1. Where the judgement turns out to be After a writ of attachment has been enforced, the party
Incomplete or Conditional whose property has been attached, or the person
2. Judgement is Novated by subsequent appearing on his behalf, may move for the discharge of
agreements of the parties the attachment wholly or in part on the security given.
3. Equitable grounds like a change in situation
of the parties which makes execution Under sec. 12 of Rule 57, there are two procedures in
inequitable (Supervening Facts Doctrine) discharging the PA.
4. Execution is Enjoined (Petition for relief from
First, if a writ of attachment has not yet been enforced,
judgement or annulment of judgement with
the party whose property is sought to be attached may
TRO or writ of preliminary injunction
prevent the attachment either (a)by depositing with the
5. Judgement becomes Dormant, except support
court from which the writ was issue; or (b)by giving a
which can be executed by motion
counterbond executed to attaching party, equal to the
6. Execution is Unjust or Impossible.
bond fixed by the court in the order of attachment or
7. Where the judgement has already been
to the value of the property attached exclusive of cost.
executed by the Voluntary compliance thereof
No notice and hearing is required. Thus the writ of
the parties attachment may by discharge ex parte
8. When refusal to execute has become
Imperative in the higher interest of justice Second, of the attachment has already been enforced,
9. When the execution is sought against the party whose property has been attached, or the
Property exempt from execution under sec. 13 person appearing on his behalf may discharge the
Rule 39. attachment by:
Execution shall issue on motion. Hence, a judge may a. Filing a motion to discharge the attachment.
not order execution of judgement in the decision b. By Cash deposit with the court from which the
itself. In fact, even in judgements which are attachment is issued or executing a counter
immediate and executory, there “must be a motion to bond in favour of the attaching part equal to
that effect and a hearing called for the purpose. And the amount fixed by the court in the order of
also under the SC circular No. 24-94, a motion for attachment, exclusive of the cost.
issuance of writ of execution must contain a notice to c. A notice of the depot shall forthwith be served
the adverse party. Hence, the motion for execution on the attaching party
cannot be issued ex-parte. d. The court shall, after due notice and hearing
order the discharge of the attachment.
4. & 7. It depends,
Thus, in this procedure the mere posting of the
There are three modes of appealing a judgement or
counterbond does not automatically discharge the writ
final order of the RTC.
of attachment. It is only after due NOTICE and
In a Petition for Review on Certiorari under Rule HEARING, and after the judge has ordered the
45, the appeal raises purely question of law from a discharge of attachment that the same is properly
judgement or final order or resolution of the RTC in its discharge.
original jurisdiction, the CA, the Sandigan Bayan, and
Attachment may likewise be discharge without the
the CTA en banc.
need for filing a counter-bond. This is possible when
In an Ordinary Appeal under Rule 41, the appeal the party whose property has been attached files a
raises the questions of fact or mixed questions of fact motion to set aside or discharge the attachment and
and law decided by the RTC in its original jurisdiction. during the hearing the motion, he proves that:
The Appeal to the CA in cases decided by the RTC in 1. The same was improperly or irregularly issued
its original jurisdiction shall be taken by filing a notice or enforced (sec. 13) as where there is no
of appeal with the court which rendered the judgement ground for attachment, or the affidavit and/or
the bond filed therefore are defective or 2. Respondent acted without or excess of
insufficient (sec.3); jurisdiction, or with GAD amounting to
2. That the bond is insufficient lack/excess of jurisdiction
3. If the attachment is excessive, the discharge 3. There must be no appeal or other plain, speedy
shall be limited to the excess. (sec. 13) and adequate remedy.
4. Debtor has posted a Counter-bond or has 4. Accompanied by a certified true copy of the
made the requisite cash deposit. judgement or order subject of the petition,
5. Property attached is Exempt from execution. copies of all pleadings and documents relevant
and pertinent thereto, and sworn certificate of
8. No, the case will not prosper. non-forum shopping under rule 46.
Under the rules, certiorari under Rule 65 is the As a general rule, an order denying a motion of dismiss
appropriate remedy for the parties adversely affected of being merely interlocutory, cannot be the basis of a
any (TBO) tribunal, board, or officer exercising judicial petition for certiorari. The remedy of aggrieved party is
or quasi-judicial functions when such TBO has acted to file and answer and to interpose as defences the
S/E of its jurisdiction or with GAD amounting to L/E objections raised in his motion to dismiss, proceed to
of jurisdiction, there being no appeal or any other trail and in case of an adverse decision, to elevate the
plain, speedy and adequate remedy in ordinary course entire case by appeal in due course. However, as
of law. As a General Rule, a Motion for exception to the rule, since the issue is jurisdiction,
Reconsideration/New trial is an essential precondition and orifical action for certiorari may be directed against
for the filing of a petition for CPM. In the instant case, an interlocutory order of the lower court prior to an
there was no showing that the defendant has resorted appeal from the judgement. Thus, a petition for
to application of Motion for Reconsideration before certiorari may be filed to assail an interlocutory order,
going to the SC. Therefore, the case will not prosper. if it issued without or excess of jurisdiction, or in GAD
amounting to lack/excess of jurisdiction.
However, this rule is not absolute, jurisprudence has
recognized several exceptions, in which certiorari may
lie even if the Motion for Reconsideration/New trial has
not pre-conditionally filed such as follows, to wit: (LP- 9. The denial is not correct,
PeRUM-DICE)
In Expropriation proceedings, the private owner is
1. Where the proceedings in the Lower court are deprived of property against his will.
a nullity for lack of due process.
2. Where the order is a Patent nullity, as where Upon filing of the complaint, and after due notice to the
the court a qou has no jurisdiction. defendant, the implementing agency/plaintiff shall
3. Where the subject matter of the action is have the right to take or enter upon the possession of
Perishable. the real property involved upon as follows, to wit:
4. Where the question Raised in the certiorari
1. If the expropriator is a National Government,
proceeding have been duly raised and passed
with a scheme of immediate payment should
upon by the lower court or are the same as
be 100% of the value of the property based on
those raised and passed upon in the lower
the current relevant zonal valuation of the BIR
court.
and the value of the improvements and/or
5. Where there is an Urgent necessity for the
structures as determine under sec. 7 of RA.
resolution of the question.
8974
6. When a Motion for reconsideration would be
2. If the expropriator is a LGU, the payment
useless should be only 15% of the fair market value
7. Where petitioner is Deprived of due process
based on the tax declaration required to be
8. Where the Issue raised is one purely of law
deposited with the authorized government
or where public interest is involved. depositary.
9. Where, in Criminal case, relief form an order
of arrest is urgent and the granting of such Once, the preliminary deposit has been made, the
relief by the trial court is improbable. expropriator is entitled to a writ of possession as a
10. Where the proceeding was Ex parte or in matter of right, and the issuance of such writ becomes
which the petitioner has no opportunity to ministerial on the part of the trial court.
object.
In the case at bar, since the NGCP has paid 100% or
Certiorari is a prerogative writ, it is never demandable the total value of the property, it is now entitled to a
as a matter of right and never issued except in the writ of possession as a matter of right. Hence, the court
exercise of judicial discretion. He who seeks a writ of cannot refuse the issuance of writ as now it is
certiorari must apply for it only in manner and strictly ministerial duty to issue the writ.
in accordance with the provision of the law and the
Rules. In expropriation proceedings due process must be
strictly followed.
Requisites of certiorari
In expropriation, the private owner is deprived of
1. Respondent tribunal, board or officer is property against his will. Withal, the mandatory
exercising judicial and quasi-judicial function requirement of due process ought to be strictly
followed, such that the State must show, at the
minimum, a genuine need, an exacting public purpose 2. There is MATERIAL and SUBSTANTIAL
to take private property, the purpose to be specifically INVASION of such right.
alleged or least reasonably deductible form the 3. There is an URGENT NEED for the writ to
complaint. (Vda. De Ouano vs. Republic, GR 168770 prevent irreparable injury to the applicant.
Feb. 9 2011, 642 SCRA 384) 4. NO other SPEEDY AND ADEQUATE REMEDY
exist to prevent the infliction of irreparable
injury.
10. It depends, whether the ground falls in the special The issuance of writ of PI is addressed to the sound
civil action of quo warranto or election protest. discretion of the trial court, conditioned on the
existence of clear and positive right of the applicant
If the basis is that the occupant is disqualified from
which should be protected. Moreover, extreme caution
holding the office by reason of ineligibility or disloyalty
must be observed in the exercise of such discretion. It
the proper remedy is the special civil action of quo
should be granted only when the court is fully satisfied
warranto, such denial of motion to dismiss qou
that the law permits it and the emergency demand it.
warranto is proper
The very foundation of the jurisdiction to issue a writ
However, if it challenges the right of a person to hold of injunction rest in the existence of a cause of action
office on the ground of regularities in the conduct of and in the probability of reparable injury, inadequacy of
elections for said office then Election protest will lie. pecuniary compensation and the prevention of
multiplicity of suit.
Note: where there is usurpation or intrusion into an
office, quo warranto is the proper remedy. But where Negative answer – where the fact are now show to bring
the respondent, without claiming any right to an office, the case within these conditions, the relief of injection
excludes the petitioner therefrom, the remedy Is should be refuse.
mandamus, not quo warranto.
Requisites for the ISSUANCE of PI