patino provrem rev

REMEDIAL LAW REVIEW | 2011 | Atty. Guevarra

Provisional Remedies | Lifted from Riano, Ateneo and Beda Bar Ops Reviewers 1 | P a t i o , E r i c a

NATURE OF PROVISIONAL REMEDIES Provisional Remedies, defined: - Writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect his rights and interests therein, pending rendition, and for the purpose of ultimately affecting a final judgment in the case. - They are temporary, preliminary, auxiliary and ancil lary remedies available to a litigant for the protection and preservation of his rights while the main action is pending. Provisional , defined: Constituting temporary measures availed of during the pendency of the action. Remedy, defined: Means to enforce ones rights or redress of wrong. Ancil lary: Incidents in and dependent on the result of the main action. (Adjunct to the main action) Provisional Remedies Available Under the Rules of Court 1. Rule 57: Preliminary Attachment 2. Rule 58: Preliminary Injunction 3. Rule 59: Receivership 4. Rule 60: Replevin 5. Rule 61: Support Pendente Lite Note: List is NOT exclusive Note: These provisional remedies are available in criminal cases (Rule 127), and in some special civil actions and special proceedings. Other Provisional Remedies: A. Issued by the Family Court 1. Temporary custody of minor children 2. Order allowing visitation rights of parents B. Interim Reliefs in a Petition for a Writ of Amparo 1. Temporary Protection Order 2. Inspection Order 3. Production Order 4. Witness Protection Order Deposit as a Provisional Remedy A court may order the seller to deposit in the court the amount initially paid as consideration for the land in a action to annul the sale to prevent the dissipation of the amount paid. In ordering the deposit, the court exercised equity jurisdiction. (Reyes v. Lim, 408 SCRA 560)

Purpose of Provisional Remedies 1. To preserve or protect the rights or interests of litigants while the main action is pending; 2. To secure the judgment 3. To preserve the status quo; and 4. To preserve the subject matter of the action Court Which Grants Provisional Remedies: The court which issues the same is the court which has jurisdiction over the main action. Sec 33(1), BP 129: Inferior courts can grant all appropriate provisional remedies, provided the main case is within its jurisdiction. When Provisional Remedies Available May be applied for before final judgment. Preliminary attachment, preliminary injunction, and support pendente lite May be applied before the answer. Replevin May be applied for at any stage of the action and even after f inal judgment. Receivership When Bond is Required and How Amount of Bond is Determined 1. For attachment and injunction, bond is always required from the plaintiff but the amount of the bound to be filed by the applicant is addressed to the sound discretion of the court. 2. In preliminary attachment and replevin , if the applicant is the Republic of the Philippines, no bond shall be required. 3. In receivership, the bond as fixed by the court is not always required of the petitioner, whether or not the appointment of a receiver has been applied for ex parte. 4. In replevin , the bond to be posted by the applicant is an amount double the value of the personal property to be seized. 5. In applications for support pendente l ite , no bond is generally required from the applicant.

- PROVISIONAL REMEDIES -



RULE 57: PRELIMINARY ATTACHMENT Preliminary Attachment, Defined: A provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so that it may be held as security for the satisfaction of whatever judgment may be rendered in the case. (Davao Light and Power, Inc v. CA, 204 SCRA 343) Nature of Preliminary Attachment Being provisional in character, attachment depends for its existence and effectivity upon the pendency of a principal action in court. It is not a distinct proceeding and is availed of within a principal action. It does not affect the decision on the merits; the right to recover judgment on the alleged indebtedness and the right to attach the property of the debtor are entirely separate and distinct, and the judgment in the main action neither changes the nature nor determines the validity of the attachment. Attachment places the property under the custody of the court (custodial legis) and the property is held by the court for the satisfaction of award obtained by the plaintiff in his favor. Attachment is in the nature of a proceeding quasi in rem or in rem. In either case, jurisdiction over the person is not necessary provided jurisdiction over the res is acquired. (Villareal v. CA, 295 SCRA 511) Attachment is purely a statutory remedy. It cannot exist without a statute granting it. (U.S. v. Namit, 38 Phil 926) It is not only the plaintiff who may apply for a writ of preliminary attachment. A defendant who asserts a counterclaim, crossclaim or third-party claim is considered a plaintiff in that sense and may also apply for preliminary attachment. (Borja v. Platon, 73 Phil 659) Attachment is preliminary only when resorted to before the finality of the judgment to secure the property of the adverse party. Once the judgment becomes final and executor, the attachment becomes final as well. Kinds of Attachments: 1. Preliminary Attachment One issued at the commencement of the action or at any time before entry of the judgment as security for the satisfaction of any judgment that may be recovered in the cases provided for by the rules. Here, the court takes custody of the property of the party against whom the attachment is directed. 2. Granishment A kind of attachment in which the plaintiff seeks to subject either the property of the defendant in the hands of a third person called the garnishee, to his claim or the money which said third person owes the defendant. (Rizal Commercial Banking v. Castro, 168 SCRA 49)

Does not involve actual seizure of the property which remains in the hands of the garnishee. Garnishment simply impounds the property in the garnishees possession and maintains the status quo until the main action is finally decided. Only when the decision becomes final and executor will the delivery of the property be made. Jurisdiction over the garnishee is acquired by the mere service upon him of the copy of the writ of garnishment with a notice that his debt to the defendant or any personal property of the defendant under his control or possession is attached. Service of summons is not required, the garnishee will be bound to hold the property by virtue of the writ. Garnishment results into a forced novation. Garnishment usually directed to personal property, tangible or intangible and whether capable of manual delivery or not. 3. Levy on Execution Writ issued by the court after judgment by which the property of the judgment oblige is taken into the custody of the court before the sale of the property on execution for the satisfaction of a final judgment. It is a preliminary step to the sale on execution. Preliminary Attachment (Rule 57) Final Attachment (Rule 39) It is an auxiliary remedy to give security for a judgment still to be rendered It is a means for the execution of a final judgment There is no sale because a decision has not yet been rendered. It should always be accompanied by a sale at public auction. Resorted to at the commencement of the action or at any time before entry of judgment, for the temporary seizure of property of the adverse party

Available after the judgment in the main action had become executor, and for the satisfaction of said judgment. The proceeds of the sale are in custodial egis The proceeds of the sale are turned over to the attaching creditor. Two-Fold Purpose of Attachment 1. To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment; 2. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected Note: Proceeding in attachment is in rem where the defendant does not appear, and in personam where he appears in the action. (Beda citing Regalado Vol , 8th ed p 622) Note: Grant of Preliminary Attachment (PA) is DISCRETIONARY



Strict Construction of the Rule: The rule on the issuance of preliminary attachment must be strictly construed in favor of the defendant. It must be granted only on concrete and specific grounds and not merely on general averments. Sec 1. Grounds upon which attachment may issue. 1. At the commencement of the action OR 2. 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: (a) In an action for the recovery of a specified amount of money OR damages, other than moral and exemplary, o On a cause of action arising from law, contract, quasi-contract, delict or quasi-delict o Against a party: (1) who is about to depart from the RP (2) with intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use: o 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 o BY other person in a fiduciary capacity, or for a willful violation of duty; (c) 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; (d) In an action against a party who has been guilty of a fraud: o In contracting the debt or incurring the obligation upon which the action is brought, or o In the performance thereof; (e) 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 (f) In an action against a party who does not reside AND is not found in the RP, OR on whom summons may be served by publication. Note: The foregoing enumeration (a to f) is EXCLUSIVE. With the exception of Sec 1 (f), all the grounds contemplate the commission of fraud by the person against whom it is issued.

Parties Entitled to Attachment: 1. Plaintiff 2 . Any proper party - Includes also the defendant whenever he asserts a counterclaim against the plaintiff. It also includes defendant in interpleader when he asserts a counterclaim. 3 Stages in the Grant of Preliminary Attachment 1. The court issues the order granting the application; 2. The writ of attachment issues pursuant to the order granting the writ; 3. The writ is implemented. Note: For the first 2 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. (Mangila v. CA, Aug 2002) Methods to Procure Attachment: 1. Writ may be prayed for in the complaint itself 2. May be issued pursuant to a separate motion for attachment. Notes on Cases When Preliminary Attachment (PA) is Proper (Sec 1) When civil action has been waived or reserved, no application for attachment in the criminal action can be allowed and granted. (Erana v. Vera 74, Phil. 272 (1944)) When civil action is suspended due to the filing of the criminal action, no attachment may issue in the criminal action because civil action remains pending in court. (Ramcar, Inc. v. De Leon, 78 Phil. 449 (1947)) The trial court may validly issue a writ of preliminary attachment even if the case is on appeal. The trial court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated on appeal. (Uy v. CA, 215 SCRA 859 (1992)) Where the main action is appealed, the attachment which may have been issued as an incident of that action is also considered appealed and so also removed from the jurisdiction of the court a quo. (Olib v Pastoral 188, SCRA 692 (1990)) One cannot secure PA in every situation. The rules governing PA enumerate specific situations (Section 1) in which the remedy can be availed of.



Notes on Each Case Sec 1 (A): Insolvency or mere inability of the debtor to fulfill his obligation to pay a debt in an action for sum of money is not one of those cases where preliminary attachment is proper. There must be a showing that the debtor intends to depart with intent to defraud his creditors. Under this provision, the cause of action is for money or damages, the amount of which must be specified. The writ of PA cannot be issued for moral and exemplary damages and other unliquidated and contingent claims. (Insular Savings Bank v. CA, 460 SCRA 122) Sec 1 (B): PA under Sec 1 B may also be issued against a corporate officer who with abuse of confidence appropriate corporate funds for his personal use (Walter E. Olsen v. Olsen, 48 Phil 238) but the allegations of fraud, embezzlement and misappropriation must be substantiated. (PBComm v. CA, 352 SCRA 616) Sec 1(C): In this cause of action, the property unjustly or fraudulently taken, detained and converted by the defendant may also be a real property, not just personal property since the rule makes no distinction. (PCIB v. Alejandro, 533 SCRA 738) Sec 1(D): Both dolo causante (causal fraud) and dolo incidente (incidental fraud) are contemplated here. There could also be fraud in contracting the obligation where the debtor has a preconceived plan not to pay the creditor but fraudulent intent by the debtor cannot be inferred from mere inability to pa. (PBComm v. CA, Id) The delivery of counterfeit money in payment of a debt may be considered a ground for PA. (Riano) Sec 1 (E): 2 Elements - (a) There is a removal or disposal of the property, and (b) the removal or disposal must be with intent to defraud the creditor. Mere showing that the debtor has removed or disposed of his property is not sufficient to support a prayer for the issuance of a writ of PA. The act must be shown to be done with intent to defraud the plaintiff. Mortgage of property does not amount to removal/disposal so as to come w/in the purview of Sec1(e) Rule57. (Adlawan v. Torres, 233 SCRA 645 (1994)) Mere removal or disposal of property does not justify an attachment. There must be a showing of intent to defraud defendants creditors before the writ of attachment may issue. (Carpio v. Macadaeg, 9 SCRA 552 (1963)) Sec 1 (F): Here, the attachment is intended to enable the court to acquire jurisdiction over the res by converting the action in personam to an action quasi in rem and thus, justifying summons by publication. (PCIB v. Alejandro, 533 SCRA 738)

This paragraph refers to those persons on whom summons may be served by publication. (Ex. Resident defendants whose identity or whose whereabouts are unknown under Sec 14 Rule 14; resident defendants who are temporarily out of the country) Sec. 2 . Issuance and contents of order. 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 CA or the SC, and - must require the sheriff of the court to attach so much of the property:

o in the RP of the party against whom it is issued, o not exempt from execution, o as may be sufficient to satisfy the applicant's demand UNLESS such party makes deposit OR gives a bond as hereinafter provided in an amount equal to that fixed in the order, which may be: o the amount sufficient to satisfy the applicant's demand or o the value of the property to be attached as stated by the applicant, o EXCLUSIVE of costs. Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. Note:

When the PA is issued ex parte, the writ cannot be enforced and may not be validly implemented unless preceded by a service of summons upon the defendant, or simultaneously accompanied by service of summons, a copy of the complaint, the complaint, the application for attachment, the order of attachment and the attachment bond. (Davao Light and Power Co v. CA, 204 SCRA 343) Implementation of the writ of attachment without the required jurisdiction over his person is null and void. (BAC Mfg. Sons Corp v. CA, 200 SCRA 130) Properties Exempt from Execution: All properties exempt from execution are likewise exempt from attachment. Sec. 3 . Affidavit and bond required. An order of attachment shall be granted ONLY when it appears by the AFFIDAVIT of the applicant, OR of some other person who personally knows the facts: 1. That a sufficient cause of action exists, 2. That the case is one of those mentioned in section 1 hereof, 3. That there is no other sufficient security for the claim sought to be enforced by the action, and 4. 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.



The affidavit , and the bond required by the next succeeding section must be duly fi led with the court BEFORE the order issues. Requirements for Issuance of Writ of Attachment 1. Affidavit of the applicant, or some other person who personally knows the facts showing the facts in (Sec 3). Note: The affidavit must contain all the allegations required, failure to do so renders the writ totally defective as the judge issuing it acts in excess of jurisdiction. 2 . Bond (Sec 4) Note: No notice to the adverse party or hearing of the application is required, as the time which the hearing will entail could be enough to enable the defendant to abscond or dispose of his property before the writ issues. (Regalado, Vol 1, 8th ed., p624) Sec. 4 . Condition of applicant's bond. The party applying for the order must thereafter give a BOND: - executed to the adverse party - in the amount fixed by the court in its order granting the issuance of the writ, - CONDITIONED that the latter will pay:

all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, IF the court shall finally adjudge that the applicant was not entitled thereto. Note: The defendant can only claim from the bond all the damages which he may sustain by reason of the attachment and not because of the sale of the attached properties prior to final judgment. (China Banking Corp v. Asian Construction and Development Corp, April 2008) Sec. 5 . Manner of attaching property. The sheriff enforcing the writ shall without delay and with all reasonable diligence attach,

- to await judgment and execution in the action, - only so much of the property:

o in the RP of the party against whom the writ is issued, o not exempt from execution, o as may be sufficient to satisfy the applicant's demand, UNLESS the former: 1. Makes a deposit with the court from which the writ is issued, or 2. Gives a counterbond 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, - EXCLUSIVE of costs. No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced UNLESS it is preceded, OR contemporaneously accompanied, by service of: 1. Summons, Together with a copy of: 2. The complaint, 3. The application for attachment, 4. The applicant's affidavit and bond, and 5. The order and writ of attachment, on the defendant within the RP. The requirement of prior or contemporaneous service of summons shall NOT APPLY: 1. Where the summons could not be served personally or by substituted service despite diligent efforts, or 2. The defendant is a resident of the Philippines temporarily absent therefrom, OR 3. The defendant is a non-resident of the Philippines, OR 4. The action is one in rem or quasi in rem. Prior or contemporaneous service of summons is not necessary for the validity of the ISSUANCE of a writ of attachment. (Davao Light v. CA, 204 SCRA 343 (1991)) Prior or contemporaneous service of summons is necessary for the validity of the ENFORCEMENT of a writ of attachment. (Onate v. Abrogar, 241 SCRA 659 (1995)) Note: All properties exempt from execution are likewise exempt from attachment. Guevarra: Issuance of order of attachment (by the judge) Sheriff when implementing the writ shall served the writ of attachment (issued by the clerk) If a deposit if filed: the discharge of the property is automatic. If a counter-bond is filed: a motion to discharge the property must be filed and the property shall only be released upon notice and hearing. Sec. 6 . Sheriff 's return. AFTER enforcing the writ, the sheriff must likewise without delay: - make a return thereon to the court from which the writ issued,

o with a full statement of his proceedings under the writ and a complete inventory of the property attached o together with any counter-bond given by the party against whom attachment is issued, and

- serve copies thereof on the applicant.



Sec. 7. Attachment of real and personal property; recording thereof. Real and personal property shall be attached by the sheriff executing the writ in the following manner: (a) Real property, or growing crops thereon, or any interest therein: o standing upon the record of the registry of deed of the province in the name of the party against whom attachment is issued, or o not appearing at all upon such records, or o belonging to the party against whom attachment is issued and held by any other person, or o standing on the records of the registry of deeds in the name of any other person, 1. BY fi l ing with the registry of deeds, o a copy of the order, together with o a description of the property attached, and o a notice that it is attached, OR that such real property and any interest therein held by or standing in the name of such other person are attached, AND 2. BY leaving a copy of such order, description, and notice: o with the occupant of the property, if any, or o with such other person or his agent if found within the province. Where the property has been brought under the operation of either the Land Registration Act OR the Property Registration Decree,

The notice shall contain a reference to: a. The number of the certificate of title, b. The volume and page in the registration book where the certificate is registered, and c. The registered owner or owners thereof. The registrar of deeds must index attachments filed under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records. IF the attachment is NOT claimed on the entire area of the land covered by the certificate of t it le: - a description sufficiently accurate for the identification of the land or interest to be affected - shall be included in the registration of such attachment; (b) Personal property capable of manual delivery, BY:

- taking and safely keeping it in his custody, - AFTER issuing the corresponding receipt therefor; (c) Stocks or shares, or an interest in stocks or shares, of any corporation or company: - BY leaving with the president or managing agent thereof: a. A copy of the writ, and

b. A notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ; (d) Debts and credits , including bank deposits , f inancial interest , royalties, commissions, and other personal property not capable of manual delivery: - BY leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a. a copy of the writ, and b. notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ; (e) The interest of the party whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee BY: 1. Serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. 2. A copy of said writ of attachment and of said notice shall also be: a. filed in the office of the clerk of the court in which said estate is being settled and b. served upon the heir, legatee or devisee concerned. IF the property sought to be attached is in custodia legis :

- A copy of the writ of attachment shall be fi led with the proper court or quasi-judicial agency, and - Notice of the attachment served upon the custodian of such property. Manner of Attaching Property 1. Real property, growing crops, interest therein - Order and Notice to Register of Deeds and Occupant or his agent within the province; 2. Personal property capable of manual delivery - sheriff to take and safely keep it, then issue a receipt; 3. Stocks or shares - writ and notice to president or managing agent; 4. Debts, credits , bank deposits , royalties, commissions, personal property incapable of manual delivery - writ and notice to debtor or person in control thereof; 5. Interest in estate of deceased - writ and notice to executor/administrator, clerk of court where estate being settled, and heir/devisee/legatee; 6. Property in custodia legis- writ to the court/agency and notice to custodian.



Note: Par (c) and (d) refer to garnishment. By such notice of garnishment, the court acquires jurisdiction over the garnishee and the latter becomes a forced intervenor in the case. Property legally attached is property in custodia legis and cannot be interfered with without the permission of the court. The attachment on a property already in custodia legis merely operates as a lien and does not mean that the attaching court will wrest custody of the property from another court. Principle of Seniority of Liens: Where the property attached by the judgment creditor had previously been mortgaged, the judgment creditors lien is inferior to that of the mortagee which must first be satisfied in the event of foreclosure in reality, what was attached by the judgment creditor was merely the judgment debtors right or equity of redemption. (Top Rate International Service v. IAC, July 86) Sec. 8 . Effect of attachment of debts, credits and all other similar personal property. ALL persons having in their possession OR under their control: - any credits or other similar personal property belonging to the party against whom attachment is issued, or owing any debts to him, - at the time of service upon them of the copy of the writ of attachment AND notice as provided in the last preceding section, shall be l iable to the applicant for the amount of such credits, debts or other similar personal property, - UNTIL the attachment is discharged, or any judgment recovered by him is satisfied, - UNLESS such property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment. Note: In order to bind the garnishee on a writ of garnishment, previous service of summons is not required; only service upon him of the writ of garnishment is needed. (Perla Compania v. Ramolete, 203 SCRA 487 (1991)) Sec. 9 . Effect of attachment of interest in property belonging to the estate of a decedent. The attachment of the interest of an heir , legatee, or devisee in the property belonging to the estate of a decedent: Shall NOT impair the power of the executor, administrator, or other personal representative of the decedent over such property for the purpose of administration. Such personal representative, however, shall report the attachment to the court when any petition for distribution is filed, and

- in the order made upon such petition, distribution

may be awarded to such heir, legatee, or devisee, - BUT the property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him. Sec. 10. Examination of party whose property is attached and persons indebted to him or controlling his property; delivery of property to sheriff . Any person owing debts to the party whose property is attached or having in his possession or under his control any credit or other personal property belonging to such party, may be required: 1. To attend before the court in which the action is pending, OR before a commissioner appointed by the court, and 2. Be examined on oath respecting the same. The party whose property is attached MAY also be required: 1. To attend for the purpose of giving information respecting his property, and may 2. Be examined on oath. The court MAY, after such examination, order personal property capable of manual delivery belonging to him, in the possession of the person so required to attend before the court:

- to be delivered to the clerk of the court OR sheriff - on such terms as may be just, having reference to any lien thereon or claim against the same, to await the judgment in the action. Note: The examination in Rule 39 is proper only when the writ of execution is returned unsatisfied The examination under this section is not subject to a preliminary condition but is anticipatory in nature and may be resorted to even if the writ of attachment was not returned because no property could be found to be levied upon. If the garnishee does not admit the indebtedness or he claims the property, the controversy must be determined in an independent action. (Bucra Corp v. Macadaeg, 84 Phil 493) Sec. 11. When attached property may be sold after levy on attachment and before entry of judgment. Whenever it shall be made to appear to the court in which the action is pending UPON hearing with notice to both parties: 1. That the party attached is perishable, or 2. That the interests of all the parties to the action will be will be subserved by the sale thereof, the court MAY ORDER: - such property to be sold at public auction in such manner as it may direct, and



- the proceeds of such sale to be deposited in court to abide the judgment in the action. Note: Proceeds in this case will be in custodia legis GR: A writ of PA does not have the effect of a final judgment over the property attached. Hence, it cannot be sold during the pendency of the action. EXC: Sec 11 Rule 57 Property may be sold after levy on attachment and before entry of judgment whenever it shall be made to appear to the court upon notice and hearing, that the property is perishable or the interests of all the parties to the will be will be subserved by the sale. Sec. 12. Discharge of attachment upon giving counterbond. AFTER a writ of attachment has been enforced: - the party whose property has been attached, or the person appearing on his behalf, - may move for the discharge of the attachment wholly or in part on the security given. The court SHALL, after due notice and hearing, ORDER the discharge of the attachment, IF the movant: - Makes a cash deposit , or f i les a counter-bond executed to the attaching party - with the clerk of the court where the application is made, - in an amount:

equal to that fixed by the court in the order of attachment, EXCLUSIVE of costs. BUT if the attachment is sought to be discharged with respect to a particular property, the counter-bond shall be equal to the value of that property as determined by the court.

In EITHER case, the cash deposit OR the counter-bond shall secure the payment of any judgment that the attaching party may recover in the action. A notice of the deposit SHALL forth with be served on the attaching party. UPON the discharge of an attachment in accordance with the provisions of this section, - the property attached, OR the proceeds of any sale thereof, SHALL BE delivered: a. to the party making the deposit or giving the counter-bond, or b. to the person appearing on his behalf, - the deposit or counter-bond aforesaid standing in place of the property so released. Should: 1. Such counter-bond for any reason be found to be or become insufficient, AND 2. The party furnishing the same fail to file an additional counter-bond, the attaching party may apply for a new order of

attachment. Counterbonds are replacements of the property formerly attached, and just as the latter may be levied upon final judgment. (Security Pacific Assurance Corp v. Tria Infante, 468 SCRA 526) The mere posting of the counter-bond does not automatically discharge the writ of attachment. It is only after the hearing and after the judge has ordered the discharge of attachment that the same is properly discharged. (Id.) Guevarra: Counter-bond in this case does not answer for the damages. Rather, the counter-bond answers for the judgment in the main case. Sec. 13. Discharge of attachment on other grounds. The party whose property has been ordered attached MAY: - f i le a motion with the court in which the action is pending, - before or after levy or even after the release of the attached property, for an order to set aside or discharged the attachment on the GROUND: 1. That the same was improperly or irregularly issued or enforced, or 2. That the bond is insufficient. IF the attachment is excessive, the discharge shall be limited to the excess. 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 - IF it appears: 1. that it was improperly or irregularly issued or enforced, or 2. that the bond is insufficient, or 3. that the attachment is excessive, and the defect is not cured forthwith. Grounds for Discharge 1. Debtor has posted a counter-bond or has made the requisite cash deposit; 2. Improper or irregular issuance of attachment; 3. Improper or irregular enforcement of attachment; (ex. When the summons has not been served during implementation) 4. Bond is insufficient;



5. Attachment is excessive, in which case the discharge is limited to the excess; 6. Property attached is exempt from execution; or 7. Judgment is rendered against the attaching creditor. Note: An ex parte discharge or suspension of the attachment is a disservice to the orderly administration of justice and nullifies the underlying role and purpose of preliminary attachment in preserving the rights of the parties pendent lite as an ancillary remedy. Sec. 14. Proceedings where property claimed by 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: 1. Makes an affidavit of his title thereto, OR right to the possession thereof, stating the grounds of such right or title, and 2. Serves such affidavit upon the sheriff while the latter has possession of the attached party, 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 f i le a bond

o approved by the court to indemnify the third-party claimant o 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 120 days from the date of the filing of the bond. The sheriff shall NOT be l iable 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 l iable 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. Remedy of the third person: 1. File a terceria or third party claim (Similar to Sec 16, Rule 39) 2. File an independent action to recover his property, or 3. File a motion for intervention (Available only before a judgment is rendered, hence not allowed under Rule 39) Where the sheriff attaches a property claimed by a third person, such person may institute a separate action to vindicate his right. The rule that property in custody of the law may not be interfered with by another court applies only in cases where the property belongs to the defendant or one in which he has an interest. (Uy v. CA, 191 SCRA 275 (1990)) A third-party claim may be filed with the sheriff while he has possession of the properties levied upon, this being the only time fixed for the purpose. (Mangaoang v. Provincial Sheriff of La Union, May 56) The third-party claimant may also invoke the courts authority in the same case and move for a summary hearing on his claim. 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. (Ching v. CA, 423 SCRA 356) Note: The above remedies are cumulative and not any one of them may be resorted to without availing of the other remedies. (Ching v. CA, 423 SCRA 356)



Sec. 15. Satisfaction of judgment out of property attached; return of sheriff . IF judgment be recovered by the attaching party AND execution issue thereon, the sheriff MAY: - cause the judgment to be satisfied out of the property attached, - if it be sufficient for that purpose in the following manner: (a) By paying to the judgment obligee: - the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or - so much as shall be necessary to satisfy the judgment; (b) IF any balance remains due: - by selling so much of the property, real or personal, as may be necessary to satisfy the balance, - if enough for that purpose remain in the sheriff's hands, or in those of the clerk of the court; (c) By collecting: - from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter - at the time of the attachment of such credits or debts, - the amount of such credits and debts as determine by the court in the action, and stated in the judgment, and PAYING the proceeds of such collection over to the judgment obligee. The sheriff shall forthwith: make a return in writing to the court of his proceedings under this section and furnish the parties with copies thereof. Sec. 16. Balance due collected upon an execution; excess delivered to judgment obligor. AFTER: 1. Realizing upon all the property attached, including the proceed of any debts or credits collected, and 2. Applying the proceeds to the satisfaction of the judgment, LESS the expenses of proceedings upon the judgment, any balance shall remain due, the sheriff must proceed to collect such balance as upon ordinary execution. Whenever the judgment shall have been paid, the sheriff : - upon reasonable demand, - must return to the judgment obligor: a. the attached property remaining in his hands, and b. any proceeds of the sale of the property attached NOT applied to the judgment. Sec. 17. Recovery upon the counter-bond. When the judgment has become executory: - the surety or sureties on any counter-bond given pursuant to the provisions of this Rule to secure the payment of the judgment

- shall become charged on such counter-bond and bound to pay the judgment obligee UPON demand - the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action. Note: Where the writ of execution is returned unsatisfied, the liability of the counterbond automatically attaches without the need for the plaintiff to file a supplemental pleading to claim payment from the surety. (Vanguard Assurance v. CA, May 75) Sec. 18. Disposition of money deposited. Where the party against whom attachment had been issued has deposited money instead of giving counter-bond, - it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and - after satisfying the judgment the balance shall be rendered to the depositor or his assignee. IF the judgment is in favor of the party against whom attachment was issued, the whole sum deposited must be refunded to him or his assignee. Sec. 19. Disposition of attached property where judgment is for party against whom attachment was issued. IF judgment be rendered against the attaching party,: - All the proceeds of sales and money collected or received by the sheriff, UNDER the order of attachment, and - All property attached remaining in any such officer's hands, shall be delivered to the party against whom attachment was issued, and the order of attachment discharged. Sec. 20. Claim for damages on account of improper, irregular or excessive attachment. An application for damages on account of improper, irregular or excessive attachment MUST be filed: 1. before the trial or 2. before appeal is perfected or before the judgment becomes executory, with due notice to the attaching party and his surety or sureties, setting forth: 1. The facts showing his right to damages and 2. The amount thereof. Such damages may be awarded ONLY after proper hearing and shall be included in the judgment on the main case. IF the judgment of the appellate court be favorable to the party against whom the attachment was issued: - he must claim damages sustained during the pendency of



the appeal BY: a. filing an application in the appellate court, b. WITH notice to the party in whose favor the attachment was issued or his surety or sureties, c. BEFORE the judgment of the appellate court becomes executory. The appellate court may allow the application to be heard and decided by the trial court. Nothing herein contained shall prevent the party against whom the attachment was issued: - from recovering in the same action the damages awarded to him from any property of the attaching party not exempt from execution - should the bond or deposit given by the latter be insufficient or fail to fully satisfy the award When to Apply for Damages Against the Attachment Bond a. Before trial; b. Before appeal is perfected; c. Before judgment becomes executory; or d. In the appellate court for damages pending appeal, before judgment becomes executory. Claims for Damages - GR: Claims for damages cannot be subject of independent action (Procedure for claiming damages outlined in Sec 20 is EXCLUSIVE) - EXC: 1. When principal case is dismissed by the trial court for lack of jurisdiction without giving the claiming party opportunity to prove claim for damages; 2. When damages was sustained by a third person not a party to the action. Note: 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. Where there is 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 it is alleged and established that the attachment was not merely wrongful but also malicious, moral and exemplary damages may also be obtained. (Spouses Yu v. Ngo Yet Te, Feb 07) The damages may only be awarded only upon proper hearing. No judgment may be entered and executed against the surety without giving him the opportunity to be heard as to the reality of reasonableness of the damages. (Carlos v. Sandoval, 471 SCRA 266) To merit an award of actual damages arising from a wrongful attachment, the defendant must prove the fact of loss or injury suffered and the amount thereof. Such loss of injury must be of a kind which is not only capable

of proof but must actually be proved with a reasonable degree of certainty. (Spouses Yu v. Ngo Yet Te, Feb 07) RULE 58: PRELIMINARY INJUNCTION Nature of Preliminary Injunction: An ancillary and preventive remedy where a court requires a person, a party or even a court or tribunal to refrain (prohibitory) from or to perform (mandatory) particular acts during the pendency of the action. It is merely a temporary remedy subject to the final disposition of the principal action. (Dungog v. CA, 408 SCRA 267) It is issued to prevent continuous and irreparable injury to the parties before their claims be thoroughly adjudicated by the parties. Sec 1. Preliminary injunction defined; classes. A PRELIMINARY INJUNCTION is an order granted at ANY stage of an action or proceeding PRIOR to the judgment or final order, - requiring a party or a court, agency or a person to refrain from a particular act or acts. - It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction. Preliminary Prohibitory Injunction: An order granted at any stage of an action or proceeding prior to judgment or final order, requiring a party or court, agency or person to refrain from a particular act or acts. Preliminary Mandatory Injunction: An order granted at any stage of an action or proceeding prior to the judgment or final order, requiring the performance of a particular act or acts. Prohibitory Mandatory Purpose to prevent a person from the performance of a particular act Purpose is to require a person to perform a particular act The act has not yet performed The act has already been performed and the act has violated the right s of another The status quo is preserved Status quo is restored Purpose of Preliminary Injunction: 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. (Cortez Estrada v. Heirs of Domingo, 451 SCRA 275) Status Quo, Defined: The last actual, peaceable and uncontested situation which precedes the controversy. Requisites: To be entitled to an injunctive write, a party must show that:



1. Invasion of the right s material and substantial 2. Right of the complainant is clear and unmistakable 3. Urgent and paramount necessity for the writ to prevent serious damages. (Sydicated Media Access Corp. v. CA, 219 SCRA 794 (1993)) Preliminary Injunction Prohibition Generally directed against party to the action but may be against any person Directed against a court, tribunal, or a person exercising judicial, quasi-judicial, or ministerial functions Does NOT involve the jurisdiction of the court May be on the ground that the court against whom the writ is issue sought acted without or in excess of jurisdiction May be the main action itself or just a provision remedy in the main action Always a main action Provisional Remedy Special Civil Action Injunction, defined: May be an action in itself, brought specifically to restrain or command the performance of an act. As an action, it is immediately executor under Sec 4, Rule 39. - GR: It will not lie against acts already consummated - EXC: If the acts complained of are continuing in nature and were in derogation of plaintiffs rights at the ouset. Main Action for Injunction Preliminary Injunction Independent action Incident to the principal action Seeks a judgment embodying a final injunction. Seeks to preserve the status quo until the merits can be heard. Sec. 2 . Who may grant preliminary injunction. A preliminary injunction may be granted: 1. By the court where the action or proceeding is pending. 2. IF the action or proceeding is pending in the CA or in the SC, it may be issued by said court or any member thereof. Who May Grant Preliminary Injunction 1. SC (original and appellate jurisdiction) 2. CA 3. Trial Courts in cases pending (MTCs and RTCs) Note: If the main action is for injunction, the MTC cannot grant the preliminary injunction. An action of injunction is one incapable of pecuniary estimation, hence cognizable by the RTC. 4. Sandiganbayan 5. CTA

The RTC cannot restrain or enjoin acts being perpetrated or to be perpetrated outside of its territorial boundaries. (Acosta v Alvendia 109 Phil. 1017 (1960)) Where the main action is the annulment of the action of the respondent and the injunction is merely corollary, trial court of locality where questioned act is to be implemented has jurisdiction. (Decano v. Edu, 99 SCRA 410 (1980)) Limitations of the Power of the RTC to Issue Writ of Preliminary Injunction It could not issue writ in unfair labor pracices. It could not issue said writ against the SEC, Bureau of Patents, Trademarks, and Technology Transfer, IPO, Workmens Compensation Commission or the COMELEC; and It could not interfere by injunction with the judgment of a court of concurrent or coordinate jurisdiction. Sec. 3 . Grounds for issuance of preliminary injunction. A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists: 1. In restraining the commission or continuance of the act or acts complained of, OR 2. In requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a 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, and tending to render the judgment ineffectual. Actions Where Preliminary Injunction Lies 1. In petitions for relief from judgment entered through fraud, accident, mistake or excusable negligence; 2. In petitions for certiorari, prohibition, and mandamus; 3. In actions for annulment of judgments obtained through fraud; 4. In actions for annulment of judgments which are not patent nullities (want of jurisdiction, lack of due process of law) (Banco Espanol v. Palanca, 37 Phil. 921); 5. To restrain continued breach of valid negative obligation; 6. To enjoin repeated trespass on land;



7. To restrain city from proceeding with abatement of nuisance per accidens before it has been judicially declared as such; 8. To restrain voting of disputed shares of stocks; 9. To restrain sheriff from selling property on execution not belonging to judgment debtor; 10. To restrain criminal prosecutions as an exception, in the following cases: a. To afford adequate protection to constitutional rights of accused; b. When there is a pre-judicial question which is sub judice; c. Prosecution under an invalid law; d. Double jeopardy is clearly apparent; e. Court without jurisdiction over the offense; f. Case of persecution rather than prosecution; g. Charges manifestly false and motivated by lust for vengeance; 11. There is clearly no prima facie case against accused and motion to quash on said ground is denied; and 12. Preliminary injunction issued by SC to prevent threatened unlawful arrest of petitioners. Examples of Cases Justifying the Issuance of a Writ of Preliminary Injunction Settled is the rule that to arrest the course of a principal action during the pendency of certiorari proceedings, there must be a TRO of a writ of preliminary injunction from the higher court directed to the lower court. (People v. Almedras, 401 SCRA 555) Same rationale whenever a Petition for Relief or Annulment of Judgment is filed. It may also be availed of to restore the plaintiff in his possession in a complaint for forcible entry or unlawful detainer. (Sec 15 Rule 70) Quantum of Evidence Required The plaintiff must further establish that he or she has a present and unmistakable right to be protected that the facts against which injunction is directed violate such right, and there is a special and paramount necessity for the writ to prevent serious damages. However, to establish the essential requisites for a preliminary injunction, the evidence to be submitted need NOT be conclusive and complete. The plaintiffs are only required to show that they have an ostensible right to the final relief prayed for in their complaint. At the hearing, mere prima facie evidence is needed to establish the applicants rights or interests in the subject matter of the main action. The trial court in granting or dismissing an application for a writ of preliminary injunction based on the pleadings of he parties and their respective evidence

must state in its order the findings and conclusions based on the evidence and the law. An application of a writ of preliminary injunction involves the assessment and evaluation of the evidence and its findings of facts are ordinarily binding and conclusive on the appellate court. (Sps Nisce v. Equitable PCI Bank, Feb 07) ACTIONS WHERE PRELIMINARY INJUNCTION DOES NOT LIE When action for damages would adequately compensate injuries caused (Golding v. Balatbat, 36 Phil. 941); To prevent directors from discharging their offices and restoring former directors; To restrain criminal prosecution where the Ombudsman had authorized the Special prosecutor to conduct a preliminary investigation or to file an injunction. As a rule, injunction is not proper where its purpose is to take property out of the possession or control of one party and place it in the hands of another party whose title has not been clearly established by law. (Allure Manufacturing v. CA, 199 SCRA 285 (1991)) Although as a general rule, a court should not, by means of preliminary injunction, transfer property in litigation from the possession of one party to another, this rule admits of some exceptions. For example, when there is a clear finding of ownership and possession of the land or unless the subject land is covered by a torrens title pointing to one of the parties as the undisputed owner. (Cagayan de Oro Landless Residents Association v. CA, 254 SCRA 200 (1996)) Examples of Cases in which Injunction/Preliminary Injunction Will Not Issue (Riano List) 1. No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity except as otherwise provided in Art 218 and 264 of the Labor Code. (San Miguel Corp v. NLRC, 403 SCRA 418) It is the NLRC which may grant such relief under Art 218 LC. 2. Concessions, licenses, permits, patents of public grants as to the disposition, exploitation, utilization, exploration and or development of natural resources. (PD 605) 3. Only the Supreme Court may issue injunction against the government, officials or any person or entity whether public or private acting under the government direction, to restrain, prohibit or compel acts pursuant to the implementation and completion of infrastructure projects. (Section 3, RA 8975) (from acquisition, clearance, bidding, development, execution, termination of the project) Note: The prohibition does not apply when (a) the matter is of extreme urgency; (b) involves a constitutional issue; and (c) grave injustice and irreparable injury will arise unless a TRO is issued. In this case a bond will be filed.



4. In cases against the Presidential Agrarian Reform Council (PARC) or any of its agents in any case connected with the implementation of the CARP. (Sec 55 RA 6657) 5. In cases against the Asset Privatization Trust [now the Privatization Management Office of the Dept of Finance] (Sec 31-A, Proclamation No. 50-A) 6. In cases of collection of any NIRC tax, fee, charge. (RA 8424 Sec 218) 7. Trial courts are enjoined from issuing orders releasing imported articled impounded by the Bureau of Customs. The Collector of Customs has the exclusive jurisdiction over seizure and forfeiture proceedings. (Zuno v. Cabredo) 8. In cases of consummated acts. (PNB v. Adi, 173 SCRA 550) 9. Cannot be issued for the purpose of establishing new relations between the parties. (Almeida v. CA, 448 SCRA 68) 10. Where there is a lack of clear and unmistakable right on the party as when the complainants right is doubtful. (Cortez Estrada v. Heirs of Domingo Samut, 451 SCRA 275) 11. When in effect it would dispose of the main case without trial. 12. Injunction will not lie to restrain a criminal prosecution with the exception of those on page 12. 13. In case of extrajudicial foreclosure of mortgage on the allegation that the loan has been paid or is not delinquent unless the application is verified and supported by evidence of payment. If the ground is that the interest is unconscionable, the debtor must pay the mortgagee at least 12% interest per annum before the writ may be issued. 14. In cases where the BSP examines any institution subject to its supervision or examination, unless there is convincing proof that the action of the BSP is plainly arbitrary and made in good faith and the plaintiff files a bond executed in favor of the BSP. Sec. 4 . Verified application and bond for preliminary injunction or temporary restraining order. A preliminary injunction OR temporary restraining order may be granted ONLY when: (a) The application in the action or proceeding: - is verified, and - shows facts entitling the applicant to the relief demanded; and (b) UNLESS exempted by the court, the applicant FILES with the court where the action or proceeding is pending, a BOND executed to the party or person enjoined: - in an amount to be fixed by the court, - to the effect that the applicant will pay to such party or person all damages which he may sustain by

reason of the injunction or temporary restraining order - IF the court should finally decide that the applicant was not entitled thereto. UPON approval of the requisite bond, a writ of preliminary injunction shall be issued. (c) When an application for a writ of preliminary injunction or a TRO is included in a complaint or any initiatory pleading, - the case, if filed in a multiple-sala court , - shall be raffled ONLY AFTER notice to and in the presence of the adverse party OR the person to be enjoined. In any event, such notice shall:

- be preceded, or contemporaneously accompanied, by service of summons, - together with a copy of the complaint or initiatory pleading and the applicants affidavit and bond, upon the adverse party in the Philippines. HOWEVER: 1. Where the summons could not be served personally or by substituted service despite diligent efforts, OR 2. The adverse party is a resident of the RP temporarily absent therefrom OR is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall NOT apply. (d) The application for a TRO shall thereafter be acted UPON:

- ONLY after ALL parties are heard in a summary hearing which shall be conducted - within 24 hrs 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. Fil ing of Bond: The applicant shall file a bond, unless exempted by the court (Sec 4b, Rule 58). The rule grants the court the discretion on the matter of the posting of a bond. Unless it appear that the enjoined party will not suffer any damage, the presiding judge must require the applicant to post a bond, otherwise the courts could become instruments of oppression and harassment. (Universal Motors Corp v. Rojas, 459 SCRA 14)



Sec. 5. Preliminary injunction not granted without notice; exception. NO preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. Ground Remedy IF it shall appear: - From facts shown by affidavits or by the verified application - That great or irreparable injury would result to the applicant BEFORE the matter can be heard on notice,

The court to which the application for preliminary injunction was made, may: 1. Issue ex parte a TRO to be effective ONLY for a period of 20 days FROM service on the party or person sought to be enjoined, EXCEPT as herein provided. 2. Within the said 20 day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, 3. Determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. HOWEVER, and SUBJECT to the provisions of the preceding sections, IF: 1. The matter is of extreme urgency AND 2. The applicant will suffer grave injustice and irreparable injury

The executive judge of a multiple-sala court OR the presiding judge of a single-sala court may: 1. Issue ex parte a TRO effective for ONLY 72 hrs FROM issuance BUT he shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. 2. Thereafter, within the aforesaid 72 hrs, the judge before whom the case is pending shall conduct a summary hearing to determine whether the TRO shall be extended until the application for preliminary injunction can be heard. In NO case shall the total period of effectivity of the TRO exceed 20 days, INCLUDING the original 72 hrs provided herein. In the event that the application for preliminary injunction is denied OR not resolved within the said period: - the TRO is deemed automatically vacated. The effectivity of a TRO is: - NOT EXTENDIBLE without need of any judicial declaration to that effect and - NO court shall have authority to extend or renew the same on the same ground for which it was issued.

HOWEVER, IF issued by the CA or a member thereof: - the TRO shall be effective for 60 days - FROM service on the party OR person sought to be enjoined. IF issued by the SC or a member thereof shall be effective until further orders.

TRO issued by executive judge for muli-sala courts/ordinary judge for single sala courts TRO issued by ordinary judge Good for 72 hours Good for 20 days Issued before raffling Issued after raffling Issued ex-parte Issued after summary hearing Note: 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. Rules that govern: With the exception of those provisions that apply to single-sala stations especially with regard to immediate notice to all parties of all applications for TRO. (Sec 4, Admin Circular, September 12, 1995) General Procedure a. Verified application b. Injunction bond c. Raffle of case requires notice and presence of party enjoined only in multiple sala court when the application is included in a complaint or any initiatory pleading d. Service of summons to precede or accompany notice of raffle e. Summary hearing for all parties necessary before issuing TRO Irreparable Injury, defined: - By irreparable injury is not meant such injury as is beyond the possibility of repair, or beyond possible compensation in damages, nor necessarily great injury or great damage, but that species of injury, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other; and because it is so large on the one hand, or so small on the other, is of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in a court of law. - It is considered 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. (SSC v. Bayona, May 82) Notice and Hearing Requirements - No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. It cannot be issued ex parte. - Note however that in the case of a TRO, the same may be issued ex parte. Duration of Temporary Restraining Order 1. 20 days from notice: if great or irreparable injury would result to the applicant before the matter can be heard on notice. 2. 72 hours from issuance (issued ex parte): if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. If before the expiration of the 20 day period, the application for preliminary injunction is denied, the TRO would be deemed automatically vacated. If no action is taken by the judge within the 20 day period, the TRO would automatically expire on the 20th day y the sheer force of law, no judicial declaration to that effect being necessary. (Bacolod City Water District v. Libayen, 446 SCRA 110) same rule applies in case of a TRO issued by the CA with respect to the 60-day period. The rule against the non-extendibility of the 20 day effectivity of a TRO is absolute if issued by a RTC. The failure of the trial court to fix a period in the TRO does not convert it to a preliminary injunction. Where there is an omission to fix the period, the 20 day period is deemed incorporated in the order. (Bacolod City Water District v. Libayen, 446 SCRA 110) The lifetime of the TRO is non extendible. A second TRO issued after the expiration of the 20/60 day period is a patent nullity. (Padilla v. Ascuncion, AM No. 06-44-CA-J, Mar 07) It is improper to order a hearing on the issuance of a TRO where it was not prayed for in the complaint. (Universal Motor Corp v. Rojas, 459 SCRA 14) Injunction TRO May exceed 20 days Does not exceed 20 days Restrains or requires the performance of particular acts Maintain status quo Status Quo Order: It is not a TRO. It is more in the nature of a cease and desist order. 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 subjected to agreement of the parties. No bond is required for its issuance. Note: 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 sough such relief nor

did the allegations in his pleading sufficiently make out a case for a TRO. Sec. 6 . Grounds for objection to, or for motion of dissolution of , injunction or restraining order. The application for injunction or restraining order may be denied, or, if granted, may be dissolved, 1. UPON a showing of its insufficiency 2. On other grounds UPON affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. 3. It may further be denied, or, 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 (person enjoined) fi les 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. Grounds for Denial of Application or Dissolution of Injunction 1. Showing of insufficiency of application; 2. Other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits; 3. When Defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable injury if injunction granted or continued while plaintiff can be fully compensated; 4. Applicants bond is insufficient or defective.

Mere filing of a counterbond is not sufficient to dissolve a writ of preliminary injunction. The writ may be granted or dissolved only upon good and valid grounds. To warrant dissolution, aside from the counterbond, the party enjoined must also show that the injunction will cause him irreparable damage while applicant can be compensated for damages he may suffer (show through hearing). Filing a counterbond to dissolve injunction is not a matter of right. (De la Cruz v. Tan Torres, 107 Phil. 1163 (1960)) Order Granting a Writ of Preliminary Injunction is an INTERLOCUTORY ORDER The grant of the writ is therefore not appealable. The SCA of certiorari is therefore,



the correct remedy. (United Coconut Planters Bank v. United Alloy Phil Corp, 449 SCRA 473) Sec. 7 . Service of copies of bonds; effect of disapproval of same. The party fi l ing a bond in accordance with the provisions of this Rule SHALL: - forthwith serve a copy of such bond on the other party, - who may except to the sufficiency of the bond, or of the surety or sureties thereon. IF: 1. The applicants bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and 2. A bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be dissolved. IF: 1. The bond of the adverse party is found to be insufficient in amount, or 2. The surety or sureties thereon fail to justify a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be granted or restored, as the case may be. Sec. 8 . Judgment to include damages against party and sureties. At the trial, the amount of damages to be awarded to either party UPON the bond of the adverse party, shall be claimed, ascertained, and awarded under the same procedure prescribed in section 20 of Rule 57. Note: The requisites for judgment for damages against the surety/ies are: (1) the application for damages must be filed in the same case where the bond was filed; (2) such application for damages must be filed before entry of judgment; and (3) there must be hearing and notice to the surety. (Paramount Insurance v. CA, 310 SCRA 377 (1999)) Sec. 9 . When final injunction granted. IF AFTER the trial of the action: - it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, - the court shall grant a f inal injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts or confirming the preliminary mandatory injunction. Preliminary Injunction Final Injunction Sec 1 Rule 58 Sec 9 Rule 58 Granted at any stage of an One issued in the judgment in

action prior to the judgment or final order therein. the case permanently restraining the defendant or making the preliminary injunction RULE 59: RECEIVERSHIP Sec 1. Appointment of receiver. UPON a verified application,: - one or more receivers of the property subject of the action or proceeding - may be appointed by: the court where the action is pending, or by the CA or by the SC, or a member thereof, in the following cases: (a) When it appears from the verified application, and such other proof as the court may require, that

- the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and - that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; (b) When it appears in an action by the mortgagee for the foreclosure of a mortgage: - that the property is in danger of being wasted or dissipated or materially injured, AND - that its value is probably insufficient to discharge the mortgage debt, OR - that the parties have so stipulated in the contract of mortgage; (c) AFTER judgment: 1. To preserve the property during the pendency of an appeal, or 2. To dispose of it according to the judgment, or 3. To aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise 4. To carry the judgment into effect; (d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. During the pendency of an appeal, the appellate court may allow:

- an application for the appointment of a receiver to be filed in and decided by the court of origin and - the receiver appointed to be subject to the control of said court. Receiver, defined: An indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite, when



it does not seem reasonable to the court that either party should hold it. - A receiver is not a representative party under Rule 3 but a real party in interest. - BUT he cannot file a case without the consent of the receivership court. - Must be a disinterested person (Not absolute the applicant may be appointed as the receiver if there is no opposition from the other party) Note: The property must be under litigation. Purpose: For the preservation of the property involved in the suit and to protect the rights of all the parties under the direction of the court. Receivership, like injunction, may be the principal action itself or just an ancillary remedy. Such appointment of the RTC, during the perfection of an appeal is covered by its residual jurisdiction under Sec 9 of Rule 41, since this does not involve any matter litigated by the appeal. This provisional remedy may be resorted to during the pendency of an appeal or even after the judgment has become final and executory. The receivership provided in Rule 59 is directed to the property which is the subject of the action and does not refer to those authorized under the Banking Laws. Note: Appointment of a receiver is not proper where the rights of the parties are still to be determined by the trial court and there is no showing that grave or irremediable damage may result to the applicant unless a receiver is appointed. The property in question is real property. Hence, it is neither perishable nor consumable. Even though it is mortgaged to a third person, there is no evidence that payment of the mortgage obligation is being neglected. In any event, applicants rights and interests may be adequately protected during the pendency of the action by causing his adverse claim to be annotated on the certificate of title. (Descallar v. CA, 224 SCRA 566 (1993)) Procedure: 1. A verified application must be filed 2. The applicant must have an interest in the property or funds subject of the action 3. The applicant must show that the property or funds is in danger of being lost, wasted, or dissipated 4. The application must be with notice and must be set for hearing 5. Before issuing the appointment of a receiver, the court shall require the applicant to post a bond in favor of the adverse party. 6. When the receiver is appointed, the receiver shall take his oath but before doing so, he shall file a bond. There are two bonds: the applicants bond and the receivers bond.

7. Before entering upon his duties, the receiver must be sworn to perform his duties faithfully Sec. 2 . Bond on appointment of receiver. BEFORE issuing the order appointing a receiver the court shall require the applicant to fi le a bond - executed to the party against whom the application is presented, - in an amount to be fixed by the court, - to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver IN CASE the applicant shall have procured such appointment without sufficient cause; and the court may, in its discretion: - at any time after the appointment, - require an additional bond as further security for such damages. Sec. 3 . Denial of application or discharge of receiver. The application MAY be denied, OR the receiver discharged: 1. When the adverse party fi les a bond executed to the applicant, in an amount to be fixed by the court, to the effect that such party will pay the applicant all damages he may suffer by reason of the acts, omissions, or other matters specified in the application as ground for such appointment. 2. The receiver may also be discharged if it is shown that his appointment was obtained without sufficient cause. Causes for Denial of Application or Discharge of Receiver 1. Appointment sought is without sufficient cause; (Sec 3) 2. Adverse party files sufficient bond for damages;(Sec 3) 3. Applicant bond is insufficient; (Sec 5) or 4. Receivers bond is insufficient. (Sec 5)

The appointment of a receiver lies within the sound discretion of the court. It is not a matter of absolute right even when stipulated for by the parties. (Samson v. Barrios, 63 Phil. 198 (1936)) An order appointing a receiver is interlocutory. Certiorari, not appeal, is the proper remedy. (Ylarde v. Enriquez, 78 Phil. 527 (1947))



Sec. 4. Oath and bond of receiver. BEFORE entering upon his duties, the receiver: 1. shall be sworn to perform them faithfully, and 2. shall f i le a bond, executed to such person and in such sum as the court may direct, to the effect that he will faithfully discharge his duties in the action or proceeding and obey the orders of the court. Note: Both the applicant for receivership and the receiver appointed must file separate bonds. Note: The receiver shall also file a bond before entering upon his duties separate from the bond filed by the applicant. The bond shall be liable if the damages sustained were due to the receivers malfeasance Sec. 5 . Service of copies of bonds; effect of disapproval of same. The person filing a bond in accordance with the provisions of this Rule shall: forthwith serve a copy thereof on each interested party, who may except to its sufficiency or of the surety or sureties thereon. IF either: 1. The applicants or the receivers bond is found to be insufficient in amount, OR if the surety or sureties thereon fail to justify, AND 2. A bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the application SHALL be denied or the receiver discharged, as the case may be. IF: 1. The bond of the adverse party is found to be insufficient in amount OR the surety or sureties thereon fail to justify, AND 2. A bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the receiver SHALL be appointed or re-appointed, as the case may be. Sec. 6 . General powers of receiver. SUBJECT to the control of the court in which the action or proceeding is pending, a receiver shall have the power: 1. To bring and defend, in such capacity, actions in his own name; 2. To take and keep possession of the property in controversy; 3. To receive rents; 4. To collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; 5. To compound for and compromise the same (debts); 6. To make transfers;

7. To pay outstanding debts; 8. To divide the money and other property that shall remain among the persons legally entitled to receive the same; and 9. Generally to do such acts respecting the property as the court may authorize. HOWEVER, funds in the hands of a receiver may be invested ONLY: 1. by order of the court 2. UPON the written consent of all the parties to the action. NO action may be fi led by or against a receiver without leave of the court which appointed him. Sec. 7 . Liability for refusal or neglect to deliver property to receiver. A person who refuses or neglects, UPON reasonable demand to deliver to the receiver - all the property, money, books, deeds, notes, bills, documents and papers within his power or control, - subject of or involved in the action or proceeding, or in case of disagreement, as determined and ordered by the court, 1. may be punished for contempt AND 2. shall be l iable to the receiver for: a. the money or the value of the property and other things so refused or neglected to be surrendered, b. together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. Sec. 8 . Termination of receivership; compensation of receiver. Whenever the court, - motu proprio OR on motion of either party, - shall determine that the necessity for a receiver no longer exists, it shall , after due notice to all interested parties and hearing: 1. Settle the accounts of the receiver, 2. Direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them, and 3. Order the discharge of the receiver from further duty as such. 4. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. Sec. 9 . Judgment to include recovery against sureties. The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this Rule shall be claimed, ascertained, and granted under the same procedure prescribed in Section 20 of Rule 57.



Claims Against Bond: In claims against the bond, it shall be filed, ascertained and granted under the same procedure as Section 20, Rule 57, whether it be damages against the applicants bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the receivers bond by reason of the receivers management (in the latter case, no longer need to file a separate action). Note: 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. (De la Rosa & Co. v. De Borja, Jan 29) RULE 60: REPLEVIN Delivery of personal property as a provisional remedy Delivery of personal property as a provisional remedy consists in the delivery, by order of the court of a personal property by the defendant to the plaintiff, who shall give a bond to assure the return thereof or the payment of damages to the defendant if plaintiffs action to recovery possession of the same property fails, in order to protect the plaintiffs right of possession of said property, or prevent the defendant from damaging, destroying or disposing of the same during the pendency of the suit. (Calo v. Roldan, 76 Phil. 445 (1946)) It is both a form of principal remedy and a provisional relief. It is also described as a mixed action because it is partly in rem and partly in personam. It is in rem insofar as recover

patino provrem rev

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