Sie sind auf Seite 1von 63

REMEDIAL LAW REVIEW 2007

Case of Baez vs Baez; Santos vs COMELEC


Q: Again, what are the requirements of Execution Pending Appeal?
A:
1. There must be a motion filed either in the court of origin if the original
record is still there or in the appellate court if the same has already been
transmitted and court of origin has already lost its jurisdiction;
2. Based on the grounds of good reason;
3. The good reason must be stated in the special order.
In the case of Far East Bank vs Toh Sr., the Supreme Court ruled that old age
constitutes good reason. But as you would see, the counsel therein is no other
than the First Gentleman Mike Arroyo.
While in Santos vs COMELEC, the Supreme Court held that a valid exercise of
the discretion to allow execution pending appeal requires that it should be based
upon good reasons to be stated in a special order. The following constitute good
reasons and a combination of two or more of them will suffice to grant execution
pending appeal:
1.) Public interest involved or will of the electorate;
2.) The shortness of the remaining portion of the term of the contested office; and
3.) The length of time that the election contest has been pending.
Q: To whom the Writ of Execution is directed?
A: To the Sheriff, not to the Clerk of Court. In the case of Quitalag, the sheriff
may be liable for contempt of court but not the parties who did not comply with
the Writ of Execution because precisely the Writ of Execution is addressed to the
sheriff.
Section 27, Rule 39
Q: If a Mercedes Benz was sold at auction to satisfy a judgment. When it may
redeem?
A: It cannot be redeemed because redemption applies only to Real Property
wherein a deed of sale was executed.
Q: What if the Judgment Obligee purchases the property, who may redeem the
property?
A:
1. The judgment obligor or his successor in interest; and
2. A redemptioner.
Q: Who is a redemptioner?
A: A creditor who has a lien by virtue of an attachment, judgment or mortgage on
which the property was sold, subsequent to the lien under which the property
was sold.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Q: Supposing one hectare of land was sold at public auction. The Judgment
obligee was the highest bidder. The judgment obligor may redeem that. But in
this example, who would the redemptioner be? Under what lien is the property
sold?
A: The property here is being sold under a lien of a judgment, but more
particularly, this is a sale on execution under Rule 39 as distinguish from other
sale from foreclosure or sale on attachment. Supposing B is a redemptioner,
what would be his lien be to make it subsequent under which the property was
sold? That will be your number 5 question in your midterm exam. Give an
example of redemption by a redemptioner.
Q: May a property be sold only pursuant to a judgment? May a property be sold,
already auctioned, is it only pursuant to a judgment?
A: Under Rule 57 Section 1, an attachment may be applied for at the
commencement of the auction
Supposing Mr. A filed a case against Mr. B for recovery of sum of money for P10
million. If A want to secure a favorable judgment, he will seek the attachment of
the property. He will apply that at the commencement of the action.
So if the action started in 1990, then it will not be finish in one year time, chances
are it will be finish in 10 to 15 years time. But since you applied for attachment, it
is already attached and the property has become in legal custody because of the
writ of preliminary attachment. But it does not mean that this property can no
longer be legally dealt with.
Suppose the same property was subject of a mortgage or judgment or even
another attachment, all these lien are subsequent to the lien under which the
property will be sold if A wins because if he does, he wont avail of Rule 39 but
rather Rule 57. The property is sold not on execution but on attachment.
Because of this, all other persons who dealt with the property subsequent to the
issuance of the Writ of Attachment are all redemptioner.
Pag attachment kasi, it happens sa umpisa pa lang ng kaso. Pag tapos na yung
kaso, you do not avail of attachment but rather execution.
NOTE: So if the property was sold in execution, chances are there will be no
redemptioner Why? Who will deal with a property which is already subject of a
judgment? But if it was sold on a mortgage prior to a judgment, the judgment
oblige is a redemptioner because his lien is subsequent to the lien under which
the property was sold.
Let us go now to the period, remember this only applies to Real Properties.
Q: What is the period of redemption?
A: One (1) year from the registration of the certificate of sale

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


For example, the certificate of sale was registered on January 1, 2000. The
redemption period expires on December 31, 2000. Period is reckoned not from
judgment, not from execution, not even from sale but from registration of the
certificate of sale.
Q: What is the period within which a redemptioner may redeem the property?
A: Sixty (60) days after the last redemption
Q: Let us say X is a redemptioner, at the auction sale, he was the purchaser. He
purchased it in January 5, 2000. If you count sixty (60) days, roughly it will be on
March 7, 2000. Suppose by May, Y who is the judgment obligor would like to
redeem it, could Y still redeem it?
A: Yes, Y is the judgment obligor and he has one (1) year to redeem it from the
registration of the certificate of sale. May palang eto eh.
Q: Supposing W, a redemptioner, would like to redeem it from X who was the first
purchaser, being a redemptioner, in May, can W purchase that?
A: X purchased it from January 5, May na ngayon, no more because a
redemptioner has only sixty (60) days from the last redemption.
Q: Now suppose X redeems it on December 5 of the same year, may it be
redeem by W of January of the following year?
A: Even if it exceeds from the one (1) year period, if it is redeemed from the last
redemptioner, the sixty (60) day period prevails over the one(1) year period. So
even in January, W can still redeem it because it is still within the sixty (60) day
period from the last redemption even if it exceeds the one (1) year period.
Q: How about Y, the judgment obligor, can he redeem it by January even if it
exceeds the one (1) year period to which he was entitled to redeem?
A: Yes, because if it is given the right to redeem within a period of sixty (60) days
to a redemptioner, the more reason you have to give it to a judgment obligor
even beyond the (1) year period provided that the redemption is from a
redemptioner.
Q: Suppose Y who is a judgment obligor in the auction sale, purchase it in
February 5, can the redemptioner redeem it from the judgment obligor?
A: February 5, sixty (60) days therefrom. No, because the property has returned
to its owner. The owner of the property is the judgment obligor. Pag binili na ng
judgment obligor, there can be no further redemption.
NOTE: In redemption, if the judgment obligor redeems it within the one (1) year
period, there can be no further redemption. But if it is redeem by a redemptioner,
there can be continuous redemption, within the period of sixty (60) days even
beyond the one (1) year period. Rationale is the with one (1) property, the law
provides payment as many obligation as possible
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Q: Now, how much shall be paid?
A: You have to distinguish it if he is a Judgment obligor or a redemptioner. In the
former, it includes the purchase price and all other expenses plus one percent
per month interest while in the latter, purchase price and all other expenses plus
two percent interest because you only have a maximum period of two months to
redeem.
Q: What if after the property was sold it is not enough to satisfy the judgment?
A:
1. First, ask for the examination of the judgment obligor;
2. Then ask for the examination of the obligor of the judgment obligor
because the obligor of the judgment obligor may remit payment directly to
the judgment oblige without going through the judgment obligor.
3. Sale of ascertainable interest. Dito na magtatapos remedy na to.
Q: During the one (1) year period to redeem, yung mga rents, income of
property, to whom shall it belong?
A: Sa judgment obligor pa rin
Q: But how about the judgment oblige, what can he get out of it?
A: All these earnings will be added later on, in the meantime, you do not take it
from the judgment obligor.
Q: When will the purchaser take possession and ownership over the property?
A: Upon the expiration of the period of redemption. How? Consolidation of title
na. You do not have to go to court anymore. Pag may tao pa don, writ of
possession tayo as held in the case of Idolor vs CA. Once consolidated, tapos
na.
Remember, if the judgment obligor is the one who redeems the property, he may
immediately ask for consolidation because the property has already returned to
the original owner. But if the purchaser is the redemptioner, he can have it
consolidated only after the one (1) year because of the right of the judgment
obligor to redeem the property within the period of one (1) year from registration
of the certificate of sale.
Section 46, Rule 39
Surety here is not only subsidiarily liable but also principally liable provided that
he is notified. And importante ditto eh yung notice sa surety.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Section 47 Rule 39
In relation to Motion to Dismiss. It is res judicata. Effect of Domestic Judgment.
a) Action in Rem- it is conclusive upon the thing itself
b) Action in Personam- conclusive only upon the party
c) Conclusiveness of Judgment- it is a form of res judicata. But as
distinguished from bar by prior judgment, there is no identity of cause of
action in conclusiveness of judgment.
Section 48 Rule 39
Foreign Judgment
In relation to Rule 76 and 77, re probate of a will allowed abroad.
To implement a foreign judgment, you have to file an action to enforce a foreign
judgment- the subject matter is the action.
Remember now the remedies that we have already discussed. These are the
following:
1. Motion to Dismiss;
2. Dismissal of Actions;
3. Demurrer to evidence;
4. Judgment on the pleadings;
5. Summary judgment;
6. Motion for New Trial and/ or Motion for Reconsideration;
7. Petition for Relief from Judgment/ Appeal
8. Appeal proper; and
9. Annulment of Judgment
RULE 40
This rule applies only to Inferior Courts. Remember our jurisdiction under BP 129
as amended by RA 7691
NOTE: No judgment of the MTC/ Inferior Court go directly to the Court of Appeals
or Supreme Court. NEVER! As an exception to the rule, when the MTC or inferior
court exercises its delegated jurisdiction. But if you would observe, this is not
really an exception because the MTC/ inferior court here is acting as an RTC,
hence its appeal is to the CA.
Q: When do we have delegated jurisdiction?
A: In cases of land registration and cadastral, the value of the property involved
does not exceed P100,000.00 and there being no opposition.
There are two procedures involved in the Inferior courts; they are the regular
procedure and summary procedure. Remember that we do not have summary
procedure in the RTC. So whether the Inferior court exercised regular or
summary procedure, the same is appealable to the RTC within the 15-day period
in cases of regular procedure, and 10-day period in cases of summary
procedure, counted from the notice or receipt of a copy of the judgment. From
therein, you file a notice of appeal or record of appeal as the case maybe.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Remember that MTC now can take cognizance of probate proceedings whether
testate of intestate, in cases of probate proceeding there can be multiple
appeals. In record of appeal, the court does not automatically lose jurisdiction, it
is only the subject matter appealed from.
Q: Where does the appellant files the notice of appeal or record on appeal?
A: It is filed before the inferior court/ MTC (court of origin)
Q: When does the appellate court acquire jurisdiction over the case appealed
from?
A: The appellate court acquires jurisdiction not only from the filing of the notice of
appeal or record on appeal, but upon payment of the correct docket fees.
NOTE: The venue of transmittal of record is in the same region or in the same
district that of the court of origin. Upon receipt of the appellate court, the clerk of
court gives notice to the parties that the record has already been transmitted and
the appellant, upon receipt of such notice, shall submit a memorandum within 15
days. Failure to submit such memorandum is a ground for the dismissal of the
appeal. On the otherhand, the appellee shall also be required the same
memorandum as required within the same period. Upon submission, judgment
may be rendered.
Rule 41 section 39 is important and said rule also applies to Rule 40.
Q: When does the court of origin loses jurisdiction over the case? When is
appeal perfected?
A: In cases of Notice of Appeal or record on appeal, upon the filing thereof in due
time, as to the appellant. The court loses jurisdiction over the case upon the filing
of notice of appeal or record on appeal, as the case may be, and expiration of the
period to appeal of the other parties.
Section 8 of Rule 40 is also important. Bagong provision to. Dati, when the
Inferior court dismisses the case on the ground of lack of jurisdiction over the
subject matter and on appeal it was affirmed by the RTC, it will be dismiss
without prejudice of re filing the case, hence double docket fee. Now, the RTC
will automatically assume jurisdiction if it has jurisdiction. The distinction between
the first and second paragraph under the said section is the reception of
evidence.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


RULE 41
It speaks of Judgment or Final order of the RTC exercising original jurisdiction
appealed to the Court of Appeals.
Section 2 provides us for the Modes of Appeal:
1.) Ordinary Appeal under Rule 41
2.) Petition for Review under Rule 42. The RTC here is acting in its appellate
jurisdiction. It was appealed to the RTC then to the CA by petition for review.
3.) Review on certiorari under Rule 45
Both in petition for review and review on certiorari, you can ask for extension of
time to file the same. In these three cases, all emanated from the RTC.
Q: Again, when is appeal perfected? When the court does lose jurisdiction?
A: Rule 41 Section 9
Q: What are not appealable?
A: Just familiarize yourself with the enumeration provided for in the rules. The
common ground under section 1 is that if you allow appeal on this matter, there
will be no end to litigation.
Upon perfection of appeal, the clerk of court of the RTC transmits the record but
he must ascertain the same that it is complete.
Remember the Domingo Neypes doctrine, Fresh day rule applies also to Rule
41 upon denial of the Motion for New trial or reconsideration.
Remember again, no decision of the inferior court can be brought directly to
the Court of Appeals or Supreme Court unless the MTC is exercising its
delegated jurisdiction.
Q: How again do you make an appeal here?
A: By filing a notice of appeal or record on appeal. Notice of Appeal is not
required in multiple appeals, only in cases of record on appeal where every order
of the court is appealable. Record on appeal is also applicable to inferior courts
and the court loses jurisdiction only as to the subject matter of the appeal, as to
the other issues, the same will continue to be heard by the court of origin.
NOTE: Section 8 Rule 40 is not applicable to the RTC. But Section 9 of Rule 41
is applicable both as to the MTC and RTC.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Q: When is appeal perfected? Supposing in a case, Mr. X file a motion for
reconsideration, Mr. Y filed a Motion for New Trial and Z filed a notice of appeal.
A: Appeal is not perfected to Mr. X and Mr. Y because they did not file a notice of
appeal. Appeal is perfected only as to Z, upon the filing of notice of appeal in due
time, appeal as to Z is perfected. What is in due time? Within 15 days from
notice or receipt of judgment.
Q: Will appeal be ever be perfected to X and Y?
A: Yes, only when they file a notice of appeal in due time.
Q: What if a motion for new trial or reconsideration is denied, when will they file?
A: Remember the fresh day rule, within 15 days from notice of denial. That is
your Domingo Neypes doctrine.
Q: When does the court lose jurisdiction?
A: Upon perfection of appeal AND expiration of the period to file an appeal as to
the others.
Q: Upon appeal, can A now file a motion for execution pending appeal with the
trial court?
A: Yes, under Rule 39 Section 2 in relation to Rule 41 section 9, a motion for
execution pending appeal will be allowed upon motion with notice to the adverse
party, as long as the original record has not been transmitted to the CA.
Q: By what authority?
A: Under the residual jurisdiction.
Q: When the record has already been transmitted, where will you file?
A: To the Court of appeals, but note, the CA can NEVER issue writ of execution
but only an order directing the Trial court to issue a writ of execution.
It is incumbent now for the clerk of court of the RTC to transmit the record to the
CA and therefrom, the duty shifts to the clerk of court of the CA.
Q: Rule 40 vs Rule 41
A: Under Rule 40, the appellant files a memorandum upon receipt of the notice
of the order of the court directing him to file the same within 15 days from receipt.
A memorandum is a summary of what transpired in the trial court and does not
require a format. Under rule 41, appellant files an appellants brief and the
appellee an appellees brief within the period of 45 days and thereafter an
appellants reply brief (discretionary) within the same period. The Briefs are
mandatory and non compliance of which is a ground for the dismissal of an
appeal as provided for in Rule 50 Section (f). The substance of the appellants
brief is the arguments, discussion in the assignment of errors.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


NOTE: If you are using the record of the case, you do not use your personal
record but rather the record on the appellate court.
Just remember that Rules 41, 44 and 50 are related to each other.
RULE 42
The Regional Trial Court here is acting or exercising its appellate jurisdiction. The
case started from the MTC, appealed to the RTC and a petition for review with
the CA. Examples are cases of Unlawful detainer and forcible entry.
Appeal here is by petition for review; distinguish the same from certiorari under
Rule 45. Under Rule 42, it is similar to an original complaint. Errors committed by
the Trial Court (MTC) and also by the Appellate Court (RTC). You do not file a
notice of appeal or record on appeal here, what you file is a petition for review. It
also requires payment of the correct docket fees. Upon the receipt of the Petition
for Review, the Court of Appeals may either grant or dismiss the petition on the
ground of:
1. Not meritorious;
2. Filed manifestly for delay; or
3. Issues raised therein is not that substantial which requires consideration of
the court.
If it is granted, it will require the parties to file a comment, not a motion to
dismiss.
RULE 43
Remember that wala ng CTA dyan
Just remember the five (5) bodies, CA, CTA, COA, COMELEC and
Sandiganbayan.
In the Civil Service Commission, the appeal is brought to the CA.
In the National Labor Relations Commission, the appeal is brought to the CA
under Rule 65. If you would recall, there is no really appeal from the decision of
the NLRC, but because of the St. Martin Funeral Homes case, as reiterated in
the case of Rubberworld, appeal may now be made to the CA but not as an
ordinary appeal, it is under Rule 65. What is peculiar about the said rule is that
you can raise pure question of facts.
In the cases cognizable by the HLURB, the same maybe filed before the HLURB
arbiter. In case of an appeal, it can be made to the HLURB Commissioner, then
appeal to the Office of the President. The decision of the Officer of the President
is appealable to the CA.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


In the cases cognizable by the DARAB, appeal to the secretary. You need not
make an appeal to the Office of the President since it can be argued that the
Secretary is the alter ego of the President. Then from there, you appeal to the
CA.
RULE 45
Section 1 provides that it limits only to three (3) tribunals:
1) Sandiganbayan;
2) Court of Appeals;
3) Regional Trial Court; and
4) Any other body authorized by law.
Issues raised therein are only pure questions of law.
Q: Do not confuse this with Rule 65. Most Bar questions, they asked you to
distinguish Rule 45 from Rule 65. The two may be distinguish:
A:
1. Under Rule 45, it is a mode of appeal while in Rule 65 it is a special civil
action;
2. Under Rule 45, it needs to comply with the requirements of an appeal, you
do not change the parties involved therein and you have 15 days to make
an appeal from notice of the judgment or order. While under Rule 65, this
is a separate action, hence it need not comply with the requirements of an
appeal. The parties herein is the court or officer or tribunal and you have
60 days to file a petition for certiorari from notice of the judgment.
Q: Is it necessary for the court to acquire jurisdiction over the person of the
parties?
A: In the case of the petitioner, the Supreme Court acquires jurisdiction over his
person upon the filing of the petition while in the case of the respondent, the
court acquires jurisdiction over his person upon receipt of the order directing him
to file a comment.
Q: Suppose the petition is dismiss, is it necessary to acquire jurisdiction over the
person of the respondent?
A: Yes, otherwise the dismissal order will not be effective upon the respondent
over which the court did not acquire jurisdiction.
Q: What do you raise here?
A: Only pure questions of law. If what was raised was facts and law, the
Supreme Court must dismiss it.
NOTE: In the Court of Appeals, what can be raised are pure questions of fact
and law or questions of fact only. In the Supreme Court, questions of law only
without facts because the Supreme Court is not a trier of facts and is not
suppose to scrutinize and accept evidence.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


RULE 46
Original cases filed. Concurrent Jurisdiction. Certiorari Prohibition and
Mandamus, as well as quo warranto and annulment of judgment of the RTC is
originally filed to the CA. But remember, even if its concurrent, you do not have
the option, you still have to apply the hierarchy of courts.
RULE 47
Annulment of Judgment, this is your last remedy available. It refers to judgment
or final order of the RTC. It is exclusively cognizable by the CA.
Q: Suppose B filed a case for a sum of money in the MTC against A. A decision
was rendered in favor of the latter. No motion for new trial, no motion for
reconsideration and no appeal was taken therefrom. There is extrinsic fraud. He
filed an annulment of judgment, where will he file it?
A: Not with the CA but to the RTC. Remember, walang didiretso from MTC to CA
or SC.
Q: What are the grounds for the annulment of judgment?
A:
1. Extrinsic Fraud (prescriptive period is 4 years from the discovery of fraud);
2. Lack of Jurisdiction (no prescriptive period but may be limited to estoppel and
laches)
Q: Who is the defendant here?
A: The Principal defendant here is the RTC but you have to implead the private
respondent as a necessary party. Even if the principal defendant is the tribunal, it
should not take active participation in the case.
Q: What is the effect?
A: If it is grounded on extrinsic fraud, the court may grant a new trial. If it is based
on lack of jurisdiction, it is without prejudice of refilling the case.
RULE 48
Preliminary Conference here is at any time.
RULE 50
Read Section 1
RULE 52
Motion for Reconsideration, same ground with Rule 37. Filed only with the CA.
RULE 53
New Trial based only on Newly Discovered Evidence. Why? The CA now can
receive evidence unlike before.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


RULE 55
Summons
RULE 56
Amended already, no more automatic appeal.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

PROVISIONAL REMEDIES
We are now on provisional remedies from Rule 57 - 61. So there are 5 provisional
remedies. Just remember the word AIRRS.
But if you are asked, don't say attachment as a provisional remedy but rather it is
preliminary attachment. Don't say injunction as a provisional remedy but rather
preliminary injunction. As to receivership, yes it is both an action and a
provisional remedy. Technically, it is not the receivership which is the provisional
remedy but rather appointment of a receiver because in receivership it is also a
kind of action. And then you have replevin or delivery of possession of personal
property. And then finally you have support pendente lite. Support is not a
provisional remedy but it is support pendente lite which is a provisional remedy.
Now, let me give you a bird's eye view of these provisional remedies.
First, because they are provisional, they cannot stand alone. Being provisional
remedies, they are dependent, contingent, or adhere to a principal action. So that
you cannot find an action for preliminary attachment. It must always be adhered
to the principal action.
Q: Because of that, what are the principal actions to which these provisional
remedies attach?
A:
1.) As to preliminary attachment, the principal action is recovery of real or
personal property. If you try to look at Section 1 Rule 57, you will find out that
all the actions there are for recovery of either real or personal property.
2.) As to preliminary injunction, the principal action is injunction although these
seldom find, in actual practice, an action for injunction because it always goes
with some other actions. Like for example specific performance and injunction
plus damages with prayer of preliminary injunction. Is there an action which is
injunction? Yes. Under Section 4 of Rule 39.
3.) As to receivership, receivership is the principal action. The provisional remedy
is appointment of a receiver. If you go and look at Section 4 of Rule 39, you
will see that receivership is an action.
4.) As to replevin, the principal action is recovery of personal property. In
replevin, a foreclosure on mortgage is possible.
5.) As to support pendente lite, the principal action is support.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

Q: Which court has jurisdiction over these provisional remedies?


A: General answer is because they are contingent, that court which has
jurisdiction over the principal action also has jurisdiction over these provisional
remedies. Precisely because they adhere to the principal action.
But let us be more specific, because prior to the 1997 Rules of Court injunction,
for example, is cognizable only by the RTC. But with RA 7691 (expansion of the
inferior courts) and looking at Rule 70 (Sections 15 and 19, all about injunction),
therefore under the present rules, the preliminary injunction is now cognizable by
the inferior courts. Before the effectivity of the 1997 Rules, that was applied also
by jurisprudence only on unlawful detainer. But now it applies to both unlawful
detainer and forcible entry as is specifically provided under Rule 70.
Q: How about support pendente lite which adheres to an action for support?
A: Remember that it cannot be taken cognizance of by the inferior courts
because support is an action which is incapable of pecuniary estimation.
Therefore, support pendente lite is only cognizable by the RTC because support
to which it adheres is incapable of pecuniary estimation. Exception: In criminal
cases. Because the present rules on criminal procedure speaks that once a
criminal case is filed, the civil aspect is deemed instituted with it under Rule 111.
Hence, if the action is criminal in nature but cognizable by the inferior court and
the prosecution includes the civil action for support, then support pendente lite
can be taken cognizance of by the inferior courts. Example: complaint for
seduction which is cognizable by the inferior courts. And together with that you
pray for the acknowledgment of the child (suppose merong anak) and you pray
for support pendente lite. In this instance the support pendente lite is taken
cognizance of the inferior courts.
In Receivership: both inferior courts and RTC.
In Replevin: both inferior courts and RTC.
In Injunction: both inferior courts and RTC.
In Attachment: both inferior courts and RTC depending now on the principal
action to which the provisional remedy attaches.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

Q: What are the requirements in applying for these provisional remedies


attaching to the principal action?
A:
1.) In case of preliminary attachment, what is required is the affidavit and bond.
2.) In case of preliminary injunction, the requirement is a bond and a verified
petition.
3.) In case of receivership, also a bond and verified petition.
4.) In case of replevin, affidavit and bond.
5.) In case of support pendente lite, only a verified application. No bond.
Q: How do you secure, aside from these requirements, the writs for these
provisional remedies?
A:
1.) In case of preliminary attachment, you may secure it ex parte. Although the
writ cannot be implemented ex parte but it can be issued ex parte.
2.) In case of preliminary injunction, as a general rule you cannot secure it ex
parte under Section 5, Rule 58, although in cases of urgency, that injunctive
relief for a period of 72 hours can be granted summarily (meron pa din notice
and hearing for due process). That is how stringent in applying for injunctive
relief.
3.) In replevin, you cannot get it ex parte.
4.) In support pendente lite, there is a peculiar provision under Section 2 (Rule
61) wherein the respondent, within a period of 5 days from notice, is bound to
file his comment. And if he does not file his comment, the case will be heard
on the application only (Section 3) within 3 days.
Q: Once the writ is granted or issued, how do you discharge the writ?
A:
1.) In case of preliminary attachment, it may be discharged under Sections 5, 12
and 13 of Rule 57. Cash deposit or counter bond (Secs 5 and 12) or a motion
questioning the propriety or regularity of the issuance of the writ (Section 13).
2.) In case of preliminary injunction, it cannot be discharge it by a bond neither if
it be granted by a bond, although bond is required but a counter bond does
not discharge a writ of preliminary injunction.
3.) The same thing with replevin and receivership, you cannot discharge it with a
bond. You have to file a motion questioning the propriety or regularity of the
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


issuance of the writ.
4.) In support pendente lite, there is no bond. If the judgment is in favor of the
respondent, the support pendente lite must also be discharged because it has
no basis to stand with.

RULE 57
PRELIMINARY ATTACHMENT
Provisional remedy: Preliminary Attachment
Principal action: recovery of either real or personal property
Memorize Section 1 (the grounds) of Rule 57. Remember, you will appreciate
Rule 57 had you understood Rule 39 because there are cross-references
between these provisions. Section 7 of Rule 57 you will find out that that is also
practically the same or similar provision in Section 9-11 of Rule 39. Section 16 in
Rule 39 is Section 14 Rule 57, and Section 7 Rule 60 (Replevin). Try to analyze
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


it, pare-pareho. The 3rd party claimant will simply execute an affidavit. The sheriff
will not be bound to hold it but deliver it to the 3rd party claimant. Yang v. Valdez
(was given in the bar about 5 years ago) - the 5 day period of redelivery bond.
You have now to distinguish a bond from a counter bond. Later on, remember
that it is different from a supersedeas bond which you have studied and under
Settlement of Estate. Here, we are dealing with bond and counter bond. Bond is
required of the applicant. Counter bond is required of the person against
whom the application was filed. Deposit can be cash either on the part of the
plaintiff or the defendant as the case may be.
Q: Take note of Section 1. When can you file or apply for a writ of preliminary
attachment?
A: It says there at the commencement of the action or at any time before entry of
judgment.
Q: Bakit? Why should you not apply for a writ of preliminary attachment when
judgment has already been entered?
A: Because your remedy is not attachment but your remedy is execution under
Rule 39. Remember when we were discussing Section 27-29 of Rule 39
(regarding redemption and redemptioner), so that when a property was sold on
attachment, there are possible redemptioners because Section 1 says at the
commencement of the action, you already apply for the issuance of the writ of
preliminary attachment. And if the writ is issued and implemented, the sheriff, to
whom the writ is addressed, takes actual custody of the property if it is capable of
manual delivery. In the case of replevin, ibibigay ng sheriff sa applicant after 5
days if there is no redelivery bond is filed. But in the case of preliminary
attachment, kukunin niya yan for safe keeping. And it will only be sold after
judgment is rendered in favor of the plaintiff (applicant).
Q: Once a property has been replevined and again it was attached, is it still
valid?
A: Yes. once the property is replevined it can still be attached. But if the property
is attached it cannot be replevined. Because in attachment, you may not take
possession but in replevin you have to take possession.

Q: A 3rd party can deal with the property that has been attached. Suppose it was
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


mortgaged with a bank after it has been attached, is it possible?
A: Yes. The mortgage becomes a lien subsequent to the lien under which the
property was sold if ever the plaintiff wins in the case.
You cannot just attach right and left if there is no ground. That is why let me
emphasize Section 3 of Rule 57.
1. There must be a valid cause of action. Because preliminary attachment is
only provisional so if the cause of action is invalid, the preliminary attachment
is also invalid.
2. There must be a valid ground among the 6 enumerated grounds under
Section 1.
3. There must be no other security. Or if ever there is, the security is not
sufficient.
4. The order must be equivalent to the sum for which you are asking.
NOTE: These 4 requirements must be contained in an affidavit. So your affidavit
is pro forma or insufficient if it does not allege these 4 basic requirements as
enumerated under Section 3. Aside from that affidavit of merits, bond must
accompany it.
Q: What do you notice in the grounds under Section 1?
A: Yung first three, it is a kind of action. Yung last three, it is the party involved.
First action, it is an action for specific amount of money and damages other than
moral and exemplary damages on an action arising from law, contracts, quasicontracts, delicts, quasi-delicts against a party who is about to abscond in fraud
of creditors.
Q: Why other that moral and exemplary damages?
A: There is no basis. The basis must be personal, wounded feelings etc.
Q: Ano yung mga requirements niyan?
A:
1. Your actions should be for sum of money and damages, other than moral and
exemplary damages.
2. Your cause of action is based on a law, contract, quasi-contract, delict, or
quasi-delict.
3. It must be directed against a party who is to depart from the Philippines with
intent to defraud.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

Second action, an action also for recovery. But look at the defendant here, the
defendant is a public officer, officer of a corporation, attorney, factor, broker,
agent, or clerk. In other words there must be a fiduciary relationship between
the applicant and the respondent.
Third action, recovery of possession, this time, against a party who removed,
disposed, or does not disclose it, or who hid these properties.
Q: What is then a common denominator here?
A: There is an element of FRAUD.
When you go to paragraphs d, e, and f the phraseology is different. It is against a
party this time, not anymore to the kind of action but to the kind of person who is
a party defendant.
In paragraph d, a person who is guilty again of fraud in contracting a debt or
obligation upon which the action is brought or in the performance thereof.
Javellana v. D.O. Plaza Enterprises, Inc., L-28297, March 30, 1970 illustrates
the rule prior to the 1997 Rules of Court.
Facts of this case: There was a simple sale of property, let's say the purchase
price was P100, 000.00 D.O. Plaza paid 50% and the balance was secured with
postdated checks. Plaza took possession of the property sold. Later on, the
checks, which were in payment of the obligation contracted, bounced. It all
bounced. An action for sum of money was filed with prayer of preliminary
attachment using that the respondent was guilty of fraud in contracting its
obligation. When it reached the Supreme Court, the SC said no. Preliminary
attachment must be discharged because there was no fraud in contracting the
obligation but there was fraud in the performance thereof. And at that time, wala
pa yung term na in the performance thereof. Hence, the defendant here won in
the sense that the preliminary attachment was invalid.
That is why when they amended the 1997 Rules of Court, using the case of D.O.
Plaza, they included it in the present rules.
Paragraph e, is one against a party who tries to dispose the property again in
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


fraud of creditors.
SC case: So here is a businessman who was engaged in buying and selling. So
when he owed somebody a sum of money, that somebody filed a case against
this businessman and applied for a writ of preliminary attachment on the ground
that the businessman was disposing his property in fraud of creditors. The SC
said NO. He is disposing his property in line of his business precisely he is in buy
and sell. If he does not dispose his property, how will he ever be able to pay you.
The attachment was invalid.
Another SC case: Wherein the businessman who had a sari-sari store. A case
was filed against him for a sum of money and a writ of preliminary attachment
was applied for. The SC said YES, the writ of preliminary attachment was validly
issued because there was disposal of the property in fraud of creditors. Even if
the disposal was made in line of his business, the SC held that the disposal was
made at midnight and through the backdoor. So there is fraud.

NOTE: Paragraph f is peculiar because it speaks about his situation or


residence. So in this instance, any person who left the country and temporarily
reside there, you file an action and you can apply for a writ of preliminary
attachment. But take note of the last phrase there and those who may be served
by publication. So you cross-refer that to Section 15-17 of Rule 14 on Summons,
who must be served through publication. It applies only on actions in rem or
quasi in rem. Actions which are strictly in personam, summons by publication is
not allowed.
One of the objectives of a writ of preliminary attachment is to convert an action
which is strictly in personam to an action quasi in rem. Once you convert it, then
you can now serve summons through publication.
Q: In writ of preliminary attachment, there are three stages:
A:
1. Application. Together with the application is the order granting the application.
2. Issuance of the order or the writ of preliminary attachment.
3. Implementation or execution of the writ of preliminary attachment.
NOTE: The first two stages may be done ex parte. But the last stage must always
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


be with prior or contemporaneous service of summons. Hence that applied, you
can avail of paragraph f of Section 1 of Rule 57 in converting the action in to an
action in rem. Because the writ of preliminary attachment can be issued even
without service of summons.
In paragraph f, nakalagay dun that if a person cannot be found in the Philippines
or is temporarily residing out of the Philippines, then that can be a ground for
asking the court to issue the writ of preliminary attachment. But we said, it says
there further, and all those persons who may be served summons through
publication. But sabi natin, who are these persons who may be served summons
through publication? Ala yan diyan. So you go back to Section 15-17 of Rule 14,
Extra-territorial service. But we said that even if summons by publication is
allowed, that is only in cases where the action is not strictly in personam (quasi in
rem). Sabi natin, so contradictory apparently. Why? Because you are asking
precisely for a writ of preliminary attachment on that ground but you cannot serve
summons to a person if your action is strictly in personam. Sabi natin, hindi. Ang
explanation diyan is that in the application for the writ of preliminary attachment,
there are three stages. Yung una hindi mo kailangan ng summons. So you can
already apply, on the basis that the defendant is outside of the country. You apply
irrespective whether the summons can be issued or not because it can be issued
ex parte. But dito lang sa issuance. Pero pag hawak na yan ng sheriff,
iimplement na niya under Section 7, levy on attachment, hindi ka pwede mag
levy on attachment if the court has not acquired jurisdiction over the person of the
defendant. Kaya nakalagay diyan, prior or contemporaneous. Prior is Mangila
case. Contemporaneous sabay na ng pag implement ng writ of preliminary
attachment ang service of summons.
When the property has been attached, it does not mean that the property is
already yours. You have to wait for the judgment before you can dispose of the
property either by public auction or possess it as owner.
Q: Suppose the plaintiff loses under Section 20, what will answer for damages?
A: The bond will answer for damages.

NOTE: This is the peculiarity of rule 57. Unlike all other bonds which answer only
for damages, it is only in Rule 57 will the bond answer for the judgment. So you
underline the word judgment. Kasi dito mo lang makikita yan sa Rule 57.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Because in Rules 58-61, the bond answers for damages. While in Rule 57, the
bond answers for judgment. Ano'ng ibig sabihin nun? Sometimes damages can
be separated from judgment. But in most instances hindi. Let's say defendant is
ordered to pay P20,000 as principal obligation and damages of P10,000, so
hiwalay. In other cases the bond or counter bond only answers for the P10,000.
But in preliminary attachment, the bond or counter bond answers for the
P30,000, judgment and damages.
Do not be misled therefore by cross-references to Section 20 by the other rules.
Do you notice that? di ba puro cross-references. Section 8 of Rule 58, Section 9
of Rule 59, and Section 10, Rule 60 cross-refer to Section 20, Rule 57. The
cross-reference is correct but the difference is that the bond and counter bond in
all these provisional remedies answer only for damages. But in writ of preliminary
attachment because of its precedent section which is Section 19, which answers
for any judgment.
Q: How do you discharge the writ of preliminary attachment?
A: So the writ of preliminary attachment has already been issued or served as
the case may be. At any stage, you can always discharge the writ. Under
Sections 5, 12, and 13. These are important sections. Read that and you will note
the differences.
Q: What is the difference between Section 5 and Section 12?
A: Apparently, there is no difference. But if you try to analyze it, there is a
difference. The means to discharge are the same which is either a cash deposit
or counter bond, which you find in Section 5. If you go to Section 12, pareho din
ang means which is a cash deposit or a counter bond. Tignan niyo, sino ang
hihingi ng discharge of the writ? Siyempre that party against whom the writ was
issued. A is the plaintiff and B is the defendant. If A applies for preliminary
attachment and it was issued, who seeks for the discharge? Siyempre si B. Is it
possible that A, in an instance, may also seek the discharge of the writ?
Ordinarily no, but if B as a counterclaim, which is permissive, B will ask for a writ
of preliminary attachment against A. Thus A may also seek the discharge the
writ. A can file for a counter bond.
Section 5 speaks of a cash deposit or a counter bond. The counter bond will
answer for the judgment. The cash deposit will also answer for the judgment,
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


May pinagkaiba ba yun? Siyempre iba yun. Yung cash deposit, pera na yun. But
businessmen don't usually do that. What they do is through surety. And this is an
instance where surety is automatically impleaded without the requisite service of
summons in acquiring jurisdiction over the person of the defendant.
The difference is, in Section 5, the writ has not been implemented but it is already
issued. In the case of Section 12, the writ has already been implemented and
custody of the property sought to be attached is already in the hands of the
sheriff. The property is already in custodia legis.
Regardless in what stage, whether the writ was just issued but not yet
implemented or is contemporaneously implemented, the defendant can
immediately file for a counter bond. The counter bond, in effect, automatically
discharges the writ.
Section 13, another means of discharging the writ by filing a motion in court
questioning the propriety or regularity of the issuance of the writ. Whether the
writ has already been implemented or not, you can avail of Section 13.
Q: What are some grounds of irregularity in the issuance?
A: Insufficiency of the bond. Remember that the requirement for the issuance are
affidavit and bond. So if the affidavit for example did not contain the required
statement as provided for in Section 3 of Rule 57, then that is an irregularity. Or it
contains but it was untruthful. It was a lie, then it is irregular.
Or suppose the bond which was filed was very insufficient. There was a claim for
P20M and the bond was only P1M. So, the issuance of the writ is irregular and
improper.
Or it was issued by the court on the ground not specifically stated in Section 1 of
Rule 57. Because the 6 grounds there are EXCLUSIVE. Wala ng iba.
Remedies are Sections 5, 12 and 13. These are the means to discharge the writ
of preliminary attachment.
Q: Can one avail of Section 12 and avail again Section 13 in the same case?
A: Yes, it can happen. If I was a businessman and a case was filed against me
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


and a writ of preliminary attachment was issued against my sari sari store, and
the writ is implemented, I cannot proceed with my business because it is already
in custodia legis. I cannot start selling this because the property which has been
attached is reserved for judgment. Remedy? I immediately file a counter bond,
and the writ is automatically discharged. So i can again continue in selling my
merchandise. Meanwhile when there was no writ anymore, I'll file a motion before
the court claiming that the issuance was improper and irregular. I'm not praying
anymore for the discharge of the writ but rather for the discharge of the counter
bond. So answer is YES. One can avail both 12 and 13.
Q: How about Sections 13 and 5?
A: Hindi. Kasi yung Section 5 before the implementation.
I was saying, it is possible that the applicant loses in the case. It is not a
guarantee that when you ask for a writ of preliminary attachment, you will win in
the case. Even if you win in the case, but you may lose in your application for the
writ of preliminary attachment.
Q: How can this happen?
A: It can happen in such a way that during the proceeding, it was established that
the issuance of the writ was irregular and improper. And what does the rule
provide? The rule provides that if this happens right there and then before entry
of judgment, you already have to file for damages. You cannot file that after entry
of judgment because you are considered to have waived your right. And
remember Section 46 of Rule 39, you can file now a case against the surety even
without impleading the principal. In like manner, provided there is notice, you can
go after the surety if it is a counter bond or surety bond.
Q: How about a 3rd party claim, which you find in Section 14 of Rule 57?
A: If there is a 3rd party claim, the same provision as you find in Section 16 of
Rule 39 applies. The 3rd party claimant executes an affidavit, gives it to the
sheriff and then the sheriff will deliver back the property, which has been
attached, to the 3rd party claimant unless the applicant secures the sheriff with
another bond. Pareho rin yan sa Replevin, Section 7 of Rule 60 and Section 16 of
Rule 39.
NOTE: Common error of the students think that since the 3rd party claimant files
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


his claim, then the 3rd party claimant should file for the bond. Atty. Brondial
corrects that it is not. The applicant for the writ who should file the bond without
prejudice, of course, to a filing a case against the 3rd party claimant who filed a
3rd party claim frivolously and fraudulently. And that case can be threshed out in
the same action or even in a separate action.

RULE 58
PRELIMINARY INJUNCTION
Provisional Remedy: Preliminary injunction
Principal Action: Injunction
We said you find an action for injunction in Section 4 in Rule 39. But seldom will
you find an action filed specifically for injunction only. It is coupled always with
other causes of action. Like damages, or recovery of property with injunction and
prayer for preliminary injunction and TRO.
Q: When do you apply?
A: We said any court has jurisdiction over injunctive relief.
It is often said that SC has no jurisdiction over an action for injunction. Of course
not, in the sense you do not file an original action with the SC. But if your action
is certiorari which is cognizable by the SC, you can ask for injunction.
Madaling intindihin ito ngayon, these are always in the papers. Ngayon,
maraming mga pulitiko ang hinahabol at dinidismiss, kaya they are all filing
injunctive relief. They are praying for annulment of the order of dismissal or
cancellation of the order of dismissal with prayer for injunction and writ of
preliminary injunction. Where do they go? To the CA because the defendant here
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


is the DILG. So pwede yun.
While injunction can be availed of in any court, including the SC, but if you read
cases and statements to the effect that you cannot file for an action for injunction
to the SC it is because it is not a court of original jurisdiction over this action
except certiorari, prohibition, mandamus, quo warranto, habeas corpus.
Q: What are the requirements in order for a party to file an injunction with prayer
for preliminary injunction?
A: This basic requirement is a right of the applicant.
1. First requirement: The applicant must have a right. This right must be
actual, existing and valid and not just an inchoate right or a right not in esse
(substantial).
Example of an inchoate right is the property of your parents. And you claim
to be an heir. You are not entitled to the property unless your parents die.
Your right to the property is just inchoate.
2. Second requirement: There must be a violation of that right or threatened
violation. So the violation may not be actual. It can only be a threat and you
can already seek protection through injunction.
3. Third requirement: The violation or threatened violation will result in
irreparable damage and injuries.
Take note of these three fundamental requirements.
Example is the Idolor case.

NOTE: Preliminary injunction is preparatory to injunction. TRO is preparatory to


preliminary injunction. And within that TRO is the 72 hour period of the TRO.
Tatandaan niyo to a.
Preliminary injunction has no time frame. After trial that can become permanent.
But remember that a preliminary injunction is a provisional remedy attached to
injunction. So when a preliminary injunction has become permanent, it means
that you already won the case of injunction. But not the TRO, because the TRO is
preparatory to preliminary injunction. That is why there is a time frame in the TRO
which is 20 days in cases of the RTC and MTC and 60 days of CA.
Q: The requirement is verified application and bond, when do you apply for this?
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


A: You apply for preliminary injunction at any time in the course of the action
even at the commencement of the action or anytime thereafter but before
judgment.
Q: Preliminary injunctions are of 2 kinds:
A: Prohibitory injunction or mandatory preliminary injunction.
In prohibitory injunction, you seek to maintain the status quo. In mandatory
injunction, you seek to return to the status quo.
Let me illustrate: Suppose when you go home tonight, you found your home
without electricity because it has been cut by MERALCO for non-payment of your
electric bill. So you want a return to the status quo, so you file for a mandatory
injunction, mandating the MERALCO to return electricity to your residence.
Suppose when you arrived at home what you got was a notice of disconnection,
may ilaw pa kayo. The notice of disconnection is a warning. It is a threat of a
violation of your right or violation of your contract. So what do you file?
Prohibitory injunction, you seek to maintain the status quo of having lights in your
house.
Q: Can you get injunctive relief ex parte?
A: In no way. It must always be after hearing. You cannot get injunctive relief ex
parte. I would like to emphasize there as to where you are applying because this
has always been a case for discussion. If you apply for the writ for injunctive relief
before a multi-sala court, there are 2 notices necessary for issuance of the writ of
preliminary injunction.
Q: Ano ba ang multi-sala court?
A: There is only one RTC Manila. But there are many salas, RTC Branches 4548, etc. Quezon City marami din yun. Yan ang tinatawag na multi-sala. Pag 2 na
yan, multi-sala na yan.

The rules provide that when you apply for injunctive relief before a multi-sala
court, the executive judge, even before hearing the case, must give notice of
raffle. Raffle pa lang, may notice na dapat. So that if there is no notice of the
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


raffle date, it is already violative of the due process clause of the constitution.
Kung single sala, wala na. Ang notice mo ay notice of hearing because hearing is
mandatory. But if it is in Metro Manila or if it is a multi-sala court, 2 notices,
Notice of raffle and notice of hearing. So ang ipapadala munang notice is
when is the raffle date and your failure to attend after notice, you waive your right
to be present at the raffle. And then later on is notice of hearing.
During the hearing, the applicant should present evidence and the defendant
should present his evidence. Ordinarily, what is given is TRO. This TRO, if it is
issued by the RTC or MTC, is good only for 20 days. Upon expiration, it cannot
be renewed. It is grave abuse of discretion on the part of the court to extend even
upon agreement of the parties cannot and should not be extended. In the case of
the CA, it is 60 days.
Q: Where do you count the 20 day or 60 day period as the case may be?
A: From issuance.
I would like to find out, that every TRO cannot be granted ex parte except on a
very urgent matter where the hearing can be done summarily. In the case of a
TRO which is good for 72 hours, this time from notice.
Q: Why 72 hours?
A: Kasi dito sa Pilipinas, ordinarily non-working day ang Saturday and Sunday.
So hindi pwedeng 48 hours baka kasi pumatak dun sa Saturday or Sunday. Kaya
72 hours because it is 3 days, kahit yun pumasok ng friday ng hapon, papatak
yun ng lunes. O pag binigay yang ng saturday, papatak pa din yan ng lunes.
If the court continues your 72 hour TRO to a full 20 day TRO, the 72 hours will be
included in the 20 days. This time counted from the issuance of the TRO of the
72 hours.
Q: Why 20 days?
A: It is because this is roughly 3 weeks. And within a 3 week period, the court
must hear whether or not to grant the writ of preliminary injunction. The court is a
very busy body and you cannot set it for hearing immediately because there are
other cases filed before it.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Q: How do you discharge the writ?
A: You cannot discharge the writ through a counter bond. The only way is to
question the propriety or regularity of the issuance. But even then, chances are it
will just be denied. Kaya pag na issue ang TRO for 20 days, wait ka na lang after
that period. That's why it's not that long because it is really to be threshed out
whether there was violation of the right, whether it will cause irreparable damage
or injury.
Any action, if there is a violation of a right, you can ask for injunctive relief.
How about damages, you are cross-referred to Section 20 of Rule 57. But the
bond here answers only for damages.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

RULE 59 RECEIVERSHIP
When we talked about receivership it is both a provisional remedy and a principal
action. Although it can happen that receivership is attached as a provisional
remedy to an action for a recovery.
Q: What is the principal action for receivership?
A: If the receivership is used as a provisional remedy, the principal action here is
for recovery of property whether real or personal.
Q: What would be the jurisdiction?
A: Jurisdiction shall depend upon the principal action. It can be taken cognizance
by the inferior court or the regional trial court. You cannot file it to the Court of
Appeals or the Supreme Court. You only file original actions in the SC or CA in a
very peculiar actions and we already know that when we studied jurisdictions.
Concurrent jurisdictions like certiorari, prohibition, mandamus, quo warranto,
habeas corpus.
Q: If you file an annulment of judgment of the MTC, where will you file it?
A: We do not apply Rule 47 because it is for the order of the Regional Trial
Court, we apply the general rule that no actions on appeal can go to the CA or
SC because it is a judgment of MTC. RTC has jurisdiction even though it is
annulment of judgment.
If receivership can be taken cognizance depending on the principal action, but if
the principal action is receivership itself since receivership may be the principal
action. While preliminary injunction can never be the principal action, what is the
principal action there is injunction. In receivership it may be a principal action or
provisional remedy. If it is a provisional action it must attached to a principal
action which is recovery. But unlike attachment, Sec. 1 Rule 57, states the
grounds for attachment. Sec. 1 Rule 59 also gives the different kinds of instances
where you can apply for receivership.
Q: What are these instances?
A: Sec. 1 Rule 59
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
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


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, to preserve the property during the pendency of an
appeal, or to dispose of it according to the judgment, or 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 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.
Q: What is the purpose or the reason for assigning or appointing a receiver in
these instances?
A: It is for the preservation, administration or disposal of the property.
Note: You must be logical in your analysis. Why do we have to preserve the
property? If the property is already there, why do you have to preserve it?
Because it is not being preserve. It is in danger of being loss, dissipated, damage
or the value is being diminished. If such reason does not exist, you cannot ask
for receivership. In administration, the value may be diminished hence the need
for receiver to retain the value of the property or the property is supposed to be
disposed but it is disposed irregularly.
Even a mortgagee can file for a receivership because the property being
mortgaged is in danger of being loss, dissipated, destroyed or the value
diminished.
Q: How do you apply for receivership? Procedure for receivership?
A: File an application for appointment of a receiver which is ordinarily a verified
petition.
Q: What do you mean by a verified petition?
A: When you talk about verified petition it simply means that the petition must be
under oath. Verified under oath.
Q: When do you apply?
A: From the commencement of the action even after appeal because the
property is still in danger of being loss, dissipated, destroyed or its value
diminished.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Q: Where do you apply? Is it in the appellate court or trial court?
A: Amendment of the rule, the appellate court may allow the application to be
filed in and decided by the court of origin and the appointed receiver of the court
of origin has control over the property under receivership. Sec. 1 Rule 59 last
paragraph.
This amendment is exceptional because under Sec. 9 Rule 41 perfection
and loss of jurisdiction. The court of origin has no more jurisdiction over the
action but still the court of origin can still appoint a receiver, this is the reason
why it is exceptional. If you look at the 1960 rule which was amended by the
1997 rules of court hindi pa yan pwede but now pwede na. because the rationale
there is what is actually appealed is not the subject matter of receivership but the
principal action, here it is merely a provisional remedy. Sir does not totally agree
with that because as said earlier receivership may be a provisional remedy or a
principal action, so if it is a principal action definitely it is appealed there. The real
reason there is that it is in the exercise of its residual jurisdiction.
Q: What are the requirements?
A: Affidavit and bond.
Q: What constitutes the affidavit?
A: The affidavit here pertains to the affidavit of merits, same as Rule 57 Sec. 3
requirements but different grounds. It is a mandatory requirement for
receivership.
Q: Who should file the bond?
A: The applicant and the receiver shall file the bond. An applicants bond and a
receivers bond because the applicant may not be appointed as the receiver. As
much as possible, a party to the case should not be appointed as receiver, if you
are the applicant it does not follow that you will be appointed as the receiver.
Because these are 2 different bonds they must undergo 2 different things. The
applicants bond answer for the damages caused by the applicant while the
receivers bond answer for the damages caused by the receiver.
Q: What happens if the applicant is appointed as the receiver himself? Does he
file 2 bonds?
A: Yes, thats why you do not limit yourself to replevin where the bond is twice
the value of the property. It can also happen here that 1 person files 2 kinds of
bonds although not necessarily the value of the property because here just like
attachment it is with the discretion of the court. The court may only require his
bond not necessarily an amount equal to the value of the property but in replevin
the rules specifically provide that the bond must be twice the value of the
property. Here not necessarily, pero 2 pa rin, one coming from the applicant and
another from the receiver, so if the applicant was appointed as the receiver he
files 2 bonds. One as an applicant and another as receiver.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Q: If the 2 requirements are complied with, the affidavit and bond, the court shall
issue an order appointing a receiver, so what are the duties and responsibilities
of a receiver?
A: Sec. 6 Rule 59 a receiver shall have the power to bring and defend actions in
his own name; to take and keep possession of the property in controversy; to
receive rents; to collect debts due to himself as receiver or to the fund, property,
estate, person, or corporation of the same; to make transfers; to pay outstanding
debts; to divide money and other property that shall remain among the persons
legally entitled to receive the same. However, funds in the hands of the receiver
may only be invested only upon order of the court and upon written consent of all
the parties to the action. No action may be filed by or against a receiver without
the leave of the court which appointed him.
Q: Can a receiver be sue or be sued? How is it related to Sec. 1 Rule 3?
A: Yes, cross referring it to Rule 3 Sec. 1 who may be a party? A party is one
who may be benefited or prejudiced by the suit. A receiver shall not be damage
or prejudiced by the suit nor benefited thereto. He is not a party in interest, so
why can he sue and be sued? Because he will fall under an entity authorized by
law just like an executor or administrator, he has no interest on the estate so he
is not a party in interest actually. But he is authorized, he has what we call legal
standing.
Q: An order of receivership or appointing a receiver will take over and must have
possession of the property, if necessary these properties refer to everything
under litigation including books of accounts and everything. They are also
obliged to deliver or surrender do not comply what should the receiver do?
A: He can ask the court to cite him for contempt.
Q: How receivership is terminated?
A: When there is no more reason for its existence it has to be terminated.
Therefore if the properties subject of receivership is no longer in danger of being
wasted, lost, damage, injured or value dissipated then receivership will terminate.
One common example here is when a corporation who is now in the stages of
winding up its affairs. During that time, the stock holders usuallynakaw dito
nakaw doonusually the better solution is for the appointment of a receiver. A
receiver is not necessarily an individual person, it may also be a corporation.
Banko Pilipino for example, it was placed by receivership by the Sentral Bank.
The problem was that the receiver assigned was more corrupt than the stock
holders before the termination of the receivership he left for the States and
stayed there permanently bringing with him all the assets of Banko Pilipino. It
took Banko Pilipino more than 20 years to recover. That is why the receiver is
also obliged to give a report, a return or an accounting of his duties and
responsibilities to the court otherwise before you know it baka lalo lang nawala
and lahat.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

Rule 60 Replevin
Q: What is the principal action?
A: Recovery of possession of PERSONAL property
Q: Which court has jurisdiction?
A: MTC or RTC depending upon the value of the property because technically
replevin is only a provisional remedy.
Note: only receivership may only be a principal action but replevin will always be
a provisional remedy.
Q: What are the grounds for application of replevin?
A: Sec. 2
a. That the applicant is he owner of the property claimed, particularly
describing it, or is entitled to the possession thereof;
b. That the property is wrongfully detained by the adverse party, alleging
the cause of detention thereof according to the best of his knowledge,
information, and belief;
c. That the property has not been distrained or taken for a tax
assessment or a fine pursuant to law, or seized under a writ of
execution or preliminary attachment, or otherwise placed under
custodia legis, or if so seized, that it is exempt from such seizure or
custody; and
d. That actual market value of the property is stated in the affidavit.
Q: If A sold a lot to B, then B caused the titling of the property fraudulently in his
favor can A ask for recovery of the property being entitled to the recovery of the
property?
A: No, because replevin only applies to personal property.
The other provisional remedies we studied so far, you apply for the provisional
remedy from the commencement of the action or before judgment and even after
judgment in the case of receivership. But in replevin it should be availed of before
answer.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Q: Why should replevin can only be availed of before answer? Why would an
answer disqualify an application for replevin? After answer it cannot be applied
for anymore, why?
A: When an answer is filed issues are joined and because issues are joined, the
court already knows whether the applicant is entitled to the ownership or
possession. So hindi na igagrant ng court, kaya it must be before the answer
because it is an immediate remedy.

Q: To whom the writ of replevin addressed? What should he do after issuance of


writ?
A: To the sheriff, and after issuance of the writ of replevin he shall take actual
possession of the property for safe keeping.
Note: In attachment the taking of the property is for the purpose of awaiting for
the final judgment, here in replevin the reason for the taking of the actual
possession of the property is for safe keeping.
Q: How long should the sheriff hold in possession of said property?
A: Only 5 days, after said period he must deliver said property to the applicant.
Q: So the defendant must object? If he does not object, what happens?
A: Yes, it requires an objection. If such objection is not made the possession of
the property shall be given to the applicant.
Q: How do you discharge the writ of replevin?
A: By filing a counter bond which is called redelivery bond within the period of 5
days. And within that period if the writ of replevin is intended to be discharge the
defendant must file a counter bond which is also known as redelivery bond. If the
defendant puts up a redelivery bond then the sheriff is now required to return the
property to the person to whom he got it. But if the defendant fails to put a
redelivery bond then the sheriff will deliver it to the applicant.
Remember that this is only a provisional remedy, the principal action is recovery
of possession of personal property. Later on, in the principal action you can
thresh out ownership as the basis for the recovery of possession. Therefore
possession becomes an effect of ownership. If he is only entitled for possession,
pwede pa rin.
Yang vs Valdez
The 5 day period is mandatory, even if you put up a redelivery bond but beyond
the 5 day period it will not have the effect intended for.
Note: This is the shortest period wherein the sheriff have custody of the property,
in attachment from application which may be from the commencement of the
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


action until final judgment which may last for 10 years. Here, you may even file
for receivership kasi baka yung property e ginagamit na ng sheriff. And usually
you do not assign the sheriff or the clerk of court as a receiver. It is even
advisable not to assign a party to the case as a receiver.
Q: How much the bond be?
A: Twice the value of the property.
Q: If the defendant objects on the ground of insufficiency of the bond or to the
validity or capacity of the surety, what happens now?
A: Sec. 5 Rule 60. Then the court must ask the applicant to satisfy the
insufficiency of the bond, and only when the order comes out and there is still no
satisfaction of the insufficiency of the bond then the property shall be delivered to
the person to whom it was taken by the sheriff.
Q: What are the requirements?
A: Affidavit and bond.
We said in receivership that it can happen that there is 2 bond if the applicant is
appointed at the same time as the receiver. In replevin it can be thrice.
Q: Give the circumstance wherein it can happen?
A: If there is a 3rd party claimant.
Note: Weve studied 3rd party claim in Rule 39 execution, 3 rd party claim in
attachment and again here in replevin. Sec. 16, 14 dito naman 7. The same
provision, meaning if a 3rd party claims ownership or entitlement of possession of
the property subject of replevin then the applicant must file another bond which is
not less than the value of the property. So 3 na. This is without prejudice to a
possible action for damages filed against the 3 rd party claimant if the 3rd party
claimants claim is found to be frivolous or fraudulent. Where do you file it? Either
in the same action or a separate action for damages.
In attachment if you file for damages Sec. 20 Rule 57 you have to do it before
entry of judgment, dito sa replevin it can be file in a separate action. You should
know the distinctions between the different provisional remedies, they are
different, one from another.
Q: If there is already a writ of replevin and the sheriff already took possession of
the property and given it to the applicant, how can it be discharged?
A:
Q: How do you discharge a writ of attachment?
A: Sec. 5, 12, 13 Rule 57. Sec. 13 is by motion, Sec. 5 is by counterbond. Dito
naman sa replevin may equivalent for that, a counterbond also or by redelivery
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


bond, how much is the redelivery bond? Equal to the bond therefore twice the
value of the property also. Or you question the propriety or regularity of the
issuance.
Q: What are the possible grounds there?
A: That there is no basis, or there is no entitlement of ownership or possession of
the property. Then the writ can be discharged. But the immediate way to
discharged it is thru a redelivery bond which is equal to the value of the bond
which is twice the value of the property.
Yung 3rd party claim, the same provision yun, the same application. In other
words, thru an affidavit furnishing the same to the sheriff, the sheriff is entitled to
deliver it to the 3rd party claimant unless the applicant puts up another bond. So
thrice na lahat, the value of the property.
Do you recall the peculiarity in what we studied in the writ of execution? Under
Rule 39, when there is a 3 rd party claim, during the auction sale, even if the
purchaser is the judgment obligee he has to pay. Ordinarily, the judgment
obligee, if he is the purchaser during an auction sale pursuant to an execution he
does not have to pay. But if there is a 3 rd party claim, then he has to pay. Why?
Because precisely the ownership is in question.
Dito naman delivery until you put up another bond equivalent to the value of the
property.
While the property now is in the hands of the applicant, the main action should
proceed and what should be the judgment? Important to.
Orosa case
Sec. 9 only in the alternative. Hindi pwede yung 2 ang ibigay.
Q: What are the alternative decisions here?
A: It is either give the property or pay the value.
The best example of replevin is buying a car. But most buyers dont buy in cash
almost everyone is buying thru installment. Here you are not the owner yet, when
the car is given to you, you execute a mortgage, mortgaging the same car to the
seller. Read the contract, it always has a clause in default, if it says there that if
you default for example 2 months of payment, the seller will have the right to
foreclose the mortgage judicially or extrajudicially. Here, the foreclosure will
always carry a prayer for replevin and the seller is willing to pay twice as much as
the value of the property because the bond is not a cash bond but merely a
surety. Once they foreclose they get the car, complying with all the requirements.
Once they recover it after the case, the same car shall be resold.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Replevin as well as attachment is known as custodia legis. Property which has
been attached can no longer be the subject of replevin, but a property replevined
can be the subject of attachment minus/less delivery. Note parehong may
delivery, pag replevin kinuha na, pero pwede mo pang iattach without delivery
because in attachment you also take but first right sa replevin, di mo na pwede
kunin yun. But you can attach, because attachment simply furnish him with the
copy of the order. So ano ka? Subsequent lien holder ka dun. The attaching
creditor shall be a subsequent lien holder. Replevin replevin no attachment
attachment yes why? Because it depends upon the value, if the value of the
property for example a 100 square meter property in makati worth 2m and it was
attached for a debt worth 1m, it can again be attached. But in the case of levy,
levy on attachment who is . the first attaching creditor. Kung may sobra
ibabalik dun sa may owner. And you can even be a redemptioner there because
you are a subsequent attaching creditor. So if there are 2 attachment, the 2 nd
attaching creditor is or maybe a redemptioner if the property is sold thru levy in
attachment.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

RULE 61 SUPPORT PENDENTE LITE


Q: What is the principal action?
A: Support, support pendent lite being a provisional remedy cannot stand alone,
it must be attached to a principal action which is an action for support.
Q: Which court has jurisdiction?
A: The court which has jurisdiction over the principal action. RTC
Q: Why RTC? Can it be MTC?
A: Because the subject of support is not capable of pecuniary estimation so only
cognizable by the RTC. The amount asked or prayed in the action of support is
immaterial because the issue here is whether or not the applicant is entitled to
support.
Q: Is there any exception to the rule? Are there circumstances wherein support
pendent lite can be taken cognizance by the MTC or inferior courts?
A: Yes, in criminal cases because support pendent lite which attaches to support
can be filed together with the criminal case because in criminal procedure it is
now provided that once you filed a criminal case the civil aspect is deemed
instituted with it.
Q: What are exceptions to that?
A: Reservation, prior institution.
Q: The usual case of an unwed mother goes to court and ask support for the
child. When can she file it?
A: From the commencement of the action or at anytime prior to final judgment.
Q: Then the court must take immediate action on the provisional remedy of
support pendent lite. What does the court do?
A: The court shall issue an order directing the respondent to file a comment
within 5 days. And with or without comment, hearing must be held by the court.
The hearing here is for the provisional remedy. (parang injunction, it cannot be
granted without a hearing. In preliminary attachment pwede, kasi it can be
granted ex parte but it cannot be implemented without prior or comtemporaneous
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


service of summons). If he failed to appear, court grant an order of support
pendent lite, here it is only provisional.
An unwed mother living in the squatters area in Tondo asked the court for
support and asked to be granted provisional support to her only child in the
amount of 50k a month. The court will ask why 50k? Panggasulina po. Ilan ba
kotse mo? Wala po. Nanghihiram lang ako ng kotse. Ilang taon na ba ang anak
mo? 3 months old po. Ano ba ang gatas nya? Breast fed po? Sabihin ng court di
mo kailangan ng 50k ang kailangan mo lang e malunggayLOL. Para mayroong
gatas, and you are only feeding milk to your son o baka naman may
pinapadodo ka pang iba dyanLOL. Provisional lang to, kya the court may grant
5k a month provisional remedy.
Note: That this provisional remedy shall depend upon the capacity, eto ang very
wide discretion ng court. Capacity ng person who will give support.
Q: Suppose the respondent does not comply, what should the court do?
A: The court shall issue an order to execute
As we have studied under the Rule 39, only final order or judgment may be
executed. Then why should it be executed? In fact, this is an interlocutory order
like an appointment of a receiver, it is not appealable only subject to certiorari if
there is a ground.
Q: If these is merely an interlocutory order, why should it be executed?
A: The rule so provides that this is the only instance where an interlocutory order
may be executed. That provisional remedy of support pendent lite can be subject
of a writ of execution. It is a very exceptional character. It is an exception to the
rule that only a final and executory order may be executed.
Q: Mother was granted 10k a month, in the process the main action is being
heard which is support proper to make the support pendente lite support already.
Suppose the respondent was able to establish that he is not liable to give support
because he was able to prove that he was not the father. What happens now?
A: Court shall order the return of the paid amount with payment of legal interest
from the dates of actual payment, without prejudice to the right of the recipient to
obtain reimbursement in a separate action from the person legally obliged to give
support. Should the recipient fail to reimburse the amounts, the person who
provided the same may seek reimbursement in a separate action from the
person legally obliged to give such support.
Q: What happens to the provisional remedy which has already been granted, yun
ba ang ibabalik?
A:
Q: If the applicant cannot return the support granted then what happens?
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


A: She cannot be forced nor be imprisoned for that. But the respondent may
seek reimbursement in a separate action to the person legally obliged to give
support.
Note: 2 remedies restitution and reimbursement plus damages.

Mongonon vs CA 495 or 496 or 497 SCRA


De Asis doctrine
Support never becomes final, so res judicata does not apply. Because if granted
10k by court as support (not just pendent lite) may judgment na for support. You
can always go back to court and asked for increase or decrease of support
because it depends upon the capacity of respondent and needs of recipient. In
the De Asis case, the parties thereto made a compromise and later on the other
party filed another case for support. The respondent alleged that the compromise
judgment is immediately executory and there is res judicata. SC ruled that there
is no res judicata in support, it is never final.
People vs Manahan
Acknowledgment must be distinguish and separated from support. If the
defendant is married, under that doctrine, he may be forced to give support but
not to acknowledge the child. The rationale there is in the Family Code because
it would introduce bad blood in the family.
Sir: Doesnt like that doctrine, he should be forced to acknowledge the child. It is
his fault so why should not he acknowledge.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

SPECIAL CIVIL ACTIONS


Q: What is so special about special civil actions? Why are they called special civil
actions?
A: Because each particular civil actions are governed by their own special rules.
Ordinary rules of court does not apply to them but is only suppletory in character.
For example some special civil actions have no summons, the court acquire
jurisdiction over the respondent in a different manner but in ordinary actions
summons is mandatory. Like in certiorari, there is no issuance of summons there,
the court acquire jurisdiction by the issuance of order to file a commnent.
Distinguish Rule 65 with Rule 45
In special civil actions in Rule 65 it says there that the tribunal, body, board,
officer, corporation are only nominal parties and under regulations now of the SC,
circulars, the tribunal, corporations under or impleaded as respondent are not
suppose to appear and not suppose to file pleadings, let the private respondents
do that for them.
That is why in certiorari, you say petition for certiorari Juan De la Cruz vs RTC
branch 45 manila then name of respondent. The principal respondent there is the
tribunal court or bodies, but they become nominal in the process.
Q: Name the special civil actions?
A:
1. Rule 62 Interpleader
2. Rule 63 Declaratory Relief and Similar Remedies
3. Rule 64 Review of judgments and final orders or resolutions of the
COMELEC and COA
4. Rule 65 Certiorari, Prohibition and Mandamus
5. Rule 66 Quo Warranto
6. Rule 67 Expropriation
7. Rule 68 Foreclosure of Real Estate Mortgage
8. Rule 69 Partition
9. Rule 70 Forcible Entry and Unlawful Detainer
10. Rule 71 Contempt

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

RULE 62 INTERPLEADER
Q: Which court has jurisdiction in an action for interpleader?
A: It may be taken cognizance by MTC or RTC. It depends upon the subject
matter of the interpleader.
Q: Why does it depend upon the subject matter? What can be the subject matter
of an interpleader?
A: Property whether real or personal may be the subject matter of an
interpleader, aside from that performance of an obligation may also be the
subject matter of an interpleader.
Note: Performance of the obligation cannot be filed in the MTC because it is
incapable of pecuniary estimation which is only cognizable by the RTC.
Performance of an obligation amounts to specific performance which is not
capable of pecuniary estimation.
For example you found a wallet, you surrender it to the dean, upon opening of
the wallet it was found to contain a check worth 350k payable to cash. A,B,C, and
D alleges ownership. The dean has no other choice but to file an action for
interpleader because there are 4 different claimants. Another example is A and B
are lessor and lessee over an apartment unit. At the end of the contract of lease
A would like to surrender the premises to B, but C and D came forward and said
they are entitled to that. A now does not know to whom to deliver, therefore A
should file an interpleader. Example of obligation, to paint, sculpt, perform.
Q: How do you distinguish now interpleader from intervention?
A: Interpleader is a special civil action while intervention is an ancillary action. In
the former there can be no single defendant, there must be at least 2 defendants
while in intervention there can be 1 defendant. In the former there is no action yet
while in the latter there is already a pending action.
Note: If you are asked to make a distinction do not define one and period
because you are not stating a distinction at all.
Q: After an action of interpleader is filed, what happens next?
A: The court shall order the respondents to file their answer.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

Note: This is the only rule where there is a section for a motion to dismiss.
Defenses and objections, that is what is meant there.
After filing an answer and once the issues are joined then you go to the regular
rules of court which is you go to pretrial then trial.

Q: What should the judgment be by the court in an interpleader case?


A: The judgment shall be a declaration as to who is entitled or who is the
legitimate or entitled to the real or personal property or of the performance of the
obligation.
Wakwak golf case
Interpleader is a compulsory counterclaim. When Tan filed a case against
Wakwak knowing already that there is another claimant, it could have and it
should have filed a compulsory counterclaim of interpleader. For not doing so, it
is considered that it had waived its right to any action against the defendant.
Q: Can there be a compulsory intervention?
A: Yes it can happen.
Eternal Garden vs IAC
Court may order that the subject matter be paid or delivered to court. And the
person who filed the interpleader having no interest over the subject matter
should be ordered by the court to do so.
So if you have an action for interpleader you should ask the court to deposit.
Q: What if the action is for the performance of an act, can you ask for its deposit?
A: No, the person who is obliged to perform will not stay there. It is only
applicable to real or personal property.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES


Q: Which court has jurisdiction over declaratory relief?
A: RTC has original and exclusive jurisdiction because the subject matter is not
capable of pecuniary estimation.
Note: The real declaratory relief is stated in the first paragraph of Sec. 1 Rule 63,
the 2nd paragraph which pertains to reformation of instrument or quieting of title is
not declaratory relief it is similar remedies. The 2 nd paragraph was added there to
give life to certain provisions of the Civil Code which has no corresponding
procedural aspect. It is even misplaced, it should fall under ordinary action.
Q: Whats the venue?
A: If personal action, where the plaintiffs or respondents resides at the option of
the plaintiff.
Q: What is the subject matter?
A: Any contract, will, deed, or other instruments or whose rights are affected by a
statute, executive order or regulation, ordinance or any other governmental
regulation.
Q: What is the condition? What is the peculiarity there?
A: Before breach of contract or violation of the statute. If there is already violation
in the contract or statute then declaratory relief is no longer applicable.
Meralco vs Philippine Consumers 374 SCRA
There was a PD by Marcos reducing the Tariff rate of electricity from 5% to 2%
and then the Phil. Consumers Foundation Inc. wanted that the 3% reduction be
given to the consumers. The BOE denied it. It was never appealed so the order
of BOE became final and executory. 5 years after PCFI filed an action for
declaratory relief. SC dismissed it because the PD has long been breached
already. The doctrine here is that you cannot file an action for declaratory relief if
there is already breach.
Example Makati issued an ordinance banning smoking even on the street
effective on Dec. 20, 2008. Before Dec. 20, 2008 arrives you have the right to file
an action for declaratory relief. Pero pagdating ng Dec. 20 no more, because
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


once Dec. 20 arrives there is a reasonable presumption that there is already a
violation.
Q: Suppose youve already filed an action before breach, then pending action
there is already breach, then what happens?
A: Then the action shall be converted into an ordinary action.
Q: How do you convert the action?
A: File a motion to amend action with leave of court.
Q: Example a regulation of a school was issued stating that by the school year
2008-2009 starting June tuition fees shall be raised by 120%. There was already
a circular to that effect. Declaratory relief was filed, pending action June 2008
came. The increase was already collected from the students so you convert your
action for declaratory relief to what kind of action?
A: Convert is to collection of sum of money.
A and B are lessor and lessee of a property. And the contract of lease is for a
period of 10 years from year 1990 to year 2000. In 1995 the land was overrun by
MNLF and so the lessee left the property. 4 years thereafter, in 1999 the MNLF
was driven away by the military so B returned to the premises. He files for an
action of declaratory relief asking the court to determine whether the contract will
expire 2000 or 2004. why? Because he was not able to avail of the 4 year period
when it was under the possession of the MNLF. So he filed for declaration of
relief, but the action has not yet terminated it is already 2001, by 2001 the action
must be converted into what? Into either unlawful detainer or forcible entry as the
case may be or for recovery accion publiciana.
Q: Is the court bound to make a judgment in an action of declaratory relief?
A: No, another peculiarity here is that the court is not bound to make a judgment.
Q: When is it not bound to make a judgment?
A: When there will be no finality in the resolution of the rights and privileges
Manhattan Bank New York
MBNY is a trustee of a will and one of the named devisee in the will filed an
action for declaratory relief without asking the court to determine who are the
compulsory heirs and what are their specific rights under the will. The petitioner
did not implead the compulsory heirs, the court refused to render judgment
because even if it did it will not finished or end the controversy.
RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OF THE COMELEC
AND COA
Remember that Rule 64 cross refer you to Rule 65 so we do not have to discuss
Rule 64
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Q: What is the difference between Rule 64 and Rule 65?
A: In Rule 64 it only applies to COA and COMELEC while in Rule 65 there is no
specific agency. In the former the petition should be filed 30 days from receipt of
notice while in the latter it is filed 60 days from notice. In the former it is solely
cognizable only by the SC while in the latter there is concurrent jurisdiction
between SC, CA, RTC and even Sandiganbayan but in the case of the latter the
only limitation being is it should only be in aid of its appellate jurisdiction.

RULE 65 CERTIORARI, PROHIBITION, AND MANDAMUS


Rule 65
Petitioner
(Plaintiff)
Respondent

Certiorari
Any aggrieved
party
TBO

Grounds

1. Lack of
jurisdiction
2. Excess of
jurisdiction
3. Grave abuse of
discretion
amounting to lack
of jurisdiction
Judicial/quasi
judicial functions
(discretionary)
1. No appeal
2. No plain,
speedy, adequate
remedy in the
ordinary course of
law
To annul/void
judgment or final
order

Functions of
respondents
Conditions

Judgment

Prohibition
Same
Tribunal, Board,
Officer, Person,
Corporation
Same

Mandamus
same
TBOPC

1. Neglect in the
performance of
the act enjoined
by the law
2. Unlawfully
excludes the
enjoyment of an
office or franchise
Same + ministerial Same as
functions
prohibition
Same

To cease and
desist

Order to do but
may award
damages

Let us now discuss these:


Q: We do not have any problem in the aggrieved parties. How about the
respondents?
A: In prohibition you add the person and the corporation and remember that this
used to be under the jurisdiction of the SEC, but this is no longer true. How about
this person? This is not ordinary individual person but a person exercising quasi
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


judicial function. Remember that quasi judicial bodies as we have studied does
not belong to the judiciary and a lot of them falls under the executive branch of
the government and that includes the NLRC. The NLRC is not a judicial body but
it exercises quasi judicial functions.
UP Board of Regents vs Tailan
Board was considered as a body exercising discretionary function, in effect quasi
judicial. Even in an administrative bodies, a school board, when it rules that a
student is not entitled to be enrolled in said school due to some grounds.
Lapid vs Laurea
Requirement of certiorari
Q: Give example of lack of jurisdiction?
A: Tribunal, body, board or officer has no authority to decide the case. Example
MTC rendered a judgment on an issue which the subject is not capable of
pecuniary estimation.
Russel vs Vestil
Note: Under Rule 45 which is a mode of appeal, the body there acted with
jurisdiction that is why the ground cannot be any of the 3 because it is a mode of
appeal. It is called errors in judgment. Under Rule 65 it is errors of jurisdiction.
Errors of judgment are correctible by an appeal, while error of jurisdiction is
correctible by certiorari.
Q: Give example of excess of jurisdiction?
A: Here the court has jurisdiction but it exceeded its authority. Example is when
MTC in a case of reckless imprudence resulting to homicide rendered a judgment
of conviction of 20 yrs imprisonment. This is clearly excess of jurisdiction.
Before amendment in summary procedure, attorneys fees are limited to 20k wala
na yan ngayon. So if a court grants more than 20k as attorneys fees under the
old law it is clearly excess of jurisdiction. Under the new law it may be grave
abuse of discretion but not anymore excess of jurisdiction.
Court penalizes lawyer in the amount of 20k for direct contempt for coming late.
Maximum penalty is 20k so no excess of jurisdiction but maybe grave abuse of
discretion.
Q: What is grave abuse of jurisdiction amounting to lack of jurisdiction?
A: It is a capricious or whimsical exercise of judgment and despotic or arbitrary
exercise thereof.
Certiorari is always questioned in the bar or at least it is always mentioned. So if
you are asked a question about certiorari and you do not know whether it is
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


excess of jurisdiction or grave abuse of jurisdiction amounting to lack of
jurisdiction, just remember 4 adjectives whimsical, capricious, despotic and
arbitrary. When you see any of these words, it is grave abuse of discretion
because in all jurisprudence involving certiorari, these are the words often used
by the SC. But there may be a case wherein it does not use the specific words,
kaya dapat alam nyo ang meaning and synonyms of these terms.
Q: When is it capricious? How about whimsical? Despotic? Arbitrary?
A:
Note: That the word capricious and whimsical always go together. You will not
find one without the other. It means it is only based on whim, there is no need, no
necessity. It is unreasonable.
Arbitrary naman is no basis, unwarranted, baseless, the law does not
provide. Despotic on the other hand is when it is done out of passion, out of
revenge, out of hatred or out of love. Remember despotic pa rin yan kahit out of
love. Relationships, maraming jurisprudence dyan, kaya lawyers always file
motion for inhibition.
Q: Give example of grave abuse of discretion?
A: In filing a motion to quash grounded on double jeopardy and in your motion
you attached the judgment of conviction of your client. Very clear he has been
convicted already. Court denied motion stating yes you have been convicted of
rape of my daughter but it is still denied. Why? Because I have 2 more
daughters.LOL.
Note: In all of these grounds lack of jurisdiction, excess of jurisdiction, grave
abuse of discretion. Ang malimit mong mabasa is grave abuse of discretion kasi
very clear pag excess of jurisdiction and lack of jurisdiction.
It is important that you must establish the existence of whimsical, capricious,
despotic or arbitrary. If you cannot establish that then the court should deny it
because it would then be an error of judgment and not error of jurisdiction. The
remedy would be wrong. And at the time of said judgment the case would be final
and executory because the right to appeal is lost because the period for filing an
appeal has already lapse.
Note: That certiorari does not stop the running of the period of appeal.
Note: Discuss mandamus with quo warranto because of the similarities between
the 2.
Q: Let us now go to functions of the respondent. In Certiorari the functions are
judicial and quasi judicial function. Now, what is judicial function?
A:

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Q: The distinction lies in the root of its power since both exercises the same
power which is the power to hear and determine a case, so what is the root of its
authority?
A: In judicial function the root of its power comes from the judiciary itself while in
quasi judicial function the roots of its power comes from the legislative or the
executive department.
Note: Do not confuse it to discretionary or ministerial functions
Q: How do you distinguish one from the other?
A: In ministerial, the court is left without the choice but to grant it if all the rules
and requirements are complied with, while in discretionary it may deny or grant
but within the parameters, it cannot go beyond said parameters. Example is
giving penalty of 6 years 1 day to 12 years. The court has discretion what specific
penalty to give but it must be within said period depending upon certain
circumstance.
Note: That the grounds in prohibition is the same even if the function is merely
ministerial kasi pwede pa rin na whimsical, capricious, despotic or arbitrary. But
which is clearer? Yung discretionary function sa certiorari because it is very clear
because of the parameter in discretionary. So if it exceeds the parameter clearly
grave abuse of discretion amounting to lack of jurisdiction (????).
Conditions are that there must be no appeal and there is no other plain, speedy,
adequate remedy in the ordinary course of law.
Q: Why no appeal?
A:
Generally, certiorari cannot be a substitute for an appeal. Remember this,
madaming ramifications to. If appealable, no certiorari, as a general rule, so why
go to certiorari? Because it is not appealable. Example of those which are not
appealable are interlocutory orders. Decisions in labor cases, does not allow
appeal so your remedy is certiorari. Why no appeal again? Because you could
have appealed but you did not, you have now lost your right to appeal. But these
time the loss of appeal here is not due to any others fault but your own. If it is
your own fault, you cannot apply for certiorari. You loss your right to appeal not
because of your own fault. Example lawyers fault, although the general rule is
fault of lawyer is also fault of client, but there are exceptions there like Rule 38
Sec 1 Relief from judgment; Sec. 2 Rule 38 Relief from denial of appeal. You left
for abroad while pending case, lawyer received decision but he did not notify you.
When you return it can be excused.
The other condition, no plain, speedy, or adequate remedy in the course of law,
in other words you could have filed a motion for reconsideration or you could
have appealed because it is still available, but appeal or MR are not speedy or
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


adequate remedy in the ordinary course of law. Example motion to quash was
denied, may appeal dun, pero certiorari is the better rule, why? Because if you
saw appeal, tuloy tuloy pa rin ang kaso. You cannot desist from proceeding the
case, are you going to subject, are you going to endanger the client to be
convicted later on? So instead of an appeal or MR then you go to certiorari where
the other court will immediately strike down the resolution.

Q: What is the character of Rule 65 as distinguished from rule 45?


A: Rule 65 is a special civil action while rule 45 is a mode of appeal.
The ground for filing an appeal under Rule 45 is error of judgment which can
either be:
1. Insufficiency of evidence
2. Judgment is not according to the facts
3. Damages awarded is contrary to law
The ground for filing certiorari under Rule 65 is error of jurisdiction which can
either be:
1. Lack of jurisdiction
2. Excess of jurisdiction
3. Grave abuse of discretion amounting to lack or excess of jurisdiction.
Q: What are the grounds for filing of an action for prohibition?
A: Same grounds with certiorari.
Q: What are the grounds for filing an action for mandamus?
A:
1. Neglect in the performance of duty imposed by law
2. Exclusion from enjoyment of an office
Q: Doctrine in the case of Lapid V. Laurea
A:
1. Requirement preparatory to the filing of petition for certiorari
General Rule: Filing of a motion for reconsideration is mandatory to give
the tribunal a chance to correct itself
Exception: Purely questions of law which raises questions of error of
jurisdiction
2. Specific dates must be stated as to when the judgment was rendered,
when notice of judgment was received, filing of Motion for reconsideration
and receipt of order with respect to the denial or grant of the motion.
Q: What is the period for filing of certiorari?
A: Period of 60 days from receipt of copy of judgment.
Q: Does the Neypes doctrine or fresh day rule apply?
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


A: The jurisprudence does not specifically provide that it should likewise apply to
Rule 65 because it speaks only of appeal. However according to a noted
professor, the fresh day rule applies both to Rules 45 and 65 unless a new
jurisprudence would otherwise provide.
NOTE: There was an old SC circular which provides that the 60 day period
includes the filing of a Motion for Reconsideration. However, in 2005 there was a
new circular which states that the old circular does not apply to Rule 65 so the 60
day period is counted from the notice of receipt of denial of the motion for
reconsideration.
Q: Doctrine of UP Board of Regeants Case
A: In mandamus rights must be very, very clear so that if the right is doubtful,
mandamus will not lie.
Q: Distinguish mandamus from quo warranto. For example: Mayor Atienza has a
city attorney which is Atty. X whom he replaced with Atty. Y with no valid reason.
Against whom may Atty. X file mandamus and against whom may he file quo
warranto?
A: Atty. X can file mandamus against Mayor Atienza because by the latter's act
he was excluded from the enjoyment of his office. Atty. X can file quo warranto
against Atty. Y because he is a usurper of Atty. X's office.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

RULE 66 QUO WARRANTO


Q: What is the doctrine in the Mendoza Case?
A: Quo warranto is directed against the person and not against the office. Also
plaintiff is not entitled to backwages.
Q: Who initiates Quo warranto?
A: Office of the Solicitor General, public prosecutors and relators.
Q: Who are relators?
A: Private citizen who is entitled to the office.
Classic Example: Ninoy cannot file quo warranto against Marcos so his remedy
was to file prohibition. He did not succeed. He succeeded in the tarmac when he
died. What is the moral of the story? Whatever you cannot do living, you might
succeed in death.
Q: Example 4 candidate for councilor filed a quo warranto against 8 elected
counsilors of Manila. The court dismissed the case. Why?
A: It is a rule that in filing quo warranto the person filing should be entitled to the
position. So in this case it was dismissed because how can 4 people fill up the
position of 8 councilors.
Q: Jurisdiction?
A: Concurrent SC, CA or RTC but never in Sandiganbayan except in aid of
appellate jurisdiction
Q: What does in aid of appellate jurisdiction mean?
A: When the appeal was made to the Sandiganbayan from MTC or RTC in cases
of publice officials whose salary grade is below 27
Q: Tuason Case
A: Certiorari will only lie against tribunal exercising judicial/quasi-judicial function.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

RULE 67 EXPROPRIATION
Q: Who exercises jurisdiction?
A: The RTC because the action is not capable of pecuniary estimation. The value
of the property being only incidental to the case. (Russel V. Vestil, Brgy San
Roque V. Heirs of Pastor)
Q: Venue?
A: Where the property is located.
Q: Who are the parties who may expropriate?
A: LGU's, government instrumentalities however a resolution authorizing
expropriation must first be passed.
Q: Rule 67 is procedural. What is the substantive law which provides for
expropriation?
A: The 1987 Constitution
Q: What properties are involved?
A: Any kind of property, whether real or personal
Q: What does taking mean?
A: Taking includes not just actual taking but also diminution/deprivation of
benefits
Q: What does for public use mean?
A: It means that the purpose for taking would ultimately redound to the general
welfare of the people
Q: May a law be passed authorizing the city of Manila to expropriate a portion of
UST? May the compensation be by way of exchange of property?
A: No there can be no compensation by way of exchange of property because
the determination of Just compensation is a judicial function.
Q: What is the remedy of the owner of the property?
A:
1. Mandamus
2. Quo warranto
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

Q: Which should be preferred, ownership or utility?


A: At first glance it would seem that ownership must be preferred but in reality it
is utility because nature made it so that you own only what you need and dispose
of the things that you don't use. Pag wala nang pakinabang, ipamigay mo na
kagaya ng asawa mo.
Q: What is the formula for computing just compensation?
A: Just Compensation = Fair Market Value plus Consequential damages minus
consequential benefit which should not be more than consequential damages.
Q: What are the 2 parts of expropriation?
A:
The first stage is to determine whether or not the property can be devoted to
public use. Second stage, determination of the just compensation.
NOTE: Plaintiff upon deposit of the amount may enter the property
Q: Where should the deposit be made?
A: court or reputable bank
Q: How much should the deposit be?
A: Assessed value of the property
Q: Who determines Just compensation?
A: Determination of just compensation is a judicial function so there can be no
compensation by agreement.
Q: Appointment of Commissioner
A: Not more than 3
Men of Integrity
Q: What is the effect of the report of the commissioner?
A: The report is not binding upon the court
Q: NPC case
A: Apparent conflict under Sec. 1 Rule 17 and Sec. 2 Rule 67
Q: Doctrine in the City of Manila V. Serrano
A: Expropriation should be a final recourse

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

RULE 68 JUDICIAL FORECLOSURE


Q: Application?
A: Applicable to both real estate and chattel mortgages.
Q: What does judicial foreclosure mean?
A: It has passed through court process.
Q: What should be filed?
A: Verified complaint of foreclosure absolute necessity to the mortgage
Q: Who should be included?
A: All parties who have interest over the property subordinate to that of the
mortgagor.
Q: If a party interested is not impleaded what is the effect?
A: He is not affected by loss of equity of redemption.
Q: What is the object of foreclosure
A: Property
Q: Can a property mortgaged may still be attached?
A: Yes
Q: Distinguish right of redemption from equity of redemption.
A: Right of redemption is the 1 year period from registration of certificate of sale
given to a person to redeem the property. Equity of redemption is a right given to
persons with interest within 90 days and not more than 120 days from entry of
judgment to redeem the property.
Q: What is order of confirmation?
A: Confirmation of the sale of the property.
Q: Deficiency judgment
A: By filing a motion for deficiency judgment.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

RULE 69 PARTITION
Q: What is the object of partition?
A: To assign property.
Q: Jurisdiction
A: RTC because the case is not capable of pecuniary estimation.
Q: What are the stages in partition?
A:
1. Determination of the existence of co-ownership - absence of which partition is
unavailable
2. Determination of who are entitled and what properties to be distributed
NOTE: Each stage is final and appealable
Q: What kind of appeal?
A: By record of appeal because the action calls for multiple appeals.
Q: What is a project of partition?
A: Agreement between and among the parties in partition which is submitted to
the court on which a judgment of partition is made.
Q: Who prepares a project of partition?
A: Any of the co-owners
Q: Who are the parties in an action for partition?
A: Plaintiff - co-owner
Defendant - all other co-owners as indispensable parties
Q: What is the effect of the approval of the project?
A: Approval is equivalent to judgment of partition.
Q: If no project is agreed upon what should the court do?
A: Appoint a commissioner and the commissioner would make and submit a
project of partition.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Q: If the parties still does not agree, what should commissioner do?
A: Assignment - identical to buying out.
NOTE: Even if only one of the co-owners objects, no assignment
Q: What then should the court do?
A: Sell the property and the proceeds distributed among and between coowners. This is the last resort.

Q: May a sale be objected to? On what ground?


A: Yes sale may be objected to if it will not redound to the benefit of the coowners.
NOTE: Commissioner should give report, however such is not binding upon the
court.
Q: What does judgment of partition include?
A: It includes payment of the cost of accounting and damages.
Q: Doctrine of Heirs of Teves V. CA
A: Any activity that puts an end to indivision is a case of partition.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

RULE 70
Q: What are the 3 kinds of action involving recovery of property?
A:
1. accion publiciana - right of possession
2. accion reinvindicatoria - recovery of ownership with possession as an
attribute of ownership
3. accion interdictal - possession de facto
a. forcible entry
b. unlawful detainer
i. governed by rule 70
ii. in case of agricultural property/land governed by the civil code
Q: Doctrine in Javellosa V. CA
A: Distinction between Unlawful detainer (UD) and Forcible Entry (FE)
UNLAWFUL DETAINER
Possession was lawful at the beginning
and became illegal thereafter
There is a need to establish prior
possession
Illegal detention of the property

FORCIBLE ENTRY
Possession is illegal from the beginning

There is no need to establish prior


possession
Deprivation of the right of possession
of property
There is a need for demand
No need for a demand
Action must be filed from period of 1 Action must be filed 1 year from
year from the last demand
accrual of action
Possession was acquired by force, Not applicable
threat, intimidation or stealth
Q: Who are the aggrieved parties?
A: Vendor, vendee, lessor or any other person deprived of possession
Q: Is the lessee included?
A: Generally no because the lessee is assumed to be in possession. He may be
included under those other persons deprived of possession.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Q: In ejectment the only issue is possession de facto. Can you raise the issue of
ownership? If so what is the effect?
A: It will not divest the court of its jurisdiction. The court shall resolve the issue of
ownership only to resolve the issue of possession. Resolution as to ownership in
ejectment cases is only provisional.
NOTE: Old rule prior to BP 129 provides that if issue of ownership is raised, the
court is divested of its jurisdiction.

Q: A is the lessor and B is the lessee who was not able to pay rentals for several
months. A filed a case of unlawful detainer against B. Judgment was rendered in
favor of B. Is the judgment in favor of B immediately executory?
A: No because he was already in possession of the property.
Q: What is immediately executory in the judgment as provided under sec.19?
A: The return of the property. Restoration or restitution to the one who is entitled
to possession.
Q: How is execution stayed?
A: Requisites for stay of execution
1. Perfection of appeal by filing a notice of appeal
2. Supersedeas bond
3. Deposit of the amount for the use and occupancy of the premises
Q: What is a supersedeas bond?
A: Unpaid rentals. If there are no unpaid rentals there is no supercedeas bond.
Q: How much is the supersedeas bond?
A:
1. In accordance with judgment
2. If there is no judgment, in accordance with the contract
3. In the absence of contract, according to what was paid as rentals
Q: What is the amount for use and occupancy?
A: Payment of rental during the pendency of the appeal.
Q: How much?
A: Same as supersedeas bond.
Q: Where do you file notice of appeal?
A: In the municipal trial court
Q: Where do you file supersedeas bond?
A: In the municipal trial court
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007


Q: Where do you file amount for use and occupancy?
A: In the appellate court
Q: When?
A: General rule on or before the 10th day of each succeeding month. For
example the rent due for the month of april should be paid on or before May 10.
Exception: When payment of rental must be paid in advance in accordance with
the contract.
NOTE: Non-compliance with even one month would render the judgment
immediately executory.
Q: Both Sec. 19 and Sec 21 speak of immediately executory judgment. How is
Sec. 21 different from section 19?
A: Section 21 speaks of the judgment of the appellate court and such judgment
cannot be stayed except when defendant filed injunction.
Q: How about sec. 15 and sec. 20?
A: Sec 15 applies to Trial Court while Sec 20 applies to the appellate court.
Injunctive relief is available to both in order to stop defendant's act of
dispossession
Q: Doctrine in Refugia Case
A: Motion for reconsideration is a prohibited pleading only in the MTC under
summary procedure. When the case has already been appealed to the RTC, MR
is already allowed.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

RULE 71
Q: What is contempt?
A: Upfront or defiance, act against dignity, integrity and justice of the court
Q: What are the two kinds?
A:
1. Direct Contempt
Done in the presence of or so near a judge that disrupted proceedings.
2. Indirect Contempt
Q: What are the remedies of a person cited in contempt?
A:
Direct Contempt
File a petition for certiorari and not an appeal because the judgment is only
interlocutory
Indirect Contempt
1. File an appeal
2. Post a bond
Q: Doctrine in the case of Yasay V. Recto
A: Supreme Court said that the power of contempt must be used in preventive
manner and not in vindictive manner. The distinction between civil and criminal
contempt was also abolished.

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE


MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED