[HEARTBREAK NOTES] [SCAPR] [v.1.

0, 2016]
(This work is a combination of materials from the Remedial Law Review classes of Attys.
Vera Shayne Salcedo & Christian Villasis. Notes in red are opinions of the lecturers,1 of
authors2 on the subject, or of the reviewee. Cited provisions are from the Rules of Court
unless otherwise provided.)

PROVISIONAL REMEDIES
Provisional remedies are (temporary) writs & processes available during the pendency of the
action w/ may be resorted to by a litigant to preserve and protect certain rights and interests
therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the
case.
The purposes of provisional remedies are to:
Preserve or protect their rights or interests while the main action is pending;
Secure the judgment;
Preserve the status quo; or
Preserve the subject matter of the action.
1. WHAT ARE THE KINDS OF PROVISIONAL REMEDIES? BRIEFLY EXPLAIN EACH.

Preliminary attachment (Rule 57): a provisional remedy issued upon order of

the court where an action is pending to be levied upon the property or
properties of the defendant therein, the same to be held thereafter by the
sheriff as security for the satisfaction of whatever judgment that might be
secured in the said action by the attaching creditor against the defendant
(Cuartero vs. CA).
Preliminary injunction (Rule 58): an order granted at any stage of an action
prior to final judgment, requiring a person to refrain from a particular act
(Saulog vs. CA).
Receivership (Rule 59): a provisional remedy wherein the court appoints a
representative to preserve, administer, dispose of and prevent the loss or
dissipation of the real or personal property during the pendency of an action.
Replevin (Rule 60): a proceeding by which the owner or one who has a general
or special property in the thing taken or detained seeks to recover possession
in specie, the recovery of damages being only incidental (Chiao Liong Tan vs.
CA).
Support pendente lite (Rule 61): allowance made to the wife or family for
heir/their maintenance during the pendency of an action.

2. DEFINE PRELIMINARY ATTACHMENT. GIVE ITS NATURE AND PURPOSE.

Preliminary attachment is a provisional remedy issued upon order of the court where an
action is pending to be levied upon the property or properties of the defendant therein,
the same to be held thereafter by the sheriff as security for the satisfaction of whatever
1 Dean Willard Riano, Atty. Christian Villasis
2 Dean Willard Riano, Dean Ed Vincent Albano, Atty. Reynaldo Agranzamendez

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judgment that might be secured in the said action by the attaching creditor against the
defendant (Adlawan vs. Judge Tomol).
3. WHAT ARE THE KINDS OF ATTACHMENT?
The kinds of attachment are: (i) preliminary attachment; (ii) garnishment, a species of
attachment in which plaintiff seeks to subject to his claims properties of the debtor in the
hands of a stranger (RCBC vs. Castro); and (iii) levy on execution, one that is issued after
trial and final judgment to satisfy an obligation pursuant to Rule 39.
4. ENUMERATE THE GROUNDS FOR THE ISSUANCE OF A WRIT OF ATTACHMENT.
At the commencement of the action or at any time before entry of judgment, a plaintiff or
any proper party may have the property of the adverse party attached as security for the
satisfaction of any judgment that may be recovered in the following cases:
In an action for the recovery of a specified amount of money or damages, other
than moral and exemplary, on a cause of action arising from law, contract,
quasi-contract, delict or quasi-delict against a party who is about to depart
from the Philippines with intent to defraud his creditors;
In an action for money or property embezzled or fraudulently misapplied or
converted to his own use by a public officer, or an officer of a corporation, or
an attorney, factor, broker, agent, or clerk, in the course of his employment as
such, or by any other person in a fiduciary capacity, or for a willful violation of
duty;
In an action to recover the possession of property unjustly or fraudulently
taken, detained or converted, when the property, or any part thereof, has been
concealed, removed, or disposed of to prevent its being found or taken by the
applicant or an authorized person;
In an action against a party who has been guilty of a fraud in contracting the
debt or incurring the obligation upon which the action is brought, or in the
performance thereof;
In an action against a party who has removed or disposed of his property, or is
about to do so, with intent to defraud his creditors; or
In an action against a party who does not reside and is not found in the
Philippines, or on whom summons may be served by publication (Sec. 1, Rule
57).
5. WHEN CAN WE APPLY FOR A WRIT OF ATTACHMENT? WHO CAN APPLY THE
SAME? WHAT COURTS HAVE JURISDICTION TO ISSUE IT?
The plaintiff (or other proper party, such as a claimant in a counterclaim; the third-party
plaintiff in a third-party complaint) may apply for the issuance of a writ of preliminary
attachment at the commencement of the action at any time before entry of judgment.
After entry of judgment, the prevailing party should already move for the issuance of a
writ of execution (Sec. 1, Rule 57).
An order of attachment may be issued either ex parte or upon motion with notice and
hearing by the court in which the action is pending, or by the Court of Appeals or the
Supreme Court (Sec. 2, Rule 57).

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6. CAN A WRIT OF ATTACHMENT BE ISSUED EX PARTE?
Yes (Sec. 2, Rule 57). However, the ex parte issuance of the writ may be made only upon
the filing with the court of an affidavit and a bond (Solidbank vs. CA), and the same
cannot be discharged without hearing (Santos vs. Aquino, Jr.)
7. WHAT ARE THE REQUISITES FOR THE ISSUANCE OF A WRIT OF ATTACHMENT?

The case must be any of those where preliminary attachment is proper (Sec. 1,
Rule 57);
The applicant must file a motion with notice and hearing (may be issued ex
parte) (Sec. 2, Rule 57);
The applicant must show by affidavit (under oath) that there is no sufficient
security for the claim sought to be enforced and that the amount claimed in the
action is as much as the sum for which the order is granted above all
counterclaims; and
A bond is filed, executed to the adverse party (attachment bond) (Sec. 3, Rule
57).

8. EXPLAIN THE RULE ON PRIOR AND CONTEMPORANEOUS SERVICE OF

SUMMONS WITH THE WRIT OF ATTACHMENT.
The prior or contemporaneous rule provides that no levy on attachment shall be
enforced unless it is preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint, the application for attachment, the
applicants affidavit and bond, and the order and writ of attachment, on the defendant.
This rule will not apply where (i) the summons could not be served personally or by
substituted service despite diligent efforts; (ii) the defendant is a resident of the
Philippines temporarily absent therefrom; (iii) the defendant is a non-resident of the
Philippines; and (iv) the action is one in rem or quasi in rem (Sec. 5, Rule 57).
9. HOW DO YOU PREVENT THE ISSUANCE OR IMPLEMENTATION OF A WRIT OF
ATTACHMENT? HOW DO YOU DISCHARGE THE SAME?
A party may prevent the sheriff from levying attachment on the properties of the
defendant by doing either of two things:
Depositing an amount equal to the amount of the claim with the court or equal
to the value of the property being attached; or
Giving a counter-bond executed to the applicant in an amount equal to the
bond fixed by the court in the order of attachment or to the value of the
property to be attached (Sec. 5, Rule 57).
Attachment may be discharged by filing a motion to that effect on the grounds that the
same was improperly or irregularly issued or enforced or that the bond is insufficient
(Sec. 12, Rule 57).
10. WHAT ARE THE
ATTACHMENT?

REMEDIES

AGAINST

WRONGFUL

OR

IMPROPER

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One who has been injured by a wrongful attachment can recover damages for the actual
loss resulting therefrom. While as a general rule, the liability on the attachment bond is
limited to actual (or in some cases, temperate or nominal) damages, exemplary damages
may be recovered where the attachment was established to be maliciously sued out
(PCIB vs. Alejandro). The application for damages must be filed (a) before the trial, or (b)
before appeal is perfected, or (c) before the judgment becomes executory. There must be
notice to the attaching party and his surety of sureties (Sec. 20, Rule 57).
11. EXPLAIN THE PROCEEDINGS IN CASE THE PROPERTY ATTACHED IS BEING
CLAIMED BY A THIRD PERSON.
If the property attached is claimed by any person other than the party against whom
attachment had been issued or his agent, and such person makes an affidavit of his title
thereto, or right to the possession thereof, stating the grounds of such right or title, and
serves such affidavit upon the sheriff while the latter has possession of the attached
property, and a copy thereof upon the attaching party, the sheriff shall not be bound to
keep the property under attachment, unless the attaching party or his agent, on demand
of the sheriff, shall file a bond approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property levied upon. In case of
disagreement as to such value, the same shall be decided by the court issuing the writ of
attachment. No claim for damages for the taking or keeping of the property may be
enforced against the bond unless the action therefor is filed within 12) days from the date
of the filing of the bond.
The sheriff shall not be liable for damages for the taking or keeping of such property, to
any such third-party claimant, if such bond shall be filed. Nothing herein contained shall
prevent such claimant or any third person from vindicating his claim to the property, or
prevent the attaching party from claiming damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in the same or a separate action.
When the writ of attachment is issued in favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond shall not be required, and in case the
sheriff is sued for damages as a result of the attachment, he shall be represented by the
Solicitor General, and if held liable therefor, the actual damages adjudged by the court
shall be paid by the National Treasurer out of the funds to be appropriated for the
purpose (Sec. 14, Rule 57).
12. WHEN
IS
GARNISHMENT ALLOWED?
ATTACHMENT FROM FINAL ATTACHMENT.

DIFFERENTIATE

PRELIMINARY

Garnishment is proper if the property involved is money, stocks, other incorporeal

property.

Preliminary attachment (Rule 57) is an auxiliary remedy to give security for a

judgment still to be rendered. Final attachment (Rule 39) is a means for the
execution of a final judgment.
In preliminary attachment, there is no sale because the decision has not yet
been rendered. Final attachment should always be accompanied by a sale at
public auction.

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Preliminary attachment is resorted to at the commencement of the action or at

any time before the entry of judgment, for the temporary seizure of the
property of the adverse party. Final attachment is available after the judgment
in the main action had become executory, and for the satisfaction of said
judgment.
In preliminary attachment, the proceeds of the sale, in cases allowed, are in
custodia legis (Sec. 11, Rule 57). In final attachment, the proceeds of the sale
are turned over to the attaching creditor.

ASSIGNMENT NUMBER TWELVE

1. WHAT IS THE NATURE OF A PRELIMINARY INJUNCTION? DIFFERENTIATE IT
FROM A MAIN ACTION FOR INJUNCTION.
Preliminary injunction is an ancillary or preventive remedy where a court requires a
person, a party or even a court or tribunal either to refrain (prohibitory) from or to
perform (mandatory) particular acts during the pendency of an action. It is merely a
temporary remedy subject to the final disposition of principal action (Dungog vs. CA).

Preliminary injunction is a provisional remedy; it is not a cause of action itself

but merely an adjunct to a main suit. A main action for injunction is an
independent/primary action.
Preliminary injunction seeks to preserve the status quo until the merits can be
heard. A main action for injunction amounts to perpetually restraining or
commanding the performance of an act after trial.

2. WHAT ARE THE REQUISITES FOR THE ISSUANCE OF A WRIT OF PRELIMINARY

INJUNCTION? DIFFERENTIATE PROHIBITORY FROM MANDATORY INJUNCTION.
The requisites for the issuance of a writ of preliminary injunction are:
Verified application stating the grounds for its issuance (Sec. 4, Rule 58);
Applicant must establish that he has a right to relief, a right in esse or a right
to be protected and the act against which the injunction is directed is violative
of such right;
Applicant must establish that there is a need to restrain the commission or
continuance of the acts complained of and if not enjoined would work injustice
to the applicant;
Applicant must post a bond, unless exempted by the court. This bond is
executed in favor of the person enjoined to answer for all damages which the
latter may sustain by reason of injunction or restraining order if the court
should finally decide that the applicant was not entitled to the writ or order;
Service of summons, except when (i) summons could not be served personally
or by substituted service; (ii) the adverse party is a resident but is temporarily
absent from the Philippines; or (iii) the adverse party is a non-resident;
The plaintiff praying for the writ must further establish that he has a present
and unmistakable right to be protected and there is a special and paramount
necessity for the writ to prevent serious damage

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Prohibitory injunction requires a person to refrain from a particular act;

mandatory injunction requires a person to perform a particular act.
Prohibitory injunction contemplates that the act has not yet been performed; in
mandatory injunction, the act has already been performed and this act has
violated the rights of another.

3. MAY A WRIT OF INJUNCTION BE ISSUED EX PARTE? HOW ABOUT A

TEMPORARY RESTRAINING ORDER (TRO)?
A writ of injunction cannot be issued ex parte. No preliminary injunction shall be granted
without hearing and prior notice to the party or person sought to be enjoined. The reason
is that a preliminary injunction may cause grave and irreparable injury to the party
enjoined.
On the other hand, a TRO can be issued ex parte; however, it is only the Executive Judge
who can issue immediately a TRO effective only for 72 hours from issuance. No other
judge has the right or power to issue a TRO ex parte. The judge to whom the case is
assigned will then conduct a summary hearing to determine whether the TRO shall be
extended, but in no case beyond 20 days including the original 72-hour period.
4. WHAT IS THE LIFETIME OF A TEMPORARY RESTRAINING ORDER (TRO) ISSUED
BY THE RTC, COURT OF APPEALS, AND SUPREME COURT?

If issued by the MTC or RTC: 20 days from service on the party sought to be
enjoined; if a 72-hour TRO is issued, the total period of effectivity of the TRO
shall not exceed 20 days, including the original 72 hours;
If issued by the CA: 60 days from service on the party sought to be enjoined;
If issued by the SC: effective until further orders (Sec. 5, Rule 67).

In computing the effectivity of a TRO, Saturdays, Sundays, and holidays are not excluded
(Marcos-Manotoc vs. Judge Agcaoili). Any court lower than the SC cannot issue a second
TRO; this TRO is void. The remedy is to issue an injunction (Carbungco vs. CA).
5. ENUMERATE THE INSTANCES WHEN THE ISSUANCE OF AN INJUNCTION OR
TRO IS NOT ALLOWED.
Injunction is not proper:
In an action to compel a spouse to cohabit with the other (Arroyo vs. Arroyo);
For restraining consummated acts (Acain vs. Board of Canvassers), except if
the complaint alleges that the defendant will, if not prevented, continue to
perform the objectionable acts (Dayrit vs. De los Santos);
To enjoin a public officer from performing duties specifically imposed by law
(Wong Sin Tong vs. Aquino);
To transfer possession of a property from another (Municipality of Camiling vs.
De Aquino), except in forcible entry cases (Sec. 3, Rule 70).
6. HOW DO WE ASK FOR THE DISCHARGE [OF] A WRIT OF PRELIMINARY
INJUNCTION OR RESTRAINING ORDER?

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The application for injunction or restraining order may be denied, upon a showing of its
insufficiency. The injunction or restraining order may also be denied, or, if granted, may
be dissolved, on other grounds upon affidavits of the party or person enjoined, which
may be opposed by the applicant also by affidavits. It may further be denied, or if
granted, may be dissolved, if it appears after hearing that although the applicant is
entitled to the injunction or restraining order, the issuance or continuance thereof, as the
case may be, would cause irreparable damage to the party or person enjoined while the
applicant can be fully compensated for such damages as he may suffer, and the former
files a bond in an amount fixed by the court conditioned that he will pay all damages
which the applicant may suffer by the denial or the dissolution of the injunction or
restraining order. If it appears that the extent of the preliminary injunction or restraining
order granted is too great, it may be modified (Sec. 6, Rule 58).
7. WHAT IS THE NATURE OF THE PROVISIONAL REMEDY OF RECEIVERSHIP?
Receivership is a provisional remedy wherein the court appoints a representative to
preserve, administer, dispose of and prevent the loss or dissipation of the real or
personal property during the pendency of an action. It may be the principal action itself
or a mere provisional remedy; it can be availed of even after the judgment has become
final and executory as it may be applied for to aid execution or carry judgment into effect.
[Receivership, like injunction, may also be a principal action (Sec. 4, Rule 39).]
8. WHAT IS THE FUNCTION OF A RECEIVER? WHAT ARE THE POWERS AND
DUTIES OF A RECEIVER?
A receiver is a representative of the court appointing him for the purpose of preserving
and conserving the property under receivership and preventing its possible destruction
or dissipation if it goes to the possession of another person (Salientes vs. IAC). A
receiver acts in a fiduciary capacity and with impartiality towards all interested persons
(Arranza vs. BF Homes).
The powers of a receiver are:
Power to bring and defend actions in his own name;
Take and keep possession of the property in controversy;
Receive rents;
Collect debts due to himself as receiver or to the fund, property, estate, person
or corporation of which he is a receiver;
Compound for and compromise debts collected;
Make transfers;
Pay outstanding debts;
Divide money and other property that shall remain among the persons legally
entitled to receive the same;
Do such acts respecting the property as the court may authorize; and
Invest funds in his hands only by order of the court upon the written consent
of all the parties (Sec. 6, Rule 59).
9. MAY A RECEIVER BE APPOINTED EX PARTE?

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No. There must be a hearing (Sec. 3, Rule 59).
10. WHEN IS THE APPOINTMENT OF RECEIVER ALLOWED? CITE THE INSTANCES
AND EXPLAIN EACH.

The property or fund is in danger of being lost, removed or materially injured;

The mortgaged property is in danger of being wasted or dissipated or
materially injured, and that its value is probably insufficient to discharge the
mortgaged debt;
There is [a] stipulation in the contract of mortgage;
After judgment, to preserve the property during the pendency of an appeal, or
to dispose according to judgment;
To aid execution when execution has been returned unsatisfied;
Judgment obligor refuses to apply his property in satisfaction of the judgment;
or
When it appears that the appointment of a receiver is the most convenient and
feasible means of preserving administering, or disposing of the property (Sec.
1, Rule 59).

11. WHEN SHOULD THE RECEIVERSHIP BE TERMINATED?

A receiver may be discharged on the following grounds:
Posting of counter-bond by adverse party (Sec. 3, Rule 59) [where counterbond is insufficient or defective, receiver may be re-appointed (Sec. 5, Rule
59)];
Appointment of receiver was made without sufficient cause (Sec. 3, Rule 59);
Insufficient or defective applicants bond (Sec. 5, Rule 59);
Insufficient or defective receivers bond (Sec. 5, Rule 59);
The receiver is no longer necessary (Sec. 8, Rule 59).
Receivership is terminated:
By the court motu propio or on motion by either party;
Based on the following grounds:
o Necessity for receiver no longer exists; or
o Receiver asserts ownership over the property (Martinez vs. Grao); and
After due notice and hearing to all interested party (Sec. 8, Rule 59).

SPECIAL CIVIL ACTIONS

INTERPLEADER
Requisites:
1.
2.
3.
4.

Two or more claimants with adverse or conflicting interest upon a subject matter
The conflicting claims involve the same subject matter
The conflicting claims are made against the same person (plaintiff)
The plaintiff has no claim upon the subject matter of the adverse claims or if he has an
interest at all, such interest is not disputed by the claimants
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FILING OF COMPLAINT

No affirmative relief
Order
Payment/deposit to court

SUMMONS

Order
Complaint

MOTION TO
DISMISS/ANSWER
MTD on the ground of (1)
impropriety
of
the
interpleader action or other
(2) Rule 16 grounds
(except failure to state
cause of action)
Period to file answer tolled
(remaining 5 days)

DECLARATORY RELIEF & SIMILAR REMEDIES

Purpose:
1. Determine any question of construction or validity arising from the subject of the action
2. Seek for a declaration of the petitioners rights thereunder
No prayer for affirmative reliefs.
Action for declaratory relief:
1. The subject matter of the controversy must be a deed, will, contract or other written
instrument, statute, executive order or regulation, or ordinance
2. The terms of said documents and the validity thereof are doubtful and require judicial
construction
3. There must be no breach of the documents in question
4. There must be an actual justiciable controversy or the ripening seeds of one between
persons whose rights are adverse
5. The issue must be ripe for judicial determination
6. Adequate relief is not available through other means or other forms of action or
proceeding
Exclusive list of SM for declaratory relief:
1.
2.
3.
4.
5.
6.
7.

Deed
Will
Contract or other written instrument
Statute
Executive order or regulation
Ordinance
Any other governmental regulation

Supervening breach: when breach occurs after the filing of the petition for declaratory relief and
before its final determination, the action is converted to an ordinary action
Similar remedies:

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1. Action for the reformation of the instrument
2. Action to quiet title to real property or remove clouds therefrom
3. Action to consolidate ownership under CC, Art. 1607
Reformation of the instrument, not the contract
Reformation not allowed in:
(a) Simple donations inter vivos wherein no condition is imposed
(b) Wills
(c) When the real agreement is void
Consolidation for the purpose of registration of the property (not to consolidate ownership)
REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF COMELEC AND
COA
1. Issue: Commission acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction
2. Filed within 30 days from notice of judgment, final order or resolution
3. If interlocutory order of the commission, Rule 65 applies (period to file)
4. Filing of MR of MNT shall interrupt the period (if allowed by commission rules); if motion
is denied, file within the remaining period which shall not be less than 5 days from notice
of denial
5. Fresh period rule not applicable
6. Filing of petition does not stay execution, unless otherwise ordered by SC
Requisites:
1. The petition must be verified
2. The petition shall state the specific material dates showing that it was filed within the
period fixed (material data rule)
3. The petition shall contain a sworn certification against forum shopping
Failure to comply with requirements as to form and contents is a ground for dismissal
Court action:
1. Deny the petition outright
(a) Not sufficient in form and substance
(b) Petition is filed manifestly for delay
(c) Question raised is too unsubstantial to warrant further proceedings
-OR2. Order the filing of comment (within 10 days from notice
Submit case for resolution
CERTIORARI, PROHIBITION & MANDAMUS
Certiorari
Requisites:
1. Tribunal, board, or officer exercises judicial or quasi-judicial functions
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2. Acted without or in excess of its/his jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction
3. There is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course
of law
Prohibition
Requisites:
1. Proceedings of any tribunal, corporation, boar, officer or person, whether exercising
judicial, quasi-judicial or ministerial
2. Without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction
3. No appeal or any other plain, speedy, and adequate remedy in the ordinary course of
law
Prayer: judgment be rendered COMMANDING the respondent to DESIST FROM FURTHER
PROCEEDING in the action or matter specifies therein, or otherwise granting such incidental
reliefs as law and justice may require
Mandamus
Requisites:
1. Tribunal, corporation, board, officer or person unlawfully neglects the performance of act;
or
Such act is specifically enjoined by law as a duty resulting from an office, trust or
station, or
2. Unlawfully excludes another from the use and enjoyment of a right or office to which
such other is entitled
3. No other plain, speedy, and inadequate remedy on the ordinary course of law
Prayer: judgment be rendered COMMANDING the respondent, IMMEDIATELY OR AT SOME
OTHER TIME to be specified by the court, TO DO THE ACT required to be done to protect the
rights of the petitioner, and to PAY the damages sustained by the petitioner by reason of the
wrongful acts of the respondent
FILING REQUIREMENTS:
verified petition in the proper court, alleging the facts with certainty and praying that judgment
be rendered annulling or modifying the proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution
subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a
sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule
46.
Filed not later than sixty (60) days from notice of the judgment, order or resolution.
60 days from notice of denial of motion (MNT or MR)
RTC:MTC/corporation, board, officer, or person
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CA/Sandiganbayan (w/n appellate jurisdiction)
CA: quasi-judicial agency
COMELEC: (exclusive appellate jurisdiction) elections cases involving an act or omission of a
municipal or regional trial court
Unless otherwise specifically directed, public respondents shall not appear in or file an answer
or comment
Public respondents included as nominal parties.
TRO/preliminary injunction pending proceedings.
Petition shall not interrupt the principal case unless a TRO/writ of preliminary injunction is
issued.
Absent injunctive writ, public respondent shall proceed with the principal case within 10 days
from filing of the petition for certiorari
Grounds for dismissal of the petition
Patently without merit
Prosecuted manifestly for delay
Questions raised are too unsubstantial to require consideration (Rule 65, Section 8)
Award treble costs solidarily against petitioner and counsel (administrative sanctions)
Jurisprudence
At any rate, the remedy against an interlocutory order, not subject of an appeal, is an
appropriate special civil action under Rule 65, provided that the interlocutory order is rendered
without or in excess of jurisdiction or with grave abuse of discretion. Only then is certiorari under
Rule 65 allowed to be resorted to.
The petition for certiorari under Rule 65, however, is not available to any person who feels
injured by the decision of a tribunal, board or officer exercising judicial or quasi judicial
functions. The person aggrieved under Section 1 of Rule 65 who can avail of the special civil
action of certiorari pertains only to one who was a party in the proceedings before the court a
quo, or in this case before the COA. To hold otherwise would open the courts to numerous and
endless litigations.
(Crisologo v. JEWM Agro-Industrial Corp., G.R. No. 196894, March 3, 2014)
Section 1 of Rule 41[7] provides that an order dismissing an action without prejudice is not
appealable. The remedy of the aggrieved party is to file a special civil action under Rule 65.
Section 1 of Rule 41 expressly states that where the judgment or final order is not appealable,
the aggrieved party may file an appropriate special civil action under Rule 65. (Casupanan v.
Laroya, G.R. No. 145391. August 26, 2002)
In a long line of cases, the Court has consistently ruled that "the extraordinary writ of certiorari is
always available where there is no appeal or any other plain, speedy and adequate remedy in
the ordinary course of law." In Jaca v. Davao Lumber Co., the Court ruled:
x x x Although Section 1, Rule 65 of the Rules of Court provides that the special civil action of
certiorari may only be invoked when "there is no appeal, nor any plain, speedy and adequate
remedy in the course of law," this rule is not without exception. The availability of the ordinary
course of appeal does not constitute sufficient ground to prevent a party from making use of the
extraordinary remedy of certiorari where appeal is not an adequate remedy or equally beneficial,
speedy and sufficient. It is the inadequacy not the mere absence of all other legal remedies
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and the danger of failure of justice without the writ that usually determines the propriety of
certiorari.
(A.L. Ang Network, Inc. v. Mondejar, G.R. No. 200804, January 22, 2014)
By express provision of law, the judgment of the court in a summary proceeding shall be
immediately final and executory. As a matter of course, it follows that no appeal can be had of
the trial court's judgment ina summary proceeding for the declaration of presumptive death of an
absent spouse under Article 41 of the Family Code. It goes without saying, however, that an
aggrieved party may file a petition for certiorari to question abuse of discretion amounting to lack
of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the
Doctrine of Hierarchy of Courts. To be sure, even if the Court's original jurisdiction to issue a writ
of certiorari is concurrent with the RTCs and the Court of Appeals in certain cases, such
concurrence does not sanction an unrestricted freedom of choice of court forum. (Republic v.
Cantor, G.R. No. 184621, December 10, 2013)
In Republic v. Francisco (539 Phil. 433, 449 2006), we ruled that decisions of administrative or
quasi- administrative agencies which are declared by law final and unappealable are subject to
judicial review if they fail the test of arbitrariness, or upon proof of gross abuse of discretion,
fraud or error of law. When such administrative or quasi-judicial bodies grossly misappreciate
evidence of such nature as to compel a contrary conclusion, the Court will not hesitate to
reverse the factual findings. Thus, the decision of the Ombudsman may be reviewed, modified
or reversed via petition for certiorari under Rule 65 of the Rules of Court, on a finding that it had
no jurisdiction over the complaint, or of grave abuse of discretion amounting to excess or lack of
jurisdiction. (Dagan v. Office of the Ombudsman, G.R. No. 184083, November 19, 2013)
To reiterate, under Section 4, Rule 65 of the Rules of Court and as applied in Laguna Metts
Corporation, the general rule is that a petition for certiorari must be filed within sixty (60) days
from notice of the judgment, order, or resolution sought to be assailed. Under exceptional
circumstances, however, and subject to the sound discretion of the Court, said period may be
extended pursuant to Domdom, Labao and Mid-Islands Power cases. (Republic v. St. Vincent
De Paul Colleges, G.R. No. 192908, August 22, 2012)
Labao v. Flores (G.R. No. 187984, November 15, 2010) subsequently laid down some of the
exceptions to the strict application of the rule, viz:
Under Section 4 of Rule 65 of the 1997 Rules of Civil Procedure, certiorari should be instituted
within a period of 60 days from notice of the judgment, order, or resolution sought to be
assailed. The 60-day period is inextendible to avoid any unreasonable delay that would violate
the constitutional rights of parties to a speedy disposition of their case.
However, there are recognized exceptions to their strict observance, such as: (1) most
persuasive and weighty reasons; (2) to relieve a litigant from an injustice not commensurate
with his failure to comply with the prescribed procedure; (3) good faith of the defaulting party by
immediately paying within a reasonable time from the time of the default; (4) the existence of
special or compelling circumstances; (5) the merits of the case; (6) a cause not entirely
attributable to the fault or negligence of the party favored by the suspension of the rules; (7) a
lack of any showing that the review sought is merely frivolous and dilatory; (8) the other party
will not be unjustly prejudiced thereby; (9) fraud, accident, mistake or excusable negligence
without appellants fault; (10) peculiar legal and equitable circumstances attendant to each case;
(11) in the name of substantial justice and fair play; (12) importance of the issues involved; and
(13) exercise of sound discretion by the judge guided by all the attendant circumstances. Thus,
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[HEARTBREAK NOTES] [SCAPR] [v.1.0, 2016]

there should be an effort on the part of the party invoking liberality to advance a reasonable or
meritorious explanation for his/her failure to comply with the rules.
Even more recently, in Mid-Islands Power Generation Corporation v. Court of Appeals,29 the
Court, taking into consideration Laguna Metts Corporation and Domdom, "relaxed the
procedural technicalities introduced under A.M. No. 07-7-12-SC in order to serve substantial
justice and safeguard strong public interest" and affirmed the extension granted by the CA to the
respondent Power One Corporation due to the exceptional nature of the case and the strong
public interest involved.
While, ordinarily, mandamus will not prosper to compel a discretionary act, the writ shall issue in
instances of gross abuse of discretion, manifest injustice or palpable excess of authority,
equivalent to denial of a settled right to which petitioner is entitled; and when there is no other
plain, speedy and adequate remedy. This Court has recognized that [a] judges decision to
refuse to act on account of some disqualification is not conclusive, and his competency may be
determined on an application for mandamus to compel him to act. (Pagoda Philippines, Inc. v.
Phlippine Canning, Inc., G.R. No. 160966, 11 October 2005)
Hence, every litigant who brings the petitions for the extraordinary writs of certiorari, prohibition
and mandamus should ever be mindful of the policy on the hierarchy of courts, the observance
of which is explicitly defined and enjoined in Section 4 of Rule 65, Rules of Court. (Spouses
Dacudao v. Sec. of Justice, G.R. 188056, 8 January 2013)
Galang v. Geronimo, G.R. No. 192793, 22 February 2011
The question then is, would taking cognizance of a petition for certiorari questioning an
interlocutory order of the regional trial court in an electoral protest case be considered in aid of
the appellate jurisdiction of the COMELEC? The Court finds in the affirmative.
Interpreting the phrase in aid of its appellate jurisdiction, the Court held in J.M. Tuason & Co.,
Inc. v. Jaramillo, et al.[6] that if a case may be appealed to a particular court or judicial tribunal
or body, then said court or judicial tribunal or body has jurisdiction to issue the extraordinary writ
of certiorari, in aid of its appellate jurisdiction. This was reiterated in De Jesus v. Court of
Appeals,[7] where the Court stated that a court may issue a writ of certiorari in aid of its
appellate jurisdiction if said court has jurisdiction to review, by appeal or writ of error, the final
orders or decisions of the lower court.
Note that Section 8, Rule 14 of the 2010 Rules of Procedure in Election Contests Before the
Courts Involving Elective Municipal Officials states that:
Sec. 8. Appeal. - An aggrieved party may appeal the decision to the COMELEC within five (5)
days after promulgation, by filing a notice of appeal with the court that rendered the decision,
with copy served on the adverse counsel or on the adverse party who is not represented by
counsel.[8]
Since it is the COMELEC which has jurisdiction to take cognizance of an appeal from the
decision of the regional trial court in election contests involving elective municipal officials, then
it is also the COMELEC which has jurisdiction to issue a writ of certiorari in aid of its appellate
jurisdiction. Clearly, petitioner erred in invoking this Court's power to issue said extraordinary
writ.

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[HEARTBREAK NOTES] [SCAPR] [v.1.0, 2016]

QUO WARRANTO
PETITIONERS
A person claiming to be
entitled to a public office
or position usurped or
unlawfully
held
or
exercised by another
Solicitor General or public
prosecutor:
(must) when directed by
the President of the
Philippines or he has
good
reasons
to
commence it
With permission of the
court at the request and
upon relation of another
person

RESPONDENT
(a) A person who usurps,
intrudes into, or unlawfully
holds or exercises a public
office,
position
or
franchise;

VENUE
SC; CA; RTC exercising
jurisdiction
over
the
territorial area where the
respondent or any of the
respondents resides

(b) 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

when
the
Solicitor
General commences the
action: RTC MANILA;
CA; SC.

LIMITATION
Commence within one
(1) year after the cause
of such ouster, or the
right of the petitioner to
hold such office or
position arose

(c) An association which

acts as a corporation
within
the Philippines
without
being
legally
incorporated or without
lawful authority so to act.

EXPROPRIATION
Stages
1. Determination of the authority of the plaintiff to expropriate (necessity and public purpose)
2. Determination of just compensation (through the court-appointed commissioners)
Verified complaint
State right and purpose of expropriation
Describe the real or personal property sought to be expropriated
Join as defendants all persons owning or claiming to own, occupying, any part or interest,
showing as far as practicable, the separate interest of each defendant
Answer
When defendant has: (1) objection to the filing of the complaint; (2) objection to the allegations
in the complaint; (3) objection or defense to the taking of the property
Answer may be amended within 10 days from filing (with leave); no counterclaim, cross-claim or
3rd party complaint
Defendant may still present evidence as to amount of the compensation even if defendant did
not file answer
Taking/entry

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[HEARTBREAK NOTES] [SCAPR] [v.1.0, 2016]

Upon filing or at any time thereafter, IF plaintiff deposits an amount equal to the assessed value
of the property for purposes of taxation/value as provisionally determined
Deposit in money unless otherwise authorized by the court
Court orders sheriff or other proper officer to place the plaintiff in possession of the property and
submit report
With notice on defendant
No prior hearing before immediate possession
LGC; requisites
1. Ordinance to exercise the power of eminent domain
2. Public use, purpose, or welfare
3. Payment of just compensation
4. Valid and definite offer has been previously made to the owner of the property sought to be
expropriated, but the offer was not accepted
LGC; taking
1. Expropriation proceedings are filed
2. Deposit to the proper court of at least 15% of the FMV of the property based on the current
tax declaration of the property, at the time of taking
REQS FOR ENTRY
Deposit/payment
Basis of amount

R67
Initial deposit only
Deposit equivalent to
assessed value for
taxation purposes

RA 8974
Immediate payment
Market value per tax
declaration of current
relevant
zonal
valuation of the BIR +
value
of
improvements

Time of entry/taking

Upon
filing
of
complaint, with notice
to defendant, and
after deposit

Only upon immediate

payment
(involving
national government
infrastructure
projects)

LGC
Deposit
Deposit to the proper
court of at least 15%
of the FMV of the
property based on the
current
tax
declaration of the
property, at the time
of taking
Upon
filing
of
expropriation
proceedings
and
deposit

Order of condemnation:
Declares plaintiff has lawful right to take the property for public use or purpose upon payment of
just compensation
Order is appealable; but will not suspend determination of just compensation
Just compensation
Appointment of commissioners to ascertain just compensation is mandatory
Hearing before the commissioners is indispensable to allow parties to present evidence on the
issue of just compensation

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[HEARTBREAK NOTES] [SCAPR] [v.1.0, 2016]

Objections to the appointment made within 10 days from service of order of appointment;
resolved within 30 days from notice of objections
Consequential damages and consequential benefits assessed in determining just compensation
Judgment as to just compensation is appealable
Just compensation ascertained at the date of the taking of the property or the filing of the
complaint
When the taking of the property sought to be expropriated coincides with the commencement of
the expropriation proceedings, or takes place subsequent to the filing of the complaint for
eminent domain, the just compensation should be determined as of the date of the filing of the
complaint
If defendant declines to receive the amount tendered, amount shall be deposited in court and
have the same effect as actual payment.
Non-payment does not entitle private landowner to recover possession. However, failure to pay
by government within 5 years from finality of judgment will entitle recovery of possession by
landowner.
FORECLOSURE
ORDINARY EXECUTION

JUDICIAL FORECLOSURE

R39

R68

EXTRAJUDICIAL
FORECLOSURE
Act 3135, as amended

Judicial foreclosure (R68)

Procedure
Equity of redemption before confirmation

Right of redemption (S47, GBL) 1 yr. from registration of COS

Payment w/in 90-120 days from entry of judgment

COMPLAINT

SALE
[MOTION (e)]

JUDGMENT

POSSESSION
[MOTION]

[MOTION (e)]

CONFIRMATION OF SALE

(SUBJECT TO APPEAL)
(SUBJECT TO APPEAL)

ANNULMENT OF MORTGAGE & FORECLOSURE

Deficiency judgment
Upon motion, judgment will issue for such balance due to the plaintiff.
Deficiency judgment is appealable.
Registration

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[HEARTBREAK NOTES] [SCAPR] [v.1.0, 2016]

WITHOUT RIGHT OF REDEMPTION
Registration of certified
copy of final order
confirming sale

Cancellation of mortgagors
certificate of title

Issuance of certificate of
title in the name of the
purchaser

Brief memorandum on the

certificate of title

Registration of DEED OF
REDEMPTION and brief
memo on certificate of title

REDEMPTION
Registration of certificate of
sale and order confirming
sale
NON-REDEMPTION
Registration of
certificate of
sale and order
confirming
sale

Brief
memorandum
on the
certificate of
title

Registration of
FINAL DEED
OF SALE

Cancellation of
mortgagors
certificate of
title

Issuance of
new certificate
of title in favor
of purchaser

The right of redemption in relation to a mortgage understood in the sense of a prerogative to

re-acquire mortgaged property after registration of the foreclosure sale exists only in the case
of the extrajudicial foreclosure of the mortgage. No such right is recognized in a judicial
foreclosure except only where the mortgagee is the Philippine National Bank or a bank or
a banking institution. (Huerta Alba Resort, Inc. v. CA, G.R. No. 128567, September 1, 2000
cited in Sps. Sibug v. Sps. Suba, et al, G.R. No. 137792, August 12, 2003)
Injunction to restrain waste upon motion (with or without notice)
Rents, earnings and income belong to debtor until expiration of redemption period
Ineffective sale
1. Purchaser on motion in the same action or in a separate action recover the price paid
from judgment oblige
2. Purchaser on motion have original judgment revived in his name
Mere inadequacy of price per se will not invalidate a judicial sale of real property. It is only
when the inadequacy of the price is grossly shocking to the conscience or revolting to the mind,
such that a reasonable man would neither directly nor indirectly be likely to consent to it, that the
sale shall be declared null and void. This rule, however, does not strictly apply in the case of
extrajudicial foreclosure sales where the right of redemption is available.
Extrajudicial foreclosure
Act no. 3135, as amended
a.m. no. 99-10-05-0, as amended
Circular no. 7-2002
Procedure

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[HEARTBREAK NOTES] [SCAPR] [v.1.0, 2016]

REDEMPTION*

EXPIRATION OF REDEMPTION

APPLICATION

SALE

NOTICE

REGISTRATION OF CERTIFICATE OF SALE

WRIT OF POSSESSION

Jurisprudence
Ramirez v. Manila Banking Corp. (G.R. No. 198800, December 11, 2013)
The Act (3135) only requires
(1) the posting of notices of sale in three public places, and
(2) the publication of the same in a newspaper of general circulation.
Personal notice to the mortgagor is not necessary. Nevertheless, the parties to the mortgage
contract are not precluded from exacting additional requirements.
Carlos Lim, et al. v. Development Bank of the Philippines (G.R. No. 177050, July 1, 2013)
[U]nless the parties stipulate, personal notice to the mortgagor in extrajudicial foreclosure
proceedings is not necessary because Section 3 of Act No. 3135 only requires the posting of the
notice of sale in three public places and the publication of that notice in a newspaper of general
circulation.
What is the legal effect of violating of the deed of mortgage which requires personal notice to
the petitioner-mortgagor by the respondent-mortgagee bank?
Sycamore Ventures Corp. v. Metropolitan Bank and Trust Co. (G.R. No. 173183, November 18,
2013)
Whether the determination of the mortgaged properties appraisal value constitutes a prejudicial
question that warrants the suspension of the foreclosure proceedings
Act No. 3135 has no requirement for the determination of the mortgaged properties appraisal
value. Nothing in the law likewise indicates that the mortgagee-creditors appraisal value shall
be the basis for the bid price. Neither is there any rule nor any guideline prescribing the
minimum amount of bid, nor that the bid should be at least equal to the properties current
appraised value. What the law only provides are the requirements, procedure, venue and the
mortgagors right to redeem the property.
Rules on writ of possession
Nature of issuance
ex parte
non-adversarial
summary and

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[HEARTBREAK NOTES] [SCAPR] [v.1.0, 2016]

ministerial
Under Section 7 of Act No. 3135, as amended, a writ of possession may be issued in favor of a
purchaser in a foreclosure sale either
(1) within the one-year redemption period, upon the filing of a bond; or
(2) after the lapse of the redemption period, without need of a bond.
Within the one-year redemption period, the purchaser may apply for a writ of possession by
filing a petition in the form of an ex parte motion under oath, in the registration or cadastral
proceedings of the registered property.
The purchaser at an extrajudicial foreclosure sale has a right to the possession of the property
even during the one-year redemption period provided the purchaser files an indemnity bond.
After the lapse of the said period with no redemption having been made, that right becomes
absolute and may be demanded by the purchaser even without the posting of a bond.
(Navarrav. CA, G.R. No. 86237, 17 December 1991 cited in Chu, et al v. Hon. Laqui, G.R. No.
169190, February 11, 2010)
A purchaser at an extrajudicial foreclosure sale is entitled to a writ of possession as a matter of
right after consolidation of ownership for failure of the mortgagor to redeem the property.
It is ministerial upon the court to issue a writ of possession after the foreclosure sale and during
the period of redemption. Upon the filing of an ex parte motion and the approval of the
corresponding bond, the court issues the order for a writ of possession. The writ of possession
issues as a matter of course even without the filing and approval of a bond after consolidation of
ownership and the issuance of a new TCT in the name of the purchaser. (Villanueva v. Cherdan
Lending Investors Corp, G.R. No. 177881, October, 13, 2010)
The duty of the trial court to grant a writ of possession in such instances is ministerial,
and the court may not exercise discretion or judgment, thus:
Consequently, the purchaser, who has a right to possession after the expiration of the
redemption period, becomes the absolute owner of the property when no redemption is made.
The purchaser can demand possession at any time following the consolidation of ownership
in his name and the issuance to him of a new TCT. After consolidation of title in the purchasers
name for failure of the mortgagor to redeem the property, the purchasers right to possession
ripens into the absolute right of a confirmed owner. At that point, the issuance of a writ of
possession, upon proper application and proof of title becomes merely a ministerial function.
Effectively, the court cannot exercise its discretion. (Edralin v. Philippine Veterans Bank, G.R.
No. 168523, March 9, 2011)
A pending action for annulment of mortgage or foreclosure does not stay the issuance of a writ
of possession. (Sps. Tolosa v. UCPB, G.R. No. 183058, April 3, 2013)
Exceptions
Law
Rule 39, Section 33, which is made applicable to the extrajudicial foreclosure of real estate
mortgages by Section 6 of Act 3135:
Upon the expiration of the right of redemption, the purchaser or redemptioner shall be
substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the
property as of the time of the levy. The possession of the property shall be given to the
purchaser or last redemptioner by the same officer unless a third party is actually holding
the property adversely to the judgment obligor.
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[HEARTBREAK NOTES] [SCAPR] [v.1.0, 2016]

The obligation of a court to issue a writ of possession ceases to be ministerial if there is a

third party holding the property adversely to the judgment debtor. Where such third party
exists, the trial court should conduct a hearing to determine the nature of his adverse
possession. (Sps. Fortaleza v. Sps. Lapitan, G.R. No. 178288, August 15, 2012)
Basis:
The third partys possession of the property is legally presumed to be based on a just title, a
presumption which may be overcome by the purchaser in a judicial proceeding to recover
property. (DBP v. Prime Neighborhood Assn., G.R. Nos. 175728 & 178914, May 8, 2009 cited in
Villanueva v. Cherdan Lending Investors Inc., G.R. No. 177881, October 31, 2010)
2. Jurisprudence (Sps. Tolosa v. UCBP, supra)
Cometa v. IAC, 235 Phil 569 (1987)
Issuance of writ deferred for equitable consideration pursuant to an action to invalidate auction
sale of properties approx. worth P500k sold at P57,396.85
Barican v. IAC, 245 Phil. 316 (1988)
Mortgaged properties, in the meantime, were sold to third parties who assumed the
indebtedness and took possession of property
Sulit v. CA, 335 Phil. 914 (1997)
Failure to deliver surplus proceeds equivalent to at least 40% of mortgage debt
As a rule, mere inadequacy or surplus in the purchase price does not affect the
purchasers entitlement to a writ of possession. In case there is a surplus, the mortgagor is
entitled to receive the same from the purchaser. The failure or refusal of the mortgageepurchaser to return the surplus does not affect the validity of the sale but gives the mortgagor a
cause of action against the mortgagee-purchaser. (Metropolitan Bank & Trust Co. v. Lamb
Construction Consortium Corp., G.R. 170906, November 27, 2009)
The purchasers right to request for the issuance of the writ of possession of the land
never prescribes. The right to possess a property merely follows the right of ownership, and it
would be illogical to hold that a person having ownership of a parcel of land is barred from
seeking possession thereof. (Sps. Edralin v. Phil. Veterans Bank, G.R. No. 168523, March 9,
2011)
The foreclosure of a mortgage prior to the mortgagor's default on the principal obligation is
premature, and should be undone for being void and ineffectual. The mortgagee who has been
meanwhile given possession of the mortgaged property by virtue of a writ of possession issued
to it as the purchaser at the foreclosure sale may be required to restore the possession of the
property to the mortgagor and to pay reasonable rent for the use of the property during the
intervening period.(DBP v. Guarina Agri. and Realty Devt Corp., G.R. No. 160758, January 15,
2014)
Redemption after one-year period:
An action to redeem filed within the period of redemption, with a simultaneous deposit of the
redemption money tendered to the sheriff, is equivalent to an offer to redeem and has the effect
of preserving the right to redemption for future enforcement even beyond the one-year period.
(Sps. Fortaleza v. Sps. Lapitan, G.R. 178288, August 15, 2012 citing Tolentino v. CA, 193 Phil.
663 (1981)).

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[HEARTBREAK NOTES] [SCAPR] [v.1.0, 2016]

The mortgagor was allowed to redeem the disputed property after finding that the tender of the
redemption price to the sheriff was made within the one-year period and for a sufficient amount.
(Sps Fortaleza, supra, citing De los Reyes v. IAC, 257 Phil. 406 (1989)).
R68 vs. EJF
R68
File
Equity of redemption
No right of redemption EXCEPT when the
mortgagee is a banking institution
Deficiency judgment
Recovery of deficiency by MOTION

EJF
No need to file an action
RIGHT OF REDEMPTION: right granted to the
mortgagor to reacquire the property even
AFTER the CONFIRMATION OF THE SALE
and (within 1 year) from the REGISTRATION
OF THE CERTIFICATE OF SALE
No deficiency judgment
Recovery of deficiency thru independent
action

PARTITION
First phase
Whether co-ownership exists
Whether partition is proper and
may be made by parties in
interest

Second
phase
(when parties do
not agree)

Plaintiff is not entitled to

partition:
Co-ownership does not
exist
Partition is prohibited

Partition BY THE COURT

O
R

co-ownership
exists;
partition is proper ---accounting of rents and
profits
received
by
defendant from the real
estate is in order

With the assistance of not more than

3 commissioners
Rendition
and
approval
of
accounting
Award for recovery of just share in
the rents and profits

Complaint for partition

[Right of action does not prescribe --- exception: acquisitive prescription]
Order for partition of real estate among all parties in interest.
Confirmation of partition
Recordation of order and confirmation
Final order decreeing partition and accounting may be appealed.
No co-owner ought to be compelled to stay in a co-ownership indefinitely, and may insist on
partition on the common property at any time.
An action to demand partition is imprescriptible or cannot be barred by laches. Each coowner may demand at any time the partition of the common property.
When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot
be divided without great prejudice to the interest of the parties, the court may order it assigned
to one of the parties willing to take the same, provided he pays to the other parties such sum or
22

[HEARTBREAK NOTES] [SCAPR] [v.1.0, 2016]

sums of money as the commissioners deem equitable, unless one of the parties interested ask
that the property be sold instead of being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale, and the commissioners shall sell the same
accordingly.
The action for partition is at once an action for declaration of co-ownership and for
segregation and conveyance of a determinate portion of the properties involved. If the
court after trial should find the existence of co-ownership among the parties, the court may and
should order the partition of the properties in the same action. (Vda. de Daffon v. Court of
Appeals, 436 Phil. 233 (2002) cited in Patricio v. Dario, III, G.R. No. 170829, November 20,
2006)
EJECTMENT
COMPLAINT
Possession of property by defendant was by contract with or by tolerance of plaintiff
Possession became illegal upon notice by plaintiff to defendant of the termination of latters
possession; defendant remained in possession
Within 1 year from last demand to vacate property
ANSWER
Compulsory counterclaim and cross claim
Within 10 days from service of summons
JUDGMENT
MOTU PROPRIO or on MOTION
Reduce the amount of damages and attorneys fees
PRELIMINARY CONFERENCE
Failure of plaintiff to appear: dismissal
Defendant who appears in the absence of the plaintiff: judgment on counterclaim
Sole defendant fails to appear: judgment in favour of plaintiff
Not later than 30 days after last answer is filed;
Order within 5 days after termination
SUBMISSION OF AFFIDAVITS AND POSITION PAPERS
Within 10 days from receipt of the order
JUDGMENT
CLARIFICATORY within 10 days from receipt of order ; 15 days from receipt of last affidavit
Within 30 days from receipt of a affidavits and position papers/expiration
Jurisprudence
Metropolitan Trial Courts are conditionally vested with authority to resolve the question of
ownership raised as an incident in an ejectment case where the determination is essential to
a complete adjudication of the issue of possession. Concomitant to the ejectment courts
authority to look into the claim of ownership for purposes of resolving the issue of possession is
its authority to interpret the contract or agreement upon which the claim is premised. (Optimum
Development Bank v. Sps. Javellanos, G.R. No. 189145, December 4, 2013)
The MeTCs ruling on the rights of the parties based on its interpretation of their contract is, of
course, not conclusive, but is merely provisional and is binding only with respect to the
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[HEARTBREAK NOTES] [SCAPR] [v.1.0, 2016]

issue of possession. (Union Bank of the Philippines v. Maunlad Homes, Inc., G.R. No. G.R.
No. 190071, August 15, 2012; Sps. Refugia v. CA, G.R. No. 327 Phil. 982, 1006 (1996))
The only issue in an ejectment case is the physical possession of real property possession de
facto and not possession de jure. But [w]here the parties to an ejectment case raise the issue of
ownership, the courts may pass upon that issue to determine who between the parties has the
better right to possess the property. (Sps. Dela Cruz v. Sps. Capco, G.R. No. G.R. No.
176055, March 17, 2014)
A judgment in favor of the plaintiff in an ejectment suit is immediately executory, but the
defendant, to stay its immediate execution, must:
(1) perfect an appeal;
(2) file a supersedeas bond; and
(3) periodically deposit the rentals becoming due during the pendency of the appeal. (Acbang v.
Hon. Luczon, G.R. No. 164246, January 15, 2014)
General Rule:
A pending action involving ownership of the same property does not bar the filing or
consideration of an ejectment suit, nor suspend the proceedings. This is so because an
ejectment case is simply designed to summarily restore physical possession of a piece of land
or building to one who has been illegally or forcibly deprived thereof, without prejudice to the
settlement of the parties' opposing claims of juridical possession in appropriate proceedings.
(Sps. De Mesa v. Sps. Acero, G.R. No. 185064, January 16, 2012)
Suspension
The pendency of another action anchored on the issue of ownership justifies the suspension of
an ejectment suit involving the same real property where the issue of possession is so
interwoven with that of ownership [that] the question of ownership would necessarily result in
the disposition of the issue of possession. (Amagan v. Marayag, 383 Phil. 486 (2000) cited in
Suarez v. Sps. Emboy, et al., G.R. No. 187944, March 12, 2014)
Only in rare instances is suspension allowed to await the outcome of the pending civil action.
One such exception is Vda. de Legaspi v. Avendao, wherein the Court declared:
x x x. Where the action, therefore, is one of illegal detainer, as distinguished from one of
forcible entry, and the right of the plaintiff to recover the premises is seriously placed in issue in
a proper judicial proceeding, it is more equitable and just and less productive of confusion and
disturbance of physical possession, with all its concomitant inconvenience and expenses. For
the Court in which the issue of legal possession, whether involving ownership or not, is brought
to restrain, should a petition for preliminary injunction be filed with it, the effects of any order or
decision in the unlawful detainer case in order to await the final judgment in the more
substantive case involving legal possession or ownership. It is only where there has been
forcible entry that as a matter of public policy the right to physical possession should be
immediately set at rest in favor of the prior possession regardless of the fact that the other party
might ultimately be found to have superior claim to the premises involved, thereby to discourage
any attempt to recover possession thru force, strategy or stealth and without resorting to the
courts. (Amagan, supra).
CONTEMPT
Indirect contempt

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Two ways of initiating indirect contempt proceedings:
(1) motu proprio by the court; or
(2) by a verified petition.
First mode:
First, there must be an order requiring the respondent to show cause why he should not be
cited for contempt.
Second, the respondent must be given the opportunity to comment on the charge against
him.
Third, there must be a hearing and the court must investigate the charge and consider
respondents answer.
Finally, only if found guilty will respondent be punished accordingly. (In the Matter of the
Contempt Orders against Lt. Gen. Jose M. Calimlim and Atty. Domingo A. Doctor, Jr., G.R. No.
141668, August 20, 2008 cited in Baculi v. Judge Belen, A.M. No. RTJ-09-2179 & A.M. NO.
RTJ-10-2234, September 24, 2012)
Second mode:
In all other cases, charges for indirect contempt shall be commenced by a verified petition 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. If the contempt charges arose out of or are related to a principal action
pending in the court, the petition for contempt shall allege that fact but said 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 joint hearing and decision.
(Rule 71, Sec. 4.)
Remedies
Direct contempt
Sec. 2. Remedy therefrom.The person adjudged in direct contempt by any court may not
appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The
execution of the judgment shall be suspended pending resolution of such petition, provided
such person files a bond fixed by the court which rendered the judgment and conditioned that
he will abide by and perform the judgment should the petition be decided against him.
Indirect contempt
Sec. 11. Review of judgment or final order; bond for stay.The judgment or final order of a
court in a case of indirect contempt may be appealed to the proper court as in criminal cases.
But execution of the judgment or final order shall not be suspended until a bond is filed by the
person adjudged in contempt, in an amount fixed by the court from which the appeal is taken,
conditioned that if the appeal be decided against him he will abide by and perform the judgment
or final order.

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