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The general rule is that neither to a litigation should be appointed receiver without the
other's consent because "a receiver ought to be an indifferent person between the parties" and
"should be impartial and disinterested" . Note that Bacaron was the defendant, and his personal
interest would conflict with his duties to the court and the plaintiff. Furthermore, under the Rules
of Court, the receiver must file a bond; and yet Bacaron was exempted from such obligation. The
effect of the whole proceeding was to discharge the receiver ship at the request of the
defendant, without so much a bond contrary to sec. 4, Rule 61, of the Rules of Court.

Alcantara vs Abbas G.R. No. L-14890

In March, 1957, Alcantara sued Bacaron partly to foreclose the chattel mortgage
executed by the latter on a caterpillar tractor with its accessories.

EMILIANO ACUA and NIEVES B. ACUA, petitioners, vs.

To a clause in the mortgage contract, the Davao court designated Alcantara as

receiver of the tractor; and he duly qualified as such. Thereafter, with the court's approval, he
leased the machine to Serapio Sablada. Upon the expiration of the lease, and after Sablada's
failure to return the machine, said court at the instance of Alcantara,1 declared Sablada to be in
contempt of court and fined him in the amount of P100.00 on October 6, 1958.

THE HONORABLE HERMOGENES CALUAG, Judge of the Court of First Instance of Rizal,
Petitioner Emilio Acuna and his wife, Nieves Acuna, executed in favor of Reynaldo Santos a real
estate mortgage over two parcels of land. Respondent Santos filed a complaint for foreclosure of
the mortgage. The trial court issued a writ of execution in favor of the plaintiff. The properties
mortgaged were sold to Santos, and an order was issued for the issuance of a writ of

Alleging that Alcantara had neglected his duties as receiver, because he did not get
the tractor, Bacaron petitioned the court to relieve such receiver, and to appoint him (Bacaron)
as the receiver instead.
The respondent dent judge of the Davao court, in an order dated December 10, 1958,
relieved Alcantara and appointed Bacaron as receiver of the tractor, without bond, with authority
to receive the sum of P2,000.00 in Alcantara's hands as rentals of the tractor, and to the end the
same for repairs if necessary.

Respondent and Petitioners submitted an agreement and petition to settle but defendants have
failed to comply with the terms of the agreement. Thus another writ of possession was issued.
Petitioner filed a motion to quash the writ on the ground that it was null and void for the reason
that the judgment sought to be enforced by said order and alias writ of possession has been
satisfied and/or novated by the Agreement. That the alias writ of possession issued has no
longer any force and effect since its life had already lapsed after the expiration of sixty (60) days.

His motion to reconsider having been denied, Alcantara filed with this Court the instant
special civil action. And his request a preliminary injunction was issued to restrain enforcement
of His Honor's aforesaid order of December 10, 1958.

Respondent Judge issued an order for the issuance of an alias writ of possession to enforce the
decision in the case and appointed Guillermo Romero as receiver of the properties involved over
the opposition of the petitioners.

WON alcantara was properly relieved as a receiver


It is not clear what steps the court had in mind when it declared that "plaintiff-receiver
failed to take steps to take possession of the tractor leased to Sablada". It could have meant that
Alcantara failed to take the tractor directly from the hands of Sablada from the place where it
was, without resorting to official help. If the court meant as it must have meant that Alcantara
failed to exhaust judicial remedies to compel Sablada to comply with the order to place the
tractor at the "junction" previously mentioned, then it fell into error, because Alcantara had in
effect, suggested that Sablada be held in "continuous contempt", imprisoned until he placed the
tractor at the "junction"; and the court instead of acting accordingly under Rule 64, sec. 74 held
Alcantara to be negligent, and removed him.

Whether or Not the court orders were issued without jurisdiction which respondent Judge had
lost by reason of the perfection of the appeal?
No, We agree with counsel for the respondents that, although the perfection of an appeal
deprives the trial court of jurisdiction over the case, nevertheless, under the law, said court
retains jurisdiction as regards the preservation of the property under litigation and involved in the
appeal, including necessarily the authority to appoint a receiver who has the power to take and
keep possession of the property in controversy. (Rule 61, Section 1 (d) and Section 7; Velasco &
Co. vs. Go Chuico, 28 Phil., 39; Jocson vs. Presbitero et al., 97 Phil., 6). According to
respondents' answer to the petition, petitioners did not contest the legality and propriety of the
appointment of the receiver; they did not even file a motion for reconsideration of the
appointment. Consequently, it is now rather late to raise the question of the propriety and legality
of the order of the court appointing said receiver. According to the same answer, petitioners

In this connection, it should be observed that in his aforesaid pleading of November

26, 1958, Alcantara even asked for permission to sue Sablada for replevin.
If it was error to remove Alcantara, a clearer error occurred when Bacaron the
defendant was appointed, as receiver without bond, over the objection of Alcantara the

herein are insolvent: the building and improvements involved in the appeal in danger of being
destroyed or impaired; and petitioners have failed to pay the rents at the rate of P500 a month
from August, 1953, up to the date of the answer, June 26, 1956, amounting to about P15,000,
for which the receiver was appointed on October 28, 1955.

which includes the two parcels of land previously sold to Lumampao, for the payment
of taxes due to the Government, attorney's fees and other obligations.

Petitioners insinuate in their petition that the order for the delivery of the property to the receiver
"touches a matter litigated by the appeal, i.e., the physical possession of the petitioners". That is
not correct. The question litigated in the appeal is whether the petitioners or respondent Santos
has a better right to possession. The appointment of the receiver with order to deliver
possession to him does not touch upon, much less decide that question. It merely means that
pending appeal, and to preserve the property and keep the rents, the trial court through its
officer, the receiver, would take possession.

For some unexplained reason, Luis Tupas did not take any action relative to the
foregoing authority, more than three (3) years later, another motion for authority to sell
the same parcels of land mentioned was filed by him with the probate court, again for
the payment of municipal taxes and counsel's services.

The said motion was approved by the probate court.

Luis Tupas sold to Cirilo Dolar the four (4) parcels of land, inclusive of the land
previously sold to Lumampao by Generoso Tupas, Jr. It will be noted that at this time,
the validity of the sale to Lumampao was still pending adjudication in the Court of

Lumampao, in his capacity as intervenor in the settlement proceedings, filed with the
surrogate court an amended motion to set aside the order of the said court insofar as
it authorized the sale of the two (2) parcels of land conveyed to him by Generoso
Tupas, Jr.

Pending decision on his motion to set aside, Lumampao filed with the probate court a
petition for the appointment of a receiver over the two parcels of land conveyed and
adjudicated to him.

The probate court, with Judge Carlos Sundiam presiding, granted Lumampao's
petition, and, appointed the herein respondent Gregorio Lira receiver over the
said parcels of land.

Tupas and Dolar filed with this Court the instant petition to set aside the receivership
order of the court a quo. The court issued a writ of preliminary injunction against the
herein respondents Judge Sundiam, Lumampao and Lira.

The orders of respondent Judge on petitioner's to deliver possession of the property to the
receiver are therefore valid and it was petitioners' duty to obey the same. In view of the
foregoing, the petition for certiorari is hereby denied, with costs.
G.R. No. L-27631 April 30, 1971
CIRILO D. DOLAR and LUIS B. TUPAS petitioners,

Generoso Tupas, Jr. filed a petition for the allowance of his father's will and the
appointment of an administrator for his fathers estate.

After the probate of the will and the appointment of his mother which was later
replaced by Luis Tupas as judicial administrator of the testate estate, Generoso sold
to Lumampao, the two (2) parcels of land bequeathed to him by his father.

Subsequently, a partition was made to the estate, the land previously sold to
Lumampao, were expressly assigned to Generoso Tupas, Jr.

The court upheld the validity of the sale.

Thereafter, a complaint for the recovery of the said two parcels of land was filed by
Lumampao against Generoso Tupas, Jr. and Luis Tupas with the Court of First
Instance of Iloilo, on the ground that the defendants, by use of force, threats, stealth,
strategy and intimidation, deprived him of the possession of the said properties and
gathered all the products therefrom.

WON the appointment of a receiver over the parcels of land subject of the petition of Lumampas
The principal object of the ancillary relief of receivership is to secure and preserve the
property or thing in controversy pending litigation in order that, as far as practicable, a
judicial tribunal, in aid of its jurisdiction, may be able to effectively bestow to the parties

Prior to the final adjudication on the complaint of Lumampao, Luis Tupas filed with the
probate court, a motion for authority to sell four (4) parcels of land of the testate estate

litigant the rights to which they are entitled, or exact from them the obligations to which
they are subject, under the law. Ordinarily, therefore, this remedy will not lie where the
property involved is already in custody of law, such as that in the hands of an executor or
administrator. In these cases, the practical and equitable purposes to be accomplished
under a receivership are then virtually available.

> Morante spouses alleged that they had actual use and possession of the two (2) cargo trucks.
The trucks were, however, registered in the name of petitioner Thomas Yang who was the
Treasurer in the Morante spouses' business of buying and selling corn.
> Morante spouses further alleged that they were deprived of possession of the vehicles and
despite repeated demands, the complaint alleged, petitioner Yang refused to release the trucks
to respondent spouses.
> [Jan 7, 1985] Respondent judge issued an order of seizure directing the Provincial Sheriff to
take immediate possession and custody of the vehicles involved.
> After 3 days, defendant Manuel Yaphockun filed a motion seeking repossession of the cargo
trucks, and posted a replevin counter-bond.
> The respondent spouses reacted by amending their complaint on 13 January 1985 by
excluding Manuel Yaphockun as party-defendant.
> The trial court also ordered the immediate release and delivery of the cargo trucks to
respondent spouses.
> For his part, petitioner Yang moved, on 21 January 1985, for an extension of fifteen (15) days
within which to file an answer to the complaint for replevin. Four days later, on 25 January 1985,
petitioner put up a counter-bond which was rejected by the responded judge for having been
filed out of time.
> Petitioner Yang now argues before us that, firstly, respondent judge had committed a grave
abuse of discretion amounting to lack or excess of jurisdiction in approving the replevin bond of
respondent spouses and that the replevin bond was defective considering that it had been filed
by only one of the two (2) private respondents and that the bondsmen thereon had failed by its
terms to undertake to return the cargo trucks to petitioner should he (the petitioner) be adjudged
lawful owner thereof.

The fact remains, however, that relief by way of receivership is essentially equitable in nature,
and consequently, must be controlled by, and administered on, equitable principles, in the
absence of statutory principles specifically defining or laying out the dimension of its coverage,
scope or application.
The Probate court's order authorizing the sale of the said parcels of land was issued and their
subsequent sale to Cirilo Dolar was consummated prior to the rendition of the judgment of the
Court of Appeals upholding the validity of the sale to Lumampao. Consequently, at the time of
the sale of these two parcels to Cirilo Dolar, the status of such parcels as belonging to the
testate estate or to Lumampao was then still fairly controversial. But the inevitable time-lag that
goes with the disposal of court cases cannot, in the present controversy, alter the fact that the
Court of Appeals' decision on the merits of the controversy below was based upon the validity of
the deed of sale of the said parcels to Lumampao, and, thus, in law, said properties belonged to
him even before the authority to sell them was issued by the probate court to Luis Tupas. Hence,
although the appellate court's decision on the ownership question came later, it nevertheless
had merely the effect of erasing once and for all any doubt or uncertainty about the real
ownership of the said parcels.

Whether or not the responded judge committed grave abuse of discretion in approving
the replevin bond of the responded spouses?

A piece of property which originally is a part of the estate of a deceased person is sold by an heir
of the deceased having a valid claim thereto, and said piece of property is, by mistake,
subsequently inventoried or considered part of the deceased's estate subject to settlement, and,
thereafter, with the authority and approval of the probate court, is sold once more to another
person, a receiver of the property so sold may, during the pendency of a motion to set
aside the second sale, be appointed by the court when in its sound judgment the grant of
such temporary relief is reasonably necessary to secure and protest the rights of its real
owner against any danger of loss or material injury to him arising from the use and
enjoyment thereof by another who manifestly cannot acquire any right of dominion
thereon because the approving surrogate court had already lost jurisdiction to authorize
the further sale of such property to another person.

NO. A bond that is required to be given by law is commonly understood to refer to an
obligation or undertaking in writing that is sufficiently secured. It is not indispensably necessary,
however, that the obligation of the bond be secured or supported by cash or personal property or
real property or the obligation of a surety other than the person giving the bond.
The sufficiency of a bond is a matter that is addressed to the sound discretion of the court which
must approve the bond. In the case at bar, the replevin bond given by the respondent Morante
spouses was properly secured by the sureties themselves who declared their solvency and
capacity to answer for the undertaking assumed.

Under the particular facts of the instant dispute, we find no compelling reason for
disturbing the respondent court's order granting the petition of Lumampao for the
appointment of a receiver over the parcels of land in question.

The other objections to the replevin bond are equally lacking in merit. The fact that the other
respondent, Ricardo Morante, did not act as surety on the same bond as his wife did, does not
affect the validity or the sufficiency of that bond. It would appear to the benefit of petitioner that
Atty. Bayani L. Calonzo signed up as the other or second surety or bondsman on that bond,
since petitioner thereby acquired a right of recourse not only against the respondent spouses but
also against a third person, not a party to the replevin suit. Further, the failure of the replevin
bond to state expressly that it was "conditioned for the return of the property to the defendant, if
the return thereof be adjudged," is not fatal to the validity of the replevin bond. The replevin
bond put up by Milagros Morante and Bayani L. Calonzo stated that it was given "under the
condition that [they] will pay all the costs, which may be adjudged to the said defendants and all
damages which said defendants may sustain by reason of the order of replevin, if the court shall

> Respondent spouses Ricardo and Milagros Morante brought an action in the RTC against
petitioner Thomas Yang and Manuel Yaphockun, to recover possession of two (2) Isuzu-cargo

finally adjudge that the plaintiffs were not entitled thereto." We believe that the condition of the
bond given in this case substantially complied with the requirement of Section 2, Rule 60.
Moreover, the provisions of Rule 60, Section 2 of the Revised Rules of Court under which the
replevin bond was given may be regarded as having become part of the bond as having been
imported thereunto. All the particular conditions prescribed in Section 2, Rule 60, although not
written in the bond in printer's ink, will be read into the bond in determining the scope and
content of the liability of the sureties or bondsmen under that bond.

Respondent Norberto L. Dayrit filed a complaint for Replevin in the Court of First Instance of
Cebu presided by respondent Judge Gomez, against petitioner, Nicanor Pagkalinawan,
Supervising Agent, National Bureau of Investigation, Cebu City, and two members of the Manila
Police Department for the recovery of possession of the aforementioned car alleging that it is
wrongfully detained by the herein petitioner. The respondent Judge issued an order directing the
Sheriff of Cebu City or any proper officer of the court, to take the car into his custody and the
order was implemented by the Clerk of Court by issuing on the same date a writ of replevin.

Petitioner also contends that since the respondent spouses are not the registered owners of the
cargo trucks involved, the writ of replevin should not have been issued. We do not think so. The
provisional remedy of replevin is in the nature of a possessory action and the applicant who
seeks immediate possession of the property involved need not be holder of the legal title to the
property. It suffices, if at the time he applies for a writ of replevin, he is, in the words of Section 2,
Rule 60, "entitled to the possession thereof."

The petitioner contend that he could not possibly comply with said order to deliver the
aforementioned car to the sheriff because he was holding the same in 'custodia legis' for the
Court of First Instance of Manila, the court that issued the search warrant under which the said
car was seized and held in custody; . .

Petitioner would finally challenge the order of respondent judge dated 28 February 1985
rejecting his counter-replevin bond for having been filed out of time. A defendant in a replevin
suit may demand return of possession of the property replevied by filing a redelivery bond within
the periods specified in Sections 5 and 6 of Rule 60.

The respondent Judge issued an order directing the petitioner to immediately comply with the
order of the court and to turn over to the sheriff the car in question upon receipt of a copy of this

Under Section 5, petitioner may "at any time before the delivery of the property to the plaintiff"
require the return of the property; in Section 6, he may do so, "within five (5) days after the
taking of the property by the officer." Both these periods are mandatory in character. Thus, a
lower court which approves a counter-bond filed beyond the statutory periods, acts in excess of
its jurisdiction. In the instant case, the cargo trucks were taken into custody by the Sheriff on 7
January 1985. Petitioner Yang's counter-replevin bond was filed on 25 January 1985.

Petitioner filed an urgent motion for reconsideration of the order and setting aside the writ of
replevin, but respondent Judge after hearing on said motion denied the same in its order.
It was then alleged by petitioner that the aforesaid orders issued by the respondent Judge were
made without or in excess of its jurisdiction, or with grave abuse of discretion; that said orders
would likewise "nullify the purpose and defeat the force and validity of the search warrant issued
by the Court of First Instance, a competent court of equal category;" and "would then cause
confusion in the enforcement and implementation of lawful orders issued by other courts thereby
causing embarrassment in the proper administration of justice.

Hence, it is clear that the prescriptive period for filing a counter-replevin bond must be counted
from the actual taking of the property by the sheriff, subject of the replevin bond and in this
particular case on January 7, 1985. True indeed, that defendant Manuel Yap filed the counterreplevin bond on January 10, 1985, which was denied by this court, that was three (3) days after
the property was taken on January 7, 1985 but when the said defendant was dropped from the
complaint on January 14, 1985, defendant Thomas Yang should have immediately filed the
proper counter-replevin bond after Manuel Yap has been dropped from the complaint. Defendant
Thomas Yang should and must have filed his counter replevin bond within two (2) days from
service of the amended complaint, the same must have been filed on January 18, 1985, to
conform with liberal interpretation of the rules and not on January 25, 1985, for then the counter
replevin bond had been filed beyond the period provided by the Rules. The decisional principle
on the filing of counter replevin bond to entitle the defendant to the redelivery or retaining
possession of the property, is compliance with all the conditions precedent pursuant to the rules,
and failure to comply therewith entitles plaintiff to possession, and the initial steps in obtaining
redelivery must be taken within the time limit provided thereto.

The prayer was for respondent Judge being declared as having acted without or in excess of
jurisdiction or with grave abuse of discretion in thus proceeding in the replevin action and that
pending the final hearing and determination of this petition, an order of preliminary mandatory
injunction be issued directing the respondent Judge to order the return of said car to petitioner,
desisting and refraining until further orders of this Court from acting on the matter.

We agree with the conclusion of respondent judge that petitioner's right to file a counterbond had
already prescribed.

W/N respondent Judge act in excess of jurisdiction or with grave abuse of discretion in granting
the replevin action.

We consider, accordingly, that respondent judge did not commit any grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the orders here assailed.



Petitioner is entitled to the remedy of preliminary mandatory injunction prayed for; the writ must
be granted. It would be to ignore a principle to which this Court has been firmly committed if
under the circumstances disclosed, respondent Judge would be sustained.


It is settled that the jurisdiction to annul a judgment of a branch of the Court of First Instance
belongs solely to the very same branch which rendered the judgment." As aptly stated, any other
branch "even it be in the same judicial district" that would attempt to do so "either excess its
jurisdiction",9 or "acts with grave abuse of discretion amounting to lack of jurisdiction

Nonillon Bagalihog then filed a complaint for the recovery of the motorcycle with an application
for a writ of replevin, in dismissing the case, the respondent judge said he had no jurisdiction
over the motorcycle because it was in custodia legis and only the judge trying the criminal cases
(Makati RTC) could order its release.

The moment a court of first instance has been informed through the filing of an appropriate
pleading that a search warrant has been issued by another court of first instance, it cannot, even
if the literal language of the Rules of Court7 yield a contrary impression which in this case
demonstrated the good faith of respondent Judge for acting as he did, require a sheriff or any
proper officer of the Court to take the property subject of the replevin action if theretofore it came
into the custody of another public officer by virtue of a search warrant. Only the court of first
instance that issued such a search warrant may order its release. Any other view would be
subversive of a doctrine that has been steadfastly adhered to, the main purpose of which is to
assure stability and consistency in judicial actuations and to avoid confusion that may otherwise
ensue if courts of coordinate jurisdiction are permitted to interfere with each other's lawful

Whether or not replevin is proper

We do not find that the importance of the motorcycle in the prosecution of the criminal cases
excused its seizure without a warrant. The crime was committed on March 17, 1989, and the
motorcycle was seized only on March 19, 1989, or two days later. During that period, the private
respondent had all the opportunity to apply for a search warrant and establish probable cause in
accordance with the Bill of Rights and the Rules of Court.
It is true that property held as evidence in a criminal case cannot be replevied. But the rule
applies only where the property is lawfully held, that is, seized in accordance with the rule
against warrantless searches and seizures or its accepted exceptions. Property subject of
litigation is not by that fact alone in custodia legis. A thing is in custodia legis when it is shown
that it has been and is subjected to the official custody of a judicial executive officer in pursuance
of his execution of a legal writ." Only when property is lawfully taken by virtue of legal process is
it considered in the custody of the law, and not otherwise.

The writ prayed for is granted, and the mandatory preliminary injunction issued made
permanent. With costs against respondent Dayrit.

The circumstance that Judge Fernandez ordered the motorcycle to be deposited with the clerk
of court on motion of the petitioner did not place the vehicle in custodia legis. The respondent
judge had no authority over it because it had not been lawfully seized nor had it been voluntarily
surrendered to the court by the petitioner. The action to recover the motorcycle in the RTC of
Masbate will not constitute interference with the processes of the RTC of Makati and that,
consequently, the complaint should not have been dismissed by the respondent judge.

Rep. Moises Espinosa was shot to death shortly after disembarking at the Masbate Airport.
Witnesses said one of the gunmen fled on a motorcycle. On the same day, the Bagalihogs
house, which was near the airport, was searched with his consent to see if the killers had sought
refuge there. The search proved fruitless.
Two days later, the police seized his motorcycle and took it to the headquarters in Masbate.
They had no search warrant. The motorcycle was impounded on the suspicion that it was one of
the vehicles used by the killers. After investigation, the petitioner and several others were
charged with multiple murder and frustrated murder.