Provisional remedies & special civil actions
Reviewer
PROVISIONAL REMEDIES – resorted to by litigants for the
specific purpose of preserving or protecting their rights or
interests during the pendency of the principal action.
WHEN WRIT OF PRELIMINARY ATTACHMENT MAY ISSUE
RULE 57
PRELIMINARY ATTACHMENT
Section 1. Grounds upon which attachment may issue.
At the commencement of the action or at any time before
entry of judgment, a plaintiff or any proper party may
have the property of the adverse party attached as
security for the satisfaction of any judgment that may be
recovered in the following cases:
(a) In an action for the recovery of a specified amount of
money or damages, other than moral and exemplary, 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 which intent to
defraud his creditors;
(b) 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 other person in a fiduciary
capacity, or for a willful violation of duty;
(c) In an action to recover the possession of property
unjustly or fraudulently taken, detained or converted,
when the property, or any part thereof, has been
concealed, removed, or disposed of to prevent its being
found or taken by the applicant or an authorized person;
(d) In an action against a party who has been guilty of a
fraud in contracting the debt or incurring the obligation
upon which the action is brought, or in the performance
thereof;
(e) In an action against a party who has removed or
disposed of his property, or is about to do so, with intent
to defraud his creditors; or
(f) In an action against a party who does not reside and is
not found in the Philippines, or on whom summons may
be served by publication.
PRELIMINARY ATTACHMENT – provisional remedy by which
the plaintiff or other party may, at the commencement of
an action or any time thereafter, have the property of
the defendant taken into custody of the court as security
for the satisfaction of the judgment that the plaintiff may
recover.
PURPOSE
To secure a contingent lien on the defendant’s property
until the plaintiff can apply such property to satisfy the
judgment obtained in his favor.
WHO MAY APPLY
Plaintiff or any proper party (also a defendant who sets
up a counterclaim).
WHEN
A. AT THE COMMENCEMENT OF THE ACTION
*before summons is served ! therefore, EX
PARTE. (so the other party may not abscond or
dispose of his property).
**court may decide to hold a hearing (Sec. 2)
B. ANYTIME BEFORE ENTRY OF JUDGMENT
By: RJ MARTINEZ
1 III – LLB, EH404, USC – College of Law
*after entry of judgment – writ of execution may
already be issued.
a) 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 which intent to defraud his creditors;
- That defendant is about to depart from the
Philippines with intent to defraud his creditors.
- Claim for damages must be liquidated and not
contingent.
b) 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 other
person in a fiduciary capacity, or for a willful
violation of duty;
i.e. officer of a corporation/partner
misappropriates funds for his personal use.
*allegations should be substantiated and be
based on concrete and specific grounds (if in
general terms – adverse party should be given
an opportunity to ventilate their side).
c) In an action to recover the possession of property
unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof,
has been concealed, removed, or disposed of to
prevent its being found or taken by the applicant or
an authorized person;
- Refers to both personal and real properties
unjustly or fraudulently taken, detained, or
converted.
- Distinguished from Replevin: here one seeks to
attach to secure satisfaction of any judgment.
d) In an action against a party who has been guilty of
a fraud in contracting the debt or incurring the
obligation upon which the action is brought, or in
the performance thereof;
- This applies to issuance of bouncing checks as
payment for indebtedness.
- Fraud = if debtor had a preconceived plan or
intention not to pay (fraudulent intent cannot
be inferred merely from the inability to pay or to
comply).
e) In an action against a party who has removed or
disposed of his property, or is about to do so, with
intent to defraud his creditors; or
- Not just mere removal ! must be with intent to
defraud the creditors.
- Hearing on the issue of fraudulent disposal is
NECESSARY ! giving defendant opportunity to
prove that he is not disposing to defraud
creditors.
f) In an action against a party who does not reside
and is not found in the Philippines, or on whom
summons may be served by publication.
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer
- Defendants covered under this item:
a. Non-resident defendants not found in the
Philippines.
b. Resident defendants whose identity or
whereabouts are unknown and cannot be
ascertained by diligent inquiry.
c. Resident defendants who are temporarily
out of the Philippines.
Item F is not applicable to foreign corporations duly
licensed to do business in the Philippines ! less mobile
than individuals.
LIEN CREATED
In the nature of a proceeding IN REM (against a
particular property).
- Specific lien is acquired upon the property by the
attaching creditor.
- Attachment lien continues after the rendition of
the judgment until the debt is paid or sale is had
under execution or until judgment is satisfied or
the attachment discharged or vacated in some
manner provided by law.
*priority of the attachment in point of tie gives superior
right.
*between a vendee who had previously bought the
property but failed to register his deed of sale and an
attaching creditor who registers his order of attachment
and sale of the property to him ! ATTACHING CREDITOR
HAS ACQUIRED A VALID TITLE.
Sec. 2. Issuance and contents of order.
An order of attachment may be issued either ex parte or
upon motion with notice and hearing by the court in
which the action is pending, or by the Court of Appeals or
the Supreme Court, and must require the sheriff of the
court to attach so much of the property in the Philippines
of the party against whom it is issued, not exempt from
execution, as may be sufficient to satisfy the applicant's
demand, unless such party makes deposit or gives a bond
as hereinafter provided in an amount equal to that fixed
in the order, which may be the amount sufficient to
satisfy the applicant's demand or the value of the
property to be attached as stated by the applicant,
exclusive of costs. Several writs may be issued at the
same time to the sheriffs of the courts of different judicial
regions.
ORDER OF ATTACHMENT MAY BE ISSUED BY:
a. MTC where action is pending
b. RTC where action is pending
c. CA
d. SC
*EX PARTE or UPON MOTION.
The sheriff is required only to attach so much of the
property in the Philippines not exempt from execution as
may be sufficient to satisfy the applicant’s demand
(amount is stated in the order).
Sec. 3. Affidavit and bond required.
An order of attachment shall be granted only when it
appears by the affidavit of the applicant, or of some other
person who personally knows the facts, that a sufficient
By: RJ MARTINEZ
2 III – LLB, EH404, USC – College of Law
cause of action exists, that the case is one of those
mentioned in section 1 hereof, that there is no other
sufficient security for the claim sought to be enforced by
the action, and that the amount due to the applicant, or
the value of the property the possession of which he is
entitled to recover, is as much as the sum for which the
order is granted above all legal counterclaims. The
affidavit, and the bond required by the next succeeding
section, must be duly filed with the court before the order
issues.
REQUIREMENTS BEFORE ISSUANCE OF ORDER
1. AFFIDAVIT, which contains/states:
a. Sufficient cause of action exists
b. The case in one of those mentioned in Sec. 1
c. There is no other sufficient security for the
claim sought to be enforced
d. The amount due or the value of the property
is as much as the sum for which the order is
granted, above all legal counterclaims
*affidavit must be made by the plaintiff
himself or a person who personally knows the
facts.
*sufficiency or insufficiency is determined by
the court (may require the presentation of
evidence).
**there is sufficient compliance when in the
absence of an affidavit, the required
allegations are contained in a verified
complaint.
**attachment may issue in an action for
foreclosure ! upon proper showing that the
value of the mortgaged property is insufficient
to cover debt.
2. BOND (See next Section)
Sec. 4. Condition of applicant's bond.
The party applying for the order must thereafter give a
bond executed to the adverse party in the amount fixed by
the court in its order granting the issuance of the writ,
conditioned that the latter will pay all the costs which
may be adjudged to the adverse party and all damages
which he may sustain by reason of the attachment, if the
court shall finally adjudged that hte applicant was not
entitled there to.
APPLICANT’s BOND
AMOUNT – equal to the applicant’s demand or to the
value of the property to be attached.
ANSWERABLE for:
a. All COSTS which may be adjudged to the adverse
party
b. All the DAMAGES which the adverse party may
sustain by reason of the attachment (if court shall
adjudge the applicant not entitled).
*if BOND INSUFFICIENT ! property of the attaching
party not exempt from execution could be levied on
execution.
*when plaintiff moves to DISMISS THE ACTION the court
can hear PROOF OF DAMAGE to the defendant for
wrongful attachment.
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer
*damages bond may answer for: actual, temperate,
nominal, and exemplary (where attachment is
established to be maliciously sued out).
Sec. 5. Manner of attaching property.
The sheriff enforcing the writ shall without delay and
with all reasonable diligence attach, to await judgment
and execution in the action, only so much of the property
in the Philippines of the party against whom the writ is
issued, not exempt from execution, as may be sufficient
to satisfy the applicant's demand, unless the former
makes a deposit with the court from which the writ is
issued, or gives a counterbond executed to the applicant,
in an amount equal to the bond fixed by the court in the
order of attachment or to the value of the property to be
attached, exclusive of costs. No levy on attachment
pursuant to the writ issued under section 2 hereof shall
be enforced unless it is preceded, or contemporaneously
accompanied, by service of summons, together with a
copy of the complaint, the application for attachment, the
applicant's affidavit and bond, and the order and writ of
attachment, on the defendant within the Philippines.
The requirement of prior or contemporaneous service of
summons shall not apply where the summons could not
be served personally or by substituted service despite
diligent efforts, or the defendant is a resident of the
Philippines temporarily absent therefrom, or the
defendant is a non-resident of the Philippines, or the
action is one in rem or quasi in rem.
TO PREVENT SHERIFF FROM LEVYING ON ATTACHMENT
Adverse party should
1. Make a deposit with the court which issued the writ
2. Give a counter-bond executed to the applicant in
an amount equal to that fixed in the order of
attachment or to the value of the property to be
attached id the value is less than the amount of the
demand (exclusive of costs).
PURPOSE ! securing the payment of any judgment ifo
the attaching party.
GR: levy on attachment shall not be enforced unless
there has been a prior or contemporaneous service of
the summons together with:
a. a copy of the complaint
b. the application for attachment
c. the applicant’s affidavit and bond, and
d. The order and writ of attachment.
**applies only to defendants within the Phils.
EXC:
a) Where summons could not be served
personally or by substituted service despite
diligent efforts
b) The defendant is a resident of the Phils.
temporarily absent therefrom
c) Defendant is a non-resident of the Phils.
d) Action is one in rem or quasi in rem.
**irregularities cannot be cured by subsequent service of
summons (writ of attachment will have to be re-served
and re-implemented all over again after the service of
the summons).
By: RJ MARTINEZ
3 III – LLB, EH404, USC – College of Law
Defendant may point out to sheriff property to be
attached.
PROPERTIES EXEMPT FROM EXECUTION CANNOT BE
ATTACHED.
Sec. 13. Property exempt from execution.
Except as otherwise expressly provided by law, the
following property, and no other, shall be exempt
from execution:
(a) The judgment obligor's family home as provided
by law, or the homestead in which he resides, and
land necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by
him in hs trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or
other beasts of burden such as the judgment obligor
may select necessarily used by him in his ordinary
occupation;
(d) His necessary clothing and articles for ordinary
personal use, excluding jewelry;
(e) Household furniture and utensils necessary for
housekeeping, and used for that purpose by the
judgment obligor and his family, such as the
judgment obligor may select, of a value not exceeding
one hundred thousand pesos;
(f) Provisions for individual or family use sufficient
for four months;
(g) The professional libraries and equipment of
judges, lawyers, physicians, pharmacists, dentists,
engineers, surveyors, clergymen, teachers, and other
professionals, not exceeding three hundred thousand
pesos in value;
(h) One fishing boat and accessories not exceeding the
total value of one hundred thousand pesos owned by a
fisherman and by the lawful use of which he earns his
livelihood;
(i) So much of the salaries, wages, or earnings of the
judgment obligor of his personal services within the
four months preceding the levy as are necessary for
the support of his family;
(j) Lettered gravestones;
(k) Monies benefits, privileges, or annuities accruing
or in any manner growing out of any life insurance;
(l) The right to receive legal support, or money or
property obtained as such support, or any pension or
gratuity from the Government;
(m) Properties specially exempt by law.
But no article or species of property mentioned in his
section shall be exempt from execution issued upon a
judgment recovered for its price or upon a judgment
of foreclosure of a mortgage thereon.
ALSO EXEMPT ARE:
a. Properties whose title is not in the name of the
defendant (unless it is shown that he has
beneficial interest)
b. Foreign currency deposits (from foreign lenders
and investors, not from transients or tourists)
c. Smuggled goods ordered seized by BOC.
Sec. 6. Sheriff's return.
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer

After enforcing the writ, the sheriff must likewise without
delay make a return thereon to the court from which the
writ issued, with a full statement of his proceedings
under the writ and a complete inventory of the property
attached, together with any counter-bond given by the
party against whom attachment is issued, and serve
copies thereof on the applicant.
RETURN – submitted to the court which issued the writ
(applicant is likewise furnished a copy).
Shall contain:
1. Full statement of his proceedings under the writ
2. Complete inventory of the property attached
3. Any counter-bond given by the adverse party.
belonging to said party, are attached in pursuance of such
writ;
(e) The interest of the party whom attachment is issued in
property belonging to the estate of the decedent, wether
as heir, legatee, or devisee, by serving the executor or
administrator or other personal representative of the
decedent with a copy of the writ and notice that said
interest is attached. A copy of said writ of attachment and
of said notice shall also be filed in the office of the clerk of
the court in which said estate is being settled and served
upon the heir, legatee or devisee concerned.
If the property sought to be attached is in custodia legis, a
copy of the writ of attachment shall be filed with the
proper court or quasi-judicial agency, and notice of the
attachment served upon the custodian of such property.

Sec. 7. Attachment of real and personal property; WHAT CONSTITUTES VALID LEVY ON ATTACHMENT
recording thereof.
REAL PROPERTY Should be duly recorded in the
Real and personal property shall be attached by the
sheriff executing the writ in the following manner: Registry of Property
(a) Real property, or growing crops thereon, or any Should contain a reference to the
interest therein, standing uponthe record of the registry number of its certificate of title and
of deed of the province in the name of the party against the volume and page in the registry
whom attachment is issued, or not appearing at all upon book where the certificate is
such records, or belonging to the party against whom registered.
attachment is issued and held by any other person, or
standing on the records of the registry of deeds in the
name of any other person, by filing with the registry of If land unregistered – notice should
deeds a copy of the order, together with a description of be registered under Act 3344.
the property attached, and a notice that it is attached, or PERSONAL Sheriff must take actual possession of
that such real property and any interest therein held by PROPERTY the property attached as far as
or standing in the name of such other person are practicable.
attached, and by leaving a copy of such order,
Property must be in his substantial
description, and notice with the occupant of the property,
if any, or with such other person or his agent if found presence and possession adverse an
within the province. Where the property has been exclusive of the attachment debtor.
brought under the operation of either the Land SHARES OF Situs – for purposes of attachment is
Registration Act or the Property Registration Decree, the STOCK the jurisdiction where the corporation
notice shall contain a reference to the number of the is created.
certificate of title, the volume and page in the registration
DEBTS AND Garnishment – a species of
book where the certificate is registered, and the
registered owner or owners thereof. CREDITS AND attachment for reaching any
The registrar of deed must index attachments filed under OTHER PERSONAL property pertaining to the judgment
this section in the names of the applicant, the adverse PROPERTY NOT debtor and owing to him from a
party, or the person by whom the property is held or in CAPABLE OF stranger to the litigation.
whose name it stands in the records. If the attachment is MANUAL Debt – some definite amount of
not claimed on the entire area of the land covered by the DELIVERY money, ascertained, or capable of
certificate of title, a description sufficiently accurate for
being ascertained, which may be
the identification of the land or interest to be affected
shall be included in the registration of such attachment; paid over to the sheriff or the court
(b) Personal property capable of manual delivery, by under an order.
taking and safely keeping it in his custody, after issuing Credits & Personal Property –
the corresponding receipt therefor; something belonging to the
(c) Stocks or shares, or an interest in stocks or shares, of defendant, but in possession and
any corporation or company, by leaving with the under the control of the garnishee.
president or managing agent thereof, a copy of the writ,
and a notice stating that the stock or interest of the party
against whom the attachment is issued is attached in Property in custodial egis may be
pursuance of such writ; garnished.
(d) Debts and credits, including bank deposits, financial
interest, royalties, commissions, and other personal As to salary – only the salary due the
property not capable of manual delivery, by leaving with judgment debtor is subject to
the person owing such debts, or having in his possession attachment and execution and must
or under his control, such credits or other personal
not be necessary for the support of
property, or with his agent, a copy of the writ, and notice
that the debts owing by him to the party against whom his family.
attachment is issued, and the credits and other personal *salary due – where payment is at the
property in his possession, or under his control, end of the month – cannot be
attached before the end of the

By: RJ MARTINEZ Based on Feria & Noche Book

4 III – LLB, EH404, USC – College of Law
 Provisional remedies & special civil actions
Reviewer
month in which it is to be earned.
*so much of the earnings of the
judgment obligor for his personal
services within 4 mos. preceding the
levy as are necessary for the support
of his family – EXEMPT.
INTEREST IN THE
ESTATE OF A
DECEDENT
Sec. 8. Effect of attachment of debts, credits and all other
similar personal property.
All persons having in their possession or under their
control any credits or other similar personal property
belonging to the party against whom attachment is
issued, or owing any debts to him, at the time of service
upon them of the copy of the writ of attachment and
notice as provided in the last preceding section, shall be
liable to the applicant for the amount of such credits,
debts or other similar personal property, until the
attachment is discharged, or any judgment recovered by
him is satisfied, unless such property is delivered or
transferred, or such debts are paid, to the clerk, sheriff,
or other proper officer of the court issuing the
attachment.
Garnishee is not liable if judicially compelled to pay the
garnished amount to the debtor in the principal action.
Judgment creditor may bring action against the
garnishee ! if the latter fraudulently disposes of the
property in his hands after having been notified of its
attachment, may be sued by the plaintiff for the value of
the property.
Sec. 9. Effect of attachment of interest in property
belonging to the estate of a decedent.
The attachment of the interest of an heir, legatee, or
devisee in the property belonging to the estate of a
decedent shall not impair the power of the executor,
administrator, or other personal representative of the
decedent over such property for the purpose of
administration.
Such personal representative, however, shall report the
attachment to the court when any petition for
distribution is filed, and in the order made upon such
petition, distribution may be awarded to such heir,
legatee, or devisee, but the property attached shall be
ordered delivered to the sheriff making the levy, subject
to the claim of such heir, legatee, or devisee, or any
person claiming under him.
Sec. 10. Examination of party whose property is attached
and persons indebted to him or controlling his property;
delivery of property to sheriff.
Any person owing debts to the party whose property is
attached or having in his possession or under his control
any credit or other personal property belonging to such
party, may be required to attend before the court in
which the action is pending, or before a commissioner
appointed by the court, and be examine on oath
respecting the same. The party whose property is
attached may also be required to attend for the purpose
of giving information respecting his property, and may be
By: RJ MARTINEZ
5 III – LLB, EH404, USC – College of Law
examined on oath. The court may, after such
examination, order personal property capable of manual
delivery belonging to him, in the possession of the person
so required to attend before the court, to be delivered to
the clerk of the court or sheriff on such terms as may be
just, having reference to any lien thereon or claim against
the same, to await the judgment in the action.
PROCEDURE IF GARNISHEE DENIES INDEBTEDNESS
" He may be required to attend before the court
where action is pending to be examined under
oath.
" Court cannot compel him to pay or deliver the
property upon his denial of the debt or claim of
the property – controversy must be determined
by separate action.
Sec. 11. When attached property may be sold after levy on
attachment and before entry of judgment.
Whenever it shall be made to appear to the court in which
the action is pending, upon hearing with notice to both
parties, that the party attached is perishable, or that the
interests of all the parties to the action will be will be
subserved by the sale thereof, the court may order such
property to be sold at public auction in such manner as it
may direct, and the proceeds of such sale to be deposited
in court to abide the judgment in the action.
SALE after levy but BEFORE ENTRY of judgment (upon
hearing and notice to the parties)
1. When property is PERISHABLE
2. INTERESTS of the parties will be SUBSERVED by the
sale thereof.
*proceeds shall be deposited in court !paid to the
judgment obligee AFTER ENTRY of judgment (excess
returned to the judgment obligor).
Sec. 12. Discharge of attachment upon giving
counterbond.
After a writ of attachment has been enforced, the party
whose property has been attached, or the person
appearing on his behalf, may move for the discharge of
the attachment wholly or in part on the security given.
The court shall, after due notice and hearing, order the
discharge of the attachment if the movant makes a cash
deposit, or files a counter-bond executed to the attaching
party with the clerk of the court where the application is
made, in an amount equal to that fixed by the court in the
order of attachment, exclusive of costs. But if the
attachment is sought to be discharged with respect to a
particular property, the counter-bond shall be equal to
the value of that property as determined by the court. In
either case, the cash deposit or the counter-bond shall
secure the payment of any judgment that the attaching
party may recover in the action. A notice of the deposit
shall forth with be served on the attaching party. Upon
the discharge of an attachment in accordance with the
provisions of this section, the property attached, or the
proceeds of any sale thereof, shall be delivered to the
party making the deposit or giving the counter-bond, or
to the person appearing on his behalf, the deposit or
counter-bond aforesaid standing in place of the property
so released. Should such counter-bond for any reason to
be found to be or become insufficient, and the party
furnishing the same fail to file an additional counter-
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer
bond, the attaching party may apply for a new order of
attachment.
HOW DISCHARGE OF ATTACHMENT MAY BE MADE
1. Upon the MOTION of the party whose property has
been attached OR person appearing on his behalf.
2. After due NOTICE and HEARING
3. Order may be issued to discharge if movant:
i. Make CASH DEPOSIT
ii. Files a COUNTER-BOND in an amount equal to
that fixed by the court (exclusive of costs).
*TOTAL DISCHARGE of the attachment if a cash deposit is
made or a proper counter-bond is filed equal to the
demand of the applicant.
*PARTIAL DISCHARGE – discharge sought is with respect to
a particular property and the amount of the cash deposit
or counter-bond filed only equal to the value of property
(not demand of applicant).
EFFECT OF DISCHARGE
Property is released and becomes free and no longer
liable to the results of the proceedings in which it was
attached.
*but the liability on the attachment bond subsists and
continues to be in force despite the discharge of the
attachment by the filing of the counter-bond.
! bond shall be discharged when court shall finally
adjudge that the attaching creditor was not entitled
to the issuance of the attachment in the 1st place.
*if found to be insufficient ! party who files the counter-
bond is required to furnish an additional counter-bond – if
he does not so furnish, attaching party may apply for a
new order of attachment.
Sec. 13. Discharge of attachment on other grounds.
The party whose property has been ordered attached may
file a motion with the court in which the action is
pending, before or after levy or even after the release of
the attached property, for an order to set aside or
discharged the attachment on the ground that the same
was improperly or irregularly issued or enforced, or that
the bond is insufficient. If the attachment is excessive,
the discharge shall be limited to the excess. If the motion
be made on affidavits on the part of the movant but not
otherwise, the attaching party may oppose the motion by
counter-affidavits or other evidence in addition to that on
which the attachment was made. After due notice and
hearing, the court shall order the setting aside or the
corresponding discharge of the attachment if it appears
that it was improperly or irregularly issued or enforced,
or that the bond is insufficient, or that the attachment is
excessive, and the defect is not cured forthwith.
OTHER GROUNDS FOR THE DISCHARGE OF ATTACHMENT
a. Improper or irregular issuance of order of
attachment
b. Improper or irregular enforcement of the writ of
attachment
c. Insufficiency of the bond
d. Excessive attachment
MOTION TO LIFT ATTACHMENT on the above grounds may
be filed/resorted to;
By: RJ MARTINEZ
6 III – LLB, EH404, USC – College of Law
a. Before levy
b. After levy
c. Even before the property has been released from a
levy on attachment through the cash deposit or
counter-bond.
If attachment writ was issued ex parte ! motion to
discharge the attachment (Certiorari is premature, there
being an adequate remedy in law still available).
*merits of the main action may not be tried in a
motion to discharge.
++where cause of action in the main case is the same
ground upon which attachment was issued ! no
hearing on the motion to discharge before the issues
are joined in the main action.
i.e. action for money or property embezzled (fraud is
the ground for issuance of writ and at the same time
the cause of action in the main case).
**defendant can make a cash deposit or file a
counter-bond to discharge the attachment.
WHEN ATTACHMENT IS IMPROPERLY ISSUED
a. The complaint states no cause of action
b. The attaching creditor fails to prove the ground on
which the attachment is based (during hearing).
c. The allegations of the complaint have been
deceptively framed.
d. Plaintiff’s affidavit and bond are not in accordance
with Sec. 3 and 4.
*any of these may be a valid ground for the discharge of
the writ when allegations refer to or attack the very
circumstances attending the issuance of the writ.
OTHER CASES OF DISSOLUTION OF ATTACHMENT
1. Under insolvency law (Sec. 32, Act 1956)
2. The dismissal of an action upon which a writ of
attachment has been issued has the effect of
dissolving the attachment.
*if order of dismissal is not final (or before its finality) and
the case is reinstated ! attachment remains in force.
Sec. 14. Proceedings where property claimed by third
person.
If the property attached is claimed by any person other
than the party against whom attachment had been issued
or his agent, and such person makes an affidavit of his
title thereto, or right to the possession thereof, stating
the grounds of such right or title, and serves such
affidavit upon the sheriff while the latter has possession
of the attached party, and a copy thereof upon the
attaching party, the sheriff shall not be bound to keep the
property under attachment, unless the attaching party or
his agent, on demand of the sheriff, shall file a bond
approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property
levied upon. In case of disagreement as to such value, the
same shall be decided by the court issuing the writ of
attachment. No claim for damages for the taking or
keeping of the property may be enforced against the bond
unless the action therefor is filed within one hundred
twenty (120) days from the date of the filing of the bond.
The sheriff shall not be liable for damages for the taking
or keeping of such property, to any such third-party
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer
claimant, if such bond shall be filed. Nothing herein
contained such prevent such claimant or any third
person from vindicating his claim to the property, or
prevent the attaching party from claiming damages
against a third-party claimant who filed a frivolous or
plainly spurious claim, in the same or a separate action.
When the writ of attachment is issued in favor of the
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
required, and in case the sheriff is sued for damages as a
result of the attachment, he shall be represented by the
Solicitor General, and if held liable therefor, the actual
damages adjudged by the court shall be paid by the
National Treasurer out of the funds to be appropriated
for the purpose.
WHERE PROPERTY ATTACHED IS CLAIMED BY 3RD PERSON
1. 3rd person makes an AFFIDAVIT of his title to the
property claimed or right to possession thereof,
stating the grounds of such right or title.
2. 3rd party claimant SERVES such affidavit upon the
SHERIFF while the latter has possession and a
copy thereof to the ATTACHING PARTY.
To KEEP the PROPERTY under ATTACHMENT !
attaching party or his agent, on demand of the
sheriff, FILES A BOND approved by the court in a
sum not less than the value of the property levied
upon in order to indemnify the 3rd party claimant.
*otherwise, sheriff not obligated to keep property
under attachment.
Purpose of Bond – to answer for damages
suffered by the 3rd party claimant for the
taking or keeping of the attached property.
*claim for damages against the bond must be
filed within 120D from the date of the filing of
the bond.
If ATTACHING PARTY is the REPUBLIC or any
OFFICER duly representing it:
Filing of a bond shall not be required
If sheriff is sued for damages as a result of the
attachment ifo RP ! to be represented by the
OSG ! if held LIABLE, damages adjudged by the
court shall be paid out of the funds appropriated
for the purpose by the NATIONAL TREASURER.
3rd party claim must be filed with the sheriff while the
latter is still in possession of the property levied upon.
3rd party claimant may vindicate his claim to the
attached property (or attaching party may claim for
damages against the 3rd party complainant) ! in the
SAME or SEPARATE action.
Sec. 15. Satisfaction of judgment out of property
attached; return of sheriff.
If judgment be recovered by the attaching party and
execution issue thereon, the sheriff may cause the
judgment to be satisfied out of the property attached, if it
be sufficient for that purpose in the following manner:
(a) By paying to the judgment obligee the proceeds of all
sales of perishable or other property sold in pursuance of
By: RJ MARTINEZ
7 III – LLB, EH404, USC – College of Law
the order of the court, or so much as shall be necessary to
satisfy the judgment;
(b) If any balance remains due, by selling so much of the
property, real or personal, as may be necessary to satisfy
the balance, if enough for that purpose remain in the
sheriff's hands, or in those of the clerk of the court;
(c) By collecting from all persons having in their
possession credits belonging to the judgment obligor, or
owing debts to the latter at the time of the attachment of
such credits or debts, the amount of such credits and
debts as determine by the court in the action, and stated
in the judgment, and paying the proceeds of such
collection over to the judgment obligee.
The sheriff shall forthwith make a return in writing to the
court of his proceedings under this section and furnish
the parties with copies thereof.
Paying the judgment obligee the proceed of all sales of
perishable or other property sold
Selling so much of the property as may be necessary tp
satisfy the balance
By collecting from all persons having in their possession
credits belonging to the judgment obligor, or owing debts
to the latter at the time of the attachment of such credits
or debts.
Sheriff should furnish return to the:
1. Court
2. Parties
Sec. 16. Balance due collected upon an execution; excess
delivered to judgment obligor.
After realizing upon all the property attached, including
the proceed of any debts or credits collected, and
applying the proceeds to the satisfaction of the judgment,
less the expenses of proceedings upon the judgment, any
balance shall remain due, the sheriff must proceed to
collect such balance as upon ordinary execution.
Whenever the judgment shall have been paid, the sheriff,
upon reasonable demand, must return to the judgment
obligor the attached property remaining in his hands,
and any proceeds of the sale of the property attached not
applied to the judgment.
If attached property (including debts or credits
collected) is not sufficient ! sheriff must proceed to
collect any balance on the judgment that remains due
as upon ordinary execution.
If MORE ! upon reasonable demand, the sheriff must
return it to the judgment obligor.
Sec. 17. Recovery upon the counter-bond.
When the judgment has become executory, the surety or
sureties on any counter-bond given pursuant to the
provisions of this Rule to secure the payment of the
judgment shall become charged on such counter-bond
and bound to pay the judgment obligee upon demand the
amount due under the judgment, which amount may be
recovered from such surety or sureties after notice and
summary hearing in the same action.
COUNTER-BOND REFERRED TO IN SEC. 17 ! that filed and
executed under Sec. 5 and 12 by or in behalf of the
adverse party ifo the attaching party to secure the
payment or satisfaction of any judgment which the latter
may obtain in the action.
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer
TO RECOVER FROM THE SURETY ON THE COUNTER-BOND
! separate action not necessary (surety is solidarily liable
with the judgment obligor and is bound to pay the
amount due under the judgment when it becomes
executory).
Surety must be given NOTICE and OPPORTUNITY TO BE
HEARD before execution can be had against him
(since he is not a party in the case involving the
principal).
Notice and hearing requirement SUBSTANTIALLY
COMPLIED with where surety is allowed to move for
the quashal of the writ of execution and for the
cancellation of its obligation (also when surety files
a motion for reconsideration).
Sec. 18. Disposition of money deposited.
Where the party against whom attachment had been
issued has deposited money instead of giving counter-
bond, it shall be applied under the direction of the court
to the satisfaction of any judgment rendered in favor of
the attaching party, and after satisfying the judgment the
balance shall be rendered to the depositor or his
assignee. If the judgment is in favor of the party against
whom attachment was issued, the whole sum deposited
must be refunded to him or his assignee.
Sec. 19. Disposition of attache property where judgment
is for party against whom attachment was issued.
If judgment be rendered against the attaching party, all
the proceeds of sales and money collected or received by
the sheriff, under the order of attachment, and all
property attached remaining in any such officer's hands,
shall be delivered to the party against whom attachment
was issued, and the order of attachment discharged.
Sec. 20. Claim for damages on account of improper,
irregular or excessive attachment.
An application for damages on account of improper,
irregular or excessive attachment must be filed before
the trial or before the trial or before appeal is perfected
or before the judgment becomes executory, with due
notice to the attaching party and his surety or sureties,
setting forth the facts showing his right to damages and
the amount thereof. Such damages may be awarded only
after proper hearing and shall be included in the
judgment on the main case.
If the judgment of the appellate court be favorable to the
party against whom the attachment was issued, he must
claim damages sustained during the pendency of the
appeal by filing an application in the appellate court, with
notice to the party in whose favor the attachment was
issued or his surety or sureties, before the judgment of
the appellate court becomes executory. The appellate
court may allow the application to be heard and decided
by the trial court.
Nothing herein contained shall prevent the party against
whom the attachment was issued from recovering in the
same action the damages awarded to him from any
property of the attaching party not exempt from
execution should the bond or deposit given by the latter
be insufficient or fail to fully satisfy the award.
BOND IN SEC. 20 ! that executed by the attaching party
under Sec. 3 and 4 to secure the payment of damages
By: RJ MARTINEZ
8 III – LLB, EH404, USC – College of Law
that the adverse party may suffer by reason of the
attachment.
ADVERSE PARTY MAY APPLY FOR DAMAGES
1. Before trial ! matter of right!
*may properly be set up by way of counterclaim
in the Answer, or in a supplemental Answer if the
attachment was made and damages were
suffered after the filing of the original Answer.
2. After trial ! at court’s discretion.
a. Before appeal is perfected
b. Before judgment becomes executory
3. During the pendency of the appeal (if judgment of
the appellate court is favorable to the adverse
party.
*done by filing an application with the appellate
court, with notice to the other party and to his surety
(appellate court shall then dear and decide).
REQUISITES TO RECOVER DAMAGES ON A BOND
1. Defendant claimant has secured a favorable
judgment in the main action (that the claimant has
no cause of action and was not entitled to the
provisional remedy or that the defendant filed a
counterclaim for damages).
2. Application for damages (showing claimant’s rights
thereto and the amount thereof ! filed in the same
action before trial or before appeal is perfected or
before judgment becomes executory.
3. Due notice is given to the other party and his surety.
4. Proper hearing and the inclusion of award for
damages in the final judgment.
*applies to other provisional remedies i.e. injunction,
receivership, or replevin.
*defendant may still recover damages even if judgment
in the main case is against him (provided he has made a
claim for damages in his counterclaim).
Application for damages must be made in the same
action which issued the writ ! otherwise, BARRED!
EXC (may be in separate action):
a. Principal action is dismissed for lack of jurisdiction
over the subject matter and the court is prevented
form rendering judgment therein which could
include the claim for damages.
b. Defendant’s claim for damages exceeds the
jurisdiction of the MTC where the main action is
pending (so to be filed in RTC).
Surety must be notified of application for damages !
otherwise, judgment that may be entered against the
principal cannot be executed against surety (because
the latter must also be given due process/opportunity to
be heard).
*hearing will be summary and limited to such new
defense/s not previously set up by the principal.
*if surety already impleaded – no additional notice
necessary.
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer

All awards for damages should be included in the particular act/s which order that the last actual
judgment before they can be executory. would cause irreparable preamble and
The requirement that the application for damages injury if committed. uncontested status which
against the surety and the award thereof be made Situation before the preceded the pending
after hearing before the entry of the executory issuance of the prohibitory controversy is restored.
judgment is MANDATORY. injunction is preserved in
EXC: where applicant seasonably filed an application for status quo. PURPOSE ! to require the
damages in the appellate court and the latter decided performance of a
to refer such application to the trial court to hear and PURPOSE ! to preserve the particular act/s (tends to
decide the same. status quo of the things do more than maintain the
subject of the action or the status quo).
Liability of party obtaining attachment not limited to the relation between the
bond. parties, in order to protect Here, plaintiff’s right must
" Bond does not operate to relieve the party the rights of the plaintiff be clear and unmistakable.
obtaining the same from any and all responsibility respecting the subject of
for the damages the writ may cause. the action during the REQUISITES:
*bond merely an additional protection (in pendency of the suit. Clear and unmistakable
fact, should bond or deposit not be enough – legal right
may go after properties of the attaching Relief demanded must Right has been violated
party. consist in restraining the and the invasion is material
*only liability of surety is limited to the bond. commission or continuance and substantial
of the act complained of, There is an urgent and
RULE 58
either perpetually or limited permanent necessity to
PRELIMINARY INJUNCTION
period, and the other prevent serious damage.
Section 1. Preliminary injunction defined; classes. conditions required by Sec.
A preliminary injunction is an order granted at any stage 3 of R58.
of an action or proceeding prior to the judgment or final
order, requiring a party or a court, agency or a person to
refrain from a particular act or acts. It may also require
Court cannot dismiss main action for damages and
the performance of a particular act or acts, in which case
it shall be known as a preliminary mandatory injunction. injunction in order to hear and determine the propriety of
the issuance of preliminary injunction.
INJUNCTION – a judicial writ, process, or proceeding
whereby a party is ordered to do or refrain from doing a DISTINGUISHED FROM
certain act. It may be the main action or merely a PREVENTIVE INJUNCTION PROHIBITION
provisional remedy incident in the main action. An order requiring a party A judgment commanding
litigant to refrain from a a tribunal, corp., board,
KINDS particular act officer or person [TBCOP] to
PRELIMINARY PERMANENT/FINAL desist from further
An order granted at any A judgment rendered after proceeding in the action or
stage of an action or trial which perpetually matter specified therein
proceeding prior to the restrains the party or person bec it acts without or in
judgment or final order, enjoined from the excess of jurisdiction or in
requiring a party or a court, commission or continuance grave abuse of discretion
agency or a person either of the act/s, or confirming amounting to lack of
to refrain from or perform, a the preliminary mandatory jurisdiction.
particular act/s. injunction. MANDATORY INJUNCTION MANDAMUS
An order requiring a party Judgment commanding a
Exists as part of an incident litigant to perform a TBCOP unlawfully
of an independent action particular act in order to neglecting the
or proceeding. restore the last actual performance of an act
peaceable uncontested which the law specifically
Granted at any stage of an status which preceded the enjoins as a duty resulting
action or proceeding prior pending controversy. from an office, trust, or
to the judgment or final station or unlawfully
order. excluding another from the
use and enjoyment of a
CLASSES OF PRELIMINARY INJUNCTION right or office to which such
PREVENTIVE/PROHIBITORY MANDATORY other is entitled, to do the
Requires one to desist or Requires the performance act required to be done in
refrain from performing a of a particular act/s in order to protect the rights
By: RJ MARTINEZ Based on Feria & Noche Book
9 III – LLB, EH404, USC – College of Law
 Provisional remedies & special civil actions
Reviewer
of the petitioner.
GR: injunction does not apply to consummated acts.
EXC: mandatory injunction (court can restore the
status quo after defendant “races to beat the
injunction” by performing the act/s sought to be
enjoined).
*no new relations between the parties – pre-exisitng
relationship is maintained or re-established.
Sec. 2. Who may grant preliminary injunction.
A preliminary injunction may be granted by the court
where the action or proceeding is pending. If the action
or proceeding is pending in the Court of Appeals or in the
Supreme Court, it may be issued by said court or any
member thereof.
MAY BE GRANTED BY
a. MTC
b. RTC
c. CA or any member thereof
d. SC or any member thereof
. . .where the action is pending.
Injunction cannot be issued by a court against a co-
equal court/administrative agency.
i.e. RTC cannot issue injunction against NLRC.
Denial of a previous petition for preliminary injunction not
an obstacle to subsequent allowance of injunction by
another judge of a branch of a trial court.
Trial court cannot restrain or enjoin acts being
perpetrated or to be perpetrated outside its territorial
boundaries.
*where the adverse order was issued in one jurisdiction
but to be performed in another ! injunction may be filed
where the order is to be implemented.
**but where acts are to be performed in another area
but the instructions are come from a principal office !
place of principal office is where injunction is filed.
Sec. 3. Grounds for issuance of preliminary injunction.
A preliminary injunction may be granted when it is
established:
(a) That the applicant is entitled to the relief demanded,
and the whole or part of such relief consists in
restraining the commission or continuance of the act or
acts complained of, or in requiring the performance of an
act or acts, either for a limited period or perpetually;
(b) That the commission, continuance or non-
performance of the act or acts complained of during the
litigation would probably work injustice to the applicant;
or
(c) That a party, court, agency or a person is doing,
threatening, or is attempting to do, or is procuring or
suffering to be done, some act or acts probably in
violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to render
the judgment ineffectual.
Requisites
Existence of a right (clear, positive, and unmistakable –
not required to be conclusively shown)
By: RJ MARTINEZ
10 III – LLB, EH404, USC – College of Law
The act against which the injunction is to be directed is
material and substantial violation or invasion of such right
Urgent and paramount necessity to prevent serious
damage.
*onus probandi with applicant to show that there exists a
right to be protected.
CASES WHERE INJUNCTION DOES NOT LIE
a. Where legal title is in dispute, to take property out of
the possession or control of one party and place it
into that of another whose title has not clearly been
established by law
b. When action for damages would adequately
compensate the injuries caused
c. To prevent directors from discharging their offices
and restoring former director
d. Restrain criminal prosecution where the
Ombudsman has authorized Special prosecutor to
conduct Prelim Inves.
Statutes that prohibit preliminary injunction
a. NIRC – collection of tax
b. Asset Privatization Trust
c. RA 8974 (except SC)
i. Acquisition, clearance and development of
ROW and/or site or location of natl govt
project
ii. Bidding/awarding of contract/project of natl
govt
iii. Commencement prosecution, execution,
implementation, operation of any such
contract or project
iv. Termination or rescission of any such contract
or proj
v. Undertaking or authorization of any other
lawful activity necessary for such
contract/proj
EXC: matter of extreme urgency involving
constitutional issue (grave injustice and
irreparable injury will arise)
d. PARC, DAR, DA, DENR, DOJ
e. Government financial institution in connection
with foreclosure of any collateral (unless 20% of
the arrears has been paid after filing of
foreclosure
Courts cannot issue preliminary injunction which woul in
effect dispose of the main case without trial.
i.e. in a complaint alleging that foreclosure sale is
invalid ! prelim injunction denied (else there would
already be a virtual acceptance of plaintiff’s claim).
ANNULMENT OF JUDGMENT (not action for injunction) !
To permanently enjoin the public auction of property
levied.
Sec. 4. Verified application and bond for preliminary
injunction or temporary restraining order.
A preliminary injunction or temporary restraining order
may be granted only when:
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer
(a) The application in the action or proceeding is verified,
and shows facts entitling the applicant to the relief
demanded; and
(b) Unless exempted by the court, the applicant files with
the court where the action or proceeding is pending, a
bond executed to the party or person enjoined, in an
amount to be fixed by the court, to the effect that the
applicant will pay to such party or person all damages
which he may sustain by reason of the injunction or
temporary restraining order if the court should finally
decide that the applicant was not entitled thereto. Upon
approval of the requisite bond, a writ of preliminary
injunction shall be issued.
(c) When an application for a writ of preliminary
injunction or a temporary restraining order is included
in a complaint or any initiatory pleading, the case, if filed
in a multiple-sala court, shall be raffled only after notice
to and in the presence of the adverse party or the person
to be enjoined. In any event, such notice shall be
preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the
complaint or initiatory pleading and the applicant’s
affidavit and bond, upon the adverse party in the
Philippines.
However, where the summons could not be served
personally or by substituted service despite diligent
efforts, or the adverse party is a resident of the
Philippines temporarily absent therefrom or is a
nonresident thereof, the requirement of prior or
contemporaneous service of summons shall not apply.
(d) The application for a temporary restraining order
shall thereafter be acted upon only after all parties are
heard in a summary hearing which shall be conducted
within twenty-four (24) hours after the sheriff’s return of
service and/or the records are received by the branch
selected by raffle and to which the records shall be
transmitted immediately.
REQUISITES
1. VERIFIED APPLICATION (showing facts entitling
applicant to relief demanded).
2. BOND filed with court in an amount fixed by it
(unless exempted by the court).
Answers for any and all damages, actual, moral,
and exemplary, which the party or person
enjoined may sustain by reason of the preliminary
injunction or temporary restraining order, if court
should finally decide that the applicant was not
entitled thereto.
When application is included in complaint or initiatory
pleading:
3. RAFFLE of case with NOTICE (preceded or
contemporaneously accompanied by service of
summons with copy of complaint, affidavit, and
bond).
4. SUMMARY HEARING
*if there can be no prior or contemporaneous service of
summons (i.e. temporarily absent from the country) –
requirement of notice to and presence of adverse party
during raffle may be dispensed with.
Sec. 5. Preliminary injunction not granted without
notice; exception.
No preliminary injunction shall be granted without
hearing and prior notice to the party or person sought to
be enjoined. If it shall appear from facts shown by
By: RJ MARTINEZ
11 III – LLB, EH404, USC – College of Law
affidavits or by the verified application that great or
irreparable injury would result to the applicant before
the matter can be heard on notice, the court to which the
application for preliminary injunction was made, may
issue ex parte a temporary restraining order to be
effective only for a period of twenty (20) days from
service on the party or person sought to be enjoined,
except as herein provided. Within the said twenty-day
period, the court must order said party or person to show
cause, at a specified time and place, why the injunction
should not be granted, determine within the same period
whether or not the preliminary injunction shall be
granted, and accordingly issue the corresponding order.
However, and subject to the provisions of the preceding
sections, if the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable
injury, the executive judge of a multiple-sala court or the
presiding judge of a single-sala court may issue ex parte a
temporary restraining order effective for only seventy-
two (72) hours from issuance but he shall immediately
comply with the provisions of the next preceding section
as to service of summons and the documents to be served
therewith. Thereafter, within the aforesaid seventy-two
(72) hours, the judge before whom the case is pending
shall conduct a summary hearing to determine whether
the temporary restraining order shall be extended until
the application for preliminary injunction can be heard.
In no case shall the total period of effectivity of the
temporary restraining order exceed twenty (20) days,
including the original seventy-two hours provided herein.
In the event that the application for preliminary
injunction is denied or not resolved within the said
period, the temporary restraining order is deemed
automatically vacated. The effectivity of a temporary
restraining order is not extendible without need of any
judicial declaration to that effect and no court shall have
authority to extend or renew the same on the same
ground for which it was issued.
However, if issued by the Court of Appeals or a member
thereof, the temporary restraining order shall be
effective for sixty (60) days from service on the party or
person sought to be enjoined. A restraining order issued
by the Supreme Court or a member thereof shall be
effective until further orders.
IRREPARABLE INJURY ! that species of injury, whether
great or small, that ought not to be submitted to on the
one hand or inflicted on the other, and because it is so
large o the one hand, or so small on the other, is of such
constant and frequent recurrence that no fair or
reasonable redress can be had therefor in the court of
law.
- Not susceptible to mathematical computation.
- No standard by which amount can be
measured.
GR: PRELIM INJUNCTION shall be granted only after
hearing and prior notice.
APPLICATION FOR THE ORDER shall be ACTED UPON after
all parties are heard in a SUMMARY HEARING conducted
within 24 hrs after the sheriff’s return of service of
summons. And/or the records are received by the branch
selected by raffle and to which the records shall be
transmitted immediately.
EXC: in cases of extreme urgency and the applicant
will suffer grave injustice and irreparable injury (may
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer
be EX PARTE) ! issued by EXECUTIVE JUDGE or
PRESIDING JUDGE and VALID for 72 hrs.
Life of prelim injunction ! 20 days (including the 72 hrs if
earlier issued ex parte) ! CA = 60D; SC = effective until
further orders.
*deemed automatically vacated after the period (by
operation of law).
*may be extendible BUT for another ground other than
that for which it was originally issued.
*Saturdays, Sundays, and holidays included in the count.
Sec. 6. Grounds for objection to, or for motion of
dissolution of, injunction or restraining order.
The application for injunction or restraining order may
be denied, upon a showing of its insufficiency. The
injunction or restraining order may also be denied, or, if
granted, may be dissolved, on other grounds upon
affidavits of the party or person enjoined, which may be
opposed by the applicant also by affidavits. It may further
be denied, or, if granted, may be dissolved, if it appears
after hearing that although the applicant is entitled to the
injunction or restraining order, the issuance or
continuance thereof, as the case may be, would cause
irreparable damage to the party or person enjoined while
the applicant can be fully compensated for such damages
as he may suffer, and the former files a bond in an
amount fixed by the court conditioned that he will pay all
damages which the applicant may suffer by the denial or
the dissolution of the injunction or restraining order. If it
appears that the extent of the preliminary injunction or
restraining order granted is too great, it may be modified.
GROUNDS FOR OBJECTION TO/MOTION OF DISSOLUTION
OF INJUNCTION
a. Insufficiency of the application
b. Filing by the party enjoined of a counter-bond in an
amount fixed by the court when issuance or
continuance of the injunction would cause
irreparable damage to the party enjoined
c. Insufficiency of the applicant’s bond
FILING OF COUNTER-BOND BY PARTY ENJOINED
" NOT a MATTER of RIGHT.
- May be approved by the court after hearing.
- Purpose: liable for al damages which the
applicant may suffer by the denial or the
dissolution of the injunction or restraining order.
Court may consider supervening events during the
litigation to lift the injunction.
Sec. 7. Service of copies of bonds; effect of disapproval of
same.
The party filing a bond in accordance with the provisions
of this Rule shall forthwith serve a copy of such bond on
the other party, who may except to the sufficiency of the
bond, or of the surety or sureties thereon. If the
applicant’s bond is found to be insufficient in amount, or
if the surety or sureties thereon fail to justify, and a bond
sufficient in amount with sufficient sureties approved
after justification is not filed forthwith, the injunction
shall be dissolved. If the bond of the adverse party is
found to be insufficient in amount, or the surety or
sureties thereon fail to justify a bond sufficient in amount
By: RJ MARTINEZ
12 III – LLB, EH404, USC – College of Law
with sufficient sureties approved after justification is not
filed forthwith, the injunction shall be granted or
restored, as the case may be.
IF BOND FILED INSUFFICIENT
Bond sufficient in amount with sufficient sureties
approved after justification will be required to be filed
(otherwise injunction shall be dissolved or
granted/restored).
Sec. 8. Judgment to include damages against party and
sureties.
At the trial, the amount of damages to be awarded to
either party, upon the bond of the adverse party, shall be
claimed, ascertained, and awarded under the same
procedure prescribed in section 20 of Rule 57.
Damages must be claimed in the same action !
otherwise, BARRED!
*judgment must be included in the final judgment of the
case.
Sec. 9. When final injunction granted.
If after the trial of the action it appears that the applicant
is entitled to have the act or acts complained of
permanently enjoined, the court shall grant a 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.
Final injunction may NOT be granted before judgment.
*only granted after trial and after it is proved that the
applicant is entitled to have the act/s complained of
permanently enjoined.
*final injunction does not necessarily follow when one
has earlier been granted preliminary injunction.
RULE 59
RECEIVERSHIP
Section 1. Appointment of receiver.
Upon a verified application, one or more receivers of the
property subject of the action or proceeding may be
appointed by the court where the action is pending, or by
the Court of Appeals or by the Supreme Court, or a
member thereof, in the following cases:
(a) When it appears from the verified application, and
such other proof as the court may require, that the party
applying for the appointment of a receiver has an interest
in the property or fund which is the subject of the action
or proceeding, and that such property or fund is in
danger of being lost, removed, or materially injured
unless a receiver be appointed to administer and
preserve it;
(b) When it appears in an action by the mortgagee for the
foreclosure of a mortgage that the property is in danger
of being wasted or dissipated or materially injured, and
that its value is probably insufficient to discharge the
mortgage debt, or that the parties have so stipulated in
the contract of mortgage;
(c) After judgment, to preserve the property during the
pendency of an appeal, or to dispose of it according to the
judgment, or to aid execution when the execution has
been returned unsatisfied or the judgment obligor
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 Provisional remedies & special civil actions
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refuses to apply his property in satisfaction of the proper to remedy maladministration of co-
judgment, or otherwise to carry the judgment into effect; owned property
(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 (b) When it appears in an action by the mortgagee for
of the property in litigation. the foreclosure of a mortgage that the property is
During the pendency of an appeal, the appellate court in danger of being wasted or dissipated or
may allow an application for the appointment of a materially injured, and that its value is probably
receiver to be filed in and decided by the court of origin insufficient to discharge the mortgage debt, or that
and the receiver appointed to be subject to the control of the parties have so stipulated in the contract of
said court. mortgage;
- Appointment of receiver not a matter of
RECEIVER – an indifferent person between the parties to a
absolute right when stipulated for by the parties.
cause, appointed by the court to receive and preserve
the property or fund in litigation pendent lite, when it
(c) After judgment, to preserve the property during the
does not seem reasonable to the court that either party
pendency of an appeal, or to dispose of it
should hold it.
according to the judgment, or to aid execution
when the execution has been returned unsatisfied
PURPOSE ! aimed at the preservation of and the making
or the judgment obligor refuses to apply his
secure of existing rights (cannot be used as an instrument
property in satisfaction of the judgment, or
for the destruction of these rights).
otherwise to carry the judgment into effect;
*of all the extraordinary remedies – most drastic and far –
- Trial court still has jurisdiction to appoint receiver
reaching in effect.
even after perfection of appeal (residual
jurisdiction).
FOLLOWING MAY APPOINT RECEIVER
- Receiver may be appointed when execution
a. MTC where action is pending
returned unsatisfied.
b. RTC where action is pending
c. CA or any member thereof
(d) Whenever in other cases it appears that the
d. SC or any member thereof
appointment of a receiver is the most convenient
i.e. in petitions to declare state of suspension of payments
and feasible means of preserving, administering, or
RTC appoints; in dissolution of corporations SEC appoints.
disposing of the property in litigation. During the
pendency of an appeal, the appellate court may
APPOINTMENT ! discretionary. (court shall consider the
allow an application for the appointment of a
entire circumstances of the case).
receiver to be filed in and decided by the court of
- Receiver may be appointed during the
origin and the receiver appointed to be subject to
pendency of the appeal (by the appellate court
the control of said court.
or the lower court).
- Courts have wide discretion in appointment of
receiver ! but must not be exercised arbitrarily
REMEDY AGAINST AN ORDER APPOINTING RECEIVER
and sound reasons for appointment must
Certiorari, not appeal.
appear.
*appeal only after final judgment has been rendered.
- Aggrieved spouse may petition the court for
receivership of the common property (if the other
When receivership appointed
abandons without just cause or fails to comply
(a) When it appears from the verified application, and
with his obligations). *court may appoint the
such other proof as the court may require, that the
applicant-spouse or a 3rd person.
party applying for the appointment of a receiver
*In controversies involving business organizations and
has an interest in the property or fund which is the
partnerships, party may apply for receiver when there is
subject of the action or proceeding, and that such
imminent danger of:
property or fund is in danger of being lost,
a. Dissipation, los, wastage, destruction of assets or
removed, or materially injured unless a receiver be
properties;
appointed to administer and preserve it;
b. Paralyzation of the business operations prejudicial
Requisites:
to the interests of the minority stockholders, parties,
1. Interest in the property (actual existing
public in general.
interest)
i.e. in a derivative suit; when managing partner
2. Subject property/fund must be in litigation
disposes partnership property; wind up affairs of a
according to the allegations of the
dissolved partnership.
complaint
3. Purpose is to secure and preserve the Sec. 2. Bond on appointment of receiver.
property/fund pending litigation Before issuing the order appointing a receiver the court
i.e. not proper in actions involving title to shall require the applicant to file a bond executed to the
real estate (except in extreme cases and on party against whom the application is presented, in an
a clear showing of necessity therefor); amount to be fixed by the court, to the effect that the

By: RJ MARTINEZ Based on Feria & Noche Book

13 III – LLB, EH404, USC – College of Law
 Provisional remedies & special civil actions
Reviewer
applicant will pay such party all damages he may sustain
by reason of the appointment of such receiver in case the
applicant shall have procured such appointment without
sufficient cause; and the court may, in its discretion, at
any time after the appointment, require an additional
bond as further security for such damages.
Purpose of applicant’s bond
Executed to the party against whom the application is
presented, to the effect that the applicant will pay such
party all damages he may sustain by reason of the
appointment of such receiver in case the applicant shall
have procured such appointment without sufficient
cause.
Appointment of receiver ! cannot be done EX PARTE.
Plaintiff can be appointed as receiver (under special
circumstances).
- Mere fact that one is an interested party does
not disqualify him.
- If plaintiff becomes receiver ! not entitled to
compensation but only recovery of expenses
actually and necessarily incurred in caring for the
property.
Sec. 3. Denial of application or discharge of receiver.
The application may be denied, or the receiver
discharged, when the adverse party files a bond executed
to the applicant, in an amount to be fixed by the court, to
the effect that such party will pay the applicant all
damages he may suffer by reason of the acts, omissions,
or other matters specified in the application as ground
for such appointment. The receiver may also be
discharged if it is shown that his appointment was
obtained without sufficient cause.
Ground for denial of application
When adverse party files a BOND
Executed to the applicant in an amount fixed by the
court, to the effect that such party will pay the applicant
all damages he may suffer by reason of the acts,
omissions, or other matters specified in the application as
ground for such appointment
If it is shown that the appointment of the receiver was
obtained without sufficient cause
When applicant’s bond insufficient and a bond with
sufficient sureties not filed forthwith.
Where one was not permitted to file a bond in
accordance with the rules ! appointment of receiver by
the court should be revoked because of lower court’s
grave abuse of discretion.
Sec. 4. Oath and bond of receiver.
Before entering upon his duties, the receiver shall be
sworn to perform them faithfully, and shall file a bond,
executed to such person and in such sum as the court
may direct, to the effect that he will faithfully discharge
his duties in the action or proceeding and obey the orders
of the court.
Receiver’s bond ! answers for damages that may have
been suffered by reason of the failure of the receiver to
By: RJ MARTINEZ
14 III – LLB, EH404, USC – College of Law
discharge his duties faithfully or to obey the orders of the
court.
Sec. 5. Service of copies of bonds; effect of disapproval of
same.
The person filing a bond in accordance with the
provisions of this Rule shall forthwith serve a copy
thereof on each interested party, who may except to its
sufficiency or of the surety or sureties thereon. If either
the applicant’s or the receiver’s bond is found to be
insufficient in amount, or if the surety or sureties
thereon fail to justify, and a bond sufficient in amount
with sufficient sureties approved after justification is not
filed forthwith, the application shall be denied or the
receiver discharged, as the case may be. If the bond of the
adverse party is found to be insufficient in amount or the
surety or sureties thereon fail to justify, and a bond
sufficient in amount with sufficient sureties approved
after justification is not filed forthwith, the receiver shall
be appointed or re-appointed, as the case may be.
Effects of insufficiency of applicant’s or the receiver’s
bond
A bond sufficient in amount with sufficient sureties
approved must be filed ! else, application shall be
denied or receiver discharged.
Of adverse parties bond
Receiver shall be appointed or reappointed.
Sec. 6. General powers of receiver.
Subject to the control of the court in which the action or
proceeding is pending, a receiver shall have the power to
bring and defend, in such capacity, actions in his own
name; to take and keep possession of the property in
controversy; to receive rents; to collect debts due to
himself as receiver or to the fund, property, estate,
person, or corporation of which he is the receiver; to
compound for and compromise the same; to make
transfers; to pay outstanding debts; to divide the money
and other property that shall remain among the persons
legally entitled to receive the same; and generally to do
such acts respecting the property as the court may
authorize. However, funds in the hands of a receiver may
be invested only by order of the court upon the written
consent of all the parties to the action.
No action may be filed by or against a receiver without
leave of the court which appointed him.
Section refers to GENERAL POWERS of a receiver.
Before a receiver enters in to a contract ! must obtain
the approval of the court.
*unauthorized contracts – not binding on the court but
are his own contracts/obligations.
Leave of appointing court ! required before action may
be filed by or against the receiver.
- Receiver is an officer of the court.
- Subject to the control of the court.
- Receiver shall not be subject to any action for
any act done or omitted in good faith and in the
exercise of his functions and powers.
Those with claims against properties under receivership
may prove their rights via:
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer
a. Motion or petition in the same proceeding in which
the receiver discharges his duties
b. Complaint-in-intervention in accordance with Sec. 1
R19
c. In case of claims against a corporation in the hands
of a receiver, notice must be given to all parties-in-
interest who shall be given a reasonable opportunity
to present objections and submit evidence in
support of such objections.
RECEIVER SHERIFF
Special officer appointed Court officer of a general
in relation to and within a character who is not
certain case or action, and appointed for a certain
whose duties are limited to judicial case.
his sphere of action and do
not extend further than the Funds within his custody
case in which he was may be within reach of
appointed. processes coming from
other judicial proceedings.
Those who have any claim
to property or sums in the
possession of a receiver,
must appear in the same
proceeding in which said
receiver was appointed.
Sec. 7. Liability for refusal or neglect to deliver property
to receiver.
A person who refuses or neglects, upon reasonable
demand, to deliver to the receiver all the property,
money, books, deeds, notes, bills, documents and papers
within his power or control, subject of or involved in the
action or proceeding, or in case of disagreement, as
determined and ordered by the court, may be punished
for contempt and shall be liable to the receiver for the
money or the value of the property and other things so
refused or neglected to be surrendered, together with all
damages that may have been sustained by the party or
parties entitled thereto as a consequence of such refusal
or neglect.
Person who refuses or neglects upon reasonable
demand, to deliver to the receiver property within his
power or control, subject of or involved in the action or
proceeding, or in case of disagreement, as determined
and ordered by the court, may be liable for:
a. Contempt
b. For the money or the value of property and other
tings so refused or neglected to be surrendered
c. All damages that may have been sustained by the
party or parties entitled to the property as a
consequence of such refusal or neglect
Sec. 8. Termination of receivership; compensation of
receiver.
Whenever the court, motu proprio or on motion of either
party, shall determine that the necessity for a receiver no
longer exists, it shall, after due notice to all interested
parties and hearing, settle the accounts of the receiver,
direct the delivery of the funds and other property in his
possession to the person adjudged to be entitled to
By: RJ MARTINEZ
15 III – LLB, EH404, USC – College of Law
receive them, and order the discharge of the receiver
from further duty as such. The court shall allow the
receiver such reasonable compensation as the
circumstances of the case warrant, to be taxed as costs
against the defeated party, or apportioned, as justice
requires.
If necessity for receiver no longer exists (as determined by
the court motu propio or upon motion), the court shall,
after due notice and hearing:
a. Settle the accounts of the receiver
b. Direct the delivery of the funds and other property in
his possession to the person adjudged to be entitled
to reeive them
c. Order the discharge of the receiver from further duty
as such
d. Grant the receiver such reasonable compensation
as the circumstances of the case warrant (to be
taxed as costs against the defeated party or
apportioned, as justice requires).
GROUNDS FOR REMOVAL OF RECEIVER
When he asserts ownership over the property in his hands
as receiver and refuses to submit any account of the
financial status of said property.
*objection to accounts of receiver should be made
timely (i.e. objection after one year and after one has
received the share of the balance of the funds cannot
be allowed).
Sec. 9. Judgment to include recovery against sureties.
The amount, if any, to be awarded to any party upon any
bond filed in accordance with the provisions of this Rule,
shall be claimed, ascertained, and granted under the
same procedure prescribed in section 20 of Rule 57.
Damages against the bond must be filed in the same
action – else, BARRED!
i.e. where lessee suffered damage as a result of the
receivership over the leased property ! he should
intervene in the receivership case (he cannot recover in
a separate action).
**but he can file a separate action for damages
against the lessors based on the latter’s implied
warranty.
RULE 60
REPLEVIN
Section 1. Application.
A party praying for the recovery of possession of personal
property may, at the commencement of the action or at any
time before answer, apply for an order for the delivery of
such property to him, in the manner hereinafter provided.
REPLEVIN – a provisional remedy that consists in the
delivery by the defendant, upon the order of the court, of
a personal property to the plaintiff, who shall give a bond
to assure the return thereof or the payment of damages
to the defendant if the plaintiff’s action to recover
possession of the property fails.
*protects the plaintiff’s right of possession of the personal
property
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer
*enforceable ANYWHERE in the Philippines.
WHEN AVAILABLE
a. At the commencement of the action
b. At any time before Answer
JURISDICTION
MTC – not more than P300K(Non-MM)/P400K(MM)
RTC – more than P300K(Non-MM)/P400K(MM).
Expenses of suit (sheriff’s fees, premium on the replevin
bond) and Attorney’s fees in an ACTION FOR REPLEVIN
recoverable directly from the mortgagor.
Sec. 2. Affidavit and bond.
The applicant must show by his own affidavit or that of some
other person who personally knows the facts:
(a) That the applicant is the owner of the property claimed,
particularly describing it, or is entitled to the possession
thereof;
(b) That the property is wrongfully detained by the adverse
party, alleging the cause of detention thereof according to the
best of his knowledge, information, and belief;
(c) That the property has not been distrained or taken for a
tax assessment or a fine pursuant to law, or seized under a
writ of execution or preliminary attachment, or otherwise
placed under custodia legis, or if so seized, that it is exempt
from such seizure or custody; and
(d) The actual market value of the property.
The applicant must also give a bond, executed to the adverse
party in double the value of the property as stated in the
affidavit aforementioned, for the return of the property to
the adverse party if such return be adjudged, and for the
payment to the adverse party of such sum as he may recover
from the applicant in the action.
AFFIDAVIT MUST CONTAIN
1. Applicant is the owner, description of property,
entitlement to possession
2. That it is wrongfully detained by the adverse party
[AP] (alleging cause of detention according to the
best of his knowledge, information, and belief).
3. That property is not in CUSTODIA LEGIS
*or if seized for a tax assessment/fine is exempt
from such seizure or custody.
4. Actual MARKET VALUE of the property.
Bond must be DOUBLE the VALUE of the property as
stated in the Affidavit.
Bond shall be for:
a. Return of the property to the AP if return be
adjudged
b. Payment to the AP of such sum as he may recover
from the applicant.
Sec. 3. Order.
Upon the filing of such affidavit and approval of the bond,
the court shall issue an order and the corresponding writ of
replevin describing the personal property alleged to be
wrongfully detained and requiring the sheriff forthwith to
take such property into his custody.
Sec. 4. Duty of the sheriff.
Upon receiving such order, the sheriff must serve a copy
thereof on the adverse party, together with a copy of the
application, affidavit and bond, and must forthwith take the
By: RJ MARTINEZ
16 III – LLB, EH404, USC – College of Law
property, if it be in the possession of the adverse party, or his
agent, and retain it in his custody. If the property or any part
thereof be concealed in a building or enclosure, the sheriff
must demand its delivery, and if it be not delivered, he must
cause the building or enclosure to be broken open and take
the property into his possession. After the sheriff has taken
possession of the property as herein provided, he must keep
it in a secure place and shall be responsible for its delivery to
the party entitled thereto upon receiving his fees and
necessary expenses for taking and keeping the same.
Sheriff must serve a copy to AP (w/ copy of application,
affidavit, and bond).
Take the property.
Retain it in his custody.
*IF ANY PART IS CONCEALED IN A
BUILDING/ENCLOSURE
Sheriff must demand its delivery
If not delivered, cause building/enclosure to be
broken open
Take the property in his possession
After the Sheriff has taken possession, the property must
be taken kept in a secure place and shall deliver it to the
party entitled.
*he may not deliver until his fees and necessary
expenses for taking and keeping are received.
Sec. 5. Return of property.
If the adverse party objects to the sufficiency of the
applicant’s bond, or of the surety or sureties thereon, he
cannot immediately require the return of the property, but if
he does not so object, he may, at any time before the delivery
of the property to the applicant, require the return thereof,
by filing with the court where the action is pending a bond
executed to the applicant, in double the value of the property
as stated in the applicant’s affidavit for the delivery thereof
to the applicant, if such delivery be adjudged, and for the
payment of such sum to him as may be recovered against the
adverse party, and by serving a copy of such bond on the
applicant.
ADVERSE PARTY’S BOND/COUNTER-BOND – made by the
AP at any time before the delivery of the property to
applicant.
*must be DOUBLE the VALUE of the property as stated in
the applicant’s affidavit.
COUNTER-BOND for:
a. Delivery of the property to the applicant (if such
delivery be adjudged).
b. Payment of such sum to the applicant as may be
recovered against the AP.
Sec. 6. Disposition of property by sheriff.
If within five (5) days after the taking of the property by the
sheriff, the adverse party does not object to the sufficiency of
the bond, or of the surety or sureties thereon; or if the
adverse party so objects and the court affirms its approval of
the applicant’s bond or approves a new bond, or if the
adverse party requires the return of the property but his
bond is objected to and found insufficient and he does not
forthwith file an approved bond, the property shall be
delivered to the applicant. If for any reason the property is
not delivered to the applicant, the sheriff must return it to
the adverse party.
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer
In addition to the counter-bond (see Sec. 5) the AP must
furnish the plaintiff with a copy of the counter-bond within
5 days from the date the sheriff took possession of the
property --- or else he will lose right to contest delivery to
plaintiff.
*SUBSTANTIAL COMPLIANCE is sufficient (i.e. when
plaintiff’s lawyer was shown the counter-bond in the
sheriff’s office – OK!).
Sec. 7. Proceedings where property claimed by third person.
If the property taken is claimed by any person other than the
party against whom the writ of replevin had been issued or
his agent, and such person makes an affidavit of his title
thereto, or right to the possession thereof, stating the
grounds therefor, and serves such affidavit upon the sheriff
while the latter has possession of the property and a copy
thereof upon the applicant, the sheriff shall not be bound to
keep the property under replevin or deliver it to the
applicant unless the applicant or his agent, on demand of
said sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in a sum not less than the
value of the property under replevin as provided in section 2
hereof. In case of disagreement as to such value, the court
shall determine the same. 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 sheriff shall not be liable for damages, for the taking or
keeping of such property, to any such third-party claimant if
such bond shall be filed. Nothing herein contained shall
prevent such claimant or any third person from vindicating
his claim to the property, or prevent the applicant from
claiming damages against a third-party claimant who filed a
frivolous or plainly spurious claim, in the same or a separate
action.
When the writ of replevin is issued in favor of the Republic of
the Philippines, or any officer duly representing it, the filing
of such bond shall not be required, and in case the sheriff is
sued for damages as a result of the replevin, 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 the funds to be
appropriated for the purpose.
3rd Person – to vindicate his claim thru Intervention.
AFFIDAVIT is needed, stating:
a. Title/Right to Possession
b. Grounds
Served upon the Sheriff and applicant
Filed within 120D.
Bond: not less than the value of the property
*in case of disagreement, Court shall determine.
Sec. 8. Return of papers.
The sheriff must file the order, with his proceedings
indorsed thereon, with the court within ten (10) days after
taking the property mentioned therein.
Sheriff to file a RETURN within 10D.
Sec. 9. Judgment.
After trial of the issues, the court shall determine who has
the right of possession to and the value of the property and
shall render judgment in the alternative for the delivery
thereof to the party entitled to the same, or for its value in
By: RJ MARTINEZ
17 III – LLB, EH404, USC – College of Law
case delivery cannot be made, and also for such damages as
either party may prove, with costs.
The Court’s judgment shall contain:
1. Either:
a. DELIVERY of property to the party entitled.
b. PAYMENT of the value of the property, in case
the delivery cannot be made.
2. Payment of DAMAGES AND COSTS.
*PREVAILING PARTY has the right to refuse acceptance of
the property if they cannot be returned in substantially
the same condition (i.e. depreciated substantially).
In such a case, he may:
a. SUE on the redelivery bond;
b. EXECUTE on the judgment for value.
c.
*PREMIUMS on the counter-bond are not recoverable as
damages.
- They are voluntary expenses.
Sec. 10. Judgment to include recovery against sureties.
The amount, if any, to be awarded to any party upon any
bond filed in accordance with the provisions of this Rule,
shall be claimed, ascertained, and granted under the same
procedure as prescribed in section 20 of Rule 57.
See Sec. 20, R57
Damages should be claimed in the same action – else,
they will be barred (to prevent multiplicity of actions).
Defendant cannot recover on the replevin bond (filed by
the plaintiff) if there is no judgment in his favor for the
return of the property.
Duty to return springs from a valid judgment, without
the duty to return, there can be no damages for non-
restitution.
RULE 61
SUPPORT PENDENTE LITE
Section 1. Application.
At the commencement of the proper action or proceeding, or
at any time prior to the judgment or final order, a verified
application for support pendente lite may be filed by any
party stating the grounds for the claim and the financial
conditions of both parties, and accompanied by affidavits,
depositions or other authentic documents in support
thereof.
WHEN AVAILABLE
Commencement of the proper action/proceeding
Any time prior to the judgment/final order
APPLICATION MUST BE
1. Verified
2. Application must state
a. Grounds
b. Financial conditions of the applicant and
the AP
3. Accompanied by affidavits, depositions, or other
supporting docs
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 Provisional remedies & special civil actions
Reviewer
*exclusive jurisdiction lies with RTC (incapable of
pecuniary estimation).
**in a criminal action within the jurisdiction of MTC and
civil liability is deemed instituted, the court may grant
support to the child born to the offended party
because of the crime.
SUPPORT COMPRISES EVERYTHING INDISPENSABLE FOR
1. Sustenance
2. Dwelling
3. Clothing
4. Medical
5. Education (schooling/training even beyond the
age of majority).
6. Transportation (going to and from school/place of
work).
*in keeping with the financial capacity of the family (in
proportion to the resources of the giver and the
necessities of the recipient).
PERSONS OBLIGED TO GIVE SUPPORT
a. Spouses
b. Legitimate ascendants and descendants
c. Parents and their Legitimate Children and the
Legitimate and Illegitimate children of the latter
d. Parents and their illegitimate children and the
legitimate children and illegitimate children of the
latter
e. Legitimate brothers and sisters, whether full or half-
blood.
*According to the FC, legal separation cannot be tried
for 6mos after its filing – but support pendent lite may be
granted during the interregnum.
Support is demandable from the time the person who has
a right to receive needs it for MAINTENANCE.
But it shall not be paid except from the date of judicial or
EJ demand.
*judgment for support is IMMEDIATELY ENFORCEABLE
(unless ordered otherwise).
Appeal cannot stay the enforcement.
On appeal, the appellate court may make order
suspending, modifying, restoring, or granting the
award.
*SUPPORT shall be taken from the absolute community or
conjugal partnership (after final judgment – obligation of
mutual support between the spouses ceases).
In legal separation – guilty spouse may be ordered to
support the innocent one.
Sec. 2. Comment.
A copy of the application and all supporting documents shall
be served upon the adverse party, who shall have five (5)
days to comment thereon unless a different period is fixed by
the court upon his motion. The comment shall be verified
and shall be accompanied by affidavits, depositions or other
authentic documents in support thereof.
AP is given 5D from service to COMMENT.
Must be:
1. verified
By: RJ MARTINEZ
18 III – LLB, EH404, USC – College of Law
2. Accompanied by supporting affidavits, depositions,
other authentic documents.
Sec. 3. Hearing.
After the comment is filed, or after the expiration of the
period for its filing, the application shall be set for hearing
not more than three (3) days thereafter. The facts in issue
shall be proved in the same manner as is provided for
evidence on motions.
Hearing shall not be more than 3D from filing of the
comment/expiration of period for filing.
To be RESOLVED in the same manner as is provided for
evidence on MOTIONS (not necessary to go into the
merits of the case/full hearing).
Sec. 4. Order.
The court shall determine provisionally the pertinent facts,
and shall render such orders as justice and equity may
require, having due regard to the probable outcome of the
case and such other circumstances as may aid in the proper
resolution of the question involved. If the application is
granted, the court shall fix the amount of money to be
provisionally paid or such other forms of support as should
be provided, taking into account the necessities of the
applicant and the resources or means of the adverse party,
and the terms of payment or mode for providing the support.
If the application is denied, the principal case shall be tried
and decided as early as possible.
GRANTED DENIED
Court shall fix:
1. Amount to be Principal action shall be
provisionally paid or tried and decided as early
such other forms of as possible.
support, taking into
account the necessities
of the applicant and
the resources or means
of the AP.
2. The terms of payment or
mode of support.
REMEDY (Adverse Decision)
CERTIORARI/PROHIBITION may lie (2 reasons):
1. The court exceeds its jurisdiction (i.e. without hearing,
fixing exorbitant amount, not allowing defendant to
present evidence).
2. Appeal is not allowed (there is other speedy and
adequate remedy).
Sec. 5. Enforcement of order.
If the adverse party fails to comply with an order granting
support pendente lite, the court shall, motu proprio or upon
motion, issue an order of execution against him, without
prejudice to his liability for contempt.
When the person ordered to give support pendente lite
refuses or fails to do so, any third person who furnished that
support to the applicant may, after due notice and hearing in
the same case, obtain a writ of execution to enforce his right
of reimbursement against the person ordered to provide
such support.
FAILURE TO COMPLY with order granting support:
The court shall issue an order of execution
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer
A. MOTU PROPIO
b. Upon MOTION
*without prejudice to liability for CONTEMPT
WHEN 3RD PERSON FURNISHES SUPPORT
Such 3rd person may obtain writ of execution to enforce
his right to reimbursement (filed/enforced in the same
case).
*ORDER granting support pendent lite is INTERLOCUTORY –
BUT IMMEDIATELY EXECUTORY – EXCEPTION to the general
rule.
AMENDMENT
May be REDUCED/INCREASED @ ANY TIME depending on
the NECESSITIES of the RECIPIENT and the RESOURCES of
the PERSON TO FURNISH IT.
Sec. 6. Support in criminal cases.
In criminal actions where the civil liability includes support
for the offspring as a consequence of the crime and the civil
aspect thereof has not been waived, reserved or instituted
prior to its filing, the accused may be ordered to provide
support pendente lite to the child born to the offended party
allegedly because of the crime. The application therefor may
be filed successively by the offended party, her parents,
grandparents or guardian and the State in the corresponding
criminal case during its pendency, in accordance with the
procedure established under this Rule.
Sec. 7. Restitution.
When the judgment or final order of the court finds that the
person who has been providing support pendente lite is not
liable therefor, it shall order the recipient thereof to return
to the former the amounts already paid with legal interest
from the dates of actual payment, without prejudice to the
right of the recipient to obtain reimbursement in a separate
action from the person legally obliged to give the support.
Should the recipient fail to reimburse said amounts, the
person who provided through same may likewise seek
reimbursement thereof in a separate action from the person
legally obliged to give such support.
Contemplates a person who has been wrongly ordered
to provide support.
With legal interest from the date of actual payment
Real person obliged to give support.
SPECIAL CIVIL ACTIONS
KINDS:
1. Interpleader
2. Declaratory Relief [DR]
3. Review of Judgment/Final Orders or Resolutions
of the COMELEC/COA
4. Certiorari, Prohibition, Mandamus
5. Quo Warranto [QW]
6. Expropriation
7. Foreclosure of REM
8. Partition
9. Forcible Entry/Unlawful Detainer [FE/UD]
10. Contempt
INSTITUTED BY COMPLAINT INSTITUTED BY PETITION
By: RJ MARTINEZ
19 III – LLB, EH404, USC – College of Law
a. Interpleader a. DR
b. Foreclosure b. Review of Judgments
c. Partition and Final Orders or
d. FE/UD Resolutions of
COMELEC/COA
c. Certiorari, Prohibition,
Mandamus
d. QW
e. Contempt
RULE 62
INTERPLEADER
Section 1. When interpleader proper.
Whenever conflicting claims upon the same subject matter
are or may be made against a person who claims no interest
whatever in the subject matter, or an interest which in whole
or in part is not disputed by the claimants, he may bring an
action against the conflicting claimants to compel them to
interplead and litigate their several claims among
themselves.
INTERPLEADER – a remedy whereby a person who has
personal or real property in his possession, or an
obligation to render wholly or partially, without claiming
any right to either, comes to court and asks that the
persons who claim the said personal or real property or
who consider themselves entitled to demand
compliance with the obligation, be required to litigate
among themselves in order to determine finally who is
entitled to one or the other thing.
- Must be filed within a reasonable time after the
dispute has arisen without waiting to be sued by
either of the contending claimants.
REQUISITES:
1. Conflicting claims upon the same subject-matter
are or may be made against the plaintiff-in-
interpleader who claims no interest whatever in the
subject matter or an interest which in whole or in
part is not disputed by the claimants.
i.e.
sheriff may bring action for interpleader against
the claimants to a property he seized in the
foreclosure of a chattel mortgage.
Lesse in doubt as to who among the claimants is
entitled to the rent.
2. There are 2 or more claimants to the fund or thing in
dispute through separate and different interests.
i.e.
Warehouseman may require all known claimants
to the title to or possession of the goods
deposited in his warehouse to interplead.
3. The fund, ting, or duty over which the parties assert
adverse claims must be one and the same and
derived from the same source.
COUNTERCLAIM FOR INTERPLEADER
Defendant may file a counterclaim for interpleader
against the plaintiff and a 3rd party also claiming the
subject matter of the suit.
Based on Feria & Noche Book
 Provisional remedies & special civil actions
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LIEN or CHARGE upon the subject-matter of the action

*cognizable by the MTC
prescribed by BP 129.
PERSONAL PROP.
Not more than 300K (Non-
MM)
Not more than 400K (MM)
if within the value/limits
REAL PROP.
Not more than 20K (Non-
MM)
Not more than 50K (MM)
Costs and litigation expenses
Docket and other lawful fees
*unless the court shall order otherwise.
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES

**if subject matter is for the performance of an obligation
! RTC has jurisdiction (incapable of pecuniary
estimation).
Sec. 2. Order.
Upon the filing of the complaint, the court shall issue an
order requiring the conflicting claimants to interplead with
one another. If the interests of justice so require, the court
may direct in such order that the subject matter be paid or
delivered to the court.
Sec. 3. Summons.
Summons shall be served upon the conflicting claimants,
together with a copy of the complaint and order.
Sec. 4. Motion to dismiss.
Within the time for filing an answer, each claimant may file a
motion to dismiss on the ground of impropriety of the
interpleader action or on other appropriate grounds
specified in Rule 16. The period to file the answer shall be
tolled and if the motion is denied, the movant may file his
answer within the remaining period, but which shall not be
less than five (5) days in any event, reckoned from notice of
denial.
Grounds for M2D are same as in Rule 16 + Impropriety of
Interpleader.
Sec. 5. Answer and other pleadings.
Each claimant shall file his answer setting forth his claim
within fifteen (15) days from service of the summons upon
him, serving a copy thereof upon each of the other conflicting
claimants who may file their reply thereto as provided by
these Rules. If any claimant fails to plead within the time
herein fixed, the court may, on motion, declare him in
default and thereafter render judgment barring him from
any claim in respect to the subject matter.
The parties in an interpleader action may file counterclaims,
cross-claims, third-party complaints and responsive
pleadings thereto, as provided by these Rules.
Answer must be filed within 15D from service of summons.
- Failure to file Answer ! the court may render
claimant in default and render judgment (motion
is required).
*defaulting claimant must be notified of the
motion to declare him in default.
Sec. 6. Determination.
After the pleadings of the conflicting claimants have been
filed, and pre-trial has been conducted in accordance with
the Rules, the court shall proceed to determine their
respective rights and adjudicate their several claims.
Sec. 7. Docket and other lawful fees, costs and litigation
expenses as liens.
The docket and other lawful fees paid by the party who filed a
complaint under this Rule, as well as the costs and litigation
expenses, shall constitute a lien or charge upon the subject
matter of the action, unless the court shall order otherwise.
By: RJ MARTINEZ
20 III – LLB, EH404, USC – College of Law
Section 1. Who may file petition.
Any person interested under a deed, will, contract or other
written instrument, whose rights are affected by a statute,
executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation
thereof, bring an action in the appropriate Regional Trial
Court to determine any question of construction or validity
arising, and for a declaration of his rights or duties,
thereunder.
An action for the reformation of an instrument, to quiet title
to real property or remove clouds therefrom, or to
consolidate ownership under Article 1607 of the Civil Code,
may be brought under this Rule.
2 REMEDIES (provided for in R63)
1. DECLARATORY RELIEF wherein the court may refuse
to exercise the power to declare rights and to
construe instruments
2. SIMILAR REMEDIES wherein the court is bound to
render judgment.
SUBJECT MATTER
1. Deed
2. Will
3. Contract or other written instrument
4. Statute
5. Executive order
6. Regulation
7. Ordinance
PURPOSE – to ask the court to make a PROPER
INTERPRETATION of a contract, NOT to ask for
INJUNCTION, EXECUTION, or OTHER RELIEF BEYOND THE
ADJUDICATION OF THE LEGAL rights which are the subject
of controversy between the parties.
**RELIEF is CONFINED to the ACTUAL CONTROVERSY
within the court’s jurisdiction.
***also adjudicates legal rights, duties, or status of the
parties.
****RTC has EXCLUSIVE ORIGINAL JURISDICTION (not
within the original jurisdiction of the Supreme Court
and the CA).
REQUISITES FOR DR TO LIE
1. There must be a JUSTICIABLE CONTROVERSY.
Requisites:
i. REAL PARTIES IN INTEREST who assert
adverse claims and present ripe issue.
ii. An ACTIVE ANTAGONISITIC ASSERTION of a
legal right on one side and a DENIAL
THEREON on the other concerning a real
and not a mere theoretical question or
issue.
2. The controversy must be BETWEEN PERSONS WHOSE
INTERESTS ARE ADVERSE.
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer

The party seeking declaratory relief must have LEGAL Solicitor General – CONSTITUTION/NATIONAL Laws
INTEREST IN THE CONTROVERSY. Prosecutor/City (Municipal/Provincial) Attorney – Validity
3. The issue must be RIPE FOR JUDICIAL of Local Government ORDINANCE.
DETERMINATION. *but the OSG is to be notified and entitled to be heard
when ordinance is alleged to be UNCONSTITUTIONAL.
SOME INSTANCES WHERE DR DOES NOT LIE
a. Judicial declaration of citizenship Sec. 5. Court action discretionary.
b. Establishing illegitimate/legitimate filiation Except in actions falling under the second paragraph of
section 1 of this Rule, the court, motu proprio or upon
c. Resolving a political question motion, may refuse to exercise the power to declare rights
d. Terms of ordinance are not doubtful/ambiguous and to construe instruments in any case where a decision
e. Where contract has already been breached would not terminate the uncertainty or controversy which
(ordinary remedies obtain) gave rise to the action, or in any case where the declaration
or construction is not necessary and proper under the
f. Moot and academic questions
circumstances.

GR: declaration must stand by itself ! NO EXECUTORY WHEN COURT MAY REFUSE WHEN COURT MAY RENDER
PROCESS follows as of course (as opposed to a regular JUDGMENT
judgment where there is executory or coercive relief). 1. Decision would not 1. Declaration will serve
- but still they must involve a real controversy and will terminate the a useful purpose I
have the effect of res judicata and bind the parties. uncertainty or clarifying and settling
EXC: the court can grant such affirmative relief as may controversy which the legal relations in
be warranted by the evidence when: gave rise to the issue
1. when the allegations in the complaint are action. 2. When declaration will
sufficient to make out a case for specific 2. Where the terminate and afford
performance or recovery of property declaration is not relief from the
2. defendant does not raise an issue in the trial necessary and proper uncertainty, insecurity,
court to challenge the remedy or form of the under the and controversy
action availed of. circumstances. giving rise to the
proceeding.
3rd party complaints do not lie in a case of Special Civil
Action for DR. Sec. 6. Conversion into ordinary action.
But, a COMPULSORY COUNTERCLAIM is not proscribed If before the final termination of the case, a breach or
" When based on or arising from the same violation of an instrument or a statute, executive order or
transaction, deed, or contract on which the regulation, ordinance, or any other governmental regulation
should take place, the action may thereupon be converted
petition is based.
into an ordinary action, and the parties shall be allowed to
file such pleadings as may be necessary or proper.
Sec. 2. Parties.
All persons who have or claim any interest which would be
affected by the declaration shall be made parties; and no
DR to be converted to an ORDINARY ACTION ! when
declaration shall, except as otherwise provided in these there is a breach/violation (i.e of the
Rules, prejudice the rights of persons not parties to the contract/law/ordinance) before the final termination of
action. the case.
*parties shall be allowed to file such pleadings as may
Necessary parties must be joined/impleaded (non-joinder be necessary and proper.
is not a jurisdictional defect but may be a ground for
dismissal, see Sec. 5).
No declaration shall affect/prejudice the rights of RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS
persons not parties to the action.
OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS
AND THE COMMISSION ON AUDIT
Sec. 3. Notice on Solicitor General.
In any action which involves the validity of a statute, Section 1. Scope.
executive order or regulation, or any other governmental This Rule shall govern the review of judgments and final
regulation, the Solicitor General shall be notified by the party orders or resolutions of the Commission on Elections and
assailing the same and shall be entitled to be heard upon the Commission on Audit.
such question.

Sec. 4. Local government ordinances.

In any action involving the validity of a local government
ordinance, the corresponding prosecutor or attorney of the
local governmental unit involved shall be similarly notified
and entitled to be heard. If such ordinance is alleged to be
unconstitutional, the Solicitor General shall also be notified
and entitled to be heard.
Civil Service Commission is excluded ! RA 7902.
*now with Court of Appeals (exclusive appellate
jurisdiction).
Sec. 2. Mode of review.
A judgment or final order or resolution of the Commission
on Elections and the Commission on Audit may be brought
by the aggrieved party to the Supreme Court on certiorari
under Rule 65, except as hereinafter provided.

By: RJ MARTINEZ Based on Feria & Noche Book

21 III – LLB, EH404, USC – College of Law
 Provisional remedies & special civil actions
Reviewer
Via Rule 65 (not R45 or appeal via Certiorari).
Sec. 3. Time to file petition.
The petition shall be filed within thirty (30) days from notice
of the judgment or final order or resolution sought to be
reviewed. The filing of a motion for new trial or
reconsideration of said judgment or final order or
resolution, if allowed under the procedural rules of the
Commission concerned, shall interrupt the period herein
fixed. If the motion is denied, the aggrieved party may file the
petition within the remaining period, but which shall not be
less than five (5) days in any event, reckoned from notice of
denial.
To be filed within 30D from notice of judgment or final
order sought to be reviewed.
*if MNT or M4R is filed and denied ! petition shall be filed
within the remaining period BUT not less than 5D.
Sec. 4. Docket and other lawful fees.
Upon the filing of the petition, the petitioner shall pay to the
clerk of court the docket and other lawful fees and deposit
the amount of P500.00 for costs.
Sec. 5. Form and contents of petition.
The petition shall be verified and filed in eighteen (18) legible
copies. The petition shall name the aggrieved party as
petitioner and shall join as respondents the Commission
concerned and the person or persons interested in
sustaining the judgment, final order or resolution a quo. The
petition shall state the facts with certainty, present clearly
the issues involved, set forth the grounds and brief
arguments relied upon for review, and pray for judgment
annulling or modifying the questioned judgment, final order
or resolution. Findings of fact of the Commission supported
by substantial evidence shall be final and non-reviewable.
The petition shall be accompanied by a clearly legible
duplicate original or certified true copy of the judgment,
final order or resolution subject thereof, together with
certified true copies of such material portions of the record
as are referred to therein and other documents relevant and
pertinent thereto. The requisite number of copies of the
petition shall contain plain copies of all documents attached
to the original copy of said petition.
The petition shall state the specific material dates showing
that it was filed within the period fixed herein, and shall
contain a sworn certification against forum shopping as
provided in the third paragraph of section 3, Rule 46.
The petition shall further be accompanied by proof of service
of a copy thereof on the Commission concerned and on the
adverse party, and of the timely payment of docket and other
lawful fees.
The failure of petitioner to comply with any of the foregoing
requirements shall be sufficient ground for the dismissal of
the petition.
Commission concerned (COA/COMELEC) must be joined
as a party respondent in the petition along with the
person/s interested in sustaining the judgment.
Findings of fact by the Commissions ! non-reviewable.
Failure to comply with any of the requirements provided
for in Sec. 5 – ground for dismissal.
Sec. 6. Order to comment.
If the Supreme Court finds the petition sufficient in form and
substance, it shall order the respondents to file their
comments on the petition within ten (10) days from notice
By: RJ MARTINEZ
22 III – LLB, EH404, USC – College of Law
thereof; otherwise, the Court may dismiss the petition
outright. The Court may also dismiss the petition if it was
filed manifestly for delay, or the questions raised are too
unsubstantial to warrant further proceedings.
SC must find the petition sufficient in FORM and
SUBSTANCE.
" If it is, then respondents shall be asked to file
Comment within 10D.
Other Grounds for Dismissal by SC of Petition
a. Not sufficient in form and substance
b. Filed manifestly for delay
c. Raises questions which are too unsubstantial to
warrant further proceedings.
Sec. 7. Comments of respondents.
The comments of the respondents shall be filed in eighteen
(18) legible copies. The original shall be accompanied by
certified true copies of such material portions of the record
as are referred to therein together with other supporting
papers. The requisite number of copies of the comments
shall contain plain copies of all documents attached to the
original and a copy thereof shall be served on the petitioner.
No other pleading may be filed by any party unless required
or allowed by the Court.
No other pleading may be filed by any party unless the
SC requires or allows the same.
Sec. 8. Effect of filing.
The filing of a petition for certiorari shall not stay the
execution of the judgment or final order or resolution sought
to be reviewed, unless the Supreme Court shall direct
otherwise upon such terms as it may deem just.
GR: Filing (only) of the petition shall not stay execution.
EXC: where petitioner applies for a restraining order
and preliminary injunction with the SC.
Sec. 9. Submission for decision.
Unless the Court sets the case for oral argument, or requires
the parties to submit memoranda, the case shall be deemed
submitted for decision upon the filing of the comments on
the petition, or of such other pleadings or papers as may be
required or allowed, or the expiration of the period to do so.
THE CASE IS CONSIDERED SUBMITTED FOR DECISION
WHEN:
a. Comments and such other pleadings or papers as
may be required or allowed are filed
b. The period to file the aforementioned pleadings has
lapsed.
*SC may however set the case for oral argument or
require parties to submit memoranda.
RULE 65
CERTIORARI, PROHIBITION AND MANDAMUS
Section 1. Petition for certiorari.
When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its
or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no
appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer

or modifying the proceedings of such tribunal, board or - Where power is exercised in an arbitrary and
officer, and granting such incidental reliefs as law and justice despotic manner by reason of passion or
may require.
The petition shall be accompanied by a certified true copy of personal hostility.
the judgment, order or resolution subject thereof, copies of *when there is no law applicable ! TBO must
all pleadings and documents relevant and pertinent thereto, act in accordance with justice, reason, and
and a sworn certification of non-forum shopping as provided equity (otherwise, he acts with grave abuse of
in the third paragraph of section 3, Rule 46.
discretion).
CERTIORARI – a writ issued by a SUPERIOR court to an
3. THERE IS NO APPEAL OR ANY PLAIN, SPEEDY, AND
inferior court, board or officer [TBO] exercising judicial or
ADEQUATE [PSA] REMEDY IN THE ORDINARY COURSE
quasi-judicial functions whereby the record of a
OF LAW.
particular case is ordered to be elevated for review and
correction in matters of law.
No Appeal
- A prerogative writ (discretionary/never
a. When appeal does not lie (i.e. interlocutory
demandable as a matter of right).
order; decision of NLRC; direct contempt)
b. Right to appeal is lost (with or without
WHEN AVAILABLE (Instances)
appellant’s negligence) ! time to appeal
a. Motion for new trial wrongly denied.
has expired.
b. Petition for Probation denied.
c. Order granting execution pending appeal not
Not Adequate Remedy
founded on good reasons.
i.e.
d. Order is a patent nullity.
when order of execution already issued
interlocutory orders
where attachment has been wrongly levied
REQUISITES
*MERE AVAILABILITY of appeal will not make
1. TBO EXERCISES JUDICIAL/QUASI-JUDICIAL
an appeal an adequate remedy (and bar
FUNCTIONS.
certiorari).
The appeal must EQUALLY beneficial,
Judicial Function – presupposes the use of mental
speedy, and sufficient w/c will promptly
processes in the determination of law or fact, and
relieve petitioner of the injurious effects of
at times involves discretion as to how the power
the judgment or acts of the inferior TBO.
should be used.
BUT, Certiorari may be considered an
- To determine what the law is and what the
abandonment of appeal if there is
legal rights of the parties are with respect to a
incompatibility between the 2
matter in controversy.
remedies.
i.e. appeal on the decision of the
2. TBO ACTED WITHOUT OR IN EXCESS OF JURISDICTION
main case and a petition for certiorari
OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING
on the denial of a motion for new trial
TO LACK OR EXCESS OF JURISDICTION.
! ALLOWED!
Without Jurisdiction – when the court/TBO does is
Note:
not conferred with the general power to take
Certiorari (R65) cannot be made a substitute for an
cognizance of cases of the general class to which
appeal where the latter remedy is available (and equally
the particular case belongs and that its power has
beneficial, etc.)
not been properly invoked, or called into activity
i.e. it will not toll the running of the period to file an
(by filing appropriate pleading, etc.)
appeal/prevent judgment from becoming final.
*the allegations in the pleading must be
ACTIONABLE.
PRAYER in Certiorari
In Excess of Jurisdiction – when the TBO has
1. ANNULLING and MODIFYING the proceedings of the
jurisdiction (or its jurisdiction was properly invoked)
respondent TBO
but it has overstepped/transcended the same.
2. Granting such INCIDENTAL RELIEFS as law and justice
may require.
Grave Abuse of Discretion – when the act of the
i.e. court grants petition for certiorari AND directs
TBO was done in a capricious or whimsical
respondent court to dismiss the complaint.
exercise of judgment.
- Must be so patent and gross as to amount to an
ACCOMPANYING DOCUMENTS
evasion of a positive duty or to a virtual refusal to
1. Certified true copy of the judgment, order or
perform a duty enjoined by law.
resolution subject thereof

By: RJ MARTINEZ Based on Feria & Noche Book

23 III – LLB, EH404, USC – College of Law
 Provisional remedies & special civil actions
Reviewer

2. Copies of all pleadings and documents relevant REQUISITES

and pertinent thereto 1. TCBOP EXERCISE JUDICIAL, QUASI-JUDICIAL OR
3. Sworn certification of non-forum shopping MINISTERIAL FUNCTIONS.
2. TCBOP ACTED WITHOUT OR IN EXCESS OF
WRIT OF CERTIORARI APPEAL BY CERTIORARI JURISDICTION OF WITH GRAVE ABUSE OF DISCRETION
a. Question raised is WON a. Superior court can only AMOUNTING TO LACK OR EXCESS OF JURISDICTION.
the TBO acted without review questions or 3. NO APPEAL OR ANY PSA REMEDY IN THE ORDINARY
or in excess of errors of law as COURSE OF LAW.
jurisdiction or with grave decided or committed
abuse of discretion. by the lower court. PRAYER in Prohibition
b. For the correction of b. Court whose decision Commanding respondent to desist from further
errors or order is appealed proceeding in the action or matter specified therein.
c. Serves to keep an from has jurisdiction or Granting such other incidental reliefs as law and justice
inferior court within the has exercised the same may require.
bounds of its within its bounds (error
jurisdiction/relieve of judgment only). ACCOMPANYING DOCS
parties from their Same as Certiorari
arbitrary acts
d. The Court cannot PROHIBITION CERTIORARI
correct errors of fact a. A preventive remedy a. Corrective remedy
and law which the TBO issuing to restrain future used for the re-
may have committed. action and directed to examination of some
the court itself. action of an inferior
GR: M4R is necessary before petition for certiorari can be tribunal, and is directed
entertained. b. May be directed to the cause or
EXC: when a M4R is not necessary. against acts either proceeding in the
i.e. judicial, quasi-judicial lower court and not to
a. Issue raised is one purely of law or ministerial. the court itself.
b. Public interest is involved
c. Further delay would prejudice the interest of the b. May properly issue to
petitioner nullify only judicial or
d. Order is a patent nullity quasi-judicial acts.
e. Order is peremptory with a tone of finality
f. Execution has been ordered and relief is urgent. PROHIBITION INJUNCTION
Directed to the court itself, Directed only to the parties
Sec. 2. Petition for prohibition. commanding it to cease litigant, without in any
When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial from the exercise of a manner interfering with the
or ministerial functions, are without or in excess of its or his jurisdiction to which it has court.
jurisdiction, or with grave abuse of discretion amounting to no legal claim.
lack or excess of jurisdiction, and there is no appeal or any
other plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified WHERE PROHIBITION DOES NOT LIE (Instances)
petition in the proper court, alleging the facts with certainty a. Where function exercised by TCBOP is not judicial,
and praying that judgment be rendered commanding the quasi-judicial, or ministerial.
respondent to desist from further proceedings in the action b. Determine title to office (exc: Nacionalista Party v
or matter specified therein, or otherwise granting such Bautista ! Prohibition was allowed to prevent the
incidental reliefs as law and justice may require.
The petition shall likewise be accompanied by a certified true permanent designation of one already occupying
copy of the judgment, order or resolution subject thereof, the office in temporary capacity).
copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as Sec. 3. Petition for mandamus.
provided in the third paragraph of section 3, Rule 46. When any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law
PROHIBITION – legal remedy that prevents the unlawful specifically enjoins as a duty resulting from an office, trust,
and oppressive exercise of legal authority and provides or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled,
for a fair and orderly administration of justice. and there is no other plain, speedy and adequate remedy in
- Writ commands the person to whom it is directed the ordinary course of law, the person aggrieved thereby may
not to do something which the court is informed file a verified petition in the proper court, alleging the facts
he is about to do. with certainty and praying that judgment be rendered
*if the thing be already done, writ of commanding the respondent, immediately or at some other
time to be specified by the court, to do the act required to be
prohibition cannot undo it ! since affirmative done to protect the rights of the petitioner, and to pay the
action is required. damages sustained by the petitioner by reason of the
wrongful acts of the respondent.
By: RJ MARTINEZ Based on Feria & Noche Book
24 III – LLB, EH404, USC – College of Law
 Provisional remedies & special civil actions
Reviewer

The petition shall also contain a sworn certification of non- ACCOMPANIED BY ! Petition for Non-Forum Shopping.
forum shopping as provided in the third paragraph of section
3, Rule 46.
GR: Administrative Remedies must be EXHAUSTED before
MANDAMUS – is a command employed to compel the mandamus is available.
performance, when refused, of a ministerial duty, this EXC:
being its chief use, and not a discretionary duty. a. If party is in ESTOPPEL.
*mandamus may lie even if duty is discretionary ! but i.e. if by his conduct he has led the other party
only to compel TCBOP to act and not to act in a to believe that immediate judicial recourse is
particular way. available and acceptable.
**there must be a clear and certain legal right for b. Where pure QUESTIONS OF LAW are raised.
mandamus to lie. ! Exhaustion would be futile in this case because
i.e. not a proper remedy to compel university to questions of this character cannot be decided
compel degree with honors. with finality by the administrative officer).
MANDAMUS PROHIBITION
DISCRETION/DISCRETIONARY MINISTERIAL Has for its object to compel Has for its object that of
That part of the judicial One as to which nothing is an inferior tribunal to preventing an inferior
function which decides left to the discretion of the comply with a function tribunal from executing or
questions arising in the trial person who must perform. which the law specially continuing to execute an
of a cause, according to prescribes as a duty act in excess of its
the particular A simple and definite duty resulting from its office, jurisdiction, when there is
circumstances of each arising under conditions when there is no other PSA no other PSA remedy in the
case, and as to which the admitted or proved to remedy. ordinary course of law.
judgment of the court is exist and imposed by law.
uncontrolled by fixed rules MANDAMUS INJUNCTION
of law. Essentially REMEDIAL. Essentially a preventive
OR Functions to set in motion remedy.
The power to act according and to compel action. Functions to restrain motion
to the dictates of one’s own An active remedy. and to enforce inaction.
judgment or conscience Changes the status of Conservative remedy.
and not controlled by the affairs and to substitute Preserves matters in status
judgment or conscience of action for inaction. quo.
others.
Sec. 4. When and where to file the petition. The petition
shall be filed not later than sixty (60) days from notice of the
judgment, order or resolution. In case a motion for
REQUISITES reconsideration or new trial is timely filed, whether such
1. WHEN ANY TCBOP UNLAWFULLY NEGLECTS THE motion is required or not, the petition shall be filed not later
PERFORMANCE OF AN ACT WHICH THE LAW than sixty (60) days counted from the notice of the denial of
SPECIFICALLY ENJOINS AS A DUTY RESULTING FROM the motion.
If the petition relates to an act or an omission of a municipal
AN OFFICE, TRUST, OR STATION. trial court or of a corporation, a board, an officer or a
i.e. to compel judge to issue order of execution person, it shall be filed with the Regional Trial Court
upon failure of defendant in FE/UD case to pay exercising jurisdiction over the territorial area as defined by
deposits or rentals on time after pendency of the Supreme Court. It may also be filed with the Court of
appeal. Appeals or with the Sandiganbayan, whether or not the same
is in aid of the courts appellate jurisdiction. If the petition
2. WHEN ANY TCBOP UNLAWFULLY EXCLUDES ANOTHER involves an act or an omission of a quasi-judicial agency,
FROM THE USE AND ENJOYMENT OF A RIGHT OR unless otherwise provided by law or these rules, the petition
OFFICE TO WHICH THE OTHER IS ENTITLED. shall be filed with and be cognizable only by the Court of
i.e. to compel reinstatement of officers illegally Appeals.
In election cases involving an act or an omission of a
removed.
municipal or a regional trial court, the petition shall be filed
3. THERE IS NO OTHER PSA REMEDY IN THE ORDINARY exclusively with the Commission on Elections, in aid of its
COURSE OF LAW. appellate jurisdiction.

PRAYER in Mandamus
That judgment be rendered commanding the
respondent, immediately or at some other time to be
specified by the court to:
1. Do the act required to be done to protect the rights
of the petitioner
2. Pay the damages sustained by the petitioner by
reason of the wrongful acts of the respondent.
Within 60D from notice of judgment or order (or from
notice of the denial of M4R or MNT).
May be filed with:
a. RTC
Against lower courts, corporation, board, officer
or person which exercises functions within its
territorial area (writ may be enforced in any part
of the region).

By: RJ MARTINEZ Based on Feria & Noche Book

25 III – LLB, EH404, USC – College of Law
 Provisional remedies & special civil actions
Reviewer
b. Sandiganbayan
In aid of its appellate jurisdiction and over
petitions of similar nature arising out that may
arise in cases filed or which may be filed under
EO 1, 2, 14, 14-A.
**provided that the jurisdiction over these
petitions is not exclusive of the SC.
c. Court of Appeals
WON in aid of its appellate jurisdiction.
Acts or omissions of quasi-judicial agency.
d. Supreme Court
No extension of time to file the petition shall be granted.
EXC: for compelling reason and in no case exceeding
15D.
Sec. 5. Respondents and costs in certain cases.
When the petition filed relates to the acts or omissions of a
judge, court, quasi-judicial agency, tribunal, corporation,
board, officer or person, the petitioner shall join, as private
respondent or respondents with such public respondent or
respondents, the person or persons interested in sustaining
the proceedings in the court; and it shall be the duty of such
private respondents to appear and defend, both in his or
their own behalf and in behalf of the public respondent or
respondents affected by the proceedings, and the costs
awarded in such proceedings in favor of the petitioner shall
be against the private respondents only, and not against the
judge, court, quasi-judicial agency, tribunal, corporation,
board, officer or person impleaded as public respondent or
respondents.
Unless otherwise specifically directed by the court where the
petition is pending, the public respondents shall not appear
in or file an answer or comment to the petition or any
pleading therein. If the case is elevated to a higher court by
either party, the public respondents shall be included therein
as nominal parties. However, unless otherwise specifically
directed by the court, they shall not appear or participate in
the proceedings therein.
The court, judge, quasi-judicial agency etc. should be
joined as public respondents.
" It is the duty of the private respondents to
appear and defend them.
i.e. judge whose decision is challenged does
not have to file Answer or take an active part
in the proceeding (he is merely a nominal
party and has no personal interest nor
personality therein).
**UNLESS expressly directed by order of the
court.
Sec. 6. Order to comment.
If the petition is sufficient in form and substance to justify
such process, the court shall issue an order requiring the
respondent or respondents to comment on the petition
within ten (10) days from receipt of a copy thereof. Such
order shall be served on the respondents in such manner as
the court may direct, together with a copy of the petition and
any annexes thereto.
In petitions for certiorari before the Supreme Court and the
Court of Appeals, the provisions of section 2, Rule 56, shall
be observed. Before giving due course thereto, the court may
require the respondents to file their comment to, and not a
motion to dismiss, the petition. Thereafter, the court may
require the filing of a reply and such other responsive or
other pleadings as it may deem necessary and proper.
By: RJ MARTINEZ
26 III – LLB, EH404, USC – College of Law
If petition is sufficient in FORM and SUBSTANCE ! court
orders respondent to COMMENT within 10D.
In SC & CA ! Comment only, not a motion to dimiss.
*if INSUFFICIENT in form and substance ! court may
dismiss outright.
**Order to Comment = Summons.
Sec. 7. Expediting proceedings; injunctive relief.
The court in which the petition is filed may issue orders
expediting the proceedings, and it may also grant a
temporary restraining order or a writ of preliminary
injunction for the preservation of the rights of the parties
pending such proceedings. The petition shall not interrupt
the course of the principal case, unless a temporary
restraining order or a writ of preliminary injunction has
been issued, enjoining the public respondent from further
proceeding with the case.
The public respondent shall proceed with the principal case
within ten (10) days from the filing of a petition for certiorari
with a higher court or tribunal, absent a temporary
restraining order or a preliminary injunction, or upon its
expiration. Failure of the public respondent to proceed with
the principal case may be a ground for an administrative
charge.
GR: Petition shall not interrupt the course of the principal
case.
EXC: Unless, a TRO or a writ of Preliminary Injunction
has been issued.
Public respondent (judge) to proceed with main case
within 10D from filing of petition, when:
a. There is no TRO or PI
b. TRO or PI has expired.
**otherwise, he can be administratively charged.
Sec. 8. Proceedings after comment is filed.
After the comment or other pleadings required by the court
are filed, or the time for the filing thereof has expired, the
court may hear the case or require the parties to submit
memoranda. If, after such hearing or filing of memoranda or
upon the expiration of the period for filing, the court finds
that the allegations of the petition are true, it shall render
judgment for such relief to which the petitioner is entitled.
However, the court may dismiss the petition if it finds the
same patently without merit or prosecuted manifestly for
delay, or if the questions raised therein are too unsubstantial
to require consideration. In such event, the court may award
in favor of the respondent treble costs solidarily against the
petitioner and counsel, in addition to subjecting counsel to
administrative sanctions under Rules 139 and 139-B of the
Rules of Court.
The Court may impose motu proprio, based on res ipsa
loquitur, other disciplinary sanctions or measures on erring
lawyers for patently dilatory and unmeritorious petitions
for certiorari.
After submission of Comment and other pleadings, court
may:
a. Hear case
b. Order submission of Memoranda
and then DECIDE.
RELIEFS to which petitioner is entitled
1. Those prayed for.
2. Damages may also be awarded under “such other
reliefs” ! as long as the merits to determine the
award is before the court for its consideration.
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer

Nominal – in certiorari, prohibition, and

mandamus. RULE REFERS TO QW AGAINST
Exemplary – in mandamus, where defendant 1. Persons who usurp, intrude into, or unlawfully hold a
patently acted with vindictiveness or wantonness public office, position or franchise.
and not in the exercise of honest judgment. 2. Public officers who forfeit their office.
3. Associations which act as corporations without
Court may dismiss petition without hearing or filing of being legally incorporated or authorized.
memoranda, when:
a. patently without merit QUO WARRANTO MANDAMUS
b. prosecuted manifestly for delay Proper remedy if the Proper when the
c. questions raised therein are too unsubstantial to respondent claims any respondent unlawfully
require consideration. right to the office and excludes the petitioner
*if among those mentioned above, court may impose usurps, intrudes into, or from an office to which the
costs against lawyer and client solidarily. unlawfully holds it against latter is entitled without
**court may also motu propio impose other disciplinary the petitioner. usurping, intruding into, or
measures and sanctions to erring lawyer based on res unlawfully holding the
ipsa loquitor. Directed against the office.
person who actually holds
Sec. 9. Service and enforcement of order or judgment. the said office. Against the person who
A certified copy of the judgment rendered in accordance with
the last preceding section shall be served upon the court, excludes the petitioner
quasi-judicial agency, tribunal, corporation, board, officer or from the office in question
person concerned in such manner as the court may direct,
and disobedience thereto shall be punished as contempt. An QW IN THE OMNIBUS ELECTION CODE
execution may issue for any damages or costs awarded in
accordance with section 1 of Rule 39.
Sec. 253. PETITION FOR QUO WARRANTO. - Any
voter contesting the election of any Member of the
May be enforced in accordance with Section 11 of Rule Batasang Pambansa, regional, provincial, or city
39 (enforcement of special judgments). officer on the ground of ineligibility or of disloyalty to
Damages awarded in Mandamus ! in accordance the Republic of the Philippines shall file a sworn
with Sec.1 – 10 of R39. petition for quo warranto with the Commission
within ten days after the proclamation of the results
SC may under certain conditions render final judgment of the election.
and dispense with the usual procedure of remanding a Any voter contesting the election of any municipal or
case to the lower court for trial on the merits. barangay officer on the ground of ineligibility or of
*all facts needed for a complete determination of the disloyalty to the Republic of the Philippines shall file
whole controversy are already before the court. a sworn petition for quo warranto with the regional
trial court or metropolitan or municipal trial court,
RULE 66 respectively, within ten days after the proclamation
QUO WARRANTO of the results of the election.
Section 1. Action by Government against individuals. DIFFERENCE BETWEEN QW IN ELECTED AND APPOINTED
An action for the usurpation of a public office, position or
franchise may be commenced by a verified petition OFFICES
brought in the name of the Republic of the Philippines ELECTED APPOINTED
against: What is to be determined is What is to be determined is
(a) A person who usurps, intrudes into, or unlawfully the eligibility of the the legality of the
holds or exercises a public office, position or franchise; candidate elect. appointment.
(b) A public officer who does or suffers an act which, by
the provision of law, constitutes a ground for the
forfeiture of his office; or Abandonment of judicial office bars QW proceeding
(c) An association which acts as a corporation within the (one should not accept other public offices incompatible
Philippines without being legally incorporated or without with the position to which he seeks reinstatement).
lawful authority so to act. EXC: acceptance of a temporary positions under
abnormal conditions does not operate as
QUO WARRANTO – “by what authority” abandonment of the old position.
- a remedy or proceeding by which the sovereign
or state determines the legality of a claim which QW does not lie to remove a duly appointed officer who
a party asserts to the use or exercise of an office has duly qualified and entered upon the performance of
or franchise and ousts the holder from its his duties.
enjoyment, if the claim is not well founded, or if
the right to enjoy the privilege has been forfeited Sec. 2. When Solicitor General or public prosecutor must
or lost. commence action.
- Commenced via verified petition in the name of The Solicitor General or a public prosecutor, when
the Republic directed by the President of the Philippines, or when

By: RJ MARTINEZ Based on Feria & Noche Book

27 III – LLB, EH404, USC – College of Law
 Provisional remedies & special civil actions
Reviewer
upon complaint or otherwise he has good reason to
believe that any case specified in the preceding section
can be established by proof, must commence such action.
Sol-Gen or Public Prosecutor determines the sufficiency of
evidence to warrant the commencement of action.
- Involves exercise of discretion ! there has to be
good reason to believe that he can establish by
proof that the case is one of those specified in
Sec. 1.
Sec. 3. When Solicitor General or public prosecutor may
commence action with permission of court.
The Solicitor General or a public prosecutor may, with
the permission of the court in which the action is to be
commenced, bring such an action at the request and
upon the relation of another person; but in such case the
officer bringing it may first require an indemnity for the
expenses and costs of the action in an amount approved
by and to be deposited in the court by the person at whose
request and upon whose relation the same is brought.
Sol-Gen or prosecutor may require person at whose
request and upon whose relation the case is brought to
make a DEPOSIT in court ! to serve as indemnity
covering for expenses and cost of the action.
Sec. 4. When hearing had on application for permission
to commence action.
Upon application for permission to commence such
action in accordance with the next preceding section, the
court shall direct that notice be given to the respondent
so that he may be heard in opposition thereto; and if
permission is granted, the court shall issue an order to
that effect, copies of which shall be served on all
interested parties, and the petition shall then be filed
within the period ordered by the court.
Respondent shall be notified of the application for
permission to commence action ! so he may be heard.
Sec. 5. When an individual may commence such an
action.
A person claiming to be entitled to a public office or
position usurped or unlawfully held or exercised by
another may bring an action therefor in his own name.
INDIVIDUAL may commence action in his own name !
when he claims to be entitled to a public office or
position usurped or unlawfully held or exercised by
another.
- If it be shown that the individual has no right to
the office ! the action can be dismissed (no
legal ground upon which the case may
proceed).
*merely asserting a right to be APPOINTED is not
enough.
Sec. 6. Parties and contents of petition against
usurpation.
When the action is against a person for usurping a public
office, position or franchise, the petition shall set forth
the name of the person who claims to be entitled thereto,
if any, with an averment of his right to the same and that
the respondent is unlawfully in possession thereof. All
persons who claim to be entitled to the public office,
By: RJ MARTINEZ
28 III – LLB, EH404, USC – College of Law
position or franchise may be made parties, and their
respective rights to such public office, position or
franchise determined, in the same action.
Sec. 7. Venue.
An action under the preceding six sections can be
brought only in the Supreme Court, the Court of Appeals,
or in the Regional Trial Court exercising jurisdiction over
the territorial area where the respondent or any of the
respondents resides, but when the Solicitor General
commences the action, it may be brought in a Regional
Trial Court in the City of Manila, in the Court of Appeals,
or in the Supreme Court.
COURTS THAT HAVE JURISDICTION
a. Supreme Court – original
b. Court of appeals – original and concurrent with SC
c. RTC – original and concurrent with SC (territorial
jurisdiction over area where the respondent resides).
*when Sol-Gen commences action ! may be in
the RTC of City of Manila, CA, or SC).
d. Sandiganbayan – original jurisdiction out of EO 1, 2,
14, and 14-A but must be in aid of its appellate
jurisdiction (and not within those falling within the
exclusive jurisdiction of SC).
**thought the SC has original and concurrent jurisdiction
with RTC ! actions for QW will be left to the jurisdiction of
the trial court where questions of fact are involved.
Sec. 8. Period for pleadings and proceedings may be
reduced; action given precedence.
The court may reduce the period provided by these Rules
for filing pleadings and for all other proceedings in the
action in order to secure the most expeditious
determination of the matters involved therein consistent
with the rights of the parties. Such action may be given
precedence over any other civil matter pending in the
court.
Sec. 9. Judgment where usurpation found.
When the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising a
public office, position or franchise, judgment shall be
rendered that such respondent be ousted and altogether
excluded therefrom, and that the petitioner or relator, as
the case may be, recover his costs. Such further judgment
may be rendered determining the respective rights in and
to the public office, position or franchise of all the parties
to the action as justice requires.
RELATOR – the person at whose requrest and upon whose
relation the Sol-Gen or public prosecutor brings an action
of QW with the permission of the court.
The court will not pass upon the right of the defendant
(respondent) if the plaintiff is unable to prove his right (the
case is dismissible under this ground – inability to show
right to the office).
EXC: if the case was commenced by the Sol-Gen or
public prosecutor ! not necessary that there be a
person claiming to be entitled to the office alleged
to have been usurped.
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer
Sec. 10. Rights of persons adjudged entitled to public
office; delivery of books and papers; damages.
If judgment be rendered in favor of the person averred in
the complaint to be entitled to the public office he may,
after taking the oath of office and executing any official
bond required by law, take upon himself the execution of
the office, and may immediately thereafter demand of the
respondent all the books and papers in the respondent’s
custody or control appertaining to the office to which the
judgment relates. If the respondent refuses or neglects to
deliver any book or paper pursuant to such demand, he
may be punished for contempt as having disobeyed a
lawful order of the court. The person adjudged entitled to
the office may also bring action against the respondent to
recover the damages sustained by such person by reason
of the usurpation.
IF ADJUDGED TO BE ENTITLED:
1. Take oath of office
2. Execute any bond required
3. Take upon himself the execution of the office
4. Demand from the respondent all book and papers
in his control appertaining to the office
*if respondent refuses -- contempt
ACTUAL/COMPENSATORY damages may be granted in
all election contests or in QW proceedings in
accordance with law (Omnibus Election Code).
Sec. 11. Limitations.
Nothing contained in this Rule shall be construed to
authorize an action against a public officer or employee
for his ouster from office unless the same be commenced
within one (1) year after the cause of such ouster, or the
right of the petitioner to hold such office or position,
arose; nor to authorize an action for damages in
accordance with the provisions of the next preceding
section unless the same be commenced within one (1)
year after the entry of the judgment establishing the
petitioner’s right to the office in question.
QW (and claim for back salaries and damages) must be
filed within 1 year form the date the petitioner was ousted
from his position.
EXC: where there was continued assurance from the
government through its responsible officials that led
the petitioner to take his time and wait for the
government to fulfill its commitment.
Resort to administrative remedies does not toll the running
of the 1 year period.
QW under election code must be filed within 10D after
the proclamation of the results.
But the filing with COMELEC of petition to annul or to
suspend the proclamation of any candidate suspends
the running of the period to file an election protest or
QW.
Sec. 12. Judgment for costs.
In an action brought in accordance with the provisions of
this Rule, the court may render judgment for costs
against either the petitioner, the relator, or the
respondent, or the person or persons claiming to be a
By: RJ MARTINEZ
29 III – LLB, EH404, USC – College of Law
corporation, or may apportion the costs, as justice
requires.
RULE 67
EXPROPRIATION
Section 1. The complaint.
The right of eminent domain shall be exercised by the
filing of a verified complaint which shall state with
certainty the right and purpose of expropriation,
describe the real or personal property sought to be
expropriated, and join as defendants all persons owning
or claiming to own, or occupying, any part thereof or
interest therein, showing, so far as practicable, the
separate interest of each defendant. If the title to any
property sought to be expropriated appears to be in the
Republic of the Philippines, although occupied by private
individuals, or if the title is otherwise obscure or
doubtful so that the plaintiff cannot with accuracy or
certainty specify who are the real owners, averment to
that effect shall be made in the complaint.
EXPROPRIATION (Eminent Domain) – refers to the power
of a sovereign state to take or to authorize the taking of
any property within its jurisdiction for the public use
without the owner’s consent.
- An inherent political right founded on common
necessity and interest.
- By delegation, may also be possessed by the
LGUs, other public entities, and public utilities.
- Necessity of a public charity/purpose must exist
(essential requisite).
! Necessity – a reasonable or practical
necessity, not absolute, such as would
combine the greatest benefit to the public
with the least inconvenience and expense to
the condemning party and property owner
consistent with such benefit.
i.e. no necessity to expropriate land intended
for the development of a university with an
enrolment of 9000 students; no necessity to
expropriate when there is already a contract
bet. landowner and city.
- Property already devoted to public use may not
be subject to expropriation.
CONSTITUTIONAL LIMITATIONS
Due Process (Art. III, Sec. 1)
Just Compensation [JC] (Art. III, Sec. 9)
2 STAGES IN ACTION FOR EXPROPRIATION
1. Determination of the authority of the plaintiff to
exercise the power of eminent domain and the
propriety of its exercise in the context of the facts
involved in the suit.
" Ends with an order of condemnation or
dismissal of an action.
2. Determination by the court of the just compensation
for the property sought to be taken (with the
assistance of not more than 3 commissioners).
JURISDICTION ! RTC (incapable of pecuniary estimation
– regardless of the value of the property).
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer
Sec. 2. Entry of plaintiff upon depositing value with
authorized government depositary.
Upon the filing of the complaint or at any time thereafter
and after due notice to the defendant, the plaintiff shall
have the right to take or enter upon the possession of the
real property involved if he deposits with the authorized
government depositary an amount equivalent to the
assessed value of the property for purposes of taxation to
be held by such bank subject to the orders of the court.
Such deposit shall be in money, unless in lieu thereof the
court authorizes the deposit of a certificate of deposit of a
government bank of the Republic of the Philippines
payable on demand to the authorized government
depositary.
If personal property is involved, its value shall be
provisionally ascertained and the amount to be deposited
shall be promptly fixed by the court.
After such deposit is made the court shall order the
sheriff or other proper officer to forthwith place the
plaintiff in possession of the property involved and
promptly submit a report thereof to the court with
service of copies to the parties.
ASSESSED VALUE - that indicated in the tax declaration.
- This effectively removes the discretion of the
court in determining the provisional value fo the
real property.
PRIOR HEARING – not required before immediate
possession can be granted to the Republic ! all that is
required is NOTICE and DEPOSIT with the PNB (or any
authorized government depositary) of the amount
equivalent to the assessed value.
*Defenses raised by the owners can be
considered in the trial on the merits.
PURPOSE of Preliminary Deposit
1. Pre-payment upon the value of the property, if
finally expropriated.
2. Indemnity against damage in the event the
proceeding fail to consummate.
Sec. 3. Defenses and objections.
If a defendant has no objection or defense to the action or
the taking of his property, he may file and serve a notice
of appearance and a manifestation to that effect,
specifically designating or identifying the property in
which he claims to be interested, within the time stated in
the summons. Thereafter, he shall be entitled to notice of
all proceedings affecting the same.
If a defendant has any objection to the filing of or the
allegations in the complaint, or any objection or defense
to the taking of his property, he shall serve his answer
within the time stated in the summons. The answer shall
specifically designate or identify the property in which he
claims to have an interest, state the nature and extent of
the interest claimed, and adduce all his objections and
defenses to the taking of his property. No counterclaim,
cross-claim or third-party complaint shall be alleged or
allowed in the answer or any subsequent pleading.
A defendant waives all defenses and objections not so
alleged but the court, in the interest of justice, may
permit amendments to the answer to be made not later
than ten (10) days from the filing thereof. However, at the
trial of the issue of just compensation, whether or not a
defendant has previously appeared or answered, he may
By: RJ MARTINEZ
30 III – LLB, EH404, USC – College of Law
present evidence as to the amount of the compensation to
be paid for his property, and he may share in the
distribution of the award.
If NO OBJECTION or DEFENSE ! one may so manifest and
shall be entitled to notice of the proceedings for
determining JC.
If there is OBJECTION or DEFENSE ! shall file Answer
containing all objections and defenses (defendant
waives all defenses and objections not so alleged – but
the court, in the interest of justice, may permit
amendments to the Answer not later than 10D from
filing).
If OBJECTION and DEFENSES OVERRULED ! court shall
issue an order of expropriation from which defendant
may appeal. He also has a right to present evidence on
the amount of JC.
*WON defendant has filed Answer of previously
appeared ! he may present evidence as to the amount
of JC for his property.
**no counter-claim, cross-claim or 3rd party complaint is
allowed in order to avoid delay in the proceedings.
Sec. 4. Order of expropriation.
If the objections to and the defenses against the right of
the plaintiff to expropriate the property are overruled, or
when no party appears to defend as required by this Rule,
the court may issue an order of expropriation declaring
that the plaintiff has a lawful right to take the property
sought to be expropriated, for the public use or purpose
described in the complaint, upon the payment of just
compensation to be determined as of the date of the
taking of the property or the filing of the complaint,
whichever came first.
A final order sustaining the right to expropriate the
property may be appealed by any party aggrieved
thereby. Such appeal, however, shall not prevent the
court from determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall
not be permitted to dismiss or discontinue the
proceeding except on such terms as the court deems just
and equitable.
Before order of expropriation ! hearing is required.
Court may NOT inquire into the purpose of the legislation
granting expropriation (under proper authority; for some
specified public purpose).
EXC: when legislature grants general authority to a
municipal corporation to expropriate private land for
public purposes ! court may make inquiry and hear
proof to determine WON lands are PRIVATE and
purpose is PUBLIC.
JUST COMPENSATION – determined as of the DATE OF THE
TAKING of the property or the FILING OF THE COMPLAINT
(whichever came first).
WHAT CONSTITUTES VALID TAKING
1. Expropriator must enter a private property
2. For more than a momentary period
3. Under warrant or color of legal authority
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 Provisional remedies & special civil actions
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4. Property must be devoted to a public use or
otherwise informally appropriated or injuriously
affected
5. Utilization of the property for public use must be in
such a way as to oust the owner and deprive him of
all beneficial enjoyment of the property.
PERIOD TO APPEAL
No less than 2 appeals are allowed:
a. From the order of expropriation; and
b. From the order of the determining of JC.
! RECORD ON APPEAL must be filed within 30D.
Sec. 5. Ascertainment of compensation.
Upon the rendition of the order of expropriation, the
court shall appoint not more than three (3) competent
and disinterested persons as commissioners to ascertain
and report to the court the just compensation for the
property sought to be taken. The order of appointment
shall designate the time and place of the first session of
the hearing to be held by the commissioners and specify
the time within which their report shall be submitted to
the court.
Copies of the order shall be served on the parties. Objections
to the appointment of any of the commissioners shall be filed
with the court within ten (10) days from service, and shall be
resolved within thirty (30) days after all the commissioners
shall have received copies of the objections.
APPOINTMENT OF COMMISSIONERS ! upon rendition of
the order of expropriation.
*the 3 commissioners shall determine the JC for the
property sought to be expropriated even if an appeal
is taken on the order of expropriation.
MARKET VALUE – price which the property will bring when
it is offered for sale by one who desires but is not obliged
to sell it and is bought by one who is under no necessity
of having it.
*ergo, the landowner should not take advantage of
the necessity which prompts the government to buy
neither should the government take advantage and
take the property at less than the price it is reasonably
worth.
DETERMINATION OF JC – a JUDICIAL function.
" Executive/legislative may make the initial
determination but when a party claims violation
of the guarantee in the Bill of Rights NO
executive order or statute can mandate that its
own determination shall prevail over the court’s
findings.
Art. 1250 of NCC (extraordinary inflation) does not apply
to expropriation proceedings ! said article applies only
where the obligation arises from contract/agreement
and NOT where it arises from LAW.
Sec. 6. Proceedings by commissioners.
Before entering upon the performance of their duties, the
commissioners shall take and subscribe an oath that they
will faithfully perform their duties as commissioners,
which oath shall be filed in court with the other
By: RJ MARTINEZ
31 III – LLB, EH404, USC – College of Law
proceedings in the case. Evidence may be introduced by
either party before the commissioners who are
authorized to administer oaths on hearings before them,
and the commissioners shall, unless the parties consent
to the contrary, after due notice to the parties to attend,
view and examine the property sought to be expropriated
and its surroundings, and may measure the same, after
which either party may, by himself or counsel, argue the
case. The commissioners shall assess the consequential
damages to the property not taken and deduct from such
consequential damages the consequential benefits to be
derived by the owner from the public use or purpose of
the property taken, the operation of its franchise by the
corporation or the carrying on of the business of the
corporation or person taking the property. But in no case
shall the consequential benefits assessed exceed the
consequential damages assessed, or the owner be
deprived of the actual value of his property so taken.
Owner of the property entitled to recover
1. Fair and full value of the lot (as of the time when
possession was actually taken)
2. (Consequential DAMAGES + ATTORNEY’S FEES) less
consequential BENEFITS, if any, on the aggregate
sum due to the owner from and after the date of
actual taking until payment is made.
*but payment of interest on the amount is not
allowed for the period where owner received rentals
from the condemnor.
Commissioners may resort to their knowledge of the
elements which affect the assessment obtained from
their view and examination of the property when
testimony as to value and damages is conflicting.
*but award must still be supported by evidence
adduced at the hearings and made of record.
Sec. 7. Report by commissioners and judgment
thereupon.
The court may order the commissioners to report when
any particular portion of the real estate shall have been
passed upon by them, and may render judgment upon
such partial report, and direct the commissioners to
proceed with their work as to subsequent portions of the
property sought to be expropriated, and may from time
to time so deal with such property. The commissioners
shall make a full and accurate report to the court of all
their proceedings, and such proceedings shall not be
effectual until the court shall have accepted their report
and rendered judgment in accordance with their
recommendations. Except as otherwise expressly
ordered by the court, such report shall be filed within
sixty (60) days from the date the commissioners were
notified of their appointment, which time may be
extended in the discretion of the court. Upon the filing of
such report, the clerk of the court shall serve copies
thereof on all 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.
Commissioners cannot disregard the evidence and
substitute their opinion as to the value of the property.
“GREAT WEIGHT” is to be given to the estimated value
made by the appraisers. Such will not be set aside, unless:
a. Error is plainly manifest
Based on Feria & Noche Book
 Provisional remedies & special civil actions
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b. It is apparent that injustice has been done
c. Commissioners have clearly gone astray or adopted
erroneous principles
d. Commissioners acted upon wrong principles, or their
award is grossly inadequate
e. Award is palpably excessive or inadequate
f. Award is grossly inadequate or unequal.
Proceedings shall not be effectual until the court shall
have accepted their report and rendered judgment in
accordance with their recommendations.
Report shall be filed within sixty (60) days from the date
the commissioners were notified of their appointment,
*may be extended in the discretion of the court.
**interested parties, with notice, are allowed ten (10)
days within which to file objections to the findings of the
report.
Sec. 8. Action 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 all the interested
parties have filed their objections to the report or their
statement of agreement therewith, the court may, after
hearing, accept the report and render judgment in
accordance therewith; or, for cause shown, it may
recommit the same to the commissioners for further
report of facts; or it may set aside the report and appoint
new commissioners; or it may accept the report in part
and reject it in part; and it may make such order or
render such judgment as shall secure to the plaintiff the
property essential to the exercise of his right of
expropriation, and to the defendant just compensation
for the property so taken.
Where parties agree to the commissioner’s award !
court has the duty to confirm the report (unless there
appears some reason touching the public interest).
The court may diminish or increase the commission’s
amount of award when it is grossly excessive or generally
insufficient (even if there appears to be no fraud or
prejudice on the part of the commissioners).
When court cannot approve the commissioner’s report,
the court is permitted to act upon the report in one of
several ways, at its own discretion:
a. When commissioners refuse to hear competent
evidence material to the case, then all the
evidence in the case would not be before the
court.
b. If commissioners are charged of improper conduct,
fraud, prejudice, and this charge is sustained.
c. When the commissioners have applied illegal
principles to the evidence submitted to them; or
they have used an improper rule of assessment in
arriving at the amount of the award.
Sec. 9. Uncertain ownership; conflicting claims.
If the ownership of the property taken is uncertain, or
there are conflicting claims to any part thereof, the court
may order any sum or sums awarded as compensation
for the property to be paid to the court for the benefit of
the person adjudged in the same proceeding to be
entitled thereto. But the judgment shall require the
By: RJ MARTINEZ
32 III – LLB, EH404, USC – College of Law
payment of the sum or sums awarded to either the
defendant or the court before the plaintiff can enter upon
the property, or retain it for the public use or purpose if
entry has already been made.
Sec. 10. Rights of plaintiff after judgment and payment.
Upon payment by the plaintiff to the defendant of the
compensation fixed by the judgment, with legal interest
thereon from the taking of the possession of the property,
or after tender to him of the amount so fixed and
payment of the costs, the plaintiff shall have the right to
enter upon the property expropriated and to appropriate
it for the public use or purpose defined in the judgment,
or to retain it should he have taken immediate possession
thereof under the provisions of section 2 hereof. If the
defendant and his counsel absent themselves from the
court, or decline to receive the amount tendered, the
same shall be ordered to be deposited in court and such
deposit shall have the same effect as actual payment
thereof to the defendant or the person ultimately
adjudged entitled thereto.
When title passes ! upon the payment of indemnity or
the compensation fixed by the judgment (with legal
interest thereon from the taking of the possession of the
property).
Sec. 11. Entry not delayed by appeal; effect of reversal.
The right of the plaintiff to enter upon the property of the
defendant and appropriate the same for public use or
purpose shall not be delayed by an appeal from the
judgment. But if the appellate court determines that
plaintiff has no right of expropriation, judgment shall be
rendered ordering the Regional Trial Court to forthwith
enforce the restoration to the defendant of the possession
of the property, and to determine the damages which the
defendant sustained and may recover by reason of the
possession taken by the plaintiff.
Receipt by defendant of compensation does not bar him
from filing an appeal.
" Plaintiff may execute the judgment once it is
obtained but it must pay the value of the
property as assessed by the court.
*Acceptance by the landowner of the money
awarded is merely the consideration for the
privilege accorded to the plaintiff to take the
property from the owner before the final
determination of the expropriation action.
CONSIDERATIONS IN DETERMINING AMOUNT OF
DAMAGES DEFENDANT MAY RECOVER
a. Loss resulting from the dispossession of the land
b. The loss resulting from the deprivation of the use and
occupation of the land
c. The expenses incurred during the pendency of the
action, including attorney’s fees
d. The destruction of buildings, canals, and growing
crops at the time of the occupation of the land by
the plaintiff.
e. All of the damages of whatever kind or character
which the defendant may be able to prove and
which have been occasioned by virtue of the
institution of the action.
Based on Feria & Noche Book
 Provisional remedies & special civil actions
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Damages (including those caused before the JURISDICTION

commencement of the expropriation suit) should be MTC ! if assessed value of real estate not more than
recovered in the same action for expropriation. P20K (Non-MM) or P50K(MM) and amount of mortgage
debt is not more than P300K or P400K respectively.
Sec. 12. Costs, by whom paid. RTC ! if assessed value of real estate is more than P20K
The fees of the commissioners shall be taxed as a part of
(non-MM) or more than P50K (MM) and the amount of
the costs of the proceedings. All costs, except those of
rival claimants litigating their claims, shall be paid by the the mortgage debt is more than P300K or P400K
plaintiff, unless an appeal is taken by the owner of the respectively.
property and the judgment is affirmed, in which event the
costs of the appeal shall be paid by the owner. VENUE
For foreclosure of real estate mortgage ! shall be
Sec. 13. Recording judgment, and its effect. commenced in the proper court which has territorial
The judgment entered in expropriation proceedings shall
jurisdiction over the area:
state definitely, by an adequate description, the
particular property or interest therein expropriated, and a. Where the property involved
the nature of the public use or purpose for which it is b. Where a portion thereof is situated
expropriated. When real estate is expropriated, a
certified copy of such judgment shall be recorded in the MORTGAGE CREDITOR – CANNOT APPROPRIATE the
registry of deeds of the place in which the property is things given by way of pledge or mortgage.
situated, and its effect shall be to vest in the plaintiff the *any stipulation to the contrary is null and void.
title to the real estate so described for such public use or
purpose.
OTHER PRELIMINARY REMEDIES Available to Mortgage
WHEN PUBLIC PURPOSE FOR WHICH THE LAND WAS Creditor in case of Foreclosure
EXPROPRIATED IS ABANDONED a. Preliminary attachment
a. When land acquired IN FEE SIMPLE b. Receivership
UNCONDITIONALLY – former owner retains no rights
in the land ! NO REVERSION. REMEDIES OF MORTGAGE CREDITOR AGAINST INSOLVENT
b. If land was expropriated for a PARTICULAR PURPOSE DEBTOR
(i.e. for a public street) and ended or abandoned – a. Take part in the insolvency proceedings and
expropriation was granted upon said condition ! recover his credit against the insolvent
former REACQUIRES the property so expropriated. b. Institute, maintain, and prosecute a separate suit
against the insolvent debtor for the recovery of his
Sec. 14. Power of guardian in such proceedings. secured credit until he obtains a final judgment, and
The guardian or guardian ad litem of a minor or of a he may enforce this judgment against the property
person judicially declared to be incompetent may, with mortgaged to him in the manner prescribed by law.
the approval of the court first had, do and perform on
*if insolvency court has acquired jurisdiction over
behalf of his ward any act, matter, or thing respecting the
expropriation for public use or purpose of property the estate of the insolvent debtor ! no
belonging to such minor or person judicially declared to foreclosure allowed without the knowledge and
be incompetent, which such minor or person judicially previous consent of the insolvency court.
declared to be incompetent could do in such proceedings
if he were of age or competent. *Personal action for the RECOVERY OF DEBT amounts to a
WAIVER of RIGHT TO FORECLOSE (creditor must choose
RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE either, not both).
Personal action for recovery will leave open to him all
Section 1. Complaint in action for foreclosure. the properties of the debtor for attachment and
In an action for the foreclosure of a mortgage or other execution (including the mortgaged prop itself).
encumbrance upon real estate, the complaint shall set If he pursues foreclosure, he can still go after other
forth the date and due execution of the mortgage; its properties for the deficiency.
assignments, if any; the names and residences of the
mortgagor and the mortgagee; a description of the
mortgaged property; a statement of the date of the note PARTIES DEFENDANT IN A FORECLOSURE COMPLAINT
or other documentary evidence of the obligation secured INDISPENSABLE NECESSARY
by the mortgage, the amount claimed to be unpaid a. The mortgage debtor a. All persons having or
thereon; and the names and residences of all persons b. The mortgagor or owner claiming an interest in
having or claiming an interest in the property of the mortgaged the property
subordinate in right to that of the holder of the mortgage,
all of whom shall be made defendants in the action. property, if not the subordinate in right to
debtor that of the holder of the
Limited to JUDICIAL FORECLOSURE OF REAL ESTATE c. The executor or mortgage
MORTGAGE. administrator of the b. A subsequent attaching
*May be applied to a judicial foreclosure of chattel deceased creditor
mortgage. d. The executor or c. A purchaser of the
administrator of a mortgaged property

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33 III – LLB, EH404, USC – College of Law
 Provisional remedies & special civil actions
Reviewer
deceased owner of the
property mortgaged
with the approval of the
court
e. The heir to whom the
mortgaged property
has been adjudicated
*where a 2nd mortgagee is not made a party to a
proceeding to foreclose the 1st mortgage ! an
independent foreclosure proceeding may be maintained
against him by the creditor in the 1st mortgage, wherein
the court should require the 2nd mortgagee to redeem
from the 1st within 3 months, under penalty of being
debarred from the exercise of his right to redeem.
**failure to join subordinate lienholder or subsequent
purchaser or both ! the foreclosure is ineffective as
against them (there remains in their favor the
unforeclosed equity of redemption).
BUT, the foreclosure is valid between the parties to
the suit.
***1st mortgagee may be joined as party defendant in
the foreclosure action by the 2nd mortgagee ! BUT,
generally, the debt ifo the 1st mortgagee should already
be due and demandable.
" If the 1st mortgagee is not joined he may file a
complaint-in-intervention (but even if he is not
joined or he does not intervene, the property
remains subject to his lien).
Prohibition to enter into a 2nd mortgage without the
consent of the 1st mortgagee ! VALID!
*but a stipulation forbidding owners from alienating
the mortgaged immovable – void!
Sec. 2. Judgment on foreclosure for payment or sale.
If upon the trial in such action the court shall find the
facts set forth in the complaint to be true, it shall
ascertain the amount due to the plaintiff upon the
mortgage debt or obligation, including interest and other
charges as approved by the court, and costs, and shall
render judgment for the sum so found due and order that
the same be paid to the court or to the judgment obligee
within a period of not less than ninety (90) days nor more
than one hundred twenty (120) days from the entry of
judgment, and that in default of such payment the
property shall be sold at public auction to satisfy the
judgment.
The court shall order the mortgagor to pay the sum due
to the mortgagee/creditor for a period not less than 90D
but not more than 120D from the entry of judgment.
" Sale of the property at public auction shall be
done in default of such payment within the
specified period.
Sec. 3. Sale of mortgaged property; effect.
When the defendant, after being directed to do so as
provided in the next preceding section, fails to pay the
amount of the judgment within the period specified
therein, the court, upon motion, shall order the property
to be sold in the manner and under the provisions of Rule
39 and other regulations governing sales of real estate
under execution. Such sale shall not affect the rights of
By: RJ MARTINEZ
34 III – LLB, EH404, USC – College of Law
persons holding prior encumbrances upon the property
or a part thereof, and when confirmed by an order of the
court, also upon motion, it shall operate to divest the
rights in the property of all the parties to the action and
to vest their rights in the purchaser, subject to such rights
of redemption as may be allowed by law.
Upon the finality of the order of confirmation or upon the
expiration of the period of redemption when allowed by
law, the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the possession
of the property unless a third party is actually holding the
same adversely to the judgment obligor. The said
purchaser or last redemptioner may secure a writ of
possession, upon motion, from the court which ordered
the foreclosure.
As also provided in the preceding section, in default of
payment by the debtor-mortgagor within the period
specified ! plaintiff-mortgagee may move for the sale of
the property.
Notice of the Sale on Execution is required to be given to
the judgment-obligor ! under Sec. 15(d) R39.
GROUNDS FOR SETTING ASIDE SALE
Price is greatly inadequate as to shock the conscience or
when there are additional circumstances against its
fairness.
*there must be showing that a better price can be
obtained in the event of a regular sale.
MOTION FOR CONFIRMATION OF SALE
! After the foreclosure sale (with notice to all the parties
to the action).
! Notice and Hearing are essential otherwise the
confirmation of sale is void!
Order of Confirmation ! cuts off all interests of the
mortgagor in the property sold and vests them in the
purchaser, subject to such rights of redemption as may
be allowed by law.
*a final order (hence, appealable!)
REMEDY AVAILABLE BEFORE FINALITY OF ORDER OF
CONFIRMATION
Equity of redemption ! the opportunity that the court
may grant to the mortgage debtor, 2nd mortgagee, and
subsequent attaching creditor or purchaser to pay the
proceeds of the sale (and prevent the confirmation of
the sale).
*equity of redemption not affected by sale by
mortgagee of the property before confirmation.
GR: in a judicial foreclosure, there is no right of
redemption.
EXC: when the mortgagee is a bank, quasi-bank or
trust entity, the mortgagor has a right of redemption
for both judicial and extra-judicial foreclosure of any
mortgage or real estate.
RULES IN GENERAL BANKING LAW OF 2000 (where
mortgagee is a banking or financial institution)
MORTGAGOR: MORTGAGOR:
Based on Feria & Noche Book
 Provisional remedies & special civil actions
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JURIDICAL PERSON INDIVIDUAL RULE AS REGARDS THE TAKING OF POSSESSION OF THE

JUDICIAL Within 1 year after Within 1 year after PROPERTY PURCHASED AT PUBLIC AUCTION
the sale of the real the sale of the real MORTGAGEE: BANK MORTGAGEE: NOT BANK
estate. estate. Immediately after the date Wirt of possession may be
EXTRAJUDICIAL Equity of Any time within 1 of the confirmation of the secured upon the finality of
redemption (until, year from and after auction sale. the order of confirmation or
but not after, the the date of the *date referred to is date of upon the expiration of the
registration of the sale. finality of the order of period of redemption when
certificate of confirmation since order is allowed by law
foreclosure sale appealable. *unless a 3rd party is
with the RD – actually holding the same
which in no case adversely to the judgment
shall be more than obligor.
3 mos. – whichever *Writ of Possession ! places the purchaser in the
is earlier). possession of the property which he has purchased at the
*period of 1 year after the sale reckoned from the public auction sale and has become his by virtue of the
registration of the sale of the registered land. final decree confirming the sale.

REDEMPTION PRICE Sec. 4. Disposition of proceeds of sale.

MORTGAGEE: BANK MORTGAGEE: NOT The amount realized from the foreclosure sale of the
mortgaged property shall, after deducting the costs of the
BANK sale, be paid to the person foreclosing the mortgage, and
JUDICIAL Amount due under (not provided in the when there shall be any balance or residue, after paying
mortgage deed book) off the mortgage debt due, the same shall be paid to
with interest junior encumbrancers in the order of their priority, to be
thereon at the rate ascertained by the court, or if there be no such
specified in the encumbrancers or there be a balance or residue after
payment to them, then to the mortgagor or his duly
mortgage
authorized agent, or to the person entitled to it.

Plus all costs and HOW PROCEEDS APPLIED

expenses incurred After deducting the costs of the sale, the proceeds shall
by the bank from be applied in the ff order:
the sale and 1. To the person foreclosing the mortgage
custody of the 2. To the junior encumbrances in the order of their
property priority as ascertained by the court
3. To the mortgagor or his duly authorized agent (or
Less the income person entitled to it).
derived therefrom.
EXTRA- Amount due under Auction purchase Rights of 2nd Mortgagee
JUDICIAL mortgage deed price with 1% interest a. Right of repurchase
with interest per month up to the b. To apply to the payment of its credit the excess of
thereon at the rate time of redemption. the proceeds of the sale after the payment to the 1st
specified in the mortgagee (since its mortgage is subordinated to
mortgage Plus taxes or the 1st).
assessment paid by *If the credit ifo 1st mortgagee has absorbed the
Plus all costs and the purchases after entire proceeds of the sale ! 2nd mortgaged is
expenses incurred the purchase, if any. extinguished with it.
by the bank from **if 2nd mortgagee was joined as defendant !
the sale and no more equity of redemption.
custody of the
property Sec. 5. How sale to proceed in case the debt is not all due.
If the debt for which the mortgage or encumbrance was
Less the income held is not all due as provided in the judgment, as soon as
a sufficient portion of the property has been sold to pay
derived therefrom.
the total amount and the costs due, the sale shall
terminate; and afterwards, as often as more becomes due
To enjoin foreclosure proceedings for principal or interest and other valid charges, the
A bond must be filed in an amount fixed by the court court may, on motion, order more to be sold. But if the
(conditioned that he will pay all the damages which the property cannot be sold in portions without prejudice to
bank may suffer by the enjoining or the restraint of the the parties, the whole shall be ordered to be sold in the
foreclosure proceeding). first instance, and the entire debt and costs shall be paid,

By: RJ MARTINEZ Based on Feria & Noche Book

35 III – LLB, EH404, USC – College of Law
 Provisional remedies & special civil actions
Reviewer
if the proceeds of the sale be sufficient therefor, there
being a rebate of interest where such rebate is proper.
If entire debt not yet due
Mortgagee may foreclose in case of default in any of the
installment/s ! he may foreclose as often as more of the
debt becomes due for principal/interest (upon motion).
*if the property cannot be sold in portions ! entire
property shall be ordered sold.
- ENTIRE DEBT AND COSTS are then settled if the
proceeds are sufficient (with a rebate of interest,
if proper).
Sec. 6. Deficiency judgment.
If upon the sale of any real property as provided in the
next preceding section there be a balance due to the
plaintiff after applying the proceeds of the sale, the court,
upon motion, shall render judgment against the
defendant for any such balance for which, by the record
of the case, he may be personally liable to the plaintiff,
upon which execution may issue immediately if the
balance is all due at the time of the rendition of the
judgment; otherwise, the plaintiff shall be entitled to
execution at such time as the balance remaining becomes
due under the terms of the original contract, which time
shall be stated in the judgment.
NO RECOVERY of deficiency before foreclosure sale (it is
only after sale that we’ll know a deficiency exists).
WHEN DEFICIENCY CANNOT BE DECREED
a. When one mortgages his property to secure the
debt of another without expressly assuming personal
liability for such debt.
b. Against non-resident defendant who fails to submit
himself to the jurisdiction of the court.
Deficiency claim may be filed against the estate of the
mortgage debtor.
IN A FORECLOSURE OF CHATTEL MORTGAGE
GR: Independent action may be instituted for the
recovery of deficiency.
EXC:
Art. 1484. In a contract of sale of personal property
the price of which is payable in installments, the
vendor may exercise any of the following remedies:
xxx xxx xxx
(3) Foreclose the chattel mortgage on the thing sold,
if one has been constituted, should the vendee's
failure to pay cover two or more installments. In this
case, he shall have no further action against the
purchaser to recover any unpaid balance of the price.
Any agreement to the contrary shall be void. (1454-
A-a)
PRESCRIPTIVE PERIOD for filing an ACTION FOR DEFICIENCY
in EJ FORECLOSURE of REAL ESTATE ! 10 years.
Sec. 7. Registration.
A certified copy of the final order of the court confirming
the sale shall be registered in the registry of deeds. If no
right of redemption exists, the certificate of title in the
By: RJ MARTINEZ
36 III – LLB, EH404, USC – College of Law
name of the mortgagor shall be cancelled, and a new one
issued in the name of the purchaser.
Where a right of redemption exists, the certificate of title
in the name of the mortgagor shall not be cancelled, but
the certificate of sale and the order confirming the sale
shall be registered and a brief memorandum thereof
made by the registrar of deeds upon the certificate of
title. In the event the property is redeemed, the deed of
redemption shall be registered with the registry of deeds,
and a brief memorandum thereof shall be made by the
registrar of deeds on said certificate of title.
If the property is not redeemed, the final deed of sale
executed by the sheriff in favor of the purchaser at the
foreclosure sale shall be registered with the registry of
deeds; whereupon the certificate of title in the name of
the mortgagor shall be cancelled and a new one issued in
the name of the purchaser.
Sec. 8. Applicability of other provisions.
The provisions of sections 31, 32 and 34 of Rule 39 shall
be applicable to the judicial foreclosure of real estate
mortgages under this Rule insofar as the former are not
inconsistent with or may serve to supplement the
provisions of the latter.
RULE 69
PARTITION
Section 1. Complaint in action for partition of real estate.
A person having the right to compel the partition of real
estate may do so as provided in this Rule, setting forth in
his complaint the nature and extent of his title and an
adequate description of the real estate of which partition
is demanded and joining as defendants all other persons
interested in the property.
When necessary ! if the co-owners cannot agree on an
extra-judicial partition.
JURISDICTION
PERSONAL PROPERTY REAL PROPERTY
MTC MTC
Not more than P300K (Non- Not more than P20K (Non-
MM) MM)
Not more than P400K (MM) Not more than P50K (MM)
RTC RTC
More than P300K (Non-MM) More than P20K (Non-MM)
More than P400K (MM) More than P50K (MM)
*If title or possession of the real property in an action for
partition depends on the annulment of a Deed of
Declaration of Heirs (Incapable of Pecuniary Estimation)
! RTC.
WHO MAY FILE WHO MAY BE DEFENDANTS
Must be a co-proprietor or Maintained against other
co-owner of the undivided co-owners/coparceners.
property. *all co-owners are
indispensable parties.
Property must be adequately described.
If NOT ! may be used to dismiss the complaint for
partition.
BUT inadequacy may be cured by evidence
introduced at the trial without objection.
Based on Feria & Noche Book
 Provisional remedies & special civil actions
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Sec. 2. Order for partition, and partition by agreement
thereunder.
If after the trial the court finds that the plaintiff has the
right thereto, it shall order the partition of the real estate
among all the parties in interest. Thereupon the parties
may, if they are able to agree, make the partition among
themselves by proper instruments of conveyance, and the
court shall confirm the partition so agreed upon by all the
parties, and such partition, together with the order of the
court confirming the same, shall be recorded in the
registry of deeds of the place in which the property is
situated.
A final order decreeing partition and accounting may be
appealed by any party aggrieved thereby.
ORDER OF PARTITION AND ACCOUNTING ! final order
(hence, appealable).
PERIOD TO APPEAL
30D counted from notice of said order (record on appeal
is required).
2 STAGES IN EVERY ACTION FOR PARTITION
1st – determination of WON co-ownership in fact exists
and partition is proper.
*may be made by voluntary agreement of the
parties interested in the property.
*may end with either a declaration that plaintiff is not
entitled or with a judgment that a co-ownership does
not exist, partition is proper and an accounting by
defendant is in order.
2nd – partition to be done with the assistance of not more
than 3 commissioners (when it appears that the parties
are unable to agree upon the partition directed by the
court).
Sec. 3. Commissioners to make partition when parties
fail to agree.
If the parties are unable to agree upon the partition, the
court shall appoint not more than three (3) competent
and disinterested persons as commissioners to make the
partition, commanding them to set off to the plaintiff and
to each party in interest such part and proportion of the
property as the court shall direct.
Sec. 4. Oath and duties of commissioners.
Before making such partition, the commissioners shall
take and subscribe an oath that they will faithfully
perform their duties as commissioners, which oath shall
be filed in court with the other proceedings in the case. In
making the partition, the commissioners shall view and
examine the real estate, after due notice to the parties to
attend at such view and examination, and shall hear the
parties as to their preference in the portion of the
property to be set apart to them and the comparative
value thereof, and shall set apart the same to the parties
in lots or parcels as will be most advantageous and
equitable, having due regard to the improvements,
situation and quality of the different parts thereof.
Court must consider and respect the interests of all
parties and adopt that form of partition nearest to
absolute equity and most consonant with reason and
justice.
By: RJ MARTINEZ
37 III – LLB, EH404, USC – College of Law
Sec. 5. Assignment or sale of real estate by
commissioners.
When it is made to appear to the commissioners that the
real estate, or a portion thereof, cannot be divided
without prejudice to the interests of the parties, the court
may order it 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, unless
one of the interested parties asks that the property be
sold instead of being so assigned, in which case the court
shall order the commissioners to sell the real estate at
public sale under such conditions and within such time as
the court may determine.
PUBLIC SALE MANDATORY ! when one of the interested
parties asks that the property be sold instead of assigned
to one of them.
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.
Procedure here is similar to that in Sec. 7 and 8 of Rule 67.
Appellate courts ORDINARILY will not reverse the findings
of the impartial commissioners and trial judge.
Sec. 8. Accounting for rent and profits in action for
partition.
In an action for partition in accordance with this Rule, a
party shall recover from another his just share of rents
and profits received by such other party from the real
estate in question, and the judgment shall include an
allowance for such rents and profits.
Claims for rents and profits must be set up in the action
for partition ! else, they shall be BARRED!
*they are parts of a single cause of action for partition.
Sec. 9. Power of guardian in such proceedings.
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 Provisional remedies & special civil actions
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The guardian or guardian ad litem of a minor or person
judicially declared to be incompetent may, with the
approval of the court first had, do and perform on behalf
of his ward any act, matter, or thing respecting the
partition of real estate, which the minor or person
judicially declared to be incompetent could do in
partition proceedings if he were of age or competent.
Similar to Sec. 14, Rule 67.
Sec. 10. Costs and expenses to be taxed and collected.
The court shall equitably tax and apportion between or
among the parties the costs and expenses which accrue in
the action, including the compensation of the
commissioners, having regard to the interests of the
parties, and execution may issue therefor as in other
cases.
Sec. 11. The judgment and its effect; copy to be recorded
in registry of deeds.
If actual partition of property is made, the judgment shall
state definitely, by metes and bounds and adequate
description, the particular portion of the real estate
assigned to each party, and the effect of the judgment
shall be to vest in each party to the action in severalty the
portion of the real estate assigned to him. If the whole
property is assigned to one of the parties upon his paying
to the others the sum or sums ordered by the court, the
judgment shall state the fact of such payment and of the
assignment of the real estate to the party making the
payment, and the effect of the judgment shall be to vest in
the party making the payment the whole of the real estate
free from any interest on the part of the other parties to
the action. If the property is sold and the sale confirmed
by the court, the judgment shall state the name of the
purchaser or purchasers and a definite description of the
parcels of real estate sold to each purchaser, and the
effect of the judgment shall be to vest the real estate in
the purchaser or purchasers making the payment or
payments, free from the claims of any of the parties to the
action. A certified copy of the judgment shall in either
case be recorded in the registry of deeds of the place in
which the real estate is situated, and the expenses of such
recording shall be taxed as part of the costs of the action.
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.
Judgment in an action for partition is res judicata only
upon:
1. PARTIES thereto
2. Their SUCCESSORS-IN-INTEREST
It shall not prejudice 3rd persons who shall retain their
rights over the property belonging to them prior to
division made.
Sec. 13. Partition of personal property.
The provisions of this Rule shall apply to partitions of
estates composed of personal property, or of both real
By: RJ MARTINEZ
38 III – LLB, EH404, USC – College of Law
and personal property, in so far as the same may be
applicable.
Rule 69 applies as well to personal property.
If an actual partition of personal property cannot be
made, it will be sold under the direction of the court and
the proceeds divided among the owners after the
necessary expenses have been deducted.
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
Section 1. Who may institute proceedings, and when.
Subject to the provisions of the next succeeding section, a
person deprived of the possession of any land or building
by force, intimidation, threat, strategy, or stealth, or a
lessor, vendor, vendee, or other person against whom the
possession of any land or building is unlawfully withheld
after the expiration or termination of the right to hold
possession, by virtue of any contract, express or implied,
or the legal representatives or assigns of any such lessor,
vendor, vendee, or other person, may, at any time within
one (1) year after such unlawful deprivation or
withholding of possession, bring an action in the proper
Municipal Trial Court against the person or persons
unlawfully withholding or depriving of possession, or any
person or persons claiming under them, for the
restitution of such possession, together with damages
and costs.
2 DISTINCT CAUSES OF ACTION
1. Action to recover possession founded on illegal
occupation from the beginning (Forcible Entry)
2. Action founded on unlawful detention by a
person who originally acquired possession
lawfully (Unlawful Detainer)
*these 2 are governed by the Revised Rules on
Summary Procedure
FORCIBLE ENTRY (FE) – based on entry effected by force,
intimidation, threat, strategy, or stealth (FITSS). The action
is for the recovery of possession founded upon illegal
possession from the beginning.
- Brought against one in possession at the
commencement of the action.
- Must be brought by a person or co-owner
deprived of the possession of land or building by
FITSS.
- Complaint for FE must allege:
1. Prior physical possession
2. Deprivation of possession thru FITSS.
++if deprivation was not thru any of these
means, RTC has jurisdiction.
UNLAWFUL DETAINER (UD) – based on unlawful detention
by a person who has acquired possession rightfully, but
who detains the property after the right to keep
possession is ended.
- Brought against one in possession at the
commencement of the action.
- Must be brought by:
a. Lessor, vendor, vendee, co-owner, or other
person against whom possession of any land
or building is unlawfully withheld.
Based on Feria & Noche Book
 Provisional remedies & special civil actions
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b. The legal representatives or assigns of any
such lessor, vendor, vendee, co-owner or
other person against whom possession of any
land or building is unlawfully withheld.
- Complaint must allege:
1. Demand to vacate the premises
2. Demand to pay the rentals agreed or to
comply with the conditions of the lease, in
order to confer jurisdiction upon the MTC.
*if lessee in the alternative is given option to
pay the increased rental or vacate ! not
the demand contemplated by the rules.
*Prior physical possession need not be required of a
vendee in UD case.
*failure to pay another rental does not preclude filing of
another UD when the 1st action was for non-payment of
previous rental.
FE and UD involve only POSSESSION DE FACTO or physical
possession of the property.
" Independent of any claim of ownership that
either party may put forth in his pleading.
" Party who proves prior physical possession may
recover possession even from the owner.
*court may receive evidence of possession de
jure but only to determine the nature of
possession (character and extent) and damages
for the detention.
i.e.
tenant may bring action for ejectment against the
owner when he is unlawfully and forcibly ejected by
his landlord
JURISDICTION
MTC has exclusive original jurisdiction over cases of FE
and UD.
*when defendant raises the question of ownership in his
pleadings and the question of possession cannot be
resolved without deciding the issue of ownership ! issue
of ownership shall be resolved only to determine the issue
of possession (judgment is conclusive only on possession).
Action must be brought within 1 year, to be counted as
follows:
FE UD
From the date of the entry From the date of the last
or taking of possession by demand to vacate in case
force, intimidation, threat, of non-payment of rent or
or strategy (FITS). non-compliance with the
conditions of the lease.
From the demand to
vacate, upon learning of From the date of the notice
the entry by stealth. to quit, in case of a tacit
renewal of the lease. As
when with the
acquiescence of the lessor,
the lessee continues
enjoying the thing leased
for 15D.
By: RJ MARTINEZ
39 III – LLB, EH404, USC – College of Law
From the date of the
revocation of the permit in
case of occupancy on
mere tolerance or under a
temporary permit.
If more than 1 year has lapsed ! RTC has jurisdiction.
Actions for FE and UD are NOT SUSPENDED or BARRED by
other actions instituted by defendants in the RTC involving
sale, ownership, and physical possession of the same
property, which include, among others:
a. Injuction
b. Consignation of rentals
c. Accion Publiciana
d. Writ of Possession case
e. Quieting of Title
f. Specific performance with damages
g. Reformation of the instrument
h. Reconveyance of property, annulment of sale and
Reconveyance
i. Annulment of sale, or title, or document; annulment
of deed of sale with assumption of mortgage and/or
to declare the same an equitable mortgage;
annulment of sale with damages
ACTIONS TO RECOVER POSSESSION OF REAL PROPERTY
1. FE and UD
2. Accion Publiciana – a plenary action for possession
which could be brought in the RTC or MTC after one
year, or within one year in cases not covered by
Rule 70, and has for its object the recovery of the
better right to such possession (possession de jure).
3. Accion Reivindicatoria – an action to recover
ownership and possession which may be brought in
the RTC or MTC.
**MTC jurisdiction in 2 and 3 ! only when the
assessed value of the property is not more than P20K
or P50K as the case may be.
DAMAGES RECOVERABLE IN EJECTMENT
Rents OR reasonable compensation for the use and
occupation of the premises.
*when rents are adjudged, reasonable compensation
cannot be adjudicated and v.v.
**amount of rents/damages claimed does not affect the
jurisdiction of the MTC (merely incidental or accessory to
the main action).
Sec. 2. Lessor to proceed against lessee only after
demand.
Unless otherwise stipulated, such action by the lessor
shall be commenced only after demand to pay or comply
with the conditions of the lease and to vacate is made
upon the lessee, or by serving written notice of such
demand upon the person found on the premises, or by
posting such notice on the premises if no person be found
thereon, and the lessee fails to comply therewith after
fifteen (15) days in the case of land or five (5) days in the
case of buildings.
REQUISITES FOR LESSOR TO COMMENCE ACTION FOR
EJECTMENT
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 Provisional remedies & special civil actions
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Demand is made on the lessee:
1. To PAY or comply with conditions of the lease,
AND
2. To VACATE within 15D in the case of land or 5D in
case of buildings.
Demand is unnecessary, in the following:
Art. 1669. If the lease was made for a determinate
time, it ceases upon the day fixed, without the need
of a demand. (1565)
Art. 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. (1581a)
Notice to quit is necessary in
Art. 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. (1566a)
**Neither demand nor notice to quit is necessary in FE
cases because the possession is illegal from the
beginning.
Sec. 3. Summary procedure.
Except in cases covered by the agricultural tenancy laws
or when the law otherwise expressly provides, all actions
for forcible entry and unlawful detainer, irrespective of
the amount of damages or unpaid rentals sought to be
recovered, shall be governed by the summary procedure
hereunder provided.
Rules on Summary Procedure does not apply in the RTC.
Sec. 4. Pleadings allowed.
The only pleadings allowed to be filed are the complaint,
compulsory counterclaim and cross-claim pleaded in the
answer, and the answers thereto. All pleadings shall be
verified.
Sec. 5. Action on complaint.
The court may, from an examination of the allegations in
the complaint and such evidence as may be attached
thereto, dismiss the case outright on any of the grounds
for the dismissal of a civil action which are apparent
therein. If no ground for dismissal is found, it shall
forthwith issue summons.
Sec. 6. Answer.
By: RJ MARTINEZ
40 III – LLB, EH404, USC – College of Law
Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and serve
a copy thereof on the plaintiff. Affirmative and negative
defenses not pleaded therein shall be deemed waived,
except lack of jurisdiction over the subject matter. Cross-
claims and compulsory counterclaims not asserted in the
answer shall be considered barred. The answer to
counterclaims or cross-claims shall be served and filed
within ten (10) days from service of the answer in which
they are pleaded.
Sec. 7. Effect of failure to answer.
Should the defendant fail to answer the complaint within
the period above provided, the court, motu proprio or on
motion of the plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint and
limited to what is prayed for therein. The court may in its
discretion reduce the amount of damages and attorney’s
fees claimed for being excessive or otherwise
unconscionable, without prejudice to the applicability of
section 3 (c), Rule 9 if there are two or more defendants.
Sec. 8. Preliminary conference; appearance of parties.
Not later than thirty (30) days after the last answer is
filed, a preliminary conference shall be held. The
provisions of Rule 18 on pre-trial shall be applicable to
the preliminary conference unless inconsistent with the
provisions of this Rule.
The failure of the plaintiff to appear in the preliminary
conference shall be cause for the dismissal of his
complaint. The defendant who appears in the absence of
the plaintiff shall be entitled to judgment on his
counterclaim in accordance with the next preceding
section. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall
likewise be entitled to judgment in accordance with the
next preceding section. This procedure shall not apply
where one of two or more defendants sued under a
common cause of action who had pleaded a common
defense shall appear at the preliminary conference.
No postponement of the preliminary conference shall be
granted except for highly meritorious grounds and
without prejudice to such sanctions as the court in the
exercise of sound discretion may impose on the movant.
Sec. 9. Record of preliminary conference.
Within five (5) days after the termination of the
preliminary conference, the court shall issue an order
stating the matters taken up therein, including but not
limited to:
1. Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof;
2. The stipulations or admissions entered into by the
parties;
3. Whether, on the basis of the pleadings and the
stipulations and admissions made by the parties,
judgment may be rendered without the need of further
proceedings, in which event the judgment shall be
rendered within thirty (30) days from issuance of the
order;
4. A clear specification of material facts which remain
controverted; and
5. Such other matters intended to expedite the
disposition of the case.
Sec. 10. Submission of affidavits and position papers.
Within ten (10) days from receipt of the order mentioned
in the next preceding section, the parties shall submit the
affidavits of their witnesses and other evidence on the
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 Provisional remedies & special civil actions
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factual issues defined in the order, together with their
position papers setting forth the law and the facts relied
upon by them.
Sec. 11. Period for rendition of judgment.
Within thirty (30) days after receipt of the affidavits and
position papers, or the expiration of the period for filing
the same, the court shall render judgment.
However, should the court find it necessary to clarify
certain material facts, it may, during the said period,
issue an order specifying the matters to be clarified, and
require the parties to submit affidavits or other evidence
on the said matters within ten (10) days from receipt of
said order. Judgment shall be rendered within fifteen
(15) days after the receipt of the last affidavit or the
expiration of the period for filing the same.
The court shall not resort to the foregoing procedure just
to gain time for the rendition of the judgment.
Sec. 12. Referral for conciliation.
Cases requiring referral for conciliation, where there is
no showing of compliance with such requirement, shall
be dismissed without prejudice, and may be revived only
after that requirement shall have been complied with.
Sec. 13. Prohibited pleadings and motions.
The following petitions, motions, or pleadings shall not
be allowed:
1. Motion to dismiss the complaint except on the ground
of lack of jurisdiction over the subject matter, or failure
to comply with section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions.
Sec. 14. Affidavits.
The affidavits required to be submitted under this Rule
shall state only facts of direct personal knowledge of the
affiants which are admissible in evidence, and shall show
their competence to testify to the matters stated therein.
A violation of this requirement may subject the party or
the counsel who submits the same to disciplinary action,
and shall be cause to expunge the inadmissible affidavit
or portion thereof from the record.
Sec. 15. Preliminary injunction.
The court may grant preliminary injunction, in
accordance with the provisions of Rule 58 hereof, to
prevent the defendant from committing further acts of
dispossession against the plaintiff.
A possessor deprived of his possession through forcible
entry or unlawful detainer may, within five (5) days from
the filing of the complaint, present a motion in the action
for forcible entry or unlawful detainer for the issuance of
a writ of preliminary mandatory injunction to restore
him in his possession. The court shall decide the motion
within thirty (30) days from the filing thereof.
By: RJ MARTINEZ
41 III – LLB, EH404, USC – College of Law
PRELIMINARY PROHIBITORY INJUNCTION ! may be
granted in FE proceedings to prevent defendant from
committing further acts of dispossession against the
plaintiff.
PRELIMINARY MANDATORY INJUNCTION ! may be
granted in FE to restore possession to plaintiff.
*both may also be issued in UD cases.
Sec. 16. Resolving defense of ownership.
When the defendant raises the defense of ownership in
his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the
issue of ownership shall be resolved only to determine
the issue of possession.
SC Guidelines for Sec. 16
1. Principal issue must be that of possession (ownership
merely ancillary thereto and may be resolved only
for the purpose of determining the issue of
possession).
2. It must sufficiently appear from the allegations that
the plaintiff really and primarily seeks the restoration
of possession (where allegations clearly establish a
case for recover of ownership ! the action is not for
FE but for title to real property)
3. Inferior court cannot adjudicate on the nature of
ownership where the relationship of lessor and lessee
has been sufficiently established in the ejectment
case (unless it is sufficiently established that there
has been a subsequent change in or termination of
that relationship between the parties.
4. Rule in FE, not in UD, is that a party who can prove
prior possession and recover such possession even
against the owner himself.
5. Where the question of who has prior possession
hinges on the question of who the real owner of the
disputed portion is, the inferior court may resolve the
issue of ownership and make a declaration as to
who among the contending parties is the real
owner.
Sec. 17. Judgment.
If after trial the court finds that the allegations of the
complaint are true, it shall render judgment in favor of
the plaintiff for the restitution of the premises, the sum
justly due as arrears of rent or as reasonable
compensation for the use and occupation of the
premises, attorney’s fees and costs. If it finds that said
allegations are not true, it shall render judgment for the
defendant to recover his costs. If a counterclaim is
established, the court shall render judgment for the sum
found in arrears from either party and award costs as
justice requires.
Sec. 18. Judgment conclusive only on possession; not
conclusive in actions involving title or ownership.
The judgment rendered in an action for forcible entry or
detainer shall be conclusive with respect to the
possession only and shall in no wise bind the title or
affect the ownership of the land or building. Such
judgment shall not bar an action between the same
parties respecting title to the land or building.
The judgment or final order shall be appealable to the
appropriate Regional Trial Court which shall decide the
same on the basis of the entire record of the proceedings
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had in the court of origin and such memoranda and/or
briefs as may be submitted by the parties or required by
the Regional Trial Court.
Sub-lessees who have not been impleaded are affected
by an order of eviction against the lessees ! their rights
stand on the rights of the lessees.
*actually, ALL persons occupying the property with the
consent of the defendant may be ejected (i.e his family,
servants, employees, and sub-lessees).
Judgment in ejectment is IN PERSONAM ! enforceable
only between the parties and not against strangers.
- Person not a party to the action (possessor in
GF) cannot be bound (no execution of
judgment against him).
*but not where it can be proven that he is
merely a successor-in-interest, guest, or
agent of the defendant (determined after
due hearing).
**judgment cannot be enforced against a
co-owner who was not made a party to the
case (they should be given the chance to
protect their interest in the property).
Ejectment survives the death of a party ! judgment is
conclusive between the parties and their successors-in-
interest.
Sec. 19. Immediate execution of judgment; how to stay
same.
If judgment is rendered against the defendant, execution
shall issue immediately upon motion, unless an appeal
has been perfected and the defendant to stay execution
files a sufficient supersedeas bond, approved by the
Municipal Trial Court and executed in favor of the
plaintiff to pay the rents, damages, and costs accruing
down to the time of the judgment appealed from, and
unless, during the pendency of the appeal, he deposits
with the appellate court the amount of rent due from
time to time under the contract, if any, as determined by
the judgment of the Municipal Trial Court. In the absence
of a contract, he shall deposit with the Regional Trial
Court the reasonable value of the use and occupation of
the premises for the preceding month or period at the
rate determined by the judgment of the lower court on or
before the tenth day of each succeeding month or period.
The supersedeas bond shall be transmitted by the
Municipal Trial Court, with the other papers, to the clerk
of the Regional Trial Court to which the action is
appealed.
All amounts so paid to the appellate court shall be
deposited with said court or authorized government
depositary bank, and shall be held there until the final
disposition of the appeal, unless the court, by agreement
of the interested parties, or in the absence of reasonable
grounds of opposition to a motion to withdraw, or for
justifiable reasons, shall decree otherwise. Should the
defendant fail to make the payments above prescribed
from time to time during the pendency of the appeal, the
appellate court, upon motion of the plaintiff, and upon
proof of such failure, shall order the execution of the
judgment appealed from with respect to the restoration
of possession, but such execution shall not be a bar to the
appeal taking its course until the final disposition thereof
on the merits.
By: RJ MARTINEZ
42 III – LLB, EH404, USC – College of Law
After the case is decided by the Regional Trial Court, any
money paid to the court by the defendant for purposes of
the stay of execution shall be disposed of in accordance
with the provisions of the judgment of the Regional Trial
Court. In any case wherein it appears that the defendant
has been deprived of the lawful possession of land or
building pending the appeal by virtue of the execution of
the judgment of the Municipal Trial Court, damages for
such deprivation of possession and restoration of
possession may be allowed the defendant in the judgment
of the Regional Trial Court disposing of the appeal.
IMMEDIATE EXECUTION OF JUDGMENT !only when
judgment IFO of plaintiff (in order to prevent further
damage to him should the defendant continue to
deprive him of the possession of the premises in litigation).
HOW IMMEDIATE EXECUTION STAYED
1. Perfecting an appeal
2. Filing supersedeas bond approved by MTC to pay
for rents, damages, and costs accruing down to the
time of the judgment appealed from
3. Depositing with the RTC, during the pendency of the
appeal,
4. The adjudged amount of rend due from time to time
under the contract
5. In the absence of a contract, the reasonable value
of the use and occupation of the property for the
preceding month or period as determined by the
MTC, on or before the 10th day of each succeeding
month or period ! this is mandatory (the court has
no jurisdiction to extend the time; upon violation the
plaintiff has the right to ask for execution).
EXECUTION ENDING APPEAL FOR FAILURE TO MAKE TIMELY
DEPOSITS ! constitutes restoration of possession but not
to the payment of back rents which is guaranteed by the
supersedeas bond.
*such execution shall not bar the appeal to take its
course until final disposition thereof on the merits.
REMEDY OF DEFENDANT IN CASE OF FAILURE TO COMPLY
WITH SEC.19
Relief under R38 (Relief from Judgment)
- Defendant was prevented from posting the
supersedeas bond or making monthly
deposit due to FAME or occurrence of
supervening event which brought about a
material change in the situation of the
parties and which would make the execution
inequitable.
SUPERSEDEAS BOND [SB] is not required where no back
rents are adjudged.
*attorney’s fees need not be covered by a supersedeas
bond.
**SB covers only those rentals, damages, and costs as
field in the appealed judgment and not those that
may accrue during the pendency of the appeal
(guaranteed by the periodic deposits to be made by
defendant).
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer

- If defendant deposits in court the amount of prejudice to a further appeal that may be taken
back rentals or there are no rents and therefrom.
damages in arrears ! SB not necessary.
Prior notice of judgment required for immediate
PERIODICAL DEPOSITS ! anwer for the rentals under the execution of the judgment in RTC.
lease contract which may accrue during the pendency - Notice and proof of service must
of the appeal as determined in the judgment. accompany motion for execution of the
*in absence of contract (or expiry) ! reasonable value of judgment.
the use and occupation of the premises is that fixed by - Will enable the losing party to take any
the inferior court in the judgment. appropriate steps to protect his interests
when warranted (otherwise the entire
DAMAGES RECOVERABLE proceedings leading to the execution of the
Cannot refer to other damages which are foreign to the judgment may be nullified).
enjoyment or material possession of the property (atty’s RULE 71
fees not considered damages). CONTEMPT

If no rents or damages are fixed in the judgment ! Section 1. Direct contempt punished summarily.
payment or deposit not required during the pendency of A person guilty of misbehavior in the presence of or so
appeal. near a court as to obstruct or interrupt the proceedings
before the same, including disrespect toward the court,
offensive personalities toward others, or refusal to be
Plaintiff may withdraw rentals deposited in court if sworn or to answer as a witness, or to subscribe an
defendant agrees or does not object. affidavit or deposition when lawfully required to do so,
may be summarily adjudged in contempt by such court
If the issue of lack of jurisdiction is raised on appeal ! and punished by a fine not exceeding two thousand pesos
there is still need to follow the requirements of Sec.19. or imprisonment not exceeding ten (10) days, or both, if
it be a Regional Trial Court or a court of equivalent or
Sec. 20. Preliminary mandatory injunction in case of higher rank, or by a fine not exceeding two hundred
appeal. pesos or imprisonment not exceeding one (1) day, or
Upon motion of the plaintiff, within ten (10) days from both, if it be a lower court.
the perfection of the appeal to the Regional Trial Court,
the latter may issue a writ of preliminary mandatory CONTEMPT OF COURT ! a disobedience to the court by
injunction to restore the plaintiff in possession if the acting in opposition to its authority, justice, and dignity.
court is satisfied that the defendant’s appeal is frivolous - Willful disregard or disobedience of the court’s
or dilatory, or that the appeal of the plaintiff is prima orders which tends to bring the authority of the
facie meritorious.
court and the administration of law into disrepute
Art. 539. Every possessor has a right to be respected or in some manner to impede the de
in his possession; and should he be disturbed therein administration of justice.
he shall be protected in or restored to said
possession by the means established by the laws and Power to punish for contempt
the Rules of Court. Inherent in all courts ! because its existence is essential
A possessor deprived of his possession through to the preservation of order in judicial proceedings and
forcible entry may within ten days from the filing of to the enforcement of judgments, orders, and mandates
the complaint present a motion to secure from the of the courts, and, consequently, to the due
competent court, in the action for forcible entry, a administration of justice.
writ of preliminary mandatory injunction to restore Dual Aspect
him in his possession. The court shall decide the 1. Proper punishment of the guilty party for his
motion within thirty (30) days from the filing disrespect to the court
thereof. (446a) 2. His compulsory performance of some act or
Art. 1674. In ejectment cases where an appeal is duty required of him by the court and which
taken the remedy granted in Article 539, second he refuses to perform.
paragraph, shall also apply, if the higher court is
satisfied that the lessee's appeal is frivolous or CLASSES OF CONTEMPT
dilatory, or that the lessor's appeal is prima facie DIRECT INDIRECT
meritorious. The period of ten days referred to in - may be - may be
AS TO
said article shall be counted from the time the punished punished only
MANNER OF
appeal is perfected. (n) summarily. after written
COMMISSION
charge and
Sec. 21. Immediate execution on appeal to Court of due hearing.
Appeals or Supreme Court. CIVIL CRIMINAL
The judgment of the Regional Trial Court against the
- consists in failing AS TO NATURE - Conduct that is
defendant shall be immediately executory, without
to do something directed as

By: RJ MARTINEZ Based on Feria & Noche Book

43 III – LLB, EH404, USC – College of Law
 Provisional remedies & special civil actions
Reviewer

ordered to be against the of a person who, after being dispossessed or ejected from
done by a court authority and any real property by the judgment or process of any court
of competent jurisdiction, enters or attempts or induces
or a judge in a dignity of a
another to enter into or upon such real property, for the
civil case for the court or of a purpose of executing acts of ownership or possession, or
benefit of the judge acting in any manner disturbs the possession given to the
opposing party judicially, as in person adjudged to be entitled thereto;
therein. unlawfully (c) Any abuse of or any unlawful interference with the
- An offense assailing or processes or proceedings of a court not constituting
against the party discrediting the direct contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly,
in whose behalf authority and
to impede, obstruct, or degrade the administration of
the violated dignity of the justice;
order is made. court/judge, or (e) Assuming to be an attorney or an officer of a court,
- Defendant’s in doing a duly and acting as such without authority;
intent is forbidden act. (f) Failure to obey a subpoena duly served;
immaterial (GF - Intent is a (g) The rescue, or attempted rescue, of a person or
not a defense). necessary property in the custody of an officer by virtue of an order
or process of a court held by him.
element.
But nothing in this section shall be so construed as to
Proceedings for contempt ! are criminal in nature prevent the court from issuing process to bring the
(mode of procedure and rules of evidence similar with respondent into court, or from holding him in custody
criminal prosecutions). pending such proceedings.
*even when the acts complained of are incidents of civil
actions. In INDIRECT CONTEMPT – respondent is given an
opportunity to file a comment on the written charge and
Illustration: be heard.
Disrespectful language against a judge in a pleading *PERIOD TO FILE – to be fixed by the court.
presented in another court ! INDIRECT CONTEMPT (if it
were in the same court – direct!). GROUNDS
Characterizing injunction issued by SC as “unjust”; “has a) Misbehavior of an officer of a court in the
no legal nor factual basis” and “a miscarriage of justice” performance of his official duties or in his official
! DIRECT CONTEMPT. transactions;
Litigant’s request that judge inhibit himself ! NO i.e. sheriff, without excuse or justification ad with
CONTEMPT (when impelled by a justifiable apprehension gross negligence, failed to make a return of
and acting in a respectful manner). service of summons sent to him.
b) Disobedience of or resistance to a lawful writ,
Sec. 2. Remedy therefrom. process, order, or judgment of a court, including the
The person adjudged in direct contempt by any court may act of a person who, after being dispossessed or
not appeal therefrom, but may avail himself of the ejected from any real property by the judgment or
remedies of certiorari or prohibition. The execution of
process of any court of competent jurisdiction, enters
the judgment shall be suspended pending resolution of
such petition, provided such person files a bond fixed by or attempts or induces another to enter into or upon
the court which rendered the judgment and conditioned such real property, for the purpose of executing acts
that he will abide by and perform the judgment should of ownership or possession, or in any manner disturbs
the petition be decided against him. the possession given to the person adjudged to be
entitled thereto;
REMEDY FROM JUDGMENT (Direct Contempt) ! i.e. the order must be valid, legal, and lawful and
CERTIORARI or PROHIBITION with a STAY OF EXECUTION the act that the is forbidden or required to be
pending the resolution of the petition by the filing of a done in the order must be clearly and exactly
bond fixed by the court conditioned upon the defined.
performance of the judgment should the petition be *a bona fide misunderstanding of the terms of the
decided against petitioner. order/procedural rules should not immediately
cause the institution of contempt proceedings.
Sec. 3. Indirect contempt to be punished after charge and
*an erroneous judgment must be obeyed.
hearing.
After a charge in writing has been filed, and an *refusal to vacate does not constitute contempt
opportunity given to the respondent to comment thereon (BUT, re-entry is contemptuous).
within such period as may be fixed by the court and to be c) Any abuse of or any unlawful interference with the
heard by himself or counsel, a person guilty of any of the processes or proceedings of a court not constituting
following acts may be punished for indirect contempt: direct contempt under section 1 of this Rule;
(a) Misbehavior of an officer of a court in the i.e. interfering with the functions and duties of a
performance of his official duties or in his official
court appointee(i.e. receiver).
transactions;
(b) Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including the act

By: RJ MARTINEZ Based on Feria & Noche Book

44 III – LLB, EH404, USC – College of Law
 Provisional remedies & special civil actions
Reviewer
d) Any improper conduct tending, directly or indirectly,
to impede, obstruct, or degrade the administration of
justice;
Publication PENDING Suit – publications that tend
to impede, obstruct, embarrass, or influence the
courts in administering justice in a pending suit or
proceeding constitute criminal contempt
(summarily punishable).
i.e. publication of a criticism of a party or of the
court to a pending cause; criticism or comment
that attempts to intimidate the members of the
Court and attacks the honesty and integrity of
the court; publication of proceedings regarding
the suspension and disbarment/removal of
lawyers/judges.
EXC: mere criticism or comment on the
correctness or wrongness, soundness or
unsoundness of the decision of the court in a
pending case made in GF may be tolerated
(may enlighten the court and contribute to the
correction of an error committed).
POST-LITIGATION Publication – fair criticism of the
court, its proceedings and its members, is
allowed.
EXC:
1. Where it tends to bring the court into
disrespect or scandalize it
2. Where there is a clear and present t danger
that the administration of justice would be
impeded.
e) Assuming to be an attorney or an officer of a court,
and acting as such without authority;
f) Failure to obey a subpoena duly served;
g) 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.
i.e. taking away of personal property subject
matter of a levy on execution on attachment
from the sheriff.
Sec. 4. How proceedings commenced.
Proceedings for indirect contempt may be initiated motu
proprio by the court against which the contempt was
committed by an order or any other formal charge
requiring the respondent to show cause why he should
not be punished for contempt.
In all other cases, charges for indirect contempt shall be
commenced by a verified petition with supporting
particulars and certified true copies of documents or
papers involved therein, and upon full compliance with
the requirements for filing initiatory pleadings for civil
actions in the court concerned. If the contempt charges
arose out of or are related to a principal action pending
in the court, the petition for contempt shall allege that
fact but said petition shall be docketed, heard and
decided separately, unless the court in its discretion
orders the consolidation of the contempt charge and the
principal action for joint hearing and decision.
2 MODES OF COMMENCING PROCEEDING FOR INDIRECT
CONTEMPT
By: RJ MARTINEZ
45 III – LLB, EH404, USC – College of Law
1. An order or other formal charge by the court
requiring the respondent to show cause why he
should not be punished for contempt
*Applies only where the indirect contempt is
committed against a court or judge possessed
and clothed with contempt powers
2. A verified petition charging indirect contempt with
supporting particulars and certified true copies of
the necessary documents.
*Applies if the contemptuous act was committed
neither against a court nor a judicial officer with
authority to punish contemptuous acts.
Sec. 5. Where charge to be filed.
Where the charge for indirect contempt has been
committed against a Regional Trial Court 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 lower court, the
charge may be filed with the Regional Trial Court of the
place in which the lower court is sitting; but the
proceedings may also be instituted in such lower court
subject to appeal to the Regional Trial Court of such place
in the same manner as provided in section 2 of this Rule.
WHERE FILED
a. Lower court (MTC) appealable to RTC
b. RTC/Court of equivalent or higher rank ! when
committed against it, or an MTC, or against an
officer appointed by it (RTC).
Sec. 6. Hearing; release on bail.
If the hearing is not ordered to be had forthwith, the
respondent may be released from custody upon filing a
bond, in an amount fixed by the court, for his appearance
at the hearing of the charge. On the day set therefor, the
court shall proceed to investigate the charge and consider
such comment, testimony or defense as the respondent
may make or offer.
Court does not acquire jurisdiction to punish for indirect
contempt when there is no charge and hearing i.e. there
was no service of the charge and plea to be given an
opportunity to Answer was disregarded ! tantamount to
denial of due process.
The court may motu propio institute proceedings for
contempt ! necessary for the court’s own protection
against the improper interference with the administration
of justice.
Institution of charges by prosecuting offices ! NOT
NECESSARY to hold person guilty of civil or criminal
contempt (charge may be made by private person,
judge, or fiscal).
*all that R71 requires is that there be:
1. Charge (in writing duly filed in court)
2. Opportunity to be heard (by himself/counsel)
Sec. 7. Punishment for indirect contempt.
If the respondent is adjudged guilty of indirect contempt
committed against a Regional Trial Court or a court of
equivalent or higher rank, he may be punished by a fine
not exceeding thirty thousand pesos or imprisonment not
exceeding six (6) months, or both. If he is adjudged guilty
Based on Feria & Noche Book
 Provisional remedies & special civil actions
Reviewer

of contempt committed against a lower court, he may be
punished by a fine not exceeding five thousand pesos or
imprisonment not exceeding one (1) month, or both. If
the contempt consists in the violation of a writ of
injunction, temporary restraining order 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.
The writ of execution, as in ordinary civil actions, shall
issue for the enforcement of a judgment imposing a fine
unless the court otherwise provides.
WHEN CONTEMPT IS FOR VIOLATION OF A WRIT OF
INJUNCTION OR RESTRAINING ORDER ! Punishment may
also provide the complete restitution to the party injured
of the property involved or such amount alleged and
proved.
WHEN JUDGMENT IMPOSES FINE ! writ of execution shall
issue for its enforcement (unless court provides otherwise).
DOUBLE JEOPARDY DOES NOT LIE
Court that constitutes contempt proceedings (where the
contemptuous words/statements are sufficient for the
filing of a case for libel) is not precluded from instituting
BEFORE, DURING, or AFTER such proceeding from
prosecuting for LIBEL.
" NOR will the exercise of power to punish for
contempt exclude the power to disbar.
The judgment or final order of a court in a case of
indirect contempt may be appealed to the proper court as
in criminal cases. But execution of the judgment or final
order shall not be suspended until a bond is filed by the
person adjudged in contempt, in an amount fixed by the
court from which the appeal is taken, conditioned that if
the appeal be decided against him he will abide by and
perform the judgment or final order.
JUDGMENT/ACQUITTAL IN CONTEMPT CASE
! Not appealable.
EXC: dismissal is a result of a motion to dismiss on a
jurisdictional ground (there has been no adjudication on
the merits of the charge).
Sec.12. Contempt against quasi-judicial entities.
Unless otherwise provided by law, this Rule shall apply to
contempt committed against persons, entities, bodies or
agencies exercising quasi-judicial functions, or shall have
suppletory effect to such rules as they may have adopted
pursuant to authority granted to them by law to punish
for contempt. The Regional Trial Court of the place
wherein the contempt has been committed shall have
jurisdiction over such charges as may be filed therefor.
xx xxx xxx END xxx xxx xxx
This is a court of law, young man, not a court of justice.
~Oliver Wendell Holmes, Jr.

Sec. 8. Imprisonment until order obeyed.

When the contempt consists in the refusal or omission to Goodspeed
do an act which is yet in the power of the respondent to &
perform, he may be imprisoned by order of the court Enjoy!
concerned until he performs it.

Imprisonment for an indefinite term – not excessive or

unjust (even if it might last through the natural life of the
petitioner).
*because the way is left open for him to avoid
serving any part of it (the sentence) by complying
with the orders of the court, and in this manner put
an end to his incarceration.

Sec. 9. Proceeding when party released on bail fails to

answer.
When a respondent released on bail fails to appear on the
day fixed for the hearing, the court may issue another
order of arrest or may order the bond for his appearance
to be forfeited and confiscated, or both; and, if the bond
be proceeded against, the measure of damages shall be
the extent of the loss or injury sustained by the aggrieved
party by reason of the misconduct for which the contempt
charge was prosecuted, with the costs of the proceedings,
and such recovery shall be for the benefit of the party
injured. If there is no aggrieved party, the bond shall be
liable and disposed of as in criminal cases.

Sec. 10. Court may release respondent.

The court which issued the order imprisoning a person
for contempt may discharge him from imprisonment
when it appears that public interest will not be prejudiced
by his release.

Sec. 11. Review of judgment or final order; bond for stay.

By: RJ MARTINEZ Based on Feria & Noche Book
46 III – LLB, EH404, USC – College of Law