Book Civil Procedure by Regalado

RE ME DI AL LAW
GE NE RA L P R I N C I P L E S
1. Classificat ion of courts in the Philippines:

a. Courts of general jurisdiction: Those competent
to decide t heir own jur isdict ion and to take cognizance of
all kinds of cases, unless otherwise provided by the law or
Rules. Example: Regional Trial Courts.
Courts of special or limited jurisdiction: Those
which have no power to decide t heir own jurisdict ion and
can only try cases p e r m it t e d by s t at u t e . E xa mp le :
Municipal Trial Court s.
The Ju ve ni le and Domest ic Relat ions Court s had the
rank of Court s of First Inst ance but were courts of special
jur isdict io n. Under B.P. Blg. 129, they have been
int egrat ed into the Regional Trial Courts as branches
thereof.
b. Courts of original jurisdiction: Those courts in which,
u nd er the law, act io ns or proceedings may originally be
commenced.
Courts of appellate jurisdiction: Courts which have the
power to review on appeal the decisions or orders of a
lower court.
c. Superior courts: Courts which have the power of
review or supervision over anot her and lower court.
Inferior courts: Those which, in relation to anot her
court, are lower in rank and subject to review and super•
vision by the lat t er.
While, in a generic sense, a court is considered an
inferior court in relat ion to the powers of anot her tribunal
higher in rank, in its technical sense and unless otherwise
int e nded, it was for mer ly provided t hat the p hr ase
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R E M E D I A L LAW C O M P E N D I U M
"inferior court" referred to the t hen municipal or city

courts (former Sec. 1, Rule 5, in relat ion to R.A. 3820 and
R.A. 3828), now called Met ropolit an, Municipal, and
Municipal Circuit Trial Courts. Note, also, t hat under Sec.
2, Rule 5, the t erm "municipal t rial court" as used in t hese
revised Rules includes all ot her court s of t he same rank.
In legal circles, they are also called "courts of the first
level." In some official issuances, the Supreme Court refers
to t hem as "first level courts."
However, the "inferior courts" whose decisions are
subject to the appellat e jur isd ict io n of the S upr eme Court
(Sec. 17, R.A. 296) refer to all t he court s lower t han the
Supreme Court. The t erm "lower court s" is now used for
t hat purpose in t he 1987 Co nst it ut ion (Sec. 5[2], Art. VIII), in
lieu of "inferior courts" used in the 1935 and 1973
Const it ut ions.
d. Courts of record: Those whose proceedings are
enrolled and which are bound to keep a wr it t en record
of all trials and proceedings handled by t hem (see Luzano
vs. Romero, et al, L-33245, Sept. 30, 1971).
Courts not of record: Court s which are not required to
keep a wr it t en record or t r ans cr ip t of proceedings held
t her ein.
Prior to the effect ivit y of R.A. 6031 on August 4,
1969, inferior courts were not of record; but if a municipal
court of the capit al of a province or a city court tried a
c r i m i n a l case w he r e i n t he i mp o s a b l e p e n a lt y is
impr iso nment of more t han 6 mont hs but not exceeding
6 years and/or a fine of more t han P200 but not exceeding
P6.000, its proceedings were required to be recorded as
its decisions were appealable to the Court of Appeals or
the S upr eme Court (R.A. 296, as amended by R.A. 2613
and R.A. 3828, Sec. 87[c], last paragraph). However, under
R.A. 2613, amend ing Sec. 45, R.A. 296, all inferior court s
are now required to record t heir proceedings and are
accordingly court s of record.
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GE NER A L PRI NCI PLE S
e. Constitutional courts: Those which owe t heir

creation and existence to the Const itut ion and, therefore,
cannot be legislat ed out of exist ence or deprived by law
of the jur isdict io n and powers unqualifiedly vested in
them by the Const it ut ion. The Supreme Court and the
Sandiganbayan are the only courts specifically provided
for in the Const it ut io n. With regard to the latter, the
bet t er view is t ha t the S a n d i g a n b a y a n is only a
co nst it ut io na l l y- ma nd at e d court since, alt ho ugh its
existence is provided for in the Const itut ion, its creation
was by st at utory enact ment .
Statutory courts: Those creat ed, organized and
wit h j u r i s d i c t i o n e xc lu s ive l y d e t e r m i n e d by law.
Accordingly, all ot her court s in the P hilippines are
st atutory courts.
2. The Court of Tax Appeals created by R.A. 1125
has been held to be a part of the judicial system vested
with special jur isd ict ion to act only on protests of private
per so n s a d ve r s e l y affect ed by t he t ax, cust o ms or
assessment laws (Ursal vs. CTA, et al., 101 Phil. 209).
On March 30, 2004, said law was amended by R.A.
9282 expa nd ing t he jur isd ict io n of the Court of Tax
Appeals (CTA) and elevat ing its rank to the level of a
collegiate court with special jurisdict ion, of the same level
as t he Court of Appeals, and consist ing of a Presiding
Justice and 5 Associate Just ices who shall sit en banc or
in 2 divisions of 3 just ices each. The court shall, inter
alia, have exclusive appe llat e jur isd ict io n to review
decisions of the Commissioner of Int ernal Revenue in
disputes arising from the tax law administ ered by the
Bureau of I nt er nal Revenue, the Regional Trial Courts in
local tax cases, the Commissioner of Customs in matt ers
administered by the Bureau of Customs, the Central Board
of Assessment Appeals in assessment s of real property,
the S ecr et ar y of Finance and the Secretary of Trade
and Indust r y in mat t er s specified therein. The decision
3
of said court en banc may be reviewed by t he Supreme Court

on cert iorari pur suant to Rule 45 of the Rules of Court (see
Appendix CC).
3. The dist inct ion obt aining in ot her jur is dict io ns
bet ween courts of law and courts of equity, and among
civil, criminal and probate courts, does not apply in the
Philippines wherein all courts are court s both of law and
equit y (Rustia vs. Franco, 41 Phil. 280; Roa, et al. vs.
CA, et al., L 27294, June 28, 1983; Galman, et al. vs.
Sandiganbayan, et al., G.R. No. 72670, Sept. 12, 1986);
and Regional Trial Court s and, to a limited ext ent , the
lower court s, exercise jur isdict ion, according to the case
involved, as civil, criminal or probat e court s or courts of
land regist rat io n. Before B.P. Blg. 129 became operat ive,
t her e were special co urt s, such as t he Juve nile and
Domest ic Relat ions Court s, the Circuit Cr iminal Court s
and the Court s of Agrar ian Relat ions, which were courts
exercising only limited and special jur isdict io n.
4. . Under our pr esent st at ut or y and jur ispr udent ia l
taxonomy, jur isdict ion is classified, based on its nat ur e, as
follows:
a. General jur isdict io n, or the power to adjudicat e all
controversies except those expressly wit hheld from the
p le nar y po wer s of t he court ; and special or limited
jur isdict io n, which rest r ict s the court ' s jur isdict io n only
to part icular cases and subject to such limit at ions as may
be provided by the governing law.
b. Original jur isdict io n, or the power of the court to
t ake judicial cognizance of a case inst it ut ed for judicial
action for the first time under condit ions provided by law;
and appellate jur isdict io n, or the aut ho r it y of a court higher
in rank to reexamine t he final order or judgment of a lower
court which tried the case now elevat ed for judicial
review.
c. Exclusive jur isdict ion, or the power to adjudicat e a
case or proceeding to the exclusion of all other court s
4
GE NER A L PRINCIPLE S
at t hat st age; and concurrent jur isdict ion, somet imes

referred to as confluent or coordinate jurisdict ion, which is
the power conferred upon different courts, whet her of the
same or different ranks, to take cognizance at the same
stage of the same case in the same or different judicial
t errit ories.
Concurrent original jurisdict ion between trial courts
of different r anks has in the main been eliminated by B.P.
Blg. 129. For instance, there is no more concurrent
jur isd ict io n in adopt ion or guardians hip proceedings
between inferior court s and the present Regional Trial
Courts as was provided by the Judiciary Act with respect to
the former Court s of First Instance, which Act also
provided for concurrence in cr iminal cases and special civil
actions. However, as among courts of the same rank, it
appears t hat a phase of concurrent original jurisdict ion
still obt ains in some inst ances as, for example, in civil and
criminal cases for libel or the sett lement of the estate of a
no nr esident wit h propert ies in different judicial regions.
Wit hal, in point of strict law, these sit uat ions are mat t er s
of venue except in criminal cases for libel, since in
c r i m i n a l p r o c e d u r e , venu e is, as a rule, jur isdict ional.
For a discussion of other criminal cases co ver ed by the
same r u le, see the P r e l i m i n a r y Co nsiderat ions in
Criminal Procedure in Volume Two of this work. Where
such concurrence exists, the court first taking cognizance
of the case does so to the exclusion of the ot her courts,
alt hough the Supreme Court may order a transfer of venue
or place of trial to anot her court of competent
jur isdict ion.
At any rat e, B.P. Blg. 129 provides for concurrent
original jur isd ict io n bet ween the Supreme Court and
eit her the Court of Appeals or the Regional Trial Courts,
or among all t hree courts in certain cases. To illust rat e,
the Supreme Court has concurrent original jurisdict ion
with the Court of Appeals in pet it ions for the issuance of
writ s of cert iorar i, prohibit ion and mandamus against
5
the Regional Trial Courts; with the Court of Appeals and

the Regional Trial Courts over the same pet it ions against
the inferior courts; and with the Regional Trial Court s
in actions affecting ambassadors, other public minist ers
and consuls.
5. Also, under B.P. Blg. 129, delegated jur isdict io n
is provided for, i.e., the grant of aut hor it y to inferior
co urt s to hea r and d e t e r m i n e c a d a s t r a l and land
regist rat io n cases under cert ain condit ions (see Sec. 34,
infra); and special jur isdict io n, which is the power of
inferior courts to hear and decide pet it ions for a writ of
habeas corpus or applicat ions for bail in the absence of
all the Regional Trial Judges in the province or city (see
Sec. 35, infra). This lat t e r t ype of jur isd ict io n was formerly
included, wit h var iat io ns, in what was known as the
int erlocutory jur isdict ion of inferior court s under the
Judiciar y Act.
6. Me nt io n must also be made of the territorial

jur isdict io n of a court, which refers to the geographical
area wit hin which its po wer s can be exer cised. As
already stated, t his assumes importance in cr iminal cases
wherein considerat ions of the t erritory vis-a-vis the locus of
the cr ime det er mine not only t he venue of the case but the
jur isdict io n of the court; and, in civil cases, t he venue of
real or mixed act ions. In all cases, the S upr eme Court and
the Court of Appeals have nat ional jurisdict ion; the
Regional Trial Court s have regional jur isdict io n; and the
inferior court s have such t err it orial jur isdict io n as may be
defined by the S upr eme Court pur suant to Secs, 25, 28
and 31 , B.P. Blg. 129.
Other classifications of original jur isdict ion are based
on the su bject - mat t er or the nat ur e of the act ion being
t r ied by t he court, such as civil, cr im i na l, pr o bat e ,
admir alt y and mar it ime, juvenile and domest ic relat ions,
agrar ian, and land regist r at io n. Most of t hese different
ar eas of jur isdict io n are exercised by the r egular t rial
6
GENE R A L PRINCI PLE S
courts, since the special court s like the circuit cr iminal

courts and the juvenile and domestic relat ions courts have
been abolished. Wit h respect to the latt er, domest ic cases
are now generally handled by t he newly creat ed Family
Co ur t s, h e r e i n a f t e r d i s c u s s e d . O t he r s u b je c t s of
cont roversies r equir ing special t r a ining and knowledge,
such as t axat io n, labor and secur it ies, are handled by
quasi- judicial agencies, subject to the power of judicial
review by the appellat e court s.
7 . J u r i s d i c t i o n and ve nu e are d i s t i n g u i s h e d a s
follows:
a . J u r i s d i c t i o n is t he a u t h o r i t y to he a r and det er mine
a case; venue is the place where the case is to be heard or
t ried.
b. Jur isdict io n is a mat t e r of subst ant ive law; venue,
of procedural law.
c. Jur isd ict io n est abl is hes a relat io n bet ween the
court and the su bject - mat t er ; venue, a relat ion bet ween
plaint iff and defendant , or pet it io ner and respo ndent .
d. J u r i s d i c t i o n is fixed by law and c a n no t be
conferred by t he par t ies ; venue may be conferred by t he act
or agr ee me nt of the par t ie s (Manila Railroad Co. vs. Attorney-
General, 20 Phil. 523).
In cr imina l cases, the venue of t he crime goes into the
t er r it or ial jur isd ict io n of the court (Lopez vs. Paras, L-25795,
Oct. 29, 1966), hence where the crimina l act ion is
inst it ut ed not in the place specified by the Rules and
declared by t he su bst ant ive law as wit hin the t err it or ia l
jur isdict io n of the t r ial court, the mot ion to quash should
be grounded on lack of jur isd ict io n, and not improper
venue.
8. The aut hor it y to decide a case and not the decision
r ender ed t her ein is what makes up jur isdict io n. Where
t here is jur isd ict io n, the decision of all quest io ns ar ising
in the case is but an exercise of jur isdict ion (De la Cruz
7
vs. Moir, 36 Phil. 213; Associated Labor Union vs.

Ramolete, L-23527, Mar. 31, 1965). Consequent ly, a
court may have jur isdict ion over the case but at the
same t ime act in excess of such jurisdict ion.
9. The er ro r s which a court may co mmit in the
exercise of jur isdict ion differ from errors of judgment . The
for mer is r e viewa ble in an o r ig ina l act io n for cer t io r a r i ,
while t he lat t e r is corr ect ible by appea l (Henderson, et al.
vs. Tan, etc., et al., 87 Phil. 466; Maritime Co. of the Phil.
vs. Paredes, L-24811, Mar. 3, 1967; Bulan vs. Masakayan,
L-24428, June 26, 1968; Palma vs. Q & S, Inc., L-20366,
May 19, 1986). Errors of jur is d ict io n r e nde r a ju d g me n t
void or, at least voidable (see Sec. l[a] and [b], Rule 16; Rule
65), while errors of judgme nt are grounds for reversal only
if it is shown t hat prejudice has been caused t hereb y
(Banco Espahol-Filipino vs. Palanca, 37 Phil. 821; Bimeda
vs. Perez, et al., 93 Phil. 636).
10. Requisit es for the exercise of jur isdict io n and how

the court acquires such jurisdict ion:
a. Jurisdiction over the plaintiff or petitioner: This
is acquired by the filing of t he complaint , pet it io n or
init iat ory pleading before the court by the plaint iff or
pet it ioner.
b. Jurisdiction over the defendant or respondent:
This i s a c q u ir e d by t he vo l u nt a r y a p p e a r a n c e or
su b m is s io n by the d e fe nd a n t or r e s p o nd e n t to the court
or by coercive pro cess issued by t he court to him,
generally by the service of summo ns (Sharuff vs. Bubla, L-
17029, Sept. 30, 1964; Aban vs. Enage, L-30666, Feb.
25, 1983).
c. Jurisdiction over the subject-matter: This is conferred
by law and, unlike jur isdict io n over the part ies, cannot be
conferred on the court by the vo lunt ar y act or agr eement of
the part ies.
8
GENE R A L PRINCIP LE S
d. Jurisdiction over the issues of the case: This is

det er mined and conferred by t he pleadings filed in t he
case by the par t ies, or by t heir agr ee me nt in a pr e-t r ial
order or st ipulat io n, or, at t imes, by t heir implied consent
as by the failure of a part y to object to evidence on an
issue not covered by the pleadings, as provided in Sec. 5,
Rule 10 (see Lazo, et al. vs. Republic Surety & Insurance
Co., Inc., L-27365, Jan. 30, 1970).
e. Jurisdiction over the res (or the propert y or t hing
which is the subject of the lit igat ion): This is acquired
by the act ual or co nst r uct ive seizure by the court of the
thing in quest ion, t hus placing it in custodia legis, as in
a t t a c h m e n t or g a r n i s h m e n t ; or by pr o vis io n of law
which recognizes in the court the power to deal wit h the
propert y or sub je ct - mat t er wit hin its t err it or ia l jur is•
dict ion, as in land r e g i s t r at io n pr o ceed ings or suit s
involving civil st at u s or real propert y in the P hilippines of
a no nresident defendant .
In two inst ances, the court acquir es jur isdict io n to
try the case, even if it has not acquired jur isdict io n over
the person of a no nr es id e nt defendant , as long as it has
jur isdict io n over t he res, as when the action involves t he
personal st at u s of the plaint iff or propert y in the
Philippines in which the defe ndant claims an int er est
(see Sec. 15, Rule 14). In such cases, the service of
summo ns by publicat io n and not ice to the de fe nda nt
is merely to co mply w it h due p r o c e s s r e q u i r e m e n t s
(Banco Espanol-Filipino vs. Palanca, 37 Phil. 921; De
Midgely vs. Ferandos, et al., L-34314, May 13, 1975).
Under Sec. 133 of the C o r p o r a t io n Co de, while a for eign
corporat ion doing bus iness in the P hilippines wit hout a
license cannot sue or int er vene in any act ion here, it may be
sued or pr o c e e d e d a g a i n s t before our co urt s or
ad min ist r at ive t r ibu na ls.
11. . As a gener al proposit ion, t he jur isdict io n of

the court is det er mined by the st at ut e in force at the t ime of
the co mmence me nt of t he act ion (People vs. Paderna,
9
L-28518, Jan. 29, 1968; People vs. Mariano, et al., L-

40527, June 30, 1976; Lee, et al. vs. Presiding Judge, etc.,
et al, G.R. No. 68789, Nov. 10, 1986), unless such st at ut e
provides for its retroact ive applicat ion, as where it is a
curat ive legis lat io n (Atlas Fertilizer Corp. vs. Navarro,
etc., et al., G.R. No. 72074, April 30, 1987).
12. The settled rule is t hat the jur isdict io n of the court
over the subject - mat t er is det er mined by t he allegat io ns of
t he co mpla int (Edward J. Nell & Co. vs. Cubacub, L-20843,
June 23, 1965; Time, Inc. vs. Reyes, et al., L-28882,
May 31, 1971; Ganadin vs. Ramos, et al., L-23547, Sept.
11, 1980), but t his rule is not wit hout except ions. Thus, i t
was held t hat while the allegat ions in the complaint make
out a case for forcible ent r y, where t enancy is averred by
way of defense and is proved to be the real issue, the case
should be dismissed for lack of jur isdict io n as the case
should properly be filed wit h the t hen Court of Agr ar ia n
Relat io ns (Ignacio vs. CFI of Bulacan, L-27897, Oct. 29, 1971).
However, wit h the int egrat ion of the courts of agrar ia n
relat ions as branches of the Regional Trial Court s under
B.P. Blg. 129, the case was r equir ed to be filed wit h the
co r r espo nd ing Regional Trial Court if i t was wit hin t he
jur isd ict io n thereof, for assignment to the appropr iat e
br anch. Also, alt hough the allegat ions in the complaint
make out a case cognizable by a Regional Trial Court,
where, however, t he act s co mp la ined of are shown at t he
t r ia l to be int erwoven wit h an unfair labor pract ice case, the
act ion should be dismissed since jur isdict io n is vest ed in
the Nat ional Labor Relat ions Commission. This is so
since the Rules now per mit a mot ion to dismiss based
upon facts not alleged in the complaint (Mindanao Rapid
Co., Inc. vs. Omandam, et al., L-23058, Nov. 27, 1971, joint ly
decid ing t her e in L-23473, 23871, 24232, 24718 and
24956).
13. Where t he co mplaint is for act ual da ma ges of

P978, but the ot her claims for damages and at t or ney' s
10
GENE R A L PRINCIP LE S
fees bring t he tot al relief sought to more t han P 10,000

(which was t hen the jur isd ict io nal limit for civil cases in
the inferior court s), the t ot alit y of said claims put s the
case wit hin t he jur isd ict io n of the t hen Court of First
I nst ance and the t r ia l court er red in dis m is s ing t he
complaint upon its mere impression t hat the ot her claims
were "bloated" for the purpose of invoking its jur isdict ion,
w it ho u t he a r i n g and proof of such fact (Enerio vs. Alampay,
L-40010, May 26, 1975; Ratila vs. Tapucar, L-45018, Jan. 24,
1977). This doctrine is still applicable subject to the
incr ea sed jur is d ict io na l a mo u nt under B.P. Blg. 129
and su bseque nt legislat ion.
14. The jur isd ict io n of a court, whet he r in cr imina l or

civil cases, once it a t t a c h e s ca nno t be o ust ed by
subsequent happe nings or event s alt hough of a charact er
whic h wo uld have p r e v e nt e d ju r i s d i c t io n from at t aching
in t he first inst ance (Ramos, et al. vs. Central Bank, L-29352,
Oct. 4, 1971, and cases t her e in cited; Dioquino vs. Cruz, et
al., L-38579, Sept. 9, 1982) and it ret ains ju r isd ict io n unt il i
t finally disposes of the case (Republic vs. Pielago, et al.,
G.R. No. 72218, July 21, 1986).
15. The co nst it ut io nalit y of a st at ut e must be

quest ioned at t he ear lie st o ppo rt unit y, except in cr imina l
cases where the quest io n may be raised at any st age and,
in civil cases, if t he det er m i nat io n of the quest io n is
necessar y for the decision of the case, even if raised for
the first t ime on appeal. A co nst it ut io nal quest ion will
also be considered by the appellat e court at any t ime if it
involves the jur isd ict io n of the court a quo. The same
rule applies to or dinances (San Miguel Brewery, Inc. vs.
Magno, L 21879, Sept. 9, 1967).
16. Basic in the law on procedure is the doctrine t hat
the jur isdict io n of a court over the subject - mat t er of an
action is conferred only by the Co nst it ut io n or the law
and t hat the Rules of Court yield to subst ant ive law, in
11
this case, the Judiciar y Act and B.P. Blg. 129, both as
a me nded, and of which jur isd ict io n is only a par t .
Jur isdict io n cannot be fixed by the agr ee me nt of the
part ies; it cannot be acquired t hrough, or waived, enlarged
or diminished by, any act or omission of t he part ies;
neit her can it be conferred by the acquiescence of the
court (De Jesus, et al. vs. Garcia, et al., L-26816, Feb. 28,
1967; Calimlim, et al. vs. Ramirez, et al., L-34363, Nov.
19, 1982). Jur isd ict ion must exist as a mat t e r of law
(People vs. Casiano, L-15309, Feb. 16, 1961). Consequent ly,
quest ions of jur isdict ion may be raised for the first time
on appeal even if such issue was not r ais e d in t he
lower co urt (Government vs. American Surety Co., 11 Phil.
203; Vda. de Roxas vs. Rafferty, 37 Phil. 957; People vs.
Que Po Lay, 94 Phil. 640). A court can motu proprio dismiss
a case which is outside its jur isdict io n (Sec. 1, Rule 9).
17. Never t he le ss, in some cases, the pr inciple of
estoppel by laches has been availed of by our appellat e
court s to bar at t acks on jur isdict ion and t his principle
has been applied to both civil and cr iminal cases, t hus:
a. In the early case of Santiago, et al. vs. Valenzuela
(78 Phil. 397), it was held t hat if a motion to dismiss the
appeal, on the ground t hat said appeal was perfected out
of time, is filed for the first time wit h the appellat e court
after the appellant had paid the docket fee and the cost
of pr int ing the record on appeal, and after the filing of
appellant ' s brief, the appellat e court should deny the
motion as the appellee may be considered in estoppel by
his failure to object on t ime.
Thi s do ct r in e was s u b s e q u e nt l y a b a n d o ne d in
Miranda vs. Guanzon (92 Phil. 168) since the "requirement
regarding the perfect ion of an appeal wit hin the
r egleme nt ar y period is not only ma ndat o r y but
jur isdict ional," a ruling subsequent ly reit erat ed in
Garganta vs. CA (105 Phil. 412), Valdez vs. Ocumen
(106 Phil.
12
929), Galima vs. CA (L-21046, Jan . 31 , 1966), Antique

Sawmills, Inc. vs. Zayco (L-20051, May 30, 1966), Roque
vs. Vdo. de Del Rosario (L-24873, Sept. 23, 1966) and
Arellano, et al. vs. CA, et al. (L-31856, Nov. 24, 1972).
b. In t he lat er case, however, of Tijam vs. Sibong-
hanoy, et al. (L-21450, Apr il 15, 1968), the co-defendant
suret y co mpany never raised t he issue of j ur isdict io n in the
Court of F ir st I nst ance despit e several o pport unit ies to do
so and, alt ho ugh the claim being for only 1*1,908, the
case was wit hin the exclusive original jur isdict io n of
the munic ipal court. It was only aft er the court of Appeals
had affirmed the decision of the t rial court in favor of the
p la int if f bu t before the fina lit y of t hi s decision of the
Court of Appeals t hat the co-defendant suret y co mpany
filed its mot ion to dismiss on t he gr ound of lack of
origina l jur isd ict io n of the t r ia l court. Denying said
mot io n, the S upr e me Co urt st at ed : "Were we to sanct ion
such conduct on its part , we would in effect be declaring as
useless all t he proceedings had in the pr esent case since it
was commenced on July 19, 1948 and compel the judg me nt
credit ors to go up t heir Calvar y once more. The inequit y
and u nfa ir ness of t his is not only pat ent but revo lt ing. "
I t furt her st at ed t hat "after volunt ar ily submit t ing a cause
and enco unt er ing an adverse decision on the mer it s, it is
too late for the loser to quest ion t he jur isdict io n or power
of the court . . . i t is not right for a part y who has
affirmed and invoked the jur isdict io n of a court in a
par t icu lar mat t e r to secure an affir mat ive relief, to
a ft e r w a r d s deny t hat same jur is d ict i o n to escape a
penalt y, " cit ing Pindangan, etc. vs. Dans, et al. (L-14591,
Sept . 26, 1962), Young Men's Labor Union, etc. vs. CIR,
et al. (L-20307, Feb. 26, 1965) and Mejia vs. Lucas (100
Phil. 277). See also Capilitan vs. De la Cruz, (L-29536-37,
Feb. 28, 1974), Summit Guaranty vs. CA, et al. (G.R. No.
51139, Dec. 14, 1981), Tajonera, et al. vs. Lumaroza, et al.
(L-48907 & L-49035, Dec. 19, 1981), Nieva vs.
Manila Banking Corp. ( L- 30811 ,
13
Sept. 2, 1983), Florendo, et al. vs. Coloma, et al. (G.R.

No. 60544 , May 19, 1984), and Medijia vs. Patcho
(L-30310, Oct. 23, 1984).
c. In Rodriguez vs. CA (L-29264, Aug. 29, 1969), the
action involved property worth more t han P200.000, at
t hat time wit hin the exclusive appellat e jurisdict ion of the
Supreme Court. Despite several opportunit ies to raise t hat
issue in the Court of Appeals where the appeal was t aken,
defendant did not challenge the appellate jur isdict ion of
the court and did so only after decision was rendered
t herein against him. He raised the issue of jurisdict ion,
for the nullification of the decision of the Court of Appeals,
when the case was on appeal in the Supreme Court. The
S upr eme Court denied his plea under the doctrine of
estoppel by laches.
d. The same ruling was applied in Crisostomo vs.
CA, et al. (L-27166, Mar. 25, 1970) and Libudan vs. Gil (L-
21163, May 17, 1972) under the just ific at io n t hat "the
principle of estoppel is in t he int er est of a sound
administ rat ion of the laws," cit ing the Tijam case. The
Supreme Court pointed out t hat the doctrine of laches is
"based upon grounds of public policy which requires, for
the peace of society, the discouragement of stale claims"
and "is pr incipally a quest ion of t he inequity or unfair•
ness of per mit t ing a r ight or claim to be enforced or
asserted."
e. In Sarmiento vs. Salud (L-25211, Aug. 18, 1972),
the S upr eme Court, in resolving t he motion for recon•
siderat ion filed t her ein, held t hat while it is t rue t hat
a record on appeal must show on its face t hat it was
perfected on time and such requirement is jur isdict iona l
in nat ure, nevert heless if t he record on appeal does not
comply wit h this r equirement but the motion to dismiss
the appeal is filed more t han 6 mont hs after the appellee
filed his brief, the motion should be denied.
The same ruling was applied in Dequito vs. Lopez
(L-27757, Mar. 28, 1968) involving virtually t he same set
14
GENE R A L PRI NCIPLE S
of facts. These rulings would st ill apply in cases wher ein

a record on appeal is requir ed, as where mult iple appeals
are allowed or in special proceedings.
f. In Vera vs. People (L-31218, Feb. 18, 1970), it
was held t hat while a judg me nt is null and void where it was
pro mulgat ed when t he presid ing judge had alr ead y ceased
to hold office, since the accused failed to raise t hat issue in
the trial court and only did so after the Court of Appeals
had r e nder e d a jud g me n t adver se to him, i t would be an
injust ice if all t he proceedings had in the case would be
set aside since, after all, the court t hat r ender ed sent ence
wa s one of co mpet ent jur isd ict io n. The case of Carillo vs.
Allied Workers' Association of the Philippines (L-23689, Jul y 31
, 1968) was cited in suppo rt of this ruling.
g. In People vs. Casuga (L-37642, Oct. 22, 1973),
the accu sed wa s co nvict ed of gr av e sla nd er , whic h
offense was w it hin t he co ncur r e n t jur is dict io n of the
then Court s of Fir st I nst ance and t he munic ipal court s
of capit als of provinces or t he City Court s. I nst ead of
appealing to the t he n Court of Appeals or the S upr eme
Court, as would have been proper, he appealed to the
Court of Fir st I nst ance which affirmed said convict ion.
On his subsequent challenge to the appellat e jur isdict io n
exercised by the Court of F ir st I nst ance, the S upr eme
Court held t hat t he accused, having t ake n his appea l
to the Court of First I nst a nce, is in estoppel to challenge
the appellat e jur isd ict io n of the said court.
h. In People vs. Tamani ( L- 2216 0 - 6 1 , Jan . 21 ,
1974), alt hough the appeal of t he accused was demon•
strably filed out of t ime, the S upr e me Court nevert heless
reviewed the case and r endered a judgment on the mer it s
thereof, while declaring in the same decision the dismissa l
of the appeal, in view of the fact t hat the filing of the
appeal out of t ime was due to the fault of the defense
counsel and the furt her co nsider at io n t hat the briefs for
the part ies had alr eady been filed.
16
i. The doct rine laid down in Tijam vs. Sibong-

hanoy, supra, has been reit erat ed in many succeeding
cases and is still good case law. The rule up to now is
t hat a part y' s active part icipat ion in all st ages of a case
before the trial court, which includes invoking the court 's
aut hor it y to grant affirmative relief, effectively estops
such part y from lat er challenging t he j ur isdict io n of
t he said court (Gonzaga, et al. vs. CA, et al., G.R.
No. 144025, Dec. 27, 2002).
j. See, moreover, the summar y in Figueroa vs. People
of the Philippines (G.R. No. 147406, July 14, 2008) which
apparent ly present s the prevailing position of the Supreme
Court on the issue of when a lit igant is estopped by laches
from assailing t he jur isdict ion of a court, in light of its
other and subsequent holdings on the matt er.
18. Jur isdict io n over a person may also be acquired
even if he was never impleaded nor summo ned in the
act io n as a d e fe nd a n t i f he t he r e a ft e r vo lu nt a r i l y
submit t ed himself to the jur isdict io n of the court. Thus,
where the spouses volunt ar ily signed t he compromise
agr ee me n t to guar a nt e e the pa yme n t by the original
impleaded defendant s, and t hat compromise agr ee me nt
wa s appro ve d and mad e the bas i s of the j u d g m e n t
r ender ed by the court, said spouses are bound by t he
judg ment as they are in estoppel to deny the very aut ho•
rit y which t hey invoked. By vo lunt ar ily ent er ing into
the compromise agreement , t hey effectively submit t ed
t hemselves to the jur isdict io n of the court (Rodriguez,
et al. vs. Alikpala, et al., L 38314, June 25, 1974).
19. S ince a Co urt of F ir s t I ns t a nc e (now, the

Regio nal T r ia l Court ) is a court of ge ner a l o r ig ina l
jur isd ict io n, w he t he r a p ar t ic u la r ma t t e r sho uld be
resolved by it in the exercise of its general jur isdict io n,
or in its l i m it e d ju r is d i c t io n as a p r o bat e or land
r egist r at io n court, is not a jur isd ict io nal quest io n but
a p r o c e d u r a l quest io n invo lving a mode of pr act ic e
16
which, t herefore, may be waived (Manalo vs. Mariano,

et al., L-33850, Jan. 22, 1976; Santos vs. Banayo, L-
31854, Sept. 9, 1982). P a r e n t h e t i c a l l y , Sec. 2 of
P.D. 1529 has e liminat ed t he dist inct ion bet ween the
general jur isdict io n of a Regional Trial Court and the
limited jur isdict io n conferred upon it by the former law
when act ing as a cadast r al court (Ligon vs. CA, et al.,
G.R. No. 107751, June 1, 1995). However, the holding
t hat such s it uat io ns pr esen t only pro cedur al, and not
jur isdict io nal, quest ions st ill applies.
20. . Quest io ns invo lving o wner ship of or tit le to

real propert y should be lit igat ed in an or dinar y civil
act ion or in the proceeding where t he incident properly
belongs, before a court of gener al jur isd ict io n and not
before a land r eg ist r at io n co urt (Santos vs. Aquino, L-
32949, Nov. 28, 1980).
21 . S t at ut e s r egulat ing t he procedure of the court s

will be const rued as applicable to act ions pending and
undet er mined at the t ime of t he ir passage, but not to
actions which have alr eady become final and executory
(Borre, et al. vs. CA, et al., G.R. No. 57204, Mar. 14,
1988). Procedural laws are r et rospect ive in t hat sense
and to t hat ext ent (People vs. Sumilang, 77 Phil. 764;
Liam Law vs. Olympic Sawmill Co., et al., L-30771,
May 26, 1984; Yakult Philippines, et al. vs. CA, et al.,
G.R. No. 91856, Oct. 5, 1990). T hus, the provision of
B.P. Blg. 129 which e li minat ed the need for a record on
appeal was given ret roact ive effect to aut horize the giving
of due course to an appea l , which should have been
perfected in 1982 wit h t he r equir ed record on appeal, by
relieving the appellant of the need t herefor in line wit h
the change of procedure under B.P. Blg. 129 (Alday vs.
Camilon, G.R. No. 60316, Jan. 31, 1983; Ouano vs. CA,
et al., L-44823, June 27, 1985; De Guzman, et al. vs.
CA, et al, G.R. No. 52733, July 23, 1985; Lagunzad vs.
CA, et al, G.R. No. 52007, Sept. 24, 1987; Mun. Gov't of
17
Coron vs. Carino, et al., G.R. No. 65896, Sept. 24, 1987;
Sarmiento vs. Gatmaitan, et al., L-38173, Nov. 12, 1987).
However, new court rules apply to pending cases
only with reference to proceedings t herein which t ake
place after the dat e of t heir effectivit y. They do not
apply to the ext ent t hat in the opinion of the court t heir
applicat ion would not be feasible or would work injustice,
in which event the former procedure shall apply. Thus,
where the applicat ion of the Rule on Summar y Procedure
will mean t he dismissal of the appeal of the part y, the
same should not apply since, after all, the procedure
t hey availed of was also allowed UNDE R the Rules of
Court (Laguio, et al. vs. Garnet, et al., G.R. No. 74903,
Mar. 21, 1980).
22. Subst ant ive law is t hat part of the law which
creat es r ight s concerning life, libert y or propert y, or the
powers of inst r u me nt a l it ie s for the a d m i n is t r at io n of
public affairs (Primicias vs. Ocampo, 81 Phil. 650).
Procedural law refers to the adjective laws which prescribe
rules and forms of procedure in order t hat court s may be
able to administ er just ice (Lopez vs. Gloria, 40 Phil. 33).
S ubst ant ive law creat es, defines and r egulat es right s,
as opposed to "adjective or remedial law" which prescribes
the met hod of enforcing the r ight s or obt aining redress
for t hei r invas io n (Black's Law Dictionary, 6th Ed.,
p. 1429; cit at ions omit t ed).
Procedure is the mode of proceeding by which a legal
right is enforced, as dist inguis hed from the law which
gives or defines the right, and which, by means of the
proceeding, the court is to administ er. This t erm is com•
monly opposed to the sum of legal principles co nst it ut ing
the subst ance of the law, and denotes the body of rules,
w het he r of pract ice or plea ding, whereby r ig ht s are
effect uat ed t hro ug h t he successful applicat ion of t he
proper remedies (op. cit., pp. 1367-1368; id.).
®
In det er m in i n g w het he r a rule pr escr ibed by the

S u p r e me C o u r t a br id g e s , e n l a r g e s o r mo difies an y
subst ant ive right , the t es t i s w het he r t he rule really
r egu lat es pr o ced ur e , t hat is, t he judicial process for
enforcing rights and duties recognized by the substantive
law and for just ly ad min ist er ing remedy and r edr ess for
a disregard or infract ion of t hem. If the rule t akes away
a vest ed right , it is not procedural. If the rule cr eat es a
right, such as t he right to appeal, i t may be classified as
a subst ant ive mat t er ; but if it operates as a means of
implementing an existing right, then the rule deals
merely with procedure (Fabian vs. Desierto, etc., et al.,
G.R. No. 129742, Sept. 16, 1998).
I t is, t herefore, t he nat ur e and the pur pose of the
law whic h d e t e r m i n e s w he t he r i t i s s u b s t a nt i v e or
procedural, and not its place in t he st at ut e or its inclusio n
in a code. T hus, for inst ance, Art s. 539 and 1674 of the
Civil Code and Sec. 85, R.A. 296 provided injunct ive rules
in eject ment cases in t he t rial and appellat e st ages, but
these have been properly incorporat ed with modificat ions
as Secs. 8 and 9, r espect ive ly, of Rule 70 of the 1964
Rules of Court (now, Sec. 15 of revised Rule 70). These
subsequent ame ndat o r y provisio ns on injunct ions were
proper since t he mere fact t hat those provisions on in•
junct ions were formerly included in a subst ant ive st at ut e
or code does not convert t he m into or det r act from the
fact t hat t hey are procedur al laws, co nt rar y to common
mis impr essio n. In fact, t her e are many such procedural
rules found in the Civil Code or, for t hat mat t er, in ot her
codes or basica lly s u b s t a nt i v e laws bu t t hey do not
t hereby lose t heir char act er as procedural laws.
This mat t e r is being clarified and emphasized here
in view of the Co nst it ut io na l provision t hat the rules
which the S upr e me Court is aut hor ized to pro mulgat e
shall not diminish, increase or modify su bst ant ive r ight s
(Sec. 5 [5], Art. VIII, 1987 Constitution). The improbable
posit ion t hat a clearly procedural provision becomes a
19
subst ant ive law by the mere fact t hat it is included in a

co mp ilat io n, codificat io n or st at ut o r y e na c t me n t of
s u b s t a nt i v e r ig ht s , a lt ho u g h only t o ind ic at e the
r e me d ia l c o mp l e me n t for the e nfo r c e me nt t her eo f,
would effectively subvert the Const it ut ional int ent and
d i m i n is h the scope and ext e n t of the r u l e - m a k i n g
power of the Supreme Court.
20
I. CIVIL PRO C EDUR E
A. PR E L IM I NA R Y C O N S I D E R A T I O N S
1. The st udy of civil procedure includes ordinar y

civil a c t io ns , spec ia l civil a c t io n s an d p r o v i s i o na l
remedies. Special civil act ions are governed by specific
and i nd i v i d u a l r u le s s u p p l e m e n t e d b y the g e ne r a l
provisions on civil act ions.
2. Definit ion of t er ms:

a. Cause of action: The delict or wrongful act or
omissio n co mm it t e d by the de fe nd a n t in vio lat ion of
the pr imar y r ig ht s of t he plaint iff (Racoma vs. Fortich,
et al, L-29380, June 10, 1971).
b. Right of action: The r emedia l right or right to
relief gr ant ed by law to a part y to inst it ut e an act ion
against a person who has commit t ed a delict or wrong
against him.
The cause of act io n is the delict or wrong, while
the right of act ion is the r ight to sue as a consequence
of t hat delict. The quest ion as to whet her the plaint iff
has a cause of act ion is det er mine d by the a ver me nt s
in t he plead in g r eg ar d i n g the act s commit t ed by the
defendant ; whet he r such acts give him a right of act ion
is det er mined by the subst ant ive law. There can be no
r ight of act ion w it ho u t a cause of act ion being first
est ablished (see Espanol vs. The Chairman, etc. of the
PVA, L-44616, June 29, 1985).
A r ight of act ion is the r ight to present ly enforce a
cause of act ion — a r emed ia l r ight affording r edr ess
for the infr inge ment of a legal r ight belonging to some
definite person; a cause of act ion consist s of the operat ive
facts which give rise to such right of action. The r ight
of act ion does not arise unt il t he per for mance of all
condit ions pr ecedent to the act ion, and may be t ake n
away by the r u n n i n g of the s t a t ut e of l i m it a t io ns ,
21
t hrough an estoppel, or by other circumst ances which do

not affect the cause of action. There may be several
right s of action and one cause of action, and r ight s may
accrue at different times from the same cause (1 Am JUT 2d,
Sec. 2, p. 541).
c. Relief: The redress, protection, award or coercive
measure which the plaint iff prays the court to render in
his favor as a consequence of the delict commit t ed by the
defendant .
d. Remedy: The procedure or type of act ion which
may be availed of by the plaint iff as t he means to obtain
the relief desired.
e. Subject-matter: The t hing, wrongful act, con•
t ract or propert y which is direct ly involved in the act ion,
concer ning which t he wrong has been done and wit h
respect to which the cont roversy has ar isen (Yusingco,
et al. vs. Ong Ring Lian, L-26523, Dec. 24, 1971).
Thus, in a case for breach of cont ract, the contract
violated is the subject - mat t er; the breach by t he obligor
is the cause of action; the right of action is the consequent
subst ant ive right on the part jof the obligee to sue for
redress; the relief is the da mages or rescission or the act
which the plaint iff asks the court to order; and the remed y
is the t ype of act ion which may be availed of by the
plaintiff, which may be an act ion eit her for damages,
for rescission or for specific per for mance.
The subject - mat t er of a given case is det er mined not
by the nat ur e of the act ion t hat a part y is ent it led to
br ing but by t he nat ur e and char act er of t he pleadings
and issues submit t ed by t he part ies (Viray vs. CA, et al.,
G.R. No. 92481, Nov. 9, 1990).
3. Classificat ion of act ions:
a. Real action: One brought for the prot ection of
real r ight s, land, t e ne me nt s or her e d it a me nt s or one
founded on privit y of est at e only (Paper Industries Corp.
22
PRELIMINAR Y C ON SI D ER AT ION S
of the Phil. vs. Samson, et al., L-80175, Nov. 28, 1975).

Example: Accion reivindicatoria.
Personal action: One which is not founded upon t he
privit y of real r ight s or real propert y. Example: Action
for a sum of money.
Mixed action: One br o ught for prot ect ion or recovery
of real pr o per t y an d also for an awar d for da ma ge s
sust ained. Example: Accion publiciana wit h a claim for
damages.
For purposes of venue, a mixed act ion is governed
by the rules of venue in real act ions.
b. Action in rem: One which is not directed only
against par t icu lar per so ns but against the t hing itself
and the object of which is to bar indifferent ly all who
might be minded to mak e any object ion a gainst the r ight
sought to be enforced, hence the ju dg me n t t her e i n i s
binding t heoret ically upon the whole world. Example:
Expropriat ion.
Action in personam: One which is direct ed against
part icular per so ns on t he basis of t heir personal liabilit y
to est ablis h a claim ag a ins t t he m and the ju d g me n t
wherein is binding only upon t he part ies impleaded or
their successors in int er est . Example: Action for breach
of cont ract.
Action quasi in rem: One direct ed agains t part icular
persons but the pur po se of which is to bar and bind not
only said persons but any ot her person who claims any
int er es t in the pro pert y or r igh t subject of the suit .
Example: Judicial foreclosure of a mort gage (Ocampo
vs. Domalanta, L-21011, Aug. 30, 1967).
A proceeding for at t ach me n t of propert y is in rem if
the defendant does not appear in court, and in personam
if he a p p e a r s (Banco EspaAol-Filipino vs. Palanca,
supra).
23
c. Transitory action: One the venue of which is

dependent generally upon the residence of the part ies
regardless of where the cause of action arose. Example:
Personal act ion.
Local action: One which is required by t he Rules to
be inst it ut ed in a part icular place in the absence of an
agreement to the contrary. Example: Real action.
The class ificat io n of act io ns into r eal , per so na l
or mixed is based on the subject - mat t er thereof. With
respect to the binding effect of the relief sought or the
judg ment t herein, act ions are classified into act ions in
rem, quasi in rem or in personam. Hence, a real act ion
may be in personam, or a personal action may be in rem
(see Hernandez, et al. vs. Rural Bank of Lucena, Inc., L-
29791, Jan. 10, 1978). Transit or y or local actions are so
deno minat ed on the basis of the per missible venues
thereof.
4. In Yu vs. Pacleb, etc. (G.R. No. 172172, Feb. 24,
2009), the Supreme Court cited this extended discussio n
on classification of civil action: The settled rule is t hat the
aim and object of an act ion det er mine its char act er .
Whet her a proceeding is rem, or in personam, or quasi in
rem is det ermined by its nature^ind purpose, and by these
only. A proceeding in personam is a proceeding enforce
personal r ights and obligat ions brought against the person
and is based on the jur isdict ion of the person, alt hough it
may involve his right to, or the exercise of ownership of,
specific property, or seek to compel him to control or dispose
of it in accordance with the mandat e of the court. The
purpose of a proceeding in personam is to impose, t hrough
the judgment of a court, some responsibilit y or liabilit y to
compel a defendant to specifically perform some act or
actions to fasten a pecuniary liabilit y on him. An action
in personam is said to be one which has for its object a
judg me nt against the person, as dist inguished from a
judgment against the propert y to det ermine its st at e. It
24
PRELIMINAR Y CON S ID ER AT IO N S
has been held t hat an action in personam is a proceeding

to enforce personal r ight s or obligat ions, such act ion is
brought aga inst the person.
X X X
On the ot her hand, a proceeding quasi in rem is one

brought against perso ns seeking to subject the propert y
of such persons to the discharge of the claims assailed. In
an act io n quasi in rem, an i nd i v i d u a l is na me d as
defendant and the purpose of the proceeding is to subject
his int erest s t her ein to the obligat ions or loans burdening
the propert y. Actions quasi in rem deal wit h the st at us,
ownership or liabilit y of a part icular propert y but which
are intended to operat e on t hese quest ions only as between
part icular part ies to the proceedings and not to ascert ain
or cut off the r ight s or int er est s of all possible claimant s.
The judgment s t her ein are binding only upon the part ies
who joined in the act ion.
25
B. JURIS DICTIO N OF THE S UPREM E COURT
UNDER THE 1987 CO NS TITUTIO N
Article VI (Legislat ive Depart ment )

"Sec. 30. No law shall be passed incr eas ing the
a p p e l l a t e j u r i s d i c t i o n o f the S u p r e m e C o u r t a s
provided in t his Co nst it ut io n wit hout it s advice and
concurrence."
Article VII (Execut ive Depart ment )

"Sec. 4. (last par.) The Supreme Court, sit t ing en
banc, shall be the sole judge of all contest s relat ing to
the elect ion, r et ur ns and qualificat ions of the P r esident
or Vice- Pr esident , and may pr o mu lg at e rules for t he
purpose."
X X X
"Sec. 18. (t hir d par.) The S u pr e me Co ur t ma y

review, in an appropriat e proceeding filed by any cit izen,
the sufficiency of the factual basis of the procla mat io n of
mar t ia l law or the suspension of the privilege of the wr it
or the extension thereof, and must promulgat e its decision
t hereon wit hin t hirt y days from its filing."
Article VIII (Judicial Depart ment )

"Sec. 2. The Congress shall have the power to define,
prescribe, and apport ion the jur isdict io n of the var io us
court s but may not deprive t he S upr e me Court of its
jur isdict io n over cases e nu mer at ed in Section 5 hereof.
No law shall be passed reorganizing the Judiciar y
whe n i t u n d e r m i n e s the s e c u r it y of t e n u r e of it s
Members."
X X X
"Sec. 5. The Supr eme Court shall have the following

powers:
26
J U R I S D I C T I O N O F TH E S U P R E M E C O U R T
U N D E R TH E 1 9 8 7 C O N S T I T U T I O N
(1) Exercise orig inal jur isd ict io n over cases affect ing
ambassadors, ot her public minist er s and consuls, and
over pet it ions for certiorari, prohibit ion, mandamus,
quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appea l
or certiorari, as the law or the Rules of Court may
provide, final jud g me nt s and orders of lower court s
in:
(a) All c ase s i n w hic h the c o n s t i t u t io n a l i t y or
va l id it y of an y t r e at y , i n t e r n a t i o n a l or exe•
cut ive a g r e e m e n t , law, p r e s i d e n t i a l decr ee ,
procla mat io n, order, inst r uct io n, ordinance, or
regulat ion is in quest ion.
(b) All cases invo lving the legalit y of any tax, impost,
assessme nt , or toll, or any pena lt y imposed in
relat ion t her et o .
(c) All cases in which t he jur isd ict io n of any lower
court is in issue.
(d) All cr imina l cases in which the penalt y imposed
is reclusion perpetua or higher.
(e) All cases in which only an error or quest ion of
law is involved.
(3) Assign t emporar ily judges of lower court s to other
s t at io n s a s pu bl i c i nt e r e s t ma y r e q u ir e . Suc h
t empor ar y ass ig nme nt shall not exceed six mo nt hs
wit hout the consent of t he judge concerned.
(4) Order a change of venue or place of t r ial to avoid a
miscarr iage of just ice.
(5) P r o mu lg at e r ule s co ncer ning t he prot ect io n and
e n fo r c e me nt of c o ns t it u t io na l r ig ht s , p lea d ing ,
pract ice, and procedur e in all courts, the admission
to the pract ice of law, the I nt egr at ed Bar, and legal
assist ance to t he underpr ivileged. Such rules shall
provide a simplified and inexpensive pr ocedure for
the speedy disposit ion of cases, shall be uniform for

all courts of the same grade, and shall not diminish,
incr ea se, or modify su bst a nt iv e r ig ht s . Rules of
procedure of special courts and quasi-judicial bodies
shall r e ma in effective unless disapproved by the
Supreme Court.
(6) Appoint all officials and employees of the Judiciar y
in accordance with the Civil Service Law."
Article IX (Const it ut ional Commissions)

A. Common Provisions
"Sec. 7. Each Commission shall decide by a majorit y
vote of all its Members any case or mat t er brought before
it wit hin sixt y days from t he dat e of its submission for
decisio n or r eso lut io n. A case or mat t e r is deemed
submit t ed for decision or resolut ion upon the filing of
the last pleading, brief, or me mo r a ndu m required by
the rules of the Commission or by the Commission itself.
Unless ot herwise provided by t his Co nst it ut io n or by law,
any decision, order or ruling of each Commission may be
br o ugh t to the S upr e me Co ur t on certiorari by the
aggr ieved part y w it hin t hir t y days from receipt of a
copy thereof."
NO TES
1. See, in t his connect ion, the notes under Sec. 7,

Rule 56.
2. Cons ider ing t he provisions of B.P. Blg. 129, the
fact t hat appeals from t he S ecur it ie s and E xc ha ng e
Commission and in nat ur a lizat io n and d enat ur a lizat io n
cases should now be t aken to the Court of Appeals, and
all decis io ns of the c o ns t it ut io na l co mm is s io n s ar e
reviewable on original act ions of cert iorar i, all appeals
in civil cases to the S upreme Court can now be brought
only on pet it ion for review on cer t io r ar i (cf. Sec. 17,
28
J U R I S D I C T I O N O F TH E S U P R E M E C O U R T
U N D E R TH E 1 98 7 C O N S T I T U T I O N
R.A. 296, as ame nd ed by R.A. 5440; Santos, et al. vs.

CA, et al., G.R. No. 56614, July 28, 1987). Moreover, as
hereaft er explained, Sec. 9 of B.P. Blg. 129 was a mended
by R.A. 7902 to furt her vest appellat e jur isdict io n in the
Court of Appeals over judg me nt s, final orders, awards or
r eso lut io ns of the Civil Ser vice Co mmiss io n and t he
Cent ral Board of Assess ment Appeals.
29
C. THE JUDICIARY REO RGANIZATIO N ACT
OF 1980
ORGANIZATION
1. The Judiciar y Reorganizat ion Act of 1980 (Batas

Pambansa Blg. 129) took effect upon its appro val on
August 14, 1981 (Sec. 48). However, the t ransit or y pro•
vis io n (Sec. 44) dec lar ed t hat its p r o v is io n s "sha l l
i m m e d i a t e l y be car r ie d out in a cco r d a nc e wit h an
E xecut ive Or der to be issued by the P r e s id e nt . The
Court of Appea ls, t he Court s of Fir s t I nst a nc e , the
Cir cuit Cr i m ina l Co urt s, t he Juve ni l e and Do mest ic
Relat ions Court s, the Court s of Agr ar ian Relat ions, the
City Court s, the Municipal Court s and the Municipal
Circuit Court s shall cont inue to funct ion as present ly
const it ut ed and organized unt il the complet ion of the
reorganizat ion provided in t his Act as declared by t he
President . Upon such declar at ion, the said court s shall
be deemed aut o mat ically abolished and the incumbent s
thereof shall cease to hold office. The cases pending in
the old Court s shall be t ransferred to the appropr iat e
Court s const it ut ed pur suant to t his Act, t oget her wit h
the per t ine nt funct ions, records, equipme nt , propert y
and the necessar y personnel." The const it ut io nalit y of
t his Act was upheld by t he S upr e me Court en banc, wit h
one dissent , in De la Liana, et al. vs. Alba, et al. (G.R. No.
57883, Mar. 12, 1982).
2. . The Co urt of App e a l s wa s r e p la ce d by

the I nt er mediat e Appellat e Court consist ing of a
Presiding Just ice and 49 Associate Appellat e Just ices,
which shall sit in 10 divisions each composed of 5
members, except only for the pur po s e of exer c is i n g
a d m i n i s t r a t i v e , ceremonial or ot her non-adjudicat ory
funct ions in which inst ances it may sit en banc (Secs. 3
and 4).
30
J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 1 9 8 0
However, under Execut ive Order No. 33 (July 28,1986),

a me nd in g B.P. Blg. 129, the Co ur t of Appea l s wa s r e -
c r e at e d , co nsist ing of a P r e s id in g J ust ic e an d 50
Associat e J u s t ic e s , whic h shal l exer cise its power s ,
functions and dut ies t hro ugh 17 divisions, each composed
of 3 me mber s . It may sit en banc for t he pur po s e of
exer cis ing a d m i n i s t r a t ive , cer e mo n ia l or ot he r non-
adjudicat ory funct ions (Secs. 3 and 4, as amended).
A majorit y of the act ual me mber s of the Court shall
const it ut e a quorum for its sessions en banc. Three (3)
members shall co nst it ut e a quorum for the sessions of a
division. The unani mo u s vote of the t hree me mber s of a
division shall be necessar y for the pr o no unce me nt of a
decision or final reso lut ion, which shall be reached in
co nsult at io n before t he wr it ing of the opinion by any
member of t he division. In t he event t hat the t hr e e
members do not reach a unani mo u s vote, the Presiding
Just ice shall r equest t he Raffle Co mmit t ee of the Court
for t he des ig nat io n of two add it io na l Ju st ic e s to sit
t emporar ily wit h t hem, forming a special division of five
me mber s and the co ncur r e nc e of a majo r it y of such
division shall be necessar y for the pr o no unce me nt of a
decision or final r eso lut io n. The des ig nat io n of such
add it io na l J u s t ic e s sha l l be mad e st r ict l y by raffle
(Sec. 11, as amended).
E xecut ive Or de r No. 33 r epea le d Sec. 8 of B.P.
Blg. 129 which had provided for grouping of divisions
to handle specific classes of cases (Sec. 4). It furt her
provided t hat the t er m "I nt er med iat e Appellat e Court,
P r es id ing App e llat e Ju st ic e and Associat e Appe l lat e
Just ice(s)" used in B.P. Blg. 129 or in any ot her law or
execut ive order shall hereaft er mean Court of Appeals,
Presiding Just ice and Associate Just ice(s), respect ively
(Sec. 8).
Addit ionally, effective Februar y 2, 1997, B.P. Blg. 129
was fu r t he r a m e nd e d by R.A. 8246 (Appendix G),
pur suant to which t he Court of Appeals shall consist of
a Presiding Just ice and 68 Associat e Just ices, and shall

be composed of 23 divisions of 3 members each, with the
first 17 divisions stat ioned in Manila, the 18th to 20th
divisions in Cebu City, and the 21st to 23rd divisions in
Cagayan de Oro City.
3. The Courts of First Instance, the Circuit Crimina l
Courts, the Juvenile and Domest ic Relat ions Court s and
the Court s of Agrarian Relat ions have been int egrat ed
into the Regional Trial Courts for each of the 13 Judicial
Regions which replaced the former 16 Judicial Dist rict s,
each Regional Trial Court to consist of the nu mber of
branches provided in Section 14 of the Act.
4. The city courts and municipal courts in the

Nat ional Capit al Judicial Region have been merged into
a Met ropolit an Trial Court of Met ro Manila and were
converted into branches thereof (Sec. 27). The Supreme
Court shall const it ut e other Met ropolit an Trial Court s
in such other met ropolit an areas as may be est ablished
by law and whose t er r it o r ia l jur isd ict io n shall be co•
extensive wit h t he cities and municipalit ies comprising
such met ropo lit an area (Sec. 28).
5. The city courts in other cities which do not now

or hereaft er form par t of a met ropo lit an area shall be
known as Municipal Tr ial Courts, with t he corresponding
number of branches (Sec. 29), and the municipal courts,
whet her of an ordinar y municipalit y or of a capit al of a
province or sub- pro vince but not compr ised w it hin a
met ropolit an area and a municipal circuit, shall likewise
be known as Munic ipa l Tr ial Co urt s wit h the corre•
sponding nu mber of branches (Sec. 30). The municipa l
circuit courts shall be known as Municipal Circuit Trial
Court s and the Supreme Court may further reorganize
the same (Sec. 31).
6. Excepted from t he coverage of the Act are the

S u p r e me Co urt an d the S a n d i g a n b a y a n , bu t t hes e
32
courts have been affected by t he jur isdict io nal changes

introduced t herein. The provisions of the Judiciar y Act
of 1948 (R.A. 296, as amended), R.A. 5179, as amended,
the Rules of Court an d all o t he r st at ut e s , let t er s of
i n s t r u c t i o n s an d g e n e r a l o r d e r s o r p a r t s t her eo f,
inconsist ent with the provisions of this Act are repealed
or modified accordingly.
7. No ment ion is made of the Court of Tax Appeals

since the Act is basically on the mat t er of jur isdict iona l
changes. However, appeals from its jud g me nt s or final
orders, which used to be governed by R.A. 1125, were lat er
required to be t aken to the Court of Appeals pur sua nt to
Revised Ad minist r at ive Circular No. 1-95 of the S upreme
Court, which t her eaft er was adopt ed as Rule 43 of these
revised Rules. See, however, the more recent changes in
R.A. 9282 (Appendix CC).
JURI S DI CT I ON
I. I nt er med iat e Appellat e Court (now, the Court of
Appeals):
"Sec. 9. Jurisdiction. — The I nt er mediat e Appellat e
Court shall exercise:
(1) Original jur isd ict io n to issue wr it s of man•
damus, prohibit ion, certiorari, habeas corpus, and quo
warranto, and auxiliar y writ s or processes, whet her
or not in aid of its appellat e jurisdict ion;
(2) Exclusive or iginal jur isd ict io n over actions
for annu lme nt of judgme nt s of Regional Trial Courts;
an d
(3) Exclusive appellat e jurisdict ion over all final
judgment s, decisions, resolut ions, orders or awards
of Regional Tr ial Court s and quasi- judicial agencies,
i nst r u me nt a l it ie s, bo ar ds, or commissions, except
those falling wit hin t he appellat e jurisdict ion of the
Supreme Court in accordance wit h t he Const it ut ion,
33
R E M E D I A L LA W C O M P E N D I U M
the provisions of this Act, and of subpar agr aph (1) of

the t hird par agr ap h and su bp ar a gr a p h (4) of the
fourth paragraph of Section 17 of t he Judiciar y Act
of 1948.
The I nt er mediat e Appellate Court shall have the
power to try cases and conduct hear ings, receive
evidence and perform any and all acts necessary to
resolve factual issues raised in cases falling wit hin
its original and appellate jur isdict ion, including the
power to grant and conduct new t rials and furt her
proceedings.
These provisions shall not apply to decisions and
int er locut ory orders issued under the Labor Code
of the P hilipp ine s and by t he C e nt r a l Board of
Assessment Appeals."
The second paragr aph of Sec. 9 above set forth was
subseque nt ly a me nded by Sec. 5 of Execut ive Order
No. 33 to read as follows:
"The Court of Appeals shall have the power to
r eceive evide nc e an d per fo r m any an d all act s
necessary to resolve factual issues raised in (a) cases
falling wit hin its original jur isdict ion, such as actions
for annu lme nt of judg ment s of regional t rial courts,
as provided in par agr aph (2) hereof; and in (b) cases
falling wit hin its appellat e jur isd ict io n wherein a
mot ion for new t rial based only on the ground of
newly discovered evidence is grant ed by it."
However, effective March 18, 1995, Sec. 9 was furt her
amended by R.A. 7902 (Appendix F) and now provides:
"SEC. 9. Jurisdiction. — The Court of Appeals
shall exercise:
"(1) Original jur isdict ion to issue writ s of man•
damus, prohibit ion, certiorari, habeas corpus, and quo
warranto, and auxiliary writs or processes, whet her
or not in aid of its appellat e jur isdict ion;
34
"(2) Exclusive original jur isdict io n over act ions

for annu l me nt of judgment s of Regional Trial Court s;
and
"(3) Exclusive appellat e jur isdict ion over all final
judg ment s, decisions, resolut ions, orders or awards
of Regional Tr ial Court s and quasi- judicial agencies,
inst r u me nt a lit ies, boards or commissions, including
the Securit ies and Exchange Commission, the Social
Securit y Commission, t he Employees Compensat ion
Commission and the Civil Service Commission, except
those falling wit hin the appellat e jurisdict ion of the
S upr eme Court in accordance with t he Const it ut io n,
the Labor Code of the P hilippines under P resident ia l
Decree No. 442, as amended, the provisions of this
Act, and of su bpar agr ap h (1) of the t hird par agr aph
and s u bp a r a g r a p h (4) of t he fourt h p a r a g r a p h of
Section 17 of the Judiciar y Act of 1948.
"The Court of Appea ls shall have the power to
try cases and conduct hear ings, receive evidence and
perform any and all act s necessar y to resolve factual
issues raised in cases falling wit hin its original and
appellat e jur isdict ion, including the power to grant
and conduct new t ria ls or furt her proceedings. Trials
or hear ing s in the Court of Appeals must be con•
t inuo u s an d mus t be co mp let ed wit hi n t hr e e (3)
mo nt hs unless ext ended by the Chief Just ice."
NOTES
1. Unlike the provisions of Sec. 30 of the Judiciar y

Act, B.P. Blg. 129 vest ed the I nt er me d iat e Appe llat e
Court wit h original jur isdict ion to issue wr it s of man•
damus, prohibit ion, cert iorari, habeas corpus, and all other
auxiliar y wr it s and processes whet her or not in aid of its
appellat e jur isdict io n and added the special civil act ion of
quo warr ant o to such original jur isdict ion. Furt her mo re,
the I nt er mediat e Appellat e Court had exclusive original
35
jurisdict ion over actions for the annulme nt of judgment s

of the Regional Trial Courts. The lat ter, however, ret ain
t heir jur isd ict io n over act ions for the a nnu l m e nt of
j u d g me nt s of the infer ior co urt s (Sec. 19), i.e., the
Met ro po lit a n, Municipal and Munic ipal Circu it Tr ial
Courts (Sec. 25).
2. Amendatory of previous legislat ion, the appellat e
jurisdict ion of the t hen Int er mediat e Appellat e Court over
quasi-judicial agencies, or the so-called admin ist r at ive
t ribunals, was ext ended to and included the Securit ies
and E xc ha nge Co mmissio n and the different bo ards
which took t he place of t he quo nda m Public S er vice
Commission, i.e., the Boards of Tr ansport at io n, Commu•
nicat ions, and Power and Wat erworks, whose decisions
were t heretofore appealable to the Supreme Court. Cases
involving petit ions for naturalizat ion and denat uralizat io n
are now exclusively appealable to the Court of Appeals.
3. However, by specific provisions of Sec. 9 of this

Act, the S upr eme Court r et ained exclusive appe llat e
jur isdict ion over the decisions of the two const it ut ional
co mmissio ns, i.e., Commission on E lect io ns and Com•
mission on Audit (see 1973 Constitution, Art. XII-C and
D). Under the 1987 Const it ut ion, this exclusive appellat e
j u r is d i c t io n wa s mad e t o inc lude t he Civil S er vic e
Commission (Sec. 7, Art. IX-A). Also, likewise specifically
excluded from the appellat e jurisdict ion of the I nt er me•
diate Appellate Court were decisions and int er locut or y
orders under the Labor Code, such as those pro mulgat ed
by t he S ecr et ar y of Labor and E mp lo yme nt and t he
Nat ional Labor Relat ions Commission, those of the Central
Board of Assessment Appeals, and the 5 t ypes of cases
which fall wit hin t he exclusive appellat e jur isdict io n of
the Supreme Court under the 1973 Const itut ion (Sec. 5[2],
Art. X) an d r e p r o d u c e d in t he 1987 C o n s t i t u t i o n (Sec.
5[2J, Art. VIII), as amplified in the provisions of the Judiciar y
Act specified by said Sec. 9.
36
Furt her mo re, in view of the exclusionary provisio n

in said Sec. 9, the I nt er med iat e Appellate Court appeared
to have no appellat e jur isdict io n over the cases in the
specified par agr ap hs of Sec. 17 of the Judiciar y Act, i.e.,
t ho se invo lving co ns t it ut io na l , ta x or ju r is d ic t io na l
quest ions even if the same also involve quest ions of fact
or mixed quest ions of fact and law which were appealable
to the Court of Appeals under Sec. 17 of the Judic iar y
Act, as amended. It is believed t hat despite the present
formulat ion of said Sec. 9(3) of B.P. Blg. 129, the former
rule, vest ing the Court of Appeals wit h appellat e jur is•
diction in the aforest at ed cases whenever a factual issue
is involved, should st ill apply.
As indicated earlier, wit h t he a mend me nt s introduced
by R.A. 7902, the disposit ions of the Civil Service Com•
mission and t he Ce nt r a l Board of Asse ss ment Appeals
are now wit hin t he exclusive appellat e jurisdict ion of the
Court of Appeals.
4. . While the I nt e r m e d i a t e Appe l lat e Court
was aut horized to receive evidence on factual issues on
appeal, this evident iar y hear ing co nt emp lat es
"incident al facts" which were not touched upon or fully
heard by the trial court, and not an orig ina l and full
t r ial of t he main factual issue which properly pert ains
to the t rial court (Lingner & Fisher GMBH vs. IAC, et
al., G.R. No. 63557, Oct. 28, 1983). This po wer to
co nduct new t r ia l s or furt her proceedings is not
obligatory on the appellat e court and i t may r e ma n d
the case to t he t r ial court for t hat purpose (De la
Cruz, etc. vs. IAC, et al., G.R. No. 72981, Jan. 29,
1988).
5. The exclusive appellat e jur isdict io n of the Court

of Appeals provided for in Sec. 9(3) of B.P. Blg. 129 over
final orders or rulings of quasi-judicial inst rument alit ies,
boards or commissions refers to those which result ed from
proceedings wher e in the ad m in ist r at ive body involved
exercised quasi- judicia l funct ions. Such quasi- judic ial
37
action or discret ion involves the invest igat ion of facts,

holding of hear ings, drawing conclusions therefrom as a
basis for official action, and exercising discret ion of a
judicial nat ur e. Quasi- judicial adjudicat ion r equir es a
det er minat io n of right s, privileges and dut ies result ing
in a decision or order which applies to a specific sit uat ion.
Rules and regulat ions of general applicabilit y issued by
the administ rat ive body to implement its purely adminis•
trat ive policies and funct ions, or those which are merely
incident s of its inher ent administ r at ive funct ions, are
not included in t he appealable orders co nt emp lat ed in
said provision, unless otherwise specifically provided by
other laws governing the mat t er. Cont roversies arising
from such o r der s are wit hin t he co gniza nc e of the
Regional Trial Court s (Lupangco, et al. vs. CA, et al.,
G.R. No. 77372, April 29, 1988).
6. It was formerly held t hat the 30-day period to

appea l to t he I nt e r me d i a t e Appe l lat e Co urt from a
decision or final order of the S ecur it ies and E xchange
Co mmissio n, p u r s u a nt to its rules issued co nsequ e nt
to Sec. 6 , P.D. 902-A, had not been affected by B.P.
Blg. 129 which pr o vide s for a 15-day appea l per iod
from decisions of court s of just ice. The Securit ies and
Exchange Commission is not a court; it is an adminis•
trat ive agency. Repeals by implicat ion are not favored
(Gimenez Stockbrokerage & Co., Inc. vs. SEC, et al.,
G.R. No. 68568, Dec. 26, 1984).
7. The aforesaid doctrine was t aken into account by
the Supreme Court in an appeal from a decision of the
Insurance Commission to the t hen I nt er mediat e Appellat e
Court since Sec. 416(7) of the Insurance Code (P.D. 612,
as amended) provides for a 30-day period for appeal from
notice of a final order, ruling, or decision of t he Com•
mission. The Supreme Court noted t hat if t he provisions
of R.A. 5434 were to be applied, pur suant to Par. 22(c) of
the I nt er im Rules which gover ns appeals from quasi-
38
judicial bodies, Sec. 2 t hereof provides t hat the appea l

should be filed wit hin 15 days from notice of the ruling,
award, order, decision, or judgment or from the dat e of
its last publicat ion if required by law, or in case a motion
for recons iderat io n is filed wit hin the period for appeal,
t hen wit hin 10 days from notice or such publicat ion of
the resolut ion denying the mot ion for r eco nsider at io n.
Nevert heless, in line wit h the ruling in Gimenez, since
the Insurance Commission is likewise an administ rat ive
body, appeals from its final orders, decisions, resolut ions,
or awar ds may not necessar ily be deemed modified by
Sec. 39 of B.P . Blg. 129 which limit s the period to
appeal to 15 days (Midland Ins. Corp. vs. IAC, et al.,
G.R. No. 71905, Aug. 13, 1986; see also Zenith Ins. Corp.
vs. IAC, et al, G.R. No. 73336, Sept. 24, 1986; Malayan
Ins. Co., Inc. vs. Arnaldo, et al., G.R. No. 67835, Oct. 12,
1987).
8. The foregoing doctrines, however, are no longer

cont rolling in view of Cir cu lar No. 1-91 issued by t he
S upr e me Court on Febr uar y 27, 1991 which provided
t hat appeals from quasi- judicial agencies shall be t aken
to the Court of Appeals wit hin 15 days from notice or last
publicat io n of the ju dg me n t or final order. This was
more r ecent ly fur t her amplified by Revised Adminis•
t rat ive Circular No. 1-95 which took effect on Jun e 1,
1995, and has now been formulat ed as Rule 43 of these
revised Rules.
9. It will also be recalled t hat appeals from the
decisio ns, orders or rulings of the t hree co nst it ut io nal
commissions, i.e., Civil Service Commission, Commission
on Elect ions and Commission on Audit, may be brought to
the S upr e me Court on cert ior ar i wit hin 30 days from
receipt thereof unless ot herwise provided by the Consti•
t ut io n or by law (Sec. 7, Art. IX-A, 1987 Constitution).
However, as earlier st ated, Sec. 9 of B.P. Blg. 129 which
originally co nt ained the same jur isd ict io na l rule was
subsequent ly amended by R.A. 7902, effective March 18,
39
1995, to provide t hat appeals from t he Civil Service

Commission should be taken to the Court of Appeals.
10. In the landmark decision in St. Martin Funeral
Home vs. NLRC, et al. (G.R. No. 130866, Sept. 16, 1998),
the Supreme Court clarified t hat ever since appeals from
the NLRC to the Supreme Court were eliminat ed, the
legislat ive int endment is t hat the special civil act ion of
cert iorari was and still is the proper vehicle for judicial
review of decisions of the NLRC. All references in t he
amended Sec. 9 of B.P. Blg. 129 to supposed appeals from
the NLRC to the S upr eme Court are int er pr et ed and
declared to mean and refer to petit ions under Rule 65.
Consequent ly, all such petit ions should be init ially filed
in the Court of Appeals in strict observance of the rule on
hierarchy of courts. The concurrent original jur isdict ion
of t he S upr eme Co urt can be ava iled of only UNDE R
compelling and except ional circumst ances.
11. . On a different r at io nale, t he S upr e me

Court ruled in Fabian vs. Desierto, etc., et al. (G.R. No.
129742, Sept . 16, 1998) t hat appea l s from the Office of
the Ombudsman in administ rat ive disciplinar y cases
should be t aken to the Court of Appeals via a verified
pet it ion for review under Rule 43 . Striking down as
unconst it ut ional Sec. 27, R.A. 6770 ( Om bu ds ma n Act
of 1989) which a u t ho r i z e d suc h appe a l t o the
S u p r e m e Co urt "in a cco r d a nc e wit h Rule 45," i t
wa s po int e d out t hat appeals under Rule 45 apply
only to judgment s or final orders of the courts
enumer at ed under Sec. 1 thereof, and not to those of quasi-
judicial agencies. Furt her mo r e, t hat provision of R.A.
6770 violates the proscript ion in Sec. 30, Art. VI of the
1987 Co nst it ut io n against a law which increases the
appellat e jurisdict ion of the Supr eme Court wit hout its
advice and consent.
II. Regional Trial Courts:

"SEC. 19. Jurisdiction in civil cases. — Regio nal
40
Trial Court s shall exercise exclusive original jur isdict ion:

(1) In all civil act ions in which the subject of the
lit igat ion is incapable of pecuniar y est imat ion;
(2) In all civil act ions which involve the tit le
to, or possession of, real propert y, or any int er est
t her ein, where t he assessed value of the pro pert y
involved exceeds Twent y t housand pesos (P20.000.00)
or, for civil act ions in Met ro Manila, where such value
exceeds Fift y t ho u sa n d pesos (P50.000.00) except
act ions for forcible ent r y into and unlawful det ainer
of lands or buildings, original jur isdict io n over which
i s co nferred upon the Met ro po lit a n Trial Co urt s,
Municipal Trial Court s and Municipal Circuit Tria l
Courts;
(3) In all act io ns in ad m ir a lt y and mar it i m e
jur isdict io n where the demand or claim exceeds One
hundr ed t ho usand pesos (F100.000.00) or, in Metro
Manila, where such demand or claim exceeds Two
hundr ed t housand pesos (P200.000.00);
(4) In all mat t er s of probat e, both t est at e and
i n t e s t a t e , wher e the gro s s va lu e o f the e s t at e
exceeds One hu ndr ed t ho usand pesos ( P 100,000.00)
or, in probat e mat t er s in Metro Manila, where such
gross value exceeds Two hundr ed t housand pesos
(P200,000.00);
(5) In all act io n s invo lving the co nt r ac t of
mar r iage and mar it al relat ions;
(6) In all cases not wit hin t he exclusive jur is•
d ict io n of an y co ur t , t r i b u n a l , per s o n or body
exercising [jurisdict ion of any court, t ribunal, person
or body e xe r c i s i n g ] ju d i c ia l or q u a s i - j u d i c i a l
funct ions;*
(7) In all civil act io ns specia l pr o cee d i ng s *
' T h e b r a c ke t e d po r tio n in Par . (6 ) a p p e a r s to be a t y p o g r a p h i c a l
e r r o r by r e p e t i t io n , wh i l e the i n d i c a t e d po r tio n in Par. (7) sho u l d hav e a
c o n j u n c t i o n b e t we e n "civ il ac t io ns " an d "s pe c ial p r o ce e d i n g s . "
41
falling wit hin the exclusive original jur isdict ion of a

Juvenile and Domest ic Relat ions Court and of the
Court of Agrarian Relat ions as now provided by law;
and
(8) In all ot her cases in which the de ma nd ,
exclusive of int er est , damages of what ever kind,
attorney' s fees, lit igat ion expenses and costs or the
value of t he propert y in cont roversy exceeds One
hundr ed t ho usand pesos (PlOO.OOO.OO) or, in such
ot her cases in Met ro Manila, where t he de ma nd,
exclusive of the abovement ioned items exceeds Two
hundr ed t housand pesos (P200.000.00)." (As amen•
ded by R.A. 7691)
X X X
"Sec. 21 . Original jurisdiction in other cases. —

Regional Trial Court s shall exercise original jur isdict ion:
(1) In t he issuance of wr it s of certiorari, prohi•
bition, mandamus, quo warranto, habeas corpus, and
injunct ion which may be enforced in any par t of t heir
respect ive regions; and
(2) In act ions affecting ambassador s and other
public minist ers and consuls."
"Sec. 22 . Appellate jurisdiction. — Regional Tr ial
Courts shall exercise appellat e jur isdict ion over all cases
decided by Met ropo lit an Trial Court s, Municipal Trial
Courts, and Municipal Circuit Trial Court s in t heir re•
spect ive t er r it or ia l jur isd ict io ns. Such cases shall be
decided on the basis of the ent ire me m o r a nd a and/or
briefs as may be submit t ed by the part ies or required by
the Regional Trial Court s. The decisions of the Regional
Trial Court s in such cases shall be appealable by petit ion
for review to the I nt er med iat e Appellat e Court which
may give i t due course only when t he pet it ion shows
prima facie t hat the lower court has committed an error of
fact or law t hat will war r a nt a reversal or modification of
42
the decision or judg me nt sought to be reviewed."

"Sec. 23 . Special jurisdiction to try special cases. —
The S upr eme Court may designat e cert ain br anches of
the Regional Trial Court s to hand le exclusively criminal
cases, juvenile and domest ic r elat io ns cases, agr ar ia n
cases, ur ban land reform cases which do not fall under
the jur isd ict io n of quasi- jud ic ia l bodies and agencies,
and/or such ot her special cases as the S upr e me Court
may det er mine in the int er est of a speedy and efficient
administ r at io n of just ice."
NO TES
1. R.A. 7691 , which took effect on April 15, 1994

(see Appendix N), e xp a nd e d the ju r i s d ic t io n of the
met r o po l it a n , mu n i c ip a l an d mu n ic ip a l c ir cu it t r ia l
court s in civil an d cr imina l cases, t he ame nded civil
jur isdict ion being set out hereina ft er. In Administ rat ive
Circular No. 09-94 (see Appendix O), the S upr eme Court,
by way of gu id e l i ne s in t he i m p l e m e nt a t io n of said
amendat or y Act, made the clarification t hat:
"2 . The e xc l u s io n of t he t er m ' d a m a g e s of
w hat e ver kind' i n d e t e r m i n i n g t he ju r is d ict io na l
a mo un t UNDE R Sect io n 19(8) and Sect ion 33(1)
of
B.P. Blg. 129, as amended by R.A. No. 7691, applies
to cases where the da mage s are merely incident al
to or a co nsequence of the mai n cause of act ion.
However, in cases where the claim for damages is the
main cause of action, or one of the causes of action,
t he a mo u n t of such claim shall be cons ider ed in
det er mining t he jur isdict io n of the court."
This j u r i s d i c t i o n a l rul e wa s app l ie d in Ouano vs.
PGTT International Investment Corp. (G.R. No. 134230,
July 17, 2002).
On t he mat t e r of the jur isdict io nal amo unt in civil
cases, R.A. 7691 addit ionally provides:
43
"Sec. 5. After five (5) years from t he effectivity of

t his Act, the jur isd ict ional a mo u nt s ment io ned in
Sec. 19(3), (4), and (8); and Sec. 33(1) of Bat a s
P amba nsa Blg. 129 as amended by t his Act, shall
b e a d ju st e d t o Two hu nd r e d t ho u s a n d peso s
(P200.000.00). Five (5) years t hereaft er, such jur is•
dictional amount s shall be adjusted further to Three
hu ndr ed t housand pesos (P300,000.00): Provided,
however, That in t he case of Met ro Ma nila, t he
a bo ve me nt io ned ju r is d ict io na l a mo u nt s shall be
adjust ed aft er five (5) year s from the effect ivit y
o f t hi s Act t o Fou r hu nd r e d t ho u s a n d peso s
(P400.000.00)."
2. . The jur isd ict io n of the Regio na l Trial

Court s differs from t hat of the former Courts of First
Inst ance in the following respects:
a. While UNDE R t he Jud ic iar y Act, all act io ns in
admir a lt y and mar it ime jur isd ict io n were exclusive ly
cognizable by the Court of First Inst ance regardless of
the value of the pr o pert y involved or the a mo u n t of
pla int iffs claim (Sec. 44[d]), t hey are now wit hin t he
exclusive jur isdict ion of the Regional Trial Courts only if
the value or claim exceeds P 100,000 or, in Metro Manila,
P200,000, otherwise jur isdict ion is vested in the inferior
courts (Sec. 33).
b. The Jud ic iar y Act vest ed the Court s of F ir s t
I nst anc e wit hexclusive jur isd ict io n in all mat t er s of
probat e, whet her t est at e or int est at e (Sec. 44[e]). The
Regional Trial Courts now have such exclusive jur isdict ion
if t he gross value of the est at e exceeds P 100,000 or, in
Metro Manila, P200.000, otherwise the proceedings are
cognizable by the inferior court s (Sec. 33).
c. Actions for annulme nt of marr iage and all ot her
special cases and proceedings not ot herwise provided for
were exclusively cognizable by the Courts of First Inst ance
under the Judic iar y Act (Sec. 44[e]) or, UNDE R
special
44
leg is lat io n, by the J u ve n i l e an d Do me st ic R e lat io n s

Courts. The Juvenile and Domest ic Relat ions Court s and
the Court s of Agr ar ian Reform having been int egrat ed
into t he Regio nal Tr ia l Co urt s, the lat t e r shall have
exc lu s ive o r ig i na l j u r i s d i c t io n over sai d case s an d
proceedings but t hey shall cont inue to apply the special
rules of procedure under the pr esent laws provided for
domest ic relat ions cases and agr ar ia n cases, unless the
same are subsequent ly amended by such law or rules of
court as may be pro mu lgat ed (Sec. 24).
3. The writ s of cert iorar i, prohibit io n, ma nda mu s,

quo warr ant o , habeas corpus, and injunct ion issued by
the R e g io na l T r ia l C o u r t s ar e e n fo r c e a b l e w it h i n
their respect ive regions, while under the Judiciar y Act
(Sec. 44[hJ), t hes e could be enforced only w it hin t he
respect ive provinces and dist rict s under the jur isdict io n
of the Court s of First I nst ance.
4. . The co ncur rent jur isd ict io n bet ween the

Court s of First I nst ance and t he inferior court s in cases
provided for under t he Judic iar y Act has been
elim inat ed. The Regional Tr ia l Court s shall exercise
exclusive original jur isdict io n in gua r d ia ns hip and
adopt ion cases which, under the a me n d me nt s of t he
Judic iar y Act by R.A. 643 and R.A. 644, were wit hin
t he confluent jur isd ict io n of the inferior co urt s. The
co ncurr ent jur isdict io n bet ween the Court s of Fir st
I nst ance and the City Court s over the cases st at ed in
Sec. 3, R.A. 6967, i.e., pet it io ns for change of name of
nat uralized cit izens, cancellat io n or correct ion of
t ypo gr aphica l er ror s in the city regist r y, and e ject me nt
cases wher e t he issue of o wner ship is involved, ha s
likewise been e l i minat ed. Said law i s deemed
r epea led by B.P. Blg. 129 (Lee vs. Presiding Judge,
etc., et al., G.R. No. €8789, Nov. 10, 1986).
5. . The concurrent jur isdict ion bet ween the
Court s o f F ir s t I n s t a n c e an d infer io r co ur t s ha v i n
g bee n abolished, the decisions of the inferior court s in
45
all cases
46
are now appealable to the Regional Trial Courts, except

cadast r a l and land r egist r at io n cases decided by t he
inferior courts in the exercise of delegated jur isdict io n
(Sec. 34).
6. Admiralt y jurisdict ion regulates marit ime mat t ers
and cases, such as cont ract s relat ing to the t r ade and
bus iness of the sea and essent ially fully mar it i me in
charact er, like mar it ime services, t ransact io ns or casual•
ties (see Macondray & Co. vs. Delgado Bros., Inc., 107
Phil. 781; Delgado Bros., Inc. vs. Home Insurance Co.,
L16131, Mar. 27, 1961; Elite Shirt Factory, Inc. vs.
Cornejo, L-26718, Oct. 31, 1961; Negre vs. Cabahug
Shipping & Co., L-19609, April 29, 1966).
7. Civil act ions in which the subject of the lit igat ion
is incapable of pe cu niar y e st imat io n have invar iabl y
been w it hin t he exclusive original jur isdict io n of t he
courts of general jurisdict ion, i.e., the former Court s of
First I nst ance, now the Regional Trial Co urt s. T hus,
act ions for support which will require t he det er minat io n
of the civil st at us or the r ight to support of the plaintiff,
those for the a nnu l me nt of decisions of lower court s, or
those for the rescission or refor mat io n of cont ract s are
incapable of pecuniar y est imat io n.
a. Where the action supposedly for a sum of money
required the det er minat io n of whet her the plaint iff had
complied wit h the condit ion pr ecedent in t he co nt r act
which, if complied wit h, would ent it le him to the award
of t he amo un t claimed, the act io n is one for specific
per fo r mance and not for a su m of money, hence the
relief sought was incapable of pecuniar y est imat io n and
was wit hin the jur isd ict io n of the t hen Court of Fir st
I nst anc e (Ortigas & Co. vp. Herrera, et al., L-36098,
Jan. 21, 1983).
b. An action to compel the obligor to complet e the
const ruct ion of a house is one for specific per for mance
45
and is incapable of pecuniar y est imat io n, hence jurisdic•

tion is vest ed in t he Regional Trial Court. Where the
complaint in said case, however, cont ains an alt er nat ive
pr a ye r for the p a y m e n t to the obligee of a su m not
exceeding t he pr ese nt jur isdict io nal amo unt of F100,000,
or in Metro Manila, P200.000, in lieu of the complet ion of
the construct ion, jur isdict io n is in the inferior court as
such alt er nat ive prayer makes the action one for a sum
of money (see Cruz vs. Tan, 87 Phil. 627).
c. An act ion for P1.250 and/or for the foreclosure of
a chat t el mort gage of personalt y wort h F15,340 (now, it
should be more t ha n PIOO.OOO or, in Met r o Manila,
P200.000 ) wa s UNDE R the jur isd ict io n of the Court of
First I nst ance because of t he lat t e r alt er nat ive relief
sought (Good Development Corp. vs. Tutaan, et al., L-
41641, Sept. 30,1976). Jur isdict io n was likewise vested in
the Court of Fir st I nst ance where none of the claims of
the par t ner s hip ' s credit ors exceeded P2.000 but the suit
also sought the nullificat ion of a cont ract executed by
and bet ween the former par t ner s, as the lat t er cause of
action is not capable of pecuniar y est imat io n (Singson, et
al. vs. Isabela Sawmill Co., et al., L-27343, Feb. 28, 1979).
d. Wher e the case hinges upon t he correct int er•
pret at ion of the renewal clause of a lease contract, the
action is not for unlawful det ainer but one which is not
capable of pecuniar y est imat io n and is, therefore, outside
the jur isdict io n of the inferior court (Vda. de Murga vs.
Chan, L-24680, Oct. 7, 1968). But where the eject ment
case was decided against the defendant s because of non•
payme nt of r e nt a ls, alt ho ugh the int er pr et at io n of the
renewal clause of the lease cont ract was also involved
t herein, the same was wit hin the jur isdict ion of the in•
ferior court s (Nueva Vizcaya Chamber of Commerce vs.
CA, et al., L-49059, May 29, 1980).
47
III. Family Courts:

1. On October 28, 1997, Congress enact ed R.A.
8369 ( F a mi l y Co ur t s Act of 1997; see Appendix P)
est ablishing a Family Court in every province and city
and, in case the city is the provincial capit al, t he Family
Court shall be est ablished in the municipalit y wit h the
highest populat ion. Pending the est ablishment of such
Family Court s, the Supreme Court shall designat e the
same from among the br a nc he s of the Regio nal Trial
Court s enumer at ed in the Act; and in ar eas where t here
are no Family Co urt s, t he cases which ar e w it hin its
exclusive original jur isdict ion shall be adjudicat ed by the
Regional Trial Court.
2. . Furt her amendat ory of the provisions of B.P. Blg. 129, as

amen exclusive original jur isdict ion in the following civil cases
or proceedings:
a. Pet it io ns for guar dia ns hip, custody of children,

habeas corpus in relat ion to the latt er;
b. . P et it io n s for a do pt io n of c h i l d r e n an d
the revocat ion thereof;
c. Complaint s for annu lme nt of marr iage, declarat ion
of nullit y of marr iage and those relat ing to mar it al st at us
and propert y relat ions of husband and wife or those living
t o get her UNDE R different st at u s and a gr e e me nt s , and
pet it ions for dissolut ion of conjugal part ner ship of gains;
d. Pet it ions for support and/or acknowledgment ;
e. S ummar y judicial proceedings brought under the
provisions of Execut ive Order No. 209 (Family Code of
the Philippines);
f. Pet it ions for declarat ion of st at us of children as
abando ned, dependent or neglected children, pet it ions
for volunt ary or invo lunt ar y commit ment of children; the
su s pe ns io n , t e r m i n a t io n , or r e st o r at io n of p a r e nt a l
aut hor it y under P.D. 603, Execut ive Order No. 56 (Series
48
of 1986), and ot her relat ed laws;

g. Pet it ions for the const it ut io n of the family home;
and
h. Cases of domest ic violence against women and
children, as defined t herein, but which do not const it ut e
cr iminal offenses subject to cr imina l proceedings and
penalt ies.
3 . I m p l e m e n t i n g the fo r ego ing pr o vis io ns , the

Supreme Court approved on March 4, 2003 the Rule on
D e c l a r a t io n of Abso lut e Null it y of Void M a r r i a g e s
an d A n n u l m e n t o f Vo ida bl e M a r r i a g e s i n A.M.
No. 02-11-10-SC (see Appendix AA) and the Rule on Lega
l S e p a r a t i o n i n A.M. No. 02 - 11 - 11 - S C (see Appendix
BB).
IV. Met ropo lit an Trial Court s, Municipal Trial Court s

and Municipal Circuit Trial Court s:
"SEC. 33 . Jurisdiction of Metropolitan Trial Courts,

Municipal Trial Courts and Municipal Circuit Trial
Courts in Civil Cases. — Met ro po lit a n Tr ia l Co urt s,
Munic ip a l T r ia l Co ur t s an d Munic ip a l C ir cuit Tr ia l
Courts shall exercise:
(1) E xc lus ive o r ig ina l jur is d ict io n over civil
act ions and pro bat e proceedings, t est ate and int e•
st at e, including t he grant of provisio nal remedies in
pr o pe r case s , wher e the va lu e o f t he p e r so na l
propert y, est at e, or amount of the dema nd does not
exceed One hundr ed t ho usand pesos (P 100,000.00)
or, in Metro Manila where such personal propert y,
est at e or amount of the demand does not exceed Two
hundr ed t ho usand pesos (P200.000.00), exclusive of
int erest, damages of what ever kind, attorney' s fees,
lit igat ion expenses, and costs, the amount of which
must be specifically alleged: Provided, That int erest,
damages of what ever kind, attorney' s fees, lit igat ion
49
e xp e ns e s , an d co st s sha l l b e inc lud e d i n the

det er minat io n of the filing fees: Provided further,
That where t her e are several claims or causes of
act ion bet ween the same or different par t ies em•
bodied in the same complaint , the a mo unt of the
demand shall be the totalit y of the claims in all t he
causes of action, irrespect ive of whet her the causes
of act io n aro s e ou t of the sam e or d i f fe r e n t
t ransact ions;
(2) Exclusive original jur isdict ion over cases of
forcible entry and unlawful det ainer: Provided, That
when, in such cases, the defendant raises the question
of owner ship in his pleadings and the quest io n of
possession cannot be resolved wit hout deciding the
issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession; and
(3) Exclusive origina l jur isd ict io n in all civil
actions which involve title to or possession of, real
propert y, or any int erest t herein where the assessed
value of the propert y or int er est t her ein does not
exceed Twent y t housand pesos (P20.000.00) or, in civil
act ions in Metro Manila, where such assessed value
does not exceed Fifty t housand pesos (P50.000.00)
exclusive of int er est , damage s of w ha t ever kind,
a t t o r n e y ' s fees, l it ig a t io n e xp e n s e s an d co st s :
Provided, That in cases of land not declar ed for t axat ion
purposes the value of such propert y shall be
det er mined by t he assessed value of the adjacent
lots." (As amended by R.A. 7691)
"SEC. 34. Delegated jurisdiction in cadastral and
land registration cases. — Met ropo lit an Trial Court s,
Munic ipa l Trial Co ur t s, and Munic ipal C ir cuit Tr ia l
Court s may be assigned by t he Supre me Court to hear
an d d et e r m i ne c a d a s t r a l or land r e g i s t r at io n cases
covering lots where t here is no controversy or opposit ion,
or contested lots where the value of which does not exceed
50
One hundr ed t ho usand pesos (PIOO.OOO.OO), such value

to be ascert ained by t he affidavit of t he claimant or by
agreement of the respect ive claimant s if t here are more
t han one, or from the correspo nding tax declar at ion of
the real propert y. Their decisions in t hese cases shall be
appealable in t he same ma nner as decisions of the Re•
gional Trial Courts." (As amended by R.A. 7691)
"Sec. 35. Special jurisdiction in certain cases. — In
the absence of all the Regional Trial Judges in a province
or city, any Met ropo lit an Trial Judge, Municipal Tria l
Judge, Municipal Circuit Trial Judge may hear and decide
pet it ions for a writ of habeas corpus or applicat ions for
bail in cr iminal cases in the province or city where the
absent Regional Trial Judges sit."
NO TES
1. The jur isdict io nal a mount wit hin the exclusive

or igina l jur is d ict io n of the infer io r court s ha s been
incr eased to PIOO.OOO, or in Met ro Manila, P200.000
exclusive of int er est s, damages, attorney' s fees, lit igat ion
expenses and costs, but wit h the proviso t hat the amount
thereof must be specifically alleged.
2. Unlike the jur isdict ional t est in jo inder of claims
or causes of act io n in the same co mp la int UNDE R t he
Jud ic iar y Act (Sec. 88), the t ot alit y of all t he claims
alleged in all t he cau se s of act ion shall fur nish the
ju r is d ict io na l t es t w he t he r the sam e per t a i n s t o the
same or different part ies and irrespect ive of whet her the
causes of act io n aro s e ou t of the sam e or differ ent
t ransact io ns, but subject to the rule in Sec. 6, Rule 3 if
permissive joinder of part ies is involved.
3. Under the Judiciar y Act (Sec. 88), an inferior court
could issue the wr it s of pr e lim inar y a t t a c h m e n t and
replevin where the principal act ion was wit hin its juris•
dict ion, an d the wr i t of p r e l i m i n a r y pr o h ib it o r y or
51
ma ndat or y injunct ion but only in forcible ent r y cases

(cf. Sec. 3, Rule 70; Art. 539, Civil Code). Under B.P. Blg. 129, provided t hat
jur isd ict io n, in addit io n to the foregoing pro vis io na l
remedies an inferior court can appoint a receiver and it
has jur isdict ion to issue a writ of pr eliminar y injunct ion
in eit her forcible ent ry or unlawful det ainer cases.
4. The inferior courts now have probat e jurisdic•

tion where the gross value of the est at e, whet her t est at e
or int est at e, does not exceed P 100,000, or if in Met ro
Manila, P200.000. However, it has been held under the
former provision where the jur isd ict io na l amo unt was
only up to P20.000, t hat where the propert y was the only
one wherein the decedent had any propriet ar y r ight s, is
conjugal in nat ur e, it is the total value of such conjugal
propert y, and not only the value of t he shar e of t he
decedent t herein, which should furnish t he jur isdict io nal
t est. This is because the set t le me nt proceedings will
necessarily ent ail the disso lut ion and sett lement of the
conjugal part nership and the propert y thereof (Fernandez,
etc., et al. vs. Maravilla, L-18799, Mar. 31, 1964). Thus,
under the pr esent jurisdict ional rule, if the only propert y
of the conjugal part ner ship located outside Metro Manila
has a gross value of P 150,000, while said decedent 's share
t herein which const it ut es his est at e is normally P75.000
in value, the proceedings will have to be inst it ut ed in the
Regional Trial Court since the total value of said propert y
exceeds the probat e jurisdict ion of the inferior court.
5. . The r e g l e m e n t a r y per io d s for a p p e a l s

from judg me nt s or final orders of the different t rial
court s have been made uniform at 15 days from receipt
thereof, except in special pr oceedings, cases wher ein
mult ip le appeals are permitt ed, and habeas corpus
cases. For a detailed discussion on the bases, modes
and periods for appeal from and to different court s,
see Lacsamana, et al. vs. The Hon. Second Special Cases
Division of the
52
Intermediate Appellate Court, et al. (G.R. Nos. 73146-53,

Aug. 26, 1986), set out after Sec. 8, Rule 40 in t his volume.
Note also the changes t hat have super vened since t he n
by r easo n of the 1997 r evis io n of the Rules of Civil
Procedure and relevant decisions of t he Supreme Court,
as they are discussed in the corresponding part s of t his
work.
An a mended out line of the pr esent jur isdic t ion of our

courts in civil cases is pr esent ed in the succeeding pages.
6. A not able init iat ive is the super vening adopt ion
by the S upr eme Court of the "Rule of Procedure for small
claims" on S ept ember 9, 2008 to take effect on October 1,
2008 aft e r the r e q u is it e p u bl i c a t io n . Thi s Rule i s
reproduced in full, toget her wit h the forms and papers
involved in its operat ion and processes (see Appendix EE)
and are spelled out in simple details as to abviat e the need
for clarifying co mme nt s for now. However, should t he
applicat ion and fut ure wor kings of t he Rule P ro duce
s i t u a t i o n s wh ic h wo ul d r e q u i r e a m e n d m e n t s o r
explanat ion, the mat t er will be duly brought to the reader' s
attent ion, wit h a report of the court 's act ion t hereon.
53
JURIS DICTIO N IN CIVIL CASES
I. S UPREM E COURT
A. Original
1. Exclusive
a. P et it io n s for cert io r ar i, pro hibit io n or
ma nda mus against :
(1) Court of Appeals;
(2) Court of Tax Appeals;
(3) S a nd ig a nba ya n;
(4) Commission on Elect ions; and
(5) Commission on Audit.
2. Concurrent
a. Wit h the Court of Appeals
(1) Pet it ions for cert iorar i, prohibit ion or
ma nda mu s against :
(a) Regional Trial Courts;
(b) Civil Service Commission;
(c) C e nt r a l Bo ar d of A s s e s s m e n t
Appeals;
(d) Nat io nal Labor Relat ions Com•
mission; and
(e) Ot her quasi-judicial agencies.
b. Wit h t he Court of Appeals and Regional
Trial Court s
(1) Pet it ions for cert iorar i, prohibit ion or
ma nda mu s against court s of the first
level and ot her bodies; and
(2) Pet it ions for habeas corpus and quo
war r ant o.
c. Wit h Regional Trial Court s
(1) Act ions against ambas sado r s, ot her
public minist ers and consuls.
54
J U R I S D I C T I O N I N CIVI L C AS E S
B. Appellate
1. Pet it ions for review on cert iorari against:
a. Court of Appeals;
b. Court of Tax Appeals;
c. S and ig a nba ya n; and
d. Regional Trial Court s in cases invo lving —
(1) C o n s t i t u t i o n a l i t y or va lid it y of a
t r e at y , i n t e r n a t i o n a l o r execut ive
agreement , law, president ia l decree,
p r o c l a m a t i o n , o r der , i n s t r u c t i o n ,
ordinance, or regulat ion;
(2) Legalit y of a tax, impost, assessment ,
toll or a penalt y in relat ion t heret o;
(3) Jur isdict io n of a lower court; and
(4) Only errors or quest ions of law.
II. COURT OF AP P E AL S
A. Original
1. Exclusive
a. Act ions for annu l me nt of judg ment s of
Regional Trial Courts.
2. . Concurrent
a. Wit h the Supreme Court (see Par. 2, sub-
par, a. on the original jur isdict ion of the
S upr eme Court); and
b. Wit h t he Supreme Court and the Regional
Trial Court s (see Par. 2, sub-par, b., loc.
cit.).
B. Appellate
1. Ordinar y appeals from:
a. Regio nal T r ia l Co urt s , except in cases
exclusively appe a la ble to t he S upr eme
Court, supra; and
55
b. Family Courts.
2. Appeal by petit ion for review from:
a. Civil Service Commission;
b. Cent ral Board of Assessment Appeals;
c. Securit ies and Exchange Commission;
d. Land Regist rat ion Aut horit y;
e. Social Securit y Commission;
f. Office of the President ;
g. Civil Aeronaut ics Board;
h. Bureaus under the Int ellect ual Propert y
Office;
i. Nat ional Electrification Administ rat io n;
j . Energy Regulatory Board;
k. National Telecommunicat ions Commission;
1. D e p ar t me n t of Agr ar ia n Reform
UNDE R
R.A. 6657;
m. Government Service Insurance S yst em;
n. Employees Compensat ion Commission;
o. Agr icult ural Invent ions Board;
p. Insurance Commission;
q. Philippine Atomic Energy Commission;
r. Board of I nvest me nt s;
s. Construction Industry Arbitrat ion Commis•
sion;
t. Office of t he Ombuds man, in administ ra•
tive disciplinary cases; and
u. Any ot her quasi- judicial agency, inst ru•
me nt a lit y, board or commissio n in the
exercise of its quasi- jud ic ia l funct io ns,
such as volunt ary ar bit r at or s.
3. Pet it ions for review from the Regional Trial
Court s in cases appealed t her et o from the
lower court s. 56
J U R I S D I C T I O N I N CI VI L C A S E S
III. REG IONAL TRIAL COURTS

A. Original
1. Exclusive
a. Actions the subject mat t ers whereof are not
capable of pecuniar y est imat io n;
b. Act ions involving t it le to or possession of
real propert y or an int erest t herein, wher e
the assessed value of such propert y exceeds
P 20.000 or, in Met r o Manila, P50.000 ,
exc ep t for cible e nt r y an d u n l a w fu l
det ainer;
c. Act ions in admir alt y and mar it ime jur is•
diction where the demand or claim exceeds
PIOO.OOO or, in Met ro Manila, P200.000;
d. Mat t er s of probat e, t est at e or int est at e,
where the gross value of the est at e exceeds
P100,000 or, in Metro Manila, P200.000;
e. Cases not wit hin the exclusive jur isdict io n
of any court, t ribunal, person or body exer•
cising judicial or quasi-judicial functions;
f. Act ions and special proceedings wit hin the
exclusive original jur isdict ion of the Court
of Agrar ian Relat ions as now provided by
law; and
g. Ot her cases where the demand, exclusive
of i nt e r e st , d a ma g e s , a t t o r ne y' s fees,
lit igat ion expenses and costs, or the value
of t he propert y exceeds P 100,000 or, in
Metro Manila, P200,000.
2. Concurrent
a. Wit h t he Supreme Court:
(1) Act ions affecting ambassador s, other
public minist ers and consuls.
b. Wit h t he S upreme Court and the Court of
Appeals:
57
(1) Petitions for certiorari, prohibit ion and

mandamus as stated in par. 2, sub-par.
b on the original jur isdict io n of the
Supreme Court.
(2) Pet it ions for habeas corpus and quo
warr ant o.
B. Appellate
All cases decided by lower court s in t hei r
respective t erritorial jur isdict ions.
IV. FAMILY COURTS

A. Original
1. Exclusive
a. P et it io n s for gu a r d ia n s h i p , cust ody of
children, habeas corpus in relat ion to the
latter;
b. Pet it ions for adopt ion of children and t he
revocat ion thereof;
c. Co mpla int s for a nnu l m e nt of mar r iage ,
declarat ion of nullit y of marr iage and those
r e lat ing to mar it a l st at u s and pro pert y
r e lat io ns of hu s ba n d and wife or t hose
living toget her under different st at us and
agreement s, and pet it ions for dissolut ion
of conjugal part ner ship of gains;
d. P et it io n s for suppo r t and/ o r ackno w l•
edgment ;
e. . S u m ma r y judic ia l pr o ceeding s
br o ugh t under the provisio ns of
Execut ive Order No. 209 (Family Code of
the Philippines);
f. P et it io n s for d e c l a r a t io n of s t a t u s of
c hi ld r e n a s a ba n d o n e d , d e p e n d e n t o r
neglect ed children, for the vo lunt ar y or
invo lunt ar y co mmit ment of children, and
for t he s u s p e n s i o n , t e r m i n a t i o n , o r
58
J U R I S D I C T I O N I N CI VI L C A S E S
r est o r at io n of par e nt a l aut ho r it y

UNDE R
P.D. 603 , Execut ive Order No. 56, s. 1986,
and ot her relat ed laws;
g. Pet it ions for the const it ut io n of the family
home; and
h. Cases of domest ic violence aga inst women
and children, as defined t herein, but which
do not const it ut e criminal offenses subject
to criminal prosecut ion and penalt ies.
V . M E T R O P O L I T A N , M U N I C I P A L , AN D M UNI •
CI P A L C I R C U I T T RI AL COU RT S
A. Original
1. Exclusive
a. Act ions involving personal propert y valued
at not more t ha n P 100,000 or, in Metro
Manila, =P200,000;
b. Act ions d e ma nd i n g sum s of money not
exceeding P 100,000 or, in Metro Manila,
P200.000, exclusive of int erest, damages,
at t o r ne y' s fees, lit igat ion expenses, and
costs;
c. Act ions in admiralt y and mar it ime jur is•
diction where the demand or claim does not
exceed P 100. 000 or, in Met r o Manila ,
P200,000, exclusive of int erest, damages,
at t or ney' s fees, lit igat ion expenses, and
costs;
d. Probat e proceedings, t est at e or int est at e,
where the gross value of t he est at e does
not exceed P 100,000 or, in Metro Manila,
P200.000 ;
e. . Fo r cible ent r y an d unlaw fu l
d e t a i n e r cases;
59
RUL E 1 REMEDIA L LA W C O M P E N D I U M SEC . 1
f. Actions involving title to or possession of

real pr opert y, or any int er es t t her ein ,
where the assessed value does not exceed
P20.000 or, in Metro Manila, P50.000, ex•
clusive of int erest , damage s, at tor ney' s
fees, lit igat ion expenses, and costs; and
g. Provisional remedies where the principal
action is within t heir jurisdict ion.
2. Delegated
a. . C a d a s t r a l or land r e g i s t r a t i o n case
s covering lots where t here is no
controversy or opposit ion, or contested
lots the value of which does not exceed P
100,000, as may be assigned by the
Supreme Court.
3. Special
a. Pet it ions for habeas corpus in the absence of
all t he Regio nal Tr ial Judge s in t he
province or city.
4. S ummar y Procedure
a. Forcible entry and unlawful det ainer cases
irrespect ive of the amount of damages or
unpaid rent als sought to be recovered; and
b. All other court cases, except probat e pro•
ceedings, where the total claim does not
exceed P 10,000, exclusive of int er est and
costs.
60
RUL E 1 GENE R A L P RO VISION S SE C . 1
D. THE REVIS ED RULES OF COURT*
P u r s u a n t to the p r o v i s io n s of se ct io n 5(5 ) of
Art icle VIII of the Co nst it ut io n, t he S upr e me Court
hereby ado pt s an d p r o mu l g a t e s the following r ule s
c o nc e r n i n g t he p r o t e c t i o n an d e n f o r c e m e n t o f
const it ut iona l r ight s, pleading, pract ice and procedure in
all co urt s , the ad mis s io n to the pr act ice of law, the
I nt e g r a t e d Bar , an d legal a s s i s t a n c e t o the u nder •
privileged:
RULE 1
G ENERAL PRO VIS IO NS
S ec t i o n 1. Title of the Rules. — Th es e Ru le s shall

be kn ow n an d ci ted as the Ru le s of Cou rt. (1)
NO TES
1. The Rules of Court have the force and effect of

law (Shioji vs. Harvey, etc., et al., 43 Phil. 333; Alvero
vs. De la Rosa, etc., et al., 76 Phil. 428; Conlu vs. CA,
et al., 106 Phil. 940). They are not penal st at ut es and
cannot be given ret roact ive effect (Rilloraza vs. Arciaga,
L 23848, Oct. 31, 1967; Bermejo vs. Barrios, L-23614,
Feb. 27, 1970). However, st at ut es regulat ing the proce•
dure of courts may be made applicable to cases pending
at the time of t heir passage and are retroact ive in t hat
sense (see Alday vs. Camilon, G.R. No. 60316, Jan. 31,
1983).
2. "Whe n by law ju r is d ict io n is co nfer r ed on a

court or judicial officer, all auxiliary wr it s, processes and
* T h e a e r e v i s e d R u l e s o f Civ i l P r o c e d u r e wer e a p p r o v e d b y the

S u p r e m e C o u r t i n it s R e s o l u t i o n i n Ba r M a tte r No . 8 0 3 , d at e d April 8 ,
19 97 , to tak e e ffe c t on J u l y 1 , 1 997 .
61
RUL E 1 REMEDIA L LA W C O M P E N D I U M SE C . 2
ot her means necessar y to carry it into effect may be

employed by such court or officer; and if the procedure to
be followed in t he exercise of such jur isdict io n is not
specifically point ed out by law or by t hese rules, any
suitable process or mode of proceeding may be adopted
which appear s conformable to the spirit of said law or
rules" (Sec. 6, Rule 135).
It will be observed t hat t his relevant provision of
Rule 135 refers only to auxiliary writ s, processes and
ot he r neces sar y mea n s to car r y out the jur isd ict io n
specifically conferred by law on the court over the main
suit or proceeding. See the relat ed discussion over t his
ancillary jur isdict ion of courts under Sec. 1, Rule 57.
3. The Code of Civil Procedure (Act No. 190) is one
of the majn sources of the old Rules of Court which took
effect or/July 1, 1940 and, in t urn, of the pr esent revised
Rules. However, certain provisions of the Code of Civil
Procedure which were not incorporat ed in or repealed
by the Rules are still considered in force. These provisions
are:
"7^ "Sec. 42 . Exceptions in Favor of Persons under
Disability. — If a person ent it led to bring the act ion
ment ioned in the preceding sect ions of t his chapt er
(Sec. 40. Action for recovery of title to or possession
of real property or an interest therein) is, at the t ime
the cause of act ion accrues, wit hin t he age of minor•
ity, of unsound mind or in prison, such person may,
after the expirat ion of ten years from t he time the
cause of act ion accrues, br ing such act ion wit hin
t hree years after such disabilit y is removed."
"Sec. 45 . Rights Saved to Certain Persons. — If a
person ent it led to bring any act ion ment io ned in
eit her of the two last preceding sect ions (Sec. 43.
Actions other than for recovery of real property;
Sec. 44. Any other action for relief) is, at the t ime t he
cause of action accrues, wit hin the age of minorit y,
62
of unsound mind, or in prison, such person may bring

such act ion wit hin two years after the disabilit y is
removed unless the r ight of act ion is one of those
named in subdivision four of section fort y-t hree, in
which case it may be brought wit hin one year after
such disabilit y is removed."
"Sec. 47 . As to Absent Persons. — If, whe n a
:
cause of action accrues against a person, he is out

of the P h i l i p p i n e I s la nd s , or ha s a bs co nde d or
co ncealed himself, an d ha s no know n or visible
propert y wit hin t he Islands the per iod limit ed for
the co mmencement of the action shall not begin to
run unt il he comes into the Islands or while he is so
absconded or concealed, or unt il he has known or
visible propert y wit hin the Islands; and if, after the
cause of action accrues, he depart s from the Philip•
pine I slands, or absconds or conceals himself, the
t ime of his a bsence or co ncea lme nt sha ll not be
co mput ed as any par t of the period wit hin which
time the cause of act ion should be brought."
It should be noted t hat Art. 2270(3) of the Civil Code
repeals only the provisions of the Code of Civil Procedure
on prescr ipt ion as far as the lat t er may be inconsist ent
with the former, and Art s. 1106 to 1155 of the Civil Code
do not provide for the above sit uat io ns. Art. 1108 of said
Code provides t hat ext inct ive prescript ion runs against
minors or incapacit at ed persons only if they have par ent s,
guardians or legal r epr esent at ives.
4* Furt her mo r e, it has been held t hat not all the pro•
visions in the Code of Civil Procedure are remedial in
nat ure, such as those pert aining to prescript ion, the re•
quisit es for making a will, and t he succession to the est at e
of the adopt ed child (Primicias vs. Ocampo, etc., et al., 93
Phil. 446). Specifically wit h respect to the above-quoted
provisions on prescript ion, not being procedural in nat ure,
they cannot be deemed to have been impliedly repealed
63
RUL E 1 R E M E D I A L L AW C O M PE N DI U M SE C . 4
just because they were not incorporated in the Rules of

Court. Being su bst ant ive in nat ur e , and not having
been eliminat ed by subst ant ive law as above explained,
these provisions are consequent ly still in force.
4. In the int erest of just and expedit ious proceed•
ings, the Supreme Court may suspend the applicat ion of
the Rules of Court and except a case from their operat ion
because the Rules were precisely adopted with the pri•
mar y objective of enha nc ing fair t rial and expedit ious
just ice (Republic vs. CA, et al, L-3130304, May 31, 1978).
Sec. 2. In what courts applicable. — Thes e Ru les

shall ap p ly in all the cou rt s, excep t as ot h e rw i s e
p rovi d ed by the S u p re me Court, (n)
NOTES
1. The 1987 Const itut ion provides in Art. VIII thereof

t hat :
"Sec. 5 . The S u p r e m e Co urt sha l l hav e the
following powers:
(5) Pro mulgat e rules concerning the protect ion

and enforcement of const it ut iona l r ight s, pleading,
pract ice, and procedure in all courts, t he admissio n
to the pract ice of law, the I nt egrat ed Bar, and legal
assist ance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for
the speedy disposit ion of cases, shall be uniform for
all courts of the same grade, and shall not diminish,
incr ea se, or modify s u bs t a nt i v e r ig ht s . Rules of
procedure of special courts and quasi- judicial bodies
shall r e ma i n effect ive unless d isapproved by t he
Supreme Court."
64
RUL E 1 GENE R A L PRO VI SION S SE C . 6
2. P.D. 946 provided that the "Rules of Court shall

not be applicable to agr ar ian cases, even in a suppletory
charact er" and each Court of Agr ar ian Relat io ns t he n
had the aut hor it y to adopt any appropriat e procedure,
except t hat in cr im ina l and e xpr o pr iat io n cases, t he
Rules of Court shall apply (Sec. 16). Under B.P. Blg. 129,
said agr ar ia n court s were int egrat ed into the Regional
Trial Court s as br anches thereof, and "the lat t er shall
have exclusive original jur isdict io n over said cases and
proceedings but t hey shall cont inue to apply t he special
rules of procedures under the pr esent laws" (Sec. 24).
R.A. 6657 subsequent ly provided for the designat ion
of at least one branch of the Regional Trial Court wit hin
each province to act as a Special Agrar ian Court. The
Special Agrar ian Courts shall have original and exclusive
jur isdict io n over all pet it io ns for the de t er minat io n of
just co mpensat io n to landowner s and the prosecut ion of
all cr iminal offenses under said Act (Secs. 56 and 57).
On t he ot her hand, the Depart ment of Agr ar ian Reform
is vest ed wit h pr imar y jur isd ict io n and quasi- judicia l
powers to det er mine and adjudicat e all ot her agr ar ia n
reform mat t er s. It shall not be bound by the technical
rules of pro cedur e and evidence bu t may emp lo y all
reasonable means to ascert ain the facts in accordance
with just ice, equit y and t he mer it s of the case (Sec. 50).
Sec. 3 . Cases governed. — T h e s e R u l e s s h a l l

gover n the p ro c e d u r e t o b e ob se rv e d i n a ct i o n s ,
civil or cri mi n a l, and sp eci al p roc ee d i n g s .
(a) A civi l act i o n is on e by wh i c h a party sue s
a n o t h e r for the e n f o r c e m e n t or p r o t e c t i o n of a
ri ght , or the p r e v e n t i o n or re d re s s of a wron g ,
(la, R2)
A civil act i o n ma y ei t h e r be ord i n ar y or special.
Both are go ve rn e d by the ru les for ord i n a ry civi l
act i on s, su bj ect to the speci fi c ru les p re sc ri b ed for
a sp eci al civil act i on , (n)
65
RUL E 1 R E M E D I A L L AW COMPENDIU M SEC . S
(b) A cri min al acti on is on e by whi c h the S tate

p r o s e c u t e s a p e r s o n for a n ac t o r o m i s s i o n
p u n i sh ab l e by law. (n)
(c) A sp ecial p ro ce ed i n g is a remed y by wh i c h a
p art y s e e k s to e s t a b l i s h a s t a t u s , a ri gh t , or a
p arti cu lar fact. (2a, R2)
NOTES
1. In the P hilippines, t here is no difference bet ween

a "suit" and an "action" as our courts are courts of law and
equit y (see Lopez vs. Filipinos Cia. de Seguros, L-19613,
April 30, 1966). Likewise, in Amer ican law, the t er ms
"act io n" an d "suit " ar e now near ly , i f not ent ir e l y ,
synonymous (Elmos vs. James, Tex. Civ. App., 282 S.W.
835; Coleman vs. Los Angeles County, 180 Cal. 714, 182
P. 440), or if t here be a dist inct ion, it is t hat the t er m
"action" is generally confined to proceedings in a court
of law, while "suit" is equally applied to prosecut ions at
law or in equit y (Black's Law Dictionary, 6th Ed., p. 1434).
2 . The Supreme Court has inherent jur isdict ion t hat

it can always exercise in set t ings at t ended by unu sua l
cir cumst ances to pr event manifest injust ice t hat could
result to bare technical adherence to the law and impre•
cise jur ispr udence (Co vs. PNB, G.R. No. 51767, June 29,
1982).
3 . In an ordinar y action, t here must be real part ies

in int erest assert ing adverse claims and pr esent ing a ripe
issue (Tolentino vs. Board of Accountancy, 90 Phil. 88).
Sec . 4. In what cases not applicable. — Th es e Rule s

shall not app ly to elect i o n cases , land re gi st rat i on ,
c a d a s t r a l , n a t u r a l i z a t i o n an d i n s o l v e n c y p ro •
c e e d i n g s , and ot h er case s not h erei n p rovi d e d for,
exc ep t by an alog y or in a su p p l et o r y ch a ra ct e r and
w h e n e v e r p ract i cab l e and c on v e n i en t . (R143a)
66
NOTE
1. See Note 3 under Sec. 5, Rule 2. C' r'\
Sec . 5. Commencement of action. — A civil act i o n

i s c o m m e n c e d by the filing of the ori gi n al co mp l ai n t
in court. I f an ad d i t i on a l d e f en d an t i s i mp l ead e d in
a late r p l e a d i n g , the act i o n i s c o m m e n c e d wi t h
regard to hi m on the dat e of the filin g of suc h later
p lead i n g, i rre sp e ct i v e of w h e t h e r the mot i o n for its
ad mi ssi on ^ i f n e ce s sa ry , i s d en i e d by the court. (6a)
NOTES
1. This provision assu mes significance especially

where prescr ipt io n is raised as a defense against the
claim of the plaint iff in the complaint . Thus, as long as
the complaint which commences t he action is filed wit hin
the prescr ipt ive period, the claim alleged t herein is not
barred even if summo ns was served on the defendant after
the prescr ipt ive period (Sotelo vs. Dizon, et al., 57 Phil.
573; Cabrera, et al. vs. Tiano, L-17299, July 31, 1963).
2. Such action may be commenced by filing the
complaint by registered mail. Hence, if t he complaint was
duly sent to the proper court by regist ered mail wit hin
t he pr escr ipt iv e per io d an d i n acco r danc e wit h the
r equir eme nt s of Sec. 3, Rule 13, the fact t hat said com•
plaint, as mailed, was actually received by the clerk of
said court after t he lapse of t he prescr ipt ive period is
immat er ial as the dat e of mailing is considered the date
of the filing of said complaint . However, if t he requisit e
docket fee was actually paid, eit her personally or also by
mail, subsequent to the mailing of said complaint , the
dat e of such payment or the mailing of said a mo un t
therefor shall be considered as the dat e of the filing of
the complaint (Ago Timber Corp. vs. Ruiz, et al., L-23887,
Dec. 26, 1967). Where t here was an u nder as s e s s me n t of
RUL E 1 R E M E D I A L L AW COM PENDIU M SEC . 5
t he docket fee to be paid due to an init ia lly ho nest

difference of opinion as to the nat ure of the action, the
plaint iff was per mit t ed to subsequent ly complet e the
payment by paying the difference (Magaspi vs. Ramolete, L-
34840, July 20, 1982).
3. Ordinar ily, the rule was t hat a case is deemed
filed only upon the payment of the docket fee. The Court
acquires jur isdict ion over the case only upon full pa yment
of such prescribed docket fee. All complaint s, pet it ions,
answers and similar pleadings must specify the amount
of damage s being prayed for bot h in the body of t he
pleading and in t he prayer t herein, and said damages
shall be considered in the assessment of the filing fees;
ot herwise, such pleading shall not be accepted for filing
or shall be expunged from the record. Any defect in the
original pleading result ing in under payment of the docket
fee cannot be cured by amendment , such as by the reduc•
tion of the claim as, for all legal purposes, t here is no
original co mp laint over which t he court has acquired
jur isdict ion (Manchester Development Corporation, et al.
vs. CA, et al., G.R. No. 75919, May 1, 1987).
Ho wever , the a fo r e s t at e d r ulin g in Manchester
Development Corporation, et al. vs. CA, et al. has been
modified as follows: (1) when the filing of the init iatory
pleading is not accompanied by payme nt of the docket
fee, the court may allow payme n t of the fee wit hin a
reasonable time but not beyond the applicable prescript ive
or r eg le me nt ar y period; (2) the same rule applies to
permissive count erclaims, t hir d -part y claims and similar
pleadings; and (3) when t he t rial court acquires jur isdic•
t ion over a cla i m by the filing of the a p p r o p r i a t e
pleading and pa yme nt of the prescribed filing fee but,
subsequent ly, the judgment awards a claim not specified
in the pleadings, or if specified the same has been left
for det er minat io n by the court, the addit ional filing fee
therefor shall const it ut e a lien on the judgment which shall
be enforced and the addit ional fee assessed and collected
68
by the clerk of court (Sun Insurance Office, Ltd., et al.

vs. Asuncion, et al., G.R. Nos. 79937-38, Feb. 13, 1989).
4. It is true t hat Manchester laid down the rule t hat all
complaint s should specify the amount of the damages
prayed for not only in the body of the complaint but also
in the pr ayer . That rule, however, has been relaxed.
Thus, while the body of the complaint in this case is silent
as to the exact amount of damages, the prayer did specify
the amo u nt . These a mo u nt s were definite enough and
enabled t he clerk of court to comput e the docket fees
payable. Fur t her mo r e, the a mo unt s claimed need not be
init ially st at ed wit h mat hemat ical precision. Section 5(a),
Rule 141 allows an appraisal "more or less," t hat is, a final
det er minat io n is st ill to be made and the fees ult imat ely
found to be payable will eit her be addit ionally paid by or
refunded to the part y concerned, as the case may be. The
part y is, t herefore, allowed to make an init ial pa yme nt of
the filing fees corr espo nding to the est imat ed amount
of the claim subject to adjust ment as to what may later
be proved (Ng Soon vs. Alday, et al., G.R. No. 85879,
Sept. 29, 1989).
5. . Where the act ion involves real property (such

as an accion publiciana) and relat ed claims for damages,
the legal fees shal l be assessed on both the value of
the propert y and t he total amo un t of t he damages
sought. Where the fees prescribed for an action
involving real propert y have been paid but the a mo unt s
for the relat ed damages being de mand ed t her e in are
unspecified, the act io n ma y not b e d i s m i s s e d . The
Court acqu ir e d jur isdict ion over the action involving
real propert y upon t he filing of the c o mp la i n t and
the p a ym e n t of the prescribed fee therefor. It is not
divested of t hat aut horit y by the fact t hat it may not have
acquired jur isdict ion over the accompanying claims for
damages because of lack of specification thereof. Said
claims for damages as to which no amo unt s are st at ed
may simply be expunged or the
69
RUL E 1 R E M E D I A L L AW COMPENDIU M SE C . 6
court, on motion, may allow a reasonable t ime for the

ame nd ment of the complaint so as to allege the precise
amount of the damages and accept payment of the fees
t herefor, provided said claims for damage s have not
become t ime- barred (Tacay, et al. vs. Regional Trial Court
ofTagum, etc., et al, G.R. Nos. 88075-77, Dec. 20, 1989).
6. The amount of docket fees to be paid should be
co mput ed on the basis of the a mo unt of the da mag es
st ated in the complaint. Where, subsequent ly, the judg•
ment awards a claim not specified in the pleading or,
if specified, the same has been left for the det er minat io n
of the court, the add it io na l filing fee t her e fo r shall
co nst it ut e a lien on the ju d g me nt . Such "awar d s of
c la i m s not specified in the p le a d i ng " refer only to
damages arising after the filing of the complaint or similar
p le ad ing . Accor ding ly, the a mo u n t of any claim for
damages ar ising on or before the filing of the complaint
or an y p lead in g sho uld be specified. The except io n
cont emplat ed as to claims not specified or to claims which
alt hough specified are left to the det er mi nat io n of the
court is limit ed only to damages t hat may ar ise aft er
the filing of the co mplaint or similar pleading since it
will not be possible for the claimant to specify or speculat e
on t he amo un t t her eo f (Ayala Corporation, et al vs.
Madayag, et al, G.R. No. 88421, Jan. 30, 1990).
7. It is well settled in our jur isdict io n t hat , unless

o t he r w i s e pr o vid e d by law or r e q u i r e d by pu bli c
int erest , as in quo war r ant o act ions (see Note 3 under
Sec. 11, Rule 66), before bringing an action in or resort ing
to the court s of just ice, all remedies of admin ist r at ive
char act er affecting or det er minat ive of the cont roversy
at t hat level should first be exhaust ed by the aggrieved
part y (Pestanas vs. Dyogi, L-25786, Feb. 27, 1978; Miguel
vs. Vda. de Reyes, 93 Phil. 542; Coloso vs. Board, L-5750,
April 30, 1950). It is likewise t rue, however, t hat the
doctrine of exhaust ion of ad minist r at ive remedies is not a
hard and fast rule.
70
This Title does not apply and has been disregarded

when: (1) the issue is purely a legal one, and not hing of
an administ r at ive nat ure is to be and can be done (Dauan
vs. Secretary of Agriculture and Natural Resources, et al., L-
19547, Jan. 31, 1967; Aguilar vs. Valencia, L-30396, July
30, 1971; Commissioner of Immigration vs. Vamenta, L-34030,
May 31, 1972; Del Mar vs. Phil. Veterans Adm., L-27299, June
27, 1973; Bagatsing vs. Ramirez, L-41631, Dec. 17, 1976); (2)
insist ence on its observance would r e su l t i n nu l l i f ic at io
n of the c la im be in g a s s e r t e d (Gravador vs. Mamigo, L-24989,
July 21, 1967); (3) the co nt ro vert ed act is pa t ent l y illegal or
was per for med wit hout jur isdict ion or in excess of
jurisdict ion (Industrial Power Sales, Inc. vs. Sinsuat, L-
29171, April 15, 1988);
(4) the respondent is a depar t me nt secretary, whose act s
as an alt e r ego of the P r e s id e n t bea r the implied or
assumed approval of the latter, unless actually disapproved
by him (Demaisip vs. CA, et al, 106 Phil. 237); (5) t here
are c ir c u mst a nc e s ind icat ing the urgenc y of jud ic ia l
int er vent io n (Gonzales vs. Hechanova, L-21897, Oct. 22,
1963; Abaya vs. Villegas, L-25641, Dec. 17, 1966; Mitra
vs. Subido, L-21691, Sept. 15, 1967); (6) the rule does not
provide a plain, speedy and adequat e remedy (Cipriano
vs. Marcelino, L-27793, Feb. 28, 1972); (7) t her e is a
violation of due process (Quisumbing vs. Gumban, G.R.
No. 85156, Feb. 5, 1991; Salinas vs. NLRC, et al,
G.R. No. 114671, Nov. 24, 1999); (8) t here is estoppel on
the part of t he ad minist r at ive agency concerned (Vda. de
Tan vs. Veterans Backpay Commission, 105 Phil 377);
(9) t here is irreparable injury (De Lara vs. Cloribel, 121
Phil. 1062); (10) to require exhaust ion of administ r at ive
remedies would be unreaso nable (Cipriano vs. Marcelino,
et al, 150 Phil. 336); (11) the subject mat t er is a privat e
land in land case proceedings (Soto vs. Jareno, L-38962,
Sept. 15, 1986); an d (12 ) the issu e of e x h a u s t i o n
o f a d m i n i s t r a t i v e p r o c e e d i n g s ha s bee n r e n d e r e d
moot (Carale, etc., et al. vs. Abarintos, etc., et al.,
G.R. No. 120704, Mar. 3, 1997).
71
Sec. 6. Construction. — Th e s e Ru l e s sh al l be
l i b e ra l l y c o n s t r u e d i n ord e r t o p r o m o t e t h e i r
obj ecti ve of secu ri n g a just, sp eed y and i n e xp en si v e
d i sp osi t i on of every action and p roce ed i n g. (2a)
NOTES
1. This section is a recognit ion of the fact that the

rules of procedure are mere tools designed to facilitate the
at t ainment of just ice. Thus, the liberal const ruct ion of
t hese Rules has been allowed in the following cases:
(1) where a rigid applicat io n will r esult in manifest
failure or miscarriage of just ice; (2) where the int erest of
subst ant ial justice will be served; (3) where the resolut ion
of the motion is addressed solely to the sound and judicious
discret ion of the court; and (4) where the injustice to the
adverse part y is not co mme nsur at e with the degree of his
t ho ught les s nes s in not complying wit h the prescr ibed
procedure (Tan us. CA, et al., G.R. No. 130314, Sept. 22,
1998).
2. In fact, in line with the spirit and purpose of this

section, even t he suspension of the rules may be just ified
in the int erest of fair play. As- early as the case of Vda.
de Ordonez us. Raymundo (63 Phil. 275), it was held t hat
t he court ha s the power to suspen d the r ules, or to
except a part icular case from t heir operat ion, whenever
the ends of just ice so require.
Jur ispr ude nce has laid down the range of r easo ns
which may provide just ificat ion for a court to r est r ict
adherence to procedure, enumer at ing grounds for giving
due course to an ot herwise object ionable appeal by a
suspension of the enforcement of procedural rules, viz.:
(1) in m a t t e r s of life, l i be r t y , ho no r or p r o p e r t y ;
(2) co u nse l' s neg l ig e nc e w it ho u t an y p a r t i c i p a t o r y
negligence on the part of the client; (3) the exist ence of
special or compelling circumst ances; (4) the evident mer it s
of the case; (5) a cause not ent irely at t r ibut able to the
72
fault or negligence of the part y favored by the suspension

of the rules; (€) the lack of any showing t hat the review
sought is merely frivolous and dilat or y; and (7) the
ot her part y will not be unjust ly pr eju diced t her e b y
(Baylon vs. Fact-finding Intelligence Bureau, etc., et al.,
G.R. No. No. 150870, Dec. 11, 2002).
3. . While the Rules are liber ally co nst r ued,

the provisions on reglementary periods are strictly applied
as t hey are "deemed indispensab le to the prevention of
needless delays and necessary to the orderly and speedy
discharge of judicial business" (Alvero vs. De la Rosa, et
al., 76 Phil. 428; Valdez vs. Ocumen, et al, 106 Phil 929;
Mangali, et al. vs. CA, et al, L-47296, Aug. 21, 1980; cf.
Legaspi-Santos vs. CA, et al, G.R. No. 60577, Oct. 11, 1983) and
strict compliance t herewit h is mandat ory and imper at ive
(FJR Garments Industries vs. CA, et al, L-49320, June
29, 1984). The same is t rue with respect to the rules
on the ma nner and periods for perfect ing appeals
(Gutierrez vs. CA, et al, L-25972, Nov. 26, 1968), and the
r equir eme nt s as to what should appear on the face of
a record on appeal (Workmen's Insurance Co., Inc. vs.
Augusto, et al, L-31060, July 29, 1971), alt hough these rules
have so met imes been relaxed on equit able
considerat ions (see Pimentel, et al. vs. CA, et al, L-39684, June
27, 1975; Bagalamon, et al. vs. CA, et al, L-43043, Mar.
31, 1977).
All t hing s co nsider ed, the S upr eme Court called
attent ion to the fact t hat "(v)ules of procedure exist for a
purpose, and to disregard such rules in the guise of liberal
construction would be to defeat such purpose. Procedural
rules are not to be disclaimed as mere technicalit ies. They
may not be ignored to suit the convenience of a part y.
Adject ive law e n s u r e s the effect ive e nfo r c e me nt of
s u b s t a nt i v e rights t hr o u g h the o r derl y and speedy
ad m i n is t r at io n of just ice. Rules are not int ended to
hamper litigants or complicate lit igat ion. But they help
provide for a vital syst em of justice where suitors may be
73
heard in the correct form and manner, at the prescribed

time in a peaceful though adversar ia l confrontation before
a judge whose aut horit y lit igants acknowledge. Public
order and our syst em of just ice are well ser ved by a
co nsc ie nt io us o bser va nce of the r ules of pr o c ed ur e ,
p a r t ic u l a r l y by g o ve r n me n t officials an d ag e nc ie s "
(Kowloon House/Willy Ng vs. CA, et al., G.R. No. 140024,
June 18, 2003, quoted in United Pulp and Paper Co.,
Inc. vs. United Pulp and Paper Chapter, etc., G.R.
No. 141117, Mar. 24, 2004).
74
CIVIL ACT IO NS
ORDINARY CIVIL ACTIONS
RULE 2
CAUSE OF ACTION
S e c t i o n 1. Ordinary civil actions, basis of. —

Every o rd i n a r y ci vi l act i o n mu s t be b ase d on a
cau se of acti on , (n)
Sec. 2. Cause of action, defined. — A c a u s e of

act i o n i s the ac t o r o m i s s i o n b y w h i c h a p art y
vi olat es a ri gh t of an ot h er , (n)
NO TES
1. See Note 2 of t he Preliminar y Considerat ions and

Notes 2 and 5 under Sec. 47, Rule 39.
2. A cause of action is the delict or wrongful act or
omission commit t ed by the defendant in violation of the
primar y right of the plaintiff. A single act or omission
can be violative of various rights at the same time but
where there is only one delict or wrong, there is but a
single cause of action regardless of the number of r ight s
violated belonging to one person. Nevertheless, if only
one injury resulted from several wrongful acts, only one
cause of action arises. The singleness of a cause of act ion
lies in the singleness of the delict or wrong violat ing the
rights of one person (Joseph vs. Bautista, et al., L-41423,
Feb. 23, 1989).
Sec. 3. One suit for a single cause of action. — A

party ma y not i n st i t u t e more tha n on e suit for a
single cau s e of act i on. (3a)
76
RUL E 2 R E M E D I A L L AW COM PENDIU M SE C . 4
Sec. 4. Splitting a single cause of action; effect of.

— If tw o or more su it s are i n st it u t ed on the b asi s of
the sam e cau s e of act i o n , the fi li n g of on e or a
j u d g m en t upo n the merit s in any one i s avai lab le
as a grou nd for the d i smi ssa l of the ot h ers. (4a)
NOTES
1. Splitting a cause of action is the act of dividing a

single cause of action, claim or demand into two or more
par t s , and bringing suit for one of such parts only,
int ending to reserve the rest for anot her separate action.
The purposes of the rule are to avoid har a s s me n t and
vexat ion to the defendant and to obviate mult iplicit y of
suits.
•'. 2. Where a single cause of act ion has been split,
the remedy of the defendant is to move to dismiss under
Rule 16 on the ground t hat t her e i s a no t he r act ion
pending bet ween the same part ies for the same cause,
or litis pendentia (Sec. lfej); or, if t he first action has
alr eady been finally t er minat ed, on t he ground of res
judicata (Sec. IffJ).
3. Thus, where the first ,act ion was for recovery of

land, anot her action for the value of plaint iff s share in
the produce of said land is barred, as a single cause of
action was split into two suits (Jalandoni, et al. vs. Martir-
Guanzon, et al., 102 Phil. 859; cf. Pascua vs. Sideco, 24
Phil. 26). The same doctrine applies where, in the action
to recover the land, the plaint iff sought to recover the
fruit s alr eady appr o pr iat ed by the defe ndant but not
the future fruits which may be realized thereon unt il the
possession of the land, was restored to him. He could
have done so by supple ment al complaint in said action,
failing which he cannot inst it ut e anot her action for t hat
purpose in violat ion of the rule of res judicata (Bayang
vs. CA, et al., G.R. No. 53564, Feb. 27, 1987).
76
RUL E 2 CAUS E O F AC T I O N SE C . 4
4. Where a contract is to be performed periodically,

as by inst a ll me nt s, each failure to pay an inst allment
const it ut es a cause of action and can be the subject of a
separat e suit as the inst allment falls due, or it can be
included in the pending suit by suppleme nt al pleading.
However, if at the time of the bringing of suit, several
installments are already due, all must be included as
integrating a single cause of action, otherwise those not
included will be barred (Larena vs. Villanueva, 53 Phil.
923).
5. Wit ha l, even if t he co nt r act is divisible in its

performance and t he fut ure periodic deliver ies are not
yet due, but the obligor has already manifest ed his refusal
to comply wit h his future periodic obligat ions, "the con•
tract is entire and the breach total," hence t here can only
be one action for damages (Blossom & Co. vs. Manila Gas
Corporation, 55 Phil. 226).
6. Non-payment of a mort gage loan cannot be split

into two act ions, one for payme nt of the debt and the
other for foreclosure of the mort gage, as t here is only
one cause of action (Quiogue, et al. vs. Bautista, et al., L-
13159, Feb. 28, 1962); but an action for collection of a mortgage
loan does not bar anot her for rescission of the mortgage if
such rescission is based on the non-compliance by the
mo rt gagor wit h cert ain ot her condit ions of the mort gage
co nt ract (Enriquez, et al. vs. Ramos, et al., L-16797, Feb.
27, 1963).
7. Where the plaintiff filed the first action for forcible
entry in the belief and on the allegat ion t hat the fence
const ruct ed by t he defendant int r uded upon only one
lot, but, after the relocat ion survey, he discovered t hat
the other portion of the same fence extended to anot her
lot and as a consequence of which he filed anot her action
for forcible entry upon t hat lat t er lot, the Supreme Court,
while holding that technically t here was a splitt ing of a
77
single cause of action since the alleged forcible entry

constituted only one act, neverth eless sustained the
order of the lower court denying defendant's motion to
dismiss the complaint on the ground of litis pendentia, it
appearing that the first action had not yet been tried at
the time the second action was filed in the same court,
hence the two cases could be tried together as one, or the
second complaint could be treated as an amendment of
the first (Tarnate us. Garcia, et al., L-26266, Dec. 29,
1972).
Sec. 5. Joinder of causes of action. — A p art y ma y

i n on e p l e a d i n g a s s e r t , i n the a l t e r n a t i v e o r
ot h e rw i se , a s man y cau se s o f act i o n a s h e ma y hav e
agai n s t an op p os i n g party, su bj ect to the fo l lo wi n g
con d i t i on s :
(a) The part y j oi n i n g the cau se s of act i o n shall
comp ly wit h the ru les on j oi n d e r of part i es;
(b) The j oi n d e r shall not i n clu d e sp eci al ci vi l
act i on s gove rn e d b y sp eci a l ru les;
(c) Wh ere the cau se s of act i o n are b e t w e e n the
sam e p a rt i e s but p e rt a i n t o d i f f e re n t v e n u e s o r
j u r i s d i c t i o n s , the j o i n d e r ma y b e al l o w e d i n the
Regi on a l Trial Cou rt p rovi d e d on e of the c au se s of
act i o n falls wi t h i n the j u r i s d i c t i o n o f sai d Cou rt
and the ven u e lies t h e rei n ; and - 1
(d) W h e r e the c l a i m s i n al l the c a u s e s o f
act i o n are p ri n ci p a l l y for re co ve r y o f mon e y the
a g g r e g a t e ^ a m o u n t c l a i m e d sh a l l b e the t es t o f
j u ri sd i ct i on . (5a)
NOTES
1. The joinder of causes of action in one complaint

promotes the policy on avoiding multiplicity of suits.
The rule in Sec. 5, however, is purely permissive and the
78
plaint iff can always file separ at e actions for each cause
of action (Baldovir vs. Sarte, 36 Phil. 550).
2. Par. (a) of t his section requires t hat the joinder

of causes of action shall comply with the rule on joinder
of par t ies. T hus, in relat io n to Sec. 6 of Rule 3, it is
necessar y t hat t he right of relief from said causes of
action should arise out of the same t ransact ion or series
of t ransact io ns, and a quest ion of law and fact common
to all the plaint iffs or defendant s may arise in the action.
3. Under Par. (b), only causes of action in ordinar y

civil act ions may be joined, obviously because they are
subject to the same rules. Necessar ily, t herefore, special
civil act ions or actions governed by special rules should
not be joined wit h or dinar y civil act ions to avoid con•
fusion in the conduct of the proceedings as well as in the
det er minat io n of the presence of the requisit e element s
of each part icular cause of act ion. In fact, in the special civil
action of declar at ory relief (Rule 63), the concept of a
cause of action in ordinar y civil actions does not apply.
Note should be t aken, however, of Sec. 4 of Rule 1
which provides t hat t hese Rules shall not apply, inter alia,
to election cases in t he regu lar courts (see Sec. 2[2], Art.
IXC, 1987 Constitution). Thus, unless the rules of t he
elect oral t r ibu na l or body provide ot herwise, the
prohibit ion against joining in one action t herein a cause
of action for quo war r ant o by reason of the ineligibilit y
of t he de fe nd a n t c a nd id a t e (which is a special civil
action) and one for an elect ion prot est due to electoral
irregular it ies, should not apply and both causes of action
may be adjudicat ed in a single case, especially in view of
the need for speedy det er minat io n of the title to a public
office.
4. Pars, (c) and (d) det ermine which court will have
jur isdict io n over the act ion wherein several causes of
action have been joined. Unlike the former Rule, the
79
aggregate or totalit y rule applies only where t he claims

are principally for sums of money, and not where they
are also of the same nat ure and character; and said claims
for money must arise out of the same t r ans a ct io n or
ser ies of t r ansact io ns wherein a quest ion of law or fact
common to the part ies may ar ise in the action. Also, the
condition in the former Rule t hat permissive joinder of
causes of action shall be "(s)ubject to the rules regarding
jur isdict ion (and) venue" has been modified and clarified
in the present formulat ion of par. (c).
5. . In a co mp la i n t filed in the S e c u r i t i e s
an d Exchange Commission by a stockholder of a
corporation, one of the causes of action t herein sought the
annu l me nt of a dacion en pago agreement , whereby said
corporat ion ceded all its asset s to the mortgagee bank in
set t lement of its account, and to recover said propert y from
the third- par t y p u r c ha s e r t o who m the mo r t g a g e e
ban k ha d subsequent ly sold the propert y and who was
impleaded as a co-defendant. It was held t hat such
cause of action could not be joined in said complaint
since jur isdict io n t hereover lies in t he regular court s.
While, ordinar ily, the pur chaser corporat ion should be
included as a part y defendant since it has an int erest in
the subject mat t er, i n t hi s case said p u r c h a s e r ha s
no i nt r a - c o r p o r a t e relat ionship wit h the complainant ,
hence, the Commission has no jur isdict io n over it under
P.D. 902-A. The rule on permissive joinder of causes of
action is subject to the rules regarding jur isdict ion,
venue and joinder of part ies (Union Glass & Container
Corp., et al. vs. SEC, et al.,
G.R. No. 64013, Nov. 28, 1983), as clarified in t his revised
Rule.
6. This section presupposes t hat the different causes

of act ion which are joined accrue in favor of the same
plaintiff/s and against the same defendant/ s and t hat no
misjoinder of part ies is involved. The jur isdict ional issue,
i.e., whet her the action shall be filed in the inferior court
80
or in the Regional Trial Court, is det ermined by paragraphs

(c) and (d).
7. . Formerly, the rule was t hat alt hough the
causes of act io n ar e for sum s of mo ney owing to
differ ent persons who are me mber s of a labor union, but
the same are joined in a single complaint filed by said
union as a r e pr e s e nt at iv e par t y p u r s u a nt to Sec. 3 of Rule
3, jurisdict ion shall be det er mined by the aggregate amount
of the demands (Liberty Mfg. Workers Union vs. CFI of
Bulacan, et al., L-35252, Nov. 29, 1972). Cases of t his
nat ure are now governed by the Labor Code.
8. Before the imp le me nt at io n of B.P. Blg. 129, it

was held t hat where the plaint iff is uncert ain as against
whom to proceed for recovery on the loss of goods shipped
to him and sues on a joinder of causes of action against
the shipper or ar r ast r e operator as alt ernat ive defendant s,
the former on an admiralt y action and the lat t er on an
ordinary claim for a sum of money, the joinder of causes
of act io n i s pro pe r since t he y aro se from the sam e
t r a n s a c t i o n . H o w e ve r , sinc e one caus e o f act io n
(admiralt y) was wit hin the jurisdict ion of the Court of First
Inst ance, even if the amount involved in the claim for a
sum of money was wit hin the jur isdict ion of the inferior
court, the act ion must be filed and tried in the Court of
F ir s t I ns t a n c e , p u r s u a n t to Rule 2 , Sec. 5 , second
par agr ap h (Insurance Company of North America vs.
Warner, Barnes & Co., Ltd., et al., L-24108, Oct. 31, 1967;
Insurance Company of North America vs. U.S. Lines Co., L-
21839, April 30, 1968). The subsequent dismissal of
the a d m i r a lt y cas e a g a i n s t one o f the a l t e r n a t i v e
defendant s did not oust said court of jur isdict ion over the
damage suit even i f t he claim was less t ha n the t he n
jur isd ict io na l a mo u n t (Insurance Company of North
America vs. U.S. Lines Co., supra).
However, since under Sec. 19 of B.P. Blg. 129 the
inferior court s were grant ed jur isdict ion over admiralt y
81
actions, as well as ordinary civil actions, where t he claim

does not exceed P20,000, the sit uat ions in the foregoing
case s wer e e l i m i n a t e d be ca u s e the j u r i s d i c t i o n a l
amo unt in both causes of act ion being t he same, said
amount is det er minat ive of whet her t hat action should be
filed in the inferior courts or in the Regional Trial Court.
The amend me nt of Sec. 19, B.P. Blg. 129 by Sec. 1
of R.A. 7691 , as earlier indicat ed, does not affect t his
rul e o n a d m i r a l t y an d m a r i t i m e case s sinc e t hat
a m e n d m e n t mer e l y c o ns i s t e d o f i n c r e a s i n g the
jur isdict ional amo unt for said cases, and also for ordinar y
civil act ions for a su m of money, to claims exceeding
PIOO.OOO, or in Met r o Manila , exceed ing P 200. 000 ,
exclusive of int erest, damages of what ever kind, attorney' s
fees, lit igat ion expenses, and costs.
Sec. 6. Misjoinder of causes of action. — Mi sjoind er

of cau se s of act i o n i s no t a grou n d for d i s m i s s a l of
a n a c t i o n . A m i s j o i n e d c a u s e o f a ct i o n may , o n
mot i o n of a party or on the in i t i at i ve of the court,
be severe d and p ro c e e d e d wit h sep arat ely, (n)
NOTES
1. In case of misjo inder of causes of act ion, the cause

of act ion erroneously joined need only be separat ed and
dismissed, wit hout affecting the act ion wit h regard to the
other cause or causes o£ action. Misjoinder of causes of
act ion, like misjo inder of part ies, is not a ground for
dismissal of an act ion. The part y misjoined shall only be
dropped by order of the court sua sponte or on motion,
an d any claim a ga ins t a part y may be sever e d an d
proceeded wit h separat ely (Sec. 11, Rule 3).
2. Unlike the case of non-joinder of part ies which

is specifically provided for and regulat ed by the Rules
(Secs. 9 to 11, Rule 3), t here is no provision on or sanct io n
against non- joinder of separ at e causes of action since a
82
RUL E 2 P AR T I E S T O CI VI L A C T I O N S SE C . 6
plaintiff needs only a single cause of action to maintain

an action (Sec. 1, Rule 2). Joinder of causes of action
which accrued in favor of a party is only a permissive
procedure, hence the party may i n sti t u t e as many
actions as he has causes of action, without prejudice to
the provi sions of Sec. 1 of Rule 31 on joint trial or
consolidation of actions.
83
RULE 3
PARTIES TO CIVIL ACTIONS
S ect i o n 1. Who may be parties; plaintiff and defen•

dant. — On l y n a t u r a l or j u r i d i c a l p e r s o n s , or
en t i t i e s au t h ori zed by law ma y be p art i e s in a civil
a c t i o n . The t e r m " p l a i n t i f f ma y re f e r t o the
c l a i m i n g p art y, the c o u n t e r - c l a i m a n t , the cros s -
clai man t , or the third (fourth, etc.) -party plaintiff.
The t er m " d e fe n d a n t " ma y refe r t o the ori gi n a l
d e f e n d i n g party, the d ef en d an t in a cou n t e rc l ai m ,
the c r o s s - d e f e n d a n t , o r the t h i r d ( f ou rt h , et c. ) -
party d efen d an t , (a)
NOTES
1. As to who are juridical persons wit h capacit y to

sue, see Art. 44, Civil Code. The entities authorized by
law to be parties to a suit include the estate of a deceased
person (Limjoco vs. Intestate Estate of Fragante, 8 Phil.
776; Estate of Mota vs. Concepcion, 56 Phil. 712),
a polit ical par t y inco r po r at ed UNDE R Act 1459
(now,
B.P. Blg. 68, Corporation Code) and a regist ered labor
unio n , U ND E R Sec. 24(d), R.A. 875 (now, Sec.
243,
P.D. 442, Labor Code), wit h respect to its propert y. The
Roman Catholic Church has a juridical p ersonali ty
(Barlin vs. Ramirez, 7 Phil. 47).
2. . Alt hough the action was brought against

the "Broadway T heat re" which is not a jur idical person,
but the lessee thereof filed an answer and lat er ent ered
into a compromise agreement admit t ing liabilit y and
pur suant to which judgme nt was rendered, the
procedural defect was cured. The writ of execut ion
cannot be enforced a g a i n s t the t h e a t r e bu t a g a i n s t
the le sse e (Oscar Ventanilla Enterprises Corp. vs.
Lazaro, G.R. No. 53856, Aug. 21, 1980).
RUL E 3 P AR T I E S T O CIVI L A C T I O N S SE C . 2
3. Sec. 1 of t his Rule provides t hat only nat ur al or

juridical persons may be part ies in a civil action and, in
this case, the educat io nal inst it ut io n failed to comply with
its obligat ion to incorporate under the Corporat ion Law
after its recognit ion by the Gover nment . However, having
contract ed with its t eacher for 32 years under the
r epr esent at io n t hat it was possessed of juridical person•
alit y to do so, it is now est opped from denyi ng such
personalit y to defeat her claim aga inst it (Chiang Kai
Shek School us. CA, et al., G.R. No. 58028, April 18, 1989).
4. Under Sec. 15 of t his Rule, an ent it y, which is not

regist ered as a jur idical person and, t herefore, wit hout
the requisit e personalit y required of part ies to a suit, may
at least be sued as a defendant in the first inst ance so
t hat t he me mber s t her eo f shall be disclosed by being
required to be individually named in t he answer. This
except ion is dict at ed by the need to identify its member s
since it is from t hem t hat the plaint iff may seek relief on his
claim.
5. No n-r esident aliens living abroad may ma int ain

personal act ions against Philippine resident s in Philippine
court s, even if a co unt er cla im is br ought aga inst said
plaint iffs (Dilweg us. Philip, L-19596, Oct. 30, 1964).
Sec. 2. Parties in interest. — A**e* L p a rt y in

i n t eres t i * tk e p art y wh o st and s t o b e b en efi t ed o r
i nj u red b y -t h e j u d g m e n t i n the suit, o r the party
en t i t le d t o th e avai l s o f the suit. Un l es s o t h e rw i s e
au t h o ri ze d by law or t h es e Ru les, every act i o n mus t
be p ro s e c u t e d or d ef en d e d in the nam e of the real
party in i n t erest . (2a)
NOTES
1. A real part y in int erest is the part y who stands to

be benefited or injured by the judgment in the suit, or
the part y ent it led to the avails of the suit (Salonga vs.
r •
c 1
-ir e * * '
< (85
Warner, Barnes & Co., Ltd., 88 Phil. 125). The term

"party" includes a surety who, although not initially a
party to the case, is sought to be held liable on it s
performance bond, hence, as such party, it can appea l
from the order rendered thereon (PHHC vs. Jeremias,
et al., L-43252, Sept. 30, 1976).
2. If the suit is not brought in the name of or against
the real part y in int erest, a motion to dismiss may- be
filed on the ground t hat the complaint st at es no cause of
action (Sec. IfgJ, Rule 16).
3. Where the action was brought by t he attorney- in-
fact of the landowner in his own name, and not in the name
of his pr incipal, the action was proper ly dismissed (Ferrer
vs. Villamor, L-33293, Sept. 30, 1974; Marcelo vs. De Leon,
105 Phil. 1175).
Sec. 3. Representatives as parties. — Wh er e the

acti on is allowe d to be p ros e cu t e d or d e f en d e d by a
r e p r e s e n t a t i v e or s o m e o n e a c t i n g in a fi d u ci a r y
cap aci t y , the b en efi ci ary shall be i nclu d e d in the
title of the cas e and shall be d ee me d to be the real
party in in t erest . A re p re s e n t a t i v e ma y be a t ru st e e
o f a n e xp r e s s t ru st , a g u a rd i a n , a n e x e c u t o r o r
ad mi n i s t rat o r, or a party au t h o ri ze d by law or t h es e
Ru les. A n agen t act i n g i n hi s ow n n am e an d for
the b en efi t o f a n u n d i s c l o s e d p ri n ci p a l ma y su e o r
b e sue d wi t h ou t j oi n i n g the p ri n c i p a l excep t wh e n
the c o n t r a c t i n v o l v e s t h i n g s b e l o n g i n g t o the
p ri n ci pal. (3a)
NOTES
1. The impleading of the beneficiary as a part y in

the suit is now a mandat ory r equir ement , and not a dis•
cret ionary procedure as it was in the former section of
this Rule. This amended section enu me r at es the same
except ions to the rule t hat the act ion shall be brought in
86
the name of the real part y in int erest . The phrase "part y
a u t ho r i z e d b y law o r t he s e R u le s, " i nc lu d e s t he
r epr e se nt at ive of t he owner in eject ment proceedings
(Sec. 1, Rule 70), a receiver (Sec. 6, Rule 59) and t he
assig nee of a debt or in inso lvency pr oceedings. The
judgment creditor may sue the debtor of a judgment debtor
if the former denies the indebt edness (Sec. 43, Rule 39).
Other inst ances under the subst ant ive law are found in
Arts. 487, 1311, 1497, 1664, 2103 and 2118 of the Civil
Code.
2. A labor union, as the duly recognized bargaining

unit of its me mber s, can file a r epr esent at ive suit in t heir
behalf under t his section which aut hor izes a part y wit h
whom or in whose name a cont ract has been made for
the benefit of anot her, to sue or be sued wit hout joining
the part y for whose benefit t he act ion is pr esent ed or
defended (Liberty Mfg. Workers Union vs. CFI of Bulacan,
et al., supra; cf. National Brewery, etc. Labor Union of
the Phil. vs. San Miguel Brewery, Inc., L-19017, Dec. 7,
1963). This r e pr es e nt at ive capacit y of labor unions is
recognized under the Labor Code (Sec. 243) but, generally,
labor cases are not originally cognizable by the regular
courts.
3. . A*corporation cannot mai n t ai n an action

to recover property belonging to its stockholders as it
has no interest therein, it having a separate personality
and the properties not having been transferred to it
(Sulo ng Bayan, Inc. vs. Gregorio Araneta, Inc., et al., L-
31061, Aug. 17, 1976).
4. . Under the pr esent Rules, part ies in int erest
may be classified and defined as follows:
a. Indispensable parties: Those wit hout whom no
final det er minat io n can be had of an act ion (Sec. 7).
b. Necessary parties: Those who are not indispen•
sable but ought to be parties if complete relief is to be
87
accorded as to those already part ies, or for a complete

det er minat io n or sett lement of the claim subject of the
action (Sec. 8).
c. Representative parties: Those referred to in Sec.
3 of t his Rule.
d. Pro forma parties: Those who are required to be
joined as co-parties in suits by or against anot her part y
as may be provided by the applicable subst ant ive law
or procedural rule (Sec. 4).
e. Quasi parties: Those in whose behalf a class or
r epr esent at ive suit is brought (Sec. 17).
5. The 1940 Rules of Court provided for the t erm
"necessar y p ar t ie s" but t his was c hang ed to "proper"
part ies in t he 1964 Rules of Court. The pr esent Rules
r ever t ed to the original no me nc lat ur e as being more
terminologically accurat e.
In Amer ican law on the classificat ion of part ies, from
which we der ived and p a t t e r ne d our co ncept s wit h
appropr iat e modifications, formal or proper part ies are
those who have no int erest in the cont roversy bet ween
the immediat e lit igant s but have an int er est in the sub•
ject - mat t er which may be co nvenie nt ly set t led in the
suit, and t hereby prevent furt her lit igat ion; t hey may be
made part ies or not, at t he option of the co mp la inant .
Necessary par t ies are those par t ies who have such an
int er es t in t he su bje ct - mat t e r of a suit in equit y, or
whose right s are so involved in the controversy, t hat no
complete and effective decree can be made, disposing of
the mat t er in issue and dispensing complete just ice, un•
less t hey are before the court in such a ma nner as to
ent it le t hem to be heard in vindicat ion or prot ect ion of
t heir int er e st s (see Black's Law Dictionary, 4th ed.,
pp. 1275-1276; citat ions omitted).
The classificat ion t her e in also speaks of no mina l
part ies as those who are joined as plaintiffs or defendant s,
88
RUL E 3 P AR T I E S T O CI VI L AC T I O N S SE C . 4
not because they have any real int er est in the subject
mat t e r or because any relief is dema nd e d as aga inst
them, but merely because the technical rules of pleadings
require t heir presence on the record. This would roughly
co rr espo nd to our co ncept of and rule on pro forma
part ies wherein the jo inder of spouses is required, or in
cert io rar i act io ns w her e i n the court or agency whose
adjudicat ion is challenged is imp leaded as t he public
r espo nde nt , wit h the pr eva i ling part y as t he pr ivat e
respondent .
6. In the pr esent definit ion of a necessar y part y, the

addit io n of the a lt e r na t iv e clause "or for a complet e
det er minat io n or set t lement of the claim subject of the
action" is int ended to make the definit ion of necessary
part ies more comprehensive and complet e. Thus, if the
plaint iff creditor sues only one of the two joint debtors,
the judg me n t t her e i n would accord complet e relief as
between him and said defendant . However, the co-debtor
who was not impleaded is definit ely a necessar y part y
since a judgme nt in t hat act ion wit h respect to his own
joint liabilit y is necessar y for a complete set t leme nt of
the debt in favor of the plaintiff. Wit hout such alt er na•
t ive c la u s e , the u n i m p l e a d e d debt o r wo uld not b e
considered as a necessar y part y and t he procedure and
sanct ions in Sec. 9 of t his Rule could not be applied to
him.
7. . P a r t ie s who wer e not init ia l l y and

for mally impleaded as original part ies to the case, but
lat er bound t hemselves to comply wit h the t er ms of a
judg ment on compromise rendered t herein may also be
considered as quasi part ies in said case (Rodriguez, et
al. vs. Alikpala, L-38314, June 25, 1974).
Sec. 4. Spouses as parties. — H u sb an d an d wife

shall su e o* be su e d j oi n t ly, excep t as p rovi d e d by
law. (4a)
89
NOTE
1. The provision hereon in the 1964 Rules of Court

was merely a reproduct ion of Art. 113 of the Civil Code.
This is an illust r at io n of joinder of pro forma part ie s
required by the Rules. The propriet y of suits by or against
the spouses should now t ake into account the pert inent
provisions of the Family Code.
Sec. 5. Minors or incompetent persons. — A mi n o r

or a p erso n allege d to be i n c o m p et e n t , ma y su e or
b e sue d wit h the ass i st an c e o f hi s f ath er, mot h er ,
gu ard i an , or if he ha s n on e , a gu ard i a n ad litem.
(5a) r
NOTES
. r -
T
- -•
1. Under the 1964 Rules, a dist inct ion was made
bet ween une ma nc ipat ed and e ma nc ip at ed mino r s. An
unema nc ipat ed minor could sue or to be sued "t hrough"
his p ar e n t or guar dia n, t hat is, t he actio n had to be
br o u g h t i n the na m e o f o r a g a i n s t suc h p a r e n t o r
gua r d ia n wit h the des ig nat io n t hat h e wa s br ing in g
the action or being sued in t hat capacit y. In the case of
emancipat ed minors, they could sue or be sued "wit h the
assist ance" of t he par ent or guardian. The action was in
the name of or against the minor, wit h an indicat ion t hat
he was being assist ed t her ein by his parent or guardian.
Note t hat 18 years is now the age of majorit y (R.A. 6809)
and for cont ract ing marr iage (Art. 5, Family Code).
2. Also, under the former Rules, it was necessary

t hat to sue or be sued in t he cases provided by law, the
inco mpet ent must have been judicially declared as such,
and he could t hus sue or be sued only t hrough his parent
or guardian. Under the pr esent revision, the suit can be
brought by or against him personally but wit h the assis•
tance of his par ent s or his guardian. It is sufficient t hat
90
RUL E 3 P AR T I E S T O CIVI L AC T I O N S SE C . 6
his i n c o m p e t e n c y be alleg e d i n the c o r r e s p o n d i n g

pleadings and the t r ial court may pass upon the t rut h and
effects thereof.
Sec . 6. Permissive joinder of parties.—All p erson s

i n wh o m o r a g a i n s t w h o m an y ri gh t t o re li e f i n
re sp ec t t o o r a ri s i n g ou t o f the sam e t ra n s a c t i o n
or se ri e s of t ra n s a c t i o n s i s all ege d to exi st wh et h e r
jointly, severally, or in the alternative, may, except as
ot h e rw i s e p rovi d e d in t h es e Ru les, join as p lainti ffs
or be j oi n e d as d e f e n d a n t s in on e comp lai n t , wh er e
any q u e s t i o n o f la w o r fact c o m m o n t o all su c h
plainti ffs or to all suc h d e f e n d a n t s ma y ari se in the
action; but the Cou rt ma y mak e suc h ord e r s a s may
be ju s t to p rev en t an y p lai nti ff or d ef e n d a n t from
be in g e m b a r ra s s e d or put to exp en se in conn ecti on
wit h an y p ro c e e d i n g s i n w h i c h h e ma y h av e n o
i nt erest. (6)
NO TES
1. In the case of indispensable part ies and necessary

part ies, t heir jo inder in the act ion is compulsory (Secs. 7
and 8). This sect ion enunciat es the rule on permissive
joinder of part ies, t hat is, t hey can eit her he joined in
one single complaint or may t hemselves maint ain or be
sued in s epar at e suit s. This rule is also applicable to
count erclaims (Go, et al. vs. Go, et al., 95 Phil. 378).
2. Permissive joinder of part ies requires t hat:

a. The right to relief arises out of the same t rans•
action or series of t ransact io ns;
b. There is a quest ion of law or fact common to all
the plaint iffs or defendant s; and
c. Such joinder is not otherwise proscribed by the
provisions of the Rules on jurisdict ion and venue.
91
RUL E 3 R E M E D I A L L AW COMPENDIU M SEC . 7
"Series of transactions" means separate dealings with

the parties but all of which dealings are directly connected
with the same type of subject-matter of the suit. The
third requ ir ement is cont emplat ed by the proviso "except
as otherwise provided in these Rules" st at ed in this section.
Formerly, it was held t hat several employees, hired
under separat e contract s, could join in a suit for minimum
wages and non-pa yment thereof against t heir emplo yer,
their contracts being a "series of t ransact io ns" and t here
is a common quest ion of fact and law applicable to all of
t hem (Abrasaldo, et al. vs. Cia. Maritima, 104 Phil. 1051
fUnrep.J). The same rule applied where several employees
were joint ly dismissed and not paid by t heir employer
(International Colleges, Inc. vs. Argonza, 90 Phil. 470).
The foregoing sit uat ions are now governed by the Labor
Code, but the doctrines in said cases are still applicable to
ordinar y claims not involving labor cases or emplo yer-
emplo yee r e lat io ns h ip s as long as t he r equ is it e s for
permissive joinder of part ies are present .
3. Where a complaint contained two causes of action,

each for a sum of money less t ha n P20,000 (which was
t he n the ma x i mu m of the jur is d ict io na l a mo u n t for cases
cognizable by the municipal trial courts) owed by the
plaint iff to a different defendant and ar is ing from different
and independent transactions, alt ho ug h t he total of both
claims exceeded P20,000, the Regional Trial Court had no
jur isd ict io n t he n since the t ot alit y rule involving different
part ies, in Sec. 33(1) of B.P. Blg. 129 and Sec. 11 of the
I nt e r i m Rules, is subject to the r equir e me nt s in t his
sect ion, one of which is t hat the r ight to relief arises out
of the same t ransact ion or series of t r a n s a c t io n s
(Flores vs. Mallare-Philipps, et al., G.R. No. 66620, Sept.
24, 1986).
S ec. 7.
y
Compulsory joinder of indispensable parties.
— P a r t i e s i n i n t e r e s t w i t h o u t w h o m n o fi n a l
92
RUL E 3 P AR T I E S T O CIVI L AC T I O N S S E C S . 7- 8
d et ermi n at i on can be had of an action shall be j oi ned

either as p lain ti ffs or d efe n d a n t s . (7)
Sec. 8. Necessary party. — A n e c e s s a r y party is

one wh o i s not i n d i s p e n s a b l e but wh o ou gh t to be
joined as a p arty i f comp l et e relief i s to be accord e d
a s t o t h o s e a l r e a d y p a r t i e s , o r for a c o m p l e t e
d et e rm i n at i o n or s e t t l e m e n t of the clai m su b j ect of
the act i on . (8a)
NO TES
1. In the case of indispensable part ies, the action

cannot pro cee d unle s s t he y ar e jo ined (Borlasa vs.
Polistico, 47 Phil. 345; Cortez vs. Avila, 101 Phil. 705),
whereas the act ion can proceed even in the absence of
some necessar y part ies. If an indispensable part y is not
impleaded, any judg me nt would have no effect iveness;
wher eas, even if a necessar y part y is not included in
the suit, the case may be finally det er mined in court, but
the j u d g m e n t t h e r e i n will not r esolv e the who le
controversy.
2. . I nd is p e ns a b l e part ie s are t hose wit h such

an int er est in the co nt ro ver sy t hat a final decree
would necessarily affect t heir right s, so t hat the court
cannot proceed wit hout t heir presence. Necessary
part ies are those whose presence is necessary to
adjudicate the whole controversy but whose int erest s are
so far separable t hat a final decree can be mad e in
t heir absence wit ho ut affecting them (Wyoga Gas &
Oil Corp. vs. Schrack,
1 Fed. Rules Service, 292, cited in 1 Moran 191, 1979 Ed.).
3. Where, in an action to annul the sale of land made

by the defendant bank to its co-defendant spouses, the
act ion was d is missed wit h r espect to said defendant
spouses, the case must also be dismissed as against the
defendant bank. The defendant spouses are indispensable
93
part ies, hence having been discharged by the t rial court,

said court is no longer in a posit ion to grant the relief
sought by the plaint iff (Pillado us. Francisco, 105 Phil.
1254 fUnrep.J). On the other hand, where the act ion was
dismissed against the defendant s who, before the filing
of said action, had sold t heir int erest s in the land subject
of the suit to t hei r co - defendant , t he said d is m is sa l
against the former, who are only necessary part ies to the
suit, will not bar the act ion from proceeding against the
lat t e r as t he r e ma i n i n g de fe nda nt . Said r e ma i n i n g
defendant having been vest ed wit h absolut e tit le over
the subject propert y, the t rial court is in a position to
grant the relief sought if proved by the plaint iffs (Seno,
et al. us. Mangubat, et al., L-44339, Dec. 2, 1987).
Sec. 9. Non-joinder of necessary parties to be pleaded.

— W h e n ev e r in an y p l ead i n g in wh ic h a clai m is
asse rt ed a n ec es s a r y party i s not j oi n ed , the p lead e r
shall set forth his name , i f kn own , and shall state
wh y he i s omi t t ed. S h ou l d the Cou rt find the reaso n
for the o m i s s i o n u n m e ri t o ri o u s , i t ma y ord er the
i n c l u s i o n o f the o m i t t e d n e c e s s a r y p a rt y i f
j u ri sd i ct i on ove r hi s p erso n ma y be ob t ai n e d .
The fai lu re t o co mp l y wi t h the ord e r for hi s
i n clu si on , wi t h ou t ju st i fi ab le cau se , shall be d eeme d
a wai ve r of the clai m agai n s t suc h party.
The n on - i n c l u si o n of a n e c e s s a r y p arty doe s not
p re ve n t the Cou rt from p r o c e e d i n g i n the act i on , and
the j u d gme n t ren d e re d t h e re i n shall be wit h • ou t
p rej u d i ce to the right s of suc h n e c e s s a r y party. (8a,
9a)
NOTES
1. This revised provision r e it er at e s t he need for

impleading all necessar y part ies in order t hat the claims
involved in t he act ion may be complet ely det er mined
94
RUL E 3 P AR T I E S TO CI VI L AC T I O N S SE C . 9
t herein and t her eby avoid mult iplicit y of suit s. The non-
inclusion of the necessar y part y may be excused only on
mer itorious grounds, absent which the court shall order
him to be impleaded if jur isdict io n over his person can
be obtained, subject to the sanct ion in the second para•
graph of t his section. If his inclusion cannot, however,
be effected for valid reasons, under the third par agr ap h
of t his section the act ion may proceed but the judgment
t herein shall not prejudice the r ight s of t hat necessar y
part y. Logically considered, t herefore, neit her shall his
rights be prejudiced if his non- inclusion in the act ion in
the first place was due to a valid cause.
2. Under the circumst ances cont emplat ed in the first

par agr ap h , t he court shall order the inclusio n of the
necessary part y, t hat is, the plaint iff shall be ordered to
file an a me nded co mp la int imp le ad ing t he necessar y
part y t her ein as a co-defendant. Where the plaint iff un-
just ifiedly fails or refuses to do so, the sanct ion in the
second par agr ap h comes into play and the plaint iff shall
be deemed to have waived his claim against said part y.
The same rule applies to any pleading assert ing a claim
against a necessary part y.
3. It is t rue t hat under Sec. 3 of Rule 17, where the
plaint iff fails wit hout just ifiable cause to comply with an
order of the court , his co mp la int may be dis missed.
However, such dismissal shall not be ordered where the
plaintiff fails to comply wit h the order of the court for
the joinder of the necessary part y under this Rule, in line
with Sec. 11 thereof which provides t hat non- joinder of
part ies should not be a ground for dismissal of an act ion.
Thus, t he rule merely declaring the waiver of plaint iffs
claim against the necessar y part y whose non-inclusion
was unjustified, as provided in the second par agr aph of
this section, is in effect an except ion to the provision on
penalt ies imposed on a disobedient party under Sec. 3
of Rule 17 which would have ent ailed the dismissal of the
complaint itself.
95
RUL E 3 REMEDIA L LA W C O M P E N D I U M S E C S . 1 0 -1 1
Sec. 10. Unwilling co-plaintiff. — If the con se n t

of an y party wh o shou l d be join e d as p lain ti ff can
not be ob t ain ed , he ma y be mad e a d e f e n d a n t and
the reaso n t h erefo r shall be st at ed in the comp lai n t .
(10)
Sec. 11. Misjoinder and non-joinder of parties. —

Nei t h e r m i s j o i n d e r nor n on - j oi n d e r o f p a rt i e e i s
grou n d for d i s mi s s a l of an act i on . Part i e s ma y be
d rop pe d or ad de d by order of the cou rt on mot i o n of
an y party or on its ow n i n i t i at i ve at an y stag e of
the act i o n and on suc h t erm s as are just. Any clai m
a g a i n s t a m i s j o i n e d p art y ma y b e s e v e r e d an d
p ro c e e d e d wit h sep arat ely. (11a)
NOTES
1. Object ions to defects in the part ies impleaded

should be made at the ear liest opport unit y, t he mo ment
such defects become appar ent , by a mot ion to st rike the
names of the part ies impleaded. If t here is misjoinder, a
se p ar at e act io n should be br o ugh t agains t t he part y
misjoined. Objection to misjoinder cannot be raised for
the first time on appeal (Garcia vs. Chua, [CA], 50 O.G.
No. 2, 653).
2. Non-joinder does not warrant dismissal but the

court should order the inclusion of the necessary part y
(see Sanchez vs. CFI, 40 Phil. 155). But if the case is
erroneously dismissed on this ground without stating that
it is without prejudice, and plaintiff did not appeal, such
dismissal bars the filing of another action on the same
cause (Rivera vs. Luciano, L-20844, Aug. 14, 1965).
3. Alt hough both misjoinder of par t ies and causes
of act ion are not grounds for dismissal, t hey st and on
different premises as t here can be misjoinder of part ies
even if t here is only one cause of action common to them,
96
and t here can be misjoinder of causes of action even if

there is only one plaintiff.
4. In case of misjoinder of causes of action, the one

which has been misjoined need merely be severed and
proceeded wit h separ at ely, as provided in Sec. 6, Rule 2.
Along t he same rat io nale, Sec. 2 of Rule 31 allows the
court, in furt herance of convenience or to avoid prejudice,
to order a severance and separ at e trial of any claim, cross-
claim, count erclaim, or t hird-part y complaint, or of any
separ at e issue or of any nu mbe r of claims, cross- claims,
count erclaims, t hird -part y complaint s or issues.
5. See Note 2 under Sec. 2, Rule 17.
Sec. 12. Class suit. — Whe n the sub ject matt er

o f the c o n t ro v e r s y i s on e o f c o m m o n o r g e n e ra l
i n t eres t t o man y p e r s o n s s o n u m e r o u s that i t i s
i m p ract i c ab l e to joi n all as p art i es , a n u mb e r of
t h e m w h i c h the C o u rt fi n d s t o b e s u f f i c i e n t l y
n u me rou s and re p re s e n t a t i v e as to fully p rot ect the
i n t e re st s of all c o n c e rn e d ma y su e or d efen d for
the b en efit of all. Any part y in i n t ere s t shall hav e
the ri gh t t o i n t e rv e n e t o p ro t e c t hi s i n d i v i d u a l
i nt erest. (12a)
NOT E S
1. The requisit es of a class suit (or r epr esent at ive

suit) are:
--a. The subject - mat t er of the controversy is one of
common or general int erest to many persons;
--b. The part ies affected are so numerous t hat it is
impract icable to bring t hem all before the court; and
y c. The part ies bringing the class suit are sufficiently
numerous or r epr esent at ive of the class and can fully
protect the int erest s of all concerned.
97
RUL E 3 R E M E D I A L L AW C O M P E N D I U M SE C . 12
2. . The complaint must specially st at e t hat the same

is being br o ugh t in behalf of ot her s wit h who m
the part ies share a common int erest (Borlasa vs.
Polistico,
47 Phil. 345; Claudio vs. Zandueta, 64 Phil. 819). If
t here is a conflict of int erest between those sought to be
r epr esent ed and t hose who filed t he act ion, the class
suit will not prosper (Ibahez vs. Roman Catholic Church,
12 Phil. 227). The part y br inging the class suit must
have the legal capacit y to do so (Chinese Flour Importers
Association vs. Price Stabilization Board, 9 Phil. 461; Anti-
Chinese League vs. Felix, 77 Phil. 1012; Recreation &
Amusement Association vs. City of Manila, 100 Phil. 950).
However, wrongs suffered by some st ockho lders do not
nec es sar il y co nst it ut e the sam e wro ngs to ot he r
st ockho lder s as would cr eat e t hat commo n or gener al
int erest in t he subject - mat t er (Mathay, et al. vs. Con•
solidated Bank & Trust Co., et al., L-23136, Aug. 26,
1974). See also Newsweek, Inc. vs. IAC, et al. (G.R. No.
63559, May 30, 1986) regarding a supposed class suit for
libel against sugar plant er s in Negros which was denied
since each plaint iff has a separ at e and dist inct reput at io n
in the communit y.
3. Formerly, when the courts had jurisdict ion in labor

cases, it was held t hat a class suit to recover wages due to
23 la bor er s is not proper as t he part ie s sought to be
r e p r e s e n t e d ar e no t s o n u m e r o u s a s t o mak e i t
impract icable to include t hem individually in the com•
plaint (Diaz vs. De la Rama, 73 Phil. 104). The principle
would apply to ot her similar s it uat io ns not involving
labor relat ions.
4. One plaint iff was held qualified to bring a class

suit in behalf of the member s of the Methodist Episcopal
r elig io us associat io n, i t a p p e ar i n g t hat he had been
chosen by said associat ion to look after t heir int er est s
(De la Cruz vs. Seminary of Manila, 18 Phil. 334).
98
RUL E 3 P AR T I E S T O CI VI L AC T I O N S SE C . 12
5. . The p ar t ie s who br o u g h t the class suit

have control over the case wit h the right to compromise or
even discont inue the same. But a class suit cannot be
com• promised or dismissed wit hout the approval of the
court (Sec. 2, Rule 17). A member of the class is bound
by t he judgment in t he class suit, hence t his section
gives him the r ight to int er vene if he desir es to
prot ect his own individual int er est s. In the int erest of
just ice, the absent members should be notified of the
filing of the class suit whenever pract icable.
6. As amended, t his section now regulat es not only

the right and r equir ement s for a group to sue but also
to defend in a class suit.
7. A t axpa yer ' s suit (see Gonzales vs. Hechanova, L-

21897, Oct. 22, 1963; Phil. Constitution Association, Inc.
vs. Gimenez, L-23326, Dec. 18, 1965) or a stockholder's
derivat ive suit are in t he nat ur e of a class suit, alt hough
subject to the o t he r r eq u is it e s of the co rr espo nd ing
governing law (cf. Financing Corp. of the Phil. vs. Teodoro,
93 Phil. 679), especially on the issue of locus standi.
8. Claimant s of different portions embraced in a big
tract of land cannot be impleaded altogether in a class
suit by or a g a i ns t t he m as eac h one of t he m ha s a
par t ic u la r int er e s t i n his own po rt io n, sep ar at e and
different from the ot hers (see Rallonza vs. Villanueva,
15 Phil. 531; Berses vs. Villanueva, 25 Phil. 473; Sulo ng
Bayan, Inc. vs. Gregorio Araneta, Inc., et al., supra).
However, if t he r igh t to relief arose out of the same
t r a ns a c t io n or ser ie s of t r a ns a c t io n s and t her e is a
common quest ion of law or fact, they may be joined in
one suit as plaint iffs or defendant s in accordance with
Sec. 6 of this Rule on permissive joinder of part ies.
9. An act ion does not become a class suit merely

bec ause i t i s d e s i g n a t e d as such in the p le a d i ng s .
Whet her the suit is or is not a class suit depends upon
99
the att ending facts, and the complaint or other pleading

init iat ing the class action should allege the exist ence of a
subject-matter of common interest, as well as the existence
of a class and the number of persons in the alleged class,
in order t hat the court may be able to deter mine whet her
the me mber s of the class are so numerous as to make it
impracticable to bring t hem all before the court, to contrast
the number appear ing on the record with the number in
the class, to ascert ain whet her the cla imant s on record
adequat ely r epr ese nt the class, and to verify t hat the
subject - mat t er is of general or common int erest (Mathay,
et al. vs. Consolidated Bank & Trust Co., et al., supra; cf.
Ortigas & Co. vs. Ruiz, et al., L-33952, Mar. 9, 1987).
10. Under the former Rule, when a supposed class

suit was filed, it was the dut y of the court to make sure
t hat t he par t ie s act ua ll y before i t were suffic ie nt ly
nu mer o us and r epr ese nt at ive of the class. UNDE R the
pr esent formulat ion, such fact is one of the requisit es for
inst it ut ing and maint aining a class suit. The significance
of such change is t hat the part ies br inging the suit have
the burden of proving the sufficiency of the r epr esent at ive
charact er which they claim. Corollarily, the defendant
can assail t hat fact t hrough a motion to dismiss on the
gr o u n d t hat the p la int if fs hav e n o capac it y t o sue
(Sec. lfdj, Rule 16), t hat is, t hat they do not have the
r epr esent at io n t hat they claim (see Lunsod vs. Ortega,
46 Phil 664).
Sec . 13. Alternative defendants. — Wh e r e the

p lain ti ff i s u n c e rt ai n agai n s t wh o of s eve ral p e rson s
he i s ent i t le d to relief, he ma y join any or all of t h e m
as d e f e n d a n t s in the alt ern at i ve, alt h ou g h a ri ght
to re li e f a g a i n s t on e ma y be i n c o n s i s t e n t wi t h a
ri ght of relief agai n s t the other. (13a)
100
RUL E 3 P AR T I E S TO CI VI L AC T I O N S S E C S . 1 4 -1 5
NOTE
1. Thus, where the owner of the goods is not sure

whet her the same was lost in t r ansit or while it was on
deposit in the warehouse of the ar r ast r e operat or, he
may sue the shipper or the operator in the a lt er nat ive,
alt hough the r ight against the former is on admir a lt y
while that a g a i n s t the o per at o r i s on co nt r ac t (see
Insurance Company of North America vs. United States
Lines Co., L-21839, April 30, 1968).
Sec. 14. Unknown identity or name of defendant. —

Wh en eve r the i d en t i t y or nam e of a d e f e n d a n t i s
u n kn o wn , h e ma y b e sue d a s the u n k n o w n own er ,
heir, d e vi s ee , or by su c h ot he r d e si g n at i o n as the
case ma y req u i re; wh e n hi s i d en t it y o r true nam e
i s d i s c o v e r e d , the p l e a d i n g m u s t b e a m e n d e d
acco rd i n gly. (14)
NO TES
1. A relat ed provision in Rule 14 reads as follows:

"Sec. 14. Service upon defendant whose identity
or whereabouts are unknown. — In any act io n,
whenever the defendant is designat ed as an unknown
owner, or the like or whenever his wher eabout s are
u nk no w n an d ca nno t be asc er t a ine d by diligent
inquir y, service may, by leave of court, be effected
upon him by publicat ion in a newspaper of general
circulat ion and in such places and for such time as
the court may order."
2. This presupposes t hat the plaint iff really does not
know the ident it y and/or address of the defendant or is
not in a position to ascert ain such identit y or whereabout s.
Sec . 15. Entity without juridical personality as

defendant. — W h e n tw o o r mo r e p e r s o n s no t
101
o rg an i ze d a s a n en t i t y wit h ju ri d i cal p e rs on a l i t y
ent er into a t ran sact i on , they ma y be sue d UNDER
the nam e by wh i c h the y are gen era l ly or com m on l y
kn ow n .
I n the a n s w e r o f su c h d e f e n d a n t , the n ame s an
d a d d r e s s e s o f the p e r s o n s c o m p o s i n g sai d ent it y
mus t all be revea led . (15a)
NOT E S
1. Rule 14 pert inent ly provides as follows:

"Sec. 8. Service upon entity without juridical
personality. — When persons associat ed in an ent it y
wit hout juridical personalit y are sued under the name
by which t hey are generally or commonly known,
service may be effected upon all the defendant s by
serving upon any one of t hem, or upon the person in
charge of the office or place of business ma int ained
i n such na me . Bu t suc h ser vice sha l l not bind
individually any person whose connect ion wit h the
ent it y has, upon due notice, been severed before the
action was brought."
2. Wit h respect to judgment s to be r endered in t his

sit uat ion, Sec. 6 of Rule 36 provides t hat when judg me nt is
rendered against two or more persons associat ed in an
ent it y wit hout juridical personalit y, the judg ment shall
set out t heir individual or proper names, if known.
3. The predecessor of t his section referred only to

suit s aga i ns t two or more per so n s asso c iat ed in any
business and who t r ansact such business under a com•
mon name. Accordingly, i t was understood t hat the suit
co nt e mp lat e d t her e i n could be br o ug h t only a ga ins t
associat ions which do not have an independent jur idical
personalit y but are engaged in business, t hu s excluding
non-profit or char it able associat io ns. That dist inct io n
has been eliminat ed in t his revision since non-profit or
102
RUL E 3 P AR T I E S TO CI VI L AC T I O N S SE C . 16
charitable associations can also commit and be liable for

actionable wrongs.
Sec . 16. Death of party; duty of counsel. — Wh en •

ever a part y to a p e n d i n g act i o n di es, and the clai m i
s not t h e re b y e xt i n g u i s h e d , i t shall be the dut y of his
cou n s e l to in form the cou rt wi th i n thirt y (30) days
after suc h d eat h of the fact thereof, and to give the
nam e an d ad d re s s of his legal rep re s en t at i v e or
re p re s e n t a t i v e s . Fai lu re of cou n se l to comp l y wit h
this dut y sh all be a grou n d for d i sci p li n a ry acti on.
The h ei r s of the d ecea s e d ma y be all owe d to be
su b st i t u t e d for the d e c e a s e d , wi t h ou t req u i ri n g the
a p p o i n t m e n t of an exe cu t o r or ad mi n i st rat o r and
the Cou rt ma y ap p o i n t a gu ard i a n ad litem for the
minor h ei rs.
The C o u rt sh a l l f o r t h w i t h ord e r sai d lega l
r e p r e s e n t a t i v e o r r e p r e s e n t a t i v e s t o ap p ea r and
be su b st i t u t e d wi t h i n a p eri od of thirty (30) days
from n ot i ce.
I f n o le ga l r e p r e s e n t a t i v e i s n a m e d b y the
c o u n s e l for the d e c e a s e d part y, o r i f the on e s o n ame
d sh al l fail t o ap p e a r w i t h i n the s p e c i f i e d p eri od , the
Cou rt ma y ord e r the o p p o s i n g party, wi thi n a
sp eci fi ed t i me, to p rocu re the ap p oi n t m en t of an
e xecu t o r or ad m i n i st rat o r for the estate of the
d ec ea s ed , an d the latter shall i m m ed i a t e l y app ear for
and on b eh alf of the d eceased . The court ch a rge s in
p ro cu ri n g suc h ap p o i n t m en t , i f defrayed by the
op p osi n g party, ma y be recove red as costs. (16a, 17a)
NOTES
1. This section is a consolidation of Secs. 16 and 17

of the former Rule, with the following amendments:
103
a. The dut ies of the counsel, as specified under the

first paragraph, are now limited to the matt er of the deat h
of his client and not in case of the lat ter' s incapacit y or
incompetency. The reason for the change is t hat the deat h
of the client will require his subst it ut io n by his legal
r epr esent at ive to be ordered by t he court wherein t he
case is pending, or even the appo int ment of an executor
or admin ist r at o r but, t his t ime, by a court of pro bat e
jur isdict ion. In the case of incapacit y or incompetency of
the part y, this fact will merely ent ail the appoint ment of
a guar dian ad litem by t he court t rying the case upon
being informed t hereo f by counsel of t he par t ies, the
part ies t hemselves, or other reliable sources.
b. The failure of t he counsel to comply wit h his
dut ies under t his sect ion is now a ground for disciplinar y
action, as his inact ion will result in undue delay in the
proceedings or may prejudice the int erest s of his client's
successors in int erest.
c. In the absence of a legal r epr e se nt at ive of the
deceased part y, the opposing part y shall be r equir ed,
wit hin a specified time, to procure the appo int ment of
an executor or administ rat or for the est at e of the deceased
in an appropr iat e special proceeding. Under the former
pr o cedur e, in such a cont ingency t he opposing part y
was aut horized to directly procure the appoint ment of a
legal r e pr e s e nt at iv e for the deceased by himself and
app ar e nt l y w it ho u t part ic ipat io n by t he he ir s of t he
deceased and, consequent ly, with limited judicial interven•
tion in the choice and appoint ment of such r epr esent at ive.
2. These provisions apply where the claim survives

and r egar d le ss of w het he r e it he r t he plaint iff or the
defendant dies or whet he r t he case is in the t r ia l or
appe llat e co urt s. No su m mo ns e s ar e r equ ir e d to be
served on the subst it ut e defendant s. Inst ead, the order
of subst it ut ion shall be served upon the part ies subst it ut ed
in the action; ot herwise, the court does not acquire jur is-
104
diction over the subst it ut e part y (Ferreria, et al. vs. Vda.

de Gonzales, et al., 104 Phil. 143). Proceedings conducted
by the t rial court after the deat h of the defendant , and
wit hout such subst it ut ion, are null and void (Lawas vs.
CA, et al., L-45809, Dec. 12, 1986).
3. Upon lear ning of the deat h of a part y, the t rial

court should not order the a me nd me nt of the complaint
but the appearance of the decedent's legal repr esent at ive.
An order for the- amendment of the co mpla int before
subst it ut io n of the deceased part y is void (Casenas vs.
Rosales, L-18707, Feb. 28, 1967). Upon the deat h of the
part y, t he at torney has no furt her aut hor it y to appear,
save to inform the court of his client's deat h and to take
steps to safeguard t he decedent ' s int er est , unless his
services are furt her r et ained by the subst it ut e part ies
(Vda. de Haberer vs. CA, et al., L-42709, May 26, 1981;
Lavina, et al. vs. CA, et al., G.R. Nos. 78295 and 79917,
April 10, 1989; Heirs of Maxima Regoso vs. CA, et al.,
G.R. No. 91879, July 6, 1992). The defendant ' s legal
heirs are his legal r epr esent at ives if t here is no pending
proceeding for the set t lement of his est ate (Magdalera vs.
Benedicto, 103 Phil. 1102 [Unrep.J). The rule is t hat in
the subst it ut io n of the deceased, priorit y is given to his
legal r epr esent at ive, i.e., the executor or administ r at or of
his est at e. The court may allow the subst it ut io n by the
he ir s inst ea d i f t her e i s u nr e a s o na b l e delay in the
appo int ment of an executor or administ r at or or when the
est ate was extrajudicially sett led (Lawas vs. CA, et al.,
supra).
4. The quest ion as to whet her an action survives or

not depends on the nat ure of the action and the damage
sued for. In the causes of action which survive, the wrong
complained of affects primar ily and principally propert y
and property righto, the injuries to the person being merely
inc ident al; while in the causes of act ion which do not
sur vh » , the injury complained of is to the person, the
105
property and property rights affected being incidental.

Thus, for inst ance, the claim of the deceased plaint iff in
the present action to quiet tit le over the land in lit igat ion
affects primar ily and principally property and propert y
right s and, t herefore, is one t hat survives even after her
deat h (Bonilla, et al., etc. vs. Barcena, et al., L-41715,
June 18, 1976).
5. . The actions t hat survive against the

decedent ' s r e p r e s e nt a t i v e s are : (a) act io ns to r eco ver
rea l and personal propert y against the est at e; (b) act ions
to enforce liens t hereon; and (c) act ions to recover for an
injury to person or propert y by reason of tort or delict
commit t ed by the deceased (Board of Liquidators, etc.
vs. Heirs of Maxima M. Kalaw, et al, L-18805, Aug. 14,
1967). See Rule 87 and notes t her eunder. See also
Sec. 20 of t his Rule whic h ha s been a me nd e d an d
pr o vide s a new procedure for cont ract ual money
claims.
6. Where during the pendency of act ions filed by

the guar dian in behalf of his ward, the lat t er died and
the former was t her ea ft er appo int ed ad m in i st r at o r of
the est at e of the decedent, he may be subst it ut ed as a
represent at ive part y in the pending act ions (Ypil vs. Solas,
et al., L-49311, May 27, 1979).
7. It has been held t hat when a part y dies and the

act ion sur vives his deat h, but no order of subst it ut io n
was issued or effected by the court, the trial held by said
court was null and void since it did not acquire jurisdic•
tion over the legal r epr esent at ive or heirs of the decedent,
hence the judg ment was not binding on t hem (Ferreria,
et al. vs. Vda. de Gonzales, et al., supra). In a lat er case,
however, i t was also held t hat where counsel failed to
comply wit h his dut y under t hen Sec. 16 to inform the
court of the deat h of his client, the defendant , and no
subst it ut io n of such part y was effected, the proceedings
and ju dg me n t t her e i n are valid i f t he act ion (in t his
case, eject ment ) sur vives the deat h of said part y and
106
said decision is bind ing upon his successor in int er est

(Sec. 47lb]. Rule 39; Florendo, et al. vs. Coloma, et al
G.R. No. 60544, May 19, 1984).
In the Florendo case, however, the defendant died
while the case was pending on appeal in the Court of
Appeals and, consequent ly, involved only a review of the
evidence pr esent ed with the part icipat ion of the original
part y lit igant s. Also, since the binding effect of a judg•
ment in an eject ment case upon the successors in int erest
of a deceased lit iga nt are specifically provided for in
Rule 39 , the p r o c e d ur a l lapse ap pe ar s to have been
disregarded in t he int er est of subst ant ial just ice.
8. . Wher e the plaint iff fat he r br o ugh t an
act ion against a common car r ier for the deat h of his
son, but because of his failing healt h he assigned all
his right s t her ein to a t hird part y, the subsequent
deat h of said original plaint iff does not t er minat e the
action. The rights assigned are t ransfer able in charact er
and this sit uat ion is not covered by Sec. 17 (now
included in Sec. 16, as amended) of this Rule since
the plaint iff died after he had already assigned his
r ight s in the action. Where a right is t ransferred
before t he inst it ut ion of the action, the suit should be
brought in the name of the assignee; where t he
t ransfer is made pendente lite, the assignee should be
s u bs t it ut e d for t he original plaint iff. The failure to
effect such formal subst it ut ion, however, will not
prevent the court from render ing judgment in favor of
the assignee. If judgment was r endered in favor of the
ass ig no r becaus e the s u bs t it ut io n was not duly
effected, the ass ig no r shall hold t he proceeds of t he
ju d g me n t in t r us t for the ass ig nee (Del Castillo vs.
Jaymalin, et al., L 28256, Mar. 11, 1982).
9. Sec. 16 of t his Rule requires t hat prompt notice
of the deat h of the plaint iff should be made so t hat sub•
st itut ion by a legal r epr esent at ive of the part y may be
effected. Where the counsel of plaint iff filed such motion
107
RUL E 3 R E M E D I A L L AW COMPENDIU M S E C S . 1 7 -1 8
for subst it ut ion 5 days after a decision in the case had

been rendered by the court, alt hough plaintiff had died
more t ha n a year prior t heret o, said judg me n t is not
binding. No valid subst it ut io n having been made, the
court never acquired jur isdict io n over the legal repre•
sent at ive for the purpose of making him a part y in the
case. Furt her mo re, the motion for subst it ut io n filed by
counsel for the deceased is null and void as counsel' s
aut hor it y to r epr esent the client had ceased wit h the
latter' s deat h (Chittick vs. CA, et al., L-25350, Oct. 4, 1988;
cf. Saligumba, et al. vs. Palanog, G.R. No. 143365,
Dec. 4, 2008).
Sec . 17. Death or separation of a party who is a

public officer. — Whe n a p u bl i c o fficer is a p a r t y in
a n a c t i o n i n hi s o ffic ia l c a p a c i t y an d d u r i n g it s
p e n d e n c y d ie s , r e s i g n s , o r o t h e r w i s e c e a s e s t o hol d
office, t he a c t io n ma y b e c o nt i n u e d an d m a i n t a i n e d
b y o r a g a i n s t hi s s u c c e s s o r if, w it h i n t h i r t y (30) da y s
aft e r t he s u c c e s s o r t ak e s office o r suc h t im e a s ma y
b e g r a n t e d b y t he c o ur t , i t i s s a t is f a c t o r i l y s ho w n
t o t he C o u r t b y an y p a r t y t ha t t he r e i s a s u b s t a n t i a l
nee d for c o n t i n u i n g o r m a i n t a i n i n g i t an d t hat t he
successo r ado pt s o r co nt inue s o r t hr eat e n s t o adop t
o r c o n t i n u e t he a c t io n o f hi s p r e d e c e s s o r . Befo r e a
s u b s t i t u t i o n i s m a d e , t he p a r t y o r o ffic e r t o b e
a ffect ed, u n l e s s e xp r e s s l y a s s e n t i n g t h e r e t o , sha l l
b e g i v e n r e a s o n a b l e n o t i c e o f t he a p p l i c a t i o n
t h e r e f o r an d a c c o r d e d a n o p p o r t u n i t y t o b e h e a r d .
(18a)
Sec . 18. Incompetency or incapacity. — If a p a r t y

b e c o m e s i n c o m p e t e n t o r i n c a p a c i t a t e d , t he co u r t ,
upo n mo t io n w it h no t ic e , ma y allo w t he a ct io n t o
b e c o n t i n u e d b y o r a g a i n s t t he i n c o m p e t e n t o r
i n c a p a c i t a t e d p e r s o n a s s is t e d b y hi s lega l g u a r d i a n
or g u a r d i a n ad litem. (19a)
108
RUL E 3 P AR T I E S T O CI VI L A C T I O N S S E C S . 1 7 -1 9
Sec . 19. Transfer of interest. — In cas e of an y

t r a ns f e r o f i nt e r e s t , t he a c t io n ma y b e c o nt i n u e d
b y o r a g a i n s t t he o r i g i n a l p a r t y , u n l e s s t he C o ur t
u p o n mo t io n d ir e c t s t he p er s o n t o who m t he i nt e r e s t
i s t r a n s f e r r e d t o b e s u b s t i t u t e d i n t he a c t io n o r
jo ine d wit h t he o r i g i n a l p a r t y . (20)
NOT E S
1. These sect ions provide for the other inst ances

wherein subst it ut io n of part ies is proper, subject to the
condit ions t herein and whenever the court, upon motion
and notice, finds just ifiable reason therefor.
2. The "officer of the Philippines" cont emplat ed in

Sec. 17 does not include a judge who is sued in connec•
tion wit h t he exercise of his judicial funct ions as any
action impugning it is not abat ed by his cessat ion from
office (Republic vs. CFI of Lanao del Norte, L 33949,
Oct. 23, 1973, joint ly deciding t herein L-33986 and L-
34188).
3. Sec. 17 has been amended to make it clear t hat

the action cont emp lat ed t herein is one brought against
the public officer in his official capacit y. Also, this section
is no longer limit ed to act ions involving "an officer of
the Philippines," as it was under the former Rule, since
t her e are per mis s ib le inst ance s for ma i nt a ining civil
suit s against public officers of a foreign gover nment ,
subject to the nat ur e of the action and considerat ions of
int er nat io nal law and agreement s. Furt her mor e, it is
not required, as clarified under this revision, t hat what
the successor in office is cont inuing or t hreat ens to adopt
and continue is an action of his predecessor "in enforcing
a law alleged to be in violation of the Const it ut ion of the
Philippines." The challenged action of a public officer
need not necessarily involve a const it ut ional issue. It is
believed t hat no such delimit at ion was intended under the
old Rule which aut horized such subst it ut ion as long as
109
RUL E 3 REMEDIA L LA W C O M P E N D I U M SE C . 2 0
it was sat isfactorily shown to the court that t here was a

subst ant ial need for cont inuing the action (see Moore's
Federal Practice, Vol. II, p. 243).
4. Under Sec. 18, as amended, in case of supervening
incapacit y or incompet ency of a part y, the act ion shall
cont inue to be prosecut ed by or against him personall y
and not t hr o ugh his r e pr e s e nt at ive s , in line wit h the
ame nd ment s in Secs. 3 and 5 of this Rule, since he con•
t inues to be the real part y in int er est alt hough assist ed
by the corresponding guardian.
5. Sec. 19 of t his Rule does not provide t hat the

subst it ut io n of part ies cont emplat ed t her ein is manda•
tory, it being per missible to cont inue the act ion by or
against the original part y in case of t ransfer of int er est
pendente lite. As the original part y is bound by the final
outcome of the case, his subst it ut io n by the t ransfer ee is
not necessary unless t he su bst it ut io n by or the jo inder of
the lat t er is required by the court; ot herwise, failure to
do so does not w a r r a n t t he dis missa l of the case. A
t r a n s f e r e e pendente lite is a p r o p e r , an d no t an
i nd is p e ns a b le , part y in t he case (Heirs of Francisco
Guballa, Sr., et al. vs. CA, et al, G.R. No. 78223, Dec. 19,
1988). However, where t he t ransfer was effected before
the c o m me nc e m e n t of the su it , the t r ans f e r e e mus t
necessar ily be the defendant or the plaintiff, but he may
file a t h ir d - p a r t y co mpla int aga ins t and imp lead the
t ransferor in the act ion whenever the same is necessar y
and proper for a complete det er minat io n of all the r ight s
of the part ies.
S ec . 20 . Action on contractual money claims. —

Whe n t he act io n i s for r eco ver y o f mo ne y a r is i n g
fro m c o n t r a c t , e x p r e s s o r i m p l i e d , an d t he
de fe nda nt dies before e nt r y of final ju d g me n t in the
Court i n whic h t he act io n wa s p e nd in g a t the t im e o
f suc h d e a t h , i t sha l l no t b e d is m i s s e d bu t sha l l
110
RUL E 3 P AR T I E S T O CIVI L AC T I O N S SE C . 2 0
i nst ea d be a llo wed to co nt inu e unt i l e nt r y of final

j u d g m e nt . A fa vo r a b l e j u d g m e n t o bt a ine d by t he
p la int i f f t he r e i n s ha l l b e enfo r ce d i n t he m a n n e r
espec ia l l y pr o vide d i n t hes e Rule s for p r o s e c u t i n g
claims ag a inst the est at e of a deceased person. (21a)
NOTE S
1. This was t he former Sec. 21 of the old Rule which

has been amended to provide a new procedure specially
for the disposit ion of co nt r act ual money claims where
the defendant dies before the t er minat ion of the action
thereon. Two impo rt ant aspect s thereof must incept ively
be t ake n note of: (1) the act ion mus t pr imar ily be for
recovery of mo ney, debt or int er es t t her eo n, and not
where t he subject mat t e r is pr imar ily for some ot her
relief and t he collect ion of an amount of money sought
t herein is merely incident al t heret o, such as by way of
damages; and (2) t he claim subject of the act ion arose
from a cont ract, express or implied, ent ered into by the
decedent in his lifet ime or t he liabilit y for which had
been assumed by or is imput able to him.
2. Under the former procedure, the dat e of the deat h

of the defendant , in relat ion to the stage of the act ion at
t hat time, was det er minat ive of the procedure t hat should
be followed t hereaft er. If he died "before final judgment
in t he Court of F ir s t I nst ance, " t he act ion should be
dismissed wit hout prejudice to the plaintiff present ing
his claim t herein as a money claim in the set t lement of
the est at e of the deceased defendant in accordance wit h
and as required by Sec. 5, Rule 86. The reason given for
the adoption of such procedure was t hat if the defendant
dies and despite such fact the case against him proceeds
to ju d g me nt , his e st at e will no net he l es s have to be
settled in a Regional Trial Court (then, t he Court of First
I nst ance) wher e in such ju dg me n t for money shall be
present ed as a claim. Consequent ly, unless the action is
111
RUL E 3 R E M E D I A L LA W C O M P E N D I U M SE C . 2 0
dismissed upon his deat h, the subsequent proceedings may

result in a Regional Trial Court reviewing the decision of
anot her or even the same Regional Trial Court involving
the same money claim.
On the ot her hand, if the defendant died while the
case was on appeal from the judgme nt of the Regional
Trial Court, the appeal will cont inue with the deceased
being s u bst it ut e d t her e i n by his he ir s or ot he r legal
represent at ive. When the judgment of the appellat e court
t her eo n is t her eaft er r ender ed and shall have become
final and executory, t hat judgment shall be the basis of the
money claim to be filed in t he pr o bat e court , as likewise
aut horized by Sec. 5, Rule 86.
3. The pr esent revised procedure is believed to be

s imp ler and more pr act ical since, after all, the court
wher e in t he co nt r act ual money claim was pend ing a t
the t ime of the decedent ' s deat h must have been fully
acquaint ed wit h the facts and issues t herein, or may even
have been in the process of render ing ju dgment t hereon.
Accordingly, to require the dismissal of said case and t he
t ransfer t hereof to the probat e court will cause an un•
necessar y and ot herwise avoidable burden on said court
which will t hen be obliged to try and adjudicat e the case
as a claim aga inst the est at e of the deceased defendant ,
with the possibilit y t hat it may even ent ail a duplicat ion
of efforts and proceedings in whole or in part .
4. Under the present procedure, if the defendant dies
before ent r y of final judg ment in the court where it was
pending at t hat time, t he action shall not be dismissed but
shall be allowed to cont inue unt il ent ry of final judg ment
t hereon. Such ent r y of final judgme nt may t ake place in
the Regional Trial Court itself, where no appeal was t aken
from its judgment , or it may be the ent ry of judg ment of
the appellat e court. In eit her case, the former objection
against the probat e court having to review the judgme nt
of anot her court, which may possibly be of the same rank,
112
RUL E 3 P AR T I E S T O CI VI L AC T I O N S SE C . 2 0
is eliminat ed. Since the money claim t hat shall t hereaft er

be filed in the probat e court is based upon a final and
executory judgme nt of a court of competent jur isdict ion,
the former does not have to, because it cannot, review
t hat judgment which, for t hat mat t er, is even conclusive
upon the part ies t heret o and t heir privies.
5. . This sect ion provides t hat the act ion shal l
be allowed to cont inue unt il ent ry of final judgment ,
hence it will be necessar y to have a legal r epr esent at ive
appear and be subst it ut ed for the deceased defendant .
For this purpose, the provisions of Sec. 17 of this Rule
shall also apply since the same governs regardless of
which of the part ies to the action dies or whet her the
case is in the trial or appellat e court.
6. . This sect ion speak s of co nt r act s , "expr ess

or implied," which is the same terminology used in Sec.
5, Rule 86 wit h regard to one of the bases for the
money claims to be filed t hereunder, and, formerly, in
Sec. 1(a), Rule 57 on preliminar y at t achme nt with
respect to the bases of causes of act ion cont emplat ed
t herein. In Leung Ben vs. O'Brien, et al. (38 Phil. 182),
it was held t hat the cont ract s, express or implied,
referred to in Rule 57, include all purely per so na l
obligat ions which are not based on a delict or a tort, t hat
is, a quasi-delict. According• ly, on the sam e co nce pt ua
l r at io na le , t he "implied" contract s ment ioned in this
section and in Sec. 5, Rule 86 may properly include what
are referred to in civil law as quasi-contract s, and t his is
the t erm now used in Sec. 1(a) of Rule 57, as amended.
7. Where the act ion is for the revival of a judgment

for a sum of money which has become st ale for non-
execut ion after the lapse of 5 years, and the defendant
dies dur ing t he pendency of said action, Sec. 20 of this
Rule is not involved since the action is merely to keep
alive t he judg me n t so t hat the sums a war ded in the
act ion for revival t hereof may be pr esent ed as claims
113
against the estate of the decedent (Romualdez, et al. va.

Tiglao, et al, G.R. No. 51151, July 24, 1981). In fact, to
be more accurate, the subject of the action is the dormant
judgment sought to be revived, and not a claim for a
sum of money of contractual origin, since the same
may also be said even if the claim arises from a crime or a
tort.
Sec. 21 . Indigent party. — A p a rt y ma y be

au t h o ri ze d to li ti gate his act i on , clai m or d efen s e
a s a n i n d i g e n t i f the c o u rt , u p o n a n ex parte
ap p li c at i o n an d h eari n g , i s sat i sfi ed that the p art y
i s on e wh o ha s n o mon e y o r p rop ert y su ffi ci en t and
avai lab le for food, sh elt e r an d b asi c n e c e s s i t i e s for
h i mse l f an d his fami ly.
S u c h a u t h o r i t y sh al l i n c l u d e a n e x e m p t i o n
from p ay m en t of d ocke t and oth e r lawfu l fees, and
o f t r a n s c r i p t s o f s t e n o g r a p h i c n ot e s w h i c h the
cou rt ma y ord er to be fu rn i sh e d him . The amou n t o
f the d o c k e t an d ot h e r la w fu l fee s w h i c h the i n d i gen
t wa s e xe m p t e d from p ayi n g sh all be a lien on an y
j u d g m e n t ren d e re d in the cas e favorab le to the
i n d i g en t , u n l e s s the Cou rt ot h e rw i s e p rovi d e s .
An y a d v e r s e p art y ma y c o n t e s t the gran t o f
su c h a u t h o r i t y a t an y t i m e b efor e j u d g m e n t i s
re n d e re d b y the t ri al cou rt. I f the Cou rt sh ou l d
d e t e rm i n e after h ea ri n g that the part y d ecla re d a s a
n i n d i g e n t i s i n fac t a p e r s o n wi t h s u f f i c i e n t i n com
e o r p rop e rt y, the p rop e r d ocke t an d ot h e r l a w f u l
fee s sh a l l b e a s s e s s e d an d c o l l e c t e d b y the clerk
of court. I f p a y m e n t i s not mad e wi t h i n the tim e
fixed by the cou rt, e xe c u t i o n shal l i ssu e for the
p a y m e n t thereof, wi t h o u t p rej u d i ce to suc h ot h e r
s a n c t i on s a s the Cou rt ma y i mp ose . (22a)
114
RUL E 3 P AR T I E S T O CI VI L A C T I O N S SE C . 2 2
NOT E S
1. . The t er m "indigent part y" has been

subst it ut ed for what used to be called a "pftoper lit igant."
For purposes of a suit in forma pauperis,-* paupe r lit igant
is not really a paupe r but a per so n who is indigent
alt hough not a public c har ge, i.e., that he has no
pr o pert y or income- sufficient for his support aside from
his labor, even if he is self-support ing when able to work
and in emplo yment (see Black's Law Dictionary, 4th Ed.,
pp. 913, 1284, citing People vs. Schoharie County, 121
N.Y., 345, 24N.E. 830). This same concept was adopt ed
for purposes of cr iminal cases in applying the provisions
of R.A. 6033, R.A. 6034 and R.A. 6035 .
2. . The pr ese n t concept of an ind igent lit igant

is believed to be more realist ic in light of the
co nt empor ar y sit uat io n. The proof of pauper is m
requir ed under the former Rule consisted merely of
affidavits or certificates of the corr espo nding t r e a s u r er s
t hat the part y had no regist ered pro pert y. I t was
considered inaccurat e and misleading since a part y may
be financially sound alt hough he ha s no t acq u ir e d or
r e g is t e r e d any pr o pe r t y for reasons of his own, hence
the pr esent revision opted for judicial in t er vent io n wit h
sanct io ns as set out in t his section.
3. Section 21 , Rule 3 of the pr esent Rules has not

been affected by the incorporat ion of Rule 141 on Legal
Fees and the two ame nd me nt s t heret o, now const it ut ing
Section 19 thereof. It is to be noted t hat said Section 21 of
Rule 3 could have been repealed when the present Rule
141 was adopted, or also amended when the lat t er was
then a mended. The fact is t hat the two provisions can be
har monized and can st and toget her.
Thus, when an applicat ion to lit igate as an indigent
lit igant is filed and the court finds t hat it complies wit h
Section 19 of Rule 141, the aut hor it y to lit igate as such is
115
RUL E 3 R E M E D I A L LAW COMPENDIU M SE C . 2 2
aut omat ically grant ed. However, if both r equir eme nt s

t herein have not been complied wit h, a hear ing shall be
conducted and the applicat ion resolved on the evidence
of the part ies. Also, the adverse part y may lat er still
co nt e s t the gr a n t before j u d g m e n t an d pro cee d i n
accordance wit h the pr esent provisions of said Section 21
(Algura, et al. vs. City of Naga, et al., G.R. No. 150135,
Oct. 30, 2006).
Sec. 22. Notice to the Solicitor General. — In an y

act i o n i n v o l v i n g the va l i d i t y o f an y t reat y , law ,
o rd i n a n c e , e x e c u t i v e ord e r , p re s i d e n t i a l d e c re e ,
ru les or re gu l at i o n s , the court, in its di sc ret i on , ma y
req u i re the ap p ea ran c e of the S oli ci t or G en e ra l wh o
ma y be h eard in p erso n or t h rou g h a r e p re s e n t a t i v e
duly d e s i g n a t e d by him. (23a)
116
RULE 4
VENU E OF ACTIONS
S e c t i o n 1. Venue of real actions. — A c t i o n s

aff ect i n g t it le to or p o s s e s s i o n of real p rop ert y, or
i n t eres t t h e rei n , shal l b e c o m m e n c e d an d t ri e d i n
the p ro p e r Cou rt w h i c h ha s j u ri s d i c t i o n ove r the
are a w h e r e i n the rea l p r o p e r t y i n v o l v e d , o r a
p orti o n t hereof, i s si t u at e d .
F o r c r b r e ^ n t r y an d d e t a i n e r a c t i o n s sh al l b e
c o m m e n c e d an d t ri e d i n the m u n i c i p a l trial Cou rt
o f t he m u n i c i p a l i t y o r c i t y w h e r e i n t h e re a l
p rop e rt y i n v o l v e d , or a p ort i o n thereof, i s si t u at ed .
( l[ a],2[a] a)
Sec . 2. Venue of personal actions. — All o t h e r

a c t i o n s ma y b e c o m m e n c e d an d tri e d wh e r e the
p lain ti ff or an y of the p ri n ci p a l p lai nt i ffs resi d es , o
r w h e r e the d e f e n d a n t o r an y o f the p ri n c i p a l
d e f e n d a n t s re si d es , or in the cas e of a n o n re s i d e n t
d e f e n d a n t wh er e h e ma y b e found, a t the el ect i o n
of the plaintiff. (2[b]a)
NO TES
1. Rule 4 formerly provided different rules of venue

in the so-called inferior court s and the Regional Trial
Courts, both in real and personal act ions, alt hough the
lower court s have long assumed t he st atus of courts of
record. Such var iant rules of venue so met imes result ed
in conflicting views requir ing clarificat ion. Furt her mo re,
Par. 9 of the I nt er im or Tr ansit io na l Rules and Guidelines
provided, as early as 1981, t hat "(t)he procedure to be
observed in met ropolit an trial courts, municipal trial courts
and mu n i c i p a l c ir cu it t r ia l co ur t s , i n all cases an d
proceedings, whet her civil or criminal, shall be the same
117
RUL E 4 REMEDIA L LA W C O M P E N D I U M S E C S 1-2
as t hat to be observed in the regional t rial courts." The

present revised Rule has adopted uniform rules of venue
for all t r ia l co urt s, the venue for real act io ns being
det ermined by the place where the real propert y is sit uat ed
and, for personal actions, by the residence of the part ies,
wit h special provisions for nonresident defendant s.
2. The venue of the real act ions co nt emp lat ed in

the first par agr aph of Sec. 1 of t his Rule shall be "in t he
proper court which has jur isdict ion over the area wherein
the rea l pr o p er t y invo lved, or a po rt io n t her eo f, is
s it uat ed. " This is so because under the a me nd me nt s
i nt r o du c e d by R.A. 7691 to Secs. 19 an d 33 of B.P. Blg. 129, both the Re
courts now have jur isdict ion over real act ions, depend ing
on the va lu e of the p r o p er t y in c o nt r o ve r s y . Thi s
pr esuppo ses, however, t hat such real act ion invo lves
the tit le to or the possession of the real propert y or any
int erest t herein.
3. Where the subject - mat t er of the act ion involves

var ious parcels of land s it uat ed in different provinces,
the venue is det ermined by the singular it y or plur alit y
of the t r ansact io ns invo lving said parcels of land. Thus,
where said parcels are t he objects of one and the same
t ransact io n, the venue was in t he t he n Court of Fir st
Inst ance of any of the provinces wherein a parcel of land
is sit uat ed (El Hogar Filipino vs. Seva, 57 Phil. 873). If
the parcels of land are subject of separat e and dist inct
t r ansact io ns, t her e i s no common venue and sep ar at e
act ions should be laid in the Court of First Inst ance of
the province w her e i n each parcel of land i s s it uat e d
(Mijares, et al. vs. Piccio, etc., et al., 101 Phil. 142).
4. Act io ns for the a n n u l m e nt or r esc iss io n of a

sale and the r et ur n of realt y (Muhoz vs. Llamas, et al.,
87 Phil. 737; Gavieres vs. Sanchez, et al., 94 Phil. 760;
Punsalan vs. Vda. de Lacsamana, et al., G.R. No. 55729,
Mar. 28, 1983), to compel the vendor to accept payment
118
RUL E 4 VENU E OF ACTION S SEC S . 1-2
of t he pur chas e price of t he land (Lizares vs. Caluag,

et al., L-17699, Mar. 30, 1962), or to compel the vendor to
deliver the cert ificate of t it le to the land (Espineli, et al.
vs. Santiago, et al., 107 Phil. 830) are real actions and
the location of the land det er mines the venue of the action.
But act ions only to recover the pur chase price of the land
(Garcia vs. Velasco, 72 Phil. 248) or for recovery against
the Assur ance Fund (Hodges vs. Treasurer of the Phil.,
50 Phil. 16) are personal act ions.
5. An act ion for the annu l me nt of the cancellat ion

of the award of a lot in favor of the plaintiff, which he
was pr epar e d to pay for pur s ua nt to said award, does
not involve the issue of possession or tit le to the propert y,
hence it is a personal act ion (Hernandez vs. DBP, et al., L-
31095, June 15, 1976).
6. . An act ion for t he review of an

ad m i n is t r at iv e decision involving real propert y should he
brought in the Regional Trial Court of the place where
the officer who render ed t he decision holds office, and
not where the land is sit uat ed (Salud vs. Executive
Secretary, L-25446, May 22, 1969), such as where the
mat t er in disput e is a fishpond permit (Digon vs.
Bayona, 98 Phil. 442; Sarabia vs. Secretary, 104 Phil. 115)
or t he r ight to a t imber concession (Suarez vs.
Reyes, L-19828, Feb. 28, 1963), the location of the
propert y being immat er ial.
7. . An act ion to compel the mo rt gagee to

accept payme nt and for the consequent cancellat io n of
a real est at e mort gage is a personal act ion, if the
mort gagee has not foreclosed the mortgage and the
mort gagor is in possession of t he pr emises, since
ne it her the plaint iff mort gagor' s tit le to nor possession
of the propert y is in quest io n (Hernandez vs. Rural
Bank of Lucena, Inc., L-29791, Jan. 10, 1978; cf. Chua
vs. Total Office Products, etc. Inc., G.R. No. 152808, Sept.
30, 2005), ot herwise, it is a real action.
119
RUL E 4 R E M E D I A L LA W C O M P E N D I U M S E C S . 1-2
8. An^ action by the landowner against the subdivi•

sion developer for the rescission and t erminat io n of their
contract and the r et ur n to the plaint iff of all document s
and t it les, wit h damages by reason of the defendant ' s
cont ract ual breach, is a real act ion as the relief sought
will necessar ily ent ail t he recover y by the plaint iff of
possession of the land or such unsold port ions thereof,
hence t he venue of the action is determined by the location
of the real propert y (Tenorio vs. Paho, et al, L-48117,
Nov. 27, 1986).
9. An act ion filed by the husband for damages, based
on the wife's adult ero us acts, and for his shar e in the
fruits of the conjugal par t ner ship, with a prayer for pre•
l i m inar y inju nct io n to r est r a i n her from selling real
pr o pert y be lo nging to t he conjugal p a r t ne r s h i p , is a
personal act ion as he does not t hereby ask to be declared
the owner thereof, nor for possession or part it io n of the
same, but merely seeks to exercise his right as adminis•
t rator of the conjugal part ner ship (De Guzman, et al. vs.
Genato, et al., L-42260, April 10, 1979).
10. The venue in eject ment cases under Sec. 1 of this

Rule ma y be c ha ng e d by a g r e e m e n t of the p a r t i e s
p u r s u a nt to Sec. 4 t her eo f (Villanueva vs. Mosqueda,
et al, G.R. No. 58287, Aug. 19, 1982), but it must now be
made in writ ing and before the filing of the act ion.
11. . The rules of venue for per so nal actions in

the infer ior co urt s an d in t he Regio nal T r ia l Co urt s
ar e generally made to depend on the residence of the
part ies. The residence referred to is the place where
the part y actually resides at the t ime the act ion is
inst it ut ed (De la Rosa vs. De Borja, 53 Phil. 998), not his
per ma ne nt home or domicile (Koh vs. CA, et al, L-40428,
Dec. 17, 1975; cf. Arevalo vs. Quilatan, G.R. No. 57892,
Sept. 21, 1982, regarding service of summo ns at
defendant ' s residence).
120
RUL E 4 VENU E OF ACTION S SE C . 3
12. The residence of t he person is his personal, act ual

or physical habit at ion or his act ual residence or place of
abode (Fule, et al. vs. CA, et al., L-40502, Nov. 29, 1976),
whet her per ma ne n t or t empor ar y as long as he resides
with cont inuit y and consist ency t her ein (Dangwa Trans.
Co., Inc. vs. Sarmiento, et al., L-22795, Jan. 31, 1977;
Ang Kek Chen vs. Spouses Calasan, G.R. No. 161685,
July 24, 2007).
Sec . 3. Venue of actions against nonresidents. — If

an y o f t he d e f e n d a n t s do e s no t r e s i d e an d i s no t
fo un d i n t he P h i l i p p i n e s , an d t he a c t io n affect s t he
p e r s o n a l s t a t u s o f t he p la int iff, o r an y p r o p e r t y o f
said d e f e n d a n t lo c a t e d i n t he P h i l i p p i n e s , t he act io n
ma y b e c o m m e n c e d an d t r ie d i n t he C o u r t o f t he
p la c e w h e r e t he p l a i n t i f f r e s i d e s , o r w h e r e t he
p r o p e r t y o r an y p o r t io n t he r e o f i s s i t u a t e d o r fo und .
(2[cla)
NOT E S
1. Wher e a per so na l act ion is aga inst a resident

defendant and a nonresident defendant but who is in the
Philippines, both of whom are principal defendant s, the
venue may be laid eit her where the resident defendant
r esides or wher e the no nr e s id e n t de fe nd a n t may be
found, as aut horized by Sec. 2 of this Rule, but with an
addit ional a lt er nat ive venue, i.e., the residence of any of
the principal plaint iffs, pur sua nt to Secs. 2 and 3.
It will be observed t hat when t here is more t ha n one
defendant or plaint iff in t he case, the residences of the
pr incipal par t ie s should be t he basis for det er min in g
the proper venue. Ot herwise, the purpose of the Rule
would be defeated where a no minal or formal part y is
impleaded in t he act ion since the lat t er would not have
the degree of int erest in the subject of the action which
would war r ant and ent ail the desirably active part icipat ion
expected of lit igant s in a case.
121
RUL E 4 R E M E D I A L LA W C O M P E N D I U M SEC . 3
2. Sec. 4 of the former Rule provided t hat "(w)hen

improper, venue is not objected to in a motion it is deemed
waived." Correlat ively, Sec. 5 of Rule 16 provided t hat
"(a)ny of the grounds for dismissal provided for in t his
r ule, except impr o pe r venue, may be pleaded as an
affir mat ive defense, and a preliminar y hear ing may be
had t hereon as if a motion to dismiss had been filed."
The aforesaid Sec. 4 of the former Rule has been
deleted, and Sec. 5 of Rule 16 correspondingly modified,
in these revised Rules. There does not appear to be any
cogent reason to single out impr oper venue from the
var ious preliminar y objections t hat may be raised against
a complaint , and require t hat it may be raised only in a
mot ion to dis miss UNDE R pain of it s being considered
waived for failure to do so. It is ent irely possible t hat
such object ion wa s not i m me d iat e l y d is cer nib le bu t
became appar e nt only at the t ime t he defendant pr epar ed
his answer or t hat , for any other reason, he was not t hen
in a posit ion to file a motion to dismiss.
Under t hese revised Rules, t herefore, the ground of
improper venue is placed on t he same footing as the other
grounds for a mot ion to dismiss enu mer at ed in Sec. 1 of
Rule 16 and is ent it led to the same considerat ions in t hat,
if it is not raised in a motion to dismiss, it may likewise be
alleged as an affir mat ive defense in t he answe r for a
preliminar y hear ing t hereon. At all event s, it is likewise
subject to the same sanct ion provided in Sec. 1, Rule 9
t hat if it is not pleaded as an objection eit her in a motion to
dismiss or in the answer, it is deemed waived.
3. . Wher e the pla i nt i f f is a no n r e s i d e n t of

the P hilippines but is per mit t ed to sue here (as in the
case of a foreign corporat ion wit h the requisit e license
under Sec. 123 of the Corporat ion Code), t hen the venue
is the place wher e the defendant resides, or, in real
act ions, where the real propert y or par t thereof is
sit uat ed. This is proper since the alt er nat ive venue
grant ed to plaint iffs
122
RUL E 4 VENU E O F ACTIO N S SE C . 4
is not available to said corporat ion (see Time, Inc. vs.

Reyes, L-28882, May 31, 1971, involving a suit against
a foreign corporat ion).
4. . Where, on t he ot her hand, i t is the

defendant who is a nonresident and is not found in the
Philippines, civil act ions are proper only when the
act ion affects the p e r s o na l s t a t u s o f the p la i nt i f f o r
p r o p e r t y o f the defendant, in which case Sec. 2
det er mines the venue. See Sec. 15, Rule 14 r egar ding
service of summo n s in these cases.
5. . An except io n to the gener a l rules on venue

is found in civil act ions for damages in case of libel,
whet her a criminal act ion t herefor has been filed or not,
as special rules of venue are provided in Art. 360 of
the Revised Penal Code, as last amended by R.A. 4363.
Said venue provis io ns apply to bot h r e s id e nt s and
no nr e s id e nt s , as su m i n g t hat jur is d i ct io n over the
lat t e r ha s been acquired (Time, Inc. vs. Reyes, et al.,
supra).
Sec . 4. When Rule not applicable. — Th i s Ru l e

shall not app l y —
(a) In t h os e case s wh e r e a sp eci fi c rule or law
p rovi d e s o t h e rw i s e ; or
(b) Wh er e the p a rt i e s hav e vali d l y agree d in
w r i t i n g b e f o r e the f i l i n g o f the a c t i o n o n the
e xc lu si v e ven u e thereof. (3a, 5a)
NO TES
1. Sec. 4(b) enunc iat es a clarification of the rule

regarding st ipulat io ns of the part ies on venue. It requires
a valid wr it t en agr eement executed by the part ies before
the filing of the act ion. Accordingly, the provision in the
former Sec. 3 of t his Rule to the effect t hat "(b)y wr it t en
agreement of the part ies the venue of an action may be
changed or t r ans fer r ed from one province to anot her "
123
RUL E 4 R E M E D I A L LA W C O M P E N D I U M SE C . 4
has been eliminat ed.

To be binding, the part ies must have agreed on the
exclusive nat ur e of the venue of any prospect ive action
bet ween t hem. This adopts the doctrines laid down by
the Supreme Court requiring t hat, to avoid the general
rules on venue, the agreement of the part ies t hereon must
be restrict ive and not permissive. Those decisions are set
out hereunder by way of illust rat io ns, aside from other
decisional rules on venue.
2. It is fundament al in t he law governing venue of

act io ns t hat the s it u s i s fixed to at t a i n the gr eat es t
co nvenie nce possible to the l it ig a nt s by t ak in g into
considerat ion the maximu m accessibilit y to t hem of the
court s of just ice (Koh vs. CA, et al, L-40428, Dec. 17,
1975). Venu e in p e r s o n a l a c t io n s i s fixed for the
convenience of the plaint iff and his w it nes se s and to
promot e the ends of just ice. Where the contract, subject
of the suit, was executed at the t ime when both plaint iff
and defendant had t heir business addresses in the City of
Manila and cont ained a proviso t hat all actions on said
c o nt r a c t "may be br o u g h t i n an d s u b m i t t e d t o the
jur isdict io n of the proper court s in the City of Manila,"
but at the t ime of suit t hereo n all t he p art ies had t heir
respect ive offices or residences wit hin the jur isdict io n of
the Province of Rizal, the act ion t hus inst it ut ed in the
Court of First Inst ance of Rizal should not be dismissed
o n t he g r o u n d o f i m p r o p e r ve nu e as , U N D E R suc h
cir cumst ances, the ends of just ice can not be served or
promot ed by confining the sit us of the action in Manila
(Nicolas vs. Reparations Commission, L-28649, May 21,
1975; see also Capati vs. Ocampo, L-22742, April 30,
1982).
3. . The court may declare agr eement s on venue

as co nt r ar y to public policy i f such st ipu lat io n
unjust ly denies a part y a fair opport unit y to file suit in
the place des ig nat e d by the Rules. The court shal l
t ak e int o
124
considerat ion t he economic condit ions of the part ies, the

pract ical need to avoid nu mer o us suit s filed against the
defendant in var ious part s of the country and the peculiar
cir cumst ances of the case (Hoechst Philippines, Inc. vs.
Torres, et al, L-44351, May 18, 1978).
4 . Inr c o n t r a c t s o f a d h e s io n , t he r ul e i s t ha t
ambiguit ies t her e in are to be const rued against the part y
who caused it. If the st ipulat io ns are not obscure and
leave no doubt on the int ent io n of t he part ies, the lit eral
mea ning of the st ipu lat io n s mus t be held cont rolling
(Lufthansa German Airlines, et al. vs. CA, et al.,
G.R. No. 91544, May 8, 1992; RCBC vs. CA, et al.,
G.R. 133107, Mar. 25, 1999). Co nt r ac t s of ad hes io n
are not pr o hib it e d , bu t the fact ual c ir cu ms t a nc e s of
each case mus t be carefully scr ut inized to det er mi ne the
respect ive claims of the par t ies as to their efficacy (see
National Dev. Co. vs. Madrigal Wan Hai Lines Corp., G.R.
No. 148332, Sept. 30, 2003).
T hus , in c o nt r a ct s invo lving p a s sa g e t icket s , a
condit ion pr int e d a t the back t her eo f t hat all act ions
arising out of t hat cont ract of carriage can be filed only in
a part icular province or city, to the exclusion of all ot hers,
was declared void and unenforceable due to the st at e of
the shipping indust r y. The Court noted t hat the acut e
short age of int er- is land vessels could not provide enough
ac co m mo dat io ns for plaint iffs to t r ave l to t he venue
indicat ed, aside from the fact t hat the passenger s did not
have t he o p p o r t u nit y to exa min e the fine pr in t providing
for such venue (Sweet Lines, Inc. vs. Teves, etc., et al.,
L-37750, May 19, 1978).
In a s u b s e q u e n t cas e invo lving 6 s u b s c r i p t io n
co nt r a ct s for cellu la r t e le p ho ne s each cover ed by a
mobiline service agr eement , the subscr iber challenged
the provis io ns in said agr e e me nt s providing t hat the
venue for all su it s ar is ing t her efro m shall be in t he
proper court of Makat i, with the subscr iber waiving any
125
other venue. The Supreme Court sust ained the validit y

of t hat venue st ipulat ion, considering t hat the subscr iber
has sufficient opport unit y to go over such st ipulat io n
dur ing each t ime he signed those agreement s, as well as
i n the s u b s e q u e n t s u bs c r ip t io n s h e ac qu ir e d while
r e m a i n i n g as a s u bs c r i be r for some t im e (Pilipino
Telephone Corp. vs. Tecson, G.R. No. 156966, May 7,
2004; cf. DBP vs. National Merchandising Corp., L-22957
& L-23737, Aug. 31, 1971).
5. A st ipulat ion as to the venue of a prospective action

does not preclude t he filing of the suit in the residence of
the plaint iff or t hat of the defendant under Sec. 2 of t his
Rule, in the absence of qualifying or restr ict ive words in
the agr eement t hat would indicate t hat the venue can not
be any place ot her t ha n t hat agreed upon by the part ies
(Polytrade Corp. vs. Blanco, L 27033, Oct. 31, 1969),
especially where the venue st ipulat io n was imposed by
the plaint iff for its own benefit and convenience (Eastern
Assurance & Surety Corp. vs. Cui, et al., infra).
6. The former Court of Fir st I nst ance of Quezon

City had jur isdict io n where the defendant electric cor•
porat ion has its principal office in Quezon City, alt hough
t he acts complained of wer e co mmit t ed by its elect ric
plan t in Dagu pa n Cit y, since cor porat e decisio ns are
made in Quezon City and the employees in Dagupan City
merely carr y out said orders, hence the acts sought to
b e r e s t r a i n e d ar e be in g c o m m it t e d i n Quezo n Cit y
(Dagupan Electric Corp. vs. Paho, et al., L-49520,
Jan. 28, 1980; cf. Limjap vs. Animas, et al., G.R.
No. 53334, Jan. 17, 1985; Olongapo Electric Light &
Power Corp. vs. National Power Corp., et al, L-24912,
April 9, 1987).
7. . In act ions involving domest ic

co rpor at io ns, for p u r p o s e s of ve nu e , wha t i s
c o nt r o l l i n g i s t he locat ion of its principal place of
bus iness st at ed in its art icles of incorporat ion, not the
branch office or place of
126
business t hereof (Hyatt Elevators and Escalators Corp.

vs. Goldstar Elevators Phils., Inc., G.R. No. 161026
Oct. 24, 2005).
8. Where the chat t el mortgage had been fully paid,

but the mort gagee st ill sent a t elegram demanding pay•
ment from the mort gagor, the venue for the lat t er' s action
for damages is not governed by the venue st ipulat io n in
the chatt el mort gage since the suit is not based on said
contract but on defendant ' s act of sending the t elegram
(Zoleta vs. Romillo, G.R. No. 58080, Feb. 15, 1982).
9. Since a t hir d - part y complaint is but ancillary to a

main action, the rules on jur isdict io n and venue do not
apply to it. Thus, a t hir d -part y complaint yields to the
jur isdict io n and venue of t he main act ion even if said t hir d-
part y complaint is based on a separat e agr eement which
specifies a different venue for suit s arising from said
agr ee me nt (Eastern Assurance & Surety Corp. vs. Cui, et
al., G.R. No. 54452, July 20, 1981).
10. Where only one of the two defendant s, both being

indispensable part ies, filed a motion to dismiss for im•
proper venue, while the ot her filed his answer wit hout
raising such object ion, t he hear ing should not proceed
aga ins t the la t t e r unt i l the object ion r a is e d b y the former
shall have been resolved (Punzalan vs. Vda. de Lacsamana,
G.R. No. 55729, Mar. 28, 1983).
11. . The st ipulat io n in a contract of affreight ment
to the effect t hat said agreement "shall be governed by
and const rued in accordance wit h S ingapore Law, and
all d isput es ar is in g ( t ) her e UN DE R shall be subject
to the exclusive jur isd ict io n of the High Court of
Singapore" refers to the forum of the act ions
cont emplat ed t herein. It may not be declared invalid on
the theory t hat such agreement would divest Philippine
courts of jur isdict ion by agr eement of the partieB, since
what has been agreed upon was merely the venue of the
action which may legally
127
be done. However, since the defendant did not timely

raise t hat issue but filed two motions to lift the writ of
pr e li minar y a t t a c h me n t and a count er bo nd t herefor,
before it event ually filed a motion to dismiss on the ground
of improper venue, such objection has been waived and
the trial court erred in grant ing the motion and dismissing
t he case (Phil. International Trading Corp. vs. M.V.
Zileena, et al., G.R. No. 102904, Oct. 30, 1992).
12. The foregoing co nsiderat ions no t wit hst and ing,

the Supreme Court, to avoid a miscarr iage of just ice, has
the power to order a change of venue or place of t rial in
civil or criminal cases or ot her judicial proceeding (see
Sec. 5[4J, Art. VIII, 1987 Constitution; Magsaysay vs.
Magsaysay, et al, L-49847, July 17, 1980).
13. . Because of the super vent io n of R.A. No. 7691

{Appendix N) which, inter alia, amended the jur isdict io n
of the regular t rial court s in real act ions, pending final
action on the pr esent revised Rules, the S upreme Court
approved in advance and pro mulgat ed the pr esent Rule 4
to t ak e effect on Augus t 1, 1995, issuing t her efor its
Ad minist r at ive Circular No. 13-95 on Jun e 20, 1995.
128
RULE 5
UNIFO RM PRO CEDURE IN TRIAL COURTS
S ec t i o n 1. Uniform procedure. — The p ro ce d u r e

in the M u n i ci p a l Trial Cou rts sh all be the sam e as
in the R e g i o n a l Tri al Cou rt , e xc e p t (a) w h e r e a
p a rt i cu l a r - p ro vi si o n e xp re s s l y o r i m p li e d l y ap p li e s
onl y t o e i t h e r o f sai d cou rt s , o r (b) i n ci vi l case s
gov e rn e d b y the Rul e o n S u m m a r y Pro ced u re , (n)
Sec . 2. Meaning of terms. — The t er m "M uni cip al

Trial Cou rt s" as use d in t h es e Ru le s shall i n clu d e
M et rop oli t an Trial Cou rt s, M un i ci p al Trial Cou rt s
in Ci t i es , M u n i c i p a l Tri al Cou rt s , an d M u n i c i p a l
Ci rcuit Trial Cou rt s, ( la )
NO TES
1. The former Rule 6 of t hese Rules was expressly

repealed by the I nt er im or Tr ansit io nal Rules and Guide•
lines promulgat ed by t he S upr eme Court effective upon
the implement at ion of B.P. Blg. 129. Par. 9 of said int erim
rules furt her provided t hat "(t)he procedure to be observed
in met ropo lit an trial courts, municipal trial courts and
municipal circuit trial courts, in all cases and proceedings,
whet her civil or criminal, shall be the same as t hat to be
observed in the regional trial courts." This is now provided
in Sec. 1, wit hexcept ions.
2. It has been held t hat int er pleader (Rule 62) is
available in inferior court s alt hough they are not bound
to follow strict ly the procedure therefor as set out for the
t he n Co ur t s of F ir s t I ns t a nc e (Makati Dev. Co. vs.
Tanjuatco, L-26443, Mar. 25, 1969). It is submit t ed t hat
since t he procedure in t he present Regional Trial Court s
is now applicable to the inferior courts, while the lat t er
129
can try int er p leader act ions, t hey mus t perforce now
observe the procedure as provided for the Regional Trial
Courts.
3. Under Sec. 22 of B.P. Blg. 129 and Par. 21(a) of
the I nt er im Rules and Guidelines, all cases decided by
the inferior courts may be appealed to the Regional Tria l
Court s. I t has been held t hat such provisions are broad
e no ug h t o co ver j u d g m e n t s b y d e fa u lt , s u m m a r y
ju d g me nt s and ju dg me nt s on t he plea d ings r ender e d
by infer ior co urt s. The co nt r ar y do ct r ines in Luzon
Rubber & Manufacturing Co. vs. Estaris, et al. [L-31439,
Aug. 31 , 1973] and reit er at ed in Stratchan, et al. vs. CA,
et al. [L-23455, Jan . 27, 1985] are t hereby deemed over•
ruled (Guanson vs. Montesclaros, et al., G.R. No. 59330,
June 28, 1983). The co nt ro ver sy in t he pas t on t his
point (see Vda. de Hoyo-a, et al. vs. Virata, et al., G.R.
No. 71171, July 23, 1985), which has now been set at
rest, was due to t he fact t hat , formerly, only default
judg ment s of the Court s of First Inst ance were appealable
under the t hen Sec. 2 of Rule 41 .
4. Where the lower court had no jur isdict ion over

the case, the Regio nal Tr ia l Co urt does not acqu ir e
appe llat e jur isd ict io n. However, while t he appe l la n t
may assail such jur isdict io n on appeal, the part ies may
submit to the original jur isdict io n of the Regional Trial
Court and said court can proceed to try the case (Alvir
vs. Vera, L-39338, July 16, 1984). For the p r e s e n t
procedural rule, see Sec. 8, Rule 40.
5. Formerly, t he decisions of the t hen Court s of First

Inst ance, in cases appealed to t hem from the decisions of
the inferior courts in the exercise of the lat t er' s original
jur isdict io n, were appealable to the S upr e me Court by
cert iorar i under Rule 45 if the only issue was w het her
the conclusion of the t hen Court of Fir st I nst ance was
in consonance wit h law and jur is pr u de n ce, hence t he
issue is consequent ly a purely legal quest ion. Where,
130
RUL E 5 U N I F O R M P R O C E D U R E I N T R I AL C O U R T S SE C . 2
however, t he issue was w het her the findings of fact of

said Co urt of F ir s t I nst a nc e were sup po r t e d by sub•
st ant ial evidence, or such quest ion was raised toget her
with a purely legal issue, a pet it ion for review should be
brought to the Court of Appeals in the form prescribed in
its Resolut ion of August 12, 1971. It was opined t her ein
t hat a lt ho ugh Sec. 22 of B.P. Blg. 129 abando ned t he
" s u b s t a nt ia l evide nce" rule for mer ly pro vided
UNDE R
R.A. 6031 in det er mining whet her to give due course to
the petit ion, the quest ion of where to file said pet it ion,
as above st at ed, has not been affected by B.P. Blg. 129
(Torres, et al. vs. Yu, et al, L-42626, Dec. 18, 1982; cf.
Mania vs. Vda. de Segarra, et al, L-48257, Aug. 24, 1984).
Under t hese revised Rules, appeals from a decision
of the Regional Trial Court rendered in the exercise of its
appellat e jur isd ict io n shall be bro ught to the Court of
Appeals regardless of the issues involved. Thus, Sec. 2
of Rule 42 requir es t hat in such appea l the pet it ion for
review to the Court of Appeals must set forth, inter alia,
"the specificat ion of the errors of fact or law, or both,
allegedly commit t ed by the Regional Trial Court."
6. Wit h respect to the syst em of amicably sett ling

disput es at the barangay level and which, in proper cases,
is a pr er equis it e for the inst it ut io n of an action in court
under P.D. 1508, generally referred to as the Kataru-
ngang Pambarangay decr ee, see not es UNDER Sec. 1,
Rule 123. Sec. 2 of said P.D. 1508 provided for the cases
wit hin the jur isdict io n of t he lupon, while Sec. 3 thereof
d e t e r m i n e d the ve nu e of the p r o c e e di ng s , i.e., t he
barangay wher e the pr o ceedings sha ll be co nduct ed
(Agbayani vs. Belen, et al, G.R. No. 65629, Nov. 24, 1986).
See, however, the corresponding provisions of the Local
G o v e r n m e n t Code of 1991 (R.A. 7160) r e p r o d u c e d
t her eunder.
7. Excepted from the uniform procedure as st at ed
in this Rule are the cases covered by the Rule on Sum-
131
mar y Procedure promulgat ed by the Supreme Court for

inferior courts effective August 1, 1983, and last revised
wit heffectivity on November 15, 1991, which wit h respect to
civil cases provides as follows:
"P ur suant to Section 36 of the Judic iar y Reorga•
nizat ion Act of 1980 ( B . P . Blg. 129) and to achieve
an expedit ious and inexpensive det er minat io n of the
cases referred to herein, the Court Resolved to pro•
mu lgat e the following Revised Rule on S u mma r y
Procedure:
I.
Applicabilit y
SECTION 1. Scope. — This rule shall govern t he
summar y procedure in the Met ropolit an Trial Court s,
the Municipal Trial Court s in Cit ies, the Municipa l
Trial Courts, and the Municipal Circuit Trial Court s
in the following cases falling wit hin t heir jurisdict ion:
A. Civil Cases:
(1) All case s of forcible e nt r y an d u n la w fu l
det ainer irrespect ive of the a mo unt of damages or
unpaid r ent als sought to be recovered. Where attor•
ney's fees are awarded, the same shall not exceed
t went y t ho usand pesos (1*20,000.00).
(2) All ot her civil cases, except probat e proceed•
ings, where the total amo unt of the p la int iffs claim
does not exceed t en t ho usan d pesos (F10.000.00),
exclusive of int er est and costs.
X X X
II.
Civil Cases
SEC. 3. Pleadings. —
A. Pleadings allowed. — The only p le ad in g s
allowed to be filed are the co mplaint s, compulsory
132
RUL E 5 U N I F O R M P R O C E D U R E I N TRI AL C O U R T S SE C . 2
count erclaims and cross-claims pleaded in the answer,

and the answer s t heret o.
B. Verification. — All pleadings shall be verified.
SEC. 4. Duty of court. — After the court deter•
mines t hat the case falls under summar y procedure, i
t may, from an e xa m i n a t io n of the a l le gat io n s
t herein and such evidence as may be attached t hereto,
d is m is s the case o ut r ig h t on any of the gr o unds
appar en t t herefrom for the dismissal of a civil action.
If no ground for dismissal is found, it shall forth•
wit h issu e s u m mo n s which sha l l st at e t hat the
su mmar y procedure under this Rule shall apply.
SEC. 5. Answer. — Wit hin ten (10) days from
ser vice of s u m mo ns , t he defe nda nt shall file his
answer to the co mplaint and serve a copy thereof on
the plaintiff. Affirmat ive and negat ive defenses not
pleaded t her ein shall be deemed waived, except for
lack of jur isdict io n over the subject mat t er. Cross-
claims and compulsory count erclaims not assert ed in
the answer shall be considered barred. The answer
to count er cla ims or cross-claims shall be filed and
served wit hin ten (10) days from service of the answer
in which they are pleaded.
SEC. 6. Effect of failure to answer. — Should the
defendant fail to answer the complaint wit hin the
period above provided, the court, motu proprio, or on
motion of the plaintiff, shall r ender judgment as may
be war r ant ed by the facts alleged in the complaint
and limit ed to what is prayed for t herein: Provided,
however, t hat the court may in its discretion reduce
the amount of damages and attorney' s fees claimed
for being excessive or otherwise unconscionable. This
is w it hout prejudice to the applicabilit y of Section 4,
Rule 18 of the Rules of Court, if t here are two or more
defendant s.
133
SEC. 7. Preliminary conference; appearance of

parties. — Not later t han t hirt y (30) days after the
last answer is filed, a preliminar y conference shall be
held. The rules on pre-trial in ordinar y cases shall
be applicable to the preliminar y conference unless
inconsist ent with the provisions of t his Rule.
The failure of the plaint iff to appear in the pre•
liminar y conference shall be a cause for the dismissal
of his complaint . The defendant who appear s in the
absence of the plaint iff shall be ent it led to judgment
on his count er cla im in accordance wit h Sect ion 6
hereof. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plain•
tiff shall be ent it led to judgment in accordance wit h
Section 6 hereof. This Rule shall not apply where
one of two or more defendant s sued under a common
cause of action who had pleaded a common defense
shall appear at the preliminar y conference.
SEC. 8. Record of preliminary conference. —
Wit hin five (5) days after the t er minat io n of the pre•
liminar y conference, t he court shall issue an order
st at ing the mat t er s t aken up t herein, including but
not limited to:
(a) Whet her the part ies have arrived at an ami•
cable sett lement , and if so, the t er ms thereof;
(b) The st ipulat io ns or admissions ent er ed into
by the part ies;
(c) Whet her, on the basis of the pleadings and
the st ipulat io ns and admissions made by the part ies,
j u d g m e n t ma y be r e nd e r e d w it ho u t the need of
fur t her pro ceedings, in which event t he judg me n t
sha l l be r e n d e r e d w it h in t h ir t y (30) day s from
issuance of the order;
(d) A clear specificat ion of mat er ia l facts which
remain cont rovert ed; and
134
RUL E 5 U N I F O R M P R O C E D U R E I N T RI AL C O U R T S
(e) Such ot her mat t er s int ended to expedit e the

disposit ion of the case.
SEC. 9. Submission of affidavits and position
papers. — Wit hin ten (10) days from receipt of the
order ment io ned in the next preceding section, the
part ies shall submit t he affidavits of t heir wit nesses
and ot her evidence on the factual issues defined in
the order, t oget her wit h t heir position papers set t ing
forth the law and t he facts relied upon by t hem.
SEC. 10. Rendition of judgment. — Wit hi n
t hirt y (30) days aft er receipt of the last affidavits and
posit ion paper s, or the expirat ion of the period for
filing the same, the court shall render judgment .
However, should the court find it necessar y to
clarify cert ain mat er ia l facts, it may, during the said
period, issue an order specifying the m at t er s to be
clarified, and require t he part ies to submit affidavits
or ot her evidence on t he said mat t er s wit hin ten (10)
days from receipt of said order. Judgment shall be
r ender ed wit hin fifteen (15) days after the receipt of
the last clarificatory affidavits, or the expirat ion of
the per iod for filing the same.
The court shall not resort to clar ificatory pro•
cedure to gain t ime for the rendit ion of the judgment .
X X X
IV.
Common Provisions
SEC. 18. Referral to Lupon. — Cases r equir ing
referral to the Lupon for conciliation under the pro•
visions of Pr esident ia l Decree No. 1508 where t here
is no showing of compliance wit h such requirement ,
shall be dis missed w it hout prejudice, and may be
r evived only aft er such r e q u i r e m e n t sha ll have
been complied wit h, x x x.
135
SEC. 19. Prohibited pleadings and motions. —

The following pleadings, motions, or pet itions shall
not be allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint x x x except
on the ground of lack of jur isdict ion over the subject
matt er, or failure to comply with the preceding section;
(b) Motion for a bill of part icular s;
(c) Motion for new t rial, or for reconsiderat ion of
a judgment , or for reopening of trial;
(d) Pet it ion for relief from judg ment ;
(e) Motion for extension of t ime to file pleadings,
affidavits or any other paper;
( 0 Memoranda;
(g) Pet it io n for cert iorar i, ma nd a mu s , or pro•
hibit ion against any int er locut ory order issued by
the court;
(h) Motion to declare t he defendant in default;
(i) Dilatory mot ions for post ponement ;
0 ) Reply;
(k) Third-part y co mplaint s;
(1) I nt er vent io ns.
SEC. 20 . Affidavits. — The affidavits requir ed
to be submit t ed under t his Rule shall st ate only facts
of direct perso nal knowledge of the affiants which are
a d m i s s i b l e i n e v id e nc e , an d sha l l sho w t he i r
compet ence to testify to the mat t er s st at ed t herein.
A violat ion of t his r equir ement may subject the
part y or the counsel who submit s the same to dis•
ciplinar y act ion, and shall be cause to expunge the
inad miss ible affidavit or port ion t hereof from the
record.
SEC. 21 . Appeal. — The judg ment or final order
shall be appealable to the appropr iat e regional t rial
court which shall decide the same in accordance wit h
Section 22 of Bat as P amba nsa Blg. 129. The decision
of the regional t rial court in civil cases governed by
t hi s Rule, inc lud ing forcible ent r y and unlaw fu l
136
RUL E 5 U N I F O R M P R O C E D U R E I N T RI AL C O U R T S SE C . 2
det ainer , shall be immediat ely executory, wit ho ut

pr ejudice to a fur t her appeal t hat may be t ake n
t herefrom. Sect ion 10 of Rule 70 shall be deemed
repealed.
SEC. 22 . Applicability of the regular rules. —
The r egula r procedur e prescr ibed in t he Rules of
Court shall apply to the special cases herein provided
for in a suppletory capacit y insofar as they are not
inco nsist ent herew it h.
SEC. 23 . Effectivity. — This revised Rule on
S u m ma r y P ro cedur e shall be effective on Novem•
ber 15, 1991."
8. New court rules apply to pending cases only

with reference to proceedings t herein which t ake place
after the dat e of t heir effectivity. They do not apply to
the ext ent t hat in the opinion of the court t heir applica• tion
would not be feasible or would work injust ice, in which
event t he former pro cedur e shall apply. T hus, where the
applicat ion of the Rule on S ummar y Procedure will mean
the dismissal of the appeal of the part y, the same should
not apply since, after all, the procedure they availed of was
also allowed UNDE R the Rules of Court (Laguio, et al. vs.
Garnet, et al., G.R. No. 74903, Mar. 21, 1989).
9. While Sec. 6 (now, Sec. 7) of the Rule on Sum•

mar y P r o c e d u r e ma k e s a p r e l i m i n a r y co nfe r e nc e
mandat ory, it does not logically follow that the absence
thereof would necessarily render nugatory the proceedings
had in the court below. A preliminar y conference under
this Rule is akin and similar to a pre-trial under Rule 20,
both provisions being essent ially designed to promot e
amicable set t lement or to simplify t he t rial. Proceedings
conducted wit hout pre-trial or a legally defective pre-tria l
have been voided because eit her of the part ies t heret o
suffered subst ant ial prejudice t hereby or were denied due
process. Thus, unless t here is a showing of subst ant ia l
137
RUL E S R E M E D I A L LA W C O M P E N D I U M
prejudice caused to a part y, the inad ve r t ent failure to

ca le nd a r for an d co nduct a pr e - t r ia l or pr e l i m i n a r y
conference cannot render the proceedings illegal or void
ab initio. A part y' s failure to object to the absence of a
preliminar y conference, despit e opport unit y to do so, is
deemed a waiver of the r ight t her et o, especially where
the part y had already submit t ed to the jur isd ict io n of
the t rial court (Martinez, et al. vs. De la Merced, et al.,
G.R. No. 82039, June 20, 1989).
10. E xcep t in cases co ver ed by the a g r i c u lt u r a l
t e na nc y laws o r whe n the law o t he r wi s e e xpr e s s l y
pr o vides, all act io ns for forcible e nt r y an d unlaw f u l
det ainer, irrespect ive of the amount of damages or unpaid
r ent als sought to be recovered, are now governed by t he
su mmar y procedure provided in revised Rule 70.
138
PRO CEDUR E IN REGIONAL TRIAL COURTS
RULE 6
K IND S OF PLE AD IN G S
S ec t i o n 1. Pleadings defined. — Ple ad i n g s are the

w ri t t e n s t a t e m e n t s o f the r e s p e c t i v e c l a i m s an d
d e f en se s o f the p a rt i e s s u b m i t t e d t o the Cou rt for
ap p rop ri a t e j u d g m e n t , (la )
Sec . 2. Pleadings allowed. — The clai ms of a party

ar e a s s e rt e d in a c o m p l a i n t , c o u n t erc l a i m , cros s -
claim , thir d (fou rth , e t c.) -p a rt y c o mp la i n t o r
c o m p l a i n t - i n - i n t e rv e n t i o n .
The d e fen s e s of a party are al leged in the an swe r
to the p l e a d i n g a s s e rt i n g a clai m agai n s t him.
An a n s w e r ma y be re s p o n d e d to by a rep ly, (n)
NOTE
1. In a broad sense, the term "pleadings" includes

all papers filed, excluding evident iar y m at t er s, from the
complaint down to the judgment . Document s att ached to
the pleadings and made a par t t hereof are considered
evidence and also par t of the pleadings (Asia Banking
Corporation vs. Olsen & Co., 48 Phil. 529). A bill of
p a r t ic u l a r s c o n s t it u t e s par t of the p lead in g t hat i t
supple ment s (Sec. 6, Rule 12). A covering let t er for a
pleading is not par t of the lat t er (Clorox Co. vs. Director
of Patents, L-19531, Aug. 10, 1967).
Sec. 3 . Complaint. — The c o m p l a i n t i s the p lead i n

g a l l egi n g the p l a i n t i f f s cau s e o r c au se s o f act ion. The
n ame s an d re s i d e n c e s of the plainti ff and
d efen d an t mus t be stated in the comp lain t. (3a)
139
RUL E 6 R E M E D I A L LA W C O M P E N D I U M S E C S . 4- 5
NOTES
1. The provisions of t his sect ion wit h regard to a

complaint are also true with and are applicable to other
init iat ory pleadings, as well as to petit ions filed in the
trial or appellat e courts, except t hat, in the lat t er case, it
is the act of the lower court which is complained of t hat
has to be alleged, inst ead of a cause of action as technically
underst ood.
2. The jurisdict ion of the court and the nat ure of the
action are det er mined by the aver ment s in the complaint .
The prayer for relief is not controlling on the court and
is merely advisory as to the nat ur e of the action, as it is
the a ver me nt s in the complaint which control. See notes
under Sec. 2, Rule 7.
Sec . 4. Answer. — An a n s w e r is a p l e a d i n g in
wh i c h a d e f e n d i n g p art y set s forth hi s d e f e n s e s .
(4a)
Sec. 5 . Defenses. — D e f e n s e s ma y e i t h e r be
n eg at i v e or affi rmat ive.
(a) A n egat i v e d e fen s e i s the sp eci fi c d en i a l of
the mat e ri a l fact or fact s al lege d in the p l e a d i n g of
the c l a i m a n t e s s e n t i a l t o hi s cau s e o r c a u s e s o f
action .
(b) An affi rmati ve d ef en s e is an al l egat i o n of a
ne w mat t e r wh i ch , whi l e h yp o t h e t i ca l l y a d m i t t i n g
the m a t e r i a l a l l e g a t i o n s i n the p l e a d i n g o f the
c l a i m a n t , w o u l d n e v e r t h e l e s s p r e v e n t o r ba r
re co ve r y by him. The affi rmat ive d ef en se s i n c lu d e
f rau d , s t a t u t e o f l i m i t a t i o n s , r e l e a s e , p a y m e n t ,
i l l e g a l i t y , s t a t u t e o f fra u d s , e s t o p p e l , forme r
re co ve ry , d i s c h a rg e i n b an k ru p t cy , and an y oth e r
mat t e r by wa y of c o n f e s s i o n an d a v oi d a n c e . (5a)
140
RUL E 6 KIND S O F PLE ADIN G S E C S . 4- 5
NOTE S
1. Section 5(a) defines a "negat ive defense" as the

specific denial of the mat er ial allegat ions in the complaint.
A denial is not specific jus t because it is so qualified
(Agton vs. CA, et al., L-37309, Mar. 30, 1982), and t his is
especially t rue where a bla nket denial is made of all the
aver ment s of the complaint inst ead of dealing part icular ly
witheach. Such a ge ner a l denia l will be deemed an
admission of t he a ver me nt s in the complaint .
2. To be considered a specific denial, Rule 8 provides:

"Sec. 10. Specific denial. — The defendant must
specify each mat er ia l allegat ion of fact the t r ut h of
which he does not admit and, whenever pract icable,
shall set forth the subst ance of the mat t er s upon
which he r elies to suppo r t his d e nia l. Wher e a
defendant desires to deny only a part of an aver ment ,
he shall specify so much of it as is true and mat er ial
an d s ha l l den y o nly the r e m a i n d e r . Wher e a
d e fe nd a n t i s w it ho u t kno wledge or in fo r mat io n
sufficient to form a belief as to the t rut h of a mat er ial
aver ment made in t he co mplaint , he shall so st at e,
and t his shall have the effect of a denial."
3. Sec. 5(b) defines and illust rat es the so-called
affirmative defenses. The enumer at io n is not exclusive.
Thus, tea judicata (Fernandez vs. De Castro, 48 Phil. 123),
ultra Mroa aoto of a oorporation, or lack of aut hor it y of a
person assuming to act for the corporation (Ramirez vs.
Orientalist Co., 38 Phil. 634), laches (Gov't of the P.I. vs.
Wagner, et al., 49 Phil. 944), and unc o nst it ut io na l it y
(Santiago vs. Far Eastern Broadcasting Co., 73 Phil. 408)
are affir mat ive defenses which should be specifically
pleaded. Fur t her mo r e, if no motion to dismiss had been
filed, any of the gr o und s t herefor may be r aised as
affirmative defenses in the answer (Sec. 6, Rule 16).
141
Sec . 6. Counterclaim. — A c o u n t e rc l a i m is an y
clai m wh i c h a d e f e n d i n g party ma y hav e ag ai n s t
an op p osi n g party. (6a)
Sec . 7. Compulsory counterclaim.—A co mp u l so r y

c o u n t e rc l a i m i s on e wh i ch , b ein g cogn i zab l e by the
r e g u l a r c o u r t s o f j u s t i c e , a r i s e s ^ o u t ofj o r i s
c o n n e c t e d wi t h the t r a n s a c t i o n o r o c c u r r e n c e
c o n s t i t u t i n g the su b j e c t mat t e r o f the o p p o s i n g
p a rt y ' s c l a i m an d d o e s no t r e q u i r e fo r it s
ad j u d i c at i o n the p re se n c e o f t hi rd p art i e s o f wh o m
the Co u rt c a n n o t a c q u i r e j u r i s d i c t i o n . S u c h a
c o u n t e rc l a i m mus t b e wi t h i n the j u ri sd i ct i on o f the
Cou rt both as to the amou n t and the n at u r e thereof,
e x c e p t t h a t i n a n o r i g i n a l a c t i o n b e f o r e the
R e g i o n a l Tri al Cou rt , the c o u n t e r c l a i m ma y b e
con si d e re d c o mp u l s o r y rega rd le ss of the amou nt , (n)
NO TES
1. In Amer ican law from which we have derived t he

concept of a count erclaim, it is considered as in effect a
new suit in which the part y named as the defendant is
t he plaint iff and the plaint iff beco mes the defe nda nt
(Roberts Min. & Mill Co. vs. Schroder, CCA. Nev., 95 F.
2d 522). It is but anot her name for a cross-pet it ion (Clark
vs. Duncanson, 79 Okl. 180, 192 P. 806, 16 A.L.R. 450) or
is a subst it ut e for a cross-bill in equit y (Vidal vs. South
American Securities Co., CCA. N.Y., 276 F. 855). The
t erm is broader in meaning t ha n set-off or recoupment ,
and includes t hem both (Williams vs. Williams, 192 N.C.
405, 135 S.E. 39; Aetna Life Insurance Co. vs. Griffin,
200 N.C 251, 156 S.E. 515).
2. . A clar i fic at io n ha s been inco r po r a t e d in

the definit io n of a compulsor y co unt er cla i m by r easo n
of d iver ge nt views in t he pas t as to w het he r or not
the amount involved in t he count ercla im should be t aken
into
142
RUL E 6 KIND S O F PLE ADIN G S S E C S . 6- 7
account when such a count erclaim is pleaded in the Re•

gional Trial Court, in t he same manner as the rule on
ju r is d ict io na l a mo u n t r equir e d for a co mp la int filed
t herein. The pr ese n t for mulat io n make s i t clear t hat
such a count erclaim may be ent ert ained by the Regional
Trial Court regardless of the amount involved provided
that, in addit ion to the other r equir eme nt s, it is cognizable
by the r egular court s of just ice. Thus, for inst ance, a
claim ar is ing from a labor disput e, alt hough wit hin t he
jur isdict ional a mo unt provided for Regional Trial Court s,
may not be raised as a count erclaim t her ein as, under the
law present ly in force, the same should be filed in the labor
t ribunals or agencies. The same is t rue wit h respect to
other claims jur isdict io n over which is vested exclusively
in the quasi- judicial agencies.
3. . As t hu s clarified, count erclaims are classified

and dist inguished as follows:
A compulsory co unt er claim is one which arises out
of or is necessar ily connect ed wit h the t r ansact io n or
occurrence t hat is the su bje ct - mat t er of t he opposing
part y' s claim. If it is wit hin the jur isdict ion of a regular
court of just ice and it does not requir e for its adjudi•
cation the presence of t hird part ies over whom the court
cannot acquire jur isdict ion, it is barred if not set up in
the action (see Sec. 2, Rule 9). This is also known as a
"recoupment " (Lopez us. Glories 40 Phil, 26).
A permissive count erclaim does not arise out of nor
is it necessarily connected wit h the subje ct -mat t er of the
opposing part y' s claim. It is not barred even if not set up
in the act ion. This is also known as a "set-off (Lopez vs.
Gloria, supra).
4. Accordingly, even if the count erclaim arises out
of the subject - mat t er of the opposing part y' s claim but
it is not wit hin the jur isdict ion of the regular courts of
just ice, or it requires for its adjudicat ion the presence of
t hir d p a r t i e s over who m the Court canno t acqu ir e
143
jur isdict ion, it is considered as only a permissive counter •

claim and is not barred even if not set up in the act ion
(see also Sec. 2, Rule 9).
5. A count erclaim is, t herefore, compulsory if (a) it
arises out of, or is necessarily connected wit h, t he t rans •
action or occurrence which is the subje ct - mat t er of the
opposing part y' s claim; (b) it does not r equ ir e for its
adjudicat ion the presence of t hird part ies of whom the
court cannot acquire jurisdict ion; and (c) subject to the
qualificat ion on the jur isdict io nal a mo unt wit h regard to
co unt er cla ims raised in the Regional Trial Court s, the
court has jur isd ict io n to ent ert ain the claim. While a
number of crit eria have been advanced for the det er mi•
nat io n of w het he r t he co unt er cla i m is co mpulso r y or
per miss ive, the "one compelling t est of co mpulsor iness "
is the logical relat io nship bet ween t he claim alleged in
the complaint and t hat in the count erclaim, i.e., where
separ at e trials of each of t he respect ive claims would
involve a s u bs t a nt ia l duplicat io n of effort or t ime by
the part ies and the court s, as where t hey involve many
of t he same factual and/or legal issues (Quintanilla vs.
CA, et al., G.R. No. 101747, Sept. 24, 1997).
In Alday vs. FGU Insurance Corp. (G.R. No. 138822,
Jan . 23 , 2001), the S upr eme Court r eit er at ed the cr it er ia
in det er mining whet her a count erclaim is compulsory or
per miss ive, t hat is, whet her or not (I) the issues of fact
an d law r a is e d b y the c la i m an d c o u n t e r c l a i m ar e
essent ially t he same, (2) res judicata would bar a sub•
sequent suit or defendant ' s claim absent the compulsory
co unt er cla im rule, (3) subst ant ia l l y the same evidence
suppo r t or refut e the claim and the co unt er cla i m, or
(4) t here is a logical relat ion bet ween the claim and t he
co unt er cla im (cit ing Valencia vs. CA, et al. [263 SCRA
275J). See also Tan vs. Kaakbay Finance Corp., et al.,
G.R. No. 146595, June 20, 2003, and cases discussed
t herein.
144
RUL E 6 KIND S O F PLE ADIN G S S E C S . 6- 7
6. An aft er-acquired counterclaim is not barred, even

if t he same ar ises out of or is necessar ily connected wit h
the claim alleged in the complaint in t he previous case
but was not set up t herein, since Sec. 8 of Rule 11 provides
t hat a compulsory count erclaim "t hat a defending part y
has at the time he files his answer shall be cont ained
t herein" (Tiu Po vs. Bautista, G.R. No. 55514, Mar. 17,
1981).
7. . Where t he co unt ercla im, and t he same is

t rue with a cross-claim, was already in existence at the
time the defendant filed his answer but was not set up
t herein t hrough oversight , inad ver t enc e, or excusable
neglect, or when just ice so requir es, the same may be
set up by filing an a mended answer (Sec. 10, Rule 11).
Where said count erclaim or cross-claim mat ur ed after the
filing of the answer, t he defending part y can set it up
by filing a supple me nt al answe r or pleading (Sec. 9,
Rule 11). In eit her case, leave of court is required and
such pleadings must be filed before the rendit ion of the
judgment .
8. . A c o u nt e r c l a i m or cr o ss- c la i m nee d not

be answered if it is based on and inseparable from t he
very defense raised by t he opposing par t y as it will
merely r esult in said opposing part y plead ing the
same facts already raised in his former pleading
(Navarro vs. Bello, 102 Phil. 1019) or where the
count erclaim merely alleges the opposite of the facts in
the complaint (Ballecer vs. Bernardo, L-21766, Sept. 30,
1966). Thus, where t he count erclaims are only for
damages and attorney' s fees arising from the filing of the
complaint, the same shall be considered as special
defenses and need not be answered (see Worcester vs.
Lorenzana, 104 Phil. 234).
9. A plaint iff who chooses not to answer a compul•

sory count erclaim cannot be declared in default on such
count erclaim. Where t he complaint is for consolidat ion
because the period for redempt ion had expired and the
145
RUL E 6 R E M E D I A L LA W C O M P E N D I U M S E C S . 9 -1 0
count erclaim is for reformat ion on the ground t hat the

d o c u me n t wa s r eally a mo r t g ag e , the i n c o ns i s t e n t
allegat ions in the complaint st and as an answer to the
count erclaim (Gojo vs. Goyola, L-26768, Oct. 30, 1970).
10. A count erclaim or cross-claim must be answered
wit hin 10 days from service (Sec. 4, Rule 11). Where the
part y is in default on said count erclaim or cross-claim,
the court may render judgme nt grant ing such relief as
the pleading may w a r r a n t or r equir e t he cla i ma nt to
submit evidence (Sec. 3, Rule 9).
11. . Alt hough the Government is generally

immune from suit, if it files an act ion against a pr ivat e
part y, it surr ender s its privileged posit ion and the
defendant may validly file a count ercla im ag a inst it
(Froilan vs. Pan Oriental Shipping Co., 95 Phil. 905).
12. It is not proper to allow a count erclaim to be filed
against a lawyer who has filed a complaint for his client
and is merely his r epr esent at ive in court, not a plaint iff
or complainant in the case, since such a procedure would
result in mischievous consequences. A lawyer owes his
client ent ire devotion to his genuine int erest , war m zeal
in the ma int e na nce and defense of his r ight s, and the
exert ion of his ut most lear ning and abilit y. He cannot
properly at t end to his dut ies if, in the same case, he is
kept busy defending himself. Where the lawyer acts in
the nam e of a client , t he court should not per mi t his
being impleaded as an addit ional part y defendant in t he
co unt er cla im in the very same case where he is act ing
only as a counsel. Any claim for alleged da mages or ot her
causes of act ion against him should be filed in an ent irely
s e p a r a t e an d d is t inc t civil act io n (Chavez, etc. vs.
Sandiganbayan, et al., G.R. No. 91391, Jan. 24, 1991).
Sec . 8. Cross-claim. — A cro s s- c la i m is an y clai m

by on e p art y agai n s t a co -p arty ari s i n g ou t of the
146
RUL E 6 KIND S O F PL E ADIN G S S E C S . 9 -1 0
t ran s act i o n or o c c u rre n c e that i s the su bj ect matt e r

ei t h e r of the ori gi n a l act i o n or of a c o u n t e rc l a i m
t h erei n . Su c h c ro s s- c la i m ma y i n clu d e a clai m that
the p art y agai n s t wh o m i t i s assert e d i s or ma y be
liab le to the c ro s s- c la i man t for all or part of a clai m
asse rt e d i n the act i o n agai n s t the cro s s- c l ai m an t .
(7)
NOTES
1. A cross-claim differs from a counterclaim in t hat

the former is filed against a co-party and a cross-claim
always ar ises out of the t ransact ion or occurrence t hat is
the su bject - mat t er eit her of the original action or of a
count erclaim t herein. A cross-claim which is not set up
in t he act io n is bar r ed, except when i t is out side the
jur isdict io n of the court or if t he court cannot acquire
jur isdict ion over t hird part ies whose presence is necessary
for the adjudicat ion of said cross-claim (Sec. 8 of this Rule;
Sec. 2, Rule 9). The lat t er case is what some wr it ers call
a permissive cross-claim.
2. The dismissal of the complaint carr ies with it the
dismissal of a cross-claim which is purely defensive, but
not a cross-claim seeking affir mat ive relief (Torres, et al.
vs. CA, et al., L-25889, Jan. 12, 1973).
Sec . 9. Counter-counterclaims and counter-cross-

claims. — A c ou n t e rc l a i m ma y be assert ed agai n s t
an ori gi n a l c o u n t e r - c l a i m a n t .
A c r o s s - c l a i m ma y als o b e fi led ag a i n s t a n
ori gin al cro s s- c la i man t , (n)
Sec. 10. Reply. — A reply is a p l ea d i n g , the office

or funetien of which is to deny , or a llege facts in
de nia l or avoidance of new m a tt e r s al leg e d by wa y
of defense in the answer and t h e r e b y join or mak e
issue as te aueh new mat ter s . If a party doe s not
147
RUL E 6 R E M E D I A L LA W C O M P E N D I U M S E C S . 9 -1 0
file suc h reply, all the ne w mat t er s al le ge d in the

an sw e r are d e e m e d con t rove rt ed , '-h ^p P
I f the p laint i ff wi sh e s to i n t e rp o s e an y clai ms
a ri s i n g ou t o f the ne w m a t t e r s s o a l l e g e d , su c h
c l a i m s s h a l l b e se t fo rt h i n a n a m e n d e d o r
s u p p l e m e n t a l comp lai n t . (11)
NOTES
1. The primar y purpose of the reply is to join issues

wit h new mat t er s raised in the answer and t hereby au•
t horize the pleader of the reply to introduce evidence on
said new issues.
2. . The filing of t he reply is opt io nal as t he
new mat t er s raised in the answer are deemed
co nt ro vert ed even wit hout a reply. Where t he part y
desires to file a reply, he must nevert heless do so
wit hin 10 days from service of the pleading responded
to (Sec. 6, Rule 11).
3. . As t hen formulat ed, it was believed t hat in

the following inst ances, t he filing of a reply was
compulsory and must be filed wit hin t he said 10-day
period:
(a) Where the answer alleges the defense of usury
in which case a reply under oat h is required, ot herwise
the allegat io ns of usur y are deemed admit t ed (Sec. 11,
Rule 8); and
(b) Wher e the answe r i s based on an actio nable
do cument in which case a verified reply is necessar y,
ot her w ise the g e nu ine ne s s and due e xecut io n of said
act io na ble do cu me n t are gener a ll y dee med ad m it t e d
(Sec. 8, Rule 8).
Wit h respect to par. (a) on usury, the view t hat all
allegat io ns of usur y had to be denied specifically and
under oat h was engendered by the fact t hat the former
Sec. 1 of Rule 9, in mak in g t he r equ ir e me n t for such
148
sworn denial under pain of admission of the allegat ions
149
RUL E 6 KIND S O F P LE ADIN G S S E C S . 9 -1 0
on usury, did not make any dist inct ion as to the pleadings
involved. However, in Liam Law vs. Olympic Sawmill,
et al. (L-30771, May 26, 1984), it was held that pur suant to
Sec. 9 of the Usur y Law, the first abovecited inst ance
requir ing denial of allegat ions of usury under oat h does
not apply to a case where it is the defendant , not the
plaintiff, who is alleging usur y.
Accordingly, Sec. 11 of Rule 8 now expresses t hat
specific r equir eme nt and provides t hat "(a)llegat ions of
usur y in a co mplaint to recover usur ious int er est are
deemed admit t ed if not denied under oat h." Hence, if the
a l le g at io n of usur y i s c o nt a i ne d in the d e fe nd a nt ' s
answer, for inst ance, by way of defense to a complaint
for a sum of money, it is not necessary for plaint iff to file
a reply t her et o in order to deny t hat allegat ion under
oath.
It is believed, however, t hat if such allegat ion was
made by the defendant in a counterclaim in t hat action,
it would be necessary for plaintiff, in order to controvert
the same, to make a specific denia l under oat h in the
answer to such count erclaim since the latter, after all, is
in the nat ur e of a count er-compla int of the defendant .
In fact, under Sec. 1, Rule 3, the t erm "plaint iff may refer
to the claiming part y, the count er-claimant , the cross-
claimant, or the t hird (fourth, etc.) party-plaint iff.
The dist inct ion here proposed is due to the fact t hat
a co unt er cla i m invo lves a cause of act ion and seeks
affir mat ive relief, while a defense merely defeat s the
plaint iffs cause of act ion by a denial or confession and
avoidance, and does not admit of affirmative relief to the
defendant (Lovett vs. Lovett, 93 Fla. 611, 112 So. 768;
Secor vs. Silver, 165 Iowa 673, 146 N.W. 845).
4. Where the case is submit t ed on the pleadings, the
failure of the part y to make a reply does not mean t hat
he is deemed to have controverted the issues raised in
the answer, as this is an exception to the rule (Falcasantos
150
vs. How Suy Ching, 91 Phil. 456).

5. A part y cannot, in his reply, amend his cause of
act ion (Calvo vs. Roldan, 76 Phil. 445) nor int roduce
t her e in new or addit ional causes of act ion (Anaya vs.
Palaroan, L-27930, Nov. 26, 1970).
Sec. 11. Third, (fourth, etc.) - part y complaint . —

A th i rd (fourth, etc.) - party c o m p l a i n t is a clai m
that a d e f e n d i n g party may, wit h leav e of cou rt , file
agai n s t a p erso n not a part y to the act i on , called
the t h i r d ( f o u rt h , et c. ) - p art y d e f e n d a n t , for
con t ri b u t i o n , i n d e mn i t y , su b ro gat i o n o r an y oth e r
relief, in resp ec t of hi s op p on en t ' s clai m. (12a)
- .. ---- ' •• J.'.y ... wj - -
NO TES
1. A t hird-part y complaint is similar to a cross-claim

in t hat the t hir d - par t y plaint iff seeks to recover from
ano t he r person some relief in respect to the opposing
part y' s claim, but it differs t herefrom in t hat in a cross-
claim, the t hird part y is alr eady impleaded in the act io n
while in a t hir d- part y complaint , said t hird part y is not
yet impleaded. Consequent ly,- in the filing of a t hir d-
part y complaint , leave of court is requir ed as t her eaft er,
if grant ed, summo ns will have to be served on the t hird-
part y defendant .
2. A t hir d -part y complaint need not arise out of or

be ent irely dependent on the main act ion as i t suffices
t hat the former be only "in respect of the claim of the t hir d -
part y pla int iffs opponent . Consequent ly, the judg• ment on
a t hir d - part y complaint may become final and executory
wit hout wait ing for the final det er minat io n of the main
case (Pascual vs. Bautista, L 21644, May 29, 1970).
3. A t hir d -part y complaint is similar to a complaint

in int er vent io n (Rule 19) in t hat both result in br inging
150
RUL E 6 KIND S O F P LE ADIN G S SE C . 11
into the act ion a t hird person who was not originally a
part y; but they differ in t hat the init iat ive in a t hird-part y
complaint is wit h the person already a part y to the act ion,
while in int er vent io n the init iat ive is wit h a non-part y
who seek s to join the act io n. The de fe nd a n t i s not
compelled to bring t hird part ies into the lit igat ion as the
rule simply per mit s the inclusion of anyone who meets
the st andard set forth therein, in order to avoid multiplicit y
of suit s (see Balbastro, et al. vs. CA, et al., L-33255
Nov. 29, 1972).
4. . The t est s to det ermine whet her the t hird-

part y complaint is in respect of plaint iff s claim are:
"a. Where it arises out of the same t ransact io n on
which the p la int iffs claim is based; or whet her the third-
part y claim, alt hough arising out of another or different
contract or t r ansact io n, is connected wit h the plaint iffs
claim;
b. Whet her the t hird-part y defendant would be liable
to the plaint iff or to the defendant for all or part of the
plaint iff's claim against the original defendant , alt hough
the t hird-part y defendant ' s liabilit y ar ises out of anot her
t ransact ion; and
c. Whet her the t hird-part y defendant may assert any
defenses which t he t hir d-part y plaint iff has or may have
to the pla int iffs claim" (see Capayas vs. CFI of Albay,
et al. 77 Phil 181).
Co nsequent ly, a defendant may file a t hir d -part y
complaint in the same capacit y in which he is being sued
in t he original co mplaint . A plaint iff may also file a third-
part y complaint but also in the same capacit y in which he
is sued under a count erclaim.
5. Where t he t rial court has jur isdict ion over the
main case, it also has jur isdict ion over the t hird-part y
complaint regardless of the amo unt involved as a third-
part y complaint is merely auxiliar y to and is a continua-
151
tion of the main act ion (Republic vs. Central Surety &
Insurance Co., et al., L-27802, Oct. 26, 1968; Eastern
Assurance & Surety Corp. vs. Cui, et al., G.R. No. 54452,
July 20, 1981). For the same r easo n, wha t is det er•
minat ive of venue are the operat ive facts in the main case,
and not those alleged in the t hir d-part y complaint .
6. An order disallowing a t hird-part y complaint is

appealable (Dtr&ioo vei Malagat, L-2413, Aug. 10, 1967)
since it would finally dispose of de fe ndant ' s r ight to
implead the t hird part y.
7. Where a t hir d-part y defendant appealed to the

t hen Court of First Inst ance but the t hir d-part y plaint iff
(defendant ) did not appeal from the ju dg me nt against
him in favor of the plaintiff, such judg ment became exe•
cutory, wit hout prejudice to the t hir d-part y defendant ' s
appeal being given due course as it pert ains only to the
t hird-part y complaint (Firestone Tire & Rubber Co. vs.
Tempongko, L-24399, Mar. 28, 1969) and such judgme nt
on the t hir d - part y complaint is separ at e and severable
from t hat in t he main case.
8. . Where the trial court dismissed the

complaint and t he defendant s' t hird-party complaint and
only t he plaint iff appealed, the Court of Appeals, in
reversing t he judg ment dismissing plaint iffs complaint ,
cannot make a find ing of liabil it y on the p ar t of the t h i r d -
p a r t y defendant s since the defendant s, as t hird-part y
plaint iffs, did not appeal from the dismissal of t heir
t hir d - par t y co mp la in t an d the t h i r d - p a r t y d e fe nd a nt s
wer e not part ies in the case on appeal (Go, et al. vs.
CA, et al, L-25393, Oct. 30, 1980).
9. A t h ir d - par t y co mp la int cannot be filed in a
special civil act ion for declarat ory relief as no mat er ia l
relief is sought in t his act ion (Comm. of Customs, et al.
vs. Cloribel, et al, L-21036, June 30, 1977).
152
RUL E 6 KIND S O F PLE ADIN G S S E C S . 12 , 13
Sec . 12. Bringing new parties. — W h e n the

p re s en c e o f p a rt i e s ot h e r tha n th os e t o the ori gi n al
acti on i s req u i red for the gran t i n g of comp let e relief
in the d e t e r m i n a t i o n of a c o u n t e r c l a i m or cross -
claim, the Cou rt sh all ord er t h e m to be b rou gh t in
a s d e f e n d a n t s , i f j u r i s d i c t i o n ove r t h e m ca n b e
ob t ai n e d . (14)
NOTES
1. For pur poses of Sec. 12 of t his Rule, t he court

ma y a u t ho r i z e the filing of the pr o pe r t h i r d - p a r t y
complaint to implead the ot her part ies not included in
the original complaint (Rubio vs. Mariano, et al., L-30403,
Jan. 31, 1973).
2. . Even wher e t he imp lead ing of the t hir d -

par t y defendant s does not fall squarely wit hin t he
requisit es of Sec. 12, Rule 6 on t hird-part y complaint s,
their inclusion in the action may be per mit t ed where
t here is a quest ion of law or fact common to the right
in which t hey are int erest ed and anot her right sought to
be enforced in the action, hence t heir inclusion as proper
(now, necessary) par t ies is just ified U NDE R Sec. 6,
Rule 3 of t he Rules (Balbastro, et al. vs. CA, et al.,
supra).
Sec. 13. Answer to third (fourth, etc.) - party

complaint. — A th i rd (fou rth, etc.) - party d efe n d an t
ma y a l le g e i n hi s a n s w e r hi s d e f e n s e s , c ou n t e r •
clai ms or cro ss- c lai m s, i n c l u d i n g suc h d efen se s that
the t hi r d ( fou rt h, etc.) - party plaint iff ma y hav e
aga i n s t the o ri gi n a l p l a i n t i f f s claim. I n p rop e r
cases , he ma y als o ass e r t a c o u n t e rc l a i m agai n s t
the ori gi n al p lai nt i ff in resp ec t of the latter' s clai m
agai n s t the t h i rd - p art y plaintiff, (n)
153
RULE 7
PARTS OF A PLEADING
S ec t i o n 1. Caption. — The cap t i o n set s forth the

nam e o f the court, the title o f the act i on , and the d ocke
t n u mb e r i f ass i gn ed .
The ti t le o f the act i o n i n d i c at e s the n am e s o f the
p art i es . The y shall all be n ame d in the ori gi n a l
c o m p l a i n t o r p e t i t i o n ; bu t i n al l s u b s e q u e n t
p l e a d i n g s , i t shall be su ffi ci ent i f the nam e of the
fi rs t p a r t y o n e a c h s i d e b e s t a t e d w i t h a n
a p p r o p r i a t e i n d i c a t i o n w h e n t h e r e ar e o t h e r
p art i es.
Th ei r re s p e c t i v e p art i ci p at i o n i n the cas e shall
be i n d i cat ed , ( la , 2a)
NO TES
1. As revised, the capt ion of a pleading in civil cases

is no longer r equ ir e d to st at e the des ig nat io n of the
pleading, since the designat ion of the ple ading is prop•
erly cont ained in the body t hereof (Sec. 2) preceding the
allegat io ns. In criminal cases, i t is required t hat , when•
ever possible, t he complaint or informat ion should st at e
the designat ion of the offense or the sect ion or subsect ion
of t he st at ut e punishing it (see Sec. 8, Rule 110 and notes
t her eu nd er ) .
2. . I t i s not the capt io n of the p lead i n g bu t

the allegat ions t herein t hat det ermine the nat ure of the
action, and t he court shall gr an t t he relief w a r r a nt e d
by t he allegat ions and the proof even if no such relief is
prayed for (Ras vs. Sua, L-23302, Sept. 25, 1968).
3. The abbr eviat io n "et al." for et alii ("and others")

or et alius ("and anot her") is often affixed to the name of
154
RUL E 7 P AR T S OF A PLE ADIN G S SE C . 2
the person first mentioned, where there are more than

one party to the action on either side (see In re Mc-Govern's
Estate, 77 Mont. 182, 250 P. 812; Lyman vs. Milton, 44
Cal. 630).
Sec. 2. The body.—The body of the p lead i n g sets

forth its d e s i g n a t i on , the al l egat i on s of the party' s
claims or d efen ses, the relief p rayed for, and the date
of the p le ad i n g , (n)
(a) Paragraphs. — The al le gat i on s in the body
of a p l e a d i n g sh all be d i vi d e d into p a rag rap h s so
n u mb e re d as to be read i ly i d en t i fi ed , eac h of wh i c h
s h a l l c o n t a i n a s t a t e m e n t o f a s i n g l e se t o f
c i r c u m s t a n c e s s o far a s t h at ca n b e d on e wi t h
c o n v e n i en c e . A p a rag ra p h ma y be referred to by a
n u mb e r in all s u c c e e d i n g p l ea d i n gs . (3a)
(b) Headings. — Wh e n tw o or mor e c a u s e s of
acti on are j oi n ed , the s t at e m e n t of the first shall be
p refaced by the word s "first cau s e of acti on, " of the
secon d by " secon d cau s e of act ion," and so on for
the ot h ers .
Whe n on e o r mor e p a ra g ra p h s i n the an s w e r
are a d d re s s e d to on e of severa l cau se s of act i o n in
the c o mp l ai n t , the y shall be p refac ed by the word s
" an swer to the first cau s e of act i on " or " an swer to the
secon d cau s e of act i on " and so on; and wh e n one
or more p a rag rap h s of the an swe r are ad d re ss e d to
seve ra l ca u se s of act i on, the y shali be p refaced by
word s to that effect. (4)
(c) Relief. — The p lead i n g shall speci fy the reli ef
sou gh t , but i t ma y add a gen era l p rayer for su c h
fu rt h er or ot h e r re li e f as ma y be d e e me d jus t or
eq u i t ab le. (3a, R6).
(d) Date. — Every p lead i n g shall be d at ed, (n)
NOT E S
1. The prayer in a pleading does not constit ut e an

esse nt ia l par t of the allegat ions det erm inat ive of the
ju r is d ict io n of a co urt . The que st io n of jur is d ict io n
depends largely upon the det erminat io n of t he t rue nat ure
of the act ion filed by a part y which, in turn, involves the
considerat io n of the ult imat e facts alleged as const it ut ive
of the cause of act ion t herein (Bautista vs. Fernandez, L-
24062, April 30, 1971). The prayer for relief, alt hough par
t of t he complaint , cannot creat e a cause of action; hence, it
cannot be considered as a par t of t he allegat ions on the
nat ure of t he cause of act ion (Rosales vs. Reyes, 25 Phil.
495; Cabigao vs. Lim, 50 Phil. 844).
2. The same rule obt ains in a majorit y of the st at es

in the Amer ican jur isdict io n which hold t hat the pra yer
or demand for relief is not part of the st at eme nt of the
cause of act ion (Salmons vs. Sun & Bradstreet, 162 S.W.
2d 245; Central Nebraska Public Power & Irrigation Dist.
vs. Watson, et al., 299 N.W. 609; Durham vs. Rasco, 227
P. 599). The prayer for relief cannot be considered as
adding to t he allegat io ns of the co mp laint or pet it io n
(Speizman vs. Guill, 25 S.E. 2d 731; Coke, et al. vs. Sharks,
et al., 291 S.W. 862). The prayer does not enlarge the
cause of act ion st at ed nor does it change the legal effects
of what is alleged (Sandgren vs. West et ux., 115 P. 2d,
724; State vs. Bonham, et al., 193 S.E. 340). A good
prayer does not aid a defective pleading (Somers vs. Bank
of America, et al., 187 P. 2d 433; Villani vs. National City
Bank of New York, 256 N.Y.S., 602).
Sec . 3. Signature and address. — E ve r y p l e a d i n g

m u s t b e s ig ne d b y t he p a r t y o r co u n s e l r e p r e s e n t i n g
hi m , s t a t i n g i n e it h e r cas e hi s a d d r e s s w h i c h s ho u l d
no t be a po s t office box.
156
RUL E 7 P AR T S OF A P L E A D I N G SEC . 3
Th e s i g n a t u r e o f c o u n s e l c o n s t i t u t e s a
certi ficat e by hi m that he ha s read the p leadin g, that
to the best of hi s k n o w l e d g e , i n format i on , and belief
t here i s goo d grou n d to su p p or t it, and that i t i s not
i n t e rp o s e d for d elay.
A n u n s i g n e d p l e a d i n g p ro d u c e s n o legal effect.
H oweve r, the Cou rt may, in its d i scret i on , allow such
d efi ci en cy to be re med i e d i f i t shall ap p ea r that the
same wa s du e to mere i n ad ve rt en ce and not int en d ed
for d e l a y . C o u n s e l wh o d e l i b e r a t e l y fi l e s a n
u n s i gn e d p l e a d i n g , or si gn s a p lead i n g in vi olat i on
o f t h i s Ru le , o r a l l e g e s s c a n d a l o u s o r i n d e c e n t
matt er t h e rei n , o r fails t o p romp t l y rep ort t o the
cou rt a c h a n g e of hi s ad d ress , shall be su b j ect to
ap p rop ri a t e d i s c i p l i n a r y act i on . (5a)
NOTES
1. The S upr eme Court has furt her resolved t hat, in

addit ion to the r equir ement t hat counsel should indicate
in all pleadings, mot ions and papers submit t ed by him to
judicial or quasi- judicial bodies his curr ent Professional
Tax Receipt (PTR) and IBP official receipt or Lifetime
Member Number (Bar Matter No. 287, Sept. 26, 2000), he
should furt her indicate his Roll of Attorneys Number.
All p lead ings, mot ions and paper s filed in court,
whet her personally or by mail, which do not bear counsel's
Roll of At torneys Number may not be acted upon by the
court, wit hout prejudice to what ever disciplinar y action
the court may t ake against the erring counsel who shall
likewise be required to comply with the requirement within
5 day s from no t ice . F a i l u r e to comply wit h suc h
r equir eme nt shall be a ground for further disciplinar y
sanction and for cont empt of court (Bar Matter No. 1132,
April 1, 2003).
2. It will be noted t hat this amended section further
specifically r e q u ir e s , UNDE R pai n of
ad min ist r at iv e
157
RUL E 7 R E M E D I A L LAW COMPENDIU M SE C . 4
d is c ip l i n a r y act io n or eve n a c it at io n for ind ir e c t

cont empt , t hat counsel should prompt ly report to the
court where he is appear ing in a case any change of his
address. I t is element ar y t hat the requirement to make
of record in the court his address or any change thereof is
to ensure his prompt receipt of judicial orders or processes;
yet, a number of lawyers fail to report such changes in
both the trial and appellat e courts result ing in unnecessar y
delay in judicial administ rat io n. This sit uat ion is furt her
aggravat ed where even the address of the part y is not
st at e d in the plead ing s or i t i s merely a ver r e d t hat
processes to said part y may be served on his counsel.
3 . No s u bs t it ut io n of a t t o r ne y s will be allo wed

unless (a) t here is a wr it t en request for such subst it ut io n,
(b) filed wit h the wr it t e n co nse nt of the client , and
(c) with the writt en consent of the attorney to be subst it ut ed,
or with proof of service of notice of said mot ion to the
at t or ney to be subst it ut ed. Unless t hese are complied
wit h, no subst it ut io n will be per mit t ed and the att orney
who last appeared in t he case before such applicat ion will
be responsible for the conduct of the case (Bacarro vs. CA,
et al, L-28203, Jan. 22, 1971, cit ing U.S. vs. Borromeo,
20 Phil. 189; see Magpayo, et al. vs. CA, et al, L-35966,
Nov. 19, 1974; Sumadchat vs. CA, et al, G.R. No. 52197,
Jan. 30, 1982; Aban vs. Enage, L-30666, Feb. 26, 1983;
Yu, et al. vs. CA, et al, G.R. No. 56766, Feb. 28, 1985).
Sec . 4 . Verification. — Excep t wh e n o t h e rw i s e

sp eci fi ca l ly p rovi d e d by law or ru le, p l e a d i n g s nee d
no t b e U N D E R oat h , v e ri f i e d o r a c c o m p a n i e d b y
affidavit.
A p l e a d i n g i s veri fi ed by an affid avi t that the
a f f i a n t h a s re a d the p l e a d i n g an d t h at the
a l l e g a t i o n s t h e r e i n ar e t ru e an d co r r e c t o f hi s
p erson a l k n o w l e d g e o r based o n a u t h e n t i c reco rd s.
158
RUL E 7 P AR T S O F A PLEADIN G SE C . 4
A p lead in g require d t o b e verifie d whic h

co n ta i n s a ver if ica ti on based on "information and
belief," or upon "knowledge, information and belief,"
or Jacks a proper verification, shall be t r e a t e d as
an unsigned-pleading. (4a) (As amended in A.M.
No. 00-2-10SC, effective May 1, 2000)
NO TES
1. The second par agr aph of this sect ion has been
furt her amended so t hat the pleader' s affirmat ion of the
t rut h and correct ness of the allegat ions in his pleading
shall be based not only on his "knowledge and belief but
specifically on his "per so na l kno wledge or based on
aut hent ic records." In the 1964 Rules of Court, Sec. 6 of
Rule 7 required perso nal knowledge of the facts averred,
which wa s co ns id er e d too st r ic t since a per so n can
reasonably affirm a fact based on his belief in its t rut h
when t here is or has been no other fact or reason cont rar y
t hereto.
However, t hat liberalized version is bet t er regulat ed
by t he pr esent amended provisions t hat facts should be
attest ed to on the basis of one's personal knowledge or,
especially wit h regard to old or vint age facts or event s,
by the recitals t hereof in aut hent ic records. Verificat ion
is int ended to forestall allegat ions which are perjured or
hear say, and t his purpose is reasonably subser ved by
the r equir ement for aut hent ic document s such as official
records which are except ions to the he ar say evidence
rule. For the same reason, a verification cannot be made
on facts obtained or arising in whole or in part from mere
informat ion and belief.
2. . Ver ificat io n ma y be mad e by the part y ,

his r epr e se nt at ive, law yer or any person who
personally knows the t r ut h of the facts alleged in the
pleading. Where the verificat ion is made by the attorney
who also signed
159
the pleadings, the courts are inclined to be liberal and

accept subst ant ial compliance wit h t he verificat ion rule
(Arambulo vs. Perez, 78Phil. 387;Matel vs. Rosal, 96Phil.
984 fUnrep.J; Cajefe vs. Fernandez, etc., et al, 109 Phil.
743). Thus, where a pet it ion for ma nda mu s was verified
by the counsel to be true "to the best of (his) knowledge,
infor mat io n and belief," it was held to be sufficient in
view of the sanct ions respect ing at torneys in Sec. 5 (now,
Sec. 3) of this Rule (Guerra Enterprises, Co., Inc. vs. CFI
of Lanao del Sur, et al, L-28310, April 17, 1970).
On t he ot he r hand , a cert ificat io n aga i ns t forum
sho pping (Sec. 5 ) mus t be mad e by t he part y himse lf
and not by his lawyer (Santos, et al. vs. CA, et al, G.R.
No. 141947, July 3, 2001).
3. As a rule, pleadings need not be verified unless

so r equir ed by the Rules and ju r is pr ud e nce, as in t he
following inst ances:
a. Pet it ion for relief from judg me nt or order (Sec. 3,
Rule 38);
b. Pet it ion for review from the Regional Trial Court s
to the Court of Appeals (Sec. 1, Rule 42);
c. Pet it ion for review from t he quasi-judicial agencies
to the Court of Appeals (Sec. 5, Rule 43);
d. Appe a l by c e r t i o r a r i from t he Co ur t of Tax
Appe a l s to the S u p r e m e C o u r t (Sec. 12, R.A. 9282 ,
ame nd ing Sec. 19, R.A. 1125);
e. Appeal by cert iorar i from the Court of Appeals to
the S upreme Court (Sec. 1, Rule 45);
f. P et it io n for a n n u l m e nt of ju d g m e nt s or final
orders and reso lut io ns (Sec. 1, Rule 47);
g. Complaint for injunct ion (Sec. 4, Rule 58);
h. Applicat ion for appo int ment of receiver (Sec. 1,
Rule 59);
160
RUL E 7 P AR T S OF A P L E A D I N G SE C . 4
i. Applicat io n for suppor t pendente lite (Sec. 1,

Rule 69);
j . P et it io n for cert io r ar i aga ins t t he judg me nt s ,
final orders or resolut io ns of const it ut io nal commissions
(Sec. 2, Rule 64);
k. Pet it ion for cert iorari (Sec. 1, Rule 65);
1. Pet it io n for prohibit ion (Sec. 2, Rule 65);
m. Pet it ion for ma nd a mus (Sec. 3, Rule 65);
n. Pet it ion for quo warr ant o (Sec. 1, Rule 66);
o. Complaint for expropriat ion (Sec. 1, Rule 67);
p. Complaint for forcible ent ry or unlawful det ainer
(Sec. 4, Rule 70);
q. Pet it ion for indirect cont empt (Sec. 4, Rule 71);
r.Pet it io n for appo int ment of a general guardian
(Sec. 2, Rule 93);
s. Pet it ion for leave to sell or encumber propert y of
the ward by a guar dian (Sec. 1, Rule 95);
t. Pet it io n for the declar at ion of compet ency of a
ward (Sec. 1, Rule 97);
u. Pet it ion for habeas corpus (Sec. 3, Rule 102);
v. Pet it ion for change of name (Sec. 2, Rule 103);
w. P et it io n for vo lunt ar y judicial disso lut ion of a
corporat ion (Sec. 1, Rule 104); and
x. Pet it ion for cancellat ion or correct ion of ent r ies
in the civil regist ry (Sec. 1, Rule 108).
4. While not required to be verified in the manner
and form prescribed by Sec. 4 of this Rule, the following
must be under oath:
a. Denial of the genuineness and due execut ion of
an act ionable document (Sec. 8, Rule 8);
b. Denial of allegat ions of usury (Sec. 11, Rule 8);
161
c. Mot ion to set aside a default order (Sec. 3[bJ,

Rule 9).
d. Answer to writ t en int errogatories (Sec. 2, Rule 25);
an d
e. Answer to request for admission (Sec. 2, Rule 26).
5. Supporting affidavits or affidavits of merits are
required in the following:
a. Mot io n to po st po n e for abs e nc e of evide nc e
(Sec. 3, Rule 30);
b. Motion to postpone for illness of a part y or counsel
(Sec. 4, Rule 30);
c. Mot ion for s u m m a r y j u d g m e n t or o ppo sit io n
t her et o (Secs. 1, 2, 3 and 5, Rule 35);
d. Mot io n for new t r ia l on the gr o un d of fraud,
accident, mist ake or excusable negligence or opposit ion
t her et o (Sec. 2, Rule 37);
e. Pet it ion for relief from judg me nt or order (Sec. 3,
Rule 38);
f. Third-part y claim (See. 16, Rule 39);
g. P roo f r e q u i r e d of a r e d e m p t i o n e r (Sec. 30,
Rule 39);
h. Mot io n for p r e l i m i n a r y a t t a c h m e n t (Sec. 3 ,
Rule 57);
i. Motion for dissolut ion of preliminar y injunct ion
(Sec. 6, Rule 58);
j. Applicat ion for a writ of replevin (Sec. 2, Rule 60);
k. Claim aga inst the est at e of a decedent (Sec. 9,
Rule 86); and
1. Motion for new t rial on the ground of newly-
discovered evidence in criminal cases (Sec. 4, Rule 121).
6. Even where verificat ion is requir ed by t he Rules,

the court may give due course to the plead ing even if
162
such verification is lacking or is insufficient or defective

if the circumstances warrant the relaxation or dispensing
of the rule in the interest of justice (Oshita vs. Republic, L-
21180, Mar. 31, 1967; cf. Quimpo vs. Dela Victoria, L
31822, July 31, 1972; Valino vs. Munoz, et al., L-26151, Oct.
22, 1970; Villasanta, et al. vs. Bautista, et al., L-30874,
Nov. 26, 1970). Verification of a pleading is a formal, not a
jurisdictional, requisite (Buenaventura vs. Uy, et al., L-
28156, Mar. 31, 1987). It is simply intended to secure an
assurance that the allegations are true and correct and
that the pleading is filed in good faith (Bank of the Phil.
Islands vs. CA, et al., G.R. No. 146923, April 30, 2003).
Hence, in the interest of substantial justice, the Court
may simply order the correction of the unverified pleading
or act on it and waive strict compliance with the rules (Vda.
de Gabriel vs. CA, et al., G.R. No. 103883, Nov. 14, 1996;
Panaguiton, Jr. vs. Dept. of
Justice, et al., G.R. No. 167571, Nov. 25, 2008).
7. Pleadings filed in the inferior courts in cases

covered by the Rule on Summary Procedure are all re•
quired to be verified (Sec. 2[BJ on Civil Cases).
Sec . 6. Certification against forum shopping. — The

plainti ff or p ri n ci p a l party shall certify UNDER
oath i n the c o m p l a i n t o r o t h e r i n i t i a t o r y p l e a d i n g
a s s e r t i n g a c l a i m fo r re l i e f , or in a s w o r n
ce rt i fi cat i on a n n e xe d t h e ret o and si mu l t an eo u s l y
filed t h e r e w i t h : (a) th at h e ha s no t t h e re t o f o r e
c o m m e n c e d an y act i o n or filed an y clai m i n vo lvi n g
the sam e i s s u e s i n an y cou rt , t ri b un a l o r q u asi -
j u d i ci al agen c y and , to the best of his kn ow l ed ge ,
no suc h ot h e r act i o n or clai m i s p en d i n g t h erei n ;
(b) i f t h er e is suc h oth er p en d i n g act i on or clai m, a
comp let e s t a t e m e n t of the p resen t st atu s thereof;
and (c) i f he sh ou l d th erea ft e r learn that the same
o r s i m i l a r a c t i o n o r cl ai m ha s b ee n fi led o r i s
p endi ng, he shall report that fact wit hin five (5) days
163
t h e r e f r o m t o the C ou rt w h e r e i n hi s a f o r e s a i d
co mp l ai n t or in it iat ory p lead i n g ha s bee n filed.
Fai lu re t o comp l y wit h the fo regoi n g req u i re•
men t s shall not be cu rab l e by mer e a m e n d m e n t of
the comp l ai n t or ot h e r i n i t i at ory p le ad i n g but shall
b e c a u s e for the d i s m i s s a l o f the cas e w i t h o u t
p rej u d i ce, u n les s o t h e rw i s e p rovi d ed , upo n mot i o n
an d aft e r h e a r i n g . The s u b m i s s i o n o f a fals e
c e rt i f i c a t i o n o r n o n - c o m p l i a n c e wit h an y o f the
u n d e r t a k i n g s t h e r e i n sh a l l c o n s t i t u t e i n d i r e c t
c o n t e m p t o f c o u r t , w i t h o u t p r e j u d i c e t o the
c o r re s p o n d i n g ad mi n i st rat i v e and cri mi n al act i on s .
I f the act s o f the p art y o r hi s c o u n s e l c l e a r l y
c o n s t i t u t e wi llfu l an d d el i b e rat e foru m s h o p p i n g ,
the same shall be groun d for su mmar y d i smi s sa l wit h
p re j u d i c e an d shall c o n s t i t u t e di rec t c o n t e m p t , a s
wel l as a cau s e for a d m i n i s t ra t i v e s an c t i on s , (n)
NO TES
1. . The S upr eme Court has explained t hat t her e is

forum shopping when, as a result of an adverse decision
in one forum, or in ant icipat io n thereof, a part y seeks a
favorable opinion in a no t her forum t hrough means ot her
t ha n appeal or cert iorar i by raising ident ical causes of
action, subject - mat t er and issues. 'T o r u m shopping exist s
when two or more actions involve the same t r ansact io ns,
esse nt ia l facts and c ir cu ms t a nc e s, and raise ident ical
causes of act ion, su bje ct - mat t er and is sues. Ano t he r
indicat io n is whe n the e le me nt s of litis pendentia are
p r e s e n t or wher e a final j u d g m e n t in one case will
a mo un t to res judicata in t he ot her case. The t est is
whet her in the two or more pending cases t here is ident it y
of part ies, r ight s or causes of act ion and reliefs sought
(Ligon vs. CA, et al, G.R. No. 127683, Aug. 7, 1998; cf.
Melo, et al. vs. CA, et al, G.R. No. 123686, Nov. 16, 1999).
164
Fo r u m s ho pp in g i s c o nd e m ne d be ca u s e i t duly
burdens court s wit h heavy caseloads, unduly taxes the
manpower and financial resources of the judiciar y, and
trifles with and mocks judicial processes. The primar y evil
sought to be prescribed by the prohibit ion against forum
shopping, however, is the possibilit y of conflicting decisions
being r ender ed by the different court s upon t he same
issues (Guy vs. CA, et al., G.R. No. 165849, Dec. 10, 2007,
and companion cases).
2. This sect ion, wit h modificat ions, is t aken from

Ad minist rat ive Circular No. 04-94 issued by the Supreme
Court on Fe br uar y 8, 1994 for the pur pose explained
t herein:
"Revised Circular No. 28-91, dated Febr uar y 8,
1994 applies to and governs the filing of pet it ions in
the S upr eme Court and the Court of Appeals and is
int ended to prevent the mult iple filing of pet it ions or
c o mp l a i nt s in vo l v i n g the sa m e issu e s i n ot he r
t r ibuna ls or agencies as a form of forum shopping.
"Co mp lement ar y t heret o and for the same pur•
pose, the following r equir eme nt s, in addit ion to those
in p er t ine n t provisions of the Rules of Court and
exist ing circulars, shall be strictly complied with in
the filing of compla int s, pet it io ns, applicat ions or
ot her init iatory pleadings in all courts and agencies
ot her t ha n t he S upr eme Court and t he Court of
Appeals and shall be subject to the sanct ions provided
hereunder."
The provisions of Revised Circular No. 28-91 have
been adopt ed and incorporat ed in Rules 42, 43, 45, 46,
47, 64 and 65.
3. . The Supreme Court has advanced the rule
t hat compulsory count er cla ims are not co nt emp lat ed
in its Administrat ive Circular No. 04-94 which refers to
init iatory and similar pleadings. A compulsory
count erclaim set up
16B
in t he answers should not be considered as an init iatory

or similar pleading since the defendant ha s to raise a
co mpulsor y co unt ercla im wher e pro per, ot her w ise he
waives t he same. The rat ionale is t hat the compulsor y
count erclaim is only a react ion or response, mandat or y
under pain of waiver, to an init iat ory pleading which is
the complaint (Cruz-Agana vs. Santiago-Logman, etc., et
al., G.R. No. 139018, April 11, 2005). There are American
doctrines, however, holding t hat any counterclaim is in the
nat ure of a counter-complaint or cross-petition; hence, under
t hat theory it is actually init iatory of a claim for relief discrete
from the adverse part y's claim.
4. . Aside from some a m e n d m e nt s to the

or igina l sanct ions imposed in Ad minis t rat ive Circular
No. 04-94, this sect ion r e it er at es as a regular r equir ement
under the Rules t hat the cert ificat ion against forum
shopping may be incorporat ed in the complaint or
cont ained in a sworn cert ificat ion anne xed t her et o and
s imu lt a neo us l y filed t her ew it h. This enunc iat es the
policy of the S upr e me Co urt e xp r e s s e d as ear l y as
C ir cu la r No. 1-88 t hat su bse qu e n t co mpliance wit h
the r e qu ir e me nt s for t he filing of pet it io ns or mot ions
is not a ground for reconsi• der at io n of t he dis missa l of
said p leadings, except for compelling r easo ns. In light
hereof, the view t hat belat ed filing of the cert ificat ion
may be deemed a su bst ant ia l compliance should no
longer be sust ained.
Wit h r espe c t to the co nt e nt s of the cer t ific at io n
which the pleader may pr epar e, the rule of subst ant ial
compliance may be availed of. While t his section requires
t hat it be strict ly complied wit h, it mer ely underscores
it s m a nd a t o r y nat ur e in t hat i t canno t be a lt o get he r
dispensed wit h or its r equir ement s completely disr egarded
but i t does not t hereby pr event subst ant ial compliance on
this aspect of its provisions under just ifiable circumst ances
(see Gabionza vs. CA, et al., G.R. No. 112547, July 18,
1994). T hi s c e r t i f i c a t io n on no n - fo r u m s ho p p i n g
wa s des ig ne d t o pr o mo t e an d fac i l it a t e the o r der l y
166
ad min ist r at io n of just ice and, t herefore, should not be

int erpret ed wit h absolute lit eralness (Loyola vs. CA, et
al., G.R. No. 117186, June 29, 1995; Maricalum Mining
Corp. vs. NLRC, et al, G.R. No. 124711, Nou. 3, 1998;
RLC Construction and Deu. Corp., et al. us. Emily Homes,
etc., et al., G.R. No. 139360, Sept. 23, 2003).
More import ant ly, this section specifically st at es t hat
the "(f)ailure to comply wit h the foregoing r equir ement s
shall not be curable by mere ame nd ment of the complaint
or ot her init iat or y pleading but shall be cause for the
dismissal of the case wit hout prejudice, unless otherwise
provided, upon mot ion and aft er hear ing. " This will
obviate the former practice of some trial courts in allowing
ame nd ment of the incomplet e pleading for the incorpo•
rat ion t herein of the certificate against forum shopping.
That was e r r o neo u s since t hi s u nd e r t a k i n g ag a ins t
mult iple filing of cases is not part of the operat ive facts
required to be alleged in an init iatory pleading, such as
allegat ions on the cause of act ion. It is a special require•
ment for admission of the init iatory pleading for filing in
court, hence the absence thereof is not curable by mere
ame nd ment .
Inst ead, the case shall be dismissed on motion but,
just like the pract ice under Revised Circular No. 28-91 in
the appellat e court s, such dis missal shall be w it hout
prejudice. This more liberal rule is dist inguishable from
the effects of dismissal of the case for non-compliance
with the Rules under the provisions of Sec. 3, Rule 17
which pr esuppo ses the pendency of t he case, wher eas
what is cont emplat ed in this section is the init iat ion of
the case. The case may consequent ly be refiled wit hin
the balance of the r egle me nt ar y period but subject to
the provisions on prescript ion of actions.
5. In applying the forerunner of this sect ion, the

S upr e me Co urt , in the case of Fil-Estate Golf and
Development, Inc. vs. CA, et al. (G.R. No. 120958 ,
Dec. 16, 1996), ruled as follows:
167
RUL E 7 REMEDIA L LAW COMPENDIU M SE C . 5
"As clearly demonstrat ed above, the willful att empt

by pr ivat e r e s po nd e nt s to o bt ain a p r e l i m i n a r y
injunct ion in anot her court after it failed to acquire
the same from the original court const it ut es grave
abuse of the judic ial process. Such disr espect is
penalized by the summar y dismissal of both act ions
as mandat ed by par agr aph 17 of the Int er im Rules
and Guidelines issued by this Court on 11 Januar y
1983 and Supreme Court Circular No. 28-91. x x x.
X X X
The rul e a g a i ns t fo r u m- s ho pp in g i s fu r t he r
s t r e n g t h e ne d by the is sua nc e of S u pr e me Co urt
Cir cular No. 04-94. Said c ir cular formally est a•
blished the rule t hat the deliberat e filing of mult iple
co mp la int s to obt ain favorable act ion co nst it ut e s
forum-shopping and shall be a ground for su mmar y
dismissal thereof."
6. As earlier st at ed, with respect to the cont ent s of

the cert if icat io n of no n- fo r um sho pp ing, the rule of
subst ant ial compliance may be invoked under just ifiable
c i r c u m s t a n c e s . Ho wever , i t i s m a n d a t o r y t hat the
cert ificat ion be executed by the pet it ioner himself, and
not by counsel. Obviously, it is the petit io ner, and not
the counsel ret ained for a part icular case, who is in the
best posit ion to personally know whet her he or it had
actually filed or caused the filing of anot her or previous
pet it ion involving the same case or subst ant ia lly the same
issues. Hence, a cert ificat ion execut ed by counsel is
defective and const it ut es a valid cause for dismissal of
the pet it ion (Far Eastern Shipping Co. us. CA, et a I., G.R.
No. 130068, and Manila Pilots Association vs. Phil. Ports
Authority, et al., G.R. No. 130150, jo int ly decided on
Oct. 1, 1998; cf. Commissioner of Internal Revenue vs.
S.C. Johnson & Son, Inc., et al., G.R. No. 127105,
June 25, 1999; Mendigorin us. Cabantog, etc., G.R.
No. 136449, Aug. 22, 2002).
168
RUL E 7 PARTS OF A PLEADING SEC . 5
7. . On the foregoing pr e m is e s , wher e t her e

are several pet it io ner s, it is not sufficient t hat only one
of t hem execut es the cert ificat ion, absent a showing
t hat he was so aut hor ized by the ot hers. That
certificat ion requires personal knowledge and it cannot
be presumed t hat the signatory knew t hat his co-
pet it ioners had the same or similar act ions filed or pending
(Loquias, et al. vs. Office of the Ombudsman, et al., G.R.
No. 139396, Aug. 15, 2000). Where, however, the co-
pet it ioners are husba n d and wife wit h joint int er es t in
the subject mat t er of the case which is their conjugal
propert y, the husba nd alone as ad m in i st r at o r of said
propert y can execute the cert ificat ion (Docena, et al. vs.
Lapesura, etc., et al., G.R. No. NO 153, Mar. 28, 2001). Also,
where all the pet it io ner s, being r e lat ive s and co-owners
of the propert ies in disput e, share a common int erest
t herein and a common defense in the action, one of them
alone can execute the cert ificate of non-forum shopping
(Cavile, et al. vs. Cavile, et al., G.R. No. 148635, April 1,
2003).
8. This r equir ement is int ended to apply to both

nat ural and jur idical persons. Where the pet it ioner is a
co rpor at io n, the cert ificat io n aga inst forum shopping
should be signed by it s duly a ut ho r iz e d dir ect or or
r epr esent at ive. The same is t rue with respect to any
jur id ic a l e nt it y since i t has of necess it y the pro per
officer to repr esent it in its other t r ansact io ns (Digital
Microwave Corp. vs. CA, et al, G.R. No. 128550, Mar. 16,
2000). In National Steel Corp. vs. CA, et al. (G.R.
No. 134468 , Aug. 29 , 2002), t he rule was liber a l l y
applied pro hoc vice "in view of the peculiar circumst ances
of the case and in the int erest of subst ant ial just ice."
However, in BA Savings Bank vs. Sia, et al. (G.R.
No. 131214 , Jul y 27 , 2000), i t was held t hat the
certification of non-forum shopping may be signed, for and
on behalf of a corporation, by a specifically aut horized
lawyer who has personal knowledge of the facts required
to be disclosed in such document. This does not mean,
169
though, t hat any lawyer represent ing the corporation may

routinely sign t hat cert ificat ion. T hat lawyer must be
specifically auOwrized in order to validly sign the same.
Furt her, while said counsel may be the counsel of record;
t here must be a resolut ion of the board of directors t hat
specifically aut hor izes him to file the action and execute
the cert ificat ion (BPI Leasing Corp. vs. CA, et al., G.R.
No. 127624, Nov. 18, 2003).
9. If a case is dismissed wit hout prejudice because

of the filing by t he plaint iff of a notice or dismissal before
the service of the answer or responsive pleading pur suant
to Sec. 1, Rule 17, the subsequent refiling of the case by
the same part y will not require a certification of non-forum
shopping sett ing forth such ant ecedent facts.
As already st ated, forum shopping is resort ed to by a
part y with a case in one forum in order to possibly secur e
a favorable judg me nt in ano t her forum, ot her t ha n by
appeal or cert iorar i, or the inst it ut io n of two or more
act io n s o r p r o c e e d i n g s o n the sa m e caus e , o n the
supposit io n t hat one or the ot her court would make a
favorable dispo sit io n. Since a part y reso rt s to forum
shopping to improve his chances of obt aining a favorable
decision, t hat prohibit ion could not apply to a sit uat io n
co nt emp lat ed in Sec. 1, Rule 17. There is no adver se
decision against the plaint iff and the order of dismissa l
merely confirms the dismissal of the complaint wit hout
prejudice. The apprehens io n t hat the case was dismissed
in order to be t r ansfer red to the sala of ano t her judge
supposedly more sympat het ic to the plaint iff is baseless
and speculat ive (Roxas vs. CA, et al., G.R. No. 139337,
Aug. 15, 2001).
10. This sect ion provides for the mat t er s t hat should
be cont ained in the cert ificat ion against forum shopping
in t he co mp la in t or init iat or y p le ad i ng s filed in the
Regio nal Tr ial Court . Sec. 3 , Rule 46 pr escr ibes the
170
requi rem ent s for a certification against forum shopping
in p et it ions filed in the C our t of App eals, which have also
been adopted for petitions filed in the Suprem e Court,
p u r s u a n t to Sec. 2, Rule 56.
11. . As a goneral^cule-, t he violat ion of the rule-

on foru m s h o p i » H i g o ho ula~ be - ra is e d a t -the
ear*liest oppor tunity^ eu eh- «s *R -a-mot ion to dismiss or
a similar pleading. It should be noted t hat Sec. 1, Rule 9
provides that defenses and objections not pleaded in a
motion to dismiss or in an answer are deemed waived.
Also, Sec. 8, Rule 15 st at e s t hat , subject to the
pr ovisions of said Sec. 1, Rule 9, a motion a t t a ck i n g
a plea ding, or der , judgment or pr oceeding shall include
all objections then available, and all objections not so
included are deemed waived.
Thus, -belatedly raising- an-object ion due to forum
shopping at the-appellate stage will not cause the dismissal
of the appeal, except wher e the court has no jur isdiction
over the subject mat t er , or where litis pendentia, res
judicata or bar by st at ut e of limitat ions are present (Young
vs. Seng, etc., G.R. No. 143464, Mar. 5, 2003).
12. The doctrine of forum non conveniens lit erally

means "the forum is inconvenient," and emerged in private
int er nat io na l law to det er the pract ice of global forum
shopping, that is, to pr event nonr es ident litigants from
choosing the forum or place to bring their suit for malicious
reasons, to secur e pr ocedural adva nta ges, or to select a
more friendly venue. The court, may, however, refuse
imposit ions on its jurisdict ion where it is not the most
convenient forum and the par ties are not pr ecluded from
seeking remedies elsewhere.
Whether a suit should be entertained or dismissed
u nder this doctr ine d ep en ds lar gely on the facts of the
particular case and is addressed to the sound discretion of
the tr ia l c ou r t. T he S u p r e m e C ou r t ha s held t hat a
171
Philippine court may assume jur isdict ion over a conflict

of laws case, if it chooses to do so, provided t hat it is one to
which the part ies may convenient ly resort, t hat it is in a
posit ion to make an int elligent decision on the law and
the facts, and t hat it has or is likely to have the power to
enforce its decision. However, while it has t he discret ion
to abst ain from assuming jur isdict ion under the doctrine,
it should do so only after vital facts are est ablished to
det er m i ne w het he r special c ir cu mst ances r equ ir e the
court's desist ance.
Since this doctrine requires such a factual det ermi•
nat ion, it is more properly considered a mat t er of defense.
It should not be used as a ground for a motion to dismiss,
and, in fact, Rule 16 does not include said doctrine as a
ground. In any event , such a claim of global forum
s ho p p i n g s ho u l d r e q u ir e t hat all e l e m e n t s of litis
pendentia are pr esent and a final judgment in one case
will amount to res judicata in the other (Bank of America
NT & SA, et. al. vs. CA, et al., G.R. No. 120435,
Mar. 31, 2003). Apropos t heret o, this equit able doctrine
presupposes at least two forums in which the defendant is
a me na bl e to process and fur nis hes crit er ia for choice
bet wee n such forums (Wilson vs. Seas Shipping Co.,
D.C.Pa., 78 F. Supp. 464).
172
RUL E 8
MANNER OF MAKING ALLEG ATIONS

IN PLE AD I NG S
S e c t i o n 1. In general. — E ve r y p l e a d i n g sha l l
con t ai n in a m et h od i ca l and logi cal form, a plain,
con ci se and d i re ot - e t et et n en t of the u lt i mat e facts
on whic h the party p lead i n g r elie s for hi s c la i m or
de fe ns e , a s the cas e may be, omi t ti n g t he st at e m en t
of mer e evi d en t i a r y fact s. (1)
h i a d e f e n s e r e l i e d o n i s b ase d o n law , the
p e rt i n en t p rov i s i on s t h e reo f an d their ap p li cab i li t y
to hi m sh a l l be< cl ea rl y and c o n c i s e l y stated, (n)
NOTES
1. . As alr ead y st at ed , anne xe s to..pleadings,

-are considered part of the pleadings, but the said
pleadings mus t co nt a i n - a s u m m a r y s t a t e m e n t o f the
m a t t e r s contained in the annex and cannot just refer to
the same (Rubios, et al. vs. Reolo, 96 Phil. 984fUnrep.J;
La Mallorca vs. CA, et al, 100 Phil. 1048; see Sec. 7 of
this Rule).
2. "Ultimate facte" are the import ant and subst an•
tial facts which e it he r direct ly form the basis of the
plaint iff's pr imar y right and duty or directly make up
the wrongful acts or omissions of the defendant (Alsua
us. Johnson, 21 Phil. 308). A fact is essent ial if it cannot
be st r icken out wit ho ut leaving the st at e me n t of the
cause of action or defense insufficient (Toribio, et al. vs.
Bid in, etc., et al, G.R. No. 57821, Jan. 17, 1985). Hence,
conclusio ns, inferences, pr esu mpt io ns, and det ails of
probat ive mat t er s should not be alleged.
•. <t\-
3. "Evidentiary facts" are those which are necessary
to prove the ult imat e fact or which furnish evidence of
the existence of some other facts. They are not proper as
173
RUL E 8 REMEDIA L LAW C O M P E N D I U M S E C S . 2- 3
allegat ions in the pleadings as they may only result in

confusing t he st at e me n t of the cause of act ion or the
defense. They are not necessar y t her efor, and t he ir
exposit ion is actually pr e mat ur e as such facts must be
found and drawn from t est imo nial and other evidence.
4. The second par agr aph is a new provision and is
in line wit h t he rule t hat a part y mus t set out wit h
clarit y right in his pleading the mat t er s upon which he
int ends to rely for his defense. It has been a mat t er of
judic ial exper ience t hat often a defense is po st ulat ed
supposedly upon certain provisions of law and, wit h such
bare allegat ion, the pleader leaves i t to the court and the
opposing part y to divine for t hemselves how said legal
provisions or principles could possibly apply or relat e to
the nat ur e of the defense invoked, a st rat egy made more
irksome and undesir able where several defenses and legal
pr o vis io ns ar e invo ked. The r at io na l e for t hi s new
r equir eme nt where the defense is based on legal grounds
is the same as the r equir ement for st at ing the ult imat e
facts where the defense is based on factual grounds.
Sec . 2. Alternative causes of action or defenses. —

A p a r t y ma y se t fo rt h t w o or mo r e s t a t e m e n t s of a
c la i m o r d e f e n s e a l t e r n a t i v e l y o r h y p o t h e t i c a l l y ,
e i t h e r i n on e c a u s e o f a c t i o n o r d e f e n s e o r i n
s e p a r a t e c a u s e s o f act io n o r d e fe n s e s . Whe n t w o
o r mo r e s t a t e m e n t s ar e mad e i n t he a l t e r n a t i v e an d
on e o f t he m i f mad e i n d e p e n d e n t l y w o u l d b e
su f f ic ie nt , t he p l e a d i n g i s no t ma d e i n s u f f i c i e n t b y
t he i ns u f f i c i e nc y o f on e o r mo r e o f t he a l t e r n a t i v e
s t a t e m e n t s . (2)
Sec . 3. Conditions precedent. — In an y p l e a d i n g

a g e n e r a l a v e r m e n t o f t he p e r f o r m a n c e o r o c c u r •
r e nc e o f all c o n d i t i o n s p r e c e d e n t sha l l b e su ff ic ie nt .
(3)
174
RULE 8 MANNER OF MAKING ALLEGATIONS SECS 4 5
IN PLEADINGS
Sec. 4. Capacity. — Facts sh ow i n g the cap aci t y

of a party to su e or be sued or the a u t h ori t y of a
party to sue or be sue d in a re p re sen t at i v e cap aci t y
or the legal exi st e n c e of an organ i zed associ at i on
of p e rson s that is mad e a party, mus t be averred .
A party d e si ri n g to rai se an i ssu e as to the legal
e xi st en c e of any party or the cap aci ty of any party
to sue or be su ed in a rep re s en t at i v e capacity, shall
do so by sp eci fi c d en i al, wh ic h shall i n clu d e suc h
su p p o rt i n g p a rt i cu la rs as are p ecu li arly wi t h i n the
pleader' s kn o w l ed ge . (4)
NOTE
1. Where the plaint iffs are foreign corporat ions,

the specific cir cumst ance t hat they are duly licensed to do
business in the Philippines, or t hat the transact ion sued
upon is singular and isolated, is an essent ial part of the
element of the plaint iff' s capacit y to sue and must be
affirmatively pleaded as required by Sec. 4 of this Rule
(Atlantic Mutual Insurance Co. us. Cebu Stevedoring
Co., Inc., L-18961, Aug. 31, 1966).
Sec. 5. Fraud, mistake, condition of the mind. — In

all av e rm en t s of fraud-or mi st ake, the ci rcu mst an ce s
con st i t u t i n g fraud or mi st a ke nauet be staged with
p a rt i cu l a ri t y. Mali ce, i n t en t, k n o w l e d g e or ot he r
con d i t i on of the mind of a person may be averre d
gen erally. (5a)
NOTE
1. Fact s co nst it ut in g condit ion of the mind are

permit t ed to be averred generally as it would be difficult
to do so with part icular it y. However, fraud and mist ake
are required to be averred with part icularit y in order to
enable the opposing party to controvert the part icular
facta allegedly const it ut ing the same. This requir ement
175
RULE 8 REMEDIAL LAW COMPENDIUM SECS. 6. 7-8
a s s u m e s s ig n i f ic a nc e in mo t io n s for new t r ia l or
pet it io ns for relief from ju dg me n t or order based on
fraud or mist ake.
Sec . 6. Judgment. — In p l e a d i n g a j u d g m e n t or
d e c is io n of a d o me s t i c or fo r e ig n co ur t , ju d i c i a l or
q u a s i - j u d i c i a l t r i b u n a l , or of a bo ar d or officer, i t i s
su f f ic ie n t t o ave r t he j u d g m e n t o r d ec is io n w i t h o u t
s e t t i n g fort h m a t t e r s ho w i n g j u r i s d i c t i o n t o r e n d e r
it. (6)
NOTE
1. This provision is a necessar y consequence of the

disput able presumpt io n t hat a court, or judge act ing as
such, w h e t h e r in the P hi l ip p ine s or e l s e w he r e , wa s
act ing in t he lawful exercise of his jur isdict io n (Sec. 3(n],
Rule 131). Such judicial record may be impeached by
evidence of want of jur isdict io n in the court or judicial
officer (Sec. 29, Rule 132).
Sec . 7. Action or defense based on document. —

W h e n e v e r a n a c t io n o r defe ns e i s base d upo n a
w r i t t e n i n s t r u m e n t o r d o c u m e n t , t he s u b s t a n c e o f
suc h i n s t r u m e n t o r d o c u m e n t sha l l b e se t fo rt h i n
t he p le a d i n g , an d t he o r ig i na l o r a cop y t he r e o f sha l l
b e a t t a c h e d t o t he p l e a d i n g a s a n e x h i b i t , w h i c h
sha l l b e d e e m e d t o b e a par t o f t he p le a d i n g , o r sai d
copy ma y wit h like effect b e se t fort h i n t he p le a d i ng .
(7)
Sec . 8. How to contest such documents. — Wh e r e

a n a c t i o n o r d e fe n s e i s f o u n d e d u p o n a wr it t e n
i n s t r u m e n t , co p ie d i n o r a t t a c h e d t o t he
c o r r e s po nd in g plead in g a s provide d i n t he
p r e c e d i n g s e c t i o n , t he g e n u i n e n e s s a n d du e
e x e c u t i o n o f t he i n s t r u m e n t s h a l l b e deeme d
176
RULE 8 MANNER OF MAKING ALLEGATIONS SECS. 7-8
IN PLEADINGS
a d m i t t e d » n U M , t a » ad^CTuu pai t y + - w d e r - ^ t h ,
sp ec i fi ca l l y de-mee-tfcero, an d uviv • furUi w4mt he
clai ms to Ofi-the ~faets;^but the re q u i r e m e n t of an
oath doe s not apply whe n the ad vers e party doe s
not ap p ea r to be a party to the i n st ru m en t or wh e n
co mp l i a n c e wit h an order for an i n sp ec t i o n of the
ori gin al i n s t ru m e n t i s refu sed. (8a)
NOT E S
1. These two sections const it ute the rule on action•

able d o c u m e nt s , as d is t i ng u i s he d from e v i d e nt ia r y
document s. There are two permissible ways of pleading
an act ionable do cument , i.e., (a) by se t t ing forth the
s u b s t a nc e of suc h d o c u m e n t i n the p le a d i n g an d
att aching the document t heret o as an annex, or (b) by
set t ing forth said document ver bat im in the pleading.
Unless alleged in any of these modes, the rule on implied
admission in Sec. 8 will not apply.
2. A var iance in the subst ance of the document set

forth in the pleading and the document annexed t hereto
does not war r a n t the dismissal of the action (Convets,
Inc. us. National Deuelopment Co., 103 Phil 46). However,
the cont ent s of the document annexed are controlling.
3. . Wher e the act io na bl e do cu me n t i s

pr o per ly alleged, t he failure to deny the same r esu lt
s in the admission of t he "genuine ness and due
execut ion" of said document, except (a) when the
adverse part y was not a party to the inst rument , and
(b) when an order for the inspect ion of the document
(see Rule 27) was not complied with.
4. By "genuiwcncoo" is meant t hat the document is
not spur ious, counterfeit , or of different import on its
face from t he one execut ed hy the part y (Bough us.
Cantiveros, 40 Phil. 208), or t hat the party whose sig•
nat ure it bears has signed it and t hat at the time it was
177
RUL E 8 R E M E D I A L LAW COMPENDIU M S E C S . 7- 8
signed, it was in words and figures exactly as set out in

the pleadings (Hibberd vs. Rhode, 32 Phil. 476).
5. By "due-execution" is meant t hat the document
was signed vo lunt ar ily and knowingly by the part y whose
s ignat ur e appear s t hereo n, t hat if signed by somebody
else such r epresent at ive had the aut horit y to do so, t hat
i t was duly de liver ed, and t hat the for ma lit ies were
complied wit h (see Hibberd vs. Rhode, supra; Ramirez
vs. Orientalist Co., et al., 38 Phil. 634).
6. By t he ad miss io n of the ge nu ine ne ss and due

execut ion of a document , such defenses as t hat the sig•
nat ure was a forgery; or t hat it was unaut hor ized in the
case of an agent signing in behalf of a part ner ship or of
a cor po r at io n; or t hat , in t he case of the lat t er , t he
corporat ion was not aut horized under its chart er to sign
the inst r u me nt ; or t hat the par t y char ged signed t he
inst r u me nt in some ot her capacit y t ha n t hat alleged in
the pleading set t ing it out; or t hat it was never delivered,
are deemed cut off. But the failure to deny the genuine•
ness and due execut ion of the document does not estop
a part y from controvert ing it by evidence of fraud, mist ake,
compromise, payment , st at ut e of limit at ions, estoppel, and
want of considerat io n (1 Martin 301, cit ing Hibberd vs.
Rhode, supra, and Bough vs. Cantiveros, supra).
7. . Even wher e the opposing part y failed to

deny UNDE R oat h the a ut he nt ic it y and due execut io n
of an act ionable document properly alleged, he can still
raise t he defense in his answe r and prove at the t r ia l
t hat t here is a mist ake or imperfect ion in the writ ing, or
t hat it does not express the true agr eement of the
part ies, or t hat the agr eement is invalid or t hat t here is
an int rinsic ambiguit y in t he wr it ing, as these except ions
to the parol evidence rule (Sec. 9, Rule 130) are not cut
off by, since they are not inconsist ent wit h, the implied
admissio n of the aut hent ic it y and due execut ion of the
inst r u me nt .
178
RUL E 8 M A N N E R OF M AK I N G A L L E G A T I O N S SE C 9
I N PLEADING S
8. In an act ion for the recovery of a parcel of land

claimed by plaint iffs as t hei r her ed it ar y shar es , de•
fendant s in t heir answer at t ached, by way of defense,
copies of the deed s of sal e a l le g ed l y e xec ut e d by
plaintiffs in favor of their brot her over their shares in said
parcel of land, and a copy of the deed of sale t hereaft er
executed by said vendee in favor of the defendant s. Said
original deeds of sale and the subsequent deed of sale in
favor of the defendant s are act ionable document s as they
const it ut e t heir defense to the action. P ursua nt to Sees. 7
and 8 of Rule 8, the authenticity and due execut ion of
said deeds of sale ar e impliedly admit t ed by plaint iffs for
failure on t heir par t to file a reply under oath specifically
denying the same. This implied admission, however, does
not apply to the ot her plaint iffs who are the heirs of one
of the (deceased) original vendors since they were not
part ies to the document s. Furt her mor e, i t appears t hat
in their verified complaint , the plaintiffs alleged t hat they
never sold t heir heredit ar y shares and, consequent ly, the
defendant s were aware t hat they would be called upon to
establish the genu ineness and due execut ion of said deeds
of sale. Accordingly, the S upr e me Court relieved the
plaint iffs of the effects of t heir implied admissio n in
the int erest of just ice (Toribio, et al. us. Bidin, etc., et al.,
G.R. No. 57821, Jan. 17, 1985).
9. Where the case had been tried in disregard of the

rule on act ionable document s and plaint iff present ed oral
evidence to prove aut hent ic it y and due execut ion, and
failed to object to defendant 's evidence in refutat ion, the
rule is deemed waived (Yu Chuck us. Kong Li Po, 46 Phil.
608), especially where both part ies acted in disregard of
or overlooked the rule at the t r ial (Central Surety &
Insurance Co. us. Hodges, L-28633, Mar. 30, 1971).
Sec . 9. Official document or act. — In p l e a d i n g an

official d o c u m e n t or official ac t i t i s suff ic ie nt to
179
RUL E 8 REMEDIA L LAW C O M P E N D I U M SE C . 10
aver that the d o c u m e n t wa s i ssu e d or the act don e

in c o m p l i a n c e wit h law. (9)
Sec. 10. Specific denial. — A d e f e n d a n t mu s t

sp eci fy eac h mat eri a l a l l egat i o n of fact the t rut h
o f wh i c h h e doe s not ad mi t and , w h e n e v e r p rac•
t i cab le, shall set forth the s u b s t an c e of the mat t er s
upo n wh i c h he reli es to supp or t his d en i al. Wh ere
a d e f e n d a n t d e s i r e s to d en y on l y a p ar t of an
ave rm e n t , he shall sp eci fy so mu c h of i t as i s true
and mat e ri a l and shall d en y the re m ai n d e r . Wh ere
a d e f e n d an t i s wi t h ou t k n o w l e d g e or i n fo rm at i o n
suffi cient to form a belief as to the tru th of a mat eri al
a v e rm e n t mad e in the comp l ai n t , he shall so st at e,
and thi s shall hav e the effect of a d en i al. (10a)
NOTES
1. There are two ways of making a specific denial,

i.e., (a) by specifica lly de n yi n g t he a v e r m e n t and ,
whe ne ve r possible, set t ing forth the s ubst a nce of the
m a t t e r s r elied upo n for suc h denia l ; an d (b) by an
allegat ion of lack of knowledge or informat ion sufficient
to form a belief as to the t r ut h of the aver me nt in the
opposing part y' s pleading.
2. Where the a ver me nt s in the opposing part y' s

pleading are based on document s which are in the pos•
session of the defendant , or are pr esumed to be known by
him, or ar e r ead il y a s c e r t a i na b l e by him, a gener a l
allegat ion of lack of knowledge or informat ion t hereof on
his part will not be considered a specific denial but an
admissio n (see Warner, Barnes and Co., Ltd. vs. Reyes,
et al., 103 Phil. 662; Capitol Motors Corp. vs. Yabut, L-
28140, Mar. 19, 1970; New Japan Motors, Inc. vs. Perucho,
L-44387, Nov. 5, 1976; Gutierrez, et al. vs. CA, et al., L-
31611, Nov. 29, 1976). The defendant must aver or st at e
posit ively how it is t hat he is ignorant of the facts
180
RUL E 8 M A N N E R O F M AK I N G A L L E G A T I O N S SE C 1 1
I N PLE ADING S
alleged (Phil. Advertising Counselors, Inc. vs. Revilla,

et al, L-31869, Aug. 8, 1973). Where the answer alleges
lack of kno wledge of t he "exact amo un t due" to t he
plaint iff, the sam e will pr ec lude a ju dg me n t on t he
p le a d i ng s bu t not a mot ion for s u m m a r y ju d g me n t
if s u p p o r t e d by a d e q u a t e proof (Phil. Bank of
Communications vs. Guitar Match Mfg. Co., Inc. 102
Phil. 1162 fUnrep.J).
3. Where the answer merely reproduces the recit als

in the complaint and denies such recitals wit hout sett ing
forth the mat t er s relied upon in support of such denials
alt hough it is pract icable to do so, such answer contains
only general denials and judgme nt on the pleadings is
pro per (Sy-Quia, et al. vs. Marsman, ct al, L-23426,
Mar. 1, 1968).
4. A "negative p r e g na nt " is t hat form of denial

which at the same time involves an affirmat ive impli•
cation favorable to the opposing part y. Such a "negat ive
pr e g na nt " is in effect an admiss io n of the a ver me n t
to which it is directed (1 Martin 306). It is said to be a
denial pr eg na n t with an admission of the subst ant ia l
facts in the pleading responded to (Guevarra vs. Eala, A.C.
No. 7136, Aug. 6, 2007).
Wher e a fact is alleged wit h some qualifying or
modifying la nguage, and t he denia l is conjunct ive, a
negat ive pr egna nt exist s and only the qualificat ion or
modification is denied, while the fact itself is admit t ed
(Ison vs. Ison, 115 SW 2d. 330, 272 Ky, 836). Thus,
where the complaint alleges t hat the defendant deprived
plaint iff of possession on a claim of having purchased
the propert y from a third person, and the answer denies
merely t he "mat er ial a ver ment s" and assert s t hat the
defendant never claimed possessory rights based on the
alleged pur c has e from such t hird per son, t her e is a
negat ive pr egnant as the defendant has in effect, denied
only the qualificat ion but not the averment t hat he had
181
deprived the plaint iff of act ual possession of the land

(Galofa vs. Nee Bon Sin, L-22018, Jan. 17, 1968).
5. The same rule applies in appellat e proceedings
where the appellant ' s assignment of error is to the effect
t hat the conclusion of the Court of Appeals "is not sup•
port ed by any direct t est imo nial evidence." This is a
negat ive p r e g na n t as such co nt ent io n does not deny
the ex ist e nc e of ind ir ec t t e st i mo n i a l evide nce or of
do cume nt ar y evidence (Taniayo us. Callejo, et al., L-
25563, July 28, 1972).
6. Where the suit is brought upon the cont ract ual

obligat ion under the cont ract of carr iage cont ained in
bills of lading, such bills of lading can be cat egorized as
act ionable do cu me nt s which UNDE R t his Rule must be
pleaded eit her as causes of action or defenses, and the
genuineness and execut ion of which are deemed admit t ed
unless specifically denied UNDE R oat h by t he adver se
part y.
Even assu m ing t hat the part y aga inst whom said
pro vis io ns in the bills of lading are alleged made an
aver me nt in its responsive pleading which a mo u nt s to a
denia l, such denial i s no net he les s p r e g na n t wit h the
a d m i s s io n of the s u b s t a n t i a l fact s i n the p le a d i n g
responded to which are not squarely denied. T hus, while
the r e s po nd i n g part y object ed to the valid it y of the
a g r e e me n t co nt a ined in the bills of lading for being
contrary to public policy, the existence of the bills of lading
and the st ipulat io ns t herein are impliedly admit t ed. The
denial made by the responding part y is what is known in
the law on pleadings as a negat ive pr egna n t and is in
effect an ad m is s io n of t he aver me n t i t is d ir ect ed to
(Philippine American General Insurance Co., et al. vs.
Sweet Lines, Inc., et al, G.R. No. 87434, Aug. 5, 1992).
Sec . 11. Allegations not specifically denied deemed

admitted. — IVLatexial-averment in the c o m p l a i n t ,
182
RULE 8 MANNER OF MAKING ALLEGATIONS SEC 11
IN PLEADINGS
oth er the** t h o s e a s t o t h e- am ou n t o f u n li q u i d at e d
d a m a g e s , sh a l l b e d e e m e d a d m i t t e d wh en- no t
s p e c i f i c a l l y d en ied . A lle g at i on s o f usu r y i n a
co mp l ai n t to recove r u su ri ou s i n t e re st are d ee me d
ad mi t t ed i f not d en i e d UNDER oath, (la , R9)
NOTES
1. The following aver ment s in the complaint are

not deemed ad m it t e d even if not specifically denied:
(«rj allegat ions as to the amount of damages, (b) allegat ions
which are immat er ia l to the cause of action (Worcester
vs. Lorenzana, 104 Phil. 134), which includes conclusions
of fact and law, inferences, etc., and (c)'all allegat ions in
the comp laint where no answer has been filed by t he
defendant (Lopez vs. Mendezona, 11 Phil. 209; Worcester
vs. Lorenzana, supra).
2. The following aver me nt s in t he complaint are

deemed admitted even if specifically denied: (a) allegations
as to usury, and (b) the aut hent icit y and due execution
of act io nable do cu me nt s pro per ly pleaded where t he
opposing part y was a part y t heret o. Mere specific denial
is insufficient as the Rules require t hat such denial must
be under oath.
3. . However, i t has been held t hat the rule

t hat allegat ions of usur y are deemed admit t ed if not
denied specifically and under oath is a procedural rule
and the lack of an oath in a pleading is a defect which is
subject to waiver just as a defective or imperfect
verification may be waived. Besides, the reglement ar y
admission of the allegat ion of usury ar ising from failure
to make a denial under oat h may, like any other
admission in court, be w it hdr a w n wit h leave of court
under Secs. 2 and 3, Rule 10 which permit subst ant ia l
amendment of pleadings once as a mat t er of right when
the action has not been placed on the trial calendar or,
after the case is set for
183
hear ing, upon leave of court (Dionisio vs. Puerto, et al., L-

39452, Oct. 31, 1974).
See, in t his connect ion, the case of Liam Law vs.
Olympic Sawmill, et al., supra, cited under Note 3 of
Sec. 10, Rule 6 and the discussion t hereon.
4. Where the defendant relied solely on his defense
of res judicata and submit t ed the case for decision on
t hat issue, he is deemed to have admit t ed all the mat er ia l
a l l e g a t io n s i n the c o mp la i n t and j u d g m e n t can b e
rendered accordingly (Dominguez vs. Filipinos Integrated
Services Corp., et al., G.R. No. 58820, Sept. 30, 1982).
Sec . 12. Striking out of pleading or matter

contained therein. — Upo n mo t io n ma d e by a p a r t y
be fo r e r e s p o n d i n g t o a p l e a d i n g or, i f no r e s p o n s i v e
p l e a d i n g i s p e r m i t t e d b y t he s e R u le s , upo n mo t io n
ma d e b y a p a r t y w it h i n t w e nt y (20) da y s a ft e r t he
se r vic e o f t he p l e a d i n g upo n him , o r upo n t he co ur t ' s
o w n i n it i a t i v e a t an y t ime , t he C o u r t ma y o r d e r an y
p l e a d i n g t o b e s t r i c k e n ou t o r t hat an y s h a m o r
fa lse , r e d u n d a n t , i m m a t e r i a l , i m p e r t i n e n t , o r
s c a n d a l o u s m a t t e r b e s t r i c k e n ou t t h e r e f r o m .
(5 , R9 )
184
RULE 9
EFFECT OF FAILURE TO PLEAD
S ec t i o n 1. Defenses and objections not pleaded. —

D e f e n s e ^ 4 ^ d o b j e c t i o n s no Impleaded ei t h e r in a
mo t i o n t o d i s m i s s - o r i n the a n s w e r are d e e m e d
w a i v e d . H o w e v e r , w h e n i t a p p e a r s fro m the
p le ad i n g s or the evi d en c e on record that the cou rt
has n o j u ri s d i c t i o n ove r the su bj ec t mat t er, that
t here i s an ot h e r act i o n p en d i n g b etwee n the same
p art i e s for the sam e cau s e , or that the act i o n i s b a r r e
d b y a p ri o r j u d g m e n t o r b y s t a t u t e o f li mi t at i on s,
the Cou rt shall d i smi s s the clai m. (2a)
NOTES
1. . UNDE R t his a me nded provisio n, the

fo llowing defenses are not waived even if not raised in a
motion to dismiss or in the answer: (a") lack of
jur isdict ion over the subject mat t er; (b~) litis pendentia;
(c) res judicata; and
(d) prescript ion of the action.
2. The omnibus motion rule in the former Sec. 2 of
this Rule also provided, as an except ion t heret o, "the
failure to st at e a cause of action which may be alleged in
a lat er pleading, if one is per mit t ed, or by motion for
judgment on the pleadings, or at the trial on the mer it s;
but in the last inst ance, the motion shall be disposed of
as provided in Sect ion 5, Rule 10 in the light of any
evidence which may have been received."
That ground and the alt er nat ive bases for consider•
ing it, in the event it was not alleged in eit her a motion
to dis miss or in the answer , has been delet ed as an
except ion to the omnibus motion rule. The alt ernat ive
ways for posing t his ground for co nsider at io n of the
court in other pleadings, t hat is, in a later pleading if
185
per mit t ed or by motion for judgme nt on the pleadings,

are cont ingent on future event s and will only result in
delay. On the other hand, the failure to st at e a cause
of act io n should be cha llenged in e it he r a mot io n to
dismiss or in the answer so t hat the case will not proceed
for considerat ion, despit e such omission, upon a defective
and insufficient complaint which could have been remedied
in the first inst ance by the plaint iff duly responding to
the object ion on t hat ground. If t hat ground is correct ly
raised in a mot ion to dismiss, or in the answe r as an
a f f i r m a t i v e d e fe ns e , the Co urt ca n a lw a y s a llow
a me nd me n t of the complaint and t he case will proceed to
trial sans t hat defect. If the co mplaint is dismissed on
t hat ground, t he plaint iff can refile his co mp la int as
such dismissal does not normally const it ute an adjudicat ion
on the mer it s.
The foregoing o bs er vat io ns refer to t he s it u at io n
where the complaint or ot her init iat ory pleading fails to
allege facts co nst it ut ive of a cause of act ion. Wha t is
co nt emp lat ed, t herefore, is a failure to state a eause of
action which is provided in Sec. 1(g) of Rule 16. This-is a
mat t e r of insufficiency of the pleading. Sec. 5 of Rule 10,
which wa s also inc luded as the las t mode for -raising
the issue to the court, refers to the sit uat io n wher e the
evidence does not prove a cause of act ion. T-hisis, t herefore,
a mat t e r of insufficiency of the evidence. Failur e to st at e
a cause of act ion is different from failure to prove a cause
of action. The-remedy in the first is to move for dismissal
of the pleading, while t he remedy in the second is te-demur
to the evidence, hence reference to Sec. 5 of Rule-1-0 has
been e liminat ed in t his sect ion. The procedur e would
consequent ly be to require the pleading to st at e a cause
of action, by t imely objection to its deficiency; or, at the
trial, to file a de mur r e r to the evidence, if such mot ion is
war r ant ed .
186
RULE 9 EFFECT OF FAILURE TO PLEAD SEC. 1
3. The objection on jur isdict ional grounds which is

not waived even if not alleged in a motion to dismiss or
the answer is lack of jur isdict ion over the subject-matter.
Lack of jur isdict ion over the nature of the action has been
eliminat ed in Rule 16 of these revised Rules, alt hough
t hat objection may possibly be raised in other pleadings
or proceedings. Lack of jur isdict io n over the subject-
mat t er can always be raised anyt ime, even for the first
time on appeal, since jur isd ict io na l issues cannot be
waived but subject, however, to the principle of estoppel
by laches.
4. The'defense of litis pendentia has been included

in t he except ions to the gener al rule on waiver in this
ame nded sect ion by reason of the fact that , since the
other case is still pending, a resolut ion of the objection
raised on this ground should properly await the resolut io n
of and the development s in the other pending case. Upon
the o ccur rence of t he r e le va n t co nt ing enc ies in t hat
ot her case, t his object ion may t hen be raised, unles s
already submit t ed to the court, which by then would be
in a bet t e r posit io n to appr eciat e the mer it s of t his
objection.
5. Res judicata and prescript ion of the claim have

also been added as except ions since they are grounds
for ext inguis hme nt of the claim. It would appear to be
unduly t echnical, if not contrary to the rule on unjust
enr ic hme nt , to have the defending part y respond all
over again for the same claim which has already been
resolved or is no longer recoverable under the law. It is
worth ment ioning in t his connect ion t hat, in Sec. 5 of
Rule 16 as a me nded, an order gr ant in g a mot ion to
dismiss on the gro unds, inter alia, of res judicata or
prescript ion shall bar the refiling of the same action or
claim.
187
6. . The p r e s e nc e of an y of t hes e four

g r o u nd s aut horizes the court to motu proprio dismiss
the claim, t hat is, the claims assert ed in a complaint ,
count er claim, cro ss- c la i m, t hir d ( fourt h, et c. ) - par t y
c o mp la i n t or complaint - in- int er vent io n (see Sec. 2, Rule
6). In order t hat it may do so, it is necessary t hat the
const it ut ive facts of such grounds, if not in the answer
with evidence duly a dd uc e d t her e fo r , sho ul d a p p e a r
i n the ot he r pleadings filed or in the evidence of record
in the case.
7. Specifically wit h respect to the defense of pre•

scr ipt ion, t he pr es e n t provision is s im ilar to the rule
ado pt ed in civil cases, but diss imilar to t he rule and
rat io nale in cr iminal cases. In civil cases, it has been
held t hat the defense of prescr ipt io n may be considered
only if t he same is invoked in the answer, except where
the fact of prescr ipt ion appear s in the allegat ions in the
co mp la int or t he evidence pr e se nt e d by t he plaint iff,
i n whic h case suc h de fe ns e i s not dee me d wa ive d
(Ferrer vs. Ericta, et al., L 41761, Aug. 23, 1978; Garcia
vs. Mathis, et al., L-48577, Sept. 30, 1980). It would
t hu s appea r t hat the no n-waiver i s d e pe nde n t on the
t ime liness of invocat ion of the defense, or where such
defense is a mat t e r of record or evidence.
8. In cr iminal cases, the same general rule on waiver

of any ground for a motion to quash also obt ains where
the accused fails to assert the same eit her because he
did not file such mot ion before he pleaded or failed to
allege such ground t her e in. E xcept ed from t his rule,
ho wever , is the gr o un d of pr e s cr ipt io n e it he r of t he
offense or the penalt y, t hat is, t hat the criminal action or
liabilit y has been e xt ingu ished (Sec. 9, Rule 117). This
provision does not requir e the qualificat ions of season•
abl e i n vo c a t io n or r e co r d e d fact of the g r o u n d of
prescr ipt io n as discussed above for civil act ions. Inst ead,
said provision is evident ly based on the rulings of the
S u p r e m e Co ur t t hat o bje ct io n o n the g r o u n d o f
188
RUL E 9 E F F E C T O F F AI L U R E T O P L E A D SE C . 2
pr e s cr ipt io n of the cr ime is not waived even if not

raised before the plea, since prescript ion is a subst ant ive
r igh t whic h c a nno t be de feat e d by p r o vis io n s of a
procedural law (People vs. Moran, 44 Phil. 387; People
vs. Castro, 95 Phil. 462). For t hat mat t er, such objection
may even be raised for the first time on appeal (People
vs. Balagtas, 105 Phil. 1362 fUnrep.J; Escano, et al. vs.
Geronimo, [CA], 60 O.G. 8497).
Sec. 2. Compulsory counterclaim, or cross-claim, not

set up barred. — A c o m p u l s o r y c o u n t e rc l a i m , or a cross-
clai m, no t se t up sh all be barred. (4a)
NOT E S
1. See notes under Secs. 7 and 8, Rule 6.

2. Where, in a first act ion against him, the com•
pulsory co unt er cla im of defe ndant was dismissed for non-
payment of docket fee, such dismissal is not a bar to
his filing of the same count erclaim in a subsequent act ion
i nst it ut e d by the plaint iff involving t he same su bje ct -
mat t er . The d is m is sa l of said co unt er c la i m does not
co nst it ut e res judicata because it was not a det erminat io n
on the merit s of the count erclaim. Also, t he d is m i s s a l
of said c o u nt e r c l a i m ha vin g bee n u nq u a l i f i e d , he nc e
w it ho u t p r e ju d ic e , i t does not const it ut e an adjudicat io n
on the mer it s since this rule in Sec. 2, Rule 17 applies
not only to a complaint but also to a count erclaim which
part akes of the nat ure of a complaint . This is aside from
the considerat ion t hat , since the dismissal of the
count erclaim was premised on the postulat e t hat for non-
payment of the docket fee the court did not acquire
jur isdict ion t hereover, t hen with much more reason can
t her e be no invocat ion of res judicata, not to speak of the
fact t hat it was error for the t r ia l Co ur t t o or de r suc h
d is m i s s a l s ince the payment of docket fees is required
only for permissive,
189
not compulsory, counterclaims (Meliton vs. CA, et al.,

G.R. No. 101883, Dec. 11, 1992).
Sec. 3. Default; declaration of. — If the d e f e n d i n g

p art y fai l s t o a n s w e r w i t h i n the t i m e a l l o w e d
t h e r e f o r , the C o u rt s h a l l , u p o n m o t i o n o f the
c la i mi n g p art y wit h n ot i ce to the d ef e n d i n g party,
and p roo f o f su c h fai lu re, d e c l a r e the d e f e n d i n g
party in d efau lt. Th e reu p on , the court shall p ro ceed
t o re n d e r j u d g m e n t g r a n t i n g the cl a i m a n t su c h
relief a s his p l e a d i n g ma y warran t , un le s s the cou rt
i n its d i s c r e t i o n req u i re s the c l a i m a n t t o su b mi t
e v i d e n c e . S u c h r e c e p t i o n o f e v i d e n c e ma y b e
d e l e g a t e d to the clerk of court, ( la , R18)
(a) Effect of order of default. — A p arty in d efau l t
shall be en t i t le d to n oti ce of s u b s e q u en t p ro c eed i n g s
but no t to tak e part in the trial. (2a, R18)
(b) Relief from order of default. — A party d ecla re d
in d efau l t ma y at an y tim e after n ot i c e t h e re o f an d
before j u d g me n t file a mot ion UNDER oat h to set
asi de the ord e r o f d efau l t upo n p rop e r s h o w i n g that
his f a i l u r e t o a n s w e r wa s du e t o f r a u d , a c c i d e n t ,
mi st a k e or e xc u s a b l e n e g l i g e n c e and that he ha s a
m e r i t o r i o u s d e f e n s e . I n su c h case , the ord e r o f
d e f a u l t ma y b e se t a s i d e o n s u c h t e r m s an d
c o n d i t i o n s a s the j u d g e ma y i mp os e i n the i n t eres t
of j u st i ce . (3a, R18)
(c) Effect of partial default. — Whe n a p le ad i n g
a s s e rt i n g a clai m st at e s a com mo n cau s e of act i o n
a g a i n s t seve ra l d e f e n d i n g p art i es , som e o f wh o m
a n s w e r and the ot h er s fail to do so, the Cou rt shall try
the cas e agai n s t all upo n the a n s w e r s th u s filed and
ren d e r j u d g m e n t upo n the e v i d e n c e p re s e n t e d . (4a,
R18)
190
RUL E 9 E F F E C T O F F AI L U R E T O P L E A D SE C . 3
(d) Extent of relief to be awarded. — A j u d g m en t

ren d e red agai n s t a party in d efau lt shall not excee d
the amou n t or be d i fferent in kind from that prayed
for nor awar d u n li q u i d at e d d amages . (5a, R18)
(e) Where no defaults allowed. — If the d e f e n d i n g
party i rfan act i on for a n n u l m e n t or d ecla rat i on of
nullity of ma rri ag e or for legal sep a rat i on fails to
a n s w e r , the Cou rt sh a l l o rd e r the p r o s e c u t i n g
at t orn ey to i n ve st i g at e wh e t h e r or not a col lu si on
b e t w e e n the p a r t i e s e x i s t s , an d i f t h e r e i s n o
col lu si on , to i n t e rv en e for the State in order to see
to i t that the evi d e n c e su b mi t t e d i s not fab ri cated.
(6a, R18)
' ' ^ N O T E S ' " —
1. An order of default should be dist inguished from

a judgment by default. An order of default is issued by
the court, on pla int iffs motion and at the st art of the
pr o ceeding s, for failur e of t he de fe nda n t to file his
responsive pleading seasonably. It is only t hereaft er,
when the evidence for the plaint iff has been received ex
parte, that the court renders a judgment by default on
the basis of such evidence.
2. This section provides for the ext ent of the relief
t hat may be awarded in the judgme nt by default, i.e.,
only so much as has been alleged and proved. The court
acts in excess of jur isd ict io n if it awards an amo un t
beyond the claim made in the complaint or beyond t hat
proved by the evidence. Furt her mor e, as amended, no
unliquidat ed damages can be awarded and said judgment
shall not exceed the amo unt or be different in kind from
that prayed for. If the claim is not proved, the case should
be dismissed (Pascua, et al. us. Florendo, et al., L-38047,
April 30, 1985).
191
3. Failur e to file a responsive pleading wit hin the

r eg le me nt ar y period, and not failure to appea r at the
hear ing, is the sole ground for an order of default (Rosario,
et al. vs. Alonzo, et al, L-17320, June 29, 1963), except
the failure to appear at a pre-t ria l conference wher ein t he
effects of a de fau lt on the par t of t he de fe nd a n t are
followed, t hat is, the plaint iff shall be allowed to pr esent
evidence ex parte and a judgment based t hereon may be
r ender ed against the defendant (Sec. 5, Rule 18). Also,
a default judg ment may be rendered, even if t he defendant
had filed his answer, under t he c ir cu mst ance in Sec. 3(c),
Rule 29.
4. The court cannot motu proprio declare a defen•

dant in default (Viacrusis vs. Estenzo, L-18457, June 30,
1962; Trajano, et al. vs. Cruz, et al, L-47070, Dec. 29,
1977). T her e mus t be a mot ion to t hat effect by t he
plaint iff wit h proof of failure by the de fe nda nt to file
his responsive pleading despit e due notice (Soberano vs.
MRR Co., L-19407, Nov. 23, 1966; Sarmiento vs. Juan,
G.R. No. 56605, Jan. 28, 1983). Former ly, the defendant
did not have to be served wit h notice of the mot ion to
have him declared in default (Pielago vs. Generosa, 73
Phil. 634, based on Sec. 9, Rule 27 of the old Rules and
reproduced subst ant ia l l y in Sec. 9, Rule 13; De Guzman
vs. Santos, et al, L-22636, June 11, 1970, cit ing Duran
vs. Arboleda, 20 Phil. 253; Inchausti & Co. vs. De Leon,
24 Phil. 224; Monteverde vs. Jaranilla, 49 Phil. 297;
Manila Motor Co. vs. Endencia, 72 Phil. 130; The Phil.
British Co., Inc., et al. vs. Delos Angeles, etc., et al, L-33720-
21, Mar. 10, 1975). An i mpo r t a n t change has been
effected by t he pr e se nt a me nd me nt s in the sense t hat an
order of default can be made only upon mot ion of t he
claiming part y and wit h the corresponding notice to the
defending part y.
On the ot he r hand , UNDE R t he rule on s u m m a r y
procedure, no default order is rendered or required as a
motion to declare the defendant in default is prohibit ed;
192
RULE 9 EFFECT OF FAILURE TO PLEAD SEC. 3
and a default judgment may be rendered by the court

motu proprio or on motion of the party assert ing the claim.
5. The defendant who files his answer in court in
time but failed to serve a copy thereof upon the adverse
part y may validly be declared in default (Gonzales vs.
Francisco, 49 Phil. 747; Banares vs. Flordeliza, et al., 51
Phil. 786).
6. . The fact t hat t he defe nda nt was d eclar ed

in default is of no mo ment when the plaint iff would
not have been ent it led to relief since his complaint did
not state a cause of action, hence the same should be
dismissed (Reyes vs. Tolentino, et al., L-29142, Nov. 29,
1971).
7. It is wit hin the discret ion of the trial court to set

aside an o r de r of defau l t and per m i t t he filing of
d e fe nd a nt ' s ans we r even be yo nd t he r e g l e m e nt a r y
period, or to refuse to set aside the default order where it
finds no just ificat ion for the delay in the filing of the
answe r (Malipod vs. Tan, L-27730, Jan. 21, 1974).
However, defendant ' s answer should be admit t ed where
it was filed before he had been declared in default and
no prejudice could have been caused to plaint iff, as
default ju dg me nt s are generally disfavored (Trajano,
et al. vs. Cruz, et al, supra). Where the answer is filed
beyond the r egle ment ar y period but before the defendant
was declared in default, and t here is no showing t hat
defendant int ended to delay the case, the answer should
be admit t ed (Cathay Pacific Airways, Ltd. vs. Romillo,
etc., et al, G.R. No. 64276, Mar. 4, 1986). Also, where
the failure of defendant to seasonably file her answer
is excusable and the lifting of the default order will not
in any way prejudice plaint iff's subst ant ial right s, the
court should apply the Rules liberally and set aside the
default order (Santos vs. De la Fuente Samson, et al, L-
46371, Dec. 14, 1981; cf. Akut vs. CA, et al, L-45472,
Aug. 30, 1982; Azul, et al. vs. Castro, et al, G.R.
No. 52241, Nov. 19, 1984).
193
8. A mot ion to lift an order of default should be

under oath or verified and accompanied by an affidavit of
mer it s. The r e qu ir e me nt s of Sec. 3 of t his Rule are
pract ically ident ical to those of Sec. 3, Rule 38 (The Phil.
British Co., Inc. vs. De los Angeles, etc., et al., supra;
Claridad, et al. vs. Santos, et al., L-29594, Jan. 27, 1983).
However, if t he mot ion to lift the order of default is
grounded on the very root of the proceedings, i.e., invalid
service of summo ns on the defendant , affidavits of mer it s
are not necessary (Ponio vs. IAC, et al., G.R. No. 66782,
Dec. 20, 1984).
Also, if the motion to lift an order of default is under
oat h and cont ains the reaso ns for the failure to answer,
as well as the prospect ive defenses, a s epar at e affidavit
of mer it s an d a ver ificat io n ar e not nec e s sar y (Lim
Tanhu, et al. vs. Ramolete, et al, L-40098, Aug. 29, 1975;
Azul, et al. vs. Castro, et al., supra).
9. Where a motion to lift an order of default is denied

and a mot ion for the reconsiderat io n of said denial order
is filed based on su bst ant ia l l y t he same grounds, said
motion for reconsider at ion is not pro forma as it is directed
against an int er lo cut ory, an d not a final, order and the
reit erat ion of the same grounds seeks a second look by the
court on the mer it s of said grounds (BA Finance Corp. vs.
Pineda, et al., G.R. No. 61628, Dec. 29, 1982).
10. The mot ion to lift the order of default, aside from
the r equ ir e me nt s in Sec. 3 of this Rule, must furt her show
t hat t he defe nda nt ha s a mer it o r io us defense or t hat
s o m e t h i n g would be ga ine d by ha vin g the o r de r of
default set aside (Carandang vs. Cabatuando, et al., L-
25384, Oct. 26, 1973). Ot herwise, and if the motion is not
acco mpanied by affidavits of mer it s, it may properly be
denied (Ong Peng vs. Custodio, L-14911, Oct. 26, 1961; The
Phil. British Co., Inc., et al. vs. De los Angeles, etc., et
al., supra).
194
RUL E 9 E F F E C T O F F AI L U R E T O P L E A D SEC . 3
11. . The former rule was t hat where a part y

had moved to set aside the order of default, he was
ent it led to copies of all p le a d i ng s and or der s filed
and issued t hereaft er. If he had not done so, he was
still ent it led to be served with copies of subst ant ially
amended or sup• plement al pleadings, as well as final
orders or judgment s. The qualificat ions were rat ionalized
as follows:
He mus t be served wit h a me nded p le adings and
supple ment al pleadings as he may be ent it led to plead
t hereto. Thus, if the defendant was declared in default
upon an original complaint , the filing of t he amended
co mplaint r esu lt ed in t he w it hdr a wa l of the or ig ina l
complaint , hence the defendant was entit led to file an
answer to the amended complaint as to which he was not
in default. If the supple me nt al pleading int roduced new
claims, he was ent it led to plead t hereto as jurisdict ion had
not been acquired over him in respect thereof.
He had to be served with a copy of the judgment by
default as he had the right to appeal therefrom and in
said appeal he may, aside from att acking the propriet y
of the relief t herein awarded, assign as error the order of
the court declar ing him in default, or refusing to set
aside such order, or denying a motion for new trial as
the case may be.
This wa s bec aus e t he n Sec. 2 of Rule 18 r ead:
"Except as provided in Sect ion 9 of Rule 13, a part y
declared in default shall not be ent it led to notice of
subsequent proceedings, nor to take part in t he trial."
This rule wa s co ns ider ed too har sh , hence, as now
amended, par. (a) of t his section simply provides t hat
while a part y in default cannot take part in the trial, he is
nonet heless ent it led to notice of subsequent proceedings
wit hout the qualifications under the former pract ice.
12. If the court sets aside the order of default, the
defendant is restored to his st anding and rights in the
action. However, proceedings already taken are not to
195
RUL E 9 R E M E D I A L LAW COM PENDIU M SE C . 3
be dist urbed (Jaime vs. Maniego, 101 Phil. 828), alt hough
it is wit hin t he discret ion of the court to re-open the
evide nc e s u b m it t e d by the pla int iff an d ena bl e the
defendant to challenge the same, as by cross-examinat io n
of plaint iff' s w it ne ss es or int r o ducing co u nt er va i l i ng
evidence (see Denso [Phil.], Inc. vs. IAC, et al., G.R.
No. 75000, Feb. 27, 1987). The lifting of an order of default
does not revert the case to its pre-trial st age, much less
render a second pre-trial mandat ory (DBP vs. CA, et al., L-
49410, Jan. 26, 1989).
13. Under the former procedure, and the same would

hold t rue under the pr esent amended Rules, the alt er•
nat iv e and succe ss ive r e me d ie s of a par t y pr o per l y
declared in default in the former Court of First Inst ance
were: (1) He may file a verified motion to set aside t he
order of default at any time after discovery t hereof and
before judg me nt ; (2) If he did not file one or the same
was denied, he could file a motion for new trial at any
time after service of judgment by default and wit hin 30
days t herefrom; (3) If he failed to file said mot ion or the
same was denied, he could perfect his appeal from and on
the mer it s of said judg me nt by default wit hin t he balance
of said 30-day period; and (4) If he failed to t ake any of
such st eps, he could file a pet it ion for relief from judgme nt
wit hin 60 days from notice of the judg m ent but wit hin 6
mo nt hs from ent r y thereof (see Lina vs. CA, et al., G.R.
No. 62397, April 9, 1985).
It should be noted, however, t hat under B.P. Blg. 129
and t he I nt er im Rules, the r egle ment ar y period to appeal
has been uniformly set at 15 days, except in habeas corpus
cases for which t he 48-hour period has been maint ained,
and in specia l pr o ceedings or cases wher e i n mu lt ip le
appeals are per mit t ed and in which cases the r egle ment ar y
period is still 30 days. Considering the fact t hat the period
for filing a motion for new t rial is cot ermino us wit h the
r egleme nt ar y period for appeal, the 30-day periods for the
seco nd an d t hir d r e me d ie s above st at e d would now
196
apply only to special proceedings and cases suscept ible of

mult iple appeals, with the first and fourth remedies being
available as before. In all ot her civil act ions, all the
abovest at ed remedies from a default judgment are still
available, it being understood, however, that the remedy
of new t rial and appeal should now be availed of wit hin
15 days from receipt of the judgment by default.
14. Where however, the defendant was improperly

declared in default, as where the reglement ar y period to
answer had not yet expired, he can, if such default order
is not lifted, elevat e the mat t e r by cert iorar i wit hout
wait ing for the default judgment (Viacrusis vs. Estenzo, L-
18457, June 30, 1962; Pioneer Insurance & Surety Corp.
vs. Hontanosas, L-35951, Aug. 31, 1977). If a default
judg ment was already rendered, he can also resort
immediat ely to cert iorari as his challenge is on the nullit y
of both the order and the judgment by default and not
on the mer it s or correct ness of the judgment (Matute vs.
CA, et al., L-26751, Jan. 3, 1969), especially where a writ
of execut ion was already issued, hence appeal would not
be a speed y and adequ at e remed y (Omico Mining &
Industrial Corp. vs. Vallejos, et al., L-38974, Mar. 25,
1975; Zenith Insurance Corp. vs. Purisima, et al., G.R.
No. 57535, May 24, 1982).
15. It has also been held t hat while, as a general
rule, cert iorari may not be availed of where an appeal is
available and an appeal lies from a judgment by default,
nevert he less if t here was grave abuse of discret ion on the
part of the trial court, the special civil action of cert iorari
may be availed of by the aggr ieved part y as this is an
except ion to said general rule. Cert iorari would provide a
more speedy and adequat e remedy since the aggrieved
part y in a default judgment had no opportunit y to adduce
evidence in the trial court; hence, on appeal, only the self-
serving evidence present ed by the plaintiff in the ex parte
reception thereof would be considered (Continental Leaf
197
Tobacco [Phil.], Inc. vs. CA, et al., G.R. No. 69243,

Nov. 22, 1985).
16. A pet it io n for relief from the order of default
may be filed at any t ime after discovery of the default
order and before judgme nt (Turqueza vs. Hernando, etc.,
et al., G.R. No. 51626, April 30, 1980). Said order of
default , however, is not appealable as t he same is an
int er lo cut or y order (Vda. de Hoyo-a, et al. vs. Virata,
et al., G.R. No. 71171, July 23, 1985) and the same is t rue
wit h an order denying a motion for the r eco nsider at io n
of the default order.
17. I t ha s also been held, ho wever, t hat while a

default order, being int er locut ory, is not appealable, an
order denying a pet it io n for relief, seeking to set aside
an o r de r of defau lt , i s not mer e l y i n t er lo c ut o r y bu t
final and, t her e fo r e, appea la ble (Rodriguez, et al. vs.
IAC, et al, G.R. No. 74816, Mar. 17, 1987).
18. It should not be overlooked t hat par. (c) of t his

sect io n, which e nu nc iat e s t he rule on par t ia l default ,
does not apply wher e t he defending part ies are joint ly
sued or imp leaded UNDE R separ at e causes of act ion. I t
co nt emp lat es a claim or suit upon a commo n cause of
act ion aga inst sever al defending par t ies at least one of
whom files an answer while t he ot hers are in default.
19. If t he a nswer ing defendant succeeds in defeat ing

the plaint iff s claim, such result inur es also to the benefit
of the default ing defendant s (Velez vs. Ramos, 10 Phil.
788; Bringas vs. Hernando, G.R. No. 51933, Sept. 24,
1986).
20. . Wher e a co - de fe nda n t who filed hi s

a ns w e r died and the case was dismissed as to him, t he
answer he filed does not inur e to the benefit of the
defendant who did not file his own answer. Neit her will
the rule apply w he r e t he d e fe ns e s a l le g e d b y the
d e f e n d a n t wh o
198
answered are personal to him (Luzon Surety Co., Inc. us.

Magbonuo, et al., L-43851, July 30, 1976).
21 . The defendant who failed to answer shall be

declared in default and is deprived of the right to take
part in the trial and, in effect, he submit s to what ever
decision may be rendered on the basis of the answer and
evidence adduced by the answer ing co-defendant (Lim
Tanhu us. Ramolete, etc., et al., L-40098, Aug. 29, 1975;
cf. Co us. Acosta, et al, G.R. No. 64591, Jan. 17, 1985).
22. There is no provision of the Rules disqualifying

a part y declared in default from t aking the wit ness stand
for his co - de fe nd a nt s. The specific e n u me r a t io n of
disqua lifie d w it ne s s e s exc ludes the operat io n of the
causes of disabilit y ot her t ha n to those ment ioned in
Secs. 19, 20 and 21 , Rule 130. The provision of t hen
Sec. 2, Rule 18 to the effect t hat "a part y declared in
default shall not be ent it led to notice of su bseque n t
proceedings nor to take part in the trial" (now, par. [a]
of this sect ion, as amended) means only the forfeiture of
the default ing part y' s right s as a party lit igant and not
a disqualificat ion from merely test ifying as a wit ness.
The incident al benefit of giving the party in default the
opport unit y to pr esent evidence which may event ually
redound to his advant age, t hrough his co-defendants, is
of minor consequence. There is no reason why the non-
d e f a u l t i n g d e f e n d a n t s sho ul d be depr ive d of the
test imony of the part y in default and thereby also suffer
the co nsequences of the lat t er ' s pro cedur al omissio n
(Cauili, et al. us. Florendo, et al., G.R. No. 73039, Oct. 9,
1987, and cases jointly decided therein).
23. . Under par. (c) of this section, when a

common cause of action is alleged against several
defendant s, two of whom seasonably filed their answers
while the others were declared in default, the answers of
the former inure to the benefit of t he lat t e r and all
the d e fe nd a nt s ,
199
default ed and not default ed, share a common fate in the

action. It is not within the aut horit y of the trial court to
divide the case before it by first dismissing the same, on
mot io n of t he plaint iff, as aga ins t t he no n- de fau lt e d
defendant s and t hereaft er hearing it ex parte as against
the d e fa u lt e d d e f e n d a n t s and r e n d e r i n g a de fa u l t
judg ment against t hem. This is an unfair procedure and
depr ives t he default ed de fe nda nt s of due pro cess as
they are t hereby denied the benefit of the answer and the
evidence which could have been present ed by t heir non-
default ed co -defendant s, and which could be considered
in favor of all. Furt her, said order of dismissal divested
the t rial court of the jur isdict io n to proceed with the case
since all the defendant s are obligors in solidum, hence
indispensable part ies (Lim Tanhu, et al. us. Ramolete, etc.,
et al., supra).
24. . The p e r t i n e n t pr o vis io n s of the Civil

Code provided as follows—
"Art. 88 . No judg me nt annulling a mar r iage shall
be pr o mu lg at e d upon a st ipu lat io n of facts or by
confession of judg ment .
In case of no n- appearance of the defendant the
pr o v is io n s of ar t ic l e 101 , p a r a g r a p h 2 , shal l be
observed."
"Art. 101. No decree of legal separat ion shall be
p r o m u l g a t e d upo n a s t i p u l a t i o n of fact s or by
confession of judgment .
In case of no n- appear ance of the defendant, the
court shall order the prosecut ing at t orney to inquire
whet her or not a collusion bet ween the part ies exist s.
If t here is no collusion, the prosecut ing at t or ney shall
int er vene for the St at e in order to t ake care t hat the
evidence for the plaint iff is not fabricated."
and, UNDE R the said Code, every collusion to obt ain a
decree of legal separ at io n or of annu l m e nt of mar r iage
200
was void and of no effect (Art. 221).

The int er vent io n of the prosecut ing at t orney was,
therefore, proper and required where the defendant does
not answer or, even if he has answered, he does not appear
personally or by counsel at the trial.
The equivalent provisions of the Family Code are to
this effect:
"Art. 48. In all cases of a nnu lment or declarat ion
of absolute nullit y of marr iage the court shall order
the prosecut ing at torney or fiscal assigned to it to
appear on behalf of the St at e to take steps to prevent
collusion bet ween the part ies and to take care t hat
evidence is not fabricated or suppressed.
I n the case s r e fe r r e d t o i n the p r e c e d in g
p a r a g r a p h , no ju d g me n t shall be based upon a
st ipulat io n of facts or confession of judgment ."
"Art. 60. No decree of legal separat ion shall be

based upon a st ipulat io n of facts or a confession of
judg ment .
In any case, the court shall order the prosecut ing
attorney or fiscal assigned to it to take steps to prevent
collusion bet ween the part ies and to take care t hat
the evidence is not fabricated or suppressed."
25. . A default judgment rendered in an
annu lme nt case, even if procedurally erroneous, is
nevert heless a valid judg ment (De la Cruz vs. Ejercito, L-
40895, Nov. 6, 1975).
201
RULE 10
AM ENDED AN D S UPPLEM ENTA L P LE A DI NG S
S ect i o n 1. Amendments in general. — P l e a d i n g s

ma y b e a m e n d e d b y a d d i n g o r s t r i k i n g ou t a n
a l l e g a t i o n o r the n a m e o f an y p a r t y , o r b y
c o r re c t i n g a mi st a k e in the nam e of a part y or a
m i s t a k e n o r i n a d eq u at e al l ega t i o n o r d e s c ri p t i o n
in an y ot h e r resp ect , so that the act u a l meri t s of
the c o n t r o v e r s y ma y s p e e d i l y b e d e t e r m i n e d ,
w i t h ou t regar d t o t e c h n i c a l i t i e s , an d i n the mos t
e xp e d i t i o u s and i n e xp e n s i v e man n e r . (1)
Sec. 7. Filing of amended pleadings. — Whe n an y

p l e a d i n g i s a m e n d e d , a ne w cop y o f the e n t i r e
p l e a d i n g , i n c o r p o r a t i n g the a m e n d m e n t s , w h i c h
shall be i n d i cat e d by ap p rop ri at e m arks , sh all be
filed. (7a)
NO TES
1. Ame nd me nt s to a pleading should be indicated in

the amended pleading, as by underscor ing, enclosing t hem
in quot at ion marks, put t ing t hem in capit al let t ers, and
so forth, as would make t hem readily evident .
2. . The amended plead ing super sedes the

original p lead in g which i s dee me d w i t hd r a w n and no
lo nger const it ut es part of the record. However, the filing
of the a me nded pleading does not ret roact to the dat e
of the filing of the original, hence, the st at ut e of
limit at ions runs unt il the filing of the a me nd me n t
(Ruymann, et al. vs. Director of Lands, 34 Phil. 429). But
an a me nd me n t which merely supple me nt s and amplifies
facts originally alleged in the complaint relat es back to
the dat e of the co mme nce me nt of the act ion and is not
bar r ed by the
202
RUL E 10 A M E N D E D AN D S E C S . 1, 7
SU P P LEM EN T A L PLEADING S
st at ut e of limit at ions which expired after the service of

the original complaint (Panay Electric Co. vs. CA, et al.,
G.R. No. 59647, Dec. 11, 1982). It is the actual filing in
court t hat co nt ro ls, and not t he dat e of t he for mal
admission of the amended pleading (Republic vs. Marsman
Dev. Co., L-18956, April 27, 1972).
3. Where t he original complaint st at es a cause of

act io n bu t does i t i mp er fe ct l y , an d a ft e r w a r d s an
ame nded compla int is filed correct ing the defect, the
plea of prescr ipt io n will relat e to the time of the filing of
the original complaint (Pangasinan Trans. Co. vs. Phil.
Farming Co., Ltd., 81 Phil. 273). However, such rule
would not apply to the part y who was impleaded for the
first time in the amended complaint which was filed after
the period of prescript ion had already lapsed, hence t he
amended complaint must be dismissed as to such part y
who was t hus belatedly included in the action (Aetna
Insurance Co. vs. Luzon Stevedoring Corp., L-25266,
Jan. 15, 1975; Seno, et al. vs. Mangubat, et al., L-44339,
Dec. 2, 1987).
4. The rule is t hat amend ment s should be liberally

allowed (Cese vs. GSIS, 109 Phil. 306). This liberalit y at
the out set of the action decreases as the case moves to its
t erminat ion (Salvador vs. Frio, L-25352, May 29, 1970).
However, a me nd me nt s to pleadings may be per mit t ed
even for the first time on appeal if, wit hout changing the
cause of action or causing unfair prejudice to the other
part y, the pur po se is to (a) correct a defect of part y
plaintiff, as where it is merely to include the husband of
the plaint iff wife (Cuyugan vs. Dizon, 79 Phil. 81); or
(b) su bst it ut e the name of the real part y in int er est
(Palacio vs. Fely Trans. Co., L-15121, Aug. 31, 1962; Chua
Kiong vs. Whitaker, 46 Phil. 578; Alonso vs.Villamor, 16
Phil. 320). Thus, since a sole proprietorship is a business
organizat io n wit ho ut jur idical per so nalit y to sue, an
amendment to subst it ut e the owner thereof as plaint iff
203
is only a for mal a m e nd m e n t (Juasing Hardware vs.

Mendoza, et al., G.R. No. 55687, July 30, 1982). These
are aut hor ized as formal a me nd me nt s under Sec. 4 of
this Rule.
Sec . 2. Amendments as a matter of right.—A party

ma y a m e n d hi s p l e a d i n g o n c e a s a m a t t e r o f
ri gh t a t an y t i m e b efo r e a r e s p o n s i v e p l e a d i n g
i s se rv e d or, in the cas e of a rep ly , at an y t i m e
wi t h i n te n (10) day s after i t i s served . (2a)
NO TES
1. Ame nd me nt for the first time is a mat t e r of right

before a responsive pleading is filed or, in the case of a
reply, w it hin 10 days aft er i t was ser ved. Ho wever,
a m e n d m e n t for the second or subsequent t im e mus t
always be wit h leave of court even before a responsive
pleading is filed or before the case is set in the ca lendar
of the court.
Where some but not all the defendant s have filed t heir
answer s, the plaint iff may amend his complaint , once as
a mat t e r of right , in respect to the claims assert ed only
against the no n- answer ing defendant s, but not as to the
claims asser t ed against the ot her defendant s who have
answer ed (Siasoco, et al., vs. CA, et al., 362 Phil. 525,
Republic vs. Africa, et al, G.R. No. 172315, Aug 28, 2007).
2. Even aft er a mot ion to dismiss has been filed by

de fe nda nt (Paeste vs. Jaurigue, 94 Phil. 179) or such
mot ion has been submit t ed for decision (Republic vs. Ilao, L-
16667, Jan. 30, 1962), the plaint iff can still a me nd his
co mplaint as a mat t e r of right , since a mot ion to dismiss
is not a responsive pleading wit hin t his rule. An error
of the court in refusing such a me nd me n t is controllable
by ma nd a mu s (Breslin, et al. vs. Luzon Stevedoring Co.,
et al, 84 Phil. 618; Ong Peng vs. Custodio, L-14911,
204
RUL E 10 A M E N D E D AN D SE C . 2
Mar. 25, 1961; cf. Dauden-Hernandez vs. De los Angeles L-

27010, April 30, 1969).
3. Ame nd ment of the complaint may be allowed even

if an order for its dismissal has been issued as long as the
motion to amend is filed before the dismissal order became
final (Constantino vs. Reyes, L-16853, June 29, 1963). An
amended answer may also be allowed even after the case
had been set for trial on the mer it s if the purpose of the
amendment is to submit the real mat t er in dispute without
int ent to delay the action (Paman vs. Diaz et al., G.R.
No. 59582, Aug. 26, 1982; cf. Sec. 3 of this Rule).
4. It has also been held t hat a complaint can still be

amended as a mat t e r of right before an answer t heret o
has been filed, even if t here was a pending proceeding in
a higher court for the dismissal of t hat complaint.
Under Sec. 3 of Rule 10, subst ant ial a me nd ment s of
the complaint are not allowed wit hout leave of court after
an answ e r has been ser ved, and t his is because any
mat erial change in the allegat ions in the complaint could
prejudice the de fe nd a n t who ha s alr eady set up his
defenses in his a nswer. Conver sely, no r ight s of t he
de fe nda nt will be vio lat ed by cha nge s mad e in t he
complaint if he has yet to file an answer t hereto. The
defendant has not pr esent ed any defense t hat can be altered
or affected by an amend me nt made in accordance with Sec. 2
of the Rule. In fact, he can t hereaft er address the amended
allegat ions by setting up the defenses thereto in his
project ed answe r (Remington Industrial Sales Corp. vs.
CA, et al, G.R. No. 133657, May 29, 2002).
5. The defense of prescr ipt ion, which was not raised

in a motion to dismiss nor as an affirmative defense in
the original answer, may be validly set up for the first
time in an amended answer. This situat ion would not be
violative of, because it does not fall under, the general
rule in t hen Sec. 2 (now, Sec. 1), Rule 9. The effect of the
205
RUL E 10 REMEDIA L LAW C O M PEN D IU M S E C S . 3- 4
filing of the amended answer is the wit hdr awal of the

original answer and its subst it ut ion by the former. Since
in t his case no responsive pleading, such as a reply,
had been filed by the plaint iff and the case had not
been ca le ndar ed for hear ing, the de fe ndant had the
right to amend his answer, pur suant to Sec. 2, Rule 10,
and in the process set up the defense of prescr ipt io n
(Aznar III, et al. vs. Bemad, etc., et al., G.R. No. 81190,
May 9, 1988).
Sec . 3. Amendments by leave of court. — E xc e p t

a s p r o v i d e d i n t he ne x t p r e c e d i n g s e c t i o n ,
s u b s t a n t i a l a m e n d m e n t s ma y b e ma d e onl y upo n
lea v e of co ur t . Bu t suc h leav e ma y be r e fu s e d i f
i t a p p e a r s t o t he Co u r t t hat t he mo t io n wa s mad e wit
h i nt e n t t o dela y . O r d e r s o f t he Co ur t upo n t he m a t t e r s
p r o v i d e d i n t hi s se ct io n shal l b e mad e upo n mo t io n
filed i n co ur t , an d aft er not ic e t o t he a d v e r s e p a r t y , an
d a n o p p o r t u n i t y t o b e he a r d . (3a)
Sec . 4. Formal amendments. — A de fe c t in t he

d e s i g n a t i o n o f t he p a r t ie s an d o t he r c le ar l y c le r ic a l
o r t yp o g r a p h i c a l e r r o r s ma y b e s u m m a r i l y c o r r e ct e d
b y t he C o u r t a t an y s t a g e o f t he a c t i o n , a t it s
i n i t i a t i v e o r o n mo t io n , p r o v i d e d n o p r e j u d i c e i s
c a u s e d t he r e b y t o t he a d ve r s e par t y . (4a)
NOT E S
1. Sec. 3 of this Rule amended the former rule by

elim inat ing the phr ase "or t hat the cause of act ion or
defense is subst ant ia l l y alt ered." The clear import of
suc h a m e n d m e n t i s t hat UNDE R the new Rule "t he
a me nd me nt may (now) subst ant ia lly alt er the cause of
action or defense." This should only be true, however,
when despit e a subst ant ia l change or alt erat ion in the
cause of action or defense, the amend me nt s sought to be
made shall serve the higher interests of subst ant ial justice,
206
RUL E 10 A M E N D E D AN D S E C S . 3- 4
SU P P LEM EN T A L PLE ADING S
pr event delay and t hu s equally promote the laudable

objective of the Rules which is to secure a "just, speedy
and i ne x p e n s i v e d i s p o s it io n of ever y act io n an d
p r o c e e d i ng " (see Valenzuela, et al. vs. CA, et al.,
G.R. No. 131175, Aug. 28, 2001). Philippine Ports
Authority vs. William Gothong, etc., Inc., G.R. No. 158401,
Jan. 28, 2008).
2. Amendment s are not proper and should be denied:

a. Where t he court has no jur isd ict io n over the
original complaint and the purpose of the amend ment is
to confer ju r i s d i c t io n on the Court by e l i m i n a t i n g
the object ionable portion (Rosario, et al. vs. Carandang,
et al., 96 Phil. 845), or wher e the caus e of act io n
origina lly p leaded in t he co mpla int was o ut side t he
jurisdict ion of the court (Versoza vs. Versoza, L-25609,
Nov. 27, 1968; Campos Rueda Corporation vs. Bautista,
et al., L-18453, Sept. 29, 1982), since the court must
first have jur isdict ion over the case before it can order
such amend me nt (Caspar vs. Dorado, L-17884, Nov. 29,
1965);
b. If it would result in delay (Lerma vs. Reyes, etal.,
103 Phil. 1027; Sec. 3 of this Rule);
c. If it would result in a change of the cause of action
or defense or change the t heory of the case (Torres vs.
Tomacruz, 49 Phil. 914; Sec. 3 of t his Rule), or are
i n c o n s i s t e n t wit h the a l l e g a t io n s i n the o r ig i na l
complaint (Castillo, et al. vs. CA, et al., G.R. No. 52008,
Mar. 25, 1988), unless just ice and equit y warr ant such
a me nd me n t which would negat e defendant ' s liabilit y
(R&B Insurance Co., et al. vs. Sauellano, et al., L-45234,
May 8, 1985), or will not result in su bst a nt ia l injury
to the adverse part y (Marini-Gonzales vs. Lood, et al.,
L-35098, Mar. 16, 1987); and
d. If the plaint iff had no cause of action at the filing
of the original complaint and the purpose of the amend-
207
RUL E 10 REMEDIA L LAW COMPENDIU M SEC . 5
ment is to int roduce a subsequent ly- accr ued cause of

action (Surigao Mine Exploration Co. vs. Harris, 68 Phil.
118).
3. To det ermine whet her a different cause of action
is int roduced by a mend me nt s to the complaint, what is
ascert ained is whet her the defendant is being required to
answe r for a liabilit y or legal o bligat io n co mplet el y
different from t hat st at e d in t he or ig ina l co mp la int
(Rubio vs. Mariano, et al, L-30404, Jan. 31, 1973). The
same t est may be applied with respect to suppleme nt al
pleadings.
4. As earlier st at ed, a plaint iff may move to amend

his complaint even if the same was dismissed on motion of
the defendant provided the dismissal order is not yet final.
An order denying such motion to amend the complaint is
appealable and the r egleme nt ar y period to perfect the
appeal runs from plaint iffs receipt of the order denying
his motion to amend the complaint (Constantino vs. Reyes,
supra).
Sec. 5. Amendment to conform to or authorize

presentation of evidence. —W h e n i ssu e s not rai sed by
the p l e a d i n g s are t ried wit h the exp res s or i mp li ed
c o n s e n t of the p art i es, they shall be t reat ed in all
re sp e ct s as i f the y had bee n rai sed in the p lea d i n gs .
S u c h a m e n d m e n t o f the p l e a d i n g s a s ma y b e
n e c e s s a r y to cau s e th e m to con form to the ev i d e n c e
and to raise t h es e i ssu e s may be mad e upo n moti on
of any party at any time, eve n after j u d g m en t ; but
fai lu re to amen d doe s not affect the resu lt of the
trial of t h es e i ssues . If evi d e n c e is obj ect ed to at
the trial on the grou n d that i t i s not wi t h i n the i ssu e s
mad e by the p lea d i n g s , the cou rt may allow the
p le ad i n g s to be amen d ed and shall do so wit h
li b e ra li t y i f the p re s e n t a t i o n of the me ri t s of the
act i o n and the end s of su b st ant i a l ju st i c e will be
208
RUL E 10 A M E N D E D AN D SEC . 5
subserved thereby. The court may grant a continuance

to en ab l e the a m e n d m e n t to be made. (5a)
NOTES
1. This is an inst ance wherein the court acquires

jur isd ict io n over the issues even i f the same are not
alleged in the original pleadings of the part ies, i.e., where
the t r ia l of said issues is wit h the express or implied
consent of the part ies. Also, this rule is premised on the
fact t hat evidence had been introduced on an issue not
raised by the pleadings w it ho ut any object ion by t he
adverse part y. It, t herefore, does not apply when the
case was decided on a st ipu lat io n of facts in which
case the pleadings are not deemed amended to conform to
the evidence (MWSS us. CA, et al., G.R. No. 54526,
Aug. 25, 1986).
2. One line of cases holds t hat where the evidence

su st a i n s an awar d in excess of t hat claimed in the
complaint, but the plaint iff failed to amend the prayer
of its complaint as to the amount of damages to conform
to the evidence, the amount demanded in the complaint
should be the measure of damages [Malayan Insurance
Co., Inc. vs. Ma ni l a Por t S er vice, e t al., L- 23128 ,
Sept. 30, 1978; J.M. Tuason & Co. vs. Sant iago, 99 Phil.
615]. There have, however, also been cases where the
S u p r e m e C o u r t ha s held t hat even w it ho u t suc h
amendment to conform to the evidence, the amount proved
at the trial may be validly awarded [Tuazon vs. Bolanos,
91 Phil. 106]. The rule on amend me nt need not be applied
rigidly, part icular ly where no surprise or prejudice is
caused the objecting part y [Co Tiamco vs. Diaz, 75 Phil.
672] and where t here is a var iance in the defendant ' s
pleadings and the evidence adduced at the trial, the court
may t reat the pleading as amended to conform to the
evidence [Nat ional Power Corp. vs. CA, et al., L-43814,
April 16, 1982].
209
Consequent ly, the trial court should not be precluded

from awarding an amount higher t han that claimed in
the p le a d i ng s n o t w i t h s t a n d i n g the a bs e nc e of the
required amendment , provided t hat the evidence of such
higher amount has been present ed properly, wit h full
opport unit y on the part of the opposing part ies to support
t heir respect ive cont ent ions and to refute each ot her' s
evidence (Northern Cement Corp. us. IAC, et al., G.R.
No. 68636, Feb. 29, 1988).
3. Where the eject ment case was dismissed by the

inferior court and on appeal the plaint iff filed an amended
co mp la int to inc lude, as add it io na l cause of act ion,
c o nt r a ct u a l br each by t he de fe nda n t which was not
alleged in the original complaint but on which issue the
par t ie s had p r e s e nt e d t hei r r espect ive evidence, a n
amended complaint may be admitted since the amend ment
is to make the pleadings conform to the evidence (Dayao
us. Shell Co. of the Phil., Ltd., et al., L-32475, April 30,
1980).
Sec. 6. Supplemental pleadings. — Upo n mot i o n

of a party the cou rt may, upo n re a son a b l e noti ce and
upo n suc h t erms as are ju st, p ermi t hi m to serve a
s u p p l e m e n t a l p lead i n g set t i n g forth t ran sa ct i o n s ,
o c c u r re n c e s o r even t s wh i c h hav e hap p e n e d sin ce
the dat e of the p le ad i n g sou gh t to be s u p p l e m e n t e d .
The ad ve rs e party ma y plead t h e ret o wi t h i n ten (10)
d a y s fro m n o t i c e o f the o rd e r a d m i t t i n g the
s u p p l e m e n t a l p lead i n g. (6a)
NOTES
1. Dist inct ions bet ween amended and supple me nt al

pleadings:
a. Amended pleadings refer to facts exist ing at the
time of the commencement of the action; suppleme nt al
210
RUL E 10 A M E N D E D AN D SE C . 8
SUPP LEM ENT A L PLE ADING S
pleadings refer to facts ar is ing after t he filing of the

original pleading.
b. An amended pleading result s in the wit hdr awal
of the original pleading; a supplement al pleading is merely
in addit ion to, but does not result in the wit hdrawal of,
the original pleading.
c. An amended pleading can be made as of right, as
when no responsive pleading has yet been filed; supple•
ment al pleadings are always wit h leave of court.
2. Unlike the former provision wherein the court
could r e q u i r e the a d ve r s e par t y t o plea d t o the
supple ment al pleading if it deemed the same advisable,
it is now up to said part y to decide whet her or not to plead
thereto, provided t hat if he desires to plead he must observe
the r egle ment ar y period of 10 days therefor.
3. For cor relat io n, Sec. 7 of t his Rule has been

transposed to follow Sec. 1 thereof.
Sec . 8. Effect, of amended pleading. — An a m e nd e d

p l e a d i n g s u p e r s e d e s t he p l e a d i n g t hat i t a me n d s .
Ho we ver , a d m i s s i o n s i n s u p e r s e d e d p le a d i ng s ma y
b e r e c e i v e d i n e v i d e n c e a g a i n s t t he p le a d e r ; an d
c la i m s o r de fe ns e s a llege d t he r e i n no t i n c o r p o r a t e d
i n t he a m e n d e d p l e a d i n g s ha l l b e d e e me d wa ived ,
(n)
NOTE S
1. The first sentence of this section states, in general,

the effect on the original pleading by the subsequent filing
of a pleading amendatory thereof. See, however, Notes 2
and 3 under Sec. 1 of this Rule for the qualificat ions to
and ramificat ions of this general rule.
2. Alt hough the supersedure of the original plead•
ing, upon the admission of the amended pleading, amount s
211
to the wit hdrawal of the former, it is nevert heless not

expunged from but r emains in the record of the case.
Reference can t hereby be readily made t her et o wit h
r eg ar d t o the effect s of the a m e n d m e n t , t hat is,
(a) admissio ns in the superseded pleading can still be
received in evidence against the pleader, and (b) claims
or defenses alleged t her e i n but not inco r po r at ed or
reit erat ed in the amended pleading are deemed waived.
The first effect, t hat is, the admissibilit y in evidence
of what ever admission had been made by t he p leader
t herein is in line with the rulings on judicial ad missio ns.
It will be noted t hat the admission made in t hat pleading
was, before it was superseded by amendment , in the nat ure
of a jud ic ia l ad m is s io n which does not even r equ ir e
proof and o r d inar i l y ca nno t be co nt r ad ict e d by t he
pleader. Despit e its being superseded and wit hdr awn,
the admissions t herein are still considered ext rajudicial
ad m i s s io n s and may be proved by the part y relying
t her eo n by formal offer in evidence of such or ig ina l
pleading. See notes under Sec. 4 of Rule 129.
212
RULE 11
WHEN TO FILE RES PO NS IVE PLEADINGS
S ect i o n 1. Answer to the complaint. — The

d e f e n d a n t sh all file his an sw e r to the c o m p l a i n t
wi t h i n fifteen (15) day s after servi ce of su m mon s
u n les s a di fferent period is fixed by the cou rt, (la )
Sec. 2. Answer of a defendant foreign private

juridical entity. — Where the d e fe n d an t is a foreign
p ri vat e j u ri d i cal en tit y and servi ce of su m m on s i s
made on the g o v e rn m e n t official d esi g n at e d by law
to recei v e the same, the an swe r shall be filed with in
thirty (30) days after re cei p t of su mmon s by suc h
ent it y. (2a)
NOTES
1. In the case of a nonresident defendant on whom

ext r at er r it or ial service of summo ns is made, the period to
answer must be at least 60 days (Sec. 15, Rule 14).
2. The grant ing of addit ional time to the defendant
w it hin which to file an a nsw e r is a mat t e r lar gel y
addressed to the sound discret ion of the trial court (Naga
Dev. Corp. vs. CA, et al., L-28173, Sept. 30, 1971). Foreign
aut hor it ies are to the effect t hat while courts can extend
the time for filing of responsive pleadings, they can not
short en the time to do so (1 Martin 344, citing Aaron vs.
Anderson, 18 Ark. 268, 49 C.J. 200). This seems to be the
int endment of our rules, as the present Rule provides
for discret ion on the part of the court to extend the time
or allow pleadings filed after the reglement ar y period,
t hus —
"Sec. 11. Extension of time to plead. — Upon
motion and on such terms as may be just, the court
213
may ext end the t ime to plead provided in t hese

Rules.
The court may also, upon like t er ms, allow an
answer or other pleading to be filed after the time
fixed by these Rules. (8a)"
It is believed, however, t hat the discret ion of the court
to admit pleadings filed after the reglement ar y period has
expired does not extend to the steps necessary to perfect
an appeal which must all be done wit hin the reglement ar y
period, unless prior to its expirat ion an extension has been
sought and grant ed on just ifiable grounds.
3. A motion for extension of time to file an answer
may be heard and grant ed ex parte (Amante us. Sunga, L-
40491, May 28, 1975).
4. An order allowing the filing of a late answer is
i n t e r lo c u t o r y an d not a p p e a l a b l e (De Ocampo us.
Republic, L-19533, Oct. 31, 1963).
Sec. 3. Answer to amended complaint. — Wh er e

the p laint i ff files an amen d ed c o mp l ai n t as a matt er
of ri ght, the d e f en d an t shall an swe r the same wi t h i n
fi ft een (15) day s aft er b ei n g s e rv e d wit h a cop y
thereof.
Wh er e its fi li ng i s no t a mat t e r of ri gh t, the
d e f e n d a n t shal l a n s w e r the a m e n d e d c o m p l a i n t
w i t h i n te n (10 ) d ay s fro m n o t i c e o f the ord e r
a d m i t t i n g the same. An an swe r earli er filed may
serve as the an swe r to the ame n d ed com p la i n t i f no
ne w an sw e r i s filed.
Th i s Ru l e sh al l ap p l y t o the a n s w e r t o a n
amended counterclai m , amended cross-claim ,
am en d ed thi rd ( fou rth, et c. ) - p art y comp lai n t , and
am en d ed co mp l ai n t - i n - i n t e rv en t i on . (3a)
214
RUL E 11 W H E N T O FIL E SE C . 3
RESPON SI V E PLEADING S
NOTE
1. This amended sect ion, while adopt ing the period

provided by the former Rule for the filing of an answer
to an amended complaint , now makes clear the date from
which such period shall be reckoned. Thus, if the filing
of an amended complaint is a mat t er of right, as where
no answer has yet been filed to the original complaint,
no motion for leave or court order granting such leave
to file an amended complaint being involved, the 15-day
period to answer is counted from service of the amended
complaint. If t he filing of the amended complaint is not
a mat t er of right, t hen leave of court is required, hence
the 10-day period to answer runs from notice of the court
order grant ing the same. This simplified procedure has
been made possible by the new provisions in Rule 15,
t hat is, Sec. 9 thereof which provides t hat a motion for
leave to file such pleading shall be accompanied by t hat
pleading sought to be admit t ed, hence the defendant has
advance knowledge of t hat proposed amended complaint.
See notes under said Sec. 9.
The alt er nat ive practice under the old Rule was for
the pleader to file a motion for leave to amend his com•
plaint, at t aching t heret o the proposed amended pleading,
with copies of both furnished to the other part y. In such
a case, the period to file an answer to t hat amended
complaint commences after receipt of the order of the
court allowing the filing of such a me nded plead ing.
Where, however, a motion for leave to amend was first
filed and t hen, after the order grant ing the same, the
amended pleading was filed and served on the opposing
part y, the reglement ar y period st arted to run from service
of such amended pleading. Thus, Sec. 3 was understood
to mean t hat the period shall "run from notice of the
order admit t ing the amended complaint" or the service of
the latter, whichever is later. That procedure has been
215
RUL E 11 REMEDIA L LAW COMPENDIU M S E C S . 4-6 , 6
simplified by the aforesaid ame nd ment s, and has been

extended in applicat ion to the answer to other amended
init iat ory pleadings. See Sec. 7 of this Rule with respect
to a supplement al complaint.
Sec. 4. Answer to counterclaim or cross-claim. — A

c o u n t e r c l a i m o r c r o s s - c l a i m mu s t b e a n s w e r e d
wi t h i n ten (10) days from se rvi ce. (4)
Sec. 6. Answer to third (fourth, etc.)-party com•

plaint. — The time to an swe r a third (fou rth, etc.)-
party co m p la i n t shall be govern e d by the sam e ru le
as the an swe r to the comp lai n t . (5a)
NOT E S
1 . Jus t as pro vided in Rule 6 , the t hi r d - p a r t y

de fe nd a n t sha ll file his a nswe r alleg ing t her e i n his
defenses and his count erclaims and cross-claims against
the plaintiff, t he t hird-part y plaint iff or any other part y;
and he may a sser t such defenses as the t h ir d - p a r t y
plaint iff may have against the plaint iffs claim.
2 . The t h i r d - p a r t y d e f e n d a n t i s ser ve d wit h

summo ns just like the original defendant , hence he also
has 15, 30 or 60 days from service of summo ns, as the
case may be, to file his answer just like the or iginal
defendant .
Sec. 6. Reply. — A rep ly may be filed wi t h i n ten

(10) day s from se rvi ce of the p lea d i n g r e s p o n d e d
to. (6)
NOT E S
1. This section uses the word "may" as it is ordinar ily

optional for a part y to file a reply since, by his failure to
do so, all the new mat t er s alleged in the a nt ec ed e n t
216
RULE 11 WH E N T O FIL E SE C . 6
pleading are deemed controvert ed. However, if he elects

to file a reply, he must observe the above period.
2. Where the last day of the reglement ar y period
falls on a Sunday or holiday, the pleading may be filed
or the r equir ed act may be done on the succeeding
business day. Alt hough pleadings may also be served
and filed by mail (Sec. 3, Rule 13), it has been held t hat
even if the Bur eau of Posts and its branches are open
on a holiday which is the last day for filing a pleading,
such pleading may still be filed on the next day (Galang
us. WCC, et al., L-33928, Mar. 29, 1972).
3. In the comput at ion of the reglement ar y period,

especially if it is int errupt ed by the filing of a pleading,
the dat e when the p lead ing is filed and the dat e of
r eceipt of the ju d g m e n t or order t her eo n are to be
excluded. Thus, when the motion for reconsiderat ion of
a judg ment is filed on the 15th or last day wit hin which
to perfect the appeal, t hat day should be excluded and
the part y st ill has one day to perfect an appeal. The
filing of said motion and the pendency thereof suspends
the r u nn in g of the r eg le me nt ar y period, unless said
mot ion is pro forma. Where, t her eaft er , an order is
received denying said motion for reconsiderat ion, the
date of such receipt is also not considered in the com•
put at ion. Thus, excluding such date of receipt and there
being a balance of one day of the reglement ar y period,
the appeal can be perfected on the working day following
the day of r ece ipt of the denia l order. This ruling
clarifies and sets aside the doctrines in Federal Films,
Inc. us. Judge of First Instance of Manila [78 Phil. 472]
and Taroma us. Cruz, et al. [68 Phil. 281] (Lloren us. De
Veyra, L-13929, Mar. 28, 1962).
The aforesaid doctrine in Lloren was reiterat ed and
declared applicable w het he r the mot ion for reconsi•
derat ion is filed days before or on the last day of the
reglement ar y period. Where such motion is filed, say,
217
RUL E 11 R E M E D I A L LAW C O M P E N D I U M SEC . 7
2 days before the end of the r eg le me nt ar y period of

appeal, the date of filing shall be added to the remaining
days of the period. As already st at ed, the pendency of
suchmot ion shall be deducted from, since it suspends, the
r e g l e m e n t a r y per io d unle s s i t fails to sat isfy the
r e q u i r e m e nt s of Rule 37 (Sec. 2). If the mot ion is
t hereaft er denied, the 3 remaining days of the period shall
st art to run again on the day after the receipt of the order
denying t he mot ion (De las Alas, et al. vs. CA, et al., L-
38006, May 16, 1978; Mayor vs. IAC, et al., G.R. No.
74410, May 4, 1988).
Sec . 7. Answer to supplemental complaint. — A

s u p p l e m e n t a l c o m p l a i n t ma y b e a n s w e r e d w it h i n
t e n (10) day s from no t ic e o f t he o r d e r a d m i t t i n g t he
sa me , u n le s s a d i f fe r e n t per io d i s fixed by t he co ur t .
The a n s w e r t o t he c o m p l a i n t s ha l l s e r v e a s t he
a n s w e r t o t he s u p p l e m e n t a l c o m p l a i n t i f n o ne w o r
s u p p l e m e n t a l a n s w e r i s filed, (n)
NOT E
1. This is a new provision which remedies the over•

sight in the old Rule which did not provide for an answer
to a supp le me nt a l co mp laint a lt ho ugh the allegat ions
t he r e i n may ver y well ne c e s s it a t e the a p p r o p r i a t e
response, clar ificat ion or denial. Since the filing of a
s u p p le me nt a l co mp la int r equ ir e s leave of court , t he
procedure for filing an answer t heret o is similar to the
case of an amended complaint the filing of which is not
a mat t e r of r ight , hence likew ise r e qu i r in g leave of
court therefor (see 2nd par., Sec. 3 of the Rule). However,
unlike the lat t er, the court may fix a different period
for answer ing the supple ment al complaint in lieu of the
r eg le me nt ar y 10-day per iod. The difference may be
ascribed to the fact t hat in an amended complaint , the
facts sought to be inco rpor at ed t her e in were alr eady
218
RUL E 11 WH E N T O FIL E S E C S . 8 -11
known to but were merely omitted by the pleader and, in

all probability, were likewise known to the defending
party. The supplemental complaint, on the other hand,
seeks the introduction of facts or events which occurred
or supervened after the filing of the original complaint,
hence, for lack of knowledge thereof, the defending
party may need a longer period of time to ascertain and
respond to the allegations thereof.
Sec. 8. Existing counterclaim or cross-claim. — A

c o m p u l s o r y c o u n t e r c l a i m or a c ro ss - c la i m that a
d e f en d i n g party has at the time he files his an swe r
shall be con t ai n e d t h erei n . (8a, R6)
Sec. 9. Counterclaim or cross-claim arising after

answer. — A c o u n t e rc l a i m or a cross - clai m wh i c h
ei t h e r mat u re d or wa s acq u i re d by a party after
se rvi n g his p l ead i n g may, with the p e rm i s si o n of
the court, be p re se n t e d as a cou n t e rc l a i m or a cross-
claim by su p p le m en t a l p l ead i n g before j u d g m en t .
(9, R6)
Sec. 10. Omitted counterclaim or cross-claim.—

When a p lead e r fails to set up a cou n t e rc l ai m or a
c ro s s - c l a i m t h ro u g h o v e r s i g h t , i n a d v e rt e n c e , o r
excu sab l e n eglect, or whe n j u st i ce requ i res, he may,
by leave of court, set up the cou n t e rc l ai m or cross-
claim by a m e n d m e n t before ju d gmen t . (3a, R9)
Sec. 11. Extension of time to plead. — Up o n

motion and on suc h t erms as may be just, the court
may e xt en d the tim e to p lead p rovi d e d in t h es e
Rules.
The cou rt may also, upon like terms, allow an
an swer or oth er p lead i n g to be filed after the time
fixed by th es e Rules. (7)
219
RUL E 11 R E M E D I A L L AW COMPENDIU M SECS . 8-11
NOTES
1. Sec. 11 is co mme nt ed on in t he not es UNDE R

Sec. 2 of this Rule.
2. See the discussion in the notes under Secs. 6
and 7 of Rule 6 which point out t hat an aft er-acquired
co unt er cla im or cross-claim may be set up by filing a
supple ment al pleading, while an omitted count erclaim or
cr o ss- c la i m may be r aised in an a me nde d p lead in g
pur suant to and under the condit ions in Secs. 9 and 10 of t his
Rule.
It is also noted t herein t hat a count erclaim or cross-
claim need not be a ns w e r e d if i t is base d on or is
inseparable from the defenses raised by the opposing part y,
or merely allege the opposite of the facts in the complaint .
Also, where the count erclaim or cross-claim is only for
damages or att orney' s fees ar ising from the filing of the
complaint , it need not be answered. These doctrines also
apply to after-acquired or omitted counterclaims and cross-
claims subsequent ly allowed by the court to be filed in the
action.
220
RULE 12
BILL OF PARTICULARS
S e c t i o n 1. When applied for; purpose. — B efore

re s p o n d i n g to a p lead i n g, a party may move for a
more d efi n i t e s t a t e m e n t or for a bill of part i cu lars
of an y matt e r wh i c h i s not av e rred with su fficient
d e fi n i t e n e s s or p art i cu la ri t y to en ab le hi m properly
to p rep are his res p on s i v e p lead i n g. I f the p lead i n g
is a rep ly, the mot i o n mus t be filed wi th in ten (10)
days from se rvi ce thereof. Suc h moti on shall point
ou t the d e f e c t s c o m p l a i n e d of, the p a r a g r a p h s
wh e re i n the y are co n t ai n e d , and the d et ai ls d esi red,
(la)
NOTES
1. Under this revised Rule, the purpose of a bill of

part icular s is to enable the defending part y to properly
p r e p a r e his r e spo ns i v e p le a d ing . UN DE R the for mer
fo r mu la t io n , the ot he r pur po s e wa s suppo se d l y t o
enable him "to pr epar e for t rial," but that st at e me n t
has been eliminat ed for being inaccur at e. Besides, there
are other and more proper remedies or modes of discovery
whereby a part y may chart his course of action for the
prospect ive trial.
2. . Wha t may be co ns id er e d as a r at io na l e
for requir ing a bill of part icular s in proper cases is
t hat, while p lead ings should be liberally const rued
wit h a view to subst ant ial justice, courts should not be
left to conjecture in the det er minat io n of the issues
submitted by t he l it ig a nt s . Wher e the p lead ing is
vague and uncert ain, courts should not be led to the
commission of error or injust ice by exploring in the midst
of uncert aint y and d iv in ing t he int e nt io n of t he
par t ie s from the
221
RUL E 12 REMEDIA L LAW COMPENDIU M S E C S . 2- 4
ambiguit ies in the pleadings (Go Occo & Co. vs. De la

Costa, et al., 63 Phil. 445).
3. The grant ing of a motion for a bill of part icular s
lies w it hin the sound discret ion of t he court and its
ruling will not be reversed unless t here was palpable
abuse of discret ion or it was a clearly erroneous order.
Thus, the Supreme Court refused to dist urb the order of
the trial court dismissing the complaint where plaint iff
refused to submit a bill of part iculars despite the court's
order therefor, it appear ing t hat the allegat ions on the
cause of action were in the nat ur e of legal conclusions
which sho uld have been clar ified by u lt i m a t e fact s
(Santos vs. Liwag, L-24238, Nov. 28, 1980).
Sec. 2. Action by the court. — Upo n t he filing of

t he mo t io n , t he c ler k o f C o u r t mu s t immed iat el y
br i n g i t t o t he a t t e n t i o n o f t he C o u r t w h i c h ma y
e it he r den y o r g r a n t i t o u t r ig ht , o r allo w t he p a r t ie s
t he o p p o r t u n i t y t o b e he a r d , (n)
Sec . 3. Compliance with order. — If t he mo t io n is

g r a n t e d , e it h e r i n w ho l e o r i n p ar t , the c o m p l i a n c e
t h e r e w i t h mu s t b e effect ed w it h i n te n (10) day s fro m
no t ic e of t he o r d e r , u n le s s a d i f f e r e n t p e r io d i s fixed
b y t he c o u r t . The bill o f p a r t i c u l a r s o r a mo r e de f in it
e s t a t e m e n t o r d e r e d b y t he C o ur t ma y b e filed e i t h e r i n
a s e p a r a t e o r i n a n a m e n d e d p l e a d i n g , s e r v i n g a cop
y t he r e o f o n t he a d v e r s e p a r t y , (n)
Sec . 4. Effect of non-compliance. — If t he o r d e r is

no t o be ye d , o r i n cas e o f in s u f f i c i e n t c o m p l i a n c e
t h e r e w i t h , t he Co ur t ma y o r d e r t he s t r i k i n g ou t o f
t he p l e a d i n g o r t he p o r t i o n s t he r e o f t o w hic h t he o r d e
r wa s d ir e c t e d o r ma k e suc h o t he r o r d e r a s i t d e e m s
just . ( l[ c] a )
222
RULE 12 BILL OF PARTICULARS SECS. 5- 6
NOTES
1. These new or amended provisions spell out the

mechanics involved in the obtent ion of a bill of part iculars
and the sanct ions for non-compliance t herewit h. Judicia l
experience shows t hat resort to a motion for a bill of
part icular s is somet imes actually intended for delay or,
even if not so int ended, no net heless r esult s in delay
since t he r egle me nt ar y period for filing a responsive
plead ing is suspended and the subsequ ent exchanges
are likewise set back in the meant ime.
2. Sec. 3 is a new provision which is int ended to

clarify how a bill of par t icu lar s may be filed, t hat is,
t hrough eit her a separat e or an amended pleading. Thus,
the former provision in Sec. 1(b) of the old Rule t hat a
bill of par t ic u la r s "shall be gover ned by the rules of
pleading and the original shall be filed with the clerk of
court" has been eliminat ed in the reproduct ion of t hat
former provision as Sec. 6 of the present Rule.
Said Sec. 3 furt her makes it clear t hat the motion for
a bill of part iculars may be grant ed in whole or in part
as not all the allegat ions quest ioned by the movant are
necessarily so ambiguous as to require clarificat ion.
Sec. 5. Stay of period to file responsive pleading. —

After ser v ic e of t he bill of p a r t i c u l a r s or of a mo r e
de f i n it e p l e a d i n g , o r aft e r not ic e o f d e n ia l o f hi s
mo t io n , t he mo v i n g p a r t y ma y file hi s r e s p o n s i v e
p l e a d i n g w it h i n t he per io d t o whic h h e wa s e nt it le d
a t t he t im e o f filing hi s mo t io n , whic h shal l no t b e
less t ha n five (5) day s in an y e ve nt . ( l[b ]a)
Sec . 6. Bill a part of pleading. — A bil l of

p a r t i c u l a r s be co me s par t o f the p l e a d i n g for whic h
i t i s i nt e n d e d . (l [ a]a)
223
RUL E 12 R E M E D I A L LAW C O M P E N D I U M S E C S . 5-6
NOTES
1. As understood under Sec. 1 of this Rule, a motion

for a bill of p a r t i c u l a r s mus t be filed w it h i n t he
r e g l e m e nt a r y per iod for t he filing of a r e s po ns i v e
plead ing to the p leading sought to be clar ified. This
cont emplat es pleadings which are required by the Rules
to be answer e d UNDE R pain of pr o cedu r a l sa nct io ns ,
such as default or implied admissio n of t he facts not
responded to. A special provision regarding a vague reply
is included in Sec. 1, t hat is, t hat a motion for a bill of
part icular s directed to a reply must be filed wit hin 10
days, since a responsive pleading is not required for a
reply as, in fact, the filing of the reply itself is optional
or permissive (see Sec. 6, Rule 11 and notes t hereon).
2. This specificat ion of a reply took the place of the

former provision which merely provided for t hat 10-day
period if the pleading sought to be clar ified is one to
which "no r espo nsive plead ing is per m it t e d by t hese
rules." That is in itself correct but may be suscept ible of
m isu nder st and ing since t here are other pleadings evolved
and sanct io ned by pract ice as r espo ns ive ple ad ing s,
which are of Amer ican vintage but not expressly provided
for in our Rules.
Thus, after the reply, t here can be a rejoinder with
a sur-rejoinder and t hen a r ebut t er wit h a sur -r ebut t er.
If t hese subsequent pleadings are allowed by the court,
as responsive pleadings which are not required but at
least aut hor ized, t hen it would be logical for it to fix a
period for the filing of a motion for a bill of part icular s
whenever the same is necessary to make more definite
the allegat ions in said pleadings.
3. . Judicial exper ience, however, reveals t hat

resort to the filing of rejoinders and sur-r ejo inder s or
ot her subsequent pleadings were often resorted to for
dilatory purposes, with the part ies intentionally leaving
incomplete
224
RUL E 12 BIL L O F P AR T I C U L A R S S E C S . 5-6
their ant ecedent pleadings in order to justify the grant of

leave to file said subsequent pleadings.
Consequent ly, the Supreme Court resolved in A. M.
No. 99-2-04-SC to d isp e ns e wit h r e jo i nde r s and to
subst it ut e a different procedure to subserve the purpose
of affected part ies on a more meaningful and product ive
process designed to enhance and expedite judicial act ion
on the case (see Appendix R).
4. The filing of a motion for a bill of par t icu lar s
int errupt s the time to plead, but only if it is sufficient in
form and su bst a nce . F u r t he r mo r e , the mot ion mus t
comply with Secs. 4 and 5, Rule 15 on the service and
cont ent s of the notice of mot ions (Filipinos Fabricators &
Sales, Inc. vs. Magsino, et al., L-47574, Jan. 29, 1988),
which provisions have been subst ant ially reproduced in
the present revised Rule 15.
5. If the mot ion is gr ant ed, the mo vant can wait
until the bill of part icular s is served on him by the opposing
par t y an d t he n h e will hav e the ba la nc e o f the
r egleme nt ar y period wit hin which to file his responsive
pleading. If his motion is denied, he will still have such
balance of the r egle ment ar y period to do so, counted from
service of the order denying his motion. In eit her case, he
will have at least 5 days to file his responsive pleading.
6. Regarding the availabilit y and the role of a bill

of part icular s in criminal cases, see Sec. 9, Rule 116 and
the notes t hereo n.
225
RULE 13
FILING AND SERVICE OF PLEADI NG S ,

JUDG M ENT S AND OTHER PAPERS
S ect i o n 1. Coverage. — This Rule shall gove r n

the fi ling of all p l ea d i n g s and ot h er p ap ers, as well
as the se rv i c e t h ereof, exce p t t h os e for wh i c h a
d i fferent mod e of servi ce i s p rescri b ed, (n)
Sec. 2. Filing and service, defined. — Fi li ng is the

act of p re s e n t i n g the p lead i n g or ot her p ap er to the
clerk of court.
S ervi c e is the act of p rovi d i n g a party wit h a
cop y of the p l e a d i n g or p ap e r c o n c e rn e d . I f an y
party ha s app eare d by coun sel , servi ce upo n hi m
sh al l b e mad e u p o n hi s c o u n s e l o r on e o f t h em ,
u n les s se rvi c e upo n the party h i m se l f i s ord e re d by
the court. Where on e cou n se l ap p ear s for seve ra l
p art i es, he shall on ly be en t it led to on e cop y of any
p ap er served upo n hi m by the op p osit e side. (2a)
NOTES
1. It is the dut y of counsel to adopt and st r ict ly

maint ain a syst em t hat efficiently t akes into account all
court not ices sent to him. His failure to do so cannot
excuse him from the consequences of his non-receipt of
court notices (Babala vs. CA, et al., L-23065, Feb. 16,
1970; Republic vs. Arro, et al., L-48241, June 11, 1987;
Antonio, et al. vs. CA, et al., G.R. No. 77656, Aug. 31,
1987). An at torney of record must notify the court of his
change of address. The fact t hat counsel used a different
address in later pleadings does not const it ute the notice
r equ ir e d for ind icat ing his change of addr e s s (Phil.
Suburban Dev. Corp. vs. CA, et al., L-33448, Sept. 17,
1980). See also Sec. 3, Rule 7 and the notes t her eunder.
226
RULE 13 FILING AND SERVICE OF PLEADINGS, SECS 1-2
JUDGMENTS AND OTHER PAPERS
2. Notice given to a part y who is duly repr esent ed

by counsel is a nullit y (Inocando vs. Inocando, 110 Phil.
266; Elli vs. Ditan, L-17444, June 30, 1962; Republic vs.
Arro, et al., supra; Antonio, et al. vs. CA, et al., supra),
unless service thereof on the part y himself was ordered
by the court or the technical defect was waived (National
Lumber & Hardware Co. vs. Manaois, 106 Phil. 1098;
Jalover vs. Ytoriaga, L-35989, Oct. 29, 1977; De Leon vs.
CA, et al, G.R. No. 138884, June 6, 2002).
3. Where notice of the decision was served on the

receiving st at ion at the ground floor of the defendant ' s
company building, and received much later at the office
of its legal counsel on the nint h floor of said building,
which was his address of record, service of said decision
takes effect from said later receipt at the aforesaid office
of it s legal co u nse l (PLDT vs. NLRC, et al, G.R.
No. 60050, Mar. 26, 1984). However, where counsel who
had t heir office on the t hird floor of the building had
vir t ually acquiesced to service of p le a d ings on t he m
t hrough a corporat ion on the ground floor of the building
by not objecting to previous service t hrough the latter,
subsequent service in such manner is valid (PCIB vs.
Ortiz, et al., L-49223, May 29, 1987).
4. Where a part y is represent ed by more than one
counsel of record, service of notice on any of the lat t er is
sufficient (Damasco vs. Arrieta, L-18879, Jan. 31, 1963).
Service on counsel of record is notice to the party unless
the irresponsibilit y of such counsel denies the part y of
his day in court (PHHC vs. Tiongco, et al, L-18891,
Nov. 28, 1964).
5. In cr iminal cases, notice to the prosecut io n is
made on the fiscal and the privat e prosecutor is deemed
construct ively notified thereof (Buro vs. Montesa, et al,
87 Phil 245). The court, of course, could also cause a
copy thereof to be served on said private prosecutor.
Sec. 3. Manner of filing. — The filing of p lead •

ings , a p p e a ra n c e s , moti on s , not ic e s , orde rs ,
j u d g m e n t s and all oth er papers shall be mad e by
p r e s e n t i n g the o r i g i n a l c o p i e s t h ereo f , p l a i n l y
i n d i cat ed as su ch, p erson al ly to the clerk of court
or by s en d i n g t h e m by regi st e red mail. In the first
case, the clerk of cou rt shall en d o rs e on the p lead i n g
the date and hou r of filing. In the secon d case, the
date of the mai li n g of mot i on s , p lea d i n g s , or any
oth er papers or p aym en t s or d ep o si t s , as sh ow n by
the post office st am p on the en velop e or the regi st ry
re cei p t , shal l b e c o n s i d e r e d a s the dat e o f t h ei r
filing, p aymen t , or d ep osi t in court. The en ve l op e
shall be at t ach e d to the record of the case, (la )
NOTES
1. The clerk shall keep a general docket, each page

of which shall be numbered and prepared for receiving
all the ent r ies in a single case and shall ent er t herein all
cases, number ed consecut ively in the order in which they
were received and, under the heading of each case and
a complete tit le thereof, the date of each paper filed or
issued, of each order or judgme nt ent ered, and of each
ot her step t aken in the case, so t hat by reference to a
single page the history of the case may be seen (Sec. 8,
Rule 136).
2. . UNDE R t hi s sect io n, filing by mail

sho uld be t hrough the regist ry service which is made by
deposit of the plead ing in t he post office, and not
t hrough ot her means of t ransmiss io n. Thus, the date of
delivery of the p le a d i ng s to a pr i v a t e let t er -
fo r w a r d i n g agenc y or pr ivat e car r ier , even i f licensed
to act as such wit h r espect to ot her articles, is not a
recognized mode of filing ple ad ings which can only
be done t hr o ug h the Philippine Gover nment Post Office
or its postal agencies. If a pr ivat e carrier is availed of by
the part y, the dat e of
228
RULE 13 FILING AND SERVICE OF PLEADINGS, SECS 4-5 6
JUDGMENTS AND OTHER PAPERS
actual receipt by the court of such pleading, and not the

date of delivery to the carrier, is deemed to be the date of
the filing of that pleading (Benguet Electric Cooperative,
Inc. vs. NLRC, et al., G.R. No. 89070, May 18, 1992;
Industrial Timber Corp. vs. NLRC, et al., G.R. No. 111985
June 30, 1994).
Sec. 4. Papers required to be filed and served. —

E v e r y j u d g m e n t , r e s o l u t i o n , o rd e r , p l e a d i n g
su b s eq u en t to the comp lai nt, wri tt en mot ion, notice,
ap p e a ran ce , d eman d , offer of j u d g m en t or si mi lar
p ap er s shal l be filed wit h the cou rt s and serve d
upon the p art i es affected. (2a)
Sec. 5. Modes of service. — S ervi ce of p lead i n gs,

m o t i o n s , n o t i c e s , o rd e r s , j u d g m e n t s an d ot h e r
p ap ers shall be mad e ei t h e r p erson a l ly or by mail.
(3a)
NOTE
1. Aside from personal service or by mail, service of

pleadings may also be effected by substituted service
(Sec. 8) and judgments, final orders or resolutions may
be served by publication (Sec. 9), but the last mode is
proper only where the summons on the defendant had
also been served by publication.
Sec. 6. Personal service. — S ervi ce of the p ap ers

may be made by d e li ve ri n g p erson a l l y a copy to the
party or his cou n se l , or by leavi n g i t in his office
wit h hi s cl e r k o r wi t h a p e rs o n h a v i n g c h a rg e
thereof. If no p erson is found in his office, or his
office i s not kn own , or he has no office, the n by
l ea vi n g the cop y, b e t w e e n the h ou r s o f ei gh t i n
the m o rn i n g and six in the even i n g, at the party' s
or cou n se l' s re si d en ce , if kn own , with a person of
229
RUL E 13 REMEDIA L LAW COMPENDIU M SE C 7
su ffi cient age and d i sc ret i on the n resi d i n g t h erei n .

(4a)
NOTE
1. This sect ion has been a mended to include the

sit uat ion where counsel has no office, and not only where
his office is unkno wn or t here is no person in charge
thereof. Under such circumst ances, service may be made
not only at the residence of the part y he represent s but,
now, also at counsel's residence, it being assumed t hat
his residence is also used by him as his office. In any of
said cases, this section now requires t hat if not served
o n e it he r the par t y o r co unse l p e r so na l l y t he r e i n ,
service should be made not only on a person of sufficient
discret ion but likewise of sufficient age and who must
furt her be actually residing t herein. The addit ional age
r equir eme nt is int ended to make it easier to ascert ain
whet her the person to whom the pleading was ent rust ed
is one with sufficient discret ion. Also, the r equir eme nt
t hat he should be a resident t her ein is to obviat e the
possibilit y or the pret ext t hat service was made only on a
visitor or any person who happened to be in the residence
for a t ransient or t emporar y purpose.
Sec . 7. Service by mail. — S ervi c e by re gi st e re d

mail shall be mad e by d ep o s i t i n g the cop y in the
post office, in a sealed e n v e l o p e , p lain ly ad d re s s e d
to the party or his coun se l at his office, i f kn own ,
o t h e rw i s e at his re si d en c e , i f kn own , wit h p ost ag e
fu l l y p r e - p a i d , an d w i t h i n s t r u c t i o n s t o the
p o s t m a s t e r to ret u rn the mail to the sen d e r after
ten (10) day s i f u n d e li ve re d . If no regi st ry se rvi ce is
avai lab le in the locali ty of ei t h e r the sen d e r or the
a d d re s s e e , se rvi ce may be don e by ord i n a ry mail.
(5a) (As amended by Resolution of the Supreme Court,
dated Feb. 17, 1998)
230
RUL E 1 3 F I L I N G AN D S E R VI C E O F P L E A D I N G S , S E C S 8- 9
J U D G M E N T S AN D O T H E R P AP E R S
NOTE
1. See Note 2 under Sec. 6, Rule 11.
Sec. 8. Substituted service. — If s e r v i c e of

p le ad i n g s , mot i on s , n ot i ces, re so l u t i o n s , ord ers and
o t h e r p a p e r s c a n n o t b e m a d e U N D E R the t w o
p re c e d i n g sect i o n s , the office and p lace of re si d en c e
of the party or hi s cou n se l b ei n g u n k n own , se rvi ce
may be mad e by d el i v e ri n g the copy to the clerk of
cou rt, wit h p roof of fai lu re of both p erson a l se rvi ce
and se rvi c e by mail. The servi ce i s comp l et e at the
time of suc h d eli ve ry. (6a)
NOTES
1. Where the counsel of record has not withdrawn

as such, service of the judgment on his wife at their
residence is valid personal service (Cubar vs. Mendoza,
G.R. No. 55035, Feb. 23, 1983).
2. "Substituted service" as applied to pleadings in

the above section has a different meaning from "substi•
tuted service" as applied to summons, Rule 14 providing
as follows:
"Sec. 7. Substituted service. — If, for justifiable
cau ses , the d ef en d an t cannot be served wi t h i n a
reasonable time as provided in the preceding section,
service may be effected (a) by leaving copies of the
summons at the defendant's dwelling house or residence
with some person of suitable age and discretion then
re si d i n g t h erei n , or (b) by l eavi n g the copi es at
defendant's office or regular place of business with some
competent person in charge thereof. (8a)"
Sec. 9. Service of judgments, final orders or resolu•

tions. — Ju d g m e n t s , final o rd ers or re s o lu t i on s shall
231
be served ei t h e r p erson al ly or by re gi st e re d mail.

When a party su m m on e d by pu b li cat i on ha s failed
to ap p ea r in the act i on, j u d gme n t s , final ord ers or
re s o lu t i on s agai n s t hi m shall b e served upo n hi m
also by p u b li cat i on at the exp en s e of the p re vai l i n g
party. (7a)
NOTES
1. A judgment or final order served by ordinary mail

does not become executory since the service is fatally
defective (Vda. de Espiritu vs. CFI of Cavite, et al., L-
30486, Oct. 31, 1972). Person al servi ce of such judgment
upon the party, instead of his counsel of record, is not
permitted. Also, where a copy of the decision is served on a
person who was neither a clerk nor one in charge of the
attorney's office, such service is invalid and the decision
did not thereafter become executory (Tuazon, et al. vs.
Molina, et al., G.R. No. 55697, Feb. 26, 1981).
2. The mere notation in the rollo that a copy of the

resolution was sent to counsel, absent a showing of his
receipt thereof, does not constitute proof of service (Soria
vs. CA, L-36378, April 7, 1976).
3. For constructive service by registered mail, there
must be conclusive proof that a first notice by the post•
master to the addressee was received. The presumption
that official duty has been performed does not apply
(ITT Philippines, Inc. vs. CA, et al., L-30810, Oct. 29,
1975; Barrameda vs. Castillo, L-27211, July 6, 1977;
Elane vs. CA, et al., G.R. No. 80638, April 26, 1989). If,
however, the postmaster certifies that such notice was
sent, the presumption arises and overrides the contrary
claim of the addressee (Ferraren vs. Santos, L-41323,
April 27, 1980). Where the delivery of the first notice
was not made because the "addressee was unlocated,"
there is no substituted service (Arines vs. Cuachin, L-
30014, July 31, 1978). But where a copy of the
232
RUL E I S F I L I N G AN D S E R V I C E O F P L E A D I N G S
J U D G M E N T S AN D O T H E R P A P E R S
decision was sent to counsel at his address of record

but the same was not received because he moved to
another address without informing the court thereof,
such omission or neglect will not stay the finality of the
decision (Magno, et al. vs. CA, et al., G.R. No. 58781
July 31, 1987).
4. Judgments, final orders or final resolutions can

be served only under the three modes authorized in this
section, that is, personally, by registered mail or by
p ub li cati on. They cannot be served by su b st i t ut ed
service. With respect to service by publication, the rule
is that resort thereto is proper only where summons was
likewise served by publication, and this can result in
practical problems especially in the appellate courts. If,
for i n st an ce, it has been ascertained that a party's
counsel is dead or has permanently left the country and
withdrawn from the case without a substitute counsel
having entered his appearance, and the whereabouts of
the party represented by him can neither be ascertained
nor the fact thereof obtained from the opposing party,
and su mmon s in that case had not been served by
publication, then service of the judgment by publication
is not authorized and would not be valid. As just stated,
substituted service can not be availed of. The logical
solution would be to authorize the trial court to effect
service of the judgment by publication, otherwise entry
and execution of that judgment would be void.
5. What is authorized or required to be served by

publication under the third mode in this section is the
judgment, final order or resolution. To avoid absurd or
impractical results, only the dispositive portion or the
fallo should be required to be published, and not the
entire text of the decision or resolution which may be
volu min ou s and will entail su b stantial publication
expenses. In other words, the term "judgment" must be
that contemplated in Rule 36. The prevailing party
233
may, for reasons of his own, cause the publication of

the whole decision since after all the same shall be at
his expense.
Sec. 10. Completeness of service. — P e r s o n a l

se rvi ce i s comp let e upo n actu al d eli very. S ervi ce
by ord i n ary mail i s comp let e upo n the e xp i rat i o n
o f te n (10 ) d ay s aft er m a i l i n g , u n l e s s the Cou rt
o t h e rw i s e p rovi d es. S ervi c e by re gi s t e re d mai l i s
comp let e upo n act u a l recei p t by the ad d re s s e e , or
after five (5) day s from the dat e he re c e i v e d the first
n ot i c e o f the p o s t m a s t e r , w h i c h e v e r dat e i s earli er.
(8a)
NO TES
1. This section, as amended, now provides for 10

days, instead of the former 5 days, for completeness of
service by ordinary mail. For service by registered mail,
the completeness thereof is now reckoned from the date
of actual receipt of the first notice of the postmaster,
unless the registered mail was received prior thereto.
2. The rule on completeness of service by registered

mail only provides for a disputable presu mption and
may, therefore, be rebutted (Cabuang vs. Bello, 105 Phil.
1135). For the rule to apply, service must have been
made on the counsel de parte (Fojas vs. Navarro, L-26365,
April 30, 1970) and if it was sent to his address of record
and he fails to receive it for causes imputable to him,
the service becomes final and it is not necessary to effect
further service upon the party he represents (Magno,
et al. vs. CA, et al., supra).
3. Service of notice by registered mail cannot be

avoided by counsel's refusal to accept delivery after
notification thereof, and notice is deemed complete
regardless of such refusal to accept (Isaac vs. Mendoza,
234
RUL E 13 F I L I N G AN D S E R VI C E O F P L E A D I N G S SE C S 1 1 -1 2
89 Phil. 279).
4. When the post office certifies to the delivery of

registered mail, such certification should include data as
to wh en , how and to whom d eli very wa s made
(Hernandez, et al. vs. Navarro, et al, L-28296, Nov 24
1972).
5. For failure of petitioners to claim a copy of the

resolution denying due course to their petition within
5 days from notice, service became effective after the five-
day period and the finality of said resolution is reckoned
therefrom, pursuant to Sec. 8 (now, Sec. 10), Rule 18
which is applicable to said resolution of the appellate
court (Aportadera, et al. vs. CA, et al, L-41358, Mar. 16,
1988).
Sec. 11. Priorities in modes of service and filing.—

W h e n e v e r p r a c t i c a b l e , the s e rv i c e an d fi li n g o f
p lead i n gs and ot h er pap ers shall be done personally.
Excep t wit h re sp ec t t o p ap er s e m a n a t i n g from the
cou rt, a resort to ot he r mod e s mus t be ac co mp an i e d
by a wri t t e n e xp l a n a t i o n wh y the serv i ce or filing wa
s not don e p erson a l ly. A vi olat i on of thi s rule may be
cau s e to con si d e r the p ap er as not filed, (n)
Sec . 12. Proof of filing. — The filing of a p lead i n g

or p ap e r sh al l be p ro ve d by its e xi s t e n c e in the
record of the case . If i t i s not in the record, but i s
c la i me d t o h av e b ee n filed p erson a l l y , the fi li n g
s h a l l b e p r o v e d b y the w r i t t e n o r s t a m p e d
a c k n o w l e d g m e n t of its fi ling by the clerk of court
on a cop y of the same; i f filed by regi st e red mail, by
the re g i s t r y re c e i p t an d b y the affi d avi t o f the
p e r s o n wh o di d the m a i l i n g , c o n t a i n i n g a full
st at e m en t of the date and place of d ep o si t i n g the
mail in the post office in a sealed en ve l op e ad d ressed
to the court, wit h p ost age fully p re-p aid, and wit h
236
RUL E 13 R E M E D I A L LAW COMPENDIU M S E C S . 1 1 -1 2
i n st ru ct i on s to the p ost ma st e r to ret u r n the mail

to the sen d e r after ten (10) day s i f not d eli ve red , (n)
NOTES
1. Sec. 11, which is a new provision, fills a long

st anding need to curb the practice of delaying the receipt
of a pleading by a part y t hrough the simple expedient
of ser ving t he same by mail. A simple and common
exa mp l e would be in t he ma t t e r of mot io n s wit h a
request ed date of hear ing, and a copy whereof is mailed
wit h t he int ent to have t he same received by t he adverse
part y after the hear ing thereof. Ext reme sit uat io ns even
obtain in Metro Manila wherein the copy of the motion is
mailed in a post office in some other component city or
municipalit y of the met ropo lit an area, alt hough the law
firms r epr esent ing the part ies are just across the st reet
from each ot her in the same city or, worse, are in the same
building. This sect ion may be consider ed, not only as
providing a procedural sanct ion for such duplicit y, but as
also laying a basis for administ r at ive disciplinar y action
for professional ma lpract ice. See also relat ed provisions,
geared t oward the same objective, in Sec. 3, Rule 7 and
Sec. 4, Rule 15.
2. When t he service is not made personally, t here

mus t be a wr it t e n exp la nat io n t her efor, even if suc h
exp la nat io n is by its nat ur e accept able and manifest .
This r equir eme nt is int ended to emphasize t hat persona l
service is the rule, while the ot her modes of service are
the except io ns (Zulueta vs. Asia Brewery, Inc., G.R.
No. 138137, Mar. 8, 2001). Where no exp la nat io n is
offered to justify the service of pleadings by ot her modes,
the discr et io nar y po wer of t he court to expung e t he
pleading becomes mandat ory (United Pulp and Paper Co.,
Inc. vs. United Pulp and Paper Chapter, etc., G.R. No.
141117, Mar. 25, 2004).
236
RUL E 1 3 F I L I N G AN D S E R VI C E O F P L E A D I N G S , SE C . 1 3
3. The fact t hat an affidavit of service accompanied

t he pet it io n i s not s u bs t a nt i a l co mplia nce wit h the
requir ement in Sec. 11. An affidavit of service is required
merely as proof t hat service has been made to the other
part ies in the case. It does not, however, explain why
alt er nat ive modes of service other t han personal service
were resort ed to (MC Engineering, Inc. vs. NLRC, et al.,
G.R. No. 142314, June 28, 2001).
4. . Thi s Rule, an d its pr ed e ce s so r , had

a lwa y s provided for proof of service of pleadings, but
had not made an equ iva le n t pro vis io n for proof of
the filing thereof. Yet, similar controversies also arise
regarding t he validit y, t imeliness and sufficiency of the
filing of the pleading just like the mat t er of the service
thereof, hence t hese co mplement ar y provisions of Sec. 12.
Sec. 13. Proof of service. — P roo f of p e r s o n a l

se rvi ce shall con si s t of a wri t t e n admi s si o n of the
party served , or the official retu rn of the server, or
the affidavit of the party servin g, c on t a i n i n g a full
s t a t e m e n t of the date, place and man n er of servi ce. If
the se rvi ce i s by ord i n ary mail, proof t h ereof shall
con si s t of an affidavit of the p erso n mai li n g of facts
s h o w i n g c o m p l i a n c e wit h sect i o n 7 of thi s Rule. If
servi ce i s mad e by regi st e red mail, proof sh all be
mad e b y suc h affi d avi t an d the re g i st r y re ce i p t
i ssu e d by the mai li n g office. The regi st ry retu rn
card sh all be filed i m me d i a t e l y upo n its recei p t by
the sen d e r , or in lieu t h ereo f the u nc la i me d lette r
t og et h e r wi t h the cert i fi ed o r swo r n cop y o f the
n ot ice gi ve n by the p o st m a s t e r to the ad d re s s ee .
(10a)
NOTE
1. The provision of t his section on proof of service

of pleadings by regist ered mail is also applicable to the
237
mat t er of proving t hat a copy of the summo ns was sent

by r egist er ed mail to a defendant wher e t he same is
required as an int egral complement in t he service of such
summo ns by publicat ion. See Secs. 7 and 15, Rule 14,
and the comment s t her eunder.
Sec. 14. Notice of lis pendens. — In an a ct i o n

aff ect i n g the title or the right of p o s s e s s i o n of real
p ro p e rt y , the p l ai n t i f f an d the d e f e n d a n t , wh e n
af f i rm at i v e re li e f i s c l a i m e d i n hi s a n s w e r , ma y
record in the office of the regi st ry of d eed s of the
p rovi n c e in wh i c h the p rop ert y i s si t u at e d a n ot i ce
o f the p e n d e n c y o f the act i on . Said n ot i c e shal l
con t ai n the n ame s o f the p art i e s and the object o f
the a c t i o n o r d e f e n s e , an d a d e s c r i p t i o n o f the
p rop e rt y in that p rovi n c e affect ed th ereb y . Only
from the tim e of filing su c h n ot i c e for record shall
a p u r c h a s e r , o r e n c u m b r a n c e r o f the p r o p e r t y
affect ed t h ereb y , b e d ee m e d t o hav e c o n s t ru c t i v e
n ot ice of the p e n d e n c y of the act i on, and only of it s
p e n d e n c y agai n s t the p art i e s d e s i g n a t e d b y th ei r
real n ames .
The n o t i c e of lis pendens hereinabov e
m e n t i o n e d ma y b e can c e l l e d on ly upo n order o f the
cou rt, after p rope r s h o w i n g that the n ot ice i s for
the p u rp o s e o f m o l e s t i n g the a d v e r s e p a rt y , o r
t hat i t i s no t n e c e s s a r y t o p ro t e c t the ri g h t s o f
the part y wh o cau se d i t to be rec o rd e d . (24a, R14)
NOTES
1. A notice of lis pendens, under the circu mst ances

and the condit ions provided in this section, may be recorded
at the inst ance of the int erest ed part y at any t ime dur ing
the pendenc y of t he act ion and not necessar ily at the
time of the filing of the complaint or the answer of the
part y concerned.
238
RUL E 1 3 FI LIN G AN D S E R VI C E O F P L E A D I N G S , SE C . 1 4
2. A notice of lis pendens is int ended to protect the

real right s of the part y who caused the regist rat ion thereof
(Natano vs. Esteban, L-22034, Oct. 28, 1966). It
ser ves as a war nin g to prospect ive e ncu mbr a ncer s or
pur cha ser s t hat t hey should keep t heir hands off t he
propert y unless t hey wish to gamble on the result of the
lit igat ion invo lving the same (Bisaya Land Trans. Co.,
Inc. vs. Cuenco, L-18173, April 22, 1968; Laroza, et al.
vs. Guia, L-45252, Jan. 31, 1985; cf. Tanchoco, et al. vs.
Aquino, et al., L-30670, Sept. 15, 1987). The part y who
had the not ice a nno t at e d and who won the lit igat ion
over the pr opert y has the bet t er right as against one
who bo ught it wit h such a nno t at io n (Heirs of Maria
Marasigan vs. IAC, et al., G.R. No. 69303, July 23, 1987).
3. Where t he notice of lis pendens is limit ed to a one-

half undivided int erest in the propert y in lit igat ion, t he
owner of the ot he r half ha s t he r ight to sell his u nd i v id e
d pro indiviso shar e (Mercado vs. Viardo, L-14127, Aug.
21, 1962).
4. A notice of lis pendens cannot be ordered to be

cancelled on an ex parte motion. There should be notice
to the part y who caused such notice to be recorded so
t hat he may be hear d to show to the court t hat t he notice
of lis pendens is necessar y to prot ect his right s and is
not for the pur po se of mo lest ing t he adver se part y
(Punongbayan vs. Pineda, et al., G.R. No. 58193, Aug. 30,
1984). A not ice of lis pendens canno t be ordered to be
cancelled upon the mere filing of a bond by the part y on
whose tit le the notice is annot at ed, as this sect io n pro vide
s for only two i ns t a nc e s whe n such cancellat ion may be
aut horized (Tan, et al. vs. Lantin, et al., L-28526, July
7, 1986).
5. However, under except ional circumst ances, the
court can o rder the cancellat io n of t he not ice of lis
pendens e s p e c ia l l y w her e suc h c i r c u m s t a n c e s ar e
imputable to the party who caused the annot at ion of said
239
notice, as where the lit igat ion was unduly prolonged to

the p r e ju d ic e of the d e fe nd a n t be c a u s e of s e ve r a l
cont inuances procured by the plaintiff (Mun. ofParahaque
vs. Rovira, 55 Phil. 1000). Also, where the case which is
the basis for the lis pendens notat ion was dismissed for non-
prosequitur on the part of the plaint iff (Lazaro vs. Mariana,
59 Phil. 627), or judgment was rendered against the p ar t y
who cause d the r e c o r d i n g o f sai d not ice (Capitol
Subdivision, Inc., et al. vs. Montelibano et al., 109 Phil.
546), said notice is deemed ipso facto cancelled.
6. Lis pendens is a Lat in t erm which lit erally means

a pending suit or lit igat ion, while a notice of lis pendens
is an anno uncement to the whole world t hat a part icular
real propert y is in lit igat ion, serving as a war ning t hat
one who acqu ir es an int er es t over the said pro pert y
does so at his own risk. It is a rule founded upon reasons
of public policy and necessit y.
As such, a notice of lis pendens cannot conceivably
be the lien or encumbrance co nt emplat ed by law. A lien
is an exist ing bur den or charge on the propert y, while
a notice of lis pendens is only a war ning t hat a claim or
possible charge on the propert y is pending det er minat io n
by the court. Not all claims against a propert y can be
co ns ider ed as liens w it hin the co nt e m p lat io n of law
(People vs. RTC of Manila, etc., et al., G.R. No. 81541,
Oct. 4, 1989).
7. A notice of lis pendens is proper only where t here

is an action or proceeding in court which affects the tit le
to or possessio n of real pro pe rt y (Dino vs. CA, et al.,
G.R. No. 95921, Sept. 2, 1992). It is essent ial t hat the
propert y be direct ly affected, as where the relief sought in
t he act ion includes the recovery of possessio n, or the
enforcement of a hen, or an adjudication between conflicting
claims of tit le, possession, or right of possession of specific
real propert y, or requiring its transfer or sale (Register
of Deeds vs. Mercado, 72 Phil. 353).
240
RUL E 13 F I L I N G AN D S E R V I C E O F P L E A D I N G S , SE C 14
8. In Alberto vs. CA, et al. (G.R. No. 119088 ,

June 30, 2000), it was furt her clarified that the rule of
lis pendens likewise applies to all suit s or actions which
directly affect not only t he t it le to real propert y, but also
those which are brought to est ablish an equitable est at e,
int erest or right in specific real propert y or to enforce
any lien, char g e or e nc u m br a nc e aga i ns t i t ar is in g
dur ing the pro gr ess of the suit . I t is also proper in
proceedings to declare an absolute deed of mortgage, or
to redeem from a foreclosure sale, or to establish a t rust ,
or t o s u it s for t he s e t t l e m e n t an d a d j u s t m e n t of
part ner ship int erest s in real propert y.
9. However, where the complaint merely asks for

the payment of construct ion services and mat erials, with
damages, but does not assert any encumbrance over the
propert y on which t he unpaid construct ions were made,
the annot at ion of a lis pendens on the land is not proper.
It is only a personal act ion for collection, wit hout any
aver ment of any enforceable right, int er est or lien upon
the subject propert y.
Even if the cont ractor' s lien under Art. 2242 of the
Civil Code had been alleged in favor of plaintiff, still the
desired annot at ion would be unjustified as a collection case
is not the proper mode for the enforcement of a contractor's
lien. Furt her mor e, said Art. 2242 finds applicat ion only
where t her e is a concurrence of credit s and a showing
t hat defendant ' s pro pert y was insufficient to pay the
concurring debt s, or t hat the claim was in connect ion
with insolvency or other act ions where claims of preferred
cr edit or s have to be ascer t ained (Atlantic Erectors,
Inc. vs. Herbal Cove Realty Corp., G.R. No. 148568,
Mar. 20, 2003).
10. For a furt her discussion of the other legal aspects
and effects of a notice of lis pendens, see Romero vs. CA,
et al. (G.R. No. 142406, May 16, 2005).
241
RULE 14
S UM M O N S
S ect i o n 1. Clerk to issue summons. — Up o n the

fi li n g o f the c o m p l a i n t an d the p a y m e n t o f the
r e q u i s i t e l e g a l f e e s , the c l e r k o f C o u rt s h a l l
fo rt h wi t h i ssu e the c o rre s p o n d i n g s u m m o n s t o the
d e f en d a n t s , (la )
Sec. 2 . Contents. — The s u m m o n s s h a l l be

d i rect e d t o the d ef en d an t , si gn e d b y the clerk o f
Cou rt UNDER seal, an d con t ai n: (a) the nam e of the
Cou rt an d the n ame s of the p art i es to the act i on; (b) a
d i rect i o n that the d ef en d an t an sw e r wi t h i n the time
fixed by t h es e Rules; and (c) a not i ce that u n les s the
d e f e n d a n t s o a n s w e r s , p l a i n t i f f wi l l t a k e
j u d g m e n t by d efau lt an d ma y be gra n t e d the relief
ap p li e d for.
A c o p y o f the c o m p l a i n t an d o r d e r for
a p p o i n t m e n t of gu a rd i a n ad litem, if any, shall be
a t t a c h e d t o the o r i g i n a l an d eac h cop y o f the
s u m m o n s . (3a)
NO TES
1. Jur isdict io n cannot be acquired over the defen•

dant wit hout service of summo ns, even if he knows of
the case against him, unless he vo lunt ar ily submit s to the
jur isdict io n of the court by appear ing t her ein as t hrough
his counsel filing the corresponding pleading in the case
(Habana vs. Vamenta, et al., L-27091, June 30, 1970).
Even if jur isdict ion over him was not originally acquired
due to defect ive service of summo ns, t he court acquires
jur isd ict io n over his person by his act of subsequent ly
filing a motion for reconsiderat io n (Soriano vs. Palacio, L-
17469, Nov. 28, 1964), or by jo int ly s u b m i t t i n g a
242
RUL E 14 SUMMON S S E C S . 1-2
compromise agr ee me nt for approval of the t rial court

(Algrabe vs. CA, et al., L-24458-64, July 31, 1969), or
where he signed the compromise agreement to guarant ee
the payment of the obligat ion of the impleaded defendant s
and said agreement was approved and was made the basis
of t he jud g me n t on compro mise (Rodriguez, et al. vs.
Alikpala, et al, L-38314, June 25, 1974). But where the
d e fe nd a n t died befor e the filing of the act io n an d
su m mo n s wa s ser ved on his co -defendant , the court
never acquired jur isdict ion over the former and judg ment
as to him is a nullit y. The deceased has no more civil
p e r s o na l i t y an d eve n t he vo lu nt a r y a p p e a r a n c e o f
counsel for him will be ineffective (Dumlao vs. Quality
Plastic Products, Inc., L-27956, April 30, 1976).
2. The failure to att ach a copy of the complaint to

the su mmo ns (Pagalaran vs. Ball at an, et al., 13 Phil.
135) or a copy of the order appoint ing a guardian ad litem
(Castaho vs. Castano, 96 Phil. 533) are mere technical
defects and the service of summo ns vests jur isdict ion in
the Co urt over the d e fe nd a n t who may t he r e b y b e
declared in default for failure to file an answer.
3. . Where t he defendant has already been

served wit h su m mo n s on the or ig ina l co mplaint , no
fur t her summo n s is r equir ed on t he ame nded
co mplaint if i t does not introduce new causes of
action (Ong Peng vs. Custodio, L-14911, Mar. 25,
1961); bu t wher e the d e fe nd a n t wa s dec lar e d i n
de fau lt on the or ig ina l complaint and the plaint iff
subsequent ly filed an amended complaint, new summons
must be served on the defendant on the amended
complaint as the original complaint was deemed
wit hdr awn upon such amend ment (Atkins, Kroll & Co.
vs. Domingo, 44 Phil. 680).
4. . F u r t h e r m o r e , i f the d e fe nd a n t ha d not
yet appeared by filing adversar y pleadings and an
amended complaint int roducing new causes of act ion
is filed, a
243
new summo ns must be served upon him as regards the

amended complaint ; ot herwise, the court has no power
to try the new causes of action. Simply sending a copy
of the a mended complaint to him, under such circum•
st ances, is not equivalent to service of summo ns t her eon.
Ho wever, i f the de fe nd a n t had a lr ead y ap pe ar e d in
r espo nse to the first su mmo n s by filing a mot ion to
dismiss or an answer, he was, t herefore, already in court
when the a mended complaint was filed, in which case
mere service of the a me nded co mp la in t upon him i s
suffic ient w it ho u t the need for new s u m mo n s to be
served (Ong Peng us. Custodio, supra).
Sec . 3. By whom served. — The s u m m o n s ma y be

served by the sheriff, his d ep u t y , or ot h e r p rop er
Cou rt o f fi c e rs , o r for j u s t i f i a b l e re a s o n s b y an y
su i t ab l e p erso n au t h o ri ze d by the Cou rt i s s u i n g the
su m m on s . (5a)
Sec. 4 . Return. — Wh e n the s e r v i c e ha s b ee n

c o m p l e t e d , the se rve r sh all, w i t h i n five (5) day s
t h e re f ro m , serve a cop y of the ret u r n p e rs on a l l y or
b y re g i s t e re d mai l, t o the p l a i n t i f f s cou n s e l , an d
shall ret u r n the s u m m o n s t o the clerk wh o i ssu e d it,
a c c o m p a n i e d by p roof of servi c e. (6a)
Sec. 5. Issuance of alias summons. — If a

s u m m o n s i s r e t u r n e d w i t h o u t b e i n g s e rv e d o n
an y o r al l o f the d e f e n d a n t s , the s e r v e r s h a l l
als o serv e a cop y of the ret u r n on the p l a i n t i f f s
c o u n s e l , s t a t i n g the r e a s o n s for the f a i l u r e o f
se rvi ce , wi t h i n five (5) day s t h eref ro m . In suc h a
case , o r i f the s u m m o n s ha s bee n lost, the clerk, o
n d e m a n d o f the p la i n t i f f , ma y i s s u e a n ali a s
s u m m o n s . (4a)
244
RUL E 14 SUMMON S S E C S . 6- 7
NOTES
1. The e nu mer at io n in Sec. 3 of the persons who

may validly serve su mmo ns is exclusive. Thus, where
summo ns was served, wit hout aut horit y grant ed by the
court, by a police sergeant (Sequito vs. Letrondo, 105 Phil.
1139), by a po st mast er (Olar vs. Cuna, L-47935, May 5,
1978), or by a pat ro lma n (Bello vs. Ubo, et al., L-30353,
Sept. 30, 1982), such service was invalid and the court
did not acquire jur isdict io n over the defendant .
2. Proof of service is r equir ed to be given to the

plaint iffs counsel in order to enable him to move for a
default order should t he defendant fail to answer on t ime
or, in case of non-service, so t hat alias summo ns may be
sought. In eit her case, under this amended section, the
ser ver mus t serve a copy of t he r et ur n on p la int i f f s
counsel wit hin 5 days from complet ion or failure of the
service, which r equ ir e me n t was absent in the former
Rules.
Sec . 6. Service in person on defendant. — Wh en •

eve r p ra ct i cab le, the su m m on s shall be served by
h an d i n g a cop y t h ereo f to the d efen d an t in p erson ,
or, i f h e re f u s e s t o re c e i v e an d si g n for it, b y
t e n d e ri n g i t to him. (7a)
Sec. 7. Substituted service. — If, for ju st i fi ab l e

cau s e s , the d e f e n d a n t can n o t be serve d wi t h i n a
r e a s o n a b l e t i m e a s p r o v i d e d i n the p r e c e d i n g
secti on, servi ce may be effected (a) by leavi n g copi es
of the su m mo n s at the d efen dant ' s re si d en c e wit h
som e p e rso n o f su i t ab l e age and d i s c re t i o n th e n
re s i d i n g t h e re i n , or (b) by le avi n g the cop i e s at
d efend ant ' s office or regu lar place of b u si n es s wit h
some c o m p et e n t p erso n in charge thereof. (8a)
245
NOT E S
1. T hese two sect io ns pro vide for two modes of

service of summons. The third mode is service of summo ns
by publicat ion (Secs. 14, 15 and 16). The court may also
provide for any other manner as it may deem sufficient
(Sec. 15).
2. . S u m mo n s ca nno t be ser ved by ma il.

Wher e service of summo ns is made by publicat ion, "a
copy of t he summo n s and order of t he court shall be
sent by regist ered mail to the last known address of
the defen• dant " (Sec. 15). That resort to regist ered
mail is only co mplement ar y to service of summo ns by
publicat ion, but i t does not mean t hat service by
regist ered mail alone would suffice. Thus, Sec. 22 of
the former Rule ent it led "Proof of service by registered
mail," which creat ed t hat mis i mp r e ss io n , a lt ho ug h i t
act uall y r e fer r ed only to t he r egist er ed mail as a
co mp le me nt in s u mmo n s by pu b l ic at i o n , ha s bee n
e l i m i n a t e d an d ha s not bee n repr oduced in t his
revised Rule. For t hat mat t er , the pur pose it int ended
to serve is at t ended to by Sec. 13, Rule 13.
3. In eject ment cases, being in personam, personal

service of summo ns on the defendant wit hin t he st at e of
the forum is essent ia l to acquire jur is dict io n over his
person, hence su mmo ns by publicat ion is null and void
(Ilaya Textile Market, Inc. vs. Ocampo, et al, L-27823,
Mar. 20, 1970).
4. Where the action is in personam and the defen•

dan t i s in the P hi l ip p i ne s , ser vice mus t be mad e in
accordance wit h Sec. 7. Subst it ut ed service should be
availed of only where the defendant cannot be prompt ly
ser ve d in per so n (Litonjua vs. CA, et al, L-46265,
Oct. 28, 1977).
246
RUL E 14 SUMMON S SE C . 8
5. The impossibilit y of personal service should be

explained in t he proof of service showing that efforts
were exert ed therefor, hence the resort to subst it ut ed
service (Keister vs. Navarro, et al., L-29067, May 31,
1977) and such facts must be report ed in the proof of
ser vice, o t her w is e the su bst it ut e d service i s invalid
(Busuego vs. CA, et al, L-48955, June 30, 1971; Arevalo,
et al. vs. Quilatan, et al., G.R. No. 57892, Sept. 21, 1982;
Ponio, et al. vs. IAC, et al., G.R. No. 66782, Dec. 20, 1984;
Venturanza vs. CA, et al., G.R. No. 77760, Dec. 11, 1987;
Samartino vs. Raon, et al, G.R. No. 131482, July 3, 2002).
Where, however, the subst it ut ed service of summo ns
UNDE R such cir cu mst ance s was not objected to by t he
defendant at the t rial where he vo lunt arily appeared by
counsel and t his objection was raised only for the first
time on appeal, t here was no quest ion t hat said summo ns
was actually and timely received by the defendant . The
doctrine in the aforecited cases was not applied and such
s u bs t it ut e d ser vice of su m mo n s was declar ed valid.
What ever defect t here was in such mode of service was
deemed waived and the court had acquired jur isdict ion
over the p er so n of the d e fe nd a n t by his vo lu nt a r y
submissio n t her et o (Boticano vs. Chu, G.R. No. 58036,
Mar. 16, 1987; cf. Umandap vs. Sabio, Jr., et al, G.R.
No. 140244, Aug. 29, 2000).
6. Alt hough the wife was not personally served with

summons, the service of such summons on her husband
was binding on her, where her husband apprised her of
t hat fact by t elegr am and she was also served wit h a
copy of the writ of preliminar y at t achme nt issued in the
case; hence, she was duly alert ed to the filing and pen•
dency of the act ion against her (De Leon vs. Hontanosas,
et al, L-40377, Oct. 29, 1975).
Sec. 8. Service upon entity without juridical

personality. — Whe n p erson s associ at ed in an entity
247
wi t h ou t j u ri d i ca l p e rs on a li t y are su e d UNDER the

n am e b y wh i c h t he y are g e n e ra l l y o r c o m m o n l y
k n o w n , s e r v i c e ma y b e e f f e c t e d u p o n al l the
d e f e n d a n t s b y s e rv i n g upo n an y on e o f th em , o r
upo n the p erso n in charge of the office or p lace of
b u s i n e s s m a i n t a i n e d i n su c h n a m e . Bu t su c h
servi ce shall not bind i n di vidu ally any p erson wh os e
c o n n e c t i o n wit h the en t i t y has , upo n du e n ot i ce ,
bee n severe d before the act i on wa s brou gh t . (9a)
NOT E S
1. As a general rule and as provided in Sec. 1 of

Rule 3, only nat ur al or juridical persons may be part ies
in a civil act ion, but "ent it ies aut hor ized by law" may
likewise be part ies to a suit. Accordingly, Sec. 15 of said
Rule provides t hat an ent it y wit hout jur idical per sonalit y
may be sued under the cir cumst ances prescribed t her ein
in connect ion wit h a t ransact ion it may have ent er ed into
and the pr esent section provides the rule for summo ns
t hereon.
I t mus t no net heless be observed t hat such ent it y
w it ho ut jur idica l per so nalit y can be sued, but cannot
sue by init iat ing an original civil action. However, it is
s u b m i t t e d t hat as a m a t t e r of fa ir nes s an d logica l
procedure, once it is impleaded as a defendant to a suit,
i t may also file co u nt er c la i ms , cro ss- cla ims or ot he r
init iat ory pleadings for claims it may properly avail itself
of as, and since it is already, a part y to a suit.
Also, the previous provisions of Sec. 9 of this Rule
on this mat t er referred to "persons associated in business,"
t hus giving rise to the impression t hat only associat ions
engaged in business are co nt emplat ed t her ein and can be
sued as such defendant s. This section has been revised to
refer to and include "perso ns asso ciat ed in an ent it y
w it ho u t jur id ica l per so na l it y, " since asso ciat io ns not
engaged in business or commercial act ivit y, such as civic
248
RUL E 14 SUMMON S S E C S . 9 -1 0
associat ions or organizat io ns, can also commit act ionable

wrongs which can be a cause of action in a civil case.
2 . Wher e the act io n wa s br o ug h t a g a i n s t the
"Cerisco Blackcat Tr ading, " which des ig nat io n was a
combinat ion of the t r ade mar k and business name under
which t he o wner s of t he e s t a b l i s h m e n t were do ing
business, the summo ns served upon the "president/owner/
manager" of said firm, alt hough they were not impleaded
as defendant s in the complaint, was valid and the court
acquir ed jur isd ict io n over t hei r per sons as the same
complied wit h the provisions of Sec. 9 (now, Sec. 8) of
this Rule on service upon associat ions (Ablaza vs. CIR,
et al, L-33906, Dec. 21, 1983).
Sec. 9. Service upon prisoners. — W h e n the

d e f e n d a n t i s a p r i s o n e r c o n f i n e d in a j ai l or
i n st i t u t i on , s e rvi ce shall be effected upo n hi m by
the officer h a vi n g the m a n a g e m e n t of suc h jail or
i n st i t u t i o n wh o i s d ee m e d d e p u t i ze d as a sp eci al
sheri ff for said p u rp ose . (12a)
Sec. 10. Service upon minors and incompetents. —

When the d efen d an t i s a min or, i n san e or ot h e rwi s e
a n i n c o m p et e n t , servi c e shall b e mad e upo n hi m
p erson al l y and on hi s legal gu a rd i a n i f he ha s one,
or i f n o n e , u p o n hi s g u a r d i a n ad litem w h o s e
a p p o i n t m e n t shall be ap p li ed for by the plaintiff.
In the cas e of a min or, servi ce ma y also be made
on his father or mot h er. (10a, 11a)
NOTES
1. The import ant change introduced in Sec. 9 of this

Rule is the deput izat ion as a special sheriff of the head of
the penal inst it ut io n for the service of summo ns upon a
pr isoner confined t her e in. Consequent ly, t hat officer
who has the manage ment of the prison facility shall be
249
charged with t he dut y of complying wit h the provisions

of Secs. 4 and 5 of t his Rule relat ive to the r et ur n on the
summo ns on the prisoner.
2. Wit h regard to Sec. 10, the changes consist of
the pr esent require ment t hat summo ns should be served
upon the minor, regardless of his age, and upon his legal
guardian or also upon eit her of his par ent s. In the case
of an inco mpet ent , service must also be made on him
personally or upon his legal guar d ia n, bu t not on his
p a r e nt s u nle s s , o bvio usly, whe n t he y ar e his lega l
guar d ia ns. In any event , i f the minor or inco mpet ent
ha s no legal gu ar d ia n , the plaint iff m us t o bt ain the
appo int ment of a guar dian ad litem for him.
Sec . 11. Service upon domestic private juridical

entity. — Wh e n the d e f e n d a n t is a c o r p o r a t i o n ,
p a r t n e r s h i p o r a s s o c i a t i o n o rg a n i z e d U N D E R the
law s of the P h i l i p p i n e s wit h a j u ri d i c a l p e rso n a l i t y ,
se rvi c e ma y b e mad e o n the p re si d e n t , m a n a g i n g
p a rt n e r , g e n e ra l m a n a g e r , c o r p o r a t e s e c r e t a r y ,
t re a su re r , or i n -h ou s e cou n sel . (13a)
NO TES
1. UNDE R t he for mulat io n in Sec. 13 of t his Rule

from which t his a mended sect ion was t aken, i t was held
t hat service upon a person ot her t ha n those ment ioned
t her e i n i s inva lid an d does not bind the co r po r at io n
(Delta Motors Corp. vs. Pamintuan, et al., L-41667,
April 30, 1976, cit ing Reader vs. District Court, 94 Pac.
2nd 8581, holding t hat service of su mmo ns on the wife of
the corporate secretary was not binding on the corporat ion;
cf. AM Trucking, Inc. vs. Buencamino, et al., G.R.
No. 62445, Aug. 31, 1983). But in Summit Trading &
Dev. Corp. vs. Avendano, et al. (G.R. No. 60038, Mar. 18,
1985), summo ns for the corporat ion served on the secretary
of the president t hereof was held to be binding on said
250
corporat ion as the secretary was considered an "agent"

of the corporat io n. The same is t rue where summo ns
was ser ved on the a d m i n ist r at ive Chief of Finance of
defendant corporat ion (Far Corp., et al. vs. Francisco,
etc., et al., G.R. No. 57218, Dec. 12, 1986).
2. Also, it was ruled t hat service of summo ns upon

the a ss ist a nt gener al ma nager for operat ions of a cor•
porat ion, holding office at a sub-st at ion is valid as he is,
in effect, a "manager" or "agent" of the corporat ion (Villa
Rey Transit, Inc., et al. vs. Far East Motor Corp., et al., L-
31339, Jan. 31, 1978) even if t he papers were lat er left wit h
the t eller due to the refusal of said assist ant general
ma nager to receive the same upon the t ender t hereof to
him. Wher e, however, su mmo n s in a case against a
co rpor at io n, wit h hea d office in Manila but wit h an
agenc y in Cebu, wa s ser ved on its su ppo sed br anc h
ma nager in Cebu but he apparent ly bet rayed the t rust
of the de fe nda nt cor porat io n by allowing an order of
default to be t aken against it, it was held t hat summo ns
was not validly served and no jur isdict ion was acquired
over the defendant corporat ion (First Integrated Bonding
& Insurance Co., Inc. vs. Dizon, etc., et al., G.R. No. 61289,
Oct. 27, 1983).
3. Along the same rat ionale, it was declared t hat a

lawyer who had made two special appearances in court
in behalf of a defendant corporat ion, to challenge the
validit y of service of summo ns upon it, is an agent of
said corporat ion under Sec. 3 of this Rule and summo ns
intended for said corporat ion may validly be served on
him (Filoil Marketing Corp. vs. Marine Dev. Corp. of the
Phil., L-29636, Sept. 30, 1982; Lingner & Fisher GMBH
vs. IAC, et al, G.R. No. 63557, Oct. 28, 1983).
4. The foregoing doctrines were obviously dictated
by the considerat ion t hat the former Sec. 13 of t his Rule
allowed service upon a defendant corporat io n to "be
made on the president , manager, secretary, cashier, agent
251
or any of its directors." The aforesaid t er ms were obvi•

ously ambiguous and suscept ible of broad and so met imes
illogical int er pr et at io ns, especially t he word "agent" of
the corporat ion. The Filoil case, involving the lit igat ion
lawyer of the corpor at io n who precisely a pp ear e d to
challenge the validit y of service of summons, but whose
very appe ar ance for t hat pur po se was seized upon to
validat e the defective service, is an illust rat io n of the need
for t his revised sect ion wit h limited scope and specific
t erminology. Thus, the absurd result in the Filoil case
necessit at ed the a me nd me nt per mit t ing service only on
the in-house counsel of the corporat ion who is in effect
an emplo yee of the corporat ion, as dist ingu is hed from
an independent pract it ioner.
5. . The aforest at ed considerat ions

not wit hst anding, i t was believed t hat the ult imat e test on
the validit y and sufficiency of service of summo ns is
whet her the same and the at t achme nt s t heret o were
ult imat ely received by t he corporat ion under such
cir cumst ances t hat no undue prejudice was sust ained by
it from the procedural lapse, and t hat i t was afforded
full opport unit y to pr esent its r espo nsive p lea d ing s .
This i s bu t in accord wit h the e nt r e nc he d rule t hat
the end s of s u b s t a nt i a l just ic e should not be
su bo r d inat e d to t echn ic a l it ie s and, for which purpose,
each case must be examined wit hin t he factual milieu
peculiar to it.
T hus , i t wa s held t hat a lt ho u g h s u m m o n s wa s
served on a secret ar y of the corporat ion (not the official
corporate secret ary) and, t herefore, such service was made
on a person not aut horized to receive the same, where
said summo ns and the complaint were in fact seasonably
received by t he corporat ion from its said clerk, t here was
s u b s t a n t i a l co mp l ia nc e wit h the rul e on ser vice of
summo ns (G & G Trading Corporation vs. CA, et al., G.R.
No. 78299, Feb. 29, 1988).
252
6. However, the foregoing oscillat ing holdings were

clarified and/or overt urned in E.B. Villarosa & Partner
Co., Ltd. vs. Benito (G.R. No. 136426, Aug. 6, 1999) which
declared t hat the doct r ine of su bst a nt i a l compliance
followed under the 1964 Rules is no longer applicable in
view of the a me nd me nt s int roduced by the 1997 Rules of
Civil Procedure. It was pointed out t hat the new rule on
this point is rest rict ed, limited and exclusive, as follows:
"The designat io n of the persons or officers who
are aut hor ized to accept summo ns for a domest ic
corporat ion or part ner ship is now limited and more
clearly specified in Sec. 11, Rule 14 of the 1997 Rules
of Civil P r o cedur e. The rule now st at es 'gener al
m a n a g e r ' i n s t e a d of only ' ma na g e r ' ; 'co r po r at e
se cr et ar y ' inst ea d of 'secr et ar y'; and ' t r e a s u r e r '
inst ead of 'cashier.' The phrase 'agent, or any of
its directors' is conspicuously deleted in the new rule."
This ruling was reit er at ed in Mason, et al. vs. CA,
et al. (G.R. No. 144662, Oct. 13, 2003), where service of
summo ns was declared invalid because it was served on a
filing cler k of d e fe nd a n t co r po r at io n a lt ho u g h the
lat t er appeared to have event ually received the same.
7. A real part y in int erest-plaint iff is one who has
a legal right, while a real part y in int erest -defendant
is one whose act or omission violates the legal right s of
t he for mer. Wher e the defe nda nt st ill exist ed as a
corporat ion when the cause of action accrued, summons
may properly be served on it even if at the time of the
issuance and receipt of summo ns it had alread y been
dissolved. A defendant corporat io n is subject to suit
even if dissolved, as co nt emplat ed in Sec. 122 of the
Corporat ion Code. It should, therefore, be amenable to
such coercive process which may be served t hrough any
of t he per so n s me nt io ned in Sec. 13 (now, Sec. 11),
Rule 12 (Rebollido, et al. vs. CA, et al., G.R. No. 81123,
Feb. 28, 1989).
253
Sec. 12. Service upon foreign private juridical entity.

— When the d ef en d an t is a forei gn p ri vat e j u ri d i cal
e n t i t y w h i c h ha s t r a n s a c t e d b u s i n e s s i n the
P h i l i p p i n e s , servi c e ma y be mad e on its re si d en t
agen t d e s i g n at e d in acco rd an c e wit h law for that
p u r p o s e , or, i f t h e r e b e n o su c h a g e n t , o n the
g o v e rn m e n t official d e si g n at e d by law to that effect,
o r o n an y o f it s o f f i c e r s o r a g e n t s w i t h i n the
Ph i l i p p i n e s . (14a)
NOTES
1. This section has been amended to subst it ut e the

phr ase "foreign pr ivat e juridical ent it y which has t ran•
sacted business in t he P hilippines," being more embracing
and accurat e, for the provision in the former Section 14
of t his Rule which referred to a "foreign corporat ion, or
a joint non-stock company or associat ion, doing business
in the Philippines."
2. . Former ly, where the foreign privat e

corporat ion had no r esident agent in t he P hilippines or
officers or ot her agent s here, service of summo ns was
made on the go ver nme nt officials des igna t ed by law, to
wit: (a) for banking, savings and loan or t rust
corporat ions, upon the S u p e r i nt e nd e n t of Bank s (Sec.
17, R.A. 337); (b) for insurance corporat ions, on the
I nsurance Commissioner (Sec. 177, Insurance Act, as
amended by Act 3152); and
(c) in the case of ot her corporat ions, on the Secr et ar y of
Commerce (Sec. 72, Act 1259, as amended by CA. 287,
R.A. 337 an d R.A. 1055). Ho wever, Sec. 123 of the
Co r po r at io n Code now pro vides t hat whe n a foreign
pr ivat e corporat io n applies for a license to do business
in the P hil ipp ines, i t shall be gr ant e d subject to t he
condit ion, inter alia, t hat if it ha s no r es ide nt agent ,
summo ns and processes int ended for it shall be served
on the Securit ies and Exchange Commission.
254
3. Where the service of su mmo ns is made on the

go ver nment official des ignat ed by law, the defe ndant
corporation has 30 days from its receipt of the summo ns
wit hin which to file it s a nswe r (Sec. 2, Rule 11). If
served on its resident agent, officers or other agent s in
the Philippines, the 15-day r eglement ar y period applies
(see Facilities Management Corp. vs. DelaOsa, L-38649,
Mar. 28, 1979).
4. The former Sec. 14 of t his Rule required, as a

condit ion sine qua non, t hat the foreign corporat ion is
doing business in the Philippines. In the absence of proof
thereof, bu t the claim of t he plaint iff is based on a
cont ract wit h said foreign corporat ion which provides
t hat all cont roversies ar is ing from said contract "shall
fall under the jur isdict ion of Philippine Courts," the suit
may be in s t it u t e d in the P h i l ip p ine s and ser vice of
summo ns may be made by publicat ion under a liberal
applicat io n of Sec. 17 (now, Sec. 15) of t his Rule in
relat ion to Rule 4 (Lingner & Fisher GMBH vs. IAC,
et al., supra).
It has, however, been held t hat a foreign corporation,
even if it is not doing business in the Philippines, may be
sued for acts done against persons in this country under
the rat ionale t hat even if it is not doing business here, it
is also not barred from seeking redress from Philippine
co urt s (Facilities Management Corp. vs. De la Osa,
supra; Wang Laboratories, Inc. vs. Mendoza, et al., G.R.
No. 72147, Dec. 1, 1987). Note t hat Sec. 12 now merely
r equ ir es t hat t he foreign corporat io n has transacted
business here.
Sec. 13. Service upon public corporations. — When

the d e f e n d a n t i s the Rep u b li c of the Ph i li p p i n es ,
servi ce may be effect ed on the Soli citor General; in
cas e of a p ro v i n c e , city or m u n i c i p al i t y , or like
public co rp o rat i on s, servi ce may be effected on its
265
RUL E 14 R E M E D I A L LA W C O M P E N D I U M S E C S . 1 4 -1 6
e xe c u t i v e h ead , or on suc h ot her officer or offi cers

as the law or the cou rt ma y d i rect. (15)
Sec. 14. Service upon defendant whose identity or

whereabouts are unknown. — In any act i o n wh er e the
d e f e n d a n t i s d e s i g n a t e d as an u n k n o w n own er , or
the like, or wh e n e v e r his wh e re a b o u t s are u n k n o w n
an d c a n n o t b e a s c e r t a i n e d b y d i l i g e n t i n q u i ry ,
se rv i c e may , b y leav e o f cou rt , b e effect e d u po n
hi m b y p u b l i c a t i o n i n a n e w s p a p e r o f g e n e r a l
ci rcu l at i o n an d in suc h p lace s an d for su c h tim e as
the Cou rt ma y order. (16a)
Sec. 16. Extraterritorial service. — Wh e n the

d e f e n d a n t doe s not resi d e an d i s not found in the
P h i l i p p i n e s , an d the act i o n affect s the p e r s o n a l
st at u s of the p lai n t i ff or re lat e s to, or the su b j ec t of
wh i c h is, p rop ert y wi t h i n the P h i l i p p i n e s , i n wh i c h
the d e f e n d a n t ha s or clai m s a lien or i n t ere st , act u a l o
r c o n t i n g e n t , o r i n w h i c h the re l i e f d e m a n d e d
c o n s i s t s , w h o l l y o r i n p a rt , i n e x c l u d i n g the
d e f en d a n t from an y i n t eres t th erei n , or the p rop e rt y
o f the d e f e n d a n t ha s b ee n a t t a c h e d w i t h i n the
P h i l i p p i n e s , s e rv i c e may , b y l e a v e o f c o u rt , b e
ef fect ed ou t of the P h i l i p p i n e s by p erson a l se rvi ce
as UNDER sect i o n 6 ; or by p u b li cat i o n in a n e w s p a p e r
of gen e ra l ci rcu l at i o n in suc h p lac e s an d for suc h
tim e as the Cou rt ma y order, in wh i c h cas e a cop y
of the s u m m o n s and ord er of the Cou rt shall be sen t
by re g i s t e re d mail to the last kn ow n ad d re s s of the
d e f en d a n t , o r i n an y ot he r m an n e r the Cou rt ma y
d e e m su f fi ci en t . An y ord e r g r a n t i n g su c h leav e
sh all speci fy a re a s o n a b l e ti me, wh i c h sh all not be
les s t h a n si xty (60) day s after n ot i ce, wi t h i n wh i c h
the d e f e n d a n t mu s t an sw e r . (17a)
266
RUL E 14 SUMMON S S E C S . 1 4 -1 5
NOTES
1. Sec. 15 provides for the four inst ances wherein

ext r at er r it or ial service of summo ns is proper. In any of
such four inst ances, service of summo ns may, by leave
of court, be effected by personal service, by publicat io n
wit h a copy of the su mmo ns and the court order sent
by regist ered mail, or in any ot her ma nner which the
court may deem sufficient. Where summonses were sent
to defendant s who were residing abroad, by regist ered
mail which they duly received and even filed a pleading
quest ioning such mode of service, the third mode of service
was subst ant ially complied wit h and such service is valid,
especially where the court t hereaft er granted t hem 90 days
w it hin which to file t he i r answ e r (De Midgely vs.
Ferandos, L-34313, May 13, 1975; Carioga, et al. vs.
Malaya, et al., L 48375, Aug. 13, 1986).
2. Where t he husband is a no nres ident , but his wife

is a resident and is his attorney- in-fact who even com•
menced an act ion in his behalf, in a complaint against
said no nr es id e nt defendant , su mmo ns may validly be
served on his wife and the court has jur isdict ion over said
no nr es ide n t (Gemperle vs. Schenker, et al., L-18164,
Jan. 23, 1967).
3. . UNDE R Sec. 15 of t hi s Rule,

e xt r a t e r r it o r i a l service of summo ns is proper only in
four inst ances, viz.:
(a) when the act ion affects the perso nal st at u s of the
plaintiff; (b) when the action relat es to, or the subject of
which is propert y wit hin t he P hilipp ines in which t he
defendant ha s or claims a lien or int er est , act ual or
cont ingent ; (c) when the relief demanded in such action
consist s, wholly or in part , in excluding the defendant
from any int erest in propert y located in the Philippines;
and (d) whe n t he d e fe nd a n t no nr e s id e nt ' s pr o pert y
has been at t ached in t he P hilippines (De Midgely vs.
Ferandos, supra).
267
RUL E 1 4 R E M E D I A L LA W C O M P E N D I U M S E C S . 1 4 -1 5
4. An action for injunct ion to r est r ain defendant s

from enforcing against plaint iff its contract s for deliver y
of coconut oil to defendant s, wit h a claim for damages,
is not among those enu mer at ed. It is a personal act ion
in personam and per so na l or su bst it ut e d service, not
ext rat errit orial service, is required in order t hat Philippine
courts may acquire jur isdict ion over the defendant . This
is especially t rue wit h respect to the money judg me nt
so ugh t by pla int iff which, to be s u st a ine d , r equ ir e s
per so na l ser vice o n the d e fe nd a n t wit hin the St at e
which r ender ed t he judg me n t sought [Boudard, et al.
vs. Tait, 67 Phil. 170]. The e xt r at er r it o r ia l service of
su mmo n s effected on the defe nda nt s by DH L courier
ser vice wa s null and void (The Dial Corp., et al. vs.
Soriano, et al., G.R. No. 82330, May 31, 1988).
5 . Since the de fe nda nt is a no nr e s id e n t and t he

suit also involves real propert y in the P hilipp ines wherein
said defendant has an int erest , service of su m mo ns on
him by publicat ion in a local newspaper is aut hor ized by
Sec. 17 (now, Sec. 15) of t his Rule. While it may be true
t hat service of summo ns by publicat ion does not involve
any abso lut e assur ance t hat said nonr esident defend ant
sha l l t he r e b y r eceive act ua l not ice, suc h ser vice of
s u m mo n s i s r e qu ir e d not for pur po se s of phys ica l l y
a c q u ir i n g j u r i s d i c t i o n over hi s p e r s o n bu t simp l y
in p u r s u a nc e of the r e q u ir e me nt s of fair play. I t is
necessar y, however, t hat copies of the s ummo ns and t he
co mp la in t be duly ser ved a t de fe nda nt ' s las t kno w n
a d d r e s s by r e g i s t e r e d mail as a co m p le me n t to the
publicat ion. The failure to strict ly and correct ly comply
w it h t he r e q u i r e m e n t s o f the r u le s r e g a r d i n g the
mailing of said copies will const it ut e a fatal defect in the
aforesaid mode of service of summo ns (Sahagun vs. CA,
et al, G.R. No. 78328, June 3, 1991).
6 . Whe r e t he c o mp l a i n t doe s no t invo lv e the

p e r s o na l s t a t u s of p la int i ff or an y p r o p e r t y i n the
268
P h i l ip p i n e s i n whic h d e f e n d a nt s have or cla im an

int er es t or which the plaint iff ha s at t ac he d , i t is a
personal action in personam. Consequently, personal or
s u b s t it u t e d ser vice of s u m mo n s on de fe nd a nt s , not
ext r at er r it or ial service, is necessary to confer jur isdict ion
on the court. In a personal action for injunction, therefore,
ext r at err it o r ia l service of t he summo ns and comp laint
on t he no nr e s id e n t defe nd a nt s cannot confer on the
court jur isdict io n or power to compel t hem to obey its
orders (Kawasaki Port Service Corp., et al. vs. Amores,
etc., et al., G.R. No. 58340, July 16, 1991).
7. In Asiavest Limited vs. CA, et al. (G.R. No. 128803,

Sept. 25, 1998), an action was filed in Hongkong against
a Philippine r es ide nt for a sum of money. S u mmo ns
t herein was served direct ly t hrough plaint iffs Philippine
counsel upon an occupant of defendant ' s residence in
Quezon City. Thereafter, the judgment of the Hongkong
court was r end er ed and sought to be execut ed in the
Philippines, but it was resisted for lack of jurisdict ion over
the person of the defendant .
Mat t er s of procedure, such as service of summo ns, are
governed by the lex loci, in t his case, t hose of Hong•
kong. There being no proof on this score, under the rule
on processual presumpt ion t he same are deemed to be
the same as Philippine law. In the present case, such
s u m mo n s ser ve d on a no nr e s id e n t de fe nd a n t in an
act ion in personam is not valid since e xt r at er r it o r ia l
service of summo ns on nonresident s is allowed only in
the inst ances provided under Sec. 17, Rule 14. Service of
s u m mo n s in t hi s case being inva lid, the Ho ngko n g
judg me nt cannot be given effect here, no jur isd ict io n
having been acquired over the defendant.
8. A newspaper of general circulat ion for purposes
of summo ns by publicat ion, is one which is published for
the disseminat io n of local news and general information,
has a bona fide subscript ion list of subscribers, is published
259
at regular int ervals and is not published for or devoted

to the int erest of a part icular group of persons (Basa vs.
Mercado, 61 Phil. 632). See also the provisions of R.A.
4883 , which r equ ir ed t hat the ne ws pa p e r mus t have
been regular ly published for at least two years before
the dat e of the publicat ion in quest ion, and P.D. 1079
(Jan. 28, 1977) as discussed in Fortune Motors (Phil.),
Inc. vs. Metropolitan Bank, etc., et al. (G.R. No. 115068,
Nov. 28, 1996).
Sec . 16. Residents temporarily out of the

Philippines. — Wh e n an y a c t i o n i s c o m m e n c e d
agai n s t a d e f e n d a n t wh o ord i n ari ly re si d e s w it h i n
the P h i l i p p i n e s , but wh o i s t emp o ra ri l y ou t of it,
se rvi ce may, by leav e of court, be also effect ed ou t
o f the P h i l i p p i n e s , a s UNDER the p re c e d i n g sect i on .
(18a)
Sec . 17. Leave of court. — Any ap p li c at i o n to the

cou rt UNDER thi s Ru le for leave to effect se rvi c e in
an y man n e r for wh i c h leav e of Cou rt i s n e c e s s a r y
sh all be mad e by mot i o n in wri t i n g , s u p p o rt e d by
a f f i d a v i t o f the p l a i n t i f f o r som e p e r s o n o n hi s
b eh alf, s e t t i n g fort h the g ro u n d s for the ap p l i •
cat i on . (19)
NOT E S
1. Under t hese provisions, service of su mmo ns by

publicat ion is aut horized, wit h prior leave of court:
a. Where the ident it y of the defendant is unknown;
b. Where t he wher eabout s of the defendant is un•
known;
c. Where the defendant does not reside and is not
found in t he P hilipp ines bu t t he suit can pr oper ly be
ma int ained against him here, being in rem or quasi in
rem; and
260
d. Wher e the d e f e nd a n t is a r e s id e n t of the

Philippines but is t emporar ily out of the country.
2. S u m mo n s in a su i t in personam a g a i n s t a
resident of the Philippines t emporarily absent therefro m
may be validly effected by su bst it ut ed service UNDE R
Sec. 7 of t his Rule. It is immat er ia l t hat the defendant
does not in fact receive act ual notice, and the validit y of
such service is not affected. While the present Sec. 15
provides for modes of service which may also be availed
of in t he case of a resident defendant t emporarily absent,
the normal mode of service on such t emporarily absent
defendant is by such subst it ut ed service under Sec. 7
because personal service outside the country and service
by publ icat io n ar e not o r dinar y me a n s of su m mo n s
(Montalban, et al. vs. Maxima, L-22997, Mar. 15, 1968).
However, it has also been held t hat in such cases, non•
co mpliance wit h the modes of service UNDER Sec. 18
(now, Sec. 16) is a denial of due process and r ender s
the proceedings null and void (Castillo vs. CFI of Bulacan,
G.R. No. 55869, Feb. 29, 1984).
3. . Also, it has been ruled t hat where the

defendant is a resident and the action is in personam,
summons by pu bl icat io n i s inva lid as being vio lat ive
of the due process clause. Plaint iff' s r ecour se, wher
e per so na l service fails, is to at t ac h propert ies of the
defendant under Sec. 1(f), Rule 57, t hus convert ing the
suit to one in rem or quasi in rem and su mmo ns by
publicat io n will be valid. Where plaintiff fails to or
cannot do so, the court should not dismiss the action but
should order the case to be held pend ing in the
archives, so t hat t he action will not prescribe, unt il
such time as the plaint iff succeeds in ascert aining the
defendant ' s wher eabout s or his propert ies (Pantaleon
vs. Asuncion 105 Phil. 761; Citizens Surety & Insurance
Co., Inc. vs. Melencio-Herrera, et al, L-32170, Mar. 31,
1971; Magdalena Estate, Inc. vs. Nieto, et al., G.R. No.
54242, Nov. 25, 1983; Filmerco
261
Comm. Co., Inc. vs. IAC, et al., G.R. No. 70661, April 9,
1987).
Sec. 18. Proof of service. — The p roof of s e rvi c e

of a su m mon s shall be mad e in wri t i n g by the server
and shall set forth the man n er , p lace and date of
servi ce; shall sp eci fy an y p ap er s wh i c h hav e bee n
served wit h the p roces s and the nam e o f the p erso n
wh o recei ve d the same; and shall b e swor n t o wh e n
mad e by a p erso n ot h e r tha n a sh eri ff or his d ep uty .
(20)
Sec. 19. Proof of service by publication. — If the

se rvi ce ha s bee n mad e b y p u b l i c at i o n , servi c e ma y
be p roved by the affidavit of the p ri nt er, hi s foreman
o r p ri n c i p a l cle rk , o r o f the ed i t o r , b u s i n e s s o r
a d v e rt i s i n g man ager , to whi c h affidavit a cop y of
the p u b li cat i on shall be at t ach ed, and by an affidavit
s h o w i n g the d ep o si t of a cop y of the s u m m o n s and
ord e r for p u b l i c a t i o n i n the p os t offi c e, p o s t a g e
p rep ai d, d i rect ed to the d efen d an t by regi st e red mail
to hi s last k n o w n add res s . (21)
Sec. 20. Voluntary appearance. — The d e f e n d a n t ' s

v o l u n t a r y a p p e a r a n c e i n the a c t i o n s h a l l b e
e q u i v a l e n t t o servi c e o f s u m m o n s . The i n c l u s i o n
in a mot i o n to d i smi s s of oth e r grou n d s asi d e from
lack o f j u ri s d i c t i on ove r the p erso n o f the d e f e n d a n t
shall no t be d ee me d a vol u n t a r y a p p e a ra n c e . (23a)
NOTE
1 . Any form of a p p e a r a n c e in co u r t , by the

defendant , by his agent aut horized to do so, or by attorney,
is equivalent to service except where such appear ance is
precisely to object to the jur isdict io n of the court over the
person of the defendant (Carballo vs. Encarnacion, 92
Phil. 974). See Notes 4 and 5 under Sec. 1, Rule 16.
262
RULE 15
M O TIO N S
S e c t i o n 1. Motion defined. — A m o t i o n is an
ap p li c at i o n for reli ef oth e r tha n by a p lead in g, (la )
NOTE
1. T hi s a m e n d e d de f i n it io n of a mo t io n is a
consequence of t he provisions of Sec. 1, Rule 6 which limit
the meaning of a pleading to the wr it t en st at ement of the
respect ive claims and defenses submit t ed by the part ies
for appropriat e judgment , and Sec. 2 of the same Rule
which enu mer at es the pleadings allowed. However, as
explained in the notes t hereunder, a motion may also be
considered in a broad sense as in the nat ure of a pleading
since it is among the papers filed in court. Hence, Sec. 10
of t his Rule requires a qualified applicat ion to motions of
the rules applicable to pleadings.
Sec. 2. Motions must be in writing. — All mot i on s

shall be in wri t i n g excep t t h os e mad e in ope n court
or in the cou rs e of a h eari n g or trial. (2a)
Sec. 3. Contents. — A m o t i o n sh a l l st at e the

relief sou gh t to be ob t ai n ed and the grou n d s upo n
wh i c h i t i s b ased, and i f req u i red by th es e Ru les or
n ec e s sa r y to p rove facts alleg ed t h erei n , shall be
a c c o m p a n i e d b y s u p p o rt i n g affid avi t s and oth e r
p ap ers. (3a)
Sec. 4. Hearing of motion. — Except for mot i on s

wh ic h the cou rt ma y act upo n wi t h ou t p rej u d i ci n g
the ri ghts of the ad verse party, every wri tt en motion
shall be se t for h ea ri n g by the app li can t . Every
wri t t en mot i o n req ui red to be h eard and the notice
263
of the h e a ri n g t h e re o f sh al l be se rve d in su c h a
man n e r as to en su r e its recei p t by the oth e r party at
least t h re e (3) day s before the date of heari n g , u n les s
the cou rt for good cau s e set s the h e a ri n g on sh ort e r
n ot i ce. (4a)
NOT E S
1. The except ions to the t hr ee-day notice rule in

Sec. 4 are : (a) ex parte mo t io ns, (b) ur ge n t mo t io ns
(Bautista vs. Mun. Council of Mandaluyong, Rizal, 98
Phil. 409; Supreme Investment Corp. vs. Engineering
Equipment, Inc., L-25755, April 11, 1972), (c) mot ions
agreed upon by the part ies to be heard on sho rt er notice
(Tuazon & Co. vs. Magdangal, L-15047, Jan. 30, 1962)
or joint ly submit t ed by the part ies, and (d) mot ions for
su mmar y judg ment which must be served at least 10 days
before its hear ing (Sec. 3, Rule 35).
2 . This a mended section enunciat es the general rule

t hat all wr it t en mot ions shall be set for hear ing, even if,
as just st at ed, t hat hear ing may be conducted on less t ha n
3 days advance notice. Excepted from such r equir ement
for hear ing are the so-called non-lit igable or non-lit igat ed
mot ions, mea ning those which may be acted upon by the
court wit hout prejudicing the r ight s of the adverse part y.
While a mot ion may be allowed to be filed ex parte
and is an except ion to the 3-day notice rule, it does not
necessar ily mean t hat the hear ing t hereof shall be dis•
pensed wit h. The court may still hear the same ex parte,
t hat is, in t he absence of the opposing part y, since the
court can very well see to i t t hat the lat t er' s int er est s will
be duly protect ed. An ex parte proceeding merely means
t hat i t is t aken or gr ant ed at the inst ance and for the
benefit of one part y, and wit hout notice to or co nt est at io n
by an y par t y a d ve r s e l y affect ed (Janin vs. Logan,
209 Ky. 811, 273 S.W. 531; Stella vs. Mosele, 209 III.
App. 53, 19 N.E. 2d 433).
264
RUL E 15 MOTION S S E C S . 5- 6
3. It is no longer sufficient to just mail a copy of the

motion at least 3 days before the scheduled hear ing, as
this mode of service has often been abused to result in the
adverse part y' s receipt of such copy after the scheduled
hear ing due to the delay in the mails. Service of t hat
copy, UNDE R t his new sect ion, should be made in such
manner as shall ensure receipt of t hat copy at least 3 days
before the hear ing. This object ive can very easily be
achieved by perso nal service whenever feasible. For this
r easo n, Sec. 11 of Rule 13 pro vide s t hat , whe ne ve r
pract icable, service of pleadings and other papers shall be
done personally, subject to the except ions and sanct ions
specified t herein.
Sec. 6. Notice of hearing. — The n oti ce of h ea ri n g

shall be ad d ress e d to all part ies con ce rn ed , and shall
speci fy the ti m e an d date o f the h eari n g wh i c h mus t
not be later tha n te n (10) day s after the filing of the
mot i on . (5a)
Sec. 6. Proof of service necessary. — No wri t t e n

mot ion set for h ea ri n g shall be acted upo n by the
cou rt wi t h ou t proof of servi ce thereof. (6a)
NOTES
1. In the Court s of First Inst ance (now, Regional

Trial Courts) and the lower courts, a motion which does
not contain a notice of time and place of hearing is a useless
piece of paper and of no legal effect, e.g., in the case of a
motion for reconsiderat ion of a judgment or final order, it
does not int errupt the reglement ary period (Manila Surety
& Fidelity Co., Inc. vs. Bath Construction & Co., LI6636,
June 24, 1965; cf. Sebastian vs. Cabal, L-25699,
April 30, 1970). The same is t rue where the date for the
hear ing of t he mot ion is unint ellig ible , hence fatally
defective (Republic Planters Bank, et al. vs. IAC, et al.,
G.R. No. 63805, Aug. 31, 1984).
265
2. Any motion t hat does not comply wit h Secs. 4, 5 and

6 of t his Rule is a mere scrap of paper, should not be accepted
for filing and, if filed, is not ent it led to judicial cognizance
and does not affect any r egleme nt ar y period involved for the
filing of the requisit e pleading. Thus, where the motion
is (a) directed to the clerk of court, not to the par t ies, and
(b) merely st at es t hat t he same is submit t ed "for the
resolut ion of the court upon receipt thereof," said motion is
fatally defect ive (Cledera, et al. vs. Sarmiento, et al., L-
32450-51, June 10, 1971). This rul e ha s bee n app l ie d t o
mo t io n s for new t r ia l o r reconsiderat io n where no date for
hear ing the mot ion is i n d ic a t e d (Manila Surety & Fidelity
Co. vs. Bath Construction & Co., supra; Fulton Insurance
Co. vs. Manila Railroad Co., L-24263, Nov. 18, 1967; Magno
vs. Ortiz, L-22670, Jan. 31, 1969; In the Matter of
Proceedings for Disciplinary Action Against Vicente Almacen,
L-27654, Feb. 18, 1970; Sebastian vs. Cabal, supra; Vda.
deAzarias vs. Maddela, et al., L-25932, Mar. 19, 1971; Phil.
Advertising Counselors, Inc. vs. Revilla, et al., L-31869,
Aug. 8, 1973; Sacdalan vs. Bautista, L-38014, Mar. 27,
1974; New Japan Motors, Inc. vs. Perucho, L-44387,
Nov. 5, 1976; Firme, et al. vs. Reyes, et al., L-35858,
Aug. 21, 1979).
Where the motion to dismiss, with such defective notice

of hear ing, was grounded on lack of cause of act ion and
improper venue, which grounds are resolvable on the basis
of t he co mpla int an d t he anne xe s t her et o , such erro r
a lt ho ug h not wholly excusable was gr a nt e d a liber a l
considerat io n and given due course by t he S upr eme Court
(Azajor vs. CA, et al., L-40945, Nov. 10, 1986).
3. In Andrada, et al. vs. CA, et al. ( L- 3 1 7 9 1 ,

Oct. 30, 1974), it was held t hat a "M ani fest at io n and
Mot ion" addr essed to the clerk of court asking him to
submit t he same to the court "immediat ely upon receipt
t he r eo f did not comply wit h the r equ ir e me nt s of Sec. 5,
266
RUL E 15 MOTION S S E C S . 8, 9
Rule 15 and the subsequent action of the court t hereon

did not cure the flaw, for a motion with a notice fatally
defective is a "useless piece of paper." But a motion (to
dismiss) is sufficient even if notice of the hear ing thereof
is addressed to the opposing counsel as long as it st at es
the time and place of hear ing (OMICO Mining & Ind.
Corp., et al vs. Vallejos, et al, L-38974, Mar. 25, 1975).
The provisions of Sec. 4 requiring the notice to be addressed
to the oppo sing par t y i s mer ely d ir ect or y. Wha t i s
mandat ory is the service of the motion on the opposing
counsel indicat ing the time and place of hearing (Estipona
vs. Navarro, et al, L-41825, Jan. 30, 1976; Maturan vs.
Araula, G.R. No. 57392, Jan. 30, 1982). Even if t he notice
in the motion is defective for failure to st ate the exact date
of he ar ing , the defect is cur ed by t he court ' s t akin g
cognizance t hereof and the fact t hat the adverse part y
was ot herwise notified of the existence of said pleading
(Sun Uy Giok vs. Matusa, 101 Phil. 727).
Sec. 7. Motion day. — E x c e p t for m o t i o n s

re q u i ri n g i m m e d i a t e act i on , all mo t i on s shall be
sc h e d u l e d for h ea ri n g on Friday aft ern oon s, or i f
Friday is a n on - wo rk i n g day, in the aft ern oon of
the nex t wo rki n g day. (7a)
NOTE
1. This amended section was t aken from B.P. Blg.

129 which provides:
"Sec. 16. Time and duration of sessions. — The time
and durat ion of daily sessions of the Regional Trial Courts
shall be det er mined by the S upr eme Court: Provided,
however, T hat all mo t io ns , except t hos e r e q u ir i n g
immediate action, shall be heard in the afternoon of every
Fr iday, unless it falls on a holiday, in which case the
he ar in g sha l l be held on the aft er noo n of the next
succeeding business day: Provided, further, That the
267
S upr e me Court may, for good r easo ns, fix a different

motion day in specified areas."
S ec . 8 . Omnibus motion. — S u b j e c t to the

p ro vi si on s of s ect i o n 1 of Rule 9 , a mot i o n a t t a c k i n g
a p l e a d i n g , order, j u d g m e n t , or p ro c e e d i n g shal l
i n c l u d e al l o b j e c t i o n s t h e n a v a i l a b l e , an d al l
ob j e ct i on s not so in clu d e d shall be d ee me d wai ved .
(8a)
NOTES
1. The omnibus motion rule in Sec. 8 yields to other

specific provis io ns. T hus, for inst ance, in a mot ion to
dismiss, the failure to object to the lack of jurisdict ion over
the case does not co nst it ut e waiver of t his object ion.
See Sec. 1, Rule 9, as amended, and the discussion t herein.
2. Regarding evidence on mot ions, see Sec. 7, Rule

133 and notes t her eu nder .
Sec. 9. Motion for leave. — A mot i o n for leav e to

file a p l e a d i n g or mot i o n shall be a c c o m p a n i e d by
the p l e a d i n g or mot i o n sou gh t to be ad m i t t e d , (n)
NO TES
1. The evident purpose of t his new provision is to

provide the court wit h the basis for det ermining the mer it s
of the mot ion for leave of court to file t he desired pleading
or motion. Such pleading or motion sought to be admit t ed
is now required to be at t ached to the motion for leave of
court, ot herwise the lat t er may be denied. Indeed, it is
too demanding, if not unfair to the court and the adverse
part y, to seek a ruling and t he admission of a pleading
sight unseen, so to speak, since the court will have to
fat hom the co nt ent s of the projected pleading and the
o ppo s in g p a r t y c a nno t i nt e l l i g e nt l y fo r mu l a t e his
268
RUL E 15 MOTION S SEC . 10
opposit ion to the admission thereof.
2. This part icular ly assumes significance in the filing

of amended and supple me nt al pleadings both of which
require prior leave of court. If init iat ory pleadings are
sought to be amended or supplement ed, special care must
be t aken in the admission of the same since responsive
pleadings and r eg le me nt ar y periods may be involved.
Also, the present requirement minimizes the time element
when responsive pleadings would be required. Thus, when
an amended or supple ment al complaint is att ached to the
motion for its admission and a copy thereof is necessarily
served on the defendant , his period to answer immediat ely
runs from his receipt of the court order admitt ing the same.
Ot herwise, where only a motion is filed and the same is
gr ant ed, t he plaint iff will be gr a nt ed time to file t he
amended or supple ment al complaint, the defendant will
have to wait for service on him thereof, and consequent ly
he will have furt her t ime to answer.
Sec. 10. Form. — The R u l e s a p p l i c a b l e to

p le ad i n g s shall ap p ly to wri t t e n mot i on s so far as
con ce rn s cap t i on , d esi gn at i o n , si gn atu re, and ot h er
mat t ers of form. (9a)
269
RULE 16
MOTION TO DIS M IS S
S ec t i o n 1. Grounds. — Wit hi n the tim e for but b e f o r

e f i l i n g the a n s w e r t o the c o m p l a i n t o r p l ead i n g
a s s e rt i n g a claim, a mot i o n to d i s mi s s ma y be mad e
on an y of the fol l o wi n g grou n d s :
(a) That the Cou rt ha s n o j u ri sd i ct i on ove r the
p erso n of the d e f e n d i n g party;
(b) That the cou rt ha s no j u ri sd i ct i on ove r the
su b j ect mat t e r of the claim;
(c) That ven u e i s i mp rop e rl y laid;
(d) That the p lain ti ff ha s no legal cap aci t y to
sue;
(e) T h a t t h e r e i s a n o t h e r a c t i o n p e n d i n g
b e t w e e n the sam e p art i e s for the sam e cau se ;
(f) That the cau s e of act i o n is b arred by a prio r
j u d g m e n t or by the st at ut e of li mi t at i on s ;
(g) That the p l e ad i n g a s s e rt i n g the clai m st at e s
n o cau s e o f act i on;
(h) That the clai m or d e ma n d se t forth in the
p l a i n t i f f s p l e a d i n g ha s bee n paid , w a i v e d ,
a b a n d o n e d , o r o t h e rw i s e e xt i n gu i s h ed ;
(i) T h a t the c l a i m o n w h i c h the a c t i o n i s fou n d e
d i s u n e n f o rc e a b l e UNDER the p ro v i s i o n s o f the
st at u t e of fraud s; an d
(j) Th at a c o n d i t i o n p r e c e d e n t for fi li n g the

clai m ha s not bee n comp li e d with , (la)
NO TES
1. A mot ion to dismiss under t his Rule differs from a
270
RUL E 16 M O T IO N T O D I S M I S S SE C . 1
motion to dismiss under Rule 33 on demur rer to evidence

in the following part icular s:
a. The mot ion UNDE R t hi s Rule i s gr o unde d on
preliminar y objections while t hat under Rule 33 is based
on insufficiency of evidence.
b. The motion here may be filed by any defending
part y against whom a claim is assert ed in the act ion,
while a demur r er to evidence may be filed only by the
defendant against the complaint of the plaintiff.
c. The motion under t his Rule should be filed wit hin
the time for but prior to the filing of the answer of the
defending part y to the pleading assert ing the claim against
him. The demur r er to evidence in Rule 33 may be filed
for the dismissal of the case only after the plaint iff has
completed t he pr esent at io n of his evidence.
d. The r ever sal on appeal of a dismissal ordered
under this Rule produces different effects from the same
reversal of a dismissal obtained under Rule 33.
2. The former Sec. 2 of t his Rule provided t hat a
motion to dismiss her eunder may be filed by an original
defendant , by a t hird-part y defendant , by a plaint iff in a
counterclaim, or by a co-party in a cross-claim. Alt hough
said former provision has not been reproduced in t his
amended Rule, the procedure is still the same as Sec. 1
hereof merely simplified the rule by providing t hat such
motion to dismiss may be filed by a party "(w)ithin the
time for but before filing the answer to the complaint or
pleading assert ing a claim."
3. A motion to dismiss hypothet ically admit s the
t rut h of the facts alleged in the complaint. Such admis•
sion, however, is limited only to all mat erial and relevant
facts which are well pleaded in the complaint. It does not
admit the t r ut h of mere epit het s char ging fraud, nor
allegat ions of legal conclusions, or erroneous st at ement s
of law. The hypothet ical admission of the t rut h of mat erial
271
and relevant facts well pleaded in a complaint does not

extend to inferences or conclusions drawn from such facts,
even if alleged in the complaint ; nor mere inferences or
conclusio ns from facts not st at ed; nor to ma t t e r s of,
evidence, surplusage or irrelevant mat t er s (De Dios vs.
Bristol Laboratories fPhil.J, Inc., et al., L-25530, Jan. 29,
1974); nor does it cover allegat ions of fact the falsity of
which is subject to judicial notice, for, in resolving a motion
to dismiss, the court may consider ot her facts wit hin t he
r ange of judic ia l not ice as well as r eleva n t laws and
jur ispr udence which court s are bound to take into account
(Bahez Electric Light Co. vs. Abra Electric Cooperative,
Inc., et al., G.R. No. 59480, Dec. 8, 1982). Neit her does
such hypot het ical admissio n ext end to facts which are
legally impossible, nor to facts inadmissible in evidence,
nor to facts which appear by record or document included
in the plead ings to be unfo unded (Tan vs. Director of
Forestry, et al., L-24548, Oct. 27, 1983; Marcopper Mining
Corp. vs. Garcia, G.R. No. 55935, July 30, 1986).
Except in those cases where the court may dismiss a

case motu proprio, an act ion cannot be dismissed on a
ground not alleged in the mot ion t herefor even if said
ground, e.g., pr escr ipt io n, is pro vided for in Rule 16
(Malig, et al. vs. Bush, L-22761, May 31, 1969), unless
such fact of pr escr ipt io n appear s in t he allegat io ns of
the co mplaint or in plaint iffs' evidence (Garcia vs. Mathis,
etc., et al, L-48557, Sept. 30, 1980). Wit h much more
reason should an order of dismissal be nullified if it is based
on a ground not aut horized by Rule 16, i.e., for supposedly
being moot and academic (Borje vs. CFI of Misamis Occ,
etc., et al, L-49315, Feb. 27, 1979).
4. The former doctrinal policy was t hat a part y may

challenge the jur isdict io n of the court over his person by
making a special appear ance t hro ugh a mot ion to dismiss
based on the gr o und, e.g., of inva l id it y of ser vice of
summo ns, and by filing such motion, he will not t hereby
be deemed to have submit t ed himself to the jur isdict io n of
272
RUL E 16 M O T IO N T O D I S M I S S SEC . 1
the court. However, if the same motion also raised other

g r o u nd s or invo ke d some a f f ir mat i v e r elie f which
necessarily involves the exercise of the jurisdict ion of the
court, such special appearance will be of no avail and the
part y is t hereby deemed to have submit t ed himself to the
jur isdict ion of the court. Thus, where the defendant filed
a motion to dismiss on the ground t hat summo ns served
on him was invalid and, therefore, t hat the court did not
acquire jur isdict ion over his person, but the same motion
set s forth a no t her ground under t hen Art. 222 of the
Civil Code (lack of showing t hat ear ne st efforts were
exerted to effect a compromise between members of the
same family) and prayed "for such other r elie f as may be
deemed "appropr iat e and proper," the reservat ion in said
motion t hat defendant was making a special appearance
to contest the court's jurisdict ion over his person is nullified
and should be d isr egarded (De Midgely vs. Ferandos, L-
34313, May 13, 1975). The same rule applied where the
defendant challenged the court's jurisdict ion over its person
for invalidit y of service of process but at the same time
raised the other ground of prescript ion in its motion to
dismiss (Republic vs. Ker & Co., Ltd., 124 Phil. 823).
5. However, in La Naval Drug Corp. vs. CA, et al.

(G.R. No. 103200, Aug. 31 , 1994), the S upr eme Court
decided to reexamine and abandon the foregoing doctrine.
It held t hat while lack of jur isdict ion over the person of
the defendant may be duly and seasonably raised, his
volunt ary appearance in court wit hout qualificat ion is a
waiver of such defense. Furt her more, even if he challenges
the jurisdict ion of the court over his person, as by reason
of absence or defective service of summons, and he also
invokes other grounds for the dismissal of the action under
Rule 16, he is not deemed to be in estoppel or to have
waived his objection to jurisdict ion over his person. In
support of this new doctrine, the observation may be added
t hat the defendant may after all invoke his object ions
alt ernat ively, hence he would not thereby be said to be
273
inco nsist ent ly challenging the jur isdict io n of the court

and, at the same t ime, calling for t he exercise of its
jur isdict ion. The first quest ions the jurisdict ion over his
person but the second, assuming the court has jur isdict ion
over his person, impugns its jurisdict ion over other aspects
of the case such as the fundament al requisite of jurisdict ion
over the subject - mat t er which can only be conferred by
law. Besides, t he pr e se nt at io n of all object ions t he n
available subser ves the o mnibus mot ion rule and the
conco mit ant policy against mult iplicit y of suit s.
There were, however, some differences of opinion due
to cert ain ambiguous st at eme nt s in the La Naval case.
Accordingly, Sec. 20 of Rule 14 now expressly provides
t hat the inclusion in a motion to dismiss of ot her grounds
aside from lack of jur isd ict io n over the per so n of t he
defendant shall not be deemed a volunt ar y appear ance
on his part .
6. . Wher e summo n s was not served on two of

t he defendant s and a lawyer filed, in t heir behalf but
wit hout t heir aut horit y, a mot ion for ext ension of t ime to
answer, the court does not acquire jur isdict ion over said
defendant s. Neit he r was such jur is d ict io na l defect
cured by t heir subsequent filing of a mot ion for new
trial as the same was based precisely on such defect and
to secure to said defendant s the opport unit y to be heard
(Cavili, et al. vs. Vamenta, Jr., etc., et al., G.R. No. 57771,
May 31, 1982). For obvious r easo ns , the co ns id er at io n s
discussed in De Midgely and La Naval have no
applicat ion to t his case under the c ir cumst ances
obt aining t herein.
7. The cont roversy r egar ding the ground of lack of

jur isdict io n over the nat ur e of the act ion, separat ely from
the subject thereof, led to the eliminat io n in t his Rule of
the for mer which was supposedly an innovat ive ground
in the 1964 Rules of Court. What may have been int ended
t her e i n were cases ass ig ned by law to quas i- jud ic ia l
ag e nc ie s , suc h a s i nt r a - c o r p o r a t e suit s whic h wer e
274
exc lus ive ly vest e d i n the S ec ur it ie s an d E xc ha ng e

Commission, or to special courts such as tax suit s which
were wit hin the exclusive jur isdict ion of the Court of Tax
Appeals. If so, t his would properly const it ut e lack of
jur isdict ion over the subject -mat t er if such cases are filed
in the regular t rial court s. Wit hin their respect ive levels,
the regular t r ial courts have uniform jur isdict io n wit h
regard to the nat ure of the act ions they may ent ert ain,
hence if t he objection is as to the subject or object involved,
it would necessarily be on eit her subject-matter jurisdict ion
or on venue co nsiderat ions.
8. The jur isdict ional grounds which may be invoked

under the pr esent Rule are, t herefore, confined to lack of
jur isdict ion over the person of the defending part y and
the subject - mat t er of the claim. The first has already
been discussed, but it must not be overlooked t hat the term
now used is not limited to the defendant but applies to all
defending par t ie s aga ins t whom claims are a ss er t e d
t hrough other init iat ory pleadings, such as counterclaims,
cross-claims and t hird-part y complaint s. Jurisdict ion is
o bt aine d over the o r ig ina l d e fe nd a n t by ser vice of
summons and over the other defending part ies by service
of the ple ad in g co nt aining t he claim. Also, as now
amended, t his Rule refers to the subject -matt er of each
part icular claim and not only to t hat of the suit, as it was
under the former Rule, which t hereby applied only to the
complaint.
a. Jurisdict ion over the subject-matter is det ermined
by the allegat ions in the complaint regardless of whet her
or not the plaint iff is ent it led to recover upon all or some
of the claims assert ed t herein. The defenses assert ed in
the answer or motion to dismiss are not to be considered
for t his purpose, ot herwise the quest ion would depend
ent ir e l y upon the defe nda nt (Magay vs. Estandian, L-
28975, Feb. 27, 1976).
275
b. Where a part y invokes the jur isdict ion of a court

to obt ain affirmat ive relief and fails, he cannot t hereaft er
repudiat e such jurisdict ion. While t he issue of jurisdict ion
may be r a ise d a t an y t ime , he i s e st o ppe d as i t i s
t ant a mo u n t to speculat ing on the fort unes of lit igat ion
(Crisostomo, et al vs. CA, et al., L-27166, Mar. 26, 1970).
c. Where the jur isdict ion of the court is challenged
and t he court defers resolut ion of the motion or denies the
same, cert iorari and/or prohibit ion will lie as it would be
futile for the court to go ahead if it has no jur isdict io n
over the case. The same rule applies where the ground is
improper venue, as the t rial court, i f t he pet it ion t ur n s
out to be well founded, is act ing in excess of its jur isdict io n
(San Beda College vs. CIR, 97 Phil. 787; University of
Sto. Tomas vs. Villanueva, etc., et al, 106 Phil 439; Time,
Inc. vs. Reyes, etc., et al, L-8882, May 31, 1971). This
ruling is still good but with the modification t hat, pur suant
to amended Sec. 3 of t his Rule, t he court can no longer
defer resolut ion of the motion.
d. I t has been held t hat even i f t he claim in the
complaint was below the jur isdict io nal limit for the t hen
Court s of F ir s t I nst a nc e , if t he defe ndant , inst ea d of
moving to dismiss, filed a count erclaim for P12,000 which
was t hen wit hin t he exclusive original jur isdict io n of said
Courts of First Instance, such counterclaim cured the defect
in t he complaint (Zulueta, et al. vs. Pan American World
Airways, Inc., L-28589, Resolution on Motion for
Reconsideration, Jan. 8, 1973). It is submit t ed, however,
t hat said resolut ion, under the facts t herein, was more
properly sust ainable under the principle of estoppel by
laches on the par t of the defendant , as discussed in the
preliminar y chapt er of t his book, and which pr inciple was
also relied on by t he S upr e me Co urt in its aforesaid
resolut ion in t hat case.
e. Where the owner of a condo miniu m corporat ion

sold a unit t hereof on inst allme nt s with reservation of
276
ownership unt il t he price is fully paid, and the buyer

default s, the courts, and not the Securit ies and Exchange
Commission, have jurisdict ion over the nature of the action
because the owner rema ins as a stockholder for the unit
sold, hence no int ra-corporat e issue is involved (Sunset
View Condominium Corp. vs. Campos, Jr., etc., et al.,
G.R. No. 52361, April 27, 1981). Also, an action to compel
a corporation to issue shar es of its capital stock in payment
of its cont ract ual obligat ion and undert aking in favor of
the plaint iff will not be dismissed on the ground t hat the
court has no jur isdict ion over the nat ure of the action since
such a situat ion does not involve an intra-corporate mat t er
c o nt e m p l a t e d in P.D . 902- A an d i s not w it hin t he
jur isdict ion of the Securit ies and Exchange Commission
(DMRC Enterprises vs. Este del Sol Mountain Reserve, Inc.,
G.R. No. 57936, Sept. 28, 1984). Likewise, an action to
compel the corporat ion to regist er the shares of stock
allegedly sold to plaint iffs does not involve an intra-corpo•
rate mat t er as plaint iffs are not yet stockholders but are
only seeking to be regist ered as such (Rivera, et al. vs.
Florendo, et al, G.R. No. 57586, Oct. 6, 1986). However,
an action to compel the defendant corporat ion to render
an account ing and dist ribut ion of the shar es of stock, with
the dividends due t hereon, of plaint iffs' predecessor-in-
int erest is an int ra-corporat e conflict and is not within
the jur isdict io n of the courts but of the Securit ies and
Exchange Commission (Malayan Integrated Industries
Corp. vs. Mendoza, etc., et al, G.R. No. 75238, Sept. 30,
1987).
See, in this connection, the Interim Rules of Procedure
for Int ra-Corporat e Cont roversies (AM. No. 01-2-04-SC),
i m p l e m e nt i n g the pr o c ed ur a l c ha nge s in R.A. 8799
(Appendix W).
9. Where a motion to dismiss for improper venue is
erroneously denied, the remedy is prohibit ion (Enriquez
vs. Macadaeg, 84 Phil. 674; Bautista vs. De Borja, et al, L-
20600, Oct. 28, 1966).
277
10. Where the plaint iffs filed the act ion in a court of
improper venue and t hereaft er submitted to its jurisdiction,
the issue of venue was t hereby waived and t hey are in
estoppel to repudiat e or quest ion the proceedings in said
court (Vda. de Suan, et al. vs. Cusi, et al., L-35336,
Oct. 27, 1983).
11. . Objection to venue is also impliedly waived
where the part y ent ers into trial, cross-examines the
wit nesses of the a d ve r s e par t y an d adduce s
evide nc e (Paper Industries Corp. of the Phil. vs. Samson,
et al., L-30175, Nov. 28, 1975).
12. Lack of legal capacity to sue means t hat the plain•

tiff is eit her not in the exercise of his civil r ight s or does
not have t he c har act er or r epr esent at io n t hat he claims
(Lunsod vs. Ortega, 46 Phil. 664).
a. . Wher e the p la int i ff i s no t the r ea l p ar t y in
int erest , the ground for the mot ion to dismiss is lack of
cause of act ion (Casimiro vs. Roque, et al., 98 Phil. 880).
b. A fo r eign c o r po r at io n do ing bu s i n e s s in the
Philippines w it ho ut the requisit e license to do so cannot
ma int a in any suit in t he P hilippines (Sec. 69, Act 1459,
now Sec. 133, Corporation Code; Marshall-Wells Co. vs.
Elser & Co., 48 Phil. 70; Atlantic Mutual Insurance Co.,
Inc. vs. Cebu Stevedoring Co., Inc., L-18961, Aug. 31,
1966), but not where the case involves a mere isolated
t ransact io n (Aetna Casualty & Surety Co., Inc. vs. Pacific
Star Line, L-26809, Dec. 29, 1977; Hathibhai Bulakhidas
vs. Navarro, et al, L-49695, April 7, 1986). But if the
said foreign corporat ion is sued in our court s, it may, by
wr i t of pro hibit io n, seek relie f ag a i ns t the wro ngfu l
assumpt io n of jur isdict io n and its pet it ion t herefor need
not aver its legal capacit y to inst it ut e said proceeding
(Time, Inc. vs. Reyes, etc., et al, supra).
c. The issue of plaint iffs lack of legal capacit y to sue
cannot be raised for the first time on appeal where the
278
d e fe nd a n t dea l t wit h the for mer as a par t y in the

proceedings below (University of Pangasinan Faculty
Union vs. University of Pangasinan, et al., G.R. No. 63122
Feb. 21, 1984).
13. The pendency of anot her action, or litis pen•

dentia, as a ground for a motion to dismiss, requires t hat
the par t ie s to t he act ion are the same; t hat t her e i s
subst ant ial ident it y in the causes of action and reliefs
s o u g ht ; an d t ha t the r e s u l t o f the fir st act io n i s
det er minat ive of the second in any event (Northcott &
Co. vs. Villa- Abrille, 41 Phil. 462) and regardless of which
part y is successful (Arceo vs. Oliveros, et al., L-38251,
Jan. 31, 1985). The motion to dismiss may be filed in
eit her suit, not necessar ily in t he one inst it ut ed first
(Teodoro vs. Mirasol, 99 Phil. 150; Magsaysay vs.
Magsaysay, et al., L-49847, July 17, 1980).
The Supr eme Court has repeatedly held, however,
t hat when the element s of litis pendentia exist, the action
filed lat er should be abat ed, based on the maxim t hat qui
prior est tempore, potior est jure (he who is before in time
is the bet t er in r ight ). This is especially t rue where in the
act ion first filed, the court ha s alr ea d y co mmenced
proceedings (Pacsports, Phils., Inc. vs. Niccolo Sports,
Inc., G.R. No. 141602, Nov. 22, 2001).
The pendency of an administ rat ive case between the
part ies does not generally const it ut e litis pendentia in
anot her civil or criminal case between t hem (Solandro
vs. Ramos, et al., L-20408, April 27, 1967). There can be
litis pendentia if the same cause of action is the subject of
a complaint in one case and of a counterclaim in anot her
as long as the ot her requisit es are pr esent (Arceo vs.
Oliveros, et al., supra). This ground is also referred to in
some decisions as lis pendens or outer action pendant
(see Buan, et al. vs. Lopez, G.R. No. 75349, Oct. 13, 1986).
14. Res judicata, as a ground for dismissal, requires

a previous final judg ment in a case prosecuted between
279
the same part ies involving the same subject - mat t er and
cause of action (Roman Catholic Archbishop vs. Director
of Lands, 35 Phil. 339). The trial court can t ake judicial
notice of the finalit y of a judgment previously decided by
it and the fact t hat the same case is now pending before
it, the defeated part y having refiled the same (Baguiao
vs. Jalagat, et al., L-28100, Nov. 29, 1971). The principle
of res judicata applies to all cases and pro ceed ings,
inc luding land r egist r at io n and cada st r a l proceedings
(Republic vs. Estenzo, L-35376, Sept. 11, 1980). See
Secs. 47 and 48, Rule 39 and the notes t her eu nder .
15. The defense of prescr ipt ion is waived and cannot

be considered on appeal if not raised in the t r ial court
(Ramos vs. Osorio, L-27306, April 29, 1971; Director
of Lands vs. Dano, et al., L-31749, Feb. 21, 1980).
Ho wever, i f the a lleg at io ns of the comp la int , or t he
evidence present ed, clearly indicate t hat the act ion has
pr e s cr ibe d , or wher e t her e i s no issue in fact as to
prescr ipt io n, the defense of prescr ipt io n is not deemed
waived by defendant ' s failure to allege the same (Chua
Lamko vs. Dioso, 97 Phil. 821; Garcia vs. Mathis, supra).
Generally, estoppel and prescr ipt io n cannot be invoked
a g a in s t the S t at e (Republic vs. CA, et al., L-45202,
Sept. 11, 1980). En contra, note t hat the rule in cr iminal
cases is different, as discussed in Sec. 9, Rule 117.
16. A motion to dismiss on the ground of prescript ion

will be given due course only if t he complaint shows on its
face t hat t he act ion ha s alr eady pr escr ibed (Sison vs.
McQuaid, 94 Phil. 201; Francisco, et al. vs. Robles, et al,
94 Phil. 1035; Aznar III, et al. vs. Bemad, etc., et al,
G.R. No. 81190, May 9, 1988). If it does not so appear,
the det erminat io n of the motion to dismiss must be deferred
unt il t rial (Cordova vs. Cordova, 102 Phil. 1182; Seno, et
al. vs. Mangubat, et al., L-44339, Dec. 2, 1987).
See, however, Sec. 3 of t his Rule which now prohibit s
defer ment of the resolut ion of the mot ion.
280
RUL E 16 M O T IO N T O D I S M I S S
17. Whe n the gr o un d for d is m is s a l i s t hat the

co mplaint st at e s no cause of act ion, such fact can be
det ermined only from t he facts alleged in the complaint
(Mindanao Realty Corp. vs. Kintanar, et al., L-17152,
Nov. 30, 1962) and from no other (Marabilles vs. Quito,
100 Phil. 64; Boncato vs. Siason, et al., L-29094, Sept. 5,
1985), and the court cannot consider other mat t ers aliunde
(Salvador vs. Frio, L-25352, May 29, 1970). This implies
t hat the issue must be passed upon on the basis of the
allegat ions assuming t hem to be t rue and the court cannot
inquire into the t rut h of the allegat ions and declare t hem
to be false; ot herwise, it would be a procedural error and
a denia l of due pro cess to the plaint iff (Ventura vs.
Bernabe, L-26769, April 30, 1971; Galeon vs. Galeon, et
al., L-30380, Feb. 28, 1973). The exception was provided
by the former Sec. 2, Rule 9, i.e., where the motion to
dismiss on t his ground could be filed during the trial, in
which case the evidence present ed was to be considered.
Also, i t has been held t hat under this ground the trial
court can co ns ider all t he plead ings filed, inc lud ing
annexes, motions and the evidence on record (Marcopper
Mining Corp. vs. Garcia, G.R. No. 55935, July 30, 1986),
inc luding do cu me nt ar y evidence st ipulat ed upon and
which is before the court (Santiago vs. Pioneer Savings
& Loan Bank, et al., G.R. No. 77502, Jan. 15, 1983).
However, it has likewise been held t hat even if the
complaint st ated a valid cause of action, a motion to dismiss
for insufficiency of cause of act ion will be gr ant ed if
document ar y evidence admit t ed by st ipulat ions discloses
facts sufficient to defeat the claim and enables the court
to go beyond the disclosures in the complaint. In such
instances, the court can dismiss a complaint on this ground
even w it ho u t a hear ing , by t ak in g into account the
discussio ns in said mot ion and the opposit ion t her et o
(Tan vs. Director of Forestry, et al., L-24548, Oct. 27, 1983).
This cont roversy which appeared to have been due to
confusion over the s it uat io ns wher ein the co mplaint
281
does not allege a sufficient cause of act ion and t hat

wherein, at the t rial, the evidence does not sust ain the
cause of action alleged, has been clarified by incorporat ing
said Sec. 2 in an amended form as the present Sec. 1 of
Rule 9 . Refer to sai d new pr o vis io n an d the no t e s
t her eunder .
a . Co u r t s sho u l d e xer c is e u t m o s t car e an d
c ir cu ms p e ct io n i n p a s s i n g upo n mo t io n s t o dis m is s
based on t his ground (Militante us. Antero, et al., L-27940,
June 10, 1971). The t es t is w he t he r , a s s u m i n g the
allegat io ns of fact in t he complaint , a valid judg me n t
could be r ender ed in accordance wit h the pra yer in t he
complaint . Where the allegat io ns are sufficient but the
veracit y of t he facts are assailed, t he motion to dismiss
should be denied (Suyom, et al. us. Collantes, et al., L-
40337, Feb. 27, 1976).
b. Where the facts alleged to make out the principal
cause of act ion and relief are insufficient, the case should
be dismissed and plaint iff cannot rely on ancillary mat t er s
in the co mplaint to make out a cause of action. T hus,
when the act ion is for cancellat ion of the defendant ' s t it le
but the allegat ions t herein are inadequat e, plaint iff cannot
lean on his allegat ions of supposed imp ro vement s made
on the land as t hese are purely ancillary to the pr incipa l
relief sought (Gabila us. Barriaga, L 28917, Sept. 30,
1971). Neit her can such defect be cured by the allegat ions
in a co mp la int in int er ve nt io n filed by a t hir d part y
(Nacar us. Nistal, et al., L-33006, Dec. 8, 1982).
c. Where a complaint does not cont ain all the facts
co nst it ut ing the pla int iffs cause of act ion, it is subject to
a motion to dismiss. However, if the defendant per mit s
evide nc e to be int r o d uc ed , w it ho u t object io n, which
su pp l ie s the ne c e s s a r y a l l e g a t io n i n suc h defect ive
complaint, this evidence cures t he defects of such complaint
which may no longer be dismissed on that account and
the court shall awar d such relief as is consist ent wit h the
282
RUL E 16 M OTION S T O DI SM IS S SE C . 1
case made out by the pleadings and the evidence (Pascua

us. CA, et al., G.R. No. 76851, Mar. 19, 1990).
18. Unlike a motion to dismiss on the ground t hat

the complaint st at es no cause of action, a motion invoking
the St at ut e of Fr auds may be filed even if the absence of
a cause of act ion does not appea r on t he face of the
co mp la int . Such absence may be proved dur in g t he
hear ing of the motion to dismiss on said ground (Yuvienco,
et al. us. Dacuycuy, etc., et al., G.R. No. 55048, May 27,
1981). For the St at ut e of Fr auds, see Arts. 1403(2), 1405
and 1406, Civil Code.
19. The former Rule did not provide specific grounds

for a motion to dismiss where the action, was filed wit hout
the plaint iff having exhaust ed all administ rat ive remedies
before going to court, a basic rule of polit ical law which is
accepted in adject ive law. Similar ly, it did not have any
such provision, because it was not t hen cont emplat ed, for
the s it u a t io n wher e pr io r r e fer r a l for co nc il iat io n
p r o c e e d i n g s wa s r e q u i r e d b y the K a t a r u n g a n g
P a mbar a nga y Law (P.D. 1508), and lat er by the Local
Government Code (R.A. 7160), before the case may be filed
in co urt and the plaint iff did not comply wit h such
prerequis it e. The remedy t hen was to authorize a motion
to dismiss such act ion for failure to state a cause of action
or even for pr e mat ur it y , desp it e the dubiet y of such
grounds.
On the other hand, t hen Sec. l(j) of said Rule provided
as a ground for a motion to dismiss the fact t hat the suit
was between member s of the same family and no earnest
efforts t owar ds a compromise have been made, which
provision was actually t aken from Art. 222 of the Civil
Code. T hes e t hr e e s i t u a t i o n s , an d ot he r s i m i la r
cont ingencies, are now embraced in and assailable under
the new ground for dismissal provided in the revised Rule,
t hat is, non-compliance with a condition precedent for the
filing of the claim.
283
Save for the change in t erminology, t herefore, the

former rulings by t he Supr eme Court on said sit uat io ns
are st ill applicable mutatis mutandis and are wort h
reproducing herein, but wit h the caveat on the grounds
t hen availed of, as provided in the former Rule.
a . Wher e the p la i nt i f f ha s no t e x h a u s t e d all
administ r at ive remedies, the complaint not having alleged
the fact of such exhaust ion, the same may be dismissed
for lack of cause of act ion (Pineda vs. CFI of Davao, et al., L-
12602, April 25, 1961; Sarabia vs. Sec. of Agriculture and
Natural Resources, L-16002, May 23, 1961; Gone, et al. vs.
District Engineer, et al, L-22782, Aug. 29, 1975; Abe-Abe, et al.
vs. Manta, et al, L-4827, May 31, 1978), alt hough it does not
affect the jur isd ict ion of the court over the subject -
mat t er (Mun. of La Trinidad, et al. vs. CFI of Baguio-
Benguet, et al, L-33889, June 28, 1983). If this objection
is not raised at the proper time, it is waived and t he court
can try the case (C.N. Hodges vs. Mun. Board, etc., et al,
L-18276, Jan. 12, 1967; Soto vs. Jareno, et al, L-38962, Sept.
15, 1986). For the inst ances where exhaust ion of
administ r at ive remedies is not required, see Note 7 under
Sec. 5, Rule 1.
b. I t was believed t hat the same doctrinal rules will
apply wher e the case was covered by t he Kat ar u nga n g
P a mbar a nga y Law (P.D. 1508) and not excepted from the
compulsory process of ar bit r at io n required t her ein as a
precondition for filing a complaint in court. Thus, where
the complaint does not st at e t hat it is one of the excepted
case s , or i t does not allege pr io r a v a i l m e n t of said
conciliat ion process, or it does not have a cert ificat ion t hat
no conciliat ion or set t le me nt had been r eached by the
par t ies, t he case should be dismissed on mot ion. This
applies to cases cognizable by both the inferior court s and
t he Regional Trial Court s (Morata vs. Go, et al, G.R.
No. 62339, Oct. 27, 1983).
S u bs equ e nt l y , in Royales, et al. vs. Intermediate
Appellate Court, et al. (G.R. No. 65072, Jan . 3, 1984),
284
where the defendant-appellant had part icipated in the trial

court w it ho u t an y invo cat io n of P.D. 1508 and the
j u d g m e n t t he r e i n ha d beco me e xec u t o r y , bu t said
defendant t hereaft er sought the annulment of the decision
for alleged lack of jur isdict ion, the same was denied under
the doctrine of estoppel by laches as held in Tijam vs.
Sibonghanoy (L-21450, April 15, 1968). Non-compliance
with P.D. 1508 only result s in lack of cause of action or
p r e m a t u r it y (see Vda. de Borromeo vs. Pogoy, G.R.
No. 63277, Nov. 29, 1983; Peregrina, et al. vs. Panis, et
al, G.R. No. 56011, Oct. 31, 1984). The sit uat io n is
analogous to non-exhaust io n of administ rat ive remedies
(Gone, et al. vs. District Engineer, et al, supra) or, as
formerly framed, the lack of ear nest efforts to compromise
suits bet ween family me mber s (then Sec. lfjj, Rule 16;
Peregrina, et al. vs. Panis, et al, supra; cf Agbayani vs.
Belen, et al, G.R. No. 65629, Nov. 24, 1986).
This objection, not being jur isdict ional in nat ure, is
deemed waived if not raised in a motion to dismiss (Ebol
vs. Amin, et al, G.R. No. 70237, Mar. 18, 1985; Gonzales
vs. CA, et al, G.R. Nos. 59495-97, June 26, 1987; cf.
Millare vs. Hernando, et al, G.R. No. 55480, June 30,
1987; Sanchez vs. Tupas, et al, G.R. No. 76690, Feb. 29,
1988).
The co mp l a i n t ma y b e d i s m i s s e d wher e the
complainant , after due notice, wilfully fails to appear on
the dat e set for mediat ion, conciliation or ar bit r at io n.
Upon a s im i lar failure of r espo ndent to appear, any
compulsory count erclaim he has made shall be dismissed
and may not be filed in court and complainant shall be
issued a certificat ion for filing his action in the proper
co urt , g o v e r n m e n t agency or office (Alinsugay vs.
Sagampang, et al, G.R. No. 69334, July 28, 1986).
c. The fact t hat t he suit is exclus ively bet ween
members of the same family is a ground for dismissal if no
ear nest efforts at compromise had been made (Art. 222,
Civil Code; Art. 151, Family Code). This ground is,
285
t her e fo r e, not ava ila ble wher e a co mpr o mise of the

controversy is not permit t ed by law, as where it involves
civil st at us, validit y of marr iage or legal separat ion,
grounds for legal separat io n, future support, jur isdict io n
and future legit ime (Art. 2035, Civil Code). The same
rule applies even if the co mplaint asks for support in
ar r ear s, which is per mit t ed to be compromised, but it also
seeks future support (Mendoza vs. CA, et al., L-23102,
April 24, 1967). As to who are considered me mber s of a
"family," Art . 217 , Civil Code, p r o vided t hat famil y
relat ions shall include those (1) bet ween husband and wife;
(2) bet ween par ent and child; (3) among ot her ascendant s
and t heir descendant s; and (4) among brot hers and sist ers
(Gayon vs. Gayon, L-28394, Nov. 26, 1970). Art. 150 of
t he Family Code ame nded the foregoing e nu me r at io n
regarding siblings, to specify "whet her of the full or half-
blood."
Failur e to allege in the complaint t hat ear nest efforts at
compromise had been made by t he plaint iff before filing t he
act ion is not a ground for a motion to dismiss if one of the
part ies is a st r anger (Magbaleta vs. Gonong, L-44903, April
25, 1977) or where the suit is bet ween collat eral relat ives
who are not brot her s or sist ers and, t herefore, not
me mber s of t he same family (Mendez vs. Bionson, L-32159
Oct. 28, 1977).
20. . The doctrine of forum non conveniens is not

a g r o u n d for a mo t io n t o d i s m i s s U N D E R t hi s
Ru le . Concept ually, t his means t hat a court, usually in
conflicts- of-law cases, may refuse imposit ions on its
jur isdict io n where it is not the most convenient or
available forum and t he part ies are not precluded from
seeking remedies elsewhere (Bank of America, etc. vs.
CA, et al., G.R. No. 120135, Mar. 31, 2003).
Mor eo ver, the pr o pr iet y of d is miss ing a case on t his
pr inciple r equ ir e s a fact ual det er minat io n, hence it is
more properly considered as a mat t e r of defense. The
t rial court, consequent ly, has the discret ion to abst ain
from assuming jur isdict io n over the
286
the case on t his ground (Raytheon International, Inc. vs.

Rouzie, Jr., G.R. No. 162894, Feb. 26, 2008).
Thus, for inst ance, where the defendant 's pet it ion for
review in the Court of Tax Appeals was dismissed nolle
prosequi and t he Government inst it ut ed the tax collection
suit in the Regional Trial Court as a consequence thereof,
but dur ing t he pendency of said tax collection suit, the
de fe nda nt ' s pet it io n for review in the Court of Tax
Appeals was reinst at ed, said defendant can t hen move for
dismissal of the tax collection suit in the Regional Trial
Court on the ground of litis pendentia even if he had
already filed his answer t herein.
21 . Sect ion 1 of t his a me nded Rule lays down a
branch of t he so-called "o mnibus mot ion rule" which
provides t hat defenses or objections not pleaded eit her in a
motion to dismiss or in the answer are deemed waived,
except the objections specified t herein which are considered
not waivable.
a. Lack of jurisdict ion over the subject mat ter may
be invoked as a defense at any stage of the action, even if
no such objection was raised in a motion to dismiss or in
the answer, and it may be so claimed even after the trial
had commenced (Ker & Co. vs. Court of Tax Appeals, et
al, L-12396, Jan. 31, 1962).
b. It will readily be observed t hat in said Section 1,

t hr e e ot he r except io ns have been e xpr ess l y added,
namely, t hat (1) t here is anot her action pending between
the same part ies for the same cause (litis pendentia), (2)
the proceeding is barred by a prior judgment (res judicata),
and (3) the case wa s ext ingu ised by the s t at ut e of
limit at ions (prescript ion). These addit ional except ions
were not explicitly provided for in the 1964 Rules of Court,
part icular ly Section 2 of Rule 9 thereof. Notably, it is
clearly st at ed t hat any of these addit ional except ions may
appear in "the pleadings or the evidence of record."
287
c. Where any of the four defenses are pr esent in

the case, Section 1 direct s t hat the court shall dismiss the
claim. If, despite such direct ive, t he court shall fail to do
so, the logical and speedy remedy of the defendant is to
move to dismiss the claim regardless of the st at us of the
init iat ory of responsive st at us of the pleadings vis-a-vis
each ot her. Manda mu s to compel such dismissal may
t hereaft er be availed of as the successive remedy should
the Co urt b e r e c a lc it r a n t desp it e the fact t hat such
dismissal is its mandat or y dut y. This is aside from such
ad m i n is t r at iv e s a nct io ns as may be w a r r a nt e d by its
nonfeasance in a minist er ial funct ion.
d. In Matela vs. Chua Tay (L-16796, May 30, 1962),

pet it ioner challenged the propriet y of a motion to dismiss
on the ground of litis pendentia which was present ed after
the mo vant ' s answer to the complaint had alread y been
filed, hence t he dismissal of t he case obt ained t her eby
should be set aside. The S upreme Court disregarded t hat
cont ent ion since both the answer (which was filed earlier)
and the mot ion to dismiss "cont ained the defense and/or
gr o un d of pe nd e nc y of a no t he r act io n, " an d all t he
r e q u i s i t e s of res judicata wer e p r e s e n t . Wit h the
aforement ioned a me nd me nt of Section 1 of this Rule which
now co ns ider s litis pendentia as an except io n to the
o mnibus mot ion rule, t his cont roversy need no longer
arise.
e. Quiaoit vs. Consolacion, et al. (L-41824, Sept.

30, 1976) explained the dict um t hat a motion to dismiss
may also be allowed for some special reasons on grounds
ot her t ha n lack of cause of action or lack of jur isdict io n
over the subject - mat t er, even after t rial of the case had
alr eady begun but evidence co nst it ut ing a ground for
dismissal of t he case is discovered dur ing t hat t rial. The
reaso n given is t hat said mot ion serves to suppleme nt the
aver me nt s of the defendant ' s answer and to adjust the
issues t o the p la i nt i f f s t est i mo n y . This r u lin g wa s
288
reit erat ed in Ruiz, Jr. vs. CA, et al. (G.R. No. 101566,
Mar. 26, 1993).
f. The a m e n d m e n t of S ect io n 1 of t hi s Rule

providing t hat the except ions to the omnibus motion rule
may be g leaned from t he evidence on record (which
includes the case where t rial has begun) forestalls any
challenge on t hat score. Also, the liberalizat ion of other
former holdings on belated motions to dismiss t hus affirm
t hat procedural rules, as essent ial tools for the obtent ion
of just ice, should not be lit erally constricted by petrified
logic in t heir applicat ion. In any event, where the motion
to dismiss falls out side the general rule on allowable
grounds and/or time limits, but invokes judicial discret ion
due to special reasons, as ear lier noted, the bett er practice
is to move for leave of court therefor so t hat the sit uat ion
may be present ed and the t ribunal put on guard.
22. . An action cannot be dismissed on the ground
t hat the complaint is vague or indefinite. The remedy
of the defendant is to move for a bill of part iculars or avail
of the proper mode of discover y (Galeon vs. Caleon,
et al., L-30380, Feb. 28, 1973).
23. . Court s do not ent ert ain moot quest ions or
issues, t hat is, t hos e whic h cease to pr e s e n t a
ju st ic ia b l e controversy such t hat a resolut ion thereof
would be of no pract ical use or value and no legal relief is
needed or called for.
However, courts will still decide cases, otherwise moot
and academic, If (1) t her e is a grave violat ion of the
Const it ut ion; (2) an except ional charact er of the situat ion
and the par a mo unt public int erest is involved; (3) the
c o ns t it ut io na l issue r a ise d r equir e s fo r mu lat io n of
controlling principles to guide the bench, the bar and the
public, and (4) the case is capable of repet ition yet evading
review (Lu vs. Lu Ym Sr., et al. G.R. No. 153690, Aug. 26,
2008, which other cases jointly decided).
289
Sec. 2. Hearing of motion. — At the h e a ri n g of

the mot i on, the p art i es shall su b mi t thei r a rg u m e n t s
o n the q u e s t i on s o f law and th ei r ev i d en c e o n the
q u e s t i on s of fact i n volved e xcep t t h os e not avai lab le
a t t h at t i m e . S h o u l d the cas e g o t o t ri a l , the
e v i d e n c e p r e s e n t e d d u r i n g the h e a r i n g s h a l l
au t o m at i ca l l y be part of the e v i d e n c e of the p art y
p re s e n t i n g the same , (n)
NO TES
1. This new provision of t he Rule int r o duces two

import ant changes, i.e., (1) at the hear ing of the motion,
the part ies shall submit all ar gu me nt s and evidence t he n
a v a i l a b l e , an d (2) t he e v id e nc e p r e s e n t e d sha l l
aut omat ically const it ut e par t of the evidence at the t ria l
of the part y who pr ese nt ed t he same. I t will also be
recalled t hat in accordance wit h Rule 15, such motion shall
be in wr it ing (Sec. 2) and t hat t here must be a hear ing
t her eo n (Sec. 4).
The o bvio us pur po s e of t hes e a m e n d m e n t s i s to
avoid unnecessar y delay in the t r ial court, and to have a
sufficient frame of refer ence should the t r ial co urt ' s
disposit ion of the mot ion be quest ioned in a higher court.
2. . Under the former Rule, i t was held t hat

the absence of a formal hear ing on a motion to dismiss
which was gr ant ed does not const it ute reversible error
where the mot ion is gro unded on lack of cause of
act ion and the existence or lack of it is det er mina ble by
reference to the facts alleged in the challenged pleading.
The issue raised in the mot ion having been fully
discussed t herein and in the opposit ion t hereto, oral
ar gument s on the motion would be an unnecessar y
ceremony. The int end me nt of the law in r equir ing a
hear ing on the mot ion, t hat is, to avoid unfair surpr ises and
to enable the adverse part y to meet the ar g u me nt s in the
motion, have been sufficient ly met under the foregoing
cir cumst ances (Castillo, et al. vs. CA,
290
RUL E 16 M O TIO N T O DI SM I S S SEC . 3
et al., G.R. No. 52008, Mar. 25, 1988). It is believed t hat

such ruling may still be favorably considered under the
new Rules UNDE R t he same c ir cu mst ance s o bt aining
t herein.
Sec. 3. Resolution of motion. — Aft er t he he a r i n g ,

t he Co ur t ma y d i s m i s s t he act io n o r claim, de n y t he
mo t io n o r o r d e r t he a m e n d m e n t o f t he p le a d i ng .
The C o ur t shal l no t defe r t he r e s o lu t i o n o f t he
mo t io n for t he r e a s o n t hat t he g r o u n d r elie d upo n i
s no t i n d u b i t a b l e .
I n ever y cas e , t he r e s o lu t io n sha l l st at e c le ar l y
an d d i s t i n c t l y t he r e a s o n s t he r e fo r . (3a)
NOT E S
1. Amendat or y of the previous provision on these

aspects in Rule 16, t here are now only t hree courses of
action open to the trial court when a motion to dismiss is
present ed, i.e, to grant, to deny, or to allow amendment of
the pleading.
The former practice allowed a fourth option, which
was for the court to defer resolut ion of the motion if the
ground therefor did not appear to be indubit able. Not
only was t hat alt er nat ive product ive of delay or abuse,
but it was often unnecessar y and tended to afford a pat h
of least resist ance. Furt her more, in view of the provisions
of the next preceding section requiring present at ion of all
available argument s and evidence, there would be no need
for the t rial court to defer action unt il the t rial. The
evidence present ed, and such addit ional evidence as it may
require, would enable it to rule upon the dubitabilit y of
the ground alleged.
T hese co ns id er at io n s resolve and set aside t he
doubtful rule in Antam Consolidated, Inc., et al. vs. CA,
et al. (G.R. No. 61528, July 31, 1986) wherein the court
291
was allowed to defer resolut ion of a motion to dismiss since

the judge did not have the necessar y facts to rule upon
the capacit y to sue of a foreign corporat io n; and t hey
reinforce t he ho lding in Foster Parents Plan Interna•
tional/Bicol, et al. us. Demetriou, et al. (G.R. No. 74077,
July 7, 1986) t hat it was gross error to defer resolut ion of
the mot ion where the grounds were lack of jur isdict io n or
lack of cause of action since the allegat ions of the complaint
are deemed admit t ed and the issue can be resolved wit hout
wait ing for trial on the mer it s.
2. . Wher e a he ar in g wa s held an d
d o c u m e nt a r y evidence wa s pr e s e nt e d by t he
defendant , not on his motion to dismiss but against
the pla int iffs applicat ion for a writ of pr eliminar y
injunct ion, but said evidence wa s ad m it t e d by the
plaint iff, such evide nce can be considered in resolving
the mot ion to dismiss (Santiago us. Pioneer Savings &
Loan Bank, et al., G.R. No. 77502, Jan. 15, 1988).
3. . Adopt ing previous doctrinal injunct io ns, such

as t hat in Continental Bank vs. Tiangco (G.R. No.
50480, Dec. 14, 1979), it is now specifically required by this
section t hat the r e so lut io n o n the mot io n shal l
c lear l y an d dist inct ly st at e the reasons therefor. This
proscribes the common pract ice of perfunctorily
dismissing the mot ion "for lack of mer it ." Such cavalier
disposit ions can often pose difficulty and
m isu nder st and ing on the par t of the aggrieved part y in
t aking recourse therefrom and likewise on t he hig he r
court called upon to resolve the sa me , usually on
cert iorar i.
4. . An o r de r d e n y i n g a mo t io n to d i s m i s s
i s int er lo cut o r y an d not appea l a bl e (Harrison
Foundry & Machinery, et al. vs. Harrison Foundry
Workers Association, et al., L-18432, June 19, 1963), but
an order gr a nt in g a mot ion to dis m is s is final an d
appea la ble (Monares vs. CNS Enterprises, 105 Phil.
1333 fUnrep.J). However, if the order of dismissal is not
292
an adjudicat ion
293
on the mer it s, as where the venue is improperly laid, t hat

the plaint iff has no legal capacit y to sue, litis pendentia,
t hat the complaint st at es no cause of action or t hat a
condit io n pr ec ed e n t for filing t he suit ha s not been
complied with, such dismissal is not a bar to anot her action
when the cir cumst ances change and war r ant the refiling
and prosecut ion of the same.
5. While an order denying a motion to dismiss is

int erlocutory, and non-appealable, if the denial was with
grave abuse of discret ion or is wit hout or in excess of
jurisdict ion, prohibit ion will lie (see Moreno vs. Macadaeg, L-
17908, April 23, 1968; Espiritu, et al. vs. Solidum, et
al., L-27672, July 25, 1973). Cert iorari and prohibit ion are
proper remedies from such order of denial (Alban vs.
Madarang, et al, L-32963, Sept. 30, 1971; Van Dorn vs.
Romillo, et al, G.R. No. 68470, Oct. 8, 1985; Newsweek,
Inc. vs. IAC, et al, G.R. No. 63559, May 30, 1986; PNB
vs. Florendo, et al, G.R. No. 62082, Feb. 26, 1992).
6. Where the defect is curable by a me nd me nt as
where the complaint st at es no cause of action, and the
co urt unco nd it io na l l y r efuses to allow a me nd m e nt ,
the same is reversible error (Macapinlac vs. Repide, 43
Phil. 770). However, the plaint iff must move for leave to
amend t he complaint before the dismissal order becomes
final (Constantino vs. Reyes, L-16853, June 29, 1963).
Also, where the dismissal was merely for failure to allege
ear nest efforts to compromise a suit between members of
the same family (Verzosa vs. Verzosa, L-25609, Nov. 27,
1968), now subsumed under the ground of non-compliance
with a condit ion precedent, such refusal is improper as
the defect is curable by amendment . This presupposes,
of course, t hat t here were really such earnest efforts as
alleged.
7. A case should not necessarily be dismissed, on

motion of the defendant, because the original summons
was wrongfully served or t here was failure of service.
294
The court can instead issue an alias summons for service

on the defendant (Far Corp. vs. Francisco, etc., et al.,
G.R. No. 57218, Dec. 12, 1986).
Sec. 4. Time to plead. — If the mot i o n is d en i e d ,

the movan t shall file hi s an s we r wi t h i n the b alan c e
of the p e ri o d p re s c ri b e d by Rul e 11 to wh i c h he
wa s en t i t le d a t the tim e o f se rv i n g hi s mot i on , but
not less tha n five (5) day s in an y even t , c o m p u t e d
fro m hi s re c e i p t o f the n o t i c e o f the d e n i a l . I f
the p lead i n g i s ord ere d to be a m e n d ed , he shall file
hi s an s we r wi t h i n the p eri od p re s c ri b e d by Rule 11
c o u n t e d fro m s e r v i c e o f the a m e n d e d p l e a d i n g ,
u n les s the Cou rt p rovi d e s a lon ge r p eri od . (4a)
NO TES
1. In t he 1964 Rules of Court, Sec. 4 of t his Rule

provided t hat where the mot ion to dismiss is denied or
r eso lut io n t her eo f i s deferred, t he defenda nt had t he
ent ire r egle ment ar y period all over again wit hin which to
file his answer, reckoned from his receipt of the court's
order, unless ot herwise provided by said court. Prior
t her et o, the rule was t hat the filing of a mot ion to dismiss
only suspended the r unning of the r egleme nt ar y period
and, upon its denial, the defendant had only the balance
of the r egle me nt ar y period wit hin which to file his answer.
This a mended sect ion enunc iat es a change in policy and
revives in par t the old pract ice of gr ant ing the defendant
only the balance of the r egle ment ar y period to which he
was ent it led at the t ime he filed his motion to dismiss,
count ed from his receipt of the denial order. The same
rule of gr ant ing only t he balance of the period is followed
where the court, inst ead of denying the motion to dismiss,
orders the a me nd me n t of the pleading challenged by his
motion, in which case the balance of the period to answer
runs from his receipt of the ame nded pleading.
293
However, in order t hat the defendant may at least

not be unduly denied the opport unit y to file his responsive
pleading, in the first inst ance he shall be allowed not less
t han 5 days to do so where the balance of the reglement ar y
period is less t ha n t hat . In the second instance, the court
may provide a longer period under the same cont ingency.
2. When the period for filing the answer has been

suspended, as by defendant 's filing of a motion for a bill
of part icu lar s, a motion to dismiss may t hereaft er be filed
wit hin t he r emaining period to file the answer since t he
time to file the latt er is coterminous with t hat for the former
(Dumanan, et al. vs. Butuan City Rural Bank, et al., L-
27675, Dec. 15, 1982).
Sec. 5. Effect of dismissal. — Su bj ect to the right

of ap p eal, an ord er gran t i n g a mot i o n to d i smi s s
b ase d on p a ra g r a p h s (f)» (h) and (i) of se ct i o n 1
h ereof shall bar the refi li ng of the same act ion or
claim, (n)
NOTES
1. The action cannot be refiled if it was dismissed

on any of these grounds: (a) res judicata, (b) prescript ion,
(c) e x t i n g u i s h m e n t of the cla im or d e m a nd , an d
(d) unenforceabilit y under the St at ut e of Frauds.
2. On the mat t er of prescript ion, if what is referred
to is t hat the cause of action is barred by the st at ut e
of lim it at io ns, t hat is, t hat the act ion has prescribed
(Arts. 1139 to 1155, Civil Code), the motion to dismiss
shall be grounded on par. (f) of Sec. 1. If what is involved
is the fact t hat the ownership or other real rights claimed
have prescribed, or a case of ext inct ive prescript ion is
involved (Arts. 1117 to 1138, Civil Code), then the ground
for the motion to dismiss should properly be based on
par. (h) of Sec. 1 since the plaint iffs claim or demand has
been ext inguished.
296
Sec. 6. Pleading grounds as affirmative defenses. —

I f no mot i o n to d i s mi s s ha s bee n filed, an y of the
g ro u n d s for d i s m i s sa l p rovi d e d for in thi s Rule ma y
be p lead e d as an affi rmati ve d efen s e in the an sw e r
and, in the d i sc ret i o n of the cou rt, a p re li m i n a r y
h ea ri n g ma y be had t h ereo n as i f a moti o n to d i s mi s s
had bee n filed. (5a)
The d i s m i s s a l o f the c o m p l a i n t UN D E R t h i s
s e c t i o n s h a l l b e w i t h o u t p r e j u d i c e t o the
p r o s e c u t i o n in the sam e or s e p a r a t e a c t i o n of a
c o u n t e rc l a i m p lea d e d in the an sw e r , (n)
NO TES
1. . UNDE R t he pr act ice before 1964, wher e

t he defendant filed a mot ion to dismiss and the same
was uncondit ionally denied, t he grounds raised by him in
said motion could no longer be pleaded as affirmat ive
defenses as the resolut ion t hereof had already been
concluded by t he denial of his mot ion. If he did not
file a mot ion to dismiss, t hen he could raise any of the
grounds t herefor as a f f ir m a t i v e d e f e ns e s i n hi s
a n s w e r an d hav e a preliminar y hear ing t hereo n as if a
mot ion to dismiss had been filed.
Despit e the change of phraseo logy UNDE R the 1964
Rules, i t appear s t hat the same procedure applied, and
where the defendant did not move to dismiss he could
allege any of the grounds therefor, except improper venue,
as affirmat ive defenses in his answer. On the ot her hand,
where a mot ion to dismiss on the grounds of res judicata
and litis pendentia were unco nd it io na l l y denied, said
grounds could no longer be raised as affirmat ive defenses
in t he answer, as well as the ot her grounds to dismiss
available at the t ime the mot ion was filed, except those of
failure to st at e a cause of act ion and lack of jur isdict io n
which were not deemed waived (Heirs of Juliana Clavano
vs. Genato, et al. L-45837, Oct. 28, 1977).
295
However, even if the defendant had moved to dismiss

but the ground relied upon by him was not definitely
resolved by the court, i.e., where resolut ion t hereon was
deferred as t he n allowed, such ground could st ill be
averred as an affirmat ive defense in the answer.
2. Under the present amended section, if no motion

to dismiss had been filed, any of the grounds for dismissal,
including improper venue, may be pleaded as affirmative
defenses and preliminar ily heard in the discret ion of he
court. The provisions of Sec. 4, Rule 4 under the 1964
Rules of Court, which r equir ed t hat impr oper venue
should be raised in a motion to dismiss otherwise it is
deemed waived, has been e l i minat ed in t he pr e se n t
revision.
Also, the ruling in the aforecited Clavano case should
be deemed modified by eliminat ing therefrom the reference
to the ground of failure to st ate a cause of action, since
t hat except ion was based on the former provisions of
Sec. 2 of Rule 9 which, as ear lier explained, has been
deleted and rephrased in Sec. 1 of the same Rule.
3. The second par agr ap h of t his section has now
clarified the effect of the dismissal of the complaint upon
a count erclaim duly pleaded in the action.
4. A motion to dismiss is not a responsive pleading,
hence the filing thereof does not preclude the plaintiff from
doing what he can lawfully do before the defendant
files his answer, i.e., amend his complaint (Rodriguez vs.
Fernan, L-15143, Nov. 29, 1961; Soledad vs. Mamangun, L-
17988, May 30, 1963) and admission of such amended
complaint may be compelled by mandamus (Republic vs.
Ilao, L-16667, Jan. 30, 1962).
5. An order grant ing a motion to dismiss, rendered
after the deat h of the plaintiff which was duly reported to
the court in a motion to subst it ute the deceased by his
heirs but before subst it ut ion was ordered, is invalid. The
298
right to the propert y involved was vested in the heirs upon

the deat h of t heir predecessor wit hout the necessit y for a
declarat io n of heirs, hence such order gr ant ing the mot ion
to dismiss denies t hem the right to be subst it ut ed as part ies
in t he case wit hout their day in court (Bonilla vs. Barcena,
et al., L-41715, June 18, 1976).
6. Under t his amended sect ion, any of the grounds

for dismissal provided for in this Rule, may be alleged as
affir mat ive defenses and a preliminar y hear ing may be
had t her eo n if no motion to dismiss on any of said grounds
had been filed and resolved. Sec. 5(b) of Rule 6 enumer at es
some affir mat ive defenses such as fraud, illegalit y and
estoppel, and jur ispr udence has also provided ultra vires
acts and unco nst it ut io nalit y of t he st at ut e involved as
addit ional affir mat ive defenses. Since t hese defenses and
ot hers by way of confession and avoidance are not among
the grounds for a motion to dismiss under Rule 16, while
the same may be alleged as affir mat ive defenses to be
proved as such dur ing the t rial, it would not be proper to
hav e a p r e l i m i n a r y h e a r i n g t h e r e o n U N D E R the
cir cumst ances and for the purpose co nt emp lat ed in this
section.
The fu r t he r a m e n d m e n t e m p h a s i z e s t ha t t he
preliminar y hear ing aut horized t her ein is not mandat ory,
since the grant t hereof may be had in the discretion of
the court (246 Corporation, etc. vs. Daway, etc., et al.,
G.R. No. 157216, Nov. 20, 2003).
297
RULE 17
DISM IS SAL OF ACTIO NS
S ect i o n 1. Dismissal upon notice by plaintiff. — A

c o m p l a i n t ma y be d i s m i s s e d by the p l ai n t i f f by
fi li n g a n o t i c e of d i s m i s s a l at an y ti m e b efor e
servi ce of the an swe r or of a mot i on for su mma r y
j u d g m en t . Upon suc h n ot i ce bein g filed, the court
sh al l i s s u e a n ord e r c o n f i r m i n g the d i s m i s s a l .
Un less ot h e rwi s e st at ed in the not i ce, the d i smi ssa l
is wi t h ou t p reju di ce, excep t that a notice op erat e s
as an adj u d i cati on upo n the meri t s whe n filed by a
p lai n t i ff wh o ha s onc e d i smi s s e d in a c o m p et e n t
Cou rt a n act i o n b ase d o n o r i n c l u d i n g the sam e
claim, (la )
NOTES
1. The procedure under the former Sec. 1 of this

Rule has been maint ained, but with the clarification t hat
when the notice of dismissal is filed by the plaintiff, the
court shall issue the corresponding order confirming the
dismissal. This set t les t he former m i su nd er st a nd ing
regarding the date when such dismissal became execu•
tory since t here was t hen no such provision for a court
order which, being final in nat ur e, would requir e the
corresponding ent r y.
2. Under this section, dismissal is effected not by
motion but by mere notice of dismissal which is a mat t er
of right before the defendant has answered or moved
for a su mmar y judg me nt . Such dismis sal is wit hout
prejudice, except: (a) where the notice of dismissal so
provides, (b) where the plaintiff has previously dismissed
the same case in a court of competent jurisdict ion, and
(c) even where t he notice of dismissal does not provide
t hat it is with prejudice but it is premised on the fact of
299
298
pa yme n t by t he defendant of t he claim involved (see

Serrano vs. Cabrera, 93 Phil. 774).
The t wo-dismissal rule requires, however, t hat both
dismissals are grant ed by a court of compet ent jurisdic•
tion.
3. . To be more precise, however, wha t causes
the loss by a plaint iff of the r ight to effect dismissal of
the act ion by mere notice is not the filing of the
defendant ' s answer wit h the court but the service on t he
plaint iff of said answer or of a mot ion for summar y
judg ment . Where the plaint iff filed the notice of
dismissal of his act ion in the court after the filing of
defendant ' s answer but before service thereof, the
plaint iff's notice to t hat effect ipso facto bro ught about
the dismissal of the pending act ion wit hout need of any
order from the t rial court (Go vs. Cruz, et al., G.R. No.
58986, April 17, 1989).
4. This sect ion is also applicable to special proceed•

ings (Ventura vs. Ventura, 106 Phil. 1165 [Unrep.]). The
for mer port ion t hereof regar ding dismissal or compromise
of a class suit has been t ransferred to Sec. 2 of t his Rule
since the same are effected by mot ion, and not by mere
notice, to the court.
5. Wher e the first co mpla int for foreclo sure of a

chat t el mort gage for non-payment of certain inst allment s
due t h e r e U N D E R was dis missed wit h pr ejudice, a t the
i nst a nc e of the plaint iff UNDE R t hi s s ect io n, a no t he r
complaint lat er filed by him for non-payment of install•
me nt s s u bs e q u e n t to t hose invo lved in the first case
should not be dis missed on the ground of res judicata
since said second case involved different causes of action
(Filinvest Credit Corp. vs. Salas, et al, G.R. No. 63326,
July 31, 1984).
S ec . 2. Dismissal upon motion of plaintiff. —

E x c e p t a s p r o v i d e d i n t he p r e c e d i n g s e c t i o n , a
300
RULE 17 D I SM I SSA L O F AC T I O N S SEC . 2
co mp l ai n t shall not be d i sm i s s e d at the p l a i n t i f f s

i n st an c e save upo n ap p roval of the cou rt and upon
su c h t e rm s an d c o n d i t i o n s a s the Cou rt d e e m s
p rop er. If a c o u n t e rc l a i m ha s been p lead e d by a
d e f e n d a n t p ri o r t o the se rv i c e u po n hi m o f the
p l a i n t i f f s mot i o n for d i smi s sa l, the d i smi s sa l shall
be li mi ted to the comp lai n t . The d i smi ssa l shall be
wi t h ou t p rej u d i ce to the right of the d e fe n d a n t to
p ro s e c u t e hi s c o u n t e r c l a i m in a sep a ra t e act i o n
u n les s wi t h i n fifteen (16) days from n ot ice of the
mo t i o n h e m a n i f e s t s hi s p re f e re n c e t o hav e hi s
cou n t e rc l ai m reso lv e d in the same acti on. Un less
o t h e rw i s e sp eci fi ed in the ord er, a d ismi s sa l u nd er
this p a rag ra p h shall be wit h ou t p reju di ce. A class
suit shall not be d i sm i s s e d or comp ro mi sed wi t h ou t
the ap p rova l of the court. (2a)
NOTES
1. Prior to this amendatory Sec. 2, the rule was t hat

the plaint iff could not move for the dismissal of his com•
plaint if, before the service of his motion therefor upon
the defendant , the lat t er had filed a counterclaim which
could not remain pending for independent adjudicat ion
by the trial court, hence the defendant could object to the
dismissal of the action. Applying t hat provision, it was
held t hat after the defendant had answered, dismissal can
be effected only by order of the court on proper notice and
hear ing. Such dis missa l cannot be ordered over the
defendant 's objection if the counterclaim of the defendant
cannot remain pending for independent adjudication, t hat
is, a compulsory co unt er claim (see Ynotorio vs. Lira, L-
16677, Nov. 27, 1964; Lim Tanhu, et al. vs. Ramolete, et
al, L-40098, Aug. 29, 1975). The dismissal under this rule
was also wit hout prejudice, except (a) when other• wise
st ated in the motion to dismiss, or (b) when st at ed to be
with prejudice in the order of the court (see Vergara, et
al. vs. Ocumen, et al., G.R. No. 53971, June 19, 1982).
301
A furt her qualifying doctrine was to the effect t hat

the rule t hat a complaint may not be dismissed if t he
count erclaim cannot be independent ly adjudicat ed does
not apply to, and will not inure to the benefit of, a plaint iff
who deliber at ely pr event s or delays t he prosecut ion of his
own complaint. Especially is this t rue where the complaint
wa s d is m is s e d as a co nseque nce of p la int i ff' s be ing non-
suit ed at the pr e-t r ial as he has t her eby virt ually
abando ned his claims in his complaint (Sta. Maria vs.
CA, et al, L-30602, June 30, 1972).
Alt hough the aforesaid doct rines must now yield to
the a me nd me nt s in Sec. 2 , as her eunde r explained, the
r at io na le in the Sta. Maria case t hat a plaint iff who delays
or pr event s the prosecut ion of his own complaint s ho u l d
no t be ne f i t t h e r e f r o m , a s b y r a i s i n g an y object ion to
the appr o pr iat e disposit io n of de fe nda nt ' s count erclaim,
is still a sound rule.
2. Under t his revised sect ion, where the plaintiff

mo ves for the d is m is s a l of his co mp la i n t to which a
co unt er cla im has been int erposed, the dis missal shall be
limit ed to the complaint . Such dis missal shall be wit hout
prejudice to the r ight of the defendant to eit her prosecut e
his co unt er claim in a sep ar at e action or to have the same
resolved in the same act ion. Should he opt for the first
a lt er nat ive, the court should render t he corr espo nding
order gr ant ing and reser ving his right to prosecut e his
claim in a separ at e complaint . Should he choose to have
his count er cla im disposed of in the same act ion wherein
the co mp la int had been dis missed, he mus t ma nifest
such preference to t he t rial court wit hin 15 days from
not ice to him of p la i nt i f f s mot io n to dismiss. These
alt er nat ive remedies of the defendant are available to him
regardless of w het her his count erclaim is compulsory or
per miss ive. A similar a lt er nat ive pro cedur e, wit h the
same under lying reason therefor, is adopted in Sec. 6, Rule
16 an d Sec. 3 of t hi s Rule, wher e i n the co mp la int is
302
RUL E 17 DISM I SSA L O F ACTION S SEC . 3
dismissed on motion of the defendant or, in the lat t er

instance, also by the court motu proprio.
3. Secs. 1 and 2 of this Rule refer to the dismissal of
the entire case at the instance of the plaintiff, provided
that, under Sec. 1, t here has been no service of an answer
of a motion for summar y judgment ; and, under Sec. 2, the
defendant has not filed a count erclaim and the court
deems t he dismissal proper. Absent such cont ingent
considerat ions, the plaint iff has the virt ual freedom to
desist from furt her prosecut ing any defendant by causing
the dismissal of the complaint.
This i s to be d is t i ng u i s he d from the s it u at io n
cont emplat ed in Sec. 11, Rule 3 which allows part ies to be
dropped or added by order of the court, on motion or motu
proprio at any stage of the action and on such t erms as
are just. This refers to the maintenance of the case against
all part ies, except t hat one or more defendant s may be
excluded. It does not, however, comprehend whimsical
or ir rat io nal dropping of part ies but cont emplat es the
sit uat ion where t here has been an erroneous inclusion
or misjoinder of part ies. It presupposes that the original
inclusion of a defendant was made in the honest conviction
t hat i t wa s pro pe r bu t the s u bs e q u e n t dro ppin g i s
request ed because it has t urned out to be incorrect. It
does not mean t hat a plaint iff is free to join or implead
anybo d y as a d e f e nd a n t in a c o mp l a i n t only to
unceremoniously drop him later at the plaint iffs pleasure;
hence, the r equir eme nt t hat the dropping be "on such
t erms as are just" - just to all the other part ies (Lim
Tanhu, et al. vs. Ramolete, et al, supra).
Sec . 3. Dismissal due to fault of plaintiff. — If,

for no ju st i fiab le cau se, the plaintiff fails to appear
on the date of the p resen t at i on of his evi d en ce in
chief on the comp lai n t , or to p rosecu t e his action
for an u n re as on ab l e len gth of time, or to comp ly
wit h t h es e Ru le s o r an y ord er o f the cou rt, the
303
RUL E 17 REMEDIA L LA W C O M P E N D I U M SEC. 3
c o m p l a i n t ma y b e d i s m i s s e d u p o n m o t i o n o f the
d e f e n d a n t o r upo n the court' s ow n mot i on , wi t h ou t
p rej u d i c e to the ri ght of the d e f e n d a n t to p ro s e c u t e
hi s c o u n t e r c l a i m i n the sam e o r i n a s e p a r a t e
act i on . This d i s mi s sa l shall hav e the effect of an
a d j u d i c a t i o n u p o n the m e ri t s , u n l e s s o t h e r w i s e
d ecla re d by the court. (3a)
NO TES
1. Two impo rt ant changes have been int roduced by

t his sect ion. The dismissal of the case for failure of the
plaint iff to appear at the t rial, to be valid, now requires
t hat (1) his no n- appear ance is wit hout just ifiable cause,
and (2) such prejudicious absence is limited to the dat e
or dat es when the pr esent at io n of his evidence in chief on
the complaint was scheduled or expected. The provision
in the former sect ion referr ing to pla i n t if f s failure to
appear "at the t ime of the t rial" could result in unfair if
not absurd result s, consider ing the lengt h of the period
of the t r ial and the different st ages t hereof wher ein the
presence of the defendant and the ot her part ies are not
even r e qu ir e d . Since the p la i nt i f f s pr ese nc e i s now
requir ed only dur ing t he pr esent at io n of his evidence in
chief, his absence during the pr esent at io n of the evidence
of t he defe nd a nt or t he ot he r part ie s , or even at t he
r ebut t al or subsequent st ages of the trial, is not a ground
for dismissal.
2 . The seco n d s u b s t a n t i a l a m e n d m e n t t o t hi s
section is wit h respect to the disposit ion of the defendant ' s
co unt er cla im in the event t he p la i nt i f f s co mpla int i s
dismissed. As alread y observed, he is here gr ant ed the
choice to prosecut e t hat count erclaim in eit her the same
or a separ at e action, just like the grant of t hat remedy in
Sec. 6 of Rule 16. It may be noted t hat in the pr esent
i nst a nce , as well as UNDE R t he a fo r e st at e d Sec. 6 of
Rule 16, the defendant is not required to manifest his
304
RUL E 17 DISM I SSA L O F AC T I O N S SEC . 3
preference wit hin a 15-day period, as in Sec. 2 of this Rule

The reason is t hat the motions to dismiss cont emplat ed
in Sec. 6, Rule 16 and in t his sect ion are filed by the
defendant who perforce has already deliberat ed upon the
course of action he int ends to take on his counterclaim
and which he may even manifest right in his motion to
dismiss the complaint. The dismissal in Sec. 2 of this Rule
is at the instance of the plaintiff, hence the defendant is
grant ed the time and also the duty to t hus manifest his
preference within 15 days from notice, after an opportunit y
to study the sit uat ion.
3. With the aforestat ed amendment s in Secs. 2 and

3 la yin g down specific r u le s on the d is po s it io n of
co unt er cla i ms involved in the dis missed act ions, the
co nt ro ver sia l doctrine in BA Finance Corporation vs.
Co, et al. (G.R. No. 105751, Jun e 30, 1993) has been
abandoned, toget her with the apparent confusion on the
proper applicat ion of said Secs. 2 and 3. Said sections
were dist inguished and discussed in the aut hor' s separate
opinion in t hat case, even before they were clarified by
the present amendment s, as follows:
"Turning back to Rule 17, it is readily apparent
t hat Sect ions 2 and 3 t hereo f envisage different
factual and adject ive sit uat io ns. The dismissal of
the complaint under Section 2 is at the instance of
plaintiff, for what ever reason he is minded to move
for such dismissal, and, as a matter of procedure, is
wit hout prejudice unless otherwise stated in the order
of the court or, for t hat matt er, in plaint iffs motion
to dismiss his own complaint. By reason thereof, to
curb any dubious or frivolous strategy of plaintiff for
his be ne fit or to o bviat e po ssible pre jud ice to
defendant, the former may not dismiss his complaint
over the defendant ' s object ion if the la tt er has a
compulsory count er cla im since said count ercla im
would necessar ily be divested of juridical basis and
defendant would be deprived of possible recovery
305
RUL E 1 7 R E M E D I A L LA W C O M P E N D I U M SE C . 3
t hereon in t hat same judicial proceeding.

"Section 3, on the ot her hand, co nt emplat es a
dismissal not procured by plaintiff, albeit just ified by
causes imput able to him and which, in the pr esent
case, was pet it ioner's failure to appear at the pre-t rial.
This sit uat ion is also covered by Section 3, as extended
by jud ic ia l i nt e r p r e t a t io n , an d i s o r der e d upo n
mot ion of defendant or motu proprio by the court.
Here, the issue of whet her defendant has a pending
co unt er cla i m, per miss ive or compulsory, is not of
det er minat ive significance. The dismissal of plaint iffs
complaint is evident ly a confir mat ion of t he failure of
evidence to prove his cause of act ion out lined t herein,
hence the d is missa l is considered, as a matter of
evidence, an adjudicat ion on the mer it s. This does
not, however, mean t hat t here is likewise such ab•
sence of evidence to prove defendant ' s count er cla im
alt hough the same ar ises out of the subje ct - mat t er of
the complaint which was merely t er minat ed for lack
of proof. To hold o t he r w is e would not only work
i n j u s t ic e to d e f e nd a n t bu t woul d be r e a d i n g a
fu r t he r pr o vis io n int o S ect io n 3 an d w r e st i n g a
mea ning t herefrom alt ho ugh neit her exist s even by
mere implicat io n. Thus under st ood, t he complaint
can accordingly be dismissed, but relief can never•
t heless be gr ant ed as a mat t e r of course to defendant
on his count erclaim as alleged and proved, wit h or
wit hout any reser vat ion t herefor on his part , unless
from his conduct, express or implied, he has virt ually
consent ed to the co nco mit ant dismissal of his coun•
terclaim."
4 . I t ha s bee n held t hat the c ir c u m s t a nc e s set

out in t his sect ion are the only inst ances wherein t he court
may dismiss a case on its own mot ion (Malig vs. Bush, L-
22761, May 31, 1969). Nevert heless, it should also be recalled
t hat if t he court finds t hat i t has no jur is dict ion
306
RUL E 17 D I SM I SSA L O F ACTION S SE C . 3
over the subject -mat t er of the suit, t hat there is anot her
action pending bet ween the same part ies for the same
cause, or t hat the action is barred by a prior judgment or
by st at ut e of limit at ions, the court shall dismiss the case
sua sponte (Sec. 1, Rule 9).
5. Unless ot herwise provided in the order of the

court, a dismissal under this section is wit h prejudice.
Thus, when the dismissal does not contain any condit ion
at all, it has the effect of an adjudicat ion on the mer it s as
it is understood to be with prejudice (Guanzon vs. Mapa, L-
19249, Feb. 28, 1963; cf. Insular Veneer, Inc. vs. Plan, L-40155,
Sept. 10, 1976).
6. Failure to comply wit h a court order is ground for

d is m i s s a l of the cas e (Aranico-Robino vs. Aquino, L-
46641, Oct. 28, 1977), such as where the plaint iff failed
to amend his pleading as ordered by the court (Dizon vs.
Garcia, 110 Phil. 186), unless the order is null and void as
where, upon t he deat h of the defendant , the court
ordered the plaint iff to amend his complaint contrary to
Sec. 17 (now, Sec. 16), Rule 3 which directs t hat in t hat
case the heirs of the defendant be merely subst it ut ed in
lieu of the deceased (Gojo vs. Golaya, L-26768, Oct. 30,
1970). Also, the dismissal of the case for failure of
plaint iffs counsel to manifest whet her he was availing of
or dispensing with modes of discovery, as required by a
clerk in the office of the judge, is null and void as no such
notice is aut horized by the Rules (Koh vs. IAC, et al., G.R.
No. 71388, Sept. 23, 1986).
7. Unjust ifiable inaction on the part of plaintiff to
have the case set for t rial is ground for dismissal for
fa ilur e to p r o s e c ut e (Ventura vs. Bayan, L-12960,
Jan. 31, 1962; Insurance Company of North America vs.
Republic, L-26794, Nov. 15, 1967). The "unreasonable
length of time" in failure to prosecute is addressed to the
sound discret ion of the trial court (Olilang vs. Nocon, et
al., L-31072, July 22, 1971). These rules apply to
307
p r e - t r ia l s an d ap pe a l s t o the for mer Co urt of F ir s t

Inst ance (Racimo vs. Diho, L-27804, Feb. 27, 1976) and
the case may be dis mis s ed for appe l la nt ' s failure to
prosecute his appeal for an unr easo nable lengt h of t ime
(Republic vs. Guarin, et al, L-26367, Jan. 31, 1978). In
a case appealed to the t hen Court of Fir st Inst ance, t he
appellant (whet her plaint iff or defendant) st ands in t he
same posit ion as t he plaint iff in a case originally filed in
said court, hence t he provisions of Sec. 3, Rule 17 also
apply to said appellant (Capitol Rural Bank of Quezon
City, Inc. vs. Meridian Assurance Corp., G.R. No. 54416,
Oct. 17, 1980).
8. . It is p la int iffs failure to appear at the t rial,

and no t t he a b s e n c e o f hi s l a w ye r , whic h
w a r r a n t s dis m is sa l (Dayo, et al. vs. Dayo, et al, 95
Phil. 703; Marahay vs. Melicor, etc., et al, L-44980, Feb.
6, 1990).
9. A mot ion for the reco nsiderat io n of an order
dismissing the case for failure to prosecut e need not be
acco mp a nied by affidavit s of mer it s (Gapoy vs. Adil,
et al, L-46182, Feb. 28, 1978).
10. D i s m i s s a l U N D E R Secs. 1 , 2 an d 3 of t hi s
Rule, unless ot herwise ordered, is an adjudicat ion on the
mer it s except, of course, dismissal for lack of jur isdict io n
which is always w it hout prejudice (Rivera vs. Luciano, L-
20944, Aug. 14, 1965, and cases t her ein cited).
11. . The principle t hat the dismissal of the

complaint carr ies wit h it the dismissal of the count erclaim
applies to inst ances where the court has no jur isdict ion
over the main case (Metals Engineering Resources Corp.
vs. CA, et al,
G.R. No. 95631, Oct. 28, 1991). Ot her wise, a count er•
claim may not be dismissed if defendant objects, unless it
can be independent ly considered by the court. Where no
objection was made, the dismissal of the count erclaim was
valid. At any rat e, if t he dismissal of such count er cla im is
308
wit hout prejudice, it may be refiled as a separ at e action
307
RUL E 17 DISM I SSA L O F AC T I O N S SEC . 4
under Sec. 2, Rule 17 (Fletcher Challenge Petroleum Phil.,

Ltd., et al. vs. CA, et al., G.R. No. 123292, April 20, 1998).
12. Where counsel for the plaint iff had adduced
evide nc e for his c l ie nt , his fa i lur e to appe a r at a
subsequent hear ing cannot be considered as failure to
prosecute but only a waiver of the right to cross-examine
the w it nes se s for t he defendant and to object to the
ad mis s ib i lit y of evidence for t he lat t e r (Jalover vs.
Ytoriaga, L-35989, Oct. 28, 1977).
13. The provisio ns of Sec. 3 of t his Rule do not

apply to criminal cases (People vs. Bellosillo, L-18512,
Dec. 27, 1963).
14. For a crit ique of the controversial ant ecedent s of
Secs. 2 and 3 of the Rule before their a mendment in 1997
and the current percept ions consequent to such amend•
ment s, see Tinga vs. Heirs of German Santiago, etc. (G.R.
No. 170354, June 30, 2006).
Sec. 4. Dismissal of counterclaim, cross-claim,

or third-party complaint. — The p r o v i s i o n s of t hi s
Rul e s ha l l a pp l y t o t he d is m i s s a l o f an y c o u nt e r •
c la i m , c r o s s - c l a i m , o r t h i r d - p a r t y c o m p l a i n t . A
vo l u nt a r y d is m i s s a l b y t he c l a i m a n t b y no t ic e a s i n
s e c t i o n 1 o f t h i s R u l e , s ha l l b e m a d e be fo r e a
r e s p o n s i v e p l e a d i n g o r a m o t i o n for s u m m a r y
j u d g m e n t i s ser ve d or, i f t he r e i s no ne , befo r e the
i n t r o d u c t i o n o f e v i d e nc e a t the t r ia l o r he a r i ng . (4a)
310
RULE 18
PRE-TRIAL
S e c t i o n 1. When conducted. — Aft e r the las t

p le ad i n g ha s bee n se rve d and filed, i t sh all be the
dut y of the p lai n t i ff to p romp t l y mov e ex parte that
the cas e be set for pre-tri al. (5a, R20)
NO TES
1. . To o bviat e t he conflict ing views and

decis io ns under the former Rule, Sec. 1 now imposes upon
the plain• tiff t he dut y to prompt ly move ex parte t hat the
case be set for pre-t ria l, and t his he must do upon the
service and filing of the last pleading required in the case
by t he Rules or, in appro pr iat e cir cumst ances, by the court
itself. This clarifies an d chang es t he pro cedur e
pr escr ibed in the former Sec. 5 of Rule 20 which
imposed t hat dut y on the clerk of court "upon the
submissio n" of the last pleading. The t r ansfer of
responsibilit y to the plaint iff himself, as has been
followed in ot her provisions of the revised Rules, is based
on the policy t hat whosoever is the proponent of the
par t icu lar st age of the proceeding should himself ini•
t iat e t he co rr espo nding st eps to have judicial act ion t aken
t her eo n since he is pr esumed to be the one int er est ed in
the speedy disposit ion thereof.
2. . Pre-t ria l under the former Rules was required

only in Co urt s of F ir s t I nst a nc e (now, the Reg io na l
Tr ia l Courts) and not in inferior courts, but the lat t er
could con• duct pre-t rial if t hey so desired. However,
Par. 9 of the I nt er im Rules requir ed the inferior court s
to observe t he same pro cedur e as t hat followed in the
Regio nal Trial Court s and Rule 5 now provides for t hat
uniform proce• dure, albeit wit h qualificat ions.
309
RUL E 18 PRE- TRI A L SEC . 2
3. The pre-trial and t rial on the mer it s of the case

must be held on separat e dates (Heirs of Jose Fuentes,
et al. vs. Macandog, etc., et al, L-45445, June 16, 1978).
4. A pre-t r ial cannot validly be held unt il the last
pleading has been filed, which last pleading may be the
plaint iffs reply (Pioneer Insurance & Surety Corp., et al.
vs. Hontanosas, et al, L-35951, Aug. 31, 1977), except
where the period to file the last pleading has lapsed. The
pre-t rial may be properly scheduled even if the plaintiff
had not yet filed his answer to the defendant 's compul•
sory count erclaim since no answer is required to be filed
t heret o (Sarmiento vs. Juan, G.R. No. 56605, Jan. 28,
1983; see Koh vs. LAC, G.R. No. 71388, Sept. 23, 1986).
Sec. 2. Nature and purpose. — The pre- t ri a l is

man d at ory. The cou rt shall con si d er:
(a) The p ossi b i li t y of an ami cab le set t l e m en t or
of a su b m i s si o n to alt ernati ve mod es of d i sp ut e reso•
lu t ion ;
(b) The si mp li cat i on of the i ssu es;
(c) The n ece s si t y or d esi rabi li ty of a m e n d m e n t s
to the p lead i n gs;
(d) The p ossi b i li t y of ob t ain i n g sti pu lat ion s or
ad mi s si on s of facts and of d ocu m en t s to avoid un•
n ec e s sa r y proof;
(e) The li mi t at i on of the nu mb er of wi tn esse s;
( 0 The ad vi sab i lit y of a p reli mi nary referen ce
of i ssu e s to a commi ssi on e r;
(g) The p rop ri et y of ren d eri n g j u d gmen t on the
p lead i n gs, or su mmar y ju dgment, or of d i smi ssi n g
the act ion sh ou ld a valid ground therefor be found
to exist;
(h) The ad vi sabi li ty or n ecessi t y of su sp e n d i n g
the p ro ceed i n gs; and
312
(i) Suc h oth e r mat t e r s as ma y aid in the p romp t

d i s p o si t i o n of the act i on, (la , R20 )
NOTES
1. The purposes of a pre-trial under the old Rule have

been reproduced wit h two subst ant ia l ame nd me nt s, viz.:
(a) the court shall consider submission to alt er nat ive modes
of disput e resolut ion including conciliation and mediat ion,
and not only ar bit r at io n; and (b) it shall also consider t he
advisa bilit y of ju d g m e n t on t he plead ings, s u m m a r y
judg ment or dismissal of t he action on the bases of the
proceedings at the pre-t r ial conference.
2. . Wit h r egar d to subm is s io n to ar b it r a t io n ,

see
R.A. 876 and Ar t s. 2028 to 2041 of the Civil Code on
co mpro mises and ar b it r at io ns . For r ecent legis lat io n
pro vid ing for a br o ader scope of a lt er n at iv e modes of
disput e resolut ion, see R.A. 9285 which inst it ut ionalized
the use of an a lt er nat ive disput e resolut ion syst em and
est ablished the Office for Alt er nat ive Disput e Resolut ion
(Appendix DD).
3. The findings of fact of a t rial court consequent to

a pr e-t r ial conference are findings which are based on
evidence and can accordingly suppo rt a decision or an
order (Libudan vs. Gil, L-21163, May 17, 1972).
Sec . 3. Notice of pre-trial. — The n o t i c e of p re -

t ri al shal l b e serve d o n cou n s e l , o r o n the p art y wh o
ha s n o cou n s e l . The c o u n s e l serv e d wi t h suc h n ot i c e i s
c h a rg e d wi t h the d ut y o f n ot i f yi n g the p art y
r e p r e s e n t e d by him. (n)
NOT E
1 . Under the former procedure, the S upr eme Court

held t hat a notice of pre-tr ial must be served on the part y
affected separat ely from his counsel (Heirs of Jose Fuentes,
311
et al. vs. Macandog, etc., et al. supra), and the same may
be served direct ly to him or t hrough his counsel (Lim,
et al. vs. Animas, etc., et al., L-39094, April 18, 1975),
otherwise the proceedings will be null and void (Sagarino
vs. Pelayo, L-27927, June 20, 1977; Patalinjug vs. Peralta,
et al., L-43324, May 5, 1979). It was the duty of counsel
upon whom such notice is served to see to it t hat his client
receives such notice and att ends the pre-trial, otherwise
he will be liable for grave ad minist r at ive disciplinar y
action (Taroma, et al. vs. Sayo, et al., L-37296, Oct. 30,
1975).
The procedur e has been simplified in this revised
section in the sense t hat the notice of pre-trial shall be
served on counsel, and service shall be made on the part y
only if he has no counsel. However, the duty of counsel
served with such notice to duly notify his client thereof
remains subst ant ia lly the same.
Sec. 4. Appearance of parties. — It shall be the

duty of the p art i es and thei r coun se l to ap pear at
the p re-t ri al. The n on - ap p ea ra n c e of a party may
be e xc u se d on ly i f a valid cau s e is show n th erefor
or if a re p re se n t at i v e shall appear in his behalf fully
a u t h o ri z e d i n w ri t i n g t o en t e r into a n ami cab l e
s e t t l e m en t , t o submi t t o a lt e rn a t i v e mode s o f
d i sp u t e re so l u t i on , and to ent e r into st ip u lat i on s
or a d m i s s i o n s of facts and of d ocu men t s, (n)
NOTES
1. The specificit y int roduced by t his new sect ion

underscores the necessit y for the personal appearance of
the p ar t ie s at the pr e-t r ia l conference in view of the
purposes thereof. This provision is based on the doctrines
of the Supreme Court which held t hat the purpose of the
revised Rules is to compel the part ies to appear personally
before the court to reach, if possible, a compromise. Where
314
the counsel for the plaintiff assert ed t hat he had been given
aut hor it y by his client to compromise but the court was
not sat isfied t hat said aut ho r it y exist ed, t he court i s
aut hor ized to dismiss the case for no n- appear ance of the
plaint iff (Home Insurance Co. vs. U.S. Lines Co., et al., L-
25593, Nov. 15, 1967). A specia l a u t ho r it y for an a t t o r ne
y t o co mpr o m is e i s r e q u ir e d UNDE R Sec. 23 , Rule 138.
Under Art . 1878(c) of the Civil Code, a special power of
att orney is required (see Servicewide Specialists, Inc. vs.
Sheriff of Manila, et al., G.R. No. 74586, Oct. 17, 1986).
However, it has also been held t hat the aut hor it y need not
be in wr it ing and may be est ablished by co mpet ent
evidence or subsequent ly ratified by the par t y
c o nc e r ne d (Lim Pin vs. Tan, et al., L-47740, July 20,
1982). If the par t y is a co r po r at io n , suc h aut ho r it y must
be made wit h an appropr iat e resolut ion of its board of
directors (Republic vs. Plan, et al., G.R. No. 56962, Aug.
21, 1982).
2. . I t must furt her be noted t hat the special

aut hor it y should confer on the part y' s r e pr ese nt at ive not
only the power to ent e r into a compromise, as i t was
under the for mer provisio n, but also to submit to
alt er nat ive modes of disput e set t lement , and to ent e r
into st ipulat io ns or a d m i s s io n s of fact s an d
d o c u m e nt s . Also, the mer e pr esent at io n of such
wr it t en aut hor it y is not sufficient, but mus t be
co mp le me nt ed by a showing of valid cause for the no n-
appear ance of the part y himself.
3. . Where nobody appear ed at the pre-t rial except

the counsel for the plaint iff but said counsel had no
special aut hor it y to r epr esent the plaintiff t herein, the
plaint iff may properly be declared no n-suit ed. The
plaint iff may be so declared non-suit ed and the case
dismissed wit hout motion by the defendant (Sec. 3, Rule
17).
Sec . 5. Effect of failure to appear. — The fa i l u r e of

313
t he p la i nt i f f t o a p p e a r w he n s o r e q u i r e d p u r s u a n t
316
RUL E 18 PRE-TRIA L SEC . 5
to the nex t p re c e d i n g sect i on shall be cau se for dis•

mi ssal of the acti on. The d i smi ssal shall be with
p rej udi ce, u n les s ot h e rwi s e ord ered by the court.
A si mi lar failu re on the part of the defen d an t shall
b e c a u s e t o a l l o w the p l a i n t i f f t o p r e s e n t hi s
evi d en c e ex parte and the court to rend er j u d gmen t
on the basis thereof. (2a, R20)
NOTES
1. This is a subst ant ial reproduct ion of Sec. 2 of the

former Rule 20 wit h the change t hat , inst ead of the
defendant being declared "as in default" by reason of his
no n- ap pe ar a nce, t his sect ion now spells out t hat the
procedure will be to allow the ex parte pr esent at io n of
plaint iffs evidence and the rendit ion of judgment on the
basis thereof. While actually the procedure remains the
same, t he pur po se is one of se ma nt ica l pro pr iet y or
terminological accuracy as there were criticisms on the use
of the word "default" in the former provision since t hat
t erm is ident ified wit h the failure to file a r equir ed
answer, not non-appearance in court.
2. The t rial court has discretion to declare a part y no n -
s u it e d (American Insurance Co. vs. Republic, L
25478, Oct. 23, 1967) and, unless otherwise provided, such
dismissal has the effect of an adjudication on the mer it s
(Geralde, et al. vs. Sabido, et al., L-35450, Aug. 19,
1982). Such exercise of discret ion will not be interfered wit h
by the appellate courts, absent a showing of grave abuse
thereof. Where, as in one case, both counsel and plaintiff
did not appear at the pre-trial, an order of non-suit was
proper (Arcuino, et al. vs. Aparis, et al., L-23424, Jan. 31,
1968).
3. Where the defendant is declared in default for his
failure to appear at the pre-trial, his remedy is to file a
motion for reconsiderat ion wit hout need for affidavits of
merits regarding the fraud, accident, mistake or excusable
315
negligence (Lucero vs. Dacayo, L-23718, May 13, 1968),

obviously because t he defenses of the defendant are set
out in his answer. If denied with grave abuse of discretion,
c e r t io r a r i i s t he r e med y as such o rde r of defau lt i s
int er locut ory. The remedy of the plaint iff who is non•
suit ed, on the ot her hand, is to appeal from the order of
dismissal, the same being a final order. If has also been
held t hat sai d mo t io n of the p la int i f f nee d not be
a c c o mp a n i e d by a ff ida vit s of me r it s s ince the suf•
ficiency of the cause of act ion can be det er mined from
the allegat io ns in the complaint (Gapoy vs. Adil, et al., L-
46182, Feb. 28, 1978).
4. . Where the defendant was pr esent at the pre-

trial, the court has no aut ho r it y to t her ea ft er call a
second pre-t rial and declare defendant in default for his
absence t her e i n (Pioneer Insurance & Surety Corp., et
al. vs. Hontanosas, et al., supra; cf. Jaranilla, et al.
vs. Adil, et al., L-44884, Feb. 28, 1979). For t hat mat t er,
where a pre-t rial has alr eady been held, the fact t hat an
ame nded complaint was lat er filed, wit h leave of court,
does not necessit at e anot her pre-trial (Insurance Company
of North America vs. Republic, et al., L-26794, Nov. 15,
1967).
5. . The dis missa l of t he case by the court due

to no n- ap pe ar a nce of t he plaint iff and his counsel at
the pre-trial, but wit hout proper notice of said pre-t rial
served on them, is violat ive of due process and the dismissal
should be set aside (Loquias vs. Rodriguez, et al., L-
38388, July 31, 1975). Where pet it io ner ' s counsel was not
served wit h a separ at e notice of pr e-t r ial, alt ho ugh his
client acknowledged receipt of a copy t hereof in its behalf
and of said counsel, said service is insufficient and t he
order of default and the ex parte proceedings before the
commis• sioner are null and void (People's Realty Brokerage
Corp. vs. Lustre, et al., L-41495, Oct. 20, 1978). This
doctrine would st ill hold t ru e as i t does not conflict
wit h t he amended Sec. 3 of t his Rule.
318
RULE 18 PRE- TRI A L SECS. 6, 7
Sec. 6. Pre-trial brief. — The parties shall file with

the cou rt and serve on the ad verse party, in such
man n e r as shall i n su re th ei r recei pt th ereo f at least
t h ree (3) days before the date of the pre-trial, their
r e s p e c t i v e p re- t ri a l b ri ef s wh i c h sh al l c o n t a i n ,
amon g ot h ers:
(a) A s t a t e m e n t of th ei r w i l l i n g n e s s to ent e r
into ami cab l e s e t t l e m e n t or a lt e rn at i ve mod e s of
d i s p u t e re s o l u t i o n , i n d i c a t i n g the d esi re d t e rm s
thereof;
(b) A su m m a r y of ad mi t t ed facts and p ro p osed
st i p u lat i on of facts;
(c) The i ssu e s to be tried or resolved ;
(d) The d o c u m e n t s or exh i b i t s to be p rese n t ed ,
st at i n g the p u rp os e thereof;
(e) A m an i f e st at i o n of thei r h avi n g availed or
t hei r i n t e n t i o n t o avai l t h e m s e l v e s o f d i s c o v e r y
p ro ce d u re s or referral to com mi s si on e rs; and
(f) The n u mb e r and n ame s of the w i t n es s e s ,
and the s u b st a n c e of their re sp ect i ve t est i mon i es.
Fai lu re to file the pre-trial brief shall have the
same effect as fai lu re to ap pear at the pre-trial, (n)
NOTE
1. This section makes it the mandatory duty of the

part ies to seasonably file t heir pre-trial briefs under the
conditions and wit h the sanct ions provided t herein. The
case of Dimayacyac, et al. vs. CA, et al. (G.R. No. 50907,
Sept. 27, 1979) which excused the non-filing of the pre•
trial brief on the ground t hat the former Rule did not then
require the same is accordingly abrogated.
Sec. 7. Record of pre-trial. — The p roce ed i n gs in

the pre-trial shall be record ed . Upon the t ermi na -
317
tion thereof, the Cou rt shall i ssu e a n ord e r wh i c h

shall reci t e i n d et ai l the mat t e r s t a ke n u p i n the
c o n f e re n c e , the act i o n t ake n t h ereo n , the amen d •
men t s al l o we d t o the p lea d i n g s , an d the a g r e e m e n t s
or a d m i s s i o n s mad e by the p art i e s as to an y of the
ma t t e r s con si d e re d . Sh ou l d the act io n p rocee d t o
trial, the ord er shall exp li ci t l y d efi n e an d li mit the
i ssu e s to be t ri ed. The con t en t s of the ord e r shall
con t ro l the s u b s e q u e n t cou rs e o f the act i on , u n les s
mod i fi e d before t rial to p rev en t man i fes t i nj u st i ce.
(5a, R20)
NOTES
1. . Thi s pr o vis io n on the p r o c e du r e in p r e -

t r ia l proceedings in civil cases is different from t hat
obt aining in cr iminal cases wherein, as provided in Sec.
2 of Rule 118, an agr eeme nt or admissio n of a part y in the
pre-t ria l conference shall be admissible against him only
if reduced to wr it ing and signed by him and his counsel.
However, the bind ing effect of the pre-t r ial order issued
under t his sect ion is subst ant ia l l y the same as a pre-
t rial order in cr imina l cases, as provided in Sec. 4 of said
Rule.
2. The a me nd me n t of a pre-tr ial order is addressed to

the sound d iscr et io n of the court (Gotico vs. Leyte Chinese
Chamber of Commerce, L-39379, April 30, 1985).
3. Where t he a mo unt of back r e nt a ls to be paid by

the defendant is st at ed in the pre-t r ial order in the nat ure
of a compromise agr ee me nt t hereon, said pre-t rial order
in t hat sense has the force of res judicata on t hat issue (M
& M Management Aids, Inc. vs. CA, et al., G.R. No.
53942, June 29, 1984).
4. A pr e-t r ial order is not mean t to be a detailed

catalogue of each and every issue t hat is to be or may be
320
t ake n up dur ing the t rial. Issues t hat are impliedly

included t her ein by necessar y implicat ion are as much
int egral part s of the pre-t r ial order as those t hat are
expressly st ipulat ed (Velasco, et al. vs. Apostol, et al., L-
44588, May 9, 1989).
5. . In A.M. No. 03-1-09-SC, t he S upr e me
Court issued a Rule on Guidelines to be Observed by Trial
Court Judges and Clerks of Court in the Conduct of Pre-
trial and Use of Deposit io n-Disco ver y Measur e s,
effect ive August 16, 2004.
319
RULE 19
INTERVENTIO N
S ect i o n 1. Who may intervene. — A p erso n wh o

ha s a legal in t eres t in the matt er in li ti gati on, or in
the su cces s of ei t h e r of the p art i es, or an i n t eres t
aga i n s t both, or i s so sit u at e d as to be ad vers e l y
affect ed by a d i st ri b u t i o n or ot h e r d i s p o s i t i o n of
p rop e rt y in the cu st od y of the cou rt or of an officer
t h e re o f may , wit h leav e o f cou rt , b e a l l o w e d t o
i n t e rv en e in the act i on. The cou rt shall con si d e r
wh et h e r or not the i n t e rv en t i o n will u n d u l y delay
o r p r e j u d i c e the a d j u d i c a t i o n o f the ri g h t s o f
the ori gi n al p art i es, and w h et h e r or not the inter•
ven er' s ri ght s ma y be fully p rot e ct e d in a sep arat e
p ro ce ed i n g . (2[2], [b]a, R12)
NOTES
1. This right to int ervene is not an absolute right.

The procedure to secure the r ight to int ervene is fixed by
the st at ut e or rule, and int er vent io n can be secured only
in accordance wit h the t er ms of the applicable provision.
U N D E R ou r rul e o n i n t e r v e n t i o n , the a l lo w a nc e o r
disallowance of a motion to int ervene is addressed to the
sound discret ion of the court (Big Country Ranch Corp.
vs. CA, et al., G.R. No. 102927, Oct. 12, 1993).
2. I nt er vent io n is not int ended to change the nat ur e

and char act er of the action itself (Garcia, etc., et al. vs.
David, et al., 67 Phil. 279). In general, an independent
controversy cannot be injected into a suit by int er vent io n
(67A C.J.S. 805), hence such int er vent io n will not be
allowed where it would enlarge the issues in the act ion
and expa n d the scope of the r e med ie s (Big Country
Ranch Corp. vs. CA, et al., supra).
320
RUL E 19 INTER VENTIO N SEC . 1
3. Int ervent ion is dist inguished from int erpleader

(Rule 62) as follows:
a. Int ervent ion is an ancillary action, while inter•
pleader is an original action;
b. I n t e r v e n t i o n i s pr o p e r in an y of the four
s it uat io ns ment io ned in t his Rule, while int er pleader
pr esuppo ses t hat the plaint iff has no int er est in the
subject - mat t er of the action or has an int erest t herein
which, in whole or in part, is not disputed by the other
part ies to the action; and
c. In a complaint in int ervent ion, the defendant s
are already original part ies to the pending suit, while in
int erpleader the defendant s are being sued precisely to
implead t hem.
4. . An i n t e r e s t i n g qu est io n i s the effect

upo n a co mp la i nt - i n- i nt e r ve nt io n by the dis missa l
of the pr incipal act ion wherein such int ervent ion was
sought. The confusion her e in seems to have ar isen
from the decisions of the S upr eme Court in Barangay
Matictic, etc. vs. Elbinias, etc., et al. (L-48769, Feb. 27,
1987) and Metropolitan Bank and Trust Co. vs.
Presiding Judge, etc., et al. (G.R. No. 89909, Sept. 21 ,
1990). While in Matictic it was held t hat the dismissal
of the main case barred further action on the
int ervent ion, in Metropoli• tan t he co mp la int - in -
i nt er ve nt io n sur vived and was allowed to proceed
despit e the dismissal of the main action. The two cases
actually rest on different facts and the see ming ly opposing
decisio ns t her e i n are easily reconcilable.
In Matictic, the main action, an expropriation case,
was filed by t he Munic ipa lit y of Nor zagaray against
private respo ndent s who were charging and collecting toll
fees on feeder roads in Barangay Mat ictic. Later, the
munic ipal mayor evinced his desire to wit hdr aw the
expropriat ion case, whereupon pet it ioner barangay filed
a motion for int ervent ion, contending t hat the result of
321
the expropriat ion case would affect its social and economic
development . Without taking action on the motion for
intervention, r e s p o nd e n t t r ia l Co urt dis m i s s e d the
expropr iat io n case, wit hout prejudice, on the singular
reaso n t hat the same was filed wit ho ut the requis it e
prior President ial approval. On cert iorari, the Supreme
Court ruled t hat the barangay, which is a part of but a
different po lit ical e nt it y, cannot quest io n t he or der
dismissing the expropriat ion case. Since said order had
achieved finality, the d is m i s s a l of the mot io n for
int er vent io n was unavo idable as the main action, having
ceased to exist, t here was no pending proceeding wherein
the int er vent ion may be based. Besides, its int erest s may
be protected in a separate case which it may prevail upon
the municipalit y to refile or, if the int ervenor has the
requisite aut horit y, it can file the action for expropriat io n
itself.
In Metropolitan, pet it ioner brought a replevin suit
for r eco ver y of a ir co nd it io n in g unit s , inst a l le d in a
building acquir ed by pr ivat e r espo ndent s, which were
obt ained from Raycor Air Control S yst em, Inc. on an
ar r ange me nt financed by loans obtained from pet it ioner.
Said aircondit ioning corporat ion was allowed by the trial
court to intervene and, after its complaint-in-intervention
was admitted and the answer s t heret o were filed, the case
was set for trial. Prior t her et o, pet it ioner bank and the
building owners ent er ed into a compromise agr eement
and, on t heir joint motion, the complaint was dismissed
wit h prejudice. However, on motion of int er venor, said
order was reconsidered and set aside. Thereaft er, the trial
court allowed t he filing of an a me nd e d co mpla int - in-
int er vent io n and pet it ioner went to the Court of Appeals
on cert iorari to challenge t he corresponding orders of the
lower court which, ho wever, wer e s u s t a i ne d by the
Court of Appeals.
The Supreme Court, on appeal, rejected pet it io ner ' s

co mp la in t aga i ns t allo wing the i nt e r ve nt io n sui t t o
322
RUL E 19 INTER VENTIO N SEC . 1
proceed despite the dismissal of the main action. In t rut h,

there was no final dismissal of the main case and its
r e i n s t a t e m e n t was pro per . The jo int mot ion of t he
plaint iff and defendant s t herein to dismiss the case only
affected t heir respect ive claims inter se but cannot affect
the r ight s of the int er venor. When an int ervenor has
become a party to a suit, the trial court cannot dismiss the
int er vent io n suit on the basis of an agreement between
the original part ies to the action unless the int ervenor is
a part y in such agreement .
Having been per mit t ed to become a part y to the
action, the int ervenor is ent it led to have the issues raised
between him and the original part ies tried and determined.
The plaint iff has no absolute right to put the int ervenor
out of court by the dismissal of the action, nor do the
original part ies to the suit have the power to waive or
otherwise annul the subst ant ial r ight s of said int ervenor.
When an int ervening pet it ion has been filed, a plaintiff
may not dismiss the act ion in any respect to the prejudice
of the int er venor.
Since the complaint -in- int ervent ion was filed before
plaintiff's action had been expressly dismissed, the
int er vener ' s complaint was not subject to dismissal on the
ground t hat no action was pending, because dismissal of
plaint iffs action did not affect the right s of the int ervenor
or effect the dismissal of int ervener's complaint. Moreover,
to r equir e pr ivat e r es po nd e n t to refile ano t he r case
will r esu l t in u nn e c e s s a r y delay and expe nse s and
ent ail mult iplicit y of suit s. This would, defeat the very
pur po s e of i nt e r v e nt io n whic h i s to d et er m i ne all
conflicting claims on the mat t er in lit igation and settle
in one act io n an d by a single jud g me n t t he whole
controversy among t he persons involved.
5. While, as a rule, int ervent ion is optional (Cruz-

cosa, et al. vs. Concepcion, et al., 101 Phil. 146)
and whet her the failure to intervene may be deemed as
323
waiver or estoppel depends on each case (Liguez vs. CA,

et al., 102 Phil. 577), it is believed t hat wher e the
i n t e r v e ne r ' s r ig ht s ar e i nt e r wo ve n i n the p e nd i n g
case and he had due notice of the proceedings, he will
t her eaft er be est opped from quest io ning the decision
rendered t herein t hrough anot her action.
6. An improper denial of a motion for int ervent ion
is correct ible by appeal (Ortiz vs. Trent, 13 Phil. 130;
Hospicio de San Jose, et al. vs. Piccio, et al., 99 Phil. 1039
fUnrep.J), bu t if t her e is grave abus e of d is cr et io n,
ma nda mu s will lie, where t here is no other plain, speedy
an d a d e q u a t e r emed y (Dizon vs. Romero, L-26252,
Dec. 24, 1968; Macias, et al. vs. Cruz, et al., L-28947,
Jan. 17, 1973, jo int ly decid ing t her e i n L 29235 and L-
30935). On the other hand, an improper gr ant ing of a motion
for int ervent ion may be controlled by cert iorari and
pro hibit io n. When the r ight s of the pa rt y seeking to
int ervene will not be prejudiced by the judgment in the
mai n case an d can be fully pr o t ect e d in a s e p a r a t e
proceeding, the court may deny t he int er vent io n sought
(Pflieder vs. De Britanica, L-19077, Oct. 20, 1964).
7. For an enumerat ion of cases wherein int ervent ion

was held to be proper, see Batama Farmer's Cooperative
Marketing Association, et al. vs. Rosal, et al. (L-30526,
Nov. 29, 1971).
8. . To warr an t int er vent io n, it must be shown

t hat the mo vant has legal int erest in the mat t e r in
lit igat ion and considerat ion must be given as to whet her
or not the adjudicat ion of the right s of the original
part ies may be delayed or prejudiced, while those of the
int er venor may be protected in a separat e proceeding.
Both r equir eme nt s must concur.
The int erest which ent it les a person to intervene in a
suit must be on the mat t er in lit igat ion and of such direct
and immediat e charact er t hat the int er venor will eit her
324
RUL E 19 INTER VENTIO N SE C . 2
gain or lose by the direct legal operat ion and effect of the
judgment (6318 v. Nocom, G.R. No. 175989, Feb. 4, 2008).
The words "an int erest in the subject" mean a direct inter•
est in the cause of action as pleaded and which would put
the int ervenor in a legal posit ion to lit igate a fact alleged
in t he complaint , wit ho ut the est ablis h me nt of which
plaintiff could not recover (Magsay say-Labrador, et al. vs.
CA, et al., G.R. No. 58168, Dec. 19, 1989).
Sec. 2. Time to intervene. — The m o t i o n to

i n t erven e may be filed at any time before ren d i t i on
of j u d g m e n t by the t ri al cou rt . A cop y of the
p l e a d i n g - i n - i n t e rv e n t i o n shall be at tach e d to the
mot ion and served on the ori gin al part i es, (n)
NOTES
1. The former rule as to when int er vent io n may

be allowed was expressed in Sec. 2, Rule 12 as "before
or dur ing a t r ial, " and t his ambiguit y also gave rise
to indecisive doctrines. Thus, incept ively it was held
t hat a motion for leave to intervene may be filed "before
or dur ing a t rial" even on t he day when the case is
being submit t ed for decision (Bool, et al. vs. Mendoza,
et al, 92 Phil. 892), as long as it will not unduly delay
the disposit ion of the case. The term "trial" was used in its
rest rict ed sense, i.e., the period for the int roduct ion of
evidence by bot h p a r t ie s . Hence, i f the mot ion for
int er vent io n was filed after the case had already been
submit t ed for decision, the denial t hereof was proper
(Vigan Electric Light Co., Inc. vs. Arciaga, L-29207
and L-29222, July 31, 1974). However, it was lat er
held t hat int er ve nt io n may be allowed at any t ime
before the rendit ion of final judgment (Lichauco vs. CA,
et al, L-23842, Mar. 13. 1975). Furt her, in the excep•
tional case of Director of Lands vs. CA, et al. (L-45163,
Sept. 25, 1979), the Supreme Court permitted interven•
tion in a case pending before it on appeal in order to avoid
325
RUL E 19 R E M E D I A L LA W C O M P E N D I U M SECS . 3 4
injustice and in considerat ion of the number of part ies

who may be affected by the disput e involving overlap•
ping of numerous land t it les.
2 . The u n c e r t a i n t y i n t hes e r u l i ng s ha s bee n
eliminat ed by the pr esent Sec. 2 of t his amended Rule
which per mit s t he filing of the motion to int ervene at any
time before the rendition of the judgment in the case, in
line wit h the doctrine in Lichauco above cit ed. The
just ificat ion advanced for t his is t hat before judgment is
rendered, the court, for good cause shown, may st ill allow
the int roduct ion of addit ional evidence and t hat is still
wit hin a liberal int er pr et at io n of the period for t rial.
Also, since no jud g me n t ha s yet been r e nd e r e d , t he
mat t e r subject of the int er vent io n may st ill be readily
resolved and int egrat ed in the judgme nt disposing of all
claims in t he case, and would not r equ ir e an overall
r eassessment of said claims as would be the case if the
judg ment had already been render ed (see also Looyuko,
et al. vs. CA, et al, G.R. No. 102696, July 12, 2001).
Sec. 3. Pleadings-in-intervention. — The i n t erve•

no r sh al l file a c o m p l a i n t - i n - i n t e r v e n t i o n i f he
as s e rt s a clai m agai n s t ei t h e r or all of the ori gi n a l
p art i es , or an a n s w e r - i n - i n t e rv e n t i o n i f he un i t e s
wit h the d e f e n d i n g party in re si st i n g a clai m agai n s t
the latter. (2 [c]a, R12 )
Sec. 4. Answer to complaint-in-intervention. —

The a n s w e r t o the c o m p l a i n t - i n - i n t e r v e n t i o n
shall be filed wi t h i n fifteen (15) day s from n ot ice
of the ord er ad m i t t i n g the same , u n l es s a d i fferen t
period i s fixed by the court. (2 [d]a, R12 )
NOTES
1. Where the int ervenor unit es wit h the defendant ,

he int er ve nes by filing an answer - in- int er ve nt io n. If
326
RUL E 19 INTER VENTIO N S E C S . 3- 4
he unit es wit h t he plaintiff, he may file a complaint-in-

int er vent io n against the defendant . If he does not ally
himse lf wit h e it he r par t y he may file a co mp la int - in-
int ervent ion against both.
2. Sec. 4 of t his Rule, as amended, now requires an

answer to the complaint -in- int ervent ion wit hin 15 days
from notice of the order admit t ing the same, unless a
different period is fixed by t he court. This changes the
procedure under the former Rule wherein it was optional
to file an answer to the complaint -in- int ervent ion, and
also set s aside t he doctrine in Luna vs. Abaya, et al.
(86 Phil. 472) which held t hat t here would be no default
since under the t hen exist ing rule the filing of the answer
was per missive. This change of procedure does not, of
course, affect the rule enunc iat ed in Froilan vs. Pan
Oriental Shipping Co. (95 Phil. 905) t hat if an answer
is valid ly filed to the co mp la int - in - int er ve nt io n, t he
answering part y may assert a counterclaim therein against
the int er venor.
327
RULE 20
CALENDAR OF CASES
S e c t i o n 1. Calendar of cases. — The cle r k of

cou rt, UNDER the di rect s u p e rv i s i o n o f the ju d ge ,
shall kee p a calen d a r of case s for pre-t rial, t h os e
w h o s e t ri al s wer e ad j ou rn e d o r p o s t p o n e d , an d
t hos e wit h mot i on s to set for h ea ri n g. P re f e ren c e
shall be gi ve n to habeas corpus cases, elect i o n cases,
sp eci al civi l act i on s, and th os e so req u i red by law.
(la , R22 )
NOTE
1. To ensure a more efficient monitoring of cases for

both supervision and report or ial purposes, the clerk of
court is now r equir ed to keep at least four separ at e
calendars reflect ing t he cases for pre-trial, for trial, those
whose t r ials were adjourned and post poned, and t hose
request ed to be set for hear ing. The so-called preferen•
tial cases must also be t aken into account. This sect ion
fur t he r make s i t the dut y of the pr e s id in g judge to
exercise direct supervisio n over those mat t er s.
Sec . 2. Assignment of cases. — The as s i g n m e n t

of case s to the d i fferent b ran ch e s of a Cou rt shall b
e d on e e x c l u s i v e l y b y raffle. The a s s i g n m e n t sh all
b e don e i n op e n s e s s i o n o f wh i c h a d e q u a t e n ot i c e
sh al l b e gi ve n s o a s t o afford i n t e r e s t e d p art i e s
op p o rt u n i t y to be p resen t . (7a, R22 )
NOTE
1. The assignment of cases is required to be done

exclusively by raffle, and t his set s aside the co nt r ar y
rulin g in Commissioner of Immigration vs. Reyes
328
RUL E 20 CALEND A R O F C AS E S SE C . 2
(L-23826, Dec. 28 , 1964). Also, t his provisio n of the

Rule reit erat es the requir ement in some circulars of the
Supreme Court t hat the raffle of cases shall be done in
open session wit h prior adequat e notice to the int erested
part ies.
329
RULE 21
S UB P O EN A
S ect i o n 1. Subpoena and subpoena duces tecum. —

Subpoen a i s a proces s directe d t o a perso n
r e q u i r i n g hi m t o a t t e n d an d t o t e s t i f y a t the
h ea ri n g or the trial of an act i on , or at any i n vest i •
gat ion c o n d u c t e d by comp et en t au t h ori t y, or for the
t aki n g of his d ep os i t i on . I t ma y also req u i re hi m
t o b ri n g w i t h h i m an y b o o k s , d o c u m e n t s , o r
oth er t hi n g s UNDER his cont rol, in wh i c h cas e i t i s
called a su b p oe n a duces tecum, (la , R23)
NOTE
1. The subpoena referred to in the first sent ence

of t his sect io n is dist inct ive ly called a subpo en a ad
testificandum. This is t he t echnica l and descr ipt ive
t erm for the ordinar y subpoena (Catty vs. Brobelbank,
124 N.J. Law 360, 12 A. 2d 128).
Sec. 2. By whom issued. — The su b p oen a ma y

be i ssu e d by:
a ) The C o u rt b e f o r e w h o m the w i t n e s s i s
req u i red to att en d ;
b) The Cou rt of the p lace wh er e the d ep o s i t i o n
i s to be t aken;
c) The officer or body au t h o ri ze d by law to do
so in c on n e c t i o n wit h i n ve st i gat i on s c o n d u c t e d by
said officer or body; or
d ) An y J u s t i c e o f the S u p r e m e Cou rt o r o f
the Court of Ap p eal s in an y cas e or i n ves t i g at i o n
p e n d i n g wi t hi n the Ph i li p p i n e s .
330
RUL E 21 SUBPOEN A SE C . 3
When ap p li cat i on for a su b p oen a to a p ri son e r

i s made, the jud ge or officer shall exa m i n e and study
carefu lly su c h app li cati on to d et ermi n e wh et h e r the
same is mad e for a valid p u rp ose.
N o p r i s o n e r s e n t e n c e d t o d e a t h , reclusion
perpetua or life i mp ri son m en t and wh o is con fi n ed
in an y pena l i n st i t u t i o n sh all be b rou gh t out si d e
the sai d p e n a l i n s t i t u t i o n for a p p e a r a n c e o r
a t t en d a n c e in any cou rt u n les s au th ori zed by the
S u p rem e Court. (2a, R23)
NOTES
1. . The e n u m e r a t i o n of the p e r so n s who

ar e aut horized to issue subpoenas has been expanded by
the inclusion of t he officer or body aut hor ized by law
in connect ion wit h invest igat ions conducted by them.
Also, a municipal t rial court may now issue a
subpoena for the at t endance before it of a prisoner
even if he is not confined in a munic ipal jail, unless
such pr isoner has been se nt e nc e d to deat h ,
reclusion perpetua or life i m p r i s o n m e n t an d his
des ir e d a p p e a r a n c e ha s not been authorized by t he
Supreme Court.
2. . The las t two p a r a g r a p h s of t hi s sect io n

are precaut ionar y measur es evolved from judicial
experience. These were t aken from Ad minist r at ive
Circular No. 6 of the Supreme Court, dated December 5,
1977.
Sec. 3. Form and contents. — A su b p o e n a shall

st at e the nam e o f the Cou rt an d the t it le o f the act i o
n or i n v e s t i g a t i o n , shal l be d i rect e d to the p erso n
wh os e a t t e n d an c e i s req u i red , and in the cas e of a
s u b p o e n a duces tecum, i t sh a l l al s o c o n t a i n a
r e a s o n a b l e d e s c r i p t i o n of the b ooks , d o c u m e n t s o r
t h i n g s d eman d e d whi c h mus t appear to the cou rt
prima facie relevant. (3a, R23)
331
RUL E 2 1 R E M E D I A L LAW C O M P E N D I U M SECS . 4 , 5
Sec. 4. Quashing a subpoena. — The Cou rt ma y

q u a s h a s u b p o e n a duces tecum u p o n m o t i o n
p ro mp t ly mad e and, in an y even t , at or before the
t i m e sp ec i fi e d t h e re i n i f i t i s u n r e a s o n a b l e an d
o p p r e s s i v e , o r the r e l e v a n c y o f the b o o k s ,
d o c u m e n t s o r t h i n g s d oe s no t a p p e a r , o r i f the
p e rs o n i n w h o s e b eh a l f the s u b p o e n a i s i s s u e d
fa i l s t o a d v a n c e the r e a s o n a b l e co s t o f the
p rod u ct i o n thereof.
The cou rt ma y q uas h a su b p o en a ad testifican•

dum on the grou n d that the w i t n e s s i s not b ou nd
t h e re b y . I n e i t h e r c a s e , the s u b p o e n a ma y b e
q u a sh e d o n the grou n d that the w i t n e s s fees and
k i l o m e t r a g e a l l o w e d b y t h e s e R u l e s w e r e no t
t en d e re d wh e n the su b p o en a wa s se rved . (4a, R23)
NOTE
1. A subpoena duces tecum may be quashed upon

proof t hat (a) it is unr easo nable and oppressive, (b) the
art icles sought to be produced do not appear prima facie
to be r eleva nt to the issues, and (c) the person asking
for the s u bpo e n a does not adva nc e the cost for the
product ion of the art icles desired.
The second par agr aph of Sec. 4 was added to make it
explicit t hat a subpoena ad testificandum may also be
quashed if the wit ness is not bound t her eby (see Sec. 10).
Also, it was considered necessary to r eit er at e herein, by
m a k i n g no n - c o mp l i a nc e a gr o un d for q u a s h a l of a
s u bp o e n a duces tecum, t hat the w it ne s s fees an d
k i lo met r a g e sho uld be t end er e d upon ser vice of t he
s u bp o e n a (see Sec. 6), whic h r e q u i r e m e n t is often
deliberat ely or unknowingly overlooked.
S ec . 6. Subpoena for depositions. — P ro o f of

se rvi ce of a n ot i c e to take a d ep o si t i on , as p rovi d e d
in sect i on s 15 and 25 of Rule 23 , shal l c o n s t i t u t e
332
RUL E 21 SUBPOEN A S E C S . 6- 8
s u f f i c i e n t a u t h o r i z a t i o n for the i s s u a n c e o f
s u b p o e n a s for the p e rs o n s n ame d i n said n ot i c e
by the clerk of the cou rt of the place in wh i c h the
d e p o s i t i o n i s t o b e t ake n . The cler k sh al l not,
h oweve r , i ssu e a su b p oen a duces tecum to any suc h
p erson wi t h ou t an order of the cou rt. (5a, R23)
S ec . 6 . Service. — S e r v i c e of a s u b p o e n a
shall be mad e in the same man n e r as p erson a l or
s u b s t i t u t e d s e r v i c e o f s u m m o n s . The o ri g i n a l
shal l be e xh i b i t e d an d a cop y t h e re o f d e l i v e re d
to the p erso n on wh o m i t i s served , t e n d e ri n g to
hi m the fee s for on e d ay' s a t t e n d a n c e an d the
k i l o m e t ra g e a l l ow e d b y t h es e Ru les, excep t t hat,
whe n a s u b p o en a i s issu e d b y o r o n behal f o f
the R e p u b l i c of the P h i l i p p i n e s or an offi cer or
agen c y thereof, the t en d e r nee d not be mad e. The
se rvi c e mu s t be mad e so as to allo w the w i t n e s s
a r e a s o n a b l e t i m e for p re p a ra t i o n and t rave l to
the p lace of at t e n d an c e . If the su b p oen a is duces
tecum, the rea s on a b l e cost of p rod u ci n g the books,
d o c u m e n t s o r t h i n g s d e m a n d e d sh a l l als o b e
t en d ered . (6a, R23)
Sec. 7. Personal appearance in court. — A person

p re s e n t i n C o u rt b efor e a j u d i c i a l of fi ce r ma y
be req u i red to testi fy as i f he were in at t en d an c e
upo n a s u b p o e n a i ssu e d b y su c h C o u rt o r
officer. (10, R23)
Sec. 8. Compelling attendance. — In cas e of

fai lu re of a wi t n e s s to at t en d, the cou rt or j ud ge
i s su i n g the s u b p o e n a , upo n proof o f the servi c e
t h e re o f an d o f the fai lu r e o f the w i t n e s s , ma y
i ssu e a w a r r a n t to the sh eri f f of the p ro v i n c e ,
o r hi s d e p u t y , t o arre s t the w i t n e s s an d b ri n g
him before the court or officer where his att en d an ce
333
RUL E 21 R E M E D I A L L AW COMPENDIU M S E C S . 9 , 10
i s re q u i r e d , an d the cos t o f su c h w a r r a n t an d
s e i z u r e o f s u c h w i t n e s s s h a l l b e p ai d b y the
w i t n e s s i f the Cou rt i s s u i n g i t sh al l d e t e r m i n e
t h at hi s f a i l u r e t o a n s w e r the s u b p o e n a wa s
willfu l and wi t h ou t just excu se . (11 , R23)
Sec. 9 . Contempt. — F a i l u r e by an y p e r s o n
wi t h ou t ad eq u at e cau s e to obey a su b p oe n a served
upo n hi m shall be d eeme d a con t e mp t of the cou rt
from wh i c h the su b p oen a i s i ssu ed . I f the su b p oen a
wa s not i ssu e d by a court, the d i s o b e d i e n c e t h eret o
shall be p u n i sh e d in acco rd an c e wit h the app li cab le
law or Rule. (12a, R23)
NOTE
1. See Sec . 3, et seq., Rule 71 on i nd ir e c t or

c o ns t r u ct iv e c o nt e mp t . While, UNDER t hat sect io n,
indirect co nt empt is to be punished only after wr it t en
charge and hear ing, i t i s also provided t hat "not hing
in t his sect ion shall be so const rued as to pr event the
court from issuing process to br ing the accused part y
int o co urt , or from ho ld ing him in cust o dy pend in g
such proceedings."
Sec. 10. Exceptions. — The p ro vi si o n s of sect i on s

8 and 9 of thi s Rule sh all not ap p ly to a w i t n e s s wh o
re s i d e s mor e t h a n on e h u n d re d (100) k i l o m e t e r s
fro m hi s r e s i d e n c e t o the p la c e w h e r e h e i s t o
t e st i f y by the o rd i n a r y cou rs e of trave l , or to a
d e t e n t i o n p ri son e r i f no p e rmi s s i o n of the cou rt in
wh i c h hi s cas e i s p en d i n g wa s ob t ained . (9a, R23)
NOTES
1. The right not to be compelled to attend upon a

subpoena by reason of the dist ance from the residence of
the wit ness to the place where he is to testify is somet imes
334
RUL E 21 SUBPOEN A SE C . 10
called the viatory right of a wit ness. The present provi•

sion, unlike its predecessor, does not dist inguish as to
whet her or not the wit ness resides in the same province
as the place where he is required to go and testify or
produce document s. What is now det erminat ive is t hat
the d is t a nc e be t w e e n bot h place s does not exceed
100 kilo met ers by the ordinar y course of travel, generally
by o ver la nd t r a ns p o r t at io n . The for mer dist anc e of
50 kilomet ers has been increased in view of the faster
and more available means of travel now obtaining in the
country.
2. In the case of Petition for Contempt Against
Benjamin Ravanera (L-15902, Dec. 23, 1964), the Supreme
Court declined to pass on the issue as to whet her t his
viatory right is available in criminal cases. However, in
the later case of People vs. Montejo (L-24154, Oct. 31 , 1967),
it was held t hat t his right is available only in civil cases.
335
RULE 22
COMPUTATION OF TIME
S ect i o n 1. How to compute time. — In co m p u t i n g

any p eri od of time p re sc ri b ed or al lo we d by t h es e
Ru les, or by ord er of the court, or by an y ap p li cab le
st at u t e, the day of the act or even t from wh i c h the
d e s i g n a t e d p e ri o d o f tim e b egi n s t o ru n i s t o b e
e xc l u d e d an d the dat e o f p e rf o rm a n c e i n c l u d e d .
I f the las t da y o f the p eri od , a s t hu s c o m p u t e d ,
falls on a S at u rd a y , a S u n d ay , or a legal h oli d a y
i n the p lac e wh e r e the Cou rt si t s , the tim e sh all not
run un ti l the nex t work i n g day. (n)
NOTES
1. The pert inent provisions of the Civil Code st at e:

"Art. 13. When the laws speak of year s, mo nt hs,
days or night s, i t shall be understood t hat years are
of t hre e hu ndr e d sixt y-five days each; mo nt hs, of
t hirt y days; days, of t went y- four hours; and night s
from sunset to sunr ise.
If mo nt hs are designat ed by t heir name, t hey
shall be computed by the number of days which they
respect ively have.
In co mput ing a per iod, t he first day shall be
excluded, and the last day included."
2. This Rule refers to the co mput at ion of a period of
time and not to a specific date fixed for the performance
of an act. It applies only when t he period of t ime is
prescr ibed by t hese Rules, by order of the court or by
any applicable statute. It adopts the rule on pret ermiss io n
of ho lidays, t hat is, the exclusion of such ho lidays in
the co mput at io n of the period, w henever the first two
condit ions st at ed in t his sect ion are present .
336
RUL E 22 C O M P U T A T I O N O F TIM E
3. Thus, the met hod of comput at ion under t his Rule

does not generally apply to those provided in a contract
(Art. 1159, Civil Code), a specific dat e set for a court
hear ing or a foreclosure sale (Rural Bank vs. CA, et al., L-
32116, April 21,1981) or prescript ive (not reglement ary)
per io d s specifica lly pr o vided by the Revised P ena l
Code for felonies t herein (Yapdiangco vs. Buencamino, L-
28841, June 24, 1983).
4. Since this Rule is likewise based on the provisions

of Art. 13 of the Civil Code, the meaning of the t er ms
t herein are also applicable. Accordingly, a pleading filed
on the last day of t he r egle me nt ar y period but after
office hours is still considered seasonably filed if duly
mailed (Caltex [Phil.], Inc. vs. Katipunan Labor Union,
98 Phil. 340) or is received by a person aut horized to do
so (see De Chavez vs. Ocampo, et al., 66 Phil. 76), since
a day consists of 24 hours.
5. As explained her eaft er in Rule 39, the period

of redempt ion of real propert ies sold at execut ion sale is
12 mont hs, hence following the provisions of this Rule in
relat ion to the aforequoted Art. 13 of the Civil Code, the
redempt ion period is actually 360 days. In comput ing when
such period begins to run or ends, the provisions of this
Rule govern.
6. In co nsider ing the applicat io n of t he rule on

pr et er miss io n of ho lidays, the second sent ence of t his
section refers to the place where the court sits. This is
because cert ain non- working holidays, or special days
as they were somet imes t ermed, are applicable to and
observed only in some part icular places or regions of
the country.
7. In Labad vs. The University of Southwestern
Philippines, et al. (G.R. No. 139665, Aug. 9, 2001),
this sect ion and t he subsequent ramificat ions ar is ing
t her efro m were expla ined by the S upr eme Court as
337
herein subst ant ia lly indicat ed, t hus: "Based on Sec. 1,

Rule 22 and as applied in several cases, where the last
day for doing any act required or permit t ed by law falls
on a Sat urday, a Sunday, or a legal holiday in t he place
where the court sit s, t he t ime shall not run unt il t he next
wo r king day. In t hi s case, pet it io ner st ill had unt il
December 28, 1998, a Monday and t he next business
day, to move for a 15-day ext ensio n consider ing t hat
December 26, 1998, the last day for pet itioner to file her
pet it ion for review, fell on a S at urday. The mot ion for
ext ension filed on December 28, 1998 was filed on t ime
since it was filed before the expirat ion of the t ime sought
to be ext ended."
The nex t issu e t o r eso lv e wa s how the 15-da y
ext ension should be reckoned, eit her from December 26,
1998 or December 28, 1998. As a rule, t he ext ensio n
should be t acked to the original per iod and commence
i m m e d i a t e l y aft e r the e x p i r a t i o n o f suc h p er io d .
However, in Moskowsky vs. Court of Appeals, et al.
(G.R. No. 104222, Mar. 3, 1994) and Vda. de Capulong,
et al. vs. Workmen's Insurance Co., Inc., et al. (L-30960,
Oct. 5, 1989), the S upreme Court allowed the ext ended
period to commence from t he specific time prayed for
in the mot ion for ext ensio n. In t hi s case, pet it io ne r
specifically manifest ed t hat she be gr ant ed an ext ension
of 15 days from December 28, 1998, or unt il J a nuar y 12,
1999, to file her pet it io n for review. The per iod for
reckoning the co mmencement of the addit ional 15 days
should hence be from December 28, 1998. Accordingly,
he r p e t it io n filed w it h t he Co ur t o f Ap p e a l s o n
J a nu a r y 12, 1999, exact ly 15 days from December 28,
1998, was filed on t ime.
8. . On t he co mp le me nt ar y decis io na l rule in
t he comput at io n of periods as applied to pleadings, see
the notes under Sec. 6, Rule 11.
338
RUL E 22 C O M P U T A T I O N O F TIM E SEC . 2
9. The much later case of Commissioner of Internal

Revenue, et al. vs. Primetown Property Group, Inc.
(G.R. No. 162155, Aug. 28, 2007) calls for a revisit ing of
the foregoing comment s and holdings on the comput at ion
of periods of t ime allowed or prescribed by the Rules, a
court order or an applicable st at ut e. It shall be noted here
t hat the period of time in disput e involves Sec. 229 of the
Nat ional I nt er nal Revenue Code which provides for the
two-year prescript ive period for filing a judicial claim for
tax refund or credit reckoned from the payment of said
tax or penalt y. There was no quest ion t hat the t axpayer' s
right to claim a refund or credit arose on April 14, 1998
when it filed its final adjusted r et ur n. The cont roverted
issue was whet her the two-year period was equivalent to
730 days, pur sua nt to Art. 13, Civil Code, as claimed by
pet it ioner, hence the respondent ' s claim submit t ed 731
days after its aforesaid r et ur n was one day beyond the
prescript ive period; or, as contended by the respondent,
the 731st day was wit hin the prescript ive period since the
year 2000 was a leap year and accordingly consisted of
366 days.
The S u p r e me C o u r t r ecalle d t hat in National

Marketing Corporation vs. Tecson (97 Phil. 70), it had
ruled t hat a year is equivalent to 365 days regardless of
whet her it is a calendar year or a leap year, which was
not always consist ent ly so. At any rate, it called at tent ion
to the fact t hat in 1987, E.O. 297, or the Administ rat ive
Code of 1987, was enacted, and Sec. 31 , Chapt er VIII,
Book I thereof provides:
Sec. 31 . Legal Periods. - "Year" s ha l l be

understood to be twelve calendar mont hs; "month" of
thirt y days unless it refers to a specific month in which
case it shall be computed according to the number of
days the specific mont h contains; "day" to a day of
twenty-four hours; and "night" from sunrise to sunset.
339
I t expla ined t hat a ca le ndar mo nt h is " a mo nt h

designat ed in the calendar wit hout regard to the number
of days it may contain. It is the period of t ime running
from the beginning of a certain numbered day up to, but
not including, the corresponding numbered day of the next
month, and if t here is not a sufficient number of days in
the next mont h, t hen up to and including the last day of
t hat mo nt h. To illu st r at e, one ca le nda r mont h from
Dece mber 31 , 2007 will be from J a n u a r y 1 , 2008 to
Ja nuar y 31 , 2008; one calendar month from J a nuar y 31 ,
2008 will be from Febr uar y 1, 2008 unt il Febr uar y 29,
2008."
Since t here obviously exists a manifest incompatibilit y

in the ma nner of comput ing legal periods under the Civil
Code and the Ad m in ist r at ive Code of 1987, the Court
declared t hat the aforecited provision of E.O. 292, being
the more recent law, governs t he co mput at ion of legal
periods. Since the two-year prescript ive period under the
facts of t his case consist ed of 24 calendar mo nt hs and
respondent ' s claim was filed on the last day of the 24th
ca le nd ar mo nt h, i t was co nsequent ly filed wit hin the
prescript ive period.
10. T hi s ta x cas e U N D E R c o m m e n t affo r ds the

opport unit y to invit e at t ent ion to some of the holdings of
the S upr eme Court in National Marketing Corporation,
vs. Tecson, et al. (139 Phil. 584) on the ant ecedent s of
Art. 13 of the Civil Code which limits the connot at io n of
each "year" t herein to 365 days. Prior to the Civil Code of
Spain, the Spanish S upreme Court had held t hat when
the law spoke of mont hs, it meant a month of 30 days, not
the "nat ural," "solar," "calendar," (or "civil") mont hs in the
absense of express provisions to the contrary. This concept
was modified in the P hilippines by Sec. 13 of our Revised
Ad minist rat ive Code, pur suant to which a "mont h" shall
be understood to refer to a "calendar" mo nt h. With the
enact ment of our Civil Code, we revert ed to the rule in
340
RUL E 22 COM PUTATIO N O F TIM E SE C . 1
the Spanis h Civil Code, but wit h t he addit ion of "years,"

which wa s o r da ined to mea n 365 days. The pr es e n t
provisions of E.O. 292 again adopt s t hat concept of a
calendar mont h, wit h the modification of how many shall
compose a year.
11. . As ear lier observed, the met hod of co mput at ion

under t his Rule does not in general apply to prescript ive
periods provided t herein by the Revised Penal Code for
fe lo nies suc h a s i n Ar t s . 9 0 an d 9 1 t hereo f. The
Yapdiangco case, supra, expands on t his edict on the
a u t ho r it y of local an d foreign do ct r ine s. I t is t her e
d e mo n s t r a t e d t hat a m ist a k e i s so met i me s mad e in
applying st at ut es of limit at ions in criminal cases and civil
suit s. The two classes of st at ut es are essentially different.
I n civil s u it s , the s t a t u t e i s i nt e r po se d b y t he
legislat ure as an impar t ial ar bit er. In t he construct ion of
the pena l st at ut e, t here is no int endment to be made in
favor of eit her part y. In criminal cases, the St ate is the
gr ant o r s ur r e nd e r i n g by an act of grace the r ight to
prosecute and declar ing an offense to be no longer the
subject of prosecut ion, hence such st at ut es of limit at ions
are liberally const rued in favor of the accused.
Also, the rule on pret ermission of holidays in civil suit s
provides t hat in const ruing its st at ut e of limit at ions, the
first day is excluded and the last day included, unless t hat
last day is dies non in which case the act may be done on
the succeeding business day. In criminal cases, such a
s it u at io n canno t le ngt he n the period fixed by law to
prosecute such offender. The waiver or loss of the right to
prosecute is auto mat ic and by operat ion of law. Where
the last day to file an informat ion falls on a Sunday or
legal holiday, the period cannot be ext ended up to the
next working day since prescript ion has already set in.
The que st io n of t he applicabil it y of t his Rule in
comput ing periods provided by an "applicable st at ut e," as
341
gener ically referred to, could yield the occasion for a

r e le va nt cr it ique based on our own legal s yst em and
bibliography.
Sec. 2. Effect of interruption. — S h ou l d an act
b e don e wh i c h effect i vely i n t erru p t s the ru n n i n g
o f the p e ri o d , the a l l o w a b l e p e ri o d aft e r su c h
i n t e r ru p t i o n sh al l st ar t t o ru n o n the da y after
n ot ice of the c e s s a t i o n of the cau s e thereof.
The da y o f the act that cau se d the i n t e rru p t i o n
shall be e xc l u d e d in the co m p u t at i o n of the p eri od,
(n)
NOTE
1. The original draft of this sect ion referred to an

act or event which effectively int err upt s the r unning of
the period of time co nt emplat ed in the preceding section.
The even t r efer r e d to would inc lud e force majeure,
fort uitous event s or calamit ies. The quest ion, of course,
is t he det er minat io n of when the event occurred and was
t er minat ed, and how the part y affected would know or be
made aware of the period of such int err upt io n. It was
believed t hat notice thereof can be given by the court to the
part ies, on a case to case basis.
The word "event " was accordingly e lim i nat ed and
only t he "act" done was ret ained as an express cause for
the int err upt io n since t hat fact would obviously be made
known or notice t hereo f given to the part y concerned.
P ar e nt het ic a l l y, t he int er r upt io n of the r eg le me nt ar y
period as underst ood in t his sect ion does not have the
same concept as int er rupt io n for purposes of t he st at ut e
of limit at ions or prescr ipt ive periods in the Civil Code.
342
RULE 23
D E P O S I T I O N S PEN D IN G ACTION
Sectio n 1. Depositions pending action, when

may be taken. — By leav e of cou rt after j u ri sd i ct i on
ha s b ee n o b t a i n e d ove r an y d e f e n d a n t o r ove r
p ro p e r t y w h i c h i s the su b j e c t o f the a c t i o n , o r
wi t h ou t suc h leav e after a n an swe r has bee n served ,
the t e s t i m o n y of an y p erson , wh et h e r a party or not,
ma y b e t a k e n , a t the i n s t a n c e o f an y p art y , b y
d e p o s i t i o n u p o n ora l e x a m i n a t i o n o r w r i t t e n
i n t e rro g a t o ri e s . The at t en d an c e o f wi t n e s s e s ma y
be co m p e l l e d by the us e of a su b p oen a as p rovi d e d
i n Ru l e 21 . D e p o s i t i o n s sh al l b e t a k e n on l y i n
a c c o rd a n c e wit h t h es e Ru les. The dep o si t i o n of a
p e rs o n c o n f i n e d i n p ri so n ma y b e take n onl y b y
leave of Cou rt on suc h t erm s as the cou rt p resc ri b es,
(la , R24)
NOTES
1. Rules 23 to 28 provide for the different modes of

discovery t hat may be resorted to by a part y to an action,
viz.:
a. Deposit ions pending action (Rule 23);
b. Depo s it io n s before act io n or pend in g appeal
(Rule 24);
c. I nt er rogat or ies to part ies (Rule 25);
d. Admission by adverse part y (Rule 26);
e. Product ion or inspect ion of document s or t hings
(Rule 27); and
f. P hys ic a l an d me nt a l e xa m i nat io n of per so n s
(Rule 28).
343
Rule 29 provides for the legal consequences for the

refusal of a part y to comply wit h such modes of discovery
lawfully resort ed to by the adverse part y.
2. In criminal cases, the t aking of the deposit ion of
wit nesses for the prosecut ion was formerly aut horized by
Sec. 7, Rule 119 for t he purpo se of p er p et u at in g t he
evidence to be present ed at the t rial, wit hout a similar
provision for defense wit nesses. However, in the 1985
Rule s o n C r i m i n a l P r o c e d u r e , only the co nd it io na l
e x a m i n a t i o n , an d no t a depo s it io n , of p r o s e c u t io n
wit nesses was per mit t ed (Sec. 7, Rule 119) and t his was
followed in the lat est revision (Sec. 15, Rule 119).
3. Deposit ions are classified into:

a. Deposit ions on oral examinat io n and deposit ions
upon wr it t en int errogat or ies; or
b. De po s it io n s de bene esse an d depo s it i o n s in
perpetuam rei memoriam.
Deposit ions de bene esse are those t aken for purposes
of a pending action and are regulat ed by Rule 23, while
deposit ions in perpetuam rei memoriam are those t aken
to per pet u at e evidence for pur poses of an a nt ic ipat ed
action or furt her proceedings in a case on appeal and are
now regulat ed by Rule 24.
4. . The court may det ermine whet her the

deposit ion s ho u l d b e t a k e n upo n ora l e x a m i n a t i o n o
r w r it t e n int errogat or ies to prevent abuse or
har a ss me nt (De los Reyes vs. CA, et al., L-27263, Mar.
17, 1975).
5. . Tr ia l judg e s should e nco ur age t he use of

t he different modes of discovery since a knowledge of
the evidence of the adverse part y may facilit ate an
amicable set t le ment or expedit e the t rial of a case.
However, since resort t her et o is not mandat ory, if the
part ies choose not to avail of discovery procedures, the pre-
t rial should be set accordingly (Koh vs. IAC, et al.,
344
G.R. No. 71388,
345
RUL E 23 DEPOSITION S P E N D I N G AC T I O N SE C . 1
Sept. 23, 1986). This impasse is sought to be part ially

remedied by the revised Rules.
6. It is the dut y of each cont ending part y to lay

before the court all the mat er ia l and r e le van t facts known
to him, suppr essing or concealing not hing, nor p r e v e nt i n
g a n o t h e r p a r t y , b y cle ver an d adr o i t ma nipu lat io n of
the t echnical rules of evidence, from also pr esent ing all
the facts wit hin his knowledge.
Init ially, t hat dut y to lay t he facts before the court is
accomplished by the pleadings filed by the part ies but only
in a general way as only ult imat e facts are set forth in the
pleadings. A bill of part iculars may be ordered by the
court on mot ion of a part y but the office of a bill of
part icular s is limited to making more part icular or definite
the u lt i m a t e fact s in a plead ing, and not to supply
evident iar y mat t er s. These evident iar y mat t er s may be
inquired into and learned by the part ies before the trial
t hrough the deposit ion-discovery mechanism in Rules 24
to 29.
U n f o r t u n a t e l y , i t a p p e a r s t hat a mo n g far too
many lawyers (and not a few judges) t here is, if not a
r egr et t able unfa mi liar it y and even outr ight ignorance
abo u t the n a t u r e , p ur po s e s an d o p e r a t io n s o f the
modes of discovery, at least a st rong yet unreasoned and
unr easo nable disinclinat ion to resort to them - which is
a great pity for the int elligent and adequat e use of the
deposit ion-discovery mechanism, coupled with pre-tria l
p r o c e d u r e , could effect ively s ho r t e n the per io d of
l it i g a t io n an d spee d up ad ju d ic at io n (Republic vs.
Sandiganbayan, et al., G.R. No. 90478, Nov. 21, 1991).
7. The ot her principal benefits desirable from the

availabilit y and operat ion of a liberal discovery procedure
are: (1) it is of great assist ance in ascert aining the t rut h
and prevent ing perjury because the wit ness is examined
while his memory is still fresh, he is generally not coached,
he cannot at a lat er date contradict his deposit ion, and
346
his deposit ion is preserved in case he becomes unavailable;

(2) it is an effective means of det ect ing and exposing
fake, fraudulent and sham claims and defenses; (3) it
make s a va i la b l e in a s i mp le, co nve nie n t and often
inexpensive way facts which ot herwise could not have
been proved later; (4) it educat es the part ies in advance
of trial on the real values of their claims and defenses,
t her eb y e nco ur a g in g s e t t le me nt s out of court ; (5) i t
expedites the disposal of lit igat ions, saves the time of the
court and helps clear the dockets; (6) it safeguards against
surprise at the trial, prevent s delays, simplifies the issues,
and t hereby expedit es the t rial; and (7) it facilitates both
the pr ep ar at io n and t rial of cases (Fortune Corporation
vs. CA, et al., G.R. No. 108119, Jan. 19, 1994).
8. Sec. 1 of t his Rule provides t hat a deposition may

be resorted to after jur isdict ion has been obtained over any
defendant , not all defendant s. Leave of court is not
necessar y to take a deposit ion after an answer to the
complaint has been filed, but such leave is required where
no answer has yet been filed (even if jur isd ict io n has been
obt ained over any defendant ), since before the filing of
the answer , leave of court may be gr a nt e d bu t only in
e xc e p t io na l or u n u s u a l s i t u a t i o n s (Republic vs.
Sandiganbayan, et al., G.R. No. 112710, May 30, 2001).
Sec. 2. Scope of examination. — Un les s o t h e rw i s e

ord e re d by the Cou rt as p rovi d e d by sect i o n 16 or
1 8 o f th i s Ru le , the d e p o n e n t ma y b e e x a m i n e d
r e g a r d i n g an y m a t t e r , no t p r i v i l e g e d , w h i c h i s
r e l e v a n t t o the s u b j e c t o f the p e n d i n g a c t i o n ,
w h e t h e r re l a t i n g t o the clai m o r d e f e n s e o f an y
ot h e r party, i n c l u d i n g the e xi s t e n c e , d e s c ri p t i o n ,
n a t u re , c u s t o d y , c o n d i t i o n , an d l o c a t i o n o f an y
b ooks , d o c u m e n t s , o r ot h e r t a n g i b l e t h i n g s an d
the i d e n t i t y an d l o c a t i o n o f p e r s o n s h a v i n g
k n o w l e d g e of re levan t facts. (2, R24)
347
RUL E 23 DEPOSITION S P E N D I N G ACTI O N SECS . 3 , 4
Sec. 3. Examination and cross-examination. —

E xa m i n a t i o n an d c ro s s - e xa m i n a t i o n o f d e p o n en t s
may p roceed as p e rmi t t ed at the trial U NDER sect i on s
3 to 18 of Rule 132. (3a, R24)
NOTE
1. The officer before whom the deposit ion is t aken

does not have the power to rule upon object ions to the
quest ions. He should merely have such objections noted
in the deposit ion (see Sec. 17).
Sec. 4. Use of depositions. — At the trial or upo n

the h e a r i n g o f a m o t i o n o r a n i n t e r l o c u t o r y
p ro ce ed i n g , an y part or all of a d ep os i t i o n , so far
as ad mi s si b l e UNDER the ru les of evi d en c e , ma y be
u s e d a g a i n s t an y p a rt y wh o wa s p r e s e n t o r
rep re s en t e d at the t aki n g of the d ep osi t i o n or wh o
had du e n ot i c e thereof, in acco rd a n c e wit h an y on e
of the fo l l owi n g p rovi si on s :
(a) Any d e p o s i t i o n ma y be use d by an y party
for the p u rp os e of con t rad i ct i n g or i m p e a c h i n g the
t e s t i m o n y of d ep o n en t as a wi tn ess ;
(b) The d ep os i t i o n of a party or of an y on e wh o
at the tim e of t aki n g the d ep osi t i o n wa s an officer,
d i rect or, or m a n ag i n g agen t of a pub li c or p ri vat e
co rp o rat i on , p a rt n e rsh i p , or a s so ci a t i o n wh i c h i s
a party ma y be use d by an ad vers e party for an y
p u rp ose;
(c) The d ep osi t i o n of a wit n ess , wh et h e r or not
a party, ma y be use d by any party for any p u rp os e
i f the cou rt finds: (1) that the wit n es s i s dead; or
(2) that the wi t n e s s resi d e s at a d i st an ce more tha n
one h u n d re d (100) ki lo met e rs from the place of trial
or h eari n g , or i s ou t of the Ph i li p p i n es , u n les s i t
ap p ears that his ab sen c e wa s p rocu red by the party
off e ri n g the d e p o s i t i o n ; o r (3) that the w i t n e s s ,
348
i s u n a b l e t o a t t e n d o r t e s t i f y b e c a u s e o f age ,
si ckn e ss , infi rmity, or i mp ri son men t ; or (4) that the
party of fe ri n g the d e p o s i t i o n ha s bee n u n ab l e t o
p rocu re the at t en d a n c e of the w i t n e s s by su b p oen a ;
o r (5) u p o n a p p l i c a t i o n an d n o t i c e , t h at su c h
e x c e p t i o n a l c i r c u m s t a n c e s e xi s t a s t o mak e i t
d e si rab l e , in the i n t eres t o f j u st i c e an d wit h due
r e g a r d t o the i m p o r t a n c e o f p r e s e n t i n g the
t e s t i m o n y o f w i t n e s s e s ora l l y i n op e n cou rt , t o
allow the d e p o s i t i o n to be u sed; and
(d) If on l y par t of a d e p o s i t i o n is offe red in
e v i d e n c e by a party, the ad vers e party ma y req u i re
hi m to i n t rod u c e all of i t wh i c h i s re levan t to the
part i n t rod u ced , an d an y party ma y i n t rod u c e any
oth e r parts. (4a, R24)
NOT E S
1. . Wher e t he wit ne ss is ava ila ble to t est ify

and t he sit uat ion is not one of t hose excepted under Sec.
4 of t his Rule, his deposit ion t heretofore t aken is
inadmissible in evidence and he should in lieu t her eo f
be made to testify (Vda. de Sy-Quia vs. CA, et al.,
G.R. No. 62283, Nov. 25, 1983).
2. A depo s it io n may be used for i mp e a c h i n g or

cont radict ing any wit ness, but it can be used as evidence
by a p a r t y ("for an y p u r p o s e " ) U N D E R the specific
condit ions set out in Sec. 4. If the deposition is t hat of a
part y or of an employee of a corporat ion which is a part y,
it can be used by the adverse part y for impeachment of
the deponent or as direct evidence of his case, whet her
t he depo nen t i s ava ilable or not; but said deposit io n
cannot be used by the depo nent -part y as evidence of his
case, unless he or the corporate employee cannot testify
for any reason st at ed in Par. (c). If the deponent is only
a wit ness and is available at the trial, his deposit ion cannot
be used as evidence but may be used only to impeach him.
348
RUL E 23 DEPOSITION S P E N D I N G AC TIO N SE C . 5
If the deponent -wit ness is not available under any of the

cir cumst ances in Par. (c), t hen his deposit ion can be used
as direct evidence.
3. . UNDE R the for mer Sec. 4(c)(2), the

d ist a nc e provided was more t ha n 50 kilomet ers from the
residence of the deponent to the place of trial or
hear ing. It has now been increased to more t han 100
kilo met ers, as in the ame nd me nt to the rule on
subpoenas and for the same reason (see Sec. 10, Rule 21).
4. Depo s it io ns ar e chiefly a mode of discover y.

They are int ended as a means to compel disclosure of facts
rest ing in t he knowledge of a part y or other persons which
are relevant in a suit or proceeding in court. Deposit ions
and the ot her modes of discovery are meant to enable a
part y to learn all the mat er ia l and relevant facts, not only
known to him and his wit nesses but also those known to
the adverse part y and the lat t er' s own wit nesses.
Deposit ions are not generally meant to be a subst it ut e
for the actual test imony in open court of a part y or wit ness.
The depo nen t must , as a rule, be pr e s e nt e d for oral
e xa m i nat io n in open court a t the t r ial. I ndeed, any
deposit ion offered to prove the facts t here in at the t rial of
the case, in lieu of the act ual test imony of the deponent in
court, may be opposed and excluded for being hearsay,
except in those specific inst ances aut horized by the Rules
UNDE R p a r t i c u l a r co nd it io ns and for cer t ai n limit ed
purposes (Dasmarinas Garments, Inc. vs. Reyes, etc., et
al., G.R. No. 108229, Aug. 24, 1993).
Sec. 5. Effect of substitution of parties. — Su b st i •

t u t i o n of p art i e s doe s not affect the ri ght to us e
d ep o s i t i o n s p revi ou s l y t aken; and, whe n an act ion
has bee n d i s m i s s e d and an ot h e r act ion i n vo lv i n g
the same su b j ect i s aft erward b rought b et wee n the
same p art i es or th ei r rep re s en t at i ve s or su cc es s o r s
in i nt erest , all d ep os i t i o n s lawfu lly t ake n and duly
349
filed in the former act i on may be use d in the latter

as i f ori gi n al ly t ake n t herefor. (6, R24)
Sec. 6. Objections to admissibility. — S u b j ect to

the p ro vi si on s of sect i o n 29 of thi s Rule, ob j ect i on
ma y be mad e at the trial or h ea ri n g to re c e i v i n g in
e v i d e n c e an y d e p o s i t i o n o r part t h e re o f for an y
r e a s o n w h i c h w o u l d r e q u i r e the e x c l u s i o n o f
the e vi d e n c e i f the wi t n es s wer e the n p re se n t and
t est i fyi n g. (6, R24)
Sec. 7. Effect of taking depositions. — A p art y

sh al l no t b e d e e m e d t o mak e a p e r s o n hi s ow n
w i t n e s s for an y p u rp os e by t aki n g his d ep osi t i on .
(7, R24)
Sec. 8. Effect of using depositions. — The int ro•

d u c t i o n i n e v i d e n c e o f the d e p o s i t i o n o r an y
par t t h e r e o f for an y p u rp o s e ot h e r t h a n th at o f
c o n t ra d i c t i n g o r i m p e a c h i n g the d e p o n e n t make s
the d ep o n en t the wi t n e s s o f the p arty i n t ro d u ci n g
the d e p o s i t i on , but thi s shall no t app ly t o the us e
by an ad ve rs e p art y of a d ep o s i t i o n as d esc ri b e d in
p a ra g ra p h (b) of sect i o n 4 of thi s Rule. (8, R24)
Sec. 9. Rebutting deposition. — At the t ri al or h eari n g

, an y p arty ma y reb u t an y relev an t evi d en c e
c o n t a i n e d in a d e p o s i t i o n w h e t h e r i n t ro d u c e d by
hi m or by an y ot he r party. (9, R24)
NOTE
1. The int roduct io n of the deposit ion binds the part y

who int roduces it, since he t hereby makes the deponent
his wit ness, except (a) if it is int roduced to impeach or
contradict the wit ness, or (b) if it is the deposit ion of an
opposing part y.
350
RUL E 23 D E P O S I T I O N S P E N D I N G ACT IO N S E C S . 1 0 -1 1 , 1 2
Sec. 10. Persons before whom deposition may be

taken within the Philippines. —- Wi t h i n the Ph i l i p • p i n e s
, d e p o s i t i o n s ma y b e t a k e n b e f o r e an y ju dge,
n ot ary pub li c, or the p erso n referred to in sect i o n 14
hereof. (10a, R24)
Sec. 11. Persons before whom depositions may

be taken in foreign countries. — In a forei gn st at e or
cou n t ry , d e p o s i t i o n s ma y b e t ake n (a) o n n ot i c e
befor e a S e c re t a ry o f e mb a s s y o r le g ati on ,
c o n s u l g e n e ra l , c on s u l , v i c e- c o n s u l , o r c o n s u l a r
agen t of the Rep ub li c of the Ph i li p p i n es; (b) before
su c h p e rs o n o r of fi ce r a s ma y b e a p p o i n t e d b y
c o m m i s s i o n or UND ER let t e r s rogat ory; or (c) the
p erso n referred to in sect i o n 14 hereof. (11a, R24)
NOTE
1. These two sections have been amended to include,

among the persons before whom depositions may be t aken,
any person aut horized to administ er oat hs and chosen or
st ipulat ed upon in writ ing by the part ies.
Sec. 12. Commission or letters rogatory. — A

c o m m i s s i o n or let t ers rogatory shall be i ssu e d only
wh e n n e c e s s a r y o r c on v en i en t , o n ap p li cat i on and
n ot i ce, and on suc h t erm s and wit h such d i rect i on
a s ar e j u s t an d a p p r o p r i a t e . O f fi ce r s ma y b e
d e s i g n a t e d i n n o t i c e s o r c o m m i s s i o n s ei t h e r b y
name or d e s c ri p t i v e title and let t ers rogat ory may
be ad d re s s e d to the ap p rop ri at e j u dici al aut h ori t y
in the forei gn cou n t ry. (12a, R24)
NOTES
1. A commission is addressed to any aut horit y in

a foreign co unt r y a u t ho r iz e d t her e i n to tak e down
deposit ions and the t aking of such deposit ion is subject to
351
RUL E 2 3 R E M E D I A L LAW C O M P E N D I U M S E C S . 1 3 -1 4
the rules laid down by the court issuing the commission.

Let t ers rogatory are addressed to a judicial aut hor it y in
the foreign count r y and the t aking of such deposit ion
is subject to the rules laid down by such foreign judicial
aut horit y (see The Signe, D.C. La., 37F. Supp. 819, 820).
Let t ers rogatory are generally resorted to when t here is
difficulty or impossibilit y of obtaining t he deposit ion by
commission (18 C.J. 653).
2. A commission may be defined as an ins t rument

issued by a court of just ice, or other compet ent tribunal,
to aut horize a person to take deposit ions or do any other
act by a u t ho r it y of suc h Co urt or t r i bu na l . L e t t er s
rogatory, on the other hand, are defined as inst r ument s
sent in the name and by aut hor it y of a judge or court to
anot her, request ing the lat t er to cause to be examined,
upon int errogat or ies filed in a cause pending before the
former, a wit ness who is wit hin the jurisdict ion of the judge
or court to whom such let t ers are addressed. Under our
Rules, a commission is addressed to officers designat ed
eit her by name or descript ive t it le, while let t ers rogatory
are addressed to some appropriat e judicial aut hor it y in
the foreign st at e. Lett ers rogatory may be applied for and
is sue d only aft e r a co m m is s io n ha s bee n r e t u r n e d
unexecut ed (Dasmarinas Garments, Inc. vs. Reyes, etc.,
et al., supra).
Sec. 13. Disqualification by interest. — No

d e p o s i t i o n shall be t ak e n before a p e rso n wh o is a
re lat i v e wi t h i n the si xt h d egre e o f c o n s a n g u i n i t y
or affi ni ty, or e m p l o y e e or c o u n s e l of an y of the
p art i es; or wh o i s a re lat i ve wi t h i n the sam e d eg ree ,
or e m p l o y e e of suc h cou n se l , or wh o i s fi n an ci al ly
i n t e re st e d in the act i on . (13a, R24)
Sec. 14. Stipulations regarding taking of deposi•

tions. — I f the p a r t i e s so s t i p u l a t e in w r i t i n g ,
d e p o s i t i o n s ma y b e t ake n before an y p erso n aut h o -
352
RUL E 23 D E P O S I T I O N S P E N D I N G ACT IO N S E C S . 1 5 -1 6
ri zed to ad mi n i st e r oat h s , at an y time or p lace, in

ac co rd a n c e wit h t h es e Ru le s , and wh e n s o t ake n
may be use d like oth e r d ep o si t i on s . (14a, R24)
NOTE
1. As earlier explained, the part ies may st ipulat e in

writ ing for the t aking of deposit ions before any person
aut horized to administ er oat hs, whet her the deposit ion is
to be t aken in the Philippines or in a foreign country. While
an equivalent of Sec. 14 was also provided in the former
Rules, it was stat ed t herein t hat the deposition before such
per so n may be t ake n "upon any not ice, and in any
manner." As a pr udent course of action, t hat phrase has
been r eplaced by an a me nd m e n t r eq uir ing t hat said
deposit ions be t aken in accordance wit h these Rules.
Sec. 16. Deposition upon oral examination; notice;

time and place. — A party d esi ri n g to take the d ep o •
si ti on of an y p erso n upo n oral e xa m i n a t i o n shall
give r e a s o n a b l e n ot i c e i n w ri t i n g t o ever y ot h e r
party to the act i on . The n ot ice shall state the time
and p lace for t aki n g the d ep o si t i o n and the nam e
an d a d d r e s s o f eac h p e r s o n t o b e e x a m i n e d , i f
kn own , an d i f the nam e i s not kn own , a gen e ra l
d esc ri p t i on suffici ent to identify hi m or the p arti cu •
lar class or grou p to wh i c h he belongs. On mot i o n
of any party upo n wh o m the n oti ce i s served, the
cou rt may for cau s e sh ow n en large or sh ort e n the
time. (15, R24).
Sec. 16. Orders for the protection of parties and

deponents. — After n ot i c e is se rv e d for t a k i n g a
d e p o s i t i o n b y ora l e x a m i n a t i o n , u p o n m o t i o n
season ab ly mad e by any party or by the p erso n to
be exa mi n e d and for good caus e sh own , the cou rt
i n w h i c h the a c t i o n i s p e n d i n g ma y ma k e a n
order that the d ep os i t i o n shall not be taken, or that
353
i t ma y be t ake n only at some d e s i g n a t e d p lace oth er

tha n that st at e d in the n ot i ce , or that i t ma y be t a k e
n on l y o n w ri t t e n i n t e r r o g a t o r i e s , o r th at cert ai n
mat t er s shall not be i n q ui red into, or that the scop e
of the exa mi n at i o n shall be held wit h no on e
p re s e n t excep t the p art i e s t o the act i o n and th ei r
officers or coun sel , or that after b ein g sealed the
d e p o s i t i o n shall be op en e d only by ord er of the cou rt ,
o r that sec re t p ro c e s s e s , d e v e l o p m e n t s , o r re se a rc h
nee d not be d i sc lo s ed , or that the p art i es shal l
s i m u l t a n e o u s l y file sp eci f i e d d o c u m e n t s or
i n fo rma t io n en c lo se d i n seale d e nv e lo p e s t o b e
op en e d as d i rect e d by the court; or the Cou rt ma y mak
e an y ot h e r ord e r wh i c h j u s t i c e re q u i re s t o p r o t e c t
the p a rt y o r w i t n e s s fro m a n n o y a n c e ,
e m b a r ra s s m e n t , or op p re s si on . (16a, R24)
Sec. 17. Record of examination; oath; objections. —

The officer before wh o m the d ep osi t i on i s to be t ake n
shall pu t the w i t n e s s o n oat h an d shall p e rs o n a l l y ,
o r b y s o m e o n e act i n g UNDER hi s d i re c t i o n an d i n
his p re s e n c e , record the t e s t i m o n y o f the w i t n es s .
The t e s t i m o n y sh al l b e t a k e n s t e n o g r a p h i c a l l y
u n les s the p art i e s agre e o t h e rw i s e . All ob j ect i on s
m a d e a t the t i m e o f the e x a m i n a t i o n t o the
q u a li f i c at i on s o f the officer t aki n g the d ep o si t i o n , or
t o the m a n n e r o f t aki n g it, o r t o the e v i d en c e
p re s e n t e d , or to the con d u c t of an y party, and an y
oth e r ob j ect i on to the p ro c e e d i n g s , shall be n ot e d
b y the o f f i c e r u p o n the d e p o s i t i o n . E v i d e n c e
ob j ect e d to shall be t ake n su b j ect to the ob j ect i on s .
I n li e u o f p a r t i c i p a t i n g i n the oral e x a m i n a t i o n ,
p art i e s se rve d wit h n ot i c e of t aki n g a d ep o s i t i o n
ma y t r a n s m i t w r i t t e n i n t e r r o g a t o r i e s t o the
officers, wh o sh all p ro p ou n d t h e m t o the w i t n e s s
and record the a n s w e r s verbatim. (17, R24)
354
RUL E 23 D E P O S I T I O N S P E N D I N G ACT IO N S E C S . 1 8 -1 9
Sec. 18. Motion to terminate or limit examination.

— At an y tim e du ri n g the t aki n g of the d ep o si t i on ,
o n m o t i o n o r p e t i t i o n o f an y p art y o r o f th e
d e p o n en t an d up o n a s h o w i n g that the e xa m i n a • tio
n i s b ei n g c o n d u c t e d i n bad fait h o r i n su c h man n er
a s u n re a s o n a b l y t o an n oy , emb a rra s s , o r op p res s
the d ep on en t or party, the cou rt in whi c h the act i o n
i s p e n d i n g or the Regi on al Trial Court of the place
wh er e the d ep osi t i o n i s b ein g t ake n may ord e r the
offi cer c o n d u c t i n g the e x a m i n a t i o n t o ceas e
fo rt h wi t h from t aki n g the d ep os i t i on , or ma y li mi t
the scop e an d m an n e r o f the t ak i n g o f the d ep o si t i o n
, as p rovi d e d in sect i o n 16 of thi s Rule. I f the
ord er mad e t e r m i n a t e s the e xa m i n a t i o n , i t shall be
re su m e d t h erea ft e r on ly upo n the order of the cou rt
in wh i c h the act ion i s p end i n g . Upo n de• m an d o f the
o b j e c t i n g p art y o r d e p o n e n t , the t aki n g of the
d ep o s i t i o n shall be s u s p en d e d for the time n e c e s s a r y
to mak e a not i ce for an order. In g ra n t i n g o r re f u s i n g
su c h ord e r , the Cou rt ma y i mp os e upo n ei t h e r part y
or upo n the wi t n es s the req u i re m e n t to pay suc h
cost s or exp en s e s as the court ma y d ee m re a son ab l e
. (18a, R24)
Sec. 19. Submission to witness; changes; signing. —

Wh e n the t e s t i m o n y i s fu ll y t r a n s c r i b e d , the
d e p o s i t i o n sh al l b e s u b m i t t e d t o the w i t n e s s for
e xa m i n a t i o n and shall be read to or by him, u n les s
suc h e xa m i n at i o n and read i n g are wai ve d by the
wi t n e s s and by the part i es. Any ch an g e s in form
o r s u b s t a n c e wh i c h the w i t n e s s d e s i re s t o mak e
shall be ent ere d upo n the d ep o si t i o n by the officer
wi t h a s t a t e m e n t o f the r e a s o n s gi v e n b y the
w i t n e s s for m a k i n g th em . The d e p o s i t i o n sh al l
the n be si gn e d by the wi tn ess , u n les s the p art i es
b y s t i p u l a t i o n wai v e the s i gn i n g o r the w i t n e s s
is ill or can n o t be found or refu ses to sign. If the
355
RUL E 2 3 R E M E D I A L LAW C O M P E N D I U M S E C S . 2 0 -2 3
d ep o s i t i o n i s not si gn e d by the wi t n es s , the officer

shall sign i t an d state on the record the fact of the
wai ve r or of the i lln es s or ab sen c e of the wi t n e s s or
the fact o f the refu sa l t o sig n t o g e t h e r wit h the reaso
n gi ve n t h erefo r, i f an y, an d the d e p o s i t i o n ma y
t he n be use d as fully as t h ou g h si gn ed , un les s on a
mot i o n to su p p res s UNDER sect i o n 29 (f) of thi s Ru le
, the Cou rt h old s that the re a s o n s gi ve n for the
re fu sa l to sign req u i re rej e ct i on of the d ep osi • tion in
wh ol e or in part. (19a, R24)
Sec. 20. Certification and filing by officer. — The

offi c e r sh a l l c e rt i f y o n the d e p o s i t i o n t h at the
w i t n e s s wa s d u l y swo r n t o b y hi m an d th at the
d e p o s i t i o n i s a tru e record of the t es t i m o n y gi ve n
b y the w i t n e s s . H e sh al l t h e n s e c u re l y sea l the
d e p o s i t i o n in an en ve lop e i n d orse d wit h the title of
the act i o n and marke d " Dep osi t i on o f ( h ere in sert
the nam e of wi t n e s s) " an d shall p rom p t l y file i t wit h
the Cou rt in wh i c h the acti o n i s p e n d i n g or sen d i t
by reg i st e re d mail to the clerk t h ereo f for filing. (20,
R24)
Sec. 21 . Notice of filing. — The officer t aki n g the

d e p o s i t i o n shall give p romp t n ot i c e of its fi ling to
all the p art i es. (21 , R24)
Sec. 22. Furnishing copies. — Upo n p a y m e n t of

rea sonabl e c h a r g e s t h e r e f o r , the o f f i c e r sh a l l
fu rn i sh a cop y of the d e p o s i t i o n to an y part y or to
the d e p on e n t . (22 , R24)
Sec. 23. Failure to attend of party giving notice. —

If the part y gi vi n g the n oti ce of the t aki n g of a d epo •
si t i o n fails t o at t en d an d p roc e e d t h e re w i t h an d
an ot h e r at t e n d s in p erso n or by cou n s e l p u rsu an t
t o the not i ce , the cou rt ma y ord er the part y gi vi n g
356
RUL E 23 D E P O S I T I O N S P E N D I N G AC TIO N S E C S . 2 4 -2 6
the noti ce to pay suc h ot h er party the amou n t of

the rea s on a b l e e xp e n s e s i n cu rred by hi m and his
counse l i n s o attending , includin g rea sonab l e
att orn ey' s fees. (23a, R24)
Sec. 24. Failure of party giving notice to serve sub•

poena. — If the party gi vi n g the noti ce of the t aki n g
of a d ep o si t i o n of a w i t n es s fails to serve a su b p oen a
upo n hi m and the wi t n es s b ecau se of suc h failure
doe s not at t end , and i f an ot h e r party at t en d s in
p erso n or by cou n se l b ecau s e he exp ect s the d epo•
si ti on of that wi t n e s s to be t aken , the cou rt ma y
order the party gi vi n g the n ot ice to pay suc h ot her
p a rt y the a m o u n t o f the r e a s o n a b l e e x p e n s e s
i n cu rred by hi m and his cou n se l in so at t en d i n g ,
i n c l u d i n g re as on a b l e att orn ey' s fees. (24a, R24)
Sec. 25. Deposition upon written interrogatories;

service of notice and of interrogatories. — A p art y
d esi ri n g to tak e the d ep o si t i o n of any p erso n upo n
w ri t t e n i n t e r r o g a t o r i e s sh a l l s e rv e t h e m u p o n
every oth e r party wit h a n oti ce st at in g the nam e
and ad d res s of the p e rso n wh o i s to an swe r t h e m
and the nam e or d esc ri p t i ve tit le and add res s of the
officer before wh o m the d ep osi t i o n i s to be t aken.
Within te n (10) day s th ereaft er, a party so served
ma y serv e c r o s s - i n t e r r o g a t o r i e s u po n the p art y
p rop o si n g to take the d ep osi t i on. Within five (5)
d ay s t h e re a f t e r , the lat t e r ma y serv e r e - d i re c t
i n t e r r o g a t o r i e s u p o n a p art y wh o ha s s e rv e d c ro s s-
i n t e rro g at o ri e s. Within th ree (3) days after b e i n g
s e r v e d wi t h re - d i r e c t i n t e r r o g a t o r i e s , a party ma y
serve rec ro s s - i n t e rro gat o ri e s upo n the party
p rop o si n g to take the d ep osi t i on . (26, R24)
Sec. 26. Officers to take responses and prepare

record. — A cop y of the n oti c e an d cop i e s of all
357
RUL E 23 R E M E D I A L LAW COMPENDIU M S E C S . 2 7 -2 9
i n t e r r o g a t o r i e s se rve d shal l b e d e li v e re d b y
the p a rt y t a k i n g the d e p o s i t i o n t o the of fi ce r
d e s i g n a t e d i n the n o t i c e , wh o s h a l l p r o c e e d
p romp t ly, in the man n er p rovi d ed by sect i on s 17,
19 and 20 of thi s Rule, to take the t est i m on y of the
w i t n e s s in re sp on s e to the i n t erro g at o ri e s and to
p re p a re , certi fy, an d file or mai l the d e p o s i t i o n ,
a t t a ch i n g t h e re t o the cop y o f the not i c e an d the
i n t e rro g at o ri e s re cei ve d by him. (26, R24)
Sec. 27. Notice of filing and furnishing copies. —

Whe n a d ep os i t i o n upo n i n t e r rog at o r i e s i s filed, the
officer t aki n g i t shall p ro mp t ly give n ot ice th ereo f
to all the p art i es, and ma y fu rn i sh cop i e s to th e m
o r t o the d e p o n e n t u po n p a y m e n t o f re a s o n a b l e
ch arge s t h ere fo r. (27, R24)
Sec. 28. Orders for the protection of parties and

deponents. — After the se rvi ce of the i n t e rro ga t o ri e s an
d p ri o r t o the t a k i n g o f the t e s t i m o n y o f the d e p o n e n t
, the C o u rt i n w h i c h the a c t i o n i s p en d i n g , on
mot i o n p romp t l y mad e by a p art y or a d e p o n en t , and
for good cau s e sh own , ma y mak e an y ord e r s p e c i f i e
d in s e c t i o n s 15, 16 an d 18 of t hi s Rule wh i c h i s
ap p rop ri a t e an d jus t or an ord er that the d e p o s i t i o n
shall not be t ake n before the officer d es i g n a t e d in the
n ot i c e or that i t shall not be t ake n exc ep t upo n oral
e xa m i n a t i o n . (28a, R24)
Sec. 29. Effect of errors and irregularities in

depositions. —
(a) As to notice. — All errors and i rre gu la ri t i e s
in the n oti c e for t a k i n g a d e p o s i t i o n are wai v e d u n les
s w ri t t e n ob j ect i o n i s p romp t l y serve d upo n the
p art y gi vin g the n ot i ce.
358
RUL E 23 DEPOSITION S P E N D I N G AC T I O N SE C . 2 9
(b) As to disqualification of officer. — O bject i on

to t aki n g a d ep o si t i o n b ecau s e of d i sq u a li f i c at i on
of the officer before wh o m i t i s to be t ake n i s wai ve d
u n le s s mad e before the t aki n g o f the d e p o s i t i o n
b egi n s or as soon t h erea ft e r as the d i sq u a li f i c at i on
b e co me s know n o r coul d b e d i s co v e re d wit h
re a son ab l e d i li gen c e.
(c) As to competency or relevancy of evidence. —
O b j ect i on s to the c o m p et e n c y of a wi t n e s s or the
co mp et en c y , re le va n c y , or mat eri a li t y of t est i mon y
are not wai ve d by failu re to mak e t h e m before or
d u ri n g the t a k i n g o f the d e p o s i t i o n , u n l e s s the
grou n d of the obj ect i on i s on e wh i c h migh t hav e
been ob vi at ed or remov e d i f p re se n t e d at that time.
(d) As to oral examination and other particulars. —
E r r o r s an d i r r e g u l a r i t i e s o c c u r r i n g a t the
ora l e x a m i n a t i o n i n the m a n n e r o f t a k i n g the
d ep o s i t i o n , in the form of the q u est i on s or an sw e rs ,
in the oat h or af fi rm at i on , or in the c o n d u c t of the
p art i es and errors of any kind wh i c h migh t be
ob vi at ed, removed , or cured i f p romp tly p rosecu t ed ,
are wai ve d u n le s s re as on ab l e ob ject ion t h eret o i s
made at the t aki n g of the d ep osi t i on .
(e) As to form of written interrogatories.— Objec•
t i o n s t o the fo r m o f w r i t t e n i n t e r r o g a t o r i e s
s u b m i t t e d UNDER sect i on s 26 and 26 of thi s Rule
are wai ve d u n les s served in wri t i n g upon the party
p r o p o u n d i n g t h e m w i t h i n the tim e a l l o w e d for
se rvi n g s u c c e e d i n g cross or ot her in t e rro gat o ri e s
and wi t h i n t h ree (3) day s after servi ce of the last
i n t e rro g at o ri e s au t h ori zed .
(f) As to manner of preparation. — Errors and
i rregu la ri t i es in the man n er in wh ic h the t e st i mo n y
i s t ran sc ri b ed or the d ep osi t i o n i s p rep ared, si gn ed ,
ce rt i fi ed , seal ed , i n d o rs ed , t ra n s m i t t e d , filed, or
ot h e rw i s e d ealt wit h by the officer u nd er sect i on s
359
RUL E 24 R E M E D I A L LA W C O M P E N D I U M SE C . 2 9
17, 19, 20 to 26 of thi s Rule are wai ve d u n les s a mo•

tion to su p p res s the d ep os i t i o n or som e part t h ereo f
i s mad e wit h re a s o n a b l e p r o m p t n e s s aft er su c h
defect is, or wit h du e d i li ge n c e mi gh t hav e b een , as•
ce rt ai n ed . (29a, R24)
360
RUL E 2 4
D E P O S I T I O N S BE F O R E ACT I O N
O R P E N D I N G AP P E AL
S e ct io n 1. Depositions before action; petition. — A

p e r so n wh o d e s ir e s t o p e r p e t u a t e hi s ow n t e st i mo n y
o r t hat o f a n o t h e r p e r s o n r e g a r d i n g an y m a t t e r t hat
ma y b e c o g n i z a b l e i n an y C o u r t o f t he P h i l i p p i n e s ,
ma y file a ver i f ie d p e t it io n in t he C o ur t of t he p lac e
o f t he r e s i d e n c e o f an y e x p e c t e d a d v e r s e p a r t y ,
( la , R134 )
Sec . 2. Contents of petition. — The p e t i t io n sha l l

b e e n t i t l e d i n t he n a m e o f t he p e t i t i o n e r an d shal
l s ho w : (a) t ha t t he p e t it i o n e r e xp e ct s t o b e a p ar t y t
o a n a ct io n i n a Co u r t o f t he P h i l i p p i n e s bu t i s
p r e s e n t l y u n a b l e t o br i n g i t o r c a u s e i t t o b e b r o u g h t
; (b) t he s u b j e c t m a t t e r o f t he e x p e c t e d act io n an d
hi s i nt e r e s t t he r e i n ; (c) t he fact s whi c h h e d e s i r e s t
o e st a b l i s h b y t he p r o p o s e d t e s t i m o n y an d hi s
r e a s o n s fo r d e s i r i n g t o p e r p e t u a t e it ;
(d) t he na m e s o r a d e s c r i p t i o n o f t he p e r s o n s h e
e xp e c t s will b e a d v e r s e p a r t ie s an d t he i r a d d r e s s e s
s o far a s k no w n ; an d (e) t he na me s an d a d d r e s s e s o f
t he p e r s o n s t o b e e x a m i n e d an d t he s u b s t a nc e o f
t he t e s t i m o n y w h i c h h e e x p e c t s t o e l i c i t fr o m
eac h , an d shal l as k for a n o r d e r a u t h o r i z i n g t he pe •
t it io ne r t o t ak e t he d e p o s it io n s o f t he p e r s o n s t o b e
e xa m i n e d n a m e d i n t he p et it io n for the p u r p o s e o f
p e r p e t u a t i n g t he i r t e s t i mo n y . (2, R134)
Sec. 3. Notice and service. — The p e t it io n e r sha l l s e r v

e a no t i c e u p o n eac h p e r s o n n a m e d i n t he pet it io n a
s a n expe ct e d a d ve r s e part y , t o g e t he r wit h a copy of
t he p et it io n , s t at i n g t hat the p e t i t i o n e r will app l y t o
t he co urt , a t a t im e an d plac e na me d
361
t h e re i n , for the ord e r d e s c ri b e d i n the p e t i t i o n .

A t leas t t w e n t y (20) day s b efore the dat e o f the
h e a ri n g , the Cou rt sh al l cau s e n ot i c e t h e re o f t o
be serve d on the p art i es and p ro sp ect i v e d e p o n e n t s
i n the m a n n e r p rovi d e d for se rvi c e o f s u m m o n s . (3a,
R134)
Sec. 4. Order and examination. — If the cou rt is

sati sfi ed that the p e rp et u at i o n of the t e s t i m o n y ma y
p re ve n t a fai lu re or d ela y of j u st i ce , i t sh all mak e
a n ord e r d e s i g n a t i n g o r d e s c r i b i n g the p e r s o n s
wh os e d e p o s i t i o n ma y b e t ake n an d sp e ci f yi n g the
su b j ect mat t e r o f the e xa m i n a t i o n , an d w h et h e r the
d e p o s i t i o n s shall b e t ake n upo n oral e xa m i n a t i o n
o r w ri t t e n i n t e rro g a t o ri e s . The d e p o s i t i o n s ma y
t he n be t ake n in a c c o rd a n c e wit h Rul e 23 before
the h eari n g . (4a, R134)
Sec. 5. Reference to court. — For the p u rp o s e of

a p p l y i n g Rul e 23 to d e p o s i t i o n s for p e rp e t u a t i n g
t e s t i m o n y , eac h re fe re n c e t h e rei n t o the Cou rt i n
w h i c h the act i o n i s p e n d i n g sh al l b e d e e m e d t o
refer t o the Cou rt i n wh i c h the p et i t i o n for su c h
d e p o s i t i o n wa s filed. (5a, R134)
Sec. 6. Use of deposition.— If a d ep o si t i o n to per•

p et u at e t e s t i m o n y i s t ake n UNDER thi s Ru le, or if,
a l t h o u g h no t so t aken , i t wou l d be a d m i s s i b l e in
e v i d e n c e , i t ma y b e u se d in an y acti o n i n vo l v i n g
the sam e su b j ec t mat t e r s u b s e q u e n t l y b rou gh t i n
a c c o rd a n c e wit h the p rovi s i on s of se ct i o n s 4 an d 5
of Ru le 23. (6a, R134)
Sec. 7. Depositions pending appeal. — If an

ap p eal ha s bee n t ake n from a j u d g m e n t of a court,
i n c l u d i n g the Court of Ap p eal s in p rop e r case s , or
b efo r e the t a k i n g o f d e p o s i t i o n s o f w i t n e s s e s t o
362
RUL E 2 4 D E P O S I T I O N S B E F O R E ACT IO N SECS . 1-7
O R P E N D I N G A P P E AL
p erp et u at e th ei r t est i m on y for use in the even t of

further p ro ce ed i n g s in the said court. In suc h case
the party wh o d esi re s to p erp et u at e the t est i m on y
may mak e a mot i o n in the said court for leave to
tak e the d e p o s i t i o n s , up o n the sam e n ot i c e an d
se rvi ce t h ereo f as i f the acti on wa s p en d i n g t h erei n .
The mot ion shall state (a) the name s and a d d re s se s
of the p erson s to be exa mi n e d and the su b st an c e
o f the t e st i m o n y wh i c h h e exp e ct s t o eli ci t from
each ; an d (b) the re a s o n for p e r p e t u a t i n g t h ei r
t est i mon y. I f the cou rt finds that the p e rp et u at i o n
of the t e s t i m o n y i s p rop e r to avoi d a fai lu r e or
d ela y o f j u st i c e , i t ma y mak e a n ord e r a l l o w i n g
the d e p o s i t i o n s t o b e t aken , an d t h e r e u p o n the
d e p o s i t i o n s ma y b e t a ke n an d use d i n the sam e
m a n n e r an d U N D E R the sam e c o n d i t i o n s a s ar e
p re sc ri b ed in th es e Ru les for d ep o si t i on s t ake n in
p en d i n g act i on s. (7a, R134)
NOTES
1. This was formerly Rule 134 and has been t rans•

posed here. As dist inguished from depositions de bene esse
which are governed by Rule 23, this Rule regulat es the
t aking of deposit ions in perpetuam rei memoriam, the pur•
pose of which is to perpet uat e the test imony of wit nesses
for probable use in a future case or in the event of furt her
proceedings in t he same case. For other ways of perpetu•
at ing test imony in criminal cases, see Secs. 12, 13 and 15
of Rule 119 and the notes t hereunder.
2. Sec. 1 is the procedure for perpet uat ing testimony
of wit nesses prior to the filing of the case and in ant icipa•
tion thereof. Sec. 7 is the procedure in per pet uat ing
test imony after judgment in the Regional Trial Court and
before it has become executory or during the pendency
of an appeal therefrom.
363
3. It is submit t ed t hat Sec. 1 may not be availed of

in criminal cases, but the procedure in Sec. 7 is available
in all actions, including cr iminal cases.
4. Alt hough t here is no local jur ispr udence on the
mat t er, it is also submit t ed t hat deposit ions in perpetuam
rei memoriam under this Rule, just like any other deposi•
tions, are t aken condit ionally and to be used at the trial
or proceeding only in case the deponent is not available.
This view appear s to be sust ained by the fact t hat under
Sec . 6 of t hi s Ru le , d e p o s i t io n s in perpetuam rei
memoriam may be used in the action in accordance with
the provisions of Secs. 4 and 5 of Rule 23 which provide,
inter alia, for sit uat io ns wher ein the deponent cannot
testify as a wit ness dur ing t he t rial.
5. Deposit ions t aken under this Rule do not prove

the exist ence of any r ig ht and the t est i mo ny t her e i n
perpet uat ed is not in itself conclusive proof, eit her of the
exist ence of any right nor even of the facts to which they
relat e, as i t can be cont rovert ed at the t r ial in the same
ma nner as t hough no per pet uat io n of t est imony was ever
had (Alonso, et al. vs. Lagdqmeo, 7 Phil. 75). However,
in the absence of any objection to the t aking t hereof and
even if the depo nent did not testify at the hear ing of the
case, the perpet uat ed test imony const it ut es prima facie
proof of the facts referred to in his deposit ion (Rey vs.
Morales, 35 Phil. 230).
364
RULE 25
INTERROGATO RIES TO PARTIES
S ect i o n 1. Interrogatories to parties; service thereof.

— Und er the same con d i t i on s sp eci fi ed in sect i o n 1
of Rule 23, an y party d esi ri n g to elici t mat e ri al and
re levan t fact s from an y ad vers e p art i es shall file
and serve upo n the latter w ri t t en i n t e rro gat o ri e s
to be an sw e re d by the party served or, i f the party
s e r v e d i s a p u b l i c or p ri v a t e c o r p o r a t i o n or a
p a rt n e rs h i p or as so ci at i o n , by any officer t h ereo f
c o m p e t e n t to t est i fy in its behalf, (la )
Sec. 2. Answer to interrogatories. — The i nt er •

rogat o ri e s shall be an sw e re d fully in wri t i n g and
shall be si gn e d an d swor n to by the person maki n g
t hem . The part y upo n wh o m the i nt e rro gat o ri e s
have bee n serve d shall file and serve a copy of the
an sw e r s on the party su b m i t t i n g the i n t errogat o •
ries wi t h i n fifteen (15) days after servi ce thereof,
u n le s s the cou rt , o n mot i o n an d for goo d cau s e
sh own , ext en d s or sh ort en s the time. (2a)
Sec. 3. Objections to interrogatories. — Objections

t o an y i n t e r ro g a t o ri e s ma y b e p r e s e n t e d t o the
court wi th i n ten (10) days after se rvi ce thereof, with
notice as in case of a mot ion; and an s we r s shall be
d eferred unt i l the ob j ect i on s are re s olved , wh i c h
shall be at as early a time as is p ract icab le. (3a)
Sec. 4. Number of interrogatories. — No p art y

may, wi t h ou t leave of court, serve more tha n one
set of i n t e rro gat o ri e s to be an swere d by the same
party. (4)
365
Sec. 6. Scope and use of interrogatories. — Inter•

rog at o ri e s ma y relat e to an y mat t er s that ca n be
i n q u i re d int o UNDER sect i o n 2 of Rule 23, and the
a n s w e r s ma y be use d for the sam e p u rp o se s pro•
vid e d in sect i o n 4 of the sam e Rule. (5a)
NOTES
1. Jus t like deposit ions, a part y may serve wr it t en

int errogat or ies to the ot her part y wit hout leave of court
only after answer has been served. Before that , leave of
court must be obt ained. Under the same consider at ions,
int errogat or ies may embrace any relevant mat t er unless
the same is (a) privileged or (b) prohibit ed by court order.
2. A judgment by default may be rendered against

a p a r t y wh o fails t o ser v e hi s a n s w e r t o w r i t t e n
int errogat or ies (Cason vs. San Pedro, L-18928, Dec. 28,
1962; see Sec. 3fcJ, Rule 29).
3. . After ser vice of the a nswer , leave of court

is not required for the service of writ t en int errogat or ies
upon a part y {Arellano vs. CFI of Sorsogon, et al., L-
34897, July 15, 1975).
4. The libert y of a part y to make discovery is well-
nig h u n r e s t r i c t e d i f the m a t t e r s inq u ir e d int o ar e
ot herwise relevant and not privileged, and the inquir y is
made in good fait h and wit hin the bounds of law. In light
of t he general philosophy of full discovery of relevant facts,
it is fairly rare t hat it will be ordered t hat a deposit ion should
not be t aken at all. It is only upon notice and good cause
shown t hat the court may order t hat a deposit ion sha ll not
be t aken . Good cause mean s a su bst a nt i a l reaso n — one
t hat affords a legal excuse. The mat t er of good cause is to
be det er mined by the court.
The fact t hat a part y had previously availed of a mode
of discovery, which is by wr it t en int errogat ories, cannot
be considered as good cause to pr event his resort to a
366
RULE 25 INTERROGATORIE S T O PARTIE S SE C . 6
deposit ion on oral examinat io n because: (a) the fact t hat

informat ion similar to t hat sought had been obtained by
answers to int errogat ories does not bar an examinat io n
before trial, and is not a valid objection to the t aking of a
deposit ion in good faith, t here being no duplicat ion; and
(b) knowledge by t he pet it ioner of the facts concerning
which the proposed deponent is to be examined does not
justify refusal of such examinat io n. The var ious modes
of discovery under the Rules are clearly int ended to be
cumulat ive, and not alt er nat ive or mut ually exclusive
(Fortune Corporation vs. CA, et al., G.R. No. 108119,
Jan. 19, 1994).
Sec. 6. Effect of failure to serve written interrogato•

ries. — U n l e s s t h e r e a f t e r a l l o w e d by the Cou rt
for good cau s e sh ow n and to p reven t a failu re of
j u st i ce, a party not served wit h wri tt en i nt erroga•
t ori es ma y not be comp el led by the ad verse party
t o gi v e t e s t i m o n y i n op e n c ou rt , o r t o gi v e a
d ep o s i t i o n p en d i n g app eal, (n)
NOT E
1. To under score the import ance and significant

benefit s of discovery procedures in t he adjudicat ion of
cases, this new provision encourages the use of writ t en
int errogatories by imposing prejudicial consequences on
the part y who fails or refuses to avail himself of wr it t en
int errogatories wit hout good cause. A similar provision
has been incor por at ed in t he succeeding Rule 26 for non-
availment of request s for admission by the opposing part y.
These two provisions are directed to the part y who fails
or refuses to resort to the discovery procedures t herein, and
should not be confused with the provisions of Rule 29
whic h pr o v id e s for s a nc t io n s or ot he r consequences
upon a part y who refuses or fails to comply with d isco ver y
p r o c e d u r e s duly a va i le d of by his opponent.
367
Where a part y unjust ifiedly refuses to elicit facts

mat er ial and relevant to his case by addressing wr it t en
int errogatories to the adverse part y to elicit those facts,
the latt er may not t hereaft er be compelled to testify thereon
in court or give a deposit ion pending appeal. The just ifi•
cation for t his is t hat the part y in need of said facts hav•
ing foregone the opport unit y to inquire into the same from
the ot her part y t hrough means available to him, he should
not t hereaft er be per mit t ed to unduly burden the lat t er
wit h courtroom appear ances or ot her cumberso me pro•
cesses. The sanct ion adopt ed by the Rules is not one of
compulsion in t he sense t hat the part y is being directly
compelled to avail of the discovery mechanics, but one of
negat ion by depriving him of evident iar y sources which
would ot herwise have been accessible to him.
368
RUL E 26
AD M I S S I O N BY ADVE RS E PARTY
S e ct io n 1. Request for admission. — At an y t im e

aft e r is su e s hav e bee n jo i ne d , a p a r t y ma y file an d
ser v e upo n an y o t he r p ar t y a w r it t e n r e q u e s t for
t he a d m i s s io n b y t he lat t e r o f t he g e n u i n e n e s s o f an
y m a t e r i a l an d r e l e v a n t d o c u m e n t d e s c r ibe d i n an d
e x h i b it e d w it h t he r e q u e s t o r o f t he t r ut h o f an y
m a t e r i a l a n d r e l e v a n t m a t t e r o f fac t se t fo r t h i
n t he r e q u e s t . Co p ie s o f t he d o c u m e n t s sha l l b e
d e l i ve r e d wit h t he r e q u e s t u n le s s co pie s ha v e
a lr e a d y bee n fu r n i s he d , ( la )
Sec. 2. Implied admission. — E ac h of t he m a t t e r s

o f w hic h a n a d m i s s io n i s r e q u e s t e d shal l b e d e e me d
a d m it t e d u n le s s , w it h i n a p er io d d e s i g na t e d i n t he
r e q u e s t , w hic h s ha l l no t b e less t ha n fift een (15)
day s a ft e r ser v ic e t her eo f, o r w it hi n suc h fu r t he r
t im e a s t he Co u r t ma y a llo w o n mo t io n , t he p a r t y t o
who m t he r e q u e s t i s d ir e c t e d files an d ser ve s upo n
the p a r t y r e q u e s t i n g t he a d m is s io n a swor n st at e •
m e n t e i t h e r d e n y i n g s p e c i f i c a l l y t he m a t t e r s o f
whic h a n a d m i s s io n i s r e q u e s t e d o r s et t in g fo rt h i n
det ai l t he r e a s o n s wh y h e c a n no t t r ut hfu l l y e it he r
ad m i t o r den y t ho s e m a t t e r s .
O bje ct io n t o an y r e q u e s t for a d m i s s io n s ha l l b e
s u b m i t t e d t o t he C o u r t b y t he p a r t y r e q u e s t e d
w it h in t he per io d for an d pr io r t o t he filing o f hi s s wo r
n s t a t e m e n t a s c o nt e m p l a t e d i n the p r e c e d i n g
p a r a g r a p h an d hi s c o mp l i a n c e t h e r e w i t h shal l b e
de fe r r e d u nt i l suc h o bje ct io n s ar e r e so lve d , w hic h
r e s o l u t i o n sha l l b e ma d e a s ear l y a s p r a c t ic a b l e .
(2a)
369
RUL E 26 R E M E D I A L LAW COMPENDIU M S E C S . 1-3
Sec. 3. Effect of admission. — An y a d m i s s i o n

mad e by a party p u rsu an t to suc h req u es t is for the
p u rp os e of the p e n d i n g act i o n only and sh all not
c o n s t i t u t e a n a d m i s s i o n b y hi m for an y o t h e r
p u rp os e nor ma y the sam e be use d agai n s t hi m in
an y oth e r p roc ee d i n g . (3)
NOTES
1. Rule 26, as a mode of discovery, co nt emp lat es

int errogat or ies seeking clarification in order to det ermine
the t rut h of the a llegat io ns in a pleading. A request for
admissio n should not merely reproduce or reit er at e the
allegat io ns of the request ing part y' s pleading but should
set forth relevant evident iar y mat t er s of fact, or documents
descr ibed in and exhibit ed wit h the r equest , for t he
pur po se of est ablis h ing t he part y' s cause of act ion or
defense. On the ot her hand, the adver se part y should
not be co mp e l le d to ad mi t m a t t e r s of fact a lr e a d y
admit t ed in his pleading and concerning which t here is no
issue, nor should he be r equir ed to make a second denial of
those mat t er s already denied in his answer to the
complaint (Po vs. CA, et al., L-34341, Aug. 22, 1988; Briboneria
vs. CA, et al., G.R. No. 101682, Dec. 14, 1992).
2. . Sec. 1 of t hi s Rule, as a m e nd ed ,
specifically r equ ir e s t hat t he facts so ught to be
ad m it t e d by t he adver se part y must be both mat er ia l
and relevant to the issu e s in the case. The sam e
r e q u i r e m e nt s of bot h mat er ialit y and relevancy have
likewise been specified in t he preceding Rule 25 on
r equest s for admission. This must be so since the fact in
quest ion may be relevant if it has a logical t endency to
prove a factual mat t er in the case but it may be
immat er ial if t hat factual mat t er is no longer in issue,
and vice-versa.
3. Sec. 2 now co nt ains a second p ar a g r a p h wit h

detailed provisions on objections to request s for admission,
as well as the effects and disposit ion thereof.
370
RUL E 26 A D M I S S I O N B Y A D VE R S E P ART Y SE C . 4
4. Where t he plaint iff failed to answer a request for

admission filed under t his Rule, based on its allegat ions
in its original complaint, the legal effects of its implied
admission of the facts st at ed in the request cannot be set
aside by its subsequent filing of an amended complaint.
It should have filed a mot io n to be r elieved of the
consequences of said implied admission (Bay View Hotel,
Inc. vs. Ker & Co., Ltd., et al., L-28237, Aug. 31, 1982).
5. Where a copy of the request for admission was

served only upon the counsel of the party so request ed,
it was held t hat t here was insufficient compliance with
Rule 26. The general rule t hat notices shall be served on
the counsel of a part y cannot apply where the Rules
expressly provide t hat it should be served upon a definite
person. Sec. 1 of this Rule provides t hat the request for
admissio n should be served on the party to whom the
request is direct ed. Hence, the request for admission
was not validly served and t hat part y cannot be deemed
to have ad m it t e d the t r ut h of t he mat t er s of which
admissio ns were r equest ed (Duque vs. CA, et al. and
Valenzuela, etc., et al. vs. CA, et al, G.R. No. 125383,
July 2, 2002).
6. However, an answer to a request for admission

properly served, which was signed and sworn to by the
counsel of the part y so request ed, is sufficient compliance
with this Rule, especially in light of counsel's aut horit y
under Secs. 21 and 23, Rule 138 (Lahada vs. CA, et al,
G.R. No. 102390 and Nestle Philippines, Inc., et al. vs.
CA, et al, G.R. No. 102404, Feb. 1, 2002).
Sec. 4. Withdrawal. — The cou rt may allow the

p a rt y m a k i n g a n a d m i s s i o n U N D E R t h i s R u l e ,
wh et h e r exp res s or i mp li ed, to wit h draw or amen d
i t upo n suc h t erm s as may be just. (4)
371
Sec. 6. Effect of failure to file and serve request for

admission. — Un les s o t h e rw i s e allowe d by the cou rt
for good cau s e sh ow n and to p reven t a failu re of
j u st i ce , a party wh o fails to file and serve a req u es t
for a d m i s s i o n o n the a d v e r s e p art y o f m at e ri a l
and re levan t fact s at issu e wh i c h are, or ou gh t to
be, w i t h i n the p e rs o n a l k n o w l e d g e o f the lat t e r, sh a l
l no t b e p e r m i t t e d t o p r e s e n t e v i d e n c e o n suc h
fact s, (n)
NOT E
1. See the similar provision on unjust ified failure of

a part y to avail of wr it t en int errogat or ies as a mode of
discovery and the sanct ion therefor under Sec. 6 of Rule
25. The reaso n for t hese new provisions is explained in
the note t her eund er . In Sec. 6 of Rule 25, the sanct ion
consist s in allowing t he adver se part y to refuse to give
t est imony or make a deposit ion on appeal respect ing the
facts involved. Under t his section of the Rule on request
for admission, the part y who fails or refuses to request
the admissio n of the facts in quest ion is himself prevent ed
from t her e a ft e r pr e se nt i n g evidence t her eo n . In bot h
cases, the court shall det er mine on a case to case basis
whet he r or not the no n- availme nt of the two modes of
discovery was just ified or the negat ive sanct io ns will
unjust ly prejudice the err ing part y.
372
RULE 27
PRO DUCTIO N OR INS PECTION

OF DO CUM ENTS OR THINGS
S e c t i o n 1. Motion for production or inspection;

order. — Upo n mot i o n of an y party sh o w i n g good
cau s e t h e re f o r , the Cou rt i n wh i c h a n act i o n i s
p e n d i n g ma y (a) ord er an y party to p rod u c e and
p e r m i t the i n s p e c t i o n an d c o p y i n g o r p h o t o •
g ra p h i n g , b y o r o n b eh a l f o f the m o v i n g p art y ,
o f an y d e s i g n a t e d d o c u m e n t s , p a p e r s , b o o k s ,
ac cou n t s , let ters, p h ot og rap h s , ob ject s or t an gi b le
t h i n gs, not p ri vi leged , wh i c h con st i tut e or con t ai n
e v i d e n c e mat e ri a l t o an y mat t e r i n volve d i n the
act i o n an d wh i c h are i n hi s p o s s e s s i o n , cu st o d y
or control; or (b) order an y party to p ermit en t ry
u p o n d e s i g n a t e d land o r ot h e r p ro p e rt y i n hi s
p o ss e s si o n or con t ro l for the p u rp ose of in sp ect i n g ,
m e a s u r i n g , s u r v e y i n g , o r p h o t o g r a p h i n g the
p ro p e r t y o r an y d e s i g n a t e d r e l e v a n t ob j ec t o r
o p e ra t i o n t h e re o n . The ord e r sh al l sp eci f y the ti me,
p lace and man n er of maki n g the in sp e ct i o n an d
t a k i n g c o p i e s an d p h o t o g r a p h s , an d ma y p resc ri b e
suc h t erm s and c o n d i t i o n s a s are just, (la)
NOTES
1. . The p r o d u c t io n of do c u me nt s affords
more opport unit y for discovery t han a subpoena duces
tecum as, in the lat t er, the documents are brought to the
court for the first t ime on the dat e of the scheduled
t r ial wherein such document s are required to be
produced. The inspect ion of land and other real
propert y for the purposes aut horized by this Rule also
avoids the need for ocular inspection thereof by the court.
373
2. . In cr imina l cases, mo t io ns for product io n

or inspect ion of document s are governed by Sec. 10,
Rule 116, and may be availed of only by t he accused
generally dur ing t he pendency of the case for trial.
3. This mode of discovery does not aut hor ize the

opposing part y or the clerk or ot her funct ionaries of the
court to dist rain the art icles or deprive the per son who
produced the same of t heir possession, even t emporar il y
(Tanda vs. Aldaya, 89 Phil. 497).
4. In motions for product ion of document s under this

Rule, it has been held t hat " a part y is ordinar ily ent it led
to the product ion of books, document s and papers which
are mat er ial and relevant to the est ablishme nt of his cause
of act ion or defense" [General Electric Co. vs. Superior
Court in and for Almeda County, 45 C 2d 879, cited in
Martin, Rules of Court, 3rd edition, Vol. 2, p. 104]. "The
t est to be applied by the t r ial judge in det er mining the
r e le va nc y of do c u me nt s an d the sufficiency of t he i r
descr ipt ion is one of r easo nableness and pract icabilit y"
[Line Corp. of the Philippines vs. Moran, 59 Phil. 176,
180). "On the ground of public policy, the rules providing
for product ion and inspect ion of books and paper s do not
a u t ho r iz e the pr o duct io n or inspect io n of pr ivi leg ed
mat t er, t hat is, books and papers which because of t heir
confident ial and privileged charact er could not be received
in evidence" [27 CJS 224]. "In passing on a motion for
discovery of do cument s, t he court should be liberal in
det er mining whet her or not document s are relevant to the
subject mat t er of the action" [Hercules Powder Co. vs. Haas
Co., U.S. Dist. Crt., Oct. 26, 1944; 9 Fed. Rules Service,
659, cited in Moran, Comments on the Rules of Court, 1979
Ed., Vol. 2, p. 102). Likewise, "any st at ut e declar ing in
general t er ms t hat official records are confident ial should
be liberally construed, to have an implied except ion for
disclosure when needed in a court of just ice" [Wigmore on
Evidence, Vol. VIII, p. 801, cit ing t he case oiMarbury vs.
374
RUL E 2 7 P R O D U C T I O N OR I N S P E C T I O N SE C . 1
OF DOCUM ENT S OR THING S
Madison, 1 Cr. 137, 143] (Banco Filipino vs. Monetary

Board, et al., G.R. No. 70054, July 8, 1986).
5. In an American case, it was held t hat the court
can compel the plaintiff, under this Rule, to consent to
the exhu mat io n of the body of the deceased in a case
involving the "accidental deat h" clause of an insurance
polic y (Zalatuka vs. Metropolitan Life Ins. Co.,
U.S.C.C.A., Dec. 22, 1939, 108 F. [2d] 405, 2 Fed. Rules
Service, p. 37).
It is believed t hat the aforest at ed ruling could be
applicable here in a civil case involving the same issue,
considering t hat Sec. 1 of t his Rule also speaks of "objects
or tangible t hings" which is broad enough to include a
cadaver. On the other hand, Rule 28 of the revised Rules
cannot be invoked for the same purpose as it cont emplat es
and is limited to physical and ment al examinat io n of a
living person. There would, however, be no problem if
the exhumat ion or postmortem examinat io n is involved in
and necessary for purposes of a criminal action.
6. Alt hough it is not among the modes of discovery,

but considering the similar it y of objectives sought to be
subserved, note should be t aken of the writ of search and
seizure aut horized for the protect ion of int ellect ual prop•
ert y. In a resolut ion in A.M. No. 02-1-06-SC, dated Janu•
ary 22, 2002, the Supreme Court approved the rule on
Search and Seizure in Civil Actions for Infr ingement of
Int ellect ual Propert y Rights (Appendix Z) which governs
this judicial process, effective February 15, 2002.
375
RULE 28
PHYSICAL AND MENTAL EXAMINATION

OF PERS O NS
S ect i o n 1. When examination may be ordered. — In

an act i o n in wh i c h the men t a l or p h ysi ca l c on d i t i o n
of a p art y i s in con t rov e rsy , the cou rt in wh i c h the
act i o n i s p e n d i n g ma y in its d i s c ret i o n ord er hi m to
su b mi t to a p h ysi ca l or men t a l e x a m i n a t i o n by a
p h y si ci a n . (1)
NO TES
1. The ment al condit ion of a part y is in controversy

in proceedings for guar dianship over an imbecile or insane
person, while the physical condit ion of a part y is generally
involved in physical injuries cases.
2. . A blood g r o u p i n g t es t ma y be o r d e r e d
an d conducted under t his Rule on a child subject of a
pat ernit y suit. While the Rule speaks of an examinat io n
of a part y, such child is considered a part y for purposes
thereof as the act ion is br ought for its benefit (Beach
vs. Beach, U.S.C.A., D.C., June 28, 1940, 3 Fed.
Rules Service,
p. 397).
3. . Since the result s of the examinat ion are

int ended to be mad e public, the sam e ar e not
covered by the phys ic ian- pat ient privilege.
Fur t her mo r e, such exami• nat ion is not necessary to
t reat or cure the pat ient but to assess the ext ent of injur y
or to evaluat e his physical or ment al condit ion.
Sec . 2. Order for examination. — The ord e r for

e xa m i n a t i o n ma y be mad e on ly on mot i o n for good
cau s e s h o w n an d u p o n n ot i c e t o the p art y t o b e
e xa m i n e d an d t o all ot he r p art i es, an d shall sp eci fy
376
RUL E 28 P H Y S I C A L AN D M E N T A L S E C S . 3- 4
E X AM I N A T I O N O F P E R S O N S
the time, place, man n er , con d it i on s and scop e of the

e xa m i n a t i o n and the p erson or p erson s by wh o m i t
is to be mad e. (2)
Sec. 3. Report of findings. — If req u e st e d by the

party exa mi n ed , the party cau si n g the exa m i n at i o n
to be mad e shall d eli ve r to hi m a copy of a d et ai led
wri t t en report of the e xa m i n i n g p h ys i ci a n set t i n g
ou t hi s f i n d i n g s an d c o n c l u s i o n s . Aft e r su c h
r e q u e s t an d d e l i v e r y , the p a rt y c a u s i n g the
e x a m i n a t i o n t o b e mad e sh al l b e e n t i t l e d up o n
req u e st to recei v e from the party exami n e d a like
report of any exa mi n at i on , p revi ou s ly or t h ereaft e r
made of the same men t a l or p h ysi cal con d i t i on . I f
the party exa mi n e d refu ses to d eli ver suc h report,
the cou rt on mot i o n and n ot i ce may make an order
req u i ri n g d eli ve ry on suc h t erms as are just, and i f
a p h ysi ci a n fails or re fu se s to make suc h a report
the cou rt may exclu d e his t est i mon y i f offered at
the trial. (3a)
Sec. 4. Waiver of privilege. — By re q u e s t i n g and

ob t ai n i n g a report of the exa mi n at i o n so ord ered
or by t aki n g the d ep o s i t i o n of the exa mi n e r , the
party exami n e d wai ve s any p ri vi lege he may have
i n t hat act i o n o r an y ot h e r i n v o l v i n g the sam e
c o n t r o v e r s y , r e g a r d i n g the t e s t i m o n y o f eve r y
oth er p erso n wh o ha s exami n e d or may t h ereaft er
e xa m i n e hi m i n re s p e c t o f the sam e m e n t a l o r
p h ysi cal e xa mi n at i o n . (4)
NOT E
1. Where the part y examined requests and obtains

a r epo r t on the r e s u lt s of the e x a m i n a t io n , the
consequences are t hat (a) he has to furnish the other part y
a copy of t he r epo r t of any pr evio us or su bs equ e n t
377
examination of the same physical and mental condition,

and (b) he waives any privilege he may have in that action
or any other involving the same controversy regarding
the testimony of any other person who has so examined
him or may thereafter examine him. For the physician-
patient privilege, see Sec. 24(c), Rule 130 and Note 4
thereunder.
378
RULE 29
RE FUS A L TO COMP LY
WITH MODES OF DISCOVERY
S ect io n 1. Refusal to answer. — If a p ar t y or o t he r

d e p o n e n t r e fu se s t o a n s w e r an y q u e s t io n upo n or a l
e x a m i n a t i o n , t he e x a m i n a t i o n ma y b e co mp l e t e d o n
o t he r m a t t e r s o r a d j o u r n e d a s t he p r o p o n e n t o f t he
q u e s t i o n ma y p r e fe r . The p r o p o n e n t ma y t h e r e •
aft e r appl y t o t he p r o p e r Co ur t o f t he plac e w he r e
t he d e p o s i t i o n i s be i n g t a k e n for a n o r d e r t o co mpe l
a n a n s w e r . The sa m e p r o c e d u r e ma y b e ava i le d o f
whe n a p a r t y or a w it n e s s r e fus e s t o a n s w e r an y
i n t e r r o g a t o r y s u b m i t t e d U N D E R Rule s 2 3 o r 25.
I f t he a p p l i c a t i o n i s g r a n t e d , t he C o u r t sha l l
r e q u i r e t he r e fu s i n g p a r t y o r d e p o n e n t t o a n s w e r
t he q u e s t i o n o r i n t e r r o g a t o r y an d i f i t als o find s
t hat t he r efus a l t o a n s w e r wa s w it ho u t s u b s t a nt i a l
j u s t i f i c a t io n , i t ma y r e q u i r e t he r e fu s i n g p a r t y o r
d e p o n e n t o r t he c o u ns e l a d v i s i n g t he r e fu s a l , o r bot
h o f t he m , t o pa y t he p r o p o n e n t t he a m o u n t o f t he
r e a s o n a b l e e x p e n s e s i n c u r r e d i n o bt a i n i n g t he o r der ,
i n c l u d i n g a t t o r n e y' s fees.
I f t he a p p l i c a t io n i s de n ie d an d the Co ur t finds
t hat i t wa s filed w it ho u t s u b s t a n t i a l ju s t i f i c a t io n ,
the Co ur t ma y r e q u i r e t he p r o p o n e n t o r t he co u ns e l
a d v i s i n g t he filing o f t he a p p l i c a t i o n , o r bot h o f
t he m , t o pa y t o t he r e fu s i n g p ar t y o r d e p o n e n t t he
a m o u n t o f t he r e a s o n a b l e e x p e n s e s i n c u r r e d i n
o p p o s i n g t he a p p l i c a t i o n i n c l u d i n g a t t o r n e y ' s
fees, ( la )
Sec. 2. Contempt of court. — If a p ar t y or o t he r

w it ne s s r efuse s t o b e swo r n o r r efu s e s t o a n s w e r
an y q u e s t io n aft e r be in g d ir e c t e d t o d o s o b y t he
379
cou rt of the place in wh i c h the d e p o s i t i o n i s b ei n g

t aken , the refu sal ma y be con si d e re d a con t e mp t of
that court. (2a)
Sec. 3. Other consequences. — If an y p art y or an

officer or m a n a gi n g agen t of a p arty re fu s e s to obey
a n o rd e r m a d e U N D E R s e c t i o n 1 o f t h i s Ru l e
re q u i ri n g hi m t o an sw e r d e s i g n a t e d q u e s t i o n s , o r
an ord er UNDER Rule 27 to p rod u c e an y d o c u m e n
t o r o t h e r t h i n g fo r i n s p e c t i o n , c o p y i n g , o r
p h o t o g r a p h i n g o r t o p erm i t i t t o b e d on e , o r t o
p ermi t ent r y up o n land o r oth e r p rop e rt y , o r a n
ord er mad e UNDER Ru le 2 6 re q u i ri n g hi m t o sub mit
to a p h ysi ca l or men t a l e xa m i n a t i on , the Cou rt may
mak e su c h ord e r s i n regar d t o the re fu sa l a s are
just, an d amon g ot h er s the followi n g :
(a) A n ord er that the mat t er s re g a rd i n g wh i c h
the q u e s t i o n s w e r e a s k e d , o r the c h a r a c t e r o r
d e s c ri p t i o n of the t h i n g or land, or the c o n t e n t s of
the p ap er, or the p h ysi ca l or me n t a l c o n d i t i o n of
the p art y, o r an y oth e r d e s i g n a t e d fact s shal l b e
t ake n to be e s t a b l i s h e d for the p u rp o s e of the act i o n i
n a c c o r d a n c e wit h the c lai m o f the p art y o b t a i n i n g
the ord er;
(b) An ord e r re f u si n g to allo w the d i s ob e d i e n t
p art y t o s u p p o r t o r o p p o s e d e s i g n a t e d clai m s o r
d e f e n s e s o r p ro h i b i t i n g hi m from i n t r o d u c i n g i n
e v i d e n c e d e s i g n a t e d d o c u m e n t s o r t h i n g s o r i t em s
o f t e s t i m o n y , o r fro m i n t r o d u c i n g e v i d e n c e o f
p h ysi ca l o r men t a l con d i t i on ;
(c) A n ord e r s t ri k i n g ou t p l e a d i n g s o r p art s
t h ereo f, o r s t a y i n g fu rt h e r p r o c e e d i n g s u nti l the
o r d e r i s o b e y e d , o r d i s m i s s i n g t he a c t i o n o r
p r o c e e d i n g o r an y par t t h ereo f , o r r e n d e r i n g a
j u d g m e n t b y d efau l t agai n s t the d i s ob e d i e n t party;
an d
380
RUL E 29 R E F U S A L T O COMPL Y S E C S . 4- 6
WIT H M O D E S O F D I S C O VE R Y
(d) In lieu of an y of the foregoin g orders or in

ad d i t i on t h eret o , an order d i rect i n g the arrest of
any part y or agen t of a party for d i s o b ey i n g any of
such ord er s e xcep t an order to su b mit to a p h ysi cal
or men t a l e xa mi n at i on . (3a)
Sec. 4. Expenses on refusal to admit. — If a party

after b ei n g served wit h a req u es t und er Rule 26 to
admit the g e n u i n e n e s s of any d ocu men t or the truth
of an y mat t e r of fact, serves a sworn denial t h ereo f
an d i f the p a rt y r e q u e s t i n g the a d m i s s i o n s
t h e r e a f t e r p r o v e s the g e n u i n e n e s s o f su c h
d ocu m en t or the t rut h of any suc h matt er of fact,
he ma y ap p ly to the cou rt for an order req u i ri n g
the ot h e r party to pay hi m the reason ab le e xp e n s e s
i n cu rred in maki n g suc h proof, i n clu di n g attorney' s
fees. Un l es s the cou rt finds that t here wer e good
rea son s for the d en i a l or that a d m i s s i o n s sou gh t were
of no su b st ant i a l i mp ort an ce, suc h order shall be
i ssu ed . (4a)
Sec. 5. Failure of party to attend or serve answers.

— If a p art y or an offi cer or m a n a g i n g agen t of
a party wi llfu lly fails to ap p ear before the officer
wh o i s to tak e hi s d ep o si t i on , after b ein g served
with a p rop er n ot ice, or fails to serve an swe r s to
i n t e r r o g a t o r i e s s u b m i t t e d UNDER Rul e 25, after
proper se rvi c e of suc h i nt errogat o ri es , the cou rt on
mot ion and n oti ce, may stri ke out all or any part of
any p lead i n g of that party, or d i smi ss the action or
p ro ce ed i n g or any part thereof, or en ter a j u d gmen t
by defau lt again s t the party, and in its d i scret ion,
order hi m to pay rea son ab l e exp en s e s i n cu rred by
the other, i n c l u d i n g attorney' s fees. (5)
Sec. 6. Expenses against the Republic of the

Philippines. — Exp en se s and attorney' s fees are not
381
RUL E 29 R E M E D I A L LAW COMPENDIU M S E C S . 4- 6
to be i mp ose d upo n the Rep u b li c of the Ph i li p p i n e s

UNDER thi s Rule. (6)
NOT E S
1. Where the plaint iff failed to answer the wr it t en

int errogat or ies for unexplained reasons, dismissal of the
complaint is war r ant ed under Sec. 5, Rule 29 and such
omission may also be considered as failure to prosecute
the act ion (Arellano vs. CFI of Sorsogon, et al., L-34897,
July 15, 1975).
2. The former t it le of t his Rule which read "Refusal

to Make Discovery" has been changed in t his revision in
the int er est of accuracy.
382
RULE 30
TRIAL
S ect i o n 1. Notice of trial. — Upon ent ry of a case

i n the t ri al c a l e n d a r , the cler k sh al l n oti fy the
p art i es of the date of its trial in suc h man n er as shall
en su r e his recei p t of that n ot ice at least five
(5) day s before suc h date. (2a, R22)
NOTES
1. The words "trial" and "hearing" have different

mea ning s and co nno t at io ns. Trial may refer to the
recept ion of evidence and other processes. It embraces
the period for the int roduct ion of evidence by both part ies.
Hearing, as known in law, is not confined to trial but
embraces the several st ages of lit igat ion, including t he
pre-t ria l st age. A hear ing does not necessarily mean
present at ion of evidence. It does not necessarily imply
the pr e se nt at io n of oral or do cume nt ar y evidence in
open court but t hat the parties are afforded the opportunit y
to be hear d (Republic vs. Sandiganbayan, et al.,
G.R. No. 152154, Nov. 18, 2003).
2. As a mat t er of procedural due process, it is now
required t hat the part ies should receive notice of the trial
at least 5 days before the scheduled date. This is int ended
to avoid the usual misunder st andings and failure of the
part ies to appear for trial as the previous rule did not spell
out these mechanics of service.
Sec. 2. Adjournments and postponements. — A

court may ad jou rn a trial from day to day, and to
any st at ed time, as the exp e d i t i ou s and con v en i en t
t ran sact i on of b u si n es s may requi re, but shall have
no powe r to adj ou rn a trial for a longer period tha n
383
on e m o n t h fo r e a c h a d j o u r n m e n t , no r mo r e
tha n th re e mon t h s i n all, excep t whe n au t h o ri ze d
i n w ri t i n g b y the Cou rt A d m i n i s t ra t o r , S u p re m e
Court. (3a, R22)
Sec. 3. Requisites of motion to postpone trial

for absence of evidence. — A m o t i o n to p o s t p o n e a
t ri a l o n the g ro u n d o f a b s e n c e o f e v i d e n c e ca n
b e g r a n t e d on l y u p o n a f f i d a v i t s h o w i n g the
m a t e ri a l i t y an d re l e v a n c y o f su c h e v i d e n c e , and
that du e d i l i g e n c e ha s bee n use d t o p rocu r e it. But
i f the ad ve rs e p art y ad mi t s the facts to be gi ve n in
e v i d e n c e , eve n i f h e obj ect s o r re s e rv e s the ri gh t t o
obj ect to t h ei r ad mi s si b i li t y , the t ri al sh all no t be
p o s t p on e d . (4a, R22) (As corrected by Resolution of the
Supreme Court, dated July 21, 1998)
Sec . 4. Requisites of motion to postpone trial for

illness of party or counsel. — A mot i o n to p ost p on e a
trial on the grou n d of i lln es s of a p art y or cou n s e l
ma y be gran t e d i f i t ap p ear s upo n affi davit or swor m
c e r t i f i c a t i o n th at the p r e s e n c e o f su c h p art y o r
c o u n s e l a t the trial i s i n d i s p e n s a b l e an d that the
c h a ra c t e r o f hi s i l ln e s s i s suc h a s t o ren d e r hi s non-
a t t e n d a n c e e xc u s a b l e . (5a, R22)
NOTE S
1. . P o s t p o n e m e n t s ar e a d d r e s s e d to the
soun d discret ion of the court and, in the absence of grave
abuse of discret ion, cannot be controlled by ma nda mu s
(Olsen vs. Fressel & Co., 37 Phil. 121).
2. The pro vis io ns of Sec. 3 of t hi s Rule are not

applicable to criminal cases as the rule on po st po nement s
in cr imina l cases is governed by Sec. 2, Rule 119 (People
vs. Catolico, L-31261-65, April 20, 1971).
384
RUL E 30 TRIA L SE C . 5
3. A mere medical certificate is generally insufficient.

It must be under oat h or in the form of an affidavit.
However, i t has been held t hat even if the mot ion to
postpone on account of illness was not accompanied by a
medical cert ificate, since not every ailment is att ended to
by a physician and the required medical certificate under
oath could not be obtained wit hin a limited t ime, such
r equir eme nt may be dispensed wit h in the int er est of
just ice (Sarmiento vs. Juan, G.R. No. 56605, Jan. 28,
1983).
Sec. 5. Order of trial. — S u b j e c t to the pro •

vi si on s of sect i o n 2 of Rule 31 , and unle s s the cou rt
for sp eci a l rea son s ot h e rwi s e di rect s, the trial shall
be li mit ed to the i ssu e s stat ed in the pre-trial order
and shall p roceed as follows:
(a) The p l a i n t i f f sh al l a d d u c e e v i d e n c e i n
su p p ort of his comp laint ;
(b) The d e f en d an t shall the n ad du c e eviden c e
in su p p ort of hi s d efen se, cou n t erclai m, cross- clai m
and t hi rd -p arty comp laint ;
(c) The t h i rd - p a rt y d e f e n d a n t , i f any, shal l
a d d u c e e v i d e n c e o f hi s d e f e n s e , c o u n t e r c l a i m ,
cross- clai m and fou rth- part y comp lain t;
(d) The fou rt h- part y, and so forth, if any, shall
ad d u c e evi d en c e of the mat eri al facts p lead ed by
them;
(e) The p a rt i e s a g a i n s t wh o m an y cou n t e r •
clai m or cross- clai m ha s been p lead ed, shall ad du c e
evi d en c e in su p p ort of their d efen se, in the order to
be p rescri b ed by the court;
(f) The p a rt i e s may the n resp ect i ve ly ad d u ce
r e b u t t i n g e v i d e n c e on ly , u n l e s s the cou rt , for
good re a s o n s an d i n the f u rt h e ra n c e o f j u st i c e ,
p e r m i t s t h e m t o a d d u c e e v i d e n c e u p o n t h ei r
original case; and
385
(g) Upo n ad m i s s i o n of the e vi d e n c e , the case

shall be d ee m e d su b m i t t e d for d ec i si on , u n l e s s the
cou rt d i rect s the p art i es t o argu e o r t o su b mi t th ei r
re sp e ct i v e m e m o ra n d a o r an y fu rt her p le ad i n g s .
If severa l d efen d an t s or third-party d efen d an t s,
and so forth, h a vi n g sep a rat e d e f e n s e s ap p ea r by
d i f f e re n t co u n s e l , the Cou rt sh al l d e t e r m i n e the
re lat i ve ord er of p re s en t at i o n of t h ei r evi d en ce , (la ,
R30)
NOT E S
1. . U nd e r s c o r i n g the i m p o r t a nc e of a pr e -
t r ia l conference and the proceeding conducted t herein,
this a me nded sect ion addit io nally provides t hat , unless
the court specifically directs, the t rial shall be limit ed to
the issues st at ed in the pre-t r ial order.
2. Par. (g) declares, for purposes of fixing the date

of s u b m i s s io n of the case for decis io n vis - a- vis the
co nst it ut io nal period for deciding t he same, t hat i t shall
be upon the admiss io n of t he evidence of t he part ies.
Ho wever , i f t he t r ia l co urt allows oral a r g u m e n t or
s u b m i s s i o n o f m e m o r a n d a , t he per io d s ha l l b e
co rr espo nding ly ext ended after such proceedings have
been conduct ed or such me mo r a nd a subm it t ed. Since
t her e is a possibilit y t hat the me mo r a n d a may not be
received in the court s imu lt aneo usly, the court should
specify in advance or declare after act ual submission of
the me mo r and a or furt her pleadings the dat e when the
case is deemed submit t ed for decision.
3. The order of t rial provided for in Sec. 5 applies

to a regularly cont rovert ed claim. Hence, if the answer
ad m it s t he d e fe nd a nt ' s o bligat io n a s a lleged i n the
co mp la int bu t special de fenses are invoked, plaint iff
does not have to present evidence since judicial admissions
do not require proof (Sec. 2, Rule 129), and it should be
386
RUL E 30 TRIAL SEC . 6
the defendant who should forthwit h pr esent his evidence

in support of his special defenses (Yu vs. Mapayo, L-29742,
Mar. 29, 1972).
4. Addit ional evidence may be offered at the rebutt al

st age if it was newly discovered, or omit t ed t hr o ugh
mist ake or inadvert ence, or where the purpose is to correct
evidence previously offered (Lopez vs. Liboro, 81 Phil.
429), subject to the discret ion of the court.
5. A r elat ed rule in Amer ican jur is pr udence on

evidence at the rebutt al stage was adopted by the Supreme
Court in a cr imina l case (People vs. Mazo, G.R. No.
136869, Oct. 17, 2001) which could very well apply in all
ot her cases. The holding is t hat evidence offered in
rebutt al is not automat ically excluded just because it would
have been more properly admit t ed in the case in chief.
W h e t he r evid e nc e could hav e been more pr o p er l y
admit t ed in the case in chief is not a test of admissibilit y
of evidence in rebut t al. Thus, the fact that t est imony
might have been useful and usable in the case in chief
does not necessarily preclude its use in rebutt al.
Sec. 6. Agreed statement of facts. — The part ies

to any act ion ma y agree, in wri ti ng, upon the facts
i n volved in the li ti gat ion, and submi t the case for
j u d g m e n t o n the fact s agree d up on , wi t h ou t the
i n t rod u ct i on of evi d en c e .
If the part i es agree only on some of the facts
in i ssu e, the trial shall be held as to the d i sp u t ed
fact s in suc h ord er as the cou rt shall p resc ri b e.
(2a, R30)
NOTES
1. This is known as a st ipulat io n of facts and is

among the purposes of a pre-trial in civil cases (Sec. 2[d],
Rule 18). The part ies may also st ipulate verbally in open
387
RUL E 30 R E M E D I A L LA W C O M P E N D I U M S E C S . 7, 8
co urt . Suc h s t ip u l a t io n s ar e bind i n g unles s relie f

therefrom is per mit t ed by the court on good cause shown,
such as error or fraud (Ortua vs. Rodriguez, 63 Phil. 809).
But counsel cannot st ipulat e on wha t t heir respect ive
evidence consist s of and ask t hat judgme nt be rendered
on the basis of such st ipulat io n (Arzadon vs. Arzadon, 15
Phil. 77).
2. . S t i p u l a t i o n s of fact s ar e no t p e r m i t t e d
in act ions for annu l me nt of marr iage (Art. 88, Civil
Code; now, Art. 48 Family Code) an d for lega l
s e p a r at io n (Art. 101, Civil Code; now, Art. 60,
Family Code). Former ly, in cr iminal cases, st ipulat io ns of
facts were not per mit t ed (U.S. vs. Donato, 9 Phil. 701;
People vs. Ordonio, [CA], 67 O.G. 4224). See, however,
Rule 118 which now per mit s such st ipu la t io ns at the pre-
t rial conference.
Sec. 7. Statement of judge. — Du ri n g the h ea ri n g or

trial of a cas e an y s t a t e m e n t mad e by the j ud g e wit h
re f e re n c e t o the case , o r t o an y o f the p art i es, w i t n e s s e
s o r cou n s e l , shall b e mad e o f record in the
s t e n o g ra p h i c n ot es . (3a, R30)
NOT E
1. This provisio n differs so mew ha t from t hat of

Sec. 17, Rule 136, the last p ar agr ap h whereof reads as
follows:
"Whenever requested by a party, any statement made
by a judge of first instance, or by a commissioner, wit h
reference to a case being tried by him, or to any of the
part ies t heret o, or to any wit ness or attorne y, dur ing the
hear in g of such case, shall be mad e of record in t he
st eno gr aphic notes."
Sec. 8. Suspension of actions. — The s u s p e n s i o n of

a c t i o n s shal l be g o v e rn e d by the p ro v i s i o n s of the
Civil Code, (n)
388
RUL E 30 TRIAL SEC . 9
NOTES
1. Rule 21 of the former Rules, providing for the

suspension of action, has been eliminat ed in these revised
Rules and, instead, t hese provisions of the Civil Code have
been adopted for t hat purpose:
"Art. 2030. Every civil action or proceeding shall
be suspended:
(1) If willingness to discuss a possible compromise
is expressed by one or both part ies; or
(2) If it appears t hat one of the part ies, before
the commencement of the action or proceeding, offered
to discuss a possible compromise but the other part y
refused the offer.
The durat io n and t erms of the suspension of the
civil act ion or proceeding and similar mat t er s shall
be governed by such provisions of the rules of court
as the Supr eme Court shall pro mulgat e. Said rules
of court shall likewise provide for the appoint ment
and dut ies of amicable compounders."
Sec. 9. Judge to receive evidence; delegation to clerk

of court. — The j ud g e of the court wh er e the case is
p en d i n g shall p e rson a l ly recei ve the e vi d en c e to be
ad d u ce d by the part ies. H owever , in d efau lt s or
ex parte h ea ri n gs , and in any case wh er e the p art i es
a g re e i n w r i t i n g , the C ou rt ma y d e l e g a t e the
re cep t i on of evi d en c e to its clerk of cou rt wh o is a
me mb e r of the bar. The clerk of court shall have
no p owe r to rule on obj ecti on s to any q u est i o n or
to the ad mi s si o n of exh ibi t s, whi c h ob ject ion s shall
be resolve d by the cou rt upo n su b mi s si o n of his
report and the t ran scrip t s wit hi n ten (10) days from
t ermi n at i on of the h earin g, (n)
389
NOT E S
1. Under the 1964 Rules, where the defendant is in

default, some court s referred the mat t er of the recept ion of
the evidence for the plaint iff to a commissioner, usually t he
clerk of court or his deput y. In Laluan, et al. vs. Malpaya, et
al. (L-21231, July 30, 1975), it was held that the clerk of
court may be aut horized to receive evidence subject to the
condit ion t hat if such proceedings and the decision t her eo n
prejudice the subst ant ia l r ight s of the aggrieved part y, the
lat t er should be given an opport unit y to t hresh out his case
in court. However, the S upr eme Court subs eque nt ly ruled
such pract ice as wrong and wit hout basis in any rule, and
has required t hat , where the defendant had been declared
in default, the trial judge himself should t ake down the
evidence (Lim Tanhu vs. Ramolete, et al., L-40098, Aug. 29, 1975).
However, in Continental Bank vs. Tiangco, et al. (G.R. No.
50480, Dec. 14, 1979), it was held t hat the ju dg me nt based
on e v id e nc e r ec e ive d b y t he d e p ut y c ler k o f Co urt a s
co mm is s io ner i s valid wher e i t wa s not impa ir e d by
ext rinsic fraud or lack of due process and the judgment
debt o r s had made par t ia l pa yme n t to satisfy it. The
Laluan case was advert ed to and the doctrine t herein was
r eit er at ed in National Housing Authority vs. CA, et al. (L-
50877, April 28, 1983), wherein the part ies had agreed to
the appo int ment of a commissioner, and in Gochangco, et
al. vs. CFIofNegros Occ, et al. (L-49396, Jan . 15, 1988).
2. The pr e se n t provisio n is int e nde d to effect a

r appr o che me nt bet ween the conflict ing pract ices, having
in mind the need to relieve the judge of some of his judicia l
funct ions whene ver the same can be safely e nt r ust ed to a
responsible officer and wit h the necessary safeguards for
the int er est s of the par t ies. The basic rule, of course,
r ema ins t hat the judge must himself personally receive
and resolve the evidence of t he part ies.
390
RUL E SO TRIA L SE C . 9
However, the recept ion of such evidence may be

delegat ed under the following condit ions, viz.: (a) The
delegat io n may be made only in default or ex parte
hear ings, or on agr e e me n t in wr it ing by the par t ies ;
(b) The recept ion of evidence shall be made only by t he
clerk of t hat court who is a member of the bar; (c) Said
clerk shall have no power to rule on object ions to any
quest ion or to the admission of evidence or exhibits; and
(d) He shall submit his report and t r anscr i pt s of the
proceedings, toget her with t he objections to be resolved
by the court, wit hin 10 days from the t erminat io n of the
hear ing.
391
RULE 31
CO NS O LIDAT IO N OR S EVERANCE
S e c t i o n 1 . Consolidation. — W h e n a c t i o n s
i n v o l v i n g a c o m m o n q u e s t i o n of law or fact are
p e n d i n g b ef o r e the c ou rt , i t ma y ord e r a j oi n t
h e a ri n g or trial of an y or all the mat t e r s in i ssu e in
the a c t i o n s ; i t ma y o rd e r al l the a c t i o n s con •
soli d at ed ; an d i t ma y mak e suc h ord er s c o n c e rn i n g
p r o c e e d i n g s t h e r e i n a s ma y t e n d t o a v o i d
u n n e c e s s a r y cost s or d elay. (1)
NO TES
1. The objects of consolidat ion, or the rat ionale of a

jo in t h e a r i n g a u t ho r i z e d b y Rule 31 , ar e t o avo id
mult iplicit y of suit s, guard against oppression or abuse,
pr event delay, clear congested dockets, simplify the work
of the t rial court and save unnecessar y costs and expenses.
Consolidat ion seeks to att ain justice wit h the least expense
and vexat ion to the lit igant s. The pr esent t endency is to
per mit consolidat ion whenever possible and irrespect ive
of the d ive r s it y of the is sue s invo lved (Palanca vs. Querubin,
et al., L-29510-31, Nov. 29, 1969; Raymundo, et al. vs.
Felipe, L-30887, Dec. 24, 1971).
2. . The rule on co nso lidat io n of cases

gener a l l y applies only to cases pending before the same
judge, not to cases pending in different br anches of the
same court or in different court s (PAL, et al. vs.
Teodoro, et al., 97 Phil. 461), and also applies to
special pro ceedings (Salazar vs. CFI of Laguna,
infra); bu t w h e n e v e r appropr iat e, and in the int er est of
just ice, consolidat ion of cases in different branches of the
same court or in different court s can be effected.
Consolidat ion of cases on appeal and assigned to
different divisions of the S upr eme Court or the Court of
Appeals is also aut horized, and generally
392
RUL E 31 C O N SO L I D AT IO N O R SEVERANC E SE C . 1
the case which was appealed later and bearing the higher
docket number is consolidated with the case having t he
lower docket number.
3. As a rule, the conso lidat ion of sever al cases

i nvo lv i n g the sa m e p a r t ie s an d s u b j e c t - m a t t e r i s
discret ionary wit h the trial court. However, consolidation
of t hese cases becomes a mat t er of dut y if two or more
cases are tried before the same judge, or, if filed wit h
different branches of the same Court of First Inst ance,
one of such cases has not been part ially tried (Raymundo,
et al. vs. Felipe, supra). Subject to the qualificat ion in
the latter case, it would seem t hat the former doctrine t hat
there is no time beyond which no consolidation of cases
can be effected is st ill valid (see Sideco vs. Paredes,
74 Phil. 6).
4. The t hree ways of consolidat ing cases are (a) by

recast ing the cases already inst it uted, conducting only one
h e a r i n g an d r e n d e r i n g only one d ec is io n, (b) by
conso lidat ing the exist ing cases and holding only one
hear ing and r e nder in g only one decision, and (c) by
hear in g only t he pr inc ipa l case and s uspe nd in g t he
hear ing on the ot hers unt il judgment has been rendered
in t he principal case (Salazar vs. CFI of Laguna, et al.,
64 Phil.785).
5. Cases can be consolidated for purposes of a single
appeal therefrom and a single decision can be rendered
t hereon (Sideco vs. Paredes, supra).
6. On considerat ions of judicial economy and for the
convenience of the part ies, the Supreme Court can also
order the consolidation of cases involving substant ially the
same part ies and issues but which have been filed in
different courts of equal jur isdict ion. Thus, where as a
consequence of a vehicular collision, a bus company filed
an action for damages against the other bus company in
the proper court in Quezon and the heirs of the deceased
393
passenger of one of the buses filed an action for damages

aga ins t bot h co mpanies in Cavit e wher e in said heirs
wer e r e s i d e n t s , the S u p r e m e C o u r t o r d e r e d the
consolidat ion of both cases in t he Cavite court, inst ead of
requir ing said heirs to int ervene in the case in Quezon
(Superlines Trans. Co. vs. Victor, et al., G.R. No. 64250,
Sept. 30, 1983).
Under the same considerat ion, the same procedure

was followed wher e, as a consequence of a vehicu lar
collision, the passenger s of the bus brought an action in
the t he n Court of Fir st Inst ance of Agusan del Sur on
culpa contractual, and t he owner of the other vehicle sued
the bus company in Misamis Orient al. The Supreme Court
ordered the consolidat ion of both cases in the court of
Agusan del Sur, upon the furt her considerat ion t hat the
case filed t her ein had already been pending prior to the
ot her action (Vallacar Transit, Inc., et al. vs. Yap, et al.,
G.R. No. 61308, Dec. 29, 1983).
Sec. 2. Separate trials. — The c o u r t , in

f u rt h e ra n c e o f c o n v e n i e n c e o r t o avoi d p rej u d i ce,
ma y ord e r a sep arat e trial of an y claim, cross- c lai m,
c o u n t e rc l a i m , or t h i rd - p a rt y co mp l a i n t , or of an y
se p a rat e i ssu e o r o f an y n u mb e r o f clai ms , c ros s -
c l a i m s , c o u n t e r c l a i m s , t h i rd - p a rt y c o m p l a i n t s o r
i ssu es . (2a)
NO TES
1. When separ at e trial of claims is conducted by the

court under this sect ion, i t may render separat e judgment s
on each claim (see Sec. 5, Rule 36).
2 . T hi s p r o vis io n p e r m i t t i n g s e p a r a t e t r ia l s
p r e s u p po s e s t hat the c laims involved ar e wit hin t he
jur isdict io n of the court. When one of the claims is not
wit hin its jur isdict io n, the same should be dismissed, so
t hat it may be filed in the proper court.
394
RULE 32
TRIAL BY COMMISS IONER
S e c t i o n 1. Reference by consent. — By w ri t t e n
con sen t of both p art i es, the cou rt may order an y or
all of the i s s u e s in a cas e to be r e f e r r e d to a
co m mi s s i on e r to be agreed upo n by the p a rt i es or
to be ap p o i n t e d by the cou rt. As use d in t h es e
Rules, the word " com mi ssi on e r" i n c lu d es a refe ree,
an aud i t or and an exami n e r, (la , R33)
Sec. 2. Reference ordered on motion. — When the

p art i e s d o no t con s en t , the cou rt may, upo n the
ap p li cat i on of ei t h e r or of its ow n moti on, direct a
re fe ren ce to a com mi s s i on e r in the followi ng cases:
(a) When the trial of an issue of fact req u i re s
the e xa mi n at i o n of a long accoun t on eit h er side,
in wh i c h case the com m i s si o n e r may be di rect ed to
hear and report upon the whole i ssue or any speci fic
q u est i o n in volved t h erei n ;
(b) When the t akin g of an accoun t i s n ec es sa r y
for the i n formati on of the court before j u d g m en t ,
or for carryi n g a j u d gmen t or order into effect;
(c) When a q u est i o n of fact, other tha n upon
the p l ead i n gs , ari ses upon mot ion or ot h erwi se, in
any stage of a case, or for carryi n g a j ud gmen t or
order into effect. (2a, R33)
Sec. 3. Order of reference; powers of the commissioner.

— Wh e n a r e f e r e n c e i s m a d e , the cl e r k s h a l l
fort h wi th fu rni sh the commi s si on e r with a copy of
the order of referen ce. The order may specify or
limit the powers of the commi ssi oner, and may direct
him to report only upo n particu lar i s su es, or to do
or perform p art icu lar acts, or to recei ve and report
395
evi d en c e on ly, and ma y fix the dat e for b e g i n n i n g

and clo si n g the h ea ri n g s and for the filin g of his
report. Sub ject to the sp eci fi cat i on s and li mi t at i on s
st at ed in the order, the c o m m i s s i o n e r ha s an d shall
exe rci s e the p owe r t o regu lat e the p ro c e e d i n g s i n
ever y h e a ri n g before hi m and t o d o all act s an d take
all m e a s u re s n e c e s s a r y or p rop e r for the effi ci en t
p e rf o rm an c e of hi s d u ti e s UNDER the order. He ma y
i ssu e s u b p o en a s and s u b p o en a s duces tecum, swea r
w i t n e s s e s , an d u n l e s s o t h e r w i s e p r o v i d e d i n the
o r d e r o f r e f e r e n c e , h e ma y ru l e u p o n the
a d m i s s i b i l i t y o f e v i d e n c e . The t ri a l o r h e a ri n g
before hi m shall p rocee d in all re sp ec t s as i t wou l d
i f hel d before the cou rt. (3a, R33)
NO TES
1. . I n the p r o c e e d i n g s U N D E R t hi s sect io n
, the commissioner may rule upon the admissibilit y of
evidence, unless ot herwise provided in the order of
reference. In r ecept io n of evidence before the clerk of
court UNDE R the provisions of Sec. 9, Rule 30, the
clerk does not have t hat power and he shall just receive
the evidence subject to the object ions int erposed t her eto
and such quest ions or object ions shall be resolved by t he
court after the clerk has submit t ed his report to it.
2. What Sec. 3 aut horizes to be limited is the scope
of the pro ceeding s before the co mm is s io ner , not t he
modalit y thereof. The order of reference may direct the
commissioner to perform different acts in and for purposes
of the proceed ings but, what ever may be the case, the
r equir eme nt for him to hold a hear ing cannot be dispensed
wit h as t his is the essence of due process (Aljem's Corp.,
etc. vs. CA, et al., G.R. No. 122216, Mar. 28, 2001).
Sec. 4. Oath of commissioner. — B efore en t e ri n g

u po n hi s d u t i e s the c o m m i s s i o n e r sh al l b e swor n
396
RUL E 32 TRI AL BY COM M ISSIONE R S E C S . 5- 9
t o a f a i t h f u l an d h o n e s t p e r f o r m a n c e t h e re o f .
(14, R33)
Sec. 5. Proceedings before commissioner. — Upon

r e c e i p t o f the o rd e r o f r e f e r e n c e an d u n l e s s
ot h e rw i s e p rovi d ed t h erei n , the co m mi s si on e r shall
fort h wi th set a time and place for the first m eet i n g
of the p art i es or t hei r cou n se l to be held wi t h i n ten
(10) day s after the date of the order of referen ce and
shall notify the p art i es or th ei r cou n sel. (5a, R33)
Sec. 6. Failure of parties to appear before

commissioner. — If a party fails to ap p ear at the time
and place ap p oi n t ed , the com mi s si on e r may p roceed
ex parte or , in hi s d i s c r e t i o n , a d j o u r n the
p ro c e e d i n g s to a future day, gi vin g n ot i ce to the
ab sen t p art y o r hi s c o u n s e l o f the ad j ou rn m en t .
(6a, R33)
Sec. 7. Refusal of witness. — The refu s a l of a

w i t n e s s t o ob e y a s u b p o e n a i s s u e d b y the
co m mi s s i on e r or to give evi d en c e before him, shall
be d eeme d a con t emp t of the court wh i c h ap p oi nt ed
the c o m mi s si o n e r . (7a, R33)
Sec. 8. Commissioner shall avoid delays. — It is

the duty of the com m i ss i on e r to p roceed with all
re a son ab l e d i l i g en ce . Ei th er party, on noti ce to
the p a rt i e s and c o m m i s s i o n e r , ma y app ly t o the
cou rt for an order req u i ri n g the co mmi ssi on e r to
exp ed i t e the p ro c ee d i n g s and to make his report.
(8a, R33)
Sec. 9. Report of commissioner. — Up o n the

co mp l et i o n of the trial or h eari n g or p roc e ed i n g
before the co mmi ssi on e r, he shall file with the court
his report in wri t i n g upo n the matt ers su b mitt ed to
397
RUL E 32 R E M E D I A L LA W COMPENDIU M S E C S . 1 0 -1 3
hi m by the ord er of refe ren ce. Whe n hi s p ower s

are not sp eci fi ed or li mi t ed , he shall set forth his
fi n d i n gs of fact an d c o n c l u s i o n s of law in his report.
H e sh al l a t t a c h t h e r e t o all e x h i b i t s , a ff i d a v i t s ,
d e p o s i t i o n s , p ap er s and the t ran sc ri p t , i f any, of the
t est i mon i al e vi d en c e p res en t ed before him. (9a, R33)
Sec. 10. Notice to parties of the filing of report. —

Upo n the fi ling of the rep ort, the p art i e s shall be
n ot i fi ed by the clerk, an d the y shall be al lo w e d ten
(10 ) d a y s w i t h i n w h i c h t o s i g n i f y g r o u n d s o f
ob j e ct i o n to the fi n d i n g s of the rep o rt , i f th e y so
d esi re. Ob ject ion s to the report based upo n grou nd s
w h i c h we r e a v a i l a b l e t o the p a rt i e s d u r i n g the
p ro c e e d i n g s b efore the c o m m i s s i o n e r , ot h e r tha n
ob j e ct i on s t o the fi n d i n g s an d c o n c l u s i o n s t h e re i n
set forth, shall not be c o n s i d e re d by the Cou rt un les s
the y wer e mad e before the c o m m i s s i o n e r . (10, R33)
Sec . 11. Hearing upon report. — U p o n the e xp i ra t i o

n o f the p eri o d o f t e n (10) day s ref erred t o in the
p re c e d i n g sect i on , the rep o r t sh all be se t for h ea ri n g ,
after w h i c h the Cou rt shal l i ssu e a n ord er a d o p t i n g ,
m o d i f y i n g , o r r e j e c t i n g the re p o r t i n w h o l e o r i n
p a rt , o r r e c o m m i t t i n g i t w i t h i n s t r u c t i o n s , o r
r e q u i r i n g the p a rt i e s t o p re s e n t fu rt h e r e v i d e n c e
b efore the c o m m i s s i o n e r o r the cou rt. (11a, R33)
Sec. 12. Stipulations as to findings. — Whe n the

p art i e s s t i p u l a t e that a co m m i s s i o n e r' s fi n d i n g s of
fac t sh a l l b e fi n al , on l y q u e s t i o n s o f la w sh a l l
t h e re a ft e r be c o n s i d e re d . (12a, R33)
Sec . 13. Compensation of commissioner. — The

C o u rt s h a l l a l l o w the c o m m i s s i o n e r s u c h
re a s o n a b l e c o m p e n s a t i o n a s the c i r c u m s t a n c e s o f
398
RUL E 32 TRIAL B Y COM M I SSI ONE R SEC . 13
the case warran t, to be t axed as costs agai n s t the

d efeat ed party, or ap p ort i on ed , as j u st i ce req ui res.
(13, R33)
NOTE S
1. When the commissioner did not hold a hearing

in violat ion of Sec. 3 of this Rule, it is error for the trial
court to issue an order approving said commissioner's report
over the objection of the aggrieved part y (Jaca vs. Davao
Lumber Co., et al, L-25771, Mar. 29, 1982).
2. . It should also be noted, in passing, t hat

the former Rule 32 which provided for trial with assessors
has not been reproduced in the present revision of the
Rules.
399
RULE 33
DEM URRER TO EVIDENCE
Sec. 1. Demurrer to evidence.—After the plaintiff

ha s c o m p l e t e d the p re s e n t a t i o n o f hi s e v i d e n c e , the
d e f e n d a n t ma y mov e for d i s mi s s a l o n the grou n d
that u p o n the fact s an d the law the p la i n t i ff ha s s h o w
n no ri ght to relief. I f hi s mot i o n i s den i ed , he sh al l
h av e the ri gh t t o p re s e n t e v i d e n c e . I f hi s m o t i o n i s
g r a n t e d bu t o n a p p e a l the o rd e r o f d i s m i s s a l i s
re ve rs e d h e shal l b e d e e m e d t o hav e wa i v e d the
ri ght t o p re se n t ev i d en c e , ( la , R35)
NO TES
1. A de mur r e r to evidence is a mot ion to dismiss on

the ground of insufficiency of evidence and is present ed
after the plaint iff r est s his case. It t hu s differs from a
mot ion to dismiss under Rule 16 which is grounded on
preliminar y object ions and is pr esent ed at the out set of
the case, i.e., generally, before a responsive pleading is
filed by t he mo vant and wit hin the per iod for the filing
thereof. See Note 1 under Sec. 1, Rule 16.
2. . In t he l a n g u a g e of t he S u p r e m e Co ur t , a
d e mu r r e r to evidence may be issued wher e, upon the
facts and the law, the plaint iff has shown no right to relief.
Whe r e t he p l a i n t i f f s e vid e nc e t o g e t h e r wit h suc h
inferences and conclusions as may reasonably be drawn
t h e r e f r o m doe s no t w a r r a n t r ec o ve r y a g a i n s t
the defendant , a de mur r e r to evidence should be
sust ained. A de mu r r e r to evidence is likewise sust aina bl
e when, admit t ing ever y proven fact favorable to the
plaint iff and i n d u l g i n g i n hi s fa vo r al l c o n c l u s i o n s
fa ir l y an d r easo nably inferable t herefrom, the plaint iff
has failed to make out one or more of the mat er ia l
ele me nt s of his case, or when t here is no evidence to
support an allegat ion
400
RUL E 33 DEMURRE R T O E VI D E N C E SEC . 1
necessary to his claim. It should be sust ained where the

p la int i f f s evidence is prima facie insufficient for a
recovery ( Heirs of Emilio Santioque vs. Heirs of Emilio
Calma, G.R. No. 160832, Oct. 27, 2006).
3. . De fe nd a nt s who p r e s e n t a d e mu r r e r to
the plaint iffs evidence ret ain the right to present their
own evidence, if the trial court disagrees wit h them; if the
trial court agrees with t hem, but on appeal, t he appellat e
court disagrees with both of t hem and reverses the
dismissal order, the defendant s lose the right to present
their own evidence. The appellate court shall, in
addit ion, resolve the case and render judgment on the
merit s, inasmuch as a demurr er aims to discourage
prolonged lit igat ions. I t canno t r ema n d the case for
fur t he r pr o ce ed i ng s (Radiowealth Finance Co. vs. Del
Rosario, et al., G.R. No. 138739, July 6, 2000).
4. If an order of dismissal under this Rule is reversed
on appeal, the decision of the appellate court will be based
only on the evidence of the plaint iff as the defendant
loses his right to have the case remanded for recept io n
of his evidence (see Siayngco vs. Costibolo, L-22506,
Feb. 28, 1969).
5. Where the defendant 's motion is sust ained and
the case is dismissed under t his Rule, such order would be
an adjudicat ion on the mer it s, hence the requir ement in
Sec. 1, Rule 36 t hat said judgment should state clearly
and dist inct ly the facts and the law on which it is based,
should be complied with. Where, however, the demur rer
is denied, the denial order is interlocutory in nat ure, hence
Sec. 1, Rule 36 has no applicat ion (Nepomuceno, et al. vs.
Commission on Elections, et al., G.R. No. 60601, Dec. 29,
1983). Such denial order is not controllable by cert iorari,
abse n t an o ppr ess ive exer cise of jud icia l a u t ho r it y
(Bautista, et al. vs. Sarmiento, et al., L-45137, Sept. 23,
1985; David, et al. vs. Rivera, G.R. Nos. 139913 and
140159, Jan. 16, 2004).
401
6. . For the co unt er part bu t cont rary feat ures

in cr im ina l cases, see Sec. 23 , Rule 119 and the
not es t her eunder.
402
RULE 34
JUDG M ENT ON THE PLEADINGS
S ect i o n 1. Judgment on the pleadings. — Where

a n a n s w e r fai ls t o t en d e r a n i ssu e , o r o t h e rw i s e
a d m i t s the m a t e ri a l a l l e g a t i o n s o f the a d v e r s e
party' s p lead i n g, the cou rt may, on mot ion of that
party, direct j u d g m en t on suc h p lead in g. H owever,
in act i on s for d ecla rat i on of nu lli ty or an n u l m e n t
of marri ag e or for legal sep a rat i on , the mat eri al
fact s a l l e g e d i n the c o m p l a i n t sh al l a l w a y s b e
proved, (la , R19)
NOTES
1. A judgment on the pleadings presupposes t hat

t here is no controvert ed issue what soever between the
par t ies , hence the pla int iff i s also assu med to have
a d m it t e d all the r e le v a n t a l l e g a t io n s of fact of
the defendant in his answer (Evangelista vs. De la Rosa,
76 Phil. 115; Mercy's, Inc. vs. Verde, L-21571, Sept. 29,
1966). The judgment is, therefore, based exclusively upon
the allegat ions appear ing in the pleadings of the part ies
and the annexes t heret o, if any, wit hout considerat ion
of any evidence aliunde (see Rodriguez vs. Llorente,
49 Phil. 823).
2. The plaintiff, by moving for judgment on the
pleadings, is not deemed to have admit t ed irrelevant
allegat ions in the defendant 's answer (Araneta vs. Perez, L-
20787-8, June 29, 1965); ne it her is the defendant deemed
to have admit t e d allegat io ns of damage s in t he
co mplaint (Abubakar Tan vs. Tian Ho, L-18820, Dec. 29,
1962; Delfin vs. CAR, L-23348, Mar. 14, 1967),
hence t here can be no award of damages in said judgment
in the absence of proof (Lichauco vs. Guash, 76 Phil. 5).
403
RUL E 34 REMEDIA L LA W C O M P E N D I U M 8EC. 1
3. Under t his Rule, a judgment on the pleadings

must be on mot ion of the claimant . However, if at the pre-
trial, the court finds t hat a judgme nt on the pleadings is
proper, it may r e nde r such judg me n t motu proprio (Sec.
2[g], Rule 18).
4. The trial court may render a judg me nt on the
pleadings if, after the pre-t r ial, the facts war r a n t such
a j u d g m e n t (Taleon vs. Sec. of Public Works &
Communications, L-24281, May 19, 1967).
5. . Dist inct io ns bet ween judgment on the

pleadings and su m mar y judg me nt (Rule 35):
a. J u d g me n t on t he pleadings is proper whe n i t
appear s t hat t here is no genuine issue between the part ies;
a su mmar y judg me nt is proper even if t her e is an issue as
to damages recoverable.
b. Ju dg me n t on the pleadings is based exclusively
upon t he pleadings wit hout int ro duct ion of evidence; a
su mmar y judg me nt is based not only on the pleadings but
also upon the affidavits, deposit ions and admissio ns of the
part ies showing t hat , except as to the amount of damages,
t here is no genuine issue.
c. Ju dg me n t on the pleadings is available in any
act ion, except for declarat io n of nullit y or annu l me nt of
mar r iage and legal separat ion; a su m ma r y judgment is
proper only in act ions to recover a debt, or for a liquidat ed
sum of money, or for declar at ory relief.
d. A mot ion for judgment on the pleadings is subject
only to the 3-day notice rule (Sec. 4, Rule 15) and where
all the mat er ia l a ver me nt s of the complaint are admit t ed,
such mot ion may even be made ex parte (Cruz vs. Oppen, L-
23861, Feb. 17, 1968); a mot ion for sum mar y judgme nt
r equir es prior 10-day notice (Sec. 3, Rule 35). See also
Narra Integrated Corp. vs. CA, et al. (G.R. No. 137915,
Nov. 15, 2000).
RUL E 34 JUDGM EN T O N TH E P L E A D I N G S SEC . 1
6. . J u d g m e n t s on the p le ad ing s and

s u m m a r y judgment s are also to be distinguished from
judgment s by default. It will be observed t hat in
default judgment
(a) genu in e is sue s of fact and/or law are nor ma l l y
involved; (b) evidence must be introduced on the mat erial
allegat ions, albeit ex parte, except in cases covered by the
rule on summar y procedure; (c) all cases may be subject
to judgment s by default, except those for annulment or
declarat ion of nullit y of marr iage or legal separat ion; and
(d) motions for default judgment s may be filed ex parte,
except under the rule on summar y procedure wherein
upon failure of defendant to answer, the court, motu
proprio or on p l a i n t i f f s mo t io n, s ha l l r e nd e r the
corresponding judgment .
7. As provided in Sec. 1 of this Rule, a judgment on

the pleadings is not allowed in actions for declarat ion of
nullit y or annu lme nt of marriage or for legal separat ion.
The same prohibit io n applies to a summar y judgment
(see Note 2 under Secs. 1 and 2, Rule 35). For t hat matt er,
an o r de r of de fau lt an d a ju d g me n t by de fau lt ar e
proscribed in act ions for declarat ion of nullity of marriage
or for legal separat ion (Sec. 3[eJ, Rule 9). The foregoing
prohibit ions are based on and expressive of the concern
and pr o t ect io n e xt ende d by the S t at e to t he socia l
inst it ut ion of marriage.
This protective policy on the marital vinculum is now
furt her enhanced by special procedural rules on actions
involving the validit y of marriage or for legal separat ion
of the s p o u s e s . On Mar c h 4 , 2003 , an d effect ive
Mar c h 15, 2003 , the S upr e me Co urt appro ved and
p r o mu lg a t e d in A.M. No. 02-11-10-SC the Rule on
Declarat ion of Absolute Nullit y of Void Marriages and
Annulment of Voidable Marriages (Appendix AA) and, in
A.M. No. 02-11-11-SC, the Rule on Legal S eparat io n
(Appendix BB).
405
RUL E 3 5
S U M M AR Y J U D G M E N T S
S e c t io n 1. Summary judgment for claimant. — A

p a r t y s e e k i n g t o r e c o v e r u p o n a c la i m ,
c o u nt e r c la i m , o r cro ss- c la i m o r t o obt ai n a
d e c l a r a t o r y r e l i e f m a y , a t an y t i m e a f t e r t he
p l e a d i n g i n a n s w e r t h e r e t o ha s bee n s e r ve d , mov e
w it h s u p p o r t i n g a f f i d a v it s , d e p o s i t i o n s o r
a d m i s s i o n s for a s u m m a r y j u d g m e n t i n hi s favo r
u p o n al l o r an y p a r t t her eo f , ( la , R34 )
Sec . 2. Summary judgment for defending party. —

A p a r t y a g a i n s t w ho m a c la i m , c o u n t e r c l a i m , o r c r o s s -
c l a i m i s a s s e r t e d o r a d e c l a r a t o r y r e l ie f i s s o u g h t ma y
, a t an y t i m e , mo v e w it h s u p p o r t i n g a f f id a v it s ,
d e p o s i t i o n s o r a d m i s s i o n s for a s u m m a r y j u d g m e n t i n
hi s favo r a s t o al l o r an y p a r t t her eo f . (2a, R34 )
NOT E S
1. . For dist inct io n s bet wee n a ju d g m e n t on

t he pleadings and a su mmar y judg ment , see the notes
2. While the Rule does not specifically so provide, a

su m ma r y jud g me n t is not pro per in an act ion for the
a nnu l me nt or declar at ion of nullit y of a mar r iage (and
also in legal separ at io n), just as in the case of a judgment
on the pleadings, as t his Rule refers to an act io n "to
recover upon a claim," etc., t hat is, to recover a debt or a
liquidat ed demand for money (Roque vs. Encarnacion,
et al., 95 Phil. €43). S ummar y judg ment s, however, are
made specifically applicable to the special civil act ion for
declarat or y relief (Rule 63).
406
RUL E 35 SUM M AR Y JU D GM E N T S SEC . 3
3. The provisions of this Rule have been amended

to allow the part ies to submit not only affidavits but also
deposit ions or admissions in support of t heir respect ive
cont ent ions.
Sec. 3. Motion and proceedings thereon. — The

mo t io n sha l l b e ser ve d a t leas t te n (10) day s befor e
t he t im e s pe c i f ie d for t he h e a r i n g . The a d v e r s e p a r t
y ma y ser v e o p p o s i n g aff ida vit s, de p o s it io n s , o r
a d m i s s i o n s a t lea s t t hr e e (3) da y s be fo r e t he he a r i n g .
Aft er t he he a r i n g , t he j u d g m e n t so ug h t s h a l l b e
r e n d e r e d f o r t h w i t h i f t he p l e a d i n g s , s u p p o r t i n g
a ffid a vit s, d e po s it io ns , an d a d m i s s io n s o n file, s ho
w t h a t , e x c e p t a s t o t he a m o u n t o f d a m a g e s , t h e r e i s n
o g e n u i n e i s s u e a s t o an y m a t e r i a l fact an d t hat t he
mo vi n g par t y i s e nt it le d to a j u d g m e n t as a ma t t e r
of law. (3a, R34)
NOTE S
1. Summar y judgment is proper only when there is

clearly no genuine issue as to any mat erial fact in the
action, and if t here is any question or controversy upon
any quest ion of fact, there should be a trial on the merits
(Agcanas vs. Nagum, L-20707, Mar. 30, 1970; Solidbank
Corp. vs. CA, et al., G.R. No. 120010, Oct. 3, 2002).
2. In a motion for summar y judgment, the crucial

question is whet her the issues raised in the pleadings are
eit her genuine, sham or fictitious, as shown by affidavits,
deposit ions, or admissions accompanying the motion.
A genuine issue means an issue of fact which calls
for the present at ion of evidence, as dist inguished from
an issue which is fict it iou s or co nt r ived so as not
to const it ut e a genuine issue for trial (Manufacturers
Hanover Trust Co., et al. vs. Guerrero, G.R. No. 136804,
Feb. 19, 2003).
407
3. . S u mma r y ju d g me n t i s not pr o pe r wher e

t he defendant pr esent ed defenses t ender ing fact ual
issues which call for the pr esent at io n of evidence
(Villanueva vs. NAMARCO, L-27441, June 30, 1969;
Guevarra, et al. vs. CA, et al., L-49017 and L-49024, Aug.
30, 1983; R&B
Surety & Insurance Co., et al. vs. Savellano, et al., L-45234,
May 8, 1985), as where the defendant specifically denied
the ma t e r ia l a lleg at io ns in the co mp la i n t (Tamo vs.
Gironella, et al., L-41714, Oct. 29, 1976). Fur t her mo r e,
t her e mus t be a mot ion for su mmar y judg me n t and a
hear in g of said mot io n, the no n- o bser va nc e of which
procedural r equir ement s war r ant s the set t ing aside of the
su mmar y judg me nt (Cadirao, et al. vs. Estenzo, L-42408,
Sept. 21, 1984).
4. The t est for the propriet y of a motion for summar y

judg ment is whet her the pleadings, affidavits and exhibit s
in support of the mot ion are sufficient to overcome the
opposing papers and to justify the finding t hat , as a mat t er
of law, t her e is no defense to the act ion or the claim is
clear ly me r it o r io u s (Estrada vs. Consolacion, et al., L-
40948, June 29, 1976).
5. Where the mot ion for summar y judg ment is duly

verified and is based on facts ad mit t ed by t he adver se
part y, e it her expressly or impliedly, affidavit s on such
mat t er s need not be submit t ed (Motor Service Co. vs.
Yellow Taxicab Co., 96 Phil. 688).
6. An account ing order in a su mmar y judg me nt is

of an int er locut ory nat ur e and is not appealable (Talastas
vs. Abella, L-26398, Oct. 25, 1968).
7. Under Sec. 3 of t his Rule, su mmar y ju dg me nt

may not be r ender ed on the amount of damages, alt hough
such judg me nt may be ent ered on the issue of the right to
damages. Thereaft er, the court may proceed to assess
the amo unt recoverable (Jugador vs. he Vera, 94 Phil.
704). Also, the court cannot impose att orne y' s fees in a
408
RUL E 35 SUM M AR Y JU D GM EN T S SE C . 4
su mmar y judg me n t in the absence of proof as to the

amount thereof (Warner, Barnes & Co. vs. Luzon Surety
Co., 95 Phil. 924).
8. In case of doubt as to the propriet y of a summar y

judgment , the doubt shall be resolved against the moving
part y. The court should t ake t hat view of evidence most
favorable to the part y against whom it is directed and give
t hat p a r t y the be ne f it of all fa vo r able in fe r e nc e s
(Gatchalian vs. Pavillin, et al, L-17619, Oct. 31, 1962).
9. Mere denials, unaccompanied by any fact which

would be admissible in evidence at a hearing, are not
sufficient to raise a genuine issue of fact sufficient to defeat
a motion for summar y judgment [Plantadosi vs. Loew's
Inc., 7 Fed. Rules Service, 786, June 2, 1943] even t hough
such issue was formally raised by the pleadings [Fletcher
vs. Krise, 4 Fed. Rules Service, 765, Mar. 3, 1941]. Where
all the facts are within the judicial knowledge of the court,
summar y judgment may be grant ed as a mat t er of right
[Fletcher vs. Evening Newspaper Co., 3 Fed. Rules Service,
539, June 28, 1940] (Miranda vs. Malate Garage &
Taxicab, Inc., 99 Phil. 670).
Sec. 4. Case not fully adjudicated on motion. —

I f o n m o t i o n U N D E R t hi s Ru le , j u d g m e n t i s no t
ren d e red upo n the wh ol e case or for all the reliefs
sou gh t and a trial i s n ec e s sa ry , the cou rt at the
h eari n g of the mot i on , by exa m i n i n g the p lead i n gs
and the e v i d e n c e before i t and by i n t e rro g a t i n g
cou n se l sh all a sc e rt ai n wha t mat eri al facts exi st
w i t h o u t s u b s t a n t i a l c o n t r o v e r s y an d wh a t are
act u ally and in good faith con t rove rt ed . It shall
t h e reu p o n make an order sp eci fyi ng the facts that
appear wi t h ou t su b st an ti al con t roversy, i n clu d i n g
the e x t e n t t o w h i c h the a m o u n t o f d a m a g e s
or oth er relief is not in cont roversy, and d i rect i n g
su c h f u rt h e r p r o c e e d i n g s i n the ac t i o n a s are
409
j u s t . The f a c t s s o s p e c i f i e d s h a l l b e d e e m e d
e s t a b l i s h e d , an d the trial sh all b e c o n d u c t e d o n the
c o n t ro v e rt e d facts acco rd i n gly. (4a, R34)
NOT E
1. While Sec. 4 of t his Rule aut horizes the rendit ion

of a p a r t i a l s u m m a r y j u d g m e n t , suc h j u d g m e n t i s
int er locut ory in nat ur e and is not a final and appealable
judg me nt . The appeal from the par t ia l and appealable
judg me nt should be t aken toget her wit h the judg ment in
the ent ire case aft er t he t rial shall have been conducted
on the mat er ia l facts on which a subst ant ia l controversy
exist s (Guevarra, et al. vs. CA, et al., L-49017 and L-
49024, Aug. 30, 1983).
Sec . 5. Form of affidavits and supporting papers.

— S u p p o rt i n g an d op p osi n g affi d avi t s shall be mad e
o n p erso n a l k n o w l e d g e , sh all set forth su c h facts
a s wou l d b e ad m i s s i b l e i n e v i d e n c e , an d sh all sho w
affi rmat i ve ly that the affiant i s c o m p e t e n t t o t esti fy
t o the mat t e r s st at e d t h e rei n . Cert i fi ed tru e copi e s
o f all p a p e r s o r p art s t h e r e o f re f e rre d t o i n the
af fid avi t shal l b e a t t a c h e d t h e re t o o r serve d
t h e re w i t h . (5a, R34)
Sec . 6. Affidavits in bad faith. — S h ou l d it ap p ea r

t o it s s a t i s f a c t i o n a t an y t i m e t h a t an y o f t he
a f f i d a v i t s p r e s e n t e d p u r s u a n t t o t h i s Ru l e ar e
p re s e n t e d in bad faith, or solel y for the p u rp o s e of
d elay , the Cou rt shal l fo rt h wi t h ord e r the o f fe n d i n g
p a rt y o r c o u n s e l t o pa y t o the o t h e r p art y t he
am ou n t o f the re a s o n a b l e e xp e n s e s wh i c h the filing
o f the a f f i d a v i t s c a u s e d hi m t o i ncu r , i n c l u d i n g
a t t o r n e y ' s fe es . I t may , aft e r h e a r i n g , f u rt h e r
ad j u d g e the o f f e n d i n g p art y o r c o u n s e l gu i lt y o f
c o n t e m p t . (6a, R34 )
410
RUL E 35 S E C S . 5- 6
NOT E
1. The sanct ions for violat ions of the provisions of

these sect ions shall be imposed not only on the offending
party but also upon his counsel. The contumacious conduct
co nt emp lat ed herein are in t he nat ur e of indir ect or
construct ive contempt, hence the same shall be punished
only after hearing, pur suant to Sec. 3 of Rule 71 .
411
RULE 36
J U D G M E N T S , FINAL ORDERS
AN D ENTRY TH EREO F
S e c t i o n 1. Rendition of judgments and final

orders. — A j u d g m e n t or final ord e r d e t e r m i n i n g
the meri t s of the cas e shall be in wri t i n g p e rs on a l l y
an d d i rect l y p rep a re d b y the j ud ge , st at i n g clearly
an d d i s t i n c t l y the fact s an d the law o n w h i c h i t i
s b ased , si gn e d b y him , an d filed wit h the clerk of
cou rt, ( la )
NO TES
1. The decision of the court is the ent ir e document

p r e p a r e d an d p r o m u l g a t e d b y it, a d j u d i c a t i n g an d
d e t er m i n i n g the r ig ht s of the part ie s to the case. I t
co nt ains the findings of fact and law, t he r easo ns and
evidence to support such findings, as well as the discussion
of issues leading up to its det er minat io n. The disposit ive
or decret al port ion or the fallo is what actually co nst it ut es
the judg me nt or resolut ion of the court and which can be
the subject of execut ion, alt ho ugh the other part s of the
decision may be resort ed to in order to det er mine the ratio
decidendi for such judg me nt or reso lut ion.
2. Where t her e is a conflict bet ween the disposit ive

portion of the decision and t he body thereof, the disposit ive
port ion controls irrespect ive of what appear s in the body
of t he decision. However, an except ion is recognized
where the inevit able conclusion from the findings of fact
in the opinion is so indubit able and clear as to show t hat
t her e was a mist ake in the disposit ive port ion (Aguirre, et
al. vs. Aguirre, et al., L-33080, Aug. 15, 1974), or where
explicit discussio n and set t leme nt of the issue is found in
the body of the decision (Millare vs. Millare, 106 Phil.
412
RUL E 3 6 J U D GM E N T S , FINA L ORDER S SEC . 1
AN D E N T R Y T H E R E O F
293; Chung, et al. vs. China National Cereals, etc., Corp.,

et al., G.R. No. 131502, June 8, 2000).
But when the disposit ive part of a final order or
decision is definit e, clear and unequivocal and can be
wholly given effect wit hout the need of int erpret at io n or
construct ion, the same is considered as the judgment of
the court to the exclusion of anyt hing said in the body
thereof (Contreras vs. Felix, 78 Phil. 570; Edward vs.
Arce, 98 Phil. 688; Olac, et al. vs. CA, et al., G.R.
No. 89256, Sept. 2, 1992).
3. The special forms of judgment s under the Rules

and jur isprudence are:
a. Judg me nt by default (Sec. 3, Rule 9);
b. Judgment on the pleadings (Rule 34);
c. Summar y judgment (Rule 35);
d. Several judgment (Sec. 4, Rule 36);
e. Separat e judgment (Sec. 5, Rule 36);
f. Judg me nt for specific acts (Sec. 10, Rule 39);
g. Special judgment (Sec. 11, Rule 39);
h. Judg me nt upon confession;
i. Judg me n t upon compromise, or on consent or
agreement ;
j. "Clarificatory" judgment ; and
k. Judgment nunc pro tunc.
4. Judgment s upon confession or upon compromise
stand on the same footing in the sense that they cannot
be ent ered into by counsel wit hout the knowledge and
special aut horit y of the client (Manufacturers Bank &
Trust Co. vs. Woodworks, Inc., L-29453, Dec. 28, 1970).
Both are immed iat ely executory (Samonte, et al. vs.
Samonte, et al., L-40683, June 27, 1975), unless otherwise
413
provided in the judgment , as may be prayed for or agreed

upon by the par t ies fsee Vda. de Corpus vs. Phodaca-
Ambrosio, L-30206, Mar. 30, 1970). See also Art. 2032,
Civil Code, r equir ing court appro val for compro mises
e nt er e d into by p a r e nt s , g u a r d ia n s , r e p r e s e nt at i ve s ,
ad min ist r at o r s, and executors; and Art. 1878(3) of said
Code which pro vides t hat a t hird per son cannot bind
ano t her to a compro mise agr ee me nt unless such t hird
person has obt ained a special power of att orney for t hat
purpose from the part y to be bound.
However, a judgme nt on consent is not to be fully
equat ed wit h a judg me nt by confession. The former is
one the provisions and t er m s of which are set t led and
agreed upon by t he part ies to the act ion, and which is
ent er ed in the record by the consent of the court. There
must be unqualified agreement among the part ies to be
bound by the judg me nt on consent before said judg ment
may be so ent er ed and the court does not have t he power
t o suppl y t e r ms , pr o vis io n s or e s s e nt ia l det a il s not
previously agreed to by the part ies. On the ot her hand, a
judg me nt by confession is not a plea but an affirmat ive
and vo lunt ar y act of the defendant himself and the court
exercises a cert ain a mo unt of super visio n over the ent ry
of judgment , as well as equit able jur isdict io n over t heir
subsequent st at u s (Republic vs. Bisaya Land Trans. Co.,
Inc., et al., L 31490, Jan. 6, 1978).
5. As a r u le , a j u d g m e n t upo n c o mp r o m i s e is
i m med iat e ly execut or y (Pamintuan vs. Muhos, et al., L-
26331, Mar. 15, 1968; Central Bank vs. CA, et al., L-38224,
Dec. 10, 1974; Pasay City Gov't, et al. vs. CFI of Manila, et al,
L 32162, Sept. 28, 1984) in the absence of a motion to set
the same aside on the ground of fraud, mis t ake, etc. (Cadano
vs. Cadano, L-34998, Jan. 11, 1973; Zagala, et al. vs. Jimenez, et
al, L 33050, July 23, 1987), and if such motion is made and
denied, appeal may be t aken from t hat order of denial
(De los Reyes vs. Ugarte,
75 Phil. 505; Enriquez vs. Padilla, 77 Phil. 373). In
414
Mabale, et al. vs. Apalisok, et al. (L-46942, Feb. 6, 1979),

the Supreme Court held t hat to be ent it led to appeal from
a judg ment on compromise, a part y must not only move to
set aside the judgment but must also move to set aside or
annu l the compromise agreement itself. A judg me n t
r ender ed pur suant to a compromise is not appealable
(Montejo vs. Urotia, L-27187, July 22, 1971) and has the
effect of res judicata from the mo ment it is r ender ed
(Dormitorio vs. Fernandez, et al., L-25889, Aug. 21, 1976;
Arcenas, et al. vs. Cinco, L-29288, Nov. 29, 1976). Where
a compromise agreement of the lit igants is not contrary to
law, judicial decisions, morals, good customs or public
policy, the court cannot impose a judgment different from
the t erms of said agreement (PCIB vs. Echiverri, L-41795,
Aug. 20, 1980).
6. In a case, it was held t hat where a judgment based

on a compromise is sought to be enforced against a person
who was not a party thereto, he may file an original pet ition
for cert iorari to quash the writ of execution. He could not
move to have the compromise set aside and then appeal
from t he order denying his motion since he is not a party
to the compromise or the judgment t herein. A petition for
relief would be an inadequat e remedy as the execution was
already being carried out (Jacinto vs. Montesa, L-23098,
Feb. 28, 1967).
7. A compromise agreement , once approved by the
court, has the force of res judicata between the part ies
and should not be disturbed except for vices of consent or
forgery (see Arts. 2037 and 2038, Civil Code). No decree
of legal separat ion can be grant ed if based exclusively on
a confession of judg me nt (Art. 101, Civil Code, now,
Art. 60, Family Code; Ocampo vs. Florenciano, 107 Phil.
35). The same rule applies to actions for annulment of
marriage (Art. 88, Civil Code; now, Art. 48, Family Code).
8. While a ju d g m e n t upon confession may be

rendered when the defendant appears in court or files a
415
pleading expressly agreeing to the p la int iffs demand, i t

has been held t hat t here is no law in t his jurisdict ion which
recognizes a judg me nt note, t hat is, a promissory note
wher ein the make r aut horizes in advance, on war r an t of
at t or ney, a confession of judg me nt aga inst him in the
event of non-payment of the note on its mat ur it y. This is
considered void as being cont rar y to public policy, since
the pro missor bar gains away his day in court and t his
might be a source of abuse and oppressio n (PNB vs.
Manila Oil Refining, etc. & Co., 43 Phil. 444).
9. A judg me nt nunc pro tunc (lit erally, "now for

t hen") is r ender ed to ent er or record such judgment as
had been formerly r ender ed but has not been e nt er ed as
t hu s r ender ed. Its only funct ion is to record some act of
the court which was done at a former t ime, but which was
not t he n recorded, in order to make the record speak the
t rut h, wit hout any changes in subst ance or in any mat er ia l
respect (Lichauco vs. Tan Pho, 51 Phil. 862; Henderson
vs. Tan, 87 Phil. 466).
10. The object of a judg me nt nunc pro tunc is not

the rendit io n of a new judg me nt and the ascer t a inme nt
and det er minat io n of new r ight s, but is one placing in
proper form on the record the judg me nt t hat has been
pr evio us l y r e nde r e d , to mak e i t spea k t he t r ut h and
t her eby show wha t the judicial act ion really was. I t may
not be availed of to correct judicial errors, such as to render
a judg me n t which the court ought to have r ender ed in
place of the one it did erroneously r ender or to supply non•
act ion by the court however erroneous the judg me nt may
have been (Manning International Corp., et al. vs. NLRC,
et al., G.R. No. 83018, Mar. 13, 1991).
11 . It is the filing of t he signed decision wit h the

clerk of court, and not its pro no unce me nt in open court,
t hat const it ut es rendit io n of judg me nt (Ago vs. CA, et al., L-
17898, Oct. 31, 1962; Balquidra vs. CFI of Capiz, L-40490,
Oct. 28, 1977; Castro vs. Malazo, A.M. No. 1237-
416
RUL E 3 6 J U D GM E N T S , FINA L ORDER S SE C 1
CAR, Aug. 21, 1980). If the decision is sent by the judge

by regist ered mail, it is considered filed in court as of the
date of its receipt by the clerk, and not the date of its
posting or mailing (see Sec. 51, R.A. 296, as amended by
R.A. 1186 and R.A. 1404).
12. A judgment must conform to the pleadings and

the theory of the action under which the case was tried.
A judgment going outside the issues and purport ing to
adjudicate something on which the part ies were not heard
is invalid (Lazo, et al. vs. Republic Surety & Insurance
Co., Inc., L-27365, Jan. 30, 1970).
13. A decision of the Court of First Instance with

absolutely nothing to support it is a nullity and open to
direct att ack (Air France vs. Carrascoso, et al., L-21488,
Sept. 28, 1966).
14. A judg ment contrary to the express provisions

of law is erroneous but it is not void. Once it becomes
final and executory, it is as binding and effective as any
judgment and, t hough erroneous, will be enforced as a
valid ju d g me n t in acco r dance wit h it s d ispo s it io ns
(Mercado, et al. vs. CA, et al., L-44001, June 10, 1988).
15. The validit y of a judgment or order of a court

cannot be collaterally att acked except on the ground of
(a) lack of jur isdict ion, or (b) ir r egular it y of its entry
appar ent from the face of the record. If the supposed
nullit y is based on the part y' s alleged lack of consent to
the compromise agreement , the remedy is to move for its
reconsiderat ion and to appeal from the the judgment if
the motion is denied; or if the judgment is already final
and executory, to file a petition for relief under Rule 38
(Cadano vs. Cadano, L-34998, Jan. 11, 1973).
16. Where the judgment is ambiguous and difficult
to comply wit h, the remedy is to file a mot ion for a so-
called "clarificatory" judgment (Almendras vs. Del Rosario,
L-20158, Oct. 14, 1968). The court may correct
417
a clerical error or clarify an ambiguit y in the judgment

even after its finalit y (Presbitero vs. CA, et al., L-34241,
May 28, 1984; Rebuldela, et al. vs. IAC, et al., G.R.
No. 70856, Nov. 11, 1987). For said purpose, the court
may resort to the pleadings filed by the part ies, the findings
of fact and the conclusions of law expressed in the text or
body of t he decision (Republic Surety & Insurance Co.,
Inc. vs. IAC, et al., G.R. Nos. 71131-32, July 27, 1987).
17. T her e is a difference bet w ee n an ame nd e d

judg me nt and a supple me nt al judg ment . In an amended
and clarified judgme nt , the court makes a t horough study
of the original judg ment and r ender s the a me nded and
clarified judg me nt only after consider ing all the factual
and legal issues. Such a me nded and clarified decision is
an ent ir ely new decision which super sedes the original
decision. A supple me nt al decision does not take the place
of or ext inguish t he original; it only serves to bolst er or
add so met hing to the pr imar y decision (Esquivel, et al.
vs. Alegre, etc., et al., G.R. No. 79425, April 17, 1989).
18. Final orders should st at e the facts on which they

ar e base d (Yuson de Pua vs. San Agustin, L-27402,
July 25, 1981). While the Rules do not specifically require
findings of fact and the law on which an order of dismissal
is based, for the sat isfact ion of the losing part y and to
assist the appellat e court in the resolut ion of an appeal
t herefrom, a t rial court should reason out its order inst ead
of merely incorporat ing, by reference, the cont ent s of the
mot ion to dismiss (Mascunana vs. Prov. Bd. of Neg. Occ, L-
27013, Oct. 15, 1977). Minut e orders, or those merely st at in
g t hat the t r ial court had reso lved to gr an t the mot ion to
dismiss, should be avoided. Inst ead, the trial court should
specify the reasons io r the dismissal so that the appellat e
court can readily det er mine whet her there is prima facie
just if icat io n for t he order of dis missa l (Continental Bank vs.
Tiangco, G.R. No. 50480, Dec. 14, 1979). In issuing a
final and appealable order, the trial
418
RUL E 3 6 J U D GM E N T S , FINA L ORDER S SE C 1
court should state clearly the reasons for its issuance, with
specific references to t he facts and law relied upon,
necessary for the full under st anding thereof; otherwise,
the a p p e l l a t e Court would be at a loss or at leas t
unnecessarily inconvenienced in ascert aining the definite
basis of t he order (Amunategue vs. CA, et at., L-30340,
June 30, 1979).
19. Ever y court having jur isd ict io n to r ende r a
part icular judgment has inherent power and aut horit y to
enforce it and to exercise equit able control over such
enforcement. The court has aut horit y to inquire whet her
it s j u d g m e n t ha s been e xe cut e d , and will r e mo v e
obst ruct ions to the enforcement thereof. Such aut horit y
ext ends not only to such orders and such writ s as may be
necessary to carry out the judgment into effect and render
it binding and operat ive, but also to such orders as may
be necessary to prevent an improper enforcement of the
judgment . If a judgment is sought to be perverted and
made the medium of consummat ing a wrong, the court on
proper applicat ion can prevent it [31 Am. JUT., Judgments,
Sec. 882, pp. 363 364] (Cabrias vs. Adil, L-49648,
Mar. 18, 1985).
20. The requirement in Sec. 1 of this Rule t hat a

decision should state the facts and law on which it is based
(see Sec. 9, Art. X, 1973 Constitution) formerly applied
only to decisions of courts of record, and not those of
inferior courts, pur suant to Sec. 12, Art. VII of the 1935
Constitution. Thus, formerly, decisions of an inferior court
were not required to contain findings of fact and law (then
Sec. 14, Rule 5), unless it sits as a court of record in a
criminal case appealable to the Court of Appeals or the
S u p r e me Co urt (Sec. 87, R.A. 296, as amended). However,
under R.A. 6031, inferior courts became courts of record
and t he facts and law must appear in t heir decisions. Also,
Rule 5 has been expressly repealed and the procedure in
inferior courts is now the same as t hat in
419
RUL E 36 R E M E D I A L LA W COMPENDIU M SE C . 2
the Regional Trial Court s.

Nevert heless, i t has repeat edly been held t hat said
r equir eme nt , set out in t he foregoing const it ut io nal and
st at ut or y provisions, refers only to decisions on t he mer it s
and not to orders resolving incident al mat t er s (Mendoza
vs. CFI of Quezon, et al, L-35612 14, June 27, 1973, cit ing
Soncuya vs. National Investment Board, 69 Phil. 602
and Bacolod Murcia Milling Co., Inc. vs. Henares, 107
Phil. 560).
21 . The S upr eme Court is not compelled to adopt a
definite and st r ingent rule on how its judgment shall be
framed. It has the discret ion to decide whet her a "minut e
reso lut io n" should be used in lieu of a full-blown decision
in any p ar t icu lar case and t hat a minut e resolut ion of
dismissal of a pet it ion for review on certiorar i co nst it ut es
an adjudicat ion on the mer it s of the cont roversy or subject-
mat t e r of the pet it ion. Since the gr ant of a pet it ion for
review on cert iorar i is not a mat t e r of right but of sound
judicial discret ion, t her e is accordingly no need to fully
explain t he Court ' s denial. Such a minu t e resolut ion can
only mean t hat the S upreme Court agrees wit h or adopt s
the findings and conclusions of the lower court, t hat is,
t hat the lat t er' s decision sought to be reviewed and set
aside is correct (Smith, Bell & Co. [Phil.], Inc., et al. vs,
CA, et al, G.R. No. 56294, May 20, 1991).
22. . Sec. 40, B.P. Blg. 129 has aut hor ized memo•
r andu m decisions, a species of succinct ly wr it t en decisions
by a p p e l l a t e co urt s for exped ie nc y, pr act ica l it y and
co nve nie nce in co ns id er at io n of the docket st at u s of our
court s. I t has been held t hat such decisions comply wit h the
co nst it ut io na l ma nd at e (Oil and Natural Gas Commission vs.
CA, et al, G.R. No. 114323, Sept. 28, 1999).
However, to be valid, such me mo r a nd u m decision
should act ually embody the fact ual findings and legal
conclusions in an annex at t ached to and made an int egral
par t of the decisio n. Also, such decis io ns should be
420
AN D EN TR Y T H E R E O F
sparingly used and may be resorted to only in cases where

the facts are accepted in the main by the parties, are easily
det erminable by the judge and do not involve doctrinal
complications requir ing extended discussion. It may be
employed in simple cases where the appeal is obviously
groundless and deserves no more t han the time to dismiss
it (Yao vs. CA, et al., G.R. No. 132428, Oct. 24, 2000 and
cases t herein cited,).
23. . A judgment for support does not become

final because the allowance for the right of support is
essent ially provisional (Advincula vs. Advincula, L-19065,
Jan. 31, 1964).
24. A judgment in a nat uralizat ion case becomes final

only after the issuance of the nat uralizat io n certificate
and compliance by the applicant with R.A. 530 (Ao San
vs. Republic, L-21128, Aug. 19, 1967), but unlike other
decisio ns, it does not really become executory and a
certificate of nat uralizat ion may be cancelled on grounds
subsequent to the gr ant ing thereof (Republic vs. Guy,
L 41399, July 20, 1982).
25. A judge permanent ly transferred to another court
of equal jurisdiction can render a decision on a case in his
former court which was totally heard by him and submitted
for decision, with the parties having argued the case (Valentin
vs. Sta. Maria, et al., L-30158, Jan. 17,1974). This decision
abando ns the doct rine in People vs. Soria (L-25175,
Mar. 1, 1968) and reit erates the ruling in People vs. Donesa (L-
24162, Jan. 31, 1973). The present doctrine applies to both
civil and criminal cases.
Sec. 2. Entry of judgments and final orders. — If

no appeal or motion for new trial or re con si d e rat i on
i s filed with in the time p rovid ed in these Rules, the
j u d gmen t or final order shall forthwit h be en t ered
by the clerk in the book of en t ri es of j ud gmen t s. The
date of finality of the j u d gmen t or final order shall
421
be d ee me d to be the dat e of its ent ry. The record

shall con t ai n the d i sp o si t i v e part o f the j u d gm en t or
final ord er an d sh all be si gn e d by the clerk, wit h a
ce rt i fi cat e that suc h j u d g m e n t or final ord er ha s
b ecom e final an d exec u t o ry . (2a, 10, R51 )
NO TES
1. The a me nd me nt s under t his sect ion, to the effect

t hat the dat e of finalit y of the judg me nt or final order
shall be deemed to be the dat e of its ent ry, changes t he
for mer rule and aba ndo ns the jur ispr ude nce on what was
t hen considered the dat e of ent r y of jud g me nt s and final
orders.
The fo r mer do ct r in e wa s t hat the e nt r y i s not
syno nymous or necessar ily s imu lt aneo us wit h the finalit y
of the judg me nt or final order. It was underst ood t hen
t hat the finalit y of a judg me nt or final order, for purposes
of appeal or execut ion, took place by operat ion of law by
the lapse of t he r egle me nt ar y 15- or 30- day period, but
the ent r y t hereof may t ake place t hereaft er as i t is the
physical act of act ually recording the disposit ive port ion
of the judg me nt or final order in the book of ent r ies of
ju d g me nt s .
Thus, i t was repeat edly held t hat the finalit y of the
judg ment was ent irely dist inct from its entry and the delay
in the lat t er does not affect the effectivit y of the former
which is counted from the expirat ion of the period to appeal
(Munez, et al. us. CA, et al., L-46040, July 23, 1987, and
cases cited therein,).
This a me nd me n t in Sec. 2 makes finality and ent r y
s i m u lt a ne o u s by o per at io n of law an d e l i m i nat e s t he
confusion and guesswork whenever the part ies could not
have access, for one reason or anot her, to the book of
ent r ies of judg me nt s. It also avoids the usual problem
where the physical act of wr it ing out the ent r y is delayed
by neglect or sloth.
422
RUL E 36 J U D GM E N T S , FINA L ORDER S S E C S . 3- 5
AN D EN TR Y T H E R E O F
2. Entry of the judgment or final order assumes

import ance in reckoning some r egle ment ar y periods,
such as the 5-year period for execution by motion (Sec. 6,
Rule 39) or the 6-month period for a petit ion for relief
(Sec. 3, Rule 38). For this reason and to serve as official
records, Rule 136 requires t hat the clerk of court shall
keep a judgment book containing a copy of each judgment
rendered by the court in the order of its date, and a book
of e nt r ie s of j u d g m e n t s co nt a i n i n g at le ngt h in
chronological order entries of all final judgment s or orders
of the court (Sec. 9).
Sec. 3. Judgment for or against one or more of

several parties. — J u d g m e n t ma y be g ive n for or
a g a i n s t on e o r mo r e o f s e ver a l p la int iffs, an d for o r
a g a i n s t on e o r mo r e o f se ver a l d e f e n d a nt s . Whe n
j u s t i c e s o d e m a n d s , t he C o u r t ma y r e q u i r e t he
p a r t ie s o n eac h side t o file a d v e r s a r y p le a d i n g s a s
be t w e e n t he m s e l v e s an d d e t e r m i n e t he i r u lt i m a t e
r ig ht s an d o bl i g a t io ns . (3)
Sec. 4. Several judgments. — In an a c t i o n

a g a in s t se ver a l d e f e n d a nt s , the Co urt may , whe n a
severa l judg me n t i s proper , rende r judg me n t
a g a in s t on e o r mor e o f t he m , lea v in g the act io n t o
p r o c e e d a g a i n s t the o t he r s . (4)
Sec. 5. Separate judgments. — Whe n mor e t ha n

on e cla i m for r elie f i s p r e s e nt e d i n an act io n , the
co ur t , a t an y st age , upo n a d e t e r m i n a t i o n o f t he
i s s u e s m a t e r i a l t o a p a r t i c u l a r c l a i m a n d al l
c o u n t e r c l a i m s a r i s i n g ou t o f t he t r a n s a c t i o n o r
o c c u r r e n c e whic h i s t he subjec t m a t t e r o f the claim,
ma y r e n d e r a s e p a r a t e j u d g m e n t d is p o s i n g of suc h
c la i m . The j u d g m e n t sha l l t e r m i n a t e the act io n wit
h r e s p e c t t o t he cla i m s o d ispo se d o f an d the act io n
sha l l pr o ce e d a s t o the r e m a i n i n g c la i m s. I n
423
cas e a sep arat e j u d gm en t i s ren d e red , the Cou rt by

order ma y stay its en f o rce m en t u nti l the ren d i t i o n
of a s u b s e q u e n t j u d g m e n t or j u d g m e n t s an d ma y
p re sc ri b e suc h c o n d i t i o n s a s ma y b e n e c e s s a r y t o
secu r e the b en e fi t t h e re o f t o the p art y i n wh os e
favor the j u d g m e n t i s re n d e re d . (5a)
Sec. 6. Judgment against entity without juridical

personality. — Whe n j u d g m e n t is ren d e re d agai n s t
tw o o r mo r e p e r s o n s su e d a s a n e n t i t y w i t h o u t
j u ri d i c a l p e rs o n a l i t y , the j u d g m e n t sh al l se t ou t
t hei r i n d i vi d u a l or p rop e r n ames , i f kn own . (6a)
NO TES
1. Sec. 4 gives the meaning of a several judgme nt

and Sec. 5, a separ at e judgment . A several judg me nt is
proper where the liabilit y of each part y is clearly separable
and dist inct from t hat of his co-part ies such t hat the claims
ag a ins t each of t he m could have been the subject of
separ at e suit s, and judgme nt for or against one of t hem
will not necessar ily affect the ot her s. In actions aga inst
solidar y debtors, a several judg me nt is not proper. Thus,
under Sec. 3(c), Rule 9, where t here is a common cause of
act ion aga inst sever al defendant s and some are in default,
the case shall be tried on the basis of the answer of the no n-
default ing defendant s as a sever al judg me nt is not proper,
t her e being a common cause of act ion aga inst all.
2. Regarding Sec. 6, see the provisions of Sec. 15,

Rule 3 and the notes t her eu nder .
3. . A decisio n t hat ha s acquir ed finalit y

becomes im mut able and una lt er a ble. A final judg me n t
may no longer be modified in any respect, even if t he
modificat ion is mean t to correct erroneous conclusions of
fact and law; and w het her i t be made by t he court t hat
r ender ed i t or by the highest court of the land (Collantes
vs. CA, et al., G.R. No. 169604, Mar. 6, 2007).
424
RUL E 36 J U D GM E N T S , FINA L ORDE R S SE C . 6
The only except ions to the rule t hat final judgment s

may no longer be modified in any r espect are (1) the
correction of clerical errors, (2) the so-called nunc pro tunc
ent ries which cause no prejudice to any part y, (3) void
judg me nt s, and (4) whenever cir cu mst anc es t r ansp ir e
after t he finalit y of the decision making its execut ion
unjust and inequit able (Ramos vs. Ramos, G.R. No 144294,
Mar. 11, 2003; Sacdalan vs. CA, et al., 128967, May 20,
2004; Peha vs. GSIS, G.R. No. 159520, Sept. 19, 2006).
425
RUL E 37 R E M E D I A L LA W COMPENDIU M SEC . 1
RULE 37
NEW TRIAL OR RECO NS ID E RA T I O N
S ect i on 1. Grounds of and period for filing motion for

new trial or reconsideration. — W i t h i n the p e ri o d for
t a k i n g a n a p p e a l , the a g g r i e v e d part y ma y mov e
the tri al Cou rt t o set asi d e the j u d g m e n t o r final ord e
r an d gran t a ne w trial for on e or more o f the
f o l l o w i n g c a u s e s m a t e r i a l l y a f f e c t i n g the
s u b s t a n t i a l ri gh t s of said party:
(a) F r a u d , a c c i d e n t , m i s t a k e o r e x c u s a b l e
n e g l i g e n c e w h i c h o r d i n a r y p r u d e n c e cou l d no t
hav e gu a rd e d agai n s t an d b y reaso n o f wh i c h suc h
a g g ri e v e d p art y ha s p rob ab ly bee n i mp ai re d i n his
ri gh t s; or
(b) Newl y d i s c o v e re d e v i d e n c e , wh i c h h e coul d
not, wit h re a s o n a b l e d i l i g e n c e , hav e d i s c o v e re d and
p ro d u c e d a t the trial, an d wh i c h i f p re s e n t e d wou l d
p rob ab l y alt e r the resu lt .
Wi t h i n the sam e p eri od , the a g g ri e v e d p art y
ma y a l s o m o v e fo r r e c o n s i d e r a t i o n u p o n the
g ro u n d s that the d a m a g e s a w a rd e d are e xc e s s i v e ,
t h at the e v i d e n c e i s i n s u f f i c i e n t t o j u s t i f y the
d e c i s i o n or final ord er, or that the d e c i s i o n or final
ord e r i s con t ra r y t o law. ( la )
NOTE S
1. The word "perfect ing" in the first clause of the

for mer Sec. 1 has been correct ly changed to "t aking. "
Under the pr ese nt procedure, an appeal is taken by filing
a notice of appeal, and the appeal is perfected upon the
expir at io n of the last day to appeal by any part y. In
cases where a record on appeal is required, appeal is taken
by filing the notice of appeal and t he record on appeal,
426
RULE 37 NE W T R I AL O R RECON SIDER ATIO N SE C . 1
and the appeal is perfected upon the approval of the record

on appeal (Destileria Lim Tuaco & Co., Inc. vs. CA, et al.,
G.R. No. 63053, July 22, 1986).
This sect ion has been furt her reformulated wit h a
second p a r a gr a p h separ at ely t r eat in g on mot ions for
reconsiderat io n which are similarly but not completely
governed by t he same rules on mot ions for new t rial.
2. A motion for new t rial should be filed wit hin the
period for appeal, t hat is, wit hin 15 or 30 days from notice of
the judgment . It suspends the r unning of the period to
appeal, but does not ext end the t ime wit hin which an
appeal, must be perfected (taken), hence, if denied, the
movant has only the balance of t he r egleme nt ar y period
wit hin which to perfect (take) his appeal (Ramirez de la
Cavada, et al. vs. Butte, 100 Phil. 635).
3. However, if a motion for new trial does not satisfy

the r equir ement s of t his Rule, it is pro forma and does not
suspend the period to appeal (Sec. 2; Francisco vs. Caluag, L-
15365, Dec. 26, 1961). A mot ion for new t r ia l is considered
pro forma where:
(a) It is based on the same ground as t hat raised in a
preceding mot ion for new trial or reconsiderat ion which
has alread y been denied (Samudio, et al. vs. Mun. of
Gainza, Camarines Sur, 100 Phil. 1013);
(b) It cont ains the same ar gument s and manner of
discussion appear ing in the prior opposition to the motion
to dismiss and which motion was granted (Cruz vs. Tuazon
& Co., Inc., et al, L-23749, April 7, 1977);
(c) The new ground alleged in the second motion for
new t rial already existed, was available and could have
been alleged in the first motion for new trial which was
denied (Mallare, et al. vs. Panahon, et al, 98 Phil. 154;
Balquidra vs. CFI, et al, L-40490, Oct. 28, 1977);
(d) It is based on t he ground of insufficiency of
evidence or t hat the judg me nt is cont rar y to law but
427
does not specify the supposed defects in t he judgment

(Sec. 2; Villalon, et al. vs. Ysip, et al., 98 Phil. 851;
Crisostomo, et al. vs. CA, et al., L-27166, Mar. 25, 1970;
Villarica, et al. vs. CA, et al., L-28363, May 15, 1974; City
of Cebu vs. Mendoza, et al, L-26321, Feb. 25, 1975;
Nieto vs. De los Angeles, L-35514, Nov. 13, 1981); and
(e) It is based on the gro und of fraud, accident ,

mist ake or excusable negligence but does not specify the
facts const it ut ing these grounds and/or is not accompanied
by an affidavit of mer it s (Sec. 2 of t his Rule). Note t hat
fraud and mist ake mus t be alleged wit h part icu lar it y
(Sec. 5, Rule 8).
F u r t h e r m o r e , said mot ion mus t comply wit h t he
provisions of Rule 15, ot herwise it will not be accepted for
filing a nd / o r will no t s u s p e n d t he r u n n i n g o f the
r egleme nt ar y period. See notes and cases under Sec. 6 ,
Rule 15.
I t should also be observed t hat heret ofore, under Sec.
4 of the I nt er im Rules, no part y shall be allowed to file a
seco nd mot ion for reconsideration of a final o r der or
judg me nt of the t r ial court s. However, a second motion
for new trial wo ul d st il l be a va i l a b l e U N D E R the
cir cumst ances set out in Sec. 5 of t his Rule. This sect ion
has now expressly adopt ed t he foregoing prohibit io n in
the I nt er i m Rules wit h r espect to second mot io ns for
reconsideration.
4. . It has been held, however, t hat even if the

motion for r eco ns ider at io n is based on subst ant ia l l y
t he same gro unds as mo vant ' s memorandum whe n the
case was submit t ed for decision, it is not pr o forma if it
specifically po int s out t he conclusio ns allegedly not
su ppo r t e d by the evidence (Maturan vs. Araula, et al,
G.R. No. 57392, Jan. 30, 1982), aside from st at in g
add it io na l specific r easo ns for said grounds (Vina vs.
CA, et al, L-39498, Dec. 23, 1983).
428
RUL E 37 NE W TRI AL O R RECONSIDER ATIO N SEC . 1
Also, while a motion for new trial based on fraud and

so forth is pro forma if unaccompanied by an affidavit of
merit s, where said motion also invokes the furt her ground
t hat it s decis io n a war d s excessive da mage s , wit h a
certificat ion of the court's findings and conclusions, said
motion is not pro forma as the lat t er ground does not
require affidavits of mer it s (PCIB vs. Ortiz, et al., L-49223,
May 29, 1987).
5. Furt her mo re, the concept oipro forma motions for

r eco ns id er at io n is pr o per ly d ir e ct ed ag a ins t a final
judg ment or order, and not those against an int erlocutory
order. In the former, a repet it ion of the ground already
disposed of may be categorized as merely for purposes of
delay, hence such mot ion is pro forma; but such rule
does not apply to mot ions directed against int erlocutory
o r der s (BA Finance Corp. vs. Pineda, et al., G.R.
No. 61628, Dec. 29, 1982). See also Note 11 under Sec. 1,
Rule 65.
6. On the pro forma doctrine, it is worth recalling

wha t the S u p r e me C o ur t r e it e r at e d in Dacanay vs. Alvendia,
et al. (L-22633, Oct. 31 , 1969) t hat where a motion for
reconsiderat ion is but a reit erat ion of reasons and
a r g u me nt s pr evio usly set forth in the mo va nt ' s
m e mo r a nd u m and which t he tr ial court had a lr eady
considered, weighed and resolved adversely before i t
rendered its decision now sought to be considered, t hat
motion is pro forma.
The said case law rests upon the principle t hat such a
motion has no other purpose t han to gain time by delaying
or impeding the progress of the action. This is the logical
deduct ion t hat can be drawn from a motion which merely
reit erat es and repleads, and adds nothing more to, the
ar gument s which had previously been submit t ed to the
same court and which ar gument s it had duly considered
and resolved.
429
But, as pointed out in Guerra Enterprises Co., Inc.

vs. CFI ofLanao del Sur (L-28310, April 17, 1970), the
mere fact t hat a motion for reconsiderat ion deals with the
same issues and ar gument s already posed to and resolved
by the trial court in its decision does not necessarily mean
t hat the same is pro forma. A pleader prepar ing a motion
for r e c o ns i d e r a t io n mus t of ne c e s s it y a d d r e s s t he
ar gument s accepted by the court in its decision. In doing
so, he has to dwell upon the same issues passed upon by
the court and, if in his motion he may not discuss those
issues, the consequence would be t hat after a decision is
rendered t hen the losing part y would be confined to filing
only mot ions for reopening and new trial.
Where the circumst ances of a case do not show an
int ent on the par t of the p leader to merely delay the
proceedings, and his motion reveals a bona fide effort to
present addit ional mat t er s or to reit erat e his argument s
in a different light, the courts should be slow to declare
the same out right as pro forma. The doctrine relat ing to
pro forma motions has a direct bearing upon the movant 's
valuable right to appeal. It would be in the int erest of
just ice to accord the appellat e court the opport unit y to
review the decision of the t rial court on the mer it s t han to
abort the appeal by declar ing t he motion pro forma, such
t hat the period to appeal was not int err upt ed and had
consequent ly lapsed.
7. A motion for reconsiderat ion, if based on the same

grounds as t hat for a new trial, is considered a motion for
new trial and has the same effect (Rodriguez vs. Rovira,
63 Phil. 476). However, where the motion for new trial is
based on the last par agr aph of Sec. 1, it is properly a
motion for reconsiderat ion as the movant merely asks the
court to r eeva luat e its decision w it ho ut a t r ia l being
conducted again on the issues involved (City of Cebu, et
al. vs. Mendoza, et al., supra).
430
RUL E 37 NE W TRI AL O R RECONSID ER ATIO N SE C . 1
8. Fraud, as a ground for new trial, must be extrinsic

or collateral, t hat is, it is the kind of fraud which prevent ed
the aggrieved part y from having a trial or present ing his
case to the court, or was used to procure the judg ment
wit hout fair submission of the controversy. I nst ances of
collat eral fraud are acts int ended to keep the unsuccessful
p a r t y awa y from t he Co urt by a false p r o m i s e of
compromise, or purposely keeps him in ignorance of the
suit, or wher e t he at t o r ne y fr audulent ly pr et e nd s to
represent a part y and connives at his defeat, or corrupt ly
sells out his client 's int erest (Magno vs. CA, et al, L-
28486, Sept. 10, 1981). It is to be dist inguis hed from
intrinsic fraud which refers to the acts of a part y at the
trial which pr event ed a fair and just det er minat io n of
the case (Palanca vs. American Food Mfg. Co., L-22822,
Aug. 30, 1968) and which could have been lit igated and
det ermined at the t rial or adjudicat ion of the case, such
as falsification, false t est imony and so forth, and does not
const it ut e a ground for new t rial (Tarca vs. Carretero, 99
Phil. 419; Conde vs. IAC, et al, G.R. No. 70443, Sept. 15,
1986).
9. Mist ake generally refers to mist akes of fact but

may also include mist akes of law where, in good faith, the
defendant was misled in the case. Thus, a mist ake as to
the scope and ext ent of the coverage of an ordinance (City
of Iloilo vs. Pinzon, 97 Phil. 968 [Unrep.J), or a mist ake
as to the effect of a compromise agreement upon the need
for answer ing a complaint (Salazar vs. Salazar, 8 Phil.
183), alt hough actually co nst it ut ing mist akes of law, have
been considered sufficient to war r ant a new trial.
As a general rule, a client is bound by the mist akes of
his counsel (Que vs. CA, et al, G.R. No. 54169, Nov. 10,
1980). Only when the applicat ion of t his general rule
would result in serious injustice should an exception thereto
be applied (Villa Rhecar Bus vs. De la Cruz, et al,
G.R. No. 78936, Jan. 7, 1988).
431
10. Negligence mus t be excusable and generally

imput able to the part y but the negligence of counsel is
binding on the client just as the lat t er is bound by the
mist akes of his lawyer (Gaba vs. Castro, G.R. No. 56171,
Jan. 31, 1983; Ayllon vs. Sevilla, et al., G.R. No. 79244,
Dec. 10, 1987). However, negligence of the counsel may
also be a ground for new trial if it was so great such t hat
t he part y was pr ejudiced and pr e ve nt e d from fairly
present ing his case (People vs. Manzanilla, 43 Phil. 167;
cf. Republic vs. Arro, et al., L-48241, June 11, 1987).
11. . Newly discovered evidence, to war r a n t a
new trial, (a) must have been discovered after trial, (b)
could not have been discovered and produced at the trial
despite reasonable diligence, and (c) if present ed, would
probably alt er the result of t he action (National
Shipyards and Steel Corp. vs. Asuncion, et al., 103 Phil. 67).
Mere init ial host ilit y of a wit ness at the trial does not
const it ut e his t est imony into newly discovered evidence
(Arce vs. Arce, 106 Phil. 630).
12. Generally, a client will suffer the consequences

of the negligence, mist ake or lack of competence of counsel;
however, in the int erest of just ice and equity, except ions
may be made in inst ances where the part y may be unjust ly
deprived of his propert y. Thus, the court will not disregard
the verified defense in the answer t hat the t ransact io n
bet ween the part ies was really an equitable mort gage and
not a pacto de retro sale, especially where there is evidence
to support such defense (Escudero, et al. vs. Dulay, et al.,
G.R. No. 60578, Feb. 23, 1988; see also Amil vs. CA, et al.,
G.R. No. 125272, Oct. 7, 1999).
13. A motion for reopening the trial, unlike a motion

for new trial, is not specifically ment ioned in the Rules
but is nevert heless a recognized procedural recourse or
device d er i v in g va lid it y an d a c c e pt anc e from long
est ablished usage. It differs from a motion for new trial,
432
RUL E 37 NE W TRI AL O R RECON SIDER ATIO N SE C . 2
which is proper only after promulgat ion of judgment, since

a motion to reopen may properly be present ed only after
eit her or both part ies have formally offered and closed
their evidence before judg ment . Furt hermo r e, a motion
for new trial is based upon specific grounds set forth in
Sec. 1, Rule 37 for civil cases, and in Sec. 2, Rule 121 for
cr i m i na l case s ; w he r e a s the r e o p e n i n g of a case is
controlled by no ot her rule t han the par amo unt int erest
of just ice, rest ing ent irely on the sound discret ion of a trial
court, the exercise of which discret ion will not be reviewed
on appeal unless a clear abuse thereof is shown (Alegre
vs. Reyes, etc., et al., G.R. No. 56923, May 9, 1988; Agulto
S ec . 2. Contents of motion for new trial or

reconsideration and notice thereof. — The mot i o n shall
be mad e in wri t i n g st at i n g the grou n d or gro u n d s
t herefor, a wri t t e n n ot ice of wh i c h shall be served
by the movan t on the ad vers e party.
A mot i o n for ne w trial shall be proved in the
man n e r p rovi d e d for proof of mot i on s . A mot i o n
for the cau s e m e n t i o n e d in p a ra g ra p h (a) of the
p re c e d i n g sect i o n shall be su p p ort ed by affidavit s
o f m e ri t s w h i c h ma y b e r e b u t t e d b y a f f i d a v i t s .
A mot i o n for the cau s e m e n t i o n e d in p a ra g ra p h
(b) shall be su p p o rt e d by affidavits of the w i t n e s s e s
by wh o m suc h evi d en c e i s exp ect e d to be gi ven, or
b y d u l y a u t h e n t i c a t e d d o c u m e n t s w h i c h ar e
p rop ose d to be i n t rod u c e d in evi d e n c e .
A mot i o n for re c o n s i d e ra t i o n sh all p oi n t ou t
s p e c i f i c a l l y the f i n d i n g s o r c o n c l u s i o n s o f the
j u d g m en t or final order wh i c h are not su p p o rt e d
b y the e v i d e n c e o r w h i c h are c o n t r a r y t o law ,
m a k i n g e xp r e s s re f e re n c e t o the t e s t i m o n i a l o r
d ocu m en t a r y ev i d e n c e or to the p rovi si on s of law
alleg e d t o b e co nt ra r y t o suc h finding s o r
conc lu si ons .
433
RUL E 3 7 R E M E D I A L LA W C O M P E N D I U M SEC . 2
A pro forma m o t i o n for ne w t ri al or re con •

si d e rat i on shall not toll the re g l e me n t a r y peri od of
app eal. (2a)
NOT E S
1. An affidavit of mer it s is one which st at es (a) the

nat ur e or charact er of the fraud, accident, mist ake or
excusable negligence on which the motion for new trial is
based, (b) the facts const it ut ing the movant ' s good and
subst ant ial defenses or valid causes of action (Ferrer vs.
Sepeng, L-39373, Sept. 30, 1974), and (c) the evidence
which he int e nd s to pr esen t i f his mot io n is gr a nt ed
(Miranda vs. Legaspi, et al., 92 Phil. 290). An affidavit
of mer it s should st at e facts and not mere opinions or
conclusions of law (Malipol, et al. vs. Tan, et al., L-27730,
Jan. 21, 1974; Ferrer vs. Sepeng, supra).
The evidence must be such as to war r an t a reasonable
belief t hat , if pr esent ed, the r esult of t he case would
probably be a lt er ed (Aureo vs. Aureo, 105 Phil. 77).
Hence, collateral, corroborat ive, cumulat ive or impeaching
evidence are generally not sufficient.
2. Where t he mot ion for new t rial on these grounds

is not accompanied by an affidavit of mer it s, it should
proper ly be denied (National Marketing Corp. vs. De
Castro, 106 Phil. 803; Bernabe vs. CA, et al, L-18278,
Mar. 30, 1967; Ferrer vs. Sepeng, supra; Dionisio vs.
Puerto, et al, L-39452, Oct. 31, 1974). But in Ganaban
vs. Bayle (L-28864, Nov. 24, 1969), the S upr eme Court
held t hat verificat ion and affidavits of mer it s are required
only i f t he gr o und s relied upon ar e fraud, acc ident ,
mist ake or excusable negligence.
3. Affidavits of mer it s may be dispensed with when
the judg ment is null and void as where the court has no
jur isd ict io n over t he defendant or the su b je ct - mat t er
(Republic vs. De Leon, etc., et al, 101 Phil. 773), or is
434
RUL E 37 NE W T RI AL O R R ECONSIDE R ATIO N SECS.3- 5
procedurally defective as where judgment by default was

rendered before the regle ment ar y period to answer had
expired (Gonzales vs. Francisco, 49 Phil. 747), or where
the defendant was unreasonably deprived of his day in
court (Valerio vs. Tan, et al., 99 Phil. 419) as when no
notice of hear ing was furnished him in advance (Soloria
vs. De la Cruz, L-20738, Jan. 31, 1966; Gattoc vs. Sarrenas,
supra). Affidavits of mer it s are not required in motions
for reconsiderat ion (Mendoza vs. Bautista, et al., L-45885,
April 28, 1983).
4. As to the manner provided for proof of motions,

see Sec. 7, Rule 133 which provides t hat motions may be
proved by the record, affidavits, deposit ions or t est imonia l
evidence.
S ec . 3. Action upon motion for new trial or

reconsideration. — The trial cou rt may set asi d e the
j u d g m en t or final order and gran t a ne w trial, upo n
suc h t erm s as ma y be just, or ma y den y the mot i on .
I f the cou rt finds that exc es s i v e d a m age s hav e bee n
a w a rd e d o r t h at the j u d g m e n t o r final o rd e r i s
con t ra ry to the evi d en c e or law, i t may amen d suc h
j u d g m en t or final order accord i ngly. (3a)
Sec. 4. Resolution of motion. — A moti on for new

trial or re c o n s i d e ra t i o n shall be resolv e d wi t h i n
thirty (30) day s from the time i t is su b m i t t e d for
re so lu t i on , (n)
Sec. 5. Second motion for new trial. — A mot ion for

new trial shall i n c lu d e all grou n d s the n avai lab le
and t h os e not so i n clu d e d shall be d eeme d wai ved .
A secon d mot i o n for ne w trial, based on a grou nd
not exi st i n g nor avai lab le whe n the first moti on wa s
mad e, ma y be filed wi t h i n the time h e rei n p rovi d ed
e xc lu d i n g the time d u ri n g whi c h the first moti on
had bee n p en d i n g.
435
REMEDIA L LAW COMPENDIU M SEC . 6
No part y sh al l be a l l o w e d a s e c o n d mot i o n
for re c on si d e rat i o n of a j u d gm en t or final order.
(4a; 4, IRG)
NOTES
1. Sec. 4 is a new provision int ended to obviat e

u nnec e s sa r y pr o lo ngat io n of the t r ia l st age . While
reforms have been init iat ed to limit the period of trial
t hrough cont inuous hearings, and the Const it ut io n itself
prescribes the period for rendit ion of the judgment , the
same can be set at naught by the usual motions for new
trial or reconsiderat io n with open-ended periods for their
r e so lut io n an d which in effect freeze the ju d g me n t
correspondingly.
2. . The first sent enc e of Sec. 5 i mp l e me nt s

the "omnibus motion" rule under Sec. 8, Rule 15, wit h
the second sent ence providing for the except ion.
3. A second motion for new trial may be ent ert ained
where the ground therefor was not available or exist ing
at the t ime when t he first motion was filed. Thus, if the
first motion was based on fraud and was denied, a second
motion on the ground of newly discovered evidence can
still be ent ert ained if such evidence was discovered and
became available only after t he first motion had been
filed.
Sec. 6. Effect of granting of motion for new trial. —

If a ne w t ri al i s gra n t e d in a c c o rd a n c e wit h the
p ro v i s i o n s of thi s Ru le, the ori gi n al j u d g m e n t or
final ord er shall be vacat ed , and the act i o n shall
st an d for trial de novo; but the reco rd ed evi d e n c e
t ake n upo n the former t rial, in so far as the same i s
m a t e ri a l an d c o m p e t e n t t o e s t a b l i s h the i s s u e s ,
shall be use d at the ne w trial wi t h ou t ret aki n g the
same. (5a)
436
H.ULW
NOTES
1. Alt hough t he recorded evidence at the former trial

need not be taken anew, the court, in the interest of justice,
may recall the wit nesses who testified t herein for furt her
e xa m i n a t io n o r cr o s s - e xa m i na t io n , unle s s t he y ar e
no longer available (Castillo vs. Sebullina, et al., 31 Phil.
518).
2. . UNDE R the for mer Rules, t hi s pro cedur e

wa s observed: An order denying a motion for new t rial
was not appealable since the judgme nt in the case
wherein such order is rendered is not yet final. The
remedy of the mo va n t in such a s it ua t io n was to
appea l from the judgment and assign as an error in said
appeal the fact of denial of his motion for new trial.
This was different from the order denying a petit ion for
relief under Rule 38 wherein the remedy was to appeal
from such order, and not from the judg ment in t hat case
since said judgment had already become final and was
not appealable (Samia vs. Medina, 56 Phil. 618; Bernabe
vs. CA, et al., supra), and in the appeal from said order,
the appellant may also assail t he jud g me n t (Sec. 2,
Rule 41 which has been repealed,).
UNDE R the p r e s e n t r evised Rules, i t i s likew ise
specifically provided t hat an order denying a motion for
new t rial or reconsiderat ion is not appealable, the remedy
being an appeal from the judgment or final order in due
time (see Sec. 9 of t his Rule). This is reit erat ed in Sec. 1,
Rule 41 which provides t hat no appeal may be t aken from,
inter alia, an order denying a pet it ion for relief or any
similar motion seeking relief from judgment . Inst ead,
according to said Rule, the aggrieved part y may file an
appropr iat e special civil action under Rule 65.
Sec. 7. Partial new trial or reconsideration. — If

the grou n d s for a mot i on und er thi s Rule app ear
to the cou rt to affect the i ssu e s as to only a part,
437
or less tha n all of the mat t er in con t roversy, or only

one, or less tha n all, of the p art i es to it, the court
may ord er a ne w trial or grant re con si d e rat i o n as
to suc h i ssu e s i f seve rab l e wi t h ou t i n t erfe ri n g with
the j u d g m e n t or final ord er upo n the rest. (6a)
Sec. 8. Effect of order for partial new trial. — When

less tha n all of the i ssu e s are o rd e red ret ri ed, the
cou rt ma y ei th e r ent e r a j u d gmen t or final ord er as
t o the re s t , o r st a y the e n f o r c e m e n t o f su c h
j u d g m e n t or final ord er unti l after the ne w trial.
(7a)
NOTES
1. This pr o cedur e is per miss ible wher e e it he r a

several or a separ at e judgment is proper (see Secs. 4 and
5, Rule 36).
2. Where one part y files a motion for new trial or
reconsiderat ion and the ot her part y seeks to perfect an
appeal from t he said decision, the court should withhold
action on the appeal unt il after the motion for new trial or
r eco nsider at io n shall have been resolved (Simsion vs.
Belmonte, L-25388, Aug. 31, 1970).
3. Where defendant 's motion for new trial was denied
by t he trial court, it has been held t hat he can perfect an
appeal from the judg ment and also proceed on cert iorari
to set aside the order denying his motion for new trial.
There is no incompat ibilit y bet ween the two remedies as
one is directed against the judgment and the other, against
the order denying t he new t rial (Banco Filipino Savings
& Mortgage Bank vs. Campos, L-39905, Mar. 31, 1975).
Cons ider ing the provisions of Sec. 9 of t his Rule and
Sec. 1, Rule 41 , resort to these dual remedies now may
only be allowed under except ional circumst ances where
the factual sit uat ion and the demands of just ice justify
such recourses, and the claims involved in the case are so
438
RUL E 3 7 NE W T RI AL O R R E C O N S I D E R A T I O N SE C . 8
separable and urgent as to warr ant relief by both appeal

and cert iorar i.
4. A motion to ext end the r egle ment ar y period for

filing a motion for reconsiderat ion is not aut hor ized. The
r egleme nt ar y period for the filing of the record on appeal
when required (but not the notice of appeal or, formerly,
the appeal bond) may be ext ended, but the per iod for
perfect ing an appeal may not be ext ended for the purpose
of filing a motion for new trial or reconsiderat ion (Roque,
et al. vs. Gunigundo, Adm. Case No. 1664, Mar. 30, 1979;
Habaluyas Enterprises, Inc., et al. vs. Japzon, et al., G.R.
No. 70895, Aug. 5, 1985).
5. In view of the fact t hat the rulings in the foregoing

cases were based on the holding in Gibbs vs. Court of First
Instance (80 Phil. 160), and the Rules of Court did not
t hen expressly prohibit or allow an extension of the period
to file a motion for reconsiderat ion t hereby r esult ing in a
division of views on this issue in the appellat e courts, for
the guidance of the Bench and the Bar, the Supreme Court
rest at ed and clarified the rules on this point as follows:
"1.) Beginning one mont h after the pro mulgat ion of
this Resolut ion, the rule shall be strictly enforced t hat no
motion for ext ension of time to file a motion for new trial
or reconsiderat io n may be filed wit h the (lower courts).
Such a motion may be filed only in cases pending with
the Supreme Court as t he court of last resort, which may
in its sound discret ion eit her grant or deny the extensio n
request ed.
2.) In appeals in special proceedings under Rule 109
of the Rules of Court and in other cases wherein mult iple
appeals are allowed, a motion for extension of time to file
the record on appeal may be filed wit hin the reglement ar y
period of t hirt y (30) days [Moya vs. Barton, 76 Phil. 831 ;
Heirs of Nant es vs. Court of Appeals, July 25, 1983, 123
SCRA 753]. If the court denies the motion for extension,
the appeal must be t aken wit hin the original period [Bello
439
vs. Fernando, Jan . 30, 1962, 4 SCRA 185], inas much as

such a mot ion does not suspend the period for appea l
[Reyes vs. Sta. Maria, November 20, 1972, 48 SCRA 1].
The trial court may grant said motion after the expirat ion
of the period for appeal provided it was filed wit hin the
original period [Valero vs. Court of Appeals, June 28, 1973,
51 SCRA 467 ; B e r k e n k o t t e r vs. Co ur t of Appea ls ,
S e p t e m b e r 28 , 1973 , 53 SCRA 228] " (Habaluyas
Enterprises, Inc., et al. vs. Japzon, et al., Resolution on
Motion for Reconsideration, G.R. No. 70895, May 30,
1986, en banc; cf. Bacaya, et al. vs. IAC, et al., G.R. No.
74824, Sept. 15, 1986; Rodriguez, et al. vs. CA, et al, G.R.
No. 80718, Jan. 29, 1988).
The prohibit ion against a motion for extension of time
to file a motion for new trial or reconsiderat ion is now
specifically provided in the second par agraph of Sec. 3,
Rule 41 .
Sec. 9. Remedy against order denying a motion for new

trial or reconsideration. — An ord er d e n yi n g a mot i o n
for ne w trial or re c o n s i d e ra t i o n i s not ap p ealab le,
the remed y b ei n g a n ap p eal from the j u d g m e n t o r
final order, (n)
NOT E
1. See notes under Sec. 6 of t his Rule.
440
RULE 38
RELIEF FROM JUDG M EN TS , O RDERS,

OR OTHER PRO CE EDING S
S ect ion 1. Petition for relief from judgment, order,

or other proceedings. — When a j u d gm en t or final order
i s en t e re d , or an y ot h e r p r o c e e d i n g i s t h e rea ft e r
t ake n agai n s t a party in an y cou rt th rou g h fraud,
acci d en t , mi st ake , or e xcu s ab l e n e g li gen ce , he ma y
file a p et i t i o n in suc h cou rt and in the sam e cas e
p rayi n g that the j u d gm en t , order or p ro c e e d i n g be
set asi d e. (2a)
Sec. 2. Petition for relief from denial of appeal. —

When a j u d g m en t or final ord er is re n d ere d by an y
Cou rt in a cas e , an d a p art y t h e r e t o , by frau d ,
a c c i d e n t , m i s t a k e , o r e xc u s a b l e n e g l i g e n c e , ha s
been p re ve n t e d from t a ki n g an app eal, he ma y file
a p et it ion in suc h court and in the same case p rayi n g
that the app eal be gi ve n du e cou rse, (la )
NOTES
1. Secs. 1 and 2, alt hough now in transposed order,

are subst ant ially the same as t heir ant ecedent s but with
a subst ant ia l pr ocedural difference. While under the
former Rule pet it ions for relief from a judgment, final order
or ot he r pro ceed ing r e nder e d or t ake n in the t he n
municipal courts had to be filed and decided in the former
Courts of First Inst ance, such petit ion should now be filed
in and resolved by the court in the same case from which
the petit ion arose. Thus, the petition for relief from a
judgment, final order or proceeding involved in a case tried
by a municipal trial court shall be filed in and decided by
the same court in the same case just like the procedure
followed in the present Regional Trial Court.
441
This pr o c edur a l cha nge is a co nsequence of the

uniform procedure adopted for trial courts (Rule 5) and in
considerat ion of the fact t hat municipal trial courts are
a lr ead y co ur t s of record and , for t hat ma t t er ,
wit hexpanded jur isdict ion (see R.A. 7691; Mesina, et al. vs.
Meer, G.R. No. 146845, July 2, 2002).
2. A pet it ion for relief is an equit able remedy and is

allowed only in except ional cases from final judg ment s or
orders where no ot her remedy is available (Palmares,
et al. vs. Jimenez, et al., 90 Phil. 773). It will not be
ent ert ained when the proper remedy is appeal or cert iorari
(Fajardo vs. Bayona, et al., 98 Phil. 659).
3. The phrase "other proceeding" in Sec. 1 includes

an order or writ of execut ion (Aquino, et al. vs. Blanco,
et al., 79 Phil. 647; Cayetano vs. Ceguerra, L-18831,
Jan. 30, 1965), or an order dismissing an appeal (Medran
vs. CA, 83 Phil. 164). Since these are not required to be
ent ered, the period st art s from rendit ion of the order or
t aking of the proceeding or from the date of occurrence,
since ent r y i s e it he r unnec e s sa r y or inco nse qu e nt ia l
(Samonte, et al. vs. Samonte, et al., L-40683, June 27,
1975), and the court will merely set aside the proceeding
and allow t he part y to act as if the proceeding never took
place (see Rafanan vs. Rafanan, 98 Phil. 162; Bantug
vs. Roxas, 73 Phil. 13).
4. A p e t it io n for relie f is, in effect , a seco nd
opport unit y for an aggrieved part y to ask for a new trial
(Sayman vs. CA, et al, L-29479, Feb. 21, 1983). Hence,
fraud, acc ident , mist ak e or excusable negligence, as
grounds for a pet it ion for relief, have the same concepts
t hat they have in motions for new trial. Also, as in a
motion for new trial, a mist ake of law (especially where
the part y was of limit ed int elligence) was considered
sufficient to just ify a pet it io n for relief (Vasquez vs.
Mesagal, 100 Phil. 360).
442
RUL E 3 8 R E L I E F FRO M J U D G M E N T S , SE C . 3
ORDER S O R OTHE R PR O C EE D IN G S
5. A pet it ion for relief under Sec. 1 of this Rule has

bee n held to be a pp l i c a b l e to all k in d s of spec ia l
proceedings, such as land regist rat ion (Elvira vs. Filamor,
56 Phil. 305), int est at e set t lement (Reyes vs. Gonzales,
47 Phil. 339; Onas vs. Javilo, 54 Phil. 602) an d
guar dianship proceedings (Panis vs. Yangco, 52 Phil.
498).
S ec . 3. Time for filing petition; contents and

verification. — A p e t it io n p r o v i d e d for i n e it h e r of t he
p r e c e d i n g sect io n s of t hi s Rul e mu s t be ver ified, filed
w it h i n sixt y (60) da y s aft e r t he p e t i t i o n e r le a r n s o f
the j u d g m e n t , fina l o r d er , o r o t he r p r o c e e d i n g t o
b e se t as id e , an d no t mo r e t ha n six (6) m o n t h s aft e r
suc h j u d g m e n t o r final o r d e r wa s e nt e r e d , o r suc h
p r o c e e d i n g wa s t a k e n , an d mu s t b e a c c o m p a n i e d
wit h a ffida vit s s ho w i n g t he fr aud, a c c i d e nt , m i s t a k e ,
o r e xc u s a b l e n e g l i g e n c e r e l ie d upo n , an d t he fact s
c o n s t i t u t i n g t he p e t it io n e r ' s good an d s u b s t a n t i a l
caus e o f act io n o r de fe ns e , a s t he cas e ma y be . (3)
NOT E S
1. The two periods for the filing of a petit ion for relief
are not extendible and never int err upted (Quijano vs.
Tameta, L-16473, April 20, 1961). Thus, a pet it ion for
cert iorar i does not suspend the periods prescr ibed by
this section (Palomares vs. Jimenez, 90 Phil. 773), and
n e it h e r does a mo t io n for r e c o ns i d e r a t io n of the
order subject of the pet it ion for relief (Cruz vs. Oppen,
Inc., L-23861, Feb. 17, 1968), especially if filed in the
wrong court. These periods cannot be subject to a condition
or a contingency as they are devised to meet a condit ion
or a cont ingency (Vda. de Salvatierra vs. Garlitos, etc., et
al., 103 Phil. 157). Both periods must be complied with
(see Phil. Rabbit Bus Lines, Inc. vs. Arciaga, et al., L-
29701, Mar. 16, 1987).
443
RUL E 38 R E M E D I A L LAW COMPENDIU M SEC . 3
In one case (Balite vs. Cabangon, et al., L-24105,

May 18, 1967), it was held t hat a petit ion for relief filed
on the 65t h day from notice of the order, but wit hin 6
mont hs from the t aking of such proceeding, could be given
due course under the aut hor it y of Prudential Bank vs.
Macadaeg (105 Phil. 791) and Angola vs. Tan (106 Phil.
1164 fUnrep.J). It should be noted, however, t hat the
Balite case involved a proceeding in the t hen Court of
Agr ar ian Relat ions which was not bound by the technical
r ule s of pr o c e d ur e an d evide nce. F u r t h e r m o r e , no
judgment had been render ed as the proceeding arose from
a default order only. It was likewise point ed out t hat
Rule 38 should not apply to an int erlocutory order.
Also, in PHHC vs. Tiongco, et al. (L-18891, Nov. 28,
1964), while the pet it ion for relief was filed by the new
co u nse l for the d e f e n d a n t s be yo n d the 60-day
r egleme nt ar y period, the Supreme Court ordered the trial
court to give it due course since the original counsel of the
defendant s had deprived t hem of t heir day in court by his
"fishy and suspicious" act uat ions of abandoning their case
and wit hout even infor ming t hem of the adverse decision
against t hem. The Supreme Court also decided to consider
the pet it ion as one for relief not only from the judgment
but from the order of execut ion since Rule 38 also includes
relief from such orders, in which case said pet it ion was
filed wit hin 60 days from the order.
However, in a more recent case, the pet it ion for relief
was held to have been correct ly denied where it was filed
one day too late, t hat is, 61 days after pet it ioner ' s receipt
of t he not ice of the d is m i s s a l of the o r ig i na l act ion (Phil.
Rabbit Bus Lines, Inc. vs. Arciaga, et al., L-29701, Mar. 16,
1987). The special circumst ances obtaining in the first
two cases above ment ioned, which war r ant ed the relaxat ion
of the rule, were not present in this last stated case.
444
RUL E 3 8 R E L I E F FRO M J U D G M E N T S , SE C . 3
ORDER S O R OTHE R PR O C E ED IN G S
2. The 60-day period is reckoned from t he time the

part y acquir ed kno wledge of t he order, ju dg me n t or
proceedings and not from t he date he actually read the
same (Perez vs. Araneta, 103 Phil. Phil. 1141 fUnrep.J).
The 6-months period is computed from the date of
ent r y of t he order or judg ment , which, as it was t hen
defined in Sec. 2, Rule 36, was from the recording of the
judgment or order in the book of ent r ies of judg ment s and
not from the date of the order of default or the rendit ion
of the judgment or the finality of the judgment . However,
as now amended, the date of the finalit y of the judgme nt
or final order is deemed to be the date of its ent ry. Wit h
respect to the "proceedings" in t he Regional Trial Court s,
which can be the subject of petit ions for relief, the date
when the proceedings were taken controls (see Dirige vs.
Biranya, L-22033, July 30, 1966). Also, in judg me nt s
upo n c o mp r o m i s e , be in g i m m e d i a t e l y e x e c u t o r y ,
prescript ion runs from t he date of its rendit ion, hence the 6-
mo nt hs period also run s t her efro m (Bodiogran vs. Ceniza,
et al., 102 Phil. 750; Dirige vs. Biranya, supra).
3. . An affidavit of mer it s mus t acco mp a n y

the pet it ion and the pet it ion itself must be verified. As
in motions for new trial, the absence of an affidavit of
mer it s is a fat al defect and w a r r a nt s denial of the
pet it io n (Fernandez vs. Tan Tiong Tick, L-15877, April
28, 1961; Concepcion vs. Presiding Judge, etc., et al., L-
35489, Dec. 15, 1982), unless the facts required to be set
out in the affidavit of mer it s also appear in the verified
pet it ion (Fabar, Inc. vs. Rodelas, L-46394, Oct. 26, 1977).
Also, like motions for new trial, such affidavits are not
required when t he judgment or order is void for want of
jurisdict ion (Republic vs. De Leon, 101 Phil. 773), or was
obtained by fraud or mist ake (Lupisan vs. Alfonso, et al., 78
Phil. 842), or with denial of due process (Valerio vs. Tan,
etc., et al., 97 Phil. 558).
445
RUL E 38 REMEDIA L LAW COMPENDIU M S E C S . 4- 5
Sec. 4. Order to file an answer. — If the pet i t i on is

suffi cient in form and su b st a n c e to justify the relief,
the cou rt in wh i c h i t i s filed, shall i ssu e an order
req u i ri n g the ad ve rs e p a rt i es t o an swe r the same
wi t h i n fifteen (15) day s from the recei p t thereof. The
ord er shall be serve d in suc h man n er as the C o u rt
ma y d i r e c t , t o g e t h e r wi t h c o p i e s o f the p et i t i o n
and the a c co m p a n y i n g affidavits. (4a)
Sec. 5. Preliminary injunction pending proceedings.

— The Cou rt in wh i c h the p et i t i o n i s filed ma y grant
suc h p re l i mi n a r y i n j u n ct i o n as ma y be n ec es s a r y
for the p re s e r v a t i o n of the ri gh t s of the p art i es , upo
n the filing by the p et i t i on e r of a bond in favor of the
ad vers e party, con d i t i on e d that i f the p eti ti on i s
d i s m i s s e d or the p et i t i on e r fails on the trial of the
cas e upo n its me ri t s , h e will pa y the ad verse party all
d a m a g e s an d cost s that ma y be award e d to hi m by
rea so n of the i ssu an c e of suc h i nju n ct i on o r the
oth e r p ro c e e d i n g s fo l lo wi n g the p et it i on ; bu t suc h
i n j u n ct i o n shall not op erat e to d i s ch a rg e or
e xt i n g u i s h an y lien wh i c h the ad vers e party may
hav e acq u i re d upo n the p rop e rt y o f the p et it ioner.
(5a)
NOTES
1. Where a writ of execut ion was already issued and

levy was made before the pet it ion for relief was filed, the
lien t hat may have been acquired over the propert y is not
d is c har ge d by the s u b s e q u e n t issua nc e of a wr it of
pr e li minar y injunct io n. T her eaft er, if the pet it ion is
denied, the court has t he power to reinst at e the writ of
execut ion (Ayson vs. Ayson, 101 Phil. 1223 (Unrep.J).
2. Unless a writ of preliminar y injunct ion has been
issued, execut ion of the judgment shall proceed even if
44 6
RUL E 3 8 RE LIE F FRO M J U D G M E N T S , SEC . 6
ORDER S OR OTHE R PR O C EED IN G S
the order denying the pet it ion for relief is pending on

appeal. Said writ may be sought eit her in the trial or
appellate courts (Servicewide Specialists, Inc. vs. Sheriff
of Manila, et al., G.R. No. 74586, Oct. 17, 1986).
Sec. 6. Proceedings after answer is filed. — After

the filing of the an sw e r or the e xp i ra t i o n of the
period t h erefor, the cou rt shall hear the p et i t i on
an d i f aft e r s u c h h e a r i n g , i t fi n d s t h a t the
al legat i on s t h ereo f are not t rue, the p et i t i on shall
be d i smi s sed ; but i f i t finds said alle gat i on s to be
tru e, i t shall set asi d e the j u d gmen t , final ord er or
oth er p ro c e e d i n g comp l ai n e d o f upo n suc h t erm s
as may be just. Th ereaft er, the case shall stand as
i f suc h j u d g m en t , final order or ot her p ro c eed i n g
ha d n eve r bee n re n d e re d , i ssu e d o r t ak en . The
cou rt shall the n p roc eed to hear and d et e rm i n e the
ca s e as i f a t i m e l y m o t i o n for a ne w t ri a l or
re con s i d e ra t i o n had been gran t ed by it. (6a)
NOTES
1. There are two steps or hear ings in a petition for

relief: (a) a hear ing to det ermine whet her the judgment ,
order or proceeding should be set aside; and (b) in the
a f f ir m a t i ve , a h e a r i n g on the me r it s of the case
(Villanueva vs. Alcoba, 101 Phil. 277).
2. Failure to file an answer to the petit ion for relief
does not const it ut e default as, even wit hout such answer,
the court will still have to hear the petit ion and determine
its merits.
3. . An or de r g r a n t i n g a p et it io n for r elie f
is int erlocutory and non-appealable. On the other
hand, the former rule was t hat an order denying a
petition for relief was appealable and, in the course
thereof, the appellant may assail the judgment on the
mer it s (Sec. 2,
AA1
of the former Rule 41), and t hat appeal, not cert iorari or
prohibit ion, was the remedy when the petition for relief is
denie d (De Jesus vs. Domingo, et al., L-30006-07,
Aug. 31, 1970). Those doctrinal rules have already been
changed (see Note 2 under Sec. 6, Rule 37).
Sec. 7. Procedure where the denial of an appeal is set

aside. — Wh ere the d en i a l of an ap p eal is set aside,
the lowe r cou rt shall be req u i red to give due course
t o the a p p e a l an d t o e l e v a t e the re c o r d o f the
ap p eale d cas e as i f a t i mel y an d p roper ap p eal had
bee n mad e . (7a)
448
RULE 39
EXECUTION, SATISFACTION AND

EFFECTS OF JUDGMENTS
S e c t i o n 1. Execution upon judgments or final

orders. — E xe cu t i o n shall i ssu e as a matt er of right,
on mot i on, upo n a j u d gme n t or order that d i sp ose s
of the act ion or p ro ce ed i n g upo n the exp i rat i on of
the peri od to appeal t h e ref rom i f no appeal has been
duly p erfect ed, (la )
I f the a p p e a l ha s b ee n dul y p e rf e c t e d an d
finally re s o l v e d , the e xe c u t i o n ma y fo rt h w i t h be
ap p li ed for in the cou rt of origin, on mot ion of the
j u d g m e n t ob li gee , s u b m i t t i n g t h e re w i t h cert i fi ed
true cop i e s of the j u d gm en t or j u d g m en t s or final
order or ord ers sou gh t to be en forc e d and of the
ent ry thereof, wit h not i ce to the ad verse party.
The ap p e l lat e cou rt may, on mot ion in the same
case wh en , the i n t eres t of j u st i ce so req ui res, direct
the cou rt of origin to i ssu e the writ of execu t i on ,
(n)
NOTES
1. The t er m "final order" is used in two senses

depending on whet her it is used on the issue of appeal•
ability or on the issue of binding effect. For purposes of
appeal, an order is "final" if it disposes of the action, as
dist inguished from an interlocutory order which leaves
somet hing to be done in the trial court with respect to the
mer it s of the case (De la Cruz, et al. vs. Paras, et al., L-
41053, Feb. 27, 1976). For purposes of binding effect or
whet her it can be subject of execution, an order is "final" or
executory after the lapse of the reglement ar y period to
appeal and no appeal has been perfected (see Perez, et al.
449
vs. Zulueta, 106 Phil. 264; cf. Denso [Phil.], Inc. vs.
IAC, et al., G.R. No. 75000, Feb. 27, 1987; Montilla vs.
CA, et al., L-47968, May 9, 1988).
2. On the aspect of appealabilit y, t hese revised Rules
use the adject ive "final" wit h r espect to order s and
resolut ions since, to terminat e a case, the trial courts issue
orders, while t he appellat e courts and most of the quasi-
judicial agencies issue resolut ions. Judgme nt s are not so
qualified since t he use of the so-called int er lo cut o r y
judg ment s is not favored in t his jur isdict ion, while such
categorizat ion of an order or a resolut ion for purposes of
deno t ing t hat i t is appealable is to dist ingu is h t he m
from int erlocutory orders or resolut ions. However, by
force of ext ended usage, the phrase "final and executory
judg me nt " i s so met imes used and t o ler at ed, alt ho ugh
the use of "execut o r y" a lo ne would suffice. T hes e
o bser vat io n s also apply to the sever a l and sep ar at e
judg ment s cont emplat ed in Rule 36, or part ial judgment s
which totally dispose of a part icular claim or severable
part of the case, subject to the power of the court to suspend
or defer action on an appeal from or any further proceeding
in such special judgment , or as provided by Rule 35 on
the mat t e r of part ial su mmar y judgme nt s which are not
c o ns id e r e d as a p p e a l a b l e (see Sec. 4, Rule 35 an d
explanat ion t herein).
The second par agr aph of this section is an innovat ion
in response to complaint s over the delay caused by the
for mer procedure in obt aining a writ of execut ion of a
judg ment , which has already been affirmed on appeal,
wit h notice to the part ies. As t hings t hen stood, after the
ent ry of judgme nt in the appellat e court, the prevailing
part y had to wait for the records of the case to be remanded
to the court of origin when and where he could t hen move
for the issuance of a writ of execut ion. The int ervening
time could somet imes be subst ant ial, especially if the court
a quo is in a remote province, and could also be availed of
by the losing part y to delay or t hwart actual execut ion.
450
RUL E 3 9 E X E C U T I O N , S A T I S F A C T I O N AN D SE C 1
EFFEC T S O F J U D GM E N T S
On these considerat ions, the Supreme Court issued

Cir cular No. 24-94, dat ed April 18, 1994, appro ving
and pr o mulgat ing in advance t his ame nded Sect ion 1
of Rule 39 an d d e c la r i n g the sam e effect ive as of
Jun e 1, 1994.
Under the present procedure, the prevailing part y can
secure certified t rue copies of the judgment or final order
of the appellat e court and entry thereof, and submit the
same to the court of origin with and to justify his motion
for a writ of execut ion, wit hout wait ing for its receipt of
the records from the appellate court. That motion must
be wit h notice to the adverse part y, wit h a hearing when
the circumst ances so require, to enable him to file any
objection t heret o or bring to the attent ion of said court
mat t er s which may have t ranspired dur ing the pendency
of t he appeal and which may have a bear ing on t he
execut ion sought to enforce the judgment .
The t hird paragr aph of this sect ion, likewise a new
provisio n, is due to the exper ience of t he app e l la t e courts
wherein the t rial court, for reasons of its own or ot he r
unjust if ia ble c ir cu mst a nc e s , unduly dela ys or
unr easonably refuses to act on the motion for execut io n
or issue t he writ t herefor. On motion in the same case
while the records are still with the appellat e court, or even
after the same have been remanded to the lower court,
the appellat e court can direct the issuance of the writ of
execut ion since such act is merely in the enforcement of
its judgment and which it has the power to require.
3. Sec. 1 is the rule on when judgment s or orders
may be executed as a mat t er of right, t hat is, it becomes
the mandatory or minist er ial duty of the court to issue a
writ of execut ion to enforce the judgment . This happens
when t he judg me nt becomes executory (Far Eastern
Surety & Insurance Co., Inc. vs. Vda. de Hernandez, et al. L-
30359, Oct. 16, 1975). Under Sec. 2, execut ion may issue
in the discret ion of the court even before the lapse of
451
the period to appeal, t hat is, even before the judg ment or
order has become executory.
When execut ion is a mat t er of right, the judgment
debtor need not be given advance notice or prior hear ing
of such motion for execut ion (Pamintuan, et al. vs. Muhoz,
et al., L-26331, Mar. 15, 1968; Far Eastern Surety &
Insurance Co., Inc. vs. Vda. de Hernandez, et al., supra;
Development Bank of Rizal vs. CA, et al., G.R. No. 75964,
Dec. 1, 1987). An ex parte motion for the issuance of the
writ would suffice since the t rial court may t ake judicial
notice of the record of the case to det ermine the propriet y
of the issuance thereof. However, where the losing part y
shows t hat subsequent facts had t aken place which would
render execut ion unjust, a hear ing on the motion should
be held (Luzon Surety Co. vs. Beson, L-26865-66,
Jan. 30, 1976).
4 . Wher e t he j u d g m e n t o r o r de r ha s beco me
executory, the court cannot refuse to issue a writ of
execut ion, except:
(a) Whe n s u b s e q u e n t fact s an d c i r c u m s t a n c e s
t r a n s p i r e whic h r e n d e r suc h e xe c u t io n u n ju s t o r
impossible, such as a supervening cause like the act of the
Co m m is s io ne r of Civil S er vice find ing the pla int iff
administ rat ively guilt y and which const it ut ed a bar to his
r e inst at eme nt as ordered by the t rial court in a civil case
(Butuan City vs. Ortiz, et al, L-18054, Dec. 22, 1961), or
where the defendant bank was placed under receivership
(Lipan vs. Development Bank of Rizal, G.R. No. 73884,
Sept. 24, 1987);
(b) On equitable grounds, as when t here has been
a c ha ng e in the s i t u a t i o n of t he p a r t i e s whic h make
s exe cut io n ine q u it a b l e (Albar vs. Carandang, L-18003,
Sept. 29, 1962; Heirs of Pedro Guminpin vs. CA, et al,
L-34220, Feb. 21, 1983; Luna vs. IAC, et al, G.R. No.
68374, June 18, 1985);
452
RUL E 3 9 EXE CUTIO N , SATI SF ACTIO N SE C 1
AN D E F F E C T S O F J U D G M E N T S
(c) Where the judgment has been novated by the

part ies (Fua Cam Lu vs. Yap Fauco, 74 Phil. 287; cf.
Zapanta vs. De Rotaeche, 21 Phil. 154; Salvante vs. Cruz,
88 Phil. 236; Dormitorio vs. Fernandez, et al., L-25889
Aug. 21, 1976);
(d) When a petition for relief or an action to enjoin
the judg me nt is filed and a preliminar y injunct ion is
prayed for and grant ed (see Sec. 5, Rule 38);
(e) When t he judgme nt has become dormant, the 5-
year period under Sec. 6 of this Rule having expired
wit hout the judgment having been revived (Cunanan vs.
CA, et al., L-25511, Sept. 28, 1968); or
(f) Where the judgment t urns out to be incomplete
(Del Rosario vs. Villegas, 49 Phil. 634; Ignacio, et al. vs.
Hilario, et al., 76 Phil. 605) or is condit ional (Cu Unjieng,
etc. vs. Mabalacat Sugar Co., 70 Phil. 380) since, as a
mat t er of law, such judgment cannot become final.
5. Quashal of a writ of execut ion is proper when

(a) it was improvident ly issued; (b) it was defective in
subst ance; (c) it is issued against the wrong part y; (d) the
judgment was already satisfied; (e) it was issued wit hout
aut hor it y; (f) a change in t he sit uat ion of the part ies
renders execution inequitable; and (g) the controversy was
never validly submitted to the court (Cobb Perez vs. Lantin, L-
22320, May 22, 1968; Sandico, et al. vs. Piguing, et al.,
L-26115, Nov. 29, 1971). The same remedy is also available
where the writ of execut ion varies the t erms of the
judgment , or where it is sought to be enforced against
pr o per t y e xe mp t from execut io n or wher e t her e i s
ambiguit y in the terms of the judgment. Ult imately, these
defects may also be challenged on appeal or in cert iorari,
prohibit ion or mandamus actions (Limpin, et al. vs. IAC,
et al., G.R. No. 70987, Jan. 30, 1987).
Where t her e is subst ant ia l var iance between the
judgment and the writ of execution issued to enforce the
453
same, said writ is a nullit y (Malacora, et al. vs. CA, et al.,

G.R. No. 51042, Sept. 30, 1982, and cases t herein cited).
6. After judgme nt has become executory, the court
cannot amend the same, except:
(a) To make correct ions of clerical errors, mist akes
or omissions (Phil. Engineering Corp. vs. Ceniza, L-17834,
Sept. 29, 1962; Presbitero vs. CA, et al., L-34241,
May 28, 1984), as by an amend me nt nunc pro tunc, but
subst ant ial changes cannot be effected by a nunc pro tunc
a me nd me n t (Maramba vs. Lozano, L-21533, June 29,
1967);
(b) To clarify an ambiguit y which is borne out by
and just ifiable in t he context of the decision (Lacson vs.
Paredes, 63 Phil. 87), especially if t he part ies acquiesced
t heret o (Orbase, et al. vs. Nocos, et al., G.R. No. 70603,
May 30, 1986); or
(c) In ju d g me nt s for suppo rt , which can always
be amended from t ime to time, in light of the circum•
st ances of the part ies (Florendo vs. Organo, 90 Phil. 483;
cf. Canonizado vs. Benitez, etc., et al., L-49315 and
G.R. No. 60966, Feb. 20, 1984).
7. The remedies against a judg ment or order which
has become executory are (a) a pet it ion for relief under
Rule 38, (b) a direct at t ack against the judgment , or (c) a
collat eral att ack against the judgment .
a. A direct at t ac k against t he judg me n t is made
t hrough an action or proceeding the main object of which
is to annul, set aside, or enjoin the enforcement of such
judgment , if not yet carried into effect; or if the propert y
has been disposed of, the aggr ieved par t y may sue for
its recovery (Banco Espahol-Filipino vs. Palanca, 37 Phil.
921). Such judgme nt may be annulled on the ground of
lack of jurisdict ion, fraud or t hat it is contrary to law, in
an action brought for said purpose and on any of these
gr o und s (Panlilio, et al. vs. Garcia, et al., L-29038,
454
RUL E 3 9 E X E C U T I O N , S AT I S F AC T I O N SEC . 1
Dec. 27, 1982), since said judgment is void as a consequence

in whole or in par t (Agustin vs. Bocalan, L-46000,
Mar. 18, 1985). This is necessary where a judgment does
not, on its face, reveal the nullit y or the fact that it is
vit iated by fraud (Cadano vs. Cadano, L-34998, Jan. 11,
1973). See, however, Rule 47 and the notes t hereunder.
A collateral or incidental att ack is made when, in
anot her action to obtain a different relief, an att ack on
the judgment is made as an incident in said action. This
is proper only when i t is pat ent t hat the court which
rendered said judgment had no jur isdict ion (see Reyes, et
al. vs. Barreto-Datu, 94 Phil. 446; Resensons, Inc., et al.
vs. Jimenez, et al., L-41225, Nov. 11, 1975; Macabingkil
vs. PHHC, et al., L-29080, Aug. 17, 1976).
b. In an action to annul a judgment on the ground
of fraud, the fraud must be extrinsic, i.e., as the means
wher e b y j u d g me n t wa s pro cur ed, such as wher e i t
prevent ed a part y from having a trial or from present ing
all of his case to the court (Asian Surety & Insurance Co.,
Inc. vs. Island Steel, Inc., et al, L 31366, Nov. 15, 1982)
and which affects and goes into the jurisdiction of the court
(Avendana, et al. vs. Bautista, et al, G.R. No. 52092,
April 8, 1986). The extrinsic fraud for annulment of a
judg ment is one co mmit t ed by t he adverse part y, not
by plaint iff' s own counsel who misled said plaint iff
(Sanchez vs. Tupas, et al, G.R. No. 76690, Feb. 29, 1988).
Intrinsic fraud, or t hat found in the cause of action or
mat t er put in issue and presented for adjudicat ion, is not
a ground for annulment of judgment (Cordovis, et al. vs.
Obias, et al, L-24080, April 26, 1968). The same
procedure as in Rule 38, i.e., a hearing to first determine
whet he r the judg me nt is to be set aside, and in the
affirmative, a trial on the merits, should be followed in
the Court of F ir s t I nst ance (Siyangco vs. Costibolo, L-
22506, Feb. 28, 1969). See the procedure as now outlined
by Rule 47.
455
It was previously held t hat such action to annu l the

judg ment must be inst it ut ed in the very same court and
sala which render ed the judgme nt (Mas vs. Dumaraog, L-
16252, Sept. 29, 1964; Sterling Investment Corp. vs.
Ruiz, L-30694, Oct. 31, 1969) and wit hin 4 year s from discovery
of the fraud (Anuran vs. Aquino, 38 Phil. 29; Art. 1146,
Civil Code; Arellano vs. CFI of Sorsogon, et al., L-34897, July
15, 1975). However, in Dulap, et al. vs. CA, et al. (L-
28306, Dec. 18, 1971), it was held t hat any Co urt of Fir s t
I nst a nc e or br a nc h t her eo f can t ak e cognizance of such
action to annul a final judgment . This was r eit erat ed in
Gianan vs. Imperial, et al. (L-37963, Feb . 28 , 1974),
Francisco vs. Aquino ( L- 33235 - 56 , July 2, 1976) and
Singson, et al. vs. Saldajeno, et al. (L-27343, Feb. 28, 1979).
However, under B.P. Blg. 129, the I nt er mediat e Appellat e
Court (now, Court of Appeals) has exclusive original
jur isdict ion in act ions to annul the judgme nt of Regional
Trial Court s (Sec. 9[2J), and the Regional Trial Court s ret ain
t heir jur isdict io n to annul judg ment s of inferior court s in
the region (Sec. 19[6J).
c. An act io n to a nnu l a j u d g m e n t t he r e t o fo r e
rendered by a Regional Tr ial Court, and reversed by the
Court of Appeals whose decision has become final, is wit hin
the exclusive original jur isdict io n of the Court of Appeals,
pur suant to Sec. 9, B.P. Blg. 129. While the judgme nt
be in g c ha l le ng e d may hav e been t hat of the Co urt of
App e a ls , i t wa s a ct ua l l y an a p p e l l a t e ju d g m e n t
rendered on a review of the trial court's decision. Said
action for annu l me nt could not be filed in the Supreme
Court since factual issues of alleged extrinsic fraud, relied
on for the annu lme nt sought, are not within its jurisdict ion
to resolve (Conde, et al. vs. IAC, et al., G.R. No. 70443,
Sept. 15, 1986).
d. An act ion to annul a judgment is not necessarily
l i m it e d t o t ho s e p r i n c i p a l l y o r s e c o n d a r i l y bo un d
t her eunder. Any person adversely affected t hereby can
enjoin its enforcement and have it declared a nullit y on
456
RUL E 39 E X E C U T I O N , S A T I S F AC T I O N SEC . 2
the ground of ext r ins ic fraud and collusion used in

o bt aining such ju dg me n t (Militante vs. Edrosolano,
et al, L-27940, June 10, 1971).
Sec. 2. Discretionary execution.—

(a) Execution of a judgment or final order pending
appeal. — On moti on of the p revai li n g party wit h
notice to the ad verse party filed in the trial cou rt
wh i l e i t ha s j u ri s d i c t i on ove r the cas e and i s in
p osses si on of either the original record or the record
on app eal, as the case may be, at the time of the
f i l i n g o f su c h m o t i o n , sai d C o u rt may , i n it s
d i scret i on, order e xe cu t i o n of a j u d gmen t or final
order eve n before the exp i rat i on of the period to
app eal.
After the trial cou rt has lost j u ri sd i ct i on , the
mot ion for exe cu t i o n p end i n g appeal may be filed
in the app ellat e court.
Di sc ret i on a ry e xe c u t i o n may only issue upo n
good reason s to be stated in a special order after
due h earin g.
(b) Execution of several, separate or partial
judgments. — A several, separate or partial j u d gmen t
ma y b e e x e c u t e d U N D E R the sam e t e r m s an d
con d i t i on s as exe cu t i o n of a j u d gmen t or final order
p en d i n g appeal. (2a)
NOTES
1. This section was amended to make it clear t hat

discret ionary execution may be granted by the trial court
while it has jur isd ict io n over the case and is still in
possession of the original record thereof or the record on
appeal in those instances where the latter is required. The
latt er aspect follows the former rule t hat the motion for
discret ionary execution and the special order grant ing the
same shall be included in the record on appeal.
457
If the t rial court has lost jurisdict ion over the case by
reason of the perfect ion of the appeal from the judgment
t herein, the motion for execut ion pending appeal may be
filed in the appropriat e appellat e court to which the original
record or the record on appeal shall have consequent ly
been elevated.
2. In eit her inst ance, and w het her it is a regular
judgment or a special judgment such as a several, separat e
o r p a r t ia l j u d g m e n t , the sam e p r o c e d u r e an d the
r equir eme nt of a special order st at ing good reasons for
the discret io nar y execut ion shall be observed. See Note 3
under Sec. 4 of t his Rule, infra.
3. The Court of Appeals, has no aut horit y to issue

immediat e execut ion pending appeal of its own decisions
t her e in . D iscr et io nar y execut io n i s allo wed pend ing
appeal of a judgment or final order of the trial court, upon
good reasons to be st at ed in a special order. A judg ment
of the Court of Appeals cannot be executed pending appeal.
Once final and executory, the judg ment on appeal must
be r e ma nd e d to the lower court , wher e a mot ion for
execut ion may be filed only after its entry (Heirs of Justice
J.B.L. Reyes, etc., et al. vs. CA, et al., G.R. Nos. 135180-81
and 135425-26, Aug. 16, 2000).
This should not be confused wit h the pro cedur e
outlined in the second par agr ap h of Sec. 2(a) of the Rule
which governs discret ionar y execut ion of the decision of
the Regional Trial Court which is on appeal in the Court
of Appeals and the trial court has already lost jurisdict ion
over the case.
Sec . 3. Stay of discretionary execution. — Di s •

c re t i o n a r y e xe c u t i o n i ssu e d UNDER the p re c e d i n g
sect i o n ma y be st aye d upo n ap p roval by t he proper
cou rt of a su ffici ent s u p e rs e d e a s bond filed by the
party agai n s t wh o m i t i s d i rect ed , con d i t i on e d upon
the p e rfo rm a n c e of the j u d gm en t or order al low e d
458
RUL E 39 EXE CUTIO N , SATI SF ACTIO N SEC . 4
to be execu t e d in case i t shall be finally su st ai n ed

in whol e or in part. The bond thu s gi ven may be
p ro c e e d e d agai n s t o n mot i o n wit h n ot i c e t o the
su rety. (3a)
NOTES
1. . This is vir t ua l l y the same as in t he

for mer procedure except t hat, with the clarification
earlier noted r egarding the power of eit her the court
a quo or the appellat e court to allow discret ionary
execut ion under the r equir eme nt s in the preceding
section, the procedure for the stay t hereof when sought
in eit her court and the liabilit y of the supersedeas bond
shall be the same.
2. In American law from which our procedure hereon

was t aken, a supersedeas is an auxiliary process designed
to super sede enforcement of a tr ial court ' s judg me nt
brought up for review, and its application is limited to the
judgment from which an appeal is taken (Mascot Pictures
Corp. vs. Municipal Court of City of Los Angeles, 3 Cal.
App. 2d 559, 40 P. 2d 272). In modern pract ice, the term
is used synonymously with a "stay of proceedings," and
designat es the effect of an act or proceeding which in itself
suspended the enforcement of a judgment (Dulinvs. Coal
Co., 26 Cal. 306, P. 123).
3. See, in this connection, Note 3 in the preliminar y

considerat ions of Provisional Remedies, infra, regarding
the fixing of the lifet ime of bonds in civil act ions or
proceedings (A.M. No. 03-03-18-SC, effective Sept. 1,
2003).
Sec . 4. Judgments not stayed by appeal. —

Ju d g m en t s in act i on s for injunction, re cei ve rsh i p ,
ac cou n t i n g and support, and such other j u d gmen t s
as are no w or ma y h e re a f t e r be d e c la re d to be
i mmed iat ely execut ory, shall be enforceab le after
459
RUL E 39 R E M E D I A L L AW COMPENDIU M SE C 4
t hei r ren d i t i o n and shall not be stayed by an appeal

t a k e n t h e r e f r o m , u n l e s s o t h e r w i s e o rd e r e d b y
the trial cou rt. On app eal t h eref rom, the ap p ellat e
C o u rt i n it s d i s c r e t i o n ma y m a k e a n o rd e r
s u s p e n d i n g , mod i fyi n g, re s t o ri n g or g ran t i n g the
i n j u n ct i o n , re c e i v e rs h i p , acco u n t i n g , or awar d of
su pp ort.
The stay of e xe c u t i o n shall be upo n suc h terms
as to bond or ot h e rwi s e as may be con s i d e re d p rop er
for the secu ri t y or p rot e ct i o n of the ri gh t s of the
ad vers e party. (4a)
NOTES
1. Generally, only judg me nt s and final orders or

resolut ions may be executed. The exceptions are orders
grant ing support pendente lite which can be executed even
if the main case is still pend ing (Sec. 4, Rule 61), and
orders in injunct ion, receivership and account ing cases.
Wit h respect to the latt er, however, t his amended Sec. 4
co nt e mp lat e s t hat such dir ect ives are p u r s u a nt to a
judgment , unlike the former section which referred to "a
judg ment or order direct ing an account ing in an action."
For t hat ma t t er , suppo r t pendente lite is co nt a ined
generally in an interlocutory order and not a judgment .
Thi s i mp r e c i s io n in t e r m i no lo g y may, ho we ver , be
disregarded, the import ant considerat ion being t hat these
reliefs, as well as ot hers as may hereaft er be so provided,
shall be enforceable upon t heir rendit ion and shall not be
st ayed by an appea l t aken t herefrom, unless otherwise
ordered by the court.
2. Also, as a rule, execut ion shall issue only if the

judgment has become executory, t hat is, no motion for new
trial or reconsiderat ion has been filed, nor has an appeal
or cert ior ar i proceeding been t ake n therefro m. Some
j u d g m e n t s , ho wever , ar e i m m e d ia t e l y e xecut o r y by
provision of the Rules, even if an appeal has been taken
460
RUL E 39 E X E C U T I O N , S AT I S F AC T I O N SEC . 4
therefrom. Thus, under this section, judgment s in actions

for injunct ion, receivership, account ing and support are
immediately executory and not stayed by an appeal, unless
ot herwise o rder ed. The same is t ru e in the case of
ju d g me nt s of inferior court s for the eject ment of the
defendant (Sec. 19, Rule 70).
Hence, it has been held t hat appeal does not stay the
exe cut io n of a ju d g me n t decr ee ing disso lut io n of a
preliminar y injunction (Aguilar vs. Tan, et al., L-23600,
Jan. 30, 1970). This rule on the immediate execut ion of
a judgment in an injunct ion case does not apply, however,
to a judgment in an action for prohibit ion (Embroidery &
Apparel Control & Inspection Board vs. Cloribel,
June 20, 1967).
3. . A ju dg me n t in an act ion wher e in

account ing is ordered, as a pr imar y or incident al relief,
is a final and a p p e a la b l e j u d g m e n t (Miranda vs.
CA, et al., L-33007, June 18, 1976; Hernandez vs. CA,
et al., G.R. Nos. 61420-21, Feb. 22, 1983 and cases therein
cited). The general rule in part it ion t hat an appeal will
not lie unt il the part it ion and dist ribut ion proceedings
are terminat ed does not apply where the appellant
claims exclusive ownership of the whole property and
denies the adverse par t y' s r ight to any p ar t it io n
(Garbo vs. CA, et al., L-39384, June 22, 1984).
4. Even before the judgment has become executory

and before appeal was perfected, the court, in its discretion,
may order execut ion upon good reasons to be st at ed in a
special order, such as:
(a) Where the lapse of time would make the ultimat e
j u d g m e n t ine ffect ive, a s wher e the de bt o r s wer e
wit hdrawing t heir business and assets from the country
(Scottish Union & National Insurance Co., et al. vs.
Macadaeg, et al., 91 Phil. 891);
461
(b) Where the appeal is clearly dilatory (Rodriguez,

et al. vs. CA, et al., 105 Phil. 777; De Vera vs. Santos, L-
24351, Sept. 22, 1977);
(c) Wher e the ju d g m e n t i s for suppo r t and t he
beneficiary is in need thereof (Javier vs. Lucero, et al.,
94 Phil. 634);
(d) Where t he art ic les subject of t he case would
det er iorat e (Federation, etc. vs. NAMARCO, L-17819 and L-
17768, Mar. 31, 1962), hence, under Sec. 15(a) of this Rule,
the court can just fix the t ime for notice of execut ion sale of
perishable propert y;
(e) Where defendant s are exhaust ing t heir income
and have no ot her propert y aside from the proceeds from
the subdivision lots subject of the act ion (Lao vs. Mencias, L-
23554, Nov. 25, 1967);
(f) Where the judgment debtor is in imminent danger
of insolvency (Santos vs. Mojica, L-24266, Jan. 24, 1969)
or is act ually inso lvent (Padilla, et al. vs. CA, et al., L-
31569, Sept. 28, 1973);
(g) Where the prevailing part y is of advanced age
and in a precar ious st at e of healt h, and the obligat ion in
the judg me nt is no n-t ransmiss ible, being for support (De
Leon, et al. vs. Soriano, et al., 95 Phil. 806; cf. Far East
Bank, etc. vs. Toh, Sr., et al, G.R. No. 144018, June 23,
2003);
(h) Where t here is uncont radict ed evidence showing
t hat, in order to house machiner ies which they were forced
to place on a public st reet, movant s were in ext reme need
of the pr emises subject of the suit and the possession
whereof was adjudged to t hem in t he t rial court's decision,
and the corresponding bond to answer for damages in case
of rever sal on appeal had been posted by t hem (Lu vs.
Valeriano, G.R. No. 51001, Jan. 18, 1982); or
(i) Where the case involved escrow deposit s and the
pr eva i l ing par t y post s sufficient bond to answe r for
462
da ma g e s in case of r ever sa l of t he ju dg me n t (Hda.

Navarra, Inc. vs. Labrador, et al., 65 Phil. 536; cf. PVTA
vs. Lucero, et al., L-32550, Oct. 27, 1983).
(1) Ho wever, in Belfast Surety & Insurance
Co., Inc. vs. Solidum, et al. (CA-G.R. No. 40304-R,
Nov. 4, 1970, 67 O.G. No. 36, p. 7034), the Court
of Appeals held t hat the mere filing of a bond is not
a good reason for the execution of a money judgment
pending appeal. It dist inguished this sit uat ion from
the Navarra case wherein the money was deposited
with the bank in escrow, hence its wit hdrawal under
the securit y of a bond filed by the prevailing part y
would not result in any damage to the depositor.
(2) T her ea ft er , in Roxas vs CA, et al. (G.R.
No. 56960, Jan. 28, 1988), the Supreme Court clarified
its decisions wherein some st at ement s made t herein
gener at ed the percept ion t hat the filing of a bond
by the successful part y is a good reason for ordering
execut ion pending appeal, by calling att ent ion to the
factual context in which such orders were allowed.
T hus , in City of Manila vs. CA, et al. (L-35253 ,
Jul y 26, 1976), t he Cit y of Manila had obt ained
judgment for recovery of a parcel of land it had lent
to the Metropolit an Theat er. Since said defendant
was insolvent and there was imminent danger t hat
its creditor would foreclose the mortgage t hat it had
t he r e t o fo r e c o n s t i t u t e d o n the p r o pe r t y , such
c ir c u ms t a nc e s impe lled t he gr an t of im me d iat e
execut io n and the r e qu ir e me n t of a bond by the
p la int if f wa s impo sed mer ely as an add it io na l
measure for the protection of defendant 's creditor. In
Hda. Navarra, Inc. vs. Labrador, et al., supra, the
special reason for immediate execution, and not merely
the posting of a bond, was to insure its receipt by the
part y obtaining a favorable judgment in the civil case
t herein, and the posting of a bond for delivery of said
proceeds secures such receipt by the prevailing part y.
463
In People's Bank & Trust Co. vs. San Jose, et al. (96
Phil. 895), immediat e execut ion was allowed for the
pa yme nt of support of an heir of t he est at e under
administ r at io n, and his urgent need therefor, not the
filing of the bond, was the par a mo u nt considerat ion
for such order. To consider the mere post ing of a bond
as a "good r e a s o n " for i m m e d i a t e e x e c u t io n of
judg ment s pending appeal would become rout inar y,
o r the rul e r a t he r t ha n the e xcept io n, and t his
sit uat ion is not cont emplat ed or int ended in the Rules.
5. . While inso lve nc y of the j u d g m e n t debt o r

or im m ine n t dange r t her eo f has been considered a
good reason for discret ionary execut ion, t hat rule does not
apply wher e, assu min g t hat one of the judg me n t
debt or s is insolvent , the ot her judgme nt co-debtor is not
and, under the t er ms of the judg ment , the liabilit y of
the lat t er is eit her subsidiar y to or solidary with the
former (Philippine National Bank vs. Puno, et al.,
G.R. No. 76018, Feb. 10, 1989).
6. Cert iorari lies against an order grant ing execut ion

pending appeal where the same is not founded upon good
reaso ns. The fact t hat the losing part y had also appealed
from the judg me nt does not bar the cer t iorar i proceed•
ings as the appeal could not be an adequat e remedy from
such pr e mat ur e execut ion (Jaca vs. Davao Lumber Co., L-
25771, Mar. 29, 1982).
The dismissal of the special civil act ion for cert iorari
assailing t he order a quo dir ect ing execut ion pending
appeal of a specific port ion of t he jud g me n t does. not
preclude eit her the appellant from appealing the ent iret y
of the judg ment or the same appellat e court from passing
upo n t he me r it s o f t he e nt ir e a p p e a l e d j u d g m e n t
(Silverio vs. CA, et al., L-39861, Mar. 17, 1986).
7. To prevent execut ion pending appeal, the losing

part y must post a supersedeas bond to answer for such
464
RUL E 39 EXE CUTIO N , SATI SF ACTIO N SE C 4
damages as may be awarded by the appellate court or for

the performance of the judgment appealed from in case of
affirmance on appeal. However, the filing of supersedeas
bond does not entitle the judgment debtor to the suspension
of execut ion as a mat t er of right (NAW ASA vs. Catolico, L-
21705 and L-24327, April 27, 1967; City of Manila vs.
CA, et al., L-35253, July 26, 1976). Hence, where the needs
of the prevailing part y are urgent, the court can order
immediate execut ion despite such supersedeas bond (De
Leon, et al. vs. Soriano, supra).
8. The motion for immediate execut ion must be filed

before the court approves t he record on appea l and,
formerly, the appeal bond, where such were required,
bec ause upon such appr o va l, the appeal i s deemed
perfected and the trial court loses jurisdict ion over the
subject matt er, except to issue orders for the protection
and pr eser vat io n of the r ight s of the part ies (Sec. 9,
Rule 41; De Leon vs. De los Santos, 79 Phil. 461). An
order for immediat e execution is not within the exception
as it affects the r ight s of the part ies which are to be
det ermined on appeal (Abrasaldo, et al. vs. Fernandez, et
al., 97 Phil. 964). As implied in the former Sec. 2, a special
order for immediat e execut ion must be included in the
record on appeal, thereby presupposing that the record
on appeal has not yet been approved. However, these
consideration do not apply to the issuance and enforcement
of alias writs where the original writ had been issued prior
to the approval of the record on appeal and appeal bond
(NCBNY vs. Tiaoqui, 100 Phil. 1104).
Since under B.P. Blg. 129 appeal is now generally
taken by merely filing a notice of appeal, it was then held
t hat the motion for immediate execution should be filed
before the notice is filed and the appeal given due course
by the trial court, the perfection of appeal in such case
being the lapse of the last day for all parties to appeal
(Sec. 23, Interim Rules). See Universal Far East Corp.
466
vs. CA, et al. (G.R. No. 64931, Aug. 31 , 1984) holding t hat
as long as such mot ion is filed before the appeal is
perfected, the writ may issue after the period for appeal.
In Yabut vs. IAC, et al. (G.R. No. 69208 ,
May 28, 1986), respondent s received a copy of t he decision
on July 23, 1984, and t hey appealed the following day.
Pet it io ner, on the other hand, received his copy of said
decision on July 20, 1984 and filed a motion for execut ion
pe nd i n g appea l on Jul y 25 , 1984. Said mot ion was
seasonably filed as the appeal of the respondent was not
perfected on the day they filed t heir notice of appeal but
on the expirat io n of the last day to appeal, which was
Augu s t 7, 1984 (cf. Montelibano vs. Bacolod-Murcia
Milling Co., Inc., G.R. No. 69800, May 7, 1985; Belgado
vs. IAC, et al., G.R. No. 74975, Jan. 12, 1987). See,
ho wever , the a m e n d e d Sec. 9 of Rul e 41 wit h the
mo d if ic at io ns an d c la r i f ic at io n s o n thi s m a t t e r , as
explained t herein.
9. . Wher e from the decision of an d t he

evidence pr esent ed before the trial court, the judgment
creditor is clearly ent it led to act ual damages, the same
can be the subject of execut ion pending appeal, but not
the other awards for moral and exemplary damages and
attorney' s fees (RCPI vs. CA, et al., G.R. No. 59311, Jan.
31, 1985;
Engineering Construction, Inc. vs. NFC, L-34589,
June 29, 1988).
10. The suret y is charged under the super sedeas bond

upon the t er minat io n of the case on appeal and the bond
may be execut ed on mot ion, unlike t he procedur e for
recovery of damage s from bonds in at t a c h m e n t or in•
junct ion which is governed by Sec. 20, Rule 58 (Apacheche,
et al. vs. Rovira, et al., L-28454, May 18, 1978).
11. . An order for execut ion of a ju dg me nt
pending appeal can be enforced on a co unt er- bo nd
which was posted to lift the writ of preliminar y
at t achme nt issued by
466
the trial court. Secs. 5 and 12 of Rule 57 provide t hat

said counter-bond shall respond for any judgment in the
action and not only for a final and executory judgment
(Phil. British Association Co., Inc. vs. IAC, et al., G R
No. 72005, May 29, 1987).
Sec. 5. Effect of reversal of executed judgment. —

Where the execu t e d j u d gmen t i s reversed totally or
partially, or an n u lled , on appeal or ot h erwi s e, the
trial Cou rt may, on mot i on , issu e suc h ord ers of
re st i t u t i on or rep arat i on as equity and ju st i ce may
warran t u nd er the ci rc u m st an ce s. (5a)
NOTES
1. This section has been amended to include within

its purview the situat ion wherein the judgment was not
only reversed but actually annulled (see Rule 47) and to
pr o vide, by way of relief, for eit he r r e s t it ut io n or
reparat ion.
2. On reversal, the property itself must be returned
to the judgment debtor, if the same is still in the possession
of the judgment creditor, plus compensat ion to the former
for the deprivat ion and use of the property. This can be
effected by motion to the trial court.
3. If rest it ut ion is not possible, then compensat ion
should be made as follows:
a. If the purchaser at the public auction was the
judg ment creditor, he must pay the full value of the
propert y at the time of its seizure, plus int erest thereon;
b. If the pur chaser at public auct ion was a third
person, t he judg ment creditor must pay the judgment
debtor the amount realized from the sale of said property
at the sheriffs sale, with interest thereon; and
467
c. If the judgme nt award was reduced on appeal,

the judg ment creditor must r et ur n to the judgment debtor
only t he excess which he received over and above t hat to
which he is ent it led under the final judgment, with int erest
on such excess (Po Pauco vs. Tan Juco, 49 Phil. 349).
Sec. 6. Execution by motion or by independent

action. — A final and e xe c u t o r y j u d gm en t or ord er
ma y be e xe c u t e d on mot i o n wi t h i n five (5) year s
from the dat e of its ent ry. After the lap se of such t i m e ,
an d b ef o r e i t i s b a rre d b y the s t a t u t e o f li mi t at i on s ,
a j u d g m e n t ma y be en forced by act ion. The r e v i v e d
j u d g m e n t ma y als o b e e n f o r c e d b y mot i o n wi t h i n (5)
year s from the date of its entry and t h e re a ft e r by
act i o n before i t i s barred by the st at ut e of
li mi t at i on s. (6a)
NOTES
1. This amended section int roduced two import ant

changes to the former doctrinal rules: (1) While the former
section provided t hat the 5-year period was to be computed
from t he dat e of the ent ry of the judgme nt "or from the
dat e i t beco me s fina l an d e x e c u t o r y, " the seco nd
alt er nat ive has been eliminat ed. This is a consequence
of the a me nd me nt of Sec. 2 of Rule 36 to the effect t hat
"(t)he date of the finalit y of the judgme nt or final order
sha l l be dee me d to be the dat e of it s e nt r y, " t hu s
abando ning the doctrine in Munez, et al. vs. CA, et al. (L-
46040, July 23, 1987) and similar holdings. (2) The last
sent ence of t his section also sets aside the ruling in Luzon
Surety Co., Inc. vs. IAC, et al., infra., as shall hereaft er be
discussed.
2. The 5-year period is to be counted not from the

date the judgment became final in the sense t hat no appeal
could be t aken therefrom but when it became executory
in the sense t hat it could already be enforced (Tan Ching
468
RUL E 39 EXE CUTIO N , SATI SF ACTIO N SEC . 6
Ji vs. Mapalo, et al, L-21933, Feb. 22, 1971), i.e., from

the date of its entry.
3. Wit hin 5 years from entry of the judgment, the

prevailing part y can secure its execution by merely filing
motions for such writs of execution as may be necessar y
to enforce the judgment . If a writ of execution was issued
and levy made on the property within the 5-year period,
the sale of the propert y t hereafter will be valid provided
it is made within the 10-year period (Quiambao vs. Manila
Motor Co., L-17384, Oct. 31, 1961; Del Rosario vs. Yatco, L-
18375, Dec. 29, 1966; Jalandoni, et al. vs. PNB, et al., L-47579,
Oct. 9, 1981). If no levy was made within the 5-year
period, the writ of execution may no longer be enforced
even if it was issued within the 5-year period.
4. Failure to object to a writ of execution issued after
5 years from final judgment does not validate the writ, as
the question of jurisdiction of the court is involved and
jurisdict ion cannot be conferred by the will of the part ies
(Ramos vs. Garciano, L-22341, April 29, 1969; Sabulao
vs. Delos Angeles, et al, L 29317, May 29, 1971).
5. However, where the execution was withheld due

to the financial difficulties of the debtor (Lancita vs.
Magbanua, L-15467, Jan. 31, 1963), or was suspended
by agreement of the parties (Torralba vs. De los Angeles, L-
27592, Feb. 14, 1980), especia lly if it was wit h court
approval (Manila Railroad Co. vs. CIR, L-18389, Jan. 31,
1963), as where the compromise agreement approved by
the court provided t hat the judgment debtor was given 6
years from rendit ion of the judgment within which to pay
the judgment account (Tan Ching Ji vs. Mapalo, et al, supra),
or was not carried out due to the repealed refusal or failure
of the sheriff to enforce the same (Lancita vs.
Magbanua, supra), or was suspended by order of the
court (Casela vs. CA, et al, L-26754, Oct. 16, 1970), or
was int errupted by the filing of a motion
469
for examinat io n of the judgme nt debtor and an act ion for

m a n d a m u s by t he judg me n t cr edit or (Potenciano vs.
Mariano, et al., L-30904, Mar. 6, 1980), the 5-year period
may be proport io nat ely ext ended (Bien, et al. vs. Sunga,
et al., L-39644, Sept. 30, 1982). Hence, where the delay
in the execut ion of the judg ment for more t ha n 8 years
was due to the acts of the judgme nt debtor, the Supreme
Court held t hat the motion for alias wr it s of execut ion and
for demo lit io n c o ns t it ut e , in effect, a r eviva l of t he
judg me nt under Sec. 6 of Rule 39 (David vs. Ejercito, et
al, L-41334, June 18, 1976; see De la Rosa vs. Fernandez,
etc., et al, L-46127, April 18, 1980); Yau vs. Silverio, Sr.,
G.R. No. 158848, Feb. 4, 2008).
Also, where the judgment creditors had complied with
virt ually all the r equ ir e me nt s, made in piecemeal fashion
by the Commission on Audit, for the payme nt to t hem by
the defendant province of the judg ment account but which
still r ema ined unpaid after 8 years from finalit y of the
ju d g me nt , the S upr eme Court held t hat said 8 year s should
not be included in comput ing the 5-year period to execut e a
judg ment by mot ion. The delay was t hrough no fault of
the judgme nt creditor but was imput able to the
g o v e r n m e n t a l age nc ie s invo lved (Prov. Gov't of Sorsogon
vs. Villaroya, et al, G.R. No. 64037, Aug. 27, 1987).
Quot ing from Republic vs. CA, et al. (L-43179, Jun e 27,
1985), the S upr eme Court reit erat ed t hat :
"In comput ing the t ime limit ed for suing out an
execut ion, alt hough t here is aut hor it y to the contrary,
the general rule is t hat t her e should not be included
the time when execution is stayed, eit her by agreement
of t he part ies for a definite t ime, by injunct ion, by
the t aking of an appeal or writ of error so as to operate
as a s u p e r s e d e a s , by the d e at h of the par t y or
ot herwise. Any interruption or delay occasioned by
the debtor will extend the time within which the writ
may be issued without scire facias."
470
RUL E 3 9 E X E C U T I O N , S AT I S F AC T I O N SEC . 6
6. After 5 years and wit hin 10 years from ent ry of

the judgment , such judg ment becomes a mere r ight of
action and if unsat isfied, the prevailing part y can file an
act ion for revival of judg me n t (PNB vs. Perez, et al, L-
20412, Feb. 28, 1966; Continental Bank vs. Tiangco,
G.R. No. 50480, Dec. 14, 1979). The venue of such action
is subject to the gener al rules of venue in light of the
present circumst ances of the part ies (Aldeguer vs. Gemelo,
68 Phil. 421). That action for revival is subject to such
defenses as may have ar isen dur ing the int erim (see Cia.
General de Tabacos vs. Martinez, et al., 29 Phil. 515). The 10-
year period for revival of judg ment is counted from the
date of its finalit y (PNB vs. Deloso, L-28301, Mar. 30, 1970)
which is now deemed to be t he dat e of ent r y . However, if it
is a judgment based upon a compromise which is
immediately final and executory, prescription runs from the
date of its rendit ion and not from the date of ent r y
(Jacinto, etc. vs. IAC, et al., G.R. No. 66478, Aug. 28,
1988). If an a me nd at o r y and "clar ificat ory" judgment was
rendered, it is from t he date of the entry thereof t hat the 10-
year period is reckoned (Sta. Romana vs. Lacson, L-27754,
April 8, 1981). For this purpose, a yea r should be
co mput ed as co ns ist ing of 365 days (Art. 13, Civil Code);
hence if leap years are involved, each leap year should be
reckoned as consist ing of 366 days (National Marketing
Corp. vs. Tecson, et al., L 29131, Aug. 27, 1969).
7. An action to revive a judgment is a personal one
and not quasi in rem (Aldeguer vs. Gemelo, et al., supra;
Donelly vs. CFI of Manila, et al, L-31209, April 11, 1972).
8. This sect ion does not apply to jud g me n t s for
support which do not become dor mant and which can
always be executed by motion (Canonizado vs. Benitez,
etc., et al, L 49315 and G.R. No. 60966, Feb. 20, 1984),
except those for support in arr ear s beyond ten years from
the date they become due (Florendo vs. Organo, 90 Phil.
483; Velayo vs. Velayo, L-23538, July 21, 1967). It does
471
not apply to cont empt orders by reason of unaut hor ized

r eent r y on the land by t he ejected defendant (Azotes vs.
Blanco, 85 Phil. 90), or for t he issua nce of writ s of
po ssessio n in foreclo sure cases w it hin t he st at ut e of
limit at ions (Ramos vs. Mahalac, 89 Phil. 270). Neit her
is t his sect ion applicable to special proceedings, such as
land r egist r at io n cases, hence t he r ight to ask for a writ
of possession t her e in never prescribes (Rodil, et al. vs.
Benedicto, et al., L-28616, Jan. 22, 1980; cf. Heirs of
Cristobal Marcos vs. De Banuvar, et al., L-22110,
Sept. 28, 1968; Sta. Ana vs. Menla, L-15564, April 28,
1961); Republic vs. Nillas, G.R. No. 159395, Jan. 23, 2007).
9. It has been held t hat Art. 1155 of the Civil Code,

whic h pr o v id e s t hat the p r e s c r i p t io n of act io n s i s
int errupt ed when t hey are filed wit h the court or when
t here is a wr it t en extrajudicial demand by the creditors or
a wr it t en acknowledgment of the debt by the debtors, does
not apply to act ions to revive a dor mant judgment (PNB
vs. Deloso, supra), but only to act ions to collect not based
upon a ju dgment .
However, it was lat er held t hat the filing of a first
revival act ion wit hin the 10-year period under Sec. 6 of
this Rule tolls the r unning t hereof and such int err upt io n
last s during the pendency of said action. When such action
was dismissed for failure of summo ns and a second revival
action was again filed wit hin the balance of said period,
after deduct ing the per iod of int er r upt io n, the second
action was st ill seasonably filed. Art. 1155 of the Civil
Code, which provides t hat the prescr ipt ion of act ions is
int errupt ed when they are filed in court, is unqualified.
Under t his view, the cases oiConspecto vs. Fruto (31 Phil.
148) and Oriental Commercial Co., Inc. vs Jureidini (71
Phil. 25), which held t hat the effect of a revival action
upon the 10-year period depends on whet her the dismissal
was due to plaint iffs aba ndo nme nt or not, are now of
doubtful applicabilit y (Board of Liquidators vs. Zulueta, L-
30738, July 30, 1982).
472
10. In Luzon Surety Co., Inc. vs. IAC, et al. (G.R.

No. 72645, Jun e 30, 1987), the question was raised as to
whet her a judgme nt creditor who failed to enforce the
original judgment is ent it led to revive said judgment only
once, in view of the provisions of Sec. 6 of this Rule in
relat ion to Art. 1144(3) of the Civil Code which requires
t hat actions upon judgment s "must be brought wit hin ten
years from the t ime t he right of action accrues." The
Supreme Court took note of its earlier ruling in PNB vs.
Bondoc (L-20236, July 30, 1965) where it answered the
question in the negat ive, holding t hat Sec. 6 of this Rule
makes no dist inct ion as to the kind of judgment which
may be r evived by o r dinar y ind e pe nd e n t act ion. It,
therefore, ruled t herein t hat a judgment rendered in an
action for the revival of a previous unsat isfied judgment
is a new judgment in itself; hence if it could not be enforced
within the first five years from its finality, a second revival
action may be resort ed to within the succeeding five years
to revive said second judgment .
However, it decided to abandon said doctrine and
adopt as the bet t er view t hat in the subsequent case of
PNB vs. Deloso, supra, which held t hat the ten-year period
is to be reckoned from the finality of the original judgment ;
hence, if wit hin t hat period a judg me n t reviving the
origina l jud g me n t was obt ained but again r e ma ined
unsat isfied, a second revival action beyond the prescript ive
ten-year period is not allowed. The effect of the judgment
in such first revival action is only to grant the judgment
creditor anot her period of five years to execute the said
judgment by mere motion, failing which a second revival
action can no longer be inst it ut ed.
With the adoption of the last sentence in this amended
Sec. 6, the foregoing seesawing decisions have been laid
to rest. Jus t like the rule on an original judgment, the
revived judgment may now also be enforced by motion
within 5 years from the date of its entry and, thereaft er,
by filing anot her revival action should it again become
473
d o r ma nt , pro vid e d i t i s filed w it h in the s t a t u t e of

limit at ions. That second revived judgment can also be
enforced in the same ma nner as the original judgme nt
and in accordance with t he provisions of Sec. 6.
Sec. 7. Execution in case of death of party. — In

cas e of the d eat h of a party, e xe c u t i o n ma y i ssu e or
be en forc e d in the fo l l ow i n g man n er :
(a) I n ca s e o f the d e a t h o f the j u d g m e n t
o b l i g e e , u p o n the a p p l i c a t i o n o f hi s e xe c u t o r o r
ad mi n i s t rat o r , or s u c c e s s o r in in t ere st ;
(b) I n cas e o f the d e a t h o f the j u d g m e n t
ob li go r, a g a i n s t hi s e xe c u t o r o r ad m i n i s t ra t o r o r
s u c c e s s o r in i n t e re s t , i f the j u d g m e n t be for the
r e c o v e r y o f rea l o r p e r s o n a l p r o p e r t y , o r the
e n f o rc e m e n t of a lien t h ereon ;
(c) I n cas e o f the d e a t h o f the j u d g m e n t
ob li gor, after e xe c u t i o n i s act u all y levi ed up o n any
o f hi s p r o p e r t y , the sam e ma y b e sol d for the
s a t i s f a c t i o n o f the j u d g m e n t o b l i g a t i o n , an d the
o f f i c e r m a k i n g the sa l e s h a l l a c c o u n t t o the
c o r r e s p o n d i n g e xe c u t o r o r a d m i n i s t ra t o r for an y
su rp lu s in hi s h an d s . (7a)
NO TES
1. Par. (b) applies where the judgme nt obligor dies

aft er the e nt r y of the j u d g m e n t or or de r which, of course,
has become final and executory. If he dies before such ent r y
in the court wherein the act ion is pending, and t he
act ion is for a co nt r act u a l money claim, the a mended rule
is t hat it will not be dismissed but shall cont inue unt il ent r y
of final judgment . If it is a favorable judg me nt , i t may be
enforced as a claim aga ins t the debtor' s est at e (Sec. 20,
Rule 3).
474
RUL E 39 E X E C UT I ON , SATI SF ACTIO N SE C . 8
2. If the judg me nt obligor dies after the ent r y of

judgment but before levy on his propert y, execut ion will
issue if it be for the recovery of real or personal propert y.
However, if the judgment is for a sum of money, and the
judg me n t obligor dies before levy has been made on
his propert y, such judgment cannot be enforced by writ of
exe cut io n bu t mus t be filed as a claim a g a i ns t his
est at e (see Sec. 5, Rule 86; Paredes vs. Moya, L-38051,
Dec. 26, 1974). If he dies after levy has been made, the
execut ion sale may proceed. It is the actual date of levy
on execut ion which is the cutoff date fsee Evangelista vs.
La Proveedora, Inc., et al., L-32834, Mar. 31, 1971).
Sec. 8. Issuance, form and contents of a writ of

execution. — The writ of exe cu t i o n shall: (1) i ssu e in
the nam e of the Rep u b li c of the Ph i li p p i n es from
the cou rt wh i c h gran t ed the mot ion; (2) state the
name of the court, the case n u mb e r and tit le, the
d i sp osi t i ve part of the subject j u d gmen t or order;
and (3) requi re the sheri ff or other p roper officer to
wh o m i t i s d i rect ed to en force the writ accord i n g to
its t erms, in the man n er herei naft er provi d ed:
(a) If the exec u t i o n be again st the p rop ert y of
the j u d g m en t obligor, to satisfy the ju d gmen t , with
i nt erest, out of the real or p erson al property of such
j u d gmen t obligor;
(b) If it be agai n st real or p erson al property
i n the h an d s o f p erso n a l re p re s e n t a t i v e s , h ei rs ,
d e v i s e e s , l e g a t e e s , t e n a n t s , o r t r u s t e e s o f the
j u d g m e n t ob li gor, t o sat i sfy the j u d g m e n t , wit h
i nt erest, out of such property;
(c) If i t be for the sale of real or p ers o n a l
property, to sell su ch prop erty, d escri bi ng it, and
apply the p roceed s in conformity with the j u dgment,
the mat eri al parts of whi c h shall be recited in the
writ of execu t i on ;
475
(d) If i t be for the d eli ve r y of the p o s s e s s i o n of

real or p e rson a l p rop ert y, to d eli ver the p os s e s si o n o
f the sam e , d e s c r i b i n g it, t o the part y en t i t l e d
t h eret o , an d to satisfy an y cost s, d am age s , ren t s , or
profit s cove re d by the j u d gme n t ou t of the p erson a l
p r o p e r t y o f the p e r s o n a g a i n s t w h o m i t wa s
ren d e red , and i f suffici ent p erson a l p rop e rt y cannot
be found, t he n ou t of the real p roperty; and
(e) I n all c a s e s , the wri t o f e x e c u t i o n shall
s p e c i f i c a l l y s t a t e the a m o u n t o f the i n t e r e s t , c o s t s
, d a m a g e s , re n t s , o r p ro f i t s du e a s o f the dat e o f
the i s s u a n c e o f the wri t , asi d e from the p ri n c i p a l
ob li gat i o n UNDER the j u d g men t . For this p u rp o s e ,
the m o t i o n for e x e c u t i o n sh al l sp eci f y the
a m o u n t s o f the f o r e g o i n g re l i e f s s o u g h t b y the
movan t . (8a)
NOT E S
1. This a me nded section now requires, obviously to

avoid erroneous implement at ion, t hat the writ of execut ion
should st at e the disposit ive par t of the ju dgment or order,
inst ead of just the "mat er ia l part s t he r eo f as provided in
the former section.
For the same reason, par. (e) thereof furt her requires
t hat the wr it should specifically st at e the amo unt of the
int erest, costs, damages, rent s or profits due as of the date
of its issuance. For such purpose, the movant shall specify
the a mo unt s of said reliefs in his mot ion for the issuance
of the writ. Judic ial experience has shown t hat in some
cases, leaving the co mput at io n of said a mo unt s to the
sheriff has been product ive of mischief and controversy.
2 . Also , whil e the fo r me r r ul e wa s t ha t the

sat isfact io n of t he judg me n t must be carr ied out first
t hrough the personal propert y, and t hen the real propert y,
476
of the judgment obligor, t hat procedure is now specifically

provided only in par. (d) of this section, t hat is, where the
judgment is for the delivery of the possession of real or
personal propert y and there is a need to sell some other
propert y of the judgment obligor to satisfy costs, damages,
rents or profits covered by the judgment.
The reason for this change is to afford the judg ment
obligor an element of choice as to which of his propert ies
may be proceeded against to satisfy the judgment, as some
p e r so na l p r o p e r t i e s may be of more s e n t i m e n t a l ,
commercial or ot her value to him for his present or future
purposes. Thus, under par. (b) of the next succeeding
section, while the sheriff may levy upon the propert ies of
the judgment obligor of any kind and nat ure not exempt
from execut ion, he must first give the latter the option to
choose which property or part thereof may be levied upon,
sufficient to satisfy the judgment .
3. . The former sect ion provided t hat the wr it

of execution must issue from the court in which the
judgment or order was ent ered. Sec. 2, Rule 36 requires
the entry of judgment to be made if neit her an appeal
therefrom nor a motion for new trial is seasonably
filed, thereby presupposing t hat the judgment to be
ent ered is t hat of the court which tried the case, t hat is,
the court of original jurisdict ion. It has, accordingly,
been held t hat the then Court of First Instance of Laguna
was not empowered to issue an alias writ of execut ion to
enforce a judgment by the t hen Just ice of the Peace Court
of Calamba, and only the latt er can issue the writ of
execut ion (Arambulo vs. CA, et al., L-15669, Feb. 28,
1962).
Consequent ly, in view of divergent pract ices of some
trial courts, where the judgment of the municipal trial court
was appealed to the Regional Trial Court and the decision
of the latt er was elevated to the Court of Appeals whose
decision t hereaft er became final, said ultimate decision
should be remanded through the Regional Trial Court to
477
RUL E 39 R E M E D I A L L AW C O M PEN D IU M SEC . 8
the inferior court for execution. The municipal trial court,

as the court of origin and which took cognizance of the
case in the exercise of original jurisdict ion, is the court
aut hor ized to issue the wr it of execut ion, and not the
Regional Trial Court which part icipat ed in the proceedings
in an appellat e capacit y.
These observat ions are not affected by the fact that,
as amended, the present section st at es that the writ of
execut ion "shall issue from the court which grant ed the
motion." Such t ext ual change is intended to encompass
the mat t e r of discret ionar y execut ion in Sec. 2 of this
Rule since, i n e xe cut io n pe nd i n g app ea l UNDE R t he
cir cumst ances t herein cont emplat ed, the writ of execution
may be sought in or issued eit her by t he trial court or the
appellat e court. However, in execut ion as a mat t er of
right, which is what is cont emplat ed in this section under
discussion, the writ of execut ion must of necessity be issued
by the court where the judgment or order was entered,
t hat is, the court of origin.
4. . A wr i t of e xe cut io n mus t conform wit h

the j u d g m e n t an d i f i t is d iffer ent from or exceeds
the t er ms of the judgment , it is a nullit y (Villoria us.
Piccio, et al., 95 Phil. 802) and may be quashe d on
mot ion (Vda. de Dimayuga us. Raymundo, et al., 76
Phil. 143), and appeal may be t aken from a denial of
said motion (Romero, et al. us. CA, et al., L-39659, July 30,
1971, where it was held t hat cert iorari could even be
availed of as the court a quo had issued a writ of
possession in excess of its jurisdict ion). A writ of
execut ion is void when issued for a greater sum t ha n is
warr ant ed by the judgment or is for the original amount
of the judgment despite part ial pa yme nt thereof. The
exact amount due cannot be left to the det er minat io n
of the sheriff (Windor Steel Mfg. Co., Inc. us. CA, et al., L-
34332, Jan. 27, 1981).
5. While the general rule is t hat the portion of the

decision t hat becomes subject of execution is t hat ordained
478
RUL E 39 E X E C U T I O N , S AT I S F AC T I O N SE C . 8
or decreed in the disposit ive par t thereof, t her e are

e xce pt io ns , viz.: (a) wher e t her e i s a m b ig u it y or
uncert aint y, the body of the opinion may be referred to
for pur poses of co nst ruing the judg me nt because the
disposit ive part of a decision must find support from the
decision's ratio decidendi; and (b) where extensive and
explicit discussion and sett lement of the issue is found in
the body of the decision (Ong Ching Kian Chung, et al.
vs. China National Cereal Oil and Foodstuffs Import and
Export Corp., et al., G.R. No. 131502, June 8, 2000;
Intramuros Tennis Club, Inc., et al. vs. Phil. Tourism
Authority, et al, G.R. No. 135630, Sept. 26, 2000).
6. A writ of possession may be issued only in the

following cases: (a) land regist rat ion proceedings, which
are in rem; (b) extrajudicial foreclosure of a real est at e
mortgage; (c) judicial foreclosure of a real estate mortgage;
which is a quasi in rem proceeding, provided the mortgagor
is in possession of the mortgaged property and no third
person, not a party to the foreclosure suit, had intervened;
and (d) in execut ion sales (Mabale vs. Apalisok, L-46942,
Feb. 6, 1979). Wher e such t hir d p ar t i e s were not
impleaded in the case which resulted in the execution sale
and the issue of possession was not passed upon in said
case, said t hir d p a r t ie s ca nno t be eject ed or t he i r
improvement s on the land be demolished pur suant to a
writ of possession wit hout giving them an opport unit y to
be heard (Perater, et al. vs. Rosete, et al, G.R. No. 54553,
May 29, 1984).
7. As already stated, appeal is the remedy from an

order denying the issuance of a writ of execution (Socorro
vs. Ortiz, supra). However, an order granting the issuance
of a writ of execution of a final judgment is not appealable
(Molina vs. De la Riva, 8 Phil. 571; Manaois-Salonga vs.
Natividad, 107 Phil. 268; J.M. Tuazon & Co., Inc. vs.
Jaramillo, L-19024 35, Sept. 23, 1963), except where the
order varies the t erms of the judgment (J.M. Tuazon &
479
Co., Inc. vs. Estabillo, L-20610, Jan. 10, 1975), or where,

being vague, t he court renders what is believed to be a
wrong int erpr et at io n of the judgment (Castro vs. Surtida,
87 Phil. 166; Corpus vs. Alikpala, L-23707, Jan. 17, 1970;
Uytiepo, et al. vs. Aggabao, et al, L-28671, Sept. 30, 1970;
Heirs of Juan Francisco vs. Muhoz-Palma, et al, L-
28746, Feb. 27, 1971; De Guzman, et al vs. CA, et al,
G.R. No. 52733, July 23, 1985). A part y who ha s
vo lunt ar ily executed a judgment, partially or in toto, or
who volunt ar ily acquiesces in or ratifies, eit her part ially
or in toto, the execut ion of such judgment , is not permitted
to appeal from it (PVTA vs. De los Angeles, et al, L-30085-
87, Dec. 26, 1974). As a writ of execut ion cannot be
appealed, ne it he r can the order of demo lit io n issued
pur suant t heret o be appealable (David vs. Ejercito, et al, L-
41334, June 18, 1976).
8. I njunct io n will lie to stop t he auct io n sale of

pr o per t y of a s t r a ng e r to the case an d i t is not an
int erference wit h the writ of execut ion issued by anot her
Court since the wr i t of exe cut io n i s being illegally
i mp le me nt ed by t he sher iff beyond t he bounds of his
aut hor it y (Arabay vs. Salvador, L-31077, Mar. 17, 1978;
cf. Santos vs. Sibug, L-26815, May 26, 1981).
9. . Whe n the ju d g m e n t debt o r ha s s i m u la t e d

a t ransfer of his propert y to evade execut ion, said
propert y may be levied upon for the sat isfact ion of the
judgment wit hout the need of an independent action to
rescind or annu l the t r ans fe r since an abo lut e ly
s i m u la t e d or fict it ious contract is void and non-
exist ent (De Belen vs. Collector of Customs, 46 Phil. 241).
Sec. 9. Execution of judgments for money, how

enforced. — (a) Immediate payment on demand. — The
officer shall en fo rc e an e xe c u t i o n of a j u d gm en t for
mon e y by d e m a n d i n g from the j u d gm en t obligor the
i m m ed i at e p ay m en t of the full amou n t stated in the
480
wr i t o f e xe c u t io n an d all lawful fees. The j u d g m e n t

o b l i g o r s ha l l pa y i n c a s h , c e r t i f i e d ba n k c he c k
pa ya b l e t o t he j u d g m e n t o bligee, o r an y o t he r for m
o f p a y m e n t a c c e p t a b l e t o t he lat t er , the a m o u n t o f
the j u d g m e n t deb t U N D E R p r o p e r r e c e ip t d ir ect l y t
o t he o b l i g e e o r hi s a u t h o r i z e d r e p r e s e n t a t i v e i f
p r e s e n t a t t he t im e o f p a y m e nt . The lawful fees
s h a l l b e h a n d e d U N D E R p r o p e r r e c e i p t t o t he
e x e c u t i n g s he r i f f wh o s ha l l t u r n ove r t he sa i d
a m o u n t w it h i n t he sam e da y t o t he cle r k o f Co u r t o f
the C o u r t t hat is sue d t he wr it .
I f t he j u d g m e n t o b l i g e e o r hi s a u t h o r i z e d
r e p r e s e n t a t i v e i s no t p r e s e n t t o r eceiv e p a y m e nt ,
t he j u d g m e n t o b l ig o r sha l l d e l i v e r t he a fo r e s a i d
p a y m e n t t o t he e xe c u t i n g sheriff. The lat t e r shal l
t u r n o v e r al l t he a m o u n t s c o m i n g i nt o hi s
p o s s e s s io n w it h i n t he sam e da y t o the c ler k o f Co urt
o f t he Co ur t t hat issue d t he wr it , o r i f t he sa m e i s
no t p r a c t ic a b l e , d e po s i t said a m o u n t t o a f idu c ia r y
a c c o u n t i n t he n e a r e s t g o v e r n m e n t d ep o s it o r y ba n k
of t he Reg io na l T r ia l Co ur t of the lo calit y.
The c ler k o f sai d Co ur t shal l t he r e a ft e r a r r a n g e
for t he r e m i t t a n c e o f t he de po s i t t o the a c c o u n t o f
t he Co ur t t hat issu e d the wr i t who s e cler k o f Co ur t
sha l l t he n d e l i ve r sai d p a y m e n t t o the j u d g m e n t
o bligee i n sat is fa ct io n of t he j u d g m e nt . The e xce ss,
i f any , sha l l b e d e l i v e r e d t o the j u d g m e n t o bligo r
whil e t he lawful fees sha l l b e r e t a i n e d b y t he cler k
of Co ur t for d is p o s it io n as pr o vide d by law. In no
cas e sha l l t he e xe c u t i n g sher iff d e m a n d t hat an y
p a y m e n t b y c hec k b e mad e pa ya b l e t o him.
(b) Satisfaction by levy. — If t he j u d g m e n t
o bligo r c a nno t pa y all or par t of the o bl i gat io n i n cash
, cert ified ban k chec k o r ot he r mod e o f p a y m e n t
a c c e p t a bl e t o the j u d g m e n t o bligee, the officer sha l l
levy u p o n t he p r o p e r t i e s of the j u d g m e n t o bligo r of
481
ever y kind and n at u r e w h at s o e v e r wh i c h may be

d i sp osed of for valu e and not ot h erwi s e exemp t from
e x e c u t i o n , g i v i n g the l a t t e r th e o p t i o n t o
i m m ed i at e l y ch oos e wh i c h p rop ert y or part t h ereof
ma y b e l e v i e d u p o n , s u f f i c i e n t t o s a t i s f y the
j u d gmen t . I f the ju d gmen t obligor doe s not exerci se
the opt ion, the officer shall first levy on the person al
p rop e rt i es , i f any, and the n on the real p rop e rt i es
i f the p erson a l p rop e rt i es are i n su ffi cient to an swe r
for the j u d gm en t .
The sh eri ff shall sell only a sufficient port ion
of the p e rso n a l or real p rop e rt y of the j u d g m en t
ob li gor wh i c h ha s bee n levi ed upon .
Whe n th er e i s more p rop e rt y of the j u d gmen t
ob li go r th a n i s su ffi ci en t t o sati sfy the j u d gme n t
and lawfu l fees, he mus t sell only so mu c h of the
p erson a l or real p rop e rt y as i s su ffi ci ent to satisfy
the j u d g m e n t and lawfu l fees.
Rea l p ro p e rt y , st oc k s , s h a re s , d ebt s , cred i t s ,
an d ot h e r p e rs o n a l p ro p e rt y , o r an y i n t e re s t i n
ei t h e r real or p erson a l p rop ert y, ma y be levied upon
in like man n e r and wit h like effect as UNDER a writ
of at t ach men t .
(c) Garnishment of debts and credits.— The officer
ma y levy o n d eb t s du e the j u d g m e n t ob li gor and
ot h e r c red i t s , i n c l u d i n g ban k d e p os i t s , fi n an ci a l
i n t erest s, royalt i es, c o m m i s s i o n s and oth er p erson a l
p ro p e rt y no t c a p ab l e o f m a n u a l d e l i v e r y i n the
p o s s e s s i o n or con t rol of third p art i es. Levy shall
be mad e by se rvi n g n ot ice upo n the p erso n owi n g
suc h d ebt s or h avi n g in his p o s s e s s i o n or cont rol
su c h c r e d i t s t o w h i c h the j u d g m e n t o b l i g o r i s
en t i t l ed . The g a rn i s h m e n t sh all cove r only suc h
amou n t as will sati sfy the j u d gm en t and all lawfu l
fees.
482
The ga rn i sh e e shall make a wri t t en report to

the cou rt wi t h i n five (5) days from se rvi ce of the
notice of ga rn i sh m en t st at i n g wh et h e r or not the
j u d gmen t ob ligor ha s suffici ent funds or cred i t s to
sati sfy the a m o u n t of the j u d g m e n t . I f not, the report
shall state how muc h funds or cred i t s the g a rn i s h e e
h old s for the j u d g m e n t ob li go r. The ga rn i sh ed
amou n t in cash, or certi fi ed bank check i ssu ed in the
nam e of the j u d gmen t ob ligee, shall be d elivered
d i rect ly to the j u d gmen t ob li gee wit hi n ten (10)
w o rk i n g day s from se rvi c e of n ot i c e on said
ga rn i sh e e req u i ri n g su ch delivery, excep t the lawful
fees wh i c h shall be paid direct ly to the court.
In the even t th ere are tw o or more ga rn i s h e e s
h old i n g d ep osi t s or cred it s suffi cient to satisfy the
j u d gmen t , the j u d gm en t obligor, i f availab le, shall
h av e the ri g h t t o i n d i c a t e the g a r n i s h e e o r
g a rn i s h e e s wh o shal l b e req u i re d t o d eli ve r the
amou n t due, ot h e rw i s e , the ch oice shall be made
by the j ud gmen t ob li gee.
The e xe c u t i n g sheri ff shall ob se rve the same
p ro c e d u r e UNDER p a ra g ra p h (a) wit h re s p e c t t o
d e l i v e r y o f p a y m e n t t o the j u d g m e n t o b l i g e e .
(8a, 15a)
Sec. 10. Execution of judgments for specific acts. —

(a) Conveyance, delivery of deeds, or other specific acts;
vesting title. — If a j u d g m e n t d i re c t s a part y to
exe cu t e a con v ey an c e of land or personal p roperty,
or to deliver d eed s or other docu ment s, or to perform
any other speci fi c act in con n ect i on th ere wi t h , and
the party fails to comply within the time specifi ed,
the court may di rect the act to be done at the cost
o f the d i s o b e d i e n t p art y b y som e ot h e r p erso n
ap p oi n t ed by the court and the act whe n so done
shall have like effect as if done by the party. If real
o r p e r s o n a l p r o p e r t y i s s i t u a t e d w i t h i n the
483
RUL E 39 REMEDIA L LA W COMPENDIU M SE C . 11
P h i l i p p i n e s , t he C o u r t i n l ie u o f d i r e c t i n g a
c o n v e ya n c e t he r e o f ma y b y a n o r d e r d ive s t t he t it le
o f an y p a r t y an d ves t i t i n o t he r s , whi c h sha l l hav e
t he force an d effect of a c o n v e ya n c e e x e c u t e d in du e
for m of law. (10a)
(b) Sale of real or personal property. — If t he
j u d g m e n t b e fo r t he s a l e o f r e a l o r p e r s o n a l
p r o p e r t y , t o sell su c h p r o p e r t y , d e s c r i b i n g it, an d
a p p l y t he p r o c e e d s i n c o n f o r m i t y w i t h t he
j u d g m e n t . (8[c]a)
(c) Delivery or restitution of real property. — The
officer sha l l d e m a n d o f t he p e r s o n a g a i n s t who m
t he j u d g m e n t for t he d e l i ve r y o r r e s t i t u t i o n o f rea l
p r o p e r t y i s r e n d e r e d an d all p e r s o n s c la i m i n g r ig ht s
U N D E R hi m t o p e a c e a b l y va c a t e t he p r o p e r t y w it h i n
t h r e e (3) w o r k i n g d a ys , an d r e s t o r e p o s s e s s i o n
t h e r e o f t o t he j u d g m e n t o b l i g e e , o t h e r w i s e , t he
officer s ha l l o us t all suc h p e r s o n s t h e r e f r o m wit h
t he a s s i s t a n c e , i f n e c e s s a r y , o f a p p r o p r i a t e peac e
o f f i c e r s , an d e m p l o y i n g s u c h m e a n s a s ma y b e
r e a s o n a b l y n e c e s s a r y t o r e t a k e p o s s e s s i o n , an d
p lac e t he j u d g m e n t o bl ig e e i n p o s s e s s i o n o f suc h
p r o p e r t y . An y c o s t s , d a m a g e s , r e n t s o r p r o f it s
a w a r d e d b y t he j u d g m e n t sha l l b e sa t is f ie d i n t he
sa m e m a n n e r a s a j u d g m e n t for mo ne y . (13a)
(d) Delivery of personal property. — In j u d g m e n t s
for t he d e l i v e r y o f p e r s o n a l p r o p e r t y , t he officer
s ha l l t a k e p o s s e s s i o n o f t he sa m e an d f o r t h w i t h
d e l i v e r i t t o t he p a r t y e n t i t l e d an d s at is f y an y
j u d g m e n t for mo ne y a s t h e r e i n p r o vi d e d . (8a)
NOT E S
1. The provis io ns on ju dg me nt s for specific acts

(Sec. 10) have been clarified by t he qualificat ion t hat the
specific acts cont emplat ed t herein are those in connection
with the direct ive to a part y to execute a conveyance of
484
land or to deliver deeds or other document s. The furt her

clarification is t hat the court, in order to divest the title of
the disobedient part y and vest it in others, does not have
to "enter judgment " for t hat purpose, as formerly provided,
since there is already a judgment for such conveyance; it
may now do so merely "by an order" to t hat effect.
2. P ar s, (b), (c), (d) and (e) hereof were formerly

separat e sect ions under t his Rule, but have now been
consolidated under this section as they all involve the
performance of part icular acts directed by a judgment .
3. When a part y refuses to yield possession of a

propert y as ordered by a writ of execut ion, contempt is
not the remedy. The sheriff must oust said part y from
the property but if demolit ion is involved, there must be a
hear ing on motion and due notice for the issuance of a
special order under Sec. 14 (now, Sec. 10(dJ) of this Rule
(Fuentes, et al. vs. Leviste, et al., L 47363, Oct. 28, 1982;
Atal Moslem, et al. vs. Soriano, et al., L-36837, Aug. 17,
1983).
4. A writ of execut ion direct ing the sheriff to cause

the defendant to vacat e is in the nat ur e of a habere
facias possessionem and aut horizes the sheriff, wit hout
the need of securing a "break open" order, to break open
the premises where t here is no occupant therein (Arcadio,
et al. vs. Ylagan, A.C. No. 2734, July 30, 1986).
Sec. 11. Execution of special judgments. — When a

j u d gmen t requ i res the performance of any act othe r
than those men t i on ed in the two p reced in g secti on s,
a certifi ed copy of the j u d gmen t shall be att ached
to the writ of execu t i on and shall be served by the
officer upon the party again st who m the same i s
re n d e re d , o r u p o n an y ot h e r p e r s o n s req u i re d
thereby, or by law, to obey the same, and such party
or p e rso n ma y be p u n i s h e d for c o n t e m p t i f he
d i sob eys such j ud gment. (9a)
485
NOTE
1. The special judgme nt in this sect ion is one which

r equ ir e s t he per fo r mance of any act, ot her t ha n the
payment of money or the sale or delivery of real or personal
propert y, which a part y must personally do because his
personal qualificat ions and circumst ances have been taken
into considerat io n. Refusal to comply is punishable by
co nt emp t (see Chinese Commercial Property Co. vs.
Martinez, L-18565, Nov. 30, 1962).
A judg ment for specific acts under Sec. 10, on the other
hand, direct s a part y to execute conveyance of land, or to
deliver deeds or ot her document s, or to perform any other
specific acts in connect ion t her ewit h but which acts can
be perfor med by persons ot her t ha n said part y. Hence,
on refusal to comply, the court can appoint some other
person to perform the act directed to be done at the expense
of the disobedie nt part y and the act when so done shall
have the same effect as if performed by the part y himself.
The disobedient part y incur s no liabilit y for cont empt
(see Caluag vs. Pecson, et al., 82 Phil. 8; Francisco, et al.
vs. National Urban Planning Commission, 100 Phil. 984
[Unrep.J; Sandico, et al. vs. Piguing, et al., L-26115,
Nov. 29, 1971).
Sec. 12. Effect of levy on execution as to third

persons. — The lev y on e x e c u t i o n s h al l creat e a
li e n i n favo r o f the j u d g m e n t o b l i g e e ove r the
ri gh t , t it l e an d i n t e re s t o f the j u d g m e n t ob li go r
i n su c h p rop ert y a t the ti m e o f the levy, su b j ec t t
o lien s an d e n c u m b ra n c e s t he n exi st i n g. (16a).
NOTES
1. Levy means t he act or acts by which an officer

set s apar t or appro pr iat es a par t or the whole of the
pr o pert y of t he ju dg me n t debt or for pur po se s of the
486
prospect ive execut ion sale (Llenares vs. Valdevella,

et al, 46 Phil. 358; Del Rosario vs. Yatco, L-18735,
Dec. 29, 1966). See Sec. 7, Rule 57 on the procedure
t hereof. If su scept ible of appr o pr iat io n , the officer
r e mo ve s an d t a k e s the p r o p e r t y for s a fe k e e p i ng ;
ot herwise, the same is placed under sheriff's guar ds.
Wit hout a valid levy having been made, any sale of the
pr o pert y t her e a ft e r is void (Valenzuela vs. Aguilar, L-
18083, May 31, 1963). The judgment debtor must be served
wit h notice of the levy, but even if not served t herewit h,
this defect is cured by service on him of the notice of sale
prior to the sale (PBC vs. Macadaeg, etc.,
109 Phil. 981;Pamintuan, et al. vs. Munoz, et al., L-26331,
Mar. 15, 1968).
2. If the propert y involved is money, stocks or other

incorporeal propert y in the hands of third persons, the act
of appropriat ion by the sheriff is known as garnishment.
The garnishee will not be directed by the court to deliver
the funds or propert y to the judgme nt creditor as the
g a r n is h m e n t mer ely set s apar t such funds but does
not const it ut e the creditor as the owner of the garnished
propert y (De la Rama vs. Villarosa, et al., L-19727,
June 29, 1963).
3. The garnishment of a bank deposit of the judgment

debtor is not a violat ion of R.A. 1405 (on secrecy of bank
deposits), as it does not involve an inquiry or examinat ion
of such deposit (China Banking Corp., et al. vs. Ortega,
et al, L-34964, Jan. 31, 1973).
4. The preference given to a duly regist ered levy on
att achment or execution over a prior unregist ered sale is
well- set t led. As early as Gomez vs. Levy Hermanos
(67 Phil. 134), the Supreme Court held t hat an attachment
duly annot ated on a certificate of title is superior to the
r ight of a prior but unr egist er ed buyer. Such duly
registered attachment or levy on execution obviously takes
precedence over a notice of lis pendens which does not
487
even create a lien. Under the Torrens system, the auction

sale of t hat propert y retroact s to the date the levy was
regist ered; and now, specifically under Secs. 51 and 52 of
P.D. 1529, the act of regist rat ion is the operative act to
convey or affect the land insofar as t hird persons are
concerned, and of which acts t hey are deemed to have
construct ive notice (Du vs. Stronghold Insurance Co., Inc.,
G.R. No. 156580, June 14, 2004).
Sec. 13. Property exempt from execution. — E xc ep t

a s o t h e r w i s e e x p r e s s l y p r o v i d e d b y l a w , t he
fo l lo w i n g p r o p e r t y , an d n o o t he r sha l l b e e xe mp t
fro m e x e c u t i o n :
(a) The j u d g m e n t o b l i g o r ' s f a m i l y ho m e a s
p r o v i d e d b y law , o r t he h o m e s t e a d i n w h i c h h e
r e s i d e s , an d la nd n e c e s s a r i l y u se d i n c o n n e c t i o n
t he r e w it h ;
(b) O r d i n a r y t oo l s an d i m p l e m e n t s p e r s o n a l l y
use d b y hi m i n hi s t r a d e , e m p l o y m e n t , o r live l iho o d;
(c) T h r e e h o r s e s , o r t h r e e c o w s , o r t h r e e
c a r a b a o s , o r be a s t s o f b u r d e n , suc h a s t he j u d g m e n t
o bl igo r ma y se le ct , ne c e s s a r i l y use d b y hi m i n hi s
o r d in a r y o c c u p a t io n ;
(d) Hi s n e c e s s a r y c l o t h i n g an d a r t i c l e s for
o r d i n a r y p e r s o n a l use , e xc l u d i n g je w e lr y ;
(e) H o u s e ho l d fu r n it u r e an d ut e ns i l s ne c e s s a r y
for h o u s e k e e p i n g , an d use d for t hat p u r p o s e b y t he
j u d g m e n t o b l i g o r an d hi s f a m i l y , s u c h a s t he
j u d g m e n t o b l i g o r ma y s e l e c t , o f a v a l u e no t
e x c e e d i n g on e h u n d r e d t h o u s a n d peso s ;
(f) P r o v i s i o n s fo r i n d i v i d u a l o r fa m i l y us e
su f f ic ie n t for fou r mo nt h s ;
(g) The p r o fe s s io na l l i br a r ie s an d e q u i p m e n t o f
j u d g e s , la w ye r s , p h ys i c i a n s , p h a r m a c i s t s , d e nt is t s ,
e n g i n e e r s , s u r v e y o r s , c l e r g y m e n , t e a c h e r s an d
488
o t he r pr o fe s s io na l s no t e xc e e d i n g t hr e e h u n d r e d
t ho u s a n d peso s i n va lue ;
(h) On e f i s h i n g bo a t an d a c c e s s o r i e s no t
e xc e e d i n g t he t ot a l va lu e o f on e h u n d r e d t h o u s a n d
peso s o wne d by a f i s he r ma n an d by t he lawful us e o
f w hic h h e e a r n s hi s live l iho o d;
(i) So muc h of the s a la r ie s , wages , or e a r n i n g s
o f t he j u d g m e n t o bligo r for hi s p e r s o na l s er v ic e s
w it h in the four m o nt h s p r e c e d i n g t he levy a s ar e
ne c e s s a r y for t he s u p p o r t of hi s family;
(j) L e t t e r e d g r a ve s t o ne s ;
(k) M o n ie s , be ne f it s , p r i v i l e g e s , o r a n n u i t i e s
a c c r u i n g o r i n an y m a n n e r g r o w i n g ou t o f an y life
insura nce ;
(1) The r ig h t to r eceiv e legal s u p p o r t , or mo ne y
o r p r o p e r t y o b t a i n e d a s suc h s u p p o r t , o r an y
p e ns io n o r g r a t u it y from the G o ve r n m e nt ;
(m) P r o p e r t i e s spec ia l l y e xe mp t e d by law.
Bu t n o ar t ic l e o r specie s o f p r o p e r t y m e nt io n e d
i n t h i s s e c t io n s ha l l b e e x e m p t fro m e x e c u t i o n
is sue d upo n a j u d g m e n t r e co ve r e d for its pr ic e or
u p o n a j u d g m e n t of f o r e c l o s u r e of a m o r t g a g e
t he r eo n . (12a)
NOTE S
1. Economic, legal and t echnological changes or

develo pment s over t ime since these exempt ions were
provided for in the 1964 Rules of Court have necessitated
corresponding amendment s.
a. The subst ant ive concept of a family home and the
p r o c e d ur a l or r e g u la t o r y pr o vis io ns t her eo n were
introduced by the Civil Code on August 30, 1950. The
"family home" and "homestead" provided for in the Family
Code which repealed and replaced the provisions of the
489
former on August 3, 1988 and, as now stat ed in Par. (a),

refer to the same propert y except t hat the family home is
so r e fe r r e d to i f i t ha d bee n e it he r ju d i c ia l l y or
extrajudicially const ituted under the Civil Code. However,
under Art. 153 of the Family Code, extrajudicial or judicial
const it ut ion is no longer required as the family home is
deemed co nst it ut ed on a house and lot from the time it is
occupied as a family residence and so long as any of its
beneficiaries actually resides t her ein.
Under the Civil Code, aside from specified obligat ions
on the pr o pert y (Arts. 232, 243), t he family home is
exempt from execut ion or at t achme nt if the value does
not exceed 1*20,000, or P 30. 00 0 in cha r t e r e d cit ies
(Arts. 231, 246). In the 1964 Rules of Court, the exempt ion
of the family home was limit ed to P3.000 (Sec. 12fa],
Rule 39). T her eaft er, the Family Code increased the
exempt ion of the family home to not exceeding its actual
value at the t ime of its co nst it ut io n in the a mo unt of
P300.000 in urban ar eas, and P200.000 in rural areas, or
in such a mo unt s as may t hereaft er be fixed by law; but
wit h the indefinite and open-ended qualification t hat "(i)n
any event, if the value of t he currency changes after the
adopt ion of t his Code, the value most favorable to the
co nst it ut io n of t he family home shall be t he basis of
evaluat io n" (Art. 157).
Ag a ins t suc h a c o nt e nt io u s ba c k g r o u n d an d to
fo r e st a l l c o mp l i c a t e d so lu t io ns , o n p r a g m a t i c con•
siderat io ns of the per ennia l housing problems and the
s e nt i m e nt a l a t t a c h m e n t of Filip ino s to t he i r family
residences, the S upr e me Court decided to gr an t total
exempt ion to the family home wit hout regard to its value,
subject only to specific unavo idable except io ns. This
ame nd ment in the first par agr aph of this section does not
diminish, increase or modify subst ant ive rights, but merely
operates as a means of imple ment ing an exist ing right,
hence it deals mer ely wit h pro cedur e (see Fabian vs.
Desierto, etc., et al., G.R. No. 129742, Sept. 16, 1998).
490
RUL E 39 E X E C U T I O N , S A T I S F AC T I O N SE C . 13
b. Only ordinary tools and implement s used in trade

or emplo yment are exempted but sophist icat ed tools of
advanced technological designs with considerable value,
such as power tools used in indust r ia l or commercial
concerns, are not exempt.
c. The number of work animals or beasts of burden
exempt from execut ion has been increased, wit hout limit
on their value, provided t hat, and as long as, they are
used by the judgment obligor in his ordinary occupat ion.
This takes into account the importance of work animals to
t he far mer s , who c o ns t it ut e a lar ge po rt io n of the
populat ion, the unavailabilit y of facilities for mechanized
farming and the fact t hat the country operat es in large
measure on an agricult ural economy.
d. In addit ion to the judg ment creditor's ordinar y
clothing, all other articles for his ordinary personal use,
but excluding unessent ial or expensive items such as
jewelr y or sable and mink coats, are exempt ed. The
addit ional phrase "and t hat of all his family," referring to
said items in the former Rule, has been eliminat ed for
being superfluous since the same belong to the members
of the judgment debtor's family and not to him, hence they
are obviously not subject to execution.
e. The value of exempt household fur nit ure and
ut ensils for housekeeping, professional librar ies and
equipment , and fishing boats and accessories (not only a
net), has been increased. The same increase has also
been made on the amount of provisions for individual or
family use and salaries, wages or earnings necessar y for
the support of the judgment obligor's family; and the latter
items are now so specified in view of previous holdings
which dist inguished salar ies from wages.
UNDE R the sam e r a t io na l e t hat the ceiling o n
exempt ions for the family home, homestead or necessar y
land t herefor is no longer specifically st at ed in t his
a me nded sect ion, all mo nies, benefit s, pr ivileges or
491
annuit ies accruing or growing out of any life insurance

are likewise now exempt regardless of the amount of the
pr emiu ms paid t hereo n. Of course, as under the former
section, this exempt ion does not apply to non-life insurance
coverage.
2. . The exe mpt io ns enu me r at e d herein cannot
be claimed, pur suant to the last paragraph, if the
judgment is for t he recovery of t he unpaid price of
t he art icle involved or for the foreclosure of a mortgage
t hereon.
3. . These exempt io ns mus t be claimed,

ot herwise they are deemed waived (Herrera vs.
McMicking, 14 Phil. 641). It is not the dut y of t he
sher iff to set off the exempt ions on his own init iat ive.
4. The us u fr u ct uar y r ight of a widow over a lot
whereon she had const ruct ed a resident ial house is not
exe mp t from execut io n as i t i s not the " ho mest ead"
cont emplat ed under t his sect ion. Such usufruct uar y right
may even be t r ansfer r ed or disposed of, hence it is an
int erest in propert y which can be sold on execut ion, unlike
the usufruct of par ent s over propert y of t heir children
under par ent a l aut hor it y t hen provided for in Art. 321 of
the Civil Code (Vda. de Bogacki vs. Inserto, et al., L-39187,
Jan. 30, 1982), and amended by Art. 226, Family Code.
5. . Ot he r p r o p e r t i e s spe c ia l l y e xe m p t e d
from execut ion, as co nt emplat ed in t he above section,
are:
(a) Propert y mortgaged to the DBP (Sec. 26, CA. 458);
(b) P r o p e r t y t a k e n over by t he Alien P r o per t y
Ad minist r at io n (Sec. 9[f], U.S. Trading With the Enemy
Act);
(c) Savings of nat ional pr isoners deposit ed wit h the
Post al Savings Bank (Act 2489);
(d) Backpay of pre-war civilian emplo yees (R.A. 304);
(e) P hi l ip p in e G o ve r nme n t backpa y to guer il las
492
(R.A. 897);
493
(f) P roduce, work anima ls and farm imp l e me nt s

of agr icu lt ur al lessees, subject to limit at io n (Sec. 21,
R.A. 6389);
(g) Be ne fit s from pr i va t e r e t i r e m e n t s ys t e m s
of co mpa n ie s and e s t a b l i s h m e nt s , wit h l i m it a t io n s
(R.A. 4917);
(h) Laborer' s wages, except for debts incurr ed for
food, shelter, clothing and medical attendance (Art. 1708,
Civil Code);
(i) Benefit pa yme nt s from the SSS (Sec. 16, R.A.
1161, as amended by P.D. 24, 65 and 177);
G) Co p yr ig ht s an d ot he r r ig ht s in i nt e l l e c t u a l
propert y under the former copyright law, P.D. 49 (cf. Sec.
239.3, R.A. 8293); and
(k) Bonds issued under R.A. 1000 (NASSCO vs. CIR, L-
17874, Aug. 31, 1963).
6. . S a lar ie s , as dist ingu is hed from wages,
were formerly not exempt from execution. The t er m
"wage" de no t es co mp e ns at io n for manua l labor,
skilled or unskilled, while the term "salary" denotes a
higher degree of emplo yment or super ior grade or service
and implies a position or office (Gaa vs. CA, et al., L-
44169, Dec. 31, 1985). This dist inct ion has been eliminated
by Par. (i).
7. See notes under Secs. 7 and 8, Rule 57 regarding
other propert ies exempt from at t achment , hence likewise
exempt from execut ion.
Sec. 14. Return of writ of execution. — The wr i t of

e xe c u t io n sha l l b e r e t u r n a b l e t o the Co urt is su i n g
i t i m m e d i a t e l y a ft er the ju d g m e n t ha s been sat isfied
in par t or in full. I f the j u d g m e n t ca nn o t be sat isfied
in full w it hin t hir t y (30) day s aft er hi s r ec e ip t of the
wr it , the officer shall r e p o r t t o the Co ur t an d st at e
the r ea so n t her e fo r . Suc h wri t shall co nt inu e i n
494
effect d u ri n g the p eriod wit h i n wh i c h the j u d gmen t

ma y be en forced by mot i on . The officer shall make
a rep ort to the Cou rt every thirty (30) day s on the
p ro c e e d i n g s t ak e n t h e re o n unt i l the j u d g m e n t i s
s a t i s f i e d i n full, o r its e f f e c t i v i t y e xp i r e s . The
ret u rn s or p eri od i c rep o rt s shall set forth the whol e
of the p ro c e e d i n g s t aken , an d shall be filed wit h the
Cou rt an d cop i e s t h e reo f p ro mp t l y fu rn i s h e d the
p art i es. (11a)
NOTE
1. This ame nded provision changes the procedure in

the former Sec. 11 of t his Rule wherein the lifetime of a
writ of execut ion was 60 days from its receipt by the officer
required to enforce the same, after which period, such writ
beco mes functus officio and all act s done t her ea ft e r
pur suant t her et o are null and void.
Under the pr esent amended pract ice, the lifetime of
the writ of execution corresponds to the period wit hin which
the judg me nt may be enforced by motion, t hat is, within 5
years from ent r y t hereof since t hereaft er such judgment
becomes do r ma nt and subject to a revival action. Wit hin
the period for its enforceabilit y and from its receipt by the
officer t asked wit h its enforcement, the officer shall make
the periodic report s to the court as required by t his section
unt il t he judg ment is fully sat isfied or becomes ineffective.
Sec. 15. Notice of sale of property on execution. —

B efor e the sal e o f p rop e rt y o n e xe c u t i o n , n ot i c e
t h ereo f mus t be gi ve n as follows:
(a) In cas e of p e ri sh a b l e p rop ert y, by p ost i n g
wri t t e n n ot ice of the time and p lace of the sale in
t h re e (3) pub li c p laces , p referab ly in c on s p i c u ou s
area s of the m u n i c i p a l or city hall, post office and
p u b li c ma rk e t i n the m u n i c i p a l i t y o r city wh er e
493
RUL E 3 9 EXE CUTIO N . SATI SF ACTIO N SEC . 1 5
the sal e i s t o tak e p lace , for su c h tim e a s ma y

b e r e a s o n a b l e , c o n s i d e r i n g the c h a r a c t e r an d
cond iti on of the property;
(b) I n cas e o f ot h e r p e r s o n a l p ro p e rt y , b y
p o s t i n g a si mi la r n ot i c e in the t h re e (3) p u b li c
places ab ov e - me n t i o n ed , for not less tha n five (5)
days;
(c) In cas e of rea l p ro p e rt y , by p o s t i n g for
t went y (20) days in the three (3) pub li c places above -
men t i on ed , a si mi lar notice p art icu larly d escri b i n g
the p rop erty and st at i n g wh ere the property i s to
be sold, and i f the asse sse d value of the p rop ert y
e x c e e d s fi fty t h o u s a n d ( P 5 0, 0 0 0. 0 0 ) p e s o s , b y
p u b li sh i n g a copy of the notice once a wee k for tw o
(2) con s ecu t i v e wee k s in one n ewp ap er s e lect ed by
raffle, wh et h e r in En gli sh, Filipin o, or any major
regi onal lan gu age p ub li shed, edited and ci rcu lat ed
or, i n the a b s e n c e t h e re o f , h a v i n g g e n e r a l
ci rcu lati on in the p rovi nce or city;
(d) In all cases, wri tt en notice of the sale shall
be given to the j u d gmen t obligor, at least three (3)
d ay s b e f o r e the sal e , e x c e p t a s p r o v i d e d i n
p aragraph (a) h ereof wh er e notice shall be given
at any time before the sale, in the same man n er as
p erson al servi ce of p leadi ngs and other papers as
provided by sect i on 6 of Rule 13.
The n ot i c e shall sp eci fy the p lace, date and
exact time of the sale wh i ch should not be earlie r
than nine o'clock in the mo rn i n g and not later than
two o'clock in the aftern oon. The place of the sale
may be agreed upon by the parties. In the ab sen ce
of suc h a g re e m e n t , the sale of real p rop ert y or
p erson al property not capable of manual delivery
shall be held in the office of the clerk of court of the
Regional Trial Court or the Municipal Trial Court
wh i c h i ssu e d the writ o r wh i c h wa s d e s i g n at e d
495
b y the ap p e l l a t e cou rt . I n the cas e o f p e rs on a l

p rop e rt y cap ab l e of man u a l d eli very, the sale shall
be held in the p lace wh er e the p rop ert y i s located.
(18a)
NOTE
1. This is an amended version of the former Sec. 18

of this Rule, wit h more specifications and details on the
places where not ices of the sale should be posted, the
publicat ion thereof, furnishing copies of the same, and, in
the last par agraph, the det ails on where and how the sale
of real or personal propert y shall be conducted.
Sec . 16. Proceedings where property claimed by

third person. — If the p rop ert y levi ed on is clai med
by any p erso n oth e r tha n the j u d gm en t ob ligor or
his agen t , an d suc h p erso n ma ke s an affidavit of
his title t h e ret o or ri ght to the p o s s e s s i o n thereof,
st at i n g the grou n d s of suc h ri gh t or title, and serves
the sam e upo n the officer m a ki n g the levy and a copy
t h e re o f upo n the j u d g m e n t ob li gee, the officer sh all
not be b ou n d to kee p the p rop erty, u n les s such
j u d g m e n t ob li gee, on d eman d of the officer, files a
b on d a p p r o v e d b y the C o u rt t o i n d e m n i f y the third-
party c lai man t in a su m not less tha n the value of the
p rop e rt y levi e d on. In cas e of d i sa g ree m en t as to
suc h valu e, the sam e shall be d et e rmi n e d by the
Cou rt i ssu i n g the writ of exe cu t i on . No clai m for
d a m a g e s for the t a k i n g o r k e e p i n g o f the p rop ert y
ma y be en fo rce d agai n s t the bond un les s the a ct i o n
t h e re f o r i s filed w i t h i n on e h u n d re d t went y (120)
day s from the date of the filing of the bond.
The o ffi c e r sh a l l no t b e li ab l e for d a m a g e s ,

for the t aki n g or k e e p i n g of the p rop erty, to any th i rd-
p art y clai man t i f suc h bond" is filed. Not h i n g
496
RUL E 3 9 E X E C U T I O N , S A T I S F AC T I O N SEC . 1 6
h erei n c o n t a i n e d shall p reven t suc h clai man t o r

any third p erson from vi n d i cat i n g his clai m to the
p ro p e r t y i n a s e p a r a t e a c t i o n , o r p r e v e n t the
j ud gment obligee from claiming d amages in the same
or a sep arat e act ion agai n st a third-party clai man t
wh o filed a frivolous or p lain ly sp u ri ou s clai m.
When the writ of execu t i o n is issued in favor of
the Repu b li c of the Ph i li p p i n es, or any officer duly
rep re s en t i n g it, the filing of such bond shall not be
req u i red, and in case the sheri ff or levyi n g officer
is sued for d a mage s as a resu lt of the levy, he shall
be rep re s en t e d by the Solicitor G en eral and i f held
liable therefor, the actual d amage s adj ud ged by the
cou rt shall be paid by the Nat ional Treasu rer out
o f su c h f u n d s a s ma y b e a p p r o p r i a t e d for the
p u rp ose. (17a)
NOTES
1. As amended, t his section expresses in a more

categorical manner t hat the officer making the levy shall
not be liable for damages to any t hird-party claimant if a
bond to indemnify the latt er has been filed. The officer's
immunit y from liabilit y, however, is only with respect to
damages ar is ing from his t aking and keeping of the
propert y claimed by the third part y. Damages arising
from acts on his part not connected with his official duty
to tak e and keep such pr o pert y are not wit hin the
conditions of the bond and he can be held liable therefor
under proper showing of his culpabilit y.
An innovation incorporated by this amendment is that
the judgment obligee can also claim damages against a
t hir d -part y cla imant who filed a frivolous or plainl y
spurious claim, and such judgment obligee can inst itute
proceedings therefor in the same or a separate action.
497
2. Where a t hird-part y claim has been filed in due

form, the prevailing part y can compel the sheriff to proceed
by the filing of a bond to answer for damages t hat may be
incurred as a consequence of the execut ion. On the other
hand, if t he sheriff proceeds wit h t he sale wit hout such
bond, he will be personally liable for such damages as
may be sust a ine d by and awar de d to t he t hir d - par t y
claimant (Bayer Phil., Inc., et al. vs. Agana, et al., L-38701,
April 8, 1975).
3. When a t hir d-part y claim is cont est ed, the court

has the power to fix the value of the propert y claimed by
the t hird person, so t hat a bond equal to such value may be
posted by the judg ment creditor to indemnify t he sheriff
against liabilit y for damages; or examine the judgment
debtor and ot herwise perform such ot her acts necessary
or incident al to carrying out its judgment . It may exercise
control and super visio n over the sheriff and ot her court
officers t aking par t in the execut ion proceedings. If the
sheriff erroneously seizes propert y of a third person, the
court, upon the lat t er ' s applicat ion and after summar y
hear ing, may order the release of t he pr opert y from the
mist aken levy and its rest orat ion to the lawful owner or
possessor. However, if the t hir d - part y claimant ' s proofs
do not per suade the court of his tit le or right of possessio n
over the propert y, the claimant ' s remedy is set out in Sec.
16 of t his Rule, which may be resorted to before or wit hout
availment of the recourses above set forth (Ong vs. Tating,
et al., G.R. No. 61042, April 15, 1987).
4. . Where the t hird-part y claim has been

disregarded by the sheriff because of the bond filed by
the prevailing part y, or if the court proceedings on said
t hird-part y claim result in a denial thereof, the remed y
of the t hird-part y cla imant is to file an independent
reivindicat ory action a g a in s t the j u d g m e n t cr ed it o r o
r the p u r c h a s e r a t public auct ion (see Lara vs. Bayona,
etc., et al, 97 Phil. 951; Polaris Marketing Corp. vs. Plan,
et al, L-40666,
498
Jan. 22, 1976; Bayer Phil., Inc. vs. Agana, supra).

Said t h i r d - p a r t y c l a i m a n t canno t appea l nor avai l
of cert iorar i as a remedy (Sierra vs. Rodriguez, et al., L-
25546, April 23, 1974; Northern Motors, Inc. vs. Coquia, et
al., L-40018, Mar. 21, 1975) since he is not a part y to the
original act ion.
5. The right s of t hird-part y claimant s should not be

decided in the action where the t hird-part y claims are
present ed, but in a separat e action which the court should
direct the claimant s to file (San Francisco Oil & Paint
Co. vs. Bayer Phil, Inc., L-38801, April 8, 1975). The
r easo n for t his is t hat "no man shall be affected by
proceedings to which he is a stranger" (Polaris Marketing
Corp. vs. Plan, et al., supra), and said separat e action may
be tried by a different branch of the same court or by
anot her court (Lorenzana vs. Cayetano, et al., L-37051,
Aug. 31, 1977).
6. In t he act ion for damages upon the bond filed by
the judg me nt creditor, the suret y must be impleaded,
otherwise the judgment therein cannot be enforced against
the bond (Montojo vs. Hilario, 58 Phil. 372). But an
action against the suret y is binding upon the principal if
the lat t er had knowledge thereof and an opport unit y to
part icipat e in the defense (Sec. 46, Rule 39).
7. Sec. 16 of this Rule aut horizes any person other

t han the judgment debtor or his agent to vindicate his
claim to the propert y by any proper action, t hat is, by any
action entirely separat e and dist inct from t hat in which
the execut ion has issued. This is true, however, if such
action is inst it ut ed by a st ranger to the lat t er suit. On the
other hand, if the claim of impropriet y in the execution
proceedings is made by a part y to the original action, not
by a st ranger t hereto, any relief therefrom may be applied
for wit h, and obt ained from, only t he execut ing court
(Mariano vs. CA, et al., G.R. No. 51283, June 7, 1989).
499
8. Under the aforesaid sect ion, it is immat erial as to

whet her or not the sheriff made a valid levy on propert ies
on execut ion before a person, other t ha n the judgment
debt or, cla iming o wner s hip or r ight s over the levied
propert ies can file a separat e action to prosecute his claim
t hereover. A person other t ha n the judgment debtor may
file a separ at e act ion over said propert ies even if t he
sheriffs levy on the propert ies on execution was considered
void. The issue as to whet her or not t here was an illegal
levy on propert ies under execut ion can be t hreshed out in
a separ at e act ion (Consolidated Bank & Trust Corp.,
et al. vs. CA, et al., G.R. No. 78771, Jan. 23, 1991, and
companion cases).
9. The remedies of a t hird-part y claimant ment ioned

in Sec. 16 of this Rule, t hat is, a summar y hear ing before
the court which aut hor ized the execut ion, or a "terceria"
or t hird-part y claim filed wit h t he sheriff, or an action for
damages on the bond posted by the judg ment creditor, or
an indepe nde nt r e ivind icat or y act ion, are cu mu lat ive
remed ies and may be resort ed to by a t hir d-part y claimant
independent ly of or separat ely from and wit hout need of
availing of the ot hers. If he opted to file a proper action
to vindicate his claim of ownership, he must inst it ut e an
act ion, dist inct and sep ar at e from t hat in which the
judg ment is being enforced, with a compet ent court even
before or wit hout filing a claim in the court which issued
the writ, the lat t er not being a condit ion sine qua non for
the former. This proper action would have for its object
the recovery of ownership or possession of the propert y
seized by the sheriff, as well as damages against the sheriff
and ot her persons responsible for the illegal seizure or
det ent ion of the propert y. The validit y of the tit le of the
t hird-part y cla imant shall be resolved in said action and a
writ of preliminar y injunct ion may be issued against the
sheriff (Sy, et al. vs. Discaya, et al., G.R. No. 86301,
Jan. 23, 1990).
500
10. It will be noted t hat under t his section, a third

part y cla i ma nt seeking to vind icat e his claim to the
propert y, or a judgment obligee with a claim for damages,
may enforce their claims in a separ at e action inst it ut ed
for t hat purpose and not in the same court where the
execut ion proceedings are being conducted. On the other
hand, such claims cont emplat ed and arising in at t ach•
ment proceedings (Sec. 14, Rule 57) and replevin suits
(Sec. 7, Rule 60) may be lit igat ed in the same act ion
involved or in a separat e suit. The reason for the difference
is t hat the judgment in the case subject of this section is
already final and executory, while Rules 57 and 60 involve
actions still pending in the trial court.
11. . As shown in the foregoing discussion, a

separat e case, dist inct from t hat in which the execution
was issued, is proper if inst it ut ed by a "stranger" to the
latt er suit. On the ot her hand, if the claim of
impropr iet y in the execution proceedings is made by a
part y to the action, not a st ranger t hereto, any relief
therefrom may only be applied for and obtained from the
execut ing court.
It has been held t hat a spouse who was not a part y to
the suit but whose conjugal propert y is being executed
because the other spouse is the judgment obligor, is not
considered a st ranger to the suit. That spouse cannot be
allowed to file a separat e action to question the execution
of t heir conjugal propert y since they could have easily
quest ioned the execut ion in the main case itself.
However, there have been instances where a spouse
was allowed to file a separat e case against a wrongful
execut ion, but they rest on different factual bases. Thus,
the inst it ut ion of a separat e and independent action was
allo wed whe n the p r o p er t y wa s the exclusive or
paraphernal propert y of a spouse who was not a party to
the case the judgment wherein was sought to be executed.
In such a situat ion, the aggrieved spouse was deemed to
be a st ranger to t hat main action (Ching vs. CA, et al.,
501
RUL E 3 9 R E M E D I A L LA W C O M P E N D I U M S E C S . 17 , 1 8
G.R. No. 118830, Feb. 24, 2003).
Sec . 17. Penalty for selling without notice, or

removing or defacing notice. — An of f i c e r s e l l i n g
wi t h ou t the n ot i c e p resc ri b ed by sect i o n 15 of this
Rule sh all be liable to pay p un i t i v e d am ag e s in the
am ou n t of five t h o u s a n d p eso s (F5,000.00 ) to any
p erso n i n j u re d t h e reb y , i n ad d i t i o n t o hi s act ual
d a m a g e s , bot h t o b e re c o v e re d b y mo t i o n i n the
sam e act i on , an d a p e rs o n w i l l f u l l y r e m o v i n g or
d e fa ci n g the n ot i c e p ost ed , i f don e before the sale,
or before the sat i sfact i on of the j u d gm en t i f i t be
sati sfi ed before the sale, shall be liable to pay five
t h o u s an d p eso s (P5,000.00 ) t o an y perso n in ju red
by reaso n thereof, in ad d i t i o n to his actu al d amages ,
t o b e r e c o v e r e d b y m o t i o n i n the sam e a c t i o n .
(19a)
NO TES
1. A sale wit hout the required notice is null and void

(Ago vs. CA, et al., L-17898, Oct. 31, 1962), and subjects
the officer to liabilit y for damages. The creditor who
induced the sheriff to sell wit hout notice will be solidarily
liable as a tort feasor (Campomanes vs. Bartolome, et al.,
38 Phil. 808).
2. . An execut ion sale made on the dat e after

t hat fixed in the notice of sale is null and void. The said
sale is also a nullit y where the r equir e ment for the
post ing of notices, as now specified in Sec. 15 of t his
Rule, is not complied wit h (see Prov. Sheriff of Rizal vs.
CA, et al., L-22606, Dec. 12, 1975).
Sec. 18. No sale if judgment and costs paid. — At

an y tim e before the sale of p rop e rt y on execu t i on ,
the j u d g m e n t o b l i g o r ma y p r e v e n t the sal e b y
p ayi n g the amou n t req u i re d by the exe c u t i o n and
502
RUL E 39 E X E C U T I O N , S A T I S F AC T I O N SE C . 19
the cost s that hav e bee n in cu rred t herei n . (20a)
Sec. 19. How property sold on execution; who may

direct manner and order of sale. — All sales of p rop e rt y
u nd er exec u t i o n mu s t be mad e at public au ct i on , to
the h i gh es t bidder, to start at the exact tim e fixed
in the n ot i ce. After su ffi ci en t p rop e rt y ha s bee n
sold to satisfy the e xe cu t i on , no more shall be sold
and any exces s p rop ert y or p roceed s of the sale shall
be p rompt ly d eli vered to the j u d gmen t ob li gor or
hi s a u t h o ri z e d re p r e s e n t a t i v e u n le s s o t h e r w i s e
directed by the j u d gmen t or order of the court. When
the sale i s of real p rop ert y, c on s i s t i n g of severa l
kn ow n lots, the y mus t be sold sep arat ely, or, whe n
a port ion of suc h real p ropert y is clai med by a third
p e rs on , he ma y req u i r e i t to be sold sep a rat e l y .
When the sale i s of p erson a l p rop ert y cap ab l e of
manual delivery, i t mus t be sold withi n view of th ose
at t en d i n g the same and in such p arcels as are li kely
to bring the h i gh es t price. The j u d gmen t obligor,
i f p re sen t at the sale, may di rect the order in wh ic h
property, real or p erson al, shall be sold, wh e n such
p rop ert y con si st s of several kn ow n lots or p arcels
wh ic h can be sold to ad vant age separat ely. Neit h er
the officer co n d u ct i n g the e xe cu t i o n sale, nor his
d ep u t i es, can b ecome a p u rchaser, nor be i n t erest ed
d i rect ly or in di rect ly in any p u rch ase at such sale.
(21a)
NOTES
1. This is a reproduct ion of the former Sec. 21 of

this Rule, with the amendment t hat the sale at public
auction must st art at the exact time fixed in the notice of
sale, instead of "between the hours of nine in the morning
and five in the afternoon," stated in t hat section and which
was not only ind e f i n it e bu t also s us c e p t ib l e of
manipulat ion.
503
2. The judgment creditor can bid and purchase at

the public auct ion (see Sec. 21), but the officer conduct ing
the execut ion sale or his deput y are disqualified. Other
persons disqualified from part icipat ing in said public sale
are enu mer at ed in Art. 1491 of the Civil Code, viz.:
"Art. 1491. The following persons cannot acquire
by pur c has e, even at a public or judicial auct ion,
eit her in person or t hrough the mediat ion of another:
(1) The guardian, the propert y of the person or
persons who may be under his guardians hip;
(2) Agent s, the propert y whose administ rat io n or
sale may have been int r ust ed to t hem, unless the
consent of the principal has been given;
(3) Executors and administ r at or s, the propert y
of the est at e under administ r at io n;
(4) Public officers and emplo yees, the propert y
of the St at e or of any subdivis io n thereof, or any
g o ve r n m e n t owned or co nt ro lled co r po r at io n or
inst it ut io n, the ad m i n ist r at io n of which has been
int rust ed to t hem; t his provision shall apply to judges
an d g o v e r n m e n t e xp e r t s who , i n an y m a n n e r
what soever, t ake par t in the sale;
(5) Just ices, judges, prosecut ing attorneys, clerks
of super ior and inferior courts, and ot her officers and
e mp lo yee s co nnect ed wit h t he a d m i n i s t r at io n of
just ice, the propert y and r ight s in lit igat ion or levied
upon an execut io n before the court wit hin whose
jur isdict io n or t errit or y they exercise their respect ive
fu nct io ns ; t hi s p r o h i b it io n i nc lud e s the act of
acquir ing by ass ignme nt and shall apply to lawyers,
wit h respect to the propert y and right s which may be
the object of any lit igat ion in which they may take
par t by virt ue of t heir profession;
(6) Any ot hers specially disqualified by law."
504
RUL E 3 9 E X E C U TI ON , SATI SF ACTI O N SE C . 2 0
Relat ive to Par. (6) hereof, it is provided t hat a seller

of goods who e xer c is e s the r ig h t of r esa l e is also
disqualified from part icipat ing in a public sale of said goods
(see Art. 1646, Civil Code; Maharlika Publishing Corp.,
et al. vs. Tagle, et al., G.R. No. 65594, July 9, 1986).
3. The remedy against an irregular sale is a motion

to vacate or set aside the sale to be filed in the court which
issued the writ of execut ion. A shocking inadequacy of
price at a judicial sale warr ant s the sett ing aside thereof
(Barrozo vs. Macaraeg, 83 Phil. 378) and such sale is null
and void (Prov. Sheriff of Rizal vs. CA, et al., ante), but
this rule does not apply to convent ional sales. It has been
held, however, t hat even in execut ion sales, if t here is a
r ight to redeem, the mere inadequacy of price is not
mat er ial since the judgme nt debtor may reacquire the
propert y or sell his right to redeem and thus recover any
loss he claims to have suffered by reason of the price
obtained at the execut ion sale (Barrozo vs. Macaraeg,
supra; Ponce de Leon vs. RFC, L-24571, Dec. 18, 1970).
Sec . 20 . Refusal of purchaser to pay. — If a

p u rch ase r refu ses to pay the amou n t bid by hi m for
property st ru ck off to hi m at a sale u nd er execu t i on ,
the offi c e r ma y agai n sel l the p ro p e rt y t o the
h i gh es t bidder and shall not be resp on sib le for any
loss oc ca si on e d t hereb y, but the court may ord er
the re fu si n g p u rch a s e r to pay into the cou rt the
amou n t of suc h loss, wit h cost s, and may p u n i s h
hi m for con t e mp t i f he di sob ey s the order. The
amoun t of such p aymen t shall be for the ben efit of
the person en t it led to the p roceed s of the execu t ion,
u n les s the e xe c u t i o n has bee n fully sati sfi ed, in
wh ic h even t such p roceed s shall be for the benefit
of the j u d gmen t obligor. The officer may thereafter
reject any su b seq u en t bid of such p urch aser wh o
refu ses to pay. (22a)
505
RUL E 39 R E M E D I A L LA W C O M P E N D I U M S E C S . 21 22
NOTE
1. The measur e of damages to which the judgment

creditor is ent it led against the unlawful int ervenor is the
difference bet ween t he amount which would have been
realized were it not for the illegal int ervent io n (but not to
exceed the judg ment account) and the total amo unt which
he actually recovered on the judg ment from all sources,
including the amount actually realized at the auction sale,
plus the expenses incurred as a consequence of the illegal
int er vent io n (see Mata vs. Lichauco, 36 Phil. 809).
Sec. 21 . Judgment obligee as purchaser. — Whe n

the p u r c h a s e r i s the j u d g m e n t o b l i g e e , an d n o t h i rd -
p art y c lai m ha s b ee n fi led, h e nee d not pay the
a m o u n t o f the bid i f i t d oe s no t e xc e e d the a mou n t
of hi s j u d g m e n t . I f i t d oes , he sh all pay only the
e xce s s . (23a)
Sec. 22. Adjournment of sale. — By wri t t e n con s en t

of the j u d g m e n t ob li go r an d ob li gee , or t h ei r duly
au t h o ri ze d re p re s e n t a t i v e s , the officer ma y ad j ou rn
the sale t o an y dat e an d tim e agree d upo n b y them .
Wi t h ou t su c h a g re e m e n t , h e ma y ad jou r n the sale
from da y to da y i f i t b e c o m e s n e c e s s a r y to do so for
lack of tim e to co mp l et e the sale on the da y fixed in the
n ot ice or the day to whi c h i t wa s adjourn ed. (24a)
NO TES
1. The officer may adjourn the sale from day to day

if it is necessar y to do so for lack of t ime to complete the
sale on the dat e fixed in the notice. He may not, however,
adjourn the sale to anot her dat e unless wit h t he wr it t en
consent of the part ies, ot herwise the sale t hus conducted
will be null and void (Abrozar, et al. vs. IAC, et al., G.R.
No. 67970, Jan. 15, 1988).
506
RUL E 3 9 E X E C U TI ON , SATI SF ACTIO N S E C S . 2 3 -2 5
2. When t here is a t hir d-part y claim, the ju dgment

credit or must pay his w inning bid in cash (Filipinos
Colleges, Inc. vs. Timbang, L-12812, Sept. 29, 1969).
3. A writ of execut ion in an eject ment case may be
enforced in the afternoon of a Sat urday or after office hours
(Sycip vs. Salaysay, et al., A.M. No. PI 58, Jan. 31, 1974).
Sec. 23. Conveyance to purchaser of personal property

capable of manual delivery. — When the p u rch a s e r of
any p erson a l p rop ert y, cap ab le of man u a l d eli very,
pays the pu rch as e p rice, the officer m aki n g the sale
must d eli v e r the p rop erty to the p u rch ase r and, i f
d esi red , exe cu t e and d eli ver to hi m a certi fi cate of
sale. The sal e c o n v e y s t o the p u rc h a s e r all the ri gh t
s w h i c h the j u d g m e n t ob li go r ha d i n su c h p rop erty
as of the date of the levy on exe cu t i o n or p reli mi n a ry
at t ach men t . (25a)
Sec. 24. Conveyance to purchaser of personal property

not capable of manual delivery. — Wh e n the pu rch ase r
of an y p e rson a l p rop ert y, not cap ab le of man u a l
deli very, pays the p u rchase price, the officer maki ng
the sale mu s t execu t e and d eli ver to the p u rch ase r
a certi fi cat e of sale. Suc h certi ficate con vey s to
the p u rc h a s e r all the ri ght s wh i c h the ju d g m en t
obligor had in suc h p rop ert y as of the date of the
levy on exec u t i o n or p reli min ary att ach ment. (26a)
Sec. 25. Conveyance of real property; certificate thereof

given to purchaser and filed with registry of deeds. —
Upon a sale of real p roperty, the officer mus t give
to the p u rch ase r a certi ficat e of sale cont ain in g:
(a) A particular description of the real property
sold;
(b) The price paid for each distinct lot or parcel;
(c) The wh ole price paid by him;
507
(d) A s t a t e m e n t that the ri ght of red e m p t i o n

e x p i r e s on e (1 ) y ea r fro m the d at e o f the
re gi st rat i on of the cert i fi cat e of sale.
S u c h c e r t i f i c a t e mu s t b e r e g i s t e r e d i n the
regi st ry of d eed s of the p lace wh er e the p rop erty i s
si t u at ed . (27a)
Sec. 26. Certificate of sale where property claimed by

third person. — Whe n a p rop e rt y sold by vi rt u e of a
wri t o f e x e c u t i o n ha s b ee n c l a i m e d b y a t h i r d
p erson , the cert i fi cat e of sale to be i ssu e d by the
sheri ff p u rsu an t to sect i on s 23, 24 and 25 of this Rule
shall mak e exp re s s m e n t i o n o f the e xi s t e n c e o f such
t h i rd - p art y clai m. (28a)
NO TES
1. There is no right of redempt ion where the property

sold at judic ial sale is per so na l pro pert y. Where the
propert y sold is real propert y, the period of redempt ion is
one year from and aft er the r egist r at io n of the certificate
of sale ment ioned in Sec. 25 (Rosario vs. Tayug Rural
Bank, L-26538, Mar. 21, 1968; Reyes vs. Manas, L-27755,
Oct. 4, 1969). If said cert ificate of sale is not regist ered,
the period for redempt ion does not run (Garcia vs. Ocampo,
et al., 105 Phil. 1102). But where the p art ies agreed on
the dat e of r edempt io n, t he st at ut or y period for legal
r e d e m p t io n wa s co nver t e d int o one of co nve nt io na l
redempt ion and the period binding on t hem is t hat agreed
upon (Lazo vs. Republic Surety & Insurance Co., Inc., L-
27365, Jan. 30, 1970).
2. The cert ificate of sale of real propert y is merely a

memorial of the fact of sale and does not confer any right
to the possession, much less the ownership, of the real
propert y purchased. It is the deed of sale executed by the
sheriff at the expirat ion of the period of redempt ion (see
Sec. 33) which co nst it ut es effective conveyance of the
508
RUL E 3 9 E X E C U TI ON . SATI SF ACTIO N S E C S . 2 7 -2 8
propert y sold and ent it les the purchaser to possession of

the propert y sold (see Gonzales vs. Calimbas, et al., 51
Phil. 358).
3. The clerk shall keep an execut ion book in which
he or his deput y shall record at length in chronological
order each execut ion, and the officer's ret urn t hereon by
virtue of which real propert y has been sold (Sec. 10, Rule
136).
Sec. 27. Who may redeem real property so sold. —

Real p rop e rt y sold as p rovi d ed in the last p rec ed i n g
sect i on , or an y part t h ereo f sold sep arat e ly, ma y
be re d e e m e d in the man n er h erein aft er p rovi ded,
by the fol lowi n g p erson s:
(a) The j u d g m en t obligor, or his s u c ce s s o r in
i n t erest in the whol e or any part of the p ropert y;
(b) A c re d i t o r h a v i n g a lien by vi rt u e of an
at t ach men t , j u d gmen t or mo rt gage on the p rop ert y
sold, or on som e part thereof, s u b s e q u e n t to the
lie n U ND ER w h i c h the p rop e rt y wa s s old . Su c h
re d e e m i n g cred itor is termed a red emp t i on er. (29a)
Sec. 28. Time and manner of, and amounts payable

on, successive redemptions; notice to be given and filed.
— The j u d g m e n t ob li gor , or re d e m p t i o n e r , ma y
red eem the property from the pu rchaser, at any time
wit hi n one (1) year from the date of the regi st rati on
of the certi ficat e of sale, by p ayin g the p u rch a se r
the amou n t of his p u rch as e, with one per centum
per mon t h i n t erest t h ereon in ad di tion, up to the
time of red empt i on, t oget her with the amount of any
as s e s s men t s or taxes whi ch the p u rchaser may have
paid t h e reo n after p u rch ase, and in terest on such
last n ame d amou n t at the same rate; and i f the
p u rch ase r be also a creditor h avin g a prior lien to
that of the red e mp t i on er, other than the j u d gmen t
509
UNDER wh i c h suc h p u rch as e wa s mad e, the

amount of suc h oth e r li en, wit h i n t erest .
P rop e rt y so red e e m e d ma y agai n be red ee med
wi t h i n sixty (60) days after the last re d emp t i on upon
p a y m e n t o f the su m paid o n the last red emp t i on ,
wit h tw o per centum t h e re o n in ad d i ti on , and the
am ou n t o f an y a s s e s s m e n t s o r t axe s wh i c h the last
r e d e m p t i o n e r ma y h a v e p ai d t h e r e o n aft e r
red e mp t i o n by him, wit h i n t erest on such last named
am ou n t , an d in ad d i t i on , the amou n t of any liens
held by said last red e m p t i o n e r p rior to his own, with
i n t erest . The p rop e rt y ma y be again, and as often
as a red e mp t i on e r is so d i sp osed , red e eme d from any
p re vi ou s r e d e m p t i o n e r wi t h i n si xty (60) day s after
the last re d e m p t i o n , o n p ayi n g the su m paid o n the
las t p r e v i o u s r e d e m p t i o n , wit h tw o per centum
t h e r e o n i n a d d i t i o n , an d the a m o u n t s o f an y
a s s e s s m e n t s o r t a x e s w h i c h the las t p r e v i o u s
r e d e m p t i o n e r pai d after the re d e m p t i o n th ereon ,
wit h i n t eres t t h e re on , and the amou n t o f an y lien s
hel d by the last re d e m p t i o n e r pri or to his own , with
i n t e re st .
Wri t t en n ot i c e of an y re d e m p t i o n mus t be gi ven
to the offi cer wh o mad e the sale and a d u p li cat e filed
wit h the regi st r y of d eed s of the place, and i f an y
a s s e s s m e n t s o r t a x e s ar e p ai d b y the re d e m p t i o n e
r or i f he ha s or acq u i re s an y lien ot h er th a n that u po
n wh i c h the r e d e m p t i o n wa s mad e, n ot i c e t h e reo f
mus t in like man n e r be gi ve n to the officer an d filed
wit h the regi st ry of d eed s; i f suc h n ot ic e be not filed,
the p rop ert y ma y be red e e m e d w i t h o u t p ayi n g su c h
a s s e s s m e n t s , t axes , o r liens. (30a)
Sec. 29. Effect of redemption by judgment obligor,

and a certificate to be delivered and recorded thereupon;
to whom payments on redemption made. — If the
510
RUL E 3 9 E X E C U T I O N , S AT I S F AC T I O N S E C S . 2 9 -3 0
j u d gmen t obligor red ee ms , he must make the same

p aymen t s as are req u i red to effect a red e m p t i o n by
a red emp t i on e r, wh e re u p on , no further red e mp t i o n
shall be allowed and he i s restored to his est at e. The
person to wh o m the red emp t i on p aymen t i s mad e
mus t e xe c u t e an d d eli ve r to hi m a ce rt i fi cat e of
red e mp t i on ac k n o w l ed g e d before a notary pub lic or
other officer au t h ori zed to take a c k n o w l e d g m e n t s
of c o n v e y a n c e of real p rop ert y. Suc h cert i fi cat e
must be filed and record ed in the regi st ry of d eed s
of the place in wh i c h the property i s si t u at ed, and
the regi st rar of d eed s mus t note the record t h e reo f
on the margin of the record of the cert ificat e of sale.
The p a y m e n t s m e n t i o n e d i n t h i s an d the las t
p re c ed i n g sect i on s may be made to the p u rch a se r
or red emp t i on e r, or for hi m to the officer wh o mad e
the sale. (31a)
Sec. 30. Proof required of redemptioner. — A

red e mp t i on e r mus t p rodu ce to the officer, or person
from who m he seek s to red eem, and serve with his
notice to the officer a copy of the j u d gmen t or final
order UNDER wh i c h he claims the right to red eem,
ce rt i f i e d b y the cler k o f the Cou rt w h e re i n the
j u d gmen t or final order is en tered, or, i f he red eem s
upon a mort gage or other lien, a m e m o ra n d u m of
the record thereof, certified by the registrar of deed s,
or an ori gi nal or certi fied copy of any a s si g n men t
n ecessa r y to est ab li sh his clai m, and an affidavit
exe cu t e d by hi m or his agent, sh owi n g the amoun t
then actu ally due on the lien. (32a)
NOTES
1. The "successor in int er est " of t he jud g me n t

debtor, then referred to in Sec. 29(a) (now, Sec. 27[aJ),
includes a person to whom he has transferred his right
511
of r ed e mpt io n , or one to who m he ha s conve yed his

int erest s in the propert y for purposes of redempt ion, or
one who succeeds to his propert y by operat ion of law,
or a person wit h a joint int erest in the propert y, or his
spouse or heirs (Magno vs. Viola, et al., 61 Phil. 80)
2. While the former Sec. 30 (now, Sec. 28) provided

t hat the period of redempt ion was 12 mont hs "after the
sale," said period is actually to be reckoned from the date
of registration of t he cert ificate of sale and the period has
now been changed to one year. Also, while Sec. 29(b)
de fine d a r e d e m p t i o n e r as one wh o ha s a lien by
at t achme nt or judgment , the same does not per se create
such lien as i t is the levy p u r s u a n t to said wr i t of
a t t a c h m e n t or ju d g m e n t t hat c r e at e s a lien on the
propert y; hence, the definit ion has been r est at ed to read
t hat such lien is "by virt ue" thereof.
3. The second type of proof required of a redempt ioner

has been simplified in the amended Sec. 30 hereof, it being
sufficient to submit an original or certified copy of any
assig nment necessar y to est ablish his claim, wit hout the
for mer r e q u ir e me n t t hat i t be fur t her verified by his
affidavit or t hat of a subscr ibing wit ness t her et o. The
affidavit now required is merely r egar ding the amo unt
due.
4. A "r ede mpt io ner " is defined in Sec. 27(b) as a

creditor wit h a lien subsequent to the judgme nt which was
the basis of the execut ion sale. If the lien of the creditor
is prior to the judgme nt under which t he propert y was
sold, he is not a r ede mpt io ner and, t herefore, can not
redeem because his int erest s in his lien are fully protected,
since any pur c ha ser at public auct ion of said propert y
t akes the same subject to such prior lien which he has to
satisfy. Unlike the judgme nt debtor, a redempt ioner must
prove his r ight to redeem by producing the document s
called for by Sec. 30.
512
5. The right of redempt ion is transferable and may

be vo lunt arily sold (Gomez vs. La Germinal, 37 Phil. 61),
but the said right cannot be levied upon by t he judgment
creditor so as to deprive the judgment debtor of any further
right s to the propert y (Lichauco vs. Olegario, 43 Phil.
540; cf. Gonzales Dies vs. Delgado, 37 Phil. 389).
6. Where several parcels of land were sold at public
auction to satisfy a judgment , the defendant may redeem
some of the propert ies by paying the price at which they
were sold at the auction sale. Piecemeal redempt ion is
allowed since, in the redempt ion of propert ies sold at an
execut io n sale, t he amo un t payable is no longer t he
judgment debt but the purchase price (Dulay vs. Carriaga,
et al, G.R. No. 52831, July 29, 1983). The rule is different
in the r ed e mpt io n of pr o pert ie s mo rtgaged wit h the
Philippine Nat ional Bank or the Development Bank of the
P hi lip p ines and which were foreclosed judic ially or
e xt r a ju d ic ia l l y since, UNDE R t he pro vis io ns of t he i r
respect ive chart ers, the redempt io ner must pay all the
amount s owed by the debtor on said mortgages (DBP vs.
Mirang, L-29130, Aug. 8, 1975). The same rule applies
to foreclosures by ba nk ing inst it ut io ns in view of the
provisions of Sec. 78, R.A. 337 (Ponce de Leon vs. RFC, L-
24571, Dec. 18, 1970).
7. The judgment debtor has always one year from
the regist rat ion of the certificate of sale within which to
redeem, regardless of whet her there have been any prior
redempt ions and the date of such redempt ions; and the
mo ment said judgment debtor redeems, there shall be
no furt her redempt ion. The redempt ioner, on the other
hand, must redeem within the one-year period, if he is
the first redempt ioner, and within 60 days from the last
redempt ion, if he be a subsequent redempt ioner, provided
t hat the judgment debtor has not exercised his right of
redempt ion.
513
8. As pointed out in the former edit ions of t his work,

Rule 39 t hen provided t hat the period of redempt ion was
12 mo nt hs, not one yea r as st at ed in some decisions,
reckoned from the dat e of regist rat ion of the certificate of
sale. This dist inct ion has a subst ant ial significance, and
has result ed in cont roversia l rulings, since a year consists
of 365 days while 12 mo nt hs consist of only 360 days
(Art. 13, Civil Code). Sec. 28 of t his Rule has accordingly
int roduced the a me nd me nt (of the former Sec. 30) t hat
the period of redempt ion is one year from the regist rat ion
of the cert ificate of sale (see Ysmael, et al. vs. CA, et al.,
G.R. No. 132497, Nov. 16, 1999).
9. Where the propert ies of t he defendant were duly

att ached and such preliminar y at t achme nt regist ered and
annot at ed on the cert ificates of title thereto, said properties
are in custodia legis. The ext rajudicia l foreclosure of a
prior mort gage on said propert ies and the issuance of a
wr i t of po sse s s io n in favor of the p u r c ha s e r at t he
foreclosure sale, dur ing the pendency of the action wherein
t he a t t a c h m e n t was or der ed, does not defeat t he lien
acquired by the at t aching plaintiff. Aside from the fact
t hat sai d p r o p e r t i e s ar e in custodia legis an d the
jur isdict io n of said court t hereover could not be int erfered
wit h b y a no t h e r co o r d inat e an d co-equal court , t he
at t aching creditor had acquired by operation of law the
right of redempt io n over the foreclosed propert y pur suant
to Sec. 6 of Act 3135. Said at t aching credit or may succeed
to the incident al r ight s of the debtor, such as the right of
redempt ion. The fact t hat the debtor subsequent ly waived
his right of redempt ion to a t hird person is of no moment
s ince, by t hat t ime , he ha d no more r igh t to waive
(Consolidated Bank & Trust Corp. vs. IAC, et al.,
G.R. No. 73976, May 29, 1987; cf. Top Rate International
Service vs. IAC, et al., G.R. No. 67496, June 7, 1986;
Note 6 under Sec. 7, Rule 57).
514
RUL E 3 9 E X E C U TI ON . SATI SF ACTIO N S E C S . 3 1 -3 2
10. The periods for redempt ion in Sec. 28 are not

ext endible or int errupt ed. The part ies may, however,
agree on a longer period of redempt ion but in such case, it
would be a mat t e r of co nvent io nal r ede mpt io n (Lazo
vs. Republic Surety & Insurance Co., Inc., supra) and not
the legal redempt ion under Sec. 28.
11. . It has moreover been ruled t hat under a

st at ut e limit ing the r ight of r edempt io n, the
pendency of an action, brought in good faith and
relat ing to the validit y of the sale of the propert y
involved, tolls the t er m of the r ight of redempt io n
(Consolidated Bank & Trust Corp. vs. IAC, et al., supra,
cit ing Ong Chua vs. Carr,
53 Phil. 975; see Lichauco vs. Olegario, supra).
Sec. 31 . Manner of using premises pending

redemption; waste restrained. — Unt il the e x p i r a t i o n
o f t he t im e a llo w e d for r e d e m p t i o n , the Co ur t may ,
a s i n o t he r p r o p e r cases , r e s t r a i n t he c o m m i s s io n
o f wast e o n t he p r o p e r t y b y in ju nct io n , o n t he appli •
cat io n o f t he p u r c h a s e r o r t he j u d g m e n t o blige e ,
w it h o r w i t h o u t no t ic e ; bu t i t i s no t w a st e for a
p e r so n i n p o s s e s s io n o f t he p r o p e r t y a t t he t im e o f
the sale, o r e nt it le d t o po ss e s s io n a ft e r w a r d s , d u r i n g
t he per io d a l lo w e d for r e d e m p t i o n , t o co nt i nu e t o
us e i t i n t he sam e m a n n e r i n whic h i t wa s pr e vio u s l y
used , o r t o us e i t i n t he o r d i n a r y c o u r s e o f hus •
b a n d r y ; o r t o m a k e t he n e c e s s a r y r e p a i r s t o
bu i l d i ng s t he r e o n whil e h e o ccu p ie s the p r o p e r t y .
(33a)
Sec. 32. Rents, earnings and income of property

pending redemption. — T he purchase r or a
r e d e m p t i o n e r sha l l no t b e e nt it le d t o r ece iv e the
r e nt s , e a r n i n g s an d inco m e o f the p r o p e r t y sold o n
e xe c u t io n , o r t he va lu e o f the us e an d o c c u p a t io n
t her eo f whe n suc h p r o p e r t y i s i n the po s se s s io n o f
a t e na nt . All r e nt s , e a r ni ng s an d inc o m e der ive d
515
from the p rop e rt y p e n d i n g re d e m p t i o n shall b elon g

to the j u d g m e n t ob ligor until the exp i rat i o n of his
period of re d e m p t i o n . (34a)
NOTE
1. Dur ing the period of redempt io n, the judgment

debtor is ent it led to the possession and to receive the fruits
of the pr emises and is not required to pay rent to the
creditor or pur chaser (Dizon vs. Gaborro, et al., L-36821,
June 22, 1978). In fact, it had earlier been ruled t hat if
the sher iff put s the p u r c h a s e r a t public auct io n i n
po ssessio n of t he land dur in g t he o ne- year period of
r ed e mpt io n , an act ion for forcible ent r y lies aga inst
the sheriff and said pur c has er (Fabico vs. Ong Pauco,
43 Phil. 572).
Despit e such t heor y and legal r at iona le, since the
judg ment obligor is st ill t he owner of the premises and
r ent als const it ut e civil fruits in law, the former Sec. 34
of t his Rule provided t hat if the premises are rent ed out to
a third person, the pur chaser or redempt ioner was entit led
to the r ent als, the same to be subsequent ly accounted for
and to be considered as a credit upon the redempt ion price.
Aside from the dubious basis of such a rule, t hat provision
furt her ent ailed complicat ed rules on how to credit the
r ent als and the possible effects on ext ension of the right
of redempt ion.
The p r e s e n t Sec. 3 2 ha s pu t t hi ng s ar ig h t b y
providing for the rule t hat all rent s, earnings and income
der ived from the pr o pert y pe nd in g r e de mpt io n shal l
belong to the judg me nt obligor unt il the expirat ion of his
per io d of r e d e mp t io n , an d not to the p u r c h a s e r or
redempt ioner.
Sec. 33. Deed and possession to be given at

expiration of redemption period; by whom executed or
given. — If no red e mp t i o n be mad e wi th in on e (1) year
516
RUL E 39 EXEC UTION , SATI SF ACTIO N SEC . 3 3
from the date of the regi st rat ion of the certi fi cate of
sale, the p u rch ase r is en tit led to a con ve yan c e and
p o s s e s s i o n o f the p ro p e rt y ; or, i f s o r e d e e m e d
wh e n e ve r sixty (60) days have elap s ed and no oth er
r e d e m p t i o n ha s bee n mad e , and n ot i c e t h ere fo r
given, and the time for red e mp t i on has exp i red , the
last re d e m p t i o n e r i s en t it led to the co n ve yan c e and
p o ss e s si o n , but in all case s the j u d gm en t ob ligor
shall hav e the entire peri od of one (1) year from the
date of the regi st rat i on of the sale to red ee m the
property. The deed shall be execu t e d by the officer
maki n g the sale or by his su cces so r in office, and in
the lat t e r cas e shal l h av e the sam e v a l i d i t y a s
t houg h the officer maki n g the sale had con t i n u e d
in office and e xecu t e d it.
Upon the exp i rat i on of the right of re d emp t i on ,
the p u rc h a s e r or red emp t i on e r shall be su b st i t u t ed
to and acq u i r e all the ri gh t s , t it le, i n t e re s t and
claim of the j u d gmen t obligor to the property as of
the time of the levy. The p osse ssi on of the property
shall be given to the p u rch ase r or last red e mp t i on e r
by the same officer u n less a third party is actu ally
h o ld i n g the p rop e rt y ad v e rs e l y t o the j u d g m e n t
obligor. (35a)
NOTES
1. This section was taken from the former Sec. 35

of this Rule but contains two important differences t here•
from. The r evis e d rule i s t hat the p u r c h a s e r or
redempt ioner shall now be subst it ut ed for the judgment
obligor upon the expiration of the right of redemption.
Consequently, he shall acquire all the rights, title, int erests
and claims of the judgment obligor to the property as of
the time of the levy.
UNDE R the for mer Sec. 35 , the p u r c h a s e r or
redempt ioner is subst it ut ed for the judgment obligor only
517
RUL E 39 R E M E D I A L LA W C O M P E N D I U M SEC . 3 3
"upon t he execut io n and deliver y of (the) deed" to be

executed by the officer who made the sale of the propert y.
Fut her mor e, he shall acquire t he r ight, t itle, int erest and
claim of the judgme nt debtor to the propert y as of the time
of the levy, "except as against the judg me nt debtor in
possession in which case the subst it ut io n shall be effective
as of the dat e of the deed."
The former rule, t hus, placed too much st ress upon
the physical act of execut ion of the deed of sale, both on
the mat t e r of subst it ut io n and acquisit ion of right s, as
against the aut o mat ic effect t hereon by the expirat ion of
t he r ight of r ede mpt io n which is a mat t e r of t ime or
co mput at io n. This a me nded sect ion, t herefore, avoids
unnecessar y cont roversy and complicat ions on a simple
mat t er of procedure.
2. The execut ion of the cert ificate of sale of personal

propert y sold at public auct ion "conveys to the purchaser
all t he r ight s which t he debt or had in such propert y as of
the dat e o f t he levy o n e xe c ut io n o r p r e l i m i n a r y
at t achme nt " (Sec. 24) and, in the case of real propert y,
said pur cha ser "shall be subst it ut ed to and acquire all the
r ight s, tit le, int er est and claim of the judgment debtor to
the propert y as of the t ime of the levy" (Sec. 33).
These provisio ns, accordingly, show t hat the rule of
caveat emptor applies to judicial sales of both real and
personal propert y and the sheriff does not war r an t the
tit le of t he propert y t hu s sold (Pablico vs. Ong Pauco,
43 Phil. 572). N e ve r t he le s s , a per so n dea lin g wit h
regist ered land is charged wit h notice only of liens and
encumbr ances noted on the cert ificate of t it le. Hence,
the pur c ha se r of r egist er ed land in t he execut ion sale
ha s the bet t e r r igh t over the vend ee in a pr io r con•
vent ional sale of said land where such privat e sale was
not r egist er ed in line wit h t he provisio ns of Sec. 51 ,
P.D. 1529 (Property Registration Decree ) and Art. 1514,
Civil Code (Campillo vs. CA, et al., G.R. No. 56483,
May 29, 1984).
518
RUL E 39 E X E C UT I ON , SATI SF ACTIO N SE C . 3 3
3. The same provisions also make the right of the

pur cha ser to the pro pert y r et roact to the dat e of the
levy. This fixing of the date is import ant, because, since
the sale retroact s to the date of the levy, any disposit ion
or lien in favor of t hir d per so n s cr eat e d by act s of
the debtor after the levy on real property shall not be
binding against the purchaser to whom a final deed of
sale was subsequent ly issued (Guerrero vs. Agustin, et
al., L-18117, April 27, 1963).
4. After the deed of sale has been execut ed, the

vendee t her e in is ent it led to a writ of possession but
the same shall issue only where it is the judgment debtor
or his successors in int er est who are in possession of
the pr emises. Where the land is occupied by a t hir d
part y, the court should order a hear ing to det ermine the
na t u r e of his ad ver s e po ssess io n (Guevarra, et al.
vs. Ramos, et al., L-24358, Mar. 31, 1971; Unchuan vs.
CA, et al., G.R. 78715, May 31, 1988). The writ shall
issue where the period of redempt ion has expired (Banco
Filipino vs. IAC, et al., G.R. No. 68878, April 8, 1986).
5. A writ of possession may be issued only in a land
regist rat ion proceeding, in extrajudicial foreclosure of a
real est at e mortgage and in judicial foreclosure if the
debtor is in possession and no third person, not a party to
the suit, had int ervened (Gatchalian vs. Arlegui, L-41360,
Feb. 17, 1977). It has been held, however, t hat a writ
of possession is a complement of the writ of execution.
Hence, if under a final judgment , the prevailing part y
acquir es abso lut e o wner ship over the real pr o pert y
invo lved, t he wr it may be issued for him to obt ain
possession wit hout the need of filing a separat e action
aga inst t he possessor (Olego vs. Rebueno, L-39350,
Oct. 29, 1975). A writ of possession should also be
sought from and issued by the court where a third part y
is holding the propert y adversely to the judgment debtor
(Roxas, et al. vs. Buan, et al., G.R. No. 53778,
519
RUL E 39 R E M E D I A L LA W C O M P E N D I U M SECS . 3 4
Nov. 8, 1988; cf. China Banking Corp. vs. Ordinario, G.R.

No. 121943, Mar. 24, 2003).
Sec. 34. Recovery of price if sale not effective; revival

of judgment. — If the p u rc h a s e r of real p rop erty sold
on e xe c u t i on , or hi s s u c c e s s o r in in te rest, fails to
r e c o v e r the p o s s e s s i o n t h e r e o f , o r i s e v i c t e d
t h ere f ro m, in c o n s e q u e n c e of i rre g u la ri t i e s in the
p r o c e e d i n g s c o n c e r n i n g the sale , o r b e c a u s e the
j u d g m e n t ha s bee n re ve rs e d or set asi d e, or b ecau s e
the p art y ha s v i n d i c at e d hi s clai m t o the p rop erty,
he ma y on mot i o n in the sam e act i on or in a sep arat e
act i o n recove r from the j u d g m e n t ob li gee the price
paid, wit h i n t e re st , or so mu c h t h ereo f as has not
bee n d e l i v e re d to the j u d g m e n t obli gor; or he may,
o n mot i o n h av e the ori gi n a l j u d g m en t revi ve d i n
hi s nam e for the wh ol e p ri ce wit h in t ere st , or so
mu c h t h e re o f a s ha s bee n d e li ve re d t o the j u d gme n t
ob li gor. The j u d g m e n t s o revi ve d sh all hav e the
sam e fo rc e an d eff e c t a s a n o ri g i n a l j u d g m e n t
wou l d hav e as of the date of the revi val and no more.
(36a)
NOT E
1. When the sale was not effective under the cir•

cumst ances in t his section, i t was held t hat the purchaser
may (a) br ing an act ion aga inst the ju dgment creditor
for the a mo u n t paid by him a t the ju d ic ia l sale, or
(b) file a motion in the same act ion where execut ion was
issued for the revival of the judgment in his name against
the judg me n t debtor, or (c) br ing an act ion to recover
possession of the propert y sold to him at public auct ion
(Belleza vs. Zandaga, 98 Phil. 702).
The first alt ernat ive has been modified by the present
ame nded section in t he sense t hat the pur chaser may now
also file a motion in the same action, aside from his right
520
to file a separat e action, to recover from the judgment

obligee the amount paid by said purchaser at the judicial
sale.
Sec. 35. Right to contribution or reimbursement. —

Wh e n p r o p e r t y li ab l e t o a n e x e c u t i o n a g a i n s t
several p erson s i s sold t h ereon , and more tha n a
due p rop ort i on of the j u d gmen t i s satisfi ed out of
the p roceed s of the sale of the p rop ert y of one of
t hem, or one of th e m pays, wi t h ou t a sale, more tha n
his p rop ort i on, he may comp el a con tri b u t i on from
the o t h e r s ; an d w h e n a j u d g m e n t i s u p o n a n
ob li gat ion of one of t hem, as secu ri t y for an ot h er,
and the su rety pays the amou nt, or any part thereof,
eit h er by sale of his p rop ert y or before sale, he may
comp el rep a y me n t from the p rincipal. (37a)
Sec. 36. Examination of judgment obligor when

judgment unsatisfied. — When the retu rn of a writ of
e xe c u t i o n i ssu e d agai n s t p rop ert y of a j u d gm en t
obligor, or any one of several obligors in the same
j u d g m e n t , s h o w s t h at the j u d g m e n t r e m a i n s
u n s a t i s f i e d , i n wh o l e o r i n part , the j u d g m e n t
ob li gee, at any time after such retu rn i s made, shall
b e e n t i t l e d t o a n ord e r fro m the Cou rt w h i c h
r e n d e r e d the sai d j u d g m e n t , r e q u i r i n g su c h
j u d g m e n t o b l i g o r t o a p p e a r an d b e e x a m i n e d
c o n c e rn i n g his p ropert y and in come before suc h
court or before a commi s si on e r ap p oin t ed by it, at
a sp eci fi ed time and p lace; and p roc eed i n g s may
t h ereu p on be had for the application of the p ropert y
and i n come of the j u d gm en t ob ligor t oward s the
s a t i s f a c t i o n o f the j u d g m e n t . Bu t n o j u d g m e n t
obligor shall be so requi red to appear before a court
or c o m m i s s i o n e r ou t si d e the p rovi n ce or city in
wh ich such obligor resi d es or is found. (38a)
521
NOTE
1. Formerly, the examinat io n of a judgme nt obligor

may be aut hor ized by "an order from the judge of the
Court of Fir s t I nst ance of t he province in which the
jug me n t was r ender ed or of the province from which
the execut ion was ret urned." The alt ernat ive mode was
considered unwie ldy since a pet it io n, and not a mere
mo t io n, ha d to be filed in the o t he r Court for t hat
purpose, aside from the fact t hat to a cert ain ext ent the
case may be under mined or interfered wit h. This amended
section now provides t hat the order for examinat io n of
the judg me nt obligor shall be issued only by t he court
which render ed the judgment .
Sec. 37. Examination of obligor of judgment obligor.

— Whe n the ret u r n of a writ of e xe c u t i o n again s t
the p rop ert y of a j u d g m e n t ob li gor sh ow s that the
j u d g m e n t re mai n s u n sat i s fi ed , in wh ol e or in part,
and up o n p roof t o the Cou rt whi c h i ssu e d the writ,
that a p erson , corp o rat i on , or ot he r j u ri d i c a l en ti ty,
ha s p ro p e rt y o f suc h j u d g m e n t o b li g o r o r i s
i n d eb t e d to him , the Cou rt may, by an order, req u i re
suc h p e rs o n , co rp o rat i on , or ot h e r j u ri d i ca l en ti ty,
or an y officer or me mb e r thereof, to ap p ea r before
the Cou rt or a c o m m i s s i o n e r a p p o i n t e d by it, at a
tim e an d p lac e wi t h i n the p rovi n c e o r city wh er e
suc h d eb t o r re si d e s or i s foun d, an d be exa m i n e d
c o n c e rn i n g the same . The servi c e of the ord er shall
bind all c red i t s du e the j u d g m e n t ob li go r and all
mon e y an d p rop e rt y o f the j u d g m e n t ob li gor in the
p o s s e s s i o n o r i n the c o n t r o l o f s u c h p e r s o n ,
c o rp o r a t i o n , o r j u ri d i c a l en t i t y from the tim e o f
se rvi ce; an d the Cou rt ma y als o req u i r e n ot i c e o f
suc h p ro c e e d i n g s to be gi ve n to an y part y to the
act i o n in suc h man n e r as i t ma y d ee m p rop er. (39a)
522
NOTE
1. As a mat t er of considerat ion to the obligor of a

judg ment obligor who is sought to be examined, such
examinat ion is now required to be conducted by the court
which issued the writ of execut ion, or by a commissioner
appoint ed by it, wit hin the province or city where such
debtor resides or is found. Under the former rule, such
examinat ion was allowed in any place "within the province
in which the order is served" and this could be used to
har a s s or unduly inco nvenience such debt or wit ho ut
su bs er v in g the pur po s e t hereof, especially w her e a
juridical ent it y is involved and the papers needed for the
examinat io n are at its home office.
Sec. 38. Enforcement of attendance and conduct of

examination. — A part y or ot h e r p e r s o n ma y be
c o m p e l l e d , b y a n ord e r o r s u b p o e n a , t o at t en d
b efo r e the Cou rt o r c o m m i s s i o n e r t o t est i f y a s
p rovid ed in the tw o p re ce d i n g sect i on s, and upon
fai lu re to obe y suc h order or su b p oen a or to be
sworn, or to an swe r as a wi t n es s or to su b scrib e his
d e p o s i t i o n , ma y be p u n i sh e d for co n t e mp t as in
ot h e r ca s e s . E xa m i n a t i o n s sh all not b e u n d u l y
p rolon ged, but the p roce ed i n gs may be adj ou rn ed
from ti me to time, until they are com p let ed. If the
e xa m i n a t i o n is before a com mi ssi on e r, he must take
i t i n w r i t i n g an d c e rt i f y i t t o the c ou rt . All
e x a m i n a t i o n s an d a n s w e r s b e f o r e a C o u rt o r
c o m m i s s i o n e r mus t be UNDER oath , an d wh e n a
co rp o rat i o n or oth e r j u ri d i cal enti ty an swe rs , i t
mus t be on the oat h of an au t h o ri ze d officer or
agent thereof. (40a)
Sec. 39. Obligor may pay execution against obligee.

— After a writ of e xe cu t i o n again st property has
been i ssu ed , a p erso n i n d ebt e d to the j u d gm en t
523
RUL E 39 REMEDIA L LAW COMPENDIU M S E C S . 4 0 -4 2
obligor may pay to the sheri ff h old i n g the writ of

exe cu t i o n the amou n t of his debt or so muc h t hereof
as may be n ece s sa r y to satisfy the j u dgm en t , in the
man n e r p rescri b ed in sect i on 9 of thi s Rule, and the
sheri ff' s recei p t shall be a suffici ent d i sch arg e for
the amou n t so paid or d i rect ed to be cred i t ed by the
j u d g m en t ob li gee on the execu t i on . (41a)
Sec. 40. Order for application of property and

income to satisfaction of judgment. — The cou rt may
ord e r an y p ro p e rt y o f the j u d g m e n t ob li gor , o r
mon e y du e him, not e xemp t from e xe cu t i on , in the
h an d s of ei t h e r h i mse l f or an ot h e r p erson , or of a
corp o rat i on or oth e r j u ri d i cal en ti ty, to be ap p lied
to the sat i sfact i on of the j u d gme n t , su bj ect to any
prior ri gh t s ove r suc h p rop erty.
If, upo n i n ve st i gat i o n of his cu rren t i n come and
e x p e n s e s , i t a p p e a r s th at the e a r n i n g s o f the
j u d g m e n t o b l i g o r for hi s p e r s o n a l s e r v i c e s are
more tha n n ece s sa r y for the su pp or t of his family,
the Cou rt ma y ord e r that h e pa y the j u d g m e n t
in fixed mon t h l y i n st a l l m e n t s , and upo n his failure
t o pa y an y su c h i n s t a l l m e n t wh e n du e w i t h o u t
good excu se , ma y p u n i s h hi m for i n d i re ct con t emp t .
(42a)
Sec. 41. Appointment of receiver. — The cou rt may

app oi n t a recei ve r of the p rop e rt y of the j u d gm en t
obligor, and it ma y also forbid a t ran sfer or other
d i s p o s i t i o n of, o r an y i n t e r f e r e n c e w i t h , the
p rop ert y of the j u d gm en t ob ligor not exe mp t from
exe cu t i on . (3a)
Sec. 42. Sale of ascertainable interest of judgment

obligor in real estate. — If it ap p ea rs that the j u d gmen t
ob li gor has an i n t erest in real est at e in the place in
w h i c h p r o c e e d i n g s ar e h ad , a s m o r t g a g o r o r
524
RUL E 39 E X E C U T I O N , S A T I S F AC T I O N SE C . 4 3
mo rt gag e e or o t h e rw i s e , and his i n teres t t h e rei n

ca n b e a s c e r t a i n e d w i t h o u t c o n t r o v e r s y , the
re cei ve r ma y be ord ere d to sell and con ve y suc h
real est at e or the i n t eres t of the ob li gor t h erei n ,
and su c h sale sh all be con d u ct e d in all resp ect s in
the same man n e r as i s p rovid ed for the sale of real
estate upo n exec u t i on , and the p rocee d i n gs t h ereo n
shall be ap p roved by the court before the e xe cu t i o n
of the deed. (44a)
Sec. 43. Proceedings when indebtedness denied or

another person claims the property. — If it ap p ears that
a p erso n or corp orat ion , alleged to have p rop erty
of the j u d gm en t ob li gor or to be i n deb t ed to hi m
claims an i n t erest in the p roperty ad verse to hi m
or d en i e s the debt, the court may aut hori ze, by an
order mad e to that effect, the j u d gmen t ob ligee to
i n s t i t u t e a n a c t i o n a g a i n s t su c h p e r s o n o r
co rp o rat i o n for the recove r y of suc h i n t eres t or
debt, forbid a t ran sfer or other d i sp osi t i on of such
i n t erest or debt wi th in one h u nd red t wen t y (120)
day s from n ot i c e o f the ord er , and ma y p u n i s h
d i s ob ed i en c e of such order as for con tempt. Such
order may be modi fi ed or vacat ed at any time by
the cou rt wh i c h i ssu ed it, or by the court in wh ic h
the action is brought, upon such terms as may be
just. (45a)
NOTES
1. The foregoing provisions provide the remedies

where the writ of execut ion is returned unsat isfied or
where the third part y denies his debt or the ownership of
the debtor. It will be noted that, under Sec. 43, the court
may authorize the judgment obligee to bring an action
against the person or corporation alleged to have property
of the judgment debtor. This is an example of a "party
authorized by st at ut e" to sue, even if he is not the real
525
RUL E 3 9 R E M E D I A L LAW C O M P E N D I U M SE C . 4 3
part y in int erest (see Sec. 3, Rule 3).

However, unlike the former Sec. 45 of t his Rule
which permit t ed the court to "forbid a t ransfer or other
disposit ion of such int erest or debt unt il an action can
b e co m m e nc e d an d p r o s e c u t e d t o j u d g m e n t , " its
present count erpart section limits such prohibit ion to 120
days from notice of the order. This would avoid unfair
prejudice to the claiming part y due to the indefinite period
originally provided and, besides, the court may always
modify or extend its aforest ated orders when necessary.
2. Alt hough t here may be inst ances wherein some
of the foregoing proceedings supple ment ar y to execution
may not be conducted by t he court which rendered the
judgment , i.e., where the judg ment obligor or his obligor
cannot be required to appear for examina t ion outside the
province or city where they reside (Secs. 36 and 37) and
consequent ly cannot be compelled to appear before said
court, it is still the court which rendered said judgment
which should t ake the necessary measures to reach the
propert ies of the judgme nt obligor by the issuance of an
alias wr it of execut ion (Potenciano vs. Mariano, et al., L-
30904, Mar. 6, 1980).
3. A case in which execut ion ha s been issued is

regarded as still pending and the court which rendered
the judg ment has a general supervisory control over the
execut ion proceedings with the right to det er mine every
quest ion of law or fact involved t herein. Only when the
judg me nt has been fully sat isfied does the same pass
beyond review by said court (Seavan Carrier, Inc., et al.
vs. GTI Sportwear Corp., et al., G.R. No. 65953, July 16,
1985).
4. Wit h regard to receivership as an aid to execution

under Sec. 41 of t his Rule, i t has been held t hat the
provisions of Rule 59 are applicable, for instance, to the
procedure, requir ement s for a bond and the funct ions of
526
RUL E 3 9 E X E C U T I O N , S AT I S F AC T I O N S E C S . 4 4 -4 5
the receiver (Central Sawmills, Inc. vs. Alto Surety &

Insurance Co., Inc., L-24508, April 25, 1969).
Sec. 44. Entry of satisfaction of judgment by clerk of

court. — S at i sfact i on of a j u d gmen t shall be ent ere d
by the clerk of cou rt in the court d ocket, and in the
e x e c u t i o n b ook , u p o n the r e t u r n o f a wri t o f
e x e c u t i o n s h o w i n g the full s a t i s f a c t i o n o f the
j u d gmen t , or upo n the filing of an admi s si o n to the
s a t i s f a c t i o n o f the j u d g m e n t e x e c u t e d an d
ac kn ow l e d g e d in the same man n e r as a c o n v e y an c e
of real p rop ert y by the j u d gmen t ob li gee or by his
coun se l u n les s a revocat i on of his au th orit y is h i ed ,
or upo n the e n d o rs e m e n t of such ad mi ssi on by the
j u d gmen t ob li gee or his cou n sel on the face of the
record of the j u d gmen t . (46a)
Sec. 45. Entry of satisfaction with or without

admission. — Wh en e ve r a j u d g me n t is sat i sfi ed in
fact, o r o t h e r w i s e t h a n up o n a n e x e c u t i o n , o n
d e m a n d o f the j u d g m e n t ob li gor , the j u d g m e n t
o b l i g e e o r hi s c o u n s e l m u s t e x e c u t e an d
a c k n o w l e d g e , o r i n d o r s e , a n a d m i s s i o n o f the
s a t i s f a c t i o n a s p ro v i d e d i n the las t p r e c e d i n g
secti on, and after noti ce and upon mot ion the cou rt
ma y o rd e r e i t h e r the j u d g m e n t o b l i g e e o r hi s
c o u n s e l t o d o so , o r ma y ord e r the e n t r y o f
sat i sfact i o n to be mad e wi t h ou t suc h ad mi s si on .
(47a)
NOT E
1. Ent r y of sat isfact ion of the judgment shall be

made in the court docket and in the execution book on the
bases of:
(a) The ret urn of an execut ion satisfied by action
of the sheriff in accordance with this Rule;
527
RUL E 39 REMEDIA L LAW COMPENDIU M S E C S . 46 , 47
(b) An admissio n of t he sat isfact ion of jud gment

execut ed and acknowledged in t he same manner as a
conveyance of real propert y by the judgment obligee or
his counsel;
(c) The i n d o r s e m e n t of such ad m is s io n by t he
judgment creditor or his at torney on the face of the record
of the judgment ; or
(d) By order of the court, upon sat isfactory proof of
such satisfact ion of judgment .
Sec. 46. When principal bound by judgment against

surety. — Whe n a j u d g m e n t is r e n d e r e d a g a i n s t a
p a r t y wh o s t a nd s a s s u r et y for a no t h e r , t he lat t e r
i s als o bo u n d fro m t he t im e t hat h e ha s not ic e o f
t he act io n o r p r o c e e d i n g , an d a n o p p o r t u n i t y a t the
s u r et y' s r e q u e s t t o jo i n i n t he de fe ns e . (48a)
NOT E
1. The converse of t his rule is not true, because in

order t hat the sur et y may be bound by the judg me nt
against his principal, such suret y must be impleaded in
the action (Montejo us. Hilario, 58 Phil. 372) or given an
opport unit y to be heard, ot herwise the writ of execution
issued against the suret y is void (Luzon Surety Co., Inc.
vs. Beson, et al., L-26865-66, Jan. 30, 1970).
Sec. 47. Effect of judgment or final orders. — The

effect of a j u d g m e n t or final o r d e r r e n d e r e d by a
C o u r t o f t he P h i l i p p i n e s , h a v i n g j u r i s d i c t i o n t o
p r o n o u n c e t he j u d g m e n t o r fina l o r de r , ma y b e a s
fo llo ws:
(a) In cas e of a j u d g m e n t or fina l o r d e r a g a i n s t
a spec if ic t hi ng , or in r e s p e c t to t he p r o ba t e of a
will, or t he a d m i n i s t r a t i o n of the e st at e of a decease d
p e r s o n , o r i n r e s p e c t t o t he p e r s o na l , po lit ic a l , o r
lega l c o nd it io n or s t a t u s of a p a r t i c u l a r p er so n or
528
RUL E 3 9 E X E C U T I O N , S AT I S F AC T I O N SEC . 4 7
his re lat i on sh i p to an oth er, the j u d gmen t or final

order i s con clu si ve upon the title to the t hi ng, the
will or ad m i n i st rat i on , or the con d i t ion , statu s or
re lat i on sh i p of the p erson; h owever, the p rob at e of
a will or g ran t i n g of lett ers of ad mi n i st rat i on shall
only be prima facie evi d en c e of the d eat h of the
t est at or or int est at e;
(b) In oth er cases, the j u d gmen t or final order
is, wit h resp ect to the matter di rect ly adju dged or
as to any other matt er that could have been raised
in relat ion t h eret o, con clu si ve b et wee n the part ies
and t h ei r su cc es s o r s in in terest by title su b seq u e n t
t o the c o m m e n c e m e n t o f the a c t i o n o r s p e c i a l
p roceed in g, li t i gat i n g for the same t hin g and u nd er
the same title and in the same capacity; and
(c) In any ot her lit igat ion b et wee n the same
p arti es or their su cce sso r s in interest, that only i s
d eemed to have been adjudged in a former j u d gmen t
or final ord er wh i c h ap p ears upon its face to have
b ee n s o a d j u d g e d , o r w h i c h wa s a c t u a l l y an d
n ecessa ri ly i n c lu d ed t h erei n or n ecessa ry t h eret o.
(49a)
NOTE S
1. This section enunciat es the rules on res judicata

[or bar by for mer ju d g me nt , or dir ect est o ppe l by
judgment] and conclusiveness of judgment [or estoppel by
verdict, or estoppel by record, or collateral estoppel by
judgment] (Manila Electric Co. vs. CA, et al., L-33794,
May 31, 1982). Res judicata is furt her referred to as,
because it has the effect of, the doctrine on preclusion of
claims. Conclusiveness of judgment has the effect of
preclusion only of issues, and is also referred to as the
rule of outer action pendant. Par. (a) is the rule on res
judicata in judgment s in rem; par. (b) is the rule on res
judicata in judgment s in personam; and par. (c) is the
529
rule on conclusiveness of judgment .

2. In res judicata, the part ies and the causes of action
in both actions are ident ical or subst ant ially the same.
The judgment in the first action is conclusive as to every
mat t er offered and received t herein and as to any other
mat t er admissible t her ein and which might have been
offered for t hat purpose, hence it is an absolute bar to a
subsequent action for the same cause (Yusingco, et al. vs.
Ong Hing Lian, infra; Vergara vs. Roque, et al., L-32984,
Aug. 26, 1977).
In conclusiveness of judgment , the parties in both
act ions may be the same but the causes of act ion are
different. Hence, the judg me nt in the first is binding
only wit h r espect to the mat t er s act ually raised and
adjudged t herein (see Pehalosa vs. Tuason, 22 Phil. 303;
Viray vs. Marinas, et al., L-33168, Jan. 11, 1973) and is
not a bar to anot her action bet ween the same part ies but
on a different cause of action.
3. The requisit es for res judicata are:

(a) The former judgment or order must be final;
(b) It must be a judgment or order on the merit s,
t hat is, it was rendered after a consideration of the evidence
or st ipulat io ns submit t ed by t he part ies at the trial of the
case;
(c) It must have been rendered by a court, having
jur isdict ion over the subject - mat t er and the part ies; and
(d) There mus t be, bet ween the first and second
act io ns, ide nt it y of part ie s , of su bje ct - mat t er and of
cause of action. This requisite is satisfied if the two actions
are subst ant ially bet ween the same part ies (see Nator vs.
CIR, L-16671, Mar. 30, 1962; Malvar vs. Palingayan, L-
24136, Sept. 27, 1966; Yusingco, et al. vs. Ong Hing Lian,
L-26523, Dec. 24, 1971; Aroc vs. PHHC, L-39674, Jan. 31,
1978; Gitgano vs. Borromeo, et al., L-40429, Nov. 29,
1984).
530
RUL E 39 E X E C U T I O N . S A T I S F AC T I O N SE C . 4 7
To be more accurat e, the first requir ement should

properly state t hat the former judgment or final order must
be final and executory (see notes under Sec. 1, Rule 39).
Regarding the second requisit e, note should be taken
of the fact t hat , alt ho ugh t her e has been no t r ial or
pr esent at io n and co nsiderat ion of evidence t her ein, a
dis missa l of the co mp la int UNDE R t he c ir cu mst ance s
provided in Sec. 3, Rule 17 shall have the effect of an
adjudicat ion of the case on the mer it s, unless otherwise
declared by the court. The same rule applies when t he
case is dismissed for non-suit due to the unjustified failure
of t he plaint iff to appea r at the pr e-t r ial of his case
(Sec. 5, Rule 16).
The dismissal by the Supreme Court of a petit ion for
review on cert iorari t hrough a minut e resolut ion is an
adjudicat ion on the mer it s and const it ut es a bar to a
relit igat ion of t he case under the rule of res judicata
(Commercial Union Ass. Co., Ltd., et al. vs. Lepanto
Consolidated Mining Co., et al., L-43342, Oct. 30, 1978;
Sy vs. Tuvera, etc., et al., G.R. No. 76639, July 16, 1987).
4. There is identit y of part ies, not only where the

part ies in both actions are the same, but also where the
actions are between those in privity with them, as between
t heir successors in int erest by t it le subsequent to the
commencement of the action, lit igat ing for the same thing
and under the same title and in the same capacity, or where
there is subst ant ial ident it y even if there are addit ional
part ies (see Aquino vs. Sanvictores, 89 Phil. 532; Hanopol
vs. Pilapil, L-19248, Feb. 28, 1963; Cantillana vs. Heirs
of Frank Scott, L-39450, Aug. 29, 1980), especially so
where the addit ional part y was not a proper party in the
first or the second action (Mallari, et al. vs. CA, et al., L-
26467, July 15,1981), or is a mere nominal party (Medija vs.
Patcho, et al., L 30310, Oct. 23, 1984). See further t he
i l lu s t r at iv e cases of Salud vs. CA, et al. (G.R. No.
100156, June 28, 1994) and Heirs of Vda. de Roxas
531
vs. CA, et al (G.R. No. 138660, Feb. 5, 2004).

Where, however, in a prior case the part ies were co-
defendant s wit hout any hostile or conflicting claims raised
in issue or adjudicat ed as bet ween them, and the second
action is bet ween t hem as plaint iff and defendant, t he
ju d g me n t in t he first act io n does not co nst it ut e res
judicata to bar the second action as t here is no ident ity of
p a r t ie s in bot h act io n s (Valdez vs. Mendoza, 89 Phil.
83; Carandang, et al. vs. Venturanza, et al., L-41940, Nov. 21,
1984).
5. There is ident it y of causes of action when the

ju d g me n t so ugh t will be inco ns ist e nt wit h the prior
judg ment (Tan vs. Arador, et al, L-38745, Aug. 6, 1975)
or if the same evidence will sust ain the second action
(1 Martin 161162, cit ing 34 C.J. 805; Aroc vs. PHHC,
supra; Vda. de Vocal vs. Vda. de Suria, et al, L-26281,
May 31, 1979) even if the forms or nat ure of the two
act ions be different (Cayco, et al. vs. Cruz, 106 Phil. 65;
Gitgano vs. Borromeo, et al, supra).
6. The doctrine of res judicata does not apply where

the second action is precisely to annul the judgment in
the first action, as one of the requisit es of res judicata is
t hat t here must be a former valid judgment (Almeda vs.
Cruz, 84 Phil. 636; Dayrit vs. Dayrit, et al, 97 Phil. 758).
Neit her does said doctrine apply where the action is to
annu l the execut ion sale and act s done in pur suanc e
thereof as t here is no ident ity between the part ies, subject-
mat t e r and cause of act ion involved in t he case, the
decis io n w her e i n wa s the subject of the challe nged
exe cut io n sale (Ramos, et al. vs. Pablo, et al, G.R.
No. 53682, Nov. 26, 1986).
Thus, even if t he part ies in both actions remain the
same, t here can be no ident it y in the subject-matt er since
t hat in the judg ment sought to be annulled is the thing,
contract, propert y or wrongful act involved in the action,
while in the case for annulment the subject-matt er is the
532
RUL E 39 E X E C UT I ON , SATI SF ACTIO N SEC . 4 7
judgment rendered in t hat action. Neit her can t here be

identit y in the causes of action as the cause of action in
the first is the delict or wrong committed by t he defendant
in violat ion of t he pr imar y right s of t he plaintiff, while
t hat in the act ion for a n nu l m e nt of ju dg me n t is the
wrongful obt ent ion t hereof t hro ugh ext rinsic fraud or
despite lack of jur isdict ion over the case.
7. The former rule was t hat a court of concurrent

jurisdict ion can not open, modify or vacate the judgment
of anot her court as such power is rest ricted to the court
which r e nd e r e d the ju d g m e n t (Mas vs. Dumaraog, L-
16252, Sept. 29, 1964); neit her can anot her branch of the
same court do so (Sterling Investment Corp. vs. Ruiz, L-30694,
Oct. 31, 1969).
As hereinbefore discussed, the doctrines in these cases
were subsequent ly abandoned, the Supreme Court holding
t hat a Court of First Inst ance or a branch thereof had the
aut horit y and jurisdict ion to take cognizance of and to act
in a suit to annul a final and executory judgment or order
rendered by anot her Court of First Instance or branch
thereof (Dulap, et al. vs. CA, et al, L-28306, Dec. 18,
1971), and t he doct r ines in Dumaraog and Sterling
Investment Corporation were set aside, since to sust ain
the same would amount to judicial legislat ion (Gianan
vs. Imperial, et al, L-37963, Feb. 28, 1974). This was
reit erat ed in Francisco, et al. vs. Aquino, et al. (L-33235,
July 22, 1976), alt hough in Manalo vs. Mariano, et al. (L-
33850, Jan . 22, 1976), i t was again held t hat the
jurisdict ion to annul the judgment of a branch of a Court
of F ir s t I ns t a nc e be lo ngs to t hat br a nc h a lo ne .
Subsequent ly, the doctrine in Dulap was reit erated in
Singson, et al. vs. Saldajeno, et al. (L-27343, Feb. 28,
1979).
The conflict ing do ct r ines in the aforesaid cases
have now been set at rest. Under B.P. Blg. 129, the
I nt er med iat e Appellate Court shall exercise exclusive
533
origina l jur isd ict io n over act io ns for the a n nu l m e nt

of judgment s of the Regional Trial Courts (Sec. 9). The
Regio nal T r ia l Co urt s shall have exclusive o r igina l
jur isdict ion over actions for the annu lme nt of judgment s
of Met ropolit an Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Court s (Sec. 19).
8. The rule of res judicata applies to final decisions
of quasi-judicial agencies (Amistoso vs. Ong, et al., G.R.
No. 60219, June 29, 1984). It also applies to judgment s
rendered in probat e proceedings (Sy Kao, et al. vs. CA, et
al., G.R. No. 61752, Sept. 28, 1984). In a land regist rat ion
pr o ceeding, filed by t he pla int iff aft er he had been
declared the owner of the land involved in a civil case, the
opposition t heret o, filed by the defendant who lost in said
civil case, is barred in said land regist rat ion proceeding
under the doctrine of res judicata. All the element s are
present and it is of no moment t hat the court in the civil
case was in the exercise of general jurisdict ion and in the
land regist rat ion case, in the exercise of special or limited
jur isdict ion. The cont rary ruling in Abellera vs. Farol
[74 Phil. 284] is abandoned (Valisno, et al. vs. Plan, et
al, G.R. No. 55152, Aug. 19, 1986).
Sec. 48. Effect of foreign judgments or final orders.

— The ef fec t of a j u d g m e n t or fina l ord e r of a
t ri b u n al of a forei gn coun t ry, h avi n g j u ri sd i ct i o n
to ren d e r the j u d gm en t or final ord er i s as follows:
(a) In cas e of a j u d g men t or final order u po n a
s p e c i f i c t h i n g , the j u d g m e n t o r fi n a l ord e r i s
con c lu s i v e upo n the title to the thing; and
(b) In cas e of a j u d g m en t or final ord er again s t
a p erson, the j u d gmen t or final order is p re su mp t i ve
evi d en c e of a right as b et we e n the p art i es and thei r
su cc e s so r s in i nt ere s t by a s u b s e q u e n t title.
In ei t h e r case, the j u d gm en t or final order may
be rep e l led by evi d en c e of a wan t of j u ri sd i ct i on ,
534
RUL E 3 9 E X E C U T I O N , S A T I S F AC T I O N SEC . 4 8
want of notice to the party, collu si on, fraud, or clear

mi st ak e of law or fact. (50a)
NOTE S
1. Par. (a) is the rule on foreign judgment s in actions

in rem, and par. (b), in actions in personam.
2. The judg me nt of a foreign t r ibu na l cannot be
enforced by execution in the Philippines. Such judgment
only creat es a right of action and its non-satisfact ion, a
cause of action, and it is necessary t hat a suit be brought
upon said foreign judgment in our local courts (see Perkins
vs. Benguet Consolidated Mining Co., et al., 93 Phil. 1035).
3. In a suit upon a foreign judgment against a person

in our local court s, the defendant may int erpose the
defenses in par. (b). If, however, the defendant had also
been a part y to and actually participated in the proceedings
in the foreign court, he is bound by the judgment t herein
and the doctrine of res judicata will apply to such foreign
judg ment (General Corporation of the Philippines vs.
Union Insurance Society of Canton, Ltd., et al., 37 Phil.
313).
4. Generally, the judgment of a foreign court is only
pr e su mpt iv e evidence of a r ight on the par t of t he
prevailing part y and if suit t hereon is brought in the
Philippines, the same may be repelled by evidence of clear
mist ake of law (Soorajmull Nagarmull vs. Binalbagan
Isabela Sugar Co., Inc., L-22470, May 28, 1970). See
the illust rat ion and discussion of this section in Asiavest
Merchant Bankers (M) Berhad vs. CA, et al. (G.R.
No. 110263, July 20, 2001).
5. In Mijares, et al. vs. Ranada, etc., et al. (G.R. No.
139325, April 12, 2005), the Supreme Court reit erat ed and
amplified the procedural rules on the recognition and
enforcement of foreign judgment s embodied in Sec. 48 of
535
RUL E 3 9 R E M E D I A L LAW C O M P E N D I U M SE C . 4 8
this Rule. It observed t hat while the foreign judgment s

cont emplat ed t her ein may be conclusive, if in rem, or
presumpt ive, if in personam, it is necessary t hat "in eit her
case" a civil action should be filed in our courts, primarily
to allow the losing part y an opport unit y to challenge the
judg ment on the grounds provided in said section and
defend itself against the enforcement of that decision in
the local forum.
That civil action, both for adjective and jurisdict ional
purposes, is considered as one incapable of pecuniar y
est imat ion and such categorizat ion is binding in assessing
the docket and ot her filing fees under the schemat ic table
in Rule 141. It is t rue t hat the foreign judgment may
ult imat ely result in recovery by the plaint iffs of monetary
or pro pr iet ar y awar ds , but in an or dinar y act ion for
monet ary relief, t he cause of action e manat es from the
violation of the r ight s of the plaint iff t hrough an act or
omission of the defendant ; while in the enforcement of a
foreign judgment , the cause of act ion and subject -matt er
are the foreign judgme nt itself. In the former, t here must
be proof of the wrongful act of the defendant , while in the
latt er, the mat t er left for proof is the foreign judgment
itself, not the facts from which it prescinds.
Sec. 48 restrict s the act ionable issues or grounds for
challenging t he foreign judgme nt . Such limit at ion on
the review of a foreign judgment is adopted in all legal
syst ems to avoid repet it ive lit igat ion on claims and issues,
pr eve n t h a r a s s m e n t of the par t ie s and avoid undu e
imposit ion on the court s. This policy of preclusion rests
on principles of comity, utilit y and convenience of nat ions.
As a generally accepted principle of int ernat io nal law, it
is par t of the law of the P hil ipp ines by virt ue of the
incorporat ion clause of the Const it ut ion (Sec. 2, Art. II).
See also the discussion in Raytheon International, Inc.
vs. Rouzie, Jr. (G.R. No. 162894, Feb. 26, 2008).
536
RULE 40
APPEAL FROM MUNICIPAL TRIAL COURTS

TO THE REGIONAL TRIAL COURTS
Section 1. Where to appeal. — An app eal from a

j u d gmen t or final order of a Municipal Trial Court
may be take n to the Regional Trial Court e xe rci si n g
j u r i s d i c t i o n ove r the are a t o wh i c h the forme r
p ert ai n s. The title of the case sh all remai n as i t
was in the court of ori gi n, but the party ap p ea l i n g
the case shall be further referred to as the ap p ellan t
and the ad ve rse party as the app ellee, (n)
NOTE
1. The former Sec. 1 of Rule 40 provided t hat an

appeal from an inferior court should be taken "to the Court
of First Instance of the province where the judgment was
rendered." However, Sec. 18 of B.P. Blg. 129 t hereaft er
provided t hat the Supreme Court shall define the territory
over which a br anch of the Regional Trial Court shall
exercise its aut horit y. The territory t hus defined shall,
inter alia, determine the lower courts over which the said
branch may exercise appellat e jurisdict ion. Sec. 21 of
the Int erim Rules later implemented said provision on
appeals to the Regional Trial Court from cases decided
by t he lower co ur t s, inc luding t he basic pr o cedur e
therefor. Start ing with Administrat ive Order No. 3, dated
J a n u a r y 19, 1983, t he S upr e me Court defined t he
t erritorial jurisdict ion of the Regional Trial Courts and
specifically t hat of the branches thereof.
Sec. 2. When to appeal. — An appeal may be taken

within fifteen (15) days after notice to the ap p ellant
of the ju dgment or final order appealed from. Where
a record on appeal is required, the app ellant shall
537
file a n oti ce of app eal and a record on app eal within

thirty (30) day s after n oti ce of the j u d gm en t or final
order.
The peri od of ap p eal shall be i n t e rru p t ed by a
t i mely mot i o n for ne w trial or rec on si d e rat i on . No
mot i o n for e xt e n s i o n of tim e to file a mot ion for new
trial or re co n s i d e rat i o n sh all be allo wed , (n)
NOTE
1. P ur suant to R.A. 7691 , the municipal trial courts

now have probat e jur isdict io n where the gross value of
the est at e, whet her t est at e or int est at e, does not exceed
FIOO.OOO or, if in Metro Manila, P200.000. As provided
in Sec. 3 of t hi s Rule, an appea l from such special
proceeding shall be by r ecord on appeal. The regle-
me nt ar y periods of appeals from t he inferior court are
the same as those from the Regional Tr ial Courts.
The second par agr aph of t his section, regarding the
int errupt io n of the period of appeal and the prohibit ion of
a motion for ext ension to file a motion for new trial or
reconsiderat ion is likewise t he same as the rule thereon in
the Regional Trial Court s (Sec. 3, Rule 41). This is in
consonance wit h the policy on unifor mit y of procedure in
both court s.
Sec. 3. How to appeal. — The ap p eal is t aken by

filing a noti ce of ap p eal wit h the court that rendered
the j u d g m e n t or final ord e r ap p ea l e d from. The
n ot i c e of ap p eal shal l i n d i cat e the p art i es to the
app eal, the j u d g m e n t or final order or part t h ereof
ap p ealed from, and state the mat eri al d at es sh owi n g
the t i m e l i n e s s of the ap p eal.
A record on ap p eal shall be req u i re d only in
sp eci al p ro c e e d i n g s and in oth e r case s of multip le
or sep arat e ap p eals .
RUL E 4 0 A P P E A L FRO M TH E M U N I C I P A L TRI AL C O U R T S S E C S . 4 , 5
T O TH E R E G I O N A L TRI AL C O U R T S
The form and con t en t s of the record on ap peal

shall be as p rovi d ed in sect i on 6 , Rule 41 .
Copies of the not i ce of app eal, and the record
on ap p eal wh er e req ui red, shall be served on the
ad verse party, (n)
NOTE
1. Jus t like Sec. 5, Rule 41 on notice of appeal from

the Regional Trial Court, it is required by t his amended
section t hat the notice of appeal shall indicate not only
the part ies but also the judg ment or final order or part
thereof appealed from, toget her with the mat erial dat es
showing the t imeliness of the appeal. The last ment ioned
r eq u ir e me n t i s t he same as the " mat er ia l dat a rule"
applicable to records on appeal with respect to the contents
thereof, and for the same reasons which impelled the
adoption of t hat rule.
Sec. 4. Perfection of appeal; effect thereof. — The

p erfecti on of the ap p eal and the effect t h ereof shall
be govern ed by the p rovi si on s of sect i on 9 , Rule 41 .
(n)
NOTE
1. Since appeals from the inferior courts may now

be eit her by notice of appeal or record on appeal, the rules
on the perfection and the effect thereof are the same. See
the discussion thereof in the notes under Sec. 9, Rule 41 .
Sec. 5. Appellate court docket and other lawful fees.

— Wi t h i n the p e ri o d for t a k i n g an app ea l , the
app ellant shall pay to the clerk of the court whi c h
ren d ered the j u d gmen t or final order appealed from
the full amount of the appellate court docket and
other lawful fees. Proof of p aymen t t h ereof shall
be t ran smitt ed to the appellate court toget h er with
539
the ori gin al record or the record on app eal, as the

case may be. (n)
NOT E S
1. Prior to B.P. Blg. 129, t here were holdings t hat

the failure to pay the docket fee wit hin the reglement ar y
period was fatal to an appeal (Dacudao vs. Duenas, et al.,
108 Phil. 95; Lanting vs. Guevarra, et al., L-22799,
April 25, 1969). If the docket fee paid was insufficient
due to an error of the t reasur er, the appeal should not be
dismissed (Barnido, et al. vs. Balana, et al., L-26275,
July 26, 1966). Thereaft er, in NAWASA vs. Secretary of
Public Works and Communications (L-20928, Mar. 31,
1966) and Favis, et al. vs. Municipality of Sabangan (L-
26522, Feb. 27, 1969), it was held t hat non-payment of
the docket fees does not automat ically result in dismissal of
the appeal or affect the appellat e jur isdict ion of the Court
of First Inst ance, the dismissal being discret ionary in the
appellat e court if t here are just ificat ions for its non•
payment (see Fontanar, et al. vs. Bonsubre, et al., G.R.
No. 56315, Nov. 25, 1986).
2. It is true t hat this section requires the payment of

the full amount of the appellat e court docket and other
lawful fees wit hin the period for t aking an appeal. It is
suggest ed, however, t hat the foregoing rulings t hat non•
payme nt or incomplet e pa yment of the fees required on
appeal do not automat ically result in the dismissal of the
appeal should be maint ained.
The failure to pay the docket and ot her lawful fees is
also a ground for the dismissal of the appeal in the Court
of Appeals (Sec. l[c], Rule 50) and in the Supreme Court
(Sec. 5[c], Rule 56). However, it has heretofore been held
t hat even in said appellate courts, with the exception of
failure to file the notice of appeal or record on appeal
wit hin the reglement ar y period, it is not the minist erial
duty of the court to dismiss the appeal where one of the
540
RUL E 4 0 AP P E AL FRO M TH E M U N I C I P A L TRI AL C O U R T S S EC . 6 T
O TH E R E G I O N A L TRI AL C O U R T S
grounds therefor obtains (see notes under Sec. 1, Rule

50). More specifically, the non-payment of the appellate
court docket fee is not a mandatory ground for dismissal
of the appeal (Panes vs. CA, et al., G.R. No. 58321,
Jan. 31, 1983). And alt hough involving the mat t er of non-
payment or incomplete payment of docket fees in the filing
of original act ions, the liberalized att it ude of the Supreme
Court in Sun Insurance Office Ltd., modifying the doctrine
in Manchester Development Corporation (see notes under Sec.
5, Rule 1), would bolster this submission.
I t ha s lat ely been held, ho wever, t hat a st r ic t
applicat ion of t he rule on the payment of docket fees in
the Court of Appeals should be adopted, on the theory
t hat p a yme n t in full of the docket fees wit hin the
prescribed period is mandatory (Pedrosa vs. Hill, et al.,
G.R. No. 120804, June 14, 1996). It will nonet heless be
observed t hat in t hat case, despit e t imely notice and
admonit ion from the appellate court, appellant s paid the
docket fee 4 mont hs after the date of notice, and the
reasons given by t hem for such default were considered
by the appellate court as reflective of their lack of int erest
and inexcusable let hargy in pursuing their appeal.
Reliance for said ruling was placed on the holding in
Guevarra vs. Court of Appeals (L-43714, Jan. 15, 1988)
but, again, in said case the docket fees were paid 41 days
late and on the flimsy excuse t hat the delay was due to
"inadvertence, oversig ht and pressure of work." It would
app e ar , t her e fo r e , t hat while co mp liance wit h the
requir ement for timely payment of docket fees on appeal
is mandatory, the appellat e court is not without power to
make exceptions t hereto on justifiable cause, instead of
dismissing the appeal on t hat sole ground.
Sec. 6. Duty of the clerk of court. — Within fifteen

(16) days from the perfection of the appeal, the clerk
of court or the b ranch clerk of court of the lower
Cou rt shal l t ra n s m i t the ori gi n a l re cor d o r the
541
re co r d o n ap p ea l , t o g e t h e r wit h the t ra n s c ri p t s
and exh i b i t s , wh i c h he shall certi fy as comp let e, to
the p rop e r R e g i o n a l Tri al Court. A cop y of his
ce rt i fi cat i on shall be fu rn i sh ed the part i es, (n)
NOTE
1. This was t aken from t he former Sec. 5, Rule 40

and Par. 21(b) of the Int er im Rules, wit h the modification
t hat aside from the original record or the record on appeal,
the transcr ipt s and exhibits taken or submitted in the lower
court shall be elevated to the Regional Trial Court. The
lower court, being a court of record, t ranscr ipt s of the
proceedings t her ein and the document ar y evidence of the
part ies may be involved in the appeal, hence t he specific
ment ion thereof and the extension of the period from the
origina l 5 days to 15 days wit hin which t he clerk of
court should comply wit h his dut y under this sect ion. A
cer t ific at io n of the c o mp l e t e ne s s of the do cu me nt s
t rans mit t ed to the appellat e court must be furnished to
the part ies for t heir verificat ion and appropriat e action.
Sec. 7. Procedure in the Regional Trial Court. —

(a) Upo n rec ei p t of the comp let e record or the
record on ap p eal, the clerk of cou rt of the Regional
Trial Cou rt shall noti fy the p art i es of suc h fact.
(b) Wit hi n fifteen (15) day s from suc h n ot ice,
i t shal l be the dut y of the ap p e l l a n t to sub mi t a
m e m o r a n d u m w h i c h s h a l l b r i e f l y d i s c u s s the
errors i mp u t e d to the lower court, a copy of wh i c h
sh al l b e f u rn i s h e d b y hi m t o the ad v e r s e party.
W i t h i n f i f t e e n (15 ) d ay s fro m r e c e i p t o f the
app ellant ' s m e m o ra n d u m , the app ell e e ma y file his
m e m o r a n d u m . Fai lu r e of the a p p e l l a n t to file a
m e m o ra n d u m shall be a grou n d for di s m i s s a l of the
ap p eal.
542
RUL E 4 0 A P P E A L FR O M TH E M U N I C I P A L TRI AL C O U R T S S EC . 8 T
(c) Upon the filing of the m e m o ra n d u m of the

ap p el lee, or the exp i rat i on of the period to do so,
the case shall be con si d ered su b mi t t ed for d eci si on .
The Regi on al Trial Court shall d eci de the cas e on
the basis of the entire record of the p roceed i n g s had
in the cou rt of origin and suc h m e mo ran d a as are
filed, (n)
NOTES
1. This was t ake n from Par. 21(c) and (d) of the

Int erim Rules, wit h a clarification on the cont ent s and
the sequence in the filing of the memoranda of the part ies.
2. The requirement in Sec. 7(b) for the submission of
appellant ' s memor andum is a mandatory and compulsory
rule. Non-compliance t herewit h aut horizes the dismissal
of the appeal (Enriquez vs. CA, et al., G.R. No. 140473,
Jan. 28, 2003).
3. Under the former procedure, and there appears to

be no reason for depart ing therefrom, where the part y
had appeared by counsel in the inferior court, the notice
contemplated in this section should be sent to the attorney
(Elli, et al. vs. Ditan, et al., L-17444, June 30, 1962; see
also Sec. 21, Rule 138); but if the notice was sent to the
part y himself and he actually received the same, such
not ice is valid and binding (Valenzuela vs. Balayo, L-
18738, Mar. 30, 1963; Cordoviz vs. De Obias, L-21184, Sept.
5, 1967).
Sec. 8. Appeal from orders dismissing case without

trial; lack of jurisdiction. — If an ap p eal is t ake n
from an ord er of the lower cou rt d i s mi s si n g the
case with out a trial on the merit s, the Regional Trial
Court may affirm or reverse it, as the case may be.
In case of affirmance and the ground of d i smi ssal is
lack of j u ri sd i ct i on over the su b ject mat ter, the
R e g i o n a l Tri a l Cou rt , i f i t ha s j u r i s d i c t i o n
543
t h ereove r, shall try the cas e on the merit s as i f the

case wa s o ri gi n al ly filed wit h it. In case of reversal,
the cas e shall be re m an d e d for further p roceed in gs.
I f the cas e wa s t ried on the merit s by the lower
cou rt wi t h ou t j u ri sd i ct i on over the su bj ect matter,
the Regi on al Trial Cou rt on app eal shall not d i smi ss
the cas e i f i t ha s ori gi n al j u ri sd i ct i on thereof, but
s h a l l d e c i d e the cas e i n a c c o r d a n c e wi t h the
p r e c e d i n g s e c t i o n , w i t h o u t p r e j u d i c e t o the
a d m i s s i o n o f a m e n d e d p l e a d i n g s an d ad d i t i o n a l
evi d en c e in the i n t eres t of j u st i ce, (n)
NOTE
1. The first par agr aph was t aken from the former
Sec. 10 of Rule 40 , and the second p a r a g r a p h from
Sec. 11 thereof. However, a major change has been made
on the assumpt io n of original jur isdict ion over the case by
the Regional Trial Court.
The first p a r a g r a p h co nt e mp la t e s t he s it uat io n
wher ein the case was not tried on the mer it s but was
dismissed on a technical objection or quest ion of law, as
where t he case was dis missed for impr oper venue on
defendant ' s motion or for prescript ion. No trial having
been held, the Regional Trial Court on appea l merely
affirms or reverses the order of dismissal and, in case of
reversal, r emands the case to the lower court for further
proceedings.
However, where the quest ion of law involves lack of
jur isdict ion over the subject-matter and the Regional Trial
Court has jur isdict io n t hereover, it shall try the case on
the mer it s as if the case was originally filed with it. The
consent of the par t ie s to such assu mpt io n of origina l
jurisdict ion over the case is not required and this abandons
previous rulings which made it optional on the part of the
par t ie s on w het he r or not to submit to such original
jur isdict ion (see, for inst ance, Zulueta vs. Mariano, et al.,
544
RUL E 4 0 A P P E AL FRO M TH E M U N I C I P A L TRI AL C O U R T S SEC . 9 T
O TH E R E G I O N A L TRIAL C O U R T S
L- 0, Jan. 30, 1982; Alvir vs. Vera, et al, L-39338,

July 16, 1984).
The same procedure, whereby t he Regional Trial
Court assumes original jur isdict ion over the case wit hout
the need for consent t heret o by the part ies, is followed
where the case was tried on the mer it s by the lower court
alt hough it did not have jur isd ict ion over the subject-
mat t er. However, since t here was an actual trial of the
case on the mer it s, which normally entailed recept ion of
evidence on which the judgment of the lower court was
based, in the int erest of just ice, the part ies may be allowed
to file amended pleadings and adduce addit ional evidence
at the trial of the case in the Regional Trial Court.
Sec. 9. Applicability of Rule 41. — The o t h e r

p rovi si on s of Rule 41 shall apply to app eals p rovid ed
for h e rei n insofar as they are not i n c o n si st en t wit h
or may serve to su p p l e m en t the p rovi si on s of this
Rule, (n)
NOTES
1. For background mat er ials or referent ial bases

regarding appeals from the decisions of the inferior courts,
see Secs. 22, 38 and 39, B.P. Blg. 129 and Pars. 20, 21
and 22(b) of the I nt er i m or T r a ns it io na l Rules and
Guidelines, the appellat e procedure in the event of a
furt her appeal to the Int ermediat e Appellate Court being
as follows:
"22. Appellate procedure in the Intermediate
Appellate Court. —
X XX
(b) Review of appealed cases from Regional Trial

Courts. — In actions or proceedings originally filed
in the Met ropolit an Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts appealed
545
to the Regional Trial Courts, the final judgment s or

orders of the lat t er may be appealed by pet it ion for
review to the Int er mediat e Appellate Court which may
give due course only when the pet it ion shows prima
facie t hat the lower court has committed an error of
fact or law t hat will warr ant a reversal or modification
of the decision or final order sought to be reviewed.
The pet it ion for review shall be governed by the
Resolut ion of the Court of Appeals dated August 12,
1971, as modified in the ma nner indicat ed in the
preceding par agr aph hereof."
2. In Lacsamana, et al. vs. The Hon. Second Special

Cases Division of the IAC, et al. (G.R. Nos. 73146-53,
Aug. 26, 1986), the Supreme Court rest at ed and clarified
the modes and periods of appeal, as follows:
" 1) ORDINARY APPEALS BY MERE NOTICE OF
APPEAL.
I n a n o r d i n a r y a p p e a l from the fina l
judg ment or order of a met ropolit an or municipal
trial court to the regional t rial court, and from the
regio nal t r ial court to the Court of Appeals in
act io ns or pro ceed ings or iginally filed in the
r egio nal t r ia l court, the fifteen-day period for
appeal provided by Section 39 of BP No. 129 and
Section 19(a) of the I nt er im Rules is int errupt ed
or s u s p e n d e d by a mo t io n for ne w t r ia l or
reconsiderat ion, unless such motion fails to satisfy
the r equir ement s of Rule 37 (Section 3 of Rule
41). If the mot ion for new trial or reconsiderat ion
i s d e n i e d , the mo vin g p a r t y ha s only t he
r e ma in ing period from not ice of denia l wit hin
which to file a notice of appeal, which is the only
r e q u i r e m e n t for t ak in g an appea l UN DE R the
pr esent rules. Obviously, no extension of time to
file such a notice of appeal is needed, much less
allowed.
546
RUL E 4 0 A P P E AL FRO M TH E M U N I C I P A L TRI AL C O U R T S SEC . 9 T
2) APPEALS IN SPECIAL PROCEEDINGS AND

OTHER CASES WHE RE I N MULT IP LE
APPEALS ARE ALLOWED.
In an appe a l in a special pr o ceeding UNDE R
Rule 109 of the Rules of Court and in other cases
wherein multiple appeals are allowed, the period of
appeal is thirty days, a record on appeal being
required (Section 19[b] of the Int erim Rules). If a
motion for new trial or reconsiderat ion is filed and
denied, the remaining period wit hin which to file a
record on appeal may be too short and, hence a motion
for extension of time to file the record on appeal may
be granted, subject to the requir ement s summar ized
in the Resolution of May 30, 1986. As the court stated
in the case of Roque vs. Gunigundo, 'the t hirt y-day
period may be extended because, where the record is
vo lu m ino us or t he appella nt has ot her pr ess in g
mat t er s to at t end to, it may not be pract icable to
submit the record on appeal wit hin the reglement ar y
period' (89 SCRA 178, 183).
3) APPEALS BY PETITION FOR REVIEW TO
THE COURT OF APPEALS.
The final judgment or order of a regional trial
court in an appeal from the final judgment or order
of a metropolit an trial court, municipal trial court and
municipal circuit trial court, may be appealed to the
Court of Appeals t hro ug h a pet it io n for review
in accordance wit h Section 22 of BP No. 129 and
Section 22(b) of the Int erim Rules, or to this Court
t hr o u g h a pet it io n for review on c e r t io r a r i in
accordance with Rule 45 of the Rules of Court and
Sect ion 25 of the I nt er im Rules. The reaso n for
extending the period for the filing of a record on appeal
is also applicable to the filing of a petit ion for review
with the Court of Appeals. The period for filing a
petition for review is fifteen days. If a motion for
547
reconsiderat ion is filed wit h and denied by a regional

trial court, the movant has only the remaining period
wit hin which to file a pet it ion for review. Hence, it
may be necessary to file a motion with the Court of
Appeals for extension of time to file such petition for
review.
4) APPEALS FROM QUASI-JUDICIAL BODIES
TO THE COURT OF APPEALS.
In an appeal from quasi- judicial bodies to the
Court of Appeals under Republic Act No. 5434 and
Section 22(c) of the Int er im Rules, the appeal shall
be t aken by filing a notice of appeal with the Court of
Appeals and wit h t he quasi- jud ic ia l body within
fifteen days from notice of the ruling, award, decision
or judgment ; or in case a motion for reconsiderat ion
is filed wit hin said period, t hen within ten days from
notice of the resolution denying the motion for
reconsideration (Sect ions 2 and 3 of R.A. No. 5434).
No extension of time to file such a notice of appeal is
needed, much less allowed.
5) AP P E AL S BY CERTIORARI TO THE
SUPREME COURT.
In an appeal by cert iorari to this Court under
Rule 45 of the Rules of Court, Section 25 of the Interim
Rules and Section 7 of PD No. 1606, a part y may file
a pet it ion for review on cert iorari of the judgment of
a regio nal t r ial court, the I nt er med iat e Appellate
Court, or the S and iganba ya n within fifteen days from
notice of judgment or of the denial of his motion for
reconsiderat io n filed in due t ime, and paying at the
same t ime t he corresponding docket fee (Section 1 of
Rule 45). In other words, in the event a motion for
reconsideration is filed and denied, the period of
fifteen days begins to run again from notice of denial.
(See Codilla vs. Est enzo, 97 SCRA 351; Turingan vs.
Cacdac, 112 SCRA 634).
548
RUL E 4 0 A P P E A L FRO M TH E M U N I C I P A L TRI AL C O U R T S S EC . 9 T
A motion for extension of time to file a petition

for review on certiorari may be filed with the Supreme
Court within the reglementary period, paying at the
same time the corresponding docket fee.
Copies of the motion for extension of time and of
the subsequent petit ion for review on cert iorari must
be served on the lower court and on the adverse part y.
6) PERIOD OF EXTENSION OF TIME TO FILE
PETITION FOR REVIEW.
Beginning one month after the promulgation of
this Decision, an extension of only fifteen days for
filing a pet it ion for review may be grant ed by the
Court of Appeals, save in exceptionally mer itorious
cases.
The motion for extension of time must be filed
and the correspo nding docket fee paid wit hin the
reglement ar y period of appeal.
Copies of the motion for extension of time and of
the subsequent petition for review must be served on
the regional trial court and on the adverse part y."
3. However, t here have been subsequent changes
in the Rules which affected the procedure outlined in some
paragraphs of this resume. Thus, for a petit ion for review
of a judg ment or final order of the Regional Trial Court to
the Court of Appeals subject of P ar s. (3) and (5), see
Rule 42 and the notes t herein. With respect to Par. (4)
on appeals from quasi- judicial bodies to the Court of
Appeals, see Rule 43.
549
RULE 41
APPEAL FROM THE

REGIONAL TRIAL COURTS
S ect ion 1. Subject of appeal. — An ap p eal may be

t a k e n f ro m a j u d g m e n t o r fi n a l o r d e r t h at
co mp l et e l y d i sp o s e s of the case, or of a p arti cu lar
mat t e r t h e rei n wh e n d ecla re d by t h es e Rules to be
ap p e a l ab l e .
No ap p eal ma y be t ake n from:
(a) An ord e r d e n y i n g a p et i t i o n for reli ef or
an y s i m i l a r m o t i o n s e e k i n g re l i e f from
j u d g m en t ;
(b) An i n t e rl oc u t o r y order;
(c) A n ord e r d i s w a l l o w i n g o r d i s m i s s i n g a n
app eal ;
(d) An order d e n y i n g a mot i o n to set a side a
judgment by consent, confession or compromise
on the grou n d of fraud, mi st ak e or d u res s,
o r an y oth e r grou n d vi t i at i n g con sen t ;
(e) An orde r of e xe c u t i o n ;
(f) A j u d g m e n t or final o rd e r for or a gai n s t
on e or more of severa l p arti es or in sep arate
c l a i m s , c o u n t e r c l a i m s , c r o s s - c l a i m s an d
t h i rd - p art y co mp l ai n t s , wh i l e the main case
i s p e n d i n g u n l e s s the C o u rt a l l o w s a n
ap p eal t h eref rom; and
(g) A n o rd e r d i s m i s s i n g a n a c t i o n w i t h o u t
p rej udi ce.
I n an y o f the f o r e g o i n g c i r c u m s t a n c e s , the
aggri eved party may file an ap p rop ri at e special civil
acti on as p rovi d e d in Rule 66. (As amended in A.M.
No. 07-7-12-SC, effective Dec. 27, 2007)
550
RUL E 41 A P P E AL FRO M THE SE C . 1
R E G I O N A L TRI AL C O U R T S
NOTE S
1. This new provisio n in the Rules clarifies and

reit erat es the judgment or final order t hat may be appealed
from, and specifies the int erlocutory or other orders from
which no appeal can be t aken. In the lat ter inst ance, the
aggrieved part y may resort to a special civil act ion under
Rule 65, t hat is, a petit ion for certiorari or prohibit ion and,
in the case of an order disallowing or dismissing an appeal,
a pet it ion for manda mus.
Par. (g) refers to the several or separat e judgment s
provided for in Rule 36, and appeals t herefrom are not
absolutely prohibit ed but depend upon the circumst ances
of the case and the sound discret ion of the court.
2. An order is considered inter locutory if it does not
dispose of the case but leaves somet hing else to be done
by the trial court on the mer it s of the case. An order is
final, for purposes of appeal, if it disposes of the ent ire
case (see Note 1 under Sec. 1, Rule 39; Investments, Inc.
3. Where the order is int erlocutory, the movant has
to wait for the ju d g me n t and t he appea l from the
judgment , in the course of which appeal he can assign as
error the said interlocutory order. The interlocutory order
cannot be appealed from separat ely from the judgment
(Mapua vs. Suburban Theaters, Inc., 81 Phil. 311). The
general rule is t hat where the inter locutory order was
rendered wit hout or in excess of jurisdict ion or with grave
abuse of discretion, the remedy is cert iorari, prohibit ion
or mandamus depending on the facts of the case.
4. Where the order appealed from is int erlocutory,
the appellat e court can dismiss the appeal even if no
objection t hereto was filed by the appellee in eit her the
trial or appellate court (Sec. l[ij, Rule 50; Abesames vs.
Garcia, 98 Phil. 769).
551
RUL E 41 R E M E D I A L LAW C O M PEN DIU M SEC . 1
5. Where the defendant has been improperly declared

in default and has perfected his appeal from the judgment
by default, he can still avail of cert iorari to prevent the
carrying out of the writ of execut ion improperly issued by
the t r ial court (Omico Mining & Industrial Corp. vs.
Vallejos, etc., et al., L-38974, Mar. 25, 1975).
6. A major change has been int roduced in Par. (b) of

this sect ion which declares as non-appealable an order
denying a petit ion for relief from judgment . This changes
the rule in Sec. 2 of the former Rule 41 providing t hat a
"judgment denying relief UNDE R Rule 38 is subject to
appeal, and in the course thereof, a part y may also assail
the judgment on the mer it s."
I nt e r p r e t i n g t hat provis io n, t he S upr e me Court
explained t hat i t does not mean t hat in such appeal the
appellat e court may reverse or modify said judgment on
the mer it s since the judgment involved is already final
and executory. It pointed out t hat the purpose of t he Rule
is to enable the appellat e court to det ermine not only the
exist ence of any of the four grounds relied upon, but also
and primar ily the merit of the pet it io ner ' s cause of action
or defense, as t he case may be. If t he appellat e court
finds t hat one of the grounds exists and, what is of decisive
import ance, t hat the pet it ioner has eit her a good cause of
action or defense, it will reverse the denial or dismissal,
set aside the judgment in the main case and remand the
case to the lower court for a new trial in accordance with
the t hen Sec. 7 of Rule 38.
On the other hand, if the pet it ion for relief is against
an order disallowing an appea l for having been filed out
of t ime and the pet it ion is denied, in the appeal from such
denial or dismissal, the appellat e court mus t also be
apprised of the mer it of the case of the part y who assails
such denial or dismissal. If the appellat e court finds a
just ifiable ground and a mer it or ious case, it will reverse
the denial or dismissal and allow the appeal from the
552
RUL E 41 A P P E AL FRO M THE SEC . 2
decision in the main case (Servicewide Specialists, Inc.

vs. Sheriff of Manila, et al., G.R. No. 74586, Oct. 17, 1986).
Alt ho ugh the pr o cedur e ha s now been chang e d
because the aforestated put at ive errors of the lower court
can no longer be the subject of appeal but may be raised
for review by t he higher court under the appropr iat e
extraordinar y writ under Rule 65, virtually the same reliefs
suggested in the aforesaid case are substantially available.
In the first instance, the final or executory judgment of
the lower court shall not, of course, be reversed or modified
but if the requir ement s for relief therefrom are present ,
such judg me nt shall be set aside by t he higher court
handling t he cert iorari case, which shall t hen hear and
decide the same (instead of remanding it to the lower court)
as if a timely motion for new trial or reconsiderat ion had
been grant ed (Sec. 6, Rule 38).
In t he second inst ance, if the petit ion for relief which
was denied is against an order disallowing an appeal, while
the review thereof shall now be t hrough a petit ion for
m a n d a m u s , i n t hat spec ia l civil act io n the o r de r
disallowing the appeal can be reversed and the lower court
shall be required to give due course to the appeal (Sec. 7,
Rule 38).
Sec. 2. Modes of appeal. —

(a) Ordinary appeal. — The appeal to the Court
of Ap p eals in cases d eci d ed by the Regional Trial
Court in the exe rci s e of its ori gin al j u ri sd i ct i on
shall be t aken by filing a notice of ap peal with the
court wh ic h ren d e red the j u d gmen t or final order
app ealed from and se rvi n g a copy th ereof upon the
adverse party. No record on appeal shall be required
exc ep t in sp eci al p roce ed i n g s and other case s of
mu ltip le or sep arat e app eals where the law or t hese
Ru les so req u i re. In suc h cases , the record on
appeal shall be filed and served in like manner.
553
(b) Petition for review. — The ap p eal to the Court

of Ap p eal s in case s d eci d e d by the Regi on al Trial
Court in the exerci s e of its ap p e l lat e ju ri sd icti on
shall be by p et i t i o n for revi e w in acc o rd an c e with
Rule 42.
(c) Appeal by certiorari. — In all case s wh er e only
q u e s t i on s of law are rai sed or i n volved , the appeal
shall be to the S u p re m e Court by p et it i on for review on
ce rt i ora ri in acco rd an c e wit h Rule 45. (n)
NOTES
1. This new section provides for the different modes

of appeal from judg ment s or final orders of the Regional
Trial Court to the Court of Appeals or the S upreme Court.
The first mode is the or dinar y appeal, somet imes
r eferr ed to as an appea l by wr i t of erro r due to the
r equir eme nt t hat the brief filed for t hat purpose must
contain an ass ignme nt of errors. This presupposes t hat
the Regional Trial Court rendered the judgment or final
order in the civil action or special proceeding in the exercise
of its original jur isdict io n and the appeal is t aken to the
Court of Appeals on quest ions of fact or mixed quest ions
of fact and law. The appeal is t aken by notice of appeal
or by record on appea l . This is the mode of appeal
governed by Rule 41 .
The second mode of appeal has to be observed where
the quest ioned judgme nt or final order was render ed by
the Regional Trial Court in the exercise of its appellate
jur isdict io n over a judgme nt or final order in a civil action
or special proceeding originally commenced in and decided
by a lower court. The appeal is t aken by a pet it ion for
review filed wit h the Court of Appeals on quest ions of fact,
of law, or on mixed quest io ns of fact and law, and is
governed by Rule 42.
554
RUL E 41 A P P E AL FRO M THE SE C . 2
The t hird mode is appeal by cert iorari t aken to the

Supreme Court only on quest ions of law from a judg ment
or final order rendered in a civil action or special proceeding
by the Regional Tr ial Court in the exercise of its original
jurisdict ion. The appeal is t aken by filing a petit ion for
review on cert iorari with the Supreme Court subject to
the provisions of Rule 45.
2. Alt hough the t er m used in the second mode is
"petit ion for review" just like t hat in appeals from t he quasi-
judicial agencies under Rule 43, it should not be confused
with the "petit ion for review on certiorari" under the third
mode which is a dist inct procedure under Rule
45. Nor should the use of the word "certiorari" in the latt er
be mist aken for the special civil action for cert iorari in
Rule 65 which is not a mode of appeal but an original
action.
3. It bears reit erat ing t hat what are provided for in
Sec. 2 are modes of appeal, and although the word "review"
is used in the second and third modes, they are strictly in
the nat ure of appellat e proceedings regulat ed by t heir
respective Rules.
This caveat is worth stressing since in American law,
there is a fundament al difference between an "appeal" and
an action to "review." It is held there t hat in the case of
appeal, the t ribunal by which the first deter minat io n was
made is not a party to the proceeding for review, while in
an act io n t o r eview, the t r i bu na l which mad e the
det er minat io n is a part y to the proceeding for review
(Milwaukee County vs. Industrial Commission, 238 Wis.
94, 279 N. W. 655). On t hat aspect regarding the posit ion
of the lower tribunal, and with the amendment of Rule
45, the aforesaid dist inction regarding an appeal and a
review would now apply to the rules on appeal in t hese
revised Rules, with the mat t er of an action for review
being consonant with the provisions of and the practice
involving Rules 64 and 65.
556
Sec. 3. Period of ordinary appeal; appeal in habeas

corpus cases. — The ap p eal shal l be take n wi t h i n
(15 ) d ay s fro m n o t i c e o f the j u d g m e n t o r final
order ap p ea le d from. Where a record on app eal is
req u i red, the ap p e l l an t shall file a n ot ice of appeal
and a record on ap peal wit h i n thirty (30) day s from
n ot ice of the j u d gme n t or final ord er. H owever , an
app eal in habeas corpus case s shall be t ake n within
fort y -eight (48) h ou r s from n ot i ce of j u d g men t or
final ord er ap p eale d from.
The p eri o d of ap p eal shall be i n t e rru p t e d by
a t i mel y mot i o n for ne w trial or re c o n s i d e ra t i o n .
No mot i o n for e xt e n s i o n of time to file a mot i o n for
ne w t ri al o r r e c o n s i d e r a t i o n sh a l l b e a l l o w e d .
(n) (As amended in A.M. No. 01-103-SC, effective
July 15, 2001)
NOTES
1. The prohibit ion in the second par agr aph of this

section against the filing of a motion for ext ension of time
to file a motion for new trial or reconsid erat ion is taken
from the rules first laid down in Habaluyas Enterprises,
et al. vs. IAC, et al. (G.R. No. 70895, May 30, 1986) and
lat er reit erat ed by the S upr eme Court in its resolut ion of
April 7, 1988. See Note 5 under Sec. 8, Rule 37.
2. The r egleme nt ar y period for appeal is reckoned

from notice of the judgme nt or order, or any subsequent
ame nd ment thereof (Capistrano vs. Corina, et al., 93 Phil.
710). The period to appeal may be ext ended (Bueva vs.
Surtida, et al., L-23617, Aug. 26, 1967), but such extension
is addressed to the sound discret ion of the court (Socco vs.
Garcia, L-18321, Oct. 31, 1962) and the mere filing and
pendency of the motion for ext ension of time to perfect
the a p p e a l does no t s u s p e n d the r u n n i n g o f t he
r e g l e m e n t a r y per io d (Bello, et al. vs. Fernandez, L-
16970, Jan. 30, 1962).
556
3. A motion to extend the period for filing the record

on appeal must be filed wit hin the 30-day reglement ar y
period for perfect ing the appeal. It should be heard and
resolved prompt ly, or before the lapse of said period, so as
to apprise the appellant whet her or not his obligat ion to
file the record on appeal within the said period is dispensed
with (Semira us. Enriquez, 88 Phil. 288). The part ies or
their attorneys should be immediat ely notified of the order
issued on the mat t er so t hat they may avail t hemselves of
the proper remedy if it is denied. In case it is grant ed
and the court fails to st at e when the extension should
commence to run, it should be joined to the original period
or t hat fixed by law and must be computed from the date
following the expirat ion thereof. If the order grant ing
the extension is issued and notice thereof served after the
expirat ion of the period fixed by law, the extension must
be computed from the date of notice of the order grant ing
it (Alejandro us. Endencia, 64 Phil. 321).
The filing of such motion, however, does not suspend
the running of the period for perfecting the appeal (Escolin
us. Garduho, 57 Phil. 294; Garcia us. Buenauentura,
74 Phil. 611; King us. Joe, et al., L-23617, Aug. 26, 1967),
and the appellant has the duty to ascertain the st at us of
his motion, for if no action is t aken thereon or it is denied
after the lapse of the period, the right to appeal is lost
(Cumplido us. Mendoza, et al, L-20265, June 30, 1964).
When an appellant asks the court to extend the period for
perfect ing his appeal and he himself fixes the extension
period in his motion, the motion is deemed denied if no
action is t aken thereon and the period thereafter lapses
(Reyes, et al. vs. Sta. Maria, et al, L-29554, Nou. 20, 1972;
cf. Berkenkotter us. CA, et al, L-36629, Sept. 28, 1973).
4. Even if the appeal was filed out of time, the court

still has jur isdict ion to admit and give due course to it,
provided there are justifiable reasons therefor (Reyes us.
CA, et al, 74 Phil. 235). The trend of the rulings of the
Supreme Court in matt ers pert aining to the timeliness of
567
the perfection of an appeal is to afford the lit igant the

amplest opport unit y to present his case freed from the
const raint s of t echnicalit ies (Rodriguez, et al. vs. CA, et
al., L-37522, Nov. 28, 1975). Thus, the filing of an appeal
beyond the r egle me nt ar y period has been allowed in some
cases, in the exercise of the equity jurisdict ion of the courts,
where a st ringent applicat ion of the rule would not serve
the demands of subst ant ial justice. The rules of procedure
are not to be applied in a very rigid or technical sense
since t hey are designed to help secure just ice, not to
override the same (Velasco, et al. vs. Gayapa, et al., G.R.
No. 58651, July 30, 1987).
5. In Neypes, et al. vs. CA, et al. (G.R. 141524,

Sept. 14, 2005), the Supreme Court announced its adoption
of the so-called "fresh period rule" wit h t he avowed intent
to st andardize the appeal periods provided in the Rules
and to afford lit igant s fair opportunit y to appeal their cases
t hrough t his ext ension of time, grant ed on just ifiable and
compelling reasons.
The essence of t his new rule is the liberal grant of a

fresh period of 15 days wit hin which the aggrieved part y
in the case may file a notice of appeal in the Regional
Trial Court, counted from receipt of the order dismissing a
motion for new trial or reconsiderat ion. While seemingly
involving a slight depart ur e from t he provisio ns of the
pr ese nt Sec. 3 of Rule 41 , the effect thereof is in fact
co mplement ar y to the same but may just ifiably be invoked
only in the int er est of subst ant ia l just ice.
To st andar dize the different appeal periods in the

Rules, this "fresh period rule: was made applicable to Rule
40 governing appeals from t he Municipal Trial Courts to
the Regional Trial Court; Rule 42 on pet itions for review
from the Regional Trial Court s to the Court of Appeals;
Rule 43 on appeals from quasi- judicial agencies (now,
except the Court of Tax Appeals) to the Court of Appeals;
and Rule 45 governing appeals by cert iorari to the Supreme
558
RUL E 41 AP P E AL FRO M THE SEC . 3
Court. This new rule thereby makes the appeal period

uniform by being invariably counted from receipt in the
case t herein of the order denying the motion for new trial,
motion for reconsideration or any final order or resolution.
The Court t hus recapit ulat ed that, in the foregoing
sit uat ions, a part y lit igant may eit her file his notice of
appeal wit hin 15 days from receipt of the Regional Trial
Court's decision, or within 15 days from receipt of the order
de n yi n g his mo t io n for new t r ia l or mot io n for
reconsiderat ion which t hereby assumes the role of the
"final order." Having filed their appeal 5 days from receipt
of said order, the appeal of pet it ioners in said case was
within the "fresh" appeal period.
The same rule was followed in Spouses De los Santos

vs. Vda de Mangubat (G.R. No. 149508, Oct. 19, 2007)
where the Court reit erated the foregoing rat ionale and
procedure to give due course to the notice of appeal filed
by the pet it io ner s wit hin the fresh period of 15 days
granted t herein. Although admittedly there were exist ing
procedural rules which could have barred the outright
application of the Neypes case, the Court explained t hat
such p r o c e d u r a l o bject io ns may be su s p e nd e d or
disregarded to promote the ends of justice; and t hat said
adjective provisions were not insuperable but admitted of
except ions to give way to the new rule in Neypes.
It accordingly opted to set aside what it considered
undue technicalit ies which would frustrate rat her t han
promote the ends of justice. Parent het ically, while the
Court stated in this later case t hat it had "amended the
Rules of Court on the appeal period in Neypes," it could
not have been referring to an unpublished amendment of
the wordings of the Rules of Court itself, but to an
amendment of the doctrinal precept thereof, t hat is, not
the codal text but the jur ispr udent ia l precedent , (cf.
Makati Irs. Co Inc. vs. Reyes etc. et al., G.R. No. 167903,
Aug. 6, 2008).
559
6. . Where the trial court dismissed the

complaint, t hen set aside such dismissal order, but on
motion for r eco nsider at io n by the defe ndant i t again
ordered the dismissal of the complaint , the period to
appeal is reckoned from receipt of the second order of
dismissal (Lucas, et al. vs. Mariano, et al., L-29157, April
27, 1972).
7. Where the trial court set aside an order dismissing

the co mplaint and gr a nt ed a new t r ial but t hereaft er
e nt e r e d a no t he r or de r of d is m i s s a l , the per iod for
perfect ing an appeal runs from the date of the second order
of dismissal (Vda. de Haberer vs. Martinez, et al., L-39386,
Jan. 29, 1975).
8. The approval by the t rial court of the record on

appeal even if the period for the appeal has expired, is
t ant amo unt to a valid order grant ing the extension prayed
for by a p p e l l a n t i f an y suc h mot io n ha s been filed
(Berkenkotter vs. CA, et al., supra). Conversely, the
dismissal of the appeal by the trial court const it ut es a
denial of t he ext ension prayed for, in which case the only
quest ion t hat can arise is whet her or not the t rial court
ha d gr a ve l y a bu se d it s d is c r e t io n i n de nyi n g such
ext ensio n (PVTA vs. De los Angeles, et al., L-29736,
Oct. 31, 1974).
9. Where t he motion to set aside t he judgment is filed

on the last day of the period to appeal, t hat day should be
excluded. Hence, when the order denying the motion is
received, appellant still has one day to perfect his appeal.
This one-day per iod should be computed in accordance
wit h Rule 28 by excluding t he day of receipt and including
the next day (Mara, Inc. vs. CA, et al, L-26584, July 31,
1969).
10. As a rule, it is the appellat e court which will

det er mine whet her the appeal is pro forma, frivolous or
dilatory and t hereaft er dismiss the appeal, as the trial court
has the minist er ia l dut y to elevate the records if the appeal
560
RUL E 41 AP P E AL FRO M TH E S E C S . 4- 5
is duly perfected. However, if the trial court dismissed

the appeal because it was clearly de monst r at ed to be
dilatory and frivolous, such order will not be disturbed by
the appellate court (De la Cruz, et al. vs. Blanco, et al.,
73 Phil. 596). Mandamus will not lie to compel t he Court
of First Instance to give due course to the appeal under
said circumst ances (Manila Railroad Co. vs. Ballesteros, L-
19161, April 29, 1966).
11. . For appeals from decisions of the Regional Trial

Courts under B.P. Blg. 129, see Secs. 9, 22 and 39 thereof.
Sec. 4. Appellate court docket and other lawful fees.

— Wi t h i n the p eri o d for t a k i n g an ap p e a l , the
ap p el lan t shall pay to the clerk of the court wh i c h
ren d ered the j u d gmen t or final order ap p ealed from,
the full amou n t of the ap p ellate court d ocket and
oth er lawfu l fees. Proof of p aymen t of said fees
shall be t ran smi t t ed to the ap p ellat e court t ogeth er
with the ori gin al record or the record on appeal,
(n)
Sec. 5. Notice of appeal. — The notice of appeal

shall i n di cat e the parties to the appeal, specify the
j u d gmen t or final order or part t hereof ap p ealed
from, specify the court to whi ch the appeal i s being
t aken , and state the mat eri al d at es sh owi n g the
t i meli n e ss of the appeal. (4a)
NOTES
1. Even if no notice of appeal was filed, such defect

may be disregarded if there was a record on appeal duly
filed, as the same is equivalent to a notice of appeal (Calo,
et al. vs. CFI of Agusan, 98 Phil. 420; see Phil. Resources
Dev. Corp. vs. NAW ASA, L-12803, Feb. 27, 1962). Hence,
the failure to serve a copy of the notice of appeal to the
adverse part y who was, however, served with a copy of
561
the record on appeal wher ein such notice of appeal is

embodied, does not impair the right of appeal (Director of
Lands, et al. vs. Reyes, et al., L-27594, Nov. 28, 1975).
2. Under the I nt er im Rules, as hereinbefore stated,

appeal bonds are no longer required (Par. 18) and records
on appeal are required only in cert ain cases hereinafter
discussed (Par. 19fbJ; Sec. 39, B.P. Blg. 129), the general
rule now being t hat only a notice of appeal is required to
perfect an appeal.
Sec. 6. Record on appeal; form and contents thereof.

— The fu l l n a m e s o f al l the p a r t i e s t o the
p ro c e e d i n g s shal l be st at e d in the cap t i o n of the
record on ap p eal an d i t shall i n clu d e the j u d gmen t
or final ord er from wh i c h the ap p eal i s t ake n and, i
n c h r o n o l o g i c a l o r d e r , c o p i e s o f on l y su c h
p l e a d i n g s , p et i t i on s , mot i on s an d all i n t e rlo cu t ory
ord e r s a s are re lat e d t o the ap p ea l e d j u d gm en t o r
final ord er for the p rop er u n d e rs t a n d i n g of the issue
i n vo l v ed , t oge t h e r wit h suc h dat a a s will sho w that
the ap p eal wa s p e rf ect e d on t i me. I f an i ssu e of fact
i s to be rai se d on app eal , the record on app eal s h a l l
i n c l u d e b y r e f e r e n c e al l the e v i d e n c e , t e s t i m o n i a l
an d d o cu m e n t a ry , t ake n upo n the issue i n v o l v e d .
The r e f e r e n c e s h a l l s p e c i f y the d o c u m e n t a r y
e v i d e n c e by the exh i b i t nu mb er s or let t ers by wh i c h i
t wa s i d en t i fi ed wh e n ad mi t t e d or offered a t the
h eari n g , an d the t est i mon i a l evi d en c e by the n ame s
of the c o r r e s p o n d i n g w i t n e s s e s . I f the wh ol e
t e s t i m o n i a l and d o c u m e n t a r y evi d en c e in the cas e i
s to be i n clu d ed , a s t a t e m e n t to that effe c t wil l b e
s u f f i c i e n t w i t h o u t m e n t i o n i n g the n ame s of the
w i t n e s s e s or the n u mb e r s or let t e rs of exh i b i t s .
Every record o n app eal e xc e e d i n g t wen t y
(20) p age s mus t con t ai n a sub ject index. (6a)
562
RUL E 41 AP P E AL FRO M THE SE C . 6
NOTES
1. The requirement t hat the record on appeal must

show on its face t hat the appeal was perfected on time is
mandatory and jur isdict ional and, if not complied wit h,
the appellate court acquires no jur isdict ion and the appeal
must be dismissed (Araneta vs. Madrigal & Co., Inc., L-26227-
28, Oct. 25, 1966; DBP vs. Santos, L-26387,
Sept. 27, 1966; Sec. lfaj, Rule 50).
2. Where, however, the motion to dismiss the appeal

on this ground was filed more t han 6 years after the filing
of appellee's brief, wit hout justificat ion for such delay, t he
motion was properly denied (Sarmiento vs. Salud, et al.,
[Resolution on Motion for Reconsideration], L-25221,
Aug. 18, 1972).
3. The date when the original t ypewr it t en record on

appeal was filed in the trial court appears on the date of
the receipt thereof as stamped thereon upon its receipt.
Hence, the filing of the original t ypewr itt en record on
appeal in the lower court, being a posterior act to its
preparat io n, the date of the filing thereof is not required
to be st ated t herein and, consequent ly, will not appear in
the printed record on appeal filed in the appellat e court.
The only exception wherein the date of filing in the trial
court of the original record on appeal is required to be
stated t herein is when an amended record on appeal is
subsequent ly permitted to be filed, for then the date of
the filing of the original record on appeal wit hin the
reglement ary period will show whet her the appeal was
seasonably perfected (Valera vs. CA, et al., L-29416,
Jan. 28, 1971).
4. Sec. 6, Rule 41 obviously refers to the record on
appeal filed with the trial court, not to the print ed record
on appeal filed in the appellat e court. At any rate, the
appellate court is in a posit ion to determine the date
aforement io ned, by examining the original record on
563
appeal t hereto forwarded and, hence, forming part of its

own record (Reyes vs. Carrasco, L-28783, Mar. 31, 1971;
Sison vs. Gatchalian, et al., L-34709, June 15, 1972).
5. It is the t rial court's dut y to det ermine whet her
or not the appeal has been actually perfected on time
and to allow the a me nd ment of the record on appeal in
orde r t o inc lude t he r e i n any r e le va n t o mit t e d dat a
(Design Masters, Inc. vs. CA, et al., L-31510, Mar. 31,
1971; Ozaeta, Jr., et al. vs. CA, et al., L-26938, Oct. 29,
1971). If the pr int ed record on appeal does not show the
dat e of filing t hereof which is st amped on the original
record on appeal, the appellat e court may ascertain such
dat e by e xa m in ing t he origina l record on appeal and
det er mine w het her or not the said record on appeal meets
the objective of Sec. 6, Rule 41 , and which may be deemed
to have been su bst ant ia lly complied wit h (Mintu vs. CA,
et al., L-36854, Sept. 19, 1973; Villarica vs. CA, et al., L-
28363, May 15, 1974).
6. Formerly, where the pr int ed record on appeal did

not cont ain any a ver me nt t hat the appellant s had filed
the appeal bond wit hin t he r egle ment ar y period but the
fact of t he t imely filing of such appeal bond was duly
shown on t he face of t he original notice of appeal filed
wit h the o r ig ina l record on appeal on file wit h the
appellat e court, t here was subst ant ial compliance with the
provisions of Sec. 6, Rule 41 and the appeal should not be
dismissed (Alfonso vs. CA, et al., L-37068, July 18, 1974).
This rule of subst ant ia l compliance was also applied to
the case of Ever Ice Drop Factory vs. CA, €t al. (L-33366,
Oct. 30, 1972), wherein the print ed record on appeal did
not inc lude appe l la nt ' s not ice of appeal to show the
t imeliness thereof (and, formerly, the official payment of
the appeal bond), but the original copy of said notice of
appeal (and the official receipt of payme nt of the appeal
bond, which was at t ached to said notice of appeal) was
found in the original record on appeal on file with the
appellat e court.
564
RULE 41 AP P E AL FRO M THE SEC . 7
7. Failure of counsel to sign the record on appeal is

not a ground for dismissal of the appeal. The same could
merely be required to be signed by him (Toribio, et al. vs.
Montejo, et al., L-28453, Mar. 21, 1975). The same is
true where the record on appeal consisting of more t han
20 pages does not have the requisit e subject index and
does not contain the full names of the parties in the caption
as t hes e ar e pur el y m a t t er s of form co rr ect ible by
amendment which the trial court may order to be done
(Abuso vs. Acosta, G.R. No. 54343, Sept. 25, 1980). See,
however, Sec. 3, Rule 7 on unsigned pleadings.
8. The "mat er ial dat a rule" enunciat ed in Sec. 6,

Rule 41 need not be observed if the trial court issued
an order to the effect t hat the appeal was seasonably
perfected with the filing of the notice of appeal, and the
record on appeal (and, formerly, the appeal bond) within
the reglement ar y period (Pimentel, et al. vs. CA, et al., L-
39684, June 27, 1975).
9. The mat erial data rule has been liberalized in the

sense t hat reliance can be placed on the trial court's order
of approval and its determinat ion of the timeliness of the
appeal, especially when the timeliness of perfection of such
appeal has not been impugned by the appellee who filed
no opposition to the approval by the trial court of the record
on appeal (Saura Import & Export Co., Inc. vs. CA, et al., L-
34770, May 18, 1978; Abando vs. CA, et al., L-37697,
May 31, 1978). The trial court's approval of the record
on appeal serves to cure whatever defect or omission may
have been committed t herein (Compagne des Messageries
vs. CA, et al., L-28381, Sept. 11, 1980).
Sec. 7. Approval of record on appeal. — Upon the

filing of the record on appeal for approval and if no
objection is filed by the appellee within five (5) days
from recei pt of a copy thereof, the trial court may
approve i t as p resent ed or upon its own motion or
565
a t the i n s t a n c e o f the a p p e l l e e , ma y d i re c t its

a m e n d m e n t by the i n clu s i o n of an y omi t t ed matt ers
wh ic h are d eem e d ess en t i a l to the d ete rm i n at i o n of
the i ssu e of law or fact i n volved in the ap p eal. If
the trial cou rt ord ers the a m e n d m e n t of the record,
the ap p ellan t , wi th i n the time li mi t ed in the order, or
suc h e xt e n s i o n t h ereo f as ma y be gran t ed , or i f no
time i s fixed by the ord er wit h i n te n (10) days from
re ce i p t t h ereof, shal l red raft the record by i n c l u d i n g
t h e re i n , i n t h ei r p rop e r c h ro n o l o g i c a l s e q u en c e , suc
h ad d i t i on a l mat t e r s a s the cou rt may h a v e d i r e c t e d
h i m t o i n c o r p o r a t e , an d sh a l l t h e r e u p o n sub mit
the red rafted record for approval, upo n n ot i c e to the
ap p e l l e e , in like man n e r as the o ri gi n a l draft. (7a)
Sec. 8. Joint record on appeal. — Wh er e bot h

p art i es are a p p e l l an t s , the y ma y file a join t record
on ap p eal wi t hi n the tim e fixed by sect i o n 3 of this
Rule, or that fixed by the court. (8a)
NO TES
1. A record on appeal does not have to be set for

hear ing in the t rial court by t he appellant , as it is deemed
submit t ed for approval upon its filing and the rule merely
requir es the adver se part y to file any objection t hereto
wit hin 5 days (Olvido vs. Ferraris, 90 Phil. 555; Toribio,
et al. vs. Montejo, etc., et al., L-28453, Mar. 21, 1975).
Consequent ly, non-appearance of counsel for the appellant
at the hear ing for the approval of the record on appeal
does not war r an t dismissal of the appeal (Heirs of Manuel
Olango vs. CFIof Misamis Oriental, et al, G.R. No. 55864,
April 12, 1982).
2. The court has jur isdict io n to ext end the period

for the filing of a record on appeal (Moya vs. Barton,
76 Phil 831).
566
3. A record on appeal filed on time, t hough unsigned

through inadvertence, may be given force and effect where
no impair ment of the rights of the adverse part y can be
shown (Toribio, et al. vs. Montejo, etc., et al., supra).
Sec. 9. Perfection of appeal; effect thereof. — A

p a rt y' s a p p e a l b y n o t i c e o f a p p e a l i s d e e m e d
p erfect ed as to hi m upon the filing of the not i ce of
appeal in due time.
A party' s appeal by record on appeal is d eeme d
p erfect ed a s t o hi m wit h resp ec t t o the su b j ect-
matter t h e reof upo n the approval of the record on
appeal filed in due time.
In ap p eals by notice of appeal, the court loses
j u ri sd i cti on over the case upon the perfection of the
app eals filed in due time and the exp i rat ion of the
time to appeal of the other parties.
In ap p eals by record on appeal, the court loses
j u ri sd i ct i on only over the su b j ect- mat t er t h ereo f
upon the app roval of the record on appeal filed in
due time and the exp i rati on of the time to appeal
of the other part i es.
In either case, prior to the t ransmitt al of the
original record or the record on appeal, the court
may issue orders for the protection and p reservati on
of the rights of the p art ies wh i ch do not in volve
any matter litigated by the appeal, ap p rove com•
promi ses, permit appeals of indigent li tigants, order
e x e c u t i o n p e n d i n g ap p ea l i n a c c o r d a n c e wit h
secti on 2 of Rule 39, and allow wi t hdrawal of the
appeal. (9a)
NOTES
1. Under the former procedure as provided in then

Sec. 3, Rule 41, except in specified special cases, a regular
567
RUL E 41 REMEDIA L LA W COMPENDIU M SEC. 9
appeal was t aken by t he filing of a notice of appeal, an

appeal bond, and a record on appeal. Also, under the
former Sec. 9 of this Rule, the appeal was deemed perfected
upon the approval of the record on appeal and the appeal
bond other t han a cash bond.
Sec. 39 of B.P. Blg. 129 changed t he requisit es for
t aking t hat appeal by providing t hat no record on appeal
shall be required, except in appeals in special proceedings
and in other cases wherein mult iple appeals are allowed.
Par. 18 of the I nt er im Rules furt her eliminat ed the need
for an appeal bond and reit erat ed the rule t hat a record
on appeal shall be dispensed wit h, except in appeals in
special proceedings as provided in Rule 109 and in other
cases w her e in mult ip le appeals are allowed. Regular
appeals under this Rule are, t herefore, now t aken by record
on appeal which requires approval by the court or by notice
of appeal which does not need such approval, it being
understood t hat both should be seasonably filed.
The I nt er i m Rules, however, merely provided as
follows:
"23 . Perfection of appeal. — In cases where
appeal is t aken, the perfect ion of the appeal shall be
upon t he expirat ion of the last day to appeal by any
part y.
In cases where a record on appeal is required

the appeal is perfected upon approval thereof by the
court which should be done wit hin ten (10) days."
T her e was, co nsequent ly, a need for clarifying in
e it he r mode of appea l whe n such ap pea l i s deemed
perfected, the effect of such perfect ion upon the part ies,
when the trial court loses jurisdiction, and over what aspect
of the case or proceeding such jur isdict ion is lost.
2. Under this amended and expanded section, in an

appeal by notice of appeal, a part y' s appeal is deemed
perfected as to him upon the filing of his appeal in due
568
time. While he can wit hdraw such appeal, he cannot do

so in order to revive the jurisdict ion of t he trial court and
enable him to take anot her course of action calling for the
exercise of t hat jurisdict ion, such as the filing of a motion
for new trial or reconsiderat ion. This is so because by
filing his notice of appeal, insofar as he is concerned he
has perfected his appeal to the appellat e court and it is in
t hat court where he can pursue any furt her remedy.
This rule, it should be noted, applies individually and
only to each of the part ies so circumst anced since the
timeliness of their recourse to appellat e remedy depends
on when they respect ively received a copy of the judgment
or final order. In the meant ime, the trial court still ret ains
jurisdict ion over the case. However, where all the part ies
have eit her t hus perfected their appeals by filing t heir
notices of appeal in due time and the period to file such
notice of appeal has lapsed for those who did not do so,
then the trial court loses jurisdict ion over the case as of
the last notice of appeal or the expirat ion of the period to
do so for all the part ies.
Virtually the same rules apply in appeals by record
on appeal, except t hat a part y's appeal is deemed perfected
as to him upon the approval of his record on appeal
seasonably filed, but only wit h respect to the subject-
mat t e r thereof. Where all the par t ie s have e it her
perfected t heir appeals in such manner or the period
therefor has expired for those who did not do so, then the
trial court loses jurisdict ion over the subject-matter of their
appeals upon the approval of their records on appeal and
the expirat ion of the period to do so of the other part ies.
In this mode of appeal, the trial court loses jurisdiction
only over the subject-matter of the respective appeals of
the parties, but retains jurisdiction over the case or special
proceeding from which such appeals were taken. This is
because this mode of appeal is involved and proper in
special proceedings wherein the possibilit y of several
appeals is cont emplat ed, specifically from the various
569
o r der s e n u m e r a t e d in Rule 109 which are declared

appealable, and in civil act ions where several appeals may
likewise be t aken from cert ain aspects thereof. The lower
court ret ains jur isdict ion over the special proceeding or
civil action, and since the original record remains wit h it
for purposes of furt her remedies which the part ies may
avail of, a record on appeal has to be filed by any appellant.
The same pro cedur e is followed, UNDER the same
rat ionale, in civil cases which admit of mult iple appeals.
For inst ance, a judgment in an act ion for recovery or for
part it io n of propert y is separat ely appealable from the
p r o c e e d i ng s o n t hat par t o f t he j u d g m e n t w her e i n
account ing for receipt s from the propert y is ordered as a
pr imar y or incident al relief. When such account ing is
t hereaft er submit t ed and eit her approved or rejected by
the t rial court, anot her appeal lies t herefrom.
Special civil act ions, because of the nat ur e of the
pr o ce ed i ng s t he r e i n , pro vide fu r t he r e xa mp l e s . I n
expropr iat io n (Rule 67), an order det ermining the right
of the p la int i f f t o e xp r o p r i a t e an d the s u b s e q u e n t
adjudicat ion on the issue of just compensat io n may be the
subject of separ at e appeals. In judicial foreclosure of
mort gage (Rule 68), the judg ment in the main case on the
right to foreclose, the order confirming the foreclosure
sale, and t he deficiency judgment against a t hir d-part y
mort gagor may be the subject of separ at e appeals. In
judicial part it ion (Rule 69), an order directing t he part it ion
of the land over the objection of a part y who claims total
ownership t hereof is appealable, and ano t her appeal may
be t aken from the judgme nt rendered on the project or
schedule of par t it io n su bmit t ed by the co mmiss io ner s
appoint ed by the court for t hat purpose.
3. After the perfect ion of the appeal by eit her mode,

the trial court loses jurisdict ion over the case or the subject-
mat t er involved in t he appeal, as t he case may be. In
eit her instance, and before the t ransmit t al to the appellat e
570
court of the original record or the record on appeal, t he

trial court still ret ains its so-called residual jurisdict ion to
issue protect ive orders, approve compromises, per mit
appeals of indigent lit igant s and, as has been added by
amendment of this section, to order discretionary execution
and to allow wit hdrawal of the appeal.
4. That addit ional power of the trial court to order
discretionary execution under this amended section should,
however, be correlated with the provisions of Sec. 2, Rule
39 which provides t hat it may do so "(o)n motion of the
prevailing part y with notice to the adverse party filed in
the trial court while it has jurisdict ion over the case and is
in possession of eit her the original record or the record on
appeal x x x at the time of the filing of such motion." It
fur t her pro vides t hat aft er t he t rial court ha s lost
jurisdict ion, the motion for execution pending appeal may
be filed in the appellat e court.
This is of part icular significance in appeals by notice
of appeal wherein after the appeal has been perfected,
the original record is t ransmit t ed to the appellate court
since the trial court loses jur isdict ion over the case. In
appeals by record on appeal, however, this section may
still have qualified applicabilit y since after perfection of
the appeal, the trial court loses jurisdiction only over the
subject-matter of t hat appeal but retains jurisdict ion over
the special proceeding or civil action and the original
records thereof.
5. It has formerly been held t hat even if the appeal
has already been perfected but the records have not
yet been t ransmit t ed to the appellate court, the trial court
still has jurisdict ion to set aside its order approving the
record on appeal (Cabungcal vs. Fernandez, L-16520,
April 20, 1964). Also, the rule is t hat an interlocutory
order remains under the control of the court and can be
modified or rescinded before ent ry of final judgment
571
RUL E 4 1 R E M E D I A L LAW C O M P E N D I U M SE C S . 10-11
(Larrobis us. Wislezemers, 42 Phil. 401). It is believed

t hat these doctrines still apply.
Sec. 10. Duty of clerk of court of the lower court upon

perfection of appeal. — With in th i rty (30) days after
p erfect i on of all the ap p eal s in acco rd an c e wit h the
p re c e d i n g sect i on, i t shall be the duty of the clerk
of cou rt of the lowe r cou rt:
(a) To veri fy the c o r re c t n e s s of the origin al
record or the record on ap p eal, as the case may be,
and to mak e a cert i fi cat i on of its corre ct n ess;
(b) To veri fy the c o m p l e t e n e s s of the record s
that will be t ran s m i t t e d to the ap p ell at e court;
(c) I f fou n d to be i n c o m p l e t e , to tak e suc h
m e a s u r e s a s ma y b e r e q u i r e d t o c o m p l e t e the
re co rd s , a v a i l i n g o f the a u t h o ri t y that h e o r the
cou rt ma y exerci s e for thi s p u rp ose; and
(d) To t ra n s m i t the reco rd s to the ap pel lat e
cou rt .
I f the efforts to comp let e the reco rd s fail, he shall
i n d i cat e in his letter of t ran smi ttal the exh i b it s o r
t r a n s c ri p t s no t i n c l u d e d i n the reco rd s bein g
t ra n s m i t t e d to the ap p e l lat e cou rt, the reason s for
t hei r n on - t ran s m i t t a l , an d the step s t ake n or that
cou ld b e t ake n t o hav e t h e m avai lable.
The clerk of cou rt shall fu rn i sh the p art i es with
cop i e s of his let ter of t ra n s mi t t a l of the reco rd s to
the ap p e l l at e court. (10a)
Sec. 11. Transcript. — Upon the p erfect i on of the

a p p e a l , the cle r k sh a l l i m m e d i a t e l y d i re c t the
s t e n o g ra p h e r s c o n c e rn e d to at t ac h to the record of
the cas e five (5) cop i e s of the t ra n s c ri p t s of the
t e s t i m o n i a l e v i d e n c e referred to in the record on
appeal . The s t e n o g r a p h e r s c o n c e r n e d s h a l l
572
t ra n s c ri b e su c h t e s t i m o n i a l e v i d e n c e an d shal l
p rep a r e an d affix t o t h ei r t ra n s c ri p t s a n i n d e x
con t ai n i n g the n ame s of the wi t n e s s e s and the page
wh erei n th ei r t est i m on i e s are found, and a list of
the e xh i b i t s and the pages wh erei n eac h of the m
a p p e a r s t o h av e b ee n offere d an d a d m i t t e d o r
rejected by the trial court. The t ran scri p t s shall
be t ran smi t t ed to the clerk of the trial court wh o
shall t h e re u p o n arran ge the same in the order in
wh ich the w i t n e s s e s testified at the trial, and shall
cause the pages to be nu mbered con secut ively. (12a)
Sec. 12. Transmittal. — The clerk of the t rial

Cou rt sh al l t ra n s m i t t o the a p p e l l a t e Cou rt the
original record or the ap p roved record on appeal
w i t h i n t h i rt y (30 ) d ay s from the p e r f e c t i o n o f
the appeal, t oget h er with the proof of p aymen t of
the ap p el lat e cou rt docket and other lawful fees,
a c e r t i f i e d t ru e cop y o f the m i n u t e s o f the
p roce ed i n gs, the order of approval, the certificat e
of correct n ess, the original d ocu men t ary evi d en c e
re fe rre d t o t h e re i n , an d the ori gi n a l an d t h re e
(3) ) c o p i e s o f the t r a n s c r i p t s . C op i e s o f
the t r a n s c r i p t s an d c e rt i f i e d t ru e c o p i e s o f
the d ocu m en t a r y evi d en c e shall remain in the
lower court for the exami n at i on of the parties.
(11a)
NOTE
1. The former rule was t hat although the clerk of

the lower court has the duty to elevate the records to
the appellat e court, the appellant must see to it t hat such
dut y is complied wit h, ot herwise the appeal can be
dismissed for failure to prosecute (Sarmiento vs. IAC, et
al., G.R. Nos. 75409-10, Aug. 17, 1987). This was often
criticized since it in effect penalized the appellant for the
failure of the clerk to comply with his official duties.
573
I t would appear t hat such doctrine was based on

Sec. 1(c) of the former Rule 50 which considered as a
ground for dis missa l of t he appeal the "failure of the
appellant to prosecut e his appeal under section 3 of Rule
46." That provision referred to declared, in t ur n, t hat
if t he record on appeal was not received by the appellat e
court wit hin 30 days, the appellee may obtain an order
dir ect ing t he t r a ns m i t t a l of t he same or to have the
appeal declared as having been abandoned for failure to
prosecute.
Both provisions, t hat is, Par. (c) of Sec. 1, Rule 50
and Sec. 3, Rule 46, have been eliminat ed in these revised
Rules. This makes evident the fact t hat t rans mit t a l of the
record should be the sole responsibilit y of the clerk of court,
as indeed it must be so. It will also be noted t hat Sec. 10
of t his Rule, as now amended, makes it the furt her duty
of the clerk of court to furnish the part ies with copies of
his letter of t ransmit t al of the records to the appellate court,
to enabl e the lat t e r to mo nit o r or verify t he clerk' s
compliance wit h his dut y to do so.
Sec. 13. Dismissal of appeal. — Prior to the tran s•

mi tt al of the ori gi n a l record or the rec ord on appeal t
o th e a p p e l l a t e c o u r t , the t ri a l C o u rt may , motu
proprio or on mot i on , d i s m i s s the ap peal for h av i n g
bee n t ake n ou t of tim e or for n o n - p ay m en t o f the
d o c k e t an d o t h e r l aw fu l fee s w i t h i n the r e g l e m e n t a r
y p e ri od . (13a) (As amended in A.M. No. 00-2-10-SC,
effective May 1, 2000)
NO TES
1. A motion to dismiss the appeal on the foregoing

ground may also be filed in the appellat e court (Sec. lfb],
Rule 50).
2. The failure of the appellee to move for dismissal

in the trial court of an appeal perfected out of t ime does
574
RUL E 41 AP P E AL FRO M TH E SE C . 13
not prevent him from filing such a motion to dismiss in

the appellate court as it involves the appellate jurisdict ion
of the latt er court (Garganta vs. CA, et al., 105 Phil. 421).
In one case, the S upr eme Court held that where the
appellant had already paid for the print ing of the record
on appeal and the docket fee and had already filed his
brief, the appellee is estopped on equit able grounds from
raising such issue since, by his inact ion, he had virtually
acquiesced t hat the delay was justified (Santiago, et al.
vs. Valenzuela, 78 Phil. 397). However, in the later case
of Arellano, et al. vs. CA, et al. (L-31816, Nov. 24, 1972),
it was held t hat the Santiago doctrine had been abandoned
in Miranda vs. Guanzon (92 PhiL 168), as the requ ir ement
regarding the perfection of the appeal within the reglemen•
tary period is not only mandatory but jurisdict ional.
See, however, the discussion on estoppel by laches
on this matt er, st art ing from Note 17 under the Genera l
Principles at the beginning of this volume.
3. It has been held t hat where the appellant failed
to perfect his appeal on time due to fraud, accident, mistake
or excusable negligence and his appeal was dismissed by
the trial court, his remedy is a petit ion for relief, under
Rule 38, from such order dismissing his appeal. If the
petition is denied, he can appeal from the order denying
his pet ition (De Luna, et al. vs. Palacio, et al., L-26927,
Dec. 27, 1969). The recourse to a petit ion for relief, as
t herein stated, is still applicable provided the conditions
therefor under Rule 38 are present. However, the order
denying the petition for relief is no longer appealable, the
remedy under Sec. 1 of this Rule being an appropriat e
petition under Rule 65.
4. With the revision of the Rules of Civil Procedure

in 1997, and in order to make appeals from the Regional
Trial Court more or less uniform, a number of provisions
in the for mer Rule 41 were eliminat ed or modified.
Thus, the special rules and requirement s for appeals in
575
c e r t io r a r i , p r o h i b it io n , m a n d a m u s , quo w a r r a nt o ,
employers' liabilit y cases (t hen Sec. 17) and in habeas
corpus cases (t hen Secs. 18 to 21) were discarded and no
longer applied to appeals in the aforesaid cases. However,
Sec. 3 of Rule 41 was subsequent ly amended, effective
July 15, 2001, to restore the rule t hat appeals in habeas
corpus cases shall be t aken wit hin 48 hours from notice of
the judg ment or order appealed from.
576
RULE 42
PETITION FOR REVIEW FROM THE REGIONAL

TRIAL COURTS TO THE COURT OF APPEALS
Section 1. How appeal taken; time for filing. — A

p art y d e s i ri n g to ap p eal from a d e ci s i o n of the
Regional Trial Court ren d ered in the exerci se of its
appellate j u ri sdi ct ion may file a verified p et iti on for
revi ew wit h the Court of Ap p eals, p ayi n g at the
sam e t i m e t o the cl e r k o f sai d C o u rt the
c o r r e s p o n d i n g d o c k e t an d o t h e r l a w f u l f ee s ,
d e p o s i t i n g the amou n t of P500.00 for cost s , an d
fu rn i shi ng the Regional Trial Court and the adverse
party with a copy of the petition. The p et it ion shall
be filed and served with in fifteen (15) days from
notice of the d eci si on sought to be revi ewed or of
the d en ial of petitioner' s motion for new trial or
re con s i d e ra t i o n filed in due time after j u d gment.
Upon proper moti on and the p aymen t of the full
amount of the docket and other lawful fees and the
d e p o s i t for c o st s b efo r e the e x p i r a t i o n o f the
re g l e m e n t a r y p eri od , the Court of Ap p eal s ma y
grant an add iti on al period of fifteen (15) days only
wi t h i n wh i c h to file the p et i t i on for review. No
further e xt en si o n shall be granted except for the
most comp el li n g reason and in no case to exceed
fifteen (15) days, (n)
NOTES
1. This Rule had its antecedent s in the resolut ion of

the Court of Appeals of August 12, 1971 which was
necessitated by the fact t hat R.A. 6031, in amending the
Judiciar y Act, did not prescribe the procedure to be
followed in the review of judgment s or final orders of the
former Courts of First Instance on appeal from judgment s
577
in cases falling under the exclusive original jurisdict ion

of the inferior court s. That resolut ion was adopted in
Par. 22(b) of the I nt er im Rules as the procedure to be
followed in the appellat e review of such judgment s and
final orders t hus rendered by the Regional Trial Court in
the exercise of its appellate jurisdict ion, and has now been
formulat ed into t his Rule, wit h some modificat ions.
2. . Rule 41 , as alr ead y st at ed , refer s to

r egu lar appeals from the Regional Trial Court exercising
original jur isdict ion, while t his Rule cont emplat es t hat
said trial court is exercising appellat e jur isd ict io n. In
the first sit uat ion, an appeal on pure quest ions of law
cannot be t aken to the Court of Appeals and such
improper appeal will be dismissed pur suant to Sec. 2,
Rule 50. However, as hereaft er explained, appeals to
the Court of Appeals from the Regional Trial Court s
under Rules 42 and 43 may be made solely on quest ions
of law.
Sec. 2. Form and contents. — The p e t i t i o n sh all

be filed in seve n (7) legi b le cop i es , wi t h the ori gi nal
cop y i n t e n d e d for the Cou rt b e i n g i n d i c a t e d a s
suc h by the p et i t i on e r , and sh all (a) st at e the full
n ame s o f the p art i e s t o the case, wi t h ou t i mp lead i n g
the l o w e r c o u r t s o r j u d g e s t h e r e o f e i t h e r a s
p e t i t i o n e r s or re s p o n d e n t s ; (b) i n d i cat e the specifi c
ma t e ri a l d at e s s h o w i n g that i t wa s filed o n time;
(c) se t forth c o n c i s e l y a s t at e m e n t of the mat t er s
i n v o l v e d , the i s s u e s ra i s e d , the s p e c i f i c a t i o n o f
erro rs of fact or law, or both, al l eg ed l y c o m mi t t e d
b y the R e g i o n a l Tri al Cou rt, an d the re a s o n s o r
a r g u m e n t s re li e d up o n for the a l l o w a n c e o f the
a p p e a l ; (d) b e a c c o m p a n i e d b y c l e a r l y l e g i b l e
d u p l i c a t e ori gi n a l s or t rue cop i e s of the j u d g m e n t s
or final o rd ers of both lower cou rt s, certifi ed correct
by the clerk of Cou rt of the Regi on a l Trial Court,
the req u i si t e n u mb e r of p lain cop i e s t h ereo f and of
the p l e a d i n g s an d oth e r mat e ri a l p o rt i on s o f the
578
RUL E 42 P E T I T I O N FO R RE VIE W SEC . 2
FRO M TH E RTC T O THE C A
re co r d a s wou l d su p p o r t the a l l e g a t i o n s o f the

p et it ion.
The p et i t i on er shall also submit t ogeth er with
the p eti ti on a cert i fi cati on under oath that he has
no t t h e r e t o f o r e c o m m e n c e d an y o t h e r a c t i o n
i nvolvin g the same i ssu es in the S u p re me Court, the
Court of Ap p eals or different di vi sion s thereof, or
any other t ri b un al or agency; i f there i s suc h ot h er
action or p ro ceed i n g, he mus t state the st at u s of
the same, and i f he shou ld thereaft er learn that a
si mi lar acti on or p ro c eed i n g has been filed or i s
p en d i n g before the Su p rem e Court, the Court of
App eals, or different d i vi si on s thereof, or any oth er
t ri b u n a l o r a g e n c y , h e u n d e rt a k e s t o p ro m p t l y
inform the aforesaid cou rt s and other t ri b u n al or
agency t h e reo f wit hi n five (5 ) days therefrom, (n)
NOTES
1. The first paragraph details the form and contents

required for the sufficiency in form and substance of the
pet it ion. As now provided herein, the appeal under this
Rule may be on eit her quest ions of fact or of law or on
mixed quest ions of fact and law. It further specifically
st ates t hat the lower courts or judges t hat rendered the
judg ment or final order complained of should not be
impleaded as par t ies. The same prohibit io n is now
provided in pet it io ns for review on cert ior ar i under
Rule 45, since these are pet it ions for purposes of appeal
and not p et it io n s in or ig ina l act io ns . The o t he r
requirement s, which will also be found in the subsequent
Rules, are taken from Revised Circular No. 1-88 which
was adopted by the Supreme Court purposely for dispatch
in appellate proceedings.
2. The second paragraph, herein referred to as the
certification against forum shopping, is also incorporated
in the subsequent Rules by way of detailed implementation
579
RUL E 42 R E M E D I A L LAW COMPENDIU M S E C S . 3 , 4-5
of Par. 17 of the Int er im Rules.
Sec. 3. Effect of failure to comply with requirements.

— The fai lu re of the p et i t i on e r to comp ly wit h any
o f the f o r e g o i n g r e q u i r e m e n t s r e g a r d i n g the
p a y m e n t of the d ocke t an d ot h e r lawfu l fees, the
d ep o s i t for cost s , p roof of servi ce of the p et it ion,
and the con t en t s of and the d o c u m e n t s wh ic h should
a c c o m p a n y the p eti t i o n shall be su ffi ci ent ground
for the d i s m i s s a l thereof, (n)
NOTE
1. This sect ion is likewise based on t he provisions of

Revised Circular No. 1-88 which, as already st at ed, was
devised to eliminat e the causes of judicial backlog and
delay in light of the exper ience of the appellat e courts.
Sec. 4. Action on the petition. — The Cou rt of A p p e a l

s ma y r e q u i r e the r e s p o n d e n t t o file a c o m m e n t on
the p et i t i o n , not a mot i o n to di smi ss, w i t h i n te n (10 )
d ay s from n ot i c e , o r d i s m i s s the p et it i o n i f i t finds
the sam e to be p at en t l y wi th ou t meri t, p ro s e c u t e d
ma n i f e st l y for delay, or that the q u es t i o n s rai se d
t h e re i n are to o u n s u b s t a n t i a l t o req u i r e
c o n s i d e ra t i o n , (n)
Sec. 5. Contents of comment. — The com m en t of

the r e s p o n d e n t sh al l be filed in seve n (7) legib le
cop i es , a c co m p a n i e d by cert i fied true cop i e s of such
mat e ri a l p o rt i on s of the record referred to t h erei n
t og et h e r wit h ot h e r s u p p o rt i n g p ap er s and shall (a)
stat e w h e t h e r o r not h e accep t s the s t a t e m e n t o f
mat t er s i n volve d in the p eti t i on; (b) p oi nt out such
i n s u f fi ci en c i e s or i n a c c u ra c i e s as he b eli eve s exist
in p et i t i on e r' s s t a t e m e n t of mat t er s i n volve d but
w i t h ou t re p et i t i o n ; an d (c) st at e the reason s why
580
RUL E 42 P E T I T I O N FO R RE VI E W S E C S . 6- 7
the p et i t i on sh ou l d not be given due course. A copy

t h ereo f shall be served on the petit ion er, (n)
Sec. 6. Due course. — If upo n the fili ng of the

c o m m e n t o r su c h ot h e r p l e a d i n g s a s the Cou rt
ma y allo w or req u i re , or after the e xp i ra t i o n of
the p e ri o d for the fi li n g t h e re o f w i t h o u t su c h
co m m en t o r p l ead i n g h avi n g been su b mi t t ed , the
Court of Ap p ea ls finds prima facie that the lower
cou rt ha s com mi t t e d an error of fact or law that
wil l w a r r a n t a re v e r s a l or m o d i f i c a t i o n of the
a p p e a l e d d e ci s i o n , i t ma y a c c o rd i n g l y giv e du e
cou rse to the p eti ti on, (n)
Sec. 7. Elevation of record. — W h e n e v e r the Court

of Ap p eals deem s i t necessary, i t may order the clerk
of cou rt of the Regional Trial Court to elevat e the
ori gin al record of the case i n clu d i n g the oral and
d ocu m en t a r y evi d en c e wi thi n fifteen (15) days from
n ot ice, (n)
NOTES
1. The Court of Appeals may dismiss the petition

outright or require a comment thereon. Depending on
the complexity or ambiguit y of the issues for resolution, it
could also require subsequent exchanges by the part ies,
such as the filing of a reply and a rejoinder, in the sound
exercise of its discretion. See, however, Appendix R.
2. . If w a r r a nt e d from the exc ha nge s UNDE R
t he guideline in Sec. 6, the appellate court may give due
course to the petition and, for purposes of its decision
therein, it may require the filing of memoranda. The
original record in the lower court may be ordered elevated
for that purpose or for such other purposes as determined
by the appellate court.
581
Sec. 8. Perfection of appeal; effect thereof. — (a) Upon

the t i mel y filing of a p et it i o n for re vi e w and the
p a y m e n t o f the c o r r e s p o n d i n g d ocke t an d oth er
lawfu l fees, the app eal i s d eeme d p erfect ed as to the
p et i t i on e r .
The R e g i o n a l Tri al Cou rt lose s j u ri s d i c t i on ove
r the cas e upo n the p e rf e ct i o n o f the ap p eals filed in
du e time an d the exp i rat i o n of the time to ap p eal of
the ot he r p art i es.
H o w e v e r , b efore the Cou rt o f Ap p ea l s gi ves
du e cou rs e to the p et i t i o n , the Regi on al Trial Court
ma y i s su e o rd e r s for the p r o t e c t i o n an d p rese r•
vat i o n o f the ri g h t s o f the p a rt i e s wh i c h d o not
i n volv e an y mat t e r li t i gat ed by the ap p eal, app rove
c o m p ro m i s e s , p ermi t ap p eal s o f i n d i gen t lit igan t s,
order e xe c u t i o n p e n d i n g ap p eal i n acco rd a n c e with
sect i o n 2 of Rule 39 , an d allow w i t h d ra w a l of the
ap p eal .
(b) Except in civil case s d eci d ed un d er the Rule
o n S u m m a r y P ro c e d u re , the ap p eal shall stay the
j u d g m e n t or final ord er u n les s the Court of Ap peals,
the law, or t h es e Ru le s shall p rovi d e ot h e rw i se , (n)
NO TES
1. The first two par agr aphs r eit er at e the rule as to

when the appellat e court acquires, and the t rial court
correspondingly loses, jur isdict io n over the case save to
perform or allow cert ain acts to be done in connect ion with
t he case in t he sam e ma nne r as provided in the last
par agr aph of Sec. 9, Rule 41 .
2. The t hird par agr ap h is the general rule t hat a

perfected appeal st ays the challenged judgment or final
order. That stay of judgment , however, is not applicable
to civil cases UNDE R t he Rule on S u mm ar y Procedure
which, as revised, provides in Sec. 21 thereof t hat the
582
RUL E 42 P E T I T I O N FOR RE VIE W SEC . 9
decision of the Regional Trial Court in civil cases governed

by said Rule, inc lud ing forcible ent r y and unlawfu l
det ainer cases, shall be immediately executory wit hout
prejudice to a furt her appeal t hat may be taken therefrom,
repealing for t hat purpose Sec. 10 of then Rule 70. This
is reiterated in Sec. 21, Rule 70 of the present revised Rules.
For other similar except ions, see Sec. 4, Rule 39 and
the exp lanat ory notes t hereon. See also Sec. 12, Rule 43
which t reat s of the effect of appeals from the quasi-judicial
agencies concerned.
Sec. 9. Submission for decision. — If the p et i t i on

i s given due cou rse, the Court of Ap peals may set
the case for oral a rgu men t or requi re the p a rt i es to
submit me m o ran d a wit hi n a period of fifteen (15)
d ay s fro m n o t i c e . The cas e sh a l l b e d e e m e d
su b mi t t ed for d eci si o n upon the filing of the last
p lead i n g or m e m o ra n d u m req ui red by th es e Rules
or by the Court itself, (n)
NOTES
1. The appellat e court may, motu proprio or on

motion, set the case on certain specified issues thereof for
oral argument . It may require further memoranda after
such oral argument or allow the submission of memoranda
in lieu of oral argument .
2. The provision here as to when the case is deemed
submitted for decision, which is important in view of the
mandatory periods for the rendit ion of judgment under
Sec. 15(1), Art. VIII of the 1987 Const itut ion, is likewise
based on and in accordance with Par. (2) of the same
section of the aforecited Const itut ional provision.
583
RUL E 43
AP P E A L S FRO M THE [COURT O F TAX AP P E AL S

AND] QU AS I - JU DI CI A L AGE N CI E S TO
THE COURT O F AP P E ALS *
S e ct io n 1 . Scope. — T hi s Ru l e s ha l l app l y to
a p p e a l s [fro m j u d g m e n t s o r final o r d e r s o f t he Co urt
o f Ta x Ap p e a l s and ] fro m a w a r d s , j u d g m e n t s , fina l
o r d e r s o r r e s o l u t i o n s o f o r a u t ho r i z e d b y an y qua s i -
j u d i c i a l a g e nc y i n t he e xe r c is e o f it s q u a s i- ju d i c i a l
f u n c t i o n s . A m o n g t h e s e a g e n c i e s ar e t he C ivi l
S e r v ic e C o m m i s s i o n , C e nt r a l B o a r d o f As s e s s m e n t
A p p e a l s , S e c u r i t i e s an d E x c h a n g e C o m m i s s i o n ,
O f f i c e o f t he P r e s i d e n t , L a n d R e g i s t r a t i o n
A u t h o r i t y , S o c i a l S e c u r i t y C o m m i s s i o n , Civi l
Ae r o n a u t ic s Bo ard , B ur e a u o f P at e nt s , T r a d e ma r k
an d T e c h n o l o g y Transfer,** N a t io na l E le c t r i f i c a t io n
A d m i n i s t r a t i o n , E ne r g y R e g u l a t o r y Bo ar d , Nat io na l
T e le c o m m u n i c a t io n s C o mmiss io n , D e p a r t me n t o f
A g r a r i a n R e f o r m U N D E R R e p u b l i c Ac t 6657 ,
G o v e r n m e n t S e r v i c e I n s u r a n c e S ys t e m , E mp lo ye e s
C o m p e n s a t i o n C o m m i s s io n , P h i l i p p i n e At o mi c
E ne r g y C o m m i s s io n , Bo ar d o f I n v e s t me n t s ,
C o n s t r u c t i o n I n d u s t r y A r b i t r a t i o n Co m m i s s io n , an d
v o l u n t a r y a r b i t r a t o r s a u t h o r i z e d b y law . (n)
NOT E S
1. This Rule was originally embodied in S upreme

Co urt C ir cu la r No. 1-91 an d e ve nt u a l l y beca m e its
Revised Ad m in i st r at i ve C ir cular No. 1-95 which took
effect on Jun e 1, 1995, wit h modificat io ns caused by
'S e e No t e 2 of S e c t i o n 1 of t hi s R u le .
" S e e r e o r g a n i z e d b u r e a u s a s p r o v i d e d i n R.A. 8 2 9 3 ( I n t e l l e c t u a l
P r o p e r t y Co d e ) .
584
RUL E 4 3 A P P E AL S FRO M Q U A S I - J U D I C I A L A G E N C I E S S EC . 1
T O TH E CO UR T O F A P P E A L S
ame nd ment s to Sec. 9, B.P. Blg. 129 by R.A. 7902. Said

Sec. 9, as amended, const it utes the subst ant ive basis for
this Rule, and vests "exclusive appellate jurisdict ion over
all final judgment s, decisions, resolutions, orders or awards
of Regio nal Tr ial Court and quasi- judicia l agenc ies,
inst rument alit ies, boards or commissions" in the Court of
Appeals, wit h t he exception of those falling wit hin the
appellat e jur isdict io n of the Supreme Court under the
Const it ut ion, the Labor Code and the Judiciar y Act.
2. Decisions of the Court of Tax Appeals are now

appealable to the Supreme Court by petition for review
on cert iorari under Rule 45, pur suant to R.A. 9282 which
amended R.A. 1125 (see Appendix CQ.
3. The "volunt ary ar bit r at ors aut horized by law"

include the volunt ary arbit rator appointed and accredit ed
under the Labor Code or pur suant to the provisions of
R.A. 876, as they are considered included in the term
"quasi- judicial inst r u me nt a lit ies " (Luzon Development
Bank vs. Association of Luzon Development Bank
Employees, et al., G.R. No. 120319, Oct. 6, 1995).
4. A p r o s e c u t o r co ndu ct in g a p r e l i m i n a r y
i n v e s t ig a t io n per fo r m s a q ua s i- ju d ic ia l funct io n,
but his office is not a quasi-judicial body. Unlike the quasi-
judicial agencies contemplated in this Rule, it does not
exercise ad judicat or y or r ule- mak ing funct ions. The
preliminar y invest igat ion conducted t herein is not a trial of
the case on the merits but only det ermines whether a crime
has been commit t ed and t hat the accused is probably guilty
thereof. While the prosecutor is making t hat
det erminat ion, he is not acting as a quasi-court since it is
the court itself t hat will pass judgment on the accused.
Hence, the Office of the Prosecutor is not a quasi-judicial
body and its act ion approving the filing of an infor•
mation is not appealable to the Court of Appeals under
Rule 43 (Bautista vs. CA, et al., G.R. No. 143375,
July 6, 2001); Orosa vs. Roa, G.R. No. 140423,
585
July 14, 2006 cf. Alcaraz vs. Gonzales, G.R. No. 164715
Sept. 20, 2006).
Sec. 2. Cases not covered. — Thi s Rule shall not

app ly to j u d g m e n t s or final o rd e r s issu e d UNDER
the Labor Code of the Ph i li p p i n e s , (n)
NOTES
1. Judg me nt s and final orders or resolutions of the

Nat ional Labor Relat ions Commission are now reviewable,
in the first inst ance, by t he Court of Appeals on cert iorari
under Rule 65 (see Note 2 under Sec. 4 thereof), but those
of the E mplo yees Co mpensat io n Commission should be
bro ught to the Court of Appeals t hrough a pet it ion for
review under t his Rule. Also, appeals from the Office of
the O mbud s ma n in ad minist r at ive disciplinar y cases are
now covered by t his Rule (Fabian vs. Desierto, etc., et al.,
G.R. No. 129742, Sept. 16, 1998).
2. Special rules of procedure have also been adopted

for cases formerly wit hin t he jurisdict ion and adjudicatory
processes of the Securit ies and Exchange Commissio n.
I n A.M . No. 0 1 - 2 - 0 4- S C , t he S u p r e m e C o u r t
p r o m u l g a t e d I nt e r i m Ru le s of P r o c ed u r e for I nt r a •
c o r p o r a t e C o n t r o v e r s i e s , effect ive Apr i l 1 , 2001
(Appendix W).
In A.M. No. 00-8-10-SC, in its Resolut ion promulgat ed
on S ept ember 4, 2001 , the S upr eme Court clarified the
legal fees to be collected and the applicable period of appeal
in case s fo r mer ly co gniza ble by the S e c u r it ie s and
E x c h a n g e C o m m i s s i o n , effect ive Oc t o be r 1 , 2001
(Appendix X). This was furt her amended in an en banc
resolut ion, effective December 10, 2002.
S ubsequ e nt ly, for the r easo ns st at ed ther ein, the
S upr eme Court in its resolut ion of Sept ember 14, 2004 in
A.M. No. 04-9-07-SC clarified the proper mode of appeal
586
RUL E 4 3 A P P E AL S FRO M Q U A S I - J U D I C I A L A G E N C I E S SE C . 3
T O TH E C O UR T O F A P P E AL S
for cases involving corporate rehabilit at io n and int ra•

corporat e co nt ro ver sies, effective S ept ember 30, 2004
(Appendix Y).
S e c 3. Where to appeal. — An app eal UNDER thi s

Rule may be take n to the Court of Ap p eals wi t h i n
the p eri o d an d i n the m an n e r h e re i n p ro v i d e d ,
wh et h e r the ap p eal i n volve s q u e st i on s of fact, of
law, or mi xe d q u est i on s of fact and law. (n)
NOTES
1. This is anot her instance where an appellat e review

solely on a quest ion of law may be sought in t he Court of
Appe a ls inst ea d of the S upr e me Co urt . The sam e
procedure obtains in appeals from the Regional Trial Court
where it decided the case in the exercise of its appellat e
jurisdict ion, as regulated by Rule 42.
2. . As a g e ne r a l pro po s it io n , a pp e al s on
pur e quest ions of law are brought to the Supreme Court
since Sec. 5(2)(e), Art. VIII of the Const itution includes
in the enumerat io n of cases wit hin its jurisdict ion "(a)ll
cases in which only an error or quest io n of law is
invo lved." I t should not be overlooked, however, t hat
the same provision vest ing jur isdict ion in the Supreme
Court of the cases enumerat ed therein is prefaced by the
st atement t hat it may "(r)eview, revise, reverse,
modify, or affirm on appeal or cert iorari as the law or
the Rules of Court may provide," the judgment s or final
orders of lower courts in the cases t herein enumerat ed.
Accordingly, the aforesaid provisions of Rules 42 and 43
const itute the exceptions.
For t hat matt er, this is the same reason why appeals
from the judgment or final order of the inferior courts,
even on pure quest ions of law, are appealable to the
Regional Trial Court in line with the specific provision
therefor in Sec. 1, Rule 40.
587
Sec. 4. Period of appeal. — The a p p e a l sh all

be t ake n wi th i n fifteen (15) day s from notice of the
a w a rd , j u d g m e n t , fin a l ord e r o r r e s o l u t i o n , o r
from the dat e of its last p u b li cat i on , i f pub li cat ion i
s r e q u i r e d by la w for it s e f f e c t i v i t y , or of the
d e n i a l o f p e t i t i o n e r ' s m o t i o n for ne w t ri al o r
re c o n s i d e ra t i o n dul y filed in acco rd an c e wit h the
g o v e rn i n g law of the Cou rt or agenc y a quo. Only
on e (1) mot i o n for re c o n s i d e ra t i o n shall be allowed .
Upo n p rop e r m ot i o n an d the p a y m e n t o f the full
am ou n t of the d ocke t fee before the exp i rat i on of
the re g l e m e n t a r y p eri od , the Court of Ap peal s may
gran t an ad d i t i on a l p eri od of fifteen (15) day s only
wi t h i n wh i c h to file the p et i t i o n for rev i ew. No fu rt h er
e xt e n s i o n shall be gran t e d excep t for the mos t
c o m p e l l i n g rea so n in no cas e to excee d fifteen
(15) days , (n)
Sec. 5. How appeal taken. — A p p ea l sh al l be

t a k e n by fi li n g a veri fi e d p et i t i o n for revi e w in
seve n (7) legi b le cop i e s wit h the Court of Ap peals,
wi t h p roo f o f s e r v i c e o f a cop y t h e r e o f o n the
a d v e rs e p art y an d on the Cou rt or age n c y a quo.
The ori gi n a l cop y of the p et i t i o n i nt en d e d for the
Cou rt of Ap p ea l s sh all be i n d i cat e d as suc h by the
p et i t i on e r .
Upo n the filin g o f the p et i t i on , the p et i t i on er
sh a l l pa y t o the cl e r k o f Cou rt o f the Cou rt o f
Ap p ea l s the d o c k e t i n g an d ot h e r lawfu l fees and
d ep o s i t the su m of P500.00 for costs. Exe m p t i o n
from p a y m e n t of d o c k e t i n g and ot he r lawfu l fees
an d the d e p o s i t fo r c o s t s ma y b e g r a n t e d b y
the Cou rt of A p p ea l s upo n veri fi ed mot i o n set t i n g
fo rt h v a l i d g r o u n d s t h e r e f o r . I f the Cou rt o f
Ap p eal s d en i e s the mot i on , the p et i t i on e r shall pay
the d o c k e t i n g an d ot h e r lawfu l fees and d ep osi t for
cost s w i t h i n fi ft een (15) day s from n ot i c e o f the
d en i al, (n)
588
RUL E 4 3 A P P E AL S FRO M Q U A S I - J U D I C I A L A G E N C I E S SEC . 6
T O TH E CO UR T O F A P P E AL S
NOTE
1. . In view of the na t u r e , s u b j e c t - m a t t e r
an d procedure in cases before the quasi- judicia l
agencies UNDE R t hei r different go verning laws, t he
app e l la t e procedure and r equir ement s in this Rule are
somewhat different from t hose in r egula r appeals .
T hus , the periods and requirement s for the appeal are more
stringent an d specific p r o vi s io n s ar e mad e for mo t io n s
for reconsiderat ion and extensions of t ime.
Sec. 6. Contents of the petition. — The p et i t i on for

review sh all (a) state the full n ames of the p art i es
t o the c a s e , w i t h o u t i m p l e a d i n g the C o u rt o r
a g e n ci e s eithe r a s p e ti ti on e r s o r r e sp o n d e n t s ;
(b) con t ai n a con c i s e s t a t e m e n t of the facts and
i ssu es i n volved and the grou n d s relied upon for the
revi e w ; (c) be a c c o m p a n i e d by a clearl y legi b l e
d u p li cat e o ri gi n al or a certi fied tru e copy of the
award, j u d gmen t , final order or resolut ion app ealed
from t oget h e r wit h cert i fied true cop i e s of suc h
mat eri al p orti on s of the record referred to t h erei n
and ot h e r s u p p o r t i n g p ap e rs ; and (d) con t ai n a
sw o r n c e rt i f i c a t i o n a g a i n s t foru m s h o p p i n g a s
p rovid ed in the last p aragrap h of sect ion 2 , Rule 42.
The petit ion shall state the specific material d at es
sh owi n g that i t wa s filed within the period fixed
h erei n. (2a)
NOTE
1. . I t ha s been c lar ified t hat Par . (c) of

the enumerat ed requirement s in Sec. 6, requiring
"certified t rue copies of the record referred to t herein
and other support ing papers," does not mean t hat all
support ing papers referred to should be certified.
It is significant t hat in appeals under Rule 42, only
judgment s or final orders of the lower courts need to be
589
certified t rue copies or duplicate originals. The same is

true with respect to a similar requirement in appeals under
Rule 45, and in original act ions for cert iorari under Rule
65 in relat ion to Rules 46 and 56. There is no plausible
reason why a'different t r eat me nt or strict er requirement
should be applied to pet it ions under Rule 43 (Cadayona
vs. CA, et al., G.R. No. 128772, Feb. 3, 2000; cf. Uy, et al.
vs. BIR, et al., G.R. No. 129651, Oct. 20, 2000; Gonzales
vs. CSC, et al., G.R. No. 139131, Sept. 27, 2002).
Sec. 7. Effect of failure to comply with requirements.

— The fai lu re of the p et i t i on e r to comp l y wit h any o
f the f o r e g o i n g r e q u i r e m e n t s r e g a r d i n g the
p a y m e n t o f the d ocke t an d ot h e r lawfu l fees, the
d ep o s i t for cost s , p roof of servi c e of the petit ion,
an d the con t en t s of and the d o cu m e n t s wh i c h should
a c c o m p a n y the p et it i o n shall be su ffi ci ent ground
for the d i s m i s s a l thereof, (n)
Sec. 8. Action on the petition. — The Cou rt of A p p e a l

s ma y r e q u i r e the r e s p o n d e n t t o file a c o m m e n t on
the p e t i t i on , not a mot i o n to di smi ss, w i t h i n te n (10 )
d ay s from n ot i ce , o r d i s m i s s the p et i t i o n i f i t finds
the sam e to be p at en t l y with ou t meri t , p ro s e c u t e d
ma n i f e st l y for d elay, or that the q u e s t i o n s rai se d
t h e re i n are to o u n s u b s t a n t i a l t o req u i r e
c o n s i d e ra t i o n . (62)
NOTE
1. The provisions of the S upr e me Court ' s revised

Cir cular s Nos. 1-88 and 28-91 have also been adopted in
this Rule, especially on the form and contents of the petition
for review. For failure to comply t herew it h, or where the
mer it s of the pet it io n do not w a r r a n t co ns ider at io n,
Secs. 7 an d 8 aut ho r ize the o ut r ight dismissal of the
pet it ion.
690
RUL E 4 3 A P P E AL S FRO M Q U AS I - J U D I C I A L A G E N C I E S S E C S . 9 -10
T O TH E C O UR T O F A P P E AL S
Sec. 9. Contents of comment. — The co m m e n t

shall be filed wi th i n ten (10) days from n ot i ce in
seven (7) legib le copi es and accomp an i ed by clearly
l e g i b l e c e rt i f i e d t ru e c o p i e s o f suc h m a t e r i a l
p orti on s of the record referred to th erei n t oget h e r
with oth er su p p ort i n g papers. The comm en t shall
(a) p oi n t ou t i n s u f f i c i e n c i e s o r i n a c c u r a c i e s in
p e t i t i o n e r ' s s t a t e m e n t o f fact an d i s s u e s ; an d
(b) state the rea so n s why the p et i ti o n sh ou l d be
d eni ed or d i smi s sed . A copy t h ereof shall be served
on the p eti ti on er, and proof of such servi ce shall be
filed wit h the Court of App eals. (9a)
NOTE
1. The contents of the comment to be filed by the

respondent is more specifically spelled out in this section
which, aside from the argument s usually required in a
co mme nt , addit io na l l y calls for the specificat io n of
insufficiencies or inaccuracies in the st at ement of facts
and issues in the pet it ion. Furt her mo re, should any
mat er ia l port ion of the record be refer red to by t he
respondent, his comment should be accompanied by legible
certified true copies of t hat portion.
The appellate court may also require the filing of a
reply but fur t her su bmis s io ns are go verned by the
resolution in A.M. No. 99-2-04-SC (see Appendix R).
Sec. 10. Due course. — If upon the filing of the

com men t or such other p leadi ngs or docu men t s as
may be requi red or allowed by the Court of Appeals
or upon the exp i rat ion of the period for the filing
thereof, and on the b asi s of the p eti t i o n or the
records the Court of Appeals finds prima facie that
the court or agency con cern ed has committed errors
of fact or law that wou l d wa rra n t re v e rs a l or
mod i fi cati on of the award, j u dgment, final order or
591
RUL E 44 R E M E D I A L LAW COMPENDIU M SE C S 11-12
re s o lu t i o n sou gh t to be re v i e w e d , i t may give due

cou rs e to the p et i t i on; ot h e rw i s e , i t shall d i smi ss
the same. The fin din gs of fact of the cou rt or agency
con ce rn ed , wh e n su p p ort ed by su b st an ti al evi den ce,
shall be b i n d i n g on the Court of Ap peal s, (n)
NO TES
1. What bears specific notice in t his section is t hat

the jur ispr ude nt ia l rule t hat the findings of fact of the
court or agency a quo are binding on the appellat e court
has now been made a specific rule of procedure. This is
similar to the rule on the findings of fact of the Court of
Appeals vis-a-vis t he S upr eme Court on appeal to the
latt er, and, under appropr iat e circumst ances, the case law
creat ing except ions to t hat rule may very well apply to
the similar provision of t his section.
2. . Sec. 12 of t hi s Rule ha s been i nt e r p r et e d

to mean t hat the appeal will not stay the award,
judgment , fina l o r de r o r r e s o l u t io n unles s the
go ver n in g law direct s ot herwise (Lapid vs. CA, et al.,
G.R. No. 142261, June 29, 2000).
Sec. 11. Transmittal of record. — Wit h in fifteen

(15) ) d ay s fro m n ot i c e that the p et i t i o n ha s
been gi ve n du e c ou rs e , the Cou rt o f Ap p eal s ma y
requi re the C ou rt o r a g e n c y c o n c e r n e d t o
t r a n s m i t the ori gi n a l or a legi b l e cert i fi ed t rue
copy of the entire reco r d o f the p ro c e e d i n g UNDER
revi e w. The record to be t ra n s m i t t e d ma y be
ab ri d ge d by a g re e m e n t of all p a rt i e s to the
p ro ce ed i n g . The Court of Ap p eals ma y req u i r e or
p ermi t s u b s e q u e n t c o rre ct i o n of or ad d i t i o n to the
re co rd . (8a)
Sec. 12. Effect of appeal. — The ap p eal shall not

sta y the award , j u d g m e n t , final order or re so lu t i on
sou gh t to be re v i e w e d u n les s the Court of Ap p eals
592
RUL E 4 3 AP P E A L S FRO M Q U A S I - J U D I C I A L A G E N C I E S SEC . 1 3
T O TH E CO UR T O F A P P E A L S
shall d i rect ot h e rwi s e upo n suc h t erm s as i t ma y

dee m just. (10a)
Sec. 13. Submission for decision. — If the p et i t i on

i s give n due cou rse, the Court of Appeals ma y set
the cas e for oral argu men t or req ui re the p art i es to
submit m e mo ra n d a wi th in a period of fifteen (15)
d ay s fro m n o t i c e . The cas e sh a l l b e d e e m e d
su b mi t t ed for d eci si o n upon the filing of the last
p lead i n g or m e m o ra n d u m req ui red by t hes e Ru les
or by the Court of Appeals, (n)
NOTES
1. A special pr o cedur e for the t r a n s m i t t a l and

contents of the record to be elevated to the Court of Appeals
is provided for in Sec. 11. Also, unlike the rule in other
cases, an appeal under this Rule shall not stay the award,
judg ment , final order or resolut ion unless ot herwise
provided by the Court of Appeals.
2. The provisions of Sec. 13 are similar to those of

Sec. 9 of Rule 42 and as explained in the notes t herein.
593
PRO CEDURE IN THE COURT OF APPEALS
RULE 44
ORDINARY AP PEA LED CASES
S ect i on 1. Title of cases. — In all case s ap p ealed

to the Court of Ap p eal s UNDER Rule 41 , the title of
the cas e sh all remai n as i t wa s in the cou rt of origin,
but the p art y a p p e a l i n g the cas e shall be furth er
re fe rred to as the ap p e l l an t an d the ad vers e party
as the ap p e l l e e , ( la , R46)
NOTE
1. This r equ ir e me nt on the t it le of the civil cases

when appealed is s imilar to t hat in cr imina l cases as
provided in Sec. 1, Rule 124. The evident purpose is to
avoid confusion in the ident it y of the case on appeal in
relat ion to t hat which was tried and decided by the trial
court since t he part y init iat ing the appeal may not be
the pr incipal defendant named in the lower court.
Of course, if the t it le of the case commenced in the
trial court is erroneous as where a non-part y is impleaded,
such as the public r espo ndent or the t r ia l judge or a
no m i n a l p a r t y wh o sho u l d no t be a p ar t y t o the
appeal, the appellat e court may effect the corresponding
change or correct ion of the t it le of the case on appeal,
indicat ing in its decision the reason for doing so.
Sec. 2. Counsel and guardians. — The c o u n s e l

an d g u a rd i a n s ad litem of the p art i es in the court
of ori gi n shall be re sp e ct i v e l y co n s i d e re d as their
c o u n s e l an d g u a r d i a n s ad litem in the Cou rt of
Ap p ea l s . Wh e n ot h e r s ap p ea r o r are a p p o i n t e d ,
n ot i c e t h e re o f sh all be served i mm e d i at e l y on the
ad v e rs e party and filed wit h the court. (2a, R46)
594
RUL E 44 O R D I N AR Y A P P E A L E D C AS E S S E C S . 3, 4
Sec. 3. Order of transmittal of record. — If the

o ri g i n a l rec o r d o r the reco r d o n a p p e a l i s no t
t ran s mi t t ed to the Court of App eals wit hi n thirty
(30) days after the p erfect i on of the ap p eal, eith er
party may file a mot ion with the trial court, wit h
n ot i c e t o the oth er , for the t ra n s m i t t a l o f su c h
record or record on appeal. (31, R46)
NOTES
1. The former Rule provided t hat if the corresponding

record is not duly and timely received by the Court of
Appeals, aside from the appellee's remedy which has been
retained in this section he may also move the appellate
court to declar e the appeal a bando ned for failure to
prosecute. As elsewhere observed, it was felt t hat the
latt er alt ernat ive is too harsh as it punishes the appellant
for the nonfeasance of the clerk of the lower court, hence
only the first remedy is maint ained. This will, of course,
be wit hout prejudice to proceeding against the erring clerk
of court for the imposit ion of administ rative or punit ive
sanct ions.
2. Under the former rule, it was held t hat the power

to dismiss the appeal under this section pertained to the
appellate court (Sec. lfcj, Rule 50), as the only instance
when the trial court may dismiss an appeal was under
Sec. 13, Rule 41 (Agoncillo vs. CA, et al., L-32094,
Nov. 24, 1972). At t hat time, Sec. 1(c) of Rule 50 provided,
as a ground for dismissal of the appeal, the "failure of the
appellant to prosecute his appeal under section 3 of Rule
46" (now, Rule 44). These revised Rules, however,
eliminated t hat ground for dismissal of an appeal by its
delet ion from the enumerat io n in Sec. 1 of Rule 50, hence
this section has been correspondingly amended.
Sec. 4. Docketing of case. — Upon receivin g the

ori gin al record or the record on appeal and the
595
a c c o m p a n y i n g d o c u m e n t s and exh i b i t s t ran smitt ed

by the lowe r cou rt, as well as the proof of p aymen t
of the d ocke t and oth er lawfu l fees, the clerk of court
of the Court of Ap p eal s shall d oc ke t the case and
notify the p art i es thereof. (4a, R46)
Wit hi n te n (10) day s from re cei p t of said notice,
the ap p e l l an t , in ap p ea l s by record on app eal, shall
file wit h the clerk of Cou rt seve n (7) clearly legib le
cop i e s o f the ap p rove d record o n app eal, t oget h er
wit h the p roof of servi c e of tw o (2) cop i e s th ereof
upo n the ap p e l l e e .
An y u n a u t h o r i z e d a l t e r a t i o n , o m i s s i o n o r
ad d i t i o n in the ap p rov e d record on app eal shall be
a grou n d for d i s m i s s a l of the app eal, (n)
Sec. 5. Completion of record. — Wh ere the record

of the d ock et e d cas e i s i n co mp l et e , the clerk of court
of the Court of Ap p ea l s shall so inform said court
and re c o m m e n d to i t mea su re s n ec ess ary to complete
the reco rd . I t shal l be the dut y of said cou rt to take
ap p rop ri a t e act i o n t o wa rd s the co m p let i o n o f the
record wi t h i n the sh ort es t p ossi b l e time, (n)
Sec. 6. Dispensing with complete record. — Where

the c o m p l e t i o n o f the r e c o r d c o u l d no t b e
a c c o m p l i s h e d wi t h i n a su ffi ci en t p eriod allott ed for
sai d p u r p o s e du e t o i n s u p e r a b l e o r e x t r e m e l y
d i ffi cu lt cau s e s , the cou rt, on its ow n mot i o n or on
mot i o n of an y of the p art i es , ma y decla re that the
r e c o r d an d it s a c c o m p a n y i n g t r a n s c r i p t s an d
e xh i b i t s so far avai l ab l e are su ffi ci ent to d eci d e the
i ssu e s rai se d in the app eal , and shall issu e an ord er
e xp l a i n i n g the re a s o n s for suc h d ecl arat i on , (n)
Sec. 7. Appellant's brief. — It sh all be the duty of

the a p p e l l a n t to file wit h the court, wi t h i n forty-
596
RUL E 44 O R D I N AR Y AP P E AL E D CASE S SEC . 8
five (46) days from recei pt of the notice of the clerk

that all the e vi d e n c e , oral and d ocu m en t a ry , are
att ach ed to the record, seven (7) copies of his legib ly
t yp ewri t t en , mi me og ra p h e d or p ri nted brief, wit h
proof of servi ce of tw o (2) copies t h ereof upo n the
app ellee. (10a, R46)
Sec. 8. Appellee's brief. — Within forty-five (46)

d ay s fro m re c e i p t o f the a p p e l l a n t ' s brief, the
ap p el lee shall file with the court seve n (7) cop i e s of
his legi b ly t yp ewri t t en , mi meog rap h ed or p ri nt ed
brief, with proof of servi ce of tw o (2) copi es th ereo f
upon the app ellant. (11a, R46)
Sec. 9. Appellant's reply brief. — Within t wen t y

(20) days from recei p t of the app ellee' s brief, the
ap p el lan t may file a reply brief an s we r i n g points in
the ap pellee' s brief not covered in his main brief.
(12, R46)
NOTES
1. The failure to file appellant 's brief on time is a

ground for dismissal of the appeal (Sec. lfej, Rule 50).
However, if the failure to do so is due to caso fortuito
or force majeure (in t his case, the ser ies of t yphoons
and illness of appellant ' s counsel), the appeal will not
be dismissed (Monticines, et al. vs. CA, et al., L-35913,
Sept. 4, 1973, and cases therein cited).
The expiry of the period to file appella nt ' s brief
does not aut o mat ically result in the dismissal of the
appeal or the loss of appellate jurisdiction (Infantado vs.
Liwanag, L-23697, Dec. 28, 1968).
2. It has also been held t hat if a motion to dismiss
an appeal has been filed, it suspends the running of the
597
period for filing the appellant ' s brief as the same would
be unnecessar y should the motion be grant ed (Alonso vs.
Rosario, 105 Phil. 654).
3. The failure to file the appellee's brief does not affect

the appeal. The filing of the reply brief is opt ional on the
par t of the appellant .
4. The number of copies of the briefs to be filed and
ser ved ha s been r educed and t he sa me are no longer
requir ed to alwa ys be pr int ed but may eit her be type•
wr it t en or mimeo gr aphed.
Sec. 10. Time for filing memoranda in special

cases. — In ce rt i o ra ri , p roh i b i t i on , m a n d a m u s , quo
wa rra n t o an d habeas corpus case s , the p art i es shall
file, in lieu of b ri efs, t hei r re s p e c t i v e m e mo ran d a
wi t h i n a n on - e xt e n d i b l e p eri od of th i rty (30) days
from rec ei p t of the n oti c e i ssu e d by the clerk that all
the e v i d en c e , oral and d o cu m e n t a ry , i s alread y
at t a ch e d to the reco rd . (13a, R46)
Th e f a i l u r e o f th e a p p e l l a n t t o fil e hi s
m e m o r a n d u m wi t h i n the p eri od t h erefo r ma y be a
grou n d for d i s m i s s a l of the ap p eal, (n)
NO TES
1. The first par agr ap h of this sect ion, amendat ory

of the fo r me r p r a ct ic e , r e q u ir e s the s u b m i s s io n of
me mo r anda, inst ead of briefs, and t he period for the filing
t hereof is non-ext endible but cannot be short ened by the
court.
2. The failure of the appellant to seasonably file his

me mo r a ndu m is a ground for the dismissal of the appeal
i n t he s e sp e c ia l ca s e s , an d Sec. 1(e), Rule 50 ha s
correspondingly been amended.
598
RUL E 44 O R D I N AR Y A P P E A L E D C AS E S S E C S . 1 1 -1 3
Sec. 11. Several appellants or appellees or several

counsel for each party. — Wher e t h er e are se ve ra l
ap p el lan t s or ap p e l lee s, eac h cou n se l rep re s en t i n g
one or more but not all of the m shall be served wit h
only on e copy of the briefs. When several cou n se l
rep re s en t on e ap p ellan t or ap p ellee, copi es of the
brief may be served upon any of them. (14a, R46)
Sec. 12. Extension of time for filing briefs. —

E xt en si o n of time for the filing of briefs will not
be allowed , exc ep t for good and su ffici en t cau se ,
and only i f the moti on for ext en si on is filed before
the e xp i rat i on of the time sou gh t to be ext en d ed .
(15, R46)
Sec. 13. Contents of appellant's brief. — The

app ellant ' s brief shall con tain, in the ord er h erei n
i nd i cat ed, the followin g:
(a) A su bj ect index of the mat t er in the brief
with a di gest of the argu men t s and page referen ces,
an d a t ab l e o f c a s e s a l p h a b e t i c a l l y a r r a n g e d ,
t ext b ook s and st at u t es cited with referen ces to the
pages wh er e they are cited;
(b) An a s s i g n m e n t of errors i n t en d e d to be
urged, wh i c h errors shall be separately, d i st in ct ly
an d c o n c i s e l y s t a t e d w i t h o u t r e p e t i t i o n an d
n u mb ered con secu t i vely;
(c) Under the h ead i n g "Statement of the Case,"
a clear and con ci se stat ement of the nature of the
action, a su mmary of the p roceed in gs, the ap pealed
ru lin gs and orders of the court, the nature of the
j u d gmen t and any other mat t ers n ecessa ry to an
u n d e rs t a n d i n g of the n at u re of the con t rove rsy,
with page referen ces to the record;
(d) UN DE R the h e a d i n g " S t a t e m e n t o f the
Facts," a clear and con ci se st at emen t in a narrative
599
form of the facts ad mi t t e d by both part i es and of

t h os e in con t rov e rs y , t oget h e r wit h the sub st an ce
of the p roof relat i n g t h e ret o in suffi cient detai l to
mak e i t clea rly i n t elli gi b le, wit h page referen ces to
the record ;
(e) A clear and con ci s e s t a t e m e n t of the issu es
of fact or law to be su b m i t t e d to the court for its
judgment ;
(f) U N D E R the h e a d i n g " A r g u m e n t , " the
ap p el lan t ' s a rg u m e n t s on eac h a s s i gn m e n t of error
wit h pag e re f e re n c e s t o the record. The au t h orit ies
reli ed upo n sh all be cit ed by the page of the report
at wh i c h the cas e b egi n s an d the page of the report o
n wh i c h the ci t at i o n i s found;
(g) UNDER the headin g "Relief," a
sp eci fi cat i on o f the ord er o r j u d g m e n t whi c h the
ap p el lan t seeks; an d
(h) I n c a s e s no t b r o u g h t u p b y re co r d o n
ap p e a l , the a p p e l l a n t ' s b ri e f sh al l con t ai n , a s a n
a p p e n d i x , a cop y of the j u d g m e n t or final order
ap p e a l e d from. (16a, R46)
NO TES
1. For a discussion of t he rat ionale and purposes

of t he mat t er s r equir ed to be cont ained in appellant ' s
brief, see De Liano, et al. vs. CA., et al. (G.R. No. 142316,
Nov. 22, 2001).
2. The failure of t he appella nt to make a specific

assig nment of errors in his brief or of page references to
the record as required in t his sect ion is a ground for the
dismissal of his appeal (Sec. Iff J, Rule 50). See, however,
Philippine Coconut Authority vs. Corona International,
Inc. (G.R. No. 139918, Sept. 29, 2000) direct ing a liberal
int er pr et at io n of t his ground.
600
RUL E 44 O R D I N AR Y A P P E A L E D C AS E S SEC . 13
3. The rule is t hat only errors specifically assigned

and properly argued in the brief will be considered, except
errors affecting jurisdiction over the subject-matter, as well
as plain and clerical errors. However, the appellate court
may also consider unassigned errors closely relat ed to or
dependent upon an assigned error and properly argued
in the brief (Sec. 8, Rule 51); or unassigned errors which
are necessary for a just decision in the case or, in t he
int erest of just ice, if they involve quest ions passed upon
in the trial court, and are mat t ers of record having some
bearing on the issues submitted (Korean Airlines Co., Ltd.
vs. CA, et al., G.R. No. 114061, Aug. 3, 1994; cf. Vda. de
Javellana vs. CA, et al., G.R. No. 60129, July 29, 1983;
De Leon vs. CA, et al, G.R. No. 95511, Jan. 30, 1992).
4. In Viron Transportation Co., Inc. vs. CA, et al.

(G.R. No. 117020, April 4, 2003), the S upr eme Court
reit erat ed its holding in Catholic Bishop of Balanga vs.
CA, et al. (G.R. No. 112519, Nov. 14, 1996) where it
summar ized the exceptions to the rule that only errors
assigned in the brief may be considered on appeal, thus;
"Guided by the foregoing precepts, we have ruled
in a nu mber of cases t hat the appellat e court is
accorded a broad discretionary power to waive the lack
of proper assignment of errors and to consider errors
not assigned. It is clothed with ample authorit y to
review rulings even if they are not assigned as errors
in the appeal. Inasmuch as the Court of Appeals may
consider grounds other t han those touched upon in
the decision of the trial court and uphold the same on
the basis of such other grounds, the Court of Appeals
may with no less aut horit y, reverse the decision of
the trial court on the basis of grounds other t han
those raised as errors on appeal. We have applied
this rule, as a matt er of exception, in the following
instances:
601
RUL E 44 R E M E D I A L LAW COMPENDIU M SE C 14
(1) Grounds not assigned as errors but affecting

the jur isdict io n over the subject -matt er;
(2) Mat t er s not assigned as errors on appeal but
are evide nt ly plain or cler ical er r o r s wit hin the
cont emplat io n of law;
considerat io n of which is necessar y in arriving at a
just decision and complete resolut ion of the case or to
serve t he int er est s of just ice or to avoid dispensing
piecemeal just ice;
(4) Mat t er s not specifically assigned as errors on
appeal but raised in the t rial court and are mat t er s of
record having some bear ing on the issue submitted
which the part ies failed to raise or which t he lower
court ignored;
closely relat ed to an error assigned; and
upon which the det er minat io n of a quest ion properly
assigned is dependent ."
Sec. 14. Contents of appellee's brief. — The ap p e l l e e'

s bri ef shal l con t ai n , in the ord er herei n i n d i c a t ed ,
the fol lowi n g:
(a) A su b j ec t i nd e x of the mat t e r in the brief
wit h a d i ges t of the a rg u m e n t s an d pag e refe ren ces,
an d a t a b l e o f c a s e s a l p h a b e t i c a l l y a r r a n g e d ,
t e xt b o o k s an d st at u t e s ci t ed wit h re f e ren ce s t o the
p age s wh e r e the y are cited;
(b) UNDER the h e a d i n g " S t at e m en t of Facts,"
the a p p e l l e e s h a l l s t a t e t h at h e a c c e p t s the
s t a t e m e n t of facts in the ap p ellan t ' s brief, or u nd er
the h e a d i n g " C o u n t e r - S t at e m e n t of Fact s," he shall
p oi n t ou t suc h i n su f fi ci en ci e s or i n a c c u ra c i e s as he
b e li ev e s exi s t in the ap p ellan t ' s st at e me n t of facts
602
RUL E 44 O R D I N AR Y A P P E AL E D C A S E S SE C . 15
with referen ces to the pages of the record in su pport

t h e re o f , bu t w i t h o u t r e p e t i t i o n o f m a t t e r s i n
appellant' s st at e me n t of facts; and
(c) U N D E R the h e a d i n g " A r g u m e n t , " the
ap p el lee shall set forth his a rg u me n t s in the case
on each as si gn m en t of error with page refe ren ce s
to the record. The au t h ori t i es relied on shall be
cited by the page of the report at wh ic h the cas e
b egi n s and the pag e o f the rep ort o n wh i c h the
cit at ion is found. (17a, R46)
NOTE S
1. An appellee who has not also appealed cannot

make ass ig nme nt s of errors in his brief (Gorospe vs.
Penaflorida, 101 Phil. 886) but he can make a counter-
assignment of errors in order to sust ain the judgment
(Saenz vs. Mitchel, 60 Phil. 69; La Campaha Food
Products, Inc. vs. PCIB, et al., L-16405, June 30, 1986).
2. An appellee, in his brief, can also argue on issues

raised at the trial to sustain the judgment in his favor on
other grounds, even if the same were not included in the
decision of the court a quo nor raised in appella nt ' s
assignment of errors or argument s. Hence, the appellat e
court can affirm a judg me nt on grounds ignored or
erroneously decided by the lower court (Relativo vs.
Castro, 76 Phil. 563; Cababasada vs. CA, et al., 83 Phil.
112; Carillo vs. De Paz, L-22061, Oct. 28, 1966; Miguel
vs. CA, et al., L-20274, Oct. 30, 1969). The appellee,
however, cannot assign such errors to have the judgment
modified for, to do so, he must have appealed (Aparri vs.
CA, et al., LI 5947, April 30, 1965; Carbonel vs. CA, et
al., L-40729-30, Jan. 31, 1987).
Sec. 16. Questions that may be raised on appeal. —

Whether or not the appellant has filed a motion for
603
ne w tri al in the Cou rt below, he ma y i n clu d e in his

a s s i g n m e n t of errors any q u est i o n of law or fact that
ha s bee n rai se d i n the Cou rt belo w an d wh i c h i s
wi t h i n the i ssu e s framed by the part i es. (18a, R46)
NOT E S
1. The appeal can raise only quest ions of law or fact

t hat (a) were raised in the court below and (b) are wit hin t he
issues framed by t he part ies t herein. An issue which was
ne it her averred in the complaint nor raised during t he
t rial in the court below cannot be raised for the first t ime on
appeal as it would be offensive to the basic rules of fair
play, just ice and due process (De la Santa vs. CA, et al, L-
30560, Nov. 18, 1985, and cases t her ein cited; Dihiansan, et
al vs. CA, et al, L 49539, Sept. 14, 1987).
H o w e ve r , q u e s t io n s of j u r i s d i c t i o n base d on
considerat io ns of law can be raised in the appellat e court
for the first t ime, but not quest ions of jurisdict ion based
on facts which were not raised in the lower court (Gala
vs. Rodriguez, 25 Phil. 522; Cordero vs. Judge of CFI of
Rizal, 40 Phil. 246).
2. Sec. 8, Rule 51 furt her provides t hat "(n)o error

which does not affect the jur isd ict ion over the subject-
mat t e r or the validit y of the judg ment appealed from or
the proceedings t her ein will be considered unless st ated
in t he a s s i g n m e n t of er ro r s , or closely r e lat e d to or
dependent on an assigned error and properly argued in
the brief, save as the court may pass upon plain errors
and clerical errors."
3. . Also, on appeal, the part ies cannot change

their t heory of action or defense since t hat would be
outside the issues framed in the lower court (Atkins,
Kroll & Co., Inc. vs. Chu Hian Tek, 102 Phil. 948),
except when the fact ual bases t hereof would not require
the pr esent at io n of furt her evidence by the adverse
part y to enable it to
604
RUL E 44 O R D I N AR Y A P P E A L E D C AS E S SEC . 15
meet the issues raised in the new theory of the appellant

(Lianga Lumber Co. vs. Lianga Timber Co., Inc., L-38685,
Mar. 31, 1977).
The reversal of a judgment on appeal is generally
binding only on the part ies in the appealed case and does
not affect or inure to the benefit of those who did not join
or were not made part ies to the appeal. However, where
a judgment cannot be reversed as to the part y appealing
w it ho ut affect ing the r ight s of the co-part y who did
not appeal, or where the rights and liabilit ies of the part ies
who did not appea l and t hose who appea led ar e so
i nt e r w o ve n an d d e p e nd e n t on each ot he r as to be
inseparable, a reversal as to one operates as a reversal
as to all because of the co mmunit y of t heir int er est s
(Tropical Homes, Inc. vs. Fortun, et al., G.R. No. 51554,
Jan. 13, 1989).
4. In the appellate proceedings, the reversal of the

judgment on appeal is binding only on the part ies in the
appealed case and does not affect or inure to the benefit
of those who did not join or were not made part ies to
the appeal (Facundo, vs. Pabalan, etc., et al., L-17746,
Jan. 31, 1962), except where the int erest of those who
appealed and those who did not are so interwoven and
dependent on each other as to be inseparable such t hat a
r ever sa l as to one o per at e s as a r eve r sa l as to all
(Municipality of Orion vs. Concha, 50 Phil. 679; Cayaba
vs. CA, et al., G.R. No. 95918, Mar. 5, 1993). Thus, where
the two respondent s based t heir claim to the land as co-
heirs in pro indiviso shares in the same parcel of land covered
by the same title and neit her respondent asserted a claim
adverse to the others; at the trial, the respondent who did
not appeal did not present any evidence but adopted the
evidence present ed by the other on their communalit y of
int erest s as co-owners of the land in litigation; and the
appeal was from the ent ire judgment involving said parcel of
land and not merely from separate and dist inct portions
thereof, the reversal of the judgment
605
as to t he r espo nd e n t who appealed is bind ing on the

respondent who did not, as the evidence of the former is
the same as t hat of the lat t er (Director of Lands, et al. vs. Reyes,
et al., L-27594, Feb. 27, 1976; Alinsunurin, etc. vs. Director of
Lands, et al, L-28144, Feb. 27, 1976).
5. . It will be recalled t hat when several

defendant s are sued under a common cause of action, an
answer filed by one of t he m gener ally inur es to t he
benefit of the defendant s who did not file t heir answer,
and the case shall be tried on the basis of such answer
as may have been filed (Sec. 3[cJ, Rule 9). The rule,
however, is different wher e jud g me n t i s r ender ed
aga inst several co-part ies since an appeal t herefrom by
one of the part ies does not inure to the benefit of his co-
part ies who did not duly appeal, save in the sit uat io ns in
the cases just noted wher e i n a r ever sa l o bt ained by one
of the appella nt s benefit s his co-part ies who are similarly
circumst anced. If, d u r in g the p e nd e nc y of the app e a l
, exe cut io na l processes had been enforced against the
losing part ies who did not appea l, upon r ever sa l of t he
judg me n t a quo, rest it ut ion or reparat ion shall be made, in
accordance with Sec. 5, Rule 39, in the cases t hu s
cont emplat ed.
6. The det er minat io n by the t rial court is entit led to

the highest respect since the presiding judge was in a
bet t er posit ion to weigh and appraise the t est imony of
the wit nes se s , having obser ved t heir depo r t me n t and
ma nner of t est ifying. Appellat e court s will generally
not dist ur b the factual findings of t he t rial court unless it
has plainly overloo ked facts of subst ance and value wb' h,
if considered, might affect the result of the case (People
vs. Baao, G.R. No. 68574, July 7, 1986; People vs. Ibal,
G.R. Nos. 66010-12, July 31, 1986).
A s i m i lar rule is followed wit h r egar d to fact ual
findings of a d m i n i s t r at iv e t r ibu na l s or quasi- judic ia l
agenc ies. Wit hest a b l is he d except io ns, t he S upr eme
Court also accords respect, if not finalit y, to their factual
606
RUL E 44 O R D I N AR Y A P P E AL E D C A S E S SEC . 15
findings by reason of t heir special knowlege and expert ise

gained from their experience in specific mat ters under their
jurisdict ion (Manila Hotel Corp. vs. NLRC, et al., G.R.
No. 54353, Jan. 22, 1986; Ateneo de Manila vs. CA et al.,
G.R. No. 56180, Oct. 16, 1986; Phil. Overseas Drilling
and Oil Dev. Corp. vs. Minister of Labor, et al., G.R. No.
55703, Nov. 27, 1986; Soco vs. Mercantile Corp. of Davao,
et al, G.R. Nos. 53364-65, Mar. 16, 1987).
607
RUL E 4 5
AP P E AL B Y CE R T I O R AR I
T O THE S U P R E M E COURT
S ect io n 1. Filing of petition with Supreme Court. —

A p a r t y d e s i r i n g t o a p p e a l b y c e r t i o r a r i fro m a
j u d g m e n t , fina l o r d e r o r r e s o l u t i o n o f t he Co urt o f
Ta x A p p e a l s , t he R e g i o n a l T r ia l C o u r t s , o r ot he r
c o u r t s , w h e n e v e r a u t h o r i z e d b y law, ma y file wit h
t he S u p r e m e C o u r t a ver if ie d p e t it io n for r evie w o n
c e r t i o r a r i . The p e t it io n ma y i n c l u d e a n a p p l i c a t io n
fo r a w r i t o f p r e l i m i n a r y i n j u n c t i o n o r o t h e r
p r o v i s i o n a l r e m e d i e s an d sha l l r a is e onl y q u e s t io n s
o f law , w h i c h m u s t b e d i s t i n c t l y se t fo r t h . The
p e t i t i o n e r ma y see k t he sa m e p r o v i s i o n a l r e m e d i e s
b y v e r i f i e d m o t i o n file d i n t he s a m e a c t i o n o r
p r o c e e d i n g s a t an y t i m e d u r i n g it s p e n d e n c y .
(As amended
J
in A.M. No. 07-7-12-SC, effective
Dec. 27, 2007)
NOT E S
1. Appeals to the S upr eme Court are made only by

verified pet it ions for review on cert iorar i, except only in
appeals from judg me nt s of the Regional Trial Court in
c r i m i n a l cas e s w h e r e i n the p e na lt y i mpo sed i s life
i m p r i s o n m e n t or reclusion perpetua which sha l l be
elevated by ordinary appeal, or formerly, wherein the death
penalt y was imposed and was subject to automat ic review.
All ot her appeals to the Supreme Court can be t aken
from a judgment or final order or resolution of the Court
of Appeals, the S a nd iga nba ya n, the Regional Trial Court,
or such ot her court s as may be aut horized by law, only by
a verified pet it ion for review on cert iorari on quest ions of
law.
608
RUL E 45 A P P E AL B Y CE RTI OR ARI SEC . 1
T O TH E S U P R E M E C O U R T
2. The appeal under this Rule cont emplat es that the

Regional Trial Court rendered the judgment or final order
or resolut ion act ing in its original jur isdict io n. If it
r e nder e d t he sam e in the exer cise of its a p p e l l a t e
jurisdict ion, in the inst ances provided for in Rules 42 and
43, the appeal shall be t aken to the Court of Appeals even
if only quest ions of law are raised by the pet it ioner.
3. A quest ion of law exists when t here is a doubt or

controversy as to what the law is on a cert ain st at e of
facts, and t here is a quest ion of fact when the doubt or
difference ar ises as to the t r ut h or falsehood of facts
(Ramos vs. Pepsi-Cola Bottling Co., L-22533, Feb. 9, 1967;
Pilar Dev. Corp. vs. IAC, et al., G.R. No. 72283, Dec. 12,
1986). One t est is w het he r the appellat e court can
determine the issue raised without reviewing or evaluat ing
the evidence, in which case it is a quest io n of law;
otherwise, it will be a quest ion of fact. The question must
not involve the examinat ion of the probat ive value of the
evidence pr es e nt e d (Vda. de Arroyo vs. El Beaterio
del Santissimo Rosario de Molo, L-22005, May 3, 1968).
As dist inguished from a question of law which exists
when the doubt or difference arises as to what the law is
on a certain state of facts, there is a question of fact when
the doubt or difference ar ises as to the t r ut h or the
falsehood of alleged facts, or when the query necessarily
invit es calibrat io n of the whole evidence co nsider ing
mainly the credibility of witnesses, existence and relevancy
of specific surrounding circumstances, their relation to each
ot her and to the whole, and the probabilit ies of the
sit uat ion (Bernardo, et al. vs. CA, et al., G.R. No. 101680,
Dec. 7, 1992, and cases cited therein).
4. Whet her an appeal involves only questions of law
or both quest io ns of law and fact is best left to the
det erminat ion of an appellate court and not by the court
which rendered the decision appealed from (PNB vs.
Romillo, etc., et al., G.R. No. 70681, Oct. 16, 1985). When
609
the facts are undisput ed, the quest ion of whet her or not
the conclusion dr awn t herefrom by the Court of Appeals
is correct is a quest ion of law cognizable by t he Supreme
Court (Commissioner of Immigration vs. Garcia, L-28082,
June 28, 1974). However, all doubt s as to the correct ness
of such conclusions will be resolved in favor of the Court
of Appeals (Pilar Dev. Corp. vs. IAC, et al., supra).
5. As a rule, t he findings of fact of the Court of

Appeals are final and conclusive and cannot be reviewed
on appeal to the S upr eme Court (Amigo, et al. vs. Teves,
96 Phil. 252) provided t hey are borne out by the record
or ar e based on s u bs t a nt ia l evidence (Alsua-Betts vs.
CA, et al., L-46430-31, July 30, 1979). However, as
r ecap it u lat ed by t he Supr eme Court in Ramos, et al. vs.
Pepsi Cola Bottling Co., supra, and in its subsequent
rulings, findings of fact of t he Court of Appeals may be
reviewed by t he S upr e me Court on appeal by cert iorari -
(a) Whe n the co nc lu s io n is a find ing gro unded
ent irely on speculat ions, sur mises or conjectures (Joaquin
vs. Navarro, 93 Phil. 257);
(b) When the inference made is manifest ly mistaken,
absurd or impossible (Luna vs. Linatok, 74 Phil. 15);
(c) Where t her e is grave abuse of discret ion in the
appr eciat io n of facts (Buyco vs. People, 95 Phil. 453);
(d) Whe n the ju d g me n t is based on a misappr e•
hension of facts (De la Cruz vs. Sosing, et al., 94 Phil.
26);
(e) When the findings of fact of the Court of Appeals
are conflict ing (Casica, et al. vs. Villaseca, et al., 101 Phil.
1204 [Unrep.]);
(f) Whe n the Co ur t of App e a ls , in ma k i n g it s
findings, went beyond the issues of the case and the same
i s co nt r ar y to the a d m i s s io n s of bot h appe l la n t and
appellee (Evangelista vs. Alto Surety & Insurance Co., 103
610
RUL E 45 A P P E AL B Y CE RTI OR ARI SEC . 1
Phil. 401; Roque vs. Buan, G.R. No. 22459, Oct. 31, 1967;
Leonardo vs. CA, et al., G.R. No. 51263, Feb. 28, 1983;
Republic vs. CA, et al., G.R. No. 61647, Oct. 12, 1984;
Moran vs. CA, et al, G.R. No. 59956, Oct. 13, 1984;Nakpil
& Sons, et al. vs. CA, et al, G.R. No. 47851, Oct. 3, 1986);
(g) When t he Court of Appeals manifest ly over•
looked certain relevant facts not disputed by the part ies
and which, if properly considered, would justify a different
conclusion (Abellana vs. Dosdos, LI9498, Feb. 26, 1965;
Uytiepo vs. Aggabao, L-28671, Sept. 30, 1970; Carolina
Industries, Inc. vs. CMS Stock Brokerage, Inc., L-46908,
May 17, 1980); or
(h) Where the findings of fact of the Court of Appeals
are co nt r ar y to t hose of t he t r ial court, or are mere
conclusions wit hout citation of specific evidence, or where
the facts set forth by the pet it ioner are not disputed by
the respondent, or where the findings of fact of the Court
of Appeals are premised on absence of evidence but are
contradict ed by the evidence of record (Manero vs. CA,
et al, L-49542, Sept. 12, 1980; Ducusin vs. CA, et al,
G.R. No. 58286, May 16, 1983; Cesar vs. Sandiganbayan,
et al, G.R. Nos. 54719-50, Jan. 17, 1985; Sacay vs.
Sandiganbayan, et al, G.R. Nos. 66497-98, July 10,
1986; Manlapaz vs. CA, et al, G.R. No. 56589, Jan. 12,
1987).
6. Cert iorari as a mode of appeal under this Rule,

should be dist inguished from cert iorari as an original
specia l civil act io n (Rule 65), UNDE R t he following
considerat ions:
a. In appeal by cert iorari, the petit ion is based on
quest ions of law which the appellant desires the appellat e
court to resolve. In certiorari as an original action, the
petition raises the issue as to whether the lower court acted
wit hout or in excess of jurisdiction or with grave abuse of
discretion.
611
b. Cer t io r ar i , as a mode of appeal, involves the

review of the judgment , award or final order on the merits.
The original act ion for cert iorari may be directed against
an int er locut or y order of the court prior to appeal from
the judg me nt or where t here is no appeal or any other
plain, speedy or adequat e remedy.
c. Appeal by cert io rar i mus t be made wit hin the
r egleme nt ar y period for appeal. An original action for
cert iorar i may be filed not lat er t ha n sixty (60) days from
notice of the judg ment , order or resolut ion sought to be
assailed.
d. Appeal by cert iorar i st ays the judgment, award
or order appealed from. An original act ion for certiorari,
unless a writ of pr eliminar y injunct ion or a temporary
r est r aining order shall have been issued, does not stay
the challenged proceeding.
e. . In a p p e a l by c e r t i o r a r i , the p e t it i o ne r
and r espo ndent are the original part ies to the action, and
the lower court or quasi- judicial agency is not to be
impleaded. In cert ior ar i as an original act ion, the
part ies are the aggrieved part y against the lower court
or quasi-judicial ag e nc y an d t he p r e v a i l i n g p a r t i e s ,
who t he r e b y respect ively become the pet it io ner and
respondent s.
f. In cert iorari for purposes of appeal, the prior filing
of a mot ion for r eco nsider at io n is not required; while in
cert iorari as an original action, a motion for reconsideration
is a condit ion precedent , subject to cert ain except ions.
g. In appeal by cert iorar i, t he appellat e court is in
t he exercise of its appellat e jur isd ict ion and power of
review, while in cert iorar i as an original action, the higher
court exercises orig inal jur isd ict io n under its power of
cont rol and super vis io n over the proceedings of lower
court s.
The foregoing dist inct io ns set out in this book were
first adopt ed by t he S upr eme Court in Paa vs. CA, et al.
612
RUL E 45 A P P E A L BY C ER TIO R ARI SEC . 2
T O TH E S U P R E M E COURT
(G.R. No. 12560, Dec. 4, 1997); see also San Miguel Corp.,
et al. vs. Layos, Jr., et al, (G.R. No. 149640, Oct. 19, 2007).
7. The S upr eme Court can t r ea t a pet it ion filed
erroneously under Rule 65 as one filed under Rule 45 if
the pet it ioner had alleged grave abuse of discretion in said
petition under the following circumtances: (1) If the petition
was filed wit hin 15 days of notice of the judgment or final
order or resolut ion appealed from; or (2) If the petition is
meritorious (Hanjin Heavy Industries and Construction
Co., Ltd. vs. CA, et al, G.R. No. 167938, Feb. 19, 2009).
Sec. 2. Time for filing; extension. — The pet it io n

sha l l be filed w it h in fift een (15) day s from no t ic e of
t he j u d g m e n t o r final o r de r o r r e so lu t io n a p p e a l e d
from, or of t he de nia l of t he p et it io ne r ' s mo t io n for
ne w t r ia l o r r e c o n s i d e r a t i o n filed i n du e t im e aft er
no t ic e o f t he j u d g m e nt . O n mo t io n dul y filed an d
ser ved , wit h full p a y m e n t o f t he do cke t an d o t he r
law fu l fees an d t he d e p o s i t for co st s be fo r e t he
e xp i r a t io n o f t he r e g l e m e n t a r y per io d , the S u p r e m e
C o u r t ma y fo r j u s t i f i a b l e r e a s o n s g r a n t a n
e xt e ns io n of t h ir t y (30) day s o nly w it hin w hic h t o
file t he pet it io n , (la , 5a)
NOT E
1. The reglement ary period to appeal is 15 days from

ser vice of the ju d g me nt , final or der or r eso lut io n.
However, within t hat period, the aggrieved party may file
a motion for new trial or reconsiderat ion and, if denied,
he shall have the ent ire 15 days all over again from notice
of such denial wit hin which to file his petition for review
on certiorari in the Supreme Court.
In eit her case, within such 15-day period, he may for
good cause file a motion with the Supreme Court for
extension of time within which to file his petition for review
on certiorari, but he must within t hat period submit the
613
RUL E 45 R E M E D I A L LA W C O M P E N D I U M 8 EC . 3
requisite proof of service of such motion on the respondents,

pay the docket and ot her lawful fees in full, as well as
deposit the costs of suit.
It will be noted t hat this is a special procedure adopted
in the int er est of procedural due process and to afford
sufficient opport unit y to the appealing part y to file his
pet it ion for review on cert iorari which may very well be
his last chance for obt aining full appellat e review of his
case. The basic rule is t hat since the subject of motions
are only the incident s in a case, t here must first be a
pending case in the court wherein a motion on an incident
t her ein may be ent ert ained. Here, however, alt hough no
such main case is pending in t he S upr eme Court since a
pet it ion t herefor is still to be filed, the appealing party
may file, and t he S upr eme Court will e nt ert ain, such a
motion for ext ension of t ime.
Sec. 3. Docket and other lawful fees; proof of service

of petition. — Un les s he ha s t h e ret o fo r e don e so, the
p e t i t i o n e r sh all pa y the c o r r e s p o n d i n g d ocke t and
o t h e r l a w f u l fee s t o the c l e r k o f C o u rt o f the
S u p re m e Court an d d ep o si t the am ou n t o f P500.00 for
cost s a t the t i m e o f the fi ling o f the p e t i t i on. Proof of
se rvi c e of a cop y t h e re o f on the lowe r cou rt c o n c e r n e
d an d o n the a d v e r s e p a rt y s h a l l b e s u b m i t t e d
t o g e t h e r wit h the p et i t i on, ( la )
NO TES
1. The opening phrase "(u)nless he has t heretofore

done so" refers to the situat ion in the next preceding section
wherein a mot ion for ext ension of time to file the pet it ion
for review was filed, in which case the pet it io ner had
alr eady paid the docket and ot her lawful fees and made
the deposit for costs as requisit es therefor.
2. . Proof of ser vice of copies on the lower

court concerned, as the public respondent , and on the
adverse
614
RUL E 45 AP P E AL BY C ER TIO R AR I SEC . 4
part y, as the privat e respondent, in the manner provided

by Rule 13 shall be submitted together with the pet it ion;
ot herwise, the same shall be dismissed out right as was
the practice adopted by the Supreme Court pur suant to
revised Circular No. 1-88 and from which the present
r equir eme nt s were t aken. However, alt hough a copy of
the petition is served on the lower court concerned, it is
only for the purpose of giving notice t hat its judgment
should not be ent ered since it is not yet executory because
of the pending petit ion for review thereof. The lower
court does not, however, become a part y to the case since
Rule 45 provides a mode of appeal, as explained in the
following section.
Sec. 4. Contents of petition. — The pet it io n sha l l be

filed in e i g ht e e n (18) co pie s , wit h t he o r ig ina l copy
i n t e nd e d for t he Co urt be in g i nd ic a t e d a s suc h b y
t he p et it io ne r , an d shall (a) st at e the full na m e o f
t he a p p e a l i n g p a r t y a s t he p e t it i o n e r an d t he a d ve r s e
p a r t y a s r e s p o n d e n t , w it ho u t i m p l e a d i n g t he l o w e r
c o u r t s o r j u d g e s t h e r e o f e i t h e r a s p e t it io ne r s o r
r e s p o nd e nt s ; (b) ind icat e the mat er ia l dat e s s ho w in g
whe n not ice o f the j u d g m e n t o r final o r de r o r
r e s o l u t io n su bje c t t he r eo f wa s r ec e i ve d , whe n a
mo t io n for ne w t r ia l or r e c o ns i d e r a t io n , i f any , wa s
filed an d whe n not ice o f the denia l t her eo f wa s
r ec e i ve d ; (c) set fort h co nc ise l y a s t a t e me n t of the
m a t t e r s invo lved, an d the r e a s o n s o r a r g u m e n t s r elie d
on for the a l lo w a nc e of the pet it io n ; (d) be a c c o mp a n i e
d by a c le ar ly legible d u p l i c a t e o r ig ina l , or a cer t if ie d
t r u e copy of the j u d g m e n t or final o r de r or
r e s o lu t io n cert ified by the c ler k of Co ur t of the
Co urt a quo an d the r equ is it e nu m be r of pla in co pie s
t her eo f, an d suc h ma t e r ia l p o r t io n s o f the r e c o r d a s
w o u l d s u p p o r t t he p e t i t i o n ; an d
(e) c o nt a i n a s w o r n c e r t i f i c a t io n a g a i n s t fo r u m
s h o p p i n g a s p r o v i d e d i n t he las t p a r a g r a p h o f
sect io n 2 , Rul e 42. (2a)
615
NOT E S
1. The contents of the pet ition required in this section

have also t aken into account and included the provisions
of revised Circulars Nos. 1-88 and 28-91 of the Supreme
Court.
2. It is specifically st at ed t hat the pet it ion shall state

the full names of the part ies, "without impleading the lower
court s or judges thereof." This r esuscit at es the former
ho ld ing of the S u p r e me C o u r t t hat in an appeal by
cert io rar i UNDE R t his Rule, the court or the judge who
r ender ed the decision appealed from is not required to be
joined as a part y respo ndent . The only part ies t hereto
should be the appellant , as pet it ioner, and the appellee,
as respondent . It is in the special civil action of cert iorari
under Rule 65 where the court or judge is required to
be joined as a part y respondent (Metropolitan Waterworks
& Sewerage System vs. CA, et al., G.R. No. 54526,
Aug. 26, 1986; Phil. Global Communications, Inc. vs.
Relova, etc., et al, G.R. No. 60548, Nov. 10, 1986).
Sec. 5. Dismissal or denial of petition. — The

fa i lu r e o f t he p e t i t i o n e r t o co mp l y w it h an y o f t he
fo r e g o i n g r e q u i r e m e n t s r e g a r d i n g the p a y m e n t o f
t he d o c k e t an d o t he r law fu l fees, d e p o s i t for co st s ,
pr oo f o f s e r v i c e o f t he p e t it io n , an d the c o nt e nt s o f
an d t he d o c u m e n t s w h i c h s ho u l d a c c o m p a n y t he
p e t i t i o n s ha l l b e su f f ic ie n t g r o u n d for t he d is m i s s a l
t her eo f .
The S u p r e m e C o u r t ma y o n it s ow n i n it i a t i v e
d e n y t he p e t i t i o n o n t he g r o u n d t ha t t he a p p e a l i
s w i t h o u t me r it , o r i s p r o s e c u t e d m a n i f e s t l y for
de la y , o r t ha t t he q u e s t i o n s r a i s e d t h e r e i n ar e too
u n s u b s t a n t i a l t o r e q u i r e c o n s i d e r a t i o n . (3a)
Sec. 6. Review discretionary. — A r e vie w is no t a

m a t t e r o f r ig ht , bu t o f s o u n d ju d i c i a l d i s c r e t io n ,
616
RUL E 45 AP P E AL B Y C ER TI O R ARI S E C S . 7-8
T O TH E S U P R E M E COUR T
an d will b e g r a nt e d only w he n t her e ar e spec ia l an d

i m p o r t a n t r e a s o n s t he r e fo r . The fo ll owing, whil e
n e it h e r c o nt r o l l i n g no r fully m e a s u r i n g t he co u r t ' s
d i s c r e t i o n , i n d i c a t e t he c h a r a c t e r o f t he r e a s o n s
whic h will b e c o ns i d e r e d :
(a) W h e n t he C o u r t a quo ha s d e c i d e d a
q u e s t io n o f s u b s t a n c e , no t t he r e t o fo r e d e t e r m i n e d
by t he S u p r e m e Co ur t , or ha s dec id e d i t i n a wa y
p r o b a b l y no t i n a c c o r d w it h la w o r w it h t he
a p p l i c a b l e d e c i s io n s o f t he S u p r e m e Co urt ; o r
(b) Whe n t he Co ur t a quo ha s so far d e p a r t e d
fro m t he a c c e p t e d an d u s u a l c o u r s e o f j u d i c i a l
p r o c e e d i n g s , o r s o far s a n c t io ne d suc h d e p a r t u r e
by a lo we r co urt , as to call for an exer c is e of the po we
r of s u p e r vi s io n . (4a)
Sec. 7. Pleadings and documents that may be

required; sanctions. — Fo r p u r p o s e s of d e t e r m i n i n g
w he t h e r t he p et it io n sho u l d b e d is m i s se d o r denie d
p u r s u a n t t o s e ct io n 5 o f t hi s Rule , o r w he r e t he
pet it io n i s g iven du e co ur s e U N DE R sect io n 8
hereof, the S u p r e m e Co urt ma y r e q u ir e o r allow the
filing o f su c h p l e a d i n g s , br ie f s , m e m o r a n d a o r
d o c u • me nt s a s i t ma y dee m ne c e s s a r y w it hin suc h
per io d s an d U N D E R s u c h c o n d i t i o n s a s i t ma y
co nsid e r a p p r o p r i a t e , an d i m p o s e t he
c o r r e s p o n d i n g s a n c t i o n s i n cas e o f no n - f i l i n g o r
u n a u t h o r i z e d fil ing o f suc h p l e a d i n g s an d d o c u m e n t
s o r no n • c o mp l i a nc e wit h t he c o nd it i o n s t her e fo r ,
(n)
Sec. 8. Due course; elevation of records. — If t he

pet it io n i s given du e co ur se , the S u p r em e C o u r t ma y
r e q u ir e the e le va t io n o f t he co mp let e r eco r d o f the
case or specified par t s t her eo f w it hi n fift een (15)
day s from no t ice. (2a)
617
NOT E S
1. The first par agr aph of Sec. 5, as has already been

observed in connect ion wit h the ot her pet it ions filed in
the appellat e courts, adopted the provisions of revised
Cir cular No. 1-88 and r elat ed circulars issued by the
S upr eme Court.
The second par agr aph is relat ed to and is a conse•
quence of the provisio ns of Sec. 6 which underscores the
fact t hat appellat e review under this Rule is discret ionar y
and can be gr a nt e d only whe n t her e are special and
i mpo rt ant reasons therefor.
2. . P u r s u a n t to Sec. 7 , the S upr e me Court

may r equ ir e the filing of a co mment , reply, rejoinder
and sur r ejo inder when necessar y, as well as briefs,
memo• r anda or such ot her document s as it may deem
necessary for a full discussion and considerat ion of t he
issues on appeal. See, however, t he resolut ion of the
Court in A.M. No. 99-2-04-SC (Appendix R) limit ing t he
pleadings t hat may be filed aft er t he reply, and t he
procedure to be followed t hereaft er.
Sec. 9. Rule applicable to both civil and criminal

cases. — T he m o d e o f a p p e a l p r e s c r i b e d i n t hi s Rul
e s ha l l b e a p p l i c a b l e t o bot h civil an d c r i m i n a l c a se s ,
e xc e p t i n c r i m i n a l case s w he r e t he p e n a lt y i m p o s e d i
s d e a t h , reclusion perpetua or life im• p r i s o n m e n t , (n)
NOT E
1. See Note 1 under Sec. 1 of t his Rule, and Note 11

under Secs. 1 to 3, Rule 122.
618
RULE 46
ORIGINAL CASES
Section 1. Title of cases. — In all case s ori gi nally

filed in the Court of App eals, the party i n st i t u t i n g
the act i o n shall be called the p et i t i on e r and the
op p osi n g party the resp on d ent, (la)
Sec. 2. To what actions applicable. — Thi s Rul e

sh al l ap p l y t o o ri g i n a l a c t i o n s for c e r t i o r a r i ,
p roh ibi ti on, man d amu s and quo warrant o.
E xc e p t a s o t h e r w i s e p ro v i d e d , the a c t i o n s
for a n n u l m e n t of j u d gm en t - sh a l l be govern e d by
Rule 47, for certiorari, p rohib it ion and man d amu s
by Rule 65, and for quo warran to by Rule 66. (n)
NOTES
1. This rule formerly governed the cases which were

within the original jurisdict ion of the Court of Appeals,
i.e., pet it io ns for ma nda mus , prohibit io n, injunct io n,
cert iorar i, habeas corpus and other writs and processes in
aid of its appellat e jurisdict ion (Sec. 30, R.A. 296).
2. Under B.P. Blg. 129, the Int er mediat e Appellat e
Court (now, the Court of Appeals) has original jurisdic•
tion to issue writ s of mandamus, prohibition, cert iorari,
habeas corpus and quo warranto, and auxiliary writ s or
processes, whet her or not they are in aid of its appellate
jurisdict ion; and it has exclusive original jurisdict ion over
act ions for annu lme nt of judgment s of Regional Trial
Courts (Sec. 9; cf. Pars. 14 and 15, Interim or Transitional
Rules and Guidelines).
Pet it ions for habeas corpus have been excluded from
the coverage of the present revised Rule since they are
act ually special proceedings and the c o rr espo nd ing
619
procedural rules governing the same are provided for in

the Rules on special proceedings and in Sec. 3, Rule 41.
Sec. 3. Contents and filing of petition; effect of non•

compliance with requirements. — The p e t i t i o n shall
con t ai n the full n ame s and act u a l ad d re ss e s of all
the p e t i t i o n e r s an d r e s p o n d e n t s , a c o n c i s e
s t a t e m e n t o f the m a t t e r s i n v o l v e d , the fact u a l
b ac k g rou n d of the case, and the grou nd s relied upon
for the reli e f p raye d for.
I n a c t i o n s fi led U ND E R Rul e 65 , the p eti t i o n
sh all fu rt h er i n d i cat e the mat eri a l dat e s sh owi n g
w h e n n o t i c e o f the j u d g m e n t o r fina l ord e r o r
r e s o l u t i o n su b j e c t t h e r e o f wa s re c e i v e d , wh e n a
mot i o n for ne w trial or re c o n s i d e ra t i o n , i f any, was
fi led an d w h e n n ot i c e o f the d en i a l t h e re o f wa s
re ce i v ed .
I t sh al l be fi led in seve n (7) cle a rl y legi b l e
cop i e s t o g et h e r wit h p roof o f servi ce t h ereo f o n the
r e s p o n d e n t wit h the ori gi n a l cop y i nt en d e d for the
Cou rt i n d i c a t e d as suc h by the p et i ti on er, and shall
b e a c c o m p a n i e d b y a clea rl y legi bl e d up li c at e
ori gin al or cert i fied true copy of the ju d gmen t , order,
re s o l u t i o n , or ru li n g su b j ect thereof, suc h mat eri al
p o rt i o n of the reco r d as are referred to t h erei n , and
o t h e r d o c u m e n t s r e l e v a n t o r p e r t i n e n t t h e re t o .
The c e r t i f i c a t i o n s h a l l b e a c c o m p l i s h e d b y the
p ro p e r cl e r k o f Cou rt o r b y hi s d ul y a u t h o ri z e d
r e p r e s e n t a t i v e , o r b y the p ro p e r offi c e r o f the
cou rt , t ri b u n a l , a g e n c y or offi ce i n vo l ve d or by
hi s d u l y a u t h o r i z e d r e p r e s e n t a t i v e . The ot h e r
r e q u i s i t e n u m b e r o f c o p i e s o f the p e t i t i o n
s h a l l b e a c c o m p a n i e d b y c l e a r l y l e g i b l e p la i n
cop i e s of all d o c u m e n t s at t ach e d to the ori gi nal.
The p e t i t i on e r sh all als o su b mi t t oget h e r with
the p et i t i o n a swor n cert i fi cat i on that he has not
620
RUL E 46 ORIGINA L C AS E S SEC . 3
t he r e t o fo r e c o m m e n c e d an y o t he r act io n i n vo l v i n g
the sam e is sue s i n t he S u p r e me Co urt , t he Co ur t o f
App e a l s o r d if fe r e n t div is io n s t her eo f, o r an y o t he r
t r i b u n a l o r agenc y ; i f t her e i s suc h o t he r act io n o r
p r o c e e d i n g , h e mus t st at e the st at u s o f t he sa me ; an
d i f h e s ho u l d t h e r e a f t e r le a r n t ha t a s i m i l a r act io n
o r p r o c e e d i n g ha s bee n filed o r i s p e nd i n g before t he
S u p r e m e Co urt , the Co ur t o f App ea ls , o r differ e nt
d iv i s io n s t her eo f, o r an y ot he r t r i b u n a l o r a g e nc y , h e
u n d e r t a k e s t o p r o m p t l y i n f o r m t he a f o r e s a i d c o u r t s
an d o t h e r t r i b u n a l o r a g e n c y t he r eo f w it h in five (5)
day s t he r e fr o m .
The p e t i t i o n e r s ha l l pa y t he c o r r e s p o n d i n g
do cke t an d ot he r lawfu l fees t o the C le r k o f Co ur t an
d d e po s i t t he a m o u n t o f P500.00 for co st s a t t he t im e
of t he filing of the pet it io n .
The fa i lur e of the p et it io ne r t o co mply wit h an y o
f t he fo r e go i n g r e q u i r e m e n t s shal l b e su ffic ie nt
g r o u n d for t he d i s m i s s a l o f t he p e t i t i o n , (n ) (As
amended by Resolution of the Supreme Court, dated July
21, 1998)
NOTES
1. Jus t like the other pet it ions filed in appellat e

proceedings, the requirement s for original actions in the
appellat e court s were t aken from revised Cir cular s
Nos. 1-88 and 28-91, as well as Circular No. 19-91 of the
Supreme Court. It will again be observed that the original
copy of the petition intended for the court shall be marked
or indicated as such, since, among ot hers, it must be
accompanied by a clearly legible duplicate original or
certified true copy of the adjudicatory issuance complained
of whereas the other copies may be accompanied by only
plain copies thereof. If the original copy of the petition
intended for the court is accompanied by only plain copies
of said document s, the same may be dismissed outright.
621
2. However, in Balagtas Multi-Purpose Cooperative,

Inc., et al. vs. CA, et al. (G.R. 138520, Sept. 16, 1999)',
wher e the Co urt of Appea ls d is misse d a pet it io n for
cert io rar i for non-co mpliance wit h t he r equ ir e me nt of
Sec. 3 , Rule 46 , the S u p r e m e C o u r t set aside t hat
d is m is s a l . I t po int ed out t hat the issue before said
Court wa s w he t h e r the p e t it io ne r wa s exe mp t from
post ing bond, hence its failure to submit the complaint
and ot her document s ment ioned t herein were not materia l
or r elevant t her et o. Its financial st at eme nt was mat erial
to the issue of its exempt ion from post ing bond but the
same was subsequent ly filed t oget her wit h a motion for
r eco nsider at io n. This was su bst ant ial compliance with
Sec. 3, Rule 46 which should not be applied in a rigid
t echnical sense in the int erest of subst ant ial just ice.
a. In Paras, et al. vs. Baldado etc., et al. (G.R.
No. 140317, Mar. 8, 2001), the Supr eme Court also set
asid e the r e s o lu t io n of the Co urt of Appe a l s which
dismissed a pet it io n for cert ior ar i wher e the copies of
the challenged orders at t ached t her et o were not certified
by the clerk of court but only by a not ary public. The
S upr e me Court noted t hat duplicat e original copies of the
impugned orders were at t ached to one copy of the pet it ion,
and pet it io ner s subseque nt ly su bm it t ed duly cert ified
co pies t he r eo f i n t he i r mot io n for r e c o ns id e r a t io n .
I t accordingly held t hat t her e was subst ant ia l compliance
wit h the r ule s which, aft er all, are in the nat ur e of
tools for the at t a in me n t of just ice which would be denied
by undue resort to t echnicalit ies.
b. In Molina et al. vs. CA, et al. (G.R. No. 143156,
J a n . 13 , 2 0 0 3) , the S u p r e m e C o u r t s u s t a i n e d the
sufficiency of a cert iorar i pet it ion even if the copies of the
at t ached order failed to show the aut hor it y of the person
who certified the same, and the seal of the court t hereon
could not be ident ified. It explained t hat the pet it io ner s
did not have a hand in the pr epar at io n of said document s;
t hey only relied on the aut hor it y of the court personnel
622
RUL E 46 ORIGINA L C AS E S SE C . 3
and the presumpt ion of regular it y in their performance of

official duty. It also declared t hat the failure of pet it ioners
to att ach some relevant documents which do not touch on
public policy nor deprive the court of its aut hor it y or
adversely affect respondent s may be disregarded as, in
fact, the Supreme Court has repeat edly permit t ed such
lacking documents to be submitted to cure the defect.
c. In OSM Shipping Philippines, Inc. vs. NLRC,
et al. (G.R. No. 138193, Mar. 5, 2003), it was pointed out
t hat Sec. 3, Rule 46 does not require t hat all support ing
pap er s and do cu me nt s acco mp a nying a pet it io n be
duplicate originals or certified true copies. Even under
Rule 65, petit ions are required to be accompanied only by
duplicate originals or certified true copies of the questioned
judgment, order or resolut ion. Other relevant document s
and p lead ings at t ache d to i t may be mere machine
copies thereof.
d. In NYK International Knitwear Corporation
Philippines, et al. vs. NLRC, et al. (G.R. No. 146267,
Feb. 17, 2003), the Supreme Court was const rained to
explain t he mea ning of a "certified t rue copy" of the
judgment, order or resolution required to be att ached to
the p et it io n s UNDE R d is c u s s io n . Ad ve r t i n g t o its
Administ rat ive Circular No. 3-96 which was the precursor
of the present revised rules of civil procedure, it declared
t hat the cert ified t rue copy shall be such ot her copy
furnished to a party at his instance or in his behalf, by
the authorized officers or represent at ives of the issuing
ent it y. That certified true copy must comply with all the
regulat ions therefor of the issuing ent it y and it is the
authenticated original of such certified true copy, and not
a mere xerox copy thereof, which shall be attached as an
annex to the petition or other init iatory pleading.
3. The lack of certification against forum shopping

is generally not curable by the submission thereof after
the filing of a petit ion. In exceptional circumst ances,
623
however, such as t he filing of the cert ificat ion a day after

but wit hin the r egle ment ar y period for filing such petition,
the belat ed filing was allowed as a subst ant ial compliance.
While the filing of the cert ificat ion is mandat or y, still the
r equir eme nt must not be int erpret ed too lit erally (Ship-
side, Inc. vs. CA, et al., G.R. No. 143377, Feb. 20, 2001).
4. . Wher e the r ea l p ar t y in i nt e r e s t i s a
body corporate, just like in ot her pleadings earlier
discussed, an officer of the corporat ion can sign the
certificate against forum shopping, bu t he must be duly
aut hor ized by a resolut ion of the board of directors
(Eslaban, Jr., etc. vs. Vda. de Onorio, G.R. No. 146062,
June 28, 2001).
5. The deposit for costs is required to be made upon

the filing of the complaint , unlike the pr esent practice
wher ein costs are required upon notice after the petit ion
is given due course.
Sec. 4. Jurisdiction over person of respondent, how

acquired. — The C o u r t s ha l l a c q u i r e j u r i s d i c t i o n
o ve r t he p e r s o n o f t he r e s p o n d e n t b y t he ser vic e o n
hi m o f it s o r d e r o r r e s o l u t i o n i n d i c a t i n g it s in it ia l
a c t i o n o n t he p e t i t i o n o r b y hi s v o l u n t a r y
s u b m i s s i o n t o suc h j u r i s d i c t i o n , (n)
Sec. 5. Action by the court. — The C o u r t ma y

d i s m i s s t he p e t i t i o n o u t r i g h t wit h spec if ic r e a s o n s
for suc h d i s m i s s a l o r r e q u i r e t he r e s p o n d e n t t o file
a c o m m e n t o n t he s a m e w it h i n t e n (10) day s from
no t ic e . Onl y p l e a d i n g s r e q u i r e d b y t he Co ur t shal l
b e a l lo w e d . All o t he r p l e a d i n g s an d p a p e r s ma y b e
filed onl y w it h lea v e o f c o u r t , (n)
NOT E S
1. These new sect ions of t his revised Rule have been

dict at ed by the change of procedure. The court, of course,
624
RULE 46 ORIGINAL CASES SEC. 7
acquires jurisdict ion over the petit ioner by his filing of

the petit ion but, while a copy thereof is required to be
served on the respondent prior to or simult aneously wi t h
the filing of the petition with the court, it is only upon the
service on the lat t er of the order or resolution indicat ing
the court's init ial action on the petition that jurisdict io n
over the respondent is obtained, unless he volunt arily
submit s to the court's jurisdict ion.
The reason for this is that, aside from the fact t hat no
su mmo ns or ot her coercive process is ser ved on the
respondent, his response to the petit ion will depend on
the init ial action of the court thereon. Under Sec. 5, the
court may dismiss the petition outright, hence no reaction
is expected from the respondent and, under the policy
adopt ed in t his Rule, he is not deemed to have been
brought wit hin the court's jurisdict ion unt il after service
on him of the dismissal order or resolution.
Should the petition appear to have complied with the
requir ement s in the next preceding section and the court
considers the issue raised worthy of judicial consideration,
it will require only a comment init ially and any other
pleading filed by the part ies without leave of court will
not be allowed. Such unaut horized pleadings may eit her
be noted without action or expunged from the record.
S e c . 6. Determination of factual issues. — W h e n •

e ve r n e c e s s a r y t o r e s ol v e fac tua l i s s u e s , the C o u r t
i t s e l f ma y c o n d u c t h e a r i n g s t h e r e o n o r d e l e g a t e the
r e c e p t i o n o f the e v i d e n c e o n s u c h i s s u e s t o an y o f
it s m e m b e r s o r t o a n a p p r o p r i a t e court , a g e n c y o r
o f f i c e , (n )
NOTE S
1. For the resolut ion of factual issues raised in

original pet it ions, the Court of Appeals is granted the
options provided by this section.
625
In the S upr eme Court, wherein factual issues are

generally not involved since it is not a trier of facts, this
section is not of equivalent significance. However, there
may be inst ances wher ein an appeal t aken to the Supreme
Court ost ensibly on quest ions of law may actually involve
the prior resolut ion of factual issues, in which case the
S upr eme Court may dispose of such improper appeal in
accordance wit h the provisions of Sec. 6, Rule 56.
2. . There are also inst ances where the factual

issue raised in a direct appeal to the S upr eme Court
may not involve a complicat ed sit uat ion nor ent ail the
introduct ion of evidence for its clarification. In such
cases, the part ies may be requir ed to submit the
corresponding pleadings wit h the ramificat ion desired by
the Court or the case may be scheduled for limit ed oral
ar gu me nt before the Court en banc or in division on
specified issues.
Sec. 7. Effect of failure to file comment. — When

no c o m m e n t i s filed by an y of the re s p o n d en t s , the
cas e ma y b e d e c i d e d o n the b asi s o f the reco rd ,
w i t h ou t p rej u d i c e t o an y d i sc i p l i n a r y act i o n wh i c h
the Cou rt ma y tak e a gai n s t the d i s ob e d i e n t party,
(n)
NOT E
1. The failure of the respondent to file the required

co mment does not result in a sanct ion similar to default s
in the t rial courts since the appellat e court may just decide
the case on the basis of the record before it, specifically
the pet it ion and its at t achme nt s but sans the comment or
any r epr ese nt at io n in behalf of the respondent .
On the ot her hand, where the court believes, eit her

in the int er est of subst ant ial just ice, or t hat the case could
be just ly resolved only wit h revelatory dat a which may be
obt ained from the respondent , or t hat his counsel is not
626
RUL E 4 6 O R I G I N A L C AS E S SE C . 7
acting with due diligence or competence in protect ing the

respondent ' s int erest , it may require the submission of
such co mme n t UNDE R pain of sanct io ns for ind ir e ct
contempt.
627
RULE 47
A N N U L M E N T OF JUDG M E NT S OR
FINAL O RDERS AN D RES O LUTIO NS
S ect i on 1. Coverage. — This Rule shall govern

the an n u l m e n t by the Court of Ap p eal s of j u d gm en t s
or final ord er s an d re s o l u t i o n s in ci vi l acti on s of
R e g i o n a l T ri a l C o u r t s for w h i c h the o rd i n a r y
re m e d i e s of ne w trial, ap peal , p et it io n for relief or
oth e r a p p ro p ri a t e re m e d i e s are n o lon ger avai lab le
t h ro u g h no fault of the p et i t i on e r , (n)
NO TES
1. A n nu l m e nt of a ju dg me n t is a r emedy in law
independent of the case where the judg ment sought to be
annulled was r ender ed. The judgment may be annulled
on the ground of extrinsic or collat eral fraud. A person
who is not a part y to the ju d g me n t may sue for its
a n nu l m e nt pro vided he can prove t hat t he same was
obt ained t hr o ugh fraud or collusion and t hat he would be
adversely affected t hereby. An action for annu l me nt of
judg me nt may be availed of even if the judgme nt to be
annulled had already been fully execut ed or imp lement ed
(Islamic Da'Wah Council of the Phil. vs. CA, et al., G.R.
No. 80892, Sept. 29, 1989).
I t should also be o bser ved t hat , as has been the
accepted doctrine and now expressly st ated in Sec. 2 of
t hi s Rule, lack of ju r i s d ic t io n i s the second ground
aut hor ized for annu l me nt of judgment s or final orders and
reso lut io ns.
2. Alt hough t his is a new Rule, actually t he annul•

men t of ju d g m e nt s is a r emedy long aut ho r iz e d and
sanct ioned in our jur isdict io n. See the discussion in Note
8 under Sec. 1, Rule 39 on the jur ispr ude nt ia l doctrines
628
RUL E 4 7 AN NU LM E N T O F J UD GM ENT S OR SEC . 2
F I N A L O R D E R S AN D R E S O L U T I O N S
heretofore laid down regarding this remedy, and which

have been considered for purposes of the present Rule,
with modifications. See also Sec. 19(2), B.P. Blg. 129
which is the jurisdict ional basis for this Rule.
3. One import ant condit ion for the availment of this

remedy is t hat the pet it ioner failed to move for new tria l
in, or appeal from, or file a petition for relief against, or
take other appropr iat e remedies assailing the quest ioned
judg ment or final order or resolut ion t hrough no fault
att ribut able to him. If he failed to avail of those other
remedies wit hout sufficient just ification, he cannot resort
to the act ion for a nnu l m e nt provided in t his Rule,
ot herwise he would benefit from his own inact ion or
negligence.
Sec. 2. Grounds for annulment. — The a n n u l m e n t ma

y b e ba se d only o n t he g r o u n d s o f e xt r in s i c fr au d an d
lac k of ju r is d i c t io n .
E xt r i ns i c fr au d shal l no t be a valid g r o u n d i f i t
wa s a va i le d of, or could hav e bee n ava ile d of, in a
mo t io n for ne w t r ia l or pet it io n for relief, (n)
NOTES
1. Refer to the discussion in Note 8 under Sec. 1,

Rule 37 on the concept of extrinsic, as dist inguished from
intrinsic, fraud. Intrinsic fraud, which is found in the
cause of action or the matt er put in issue and presented
for adjud ic at io n, is not a ground for a n nu l m e nt of
judgment, even if the correctness of such judgment has
been affected by t he mist ake n reliance on the fact
co nst it ut ing an int rinsic fraud, since the mat t er was
brought to the attent ion of the court and the part ies, and
could have been the subject of t heir co r r espo nd ing
submiss io ns, object ions or evaluat io n. Extrinsic or
collateral fraud, on the other hand, was not revealed to
629
RUL E 47 R E M E D I A L LAW COM PENDIU M SEC. 2
or was even deliberately suppressed from the opposing

part y and the court, hence relief u nder t his Rule is
available subject to certain condit ions.
2. The other ground for annulment of judgment s or
final orders and resolut ions is lack of jurisdict ion on the
part of the court which adjudicated the case. This refers
to e it he r lack of jur isd ict io n over the per so n of the
defending part y or over the subject -matt er of the claim,
since in e it her case the judg me nt or final order and
resolut ion are void. See Sec. 1(a) and (b), Rule 16 and
Notes 7 to 9 t hereunder.
3. The second p a r a gr a p h of t his sect ion put s a

condit ion upon the invocat ion of extrinsic fraud as a
ground for the annu lment sought. Indeed, if such ground
had really been availed of by the part y in a motion for
new trial or petit ion for relief in the original court and
was rejected wit h finalit y, he should not be permitt ed
ano t her chance on the same ground which had been
concluded by the adjudicat ion of the case thereon. If, on
the other hand, he did not avail himself thereof, then he
must suffer the consequences of his implied waiver.
4. The defining role of this section was illust rat ed in
Ancheta vs. Ancheta (G.R. No. 145370, Mar. 4, 2004), a
saga of legal errors involving estranged spouses as the
part ies. The t herein respondent husband had filed an
action in the trial court for the annulment of t heir marriage
due to psychological incapacit y of his wife; he deliberately
alleged in the complaint a wrong resident ial address for
the defendant wife; the sheriff served the summons on
the wrong person t hrough a wrong mode of subst it ut ed
service; for failure to answer, the wife was declared in
default; the public prosecutor assigned to the case did not
raise any objection to the proceedings; and the trial court
rendered a so-called order declaring the marriage null and
void ab initio.
630
RUL E 47 A N N U L M E N T OF J U D G M E N T S OR SEC . 3
Much later, the wife filed a petition under Rule 47

in the Court of Appeals to nullify the final order of
the lower court on the ground of extrinsic fraud and lack
of jur isdict ion over her person. She also alleged in an
amended pet it ion t hat she did not avail herself of the
remedies of new trial, appeal or petit ion for relief from
judgment . The appellat e court dismissed the petition on
the ground t hat pet it ioner failed to explain why she did
not comply wit h the condition precedent of first resorting
to the aforestated remedies or t hat the same were no longer
available t hrough no fault of her own.
The Supreme Court sustained the Court of Appeals
on this point since a part y must justify the failure to avail
of such remedies in order to avoid abuse of the remedy
provided by Rule 47. However, the latt er court erred in
dismissing the petition since it was also grounded on lack
of jurisdict ion. A judgment or final order issued wit hout
jurisdict ion is null and void and may be assailed anyt ime
wit hout complying with the pre-condit ions in Rule 47,
hence t he said final order was reversed and the case
r e ma nd e d to the Court of Appea ls for a p p r o p r ia t e
proceedings.
5. . Alt ho ug h Sec. 2 of t hi s Rule pr o vide s
t hat annulme nt of a judgment or order of a Regional
Trial Court may be based only on the grounds of extrinsic
fraud and lack of jurisdiction, jur isprudence recognizes
denial of due process as an addit ional ground (Spouses
Gorgonio Benatiro, etc., et al. vs. Heirs of Evaristo
Cuyos, et al.,
G.R. No. 161220, July 30, 2008, and cases therein cited).
Sec. 3. Period for filing action. — If b ase d on
ext ri n si c fraud, the action must be filed within four
(4) years from its discovery; and if based on lack of
juri sdiction, before it is barred by laches or estoppel,
(n)
631
RUL E 47 R E M E D I A L LAW COM PENDIU M SEC . 4
NOTE S
1. The period for the filing of the action on the ground

of extrinsic fraud corresponds to the same period for
annulment of contracts on t hat ground (Art. 1371, Civil
Code), as well as the time when the period st art s to run.
2. The defense of lack of jur isdict ion may be barred
by laches or estoppel. While there are several definitions
of laches, a simple expression of its concept is t hat it is
such inexcusable delay in t he assert ion of r ight s or a
failure to prosecute a claim, within a reasonable and proper
period, which war r ant s the presumpt ion t hat a party has
waived his right (see Winget vs. Rockwood, 69 F. 2d 326,
332; Burton vs. Ryan, 88 Ind. App. 549, 165 N.E. 260;
Harrison vs. Miller, 124 W. Va. 550, 21 S.E. 2d 674).
For procedural purposes, the estoppel referred to
here is actually estoppel by laches, which is t hat failure
to do so met hing which should be done or to claim or
enforce a right at a proper time [Hutchinson vs. Kenny,
27 F. 2d 254] or a neglect to do somet hing which one should
do or to seek or enforce a right at a proper time /Jet t vs.
Jett, 171 Ky. 548, 188 S.W. 669] (Black's Law Dictionary,
4thed., 1017). See Note 17, et seq. in t he Gener a l
Principles of this volume discussing the cases decided by
the Supr eme Court barr ing at t acks raised against the
jurisdict ion of lower courts where the complaining part y
was guilty of estoppel by laches.
Sec. 4. Filing and contents of petition. — The act io n

sha l l be c o m m e n c e d by filing a ver i f ie d p et it io n
a l le g in g t he r e i n wit h p a r t i c u l a r i t y t he fact s an d t he
la w r e l ie d upo n for a n n u l m e n t , a s well a s t ho s e
s u p p o r t i n g t he p e t i t i o n e r ' s good an d s u b s t a n t i a l
caus e o f act io n o r defe nse , a s t he cas e ma y be.
The pet it io n sha l l be filed in seve n (7) clear l y
l e g i b l e c o p i e s , t o g e t h e r wit h s u f f i c i e n t c o p i e s
632
RUL E 4 7 A N N U L M E N T OF J U D G M E N T S OR SE C . 4
c o r r e s p o n d i n g t o t he n u m b e r o f r e s p o n d e n t s . A
cer t ifie d t r u e cop y o f the j u d g m e n t o r final o r d e r o r
r e s o l u t io n sha l l b e a t t a c he d t o the o r ig ina l copy o f
the p e t it io n i nt e n d e d for the Co urt an d i nd i c a t e d a s
suc h b y the p e t it io ne r .
The p e t it io n e r sha l l also su b m i t t o g e t h e r wit h
t he p et it io n aff ida vit s o f w it ne s s e s o r d o c u m e n t s
s u p p o r t i n g t he c a u s e o f act io n o r de fe ns e an d a
s w o r n c e r t i f i c a t i o n t ha t h e ha s no t t h e r e t o f o r e
c o m m e n c e d an y o t he r act io n i n vo l v i n g t he sam e
is sue s i n t he S u p r e m e Co ur t , t he Co ur t o f Ap pe a l s
o r d if fe r e n t d iv is io n s t her eo f, o r an y o t he r t r i b u n a l
o r a g e n c y ; i f t h e r e i s suc h o t h e r a c t io n o r
p r o c e e d i n g , h e mus t st at e the st at u s o f t he sa me , an
d i f h e s ho u l d t h e r e a f t e r le ar n t hat a s i m i l a r act io n
o r p r o c e e d i n g ha s bee n filed o r i s p e nd i n g before the
S u p r e m e Co ur t , the Co urt o f Appea ls , o r dif fer e nt
d iv is io n s t her eo f, o r an y o t he r t r i b u n a l o r a g e nc y , h e
u n d e r t a k e s t o p r o m p t l y i n fo r m t he a f o r e s a i d c o u r t s
an d o t he r t r i b u n a l o r a g e n c y t he r e o f w it h in five (5 )
day s t her e fr o m , (n)
NOTES
1. Just like motions for new trial and pet it ions for
relief from judgment, the verified petition for annulment
under this section must state with part icularit y the facts
and law s u st a in i n g the ground t herefor, and t hose
support ing the petit ioner's good and subst ant ial cause of
act io n or defe nse. The fir st i s t he fu nd a m e nt a l
requirement , but the second is just as important in order
to convince the court t hat somet hing may indeed be
achieved should the petit ion be given due course. This
second r e qu ir e me n t must fur t her be suppo r t e d by
affidavits or documents showing, at least prima facie, the
validity of pet it ioner's claim.
633
RUL E 47 REMEDIA L LAW C O M PEN DIU M SECS . 5 6
2. The last par agraph also requires the submission

of a sworn certification against forum shopping already
discussed in the preceding Rules.
Sec. 5. Action by the court. — S h ou l d the court

find no sub st an t i al merit in the p etit ion, the same
may be d i sm i s s e d ou t ri gh t wit h specific reason s for
suc h d i smi ssal.
S h o u l d prima facie me ri t be fou n d in the

p et i t i on, the same shall be gi ve n due cou rse, and
su m m on s shall be served on the resp on d en t , (n)
Sec. 6. Procedure. — The p roc ed u re in ordinary

ci vi l case s sh al l be ob s e rv e d . S h ou l d a trial be
n e c e s s a ry , the re c e p t i o n o f the e v i d e n c e ma y b e
referred to a memb e r of the cou rt or a j ud g e of a
Regi on al Trial Court, (n)
NOTES
1. In effect, and just like the procedure in pet it ions

for relief under Rule 38, Sec. 5 of this Rule cont emplat es
two stages, t hat is, a preliminar y evaluat ion of the petition
for prima facie mer it t her e in and, in the affirmat ive,
the issuance of summo ns as in ordinary civil cases and
such appropriat e proceedings t hereaft er as cont emplat ed
in Sec. 6.
2. Taken alt oget her, t herefore, the act ion may be

dismissed outright if the init iatory pet it ion itself reveals
lack of mer i t from the very alle gat io ns t hereof; or,
t hereaft er dur ing the preliminar y evaluat ion after the
first st age of t he hear ing, the same may likewise be
d is m i s s e d upon c o ns id e r a t io n of the evide nce and
ar gument s adduced therefor.
634
RUL E 4 7 AN NU LM E N T O F J UD GM ENT S OR SEC . 7
Sec. 7. Effect of judgment. — A j u d g m e n t of

a n n u l m e n t shall set aside the q u est i on ed j u d gmen t
or final order or resolut ion and render the same null
and void, wi t h ou t prejudice to the ori gin al action
bein g refi led in the proper court. H owever, wh er e
the j u d gmen t or final order or resolu tion is set asid e
on the groun d of ext ri n si c fraud, the cou rt may on
mot ion order the trial cou rt to try the case as i f a
t i m e l y m o t i o n for ne w t ri al ha d b ee n g ra n t e d
t h erei n , (n)
NOTES
1. Where the quest ioned judgment , final order or

resolut ion is annulled, eit her on the ground of extrinsic
fraud or lack of jurisdict ion, the same shall be set aside
and considered null and void. Thereafter, as provided in
the first sentence of this section which more properly refers
to annulment on the ground of lack of jurisdict ion, the
aggrieved part y may refile the action in the proper court.
This may involve a different court of competent jurisdiction
in the instance where the judgment in the original action
is annulled because the court which rendered t he same
had no jur isd ict io n over the subject -mat t er. Where,
however, the reason for such annulment was because of
lack of jurisdict ion over the defendant, the action may be
refiled in the sam e o r ig ina l co urt provided i t ha s
jurisdict ion over the subject-matter and is the court of
proper venue or no issue on venue is raised.
2. Where the a nnu lme nt was based on extrinsic
fraud co mmit t ed by t he offending part y, the second
sentence of this section provides an alt ernative procedure.
On motion of the prevailing part y on justifiable grounds,
he may be allowed to no longer refile the action and the
trial court which rendered the questioned judgment shall
be ordered to try the case anew as if a timely motion for
new trial had been granted therein. The difference lies
635
RUL E 47 R E M E D I A L LAW C O M PEN D IU M SE C S . 8-9
in the fact t hat its original judgment was not tainted by

jurisdict ional defects, but by the deception which resulted
in prejudicial errors t herein.
Sec. 8. Suspension of prescriptive period. — The

p r e s c r i p t i v e per io d for t he r efil ing of t he a fo r esa id
o r i g i n a l a ct io n sha l l b e d e e me d s u s p e n d e d from
the filing o f suc h o r ig i na l act io n u nt i l t he fina lit y o
f t he j u d g m e n t o f a n n u l m e n t . H o w e v e r , t he
p r e s c r i p t i v e per io d sha l l no t b e s u s p e nd e d wher e
the e xt r in s i c fr au d i s a t t r i b u t a b l e t o the p la int iff i n
the o r ig ina l act io n , (n)
NOT E
1. For purposes of comput ing the prescript ive period

within which the same original action may be refiled as
authorized in the next preceeding section, the prescriptive
period provided by law for such type of action must first
be considered. From t hat period shall be deducted the
length of time which t ranspir ed from the date when the
action was originally filed in the t ria l court up to the
finality of the judgment which event ually annulled the
quest ioned judgment of t hat trial court. The result ing
balance of the prescript ive period may t hen be availed of
by the aggrieved part y for the refiling of the same action.
However, if the extrinsic fraud which resulted in the
annulment of judgment of the trial court is att ribut able to
the plaintiff in the original action, the suspension of the
prescript ive period aut horized in this section will not apply.
Sec. 9. Relief available. — T he j u d g m e n t of

a n n u l m e n t ma y i n c l u d e t he a w a r d o f d a m a g e s ,
a t t o r ne y' s fees an d ot he r relief.
I f t he q u e s t i o n e d j u d g m e n t o r final o r de r o r
r e s o l u t i o n ha d a lr e a d y bee n e x e c u t e d , t he Co urt
ma y issu e suc h o r d er s o f r e s t it u t io n o r ot he r relief
636
RULE 47 ANNULMENT OF JUDGMENTS OR SEC. 10
FINAL ORDERS AND RESOLUTIONS
a s j u s t i c e an d e q u i t y ma y w a r r a n t U N D E R t he
c i r c u m s t a n c e s , (n)
NOT E
1. Orders of rest it ut ion or reparat ion of damages are

authorized to be issued by the trial court where an executed
judgment is reversed totally or part ially, or annulled on
appeal or otherwise (Sec. 5, Rule 39). If rest it ut ion can
no longer be effected, the relief may be in the form of
co mpe nsat io n UNDE R the same formula suggest ed in
Po Pauco vs. Tan Juco (49 Phil. 349), cited under the
aforesaid section of Rule 39.
Sec. 10. Annulment of judgments or final orders of

Municipal Trial Courts. — An a c t i o n to a n n u l a
j u d g m e n t or final o r d e r of a M u n ic i p a l T r ia l Co urt
sha l l b e filed i n the R eg io na l T r ia l Co urt ha v i n g
j u r i s d i c t io n ove r the fo r mer . I t shall b e t r e a t e d a s
an o r d i n a r y civil act io n an d sect io n s 2 , 3 , 4 , 7 , 8 an d
9 of t hi s Rul e sha l l be a p p l i c a b l e t he r e t o , (n)
NOT E
1. Sec. 19(6), in relation to Sec. 9(2), both of B.P. Blg. 129, is consider
power of the Regional Trial Courts to annul the judgment s
or final orders of the lower courts.
637
RULE 48
P RE LI MI N AR Y C O N F E R E N C E
S ect io n 1. Preliminary conference. — At an y t ime

d u r i n g t he p e n d e n c y of a case , the Co ur t ma y call
t he p a r t i e s an d t h e i r c o u n s e l t o a p r e l i m i n a r y
c o n f e r e nc e :
(a) To c o ns i d e r t he po ss i b i l it y o f an a m ic a bl e
s e t t le m e nt , excep t whe n t he cas e i s no t allo we d b y
law t o b e c o mp r o m i s e d ;
(b) To define , simp lif y an d clar ify t he issues
for d e t e r m i n a t i o n ;
(c) T o f o r m u l a t e s t i p u l a t i o n s o f fact s an d
a d m i s s i o n s o f d o c u m e n t a r y e x h i b i t s , li m i t t he
n u m b e r o f w it ne s s e s t o b e p r e s e nt e d i n ca se s falling
w i t h i n t he o r i g i n a l j u r i s d i c t i o n o f the c o ur t , o r
t ho s e w i t h i n it s a p p e l l a t e j u r i s d i c t i o n w h e r e a
mo t io n for ne w t r ia l i s g r a n t e d o n t he gr o u n d o f newl
y d i s c o v e r e d e v id e nc e ; an d
(d) T o t ak e u p suc h o t he r ma t t e r s whic h ma y
aid t he Co ur t i n t he p r o m p t d is p o s it io n o f t he case.
( Rule 7 , CA I n t e r n a l Ru le s ) (n)
Sec. 2. Record of the conference. — The p r o ce e d ing s a

t suc h c o nfe r e nc e sha l l b e r e c o r d e d an d upo n the
c o n c l u s i o n t he r eo f , a r e s o l u t i o n sha l l b e is su e d
e m b o d y i n g al l t he a c t i o n s t a k e n t h e r e i n , t he
s t ip u l a t io n s an d a d m i s s io n s ma d e , an d the issues
de fined, (n)
Sec. 3. Binding effect of the results of the conference-

- S ubje c t to suc h mo d i f ic at io n whic h ma y be mad e
t o p r e v e n t ma n i fe s t in ju st ic e , t he r e s o lu t io n i n the
p r e c e d i n g s e c t io n s ha l l c o nt r o l t he s u b s e q u e n t
638
RUL E 48 P R E L I M I N AR Y C O N F E R E N C E SEC . 3
p roce ed i n g s in the case un less, wi thin five (5) days

from n oti ce thereof, any party shall sati sfact ori ly
sh o w vali d c au s e wh y the sam e s h o u l d no t b e
followed, (n)
NOTE S
1. These new Rule has adopted most of the grounds

for pre-trial in t he trial courts and with virtually the same
objective, t hat is , to explore and utilize all such appropriate
means as may assist in the early disposition of the case.
The minor difference is t hat in the Court of Appeals, this
procedural device may be availed of not only in original
actions but also in cases on appeal wherein a new trial
was grant ed on the ground of newly discovered evidence.
It will be recalled t hat the Court of Appeals can act as a
trier of facts, hence the preliminar y conference authorized
by t his Rule is a convenient adjunct to such power and
function.
2. The provisions of Secs. 2 and 3 regarding t he

record of t he proceedings and bind ing effect of t he
resolut ion embodying the result s of the conference are
virt ually t he same as those provided for in pr e-t r ial
conferences in civil cases in the trial courts.
3. . While i t may ap pe a r t hat the
p r e l i m i n a r y conference is init iated by a call for t hat
purpose by the court, it is not prohibited or improper for
eit her or both of the part ies to suggest the same to the
court on motion and for valid reasons.
639
RUL E 49
ORAL ARGU ME N T
S ect io n 1. When allowed. — At its ow n inst a nc e

o r upo n mo t io n o f a par t y , t he Co ur t ma y he a r the
p a r t ie s in ora l a r g u m e n t on t he me r it s of a case , or
o n an y m a t e r i a l i n c i d e n t i n co nne c t io n t here •
wit h , (n)
The o r a l a r g u m e n t sha l l b e l i m it e d t o suc h
m a t t e r s a s t he C o u r t ma y spec i f y i n it s o r d e r o r
r e s o lu t io n , ( la , R48)
Sec. 2. Conduct of oral argument. — U n le s s

a u t h o r i z e d b y t he c o u r t , o nl y on e c o u n s e l ma y
a r g u e for a par t y . The d u r a t i o n a llo w e d for eac h
par t y , t he s e q u e n c e o f t he a r g u m e n t a t i o n , an d all
o t he r r e l a t e d m a t t e r s sha l l b e a s d i r e c t e d b y the
co urt , (n)
NOT E S
1. This Rule was t aken from a section each of former

Rules 48 and 49. The regulatory details for oral argument
as provided for in the former Rule 48 have been eliminated
as i t was deemed bet t er to leave such mat t er s to the
discret ion of the court on a case to case basis as the
circumst ances and nat ure of the issues may require.
2. While Sec. 4 of t hen Rule 48, which provided t hat
a memorandum may be submit t ed by a part y in lieu of
part icipat ing at the hearing, has been eliminat ed in this
new rule, the court may still allow the submission of
memoranda in lieu of or in addit ion to the ar gument s
adduced at the hearing. However, Sec. 8 of t hat former
Rule with its except ional requir ement for the presence of
the detained person in habeas corpus cases on appeal, both
640
RUL E 49 O RA L A R G U M E N T
at the oral argument and at the rendit ion of the judgment

therein, has not been reproduced since part ies to a case
on appeal are not required to personally appear in the
appellate court.
Sec. 3. No hearing or oral argument for motions. —

Mot io n s sha l l no t b e set for he a r i n g and , u nle s s t he
Co urt o t he r w is e d ir e ct s , n o he a r in g o r ora l
a r g u m e n t sha l l b e a l lo we d i n s u p p o r t t her eo f. The
a d ve r s e p a r t y ma y file o b j e c t io n s t o t he mo t io n
w it h in (6) day s from ser vic e , upo n the e xp i r a t io n o f
whic h suc h mo t io n shal l b e dee me d s u b m i t t e d for
r e s o lu t io n . (2a, R49)
NOT E
1. Unlike the procedure in the lower courts, motions

in the Supreme Court and Court of Appeals do not contain
notices of hear ing of said motions as no oral argument s
will be heard in support thereof; and, if the appellate court
desires to hold a hearing thereon, it will itself set the date
with notice to the part ies.
If such a notice of hearing is appended to the motion,
the court may simply disregard the same.
641
RULE 50
DISMISSAL OF APPEAL
Section 1. Grounds for dismissal of appeal. — An

appeal may be d i s mi s s e d by the Court of Appeals,
on its ow n mot ion or on that of the app ellee, on the
followi n g groun d s:
(a) Fai lu re of the record on ap peal to show on
its face that the ap peal wa s t ake n with i n the period
fixed by th es e Rules;
(b) Fai lu re to file the notice of appeal or the
record on app eal wi th i n the peri od prescri b ed by
t hes e Rules;
(c) Fai lu re of the ap p ellan t to pay the docket
and other lawful fees as provided in secti on 5 of Rule
40 and sect i o n 4 of Rule 41 (As amended by Resolution
of the Supreme Court, dated February 17, 1998);
(d) U n a u t h o r i z e d a l t e ra t i o n s , o m i s s i o n s or
a d d i t i o n s i n the a p p ro v e d reco r d o n ap p ea l a s
p rovi d ed in sect i o n 4 of Rule 44;
(e) Fai lu re of the ap p ellan t to serve and file
the r e q u i r e d n u m b e r o f c o p i e s o f hi s b ri e f o r
m e m o r a n d u m wi th i n the tim e p rovi d e d b y th es e
Rules;
(f) Ab sen c e of sp eci fic ass i gn m en t of errors in
the ap p ellant' s brief, or of page refe ren c es to the
record as req u i red in sect i on 13, p aragrap h s (a), (c),
(d) and (f) of Rule 44;
(g) F a i l u r e o f the a p p e l l a n t t o t ak e the
n ec e s sa r y step s for the co rrect i on or comp let i on of
the record wit hi n the time limited by the court in
its order;
642
RUL E 50 DISM I SSA L O F AP P E AL SEC . 1
(h) Fai lu re of the app ellant to appear at the

p reli mi n ary con feren ce or to comply with ord ers,
c i r c u l a r s , o r d i r e c t i v e s o f the C ou rt w i t h o u t
justifiab le cause; and
(i) The fac t th at the o rd e r o r j u d g m e n t
app ealed from i s not appealab le, (la)
NOTES
1. The former Rule 50 has been amended in the

present revised Rules by the deletion of par. (c) thereof
(failure of the appellant to prosecute his appeal under the
then Sec. 3 of Rule 46), and the addition of the present
par. (h) regarding non-appearance at the preliminar y
conference and non-compliance with court issuances.
The other grounds have been updated to conform with
supervening procedural changes, such as the eliminat ion
of the appeal bond and the fact t hat the briefs and record
on appeal do not have to be print ed.
2. . Wit h the e xcept io n of Sec. 1(b)
which, parent het ically, has been duly modified by the
delet ion of t he for mer r e q u ir e me n t for an appeal
bond, t he foregoing grounds for the dismissal of an
appeal are directory and not mandat ory, and it is not the
minist erial duty of the court to dismiss the appeal
(Ayala Land, Inc. vs. Carpo, et al., G.R. No. 140162, Nov.
22, 2000). Hence, non-compliance with Sec. 1(f) is not a
mandatory ground for the dismissal of the appeal (Maqui,
et al. vs CA, et al., L 41609 Feb. 24, 1976; Vda. de
Haberer vs. CA, et al., L-42709, May 26, 1981). The
same is true with respect to Sec. 1(d) (Panes vs. CA,
et al., G.R. No. 58321, Jan. 31, 1983) and the present
Sec. 1(g) (Advincula, et al. vs. IAC, et al., G.R. No.
75310, Jan. 16, 1987).
3. Other grounds for the dismissal of an appeal are:
(a) By agreement of the parties, as where the case
was amicably settled by them (Arcos vs. Aradales, L-27344,
643
RUL E 50 R E M E D I A L LAW COM PENDIU M SEC . 1
May 28, 1970);

(b) Where the appealed case has become moot or
academic (Camus vs. CA, L-13125, Feb. 13, 1969; NAW ASA
vs. Cloribel, L-26753, Nov. 28, 1969); and
(c) Where the appeal is frivolous (De la Cruz, et al.
vs. Blanco, et al., 73 Phil. 596; Fernion vs. Sta. Romano, L-
19161, April 29, 1966) or dilatory (Soriano vs. Abeto, L-19661,
Feb. 28, 1964; Rose Industries, Inc. vs. CA, et al., L-
45581, Dec. 29, 1978).
4. The provision in Sec. 1(a) t hat the record on

appeal, whenever its filing is required, must show on its
face t hat the a p p e a l wa s per fe ct e d on t im e i s a
jur isdict ional requisit e, and a defect in such requirement
war r ant s dismissal of the appeal, even if briefs of both
part ies have already been filed (Gov't vs. Antonio, et al., L-
23736, Oct. 19, 1965, o ve r r u l i n g Santiago vs. Valenzuela,
et al., 78 Phil. 397). The certification of the record on
appeal by the trial court after the lapse of the reglement ar y
period does not restore such lost jurisdict ion (Alvero vs. De
la Rosa, 76 Phil. 428).
5. . I t was for mer ly held t hat the failure of

the record on appeal to show on its face all the facts
reflecting the t imeliness of the appeal r ender s it
ma ndat or y for the appeal to be dis m i ssed, as said
facts are jur is• dict ional (Reyes vs. Carraso, L-28783,
Mar. 31, 1971; Workmen's Insurance Co., Inc. vs. Augusto,
et al., L-31060, July 29, 1971; Imperial Insurance, Inc.
vs. CA, et al., L-28722, Oct. 29, 1971). However, this
"material data" rule has been liberalized st art ing with the
case of Pimentel, et al. vs. CA, et al. (L-39684, June 27,
1975).
But where t he mot ion to dis miss the appeal for non-
compliance with Sec. 1(a) of this Rule was filed with the
court a quo, said appeal should not be dismissed but the
lo wer Co urt sho ul d o r de r the a m e n d m e n t and
completion thereof. This is different from the rule where
644
the motion to dismiss was filed in the appellat e court

(Ozaeta, Jr., et al. vs. CA, et al., L-26938, Oct. 29, 1971)
as the provisions of Sec. 6, Rule 41 are principally intended
for the appellate courts (Tanalega, et al. vs. Tizon, et al., L-
30345, Mar. 27, 1974).
6. . Where a pp e l la nt s ' br ief failed to make page

references to the record to support their factual allegat ions
and also failed to make a separate st at ement of facts, in
violation of Sec. 16(d), Rule 46 (now, Sec. 13[d], Rule 44), the
appeal may be properly dismissed (Genobiagan vs. CA, et
al., L-44323, Mar. 2, 1977; Heirs of Abelardo V. Palomique,
et al. vs. CA, et al., L-39288-89, Jan. 31, 1985).
7. . F a i l u r e to file a p p e l l a nt ' s br ief w it hi n

the reglement ar y period need not necessarily cause
dismissal of the appeal where the same was due to force
majeure, i.e., power blackouts which prevented
completion of the print ing and a request for extension
was seasonably filed, wit h the brief t hereaft er actually
filed by appe l la nt (Padosas vs. CA, et al., L-30871,
April 25, 1974).
Sec. 2. Dismissal of improper appeal to the Court of

Appeals. — An appe a l U N D E R Rule 41 t ake n from the
Reg io na l T r ial Co urt t o the Court o f Ap pea ls r a is in g
onl y q u e s t i o n s o f law sha l l b e d i s m i s s e d , is su e s
pur e l y of law no t be in g r e v ie w a bl e by said co urt .
S imi lar l y, an ap pe a l by not ice of appea l i nst e a d of
by pet it io n for r evie w from the a p p e l la t e j u d g m e n t of
a Reg io na l T r ial Co urt shall be d is m is s ed, (n)
A n a pp ea l e r r o n e o u s l y t ak e n t o the Co urt o f
Appe a l s sha ll no t b e t r a n s f e r r e d t o the a p p r o p r i a t e
Co urt bu t shall be d is m is s e d o ut r ig ht . (3a)
NOTES
1. This provision, together with Sec. 6 of Rule 56,

was taken from Circular No. 2-90 of the Supreme Court
645
RUL E 5 0 R E M E D I A L LAW COM PENDIU M SEC . 2
which, effective March 9, 1990, introduced new guidelines

in appeals to the Supreme Court and the Court of Appeals.
UNDE R t he for mer Sec. 3 of Rule 50, wher e the
appealed case was erroneously brought to the Court of
Appeals, it should not dismiss the appeal but shall certify
the case to the proper court, with a specific and clear
st at ement of the grounds therefor. Also, where the appeal
was erroneosly brought to the Supreme Court, as where
it involved quest ions of fact, the rule t hen was t hat it
should be certified to the Court of Appeals (Rosales vs.
Rosales, 105 Phil. 1131). These were p ur suant to the
provisions of Sec. 31 , R.A. 296 t hat cases erroneously
appealed to eit her the Supreme Court or the Court of the
Court of Appeals should be sent to the proper court and
the same shall decide the appeal as if it had been properly
brought before it.
In the aforement ioned Circular No. 2-90, the Supreme
Court took note of the fact t hat the former Rules 41 and
42 of the 1964 Rules of Court, which prescribed a common
mode of appeal to the Court t oget her wit h a common
procedure for considering and resolving an appeal, are no
longer in force. Appeals from the Regional Trial Courts
to the Supr eme Court may be made only by a petition for
review on cert iorari, except only in criminal cases where
the penalt y imposed was life impr iso nment or reclusion
perpetua. On the other hand, appeals from the Regional
Trial Courts to the Court of Appeals may be t aken eit her
by writ of error (ordinary appeal) or by pet it ion for review.
Accordingly, t he S upr eme Court declared that no
transfer of appeals, erroneously t aken to it or to the Court
of Appeals, whichever of these t r ibunals has appropriat e
appellat e jur isdict ion, will be allowed. Also, elevat ing
such appeal to eit her of said appellate courts by the wrong
mode of appeal shall be ground for the dismissal thereof.
This section now provides for the consequences of an
improper appeal to the Court of Appeals. Indeed, under
646
the former pr act ice, t aking an impro per appeal was

somet imes resort ed to as a dilatory strat egy since the
appellant was aware t hat the appealed case would merely
be transferred to the proper appellat e court. Thus, for
inst ance, a judg me n t of the lower court based on a
st ipulat ion of facts would be taken to the Court of Appeals
alt hough no question of fact was involved. Under this
new procedure, such appeal which at most could only
involve quest ions of law shall no longer be transferred to
the Supreme Court but shall be dismissed outright.
2. Where the defendant-appellant appealed directly

to the Supreme Court on pure quest ions of law, while the
plaint iff-appellant appealed to the Court of Appeals on
quest ions of law and fact, disput ing the facts set forth in
the brief filed by defendant - appellant in the former's
appeal to the Supreme Court, the case should be remanded
to the Court of Appeals which has jurisdiction thereof (Hoey
vs. Aurelio & Co., Inc., L-31111, June 30, 1971, citing
Justo vs. Hernando, 89 Phil. 268 and Sec. 2, R.A. 5440).
It is believed t hat this is still a valid and applicable rule of
procedure.
3. It is wit hin the competence of the trial court to

determine whet her the appeal interposed is based on pure
quest ions of law or mixed questions of law and fact, for
the purpose of deciding on the correctness of the procedural
mode of appeal adopted by the appellant , the court to
which the appeal is to be taken and, consequently, whet her
to give due course thereto. Sec. 3 (now, Sec. 2), Rule 50
applies only when the appeal is already brought to the
Court of Appeals at which time it will determine whet her
the appeal was brought to the correct appellat e court
(Heirs of Ramon Pizarro, Sr. vs. Consolacion, et al.,
G.R. No. 51278, May 8, 1988).
4. Where the appeal was dismissed through fraud
practiced upon the appellate court, it has the inherent right
to recall t he r e m it t it ur or remand of the record and
647
RUL E 50 R E M E D I A L LAW C O M P E N D I U M SEC. 3
reinst at e the appeal (Heirs of Clemente Celestino vs. CA,

et al., L-38690, Sept. 12, 1975).
5. A resolut ion of the Court of Appeals dismissing
the appeal and remanding the case to the trial court for
furt her proceedings is merely int er locut or y, hence a
motion for its reconsiderat ion filed a year later may be
ent ert ained and grant ed (Valdez vs. Bagasao, L-46608,
Mar. 8, 1978).
Sec. 3. Withdrawal of appeal. — An app eal may

be w i t h d ra w n as of ri ght at any time before the
fi l i n g o f the a p p e l l e e ' s brief. T h e r e a f t e r , the
wi t h d ra wa l ma y be allowed in the d i scret i on of the
court. (4a)
648
RULE 51
JUDGMEN T
S ect io n 1. When case deemed submitted for judgment.

— A cas e sha l l be de e me d s u b m it t e d for ju d g m e nt :
A. In o r d i n a r y a p p e a l s . —
1) ) Wher e no he a r i n g on the mer it s of t he
ma i n cas e i s he ld , upo n t he fi l in g o f the las t
p le a d i ng , brief, or m e m o r a n d u m r e qu ir e d by the
Rule s or by t he Co ur t itself, or the e xp ir a t io n of the
per io d for its fil ing.
2) ) W he r e su c h a h e a r i n g i s he ld , u p o n
it s t e r m i n a t i o n o r upo n the fil in g o f the last
p le a d i n g o r m e m o r a n d u m a s ma y b e r e q u ir e d o r
p e r m it t e d t o be filed by t he cour t , or t he
e x p i r a t i o n of t he per io d for its filing.
B . I n o r i g i n a l a c t io n s an d p e t i t i o n s for re •
view. —
1) ) Whe r e no c o m m e n t i s filed, upo n t he
ex• p ir a t io n o f t he per io d t o co mme nt .
2) ) Wher e no he a r i n g i s he ld, upo n the filing
of the last p le a d i n g r e qu ir e d o r p er m it t e d t o b e
file d by the co urt , or the e xp ir a t io n of the per io d
for its filing.
3) ) Wher e a he a r i n g on the mer it s of the
ma i n case i s he ld, upo n its t e r m i n a t io n or upo n the
fil ing o f t he las t p l e a d i n g o r m e m o r a n d u m a s
ma y b e r e q u ir e d or p e r m it t e d t o be filed by t he
co urt , or the e xp ir a t io n of the per io d for its filing
(n)
NOTES
1. The new provisions in this section are intended to

clarify and provide specific rules on when a case is deemed
649
RUL E 51 REMEDIA L LAW COM PENDIU M SEC . 1
submitted for judgment, depending on whet her what is

involved is an ordinar y appeal, pet ition for review or an
o r ig ina l act io n, and w he t h e r or not a hear in g was
conducted by the appellate court. The det erminat ion of
the date of submission of the case is made doubly important
by the fact t hat under the Const it ut ion such date is the
reckoning point for the periods for deciding or resolving
the case or mat t er, and which periods are now mandatory
in nat ur e.
2. . The r e le va n t pr o vis io n s of Art . VIII of
the Const it ut ion are as follows:
"Sec. 15. (1) All cases or mat t er s filed after the
effectivity of t his Const it ut ion must be decided or
resolved wit hin t went y- fo ur mont hs from dat e of
submission for the Supreme Court, and, unless reduced
by the Supreme Court, twelve mo nt hs for all lower
collegiate courts, and three mont hs for all other lower
courts.
(2) A case or mat t er shall be deemed submitted
for decision or resolut ion upon the filing of the last
pleading, brief, or memorandum required by the Rules
of Court or by t he court itself.
(3) Upon the expirat ion of the corresponding
period, a certification to this effect signed by the Chief
Just ice or the presiding judge shall forthwith be issued
and a copy thereof att ached to the record of the case
o r ma t t e r , an d ser ve d upo n the p a r t i e s . The
certificat ion shall st at e why a decision or resolut ion
has not been rendered or issued wit hin said period.
(4) Despit e the expirat ion of the applicable
mandatory period, the court, without prejudice to such
r e s po ns i b i l it y as may hav e bee n i nc u r r e d i n
consequence thereof, shall decide or resolve the case
or mat t e r s u b m it t e d t her et o for det er m i nat io n ,
wit hout further delay."
650
RUL E 51 JUDGM EN T SEC . 2
3. When an appellate court has once declared the

law in a case, such declarat ion cont inues to be the law of
t hat case even on a subsequent appeal. The rule made
by an appellat e court, while it may be reversed in other
cases, cannot be departed from in subsequent proceedings
in the same case. The rule is necessary as a mat t er of
policy in order to end lit igat ion; otherwise, it would be
i mpo s s ib l e for an a p p e l la t e Court to per fo r m it s
dut ies efficiently if a quest ion, already considered and
decided by it, were to be lit igat ed anew in the same
case upon any and every subsequent appeal (Ramos vs.
IAC, et al., G.R. No. 72686, Mar. 8, 1989).
4. The law of the case has been defined as the opinion

delivered on a former appeal. It means t hat whatever is
once irrevocably established, as the controlling legal rule
or decision between the same part ies in the same case,
cont inues to be the law of the case, whether correct on
general principles or not, so long as the facts on which
such decision was predicated continue to be the facts before
the court . UNDE R such c ir c u mst a nc e s , no quest io n
necessarily involved and decided on t hat appeal will be
considered on a second appeal or writ of error in the same
case. The rule on the law of the case does not apply to
reso lut io ns r ender ed in connect ion with the case but
wherein no rat ionale has been expounded on the merits
of t hat action (Jarantilla vs. CA, et al., G.R. No. 80194,
Mar. 21, 1989).
Sec. 2. By whom rendered. — The ju d g m e n t shal l

b e r e n d e r e d b y t he m e m b e r s o f t he C o u r t wh o
p a r t ic i p a t e d i n the d e l i be r a t io n o n the me r it s o f the
cas e be fo r e it s a s s i g n m e n t t o a m e m b e r for t he
w r it in g of the dec is io n, (n)
651
RUL E 51 REMEDIA L LAW C O M PEN DIU M SE C 3
NOT E
1. This new Sec. 2 of the Rule simplifies the procedure

under the former Sec. 1 thereof which had provided rules
on who of the Just ices may take part in the adjudication
of the case. Now, the only det er minant is who of them
part icipat ed in the deliberat ions on the merit s of the case,
which deliberat ion t akes place before the assignment to
the ponente for the wr it ing of the decision.
This procedure, in effect, adopts the Const itut ional

provision on which of the Just ices of the Supreme Court
may part icipat e in t he decision of cases t herein. It is
provided t hat cases or mat t ers heard by the Supreme Court
en banc or by a divis io n "shall be decided wit h the
concurrence of a majorit y of the Members who actually
took part in the deliberat ions on the issues in the case
and voted t hereon" (Sec. 4[2] and [3], Art. VIII).
Sec. 3. Quorum and voting in the court. — The

p a r t i c i p a t i o n o f al l t h r e e J u s t i c e s o f a d i v i s io n
s ha l l b e n e c e s s a r y a t t he d e l i b e r a t i o n an d t he
u n a n i m o u s vo t e o f t he t h r e e J u s t i c e s s ha l l b e
r e q u i r e d for t he p r o n o u n c e m e n t o f a j u d g m e n t
o r fina l r e s o l u t i o n . I f t he t hr e e J u s t i c e s d o no t
r e a c h a u n a n i m o u s vo t e , t he c l e r k s ha l l e n t e r
t he v o t e s o f t he d i s s e n t i n g J u s t i c e i n t he r e co r d
. T he r e a ft e r , t he C h a i r m a n o f t he divis i o n s ha l l r e fe r
t he c a s e , t o g e t h e r wit h t he m i n u t e s o f t he
d e l i b e r a t i o n , t o t he P r e s i d i n g J u s t ic e wh o s h a l l
d e s i g n a t e t w o J u s t i c e s c h o s e n b y r affl e fro m
a m o n g al l t he o t he r m e m b e r s o f the C o ur t t o si t
t e m p o r a r i l y w it h t h e m , fo r m i n g a s p e c i a l d i v i s i o n o
f five J u s t i c e s . The p a r t i c i p a t i o n o f all t he five
m e m b e r s o f t he spe c ia l d iv i s io n sha ll b e
n e c e s s a r y fo r t he d e l i b e r a t i o n r e q u i r e d i n
S e c t i o n 2 o f t h i s Rul e an d t he c o n c u r r e n c e of a
m a jo r it y of suc h d i v i s io n sha l l be r e q u i r e d
652
RUL E 51 JUDGM EN T SE C . 3
for the p r o n o u n c e m e n t of a j u d g m e n t or fin al

resolu t ion. (2a)
NOTE S
1. This section, which is an amendment of the former

Sec. 2 of this Rule, sets out more in detail the requirement s
for a quorum, the voting in a regular division of the court,
and the creation of a special division of five Just ices under
the circumst ances contemplated therefor.
2. This was t aken, with modifications, from Sec. 6 of
Executive Order No. 33 which amended Sec. 11 of B.P. Blg. 129, effective
"Sec. 11. Quorum. - A majorit y of the actual

members of the court shall const itute a quorum for
its session en banc. Three members shall const it ute
a quorum for the session of a division. The unanimous
vote of the t hree me mber s of a division shall be
necessary for the pronouncement of a decision or final
resolut ion, which shall be reached in consult at ion
before the writ ing of the opinion by any member of
the division. In the event t hat the three members do
not reach a unanimous vote, the Presiding Just ice
shall request the Raffle Committee of the court for
the designat ion of two addit ional Just ices to sit
t emporarily with them, forming a special division of
five members and the concurrence of a majority of
such division shall be necessary for the pronounce•
ment of a decision or final resolution. The designation
of such addit ional Just ices shall be made strictly by
raffle."
3. To be binding, a judgment must be duly signed

and promulgated during the incumbency of the judge who
signed it. Where the decision was promulgated after two
of the three just ices necessary to constitute a quorum in a
653
RUL E 51 R E M E D I A L LAW C O M P E N D I U M SE C S . 4 , 5
division had lost their authorit y to act as justices by reason

of the pr esident ia l accept ance of t heir resignat ions of
which they were informed before such promulgat ion, said
decision is null and void (Lao vs. To-Chip, et al., G.R.
No. 76594, Feb. 26, 1988).
Sec. 4. Disposition of a case. — The Cou rt of

App eals, in the exe rci se of its app ellate j u ri sd i cti on,
may affirm, reverse, or modify the j u dgmen t or final
order ap p eale d from, and may di rect a new trial or
fu rther p roc ee d i n g s to be had. (3a)
NOTE
1. Where the Court of Appeals directs a new trial or

further proceedings, the case shall ordinarily be remanded
to the court a quo, as the Court of Appeals is not essentially
a trial court. However, under Sec. 5 of the aforestated
E xecut ive Order No. 33 , which a me nd ed the second
p a r a g r a p h of Sec. 9 of B.P. Blg. 129, it is expressly
provided t hat -
"The Court of Appeals shall have the power to
r eceive evid e nce and per fo r m any and all act s
necessary to resolve factual issues raised on (a) cases
falling wit hin its original jur isdict ion, such as actions
for a n n u l m e n t of j u d g m e n t s , as provide d in
paragr aph (2) hereof; and in (b) cases falling within
its appellat e jur isdict ion wherein a motion for new
trial based only on the ground of newly discovered
evidence is grant ed by it."
Sec. 5. Form of decision. — Ever y d e c i s i o n or

fi n al r e s o l u t i o n o f the Cou rt i n a p p e a l e d case s
sh all clea rly and d i st i n ct l y stat e the fi n d i n gs of
fact an d the c o n c l u s i o n s o f la w o n w h i c h i t i s
based, wh ic h may be con t ai n ed in the d eci si on or
final re so l u t i o n itself, or ad opt e d from th os e set
654
fort h i n the de c is io n , or der , o r r e so lu t io n a p p e a le d

from. (Sec. 40, BP Blg. 129) (n)
NOTE S
1. As indicated after this provision, this section was

actually t aken from Sec. 40 of B.P. Blg. 129. Art. VIII of
the Const it ut ion contains a more comprehensive mandat e
on this matt er, t hus:
"Sec. 14. No decision shall be rendered by any
court without expressing therein clearly and distinctly
the facts and the law on which it is based.
No pet it io n for review or mot ion for recon•
siderat ion of a decision of the court shall be refused
due course or denied without stat ing the legal basis
therefor."
2. It will be noted t hat the r equir ement for the

st at ement of the facts and the law, as provided by the
Constitution, B.P. Blg. 129 and the foregoing section, refers
to a decision or, for t hat matter, a final resolut ion. The
same does not apply to minute resolut ions since t hese
usually dispose of the case not on its mer it s but on
procedural or technical considerations, although the court
may, if it deems it necessary, briefly discuss the matter on
the mer it s in an extended resolut ion.
With respect to pet it ions for review (and this may be
considered broad enough to apply to the ordinary petition
for review, petit ion for review on certiorari, or petition for
c e r t io r a r i ) and mo t io ns for r e c o ns id e r at io n , the
Constitution merely requires a statement of the legal basis
for the denial thereof or refusal of due course thereto.
Again, as already stated, the court may opt, but it is not
required, to issue an extended resolution thereon.
Sec. 6. Harmless errors. — No erro r in e it he r the

a d m i s s io n o r the exc lus io n o f e vide nc e an d n o erro r
655
RUL E 51 REMEDIA L LAW COMPENDIU M SE C S . 7-8
or defect in an y ru li ng or order or in an yt h i n g done

or omi t t ed by the trial cou rt or by any of the parties
is g rou n d for g ran t i n g a ne w t rial or for set ti ng
aside , modifying , o r ot he rwi s e disturbin g a
j u d g m e n t o r ord e r , u n l e s s re f u sa l t o tak e suc h
a c t i o n s a p p e a r s t o the Cou rt i n c o n s i s t e n t wit h
s u b s t a n t i a l j u st i ce . The Cou rt at ever y st age of
the p r o c e e d i n g s mu s t d i s r e g a r d an y erro r o r
defect wh i c h doe s not affect the su b st an t i al rights
of the p art ies. (5a)
Sec. 7. Judgment where there are several parties. —

In all act i on s or p ro c eed i n g s , an app ealed j u dgment
may be affirmed as to some of the ap p el lan t s, and
rev e rsed as to oth ers, and the cas e shall thereafte r
be p roc e ed e d with, so far as n ecessa ry, as i f separat e
a c t i o n s ha d b e e n b e g u n an d p r o s e c u t e d ; an d
e xe c u t i o n of the j u d g me n t of affi rman ce may be had
a c c o rd i n g l y , an d cost s ma y be ad ju d ge d in such
cases , as the cou rt shall d ee m proper. (6)
Sec. 8. Questions that may be decided. — No error

w h i c h d oe s no t affec t the j u r i s d i c t i o n ove r the
s u b j e c t m a t t e r o r the v a l i d i t y o f the j u d g m e n t
ap p eale d from or the p roc e ed i n g s t h erei n will be
c o n s i d e r e d u n l e s s s t a t e d i n the a s s i g n m e n t o f
erro rs, or c l os e l y re lat e d to or d e p e n d e n t on an
assi gn ed error and p rop erly argued in the brief, save
as the court may pass upo n p lain errors and clerical
errors. (7a)
NOTES
1. Sec. 8, which is an amendment of the former Sec.

7 of this Rule, now includes some subst ant ia l changes in
the rules on assignment of errors. The basic procedura l
rule is t hat only errors claimed and assigned by a party
will be considered by the court, except errors affecting its
656
jurisdict ion over the subject-matter. To this exception has

now been added er ro r s affect ing t he validit y of t he
judgment appealed from or the proceedings t herein.
Also, even if the error complained of by a part y is not
expressly st at ed in his assignment of errors but the same
is closely related to or dependent on an assigned error
and properly argued in his brief, such error may now
be co ns ider ed by the court . These c hange s are of
jur isprudent ial origin.
2. . The pr o c ed ur e in t he S upr e me Court

being generally t he same as t hat in the Court of Appeals,
unless otherwise indicated (see Secs. 2 and 4, Rule 56),
it has been held t hat the latt er is clothed with ample
authorit y to review mat t ers, even if they are not assigned
as errors on appeal, if it finds t hat their consideration is
necessary in ar r iving at a jus t decision of the case.
Also, an unass igned error closely relat ed to an error
properly assigned (PCIB vs. CA, et al, L 34931, Mar. 18,
1988), or upon which the determinat ion of the question
raised by error properly assigned is dependent, will be
considered by the appellat e court notwit standing the
failure to assign it as error (Ortigas, Jr. vs. Lufthansa
German Airlines, L-28773, June 30, 1975; Soco vs.
Militante, et al, G.R. No. 58961, June 28, 1983).
It may also be observed t hat under Sec. 8 of this Rule,
the appellat e court is aut horized to consider a plain error,
although it was not specifically assigned by the appellant
(Dilag vs. Heirs of Fortunato Resurreccion, 76 Phil. 650),
o t he r w is e i t would be sacr ific ing s u bs t a nc e for
technicalities.
Sec. 9. Promulgation and notice of judgment. —

Aft e r the j u d g m e n t o r fina l r e s o l u t i o n an d
d i ssen t i n g or separat e opinions, if any, are signed
by the Ju st i ces taking part, they shall be deli vered
657
for fi ling to the clerk wh o shall i n d i cat e t hereon

the dat e o f p ro m u l g a t i o n an d cau s e tru e copi es
t h e re o f t o b e s e rv e d u p o n the p a rt i e s o r t h ei r
cou n sel, (n)
Sec. 10. Entry of judgment and final resolutions. —

I f n o a p p ea l o r m o t i o n for ne w t ri al o r re con •
si d e rat i on i s filed wi t h i n the time p ro vi d ed in these
R u l e s , the j u d g m e n t o r fi n a l r e s o l u t i o n sh al l
fo rt h wi t h be en t e re d by the clerk in the book of en t ri e
s of j u d gme n t s . The date wh e n the j u d gmen t o r
fi n al r e s o l u t i o n b e c o m e s e x e c u t o r y sh al l b e d e eme d
as the date of its entry. The record shall con t ai n the
d i sp osi t i v e part of the j u d gm en t or final reso lu t i on
and shall be si gn ed by the clerk, with a cert i fi cate that
suc h j u d g m en t or final resolu t i on has b eco m e
final and execu t ory. (2a, R36)
NOTES
1. Sec. 9 enunciat es the accepted procedural rule

and pract ice in the promulgat ion of judgments in civil cases
but, for pur po ses of the appellat e court s, it has been
expanded to take into account the filing of dissent ing or
separat e opinions, wit hout which the main or majorit y
opinion must not be promulgat ed. However, in just ifiable
sit uat ions or by agreement in the division, the filing of
dissent ing or separat e opinions may be reserved or the
majorit y opinion may be promulgat ed wit hout prejudice
to the subsequent issuance of a more extended opinion,
provided the requisit e votes for promulgat ion of judgment
have been obtained and recorded.
2. Sec. 10 ado pt s t he new co ncept of ent r y of

judgment or final resolut ion, t hat is, the date when it
became executory shall be deemed the date of its entry,
and not the date of the actual mechanical act of writ ing
out the fallo in the book of ent ries of judgment s as was
658
the former rule. See Rule 36 and notes therein. In the

trial courts, the date of entry of judgment is import ant for
purposes of reckoning the periods involved in pet it ions for
relief of judgment under Rule 38 and the revival of the
judgment under Rule 39. While those considerat ions are
not involved in judgment s of appellat e courts, the date of
entry is also import ant for purposes of the execution of
judgment, as explained in the succeeding sections of this
Rule.
Sec. 11. Execution of judgment. — E xc ep t w he r e

t he j u d g m e n t o r fina l o r d e r o r r e s o l u t i o n , o r a
p o r t io n t he r eo f , i s o r d e r e d t o b e i m m e d i a t e l y
e xe c u t o r y , t he mo t io n for its e xe c u t i o n ma y only
b e filed i n t he p r o p e r Co urt aft er its e nt r y .
In o r ig i na l a c t io n s i n the Co urt of App ea ls , its
wr i t of e xe c u t io n shall be a c c o mp a n ie d by a cert ified
t r u e co p y o f t he e n t r y o f j u d g m e n t o r fi na l
r e s o lu t io n an d a d d r e s s e d t o an y a p p r o p r i a t e officer
for its e n fo r c e m e nt .
I n a p p e a l e d c a s e s , w h e r e t he m o t i o n fo r
e xe c u t io n p e n d i n g ap pe a l i s filed in the Co ur t of
A p p e a l s a t a t im e t hat i t i s in p o s s e s s io n of t he
o r i g i n a l r e c o r d o r t he r e c o r d o n a p p e a l , t he
r e s o l u t i o n g r a n t i n g suc h mo t io n sha l l b e
t r a n s m i t t e d t o the lo wer Co urt from whic h the case
o r ig i na t e d , t o g et he r wit h a cert ified t ru e copy of the
j u d g m e n t o r fina l o r d e r t o b e e xe c u t e d , wit h a
d ir e ct iv e for suc h Co urt of or ig in to issue the pr o p e r
wr i t for its e n fo r ce me nt , (n)
NOTES
1. The first paragraph of this section provides for

the basic rule t hat the execution of a judgment or final
resolut ion may be applied for only after its entry, the
659
e xce pt io n be in g w her e the sa m e i s o r der e d t o be

immediately executory. In fact, such order is not necessary
wher e, by provis io n of t hes e Rules or UNDE R sett led
jur ispr udence, the judgment is immediat ely executory.
See, for i ns t a nc e , Sec. 4 of Rule 39 and the not es
t hereunder.
2 . The sam e p a r a g r a p h fu r t he r dec la r e s t he

fu nd a m e nt a l r e q u i r e m e n t t hat t he mot io n for such
execut ion may be filed only in the proper court, and the
general rule is t hat the writ therefor may be sought in
and issued by the court from which the action originat ed,
t hat is, the court of origin or a quo.
Thus, in act ions originally commenced in the Court
of Appeals, the writ of execut ion shall be issued by it and
addressed to any appropriat e officer for its enforcement.
To obviat e any possible quest io ns, t he writ shall be
acco mpa nied by a cert ified t ru e copy of the ent r y of
judgment , final order or resolut ion.
3. . In cases pe nd i n g on appea l in the Court

of Appeals, a mot ion for discr et io nar y execut ion of
the judgment of the trial court may be filed in the
Court of Appeals provided it is in possession of the
original record or the record on appeal. If it grant s the
motion, it will not issue a writ of execution but shall
order the resolution grant ing the motion therefor. A
copy of such resolution and a certified true copy of the
judgment or final order to be executed shall forthwit h
be t ransmit t ed to said trial court.
4. Where the appealed case has been finally resolved

and the judgment has become executory, the sit uat ion
is governed by t he amended and amplified provisions of
Sec. 1, Rule 39.
660
RULE 52
MOTION FOR RE CONS I DE RAT I ON
S ect io n 1. Period for filing. — A part y ma y file

a m o t i o n for r e c o n s i d e r a t i o n of a j u d g m e n t or
f ina l r e s o l u t i o n w i t h i n f i ft e e n (16 ) d a y s fr o m
no t ic e t her eo f, wit h proo f of ser vice on the a d ve r s e
par t y , (n)
Sec. 2. Second motion for reconsideration. — No

seco n d mo t io n for r e c o n s i d e r a t i o n of a j u d g m e n t
o r fina l r e s o l u t i o n b y t he s a m e p a r t y s ha l l b e
e n t e r t a i n e d , (n)
Sec. 3. Resolution of motion. — In t he Co ur t of

A p p e a l s , a m o t i o n for r e c o n s i d e r a t i o n s ha l l b e
r eso lve d w it hi n ninet y (90) day s from the dat e whe n
the Co ur t d e c la r e s i t s u b m it t e d for r eso lut io n , (n)
Sec. 4. Stay of execution. — The p e n d e n c y of a

mo t io n for r e c o ns i d e r a t io n filed on t im e an d by t he
p r o p e r p a r t y s ha l l st a y t he e x e c u t i o n o f t he
j u d g m e n t o r fi na l r e s o l u t i o n s o u g h t t o b e
r e c o n s i d e r e d u n l e s s the co urt , for good r e a s o n s ,
sha ll o t he r w is e d ir ect , (n)
NOTES
1. The present Rule, which now bears the title of

"Motion for Reconsiderat ion," contains new provisions
subst ant ially different from and abandoning the previous
practice in the former Rule 52 which was entit led "Re•
hear ing." Thus, for inst ance, a copy of the motion for
reconsiderat ion must be served on the adverse part y,
thereby eliminat ing the confusion caused by Sec. 1 of the
former Rule which provided for the filing thereof ex parte.
661
RUL E 62 REMEDIA L LAW C O M PEN D IU M SE C S . 1 4
The pr esent Sec. 2 prohibit s the filing of a second

motion for reconsiderat ion while, formerly, the same may
be allowed with leave of court.
Sec. 3 pr o vides a t ime limit of 90 days for the
resolut ion of the motion for reconsiderat ion reckoned from
the dat e whe n the sam e i s dec lar e d s u b m it t e d for
resolut ion, which is normally upon the filing of the last
pleading required by the Rules or by the court. This time
limit applies only to motions for reconsiderat ion in the
Court of Appea ls. It does not apply to mot io ns for
reconsiderat ion in the Supreme Court, pur suant to the
except ion in Sec. 2(b), Rule 56.
Sec. 4 of this Rule now provides t hat while a motion

for r e c o ns id e r a t io n shal l st a y the e xecut io n of the
j u d g me n t or final r e so lut io n , the court may direct
ot herwise, unlike t he previous Rule which did not provide
for such except ion.
2. As a backdrop, it will be recalled t hat under
Sec. 1 of the former Rule, a second motion for recon•
siderat ion was allowed upon prior leave of the court. This
was modified by B.P. Blg. 129 which provided t hat the
t he n I nt er me d iat e Appellat e Court could ent er t a i n a
second motion for reconsiderat ion only if the first motion
for reconsiderat ion resulted in the reversal or subst ant ia l
modificat ion of the judg me nt appealed from (Sec. 11),
while in the lo we r co urt s only one mo t io n for
r eco ns id er at io n s ha ll be allowed (Par. 4, Interim or
Transitional Rules and Guidelines). Said rules, however,
did not apply to the Supreme Court, Sandiganba yan and
Court of Tax Appeals, unless t hereaft er adopted by them.
Subsequent ly, effective July 28, 1986, Sec. 11 of B.P. Blg. 129 was a
t hat in the former I nt er mediat e Appellat e Court, which
was t herein renamed as the Court of Appeals, "no second
motion for reconsiderat ion from the same part y shall be
ent ert ained" (Sec. 6). This restrict ion has been adopted
662
RUL E 52 M O TIO N FOR R E C O N S I D E R A T I O N S E C S . 1-4
in Sec. 2 of the present Rule. Parent het ically, the same

Sec. 6 of Execut ive Order No. 33 further provided t hat
the "motion for reconsiderat ion of its decision or final
resolut ion shall be resolved by the court wit hin ninet y
(90) days from the time it is submitted for resolution."
663
RULE 63
NEW TRIAL
S ec t i o n 1. Period for filing; ground. — At any

tim e aft er the ap p ea l from the lowe r Cou rt has bee
n p e rf e c t e d an d before the Cou rt o f Ap p eal s lose s
j u ri sd i ct i on ove r the case, a party may file a
mot i o n for a ne w trial on the grou n d of newl y
d i s c o v e r e d e v i d e n c e wh i c h cou l d not hav e been
d i s co ve re d prior to the trial in the cou rt below by
the exe rci s e of du e d i li gen ce and wh i c h i s of such a
ch aract e r as wou l d probab ly ch an g e the resu lt. The
mot ion shall be acco mp an i e d by affidavits sh owi n g
the facts c o n s t i t u t i n g the grou n d s t herefor and the
newl y d i sc ov e re d evi d e n c e , (la )
NOTES
1. Sec. 1 of the former Rule has been amended here

to make more specific the period for the filing of a motion
for new trial, i.e., at any time after the perfect ion of the
appeal from the judg ment or final order of the lower court
and before the Court of Appeals loses jurisdict ion over
the case. The former provision reading "(b)efore a final
order or judg me n t r ender ed by the Court of Appeals
beco mes execut o r y, " wa s co ns ider ed i mpr ec ise and
suscept ible of misint erpret at ion, hence the amendment .
2. Rules 52 and 53 regarding motions for reconsider•

ation and new trial, in relat ion to Rule 45 on appeals by
cert iorar i from the Court of Appeals to the Supreme Court,
may now be recapit ulat ed as follows:
a. A motion for reconsiderat ion may be filed within
15 days from notice of the judg ment or final resolut ion of
the Court of Appeals.
664
RUL E 53 NE W TRI AL SEC . 1
b. A motion for new trial may be filed at any time

after perfection of the appeal from the Regional Trial Court
and up to but wit hin 15 days from service of a copy of the
judgment or final resolut ion of the Court of Appeals.
c. A pet ition for review on cert iorar i by the Supreme
Court may also be filed wit hin such 15-day period from
notice of the judgment or final resolution of the Court of
Appeals, unless the party files either of the aforementioned
two motions.
d. Accordingly, wit hin t hat r egleme nt ar y 15-day
per iod, the aggr ie ve d par t y may file a mot ion for
reconsiderat ion; or a motion for new trial, if proper; or a
petition for review on certiorari to the Supreme Court. The
said two motions shall be filed in the Court of Appeals,
and the pet it ion wit h the Supreme Court, with copies
served on the adverse part y in all inst ances.
e. If t he par t y se a so na b l y files a mot io n for
reconsiderat ion in the Court of Appeals, the period to
appeal is set aside and he shall have anot her 15 days from
receipt of the resolut ion of said court denying such motion
within which to appeal by cert iorari. If he files a motion
for new trial, the same procedure shall apply in the event
of its denial. In both instances, the rule on the effects
of pro forma motions shall be observed.
f. If the party decides to proceed directly with an
appeal by cer t io r ar i, he should comply wit h all the
requir ement s of Rule 45 and file his petit ion, sufficient in
form and subst ance, wit hin the r egle ment ar y 15-day
period, or a motion for extension of t hat period upon
compliance with Sec. 2, Rule 45. The party whose motion
for reconsiderat io n or new trial was denied and who
desires to appeal to the Supreme Court may also move for
such extended period upon the same terms, preparatory
to and for purposes of the filing of his petition.
665
RUL E 53 R E M E D I A L L AW C O M PEN D IU M SE C S 2-4
Sec. 2. Hearing and orders. — The Cou rt of Ap p eal s

shall con si d e r the ne w evi d en c e together with that
ad d u ce d at the trial below, and may grant or refu se a
new trial, or may mak e such ord er, with n ot i ce to both
p art i es, as to the t akin g of further t est i mon y , ei t h e r
orally in court, or by d ep osit i on s, o r re n d e r su c h
ot h e r j u d g m e n t a s ou gh t t o b e ren d e re d upo n suc h
t erm s as i t may dee m just. (2a)
Sec. 3. Resolution of motion. — In the Court of

Ap p eals, a mot i o n for ne w trial shall be resolved
wit hi n ni n ety (90) days from the date whe n the court
d ecla re s i t su b mi t t e d for reso lu t i on
Sec. 4. Procedure in new trial. — Un les s the court

o t h e rw i s e d i rect s, the p roc ed u r e in the new trial
shall be the same as that grant ed by a Regional Trial
Court. (3a)
NOTES
1. Jus t like a motion for reconsiderat ion in the Court

of Appeals as provided in Sec. 3 of Rule 52, the same time
limit for resolut ion of a motion for new trial t herein is
provided for by Sec. 3 of t his Rule, but this provision does
not apply to the Supreme Court, since the provisions of
Rule 53 are not applicable to cases t herein. See notes
under Secs. 2 and 4 of Rule 56.
2. Regarding Sec. 4 of this Rule, refer to Rule 37,

espec ia l l y t he a m e n d e d an d a d d it io n a l pr o vis io n s
int roduced t herein by these revised Rules. This section
maint ains the same reser vat ion t hat the Court of Appeals
may direct such depart ure from the procedure provided in
Rule 37 where adherence t hereto may result in injustice
in cases pending before it or in the adjudication thereof.
3. In the trial courts, a second motion for new trial

may be filed where the ground therefor did not exist at
666
RUL E 53 NE W TRI AL S E C S . 2- 4
the time the first motion for new trial was filed, e.g., where
the first motion was based on fraud and the second is based
on newly discovered evidence the requisit es for which
concurred only after the filing of the first motion. This
would not be possible in the Court of Appeals where the
only ground for a motion for new trial is newly discovered
evidence.
667
RULE 54
INTERNAL B U S I N E S S
S ect ion 1. Distribution of cases among divisions. —

All the case s of the Court of App eals shall be allotted
amon g the d i fferent d i vi si on s t h ereo f for h eari n g
and d eci si on . The Court of App eals, si t t i n g en banc,
sh all mak e p rop e r o rd e r s or ru le s to gover n the
al lot men t of case s amon g the different d ivi si on s, the
Con st i t u t i on of suc h d i vi si on s , the regu lar rotation
o f J u s t i c e s amon g t h em , the fi lli ng o f vacan ci e s
oc cu rri n g t h e rei n , and ot her mat t ers re lat i n g to the
b u si n es s of the court; and suc h ru les shall con t i n u e
in force u n ti l rep ea l e d or a lt e red by i t or by the
S u p rem e Court, (la )
Sec. 2. Quorum of the court. — A majorit y of the

act u a l m e m b e r s o f the Cou rt sh a l l c o n s t i t u t e a
q u oru m for its s e s si o n s en banc. Three memb ers
sh al l c o n s t i t u t e a q u o ru m for the s e s s i o n s of a
d ivi si on . The affi rmative vote s of the majority of
the me m b e r s p re sen t shall be n ece s s a r y to pass a
re s o lu t i o n of the cou rt en banc. The affi rmative v o t e
s o f t h re e m e m b e r s o f a d i v i s i o n sh al l b e n ece s sa r y
for the p ro n o u n c e m e n t of a ju d gmen t of fi n a l
r e s o l u t i o n , w h i c h s h a l l b e r e a c h e d i n con su l t at i o
n before the wri t i n g of the op in i on by any memb e r
of the d i vi si on . (Sec. 11, first par. of BP Blg. 129,
as am en d ed by Sec. 6 of EO 33). (3a)
NOTES
1. Sec. 1 is a reproduct ion of the same section of the

former Rule, and bears noting for its clarification of the
mat t er s t hat are handled by the Court of Appeals sitting
eit her en banc or in divisions.
668
RUL E 54 INTERNA L BU SINES S S E C S . 1-2
2. As indicated t herein, Sec. 2 was t aken from the

amendatory Sec. 6 of Execut ive Order No. 33, which is
quoted under Note 2 of Sec. 3, Rule 51 .
3. Sec. 2 of the former Rule, which provided rules
for the period wit hin which a case shall be decided or
t erminat ed, has been eliminated in t hese revised Rules
since suc h m a t t e r s ar e now pro vid ed for in the
Const itut ion.
669
RULE 56
PUB LICATION OF JUDGM ENT S

AN D FINAL RESO LUTIO NS
S ect i o n 1. Publication. — The j u d g m en t s and

final re s o lu t i on s of the cou rt shall be pu b li sh ed in
the Official G azet t e and in the Report s officially
au t h o ri ze d by the cou rt in the lan gu ag e in whi ch they
hav e bee n ori gin ally wri t t en , t oget h er with the
s y l l a b i t h e r e f o r p r e p a r e d b y the r e p o r t e r i n
con su l t at i o n wit h the wri t ers thereof. Memorand a
of all oth e r j u d g m e n t s and final re s o l u t i o n s not so
p u b l i s h e d s h a l l b e mad e b y the r e p o r t e r an d
p u b li sh ed in the Official G azett e and the aut hori zed
rep ort s, (la )
NOTE
1. Sec. 1, CA . 638 provides for the publicat ion in

the Official Gazett e of only such decisions or abstract s of
decisions of the Supr eme Court and the Court of Appeals
as may be deemed by said courts of sufficient importance
to be so published.
Sec. 2. Preparation of opinions for publication. —

The rep o rt e r shall p rep are and p u b li sh wit h each
rep o rt ed j u d g me n t and final re so l u t i o n a con ci se
s y n o p s i s o f the fa ct s n e c e s s a r y for a c l ea r
u n d e rs t a n d i n g of the case, the n ame s of cou n sel,
the mat eri al and con t rove rt ed p oi nt s i nvolved, the
a u t h o r i t i e s ci t e d t h e re i n , an d a s yl l a b u s wh i c h
sh a l l b e c o n f i n e d t o p o i n t s o f law . ( S ec . 22a,
R.A. No. 296). (n)
670
RUL E 5 5 PUB LIC ATIO N O F J U D GM E N T S SE C 2
AN D F I N A L R E S O L U T I O N S
NOTE S
1. The syllabus is an abstract, a headnote, or a note
prefixed to the report of an adjudged case, containing an
epitome or brief st at ement of the rulings of the court upon
the point s decided in the case (Kuhn vs. Coal Co., 215
U.S. 356, 30 S. Ct. 140, 54 L.Ed. 228). The weight of its
aut horit y in the different st at es depends on whet her the
syllabus should contain also findings of fact or, like our
pract ice, shall be confined to points of law. The bett er
rule, in our experience, should be t hat ordinarily where a
headnote, even though prepared by the court, is given no
special force by st at ut e or rule of court, the opinion is to
be looked to for the original and aut hent ic st at ement on
the grounds of decision (Burbank vs. Ernst, 232 U.S. 162,
34 S. Ct. 299, 58 L. Ed. 551).
2. Thus, for instance and by way of illustration, in

Libi, et al. vs. Intermediate Appellate Court, et al. (G.R.
No. 70890, Sept. 18, 1992), a controversy arose as to
whet her the liabilit y of parent s for the civil liability arising
from a felony committed by t heir minor son is primary or
subs id iar y. The r espo nde nt court declared i t to be
subsidiary, relying on the supposed holding to t hat effect
in Fuellas vs. Cadano, et al. (L-14409, Oct. 31 , 1961).
Reject ing such holding, and after discussing cont rary
doct rines in ot her cases, the S upr eme Court furt her
pointedly observed:
"Also, coming back to respondent court's reliance
on Fuellas in its decision in the present case, it is not
exact ly accurat e to say t hat Fuellas provided for
subsidiary liabilit y of the parent s therein. A careful
scrutiny shows t hat what respondent court quoted
verbat im in its decision now on appeal in the present
case, and which it att ribut ed to Fuellas, was the
syllabus on the law report of said case which spoke of
'subsidiary' liabilit y. However, such categorization
does not specifically appear in the text of the decision
671
in Fuellas. x x x"
Sec. 3. General make-up of volumes. — The pub•

li shed d eci si on s and final resolu t ion s of the Supreme
Court shall be called " Ph i li p p i n e Reports," while
t hos e of the Court of Ap p eal s shall be kn ow n as the
"Court of Ap p eal s Reports." Each volu m e thereof
shall con t ai n a t ab le of the case s rep ort ed and the
c a s e s c i t e d i n the o p i n i o n s , wi t h a c o m p l e t e
a l p h a b e t i c a l i n d e x o f the su b j ec t ma t t e r s o f the
v o l u m e . I t sh al l c o n s i s t o f no t les s t ha n seve n
h un d re d page s p ri nt ed upo n good paper, well bound
an d n u m b e re d c o n s e c u t i v e l y in the ord er o f the
volu m e p u b li sh ed . (Sec. 23a, R.A. No. 296) (n)
NOTES
1. The official reports of court decisions which are

published by the Government and, therefore, const itute
pr imar y aut hor it y t hereon, are those in the Philippine
Reports, Official Gazett e and Court of Appeals Reports,
all of which are aut horized by law.
2. There are a number of privately published reports
of decisions and resolut ions of our appellat e courts which,
a lt ho u g h not s t at ut o r i l y sa nct io ned, have acquir ed
general accept ance with at least one duly endorsed by the
Supreme Court and recognized by being indicated as the
source of cit at ions of cases in its decisions.
While such publicat ions render the service which the
go ver n me n t pr int in g office cannot cope wit h, being
unofficial publicat ions the aut horit y thereof would best
be subserved by furt her indicat ing the case number and
date of promulgat ion of the case when cited in a decision.
Of course, in case of conflict or doubt, the official copy as
reported in the government publicat ions or on file with
the Office of the Court Reporter should be consulted and
would prevail.
672
PROCEDURE IN THE SUPREME COURT
RULE 56
A. ORIGINAL CASES
Section 1. Original cases cognizable. — Only peti•

t ion s for ce rt i o ra ri , p roh i b i t i on , m a n d a m u s , quo
warran t o, hab ea s corpu s, d i sci p lin ary p roceed i n gs
agai n s t me mb e r s of the j u di ci ary and at t o rn e y s ,
an d cas e s a f f e c t i n g a m b a s s a d o r s , ot h e r p u b li c
mi n i st e rs and con su l s may be filed originally in the
S u p rem e Court, (n)
NOTES
1. The original jur isdict ion of the Supreme Court

over the cases or proceedings now specifically set out in
this new provision is based on the provisions of Art. VIII
of the 1987 Co nst it ut io n, pr inc ipa lly Sec. 5(1) and
complement ed by Secs. 5(5), 6 and 11.
2. Sec. 1 of the former Rule 56 provided t hat "(u)nless
otherwise provided by the Const it ut ion or by law, the
procedure in the Supreme Court in original as well as in
appealed cases, shall be the same as in the Court of
Appeals, except as hereinafter provided." Alt hough this
former provision has not been reproduced, the same
principle has been substant ially observed in the present
Rule which now explains the procedure in the Supreme
Court more in detail.
Sec. 2. Rules applicable. — The p ro c e d u r e in

original cases for certiorari, prohibition, mandamus,
qu o w a r r a n t o an d h a b e a s c o rp u s sh al l b e i n
acco rd an ce with the applicab le p rovi si on s of the
Con sti tut ion, laws, and Rules 46, 48, 49, 51, 62 and
673
thi s Rule, su bj ect to the followi n g p rovi si on s:

(a) All refe ren ces in said Ru les to the Court of
Ap p eal s sh all be u n d e rs t o o d to also app ly to the
S u p re m e Court;
(b) The p ort i on s of said Ru les d eali n g strictly
wit h and sp eci fi cally i n t end e d for ap p ealed cases in
the Court of Ap p eal s shall not be app li cab le; and
(c) Ei g h t e e n (18) clearly legib le copi es of the
p et i t i on shall be filed, t oget h e r wit h proof of service
on all ad vers e p arti es.
The p ro ce ed i n g s for d i sci p lin ary action against
m e mb e r s of the j u di ci ary shall be govern e d by the
law s an d R u l e s p r e s c r i b e d t h e re f o r , an d t h os e
agai n s t at t o rn ey s by Rule 139-B, as amen d ed , (n)
NOTES
1. Expressly made applicable to original act ions in

the S upr eme Court are the following Rules which are of
pr imar y governance in the Court of Appeals, viz.: Rule 46
(or ig ina l act io n s in the Co urt of Appea ls) , Rule 48
(preliminar y conference), Rule 49 (oral argument ), Rule
51 (judgment), and Rule 52 (motion for reconsiderat ion).
However, such port ions t hereof which deal strictly with
and are specifically int ended for appealed cases in the
Court of Appeals are not applicable.
2. It will be noted t hat while, except for its Sec. 3,

Rule 52 on motions for reconsiderat ion is applicable to both
the Court of Appeals and the Supreme Court, Rule 53 on
motions for new trial is observed in the Court of Appeals
but is not made applicable to and cannot be availed of in
the Supreme Court in civil cases t herein.
The appar ent reason for this is t hat while the Court
of Appeals can ent ert ain and grant a motion for new trial
on the ground of newly discovered evidence, this is justified
674
RUL E 56 ORIGINA L C AS E S SEC . 2
by the fact t hat it can resolve factual quest ions and, for
t hat matt er, can conduct hearings for t hat purpose. The
Supreme Court, on the other hand, cannot ent ert ain such
motions as only quest ions of fact are involved t herein and it
is not a trier of facts. Besides, the findings of fact of the
Court of Appeals are generally binding on the Supreme
Court (see Goduco vs. CA, et al., L-17647, June 16, 1965).
3. However, in criminal cases, a different t r eat ment
appears to have been adopted. Thus, in a criminal case
on appeal in the Supreme Court from a decision of the
Sandiganbayan, the Supreme Court ordered a new trial
on the basis of two affidavits exculpat ing the appellant
and which were submitted to it in a manifestat ion which
it decided to t r ea t as a mot ion for new t r ia l in t he
int erest of justice (Helmuth vs. People, G.R. No. 57068,
Mar. 15, 1982). Also, in People vs. Amparado (L-48656,
Dec. 21 , 1987), the Supreme Court set aside its judgment
and remanded the case to the lower court for new trial on
the ground of newly discovered evidence.
It is believed t hat these two cases were so treated only
on equit able considerat ions but may not be considered as
creat ing an except ive rule against motions for new trial
on factual issues being sought in the Supreme Court.
4. Technically, evidence not submitted before the
lower court may not be considered by the appellat e court.
However, where the test imonies in the proceedings in the
prosecutor's office were duly transcribed and not impugned
by the par t ie s, and were considered by the Court of
Appeals, the remand of the case to the trial court would
result in further delay. Accordingly, the Supreme Court
considered t he quest ioned evidence toget her with the
evidence adduced in the trial court in the adjudication of
the case (Regalario vs. NWFinance Corp., et al., L-26243,
Sept. 30, 1982).
675
B. APPEALED CASES
Sec . 3. Mode of appeal. — An a p p e a l to the

S u p re m e Court ma y be t ake n only by a p et it i on for
revi ew on certi orari, excep t in cri minal case s where
the p en alt y i mp ose d is d eath , recluaion perpetua or
life i mp ri so n me n t , (n)
NOTE
1. Rules 41 and 42 of t he 1964 Rules of Court,

which prescribed a common mode of appeal to the Court
of Appeals and the Supreme Court, were superseded by
R.A. 5433 , R.A. 5440 and, furt her, by B.P. Blg. 129.
Appeals to the Supreme Court in civil cases may be made
only by pet it ion for review on cert iorari from the Court of
Appeals (Rule 45) and from the Regional Trial Courts
(Rule 45 in relat ion to Sec. 17, R.A. 296). Even in criminal
cases, appeal to the Supreme Court shall be by petition
for review on cert iorari, except where the penalt y imposed
by t he lower court is deat h, reclusion perpetua or life
i mpr iso nme nt . The deat h penalt y shall be subject to
automat ic review and, in the lat t er two cases, the same may
be elevat ed by ordinar y appeal (see Note 1 under Sec. 1,
Rule 45, and Note 11 under Secs. 1 to 3, Rule 122).
Sec. 4 . Procedure. — The a p p e a l s h a l l be govern e

d by and d i sp ose d of in acco rd an c e wit h the
a p p l i c a b l e p r o v i s i o n s o f the C o n s t i t u t i o n , laws ,
Ru les 45, 48, sect i on s 1, 2, and 5 to 11 of Rule 51, 52
and thi s Rule, (n)
NOTE
1. Secs. 3 and 4 of Rule 51 are not applicable to

appellate proceedings in the Supreme Court as the first
refers to the quorum and procedure for voting which is
peculiar to the Court of Appeals; and the second is with
676
RUL E 56 APPEALE D C AS E S SEC . 5
regard to the disposition of the case by said court which

includes the grant ing of a new trial, a power which is not
exercised by the Supreme Court in civil cases as explained
under Sec. 3 of this Rule. For the same reason, Rule 53
on motions for new trial is not ment ioned or included in
this sect ion.
Sec. 5. Grounds for dismissal of appeal. — The

appeal may be d i smi ssed motu proprio or on mot ion
of the re sp on d en t on the followi ng groun d s:
(a) Fai lu re to take the appeal wi t hi n the regle•
men t a ry period;
(b) Lack of merit in the petition;
(c) Fai lu re to pay the requ i sit e docket fee and
other lawfu l fees or to make a d ep osi t for costs;
(d) Fai lu re to comply with the req u i re m en t s
rega rd i n g proof of service and con t en t s of and the
d ocu m en t s whi c h should accomp an y the petitions;
(e) Fai lu re to comply with any circular, direc•
tive or order of the S up reme Court wi t h ou t justi•
fiable cause;
(f) Error in the ch oice or mode of appeal; and
(g) The fact that the case is not appealab le to
the S u p re me Court, (n)
NOTES
1. Among the sources of the foregoing grounds

for dis missa l of appeal in the Court of Appeals are
Revised Circular No. 1-88, Circular No. 2-90 and Circular
No. 19-91 of the Supreme Court.
2. Unlike the former practice where deposit for costs
shall be made pur suant to a resolution therefor upon the
appeal being given due course, costs are now required to
677
be deposited upon the filing of the petit ion. Hence, Par.

(c) includes failure to make such deposit as a ground for
the dismissal of the appeal.
3. . The gro und s for dis m is sa l of appe a l s in
the Supreme Court vary in a number of respects from
those in the Court of Appeals (Rule 50) since the appeal
in civil cases to both courts differ in the mode and
requir ement s for perfect ing the appeal, as well as the
pleadings and proceedings required t hereaft er.
Sec. 6. Disposition of improper appeal. — Except as

p rovi d ed in sect i o n 3 , Rule 122 regard i n g ap p eals
i n c ri m i n a l cas e s wh e r e the p e n a l t y i mp os e d i s
d eath , reclusion perpetua or life i mp ri son men t , an
ap p eal t ak e n t o the S u p re m e Court b y n ot i c e o f
app eal shall be d i smi s s ed .
An ap p eal by certi orari t ake n to the S u p reme
Cou rt from the R egi on a l Trial Cou rt s u b m i t t i n g
i s s u e s o f fac t ma y b e re f e r re d t o the Cou rt o f
Ap p ea l s for d e c i s i o n or ap p rop ri at e act i on . The
d e t e rm i n a t i o n of the S up re me Court on wh et h e r or
not i ssu e s of fact are i n vo lved shall be final, (n)
NOTES
1. This section was t aken from Circular No. 2-90 of

the Supreme Court, which took effect on March 9, 1990,
and was dictated by the reasons explained in Note 1 under
Sec. 3 of this Rule.
2. The first par agr aph refers to an erroneous mode
of appeal, t hat is, the appeal which does not involve the
deat h penalt y or reclusion perpetua or life impr isonment
is elevat ed to the S upr eme Court by notice of appeal
inst ead of a pet it ion for review on cert iorari as provided
in Sec. 3 of this Rule. In such case, the appeal shall be
dismissed outright.
678
RUL E 56 A P P E AL E D C AS E S SEC . 7
3. The second par agraph contemplat es the situat ion

wherein the appeal was correctly taken on a petition for
review on cert iorari but factual issues are invoked for
resolution, contrary to the provisions of Rule 45 t hat only
quest ions of law may be raised therein. In this instance,
the case may be referred to the Court of Appeals, although
the Supreme Court may also dismiss the appeal. The
more liberal considerat ion is presumably due to the fact
t hat there have been jur isprudent ial exceptions laid down
by the Supreme Court to the rule t hat only quest ions of
law may be raised in appeals by cert iorari.
This p a r a g r a p h was also t ake n from C ir cu la r
No. 2-90, with the amplification t hat the referral to the
Court of Appeals shall be "for decision or appropriat e
action," and t hat the determinat ion of the Supreme Court
as to whet her or not issues of fact are involved is final.
Sec. 7. Procedure if opinion is equally divided. —

Wh er e the Cou rt en banc is eq u al l y d i v i d e d in
opi ni on, or the n ecessa ry majority cannot be had,
the case shall again be deliberated on, and i f after
su c h d e l i b e r a t i o n n o d e c i s i o n i s r e a c h e d , the
ori gin al act i o n co m m e n c e d in the cou rt shall be
d i smi ssed; in app ealed cases, the j u dgmen t or order
a p p e a l e d from shal l st an d affi rmed; and on all
i n ci dent al matt ers, the petition or motion shall be
denied. (11a)
NOTES
1. This section was taken, with minor changes, from

Sec. 11 of the former Rule 56, which, in turn, was based
on the pro vis io ns of Sec. 11(2), Art. X of t he 1973
Const itut ion. That provision of the 1973 Const itut ion
was not adopted in the 1987 Const it ut ion, hence this
section does not have a constitutional basis.
679
2. On this score, it would be advisable to reproduce

herein some relevant provisions of Art. VIII of the 1987
Const it ut ion for ready reference:
"Sec. 4. (1) The Supreme Court shall be com•
posed of a Chief Ju st ic e and fo urt een Associate
Just ices. It may sit en banc or in its discretion, in
divis io ns of t hr ee , five or seven Me mber s. Any
vacancy shall be filled wit hin ninet y days from the
occurrence thereof.
(2) All cases involving the const it ut ionalit y of
a treat y, int er nat io na l or execut ive agreement , or
law, which shall be heard by the Supreme Court en
banc, and all other cases which under the Rules of
Court are required to be heard en banc, including
those involving the const it ut ionalit y, applicat ion, or
oper at io n of pr es id e nt ia l decrees, pro cla mat io ns,
orders, inst ruct ions, ordinances, and other regula•
t ions shall be decided wit h t he concurr ence of a
majorit y of the Members who actually took part in
the deliberat ions on the issues in the case and voted
t hereon.
(3) Cases or mat t er s heard by a division shall
be decided or resolved wit h the concurrence of a
majorit y of the Members who actually took part in
the deliberat io ns on t he issues in t he case and voted
t hereon, and in no case wit hout the concurrence of
at least t hree of such Members. When the required
number is not obtained, t he case shall be decided en
banc: Provided, That no doctrine or principle of law
laid down by the court in a decision rendered en banc
or in division may be modified or reversed except by
the court sitt ing en banc.
X X X
Sec. 13. The conclusions of the Supreme Court

in any case submit t ed to it for decision en banc or in
division shall be reached in consult at ion before the
680
RUL E 56 APPEALE D C AS E S SE C . 7
case is assigned to a Member for the writ ing of the

opinion of the Court. A certification to this effect
signed by the Chief Just ice shall be issued and a copy
thereof att ached to the record of the case and served
upon the part ies. Any Member who took no part,
dissent ed, or abstained from a decision or resolut ion
must st at e the reason therefor. The same require•
ment s shall be observed by all lower collegiate courts.
Sec. 14. No decision shall be rendered by any
court without expressing therein clearly and distinctly
the facts and the law on which it is based.
No petition for review or motion for reconsider•
ation of a decision of the court shall be refused due
course or denied wit hout st at ing the legal basis
therefor.
Sec. 15. (1) All cases or mat t ers filed after the
effectivity of this Const it ut ion must be decided or
resolved wit hin twent y-four mont hs from date of
submiss io n for the S upr e me Court, and, unless
reduced by the Supreme Court, twelve months for
all lower collegiate courts, and three months for all
other lower courts.
(2) A case or mat t er shall be deemed submitted
for resolut ion upon the filing of the last pleading,
brief, or memorandum required by the Rules of Court
or by the court itself.
(3) Upon the expirat ion of the corresponding
period, a certification to this effect signed by the Chief
Just ice or the presiding judge shall forthwit h be
issued and a copy thereof attached to the record of
the case or matter, and served upon the parties. The
certification shall state why a decision has not been
rendered or issued within said period.
(4) Despite the expirat ion of the applicable
mandatory period, the court, without prejudice to
681
such responsibilit y as may have been incurred in

consequence thereof, shall decide or resolve the case
or ma t t e r sub m it t e d t he r et o for det er m i nat io n,
wit hout furt her delay."
Furt her mo re, Art. XVIII, the Transitory Provisions
thereof, requires inter alia t hat :
"Sec. 12. The Supreme Court shall, wit hin one
year after the rat ificat ion of t his Const it ution, adopt
a s ys t e m a t i c pla n to expe d it e the d ecis io n or
resolut ion of cases or mat t ers pending in the Supreme
Court or the lower courts prior to the effectivity of
t his Const it ut ion. A similar plan shall be adopted
for all special court s and quasi-judicial bodies.
Sec. 13. The legal effect of t he lapse, before the
rat ificat ion of t his Co nst it ut io n, of the applicable
period for the decision or resolut ion of the cases or
mat t er s submit t ed for adjudicat ion by the courts,
shall be det er mined by the Supreme Court as soon
as pract icable.
Sec. 14. The provisions of par agr aphs (3) and
(4), Section 15 of Article VIII of this Const itution shall
apply to cases or mat t er s filed before the ratificat ion
of this Const itut ion, when the applicable period lapses
after such rat ificat ion."
3. The provision of the 1987 Const it ut ion requiring
a certification by the Chief Just ice t hat the conclusions of
the Court were reached in consult at ion before the case
was assigned to a member for the writ ing of the opinion
(Sec. 13, Art. VIII) refers to decisions in judicial, not
administ r at ive, cases. Also, in a per curiam decision in
such administ rat ive cases, it being an opinion of the Court
as a whole and t here is no ponente alt hough any member
of the Court may be assigned to write the draft, a formal
cert ificat ion is not required. Furt her mor e, the consti•
t ut io nal ma ndat e t hat no motion for reconsiderat ion of a
682
RUL E 56 A P P E AL E D C ASE S SEC . 7
decision of the Court shall be denied without st at ing the

legal basis therefor does not apply to an administ rat ive
case t her ein (Prudential Bank vs. Castro, et al., Adm.
Case No. 2756, Mar. 15, 1988).
4. The Supreme Court is clothed with ample author•

ity to review mat t ers, even if they are not assigned as
errors on appeal, if it finds t hat their considerat ion is
necessary in arr iving at a just decision of the case. It
may consider an unassigned error closely related to an
error properly assigned or upon which the det erminat io n
of the qu e st io n pr o p er l y as s ig ne d i s d e p e nd e nt .
Furt her mo re, where the Court is in a position to resolve
the dispute based on the records before it, it may resolve
the action on the mer it s in the public int erest and for the
expedit ious administ rat ion of justice, such as where the
ends of justice would not be subserved by the remand of
the case (Roman Catholic Archbishop of Manila, et al. vs.
CA, et al., G.R. No. 77425, June 19, 1991). This doctrine
is now embodied in Sec. 8, Rule 51 .
5. In People vs. Jabinal (L-30061, Feb. 27, 1974),

the Supreme Court emphasized t hat its int erpret at io n
upon a law const it ut es, in a way, a part of the law as of
the day t hat law was o r ig ina l l y pa ss ed , since it s
const ruct ion merely est ablishes the cont emporaneous
legislat ive int ent which t hat law intends to effectuate.
Thus, Art. 8 of the Civil Code provides t hat judicia l
decis io ns app lying or i nt e r pr et in g t he laws or t he
Const itut ion shall form a part of the legal system.
It also clarified t hat when its doctrine is subsequent ly
overruled and a different view is adopted, the new doctrine
should be applied prospectively and should not apply to
part ies who had relied on the old doctrine and acted on
the faith thereof.
683
PROVIS IONAL REMEDIES
PRELIMINARY CONSIDERATIO NS
1. . The r evise d Rule s of Co urt pro vide for

the provis io na l r e medies of pr eliminar y at t achme nt ,
pre• liminary injunct ion, receivership, replevin and
support pendente lite. Contempt, which under the old
Rules was also considered a provisional remedy, is now
classified as a special civil action.
2. Provisional remedies, also known as ancillary or

auxiliar y r e med ies, are wr it s and processes available
during the pendency of the action which may be resorted
to by a lit igant to preserve and protect cert ain rights and
int erest s t herein pending rendit ion, and for purposes of
the ult imat e effects, of a final judgment in the case. They
ar e pr o vis io na l bec au s e t he y c o ns t it u t e t e mp o r ar y
measures availed of during the pendency of the action,
and they are ancillary because they are mere incident s in
and are dependent upon the result of the main action.
3. Prior to the operat ional effectivity of B.P. Blg. 129,

inferior courts had jurisdiction to issue writ s of preliminar y
at t achme nt and replevin (Sec. 88, R.A. 296) where the
main case was wit hin their jurisdiction, but the same could
be enforced outside the province only with the approva l
of the former Court of First Inst ance (Sec. 4, Rule 133),
except those issued by the t hen City Courts wherein such
certificat ion was not required (Sec. 4, R.A. 5967). Inferior
courts could also issue writs of preliminar y injunction in
forcible entry cases (Sec. 88, R.A. 296; Sec. 3, Rule 70;
Art. 539, Civil Code). In other cases, only the t hen City
Courts and municipal courts of the capitals of provinces
and su b- pr o vince s could issue wr it s of pr e l i m i na r y
injunct ion but only in the absence of the District Judge
(Sec. 88, R.A. 296). Also, Rule 61 (support pendente lite)
was made applicable to inferior courts (Sec. 19, Rule 5).
684
RUL E 56 P R O VI S I O N A L REMED IE S SEC . 5
The former City Courts and the municipal courts of the

capit als of provinces and sub-provinces could appoint
receivers in the absence of the District Judge (Sec. 88,
R.A. 296).
4. Under the present legislat ion and provided the

main action is wit hin t heir jurisdiction, all inferior courts
can grant all appropriat e provisional remedies, including
the appo int ment of receivers, with the writ of preliminar y
injunct ion being now available in eit her forcible entry or
unlawful det ainer cases. The enforcement of said writs
outside the t errit orial jurisdict ion of the inferior court no
longer requires t he approval of the Regional Trial Court.
It should be noted, however, t hat while support pendente
lite was supposedly available in the inferior courts by force
of Sec. 19 of t hen Rule 5, nevertheless it had been held
t hat the inferior courts could not grant the same since the
main case wher ein said provisio nal remedy could be
involved was wit hin the jurisdict ion of the former Courts
of First Instance (Baito vs. Sarmiento, 109 Phil. 148). It
is submitted t hat the Baito doctrine still applies since B.P. Blg. 129 also re
the jurisdict ion of the inferior court in order t hat it may
gr an t an y of the a fo r esa id pr o vis io na l r e me d i e s .
F u r t h e r m o r e , as her et o for e expla ined, Rule 5 was
expressly repealed by Par. 3 of the Interim or Transit ional
Rules and Guidelines.
5. The present Rules are, further, diverse on when

the a fo r esa id pr o vis io na l r e med ie s ar e a va i la b le .
Preliminar y at t achment and preliminary injunction may
be sought at any stage of the action but before the entry
of final judgment in the case. A petition for receivership
may be filed at any stage of the action or proceeding and
even after final judgment t herein in order to preserve
the property involved or to aid execution or otherwise to
carry the judgment into effect. A writ of replevin must
be applied for before the defendant files his answer.
685
Support pendente lite may be sought at any stage of the

action, and even for the first time on appeal provided the
basis or propriet y thereof was est ablished at the trial, but
obviously before the final judgment in said case on appeal.
6. . In pr eliminar y at t achme n t and in

preliminar y injunct ion, the amount of the bond to be
posted by the applicant is addressed to the sound
discret ion of the court. In receivership, the bond as fixed
by the court is now always r equir ed of the pet it io ner,
whet her or not the appoint ment of a receiver has been
applied for ex parte. In replevin, t he bond to be posted
by the applicant is in an amount double the value of the
personal propert y to be seized. In applicat ions for
support pendente lite, no bond is generally required from
the applicant .
7. In t his regard, the Supreme Court has resolved

t hat effective Sept ember 1, 2003, and unless and until
the court directs ot herwise, the lifetime or durat ion of the
effectivity of any bond issued in civil actions or proceedings
or in any incident t herein shall be from its approval by
the court unt il t he action or proceeding is finally decided,
resolved or t er minat ed. The condit ion must be incor•
porated in the contract or agreement between the party
who pr o cur e d t he bond an d the s ur et y or bo nding
co mpa ny, an d suc h co nt r a c t or a gr e em e n t shall be
submit t ed to the court for approval. The same conditions
shall be deemed incorporated in the contract or agreement
and shall bind the part ies not wit hst anding their failure
to expressly st at e the same t herein.
The suret y or bonding company shall notify the court
concerned and the part ies to the action or proceedings of
any act, event or circumst ance t hat may affect its business
or operat ions. The notice, which shall be given wit hin 10
days from the occurrence of the act, event or circumstance,
shall have as anne xes t her et o certified t rue copies or
aut hent icat ed document s evidencing the same act, event
or circumst ance (A.M. No. 03-03-18-SC, Aug. 5, 2003).
686
RUL E 56 P R O VI S I O N A L R EMEDIE S SEC . 6
Such bonds are also involved in execution pending

appeal and in special proceedings such as appoint ment of
an administ rat or, executor, guardian or t rust ee.
8. As hereinbefore pointed out, the Supreme Court
approved the Rule on Search and Seizure in Civil Actions
for Infr ingement of I nt ellect ual Propert y Rights in its
resolut ion of Ja nu ar y 22, 2002 in A.M. No. 02-1-06-SC
(see Appendix Z). Its provisions may serve to supplement
the corresponding provisional remedy in the limited type
of civil act ions to which it is applicable.
687
RULE 57
PRELIMINARY ATTACHMENT
Sect ion 1. Grounds upon which attachment may

issue. — At t he co m me nc e me n t of the act io n or at
any t ime before ent r y of ju dg me nt , a plaint iff or any
pr o pe r part y may have the pro pert y of the adver se
part y at t ache d as secur it y for the sat isfact io n of
any jud g me n t t hat may be r eco ver ed in t he follow• ing
cases:
(a) In an act io n for the reco ver y of a specified
a mo un t of mone y or damage s, ot he r t ha n mo r al and
exemplar y, on a cause of act ion ar is in g from law,
c o nt r a ct , q u a s i - c o nt r a c t , delic t o r qu a s i- d e l i c t
aga ins t a part y who i s abo u t to d e p ar t from t he
P hilipp ines wit h int en t to defr aud his c r ed it or s;
(b) I n a n a c t i o n for mo n e y o r p r o p e r t y
embezzled or fr audulent ly m is app lie d or co nvert ed
to his own use by a public officer, or an officer of a
co rpor at io n, or an at t o r ne y, factor, broker, agent ,
or clerk, in the cour se of his e mp lo ym ent as such,
or by any ot he r per so n in a fiduc iar y capacit y, or
for a willful vio lat io n of dut y;
(c) In an act io n to r eco ver the possessio n of
pr o pert y unjust ly or fr audulent ly t aken , det ained
o r c o n v e r t e d , whe n t he p r o p e r t y , o r an y par t
thereof, has been concealed, r emo ved or disposed
o f t o p r e ve n t it s be in g fo un d o r t a k e n b y the
applicant or an aut ho r ize d per so n;
(d) In an act ion aga inst a part y who ha s been
g u i lt y o f a fr au d i n c o n t r a c t i n g t he de b t o r
i nc ur r i n g t he obligat io n upo n whic h the act ion i s
bro ught , or in t he per for mance thereof;
688
RUL E 57 P R E L I M IN AR Y ATTACHMEN T SEC .
(e) In an a c t i o n a g a i n s t a p art y wh o ha s
removed or d i sp osed of his property, or is about to
do so, with i nt ent to defraud his credit ors;
(f) In an action again st a party wh o does not
resid e in the Phi li pp in es, or on who m su mmon s may
be served by pu b li cat ion, (la)
NOTE S
1. The former Sec. 1 of Rule 57 has been amended

to make some of its provisions more specific. Thus, the
last time when a writ of preliminar y at t achment may
be sought should be before entry of judgment; Par .
(a) requir es t hat the action should be for recovery of
specified sums, other t han moral or exemplary damages,
arising from any recognized legal source of obligations; in
Par . (b), the pr o per t y mus t have been unju st ly or
fraudulently taken, detained or converted; and in Par. (d),
the fraud may have been committed in incurr ing t he
obligation or in the performance thereof, and the act of
concealing or disposing of the property has been deleted
since t hat is already contemplated in Par. (c).
2. The former Sec. 1(a) of this Rule referred to an
"implied" contract, a term also used in Sec. 5 of Rule 86.
This a m b i g u o u s t er m ha s been e l i m i nat e d by t he
clarificat ion in its present count erpart that the action
cont emplat ed t herein includes one arising from law or
quasi-contract.
The former Sec. 1(d) referred to fraud in contract•
ing t he o bligat io n (dolo causante) and not in the
performance thereof (dolo incidente), hence the issuance
of bouncing checks in payment of the obligation was not
considered as a ground for pr eliminar y at t ac hme n t
(Javellana vs. D.O. Plaza Enterprises, Inc., L-28297,
Mar. 30, 1970). With the present amendment of Par.
(d) to include both kinds of fraud, the former doctrines
689
RULE 67 REM EDIAL LAW CO M P EN DIUM SEC. 1
based on that distinction have been set aside.

It was formerly ruled t hat a court exceeds its
jurisdiction by issuing a writ of preliminary attachment
on the ground stated in Sec. 1(f) where the complaint is
for the recovery of unliquidated damages arising from a
crime or tort. Said ground was declared to be applicable
only where plaintiff's claim is for liquidated damages,
especially since Sec. 3 requires that plaint iffs claim be
over and above all legal counterclaims (Mialhe vs. De
Lencquesaing, et al., G.R. No. 67715, July 11, 1986;
see also Peregrina, et al. vs. Panis, G.R. No. 56011,
Oct. 31, 1984). This doctrine has been modified by the
requirement in Par. 1(a) that the damages be for specific
amounts other than moral or exemplary.
3. Under the Rules, any party, not only the plaintiff,
can avail of preliminary attachment as long as any of the
grounds therefor exists. A defendant on his counterclaim,
a co-party on his cross-claim, and a third-party plaintiff
on his third-party claim may move for the issuance of the
writ.
4. It is also provided that preliminary attachment
may be sought at the commencement of the action and
before entry of the judgment. Hence, the grounds and a
motion for preliminary attachment may be alleged and
incorporated right in a verified complaint; or if not so
alleged, t hereaft er but before ent ry of judgment , a
corresponding motion therefor may be filed in the case.
Where the judgment is already final and executory, a
motion for execution is the remedy.
5. A foreign corporation duly licensed to do business
in the Philippines is not a nonresident within the meaning
of Sec. 1(f), Rule 57, hence, its property here may not be
attached on the mere ground t hat it is a nonresident
(Claude Neon Lights vs. Phil. Advertising Corp., 57 Phil.
607; State Investment House, Inc., et al. vs. Citibank, N.A.,
690
RUL E 57 P R E L I M IN AR Y AT T AC H M E N T SEC . 1
et al, G.R. Nos. 79926-27, Oct. 17, 1991). Insolvency of

the defendant debtor is not a ground for the issuance of
a writ of preliminar y at t achment (Aboitiz & Co., Inc.,
et al. vs. Prov. Sheriff, etc., et al., L-35990, June 17, 1981).
Sec. 1(f), concerning summons by publication, refers to
those cases in Secs. 14 and 16 of Rule 14.
6. . Base d on the ava i la b i l it y and effect s

of at t achment , it may be classified as (a) preliminary,
which is resorted to at the commencement of the action or
at any time before entry of judgment, for the temporar y
seizure of propert y of the adverse part y; and (b) final,
or levy upon execution, which is available after the
judgment in t he main act ion has become execut ory,
and for the satisfact ion of said judgment.
As to form and procedure of enforcement, there is the
regular form of at t achme nt which refers to corporeal
propert y in the possession of the party, and garnishment
which refers to money, stocks, credits and other incorporeal
property which belong to the party but are in the possessio n
or under the control of a third person.
The purposes of preliminary att achment are (a) to
seize the pro pert y of the debtor in advance of final
judgment and to hold it for purposes of satisfying said
judgment, or (b) to enable the court to acquire jurisdict ion
over the action by the actual or constructive seizure of
the property in those instances where personal service of
summons on the creditor cannot be effected (Mabunag
vs. Gallimore, 81 Phil. 354; Quasha, et al. vs. Juan, et
al., L-49140, Nov. 19, 1982). Thus, a proceeding in
attachment is in rem where the defendant does not appear,
and in personam where he appears in the action (Banco
Espahol-Filipino vs. Palanca, 37 Phil. 921). Where a lien
already exists, e.g., a marit ime lien, the same is equivalent
to an attachment (Quasha, et al. vs. Juan, et al, supra),
just like t hat under a real estate mortgage.
691
RULE 57 REM EDIAL LAW C O M P EN DIU M SEC. 1
7. Parenthetically, it will be observed that in these

revised Rules, for accuracy and propriety of terminology,
the order of the court and the writ issued pur suant
t heret o are separat ely ident ified and indicat ed. An
implementing writ may be signed and issued either by
the clerk of court or the presiding judge, but the order can
obviously be signed only by the judge himself. The order
is based on the motion filed therefor and any opposition
thereto, and may or may not contain the specific details
but only the nature of the acts desired by the court. On
the other hand, the writ shall be based on said order and
shall contain the details required by the latt er or the
provisions of the law or Rules governing the same.
Also, on the nomenclature in the Rules involving
registration of writs, processes or documents, the office
involved in or charged therewit h is known as the registry
of deeds, the books where the recordation is made is the
register of deeds, and the official in charge of the office is
the registrar of deeds.
8. In Mangila vs. CA, et al. (G.R. No. 125027,
Aug. 12, 2002), the Supreme Court observed that Rule 57
speaks of the grant of this provisional remedy at the
commencement of the action or at any time thereafter.
Since that phrase refers to the date of the filing of the
complaint, which marks the "commencement of the action,"
the reference is to a time before summons is served on the
defendant, or even before summons was issued.
It then called attent ion to the fact t hat the grant of
the provisional remedy of preliminary attachment involves
three stages, specifically the issuance of the order of the
court granting the application, the issuance of the writ
of preliminary att achment and the implement at ion of
the writ. For the first two stages, it is not necessary
t hat jurisdict ion over the defendant be first obtained.
However, once the implementation of the writ commences,
the court must have acquired jur isd ict ion over the
692
RUL E 57 P R E L I M IN AR Y A T T AC H M E N T SEC . 2
defendant for, wit hout such jurisdict ion, the court has no
power to act in any manner which would be binding on
t hat defendant.
Sec. 2. Issuance and contents of order. — An

o r de r of a t t a c h m e n t ma y be issue d e it he r ex parte
o r upo n mo t io n w it h no t ic e an d h e a r i n g b y t he
Co urt i n whic h t he act io n i s pe nd ing , o r b y the Co urt o
f Ap pe a l s o r t he S u p r e m e Co urt , an d mus t r e q u ir e
t he sher if f o f t he Co ur t t o at t a c h s o muc h o f t he
p r o p e r t y i n t he P h i l i p p i n e s o f t he p a r t y a g a i n s t who
m i t i s issued , no t exe mp t from exe cut io n , a s ma y b
e suffic ient t o sat isfy t he a p p l i c a nt ' s d e m a n d , unle s s
suc h part y ma k e s depo s i t or gives a bo n d as
h e r e i n a f t e r p r o vid e d i n a n a m o u n t equa l t o t hat
fixe d i n t he o r d e r , w h i c h ma y b e t he a m o u n t
suffic ient t o sat isfy t he a p p l i c a nt ' s d e m a n d o r the
va lu e of t he p r o p e r t y t o be a t t a c he d as st at e d by
the a p p l i c a nt . S e ver a l wr it s ma y b e issue d a t the
sam e t im e t o the sher iffs of the co urt s of d iffer e nt
ju d ic ia l r e g io ns . (2a)
NOTES
1. A writ of preliminar y att achment may be sought

and issued ex parte (Filinvest Credit Corp. us. Reloua, et
al, G.R. No. 50378, Sept. 30, 1982). Unlike preliminar y
injunction which cannot now be issued ex parte (Sec. 5,
Rule 58), notice and hear ing are not required in the
issuance of a wr it of preliminar y at t achment (Belisle
Investment and Finance Co., Inc. vs. State Investment
House Inc., G.R. No. 71917, June 30, 1987).
2. Property exempt from execution is also exempt
from preliminar y at t achment or gar nishment (Sec. 5).
Gar nishment does not lie against the funds of the regular
depart ment s or offices of the Government, but funds of
public corporat ions are not exempt from garnishment
693
RULE 57 REM EDIAL LAW C O M P END IU M SEC. 3
(PNB vs. Pabalan, et al, L-33112, June 15, 1978).
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 wh o p erson ally kn ow s the facts, that a
sufficient cause of action exist s, 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 count erclai ms. The affidavit, and
the bond required by the next su cceedi ng section,
must be duly filed with the clerk of the court before
the order issues. (3a)
NOTES
1. For a writ of att achment to be valid, the affidavit

filed therefor must contain all the allegations required in
Sec. 3 of this Rule. Failure to do so renders the writ totally
defective as the judge issuing the writ acts in excess of
jur isd ict io n (K.O. Glass Construction Co., Inc. vs.
Valenzuela, et al, L-48756, Sept. 11, 1982).
2. Where the obligation was duly secured by a real
estate mortgage, but the mortgagee instead of foreclosing
filed an ordinary action to recover the sum of money
involved, it is not entitled to a writ of preliminary attach•
ment since Sec. 3 of this Rule authorized the same only if
there is no other sufficient security for the plaintiffs claim
(Salgado vs. CA, et al, G.R. No. 55381. Mar. 26, 1984).
3. Under Sec. 3 of this Rule, the only requisites for
the issuance of the writ of preliminary attachment are
the affidavits and bond of the applicant. No notice to the
adverse party or hearing of the application is required, as
694
RUL E 57 P R E L I M IN AR Y ATTACHMEN T SEC . 4
the time which the hearing will entail could be enough to

enable the defendant to abscond or dispose of his propert y
before the writ of preliminar y att achment issues.
To repeat , the grant of the provisional remedy of
att achment basically involves t hree stages: first, the court
issues the order grant ing the applicat ion; second, the writ
issues pur suant to the order grant ing the same; and, third,
the writ is implement ed. In the first two stages, it is not
ne ce s s ar y t hat jur is d ict io n over t he per so n of t he
defendant should first be obtained. However, to validly
i mp le me n t the writ , the court mus t have acqu ir ed
jur isd ict io n over the defendant , ot herwise i t has no
authorit y to act (Cuartero vs. CA, et al., G.R. No. 102448,
Aug. 3, 1992). This was subsequent ly reit erat ed and
explained in Mangila vs. CA, et al., supra.
Sec. 4. Condition of applicant's bond. — The par t y

a p p l y i n g for t he o r de r mus t t he r e a ft e r give a bon d
e xec ut e d t o t he a d ve r s e part y i n the a mo u n t fixed
b y the Co ur t i n its o r de r g r a nt i n g the is s ua nc e o f
the wr it , c o nd it io ne d t hat the lat t e r will pa y all the
co st s whic h ma y b e ad judg e d t o the a d ve r s e part y
an d all d a m a g e s whic h h e ma y s u st a i n b y r ea so n o f
the a t t a c h m e n t , i f the Co urt shall finally a d ju dg e
t hat t he a p p l i c a n t wa s not ent it le d t he r et o . (4a)
NOTES
1. The bond posted by the attaching creditor responds

for the damages and costs which may be adjudged to the
ad ver s e par t y ar is in g from and by r easo n of the
att achment . Consequent ly, there must be a finding in
the decision of the court imposing such liability and the
costs shall only be those arising from the attachment itself
and not the other judicial costs t hat may be imposed
against the losing party (Rocco vs. Meads, et al., 96 Phil.
885). The rule is different with respect to a counterbond
695
RULE 57 REM EDIAL LAW CO M P EN DIU M SEC. 5
for the discharge of an attachment under Sec. 12, infra,

which answers for the judgment account and the costs.
2. Generally, the liability on the attachment bond
provided for in this section is limited to actual damages,
but moral and exemplary damages may be recovered where
the attachment was alleged and proved to be malicious.
Such liability of the bond exists even if the attachment
has been dissolved, whether by the filing of a counter-
bond or by proof t hat the att achment was irregularly
issued, as long as the court shall finally adjudge that the
attaching party was not entitled thereto (Calderon vs.
IAC, et al., G.R. No. 74696 and First Integrated Bonding
& Insurance Co., Inc. vs. IAC, et al, G.R. No. 73916, jointly
decided on Nov. 11, 1987; see BA Finance Corp. vs. CA, et
al, G.R. No. 61464, May 29, 1988).
3. There is no rule allowing substitution of attached
propert y alt hough an at t achment may be discharged
wholly or in part upon the securit y of a counter-bond
offered by the defendant upon application to the court,
with notice to and after hearing the attaching creditor; or
upon applicat ion of the defendant, with notice to the
attaching creditor and after hearing, if it appears that
the att achment was improperly or irregularly issued. If
an attachment is excessive, the remedy of the defendant
is to apply to the court for a reduction or partial discharge
and substitution of the attached properties. Otherwise,
the lien acquired by the plaintiff creditor as of the date of
the original levy would be lost and this would, in effect,
constitute a deprivation without due process of law of the
attaching creditor's interest in the attached property as
securit y for the satisfaction of the judgment which he
may obtain (Santos, et al. vs. Aquino, Jr., etc., et al, G.R.
Nos. 86181-82, Jan. 13, 1992).
Sec. 6. Manner of attaching property.— The sheriff

enforcing the writ shall without delay and with all
696
r e a s o na b l e d i l ig e nc e at t ac h , t o awai t j u d g m e n t an d
e x e c u t i o n i n t he a c t i o n , o nl y s o m u c h o f t he
p r o p e r t y i n t he P h i l i p p i n e s o f t he pa r t y a g a i n s t
who m the wr i t i s issu ed, no t exe mp t from e xec ut io n ,
a s ma y b e s u f f i c i e n t t o sat is f y t he a p p l i c a n t ' s
d e ma nd , unle s s t he fo r mer mak e s a dep o si t wit h the
C o u r t fro m w h i c h t he wr i t i s is s u e d , o r give s a
c o u n t e r - b o n d e x e c u t e d t o t he a p p l i c a n t , i n a n
a mo u n t equa l t o the bo nd fixed b y the Co urt i n the
o r de r o f a t t a c h m e n t o r t o the valu e o f the p r o p er t y
t o b e a t t a c h e d , e x c l u s i v e o f c o st s . N o lev y o n
a t t a c h m e n t p u r s u a n t t o t he wr i t is s u e d U N D E R
s e c t io n 2 h e r e o f sha l l b e e n f o r c e d u n l e s s i t i s
p r e c e d e d , o r c o nt e mp o r a ne o u s l y a c c o m p a n i e d , b y
se r vic e of s u m m o n s , t o g e t he r wit h a copy of t he
c o m p l a i n t , t he a p p l i c a t i o n for a t t a c h m e n t , t he
a p p l i c a nt ' s a ffidavit an d bo nd, an d the o r de r an d
wr i t o f a t t a c h m e n t , o n the d e f e n d a n t w it h in t he
Philip p ine s .
The r e q u i r e m e n t o f pr io r o r c o nt e m p o r a n e o u s
s e r v i c e o f s u m m o n s s ha l l no t a p p l y w he r e t he
s u m m o n s co ul d no t b e ser ve d p e r s o n a l l y o r b y
s u b s t it u t e d ser vic e d e sp it e d il ige n t effort s, o r the
d e fe nd a n t i s a r e s id e n t of the P h i l i p p i ne s t e mp o r a •
rily a bs e n t t he r e fr o m , or the d e fe nd a n t i s a non •
r e s id e n t of the P h i l i p p i n e s , or the a ct io n i s on e in rem
or quasi in rem. (6a)
Sec. 6. Sheriff's return. — Aft er e nfo r c i n g the wr it ,

the sher iff mus t likewise w it ho u t dela y mak e a
r e t u r n t he r e o n t o the Co urt from whic h the wr i t
is s u e d , wit h a full s t a t e m e n t of hi s p r o c e e d i n g s
U N D E R t he wr i t an d a co mp l e t e in ve nt o r y o f t he
p r o p e r t y a t t a c h e d , t o g e t h e r wit h an y c o u n t e r -
bo n d g ive n b y t he p a r t y a g a i n s t w ho m a t t a c h •
me n t i s is s ue d , an d ser v e co pie s t h e r e o f o n t he
a p p l i c a nt .
697
RULE 57 REM EDIAL LAW CO M PE NDI U M SEC. 6
NOTES
1. Sec. 5 now complements the prohibition against

excessive att achment on the adverse party's property by
providing t hat levy on att achment shall be limited only to
so much of the property as may be sufficient to satisfy the
applicant's demand.
More importantly, in view of controversies in previous
rulings on whet her levy on at t achment may be made
although jurisdiction over the affected party has not been
obtained, it is now required that such levy shall not be
made unless preceded or contemporaneously accompanied
by service of summo ns t o get her wit h a copy of the
complaint, application for attachment, affidavit and bond
of the applicant, and the writ of attachment .
The exception from such requir ement of prior or
contemporaneous service of summons are stated in the
second paragraph of the section, and the reasons therefor
are obvious.
2. The attaching officer must serve a copy of the
applicant's affidavit, so that the adverse party may contest
the grounds for the attachment , and there must also be
service of a copy of the applicant's bond, so that the other
party may except to the sufficiency thereof. This duty is
imposed on said officer even if such adverse party is not
found within the province, unlike the condition to that
effect in the former Rule in view of such a provision in
Sec. 5 thereof which has been eliminated in the present
revision.
3. The deposit or bond required of the attaching party

shall be in the amount fixed by the court in the order of
attachment, or equal to the value of the property to be
attached. The latter alternative may be resorted to where
the attaching party shows to the court that he was only
able to locate property of the opposing part y which is
insufficient in value to satisfy his claim and/or as initially
698
determined by the court based on the amount of such claim.

It would be too demanding to require the attaching part y
to make a deposit or post a bond equal to the full amount
of his claim where the verified leviable property may only
be worth much less t han said claim. He is t hus permitted
to make a deposit or file a bond only for the lower value.
Under Sec. 2 of t his Rule, he may t hereaft er move for
anot her writ of att achment , in which case he must again
make the corresponding deposit or file the appropriate bond
for t hat purpose, t aking into account the value of the
addit ional propert y he seeks to attach.
Sec. 7. Attachment of real and personal property;

recording thereof. — Real an d p er s o na l pr o p e r t y shal l
b e a t t a c he d b y t he s her iff e xe c u t i n g the wr i t i n the
fo llo w ing ma n n e r :
(a) Rea l p r o p er t y , o r gr o w in g cr o p s t he r e o n ,
o r an y i nt e r e s t t he r e i n , s t a nd i n g upo n the r e c o r d s
of the r eg ist r y of deed s of the pro vinc e in the nam e
o f the p ar t y a g a i n s t who m a t t a c h m e n t i s is sued, o r
no t a p p e a r i n g a t al l u p o n s u c h r e c o r d s , o r
be lo ng i n g t o t he par t y a g a in s t who m a t t a c h m e n t
i s issue d an d held b y an y ot he r per so n , o r st a nd i n g
o n the r e c o r d s o f t he r eg ist r y o f deed s i n t he na m e
of an y o t he r per so n , by filing wit h the r egist r y of
d e e d s a co p y o f t he o r d e r , t o g e t h e r w it h a
d e s c r ip t io n of the p r o p er t y a t t a c he d , an d a not ice
t hat i t i s a t t a c he d , o r t hat suc h rea l p r o p e r t y an d
any int er e s t t he r e i n held by or st a nd i n g i n the nam e
of suc h ot he r per so n ar e a t t a c he d , an d by ha vi n g a
copy of suc h or der , descr ipt io n , an d not ice wit h the
o c c u p a n t of the p r o p e r t y , i f any, or wit h suc h ot he r
per so n or his age n t i f found w it hin the pr o vinc e .
Wher e t he p r o p e r t y ha s bee n br o u g h t U N DE R t he
o p er at io n of e it he r the Land R eg is t r at io n Act or the
P r o p e r t y R e g i s t r a t i o n D e c r e e , t he no t ic e sha l l
co nt ai n a r e fe r e nc e to the nu mbe r of the cer t ific at e
699
RULE 57 REM EDIAL LAW CO M PEN DI U M SEC. 7
of t it le, the vo lu me an d page in the r eg is t r at io n book

wher e the cert ificat e i s r eg ist er ed , an d the
r eg ist er ed o wne r or o wner s t hereof.
The r e g is t r a r of deeds mus t index a t t a ch m e nt s
filed U N D E R t hi s s e c t io n i n t he n a m e s o f t he
applicant , the adver s e part y, or the per so n by whom
the pr o per t y is held or in who se nam e i t st and s in
the r eco r ds . I f the a t t a c h m e n t i s not cla imed on t he
ent ir e are a of the land co ver ed by the cert ificat e of
t it le, a des cr ipt io n suffic ient ly a cc ur at e for the
ide nt ific at io n of the land or int er es t to be affected
s ha l l b e i n c l u d e d i n t he r e g i s t r a t i o n o f suc h
a t t a c h m e nt ;
(b) P e r s o n a l p r o p e r t y c a p a b l e o f m a n u a l
de l i ve r y , by t a k i n g an d safely k e e p i n g i t in his
cust o dy , aft er is s u in g the c o r r e s p o n d i n g r ece ip t
t her efor ;
(c) St ocks or shar es , or an int er es t in stocks
o r s h a r e s , o f an y c o r p o r a t i o n o r c o m p a n y , b y
l e a v i n g w it h t he p r e s i d e n t o r m a n a g i n g age n t
t hereof, a copy of the writ , an d a not ice st at in g t hat
t he stock or int er es t of the part y aga ins t who m the
a t t a c h m e n t is issued, is at t ac he d in pu r s u a nc e of
such wr it ;
(d) Debt s and cr edit s, inc lud ing ban k depo sit s,
financial int er est , ro yalt ies, co mmis s io ns an d ot her
per so na l pr o per t y not capable of ma nu a l deliver y,
by lea ving wit h the per so n o win g suc h debt s , or
ha vin g in his po ssessio n or UNDE R his c o nt ro l, such
c r e d it s o r o t he r p e r s o n a l p r o p e r t y , o r wit h his
agent , a copy of the wr it , an d not ice t hat the debt s
owing by hi m to the part y agains t who m at t a c hme n t
i s is s u e d , an d t he c r e d i t s an d o t he r p e r s o n a l
pr o per t y in his po ssess io n, or UNDE R his co nt ro l,
be lo nging to said part y, ar e at t ac he d in p u r s u a nc e
of such writ ;
700
RULE 57 PRELIMINARY ATTACHMENT SEC. 7
(e) The i n t e re s t of the party agai n s t wh o m

at t ach men t i s i ssued in propert y b elon gin g to the
estate of the d eced en t , wh et h er as heir, legatee, or
d evi see, by servi n g the executor or ad mi n i st rat o r
or ot h er p erson al rep re s en t at i ve of the d eced en t
with a copy of the writ and noti ce, that said i n t erest
is att ached. A copy of said writ of at t ach men t and
of said n otice shall also be filed in the office of th e
clerk of the Cou rt in wh i c h said est at e i s b ein g
sett led and served upon the heir, legatee or d evi see
con ce rn ed .
If the p rop e rt y sou gh t to be at t ach e d i s in
custodia legis, a copy of the writ of att ach men t shall
be filed wit h the p rop e r cou rt or qu a si - j u d i c i a l
agen cy, and notice of the att ach men t served upon
the cu st od i an of such property. (7a)
NOTES
1. Par. (a) of this section is a consolidation of Pars,

(a) and (b) of the former section. Par. (d) spells out the
incorporeal properties subject of garnishment which, aside
from stocks or shares and debts or credits which were
provided in the former Rule, should include bank deposits,
financial int er est , ro yalt ies, co mmiss io ns and ot her
personal property not capable of manual delivery.
2. Pars, (c) and (d) of Sec. 7 refer to garnishment
and provide for the procedure therefor. By such notice
of gar nis hme nt , the court acquires jur isdict io n over
the garnishee and the latter becomes a forced intervenor
in the case. The garnishee remains in possession of
the pr o pert y gar nis hed but holds i t subject to the
ult imat e disposit ion thereof by the court. It result s
in an involuntar y novation by change of creditors (see
Tayabas Land Co. us. Sharuff, 41 Phil. 382).
701
RUL E 57 REM EDIAL LAW CO M PE NDI U M SEC. 7
3. In the case of salaries, the same can be attached

only at the end of the month or on the payday provided
by contract or law, as, prior thereto, the same do not
constitute money "due" to the debtor from his employer
(see Garcia vs. Castillo, 43 Phil. 364). Furthermore, if
the employer is the Government, before payday, such
funds are public funds and are exempt from attachment
or execution.
4. Goods imported into the country, while in the
possession of the Collector of Customs and before the duties
thereon have been paid, cannot be attached since the
customs authorities have exclusive jurisdiction thereof and
such writ of att achment would const itute the Collector of
Customs as bailee over said goods, a duty incompatible
with his dut ies under the Tariff and Customs Code
(Virata, et al. vs. Aquino, et al, L 35027, Sept. 10, 1978).
5. When the Government enters into commercial
business, it abandons its sovereign capacity and is to be
t reat ed like any other corporat ion (Malong vs. PNR,
et al., L-49930, Aug. 7, 1985). Consequently, its funds
may be subject to a duly issued writ of garnishment
(PNB vs. CIR, et al, L-32667, Jan. 31, 1978; PNB vs.
Pabalan, L 33112, June 15, 1978) or writ of execution
(PNR vs. Union de Maquinistas, L-31948, July 25, 1978);
but the public funds of a municipality are not subject to
levy or execution if intended for a public purpose and such
funds cannot be disbursed without a lawful appropriation
or statutory aut horit y as required by P.D. 477 (Mun. of
San Miguel vs. Fernandez, G.R. No. 61744, June 25,
1984). Even where the immunit y of the State from suit
is relaxed, the power of the court ends when judgment is
rendered and the State is at liberty to determine whether
or not to appropriate funds for the satisfaction of the
judgment (Republic vs. Palacio, et al, L 20322, May 29,
1968), as the rule in this jurisdiction is t hat the State is
liable only for torts caused by its special agents specifically
702
commissioned to perform acts outside their regular duties,

as provided for in Art. 2180 of the Civil Code (Meritt vs.
Insular Gov't, 34 Phil. 311; Rosete vs. Auditor General,
81 Phil. 453). Where, however, a judgme nt on com•
promise, based on cont ract ual undert akings, has been
rendered against a city government and an ordinance has
been enacted for the payment thereof, the deposit of the
city gover nment with the PNB can be levied upon on
execut ion (Pasay City Gov't vs. CFI, et al., L-32162,
Sept. 28, 1984; City of Caloocan, et al. vs. Allarde, etc., et
al, G.R. No. 107271, Sept. 10, 2003).
6. Where the propert y attached by the judgment

creditor had previously been mortgaged, the judgment
creditor's lien is inferior to t hat of the mortgagee which
must first be sat isfied in the event of foreclosure. In
realit y, what was attached by the judgment creditor was
merely the judment debtor's right or equity of redempt ion
(Top Rate International Services, Inc. vs. IAC, et al,
G.R. No. 67496, July 7, 1986).
7. Propert y legally attached is property in custodia
legis and cannot be interfered with without the permission
of the proper court, but this is confined to cases where the
propert y belongs to the defendant or one in which the
defendant has propriet ary int erest (Traders Royal Bank
vs. IAC, et al, G.R. No. 66326, Oct. 21, 1984). For a
furt her discussion of the effects of a duly regist ered
preliminary att achment and the rights of the attaching
creditor t hereunder, see Consolidated Bank & Trust Corp.
vs. IAC, et al. (G.R. No. 73976, May 29, 1987), and Note 9
8. Regarding att achment of real property, see also
Sec. 69, P.D. 1529, or the Property Registration Decree.
9. The procedure for levy on at t achment on the
different classes of property mentioned here is also the
procedure to be followed in levy on execution. In fact, as
703
RULE 57 REM EDIAL LAW CO M P EN DI U M SEC. 8
stated at the outset, the latt er is also known in some

jurisdictions as final attachment.
Sec. 8. Effect of attachment of debts, credits and all

other similar personal property. — All per so n s ha vin g in
t hei r possessio n o r UNDE R t he i r co nt ro l any
cr ed it s or ot he r similar per so na l pr o per t y be lo ng ing
t o the part y agains t who m a t t a c h m e n t i s issued, or
owing any debt s to him, a t the t ime of ser vice upo n
t he m of the copy of the wr it of a t t a c h m e n t an d not ice
as pro vided in t he last pr eced in g sect ion, shall be
liable t o the a p p l i c a n t for the a mo u n t of suc h cr ed it s
, debt s o r ot he r similar per so na l p r o per t y , unt il t he
a t t a c h m e n t i s d i s c h a r g e d , o r an y j u d g m e n t
r eco ver ed by hi m i s sat isfied, unle s s such pr o pert y
i s de l iver ed or t r a ns fe r r e d , or such debt s ar e paid,
to the clerk, sher iff or ot he r pr o pe r officer of the
co urt is su ing the at t a c h me nt . (8a)
NOT E
1. Gar nis h me n t is a species of at t ac hm e n t for

reaching property or credits pertaining or payable to a
judgment debtor. It results in a forced novation by the
substitution of creditors, that is, the judgment debtor who
is the original creditor of the garnishee is, through service
of the writ of garnishment, subst it uted by the judgment
creditor who thereby becomes the creditor of the garnishee.
Garnishment has also been described as a warning to a
person, who has in his possession property or credits of
the judgment debtor, not to pay the money or deliver the
property to the latter but to instead appear and answer
the plaint iffs suit.
It is not necessary to serve summo ns upon the
garnishee in order t hat the trial court may acquire
jurisdiction to bind him. He need not be impleaded as a
party to the case. All that is necessary is the service upon
him of the writ of garnishment, as a consequence of which
704
RUL E 57 P R E L I M IN AR Y AT T A C H M E N T S E C S . 9 -10
he becomes a virtual part y or a forced int ervenor in the

case and the trial court thereby acquires jurisdict ion to
require compliance by him with all its orders and processes
(Perla Compania de Seguros, Inc. us. Ramolete, et al., G.R.
No. 60884, Nov. 13, 1991).
Sec. 9. Effect of attachment of interest in property

belonging to the estate of a decedent. — The a t t a c h m e n t
of the i nt e r e s t of an heir , or devisee i n the p r o p e r t y
b e l o n g i n g t o t he e s t a t e o f a d e c e d e n t sha l l no t
i mp a i r the po wer s o f the exec ut o r , a d m i n i s t r a t o r ,
o r o t he r p e r s o na l r e p r e s e n t a t i v e o f t he d e c e d e n t
o ve r suc h p r o p e r t y for t he p u r p o s e o f a d m i n i s •
t r a t io n . S uc h p e r s o na l r e p r e s e nt a t i v e , ho w e ve r ,
sha ll r e p o r t t he a t t a c h m e n t t o the Co ur t whe n an y
pet it io n for d i s t r i b u t io n i s filed, an d in t he o r de r
m a d e u p o n suc h p e t i t i o n , d i s t r i b u t i o n ma y b e
a w a r d e d t o suc h he ir , legat ee, o r devis ee, bu t the
p r o p e r t y a t t a c h e d shal l b e o r d e r e d de l i ver e d t o the
sher iff m a k i n g t he levy, su bject t o the cla i m of suc h
he ir , leg at ee , o r dev is e e , o r an y p er s o n c la i m i n g
U N D E R him . (9a)
Sec. 10. Examination of party whose property is

attached and persons indebted to him or controlling his
property; deliuery of property to sheriff. — Any p er so n
o win g de bt s t o the par t y who s e pr o per t y i s a t t a c he d
o r ha v i n g i n his po s se s s io n o r UNDE R his co nt ro l an
y cr ed i t o r ot he r p e r so na l pr o per t y be lo ng i n g t o suc h
par t y , ma y b e r e q u ir e d t o at t en d before the Co urt i
n w h i c h t he a c t i o n i s p e n d i n g , o r be fo r e a
c o m m i s s i o n e r a p p o i n t e d b y t he c o u r t , an d b e
e xa m i ne d o n o at h r e s p e ct i n g the sa me. The part y
who s e p r o p e r t y i s a t t a c he d may also be r e q u ir e d to
a t t e n d for t he p u r p o s e o f g i v i n g i n f o r m a t i o n
r e s p e c t i n g hi s p r o p e r t y , an d may b e e xa m i ne d o n
oat h. The Co urt may, aft er such e xa m i n at io n , o r de r
705
p erson a l p rop e rt y cap ab l e o f man u a l d eli ve ry

belonging to him, in the possessi on of the person
so re q u i re d to at t en d b efore the cou rt , to be
delivered to the clerk of the court, or sheriff on such
terms as may be just, having reference to any lien
t h ereon or clai m agai n st the same, to await the
judgment in the action. (10a)
NOTES
1. The proceeding here is similar to the examination

of the judgment obligor and of the obligor of such judgment
obligor authorized in Secs. 36 and 37, Rule 39. However,
the said proceeding in Rule 39 is proper only when the
writ of execution is ret urned unsatisfied. Under this
section, the examinat ion is not subject to a preliminary
condition but is anticipatory in nature and may be resorted
to even if the writ of att achment was not returned because
no property could be found to be levied upon thereunder.
Of course, if the attaching part y has succeeded in locating
property of the adverse party sufficient for purposes of
the projected levy, it would be unneccessary for him to
resort to the examinat ion contemplated in this section.
2. If the garnishee does not admit the indebtedness

or he claims the propert y, the co nt roversy must be
determined in an independent action (Bucra Corp. vs.
Macadaeg, 84 Phil. 493), and the court which issued the
writ of att achment cannot compel the garnishee to appear
before it for examinat ion, as Sec. 10 applies only where
the garnishee admit s having in his possession property
belonging to the defendant (MERALCO vs. Genbancor
Dev. Corp., L-41756, July 30, 1976). The att aching
creditor may resort to modes of discovery.
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
706
RUL E 57 P R E L I M IN AR Y A T T A C H M E N T SEC . 1 2
act io n i s p e nd i ng , upo n h e a r i n g wit h not ic e t o bot h

p a r t ie s , t hat t he p r o p e r t y a t t a c he d i s p e r i s h a b l e , o r
t hat t he i n t e r e s t s o f all t he p a r t i e s t o the act io n will
be s u bs e r ve d by t he sale t her eo f, t he Co urt may , o n
mo t io n , o r de r suc h p r o p e r t y t o b e sold a t publ i c a u c t io
n i n suc h m a n n e r a s i t ma y d ir ect , an d the p r o c e e d s t o
b e d e p o s i t e d i n C o u r t t o a b i d e t he j u d g m e n t i n t he
act io n . (11a)
Sec. 12. Discharge of attachment upon giving counter-

bond. — Aft er a wr i t of a t t a c h m e n t ha s bee n en •
forced, t he par t y who s e pr o p er t y ha s bee n a t t a c he d ,
o r the p e r s o n a p p e a r i n g o n hi s behalf, ma y mo v e
for t he d is c ha r g e o f t he a t t a c h m e n t who lly o r i n
par t o n t he sec ur it y given. The Co urt sha ll, aft er du
e no t ic e an d he a r i ng , o r de r the d i s c ha r g e o f the
a t t a c h m e n t i f t he mo va n t ma ke s a cas h depo s it , or
files a c o u nt e r - bo n d e xe cut e d to the a t t a c h i n g par t y
wit h t he cler k o f t he Co urt wher e the a p p l i c a t io n i s
made , i n a n a m o u n t equa l t o t hat fixed b y t he Co urt
in t he o r de r of a t t a c h m e n t , exc lu s ive of co st s. Bu t i
f t he a t t a c h m e n t i s so ugh t to be d is c ha r g e d wit h
r e s p e c t to a p a r t i c u l a r p r o p e r t y , the c o u nt e r - bo n d
sha l l b e e q u a l t o t he va l u e o f t ha t p r o p e r t y a s
d e t e r m i n e d b y the co ur t . I n e it he r case, the cas h
d e p o s i t o r t he c o u n t e r - b o n d s ha l l s e c u r e t he
p a y m e n t o f an y j u d g m e n t t h a t t he a t t a c h i n g par t
y ma y r eco ve r in the act io n. A not ice of the depo s i t
sha ll fo r t hw it h b e ser ved o n the a t t a c hi n g p ar t y . Upo
n t he d is c h a r g e o f a n a t t a c h m e n t i n a c c o r d a nc e wit h
the pr o vis io n s o f t hi s sect io n, the p r o p e r t y a t t a c h e d ,
o r t he p r o c e e d s o f an y sal e t hereo f, sha ll b e de l i ver e d
t o the par t y ma k i n g the depo s i t o r giving the co u nt er -
bo nd , o r t o the per so n a p p e a r i n g o n hi s behalf, the
depo s i t o r co u nt e r - bond a fo r esa id s t a nd i n g in place
of the p r o p er t y so r elea sed. S ho ul d such co u nt e r -
bo n d for an y r easo n
707
RULE 57 REM EDIAL LAW CO M P EN DIU M SEC 13
be found to be or become insufficient, and the party

f u rn i s h i n g the sam e fail to file an ad d i t i on a l
counter-bond, the attaching party may apply for a
new order of attachment. (12a)
Sec. 13. Discharge of attachment on other grounds.

— The party whos e p rop ert y 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 discharge the attachment on
the grou n d that the sam e wa s i m p r o p e r l y o r
irregularly issued or enforced, or that the bond is
insuffi cient. If the at t ach men t is excessi ve, the
d i sch arge shall be limited to the e xc ess. If the
motion be made on affidavits on the part of the
movan t but not ot h e rwi se , the a t t a ch i n g party
may op p os e the mot i o n b y c o u n t e r - a f f i d a v i t s
or other ev i d e n c e in add i t i on to that on wh i ch
the att ach ment was made. After due notice and
h earin g, the court shall order the se t t i n g aside
or the corresp on din g 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. (13a)
NOTES
1. Preliminary attachment shall be discharged when
it is established that -
(a) The debtor has posted a counter-bond or has made
the requisite cash deposit (Sec. 12);
(b) The att achment was improperly or irregularly
issued (Sec. 13) as where there is no ground for attachment
(see Sec. 1), or the affidavit and/or bond filed therefor are
defective or insufficient (Sec. 3);
708
RUL E 57 P R E L I M IN AR Y AT T AC H M E N T SEC . 1 3
(c) The att achment is excessive, but the discharge

shall be limited to the excess (Sec. 13);
(d) The property attached is exempt from execution,
hence exempt from preliminar y at t achment (see Secs. 2
and 5); or
(e) The judgment is rendered against the att aching
creditor (see Sec. 19).
2. Where the att achment is challenged for having

been illegally or improperly issued, t her e must be a
hear ing, with the burden of proof to sustain the writ being
on the at t aching creditor (Filinvest Credit Corp. vs.
Relova, supra; Benitez vs. IAC, et al., G.R. No. 71535,
Sept. 15, 1987; Mindanao Savings & Loan Association,
Inc. vs. CA, et al., G.R. No. 84481, April 18, 1989). An ex
parte discharge or suspension of the at t achme nt is a
disservice to the orderly administ rat ion of just ice and
nullifies the underlying role and purpose of preliminary
attachment in preserving the rights of the parties pendente
lite as an ancillary remedy (Peroxide Philippines Corp.,
et al. vs. CA, et al., G.R. No. 92813, July 21, 1991).
3. Unlike the bond posted for the issuance of a writ

of preliminary at t achment , which responds for damages
result ing from the att achment (Sec. 20), the counter-bond
posted for the discharge of such at t achment responds for
the payment of the judgment recovered by the attaching
creditor (Sec. 17), regardless of t he wordings of t he
bond, as this liabilit y is deemed incorporat ed t herein
(Leelin Marketing Corp. vs. C & S Agro Dev. Co., et al., L-
38971, April 28, 1983). An order for the execution of the
judgment pending appeal can also be enforced against said
counter-bond (see Phil. British Assurance Co., Inc. vs. IAC,
et al., G.R. No. 72005, May 29, 1987; Note 11 under Sec.
4, Rule 39).
4. The merits of the complaint are not triable in a
motion to discharge an attachment, otherwise an applicant
709
for the dissolution of the writ could force a trial on the

merits of the case on the strength alone of such motion
(Consolidated Bank and Trust Corp. vs. CA, et al., G.R.
No. 84588, May 29, 1991).
5. Thus, when the preliminary attachment is issued
upon a ground which also constitutes the applicant's cause
of act ion, such as an act ion for money or propert y
embezzled or fraudulent ly converted by the defendant,
he is not allowed to move for the disso lut ion of the
attachment under Sec. 13 of this Rule by offering to show
the falsity of the averment s in the applicant's motion and
supporting documents since the hearing on that motion
for dissolution would be tantamount to a trial on the merits
in the main action (Chuidian vs. Sandiganbayan, G.R.
No. 139941, Jan. 19, 2000). A similar doctrinal rule
obtains in preliminary injunction (see Note 7 under Sec.
1, Rule 58).
Sec. 14. Proceedings where property claimed by third

person. — If the pr o p er t y t ake n is c la imed by any
p e r s o n o t h e r t h a n t he p a r t y a g a i n s t who m
a t t a c h m e n t ha d been issued o r his agent , an d such
per so n make s an affidavit of hi s t it le t he r et o , or
r igh t t o the po ssess io n t hereof, st at in g the gro und s
of such r igh t or t it le, an d ser ves suc h affidavit upon
the sher iff while t he lat t e r ha s po sses s io n of t he
a t t a c he d p r o p e r t y , an d a copy t he r eo f upo n the
a t t a c hi n g obligee, the sher iff shall not be bo un d to
kee p the p r o p e r t y U N D E R a t t a c h m e n t , unle s s the
a t t a c h i n g par t y o r hi s ag e nt , o n d e m a n d o f the
sheriff, shall file a bond appr o ve d by the Co urt to
idemnify t he t h ir d - p a r t y c la ima n t in a su m not less
t ha n t he va lu e o f the p r o p e r t y levied u po n . I n case
of d i s a g r e e m e n t as to suc h va lue , the same shall be
dec ide d by the Co ur t issu in g the wr it of a t t a c hme nt .
No claim for da ma ge s for the t akin g or keepin g of
the pr o per t y may be enfo r ced against
710
the bond u n less the action therefor i s filed within

one h u n d red t wen t y (120) days from the date of the
filing of the bond.
The sheri ff shall not be liable for d amages, for
the t aki ng or keep i n g of such property, to any such
t hi rd -part y clai man t , i f such bond shall be filed.
N o t h i n g h e r e i n c o n t a i n e d sh al l p r e v e n t su c h
clai mant or any third person from vi n d i cat i n g his
clai m to the p rop ert y, or p reven t the at t a ch i n g
party from c lai mi n g d a mages agai n st a third-part y
clai mant wh o filed a frivolous or plainly spu ri ou s
claim, in the same or a separate action.
When the writ of attach ment is issued in favor
of the R ep u b li c of the Ph i li p pi n es, or any officer
duly rep re sen t i n g it, the filing of such bond shall
not be req ui red, and in case the sheriff is sued for
d amage s as a resu lt of the at tach ment, he shall be
rep resen t ed by the Solicitor Gen eral, and i f held
liable therefor, the actual d amages adjudged by the
court shall be paid by the National Treasu rer out
of the fund s to be app rop ri at ed for the p u rp ose.
(14a)
NOTES
1. See Sec. 16, Rule 39 for a substant ially ident ical

procedure where propert y levied upon on execut ion is
claimed by a third person.
2. Where t he propert y of a defendant has been
attached, a t hird part y claiming an int erest therein can
maintain a separate action to vindicate his interest over
the property and the injunctive relief granted in the latter
case does not const itute an interference with the writ of
attachment issued by the other court as this procedure is
sanctioned by Sec. 14 of Rule 57 (Traders Royal Bank vs.
IAC, et al., G.R. No. 66321, Oct. 31, 1984).
711
RULE 57 REM EDIAL LAW CO M PE NDI U M SECS. 151 6
Sec. 16. Satisfaction of judgment out of property

attached; return of sheriff. — If ju d g me n t be r eco ver ed
b y t he a t t a c h i n g o b l i g e e an d e x e c u t i o n issu e
t her eo n , the sher iff may cause the jud g me n t to be
sat is f ie d ou t of t he p r o p e r t y a t t a c h e d , i f i t be
sufficient for t hat pur po s e in the fo llowing ma nner :
(a) B y p a yi n g t o t he j u d g m e n t o blige e the
pr o ceed s of all sales of per is ha b l e or ot he r pro pert y
sold in p u r s u a nc e of the o r de r of the co urt , or so muc
h as shall be nec e s sar y to satisfy the ju d g me nt ;
(b) If an y ba la nc e r e ma i n due , by selling so
muc h of the pr o per t y , real or per so na l , as may be
ne ce s s ar y to satisfy the ba la nce , i f eno ug h for t hat
pur po s e r ema i n in the s he r i f f s ha nd s , or in t hose
of the cler k of the co urt ;
(c) By co llect ing from all p er so n s ha vin g in
t hei r po ssessio n cr edit s be lo ng ing t o the ju dg me n t
obligor, or owin g debt s to the lat t e r a t the t ime of t he
a t t a c h m e n t of suc h cr ed it s or debt s, the a mo un t of
such cr ed it s an d debt s as det er m ine d by the co urt i n
t he a ct io n , an d st at e d i n t he j u d g m e n t , an d pa yin g
the pr o ceed s of such co llect io n over to the ju d g me n t
obligee.
The sher iff shall fo r t hw it h mak e a r et u r n in
wr it in g to the Co ur t of his pr o c ee d ing s UNDE R t his
sect io n an d fur nish the p ar t ie s wit h copies t hereof.
(15a)
Sec. 16. Balance due collected upon an execution;

excess delivered to judgment obligor. — If aft er r ealiz ing
u p o n all t he p r o p e r t y a t t a c h e d , i n c l u d i n g t he
p r o c e e d s o f an y d e bt s o r c r e d it s co l le ct e d , an d
a p p l y i n g the p r o c e e d s t o the sat is fa c t io n o f the
ju d g me nt , less the expe nse s of pr o ceed i ng s upon
the ju d g me nt , an y ba la nc e shall r e ma i n due , t he
sheriff, upo n r easo nable de ma nd , mus t r et ur n to the
712
RUL E 57 P R E L I M IN AR Y A T T A C H M E N T SEC . 17
j u d gmen t obligor the at tached property re mai n i n g

in his h and s, and any p roceed s of the sale of the
p rop e rt y at t ach e d not ap p li e d t o the j u d g m e n t .
(16a)
Sec. 17. Recovery upon the counter-bond. — When

the j u d gmen t has become execu t ory, the su rety or
su ret i es on any count er- bond given p ursu an t to the
p rovi si on s of this Rule to secu re the p ayment of the
j u d gmen t shall become ch arged on such cou nt er-
bond, and bound to pay the j u d gmen t obligee upon
d eman d, the amou nt due under the ju dgment, which
a m o u n t ma y b e re c o v e re d from suc h su ret y o r
su ret i es after n otice and su mma ry h eari n g in the
same action. (17a)
NOTES
1. . Wher e the wr i t of e xecut io n is

r e t u r ne d unsatisfied, the liability of the counter-bond
automatically at t ache s w it hout the need for the
plaint iff to file a supplement al pleading to claim
payment from the surety (Vanguard Assurance Corp. vs.
CA, et al., L-25921, May 27, 1975), but the creditor
must have made a demand on the suret y for satisfact ion
of the judgment and the surety was given notice and a
summary hearing in the same action as to his liabilit y
under his counter-bond (Towers Assurance Corp. vs.
Ororama Supermart, et al., L-45848, Nov. 9, 1977; Leelin
Marketing Corp. vs C & S Agro Dev. Co., et al., supra).
2. A writ of execution for recovery on the counter-

bond issued against the surety who was not given notice
and an o ppo rt unit y to be hear d is invalid (Towers
Assurance Corp. vs. Ororama Supermart, et al., supra).
3. Where, however, damages were assessed against
the count er-bond after notice and hearing, a writ of
execution to satisfy the same may forthwith issue and the
713
RULE 57 REM EDIAL LAW C O M P END IU M SECS. 18-19
or der for its i s s ua nc e i s ge ner al l y not appe al abl e . There

is no nee d for a se pa r at e ac ti on to rec ove r on the counter-
bond (Imperial Insurance, Inc. vs. De los Angeles, L-28030,
Jan. 18, 1982). Whi le Sec. 17 pr ovi de s that the c ounte r -
bond i s liable for "the a moun t due UNDER the
judgme nt, " the sur e t y c anno t be held liable for an y
de fic ie nc y in the r ec ove r y i f i t i s in e xc e s s of the a mo un t s t a te
d in the c oun te r - b on d as, in thi s case, the ter m s the re o f
c onsti t ut e the la w b e t we e n the par ti e s , an d not the Rule s of
Court (Central Surety & Insurance Co., Inc. vs. Ubay, et al.,
L-40334, Feb. 28, 1985).
S e c . 18 . Disposition of money deposited. — W h e r e

t he p a r t y a g a i n s t w h o m a t t a c h m e n t h a d b e e n
i s s u e d ha s d e p o s i t e d m o n e y i n s t e a d o f g i v i n g
c o u n t e r - b o n d , i t s h a l l b e a p p l i e d U N D E R the d i r e c t i o
n o f the C o u r t t o the s a t i s f a c t i o n o f an y j u d g m e n t
r e n d e r e d i n fa vo r o f the a t t a c h i n g o b l i g e e , an d af te r
s a t i s f y i n g t h e j u d g m e n t t h e b a l a n c e shal l b e
r e f u n d e d t o the d e p o s i t o r o r hi s a s s i g n e e . I f the
j u d g m e n t i s i n f a v o r o f the p a r t y a g a i n s t w h o m
a t t a c h m e n t w a s i s s u e d , the w h o l e s u m d e p o s i t e d
m u s t b e r e f u n d e d t o hi m o r hi s a s s i g n e e . (1 8a )
S e c . 19 . Disposition of attached property where

judgment is for party against whom attachment was issued.
— I f j u d g m e n t b e r e n d e r e d a g a i n s t the a t t a c h i n g
o b l i g e e , al l the p r o c e e d s o f s a l e s an d m o n e y c o l l e c t e d
o r r e c e i v e d b y the s h e r i f f , u n d e r th e o r d e r o f
a t t a c h m e n t , an d al l p r o p e r t y a t t a c h e d r e m a i n i n g
i n an y s uc h o f f i c e r ' s h a n d s , s h a l l b e d e l i v e r e d t o the
p a r t y a g a i n s t w h o m a t t a c h m e n t wa s i s s u e d , an d the
o r d e r o f a t t a c h m e n t d i s c h a r g e d . ( 19 a )
N O TE
1 . Secs. 18 an d 19 pr ovi de for the pr oce dure in the

di sp osi ti on of (1) mone y whic h wa s de p osi te d by a party
714
against whom at t achme nt was ordered inst ead of his

post ing a counter-bond for the lifting of the levy; and
(2) where propert y was attached or sold, or money due to
the part y against whom att achment was issued had been
collected by the court officer under the writ of at t achment ,
but the judg ment was against the att aching creditor.
Rest itut ion in eit her case is indicated and governed by
these sect ions, wit hout prejudice to the liabilit y of the
attaching creditor under the following section.
Sec. 20. Claim for damages on account of improper,

irregular or excessive attachment. — An app li cati on for
d a m a g e s o n a c c o u n t o f i m p ro p e r , i r re g u l a r o r
exc es si ve at t ach men t must be filed before the trial
or before app eal is perfect ed or before the ju d gmen t
b e c o m e s e x e c u t o r y , wi t h du e n ot i c e t o the
at t ach i n g ob ligee and his su rety or su ret i es, setti ng
forth the facts sh owi n g his right to d amages and
the amount thereof. Such damages may be award ed
only after p rop er h eari n g and shall be i n clu d ed in
the j u d gmen t on the main case.
I f the j u d g m e n t o f the a p p e l l a t e C ou rt b e
favorab le to the party agai n st who m the at t ach •
ment was i ssu ed, he must claim d amages su st ain ed
d u ri n g the p en d e n c y of the app eal by filing an
app li cati on in the appellat e court with notice to the
party in wh ose favor the att ach ment was issued or
his su rety or su reties, before the j udgment of the
appellate court becomes executory. The appellate
cou rt may allow the ap p li cat ion to be heard and
d eci d ed by the trial court.
Not h i n g h erei n cont ai n ed shall p re ven t the
party against who m the attachment was issued from
recoveri n g in the same action the damages award ed
to him from any property of the at tach in g obligee
not e xe mp t from e xe c u t i o n sh ou l d the bond or
deposit given by the latter be insufficient or fail to
715
RULE 57 REM EDIAL LAW CO M PE NDI U M 8 EC. 20
fully sat isfy the awar d . (20a)
NOTES
1. This section governs the consequences where the

attaching creditor fails to sustain his action and judgment
is rendered against him. The debtor whose property was
attached can proceed against the bond posted by the
at t aching creditor to obt ain the writ of preliminar y
attachment.
2. However, even if judgment was rendered against
the attaching creditor but he proves that he acted in good
faith in procuring such preliminar y at t achment , the
adverse part y cannot recover on the att achment bond
(Banque General Beige vs. Bull & Co., 84 Phil. 164;
Worcester vs. Lorenzana, 104 Phil. 234).
3. Sec. 20 provides for the procedure to be followed
in recovering damages against the bond posted by the
attaching creditor. Such procedure is the same as that
for recovery of damages against the bond posted by the
applicant in preliminar y injunct ion, receivership or
replevin (see Malayan Insurance Co. vs. Solas, L-48820,
May 25, 1979).
4. The application for damages must be made by a

count erclaim in the answer (Ganaway vs. Fidelity &
Surety Co., Inc., 45 Phil. 406; Medina vs. Maderera del
Norte de Catanduanes, 51 Phil. 240) or by motion in the
same action. It should be filed in the trial court at any
time before the t r ial or before the appeal from the
judgment therein is perfected or before such judgment
becomes execut ory, and s ha ll include all da mages
sust a ined by reaso n of t he a t t a c h me n t dur ing the
pendency of the case in the trial court (see San Beda
College vs. SSS, L-27493, May 29, 1970, and cases cited
t her e in r egar ding the bond in injunct ion cases; cf.
Mendoza, et al. vs. Cruz, et al., L-26829, Dec. 27, 1979).
716
If the case is appealed and the judg me nt of the

appellate court is in favor of the party whose propert y
was attached, he can ask for damages sustained by him
during the pendency of the appeal by filing a motion in
the appellate court at any time before such judgment on
appeal becomes executory (Luneta Motor Co. vs. Menendez,
et al, 117 Phil. 970), but if he did not apply for damages
in the trial court, he cannot ask for damages during the
pendency of the trial by motion in the appellat e court.
However, where the writ of preliminary at tachment issued
by the trial court was declared null and void in an original
action before the appellate court, the damages sustained
by t he part y whose pr o pert y was at t ac he d can be
adjudicated on appeal in the main case by the Court of
Appeals, especially since Sec. 9 of B.P. Blg. 129 grant s it
the power to resolve factual issues in cases falling wit hin
its original or appellat e jurisdiction. The appellate court
shall hear and decide the application and include in its
judgment the award against the surety, or it may refer
such claim to the trial court and allow it to hear and decide
the same (Hanil Dev. Co., Ltd. vs. IAC, et al, G.R. No.
71229, Sept. 30, 1986).
5. The suret y must be notified of the applicat ion for
damages, ot herwise the judgment t hereon cannot be
executed against him. Where the judgment became final
and the suret y was not impleaded by such notice, the
sur et y is relieved from liabilit y (Visayan Surety &
Insurance Co. vs. Pascual, 85 Phil. 779). For the same
rule in injunction bonds, see Visayan Surety & Insurance
Co. vs. Lacson (96 Phil. 878). The damages recoverable
for a wrongful at t achment is limited to the amount of the
bond (Pads vs. COMELEC, L-29026, Aug. 22, 1969).
6. The procedure for claiming damages outlined in
Sec. 20 is exclusive, hence such claims for damages cannot
be the subject of an independent action, except:
(a) Where the principal case was dismissed for lack
717
RUL E 57 REM EDIAL LAW COMPENDIU M SEC. 20
of jur isd ict io n by the t r ial court wit hout giving an

opportunity to the party whose property was attached to
apply for and prove his claim for damages; and
(b) Where the damages by reason of the attachment
was sustained by a third person who was not a party to
the action wherein such writ was issued (Santos vs. CA,
et al.. 95 Phil. 360).
7. The claim for damages against the bond in an
alleged wrongful attachment can only be sought in the
same court where the bond was filed and the attachment
was issued. Where the action filed in the Court of First
Instance of Manila, which issued the writ of preliminary
att achment , was subsequent ly dismissed for improper
venue, it was not error for said court to set the case for
hearing only on the issue of damages but which application
for damages was lat er wit hdrawn by the defendant .
Neither did the Court of First Instance of Cebu, wherein
the same case was subsequently refiled, have jurisdiction
to rule on the issue of damages on the bond as therein
claimed by the same defendant since it was not the court
which issued the writ of preliminary att achment subject
of defendant's claim for damages and it had no jurisdiction
over the surety company which issued said bond, pursuant
to Sec. 20 of this Rule. The doctrine in Santos vs. CA, et
al., supra, is not applicable since in said case, the principal
action was dismissed for lack of jurisdict ion and no claim
for damages could therefore have been presented therein
(Pioneer Insurance & Surety Corp., et al. vs. Hontanosas,
et al, L-35951, Aug. 31, 1977).
8. The procedure under this section is different from

that in Sec. 17 of this Rule regarding the liability of the
surety on the counter-bond posted for the lifting of the
preliminary att achment , under which the surety may be
held liable after notice and summary hearing if execution
of the judg me nt was r et ur ne d unsat isfied (Towers
Assurance Corp. vs. Ororama Supermart, supra).
718
RULE 58
PRELIMINARY INJUNCTIO N
Section 1. Preliminary injunction defined; classes.

— A p reli min ary i nju n cti on is an order gran t ed at
any stage of an action or p roceed in g prior to the
j u d g m e n t or final ord er, req u i ri n g a party or a
c o u rt , a g e n c y or a p e r s o n to re f r a i n fro m a
p a rt i c u l a r act or act s . I t may als o req u i r e the
p erforman ce of a particu lar act or acts, in wh i c h
case it shall be kn own as a preli minary man dat ory
i nj un cti on, (la)
Sec. 9. When final injunction granted. — If after

the trial of the action i t ap p ears that the ap p li cant
i s en t it led to hav e the act or acts comp lai n ed of
p erman en t ly en j oi ned, the court shall grant a final
i n j u n c t i o n p e rp e t u a l l y re s t ra i n i n g the party o r
p e r s o n e n j o i n e d from the c o m m i s s i o n o r con •
t i n u a n c e o f the ac t o r act s o r c o n f i r m i n g the
p reli mi n ary man datory injunction. (10a)
NOTES
1. Injunction is a judicial writ, process or proceeding

whereby a part y is ordered to do or refrain from doing a
part icular act. It may be an action in itself, brought
specifically to restrain or command the performance of an
act (see Art. 26, Civil Code; Sec. 4, Rule 39; Manila
Banking Corp., et al. vs. CA, et al., L-45961, July 3, 1990),
or it may just be a provisional remedy for and as an
incident in the main action which may be for other reliefs.
In its customary usage, injunction is a judicial process
operat ing in personam, and requiring a person to whom it
is directed to do or refrain from doing a particular thing
(Gainsberg vs. Dodge, 193 Art. 478, 101 S.W. 2d 178). In
719
RULE 68 REM EDIAL LAW COMPENDIU M SEC S 1. 9
the amended Sec. 1 of this Rule, the coverage of the writ

has been expanded to include a party or a court, agency
or person for whom its directive may be intended, in line
with judicial practice and procedure which justifies or
necessit at es such rest raint against a court or agency
impleaded as a respondent in a higher court or a non•
party whose acts are involved in the proceeding.
2. The primary purpose of injunction is to preserve
the status quo by restraining action or interference or by
furnishing prevent ive relief. The status quo is the last
actual, peaceable, uncontested st atus which precedes the
pending controversy (Rodulfa vs. Alfonso, 76 Phil. 225).
This rule deals wit h injunct ion as a provisional
remedy. Thus, the main action may be for permanent
injunct ion and the plaint iff may ask for preliminar y
injunction therein pending the final judgment (see Manila
Banking Corp. vs. CA, et al., G.R. Nos. 45961, July 3,
1990).
3. Injunct ion may be preliminar y or final. Pre•
liminary injunction, under Sec. 1, is an order granted at
any stage of an action prior to the judgment or final order
therein. A final injunction, under Sec. 9, is one issued in
the judgment in the case permanent ly restraining the
de fe nda nt or mak in g the p r e l i m i na r y inju nct io n
permanent . For this reason, Secs. 1 and 9 of this Rule
are presented jointly for referent ial contrast.
Injunction may also be prevent ive (or prohibitive) or
mandatory. As provided in these sections, a preventive
injunct ion requires a person to refrain from doing a
part icular act, while a mandatory injunction requires the
performance of a particular act.
4. A mandatory injunction is an extreme remedy and
will be granted only on a showing that (a) the invasion
of the right is material and substant ial, (b) the right of
the complainant is clear and unmistakable, and (c) there
720
RUL E 58 P R E L I M IN AR Y INJU NCTIO N SE C S . 1, 9
is an urgent and par amount necessit y for the writ to

prevent serious damage (Bautista, et al. vs. Barcelona, et
al., 100 Phil. 1078). And in Lemi vs. Valencia. (L-20768,
Feb. 28, 1963), a further requisite is t hat the effect of the
mandatory injunction would not be to create a new relation
between the part ies which was arbitrarily int errupt ed by
the defendant (see Alvaro, et al. vs. Zapata, et al., G.R.
No. 50548, Nov. 25, 1982). That requisit e, however, is
already assumed in preliminary injunction which has for
its purpose precisely the preservat ion of the status quo
ante (Rivera, et al. vs. Florendo, etc., et al, G.R. No. 57586,
Oct. 8, 1986).
To be ent itled to an injunctive writ, it is necessary
t hat there be a clear showing of the right claimed by the
applicant, alt hough no conclusive proof is necessary at
t hat st age. Nevert heless, it must be shown, at least
t ent at ive ly, t hat it exist s and is not vit iat ed by any
subst ant ial challenge or contradiction (Developers Group
of Companies, Inc. vs. CA, et al., G.R. No. 104583, Mar. 8,
1993).
5. A prevent ive preliminary injunction, as succinctly

summar ized by the Supreme Court, is an order granted
at any stage of an action prior to final judgment, requiring
a person to refrain from doing a part icular act. As an
ancillary remedy, preliminary injunction may be resorted
to by a part y to protect or preserve his rights and for no
other purpose. It is not a cause of action in itself but
merely an adjunct to a main cause, in order to preserve
the status quo until the merits of the case can be heard.
Thus, a person who is not a party in the main suit cannot
be bound by an ancillary writ of injunction since he cannot
be affected by a proceeding to which he is a st ranger
(Mabuyo Farms, Inc. vs. CA, et al., G.R. No. 140058,
Aug. 1, 2002; citations omitted).
6. Dist inctions between injunction and prohibition:
a. Injunction is generally directed against a party
721
RULE 58 REM EDIAL LAW COMPENDIU M SECS. 1. 9
in the action, while prohibition is directed against a court,

tribunal or person exercising judicial powers.
b. Injunction does not involve the jurisdiction of the
court, whereas prohibition may be on the ground that the
court against whom the writ is sought acted without or in
excess of jurisdiction.
c. Injunction may be the main action itself, or just a
provisional remedy in the main action, whereas prohibition
is always a main action. Hence, for temporary restraint
in a proceeding for prohibit ion, preliminary injunction
must be sought therein.
7. As a general rule, courts should avoid issuing a
writ of preliminary injunction which in effect disposes of
the main case without trial. Otherwise, if the main prayer
of the complaint has been grant ed t hrough a writ of
preliminary mandatory injunction, there will practically
be nothing left for the lower court to try except the
plaint iffs claim for damages (Ortigas & Co. Limited
Partnership vs. CA, et al., G.R. No. 79128, June 16, 1988).
8. Where the only ground relied upon for injunctive
relief is the alleged nullit y of an ordinance, if the court
should issue the preliminary writ, it would be a virtual
acceptance t hat the ordinance is of doubtful validit y.
There would, in effect, be a prejudgment of the main case
and a reversal of the rule on burden of proof since it would
assume the proposition which the petitioner is inceptively
duty bound to prove (Valley Trading Co., Inc. vs. CFI of
Isabela, et al., L-49529, Mar. 31, 1989).
9. In the issuance of a writ of preliminary injunction,
the courts are given sufficient discretion to determine the
necessit y of the grant thereof, with t he caveat t hat
ext reme caut ion be observed in the exercise of such
discretion. It must be with an equal degree of care and
caution that courts ought to proceed in the denial of the
writ. It should not just summarily issue an order of denial
722
RUL E 58 P R E L I M IN AR Y INJUNC TIO N SE C S . 1, 9
wit hout an adequat e hear ing and judicious evaluat ion of

the mer it s of the app licat io n. A per fu nct or y and
improvident action in this regard would be a denial of
procedural due process (Bataclan, et al. vs. CA, et al.,
G.R. No. 78148, July 31, 1989).
10. A second application for preliminar y injunction,
which rest s in the sound discret ion of the court, will
ordinarily be denied unless it is based on facts unknown
at the time of the first application. The reason for this
rule is the same as the interdict ion on splitt ing a single
cause of action while providing for permissive joinder of
causes of action, both intended to avoid mult iplicit y of
suits. However, this rule applies only where the second
applicat ion is to operate on the same act sought to be
enjoined in the first application, and cannot be invoked
where relief is sought against a different act (Reyes vs.
CA, et al, G.R. No. 87647, May 21, 1990).
11. A preliminar y mandat ory injunct ion is not a

proper remedy to take disput ed propert y out of the
possession and control of one party and to deliver the same
to the other part y. It may issue pendente lite only in
cases of extreme urgency, where the right to the possessio n
of the property involved is very clear; where considerations
of relat ive inconvenience bear strongly in favor of the
complainant seeking the possession of the property during
the pendency of the main case; where there was willful
and unlawful invasion of the plaint iffs right s over his
protest and remonst rance, the injury being a continuing
one; and where the effect of the preliminary mandatory
injunction is to reestablish and maintain a pre-exist ing
and cont inuing relat ionship between the parties, recently
and arbitrarily int errupted by the defendants, rat her than
to establish a new relat ionship while the principal case is
pending (Merville Park Homeowners Association, Inc.
vs. Velez, et al., G.R. No. 82985, April 22, 1991).
723
Se c 2. Who may grant preliminary injunction. — A

preli minary injunction may be granted by the court
where the action or proceeding is pending. If the
action or p roc eed i n g is p en d i n g in the Court of
Appeals or in the Supreme Court, it may be issued
by said court or any member thereof. (2a)
NOTES
1. Jurisdict ional rules on preliminary injunction:

a. The Supreme Court can issue the preliminary writ
in cases on appeal before it or in original actions commenced
therein. However, an original action for injunction is
outside the jurisdict ion of the Supreme Court but must be
filed in t he Court of First I nst ance (Madarang vs.
Santamaria, 37 Phil. 304) or in the Court of Appeals.
b. Formerly, the Court of Appeals could issue writs
of preliminar y injunct ion only in aid of its appellate
jurisdiction. As this presupposes t hat there is a right of
appeal to said court, then the Court of Appeals had no
jurisdiction to issue a writ of preliminary injunction to
restrain a final judgment (J.M Tuason & Co. vs. CA, et
al., L-18128 and 18672, Dec. 26, 1961).
However, under Sec. 9(1) of B.P. Blg. 129, the
present Court of Appeals can now issue auxiliary writs
whether or not these are in aid of its appellate jurisdiction.
Consequently, it is submitted that the foregoing doctrine
has been modified in the sense that despite this change in
legislation, no such auxiliary writs can likewise be issued
if the judgment of the lower court has already become final
and executory, unless the writ is prayed for as a provisional
remedy in an original action filed in the Court of Appeals
challenging or seeking to restrain the enforcement of said
judgment or to annul the same as in Rule 47.
c. Also, a Court of First Instance had jurisdiction to
issue writs of preliminar y injunction in cases pending
724
RUL E 58 P R E L I M IN AR Y INJUNC TIO N SEC . 2
before it and those pending in lower courts wit hin its

t erritorial jurisdict ion. However -
(1) The jurisdict ion of the Court of First Instance
to restrain acts by a writ of injunction was limited to
t hose being or about to be commit t ed wit hin its
t errit orial jur isdict ion (Central Bank vs. Cajigal, L-
19278, Dec. 29, 1962; Hacbang vs. Leyte Autobus Co.,
L-17907, May 30, 1963; De la Cruz vs. Gabor, et al, L-
30774, Oct. 31, 1969; City ofDavao vs. Angeles, et al,
L-30719, May 26, 1977; Mendoza vs. Cruz, L-26829,
Dec. 27, 1979; Sec. 44[h], R.A. 296). Insofar as
injunct ive or prohibitory writ s were concerned,
Courts of First Instance had the power to issue writs
limited to or operat ive only within their respective
provinces or districts (now, regions, [Par. 3(a), Interim
Rules]). The provisions of Sec. 3, Rule 135 were
delimited on this part icular score by Sec. 44(h) of R.A.
296, as amended (Dir. of Forestry, et al. vs. Ruiz, et
al, L-24882, April 30, 1971) and further modified as
above indicat ed. Where the order dismissing the
plaintiff employee was issued by the Commissioner of
Land Transportation in the head office in Quezon City
but the dismissal order was to be implemented by the
regist rar of the LTC in Dagupan City, the Court of
First Instance in Dagupan City had jurisdict ion to
issue a writ of preliminary injunction against said
regist rar (Decano vs. Edu, L-30070, Aug. 29, 1980;
cf. Olongapo Electric, etc., Corp. vs. NPC, L-24912,
April 9, 1987).
(2) It could not issue wr it s of p r e l i m i na r y
injunction in unfair labor practices, or where the issue
involved is interwoven with an unfair labor practice
case pending in the then Court of I ndustrial Rela•
tions (Chan Bros., Inc. vs. FOITAF Democratic Labor
Union, L-34761, Jan. 17, 1974). The same rule
applies in proceedings under the Labor Code (see
Art. 254, P.D. 442, infra), with exceptions.
725
(3) It could not issue a writ of preliminary injunc•

tion against the Social Security Commission (Poblete
Construction Co. vs. SSC, L-17606, Jan. 22, 1964),
the Securities and Exchange Commission (Pineda vs.
Lantin, L-15350, Nov. 30, 1962; Phil. Pacific Fishing
Co., Inc. vs. Luna, G.R. No. 59070, Mar. 15, 1982),
or in disputes within the exclusive jurisdiction of the
Securit ies and Exchange Commission (Dionisio, et
al. vs. CFI, et al., G.R. No. 61048, Aug. 17, 1983), or
t he for mer Public S er vice Co mmiss io n (Iloilo
Commercial & Ice Co. vs. Public Service Commission,
56 Phil. 28; Regalado vs. Prov. Constabulary
Commander, etc., L-15674, Nov. 29, 1961), the Patent
Office (Honda Giken Kogyo Kabushiki Kaisha vs. San
Diego, L22756, Mar. 18, 1966), or the Commission
on Elections (Macud vs. COMELEC, et al, L-28562,
April 25, 1968), as the remedy lies in either the Court
of Appeals or the Supreme Court, as the case may be
(cf. National Electrification Adm., et al. vs. Mendoza,
et al, G.R. No. 62030, Sept. 25, 1985).
(4) It could not interfere by injunction with the
judg ment of a court of concurrent or coordinat e
jur isd ict io n (Calderon vs. Gomez, etc., L-25239,
Nov. 18, 1967; Luciano vs. Provincial Governor, et
al, L-30306, June 20, 1969), provided the relief
sought by such injunct ion is one which could be
granted by the court which rendered the judgment
(Abiera, et al. vs. CA, et al, L-26294, May 31, 1972),
or when no third-part y claimant is involved. When a
third party, or stranger to the action asserts a claim
to the property levied upon, he may vindicate his
claim by an independent action and the court therein
may enjoin the execution of the judgment of the other
court (Tay Sun Suy vs. CA, et al, G.R. No. 93640,
Jan. 7, 1994).
d. An injunction suit against the telephone company
(PLDT) which cut off its telephone relay station is within
726
the jur isdict io n of the regular court s, and not of the

Nat ional Telecommunicat ions Commission, since what is
involved is an alleged breach of contract, with a prayer
for damages, which are judicial quest ions (Boiser vs. CA,
et al., G.R. No. 61438, June 24, 1983).
e. Formerly, the inferior courts could originally grant
preliminar y injunction only in forcible entry cases (Sec.
88, R.A. 296; Art. 539, Civil Code; Sec. 3, Rule 70), but
not in unlawful detainer cases (Piit vs. De Lara, 58 Phil.
766); but in unlawful det a iner cases on appeal, the
appellate court may grant preliminary injunction where
the appeal appears to be frivolous or dilatory (see Art. 1674,
Civil Code; Sec. 9, Rule 70).
In other cases, the inferior courts could not issue writs
of preliminar y injunction, except t hat the former City
Courts or municipal courts in capit als of provinces or sub-
provinces may do so in the absence of the District Judge
(Sec. 88, R.A. 296).
See, however, Sec. 33 of B.P. Blg. 129 discussed in
the preliminary portion of this work, regarding the changes
affecting the foregoing doctrines.
2. While preliminary injunction can be challenged
by cert iorar i, a judgment for permanent injunction should
be the subject of an appeal (Gasilan, et al. vs. Ibanez, et
al., L-19968-69, Oct. 31, 1962).
3. . "No t e mp o r ar y or p er ma ne n t inju nct io n
or restraining order in any case involving or growing out
of labor disputes shall be issued by any court or other
entity except as otherwise provided in Articles 218 and
264 of this Code" (Art. 254, P.D. 442, Labor Code, as
amended by B.P. Blg. 227; Pucan, et al. vs. Benson, et al.,
G.R. No. 74236, Nov. 27, 1987). For injunction and
rest raining orders in labor cases, see Arts. 218 and 264
of the Labor Code and Sec. 13 of Rule XXII, Book V,
Omnibus Rules Implement ing the Labor Code. However,
where the writ
727
RULE 58 REM EDIAL LAW COMPENDIU M SEC. 2
of execut ion issued by the Nat ional Labor Relat ions

Commission is sought to be enforced upon the property of
a third person, a separat e action for injunct ive relief
against said levy may be maintained since such action
neit her involves nor grows out of a labor dispute inso•
far as the third party is concerned (National Mines &
Allied Workers' Union, et al. vs. Vera, etc., et al., L-44230,
Nov. 19, 1984).
4. "No Court of the Philippines shall have jurisdiction
to issue any restraining order, preliminary injunction or
preliminary mandatory injunction in any case involving
or growing out of the issuance, approval or disapproval,
revocation or suspension of, or any action whatsoever by
the proper administrat ive official or body on concessions,
licenses, permits, patents, or public grants of any kind or
in connection with the disposition, exploitation, utilization,
exploration and/or development of the natural resources
of the Philippines" (Sec. 1, P.D. 605; see Strong vs. Castro,
et al., G.R. No. 63658, June 29, 1985).
5. A special procedure involving restraining orders
and writs of injunction against financial inst itut ions of
the Government is provided by P.D. 385 which bans
injunct ions against foreclosures so t hat government
financial inst it ut io ns are not denied cash inflows by
borrowers who resort to court action in order to delay the
collection of their debts by the Government (see Filipinos
Marble Co., Inc. vs. IAC, et al., G.R. No. 68010, May 30,
1986).
6. R.A. 8975, which was enacted on November 7,

2000, provides that no court, except the Supreme Court,
shall issue any temporary restraining order, preliminar y
injunction or preliminary mandatory injunction against
the Government, or any person or entity, whether public
or private, acting under the Government's direction, to
restrain or prohibit or compel the acts stated therein which
would adversely affect the expeditious implementation and
728
RUL E 58 P R E L I M IN AR Y INJUN CTIO N SEC . 2
co mp let io n of go ve r nme n t i n f r a s t r u c t u r e pro ject s

(Appendix V).
7. The Court of First Instance of a judicial district

can enjoin the sheriff from selling propert ies levied upon
to satisfy the judgment of a Court of First Instance of
anot her judicial dist rict . Thus, where the propert ies
involved were those of a stranger to the action, the Court
of First I nst ance of Rizal can validly issue a writ of
injunct ion to prevent the sale thereof which was intended
to satisfy the judgment of the Court of First Instance of
Manila (said courts belonging then to different judicial
districts). This does not const itute an interference with
the pro cesses of a court of coordinat e and co-equal
jurisdict ion as the sheriff was improperly implement ing
the writ of execut ion (Abiera vs. CA, et al., L-26294,
May 31, 1972; Arabay, Inc. vs. Salvador, et al., L-31077,
Mar. 17, 1978; Santos vs. Sibug, L 26815, May 26, 1981).
8. Jur isd ict ion over all sequest rat ion cases of ill-
gotten wealt h under the Marcos regime falls within the
exclusive and original jurisdiction of the Sandiganbayan,
subject to review exclusively by t he Supreme Court.
Executive Order No. 1 effectively withholds jurisdiction
over the President ial Commission on Good Government
from all lower courts, including the Court of Appeals. This
is also to give due recognition to the related doctrines of
pr imar y administ rat ive jurisdict ion and exhaust ion of
administ rat ive remedies as pointed out in the resolution
in Reyes, etc., et al. vs. Caneba, etc., et al. (G.R. No. 82218,
Mar. 17, 1988) which enjoins courts to allow administrative
agencies to carry out their functions and discharge their
r espo ns ib il it e s wit hin t he ir respect ive compet ence.
Regional Trial Courts may not interfere with and restrain
or set aside orders and actions of said Commission as the
acts of an administ rat ive agency must not be casually
overturned by a court, and a court should generally not
subst it ut e its judgment for t hat of said agency act ing
729
within the perimeters of its own competence (PCGG vs.

Pena, et al., G.R. No. 77663, April 12, 1988).
Se c 3. Grounds for issuance of preliminary

injunction. — A p re l i m i n a r y i n j u n c t i o n may be
granted when it is estab li sh ed:
(a) That the applicant is entit led to the relief
d e ma n d e d , and the whole or part of such relief
con si st s in re s t ra i n i n g the c o m m i s s i o n or con•
t i n u an c e of the act or acts comp lai n ed of, or in
requi ring the performan ce of an act or acts, either
for a limited period or perp etually;
(b) That the commission, cont in uance or non•
performance of the act or acts comp lain ed of during
the litigation would probably work injustice to the
applicant; or
(c) That a party, court, agency or a person is
doing, t h re at e n i n g , or is at t e m p t i n g to do, or is
procu ring or suffering to be done, some act or acts
probably in violation of the rights of the applicant
resp ecti ng the subject of the action or proceeding,
and tending to render the judgment ineffectual. (3a)
NOTES
1. As a rule, injunction does not lie to restrain the

enfo r ce me nt of a law alleged to be unco nst it u•
tional except if it will result in injury to rights in private
property (J.M. Tuazon & Co. vs. CA, et al., supra). For
injunction in criminal cases, see the notes under Sec. 1,
Rule 110.
2. Injunction contemplates acts being committed or
about to be committed, hence injunction does not lie against
acts already consummated (Reyes, et al. vs. Harty, 21 Phil.
422; Remonte vs. Bonto, L-19900, Feb. 28, 1966; Romulo
vs. Yniguez, G.R. 71908, Feb. 4, 1986). Even if the acts
730
complained of have already been committed, but such acts

are co nt inu ing in nat ur e and were in derogat io n of
plaint iffs right s at the outset, preliminar y mandat ory
injunct ion may be availed of to restore the part ies to the
status quo (Dayrit vs. De los Santos, 18 Phil. 275). Hence,
the dispossessor in forcible entry can be compelled to restore
possession to the original possessor (see Art. 539, Civil
Code) and an elect r ic company can be compelled to
provisionally reconnect the service it had disconnected and
which act is assailed in the main action (Meralco vs. Del
Rosario, etc., et al., 22 Phil. 433).
Sec. 4. Verified application and bond for pre•

liminary injunction or temporary restraining order. — A
p r e l i m i n a r y i n j u n c t io n o r t e m p o r a r y r e s t r a i n i n g
o r de r ma y b e g r a nt e d only w he n :
(a) The a p p l i c a t i o n i n t he a c t i o n o r pr o •
c e e d in g i s ver if ied, an d s ho w s fact s e nt it l i n g the
a p p l i c a n t t o the r elie f d e ma nd e d ; an d
(b) U n l e s s e x e m p t e d b y t he c o u r t , t he
a p p l i c a n t files wit h the Co ur t wher e the act io n o r
p r o c e e d i n g i s p e nd i ng , a bond e xec ut e d to the par t y
or per so n e njo ined, in an a mo u n t to be fixed by t he
co urt , t o the effect t hat the a p p l i c a n t will pa y t o suc
h pa r t y o r p e r so n s all d a m a g e s whic h h e ma y s u s t a i n
by r e a so n of the in ju nct io n or t e m p o r a r y r e s t r a i n i n g
o r de r i f the Co urt sho u l d finally d e c id e t hat t he
a p p l i c a n t was not ent it le d t he r et o . Upo n appr o va l of
the r e qu is it e bo nd, a wr i t of pr e l i m i n a r y in ju nct io n
sha ll be issued. (4a)
(c) Whe n an a p p l i c a t i o n for a wr i t of pr e •
li min a r y in ju nc t io n o r a t e mp o r a r y r e st r a in i n g
o r de r i s inc lude d in a co mp l a i n t or an y in it iat o r y
p le ad ing , the case, i f filed in a mu lt ip le - s a l a co ur t ,
sha l l b e r affled onl y a ft e r no t ic e t o an d i n t he
pr e s e nc e o f the a d ver s e part y o r the per so n t o b e
731
RULE 58 REM EDIAL LAW CO M P EN DIU M SEC 4
e n j o i n e d . I n a n y e v e n t , s u c h n o t i c e shal l b e
precede d o r c on te mp or a ne ous l y accompanie d b y
s e r v i c e o f s u m m o n s , t o g e t h e r w i t h a c op y o f the
c o m p l a i n t o r i n i t i a t o r y p l e a d i n g an d the a p p l i c a n t ' s
a f f i d a v i t s an d b o n d , u p o n the a d v e r s e p a r t y i n the
Philippines .
H o w e v e r , w h e r e t he s u m m o n s c o u l d no t b e
serve d p e r s o n a l l y o r b y s u b s t i t u t e d servic e despit e
d i l i g e n t e f f or t s , o r the a d v e r s e p a r t y i s a r e s i d e n t o f
the P h i l i p p i n e s t e m p o r a r i l y a b s e n t t h e r e f r o m o r i s
a n o n r e s i d e n t t h e r e o f , the r e q u i r e m e n t o f pr i o r o r
c o n t e m p o r a n e o u s s e r v i c e o f s u m m o n s s h a l l no t
apply .
(d) The a p p l i c a t i o n fo r a t e m p o r a r y r e s t r a i n •
i n g o r d e r s h a l l t h e r e a f t e r b e a c t e d u p o n on l y a f te r
al l p a r t i e s ar e h e a r d i n a s u m m a r y h e a r i n g w h i c h
s h a l l b e c o n d u c t e d w i t h i n t w e n t y - f o u r (24 ) h o u r s
a f t e r the s h e r i f f s r e t u r n o f s e r v i c e a n d / o r the r e c o r d
s ar e r e c e i v e d b y the b r a n c h s e l e c t e d b y r affl e a n d t o w
h i c h t he r e c o r d s s h a l l b e t r a n s m i t t e d i m m e d i a t e l y , (n
)
NOTE S
1. Express provisions in these Rules regulat ing the

issuance of temporary restraining orders were effected by
an amendment int roduced by B.P. Blg. 224, effective
April 16, 1982, in Sec. 5 of Rule 58. Prior thereto, the
only extended treat ment on restraining orders was found
in R.A. 875, the Industrial Peace Act. Despite the absence
of specific provisions on such an order in the Rules prior
to the aforestated amendment, it has been sanctioned as
part of our judicial system and practice by the Supreme
Court. For that matter, Sec. 6, Rule 135 provides that
"(w)hen by law jurisdict ion is conferred on a court or
judicial officer, all auxiliary writs, processes and other
means necessary to carry it into effect may be employed
732
by such court or officer; and if the procedure to be followed

in the exercise of such jurisdiction is not specifically pointed
out by law or by t hese rules, any suitable process or mode
of proceeding may be adopted which appears conformable
to the spirit of said law or rules."
2. In equit y practice in the American jurisdiction, a
rest raining order is one which may issue upon the filing
of an app l ic at io n for an inju nct io n for bidd ing the
defendant to do the t hreatened act until a hear ing on the
applicat ion can be had. Though the term is somet imes
used as a synonym of "injunction," a rest raining order
is properly dist inguishable from an injunction in t hat the
former is intended only as a restraint upon the defendant
unt il the propriet y of grant ing an injunction, temporary
or perpetual, can be det ermined, and it does no more t han
rest rain the proceedings until such determinat ion (Black's
Law Dictionary, 4th Ed., p. 1247, cit ing Wetzstein vs.
Boston, etc. Min. Co., 25 Mont. 135, 63 Pac. 1043; Mason
vs. Milligan, 185 Ind. 319, 114 N.E. 3; Labbitt vs. Bunton,
80 Mont. 293, 260 P. 727).
3. The same concept was adopted by our Supreme

Court which explained t hat it is an order to maint ain the
subject of controversy in status quo until the hear ing of
an a p p l i c a t io n for a t e mp o r a r y inj unct io n. It is
dist inguished from an injunction in t hat it is intended as
a r est r aint upon the defendant unt il the propriet y of
grant ing an injunction pendente lite can be determined,
and it goes no further t han to preserve the status quo
unt il such det erminat ion. Accordingly, the grant, denial
or lifting of a rest r aining order does not in any way
preempt the court's power to decide the issue in the main
action which is the injunction suit (Anglo-Fil Trading
Corp. vs. Lazaro, G.R. No. 54958, Sept. 2, 1983).
Also, according to the Court of Appeals, a restraining
order, as t he t er m connotes, is merely t emporar y or
provisional. When a restraining order is allowed to last
733
RULE 88 REM EDIAL LAW COMPENDIU M SEC 4
for more than one month, it can no longer be said to be

temporary; and its purpose, which is to maint ain the status
quo in the meant ime t hat the petition is to be heard, is
therefore abused. It t hus acquires the st atus of semi-
permanence, akin to a preliminary injunction (Simpas vs.
Adil, CA-GR. No. 04406SP, Oct. 28, 1975). Apparently
to under sco r e t hat fact, the pr ese n t pract ice is to
categorically refer to it as a temporary restraining order.
4. . UNDE R t hi s ame nded sect ion, a
t e mpo r ar y restraining order has been elevated to the
same level as a preliminary injunction in the procedure,
grounds and requirement s for its obtention. Specifically
on the matter of the requisite bond, the present
requirement therefor not only for a pr eliminar y
injunct ion but also for a restraining order, unless
exempted therefrom by the court, put s to rest a
cont roversial policy which was eit her wittingly or
unwittingly abused. Heretofore, no bond was required for
the issuance of a temporary restraining order, except in
labor cases brought to the Supreme Court on cert iorari
from a decision of the National Labor Relations
Commission where a monetary award was granted, in
which case the policy of the Supreme Court was to require
a bond equivalent to the monet ary award or benefits
granted as a condition for the issuance of a temporary
restraining order. The exemption from bond in other cases,
plus t he fact t hat no hear ing was required, made a
t emporary rest raining order a much sought relief for
petitioners.
5. There have been instances when the Supreme
Court has issued a status quo order which, as the very
term connotes, is merely intended to maintain the last,
actual, peaceable and uncontested state of things which
preceded the controversy. This was resorted to when the
projected proceedings in the case made the conservation
of the status quo desirable or essential, but the affected
party neither sought such relief nor did the allegations in
734
his pleading sufficiently make out a case for a temporary

rest raining order. The status quo order was t hus issued
motu proprio on equitable considerat ions. Also, unlike a
temporary r est raining order or a preliminary injunction,
a status quo order is more in the nat ure of a cease and
desist order, since it does not direct the doing or undoing
of act s as in the case of pr o hibit o r y or ma nd a t o r y
injunct ive relief. The further distinct ion is provided by
the pr esent ame nd me nt in the sense t hat , unlike t he
amended rule on rest raining orders, a status quo order
does not require the posting of a bond.
6. Pars, (a) and (b) of this amended section were

taken from the original Sec. 4 of this Rule, with the addition
to their coverage of temporary rest raining orders. With
respect to Par. (b), a further modification provides for the
sit uat ion where, in proper cases, the court may exempt
the applicant from filing the bond normally required.
Pars, (c) and (d) were taken from Pars. 1 and 2 of
Administ rat ive Circular No. 20-95, providing special rules
for t e mp o r a r y r e s t r a i n i n g o r der s and p r e l i m i n a r y
injunct ions, effective October 1, 1995. This contemplates
a co mp la i n t or ot her init iat o r y p lead i ng wher e an
applicat ion for a writ of preliminar y injunct ion or a
t emporar y r est r aining order is included t herein, and
prescribes the procedure to be followed by the executive
judge.
If it is a mult iple-sala court, notice shall be given to
the adverse part y or the person to be enjoined and their
presence is required before the case may be raffled. In
addition thereto, just as in levy on preliminary attachment,
there must be proof of prior or contemporaneous service
of summons with a copy of the complaint or init iatory
pleading and applicant's affidavit and bond on the adverse
part y, unless t he same could not be served on t hem
personally or by subst it ut ed service for the reasons stated
in this section.
735
RULE 58 REM E DI A L LAW C O M P E N D I U M SEC. 6
After the raffle, the records of the case shall be

immediately transmitted to the branch selected, which
shall conduct a summary hearing within 24 hours from
the sheriffs return of service to all the parties who
shall be heard therein. While this section does not
explicitly say so, unlike Par. 4 of Administrative Circular
No. 20-95, the same procedure shall be followed in single-
sala stations, except those applicable only to multiple-sala
stations such as the need and requisites for conducting a
raffle of the case.
Sec. 6. Preliminary injunction not granted without

notice; exception. — No prelimin ary injunction shall
be granted wi th out h earin g and prior notice to the
party or person sought to be enjoined. If it shall
appear from facts sh ow n by affidavits or by the
verified application that great or i rreparable injury
would resu lt to the ap p li can t before the matter
can be h eard on n oti ce , the cou rt to wh i c h the
appli cation for preliminary injunction was made,
may issue ex parte a temporary rest raining 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
twenty-day period, the court must order said party
or person to show cause, at a specified time and
place, why the injunctions sh ou ld not be granted.
The court shall also determine, within the same
period, wh eth er or not the preli minary injuction
sh al l b e g r a n t e d , an d a c c o r d i n g l y i s su e the
corresp on din g order.
H ow ev e r , su b j ec t t o the p ro v i s i o n s o f the
p re c e d i n g s e c t i o n s , i f the mat t e r i s of ext rem e
u rg e n c y an d the a p p l i c a n t wil l su ff e r g rav e
injustice and irreparable injury, the executive judge
of a multiple sala court or the presidin g judge of a
single- sala court may issue ex parte a temporary
736
RUL E 58 P R E L I M IN AR Y INJ UNCTIO N SEC . 5
r e s t r a i n i n g o r d e r effect ive for only se v e nt y- t w o (72)

h o u r s ne x t p r e c e d i n g s e c t i o n a s t o s e r v i c e o f
s u m mo n s an d the d o c u me nt s t o b e ser ved t he r e w i t h .
T he r e a ft e r , w it h i n the a fo r e sa i d s e ve nt y- t w o (72)
ho u r s , t he judg e befor e who m t he cas e i s p e n d i n g
sha l l c o n d u c t a s u m m a r y h e a r i n g t o d e t e r m i n e
w he t h e r the t e m p o r a r y r e s t r a i n i n g o rde r shal l b e
e x t e n d e d u nt i l t he a p p l i c a t i o n for p r e l i m i n a r y
i n j u nc t io n ca n b e he ar d . I n n o cas e sha ll t he t ot a l
per io d of effect ivit y of the t e m p o r a r y r e s t r a i n i n g
o r de r exceed t went y (20) da ys, inc lud in g the o r ig ina l
s e ve nt y- t w o (72) ho u r s pr o vid e d her e i n .
I n t he eve n t t hat t he a p p l i c a t io n for pr e li m • inar
y i n j u nc t io n i s de n ie d o r no t r eso lve d w it h in t he
said p er io d , t he t e mp o r a r y r e s t r a i n i n g o r de r i s dee me
d a u t o ma t i c a l l y vacat ed . The effect ivit y of a
t e m p o r a r y r e s t r a i n i n g o r d e r i s no t e x t e n d i b l e
w it ho u t nee d o f an y j u d i c i a l d e c l a r a t i o n t o t hat
effect, an d n o Co ur t shall hav e a u t ho r i t y t o ext e n d
o r r ene w the sa m e o n the sam e gr o u n d for whic h i t
wa s issued .
Ho we ver , i f is sue d by the Co urt of Ap p ea l s or a
m e m b e r t her eo f, the t e m p o r a r y r e s t r a i n i n g o r de r
sha ll be effect ive for sixt y (60) day s from ser vic e on
t he p a r t y o r p e r s o n s o u g h t t o b e e n j o i n e d . A
r e s t r a i n i n g o r d e r issued by the S u p r e m e C o u r t or a
m e m b e r t h e r e o f s ha l l b e e ffect ive u nt i l f u r t h e r
o r der s .
The t r ia l c o u r t , t he C o u r t o f A p p e a l s , t he
S a n d i g a n b a y a n o r the Co ur t o f Tax App e a l s t hat
issued a wr i t of pr e l i m i na r y injuct ion aga ins t a lower
co urt , bo ar d , officer, or quas i- jud ic ia l agenc y sha ll
d e c id e t he ma i n cas e o r p e t it io n w it h i n six (6) mo nt h
s from the issua nc e of the wr it . (As amended in A.M.
No. 07-7-12-SC, effective Dec. 27, 2007)
737
NOTES
1. Formerly, if an ex parte injunction was not proper,

a restraining order may be availed of in the meant ime.
While the Rules t hen made no specific provisions for
restraining orders, the same were deemed to be within
the inherent powers of the court (see Sec. 5, Rule 135).
As amended by B.P. Blg. 224, Sec. 5 also provided for and
regulated the issuance of restraining orders to maintain
the status quo unt il the hearing of the application for
t emporary injunct ion. No bond was required for the
issuance of a restraining order to maintain the status quo
unt il t he he ar ing of the app licat io n for t empor ar y
injunction. No bond was required for the issuance of a
restraining order (BF Homes, Inc. vs. CA, et al., L-30690,
Nov. 19, 1982). See the discussion thereon in Dionisio,
et al. vs. CFI, et al. (G.R. No. 61048, Aug. 17, 1983), and
Par. 8 of the I nt er im Rules which incorporated such
amendment in toto (cf. Ortigas & Co. vs. Ruiz, et al., L-
33952, Mar. 9, 1987). The 20-day period of efficacy of a
temporary rest raining order was non-extendible; the order
automatically t erminat ed at the end of such period without
the need of any judicial declaration to that effect and the
courts had no discret ion to extend the same (Golden Gate
Realty Corp. vs. IAC, et al., G.R. No. 74289, July 31,
1987).
2. This amended section retains most of the foregoing

features but with some modifications and exceptions to
the general provisions of Sec. 4. The limited period of the
effectivity of the rest raining order in the trial courts
remains the same but the period for such orders issued by
the Court of Appeals has been increased to 60 days. It
had former ly been held t hat the 20-day limit also
applied to said appellate court (Delbros Hotel Corp. vs.
IAC, et al., G.R. No. 72566, April 12, 1988; Laviha, et al.
vs. CA.etal, G.R. Nos. 78285 una 79917, April 10, 1989).
Such limited period did not and does not apply to the
738
RUL E 58 P R E L I M IN AR Y INJUN CTIO N SEC . 5
Supreme Court and its temporary rest raining orders shall

be effective unless and until it directs otherwise.
Also, the rule against non-extendibilit y of the limited
periods of effectivity of the order is maint ained for all
courts covered thereby. However, the prohibit ion against
the renewal of the order applies only if the same is sought
under and by reason of the same ground for which it was
originally issued. If a new ground supervenes while the
original period still subsists or after it has t erminat ed,
which the court finds to be different from the original
ground but sufficient to warrant the same restraint, it may
renew the original rest raining order or issue anot her one,
as the case may be, but also subject to the same limited
periods of effectivity and t erms.
3. The second p a r a gr a p h , which was Par . 3 of
Administ rat ive Circular No. 20-95, is an exception to the
preceding rule, to enable the court to respond to a mat t er
of extreme urgency wherein the applicant will suffer grave
injustice and irreparable injury. The executive judge of
a mult iple-sala court, or the presiding judge of a single-
sala court, is empowered to issue ex parte a temporary
rest raining order but (1) it shall be effective for only 72
ho ur s, (2) he shall im med iat ely comply wit h Sec. 4
r e g a r d in g ser vice of s u m mo n s and a cco mp a n yi n g
document s, and (3) he shall conduct a summary hearing
within said 72 hours to determine whet her the restraining
orde r shal l be e xt e nd e d unt i l the ap p l ic at io n for
preliminary injunction can be heard.
4. It will be noted t hat, as a rule, the period of

effectivity of a temporary restraining order is 20 days from
notice to the party or person to be enjoined. In the special
sit uat ion under the second paragraph of this section, the
20-day period is also maintained with the specification that
the original 72 hours shall be included therein. Since
the original 72 hours is reckoned from its issuance, it
results t hat in this situat ion contemplated in the second
739
RUL E 68 REM E DI A L LAW C O M P E N D I U M SEC S
paragraph, the 20-day period shall be computed from the

date of issuance of the temporary restraining order, and
not the date of its receipt by the adverse party or person
sought to be enjoined. After all, the antecedents and fact
of issuance will be readily known by the parties during
the hearing required to be conducted within said 72 hours.
5. Injury is considered "irreparable" if it is of such
co nst an t and fr eque nt r ecur r e nc e t hat no fair or
reasonable redress can be had therefor in a court of law
(Ollendorff vs. Abrahamson, 38 Phil. 585), or where there
is no standard by which their amount can be measured
with reasonable accuracy, t hat is, it is not susceptible of
mat he mat ical co mput at io n (SSC vs. Bayona, et al., L-
13555, May 30, 1962).
6. In an action for prohibit ion with preliminar y
injunction against a judge alone to prevent him from trying
a criminal case for illegal possession of explosives, the
posting of a bond by plaintiff is not required since no
private party will be prejudiced (Lim vs. Callejo, L-27086,
July 24, 1981).
7. A rest raining order, like an injunction, operates
upon a person and has no in rem effect to invalidate an
action done in contempt of a court order, except where by
statutory aut horizat ion the decree is so framed as to act
in rem on property (Auyong Hian vs. CTA, et al., L-28782,
Sept. 12, 1974).
8. The amount of the bond required for the issuance
of a writ of pr eliminar y injunct ion, and subsequent
reductions in the amount thereof, are addressed to the
sound discretion of the court and will not be interfered
with absent a showing of grave abuse of discretion (San
Miguel, et al. vs. Elbinias, et al, L-48210, Jan. 31, 1984).
The same rule should apply to restraining orders.
740
RUL E 58 P R E L I M IN AR Y INJUN CTIO N SE C S . 6-7
Sec. 6. Grounds for objection to, or for motion of

dissolution of, injunction or restraining order. — The
app li cati on for injunction or rest rai nin g order may
be d en i ed , upon a sh owi n g of its insufficien cy. The
i nj un cti on or rest rain in g order may also be d eni ed,
or, i f grant ed, may be dissolved, on other grou nd s
upo n affi d avit s of the party or p erson en j oi n ed,
wh i c h ma y be op p ose d by the ap p li can t also by
affidavit s. It may further be d eni ed, or, if granted,
may be d i ssolved, if it app ears after h eari ng that
alt h ou gh the app li cant i s en tit led to the injunction
or re st rai n i n g order, the i ssu an ce or con t i n u an ce
thereof, as the case may be, would cause irreparab le
damage to the party or person enjoined whi le the
a p p l i c a n t ca n b e fu ll y c o m p e n s a t e d for su c h
damages as he may suffer, and the former files a bond
in an amoun t fixed by the court con d it ioned that
he will pay all d amages whi ch the app li cant may
su f fe r b y the d e n i a l o r the d i s s o l u t i o n o f the
i nj un cti on or rest rain in g order. If it app ears that
the e x t e n t o f the p r e l i m i n a r y i n j u n c t i o n o r
re st rai n i n g ord er gran t ed is too great, i t may be
modified. (6a)
Sec. 7. Service of copies of bonds; effect of disapproval

of same. — The party filing a bond in accord an ce
wit h the p ro vi si on s of this Rule shall fo rt h wi t h
serve a copy of such bond on the other party, who
may excep t to the sufficien cy of the bond, or of the
surety or su ret i es t h ereon. If the applicant' s bond
is found to be insufficient in amount, or if the surety
or s u r e t i e s t h e r e o n fail to j u st i fy, an d a bond
s u f f i c i e n t i n a m o u n t wit h s u f f i c i e n t s u r e t i e s
approved after justifi cation is not filed forthwith,
the injunction shall be dissolved. If the bond of the
adverse party is found to be insufficien t in amount,
or the su rety or su ret i es t hereon fail to justify a
bond sufficient in amount with sufficient su reti es
741
approved after justification is not filed forthwith,

the injunction shall be granted or restored, as the
case may be. (8a)
NOTES
1. Injunction, under these sections, may be refused

or dissolved if:
(a) The complaint is insufficient;
(b) The defendant is permitted to post a counter-bond,
it appearing t hat he would sustain great damage while
the plaintiff can be amply compensated; and/or
(c) On other grounds, as where the bond posted by
the applicant turned out to be insufficient or defective.
2. The filing of a counter-bond does not necessarily
warrant dissolution of the injunction as the court has to
assess the probable relat ive damages (Director of the
Bureau of Telecommunications vs. Aligaen, L-31135,
May 29, 1970).
3. A mot ion for t he disso lut io n of t he writ of
preliminar y injunct ion must be verified (Canlas vs.
Aquino, L-16815, July 24, 1961).
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 clai med, ascert ain ed, and
awarded under the same p rocedu re prescribed in
section 20 of Rule 67. (9a)
NOTES
1. The procedure for claiming damages on the bond

is the same as that in preliminary att achment (see notes
under Sec. 20, Rule 57; cf. Luzon Surety Co., Inc. vs.
Guerrero, L 20705, June 20, 1966).
742
RUL E 58 P R E L I M IN AR Y IN J UN C TIO N SEC . 8
2. Recovery of damages for irregular issuance of

injunction, as where the main case is dismissed and the
injunction is dissolved, is limited to the amount of the bond.
Malice or lack of good faith on the part of the part y who
procured the injunct ion which was later dissolved is not
required as a prerequisite for recovery by the injured party
on said bond (Aquino vs. Socorro, L-23868, Oct. 22, 1970).
If t here was malice, there is a right of action in a civil case
for malicious prosecut ion (Molina vs. Somes, 24 Phil. 66,
reit erat ed in Aquino vs. Socorro, supra).
3. Where the bond was posted for the purpose of

securing a writ of preliminary injunction in a prohibit ion
case inst it ut ed against a judge for his refusal to inhibit
himself from trying a criminal case for illegal possession
of explosives, no claim for damages can be assessed against
said bond, t here being no privat e party who would be
prejudiced, and any damage or expense incurred by the
judge in connect ion wit h the case would be official in
nat ure and for which no fund of privat e origin has to
answer (him vs. Callejo, supra).
4. See Sec. 4, Rule 39 regarding the effect of an
appeal from a judgment in an action for injunction and
the powers of the trial court during the pendency of such
appeal.
For the text of Sec. 9 of this Rule, see Sec. 1, ante,
UNDE R which the for mer ha s been t r a ns p o s e d for
complement ary reading.
743
RULE 59
RECEIVERS H IP
S ect ion 1. Appointment of receiver. — Upon a

verified application, one or more receivers of the
p rop e rt y wh i c h i s the su bj ec t of the act i o n or
p ro c e e d i n g may be ap p o i n t e d by the Court of
App eals or by the S u p reme Court, or a member
thereof, in the following cases:
(a) When it appears from the verified appli•
cat i on , and suc h ot he r proof as the Cou rt 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 suc h p rop ert y or fund is in d an ger of
being lost, removed, or materially injured unless a
receiver be appoint ed to ad minist er and preserve
it;
(b) Whe n i t a p p e a r s in an a ct i o n by the
mortgagee for foreclosu re of a mortgage that the
p ro p e rt y i s i n d a n g e r o f b ei n g d i s s i p a t e d o r
materially injured, and that its value is probably
insufficient to discharge the mortgage debt, or that
the parti es have so st ip u lat ed in the cont ract of
mortgage;
(c) After judgment, to preserve the property
durin g the pend en cy of an appeal, or to dispose of
it according to the judgment, or to aid execution
when the execution has been returned unsatisfied
o r the j u d g m e n t ob li go r re f u s e s t o ap p l y his
p ro p e r t y i n s a t i s f a c t i o n o f the j u d g m e n t , o r
otherwi se to carry the ju dgment into effect;
(d) W h e n e v e r in ot h e r c a s e s i t a p p e a r s
that the a p p o i n t m e n t of a recei ve r is the most
c o n v e n i e n t and fe as i b l e m ean s o f p re s e rv i n g ,
744
RUL E 59 RECEI VER SHI P SEC . 1
a d m i n i s t e r i n g , o r d i s p o s i n g o f the p ro p e rt y in
li t igat ion.
D u r i n g the p e n d e n c y o f a n a p p e a l , the
ap p el lat e cou rt may allow an app li cati on for the
ap p oi n t men t of a recei ver to be filed in and d ecid ed
by the court of origin and the recei ver ap poin ted to
be subject to the control of said court, (la)
NOTES
1. The former Par. (a) of Sec. 1 of this Rule, which

referred to receivership when a corporat ion has been
dissolved or is insolvent and so forth, has been deleted
from t his amended section as such sit uat ions are now
governed by the Corporation Code. For the same reason,
the former Sec. 2 of this Rule regarding an application by
a creditor or stockholder for receivership over a corporation
has not been reproduced here.
2. Receivership, like injunction, may be the principal
action itself (see Sec. 4, Rule 39) or just an ancillary remedy
if a principal action is indicated under the circumstances
of the case since, generally, the courts and quasi-judicial
agencies may appoint receivers in cases pending before
them.
3. A receiver is a person appointed by the court in
behalf of all the parties to an action for the purpose of
preserving the property involved in the suit and to pro•
tect the rights of all the parties under the direction of the
court (see Cia. General de Tabacos vs. Guanzon, 20 Phil.
216; Normandy vs. Duque, L-25407, Aug. 29, 1969;
Mallari vs. CA, et al, L-26467, July 15, 1981). As a rule,
a party to a litigation should not be appointed as a receiver
without the consent of the other parties thereto (Alcantara
vs. Abbas, L-14890, Sept. 30, 1963). A clerk of court should
not be appointed as a receiver as he is already burdened
with his official dut ies (Abrigo vs. Kayanan, L-28601,
Mar. 28, 1983).
745
RULE 09 REM E DI A L LAW COMPENDIU M SEC. 2
4. While the perfection of an appeal deprives the trial

court of jurisdict ion over the case, the trial court can
appoint a receiver since this does not involve any matter
lit igated by the appeal. While the Supreme Court has
jurisdiction to appoint a receiver, the trial court has the
better facilities and opportunity to determine the property
under receivership (Velasco & Co. vs. Go Chuico, et al.,
28 Phil. 39). Also, despite such appeal, the trial court
retains the power to issue orders for the protection and
preservation of the rights of the parties (Sec. 9, Rule 41).
This sit uat ion is now specifically dealt with by the
last paragraph of this amended Sec. 1 which provides that
the appellate court may allow the applicat ion for the
appoint ment of a receiver to be filed in and decided by the
court a quo which shall also have control over such
receiver.
5. Where the action is merely to obtain a money
judgment on unpaid credits and not to enforce a lien upon
specific pr o pert y or funds in the possession of the
defendant, the appoint ment of a receiver is improper
(Bonaplata vs. Ambler, et al., 2 Phil. 392; Arez, et al. vs.
Wislizenus, et al., 26 Phil. 625). Also in actions involving
possession of or title to real property, the appoint ment of
a receiver may be made only if there is a clear necessity to
protect the applicant from grave or irremediable damages
(Medel, et al. vs. De Aquino, et al., 92 Phil. 895; Camiling
vs. De Aquino, 103 Phil. 128). Appoint ment of a receiver
is not proper where the rights of the parties, one of whom
is in po ssessio n of t he pr o per t y , depend on the
determinat ion of their respective claims to the title of such
property (Calo, et al. vs. Roldan, 76 Phil. 445), unless
such property is in danger of being materially injured or
lost, as by the prospect ive foreclosure of a mortgage
thereon or portions thereof are being occupied by third
persons claiming adverse title t hereto (Motomull vs.
Arrieta, L-15972, May 31, 1963).
746
RUL E 59 RECEI VER SHI P SEC . 1
6. A proceeding for the appoint ment of a receiver was

formerly commenced by a verified pet it ion and not by
motion. Such pet it ion should allege all the necessary
facts just ifying the appo int me nt of a receiver, wit h
support ing affidavits. A defect in the procedure does not
affect the jur isd ict io n of the court but war r a nt s t he
dismissal of the application (Velasco & Co. vs. Go Chuico,
et al, supra; Medel, et al. vs. De Aquino, et al., supra). As
amended, this section would now allow a verified motion
to be filed where t he rece ivership sought is only an
incident in the main action.
7. Formerly, city courts and municipal court s in

provincial and sub-provincial capitals had jurisdict ion to
appoint a receiver in the absence of the District Judge
(Sec. 88, R.A. 296). Under B.P. Blg. 129, all inferior courts
now have jurisdict ion to appoint a receiver if the main
case is wit hin t heir jurisdict ion (Sec. 33).
8. Unlike the other provisional remedies which can
be availed of only before final judgment, receivership may
be resorted to even after the judgment has become final
and executory. Thus, under Sec. 1(d), it can be availed
of to aid execution or to carry the judgment into effect
(see Sec. 41, Rule 39).
9. The appoint ment of a receiver during the pendency
of the action is int erlocutory in nat ure and cannot be
compelled by mandamus, but certiorari will lie if there was
grave abuse of discret ion (Samson vs. Barrios, 63 Phil.
199; Berbari vs. Imperial, et al, 43 Phil 222).
Sec. 2. Bond on appointment of receiver. — Before

i ssu i n g the order ap p oin ti ng a receiver, the court
shall requi re the app li cant to file a bond execut ed
t o the p art y a g a i n s t wh o m the a p p l i c a t i o n i s
p resent ed, in an amount to be fixed by the court, to
the effect that the applicant will pay such party all
747
RULE 69 REM EDIAL LAW COMPENDIU M SEC S 3-4
damages he may sustain by reason of the appoint•

ment 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 app oi nt ment, require an additional
bond as further secu rity for such damages. (3a)
NOTE
1. Under the former Rule, a bond for the appoint•

ment of a receiver was not generally required of the
applicant, except when the application was made ex parte.
No such distinction is made under this amended section
and a bond shall always be required from the applicant.
In fact, an additional bond may subsequently be required
by the court in the exercise of its sound discretion in light
of developments in the case.
Sec. 3. Denial of application or discharge of receiver.

— The application may be denied, or the receiver
d i sch arged, whe n the ad verse party files a bond
execu ted 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, omi ssi on s, or other matters specified in
the app li cati on as ground for such ap point ment.
The recei ver may also be discharged if it is shown
t hat hi s a p p o i n t m e n t wa s o b t a i n e d w i t h o u t
sufficient cause. (4a)
Sec. 4. Oath and bond of receiver. — B efor e

entering upon his duties, the receiver shall be sworn
to perform them faithfully, and shall file a bond,
execu ted to such person and in such sum as the
court may direct, to the effect that he will faithfully
d i sch arg e his d u t i e s in the acti on and obey the
orders of the court. (5a)
748
RUL E 59 RECEI VER SHI P SE C S . 5, 6
Sec. 6. Service of copies of bonds; effect of disap•

proval of same. — The p e r s o n f i l i n g a bo n d in
a c c o r d a n c e wit h t he pr o v is io n s o f t hi s Rule s ha l l
f o r t h w i t h s e r v e a co p y o f s u c h bo n d o n e a c h
i n t e r e s t e d par t y , wh o ma y e xcep t t o it s sufficiency
o r o f t he s ur et y o r sur et ie s t he r e o n . I f e it he r the
a p p l i c a n t ' s o r t he r e c e i v e r ' s bon d i s found t o b e
insu f f ic ie nt i n a mo u nt , or i f the sur et y or sur et ie s
t h e r e o n fail t o ju s t i f y an d a bo n d s u f f i c i e n t i n
a m o u n t wit h s u f f i c ie n t s u r e t i e s a p p r o v e d aft e r
ju st i f ic at io n i s no t filed fo r t hw it h , the a p p l i c a t io n
sha ll b e de nie d , o r the r ece ive r d is c h a r g e d , a s the
cas e ma y be. I f the bon d of the a d ve r s e par t y i s fo und
t o b e insu ff ic ie nt i n a mo u n t o r t he sur et y o r sur et ie s
t he r e o n fail to just ify, an d a bond sufficient i n
a m o u n t wit h suffic ie nt sur et ie s a p p r o ve d aft er
just if icat io n i s no t filed fo r t hw it h , the r ece ive r shall
b e a p p o i nt e d o r r e- a p po int e d , a s t he cas e ma y be.
(6a)
NOTE
1. A receivership may be denied or lifted (a) if the

appoint ment sought or granted is without sufficient cause,
as were there is no necessity therefor or it is not a proper
case for receivership, (b) if the adverse party files a
sufficient bond to answer for damages, (c) where the bond
posted by the applicant for the grant of receivership is
insufficient, or (d) if the bond of the receiver is insufficient.
Sec. 6. General powers of receiver. — S ubject to the

co nt r o l of the Co urt in whic h the act ion i s pe nd ing ,
a r ece ive r shall hav e the po we r to br in g an d defend,
i n suc h c ap ac it y , act io n s i n his ow n na me ; t o t ak e
an d kee p po sse s s io n of the pr o per t y in co nt r o ver s y ;
t o r e c e i v e r e nt s ; t o co llect debt s du e t o hi ms e l f
a s r ece ive r o r t o the fund, pr o per t y , es t at e , per so n ,
o r c o r p o r a t i o n o f w h ic h h e i s t he r e c e i v e r ; t o
749
RUL E 59 REM EDIAL LAW CO M P EN DI U M SEC. 6
compound for and compromise the same; to make

transfers; to pay out stand in g debts; to divide the
money and other property that shall remain among
the person s legally entitled to receive the same; and
generally to do such acts resp ecting 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 wri t t en con sen t of all the
parties to the action. (7a)
No action may be filed by or against a receiver
without leave of the court whi ch appointed him. (n)
NOTES
1. This is another instance where a person who is

not the real part y in interest is authorized to sue as a
representat ive part y under Sec. 3, Rule 3.
2. Receivership cannot be effected with respect to
property in custodia legis (Lizarraga Hnos. vs. Abada, 40
Phil. 124), but where the property in the custody of an
administ rator or executor is in danger of imminent loss or
injury, a receiver t hereover may be appoint ed by the
probate court (Dolor vs. Sindian, L-27631, April 30, 1971).
3. Cont racts executed by a receiver wit hout the
approval of the court constitute his personal undertakings
and o bl igat io ns (Pacific Merchandising Corp. vs.
Consolacion Insurance & Surety Co., Inc., et al., L-30204,
Oct. 29, 1976).
4. The last paragraph requiring leave of court for
all suits by or against the receiver has been added in order
to enhance the supervisory power and control by the court
over the performance by the receiver of his duties, and to
forestall any undue int er fer ence t her ewit h t hrough
improvident suits.
750
RUL E 59 RECEI VER SHI P SE C S . 7, 8
Sec. 7. Liability for refusal or neglect to deliver

property to receiver. — A person who refuses or neglect s,
upon reason ab le d emand, to deliver to the recei ver
all the property, money, books, deeds, notes, bills,
d ocu m en t s and papers within his power or control,
subject of or involved in the action, or in case of
d i s ag re e m en t , as d et ermi n ed and o rd ered by the
court, may be p u n i sh ed for con tempt and shall be
liable to the recei ver for the money or the value of
the p rop ert y and other t h in gs so refused or neg•
lected to be su rren d ered, togeth er with all d amages
that may have been sustained by the party or parties
ent it led t h eret o as a con seq u en ce of such refusal
or n eglect, (n)
NOTE
1. These sanct io ns, cont empt and damages, are

considered necessar y and just ified to obviate the dis•
respectful practice of those who would trifle with court
orders by wit hho lding cooperat ion from the receiver,
intent ionally or through neglect. Contempt proceedings,
direct or indirect, depending on the acts committed, provide
a more expeditious mode of resolving disputes over property
sought to be placed UNDE R receiver ship unless t he
controversy actually calls for a civil action to resolve the
issue of ownership or possession. Since, as noted earlier,
the receiver legally represent s all the parties to the action,
the damages arising from refusal or neglect to surrender
to him the propert ies to be placed under his management
shall inure in favor of said part ies.
Sec. 8. Termination of receivership; compensation of

receiver. — When ever the court, motu proprio or on
mot ion of ei t h e r party, shall d et erm i n e that the
n ecessi ty for a receiver no longer exists, it shall,
aft er du e n ot i c e t o all i n t e r e s t e d p a rt i e s an d
hearing, settle the accounts of the receiver, direct
751
the delivery of the funds and other property in his

possession to the person adjudged to be entitled to
re c e i v e t h em , an d ord e r the d i s c h a rg e o f the
receiver from further duty as such. The court shall
allow the receiver such reasonab le comp en sat ion
as the ci rcu m st an ce s of the case warran t, to be
t axe d a s cost s a g a i n s t the d e f e a t e d p art y , o r
app orti on ed, as justice requires. (8a)
Sec. 9. Judgment to include recovery against sureties.

— The a m o u n t , i f any , to be a w a rd e d to any
p art y upo n an y bond filed in a c c o rd a n c e with
the p r o v i s i o n s o f t hi s Ru le , sh al l b e clai m ed ,
ascert ai ned, and granted under the same procedure
as prescribed in section 20 of Rule 57. (9a)
NOTES
1. See notes under Sec. 20, Rule 57.

2. Where, however, the damages sustained were not
by reason of the appoint ment of the receiver but due to
the receiver's own malfeasance, the recovery for damages
shall be against the bond of the receiver and may be
recovered in a separate action, and not by mere motion in
the case wherein the receivership was granted (De la Rosa
& Co. vs. De Borja, 53 Phil. 990).
3. A judgment in a receivership action shall not be
stayed after its rendition and before an appeal is taken or
dur ing the pendency of an appeal, unless ot herwise
ordered by the court (Sec. 4, Rule 39).
752
RULE 60
RE P LE VI N
S ect io n 1. Application. — A par t y p r a y i n g for

t he r e c o v e r y o f p o s s e s s io n o f p e r s o n a l p r o p e r t y
ma y , a t t he c o m m e n c e m e n t o f the act io n o r a t an y
t im e be fo r e a n s w e r , a p p l y for a n o r d e r for t he
d e l i ve r y o f suc h p r o p e r t y t o him , i n the m a n n e r
h e r e i n a ft e r p r o vid e d , ( la )
NOTES
1. This provisional remedy of replevin is available

where the principal purpose of the action is to recover the
possession of personal propert y. Where proper, replevin
must be applied for before the answer ; at t ac hme nt ,
injunction and support pendente lite, at any time before
final judgment ; and receivership, at any stage of the action
and even after final judgment.
2. Under Sec. 1(c), Rule 57, the writ of preliminar y
a t t a c hme n t is available in an act ion to recover the
possession of personal property unjustly detained, which
would make it similar to a replevin proceeding. However,
the two remedies are distinguishable as follows:
a. Replevin is available only where the principal
relief sought in the action is the recovery of possession of
personal propert y, the other reliefs, like damages, being
merely incidental thereto; attachment is available even if
the recovery of personal property is only an incidental relief
sought in the action.
b. Replevin can be sought only where the defendant
is in the actual or constructive possession of the personalt y
involved, while attachment may be resorted to even if the
personal property is in the custody of a third person.
753
RUL E 60 REM E DI A L LAW COMPENDIU M SEC. 2
c. Replevin extends only to personal property capable

of manual delivery, while att achment extends to all kinds
of pro pert y w het he r r eal, per so na l or incorporeal
(Machinery & Engineering Supplier, Inc. vs. CA, et al.,
96 Phil. 70).
d. Replevin is available to recover personal property
even if the same is not being concealed, removed or
disposed of, while attachment to recover the possession of
personal property unjustly detained presupposes that the
same is being concealed, removed or disposed of to prevent
its being found or taken by the applicant.
e. Replevin cannot be availed of if the property is in
custodia legis, as where it is under att achment (Montesa
vs. Manila Cordage Co., 92 Phil. 25) or was seized under
a search war r ant (Pagkalinawan vs. Gomez, L-22585,
Dec. 18, 1967; Sec. 2[c] of this Rule), while att achment
can still be resorted to even if the property is in custodia
legis (Sec. 7, Rule 57, last par.).
3. While Sec. 1 of this Rule formerly provided for
the writ of replevin at the instance of the plaintiff, the
same provisional remedy was held to be available to the
defendant on his co unt er cla im (Pongos vs. Hidalgo
Enterprises, Inc., 84 Phil. 499) and to any other party
assert ing affirmative allegat ions praying for the recovery
of personal property unjustly detained. Sec. 1 has been
accordingly amended.
Sec. 2. Affidavit and bond. — The a p p l i c a n t mus t

show by hi s ow n a ffidavit or t hat of som e ot he r
per so n wh o per so na l l y k no w s the fact s:
(a) T hat t he a p p l i c a n t i s t he o w ne r o f the
pr o per t y c la i med, p a r t ic u l a r l y d e s c r i b i n g it, or i s
ent it led to the po ssess io n t hereo f;
(b) That the p r o per t y i s wrongfully det a in e d
by the adver se part y, alleging the cause of det e nt io n
754
RUL E 60 R E P L E VI N SEC . 3
t h e re o f a c c o rd i n g t o the best o f hi s k n o w l e d g e ,
i n formati on, and belief;
(c) That the property has not been di st rai n ed
or taken for a tax asses sm en t or a fine p u rsu an t to
law, or sei ze d UNDER a writ of e xe c u t i o n or pre•
li mi n a ry at t ach m en t , or ot h e rwi s e p laced UNDER
custodia legis, or if so seized, that it is exempt or
shou ld be released from such seizure or custody; and
(d) The actual market value of the p roperty.
The ap p li cant must also give a bond, exe cu t ed
to the ad v e rs e p arty in d ou b l e the valu e of the
property as stated in the affidavit afo re men t i on ed ,
for the retu rn of the p rop erty to the ad verse party
i f the ret u r n t h e r e o f b e a d j u d g e d , an d for the
p aymen t to the adverse party of such sum as he may
recover from the ap p li cant in the action. (2a)
NOTE
1. In replevin, the bond to be posted by the applicant

must be double the value of the property sought to be
recovered; in at t achment , the bond is in such amount as
may be fixed by the court, not exceeding the applicant 's
claim or equal to the value of the property to be attached;
in injunction, the amount of the bond must also be fixed
by the court; while in receivership, a bond is now always
required of the applicant and shall be in the sum fixed by
the court in its discretion.
Sec. 3. Order. — Upon the filing of such affidavit

and app roval of the bond, the court shall i ssu e an
ord e r an d the c o r r e s p o n d i n g wri t o f re p l e v i n
d e s c ri b i n g the p e rso n a l p rop e rt y al l e ge d to be
w ro n g f u l l y d e t a i n ed , and re q u i ri n g the sh eri f f
forthwith to take such property into his cu stody.
(3a)
755
RUL E 60 REM EDIAL LAW CO M PEN DI U M SECS. 4-6
S e c . 4 . Duty of the sheriff. — U p o n r e c e i v i n g

s uc h or de r , the s h e r i f f m us t s e r v e a c op y t h e r e o f o n
t h e a d v e r s e p a r t y , t o g e t h e r w i t h a c o p y o f t he
a p p l i c a t i o n , af fi d a vi t an d b on d , an d m u s t f or t h w i t h
t ak e the p r o p e r t y , i f i t b e i n the p o s s e s s i o n o f
t h e a d v e r s e p a r t y o r hi s a g e n t , a n d r e t a i n i t i n hi s
c u s t o d y . I f the p r o p e r t y o r an y par t t h e r e o f b e
c o n c e a l e d i n a b u i l d i n g o r e n c l o s u r e , the s he r i f f
m u s t p u b l i c l y d e m a n d it s d e l i v e r y , a n d i f i t b e no t
d e l i v e r e d , h e m us t c a us e the b u i l d i n g o r e n c l o s u r e
t o b e b r o k e n o p e n a n d t a k e t h e p r o p e r t y i n t o hi s
p o s s e s s i o n . A f t e r t he s h e r i f f h a s t a k e n p o s s e s s i o n
o f the p r o p e r t y a s h e r e i n p r o v i d e d , h e m us t ke e p i t
i n a s e c u r e p l a c e a n d s h a l l b e r e s p o n s i b l e fo r it s
d e l i ve r y t o the par t y e n t i t l e d t h e r e t o up o n r e c e i vi n g
h i s f e e s a n d n e c e s s a r y e x p e n s e s fo r t a k i n g a n d
k e e p i n g the s a me . (4a )
S e c . 5 . Return of property. — If the a d v e r s e p a r t y

o b j e c t s t o the s u f f i c i e n c y o f the a p p l i c a n t ' s b on d , o
r o f th e s u r e t y o r s u r e t i e s t h e r e o n , h e c a n n o t
i m m e d i a t e l y r e q u i r e the r e t u r n o f the p r o p e r t y , bu t i
f h e d o e s no t s o o b j e c t , h e ma y , a t an y t i m e b e f or e
the d e l i v e r y o f the p r o p e r t y t o the a p p l i c a n t , r e q u i r e
the r e t u r n t h e r e o f , b y f i l i n g w i t h the C o u r t w h e r e
t h e a c t i o n i s p e n d i n g a b o n d e x e c u t e d t o th e
a p p l i c a n t , i n d o u b l e the v a l u e o f the p r o p e r t y a s
s t a t e d i n the a p p l i c a n t ' s a f f i d a v i t fo r the d e l i v e r y o f
the p r o p e r t y t o the a p p l i c a n t , i f s u c h d e l i v e r y b e
a d j u d g e d , an d fo r the p a y m e n t o f s uc h s u m t o hi m
a s ma y b e r e c o v e r e d a g a i n s t the a d v e r s e p a r t y , an d
b y s e r v i n g a c o p y o f s u c h b on d o n the a p p l i c a n t .
(5a )
S e c . 6. Disposition of property by sheriff. — I f w i t h i n

f i v e (5 ) d a y s a f t e r t h e t a k i n g o f t h e p r o p e r t y b y t h e
s h e r if f , the a d v e r s e p a r t y d o e s no t o b j e c t t o the
756
RUL E 60 R E P L E VI N SEC . 7
suffic iency of t he bo nd, or of the sur et y or sur et ie s

t he r eo n ; o r i f t he a d ve r s e par t y s o o bject s, an d the
Co urt affir ms its a p p r o va l of the a p p l i c a nt ' s bo nd
or a p p r o v e s a ne w bo nd , or i f t he a d v e r s e p a r t y
r e q u i r e s the r e t u r n o f the p r o p e r t y bu t hi s bo n d i s
o bject ed t o an d found insu ffic ie nt an d h e doe s no t
fo r t hw it h file a n a p p r o ve d bo nd, the p r o p e r t y sha l l
be d e l i v e r e d t o the a p p l i c a nt . I f for an y r e a so n the
p r o p e r t y i s no t deliver ed t o the app lica nt , the sher if f
mus t r e t u r n i t t o the a d ve r s e part y . (6a)
NOTES
1. In order to recover the possession of the personal

propert y which was taken under a writ of replevin, the
defendant must post a redelivery bond as required by Sec.
5 and serve a copy of such bond on the plaintiff wit hin 5
days from the t aking by the officer. Both requirement s
are mandat ory and must be complied with wit hin the 5-
day period (Case, et al. vs. Jugo, et al., 77 Phil. 517).
2. The defendant is ent it led to the ret urn of the

property taken under a writ of replevin, if:
(a) He seasonably posts a redelivery bond;
(b) The plaint iffs bond is found to be insufficient or
defective and is not replaced with a proper bond; or
(c) The property is not delivered to the plaintiff for
any reason.
Sec. 7. Proceedings where property claimed by third

person. — If the p r o p e r t y t ake n is c la i me d by an y
per so n ot he r t ha n the part y aga i ns t who m the wri t
of r ep le v i n ha d been issued or his agent , an d suc h
per so n ma k e s an affidavit o f his t it le t he r e t o , o r
r ig h t t o the po sses s io n t hereof, st at in g the g r o u nd s
t her e fo r , an d ser ve s such affidavit upo n the sher iff
757
while the latter has p ossession thereof, stating the

grounds therefor, and serves such affidavit upon the
sh e ri f f wh i l e the lat t e r ha s p o s s e s s i o n o f the
property and a copy thereof upon the applicant, the
sheri ff shall not be bound to keep the property
under rep levin 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 rep levin as provided in
section 2 hereof. In case of d i sagreemen t as to such
value, the court shall determine the same. No claim
for d a m a g e s for the t a k i n g or k e e p i n g of the
property may be enforced against the bond unless
the acti on t h erefo r i s filed wi t h i n one h u nd red
twenty (120) days from the date of the filing of the
bond.
The sheriff shall not be liable for damages, for
the taking or keep i ng of such property, to any such
third-part y c lai man t if such bond shall be filed.
N o t h i n g h e re i n c o n t a i n e d sh al l p r e v e n t suc h
claimant or any third person from vindicating his
claim to the property, or prevent the applicant from
clai min g d amages again st 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 Phi li pp in es, or any officer duly
rep resen ti ng it, the filing of such bond shall not be
required, and in case the sheriff is sued for damages
as a result of the rep levin, he shall be rep resented
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 approp riated for the purpose. (7a)
758
RUL E 60 R E P L E VI N SE C S . 8 -10
NOTE
1. The provisions of this section are virtually the

same as the rule for t hir d - part y claims in execut ion
(Sec. 16, Rule 39) and in att achment (Sec. 14, Rule 57).
Sec. 8. Return of papers. — The sheriff must file

the order, with his p roceed in gs indorsed t h e reon ,
with the court wi th in ten (10) days after t aki ng the
property men t i on ed t herei n. (8a)
Sec. 9. Judgment. — After trial of the i ssu es,

the Cou rt shal l d et e rm i n e wh o ha s the ri gh t o f
p osses si on to and the value of the property and shall
render j u d gmen t in the alternative for the d eli very
t h ereo f to the party en t it led to the same, or for its
valu e in cas e d eli very can n o t be made, and also
for such d amage s as either party may prove, with
cost s. (9a)
Sec. 10. Judgment to include recovery against sureties.

— The amount , if any, to be award ed to any party
u p o n an y bon d fi le d i n a c c o r d a n c e wi t h the
p ro v i s i o n s of thi s Rule, shall be clai med , ascer•
t ai ned, and granted under the same procedu re as
prescribed in sect ion 20 of Rule 67. (10a)
NOTES
1. Sec. 8 has been amended to reduce from 20 days

to 10 days the period within which the sheriff must file
with the court the papers stated therein.
2. The plaint iff who o bt ains possessio n of the
personal property by a writ of replevin does not acquire
absolute title thereto, nor does the defendant acquire such
title by re-bonding the property, as they only hold the
propert y subject to the final judgment in the action.
759
RUL E 60 REM EDIAL LAW C O M P E N D I U M SECS . 8-10
Consequent ly, a buyer of such propert y under these

circumstances does not acquire title thereto but also holds
the property subject to the results of the suit.
3. When the chattel mortgagor defaults, and the
chatt el mortgagee desires to foreclose the mortgaged
property, he must take the mortgaged property for that
purpose, but if the debtor refuses to yield possession of
the property, the creditor must inst itute a replevin suit,
either to effect a judicial foreclosure directly, or to secure
possession of the mortgaged property as a preliminary to
the sale contemplated under Sec. 14 of Act 1508 (Northern
Motors, Inc. vs. MelencioHerrera, et al, L 32674, Feb. 22,
1973).
4. Where a replevin suit is filed to recover possession
of a vehicle sold in inst allment s prepar at or y to the
foreclosure of the chatt el mortgage thereon, the sums
adjudged to the plaint iff for replevin bond premiums,
sheriffs expenses, costs and attorney's fees can be enforced
not only against the proceeds of the mortgaged vehicle
nor is the recovery of said sums limited to said proceeds.
Such sums are not part of the "unpaid balance of the
purchase price" and Art. 1484 of the Civil Code does not
apply to replevin suits (Universal Motors Corp. vs. Velasco,
et al, L-25140, July 5, 1980).
5. The judgment in a replevin suit is required by Sec.

9 of this Rule to be in the alt ernat ive, i.e., for the delivery
of the property to the party entit led to it if, for instance,
the same had not theretofore been delivered to him since
the adverse party had filed a redelivery bond, or for the
value of the property in case the same cannot be delivered,
plus damages. The order to deliver the property implies
t hat the same is in the condit ion provided for in the
obligat ion. Hence, if it is not in such condition, the
prevailing part y has the right to refuse delivery and,
instead, to ask for the enforcement of the alternative relief
for the payment of its value (Ago, et al. vs. CA, et al,
760
RUL E 60 R E P L E VI N S E C S . 8 -1 0
L-19718, Jan. 31, 1966). This right to refuse to accept

the personalt y for the same reason is also available to said
part y even where he had asked for such delivery pendente
lite.
6. Under Sec. 10 of this Rule, the suret y's liability

under the replevin bond should be included in the final
judgment to prevent duplicit y of suit s or proceedings.
Where the party had seasonably filed a claim for damages
on the replevin bond in the Court of Appeals while the
case was pending therein, but said appellate court ordered
t hat the same be heard by the trial court, and said decision
of the Court of Appeals had become final and executory,
the t r ia l co urt ha s jur is d ict io n t o pas s upon such
application for damages (Malayan Insurance Co., Inc. vs.
Solas, et al., L-48820, May 25, 1979).
7. Sec. 10 provides for the amount to be paid to "any

part y upon any bond filed" under this Rule. Consequently,
the provisions of Sec. 20 of Rule 57 are applicable not
only to the replevin bond of the plaintiff but also to the
redelivery bond posted by the defendant for the lifting of
the writ of replevin. Accordingly, the requisit es for a
valid claim for damages against the surety which issued
the replevin bond must also be complied with in order to
hold liable the suret y on the redelivery bond, and its
liabilit y as ascertained shall likewise be included in the
judgment against the principal (Luneta Motor Co. vs.
Menendez, et al., L-16880, April 30, 1963).
8. A replevin bond is simply intended to indemnify

the defendant against any loss that he may suffer by being
compelled to surrender the possession of the disputed
property pending trial of the action. He cannot recover
on the bond as for a reconversion where he has failed to
have the judgment entered for the ret urn of the property.
The surety is not liable for payment of the judgment for
damages rendered against the plaintiff on a counterclaim
for punit ive damages for fraudulent or wrongful acts
761
RULE 60 REMEDIAL LAW COMPENDIUM SECS. S-io
co mmit t ed by t he plaint iffs and unconnect ed with

defendant's depr ivat ion of possession by the plaintiff.
Even where the judgment is t hat defendant is entitled to
the property but no order was made requiring the plaintiff
to return it or assessing damages in default of return, there
could be no liabilit y on the part of the suret ies unt il
judgment was entered that the property should be restored
(Sapugay, et al. us. CA, et al., G.R. No. 86792, Mar. 21,
1990).
9. A writ of replevin may be served anywhere in the
Philippines. The jurisdiction of a court to hear and decide
a case should not be confused with its power to issue
writs and processes pursuant to and in the exercise of
said jurisdict ion. Applying said rule, Malaloan, et al. vs.
Court of Appeals, et al. [G.R. No. 104879, May 6, 1994]
reit erat ed the dist inction between the jurisdiction of the
trial court and the administrat ive area in which it could
enforce its orders and processes pursuant to the jurisdiction
conferred upon it (Fernandez, et al. us. International
Corporate Bank, et al., G.R. No. 131283, Oct. 7, 1999).
762
RULE 61
S UP P OR T PENDENTE LITE
S ect io n 1. Application. — At the c o m m e n c e m e n t

o f the p r o p e r act io n o r p r o c e e d ing , o r a t an y t im e
p r io r t o t he j u d g m e n t o r fina l o r d er , a ver if ie d
a p p l i c a t io n for s u p p o r t pendente lite ma y be filed
b y an y par t y s t at i n g the g r o u nd s for the c la i m an d
t he f i n a n c i a l c o n d i t i o n s o f bo t h p a r t i e s , an d
a c c o m p a n i e d b y a f f id a v it s , d e p o s i t i o n s o r o t he r
a u t h e nt i c d o c u m e nt s i n s u p p o r t t hereof, (la )
Sec. 2. Comment. — A copy of the a p p l i c a t io n

an d al l s u p p o r t i n g d o c u m e n t s s ha l l b e s e r v e d
upo n the a d ve r s e par t y , wh o sha ll hav e five (5) day s
to co m m e n t on the same , unle s s a differ ent per io d
i s fixed by t he Co ur t upo n hi s mo t io n . The com• me n
t shal l b e ver if ie d an d sha ll b e a c c o m p a n i e d b y
affida vit s, d epo s it io n s o r ot he r a u t he nt i c docu• me nt
s in s u p po r t t hereof. (2a, 3a)
Sec. 3. Hearing. — After the c o m m e n t is filed, or

aft er the e xp i r a t io n of the t im e for its filing, the
a p p l i c a t io n shall b e set for he a r i n g not mor e t ha n
t hr e e (3) day s t he r e a ft e r . The facts in issue shall
be pro ve d in the sam e m a n n e r as i s pr o v id e d for
evide nc e on mo t io ns . (4a)
NOTES
1. Sec. 1 has been amended to make this provisional

remedy available not only to the plaintiff but also to any
party in the action who may have grounds to apply for
the same. Sec. 2 now requires the filing wit hin the
extended period of 5 days of a comment, instead of an
answer as formerly provided, since this Rule involves
763
RULE 61 REM E DI A L LAW COMPENDIU M SECS. 4-5
merely an ancillary remedy. Sec. 3, in turn, now expressly

requires that a hearing on the application be set within
3 days after the filing of the comment or the expiration of
the period therefor.
2. This provisional remedy is available only in an
action for support (Coquia, et al. vs. Baltazar, 83 Phil.
265) or where one of the reliefs sought is support for the
applicant.
3. Where the right to support is put in issue by the
pleadings or the fact from which the right of support arises
is in controversy or has not been established, the court
cannot gr an t suppo r t pendente lite (Francisco vs.
Zandueta, 61 Phil. 752) and the contrary action of the
trial court may be challenged by certiorari.
Sec. 4 . Order. — The Co u r t sha l l d e t e r m i n e

pr o vis io na l l y t he p e r t i ne n t fact s, an d shall r e nde r
suc h o r d e r s a s j u s t i c e an d e q u it y ma y r e q u i r e ,
ha vin g du e r eg ar d t o the pr o ba b l e o ut co m e o f t he
case an d suc h ot he r c ir c u ms t a nc e s as ma y aid i n
the pr o pe r r eso lut io n of the quest io n invo lved. I f
the a pp l ic at io n i s gr a nt ed , the Co urt sha ll fix the
a mo u n t of mo ne y to be pro vis io na l l y paid or such
ot he r forms of su ppo r t as sho uld be pro vided, t ak in g
int o a c c o u n t the ne ce s s it ie s o f the a pp l ic a n t and
the t er m s o f p a y m e n t o r mod e for pr o v id i n g the
suppo rt . I f the a pp l ic at io n i s de nied, the pr inc ip a l
case shall be t r ie d an d dec ide d as ear ly as possible.
(5a)
Sec. 5. Enforcement of order. — If t he ad ve r s e

p a r t y fa ils t o co mp l y w it h a n o r d e r g r a n t i n g
s u p p o r t pendente lite, t he C o u r t s ha l l , motu
proprio or upo n mo t io n, issue an o r de r of execut io n
ag a ins t hi m w it ho u t pr e ju d ic e t o his liabil it y for
co nt e mpt . (6a)
764
RUL E 61 SUP POR T P E N D E N T E LITE SE C S . 4-5
Wh e n the p e rs o n o rd e re d t o giv e s u p p o r t
pendente lite refu se s or fails to do so, any third
person wh o fu rni sh es support to the ap p li can t may,
after due notice and h eari n g in the same case, obtain
a wri t o f e x e c u t i o n t o e n f o rc e hi s ri g h t o f
r e i m b u r s e m e n t a g a i n s t the p ers o n o rd e re d t o
provide such support, (n)
NOTES
1. Since support does not consist merely of giving

money to the beneficiary, the amended Sec. 4 of this
Rule makes mention of "other forms of support" and the
"mode for providing the support." Sec. 5, as amended,
ret ains the sanct ions of bothexecution pendente lite and
contempt against the disobedient party. It also considers
the possibilit y t hat a third person may have furnished
suppo r t to the app l ic a nt , in which case a r igh t of
reimbur se ment is recognized in favor of t hat third person
who may obtain a writ of execution, on motion in the same
case, against the part y who should legally provide such
support.
2. While an order for suppor t pendente lite is

interlocutory, the same, however, is subject to execution.
Being an interlocutory order and one for support, the same
may be modified at any stage of the proceedings. The
remedy, if the order is with grave abuse of discretion, is
cert iorar i with preliminary injunction.
3. The support granted under this Rule is provisional
in nat ure and the actual amount and terms of its pay•
ment shall be determined in the final judgment. If the
judgment is in favor of the defendant, the support pendente
lite is discontinued (Saavedravs. Ybahez Estrada, 56 Phil.
33) and the court should make findings and provisions
for the rest it ut ion of the amounts unjustifiedly received
as support pendente lite. Sec. 7 now provides therefor.
765
RUL E 6 1 REM E DI A L LAW C O M P E N D I U M SECS. 45
4. The Court of Appeals may grant support pendente

lite, during the pendency of the appeal therein, where no
application therefor was filed and/or granted in the trial
court or even if the lat t er had denied an application
therefor (Ramos vs. CA, et al., L-31897, June 30, 1972),
provided t hat the basis for the right to such support has
been proven in the trial court although such findings are
on appeal, or are so proven in the Court of Appeals itself.
5. In determining the sum to be awarded as support
pendente lite, it is not necessary to go into the merits of
the case, it being sufficient t hat the court ascertains the
kind and amount of evidence which it may deem sufficient
to enable it to just ly resolve the application. It is enough
t hat the facts be est ablis hed by affidavit s or other
documentary evidence in the record. While adultery of
the wife is a good defense in an action for support pendente
lite, the failure of the husband to present any evidence
t hereon at the hear ing of the applicat ion for support
pendente lite, despite his allegation thereof, will not bar
her from the right to receive such support pendente lite
(Reyes vs. Ines-Luciano, et al., L-48219, Feb. 28, 1979).
6. Where, in an action for support, plaintiff did not

ask for support pendente lite and appeal was duly perfected
by the defendant from the judgment therein, the trial court
loses jurisdict ion over the case and cannot thereafter issue
an order for execution pending appeal since said order is
a proceeding involving the very matt er litigated by the
appeal (Vasco vs. CA, et al, L-46763, Feb. 28, 1978). P la int iff-
appellee may, however, apply for support pendente lite in
the appellat e court, in line with the doctrine in Ramos vs.
CA, et al., supra.
7. On relevant considerat ions, it should also be
observed t hat during the sett lement of the estate, the
widow and minor or incapa c it at ed childr en of t he
decedent are entit led to receive such allowances as are
766
RUL E 61 S U P P O R T P E N D E N T E LITE SEC . 6
provided by law (Sec. 3, Rule 83; cf. Art. 133, Family

Code).
Sec. 6. Support in criminal cases. — In cr i m i n a l

a c t io n s w he r e t he civil lia bilit y inc lu de s s u p p o r t
for t he o f fs p r i n g as a c o n s e q u e n c e of t he cr i m e
an d the civil a sp ec t t her eo f ha s no t bee n wa ived ,
r eser ve d or inst it ut e d pr io r to its filling, the accuse d
ma y be o r d e r e d to pro vid e s u p po r t pendente lite to
t he c hi l d bo r n t o t he o ffe nd e d p a r t y a l l e g e d l y
b e c a u s e o f t he c r i m e . The a p p l i c a t i o n t h e r e f o r ma
y b e filed s u c c e s s i v e l y b y t he o ffe nd ed p a r t y , he r
p a r e n t s , g r a n d p a r e n t s o r g u a r d i a n an d t he S t at e i
n the c o r r e s p o n d i n g cr im i na l case d u r i n g its
p e n d e n c y , i n a c c o r d a n c e w it h t he p r o c e d u r e
e s t a b l i s h e d U N DE R t hi s Rule, (n)
NOTES
1. This is a new provision and has for its subst ant ive
basis the directive in Art. 345 of the Revised Penal Code
which pert inent ly provides:
"Art. 345. Civil liability of persons guilty of
crimes against chastity. - Persons guilty of rape,
seduction or abduction shall also be sentenced:
1. To indemnify the offended woman;
2. To acknowledge the offspring, unless the law
should prevent them from so doing;
3. In every case to support the offspring."
This sect ion had, however, to be modified since
Art. 345 of the Code included the crime of abduction where
mere lewd designs, without carnal knowledge, is sufficient,
hence t here need not necessarily be an offspring. It
was just ified t her ein because it furt her provided for
indemnity to the victim. Since this section is on the subject
of support for the offspring as a result of the crime, it
767
RULE 61 REM EDIAL LAW COMPENDIU M SEC. 7
presupposes that there had been sexual relations, and this

is true even if such act is only punished as a component of
a composite crime, such as robbery with rape, and is within
the contemplat ion of this section.
2. The right herein granted to the offended party,
her parents, grandparent s, guardian or the State, in that
successive and exclusive order, is in line wit h the
provisions of Art. 344 of the Revised Penal Code and Sec.
5, Rule 110 of these Rules which authorize them to file
the basic criminal complaint and, therefore, should include
such auxiliary remedies as may be permitted therefor.
There should accordingly be no reason to deprive the
hapless offspring from being granted such provisional
support during the pendency of the criminal case wherein
the civil aspect is included. If the civil act ion was
separately inst it uted, support pendente lite can be sought
therein. While it is true that the civil action is suspended
upon the filing of the criminal action (Sec. 2, Rule 111),
the court wherein the former is pending can issue ancillary
writs such as preliminary injunction, attachment or similar
processes which do not go into the merit s of the case
(Babala vs. Abano, 90 Phil. 827) and, with t his new
provision, inclusive of the provisional remedy of support
pendente lite.
Sec. 7 . Restitution. — Whe n t he j u d g m e n t or

final o r de r of the Co urt finds t hat the per so n who
ha s bee n p r o v i d i n g s u p p o r t pendente lite is not
liable t her e fo r , i t shall o r de r the r e c ip i e n t t her eo f
t o r et ur n t o the fo r mer the a mo u nt s a lr e a d y paid wit h
legal int er es t from the dat e s of act ua l pa yme nt ,
w it ho u t pr e ju d ic e t o the r ig h t of the r e c ip i e n t t o
o bt ai n r e i m b u r s e m e n t in a s e p a r a t e act io n from t he
per so n legally obliged to give the suppo rt . Should
the r e c ip i e n t fail t o r e i m b u r s e said a mo u nt s , t he
per so n wh o paid the sam e ma y seek r e i m b u r s e m e n t
768
RUL E 61 SUP POR T P E N D E N T E LITE SEC . 7
t hereof in a separat e action from the p erson legally

obliged to give such support, (n)
NOTE
1. This is anot her new provision intended to provide

a solution to the question of rest itut ion of support paid by
a person who is t hereaft er declared not liable therefor.
While the pract ical problem is posed by the fact t hat the
applicant or recipient may not have the financial ability
to refund the same, as in fact his lack of resources was
one of the bases for the grant of support pendente lite, it
does not mean t hat he is or will always be act ually
impecunious or that there is no other person legally obliged
to give t hat support.
Ac co r ding l y, the part y who was e r r o ne o u s l y
compelled to give support has the following remedies:
(1) He can apply for an order for such reimbursement by
the recipient on motion in the trial court in the same case,
unless such rest itut ion is already included in the judgment
rendered in the action; or (2) Failing therein, he can file a
separat e action for reimbur sement against the person
legally obliged to give such support.
Should the recipient reimburse the amount received
by him as suppo r t t hr o ug h e it he r of the foregoing
alt ernat ive procedures, he shall also have the right to file
a separat e action for reimbursement against the person
legally obliged to give him such support.
769
S PE CI AL CIVIL ACTIONS
PRELIMINARY CONSIDE RAT IONS
1. The former Rules prescribed, as Rule 62 thereof,

the general rule t hat the provisions of the preceding Rules
shall apply in special civil actions insofar as they are not
inco ns ist ent wit h or may serve to sup p le me n t the
provisions of the following Rules on special civil actions.
This operat ional application is now incorporated in Sec. 3,
Rule 1, and the present Rule 62 now regulat es the special
civil action of int erpleader.
2. The special civil actions of interpleader, expro•

priation, foreclosure of real estate mortgage, partition, and
forcible entry or unlawful det ainer are commenced by
complaints.
On the other hand, special civil actions for declaratory
relief and similar remedies, review of adjudications of the
co nst it ut io na l co mmiss io ns, cert ior ar i, pro hibit io n,
mandamus, quo warranto, and contempt are init iated by
petitions.
3. The venue of special civil actions is governed by
the general rules on venue, except as otherwise indicated
in the part icular rule for said special civil action. Thus,
actions for cert iorari, prohibit ion and mandamus should
be commenced in the proper Regional Trial Court, but the
same may, in proper cases, be commenced in the Supreme
Court or the Court of Appeals (Sec. 4, Rule 65); and a
special rule of venue is provided for quo warr ant o
proceedings (see Sec. 7, Rule 66).
4. Under Sec. 44(h) of the Judiciary Act, Courts of
First Instance could issue writs of injunction, mandamus,
certiorari, prohibition, quo warranto and habeas corpus
only within their respective provinces and districts (see
Dela Cruz vs. Gabor, L-30774, Oct. 31, 1969, and cases
770
P R E L I M IN AR Y C O N S I D E R A T I O N S
t herein cited). Under B.P. Blg. 129, such writ s issued by

the Regional Trial Courts are now enforceable within t heir
respective regions (Sec. 21[1]J).
5. There are three special civil actions which can be
filed in or are wit hin the jur isdict io n of the so-called
inferior courts, or courts of the first level, viz.:
(a) I nt er pleader, provided the amount involved is
wit hin its jur isdict ion (Makati Development Corp. vs.
Tanjuatco, et al, L-26443, Mar. 25, 1969);
(b) Eject ment suit s (Sec. 88, R.A. 296; Rule 70); and
(c) Contempt (Secs. 1 and 4, Rule 71).
6. By virt ue of Sec. 3 of Rule 1, the provisions of
Rule 16 on motion to dismiss are applicable in special civil
act ions (see National Power Corporation vs. Valera, L-
15295, Nov. 30, 1961).
7. Under Sec. 9, B.P. Blg. 129, the then Int ermediat e
Appellate Court had original jurisdict ion to issue writs of
cert io rar i, prohibit io n, ma nd a mu s and quo warr ant o
whet her or not in aid of its appellat e jurisdict ion. Such
original jurisdiction is concurrent with t hat of the Supreme
Court (Sec. 17[2], R.A. 296) and the Regional Trial Courts
(Sec. 2111], B.P. Blg. 129). The confluent or ig ina l
jurisdict ion of the Int ermediat e Appellate Court (now, the
Court of Appeals) and the Supreme Court in these cases
is, however, subject to the restriction in the Interim Rules
which provides:
"17. Petition for writs of certiorari, etc. — No
petition for certiorari, mandamus, prohibition, habeas
corpus or quo w a r r a nt o may be filed in t he
I nt er med iat e Appellat e Court if a not her similar
pet it ion has been filed or is still pending in t he
Supreme Court. Nor may such petition be filed in
the Supreme Court if a similar petit ion has been filed
or is still pending in the Intermediate Appellate Court,
771
PR EL IM IN ARY C O N S I D E R AT I O N S
unless i t be to review t he act ion t ake n by the

Intermediate Appellate Court on the petition filed with
it. A violation of this rule shall const itute contempt
of court and shall be a cause for the summar y
dismissal of both petit ions, without prejudice to the
taking of appropriate action against the counsel or
part y concerned."
This provision was applied in Vda. de Ganzon, et al.
vs. Yrad, et al. (G.R. No. 52305, Dec. 26, 1984, jointly
deciding two other cases). This interim Rule is intended
to proscribe the malpract ice of "forum shopping" which
trifles with the courts, abuses their processes, and tends
to degrade the administ rat ion of justice (E. Razon, Inc.,
et al. vs. Phil. Ports Authority, et al, G.R. No. 75197,
July 31, 1986; Buan, et al. vs. Lopez, Jr., G.R. No. 75349,
Oct. 13, 1986), and has been adopted in these Rules.
8. In the absence of special reasons, it has long been
the rule t hat the Supreme Court will decline original
jurisdiction in certiorari, prohibition and mandamus cases,
especially when it is necessary to take evidence and make
findings on controverted facts, since it is not a trier of facts
and t hat is a function which can better be done by the
trial courts (Fisher vs. Yangco Steamship Co., 31 Phil. 1).
Thus, in cases where the Supreme Court and the Regional
Trial Court have concurrent jurisdiction, as in petit ions
for the above writs, the same will not be ent ertained by
the Supreme Court unless a justified showing is made as
to why the petition is filed therein instead of the Regional
Trial Court (see Piit vs. De Lara, et al., 58 Phil. 765).
The same rule applies to an action for quo warranto
wherein the Supreme Court has concurrent jurisdiction
with the Regional Trial Court. Absent sufficient reasons,
the action will be left for determinat ion by the Regional
Trial Court which is better equipped to take testimony and
resolve factual questions involved therein (see Veraguth
vs. Isabela Sugar Co., 57 Phil. 266).
772
RULE 62
I N T E R P L E AD E R
S ect io n 1. Interpleader when proper. — W he ne ve r

co nfl ict ing c la i m s upo n the sam e su bje ct ma t t e r ar e
o r ma y b e mad e a g a i n s t a p e r so n wh o cla i m s n o
i n t e r e s t w h a t e v e r i n t he s u b j e c t m a t t e r , o r a n
i nt e r e s t whic h i n who l e o r i n par t i s no t d is p u t e d
b y the c l a i m a n t s , h e ma y br in g a n act io n a g a ins t
t he c o n f l i c t i n g c l a i m a n t s t o c o m p e l t h e m t o
i n t e r p l e a d an d lit igat e t he i r se ver a l c la i m s a mo n g
t he m s e l ve s , (la , R63)
Sec. 2 . Order. — Upo n t he filing of t he com • pla int

, the Co ur t sha l l issue a n o r de r r e q u i r i n g the
c o n f l i c t i n g c l a i m a n t s t o i n t e r p l e a d w it h on e
a no t he r . I f t he i nt e r e st s o f ju st ic e s o r e q u ir e , t he
C o ur t ma y d i r e c t i n suc h o r d e r t hat t he s u b je c t
m a t t e r be pai d or de l ive r e d t o the co urt . (2a, R63)
Sec. 3. Summons. — S u m m o n s shal l be ser ve d

u p o n t he c o n f l i c t i n g c l a i m a n t s , t o g e t h e r w it h a
copy of the c o mp la i n t an d o r der . (3 , R63)
Sec. 4. Motion to dismiss. — Wit hin the t im e for

filing an a ns w e r , eac h c la i ma n t ma y file a mo t io n
t o d i s m i s s o n t he g r o u n d o f i m p r o p r i e t y o f t he
i n t e r p l e a d e r a c t io n o r o n o t he r a p p r o p r i a t e
g r o u nd s specified in Rule 16. The per io d to file the
a nsw e r sha l l be tolled an d i f the mo t io n i s denied ,
t he m o v a n t ma y file hi s a n s w e r w i t h i n t he r e m a i n i n
g per iod , bu t whic h sha ll not b e less t ha n five (5) day s
in an y eve nt , r ecko ne d from not ice of denia l , (n)
773
RULE 62 REM E DI A L LAW CO M P EN DIU M SECS. 5-7
Sec. 5. Answer and other pleadings. — Eac h

claimant shall file his answer setting forth his claim
within fifteen (15) days from service of the summons
upon him, servi n g a copy thereof upon each of the
other con fli cting clai mant s who may file their reply
thereto as p rovided by these Rules. If any claimant
fails to plead within the time herein fixed, the court
may , o n m o t i o n , d e c l a r e hi m i n d e f a u l t and
thereafter rend er j u d gment barring him from any
claim in resp ect to the subject matter.
The p art i e s in an i n t e rp l e a d e r act io n may
file cou n t e rc l a i ms, cross- clai ms, third-party com•
plaint s and resp on si ve p leadi ngs thereto, as pro•
vided by th ese Rules. (4a, R63)
Sec. 6. Determination. — After the p lead ings of

the conflicting clai mant s have been filed, and pre•
trial has been con d u ct ed in accord an ce with the
Rules, the court shall p roceed to determi n e their
r e s p e c t i v e ri gh t s and ad j u d i c at e th ei r severa l
claims. (5a, R63)
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
exp en s es, shall con stit ut e a lien or charge upon the
subject matter of the action, unless the court shall
order ot h erwi se. (6a, R63)
NOTES
1. For the dist inct ions between int ervent ion and
interpleader, see notes under Sec. 1, Rule 19.
2. The action of interpleader is a remedy whereby a
person who has propert y in his possession or has an
obligation to render wholly or partially, without claiming
774
RULE 62 INTERPLEADER SECS. 5-7
any right in both, comes to court and asks t hat the

defendant s who have made conflicting claims upon the
same propert y or who consider t hemselves ent it led to
demand compliance with the obligat ion be required to
lit igate among t hemselves in order to determine who is
ent itled to the property or payment or the obligation. The
remedy is afforded not to protect a person against a
double liabilit y but to protect him against a double vexation
in respect of one liabilit y (Beltran, et al. vs. People's
Homesite & Housing Corp., L-25138, Aug. 28, 1969).
3. Inferior courts have jurisdiction in int erpleader
cases wher e the a mo u n t invo lved i s wit hin t he i r
jur isd ict io n, alt hough they were not bound to follow
strictly t he provisions of t hen Rule 63, but may apply
the ge ner a l rules in o r d inar y civil act io ns (Makati
Development Corp. vs. Tanjuatco, et al., supra). The
procedural aspect announced in t hat case is no longer
accurate and has been modified by the rule on uniform
procedure to be followed by the Regional Trial Courts and
the lower courts.
The inferior court would not have jurisdiction over
an int er pleader case for the recovery of t it le to real
property or actions for specific performance, annulment
or rescission of contracts and other actions within the
exclusive original jurisdiction of the Regional Trial Courts.
4. Sec. 4 is a new provision and provides for the filing
of a motion to dismiss. Of course, pursuant to Sec. 3(a) of
Rule 1, the provisions of Rule 16 on a motion to dismiss
may also be availed of in special civil actions whenever
the preliminary objections therein may feasibly be invoked.
However, part icular ly for purposes of this special civil
action, the impropriet y of resorting to an int erpleader
action may be raised as a special ground in addit ion to
those provided in Rule 16. A special rule on the effect of
a motion to dismiss upon the regle ment ar y period to
775
RULE 82 REM E DI A L LAW C O M P E N D I U M SEC 8 5-7
answer is furt her provided, to make it uniform with

Rules 12 and 16.
Along the same vein, a second paragraph has been
added to Sec. 5 to expressly aut horize the addit ional
pleadings and claims enumerat ed therein, in the interest
of a complete adjudicat ion of the controversy and its
incidents.
5. Under Sec. 5, the conflicting claimant s, who are
co-defendants in the action, must serve copies of their
answers not only on the plaint iff but also upon their co-
defendants. This special rule is necessitated by the fact
t hat the cont roversy act ually exist s among the co-
defendants and the plaintiff may have no interest in the
subject-matter. In ordinary civil actions, co-defendants need
not serve a copy of their respective answers on each other
except when the answer contains a cross-claim.
6. The costs, expenses and attorney's fees incurred
by the plaint iff in the action is recoverable from the
defendant who loses in the action and is found by the
court to have caused the unnecessary lit igation (Menzi &
Co. vs. Bastida, 63 Phil. 16).
7. Int erpleader cannot be availed of to resolve the
issue of breach of undert akings made by defendant s,
which issues should be resolved in an ordinary civil action
for specific performance or other relief (Beltran vs. PHHC, L-
25138, Aug. 28, 1969).
8. Where there are no conflicting claims among the
defendants, their respect ive claims being separat e and
distinct from each other, the complaint for interpleader
may be dismissed for lack of cause of action (Vda. de
Camilo vs. Aranio, L-15653, Sept. 29, 1961).
9. An action for interpleader must be filed within a
reasonable time after the dispute has arisen, otherwise it
may be barred by laches. Where a party was aware of
776
RUL E 62 I N T E R P L E AD E R S E C S . 5-7
the disput e and in fact had been sued by one of the

c la i ma nt s and the former did not implead the ot her
c la i m a nt , he can no longer invoke the r e med y of
int erpleader (Wack- Wack Golf & Country Club, Inc. vs.
Lee Won, et al, L-23851, Mar. 26, 1976).
777
RULE 63
DECLARATORY RELIEF
AND SIMILAR REMEDIES
Section 1. Who may file petition. — Any person

i n t erest ed u n d er a d eed, will, con t ract or other
written inst rument, or whose right s are affected by
a statute, execu ti ve order or regu lation, ordinance,
or any other govern men tal regu lation may, before
breach or violation thereof, bring an action in the
approp riate Regional Trial Court to det ermi n e any
question of con st ru ct ion or validity arising, and for
a declarati on of his rights or duties, thereunder.
An act ion for the re fo rmat i on of an instru •
ment, to quiet title to real property or remove clouds
therefrom, or to consolid ate ownership under Article
1607 of the Civil Code, may be brought under this
Rule, ( la , R64) (As amended by Resolution of the
Supreme Court, dated Feb. 17, 1998)
NOTES
1. The first paragraph refers to declaratory relief.

The second paragraph refers to the action to quiet title,
authorized by Arts. 476 to 481 of the Civil Code; the action
for the reformat ion of an inst rument authorized under
Arts. 1359 to 1369 of the Civil Code; and the action to
consolidate ownership required by Art. 1607 of the Civil
Code in a sale with right to repurchase. These three
remedies are considered similar to declarat ory relief
because they also result in the adjudication of the legal
rights of the lit igants, often without the need of execution
to carry the judgment into effect.
2. In declaratory relief, the subject-matter is a deed,

will, cont ract or ot her wr it t en inst r u m e nt , st at ut e ,
778
RUL E 63 D E C L AR AT O R Y RE LI E F SEC . 1
AN D SIM ILAR R E M E D I E S
execut ive order or regulat ion, or ordinance. The issue

is the validit y or construct ion of these documents. The
relief sought is the declarat ion of the petitioner's right s
and duties t hereunder.
The concept of a cause of action in ordinar y civil
actions does not apply to declaratory relief as this special
civil action presupposes t hat there has been no breach or
violat ion of the inst r ume nt s involved. Consequent ly,
unlike other judgment s, the judgment in an action for
declaratory relief does not essent ially entail any execu-
tional process as the only relief to be properly granted
t herein is a declarat ion of the rights and duties of the
part ies under the inst rument , although some exceptions
have been recognized under certain sit uat ions.
3. The requisit es of an action for declaratory relief
are:
(a) The subject -matt er of the controversy must be a
deed, will, contract, or other written inst rument , st at ut e,
execut ive order or regulat ion, or ordinance;
(b) The t erms of said documents and the validit y
thereof are doubtful and require judicial const ruct ion
(Santos vs. Aquino, et al., 94 Phil. 65);
(c) There must have been no breach of the docu•
ment s in quest ion (Teodoro vs. Mirasol, 99 Phil. 150;
Reparations Commission vs. Northern Lines, Inc., L-
24835, July 31, 1970), otherwise an ordinary civil action is
the remedy;
(d) There must be an actual just iciable controversy
or the "ripening seeds" of one between persons whose
interests are adverse (Edades vs. Edades, 99 Phil. 675);
(e) The issue must be ripe for judicial det erminat ion
(Tolentino vs. Board of Accountancy, et al., 90 Phil. 83),
as, for example, where all administrat ive remedies have
been exhaust ed; and
779
RUL E 63 REM E DI A L LAW C O M P E N D I U M SECS. 2-3
(f) Adequate relief is not available through other

means or other forms of action or proceedings (Ollada vs.
Central Bank, L-11357, May 31, 1962).
4. By reason of these requisites, declaratory relief
is not available for a declaration of citizenship (Villa-
Abrille Lim, et al. vs. Republic, 99 Phil. 361), or the
validit y or construct ion to be placed on a registrat ion
certificate (Obiles vs. Republic, 92 Phil. 864), as these are
unilat er al in nat ur e and wit hout conflicting adverse
interests between two parties, hence they do not fall within
the "written inst rument " contemplated in Sec. 1. Also, a
court decision cannot be the subject of declarat ory
relief, as there are other existing remedies in connection
t herewit h, pr imar ily, by appeal to the higher courts
(Tanda vs. Aldaya, 98 Phil. 244), or, in case of ambiguity,
by a motion for a so-called "clarificatory" judgment.
5. To be ripe for jud ic ia l d et er m i nat io n , or to
const itute the "ripening seeds" of a controversy, it must
appear t hat , under the facts of the case, t here is a
t hr eat ened lit igat ion in the immediat e future, which
lit igation is imminent and inevitable unless prevented by
the declarat or y relief sought (Tolentino vs. Board of
Accountancy, et al., supra).
Sec. 2. Parties. — All p er so n s wh o hav e or claim

an y i n t e r e s t w h i c h w o u l d b e a f f e c t e d b y t he
d e c la r a t io n sha ll b e mad e par t ie s ; an d n o dec lar a •
t ion s ha ll, exc ep t as o t he r w is e pr o vid e d i n t hes e
Rules, pr e ju d ic e the r ig ht s of per so n s no t par t ie s t o
the act io n. (2a, R64)
Sec. 3. Notice on Solicitor General. — In an y act io n

whic h invo lves the va l id it y of a st at ut e , execut ive
o r d e r o r r e g u l a t i o n , o r an y o t he r g o v e r n m e n t a l
r eg u lat io n , the So lic it or Ge ner a l sha ll be not ified
by t he par t y a s s a i l i n g the sam e an d sha ll be ent it led
780
RUL E 63 D E C L AR AT O R Y R EL IE F SE C S . 4- 6
to be heard upon such question. (3a, R64)
Sec. 4. Local government ordinances. — In an y

action i n volvi n g the validity of a local gove rn men t
o r d i n a n c e , the c o r r e s p o n d i n g p r o s e c u t o r o r
at t o rn e y o f the local g o v e rn m e n t unit i n volve d
shall be si mi larly notified and entitled to be heard.
If such ord i n an ce is alleged to be u n c on st i t u t i on al,
the S oli cit or G en eral shall be notified and ent it led
to be heard. (4a, R64)
Sec. 5. Court action discretionary. — Exc ep t in

a c t i o n s fa l l i n g UNDE R the s econ d p a ra g ra p h o f
sect i on 1 of this Rule, the court, motu proprio or
upon moti on , may refuse to exerci se the p ower to
d eclare rights and to con st ru e in st rumen t s in any
cas e wh e r e a d e c i s i o n wou l d not t e r m i n a t e the
u n cert ai n t y or con t roversy whi ch gave rise to the
action, or in any case where a d eci sion would not
t e rm i n a t e the u n ce rt a i n t y or con t ro versy wh i c h
gave rise to the action, or in any case wh ere the
d ecla rat i on or con st ru ct i on is not neces sa ry and
proper under the ci rcu m st an ces. (6a, R64)
Sec. 6. Conversion into ordinary action. — If

before the final t ermi n ati on of the case, a breach
or vi olati on of an i n st ru ment or a statute, execut ive
o rd e r o r r e g u l a t i o n , o r d i n a n c e , o r an y ot h e r
g o v e rn m e n t a l regu l at i o n sh ou ld take place, the
a c t i o n , ma y t h e r e u p o n b e c o n v e r t e d i nt o a n
ordinary action, and the parties shall be allowed to
file su ch p leadi ngs as may be necessary or proper.
(6a, R64)
NOTES
1. Under Sec. 5, declaratory relief may be refused

by the court where the same would not terminate the
781
RUL E 63 REM E DI A L LAW C O M P E N D I U M SECS . 4-6
uncertaint y or controversy. For instance, there may be

proper part ies who cannot be joined and whose interests
will give rise to the uncertaint y or where the judgment in
the action for declaratory relief may change upon proof of
facts not then available to the court (see 3 Moran 159,
1980 Ed.). This discretion is justified as, precisely, the
pur po s e of de c la r at o r y relief is to t er m i n a t e the
controversy. Such discretion, however, does not extend
to actions for the reformation of an inst rument , to quiet
title to real property or to remove clouds therefrom, or to
consolidate ownership in a pacto de retro sale.
2. In one case, what was sought was not a declara•

tion that the respondent was a corporation, on which there
was no dispute, but t hat it was separate and distinct from
anot her corporation for whose liabilit ies it should not
respond. The rule is t hat where the relief sought would
be determinat ive of issues rat her than a construction of
definite stated rights, st atus and other relations commonly
expressed in written inst rument s, the case is not one for
declaratory judgment. Considering t hat in a proceeding
for declaratory judgment the relief which may be sought
is limit ed only to a declar at io n of r ight s and not a
det er minat io n or trial of issues, a declarat ory relief
proceeding is unavailable where a judgment may be made
only after a judicial invest igat ion of the issues (Kawasaki
Port Service Corp., et al. vs. Amores, etc., et al., G.R.
No. 58340, July 16, 1991).
3. Pet it io ns for declarat ory relief regarding the

int erpret at ion of collective bargaining agreement s were
within the jurisdiction of the former Court of Industrial
Relations and not of the Court of First Instance (PVTA
Employees Association vs. Judge Masakayan, et al., L-
29538, Nov. 29, 1972, jointly deciding therein L-27953).
4. Since no material relief is sought in an action for
declarat or y relief, a t hird-part y complaint cannot be
entertained therein (Comm. of Customs, et al. vs. Cloribel,
782
RUL E 63 D E C L AR AT O R Y RE LI E F SE C S . 4- 6
et al, L-21036, June 30, 1977). However, a compulsory

counterclaim may be set up in a declarat ory relief suit
(Visayan Packing Corp. vs. Reparations Commission, et
al., L-29673, Nov. 12, 1987; Phil. Deposit Insurance Corp.
vs. CA, et al., G.R. No. 126911, April 30, 2003).
5. The non-joinder of persons who claim any interest

which may be affected by a declaratory judgment is not a
jur isdict ional defect, as Sec. 2 of this Rule provides t hat
said declarat ion shall not prejudice their int erest s, unless
otherwise provided in the Rules of Court (Baguio Citizens
Action, Inc. vs. The City Council, etc., of Baguio City, L-
27247, April 20, 1983).
6. In an action for declaratory relief involving the

det er minat io n of the validit y of a municipal ordinance
imposing "inspection fees" on cassava starch shipped out
of the municipalit y by pet it ioner corporation, the petition
also prayed for the refund of the amount paid under protest
by reason of said ordinance. Respondent municipalit y
quest ioned the propriet y of such relief in view of t he
nat ure of an action for declaratory relief and the fact t hat
it had not been converted into an ordinary action by the
filing of the corr espo nding pleadings t herefor. The
Supreme Court sustained the grant of such relief since
Sec. 6 of this Rule contemplat es the situation wherein,
before the terminat ion of the action for declaratory relief,
a breach or violation of the ordinance takes place, which
fact was absent in this case. Furt her, the respondent
did not object to the allegations on this issue in its answer
to the pet it ion. Respondent's position would give rise to
a mult iplicit y of suits (Matalin Coconut Co., Inc. vs.
Mun. Council of Malabang, Lanao de Sur, et al, L-28183,
Aug. 13, 1986).
7. Also, alt hough the actions are for declaratory

judg me nt s but the allegat ions in the complaint s are
sufficient to make out a case for reconveyance of real
property (Santos vs. IAC, et al, G.R. No. 74243, Nov. 14,
783
1986) or for recovery of readjusted rentals (Congressional

Commercial Corp., et al. vs. CA, et al, G.R. No. 59113,
Nov. 27, 1986), with corresponding claims for damages,
and the defendants therein did not object or raise an issue
in the trial court to challenge the form of the action, the
decision can grant such affirmat ive relief as may be
warrant ed by the evidence.
8. An action for declaratory relief must be brought
in the proper Court of First Instance (now, the Regional
Trial Court). It is not among the actions wit hin the
original jurisdict ion of the Supreme Court even if only
quest ions of law are involved (see Sec. 17, R.A. 296;
Remotigue vs. Osmeha, Jr., L-28202, Nov. 10, 1967; Rural
Bank of Olongapo, Inc. vs. Comm. of Land Registration,
et al, L-47988, Feb. 20, 1981). However, if the petition
has far-reaching implicat ions and it raises quest ions
t hat should be r eso lved, i t may be t reat e d as one
for prohibit io n (De la Liana, et al. vs. Alba, et al,
G.R. No. 57883, Mar. 12, 1982) or for mandamus (Alliance
of Gov't Workers vs. Minister of Labor and Employment,
G.R. No. 60403, Aug. 3, 1983; In re Saturnino V.
Bermudez, G.R. No. 76180, Oct. 24, 1986).
784
RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS

OR RESOLUTIONS OF THE COMMISSION ON
ELECTIONS AND THE COMMISSION ON AUDIT
Section 1. Scope. — This Rule shall govern the

review of j u d g m en t s and final ord ers or resolu t ion s
of the Commi ssi on on Election s and the Commission
on Audit, (n)
Sec. 2. Mode of review. — A j u d gmen t or final

order or resoluti on of the Commi ssion on Electi on s
and the Commi ssi on on Audit may be brought by
the a g g r i e v e d p art y t o the S u p re m e C o u rt o n
ce rt i o ra r i UNDER Ru le 65, excep t as h e re i n a ft e r
provided, (n) (As amended by Resolution of the Supreme
Court, dated Feb. 17, 1998)
Sec. 3. Time to file petition. — The petition shall

be filed wi t hi n thirty (30) days from notice of the
j u d gmen t or final order or resolution sought to be
revi e wed . The filing of a motion for new trial or
re con s i d e ra t i o n of said j ud gment or final order or
resolu t ion, i f allowed under the p rocedural rules of
the C o m m i s s i o n c o n c e rn e d , shall i n t e rru p t the
period h erei n fixed. If the motion is d eni ed, the
aggri eved party may file the p et it ion wit hi n the
re mai n i n g period, but which shall not be less than
five (5) days in any event, reckoned from notice of
denial, (n)
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
d eposit the amount of P500.00 for costs, (n)
785
NOTES
1. This new Rule is based on the provisio ns of

Art. IX-A of the 1987 Constitution regarding the three
constitutional commissions provided for therein, one of the
common provisions therefor being as follows:
"SEC. 7. Each commission shall decide by a
majority vote of all its members any case or matter
brought before it within sixty days from the date of
its submission for decision or resolution. A case or
matt er is deemed submitted for decision or resolution
upon the filing of the last pleading, brief or memo•
randum required by the rules of the commission or
by the commission itself. Unless otherwise provided
by the Const itut ion or by law, any decision, order or
ruling of each commission may be brought to the
Supreme Court on certiorari by the aggrieved party
within thirt y days from receipt of a copy thereof."
2. The remedy of cert iorari in this Rule against
adjudications of the const itut ional commissions is now
applicable only to the Commission on Elections and the
Commission on Audit. Pursuant to authorit y granted in
the aforequoted provision, and as explained in the early
part of this volume, Congress enacted R.A. 7902 amending
Sec. 9 of B.P. Blg. 129, effect ive Mar ch 18, 1995,
eliminat ing such recourse to the Supreme Court and
transferr ing the revising power to the Court of Appeals
over all adjudications of the Civil Service Commission. For
t hat matter, the same amendment was made with respect
to the Central Board of Assessment Appeals.
3. As a consequence, the Supreme Court issued

Revised Administrat ive Circular No. 1-95 implement ing
t he foregoing a me nd m e n t and inc lud i ng the Civil
Service Commission among the quasi-judicial agencies
whose awards, judgment s, final orders or resolut ions
should be elevated to the Court of Appeals on a petition
786
RUL E 64 RE VIE W OF J U D G M E N T S , ETC. SEC . 5
OF CO M EL E C AN D COA
for review, effective June 1, 1995. This procedure has

been formulated into and is incorporated in this revision
as the new Rule 43 thereof. Except for this procedural
change in the review of its adjudication, the Civil Service
Commission cont inues to be governed by Art. IX of the
Co nst it ut io n as a co nst it ut io na l commission creat ed
therein.
4. With respect to the Commission on Elections and

the Commission on Audit, the mode of review shall be by
a petit ion for cert iorari in accordance with Rule 65, but
exclusively with the Supreme Court and wit hin a limited
period of 30 days. It will be observed that , in ot her
cases and subject to the rule on the hierarchy of courts,
the Supreme Court has concurrent original jurisdict ion
in cert iorari actions with the Court of Appeals and, in
pr o pe r cases, also wit h the Regio nal Tr ial Co ur t s .
Furt her mo re, under Rule 65, the special civil action of
cert iorari there has now to be filed within 60 days.
5. It can be deduced from Sec. 2, Rule 37 t hat a

mot ion for new t r ial or r eco nsider at io n in the court
a quo, unless it be pro forma, tolls the period for appeal;
if denied, the part y shall have the balance of the period
to perfect his appeal from the judgme nt . A specific
provision t hereon is found in Sec. 3 of this Rule, but
with the proviso t hat the party may in any event have
at least 5 days to file his petition.
Sec. 5. Form and contents of petition. — The

p et it ion shall be verified and filed in ei ght een (18)
l e g i b l e c o p i e s . The p e t i t i o n sh al l n am e the
a g g ri e v e d party as p et i t i on e r and shall join as
re s p o n d e n t s the Com mi ssi on con ce r n e d and the
p erso n o r p e rs on s i n t e re s t e d in s u s t a i n i n g the
j u d g m en t , final order or reso lu t i on a quo. The
petition shall state the facts with certainty, present
clearly the issues involved, set forth the grou nd s
787
RUL E 64 REM E DI A L LAW C O M P E N D I U M SEC. 5
and brief a r g u me nt s relied upo n for review, and pray

for ju d g me n t a nnu l l i n g or modifying the quest io ned
j u d g me nt , final o r de r or r e so lu t io n . F ind ing s of
fact of t he Co mm is s io n s u p p o r t e d by s u bs t a nt ia l
evide nc e sha ll be final an d no n- r e vie w a ble .
The pet it io n sha ll be a c c o mp a n i e d by a clear ly
legible d u p l i c a t e o r ig ina l or cert ified t r u e copy of
t he j u d g m e n t , fina l o r d e r o r r e s o l u t i o n subje c t
t her eo f , t o g e t h e r wit h c er t i f i e d t r u e co pie s o f
such mat er ia l po r t io n s o f the r eco r d as ar e r efer r ed
t o t h e r e i n an d o t h e r d o c u m e n t s r e l e v a n t an d
p e r t i ne n t t he r et o . The r e q u is it e nu m be r of copies
o f t he p e t it io n s ha l l c o nt a i n p la i n c o pie s o f all
d o c u m e n t s a t t a c h e d t o the o r ig i na l copy o f said
pet it io n .
The pet it io n s ha ll st at e the specific m at er ia l
dat e s sho w in g t hat i t wa s filed w it hin the per io d fixed
her e in , an d sha ll co nt a i n a swo r n cer t ificat io n
a g a in s t foru m s ho p p i n g a s pr o vid e d i n the t hir d
p a r a g r a p h of sect io n 3 , Rule 46.
The pet it io n sha ll fu r t he r be ac co mp a n ie d by
proof of ser vice of a copy t her eo f on the Co mmiss io n
c o nc e r ne d an d o n t he a d v e r s e p a r t y , an d o f the
t ime ly p a y m e n t of do cke t an d ot he r lawful fees.
The failur e of p et it io ne r to comply wit h any of
t he fo r e g o i n g r e q u i r e m e n t s sha l l b e su f f ic ie n t
gr o un d for the d is m is s a l of the pet it io n, (n)
NOTES
1. Just like the other petit ions to the Supreme Court

hereinbefore discussed, the requirement s for the petition
provided by this section were taken from Supreme Court
revised Circulars Nos. 1-88, 19-91 and 28-91, with the
change which has earlier been noted that the deposit
for costs shall be made upon the filing of the petition in
788
RUL E 6 4 RE VIE W OF J U D G M E N T S , ETC. SEC . 6-7
OF CO M EL E C AN D COA
addition to the payment of the docket and other lawful

fees.
2. This section requires t hat the petit ion shall be

accompanied by a duplicate original or certified true copies
of the judgment, final order or resolution subject thereof,
and if mat erial portions of the record are annexed, they
must also be cert ified. Ot her pe r t ine n t or r elevant
document ary annexes need not be certified true copies,
and plain copies will suffice (see Van Melle Philippines
vs. Endaya, G.R. No. 143132, Sept. 23, 2003). For t hat
matt er, this requirement for certified copies are intended
for the annexes to the original copy of the petition. In all
the other requisit e number of copies of the petition, only
plain copies of all such documents is required.
Sec. 6. Order to comment. — If the S u p r em e C o u r t

finds t he p et it io n s sufficient i n form an d s u bs t a nc e ,
the Co ur t shall o r de r t he r e s p o n d e nt s t o file t he i r
c o m m e nt s on the pet it io n w it hin te n (10) day s from
not ice t hereo f; o t he r w is e , the Co urt ma y d is mis s t he
pet it io n o ut r ig ht . The Co urt ma y also dis m is s the
pet it io n i f i t wa s filed ma nife st ly for delay, or the
q u e s t i o n r a is e d i s to o u n s u b s t a n t i a l t o w a r r a n t
fu r t he r p r o c e e d ing s , (n)
Sec. 7. Comments of respondents. — The co m me nt s

of the r e s p o n d e n t s shall be filed in e ig ht e e n (18)
leg ible co pie s. The or ig ina l sha ll be a c c o mp a n i e d
by cert ified t r u e copies of suc h mat er ia l po rt io n s of
the r eco r d a s ar e r e fer r e d t o t he r e i n t o get he r wit h
ot he r s u p p o r t i n g paper s . The r equ is it e nu m be r o f
co pies of the c o m me nt s shall co nt a i n pla in copies
of all d o c u m e nt s a t t a c he d to the o r ig in a l an d a copy
t he r eo f sha ll be ser ved on the pet it io n er .
No ot he r ple ad i n g may be filed by an y p ar t y
unle s s r e q u ir e d or allo wed by the Court , (n)
789
NOTES
1. Sec. 6 of this Rule is similar to the provisions of

the first paragraph of Sec. 6, and the second paragraph
of Sec. 8, both of Rule 65. The reason therefor is obviously
to prevent resort to the petit ions under both Rules for
dilatory purposes.
2. Sec. 7 cont ains specific r equir ement s on what
should accompany and be contained in the comment of
the respondent s, with the further caveat t hat no other
pleadings shall be filed by the parties without prior leave
of the Supreme Court.
Sec. 8. Effect of filing. — The filing of a pet it io n for

c e r t io r a r i sha l l no t st ay the e xec ut io n of t he
j u d g m e n t , fina l o r d e r o r r e s o l u t io n so ugh t t o b e
r e v ie w e d , unle s s the S u p r e m e C o u r t shal l d ir ec t
o t he r w is e upo n suc h t er m s a s i t ma y d ee m just , (n)
Sec. 9. Submission for decision. — U n l e s s t he

Co urt set s the case for ora l a r gu me nt , o r r equ ir e s
the p a r t i e s t o s u bm i t m e m o r a n d a , the case sha ll be
de e me d s u b m it t e d for decis io n upo n the filing of t he
c o m m e n t s o n t he p e t i t i o n , an d suc h o t he r p le a d i n g s
o r p a p er s a s ma y b e r e q u ir e d o r allo wed, or the
e xp ir a t io n of the per io d to do so. (n)
NOTE
1. Sec. 8 emphasizes the basic rule t hat the mere

filing of the petit ion shall not be a bar to execution where
proper under the circumstances, unless otherwise directed
by the Supreme Court such as t hro ugh a t emporar y
rest raining order. Sec. 9, just like similar provisions in
the other Rules, is based on the provisions of Sec. 15(2),
Art. VIII of the Constitution.
790
RULE 65
C E R T I O R AR I , P R O H I B I T I O N
AND MANDAMUS
S ect io n 1. Petition for certiorari. — Whe n an y

t r i b u n a l , bo a r d o r o fficer e x e r c i s i n g j u d i c i a l o r
q u a s i - j u d i c i a l fu nc t io n s ha s act e d w i t ho u t o r i n
exc es s o f it s o r hi s ju r i s d ic t io n , o r wit h gr av e abus e
of d i s c r e t io n a m o u nt i n g to lack or excess of its or
his ju r is d i c t io n , an d t her e i s n o appe a l , o r an y p la in,
speed y, an d a d e q u a t e r e med y i n t he o r di n a r y co ur s e
of law, a per so n aggr ie ved t her e b y ma y file a ver ified
pet it io n i n the p r o p e r co urt , alleg in g the fact s wit h
c e r t a i nt y an d p r a y i n g t hat ju d g m e n t b e r e n d e r e d
a n n u l l i n g o r mo d i f yi n g t he p r o c e e d i n g s o f suc h
t r i b u n a l , b o a r d o r o ff ic er , an d g r a n t i n g s u c h
i n c i d e nt a l r elie fs a s law an d just ic e ma y r e q u ir e .
T he p e t i t i o n s h a l l b e a c c o m p a n i e d b y a
cer t ifie d t r u e copy o f the ju d g me nt , o rde r o r r eso •
lut io n subjec t t hereo f, copies of all p l e a d ing s an d
d o c u m e n t s r e le va n t an d p e r t i n e n t t he r e t o , an d a
swo r n c e r t if ic a t io n o f no n- fo r u m s h o p p i n g a s
pr o v id e d in the t hir d p a r a g r a p h of sec t io n 3 , Rule
46. ( la )
NOTES
1. This amended section now expressly includes a

r espo ndent exercising quasi-judicial funct ions. The
second paragraph has also been amended to addit ionally
r equir e a cert ificat ion of non-forum shopping which
assumes added importance by reason of the fact that,
under the present procedural laws, the Supreme Court,
Court of Appea ls and Regio nal T r ia l Court s have
concurrent jurisdiction in actions for certiorari, prohibition
and m a nd a m u s , hence forum shopping or mult ip le
791
RUL E 65 REM EDIAL LAW COMPENDIU M SEC. l
petitions on the same case may more easily be resorted to

by unscrupulous lit igants. This requirement is reiterated
in the succeeding two sections on prohibition and man•
damus. See also the notes under Sec. 4 of this Rule.
2. The writ of cert iorar i is proper to correct errors of
jurisdict ion committed by the lower court, or grave abuse
of discretion which is tant amount to lack of jurisdiction.
Where the error is not one of jurisdict ion but an error
of law or fact which is a mistake of judgment, appeal is the
remedy (Matute vs. Macadaeg, et al, 99 Phil. 340; De
Galasison vs. Maddela, et al, L-24584, Oct. 30, 1975).
However, the Supreme Court has doctrinally observed

that it is sometimes necessary to delve into factual issues
in order to resolve allegat ions of grave abuse of discretion
as a ground for the special civil actions of cert iorar i and
prohibition. Also, the conflicting views on the factual issues
or the insufficiency of evidence support ing the respective
allegations of the parties necessitated the review thereof
by the respondent Court of Appeals at the very least to
determine the existence of grave abuse of discretion. This
sit uat ion may validly be treated as an exception to the
restrictive rule that in said special civil actions only strictly
errors of jurisdict ion can be considered by the respondent
court (Balba, vs. Peak Development, Inc., et al, G.R.
No. 148288, Aug. 12, 2005).
3. The use of the term "person aggrieved" in Sec. 1

is not construed to mean t hat any person who feels injured
by the lower court's order or decision can question said
court's disposition via certiorar i as provided in this Rule.
Where t he order or decision in quest ion under went
adver sar ial proceedings in the respondent court, the
"person aggrieved" referred to is one who was a part y with
legal st anding founded upon mat er ial int erest in the
proceedings before said court. This can further be gleaned
from the fact that a special civil action for cert iorar i may
generally be dismissed motu proprio if the pet it ioner
792
RUL E 65 CERTIO RARI, P R O H I B I T I O N SE C 1
AN D M AN D AM U S
t herein had failed to file a motion for reconsiderat ion of

the challenged order or decision in the respondent court,
which presupposes t hat he is a part y in interest (Tang,
et al. vs. CA, et al., G.R. No. 117204, Feb. 11, 2000).
4. An original action for certiorari is an independent
action and does not int errupt the course of the principal
act ion nor the r u nnin g of the r eg le me nt ar y per iods
involved in the proceedings (Palomares vs. Jimenez,
90 Phil. 773). Consequent ly, to arrest the course of the
principal act ion during the pendency of the cert iorari
proceedings, there must be a restraining order or a writ of
preliminar y injunction from the appellate court directed
to the lower court (Santiago vs. Vasquez, infra). The
same is t rue with respect to prohibit ion and mandamus.
The petit ions for these writs under this Rule are original
and independent actions and not cont inuat ions or part s
of the trial result ing in the judgment complained of.
The mere pendency of a special civil act ion for
cert iorar i, in connection with a pending case in a lower
court, does not int errupt the course of the latt er if t here
is no writ of injunction (Peza, et al. vs. Alikpala, et al., L-
29749, April 15, 1988; Aparicio vs. Andal, etc., et al,
G.R. Nos. 86587-93, July 25, 1989) or restraining order.
5. For the dist inct ions between the original special
civil action for cert iorari under this Rule and cert iorari as
a mode of appellat e review, see Note 6 under Sec. 1, Rule
45. Formerly, these special civil actions in Rule 65 were
only required to be filed within a reasonable period as no
time frame for the filing thereof had been fixed by this
Rule (Flordelis vs. Mar, G.R. No. 54887, May 22, 1982;
Toledo vs. Pardo, et al, G.R. No. 56761, Nov. 19, 1982;
Cubar vs. Mendoza, G.R. No. 55035, Feb. 23, 1983).
However, pet it io ner could be guilt y of laches if he
failed to avail of these remedies wit hin a reasonable
period (Mun. of Carcar vs. CFJ of Cebu, L-31628,
Dec. 27, 1982). This Rule now provides for a specific
793
period for filing said petit ions, (see Sec. 4.).

6. . C e r t io r ar i , pr o hib it io n and ma nd a m u s
are dist inguished as follows:
a. With respect to the purpose of the writ, certiorari
is intended to correct an act performed by the respondent;
prohibit ion is int ended to prevent the commission or
carrying out of an act; while mandamus is intended to
compel the performance of the act desired.
b. With respect to the act sought to be controlled,
cert iorar i extends only to discretionary acts; prohibition,
to discret ionary and minist erial acts; and mandamus, to
ministerial acts.
c. With respect to the respondent, cert iorari lies
only against a respondent exercising judicial or quasi-
judicial functions, while both prohibit ion and mandamus
are available against respondents who exercise judicial
and/or non-judicial functions.
7. A respondent is said to be exercising judicial
functions where he has the power to determine what the
law is, what are the legal rights of the parties, and he
undert akes to determine t hese quest ions and adjudicate
upon the rights of the parties (see Ruperto vs. Torres, etc.,
et al., 100 Phil. 1098 fUnrep.J; Mun. Council of Lemery
vs. Prov. Board of Batangas, 56 Phil. 266). It is necessary
t hat there be a law providing for the adjudication of rights
and the t r ibuna l, board, or officer has the power to
determine the law and adjudicate such rights. Hence, a
committee for determining honors for students (Santiago,
et al. vs. Bautista, et al., L 25024, Mar. 30, 1970) or
a board of judges for an oratorical contest, etc. (Felipe vs.
Leuterio, et al., 91 Phil. 482) cannot be proper respondents
in cert iorari proceedings.
8. The respondent acts without jurisdiction if he does

not have the legal power to determine the case. There is
excess of jurisdiction where the respondent, being clothed
794
RUL E 65 CER TI O R ARI , P R O H I B I T I O N SEC . 1
AN D M AN D AM U S
wit h the power to det er mine the case, overst eps his
aut horit y as det ermined by law (Rocha vs. Crossfield,
6 Phil. 355). And there is grave abuse of discretion where
the respondent acts in a capricious, whimsical, arbit rary
or despotic manner in the exercise of his judgment as to
be said to be equivalent to lack of jurisdiction (Alafriz vs.
Nable, 62 Phil. 278; Abad Santos vs. Prov. of Tarlac,
66 Phil. 480).
a. Excess of jurisdict ion, as dist inguished from lack
of jurisdict ion, refers to any act which although falling
within the general powers of the judge is not authorized
and is consequent ly void with respect to the part icular
case because the condit ions under which he was only
aut horized to exercise his general power in t hat case did
not exist and, therefore, the judicial power was not legally
exercised (Broom vs. Douglas, 175 Ala. 268, 57 S. 860;
see Tengco vs. Jocson, 43 Phil. 716).
b. Grave abuse of discretion means such capricious
and whimsical exercise of judgment as is equivalent to
lack of jurisdict ion, or, in other words, where the power is
exercised in an arbitrary or despotic manner by reason
of passion or personal hostility, and it must be so patent
and gross as to amount to an evasion of positive duty or
to a virt ual refusal to perform the duty enjoined or to
act in contemplat ion of law. It is not sufficient t hat a
tribunal, in the exercise of its power, abused its discretion;
such abuse must be grave (Benito vs. COMELEC, et al.,
G.R. No. 134913, Jan. 19, 2001, cit ing cases;. The
remedies in Rule 65 are extraordinary, and their use is
restricted to truly extraordinar y cases (see Republic vs.
Villarama, Jr., etc., et al., G.R. No. 117733, Sept. 5, 1997).
9. A requisit e common to the writs of cert iorari,
prohibit ion and mandamus is t hat these writs may be
availed of only if there is no appeal or any plain, speedy
and adequate remedy in the ordinary course of law from
the acts of the respondent.
795
a. Where the proper remedy is appeal, the action for

certiorari will not be entertained (Nocon vs. Geronimo, etc.,
et al, 101 Phil. 735). Certiorari is not a remedy for errors
of judgment. Errors of judgment are correctible by appeal;
er r or s of jur isd ict io n are r eviewable by cer t io r ar i
(Lamangan vs. De la Cruz, et al., L-27950, July 29, 1971;
Phil. Surety & Insurance Co. vs. Jacala, 108 Phil. 177;
Bimeda vs. Perez, et al., 93 Phil. 636). The original action
for cert iorari is not a subst it ut e for appeal (Lobite vs.
Sundiam, etc., et al. L-38278, June 28, 1983), especially
when the remedy of appeal was lost through the fault of
the party.
However, even when appeal is available and is the
proper remedy, the Supreme Court has allowed a writ
of cert iorari (1) where the appeal does not constitute a
speedy and adequate remedy (Salvadades vs. Pajarillo,
et al., 78 Phil. 77), as where 33 appeals were involved
from orders issued in a single proceeding which will
inevitably result in a proliferation of more appeals (PCIB
vs. Escolin, et al., L-27860 and L-27896, Mar. 29, 1974);
(2) where the orders were also issued eit her in excess of
or wit hou t jur isd ict io n (Aguilar vs. Tan, L-23600,
Jan. 30, 1970; Bautista, et al. vs. Sarmiento, et al., L-
45137, Sept. 23, 1985); (3) for cer t ai n special
considerat ions, as public welfare or public policy (see
Jose vs. Zulueta, et al., L-16598, May 31, 1961, and
cases cited therein); (4) where, in criminal actions, the
court rejects rebuttal evidence for the prosecution as, in
case of acquittal, t here could be no remedy (People vs.
Abalos, L-29039, Nov. 28, 1968); (5) where the order is a
patent nullity (Marcelo vs. De Guzman, et al., L-29077,
June 29, 1982); and (6) where the decision in the certiorari
case will avoid future litigations (St. Peter Memorial Park,
Inc. vs. Campos, et al, L-38280, Mar. 21, 1975).
Furt hermore, even if the defendant had perfected his
appeal from the judgment by default rendered by the
Court of First Instance, he can still avail of cert iorari to
796
AN D M A N D A M U S
challenge a writ of execution issued by the trial court

pending said appeal (Omico Mining & Industrial Corp.
vs. Vallejos, L-38974, Mar. 25, 1975).
b. As already stated, where the remedy of appeal was
lost t hru the fault or negligence of the pet it ioner, he
cannot avail of the writ of cert iorari (Florendo vs. CFI of
Ilocos Sur, 104 Phil. 661; Phil. Surety & Insurance Co.
vs. Jacala, supra; Jose vs. Zulueta, supra; Ago vs. Baslon, L-
19631, Jan. 31, 1964; De la Cruz, et al. vs. IAC, et al,
G.R. No. 63612, Jan. 31, 1985), except where the court
acted wit hout jurisdict ion in issuing the order complained
of (Crisostomo vs. Endencia, 66 Phil. 1).
10. Also, all these pet it ions must be verified and, in
the case of cert iorari and prohibit ion, accompanied by
certified copies of the judgment or order complained of
and the pert inent pleadings and document s. They can all
be filed eit her in the Supreme Court, Court of Appeals,
or Regional Trial Court (Sec. 4). The requir ement for
verification is relaxed where all the issues involved appear
in and can readily be verified in the records of the case
wit h the court a quo or are annexed to the pet it ion
(see Note 6 under Sec. 4, Rule 7).
11. . The pet it ions are specifically required to
be accompanied by a certified true copy of the judgment
or order subject thereof. The precursor of these
revised Rules, which was Ad m in ist r at ive Circular
No. 3-96, provided t hat a certified true copy shall be such
other copy furnished to a party at his instance or in his
behalf, duly aut hent icat ed by the authorized officer or
represent at ives of the issuing entit y. That certified true
copy must further comply with all the regulations of the
issuing entit y and it is the aut hent icat ed original of such
certified true copy, and not a mere xerox copy thereof,
which can be utilized as an annex to the petit ion or
other init iatory pleading (NYK International Knitwear
Corp., etc., et al. vs. NLRC, et al, G.R. No. 146267,
Feb. 12, 2003).
797
12. A remedy is cons idered "plain, speedy and

adequate" if it will promptly relieve the petitioner from
the injurious effects of the judgment and the acts of the
lower court or agency (Silvestre vs. Torres, et al., 75 Phil.
885). Thus, while in the regular course of appeal the
interlocutory acts of the court may be assigned as errors,
such remedy may not necessarily be adequate as it can be
availed of only in the future and prejudice may have been
caused in the interim, hence cert iorar i is permitted to be
availed of (Villalon, et al. vs. IAC, et al, G.R. No. 73751,
Sept. 24, 1986).
13. The rule is that, before cert iorar i may be availed

of, the pet it io ner must have filed a motion for the
reconsiderat ion by the lower court of the act or order
complained of (Villa-Rey Transit vs. Bello, L-18957,
April 23, 1963). The purpose of this requirement is to
enable the lower court, in the first instance, to pass upon
and correct its mistakes without the intervent ion of the
higher court. For this reason, it has been held that such
motion for reconsideration, reit erat ing the same grounds
against the order sought to be reconsidered, is not covered
by t he pro forma rule if it is dir ect ed agains t an
int er locut or y order. In the case of a final order or
judgment, a motion for reconsiderat ion prior to taking
an appeal is not required; hence, in such case, the pro
forma rule applies (BA Finance Corp. vs. Pineda, et al,
G.R. No. 61628, Dec. 29, 1982).
However, even in original actions under this Rule, a
motion for reconsideration of an interlocutory order may
be dispensed with:
(a) Where the order is a pat ent nullit y (Vigan
Electric Light Co., Inc. vs. Public Service Commission, L-
19850, Jan. 30, 1964; Luzon Surety Co. vs. Marbella, et al,
109 Phil. 734; Dir. of Lands vs. Santamaria, 44 Phil 594),
as wher e t he court a quo had no jur isd ict io n (Malayang
Manggagawa sa Esso vs. Esso Standard, Inc., L-24224, July
20, 1965);
798
AN D M AN D AM U S
(b) Where the quest ions raised in the cert iorar i

proceeding have been duly raised and passed upon by
the lower court (Fortich-Celdran vs. Celdran, L-22677,
Feb. 28, 1967), or are the same as those raised and passed
upon in the lower court (Pajo, etc., et al. vs. Ago, et al.,
108 Phil. 905; Legaspi Oil Co. vs. Geronimo, L-28101,
Mar. 31, 1977);
(c) Where t her e is an ur gent necessit y for the
resolution of the question and any further delay would
prejudice the int er est s of the Go ver nment (Vivo vs.
Cloribel, L-23239, Nov. 23, 1966; National Electrification
Administration vs. CA, et al., L-32490, Dec. 29, 1983) or
of the pet it io ner (Bache & Co. [Phil.], Inc. vs. Ruiz, L-
42409, Feb. 27, 1971; Gonzales, et al. vs. IAC, et al., G.R.
No. 63614, Aug. 28, 1984);
(d) Where, under the circumst ances, a motion for
reconsiderat io n would be useless, as where the court
had already indicated t hat it would deny any motion
for reconsiderat ion of its quest ioned order (People vs.
Palacio, etc., et al., 108 Phil. 220);
(e) Where pet it ioner was deprived of due process
and t here is extreme urgency for relief (Luzon Surety
Co. vs. Marbella, et al., supra);
(f) Where, in a criminal case, relief from an order of
arrest is urgent and the grant ing of such relief by the
trial court is improbable (Matutina vs. Buslon, et al.,
109 Phil. 140);
(g) Where the proceedings in the lower court are a
nullit y for lack of due process (Matute vs. CA, et al., L-
26751, Jan. 31, 1969);
(h) Where the proceeding was ex parte or in which
the petit ioner had no opportunit y to object (Republic vs.
Maglanoc, L-16848, Feb. 27, 1963); and
(i) Where the issue raised is one purely of law or
799
where public interest is involved (PALEA vs. Phil. Air

Lines, Inc., et al, L-31396, Jan. 30, 1982; Marawi
Marantao General Hospital, et al. vs. CA, et al.,
G.R. No. 141008, Jan. 16, 2001).
14. Questions offset cannot be raised in an original
action for certiorari. Only established or admitted facts
can be considered (Rubio vs. Reyes, et al., L-24581,
May 27, 1968; Jimenez, et al. vs. NLRC, et al., G.R.
No. 116960, April 12, 1996; Suarez vs. NLRC, et al, G.R.
No. 124723, July 31, 1998).
15. In original actions for certiorari under this Rule,
the findings of fact of the Court of Appeals are not
conclusive or binding upon the Supreme Court, unlike the
general rule in appeals by cert iorari under Rule 45. That
theory of conclusiveness does not apply in this special
civil action under Rule 65 (Medran vs. CA, et al, 83 Phil.
164).
Sec. 2. Petition for prohibition. — When the pro•

ceedings of an y t r ibu na l , co r po r at io n , bo ar d, officer
o r p e r s o n , w h e t h e r e x e r c i s i n g j u d i c i a l , qu a s i -
jud ic ia l or min i st er ia l funct io ns, ar e wit ho u t or in
excess of its or his ju r is d ict io n , or wit h gr ave abuse
of d is cr et io n a mo u nt i n g to lack or excess of its or
his jur is d ict io n , an d t her e i s no appea l or any ot her
plain, speed y, an d a d e q u at e r emed y i n the o r dinar y
co ur se of law, a per so n aggr ie ved t her e b y may file
a ver ified pet it io n in the pr o pe r court , alleg ing the
facts wit h cer t a int y an d pr a yi n g t hat ju d g me n t be
r ender e d co m ma nd i n g the r espo nde n t to desist from
fur t her proceedings in the act io n or mat t e r specified
t h e r e i n , o r o t h e r w i s e g r a n t i n g suc h i n c i d e n t a l
reliefs as law an d ju st ic e may r equ ir e .
The pet it io n shall likewise be acco mpa n ie d by
a cert ified t ru e copy of t he judg me n t or order subject
t her eo f, co pie s o f all p l e a d i n g s an d d o c u m e n t s
800
r e l e v a n t an d p e r t i n e n t t h e r e t o , an d a s w o r n
cert i fi cat ion of non-foru m sh op p i n g as provided in
the third p aragraph of sect ion 3 , Rule 46. (2a)
NOTES
1. Prohibit ion is a prevent ive remedy. However, to

prevent the respondent from performing the act sought to
be prevented during the pendency of the proceedings for
the writ, the pet it ioner should obtain a restraining order
and/or a writ of preliminar y injunction.
2. Prohibit io n lies against judicial or minist er ia l

functions, but not to legislative functions (Ruperto, etc.
vs. Torres, etc., et al., 100 Phil. 1098 fUnrep.J). It is
available against public officers who were appointed under
an unconst it ut ional executive order (Mun. of San Joaquin
vs. Siva, et al., L-19870, Mar. 18, 1967).
3. In order t hat prohibit io n will lie against an
execut ive officer, the pet it ioner must first exhaust all
ad m i n is t r at iv e r emed ies, as prohibit io n is available
only whe n t her e ar e no ot he r pla in, speedy and
a d e q u a t e r e me d ie s in the o r dinar y course of law
(Cabedo, et al. vs. Director of Lands, et al., L-12777,
May 23, 1961).
4. Cert iorar i, prohibit ion and manda mus do not
generally lie, subject to well-settled exceptions, against
the legislative and executive branches or the members
thereof acting in the exercise of t heir official functions,
basically in considerat ion of the respect due from the
judiciary to said depart ment s of co-equal and coordinate
ranks under the principle of separat ion of powers. Also,
the acts sought to be impugned may be essentially poli•
tical in nat ure and, as a rule, non-justiciable, since the
remedy t her efro m lies not in the courts but in the
depart ment in regard to which full discretionary authority
is vested, or by the submission thereof to the judgment
801
RULE 66 REM EDIAL LAW C O M P EN DIU M SEC. 2
of the citizenry in the proper political forum. However,

this doctrine of polit ical quest ion, as a defense and
prohibition against just iciabilit y, has significantly and
appreciably been delimited in its application and may not,
therefore, be as readily available as it was under the
former const itutional and procedural governance, in view
of the provisions of the 1987 Constitution, Sec. 1, Art. VIII
whereof provides in part as follows:
"Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights
which are legally demandable and enforceable, and
to determine whether or not there has been a grave
abuse of discret ion amount ing to lack or excess
of jurisdiction on the part of any branch or instru•
mentalit y of the Government."
This provision, however, does not apply to or provide
for justiciabilit y over a case or an issue therein where a
political question in sensu strictiore is actually involved.
5. While prohibit io n does not ordinar ily lie to
rest rain an act which is already a fait accompli, the
Supreme Court has made an exception to this doctrine
in Tan, et al. vs. COMELEC, et al. (G.R. No. 73155,
July 11, 1986) where the creation of a new province out
of the original territory of Negros Occidental had allegedly
been approved in a plebiscite and the existence of a new
province had already been proclaimed. The Court noted
the patent illegality and unconstitutionality of the creation
of said new province and the mischief and dangerous
precedent of such an act whereby those in the corridors of
power could avoid judicial intervent ion and review by
merely speedily and stealthily completing the commission
of an illegality.
6. Prohibit ion, and not mandamus, is the remedy

where a motion to dismiss is improperly denied (Enriquez
vs. Macadaeg, 84 Phil. 674).
802
Sec. 3. Petition for mandamus. — Wh e n an y

t ri b u n a l , c o rp o r a t i o n , b oard , offi cer o r p e rs o n
u n l a w f u l l y n e g l e c t s the p e rf o rm a n c e o f a n act
w h i c h the la w s p e c i f i c a l l y e n j o i n s a s a d ut y
r e s u l t i n g fro m a n offi ce , t ru st , o r s t a t i o n , o r
u n l a w f u l l y e x c l u d e s a n o t h e r from the us e an d
en j oymen t of a right or office to wh i ch such other
is ent it led, and there is no other plain, speedy and
ad eq u at e remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition
in the p roper court, allegi ng the facts with certainty
an d p r a y i n g t h at j u d g m e n t b e r e n d e r e d com •
man d i n g the resp on d en t , i mmed i at ely or at some
other time to be specified by the court, to do the act
req u i red to be don e to p rot ect the ri ght s of the
p et it ioner, and to pay the d amages su st ai ned by the
p et i t i on e r by reaso n of the wron gful acts of the
resp ond ent.
The p e t i t i o n s h a l l a l s o c o n t a i n a s w o r n
cert i fi cat ion of non-forum sh op p i n g as provided in
the third p aragraph of section 3, Rule 46. (3a)
NOTES
1. "Discretion," when applied to public functiona•

ries, means a power or right conferred upon t hem by
law of act ing officially, under certain circumst ances,
uncontrolled by the judgment or conscience of others. A
purely minist er ia l act or dut y, in cont radict ion to a
discretional act, is one which an officer or tribunal performs
in a given st at e of facts, in a prescribed manner , in
obedience to the mandat e of a legal aut horit y, without
regard to or the exercise of his own judgment upon the
propriet y or impropr iet y of the act done. If the law
imposes a duty upon a public officer and gives him the
right to decide how or when the duty shall be performed,
such duty is discret ionary and not ministerial. The duty
is ministerial only when the discharge of the same requires
803
neit her the exercise of official discretion or judgment

(Samson vs. Barrios, 63 Phil. 198; Lemi vs. Valencia, L-
20768, Nov. 29, 1968; Meralco Securities Corp. vs. Savellano,
et al., L-36181, Oct. 23, 1982).
2. Mandamus will lie to compel the performance of a
minist erial duty, not a discretionary duty (Sy Ha vs.
Galang, L-18513, April 27, 1963), and petit ioner must
show that he has a well defined, clear and certain right to
warrant the grant thereof (Avenue Arrastre & Stevedoring
Corp. vs. Commissioner of Customs, L-44674, Feb. 28,
1983; Sales vs. Mathay, et al., L 39537, May 31, 1984).
Thus, ma nda mu s will not lie to compel the school
authorit ies to graduate a student who has failed to comply
with the disciplinary and academic rules of the school as
said wr it cannot review or cont rol the exercise of
discret ionary powers (Magtibay vs. Garcia, L-28971,
Jan. 25, 1983). The same rule applies to a student who
was denied readmission to a school on similar grounds
(Tangonan vs. Paho, et al., L 45157, June 27, 1985).
3. A writ of mandamus will not issue to control the

exercise of official discretion or judgment, or to alter or
review the action taken in the proper exercise of the
discretion or judgment, for the writ cannot be used as a
writ of error or other mode of direct review (34 Am.
Jur. 856). This doctrine underlies our rules on this special
civil action, which is of American vintage, and exceptions
to or permutat ions thereof are generally not allowed in
the ordinary course of procedure.
4. However, in ext reme sit uat io ns generally in
criminal cases, mandamus lies to compel the performance
by the fiscal of what ostensibly are discretionary functions
where, by reason of grave abuse of discretion onTiis part,
his act uat ions are t ant amo unt to a willful refusal to
perform a duty specifically required by law (see Notes 4
and 5 under Sec. 1, Rule 110).
804
RUL E 65 CER TI O R ARI . P R O H I B I T I O N SEC . 3
AN D M AN D AM U S
It has also been held t hat while the discretion of a

court will not ordinarily be controlled by mandamus, where
such discretion of the court can be legally exercised in only
one way and it refuses to act, mandamus will lie to compel
the court to excercise it. Mandamus can be employed to
correct errors of lower courts to prevent a failure of justice
or irreparable injury where there is a clear legal right and
there is an absence of any adequate remedy, as where
there is no appeal or such remedy by appeal is inadequat e.
It may also be employed to prevent an abuse of discretion
or to correct an arbit rary action which does not amount to
exercise of discret ion (People vs. Orais, 65 Phil. 744; Tuvera-
Luna, Inc. vs. Nable, 67 Phil. 340).
Furt her, the general rule is t hat in the performance
of an official duty or act involving discretion, such official
can only be directed by mandamus to act but not to act
one way or the other. An exception to this rule is where
there has been gross abuse of discretion, manifest injustice,
or palpa ble excess of a ut ho r it y , in which case t he
r e s p o nd e n t can be o r der e d to act in a p a r t ic u l a r
ma nner , especially where a co nst it ut io nal right has
been violated (Kant Wong, et al. vs. PCGG, et al., G.R.
No. 79484, Dec. 7, 1987).
5. While mandamus lies to compel a court to give
due course to t he appeal which i t has er ro neously
dismissed, manda mus will not lie to compel a court to
dismiss the appeal as the remedy is to assign such failure
to dismiss as an error in the course of the appeal (Lapisan
vs. Alfonso, 78 Phil. 842).
6. Where the appeal is frivolous and intended solely
for delay, the appellat e court may proper ly deny a
petition for mandamus seeking to compel the trial court
to certify the appeal (MRR Co. vs. Ballesteros, L-19161,
April 29, 1966).
805
7. Formerly, when there was no period fixed for the

filing of the petition for mandamus, the time was variable
as the ends of justice may demand (Reparations Commis•
sion vs. Macadaeg, L-20619, July 29, 1968), but the
petition must be filed within a reasonable time and the
pet it ioner must not be guilty of laches (Contreras vs.
Villaraza, et al., G.R. No. 53372, Aug. 21, 1980). The
policy of the Supreme Court is not to deny the writ if the
result would be to deprive a party of his substantive rights
and leave him without remedy (Centenera vs. Yatco, 106
Phil. 1064; Phil. Merchant Marine Academy vs. CA,
et al, L-38212, Feb. 27, 1976). Now, under the next
section, the petition must be filed not later than 60 days
after notice of the judgment, order or resolution.
8. Where a municipalit y fails wit hout justifiable

cause to pay a final money judgment against it, the
claimant may avail of mandamus to compel the enactment
and the corresponding disbursement of municipal funds
therefor. Aside from the fact that it is a ministerial and
mandatory duty to obey a final judgment, this remedy is
further justified by the fact that public funds or property
necessar y for public use are generally exempt from
at t achme nt or execut ion, hence the claimant would
ot her w ise be st uck wit h an empt y ju d g me n t (see
Municipality of Makati vs. CA, et al, G.R. Nos. 89889-
99, Oct. 1, 1990).
9. Mandamus does not lie to compel the perfor•

mance of a contractual duty (Quiogue vs. Del Rosario,
46 Phil. 337), especially if the contract is disputed, and
such mandamus suit cannot be converted into an ordinary
action for breach of contract (NAMARCO vs. Cloribel, L-
27260, April 29, 1968). Sec. 3 refers to acts enjoined by
law to be done, hence, contractual duties are outside the
scope of the writ (Prov. ofPangasinan vs. Reparations
Commission, et al, L-27448, Nov. 29, 1977). Furthermore,
t here are ot her available remedies in the ordinar y
806
AN D M AN D AM U S
course of law to enforce cont ract ual obligat ions. See

Commission on Elections, et al. vs. Quijano-Padilla, et
al. (G.R. No. 151992, Sept. 18, 2002) where this mat t er
was extensively discussed, together with the cases cited
therein.
10. Mandamus can be availed of only by the part y

who has direct legal int erest in the right sought to be
enforced. However, if the question is one of public right
and the object of the mandamus suit is to procure the
performance of a public duty, it is sufficient to show t hat
the pet it ioner is a citizen even if he has no special int erest
in t he r esu l t (Benitez vs. Paredes, et al., 52 Phil.
113; Tahada, et al. vs. Tuvera, et al, G.R. No. 63915,
April 24, 1985).
11. . A petition for mandamus is premat ure if

there are administ rat ive remedies available to the
pet it ioner (Perez vs. City Mayor of Cabanatuan, L-16786,
Oct. 31, 1961). Where, however, the case involves
only legal quest ions, the lit igant need not exhaust all
administrat ive remedies before such judicial relief can be
sought (Espahol vs. The Chairman, etc., of the PVA, L-
44616, June 29, 1985).
12. Where the issue of damages was raised in the
trial court in the same petit ion for certiorari, prohibit ion
and m a n d a m u s and the ad ver s e part y had a mp le
opportunit y to defend itself, the court may validly award
such da mage s. Said claim was in t he nat ur e of an
independent cause of action, distinct and separate from
the issue of whether or not mandamus will issue, but joined
with the cause of action for the writs prayed for without
opposition on the part of the respondent therein. This is
allowed by Rule 135 which permits the adoption of any
suitable mode or proceeding if no specific procedure is
pointed out and also in order to avoid mut iplicit y of
suits (Executive Secretary, et al. vs. CA, et al, L-37999,
June 10, 1988).
807
13. In a special civil action for mandamus in the Court

of Appeals, said court has the power to award damages
prayed for as an incident or the result of the respondent's
wrongful act in failing and refusing to do the act required
to be done. The Solicitor General's theory that the rule
in question is a mere procedural one allowing joinder of
an action of ma nda mu s and anot her for damages is
untenable, for it implies that a claim for damages arising
from the commission or failure to do an act subject of a
mandamus suit may be litigated separately from the latter.
Furt hermore, the fact that the petitioner has obtained
authorit y for partial execution of the judgment, consisting
of his reinst at ement and payment of back salaries, does
not estop him from pursuing his claim for damages against
the respondent for the latter's refusal to comply with a
final and executory judgment of competent authorit y. The
Court of Appeals acted correctly in allowing the petitioner
to pursue said claim for damages by treat ing its judgment
in the ma nda mus act ion as divisible and capable of
being enforced in parts (Vital-Gozon, etc. vs. CA, et al.,
G.R. No. 101428, Aug. 3, 1992).
Sec. 4. When and where to file 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 recon si derati on or new trial
is timely filed, wh et her such motion is required or
not, the petition shall be filed not later than sixty
(60) days counted from notice of the denial of the
motion.
If the petition relates to an act or an omission
of a mu n i ci pal trial court or of a corp orati on, a
board, an officer or a person, it shall be filed with
the Regional Trial Court e xe rci si n g j u ri sd i cti on
over the territorial areas as defined by the Supreme
Court. It may also be filed with the Court of Appeals
or with the S an d i gan b ay an , wh eth e r or not the
808
RUL E 65 CER TI O R ARI , P R O H I B I T I O N SE C 4
AN D M AN D AM U S
same is in aid of the court's appellate ju ri sdi ct ion.

If the p eti ti on in volves an act or omi ssion of a quasi-
j ud icial agency, un less oth erwi se provided by law
or t h es e ru les, the petition shall be filed with and
be cogni zab le only by the Court of Appeals.
I n e l e c t i o n c a s e s i n v o l v i n g a n ac t o r a n
omi ssi on of a mun icip al or a region al trial court,
the p e t i t i o n sh al l b e filed e xc l u s i v e l y wit h the
Co m mi s si o n on El ect i on s , in aid of its ap p el lat e
j u ri s d i c t i on . (As amended in A.M. No. 07-7-12-SC,
effective Dec. 27, 2007)
NOTES
1. In the absence of special reasons, the Supreme

Court although it has concurrent original jurisdiction with
the Court of First Instance, will not take cognizance of
these pet it ions. This is especially true where the petit ion
involves quest ions of fact and may ent ail recept ion of
evidence (Veraguth vs. Isabela Sugar Co., 57 Phil. 266;
Vergara vs. Suelto, et al., G.R. No. 74766, Dec. 21, 1987).
2. A pet it ioner desiring to avail himself of these
ext raordinar y writ s is not at complete liberty to file his
petition in any of the above-stated courts just because
they have concurrent original jurisdict ion over the same.
He cannot, through whim or caprice or to secure an undue
adva nt age, disr egar d the hier archy of court s in our
judicial system, which hierarchy is one of the structural
aspects intended for the orderly administrat ion of just ice.
Thus, in the cert iorari case of Santiago vs. Vasquez,
et al. (G.R. Nos. 99289-90, Jan. 27, 1992), the Supreme
Court had the occasion to stress the rule to be observed in
this regard, as follows:
"One final observation. We discern in the pro•
ceedings in t his case a propensit y on the part of
809
RULE 65 REM EDIAL LAW CO M P EN DIU M SEC. 4
petitioner, and, for that matter, the same may be said

of a number of lit igant s who init iat e recourses
before us, to disregard the hierarchy of courts in our
judicial system by seeking relief directly from this
Court despite the fact that the same is available in
the lower courts in the exercise of t heir original or
concurrent jurisdiction, or is even mandated by law
to be sought therein. This practice must be stopped,
not only because of the imposition upon the precious
time of this Court but also because of the inevitable
and result ant delay, intended or otherwise, in the
adjudicat io n of the case which often has to be
remanded or referred to the lower court as the proper
forum under the rules of procedure, or as better
equipped to resolve the issues since this Court is not
a trier of facts. We, therefore , reiterate the judicial
policy t hat this Court will not entertain direct resort
to it unless the redress desired cannot be obtained in
the appropriat e courts or where except ional and
compelling c ir cumst ances just ify availment of a
remedy wit hin and calling for the exercise of our
primary jurisdiction.
For the guidance of the bench and the bar, we
elucidate t hat such policy includes the mat t er of
petitions or motions involving hold departure orders
of the trial or lower courts. Parties with pending
cases therein should apply for permission to leave
the country from the very same courts which, in the
first instance, are in the best position to pass upon
such applicat ions and to impose the appropriat e
conditions therefor since they are conversant with the
facts of the cases and the ramifications or implications
thereof. Where, as in the pr esent case, a hold
departure order has been issued ex parte or motu
proprio by said court, the party concerned must first
exhaust the appropriate remedies therein, through
a motion for reconsiderat ion or other proper sub-
810
RUL E 65 CER TI O R ARI . P R O H I B I T I O N SEC . 4
AN D M AN D AM U S
mission or by filing the requisite application for travel

abroad. Only where all the conditions and require•
ment s for the issuance of the extraordiary writs of
cert io rar i, prohibit io n or ma nda mus indubit abl y
obtain against a disposition of the lower courts may
our power of super visio n over said t r ibu na ls be
invoked through the appropriate petition assailing on
jurisdict ional or clearly valid grounds their actuat ions
therein."
This policy of the Supreme Court not to ent ert ain
direct resort to it unless compelling just ification exists
t her efor, as ear lie r expla ined, has been r e it er at e d
in subsequent cases, such as Uy vs. Contreras, et al.
(G.R. No. 123352, Feb. 7, 1996), Bercero vs. De Guzman
(G.R. No. 123573, Feb. 28, 1996), Advincula vs. Legaspi,
et al. (G.R. No. 125500, Aug. 7, 1996), and applied with
significant effects in the later case of St. Martin Funeral
Home vs. NLRC, et al. (G.R. No. 130866, Sept. 16, 1998).
3. . Fo r mer l y , the Co urt of Appeals could

t ak e cognizance of these original actions only in aid
of its appellate jurisdict ion. Thus, if the decision in the
main case was not appealable, or, if appealable, the
same was within the appellate jurisdict ion of the
Supreme Court, the petit ion could not be instituted in the
Court of Appeals, as it would not thereby be acting in
aid of its appellate jurisdiction (Breslin vs. Luzon
Stevedoring Co., 84 Phil. 618; Pineda & Ampil Mfg. Co., et
al. vs. Bartolome, et al., 95 Phil. 930). Also, t he
Court of Appeals had no jur isdict io n to ent ert ain a
pet it ion for cert iorari and prohibit ion to nullify a writ
of execution as the order grant ing the writ is not
appealable (J.M. Tuazon & Co., Inc. vs. Estabello, L-
20610, Jan. 9, 1975).
In a case, the Supreme Court ent ert ained an original
action for certiorari and prohibition where the question
presented in said petit ion was one of law, by analogy with
the rule t hat appeals on pure quest ions of law are
811
appealable direct ly to the Supreme Court, even if the

judgment t hat may be rendered in the main case is
appealable to the Court of Appeals (see Sangalang vs.
People, 109 Phil. 1140). However, the rule was later
clarified to the effect t hat the original jurisdiction of the
Court of Appeals to issue said writs in aid of its appellate
jurisdiction was not determined by the kind of questions
raised, as of fact or law, but by the merits of the appeal in
view of its nature (Phil. Merchant Marine Academy vs.
CA, et al., L 38212, Feb. 7, 1976).
This cont roversy has felicitously been settled by
Sec. 9, B.P. Blg. 129 which confers concurrent jurisdiction
on the I nt er mediat e Appellate Court (now, Court of
Appeals) over original actions for the issuance of said writs
whet her or not the same are in aid of its appellat e
jurisdiction.
Sec. 5. Respondents and costs in certain cases. —

Whe n t he p e t i t i o n filed r e l a t e s t o t he act s o r
o mis s io ns of a judge , court , quas i- jud i c ia l agency,
t r i bu na l , co r po r at io n , bo ard, officer or per so n, the
p e t i t i o n e r sha l l jo i n a s p r i v a t e r e s p o n d e n t o r
r e s p o n d e n t s w it h su c h p u b l i c r e s p o n d e n t o r
r e s p o nd e nt s , the per so n o r per so n s i nt er e st e d i n
su st a i n i n g the pr o c ee d i ng s in the court ; an d i t shall
be the dut y of suc h pr ivat e r e s po nd e nt s to appea r
an d defend, bot h in his or t he i r own behalf and in
be ha l f o f t he pub l i c r e s p o n d e n t o r r e s p o n d e n t s
affected by the pr o cee d ing s , an d the costs awar de d in
such pr o c e ed i ng s in favor of the pet it io ne r shall be
aga ins t the pr i vat e r e s p o nd e nt s only, an d not agains
t the judge , quas i- jud ic ia l agenc y, t r ibu na l ,
co r po r at io n, bo ar d, officer or per so n imp leaded as
public r e s p o nd e n t o r r e s po nd e nt s .
Unless o t her w is e specifically d ir ect ed by the
Co urt wher e t he p et it io n i s p e nd i ng , the public
r e s po nd e nt s shall not appea r in or file an answe r
812
AN D M AN D AM U S
or commen t to the petition or any p lead in g t h erein.

If the case is elevat ed to a higher court by either
party, the p u b li c re s p o n d en t s shall be i n clu d e d
the rei n a s n o m i n a l p a rt i e s . H o w e v e r , u n l e s s
ot h erwi s e sp eci fi cally directed by the court, they
shall not appear or participate in the p roceedi ngs
t herei n. (5a)
NOTES
1. . The a m e n d m e nt s in t his sect ion

e nu me r a t e who shall be impleaded as public
respondent s in the action and their permissible
part icipat ion therein, as well as the duties and liabilit ies
of the private respondent s. It will be r ecalled t hat in
appeal by cer t io r ar i UNDE R Rule 45, the Court of
Appeals shall no longer be impleaded as a respondent.
The reason for the difference is t hat Rule 45 governs an
appellate review by cert iorari, hence t here can properly
be no public respondent since the dispute is actually
between the contending part ies in the case, t hat is, the
appellant and the appellee in the Court of Appeals who
are respectively the petit ioner and the respondent in
the Supreme Court.
On the ot her hand, Rule 65 involves an original
special civil action specifically directed against the person,
court, agency or part y a quo which had committed not
only a mistake of judgment but an error of jurisdiction,
hence they should be made public respondent s in t hat
action brought to nullify t heir invalid acts. It shall,
however, be the duty of the party litigant, whet her in an
appeal under Rule 45 or in a special civil action in Rule
65 , to defend in his behalf and t he part y whose
adjudication is assailed, as he is the one interested in
sustaining the correctness of the disposition or the validity
of the proceedings.
2. The party interested in sustaining the proceedings
in the lower court must be joined as a co-respondent and
813
he has the duty to defend in his own behalf and in behalf

of the court which rendered the questioned order. While
there is nothing in the Rules t hat prohibits the presiding
judge of the court involved from filing his own answer
and defending his questioned order, the Supreme Court
has reminded judges of the lower courts to refrain from
doing so unless ordered by it (Turquenza vs. Hernando,
et al., G.R. No.51626, April 30, 1980). The judicial norm
or mode of conduct to be observed in trial and appellate
courts is now prescribed in the second paragraph of this
section.
3. The private respondent being an indispensable

party, his non-inclusion would render the petition for
cert iorari defective (Amargo vs. CA, et al., L-31762,
Sept. 19, 1973). The judge in cert iorari proceedings
is merely a nominal or formal part y (Republic vs. CFI of
Lanao de Norte, et al, L-33949 and L-22986, Oct. 23,1973;
Taroma, et al. vs. Sayo, et al, L-37296, Oct. 30, 1975).
4. A person not a party to the proceedings in the trial
court or in the Court of Appeals cannot maint ain an
action for cert iorari in the Supreme Court to have the
judgment reviewed (Ramos vs. Lampa, 63 Phil. 216).
See also Tang, et al. vs. CA, et al (G.R. No. 117204,
Feb. 11, 2000).
Sec. 6. Order to comment. — If t he p et it io n is

suffic ient i n for m an d s u b s t a nc e t o just ify such
process, the Co urt shall issue an o r de r r e q u ir i n g the
r e s p o n d e n t o r r e s p o n d e n t s t o co m m e n t o n the
pet it io n w it hin te n (10) days from r ece i pt of a copy
t he r eo f . S uc h o r d e r s ha l l b e s e r v e d o n t he
r e spo nd e nt s in such ma n ner as the co urt may direct ,
t o get her wit h a copy of the pet it io n and any a nne xe s
t her et o .
In pet it io ns for cer t io r ar i before t he Supr e me
Court an d the Co urt of Appeals, the pro vis io ns of
814
RUL E 65 CERTIO RARI, P R O H I B I T I O N SEC . 6
AN D M AN D AM U S
secti on 2, Rule 56, shall be observed. Before giving

du e c ou rs e t h e re t o , the Cou rt may re q u i r e the
re s p o n d e n t s to file t hei r commen t to, and not a
mot i o n to d i smi ss , the petit ion. Thereaft er, the
cou rt may req u i re the filing of a reply and such
other resp on si ve or other p leadi ngs as i t may deem
n ecessa ry and proper. (6a)
NOTES
1. In the pet it io ns under t his Rule filed in the

Regional Trial Court, no prior service of a copy thereof on
the respondent is required. The trial court, as provided
in this section, shall first determine whether the petition
is sufficient in form and substance to justify such process
and, if so, shall order the respondent to comment thereon.
Such order shall be served on said respondent together
with a copy of the petition and any annexes thereto. This
procedural aspect is similar to t hat in petitions for relief
from judgment s, orders and so forth (Sec. 4, Rule 38).
On the other hand, pursuant to the second paragraph
of t his sect ion, in pet it io ns for cert iorar i before the
Supreme Court and the Court of Appeals, there must be
proof of prior service of a copy of said petition on the
respondent, aside from the other requirement s such as
the contents and certifications provided therefor. The
failure of the pet it ioner to comply with any of the fore•
going r equir ement s shall be sufficient ground for the
dismissal of the petit ions (Sec. 2, Rule 56, in relation to
Sec. 3, Rule 46).
2. The respondent, is now required to file a comment,
instead of an answer, to the petition and this applies to
any court wherein the action is filed. If it is in the Re•
gional Trial Court, there shall be a hearing or submission
of memoranda, as provided in and subject to the provisions
of Sec. 8. In the Court of Appeals and the Supreme Court,
no hear ing is required but the Court may require a reply
816
and such other and further pleadings as may be necessary

and proper. See, however, A.M. No. 99-2-04-SC laying
down the new procedure dispensing with rejoinder and
providing in stead for sub mi ssion of memoranda
(Appendix R).
If the petition is insufficient in form and substance,
the same may be forthwith dismissed without further
proceedings.
Sec. 7. Expediting proceedings; injunctive relief. —

The court in which the petition is filed may issue
orders exp ed i tin g the p roceed in gs, and it may also
grant a temp orary rest rai ni ng order or a writ of
preli minary injunction for the preservation of the
rights of the parties p end in g such proceedings. The
p e t i t i o n shal l no t i n t e rru p t the cou rs e o f the
p ri n ci pal case, u n les s a t emp o ra ry rest rai n i n g
order or a writ of preli minary injunction has been
i s s u e d , e n j o i n i n g the pu b li c r e s p o n d e n t from
further p roceed in g 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, ab sent a temporary rest raini ng order or
a preli minary injunction, or upon its expiration.
F a i l u r e o f the p u b li c r e s p o n d e n t t o p ro c e e d
with the p ri ncip al case may be a ground for an
admini st rative charge. (As amended in A.M. No. 07- 7-12-
SC, effective Dec. 27, 2007)
Sec. 8. Proceedings after comment is filed. — After

the commen t or other p lead in gs 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 p eriod for fi li ng, the Cou rt finds that the
816
RUL E 65 CER TI O R ARI , P R O H I B I T I O N SE C 9
AN D M AN D AM U S
allegati on s of the petition are true, i t shall render

j u d gmen t for such reli ef to which the petitioner is
entitled.
H owever, the court may di smi ss the petition i f
i t fi n d s the sam e p a t e n t l y w i t h o u t me ri t o r
p rosecut ed manifest ly for delay, or if the q u esti on s
rai sed t h e re i n are too u n s u b st a n t i a l t o req u i r e
con si d e rat i on . In such event, the court may award
in favor of the resp on d en t treb le costs solidari ly
agai n st the p etit ioner and counsel, in addition to
s u b j e c t i n g c o u n s e l t o a d m i n i s t ra t i v e s a n c t i o n s
under Ru les 139 and 139-B of the Rules of Court.
The Court may impose motu proprio, based on
res ipsa loquitur, other d i scip lin ary san ct i on s or
measu re on erring lawyers for patent ly dilatory and
u n me ri t ori ou s p etit ion s for certiorari. (As amended
in A.M. No. 07-7-12-SC, effective Dec. 27, 2007)
NOTES
1. Sec. 7 now provides for the issuance of a tempo•

rar y r e s t r a i n i n g order, and not only for a writ of
preliminary injunction, but such order shall be subject to
the rules on the grounds and duration thereof.
2. Sec. 6 contemplates the outright dismissal of the
petition which is insufficient in form and substance, in
line with the last paragraph of Sec. 3, Rule 46. Sec. 8, on
the other hand, governs after the comment is filed and
aut horizes the dismissal of the petit ion if found to be
patently without merit, dilatory or too unsubst ant ial to
merit consideration.
Sec. 9. Service and enforcement of order or judgment.

— A cert i fied copy of the j u d gmen t ren d ered in
accord ance with the last precedin g section shall be
se rv e d up o n the cou rt , q u a s i - j u d i ci a l a g en c y ,
817
t ri b u n al, co rp o rat i on , board, officer or person

concerned in such manner as the court may direct,
and d i s o b e d i en c e t h e re t o shall be pu n i sh e d as
contempt. An execu ti on may issue for any damages
or costs awarded in accordance with section 1 of
Rule 39. (9a)
NOTE
1. Where the higher court finds t hat the lower court

was in error, ordinarily the case is remanded to the lower
court for further appropriate proceedings. However, it
may render judgment on the merits without remand of
the case where the facts revealed by the pleadings clearly
show that the petit ioner is ent itled to the relief prayed for
(see Lina us. Purisima, L-39380, April 14, 1978). Thus,
in a cert iorari case where the lower court rendered a
default judgment for an amount much higher t han that
authorized by the Rules, the Supreme Court decided the
case on the merits, instead of remanding the same, since
certiorari is also equitable in character (Ledesma Ouerseas
Shipping Corp. us. Auelino, L-47698, April 28, 1978).
818
RULE 66
QUO WARRANTO
S e c t i o n 1. Action by Government against

individuals. — An act i o n for the u su rp at i o n of a
p ub li c office, p osi t i on or franchi se may be com•
men ced by a verified petition brought in the name
of the Repu b lic of the Ph i li pp in es against:
(a) A person wh o usurp s, i nt rud es into, or un•
lawfully holds or exerci ses a public office, position
or franchi se;
(b) A public officer who does or suffers an act
which, by p rovi si on of law, con stit ut es a ground for
the forfeiture of his office; or
(c) An associat ion wh i ch acts as a corporation
w i t h i n the P h i l i p p i n e s w i t h o u t b ei n g l e g a l l y
i n corp orated or wi t hout lawful authority so to act.
(la)
NOTES
1. This amended Rule is now limited to quo warranto

proceedings involving a public office, position or franchise.
Par. (c) of Sec. 1 refers to an association which exercises
corporate functions or powers although it has not been
legally incorporated. In the case of a legally incorporated
ent ity, the quo warranto action is now governed by the
Corporation Code. For that reason, the former Sec. 2 of
this Rule, which provided for quo warrant o against a
co rpor at io n, has not been reproduced here, and all
references to proceedings in quo war r ant o invo lving
corporations as provided in the former Rule have been
eliminated.
2. Quo warranto is the remedy to try disputes with
respect to the title to a public office. Where, however,
819
RULE 66 REM E DI A L LAW COMPENDIU M SEC. 1
there is no dispute as to who has the title to the public

office but the adverse part y, wit hout lawful ground,
prevents the rightful occupant from assuming the office,
mandamus is the remedy to oust the usurper (Lota vs.
CA, et al., L-14803, June 30, 1961).
3. Quo warranto is distinguished from an election
contest, thus:
a. The basis for quo warranto is t hat the occupant is
disqua lified from ho ld ing the office by r easo n of
ineligibility or dislo yalty. An election contest challenges
the right of a person to hold office on the ground of
irregularit ies in the conduct of the elections for said office
(Falcotelo vs. Gali, L-24190, Jan. 8, 1968).
b. If the quo warr ant o proceeding succeeds, the
respondent will be ousted but the petitioner will not assume
the office. In election contests, the successful protestant
will assume the office if he had obtained a pluralit y of the
valid votes.
4. The distinctions between quo warranto actions in
elective and appointive offices are as follows:
a. In quo warrant o proceedings affecting elective
offices, the issue is the eligibility of the respondent. In
those involving appointive offices, the issue is the validit y
of the appoint ment.
b. Where an elective office is involved, the occupant
who was declared ineligible or disloyal will be unseated
but the petitioner will not be declared the rightful occu•
pant of the office. In appointive offices, the court will
oust the person illegally appointed and will order the
seat ing of the person who was legally appointed and
ent itled to the office (Nuval vs. Guray, 52 Phil. 653;
Gaerlan vs. Catubig, L-23964, June 1, 1966).
5. Quo warranto, as a rule, is commenced by the
Government as the proper party plaintiff. The exception
820
RUL E 66 QU O W AR R AN T O S E C S . 2- 4
is when a person claims to be ent it led to the public office

allegedly usurped by another in which case he can bring
the action in his own name (Sec. 5).
By analogy with the provisions of Sec. 5, it has been
held t hat a public utility may bring a quo warranto action
against another public utility which has usurped the rights
of the former granted under a franchise (Cui vs. Cui, 60
Phil. 57).
Sec. 2. When Solicitor General or public prosecutor

must commence action. — The Solicitor General or a
public p rosecutor, whe n directed by the Presi d ent
of the P h i l i p p i n e s , or wh e n upo n c o m p l a i n t or
ot h erwi s e he has good reason to believe that any
cas e s p e c i f i e d i n the p re c e d i n g s e c t i o n ca n b e
est ab li sh ed by proof, must commen ce such action.
(3a)
Sec. 3. When Solicitor General or public prosecutor

may commence action with permission of court. — The
Soli citor Gen eral or a public prosecutor may, with
the p ermi s si on of the court in which the action is
t o b e c o m m e n c e d , b ri n g suc h a n act i o n a t the
req u est and upon the relation of an ot her person;
but in such case the officer b ringing it may first
requi re an i n demni ty for the e xp en ses and costs of
the act i o n in an amou n t ap p roved by and to be
d e p o s i t e d in the Cou rt by the p erso n at wh os e
r e q u e s t an d up o n wh os e re l a t i o n the sam e i s
brought. (4a)
Sec. 4 . When hearing had on application for

permission to commence action. — Upon application for
p ermi ssi on to commen ce such action in accordance
with the next p reced i n g secti on, the cou rt shall
direct that notice be given to the respondent so that
he ma y be h ear d in o p p o s i t i o n t h eret o ; and i f
821
RULE 66 REM E DI A L LAW C O M P E N D I U M SECS. 5. 6
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. (5a)
Sec. 5. When an individual may commence such an

action. — A person clai ming to be entitled to a public
office or p osit ion u su rp ed or unlawfully held or
exercised by another may bring an action therefor
in his own name. (6)
NOTES
1. The Solicitor General or the public prosecutor may

commence a quo warranto action (a) when directed by the
President, (b) when he has good reason to believe that he
can establish a case under the grounds in Secs. 1 and 2,
and (c) at the request and upon the relat ion of another
person (ex relatione) but, in this case, leave of court must
first be obtained, and he may also require an indemnity
bond from the relator.
2. The person inst itut ing quo warranto proceedings
in his own behalf, under Sec. 5, does not have to secure
the intervention of the Solicitor General or the fiscal, nor
does he have to obtain prior leave of court (Cui vs. Cui,
supra). However, such pet it ioner in the quo warranto
proceeding must aver and be able to show t hat he is
entitled to the office in dispute. Without such averment
or evidence of such right, the action may be dismissed at
any stage (Garcia vs. Perez, L-28184, Sept. 11, 1980).
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
avermen t of his right to the same and that the
822
RUL E 66 QU O WARR ANT O SE C S . 7 , 8- 9
r e s p o n d e n t i s u n l aw fu l l y in p o s s e s s i o n thereof.
All p erson s wh o clai m to be ent it led to the publi c
office, p osit i on or franchi se may be made parties,
and thei r resp e ct i ve rights, to such public office,
p o s i t i o n o r f ra n c h i s e d e t e r m i n e d , i n the sam e
action. (7a)
Sec. 7. Venue. —A n action under the p rec ed i n g

six s ect i on s can be b rou ght only in the S u p rem e
Cou rt, the Court of Ap p eals , or in the Regi on a l
Trial Court e xe rci si n g ju ri sd icti on over the terri•
t ori al are a wh e r e the r e s p o n d e n t or an y of the
re sp on d en t s resi d es, but when the Solicitor General
c o m m e n c e s the act i on , i t ma y be b rou gh t in a
Regional Trial Court in the City of Manila, in the
Court of Ap p eals, or in the S up reme Court. (8a)
NOTE
1. Sec. 7 has been amended to include the Court

of Appeals, consonant with the provision of Sec. 9, B.P. Blg. 129 grant in
actions, concurrent ly with the Supreme Court and the
Regional Trial Court.
Sec. 8. Period for pleadings and proceedings may

be reduced; action given precedence. — The court may
red u c e the p eri o d p rovi d e d by t h es e Ru le s for
filing p lead i n gs and for all other p roceed in gs in the
act i o n i n ord er t o secu r e the mos t e xp e d i t i o u s
d e t e r m i n a t i o n o f the mat t e r s i n v o l ve d t h e re i n
c o n s i s t e n t wit h the right s of the p art i es. Suc h
action may be given preced ence over any other civil
matter p en d i n g in the court. (9a)
Sec. 9. Judgment where usurpation found. —

When the resp on dent is found guilty of usu rping,
i nt ru di ng into, or unlawfully holding or exe rci si ng
823
RULE 66 REM EDIAL LAW CO M PE NDI U M SECS. 10-11
a public office, position or franchise, judgment shall

be rendered that such resp on dent be ousted and
a l t o g e t h e r e x c l u d e d t h e r e f r o m , an d that the
petitioner or relator, as the case may be, recover
his costs. Such further j u dgment may be rendered
d et e rm i n i n g the re sp ect i ve rights in and to the
public office, positions or franchise of all the parties
to the action as justice requires. (10a)
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 execut ion of the office, and may immediately
thereafter demand of the respondent all the books
and papers in the respondent' s custody or control
app ert ai nin g to the office to which the judgment
relates. If the resp on dent refuses or neglects to
deliver any book or paper pursuant to such demand,
h e ma y b e p u n i s h e d for c o n t e m p t a s h a v i n g
disobeyed a lawful order of the court. The person
adjudged entitled to the office may also bring action
agai n st the re sp o n d en t to recove r the d amage s
s u s t a i n e d b y su c h p e rs o n b y re a s o n o f the
usu rpation. (15a)
Sec. 11. Limitations. — Not hi n g cont ain ed in

this Rule shall be construed to authorize an action
against a public officer or employee for his ouster
from office un less the same be commen ced 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 authori ze an action for damages in
a c c o r d a n c e wit h the p r o v i s i o n s o f the nex t
preceding section unless the same be commenced
824
RUL E 66 QU O WARR ANT O SEC . 12
within one (1) year after the entry of the j u d gmen t

est ab li sh i n g the petitioner' s right to the office in
q u esti on. (16a)
Sec. 12. Judgment for costs. — In an actio n

b rou ght in accord an ce with the p rovi si on s of this
Ru le , the Cou rt ma y ren d e r j u d g m e n t for cost s
agai n s t eit h e r the p et i t i on er, the relat or, or the
re sp on d en t , or the person or p erson s clai mi n g to
be a corp o rat i on , or may ap p o rt i on the costs, as
j u sti ce requ i res. (17a)
NOTES
1. The periods within which the quo warranto action

should be br o ugh t are co ndit io ns pr ec ed e n t to the
existence of a cause of action. Consequently, the action
cannot prosper if it was brought beyond said periods even
if such a defense was not raised by the defendant in the
lower court (Abeto vs. Rodas, 82 Phil. 59; cf. Unabia vs.
City Mayor, et al., 99 Phil. 252, applying the same rule in
an action for reinst at ement ).
2. In quo warranto actions over a public office, the

filing of the complaint suspends the running of the one-
year period. Should the complaint be dismissed without
prejudice, the one-year period st art s to run again, and
the plaintiff has the balance of the period within which to
re-inst it ut e the action (Mendiola vs. Tancino, et al., 109
Phil. 317).
3. The one-year period, however, is not int errupt ed
by the prosecution of any administrat ive remedy as, in
quo w a r r a nt o pro ceed ings, no one is co mpelled to
resort to administ rat ive remedies since public int erest
requires t hat the right to public office should be determined
as speedily as possible (Galano, et al. vs. Roxas, L-31241,
Sept. 12, 1975; Sison vs. Pangramuyen, et al., L-40295,
825
RULE 66 REMEDIAL LAW COMPENDIUM SEC. 12
July 31, 1978; Garcia vs. Perez, supra; Palma Fernandez

vs. De la Paz, et al., G.R. No. 79846, April 15, 1988).
4. In the exceptional case of Cristobal vs. Melchor,
et al. (L-43203, July 29, 1977), the one-year period was
not applied, on equit able consider at ions, against an
employee who failed to seek relief by quo warranto within
the period. It was proved t hat his failure to join his co-
employees as a plaintiff in the quo warranto action was
due to the fact t hat not only did he continuously press
for his reinst at ement but he was actually promised such
reinst at ement . In fact, some of his co-employees who
were plaintiffs in the quo warranto action were reinstated
during the pendency of the suit and without prejudice
to the result s thereof. More important ly, he could be
expected to rely on such result s as he was similarly
circumstanced as the plaintiffs therein.
5. It was formerly held that, under the state of the

law in 1983, in quo warranto proceedings against elective
officials on the ground of ineligibility or disloyalty, the
Commission on Elections had exclusive jurisdiction where
the defendant was a member of the Batasang Pambansa
or was a provincial or city official (Sec. 189, 1978 Election
Code) or was a municipal official (Gabatan vs. Commission
on Elections, G.R. No. 58113, May 2, 1983). Where the
defendant was a barangay official, jurisdiction was vested
in the proper inferior court (Regatcho vs. Cleto, et al.,
G.R. No. 61946, Dec. 21, 1983, citing Sec. 191, 1978
Election Code; Sec. 20, B.P. 222, Barangay Election Law;
and Sec. 8, R.A. 3590, Revised Barangay Charter).
However, under the Omnibus Election Code (B.P. 881,
effective Dec. 3, 1985), the foregoing jurisdictional rules
have been modified in the sense that a quo warranto action
against a municipal official is now within the jurisdiction
of the Regional Trial Court, while one against a barangay
official r e ma ins wit h the infer ior court s, wit h the
Commission on Elections retaining its exclusive jurisdiction
826
RUL E 66 QU O WARR ANT O SEC . 12
in quo warranto actions against the other local public

officials above stated (Secs. 253-254).
6. Quo warranto to contest the election of a public
officer differs from that provided for in this Rule in that
the former is an electoral proceeding under the Omnibus
Election Code for the exclusive purpose of impugning the
election of a public officer on the ground of ineligibility
for or disqualification to hold the office. Quo warranto
under this Rule, on the other hand, is a prerogative writ
by which the Government can call upon any person to
show by what title he holds a public office or exercises a
public franchise (Newsman vs. U.S., 238 U.S. 537, 56
L. Ed. 573). Under the Omnibus Election Code, a petition
for quo warranto must be filed within 10 days from the
proclamation of the candidate, whereas quo warranto
under this Rule presupposes that the respondent is already
actually holding the office. Furthermore, the petition
under the said Code may be filed by any registered
candidate for the same office and who, even if the petition
prospers, would not be entitled to that office; whereas, in
quo warranto under this Rule, the petitioner must be the
person entitled to the office and who would assume the
same if his action succeeds. In fine, this Rule refers to
quo warranto in general, while the election law governs
quo warranto against specified elective officials (Falcotelo,
et al. vs. Gali, et al, L-24190, Jan. 8, 1968).
827
RULE 67
EXPROPRIATION
Section 1. The complaint. — The right of eminent

domain shall be exerci sed by the filing of a verified
complaint which shall state with certainty the right
and purpose of exp rop riation, describe the real or
personal property sou ght to be exp rop ri ated, and
join as defendant s all p ersons owning or claiming
to own, or occupying, any part thereof or interest
therein, showing, so far as p racti cab le, the separate
i n t eres t of eac h d ef en d an t . I f the t it le to any
property sought to be exp rop riat ed appears to be
i n the R e p u b l i c o f the P h i l i p p i n e s , a l t h ou g h
occupied by private i nd ivid uals, or if the title is
otherwi se obscu re or doubtful so that the plaintiff
cannot with accuracy or certainty specify who are
the real owners, avermen t to that effect shall be
made in the complaint, (la)
NOTES
1. Eminent domain, which is properly a concept of

political or constitutional law, is the right of the State to
acquire private property for public use upon the payment
of just compensat ion. That right ext ends to private
property partly or ent irely personal and the process of
acquisition is substant ially the same (see Act 204). The
requirement of due process calls for a rule of procedure to
be observed in the exercise of the right of eminent domain
which is more familiarly known in our jurisdiction as
expropriation but, in the American jurisdiction, is often
referred to as condemnation.
Since our Rule on the matter is of American origin,
the term "condemnation" has heretofore also been used.
It was felt, however, that expropriation should be the more
828
RUL E 67 EXPR OPRI ATIO N SEC . 1
appropr iat e t erm for t his procedural rule since con•

demnat io n is also used for civil and commercial law
purposes, aside from its having a negat ive connotation.
Our choice of the present term is more specific t han some
concepts of "eminent domain proceedings" in American law.
At any rate, in Louisiana and in most of the st at es of
the American union, "expropriat ion" is used as the taking
under eminent domain. It has been expressly recognized
t hat a me a n i n g ha s been a t t a c he d to the t er m
" e xp r o p r ia t io n, " impo r t e d from its use in foreign
ju r is pr ud e nc e, which makes i t synonymous with the
exer cise of t he power of e m ine n t doma in, i.e., t he
compulsory t aking from a person, on compensation made,
of his privat e propert y such as for the use of a railroad,
canal or other public works (Brownsville vs. Pavazas, 2
Woods 293, Fed. Cos. No. 2,043).
2. Rule 67 pr imar ily governs the exercise of the right

of e mine n t domain by the St at e act ing t hr o ugh the
nat ional government. Expropriat ion by local government
unit s has heretofore also been aut horized by different
laws, together with other political subdivisions created
and so empowered by law. Present ly, however, such pro•
visions on this power of local political subdivisions have
been consolidated and embodied in the Local Government
Code of 1991 (R.A. 7160), and the pert inent provisions
thereof are quoted and briefly discussed in the notes at
the end of this Rule.
3. Sec. 1 of this Rule requires t hat the complaint
should allege both the right and the purpose of the
e xp r o pr iat io n . Wher e the r ight of the plaint iff to
expropriate is conferred by law, the complaint does not
have to state with certaint y the right of expropriat ion
(MRR Co. vs. Mitchel, 50 Phil. 832).
4. It is t he act ua l filing of the co mp la i nt for
expropriat ion which binds the land, and not a mere notice
829
RUL E 67 REM E DI A L LAW C O M P E N D I U M SEC 2
of the int ent to expropriat e (Republic vs. Baylosis,

96 Phil. 461). However, the owner of the land may still
dispose of said property, despite the filing of the action, as
the grantee would merely be subst ituted in his place and
holds the land subject to the results of the action (Tuason,
Jr. vs. De Asis, 107 Phil. 131).
5. Proceedings for the expropriation or condemnation
of parcels of land situated in different provinces may be
brought in any of said provinces. But the defendant land
owners in each province may require a separate action
to be commenced against them in their respective provinces
to avoid inco nvenience and expense (MRR Co. vs.
Attorney-General, 20 Phil. 523).
Sec. 2. Entry of plaintiff upon depositing value with

authorized government depository. — 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 i f he deposits with t he
a u t h o ri z e d g o v e r n m e n t d e p o s i t o r y a n amou n t
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 deposi t shall be in
money, unless in lieu thereof the court authorizes
the deposit of a certificate of deposit of a govern•
men t bank of the Rep u b l i c of the P h i l i p p i n e s
payable on demand to the authorized government
depository.
If personal property is involved, its value shall
be provisionally ascertain ed 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. (2a)
830
NOTES
1. Under P.D. 42, what was required to be deposited

was an amount equivalent to the assessed value of the
land and the deposit should be made with the Philippine
Nat ional Bank or any of its branches or agencies (see
San Diego vs. Valdellon, L-45673, Nov. 22, 1977).
However, under P.D. 1533, effective June 1, 1978, the
deposit required was changed to ten per cent (10%) of the
amount of compensat ion as provided therein (see Note 2
under Sec. 9 of this Rule). This section now provides for
the amount of the preliminar y deposit, i.e., the assessed
value of the propert y for purposes of taxat ion. Also, mere
notice to the landowner, without prior hearing, suffices
for immediate entry on the land (Haguisan vs. Emilia,
et al., L-40108, Aug. 31, 1984).
2. . The p r e l i m i na r y depo sit UNDE R t his

sect io n c o ns t it u t e s adva nc e p a ym e n t i n the
even t the expropr iat io n proceeds, and st ands as
indemnit y for damages should the proceedings not
succeed (Visayan Refining Co. vs. Camus, 40 Phil. 550).
3. The preliminary deposit is only necessary if the
plaintiff desires entry on the land upon its inst itut ion of
the action; otherwise, it could always wait until the order
of expropriat ion is issued before it enters upon the land.
4. Owners of expropriated lands are entit led to legal
interest on the compensation eventually adjudged from
the date the condemnor takes possession of the land until
the full compensation is paid to them or deposited in court
(Digran vs. Auditor General, L 21593, April 29, 1966;
Valdehueza vs. Republic, L 31032, May 19, 1966; Republic
vs. Tayengco, L-23766, April 29, 1967).
5. Some modifications have been made in this section
to addr ess co nt empor ar y changes and pract ice. For
i n s t a nc e , t hi s sect io n speak s of such aut ho r iz e d
831
government depository at the time, and no longer of the

Philippine Nat ional Bank which is now essent ially a
private banking inst it ut ion.
6. Once the required deposit under t his section
has been duly made, the expropriator is ent itled to a
writ of possession over the propert y as a mat t er of
right, and the issuance of t hat writ becomes ministerial
on the part of the trial court (Biglang-awa, et al. vs.
Bacalla, etc., et al., G.R. Nos. 139927-36, Nov. 22, 2000).
7. On No ve mber 7, 2000 , Co ngr ess enact ed
R.A. 8974, a special law to facilitate the acquisition of right-
of-way, sit e or lo cat io n for nat io na l go ver n me n t
infrastructure projects. These projects refer to all national
government infrastructure, engineering works and service
contracts, including projects undert aken by government-
owned and controlled corporations, all projects under
R.A. 6957, as ame nde d (t he B u i ld - O p e r at e - a nd -
Transfer Law), and other related and necessary activities
regardless of the source of funding. Discrete guidelines
for expropriat ion requirement s and procedure under this
law are provided, with rules and regulat ions for their
implementation as prepared by a committee contemplated
therein (Appendix U).
8. In Republic, et al. vs. Gingoyon, etc., et al.
(G.R. No. 166429, Dec. 19, 2005), the Go ver nme nt
quest io ned t he applic a bil it y of R.A. 8974 in t he
expropriation proceedings it had inst ituted over the airport
facility called NAIA 3 (Ninoy Aquino International Airport
Passenger Terminal 3). This building was constructed by
de fe nda nt PIATCO ( P hilipp ine I nt e r n a t io n a l Air
Terminals Co., Inc.) in the NAIA complex as a national
infrastructure project under R.A. 6957 (Build-Operate-
and-Transfer Law), as amended.
832
RUL E 67 E X PR O PR I AT IO N SEC . 2
I t wa s the G o ve r n m e nt ' s co nt e nt io n t hat the

expropriat ion action should be governed by Rule 67, and
not R.A. 8974 as was later held and followed by the judge
presiding over the expropriat ion court. On review by
cert iorar i, the Supreme Court upheld the Regional Trial
Court's position that, in this part icular case, R.A. 8974
had superseded Rule 67.
P r imar ily, the S upr eme Court noted two crucial

differences in the respective procedures involved under
the s t a t u t e an d the Rule. UNDE R R.A. 8974 , the
Gover nment is required to make an immediat e direct
payme nt to the propert y owner upon the filing of the
complaint to be entit led to a writ of possession; whereas in
Rule 67, the Government has only to make an init ial
deposit wit h an aut hor ized go ver nme nt depo sit ar y.
Furt her, R.A. 8974 provides, as a st andard for init ial
compensat ion, the market value of the property as stated
in the tax declarat ion or the relevant zonal valuat ion,
whereas Rule 67 prescribes t hat the init ial deposit be
merely equivalent to the assessed value of the property
for purposes of taxat ion.
As borne out by the deliberat ions in Congress, the
plain int ent of R.A. 8974 is to supersede the system of
deposit under Rule 67 with the scheme of "immediate
p a yme nt " i n cases invo lving nat io na l go ver n me n t
infrast ructure projects. The appropriate st andard of just
compensat ion is a subst ant ive mat t er well wit hin the
province of the legislature to fix. Such payment is based
on the zonal valuat io n of the land, the value of the
improvement s under the replacement cost method, or if
no such valuat ion is immediately available, the proffered
value of the propert y. Nonet heless, it recognizes the
continued applicabilit y of Rule 67 on procedural aspects.
The Government theorizes that the NAIA 3 facilities
cannot be deemed as the "right of way," "site or location"
833
of a national government infrastructure project within the

coverage of R.A. 8974. The Court explained that the term
"site" does not of itself necessarily mean a piece of land
fixed by definite boundaries. It contemplates land,
buildings, roads and all kinds of constructions adhered to
the soil. The law classifies the NAIA 3 facilities as real
properties just like the soil on which they stand.
9. The holdings in Gingoyon were replicated and

ramified in Republic, etc. vs. Holy Trinity Realty
Developement Corp. (G.R. No. 172410, April 14, 2008).
The Court reit erated t hat the expropriation procedure
under R.A. 8974 specifically governs expropriat ion for
nat io nal go ver nment in fr ast r u ct ur e pr oject s, while
Sec. 19 of the Local Government Code governs the exercise
of the power of eminent domain by local government units
through an enabling ordinance. Also, if expropriation in
engaged in by the National Government for purposes other
than national infrastructure projects, the assessed value
st andard and the deposit mode prescribed in Rule 67
continues to apply.
If the amount deposited under either procedure bears
interest, the landowner is ent it led to the same, since it
constitutes the civil fruits or accessions of the principal
object, t hat is, the deposit in favor of the landowner in
the expropriat ion account. Where the amount deposited
pert ains to separate propert ies of different landowner
which were expropriat ed in the same proceeding, then
each landowner is ent itled to the proportionate interest
on the deposited amount pertaining to his own property
and its commensurate value.
Sec. 3. Defenses and objections. — If a defendant

has no objection or d efen se 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
834
in whi c h he claims to be i nt erest ed, within the time

st at e d in the su m mo n s . Th ereafter, he shall be
ent it led to notice of all p roceedin gs affecting the
same.
If a d efen d an t has any objection to the filing or
the a ll egat i on s in the comp laint, or any objection
or d efen se to the t akin g of his property, he shall
serv e hi s a n s w e r w i t h i n the tim e s t at e d i n the
su m mon s. The an swe r shall speci fically d esi gn at e
or identify the property in wh ich he clai ms to have
a n i n t e re s t , st at e the n at u r e and ext en t o f the
i nt erest clai med , and adduce all his objections and
d e f e n s e s t o the t a k i n g o f hi s p r o p e rt y . N o
cou n t erc lai m, cross- clai m or third-party comp lain t
shall be alleged or allowed in the an swe r or any
su b seq u en t pleading.
A d efen d an t wai ves all d efen ses and objections
not so a l l e g e d but the cou rt, in the i n t e re s t of
j u sti ce, may permit amen d men t s to the an swer to
be made not later than ten (10) days from the filing
thereof. H owever, at the trial of the issue of just
c o m p e n s a t i o n , w h e t h e r or not a d e f e n d a n t ha s
p revi ou sly app eared or an swered, he may p resent
evi d en ce as to the amount of the comp en sat i on to
be paid for his p roperty, and he may share in the
d i st ri but ion of the award, (n)
NOTES
1. This amended section is patterned mainly after

Rule 71A (e) of the U.S. Federal Rules of Civil Procedure
(see 28 U.S.C.A. 575).
2. The former procedure, which was likewise taken
from the practice in some American states, required a
motion to dismiss, in lieu of an answer, as the prescribed
responsive pleading to a complaint for expropriation.
835
This was somet imes a bit confusing as the previous

holdings under t hat former provision also allowed the
filing of another motion to dismiss, as that is understood
in Rule 16, to raise additionally the preliminary objections
authorized by t hat Rule.
The answer which is now required by this new section
also observes the omnibus motion rule, but permit s
amendment s to be made thereto within 10 days from its
filing. Furt hermore, failure to file t hat answer does not
produce all the disast rous consequences of default in
ordinary civil actions since the defendant may nonetheless
appear at the trial to present evidence as to the just
compensat ion he claims and, t hereaft er, share in the
judicial award.
In the interest of expediency, however, no counter•
claim, cross-claim or third-part y complaint is allowed to
be incorporated in the answer or to be filed in a subsequent
pleading in the case.
Sec. 4. Order of expropriation. — If the objections

to and the defenses again st the right of the plaintiff
to exp rop ri ate the property are overruled or when
no party appears to defend as required by this Rule,
the Cou rt may i ssu e an ord er of exp rop ri at i o n
declaring that the plaintiff has a lawful right to take
the p rop ert y sou gh t to be exp rop ri a t ed , for the
public use or purpose described in the complaint,
upo n the p a y m e n t of jus t c o m p e n s a t i o n to be
d e t e rm i n e d as of the date of the t aki n g of the
property or the filing of the complaint, whichever
came first.
A final order sustaining the right to expropriate
the p ro p e rt y ma y b e a p p e a l e d b y an y p art y
aggri eved thereby. Such appeal, h owever, shall
not p revent the court from d et ermi n in g the just
comp en sat ion to be paid.
836
Aft e r the r e n d i t i o n o f su c h a n ord e r , the

p l a i n t i f f sh al l no t b e p e r m i t t e d t o d i s m i s s o r
d i s co n t i n u e the p ro ceed i n g except on such t erms
as the cou rt d eem s just and equitable. (4a)
NOTES
1. The order of expropriat ion forecloses any further

objections to the right to expropriate, including the public
purpose of the same. The only substant ial issue t hereaft er
is the mat t er of just compensat ion.
2. Being det erminat ive of the question of the right
to expropriat e, such order of condemnation is a final order
on t hat issue and is appealable (see Uriarte us. Teodoro,
86 Phil. 196).
3. The special civil action of expropriat ion is, as a
consequence of the foregoing provisions of Sec. 4, one
wherein mult iple appeals are permitt ed. An appeal may
be t a k e n from the a fo r esa id or de r a u t ho r i z i n g
expropriat ion and, thereaft er, another appeal lies against
the judgment on the just compensation to be paid (see
Secs. 10 and 11). The significance of this fact is that, just
as in special proceedings, the reglementary period to appeal
shall be 30 days and a record on appeal shall be required
for each of the permissible appeals.
Sec. 5. Ascertainment of compensation. — Upon

the ren d i t i o n of the order of exp ro p ri at i on , the
Cou rt sh a l l a p p o i n t no t mor e t h a n t h re e (3 )
c o m p e t e n t an d d i s i n t e r e s t e d p e r s o n s a s com •
mi ssi on ers to ascertain and report to the court the
just co m p e n s at i o n for the p ropert y sou ght to be
taken. The order of ap point ment shall d esi gn at e
the time and place of the first session of the h eari n g
to be held by the commi ssi on ers and specify the time
within whi ch their report should be filed with the
cou rt.
837
Cop i e s of the ord e r shal l be serve d on the

parties. Objections to the ap poin t ment of any of
the co m mi s si on e r s shall be filed wit h the court
within ten (10) days from service, and the same shall
be re so lved wi t h i n thirty (30) days after all the
com mi ssi on e rs shall have recei ved copies of the
objections. (6a)
NOTES
1. As a general proposition, the Supreme Court has

defined just compensat ion as the full and fair equivalent
of the property taken from its owner by the expropriator.
The measure is not the taker's gain but the owner's loss.
The word "just" is used to convey t he idea t hat the
equivalent to be rendered for the property to be taken
shall be real, substant ial, full and ample.
The just compensation for the condemned property is
generally the market value. Such amount is not limited
to the assessed value of the property or to the schedule of
mar ket values det er mined by the provincial or city
appraisal committee. However, these values may serve
as factors to be considered in the judicial valuation of the
propert y (National Power Corp. vs. Manubay Agro-
Industrial Dev. Corp., G.R. No. 150936, Aug. 18, 2004,
citing cases;.
2. The appoint ment of commissioners is one of the
steps involved in expropriat ion proceedings. Another
inst ance where the appo int ment of commissioners is
required is in judicial part it ion where the parties cannot
agree (Sec. 3, Rule 69). This is different from trial by
commissioners under Rule 32 wherein the appoint ment of
commissioners is discretionary on the court and the power
is exercised only under the circumstances enumerat ed
therein.
838
RUL E 67 EXPR OPRI ATIO N SECS . 6 -
Sec. 6. Proceedings by commissioners. — Before

e n t e ri n g u p o n the p erf o rm an c e o f t h ei r d u t i e s ,
the c o m m i s s i o n e r s sh all tak e and s u b s c ri b e a n
oath that they will faithfully perform thei r d u ti es
as com m i ss i on e rs, wh i c h oath shall be filed in court
with the ot her p roceed i n gs in the case. Evid en ce
ma y b e i n t r o d u c e d b y e i t h e r p art y b efor e the
co m mi s s i on e r s wh o are au t h ori zed to ad mi n i st er
oat h s on h ea ri n g s before t h em, and the com mi s •
si on e r s sh all, u n le s s the p art i e s c o n s e n t t o the
cont rary, after due notice to the parti es to att en d,
vi e w an d e x a m i n e the p r o p e r t y s o u g h t t o b e
e x p r o p r i a t e d an d it s s u r r o u n d i n g s , an d ma y
measu re the same, after wh i ch either party may, by
h i m s e l f o r c o u n s e l , argu e the cas e . The com •
mi ssi on e rs shall asses s the con seq u en t i al d amage s
to the p rop ert y not t aken and d ed u c t from suc h
con seq u en t i al d amage s the con seq u en t i al benefits
to be deri ved by the own er from the public use or
p u rp ose of the property taken, the op erat ion of its
fran chise by the corporation or the carryi n g on of
the b u si n es s of the corp orat ion or p erson taki n g
the p roperty. But in no case shall the con seq u en t i al
benefits assessed exceed the con sequ en ti al d amages
as s e s sed , or the own e r be d ep rived of the actual
value of his p ropert y so taken. (6a)
Sec. 7. Report by commissioners and judgment

thereupon. — The court may order the c ommi ssi on e rs
to report wh e n any particular portion of the real
estate shall have been passed upon by them, and
may render j u d gmen t upon such partial report, and
direct the commi ssi on er to proceed with their work
as to su b seq u en t portions of the property sought
to be exp rop ri ated, and may from time to time so
deal with such property. The commi ssi on e rs shall
make a full and accurate report to the court of all
839
RUL E 67 REM EDIAL LAW COMPENDIU M SECS. 8-9
their p roceed in gs, and such proceedings shall not

be effectual until the court shall have accepted their
report and rendered judgment in accord ance with
t h ei r r e c o m m e n d a t i o n s . Exc ep t a s o t h e rw i s e
expressly ordered by the court, such report shall
be filed within sixty (60) days from the date the
commi ssion ers 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
court shall serve copi es t h ereof 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. (7a)
Sec. 8. Action upon commissioner's report. — Upon

the expiration of the period oft en (10) days referred
to in the p re c e d i n g sect i on , or eve n before the
expiration of such period but after all the interested
parties have filed their objections to the report or
their st at ement of agreement therewit h, the court
may, after hearing, accept the report and render
j u d gmen t in accord an ce th erewith ; or, for cause
s h o w n , i t ma y r e c o m m i t the sam e t o the
commi ssion ers 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
j u d g m e n t a s sh al l s e c u r e t o the p l a i n t i f f the
property essen ti al to the exerci se of his right of
e x p r o p r i a t i o n , an d the d e f e n d a n t ju s t com •
pensation for the property so taken. (8a)
Sec. 9. Uncertain ownership; conflicting claims.—

If the ownership of the property taken is uncertain,
or there are con flicting claims to any part thereof,
the court may order any sum or sums awarded as
comp en sat ion for the property to be paid to the
840
RUL E 67 EXPR OPRI ATIO N SE C S . 8- 9
court for the benefit of the p erson ad judged in the

same p ro c e e d i n g to be ent i t led t h eret o. But the
j u d gmen t shall requi re the p aymen t of the sum or
sums award ed to either the d efend ant or the court
before the plaintiff can enter upon the property, or
retain i t for the public use or purpose i f entry has
already been made. (9a)
NOTES
1. The primar y purpose of the proceedings by the

commissioners is to determine the just compensat ion to be
paid to the landowner. The general rule in arriving at
such just compensat ion is the value of the property as of
the date of its taking or the filing of the complaint (Sec. 4)
plus consequent ial damages minus consequent ial benefits,
provided such assessed benefits do not exceed the assessed
damages (Sec. 6).
2. The value of the property means the "market value
thereof, t hat is, the price which it will command where
it is offered for sale by one who desires, but is not
obliged to sell, and is bought by one under no necessity
of having it" (Manila Railroad Co. vs. Caligsihan, 40
Phil. 326). The assessed value is only prima facie evidence
of the actual value of the property if the assessment is
based on the sworn st atement of the owner (Republic vs.
Urtula, 110 Phil. 262; cf. Mun. of Daet vs. CA, et al., L-
35861, Oct. 18, 1979), while sent iment al value is not
considered (Republic vs. Lara, 96 Phil. 170). Thereafter,
under P.D. 76 (Dec. 6, 1972), it was provided t hat "(f)or
purposes of just compensat ion in cases of private property
acquired by the government for public use, the basis shall
be the current and fair market value declared by the owner
or administ rator, or such market value as determined by
the assessor, whichever is lower" (see Sec. 92, P.D. 464,
as amended by P.D. 794, 1224 and 1259; NHA vs. Reyes,
et al., L-49439, June 29, 1983). The last issuance on
841
RUL E 67 REM E DI A L LAW COMPENDIU M SECS . 8-9
this mat t er was P.D. 1533 which provided t hat "the

compensation to be paid shall not exceed the value declared
by the owner or administ rator or any one having legal
interest in the property or determined by the assessor,
pur suant to the Real Propert y Tax Code, whichever
value is lower, prior to the recommendat ion or decision
of the appropr iat e Gover n ment office to acquire the
property" (see Republic vs. Santos, et al., G.R. No. 57524,
Jan. 8, 1986).
However, in Export Processing Zone Authority vs.
Dulay, et al. (G.R. No. 59603, April 29, 1987), the Supreme
Court declared as invalid and unconst itut ional P.D. 1533
and all its predecessor and related decrees, i.e., P.D. 76,
464, 794, 1224, 1259, 1669 and 1670, all of which adopted
and laid down the common formula t hat the basis of just
compensation shall be the fair market value declared by
the owner of the property or the market value determined
by the assessor, whichever is lower. It held t hat said
decrees const it ut e an impermissible encroachment on
judicial pr erogat ives since the det er minat io n of just
co mpe nsat io n is r eser ve d for the court s by the
Constitution. Said decrees would also constitute denial
of due process and equal protect ion to the landowner
who is denied the right to question the assessor's deter•
mination, aside from prevent ing such determinat ion by
commissioners. The r et ur n to the former procedure
outlined in Rule 67 was decreed and the doctrine in NHA
vs. Reyes, supra, was abandoned (see Manotok, et al. vs.
NHA, et al, G.R. No. 55166 and Tiongson, et al. vs. NHA,
et al, G.R. No. 55167, jointly decided on May 21, 1987;
Ignacio vs. Guerrero, et al, L-49088, May 29, 1987;
Sumulong, et al. vs. Guerrero, et al, L-48685, Sept. 30,
1987; Leyva vs. IAC, et al, G.R. No. 70959, Oct. 26, 1987;
NHA vs. Zaballero, et al, L-49291-92, Oct. 29, 1987).
Furt hermore, a judgment in expropriation proceed•
ings should provide for the payment of legal interest as a
matter of law from the time the Government takes over
842
RUL E 67 E X PR O PR I AT IO N S E C S . 8- 9
the land unt il it pays the owner thereof. If the com•

pensat ion is not paid when the property is t aken, but is
postponed to a later date, the interest awarded is actually
part of the just compensat ion which takes into account
such delay (Benguet Consolidated, Inc. vs. Republic,
G.R. No. 71412, Aug. 15, 1986).
3. The nat ure and the value of the land at the time
it was t aken by the Government should be the basis of
the price to be paid to the owner if the taking of possession
t her eo f wa s mad e before the i n s t it u t io n of the
expropr iat io n proceedings. The value at the time of
t he filing of the co mp la int is d e t e r m i n a t iv e i f t he
t aking of possession coincides with or is subsequent to the
co mmencement of the proceedings, with int erest from
its t aking and wit h at t or ney' s fees to be det er mined
by the trial court (National Power Corp. vs. CA, et al.,
G.R. No. 56378, June 22, 1984, and cases cited therein).
4. The consequent ial benefits t hat shall be deducted
refers to the actual benefits derived by the owner on the
remaining portion of his land which are the direct and
proximat e result s of the improvement s consequent to the
expropr iat io n, and not the general benefit s which he
receives in common with the communit y (29 C.J.S. 1063;
Republic vs. Vda. de Mortera, et al., 94 Phil. 1042
[Unrep.J).
5. The judgment rendered, requiring the payment
of the award det ermined as just compensat ion for the
condemned propert y and as a condition precedent for the
transfer of title to the Government, cannot be realized upon
execut ion, as the leg is lat ur e must first appropr iat e
the amount over and above the provisional deposit (Comm.
of Public Highways, et al. vs. San Diego, et al., L-30098,
Feb. 18, 1970).
6. The trial court has the jurisdiction to determine,
in the same expropriat ion proceedings, conflicting claims
843
RULE 67 REM E DI A L LAW C O M P E N D I U M SEC. 10-11
of ownership over the property involved and to declare

the lawful owner thereof (Republic vs. CFI of Pampanga,
et al., L-27006, June 30, 1970).
Sec. 10. Rights of plaintiff after judgment and

payment. — Upon p ayment by the plaintiff to the
d e f e n d a n t o f the c o m p e n s a t i o n fixe d b y the
j u d g m en t , wit h legal i n t eres t t h e re o n from the
taking of the p ossession 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
en t e r u p o n the p ro p e rt y e x p r o p r i a t e d and t o
approp riate it for the public use or purpose defined
in the j u d gm en t , or to retain i t should he have
t ake n i m m e d i a t e p o s s e s s i o n t h e reo f UNDER the
provisions of section 2 hereof. If the defendant and
his cou n sel absent t h emselv es from the court, or
decline to receive the amount tendered, the same
shall be ordered to be deposited in court and such
d e p o s i t sh al l h av e the sam e ef fec t a s act u a l
p ayment th ereof to the d efen d an t or the person
ultimately adjudged entitled thereto. (10a)
Sec. 11. Entry not delayed by appeal; effect of

reversal. — The right of the plaintiff to enter upon
the property of the defendant and approp riate the
same for public use or purpose shall not be delayed
by an ap p ea l from the j u d g m e n t . Bu t i f the
app ellat e court d et ermi n e s that plaintiff has no
right of exp rop riation, judgment shall be rendered
ord e ri n g the Regi on al Trial Court to
fort h wi th e nforce the re st o rat i on to the d efen d ant
of the possessi on of the property, and to determine
the damages which the defendant sustained and may
recover by reason of the possession taken by the
plaintiff. ( l l )
a
844
RUL E 67 EXPR OPRI ATIO N SE C S . 1 2 -14
Sec. 12. Costs, by whom paid. — The fees of the

com mi ssi on e r s shall be taxed as a part of the cost s
of the p roceed i n gs. All costs, excep t those of rival
clai man t s li t i gatin g their clai ms, shall be paid by
the plaintiff, u n les s an appeal is taken by the owner
of the p rop ert y and the j u d gmen t i s affirmed, in
wh ic h even t the costs of the appeal shall be paid by
the own er. (12a)
Sec. 13. Recording judgment, and its effect. — The

j u d g m e n t e n t e re d i n exp rop ri at i o n p ro c e e d i n g s
shall state definitely, by an ad equ at e d escri pt ion,
the particular property or interest exp rop riated, and
the natu re of the pub lic use or pu rpose for whi ch i t
is exp rop ri at ed . When real estate is exp rop ri at ed ,
a certifi ed copy of such j u d gmen t shall be record ed
in the regi st ry of deed s of the place in wh i ch the
property is si tu at ed, and its effect shall be to vest
in the plaintiff the title to the real estate so described
for such publi c use or purp ose. (13a)
Sec. 14. Power of guardian in such proceedings. —

The gu ard i an or gu ard ian ad litem of a minor or of
a p erson judicially declared to be in comp etent may,
with the ap p roval of the court first had, do and
perform on behalf of his ward any act, matter, or
t hi n g resp ect i n g the e xp rop ri at ion for public use
or p u rp ose of propert y b elongin g to such minor or
person judicially d eclared to be i n comp et ent, which
such minor or person d eclared to be i n comp et ent
could do in such p roceed in gs if he were of age or
comp et ent . (14a)
NOTES
1. Under Sec. 11, the right of entry can immediately

be availed of by the plaintiff despite the pendency of any
appeal t hat may be taken from the judgment ; but, under
845
RULE 67 REM EDIAL LAW CO M PEN DI U M SEC. 12-14
Sec. 10, in order that it can exercise such right of entry,

the plaintiff must first pay to the landowner or deposit
with the clerk of court the just compensation determined
in the judgment, (see Federated Realty Corp. vs. CA, et
al., G.R. No. 127967, Dec. 14, 2005)
2. In the event the judgment of expropriat ion is
reversed by the appellate court and the case is remanded
to the lower court with the mandate to determine the
damages caused to the landowner, such landowner has
the option of proving the damages eit her in the same
expropriation case or in a separate action inst ituted for
that purpose (MWC vs. De los Angeles, 55 Phil. 776).
The judgment denying the right of expropriation is not
res judicata on the issue of damages arising from such
illegal expropriation (Republic vs. Baylosis, 109 Phil. 580).
3. Where the expropriat ion judgment is final and
execut or y, the no n-payme nt by the expr o pr iat ing
authorit y of just compensation does not entitle the private
landowners to recover possession of their expropriated lots.
To argue for the ret urn of their property would ignore the
fact that their right against the expropriating authority
is different from that of an unpaid seller in ordinary sales,
to which the remedy of rescission might perhaps apply.
Being an in rem proceeding, condemnation acts against
the property.
However, although the right to expropriate and use
the land taken is complete at the time of entry, title to the
property remains in the owner until payment is actually
made or deposited in court. Further more, the landowner
is entit led to interest computed from the time that the
property is actually taken to the time when compensation
is act ually paid (Reyes, et al. vs. National Housing
Authority, G.R. No. 147511, Jan. 20, 2003).
4. Nevertheless while the prevailing doctrine is that
the non-payment of just compensation does not entitle the
846
RUL E 67 EXPR OPRI ATIO N SEC . 1 2 -14
land o wn er to recover possession of the ex p ropr iated lot,

in c a s e s w h e r e th e g o v e r n m e n t failed to pay ju s t
co mp en satio n within 5 y ear s from the finality of jud g men t
in the expr op riation proceeding, the owner shall have the
rig ht to recov er possession of his pro per ty. This is in
conson ance with the principle th at the go v ern men t cannot
keep the prop er ty and dishonor the judg ment (Republic
vs. Lim, G.R. No. 161656, June 29, 2005).
Here, the expr o priated property had been used as a
school site for five year s while n on- p ay me nt was effected
thr o u g h legal m a n eu v er s of the local g o v er n men t unit
w h i ch e x p r o p r o p r i a t e d the p r o p e r t y . U N D E R su ch
cir cu mstances, it has been held in Municipality ofMakati
vs. CA, et al. (G.R. Nos. 89898-99, Oct. 1, 1990) th at the
claimant could have availed of the remedy of man d a mu s
to compel the en act men t of the necessary appr op riation
o r d in a n c e an d th e d i s b u r s e m e n t of mu n ici p al fu n d s
therefor (Yujuico vs. Atienza, Jr., et al., G.R. No. 164282,
Oct. 12, 2005).
5. To r e p e a t , th e co ncept of ju st c o m p e n s a ti o n
embraces not only the correct deter min ation of the amo un t
to be paid to the owner of the land, but also the pay men t
thereof within a reaso nable time from its taking. Without
prompt pay ment, compensation cannot be considered "just"
since the owner has been immediately deprived of his land
while being made to wait for a long period before receiving
the p ay men t necessary to cope with his loss. To allow
the tak in g of the lando wn er's properties and to leave them
empty-h and ed while Govern ment withholds compensation
is und o ubtedly oppressive (Apo Fruits Corp. vs. CA, et al.,
G.R. No. 164195, Feb. 6, 2007 Barangay Sindalan, etc.
vs. CA, et al., G.R. No. 150640 Mar. 22, 2007).
Ju st co mp ensation is intend ed to be the full and fair
eq uivalent of the property expropriated. The measure is
not the tak er' 8 gain but the owner's loss. The compensation
must be fair not only to the owner but also to the taker,
847
RULE 67 REM EDIAL LAW CO M P END IU M SEC. 12-14
by avoiding under valuat ion against the former and

overvaluation against the latter consequent to delay in
the payment of the award. The amount is to be ascertained
as of the time of the taking which usually coincides with
the commencement of the expropriat ion proceedings.
Where the inst itution of the action precedes entry into
the property, the just compensation is to be ascertained as
of the time of the filing of the complaint (National Power
Corp. vs. De la Cruz, et al., G.R. No. 156093, Feb. 2, 2007).
6. As noted at the outset, the Local Government Code
(R.A. 7160) now regulates expropriat ion by the local
political subdivisions and provides as follows:
"Sec. 19. Eminent Domain. - A local government
unit may, t hrough its chief executive and acting
through an ordinance, exercise the power of eminent
domain for public use, or purpose, or welfare for the
benefit of the poor and the landless, upon payment of
just compensation, pursuant to the provisions of the
Constitution and pert inent laws. Provided, however,
That the power of eminent domain may not be
exercised unless a valid and definite offer has been
previously made to the owner and such offer was not
accepted; Provided, further, That the local government
may immediately take possession of the property upon
the filing of the expropriation proceedings and upon
making a deposit, with the proper court of at least
fifteen percent (15%) of the fair market value at the
time of the taking of the property."
7. Note the variance in certain part iculars between

the foregoing special provisions on local governments and
those in Rule 67, such as the specific purposes, the
initiation of proceedings, the preliminary deposit, and the
ascertainment of compensation. In The City of Cebu vs.
Dedamo, et al. (G.R. No. 142971, May 7, 2002), which
involved a complaint for eminent domain filed by petitioner
in 1993, the Supreme Court ruled that the issue of just
848
RUL E 67 EXPR OPRI ATIO N SEC . 1 2 -14
compensat ion t herein shall be determined based on the

fair market value at the time of the taking of the propert y,
pur suant to Sec. 19 of R.A. 7160. It pointed out t hat
Sec. 4, Rule 67, which provided t hat just compensat ion
shall be determined at the time of the filing of the complaint
for expropriat ion, cannot prevail over R.A. 7160 which is
a subst ant ive law.
Parent het ically, the Supreme Court was obviously
referring to Rule 67 of the 1964 Rules of Court. As revised
in 1997, Sec. 4 of said Rule now provides t hat the payment
of just compensat ion is to be determined as of the date of
the taking of the property or the filing of the complaint,
whichever came first.
8. See also the pert inent discussion in Jesus is Lord
Christian School Foundation, Inc. vs. City of Pasig (G.R.
No. 152230, Aug. 9, 2005).
849
RULE 68
FORECLOSURE OF
REAL ESTATE MORTGAGE
Section 1. Complaint in action for foreclosure. —

In an action for the foreclosu re of a mortgage or
other encu mb ran ce upon real estate, the complaint
shall set forth the date and due execu ti on of the
mortgage; its assign ment s, if any; the names and
resid ences of the mortgagor and the mortgagee; a
description of the mortgaged property; a statement
of the dat e of the not e or ot h e r d oc u m e n t a r y
evidence of the obligation secured by the mortgage,
the amount claimed to be unpaid thereon; and the
n ame s and re s i d e n c e s of all p erson s h avi n g or
claiming an interest in the property su bordinate in
right to that of the holder of the mortgage, all of
whom shall be made defend ants in the actions, (la)
NOTES
1. This section is a virtual copy of the former Sec. 1

of this Rule.
2. A foreclosure action must be brought in the Court
of First Instance of the province where the land or any
part thereof is situated. If a mortgage contract covers
several dist inct parcels of land sit uat ed in different
provinces, the action may be brought in the Court of First
Instance of any of the provinces and the judgment will be
enforceable against any of the parcels of land involved
(Monte de Piedad vs. Rodrigo, 56 Phil. 301; El Hogar
Filipino vs. Seva, 57 Phil. 537; B.P.I, vs. Green, 57 Phil.
712). Now, for Court of First Instance, read Regional
Trial Court; and, for province, read region, but subject to
the territorial allocation made by the Supreme Court of
850
RUL E 68 FORE CLO SUR E O F SEC . 1
REA L E ST AT E M O RT AG E
the administ rat ive area for the exercise of jurisdict ion of
t hat part icular court.
3. A mortgagee may bring a personal action for the
amount due, instead of a foreclosure suit, in which case
he will be deemed to have waived his right to proceed
against the propert y in a foreclosure proceeding (Movido
vs. RFC, et al., 105 Phil. 886).
4. An unregist ered real estate mortgage may be fore•
closed (Mobil-Oil Phil., Inc. vs. Tiocares, et al., L-26371,
Sept. 30, 1969).
5. The cause of act ion in a foreclo sure suit is
generally the non-payment of the mortgage loan, but it
may be on other grounds which under the contract warrant
the foreclosure, such as the violation of some of the other
conditions t herein.
6. Foreclo sure may be made judicially or ext ra•
judicially. Extrajudicial foreclosure is proper only when
so provided in the contracts in accordance with Act 3135,
as amended by Act 4118. See A.M. No. 99-10-05-0 for
the present procedure therefor (Appendix T). Rule 68,
on the other hand, governs judicial foreclosure.
7. In a foreclosure action, the following must be joined
as defendant s:
(a) The persons obligated to pay the mortgage debt;
(b) The persons who own, occupy or control the
mortgaged premises or any part thereof (Soriano vs.
Enriquez, 24 Phil. 584);
(c) The transferee or grantee of the property (De
Villa vs. Fabricante, 105 Phil. 672); and
(d) The second mortgagee or junior encumbrancer,
or any person claiming a right or interest in the property
subordinat e to the mortgage sought to be foreclosed;
but if the action is by the junior encumbrancer, the first
851
REM EDIAL LAW CO M P END IU M SEC. 2
mortgagee may also be joined as defendant (De la Riva

vs. Reynoso, 61 Phil. 734).
8. If the junior encumbrancer is not impleaded in
the suit, there will remain with him the unforeclosed
right of redemption which he can enforce against the first
mortgagee or the purchaser at the foreclosure sale, as he
is a redempt ioner under Sec. 29(b) (now, Sec. 27[bJ),
Rule 39 which has suppletory effect to Rule 68 pursuant
to Sec. 3(a), Rule 1. Consequent ly, by including the
junior mortgagee in the suit, the relief sought against
him is the foreclosure of his right of redemption (see Top
Rate International Service, Inc. vs. IAC, et al., G.R.
Nos. 67496 and 68257, July 7, 1986, cited in Note 6
under Sec. 7, Rule 57). Of course, if he is impleaded as a
defendent and the foreclosure suit prospers, he is entitled
to be paid off from the residue after the first mortgagee
shall have been satisfied (Sec. 4).
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 mort gage debt or obli gation, 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 the
judgment, and that in default of such payment the
property shall be sold at public auction to satisfy
the judgment. (2a)
NOTES
1. This section reproduces the former Sec. 2 of this

Rule but with the clarification that the judgment obligee
852
REA L E S T AT E M O RT AG E
shall be ordered to pay the judgment account within a

period of not less t han 90 days nor more than 120 days
from the entry of the judgment. The exact period must,
of course, be specified by the court in its judgment. The
former provision which required that such payment should
be made "within a period of not less t han ninety (90) days
from the date of the service of such order" spawned a
number of controversies because of its obvious ambiguit y.
2. . In view of t he pr o c e d u r a l st age s and
the adjudicative actions required to be taken by the trial
court in this special civil action, multiple appeals may be
taken in the case. Thus, the judgment of foreclosure
provided in this section, being a final adjudication of
the issues involved t herein, is appealable. The order
confirming the foreclosure sale, contemplat ed in Sec. 3, is
also a final disposit ion wit h respect to the issue of the
regularit y and validity of such sale and may likewise be
challenged on appeal. The deficiency judgment under
Sec. 6 is furt hermore a disposition on the merits of the
correctness of such award and may properly be the
subject of appeal. As hereinbefore stated, the significance
of such observation is that, by reason of the multiplicit y
of appeals available in this case, the reglement ary period
for appeal in any of the three instances stated shall be 30
days, and a record on appeal shall be required.
3. In extrajudicial foreclosure, the mortgagor has the

right to redeem the property within one year from the
r egist r at io n of the deed of sale (Reyes vs. Noblejas, L-
23691, Nov. 25, 1967). The date of the sale ment ioned in
Sec. 6 of Act 3135, as amended, should be construed to mean
the date of registrat ion of the certificate of sale in the
regist ry of deeds (Santos vs. Register of Deeds of Manila, L-
26752, Mar. 19, 1971; Reyes vs. Tolentino, et al., L
29142, Nov. 29, 1971).
In judicial foreclosure, t here is no such right of
redemption, except in the case of mortgages with banking
853
institutions hereinafter to be discussed, but the mortgagor

has the "equity of redemption" which he can exercise at
any time after service of the judgment of foreclosure and
within the period provided herein, and even thereafter,
provided he does so before the foreclosure sale is confirmed
by the court (Anderson vs. Reyes, 54 Phil. 944). Upon
the confirmation of the foreclosure sale, title vests in the
purchaser, the confirmation retroacts to the date of the
sale, and the rights of the mortgagee and persons holding
under him are cut off, including the equity of redemption.
The purchaser cannot be considered as the successor-in-
interest of the mortgagor, hence he is not bound by the
t erms of the judgme nt under which the foreclosure
sale was authorized (Lonzame vs. Amores, et al., G.R.
No. 53620, Jan. 31, 1985).
4. The provision of Sec. 2 grant ing the period for
payment by the mort gagor is a mandat or y directive
and constitutes a substantive right of the mortgagor. It
cannot be omitted in judicial foreclosure (Ponce de Leon
vs. Ibanes, 95 Phil. 119; Herrera, et al. vs. Arellano,
et al., 97 Phil. 776); nor can the part ies by agreement
change the procedure outlined by this Rule (Piano vs.
Cayanong, L-18603, Feb. 28, 1963). Said period is
suspended by an appeal taken from the judgment and is
not revived until said judgment is affirmed by the appellate
court and the case is returned to the trial court (Blossom
& Co. vs. Manila Gas Corp., 47 Phil. 670).
Sec. 3. Sale of mortgaged property; effect. — When

the d e fen d an t , after bein g d i re ct ed to do so as
provided in the next p receding section, fails to pay
the amou n t of the j u d gme n t wi t h i n the period
speci fi ed t h erei n , the cou rt, upon moti on, shall
order the property to be sold in the manner and
UNDER the p r o v i s i o n s o f Rul e 3 9 an d oth e r
regu lati on s govern i n g sales of real estate under
execution. Such sale shall not affect the rights of
854
REA L E S T AT E M O R T AG E
p e r s o n s h o l d i n g p ri o r e n c u m b r a n c e s up o n the
property or a part thereof, and whe n confi rmed by
an order of the court, also upon moti on , i t shall
op erat e to di vest the rights in the property of all
the p art i es to the action and to vest their rights in
the p u rchaser, subject to such rights of redempt ion
as may be allowed by law.
Upon the finality of the order of con fi rmat ion
or upon the expi rat ion of the period of red emp ti on
whe n al lowed by law, the p u rch aser at the au cti on
sale or last red emp t i on er, if any, shall be ent it led
to the p o s s e s s i o n of the p ropert y u n les s a third
party i s act ually h old in g the same adversely to the
j u d g m e n t ob li g o r . The sai d p u rc h a s e r o r las t
red e mp t i on e r may secu re a writ of p ossessi on, upon
m o t i o n , fro m the Cou rt w h i c h o rd e r e d the
foreclosu re. (3a)
NOTES
1. To the first paragraph of this amended section,

which is t he same as t hat appear ing in the former
provision, has been added a second paragraph regulat ing
the issuance of a writ of possession. As a general rule,
the purchaser is entit led to possession of the property sold
to him upon the finality of the order of confirmation of
the sale; and the same is true with respect to the last
r ede mpt io ner , upon the exp ir at io n of the per iod of
redempt ion. The second paragraph, however, provides
for exceptions as evolved in our jurisprudence.
2. Where, after extrajudicial foreclosure of a real
estate mortgage, the mortgagee purchased the same at
the foreclosure sale, he shall be ent it led to a writ of
possession despite the fact that the premises are in the
possession of a lessee whose lease has not yet terminated,
unless the lease has been previously regist ered in the
Registry of Property or the mortgagee had prior actual
855
RULE 68 REM EDIAL LAW C O M P END IU M SEC. 3
knowledge of the existence of the lease. Under Sec. 7

of Act 3135, as amended, the petit ion for such writ of
possession shall be made under oath and filed as an
ex parte motion in the regist rat io n or cadast ral pro•
ceedings of the property (Ibasco, et al. vs. Caguioa, et al.,
G.R. No. 62619, Aug. 19, 1986).
3. Thus, in Barican, et al. vs. IAC, et al. (G.R. No.
79906, June 20, 1988), the Supreme Court reiterated the
well-settled rule that the purchaser in a foreclosure sale
is entitled to a writ of possession and that, upon an ex
parte motion of the purchaser, it is ministerial upon the
court to issue a writ of possession in his favor. He is not
required to bring a separate action for possession after
the redemption period has expired. However, where the
parties in possession claim ownership thereof and, it may
be added, if there is some plausibilit y in their claim, that
issue must first be vent ilated in a proper hearing of the
merits thereof.
4. If the debt is not paid within the period pro•

vided for in Sec. 2, it is the ministerial duty of the court to
order the foreclosure sale of the property. A motion for
such order of sale is non-lit igable and may be made
ex parte (Gov't of P.I. vs. De las Cajigas, 55 Phil. 667).
However, the motion for the confirmat ion of the sale
r equir es a hear ing to grant an opportunit y to the
mortgagor to show cause why the sale should not be
confirmed (Tiglao vs. Botones, 90 Phil. 275), as by proof
of irregularities therein or of gross inadequacy of the price.
Lack of notice vitiates the confirmation of the sale. Where
the property was sold to a third person before confirmation
of the foreclosure sale, said vendee should be given notice
and said sale does not prevent the court from granting
the mortgagor a period within which to redeem (Rural
Bank of Oroquieta vs. CA, et al, supra).
5. An order confirming the foreclosure sale made by

the sheriff is appealable (De la Cruz, Jr. vs. Sta. Maria,
856
REA L ES T AT E M O R T AG E
L-17928, April 30, 1963).
6. Upon the confirmation of the foreclosure sale, the

equity of redempt ion is cut off and title vests in favor of
the p ur c ha s e r r et roact ive to the dat e of act ual sale
(Grimalt vs. Velazquez, et al, 36 Phil. 936). There will,
t hereaft er, be no further right of redemption, except in
judicial foreclosure of mortgages by the Development Bank
of the Philippines (CA. 459), the Philippine National Bank
(Acts 2747 and 2938; now, Sec. 30, R.A. 1300), banks,
banking or credit inst it ut ions (Sec. 78, R.A. 1300 [General
Banking Act]) and rural banks (R.A. 2670). With respect
to foreclosure made by the Philippine National Bank, the
mortgagor has one year from the regist rat ion of the deed
of sale, whet her the foreclosure was judicial (Sec. 30,
R.A. 1300) or extrajudicial (Act 3135, as amended by Act
4118) as long as the land is regist ered under Act 496
(Quimson vs. PNB, L-24920, Nov. 24, 1970).
7. Foreclosure of mortgages to banking inst it ut ions,

whet her judicially or extrajudicially, is subject to legal
redemption, but the party redeeming must pay the amount
fixed by the court in the order of execution, not the amount
for which the property was purchased at public auction
(Ponce de Leon vs. RFC, L-24571, Dec. 18, 1970; Sec. 78,
R.A. 337). The same rule applies to foreclosures effected
by the Philippine National Bank and the Development
Bank of the Philippines, as provided for in their respective
chart ers (DBP vs. Mirang, L-29130, Aug. 8, 1975). In
ot her execut ion sales, the redempt ion amount is the
auction price with interest (Dulay vs. Carriaga, et al, G.R.
No. 52831, July 29, 1983).
Sec. 4. Disposition of proceeds of sale. — The

amount reali zed from the foreclosu re sale of the
mortgaged property shall, after d ed u ctin g the costs
of the sale, be paid to the person foreclosing the
mortgage, and when there shall be any balance or
857
r e s i d u e , a f te r p a y i n g of f the m o r t g a g e de b t d ue , the
s a m e s h a l l b e p a i d t o j u n i o r e n c u m b r a n c e r s i n the
o r d e r o f t h e i r p r i o r i t y , t o b e a s c e r t a i n e d b y the
c o ur t , o r i f t h e r e b e n o s uc h e n c u m b r a n c e r s o r t h e r e
b e a b a l a n c e o r r e s i d u e a f te r p a y m e n t t o t h e m , t h e n
t o the m o r t g a g o r o r hi s d ul y a u t h o r i z e d a g e n t , o r
t o the p e r s o n e n t i t l e d t o it. (4a )
S e c . 5. How sale to proceed in case the debt is not

all due. — I f the d e b t fo r w h i c h the m o r t g a g e o r
e n c u m b r a n c e wa s h e l d i s no t al l du e a s p r o v i d e d i n
the j u d g m e n t , a s s o o n a s a s u f f i c i e n t p o r t i o n o f the
p r o p e r t y ha s b e e n s ol d t o pa y the t ot a l a m o u n t an d
the c o s t s d ue , the sa l e s h a l l t e r m i n a t e ; an d af te r •
w a r d s , a s of t e n a s m o r e b e c o m e s du e fo r p r i n c i p a l
o r i n t e r e s t an d o t h e r va l i d c h a r g e s , the C o u r t may ,
o n m o t i o n , o r d e r mor e t o b e s ol d . B u t i f the p r o p e r t y
c a n n o t b e s ol d i n p o r t i o n s w i t h o u t p r e j u d i c e t o the
p a r t i e s , the w h o l e s h a l l b e o r d e r e d t o b e s ol d i n the fi r s
t i n s t a n c e , an d the e n t i r e d e b t an d c o s t s s h a l l b e
p a i d , i f the p r o c e e d s o f the s al e b e s u f f i c i e n t t h e r e f o r ,
t h e r e b e i n g a r e b a t e o f i n t e r e s t w h e r e s uc h r e b a t e i s
p r o p e r . (5a )
Sec . 6 . Deficiency judgment. — If u p o n the s a l e

o f a n y re a l p r o p e r t y a s p r o v i d e d i n the ne x t
p r e c e d i n g s e c t i o n t h e r e b e a b a l a n c e d u e t o the
p l a i n t i f f a f te r a p p l y i n g the p r o c e e d s o f the s al e , the
court , upo n moti on , shal l r e nd e r j u d g m e n t agai ns t
the d e f e n d a n t fo r an y s u c h b a l a n c e fo r w h i c h , b y
the r e c o r d o f the c a s e , h e ma y b e p e r s o n a l l y l i a b l e t
o the p l a i n t i f f , u p o n w h i c h e x e c u t i o n ma y i s s u e
i m m e d i a t e l y i f the b a l a n c e i s al l du e a t the ti m e o f
t he r e n d i t i o n o f t h e j u d g m e n t ; o t h e r w i s e , the p l a i n t i f
f s h a l l b e e n t i t l e d t o e x e c u t i o n a t s uc h t i m e a s the
b a l a n c e r e m a i n i n g b e c o m e s du e U N D E R the t e r m s o f
the o r i g i n a l c o n t r a c t , w h i c h t i m e s h a l l b e s t a t e d i n the
j u d g m e n t . (6a )
858
RUL E 68 FORE CLO SUR E O F S E C S . 5-6
REAL EST AT E M O RT GAG E
NOTES
1. Sec. 6 provides for a deficiency judgment which

shall be rendered, on motion, when the foreclosure sale
did not produce proceeds sufficient to satisfy the judgment.
Such a deficiency judgment is immediately executory if
the balance is all due.
Where, however, the mortgage was executed by a
third person to secure the obligation of a debtor, such third
person not having assumed personal liabilit y for the
payment of the debt, the extent of recovery in the judgment
of foreclosure shall be limited to the purchase price at the
foreclosure sale and no deficiency jud g me nt can be
recovered against said person (Phil. Trust Co. vs. Tan
Suisa, 52 Phil. 852). The reason for this is the fact t hat
the mortgage contract itself delimits the extent of the relief
against the third party mortgagor. The remedy of the
mortgagee is to proceed against the debtor in an ordinar y
action for a sum of money to recover the balance of the
debt due.
2. In extrajudical foreclosure, the mortgagee can also

recover by action any deficiency in the mortgage account
which was not realized in the foreclosure sale (DBP vs.
Mirang, L-29130, Aug. 8, 1975; DBP vs. Zaragosa, L-
23493, Aug. 23, 1978; PNB vs. CA, et al., G.R. No. 121739,
June 14, 1999). There can be no deficiency judgment as
t here was no judicial proceeding in the foreclosure of the
mortgage itself.
3. A different rule applies in the case of a mortgage
debt due from the estate of a deceased mortgagor. Under
Sec. 7, Rule 86, t here are t hree alt er nat ive remedies
available to the mortgage creditor who, however, can avail
of only one of them. If he avails of the third mode, t hat is,
by relying upon his mortgage alone and foreclosing the
same within the st atut e of limitat ions, he thereby waives
any deficiency claim. This bar to an action for recovery
859
RULE 68 REM EDIAL LAW CO M P EN DIU M SECS. 7-8
of any deficiency applies w het her he foreclosed the

mortgage judicially or extrajudicially (Phil. National Bank
vs. CA, et al., G.R. No. 121571, June 29, 2001). This is
because said Sec. 7 provides that, in such event, he shall
neit her be admitted as a creditor nor further share in the
assets of the estate.
Sec. 7. Registration. — A certified copy of the

fi n al ord e r o f the Cou rt c o n f i r m i n g the sale
shall be registered in the registry of deeds. If no
right of redemption exist s, the certificate of title of
the mortgagor shall be cancelled, and a new one
issued in the name of the purchaser.
Where a right of redemption exists, the certi•
ficate 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 memoran d u m thereof made by the registrar of
deeds upon the certificate of title. In the event the
property is red eemed, 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 e xe c u t e d by the sh eri f f in favor of the
purchaser at the foreclosure sale shall be registered
with the registry of deed s, whereupon the certifi•
cate of title in the name of the mortgagor shall be
cancelled and a new certificate issued in the name
of the purchaser, (n)
Sec. 8. Applicability of other provisions. — The

provisions of sections 31, 32 and 34 of Rule 39 shall
be app li cab le to the jud i ci al foreclosure of real
estate mo rt gages under this Rule insofar as the
former are not in con si st ent with or may serve to
supp lement the provisions of the latter. (8a)
860
RUL E 68 FORE CLO SUR E O F S E C S . 7-8
REA L ES T AT E M O R T GAG E
NOTES
1. Sec. 7 has been supplement ed by the provisions

of Sec. 61 of P.D. 1529 on land registrat ion, with some
modifications, to provide more specificity to the procedure
for regist rat ion relat ive to foreclosure sales.
2. The former Sec. 8 of this Rule providing for judicial
foreclosure of chattel mortgages has been eliminated as
the subject is more properly addressed to the provisions of
the Chattel Mortgage Law and the pert inent prescript ions
thereon of the Civil Code.
3. For special provisions on foreclosure of mortgages
by go ver n me n t financ ial inst it ut io ns, see P.D. 385 ,
effective Ja nuar y 31 , 1974, with the purpose thereof and
the limit at io ns t her eo n being explained in Filipinos
Marble Corp. vs. IAC, et al. (G.R. No. 68010, May 30,
1986).
4. . In A.M. No. 99-10-05-0, the S upr e me
Court ado pt ed the add it io na l Rules on t he
P r o ced ur e in E xt r ajudic ia l or Judic ial Foreclosure
of Real E st at e Mortgages, effective March 10, 2007, as
follow:
(1) No t emporary rest raining order or writ of
pr e li minar y injunct ion against the ext r ajudic ia l
foreclosure of real estate mortgage shall be issued on
the allegat ion t hat the loan secured by the mortgage
has been paid or is not deliquent unless the application
is verified and supported by evidence of payment.
(2) No t emporary rest raining order or writ of
pr eliminar y injunct ion against the ext rajudicial
foreclosure of real estate mortgage shall be issued on
t he allegat io n t hat the int er es t on the loan i s
unconscionable, unless the debtor pays the mortgage
at least twelve percent per annum interest on the
pr incipal obligat ion as st at ed in the applicat io n
obligation as stated in the application for foreclosure
861
RUL E 68 REM EDIAL LAW CO M P EN DIU M SECS. 7-8
sale, which shall be updated monthly while the case

is pending.
(3) Where a writ of preliminary injunction has
been issued against a foreclosure of mortgage, the
disposition of the case shall be speedily resolved. To
this end, the court concerned shall submit to the
Supreme Court, t hrough the Office of the Court
Administrator, quarterly reports on the progress of
the cases involving ten million pesos and above.
(4) All requirement s and restrictions prescribed
for the issuance of a temporary restraining order/writ
of preliminar y injunction, such as the posting of a
bond, which shall be equal to the amount of the
out st anding debt, and the time limit at ion for its
effectivity, shall apply as well to the status quo order.
Upon the effectivity of said additional rules, al rules,
resolutions, orders and circulars of the Court, which are
i nco ns is t e n t t he r e w it h , are r epea led or modified
accordingly.
862
RULE 69
PARTITION
S ect i on 1. Complaint in action for partition of real

estate. — A p erson h avi n g the right to compel the
p arti ti on of real est ate may do so as provided in this
Rule, s et t i n g forth in his comp laint the natu re and
ext ent of his title and an ad equ at e descri pt i on of
the real estat e of wh i c h partition i s deman d e d and
j oi n i n g as d efen d an t s all other p erson s int erest ed
in the property, (la)
Sec. 2. Order for partition, and partition by agree•

ment thereunder. — If after the trial the court finds
that the plaintiff has the right thereto, i t shall order
the p art i ti on of the real estate amon g all the parties
in i nt erest. Th ereu p on the parties may, i f they are
able to agree, make the partition amon g t h e m se l v e s
by proper i n st ru men t s of con veyance, and the court
shall confi rm the partition so agreed upon by all
the p art i es, and such partition, t ogeth er with the
order of the cou rt con fi rmi n g the same, shall be
re co rd ed in the regi st ry of deed s of the place in
wh ich the property is situated. (2a)
A fi n a l o rd e r d e c r e e i n g p a r t i t i o n an d / o r
accou n t i n g may be appealed by any party aggrieved
thereby, (n)
NOTES
1. The part it io n of propert y may be vo lunt arily

effected by agreement or compulsorily as under this Rule.
Even if the part ies had resorted to judicial part it ion,
they may still make an amicable part it ion of the property
(Secs. 2 and 12).
863
2. Actions for partition should be filed in the Court

of First Instance of the province where the property or a
part thereof is situated. If several distinct parcels of land
are situated in different provinces, venue may be laid in
the Court of First Inst ance of any of said provinces
(Pancho, et al. vs. Villanueva, et al., 99 Phil. 611).
3. The right of action to demand partition does not
prescribe (De Castro vs. Echarri, 20 Phil. 23), except where
one of the interested parties openly and adversely occupies
the propert y wit hout recognizing the co-ownership
(Cordova vs. Cordova, 102 Phil. 1182 [Unrep.J) in which
case acquisitive prescription may set in.
4. Formerly, the rule was that the order for parti•
tion in Sec. 2 is not a final, but an interlocutory, order,
hence it is not appealable. It is when the final judgment
is rendered, after the proceedings of the commissioners
for the partition of the land are submitted and confirmed,
t hat appeal is available (see Vda. de Zaldarriaga vs.
Enriquez, L 13252, April 29, 1961). Subsequent ly,
however, it was held t hat the decision of a trial court
granting recovery of properties for the purpose of ordering
their part it ion is a definitive and appealable judgment
because it decides the right s of the part ies upon the
issue submitted. Unless the issue of ownership is definitely
resolved, it would be premature to effect a partition of
the properties (Miranda, et al. vs. CA, et al., L-33007,
June 18, 1976; Valdez vs. Bagaso, L-46608, Mar. 8, 1978;
Fabrica, et al. vs. CA, et al., L-47360, Dec. 15, 1986). This
has now been confirmed by the addition of the second
paragraph of Sec. 2.
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
person s as com mi s si on e rs to make the partition,
864
RULE 69 PARTITION SECS. 4-6
c o m m a n d i n g th e m to set off to the p lain ti ff and

to each party in interest such part and proportion
of the p rop erty as the court shall direct. (3a)
Sec. 4. Oath and duties of commissioners. — Before

maki n g suc h p art i t i on , the c o m m i s s i o n e r s shall
take and subscrib e an oath that they will faithfully
p e rf o r m t h ei r d u t i e s a s c o m m i s s i o n e r s , wh i c h
oat h shal l be filed in cou rt wit h the oth e r pro•
ceed i n gs in the case. In maki ng the partition, the
c o m m i s s i o n e r s sh all vie w and e xa m i n e the real
estate, after due notice to the parties to attend at
suc h vie w and e xa m i n a t i on , and shall hea r the
parties as to their preference in the portion of the
p r o p e r t y t o b e se t a p a r t t o t h e m an d the
comp arat ive value thereof, and shall set apart the
same to the part i es in lots or parcels as will be most
ad van t ageou s and equitable, h avin g due regard to
the i m p r o v e m e n t s , s i t u a t i o n and qu ali t y o f the
different parts thereof. (4a)
Sec. 5. Assignment or sale of real estate by commis•

sioners. — Wh e n i t i s mad e to a p p e a r to the
c o m m i s s i o n e r s that the real est at e, or a p ort i on
thereof, can not be divided with ou t prejudice to the
i n t e re s t o f the p art i e s , the Cou rt may ord e r i t
assi gn ed to one of the parties wi lli n g to take the
same, provided he pays to the other parties such
a m o u n t s a s the c o m m i s s i o n e r s d ee m eq u i t ab l e ,
unless one of the interested parti es asks that the
property be sold i n st ead of being so assi gn ed, in
which case the court shall order the commi ssi on e rs
to sell the real est at e at public sale u nd er such
cond iti on s and within such time as the court may
d et ermi n e. (5a)
Sec. 6. Report of commissioners; proceedings not

binding until confirmed. — The c o m m i s s i o n e r s
865
RULE 69 REM EDIAL LAW CO M P END IU M SECS. 7-8
shall make a full and accurate report to the court

of all their p roceedings as to the partition, or the
assi gnment 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 i n t ere st ed p arti es 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
p r o c e e d i n g ha d b efor e o r c o n d u c t e d b y the
commi ssion ers shall pass the title to the party or
bind the parties until the court shall have accepted
the rep ort of the c o m m i s s i o n e r s and ren d e red
judgment thereon. (6a)
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 expi ration of such period but after the
interested parties have filed their objections to the
report or their statement of agreement therewith,
the cou rt may, upon h eari n g, accept the report
and ren d e r j u d g me n t in acco rd an c e t h erewi t h ;
or, for cau s e sh own , recom mi t the same to the
com mi ssi on e rs for further report of facts; or set
aside the report and appoint new commission ers;
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 estat e, or of its value, if assi gned or sold as
ab ov e p ro v i d e d , b e t w e e n the s e v e ra l o w n e r s
thereof. (7)
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
866
RUL E 69 P ARTI TI O N SE C S . 9 -11
rents and profits. (8a)
Sec. 9. Power of guardian in such proceedings. —

The gu a rd i an or gu ard i an ad litem of a minor or
person j u di cially d eclared to be i n comp et en t may,
wit h the ap p roval of the court first had, do and
perform on behalf of his ward any act, matter, or
t hi n g re s p e ct i n g the partition of real est at e, wh i ch
the mi n o r o r p e r s o n j u d i c i a l l y d e c l a r e d t o b e
i n comp et en t could do in partition p roceedi ngs i f he
were of age or comp et ent. (9a)
Sec. 10. Costs and expenses to be taxed and collected.

— The Cou rt sh al l e q u i t a b l y ta x and a p p o rt i o n
b e t w e e n o r a m o n g the p a rt i e s the c o s t s an d
exp en s e s whi c h accrue in the action, i n clu d i n g the
co mp en sa t i o n of the commi ssi on e rs, havin g regard
to the i n t erest of the parties, and e xecu t i on may
issu e therefor as in other cases. (10a)
Sec. 11. The judgment and its effect; copy to be

recorded in registry of deeds. — If actual partition of
p r o p e r t y i s m a d e , the j u d g m e n t sh al l st at e
d e f i n i t e l y , b y met e s an d b ou nd s and a d e q u a t e
d escri pti on, the particular portion of the real estate
a s s i g n e d t o eac h p art y , an d the eff ec t o f the
j u d gmen t shall be to vest in each party to the action
in severalty the portion of the real est ate assi gn ed
to him. If the whole property is assi gn ed to one
of the p art i es upon his p ayin g to the oth ers the
sum or sums ordered by the court, the j u d gmen t
shall st at e the fact of such p aymen t and of the
assi gn men t of the real estate to the party makin g
the p aymen t, and the effect of the jud gmen t shall
be to ves t in the party maki n g the p aymen t 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,
867
RULE 69 REMEDIALLAW COMPENDIUM SECS. 12-13
the judgment shall state the name of the purchaser

or p u rch a se rs and a d efi n it e d escri p t i on 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
j ud gment shall in either case be record ed in the
registry of deeds of the place in which the real estate
is situated, and the exp en ses of such recording shall
be taxed as part of the costs of the action. (11a)
Sec. 12. Neither paramount rights nor amicable

partition affected by this Rule. — Nothing in this Rule
cont ain ed shall be con st ru ed 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 who m the partition may have
been made; nor so as to restrict or prevent persons
h o ld i n g real e st at e j oi n t l y or in commo n from
making an amicable partition thereof by agreement
and suitable i n st ru men t s of con veya n ce wi th out
recourse to an action. (12a)
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 and personal property, in so far as the same
may be applicable. (13)
NOTES
1. It is in partition and expropriation proceedings

that reference to commissioners is required as a proce•
dural step in the action. In other cases, reference to
commissioners is discretionary with the court (see Rule
32 and notes thereunder).
868
RUL E 69 P ARTI TI O N SE C S . 1 2 -1 3
2. The commissioners appointed by the court have

the power and duty only to effect the part it ion of the
propert y. They have no power to inquire into the question
of ownership or right to the possession of the property
(Araullo vs. Araullo, 3 Phil. 567), nor of claims to title or
right of possession by third persons (Sec. 12).
869
RULE 70
FORCIBLE ENTRY AND

UNLAWFUL DETAINER
S ect i on 1. Who may institute proceedings, and

when. — S u b j ec t to the p ro v i s i o n s of the next
s u c c e e d i n g s e ct i o n , a p e rso n d e p ri v e d of the
p o s s e s s i o n o f an y land o r b u i l d i n g b y force,
i n t i m i d a t i o n , t h reat , st rat egy , or s t ealt h , or a
lessor, ven d or, ven d ee , or other p erson agai n st
who m the p os se s si o n of any land or b ui ld in g is
u n l a w f u l l y w i t h h e l d aft e r the e x p i r a t i o n o r
t e rm i n at i o n of the right to hold p os se s s i on , by
virtue of any contract, exp ress or implied, or the
legal rep resen tati ves or assign s of any such lessor,
vendor, vendee, or other person, may, at any time
within one (1) year after such unlawful deprivation
or wi th hold in g of possessi on, bring an action in the
proper Municipal Trial Court against the person or
p erson s u n lawfu lly wi t h h o ld i n g or d ep ri vi n g of
p o s s e s s i o n , or any p erso n or p ers on s clai mi n g
under them, for the restitution of such possession,
together with damages and costs, (la)
Sec. 2. Lessor to proceed against lessee only after

demand. — Unless otherwise stipu lated, 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
wri tt en notice of such d eman d upon the person
found on the premi ses, 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. (2a)
870
RUL E 70 FO R CI BL E ENTR Y AN D SEC . 2
U N L A W F U L D E T AI N E R
NOTES
1. The provisions of the former Sec. 1 of this Rule

have been maint ained in this amended Sec. 1, except t hat
the requirement for the verification of the complaint has
been included in the provisions of the present Sec. 4 since,
as a consequence of the adoption of the summary rule for
eject ment cases, all the pleadings authorized t herein are
required to be verified.
The reference to the Agricultural Tenancy Act in said
former Sec. 1 has also been transposed to the new Sec. 3,
under the general denominat ion of all agricultural tenancy
laws, due to the developments in the coverage of social
legislat ion since 1964.
The pr ese n t Sec. 2 r et ains the su bst ance of its
predecessor, the text of which was merely rephrased for
simplicity and clarit y.
2. Eject ment suits can be maint ained with respect to
all kinds of land (Robles vs. Zambales Chromite Mining
Co., 104 Phil. 688), but agricult ural lands under tenancy
are now subject to the land reform laws, and cases arising
t hereunder were within the jurisdict ion of the agrarian
courts. Said agrar ian courts, however, have now been
int egrat ed with the Regional Trial Court, as branches
thereof, under B.P. Blg. 129. See the subsequent changes
as explained in Note 2 under Sec. 2 of Rule 1.
The inferior court has no jurisdiction over an agrarian
dispute even if the action obstensibly appears to be one
for forcible entry (Arevalo vs. Benedicto, et al., L-27895,
July 31, 1974).
3. The t hree kinds of action for the recovery of
possession of real property are:
a. Accion interdictal, or an eject ment proceeding
under this Rule, which may be either that for forcible entry
(detentacion) or unlawful detainer (desahucio), which is
871
a summary action for the recovery of physical possession

where the dispossession has not lasted for more than one
year, and should be brought in the proper inferior court;
b. Action publiciana, or the plenary action for the
recovery of the real right of possession, which should be
brought in the proper Regional Trial Court when the
dispossession has lasted for more than one year; and
c. Action reivindicatoria, or action de revindication,
which is an action for the recovery of ownership (and
which includes the recovery of possession) which must
also be brought in the proper Regional Trial Court (see
Firmeza vs. David, 92 Phil. 733; Emilia vs. Bado, L-23685,
April 25, 1968).
4. This Rule provides for the action interdictal which
may eit her be for forcible entry or unlawful detainer.
These two forms of ejectment suits may be distinguished
as follows:
a. In forcible entry, the possession of the land by
the defendant is unlawful from the beginning as he
acquires possession thereof by force, intimidation, threat,
st rat egy or st ealt h; while in unlawful det ainer, the
possession of the defendant is inceptively lawful but it
becomes illegal by reason of the terminat ion of his right
to the possession of the property under his contract with
the plaintiff (Dikit vs. Ycasiano, 89 Phil. 44).
b. In forcible entry, the Rule does not require a
previous demand for the defendant to vacate the premises;
but in unlawful detainer, the plaintiff must first make
such demand, which is jurisdict ional in nature (Sec. 2;
Medel vs. Militante, 41 Phil. 44).
c. In forcible entry, the plaintiff must prove that he
was in prior physical possession of the premises until
he was deprived thereof by the defendant; in unlawful
detainer, the plaintiff need not have been in prior physical
possession (Maddamu vs. Judge of Mun. Court, etc.,
872
et al., 74 Phil. 230; Aguilar vs. Cabrera, 74 Phil. 666;

Banayos vs. Susana Realty, Inc., L-30336, June 30, 1976;
Pharma Industries, Inc. vs. Pajarillaga, et al., G.R. No.
53788, Oct. 17, 1980).
d. In forcible entry, the one-year period is generally
counted from t he date of actual entry on the land; in
unlawful detainer, from the date of last demand (Sarona,
et al. vs. Villegas, et al., L-22984, Mar. 27, 1968) or last
letter of demand (Racaza vs. Susana Realty, Inc., L-20330,
Dec. 22, 1966; Calibayan vs. Pascual, L-22645, Sept. 18,
1967; DBP vs. Canonoy, L-29422, Sept. 30, 1970).
5. What det ermines the cause of action, whet her

forcible ent r y or unlawful det ainer, is the nat ur e of
defendant's entry into the land. If the dispossession is
not alleged to have t aken place by any of the means
specified by Sec. 1, Rule 70, the action is a plenary action
within the competence of the Court of First Instance and
may be filed even within one year from the dispossession
commit t ed by defendant (Banayos vs. Susana Realty,
Inc., supra; Sarmiento vs. CA, et al., G.R. No. 116192,
Nov. 16, 1995).
6. The plaint iff in forcible ent r y and unlawful

detainer actions may be the owner, a co-owner, or his legal
representat ive and/or assignee, or the landlord, the vendor,
the vendee or the person entitled to the physical possession
of the property.
The defendant should be the one who is in possession
of the property, who may either be the lessee, the sublessee
or an int ruder in the premises.
The act ion may be brought against gover nment
officials or agents acting in behalf of the Government, even
if the Government is not made a party to the action.
However, if in addition to the recovery of possession, the
plaintiff also seeks the recovery of damages or rentals
which would thereby result in a financial liability to the
873
RUL E 70 REM E DI A L LAW CO M PE ND IU M SEC. 2
Government, the action cannot be maintained under the

rule of non-suabilit y of the St ate wit hout its consent
(Tumbaga vs. Vasquez, et al., 99 Phil. 1051 fUnrep.J).
7. The only issue involved in ejectment proceedings
is as to who is entitled to the physical or material possession
of the premises, t hat is, possession de facto and not
possession de jure. Issues as to the right of possession or
onwership are not involved in the action and evidence
thereon is not admissible, except only for the purpose of
determining the issue of possession, such as by proving
the ext ent and c har act er of the possession claimed
(Pitargue vs. Sorilla, 92 Phil. 5; see Sec. 16). Hence, it
was held that the mere fact that the pleadings raise the
issue of ownership will not divest the inferior court of its
jurisdict ion, except where the issue of ownership is so
necessarily involved t hat the issue of physical possession
cannot be det ermined wit hout resolving the issue of
onwership (Luna, Inc. vs. Nable, 67 Phil. 340) in which
case the inferior court loses jurisdict ion (Ganadin vs.
Ramos, L-23547, Sept. 11, 1980). That exception was,
however, removed and the rule modified by B.P. Blg. 129
which provides t hat in ejectment proceedings where the
question of possession cannot be resolved without deciding
the issue of ownership, all inferior courts have the power
to resolve the issue of ownership but only to determine
the issue of possession (Sec. 33[2], changing the rule in
Sec. 3[c], R.A. 5967, which was then applicable to City
Courts).
8. Sec. 2 applies only to unlawful det ainer and

provides for the necessity of prior written demand. The
mere failure to pay the rent or to comply with the terms of
the lease does not ipso facto render defendant's possession
illegal (Canaynay vs. Sarmiento, 79 Phil. 36; Rickards
vs. Gonzales, infra).
a. The demand required and contemplated in Sec. 2
is a demand for the defendant to pay rentals due or to
874
RUL E 70 FO R CI BL E EN TR Y AN D SEC . 3
comply with the conditions of the lease, and not only a

demand to vacate the premises; and where the defendant
does not comply with said demand wit hin the periods
provided by Sec. 2, then his possession becomes unlawful
(Zobel vs. Abreu, 78 Phil. 343). Co nsequent ly, both
demands - to pay rent and to vacate - are necessary to
make the lessee a deforciant in order that an eject•
ment suit may be filed (Casilan vs. Tomassi, L-16574,
Feb. 28, 1964; Rickards vs. Gonzales, 109 Phil. 423;
Dikit vs. Ycasiano, ante), and the fact of such demands
must be alleged in the complaint, otherwise the inferior
court cannot acquire jurisdict ion over the case (Casilan
vs. Tomassi, supra). A notice giving the lessee the
alt ernat ive eit her to pay the rental or vacate the premises
does not comply with Sec. 2 of this Rule (Vda. de Murga
vs. Chan, L-24680, Oct. 7, 1968).
The demand does not have to specifically use the word
"vacate." It is sufficient t hat the letter to the occupants
puts him on notice to move out if he does not comply with
the t erms of the lease contract (Golden Gate Realty Corp.
vs. IAC, et al., G.R. No. 74289, July 31, 1987).
b. Even if the lease contract provides for the period
within which the rent als should be periodically paid, and,
in civil law, demand under such circumstances is no longer
required in order t hat the obligor may be in default, it is
submitted t hat for purposes of bringing an eject ment suit
the prior demand required in Sec. 2 must be given, despite
the st ipulat ed date for payment in the contract. Such
demand is a jurisdictional requisite and the demand should
not only be for the payment of the rentals in arrears but
also for the occupant to vacate the premises. Furthermore,
the one-year period for the inst it ut ion of the ejectment
suit is reckoned from the date when such demand, which
is generally required to be in writing, is not complied with.
c. The one-year period for bringing an ejectment suit
in unlawfu l det a ine r is count ed from the t ime the
defendant failed to pay the rent or comply wit h the
875
RUL E 70 REM EDIAL LAW CO M PE NDI U M SEC 2
contract after demand therefor, that is, after the expiration

of the 5-day or 15-day periods provided in Sec. 2 (see Cruz
vs. Atenacio, 105 Phil. 1257 [Unrep.J). If several demands
were made, the one-year period is counted from the
last demand lett er received by the defendant (Sy Oh
vs. Garcia, L-29328, June 30, 1969; Lim Chi vs. Garcia, L-
29589, June 30, 1969), unless the subsequent demands were
merely in the nature of reminders of the original demand,
in which case the one-year period is counted from the
first demand (Desbarats vs. Laureano, L-21875, Sept. 27,
1966).
d. Prior demand in unlawful detainer actions is not
required: (1) where the purpose of the action is to terminate
the lease by reason of the expiry of its term and is not
for failure to pay rent als or comply with the terms of
the lease contract (De Santos vs. Vivas, 96 Phil. 538);
(2) when the purpose of the suit is not for ejectment but
for the enforcement of the terms of the contract (Guanson
vs. Ban, 77 Phil. 7); or (3) when the defendant is not a
tenant but a mere intruder (id.).
However, P.D. 20, dated October 12, 1972, suspended
the provisions of Art. 1673, Par. (1), of the Civil Code
which provides for ejectment "(w)hen the period agreed
upon, or that which is fixed for the duration of leases under
Arts. 1682 and 1687, has expired;" but, subsequently, Sec.
6 of B.P. Blg. 25 provided for that suspension only with
respect to resident ial units and only when the lease is not
for a specific period. Since only Art. 1673 was suspended,
the determinat ion of the period of a lease agreement can
still be made in accordance with Art. 1687 (Rivera, et al.
vs. Florendo, et al., G.R. No. 60066, July 31, 1986).
The present rule is that a lease contract on a month-
to-month basis provides for a definite period and may be
terminated at the end of any month, hence by the failure
of defendant to pay the rental, the lease contract is deemed
t erminat ed and may be so t erminat ed by the plaintiff
without the necessity of prior demand (Lesaca vs. Cuevas,
876
U N L A W F U L DE T AIN E R
et al, L-48419, Oct. 27, 1983; Santos, vs. CA, et al., G.R.
No. 60310, Mar. 27, 1984; Dionio vs. IAC, et al.,
G.R. No. 63698, Jan. 12, 1987). This applies to verbal
contracts on a mont h-to-mont h basis (Zablan vs. CA, et
al, G.R. No. 57844, Sept. 30, 1987; Miranda vs. Ortiz, et
al, G.R. No. 59783, Dec. 1, 1987).
9. Where forcible entry was made through stealt h,
the one- year period should be counted from the time
the plaintiff learned thereof (Vda. de Prieto vs. Reyes, L-
21470, June 23, 1965; City of Manila vs. Garcia, et
al, L-26053, Feb. 21, 1967; Elane vs. CA, et al, G.R.
No. 80638, April 26, 1989).
Where defendant ' s ent ry upon the land was with
p la int if fs t o ler ance right from the dat e and fact of
entry, unlawful detainer proceedings may be inst it ut ed
within one year from the demand on him to vacate as there
is an implied promise on his part to vacate upon demand
(Yu vs. De Lara, L-10684, Nov. 30, 1962). The st at us of
such a defendant is analogous to t hat of a t enant or lessee,
the term of whose lease has expired but whose occupancy
is cont inued by the tolerance of the lessor (Vda. de
Cachuela vs. Francisco, L-31985, June 25, 1980). The
same rule applies where the defendant purchased the
house of the former lessee, who was already in arrear s in
the p a yme nt of r ent als, and t hereaft er occupied the
premises without a new lease contract with the landowner
(Dakudao, et al. vs. Consolacion, et al, G.R. No. 54753,
June 24, 1973; Peran vs. Presiding Judge, etc.,
G.R. No. 57259, Oct. 13, 1983).
10. Where the complaint fails to specifically aver facts
constitutive of forcible entry or unlawful detainer as where
it does not state how entry was effected or how and when
dispossession started, the action should either be accion
publiciana or accion reivindicatoria in the Court of First
Instance [now, the Regional Trial Court] (Sarona, et al
vs. Villegas, et al, supra; Daveza, et al. vs. Montecillo,
877
et al., L-23842, Mar. 28, 1969; see Banayos vs. Susana

Realty, Inc., supra).
11. Also, where the defendant refuses to vacate the
land on the ground that he is the lessee of the plaintiffs
predecessor-in-interest, the court will have to determine
who has the better right of possession and/or whether
said antecedent lease contract is binding on the plaintiff;
hence, the case is an accion publiciana and within the
jur isdict io n of the Regional Trial Court even if said
action was brought within one year from demand on the
defendant to vacate the premises (Bernabe vs. Dayrit, et
al., G.R. No. 58399, Oct. 27, 1983).
12. After the expiry of the term of the lease, the
possession of the lessee becomes unlawful and the lessor
may bring suit for his ejectment even without prior notice.
However, if no notice has been given and the lessee
cont inues in the possession of the premises with the
acquiescence of the lessor for 15 days after the expiry of
the term, an implied new lease is deemed to have been
made for the period or time provided for in the Civil Code
(Art. 1670). In the case of rural land, the implied new
lease is for a period necessary for the gathering of the
fruits which the estate may yield in one year or which
it may yield once; and, in the case of urban lands, for a
period as may be fixed by the court depending on the
length of prior occupation thereof by the lessee (Art. 1687).
This is known as the principle of tacita reconduccion
and const itutes a defense to an unlawful detainer suit
(Co Tiamco vs. Diaz, 75 Phil. 672). For the distinction
between urban and rural lands, see Fabia, et al. vs.
Intermediate Appellate Court et al. (G.R. No. 66101,
Nov. 21, 1984).
13. Where the tenant filed an action in the Regional

Trial Court to compel the landlord to agree to an extension
of the lease, and t hereaft er the landlord brought an
unlawful detainer suit in the lower court, the case in the
878
RUL E 70 FO R CI BL E EN TR Y AN D SEC . 2
Regional Trial Court should be dismissed on the ground

of litis pendentia which applies even if said action was
filed first. The issues raised in said action could very well
and should properly be threshed out in the eject ment case
(Rosales vs. CFIof Lanao del Norte, et al., G.R. No. 62577,
Sept. 21, 1987).
14. It is t rue t hat under Sec. 2, Rule 70, in ejectment

proceedings, the demand to vacate shall be made on the
defendant personally, or by wr itten notice of such demand
upon a person found on the premises, or by posting such
notice on the premises if no person can be found thereon.
However, said notice to vacate may also be served by
registered mail and constitutes substant ial compliance with
the prescribed modes of service. Eject ment actions are
summar y in nat ure because they involve a disturbance of
the social order which must be abated as prompt ly as
possible without undue reliance on procedural rules which
only cause delays (Co Keng Kian vs. CA, et al., G.R. No.
75676, Aug. 29, 1990). As revised, the word "personally"
has now been eliminated from the mode of making demand
on the defendant under Sec. 2 of this Rule.
15. The Municipal Trial Court has jurisdiction to try

the ejectment case while the plaintiffs action for annulment
of the mortgage and recovery of ownership of the same
property from the defendant is pending in the Regional
Trial Court. While there may be ident it y of part ies and
subject-matter in the two actions, the issues involved and
the reliefs prayed for are not the same. Also, it is incorrect
to say t hat the question of ownership is involved in the
eject ment suit just because the plaintiff alleged in her
complaint t hat she was the original owner of the subject
propert y. On the contrary, it only bolsters the conclusion
t hat the eject ment case does not involve the question of
title as this is the subject of the case in the Regional Trial
Court. Accordingly, the Rule on Summary Procedure
applies because the eject ment case involves only the
879
restoration of the physical possession of the subject land

and not its ownership (Joven vs. CA, et al., G.R. No.
80739, Aug. 20, 1992).
See the related discussion on this matter in Notes 3
and 4 under Sec. 14 of this Rule.
Sec. 3. Summary procedure. — Except in cases

covered by the agricu ltu ral tenancy laws or when
the law otherwi se 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 govern ed by the summary
procedure provided in this Rule, (n)
NOTE
1. With the adopt ion of the Rule on Summar y

Procedure, effective August 1, 1983, which applies, inter
alia, to forcible entry and unlawful detainer cases but with
limits on the amount involved, ejectment cases involving
reliefs within the jurisdictional amount were governed by
said rule on summary procedure, but those exceeding that
jurisdictional amount were covered by this Rule.
Effective November 15, 1991, the Revised Rule on
Summary Procedure applied to all cases of forcible entry
and unlawful det ainer irrespect ive of the amount of
damages or unpaid r e nt a ls sought to be recovered.
Consequently, the rules therein on summary procedure
were adopted for the special civil action of ejectment under
this Rule, which from the outset had always been intended
to provide for a summary proceeding but which fell short
of its objective. Parent het ically, the aforement ioned
Revised Rule on Summary Procedure still applies to all
other civil cases where the plaintiffs claim does not exceed
P 10,000, exclusive of interest and costs.
Excluded from t his pr ese nt amended Rule are
ejectment cases covered by the agricultural tenancy laws
880
RUL E 70 FO R CI BL E ENTR Y AN D S E C S . 4-7
or such as may otherwise be expressly provided by law,

the procedure wherein shall be in accordance with their
governing st at ut es.
Sec. 4. Pleadings allowed. — The only p leadin gs

allowed to be filed are the comp laint , compu lsory
c o u n t e r c l a i m an d c r o s s - c l a i m p l e a d e d i n the
a n s w e r , and the an sw e r t h e re t o . All p l e a d i n g s
shall be verified. (3a, RSP)
Sec. 5. Action on complaint. — The cou rt may,

from a n e x a m i n a t i o n o f the a l l e g a t i o n s i n the
comp lai n t and such evi d en ce as may be at tach ed
t h eret o , d i sm i s s the case ou t ri gh t on any of the
grou nd s for the d i smi ssal of a civil acti on wh ich are
ap p aren t t h erei n . If no ground for d i s m i s sa l i s
found, it shall forthwith issue su mmon s, (n)
Sec. 6. Answer. — With in te n (10) day s from

se rvi ce of su mmon s , the d efen d an t shall file his
an swer to the comp lai nt and serve a copy t h ereof
on the plaintiff. Affirmative and negative d efen se s
not p lead ed t h erei n shall be deemed waived, except
lack of j u ri sd i cti on over the subject- matter. Cross-
claims and compu lsory cou n t erclai ms not assert ed
in the an sw e r shall be c o n s i d e re d b arred. The
an swe r to cou nt erc lai m s or cross- clai ms shall be
served and filed within ten (10) days from service of
the an swer in whi ch they are pleaded. (5, RSP)
Sec. 7. Effect of failure to answer. — Should the

d efend ant fail to answer the comp lain t within the
period above provided, the court, motu proprio or
on motion of the plaintiff, shall render j ud gment as
ma y be w a r ra n t e d by the fact s a l l e g e d in the
comp laint and limited to what is prayed for therein.
The court may in its discretion reduce the amount
881
RULE 70 REM EDIAL LAW CO M P EN DIU M SECS. 8-9
of damages and attorney's fees claimed for being

exc es si ve or ot h erwi s e u n con s ci on ab l e, wi t hou t
prejudice to the applicability of section 3(c), Rule 9
if there are two or more defendant s. (6, RSP)
Sec. 8. Preliminary conference; appearance of

parties. — Not later than thirty (30) days after the
last answer is filed, a preli minary conference shall
be held. The provisions of Rule 18 on pre-trial shall
be applicable to the prelimin ary conference unless
i n con si st ent with the provisions of this Rule.
The failure of the plaintiff to appear in the
p re l i mi n a r y c o n f e re n c e sh all be cau s e for the
d i smi ssal of his comp lai nt. The d efen dant who
app ears in the ab sen c e of the p laint iff shall be
e n t i t l e d t o j u d g m e n t o n hi s c o u n t e r c l a i m i n
accord ance with the next p reced in g section. All
cross-claims shall be dismi ssed. (7, RSP)
If a sole d efen d an t shall fail to ap pear, the
plaintiff shall be entitled to judgment in accordance
with the next p recedi ng section. This procedure
shall not apply where one of two or more defendants
sued un der a common caus e of action who had
p lead ed a commo n d efen s e shall app ear at the
preli minary con ference.
No postp on ement of the preliminary conference
shall be gran t ed excep t for h i gh ly me ri t o ri ou s
grounds and without prejudice to such sanctions
as the court in the exercise of sound discretion may
impose on the movant, (n)
Sec. 9. Record of preliminary conference. —Within

five (6) days after the termination of the preliminary
conference, the court shall issue an order stating
the matters taken up th erei n, in cludi ng but not
limited to:
882
RUL E 70 FO R CI BL E ENTR Y AN D SE C S . 10-11
1. . W h e t h e r the p art i e s hav e arri v e d at

an amicab le set t lement, and i f so, the terms
thereof;
2. . The sti pu lat ion s or ad mi ssion s en tered
into by the parties;
3. . Wh eth er, on the basis of the p le adi ngs
and the st i pu lat ion s and admissions made by the
parties, j u d g m e n t ma y be ren d e re d wi t h o u t the
nee d of further p ro ceed i n gs, in which event the
j u d gmen t shal l be re n d e re d wi t h i n t h i rt y (30)
day s from i ssu an ce of the order;
4. A clear sp eci fi cati on of material facts wh ich
remain con t rove rt ed ; and
5. . Such other matters i n t en ded to exp edit e
the d i sp osi t i on of the case. (8, RSP)
Sec. 10. Submission of affidavits and position

papers. — Within ten (10) days from receipt of the
order men t i on ed in the next p recedi ng section, the
parties shall sub mit the affidavits of their wi t n ess es
and other evi d en ce on the factual issu es defined in
the ord e r , t o g e t h e r wit h t h ei r p osi t i o n p ap er s
sett in g forth the law and the facts relied upon by
them. (9, RSP)
Sec. 11. Period for rendition of judgment. — Within

thirty (30) days after receipt of the affidavits and
p ositi on papers, or the expi rati on of the period for
filing the same, the court shall render judgment.
H owever, should the court find it necessary to
clarify certain material facts, it may, durin g the said
period, issue an order specifying the matters to be
clarified, and require the parties to submit affidavits
or other evi d en ce on the said matters within ten
(10) days from receipt of said order. Jud gment shall
be rendered within fifteen (15) days after the receipt
883
RUL E 70 REM EDIAL LAW CO M PE ND IU M SECS. 12-13
o f the l as t a f f i d a v i t o r the e x p i r a t i o n o f the p e r i o d

fo r f i l i n g the s a me .
T he C o u r t s h a l l no t r e s o r t t o the f o r e g o i n g
p r o c e d u r e j us t t o g ai n ti m e fo r the r e n d i t i o n o f the
j u d g m e n t , (n )
Sec . 12 . Referral for conciliation. — C a s e s

r e q u i r i n g r e f e r r a l fo r c o n c i l i a t i o n , w h e r e t h e r e i s
n o s h o w i n g o f c o m p l i a n c e wit h s uc h r e q u i r e m e n t ,
s h a l l b e d i s m i s s e d w i t h o u t p r e j u d i c e , an d ma y b e
r e v i v e d o n l y a f t e r t h a t r e q u i r e m e n t s h a l l h a v e be e n
c o m p l i e d w i t h . (1 8a , R S P )
S e c . 13 . Prohibited pleadings and motions. — Th e

f o l l o w i n g p e t i t i o n s , m o t i o n s , o r p l e a d i n g s s h a l l no t
b e allowed :
1 . M o t i o n t o d i s m i s s the c o m p l a i n t e x c e p t o n
the g r o u n d o f l ac k o f j u r i s d i c t i o n ove r the s u b j e c t
m a t t e r , o r f a i l u r e t o c o m p l y w i t h s e c t i o n 12 ;
2 . M o t i o n fo r a bil l o f p a r t i c u l a r s ;
3 . M o t i o n fo r ne w t r i a l , o r fo r r e c o n s i d e r a t i o n
o f a j u d g m e n t , o r fo r r e o p e n i n g o f t r i a l ;
4 . P e t i t i o n fo r r e l i e f f r o m j u d g m e n t ;
5 . M o t i o n fo r e x t e n s i o n o f t i m e t o f i l e
p l e a d i n g s , a f f i d a v i t s o r an y o t h e r p a p e r ;
6. Me mor anda ;
7 . P e t i t i o n fo r c e r t i o r a r i , m a n d a m u s , o r
p r o h i b i t i o n a g a i n s t an y i n t e r l o c u t o r y o r d e r i s s u e d
b y the c o ur t ;
8 . M o t i o n t o d e c l a r e the d e f e n d a n t i n d e f a ul t ;
9 . D i l a t o r y m o t i o n s fo r p o s t p o n e m e n t ;
10 . Reply ;
11 . T h i r d - p a r t y c o m p l a i n t s ;
884
RUL E 70 FO R CI BL E ENTR Y AN D SE C S . 1 2-14
12. In t erven t i on s. (19a, RSP)
Sec. 14. Affidavits. — The affidavits requ ired to

be su b mi tt ed u nd er this Rule shall state only facts
of direct p erson al kn owled ge of the affiants wh i ch
are ad mi s si b l e in evi d en ce, and shall show t h ei r
comp et en ce to testify to the matters st ated th erein.
A violati on of this requ i rement may subject the
p art y o r the c o u n s e l wh o s u b m i t s the sam e t o
d i sci p linary action, and shall be cause to exp u n ge
the i n ad mi ssi b le affidavit or portion t hereof from
the record. (20, RSP)
NOTES
1. See Notes 7 to 10 under Sec. 2 of Rule 5, and Notes

1, 2 and 6 to 8 under Sec. 4 of Rule 7.
2. As earlier explained, with the adoption of the
Revised Rule on Summary Procedure applicable to all cases
of forcible entry and unlawful detainer except those under
the agricult ural tenancy laws, the same supplant ed and
is now the subst ant ial text of the present Rule 70 on
eject ment, in lieu of the former provisions of this special
civil action except those which have been retained.
The su m mar y nat ur e and purpose of eject ment
proceedings are more fully subserved by the new provisions
under which the trial court no longer conducts a hearing
for the reception of testimonial evidence. The adjudication
of eject ment cases, as well as those other cases covered by
the aforesaid summary procedure rule, is done merely on
the basis of affidavits and such position papers as may be
required.
A mere reading of the summary rules reveals the basic
object ive, t hro ugh the procedur al r equ ir e me nt s and
prohibit ions therein, to obviate dilatory pract ices and
unnecessar y delay which have long been the bane of
885
RULE 70 REM EDIAL LAW CO M PE NDI U M SECS . 1 2 - U
eject ment proceedings. That purpose is furt her com•

plemented by the En Banc Resolution of April 7, 1988 of
the Supreme Court which is inter alia directed against
unnecessary litigation and appeals in ejectment cases.
3. Before, and even after, the adoption of the Rules
on Summar y Procedure, the usual quest ion raised,
whet her unwitt ingly through error or intent ionally for
delay, is the effect on the jurisdiction of the inferior court
in ejectment cases where the defendant interjects therein
an issue on the ownership of the realt y involved by
claiming title thereto either in the same case or in an action
filed in the Regional Trial Court.
In Hilario, et al. vs. Court of Appeals, et al.
(G.R. No. 121865, Aug. 7, 1996), defendant s claimed
that they never sold to the plaintiffs the lot from which
the former were being ejected by the latter, claiming that
what they executed was not a deed of sale but only a
mortgage contract. For resolution then was whether or
not the conflicting positions of the part ies on the issue of
ownership could plausibly deprive the Municipal Trial
Court of jurisdict ion over the case.
The Supreme Court ruled in the negative, pointing
out that under Sec. 33(2) of B.P. Blg. 129, the Interim
Rules and Guidelines implement ing said law, the Revised
Rule on S ummar y Procedure, and R.A. 7691 which
expanded the jur isdict io n of the inferior courts, the
consistent rule is t hat said trial courts retain jurisdiction
over ejectment cases even if the question of possession
cannot be resolved without passing upon the issue of
ownership, with the caveat that in said case the issue of
ownership shall be resolved by the trial court for the sole
purpose of det er mining the issue of possession. The
adjudicat io n made t her e i n r e gar d in g the issue of
ownership would merely be provisional and would not bar
or prejudice an action between the same parties involving
title to the land.
886
RUL E 7 0 FO R CI BL E ENTR Y AN D SE C S . 1 2 -14
4. In this same case of Hilario, the Supreme Court

quoted the holding in Wilmon Auto Supply Corporation,
et al. vs. CA, et al. (G.R. No. 97637, April 10, 1992) which
catalogued the cases t hat should not be regarded as pre•
judicial to an eject ment suit, to wit:
"1 . Injunction suit inst it ut ed in the RTC by
defendant s in eject ment actions in the municipal trial
courts or other courts of the first level (Nacorda v.
Yatco, 17 SCRA 920 [1966]) do not abate the latter;
and neit her do proceedings on consignat ion of rent als
(Lim Si v. Lim, 98 Phil. 865 [1956], citing Pue, et al.
v. Gonzales, 87 Phil. 81 [1950]).
2. An 'accion publiciana' does not suspend an
eject ment suit against the plaint iff in the former
(Ramirez v. Bleza, 106 SCRA 187 [1981]).
3. A 'writ of possession case' where ownership
is concededly the principal issue before the Regional
Trial Court does not preclude nor bar the execution
of the judgment in an unlawful detainer suit where
the only issue involved is the material possession or
po s se s s io n de facto of the pr e m is e s (Heir s of
F. Guballa, Sr. v. C.A., et al., etc., 168 SCRA 518
[1988]).
4. An action for quieting of title to property is
not a bar to an eject ment suit involving the same
propert y (Quimpo v. De la Victoria, 46 SCRA 139
[1972]).
5. Suits for specific performance with damages
do not affect eject ment act ions (e.g., to compel
renewal of a lease contract) (Desamito v. Cuyegkeng,
18 SCRA 1184 [1966]; P ar d o de T aver a v.
Encarnacion, 22 SCRA 632 [1968]; Rosales v. CFI,
154 SCRA 153 [1987]; Commander Realty, Inc. v.
C.A., 161 SCRA 264 [1988]).
887
RULE 70 REMEDIAL LAW COMPENDIUM SECS. 12-14
6. An action for reformation of instrument (e.g.,

from deed of absolute sale to one of sale with pacto de
retro, does not suspend an ejectment suit between the
same part ies ( Judit h v. Abragan, 66 SCRA 600
[1975]).
7. An action for reconveyance of property or
'accion reivindicatoria'also has no effect on ejectment
suits regarding the same property (Del Rosario v.
Jimenez, 8 SCRA 549 [1963]; Salinas v. Navarro, 126
SCRA 167; De la Cruz v. C.A., 133 SCRA 520 [1984];
Drilon v. Gaurana, 149 SCRA 352 [1987]; Ching v.
Malaya, 153 SCRA 412 [1987]; Philippine Feeds
Milling Co., Inc. v. C.A., 174 SCRA 108; Dante v.
Sison, 174 SCRA 517 [1989]; Guzman v. C.A.,
[annulment of sale and reconveyance], 177 SCRA 604
[1989]; Demamay v. C.A., 186 SCRA 608 [1990];
Leopoldo Sy v. C.A., et al. [annulment of sale and
reconveyance], G.R. No. 95818, Aug. 1991).
8. Neither do suits for annulment of sale, or title,
or document affecting propert y operate to abate
eject ment act ions respect ing the same propert y
(Salinas v. Navarro [annulment of deed of sale with
assumption of mortgage and/or to declare the same
an equitable mortgage], 126 SCRA 167 [1983]; Ang
Ping v. RTC [annulment of sale and title], 154 SCRA
153 [1987]; Caparros v. CA. [annulment of title], 170
SCRA 758 [1989]; Dante v. Sison [annulment of sale
with damages], 174 SCRA 517; Galgala v. Benguet
Consolidated, Inc. [annulment of document], 177
SCRA 288 [1989])."
5. In Refugia, et al. vs. CA, et al. (G.R. No. 118284,

July 5, 1996), the Supreme Court also discussed in detail
the antecedents and developmental changes culminating
in the express mandate in Sec. 33(2) of B.P. Blg. 129 to
the effect that inferior courts have jurisdiction to resolve
the question of ownership where a determination thereof
888
RUL E 7 0 FO R CI BL E ENTR Y AN D SE C S . 1 2-14
U N L A W F U L D ET AIN E R
is necessary for a proper and complete adjudication of the

issue of possessio n. It, however, laid down cert ain
guidelines to be observed in the implementat ion of t hat
legislative prescript ion, viz.:
(1) The primal rule is t hat the principal issue
must be t hat of possession, and t hat ownership is
merely ancillary thereto, in which case the issue of
ownership may be resolved but only for the purpose
of det ermining the issue of possession.
(2) I t mus t suffic ie nt ly a pp ea r from the
allegat ions of the complaint t hat what the plaintiff
really and pr imar il y seeks is the r est or at io n of
possession.
(3) The inferior court cannot adjudicate on the
nat ure of ownership where the relat ionship of lessor
and lessee has been sufficiently established in the
eject ment case, unless it is duly proved t hat there has
been a subsequent change in or t erminat ion of t hat
relat ionship between the part ies.
(4) The rule in forcible entry cases, but not in
unlawful detainer, is t hat a part y who can prove prior
possession can recover such possession even against
the owner himself, unt il he is lawfully ejected by a
person having a better right, hence if prior possession
may be ascertained in some other way, the inferior
court cannot intrude into the issue of ownership.
(5) Wher e t he quest io n of who ha s pr ior
possessio n hinges on the issue of who the real
owner is, or upon the determinat ion of the validity
and int erpret at ion of the document of title or any
other contract on which the claim of possession is
premised, the inferior court may resolve the issue of
ownership but any such pronouncement on ownership
is merely provisional and does not bar or prejudice
an action between the same parties involving title to
the land.
889
RULE 70 REM EDIAL LAW CO M P EN DIU M SECS. 15. 20
6. The Rule on Summary Procedure applies only to

cases filed before the Metropolit an Trial Courts and
Municipal Trial Courts, pursuant to Section 36 of B.P. Blg.
129. Summary procedure has no application before the
Regional Trial Courts. Hence, when the respondents
appealed the decision of the Municipal Trial Court to the
Regional Trial Court, the applicable rules are those of the
latter court (Jakihaca vs. Aquino, et al., G.R. No. 83982,
Jan. 12, 1990). Thus, while a motion for reconsideration
of the judg me n t of the Municipal Tr ial Court is a
pr o hibit ed p lead in g UNDE R t he Rule on S ummar y
Procedure, a motion for reconsideration may validly be
filed from a decision of the Regional Trial Court in the
exercise of its appellate jurisdiction over decisions of the
inferior courts in ejectment cases (Refugia, et al. vs. CA,
et al., ante).
Sec. 16. Preliminary injunction. — The court may

grant p reli minary injunction, in accordance with
the p rovi si on s of Rule 58 hereof, to p revent the
defendant from commi tt in g acts of di sp osse ssi on
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 issuan ce of a writ of preliminary
m a n d a t o r y i n j u n c t i o n t o re s t o r e hi m i n hi s
p o s s e s s i o n . The cou rt shall d eci d e the mot ion
within thirty (30) days from the filing thereof. (3a)
Sec. 20. Preliminary mandatory injunction in case

of appeal. — Upon motion of the plaintiff within ten
(10) days from the perfection of the appeal to the
Regional Trial Court, the latter may issue a writ of
preli minary mandatory injunction to restore the
plaintiff in possession if the court is satisfied that
890
RUL E 70 FO R CI BL E ENTR Y AN D SE C S . 15, 2 0
the d efen dant' s appeal is frivolous or dilatory, or

t hat the ap p e a l of the p l a i n t i f f i s prima facie
meri t ori ou s. (9a)
NOTES
1. For correlat ion, Secs. 15 and 20, both being on

the mat t er of preliminar y injunction in ejectment cases,
are discussed joint ly.
2. Under the Civil Code and the 1964 Rules of Court,
preliminar y mandatory injunction was available at the
st art of the action but only in forcible entry cases (see
Art. 539, Civil Code; cf. Sec. 88, R.A. 296 which also spoke
only of forcible entry). On appeal, provided the conditions
in the former Sec. 9 of this Rule were present, preliminary
ma ndat or y injunct ion was available only in unlawful
det ainer cases, as said Sec. 9 referred to a lessor and a
lessee (see Art. 1674, Civil Code; Dayao vs. Shell Co. of
the Phil., Ltd., L-32475, April 30, 1980).
That uncert ain st at e of affairs was sought to be
remedied by Sec. 33(1) of B.P. Blg. 129 (see notes thereon
in t he pr e li m inar y port ion of t his vo lume) to make
preliminary injunction available in both forms of ejectment
suits.
This amended section makes the rule more specific
and clear by providing t hat preliminar y ma ndat o r y
injunct ion shall be available at the st art of the action,
and under the conditions therein, in both forcible entr y
and unlawful det ainer cases. Such preliminar y man•
dat ory injunct ion is also available on appeal to the
Regional Trial Court and there is no distinction as to the
type of eject ment case involved.
Preliminar y prevent ive injunct ion is available in
eit her case as the first paragraph of Section 15 makes the
provisions of Rule 58 applicable to this special civil action.
891
Sec. 16. Resolving defense of ownership. — When

the defendant raises the defense of own ership in his
pleadings and the question of possessi on cannot
be resolved without deciding the issue of ownership,
the issue of own ersh i p shall be resolved only to
determine the issue of possession. (4a)
NOTES
1. Ejectment suits under this Rule essentially involve

the issue of physical or material possession over the real
property subject of the action. This amended section,
which is based on the provisions of Sec. 33(2), B.P. Blg. 129, contempla
ejectment from the disputed premises not by claiming only
a right of physical possession but also the ownership
thereof; and (2) the question of possession can be resolved
only by deciding the issue of ownership. The solution
under this section is to resolve the issue of ownership but
only to determine the issue of possession. This must be so
because the issue of ownership cannot be definitively
decided in this special civil action, and the trial court does
not have the jurisdict ion to decide the issue of title to the
land. However, since the defendant anchors the legality
of his material possession of the property on a claim of
title, the court can, at least prima facie, determine the
plausibilit y or validit y of his basic claim on which he
justifies his right to possess. Otherwise, the ends of justice
may easily be trifled with by the defendant through the
simple expedient of claiming title to the property, no matter
how outrageous, and then challenging the jurisdiction of
the trial court in order to delay the disposit ion of a
summary proceeding.
2. This is decidedly an impr o vement over the

provisions of the former Sec. 4 of this Rule to the effect
t hat evidence of t itle to real propert y involved in an
ejectment case may be received solely for the purpose of
892
det er mining the character and extent of possession and

damages for detent ion. Nonetheless, despite such seeming
limit at ions, the former rule also served its purpose as
shown in the following doctrines handed down pur suant
thereto.
3. Allegat io ns of ownership are not r equir ed in

eject ment suit s as the only issue is physical possession.
However, such allegat ions eit her by the plaintiff or the
defendant do not oust the court of jurisdict ion provided
the purpose thereof, and the reception of evidence thereon,
is only to prove the character and extent of possession
and the damages for the detent ion (Subano vs. Vallecer,
105 Phil. 1264 fUnrep.J). Formerly, Sec. 31(c), R.A. 5967,
granted jurisdict ion to the then City Courts to decide the
quest ions of physical possession "in conjunction wit h" the
issue of ownership in the same action (cf. Pelaez vs. Reyes, L-
48168, Aug. 31, 1978), but this has been eliminated by
B.P. Blg. 129. See note 7 under Sec. 2 of this Rule.
4. Thus, where the defendant has entered upon a

portion of the propert y of the plaintiff, the lat t er can
introduce in evidence his muniment s of title to show t hat
said portion is embraced wit hin his property which he
possesses, as his purpose is merely to show the extent of
his possession consequent to his ownership of the ent ire
parcel of land (see Mediran vs. Villanueva, 37 Phil. 752).
Evidence of such title may also be introduced to show t hat
the plaintiff is the possessor of the land by reason of his
ownership thereof, or as the lawful t enant or lessee of the
owner, or pursuant to a right contingent upon the fact of
ownership of another, as, in said cases, the title is being
introduced just to show in what character or under what
right the plaintiff is in possession of the premises.
5. Where the issues in the inferior court do not only
raise the question of the possession of the lot but also the
rights of the parties to the building constructed thereon
and for the recovery thereof, jurisdiction is vested in the
893
RULE 70 REM EDIAL LAW CO M P END IU M SECS. 17-18
Regional Trial Court as it is not one for ejectment but

for specific performance (Chua Peng Hian vs. CA, et al.,
G.R. No. 60015, Dec. 19, 1983). Where, however, the
defendant has built a substant ial building on plaintiffs
land and there is no dispute as to the ownership of either
said land or building by the parties, the inferior court does
not lose jur isdict ion over the eject ment case and can
adjudicate the rights of the parties thereover in accordance
with the Civil Code (Alvir vs. Vera, et al., L-39338,
July 16, 1984; De la Santa vs. CA, et al., L-30560 and L-
31078, Nov. 18, 1985).
Sec. 17. Judgment. — If after trial the court finds

that the allegat ion s of the complaint are true, i t
shall render judgment in favor of the plaintiff for
the restitution of the premises, the sum justly due
as arrears of rent or as reason ab le compen sation
for the us e an d o c c u p a t i o n o f the p re m i s e s ,
at t orn ey' s fees and cost s . If i t finds that said
allegation s are not true, it shall render judgment
for the d e f e n d a n t to re c o v e r hi s c o s t s . I f a
count erclai m is estab lish ed, the court shall render
judgment for the sum found in arrears from either
party and award costs as justice requires. (6a)
Sec. 18. Judgment conclusive only on possession; not

conclusive in action involving title or ownership. — The
judgment s 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 had in the court of origin and
894
RUL E 70 FO R CI BL E ENTR Y AN D SE C S . 1 7 -18
such memo ran d a and/or briefs as may be su b mitt ed

by the p art i es or req ui red by the Regional Trial
Court. (7a)
NOTES
1. Sec. 17, with some st ruct ur al r ear r ange me nt ,

remains subst ant ially the same as the former Sec. 6 of
this Rule.
2. Sec. 18 is virtually a reproduction of the former

Sec. 7 of this Rule, but with two major changes. From
the first paragraph, t hat portion affecting the rule on
conclusiveness of judgment has been deleted, for reasons
hereaft er discussed in Note 8 hereof. Also, a second
p a r a g r a p h has been added, spelling out the specific
appellate procedure and requirement s for the elevation of
the case to the Regional Trial Court. This also has the
effect of r e m i nd i n g all co ncer ned t hat the appea l,
regardless of the issues involved should always be brought
to the appropriat e Regional Trial Court.
3. Formerly, the City Courts, but not the ordinary
municipal courts, could actually determine the issue of
title where such issue is raised in the proceedings in an
eject ment suit before it (Sec. 3[c], R.A. 5967). Appeal
from the decision t herein could be taken to the Court of
Appeals (Pelaez us. Reyes, L-48168, Aug. 31, 1978) within
the t he n 30-day r eg le me nt ar y period under Sec. 3 ,
Rule 41 (Contreras us. Villaraza, et al., G.R. No. 53372,
Aug. 21, 1980; Nogoy vs. Mendoza, G.R. Nos. 54324-28,
Nou. 19, 1980). Note, however, the important changes
effected by B.P. Blg. 129, as hereinbefore discussed.
4. In eject ment cases, the inferior court can adjudi•
cate and award actual damages beyond the jurisdictional
limit in ordinar y civil act ions, as the amount of the
monet ary award is immat erial to its jurisdict ion, the
restorat ion of possession being the primary relief sought
895
and to be granted. This is now an explicit rationale of the

summary procedure adopted in this Rule.
However, damages other than reasonable rentals or
fair rental value are not recoverable by plaintiff. Reason•
able attorney's fees may be allowed if the provisions of
Art. 2208, Civil Code, are applicable (De Laureano vs.
Adil, supra; Ramirez vs. Sy Chit, L-22032, Dec. 26, 1967;
Reyes vs. CA, et al., L-28466, Mar. 27, 1971; Baens vs.
CA, et al, G.R. No. 57091, Nov. 23, 1983). It may also be
noted that while Sec. 1 of this Rule speaks of "damages,"
Sec. 6 (now, Sec. 17) thereof uses the phrase "rent or as
reasonable compensation for the use and occupation of
the premises." It has been held that this rule does not
apply against a counterclaim of the defendant wherein
moral damages may be awarded by the inferior court
provided t hat the award should not exceed the amount
within the original jurisdict ion of the inferior court (see
Agustin vs. Bacalan, et al, L-46000, Mar. 18, 1985).
5. The plaintiff, in ejectment cases, is entit led to

damages caused by his loss of the use and possession of
the premises, but not for damages caused on the land or
build ing, which lat t e r it ems of damag es should be
recovered by plaintiff, if he is the owner, in an ordinary
action (Santos vs. Santiago, 38 Phil 575). However, it
has been held t hat plaintiff can recover from defendant
liquidated damages stipulated in the lease contract (Gozon
vs. Vda. de Barrameda, L-17473, June 30, 1964).
6. An action for eject ment is not abat ed by the
deat h of the defendant as the quest ion of damages
must be adjudicated (Tanhueco vs. Aguilar L-30369,
May 29, 1970).
7. The rules of res judicata and conclusiveness of
judgment apply in eject ment suits, but subject to the
qualification that the judgment therein is conclusive only
with respect to the issue of possession of the premises and
896
RUL E 70 FO R CI BL E ENTR Y AN D SE C S . 1 7-18
not with respect to ownership; but it is conclusive with

respect to the right of possession under and by virtue of a
contract the existence of which has been proved in said
eject ment suit (see Penalosa vs. Tuason, 22 Phil. 303).
8. It will be recalled t hat under Sec. 49(c) (now,
Sec. 47[c]) of Rule 39 which e nu nc iat e s the rule of
conclusiveness of judgment, the effect of a judgment on a
subseque nt case bet ween the same part ies but on a
different cause of action is that such judgment is conclusive
upon all mat t ers t hat have been controverted and directly
adjudged or det ermined therein. The former Sec. 7 of
t his Rule was an except ion to such doctrine since it
restricted the binding effect of a judgment in an ejectment
case only to the issue of material possession and, at the
same time, declared t hat it shall not in any manner affect
the title to or the ownership of the propert y involved.
Thus, if a judgment in a forcible entry case held t hat the
defendant had always been in possession of the property,
such a finding had no binding effect in a subsequent case
between the same parties involving the issue of ownership
of the same propert y. Since the second action is based
on a different cause of action, the rule of conclusiveness
of judgment could have applied but, although the issue
of possession had been directly adjudged in the first
case, said former Sec. 7 of this Rule provided t hat such a
finding shall not be held conclusive of the facts therein
found insofar as the second case on title is concerned
(Penalosa vs. Tuason, supra; Cordovis vs. Obias, L-24080,
April 26, 1968).
I t was accordingly decided t hat such except ive
provision of the then Sec. 7 of this Rule on the matter of
the issue of possession should be eliminated to make it
consist ent with the accepted doctrine of conclusiveness of
judgment. There is no reason why the issue of possession
which was duly litigated before and decided with finality
by a municipal trial court in a full-blown proceeding in an
897
RULE 70 REM EDIAL LAW COMPENDIU M SEC8 . 17-18
ejectment suit should not be conclusive upon the parties if

raised in another action between them on a different cause
of act ion. A summar y procedure is a duly recorded
adversarial proceeding and the municipal trial courts have
long since become courts of record.
Consequently, the last sentence of the former Sec. 7
was reproduced in the present Sec. 18, as it now stands,
which reads: "Such judgment shall not bar an action
between the same part ies respecting title to the land," for
reasons earlier reit erat ed. The cont inuat ion of t hat
sentence stating "nor shall it be held conclusive of the facts
therein found in a case between the same parties upon a
different cause of action not involving possession" was
deleted. The result is that, under the present Rule, the
pronouncements in the ejectment suit regarding the issue
of ownership, being merely prima facie since they were
made only to determine the issue of possession, would not
be binding on the parties in a subsequent action over the
title to the same land. However, the findings in the first
case on the questions of material possession would bind
the par t ie s in t he second suit , UNDER the rule of
conclusiveness of judgment.
9. Actions for unlawful detainer, including an accion

publiciana, cannot be barred by the pendency of a land
registration case between the same parties as the first
involves the issue of possession and the latter is on the
issue of ownership. There is no identity of causes of action
or of the reliefs prayed for and a judgment in one cannot
constitute res judicata on the other (Medina vs. Valdellon, L-
38510, Mar. 25, 1975).
10. Where the party sought to be ejected under a writ

of execution was not impleaded in the action and is a total
stranger to the defendant, certiorari will lie as, not being
a party to the action, he cannot appeal from the judgment
rendered therein (Sta. Ana vs. Sunga, et al., L-32642,
Nov. 26, 1973).
898
11. A judgment in an eject ment suit is binding not

only upon the defendants in the suit, but also against those
not part ies t hereto, if they are:
(a) Trespassers, squatters or agents of the defendant
fr audulent ly occupying t he propert y to fr ust r at e the
judgment (Santiago vs. Sheriff, 77 Phil. 740);
(b) Guests or other occupants of the premises with
the permission of the defendant (Gozon vs. De la Rosa, 77
Phil. 919);
(c) Transferees pendente lite (Planas, et al. vs.
Madrigal & Co., 94 Phil. 754);
(d) Sublessees (Go King vs. Geronimo, 81 Phil. 445;
Guevara Realty, Inc. vs. CA, et al., G.R. No. 57469,
April 15, 1988);
(e) Co-lessees; and
(f) Me mber s of the family, r e lat ives and ot her
privies of the defendant (Ariem vs. De los Angeles, et al., L-
32164, Jan. 31, 1973).
Sec. 19. Immediate execution of judgment; how to

stay same. — If ju d gmen t is rend ered agai n st the
defendant, execu t i on shall issue immediately upon
motion, unless an appeal has been perfected and the
d e f e n d a n t to sta y e x e c u t i o n fi les a s u f f i c i e n t
su p ersed ea s bond, approved by the Municipal Trial
Court and execu ted in favor of the plaintiff to pay
the rent s, d amages, and costs accru in g down to the
time of the j u d gmen t app ealed from, and u n less,
durin g the p en d en cy of the appeal, he d eposit s with
the appellate court the amount of rent due from time
to time under the contract, if any, as det ermi ned by
the j u d gmen t of the Municipal Trial Court. In the
ab sen c e of a cont ract, he shall d ep osi t with the
Regional Trial Court the reasonab le value of the
use and occupation of the premises for the preceding
899
RULE 70 REM EDIAL LAW CO M PEN DI U M SEC. 19
mont h or period at the rate d et e rmi n ed by the

judgment of the lower court on or before the tenth
day of eac h s u c c e e d i n g mont h or p eri od. The
s u p e r s e d e a s bond sh all be t ra n s m i t t e d by the
Municipal Trial Court, with the other papers, to the
clerk of the Regi on a l Trial Court to whi c h the
action is appealed.
All amounts so paid to the appellate court shall
b e d e p o s i t e d wit h sai d Cou rt o r a u t h o ri z e d
gov e rn me n t d ep osi t ory bank, and shall be held
t here until the final d i sp o si t i o n 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
r e a s o n s sh a l l d e c re e o t h e r w i s e . S h ou l d the
d e f e n d a n t fai l t o mak e the p a y m e n t s ab ov e
prescribed from time to time du ring 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 resp ect to the restoration of possession, but
such execu t i o n shall not be a bar to the appeal
taking its course until the final disp osi tion thereof
on the merits.
After the case is decided by the Regional Trial
Court, any money paid to the court by the defendant
for p u rp o s e s of the stay of e xe c u t i o n shall be
disposed of in accordance with the provisions of the
judgment of the Regional Trial Court. In any case
wh erei n i t app ears that the d efen dan t 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 dep rivation of possession and restoration
of possession may be allowed the defendant in the
judgment of the Regional Trial Court disposing of
the appeal. (8a)
900
RULE 70 FORCIBLE ENTRY AND SEC . 19
UNLAWFUL DETAINER
NOTES
1. This section is a copy of Sec. 8 of the former Rule,

except for the updated nomenclature of the courts and
the amendment t hat rentals paid dur ing the pendency of
the appeal in the Regional Trial Court shall be deposited
in t he same court , or in an aut hor ized go ver nment
depository bank and not in the provincial or city treasur y.
2. Execution pending appeal in ejectment cases is
governed by Sec. 8 (now, Sec. 18) of Rule 70, not by Sec. 2
of Rule 39. The lat t er provision requires good reasons
before a writ of execution can be issued in favor of the
prevailing part y and is subject to the sound discretion of
the court. Its counterpart under this Rule does not require
the showing of good reasons as it is a matt er of right
(San Miguel Wood Products, Inc. vs. Tupas, et al.,
A.M. No. MTJ-93-892, Oct. 25, 1995).
3. The order for the issuance of a writ of execution

to immediately enforce the judgment of the inferior court
is int erlocutory and not appealable (De Po vs. Moscoso,
93 Phil. 427). The same rule applies in both types of
eject ment suit s. Also, the fact that the decision of the
court a quo in eject ment cases is immediately executory
does not mean t hat notice of the motion to the adverse
part y is unnecessary. A party would not be in a position
to stay execution unless he is notified of the filing of t hat
motion for execution (Kaw vs. Anunciacion, Jr., etc., et
al, A.M. No. MTJ-93-811, Mar. 1, 1995).
4. Immediate execution is proper if the judgment is
in favor of the plaintiff. If the judgment is in favor of the
d e fe nd a n t wit h an award for da mag e s UNDE R his
counterclaims, such judgment is not immediately executory
and can be executed only after the lapse of the 15-day
period to appeal without the plaintiff having perfected his
appeal.
901
RULE 70 REM EDIAL LAW C O M P END IU M SEC . 19
In City of Manila, et al. vs. CA, et al. (L-42364,

April 9, 1987), it was held t hat Sec. 8 (now, Sec. 19), Rule
70, on execution pending appeal, also applies even if it is
the plaintiff-lessor who appeals where, as in that case,
judgment was rendered in favor of the lessor but it was
not satisfied with the increased rentals granted by the
trial court, hence the appeal for a further increase thereof.
In such a sit uat ion, the lessor-appellant may ask for
execution pending appeal and if the lessee desires to stay
such execution, he must file the supersedeas bond and
deposit the accruing rentals. Otherwise, the lessee could
cont inue occupying t he pr emises wit hout filing the
super sedeas bond and making the necessary deposit
despite the fact that, by his failure to appeal, said lessee
does not question the accrued and the incoming rents.
Such continued stay on the premises and acquiescence to
the new rates by the lessee could also constitute a "good
reason" authorizing an execution pending appeal under
Sec. 2, Rule 39.
5. To stay the immediate execution of judgment in

eject ment proceedings, these sections require that the
defendant-appellant must (a) perfect his appeal, (b) file a
supersedeas bond, and (c) periodically deposit the rentals
falling due during the pendency of the appeal.
The appeal should be perfected in the same manner
as in ordinary civil actions, that is, by filing a notice of
appeal and paying the appellate court's docket fee, as
provided in Rule 40, within 15 days from notice of the
judgment.
The supersedeas bond may be in cash or by surety
bond (De Laureano vs. Adil, L-43345, July 29, 1976) and
since its purpose is to answer for the rents, damages and
costs accruing down to the judgment of the inferior court
appealed from (Bagtas vs. Tan, 93 Phil. 804), it must be
in the amount determined by the judgment of the lower
court. Attorney's fees awarded in said judgment need
902
not be covered by a supersedeas bond (Once vs. Gonzales,

et al., L-44806, Mar. 31, 1977).
The periodic deposit of future rentals is to ensure the
payment of rent als accruing after the judgment of the
inferior court and until the final judgment on appeal. It
shall be in the amount determined by the inferior court
eit her on the basis of the lease contract, or, in forcible
entry cases, the reasonable value for the use or occupation
of the premises (Sec. 8). The Court of First Instance has
no power to increase or reduce the amount fixed by the
inferior courts as the reasonable rent or compensat ion for
the premises pending decision of the appeal. Whet her
the amount fixed by the inferior court is correct or not will
have to be passed upon by the Court of First Instance in
deciding the appealed case (Estella vs. CA, et al., G.R.
No. 56284, Jan. 30, 1982).
6. Consequent ly, the filing of a supersedeas bond is
not required to stay execution on appeal (a) where the
monetary award in the judgment of the inferior court has
been deposited with said court (Castureras vs. Bayona,
106 Phil. 340), and (b) where the judgment of the lower
court did not make any findings with respect to any
amount in arrears, damages or costs against the defendant.
7. The supersedeas bond must be filed in the lower
court but the Court of First Instance, in its discretion and
upon good cause shown, may allow the defendant to file
t hat bond in the latter court (Tagulimot vs. Makalintal,
85 Phil. 40).
The requirement for the filing of a supersedeas bond
is mandatory and if the bond is not filed, the execution of
the judgment is a mandatory and ministerial duty of the
court (Fuentes vs. Bautista, et al., L-31351, Oct. 26, 1973).
Even if appeal has been perfected and a supersedeas bond
has been filed but the accruing rent als are not duly
deposited, immediate restoration of the premises may still
be obtained as the supersedeas bond answers only for the
903
past rentals as fixed in the judgment of the inferior court

(De Laureano vs. Adil, et al., L-43345, July 29, 1976).
8. In forcible entry, the amount of the supersedeas
bond and the amounts to be periodically deposited by the
defendant to stay immediate execut ion, shall be t hat
det er mined by the inferior court which shall be the
reasonable value of the use and occupancy of the premises.
In unlawful detainer, the amount of the supersedeas bond
and periodic deposit of rentals shall be that stated in the
lease contract.
9. The r ent als accruing dur ing the pendency of
the appeal must be deposited on or before the dates stated
in the contract of the parties, if there is one, and in the
absence thereof, on or before the dates provided for in
Sec. 19, that is, on or before the tent h day of the month
succeeding t hat wher e i n t he r ent a l accrued. The
defendant, however, does not have to make such deposit
where the judgment of the inferior court does not fix the
reasonable compensation or the rentals due (Lunsod vs.
Ortega, 46 Phil. 664) and the Regional Trial Court
cannot supply t hat deficiency on appeal (Felipe vs.
Teodoro, 46 Phil. 409); or where the judgment of the lower
court is only for other items of damages (Inigo vs. Cabrera,
77 Phil. 650); or where the defendant has vacated and is
no longer in occupancy of the premises during the period
of appeal (Mayon Trading Co. vs. Co Bun Kim, 104 Phil.
242).
10. The time for the deposit of rentals as provided in

Sec. 8 (now, Sec. 19) cannot be extended by the Court of
First I nst ance nor can it excuse a default in such
payments, in the absence of fraud, accident, mistake or
excusable negligence. Neit her can the Court of First
Instance modify the amount to be paid as determined by
the inferior court {Lopez, Inc. vs. Phil. & Eastern Trading
Co., 98 Phil. 348). Where such rentals are not deposited
in accordance with now Sec. 19, the plaintiff is entitled to
904
execut ion as a mat t er of right (Chung Ben vs. Co Bun

Kim, 98 Phil. 13; Banzon vs. CA, et al., L-46464, Nov. 21,
1979). This requirement is mandatory (Chieng Hung vs.
Tan Ten, L-21209, Sept. 27, 1967; Base, et al. vs, Leviste,
et al., G.R. No. 52762, Aug. 29, 1980), unle s s the
defendant was prevented from doing so by fraud, accident,
mist ake, excusable negligence, or the occurrence of a
s u p e r ve n i n g eve n t which would mak e exec ut io n
inequit able (De Laureano vs. Adil, supra; Ng Lit, et al.
vs. Llanes, et al., L-49004, Nov. 10, 1982). Such requisit e
deposit of rent als to stay execution cannot be avoided by
the offer or posting by defendant of addit ional bond in
lieu thereof (Phil. Holding Corp. vs. Valenzuela, et al.,
G.R. No. 55972, May 13, 1981).
11. The mere delay on the part of the plaintiff to

apply for immediate execution due to default in the deposit
of r ent a ls does not const it ut e a waiver of such right
to execution (Silva vs. CA, 86 Phil. 599), but if despite
such default of the defendant, the plaintiff accepted the
belated payment of the defendant, then the plaintiff is
deemed to have waived his right to immediat e execution
(Manotok vs. Legaspi, 77 Phil. 523).
12. In the execution of judgment in eject ment cases,
the provisions of Sec. 10(d), Rule 39, to the effect t hat
no i mpr o ve me n t shall be dest ro yed, demo lished or
removed except by special order of the court, is to be
observed. See the cases of Fuentes, et al. vs. Leviste, et
al. (L-47363, Oct. 28, 1982) and Atal Moslem, et al. vs.
Soriano, et al. (L-36837, Aug. 17, 1983) discussed in
Note 3 under Sec. 10, Rule 39.
13. The succeeding Sec. 20 of this Rule has been
discussed earlier, together with Sec. 15 thereof.
Sec. 21. Immediate execution on appeal to Court of

Appeals or Supreme Court. — The j u d gmen t of the
905
Regional Trial Court shall be immedi ately execu•

tory, wi t h ou t prejudice to a further appeal that
may be taken therefrom. (10a)
NOTES
1. In the former Rule 70, the procedure on appeal

from the decision of the Regional Trial Court to the Court
of Appeals was, with the exception of the need for a
supersedeas bond which was not applicable, virtually the
same as the procedure on appeal to the Regional Trial
Court. Thus, in the contemplated recourses to the Court
of Appeals, the defendant, after perfecting his appeal,
could also pr eve nt the immed iat e execut ion of the
judgment by making the periodic deposit of rentals during
the pendency of the appeal and thereby correspondngly
prevent restitut ion of the premises to the plaintiff who
had already twice vindicated his claim to the property in
the two lower courts.
2. Under the amendatory procedure introduced by
this section, the judgment of the Regional Trial Court shall
be immediately executory and can accordingly be enforced
forthwith. It shall not be stayed by the mere continuing
deposit of monthly rentals by the dispossessor during the
pendency of the case in t he Court of Appeals or the
Supreme Court, although such execution of the judgment
shall be without prejudice to that appeal taking its due
course. This reit erat es Sec. 21 of the Revised Rule on
S ummar y P ro cedur e which r eplaced the appellat e
procedure in and repealed the former Sec. 10 of this Rule.
3. The issue of w het her or not decisions of the
Regional Trial Courts in appealed ejectment cases pending
appeal wit h the Court of Appeals are immediat el y
executory and cannot be stayed has been answered in the
case of Northcastle Properties & Estate Corp. vs. Judge
Paas (A.M. No. MTJ-99-1206, Oct. 22, 1999), upholding
the position that it is the ministerial duty of the Regional
906
U N L A W F U L D ET AIN E R
Trial Court, as appellat e court, to immediately execute its

decision.
It is clear from Sec. 21, Rule 70 t hat it is only the
execution of the Metropolitan or Municipal Trial Court's
judgment pending appeal with the Regional Trial Court
which may be stayed by a compliance with the requisit es
provided in Sec. 19, Rule 70 of the 1997 Rules of Civil
Procedure. On the other hand, once the Regional Trial
Court has r ender ed a decision in the exercise of its
appellat e jur isdict ion, such decision shall, under said
Sec. 21 , be immediat ely executory, wit hout prejudice
to an appeal via a petit ion for review before the Court
of App e a l s (Uy, et al. vs. Santiago, etc., et al.,
G.R. No. 131237, July 31, 2000).
907
RULE 71
CONTEMPT
S ect ion 1. Direct contempt punished summarily.

— A person guilty of misbehavior in the presence
of or so near a court as to obstruct or interrupt the
proceedings before the same, includin g disrespect
toward the court, offen sive p e rson ali t i es toward
oth ers, or refusal to be sworn or to an swer as a
witness, or to subscribe an affidavit or deposition
when lawfully required to do so, may be summarily
adjudged in contempt by such court and punished
by a fine not e xc e e d i n g tw o t h ou san d p eso s or
i mp ri son ment not exceedi ng ten (10) days, or both,
if it be a Regional Trial Court or a court of equi•
valent or higher rank, or by a fine not exceeding
two hundred pesos or i mp ri son ment not exceeding
one (1) day, or both, if it be a lower court, (la)
NOTES
1. This is an exact copy of the former Sec. 1 of this

same Rule, except for the increased penalt ies and the
specification that the "superior court" referred to therein
is the "Regional Trial Court or a court of equivalent or
higher rank," and "lower court" is used instead of "inferior
court."
2. The increased penalt ies for direct contempt
under this section and for indirect contempt in Sec. 3
of this Rule were already imposed by the Supreme Court
in its Ad minist r at ive Cir cular No. 22-95, effective
November 16, 1995. It took judicial notice of the fact
that the penalt ies for contempt in the 1964 Rules of Court
were the same penalt ies imposed in Secs. 1 and 6, Rule 64
of the 1940 Rules of Court, or more than 55 years ago. It
also took cognizance of the fact that the amount of the
908
RULE 71 CONTEMPT SEC. 3
fine is int ended to be the financial equivalent of the term

of impr isonment for the offense, in relat ion to the present
value of our currency which had to be considered in light
of the int ernat ional rates of exchange, the consumer price
index and the minimum wage law.
3. . UNDE R the Rules, cont empt is classified
into direct (Sec. 1) and indirect , or const ruct ive
(Sec. 3), contempt. It may also be classified into criminal
contempt, the purpose of which is to vindicate public
authorit y, and civil contempt, the purpose of which is
to protect and enforce the civil r ight s and remedies
of the lit igant s (see 17 C.J.S. 8). Civil contempt is
the failure to do somet hing ordered by the court for the
benefit of a part y. Criminal contempt is conduct directed
against the dignity or authorit y of the court. Either may
be punished by fine or impr isonment (see Slade Perkins
vs. Dir. of Prisons,
58 Phil. 271; Converse Rubber Corp. vs. Jacinto Rubber,
etc., Inc., L-27425, April 28, 1980).
4. Direct contempt, or contempt in facie curiae, is

committed in the presence of or so near a court or judge
and can be punished summarily without hearing. Indirect
contempt is not committed in the presence of the court
and can be punished only after hearing.
5. The use of co nt empt uous language against a
part icular judge in pleadings presented in another court
or proceeding co nst it ut e s indirect cont empt ; if said
pleading is submitted before the same judge, it would be
direct contempt (Ang vs. Castro, G.R. No. 66371, May 15,
1985). It has, however, been heretofore held that abuses
against a trial judge made in an appeal is a contempt of
the appellat e court, not of the trial court, hence the
former has the authorit y to deal with such contumacious
conduct (People vs. Alarcon, 69 Phil. 265).
6. Because of its punitive aspects, it has been held
that a contempt proceeding is in the nature of a criminal
909
act ion (Villanueva vs. Lim, 69 Phil. 654) and the

procedural and evident iar y rules in criminal actions
are applied as far as applicable (Lee Yick Hon vs. Collector
of Customs, 41 Phil. 548; Fuentea, et al. vs. Leviste, et al., L-
47363, Oct. 28, 1982). Doubts should be resolved in favor
of the person charged with contempt (Concepcion vs.
Gonzales, L-15638, April 26, 1962). The rules of procedure
governing cr iminal cont empt proceedings are ordinarily
inapplicable to civil contempt proceedings (Rosario Textile
Mills, Inc., et al. vs. CA, et al.,
G.R. No. 137326, Aug. 25, 2003). In the taxonomy of
cases, however, they are classified as special civil actions.
7. Courts should be slow to punish for contempt as

t his dr ast ic r emed y should be exercis ed upon the
preservative and not on the vindictive principle (Gamboa
vs. Teodoro, et al., 91 Phil. 270; De Esperagoza vs. Tan,
94 Phil. 749; Victorino vs. Espiritu, L-17735, July 30,
1962).
8. For an ext ensive discussio n of the law and
jur isprudence on contempt, see the Resolution of the
Supreme Court on the contempt incident in People vs.
Godoy/Gacott, Jr. vs. Reynoso, Jr., et al. (G.R.
Nos. 115908-09, Mar. 29, 1995).
Sec. 2. Remedy therefrom. — The person adjudged

in direct con t emp t by any court may not appeal
therefrom, but may avail himself of the remedies
of certiorari or prohibition. The execution of the
judgment shall be su sp en d ed pending resolution of
such petition, provided such person files a bond fixed
by the cou rt whi c h ren d ered the j u d gmen t and
conditioned that he will abide by and perform the
j ud gment should the p etition be decided against
him. (2a)
910
RUL E 71 CONTEM P T SEC . 3
NOTES
1. This amended provision substant ially changes the

procedure under the former Rules. The present remedy
from a judgment holding a person in direct contempt by
any court is the special civil act ion of cert ior ar i or
prohibit ion under Rule 65.
This change has to be emphasized since under the
former Rules, judgment s of municipal courts holding a
person guilty of direct or indirect contempt were appealable
to the Court of First Instance, while judgment s of the
superior courts on direct contempt were not appealable
(Cornejo vs. Tan, etc., 85 Phil. 772). The present uniform
rule has made the procedure more simple and realist ic.
2. It was formerly held t hat a person adjudged by a
Court of First Instance as guilty of direct contempt may
inst it ut e an original act ion for habeas corpus in t he
Supreme Court (Tinagan vs. Perlas, L-23965, Jan. 30,
1968). This was a just ifiable remedy if the penalt y
imposed was i mpr iso nme nt , and not merely a fine,
especially since at t hat time, judgment s of superior courts
on direct contempt were also not appealable. With the
change effected by this amended section, the remedy of
habeas corpus may possibly be availed of in extreme cases
in view of the fact t hat t here is a judicial order of
commit ment and certiorari may lie. Ordinarily, however,
both remedies may not be simultaneously availed of since
certiorari and prohibition presuppose that there is no other
plain, speedy and adequate remedy in the ordinary course
of law, and t hat is not true where habeas corpus can and
has been invoked as another remedy.
Sec. 3. Indirect contempt to be punished after charge

and hearing. — After a charge in writing has been
filed, and an opportunity given to the respond en t
to commen t th ereon within such period as may be
911
RULE 71 REM EDIAL LAW C O M P END IU M SECS. 6-7
fixed by the court and to be heard by himself or

counsel, a person guilty of any of the following acts
may be punished for indirect contempt:
(a) Misbehavior of an officer of a court in the
performance of his official duties or in his official
t ran sact i on s:
(b) Di sob ed i en ce of or resi stan ce to a lawful
wri t , p ro c e s s , ord e r , or j u d g m e n t of a cou rt ,
i n c l u d i n g the act of a p erso n who, after b ein g
d i sp ossessed or ejected from any real property by
the jud gmen t or process of any court of competent
juri sdiction, ent ers or attempts or ind uces another
to enter into or upon such real property, for the
p u rp o s e o f e x e c u t i n g act s o f o w n e r s h i p o r
p o s s e s s i o n , o r i n an y m a n n e r d i s t u rb s the
p o s s e s s i o n give n to the p erso n ad j u d ged to be
entitled thereto;
(c) Any abuse of or any unlawful interference
with the p rocesses or p roceed in gs of a court not
con st i t u t i n g di rect con t emp t under s ecti on 1 of
this Rule;
(d) Any improper conduct tending, directly or
i n d i rect ly, to i mp ed e , ob st ru ct , or d egrad e the
ad min i st rat i on of justice;
(e) Assu min g 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.
But nothing in this section shall be so construed
as to prevent the court from issuing process to bring
the resp ondent into court, or from holding him in
custody pending such proceedings. (3a)
912
RUL E 71 CONTEMP T SEC . 3
NOTES
1. With some minor changes in the phraseology, this

provision is a reproduction of the former Sec. 3 of this
Rule. It is now specified t hat the respondent should
(a) be given an opportunit y to comment on the charge
within such period fixed by the court, and (b) be heard
thereon by himself or counsel.
Thus, the procedur al requisit es for indirect con•
t empt proceedings are (a) a charge in wr it ing or an
order of the court to appear and explain, and (b) an
opportunit y for the respondent to comment on the charge
and to appear and explain his conduct.
2. A contempt case is a special civil action governed
by Rule 71 and by the rules on ordinary civil actions but
only insofar as they are not inconsistent with the rules on
this special civil action. A respondent in a contempt charge
is not required to file a formal answer similar to t hat in
ordinary civil act ions. Instead, the court must set the
contempt charge for hearing on a fixed date on which the
respondent must make his appearance to answer the
charge (Sec. 4). If he shall fail to appear on t hat date
without justifiable reason, the court may order his arrest
(Sec. 9), just like the accused in a criminal case who fails
to appear when so required. The court does not declare
the respondent in a contempt charge in default since this
proceeding partakes of the nature of a criminal prosecution
and should follow a procedure similar thereto (Fuentes,
et al. Leviste, et al., supra).
3. A per so n cannot be punis he d for alleged
disobedience of an order of the court, such as a writ of
execut ion direct ing the sheriff to place the plaintiff in
possession of the property held by said person. Said writ
is addressed to the sheriff, not to that person, and it is the
sheriff who must perform his duty under Sec. 8, Rule 39
and in accordance with the directives contained in the writ
913
(Lipata vs. Tutaan, et al., L-16643, Sept. 29, 1983;

Defalobos vs. Aquilizan, et al, G.R. No. 65831, May 20,
1987; Pascua, et al. vs. Simeon, et al., L-47717, May 31,
1988).
4. Where the contempt is based on the respondent's
refusal to vacate the land despite a writ for his ejectment,
the appeal from the contempt order necessarily involves
or carries with it an appeal from the order to vacate.
However, the perfection of the appeal from the contempt
order will not prevent the execution of the order of eviction
unless t he bond r equir ed by Sec. 11, Rule 71 , has
been seasonably filed (Heirs ofB.A. Crumb vs. CA, et al., L-
26167, Jan. 30, 1970).
5. The Crumb case, however, co nt emp lat es the

situation wherein the occupants of the disputed property
were not defendant s in the original case and had no
opportunity to be heard therein. Where the defendants
in the contempt case were also defendants in the original
case, they are concluded by the final judgment therein,
hence their conviction in a first contempt charge for refusal
to vacate the premises and their appeal therefrom does
not constitute an appeal from the order of eviction and
they can be proceeded against on a second contempt charge
(Dumalagan vs. Palangpangan, L-34095, July 29, 1974).
6. Where, by virt ue of a judgment or order of a

competent court, a lit igant has been placed in possessio n
of real property, the reentry of the adverse party who was
evicted therefrom const itutes contempt under Sec. 3(b)
of this Rule and there is no time limit in which such
reentry constitutes contempt (Medina vs. Garces, L-25923,
July 15, 1980).
7. . Co nt empt by r eent r y upon the land,
under Sec. 3, Par. (b) of this Rule, is punishable
even if no party litigant is adversely affected, as the act
constitutes a defiance of the aut horit y of the court.
Such act of
914
cont empt is punishable even if it t akes place beyond

5 years from the execution of the judgment of eject ment
(Patagan, et al vs. Panis, et al, G.R. No. 55630, April 8,
1988).
Sec. 4. How proceedings commenced. — Proceed •

ings for i nd i rect con t emp t may be ini ti at ed motu
proprio by the cou rt again st whi c h the con t e mp t
was commi t t ed by order or any other formal ch arge
re q u i ri n g the re s p o n d e n t t o show cau s e wh y h e
shou ld not be p u n i sh ed for cont empt.
In all other cases, ch arges for indirect cont emp t
sh all be c o m m e n c e d by a veri fi ed pet i t i o n wit h
su p p ort i n g p art i cu lars and certified true copi es of
d ocu men t s or papers involved therein, and upon full
c o m p l i a n c e wi t h the r e q u i r e m e n t s for f i l i n g
i ni ti atory p lead i n gs for civil act ion s in the court
con ce rn ed . If the cont emp t charges arose out of or
are re lat e d to a p ri n ci p al act ion p en d i n g in the
cou rt, the p et i t i on for con t emp t shall allege that
fact but said p et iti on shall be docket ed, heard and
d eci d ed separately, un less the court in its discretion
orders the con so li d at i on of the con t emp t ch arge s
an d the p ri n c i p a l act i o n for j oin t h e a ri n g and
d eci si on, (n)
NOTE
1. This new provision clarifies with a regulatory norm

the pro pe r pr o cedur e for co mme nc in g co nt e mp t
proceedings. While such proceeding has been classified
as a special civil action under the former Rules, the
heterogeneous practice, tolerated by the courts, has been
for any part y to file a mere motion wit hout paying any
docket or lawful fees therefor and without complying with
the requir ement s for init iatory pleadings, which is now
required in the second paragraph of this amended section.
915
Worse, and as a consequence of unregulated motions for

contempt, said incidents somet imes remain pending for
resolut ion alt hough the main case has already been
decided. There are other undesirable aspects but, at any
rate, the same may now be eliminated by this amendatory
procedure.
Henceforth, except for indirect contempt proceedings
initiated motu proprio by order of or a formal charge by
the offended court, all charges shall be commenced by a
ver ified pet it io n wit h full co mp lia nce wit h the
r eq u ir e me nt s t her efor and shall be disposed of in
accordance with the second paragraph of this section.
Sec. 6. Where charge to be filed. — Where the

charge for indirect contempt has been committed
a g a i n s t a R e g i o n a l Tri al Cou rt or a Cou rt of
eq u i valen t or h i gh er rank, or agai n st 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 Regi on a l Trial Court of the p lace in wh i c h
the lower Cou rt i s si t t in g; but the p ro c e e d i n g s
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 11 of this
Rule. (4a) (As corrected by Resolution of the Supreme
Court, dated July 21, 1998)
NOTE
1. As a rule, the proceeding for indirect contempt

shall be filed in and tried by the court against which the
co nt umac io us conduct was co mmit t ed. There are
exceptions to this procedure, viz.:
(a) Indirect contempt committed against an inferior
court which may also be filed in and tried by a Regional
Trial Court regardless of the imposable penalty (see also
916
RUL E 71 CONTEM P T S E C S . 6-7
People vs. Orpilla-Molina, 105 Phil. 362); and

(b) Indirect contempt against the Supreme Court
which it may cause to be invest igated by a prosecutor,
with the corresponding charge to be t hereaft er filed in
and tried by a Regional Trial Court (see People vs. De
Luna, 102 Phil. 968), or for hearing and recommendat ion
where the charge involves quest ions of fact (Estrada vs.
CAR, L-17481 and L-17537-59, Sept. 24, 1962).
The S upr eme Court, however, absent any factual
controversy to be resolved or under the res ipsa loquitur
rule, may dispense with any referral and decide the case
after grant ing the respondent the opportunit y to comment
and appear, as it has done in some cases of palpable
contumely.
Sec. 6. Hearing; release on bail. — If the h eari n g

is not ord ered to be had forthwith, the resp on d en t
may be re lea sed from cu st od y upon filing a bond, in
an amou n t fixed by the court, for his ap p earan ce
a t the h e a r i n g o f the c h a rg e . O n the da y se t
therefor, the court shall p roceed to in vest igat e the
ch arge and con si d e r such comment, t est i mon y or
d efen se as the re sp on d en t may make or offer. (5a)
Sec. 7. Punishment for indirect contempt. — If the

re sp on d en t is adjudged guilty of indirect cont empt
commi tt ed again st a Regional Trial Court or a court
of eq u i valen t or higher rank, he may be pun i sh ed
by a fine not exc eed i n g thi rty t h ou san d pesos or
i mp ri son ment not exceed in g six (6) months, or both.
If he i s adj u d ge d guilty of con t emp t com m i t t e d
agai n st a lower court, he may be pu ni shed by a fine
not exceed i n g five thousand pesos or imp ri son men t
no t e x c e e d i n g on e (1) mon t h , or both . I f the
c o n t e m p t c o n s i s t s in the vi o lat i o n of a writ of
injunction, temporary rest raining order or status
quo order, he may also be ordered to make comp lete
917
RULE 71 REM EDIAL LAW COMPENDIU M SECS. 8-9
restitution to the party injured by such violation

of the property involved or such amount as may be
alleged and proved.
The writ of e xe c u t i o n , as in ord i n ar y civil
a c t i o n s , sh al l i s su e for the e n f o r c e m e n t of a
judgment imposing a fine unless the court otherwise
provides. (6a)
NOTES
1. The penalt ies for indirect contempt under the

amended provisions of Sec. 7 have been increased for the
r easo ns e xp la ined by t he S upr e me Court in its
Administrative Circular No. 22-95. Incidentally, it will
be noted that the penalties for indirect contempt are higher
than those for direct contempt, in consideration of the
nature of the acts committed.
2. The text of the former Sec. 6 of this Rule has
been su bst ant ia l l y reproduced, wit h the addit ion of
temporary rest raining orders and status quo orders as
among the court processes the violation of which constitute
contempt.
Sec. 8. Imprisonment until order obeyed. — When

the contempt con si st s in the refusal or omission to
do an act which is yet in the power of the respondent
to perform, he may be imprisoned by order of the
court concerned until he performs it. (7a)
Sec. 9. Proceeding when party released on bail fails

to answer. — When a resp on d ent released on bail
fails to appear on the day fixed for the hearing, the
court may issue an ot h er order of arrest or may
order the bond for his appearance to be forfeited
and c o n f i s c a t e d , or both; and , i f the bond be
proceeded against, the measure of damages shall be
the extent of the loss or injury su stai ned by the
918
RUL E 71 CONTEM P T SE C S . 10-11
agg ri ev e d party by reason of the mi sc on d u c t for

wh i c h the con t emp t charge was p rosecut ed, with
the costs of the p roceedi ngs, and such recovery shall
be for the benefit of the party injured. If there is
no agg ri ev e d party, the bond shall be liab le and
d i sp osed of as in crimin al cases. (8a)
Sec. 10. Court may release respondent. — The court

wh i c h i ssu e d the order i mp ri son i n g a p erson for
con t emp t may d i sch arge him from imp ri son m en t
wh e n i t ap p ear s that publi c i n t ere s t will not be
p rej udi ced by his release. (9a)
Sec. 11. Review of judgment or final order; bond

for stay. — The ju d gmen t or final order of a court in
a case of in di rect cont empt may be app ealed to the
proper cou rt as in cri minal cases, but execu t i on of
the j u d gmen t or final order shall not be su sp en d ed
unti l a bond is filed by the p erso n ad j u d ge d in
con t e mp t , in an amou n t fixed by the cou rt from
wh ic h the appeal i s taken, con di ti on ed that i f the
appeal be d ecid ed again st him he will abide by and
perform the j u d gmen t or final order. (10a)
NOTES
1. As a me nd ed , Sec. 8 now allo ws any co urt

concerned, and not only a superior court, to imprison the
disobedient respondent until he performs the act ordered
by the court . As held by the S upr eme Court, such
i mpr iso nme nt is remedia l in nat ur e and coercive in
charact er. It relat es to somet hing to be done by the
respondent and by doing the same he can obtain his
discharge. In effect, under such cir cumst ances, the
respondent "carries the keys to his prison in his own
pocket" (Galvez vs. Republic Surety & Insurance Co., Inc.,
105 Phil. 944; cf. Quinio vs. CA, et al, G.R. No. 113867,
July 13, 2000).
919
RULE 71 REMEDIAL LAW COMPENDIUM SECS. 10-11
2. Sec. 8, however, does not apply to a situat ion

wherein t enant s refused or failed to pay their rentals to
the special administratrix of the property as ordered by
the court. Alt hough they explained t hat they were
uncertain as to whom to pay their rentals, aside from their
financial incapacity, they were ordered arrested for not
complying with the court order. The Supreme Court held
that the non-payment of the rentals, which is a civil debt,
is covered by t he co nst it ut io na l gu ar a nt e e against
imprisonment.
Furt her mo re, the subject order issued under the
authorit y of Sec. 8, Rule 71 is not a special judgment
enforceable under Sec. 11, Rule 39, or execut ion of
judgment for specific acts which is regulated by Sec. 10 of
the same Rule. The trial court could have had its order
executed in accordance with the provision of said Sec. 9 of
Rule 39 but it had no power to order the arrest and
detention of said tenant s.
3. Appeals from municipal courts to the Court of
First Instance in contempt proceedings, and those from
the Court of First Instance to the higher courts, shall be
perfected as in criminal cases, that is, by merely filing a
notice of appeal wit hin 15 days from promulgat ion of
judgment, with such period interrupted by a motion for
new trial seasonably filed (J.M. Tuason & Co., Inc. us.
Familara, et al., L-24934, Sept. 28, 1968). In both cases,
the judgment shall be suspended provided the appellant
files the corresponding bond required by the Rules in the
amount fixed by the courts whose judgment s are appealed
from.
4. A judgment holding a person in contempt, when
appealable, is subject to review in the manner provided
for review of judgment s of conviction in criminal cases
(Perkins us. Director of Prisons, 58 Phil. 271).
920
5. As in cr imina l cases, a judgment absolving a

person charged with criminal contempt or dismissing the
contempt charged is not appealable (Pajao vs. Provincial
Board of Canvassers of Leyte, 88 Phil. 588; Mison vs.
Subido, L-27704, May 28, 1970), unless, as in criminal
cases, t here has been no adjudication on the mer it s but
only a dismissal on motion of the person charged based on
jurisdict ional grounds (Amoren vs. Pineda, et al., L 23666,
Sept. 23, 1967); but these rulings do not apply to civil
contempt (Converse Rubber Corp. vs. Jacinto Rubber, etc.,
supra) and appeal lies from the order finding the defendant
guilty or absolving him of the charge.
Sec. 12. Contempt against quasi-judicial entities.

— Un less ot h erwi se p rovid ed by law, this Rule shall
ap p l y t o c o n t e m p t c o m m i t t e d a g a i n s t p e r s o n s ,
ent it ies, bodies or agenci es exerci si ng quasi-judicial
fu n ct ion s, or shall have supp let ory effect to such
r u l e s a s t h e y ma y h av e a d o p t e d p u r s u a n t t o
a u t h o ri t y gran t e d to t h e m by law to p u n i s h for
con t emp t . The Regi on al Trial Court of the place
w h e re i n the cont emp t has been commi t t ed shall
have ju ri sdi ct ion over such charges as may be filed
therefor, (n)
NOTES
1. This new section was necessitated by the holdings

t hat the former Rule 71 applied only to superior and
infer io r co urt s and did not co mpr e he n d co nt emp t
co mm it t ed agains t ad m in is t r at iv e or quasi- jud ic ia l
officials or bodies, unless said co nt empt is clear ly
co ns id er e d and expr es s l y defined as co nt emp t of
court, as was done in Sec. 580 of the former Revised
Ad minist r at ive Code. The provision referred to con•
templates the situat ion where a person, without lawful
excuse, fails to appear, make oath, give test imony or
produce documents when required to do so by the official
921
or body exercising such powers. For such violation, said

person shall be subject to discipline, as in the case of
contempt of court, upon application of the official or body
with the Regional Trial Court for the corresponding
sanctions. Other acts or violations cannot be punished as
contumacious conduct by administrat ive or quasi-judicial
ent ities unless the governing law specifically defines such
vio lat ion as co nt empt of court, or it unequivocally
authorizes said official or body to punish for contempt,
providing at the same time the corresponding penalty
(People vs. Mendoza, et al., 92 Phil. 570; see Sec. 13,
Chapter 3, Book VII, E.O. 292 [Administrative Code of
1987]).
2. Under subst ant iall y the same considerations,

it was held t hat a city council does not have the power
to subpoena wit nesses and to punish non-attendance
for cont empt since t her e is neit her a co nst it ut io nal
nor statutory conferment on it of such powers. Unlike
Congress whose contempt power is sui generis and inheres
in it as a coordinate branch of Government, no such power
can be implied in the legislative functions delegated to
local legislative bodies, especially since the contempt power
is essent ially of a judicial nat ure (Negros Oriental II
Electric Cooperative, Inc., et al. vs. Sangguniang
Panlungsod of Dumaguete, et al, G.R. No. 72492, Nov. 5,
1987).
3. This new provision confers contempt power on all

quasi-judicial entit ies or supplement s the rules they may
have adopted pursuant to such power conferred by their
governing law, unless the applicable law ot herwise
provides. This is in effect a remedial measure because of
the inclusion in the former Rule 71 only of the superior
and lower courts, t hus excluding pro tanto the quasi-
judicial entit ies in the exercise of their quasi-judicial, as
distinguished from their quasi-legislative, functions.
922

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RE ME DI AL LAW

1. Classificat ion of courts in the Philippines:

"inferior court" referred to the t hen municipal or city

e. Constitutional courts: Those which owe t heir

of said court en banc may be reviewed by t he Supreme Court

at t hat st age; and concurrent jur isdict ion, somet imes

the Regional Trial Courts; with the Court of Appeals and

6. Me nt io n must also be made of the territorial

courts, since the special court s like the circuit cr iminal

vs. Moir, 36 Phil. 213; Associated Labor Union vs.

10. Requisit es for the exercise of jur isdict io n and how

d. Jurisdiction over the issues of the case: This is

11. . As a gener al proposit ion, t he jur isdict io n of

L-28518, Jan. 29, 1968; People vs. Mariano, et al., L-

13. Where t he co mplaint is for act ual da ma ges of

fees bring t he tot al relief sought to more t han P 10,000

14. The jur isd ict io n of a court, whet he r in cr imina l or

15. The co nst it ut io nalit y of a st at ut e must be

929), Galima vs. CA (L-21046, Jan . 31 , 1966), Antique

Sept. 2, 1983), Florendo, et al. vs. Coloma, et al. (G.R.

of facts. These rulings would st ill apply in cases wher ein

i. The doct rine laid down in Tijam vs. Sibong-

19. S ince a Co urt of F ir s t I ns t a nc e (now, the

which, t herefore, may be waived (Manalo vs. Mariano,

20. . Quest io ns invo lving o wner ship of or tit le to

21 . S t at ut e s r egulat ing t he procedure of the court s

In det er m in i n g w het he r a rule pr escr ibed by the

subst ant ive law by the mere fact t hat it is included in a

1. The st udy of civil procedure includes ordinar y

2. Definit ion of t er ms:

t hrough an estoppel, or by other circumst ances which do

of the Phil. vs. Samson, et al., L-80175, Nov. 28, 1975).

c. Transitory action: One the venue of which is

has been held t hat an action in personam is a proceeding

On the ot her hand, a proceeding quasi in rem is one

Article VI (Legislat ive Depart ment )

Article VII (Execut ive Depart ment )

"Sec. 18. (t hir d par.) The S u pr e me Co ur t ma y

Article VIII (Judicial Depart ment )

"Sec. 5. The Supr eme Court shall have the following

the speedy disposit ion of cases, shall be uniform for

Article IX (Const it ut ional Commissions)

1. See, in t his connect ion, the notes under Sec. 7,

R.A. 296, as ame nd ed by R.A. 5440; Santos, et al. vs.

1. The Judiciar y Reorganizat ion Act of 1980 (Batas

2. . The Co urt of App e a l s wa s r e p la ce d by

However, under Execut ive Order No. 33 (July 28,1986),

a Presiding Just ice and 68 Associat e Just ices, and shall

4. The city courts and municipal courts in the

5. The city courts in other cities which do not now

6. Excepted from t he coverage of the Act are the

courts have been affected by t he jur isdict io nal changes

7. No ment ion is made of the Court of Tax Appeals

the provisions of this Act, and of subpar agr aph (1) of

"(2) Exclusive original jur isdict io n over act ions

1. Unlike the provisions of Sec. 30 of the Judiciar y

jurisdict ion over actions for the annulme nt of judgment s

3. However, by specific provisions of Sec. 9 of this

Furt her mo re, in view of the exclusionary provisio n

5. The exclusive appellat e jur isdict io n of the Court

action or discret ion involves the invest igat ion of facts,

6. It was formerly held t hat the 30-day period to

judicial bodies, Sec. 2 t hereof provides t hat the appea l