari before the 45.
2eld8 =nly a party is allowed to appeal to the 45 by
petition for review on certiorari. 3he /udge who rendered
the questioned decision is not a party. 3he fact that he was
named a party respondent before the 45 does not give him
capacity to appeal. 2is being named a respondent is only
for the purpose of questioning the /urisdiction of the court
itself. 3he /udge is merely a nominal party. 6espect for
/udicial hierarchy bars a /udge from suing against an
adverse opinion of an appellate court.
Calderon v. Solicitor&General, 1% 456A )(' -1++.
7acts8 Iudge increases bail to an amount beyond that
prescribed. =n special civil action for certiorari, 5A annuls
/udge9s order. Iudge files #f6 in which the 4olicitor
General refuses to represent him. Iudge goes to 45 on
special civil action for certiorari and mandamus to compel
the 4olicitor General to represent him.
2eld8 A /udge can not seek a reversal of a decision
reversing his own decision. 3he /udge has not standing to
file the certiorari proceeding. 2e is merely a nominal party
in the certiorari proceeding before the 5A. 7urthermore,
the 4olicitor General has discretion to decide when and
how to prosecute a case. 2is duty is therefore
discretionary, not ministerial, and therefore can not be
compelled by mandamus.
de ?eon8 1ote that in these last decisions -Santos and
Calderon., the /udges were invoking the fact that they
were impleaded before the 5A. It is only in special civil
actions for certiorari that the lower courts are impleaded.
In all modes of appeal -special civil action is, strictly
speaking, not an appeal., the lower court is not impleaded.
Municipality of $i'an( )aguna v. CA, 1+ 456A '+ -1++!.
7acts8 #unicipality files an e/ectment case against a lessee
of its property. #35 rules for municipality. B;ecution
pending appeal was granted. ?essee questions the
e;ecution pending appeal in a petition for certiorari before
the 5A. 3he 5A not only annulled e;ecution pending
appeal, but also reversed the main decision.
2eld8 3he only issue in the certiorari proceedings was the
propriety of the e;ecution pending appeal. Bven if the
error in the main decision was raised the in the certiorari
proceedings, such issue is improper because the remedy of
appeal is still available and was in fact availed of.
6. Cuo Warrato
Euo @arranto > a demand made by the state upon some
individual or corporation to show by what right they
e;ercise some franchise or privilege appertaining to the
4tate which according to the 5onstitution or the laws of
the land, they can not legally e;ercise by virtue of a grant
or authority from the 4tate
Euo @arranto #andamus
6emedy to try an office or
franchise and to oust the
holder from en/oyment
3o clear legal duties, not
disputed titles
3here is usurpation or
intrusion into an office by
the respondent
6espondent need not claim
right to an office but
e;cludes petitioner
therefrom
Euo @arranto Blection 5ontest
$isputes relates to the $ispute refers to
eligibility of the candidate
elect
irregularities in the conduct
of election
6espondent ousted but
petitioner does not always
assume office
4uccessful protestant wil
assume office if he had
plurality of valid votes
Euo @arranto in Blective
=ffices
Euo @arranto in Appointive
=ffices
Issue is eligibility of the
respondent
Issue is the validity of the
appointment
Petitioner does not seek
replace respondent
Petitioner seeks to replace
repondent
a. Rule ##
General procedure in quo warranto
Sectio '. Action (y !o#ernment against
indi#iduals. * A actio for t+e u!urpatio of a pu)lic
office1 po!itio or frac+i!e -a/ )e co--eced )/ a
verified petitio )rou,+t i t+e a-e of t+e Repu)lic of
t+e P+ilippie! a,ai!tD
"a( A per!o 0+o u!urp!1 itrude! ito1 or
ula0full/ +old! or e8erci!e! a pu)lic office1 po!itio or
frac+i!e:
")( A pu)lic officer 0+o doe! or !uffer! a act
0+ic+1 )/ t+e provi!io of la01 co!titute! a ,roud for
t+e forfeiture of +i! office: or
"c( A a!!ociatio 0+ic+ act! a! a corporatio
0it+i t+e P+ilippie! 0it+out )ei, le,all/
icorporated or 0it+out la0ful aut+orit/ !o to act. "'a(
Grounds for quo warranto filed by the government
.1 a person usurps, intrudes into, or unlawfully holds or
e;ercises a public office, position or franchise&
. a public officer who does or suffers an act which, by
the provision of law, constitutes a ground for the
forfeiture of his office& or
.! an association which acts as a corporation within the
Philippines without being legally incorporated or
without lawful authority so to act.
Sec. $. When Solicitor !eneral or pu(lic prosecutor
must commence action. * T+e Solicitor ;eeral or a
pu)lic pro!ecutor1 0+e directed )/ t+e Pre!idet of
t+e P+ilippie!1 or 0+e upo co-plait or ot+er0i!e
+e +a! ,ood rea!o to )elieve t+at a/ ca!e !pecified i
t+e precedi, !ectio ca )e e!ta)li!+ed )/ proof1 -u!t
co--ece !uc+ actio. "2a(
Sec. 2. When Solicitor !eneral or pu(lic prosecutor
may commence action with permission of court. * T+e
Solicitor ;eeral or a pu)lic pro!ecutor -a/1 0it+ t+e
per-i!!io of t+e court i 0+ic+ t+e actio i! to )e
co--eced1 )ri, !uc+ a actio at t+e re4ue!t ad
upo t+e relatio of aot+er per!o: )ut i !uc+ ca!e
t+e officer )ri,i, it -a/ fir!t re4uire a ide-it/
for t+e e8pe!e! ad co!t! of t+e actio i a a-out
approved )/ ad to )e depo!ited i t+e court )/ t+e
per!o at 0+o!e re4ue!t ad upo 0+o!e relatio t+e
!a-e i! )rou,+t. "5a(
Sec. 5. When hearing had on application for
permission to commence action. * 3po applicatio for
per-i!!io to co--ece !uc+ actio i accordace
0it+ t+e e8t precedi, !ectio1 t+e court !+all direct
t+at otice )e ,ive to t+e re!podet !o t+at +e -a/ )e
+eard i oppo!itio t+ereto: ad if per-i!!io i!
,rated1 t+e court !+all i!!ue a order to t+at effect1
copie! of 0+ic+ !+all )e !erved o all itere!ted partie!1
ad t+e petitio !+all t+e )e filed 0it+i t+e period
ordered )/ t+e court. "6a(
6equisites for Euo @arranto by Government against
individuals
.1 verified petition
. commenced by the 4olicitor General or public
prosecutor, in the name of the 6epublic of the
Philippines after either
.a being directed by the President
.b upon complaint or otherwise, he has good reason
to believe the grounds can be established by
proof, or
.c with the permission of the court
.1 at the request and upon the relation of
another person
. after requiring an indemnity for the
e;penses and costs of the action in an amount
approved by and to be deposited in the court
.! court directs that notice be given to the
respondent
Sec. 6. When an indi#idual may commence such an
action. * A per!o clai-i, to )e etitled to a pu)lic
office or po!itio u!urped or ula0full/ +eld or
e8erci!ed )/ aot+er -a/ )ri, a actio t+erefor i
+i! o0 a-e. "#(
=nly grounds for quo warranto filed by an individual >
respondent is usurping, unlawfully holding, or is
e;ercising a public office or position being claimed by the
petitioner
Sec. #. Parties and contents of petition against
usurpation. * W+e t+e actio i! a,ai!t a per!o for
u!urpi, a pu)lic office1 po!itio or frac+i!e1 t+e
petitio !+all !et fort+ t+e a-e of t+e per!o 0+o
clai-! to )e etitled t+ereto1 if a/1 0it+ a aver-et of
+i! ri,+t to t+e !a-e ad t+at t+e re!podet i!
ula0full/ i po!!e!!io t+ereof. All per!o! 0+o clai-
to )e etitled to t+e pu)lic office1 po!itio or frac+i!e
-a/ )e -ade partie!1 ad t+eir re!pective ri,+t! to
!uc+ pu)lic office1 po!itio or frac+i!e deter-ied1 i
t+e !a-e actio. "&a(
@hen the action is against a person for usurping a public
office, position or franchise, the petition shall set forth
.1 the name of the person who claims to be entitled
thereto, if any
. averment
.a of petitioner9s right to the same and
.b that the respondent is unlawfully in possession
thereof
All persons who claim to be entitled to the public office,
position or franchise may be made parties, and their
respective rights to such public office, position or franchise
determined, in the same action.
Sec. &. ,enue. * A actio uder t+e precedi, !i8
!ectio! ca )e )rou,+t ol/ i t+e Supre-e Court1 t+e
Court of Appeal!1 or i t+e Re,ioal Trial Court
e8erci!i, .uri!dictio over t+e territorial area 0+ere
t+e re!podet or a/ of t+e re!podet! re!ide!1 )ut
0+e t+e Solicitor ;eeral co--ece! t+e actio1 it
-a/ )e )rou,+t i a Re,ioal Trial Court i t+e Cit/ of
Maila1 i t+e Court of Appeal!1 or i t+e Supre-e
Court. ">a(
Jenue for quo warranto
.1 45, 5A or 635 e;ercising /urisdiction over the
territorial area where the respondent or any of the
respondents resides, or
. 45, 5A or 635 of #anila > if commenced by the
4olicitor General
Sec. >. Period for pleadings and proceedings may (e
reduced* action gi#en precedence. * T+e court -a/
reduce t+e period provided )/ t+e!e Rule! for fili,
pleadi,! ad for all ot+er proceedi,! i t+e actio i
order to !ecure t+e -o!t e8peditiou! deter-iatio of
t+e -atter! ivolved t+erei co!i!tet 0it+ t+e ri,+t!
of t+e partie!. Suc+ actio -a/ )e ,ive precedece
over a/ ot+er civil -atter pedi, i t+e court. "?a(
Sec. ?. -udgment where usurpation found. * W+e
t+e re!podet i! foud ,uilt/ of u!urpi,1 itrudi,
ito1 or ula0full/ +oldi, or e8erci!i, a pu)lic office1
po!itio or frac+i!e1 .ud,-et !+all )e redered t+at
!uc+ re!podet )e ou!ted ad alto,et+er e8cluded
t+erefro-1 ad t+at t+e petitioer or relator1 a! t+e ca!e
-a/ )e1 recover +i! co!t!. Suc+ furt+er .ud,-et -a/
)e redered deter-ii, t+e re!pective ri,+t! i ad to
t+e pu)lic office1 po!itio or frac+i!e of all t+e partie!
to t+e actio a! .u!tice re4uire!. "'9a(
@hen the respondent is found guilty of usurping, intruding
into, or unlawfully holding or e;ercising a public office,
position or franchise, /udgment shall be rendered that
.1 such respondent be ousted and altogether e;cluded
therefrom, and
. the petitioner or relator, recover his costs
.! further /udgment determining the respective rights in
and to the public office, position or franchise of all the
parties to the action as /ustice requires.
Sec. '9. )ights of persons ad+udged entitled to pu(lic
office* deli#ery of (ooks and papers* damages. * If
.ud,-et )e redered i favor of t+e per!o averred i
t+e co-plait to )e etitled to t+e pu)lic office +e -a/1
after ta7i, t+e oat+ of office ad e8ecuti, a/ official
)od re4uired )/ la01 ta7e upo +i-!elf t+e e8ecutio
of t+e office1 ad -a/ i--ediatel/ t+ereafter de-ad
of t+e re!podet all t+e )oo7! ad paper! i t+e
re!podetE! cu!tod/ or cotrol appertaii, to t+e
office to 0+ic+ t+e .ud,-et relate!. If t+e re!podet
refu!e! or e,lect! to deliver a/ )oo7 or paper
pur!uat to !uc+ de-ad1 +e -a/ )e pui!+ed for
cote-pt a! +avi, di!o)e/ed a la0ful order of t+e
court. T+e per!o ad.ud,ed etitled to t+e office -a/
al!o )ri, actio a,ai!t t+e re!podet to recover t+e
da-a,e! !u!taied )/ !uc+ per!o )/ rea!o of t+e
u!urpatio. "'6a(
After taking the oath of office and e;ecuting any required
bond, rights of persons ad/udged entitled to public office
.1 3o take upon himself the e;ecution of the office
. to demand of the respondent all the books and papers
in the respondent9s custody or control appertaining to
the office to which the /udgment relates, failure of
which is punishable by contempt
.! to bring action against the respondent to recover the
damages sustained by such person by reason of the
usurpation.
Sec. ''. "imitations. * Not+i, cotaied i t+i!
Rule !+all )e co!trued to aut+ori@e a actio a,ai!t a
pu)lic officer or e-plo/ee for +i! ou!ter fro- office
ule!! t+e !a-e )e co--eced 0it+i oe "'( /ear after
t+e cau!e of !uc+ ou!ter1 or t+e ri,+t of t+e petitioer to
+old !uc+ office or po!itio1 aro!e: or to aut+ori@e a
actio for da-a,e! i accordace 0it+ t+e provi!io! of
t+e e8t precedi, !ectio ule!! t+e !a-e )e
co--eced 0it+i oe "'( /ear after t+e etr/ of t+e
.ud,-et e!ta)li!+i, t+e petitioerE! ri,+t to t+e office
i 4ue!tio. "'#a(
Prescription for quo warranto > 1 year after
.1 cause of such ouster, or
. the right of the petitioner to hold such office or
position arose
Prescription for an action for damages after quo warranto >
1 year after the entry of the /udgment establishing the
petitioner9s right to the office in question
Sec. '$. -udgment for costs. * I a actio )rou,+t
i accordace 0it+ t+e provi!io! of t+i! Rule1 t+e court
-a/ reder .ud,-et for co!t! a,ai!t eit+er t+e
petitioer1 t+e relator1 or t+e re!podet1 or t+e per!o
or per!o! clai-i, to )e a corporatio1 or -a/
apportio t+e co!t!1 a! .u!tice re4uire!. "'&a(
). Ca!e!
Campos v. "egamo, ' 456A !% -1+'.
7acts8 5ouncilors K 1 5ampos and K =roc files a quo
warranto against the #ayor $egamo and Jice*#ayor
Palarca on the ground that there was no valid canvass for
the offices of #ayor and Jice #ayor effected and the
respondents could not legally occupy the said positions
because the :oard of 5anvassers used in their canvass for
election the election return coming from the Provincial
3reasurerHs =ffice, inspite of the fact that the copy of the
election return in the hands of the municipal treasurer was
available. 3hey prayed that $egamo and Palarca be
e;cluded from their offices and that 5ampos and =roc be
declared entitled thereto.
2eld8 @here the quo warranto complaint involves an
elective office, it must be shown that the plaintiff was duly
elected thereto. 5ampos being candidates for councilors
and not for mayor and vice*mayor, could not have been
elected to the offices in question, and therefore are not
proper parties to the quo warranto case. #oreover, there
being a pending case for quo warranto filed by other
candidates for mayor and vice*mayor, the filing of the case
at bar was premature and the cause of action had not as yet
accrued.
Sison v. Pangramuyen, )" 456A !'" -1+().
7acts8 4ison files a petition for quo warranto questioning
the appointment of #aliwanag by the 545 as assistant city
assessor on 1ovember 1+(!. 2e claims that he should be
the one appointed as per the ne;t*in rank*rule. 3he petition
was filed on #arch 1+(%, more than a year after the
appointment of #aliwanag.
2eld8 3he action has prescribed because quo warranto
prescribes after 1 year from the time the cause of action
accrues -i.e. questioned appointment.. 6esort to
administrative remedy does not abate the period for
/udicial action.
Municipality of San *arciso v. Mendez, !+ 456A 11
-1++".
7acts8 President Garcia created the #unicipality of 4an
Andres by an B= in 1+%+. In 1+'%, the case of Pelaez v.
Auditor&General was promulgated declaring the creation of
?GDs to be a legislative, not an e;ecutive function.
#unicipality of 4an 1arciso files a petition for quo
warranto against the ?G officials of 4an Andres in 1+)+.
2eld8 3he quo warranto is focused on the legal e;istence
of a body politic, the action is reserved to the 4tate. It must
be brought Lin the name of the 6epublic of the PhilippinesL
and commenced by the 4olicitor General or the fiscal
Lwhen directed by the President of the Philippines.L 4uch
officers may, under certain circumstances, bring such an
action Lat the request and upon the relation of another
personL with the permission of the court. @hen an
individual seeks to commence an action for quo warranto
in his own name, this can only be done if he claims to be
Lentitled to a public office or position usurped or
unlawfully held or e;ercised by another.L @hile the quo
warranto proceedings filed below by petitioner
municipality has so named only the officials of the
#unicipality of 4an Andres as respondents, it is virtually,
however, a denunciation of the authority of the
#unicipality or #unicipal $istrict of 4an Andres to e;ist
and to act in that capacity. :esides, the cause of action has
prescribed because it was filed nearly !< years after the
cause of action accrued, way beyond the 1 year provided
by the 6o5.
Bscolin8 4ec. 1. includes usurpation of franchise as among
the ground for quo warranto being filed by the
government. In the Municipality of San *arciso case, the
court interpreted ,franchise0 loosely.
#. E8propriatio
Bminent domainMe;propriation > power of the sovereign
state to take or authoriFe the taking of any property within
/urisdiction for the public use and without the owner9s
consent
B;propriation Police Power
Purpose of the taking is for
public use
Purpose of the taking is to
promote general welfare
@ith /ust compensation @ithout /ust compensation
a. Rule #&
General Procedure in B;propriation
.1 verified complaint
. plaintiff may immediately enter upon deposit, with a
government depositary bank, of the assessed value of
the property
.! defendant files either
.a notice of appearance and manifestation, or
.b answer
." order of e;propriation, may be appealed which does
not suspend proceedings
.% court appoints ! commissioners
.' commissioners9 report filed within '< days from
notification of appointment
.( parties have 1< days to file their ob/ections to the
report
.) court accepts or re/ects the commissioners9 report, or
recommits to the commissioners, or appoint another
set of commissioners
.+ plaintiff enters or retains possession upon payment of
/ust compensation
.1< Bntry not delayed by appeal& reversal entitles
defendant to recover possession
Sectio '. %he complaint. * T+e ri,+t of e-iet
do-ai !+all )e e8erci!ed )/ t+e fili, of a verified
co-plait 0+ic+ !+all !tate 0it+ certait/ t+e ri,+t ad
purpo!e of e8propriatio1 de!cri)e t+e real or per!oal
propert/ !ou,+t to )e e8propriated1 ad .oi a!
defedat! all per!o! o0i, or clai-i, to o01 or
occup/i,1 a/ part t+ereof or itere!t t+erei1
!+o0i,1 !o far a! practica)le1 t+e !eparate itere!t of
eac+ defedat. If t+e title to a/ propert/ !ou,+t to )e
e8propriated appear! to )e i t+e Repu)lic of t+e
P+ilippie!1 alt+ou,+ occupied )/ private idividual!1
or if t+e title i! ot+er0i!e o)!cure or dou)tful !o t+at
t+e plaitiff caot 0it+ accurac/ or certait/ !pecif/
0+o are t+e real o0er!1 aver-et to t+at effect !+all
)e -ade i t+e co-plait. "'a(
5ontents of a complaint for e;propriation
.1 verified
. state with certainty the right and purpose of
e;propriation
.! describe the real or personal property sought to be
e;propriated
." /oin as defendants all persons owning or claiming to
own, or occupying, any part thereof or interest therein,
showing, so far as practicable, the separate interest of
each defendant.
.% averment of the following if it so appears
.a title to the property is in the 6epublic of the
Philippines, although occupied by private
individuals, or
.b title is otherwise obscure or doubtful so that the
plaintiff cannot with accuracy or certainty specify
who are the real owners
Sec. $. 'ntry of plaintiff upon depositing #alue with
authori.ed go#ernment depositary. * 3po t+e fili, of
t+e co-plait or at a/ ti-e t+ereafter ad after due
otice to t+e defedat1 t+e plaitiff !+all +ave t+e ri,+t
to ta7e or eter upo t+e po!!e!!io of t+e real
propert/ ivolved if +e depo!it! 0it+ t+e aut+ori@ed
,over-et depo!itar/ a a-out e4uivalet to t+e
a!!e!!ed value of t+e propert/ for purpo!e! of ta8atio
to )e +eld )/ !uc+ )a7 !u).ect to t+e order! of t+e
court. Suc+ depo!it !+all )e i -oe/1 ule!! i lieu
t+ereof t+e court aut+ori@e! t+e depo!it of a certificate
of depo!it of a ,over-et )a7 of t+e Repu)lic of t+e
P+ilippie! pa/a)le o de-ad to t+e aut+ori@ed
,over-et depo!itar/.
If per!oal propert/ i! ivolved1 it! value !+all )e
provi!ioall/ a!certaied ad t+e a-out to )e
depo!ited !+all )e pro-ptl/ fi8ed )/ t+e court.
After !uc+ depo!it i! -ade t+e court !+all order t+e
!+eriff or ot+er proper officer to fort+0it+ place t+e
plaitiff i po!!e!!io of t+e propert/ ivolved ad
pro-ptl/ !u)-it a report t+ereof to t+e court 0it+
!ervice of copie! to t+e partie!. "$a(
6equisites for plaintiff to enter upon the possession of the
real property involved
.1 upon filing of the complaint, or at any time thereafter
. with due notice to the defendant
.! deposits with the authoriFed government depositary an
amount equivalent to the
.a real property > assessed value of the property for
purposes of ta;ation
.b personal property > value provisionally
ascertained and the amount to be deposited as
fi;ed by the court
." $eposit must be
.a in money, or
.b if the court so authoriFes, the deposit of a
certificate of deposit of a government bank of the
6epublic of the Philippines payable on demand to
the authoriFed government depositary.
.% court ordering the sheriff or other proper officer to
.a place the plaintiff in possession of the property
involved and
.b submit a report thereof to the court with service of
copies to the parties
Sec. 2. Defenses and o(+ections. * If a defedat
+a! o o).ectio or defe!e to t+e actio or t+e ta7i,
of +i! propert/1 +e -a/ file ad !erve a otice of
appearace ad a -aife!tatio to t+at effect1
!pecificall/ de!i,ati, or idetif/i, t+e propert/ i
0+ic+ +e clai-! to )e itere!ted1 0it+i t+e ti-e !tated
i t+e !u--o!. T+ereafter1 +e !+all )e etitled to
otice of all proceedi,! affecti, t+e !a-e.
If a defedat +a! a/ o).ectio to t+e fili, of or
t+e alle,atio! i t+e co-plait1 or a/ o).ectio or
defe!e to t+e ta7i, of +i! propert/1 +e !+all !erve +i!
a!0er 0it+i t+e ti-e !tated i t+e !u--o!. T+e
a!0er !+all !pecificall/ de!i,ate or idetif/ t+e
propert/ i 0+ic+ +e clai-! to +ave a itere!t1 !tate
t+e ature ad e8tet of t+e itere!t clai-ed1 ad
adduce all +i! o).ectio! ad defe!e! to t+e ta7i, of
+i! propert/. No couterclai-1 cro!!%clai- or t+ird%
part/ co-plait !+all )e alle,ed or allo0ed i t+e
a!0er or a/ !u)!e4uet pleadi,.
A defedat 0aive! all defe!e! ad o).ectio! ot
!o alle,ed )ut t+e court1 i t+e itere!t of .u!tice1 -a/
per-it a-ed-et! to t+e a!0er to )e -ade ot later
t+a te "'9( da/! fro- t+e fili, t+ereof. Ao0ever1 at
t+e trial of t+e i!!ue of .u!t co-pe!atio1 0+et+er or
ot a defedat +a! previou!l/ appeared or a!0ered1
+e -a/ pre!et evidece a! to t+e a-out of t+e
co-pe!atio to )e paid for +i! propert/1 ad +e -a/
!+are i t+e di!tri)utio of t+e a0ard. "(
If a defendant has
.1 no ob/ection or defense to the action or the taking of
his property > he may file and serve
.a a notice of appearance
.b a manifestation to that effect
.c specifically designating or identifying the
property in which he claims to be interested
.d within the time stated in the summons
.e thereafter, he shall be entitled to notice of all
proceedings affecting the same.
. any ob/ection to the filing of or the allegations in the
complaint, or any ob/ection or defense to the taking of
his property > he shall
.a serve his answer within the time stated in the
summons
.b answer shall specifically designate or identify the
property in which he claims to have an interest
.c state the nature and e;tent of the interest claimed
.d adduce all his ob/ections and defenses to the
taking of his property
.e 1o counterclaim, cross*claim or third*party
complaint shall be alleged or allowed in the
answer or any subsequent pleading.
.f A defendant waives all defenses and ob/ections
not so alleged
.g the court, in the interest of /ustice, may permit
amendments to the answer to be made not later
than 1< days from the filing
2owever, at the trial of the issue of /ust compensation,
whether or not a defendant has previously appeared or
answered, he may present evidence as to the amount of the
compensation to be paid for his property, and he may share
in the distribution of the award.
Sec. 5. Order of expropriation. * If t+e o).ectio!
to ad t+e defe!e! a,ai!t t+e ri,+t of t+e plaitiff to
e8propriate t+e propert/ are overruled1 or 0+e o
part/ appear! to defed a! re4uired )/ t+i! Rule1 t+e
court -a/ i!!ue a order of e8propriatio declari,
t+at t+e plaitiff +a! a la0ful ri,+t to ta7e t+e propert/
!ou,+t to )e e8propriated1 for t+e pu)lic u!e or purpo!e
de!cri)ed i t+e co-plait1 upo t+e pa/-et of .u!t
co-pe!atio to )e deter-ied a! of t+e date of t+e
ta7i, of t+e propert/ or t+e fili, of t+e co-plait1
0+ic+ever ca-e fir!t.
A fial order !u!taii, t+e ri,+t to e8propriate t+e
propert/ -a/ )e appealed )/ a/ part/ a,,rieved
t+ere)/. Suc+ appeal1 +o0ever1 !+all ot prevet t+e
court fro- deter-ii, t+e .u!t co-pe!atio to )e
paid.
After t+e reditio of !uc+ a order1 t+e plaitiff
!+all ot )e per-itted to di!-i!! or di!cotiue t+e
proceedi, e8cept o !uc+ ter-! a! t+e court dee-!
.u!t ad e4uita)le. "5a(
If the ob/ections to and the defenses against the right of the
plaintiff to e;propriate the property are overruled, or when
no party appears to defend as required by this 6ule, the
court may issue an order of e;propriation
.1 declaring that the plaintiff has a lawful right to take
the property sought to be e;propriated
. for the public use or purpose described in the
complaint
.! upon the payment of /ust compensation to be
determined as of the date of the taking of the property
or the filing of the complaint, whichever came first.
A final order sustaining the right to e;propriate the
property may be appealed by any party aggrieved thereby.
4uch appeal, however, shall not prevent the court from
determining the /ust compensation to be paid.
After the rendition of such an order, the plaintiff shall not
be permitted to dismiss or discontinue the proceeding
e;cept on such terms as the court deems /ust and equitable.
Sec. 6. Ascertainment of compensation. * 3po t+e
reditio of t+e order of e8propriatio1 t+e court !+all
appoit ot -ore t+a t+ree "2( co-petet ad
di!itere!ted per!o! a! co--i!!ioer! to a!certai ad
report to t+e court t+e .u!t co-pe!atio for t+e
propert/ !ou,+t to )e ta7e. T+e order of appoit-et
!+all de!i,ate t+e ti-e ad place of t+e fir!t !e!!io of
t+e +eari, to )e +eld )/ t+e co--i!!ioer! ad !pecif/
t+e ti-e 0it+i 0+ic+ t+eir report !+all )e !u)-itted to
t+e court.
Copie! of t+e order !+all )e !erved o t+e partie!.
O).ectio! to t+e appoit-et of a/ of t+e
co--i!!ioer! !+all )e filed 0it+ t+e court 0it+i te
"'9( da/! fro- !ervice1 ad !+all )e re!olved 0it+i
t+irt/ "29( da/! after all t+e co--i!!ioer! !+all +ave
received copie! of t+e o).ectio!. "6a(
5ommissioners are appointed only if the parties can not
agree as to the /ust compensation for the property
Dpon the rendition of the order of e;propriation
.1 the court shall appoint not more than ! competent and
disinterested persons as commissioners to ascertain
and report to the court the /ust compensation for the
property sought to be taken.
. 3he order of appointment shall designate the time and
place of the first session of the hearing to be held by
the commissioners and specify the time within which
their report shall be submitted to the court.
.! 5opies of the order shall be served on the parties.
." =b/ections to the appointment of any of the
commissioners shall be filed with the court within 1<
days from service, and shall be resolved within !<
days after all the commissioners shall have received
copies of the ob/ections.
Sec. #. Proceedings (y commissioners. * Before
eteri, upo t+e perfor-ace of t+eir dutie!1 t+e
co--i!!ioer! !+all ta7e ad !u)!cri)e a oat+ t+at
t+e/ 0ill fait+full/ perfor- t+eir dutie! a!
co--i!!ioer!1 0+ic+ oat+ !+all )e filed i court 0it+
t+e ot+er proceedi,! i t+e ca!e. Evidece -a/ )e
itroduced )/ eit+er part/ )efore t+e co--i!!ioer!
0+o are aut+ori@ed to ad-ii!ter oat+! o +eari,!
)efore t+e-1 ad t+e co--i!!ioer! !+all1 ule!! t+e
partie! co!et to t+e cotrar/1 after due otice to t+e
partie! to atted1 vie0 ad e8a-ie t+e propert/
!ou,+t to )e e8propriated ad it! !urroudi,!1 ad
-a/ -ea!ure t+e !a-e1 after 0+ic+ eit+er part/ -a/1
)/ +i-!elf or cou!el1 ar,ue t+e ca!e. T+e
co--i!!ioer! !+all a!!e!! t+e co!e4uetial da-a,e!
to t+e propert/ ot ta7e ad deduct fro- !uc+
co!e4uetial da-a,e! t+e co!e4uetial )eefit! to )e
derived )/ t+e o0er fro- t+e pu)lic u!e or purpo!e of
t+e propert/ ta7e1 t+e operatio of it! frac+i!e )/ t+e
corporatio or t+e carr/i, o of t+e )u!ie!! of t+e
corporatio or per!o ta7i, t+e propert/. But i o
ca!e !+all t+e co!e4uetial )eefit! a!!e!!ed e8ceed t+e
co!e4uetial da-a,e! a!!e!!ed1 or t+e o0er )e
deprived of t+e actual value of +i! propert/ !o ta7e.
"#a(
:efore entering upon the performance of their duties
.1 the commissioners shall take and subscribe an oath
that they will faithfully perform their duties as
commissioners
. such oath shall be filed in court with the other
proceedings in the case.
Bvidence may be introduced by either party before the
commissioners who are authoriFed to administer oaths on
hearings before them, and the commissioners shall, unless
the parties consent to the contrary, after due notice to the
parties to attend, view and e;amine the property sought to
be e;propriated and its surroundings, and may measure the
same, after which either party may, by himself or counsel,
argue the case.
3he commissioners shall assess the consequential damages
to the property not taken and deduct from such
consequential damages the consequential benefits to be
derived by the owner from the public use or purpose of the
property taken, the operation of its franchise by the
corporation or the carrying on of the business of the
corporation or person taking the property. :ut in no case
shall the consequential benefits assessed e;ceed the
consequential damages assessed, or the owner be deprived
of the actual value of his property so taken.
Sec. &. )eport (y commissioners and +udgment
thereupon. * T+e court -a/ order t+e co--i!!ioer!
to report 0+e a/ particular portio of t+e real e!tate
!+all +ave )ee pa!!ed upo )/ t+e-1 ad -a/ reder
.ud,-et upo !uc+ partial report1 ad direct t+e
co--i!!ioer! to proceed 0it+ t+eir 0or7 a! to
!u)!e4uet portio! of t+e propert/ !ou,+t to )e
e8propriated1 ad -a/ fro- ti-e to ti-e !o deal 0it+
!uc+ propert/. T+e co--i!!ioer! !+all -a7e a full ad
accurate report to t+e court of all t+eir proceedi,!1
ad !uc+ proceedi,! !+all ot )e effectual util t+e
court !+all +ave accepted t+eir report ad redered
.ud,-et i accordace 0it+ t+eir reco--edatio!.
E8cept a! ot+er0i!e e8pre!!l/ ordered )/ t+e court1
!uc+ report !+all )e filed 0it+i !i8t/ "#9( da/! fro-
t+e date t+e co--i!!ioer! 0ere otified of t+eir
appoit-et1 0+ic+ ti-e -a/ )e e8teded i t+e
di!cretio of t+e court. 3po t+e fili, of !uc+ report1
t+e cler7 of t+e court !+all !erve copie! t+ereof o all
itere!ted partie!1 0it+ otice t+at t+e/ are allo0ed te
"'9( da/! 0it+i 0+ic+ to file o).ectio! to t+e fidi,!
of t+e report1 if t+e/ !o de!ire. "&a(
Sec. >. Action upon commissioners/ report. * 3po
t+e e8piratio of t+e period of te "'9( da/! referred to
i t+e precedi, !ectio1 or eve )efore t+e e8piratio
of !uc+ period )ut after all t+e itere!ted partie! +ave
filed t+eir o).ectio! to t+e report or t+eir !tate-et of
a,ree-et t+ere0it+1 t+e court -a/1 after +eari,1
accept t+e report ad reder .ud,-et i accordace
t+ere0it+: or1 for cau!e !+o01 it -a/ reco--it t+e
!a-e to t+e co--i!!ioer! for furt+er report of fact!:
or it -a/ !et a!ide t+e report ad appoit e0
co--i!!ioer!: or it -a/ accept t+e report i part ad
re.ect it i part: ad it -a/ -a7e !uc+ order or reder
!uc+ .ud,-et a! !+all !ecure to t+e plaitiff t+e
propert/ e!!etial to t+e e8erci!e of +i! ri,+t of
e8propriatio1 ad to t+e defedat .u!t co-pe!atio
for t+e propert/ !o ta7e. ">a(
Sec. ?. 0ncertain ownership* conflicting claims. *
If t+e o0er!+ip of t+e propert/ ta7e i! ucertai1 or
t+ere are coflicti, clai-! to a/ part t+ereof1 t+e
court -a/ order a/ !u- or !u-! a0arded a!
co-pe!atio for t+e propert/ to )e paid to t+e court
for t+e )eefit of t+e per!o ad.ud,ed i t+e !a-e
proceedi, to )e etitled t+ereto. But t+e .ud,-et
!+all re4uire t+e pa/-et of t+e !u- or !u-! a0arded
to eit+er t+e defedat or t+e court )efore t+e plaitiff
ca eter upo t+e propert/1 or retai it for t+e pu)lic
u!e or purpo!e if etr/ +a! alread/ )ee -ade. "?a(
Sec. '9. )ights of plaintiff after +udgment and
payment. * 3po pa/-et )/ t+e plaitiff to t+e
defedat of t+e co-pe!atio fi8ed )/ t+e .ud,-et1
0it+ le,al itere!t t+ereo fro- t+e ta7i, of t+e
po!!e!!io of t+e propert/1 or after teder to +i- of t+e
a-out !o fi8ed ad pa/-et of t+e co!t!1 t+e plaitiff
!+all +ave t+e ri,+t to eter upo t+e propert/
e8propriated ad to appropriate it for t+e pu)lic u!e or
purpo!e defied i t+e .ud,-et1 or to retai it !+ould
+e +ave ta7e i--ediate po!!e!!io t+ereof uder t+e
provi!io! of !ectio $ +ereof. If t+e defedat ad +i!
cou!el a)!et t+e-!elve! fro- t+e court1 or declie to
receive t+e a-out tedered1 t+e !a-e !+all )e ordered
to )e depo!ited i court ad !uc+ depo!it !+all +ave t+e
!a-e effect a! actual pa/-et t+ereof to t+e defedat
or t+e per!o ulti-atel/ ad.ud,ed etitled t+ereto.
"'9a(
Sec. ''. 'ntry not delayed (y appeal* effect of
re#ersal. * T+e ri,+t of t+e plaitiff to eter upo t+e
propert/ of t+e defedat ad appropriate t+e !a-e for
pu)lic u!e or purpo!e !+all ot )e dela/ed )/ a appeal
fro- t+e .ud,-et. But if t+e appellate court
deter-ie! t+at plaitiff +a! o ri,+t of e8propriatio1
.ud,-et !+all )e redered orderi, t+e Re,ioal Trial
Court to fort+0it+ eforce t+e re!toratio to t+e
defedat of t+e po!!e!!io of t+e propert/1 ad to
deter-ie t+e da-a,e! 0+ic+ t+e defedat !u!taied
ad -a/ recover )/ rea!o of t+e po!!e!!io ta7e )/
t+e plaitiff. "''a(
1ote that entry may not be delayed by appeal. 3he remedy,
in case of reversal on appeal, is to restore the defendant to
possession plus damages.
Sec. '$. $osts, (y whom paid. * T+e fee! of t+e
co--i!!ioer! !+all )e ta8ed a! a part of t+e co!t! of
t+e proceedi,!. All co!t!1 e8cept t+o!e of rival
clai-at! liti,ati, t+eir clai-!1 !+all )e paid )/ t+e
plaitiff1 ule!! a appeal i! ta7e )/ t+e o0er of t+e
propert/ ad t+e .ud,-et i! affir-ed1 i 0+ic+ evet
t+e co!t! of t+e appeal !+all )e paid )/ t+e o0er. "'$a(
Sec. '2. )ecording +udgment, and its effect. * T+e
.ud,-et etered i e8propriatio proceedi,! !+all
!tate defiitel/1 )/ a ade4uate de!criptio1 t+e
particular propert/ or itere!t t+erei e8propriated1
ad t+e ature of t+e pu)lic u!e or purpo!e for 0+ic+ it
i! e8propriated. W+e real e!tate i! e8propriated1 a
certified cop/ of !uc+ .ud,-et !+all )e recorded i t+e
re,i!tr/ of deed! of t+e place i 0+ic+ t+e propert/ i!
!ituated1 ad it! effect !+all )e to ve!t i t+e plaitiff
t+e title to t+e real e!tate !o de!cri)ed for !uc+ pu)lic
u!e or purpo!e. "'2a(
Sec. '5. Power of guardian in such proceedings. *
T+e ,uardia or ,uardia ad lite- of a -ior or of a
per!o .udiciall/ declared to )e ico-petet -a/1 0it+
t+e approval of t+e court fir!t +ad1 do ad perfor- o
)e+alf of +i! 0ard a/ act1 -atter1 or t+i, re!pecti,
t+e e8propriatio for pu)lic u!e or purpo!e of propert/
)elo,i, to !uc+ -ior or per!o .udiciall/ declared
to )e ico-petet1 0+ic+ !uc+ -ior or per!o
.udiciall/ declared to )e ico-petet could do i !uc+
proceedi,! if +e 0ere of a,e or co-petet. "'5a(
). Ca!e!
City of Manila v. Arellano )a+ Colleges, )% 456A ''!
-1+%<.
7acts8 5ity of #anila seeks to e;propriate land of Arellano
Dniversity for the purpose of reselling it to the poor.
2eld8 In e;propriation, necessity for taking does not mean
an absolute but only a reasonable or practical necessity,
such as would combine the greatest benefit to the public
with the least inconvenience and e;pense to the
condemning party and property owner consistent with such
benefit. In this case, necessity for the condemnation has
not been shown. 3he land in question has cost the owner
P1"<,<<<. 3he people for whose benefit the condemnation
is being undertaken are so poor they could ill afford to
meet this high price, unless they intend to borrow the
money with a view to disposing of the property later for a
profit. 5heaper lands not dedicated to a purpose so worthy
as a school and more suited to the occupantsH needs and
means, if really they only want to own their own homes,
are aplenty elsewhere. =n the other hand, the defendant
not only has invested a considerable amount for its
property but had the plans for construction ready and
would have completed the pro/ect a long time ago had it
not been stopped by the city authorities. @hile a handful of
people stand to profit by the e;propriation, the
development of a university that has a present enrollment
of +,<<< students would be sacrificed. Any good that
would accrue to the public from providing homes to a few
families fades into insignificance in comparison with the
preparation of young men and young women for useful
citiFenship and for service to the government and the
community, a task which the government alone is not in a
position to undertake.
de ?eon8 3his case is authority for saying that public
purpose alone is not enough to authoriFe e;propriation.
EP,A v. "ulay, 1"+ 456A !<% -1+)(. Iust compensation
is the value of the property at the time of the taking of the
property, or the fair and full equivalent of the loss
sustained. $etermination of /ust compensation is a /udicial
function. B;ecutive and legislative departments may make
the initial determination, but it can not be deemed final.
4tatutes that seek to impose otherwise, or seek to limit
/udicial ,discretion0 to determining which is lower
between to set values is unconstitutional.
Manila Electric Company v. Pineda, <' 456A 1+'
-1++. Appointment of ! commissioners to ascertain /ust
compensation is a mandatory requirement in e;propriation.
3hough its findings may be disregarded by the court, it
may only do so for valid reason. 3rial with the aid of
commissioners is a substantial right that may not be done
away with capriciously. #oreover, where the
commissioner9s report is disregarded, the court must make
its own estimate of value from the competent evidence on
record.
&. =oreclo!ure of Real E!tate Mort,a,e
B;tra*/udicial 7oreclosure Iudicial foreclosure
1o complaint is filed 5omplaint is filed with the
courts
#ortgagor has a right of
redemption for 1 year from
registration of the sale
Bquity of redemption only
-+< to 1< days, and any
time before confirmation of
foreclosure sale., unless
right of redemption granted
by law -e.g. bank*
mortgagees.
#ortgagee has to file a
separate action to recover
any deficiency
#ortagagee can move for
deficiency /udgment in the
same action
:uyer at public auction
becomes absolute owner
only after finality of an
action for consolidation of
ownership
:uyer at public auction
becomes absolute owner
only after confirmation of
the sale
#ortgagee is given a
special power of attorney in
the mortgage contract to
foreclose the mortgaged
property in case of default
#ortgagee need not be
given a special power of
attorney
a. E8tra.udicial =oreclo!ure "Act 2'26(
General Procedure in B;tra*Iudicial 7oreclosure
Sec. '. W+e a !ale i! -ade uder a !pecial po0er
i!erted i or attac+ed to a/ real%e!tate -ort,a,e
+ereafter -ade a! !ecurit/ for t+e pa/-et of -oe/ or
t+e fulfill-et of a/ ot+er o)li,atio1 t+e provi!io! of
t+e follo0i, electio !+all ,over a! to t+e -aer i
0+ic+ t+e !ale ad rede-ptio !+all )e effected1
0+et+er or ot provi!io for t+e !a-e i! -ade i t+e
po0er.
Bscolin8 3he contract of mortgage should contain a
stipulation where the mortgagor gives the mortgagee a
special power of attorney to foreclose the property in case
of default.
Sec. $. Said !ale caot )e -ade le,all/ out!ide of
t+e provice i 0+ic+ t+e propert/ !old i! !ituated: ad
i ca!e t+e place 0it+i !aid provice i 0+ic+ t+e !ale
i! to )e -ade i! !u).ect to !tipulatio1 !uc+ !ale !+all )e
-ade i !aid place or i t+e -uicipal )uildi, of t+e
-uicipalit/ i 0+ic+ t+e propert/ or part t+ereof i!
!ituated.
Jenue of e;tra/udicial foreclosure
.1 in province in which the mortgaged property is
situated, and
. in a place within the province
.a by stipulation
.b municipal building in which the property is
situated
Sec. 2. Notice !+all )e ,ive )/ po!ti, otice! of
t+e !ale for ot le!! t+a t0et/ da/! i at lea!t t+ree
pu)lic place! of t+e -uicipalit/ or cit/ 0+ere t+e
propert/ i! !ituated1 ad if !uc+ propert/ i! 0ort+ -ore
t+a four +udred pe!o!1 !uc+ otice !+all al!o )e
pu)li!+ed oce a 0ee7 for at lea!t t+ree co!ecutive
0ee7! i a e0!paper of ,eeral circulatio i t+e
-uicipalit/ or cit/.
1otice in e;tra/udicial foreclosure
.1 posting for not less than < days in ! public places of
the municipality or city where the property is situated
. if property is worth more than P"<<, published once a
week for at least ! consecutive weeks in a newspaper
of general circulation in the municipality or city
Sec. 5. T+e !ale !+all )e -ade at pu)lic auctio1
)et0ee t+e +our! or ie i t+e -ori, ad four i
t+e afteroo: ad !+all )e uder t+e directio of t+e
!+eriff of t+e provice1 t+e .u!tice or au8iliar/ .u!tice of
t+e peace of t+e -uicipalit/ i 0+ic+ !uc+ !ale +a! to
)e -ade1 or a otar/ pu)lic of !aid -uicipalit/1 0+o
!+all )e etitled to collect a fee of five pe!o! eac+ da/ of
actual 0or7 perfor-ed1 i additio to +i! e8pe!e!.
Sec. 6. At a/ !ale1 t+e creditor1 tru!tee1 or ot+er
per!o! aut+ori@ed to act for t+e creditor1 -a/
participate i t+e )iddi, ad purc+a!e uder t+e !a-e
coditio! a! a/ ot+er )idder1 ule!! t+e cotrar/ +a!
)ee e8pre!!l/ provided i t+e -ort,a,e or tru!t deed
uder 0+ic+ t+e !ale i! -ade.
#anner of sale in e;tra/udicial foreclosure
.1 at public auction
. between + a.m. to " p.m.
.! under the direction of
.a the sheriff of the province
.b the /ustice or au;iliary /ustice of the peace of the
municipality in which such sale has to be made,
or
.c a notary public of said municipality
." 4elling officer entitled to a fee of P% each day of
actual work performed, in addition to his e;penses.
.% creditor, trustee, or other persons authoriFed to act for
the creditor, may participate in the bidding and
purchase, unless the contrary is stipulated
Sec. #. I all ca!e! i 0+ic+ a e8tra.udicial !ale i!
-ade uder t+e !pecial po0er +erei)efore referred to1
t+e de)tor1 +i! !ucce!!or! i itere!t or a/ .udicial
creditor or .ud,-et creditor of !aid de)tor1 or a/
per!o +avi, a lie o t+e propert/ !u)!e4uet to t+e
-ort,a,e or deed of tru!t uder 0+ic+ t+e propert/ i!
!old1 -a/ redee- t+e !a-e at a/ ti-e 0it+i t+e ter-
of oe /ear fro- ad after t+e date of t+e !ale: ad
!uc+ rede-ptio !+all )e ,overed )/ t+e provi!io! of
!ectio! four +udred ad !i8t/%four to four +udred
ad !i8t/%!i81 iclu!ive1 of t+e Code of Civil Procedure1
i !o far a! t+e!e are ot ico!i!tet 0it+ t+e
provi!io! of t+i! Act.
6edemption period is 1 year from date of sale.
If the 1 year redemption period has e;pired and the buyer
has not asked for writ of possession, with more reason the
buyer can still ask for issuance of a writ of possession after
the lapse of the redemption period.
Any rent collected will be deducted from the redemption
price.
Sec. &. I a/ !ale -ade uder t+e provi!io! of
t+i! Act1 t+e purc+a!er -a/ petitio t+e Court of =ir!t
I!tace of t+e provice or place 0+ere t+e propert/ or
a/ part t+ereof i! !ituated1 to ,ive +i- po!!e!!io
t+ereof duri, t+e rede-ptio period1 furi!+i, )od
i a a-out e4uivalet to t+e u!e of t+e propert/ for a
period of t0elve -ot+!1 to ide-if/ t+e de)tor i
ca!e it )e !+o0 t+at t+e !ale 0a! -ade 0it+out
violati, t+e -ort,a,e or 0it+out co-pl/i, 0it+ t+e
re4uire-et! of t+i! Act. Suc+ petitio !+all )e -ade
uder oat+ ad filed i for- of a e8 parte -otio i
t+e re,i!tratio or cada!tral proceedi,! if t+e propert/
i! re,i!tered1 or i !pecial proceedi,! i t+e ca!e of
propert/ re,i!tered uder t+e Mort,a,e La0 or uder
!ectio oe +udred ad iet/%four of t+e
Ad-ii!trative Code1 or of a/ ot+er real propert/
ecu-)ered 0it+ a -ort,a,e dul/ re,i!tered i t+e
office of a/ re,i!ter of deed! i accordace 0it+ a/
e8i!ti, la01 ad i eac+ ca!e t+e cler7 of t+e court
!+all1 upo t+e fili, of !uc+ petitio1 collect t+e fee!
!pecified i para,rap+ eleve of !ectio oe +udred
ad fourtee of Act Nu-)ered =our +udred ad
iet/%!i81 a! a-eded )/ Act Nu-)ered T0et/%ei,+t
+udred ad !i8t/%!i81 ad t+e court !+all1 upo
approval of t+e )od1 order t+at a 0rit of po!!e!!io
i!!ue1 addre!!ed to t+e !+eriff of t+e provice i 0+ic+
t+e propert/ i! !ituated1 0+o !+all e8ecute !aid order
i--ediatel/.
7or purchaser to gain possession of the property during the
redemption period
.1 file petition to the 635 of the province or place where
the property or any part thereof is situated
.a under oath and
.b filed in form of an e; parte motion
.1 in the registration or cadastral
proceedings if the property is registered, or
. in special proceedings in the case of
.a property registered under the
#ortgage ?aw or
.b property registered under 4ec. 1+"
of the Administrative 5ode, or of
.c any other real property encumbered
with a mortgage duly registered in the
office of any 6o$ in accordance with
any e;isting law
.c clerk of the court collect the fees
. furnish a bond in an amount equivalent to the use of
the property for a period of 1 months, to indemnify
the debtor in case it be shown that the sale was made
without violating the mortgage or without complying
with the requirements of this Act.
3he issuance of writ of possession to the auction buyer is
ministerial even if the mortgagor is questioning the auction
sale.
@rit of possession may be enforced against successors*in*
interest, or even tenants of the mortgagor. 3he buyer may
dispossess the tenant by e;press provision of the law.
Sec. >. T+e de)tor -a/1 i t+e proceedi,! i
0+ic+ po!!e!!io 0a! re4ue!ted1 )ut ot later t+a
t+irt/ da/! after t+e purc+a!er 0a! ,ive po!!e!!io1
petitio t+at t+e !ale )e !et a!ide ad t+e 0rit of
po!!e!!io cacelled1 !pecif/i, t+e da-a,e! !uffered
)/ +i-1 )ecau!e t+e -ort,a,e 0a! ot violated or t+e
!ale 0a! ot -ade i accordace 0it+ t+e provi!io!
+ereof1 ad t+e court !+all ta7e co,i@ace of t+i!
petitio i accordace 0it+ t+e !u--ar/ procedure
provided for i !ectio oe +udred ad t0elve of Act
Nu-)ered =our +udred ad iet/%!i8: ad if it fid!
t+e co-plait of t+e de)tor .u!tified1 it !+all di!po!e i
+i! favor of all or part of t+e )od furi!+ed )/ t+e
per!o 0+o o)taied po!!e!!io. Eit+er of t+e partie!
-a/ appeal fro- t+e order of t+e .ud,e i accordace
0it+ !ectio fourtee of Act Nu-)ered =our +udred
ad iet/%!i8: )ut t+e order of po!!e!!io !+all
cotiue i effect duri, t+e pedec/ of t+e appeal.
Petition to set aside sale and writ of possession
.1 debtor files it in in the proceedings in which
possession was requested
. within !< days after the purchaser was given
possession
.! specifying the damages suffered by him
." because the mortgage was not violated or the sale was
not made in accordance with the provisions hereof
.% governed by summary procedure
.' if the court finds the complaint of the debtor /ustified,
it shall dispose in his favor of all or part of the bond
furnished by the person who obtained possession
.( Bither of the parties may appeal, but the order of
possession shall continue in effect during the
pendency of the appeal.
Sec. ?. W+e t+e propert/ i! redee-ed after t+e
purc+a!er +a! )ee ,ive po!!e!!io1 t+e redee-er !+all
)e etitled to deduct fro- t+e price of rede-ptio a/
retal! t+at !aid purc+a!er -a/ +ave collected i ca!e
t+e propert/ or a/ part t+ereof 0a! reted: if t+e
purc+a!er occupied t+e propert/ a! +i! o0 d0elli,1 it
)ei, to0 propert/1 or u!ed it ,aifull/1 it )ei, rural
propert/1 t+e redee-er -a/ deduct fro- t+e price t+e
itere!t of oe per cetu- per -ot+ provided for i
!ectio four +udred ad !i8t/%five of t+e Code of Civil
Procedure.
@hen the property is redeemed after the purchaser has
been given possession
.1 the redeemer shall be entitled to deduct from the price
of redemption any rentals that said purchaser may
have collected in case the property or any part thereof
was rented
. the redeemer may deduct from the price the interest of
one per centum per month if the purchaser
.a occupied the property as his own dwelling, it
being town property, or
.b used it gainfully, it being rural property
). Rule #>
General Procedure in Iudicial 7oreclosure
Sectio '. $omplaint in action for foreclosure. * I
a actio for t+e foreclo!ure of a -ort,a,e or ot+er
ecu-)race upo real e!tate1 t+e co-plait !+all !et
fort+ t+e date ad due e8ecutio of t+e -ort,a,e: it!
a!!i,-et!1 if a/: t+e a-e! ad re!idece! of t+e
-ort,a,or ad t+e -ort,a,ee: a de!criptio of t+e
-ort,a,ed propert/: a !tate-et of t+e date of t+e ote
or ot+er docu-etar/ evidece of t+e o)li,atio
!ecured )/ t+e -ort,a,e1 t+e a-out clai-ed to )e
upaid t+ereo: ad t+e a-e! ad re!idece! of all
per!o! +avi, or clai-i, a itere!t i t+e propert/
!u)ordiate i ri,+t to t+at of t+e +older of t+e
-ort,a,e1 all of 0+o- !+all )e -ade defedat! i t+e
actio. "'a(
5ontents of 5omplaint in action for foreclosure
.1 date and due e;ecution of the mortgage, its
assignments, if any
. the names and residences of the mortgagor and the
mortgagee
.! a description of the mortgaged property
." a statement of the date of the note or other
documentary evidence of the obligation secured by the
mortgage
.% the amount claimed to be unpaid thereon& and
.' the names and residences of all persons having or
claiming an interest in the property subordinate in
right to that of the holder of the mortgage, all of whom
shall be made defendants in the action.
Sec. $. -udgment on foreclosure for payment or sale.
* If upo t+e trial i !uc+ actio t+e court !+all fid
t+e fact! !et fort+ i t+e co-plait to )e true1 it !+all
a!certai t+e a-out due to t+e plaitiff upo t+e
-ort,a,e de)t or o)li,atio1 icludi, itere!t ad
ot+er c+ar,e! a! approved )/ t+e court1 ad co!t!1 ad
!+all reder .ud,-et for t+e !u- !o foud due ad
order t+at t+e !a-e )e paid to t+e court or to t+e
.ud,-et o)li,ee 0it+i a period of ot le!! t+a iet/
"?9( da/! or -ore t+a oe +udred t0et/ "'$9( da/!
fro- t+e etr/ of .ud,-et1 ad t+at i default of !uc+
pa/-et t+e propert/ !+all )e !old at pu)lic auctio to
!ati!f/ t+e .ud,-et. "$a(
If upon the trial in such action the court shall find the facts
set forth in the complaint to be true, it shall
.1 ascertain the amount due to the plaintiff upon the
mortgage debt or obligation, including interest and
other charges as approved by the court, and costs,
. render /udgment for the sum so found due and
.! order that
.a the due amount to be paid to the court or to the
/udgment obligee within a period of not less than
+< days nor more than 1< days from the entry of
/udgment, and
.b in default of such payment the property shall be
sold at public auction to satisfy the /udgment
Sec. 2. Sale of mortgaged property* effect. * W+e
t+e defedat1 after )ei, directed to do !o a! provided
i t+e e8t precedi, !ectio1 fail! to pa/ t+e a-out of
t+e .ud,-et 0it+i t+e period !pecified t+erei1 t+e
court1 upo -otio1 !+all order t+e propert/ to )e !old
i t+e -aer ad uder t+e provi!io! of Rule 2? ad
ot+er re,ulatio! ,overi, !ale! of real e!tate uder
e8ecutio. Suc+ !ale !+all ot affect t+e ri,+t! of
per!o! +oldi, prior ecu-)race! upo t+e propert/
or a part t+ereof1 ad 0+e cofir-ed )/ a order of
t+e court1 al!o upo -otio1 it !+all operate to dive!t
t+e ri,+t! i t+e propert/ of all t+e partie! to t+e actio
ad to ve!t t+eir ri,+t! i t+e purc+a!er1 !u).ect to !uc+
ri,+t! of rede-ptio a! -a/ )e allo0ed )/ la0.
3po t+e fialit/ of t+e order of cofir-atio or
upo t+e e8piratio of t+e period of rede-ptio 0+e
allo0ed )/ la01 t+e purc+a!er at t+e auctio !ale or la!t
rede-ptioer1 if a/1 !+all )e etitled to t+e po!!e!!io
of t+e propert/ ule!! a t+ird part/ i! actuall/ +oldi,
t+e !a-e adver!el/ to t+e .ud,-et o)li,or. T+e !aid
purc+a!er or la!t rede-ptioer -a/ !ecure a 0rit of
po!!e!!io1 upo -otio1 fro- t+e court 0+ic+ ordered
t+e foreclo!ure. "2a(
3he plaintiff need not serve the motion to order foreclosure
sale.
@hen the defendant fails to pay the amount of the
/udgment
.1 the court, upon motion, shall order the property to be
sold on e;ecution
. such sale shall not affect the rights of persons holding
prior encumbrances upon the property or a part thereof
.! when confirmed by an order of the court, also upon
motion -by the purchaser., it shall operate to divest the
rights in the property of all the parties to the action
and to vest their rights in the purchaser, sub/ect to
such rights of redemption as may be allowed by law.
.4 Dpon the finality of the order of confirmation or upon
the e;piration of the period of redemption when
allowed by law, unless a !
rd
party is actually holding
the same adversely to the /udgment obligor
.a the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the
possession of the property
.b the said purchaser or last redemptioner may
secure a writ of possession, upon motion, from
the court which ordered the foreclosure.
Sec. 5. Disposition of proceeds of sale. * T+e
a-out reali@ed fro- t+e foreclo!ure !ale of t+e
-ort,a,ed propert/ !+all1 after deducti, t+e co!t! of
t+e !ale1 )e paid to t+e per!o foreclo!i, t+e -ort,a,e1
ad 0+e t+ere !+all )e a/ )alace or re!idue1 after
pa/i, off t+e -ort,a,e de)t due1 t+e !a-e !+all )e
paid to .uior ecu-)racer! i t+e order of t+eir
priorit/1 to )e a!certaied )/ t+e court1 or if t+ere )e o
!uc+ ecu-)racer! or t+ere )e a )alace or re!idue
after pa/-et to t+e-1 t+e to t+e -ort,a,or or +i!
dul/ aut+ori@ed a,et1 or to t+e per!o etitled to it.
"5a(
$isposition of proceeds of sale after deducting the costs of
the sale
.1 paid to the mortgagee
. any balance or residue is paid to /unior encumbrancers
in the order of their priority, to be ascertained by the
court,
.! if there be no such encumbrancers or there be a
balance or residue after payment to them, then to the
mortgagor or his duly authoriFed agent, or to the
person entitled to it
Sec. 6. 1ow sale to proceed in case the de(t is not all
due. * If t+e de)t for 0+ic+ t+e -ort,a,e or
ecu-)race 0a! +eld i! ot all due a! provided i t+e
.ud,-et1 a! !oo a! a !ufficiet portio of t+e
propert/ +a! )ee !old to pa/ t+e total a-out ad t+e
co!t! due1 t+e !ale !+all ter-iate: ad after0ard!1 a!
ofte a! -ore )eco-e! due for pricipal or itere!t ad
ot+er valid c+ar,e!1 t+e court -a/1 o -otio1 order
-ore to )e !old. But if t+e propert/ caot )e !old i
portio! 0it+out pre.udice to t+e partie!1 t+e 0+ole
!+all )e ordered to )e !old i t+e fir!t i!tace1 ad t+e
etire de)t ad co!t! !+all )e paid1 if t+e proceed! of
t+e !ale )e !ufficiet t+erefor1 t+ere )ei, a re)ate of
itere!t 0+ere !uc+ re)ate i! proper. "6a(
If the debt for which the mortgage or encumbrance was
held is not all due as provided in the /udgment
.1 as soon as a sufficient portion of the property has been
sold to pay the total amount and the costs due, the sale
shall terminate& and
. afterwards, as often as more becomes due for principal
or interest and other valid charges, the court may, on
motion, order more to be sold
.! if the property cannot be sold in portions without
pre/udice to the parties
.a the whole shall be ordered to be sold in the first
instance
.b the entire debt and costs shall be paid, if the
proceeds of the sale be sufficient therefore
.c there being a rebate of interest where such rebate
is proper
Sec. #. Deficiency +udgment. * If upo t+e !ale of
a/ real propert/ a! provided i t+e e8t precedi,
!ectio t+ere )e a )alace due to t+e plaitiff after
appl/i, t+e proceed! of t+e !ale1 t+e court1 upo
-otio1 !+all reder .ud,-et a,ai!t t+e defedat
for a/ !uc+ )alace for 0+ic+1 )/ t+e record of t+e
ca!e1 +e -a/ )e per!oall/ lia)le to t+e plaitiff1 upo
0+ic+ e8ecutio -a/ i!!ue i--ediatel/ if t+e )alace i!
all due at t+e ti-e of t+e reditio of t+e .ud,-et:
ot+er0i!e1 t+e plaitiff !+all )e etitled to e8ecutio at
!uc+ ti-e a! t+e )alace re-aii, )eco-e! due uder
t+e ter-! of t+e ori,ial cotract1 0+ic+ ti-e !+all )e
!tated i t+e .ud,-et. "#a(
If upon the sale of any real property there be a balance due
to the plaintiff after applying the proceeds of the sale
.1 the court, upon motion, shall render /udgment against
the defendant for any such balance for which, by the
record of the case, he may be personally liable to the
plaintiff
. if the balance is
.a all due at the time of the rendition of the
/udgment > e;ecution may issue immediately
.b not all due at the time of the rendition of the
/udgment > the plaintiff shall be entitled to
e;ecution at such time as the balance remaining
becomes due, which time shall be stated in the
/udgment
Sec. &. )egistration. * A certified cop/ of t+e fial
order of t+e court cofir-i, t+e !ale !+all )e
re,i!tered i t+e re,i!tr/ of deed!. If o ri,+t of
rede-ptio e8i!t!1 t+e certificate of title i t+e a-e of
t+e -ort,a,or !+all )e cacelled1 ad a e0 oe i!!ued
i t+e a-e of t+e purc+a!er.
W+ere a ri,+t of rede-ptio e8i!t!1 t+e certificate
of title i t+e a-e of t+e -ort,a,or !+all ot )e
cacelled1 )ut t+e certificate of !ale ad t+e order
cofir-i, t+e !ale !+all )e re,i!tered ad a )rief
-e-oradu- t+ereof -ade )/ t+e re,i!trar of deed!
upo t+e certificate of title. I t+e evet t+e propert/ i!
redee-ed1 t+e deed of rede-ptio !+all )e re,i!tered
0it+ t+e re,i!tr/ of deed!1 ad a )rief -e-oradu-
t+ereof !+all )e -ade )/ t+e re,i!trar of deed! o !aid
certificate of title.
If t+e propert/ i! ot redee-ed1 t+e fial deed of
!ale e8ecuted )/ t+e !+eriff i favor of t+e purc+a!er at
t+e foreclo!ure !ale !+all )e re,i!tered 0it+ t+e re,i!tr/
of deed!: 0+ereupo t+e certificate of title i t+e a-e
of t+e -ort,a,or !+all )e cacelled ad a e0 oe
i!!ued i t+e a-e of t+e purc+a!er. "(
A certified copy of the final order of the court confirming
the sale shall be registered in the registry of deeds.
.1 If no right of redemption e;ists * the title of the
mortgagor is cancelled, and a new one for the
purchaser is issued
. @here a right of redemption e;ists
.a the title of the mortgagor shall not be cancelled,
but the certificate of sale and the order confirming
the sale shall be registered and a brief
memorandum thereof made by the registrar of
deeds upon the certificate of title.
.b @here the property is
.1 6edeemed > the deed of redemption
shall be registered with the 6o$, and a brief
memorandum thereof shall be made by the
6o$ on said certificate of title.
. not redeemed > the final deed of sale
e;ecuted by the sheriff in favor of the
purchaser at the foreclosure sale shall be
registered with the 6o$& whereupon the title
of the mortgagor is cancelled and a new one
for the purchaser is issued
Sec. >. Applica(ility of other pro#isions. * T+e
provi!io! of !ectio! 2'1 2$ ad 25 of Rule 2? !+all )e
applica)le to t+e .udicial foreclo!ure of real e!tate
-ort,a,e! uder t+i! Rule i!ofar a! t+e for-er are ot
ico!i!tet 0it+ or -a/ !erve to !upple-et t+e
provi!io! of t+e latter. ">a(
cf 6ule !+, 4ecs !1, !, and !"
4ec. !1. Manner of using premises
pending redemption- +aste restrained.
N Dntil the e;piration of the time
allowed for redemption, the court may,
as in other proper cases, restrain the
commission of waste on the property by
in/unction, on the application of the
purchaser or the /udgment obligee, with
or without notice& but it is not waste for a
person in possession of the property at
the time of the sale, or entitled to
possession afterwards, during the period
allowed for redemption, to continue to
use it in the same manner in which it was
previously used& or to use it in the
ordinary course of husbandry& or to make
the necessary repairs to buildings
thereon while he occupies the property.
-!!a.
4ec. !. #ents( earnings and income of
property pending redemption. N 3he
purchaser or a redemptioner shall not be
entitled to receive the rents, earnings and
income of the property sold on
e;ecution, or the value of the use and
occupation thereof when such property is
in the possession of a tenant. All rents,
earnings and income derived from the
property pending redemption shall
belong to the /udgment obligor until the
e;piration of his period of redemption.
-!"a.
4ec. !". #ecovery of price if sale not
effective- revival of .udgment. N If the
purchaser of real property sold on
e;ecution, or his successor in interest,
fails to recover the possession thereof, or
is evicted therefrom, in consequence of
irregularities in the proceedings
concerning the sale, or because the
/udgment has been reversed or set aside,
or because the property sold was e;empt
from e;ecution, or because a third
person has vindicated his claim to the
property, he may on motion in the same
action or in a separate action recover
from the /udgment obligee the price
paid, with interest, or so much thereof as
has not been delivered to the /udgment
obligor& or he may, on motion, have the
original /udgment revived in his name
for the whole price with interest, or so
much thereof as has been delivered to
the /udgment obligor. 3he /udgment so
revived shall have the same force and
effect as an original /udgment would
have as of the date of the revival and no
more. -!'a.
$uring the redemption period, the court may restrain the
commission of waste on the property by in/unction, on the
application of the purchaser or the /udgment obligee.
All rents, earnings and income derived from the property
pending redemption shall belong to the /udgment obligor.
Purchaser may on motion recover from the /udgment
obligee the price paid, with interest, or so much thereof as
has not been delivered to the /udgment obligor, or have the
original /udgment revived, if he
.1 fails to recover the possession
. is evicted, because of
.a irregularities in the proceedings concerning the
sale, or
.b the /udgment has been reversed or set aside, or
.c the property sold was e;empt from e;ecution, or
.d a third person has vindicated his claim to the
property
c. Ca!e!
#e!abilitation inance Corporation v. Alto Surety, 1<(
Phil !)( -1+'<.
7acts8 Palma mortgaged his land in favor of 675.
3hereafter with the consent of 675, Palma mortgaged the
same property to Alto. :oth mortgages were duly
registered. 675 foreclosed without notifying Alto and was
the highest bidder. 675 consolidates ownership but the
mortgage of Alto was carried over the new title. 675 now
seeks to have Alto9s mortgage cancelled.
2eld8 If the /unior mortgagor was not notified of the
foreclosure of the 1
st
mortgage, he can not be considered to
have terminated or e;tinguished the rights of said /unior
encumbrancer over the property.
Bscolin8 =ther mortgagees who have superior lien need not
be impleaded. 3he right of /unior mortgagees who have not
been impleaded is not lost by the foreclosure of the
property. 3he /unior mortgagee may redeem the property
by paying the obligation of the mortagor to the foreclosing
mortgagee. Iunior mortgagees are not indispensable
parties, but it is advisable to implead them.
/iglao v. $atones, +< Phil (% -1+%1. Prior to confirmation
of the sale, a purchaser in a foreclosure sale has no right to
possession. 1either can the mortgagors compel the
puchaser to pay prior to the confirmation of the foreclosure
sale. 2earing is required before confirmation can take
place. After foreclosure and prior to confirmation, the
mortgagor can still e;ercise his equity of redemption.
1otice and hearing of motion for confirmation are
essential to the validity of an order of confirmation of the
foreclosure sale.
Bscolin8 #otion for foreclosure sale need not be served on
the other party. It is an e;*parte motion. 2owever, a motion
for confirmation of title must be served on the other party.
GSIS v. CI of Iloilo, 1(% 456A 1+ -1+)+. 3here is no
right of redemption from a /udicial foreclosure after
confirmation, e;cept those granted in case of mortgagees
who are banks or banking institutions. In /udicial
foreclosure, there is only an equity of redemption where
the morgagor can redeem within +< days from finality of
/udgment, and any time before confirmation of foreclosure
sale. =nly /udicial foreclosure of mortgages to banking
institutions, and those made e;tra/udicially are sub/ect to
legal redemption. 4ince G4I4 is not a bank or banking
institution, its /udicial foreclosure of the mortgage is not
sub/ect to redemption after the foreclosure sale has been
confirmed.
Cruz v. IAC, 1'+ 456A + -1+)+. In the absence of
agreement, the +< day period -and any time prior to
confirmation of foreclosure sale. to e;ercise the equity of
redemption has to be respected. Bquity of redemption may
be waived through a compromise agreement.
0!o v. CA, <! 456A 1'< -1++1. :oth during and after
the redemption period, the purchaser is entitled to a writ of
possession, regardless whether there is a pending suit for
annulment of the mortgage or the foreclosure itself.
#o1as v. CA, " 456A -1++!.
7acts8 6o;as is the owner of a parcel of land. 3he land was
mortgaged in favor of 6ural :ank of $umalag. 3he
mortgage was foreclosed and sold to 6ural bank of
$umalag as the highest bidder, who was able to
consolidate ownership after e;piration of the redemption
period. 6o;as files a complaint for cancellation of
foreclosure of mortgage and annulment of auction sale on
the ground that the foreclosure did not comply with the
requirement of giving written notices to all possible
redemptioners. 3he 5ertificate of Posting e;ecuted by the
sheriff states that he posted ! copies of the notice of public
auction sale in ! conspicuous public places in the
municipality of Panay, where the sub/ect land was situated
and in like manner in 6o;as 5ity, where the public auction
sale took place. 7urthermore, the notice was posted only in
the #unicipality, but not in the barrio where the property
was located.
2eld8 Publication of notice of mortgage foreclosure sales
must be strictly complied with, and that a slight deviation
therefrom will invalidate the notice and render the sale
voidable. 7ailure to publish notice of auction sale as
required by the statute constitutes a /urisdictional defect
which invalidates the sale. 3here was a failure to publish
the notices of auction sale. Proof of publication shall be
accomplished by an affidavit of the sheriff or officer
conducting the foreclosure sale. In this case, the sheriff
e;ecuted a certificate of posting, which is not the affidavit
required by law. An affidavit is a sworn statement in
writing whereas a certificate is merely a statement in
writing. 4trict compliance with the aforementioned
provision is mandated. 4ubstantial compliance is not
enough.
San 2ose v. CA, % 456A "%< -1++!. 7ailure to state the
correct 353 number is fatal to the notice and the resulting
foreclosure sale of mortgaged land. 5orrect technical
description does not cure the defect.
>. Partitio
$efine Partition
a. Rule #?
General Procedure in Partition
Sectio '. $omplaint in action for partition of real
estate. * A per!o +avi, t+e ri,+t to co-pel t+e
partitio of real e!tate -a/ do !o a! provided i t+i!
Rule1 !etti, fort+ i +i! co-plait t+e ature ad
e8tet of +i! title ad a ade4uate de!criptio of t+e
real e!tate of 0+ic+ partitio i! de-aded ad .oii,
a! defedat! all ot+er per!o! itere!ted i t+e
propert/. "'a(
5ontents of the 5omplaint for partition of real estate
.1 nature and e;tent of his title
. an adequate description of the real estate of which
partition is demanded
.! /oining as defendants all other persons interested in
the property.
Sec. $. Order for partition, and partition (y
agreement thereunder. * If after t+e trial t+e court
fid! t+at t+e plaitiff +a! t+e ri,+t t+ereto1 it !+all
order t+e partitio of t+e real e!tate a-o, all t+e
partie! i itere!t. T+ereupo t+e partie! -a/1 if t+e/
are a)le to a,ree1 -a7e t+e partitio a-o, t+e-!elve!
)/ proper i!tru-et! of cove/ace1 ad t+e court
!+all cofir- t+e partitio !o a,reed upo )/ all t+e
partie!1 ad !uc+ partitio1 to,et+er 0it+ t+e order of
t+e court cofir-i, t+e !a-e1 !+all )e recorded i t+e
re,i!tr/ of deed! of t+e place i 0+ic+ t+e propert/ i!
!ituated. "$a(
A fial order decreei, partitio ad accouti,
-a/ )e appealed )/ a/ part/ a,,rieved t+ere)/. "(
cf 4pecial Proceedings on e;tra*/udicial partition of the
estate
If after the trial the court finds that the plaintiff has the
right thereto, it shall order the partition of the real estate
among all the parties in interest. A final order decreeing
partition and accounting may be appealed by any party
aggrieved thereby.
Joluntary partition
.1 parties agree to make the partition among themselves
by proper instruments of conveyance
. the court confirms the partition so agreed
.! partition, together with the order of the court
confirming the same, recorded in the 6o$ of the place
in which the property is situated
Sec. 2. $ommissioners to make partition when
parties fail to agree. * If t+e partie! are ua)le to a,ree
upo t+e partitio1 t+e court !+all appoit ot -ore
t+a t+ree "2( co-petet ad di!itere!ted per!o! a!
co--i!!ioer! to -a7e t+e partitio1 co--adi,
t+e- to !et off to t+e plaitiff ad to eac+ part/ i
itere!t !uc+ part ad proportio of t+e propert/ a! t+e
court !+all direct. "2a(
Sec. 5. Oath and duties of commissioners. * Before
-a7i, !uc+ partitio1 t+e co--i!!ioer! !+all ta7e
ad !u)!cri)e a oat+ t+at t+e/ 0ill fait+full/ perfor-
t+eir dutie! a! co--i!!ioer!1 0+ic+ oat+ !+all )e filed
i court 0it+ t+e ot+er proceedi,! i t+e ca!e. I
-a7i, t+e partitio1 t+e co--i!!ioer! !+all vie0 ad
e8a-ie t+e real e!tate1 after due otice to t+e partie!
to atted at !uc+ vie0 ad e8a-iatio1 ad !+all +ear
t+e partie! a! to t+eir preferece i t+e portio of t+e
propert/ to )e !et apart to t+e- ad t+e co-parative
value t+ereof1 ad !+all !et apart t+e !a-e to t+e
partie! i lot! or parcel! a! 0ill )e -o!t advata,eou!
ad e4uita)le1 +avi, due re,ard to t+e i-prove-et!1
!ituatio ad 4ualit/ of t+e differet part! t+ereof. "5a(
Sec. 6. Assignment or sale of real estate (y
commissioners. * W+e it i! -ade to appear to t+e
co--i!!ioer! t+at t+e real e!tate1 or a portio t+ereof1
caot )e divided 0it+out pre.udice to t+e itere!t! of
t+e partie!1 t+e court -a/ order it a!!i,ed to oe of
t+e partie! 0illi, to ta7e t+e !a-e1 provided +e pa/! to
t+e ot+er partie! !uc+ a-out! a! t+e co--i!!ioer!
dee- e4uita)le1 ule!! oe of t+e itere!ted partie! a!7!
t+at t+e propert/ )e !old i!tead of )ei, !o a!!i,ed1
i 0+ic+ ca!e t+e court !+all order t+e co--i!!ioer!
to !ell t+e real e!tate at pu)lic !ale uder !uc+
coditio! ad 0it+i !uc+ ti-e a! t+e court -a/
deter-ie. "6a(
Sec. #. )eport of commissioners* proceedings not
(inding until confirmed. * T+e co--i!!ioer! !+all
-a7e a full ad accurate report to t+e court of all t+eir
proceedi,! a! to t+e partitio1 or t+e a!!i,-et of
real e!tate to oe of t+e partie!1 or t+e !ale of t+e !a-e.
3po t+e fili, of !uc+ report1 t+e cler7 of court !+all
!erve copie! t+ereof o all t+e itere!ted partie! 0it+
otice t+at t+e/ are allo0ed te "'9( da/! 0it+i 0+ic+
to file o).ectio! to t+e fidi,! of t+e report1 if t+e/ !o
de!ire. No proceedi, +ad )efore or coducted )/ t+e
co--i!!ioer! !+all pa!! t+e title to t+e propert/ or
)id t+e partie! util t+e court !+all +ave accepted t+e
report of t+e co--i!!ioer! ad redered .ud,-et
t+ereo. "#a(
Sec. &. Action of the court upon commissioners/
report. * 3po t+e e8piratio of t+e period of te "'9(
da/! referred to i t+e precedi, !ectio1 or eve )efore
t+e e8piratio of !uc+ period )ut after t+e itere!ted
partie! +ave filed t+eir o).ectio! to t+e report or t+eir
!tate-et of a,ree-et t+ere0it+1 t+e court -a/1 upo
+eari,1 accept t+e report ad reder .ud,-et i
accordace t+ere0it+: or1 for cau!e !+o01 reco--it
t+e !a-e to t+e co--i!!ioer! for furt+er report of
fact!: or !et a!ide t+e report ad appoit e0
co--i!!ioer!: or accept t+e report i part ad re.ect
it i part: ad -a/ -a7e !uc+ order ad reder !uc+
.ud,-et a! !+all effectuate a fair ad .u!t partitio of
t+e real e!tate1 or of it! value1 if a!!i,ed or !old a!
a)ove provided1 )et0ee t+e !everal o0er! t+ereof. "&(
If the parties are unable to agree upon the partition
.1 the court shall appoint not more than ! competent and
disinterested persons as commissioners to make the
partition
. commanding them to set off to the plaintiff and to
each party in interest such part and proportion of the
property as the court shall direct
.! commissioners shall take and subscribe an oath that
they will faithfully perform their duties as
commissioners. 3he oath shall be filed in court.
." 3he commissioners shall
.a view and e;amine the real estate, after due notice
to the parties to attend at such view and
e;amination, and
.b hear the parties as to their preference in the
portion of the property to be set apart to them and
the comparative value thereof
.c set apart the same to the parties in lots or parcels
as will be most advantageous and equitable,
having due regard to
.1 the improvements
. situation and
.! quality of the different parts
.% @hen the real estate, or a portion thereof, cannot be
divided without pre/udice to the interests of the
parties, the court may order it
.a assigned to one of the parties willing to take the
same, provided he pays to the other parties such
amounts as the commissioners deem equitable
.b sold at public sale by the commissioners, if one of
the interested parties so asks
.' 3he commissioners shall make a full and accurate
report to the court of all their proceedings as to the
partition, or the assignment of real estate to one of the
parties, or the sale of the same.
.( Dpon the filing of such report, the clerk of court shall
serve copies thereof on all the interested parties with
notice that they are allowed 1< days within which to
file ob/ections to the findings of the report, if they so
desire.
.) Dpon the e;piration of the period of 1< days, or even
before the e;piration of such period but after the
interested parties have filed their ob/ections to the
report or their statement of agreement therewith, the
court may, upon hearing
.a accept the report and render /udgment in
accordance therewith& or
.b for cause shown, recommit the same to the
commissioners for further report of facts& or
.c set aside the report and appoint new
commissioners& or
.d accept the report in part and re/ect it in part& and
.e may make such order and render such /udgment
as shall effectuate a fair and /ust partition of the
real estate, or of its value
.+ 1o proceeding had before or conducted by the
commissioners shall pass the title to the property or
bind the parties until the court shall have accepted the
report of the commissioners and rendered /udgment
thereon.
Sec. >. Accounting for rent and profits in action for
partition. * I a actio for partitio i accordace
0it+ t+i! Rule1 a part/ !+all recover fro- aot+er +i!
.u!t !+are of ret! ad profit! received )/ !uc+ ot+er
part/ fro- t+e real e!tate i 4ue!tio1 ad t+e
.ud,-et !+all iclude a allo0ace for !uc+ ret! ad
profit!. ">a(
Sec. ?. Power of guardian in such proceedings. *
T+e ,uardia or ,uardia ad lite- of a -ior or
per!o .udiciall/ declared to )e ico-petet -a/1 0it+
t+e approval of t+e court fir!t +ad1 do ad perfor- o
)e+alf of +i! 0ard a/ act1 -atter1 or t+i, re!pecti,
t+e partitio of real e!tate1 0+ic+ t+e -ior or per!o
.udiciall/ declared to )e ico-petet could do i
partitio proceedi,! if +e 0ere of a,e or co-petet.
"?a(
Sec. '9. $osts and expenses to (e taxed and
collected. * T+e court !+all e4uita)l/ ta8 ad
apportio )et0ee or a-o, t+e partie! t+e co!t! ad
e8pe!e! 0+ic+ accrue i t+e actio1 icludi, t+e
co-pe!atio of t+e co--i!!ioer!1 +avi, re,ard to
t+e itere!t! of t+e partie!1 ad e8ecutio -a/ i!!ue
t+erefor a! i ot+er ca!e!. "'9a(
Sec. ''. %he +udgment and its effect* copy to (e
recorded in registry of deeds. * If actual partitio of
propert/ i! -ade1 t+e .ud,-et !+all !tate defiitel/1 )/
-ete! ad )oud! ad ade4uate de!criptio1 t+e
particular portio of t+e real e!tate a!!i,ed to eac+
part/1 ad t+e effect of t+e .ud,-et !+all )e to ve!t i
eac+ part/ to t+e actio i !everalt/ t+e portio of t+e
real e!tate a!!i,ed to +i-. If t+e 0+ole propert/ i!
a!!i,ed to oe of t+e partie! upo +i! pa/i, to t+e
ot+er! t+e !u- or !u-! ordered )/ t+e court1 t+e
.ud,-et !+all !tate t+e fact of !uc+ pa/-et ad of
t+e a!!i,-et of t+e real e!tate to t+e part/ -a7i,
t+e pa/-et1 ad t+e effect of t+e .ud,-et !+all )e to
ve!t i t+e part/ -a7i, t+e pa/-et t+e 0+ole of t+e
real e!tate free fro- a/ itere!t o t+e part of t+e
ot+er partie! to t+e actio. If t+e propert/ i! !old ad
t+e !ale cofir-ed )/ t+e court1 t+e .ud,-et !+all
!tate t+e a-e of t+e purc+a!er or purc+a!er! ad a
defiite de!criptio of t+e parcel! of real e!tate !old to
eac+ purc+a!er1 ad t+e effect of t+e .ud,-et !+all )e
to ve!t t+e real e!tate i t+e purc+a!er or purc+a!er!
-a7i, t+e pa/-et or pa/-et!1 free fro- t+e clai-!
of a/ of t+e partie! to t+e actio. A certified cop/ of
t+e .ud,-et !+all i eit+er ca!e )e recorded i t+e
re,i!tr/ of deed! of t+e place i 0+ic+ t+e real e!tate i!
!ituated1 ad t+e e8pe!e! of !uc+ recordi, !+all )e
ta8ed a! part of t+e co!t! of t+e actio. "''a(
If actual partition of property is made
.1 the /udgment shall state definitely, by metes and
bounds and adequate description, the particular
portion of the real estate assigned to each party, the
effect of the /udgment shall be to vest in each party to
the action in severalty the portion of the real estate
assigned to him.
. If the whole property is assigned to one of the parties
upon his paying to the others the sum or sums ordered
by the court, the /udgment shall state the fact of such
payment and of the assignment of the real estate to the
party making the payment, and the effect of the
/udgment shall be to vest in the party making the
payment the whole of the real estate free from any
interest on the part of the other parties to the action.
.! If the property is sold and the sale confirmed by the
court, the /udgment shall state the name of the
purchaser or purchasers and a definite description of
the parcels of real estate sold to each purchaser, and
the effect of the /udgment shall be to vest the real
estate in the purchaser or purchasers making the
payment or payments, free from the claims of any of
the parties to the action.
." A certified copy of the /udgment shall in either case be
recorded in the registry of deeds of the place in which
the real estate is situated, and the e;penses of such
recording shall be ta;ed as part of the costs of the
action.
Sec. '$. either paramount rights nor amica(le
partition affected (y this )ule. * Not+i, i t+i! Rule
cotaied !+all )e co!trued !o a! to pre.udice1 defeat1
or de!tro/ t+e ri,+t or title of a/ per!o clai-i, t+e
real e!tate ivolved )/ title uder a/ ot+er per!o1 or
)/ title para-out to t+e title of t+e partie! a-o,
0+o- t+e partitio -a/ +ave )ee -ade: or !o a! to
re!trict or prevet per!o! +oldi, real e!tate .oitl/ or
i co--o fro- -a7i, a a-ica)le partitio t+ereof
)/ a,ree-et ad !uita)le i!tru-et! of cove/ace
0it+out recour!e to a actio. "'$a(
Sec. '2. Partition of personal property. * T+e
provi!io! of t+i! Rule !+all appl/ to partitio! of
e!tate! co-po!ed of per!oal propert/1 or of )ot+ real
ad per!oal propert/1 i !o far a! t+e !a-e -a/ )e
applica)le. "'2(
). Ca!e!
#oque v. IAC, 1'% 456A 11) -1+)). An action for
partition N which is typically brought by a person
claiming to be co*owner of a specified property against a
defendant or defendants whom the plaintiff recogniFes to
be co*owners N may be seen to present simultaneously
two principal issues. 7irst, there is the issue of whether the
plaintiff is indeed a co*owner of the property sought to be
partitioned. 4econd, assuming that the plaintiff
successfully hurdles the first issue, there is the secondary
issue of how the property is to be divided between plaintiff
and defendant-s. N i.e., what portion should go to which
co*owner.
4hould the trial court find that the defendants do not
dispute the status of the plaintiff as co*owner, the court can
forthwith proceed to the actual partitioning of the property
involved. In case the defendants assert in their Answer
e;clusive title in themselves adversely to the plaintiff, the
court should not dismiss the plaintiffHs action for partition
but, on the contrary and in the e;ercise of its general
/urisdiction, resolve the question of whether the plaintiff is
co*owner or not. 4hould the trial court find that the
plaintiff was unable to sustain his claimed status as co*
owner, or that the defendants are or have become the sole
and e;clusive owners of the property involved, the court
will necessarily have to dismiss the action for partition.
3his result would be reached, not because the wrong action
was commenced by the plaintiff, but rather because the
plaintiff having been unable to show co*ownership rights
in himself, no basis e;ists for requiring the defendants to
submit to partition the property at stake. If, upon the other
hand, the court after trial should find the e;istence of co*
ownership among the parties litigant, the court may and
should order the partition of the property in the same
action. Iudgment for one or the other party being on the
merits, the losing party may then appeal the same. In either
case, however, it is unnecessary to require the plaintiff to
file another action, separate and independent from that for
partition originally instituted, /ust to determine who are the
co*owners. 7unctionally, an action for partition may be
seen to be at once an action for declaration of co*
ownership and for segregation and conveyance of a
determinate portion of the property involved.
7urthermore, no matter how long the co*ownership has
lasted, a co*owner can always opt out of the co*ownership,
and provided the defendant co*owners or co*heirs have
theretofore e;pressly or impliedly recogniFed the co*
ownership, they cannot set up as a defense the prescription
of the action for partition. :ut if the defendants show that
they had previously asserted title in themselves adversely
to the plaintiff and for the requisite period of time, the
plaintiff9s right to require recognition of his status as a co*
owner will have been lost by prescription and the court
cannot issue an order requiring partition.
abrica v. CA, 1"' 456A %< -1+)'. 3he records of the
case clearly reveal that the main purpose of the complaint
is to determine who between the parties are the true
owners and entitled to the e;clusive use of the disputed
properties. @hile it is true that the complaint is one for
partition, it is one which is premised on the resolution of
the issue on the validity of the oral partition allegedly
made in favor of defendants and the two deeds of
conveyance e;ecuted in the names of the heirs of the
deceased spouses. Dnless this issue of ownership is
definitely and finally resolved, it would be premature to
effect a partition of the disputed properties.
@hen the trial court rendered its /udgment of partition in
favor of the plaintiffs, re/ecting defendantsH claim of
e;clusive ownership of the properties by previous oral
partition, it rendered a final or definitive /udgment on the
merits from which the party adversely affected can make
an appeal. 3he decision of the trial court declaring null the
aforesaid conveyances and granting recovery of the
properties for the purpose of ordering their partition is a
definitive /udgment because it decided the rights of the
parties upon the issue submitted. It was not, therefore, an
interlocutory order. A /udgment which grants recovery of
the ownership and possession of property in favor of one
party as against the adverse claim of title of the other is in
effect a final /udgment which is appealable. @here the
primary purpose of a case is to ascertain and determine
who, as between plaintiff and defendant, is the true owner
and entitled to the e;clusive use of the disputed property,
the /udgment rendered by the lower court is a /udgment on
the merits as to those questions, and that the order for an
accounting is merely incidental to such /udgment.
?. =orci)le Etr/ ad 3la0ful Detaier
a. Revi!ed Rule o Su--ar/ Procedure
cf 6evised 6ule on 4ummary Procedure under =rdinary
5ivil Actions, 6ule %
). Rule &9
General procedure in e/ectment cases
.1 Jerified complaint filed with the #35 within 1 year
from unlawful deprivation or withholding of
possession
. Answer within 1< days from receipt of summons
.! Preliminary conference within !< days from answer
." 5ourt issues preliminary conference order with % days.
.% Parties submit affidavits of witnesses, other evidences
and position papers within 1< days from receipt of
preliminary conference order
.' 5ourt renders /udgment within !< days from receipt of
affidavits and position papers.
Sectio '. Who may institute proceedings, and when.
* Su).ect to t+e provi!io! of t+e e8t !ucceedi,
!ectio1 a per!o deprived of t+e po!!e!!io of a/ lad
or )uildi, )/ force1 iti-idatio1 t+reat1 !trate,/1 or
!tealt+1 or a le!!or1 vedor1 vedee1 or ot+er per!o
a,ai!t 0+o- t+e po!!e!!io of a/ lad or )uildi, i!
ula0full/ 0it++eld after t+e e8piratio or ter-iatio
of t+e ri,+t to +old po!!e!!io1 )/ virtue of a/
cotract1 e8pre!! or i-plied1 or t+e le,al
repre!etative! or a!!i,! of a/ !uc+ le!!or1 vedor1
vedee1 or ot+er per!o1 -a/1 at a/ ti-e 0it+i oe "'(
/ear after !uc+ ula0ful deprivatio or 0it++oldi, of
po!!e!!io1 )ri, a actio i t+e proper Muicipal
Trial Court a,ai!t t+e per!o or per!o! ula0full/
0it++oldi, or deprivi, of po!!e!!io1 or a/ per!o
or per!o! clai-i, uder t+e-1 for t+e re!titutio of
!uc+ po!!e!!io1 to,et+er 0it+ da-a,e! ad co!t!. "'a(
@ho may institute proceedings
.1 a person deprived of the possession of any land or
building by force, intimidation, threat, strategy, or
stealth, or
. a lessor, vendor, vendee, or other person against whom
the possession of any land or building is unlawfully
withheld after the e;piration or termination of the
right to hold possession, by virtue of any contract, or
.! the legal representatives or assigns of any such lessor,
vendor, vendee, or other person
@hen > at any time within 1 year after such unlawful
deprivation or withholding of possession
@here > before the #35
Sec. $. "essor to proceed against lessee only after
demand. * 3le!! ot+er0i!e !tipulated1 !uc+ actio )/
t+e le!!or !+all )e co--eced ol/ after de-ad to
pa/ or co-pl/ 0it+ t+e coditio! of t+e lea!e ad to
vacate i! -ade upo t+e le!!ee1 or )/ !ervi, 0ritte
otice of !uc+ de-ad upo t+e per!o foud o t+e
pre-i!e!1 or )/ po!ti, !uc+ otice o t+e pre-i!e! if
o per!o )e foud t+ereo1 ad t+e le!!ee fail! to
co-pl/ t+ere0it+ after fiftee "'6( da/! i t+e ca!e of
lad or five "6( da/! i t+e ca!e of )uildi,!. "$a(
Dnless otherwise stipulated, an unlawful detained by the
lessor shall be commenced only after
.1 demand
.a to pay or comply with the conditions of the lease
and
.b to vacate
. made either
.a upon the lessee, or
.b by serving written notice of upon the person
found on the premises, or
.c by posting such notice on the premises if no
person be found thereon
.! and the lessee fails to comply within
.a 1% days in the case of land or
.b % days in the case of buildings
Sec. 2. Summary procedure. * E8cept i ca!e!
covered )/ t+e a,ricultural teac/ la0! or 0+e t+e
la0 ot+er0i!e e8pre!!l/ provide!1 all actio! for forci)le
etr/ ad ula0ful detaier1 irre!pective of t+e a-out
of da-a,e! or upaid retal! !ou,+t to )e recovered1
!+all )e ,overed )/ t+e !u--ar/ procedure
+ereuder provided. "(
All e/ectment actions, irrespective of the amount of
damages or unpaid rentals sought to be recovered, shall be
governed by the summary procedure, e;cept in cases
.1 covered by the agricultural tenancy laws or
. when the law otherwise e;pressly provides
Sec. 5. Pleadings allowed. * T+e ol/ pleadi,!
allo0ed to )e filed are t+e co-plait1 co-pul!or/
couterclai- ad cro!!%clai- pleaded i t+e a!0er1
ad t+e a!0er! t+ereto. All pleadi,! !+all )e verified.
"2a1 RSP(
Pleadings allowed to be filed
.1 complaint
. compulsory counterclaim
.! answers
." cross*claim pleaded in the answer
All pleadings shall be verified.
Sec. 6. Action on complaint. * T+e court -a/1 fro-
a e8a-iatio of t+e alle,atio! i t+e co-plait ad
!uc+ evidece a! -a/ )e attac+ed t+ereto1 di!-i!! t+e
ca!e outri,+t o a/ of t+e ,roud! for t+e di!-i!!al of
a civil actio 0+ic+ are apparet t+erei. If o ,roud
for di!-i!!al i! foud1 it !+all fort+0it+ i!!ue !u--o!.
"(
3he court may, from an e;amination of the allegations in
the complaint and such evidence as may be attached
thereto
.1 dismiss the case outright on any of the grounds for the
dismissal of a civil action which are apparent therein,
or
. if no ground for dismissal is found, issue summons
Sec. #. Answer. * Wit+i te "'9( da/! fro- !ervice
of !u--o!1 t+e defedat !+all file +i! a!0er to t+e
co-plait ad !erve a cop/ t+ereof o t+e plaitiff.
Affir-ative ad e,ative defe!e! ot pleaded t+erei
!+all )e dee-ed 0aived1 e8cept lac7 of .uri!dictio over
t+e !u).ect -atter. Cro!!%clai-! ad co-pul!or/
couterclai-! ot a!!erted i t+e a!0er !+all )e
co!idered )arred. T+e a!0er to couterclai-! or
cro!!%clai-! !+all )e !erved ad filed 0it+i te "'9(
da/! fro- !ervice of t+e a!0er i 0+ic+ t+e/ are
pleaded. "61 RSP(
Answer
.1 @ithin 1< days from service of summons
. served a copy on the plaintiff
.! defenses not pleaded are waived, e;cept lack of
/urisdiction over the sub/ect matter
." 5ross*claims and compulsory counterclaims not
asserted are barred.
.% 3he answer to counterclaims or cross*claims shall be
served and filed within 1< days from service of the
answer in which they are pleaded.
Sec. &. 'ffect of failure to answer. * S+ould t+e
defedat fail to a!0er t+e co-plait 0it+i t+e
period a)ove provided1 t+e court1 -otu proprio or o
-otio of t+e plaitiff1 !+all reder .ud,-et a! -a/
)e 0arrated )/ t+e fact! alle,ed i t+e co-plait ad
li-ited to 0+at i! pra/ed for t+erei. T+e court -a/ i
it! di!cretio reduce t+e a-out of da-a,e! ad
attore/E! fee! clai-ed for )ei, e8ce!!ive or ot+er0i!e
uco!cioa)le1 0it+out pre.udice to t+e applica)ilit/
of !ectio 2 "c(1 Rule ? if t+ere are t0o or -ore
defedat!. "#1 RSP(
cf 6ule +, 4ec. ! -c.
-c. Effect of partial default.N @hen a
pleading asserting a claim states a
common cause of action against several
defending parties, some of whom answer
and the others fail to do so, the court
shall try the case against all upon the
answers thus filed and render /udgment
upon the evidence presented. -"a, 61).
Bffect of failure to answer
.1 the court, motu proprio or on motion of the plaintiff,
shall render /udgment
.a as may be warranted by the facts alleged in the
complaint and
.b limited to what is prayed for therein
. 3he court may in its discretion reduce the amount of
damages and attorney9s fees claimed for being
e;cessive or otherwise unconscionable
Sec. >. Preliminary conference* appearance of
parties. * Not later t+a t+irt/ "29( da/! after t+e la!t
a!0er i! filed1 a preli-iar/ coferece !+all )e +eld.
T+e provi!io! of Rule '> o pre%trial !+all )e
applica)le to t+e preli-iar/ coferece ule!!
ico!i!tet 0it+ t+e provi!io! of t+i! Rule.
T+e failure of t+e plaitiff to appear i t+e
preli-iar/ coferece !+all )e cau!e for t+e di!-i!!al
of +i! co-plait. T+e defedat 0+o appear! i t+e
a)!ece of t+e plaitiff !+all )e etitled to .ud,-et o
+i! couterclai- i accordace 0it+ t+e e8t precedi,
!ectio. All cro!!%clai-! !+all )e di!-i!!ed. "&1 RSP(
If a !ole defedat !+all fail to appear1 t+e plaitiff
!+all li7e0i!e )e etitled to .ud,-et i accordace
0it+ t+e e8t precedi, !ectio. T+i! procedure !+all
ot appl/ 0+ere oe of t0o or -ore defedat! !ued
uder a co--o cau!e of actio 0+o +ad pleaded a
co--o defe!e !+all appear at t+e preli-iar/
coferece.
No po!tpoe-et of t+e preli-iar/ coferece
!+all )e ,rated e8cept for +i,+l/ -eritoriou! ,roud!
ad 0it+out pre.udice to !uc+ !actio! a! t+e court i
t+e e8erci!e of !oud di!cretio -a/ i-po!e o t+e
-ovat. "(
@ithin !< days after the last answer is filed, a preliminary
conference shall be held.
Bffect of failure to appear in the preliminary conference by
the
.1 plaintiff > dismissal of his complaint& appearing
defendant entitled to /udgment on his counterclaim& all
cross*claims shall be dismissed.
. sole defendant > plaintiff entitled to /udgment on his
complaint
.! one of multiple defendants sued under a common
cause of action who had pleaded a common defense >
case continues
1o postponement of the preliminary conference shall be
granted e;cept for highly meritorious grounds and without
pre/udice to such sanctions as the court in the e;ercise of
sound discretion may impose on the movant.
Sec. ?. )ecord of preliminary conference. * Wit+i
five "6( da/! after t+e ter-iatio of t+e preli-iar/
coferece1 t+e court !+all i!!ue a order !tati, t+e
-atter! ta7e up t+erei1 icludi, )ut ot li-ited toD
'. W+et+er t+e partie! +ave arrived at a a-ica)le
!ettle-et1 ad if !o1 t+e ter-! t+ereof:
$. T+e !tipulatio! or ad-i!!io! etered ito )/
t+e partie!:
2. W+et+er1 o t+e )a!i! of t+e pleadi,! ad t+e
!tipulatio! ad ad-i!!io! -ade )/ t+e partie!1
.ud,-et -a/ )e redered 0it+out t+e eed of furt+er
proceedi,!1 i 0+ic+ evet t+e .ud,-et !+all )e
redered 0it+i t+irt/ "29( da/! fro- i!!uace of t+e
order:
5. A clear !pecificatio of -aterial fact! 0+ic+
re-ai cotroverted: ad
6. Suc+ ot+er -atter! iteded to e8pedite t+e
di!po!itio of t+e ca!e. ">1 RSP(
@ithin % days after the termination of the preliminary
conference, the court shall issue an order stating the
matters taken up therein.
Sec. '9. Su(mission of affida#its and position
papers. * Wit+i te "'9( da/! fro- receipt of t+e
order -etioed i t+e e8t precedi, !ectio1 t+e
partie! !+all !u)-it t+e affidavit! of t+eir 0ite!!e! ad
ot+er evidece o t+e factual i!!ue! defied i t+e
order1 to,et+er 0it+ t+eir po!itio paper! !etti, fort+
t+e la0 ad t+e fact! relied upo )/ t+e-. "?1 RSP(
@ithin 1< days from receipt of the preliminary conference
order, the parties shall submit
.1 the affidavits of their witnesses
. other evidence on the factual issues defined in the
order
.! their position papers setting forth the law and the facts
relied upon by them.
Sec. ''. Period for rendition of +udgment. * Wit+i
t+irt/ "29( da/! after receipt of t+e affidavit! ad
po!itio paper!1 or t+e e8piratio of t+e period for
fili, t+e !a-e1 t+e court !+all reder .ud,-et.
Ao0ever1 !+ould t+e court fid it ece!!ar/ to
clarif/ certai -aterial fact!1 it -a/1 duri, t+e !aid
period1 i!!ue a order !pecif/i, t+e -atter! to )e
clarified1 ad re4uire t+e partie! to !u)-it affidavit! or
ot+er evidece o t+e !aid -atter! 0it+i te "'9( da/!
fro- receipt of !aid order. <ud,-et !+all )e redered
0it+i fiftee "'6( da/! after t+e receipt of t+e la!t
affidavit or t+e e8piratio of t+e period for fili, t+e
!a-e.
T+e court !+all ot re!ort to t+e fore,oi,
procedure .u!t to ,ai ti-e for t+e reditio of t+e
.ud,-et. "(
@ithin !< days after receipt of the affidavits and position
papers, or the e;piration of the period for filing the same,
the court shall render /udgment.
2owever, should the court find it necessary to clarify
certain material facts, it may, during the said period, issue
an order specifying the matters to be clarified, and require
the parties to submit affidavits or other evidence on the
said matters within 1< days from receipt of said order.
Iudgment shall be rendered within 1% days after the receipt
of the last affidavit or the e;piration of the period for filing
the same.
3he court shall not resort to the foregoing procedure /ust to
gain time for the rendition of the /udgment.
Sec. '$. )eferral for conciliation. * Ca!e!
re4uiri, referral for cociliatio1 0+ere t+ere i! o
!+o0i, of co-pliace 0it+ !uc+ re4uire-et1 !+all )e
di!-i!!ed 0it+out pre.udice1 ad -a/ )e revived ol/
after t+at re4uire-et !+all +ave )ee co-plied 0it+.
"'>a1 RSP(
@here there was no O: proceedings when required, the
e/ectment case shall be dismissed without pre/udice.
Sec. '2. Prohi(ited pleadings and motions. * T+e
follo0i, petitio!1 -otio!1 or pleadi,! !+all ot )e
allo0edD
'. Motio to di!-i!! t+e co-plait e8cept o t+e
,roud of lac7 of .uri!dictio over t+e !u).ect -atter1
or failure to co-pl/ 0it+ !ectio '$:
$. Motio for a )ill of particular!:
2. Motio for e0 trial1 or for reco!ideratio of a
.ud,-et1 or for reopei, of trial:
5. Petitio for relief fro- .ud,-et:
6. Motio for e8te!io of ti-e to file pleadi,!1
affidavit! or a/ ot+er paper:
#. Me-orada:
&. Petitio for certiorari1 -ada-u!1 or pro+i)itio
a,ai!t a/ iterlocutor/ order i!!ued )/ t+e court:
>. Motio to declare t+e defedat i default:
?. Dilator/ -otio! for po!tpoe-et:
'9. Repl/:
''. T+ird%part/ co-plait!:
'$. Itervetio!. "'?a1 RSP(
Prohibited pleadings and motions
.1 #3$
. #otion for a bill of particulars&
.! #13, or #f6, or motion for reopening of trial&
." Petition for relief from /udgment&
.% #otion for e;tension
.' #emoranda&
.( Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the court&
.) #otion to declare the defendant in default&
.+ $ilatory motions for postponement&
.1< 6eply&
.11 !
rd
party complaints&
.1 Interventions
G68 #t$ not allowed.
B;ception8 =n grounds of
.1 lack of /urisdiction over sub/ect matter
. failure to resort to required conciliation proceedings
Sec. '5. Affida#its. * T+e affidavit! re4uired to )e
!u)-itted uder t+i! Rule !+all !tate ol/ fact! of
direct per!oal 7o0led,e of t+e affiat! 0+ic+ are
ad-i!!i)le i evidece1 ad !+all !+o0 t+eir
co-petece to te!tif/ to t+e -atter! !tated t+erei.
A violatio of t+i! re4uire-et -a/ !u).ect t+e
part/ or t+e cou!el 0+o !u)-it! t+e !a-e to
di!cipliar/ actio1 ad !+all )e cau!e to e8pu,e t+e
iad-i!!i)le affidavit or portio t+ereof fro- t+e
record. "$91 RSP(
3he affidavits required to be submitted under this 6ule
shall
.1 state only facts of direct personal knowledge of the
affiants which are admissible in evidence, and
. show their competence to testify to the matters stated
therein.
Sec. '6. Preliminary in+unction. * T+e court -a/
,rat preli-iar/ i.uctio1 i accordace 0it+ t+e
provi!io! of Rule 6> +ereof1 to prevet t+e defedat
fro- co--itti, furt+er act! of di!po!!e!!io a,ai!t
t+e plaitiff.
A po!!e!!or deprived of +i! po!!e!!io t+rou,+
forci)le etr/ or ula0ful detaier -a/1 0it+i five "6(
da/! fro- t+e fili, of t+e co-plait1 pre!et a -otio
i t+e actio for forci)le etr/ or ula0ful detaier for
t+e i!!uace of a 0rit of preli-iar/ -adator/
i.uctio to re!tore +i- i +i! po!!e!!io. T+e court
!+all decide t+e -otio 0it+i t+irt/ "29( da/! fro- t+e
fili, t+ereof. "2a(
3he court may grant preliminary in/unction to prevent the
defendant from committing further acts of dispossession
against the plaintiff.
A possessor deprived of his possession through forcible
entry or unlawful detainer may, within % days from the
filing of the complaint, ask for preliminary mandatory
in/unction in the e/ectment action to restore him in his
possession. 3he court shall decide the motion within !<
days from the filing thereof.
1ote that the court may now grant preliminary in/unction
in all e/ectment cases.
Sec. '#. )esol#ing defense of ownership. * W+e
t+e defedat rai!e! t+e defe!e of o0er!+ip i +i!
pleadi,! ad t+e 4ue!tio of po!!e!!io caot )e
re!olved 0it+out decidi, t+e i!!ue of o0er!+ip1 t+e
i!!ue of o0er!+ip !+all )e re!olved ol/ to deter-ie
t+e i!!ue of po!!e!!io. "5a(
3he #35 can determine ownership only provisionally.
Sec. '&. -udgment. * If after trial t+e court fid!
t+at t+e alle,atio! of t+e co-plait are true1 it !+all
reder .ud,-et i favor of t+e plaitiff for t+e
re!titutio of t+e pre-i!e!1 t+e !u- .u!tl/ due a!
arrear! of ret or a! rea!oa)le co-pe!atio for t+e
u!e ad occupatio of t+e pre-i!e!1 attore/E! fee! ad
co!t!. If it fid! t+at !aid alle,atio! are ot true1 it
!+all reder .ud,-et for t+e defedat to recover +i!
co!t!. If a couterclai- i! e!ta)li!+ed1 t+e court !+all
reder .ud,-et for t+e !u- foud i arrear! fro-
eit+er part/ ad a0ard co!t! a! .u!tice re4uire!. "#a(
If after trial the court finds that the allegations of the
complaint are true, it shall render /udgment in favor of the
plaintiff for
.1 the restitution of the premises
. the sum /ustly due as
.a arrears of rent or
.b reasonable compensation for the use and
occupation of the premises
.! attorney9s fees and costs
If it finds that said allegations are not true, it shall render
/udgment for the defendant to recover his costs.
If a counterclaim is established, the court shall render
/udgment for the sum found in arrears from either party
and award costs as /ustice requires.
Sec. '>. -udgment conclusi#e only on possession*
not conclusi#e in actions in#ol#ing title or ownership. *
T+e .ud,-et redered i a actio for forci)le etr/
or detaier !+all )e coclu!ive 0it+ re!pect to t+e
po!!e!!io ol/ ad !+all i o 0i!e )id t+e title or
affect t+e o0er!+ip of t+e lad or )uildi,. Suc+
.ud,-et !+all ot )ar a actio )et0ee t+e !a-e
partie! re!pecti, title to t+e lad or )uildi,.
T+e .ud,-et or fial order !+all )e appeala)le to
t+e appropriate Re,ioal Trial Court 0+ic+ !+all
decide t+e !a-e o t+e )a!i! of t+e etire record of t+e
proceedi,! +ad i t+e court of ori,i ad !uc+
-e-orada adFor )rief! a! -a/ )e !u)-itted )/ t+e
partie! or re4uired )/ t+e Re,ioal Trial Court. "&a(
Sec. '?. 2mmediate execution of +udgment* how to
stay same. * If .ud,-et i! redered a,ai!t t+e
defedat1 e8ecutio !+all i!!ue i--ediatel/ upo
-otio1 ule!! a appeal +a! )ee perfected ad t+e
defedat to !ta/ e8ecutio file! a !ufficiet
!uper!edea! )od1 approved )/ t+e Muicipal Trial
Court ad e8ecuted i favor of t+e plaitiff to pa/ t+e
ret!1 da-a,e!1 ad co!t! accrui, do0 to t+e ti-e of
t+e .ud,-et appealed fro-1 ad ule!!1 duri, t+e
pedec/ of t+e appeal1 +e depo!it! 0it+ t+e appellate
court t+e a-out of ret due fro- ti-e to ti-e uder
t+e cotract1 if a/1 a! deter-ied )/ t+e .ud,-et of
t+e Muicipal Trial Court. I t+e a)!ece of a cotract1
+e !+all depo!it 0it+ t+e Re,ioal Trial Court t+e
rea!oa)le value of t+e u!e ad occupatio of t+e
pre-i!e! for t+e precedi, -ot+ or period at t+e rate
deter-ied )/ t+e .ud,-et of t+e lo0er court o or
)efore t+e tet+ da/ of eac+ !ucceedi, -ot+ or
period. T+e !uper!edea! )od !+all )e tra!-itted )/
t+e Muicipal Trial Court1 0it+ t+e ot+er paper!1 to t+e
cler7 of t+e Re,ioal Trial Court to 0+ic+ t+e actio i!
appealed.
All a-out! !o paid to t+e appellate court !+all )e
depo!ited 0it+ !aid court or aut+ori@ed ,over-et
depo!itar/ )a71 ad !+all )e +eld t+ere util t+e fial
di!po!itio of t+e appeal1 ule!! t+e court1 )/
a,ree-et of t+e itere!ted partie!1 or i t+e a)!ece of
rea!oa)le ,roud! of oppo!itio to a -otio to
0it+dra01 or for .u!tifia)le rea!o!1 !+all decree
ot+er0i!e. S+ould t+e defedat fail to -a7e t+e
pa/-et! a)ove pre!cri)ed fro- ti-e to ti-e duri,
t+e pedec/ of t+e appeal1 t+e appellate court1 upo
-otio of t+e plaitiff1 ad upo proof of !uc+ failure1
!+all order t+e e8ecutio of t+e .ud,-et appealed
fro- 0it+ re!pect to t+e re!toratio of po!!e!!io1 )ut
!uc+ e8ecutio !+all ot )e a )ar to t+e appeal ta7i,
it! cour!e util t+e fial di!po!itio t+ereof o t+e
-erit!.
After t+e ca!e i! decided )/ t+e Re,ioal Trial
Court1 a/ -oe/ paid to t+e court )/ t+e defedat
for purpo!e! of t+e !ta/ of e8ecutio !+all )e di!po!ed
of i accordace 0it+ t+e provi!io! of t+e .ud,-et of
t+e Re,ioal Trial Court. I a/ ca!e 0+erei it
appear! t+at t+e defedat +a! )ee deprived of t+e
la0ful po!!e!!io of lad or )uildi, pedi, t+e
appeal )/ virtue of t+e e8ecutio of t+e .ud,-et of t+e
Muicipal Trial Court1 da-a,e! for !uc+ deprivatio of
po!!e!!io ad re!toratio of po!!e!!io -a/ )e
allo0ed t+e defedat i t+e .ud,-et of t+e Re,ioal
Trial Court di!po!i, of t+e appeal. ">a(
6equisites for stay e;ecution -against defendant. pending
appeal
.1 perfection of appeal
. filing a supersedeas bond for payments of accrued
rents, damages and costs
.! deposit of accruing rent from time to time
Petition for review to the 5A does not stay e;ecution, even
if the petitioner files a supersedeas bond.
If /udgment is rendered granting e/ectment, e;ecution shall
issue immediately upon motion, unless
.1 an appeal has been perfected and
. the defendant to stay e;ecution files a sufficient
supersedeas bond
.a approved by the #unicipal 3rial 5ourt and
.b e;ecuted in favor of the plaintiff to pay the rents,
damages, and costs accruing down to the time of
the /udgment appealed from
.c 3he supersedeas bond shall be transmitted by the
#35, with the other papers, to the clerk of the
635 to which the action is appealed.
.! and, during the pendency of the appeal, he deposits
with the appellate court the amount of rent due from
time to time
.a under the contract, if any, as determined by the
/udgment of the #35
.b In the absence of a contract, he shall deposit with
the 635 the reasonable value of the use and
occupation of the premises for the preceding
month or period at the rate determined by the
/udgment of the lower court on or before the 1<
th
day of each succeeding month or period.
.c All amounts so paid to the appellate court shall be
deposited with said court or authoriFed
government depositary bank, and shall be held
there until the final disposition of the appeal,
unless the court shall decree otherwise
.1 by agreement of the interested parties, or
. in the absence of reasonable grounds of
opposition to a motion to withdraw, or
.! for /ustifiable reasons
.d 4hould the defendant fail to make the payments
above prescribed from time to time during the
pendency of the appeal, the appellate court shall
order the e;ecution of the /udgment appealed
from with respect to the restoration of possession
-but such e;ecution shall not be a bar to the
appeal taking its course until the final disposition
thereof on the merits.
.1 upon motion of the plaintiff, and
. upon proof of such failure
.e After the case is decided by the 635, any money
paid to the court by the defendant for purposes of
the stay of e;ecution shall be disposed of in
accordance with the provisions of the /udgment of
the 635.
.f In any case wherein it appears that the defendant
has been deprived of the lawful possession of
land or building pending the appeal by virtue of
the e;ecution of the /udgment of the #35,
damages for such deprivation of possession and
restoration of possession may be allowed the
defendant in the /udgment of the 635 disposing
of the appeal.
Sec. $9. Preliminary mandatory in+unction in case of
appeal. * 3po -otio of t+e plaitiff1 0it+i te "'9(
da/! fro- t+e perfectio of t+e appeal to t+e Re,ioal
Trial Court1 t+e latter -a/ i!!ue a 0rit of preli-iar/
-adator/ i.uctio to re!tore t+e plaitiff i
po!!e!!io if t+e court i! !ati!fied t+at t+e defedatE!
appeal i! frivolou! or dilator/1 or t+at t+e appeal of t+e
plaitiff i! pri-a facie -eritoriou!. "?a(
Grounds for restoration by the 635 of possession to the
plaintiff pending appeal before the 635
.1 defendant9s appeal is frivolous or dilatory, or
. appeal of the plaintiff is prima facie meritorious.
Sec. $'. 2mmediate execution on appeal to $ourt of
Appeals or Supreme $ourt. * T+e .ud,-et of t+e
Re,ioal Trial Court a,ai!t t+e defedat !+all )e
i--ediatel/ e8ecutor/1 0it+out pre.udice to a furt+er
appeal t+at -a/ )e ta7e t+erefro-. "'9a(
3he /udgment of the 635 against the defendant shall be
immediately e;ecutory even pending appeal.
de ?eon8 I think this is still sub/ect to the power of the
appellate court to order stay of e;ecution.
c. Ca!e!
rancel #ealty v. CA, % 456A 1( -1++'. If resolution
of an unlawful detainer case requires determination of
rights and obligations under of parties in a sale of real
estate under P$ +%(, the case is e;clusively cogniFable by
the 2?D6:, not the #35.
2avier v. %eridiano II, !( 456A %'% -1++". B/ectment
has a different cause of action from accion reivindicatoria
-recovery of land., or even quieting of title. Iudgment in an
e/ectment case does into bar a subsequent action for
recovery of land, or an action for quieting of title.
$aens v. CA, 1% 456A '!" -1+)!. $amages that may be
awarded in e/ectment cases are for rents and reasonable
compensation for the use and occupation of the property. It
does not include unrealiFed or foregone profits, moral or
e;emplary damages.
de ?eon8 4o how does the plaintiff recover foregone
profits, moral and e;emplary damagesA
Azcuna 2r. v. CA, %% 456A 1% -1++'.
7acts8 AFcuna leased from :arcelona ! units in a building.
3he lease contract provided for liquidated damages of
P1,<<< for every day that AFcuna fails to turn over the
property upon e;piration of the lease. AFcuna refuses to
vacate upon termination of the lease. :arcelona wins in an
e/ectment case, but AFcuna ob/ects to the award of
damages outside rentals.
2eld8 A provision for liquidated damages, outside
compensation for use of the property, in the lease contract
is valid and may be enforced in an e/ectment proceedings.
de ?eon8 1ote that the court did not discuss the issue of
whether the amount of liquidated damages should be
within the /urisdiction of the #35. I think the amount is
irrelevant, because the liquidated damages are in the nature
of a pre*arranged value of reasonable compensation for use
of the leased property beyond the authoriFed period. It can
therefore be awarded by the #35, regardless of amount.
Bscolin8 3he doctrine in Progressive "evelopment
Corporation v. CA, !<1 456A '!( -1+++. is wrong. 3here
is no splitting the cause of action if the claim for damages
is beyond the /urisdiction of the #35 in the e/ectment
case.
de ?eon8 3herefore, if damages other than reasonable
compensation for use of property is claimed, it must be in
an amount within the /urisdiction of the #35. =therwise,
the claimant must must file a separate action, or he must .
2e can not waive the e;cess because this principle applies
only to compulsory counterclaims, not to original claims.
Penas( 2r. v. CA, !! 456A ("" -1++".
7acts8 ?essors sent letter on Ianuary 1++< asking lessee to
agree to increased rentals or to vacate upon e;piration of
the original lease. ?essee refused, but continued occupying
the property beyond the lease period. ?essor sends letter
on August 1++ demanding that lessee vacate. ?essee
refused, so lessor filed unlawful detainer case months
later. ?essee asserts lessor9s action was filed beyond the 1
year period prescribed by law.
2eld8 1 year period to file complaint for unlawful detainer
should be counted from the last demand letter to vacate.
7urthermore, an alternative in the letter to pay the
increased rental is not the demand contemplated by the
rules. B/ectment action has not yet prescribed.
)im 0ie! /ong v. CA, 1+% 456A !+) -1++1.
7acts8 :uilding owner changes locks of the main door, but
refusing to give new keys to the lessees. ?essee files an
e/ectment case with the #35. ?essor claims the action
should be for specific performance and hence should be
filed with the 635.
2eld8 3he #35 has /urisdiction. 3he building owner
deprived the occupant of possession through stealth. 3he
remedy is therefore forcible entry. 7orcible entry is
available to a lessee or tenant even against his landlord.
Clutario v. CA, 1' 456A !"1 -1++. Acceptance of back
rentals after written demand to vacate having been made,
and pending the e/ectment case, is not a waiver of the
ground for e/ectment for non*payment of rentals.
Cursino v. $autista, 1(' 456A '% -1+)+. Acceptance of
back rentals after written demand to vacate having been
made, but before the e/ectment case is even filed, is not a
waiver of the ground for e/ectment for non*payment of
rentals.
de ?eon8 1ote that in Clutario, acceptance of back rentals
was pending the e/ectment case. In Cursino, acceptance of
back rentals was even before the e/ectment case was filed.
In both cases, a written demand to vacate had already been
served. 3herefore, if written demand to pay and to vacate
has already been made, subsequent acceptance of back
rentals, whether before or pending e/ectment action, does
not waive the ground for e/ectment.
Acab v. CA, "1 456A %"' -1++%. ?ease agreements with
no specific period are deemed for the period in which the
rents are regularly paid. 3he lease is therefore for a definite
period. 3he lease e;pired at the end of the month and
therefore there was a ground to demand that the lessee
vacate at the end of the month. In case of refusal, there is
ground for an e/ectment action.
German Management v. CA, 1(( 456A "+% -1+)+. A mere
prior possessor, regardless of the nature of his possession
-de ?eon8 even squattersAG., can maintain a forcible entry
action even against the owner if his peaceful possession is
disturbed. A prior possessor may be e/ected only by an
e/ection action. 3he owner can not resort to the doctrine of
self*help if he is not in possession and in danger of losing
it.
de ?eon8 3he remedy of the owner is to file a separate
action for recovery of land in which he can invoke his
ownership.
$andoy v. CA, 1(% 456A "%+ -1+)+. @here the e/ectment
complaint does not allege that prior demand to vacate was
made, the courts never acquired /urisdiction. 5ertification
by the barangay captain is not conclusive as to such prior
demand, only that there was no settlement reached.
Bscolin8 If the demand is to pay back rentals only, there is
no cause of action for e/ectment, only a cause of action for
collection of back rentals. In such a case, the amount of
back rentals demanded is relevant in determining
/urisdiction because the action is now a simple collection
case. 6ule (< 4ec. requires demand to both pay back
rentals and to vacate for a cause of action in an e/ectment
case to arise.
4ec. . )essor to proceed against lessee
only after demand. N Dnless otherwise
stipulated, such action by the lessor shall
be commenced only after demand to pay
or comply with the conditions of the
lease and to vacate is made upon the
lessee, ;;;. -a.
2ence, if there was prior demand to vacate and pay back
rentals, the #35 has e;clusive /urisdiction over the
e/ectment case regardless of the amount of incidental back
rentals.
Peran v. Presiding 2udge, 1% 456A () -1+)!. Possession
by tolerance becomes illegal when the possessor refuses to
comply with demand to vacate. Prior physical possession
by the e/ectment plaintiff is not necessary.
3nce v. Gonzales, (' 456A %) -1+((. 4upersedeas bond
by the e/ectment defendant is not required where no back
rentals were ad/udged. In such a case, timely deposit of
accruing rentals is enough to stay the e;ecution pending
appeal.
P!arma Industries( Inc.( v. Pa.arillaga, 1<< 456A !!+
-1+)<. In unlawful detainer, prior possession of the
plaintiff is not a requisite.
#acaza v. Susana #ealty, 1) 456A 11( -1+''. @hen the
action is to terminate the lease because of e;piration of the
term, prior demand to vacate is not necessary. $emand is
only indicative of intention not to e;tend the lease. It is
required only if there was failure to pay rent, or to comply
with the conditions of the lease. After e;piration of the
lease, the lessor may regain possession of the property.
6efusal of the lessee to vacate allows the lessor to file for
unlawful detainer even before e;piration of the 1% or % day
period.
San Manuel v. /upas, "+ 456A "'' -1++%. ,A good
reason0 -as required in e;ecution pending appeal in
ordinary cases. is not necessary for e;ecution pending
appeal in e/ectment cases because it is e;pressly made
immediately e;ecutory by the 6ules. 7ailure of an
appealing e/ectment defendant to make a periodic deposit
of rentals pending appeal results in e;ecution pending
appeal.
%da. de Ampil v. Alvendia, 1< 456A )) -1+'".
7acts8 #35 grants e/ectment and orders defendant to pay
accruing rents within the first % days of each month if he
wants to stay e;ecution pending appeal. $efendant appeals
and pays accruing rents within the first 1< days of each
month, but outside the first % days. Plaintiff moves for
e;ecution pending appeal.
2eld8 $ecision calling for payment of rentals until
defedant vacates is not controlling because there is no
pronouncement that the contract calls for such payment.
=nly payment within the first 1< days of the month is
sanctioned by the rules.
de ?eon8 1ote that if the #35 orders monthly payment
less than the first 1< days of the month, the appellant need
not comply with such period, but he still must pay within
the first 1< days of the month.
City of Manila v. CA, 1"+ 456A 1)! -1+)(. Bven if the
plaintiff appeals a /udgment ordering e/ectment on the
ground that rentals awarded were not enough, the
/udgment is still e;ecutory pending appeal. If the lessee
desires to prevent e;ecution pending appeal, he must file a
supersedeas bond and deposit in court the accruing rentals.
$uenaventura v. 4alili&5y, 1"+ 456A -1+)(.
7acts8 ?essor allows lessee to occupy area in e;cess of the
lease until lessor needs it. ?essee refused to vacate on
demand. ?essor files case for unlawful detainer and
forcible entry.
2eld8 3he suit should be for unlawful detainer. 3he
lessee9s possession of the e;cess area was lawful until
demand to vacate was ignored.
$istinction between forcible entry and unlawful detainer
-1. As to possession8 the possession of the intruder or
person who deprives another of the possession of a land or
building in forcible entry is illegal from the beginning
because his entry into or taking possession thereof is made
against the will or without the consent of the former
possessor& while in unlawful detainer, the possession of the
detainer is originally legal or lawful, but it becomes illegal
after the e;piration or termination of his right to hold
possession of the land or building by virtue of a contract&
-. As to demand to vacate8 in forcible entry, no previous
demand to vacate is required by law before the filing of the
action& while in an action for unlawful detainer by a
landlord against his tenant, such demand is required.
Allegation of prior possession is not required in unlawful
detainer, while such allegation is required in forcible entry.
San Pedro v. CA, !% 456A 1"% -1++". 7ailure of the
defendant to make periodic deposits pending appeal results
in e;ecution pending appeal. B;ecution of an e/ectment
case pending appeal is not stayed by a pending separate
action for annulment of title of the prevailing e/ectment
plaintiff.
'9. Cote-pt
$I6B53 5=13B#P3 I1$I6B53 5=13B#P3
1ot need to have written
charge
#ust have formal written
charge or verified complaint
4ummary /udgment 2earing is mandatory
1ot appealable& only
remedy is special civil
action for certiorari or
prohibition
Appealable by notice of
appeal
Punished up to P,<<< fine
andMor 1< day imprisonment
if committed against
superior courts& P<<
andMor 1 day if committed
against lower courts
Punished up to P!<,<<< fine
andMor ' months
imprisonment if committed
against superior courts&
P%,<<< andMor 1 month if
committed against lower
courts
a. Rule &'
General Procedure in 5ontempt
Sectio '. Direct contempt punished summarily. *
A per!o ,uilt/ of -i!)e+avior i t+e pre!ece of or !o
ear a court a! to o)!truct or iterrupt t+e proceedi,!
)efore t+e !a-e1 icludi, di!re!pect to0ard t+e court1
offe!ive per!oalitie! to0ard ot+er!1 or refu!al to )e
!0or or to a!0er a! a 0ite!!1 or to !u)!cri)e a
affidavit or depo!itio 0+e la0full/ re4uired to do !o1
-a/ )e !u--aril/ ad.ud,ed i cote-pt )/ !uc+ court
ad pui!+ed )/ a fie ot e8ceedi, t0o t+ou!ad
pe!o! or i-pri!o-et ot e8ceedi, te "'9( da/!1 or
)ot+1 if it )e a Re,ioal Trial Court or a court of
e4uivalet or +i,+er ra71 or )/ a fie ot e8ceedi,
t0o +udred pe!o! or i-pri!o-et ot e8ceedi, oe
"'( da/1 or )ot+1 if it )e a lo0er court. "'a(
$irect 5ontempt > misbehavior in the presence of or so
near a court as to obstruct or interrupt the proceedings
before the same including
.1 disrespect toward the court
. offensive personalities toward others, or
.! refusal to be sworn or to answer as a witness
." refusal to subscribe an affidavit or deposition when
lawfully required to do so
$irect contemt may be summarily ad/udged and punished
by
.1 a fine not e;ceeding P,<<< or imprisonment not
e;ceeding 1< days, or both > if it be a 635 or a court
of equivalent or higher rank
. a fine not e;ceeding P<< or imprisonment not
e;ceeding 1 day, or both * if it be a lower court. -1a.
Sec. $. )emedy therefrom. * T+e per!o ad.ud,ed
i direct cote-pt )/ a/ court -a/ ot appeal
t+erefro-1 )ut -a/ avail +i-!elf of t+e re-edie! of
certiorari or pro+i)itio. T+e e8ecutio of t+e
.ud,-et !+all )e !u!peded pedi, re!olutio of
!uc+ petitio1 provided !uc+ per!o file! a )od fi8ed
)/ t+e court 0+ic+ redered t+e .ud,-et ad
coditioed t+at +e 0ill a)ide )/ ad perfor- t+e
.ud,-et !+ould t+e petitio )e decided a,ai!t +i-.
"$a(
3he person ad/udged in direct contempt by any court
.1 may not appeal therefrom
. may avail himself of the remedies of certiorari or
prohibition -observe rule on hierarchy of courts.
.! 3he e;ecution of the /udgment shall be suspended
pending petition for certiorari or prohibition, provided
such person files a bond
.a fi;ed by the court which rendered the /udgment
and
.b conditioned that he will abide by and perform the
/udgment should the petition be decided against
him
de ?eon8 1ote that a conviction for direct contempt is an
e;ception to the general rule that special civil action for
certiorari does not stay e;ecution.
Sec. 2. 2ndirect contempt to (e punished after charge
and hearing. * After a c+ar,e i 0riti, +a! )ee filed1
ad a opportuit/ ,ive to t+e re!podet to co--et
t+ereo 0it+i !uc+ period a! -a/ )e fi8ed )/ t+e court
ad to )e +eard )/ +i-!elf or cou!el1 a per!o ,uilt/
of a/ of t+e follo0i, act! -a/ )e pui!+ed for
idirect cote-ptD
"a( Mi!)e+avior of a officer of a court i t+e
perfor-ace of +i! official dutie! or i +i! official
tra!actio!:
")( Di!o)ediece of or re!i!tace to a la0ful 0rit1
proce!!1 order1 or .ud,-et of a court1 icludi, t+e act
of a per!o 0+o1 after )ei, di!po!!e!!ed or e.ected
fro- a/ real propert/ )/ t+e .ud,-et or proce!! of
a/ court of co-petet .uri!dictio1 eter! or atte-pt!
or iduce! aot+er to eter ito or upo !uc+ real
propert/1 for t+e purpo!e of e8ecuti, act! of
o0er!+ip or po!!e!!io1 or i a/ -aer di!tur)! t+e
po!!e!!io ,ive to t+e per!o ad.ud,ed to )e etitled
t+ereto:
"c( A/ a)u!e of or a/ ula0ful iterferece 0it+
t+e proce!!e! or proceedi,! of a court ot co!tituti,
direct cote-pt uder !ectio ' of t+i! Rule:
"d( A/ i-proper coduct tedi,1 directl/ or
idirectl/1 to i-pede1 o)!truct1 or de,rade t+e
ad-ii!tratio of .u!tice:
"e( A!!u-i, to )e a attore/ or a officer of a
court1 ad acti, a! !uc+ 0it+out aut+orit/:
"f( =ailure to o)e/ a !u)poea dul/ !erved:
",( T+e re!cue1 or atte-pted re!cue1 of a per!o or
propert/ i t+e cu!tod/ of a officer )/ virtue of a
order or proce!! of a court +eld )/ +i-.
But ot+i, i t+i! !ectio !+all )e !o co!trued a!
to prevet t+e court fro- i!!ui, proce!! to )ri, t+e
re!podet ito court1 or fro- +oldi, +i- i cu!tod/
pedi, !uc+ proceedi,!. "2a(
1ote that in indirect contempt, a written charge must be
filed, and a hearing conducted. :ut the court may order the
arrest of the respondent and to detain him pending the
contempt proceedings.
Instances of Indirect contempt
.1 #isbehavior of an officer of a court in the
performance of his official duties or in his official
transactions&
. $isobedience of or resistance to a lawful writ, process,
order, or /udgment of a court
.! abuse of or any unlawful interference with the
processes or proceedings of a court not constituting
direct contempt
." improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of
/ustice
.% assuming to be an attorney or an officer of a court, and
acting as such without authority&
.' failure to obey a subpoena duly served&
.( the rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue of an
order or process of a court held by him.
1ote that a losing party in an e/ectment case does not
commit contempt by mere refusal to leave the premises.
:ut if such party had been dispossessed pursuant to a court
order, but subsequently disturbs the possession of the
prevailing party, he now commits contempt.
cf 6ule !+, 4ec. 1< -c.
4ec. 1<. E1ecution of .udgments for
specific act. N
-c. "elivery or restitution of real
property. N 3he officer shall demand of
the person against whom the /udgment
for the delivery or restitution of real
property is rendered and all person
claiming rights under him to peaceably
vacate the property within three -!.
working days, and restore possession
thereof to the /udgment obligee&
otherwise, the officer shall oust and such
persons therefrom with the assistance, if
necessary of appropriate peace officers,
and employing such means as may be
reasonably necessary to retake
possession, and place the /udgment
obligee in possession of such property.
Any costs, damages, rents or profits
awarded by the /udgment shall be
satisfied in the same manner as a
/udgment for money. -1!a.
Sec. 5. 1ow proceedings commenced. *
Proceedi,! for idirect cote-pt -a/ )e iitiated
-otu proprio )/ t+e court a,ai!t 0+ic+ t+e cote-pt
0a! co--itted )/ a order or a/ ot+er for-al c+ar,e
re4uiri, t+e re!podet to !+o0 cau!e 0+/ +e !+ould
ot )e pui!+ed for cote-pt.
I all ot+er ca!e!1 c+ar,e! for idirect cote-pt
!+all )e co--eced )/ a verified petitio 0it+
!upporti, particular! ad certified true copie! of
docu-et! or paper! ivolved t+erei1 ad upo full
co-pliace 0it+ t+e re4uire-et! for fili, iitiator/
pleadi,! for civil actio! i t+e court cocered. If t+e
cote-pt c+ar,e! aro!e out of or are related to a
pricipal actio pedi, i t+e court1 t+e petitio for
cote-pt !+all alle,e t+at fact )ut !aid petitio !+all )e
doc7eted1 +eard ad decided !eparatel/1 ule!! t+e
court i it! di!cretio order! t+e co!olidatio of t+e
cote-pt c+ar,e ad t+e pricipal actio for .oit
+eari, ad deci!io. "(
Proceedings for indirect contempt
.1 initiated by
.a the court against which the contempt was
committed motu proprio > by an order or any
other formal charge requiring the respondent to
show cause why he should not be punished for
contempt.
.b verified petition
.1 with supporting particulars and certified
true copies of documents or papers involved
therein, and
. upon full compliance with the
requirements for filing initiatory pleadings
for civil actions in the court concerned.
.! Allegation that the contempt charges
arose out of or are related to a principal
action pending in the court
. an opportunity given to the respondent to
.a comment thereon within such period as may be
fi;ed by the court and
.b be heard by himself or counsel
.! petition shall be docketed, heard and decided
separately, unless the court in its discretion orders the
consolidation of the contempt charge and the principal
action for /oint hearing and decision.
." the court can issue process to bring the respondent
into court, or hold him in custody pending the indirect
contempt proceedings
SEC. 6. Where charge to (e filed. % W+ere t+e
c+ar,e for idirect cote-pt +a! )ee co--itted
a,ai!t a Re,ioal Trial Court or a court of e4uivalet
or +i,+er ra71 or a,ai!t a officer appoited )/ it1
t+e c+ar,e -a/ )e filed 0it+ !uc+ court. W+ere !uc+
cote-pt +a! )ee co--itted a,ai!t a lo0er court1
t+e c+ar,e -a/ )e filed 0it+ t+e Re,ioal Trial Court
of t+e place i 0+ic+ t+e lo0er court i! !itti,: )ut t+e
proceedi,! -a/ al!o )e i!tituted i !uc+ lo0er court
!u).ect to appeal to t+e Re,ioal Trial Court of !uc+
place i t+e !a-e -aer a! provided i !ectio '' of
t+i! Rule. "5a(
@here charge to be filed > if committed against
.1 a 635 or a higher court, or against an officer
appointed by it > the charge may be filed with such
court.
. a lower court > the charge may be filed with
.a such lower court sub/ect to appeal to the 635
.b the 635 of the place in which the lower court is
sitting
Sec. #. 1earing* release on (ail. * If t+e +eari, i!
ot ordered to )e +ad fort+0it+1 t+e re!podet -a/ )e
relea!ed fro- cu!tod/ upo fili, a )od1 i a a-out
fi8ed )/ t+e court1 for +i! appearace at t+e +eari, of
t+e c+ar,e. O t+e da/ !et t+erefor1 t+e court !+all
proceed to ive!ti,ate t+e c+ar,e ad co!ider !uc+
co--et1 te!ti-o/ or defe!e a! t+e re!podet -a/
-a7e or offer. "6a(
If the hearing is not ordered to be had forthwith, the
respondent may be released from custody upon filing a
bond
.1 in an amount fi;ed by the court
. for his appearance at the hearing of the charge
3he court shall proceed to investigate the charge and
consider such comment, testimony or defense as the
respondent may make or offer.
Sec. &. Punishment for indirect contempt. * If t+e
re!podet i! ad.ud,ed ,uilt/ of idirect cote-pt
co--itted a,ai!t a Re,ioal Trial Court or a court of
e4uivalet or +i,+er ra71 +e -a/ )e pui!+ed )/ a
fie ot e8ceedi, t+irt/ t+ou!ad pe!o! or
i-pri!o-et ot e8ceedi, !i8 "#( -ot+!1 or )ot+. If
+e i! ad.ud,ed ,uilt/ of cote-pt co--itted a,ai!t a
lo0er court1 +e -a/ )e pui!+ed )/ a fie ot
e8ceedi, five t+ou!ad pe!o! or i-pri!o-et ot
e8ceedi, oe "'( -ot+1 or )ot+. If t+e cote-pt
co!i!t! i t+e violatio of a 0rit of i.uctio1
te-porar/ re!traii, order or !tatu! 4uo order1 +e
-a/ al!o )e ordered to -a7e co-plete re!titutio to t+e
part/ i.ured )/ !uc+ violatio of t+e propert/ ivolved
or !uc+ a-out a! -a/ )e alle,ed ad proved.
T+e 0rit of e8ecutio1 a! i ordiar/ civil actio!1
!+all i!!ue for t+e eforce-et of a .ud,-et i-po!i,
a fie ule!! t+e court ot+er0i!e provide!. "#a(
Sec. >. 2mprisonment until order o(eyed. * W+e
t+e cote-pt co!i!t! i t+e refu!al or o-i!!io to do
a act 0+ic+ i! /et i t+e po0er of t+e re!podet to
perfor-1 +e -a/ )e i-pri!oed )/ order of t+e court
cocered util +e perfor-! it. "&a(
Punishment for indirect contempt
.1 committed against a 635 or a court of equivalent or
higher rank > a fine not e;ceeding P!<,<<< or
imprisonment not e;ceeding ' months, or both
. committed against a lower court > a fine not
e;ceeding P%,<<< or imprisonment not e;ceeding 1
month, or both.
.! consisting of violation of a writ of in/unction, 36= or
status quo order > complete restitution to the party
in/ured
." refusal or omission to do an act which is yet in the
power of the respondent to perform > imprisonment
until he performs it
3he writ of e;ecution, as in ordinary civil actions, shall
issue for the enforcement of a /udgment imposing a fine
unless the court otherwise provides.
Sec. ?. Proceeding when party released on (ail fails
to answer. * W+e a re!podet relea!ed o )ail fail!
to appear o t+e da/ fi8ed for t+e +eari,1 t+e court
-a/ i!!ue aot+er order of arre!t or -a/ order t+e
)od for +i! appearace to )e forfeited ad cofi!cated1
or )ot+: ad1 if t+e )od )e proceeded a,ai!t1 t+e
-ea!ure of da-a,e! !+all )e t+e e8tet of t+e lo!! or
i.ur/ !u!taied )/ t+e a,,rieved part/ )/ rea!o of
t+e -i!coduct for 0+ic+ t+e cote-pt c+ar,e 0a!
pro!ecuted1 0it+ t+e co!t! of t+e proceedi,!1 ad !uc+
recover/ !+all )e for t+e )eefit of t+e part/ i.ured. If
t+ere i! o a,,rieved part/1 t+e )od !+all )e lia)le ad
di!po!ed of a! i cri-ial ca!e!. ">a(
@hen a respondent released on bail fails to appear on the
day fi;ed for the hearing, the court may
.1 issue another order of arrest andMor
. may order the bond for his appearance to be forfeited
and confiscated
.a the measure of damages shall be the e;tent of the
loss or in/ury sustained by the aggrieved party by
reason of the misconduct for which the contempt
charge was prosecuted, with the costs of the
proceedings, and such recovery shall be for the
benefit of the party in/ured.
.b If there is no aggrieved party, the bond shall be
liable and disposed of as in criminal cases.
Sec. '9. $ourt may release respondent. * T+e court
0+ic+ i!!ued t+e order i-pri!oi, a per!o for
cote-pt -a/ di!c+ar,e +i- fro- i-pri!o-et 0+e
it appear! t+at pu)lic itere!t 0ill ot )e pre.udiced )/
+i! relea!e. "?a(
3he court which issued the order imprisoning a person for
contempt may discharge him from imprisonment when it
appears that public interest will not be pre/udiced by his
release.
Sec. ''. )e#iew of +udgment or final order* (ond for
stay. * T+e .ud,-et or fial order of a court i a ca!e
of idirect cote-pt -a/ )e appealed to t+e proper
court a! i cri-ial ca!e!. But e8ecutio of t+e
.ud,-et or fial order !+all ot )e !u!peded util a
)od i! filed )/ t+e per!o ad.ud,ed i cote-pt1 i a
a-out fi8ed )/ t+e court fro- 0+ic+ t+e appeal i!
ta7e1 coditioed t+at if t+e appeal )e decided a,ai!t
+i- +e 0ill a)ide )/ ad perfor- t+e .ud,-et or fial
order. "'9a(
3he /udgment or final order of a court in a case of indirect
contempt
.1 may be appealed to the proper court as in criminal
cases.
. e;ecution pending appeal shall not be suspended until
a bond is filed by the person ad/udged in contempt
.a in an amount fi;ed by the court from which the
appeal is taken
.b conditioned that if the appeal be decided against
him he will abide by and perform the /udgment or
final order
1ote that in both direct and indirect contempts, e;ecution
pending appeal is stayed only by posting a bond even if the
modes of appeal are different.
Sec.'$. $ontempt against 3uasi4+udicial entities. *
3le!! ot+er0i!e provided )/ la01 t+i! Rule !+all appl/
to cote-pt co--itted a,ai!t per!o!1 etitie!1 )odie!
or a,ecie! e8erci!i, 4ua!i%.udicial fuctio!1 or !+all
+ave !uppletor/ effect to !uc+ rule! a! t+e/ -a/ +ave
adopted pur!uat to aut+orit/ ,rated to t+e- )/ la0
to pui!+ for cote-pt. T+e Re,ioal Trial Court of t+e
place 0+erei t+e cote-pt +a! )ee co--itted !+all
+ave .uri!dictio over !uc+ c+ar,e! a! -a/ )e filed
t+erefor. "(
635 has /urisdiction over contempt committed against
quasi*/udicial entities.
). Ca!e!
Ang v. Castro, 1!' 456A "%! -1+)%. 3he use of
disrespectful of contemptuous language against a
particular /udge in pleadings presented in another court or
proceeding is indirect, not direct, contempt as it is not
tantamount to a misbehavior in the presence of or so near a
court or /udge as to interrupt the administration of /ustice.
4tated differently, if the pleading containing derogatory,
offensive or malicious statements is submitted in the same
court or /udge in which the proceedings are pending, it is
direct contempt.
People v. /orio, 11) 456A 1( -1+). 7ailure to appear in
court is not direct contempt. It may however constitute
indirect contempt.
Cabilan v. #amolete, 1+ 456A '(" -1++<. Bven a
pleading submitted to the court may contain derogatory or
malicious statements which constitute direct contempt
against such court. It amounts to misbehaviour committed
in the presence of or so near a court or /udge as to interrupt
the administration of /ustice. $irect contempt may be
punished summarily, without hearing.
Pascua v. 4eirs of Simeon, 1'1 456A 1 -1+)). #ere
refusal of a litigant to vacate the property sub/ect of a writ
of possession does not constitute constitute contempt. 3he
writ is directed to the sheriff, not the parties. 3he remedy is
for the sheriff to dispossess them of the premises and
deliver possession to the winning party. 2owever, if after
being dispossessed, the party re*enters the property for the
purpose of e;ecuting acts of ownership or possession, he
may then be charged for contempt.
Santiago v. Anunciacion( 2r., 1)" 456A 11) -1++<.
7acts8 4antiago was the counsel for the accused in a
kidnapping case. 3he alleged kidnapping victim, Amylie,
subsequently claimed that she was not kidnapped but was
in fact the lover of the accused. =n the day Amylie was
supposed to testify that she was not kidnapped, a warrant
of arrest was served on her in connection for a case of
disobedience filed by her own mother. Dpon 4antiago9s
request, Amylie was arrested only after she had testified. A
case for indirect contempt was filed against 4antiago in the
court hearing the disobedience case. =n the date of
hearing, a private prosecutor entered his appearance.
4antiago ob/ects.
2eld8 A contempt charge partakes the nature of a penal
proceeding. :eing so, it is sub/ect to the rules on criminal
procedure and the rules on the intervention of the offended
party in criminal actions. 3he rule is that unless the
offended party has waived the civil action or e;pressly
reserved the right to institute it separately from the
criminal action, he may intervene by counsel in the
prosecution of the offense. 3he intervention of the
offended party is sub/ect to the direction and control of the
fiscal, and for the sole purpose of enforcing the civil
liability of the accused, and as we have held, Lnot of
demanding punishment of the accused.L
In the case at bar, there is no /ustification for the
prosecution of the case by a private prosecutor. In this
instance, the kind of contempt -indirect. for which the
petitioner is sought to be held liable provides for no
indemnity because the alleged LobstructionL committed
was an offense against the 4tate, the respondent court in
particular, which involves no private party.
de ?eon8 I think this case is illustrative of the distinction
between civil -to enforce rights of litigants. and criminal
-to vindicate court authority. contempt. 3he capacity of a
private prosecutor to intervene in contempt proceedings is
similar to that in criminal cases. If there is a private
offended party, i.e. civil contempt, a private prosecutor
may intervene. If there is no private offended party
-criminal contempt., a private prosecutor may not
intervene. 3he contempt that 4antiago was alleged to have
committed is criminal contempt because he was alleged to
have interfered with court processes.
$arrete v. Amila, !< 456A 1+ -1++". 3he mere refusal
or unwillingness on the part of the losing party in an
e/ectment case to vacate the property did not constitute
contempt. 3he writ of possession was directed not to the
losing party, but to the 4heriff, who was to deliver the
properties to the prevailing party. As the writ did not
command the losing party to do anything, the losing party
could not be held guilty of disobedience of or resistance to
a lawful writ, process, order, /udgment or command of a
court. #oreover, the losing party could not be punished
for contempt for ,disobedience of or resistance to the
/udgment of the trial court0 because said /udgment was not
a special /udgment. @hen the /udgment requires the
delivery of real property, any contempt proceeding arising
therefrom must be based on ,act of a person who, after
being dispossessed or e/ected from any real property by the
/udgment or process of any court of competent /urisdiction,
enters or attempts or induces another to enter into or upon
such real property, for the purpose of e;ecuting acts of
ownership or possession, or in any manner disturbs the
possession given to the person ad/udged to be entitled
thereto0 and not on Lthe disobedience of or resistance to a
lawful writ, process, order, /udgment, or command of a
court, or in/unction granted by a court or /udge.L

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