RULE 39 JS: Correct.
In fact, the last paragraph of that section likewise mentioned that the
EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS
JS: When judgement is already final and executory, the next thing for the court to
do upon motion will be the issuance of writ of execution. Take note of that. In the
writ of execution, can be filed by mere motion within how many years?
ANS: within 5 years
JS: When would you start counting the five year period? That is very important.
ANS: five years from the date of entry.
JS: Correct! That’s not from the receipt ha of the decision but 5 years from the date
entry of that particular decision with the book of entries of the court concerned. So
if that is within 5 years from entry, according to the law you just file the motion for
execution. In fact, I was telling you as early as we started the semester in motion
for execution actually is one of the so called non-litigated motion. Because even an
ex parte motion for the issuance of writ of execution can be entertain by the court,
because the court can just depend on the entry whether the decision is already final
and executory. Now, if the case was on appeal, let us say from the RTC to CA Cebu
City, and the CA has rendered a decision tapos affirming the decision of the RTC,
no motion for new trial, no motion for reconsideration was filed, not a petition for
certiorari under rule 45 was filed noh before the SC, the CA has issued already an
entry of judgment but it will take time actually to send back the records to the court
of origin. What can be done there? If you want to a motion for execution before the
RTC while the records I repeat of the case are not yet transmitted because I have
to be honest with you, in actual application tlaga, it will take years before the records
of the appealed case are actually sent back to the court of origin. If in case the entry
of judgment has long been issued but unfortunately the records of the appealed
case were not yet transmitted by the appellate court to the court of origin, can you
still file a motion for execution in the court of origin?
ANS: Yes
JS: What you gonna do to support your motion for execution?
ANS: Attach the certified true copies of the judgment of the appellate court in
support of the motion.
appellate court may also direct of course my dear students the court of origin to
issue now the corresponding writ of execution because remember the CA cannot
unless powered to issue a writ of execution. The writ of execution can only be issued
by the court which rendered that particular judgment. So that like what I have said
it will take time for the records of the appealed case to be brought back to the court
of origin. You are in hurry, you could still file a motion for execution but what you
will do there is to attach certified true copy or duplicate original copy of the decision
of the appellate court affirming the decicision of the court of origin. It becomes
ministerial for the court to issue a writ of execution once it is found out that the
judgement is already final and executory. But there can be instances where the writ
of execution can be denied by the court of origin?
ANS: Yes! There are.
JS: That’s why kami, even if the issuance of writ of execution is an ex party motion
meaning to say it is a non-litigated motion because we can just look at the entry. If
there’s already a decision, no appeal, no motion for reconsideration, no certiorari to
the SC, then we have no power but to play safe, still we ha ve to notify. Notify parin
the other party kasi a situation might fall on any of the following exceptions where
the issuance of the writ of execution may be deny by the court.
ANS: (a) When subsequent facts and circumstances transpire which render such
execution unjust or impossible.
(b) On equitable grounds when there has been a change of situation of the
parties which makes the execution inequitable.
(c) When the judgement has been novated by the parties.
(d) When a petition for relief or an action to enjoin the judgment is filed and
a preliminary injunction is prayed for and granted.
(e) Where the judgment has become dormant.
(f) Where the judgment turn out to be incomplete.
JS: In a petition for relief from judgment diba the decision is not stayed, not unless
and until the petitioner was able to get a preliminary injunction. So that in particular
instance if there’s a petition for relief from judgment, the petitioner was able to get
a writ of preliminary injunction definitely the decision subject for the petition for
relief from judgment could not be a subject of the issuance of a writ of execution.
Putting emphasize on the most common one there noh, when there is a change of
situation of the parties tapos when decision has been novated by the parties. When
we say novated, there is a change by the parties then that would definitely grounds
for the court to refuse to issue a writ of execution. And if in case the writ of execution
is denied by the court, what is the appropriate remedy?
ANS: Appeal
JS: Correct! That’s why dba remember, it can be a subject a petition for relief from
judgment, because the law says xxx or in any other proceedings xxx that would
mean I repeat a denial of a motion for the issuance of a writ of execution by the
court. Your remedy there would be to file an appeal. But in the grant, of course of
the writ of execution is not appealable, and the appropriate remedy there is file a
petition dba for certiorari under Rule 65 on the ground of grave abuse of discretion
amounting to lack or excess of jurisdiction. While denial I repeat of a motion for the
issuance of writ of execution is appealable, a grant of the same is not appealable
but there’s an appropriate remedy, if you feel that there was grave abuse of
discretion amounting to lack or excess of jurisdiction in granting the issuance of writ
of execution you always anchor your remedy pursuant to Rule 65 of 1997 Rules of
Civil Procedure.
JS: Diba, we can only file a motion for the issuance of writ of execution within 5
years from the date of entry. Beyond five years, can we still do something for that
particular decision which has long been final and executory?
ANS: Yes.
JS: Yes, but not by motion. Not by motion anymore because a motion should be
filed only within 5 years from the date of entry. Beyond 5 years but within 10 years
you can still do something to file an action for revival of judgment, beyond 10 years
no more.
I repeat, within 5 years from the date of entry you can file a motion for the issuance
of writ of execution, beyond 5 years but should be within 10 years from the date of
entry, you can still do that by filing an action, you call that revival of judgment.
Beyond 10 years no more, you have to file a newly case from the start. I told you
earlier, that the issuance of the writ of execution can only be issued once the
decision is already final and executory. Can there be instances that even if the
decision is not yet final and executory, the writ of execution can be issued by the
court?
ANS: Yes
JS: Yes, this is what we called discretionary issuance of writ of execution. But, when
should it be done?
ANS: During the reglementary period of taking an appeal as long as the court of
origin is still in possession of the records, you can file a motion for the issuance of
writ of execution pending appeal. But once the case on appeal is perfected, and the
records of the case are already transmitted to the appellate court, you can still file
a motion for the execution pending appeal, no longer with the court of origin but
with the appellate court. Can you tell me some good cause, kasi nga in the motion
you have to show good cause to warrant the issuance of the writ of execution
pending appeal. This is what we called discretionary issuance of writ of execution
by way of exception to the rule that issuance of writ execution will only happen
when the decision is already final and executory. But on motion and while within the
reglementary period of perfecting an appeal and while the records are still in the
possession of the trial court, you can file that but you have to show a good cause.
What are some of these good causes which may warrant the issuance of writ of
execution pending appeal?
ANS: 1. Where the appeal is clearly dilatory;
JS: Yes, when the appeal is dilatory. This is somehow discretionary talaga whether
it is dilatory it’s up to the court to determine. Next?
ANS: 2. Where the object subject of the case is perishable;
3. Where the judgment is for support and the beneficiary is in need thereof;
4. Where the lapse of time would make the ultimate judgment ineffective;
5. Where the judgment debtor is in imminent danger of insolvency;
6. Where defendants are exhausting their income and have no other
property aside from the proceeds from the subdivision lots subject of the
action;
7. Where the prevailing party is of advanced age and in a precarious state
of health and the obligation in the judgment is non-transmissible being for
support;
8. Where there is uncontradicted evidence showing that, in order to house
machineries which they were forced to place on a public street, movants
were in extreme need of the premises subject of the suit and the possession
whereof was adjudged to them in the trial court’s decision and the
corresponding bond to answer for damaged in case of reversal on appeal
had been posted by them; or
 9. Where the case involved escrow deposits and the prevailing party posts
sufficient bond to answer for damages in case of reversal of the judgment.
JS: I repeat, you file a motion and you must show good cause with trial court within
the reglementary period for perfecting an appeal and as long as the records are still
in possession of the trial court. Because once the appeal period has already lapsed
and the records of the case were already transmitted to the court of origin, under
our rule 39 you can still pray for the issuance of writ of execution pending appeal
but it is no longer filed with the court of origin but you file that already with the
appellate court. Of course, including these are the one which can be executed
anytime even pending appeal; injunction, accounting, receivership and support my
dear students.
In fact, in support I have to be honest with you there is no finality there. Because
support can be always increase anytime by the court when the situation of the
person who is ordered by the court to give support increases as the years go on,
what will you do is to file motion to increase support because there is no finality as
far as actions for support are concerned. That is why this part of the other three
enumerated by the law which can executed my dear students even if the case are
pending appeal including good causes which are enumerated in the book of
Regalado.
The only problem, however, is how about the decision was executed pending appeal,
oooh my goodness, while the case is on appeal the judgement was reversed totally
by the appellate court, what will happen?
ANS: Rule 39 Sec. 5. Effect of reversal of executed judgment--- Where the executed
judgment is reversed totally or partially, or annulled, on appeal or otherwise, the
trial court may, on motion issue such orders of restitution or reparation of damages
as equity and justice may warrant under the circumstances.
On reversal, the property itself must be returned to the judgment debtor, if the same
is still in the possession of the judgment creditor, plus compensation to the former
for the deprivation and the use of the property. This can be effected by motion to
the trial court.
If restitution is not possible, then compensation should be made as follows:
a. If the purchaser at the public auction was the judgment creditor,
he must pay the full value of the property at the time of its seizure,
plus interest thereon;
b. If the purchaser at the public auction was a third person, the
judgment creditor must pay the judgment debtor the amount
realized from the sale of said property at the sheriff’s sale, with
interest thereon; and
c. If the judgment award was reduced on appeal, the judgment
creditor must return to the judgment debtor only the excess which
he received over and above that to which he is entitled under the
final judgment, with interest on such excess.
JS: The property should be return, of course with be a payment for the use and
occupation of the property but if restitution is not possible, you have no choice but
to memorize that because you cannot make tapal tapal lng. Okay, I repeat when
the court issues motion for execution pending appeal and unfortunately the
appealed decision you want here, the decision was reversed that will be the legal
consequence of what will happen in case of motion for execution pending appeal or
the judgment executed was actually reversed by the appellate court. I remember
there’s one question last week and I’m telling you no problem because there are
proper restitutions which are actually enumerated by our law.
Okay, clear tayo? Including ha injunction, receivership, accounting and support.
These are also I repeat decisions which can be appealed , which can be a subject
of a writ of execution even if the case is pending appeal, including others as long as
you can show I repeat good cause and what is good cause are all enumerated in
the book of Regalado.
Q: Now, can there be certain instances where a motion for execution was granted
by the court but you felt aggrieved with that, you want to quash the writ of execution
issued which is also a remedy. Can there be certain grounds which were enumerated
in our rules? Which may be use as a ground to motion to quash. You can also quash
it every time the execution was issued na, actually you can still a file a motion to
quash. Instead of certiorari because it will take a long time, you can file a motion to
quash the writ of execution on the following grounds:
ANS:
1. When the controversy was never submitted to the court;
2. Change in the situation of parties renders execution inequitable;
 3. Defective in substance;
4. Judgment is already satisfied;
5. Issued against the wrong party; or
6. Issued without authority; or
7. When improvidently issued.
The dispositive portion of the decision is that part that becomes the subject of
execution.
JS: Instead of filing a petition for certiorari, which will take time talaga, you better
file a motion to quash the writ of execution anchored on the enumerated grounds.
In terms of execution of judgment for money, what is the procedure there?
ANS: (SEE Rule 39 Sec. 9)
JS: The losing party has given the choice as to what property shall be executed. In
case the losing party does not make a choice, personal property shall first be
executed. If in spite of the execution of the personal properties is insufficient they
can go to the real property. The real properties would be the last subject for
execution. Note, those properties which are exempted from execution.
Note: in cases when the court grants an execution pending appeal, the remedy
there of the other party to prevent the execution pending appeal is to file a
supersedeas bond in an amount to be fixed by the court and that is conditioned for
whatever damages will be caused later to the applicant.
Q: Levy of the Sheriff?
A: It is the appropriating of the property of the judgment debtor by the sheriff.
Ok when the sheriff Is now executing, he has to levy certain properties to pay off
the liabilities pursuant to the judgment, when the sheriff sets part of the property
as payment of this particular judgment that is in simple explanation what is levy
kasi usually naman in cases of execution the sheriff has always have to levy kasi
diba the sheriff has to pay certain properties which belong to the losing party to
satisfy the decision rendered by that particular court whose decision is subject of
the writ of execution. Now, if the decision cause yesterday we were talking about
money judgment and now a money judgment claim diba demand muna then choice
of the part of the losing party, if no choice personal property then next will be real
property now what about if the judgment is for title, or delivery of deeds, mga
judgment which requires specific acts and where lies the difference to this what we
call special judgment.
Villasi v Garcia
G.R. no. 190106 January 15 2014
(Make sure to read this one kay ginmention ni Sir na magawas daw ini exam. May
authority an iya pagyakan so please take note of that! hehe)
Q: What is the difference between a judgment which compels or orders the losing
party to surrender titles, deeds or to do specific acts to that special judgment in
point of view to that particular, where lies the difference between the two?
Ans: From special judgment cause in a special judgment this is a special
judgment which requires the performance of an act but here it should only
be done by the losing party because the court cannot order another party
to perform that particular act. That’s the difference between delivery of title
and deeds or doing specific acts to that of a special judgment where practically in
terms of application the same cause you are required to perform an act as
mandated in the decision, the basis likewise is the specific act if in case the party
obliged to perform does not do it, the court can order another person to do it but
in a special judgment, no, it is only the person diba who should perform, the losing
party pursuant to the judgment, failure to comply would mean contempt of court so
please take not of that.
Q: What is the concept of terceria?
Ans: This is the procedure if the property subject of the execution is claimed by a
third person. This will apply in an instance when the property levied subject of the
execution is claimed by a third person.
Note: (VERY, VERY IMPORTANT DAW INI, AS IN MAKADAMU GIN-
EMPHASIZE. Better memorize and internalize and put this in your heart.
RULE 39, Sec 16).
Section 16. Proceedings where property claimed by third person. — If the
property levied on is claimed by any person other than the judgment obligor
or his agent, and such person makes an affidavit of his title thereto or right
to the possession thereof, stating the grounds of such right or title, and
serves the same upon the officer making the levy and copy thereof, stating
the grounds of such right or tittle, and a serves the same upon the officer
 making the levy and a copy thereof upon the judgment obligee, the officer
shall not be bound to keep the property, unless such judgment obligee, on
demand of the officer, files a bond approved by the court to indemnity the
third-party claimant in a sum not less than the value of the property levied
on. In case of disagreement as to such value, the same shall be determined
by the court issuing the writ of execution. No claim for damages for the
taking or keeping of the property may be enforced against the bond unless
the action therefor is filed within one hundred twenty (120) days from the
date of the filing of the bond.
The officer shall not be liable for damages for the taking or keeping of the
property, to any third-party claimant if such bond is filed. Nothing herein
contained shall prevent such claimant or any third person from vindicating
his claim to the property in a separate action, or prevent the judgment
obligee from claiming damages in the same or a separate action against a
third-party claimant who filed a frivolous or plainly spurious claim.
When the writ of execution is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such bond shall
not be required, and in case the sheriff or levying officer is sued for damages
as a result of the levy, he shall be represented by the Solicitor General and
if held liable therefor, the actual damages adjudged by the court shall be
paid by the National Treasurer out of such funds as may be appropriated
for the purpose. (17a)
Q: When in the process of the execution or levy of the properties it was found out
that this particular property was actually claimed by a third person in that instance
what should the sheriff do?
Ans: The winning party there would file a bond and indemnify the third party.
Remember the terceria thing here is also granted another option to file a case the
parties involved if it turns out that the property being levied by the sheriff is
claimed by a third person he is not bound to keep the property. Meaning to say the
property might be given to the third party claimant not unless the judgment
obligee for example would actually post a bond conditioned upon payment of
whatever damages which may turn out later my dear students if the third party
claimant turns out to have a rightful claim as far as this particular property is
concerned in fact he is not even liable for whatever damages as a consequence of
not keeping the property because there is my dear students a bond posted by the
judgment oblige pursuant to section 16 of this particular law.
Q: Actually what the third person must do is what? If he has a claim over the
property subject of that particular execution, what should you do?
Ans: The sheriff is not bound to keep the property not unless the judgment obligee
would actually post a bond but if a third person claim what should you do under the
circumstances because you said no, that property belongs to me, I have a claim to
that particular property when there is this sheriff who wants to execute under the
circumstances prior to that concept that the sheriff is not bound to keep the property
not unless there is the posting of a bond on the part of the judgment obligee he
should just submit an affidavit stating his right or title for possession of that
particular property served that particular affidavit to the sheriff and that already
complies with what section 16 requires. So please take note this is a very very
important my dear students section in rule 39.
Although the damages for keeping or taking the property maybe enforced against
the bond as long as it is filed within the period of 120 days from the date of filing
of the bond so please take note of that, in fact he is not liable for damages for not
keeping the property as clearly found in this particular provision but this will not also
prevent the third party as ordered in this particular section to file a separate action
against the judgment oblige.
Q: can there be instances when the law allows the issuance of the writ of
possession? And this will happen when?
Ans: In land registration cases, extrajudicial foreclosure of mortgage, judicial
foreclosure.
Q: Is there no qualification as to that particular part, judicial foreclosure of mortgage
where the court under our law can actually issue a writ of possession as part of the
execution of that particular judgment, is there no qualification there? Simply
because it is a judicial foreclosure of mortgage, automatically the court is allowed
to issue a writ of possession to actually install the winning party to the possession
of that particular property,
I repeat writ of possession can be issued in the ff cases: land registration
proceedings kasi diba land registration proceedings are proceedings in rem then
extrajudicial foreclosure under act 3135 then judicial foreclosure of mortgage but
there is a qualification there, provided that the mortgagor is in possession of the
mortgage property and that no third person is actually claiming that particular
property no person intervened in the execution and third in cases of execution,
sales, like where I repeat real properties are actually sold by the sheriff to pay off
the liability of the judgment obligor, there are procedures on how the sales shall be
effected if in case what is involved is real property or a real property is involved to
satisfy a judgment in court.
Q: how is execution sale done in execution involving real properties?
Ans: It is done by public auction/bidding, it must be done with notice sent by way
of summary but there is redepmtion there, is there a redemption? It depends if it
is personal property, there is no redemption because remember once a property
diba is taken by the sheriff by way of satisfaction , these particular properties are
actually sold in public auction, and that means to say sold to the highest bidder.
Q: Ok, now apart from that there must be notice because failure to send notices will
affect the validity of that particular sale if I make a summary but in case a personal
property is sold in a public bidding, the law allows redemption and the redemption
would be when?
Ans: Within 1 year, this is what we call legal redemption in execution sale so we
are not talking here equity of redemption , we are talking here about a legal
redemption in execution sale but this is only I repeat if what is sold in public auction
is a real property because there is no redemption if what is sold is personal property.
Q: when would you count the 1 year period?
Ans: From the time the sheriff certificate of sale, I repeat if there is a public bidding
and there is a highest bidder, the sheriff issues a certificate of sale, and what would
you do with that sheriff certificate of sale? Otherwise the 1 year period of
redemption would not commence or would not start. It should be registered in the
office of registry of deeds in the city or province where the property is located and
you count the 1 year period of redemption from the date that particular sheriff
certificate was registered meaning to say.
Q: If no redemption is made, what will happen? can the winning party in a case
claim already ownership and possession of that particular property if the sheriff
issues certificate of sale?
Ans: Not yet, you can have no right yet to claim because that right would only come
in after the redemption period has expired and no redemption was made by the
persons enumerated in the law
Q: after that since there was no redemption by the persons enumerated in the law
then what should the sheriff do there?
Judge: That is where the right of ownership and title to the property would now
come in the winning party to that particular case subject of execution, issue a final
certificate of sale and once the same is issued he can now claim ownership and title
of the property but that final certificate of sale must also be registered because that
is the basis for the issuance of a new title in favor of the winning party hence after
the issuance of the title in favor of the winning party because the final certificate of
sale was already made and it is found out that the losing party refuses to vacate the
property the court now can issue a writ of possession on mere motion, that is why
I told you in execution sale there can be issuance of a writ of possession, you did
not file a petition there, what you will do is just file a motion for issuance a writ of
execution because in reality more often than not, the losing party will never vacate
the property so how can the winning party step into the property now, the best
thing to do is file a motion in that court for the issuance of a writ of possession to
place the winning party in possession of that property subject of the execution sale,
so that is the process as far as our rules.
Take note of Sec 47 that talks about Res Judicata and Effect of Foreign
Judgment by Final Orders.
Section 47. Effect of judgments or final orders. — The effect of a judgment
or final order rendered by a court of the Philippines, having jurisdiction to
pronounce the judgment or final order, may be as follows:
(a) In case of a judgment or final order against a specific thing, or in respect
to the probate of a will, or the administration of the estate of a deceased
person, or in respect to the personal, political, or legal condition or status
of a particular person or his relationship to another, the judgment or final
order is conclusive upon the title to the thing, the will or administration or
the condition, status or relationship of the person, however, the probate of
a will or granting of letters of administration shall only be prima
facie evidence of the death of the testator or intestate;
 (b) In other cases, the judgment or final order is, with respect to the matter Ans: If specific thing, conclusive upon the title of the thing but if it is not in reference
directly adjudged or as to any other matter that could have been missed in to specific thing it is only a presumptive evidence of a right as between the party
relation thereto, conclusive between the parties and their successors in under successors in interest in the second title
interest, by title subsequent to the commencement of the action or special
Q: can u do something to repel that particular foreign judgment? Can u question
proceeding, litigating for the same thing and under the same title and in the
that particular foreign judgment in Philippine courts?
same capacity; and
Ans: Yes. it can be repealed by evidence of want of jurisdiction, want of
(c) In any other litigation between the same parties or their successors in
notice to the party, collusion, fraud or clear mistake of law or fact so
interest, that only is deemed to have been adjudged in a former judgment
meaning to say a foreign judgment against a person in our local courts, that person
or final order which appears upon its face to have been so adjudged, or
is allowed to interpose these particular defenses as provided for in the last paragraph
which was actually and necessarily included therein or necessary thereto.
of section 48 but be that as it may the judgment of a foreign court is only a
(49a)
presumptive evidence of a right on the part of the prevailing party and if suit thereon
I will just emphasize that res judicata has two forms: bar by prior judgment and is brought in the Philippines, the same may be repealed by evidence of clear mistake
conclusiveness of judgment. Res judicata should be a decision based on the of law so meaning to say, simply put it cannot be subject for motion for execution
merits of the case say this is a decision which was rendered by the court after what you will do is file a civil case and use that as a basis for civil case thats why
consideration the evidences presented by the parties or stipulations submitted by the other party who may be aggrieved of that foreign judgment is allowed to raise
the parties, there must be a trial on the merits of the case so that if a case is these particular defenses
dismissed because the plaintiff did not appear during the pre-trial conference
therefore the plaintiff was non suited which is a ground for dismissal of that
particular civil complaint following sec 47 we cannot therefore make a conclusion
that that dismissal constitute a res judicata because that dismissal is actually not a
dismissal based on the merits of the case meaning to say there was no trial
conducted where the parties were given an opportunity to present their respective
evidence.

Almeda vs. Cruz

The doctrine of res judicata does not apply where the second action is precisely to
annul judgment because there are remedies, one of which is petition for review from
judgment, you have annulment of judgment so if you file a civil case later to annul
the judgment because there was extrinsic fraud that would not constitute as res
judicata because the second action is precisely to annul the first case where the
court rendered a decision.

Q: What is the effect of foreign judgments?

Ans: It depends if it is in rem or in personam.

Q: Can it be enforced in the Philippines?

 RULE 40
APPEAL FROM THE MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL
COURTS
Appeal from MTC to the RTC An appeal from the first level court to the RTC is by
filing a NOTICE OF APPEAL in the court which rendered its judgment within 15 days
from receipt of the judgment of the court , except in cases when the law allows
multiple appeals and in special proceedings where the law requires not only notice
of appeal but also record on appeal within 30 days. Including the payment of the
appeal fees.
Q: When appellant does not pay the appeal fees required upon filing the notice of
appeal, the court will issue an order requiring the appellant to pay the appeal fees
within a certain period, and upon failure of which the court can now dismiss the
appeal. Q: What are cases where the law allows the filing of multiple appeals?
A: Partition, Expropriation then Judicial Foreclosure of Mortgage including
Settlement of Estate of the Diseased Person. Therefore notice of appeal, payment
of filing fee and record on appeal is required, and it must be done within 30 days.
Note: A timely filing of a motion for reconsideration or new trial interrupts the
running. Also apply the FRESH PERIOD RULE of Neypes Vs. CA. Appeal period
should be strictly construed but, in some cases, the SC allowed the filing of an appeal
even on the 16th day, in the greater interest of substantial justice. Motion for
extension of time to file appeal is DEFINITELY NOT ALLOWED.
1. Upon receipt of the NOTICE OF APPEAL, the first level court shall transmit all the
records of the case to the RTC, and upon receipt of the entire records by the
RTC, the Clerk of Court shall issue a notice to the parties and counsel, informing
the parties that the records of the case were already received by the RTC and
order the appellant to file the Appeal Memorandum within 15 days from receipt
of that order, furnishing a copy thereof to the appellee who is given the same
time upon receipt of the appellant’s memorandum, to file the appellee’s
memorandum.
2. Failure to file the appeal memorandum on the part of the appellant within 15
days from receipt of the order, it shall be a ground for the dismissal of the appeal.
3. The appellant’s memorandum shall contain among others mentioned in the book,
the so called Assignment of Errors, because this is where the court will focus
when the court renders its decision in connection with the appeal of the appellant.
4. Upon receipt of the Appellee’s memorandum, the case is now deemed submitted
for the decision of the Appellate Court. SECTION 8: Appeal from orders dismissing
the case without trial; lack of jurisdiction. If an appeal is taken from an order of
the lower court, dismissing the case without a trial on the merits, the RTC may
affirm or reverse it as the case may be. In case of the affirmance and the ground
of dismissal is lack of Jurisdiction over the subject matter, the RTC if it has
jurisdiction thereover , shall try the case on the merits as if the case was originally
filed with it. In case of reversal, the case shall be remanded (to the first level
court) for further proceedings. -If the ground for dismissing from the first level
court is lack of jurisdiction over the subject matter, and the court RTC finds out
that indeed it has jurisdiction, it will decide the case on the merits, as if the case
was originally filed before said court. However, in case of reversal, it will remand
the case to the first level court for further proceedings. (from first level court to
the RTC) If the case was tried on the merits by the lower court without jurisdiction
over the subject matter, the RTC on appeal shall not dismiss the case if it has
original jurisdiction thereof, but shall decide the case in accordance with the
preceding section, without prejudice to the admission of amended pleadings and
additional evidence in the interest of justice. -even if the case is tried on the
merits or not on the merits, in cases of dismissal, on the ground of lack of
jurisdiction over the subject matter, the RTC will acquire jurisdiction and try the
case on the merits as if the case was originally filed in said court, however if it is
a dismissal based on the merits of the case, the court may require the parties to
submit amended pleadings and additional evidences which will guide the court in
rendering its decision as far as that case is concerned.
 RULE 41:
APPEAL FROM REGIONAL TRIAL COURT TO COURT OF APPEALS
Modes to be considered: 1. Determine whether this case was decided by the RTC
in its original jurisdiction, or the case was decided by the RTC in its appellate
jurisdiction (from MTC-RTC).
a. If decision was decided by the RTC in the exercise of its ORIGINAL
jurisdiction, appeal is done, by means of filing a NOTICE OF APPEAL,
(15 days) payment of appeal fees, except in cases where it is a case
which is special proceedings or when the law allows multiple appeals,
because aside from notice of appeal, you also have to file a Record on
Appeal (30 days). Since you are in Tacloban City, our appeal to the CA
is in Cebu City, Mindanao is in Mindanao Coart of Appeals in Cagayan,
Manila is in Manila. You file the appeal in the court which rendered the
decision.
b. If decision was decided by the RTC in the exercise of its APPELLATE
jurisdiction (MTC->RTC->CA), appeal is done, by means of filing a
PETITION FOR REVIEW under RULE 42, (15 days) payment of appeal fees,
except if your appeal is purely on question of law, where you can go to the
SC by way of a PETITION FOR REVIEW ON CERTIORARI under RULE 45.
You file the appeal with the CA not in the RTC.
2. You notice in SEC 1, APPEAL IS NOT ALLOWED, of rule 41, it enumerated
7 cases where appeal is not the proper remedy. Denial of a motion for execution
where in one decision by the SC, the proper remedy is actually appeal. In any of the
7 instances, if you feel aggrieved the remedy there is Petition for Certiorari under
Rule 65 on the ground of Grave Abuse of Discretion amounting to lack or excess of
jurisdiction either by certiorari, mandamus or prohibition. The 7 instances in section
1 are actually merely Interlocutory Order because in such case the best remedy is
RULE 65. Because what can be appealed are actually final judgements or orders.
3. Final Order-finally disposes of the case, like motion to dismiss is
GRANTED.
4. Interlocutory Order-something is still to be done by the court. Like motion
to dismiss when DENIED.
5. GR: File a petition for certiorari, mandamus or prohibition based on rule
65 , dapat you have to file a motion for reconsideration, in order for the court to
correct his mistake, otherwise if you will not, the petition for certiorari may be
dismissed by the court on a minute resolution. XPN: Even without Motion For Recon,
you can still go to the SC but we will discuss that when we reach 65.
6. Since you are in Tacloban City, our appeal to the CA is in Cebu City,
Mindanao is in Mindanao Court of Appeals in Cagayan, Manila is in Manila.
7. If you notice that the subject of the case is actually an Interlocutory
order, your remedy there is actually. Petition for Certiorari under Rule 65 and anchor
that on the ground of Grave Abuse of Discretion amounting to lack or excess of
jurisdiction. Because the subject of appeal are judgment or final orders. Don’t forget
that for your brain damaging final exam which is more difficult that midterm
8. In connection with this particular concept, like what I said ha? I just
forgot, it is 15 and 30 days lang ha except for habeas corpus cases where the appeal
there must be filed within 48 hours from notice of final order appeared from.
9. When you avail of either Ordinary Appeal, or Petition for Review under
Rule 42, Petition for Review on Certiorari under Rule 45, or Petition for Certiorari
under Rule 65, we apply the so called MATERIAL DATA Rule—you have to specify
when you have received the decision as an added requirement by virtue of one SC
Circular. Otherwise the petition might be dismissed.
10. you know what, making Record on Appeal is so tedious and so tiring,
because you have to enumerate from the start of the proceedings down to the last.
It must comply with certain forms, that’s why the lawyer can ask for more attorney’s
fees, in fact the record on appeal if it is sufficient in form and substance, upon
receipt by the appellate court, it has to be approved, even if it is not set for hearing
(as one particular decision by the court) it should be approved. If no objection is
filed, it would be approved within 10 days as presented, if there is objection or a
need for amendments the court may order for the amendments of the record on
appeal.
11. Section 9—perfection of Appeal – as to the appellant, upon the filing of
notice of appeal in due time but the court does not lose jurisdiction simply because
it has already approved the notice of appeal. Because the court only loses jurisdiction
over the case upon the expiration of the period to file an appeal. Take note of that.
For example: On the 5th day you file a Notice of Appeal, on the 6th day, it was
approved by the court, on the 7th day you file a motion to withdraw the appeal, can
the court still act on the withdrawal> YES. Because the court only loses jurisdiction
of the case upon the expiration of the 15 or 30 day period to appeal. In fact, if the
15 or 30 day period to file appeal is already expired, when the records of the case
are not yet transmitted to the CA, the court can still exercise what we call RESIDUAL
JURISDICTION (last paragraph of SECTION 9). (I always ask this in the FINALS).
This will cover an instance where the appeal period has expired na but the records
on appeal has not yet transmitted pa to the CA, the court may still exercise what we
call residual jurisdiction for example to issue mga execution pending appeal,
approved compromise agreement, permit of indigent litigants or even allow
withdrawal of the appeal. These are what we call Residual Jurisdiction of the RTC
while the records of the case are still within the court. (last paragraph of Section 9
memorize!! Para perfect)
12. As far as Record on Appeal is concerned it is also deemed perfected
upon the approval of the record on appeal filed in Due time.
13. Upon perfection of the appeal with the RTC, the clerk of court has 30
days to verify the correctness of the record, the completeness of the record on
appeal and after that transmit the records to the CA together with the transcript of
stenographic notes of all of the witnesses presented, in 5 legible copies.
14.Section 13, part of the residual powers of the RTC. Prior to the
transmittal o Notice of Appeal and Record on Appeal to the Court of Appeals, the
Trial court may dismiss motu proprio or upon motion the appeal made out of time
or for non-payment of the docket and lawful fees within the reglementary perion.
But when the records on appeal were already transmitted to the CA, can you file a
motion to dismiss (because of nonpayment of the lawful fees within the
reglementary period or made out of time) before the CA? yes. Before the CA.
RULE 42
PETITION FOR REVIEW FROM THE EGIONLA TRIAL COURTS TO THE
COURT OF APPEALS
&
RULE 43
APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL
AGENCIES TO THE COURT OF APPEALS
What happened in the case of Villasi vs Garcia?
What is that remedy there that can be availed by a third person claiming that the
property actually should not be a subject of execution because the third party claim
that he’s supposed to be the owner of that particular property, that’s actually part
of what we call “Terceria”, but apparently one of the beautiful part of the case of
Villasi vs Garcia is the Supreme Court gave another remedy. What is it? It need
not be a separate action. It is another remedy; the third party claimant
can now just file a Motion for Summary Hearing so that he will enable to
ventilate his claim over that property subject in that case. So there is an
added remedy here available to a third claimant whose property is subject
of execution by the sheriff. He can file in the same court a motion for the
conduct of a summary hearing for him to be able to ventilate actually his
claim. That’s the first time that the Supreme Court added another remedy
as far as a 3rd claimant whose property is subject of a writ of execution.
That’s make it a very important 2014 decision of the Supreme Court.
Q: There was a hanging question which was left last night. What is the effect if, is
it required that basically all the appellees must be notified of the notice of appeal?
What is the effect if one of the appellee is not notified of the notice of appeal filed
by the appellant, and would that affect the validity of the notice of appeal?
A: All parties must be notified because that might create a defect as far as the
notice of appeal is concern.
Q: If you can recall di ba there is a 15 day period or a 30 day period I’m referring
to appeal to the RTC from the first level court or from the RTC to the Court of
Appeals. Can there be an instance where the application of that 15 day or 30 day
period be relax? That even if the appeal is filed in the 16th day, can it still be given?
Can that be extended? Can that be still granted by the court?
A: You know what, the recent decision of the Supreme Court says “NO”. Because
this 15 day and 30 day period actually my dear student, are supposed to be strictly
construed. While there is a provision in the Rules of Procedure wherein there must
be liberal interpretation of the rules of procedure except daw appeal period.
Last night I told you that in case one would appeal and the others will not, that
would not affect those who did not appeal. Except however in Criminal Procedure
when one accuse appeal and the appeal is favorable to him it can also be given.
There is one case (Republic vs Institute for Social Concern G.R. No. 156306)
however which will fall as an exception to that, wherein the Supreme Court in that
particular case actually applied the result of the appeal to the defendants who
actually did not appeal, because in that case the Supreme Court found out that the
claims of the defendants are so interwoven to each other.
Q: What is one requirement which should be in a record on appeal which is
mandatory daw and jurisdictional? The record on appeal must show what?
A: The record on appeal must show that the appeal was filed on time and that
should form part of what is in the record of appeal. Because the Supreme Court
ruled that, that particular requirement is actually mandatory and jurisdictional. The
record on appeal need not be scheduled for hearing, and if it is scheduled for hearing
and the counsels did not appear, it is not a ground for dismissal of the appeal.
Q: What should be done upon submission of the record on appeal? What will happen
here under the Rules? Here is a record on appeal filed by the appealant, It showed
on its face that it is filed on time, can the appellee do something there? Can the
appellee file objections to the record on appeal?
A: The appellee is given 5 days to file his objections and after the 5 day period, the
court, may either approve the record on appeal or may order certain amendments
as far as the record on appeal is concern. That is what is important, it’s not the
hearing, but the fact that the appellee is given 5 days actually to file his objection
to the record on appeal. After the lapse of the 5 day period, the court may either
approve the record on appeal or actually may order the amendment because certain
portions of the record on appeal are not in accordance with the form as required by
the Rules.
Q: Can you extend the filing of the record on appeal? Is it allowed by the Rules?
A: As a Rule pwede, at the end of the day anyway, whether the record on appeal
should be granted or not is actually discretionary on the part of the court. Whereas,
settled that the notice of appeal cannot be extended but as far as the submission of
the record on appeal is concern we are not replete with decisions when the Supreme
Court allowed extension of time to file a record on appeal. But the fact remains that
the period to file a notice of appeal cannot be extended by reasons of public policy
as held by the Supreme Court in GSIS vs Gines G.R. No. 85273.
Q: Now upon the submission of the record on appeal, what should be done by the
clerk of court?
A: The clerk of court will issue an order to the appellant if the record on appeal
needs modification.
Q: What about transmittal of the record of the case to the Court of appeals, within
how many days?
A: 30 days. Within 30 days from the time the appeal is already perfected. The rule
says that the clerk of court of that court must now transmit the records of the case
to the court of appeals.
Q: But can one who filed an appeal still allowed to withdraw his appeal? When will
that happen?
A: Yes. Within 15 days.
Q: What about if the 15 day period has already lapse?
A: No more na.
Q: What about, can the court still issue an order dismissing the appeal? When will
that happened?
A: Yes. Before the records are transmitted to the appellate court.
Q: However if the records on appeal were already transmitted to the Court of
Appeals, Can you still file a motion to withdraw the appeal?
A: Yes. But it should be filed now before the appellate court.
I repeat, according the rules within 30 days after the appeal is perfected, the clerk
of court is ordered to transmit records of the appeal to the appellate court but prior
to the transmittal of the records, the court can still issue an order dismissing the
appeal for failure to comply with the rules and the payment of the appeal and docket
fees. It can even be done on motion or motu propio by the court but however once
the records of the case are already transmitted to the appellate court, you can still
file a motion but don’t do that on the trial court but to the appellate court. Meaning
to say, that is part of what we call “Residual Power” of the court wherein certain
acts can be exercise by the court prior to the transmittal of the records of the case
and that is one of those including motions for execution pending appeal.
Last night we already have the opportunity to talk about petition for review under
Rule 42, and this petition for review under Rule 42 is the appropriate remedy if this
is a decision issued by the RTC in the exercise of its appellate jurisdiction. Meaning
to say, from the first level court a notice of appeal was filed to the RTC. The RTC
affirm the decision of the first level court, you are aggrieved you want to further
question that, you do that by a petition for review under Rule 42 of the 1997 Rules
of Civil Procedure.
Q: How many days to file a petition for review under Rule 42? Can it be extended?
A: 30 days from the receipt of the decision or order denying the motion for
reconsideration or motion for new trial. It can be extended not to exceed for 15
days by filing a motion for extension to the Court of appeals accompanied by
payment of the required appeal and docket fees. You can do that in reality buy
postal money order, you attach that to your motion for extension of time to file your
petition, because if you only file an extension, without the accompanying payment
of appeal and docket fees, then definitely your motion will be denied.
Q: In filing a petition for review what is the content?
A: Material data Rule, Certification of Non forum shopping, Proof of Service,
Assignment of errors, original copy or duplicate original copy or certified true copy
certified by the clerk of court (see Rule 42 Section 2. Form and contents). Because
noncompliance with these would mean that it would be a ground for your petition
to be dismissed right away in a minute resolution.
Q: How many copies?
A: 7 copies.
Q: if the court finds merit to the petition, what would the court do?
A: It will give due course. The court will require the respondent to file his comment
to the petition within a period of 10 days. It must be in 7 copies.
Q: Can the court dismiss right away the petition? What are the grounds for dismissal
of the petition?
A: Yes. The Court of Appeals may require the respondent to file a comment on the
petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the
petition if it finds the same to be patently without merit, prosecuted manifestly for
delay, or that the questions raised therein are too insubstantial to require
consideration.
Q: Is the filing of the petition for review stay the award or decision.
A: Yes. Unless otherwise ordered by the court itself it will stay. Meaning to say, the
decision subject of the petition will not yet be executed not unless this will cover
cases covered by the Rules on Summary Procedure.
That is why in forcible entry and unlawful detainer cases even if there is a pending
petition for review in the Court of Appeals, under Rule 42 that will not prevent the
execution of the questioned decision, because the rule is very clear it will stay the
decision except lang for cases covered by the Rules on Summary Procedure. If you
want to play safe talaga, because there is a qualification there, “unless the rules
provide otherwise”. In your petition for review, you always claim for the issuance of
the writ of preliminary injunction or writ of temporary restraining order kasi if that
is issued by the Court of Appeals then definitely even if these are cases covered by
the Rules on Summary Procedure that will not be the subject of the execution, but
in the absence of the writ of preliminary injunction or writ of temporary restraining
order and the case is a case covered by the Rules on Summary Procedure, even if
your petition for review is pending before the Court of Appeals, that cannot be
stayed. Meaning to say, it can be the subject of execution. But all other, the rule
says it will stay even if the petition for review is pending.
Q: Now we go to Rule 43, what will Rule 43 cover?
A: No more na Court of Tax Appeals because CTA is now appealable to the Supreme
Court via petition for review on certiorari under Rule 45, although the rule still
mention that, you take that out there. It will also cover quasi-judicial agencies, see
na lang Section 1. Rule 43 for the enumeration.
Q: If you’re aggrieved of the decision of the voluntary arbitrator, what is the
remedy? Is it covered by Rule 43?
A: Yes. Decisions of the Voluntary Arbitrators, as mandated by the Labor Code of
the Philippines are also via petition for review under Rules 43.
Q: How about decisions of the National Labor Relations Commission (NLRC)? Is it
covered by Rule 43? What is the remedy?
A: No. The appropriate remedy is petition for certiorari under Rule 65 but not with
the Supreme Court but to the Court of Appeals. This is a case where 65 is not filed
before the Supreme Court, but it is filed in the Court of Appeals. Whether it is pure
question of law or mixed question of law and question of facts, the remedy for NLRC
decision is not 43 but rather, Court of Appeals pa rin but you anchor that on Rule
65, petition for certiorari on the ground of grave abuse of discretion amounting to
lack or in excess of jurisdiction.
Q: Will 43 also covered decision of the Office of Ombudsman in Administrative
Disciplinary cases?
A: Yes it is covered likewise.
Q: What about decisions of the prosecutor’s office finding the existence of probable
cause? Can it be a subject of a petition for review under Rules 43?
A: No. The remedy is Rule 65 petition for certiorari, on the ground of grave abuse
of discretion amounting to lack or in excess of jurisdiction.
Q: When would you file the petition under Rule 43?
A: Within 15 days. The same with 42, basically the requirements are the same with
42. All rules and procedure are the same with 42 and 43.
Q: Where lies the major difference of Rule 43 from Rule 42? One difference worth
remembering and that will spell out the difference between 42 and 43?
A: In terms of whether the judgment would be stayed or not. In Rule 42 judgment
is stayed except if covered by Rules on Summary Procedure. In Rule 43 judgment
is not stayed not unless the Court of Appeals or the law provide otherwise.
So here if you file a petition for review under Rule 43, and you want that the decision
subject of the petition will be stayed, dapat your petition must always be with a
prayer for the issuance of a temporary restraining order or writ of preliminary
injunction because unlike in 42 where the filing of the petition for review stays the
award of the decision in 43 no. The rule is clear, the filing of the petition for review
under Rule 43 will not stay the award decision unless the Court of Appeals or the
law provides otherwise. Actually what you do is, when you file a petition for review
under Rule 43 your petition must always contain a prayer for the issuance of a
temporary restraining order or writ of preliminary injunction because that is the only
ground upon which the quasi-judicial agency concerned which rendered the decision
will not execute the decision yet pero if there is none, that will not prevent the
execution of the decision because the law is very clear that it will not stay the award
the decision subject of the petition for review under Rule 43.
By the way, in multiple appeals di ba there are cases where multiple appeals are
allowed, of course the case will be retained by the trial court, what is only appealed
my dear students is the subject of the order subject of the appeal. Unlike diba in
cases where there is no multiple appeals because diba the court loses jurisdiction
upon the perfection of the appeal and upon the lapse of period to appeal, as far as
other parties are concern, that is what will happen, because in multiple appeals,
there are only orders which can be appealed and the case itself remains with the
court di ba I told you, partition, settlement of estate, expropriation proceedings,
judicial foreclosure of mortgage, these are some of the cases where the law allows
multiple appeal.
The Court of Appeals by the way, will also issue an order requiring the RTC or the
Quasi-judicial Agency to transmit all available records pertaining to the case if there
is a pending petition for review filed.
Sir Sabarre: In connection with periods for appeal, are there cases where the
appeal period is shorter n the usual 15 to 30 days? What will be the cases?
Answer: In cases of Habeas Corpus appeals because under the law the period will
be 48 hours from the receipt of the decision of that particular case, I repeat not 15
nor 30 days but 48 hours only.
RULE 44
ORDINARY APPEALED CASES
Sir Sabarre: We are now on the procedure which is not so important to me in the
Court of Appeals, once the case is already on appeal with the Court of Appeals,what
is usually done in the Court of Appeals? Diba remember 30 days to transmit the
records of the case Court of Appeals, for example lang, there’s some clerk of court
who are ActualY, not performing their job and you notice that 30 days had already
lapsed after the appeal was approved, the record on appeal for other cases have
been submitted na to the court but yet on the 30 day the clerk of court did not
transmit the records of the case to the Court of Appeals, as a counsel of the
appellant, because you are in a hurry of your appeal, what is supposed to be the Sir Sabarre: Upon receipt of the 2 copies,what is mandated to the appellee?
appropriate remedy under our existing laws? Answer: He is required to submit appellee’s brief.

Answer Sir Sabarre : If the clerk of court would not act within 30 days by
Sir Sabarre: What do you call the one to be submitted in
transmitting the records of the appealed case to the Court of Appeals, the same
Certiorari,Prohibition,Mandamus,Quo Warranto and Habeas Corpus?
likewise with the first level to the Regional Trial Court,y ou can file a motion to the
Answer: Not appellee’s brief but it is called Memorandum. After which the case
court to compel the clerk of court now to transmit the records of the appealed case
may be submitted for decision. 40,41,42,43 and 45 are always taken together.
to the appellate court and is what is supposedly you will do para your appeal would
like be given attention by the clerk of court. In the Court of Appeals what is usually
done there when the record are already on appeal, there is one, will issue an order
for what? But the Court of Appeals can out rightly but what if it will not? What will
RULE 45
it issue to the parties of the case? A notice for what?
APPEAL BY CERTIORARI TO THE SUPREME COURT
Answer: Notices to submit appellant brief.
Sir Sabarre: What do you call the pleading in 45?
Q: How many days would the brief of the appellant be submitted? Answer: Petition on Review on Certiorari which is different from Petition in Review
Answer:45 days in the submission of appellant’s brief, but there is one very on Rule 65.
important aspect of the of appellant’s brief which should be submitted within 45
days from receipt of the notice, absence of which might be fatal as far as your Sir Sabarre: What is the difference/distinction?
appeal is concern.
Answer: 45- Mode of an appeal or Review but 65 is more on if the lower court
In fact I’ve been emphasizing as we go on our discussion, what is that? acted with grave of abuse of discretion amounting to lack or excess of jurisdiction
parang its an independent case itself, it is not a mode of review but an independent
Aside from you have to show proof that you served 2 copies of your of appellant’s case itself. Remember this distinction because I will not be repeating this when we
brief to the counsel of the appellee,its mandatory you have to submit to the appellate touch Rule 65.
court assignment of errors diba, unlike in criminal cases where I was emphasizing
that in appealed cases criminal cases, there’s no need to allege in your brief *The period in 45 is 15 days in 65 under Civil Procedure is 60 days.
assignment of errors, that once criminal cases is appealed, the entire case is opened
*In 45 Motion for Reconsideration is necessary while in 65 its necessary.
for review but not in civil cases because the appellate court will resort your appeal
based on the assignment of errors which you have alleged in your appellant’s brief -The rationale for the Motion for Reconsideration is to enable the court to
,if you don’t do that it could be fatal as far as your appeal is concern. correct its error but for me I will not reverse my own decision.

Sir Sabarre: What is the effect if no appellant’s brief is filed within 45 days upon
receipt of the notice from the Court of Appeals?
Answer: It is a ground for dismissal of the appeal
Sir Sabarre: Can there be a motion for extension of time to file the appellant’s
brief, s that allowed by the rules?
Answer: Yes on the grounds which the Court of Appeals may consider.
*45,you need not implead the court but in 65 the judge together with the parties
become the respondents.
*45-the decision will stay for the meantime but in 65 it will not unless the court
issues a Temporary Restraining Order or Writ of Preliminary Injunction because its
an independent case itself and that’s only the way to prevent the execution of
decision judgment and Certiorari is also a remedy to Interlocutory Orders of the
court and remember an Interlocutory Order has no finality unlike orders which are
final judgment which there is finality order,in Interlocutory Order there is not.
Sir Sabarre: Petition for Review on Rule 45 covers?
Answer: Sandiganbayan, Court of Appeals, Regional Trial Court in the exercise of
its original jurisdiction and the appeal is on pure question of law because if it is not
a pure question of law, go to the Court of Appeals via an ordinary appeal if it is in
the original jurisdiction and Petition on Review on Rule 42 if it is in the appellate
jurisdiction and also Court of Tax Appeals, this only center on pure question of law
but has exception. MEMORIZE the eight instances enumerated in the book of
Regalado.
Sir Sabarre: What is the difference between questions of law and questions of
fact?
Answer: In questions of fact there is a need for the presentation of factual evidence
while questions of law the only question is if the law or statute applicable in that
particular case.
Sir Sabarre: When will you file or period? Don’t forget the period ha its very
important you forget nalang everything but not the period.
Answer: 15 days upon receipt of the order or decision or notice denying your Motion
for Reconsideration if you file such but if the denial of you Motion for Reconsideration
is proforma it will not toll the running of the reglementary period to appeal except
in Criminal Cases but only applicable to Civil Cases and as I was telling you proforma
is the mere reiteration or repetitions from those that wer4e already considered by
the court when it rendered the decision. Don’t do that because the court might make
your motion proforma and this you could no longer file a Petition for Review because
it will not toll the running of the reglementary period.
Sir Sabarre: Can you extend that?
Answer: Yes by filing a motion to the Supreme Court within the reglementary period
of 15 days but you have to attach also the proof of payment, appeal fees as required
by the motion, it is done through a postal money order, its in the Supreme Court
not in the court that render the decision.
Sir Sabarre: In 45 how many days can you ask for your extension?
Answer: In 42,43, its 15 days and no further extension except for compelling
reasons,here its 30 days and you have to submit 18 copies of the petition.
 Requirements of These Rule
 Documents which are legible copies of the decision, original, duplicate
original or certified true copy certified by the clerk of court which render
the decision, the same with 42 and 43 with its contents.
 Proof of service to the respondents and also to the court copy furnished.
 Payment of docket fees
 Material data rule
 Certification of Non-Forum Shopping
This is required for non-compliance of this means dismissal of the appeal. Same
throughout as 42,43,45 and 65 as for the contents.
The court will issue an order on the elevation of the record on the court that
rendered the decision. But before that the court will order the respondent to file his
comment in 15 days same as 42 and 43 but wait for the order of the court requiring
to file a respondent’s comment not a Motion to Dismiss.
RULE 46
ORIGINAL CASES
Sir Sabarre: This rule applies to what?
Answer: Original action for Certiorari,Mandamus,,Prohibition and Quo Warranto.
Sir Sabarre: Remember before when we started with jurisdiction of each of the
courts tapos we had discussed before mga exclusive original jurisdiction of the Court
of Appeals, this is the one being referred to although you notice this applies to
Certiorari, Mandamus, Prohibition, there is however corresponding rules so that this
will be a little suppletory to this particular rules because Certiorari, Mandamus,
Prohibition is actually governed by Rule 65 and then ther is another rule for Quo
Warranto for example but be that as it may if you want to file anyone of this cases
before the Court of Appeals then the rules lay down in Rule 46 will actually apply
and there abcourse the parties are called petitioners and respondents now the more
important thing that you have to remember there is when will the court acquire
jurisdiction over the person of the respondent?
Answer: When the respondent receives summon of the order of the court indicating
the initial action.
Sir Sabarre: So when the Court of Appeals issues because the Court of Appeals
finds the petition is sufficient in form and substance, it therefore issues an order to
the respondent for the respondent for example to comment, that’s where the court
now acquire jurisdiction over the person of the respondent, you can’t also deny the
fact that since this are filed originally in the Court of Appeals, there are certain
factual issues which are important but in the process of entertaining this petition,
the factual issues have to be resolved by the Court of Appeals, what will you do?
Answer: The Court of Appeals may conduct hearing or it may delegate to a member
of a division in the Court of Appeals where the petition is raffled or to any appropriate
court, usually it’s the Regional Trial Court in cases when there are factual issues
have to be resolved as far as this petition are concern which are originally filed in
the Court of Appeals and also remember in 7 copies.
Rule 47 - Annulment Judgment
(My recording only starts at this point.)
Q: Now, in so far annulment of judgment from the RTC to the CA. Same likewise,
from the 1st level court to the RTC what are the only 2 grounds allowed by the
rules?
A: 1. Extrinsic or collateral fraud
2. Lack of jurisdiction over the subject matter or over the person of the
defendant.
Q: In so far as the extrinsic fraud is concerned, is there a requirement here?
A: Annulment of judgment is an extraordinary remedy. This will not be
entertained if this could have been raised in an appeal or motion for a new trial or
petition for relief of judgment. Pero if the party annulling the judgment was
not able to avail of this remedy through no fault of his own, (i.e. a fault
not attributable to him), then, definitely, according to the provision of the law,
he is allowed to file a petition for annulment of judgment. Otherwise, if the
fault is attributable to him, then he is not allowed file such a petition.
The same applies with 1st level court to RTC.
TAKE NOTE: Here review the concept of extrinsic fraud.
Q: Does it necessarily follow that the person who can file a petition for annulment
of judgment be a party to the case?
A: There is one decision cited in the book of Regalado that it is NOT ONLY a party
to the case which is allowed by the rules to file a petition for annulment of
judgment. Even third party can do so as long as he can prove to the court that
he was adversely affected as a consequence of that particular judgment subject
of his petition of annulment of judgment. The court says in one decision he is
allowed to file a petition for annulment of judgment.
Q: How many copies if you go to the CA?
A: 7 copies.
Q: Upon the submission of this petition to the CA in 7 copies tapos the CA finds that
there is merit in the petition, what is the next step which the CA has to do?
A: Because in Annulment of Judgment, whether it is RTC or CA, whether it is 1st
level courts to the RTC, it is treated as if it is an ordinary civil case. That’s why if the
CA or RTC will find out that there is merit in the petition filed before it, the rule is
very clear it will issue summons on the respondent because what I said this is
governed by the ordinary civil case.
Q: No problem when it is before the RTC, what about if this is before CA and there
is a need for reception evidence, what should be done according to the rules? In
this case, since CA is not a trier of facts, then what should be done?
A: It may delegate it to a member of the CA or it may delegate the reception
of evidence to a particular RTC.
Q: What is the effect if it turns out that after both parties have rested their respective
cases, there is merit in the petition. What is the effect of that as far as the judgment
subject matter of that particular case is concerned?
A: The original judgment is vacated. It is set aside without prejudice of refiling
of that particular case in the court proper jurisdiction.
Q: Period to file the petition for annulment of judgment?
A: Extrinsic fraud - within 4 years from its discovery thereof
Lack of jurisdiction - before it is barred by laches or estoppel.
TAKE NOTE: Definition of:
Laches - it such inexcusable delay in the assertion of rights or a failure to prosecute
a claim, within a reasonable and proper period, which warrants the presumption
that a party has waived his right.
Estoppel (or estoppel by laches) - is that failure to do something which should be
done or to claim or enforce a right at a proper time or a neglect to do something
which one should do or to seek or enforce a right at a proper time.
Q: Now you will notice that most often than not, since this is 4 years from discovery
or since this is before it is barred by laches, the judgment subject of that particular
petition is already executed by the court. What will happen if it turns out that the
petitioner won in the case? What particular rule and section would you quote?
A: The corresponding restitutions can be done by the court making reference to
Section 5 of Rule 39.
If this a property and the property is still in the possession of the winning
party, what should be the proper restitution?
The property must be returned, plus compensation to the former for the
deprivation and use of the property.
If restitution is not possible, the property will be sold at a public auction. The
compensation should be made as follows:
a. If the purchaser at the public auction was the judgment creditor, he must pay the
full value of the property at the time of its seizure, plus interest thereon;
b. If the purchaser at the public auction was a third person, the judgment creditor
must pay the judgment debtor the amount realized from the sale of the said property
at the sheriff’s sale, with interest thereon; and
c. If the judgment award was reduced on appeal, the judgment creditor must return
to the judgment debtor only the excess which he received over and above that to
which he is entitled under the final judgment with interest on such excess.
Rule 48 - Preliminary Conference
Q: This presupposes that this will happen in which court?
A: This is with the appellate court. So if this is CA, then that is CA. The CA may
likewise conduct preliminary conference. Parang the same with what we have been
discussing before where there can be a conduct of preliminary conference, and pre-
trial.
Q: What is the effect, during the preliminary conference everything is reduced into
writing, in so far as the proceedings is concerned?
A: This will govern the subsequent proceedings.
Q: Can this order after the preliminary conference, can this be modified by the court
even after the same has already been issued by the court?
A: Yes, the CA (or appellate court) can modify the order.
Q: What is the ground which will merit that little modification of that preliminary
conference order as mandated of one of the sections of Rule 48?
A: To prevent manifest injustice. That is the same in civil cases. Although in civil
cases, once we issue a pre-trial order we always place there a period for the parties
to file appropriate amendments upon receipt of the pre-trial order. We give them 10
days or 15 days. If there are certain amendments, you have to file the amendments
to the pre-trial within the period given to you. Otherwise, if you do not do so then
you are forever barred from doing so. Be that as it may, just same of the preliminary
conference order of the appellate court, we can still somewhat modify the order if
to do so would actually prevent manifest injustice. Because we always anchor our
order granting the same in the interest of substantial justice.
 Rule 49 - Oral argument
Q: Can the CA schedule a case for Oral arguments?
A: Yes. Although, it is rare. If you can recall, in petitions what you are told to do is
to submit your respective appellant’s brief or memorandum, in other cases. But there
are instances when the CA may set your case for oral arguments. This is definitely
allowed there. The same with the Supreme Court. It can schedule a case for such.
Q: If you file motions before the CA and/or before the SC, does it have to comply
with our rules on motions before the RTC and 1st level courts where there has to
be a notice of hearing. Otherwise, if your motion does not contain a notice of
hearing, your motion is considered as a mere scrap of piece of paper. Failure of the
party to include a notice of hearing, is this fatal to your motion filed before the CA
and SC?
A: No. Motions which are filed before the CA and SC need not be with
notice of hearing. But even if there is a notice of hearing the said courts will simply
disregard the same. Anyway, if the said courts want that a motion be scheduled for
hearing, it will just notify the parties by issuing an order that the motion is to be set
for hearing. So this is one major distinction between hearings in the 1st level court,
in the RTC where it has to comply with the rule that there must be a notice of
hearing in your motion, otherwise, it will be considered as a mere scrap of paper.
That requirement is not needed in cases of motions file before the CA and SC.
Rule 50 - Dismissal of Appeal
MEMORIZE: Grounds for dismissal of appeal (Section 1) - An appeal may be
dismissed by the Court of Appeals, on its own motion or on that of the appellee, on
the following grounds:
(a) Failure of the record on appeal to show on its face that the appeal was taken
within the period fixed by these Rules;
(b) Failure to file the notice of appeal or the record on appeal within the period
prescribed by these Rules;
(c) Failure of the appellant to pay the docket and the other lawful fees as provided
in section 5 of Rule 40 and section 4 of Rule 41;
(d) Unauthorized alterations, omissions or additions in the approved record on
appeal as provided in section of Rule 44;
(e) Failure of the appellant to serve and file the required number of copies of his
brief or memorandum within the time provided by these Rules;
(f) Absence of specific assignment of errors in the appellant’s brief, or of page
references to the record as required in section13, paragraphs (1), (c), (d) and (f) of
Rule 44;
(g) Failure of the appellant to take the necessary steps for the correction or
completion of the record within the time limited by the court in its order;
(h) Failure of the appellant to appear at the preliminary conference or to compy with
orders, circulars, or directives of the court without justifiable cause; and
(i) The fact that the order or judgment appealed from is not appealable.
Q: Can one withdraw his appeal?
A: It depends. An appeal may be withdrawn as a matter of right at any time before
the filing of the appellee’s brief. Thereafter, the withdrawal may be allowed in the
discretion of the court.
CASES:
CASE #(1) If there are several defendants or plaintiffs, one or two did not appeal
but the others appealed. If the judgment favorable it will not affect those who did
not appeal except if however, in criminal cases. even if the other accused did not
appeal but the decision of the appellate court is favorable, i.e. acquitted that
particular decision of acquittal does not only affect those that appealed but likewise
those who did not appeal.
In a civil case the result of the decision of the appellate which is favorable also
affects the those who did not appeal. (see Republic vs Institute for Social Concern,
et. al)
The reason for such ruling is: The defenses are so interwoven with each. And
that is why it is that since that these are interwoven with each other that the decision
was applied not only to those who appealed but likewise to those who did not
appeal.
CASE #(2) This is related to our rule that period of appeals are strictly construed.
What is the reason? This means that we have to follow the 15-day or 30-day period
to appeal. Failure will cause for the appeal to be dismissed outright. (see GSIS vs
Jines).
The SC held that the period for appeal shall not be extended because it is not only
mandatory but also it is jurisdictional.
Rule 51 - Judgment
Rule 52 - Motion for Reconsideration
Rule 53 - New Trial
(Not discussed Rule 54 - Internal Business and 55 - Publication of
Judgments and Final Resolutions)
Q: When is a case deemed submitted for decision? How do you qualify that?
A: Determine first whether this is based on ordinary appeal or whether this is based
on original actions and petitions for review filed. After you determine this particular
qualifications, you further qualify whether there was hearing or no hearing on the
merits of the case. Therefore:
I. Ordinary appeals
a. No hearing => upon the filing of the last pleading, brief, or memorandum required
by the Rules or by the court itself, or the expiration of the period for its filing.
b. Hearing is held => upon its termination or upon the filing of the last pleading or
memorandum as may be required or permitted to be filed by the court, or the
expiration of the period for its filing.
II. Original actions and petitions for review
a. No comment filed => upon the expiration of the period
b. No hearing => upon the filing of the last pleading required or permitted to be
filed by the court, or the expiration of the period for its filing.
c. Hearing is held => upon its termination or upon the filing of the last pleading or
memorandum as may be required or permitted to be filed by the court, or the
expiration of the period for its filing.
Q: How will members of the CA resolve a particular case submitted for decision?
Take note: You’ve already have taken up this already, because there is a portion in
Article VIII of 1987 Constitution, as to when courts will actually decide cases. If you
can recall SC 24 months, other collegiate courts 18 months, and for other courts 3
months only.
A: Unanimous vote is needed in order to reach a decision if this is heard in division.
Q: If the 3 votes could not be reached by the 3 justices, what will happen?
A: 1. The clerk shall enter the votes of the dissenting Justice in the record.
2. Then, the Chairman of the division shall refer the case, together with the minutes
of the deliberation, to the Presiding Justice who shall designate two Justices chosen
by raffle to sit temporarily with them, forming a special division of 5 Justices.
3. The concurrence of a majority of such division shall be required for the
pronouncement of a judgment or final resolution.
Q: I told you time and again, particularly when we were talking about the submission
of the appellant’s brief. That in the appellant’s brief, unlike in criminal cases, the
appellant MUST ALWAYS raise or allege assignment of errors because in its
resolution the CA will only center on your assignment of errors. In fact, in Rule 50
dismissal of appeals, failure to allege assignment of errors in the appellant’s brief is
one of the grounds for dismissing the case.
Are there exceptions that even when these errors are not included or raised in the
assignment of errors, yet these can still be treated by the appellate court when it
renders its decision?
A: There are 3 exceptions:
1. Errors affecting the validity of jurisdiction of the court over the subject matter;
2. Errors affecting the validity of the judgment appealed from or the proceedings
therein; and
3. Errors which are closely related to or dependent on the assigned error and these
were properly argued in the appellant’s brief.
Meaning to say that these 3 exceptions even if these were not raised as an error in
the appellant’s brief the court resolving the appeal can entertain these as far as
when it renders its decision.
Take note: Clerical errors are perfect examples of what we call harmless errors. It
will not affect in any way the decision of the appellate court on appeal.
file the motion for execution pending appeal before the CA. And the CA has to issue
an order transmitting the order to the trial court. But if the records is still with the
trial court, then the latter can still treat the execution. The latter is one of the residual
powers of the trial courts.
Q: What is the effect if the Motion for Reconsideration is granted?
A: The decision will be MODIFIED, unlike the effect of a Motion for New Trial.
Q: When can you file a Motion for New Trial?

Q: Once the CA renders a decision, the losing party can avail of the following A: It can be filed any time after perfection of an appeal from the RTC but before CA
remedies. These are? File a - loses jurisdiction over the case.

1. Motion for Reconsideration; or Q: What is the only ground for Motion for a New Trial of a decision of a CA?
2. Motion for New trial; or
3. Petition for Review on Certiorari under Rule 45 (or appeal by certiorari) on pure A: Newly discovered evidence which upon reasonable diligence it was not
question/s of law. available and if presented it would alter the decision.

The Motion for Reconsideration, this is in reference to a final judgment or resolution, Q: Before the CA, can you file a second a Motion for New Trial?
must be filed within 15 days from the receipt of the notice.
A: No, because before the CA there is only one ground for Motion for New Trial and
Q: Can one file a second Motion for Reconsideration? that is newly discovered evidence.

A: It depends. If the Motion for Reconsideration is in reference to a final judgment
or resolution, then second Motion of Reconsideration is NOT allowed. This is
provided for by the rules. However, if this is in reference to an interlocutory order,
there might be certain consideration taken into account allowing a party to file a
second Motion for Reconsideration.
Q: What is the effect if one filed a Motion for Reconsideration in so far as the decision
is concerned?
Q: What will happen when a Motion for New Trial is filed and what is the effect
thereof?
A: When a Motion for New Trial is filed, the decision will be vacated and the CA
will try the case. The CA will also consider the evidences which were considered
when it rendered the decision prior to the filing of the Motion for New Trial.

A: The decision will be STAYED not unless the law or order provides otherwise.
So meaning to say if the decision is stayed it cannot yet be the subject of an
execution.

TAKA NOTE: Execution of judgment of CA, it can only be executed one a judgment
is final and executory. In cases executions pending appeal, the trial courts has
already lost jurisdiction and forwarded the records of the case to the CA, you can
 RULE 56 An appeal to the SC may be taken only by a petition for review on certiorari from
PROCEDURE IN THE SUPREME COURT the CA (Rule 45), EXCEPT in criminal cases where the penalty imposed is death
Sec. 47. Effect of foreign judgement and final orders. (automatic review), reclusion perpetua or life imprisonment (ordinary appeal).

A. ORIGINAL CASES Sec. 4. Procedure.

*Sec. 1. Original cases cognizable.
(1) petitions for certiorari
(2) prohibition
(3) mandamus
(4) quo warranto
(5) habeas corpus
(6) disciplinary proceedings against members of the judiciary and attorneys
(7) cases affecting ambassadors, other public ministers and consuls
Sec. 2. Rules applicable.
The procedure in original cases for certiorari, prohibition, mandamus, quo warranto
and habeas corpus shall be in accordance with the applicable provisions of the
Constitution, laws, and Rules 46 (original actions in the CA), 48 (preliminary
conference), 49 (oral argument), 51 (judgment), 52 (MR) and this Rule, subject to
the following:
(a) all references to the CA shall be understood to also apply to the SC;
(b) the portions dealing strictly with and specifically intended for appealed cases in
the CA shall not be applicable;
(c) *18 clearly legible copies of the petition shall be filed, together with proof of
service on all adverse parties.
The proceedings for disciplinary action against members of the judiciary shall be
governed by the laws and Rules prescribed therefor, and those against attorneys by
Rule 139-B, as amended.
*Rule 53 (motions for new trial) is not applicable to and cannot be availed of in the
SC in civil cases therein because only questions of fact are involved in such motions
and the SC is not a trier of facts. Besides, the findings of fact of the CA are generally
binding on the SC.
B. APPEALED CASES
Sec. 3. Modes of appeal.
The appeal shall be governed by and disposed of in accordance with the applicable
provisions of the Constitution, laws, Rules 45, 48, sections 1, 2, and 5 to 11 of Rule
51, 52 and this Rule.
*Sec. 5. Grounds for dismissal of appeal.
The appeal may be dismissed motu proprio or on motion of the respondent on the
following grounds (NaCPRREL):
(a) Failure to take the appeal within the Reglementary period;
(b) Lack of merit in the petition;
(c) Failure to Pay the requisite docket fee and other lawful fees or to make a deposit
for costs;
(d) Failure to comply with the Requirements regarding proof of service and contents
of and the documents which should accompany the petitions;
(e) Failure to comply with any Circular, directive or order of the SC without
justifiable cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is Not appealable to the SC.
*Sec. 6. Disposition of improper appeal.
An appeal taken to the SC by notice of appeal shall be dismissed.
Exception: in criminal cases where penalty imposed is death, reclusion perpetua or
life imprisonment
An appeal by certiorari taken to the SC from the RTC submitting issues of fact may
be referred to the CA, although SC may also dismiss the appeal. The determination
of the SC on whether or not issues of fact are involved shall be final.
Sec. 7. Procedure if opinion is equally divided.
Where the court en banc is equally divided in opinion or the necessary majority
cannot be had, the case shall again be deliberated on, and if after such deliberation
no decision is reached, the original action commenced in the court shall be
dismissed.
In appealed cases, the judgment or order appealed from shall stand affirmed.
On all incidental matters, the petition or motion shall be denied.
The conclusions of the SC in any case submitted to it for decision en banc or in
divisions shall be reached in consultation before the case is assigned to a Member
for the writing of the opinion of the Court. A certification to this effect signed by
the Chief Justice shall be issued and a copy thereof attached to the record of the
case and served upon the parties.
The SC is clothed with ample authority to review matters, even if they are not
assigned as errors on appeal, if it finds that their consideration is necessary in
arriving at a just decision of the case. It may consider an unassigned error closely
related to an error properly assigned or upon which the determination of the
question properly assigned is dependent. Furthermore, where the Court is in a
position to resolve the dispute based on the records before it, it may resolve the
action on the merits in the public interest and for the expeditious
administration of justice.
In People v Jabinal, the SC emphasized that its interpretation upon a law constitutes,
in a way, a part of the law as of the day that law was originally passed,
since its construction merely establishes the contemporaneous legislative intent
which that law intends to effectuate.
It also clarified that when its doctrine is subsequently overruled and a different view
is adopted, the new doctrine should be applied prospectively and should not apply
to parties who had relied on the old doctrine and acted on the faith thereof.
PROVISIONAL REMEDIES
1. Preliminary Attachment
2. Preliminary Injunction
3. Replevin
4. Receivership
5. Support Pendente Lite
NOTE! Before contempt was in this category but according to 1997 rules of civil
procedure this is now a special civil action. So apparently, we have 5 provisional
remedies.
NOTE! There are certain instances, that this enumaration is not actually exclusive,
because, my dear students, there are instances where the court may grant certain
processes while the case is pending and those processes can still be considered as
provisional remedies like for example in a petition for custody of minors. And while
the case is pending the court may grant a parent a visitorial right or temporary
custody of the child while the case for custody is pending. Accorrding to one decision
of the supreme court that particular visitorial right or temporary custody given to a
parent can be similar to what we call a provisional remedy.
The following are purposes of these remedies:
1. To preserve or protect the rights or interests of litigants while the main
case is pending.
2. To secure the judgment.
3. To preserve the status quo.
4. To preserve the subject matter of the action.
5.
RULE 57
PRELIMINARY ATTACHMENT
Q: When can this be availed of? (first question to determine the distinctions)
A: This can be resorted to at the commencement of the action. This is usually
incorporated in the complaint which means you have already prayed for the issuance
of a preliminary attachment. In other words, it is already part and parcel of the
complaint. However it can also be resorted to before entry after judgment.
Q: In this instance, if this is after judgment but before entry, how do you usually do
this if you want to avail of this particular provisional remedy?
A: By mere motion. Meaning to say, if unfortunately you were not able to incorporate
in your complaint that you are praying for a preliminary attachment, what you do is
you can do that in any stage of the proceeding.
6 grounds upon which attachment may issue:
 1. In an action for the recovery of a specified amount of money or damages,
other than moral and exemplary, on a cause of action arising from law,
contract, quasi-contract, delict or quasi-delict against a party who is
about to depart from the Philippines with intent to defraud his creditors.
2. In an action for money or property embezzled or fraudulently misapplied
or converted to his own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker, agent, or clerk, in the course
of his employment as such, or by any other person in a fiduciary capacity,
or for a willful violation of duty.
3. In an action to recover the possession of property unjustly or fraudulently
taken, detained or converted, when the property, or any part thereof, has
been concealed, removed or disposed of to prevent its being found or
taken by the applicant or an authorized person.
4. In an action against a party who has been guilty of fraud in contracting
the debt or incurring the obligation upon which the action is brought, or
in the performance thereof.
5. In an action against a party who has removed or disposed of his property,
or is about to do so, with intent to defraud his creditors.
6. In an action against a party who does not reside in the Philippines, or on
whom summons may be served by publications. REASON FOR THIS
PARTICULAR GROUND: This is allowed in order for the court to acquire
jurisdiction over the person of the defendant. This is the instance, when
in an action in rem and you cannot serve summons to the defendant
because he is actually residing out of the country and you resort to what
you call summons by publication. That is not actually for purposes of
acquiring jurisdiction per se but more so for complying the due process
requirement.
Q: When is it in rem and when in personam?
A: Proceeding in attachment is in rem where the defendant does not appear, and in
personam where appears in the action.
Q: In the context here, procedurally speaking, how is this done when one resort to
a preliminary attachment?
A: Usually it does not require notice and hearing, because it can be issued by the
court ex parte.
Q: And this will happen when?
A: When it is incorporated as part of the allegations in the complaint. As long as you
have complied with the requirements of the rules, the court actually can issue
already the writ of preliminary attachment.
First stage: The court issues an order granting your prayer for the issuance of writ
of preliminary attachment.
Second stage: After the order is issued, the court will now issue the writ itself.
NOTE! And the while the law says, it did not require notice and hearing, because
unlike other provisional remedies, it can be issued ex parte however it cannot be
implemented without service of summons. Meaning to say, when the court issues a
writ of preliminary attachment, it should be part of summons already upon the
person of the defendant. Together with the writ of preliminary attachment,
complaint, affidavit and bond as required by the rules. As far as service is concerned,
it is a diffirent story. But as far a granting the writ is concerned, it can be granted
by the court without notice and hearing.
Q: What are the requirements for the issuance of writ of preliminary attachment?
A: There are two. The affidavit and bond.
Q: What is one very improtant content of your affidavit? (must comply with all those
requisites under sec 3 of the rule)
A: It must allege that there is no other security.
There is an example case: If the property was also subject of a real estate mortgage
executed between the creditor and the debtor, and then the creditor because of
non-payment instead of foreclosing the real estate mortgage resorted to filing a
collection of sum of money for the loan, and in the complaint he also prayed for the
issuance of writ of preliminary attachment. The question is, can that be granted?
A: No. Because there is already a sufficient security precisely I put emphasis on one
of the requirements which must be contained in the affidavit in support of the
issuance of the writ that there is no other security. And that particular security is
the real estate mortgage executed by the debtor in favor of the creditor.
Q: Aside from the affidavit which should contain all those enumaration, there must
also be a bond. How much is the bond that is required by the rules here?
A: It is based on the amount fixed by the court or as much as the value of the claim
in that particular complaint being resorted to by the plaintiff. Although it is
discretionary upon the court, the court is still guided depending on the value of the
claim by the plaintiff or other parties alleged therein.
Take note: This is avalaible not only to the plaintiff but to all of the parties as well.
Q: The writ is about to be served by the sheriff as mandated by the rules, can the
writ cover all properties?
A: No. That is now the role of the sheriff to look for available properties. The reason
for this, is because there are properties that must be exempted from execution such
as those of the family home. Because if the property is exempted from execution, it
can't also be covered by writ of preliminary attachment.
Q: What about if the sheriff resorts to money in the bank? How do you call this?
A: This is what we call, garnishment. Garnishment usually involve money and credits
in the bank. It is a form of preliminary attachment.
Q: To prevent the attachment, what should the defendant do? (Let us say it is the
plaintiff who was granted the writ of preliminary attachment)
A: He may file a remedy and this is to put up a counter-bond. In an amount the
same to that of the bond which was posted by the plaintiff for the issuance of the
writ of preliminary attachment.
Q: If the bond for the plaintiff is to answer for whatever damages which the party
might lose later, the counter-bond is for what purpose?
A: To help prevent that attachment by the defendant.
Q: What other remedies can be resorted to?
A: The defendant can file a motion to set aside or discharge the writ.
Grounds which can be resorted to by the other party if in case a writ if preliminary
attached was issued by the court: (file a motion to discharge based on these
grounds)
1. Debtor has posted a counter-bond or has made the requisit cash deposit.
2. Attachment was improperly or irrregularly issued as where there is no
ground for attachment, or affidavit and/or bond filed therefore are
defective or insufficient.
3. Judgment is rendered against the attaching creditor.
4. Attachment is excessive, but the discharge shall be limited to the excess.
5. Property attached is exempt from the execution.
Q: When the writ was being implemented by the Sheriff and this is claim by a third
person, what will happen?
A: The property upon which the writ of preliminary attachment is supposed to be
issued is claimed by a third person, this is another instance which entails the
principle of Terceria. In this case, the third person who claimed it should execute an
affidavit and prove his title to the property and give it to the sheriff.
Q: If a third person executed an affidavit to prove his title to the property subject
to the writ, is the sheriff bound to continue with the implementation of the writ or
he will not continue?
A: He will not continue unless the attaching party or his agent put up a bond
approved by the court. If it was procedurally done the sheriff will no longer liable.
This is to indemnify the third claimnant in an amount not less than the value of the
property levied upon. In case of this agreement the court will decide for the amount
thererof.
NOTE! And under our rules, the bond is not required if this is in favor of the Republic
of the Philippines. However there is a qualification, if you want to run after that bond
which was posted by the attaching party or his agent, you are only given a period
of 120 days from the filing of that bond. (section 14 of this rule)
NOTE! This is the same with rule 39 when we talk about execution and the property
subject of the execution is being claimed by a third person. VERY IMPT CONCEPT
OF TERCERIA!
Q: Can there be sale of a property subject of the attachment?
A: Yes. When the property subject of the writ is actually perishable. By filing a
motion and if it is granted the sale can be done in public auction in a manner which
is directed by the court. The proceeds thereof will deposited in the court subject to
the outcome of the main action.
NOTE! If the judgment is final and executory, the remedy is not for the issuance of
the writ of preliminary attachment, your remedy is now to file a motion for a writ of
execution instead. If there was already an entry of jugment, it presupposes that the
decision is final and executory.
Q: If it turned out that the attachment was excessive and improper, can the party
against whom that writ is issued do or claim something there?
A: Yes. He can claim for damages. This will cover an instance when after jugdment
it turned out to be excessive and improper, and creditor is not entitled to the
property he claimed for.
Q: How can this be done? And when should you do that?
A: It should be filed before the appeal is perfected and the judgment becomes
executory in the court which the writ is issued. Setting forth his right thereto but
always with notice to the party in whose favor the writ was actually granted.
NOTE! The rule actually does not allow the party to file an independent civil action
because it should be in the same court where the writ was issued or the judgment
was rendered, however there are two exceptions:
1. Where the principal case was dismissed for lack of jurisdiction by the trial
court without giving an opportunity to the party whose property was
attached to apply for and prove his claim.
2. Where the damages by reason of the attachment was sustained by a third
person who was not a party to the action wherein such writ was issued.
RULE 58
PRELIMINARY INJUNCTION
Judge Sabarre: In terms of the implementation of the writ of preliminary
attachment, it must be served contemporaneously with the summons, affidavit and
the bond which there are certain exceptions which were not able to put emphasis
like if it is an action in rem, or quasi in rem, or if it is an action against a Flipino who
is residing in the Philippines but temporarily outside the Philippines will if inspite
diligent effort, summons will not be served even substituted service. These are
exceptions. I want to emphasize these because these are also mentioned in the
next rule on provisional remedy on preliminary injunction.
I told you likewise last night that in terms of issuance of a writ of preliminary
attachment is in rem or quasi in rem depends on whether or not the defendant
appears. If the defendant does not appear, it is considered in rem, however if the
defendant appears, that action will be considered in personam.
Judge Sabarre: Let us now go to Rule 58, Preliminary Injunction. By the way, the
other term for preliminary injunction is temporary restraining order. There are some
instances that instead of issuance of a writ of preliminary injunction, we use the
term temporary restraining order. And our rules:
Ans: Preliminary injunction is defined to be a writ or process ordering a person or
an agency to refrain from doing an act but it may also compel the performance of
an act in which case, it becomes a Preliminary Mandatory Injunction.
Judge Sabarre: In terms of cases or decisions, the law is very strict in terms of
issuing a writ of a preliminary mandatory injunction unlike that of issuances of a
preliminary injunction. We can notice that the court is very strict in issuing a
preliminary mandatory injunction not unless the following elements is proven in the
court in support of the prayer for the issuance of a writ on preliminary mandatory
injunction.
Q: What are these following requisites that must be proven before the court can
definitely issue a writ of preliminary mandatory injunction?
Ans: MEMORIZE ! Being an extreme remedy, more often than not, we don’t grant
it! It can only be granted if the following elements are present: (1) If the invasion
of the right is material and substantial (2) It must therefore be stated that the right
of the complainant as applicant is clear and unmistakable (3) If there is a paramount
necessity to issue such writ to prevent serious injury (4) It must not create a new
relation between the parties which was interrupted by one of the parties in the
issuance of such writ TAKE NOTE!
Mervel Homeowners Association Incorporated vs. Teles
Judge Sabarre: Let us say in the case of recovery of possession, and the court
orders the issuance of a writ of preliminary mandatory injunction which will now
allow the defendant to enter into possession of the subject of the case, that should
not be done! Definitely, that will change the relation between the parties. There is
really the exercise of caution on the part of the court being an extreme ready. In
fact in reality, courts rarely grant it unlike an ordinary writ of preliminary injunction.
Q: In terms of effectivity, injunction may be preliminary and final. Where lies the
difference?
Ans: An injunction is preliminary when it is granted at any stage of the proceeding
of the action but prior to judgment or final order while injunction is final when after
the trial of the case, the applicant is showed to be entitled to have the act or acts
complained of permanently enjoined, the court shall grant a final injunction
perpetually restraining the party or person enjoined from the commission or
continuance of the act or acts or confirming the preliminary mandatory injunction.
Remember however that a preliminary injunction may be an action in
itself or it can also be an incident only to the main action. Example! You can
file case for an injunction as a main action with a prayer for the issuance of a writ
of a preliminary mandatory injunction. But it can also be an ancillary to an action
like recovery of damages and possession with a prayer for the issuance of a writ of
a preliminary injunction. So now it can be an action in itself. Please take note my
dear students of that!
Student: In terms of preliminary injunction, it can only be issued if the acts are
being committed or are about to be committed and that this does not lie against
those acts already committed. It will be futile on the part of the court to issue a writ
of preliminary injunction if such acts were already committed. This is indeed a logical
consequence because if injunction is to prevent a person from doing an act, if the
act is already committed, there is nothing to be prevent of. It is supposed to be in
contemplation of an act being committed or about to be committed. However by
way of exception, such writ may still be issued even if it has already been committed
but such act is continuing in nature and were in derogation of plaintiff’s rights at the
outset, preliminary mandatory injunction may be availed of to restore the parties to
the status quo.
Like in the case of forcible entry. This falls as an exception to the second principle
that preliminary injunction can only be issued to acts being committed or about to
be committed. Refer to the case of Jun Jun Binay vs. SC.
Judge Sabarre: There are certain qualifications particularly if the writ of
preliminary injunction is issued by the RTC. However this can also be filed in MTC
because jurisdiction covers cases on forcible entry and unlawful detainer case.
Q: What are the limitations in the issuance of the writ of preliminary injunction by
the RTC?
Ans: (1) It cannot restrain the proceedings involving unfair labor practices under
the Labor Code
(2) It cannot restrain the acts of another co-equal branch or court. If you really
wanted to, you can go to the CA or SC, because it is not already within RTC’s
jurisdiction.
(3) It cannot likewise restrain the act of the government with respect to
national infrastructures enshrined in RA 8975 because only the SC can do it. Also it
cannot restrain those government-owned corporations in its infrastructure projects.
(4) It cannot also issue a writ of preliminary injunction to prevent the
extrajudicial foreclosure of mortgage unless there is already full payment of the
property subject of mortgage .
Di ba? In attachment, it can be filed at the commencement of the action or any time
after judgment but before its entry. You can notice in preliminary injunction only
said “at any time”, there is no specific limitation or period but preliminary injunction
can that has given unlike attachment. Because in the latter, if there is already entry
of judgment, the remedy is to file a motion of execution anymore. However even if
the law provided that preliminary injunction can be filed at any time of the
proceeding, it can likewise be incorporated in the complaint the same as a writ of
attachment. If you failed to incorporate it to the complaint, then you may file a
motion.
Q: In terms of the need of notice and hearing, is it synonymous with prelim
attachment?
Ans: NO! We said that in prelim attachment, it can be issued ex parte, without
notice and hearing but in prelim injunction, the court cannot issue such without
notice and hearing. In other words, it cannot be done ex parte. This is one major
difference. But in terms of the requisites for the issuance of the writ, the same is
observed in prelim attachment. The two requisites are (1) the affidavit to
justify injunction/attachment and (2) the bond. In fact if it is already part of
your complaint, the grounds shall be set forth therein as contemplated under Section
3 of Rule 58. Memorize this section for the 3 requisites are really important for in
reality, it is just stated in your complaint. In terms of the amount of the bond and
damages, both writs of attachment and injunction is determined by the Court.
Q: What will happen if prayer for the issuance of TRO is incorporated in the
complaint, does it mean that the court will automatically issue the TRO or
preliminary injunction?
Judge Sabarre: Remember that injunction cannot be issued ex parte! Now the
court will now take charge. In a multi sala court, the judge shall now raffle the case
to which branch it will go unlike a single sala court. Afterwards, a notice shall be
issued to the defendant and shall likewise be issued contemporaneously with the
summons together with the affidavit and the bond. Okay my dear students? Not
unless if the contemporaneous service of summons cannot be made because it falls
on the exceptions mentioned a while ago.
Then after the receipt of summons, the court will now conduct a summary hearing
within 24 hours for the purpose of whether or not to grant the writ of preliminary
injunction or TRO.
Q: Can an executive judge issue a TRO before summons are served without notice
and hearing as an exception to the rule? Can an executive judge upon which the
complaint is filed before it is being raffled or me as a judge of a singe sala cour?
Ans: YES! There are two requisites that you have to memorize!
(1) When there is an extreme urgency
(2) when it can cause an irreparable damage
*This can be issued ex parte but only within 72 hours and within 72 hours if there
is a need to extend it, the hearing must be conducted. But this will only happen ha
because as a general rule, we cannot issue a writ of prelim injunction without notice
and hearing and by way of exception to the rule, if the court finds out that there is
an extreme urgency or it might cause an irreparable injury, then the court can issue
a writ of preliminary injunction good only for 72 hours. And within 72 hours, a
summary hearing must be conducted whether or not to extend the life of a TRO
with the RTC to 20 days only. If no hearing is made within 72 hours, the effect will
be the TRO is deemed vacated. That is the only exception to the rule that we cannot
issue a prelim injunction without notice and hearing.
Before the court of appeals, the life of a TRO is only good for 60 days.
While in SC, the TRO extends until after it is resolved. There is no life
intended for a TRO. The best talaga ang Supreme Court. The primary purpose of
the issuance of TRO is to preserve the status quo of the parties.
Q: What is status quo?
Ans: Status quo is the last actual, peaceable, uncontested status which precedes
the pending controversy. Memorize this! Para you can pass my brain damaging
exam! (In fact kami as judges, when there is a petition of certiorari under rule 65
questioning our order, we proceed to hearing of the case unless the higher court
orders a preliminary injunction. Otherwise we will be administratively charged. )
Q: What are the grounds of dissolution of injunction or grounds that will warrant
the refusal of the judge to grant the injunction?
Ans: (1) If the complaint is irregular, excessive and insufficient
(2) When the party against whom injunction is filed is permitted to post a
counter-bond it appearing that he would sustain great damages while the plaintiff
can be amply compensated
(3) On the other grounds as where the bond posted by the applicant turn out
to be defective and insufficient
REMEMBER! *The filing of a counter bond does not necessarily warrant dissolution
of the injunction as the court has to assess the probable relative damages. Unlike
attachment, when the debtor post a counter bond in an amount equal to the bond
posted by the applicant in attachment, automatic na yan that attachment will not
be served. While in injunction it does not automatically mean that injunction is
dissolved because at the end of the day, it is still discretionary to the court.
Q: We discussed section 20 of Rule 57 di ba? Is there a bearing on the judgment?
Ans: In terms for claims of damages, a party can claim for damages by simply filing
a petition in the same case where the writ is issued before the judgment becomes
executory or before the appeal is perfected within 120 days from the time of the
filing of that particular bond as provided under Section 20 Rule 57. You are not
allowed a file a separate action for damages. This procedure is likewise observed in
the claims for damages in preliminary injunction under Section 8 of Rule 58.
 RULE 59
RECEIVERSHIP
This can be filed even after judgment. It can also be an incident to a main action.
If you are to compare attachment to injunction this can be applied to before final
judgment
Receivership vs. attachment vs. injunction
* Receiver can be applied for even after judgement. While in attachment and
injunction which can only be resorted to before final judgment. In receivership this
can be resorted to even if there is already final judgment.
Q: Purpose of receivership as a provisional remedy:
Ans: To protect and preserve the rights of the parties during the pendency of the
main of the action, during pendency of an appeal or it will be used as an aid in the
execution of a judgment when the writ execution has been returned unsatisfied.
Q: And under our rules, receivership is available in any these instances. What have
you noticed common characteristic of the four instances enumerated in section 1 of
Rule 59, which will warrant issuance of receivership as a provisional remedy.
Ans: The property might be in danger of being lost, or materially injured. In which
case you can resort to filing a petition for receivership or it can be an incident to a
main action.
(MEMORIZE THESE 4 INSTANCES):
Section 1. Appointment of receiver. - XXX
(a) When it appears from the verified application, and such other proof as the court
may require, that the party applying for the appointment of a receiver has an interest
in the property or fund which is the subject of the action or proceeding, and that
such property or fund is in danger of being lost, removed, or materially injured
unless a receiver be appointed to administer and preserve it;
b) When it appears in an action by the mortgagee for foreclosure of a mortgage that
the property is in danger if being 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 duing 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 to carry the judgment into effect;
(d) Whenever in other cases it appears that the appointment of a receiver is the
most convenient and feasible means of preserving, administering, or disposing of
the property in litigation.
XXX.)
Q: Examples when one can resort to receivership:
Ans: 1. Complaint is a collection of sum of money and you prayed for the provisional
remedy of receivership. Would this be proper?
ANSWER: There is one decision of the Supreme Court where the SC said that
receivership is NOT available in a mere a suit for collection of sum of money. It is
available when the property or fund that is the subject matter of the litigation is in
danger of being lost, removed, or materially injured.
2. What about if this is a case for foreclosure of mortgage? Would receivership be
proper?
ANSWER: Yes, there is also one decision. This is a perfect of example in a case for
judicial foreclosure of mortgage tapos there is a probably that the property subject
of the foreclosure is in danger of being wasted, or dissipated or in danger of being
materially injured so that there is a danger that the value of this particular property
might not be able to cover the mortgage loan. The SC in the particular case in Phil
Trust Co. vs. Sta Maria 53 Phil 463 allowed the judgment obligor to avail of the
provisional remedy of receivership while the foreclosure mortgage is pending
hearing. So far this is the only one I found out to be a good example.
TAKE NOTE: But NOT in a mere collection of sum of money.
But it does not necessary mean that this is just limited to an action for foreclosure
of mortgage. It can apply to all actions as long as it involves a property which might
be a security for whatever judgment that might be rendered by the court. And you
feel that the property is in danger of being lost, dissipated, materially injured, the
best that you can do there is file a petition or make it as an incident to your main
action so that at least the property subject of the action may be preserved, which is
one of the purposes of the provisional remedy of receivership.
Procedure for the appointment of a receiver:
1. The party applying for the appointment of a receiver must file a verified
application.
 Receivership may be granted by the court of origin or where the case is
pending, Court of Appeals, by the Supreme Court, or any of its member
thereof.
 Can be filed through a motion, in case this is an incident to a main action,
but must also be verified in accord with the requirements of this rule.
2. The applicant must have an interest in the property or funds subject of the
action.
3. The applicant must prove to the court that the property or fund is in danger
of being lost, dissipated, wasted, or materially injured.
4. It is ALWAYS must be with notice and the application must ALWAYS be set
for hearing.
5. Before the appointment as a receiver, he must ALWAYS post a bond in favor
of the adverse, otherwise one will not be appointed.
Q: How much is the bond? It is fixed by the court. But that is always in favor of the
adverse party.
If you look at Section 2, there actually 2 bonds which are mentioned. One is the
applicant’s bond, and the second is the receiver’s bond. Unlike our previous 2
provisional remedies, here are actually 2 bonds because the applicant must also
always post a bond with his application. And when the court issues an order for the
appointment of a receiver, the receiver must likewise post a bond. So in all in there
are 2 bonds here.
6. Before entering his duties, the appointed receiver must ALWAYS take oath that
he will perform his duties faithfully pursuant to Section 4 of Rule 59 of the 1997
Rules of Civil Procedure.
Q: What is the extent of the power of a receiver? Without yet enumerating the
powers. But if you look at the enumeration there, what is the extent of the power
of a receiver.
Q & A: Can he execute a power involving ownership? NO.
Q & A: Or more or less his power is limited to powers of administration? YES.
TAKE NOTE: The power of a receiver is actually limited to the power of an
administration.
MEMORIZE: General Powers of receiver (Section 6, Rule 59, 1997 Rules of Civil
Procedure)
1. Shall have the power to bring and defend actions in his own name, in his capacity
as a receiver;
TAKE NOTE: The law here says that he can bring action in his name not in
a representative capacity but as a receiver.
2. To take and keep possession of the property in controversy;
3. To receive rents;
4. To collect debts due to himself as a receiver or to the fund, property, estate,
person or corporation of which he is the receiver;
5. To compound and compromise the same;
6. To make transfers;
7. To pay outstanding debts;
8. To divide the money and other property that shall remain among the persons
legally entitled to receive the same; and
9. To do generally such acts respecting the property as the court may authorize.
Q: With respect to funds, is he allowed to invest these funds which he is actually in
charge of?
Ans: He is not allowed to invest the funds in his possession UNLESS there is an
order from the court and a written consent of all the parties involved.
Q: In the appointment of a receiver, can anyone of the parties be appointed as a
receiver?
Ans: Generally NO. However, if the other party would actually gives his consent
even a party to a case can be appointed as a receiver. And no action can be filed
against the receiver without leave of court which appointed him.
 RULE 60
REPLEVIN
Q: What is the main action for replevin?
Ans: The recovery of the possession of a personal property.
TAKE NOTE: When you become lawyers there is some who would file an action for
replevin. WRONG. Your main action is actually for recovery of possession of personal
property with a prayer for an issuance of a writ of replevin. Because here is no main
action which is called as replevin.
Q: What is the purpose why one would resort to a provisional remedy of replevin?
Ans: To recover personal property capable of manual delivery or wrongfully detained
by a person. This is the primordial purpose of a writ of replevin.
Procedure:
1. Replevin must be filed at the commencement of the action or at any time
before the defendant files his answer.
2. In the application, requirements for the issuance of a writ of replevin are:
(MEMORIZE: Section 2, Rule 60, 1997 Rules of Civil Procedure)
1. Affidavit, must allege:
a: That the applicant is the owner of the property claimed or even if he is not the
owner, that he is entitled to the possession of the same;
TAKE NOTE: Meaning to say, we can therefore make a conclusion that the applicant
need not be the owner of the property. He can still apply even if he is not the owner
but actually he has a right to the possession of that particular property.
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 or should be
released from such seizure or custody; and
d: The actual market value of the property.
2. Bond.
How much? Double the value of the property as stated in the affidavit. Executed
always to the adverse party.
That’s why in your affidavit one of those which you must allege is the value of the
property subject of your application for the issuance of a writ of replevin because
that is in accord with the requirement must post a bond double of the value of that
particular property. The affidavit must state the actual market value of the property,
NOT the assessed value.
If these requirements are not complied with, then the court cannot issue the prayed
for writ of replevin.
RULE 61
SUPPORT PENDENTE LITE
Support pendent lite is an amount of support provisionally fixed by the court in favor
of person/s entitled thereto during the pendency of the main action for support.
Q: What are some instances in our rules when you can file for support pendente lite
aside from filing for a main action for support?
A: 1. actions for habeas corpus
2. in criminal cases of rape
3. an action for violations of RA 9262 anchored on the ground of financial abuse
Q: In cases filed for rape when the victim bore a child as a consequence,is it proper
that she files a motion to the same court trying the criminal case for the latter to
grant her support pendente lite?
A: IT DEPENDS. If the civil liability has not been expressly waived, reserved or
instituted prior to the criminal action, then the court can grant such motion.
It is the same with attachment, in criminal cases, that the civil liability must be
instituted with the criminal case.
Q: What is the procedure in filing for support pendente lite?
A:
1. Filed at the commencement of the action or at any time prior to the final
judgement or order
2. Verified complaint or motion stating your reasons for asking support
3. Supporting affidavits, depositions or other documents
4. Respondent given 5 days from receipt of the service of a copy of the
application to file his comment and if so desired, with accompanying
affidavits, depositions or other documents to strengthen his comment
5. Upon receipt of the comment, the court shall set it for hearing. The court is
not allowed an ex parte decision in granting the support pendente lite. (like
injunction)
6. If during the hearing, the court is convinced based on arguments raised,
then the court will grant the application and issue the corresponding
support.
Q: Until when is the life of a support pendente lite?
A: Until after there is already a judgement of the court in the main case.
Note: The grant of support pendente lite is only provisional. Thus it can be modified
by the court until after the hearing of the main case is actually finished.
In our rules, support is an action where there can be no finality. It can be modified
by the court any time when the financial condition of the defendant would improve.
Thus you can file a motion before the same court to modify the support.
Q: What will happen to the support pendente lite, already given by the respondent,
if the court found out after hearing that the plaintiff applicant is not entitled?
A: There can be proper restitution
If proper restitution is not possible, the respondent can file a separate action against
the persons who are legally obliged to support the plaintiff
*Rarely would women resort to filing a case for support, they would instead file for
an action for violation of RA 9262 on the ground of financial, economic, sexual,
emotional or physical abuse.
Of the about ten civil actions, from 61 to 71, some of these are commenced by
petitions and some of these are commenced by complaint.
The following are the cases commenced by complaint; others not in the
enumerations are automatically commenced by a petition:
1. Interpleader
2. Expropriation
3. Foreclosure of real estate mortgage
4. Partition
5. Forcible entry and unlawful detainer cases
The others therefore are also commenced not by complaint but by petition.
Automatically, if this is a complaint you term the parties, plaintiff and defendant. If
this is a petition, you term the parties, petitioner and respondent.
RULE 62
INTERPLEADER
We start off with the first special civil action. Interpleader.
Very short but very peculiar in terms of application.
Q: How do you define an interpleader?
Ans: It is a special civil action or remedy whereby a person who has a property in
his possession or has an obligation to render wholly or partially, without claiming
any right or interest in both, comes to court and asks that defendants who have
conflicting claims thereon or who consider themselves entitled to demand
compliance with the obligation, be required to litigate among themselves to
determine who is entitled to the property or payment or obligation.
JS: simply put, if you are in possession of a particular property and you have no
claim over it, and there are several others claiming that they are entitled to the
property, to play safe you file a complaint for interpleader. The claimants interplead
among themselves before the court and prove who has a better right to that
disputed property.
This is kasi to play safe particularly if you have an obligation, and you want the
obligation extinguished, it might be that you might have delivered that to the wrong
person, in point of view of the law, your obligation is not extinguished. If you are
not sure, the best remedy is always to file an action for interpleader.
Q: Which court has jurisdiction over an action for interpleader?
Ans: it depends on the amount of the assessed value of the property.
That is one peculiar characteristic in the special civil action of interpleader. That
before the summons is issued; an order by the court is made to the conflicting
claimants for them to interplead among one another for them to prove who has a
better claim. However, it shall be served together with the summons and complaint.
Similar procedure noh, 15 days to answer, etc. etc.
The grounds for motion to dismiss under rule 16 in the rules of court are the same
grounds for the motion to dismiss in a complaint for interpleader.
Q: Can there be one additional ground for a motion to dismiss here apart from
the grounds enumerated in rule 16?

JS: This is a special civil action which can be filed either before the first level courts Ans: Yes.
or the second level courts. If this is a personal property, if the amount of the value
of the property does not exceed 300,000, except in metro manila which is 400,000, Q: What is that?
that means to say that first level courts has jurisdiction. But if it exceeds 300,000 or
400,000 in metro manila, rtc. Ans: Impropriety of the complaint for interpleader.

If this is real property, you based it on the assessed value if it is not more than Siguro because the allegations in the complaint will show that the three requisites
20,000, except metro manila 50,000. If more than 20,000 or 50,000 in metro manila, for an interpleader to be filed are not complied with. If it appears therefore, that it
then the complaint for interpleader is clear that the property actually belongs only to A, not to B and C as claimants.
The filing therefore of an interpleader is considered in our law as improper.
Q: What are the requisites to file an interpleader?
Although I was telling you already that the Supreme Court and the IBP, advises
Ans: lawyers to observe restraint in filing a motion to dismiss, instead grounds for motion
to dismiss be used as special and affirmative defenses.
1. That the party initiating the interpleader has no interest or it has interest
but his interest is not disputed by the claimants;
2. There must be two or more claimants with adverse claim over the property;
3. That the property subject of the interpleader should be one and the same.

Q: in terms of procedural requirement, what is one characteristic of

interpleader which is not synonymous to other special civil action?

JS: Upon filing of the complaint, immediately the court will issue an order to the
conflicting claimants for them to interplead against each other which order now will
be served together with summons and the complaint.
 RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Apparently by the name of the rule itself, it gives you the conclusion that there are
actually two types of actions. One is declaratory relief and the other is other similar
remedies.
Q: What are cases covered by other similar remedies?
Ans:
1. Action to quiet title
2. Action for the reformation of an instrument (remedy when one of the parties
was led to believe that he was signing a mortgage, but was actually a deed
of absolute sale; vitiated consent on the ground of mistake; presupposes
the contract is valid but did not express true intent of parties)
3. Action to consolidate ownership (sale with right to repurchase/ PACTO DE
RETRO sale)
Q: What can be the subject matter of a declaratory relief? (Because to be
honest with you the enumeration is exclusive. Meaning to say if the declaratory
relief will not be one of those enumerated by the rules upon which it is proper to
file this petition, then you cannot file therefore a petition for declaratory relief.)
1. There must be an actual justiciable controversy,
2. That the issue there is ripe for judicial determination,
3. That the party seeking the relief must have a legal interest in the
controversy,
4. The controversy must be between persons whose interests are adverse.
In a decided case, it is required that there must be a justiciable controversy because
the court in a petition for a declaratory relief is not called upon to render a mere
advisory opinion. But the court I repeat has to conduct a proceeding and whatever
will be the result of the proceeding will give rise to what we call res judicata. And
that is the reason why the first requisite is that it must be a justiciable controversy.
JS: Apart from knowing these four requisites, what is one 33ndispensable
principle that we have to remember insofar as filing of a petition for
declaratory relief is concerned?
Otherwise, if that is violated, then the petition is definitely will not prosper instead
you file an ordinary civil action.
And in fact when the petition is pending and that was proven to be violated, it will
not be dismissed but the case will be converted into an ordinary civil action. Then
the court will allow the parties to submit their respective pleadings.

ANS: What is that?

1. deed
2. will Ans: there must be no breach or violation.
3. contract or any written instrument
4. statute
Correct. So that if prior to the filing of the petition for declaratory relief, there was
5. executive order or regulation
already a breach or violation of that particular ordinance or of that particular statute,
6. ordinance
governmental regulation, you can not file a petition for declaratory relief. Under the
rules you instead file an ordinary civil action.
JS: The rationale why we have to give importance to the enumeration is because a
petition for declaratory relief shall only include those he has enumerated correctly.
Or if there is no violation yet, and you were able to file already the petition for
Therefore, they are exclusive in character. If it is found out that your declaratory
declaratory relief and while the case is pending, and it was proved that there was
relief does not involve any of these particular instruments enumerated, then
already a violation or breach of that particular ordinance, statute, etc., it will not be
therefore your action shall definitely not prosper.
dismissed but is converted to an ordinary civil action. Then the court will allow the
parties to submit their respective pleadings.
Q: What are the requisites for a petition for declaratory relief?
MOST IMPORTANT CONCEPT YOU HAVE TO REMEMBER insofar as the concept of
Ans: petition for declaratory relief is concerned.
So, that is the petition for declaratory relief.
Other Similar Remedies
a. Reformation Of An Instrument
Q: What is usually the kind of contract which is always distinguished with that of an
action of reformation of an instrument?
A: Annulment of Contract.
Q: In reformation, compared to the annulment of contract, where lies the
difference?
A: In reformation, there is consent. But what was agreed upon was not reflected
correctly that is why you have to reform the instrument to express the true intention
of the parties. Because if the others’ consent were vitiated by VIMFU (violence,
intimidation, mistake, fraud, undue influence), the remedy is not to reform but the
remedy is actually to file an action for annulment of contract.
In reformation, the contract in itself is valid. Meaning to say, all the elements for a
valid contract, like consent, subject matter and capacity of the parties to contract.
However what was written was not the true intent of the parties. That’s why you
have to reform the instrument.
And that is the difference of reformation and annulment of contract.
Q: Now, you will agree with me, that all contracts which do not express the true
intention of the parties may be reformed, EXCEPT:
Ans:
1. Wills
2. Simple donation inter vivos where no condition is imposed
3. When the document is actually void
b. Consolidation Of Contract
Q: In consolidation of contract, what part of your law on sales was this discussed?
A: Pacto de Retro sale with a right to repurchase.
We talked about legal redemption and conventional redemption as a ground for
extinguishment of a Pacto de Retro Sale. In pacto de retro sale, we talked MORE
about conventional redemption.
Q: How many years to have the so called conventional redemption?
A: 10 years. If the redemption was agreed upon by the parties.
Q: if there was no period agreed upon by the parties on a pacto de retro sale?
A: 4 years.
Q: When will you start counting the 4 year period?
A: 4 years from the date of the contract or the pacto de retro sale was actually
entered into.
Q: so why is there a need to file a petition for consolidation? What will happen in
ten years, or 4 years if no redemption was made by the vendor a retro?
A: Consolidation kaagad noh of ownership.
Q: If this a real property, can you register that without a judicial order?
A: No, there is a need to file a petition for consolidation after the lapse of the ten
or four years respectively. Kasi the consolidation of ownership will not be registered
not unless there is a judicial order. Meaning to say that is only needed for registration
particularly if this is a real property. Kasi, how can you trAnsfer na the title in your
name now as vendee a retro if you were not able I repeat to register the
consolidation before the office of the registry of deeds of the city or province were
the property is located. And under our rules, you can only register the consolidation
if there is a judicial order.
That’s why my dear students, in cases when there is a petition for consolidation of
ownership, one of the defences if you are the vendor a retro, when what was
actually entered into was not a pacto de retro sale but was actually a real estate
mortgage. That is one important defences that should be considered. Kasi if
apparently the court will rule that if originally it was actually a real estate mortgage, RULE 65
there can be an additional redemption of 30 days (JS: I hope I am correct) after PETITION FOR CERTIORARI
finality of the judgement. That is if it was proven that what was actually entered
into by the parties is not a pacto de retro sale but was actually a real estate If aggrieved in the decision of the COMELEC or Commission on Audit go directly to
mortgage. the Supreme Court.

c. Action To Quiet Title Ground: grave abuse of discretion amounting to lack or excessive use of
jurisdiction.
Q: Action to quiet title. The same ito with recovery of ownership, recovey of
possession, reconveyance, you want to what? Distinction

Certiorari Prohibition Mandamus

A: You want to remove a cloud or a doubt on the title of a property. At the end of
the day, it is actually an action where one claims for ownership of the property. Purpose An to correct an To prevent the To compel the
act perform of commission or performance of
In an action for quieting of title, the jurisdiction depends upon the assessed value the respondent carrying out of an the act desire
of the property. act

With respect to Only Discretionary and Only ministerial

the act sought Discretionary act ministerial act act
to be control
RULE 64 As to the Court, tribunal Court or tribunal Court or tribunal
PETITION FOR CERTIORARI respondent etc. (exercising exercising Judicial exercising Judicial
Q: How many copies? judicial or quasi- or non-judicial and non-judicial
Ans: 18 copies including the all original copy of the decision or the certified true judicial power) function function
copy certified by the clerk of court of the court where the decision was rendered.

If the court finds merit in the petition, the respondent shall require to Discretionary act is the power to determine the law (ex. You cannot compel the
submit its comment within 10 days as provided for the rules and also college of law to allow you to graduate)
within 18 copies.
Ministerial act are acts done which requires neither exercise of official discretion
Q: Effect? of judgement
Ans: the filing of the petition shall not stay the execution not unless the appellant
court issue a writ of temporary restraining order or a temporary restraining order Common element/ requisite
-there is no plain, speedy and adequate remedy (for example, if appeal is the
Q: Difference between rule 65 and 45? adequate remedy, you cannot resort to this actions)
Ans: in 45 the filing of the petition shall stay the execution.
Exception:
1. When the order is a patent nullity
2. When the appeal is not the speedy or adequate remedy
3. When there is a certain special consideration for public welfare, for
public policy
 4. When the interest of the government would be prejudice
5. –
6. –
Q: Certiorari involves usually what kind of issue or error?
Ans: errors of jurisdiction when the court or quasi-judicial agency commits grave
abuse of discretion amounting to lack or excess of jurisdiction
Q: What is the common procedure in filing certiorari, prohibition and mandamus?
Ans: period (within 60 days from the receipt of the judgement order, subject to
such petition)
Q: Where to file
Ans: concurrent ( SC, CA, Sandigangbayan, RTC)
Q: Can it be extended?
Ans: yes, but just for most compelling reasons but not more than 15 days
Q: Is there a difference in terms of procedure of certiorari, prohibition and
mandamus are filed in the Supreme Court, court of appeals to that filed to the
RTC?
Ans: in RTC, it is not needed to copy furnish the respondent but necessary in SC
and CA. RTC will issue an order for comment and summon the defendant
Q: Who shall be included as a respondent?
A: public respondent (like judges of the court who rendered judgement but the
court cannot compel the judge to file a comment unless ordered by the CA) and
private respondent
Q: What is the purpose of filing Motion for Reconsideration before filing petition
for certiorari under rule 65?
Ans: in order for the court of quasi-judicial agency to correct its error (it is
mandatory to file MR) pro forma rule only apply in rule 45
Exception:
1. When the order is patent nullity
2. When it is shown that the petitioner is deprive of due process
3. When there is an extreme urgency
4. –
5. –
6. –
7. –
8. –
9. –
The order of the court will not stay unless a court orders a writ of preliminary
injunction of temporary restraining order
RULE 66
QUO-WARRANTO
Q: Meaning?
Ans: The literal meaning of quo warranto meAns, “By what authority” siya, that is
basically the concept my dear students. In the object of quo warranto is to determine
the right of a person to the use or exercise of a franchise or office and to oust the
holder from its enjoyment viz a viz if his claim is not well founded or if his forfeited
his right to enjoy the office, that is the definition of what is a quo warranto.
Q: How commenced?
Ans: Now under the 1997 Rules of Procedures, it is commenced by filing a verified
petition.
Q: Against whom it is filed?
I repeat you commence the filing of a quo warranto petition under rule 66 against
the following persons, so meaning to say these persons will be the respondents:
1. Persons who usurps a public office, position or franchise,
2. A public officer who performs an act constituting forfeiture of a public office,
3. De facto corporation.
QUO WARRANTO Under The CORPORATION CODE
As far as quo warranto against Corporation are concerned, this is basically under
the provision of the Corporation Code of the Philippines.
There are kinds of private corporation, quo warranto here refers to private
corporation organized under Philippine laws. Major classifications: de jure, de facto
and corporation null and void from the beginning.
A de jure corporation is a corporation without defect; a corporation is null and void
if the corporation failed to comply with the mandatory requirements for the
formation of a corporation, meaning to no corporation exists at all; a de facto
corporation is not void but it exists but failed to comply with the provisions of the
Corporation Code but these provisions are not mandatory requirements for the
formation of a corporation.
How To Question?
Under the provision of the Corporation Code of the Philippines, you cannot
attack a de facto corporation collaterally; the law does not allow the attack
of a de facto corporation collaterally. If you want to attack the validity of a
private corporation you do that by meAns of quo warranto proceedings.
That’s why this will be third against whom the verified petition is filed. A de
facto corporation actually exist as such however, it failed to comply with
certain requirements as provided for by the Corporation Code of the
Philippines to make it a de jure corporation. It exist as such, it is not a null
and void corporation, it exist as such but there are certain problems in the
formation of the corporation so that you can attack it but not by meAns of
a collateral attack but you attack it by meAns of filing a quo warranto
proceedings. That’s why it is covered also by this concept of quo warranto
under Rule 66 of the 1997 Rules of Civil Procedure.
Q: Who Are The Petitioners?
The petitioner here, can be the Republic of the Philippines represented by the Office
of the Solicitor General or in some instances maybe represented by a Public
Prosecutor or a private person may also be a petitioner.
Example:
If that private person is actually entitled rightfully to that particular public office or
office so to speak but he was deprived of his right to hold that particular public office
or position because allegedly this was unlawfully usurped by the person against
whom he files the petition, then definitely he can file quo warranto proceedings.
Q: Who May Represent?
I repeat, this can be filed by the Republic of the Philippines and once this is filed by
the Republic of the Philippines this one is always represented by the Solicitor
General. In all Government cases, against or for the Government, the Government
is always represented by the Office of the Solicitor General. Although under Rule 66,
that the Government can also be represented by a Public Prosecutor. Again, the
petition can also be commenced by a private person who claims to have a better
right to that particular public office or position which is unlawfully usurped by
another.
Venue, Difference Thereof As To Who Filed The Petition
Although, that if this is a quo warranto petition which is when filed by the Solicitor
General, that the venue can be the RTC of the City of Manila lang, the Court of
Appeals or the Supreme Court.
I repeat, as far as venue is concerned, because remember a quo warranto petition
can be filed before the Supreme Court, it can be filed before the Court of Appeals,
it can be filed before the Sandiganbayan in the exercise of its appellate jurisdiction,
it can be filed before the Regional Trial Court.
However, if it is the Solicitor General which will file the quo warranto proceedings in
behalf of the Republic of the Philippines, the law is very clear, that it can only be
filed in the RTC of the City of Manila or it can be filed before the Court of Appeals
or it can be filed before the Supreme Court.
Take note of that because it entails a little difference in terms of who, in terms of
the venue where to file the quo warranto proceedings, depending on who would be
the petitioner.
Although as a general rule, this quo warranto proceedings is filed in the place where
the petitioner resides, like what I said, depends lang siya if this is the Solicitor
General, because it can be filed before the RTC of Manila, the Court of Appeals, and
the Supreme Court.
As To The Need For Leave Of Court
Now, another thing that you have to determine and remember in connection as to
the petitioner or the person who would file the quo warranto petition, one decision
of the Supreme Court said that, a private person is allowed to file a quo warranto
proceeding without the intervention of the Solicitor General.
In which case, according to one decision of the Supreme Court, if this is a private
person who files a quo warranto proceeding, he can file it without need of leave of
court. However, it can also be filed by the Solicitor General’s Office or by the Public
Prosecutor in behalf of that person, but if this is what happens there has to be a
leave of court. So that is one thing that you have to closely consider.
In several decisions of the Supreme Court, the honourable Supreme Court ruled that
a private person is allowed to file a quo warranto petition without the intervention
of the Office of the Solicitor General.
In fact, if it is a private person who files a quo warranto petition, he can do so
without need of leave of court. However, he may also be represented by the Office
of the Solicitor General or the Public Prosecutor, which will file in his behalf, however,
in this particular instance there is a need for a leave of court. So please take note
of that particular, well a qualification, as far as the filing of a quo warranto petition
depending on who the petitioner will be.
Prescriptive Period
Prescriptive period, very important, in quo warranto in relation to a public office
because remember later we will also be discussing quo warranto under the Omnibus
Election Code of the Philippines.
The prescriptive period, I repeat, is one year after the cause of the ouster or the
right of the petitioner to hold such office or position arose. Take note, the person
aggrieved because he is the one rightfully entitled to hold that public office, should
file the same within a period of one year only, counted from the time the ouster or
the right of the petitioner to hold such office or position arose. So if you fail to file
that, forever barred because that is the prescriptive period.
However, if you’re able to prove in court and you eventually were able to seek a
favorable judgment, you are also allowed to file an action for damages and the
action for damages should also be filed within one year from the entry of judgment,
so please take note of that.
I repeat, once you file a petition, you were successful because the petition was
granted you won in the petition, you can I repeat, file an action for damages against
the respondent and the prescriptive period for filing of an action for damages is also
one year but you count the one year period from the entry of judgment in that
particular petition for quo warranto. I was telling you in Rule 39, if the court finds
out that the judgment is already final and executor, then the court now will issue an
entry of judgment and once the court issued an entry of judgment, it is already
indubitable, without doubt that the decision is already final and executory. Now you
can already file a corresponding motion for execution, under Rule 39 of the 1997
Rules of Civil Procedure.
Quo Warranto Under The Omnibus Election Code
Now we are now moving to quo warranto under the Omnibus Election code, that
the concept of quo warranto is always distinguished to election protest, this two will
always go together. Diba, you have two ways to question the winnings of a
candidate, it is either a quo warranto or an election protest.
Q: which court has jurisdiction for election protests of the following,
1. Municipal - RTC
2. Barangay - first level courts
Difference:
The major difference between quo warranto under the Omnibus Election
Code and that of an election protest is the cause of action, in quo warranto
the grounds would be ineligibility to the position or disloyalty to the Republic
of the Philippines. Another, in election protest it is the irregularity in the
conduct of elections.
Major Distinction of Quo Warranto; As To Elective Or Appointive Office.
Quo warranto can be on an elective office or an appointive office, and these are the
major distinction:
1. In quo warranto regarding the elective office the governing law is the Omnibus
Election Code while in appointive office is Rule 66 of the 1997 Rules of Civil
Procedure.
2. In elective office the issue is always the eligibility of the person elected, in
appointive is the legality of the occupancy of the office by virtue of a legal
appointment.
3. In the first, in elective office you file it within a period of 10 days after the
proclamation of the results of the election. In appointive office, is 1 year from
the time of the ouster or the time the right to hold the office arose.
4. Quo warranto in relation to elective office is brought to the COMELEC depending
on whom, RTC or the first level courts. For quo warranto in appointive office,
Supreme court, Court of Appeals, RTC.
5. In elective office, the quo warranto maybe filed by any voter. In appointive office,
the petitioner is always the person entitled to the office.
6. In elective office, the person not entitled to the office will be unseated. In
appointive, if the one who filed is actually entitled to the position, he is placed in
that particular position.
RULE 67
EXPROPRIATION
When it comes to expropriation you have to distinguish if it is a local government or
the national government, because if it is the LGU you have to follow the provisions
of the Local Government Code particularly section 19 of RA 7160, if it is the National
Government and other entities it is the provisions of Rule 67 that governs, but if it
is the National government for infrastructure projects it is governed by RA 8974.
Eminent Domain
The power which gives rise to expropriation is the power of eminent domain. Even
if there is no enabling law, it can still be exercised by the Government being an
inherent power. The power is eminent domain the right is expropriation.
Expropriation By Local Government Units
Expropriation to be valid otherwise it can be dismissed outrightly, under section 19
of RA 7160, the following requisites must be complied:
1. There must be an ordinance authorizing the local chief executive to file and
exercise the power of eminent domain and eventually file an expropriation
proceeding,
2. Exercised for public welfare or for the benefit of the poor and the landless,
3. Payment of Just compensation.
Important:
Very important, before they file the expropriation proceedings, the local
government unit should have first a valid offer to the owner of the property
sought to be expropriated but the offer was declined.
Judicial Prerogative
In the case of EPSA vs Dulay, which nullified the basis for the just
compensation as based on the assessed value as assessed by the assessor
or by the owner whichever is lower. The matter of determining the just
compensation is a matter of judicial prerogative.
Stages Of Expropriation
There are two stages in expropriation proceedings.
1. To determine the authority of the plaintiff to expropriate, so if after trial the
plaintiff was able to prove the requirements set forth by the rules, we issue an order
of expropriation or condemnation, which case is appealable because now take note
this is the first special civil action where the law allows multiple appeals, notice of
appeal is not allowed there must be a record on appeal within 30 days to the Court
of Appeals.
2. After the issuance of order of expropriation or condemnation, the next step is the
determination of just compensation which under our rules we are to appoint not less
than 3 commissioners which will aide the court in determining the just compensation
and again that order on the just compensation is likewise appealable to the Court
of Appeals.
Q: The order of condemnation or expropriation is appealable, will it prevent the
court from proceeding to the next stage?
Ans: No, even if there is an appeal, the court will still continue on determining the
just compensation because anyway if the order is reversed by the appellate court
there can be appropriate restitution which can be made pursuant to the rules.
Verified Complaint; Content Thereof.
The verified complaint should contain the following:
1. You state with certainty the right for expropriation and the purpose.
2. Describe the real or personal property sought to be expropriated.
3. Join as defendants all persons owning or claiming to own, occupying any part of
the property or interest therein, showing as far as practicable the interest of each
defendant. If the plaintiff cannot determine the owner, an averment to that effect
must be made in the complaint.
Upon filing of these, summons shall be served to the defendants.
Answer
The Answer of the defendant, if he has an objection he will file his Answer or maybe
raise valid defences. All defences must be alleged in the Answer otherwise deemed
waived, but he may file a leave of court for proper amendment of Answer.
If the defendant does not have any objection to the complaint or he does
not have any defence on his Answer, he need not file any Answer, what he
will file under the rules is just a notice of appearance and a manifestation
to the court that he offers no objection to the expropriation proceedings of
the property.
Prohibited Pleadings
Unlike in ordinary civil actions, counter claim, cross claim, third party complaint are
not allowed in expropriation proceedings as provided in section 3.
Q: if the defendant in an expropriation proceeding did not file an Answer does that
mean to say that he is already deprived of participating in the subsequent
proceedings?
Ans: No, because he can still participate in the determination of just compensation
even if apparently he did not file his Answer. He is not deprived by the law of his
right to participate as far as the second phase of expropriation proceedings is
concerned and this is the determination of just compensation.
Entry of the applicant is allowed upon filing of the complaint and if the applicant
under sec 2 of rule 67 was able to deposit with the proper government agency an
amount equivalent of the assessed value of the property subject of the
expropriation. But we have a to make a qualification in connection with local
government units which are the applicant for expropriation because it
requires 15% equivalent to the assessed value of the property for
purposes of taxation however if this is a nat’l gov’t which the applicant
for expropriation, they must pay the entire value of the property to the
owner (so that is the basic difference, NOTE)
Under rule 67, there can be entry upon deposit to the proper gov’t agency
considered which under our local govt unit is equivalent to 15% but you have to
take note however that as far as nat’l gov’ts are concerned, those expropriation are
covered by RA 8974.
Under RA 8974 when it is the nat’l govt that which will expropriate mga lands
because these are needed for gov’t infrastructure projects and i told you before that
if this is so, courts are not allowed to issue a TPO or Writ of Preliminary Injunction
because under our rules, it is only the SC which is allowed to issue a WPI or TPO.
Between rule 67 and that of RA 8974, you have to take note that the law says that
the nat’l gov’t upon filing of the complaint and so that it will be able to gain entry
into the property upon the filing of the complaint the law requires that it must
immediately pay 100% of the value of the property based on the current relevant
zonal valuation of the BIR & the value of the improvements and/or structures thereof
as determined by the sec. 7 of RA 8974.
Note: So if the question does not specify my dear students, w/c is the
applicant whether it is an LGU or nat’l govt covered by RA 8974, take note
of the requirements as far as entry of possession is concerned upon filing
of the complaint. This is both allowed in sec 2 of rule 67 and likewise in RA
8974 but there is a difference as far as the deposit is concerned. But be
that as it may whether sec 2 of rule 67 or whether under RA 8974,
there must always be a notice to the defendant (take note) before
court issues the corresponding writ of possession. In fact in the case
of Biglang-Awa which I think is in the book of Regalado, the moment that
the applicant for expropriation was able to comply with the requirements
set forth in sec 2 for rule 67 & likweise the RA 8974 and there was notice
on the defendant it becomes ministerial on my part as a judge to issue a
corressponding writ of posession, so that’s the recent decision to allow the
applicant to actually gain entry to the property sought to be expropriated.
Q: what will happen to the 15% in section 2?
Ans: It will serve as an advanced payment of the value of the property in case the
court on the trial of the merit of the case talaga rendered judgement granting the
order of expropriation in favor of the applicant so it constitutes talaga an advanced
payment. Of course if later on you lost in the case, there will be a proper restitution
anyway as provided by the rules but we are talking here about entry of the applicant
upon the filing of the complaint. The similarity is that there is always notice to the
defendant. The difference man lang is how much.
If the court under trial on the merits is convinced that there is a lawful purpose for
the granting of the expropriation to the petitioner-applicant, the court will issue an
order of expropriation which is appealable because expropriation is one of the cases
on which the law allows multiple appeals. The order actually is as if a judgement
but we dont call it a judgement but an order of expropriation, my dear students,
okay? I repeat, even if the order issued by the courted granting the
expropriation is appealed by the defendant, that will not prevent the court
from proceeding to the second stage of expropriation proceeding and this
is now the determination of payment of just compensation. And under our
rules in connection with this particular ascertainment of just compensation, very
clear in sec 5 or rule 67 that the court shall appoint not more than three
commissioners to ascertain the appropriate just compensation for the property.
Q: If the party objects, it is given how many days?
Ans: 10 days! Objections to the appointment may be made within 10 days froms
service of the order of the apptment and I repeat parties during the proceedings are
allowed to present their respective evidence to prove their respective claims on how
much is the just compensation of the property.
Remember, I told you in the famous case of EPSA vs DULAY, the compensation is
based on the assessed value as declared by the owner and the assessed value
declared by the accessor whichever is higher is aready nullified because the matter
of whether how much is the JC is actually a judicial prerogative.
Take note also that the appointment of a commissioner is likewise appealable
including the order on the compensations found out by not more 3 commissioners
is likewise appealable, my dear students. In fact under the rule, after the
presentation of evidences before them, they should as soon as possible make a
report within 60 days from the time they were notified of their respective
appointments although the 60-day period may be extended at the discretion of
the court. Upon submission, the parties are always given copies to this report of the
commissioners so that the parties can actually file their respective objections to the
report of the commissioners which is under our rules they are given 10 days from
receipt. The court may either accept the report or reject or accept part or reject
the other part.
If the court accepts the report, the court shall issue a judgement therefor in
accordance with the report pero pag the court rejects the report of the
commissioner, under sec 8 the law says that the court may appoint again new
commissioners or recommit the same to the commissioners for further report of
facts. Here the court would always consider the best interest of all parties concerned
and likewise said the judgement of the court if it accepts the report of the
commissioner is an appealable judgement being a case where the court allows
multiple appeals. Court may also order payment of interest because from the time
of the filing until after the award is actually given by the court, there is always a
lapse of time there and diba in our judgement we also have to specifiy payment of
legal interest from the time property was actually taken by the applicant. So please
note!
Q: what is the effect if the court has already rendered judgement and on the JC but
the JC is not paid? Does that particularly mean that the owner of the property will
recover the property?
Ans: No, but if not paid w/in 5 years, that’s the time my dear students that the
owner concerned now allowed to recover the property. So I repeat, non-
payment of JC as mandated by the rules does not entitle immediately
the owner to of the land to recover possesion of the exproriated
property because under our rules the expropriator is given 5 yrs from
the finality of the judgement in the expropriation proceeding to pay
the same. If there is no payment, definetly within 5 yrs, this is now
the time where the law allows the landowner to recover possesion of
the subject property. And last lang na concept, title to the property passes
from the owner to the expropriator after full payment of the JC.
RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE
There are 2 kinds/ modes of foreclosure. One is judicial under rule 68 and extra
judicial.
Of course you know what is a mortgage? Correct? It is an accessory contract. What
is the principle contract? LOAN!
Definitely it is loan as a principle contract tapos if you want to use a real property
by way of security you execute a contract of real estate mortgage. But if you want
to use personal property by way of security to the loan, you execute a chattel
mortgage.
Q: Where lies the difference between the procedural requirements in terms of real
estate mortgage and chattel mortgage?
Ans: For purposes of validity.
Q: Is an unregistered real mortgage null and void?
Ans: Diba registration is only needed to effect as far the whole world or third person
are concerned. Because even if a real estate mortgage is not registered, it is
nevertheless valid and binding between the parties. Okay?
 Pero if chattel mortgage if not registered with the chattel mortgage registry,
the chattel becomes null and void because under the Civil Code on the validity of
chattel mortgage, the law says that it must be registered with the chattel mortgage
registry. Failure to register, the chattel mortgage would mean that the chattel
mortgage even between the parties is null and void.
Q: If the loan is covered by a mortgage? What are the two remedies which can be
availed of by the mortgagee in case of non-payment of the loan by the mortgager?
Ans: 1) Collection of sum of money, or
2) Foreclosure which could either be judicial foreclosure or extrajudicial
foreclosure.
Easiest money is with extrajudicial foreclosure because you only file that with the
office of the clerk of court and everything is done by them, including the sheriff.
Under the court, it will take time because we have to go thru the ordinary trial
because it is also used in judicial foreclosure of mortgages.
There must be a stipulation that in case of non-payment of loan or
violations of the mortgage, you are allowed to resort to extrajudicial
foreclosure under ACT 3135. Without it, you have to resort to judicial
foreclosure. I would just like to remind you that it is not true that only
non payment of loan will justify foreclosure. Any other violations in the
mortgage would actually justify foreclosure.
Q: How come that in case of non-payment of the loan, you really have to result to
foreclousre of mortgage? Can there be a stipulation in the Real Estate Mortgage that
ownership shall be automatically trAnsferred to the mortgagee?
Ans: NO. You call it as pactum commissorium. That is the reason why! Including
upset price---that if property is sold at public auction, it must be sold at this price,
that is called KIPO! So there are two prohibitions in mortgage. One is pactum
commissorium and the other is KIPO or upset price.
Q: Dragnet clause?
Ans: Is a provison in which the mortgage is allowed to secure past, present, and
future indebtedness and that is valid. And the SC has consistently ruled that
mortgages given to secure future advancements is are actually valid and legal
contracts. That is not only limited to that. It can actually secure a future loan and
the law says it is allowed. NOTE PACTUM COMISSORIUM, KIPO, DRAGNET CLAUSE.
First two are not valid. Last one, valid.
Q: Where lies the difference between legal redemption and equity of redemption?
Take note lang, file a complaint for judicial foreclosure, diba to comply with the
requirements under sec. 1. What are these requirements?
Ans:
a. Date, due execution of mortgage
b. Assignment of mortgage
c. Names and residences of mortgagor and mortgagee, description of subject
property, statement if date of the note and other documentary evidences by
way of evidences to secure the mortgage, the amount paid and unpaid
thereon, and the name and residences of all person who have or claim
interest in the property in question. You must include all of them because
they are required by sec 1 of rule 68.
Like what I said ha, the proceeding are governed just like an ordinary civil action.
Q: In case you won in the case, the court renders judgment there. And the judgment
should contain what?
Ans:
1. ascertainment of the amount due to the plaintiff including interest and other
charges approved by the court
2. a judgement of the sum due, 3) an order that an amount duly paid by the
court or of the judgement obligee within a period of not less than 90 days
no more than 120 days from entry of judgement (note days bec very
important in discussing legal redemption and equity of redemption), in case
of default of such payment, property shall be sold at public auction to satisfy
the decision. Those are supposed to be the dispositive portion of the court
renders a judgment granting of course the the jducial foreclosure of a
particular mortgage.
Q: Are legal redemption and equity of redemption allowed in judicial foreclosure of
mortgage? Are these allowed in extrajudicial foreclosure?
Ans: NO as a general rule. What is only allowed in judicial foreclosure is equity of
redemption unless it involved the mortgage of banks and other quasi-banking
corporations or institution, in which the court allows not only equity of redemption
but also legal redemption. And extrajudicial foreclosure, if it is legal redemption.
Q: When can mortgagor exercise equity of redemption?
Ans: The law says not less than 90 but not more than 120 from the time of entry
of judgement but it can still be extended as long as the court did not yet confirm
the sale. In legal redemption, it is always one yr from the time of the registration of
the sheriff certificate of sale in the registry of deeds of the city or province where
the property is located.
The concept of EOR & LR will give us the concept of the sale of the mortgaged
property. Now under our rules, if the mortgagor was not able to redeem the property
within a period of 90 -120 days definitely, the mortgagee should file a motionf or
the sale of the mortgaged property because the rule is very clear that sale can only
be ordered by the court upon motion of the morgtagee sec. 3. So if there is no
payment within the 90-120 days, if you are counsel of mortgagee, file a motion for
the sale of the mortgaged property because the court cannot order the sale not
unless there is a motion duly filed by the mortgagee pursuant to sec 3 of rule 68 of
what we are discussing tonight.
Q: In connection with a motion for sale of mortgaged property, is it required that
mortgagor must be notified? And what is the effect if the motion was granted by
the court without notice to morgtagor? Would it mean that if the sale is based upon
the order of the court, it becomes null and void?
Ans: NO! It can be granted even without notice to the mortgagor in fact, this motion
for sale of mortgage property because no payment made by the mortgagor within
the 90-120 days is actually considered as a non-litigated motion. Meaning it can be
an ex parte motion. But after court granted order of the sale of the particular
property, the next step is it must be confimed by the court. This were the law is
very strict because as far as confirmation of the sale is concerned, this requires a
notice and hearing because dapat under our rules, the mortgagor is allowed to show
cause while sale shall not be granted or why the sale shall not be confirmed unlike
motion for sale where it can be done ex parte because it is a non-litigable motion
as far as motion for confirmation of the sale is concerned, the law is very strict,
there must be notice and hearing because if this was not complied then the order
confirming the sale becomes null and void. The reason is to give the mortgagor a
chance to show causes why the sale shall not be confirmed. So there is strict
requirement compared to that of a motion to sale of mortgaged property and very
important too because the cut-off date or exercise of EOR in JF is until after issuance
of the order of court confirming that. It can be within 90-120 but can still be
extended until after sale has been actually confirmed by court. That is another
reason why in case of confrmation, it shall only be done by meAns of notice and
hearing.
Just as a review:
Motion on the sale of the property -which can be done ex parte because it is
considered as a non-litigated motion.
Confirmation of the sale -this can only be done if there is notice and hearing to
afford the mortgagor to at least raise certain grounds as to why the sale should not
be confirmed. It is the cut-off period for the exercise of the equity of redemption
on the part of the mortgagor. That is the reason why is it that that there should be
a notice and hearing because if none, the order of confirmation of sale will be
considered as null and void.
Q: What will happen if after the sale of the mortgaged property, there is an
excess/surplus?
Ans: Excess should be returned to the mortgagor.
Q: if there is a deficiency of sale?
Ans: the plaintiff is allowed to file a motion for the purpose of proceeding against
the defendant as far as his unpaid balance is concerned. The recovery of the
deficiency shall only be made by a motion because under settled jurisprudence, you
cannot file a separate independent action to recover the deficiency. Motion
is appealable.
 Once the decision of the court is already final and executory and the sale is
confirmed by the court, the right of equity of redemption has already lapsed
without the mortgagor exercising the same, under the rules, the mortgagee
can file for the motion for the issuance off a writ of possession.
 A certified true copy of the order confirming the sale is necessary to be
registered in the Registry of Deeds to the city or province where the
property is located because the basis for the cancellation of the title by the
mortgagor in favor of the mortgagee is always anchored to this particular
fact because the mortgagor did not exercise his right of equity of
redemption. This is done after the confirmation of sale because this is the
cut-off period for the mortgagor to exercise his right of equity of
redemption.
Note: Although in judicial foreclosure of mortgage there is no legal redemption,
there is only equity of redemption, there is an exception: except in cases of
mortgages involving banks. Because aside from the exercise of the equity of RULE 69
redemption, the mortgagor of mortgages with banks is likewise given the so called PARTITION
legal redemption which under our rules is given one(1) year from the
registration of the Sheriff’s Certificate of sale to the Registry of Deeds of CERTAIN PRINCIPLES
the City or Province where the property is located. I repeat, the equity of
* Partition presupposes the existence of co-ownership. If a party who filed the case
redemption is exercised within 90 days to 120 days but can be extended
claims that he is only the absolute owner of the property subject of the partition,
as long as the sale is not yet confirmed by the court.
then definitely that should be dismissed. It might be another case but definitely not
Summary of Differences: a case for partition. It might be a case for recovery of ownership or possession,
reconveyance or quieting of title --- that is not the proper subject of partition.
Differences Judicial Foreclosure Extra-Judicial
Foreclosure * Co-ownership between two or more persons. That is the meat of the cause of
1. Governed by Governed by rule 68 Governed by Act 3135 action of the special civil action (SPA) under Rule 69 which we call as partition.
Must be stipulated at the
* Basic under civil law subjects. In the sense that if a property is co-owned by
contract
several persons, under the provision of the New Civil Code of the Philippines (NCC),
2. Involves Filing of an independent Does not require the filing
action of an action. What you no co-owner shall remain or obliged to remain in the co-ownership. Therefore, it
must do is to make the necessitates one or two to file the SPA for partition, which is synonymous with
application and file to the ordinary civil actions in terms of procedure.
office of the clerk of court
* One co-owner may demand any time that the property be now subjected to
(also called foreclosure
done by a notary public) partition among them except in the following instances as mandated under Art. 494,
3. Redemption Equity of redemption Legal Redemption Art. 495 and Art. 1084 of the NCC.
only (except in banks)
Art. 494. No co-owner shall be obliged to remain in the co-
4. Judgment There can be deficiency No judgment for deficiency
ownership. Each co-owner may demand at any time the partition
of Judgment (there can be deficiency)
of the thing owned in common, insofar as his share is concerned.
5. Recovery of Via motion Filing an independent
Nevertheless, an agreement to keep the thing undivided
Deficiency action (act no. 3135 does
not prohibit the mortgagee for a certain period of time, not exceeding ten years, shall
to recover the deficiency) be valid. This term may be extended by a new agreement.
A donor or testator may prohibit partition for a period
which shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by
law.
No prescription shall run in favor of a co-owner or coheir against
his co-owners or co-heirs so long as he expressly or impliedly
recognizes the co-ownership.

Art. 495. Notwithstanding the provisions of the preceding article,

the co-owners cannot demand a physical division of the thing
 owned in common, when to do so would render it
unserviceable for the use for which it is intended. But the
co-ownership may be terminated in accordance with Article 498.
Art. 1084. With the condition imposed upon voluntary
heirs before they can demand partition as not yet deemed
fulfilled.
* In connection with prescription, the right to demand partition and correspondingly
to file an action to demand partition of a property co-owned cannot be barred by
prescription as long as the co-ownership exist. But even then, while the right to
demand partition does not prescribe, there might be instances when the co-owner
might also acquire ownership by meAns of prescription if he can prove the
requirements set forth through prescription depending on whether you are in good
or bad faith:
Good faith – 10 years, bad faith – 30 years; and prove that you were in
open, adverse, and uninterrupted possession from the very beginning.
Based on a written contract, the prescriptive period is 10 years from the
date the contract is entered into.
* Under the rules, there are two ways by which a property co-owned may be
partitioned.
1. Agreement of the parties – justification: actually allowed and authorized under
Sec.12.
Sec. 12. Neither paramount rights nor amicable partition affected
by this Rule — Nothing in this Rule contained shall be construed so
as to prejudice, defeat, or destroy the right or title of any person
claiming the real estate involved by title under any other person, or
by title paramount to the title of the parties among whom the
partition may have been made; nor so as to restrict or prevent
persons holding real estate jointly or in common from making an
amicable partition thereof by agreement and suitable instruments
of conveyance without recourse to an action. (12a)
2. Legal concept anchored under Rule 69 - if some and not all shall agree to the
partition the property. A consequence of parties’ refusal to actually enter into
agreement of partition.
PROCEDURE
* When you file a case for partition, it should be filed by a co-owner who has a right
to compel the partition of the property and he should include all the co-owners and
those who have interest over the property as indispensable parties because it might
result to the filing of multiplicity of suits which is not allowed under the rules.
* Specify the property subject of the particular partition among others.
* First stage is governed by ordinary civil action – where the complaint is filed, then
summons shall be served for the defendants to file their Answer, plaintiff may opt
to file a reply, there will be pre-con, pre-trial, and after all of this then court renders
judgment.
Here after trial, the court should consider 1) to determine whether or not the plaintiff
is the real owner of the property in question. After this, 2) the court will likewise
determine WON there is indeed a co-ownership really exist among the plaintiff and
defendants. And that 3) the partition is not prohibited under Articles 494, 495 and
1084 of the NCC.
* If it is proven, the court will issue an order of partition (judgment of the court)
considered as a final order which is also appealable within 30 days with notice of
appeal and records on appeal.
Q: Where to file?
A: Only at the RTC. Partition is incapable of pecuniary estimation unlike
reconveyance, quieting of title, accion publiciana, reinvidicatoria, even annulment of
contracts if the ultimate objective is to recover ownership and possession wherein
jurisdiction depends on the assessed value.
*Venue is on the place where the property is located. If there are several
properties situated in different provinces, you can file the partition in any of
the RTC where each of the properties is located.
Q: Usually in a partition action, especially if the property is earning fruits (civil,
natural), would you include that in your complaint as a prayer for accounting of the
proceeds of the property?
 A: YES. Because you are not allowed to file a separate civil action for accounting of
the proceeds or fruits of that particular property. Otherwise, it will forever be barred.
If it is included, after the court has already found out that partition is proper, in the
order of partition, the court will likewise issue an order for the accounting of the
proceeds which is also a final order and being as such is also appealable.
* Actually in the order, the court in its decision will direct that the parties
by themselves will partition the property. If they can agree to make the
partition by themselves, submit that to the court so that the court will
confirm that agreement of partition among the parties.
* The order of partition and the order confirming the partition shall be
registered in the Office of the Registry of Deeds (ROD) in the city or province
where the property is located. It is only when the parties will not be able
agree by themselves to partition the property that the next step will now
come in and the court now will appoint not more than 3 commissioners who
are competent and disinterested to make the partition for the parties. The
appointment of commissioners presupposes that the parties were not able
to agree on a partition by themselves.
* There are instances when the commissioners would found out that the
property cannot be divided without prejudice to the interest of the parties,
in such instance the court may order that the property be assigned to one
of the parties willing to take the same provided he pays to the other parties
such amounts as the commissioners deem equitable. But if one disagrees
that it be assigned, he may also ask that the property be sold, in which case
the court shall order the commissioners to sell the property at public sale
and then divide the proceeds among themselves. (Sec.5)
* Under the rules, the commissioners shall make… (Sir reading the
provisions)
Sec. 6. Report of commissioners; proceedings not binding until
confirmed — The commissioners shall make a full and accurate
report to the court of all their proceedings as to the partition, or
the assignment of real estate to one of the parties, or the sale of
the same. Upon the filing of such report, the clerk of court shall
serve copies thereof on all the interested parties with notice that
they are allowed ten (10) days within which to file objections to
the findings of the report, if they so desire. No proceeding had
before or conducted by the commissioners shall pass the title to
the property or bind the parties until the court shall have accepted
the report of the commissioners and rendered judgment thereon.
Sec. 7. Action of the court upon commissioners’ report — Upon the
expiration of the period of ten (10) days referred to in the
preceding section, or even before the expiration of such period but
after the interested parties have filed their objections to the report
or their statement of agreement therewith, the court may, upon
hearing, accept the report and render judgment in accordance
therewith; or, for cause shown, recommit the same to the
commissioners for further report of facts; or set aside the report
and appoint new commissioners; or accept the report in part and
reject it in part; and may make such order and render such
judgment as shall effectuate a fair and just partition of the real
estate, or of its value, if assigned or sold as above
provided, between the several owners thereof.
* Take note that Section 7 mandates that upon submission of the report of the
commissioners, the court cannot just automatically accept the report and then
render judgment based on the report without conducting a hearing.
* So we presume that there was a hearing, the court is convinced and the court
now issued a judgment of partition. There is a ruling here allow me to quote:
“The proceedings had before the commissioners shall not bind the parties
or pass title to property unless the court shall have accepted the report of the
commissioners and rendered judgment thereon. Of course the judgment shall be
recorded in the ROD of the place in which the real estate is situated.” This can be a
basis for the issuance of separate titles as far as the co-owners are concerned
corresponding to their share on the property subject of partition.
At the end of the day, there are three stages in an action for partition.
1. The order of partition where the propriety of partition is determined.
2. The judgment as to the accounting of the fruits and income of the
property.
3. The judgment of partition.
All of these three are considered final orders and therefore these three are
appealable.
Q: In the action of partition, can the party also determine and compel expenses
incurred for the death of parents or other expenses chargeable to the estate subject
of partition?
A: No. One must file an action for settlement of the estate of the deceased person.
The law does not allow the heirs in the petition matters pertaining to expenses
chargeable against the estate like burial expenses or last illness. (Feguracion Jerella
vs Vioda Defeguracion, August 22, 2006, GR No. 154322)
Q: Can the court refuse to confirm the agreement of the parties?
A: No. The court would always approve it if that is the agreement of the parties. We
should even be happy there because that is less work. Our only work is to approve
and confirm the agreement.
A: No. There can be no res judicata, you cannot moved to dismiss based on letis
pendentia because remember an action for reivindicatoria concerns, I repeat
ownership while FE and UD concerns physical possession so even if there is cases
filed while FE and UD are pending but these cases are more or less for the recovery
of the ownership, that will never affect FE and UD which were filed. Not even
violation of non-forum shopping requirement because it only involves two cases with
the same issue or of the same cause of action. And definitely, one is for ownership
and one is for physical possession so definitely no violation of non-forum shopping
requirement.
These are the cases where even in first level courts can issue a writ of preliminary
injunction or temporary restraining order. In fact this is another exception to our
rule on preliminary injunction that dapat the act is about to be done because if the
act was already done it becomes useless for you to file a writ of preliminary
injunction. One of the Exception is when the act is continuing in nature,
remember, and one of these examples are the cases of FE and UD. Ok just
a review, in connection with preliminary injunction.

FORCIBLE ENTRY UNLAWFUL DETAINER

RULE 70
1. The possession is illegal from the 1. The possession is legal from the very
FORCIBLE ENTRY AND UNLAWFUL DETAINER very beginning because the defendant beginning, it only becomes illegal when
was able to enter possession by a demand is sent to him by the plaintiff
Forcible Entry and Unlawful Detainer cases are two kinds of accion interdictal meAns of threat, force, intimidation, for him to vacate the property but
together with accion publiciana and accion reivindicatoria. This 2 cases are within stealth and strategy (grounds) despite of the receipt of the demand
the exclusive jurisdiction of the first level courts and you file the case where as letter, the defendant refuses to vacate.
venue is concerned in the place where the property or any portion thereof is From then on, the possession of the
situated, these cases are governed by the rules on summary procedure. defendant is deemed illegal.

I told you that in forcible entry and unlawful detainer the only issue there is issue 2. You must alleged in your complaint 2. It is not required.
on physical possession although if there is any need for the court to consider the that the plaintiff was on prior physical
issue of ownership in order to resolve the issue of physical possession then the court possession of the subject property,
definitely is allowed to do so. That’s why if the issue is more or less my dear students absence of which can led to dismissal
on ownership and that is the meat of your case then definitely it is not proper for of the case, because it is an
you to file an action for forcible entry or unlawful detainer. It might be an accion indispensable requirement when filing
reivindicatoria or recovery of possession as the case may be but definitely forcible entry cases
not FE or UD cases, take note of that. 3. Demand is not required as the entry 3. Demand to pay and to vacate is
Q: That’s why you notice that even if another case for example is filed and that case is illegal from the very beginning. required (4)because you count the
would more or less involves questions of ownership, would that mean that will prescriptive period of one year to file an
Exception: if by meAns of stealth, unlawful detainer case from the receipt
prevent from further continuation of the case for FE and UD? demand to vacate is required. of last demand.

4. Gen Rule: Prescriptive period is 1
year from the date of actual entry by
the defendant.
Exception: when the entry is by meAns
of stealth, the count must began from
the demand to vacate upon learning of
the stealth.
(Note: In the two cases, If you did not
file it within the period of 1 year,
you’re remedy is now is either accion
publiciana or accion reivindicatoria )
Note: I repeat, in unlawful detainer cases, the demand should be “demand to pay
rentals and to vacate” or “demand to comply terms and conditions of the lease and
to vacate” because if it is only a demand to vacate or a demand to pay rentals or
(Exception: if the subsequent demand
letters were only reminders of the first
demand letter, then the count is from
the first demand letter.)
Exceptions to the rule that demand is
required:
 If the purpose is to terminate
the lease by reason of
expiration of term and not by
non-payment of rentals or he
failed to complied the terms and
conditions of lease.
 The purpose of suit is not for
ejectment but the enforcement
of the terms of the contract
 Defendant is not a tenant but a
mere intruder.
4. You count the prescriptive period of
one year to file an unlawful detainer
case from the receipt of last demand.
(Exception: if the subsequent demand
letters were only reminders of the first
demand letter, then the count is from
the first demand letter.)
demand to comply terms lang, that demand did not comply to the demand as set
forth by the rules and I’m 100 percent sure that you will lose the case.
In unlawful detainer cases, diba, more often than not, that it usually involves
possession by mere tolerance, ok. So if the possession is by mere tolerance, don’t
file forcible entry you file unlawful detainer but in several decisions of SC, it decided
that—if the ground for the unlawful detainer case is by possession by mere
tolerance, the plaintiff must prove that the tolerance was from the very beginning
because if the entry was first by meAns of threat, force, intimidation, stealth and
strategy tapos upon knowing that the plaintiff just allowed him to stay by tolerance
sorry your case for unlawful detainer will not prosper, what you should file instead
is forcible entry. Ok, please take note of that.
Oral demand is not sufficient, it must be in writing because if it is in oral, how will
you prove it at the court? And I forgot, in case of land, how many days? 15 days.
In case of building, 5. If more than, no problem however if it is less than 15 days or
5 days then you did not comply the rules.
Q: No problem? Ok. Can the defense of ownership and/or tenancy be raised by the
defendant in a case of forcible entry or unlawful detainer? Yes, he can raise it but
the question is—simply because the defendant raise the defense of, for example of
tenancy and ownership, will it automatically divest the court of its right to proceed
the hearing of Forcible entry or unlawful detainer?
A: No, I told you because the jurisdiction of the court is determined by the allegation
of the complaint and not by the Answer of the defendant. Except lang, where
tenancy is raised as a defense, the court is allowed to conduct a preliminary hearing
on the matter to determine the veracity of the allegation of tenancy. If during the
hearing daw, it is shown that tenancy is the real issue then the court shall dismiss
the case for lack of jurisdiction and the case should be filed instead in the
appropriate court which is the DARAB, but remember that in summary procedure,
motion to dismiss is a prohibited pleading, except diba if the ground is because the
court has no jurisdiction of the subject matter. This situation is within the exception
diba, because tenancy automatically meAns that your ground is anchored on the
ground of lack of jurisdiction, it should be in the DARAB diba.
When the defense of ownership is raised, like I said, it will not automatically divest
the court of its right to proceed the hearing of FE or UD however the court is allowed
to resolve the issue of ownership but only under the following conditions:
1. When the issue of possession cannot be resolved without resolving the issue
of ownership
 2. The issue of ownership shall be resolved only to determine the issue of
possession.
We presumed that the plaintiff win the case, defendant can appeal within 15 days
from the receipt of the judgement, question—diba in other cases if there is an appeal
it will stay the judgement, correct? Except lang if this is certiorari under rule 65
because to stay the judgement you have to get diba a writ of preliminary injunction
or temporary restraining order, in I repeat FE or UD cases, will an appeal
automatically stay the execution? NO. To stay the execution, the defendant has to
comply with the following:
1. You should first perfect an appeal;
2. File a supersedeas bond to pay for the rents, damages and costs accruing
down to the time of judgement based on the total amount as awarded in
the judgement. (but if the judgement of course did not award rents,
damages, and costs, there’s no need to post a supersedeas bond, only if
there’s an award that was granted);
3. While case is on appeal with the RTC, deposit periodically the adjudged
amount of rent due under the contract, if there’s no contract, the reasonable
value of the use and occupation of the premises (because if you fail to pay
even 1 month, it will be the basis of the plaintiff to file a motion for execution
even pending appeal.
Remember: Failure to comply the requisites will be the basis of the plaintiff to file a
motion for execution even pending appeal.
Q: Now, I ask you, the order of the RTC which affirmed the judgement of the lower
court, what is your remedy?
A: You go to CA by meAns of petition for review under rule 42 because this is a
judgement of the RTC in the exercise of its appelate jurisdiction.
Q: Would dependency of the petition of review before the CA stay the execution of
the judgement? You’ve been paying supersedeas bond, you’ve been paying rental
periodically, is this applied in the CA?
A: No. I told you, this is 1 of the cases that even if the petition is pending, the
decision can now be the subject of execution unless otherwise provided for by the
CA. The one I told you with the supersedeas bond and deposit periodically, it is only
applicable if it is from MTC to RTC, but not applicable if it is from RTC to CA.
Q: To whom the judgement of FE and UD bind? Will it only bind the persons
impleaded as the defendants, puydi ba? Can they be ejected?
A: As the general rule, No. Judgement is only binding upon persons who are actually
properly impleaded. Exceptions:
1. Sub-Lessee not unless there is prohibition;
2. Guests, successors-in-interests, members of the family of the lessee,
servants and employees;
3. Trespassers, squatters, agents of the defendant fraudulently occupying the
property to frustrate the judgement;
4. TrAnsferees pendent lite
By the way, very important, if the basis of your entry is contract of lease, diba, you
really have to send a demand letter to vacate to the lessee, because if there is none,
there is automatic implied new contract of lease which we called tacita recundocion.
This is under Article 1670 of Civil Code
Article 1670. If at the end of the contract the lessee should continue
enjoying the thing leased for fifteen days with the acquiescence of the
lessor, and unless a notice to the contrary by either party has previously
been given, it is understood that there is an implied new lease, not for the
period of the original contract, but for the time established in articles 1682
and 1687. The other terms of the original contract shall be revived.
xxx
Article 1682. The lease of a piece of rural land, when its duration has not
been fixed, is understood to have been for all the time necessary for the
gathering of the fruits which the whole estate leased may yield in one year,
or which it may yield once, although two or more years have to elapse for
the purpose.
xxx
Article 1687. If the period for the lease has not been fixed, it is understood
to be from year to year, if the rent agreed upon is annual; from month to
month, if it is monthly; from week to week, if the rent is weekly; and from
day to day, if the rent is to be paid daily. However, even though a monthly
rent is paid, and no period for the lease has been set, the courts may fix a
longer term for the lease after the lessee has occupied the premises for over
one year. If the rent is weekly, the courts may likewise determine a longer
 period after the lessee has been in possession for over six months. In case
of daily rent, the courts may also fix a longer period after the lessee has
stayed in the place for over one month.
RULE 71
CONTEMPT
The power to cite the person in contempt is inherent in the court. But not as far as
quasi-judicial agencies are concerned because in such cases the power to cite a
person in contempt depends on whether the law which created that particular quasi-
judicial agency grants them the power to cite one in contempt. Well it is the
disobedience to the court by acting in opposition to authority, justice and
dignity. That’s always the common definition of what is contempt of court. It
signifies not only a willful disregard or disobedience of the court’s order,
but also conduct tending to bring the authority of the court and the
administration of law into disrepute or, in some manner, to impede the
due administration of justice. That is the perfect definition of what is contempt
of court.
Contempt classification according to its nature
(1) Civil - The failure to do something ordered to be done by a court or judge for
the benefit of the opposing party therein.
(2) Criminal - Conduct directed against the authority and dignity of the court or a
judge acting judicially. It is an obstruction in the administration of justice which
tends to bring the court into disrepute or disrespect.
Although the distinction between criminal and civil contempt is so thin but,
nevertheless, you would see that there is one thing you should consider, and that is
civil contempt is always directed against a person. But if the contempt is directed
against the judiciary or the court itself, then automatically it becomes criminal
contempt. That is the major difference between the two.
Classification according to the manner of commission (more common classification)
(1) Direct - Misbehavior committed in the presence of or so near a judge
so as to obstruct the administration of justice.
(2) Indirect - One committed not in the presence or so near a judge so as
to obstruct the administration of justice.
Very important my dear students to know whether this is direct or indirect contempt
because the procedures on how to file the same and the appropriate
remedies would vary or differ depending on whether what is committed
is direct contempt or indirect contempt.
Unlike direct contempt where the court can immediately mete out the penalty, in
indirect contempt it cannot be done because there has to be a petition for indirect
contempt which is supposed to be filed against that person, EXCEPT HOWEVER IF
THE INDIRECT CONTEMPT PROCEEDS FROM AN ORDER OF THE COURT MOTU
PROPRIO. But even then, even if it is the court which actually files the indirect
contempt by meAns of issuing an order, the respondent is always given a chance to
Answer the allegations, unlike in direct contempt where automatically, as long as
you committed the contemptuous act in the presence of the judge, the judge
automatically can mete out the penalty.
Under our Rules, any of the following would constitute direct contempt (Sec. 1,
Rule 71):
(1) misbehavior in the presence of or so near a court as to obstruct or
interrupt the proceedings therein;
(2) any disrespect toward the court, which includes among others, if you
submit to the court pleadings which contain derogatory and
contemptuous languages;
(3) offensive personalities toward others;
(4) refusal to be sworn as a witness or to Answer as a witness, and refusal
to subscribe an affidavit or deposition when lawfully required to do so.
Procedural requisites
No formal proceeding is required in direct contempt, meaning it is summary in
nature. Because as long as you commit the contemptuous act before the court,
immediately the court can cite you in direct contempt and mete out the
corresponding penalty as provided for in the Rules. That’s why unlike in indirect
contempt, where there has to be formal proceedings, in direct contempt,
formal proceedings is not actually required.
Penalty for direct contempt
The penalty depends on which court is the direct contempt committed. If it is
committed before the RTC or any higher court, the penalty is a fine not
exceeding P2,000 or imprisonment not exceeding 10 days, or both. If the
direct contempt is committed before a first level court, the penalty is a fine not
exceeding P200 or imprisonment not exceeding 1 day, or both.
If the contempt consists in the refusal or omission to do an act which is
still within the power of the respondent to perform, the respondent may
be imprisoned by order of the court concerned until he performs that
particular act which is required of him to be performed.
Remedy
Any decision for direct contempt before the RTC or higher is not appealable
(Sec. 2, Rule 71). The remedy is a petition for certiorari or prohibition which
is directed against the court which cited the respondent in direct contempt. The best
is prohibition, so the court is not able to proceed with the penalty as mandated by
the Rules. If it is a first-level court, appealable to the RTC. But the execution of
judgment will not be suspended not until after he files a bond fixed by the
court.
For indirect contempt, it is appealable. First-level courts to the RTC, RTC to the
CA. The appeal will not have the effect of suspending the judgment, unless
and until the respondent files a bond fixed by the court.
Q: Let’s say this is before the RTC, so the respondent was cited in direct contempt
and thus filed a petition for prohibition before the CA, would that automatically mean
that simply because there is a pending petition for prohibition, that meting out the
penalty on the respondent shall be suspended?
A: Not necessarily. Not unless the respondent files a bond in an amount to be fixed
by the court. And the bond is conditioned upon his compliance of the
judgment should it be a judgment against him.
Acts which constitute indirect contempt (Sec. 3, Rule 71) are the following:
(1) Misbehavior committed not in the presence of or so near a judge so as
to obstruct the administration of justice; [The provision in Sec. 3, Rule 71,
however, states: “misbehavior of an officer of a court in the performance of his
official duties or in his official trAnsactions”]
(2) disobedience of or resistance to a lawful writ, process, order, or
judgment of a court;
(3) any abuse of or any unlawful interference with the processes or
proceedings of a court not constituting direct contempt;
(4) any improper conduct tending, directly or indirectly, to impede,
obstruct, or degrade the administration of justice;
(5) [assuming to be an attorney or an officer of a court, and acting as such without
authority;]
(6) failure to obey a subpoena duly served;
(7) [the rescue, or attempted rescue, of a person or property in the custody of an
officer by virtue of an order or process of a court held by him.]
*Those inside the brackets [] were not mentioned by sir during the lecture.
There was one decision of the SC that if the client dies while the case is pending,
the lawyer has the obligation to inform the court within 30 days from death about
the death of the client and in the notice of death filed, include the names of the
heirs who will substitute the party. If the lawyer failed to inform or notify the
court of the death of his client, said failure constitutes as indirect
contempt, without prejudice to further administrative liabilities as sanctioned by
the Rules.
As far as indirect contempt is concerned, Sec. 3 is very clear that one can only be
punished after a charge in writing and a hearing.
Requisites before one can be cited for indirect contempt:
(1) Charge in writing which has to be filed;
(2) An opportunity for the person charged to appear and explain his
conduct, and;
(3) The right to be heard by himself and/or counsel.
Two ways by which one can be sued for indirect contempt
(1) By filing a verified petition before the court, or
(2) By order or formal charge initiated by the court itself.
Example: If a subpoena was duly served on the witness for him to appear on a
particular date and he fails to do so without informing the court about his non-
appearance, the court will usually issue an order directing him to explain in
writing why he should not be cited for indirect contempt for delaying the
administration of justice. Take note that even if the contempt is initiated by an
 order of the court, the respondent is still given time within which to Answer the
charge or explain his side. He cannot be declared in indirect contempt
automatically, not unless he files his explanation in writing. If after receipt of
the explanation, the court finds his non-appearance is not justified, that’s the
time when an order is issued citing him in indirect contempt and the
corresponding penalty pursuant to Rule 71 is meted on the respondent.

If the indirect contempt arose out of the same case which is filed before the court,
it may be heard and decided together with the case upon which the indirect
contempt arose (this occurs more often in reality). It may also be heard and tried
separately.

Where it is filed
If the charge for indirect contempt has been committed before the RTC or a
court of equivalent or higher rank, or against an officer appointed by it, the
charge may be filed with such court. Where such contempt has been committed
against a first-level court, the charge may be filed in the RTC of the place in which
the lower court is siting; but the proceedings may also be instituted in such first-
level court subject to appeal to the RTC of such place (Sec. 5, Rule 71). If it is
committed against a quasi-judicial agency, the indirect contempt shall be filed in the
RTC of the place where the contempt has been committed (Sec. 12, Rule 71).

Punishment for indirect contempt

If the respondent is adjudged guilty of indirect contempt committed against the RTC
or a court of equivalent or higher rank, he may be punished by a fine not
exceeding P30,000 or imprisonment not exceeding 6 months, or both. If
he is adjudged guilty of contempt committed against a first-level court, he may
be punished by a fine not exceeding P5,000 or imprisonment not exceeding
1 month, or both. If the contempt consists in the violation of a writ of injunction,
TRO or status quo order, he may also be ordered to make complete restitution to
the party injured by such violation of the property involved or such amount as may
be alleged and proved (Sec. 7, Rule 71). If committed against a quasi-judicial
agency, the penalty depends upon the provision of the law which authorizes the
filing of indirect contempt against the respondent.