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Provisional Remedies

Nature of Provisional Remedies


Provisional Means temporary, preliminary or tentative
Provisional Remedies - Also known as ancillary or auxiliary remedies, are writs and processes available during the pendency of
the action which 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.
Provisional remedies are not causes of action themselves but merely adjuncts to a main suit. They are provisional
because they constitute temporary measures availed of during the pendency of the action and ancillary because they are
mere incidents in and are dependent upon the result of the main action.
Purpose of Provisional Remedies: These remedies are availed of by the litigants because of the following reasons: (RJSS)
To preserve or protect their rights or interest of during the pendency of the principal action
To secure the judgement
To preserve the status quo; or
To preserve the subject matter of the action.

Courts with jurisdiction over provisional remedies:


The courts which grants or issues a provisional remedy is the court which has jurisdiction over the main action. Hence,
where main case is pending in a specific Regional Trial court, it is the same court, not any other court, which may grant
the provisional remedy applied for.
The authority to grant a provisional remedy is not the sole prerogative of superior courts. Even inferior courts may also
grant all appropriate provisional remedies in an action pending with it and is within its jurisdiction.
Orders granting or denying provisional remedies are merely interlocutory and cannot be the subject of an appeal. The
remedy against an interlocutory order is an appropriate special civil action of certiorari under Rule 65, provided that the
interlocutory order is rendered without or in excess of jurisdiction or with grave abuse of discretion.

Provisional Remedies under the Rules of Court


The following are the provisional remedies provided for in the Rules of Court
Preliminary Attachment (Rule 57)
Preliminary Injunction (Rule 58)
Receivership (Rule 59)
Replevin (Rule 60)
Support Pendente Lite (Rule 61)

These provisional remedies are also available in interim reliefs provided for in other rules and laws and in criminal
cases and in some special civil actions and special proceedings.

Deposit as provisional remedy in the exercise of equity jurisdiction:


Supreme Court ruled that the trial court in the exercise of its equity jurisdiction may validly order the deposit of the
P10 Million down payment in court. The purpose of the exercise of equity jurisdiction in this case is to prevent unjust
enrichment and to ensure restitution.

Provisional Remedies in Criminal Cases:


Sec. 1, Rule 111, When a criminal action is instituted, the civil action for the recovery of civil liability arising from the
offense charged shall be deemed instituted with the criminal action
Institution of civil action does not apply when the offended party: a) waives the civil action, b) reserves the right to
institute the civil action separately, and c) institutes the civil action prior to the criminal action.
Sec. 2, Rule 127 When the civil action is properly instituted in the criminal action as provided in Rule 111, the
offended party may have the property of the accused attached as security for the satisfaction of any judgment that may
be recovered from the accused in the following cases:
When the accused is about to abscond from the Philippines;
When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied.
When the accused has concealed, removed, or disposed of his property, or is about to do so; and
When the accused resides outside the Philippines

Preliminary Attachment
Definition and Purpose
Preliminary Attachment - The proper party may have the property of the adverse party taken into the custody of the
court as security for the satisfaction of any judgment that may be covered, at the commencement of the action or at any
time before entry of judgment.
Attachment is purely statutory remedy. It cannot exist without a statute granting it.
Attachment is preliminary only when resorted to before the finality of the judgement to secure the property of the
adverse party before its dissipation.
There is no separate action called preliminary attachment. It is availed during the pendency of a principal action
because it is a mere provisional remedy.
In its nature, it is a proceeding quasi in rem or action in rem which is true only when the defendant does not appear in
the action, the only effect of which is to subject the property attached to the payment of the defendant which the court
may find to be due to the plaintiff.
If the defendant appears, the cause becomes mainly a suit in personan with the addition that the property remains liable.
Grant of preliminary attachment is discretionary upon the court and not a matter of right on the part of the applicant.
The rules on the issuance of a writ of attachment must be strictly construed in favor of the defendant. Otherwise stated,
it should be strictly construed against the applicant since this remedy is so harsh and rigorous for it exposes the debtor
to humiliation or annoyance. If the requisites for the issuance of the writ are not present, the court which issues it acts
in excess of jurisdiction.
The writ must be granted only on concrete and specific grounds and not merely averments quoting the words of the
rules.
Who may avail of preliminary attachment?
Plaintiff or any proper party may have the property of the adverse party attached. Proper party refers to defendant who
files a counterclaim, cross-claim or third-party complaint.
What is the purpose of preliminary attachment?
To seize the property of the debtor before final judgment and put the same in custodial egis even while the action is
pending for the satisfaction of a later judgment.
To enable the court to acquire jurisdiction over the res or the property subject of the action in cases where service in
person or any service to acquire jurisdiction over the defendant cannot be effected because the action is one in
personam.
Ex. Person outside the Philippines, jurisdiction over the person of the party (in personam) cannot be acquired;
hence, the remedy is to acquire jurisdiction over the res (property).

Requirements and Procedure for the Issuance


Requisites for a Preliminary attachment to issue:
The case must be any of those where preliminary attachment is proper (see grounds below).
The applicant must file a motion whether ex party or with notice and hearing.
The applicant must show by affidavit that there is no sufficient security for the claim sought to by enforced and that the
amount claimed in the action is as much as the sum of which the order is granted above all counterclaims; and
The applicant must post an attachment bond executed to the adverse party.

The affidavits need not be executed by the applicant. It may be executed by some other persons who
personally knows the facts.
The amount of bond is fixed by court equal to the value of the property.

Contents of Affidavit:
Affidavit should contain:
Sufficient cause of action exists;
That the case is one of those mentioned grounds to which writ may be issued.
That there is no other sufficient security for the claim sought to be enforced by the action; and
That the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as
much as the sum for which the order is granted above all legal counterclaims.
Affidavit should allege all the matters what the rule requires it to contain. Otherwise, the writ shall be fatally defective
and the judge issuing it is deemed to have acted in excess of his jurisdiction.
It must be shown that the security is insufficient to cover the claim.
Conditions of applicants bond:
It is conditioned upon the payment by the party applying for an order of attachment of all costs which the adverse may
be adjudged as entitled to and all damages which he may sustain by reason of attachment, if it shall be finally be
adjudged that the party applying for attachment was not entitled thereto.
The damages which may be claimed against the bond, refers only to damages sustained because of or by reason of
attachment.
Ex parte issuance or upon motion with notice and hearing:
Even if a case is already on appeal, preliminary attachment could still be availed of by an applicant.
The order of preliminary attachment may granted upon motion and notice and hearing by the court in which the action
is pending, and may even be issued by the Court of Appeals or the Supreme Court.
It may also be issued ex parte and even before summons is served upon the defendant. However, the writ may not be
enforced and validly implemented unless preceded or simultaneously accompanied by service of summons, copy of the
complaint, application for attachment, order of attachment and the attachment bond. Implementation of the writ without
the required jurisdiction over the person is null and void.
The application for the writ may be granted ex parte because it is possible that during the course of the hearing, the
party against whom the writ is sought may dispose of his property or abscond before the writ is issued. Nothing in the
Rules of Court makes notice and hearing indispensable and mandatory requisites for the issuance of a writ of
attachment.
It is not the notice to the defendant that is sought to be avoided but the time which such hearing would take because the
defendant may delay the hearing to be able to dispose of his properties.
Contents of order of attachment:
The order must require the sheriff of the court to attach so much of the property of the Philippines of the party against
whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicants demand, unless such party
makes a deposit or gives a bond in an amount equal to that fixed in the order, which may be the amount sufficient to
satisfy the applicants demand or the value of the property to be attached as stated by the applicant, exclusive of costs.
Stages of the proceedings when preliminary attachment may be applied for:
Preliminary attachment may be applied for a) at the commencement of the action, or b) at any time before entry of
judgment
If it is applied for at the commencement of the action, the application may be incorporated in a verified complaint
alleging all the grounds relied upon and complying with all the requisites for the grant of the application.
If not applied for at the commencement of the action, the application may be made at any stage of the proceedings,
even after judgment, but before its entry. The stage before the stage before the entry of judgment is the last opportunity
to avail of the remedy.

Grounds for the Issuance ( REP-FReN)


Recovery of specified amount of money or damages.
In actions for recovery of a specified sum of money or damages, except moral and exemplary, on a cause of action
arising from law, contract, quasi-contract, delict or quasi-delict against a party about to depart from the Phils. with
intent to defraud his creditors;

The amount of money and damages must be clearly specified


Preliminary attachment cannot be issued for moral and exemplar damages and other unliquidated and
contingent claims.
It is not sufficient to show that the party against whom the writ is sought is about to depart from the
Philippines. It must also show that such departure is with intent to defraud his creditors.

Action for money or property embezzled or fraudulently misapplied.


In actions for recovery of money or property embezzled or fraudulently converted to his own use by a public officer, or
an officer of a corp., or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any
person in a fiduciary capacity;

It is the character of the office or the duty of the defendant that is to be considered when the prohibited acts
are performed.
A fiduciary duty is one founded in trust and confidence.

Recovery of property unjustly or fraudulently taken or converted.


In actions to recover possession of property unjustly taken or concealed, when the property or any of its part, has been
concealed or disposed of to prevent its being found by the applicant or any authorized person;

This does not refer to a defendant acting in a fiduciary capacity.


In this ground, the applicant must show that show that aside from the acts already mentioned, the defendant
has concealed, removed, or disposed of the property for the purpose of preventing its being found or taken by
either the applicant or an authorized person.

Fraud in contracting or performing an obligation


In actions against a person guilty of fraud in incurring or performing an obligation upon which the action is based;

Basis of application upon this ground are a) contracting the debt or incurring the obligation (dolo causante) or
b) in the performance of his obligation (dolo incidente).
Dolo Causante Fraud used to induce another to enter into a contract. Ex. Mr. X asked his rich friend Mr. Y,
to grant him a loan using a spurious land title as security. If Mr. Y later learns of the fraud, he may file an
action to recover the amount loaned and a writ of preliminary attachment.
Dolo Incidente Fraud employed by a party in the fulfillment of his obligation or after the obligation has
been contracted; this only obliges the person employing it to pay damages. Ex. Knowingly issuing a bouncing
check to pay debt may likewise be considered fraud in the performance of the obligation.
The fraud must relate to the execution of the agreement and must have been the reason which induced the
other party into giving consent.
A debt is fraudulently contracted if at the time of contracting it, the debtor has a preconceived plan or
intention not to pay.
Fraud is a state of mind and need not be proved by direct evidence but may be inferred from the
circumstances attendant in each case.

Removal or disposal of property with intent to defraud


In actions against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his
creditors;

2 requirements: a) A party has removed or disposed of his property, or is about to do so; and b) the acts in
letter a must be with intent to defraud the creditor.
A writ of preliminary attachment under this provision merely requires that it be an action against a
defendant who has removed or disposed of his property, or is about to perform such acts with the intent to
defraud his creditors.

Action against non-residents or on whom summons may be served by publication


In actions against non-residents not found in the Phils., or on whom summons is served by publication.

Here, the attachment is intendent to enable the court to acquire jurisdiction over the res by converting the
action in personam to an action in quasi in rem, and thus, justifying summons by publication and other modes
of summons.
It also applies to persons who need not be non-residents but on whom summons may be served by
publication. These persons include the following: a) resident defendants whose identity or whereabouts are
unknown; and b) resident defendants who are temporarily out of the country.
Summons by publication is not the only mode of summons available against defendants. Since they are
residents of the Philippines, they may be served by substituted service.
Moreover, where the defendant is a resident who is temporarily out of the Philippines, attachment of his/her
property in an action in personam is not always necessary in order for the court to acquire jurisdiction to hear
the case. Sec. 16, Rule 14 states that When an action is commenced against a defendant who ordinarily
resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also
effected out of the Philippines.

Common nature between these grounds: Allegations of fraud, concealment, or conversion.

Stages in the Implementation of the Writ


The court issues the order granting the application
The writ of attachment issues pursuant to the order granting the writ (writ of attachment is attached in the order)
The writ is implemented.
For the initial two stages, it is not necessary that jurisdiction over the person of the defendant be first obtained.
However once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant
for without such jurisdiction, the court has no power or authority to act in any manner against the defendant.
Prior or contemporaneous service of summons (Manner of attaching property)
The writ of attachment is implemented by the sheriff who shall make a levy on attachment pursuant to the writ issued.
However, under the Rules, the sheriff is not allowed to make a levy on attachment if such levy is not preceded or
contemporaneously accompanied by the service on the defendant within the Philippines of the following:
Service of summons;
Copy of the complaint;
Application for attachment;
Applicants affidavit and bond; and
Order and writ of attachment
The service mentioned is necessary to acquire jurisdiction over the defendant before the writ is implemented and to
comply with the due process requirements of the law.
Prior or contemporaneous service of summons shall not apply:
Summons could not be served personally or by substituted service despite diligent effort.
Defendant is a resident of the Philippines temporarily absent therefrom;
Defendant is a non-resident; and
The action is one in rem or quasi-in rem
How to prevent attachment: If the attachment has not yet been effected, the party whose property is sought to be attached may
prevent the attachment either:
By depositing with the court from which the writ was issued an amount equal to the value of the bond fixed by the
court in the order of attachment or an amount equal to the value of the property to be attached, exclusive of costs; or
By giving a counterbond executed to the applicant, in an amount equal to the bond posted by the latter to secure the
attachment or in an amount equal to the value of the property to be attached, exclusive of cost.
Duties of the sheriff:
The sheriff is required to proceed with the attachment without delay and with all reasonable diligence unless the
adverse party prevents the attachment. (See above)
The sheriff enforcing the writ is required to attach the property subject of said writ to await the judgment in the case
and its execution. He cannot attach every property of the adverse party but only so much of the property located in the
Philippines as may be sufficient to satisfy the applicants demand and not more.
The sheriff is also precluded from attaching any property exempt from execution.
After enforcing the writ, the sheriff must make a return thereon to the court from which the writ is issued, with a full
statement of his proceedings under the writ and a complete inventory of the property attached, together with any
counter-bond given by the party against whom attachment is issued, and serve copies thereof on the applicant.

Discharge of Attachment and filing of counterbond


A writ of attachment already enforced may be discharged in the following ways:
By filing a motion to discharge the attachment and making a deposit and counter-bond
Cash deposits and counterbond is filed with the clerk of court where the applications is made which acts as a
replacements of the property formerly attached, and just as the latter, may be levied upon after final
judgment.

After due notice and hearing, the court shall direct that the attachment be discharged.
Sec. 12 of Rule 57 does not authorize a discharged of the attachment ex parte. Also, mere posting of the
counter bond does not automatically discharge the writ of attachment.
Counterbond is different from a bond. A bond answers for the costs which may be adjudged to the adverse
party and the damages which he may sustain by reason of the attachment.

By filing a motion to set aside or discharge the attachment on other grounds without need for filing a counter-bond
based on the following grounds:
The attachment was improperly or irregularly issued or enforced;
The bond is insufficient;
The attachment is excessive (but in this case, the discharged shall be limited to the excess); and
The property is exempt from execution

The motion may be filed before levy, after levy or even after the release of the attached property. If the motion be made
on affidavits on the part of the movant but not otherwise, the attaching party may oppose the motion by counter-
affidavits or other evidence in addition to that on which the attachment was made.
After due notice and hearing, the court shall order the setting aside or the corresponding discharge of the attachment.
Effect of the discharge of the attachment
The property, or the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the
counter-bond, or the person appearing on his behalf.

Recovery of Damages
Damages may be awarded after notice and hearing on account of improper, irregular or excessive attachment.
Hence, even a party who loses his main case, but is able to establish a right to damages by reason of improper, irregular
or excessive attachment, may be entitled to damages.
When must application for damages be filed:
Before the trial
Before the appeal is perfected
Before the judgment becomes executory.

It shall be awarded after hearing and included in the judgment.


There must be notice to the attaching party and his surety or sureties.
The application must set forth the facts showing the applicants right to damages as well as the amount thereof.
If the judgment of the appellate court is favorable to the party against whom the attachment was issued, he must claim
damages during the pendency of the appeal.
Although the application is filed in the appellate court, the hearing of the application may be allowed by the appellate
court to be heard and decided by the trial court.
Should the bond or deposit given by the attaching party be insufficient to satisfy the award of damages, the party
against whom the attachment was issued may recover in the same action the damages awarded to him from any
property of the attaching party which is not exempt from execution.
When there is a wrongful attachment, the attachment defendant may recover actual damages even without proof that
the attachment plaintiff acted in bad faith in obtaining the attachment. However, if the attachment was not merely
wrongful but also malicious, the attachment defendant may recover moral damages and exemplary damages as well.
Any award of damages for the wrongful issuance of a provisional remedy should be recovered in the same case. The
recovery of damages cannot be had in a separate action.
Preliminary Injunction
Definition and Nature
Injunction - A judicial writ, process or proceeding whereby a party is ordered to do or refrain from doing a particular act.
Preliminary Injunction an order granted at any stage of an action or proceeding prior to the judgment requiring a party or a
court, agency or a person to refrain from a particular act or acts.

Preliminary Mandatory Injunction an order requiring the performance of a particular act or acts.
Nature of Preliminary Injunction
It is merely temporary, subject to the final disposition of the principal action.
It is not a cause of action in itself but merely a provisional remedy, an adjunct to the main suit.
It is an equitable remedy, resorted to by litigant to avoid injurious consequences which cannot be remedied under any
standard of compensation. He who must apply for it must; 1) do an equity; and 2) He who comes into equity must come
with clean hands
It rests upon an alleged existence of an emergency or of a special reason.
It is based solely on initial and incomplete evidence. It is not a final resolution or decision disposing of the case.
Issuance of preliminary injunction rests upon the sound discretion of the trial court. Its exercise cannot be interfered
with except with grave abuse of discretion.

Purpose:
To preserve the status quo or to prevent future wrongs in order to preserve and protect certain interests or rights during
the pendency of the action.
It is issued by the court to prevent a threatened or continued irreparable injury to the plaintiff before a judgment can be
rendered on the claim.

Status Quo Last actual, peaceful and uncontested status that precedes the actual controversy, that which is existing at the time
of the filing of the case.

Ex. The NAWASA cut off its water service to Xs residence for the latters alleged failure to pay his water bills for six months. X
claims that he had paid all his water bills as evidence by receipts. NAWASA claims the receipts to be fake and so refused to
restore its water service to Xs residence.

Answer: As a counsel for X, it is imperative to file an action for specific performance and damages against NAWASA and to
restore service, apply for a writ of preliminary mandatory injunction. Here, the action for specific performance and damages is
the main action and the preliminary mandatory injunction is the provisional remedy.

When writ is granted


- Granted at any stage of an action prior to the judgment
Against whom the writ is directed:
Party
Court
Agency or
Person

Classes of Preliminary Injunction

Preliminary Prohibitory injunction Preliminary Mandatory injunction


Commands the performance of some positive act to correct a
Commands one to refrain from doing a particular act
wrong in the past
The act had not yet been performed because it is restrained or The act has already been performed and this act has violated
prevented by injunction the rights of another.
Status Quo is preserved Status quo is restored and then preserved

Injunction Preliminary Injunction


As a provisional remedy and can only exist as an incident to a
A main action in itself
principal action
Seeks a judgment making the injunction permanent Seeks to preserve the status quo until the merits can be heard.
A judgment for a permanent injunction suit should be It is an interlocutory in nature. Hence, the order of the court
assailed by a timely appeal may be challenged by a petition for certiorari under Rule 65.

-The hearing on the application for issuance of a writ of preliminary injunction is separate and distinct from the trial on the merits
of the main case for injunction.
- A judgment in an action for injunction is immediately executory. It is enforceable after its rendition and shall not be stayed by
an appeal taken therefrom, unless otherwise ordered by the trial court.

Acts subject to the main action for injunction:


Prying into the privacy of anothers residence
Meddling with or disturbing the private life or family relations of another
Intriguing to cause another to be alienated from his friends; and
Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or
other personal condition.
Action for injunction vs Petition for declaratory relief
Action for injunction Petition for Declaratory Relief
Ordinary civil action Special civil action
Seeks a declaration of rights or duties or determination of any
question or validity arising under a statute, executive order or
Seeks to conjoin or compel a party to perform a certain acts. regulation, ordinance or any other governmental regulation,
or under a deed, will contract or other written instrument
which under his rights are affected, and before breach or
violation.

Preliminary prohibitory injunction vs Petition for prohibition


Preliminary prohibitory injunction Petition for prohibition
Not an independent action A special civil action and an independent action
Not against a party litigant but against a tribunal, corporation,
Generally directed against a party litigant, although can also
board, officer or person exercising judicial, quasi-judicial or
be directed against a court, agency or person
ministerial function
Applies even if there is no issue of jurisdiction, grave abuse Applies when the tribunal, etc. are without or in excess of its
of discretion, or other similar acts which amount to lack of jurisdiction, or with grave abuse of discretion amounting to
jurisdiction lack of jurisdiction.
Basis is the need to protect an existing and clear legal right
that faces a threatened violation by a party, court, agency or Basis of prohibition is a jurisdictional issue.
person

Preliminary mandatory injunction vs. Petition for Mandamus


Preliminary mandatory injunction Petition for Mandamus
A provisional remedy, not an independent action A special civil action and a main action
Directed against a tribunal, corporation, board, officer or
Generally directed against a party litigant although can also
person exercising judicial, quasi-judicial or ministerial
be directed against a court, agency or person
function
Seeks a judgment commanding a tribunal, corporation, board,
officer or person to perform a duty which the law specifically
Issued to require to perform an act in order to restore the last enjoins as a duty either because there was an unlawful
peaceable and uncontested status preceding the controversy neglect of such duty or a person was unlawfully excluded
from the use and enjoyment of an office to which such person
is entitled.

Court that issues a writ of preliminary injunction


- Granted by the court where the action or proceeding is pending. If the action is pending in the CA or SC, it may be issued by
said court or any member thereof.
General Rule: A writ of preliminary injunction should not issue to take the properties out of the possession of one party to place
it in the hand of another.
Exception:
A) A possessor deprived of his possession through forcible entry and unlawful detainer may within 5 days from the filing of the
complaint, apply, through the proper motion, for the issuance of writ of preliminary mandatory injunction to restore him in his
possession.
Since forcible entry and unlawful detainer cases are cognizable by the Municipal Trial court, the preliminary mandatory
injunction sought for in either action shall be issued by the said court.
B) Plaintiff may within 10 days from the perfection of the appeal to the RTVC in an unlawful detainer or forcible entry case, file
a motion for the court to issue a writ of preliminary mandatory injunction to restore him in his possession. Since the appealed
case is pending in the RTC, it is this court which shall issue the writ of preliminary injunction.
Where a petition for certiorari is pending in the CA, the writ shall be issued by the CA becayse ut us ub this court where the
principal action for certiorari is pending.
If the main action is one for injunction, an inferior court cannot grant the preliminary injunction since action for injunction is one
incapable of pecuniary estimation, hence, cognizable by RTC.

Requirements and Procedure for Issuance


Grounds for issuance of Preliminary Injunction: (EnCoD)
Applicant is entitled to the relief demanded; or
Commission, continuance or non performance of the act complained of would work injustice to the applicant; or
Party, court, agency, or a person is doing threatening, or is attempting to do, or is procuring or suffering to be done,
some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding.
Grant of Preliminary Injunction: (Whether mandatory or prohibitory)
The applicant must have a clear and unmistakable right, that is, a right in esse;
There is material and substantial invasion of such right
There is an urgent need to issue the writ in order to prevent irreparable injury;
No other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury.

Existence of a clear and unmistakable right; as pre conditioned for the issuance of the writ of injunction
The writ is issued upon the satisfaction of the two requisites:
Existence of a right to be protected;
Acts which are violative of said right.
In an absence of a clear legal right, the issuance of the injunctive relief constitutes grave abuse of discretion.
Injunction is not designed to protect contingent or future rights. Where the complaints right is doubtful or disputed,
injunction is not proper.
The possibility of irreparable damage without proof of actual existing right is not a ground for an injunction.
Examples where there is no legal right existing:
To restrain the execution of a final and executory decision.
Expired service contract
Quantum of evidence required:
The plaintiff need only show that they have an ostensible right, hence, need not be based on a conclusive and complete
evidence.
Hearing, is also required before the court can issue an injunctive writ where both sides can introduce their evidence.
It is necessary to show that the right exist at least tentatively.
Although general rule is that a sampling of evidence is required to be submitted during the hearing on the motion for
preliminary injunction, there are also instances when the writ of preliminary injunction can be issued based on the
verified application, provided there is notice and hearing.
Requisites for issuance of a writ of preliminary injunction or a Temporary Restraining Order
There must be a verified application. Absence of verification makes the application insufficient both in form and
substance.
The applicant must establish the 1) existence of a clear and unmistakable right that must be protected; and 2) Urgent
and paramount necessity for the writ to prevent serious damage
The applicant must post a bond, unless exempted by the court. This shall be in an amount to be fixed by the court and
executed in favor of the party enjoined to the effect that the applicant shall pay to the party enjoined all damages which
he may sustain by reason of the preliminary injunction or the restraining order if the court should finally decide that the
applicant was not entitled to the writ or order.
As to writ of preliminary injunction, the court must conduct a hearing. The writ shall not be issued without a prior
notice and hearing.
The application for TRO shall be acted upon only after all parties are heard in a summary hearing which shall
be conducted within 24 hours after the sheriffs return of service and/or the records are received by the
branch selected by raffle and to which the records shall be transmitted immediately.
Purpose of the injunction bond
To protect the defendant against loss or damage by reason of the injunction in case the court finally decides that the
plaintiff was not entitled to it.
The applicant for a writ of preliminary injunction may however, be exempted by the court from posting a bond as
according to Sec.4(b), Rule 58.
The party filing a bond shall serve a copy of such bond on the other party.
The other party may take exceptions or object to the sufficiency of the bond, or the surety or sureties thereon.
The injunction shall be dissolved if the applicants bond is found to be insufficient in amount, and a bond sufficient in
amount with sufficient sureties is not filed.
Injunction shall be granted ore restored, if the bond of the adverse party if found to be insufficient in amount and a
bond sufficient in amount is not filed.

Irreparable If it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in court of
law or where there is no standard by which their amount can be measured with reasonable accuracy.
Rule on Prior or Contemporaneous Service of Summons
Notice of application for writ of preliminary injunction or TRO shall be preceded or contemporaneously accompanied
by:
Service of summons
A copy of the complaint or initiatory proceeding
Applicants affidavit and bond upon the adverse party
Except:
Where the summons could not be served personally or by substituted service despite diligent efforts;
The adverse party is a resident of the Philippines temporarily absent therefrom; or
Is a nonresident thereof
Rule on Prior or contemporaneous Service of summons; When not required
An application for a writ of preliminary injunction or temporary restraining order may be included in a complaint or
any initiatory pleading
Notice and hearing:
No preliminary injunction shall be granted without hearing and prior notice to the party or persons to be enjoined. It cannot be
issued ex parte.
2.5. Temporary Restraining Order
TRO- Issued to preserve the status quo until the hearing of the application for a writ of preliminary injunction because injunction
cannot be issued ex parte.
TRO vs Writ of preliminary injunction
TRO Writ of preliminary injunction
Can be granted ex party if it shall appear from the facts
shown by affidavits or by the verified application that great
Cannot be granted without notice and hearing
or irreparable injury would result to the applicant before the
matter can be heard on notice.
Restrains or required the performance of particular acts Maintains the status quo
No definite date of effectivity but the trial court, the CA, the
Effectivity does not exceed 20 days, including the first 72
Sandiganbayan, or the CTA that issued the writ of
hours (RTC); Does not exceed 60 days (CA); Indefinite until
preliminary injunction shall decide the main case or petition
further orders (SC)
within 6 months from the issuance of the writ

TRO issued by executive judge for multi sala courts/


TRO issued by ordinary judge
ordinary judge for single-sala courts
Good for 72 hours Good for 20 days including the first 72 hours
Issued before raffling Issued after raffling
Issued ex parte Issued after summary hearing

When there is an extreme urgency or great or irreparable injury:


The application for a TRO shall be acted upon only after all parties are heard in a summary hearing. This hearing shall be
conducted within 24 hours after the sheriffs return of service and/or the records are deceived by the branch selected by raffle.
Where the case is raffled, the period within which to conduct a summary hearing in an application for TRO is not 24 hours after
the case has been raffled but 24 hours after the records are transmitted to the branch to which it is raffled.
Preliminary injunction may be granted even without notice on the following grounds:
If great or irreparable injury would result to the applicant before the matter can be heard on notice. The court may issue
TRO effective only for 20 days from notice on the party sought to be enjoined.
Within the said 20 day period, the court must order said party or person to show cause why the injunction
should not be granted.
Also, within the same period, the court shall determine whether or not the preliminary injunction shall be
granted and then issue the corresponding order.
The applicant must file a bond unless exempted by the court. The rule grants discretion to the court on the
matter of posting a bond. This grant of discretion to acquire bond before granting a temporary restraining
order, is not intended to give the judge the license to exercise such discretion arbitrarily in prejudice of the
defendant.
If it appears that the enjoined party will not suffer any damage, the judge must require the applicant to post a
bond, otherwise, the courts could become instruments of oppression and harrrasment.
If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the judge may
issue ex parte a TRO effective only for 72 hours from issuance.
Its effectivity may be extended after conducting a summary hearing w/in 72 hour period until the application
for preliminary injunction can be heard.
If application for preliminary injunction is denied or not resolved within said period, the TRO is deemed
automatically vacated.
The effectivity of TRO is not extendible. There is no need for judicial declaration to that effect. However,
extending or renewing the TRO is prohibited only if the extension or renewal is based on the very same
ground upon which the TRO order was originally issued. If another basis or ground should exist, an extension
or renewal of order could be made.
Where there is an omission to fix the period, the 20 day period is deemed incorporated in the order.
There is also a need to immediately comply with the requirement on service of summons and other
documents as provided for in the preceding section.
When the court is a multi-sala court, the TRO is not to be issued by any other judge other than the executive
judge of said court.
Effectivity of TRO
Issued by Effectivity
RTC Twenty days including the original seventy two(72) hours
Sixty (60) days from notice to the party sought to be enjoined
CA or member thereof 60 days is non extendible.
A second TRO by CA is a patent nullity.
SC or member thereof Indefinite until further orders

Status Quo order is not a TRO. It is more in the nature of a cease and desist order, since it neither directs the doing or undoing
of acs as in the case of prohibitory or mandatory injunctive relief. It has no specified duration and does not specifically direct the
performance of an act. It lasts until it is revoked. Its duration may even be subject to agreement of the parties. No bond is
required for its issuance.
- It is resorted to when the projected proceedings in the case made the conservation of the status quo desirable
or essential, but the affected party neither sought such relief nor did the allegations in his pleading sufficiently make out a case
for a TRO.
2.6. Prohibition on injunction under special laws
In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases involving government infrastructure
projects:
To enabler the State to ensure expefditious and efficient implementation and completion of governmental infrastructure
projects, avoid unnecessary increase in construction, maintenance and or repair cost and immediately enjoy the social
and economic benefits therefrom.
R.A. 8975, Sec.3 specifically provides No court except SC, shall issue any TRO, preliminary injunction or preliminary
mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether
private acting under the government direction to restrain, prohibit or compel the following acts:
Acquisition, clearance and development of right-of-way and or site or location of any national government project
Bidding or awarding of contract of the national government as defined in Sec.2 hereof
Commencement, prosecution execution, implementation, operation of any such contract or project
Termination or rescission of any such contract/project
The undertaking or authorization of any other lawful activity necessary for such contract/project

This prohibition shall not apply when the matter is extreme urgency involving a constitutional issue, such that, unless a
TRO is issued, grave injustice and irreparable injury will arise.
The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the
government if the court should finally decide that the applicant was not entitled to the relief sought.
A judge who issue a TRO or writ of injunctions, in violation of this special law shall have the penalty of suspension of
atleast 60 days without pay in addition to any civil and criminal liabilities he or she may incur.
Cases:
Davao Light & Power Co, Inc. v. CA (December 29, 1991)
Sofia Torres, et. al. v. Nicanor Satsatin (November 25, 2009)
Lim v. Spouses Lazaro (July 3, 2013)
Buyco v. Baraquia (December 21, 2009)
Medina v. Greenfield Development Corp. (G.R. no. 140228, November 19, 2004)

Receivership
3.1. What is a Receiver?

Receiver A person appointed by the court in behalf of all the parties to the action for the purpose of preserving and conserving
the property in litigation and prevent its possible destruction or dissipation, if it were left in the possession of any of the parties.

Purpose: To protect and preserve the right of the parties during the pendency of the main action, during the pendency of an
appeal, or as an aid in the execution of a judgment as when the writ of execution has been returned unsatisfied.

Nature of Receivership:
The property or properties being placed under the receivership are those involved in the litigation. It does not refer to
the receivership authorized under the banking laws and other rules or laws.
Receivership, like injunction, may be the principal action itself or just an ancillary remedy.
It is also aimed at the preservation of, and at making more secure existing rights. It cannot be used as an instrument for
the destruction of those rights.

General Rule: Neither party to a litigation should be appointed receiver without the others consent because a receiver ought to be
an indifferent person between the parties and should be impartial and disinterested.

Who may grant receivership: Receivership may be granted by the court in which the action is pending, by the Court of Appeals or
the Supreme Court, or any member thereof.

When may receivership be applied: This provisional Remedy may be resorted to during the pendency of an appeal or even after
the judgment has become final and executory.

Note:
The appointment of a receiver is not a matter of absolute right. It depends upon the sound discretion of the court and is
based on facts and circumstances of each particular case.
A receiver is not an agent or representative of any party to the action but a real party in interest, but he cannot file a
case without the consent of the receiver court.
He is an officer of the court exercising his functions in the interest of neither the plaintiff nor defendant but for the
common benefit of all the parties in interest.
He performs his duties subject to the control of the Court, and every question involved in the receivership may be
determined by the court taking cognizance of the receivership proceedings.
There must be a clear showing of necessity therefor in order to save the plaintiff from grave and irremediable loss or
damage.
It is only when circumstances so demand, either because there is imminent danger that the property sought to be placed
in the hands of a receiver be lost or because they run the risk of being impaired, endeavouring to avoid that the injury
thereby caused be greater than the one sought to be avoided.

3.2. Grounds for the grant of receivership


Upon verified application, one or more receivers of the property which is the subject of the action may be appointed by the court
where the action is pending in the following cases: (IFAC)
Applicant has an interest in the property or fund subject of the proceeding and such property is in danger of being lost
or materially injured unless a receiver is appointed;
In foreclosure of mortgage, when the property is in danger of being wasted or dissipated and that its value is probably
insufficient to discharge the mortgage debt or that it has been agreed upon by the parties;
After judgment, to preserve the property during the pendency of an appeal or to dispose of it accdg. to the judgment or
to aid execution;
When appointment of receiver is the most convenient and feasible means of preserving, administering or disposing of
the property in litigation.

3.3. Denial of application for receivership


If the appointment sought or granted is without sufficient cause.
Adverse party files a sufficient bond to answer for damages.
Bond posted by the applicant for grant of receivership is insufficient
Bond of the receiver is insufficient.

3.4. Appointment of Receiver


A verified application must be filed by the party applying for the appointment of a receiver
The applicant must have an interest in the property or funds subject of the action; that he must show that the property or
fund is in danger of being lost, removed, materially altered, wasted or dissipated or there is a need to preserve or
administer the property, or that all the grounds justifying the appointment of a receiver exist;
The application must be with notice and set for hearing. A hearing is necessary because the grounds for a receivership
require the resolution of factual issues.
Before issuing the appointment of a receiver, the court shall require the applicant to post a bond executed to the party
against whom the application is presented.
Before entering upon his duties, the receiver must be sword to perform his duties faithfully and shall file a bond.

3 Kinds of Bonds in receivership:


Applicants bond The bond required before the appointment of a receiver.
Receivers bond The bond required of a receiver before entering upon his duties.
Additional Bond One which the court may require, at any time after the appointment of the receiver, as further
security for damages that may be sustained by the other party by reason of such appointment.
Note:
The amount of bond shall be fixed by the court.
The undertaking of the bond is to effect that the applicant will pay such party all damages the latter may sustain by
reason of the appointment of the receiver in case the applicant shall have procured such appointment without sufficient
cause.

3.5. General Powers of Receiver


Powers of the receiver include: (BTRC2-MPD2I)
Bring and defend, in such capacity, 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 the
receiver;
Compound for and compromise the same;
Make transfers;
Pay outstanding debts;
Divide the money and other property that shall remain among the persons legally entitled to receive the same;
Generally to 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.
Suit against a receiver:
No action may be filed against a receiver without leave of the court which appointed him.
Liability for refusal or neglect to deliver property to receiver:
A person who refuses or neglects to deliver property within his control and which is the subject of the action to the
receiver may be punished for
Contempt and
Liable to the receiver for the money or the value of the property plus damages.

Termination of receivership; Compensation of receiver:


The court shall allow the receiver such reasonable compensation which is to be taxed as costs upon the defeated party or
apportioned as justice requires:
On motion of either party or motu proprio
Upon determining that the necessity for a receiver no longer exists, shall
After due notice to all parties and a
Hearing
Settle the accounts of the receiver
Direct the delivery of the funds or property in his possession to the person adjudged entitled thereto and
Order the discharge of the receiver.

Judgement to include recovery against sureties:


Where the damages sustained were not by reason of the appointment of the receiver but to his own malfeasance, the
recovery shall be against the receivers bond and may be recovered in a separate action.

4. Replevin
4.1. Definition and Nature

Replevin The provisional remedy seeking for possession of personal property prior to the determination of the main action for
the recovery thereof.

Nature:
Replevin is both a form of principal remedy and of provisional relief. It may refer either to the action itself, or to the
provisional remedy that would allow the plaintiff to retain the thing during the pendency of the action and to hold it
pendente lite.

As a principal action its ultimate goal is to recover the personal property capable of manual delivery wrongfully
detained by a person. Hence, it is a suit in itself.

Ex. The plaintiff claims that the defendant is in possession of his car without lawful cause, he may file an action for
replevin.

As a provisional remedy, it happens when a party applies for the delivery of the property subject of the action during its
pendency.
Ex. In the same example above, while the action is pending, the plaintiff may ask the court to allow him to have
possession of the car in the meantime. He may justify his application, for instance, by showing that he uses the same as
an economic tool and the continued possession of the car by the defendant deprives him of a vital source of income.
Another example, it is held that a foreclosure under a chattel mortgage may properly be commenced only once there is
default on the part of the mortgagor of his obligation secured by the mortgage. The replevin, in the instant case, has
been sought to pave the way for the foreclosure of the object covered by the chattel mortgage.

The primary relief sought therein is the return of the property in specie wrongfully detained by another person.

It is in the nature of a possessory action and the applicant who seeks the immediate possession of the property need not
be the holder of the legal title to the property. It is sufficient that at the time he applied for a writ of replevin he is found
to be entitled to a possession thereof.

When may be applied for: A writ of replevin must be applied for at the a) commencement of the action or b) at any time before
the defendant files his answer, for which reason there can be no replevin before the appellate court.

Writ of Replivin vs. Preliminary attachment

REPLEVIN ATTACHMENT
The purpose is to have the property put in the custody of the
The purpose is to recover personal property capable of
court to secure the satisfaction of the judgment that may be
manual delivery from the defendant
rendered in favor of the plaintiff at some future time.
The property either belongs to the plaintiff or one over which The property does not belong to the plaintiff but to the
the plaintiff has a right of possession defendant.

May be sought only when the principal action is recovery of Available even if recovery of property is only incidental to
personal property. the relief sought.

Can be sought only when defendant is in actual or May be resorted to even if the property is in possession of a
constructive possession of the property. third person.

Cannot be availed of when property is in custodia legis Can be availed of even if property is in custodia legis.

Available before defendant answers Available from commencement but before entry of judgment
Bond is double the value of the property Bond is fixed by the court
Extends to all kinds of property whether real, personal or
Extends only to personal property capable of manual delivery
incorporeal
Attachment to recover possession of personal property
Available to recover personal property even if the same is not unjustly detained presupposes that the same is being
being concealed, removed or disposed of. concealed, removed or disposed of to prevent its being found
or taken by the applicant.

Note:
There can be no replevin and preliminary attachment in the same case because the purposes are different.
Rule 57 (Writ of Preliminary Attachment) is for security, Rule 60 (Replevin) is for recovery of possession.
In injunction, the bond is the amount fixed by the court, unless the court exempts the applicant from posting a bond. In
receivership, the bond is also fixed by the court.

4.2. Requirements and Procedure for the Issuance


File an application at the commencement of the action or at any time before the defendant answers.

Application must contain an affidavit


The Affidavit must show that:
Applicant is the owner of the property claimed particularly describing it, or is entitled to the possession thereof,
Property is wrongfully detained by the adverse party
Property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seined under a writ of
execution or under custodial egis; and
Actual market value of the property.

Applicant must give a replevin bond, executed to the adverse party and double the value of the property.

Purpose of the bond:


A replevin bond is simply intended to indemnify the defendant against any loss that he may suffer by being compelled
to surrender the possession of the disputed property pending the trial of the action.
The same may be answerable for damages, if any, when judgment is rendered in favor of the defendant or the party
against whom a writ of replevin was issued and such judgment includes the return of the property to him.
Where the award of damages decreed by the trial court was based on Art. 19 (Good Faith) and 20 (Negligence) of the
Civil Code, and not on the deprivation of personal properties subject to replevin bond, recourse on the bond for the
payment of damages is not proper.
If the judgment was that the defendant is entitled to the property, but no order was made requiring the plaintiff to return
it or assessing damages in default of a return, it was declared that until judgment was entered that the property should
be restored, there could be no liability on the part of the sureties.

Section 3. Order
Upon filling of the affidavit and the approval of the bond, the court shall issue an order and the corresponding writ of replevin
describing the personal property and requiring the sheriff to take such property into his custody.

Note:
The order is issued without summary hearing unlike in other provisional remedies.
The dismissal of the replevin case for failure to prosecute results in the restoration of the parties status prior to
litigation, as if no complaint was filed at all. Hence, the writ of seizure, which is merely ancillary in nature, became
functus officio and should have been lifted.

Section 4. Duty of the Sheriff


Serve a copy of the order together with a copy of the application, affidavit and bond to the adverse party;
Take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody
Demand delivery of the property if the property is concealed in a building or enclosure, and if it be not delivered, cause
the building or enclosure to be broken open and take the property into his possession;
After taking possession, keep the property in a secure place
The property is not to be immediately delivered to the applicant because within 5 days from the taking of the property,
the sheriff shall wait for the move of the adverse party.
Where the adverse party did not object to the other partys bond nor posted a redelivery bond to recover the possession
of the property taken under the writ of replevin, the sheriff is under obligation to deliver the property to the applicant.

Note:
If for any reason, the property is not delivered to the applicant, the sheriff must return it to the adverse party.

4.3. How to seek return of the property


At any time before the delivery of the property to the applicant, the adverse party may require the return thereof. The
adverse party may object to the sufficiency of the bond or of the sureties thereon.

For the adverse party to effect the return of his property under the custody of the sheriff, the following must be met:
He should post a redelivery bond in an amount double the value of the property
The bond is executed to the applicant
He should serve a copy of the bond to the applicant
He must perform the above acts before the delivery of the property to the applicant. This means within 5 days form the
taking of the property by the sheriff
The bond is sufficient.

4.4. When property is claimed by third person


If the property taken is claimed by a third person and make an affidavit of his title or right to the possession thereof and
serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the
applicant, the sheriff shall not be bound to keep the property under replevin or deliver it to the applicant UNLESS the
applicant on demand of said sheriff, shall file a bond approved by the court to indemnify the third party claimant in the
sum not less than the value of the property.
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.
A claim on the indemnity bond should be filed within 120 days from posting of such bond.
A 3rd party claimant may vindicate his claim to the property, and the applicant may claim damages against such 3rd
party, in the same or separate action.

Remedies available to a third person not party to the action but whose property is the subject of execution:
TERCERIA
By making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title.
The affidavit must be served upon the sheriff and the attaching party (Sec. 14, Rule 57).
Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under attachment except if
the attaching party files a bond approved by the court.
The sheriff shall not be liable for damages for the taking or keeping of the property, if such bond shall be filed.
EXCLUSION OR RELEASE OF PROPERTY
Upon application of the third person through a motion to set aside the levy on attachment, the court shall order a
summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of
his duties in the execution of the writ of attachment.
The court may order the sheriff to release the property from the erroneous levy and to return the same to the third
person.
In resolving the application, the court cannot pass upon the question of title to the property with any character of
finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not.
INTERVENTION
This is possible because no judgment has yet been rendered and under the rules, a motion for intervention may be filed
any time before the rendition of the judgment by the trial court (Sec. 2, Rule 19).
ACCION REINVINDICATORIA
The third party claimant is not precluded by Sec. 14, Rule 57 from vindicating his claim to the property in the same or
in a separate action.
He may file a separate action to nullify the levy with damages resulting from the unlawful levy and seizure. This action
may be a totally distinct action from the former case.

Section 9. Judgment
The court shall determine who has the right of possession to and the value of the property and shall render judgment in
the alternative for the delivery to the party entitled to the same, or for its value in case delivery cannot be made, and
also for damages that may be proven by the parties, with costs.

Section 10. Judgment to include recovery against sureties


Plaintiff who obtains possession of the personal property by a writ of replevin does not acquire absolute title thereto,
nor does not acquire such title by re-bonding the property, as they only hold the property subject to the final judgment
in the action. A buyer of such property also does not acquire title thereto but also holds the property subject to the
results of the suit.

Surety liability under the replevin bond should be included in the final judgment to prevent duplicity of suits or
proceedings.

Proceedings of Section 20 of Rule 57 are applicable not only to the replevin bond of the plaintiff but also to the
redelivery bond posted by the defendant for the lifting of the writ.

Note: A writ of replevin may be served anywhere in the Philippines.

Cases:
Commodities Storage & Ice Plant Corp. v. CA (June 19, 1997)
BA Finance Corp. v. CA (July 5, 1996)
Distilleria Washington, Inc. v. Court of Appeals, 331 Phil. 622
Twin Ace Holdings Corporation v. Rufina and Company (June 8, 2006)
Susan Lim-Lua v. Danilo Lua (June 5, 2013)