Under Rule 39 of Rules of Court.
or final order appealed from and serving a copy thereof
2. Execution
Judgement and orders become final and executory by
operation of law and not by judicial declaration. The
trial court need not even pronounce the finality of the
order as the same becomes final by operation of law.
Its finality becomes a fact when the reglementary
period for appeal lapses, and no appeal is perfected
within such period.
As a general rule, once a judgement has become final
and executory, a writ of execution shall be ordered by
the Court as it now becomes ministerial duty on the
part of trial court to issue such. However, even the
execution is a matter of right, the execution may stay
as to the exception to the rule. (I-NEED-U-VIP)
1. Where the judgement turns out to be
Incomplete or Conditional
2. Judgement is Novated by subsequent
agreements of the parties
3. Equitable grounds like a change in situation
of the parties which makes execution
inequitable (Supervening Facts Doctrine)
4. Execution is Enjoined (Petition for relief from
judgement or annulment of judgement with
TRO or writ of preliminary injunction
5. Judgement becomes Dormant, except support
which can be executed by motion
6. Execution is Unjust or Impossible.
7. Where the judgement has already been
executed by the Voluntary compliance thereof
the parties
8. When refusal to execute has become
Imperative in the higher interest of justice
9. When the execution is sought against
Property exempt from execution under sec. 13
Rule 39.
Execution shall issue on motion. Hence, a judge may
not order execution of judgement in the decision
itself. In fact, even in judgements which are
immediate and executory, there “must be a motion to
that effect and a hearing called for the purpose. And
also under the SC circular No. 24-94, a motion for
issuance of writ of execution must contain a notice to
the adverse party. Hence, the motion for execution
cannot be issued ex-parte.
4. & 7. It depends,
There are three modes of appealing a judgement or
final order of the RTC.
In a Petition for Review on Certiorari under Rule
45, the appeal raises purely question of law from a
judgement or final order or resolution of the RTC in its
original jurisdiction, the CA, the Sandigan Bayan, and
the CTA en banc.
In an Ordinary Appeal under Rule 41, the appeal
raises the questions of fact or mixed questions of fact
and law decided by the RTC in its original jurisdiction.
The Appeal to the CA in cases decided by the RTC in
its original jurisdiction shall be taken by filing a notice
of appeal with the court which rendered the judgement
upon the adverse party.
In Petition for Review under Rule 42, the appeal
raises questions of fact, of law, or mixed question of
fact and law from a judgement or final order of the RTC
in its appellate jurisdiction.
However, when the petitioner failed to move for new
trial, or appeal therefrom, or file petition for relief
against, or take other appropriate remedies assailing
the questioned judgement, final order or resolution, the
party may move for Annulment of judgement, final
order, or resolution under Rule 47 provided that NO
FAULT ATTRIBUTABLE to him.
5. A MOTION TO DISCHARE PRELIMINARY
ATTACHEMENT
After a writ of attachment has been enforced, the party
whose property has been attached, or the person
appearing on his behalf, may move for the discharge of
the attachment wholly or in part on the security given.
Under sec. 12 of Rule 57, there are two procedures in
discharging the PA.
First, if a writ of attachment has not yet been enforced,
the party whose property is sought to be attached may
prevent the attachment either (a)by depositing with the
court from which the writ was issue; or (b)by giving a
counterbond executed to attaching party, equal to the
bond fixed by the court in the order of attachment or
to the value of the property attached exclusive of cost.
No notice and hearing is required. Thus the writ of
attachment may by discharge ex parte
Second, of the attachment has already been enforced,
the party whose property has been attached, or the
person appearing on his behalf may discharge the
attachment by:
a. Filing a motion to discharge the attachment.
b. By Cash deposit with the court from which the
attachment is issued or executing a counter
bond in favour of the attaching part equal to
the amount fixed by the court in the order of
attachment, exclusive of the cost.
c. A notice of the depot shall forthwith be served
on the attaching party
d. The court shall, after due notice and hearing
order the discharge of the attachment.
Thus, in this procedure the mere posting of the
counterbond does not automatically discharge the writ
of attachment. It is only after due NOTICE and
HEARING, and after the judge has ordered the
discharge of attachment that the same is properly
discharge.
Attachment may likewise be discharge without the
need for filing a counter-bond. This is possible when
the party whose property has been attached files a
motion to set aside or discharge the attachment and
during the hearing the motion, he proves that:
1. The same was improperly or irregularly issued
or enforced (sec. 13) as where there is no
ground for attachment, or the affidavit and/or
 the bond filed therefore are defective or
insufficient (sec.3);
2. That the bond is insufficient
3. If the attachment is excessive, the discharge
shall be limited to the excess. (sec. 13)
4. Debtor has posted a Counter-bond or has
made the requisite cash deposit.
5. Property attached is Exempt from execution.
8. No, the case will not prosper.
Under the rules, certiorari under Rule 65 is the
appropriate remedy for the parties adversely affected of
any (TBO) tribunal, board, or officer exercising judicial
or quasi-judicial functions when such TBO has acted
S/E of its jurisdiction or with GAD amounting to L/E
of jurisdiction, there being no appeal or any other
plain, speedy and adequate remedy in ordinary course
of law. As a General Rule, a Motion for
Reconsideration/New trial is an essential precondition
for the filing of a petition for CPM. In the instant case,
there was no showing that the defendant has resorted
to application of Motion for Reconsideration before
going to the SC. Therefore, the case will not prosper.
However, this rule is not absolute, jurisprudence has
recognized several exceptions, in which certiorari may
lie even if the Motion for Reconsideration/New trial has
not pre-conditionally filed such as follows, to wit: (LP-
PeRUM-DICE)
1. Where the proceedings in the Lower court are
a nullity for lack of due process.
2. Where the order is a Patent nullity, as where
the court a qou has no jurisdiction.
3. Where the subject matter of the action is
Perishable.
4. Where the question Raised in the certiorari
proceeding have been duly raised and passed
upon by the lower court or are the same as
those raised and passed upon in the lower
court.
5. Where there is an Urgent necessity for the
resolution of the question.
6. When a Motion for reconsideration would be
useless
7. Where petitioner is Deprived of due process
8. Where the Issue raised is one purely of law
or where public interest is involved.
9. Where, in Criminal case, relief form an order
of arrest is urgent and the granting of such
relief by the trial court is improbable.
10. Where the proceeding was Ex parte or in
which the petitioner has no opportunity to
object.
Certiorari is a prerogative writ, it is never demandable
as a matter of right and never issued except in the
exercise of judicial discretion. He who seeks a writ of
certiorari must apply for it only in manner and strictly
in accordance with the provision of the law and the
Rules.
Requisites of certiorari
1. Respondent tribunal, board or officer is
exercising judicial and quasi-judicial function
2. Respondent acted without or excess of
jurisdiction, or with GAD amounting to
lack/excess of jurisdiction
3. There must be no appeal or other plain, speedy
and adequate remedy.
4. Accompanied by a certified true copy of the
judgement or order subject of the petition,
copies of all pleadings and documents relevant
and pertinent thereto, and sworn certificate of
non-forum shopping under rule 46.
As a general rule, an order denying a motion of dismiss
being merely interlocutory, cannot be the basis of a
petition for certiorari. The remedy of aggrieved party is
to file and answer and to interpose as defences the
objections raised in his motion to dismiss, proceed to
trail and in case of an adverse decision, to elevate the
entire case by appeal in due course. However, as
exception to the rule, since the issue is jurisdiction,
and orifical action for certiorari may be directed against
an interlocutory order of the lower court prior to an
appeal from the judgement. Thus, a petition for
certiorari may be filed to assail an interlocutory order,
if it issued without or excess of jurisdiction, or in GAD
amounting to lack/excess of jurisdiction.
9. The denial is not correct,
In Expropriation proceedings, the private owner is
deprived of property against his will.
Upon filing of the complaint, and after due notice to the
defendant, the implementing agency/plaintiff shall
have the right to take or enter upon the possession of
the real property involved upon as follows, to wit:
1. If the expropriator is a National Government,
with a scheme of immediate payment should
be 100% of the value of the property based on
the current relevant zonal valuation of the BIR
and the value of the improvements and/or
structures as determine under sec. 7 of RA.
8974
2. If the expropriator is a LGU, the payment
should be only 15% of the fair market value
based on the tax declaration required to be
deposited with the authorized government
depositary.
Once, the preliminary deposit has been made, the
expropriator is entitled to a writ of possession as a
matter of right, and the issuance of such writ becomes
ministerial on the part of the trial court.
In the case at bar, since the NGCP has paid 100% or
the total value of the property, it is now entitled to a
writ of possession as a matter of right. Hence, the court
cannot refuse the issuance of writ as now it is
ministerial duty to issue the writ.
In expropriation proceedings due process must be
strictly followed.
In expropriation, the private owner is deprived of
property against his will. Withal, the mandatory
requirement of due process ought to be strictly
followed, such that the State must show, at the
minimum, a genuine need, an exacting public purpose
to take private property, the purpose to be specifically
alleged or least reasonably deductible form the
complaint. (Vda. De Ouano vs. Republic, GR 168770
Feb. 9 2011, 642 SCRA 384)
10. It depends, whether the ground falls in the special
civil action of quo warranto or election protest.
If the basis is that the occupant is disqualified from
holding the office by reason of ineligibility or disloyalty
the proper remedy is the special civil action of quo
warranto, such denial of motion to dismiss qou
warranto is proper
However, if it challenges the right of a person to hold
office on the ground of regularities in the conduct of
elections for said office then Election protest will lie.
Note: where there is usurpation or intrusion into an
office, quo warranto is the proper remedy. But where
the respondent, without claiming any right to an office,
excludes the petitioner therefrom, the remedy Is
mandamus, not quo warranto.
11. the complaint of unlawful detainer with damages
will not prosper.
[ In unlawful detainer, if possession is through
tolerance, it should be alleged in the complaint that the
tolerance was from the beginning or that defendant
was able to hold possession of property because of
tolerance by the complainant.} “Where defendant’s
entry upon the land was with plaintiff’s tolerance right
from the date of fact of entry, unlawful detainer
proceedings maybe instituted within one (1) year from
the demand on him to vacate as there is an implied
promise on his part to vacate upon demand”
What could have been the proper remedy in this case
in an action for forcible entry. Action for forcible entry
is available to a person who was deprived of possession
of any land or building by (FISTS) force, intimidation,
strategy, threat, and stealth. As a general rule, the one-
year period is counted from the date of the entry or
taking of possession by use of force, intimidation,
threat, or strategy. However, as to exception, the one-
year period in case entry trough stealth should be
counted from the demand to vacate upon learning of
such entry.
12. Writ of Preliminary Injunction.
The injunctive writ is conditioned on the existence of a
clear and positive right of the applicant which should
be protected, the writ being strong arm of equity, and
extraordinary pre-emptory remedy which can be
availed of only upon the existence of well-defined
circumstances.
The requisites whether mandatory or prohibitory are
the following:
1. The applicant must have CLEAR and
UNMISTAKABLE RIGHT, that is right in esse.
2. There is MATERIAL and SUBSTANTIAL
INVASION of such right.
3. There is an URGENT NEED for the writ to
prevent irreparable injury to the applicant.
4. NO other SPEEDY AND ADEQUATE REMEDY
exist to prevent the infliction of irreparable
injury.
The issuance of writ of PI is addressed to the sound
discretion of the trial court, conditioned on the
existence of clear and positive right of the applicant
which should be protected. Moreover, extreme caution
must be observed in the exercise of such discretion. It
should be granted only when the court is fully satisfied
that the law permits it and the emergency demand it.
The very foundation of the jurisdiction to issue a writ
of injunction rest in the existence of a cause of action
and in the probability of reparable injury, inadequacy of
pecuniary compensation and the prevention of
multiplicity of suit.
Negative answer – where the fact are now show to bring
the case within these conditions, the relief of injection
should be refuse.
Requisites for the ISSUANCE of PI
1. There must be a verified application filed
before the court.
2. There must be a ground for issuance of the
writ which are the ff: (EnCOD)
a. Applicant is ENTITLED to the relief
demanded and the whole or part of such
relief consist in RESTRAINING the
commission or continuance of the act/acts
complained of, or in REQUIRING the
PERFORMANCE of acts with for limited
period or perpetually; or
b. COMMISSION, CONTINUANCE, or NON-
PERFORMANCE of the act complained of
would work injustice to the applicant; or
c. Party, court or agency or a person (DTAPS)
is doing, threatening, attempting to do so,
procuring or suffering to be done, some
act/acts probably in violation of the rights
of the applicant respecting the subject of
the action or proceedings.
3. The notice shall be preceded or
contemporaneously accompanied by service of
summons, together with a copy of the
complaint/initiatory pleading and applicant
affidavit and bond; except when instances
where prior and contemporaneously service of
summons is not required.
4. A Bond must be posted, unlss othwerise
excepted by the court.
5. The threatened injury must be incapable of
pecuniary estimation.
GROUNDS FOR OBJECTION TO, OR FOR THE
DISSOLUTION OF INJUNCTION OR RESTRAINING
ORDER
1) Upon showing of insufficiency of the application;
2) Other grounds upon affidavit of the party or person
enjoined;
3) Appears after hearing that irreparable damage to the
party or person enjoined will be caused while the
applicant can be fully compensated for such damages
as he may suffer, and the party enjoined files a
counterbond;
4) Insufficiency of the bond;
5) Insufficiency of the surety or sureties.
13.ANNULMENT OF JUDGEMENT, AND RESOLUTION
The party may move for Annulment of JFR under Rule
47 is only when the petioner failed to move for new
tiral, or appeal from, or file petiion for relief against, or
take other appropriate remedies assailing the
questioned JFR through NO FAULT ATTRIBUTABLE
to him
 The GR is that final and executory judgement can
no long be disturbed altered or modified in any
respect, and nothing further can be done but to
execute it. A final and executory decision may,
however be invalidated via Petition for relief (Rule
38) or a Petition for ANNULMENT of JFR under
Rule 47). Rule 47 of ROC is a remedy granted only
under exceptional circumstances where a party,
WITHOUT FAULT on his part, has failed to avail of
the ordinary remedies of New Trial, Appeal, petition
for relief or other appropriate remedies. The same
petition is not available as a substitute for a
remedy which was lost due to the party’s own
neglect in promptly availing the same. There’s here
no attempted substitution; annulment of
judgement is the only remedy available to the
petitioner. Requisite elements for the filing of a
Petition for Annulment of JFR are on the ground of
1. Extrinsic Fraud / Collateral Fraud; 2. Lack of
Jurisdiction over subject matter and over the person
and want of due process must be present.
1) Extrinsic Fraud – exists when there is a fraudulent
act committed by the prevailing party OUTSIDE the
trial of the case, whereby the defeated party was
prevented from presenting fully his side of the case by
FRAUD AND DECEPTION practiced on him by the
prevailing party.
2) Lack of Jurisdiction – refers to either lack of
jurisdiction over the person of the defendant or over
the subject matter of the claim.
14. The Court of Appeal is correct in dismissing the
petition.
It must be noted, that by virtue of A.M 05-11-07-CTA
(2005) of R.A 9282 or the Revised Rules of Tax Appeals,
as amended, Under Sec. 1, Rule 16 thereof, a party
adversely affected by a decision or ruling of the CTA en
banc may file with the Supreme Court a verified
petition for review on certiorari pursuant to Rule 45 of
the 1997 Civil Procedure. But, a party adversely
affected by resolution of a Division of CTA on a motion
for new trial or reconsideration, may file a petition for
review with the CTA en banc.
Petition for review under Rule 43 is available only for
cases decided by quasi-judicial bodies, the CTA being
excluded therefrom by virtue of RA 9282 which
elevated the rank of the CTA to the level of collegiate
court, making it co-equal body of CA.
Simple Answer:
A party adversely affected by resolution of a Division of
CTA on a motion for new trial or reconsideration, may
file a petition for review with the CTA en banc. However,
R.A 9282 Sec. 19, further provides that a party
adversely affected by a decision or ruling of the Court
of Tax Appeals (CTA) en banc may file with the
Supreme Court a verified petition for review on
certiorari pursuant to Rule 45 of the 1997 Civil
Procedure.
Petition for review under Rule 43 is available only for
cases decided by quasi-judicial bodies, the CTA being
excluded therefrom by virtue of RA 9282 which
elevated the rank of the CTA to the level of collegiate
court.
Supplemental Info: Sec. 9(3) of B.P 129 enumerated the
cases for exclusive appellate jurisdiction of CA – waray
CTA.
Requirements for the issuance of the order of
attachment. No. 9 in the Final Exam of 4th year. It
depends,
If the affidavit executed by Juan Alleges the following.
a. That there is sufficient of cause of action.
b. That the case is one of those mentioned in
Sectioned 1 of Rule 57 of Revised Rules of
Court
c. That there is no other security for the claim
sought to be enforced by the plaintiff.
d. That the amount due to the applicant, or the
value of the property the possession of which
he is entitled to recover, is as much as the sum
for which the order is granted above all legal
counterclaims; and
e. The affidavit, and the bond required by this
rule must be duly filed with the court before
the order issues.
The affidavit must contain all the allegations
required, failure to do so renders the writ totally
defective as the judge issuing it acts in excess of
jurisdiction (K.O. Glass Construction Co. vs.
Valenzuela)
Memorize Section 1 of Rule 57 (Grounds of Issuing
PA)
Meaning of “Compensable taking”
The taking of private property for public use, to be
compensable, need not be an actual physical taking or
appropriate. Compensable taking includes
destruction, restriction, diminution, or
interruption of the rights of ownership or of the
common and necessary use and enjoyment of the
property in a lawful manner, lessening or
destroying its value. It is neither necessary that the
owner be wholly deprived of the use of his property, nor
material whether the property is removed from the
possession of the owner, or in any respect changes
hands. (National Power Corp. vs. Heirs of Macabangkit
Sangkay, GR 165828, Aug. 24, 2011).