JURISTS BAR REVIEW CENTER™
POINTERS ON PROVISIONAL
REMEDIES & SPECIAL CIVIL
ACTIONS
ATTY. VOLTAIRE T. DUANO, LL.M.
SSC-R Law: Ll.B. Valedictorian;
SSC-R Graduate School of Law:
Benemeritus (Magna Cum Laude )
I. PROVISIONAL REMEDIES
A. Nature, purpose, and
jurisdiction over provisional
remedies
Concept of provisional and ancillary
remedies, purpose
GMA Network, Inc. v. National
Telecommunications Commission, G.R.
No. 181789, February 03, 2016
explained the concept of provisional
reliefs or remedies as follows:
Provisional reliefs or remedies
are writs and processes that are
available during the pendency of
the action. (V. Francisco, The
Revised Rules of Court in the
Philippines: Provisional
Remedies, p. 1 [1985]) A litigant
may avail of provisional remedies
to preserve and protect certain
rights and interests pending the
issuance of the final judgment in
the case. (Ibid.) These remedies
are provisional because they are
temporary measures availed of
during the pendency of the
action; they are ancillary because
they are mere incidents in and
are dependent on the result of
the main action. (Calderon v.
Roxas, et al., G.R. No. 185595,
Page 1 of 113
January 9, 2013, 688 SCRA 330,
340)
The ancillary nature of provisional
remedies means that they are
adjunct to the main suit.
(Philippine National Bank v. Court
of Appeals, 353 Phil. 473, 479
[1998]) Consequently, it is not
uncommon that the issues in the
main action are closely
intertwined, if not identical, to the
allegations and counter-
allegations of the opposing
parties in support of their contrary
positions concerning the propriety
or impropriety of the provisional
relief. (Hutchison Ports Phil. Ltd.
v. Subic Bay Metropolitan
Authority, et al., 393 Phil. 843,
859 [2000])
Jurisdiction on preliminary
attachment
1. The courts which grants or issues
a provisional remedy is the court which
has jurisdiction over the main action.
Even an inferior court may grant a
provisional remedy in an action pending
with it and within its jurisdiction. The
court where the case is pending could
be the Municipal Courts (MeTC, MTC
and MCTC) and the Regional Trial
Courts or the Supreme Court under
Section 1, Rule 45.
2. Jurisdiction of MeTC, MTC and
MCTC on provisional remedies
The jurisdiction of Metropolitan
Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial
Courts involving provisional
remedies is supported by Batas That where there are
Pambansa Blg. 129, as amended several claims or causes
by Republic Act No. 7691, as of actions between the
follows: same or different parties,
embodied in the same
Sec. 33. Jurisdiction of complaint, the amount of
Metropolitan Trial Courts, the demand shall be the
Municipal Trial Courts and totality of the claims in all
Municipal Circuit Trial Courts in the causes of action,
Civil Cases.—Metropolitan Trial irrespective of whether the
Courts, Municipal Trial Courts, causes of action arose out
and Municipal Circuit Trial Courts of the same or different
shall exercise: transactions; (as amended
by Sections 3 and 5 of RA
(1) Exclusive original 7691)
jurisdiction over civil
actions and probate
proceedings, testate and 3. The Supreme Court
intestate, including the
grant of provisional A party desiring to appeal by certiorari
remedies in proper cases, from a judgment or final order or
where the value of the resolution of the Court of Appeals, the
personal property, estate, Sandiganbayan, the Court of Tax
or amount of the demand Appeals, the Regional Trial Court or
does not exceed Three other courts whenever authorized by
hundred thousand pesos law, may file with the Supreme Court a
(P300,000.00) or, in Metro verified petition for review on certiorari.
Manila where such The petition may include an application
personal property, estate, for a writ of preliminary injunction or
or amount of the demand other provisional remedies and shall
does not exceed Four raise only questions of law which must
hundred thousand pesos be distinctly set forth. The petitioner may
(P400,000.00), exclusive seek the same provisional remedies by
of interest, damages of verified motion filed in the same action
whatever kind, attorney‟s or proceeding at anytime during its
fees, litigation expenses, pendency, (Section1, Rule 45 as
and costs, the amount of amended by A.M. No. 07- 7-12-sc,
which must be specifically December 12, 2007)
alleged: Provided, That
interest, damages of
whatever kind, attorney‟s
fees, litigation expenses,
and costs shall be
included in the
determination of the filing
fees: Provided, further,

Page 2 of 113
B. PROVISIONAL REMEDIES

As provided under the Rules of Court,

the following are the five (5) provisional
remedies:

1. Preliminary attachment under

Rule 57
2. Preliminary Injunction under
Rule 58
3. Receivership under Rule 59
4. Delivery of personal property
or Replevin under Rule 60
5. Support pendente lite under
Rule 61

Page 3 of 113
1. PRELIMINARY ATTACHMENT 1.3 Two-fold purpose of
attachment according to
jurisprudence
1.1 Preliminary attachment,
defined Two-fold purpose of attachment

In Tsuneishi Heavy Industries (CEBU), The purposes of preliminary attachment

Inc. v. MIS Maritime Corporation, G. R. are:
No. 193572, April 4, 2018 explained the
concept as: A writ of preliminary
(1) to seize the property of the
attachment is a provisional remedy
debtor in advance of final
issued by a court where an action is
judgment and to hold it for
pending. In simple terms, a writ of
purposes of satisfying said
preliminary attachment allows the levy
judgment, as in the grounds
of a property which shall then be held by
stated in paragraphs (a) to (e)
the sheriff. This property will stand as
of Section 1, Rule 57 of the
security for the satisfaction of the
Rules of Court; or
judgment that the court may render in
(2) to acquire jurisdiction over the
favor of the attaching party.
action by actual or
constructive seizure of the
property in those instances
1.2 Writ of attachment, defined
where personal or substituted
service of summons on the
Specifically, attachment is a juridical
defendant cannot be effected,
institution intended to secure the
as in paragraph (f) of the
outcome of the trial, i.e., the satisfaction
same provision.” (Philippine
of the pecuniary obligation really
Commercial International
contracted by a person or believed to
Bank v. Alejandro, G.R. No.
have been contracted by him, either by
175587, September 21, 2007,
virtue of a civil obligation emanating
533 SCRA 738, 751-752)
from contract or from law, or by virtue of
some crime or misdemeanor that he
might have committed. It is enforced 1.4 Grounds upon which
through a writ which is the process attachment may issue
issued at the institution or during the
progress of an action commanding the Grounds upon which attachment may
sheriff or other proper officer to attach issue. — At the commencement of the
property, rights, credits, or effects of action or at any time before entry of
defendant to satisfy the demand of the judgment, a plaintiff or any proper party
plaintiff. [Italics ours supplied] (Sta. Ines may have the property of the adverse
Melale Forest Products Corporation v. party attached as security for the
Macaraig, Jr., 299 SCRA 491, 515 satisfaction of any judgment that may be
[1998]) recovered in the following cases:

a) In an action for the recovery of a

specified amount of money or

Page 4 of 113
 damages, other than moral and
exemplary, on a cause of action
arising from law, contract, quasi-
contract, delict or quasi-delict
against a party who is about to
depart from the Philippines with
intent to defraud his creditors;
b) In an action for money or
property embezzled or
fraudulently misapplied or
converted to his own use by a
public officer, or an officer of a
corporation, or an attorney,
factor, broker, agent, or clerk, in
the course of his employment as
such, or by any other person in a
fiduciary capacity, or for a willful
violation of duty;
c) In an action to recover the
possession of property unjustly or
fraudulently taken, detained or
converted, when the property, or
any part thereof, has been
concealed, removed, or disposed
of to prevent its being found or
taken by the applicant or an
authorized person;
d) In an action against a party who
has been guilty of a fraud in
contracting the debt or incurring
the obligation upon which the
action is brought, or in the
performance thereof;
e) In an action against a party who
has removed or disposed of his
property, or is about to do so,
with intent to defraud his
creditors; or
f) In an action against a party who
does not reside and is not found
in the Philippines, or on whom
summons may be served by
publication. (Section1, Rule 57)
Page 5 of 113
1.5 When to issue an order
granting the issuance of writ of
attachment
When to issue order of attachment
An order of attachment may be issued
either:
1. ex parte; or
2. upon motion with notice and
hearing. (Section 2, Rule 57)
1.6 Rule on ex-parte issuance of
writ of attachment
The case of Davao Light and Power,
Co., Inc. v. Court of Appeals, G.R. No.
93262, November 29, 1991, 204 SCRA
343, laid down the rules on the issuance
of writ of attachment ex-parte:
“x x x
Rule 57 in fact speaks of the grant of the
remedy “at the commencement of the
action or at any time thereafter.” The
phrase, “at the commencement of the
action,” obviously refers to the date of
the filing of the complaint — which, as
above pointed out, is the date that
marks “the commencement of the
action;” and the reference plainly is to a
time before summons is served on the
defendant, or even before summons
issues.
What the rule is saying quite clearly is
that after an action is properly
commenced — by the filing of the
complaint and the payment of all
requisite docket and other fees — the
plaintiff may apply for and obtain a writ
of preliminary attachment upon
fulfillment of the pertinent requisites laid
down by law, and that he may do so at
any time, either before or after service of
summons on the defendant. And this
indeed, has been the immemorial
practice sanctioned by the courts: for
the plaintiff or other proper party to
incorporate the application for
attachment in the complaint or other
appropriate pleading (counter-claim,
cross-claim, third- party claim) and for
the Trial Court to issue the writ ex-parte
at the commencement of the action if it
finds the application otherwise sufficient
in form and substance.
. . . The only pre-requisite is that the
Court be satisfied, upon consideration of
“the affidavit of the applicant or of some
other person who personally knows the
facts, that a sufficient cause of action
exists, that the case is one of those
mentioned in Section 1 (Rule 57), 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 (of attachment) is
granted above all legal counterclaims.” If
the court be so satisfied, the “order of
attachment shall be granted,” and the
writ shall issue upon the applicant‟s
posting of “a bond executed to the
adverse party in an amount to be fixed
by the judge, not exceeding the
plaintiff‟s claim, conditioned that the
latter will pay all the costs which may be
adjudged to the adverse party and all
damages which he may sustain by
reason of the attachment, if the court
shall finally adjudge that the applicant
was not entitled thereto.”
Page 6 of 113
1.7 Rules to dissolve or discharge
a preliminary attachment or
garnishment
The following are the rules on how to
dissolve or discharge a preliminary
attachment or garnishment:
a) the debtor has made the requisite
cash deposit or has posted a
counter-bond or; (Rules of Court,
Rule 57, Sections 2, 5 and 12)
b) the attachment was improperly or
irregularly issued (Rules of Court,
Rule 57, Sec. 13) as where there
is no ground for attachment, or
the affidavit and/or bond filed
therefor are defective or
insufficient;
c) the attachment is excessive, but
the discharge shall be limited to
the excess; (Rules of Court, Rule
57, Sec. 13)
d) the property attachment is
exempt from preliminary
attachment; (Rules of Court, Rule
57, Sections 2 and 5) or
e) the judgment is rendered against
the attaching creditor. (Rules of
Court, Rule 57, Sec. 19)
1.8 Property in custodia legis can
be attached
The provisions of the Rules of Court,
specifically last paragraph of Section 7,
Rule 57, provides for the procedure to
be followed in case what is attached is
in custodia legis. Thus, it is clear that
property under custodia legis is now
attachable, subject to the mode set forth
in said rule. The last paragraph of the
said provision provides as follows:
If the property sought to be attached is
in custodia legis, a copy of the writ of
attachment shall be filed with the proper
court or quasi-judicial agency, and
notice of the attachment served upon
the custodian of such property. (Section
7(e), Rule 57)
1.9 Distinction between
garnishment and attachment
Garnishment has been defined as a
specie of attachment for reaching
credits belonging to the judgment debtor
and owing to him from a stranger to the
litigation. (National Power Corporation v.
Philippine Commercial and Industrial
Bank, G. R. No. 171176, September 4,
2009, 598 SCRA 326, 336) A writ of
attachment is substantially a writ of
execution except that it emanates at the
beginning, instead of at the termination,
of a suit. It places the attached
properties in custodia legis, obtaining
pendente lite a lien until the judgment of
the proper tribunal on the plaintiff‟s
claim is established, when the lien
becomes effective as of the date of the
levy. (Santos v. Aquino, Jr., G. R. Nos.
86181-82, January 13, 1992, 205 SCRA
127, 133-134)
1.10 Other species of attachment
1. Garnishment - has been
defined as a specie of
attachment for reaching
credits belonging to the
judgment debtor and owing to
him from a stranger to the
Page 7 of 113
litigation. (National Power
Corporation v. Philippine
Commercial and Industrial
Bank, G. R. No. 171176,
September 4, 2009, 598
SCRA 326, 336)
2. Levy on execution — It is a
writ issued by a court after
judgment by which the
property of the defendant is
taken into the custody of the
court for the satisfaction of a
judgment that the plaintiff has
secured from the court.
3. Warrant of seizure — It is an
order issued by a court
commanding the sheriff to
take possession of the
personal property, subject
matter of the action, alleged to
be wrongfully detained by
defendant.
4. Warrant of distraint and
levy — This is a writ issued
by any of the quasi-judicial
bodies like the Social Security
Commission or the Bureau of
Internal Revenue, against the
properties of a person for its
failure to remit the premiums
of its employees covered by
the Social Security Act, or for
failure of a property owner to
pay his income or property
taxes.
1.11 Proceedings where property
claimed by third person
Rule on third party claim
Under Section 14, Rule 57, the remedy
of a third person claiming to be the
owner of an attached property are
limited to the following: (1) filing with the
Sheriff a third-party claim, in the form of
an affidavit, per the first paragraph of
Section 14; (2) intervening in the main
action, with prior leave of court, per the
second paragraph of Section 14, which
allows a third person to vindicate his/her
claim to the attached property in the
“same x x x action”; and (3) filing a
separate and independent action, per
the second paragraph of Section 14,
which allows a third person to vindicate
his/her claim to the attached property in
a “separate action.” (first sentence,
Section 14, Rule 57)
1.12 Prior or contemporaneous
service of summons is required
before levy on attachment
No levy on attachment pursuant to the
writ issued under section 2 hereof shall
be enforced unless it is preceded, or
contemporaneously accompanied, by
service of summons, together with a
copy of the complaint, the application for
attachment, the applicant’s affidavit and
bond, and the order and writ of
attachment, on the defendant within the
Philippines. (Section 5, Rule 57)
The requirement of prior or
contemporaneous service of summons
shall not apply in four instances:
(1) where the summons could not
be served personally or by
substituted service despite
diligent efforts, or
(2) the defendant is a resident of
the Philippines temporarily
absent therefrom, or
(3) the defendant is a non-
resident of the Philippines, or
Page 8 of 113
(4) the action is one in rem or
quasi in rem. (last paragraph
Section 5, Rule 57)
1.13 Procedure to claim for
damages due to improper, irregular
or excessive attachment
Procedure to claim damages on account
of improper, irregular or excessive
attachment
a. When to apply for damages
before the trial court
The application for damages the against
attaching party and his surety or
sureties on account of improper,
irregular or excessive attachment must
be filed: (1) before the trial; or (2) before
appeal is perfected; or (3) before the
judgment becomes executory; and (4)
with due notice to the attaching party
and his surety or sureties setting forth
the facts showing his right to damages
and the amount thereof. (first paragraph,
Section 20, Rule 57)
Effect if bond or deposit is insufficient or
fail to satisfy award
Should the bond or deposit given by the
attaching party be insufficient or fail to
fully satisfy the award nothing shall
prevent the party against whom the
attachment was issued from recovering
in the same action the damages
awarded to him from any property of the
attaching party not exempt from
execution. (last paragraph, Section 20,
Rule 57)

When can the trial court award
damages and where included
The court may award damages only
after proper hearing and included in the
judgment on the main case. (first
paragraph, second sentence, Section
20, Rule 57)
b. When to apply for damages
before the appellate court
If the judgment of the appellate court be
favorable to the party against whom the
attachment was issued he must claim
damages sustained during the
pendency of the appeal. (second
paragraph, Section 20, Rule 57)
How to claim damages before the
appellate court
By filing an application in the appellate
court, with notice to the party in whose
favor the attachment was issued or his
surety or sureties before the judgment of
the appellate court becomes executory.
(second paragraph, Section 20, Rule
57)
When trial court to hear and decide
claim for damages filed before appellate
court
The appellate court may allow the
application to be heard and decided by
the trial court. (second paragraph,
second sentence, Section 20, Rule 57)
Page 9 of 113
In Rivera v. Talavera, G. R. Nos.
L-16280 and L-16805, May 30,
1961, the Supreme Court held:
xxx. 2) That where such
application is seasonably made
to the appellate court, the latter
must either proceed to hear and
decide the application or refer the
application to the trial court and
allow it to hear and decide the
same;”
1.14 Party against whom
attachment was issued is entitled to
damages even if judgment is against
him
In interpreting Section 20, Rule 57, the
Supreme Court in the case of Zaragoza
v. Fidelino, G. R. No. L- 29723, July 14,
1988, held that damages may be had by
the party thus prejudiced by the
wrongful attachment, even if the
judgment be adverse to him. The Court
said:
“It thus sums indeed that the first
sentence of Section 20 precludes
recovery of damages by a party
against whom an attachment is
issued and enforced if the
judgment be adverse to him. This
is not however correct. Although
a party be adjudged liable to
another, if it be established that
the attachment issued at the
latter‟s instance was wrongful
and the former had suffered
injury thereby, recovery for
damages may be had by the
party thus prejudiced by the
wrongful attachment, even if the
judgment be adverse to him.
Slight reflection will show the
validity of this proposition. For it
is entirely possible for a plaintiff
to have a meritorious cause of
action against a defendant but
have no proper ground for a
preliminary attachment. In such a
case, if the plaintiff nevertheless
applies for and somehow
succeeds in obtaining an
attachment, but is subsequently
declared by final judgment as not
entitled thereto, and the
defendant shows that he has
suffered damages by reason of
the attachment, there can be no
gainsaying that indemnification is
justly due the latter.”

Page 10 of 113
2. PRELIMINARY INJUNCTION
A preliminary injunction is an order
granted at any stage of an action or
proceeding prior to the judgment or final
order requiring a party or a court,
agency or a person to refrain from a
particular act or acts. It may also require
the performance of a particular act or
acts, in which case it shall be known as
a preliminary mandatory injunction.
(Section 1, Rule 58)
2.1 Kinds of injunction
There are generally two kinds of
preliminary injunction: (1) a prohibitory
injunction which commands a party to
refrain from doing a particular act; and
(2) a mandatory injunction which
commands the performance of some
positive act to correct a wrong in the
past. (Levi Strauss & Co. v. Clinton
Apparelle, Inc., G.R. No. 138900, 20
September 2005, 470 SCRA 236, 252)
While a final injunction under Section 9,
Rule 58 is one issued by the court after
the trial of the action perpetually
restraining the party or person enjoined
from the commission or continuance of
the act or acts of confirming the
preliminary mandatory injunction.
2.2 Distinctions between the main
action for injunction from provisional
or ancillary remedy of preliminary
injunction
The case of Garayblas v. Atienza, Jr.,
G.R. No. 149493, June 22, 2006, 492
SCRA 202 is instructive as to the
Page 11 of 113
distinctions between the main action for
injunction from the provisional or
ancillary remedy of preliminary
injunction as follows:
“Injunction is a judicial writ,
process or proceeding whereby a
party is ordered to do or refrain
from doing a certain act. It may
be the main action or merely a
provisional remedy for and as an
incident in the main action. The
Court has distinguished the main
action for injunction from the
provisional or ancillary remedy of
preliminary injunction, thus:
The main action for injunction is
distinct from the provisional or
ancillary remedy of preliminary
injunction which cannot exist
except only as part or an incident
of an independent action or
proceeding. As a matter of
course, in an action for injunction,
the auxiliary remedy of
preliminary injunction, whether
prohibitory or mandatory, may
issue. Under the law, the main
action for injunction seeks a
judgment embodying a final
injunction which is distinct from,
and should not be confused with,
the provisional remedy of
preliminary injunction, the sole
object of which is to preserve the
status quo until the merits can be
heard. A preliminary injunction is
granted at any stage of an action
or proceeding prior to the
judgment or final order. It persists
until it is dissolved or until the
termination of the action without
the court issuing a final
injunction.” (492 SCRA 217-218)

2.3 Distinctions between
preliminary injunction and final
injunction
The distinctions between preliminary
injunction and final injunction has been
laid down in Urbanes, Jr. v. Court of
Appeals, G.R. No. 117964, March 28,
2001 as follows:
“Rule 58 of the Rules of Court provides
for both preliminary and permanent
injunction. A preliminary injunction is
defined in Section 1 thereof as:
“(A)n order granted at any stage
of an action prior to the judgment
or final order, requiring a party or
a court, agency or a person to
refrain from a particular act or
acts.”
On the other hand, Section 9 of
the same rule defines a
permanent injunction in this wise:
“x x x. If after the trial of the
action it appears that the
applicant is entitled to have the
act or acts complained of
permanently enjoined, the court
shall grant a final injunction
perpetually restraining the party
or person enjoined from the
commission or continuance of the
act or acts or confirming the
preliminary mandatory
injunction.”
By their very definitions, the action for
injunction is distinct from the ancillary
remedy of preliminary injunction which
cannot exist except only as part or an
incident of an independent action or
Page 12 of 113
proceeding. As a matter of course, in an
action for injunction, the auxiliary
remedy of preliminary injunction,
whether prohibitory or mandatory, may
issue. Under the present state of the
law, the main action of injunction seeks
a judgment embodying a final injunction
which is distinct from, and should not be
confused with the provisional remedy of
preliminary injunction, the sole object of
which is to preserve the status quo until
the merits can be heard. (Manila
Banking Corporation v. Court of
Appeals, 187 SCRA 138 [1998])
A writ of preliminary injunction is
generally based solely on initial and
incomplete evidence. The evidence
submitted during the hearing on an
application for a writ of preliminary
injunction is not conclusive or complete
for only a “sampling” is needed to give
the trial court an idea of the justification
for the preliminary injunction pending
the decision of the case on the merits.
(Olalia v. Hizon, 196 SCRA 665 [1991])
As such, the findings of fact and opinion
of a court when issuing the writ of
preliminary injunction are interlocutory in
nature and made even before the trial
on the merits is commenced or
terminated. There are vital facts that
have yet to be presented during the trial
which may not be obtained or presented
during the hearing on the application for
the injunctive writ. The trial court needs
to conduct substantial proceedings in
order to put the main controversy to
rest. (Sto. Tomas University Hospital v.
Surla, 294 SCRA 382 [1998]) It does not
necessarily proceed that when a writ of
preliminary injunction is issued, a final
injunction will follow.” (La Vista Asso.,
Inc. v. Court of Appeals, 278 SCRA 498
[1997])
2.4 Grounds for issuance of
preliminary injunction
A preliminary injunction may be granted
when it is established:
a) That the applicant is entitled to
the relief demanded, and the
whole or part of such relief
consists in restraining the
commission or continuance of the
act or acts complained of, or in
requiring the performance of an
act or acts either for a limited
period or perpetually;
b) That the commission,
continuance or non-performance
of the act or acts complained of
during the litigation would
probably work injustice to the
applicant; or
c) That a party, court, agency or a
person is doing, threatening, or is
attempting to do, or is procuring
or suffering to be done some act
or acts probably in violation of the
rights of the applicant respecting
the subject of the action or
proceeding, and tending to
render the judgment ineffectual.
(Section 3, Rule 58)
2.5 When injunction is not allowed
The injunction is not allowed in the
following cases:
1. Prohibition against
TRO/injunction on freeze order
except issued by the Supreme
Court as provided in the third
paragraph of Section 10 of RA
9160, as amended by RA 10365;
Page 13 of 113
2. Well-settled is the rule that an
injunction cannot be issued to
transfer possession or control of
a property to another when the
legal title is in dispute between
the parties and the legal title has
not been clearly established.
(Cortez-Estrada v. Heirs of
Samut, 491 Phil. 458 [2005];
Borbajo v. Hidden View
Homeowners, Inc., 490 Phil. 724
[2005])
3. Also in The Heirs of the Late
Spouses Laura T Yadno and
Pugsong Mat-an versus Heirs of
the Late Spouses Mauro and
Elisa Anchales, G.R. No. 174582,
October 11, 2012, it was held:
“The long standing doctrine is
that no court has the power to
interfere by injunction with the
judgments or decrees of a court
of concurrent or coordinate
jurisdiction. The various trial
courts of a province or city,
having the same or equal
authority, should not, cannot, and
are not permitted to interfere with
their respective cases, much less
with their orders or judgments. A
contrary rule would obviously
lead to confusion and seriously
hamper the administration of
justice.
4. The existence of a right to be
protected by the injunctive relief
is indispensable. In City
Government of Butuan v.
Consolidated Broadcasting
System (CBS), Inc., G.R. No.
157315, December 1, 2010, 636
SCRA 320 the Court elaborated
on this requirement, viz:
As with all equitable
remedies, injunction must
be issued only at the
instance of a party who
possesses sufficient
interest in or title to the
right or the property
sought to be protected. It
is proper only when the
applicant appears to be
entitled to the relief
demanded in the
complaint, which must
aver the existence of the
right and the violation of
the right, or whose
averments must in the
minimum constitute a injunction cannot be issued
prima facie showing of a
right to the final relief
sought. Accordingly, the
conditions for the issuance
of the injunctive writ are:
(a) that the right to be
protected exists prima
facie; (b) that the act
sought to be enjoined is
violative of that right; and
(c) that there is an urgent
and paramount necessity
for the writ to prevent
serious damage. An
injunction will not issue to
protect a right not in esse,
or a right which is merely
contingent and may never
arise; or to restrain an act
which does not give rise to
a cause of action; or to
prevent the perpetration of
an act prohibited by
statute. Indeed, a right, to
be protected by injunction,
Page 14 of 113
means a right clearly
founded on or granted by
law or is enforceable as a
matter of law. (City
Government of Butuan v.
Consolidated Broadcasting
System (BS), Inc., G.R.
No. 157315, December 1,
2010, 636 SCRA 320,
336-337) [Bold emphasis
supplied])
5. njunction is likewise prohibited
under Sections 55 and 68 of
Republic Act No. 6657 known as
the Comprehensive Agrarian
Reform Law of 1998;
6. Although the general rule is to the
effect that a writ of preliminary
against acts already fait
accompli, (Philippine National
Bank v. Court of Appeals, 353
Phil. 473, 479 [1998])
7. Angeles City v. Angeles City
Electric Corporation, G.R. No.
166134, June 29, 2010: A
principle deeply embedded in our
jurisprudence is that taxes being
the lifeblood of the government
should be collected promptly,
(Filipino Metals Corp. v.
Secretary of the Dept. of Trade
and Industry, 502 Phil. 191, 198
(2005)) without unnecessary
hindrance (Republic v. Caguioa,
G.R. No. 168584, October 15,
2007, 536 SCRA 193, 223-224)
or delay. (Valley Trading Co., Inc.
v. Court of First Instance of
Isabela, Branch II, supra at 500)
In line with this principle, the
National Internal Revenue Code
of 1997 (NIRC) expressly
 provides that no court shall have
the authority to grant an
injunction to restrain the
collection of any national internal
revenue tax, fee or charge
imposed by the code.
(NATIONAL INTERNAL
REVENUE CODE OF 1997,
Section 218) An exception to this
rule obtains only when in the
opinion of the Court of Tax
Appeals (CTA) the collection
thereof may jeopardize the
interest of the government and/or
the taxpayer. (Section 11 of RA
1125, as amended by Section 9
of RA 9282)
8. Decision of Ombudsman in
administrative cases is
immediately executory as held in
the case of Facura v. Court of
Appeals, G.R. No. 166495,
February 16, 2011: The issue of
whether or not an appeal of the
Ombudsman decision in an
administrative case carries with it
the immediate suspension of the
imposed penalty has been laid to
rest in the recent resolution of the
case of Ombudsman v.
Samaniego, G.R. No. 175573,
October 5, 2010, where this
Court held that the decision of the
Ombudsman is immediately
executory pending appeal and
may not be stayed by the filing of
an appeal or the issuance of an
injunctive writ;
9. Injunction against extrajudicial
foreclosure in accordance with
Resolution in A.M. No. 99-10-05-
0, Re: Procedure in Extrajudicial
or Judicial Foreclosure of Real
Estate Mortgages
Page 15 of 113
In resolving the issue of whether or not
the CA erred in finding no grave abuse
of discretion on the part of the RTC
when it granted the respondents‟
application for the issuance of a writ of
preliminary injunction, the Supreme
Court in Philippine National Bank v.
Castalloy Technology Corporation, G.R.
No. 178367, March 19, 2012 said:
xxx
Further to this, the Court‟s intent
to depart from the broad
application of the Almeda ruling
to foreclosure proceedings is
clear from its issuance on
February 20, 2007 of an En Banc
Resolution in A.M. No. 99-10-05-
0, Re: Procedure in Extrajudicial
or Judicial Foreclosure of Real
Estate Mortgages. The resolution
embodies the additional
guidelines intended to aid courts
in foreclosure proceedings,
specifically limiting the instances,
and citing the conditions, when a
writ against foreclosure of a
mortgage may be issued, to wit:
o No temporary restraining order or
writ of preliminary injunction
against the extrajudicial
foreclosure of real estate
mortgage shall be issued on the
allegation that the loan secured
by the mortgage has been paid or
is not delinquent unless the
application is verified and
supported by evidence of
payment.
o No temporary restraining order or
writ of preliminary injunction
against the extrajudicial
foreclosure of real estate
mortgage shall be issued on the
 allegation that the interest on the
loan is unconscionable, unless
the debtor pays the mortgagee at
least twelve percent per annum
interest on the principal obligation
as stated in the application for
foreclosure sale, which shall be
updated monthly while the case
is pending.
o 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, through the Office of the
Court Administrator, quarterly
reports on the progress of the
cases involving ten million pesos
and above.
o All requirements and restrictions
prescribed for the issuance of a
temporary restraining order/writ
of preliminary injunction, such as
the posting of a bond, which shall
be equal to the amount of the
outstanding debt, and the time
limitation for its effectivity, shall
apply as well to a status quo
order.
From these guidelines, it is evident that
a disagreement between the parties as
to the amount of the secured loan that
remains unpaid shall not, by itself,
warrant the issuance of an injunctive
writ to enjoin foreclosure. The guidelines
speak of strict exceptions and
conditions. Even an allegation of
unconscionable interest being imposed
on the loan by the mortgagee shall no
longer suffice to support an injunction.
Furthermore, if under this resolution a
debtor can no longer seek an injunctive
writ by the unsubstantiated claim of full
Page 16 of 113
payment, there is even more reason for
a court not to issue an injunctive writ
when the debtors or mortgagors readily
admit default in the payment of the
secured loan, as in this case.
10. SEC. 10. Prohibition against
temporary restraining order
(TRO) and preliminary injunction.
—Except the Supreme Court, no
court can issue a TRO or writ of
preliminary injunction against
lawful actions of government
agencies that enforce
environmental laws or prevent
violations thereof. (A.M. No. 09-6-
8-SC, Rules of Procedure for
Environmental Cases)
11. Under Rule 3.18. (B) of A.M. No.
07-11-08-SC, the Special Rules
of Court on Alternative Dispute
Resolution, provides: No
injunction of arbitration
proceedings.—The court shall not
enjoin the arbitration proceedings
during the pendency of the
petition. Judicial recourse to the
court shall not prevent the arbitral
tribunal from continuing the
proceedings and rendering its
award.
12. Injunction is prohibited during the
pendency of a special civil action
for certiorari under the Special
Rules of Court on Alternative
Disputre Resolution (A.M. No. 07-
11-08-SC);
13. No injunction allowed on
protection orders under Republic
Act No. 9262 (Garcia v. Drilon,
 G.R. No. 179267, June 25,
2013 )
2.6 Grounds to prove before a writ
of preliminary injunction will issue
In The Incorporators of Mindanao
Institute Inc. v. The United Church of
Christ, G.R. No. 171765, March 21,
2012, 668 SCRA 637, the Supreme
Court ruled on the grounds to prove
before a writ of preliminary injunction will
issue as follows:
“Significantly, Section 3, Rule 58 of the
Rules of Court, enumerates the grounds
for the issuance of a writ of preliminary
injunction:
xxx
Based on the foregoing provision, the
Court in St. James College of
Parañaque v. Equitable PCI Bank G.R.
No. 179441, August 9, 2010, 627 SCRA
328, 344, citing Biñan Steel Corporation
v. Court of Appeals, 439 Phil. 688, 703-
704 (2002); Hutchison Ports Philippines
Ltd. v. Subic Bay Metropolitan Authority,
393 Phil. 843, 859 (2000) ruled that the
following requisites must be proved
before a writ of preliminary injunction will
issue:
(1) The applicant must have a
clear and unmistakable right
to be protected, that is, a right
in esse;
(2) There is a material and
substantial invasion of such
right;
Page 17 of 113
(3) There is an urgent need for
the writ to prevent irreparable
injury to the applicant; and
(4) No other ordinary, speedy,
and adequate remedy exists
to prevent the infliction of
irreparable injury.
[Underscoring supplied]
It bears stressing that to be entitled to
an injunctive writ, the right to be
protected and the violation against that
right must be shown. A writ of
preliminary injunction may be issued
only upon clear showing of an actual
existing right to be protected during the
pendency of the principal action.
(Equitable PCI Bank, Inc. v. OJ-Mark
Trading, Inc., G.R. No. 165950, August
11, 2010, 628 SCRA 79, 88, citing
Borromeo v.
Court of Appeals, G.R. No. 169846,
March 28, 2008, 550 SCRA 269, 280;
Lim v. Court of Appeals, 517 Phil. 522,
527 [2006]) When the complainant‟s
right or title is doubtful or disputed, he
does not have a clear legal right and,
therefore, the issuance of injunctive
relief is not proper. (Barayuga v.
Adventist University of the Philippines,
G.R. No. 168008, August 17, 2011)
2.7 Preliminary injunction not
granted without notice and exception
A writ preliminary injunction cannot be
issued ex-parte
No preliminary injunction shall be
granted without hearing and prior
notice to the party or person
sought to be enjoined. (first
paragraph, first sentence of
Section 5, Rule 58).
When to issue ex-parte temporary
retraining order (TRO)
If it shall appear from facts shown by
affidavits or by the verified application
that great or irreparable injury would
result to the applicant before the matter
can be heard on notice. (first paragraph,
second sentence of Section 5, Rule 58)
Who issues an ex-parte TRO
The court to which the application for
preliminary injunction was made may
issue ex-parte a temporary restraining
order. (first paragraph, second sentence
of Section 5, Rule 58)
Effectivity of TRO issued ex parte
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. (first
paragraph, second sentence of Section
5, Rule 58)
Requirement within twenty-day (20)
period
Within the said twenty-day (20) period,
the court must order said party or
person to show cause, at a specified
time and place, why the injunction
should not be granted and determine
within the same period whether or not
the preliminary injunction shall be
granted, and accordingly issue the
corresponding order. (first paragraph,
third sentence of Section 5, Rule 58)
Who issues the ex parte temporary
restraining order
Page 18 of 113
Subject to the provisions of the
preceding section (section 4 [c], Rule 58
), which means if application is filed in a
multiple-sala court, the executive judge
of a multiple-sala court or the presiding
judge of a single sala court may issue
ex parte a temporary restraining order.
(second paragraph, first sentence of
Section 5, Rule 58)
Under what circumstance
1. If the matter is of extreme
urgency; and
2. The applicant will suffer grave
injustice and irreparable
injury. (second paragraph,
first sentence of Section 5,
Rule 58)
Effectivity of TRO issued by executive
judge of multiple sala or judge of single
sala
Effective for only seventy-two (72) hours
from issuance. The service of summons
and the documents to be served
therewith shall immediately be complied.
(second paragraph, first sentence of
Section 5, Rule 58)
Requirement within seventy-two (72)
hours
Within the aforesaid seventy-two (72)
hours, the judge before whom the case
is pending shall conduct a summary
hearing to determine whether the
temporary restraining order shall be
extended until the application for
preliminary injunction can be heard.
(second paragraph, second sentence of
Section 5, Rule 58)
Total period of effectivity of temporary
restraining order
In no case shall the total period of
effectivity of the temporary restraining
order exceed twenty (20) days, including
the original seventy-two hours provided
herein. (second paragraph, third
sentence of Section 5, Rule 58)
Effect if application for preliminary
injunction is denied or not resolved
In the event that the application for
preliminary injunction is denied or not
resolved within the said period, the
temporary restraining order is deemed
automatically vacated. (third paragraph,
first sentence of Section 5, Rule 58)
Temporary restraining order is not
extendible
The effectivity of a temporary restraining
order is not extendible without need of
any judicial declaration to that effect and
no court shall have authority to extend
or renew the same on the same ground
for which it was issued. (third paragraph,
second sentence of Section 5, Rule 58)
Effectivity of TRO issued by the Court of
Appeals and Supreme Court
By Court of Appeals
If issued by the Court of Appeals or a
member thereof, the temporary
restraining order shall be effective for
Page 19 of 113
sixty (60) days from service on the party
or person sought to be enjoined. (fourth
paragraph of Section 5, Rule 58)
By Supreme Court
A restraining order issued by the
Supreme Court or a member thereof
shall be effective until further orders.
(fourth paragraph of Section 5, Rule 58)
Period to decide the main case
The trial court, Court of Appeals,
Sandiganbayan or Court of Tax
Appeals that issued a writ of
preliminary injunction against a
lower court, board, officer or
quasi-judicial agency shall decide
the main case or petition within
six (6) months from the issuance
of the writ. (last paragraph of
Section 5, Rule 57)
2.8 Meaning of temporary
restraining order
Temporary restraining order is an
interlocutory order issued in a case to
maintain the subject matter of the
controversy in status quo until hearing of
the main petition is held. (Board of
Transportation v. Castro 125 SCRA
410)
2.9 Distinction of temporary
restraining order from preliminary
injunction
While a temporary restraining order is
similar to a preliminary injunction in that
it also restrains the performance of an
act as in a preliminary injunction, the
difference between the two, however, is
that a temporary restraining order is only
a temporary restraint to maintain the
status quo which is issued without
notice to defendant to prevent great or
irreparable injury while a preliminary
injunction which can be issued only
upon due notice to the defendant can
either be a restraint or a requirement to
perform a particular act. (Section 1 of
Rule 58 in relation to Section 5 of Rule
58)
In this regard, the law allows a
temporary restraining order in an
application for injunction if it shall
appear from the facts shown by
affidavits or by the verified complaint
that great or irreparable injury would
result to the applicant before the matter
can be heard on notice but this
temporary restraining order shall be
effective only for a period of twenty (20)
days from service on the party or person
sought to be enjoined. (Section 5 of
Rule 58). In other words, temporary
restraining order may be issued before a
writ of preliminary injunction can be
issued.
2.10 Distinction of temporary
restraining order and status quo
order
In Garcia v. Mojica, G.R. No. 13904,
September 10, 1999 the Supreme Court
had the occasion to discuss the
distinction between a TRO and status
quo order as follows: “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
Page 20 of 113
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 or the
allegations in his pleading did not
sufficiently make out a case for a
temporary restraining order. The status
quo order was thus issued motu proprio
on equitable considerations. Also, unlike
a temporary restraining order or a
preliminary injunction, a status quo
order is more in the nature of a cease
and desist order, since it neither directs
the doing or undoing of acts as in the
case of prohibitory or mandatory
injunctive relief. The further distinction is
provided by the present amendment in
the sense that, unlike the amended rule
on restraining orders, a status quo order
does not require the posting of a bond.”
(citing F.D. REGALADO, I Remedial
Law Compendium 651 [6th Revised Ed.,
1997]).
2.11 Status quo ante order has “the
nature of a temporary restraining
order”
But in Llamzon v. Logronio, G.R. No.
167745, June 26, 2007 the Supreme
Court held that: “Indeed, this Court has
ruled that a status quo ante order has
“the nature of a temporary restraining
order.”
2.12 Violation of TRO is indirect
contempt of court
A violation of a temporary restraining
order constitute indirect contempt under
Section 3 of Rule 71 of the Revised
Rules of Civil Procedure
(Rule 58)

Page 21 of 113
3. Receivership does not require such protection or
preservation, the remedy is not
receivership. (Commodities Storage &
3.1 MEANING OF A RECEIVER Ice Plant Corp. v. Court of Appeals,
G.R. No. 125008, June 19, 1997, 274
The Supreme Court citing Normandy v. SCRA 439, 446-447)
Duque, 29 SCRA 385, 391 [1969]; Cia.
General de Tabacos v. Gauzon, 20 Phil. 3.3 Appointment of receiver
261, 267-268 [1911] in Commodities
Storage & Ice Plant Corp. v. Court of Upon a verified application, one or more
Appeals, G.R. No. 125008, June 19, receivers of the property subject of the
1997, 274 SCRA 439, 446-447 defined action or proceeding may be appointed
receiver as: by the court where the action is pending
or by the Court of Appeals or by the
“A receiver is a person appointed Supreme Court, or a member thereof, in
by the court in behalf of all the the following cases:
parties to the action for the
purpose of preserving and
(a) When it appears from the verified
conserving the property in
application, and such other proof
litigation and prevent its possible
as the court may require, that the
destruction or dissipation, if it
party applying for the
were left in the possession of any
appointment of a receiver has an
of the parties. (Normandy v.
interest in the property or fund
Duque, 29 SCRA 385, 391
which is the subject of the action
[1969]; Cia. General de Tabacos
or proceeding, and that such
v. Gauzon, 20 Phil. 261, 267-268
property or fund is in danger of
[1911]) The appointment of a
being lost, removed, or materially
receiver is not a matter of
injured unless a receiver be
absolute right. It depends upon
appointed to administer and
the sound discretion of the court
preserve it;
(Calo and San Jose v. Roldan, 76
(b) When it appears in an action by
Phil. 445, 453 [1946]; Mendoza v.
the mortgagee for the foreclosure
Arellano, 36 Phil. 59, 63-64
of a mortgage that the property is
[1917]) and is based on facts and
in danger of being wasted or
circumstances of each particular
dissipated or materially injured,
case.” (Duque v. CFI of Manila,
and that its value is probably
13 SCRA 420, 423 [1965]; Ralla
insufficient to discharge the
v. Alcasid, supra, at 625; Lama v.
mortgage debt, or that the parties
Apacible, 79 Phil. 68, 73-74
have so stipulated in the contract
[1947])
of mortgage;
(c) After judgment, to preserve the
property during the pendency of
3.2 Purpose of receivership
an appeal, or to dispose of it
according to the judgment, or to
Its object is the prevention of imminent
aid execution when the execution
danger to the property. If the action
has been returned unsatisfied or

Page 22 of 113
 the judgment obligor refuses to
apply his property in satisfaction
of the judgment, or otherwise to
carry the judgment into effect;
(d) Whenever in other cases it
appears that the appointment of a
receiver is the most convenient
and feasible means of
preserving, administering, or
disposing of the property in
litigation.

During the pendency of an appeal, the

appellate court may allow an application
for the appointment of a receiver to be
filed in and decided by the court of origin
and the receiver appointed to be subject
to the control of said court. (Section 1,
Rule 59)

Page 23 of 113
4. REPLEVIN
4.1 REPLEVIN, DEFINED
Tillson v. Court of Appeals, G.R. No.
89870, May 28, 1991, 197 SCRA 587,
597-598, discusses the term replevin as
follows:
The term replevin is popularly
understood as “the return to or
recovery by a person of goods or
chattels claimed to be wrongfully
taken or detained upon the
person‟s giving security to try the
matter in court and return the
goods if defeated in the action;”
“the writ by or the common-law
action in which goods and
chattels are replevied,” i.e., taken
or gotten back by a writ for
replevin;” and to replevy, means
to recover possession by an
action of replevin; to take
possession of goods or chattels
under a replevin order. Bouvier‟s
Law Dictionary defines replevin
as “a form of action which lies to
regain the possession of personal
chattels which have been taken
from the plaintiff unlawfully x x x,
(or as) the writ by virtue of which
the sheriff proceeds at once to
take possession of the property
therein described and transfer it
to the plaintiff upon his giving
pledges which are satisfactory to
the sheriff to prove his title, or
return the chattels taken if he fail
so to do; the same authority
states that the term, “to replevy”
means “to re-deliver goods which
have been distrained to the
original possessor of them, on his
giving pledges in an action of
Page 24 of 113
replevin.” The term therefore may
refer either to the action itself, for
the recovery of personality, or the
provisional remedy traditionally
associated with it, by which
possession of the property may
be obtain[ed] by the plaintiff and
retained during the pendency of
the action. (Emphasis and
underscoring supplied; citations
omitted)
4.2 REPLEVIN CAN BE A
PRINCIPAL REMEDY AND
PROVISIONAL RELIEF
Broadly understood in this jurisdiction,
replevin is both a form of principal
remedy and of provisional relief. It may
refer either to the action itself, i.e., to
regain the possession of personal
chattels being wrongfully detained from
the plaintiff by another, or to the
provisional remedy that would allow the
plaintiff to retain the thing during the
pendency of the action and to hold it
pendente lite. (BA Finance Corporation
v. CA, 327 Phil. 716, 724-725 (1996).
See also Tillson v. Court of Appeals, id.;
Bouvier’s Dictionary, Third (Rawle’s)
Revision, Vol. 2; Black’s Law Dictionary,
Sixth Edition, p. 1299) The action is
primarily possessory in nature and
generally determines nothing more than
the right of possession. (BA Finance
Corporation v. CA, 327 Phil. 716, 725
[1996])
4.3 Who can avail replevin
A party praying for the recovery
of possession of personal
property. (Section 1, Rule 60)

4.4 Stage to avail replevin
Recovery of possession of personal
property can be availed:
1. at the commencement of the
action; or
2. at any time before answer.
(Section 1, Rule 60)
4.5 Mechanics to file replevin
The mechanics could refer either to the
action itself, i.e., to regain the
possession of personal chattels being
wrongfully detained from the plaintiff by
another, or to the provisional remedy
that would allow the plaintiff to retain the
thing during the pendency of the action
and to hold it pendente lite
A. If it refers to the action itself, i.e.,
to regain the possession of
personal chattels being
wrongfully detained from the
plaintiff by another, the
procedures are as follows:
1. By filing a complaint for replevin
alleging the following jurisdictional facts:
(a) That the applicant is the owner of
the property claimed, particularly
describing it, or is entitled to the
possession thereof;
(b) That the property is wrongfully
detained by the adverse party,
alleging the cause of detention
thereof according to the best of
his knowledge, information, and
belief;
Page 25 of 113
(c) That the property has not been
distrained or taken for a tax
assessment or a fine pursuant to
law, or seized under a writ of
execution or preliminary
attachment, or otherwise placed
under custodia legis, or if so
seized, that it is exempt from
such seizure or custody; and
(d) The actual market value of the
property.
2. The applicant must also give a
bond, executed to the adverse party in
double the value of the property as
stated in the affidavit attached to the
complaint. (Section 2, Rule 60). In
practice the allegations regarding
jurisdictional facts of the complaint and
the affidavit are the same. The affidavit
should be attached to the complaint.
B. If it refers to the provisional
remedy that would allow the
plaintiff to retain the thing during
the pendency of the action and to
hold it pendente lite, the
procedures are as follows:
1. At the commencement of the
action or at any time before answer a
party praying for the recovery of
possession of personal property can
apply for an order for the delivery of
such property and must show by his
own affidavit or some other person who
personally knows the facts the following
jurisdictional facts:
a. That the applicant is the owner of
the property claimed, particularly
describing it, or is entitled to the
possession thereof;
 b. That the property is wrongfully
detained by the adverse party,
alleging the cause of detention
thereof according to the best of
his knowledge, information, and
belief;
c. That the property has not been
distrained or taken for a tax
assessment or a fine pursuant to
law, or seized under a writ of
execution or preliminary
attachment, or otherwise placed
under custodia legis, or if so
seized, that it is exempt from
such seizure or custody; and
d. The actual market value of the
property.
4.6 Rule on return of property
Effect if adverse party object to the
sufficiency of applicant’s bond
The adverse party cannot
immediately require the return of
the property if he objects to the
sufficiency of the applicant‟s
bond, or of the surety or sureties
thereon. (Section 5, Rule 60)
Effect if he does not object to the sufficiency
of applicant’s bond

But if he does not so object, he

2. The applicant must also give a
may, at any time before the
bond, executed to the adverse party in
delivery of the property to the
double the value of the property as
applicant, require the return
stated in the affidavit aforementioned,
thereof, by filing with the court
for the return of the property to the
where the action is pending a
adverse party if such return be
bond executed to the applicant
adjudged, and for the payment to the
and by serving a copy of such
adverse party of such sum as he may
bond on the applicant. (Section 5,
recover from the applicant in the action.
Rule 60)
(Section 2, Rule 60)

Amount of adverse party’s bond

Amount and purpose of applicant’s bond
The amount is in double the value of the
Amount of bond
property as stated in the applicant‟s
The amount of applicant‟s bond
affidavit. (Section 5, Rule
is double the value of the
60)
property as stated in the affidavit
of merit. (last paragraph, Section
Purpose of adverse party’s bond
2, Rule 60)

Purpose of bond 1. For the delivery of the

property to the
For the payment to the adverse applicant, if such
party of such sum as he may delivery be adjudged;
recover from the applicant in the 2. And for the payment of
action. (last paragraph, Section 2, such sum to him as
Rule 60) may be recovered

Page 26 of 113
 against the adverse the adverse party so
party. (Section 5, Rule objects and the court
60) affirms its approval of
the applicant’s bond or
approves a new bond;
4.7 Effect of filing a redelivery
3. or if within five (5) days
bond under Sections 5 and 6 of Rule
after the taking of the
60
property by the sheriff
the adverse party
It is clear from Sections 5 and 6 of Rule
requires the return of
60 that a defendant in a replevin suit
the property but his
may demand return of possession of the
bond is objected to and
property replevied by filing a redelivery
found insufficient and
bond within the periods specified in
he does not forthwith
Sections 5 and 6 of Rule 60. Under
file an approved bond;
Section 5, petitioner may “at any time
before the delivery of the property to the If for any reason the property is not
applicant “ require the return of the delivered to the applicant, the sheriff
property; in Section 6, he may do so, must return it to the adverse party.
“within five (5) days after the taking of (Section 6, Rule 60)
the property by the officer.” Both these
periods are mandatory in character.
(Bachrach Motor Co., Inc. v. Albert, 60 4.9 The five day period is
Phil. 308 [1934]) mandatory

In Spouses Bautista v. Sulla, A.M. No.

4.8 Disposition of property by
sheriff
When property to be delivered to
applicant
In the following instances, the property
shall be delivered to the applicant:
1. if within five (5) days
after the taking of the
property by the sheriff
the adverse party does
not object to the
sufficiency of the bond,
or of the surety or
sureties thereon;
2. or if within five (5) days
after the taking of the
property by the sheriff
P-04-1920, August 17, 2007, the
Supreme Court held the mandatory
character of the five day period for the
defendant to post a counter-bond and
serving the same to the plaintiff as
follows:
“Under Section 5, complainants
may require the return of the
vehicle by (1) posting a counter-
bond in double the value of the
vehicle and (2) serving Glor with
a copy of the counter-bond. Both
requirements must be complied
with before the vehicle is
delivered to Glor. Put differently:
If a defendant in a replevin action
wishes to have the property taken
by the sheriff restored to him, he
should within five days from such

Page 27 of 113
 taking, (1) post a counter-bond in
double the value of said property,
and (2) serve plaintiff with a
copy thereof, both requirements
— as well as compliance
therewith within the five- day
period mentioned — being
mandatory. x x x
Conformably, a defendant in a
replevin suit may demand the
return of possession of the
property replevined by filing a
redelivery bond executed to the
plaintiff in double the value of the
property as stated in the
plaintiff‟s affidavit within the
period specified in Sections 5 and
6. (Citibank, N.A. v. Court of
Appeals, 364 Phil. 328, 348
[1999])
Under Section 6, the vehicle shall
be delivered to Glor only under
the following instances:
1. If within five days after the
taking of the vehicle,
complainants do not object to
the sufficiency of the bond or
of the surety or sureties
thereon;
2. If within five days after the
taking of the vehicle,
complainants object to the
sufficiency of the bond and
the trial court affirms its
approval of Glor‟s bond or
approves a new bond; or
3. If within five days after the
taking of the vehicle,
complainants require the
return of the vehicle and their
bond is objected to and found
insufficient and they do not
forthwith file an approved
bond.”
Page 28 of 113
4.10 Purpose of five-day period
under Section 6, Rule 60
The purpose of the five day period was
likewise discussed in Spouses Bautista
v. Sulla, A.M. No. P-04- 1920, August
17, 2007: “Under the Rules of Court, the
sheriff should not immediately deliver
the property seized under a writ of
replevin to the plaintiff. This is because
defendants have every right to be
respected in their possession and may
not be deprived of it without due
process. The purpose of the five-day
period in Section 6 is to give defendants
in a replevin case a chance to require
the return of the property by filing a
counter-bond. In Pardo v. Velasco, A.M.
No. P-90-408, 7 August 1992, 212
SCRA 323, 328-329, this Court held
that:
Respondent as an officer of the
Court is charged with certain
ministerial duties which must be
performed faithfully to the letter.
Every provision in the Revised
Rules of Court has a specific
reason or objective. In this case,
the purpose of the five (5) days is
to give a chance to the defendant
to object to the sufficiency of the
bond or the surety or sureties
thereon or require the return of
the property by filing a
counter[-]bond.
In Sebastian v. Valino, A.M. No. P-91-
549, 5 July 1993, 224 SCRA 256, 259
this Court held that:
Under the Revised Rules of
Court, the property seized under
a writ of replevin is not to be
delivered immediately to the
plaintiff. The sheriff must retain it
in his custody for five days and
he shall return it to the defendant,
if the latter, as in the instant case,
requires its return and files a
counter[-]bond (Sec. 4, Rule 60,
Revised Rules of Court).
(Emphasis ours)

Page 29 of 113
QUAMTO 2018
PRELIMINARY ATTACHMENT
Q: The plaintiff obtained a writ of
preliminary attachment upon a bond of P1
million. The writ was levied on the
defendant’s property, but it was discharged
upon the posting by the defendant of a
counterbond in the same amount of P1
million. After trial, the court rendered
judgment finding that the plaintiff had no
cause of action against the defendant and
that he had sued out the writ of attachment
maliciously. Accordingly, the court
dismissed the complaint and ordered the
plaintiff and its surety to pay jointly to the
defendant P1.5 million as actual damages,
P0.5 million as moral damages and P0.5
million as exemplary damages. Evaluate the
soundness of the judgment from the point of
view of procedure. (2002 Bar
A: The judgment against the surety
is not sound if due notice was not
given to him of the applicant for
damages (Sec 20, Rule 57).
Moreover, the judgment against the
surety cannot exceed the amount of
its counterbond of P1 million.
Q: In a case, the property of an incompetent
under guardianship was in custodia legis.
Can it be attached? Explain. (1999 Bar)
A: Although the property of an
incompetent under guardianship is in
custodia legis, it may be attached as
in fact it is provided that in such
case, a copy of the writ of
attachment shall be filed with the
proper court and notice of the
Page 30 of 113
attachment served upon the
custodian of such property (Sec. 7,
last par., Rule 57).
Q: May damages be claimed by a party
prejudiced by a wrongful attachment even if
the judgment is adverse to him? Explain.
(1999 Bar)
A: Yes, damages may be claimed by
a party prejudiced by a wrongful
attachment even if the judgment is
adverse to him. This is authorized by
the Rules. A claim for damages may
be made on account of improper,
irregular or excessive attachment,
which shall be heard with notice to
the adverse party and his surety or
sureties (Sec. 20, Rule 57; Javellana
v. D. O. Plaza Enterprises Inc.,G.R.
No. L-28297, March 30, 1970).
Q: May a writ of preliminary attachment be
issued ex parte? Briefly state the reason(s)
for your answer. (2001 Bar)
A: YES, an order of attachment may
be issued exparte or upon motion
with notice and hearing (Sec. 2, Rule
57). The reason why the order may
be issued exparte is that requiring
notice to the adverse party and a
hearing would defeat the purpose of
the provisional remedy and enable
the adverse party to abscond or
dispose of his property before a writ
of attachment issues (Mindanao
Savings and Loan Association, Inc.
v. Court of Appeals,G.R. No. 84481,
April 18, 1989).
Q: May a preliminary injunction be issued ex
parte? Why? (2001 Bar)
 A: No, a writ of preliminary injunction
may not be issued ex parte. As
provided in the Rules, no preliminary
injunction shall be granted without
hearing and prior notice to the party
or person sought to be enjoined
(Sec. 5, Rule 58). The reason is that
a preliminary injunction may cause
grave and irreparable injury to the
party enjoined.
Q: Katy filed an action against Tyrone for
collection of the sum of P1 million in the
RTC, with an ex-parte application for a writ
of preliminary attachment. Upon posting of
an attachment bond, the court granted the
application and issued a writ of preliminary
attachment. Apprehensive that Tyrone
might withdraw his savings deposit with the
bank, the sheriff immediately served a
notice of garnishment on the bank to
implement the writ of preliminary
attachment. The following day, the sheriff
proceeded to Tyrone’s house and served
him the summons, with copies of the
complaint containing the application for writ
of attachment, Katy’s affidavit, order of
attachment, writ of preliminary attachment
and attachment bond. Within fifteen (15)
days from service of the summons, Tyrone
filed a motion to dismiss and to dissolve the
writ of preliminary attachment on the
following grounds: (i) the court did not
acquire jurisdiction over his person because
Q:
the writ was served ahead of the summons;
garnishment. (1999 Bar)
(ii) the writ was improperly implemented;
and (iii) said writ was improvidently issued
because the obligation in question was
already fully paid. Resolve the motion with
reasons. (2005 Bar)
A: The motion to dismiss and to dissolve
the writ of preliminary attachment should
be denied.
Page 31 of 113
1. The fact that the writ of attachment
was served ahead of the summons
did not affect the jurisdiction of the
court over his person. It makes the
writ, unenforceable (Sec. 5, Rule
57). However, all that is needed to
be done is to reserve the writ (Onate
v. Abrogar, G.R. No. 197393,
February 23, 1985).
2. The writ was improperly
implemented. Serving a notice of
garnishment, particularly before the
summons is served, is not proper. It
should be a copy of the writ of
attachment that should be served on
the defendant, and a notice that the
bank deposits are attached pursuant
to the writ (Sec. 7[d], Rule 57).
3. The writ was improvidently issued if
indeed it can be shown that the
obligation was already fully paid.
The writ is only ancillary to the main
action (Sec. 13, Rule 57). The
alleged payment of the account
cannot serve as a ground for
resolving the improvident issuance
of the writ, because this matter
delves into the merits of the case,
and requires full-blown trial.
Payment, however, serves as a
ground for a motion to dismiss.
Distinguish attachment from
A: Attachment and garnishment are
distinguished from each other as
follows: Attachment is a provisional
remedy that effects a levy on
property of a party as security for the
satisfaction of any judgment that
may be recovered, while
garnishment is a levy on debts due
 the judgment obligor or defendant
and other credits, including bank
deposits, royalties and other
personal property not capable of
manual delivery under a writ of
execution or a writ of attachment.
Q: Briefly discuss/differentiate the following
kinds of Attachment: preliminary
attachment, garnishment, levy on execution,
warrant of seizure and warrant of distraint
and levy. (2012 Bar)
A: Preliminary attachment is a
provisional remedy under Rule 57 of
the Rules of Court. It may be sought
at the commencement of an action
or at any time before entry of
judgment where property of an
adverse party may be attached as
security for satisfaction of any
judgment, where this adverse party
is about to depart from the
Philippines, where he has intent to
defraud or has committed fraud, or is
not found in the Philippines. An
affidavit and a bond is required
before the preliminary attachment
issues. It is discharged upon
payment of a counter bond.
Garnishment is a manner of
satisfying or executing judgment
where the sheriff may levy debts,
credits, royalties, commissions, bank
deposits and other personal property
not capable of manual delivery that
are in the control or possession of
third persons and are due the
judgment obligor. Notice shall be
served on third parties. The third
party garnishee must make a written
report on whether or not the
judgment obligor has sufficient funds
or credits to satisfy the amount of
Page 32 of 113
the judgment. If not, the report shall
state how much funds or credits the
garnishee holds for the judgment
obligor (Section 9[c], Rule 39).
Levy on execution is a manner of
satisfying or executing judgment
where the sheriff may sell property
of the judgment obligor if he is
unable to pay all or part of the
obligation in cash, certified bank
check or any other manner
acceptable to the obligee. If the
obligor does not chose which among
his property may be sold, the sheriff
shall sell personal property first and
then real property second. He must
sell only so much of the personal or
real property as is sufficient to
satisfy judgment and other lawful
fees (Sec. 9 [b], Rule 39).
Warrant of seizure is normally
applied for with a search warrant, in
criminal cases. The warrant of
seizure must particularly describe
the things to be seized. While it is
true that the property to be seized
under a warrant must be particularly
described therein and no other
property can be taken thereunder,
yet the description is required to be
specific only insofar as the
circumstances will ordinarily allow.
An application for search and
seizure warrant shall be filed with
the following: (a) Any court within
whose territorial jurisdiction a crime
was committed; (b) For compelling
reasons stated in the application,
any court within the judicial region
where the crime was committed if
the place of the commission of the
crime is known, or any court within
the judicial region where the warrant
 shall be enforced. However, if the
criminal action has already been
filed, the application shall only be
made in the court where the criminal
action is pending.
Warrant of distraint and levy is
remedy available to local
governments and the BIR in tax
cases to satisfy deficiencies or
delinquencies in inheritance and
estate taxes, and real estate taxes.
Distraint is the seizure of personal
property to be sold in an authorized
auction sale. Levy is the issuance of
a certification by the proper officer
showing the name of the taxpayer
and the tax, fee, charge or penalty
due him. Levy is made by writing
upon said certificate the description
of the property upon which levy is
made.
Q: A sues B for collection of a sum of
money. Alleging fraud in the contracting of
the loan, A applies for preliminary
attachment with the court. The Court issues
the preliminary attachment after A files a
bond. While summons on B was yet
unserved, the sheriff attached B's
properties. Afterwards, summons was duly
served on B. B moves to lift the attachment.
Rule on this. (2012 Bar)
A: I will grant the motion since no
levy on attachment pursuant to the
writ shall be enforced unless it is
preceded or contemporaneously
accompanied by service of
summons. There must the prior or
contemporaneous service of
summons with the writ of attachment
(Sec. 5, Rule 57).
Page 33 of 113
Q: Bayani, an overseas worker based in
Dubai, issued in favor of Agente, a special
power of attorney to sell his house and lot.
Agente was able to sell the property but
failed to remit the proceeds to Bayani, as
agreed upon. On his return to the
Philippines, Bayani, by way of a demand
letter duly received by Agente sought to
recover the amount due him. Agente failed
to return the amount as he had used it for
the construction of his own house. Thus,
Bayani filed an action against Agente for
sum of money with damages. Bayani
subsequently filed an ex-parte motion for
the issuance of a writ of preliminary
attachment duly supported by an affidavit.
The court granted the ex-parte motion and
issued a writ of preliminary attachment upon
Bayani’s posting of the required bond.
Bayani prayed that the court’s sheriff be
deputized to serve and implement the writ of
attachment. On November 19, 2013, the
Sheriff served upon Agente the writ of
attachment and Agente levied on the latter’s
house and lot. On November 20, 2013, the
Sheriff served upon Agente summons and a
copy of the complaint. On November 22,
2013, Agente filed an Answer with Motion to
Discharge the Writ if Attachmentalleging
that at the time the writ of preliminary
attachment was issued, he has not been
served with summons and, therefore, it was
improperly issued. (2014)
a. Is Agente correct?
A: No. Agente is not correct. Section
2, Rule 57 provides that a writ of
attachment may be issued ex parte
or upon motion with notice and
hearing by the Court in which the
action is pending. Under the Rules,
the applicant of the writ is only
required to (i) submit an affidavit and
(ii) post a bond before the court can
 validly issue the writ of attachment.
The Rules do not require prior
service of summons for the proper
issuance of a writ of attachment.
(Sofia Torres v. Nicanor Satsatin,
G.R. No. 166759, November 25,
2009). Accordingly, the issuance of
the writ of attachment is valid
notwithstanding the absence of a
prior service of summons to Agnete.
b. Was the writ of preliminary attachment
properly executed? (2014 Bar)
A: No. The writ of preliminary
attachment was not properly
executed. Although a writ of
attachment may issue even before
summons is served upon the
defendant, the same, however, may
not bind and affect the defendant
until jurisdiction over his person is
obtained (Davao Light and Power
Co., Inc. v. Court of Appeals,G.R.
No. 93262 December 29, 1991).
Thus, the writ of preliminary
attachment must only be served
simultaneous or at least after the
service of summons to the
defendant(Sofia Torres v, Nicanor
Satsatin, G.R. No. 166759,
November 25, 2009). Preliminary
Injunction
Q: Define a temporary restraining order
(TRO). Differentiate a TRO from a status
quo order. (2006 Bar)
A: A temporary restraining order is
issued upon application of a party
and upon the posting of the required
bond. On the other hand, a status
Page 34 of 113
quo order maybe issued motu
proprio on equitable considerations,
and does not require the posting of a
bond. Unlike a temporary restraining
order or a preliminary injunction, a
status quo order is more in the
nature of a cease and desist order,
since it neither directs the doing or
undoing of acts as in the case of
prohibitory or mandatory injunctive
relief (Garcia v. Mojica,G.R. No.
139043. September 10, 1999).
Q: What are the requisites for the issuance
of (a) a writ of preliminary injunction; and (b)
a final writ of injunction? (2006 Bar)
A: A: The requisites for the issuance
of a writ of preliminary injunction are:
(1) a right in esse or a clear and
unmistakable right to be protected;
(2) a violation of that right; (3) that
there is an urgent and permanent
act and urgent necessity for the writ
to prevent serious damage (Tayag v.
Lacson, G.R. No. 134971, March 25,
2004).
A final writ of injunction may be
granted if after trial of the action, it
appears that the applicant is entitled
to have the act or acts complained of
permanently enjoined (Sec. 9, Rule
58).
Q: Distinguish between injunction as an
ancillary remedy and injunction as a main
action. (2006 Bar)
A: Injunction as an ancillary remedy
presupposes the existence of a
 principal or a main action (Vallangca
v. Court of Appeals,G.R. No. 55336,
May 4, 1989). Its main function is to
preserve the status quo until the
merits can be heard and resolved
(Urbanes v. Court of Appeals, G.R.
No. 117964, March 28, 2001).
On the other hand, an injunction as
the main action is brought
specifically to obtain a judgment
perpetually restraining or
commanding the performance of an
act after trial (Del Mar v.
PAGCOR,G.R. No. 138298,
November 29, 2000).
Q: While window-shopping at the mall on
August 4, 2008, Dante lost his organizer
including his credit card and billing
statement. Two days later, upon reporting
the matter to the credit card company, he
learned that a one-way airplane ticket was
purchased online using his credit card for a
flight to Milan in mid- August 2008. Upon
extensive inquiry with the airline company,
Dante discovered that the plane ticket was
under the name of one Dina Meril. Dante
approaches you for legal advice.
a. What is the proper procedure to prevent
Dina from leaving the Philippines?
A: The filing of an appropriate
criminal action cognizable by the
RTC against Dina and the filing in
said criminal action a Motion for the
issuance of a Hold Departure Order;
(2) thereafter, a written request with
the Commissioner of the Bureau of
Immigration for a Watch List Order
pending the issuance of the Hold
Page 35 of 113
Departure Order should be filed; (3)
then, the airline company should be
requested to cancel the ticket issued
to Dina.
b. Suppose an Information is filed against
Dina on August 12, 2008 and she is
immediately arrested. What pieces of
electronic evidence will Dante have to
secure in order to prove the fraudulent
online transaction? (2010 Bar)
A: He will have to present (a) his
report to the bank that he lost his
credit card; (b) that the ticket was
purchased after the report of the lost
add; and (c) the purchase of one-
way ticket.
Dante should bring an original (or an
equivalent copy) printout of: 1)the
online ticket purchase using his
credit card; 2) the phone call log to
show that he already alerted the
credit card company of his loss; and
3) his credit card billing statement-
bearing the online ticket transaction.
Q: Can a suit for injunction be aptly filed
with the Supreme Court to stop the
president of the Philippines from entering
into a peace agreement with the National
Democratic Front? (2003 Bar)
A: A suit for injunction cannot aptly
be filed with the Supreme Court to
stop the President of the Philippines
from entering into a peace
agreement with the National
Democratic Front, which is a purely
political question (Madarang v.
 Santamaria,G.R. No. L13316,
December 11, 1917). The President
of the Philippines is immune from
suit.
Q: May the RTC issue injunction without
bond? (2006 Bar)
A: Yes, if the injunction issued is a
final injunction. Generally, however,
a preliminary injunction may not be
issued without the posting of a bond,
unless exempted by the trial court
(Sec. 4 [b], Rule 58) or otherwise
provided for by law.
Q: An application for a writ of preliminary
injunction with a prayer for a temporary
restraining order is included in a complaint
and filed in a multi-sala RTC consisting of
Branches 1,2,3 and 4. Being urgent in
nature, the Executive Judge, who was
sitting in Branch 1, upon the filing of the
aforesaid application immediately raffled the
case in the presence of the judges of
Branches 2,3 and 4. The case was raffled to
Branch 4 and judge thereof immediately
issued a temporary restraining order. Is the
temporary restraining order valid? Why?
(2001, 2006 Bar)
A: No. It is only the Executive Judge
who can issue immediately a
temporary restraining order effective
only for seventy-two (72) hours from
issuance. No other Judge has the
right or power to issue a temporary
restraining order ex parte. The
Judge to whom the case is assigned
will then conduct a summary hearing
to determine whether the temporary
restraining order shall be extended,
Page 36 of 113
but in no case beyond 20 days,
including the original 72hour period
(Sec. 5, Rule 58).
Q: May a justice of a Division of the Court of
Appeals issue a TRO? (2006 Bar)
A: Yes, a Justice of a Division of the
Court of Appeals may issue a TRO,
as authorized under Rule 58 and by
Section 5, Rule VI of the Internal
Rules of Court of Appeals which
additionally requires that the action
shall be submitted on the next
working day to the absent members
of the division for their ratification,
modification or recall (Heirs of the
late Justice Jose B.L. Reyes v. Court
of Appeals, G.R. Nos. 135180-81;
135425-26, August 16, 2000).
Q: A temporary restraining order
(TRO) was issued on September 20, 2017
by the RTC against defendant Jeff enjoining
him from entering the land of Regan, the
plaintiff. On October 9, 2017, upon
application of Regan, the trial court,
allegedly in the interest of justice, extended
the TRO for another 20 days based on the
same ground for which the TRO was
issued. On October 15, 2017, Jeff entered
the land subject of the TRO. May Jeff be
liable for contempt of court? Why? (2017
Bar)
A: No, Jeff may not be liable
for contempt. Under the Rule on
Preliminary Injunction, a TRO is
effective only for a period of 20 days
from service on the person sought to
be enjoined. It is deemed
automatically vacated if the
 application for preliminary injunction
is denied or not resolved within the
said period and no court shall have
the authority to extend or renew the
TRO on the same ground for which it
was issued. [S5 R58] Here the
extension of the TRO by the RTC
was invalid since it was for the same
ground for which the TRO was
issued. Hence the TRO was
deemed automatically vacated and
thus Jeff may not be liable for
contempt for ignoring it.
RECEIVERSHIP
Q: Joaquin filed a complaint against Jose
for the foreclosure of a mortgage of a
furniture factory with a large number of
machinery and equipment. During the
pendency of the foreclosure suit, Joaquin
learned from reliable sources that Jose was
quietly and gradually disposing of some of
his machinery and equipment to a
businessman friend who was also engaged
in furniture manufacturing such that from
confirmed reports Joaquin gathered, the
machinery and equipment left with Jose
were no longer sufficient to answer for the
latter’s mortgage indebtedness. In the
meantime, judgment was rendered by the court
in favor of Joaquin but the same is not yet final.
Knowing what Jose has been doing. If you were
Joaquin’s lawyer, what action would you take to
preservewhatever remaining machinery and
equipment are left with Jose? Why? (2001 Bar)
A: To preserve whatever remaining
machinery and equipment are left with
Jose, Joaquin's lawyer should file a
verified application for the appointment
by the court of one or more receivers.
The Rules provide that receivership is
proper in an action by the mortgagee for
the foreclosure of a mortgage when it
appears that the property is in danger of
Page 37 of 113
being wasted or dissipated or materially
injured and that its value is probably
insufficient to discharge the mortgage
debt (Sec. 1 [b], Rule 59).
REPLEVIN
Q: What is replevin? (1999 Bar)
A: Replevin or delivery of personal property
consists in the delivery, by order of the court, of
personal property by the defendant to the
plaintiff, upon the filing of a bond (Calo v.
Roldan, G.R. No. L-252, March 30, 1946).
SUPPORT PENDENTE LITE
Q: Before the RTC, A was charged with rape of
his 16-year old daughter. During the pendency
of the case, the daughter gave birth to a child
allegedly as a consequence of the rape.
Thereafter, she asked the accused to support
the child, and when he refused, the former filed
a petition for support pendente lite. The
accused, however, insists that he cannot be
made to give such support arguing that there is
as yet no finding as to his guilt. Would you agree
with the trial court if it denied the application for
support pendent lite? Explain. (1999, 2001)
A: No. The provisional remedy of
support pendente lite may be granted by
the RTC in the criminal action for rape.
In criminal actions where the civil liability
includes support for the offspring as a
consequence of the crine and the
civil aspect thereof has not been
waived, reserved or instituted prior
to its filing, the accused may be
ordered to provide support pendente
lite to the child born to the offended
party allegedly because of the crime
(Sec. 6, Rule 61, Rules of Court).

Page 38 of 113
II. SPEICIAL CIVIL a. Jurisdiction

ACTIONS Jurisdiction on the complaint for

1. Interpleader
The legal civil remedy of interpleader
has been defined by the Honorable
Supreme Court in the case of Alvarez v.
Common-wealth, G.R. No. 45315,
February 25, 1938 in this wise:
interpleader lies with the Regional Trial
Court (RTC) and the Municipal Trial
Court (MTC) and Metropolitan Trial
Court (MeTC) depending on the
assessed value of the property,
personal and real, involved.
As conferred by law, the jurisdiction are
as follows:

“The action of interpleader is a

1. Municipal Trial Court (MTC),
remedy whereby a person who
Metropolitan Trial Court (MeTC)
has personal property in his
— where the value of the claim or
possession, or an obligation to
the personal property does not
render wholly or partially, without
exceed P300,000.00 outside of
claiming any right in both, comes
Metro Manila (Municipal Trial
to court and asks that the
Court [MTC])or P400,000.00 in
persons who claim the said
Metro Manila (Metropolitan Trial
personal property or who
Court [MeTC]) or where the value
consider themselves entitled to
of the real property does not
demand compliance with the
exceed P20,000.00 outside Metro
obligation, be required to litigate
Manila (Municipal Trial Court
among themselves, in order to
[MTC]) or P50,000.00 in Metro
determine finally who is entitled
Manila (Metropolitan Trial Court
to one or the other thing. The
[MeTC]).
remedy is afforded not to protect
a person against a double liability
2. Regional Trial Court (RTC) — If
but to protect him against a
the value exceeds the above
double vexation in respect of one
amounts or if the subject matter
liability. When the court orders
incapable of pecuniary estimation
that the claimants litigate among
is exclusively within the
themselves, there arises in reality
jurisdiction of the Regional Trial
a new action and the former are
Court. (Judiciary Act of 1980; BP
styled interpleaders, and in such
Blg. 129 [Section 19 (1), (2),
a case the pleading which
Section 33(3)] as amended by
initiates the action is called a
RA 7691)
complaint of interpleader and not
a cross-complaint.”
b. Venue

1.1 Jurisdiction and venue of the The venue of special civil action is
complaint for interpleader governed by the general rules on venue
Rule 4 of the 1997 Rules on Civil

Page 39 of 113
Procedure unless otherwise provided in
the particular rule governing special civil
action. Thus, the following are the rules
on venue:
Where the subject matter is a real
property:
Action to be filed by and against whom
The party against whom a conflicting
claims are asserted may bring an action
against the conflicting claimants.
(Section 1, Rule 62)

In the court which has jurisdiction over
the area wherein the real property
involved, or a portion thereof, is
situated. (Section 1, Rule 4)
Where the subject matter is a personal
property:
Purpose of filing the action against the
conflicting claimants
To compel them to interplead and
litigate their several claims among
themselves. (Section 1, Rule 62)

Where the plaintiff or any of the principal

plaintiff resides or where the defendant
or any of the principal defendants
resides at the option of the plaintiff.
(Section 2, Rule 4)

1.2 When interpleader is proper

Indispensable elements/requirements:

Whenever “conflicting claims upon the

same subject matter are or may be
made” against a person “who claims no
interest whatever in the subject matter,
or an interest which in whole or in part is
not disputed by the claimants”. (Section
1, Rule 62) The provision simply means
that there is a party, against whom a
conflicting claims are asserted, (a) who
claims no interest whatsoever in whole
or in part upon the same subject matter,
or
(b) an interest which in whole or in part
is not disputed by the claimants.

Page 40 of 113
2. Declaratory relief
Declaratory relief is defined as an action
by any person interested in a deed, will,
contract or other written instrument,
executive order or resolution, to
determine any question of construction
or validity arising from the instrument,
executive order or regulation, or statute,
and for a declaration of his rights and
duties thereunder. The only issue that
may be raised in such a petition is the
question of construction or validity of the
provisions in an instrument or statute.
(Ferrer, Jr. vs. Roco, Jr., G.R. No.
174129, July 5, 2010)
2.1 Remedies and who may file
petition for declaratory relief
The remedies under Rule 63 are as
follows:
1. Declaratory relief;
2. An action for:
a. the reformation of an
instrument;
b. to quiet title to real
property or remove clouds
therefrom,
c. or to consolidate
ownership under Article
1607 of the Civil Code,
may be brought under this
Rule. (Section 1, Rule 63)
2.2 When and where (jurisdiction)
to file
Page 41 of 113
Before breach or violation thereof bring
an action in the appropriate Regional
Trial Court. (Section 1, Rule 63). Under
the Judiciary Act of 1980; BP Blg. 129
[Section 19 (2), Section 33(3)], as
amended by Republic Act No. 7691, if
the subject matter is incapable of
pecuniary estimation jurisdiction is
exclusively conferred to the Regional
Trial Court. A petition for declaratory
relief is an action which is incapable of
pecuniary estimation. Thus, the
exclusive and original jurisdiction is with
the Regional Trial Court. However, this
jurisdiction of the Regional Trial Court
on petition for declaratory relief refers
only to the first paragraph of Section 1,
Rule 63. This is because by established
jurisprudence the Supreme Court
distinguished the first and second
paragraph of Section 1, Rule 63 in so far
as the determination of jurisdiction is
concerned.
2.3 Distinction between the first
and the second paragraphs of
Section 1, Rule 63
In holding that the RTC correctly made a
distinction between the first and the
second paragraphs of Section 1, Rule
63 of the Rules of Court, the Supreme
Court held in Malana v. Tappa, G.R.
181303, September 17, 2009 as follows:
The first paragraph of Section 1,
Rule 63 of the Rules of Court,
describes the general
circumstances in which a person
may file a petition for declaratory
relief, to wit:
Any person interested under a
deed, will, contract or other
 written instrument, or whose
rights are affected by a statute,
executive order or regulation,
ordinance, or any other
governmental regulation may,
before breach or violation thereof,
bring an action in the appropriate
Regional Trial Court to determine
any question of construction or
validity arising, and for a
declaration of his rights or duties,
thereunder. (Emphasis ours.)
As the afore-quoted provision states, a
petition for declaratory relief under the
first paragraph of Section 1, Rule 63
may be brought before the appropriate
RTC.
Section 1, Rule 63 of the Rules of
Court further provides in its
second paragraph that:
An action for the reformation of
an instrument, to quiet title to real
property or remove clouds
therefrom, or to consolidate
ownership under Article 1607 of
the Civil Code, may be brought
under this Rule. (Emphasis ours.)
The second paragraph of Section 1,
Rule 63 of the Rules of Court
specifically refers to (1) an action for the
reformation of an instrument, recognized
under Articles 1359 to 1369 of the Civil
Code; (2) an action to quiet title,
authorized by Articles 476 to 481 of the
Civil Code; and (3) an action to
consolidate ownership required by
Article 1607 of the Civil Code in a sale
with a right to repurchase. These three
remedies are considered similar to
declaratory relief because they also
result in the adjudication of the legal
rights of the litigants, often without the
Page 42 of 113
need of execution to carry the judgment
into effect. (Regalado, REMEDIAL LAW
COMPENDIUM (6th revised ed.), p.
692.)
To determine which court has
jurisdiction over the actions identified in
the second paragraph of Section 1, Rule
63 of the Rules of Court, said provision
must be read together with those of the
Judiciary Reorganization Act of 1980, as
amended.
It is important to note that Section 1,
Rule 63 of the Rules of Court does not
categorically require that an action to
quiet title be filed before the RTC. It
repeatedly uses the word “may” — that
an action for quieting of title “may be
brought under [the] Rule” on petitions for
declaratory relief, and a person desiring
to file a petition for declaratory relief
“may x x x bring an action in the
appropriate Regional Trial Court.” The
use of the word “may” in a statute
denotes that the provision is merely
permissive and indicates a mere
possibility, an opportunity or an option.
(De Ocampo v. Secretary of Justice,
G.R. No. 147932, 25 January 2006, 480
SCRA 71, 80; Melchor v.
Gironella, 491 Phil. 653, 658-659
(2005); Social Security Commission v.
Court of Appeals, 482 Phil. 449,
462 [2004])
In contrast, the mandatory provision of
the Judiciary Reorganization Act of
1980, as amended, uses the word
“shall” and explicitly requires the MTC to
exercise exclusive original jurisdiction
over all civil actions which involve title to
or possession of real property where the
assessed value does not exceed
P20,000.00, thus:

Section 33. Jurisdiction of
Metropolitan Trial Courts,
Municipal Trial Courts and
Municipal Circuit Trial Courts in
Civil Cases.—Metropolitan Trial
Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts
shall exercise:
xxxx
(3) Exclusive original
jurisdiction in all civil actions
which involve title to, possession
of, real property, or any interest
therein where the assessed value
of the property or interest therein
does not exceed Twenty
thousand pesos (P20,000.00) or,
in civil actions in Metro Manila,
where such assessed value does
not exceeds Fifty thousand pesos
(P50,000.00) exclusive of
interest, damages of whatever
kind, attorney‟s fees, litigation
expenses and costs: x x x
(Emphasis ours.)
As found by the RTC, the
assessed value of the subject
property as stated in Tax
Declaration No. 02- 48386 is only
P410.00; therefore, petitioners‟
Complaint involving title to and
possession of the said property is
within the exclusive original
jurisdiction of the MTC, not the
RTC.
Furthermore, an action for
declaratory relief presupposes
that there has been no actual
breach of the instruments
involved or of rights arising
thereunder. (Velarde v. Social
Page 43 of 113
Justice Society, G.R. No.
159357, 28 April 2004, 428
SCRA 283, 294) Since the
purpose of an action for
declaratory relief is to secure an
authoritative statement of the
rights and obligations of the
parties under a statute, deed, or
contract for their guidance in the
enforcement thereof, or
compliance therewith, and not to
settle issues arising from an
alleged breach thereof, it may be
entertained only before the
breach or violation of the statute,
deed, or contract to which it
refers. A petition for declaratory
relief gives a practical remedy for
ending controversies that have
not reached the state where
another relief is immediately
available; and supplies the need
for a form of action that will set
controversies at rest before they
lead to a repudiation of
obligations, an invasion of rights,
and a commission of wrongs.
(Manila Electric Company v.
Philippine Consumers
Foundation, Inc., 425 Phil. 65, 82
(2002); Rosello-Bentir v. Leanda,
386 Phil. 802, 813-814 [2000])
3. Review of judgments and final 3.6 The constitutional basis of the
orders or resolutions of the mode of review
COMELEC and COA
The Constitutional basis of the mode of
review of the judgment and final orders
or resolutions of the Commission on
3.1 When Rule 64 is applicable Elections and Commission on Audit is
mandated under Section 7, Article IX of
This Rule shall govern the review the 1987 Constitution as follows:
of judgments and final orders or
resolutions of the Commission on Sec. 7. Each Commission shall
Elections and the Commission on decide by a majority vote of all its
Audit. (Rule 64, Section 1) Members any case or matter
brought before it within sixty days
from the date of its submission
for decision or resolution. A case
3.2 Mode of review or matter is deemed submitted for
decision or resolution upon the
Petition for Certiorari under Rule filing of the last pleading, brief, or
65, except as hereinafter memorandum required by the
provided. (Section 2, Rule 64) rules of the Commission or by the
Commission itself. Unless
otherwise provided by this
3.3 Subject matter of the review Constitution or by law, any
A judgment or final order or decision, order, or ruling of each
resolution of the: Commission may be brought to
the Supreme Court on certiorari
by the aggrieved party within
1. Commission on Elections; and thirty days from receipt of a copy
2. Commission on Audit (Section thereof.
2, Rule 64)

3.4 Initiated by whom

By the aggrieved party. (Section

2, Rule 64)

3.5 Where to file

Supreme Court. (Rule 64,

Section 2)

Page 44 of 113
4. Certiorari under Rule 65
Directed against whom
Any tribunal, board or officer exercising
judicial or quasi-judicial functions.
(Section 1, Rule 65)
Under what circumstance to be initiated
1. When any tribunal, board or
officer exercising judicial or
quasi-judicial functions acted
without or in excess its or his
jurisdiction, or with grave
abuse of discretion amounting
to lack or excess of
jurisdiction; and
2. There is no appeal, or any
plain, speedy, and adequate
remedy in the ordinary course
of law. (Section 1, Rule 65)
Who May Initiate
A person aggrieved
thereby. (Section 1, Rule 65)
How initiated
By a verified petition in the proper
court. (Section 1, Rule 65)
What to allege in the petition
By alleging the facts with certainty and
praying that: (a) judgment be rendered
annulling or modifying the proceedings
of such tribunal, board or officer; and (b)
granting such incidental reliefs as law
and justice may require. (Section 1,
Rule 65)
Page 45 of 113
What to accompany the petition
The petition shall be accompanied by:
1. a certified true copy of the
judgment, order or resolution
subject thereof;
2. copies of all pleadings and
documents relevant and
pertinent thereto; and
3. a sworn certification of non-
forum shopping as provided in
the third paragraph of section
3, Rule 46. (Section 1, Rule
65)
Requirements of petition for
certiorari under Rule 65
In Tan v. Spouses Antazo, G.R. No.
187208, February 23, 2011 cited the
clear application of the requisites for the
issuance of a writ of certiorari under
Rule 65:
A petition for certiorari under Rule
65 of the Rules of Court is a
pleading limited to correction of
errors of jurisdiction or grave
abuse of discretion amounting to
lack or excess of jurisdiction. Its
principal office is to keep the
inferior court within the
parameters of its jurisdiction or to
prevent it from committing such a
grave abuse of discretion
amounting to lack or excess of
jurisdiction. It may issue only
when the following requirements
are alleged in and established by
the petition: (1) that the writ is
directed against a tribunal, a
board or any officer exercising
 judicial or quasi-judicial functions;
(2) that such tribunal, board or
officer has acted without or in
excess of jurisdiction, or with
grave abuse of discretion
amounting to lack or excess of
jurisdiction; and (3) that there is
no appeal or any plain, speedy
and adequate remedy in the
ordinary course of law.
(Equitable-PCI Bank Inc. v.
Apurillo, G.R. No. 168746, 5
November 2009, 605 SCRA 30,
42-43 citing People v. Court of
Appeals, 468 Phil. 1, 10 (2004);
Salvacion v. Sandiganbayan,
G.R. No. 175006, 27 November
2008, 572 SCRA 163, 180-181)
Original jurisdiction to issue writs of
mandamus, prohibition, certiorari
The following are the rules on original
jurisdictions to issue writs of certiorari,
prohibition and mandamus:
a. The Supreme Court
Article VIII, Section 5 paragraph 1 of the
1987 Constitution provides:
Section 5. The Supreme Court shall
have the following powers:
1. Exercise original jurisdiction over
cases affecting ambassadors, other
public ministers and consuls, and over
petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas
corpus.
b. The Court of Appeals
Page 46 of 113
Section 9 of Batas Pambansa Blg. 129,
as amended, known as The Judiciary
Act of 1980 provides:
Section 9. Jurisdiction.—The Court of
Appeals shall exercise:
1. Original jurisdiction to issue writs of
mandamus, prohibition, certiorari,
habeas corpus, and quo warranto, and
auxiliary writs or processes, whether or
not in aid of its appellate jurisdiction;
c. The Regional Trial Court
Section 21 of Batas Pambansa Blg. 129,
as amended, known as The Judiciary
Act of 1980 provides:
Section 21. Original jurisdiction in
other cases.—Regional Trial Courts
shall exercise original jurisdiction:
(1) In the issuance of writs of certiorari,
prohibition, mandamus, quo warranto,
habeas corpus and injunction which
may be enforced in any part of their
respective regions; and
d. Sandiganbayan
“The Sandiganbayan shall have
exclusive original jurisdiction over
petitions for the issuance of the writs of
mandamus, prohibition, certiorari,
habeas corpus, injunctions, and other
ancillary writs and processes in aid of its
appellate jurisdiction and over petitions
of similar nature, including quo
warranto, arising or that may arise in
cases filed or which may be filed under
Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986: Provided, That the
jurisdiction over these petitions shall not
be exclusive of the Supreme Court.
(See paragraph 4, Section 4 of
Presidential Decree 1606 as amended
by Republic Act No. 8249)
Concurrent jurisdiction on certiorari
and doctrine of hierarchy of courts
In holding that the Court, the Court of
Appeals and the Regional Trial Courts
have concurrent jurisdiction to issue a
writ of certiorari is subject to the doctrine
of hierarchy of courts the Supreme
Court in A.L. Ang Network
v. Mondejar, G.R. No. 200804, January
22, 2014 said:
To be sure, the Court, the Court
of Appeals and the Regional Trial
Courts have concurrent
jurisdiction to issue a writ of
certiorari. (Rayos v. The City of
Manila, G.R. No. 196063,
December 14, 2011, 662 SCRA
684, 689) Such concurrence of
jurisdiction, however, does not
give a party unbridled freedom to
choose the venue of his action
lest he ran afoul of the doctrine of
hierarchy of courts. Instead, a
becoming regard for judicial
hierarchy dictates that petitions
for the issuance of writs of
certiorari against first level courts
should be filed with the Regional
Trial Court, and those against the
latter, with the Court of Appeals,
before resort may be had before
the Court. This procedure is also
in consonance with Section 4,
Rule 65 of the Rules of Court.
Also in St. Martin Funeral Home v.
National Labor Relations Commission,
G.R. No. 130866, September 16, 1998,
all petitions for certiorari of the decisions
of the NLRC should be initially filed in
Page 47 of 113
the Court of Appeals in strict
observance of the doctrine on the
hierarchy of courts as the appropriate
forum for the relief desired. Thus, the
Court said:
Appeal and Certiorari Distinguished
Between an appeal and a petition for
certiorari, there are substantial
distinctions which shall be explained
below.
As to the Purpose. Certiorari is a
remedy designed for the correction of
errors of jurisdiction, not errors of
judgment. (Land Bank of the Philippines
v. Court of Appeals, supra, per Callejo
Sr., J.; Microsoft Corporation v. Best
Deal Computer Center Corporation, 389
SCRA 615, 620, September 24, 2002;
Bimeda v. Perez, 93 Phil. 636, 639,
August 26, 1953)
The case of Madrigal Transport Inc. v.
Lapanday Holding Corporation, G.R.
No. 156067, August 11, 2004 also
provided the following distinctions:
As to the Manner of Filing. Over an
appeal, the CA exercises its appellate
jurisdiction and power of review. Over a
certiorari, the higher court uses its
original jurisdiction in accordance with
its power of control and supervision over
the proceedings of lower courts. (Atty.
Paa v. Court of Appeals, 347 Phil. 122,
136, December 4, 1997 (citing Florenz
D. Regalado, Remedial Law
Compendium [6th ed. 1997], pp. 543-
544, comparing an appeal by certiorari
under Rule 45 with a petition for
certiorari; such comparison is also
applicable here).) An appeal is thus a
continuation of the original suit, while a
petition for certiorari is an original and
independent action that was not part of
the trial that had resulted in the rendition
of the judgment or order complained of.
(Sy v. Commission on Settlement of
Land Problems, 417 Phil. 378, 393,
September 12, 2001) The parties to an
appeal are the original parties to the
action. In contrast, the parties to a
petition for certiorari are the aggrieved
party (who thereby becomes the
petitioner) against the lower court or
quasi-judicial agency, and the prevailing
parties (the public and the private
respondents, respectively). (Atty. Paa v.
Court of Appeals,; Yasuda v. Court of
Appeals, 386 Phil. 594, 602, April 12,
2000)
As to the Subject Matter. Only
judgments or final orders and those that
the Rules of Court so declare are
appealable. (§1, Rule 41 of the Rules of
Court.) Since the issue is jurisdiction, an
original action for certiorari may be
directed against an interlocutory order of
the lower court prior to an appeal from
the judgment; or where there is no
appeal or any plain, speedy or adequate
remedy. (Atty. Paa v. Court of Appeals)
As to the Period of Filing. Ordinary
appeals should be filed within fifteen
days from the notice of judgment or final
order appealed from. (§3, Rule 41 of the
Rules of Court) Where a record on
appeal is required, the appellant must
file a notice of appeal and a record on
appeal within thirty days from the said
notice of judgment or final order. A
petition for review should be filed and
served within fifteen days from the
notice of denial of the decision, or of the
petitioner‟s timely filed motion for new
trial or motion for reconsideration. (§1,
Rule 42 of the Rules of Court) In an
Page 48 of 113
appeal by certiorari, the petition should
be filed also within fifteen days from the
notice of judgment or final order, or of
the denial of the petitioner‟s motion for
new trial or motion for reconsideration.
(§2, Rule 45 of the Rules of Court)
On the other hand, a petition for
certiorari should be filed not later than
sixty days from the notice of judgment,
order, or resolution. (§1, Rule 65 of the
Rules of Court) If a motion for new trial
or motion for reconsideration was timely
filed, the period shall be counted from
the denial of the motion.
As to the Need for a Motion for
Reconsideration. A motion for
reconsideration is generally required
prior to the filing of a petition for
certiorari, in order to afford the tribunal
an opportunity to correct the alleged
errors. Note also that this motion is a
plain and adequate remedy expressly
available under the law. (Spouses
Samson
v. Lenjul Realty Corporation, supra;
Interorient Maritime Enterprises, Inc. v.
NLRC, 330 Phil. 493, 502, September
16, 1996; Butuan Bay Wood Export
Corp. v. Court of Appeals, 97 SCRA
297, 305, April 28, 1980. See
exceptions to this rule in Gonzales Jr. v.
Intermediate Appellate Court, 216 Phil.
438, 444, August 28, 1984) Such motion
is not required before appealing a
judgment or final order. (Atty. Paa v.
Court of Appeals, supra.)
Motion for Reconsideration is a
condition sine qua non; exceptions
The Supreme Court in Republic of the
Philippines v. Bayao, G.R. No. 179492,
June 5, 2013 held that a motion for
reconsideration is a condition sine qua
non for filing of a Petition for Certiorari
subject to certain exceptions:
The settled rule is that a Motion
for Reconsideration is a condition
sine qua non for the filing of a
Petition for Certiorari.
(Commissioner of Internal
Revenue v. Court of Tax
Appeals, G.R. No. 190680,
September 13, 2012; Medado v.
Heirs of Consing, G.R. No.
186720, February 8, 2012, 665
SCRA 534, 548 citing Pineda v.
Court of Appeals, G.R. No.
181643, November 17, 2010, 635
SCRA 274, 281-282) Its purpose
is to grant an opportunity for the
court to correct any actual or
perceived error attributed to it by
re-examination of the legal and
factual circumstances of the
case. (Commissioner of Internal
Revenue v. Court of Tax
Appeals, supra)
This rule admits well-defined exceptions
as follows:
Concededly, the settled rule is
that a motion for reconsideration
is a condition sine qua non for
the filing of a petition for
certiorari. Its purpose is to grant
an opportunity for the court to
correct any actual or perceived
error attributed to it by the re-
examination of the legal and
factual circumstances of the
case. The rule is, however,
circumscribed by well-defined
exceptions, such as (a) where the
order is a patent nullity, as where
the court a quo has no
jurisdiction; (b) where the
Page 49 of 113
questions raised in the certiorari
proceedings have been duly
raised and passed upon by the
lower court, or are the same as
those raised and passed upon in
the lower court; (c) where there is
an urgent necessity for the
resolution of the question and
any further delay would prejudice
the interests of the Government
or of the petitioner or the subject
matter of the action is perishable;
(d) where, under the
circumstances, a motion for
reconsideration would be
useless; (e) where petitioner was
deprived of due process and
there is extreme urgency for
relief; (f) where, in a criminal
case, relief from an order of
arrest is urgent and the granting
of such relief by the trial court is
improbable; (g) where the
proceedings in the lower court
are a nullity for lack of due
process; (h) where the
proceeding were ex parte or in
which the petitioner had no
opportunity to object; and (i)
where the issue raised is one
purely of law or where public
interest is involved. (Siok Ping
Tang v. Subic Bay Distribution,
Inc., G.R. No. 162575, December
15, 2010, 638 SCRA 457, 469-
470. See also Republic v.
Pantranco North Express et al.,
G.R. No. 178593, February 15,
2012, 666 SCRA 199, 205-206.
See also Domdom v.
Sandiganbayan, G.R. Nos.
182382-83, February 24, 2010,
613 SCRA 528, 532-533 citing
Tan v. Court of Appeals, 341 Phil.
570, 576-578 [1997]) (Emphasis
provided)

DISTINCTION BETWEEN A FINAL
JUDGMENT OR ORDER AND AN
INTERLOCUTORY ORDER
The Supreme Court in explaining the
distinction between a final judgment or
order, on one hand, and an interlocutory
order, held in Heirs of Spouses Reterta
v. Spouses Loez, G.R. No. 159941,
August 17, 2011 as follows:
The fundamental distinction
between a final judgment or
order, on one hand, and an
interlocutory order, on the other
hand, has been outlined in
Investments, Inc. v. Court of
Appeals, G.R. No. L-60036, 27
January 1987, 147 SCRA 334,
339-341 viz:
The concept of ‘final’ judgment,
as distinguished from one which
has ‘become final’ (or ‘executory’
as of right [final and executory]),
is definite and settled. A ‘final’
judgment or order is one that
finally disposes of a case, leaving
nothing more to be done by the
Court in respect thereto, e.g., an
adjudication on the merits which,
on the basis of the evidence
presented at the trial declares
categorically what the rights and
obligations of the parties are and
which party is in the right; or a
judgment or order that dismisses
an action on the ground, for
instance, of res judicata or
prescription. Once rendered, the
task of the Court is ended, as far
as deciding the controversy or
determining the rights and
liabilities of the litigants is
Page 50 of 113
concerned. Nothing more
remains to be done by the Court
except to await the parties’ next
move (which among others, may
consist of the filing of a motion for
new trial or reconsideration, or
the taking of an appeal) and
ultimately, of course, to cause the
execution of the judgment once it
becomes ‘final’ or, to use the
established and more distinctive
term, ‘final and executory.’
xxx
Conversely, an order that does
not finally dispose of the case,
and does not end the Court‟s
task of adjudicating the parties‟
contentions and determining their
rights and liabilities as regards
each other, but obviously
indicates that other things remain
to be done by the Court, is
„interlocutory,‟ e.g., an order
denying a motion to dismiss
under Rule 16 of the Rules, or
granting a motion for extension of
time to file a pleading, or
authorizing amendment thereof,
or granting or denying
applications for postponement, or
production or inspection of
documents or things, etc. Unlike
a „final‟ judgment or order, which
is appealable, as above pointed
out, an „interlocutory‟ order may
not be questioned on appeal
except only as part of an appeal
that may eventually be taken
from the final judgment rendered
in the case.
DISTINCTION BETWEEN RULE 65
AND RULE 64
In Pates v. COMELEC, G.R. No.
184915, June 30, 2009, the High Court
explained the distinction between Rule
65 and 64 in this manner:
Rule 64, however, cannot simply
be equated to Rule 65 even if it
expressly refers to the latter rule.
They exist as separate rules for
substantive reasons as discussed
below. Procedurally, the most
patent difference between the
two — i.e., the exception that
Section 2, Rule 64 refers to — is
Section 3 which provides for a
special period for the filing of
petitions for certiorari from
decisions or rulings of the
COMELEC en banc. The period
is 30 days from notice of the
decision or ruling (instead of the
60 days that Rule 65 provides),
with the intervening period used
for the filing of any motion for
reconsideration deductible from
the originally-granted 30 days
(instead of the fresh period of 60
days that Rule 65 provides).
PETITION FOR PROHIBITION.
Directed against whom
Any tribunal, corporation, board, officer
or person, whether exercising judicial,
quasi-judicial or
ministerial functions. (Section 2, Rule
65)
Under what circumstance can be
initiated
Page 51 of 113
When the proceedings of any tribunal,
corporation, board, officer or person,
whether exercising judicial, quasi-
judicial or ministerial functions are:
1. without or in excess of its or
his jurisdiction, or with grave
abuse of discretion amounting
to lack or excess of
jurisdiction; and
2. there is no appeal or any
other plain, speedy, and
adequate remedy in the
ordinary course of law.
(Section 2, Rule 65)
Who may initiate
A person aggrieved thereby. (Section 2,
Rule 65)
How to initiate
By filing a verified petition in the proper
court. (Section 2, Rule 65)
What to allege in the petition
By alleging the facts with certainty and
praying that judgment be rendered
commanding the respondent to desist
from further proceedings in the action or
matter specified therein, or otherwise
granting such incidental reliefs as law
and justice may require. (Section 2,
Rule 65)
What to accompany the petition
The petition shall be accompanied by:
1. a certified true copy of the
judgment, order or resolution
subject thereof, copies of all
pleadings and documents
relevant and pertinent thereto,
and
2. a sworn certification of non-
forum shopping as provided in
the third paragraph of section
3, Rule 46. (Section 2, Rule
65)
Requisites of writs of prohibition
In Rivera v. Espiritu, G.R. No. 135547,
January 23, 2002, the requisites of writs
of prohibition was provided:
For writs of prohibition, the
requisites are: (1) the impugned
act must be that of a “tribunal,
corporation, board, officer, or
person, whether exercising
judicial, quasi-judicial or
ministerial functions;” and (2)
there is no plain, speedy, and
adequate remedy in the ordinary
course of law.” (1997 Rules of
Civil Procedure, Rule 65, Sec. 2)
PETITION FOR MANDAMUS.
Directed against whom
Any tribunal, corporation, board, officer
or person. (Section 3, Rule 65)
Page 52 of 113
Under what circumstance can be
initiated
When any tribunal, corporation, board,
officer or person:
1. unlawfully neglects the
performance of an act which
the law specifically enjoins as
a duty resulting from an office,
trust, or station; or
2. unlawfully excludes another
from the use and enjoyment
of a right or office to which
such other is entitled; and
3. there is no other plain, speedy
and adequate remedy in the
ordinary course of law.
(Section 3, Rule 65)
Who can initiate
The person aggrieved thereby. (Section
3, Rule 65)
How to initiate
By filing a verified petition in the proper
court. (Section 3, Rule 65)
What to allege in the petition
By alleging:
1. the facts with certainty; and
2. praying that judgment be
rendered commanding the
respondent, immediately or at
some other time to be
specified by the court, to do
the act required to be done to
 protect the rights of the
petitioner, and
3. to pay the damages sustained
by the petitioner by reason of
the wrongful acts of the
respondent.
4. the petition shall also contain
a sworn certification of non-
forum shopping as provided in
the third paragraph of section
3, Rule 46. (Section 3, Rule
65)

Page 53 of 113
5. QUO WARRANTO
18, 1998 as follows:
5.1 Action by Government against
individuals
What action by Government
An action for the usurpation of a
public office, position or
franchise. (Section 1, Rule 66)
How commenced and in whose name
May be commenced by a verified
petition brought in the name of
the Republic of the Philippines.
(Section 1, Rule 66)
Against whom Against:
(a) A person who usurps, intrudes
into, or unlawfully holds or
exercises a public office, position
or franchise;
(b) A public officer who does or
suffers an act which, by the
provision of law, constitutes a
ground for the forfeiture of his
office; or
(c) An association which acts as a
corporation within the Philippines
without being legally incorporated
or without lawful authority so to
act. (Section 1, Rule 66)
5.2 Nature of quo warranto
proceeding as a legal remedy
The Supreme Court explained quo
warranto proceeding as a legal remedy
in the case of Defensor- Santiago v.
Page 54 of 113
Guingona, G.R. No. 134577, November
A quo warranto proceeding is the
proper legal remedy to determine
the right or title to the contested
public office and to oust the
holder from its enjoyment. (Lota
v. Court of Appeals, 2 SCRA 715,
718, June 30, 1961) The action
may be brought by the solicitor
gen-eral or a public prosecutor (§
2, Rule 66, Rules of Court) or any
person claiming to be entitled to
the public office or position
usurped or unlawfully held or
exercised by another. (§ 5, Rule
66, Rules of Court; See also
Municipality of San Narciso,
Quezon v. Mendez Sr., 239
SCRA 11, 18, December 6,1994;
Tarrosa v. Singson, 232 SCRA
553, 557, May 25, 1994) The
action shall be brought against
the person who allegedly
usurped, intruded into or is
unlawfully holding or exercising
such office. (§ 1, Rule 66, Rules
of Court)
In order for a quo warranto
proceeding to be successful, the
person suing must show that he
or she has a clear right to the
contested office or to use or
exercise the functions of the
office allegedly usurped or
unlawfully held by the
respondent. (Batario, Jr. v.
Parentela, Jr., 9 SCRA 601,
November 29, 1963; Caraon-
Medina v. Quizon, 18 SCRA 562,
October 29, 1966)
5.3 Distinction between quo
warranto and mandamus
In Lota v. Court of Appeals. G.R. No. L-
14803, June 30, 1961 the Supreme
Court discussed the distinction between
quo warranto and mandamus as follows:
While quo warranto and
mandamus are often concurrent
remedies, however, there exists a
clear distinction between the two.
The authorities are agreed that
quo warranto is the remedy to try
the right to an office or franchise
and to oust the holder from its
enjoyment, while mandamus only
lies to enforce clear legal duties,
not to try disputed titles, 38 C.J.
546; 2 Moran, Comments on the
Rules of Court, 1957 ed., 200;
that where there is usurpation or
intrusion into an office, quo
warranto is the proper remedy,
Lino Luna v. Rodriguez, 36 Phil.
491; and that where the
respondent, without claiming any
right to an office, excludes the
petitioner therefrom, the remedy
is mandamus, not quo warranto
Manalo v. Sevilla, 24 Phil. 609;
Lino Luna v. Rodriguez, supra.
5.4 When Solicitor General or
public prosecutor must commence
action
When commenced by the Solicitor
General or public prosecutor
The Solicitor General or a public
prosecutor must commence the action:
Page 55 of 113
1. When directed by the
President of the Philippines,
or
2. When upon complaint or
otherwise he has good reason
to believe that any case
specified in the preceding
section can be established by
proof. (Section 2, Rule 66)
5.5 When Solicitor General or
public prosecutor may commence
action
When to commence with the permission
of court
At the request and upon the
relation of another person, the
Solicitor General or a public
prosecutor may, with the
permission of the court in which
the action is to be commenced,
bring such an action. (Section 3,
Rule 66)
Requirement before commencing the
action
But in such case the officer bringing it
may first require an indemnity for the
expenses and costs of the action in an
amount approved by and to be
deposited in the court by the person at
whose request and upon whose relation
the same is brought. (Section 3, Rule
66)
Relator, defined
A relator is a the person referred in
Section 3 in relation to Section 4 of Rule
66 of the Rules on Civil Procedure.

Relator, female relatrix, (Latin for
“narrator”) is the legal term meaning a
private person at whose relation or on
whose behalf an application for a quo
warranto or mandamus is filed. (A
Dictionary of Modern Legal Usage.
Copyright (c) 1990 Bryan A. Garner,
Oxford University Press, Inc.) The
relator appears as one beneficially
interested, but the action is maintained
on his behalf. The relator furnishes the
knowledge or facts on which an
information or a proceeding in quo
warranto is based. Such a proceeding is
usually in the name of the state, ex rel.
(ex relatione = “[arising] out of the
narration”) of the relator, and so is called
an “ex rel. action”.
(http://en.wikipedia.org/wiki/
Relator_%28law%29 visited last
December 8, 2014)
5.6 When hearing had on
application for permission to
commence action
When notice to be given to respondent
Upon application for permission to
commence such action in accordance
with the next preceding section, the
court shall direct that notice be given to
the respondent so that he may be heard
in opposition thereto. (Section 4, Rule
66)
Effect if permission is granted
If permission is granted, the court shall
issue an order to that effect, copies of
which shall be served on all interested
parties, and the petition shall then be
Page 56 of 113
filed within the period ordered by the
court. (Section 4, Rule 66)
5.7 When an individual may
commence such an action
When an individual to commence a quo
warranto action in his own name
A person claiming to be entitled to a
public office or position usurped or
unlawfully held or exercised by another
may bring an action therefor in his own
name. (Section 5, Rule 66)
5.8 Action commenced by OSG or
fiscal or by an individual in his own
name
The parties who can commence a quo
warranto proceedings was clearly
explained in Feliciano v. Villasin,
G.R. No. 174929, June 27, 2008 as
follows:
It is well-established that Quo
Warranto proceedings determine
the right of a person to the use or
exercise of a franchise or an
office and to oust the holder from
its enjoyment, if the latter‟s claim
is not well- founded, or if he has
forfeited his right to enjoy the
privilege. According to the Rules
of Procedure:
The action may be commenced
for the Government by the
Solicitor General or the fiscal
against a person who usurps,
intrudes into, or unlawfully holds
or exercises a public office,
 position or franchise; a public
officer whose acts constitute a
ground for the forfeiture of his
office; or against an association
which acts as a corporation
without being legally incorporated
or without lawful authority to so
act. (Rules of Court, Rule 66,
Section 1)
The action may also be instituted
by an individual in his own name
who claims to be entitled to the
public office or position usurped
or unlawfully held or exercised by
another. (Rules of Court, Rule 66,
Section 1) (Emphasis supplied.)
5.9 The private person suing must
show a clear right to the contested
office
The High Court explained in Topacio v.
Ong, G.R. No. 179895, December 18,
2005 that for a quo warranto petition to
be successful, the private person suing
must show a clear right to the contested
office and not even a mere preferential
right to be appointed thereto. Thus, the
Court held:
While denominated as a petition
for certiorari and prohibition, the
petition partakes of the nature of
a quo warranto proceeding with
respect to Ong, for it effectively
seeks to declare null and void his
appointment as an Associate
Justice of the Sandiganbayan for
being unconstitutional. While the
petition professes to be one for
certiorari and prohibition,
petitioner even adverts to a “quo
warranto” aspect of the petition.
Page 57 of 113
Being a collateral attack on a
public officer‟s title, the present
petition for certiorari and
prohibition must be dismissed.
The title to a public office may not
be contested except directly, by
quo warranto proceedings; and it
cannot be assailed collaterally,
(Gonzales v. COMELEC, et al.,
129 Phil 7, 29 [1967]) even
through mandamus (Pilar v. Sec.
of the DPWTC, et al., 125 Phil.
766 [1967]) or a motion to annul
or set aside order. (Gamboa, et
al. v. CA, et al., 194 Phil. 624
[1981]) In Nacionalista Party v.
De Vera, 85 Phil. 126 (1949) the
Court ruled that prohibition does
not lie to inquire into the validity
of the appointment of a public
officer.
xxx
Even if the Court treats the case
as one for quo warranto, the
petition is, just the same,
dismissible.
A quo warranto proceeding is the
proper legal remedy to determine
the right or title to the contested
public office and to oust the
holder from its enjoyment. (Sec.
Defensor Santiago v. Sen.
Guingona, Jr., 359 Phil. 276, 302
[1998]) It is brought against the
person who is alleged to have
usurped, intruded into, or
unlawfully held or exercised the
public office, (Rules of Court,
Rule 66, Sec. 1) and may be
commenced by the Solicitor
General or a public prosecutor,
as the case may be, or by any
 person claiming to be entitled to arose, nor to authorize an action for
the public office or position damages in accordance with the
usurped or unlawfully held or provisions of the next preceding section
exercised by another. (Rules of unless the same be commenced within
Court, Rule 66, Sec. 5) one (1) year after the entry of the
judgment establishing the petitioner’s
Nothing is more settled than the right to the office in question. (Section
principle, which goes back to the 11, Rule 66)
1905 case of Acosta v. Flor, 5
Phil. 18 (1905) reiterated in the
recent 2008 case of Feliciano v.
Villasin, G.R. No. 174929, June
27, 2008, 556 SCRA 348 that for
a quo warranto petition to be
successful, the private person
suing must show a clear right to
the contested office. In fact, not
even a mere preferential right to
be appointed thereto can lend a
modicum of legal ground to
proceed with the action. (Vide
Garcia v. Perez, 188 Phil. 43, 47
[1980])

In the present case, petitioner presented

no sufficient proof of a clear and
indubitable franchise to the office of an
Associate Justice of the
Sandiganbayan. He in fact concedes
that he was never entitled to assume the
office of an Associate Justice of the
Sandiganbayan.

5.10 Limitations

When to commence the action

Nothing contained in this Rule shall be

construed to authorize an action against
a public officer or employee for his
ouster from office unless the same be
commenced within one (1) year after the
cause of such ouster, or the right of the
petitioner to hold such office or position,

Page 58 of 113
6. Expropriation
6.1 Eminent domain how exercised
The right of eminent domain shall
be exercised by the filing of a
verified complaint. (Section 1,
Rule 67)
6.2 Allegations to be stated in the
complaint
The verified complaint shall state with
certainty:
1. the right and purpose of
expropriation;
2. describe the real or personal
property sought to
expropriated, and
3. join as defendants all persons
owning or claiming to own, or
occupying, any part thereof or
interest therein, showing, so
far as practicable,
separate interest of each
defendant.
4. If the title to any property
sought to be expropriated
appears to be in the Republic
of the Philippines, although
occupied by private
individuals, or if the title is
otherwise ob-scure or doubtful
so that the plaintiff cannot with
accuracy or certainty specify
who are the real owners,
averment to that effect shall
be made in the complaint.
(Section 1, Rule 67)
6.3 Expropriation is a two-pronged
proceeding
Page 59 of 113
In City of Manila v. Te, G.R. No.
169263, September 21, 2011, the
Supreme Court explained the two-
pronged proceeding involved in
expropriation as follows:
Expropriation is a two-pronged
proceeding: first, the
determination of the authority of
the plaintiff to exercise the power
and the propriety of its exercise in
the context of the facts which
terminates in an order of
dismissal or an order of
condemnation affirming the
plaintiff‟s lawful right to take the
property for the public use or
purpose described in the
complaint and second, the
determination by the court of the
be just compensation for the
property sought to be
expropriated. (Abad v. Fil-Homes
Realty and Development
Corporation, G.R. No. 189239,
November 24, 2010, 636 SCRA
the 247, 255, citing Lintag v. National
Power Corporation, G.R. No.
158609, July 27, 2007, 528
SCRA 287)
In the case of Barangay San Roque,
Talisay Cebu vs. Hier of Francisco
Pastor, G.R. No. 138896, June 20, 2000
citing National Power Corporation v.
Jocson, 206 SCRA 520, 536, February
25, 1992, per Davide Jr., J the Supreme
Court ruled that expropriation
proceedings have two phases:
“The first is concerned with the
determination of the authority of
the plaintiff to exercise the power
of eminent domain and the
propriety of its exercise in the
context of the facts involved in
the suit. It ends with an order, if
not of dismissal of the action, „of
condemnation declaring that the
plaintiff has a lawful right to take
the property sought to be
condemned, for the public use or
purpose described in the
complaint, upon the payment of
just compensation to be
determined as of the date of the
filing of the complaint.‟ An order
of dismissal, if this be ordained,
would be a final one, of course,
since it finally disposes of the
action and leaves nothing more
to be done by the Court on the
merits. So, too, would an order of
condemnation be a final one, for
thereafter as the Rules expressly
state, in the proceedings before
the Trial Court, „no objection to
the exercise of the right of
condemnation (or the propriety
thereof) shall be filed or heard.‟
“The second phase of the
eminent domain action is
concerned with the determination
by the court of the just
compensation for the property
sought to be taken.‟ This is done
by the Court with the assistance
of not more than three (3)
commissioners. The order fixing
the just compensation on the
basis of the evidence before, and
findings of, the commissioners
would be final, too. It would finally
dispose of the second stage of
the suit, and leave nothing more
to be done by the Court regarding
the issue. x x x‟”
Page 60 of 113
6.4 Guidelines for Expropriation
Proceedings under RA 8974
Whenever it is necessary to acquire real
property for the right-of-way or location
for any national government
infrastructure project through
expropriation, the appropriate
implementing agency shall initiate the
expropriation proceedings before the
proper court under the following
guidelines:
(a) Upon the filing of the complaint,
and after due notice to the
defendant, the implementing
agency shall immediately pay the
owner of the property the amount
equivalent to the sum of (1) one
hundred percent (100%) of the
value of the property based on
the current relevant zonal
valuation of the Bureau of
Internal Revenue (BIR); and (2)
the value of the improvements
and/or structures as determined
under Section 7 hereof;
(b) In provinces, cities, municipalities
and other areas where there is no
zonal valuation, the BIR is hereby
mandated within the period of
sixty (60) days from the date of
the expropriation case, to come
up with a zonal valuation for said
area; and
(c) In case the completion of a
government infrastructure project
is of utmost urgency and
importance, and there is no
existing valuation of the area
concerned, the implementing
agency shall immediately pay the
owner of the property its
proffered value taking into
consideration the standards
prescribed in Section 5 hereof.

Upon compliance with the guidelines
abovementioned, the court shall
immediately issue to the implementing
agency an order to take possession of
the property and start the
implementation of the project.
Before the court can issue a Writ of
Possession, the implementing agency
shall present to the court a certificate of
availability of funds from the proper
official concerned.
In the event that the owner of the
property contests the implementing
agency‟s proffered value, the court shall
determine the just compensation to be
paid the owner within sixty (60) days
from the date of filing of the
expropriation case. When the decision
of the court becomes final and
executory, the implementing agency
shall pay the owner the difference
between the amount already paid and
the just compensation as determined by
the court. (Section 4, RA 8974)
Procedure. On the part of local
government units, expropriation
is also governed by Section 19 of
the Local Government Code.
Accordingly, in expropriation
proceedings, the requisites for
authorizing immediate entry are
as follows: (1) the filing of a
complaint for expropriation
sufficient in form and substance;
and (2) the deposit of the amount
equivalent to 15 percent of the
fair market value of the property
to be expropriated based on its
current tax declaration. (Biglang-
awa v. Bacalla, 345 SCRA 562,
November 22, 2000)

6.5 Requisites of expropriation

under Section 19 of the Local
Government Code

In Bardillon v. Barangay Masili of

Calamba Laguna, G.R. No. 146886,
April 30, 2003, in explaining the
requisites for the legality of entry into
premises the Supreme Court held:

The requirements for the

issuance of a writ of possession
in an expropriation case are
expressly and specifically
governed by Section 2 of Rule 67
of the 1997 Rules of Civil

Page 61 of 113
7. Foreclosure of real estate
mortgage 7.2 The Judgment on foreclosure
for payment or sale

What constitute judgment on foreclosure

7.1 Concept of foreclosure of
mortgage If upon the trial in such action the court
shall find the facts set forth in the
The concept of foreclosure has been complaint to be true it shall ascertain:
discussed by the Supreme Court in
Magna Financial Services, Group, Inc.
1. the amount due to the plaintiff
v. Colarina, G.R. No. 158635,
upon the mortgage debt or
December 9, 2005:
obligation, including interest
and other charges as
Foreclosure is one of the
approved by the court, and
remedies available to a
costs; and
mortgagee by which he subjects
2. shall render judgment for the
the mortgaged property to the
sum so found due; and
satisfaction of the obligation to
3. order that the same be paid to
secure that for which the
the court or to the judgment
mortgage was given. Foreclosure
obligee within a period of not
may be effected either judicially
less than ninety (90) days nor
or extrajudicially, that is, by
more than one hundred
ordinary action or by foreclosure
twenty (120) days from the
under power of sale contained in
entry of judgment; and
the mortgage. It may be effected
4. that in default of such
by the usual methods, including
payment the property shall be
sale of goods at public auction.
sold at public auction to
(59 C.J.S. 482 cited in De Leon
satisfy the judgment. (Section
Credit Transaction, 1995 Ed., p.
2, Rule 67)
384) Extrajudicial foreclosure, as
chosen by the petitioner, is
attained by causing the
mortgaged property to be seized 7.3 Extrajudicial foreclosure and
by the sheriff, as agent of the Judicial foreclosure distinguished
mortgagee, and have it sold at
public auction in the manner The first is extrajudicial and summary in
prescribed by Section 14 of Act nature while the second is a court
No. 1508, or the Chattel action. (Prudential Bank v.
Mortgage Law. (Bataan Martinez, G.R. No. L-51768, September
Hardwood Corporation v. Dy Pac 4, 1990)
and Co., G.R. No. L- 29492, 29
February 1972, 43 SCRA 450) The first is governed by Rule 68,
This rule governs extrajudicial Rules of Court while the second
foreclosure of chattel mortgage. is governed by Act No. 3135.

Page 62 of 113
 In the first while Act No. 3135, as
amended (re extrajudicial
foreclosure) discloses nothing as
to the mortgagee‟s right to
recover such deficiency. But
there is no provision thereunder
which expressly or impliedly
prohibits such recovery while in
the second deficiency judgment
is rendered by the court under
Section 6 Rule 68.
In the first there is right of
redemption while in the second
there is only equity of redemption
except when the mortgagee is a
bank, quasi-bank or trust entity
under Section 47 of Republic Act
No. 8791 known as The General
Banking Law of 2000 right of
redemption exists.
7.4 Distinction between equity of
redemption and right of redemption
In Huerta Alba Resort, Inc. v. Court of
Appeals, G.R. No. 128567, September
1, 2000, the Supreme Court ruled on the
distinction between the equity of
redemption and right of redemption,
citing the case of Gregorio Y. Limpin vs.
Intermediate Appellate Court, 166
SCRA 87 comes to the fore. Held the
Court in the said case:
“The equity of redemption is, to
be sure, different from and should
not be confused with the right of
redemption.
The right of redemption in relation
to a mortgage — understood in
the sense of a prerogative to re-
acquire mortgaged property after
registration of the foreclosure
Page 63 of 113
sale — exists only in the case of
the extrajudicial foreclosure of the
mortgage. No such right is
recognized in a judicial
foreclosure except only where the
mortgagee is the Philippine
National Bank or a bank or
banking institution.
Where a mortgage is foreclosed
extrajudicially, Act 3135 grants to
the mortgagor the right of
redemption within one (1) year
from the registration of the
sheriff‟s certificate of foreclosure
sale.
Where the foreclosure is judicially
effected, however, no equivalent
right of redemption exists. The
law declares that a judicial
foreclosure sale, „when
confirmed by an order of the
court, x x shall operate to divest
the rights of all the parties to the
action and to vest their rights in
the purchaser, subject to such
rights of redemption as may be
allowed by law.’ Such rights
exceptionally „allowed by law‟
(i.e., even after confirmation by
an order of the court) are those
granted by the charter of the
Philippine National Bank (Acts
No. 2747 and 2938), and the
General Banking Act (R.A. 337).
These laws confer on the
mortgagor, his successors in
interest or any judgment creditor
of the mortgagor, the right to
redeem the property sold on
foreclosure — after confirmation
by the court of the foreclosure
sale — which right may be
exercised within a period of one
(1) year, counted from the date of
registration of the certificate of
sale in the Registry of Property.
But, to repeat, no such right of
redemption exists in case of
judicial foreclosure of a mortgage
if the mortgagee is not the PNB
or a bank or banking institution.
In such a case, the foreclosure
sale, „when confirmed by an
order of the court. x x shall
operate to divest the rights of all
the parties to the action and to
vest their rights in the purchaser.‟
There then exists only what is
known as the equity of
redemption.This is simply the
right of the defendant mortgagor
to extinguish the mortgage and
retain ownership of the property
by paying the secured debt within
the 90-day period after the
judgment becomes final, in
accordance with Rule 68, or even
after the foreclosure sale but prior
to its confirmation.
Section 2, Rule 68
provides that -‟ x x If upon
the trial x x the court shall
find the facts set forth in
the complaint to be true, it
shall ascertain the amount
due to the plaintiff upon
the mortgage debt or
obligation, including
interest and costs, and
shall render judgment for
the sum so found due and
order the same to be paid
into court within a period of
not less than ninety (90)
days from the date of the
service of such order, and
that in default of such
payment the property be
Page 64 of 113
sold to realize the
mortgage debt and costs.‟
This is the mortgagor‟s equity (not right)
of redemption which, as above stated,
may be exercised by him even beyond
the 90-day period „from the date of
service of the order,‟ and even after the
foreclosure sale itself, provided it be
before the order of confirmation of the
sale. After such order of confirmation,
no redemption can be effected any
longer.” (166 SCRA 93-95)
(Underscoring supplied)
7.5 One (1) year period reckoned
from registration of certificate of sale
There is no dispute that in extrajudicial
foreclosures under Act 3135, the debtor
or his or her successors-in- interest may
redeem the property within one year.
This redemption period should be
reckoned from the date of registration of
the certificate of sale. (Development
Bank of the Philippines v. Gagarani,
G.R. No. 172248, September 17, 2008
citing Belisario v. Intermediate Appellate
Court, G.R. No. 73503, 30 August 1988,
165 SCRA 101, 107, citing PNB v. CA,
et al., G.R. L-30831 and L-31176, Nov.
21, 1979, 94 SCRA 357, 371)
7.6 Period of right of redemption
of juridical persons in extrajudicial
foreclosure
In Goldenway Merchandising
Corporation v. Equitable PCI Bank; G.R.
No. 195540, March 13, 2013, the
Supreme Court explained that under
Section 47 of RA 8791 an exception is
thus made in the case of juridical
persons to exercise the right of
redemption from the date of foreclosure
sale, and expires upon registration of
the certificate of sale or three months
after foreclosure, whichever is earlier.
Thus, the Supreme Court said:
The law governing cases of
extrajudicial foreclosure of
mortgage is Act No. 3135,14 as
amended by Act No. 4118.
Section 6 thereof provides:
SEC. 6. In all cases in which an
extrajudicial sale is made under
the special power hereinbefore
referred to, the debtor, his
successors-in interest or any
judicial creditor or judgment
creditor of said debtor, or any
person having a lien on the
property subsequent to the
mortgage or deed of trust under
which the property is sold, may
redeem the same at any time
within the term of one year from
and after the date of the sale;
and such redemption shall be
governed by the provisions of
sections four hundred and sixty-
four to four hundred and sixty-six,
inclusive, of the Code of Civil
Procedure,15 in so far as these
are not inconsistent with the
provisions of this Act.
The one-year period of
redemption is counted from the
date of the registration of the
certificate of sale. In this case,
the parties provided in their real
estate mortgage contract that
upon petitioner‟s default and the
latter‟s entire loan obligation
becoming due, respondent may
Page 65 of 113
immediately foreclose the
mortgage judicially in accordance
with the Rules of Court, or
extrajudicially in accordance with
Act No. 3135, as amended.
However, Section 47 of R.A. No.
8791 otherwise known as “The
General Banking Law of 2000”
which took effect on June 13,
2000, amended Act No. 3135.
Said provision reads:
SECTION 47. Foreclosure of Real
Estate Mortgage.—In the event of
foreclosure, whether judicially or
extrajudicially, of any mortgage on real
estate which is security for any loan or
other credit accommodation granted,
the mortgagor or debtor whose real
property has been sold for the full or
partial payment of his obligation shall
have the right within one year after the
sale of the real estate, to redeem the
property by paying the amount due
under the mortgage deed, with interest
thereon at the rate specified in the
mortgage, and all the costs and
expenses incurred by the bank or
institution from the sale and custody of
said property less the income derived
therefrom. However, the purchaser at
the auction sale concerned whether in a
judicial or extrajudicial foreclosure shall
have the right to enter upon and take
possession of such property
immediately after the date of the
confirmation of the auction sale and
administer the same in accordance with
law. Any petition in court to enjoin or
restrain the conduct of foreclosure
proceedings instituted pursuant to this
provision shall be given due course only
upon the filing by the petitioner of a
bond in an amount fixed by the court
conditioned that he will pay all the
damages which the bank may suffer by
the enjoining or the restraint of the
foreclosure proceeding.
Notwithstanding Act 3135, juridical
persons whose property is being sold
pursuant to an extrajudicial foreclosure,
shall have the right to redeem the
property in accordance with this
provision until, but not after, the
registration of the certificate of
foreclosure sale with the applicable
Register of Deeds which in no case
shall be more than three (3) months
after foreclosure, whichever is earlier.
Owners of property that has been sold
in a foreclosure sale prior to the
effectivity of this Act shall retain their
redemption rights until their expiration.
(Emphasis supplied.)
Under the new law, an exception
is thus made in the case of
juridical persons which are
allowed to exercise the right of
redemption only “until, but not
after, the registration of the
certificate of foreclosure sale”
and in no case more than three
(3) months after foreclosure,
whichever comes first. (See A.M.
No. 99-10- 05-0 Re: Procedure in
Extra-Judicial Foreclosure of
Mortgages, August 7, 2001
[Unsigned Resolution])
xxx
Section 47 did not divest juridical
persons of the right to redeem
their foreclosed properties but
only modified the time for the
exercise of such right by reducing
the one-year period originally
provided in Act No. 3135. The
new redemption period
commences from the date of
Page 66 of 113
foreclosure sale, and expires
upon registration of the certificate
of sale or three months after
foreclosure, whichever is earlier.
There is likewise no retroactive
application of the new redemption
period because Section 47
exempts from its operation those
properties foreclosed prior to its
effectivity and whose owners
shall retain their redemption
rights under Act No. 3135.
xxx
The right of redemption being
statutory, it must be exercised in
the manner prescribed by the
statute, (See Mateo v. Court of
Appeals, 99 Phil. 1042 [1956])
and within the prescribed time
limit, to make it effective.
Furthermore, as with other
individual rights to contract and to
property, it has to give way to
police power exercised for public
welfare. (Beltran v. Secretary of
Health, supra note 18, at 587,
citing Vda. de Genuino v. Court
of Agrarian Relations, No. L-
25035, February 26, 1968, 22
SCRA 792, 796-797)
7.7 Reckoning period of equity of
redemption
The reckoning period of equity of
redemption was explained in Spouses
Publico v. Bautista, G.R. No. 174096,
July 20, 2010 as follows:
Clutching at straws, petitioners
claim that they were deprived of
the equity of redemption when
the trial court failed to state the
 period within which they could
redeem. The Court of Appeals,
however, did specify a period of
“ninety (90) days from finality of
judgment” to pay the adjudged
amount. This is in consonance
with the period mentioned by
Section 2, Rule 68 of the 1997
Rules of Civil Procedure. (Sec. 2
of Rule 68 of the Rules of Civil
Procedures) While the trial court
did not use the phrase “entry of
judgment” as the reckoning point
for the redemption period, the
Rules provide that the date of
finality of the judgment shall be
deemed to be the date of its
entry. (Sec. 2 of Rule 36 of the
Rules of Civil Procedure)
7.8 Rule on period of redemption
Redemption period:
1. When the mortgagor is a juridical
person and mortgagee is a bank, quasi-
bank or trust entity
a. Judicial foreclosure —
There is right
redemption. According to
the first paragraph of
Section 47 of Republic Act
No. 8791 known as The
General Banking Law of
2000 in the event of
foreclosure, whether
judicially or extrajudicially,
of any mortgage on real
estate which is security for
any loan or other credit
accommodation granted,
the mortgagor or debtor
Page 67 of 113
whose real property has
been sold for the full or
partial payment of his
obligation shall have the
right within one year after
the sale of the real estate,
to redeem the property by
paying the amount due
under the mortgage deed,
with interest thereon at the
rate specified in the
mortgage, and all the
costs and expenses
incurred by the bank or
institution from the sale
and custody of said
property less the income
derived therefrom.
b. Extrajudicial foreclosure
— There is equity of
redemption. According to
the second paragraph of
Section 47 of Republic Act
No. 8791 known as The
General Banking Law of
2000, “Notwithstanding Act
3135, juridical persons
whose property is being
sold pursuant to an
extrajudicial foreclosure,
shall have the right to
redeem the property in
of accordance with this
provision until, but not
after, the registration of the
certificate of foreclosure
sale with the applicable
Register of Deeds which in
no case shall be more
than three (3) months after
foreclosure, whichever is
earlier. “The new
redemption period
commences from the date
of foreclosure sale,and
 expires upon registration
of the certificate of sale or
three months after
foreclosure, whichever is
earlier.” (Goldenway
Merchandising
Corporation vs. Equitable
PCI Bank, G.R. No.
195540, March 13,2013)
2. When the mortgagor is an
individual (non-juridical person) and
mortgagee is a bank, quasi-bank or trust
entity
(a) Judicial foreclosure — There is
right of redemption. According to
the first paragraph of Section 47
of Republic Act No. 8791 known
as The General Banking Law of
2000 in the event of foreclosure,
whether judicially or
extrajudicially, of any mortgage
on real estate which is security
for any loan or other credit
accommodation granted, the
mortgagor or debtor whose real
property has been sold for the full
or partial payment of his
obligation shall have the right
within one year after the sale of
the real estate, to redeem the
property by paying the amount
due under the mortgage deed,
with interest thereon at the rate
specified in the mortgage, and all
the costs and expenses incurred
by the bank or institution from the
sale and custody of said property
less the income derived
therefrom.
(b) Extrajudicial foreclosure — There
is right of redemption. According
Page 68 of 113
to the first paragraph of Section
47 of Republic Act No. 8791
known as The General Banking
Law of 2000 in the event of
foreclosure, whether judicially or
extrajudicially, of any mortgage
on real estate which is security
for any loan or other credit
accommodation granted, the
mortgagor or debtor whose real
property has been sold for the full
or partial payment of his
obligation shall have the right
within one year after the sale of
the real estate, to redeem the
property by paying the amount
due under the mortgage deed,
with interest thereon at the rate
specified in the mortgage, and all
the costs and expenses incurred
by the bank or institution from the
sale and custody of said property
less the income derived
therefrom.
7.9 Right of redemption in judicial
foreclosure
As a rule, there is no right of redemption
in judicial foreclosure under Rule 69 but
only equity of redemption. This is simply
the right of the defendant mortgagor to
extinguish the mortgage and retain
ownership of the property by paying the
secured debt within the 90-day period
nor more than 120 days from the entry
of judgment (Rule 68, Section 2) or even
after foreclosure sale but prior to
confirmation of sale (Huerta Alba
Resort, Inc. v. Court of Appeals, G.R.
No. 128567, September 1, 2000).
However, when the mortgagee is a
bank, quasi-bank or trust entity in the
event of foreclosure, whether judicially
or extrajudicially, of any mortgage on
real estate which is security for any loan
or other credit accommodation granted,
the mortgagor or debtor whose real
property has been sold for the full or
partial payment of his obligation shall
have the right within one year after the
sale of the real estate, to redeem the
property by paying the amount due
under the mortgage deed, with interest
thereon at the rate specified in the
mortgage, and all the costs and
expenses incurred by the bank or
institution from the sale and custody of
said property less the income derived
therefrom. [Underscore supplied]
(Section 47 of Republic Act No. 8791
known as The General Banking Law of
2000)
7.10 When purchaser can enter and
take possession of property under
RA 8791
a. Mortgagee is a bank, quasi-
bank, trust entity
The purchaser at the auction sale
concerned whether in a judicial or
extra-judicial foreclosure shall
have the right to enter upon and
take possession of such property
immediately after the date of the
confirmation of the auction sale
and administer the same in
accordance with law. (Section 47
of Rule 8791, The General
Banking Law of 2000)
b. Mortgagee is not a bank,
quasi-bank or trust entity
Page 69 of 113
Upon the finality of the order of
confirmation or upon the
expiration of the period of
redemption when allowed by law,
the purchaser at the auction sale
or last redemptioner, if any, shall
be entitled to the possession of
the property unless a third party
is actually holding the same
adversely to the judgment
obligor. The said purchaser or
last redemptioner may secure a
writ of possession, upon motion,
from the court which ordered the
foreclosure. (second paragraph
of Section 3, Rule 68)
7.11 Sale of mortgaged property;
effect
Effect of defendant’s failure to pay
within the period
When the defendant, after being
directed to do so fails to pay the amount
of the judgment within a period of not
less than ninety (90) days nor more than
one hundred twenty (120) days from the
entry of judgment, the court, upon
motion, shall order the property to be
sold in the manner and under the
provisions of Rule 39 and other
regulations governing sales of real
estate under execution. (Section 3, Rule
68)
Effect of sale of the property mortgaged
The effect of the sale of the property
mortgaged are as follows:
1. Such sale shall not affect the
rights of persons holding prior
encumbrances upon the property
or a part thereof, and
2. When confirmed by an order of
the court, also upon motion, it
shall operate to divest the rights
in the property of all the parties to
the action and to vest their rights
in the purchaser, subject to such
rights of redemption as may be
allowed by law.
3. Upon the finality of the order of
confirmation or upon the
expiration of the period of
redemption when allowed by law,
the purchaser at the auction sale
or last redemptioner, if any, shall
be entitled to the possession of
the property unless a third party
is actually holding the same
adversely to the judgment
obligor. The said purchaser or
last redemptioner may secure a
writ of possession, upon motion,
from the court which ordered the
foreclosure. (Section 3, Rule 68)
Effect of finality of the order of
confirmation or expiration of period to
redeem
Who is entitled to possession of
property foreclosed
The purchaser at the auction
sale or last redemptioner, if
any, shall be entitled to the
possession of the property. (last
paragraph, Section 3, Rule 68)
Page 70 of 113
When entitled to possession of property
foreclosed
Upon the finality of the order of
confirmation or upon the
expiration of the period of
redemption when allowed by
law. (last paragraph, Section 3,
Rule 68)
Exception
Unless a third party is actually
holding the same adversely to
the judgment obligor. (last
paragraph, Section 3, Rule 68)
How to effect possession of property
foreclosed
The said purchaser or last redemptioner
may secure a writ of possession, upon
motion, from the court which ordered the
foreclosure. (last paragraph, Section 3,
Rule 68)
7.12 Rule on issuance of writ of
possession
In Spouses Fortaleza v. Spouses
Lapitan, G.R. No. 178288, August 15,
2012, the Supreme Court explained the
rules on issuance of writ of possession
in this way:
Spouses Fortaleza claim that the
RTC grievously erred in ignoring
the apparent nullity of the
mortgage and the subsequent
foreclosure sale. For them, the
RTC should have heard and
considered these matters in
deciding the case on its merits.
They relied on the cases of
Barican (245 Phil. 316 [1988])
and Cometa (235 Phil. 569
[1987]) in taking exception to the
ministerial duty of the trial court to
grant a writ of possession. But
the cited authorities are not on all
fours with this case. In Barican,
we held that the obligation of a
court to issue a writ of
possession ceases to be
ministerial if there is a third party
holding the property adversely to
the judgment debtor. Where such
third party exists, the trial court
should conduct a hearing to
determine the nature of his
adverse possession. And in
Cometa, there was a pending
action where the validity of the
levy and sale of the properties in
question were directly put in
issue which this Court found pre-
emptive of resolution. For if the
applicant for a writ of possession
acquired no interest in the
property by virtue of the levy and
sale, then, he is not entitled to its
possession. Moreover, it is
undisputed that the properties
subject of said case were sold at
an unusually lower price than
their true value. Thus, equitable
considerations motivated this
Court to withhold the issuance of
the writ of possession to prevent
injustice on the other party.
Here, there are no third parties
holding the subject property
adversely to the judgment debtor.
Page 71 of 113
It was spouses Fortaleza
themselves as debtors-
mortgagors who are occupying
the subject property. They are not
even strangers to the foreclosure
proceedings in which the ex parte
writ of possession was applied
for. Significantly, spouses
Fortaleza did not file any direct
action for annulment of the
foreclosure sale of the subject
property. Also, the peculiar
circumstance of gross
inadequacy of the purchase price
is absent.
Accordingly, unless a case falls
under recognized exceptions
provided by law (RULES OF
COURT, Rule 39, Section 35,
which is made applicable to the
extrajudicial foreclosure of real
estate mortgages by Section 6 of
Act 3135) and jurisprudence,
(See Metropolitan Bank and Trust
Co. v. Lamb Construction
Consortium Corporation, G.R.
No. 170906, November 27, 2009,
606 SCRA 159; Cometa v.
Intermediate Appellate Court,
supra; Sulit v. Court of Appeals,
335 Phil. 914 [1997]) we maintain
the ex parte, non-adversarial,
summary and ministerial nature
of the issuance of a writ of
possession as outlined in Section
7 of Act No. 3135, as amended
by Act No. 4118, which provides:
SECTION 7. In any sale made under
the provisions of this Act, the purchaser
may petition the Court of First Instance
of the province or place where the
property or any part thereof is situated,
to give him possession thereof during
the redemption period, furnishing bond
in an amount equivalent to the use of
the property for a period of twelve
months, to indemnify the debtor in case
it be shown that the sale was made
without violating the mortgage or without
complying with the requirements of this
Act. Such petition shall be made under
oath and filed in form of an ex parte
motion x x x and the court shall, upon
approval of the bond, order that a writ of
possession issue, addressed to the
sheriff of the province in which the
property is situated, who shall execute
said order immediately. (Emphasis
supplied.)
Under the provision cited above,
the purchaser in a foreclosure
sale may apply for a writ of
possession during the
redemption period. Notably, in
this case, the one-year period for
the spouses Fortaleza to redeem
the mortgaged property had
already lapsed. Furthermore,
ownership of the subject property
had already been consolidated
and a new certificate of title had
been issued under the name of
the spouses Lapitan. Hence, as
the new registered owners of the
subject property, they are even
more entitled to its possession
and have the unmistakable right
to file an ex parte motion for the
issuance of a writ of possession.
7.13 Prescription of the right to a
writ of possession
In Spouses Edralin v. Philippine
Veterans Bank, G.R. No. 168523, March
9, 2011 in resolving the question: Does
Page 72 of 113
the right to a writ of possession
prescribe? Supreme Court said:
Petitioners assail the CA‟s ruling
that the issuance of a writ of
possession does not prescribe.
They maintain that Articles 1139,
(Civil Code, Article 1139. Actions
prescribe by the mere lapse of
time fixed by law.) 1149, (Civil
Code, Article 1149. All other
actions whose periods are not
fixed in this Code or in other laws
must be brought within five years
from the time the right of action
accrues.) and 1150 (Civil Code,
Article 1150. The time for
prescription for all kinds of
actions, when there is no special
provision which ordains
otherwise, shall be counted from
the day they may be brought.) of
the Civil Code regarding
prescriptive periods cover all
kinds of action, which necessarily
include the issuance of a writ of
possession. Petitioners posit that,
for purposes of the latter, it is the
five-year prescriptive period
provided in Article 1149 of the
Civil Code which applies because
Act No. 3135 itself did not provide
for its prescriptive period. Thus,
Veterans Bank had only five
years from September 12, 1983,
the date when the Certificate of
Sale was issued in its favor, to
move for the issuance of a writ of
possession.
We cannot accept petitioners‟
contention. We have held before
that the purchaser‟s right “to
request for the issuance of the
writ of possession of the land
never prescribes.” (Spouses
 Paderes v. Court of Appeals, 502
Phil. 76, 97 (2005), citing Rodil v.
Judge Benedicto, 184 Phil. 108
[1980]) “The right to possess a
property merely follows the right
of ownership,” (Metropolitan Bank
and Trust Co. v. Santos, G.R. No.
157867, December 15, 2009, 608
SCRA 222, 234) and it would be
illogical to hold that a person
having ownership of a parcel of
land is barred from seeking
possession thereof. In Calacala
v. Republic of the Philippines,
502 Phil. 680 (2005) the Republic
was the highest bidder in the
public auction but failed for a long
period of time to execute an
Affidavit of Consolidation and to
seek a writ of possession.
Calacala insisted that, by such
inaction, the Republic‟s right over
the land had prescribed, been
abandoned or waived. The
Court‟s language in rejecting
Calacala‟s theory is illuminating:
[T]he Republic‟s failure to execute the
acts referred to by the petitioners within
ten (10) years from the registration of
the Certificate of Sale cannot, in any
way, operate to restore whatever rights
petitioners‟ predecessors-in-interest had
over the same. For sure, petitioners
have yet to cite any provision of law or
rule of jurisprudence, and we are not
aware of any, to the effect that the
failure of a buyer in a foreclosure sale to
secure a Certificate of Final Sale,
execute an Affidavit of Consolidation of
Ownership and obtain a writ of
possession over the property thus
acquired, within ten (10) years from the
registration of the Certificate of Sale will
operate to bring ownership back to him
Page 73 of 113
whose property has been previously
foreclosed and sold. x x x
xxxx
Moreover, with the rule that the
expiration of the 1-year redemption
period forecloses the obligors‟ right to
redeem and that the sale thereby
becomes absolute, the issuance
thereafter of a final deed of sale is at
best a mere formality and mere
confirmation of the title that is already
vested in the purchaser. x x x (Id. at
689-691)
Moreover, the provisions cited by
petitioners refer to prescription of
actions. An action is “defined as
an ordinary suit in a court of
justice, by which one party
prosecutes another for the
enforcement or protection of a
right, or the prevention or redress
of a wrong.” (Metropolitan Bank
and Trust Co. v. Santos, supra
note 55 at 236, citing Ancheta v.
Metropolitan Bank and Trust
Company, Inc., 507 Phil. 161
[2005]) On the other hand “[a]
petition for the issuance of the
writ, under Section 7 of Act No.
3135, as amended, is not an
ordinary action filed in court, by
which one party „sues another for
the enforcement or protection of
a right, or prevention or redress
of a wrong.‟ It is in the nature of
an ex parte motion [in] which the
court hears only one side. It is
taken or granted at the instance
and for the benefit of one party,
and without notice to or consent
by any party adversely affected.
Accordingly, upon the filing of a
proper motion by the purchaser in
 a foreclosure sale, and the
approval of the corresponding
bond, the writ of possession
issues as a matter of course and
the trial court has no discretion
on this matter.” (Metropolitan
Bank and Trust Co. v. Bance,
G.R. No. 167280, April 30, 2008,
553 SCRA 507, 515-516.
Emphasis supplied)
7.14 Deficiency judgment
Effect of deficiency
If upon the sale of any real property
there be a balance due to the plaintiff
after applying the proceeds of the sale
upon motion the court shall:
1. render judgment against the
defendant for any such balance
for which, by the record of the
case, he may be personally
liable to the plaintiff, upon which
execution may issue immediately
if the balance is all due at the
time of the rendition of the
judgment;
2. otherwise the plaintiff shall be
entitled to execution at such time
as the balance remaining
becomes due under the terms of
the original contract, which time
shall be stated in the judgment.
(Section 6, Rule 68)
Page 74 of 113
7.15 Deficiency judgment, defined
It refers to judgment for any unpaid
balance of the obligation, which remains
after foreclosure of mortgage, judicial or
extrajudicial, which a creditor may
secure from the court. (Phil. Bank of
Commerce v. de Vera, 6 SCRA 1026
[1962]) In extrajudicial foreclosure of
mortgage, where the proceeds of the
sale are insufficient to pay the debt, the
mortgagee has the right to recover the
deficiency from the debtor (Prudential
Bank v. Martinez, 189 SCRA 612
[1990]). In a foreclosure, the deficiency
is determined by simple arithmetical
computation immediately after
foreclosure (United Planters Sugar
Milling Co., Inc. (UPSUMCO) v. CA, 527
SCRA 336 [2007])
7.16 Prescription of an action to
recover deficiency
In Quirino Gonzales Logging
Concessionaire v. Court of Appeals,
G.R. No. 126568, April 30, 2003, the
Supreme Court explained the nature of
an action to recover deficiency and its
prescriptive period in this wise:
With respect to the first to the fifth
causes of action, as gleaned from
the complaint, the Bank seeks
the recovery of the deficient
amount of the obligation after the
foreclosure of the mortgage.
Such suit is in the nature of a
mortgage action because its
purpose is precisely to enforce
the mortgage contract. (Caltex
Philippines, Inc. v. Intermediate
Appellate Court, 176 SCRA 741,
754 [1989]) A mortgage action
prescribes after ten years from
the time the right of action
accrued. (Civil Code, Article
1142. The right of action accrues
when there exists a cause of
action, which consists of 3
elements, namely: a) a right in
favor of the plaintiff by whatever
means and under whatever law it
arises or is created; b) an
obligation on the part of
defendant to respect such right;
and c) an act or omission on the
part of such defendant violative of
the right of the plaintiff
(Parañaque Kings Enterprises,
Inc. v. Court of Appeals, 268
SCRA 727, 739 [1997]; Espaňol
v. Chairman, Philippine Veterans
Administration, 137 SCRA 314,
318 [1985] [citations omitted])
The law gives the mortgagee the
right to claim for the deficiency
resulting from the price obtained
in the sale of the property at
public auction and the
outstanding obligation at the time
of the foreclosure proceedings.
(DBP v. Tomeldan, 101
SCRA171, 174 (1980) (citations
omitted); See also Development
Bank of the Philippines v. Mirang,
66 SCRA 141, 144-145 [1975],
citing Philippine Bank of
Commerce v. Tomas de Vera 6
SCRA 1026 [1962]) In the
present case, the Bank, as
mortgagee, had the right to claim
payment of the deficiency after it
had foreclosed the mortgage in
1965. (See id) In other words, the
prescriptive period started to run
against the Bank in 1965. As it
filed the complaint only on
January 27, 1977, more than ten
years had already elapsed,
Page 75 of 113
hence, the action on its first to
fifth causes had by then
prescribed. No other conclusion
can be reached even if the suit is
considered as one upon a written
contract or upon an obligation to
pay the deficiency which is
created by law, (Id.) the
prescriptive period of both being
also ten years. (Civil Code, Art.
1144)
7.17 When no deficiency allowed
In the following cases, deficiency
judgment is not allowed:
1. Recto Law — In a contract of
sale of personal property the price of
which is payable in installments, the
vendor may exercise any of the
following remedies:
xxx
(3) Foreclose the chattel
mortgage on the thing sold, if one
has been constituted, should the
vendee‟s failure to pay cover two
or more installments. In this case,
he shall have no further action
against the purchaser to recover
any unpaid balance of the price.
Any agreement to the contrary
shall be void. (Article 1484, Civil
Code)
2. Mortgage debt due from estate
— A creditor holding a claim against the
deceased secured by mortgage or other
collateral security may:
1. Abandon the security and
prosecute his claim in the
 manner provided in this rule,
and share in the general
distribution of the assets of
the estate;
2. or he may foreclose his
mortgage or realize upon his
security, by action in court,
making the executor or
administrator a party
defendant, and if there is a
judgment for a deficiency,
after the sale of the
mortgaged premises, or the
property pledged, in the
foreclosure or other
proceeding to realize upon the
security, he may claim his
deficiency judgment in the
manner provided in the
preceding section;
3. or he may rely upon his
mortgage or other security
alone, and foreclosure the
same at any time within the
period of the statute of
limitations, and in that event
he shall not be admitted as a
creditor, and shall receive no
share in the distribution of the
other assets of estate; but
nothing herein contained shall
prohibit the executor or
administrator from redeeming
the property mortgaged or
pledged, by paying the debt
for which it is held as security,
under the direction of the
court, if the court shall
adjudge it to be for the best
interest of the estate that such
redemption shall be made.
(Section 7, Rule 86)

Page 76 of 113
8. Partition
8.1 Complaint in action for
partition of real estate
What to allege in complaint for partition
A person having the right to compel the
partition of real estate may do so as
setting forth in his complaint:
1. the nature and extent of his
title and an adequate
description of the real estate
of which partition is
demanded and
2. joining as defendants all other
persons interested in the
property. (Section 1, Rule 69)
Parties in complaint for
partition
Party to file partititon (Plaintiff)
A person having the right to compel the
partition of real estate. (Section 1, Rule
69)
Defendants in action for partition
All other persons interested in the
property. (Section 1, Rule 69)
8.2 Partition and its two phases
In Dela Cruz vs. Dela Cruz G.R. No.
192383, December 4, 2013, in
explaining the action for partition and its
two phases the Supreme Court said:
Page 77 of 113
In partition, the court must first
determine the existence of co-
ownership. The action will not lie
if the plaintiff has no proprietary
interest in the subject property.
Indeed, the rules (Section 1, Rule
69 of the Rules of Civil
Procedure) require him to set
forth in his complaint the nature
and extent of his title to the
property. It would be premature
to order partition until the
question of ownership is first
definitely resolved. (Catapusan v.
Court of Appeals, 332 Phil. 586,
590 (1996); Ocampo v. Ocampo,
471 Phil. 519, 533-534 [2004])
In this jurisdiction, an action for
partition is comprised of two
phases: first, the trial court, after
determining that a co-ownership
in fact exists and that partition is
proper, issues an order for
partition; and, second, the trial
court promulgates a decision
confirming the sketch and
subdivision of the properties
submitted by the parties (if the
parties reach an agreement) or
by the appointed commissioners
(if the parties fail to agree), as the
case may be. (Sepulveda, Sr. v.
Pelaez, G.R. No. 152195, 31
January 2005, 450 SCRA 302,
312, citing Vda. de Daffon v.
Court of Appeals, 436 Phil. 233,
241 (2002); Maglucot-aw v.
Maglucot, 385 Phil. 720, 730-731
(2000])
The delineations of these two phases
have already been thoroughly discussed
by this Court in several cases where it
explained:
The first phase of a partition been accorded opportunity to be
and/or accounting suit is taken up heard thereon, and an award for
with the determination of whether the recovery by the party or
or not a co-ownership in fact parties thereto entitled of their
exists, (i.e., not otherwise legally just share in the rents and profits
proscribed) and may be made by of the real estate in question.
voluntary agreement of all the Such an order is, to be sure, final
parties interested in the property. and appealable. (Maglucot-aw v.
This phase may end with a Maglucot, 385 Phil. 720, 730- 731
declaration that plaintiff is not [2000])
entitled to have a partition either
because a co-ownership does not
exist, or partition is legally
prohibited. It may end, upon the 8.3 Substantive law on partition
other hand, with an adjudgment
that a co-ownership does in truth The Civil Code provides the following
exist, partition is proper in the provisions on the right to demand
premises and an accounting of partition:
rents and profits received by the
defendant from the real estate in
1. No co-owner shall be obliged to
question is in order. In the latter
remain in the co-ownership. Each
case, the parties may, if they are
co-owner may demand at any
able to agree, make partition
time the partition of the thing
among themselves by proper
owned in common, insofar as his
instruments of conveyance, and
share is concerned.
the court shall confirm the
a. Nevertheless, an agreement
partition so agreed upon. In either
to keep the thing undivided for
case — i.e., either the action is
a certain period of time, not
dismissed or partition and/or
exceeding ten years, shall be
accounting is decreed — the
valid. This term may be
order is a final one, and may be
extended by a new
appealed by any party aggrieved
agreement.
thereby.
b. A donor or testator may
The second phase commences
prohibit partition for a period
when it appears that “the parties
which shall not exceed twenty
are unable to agree upon the
years. Neither shall there be
partition” directed by the court. In
any partition when it is
that event, partition shall be done
prohibited by law.
for the parties by the court with
the assistance of not more than
three (3) commissioners. This c. No prescription shall run in
second stage may well also deal favor of a co-owner or co-heir
with the rendition of the against his co-owners or co-
accounting itself and its approval heirs so long as he expressly
by the court after the parties have or impliedly recognizes the

Page 78 of 113
 co-ownership. (Article 494,
Civil Code)
2. Notwithstanding the provisions of
the receding article, the co-
owners cannot demand a (Article 1083, Civil Code)
physical division of the thing
owned in common, when to do so
would render it unserviceable for
the use for which it is intended.
But the co-ownership may be
terminated in accordance with
article 498. (Article 495, Civil
Code)
3. Partition may be made by
agreement between the parties or
by judicial proceedings. Partition
shall be governed by the Rules of
Court insofar as they are
consistent with this Code. (Article
496, Civil Code)
4. Whenever the thing is essentially
indivisible and the co-owners
cannot agree that it be allotted to
one of them who shall indemnify
the others, it shall be sold and its
proceeds distributed. (Article 498,
Civil Code)
5. Every co-heir has a right to
demand the division of the estate
unless the testator should have
expressly forbidden its partition,
in which case the period of
indivision shall not exceed twenty
years as provided in article 494.
This power of the testator to
prohibit division applies to the
legitime.
a. Even though forbidden by the
testator, the co-ownership
terminates when any of the
Page 79 of 113
causes for which partnership
is dissolved takes place, or
when the court finds for
compelling reasons that divi-
sion should be ordered, upon
petition of one of the co-heirs.
6. Voluntary heirs upon whom
some condition has been
imposed cannot demand a
partition until the condition has
been ful-filled; but the other co-
heirs may demand it by giving
sufficient security for the rights
which the former may have in
case the condition should be
complied with, and until it is
known that the condition has not
been fulfilled or can never be
complied with, the partition shall
be understood to be provisional.
(Article 1084, Civil Code)
8.4 JURISDICTION
Jurisdiction on the complaint for partition
lies with the Regional Trial Court (RTC)
and the Municipal Trial Court (MTC) and
Metropolitan Trial Court (MeTC)
depending on the assessed value of the
property, personal and real, involved.
As conferred by law, the jurisdiction are
as follows:
1. Municipal Trial Court (MTC),
Metropolitan Trial Court
(MeTC) — where the value of
the claim or the personal
prop-erty does not exceed
P300,000.00 outside of Metro
Manila (Municipal Trial Court
 [MTC])or P400,000.00 in
Metro Manila (Metropolitan Where the plaintiff or any of the
Trial Court [MeTC]) or where principal plaintiff resides or where
the value of the real property the defendant or any of the
does not exceed P20,000.00 principal defendants resides at
outside Metro Manila the option of the plaintiff. (Section
(Municipal Trial Court [MTC]) 2, Rule 4)
or P50,000.00 in Metro Manila
(Metropolitan Trial Court
[MeTC]).

2. Regional Trial Court (RTC) —

If the value exceeds the
above amounts or if the
subject matter incapable of
pecuniary estimation is
exclusively within the
jurisdiction of the Regional
Trial Court. (Judiciary Act of
1980; BP Blg. 129 [Section 19
(1), (2), Section 33(3)] as
amended by RA 7691)

8.5 VENUE

The venue of special civil action is

governed by the general rules on venue
under Rule 4 of the 1997 Rules on Civil
Procedure unless otherwise provided in
the particular rule governing special civil
action.
Thus, the following are the rules on
venue:

Where the subject matter is a real

property:
In the court which has jurisdiction
over the area wherein the real
property involved, or a portion
thereof, is situated. (Section 1,
Rule 4)

Where the subject matter is a personal

property:

Page 80 of 113
9. Forcible entry and unlawful
detainer
9.1 Who may institute
proceedings, and when
Who may file the proceedings
a. Person to file forcible entry
A person deprived of the
possession of any land or
building. (Section 1, Rule 70)
How possession was deprived
By force, intimidation, threat,
strategy, or stealth. (Section 1,
Rule 70)
Who may file the proceedings
b. Person to file unlawful detainer
A lessor, vendor, vendee, or
other person or legal
representatives or assigns of
such lessor, vendor, vendee, or
other person. (Section 1, Rule
70)
How possession was unlawfully withheld
Against whom the possession of
any land or building is unlawfully
withheld after the expiration or
termination of the right to hold
possession, by virtue of any
contract, express or implied.
(Section 1, Rule 70)
Page 81 of 113
Prescriptive period to bring the action
At any time within one (1) year after
such unlawful deprivation or withholding
of possession bring an action. (Section
1, Rule 70)
Where to file
In the proper Municipal Trial
Court. (Section 1, Rule 70)
Against whom
Against the person or persons
unlawfully withholding or
depriving of possession, or any
person or persons claiming under
them. (Section 1, Rule 70)
Reliefs
For the restitution of such
possession together with
damages and costs. (Section 1,
Rule 70)
9.2 Three kinds of actions to
judicially recover possession of real
property
According to the Supreme Court in
Bokingko v. Court of Appeals, G.R. No.
161739, May 4, 2006, there are three
kinds of actions to judicially recover
possession of real property and these
are distinguished in this wise:
What really distinguishes an
action for unlawful detainer from
 a possessory action (accion
publiciana) and from
reinvindicatory action (accion
reinvindicatoria) is that the first is
limited to the question of
possession de facto. An unlawful
detainer suit (accion interdictal)
together with forcible entry are
the two forms of an ejectment suit
that may be filed to recover
possession of real property.
Aside from the summary action of
ejectment, accion publiciana or
the plenary action to recover the
right of possession and accion
reinvindicatoria or the action to
recover ownership which includes
recovery of possession, make up
the three kinds of actions to
judicially recover possession.
(Ganila v.Court of Appeals, G.R.
No. 150755, June 28, 2005, 461
SCRA 435, 445)
9.3 Jurisdiction of actions to
judicially recover possession of real
property
In Dela Cruz v. Court of Appeals, G.R.
No. 139442, December 6, 2006, the
Supreme Court held on the jurisdiction
of actions to judicially recover
possession of real property as follows:
Section 33 of Chapter III — on
Metropolitan Trial Courts,
Municipal Trial Courts, and
Municipal Circuit Trial Courts of
B.P. No. 129 (The Judiciary
Reorganization Act of 1980)
provides:
Section 33. Jurisdiction of
Metropolitan Trial Courts,
Page 82 of 113
Municipal Trial Courts
a and Municipal Circuit Trial
Courts in civil cases.—
Metropolitan Trial Courts,
Municipal Trial Courts, and
Municipal Circuit Trial
Courts shall exercise:
xxxx
(2) Exclusive original
jurisdiction over cases of
forcible entry and unlawful
detainer: Provided, That
when, in such cases, the
defendant raises the
question of ownership in
his pleadings and the
question of possession
cannot be resolved without
deciding the issue of
ownership, the issue of
ownership shall be
resolved only to determine
the issue of possession.
Thus exclusive, original jurisdiction over
ejectment proceedings (accion
interdictal) is lodged with the first level
courts. This is clarified in Section 1,
Rule 70 of the 1997 Rules of Civil
Procedure that embraces an action for
forcible entry (detentacion), where one
is deprived of physical possession of
any land or building by means of force,
intimidation, threat, strategy, or stealth.
In actions for forcible entry, three (3)
requisites have to be met for the
municipal trial court to acquire
jurisdiction. First, the plaintiffs must
allege their prior physical possession of
the property. Second, they must also
assert that they were deprived of
possession either by force, intimidation,
threat, strategy, or stealth. Third, the
action must be filed within one (1) year
from the time the owners or legal
possessors learned of their deprivation
of physical possession of the land or
building.
The other kind of ejectment proceeding
is unlawful detainer (desahucio), where
one unlawfully withholds possession of
the subject property after the expiration
or termination of the right to possess.
Here, the issue of rightful possession is
the one decisive; for in such action, the
defendant is the party in actual
possession and the plaintiff‟s cause of
action is the termination of the
defendant‟s right to continue in
possession. (Sumulong v. Court of
Appeals, G.R. No. 108817, May 10,
1994, 232 SCRA 372, 383) The
essential requisites of unlawful detainer
are: (1) the fact of lease by virtue of a
contract express or implied; (2) the
expiration or termination of the
possessor‟s right to hold possession; (3)
withholding by the lessee of the
possession of the land or building after
expiration or termination of the right to
possession; (4) letter of demand upon
lessee to pay the rental or comply with
the terms of the lease and vacate the
premises; and (5) the action must be
filed within one (1) year from date of last
demand received by the defendant.
On the other hand, Section 19, of
Chapter II of B.P. No. 129 on Regional
Trial Courts provides:
Section 19. Jurisdiction in civil
cases.—Regional Trial Courts
shall exercise exclusive original
jurisdiction:
xxxx
Page 83 of 113
(2) In all civil actions which
involve the title to, or possession
of, real property, or any interest
therein, except actions for
forcible entry into and unlawful
detainer of lands or buildings,
original jurisdiction over which is
conferred upon Metropolitan Trial
Courts, Municipal Trial Courts
and Municipal Circuit Trial
Courts.
Two (2) kinds of action to recover
possession of real property which fall
under the jurisdiction of the RTC are:
(1) the plenary action for the recovery of
the real right of possession (accion
publiciana) when the dispossession has
lasted for more than one year or when
the action was filed more than one (1)
year from date of the last demand
received by the lessee or defendant;
and (2) an action for the recovery of
ownership (accion reivindicatoria) which
includes the recovery of possession.
These actions are governed by the
regular rules of procedure and
adjudication takes a longer period than
the summary ejectment suit.
9.4 VENUE OF EJECTMENT
CASES
The rule on venue involving ejectment
cases can be found in Rule 4 of the
Rules on Civil Procedure, providing as
follows:
Venue of real actions.—Actions
affecting title to or possession of
real property, or interest therein,
shall be commenced and tried in
the proper court which has
 jurisdiction over the area wherein
the real property involved, or a
portion thereof, is situated.
Forcible entry and detainer
actions shall be commenced and
tried in the municipal trial court of
the municipality or city wherein
the real property involved, or a
portion thereof, is situated. (Rule
4, Section 1)
When Rule not applicable.—
This Rule shall not apply.
a. In those cases where a specific
rule or law provides otherwise; or
b. Where the parties have validly
agreed in writing before the filing
of the action on the exclusive
venue thereof. (Rule 4, Section 4)
9.5 The distinct and different
causes of action under Rule 70
Section 1
In Sarmienta v. Manalite Homeowners
Association, Inc., G.R. No. 182953,
October 11, 2010, the Supreme Court
ruled on the distinct and different causes
of action under Rule 70, Section 1 as
follows:
Well settled is the rule that what
determines the nature of the
action as well as the court which
has jurisdiction over the case are
the allegations in the complaint.
(Canlas v. Tubil, G.R. No.
184285, September 25, 2009,
Page 84 of 113
601 SCRA 147, 156) In ejectment
cases, the complaint should
embody such statement of facts
as to bring the party clearly within
the class of cases under Section
1, Rule 70 of the 1997 Rules of
Civil Procedure, as amended.
There are two entirely distinct
and different causes of action
under the aforequoted rule, to wit:
(1) a case for forcible entry,
which is an action to recover
possession of a property from the
defendant whose occupation
thereof is illegal from the
beginning as he acquired
possession by force, intimidation,
threat, strategy or stealth; and (2)
a case for unlawful detainer,
which is an action for recovery of
possession from the defendant
whose possession of the property
was inceptively lawful by virtue of
a contract (express or implied)
with the plaintiff, but became
illegal when he continued his
possession despite the
termination of his right
thereunder.[Italics ours supplied]
9.6 Effect of owner‟s demand to
vacate and tenant‟s refusal to do so
In Siapian v. Court of Appeals, G.R. No.
111928, March 1, 2000, the Supreme
Court explained:
For the purpose of bringing an
ejectment suit, two requisites
must concur: (1) there must be
failure to pay rent or comply with
the conditions of the lease, and
(2) there must be demand both to
 pay or to comply and vacate
within the periods specified in
Section 2, Rule 70 [of the 1964
Rules of Court] namely 15 days
in case of lands and 5 days in
case of buildings. The first
requisite refers to the existence
of the cause of action for unlawful
detainer while the second refers
to the jurisdictional requirement
of demand in order that said
cause of action may be pursued.
(Cetus Development Inc. vs. CA,
176 SCRA 72, 80 [1989]) It is
therefore clear that before the
lessor may institute such action,
he must make a demand upon
the lessee to pay or comply with
the conditions of the lease and to
vacate the premises. It is the
owner‟s demand for the tenant to
vacate the premises and the
tenant‟s refusal to do so which
makes unlawful the withholding of
possession. Such refusal violates
the owner‟s right of possession
giving rise to an action for
unlawful detainer. (Dio vs.
Concepcion, 296 SCRA 579, 590
[1998])
9.7 When demand to vacate is
prerequisite in action for unlawful
detainer
In Lanuza v. Muñoz, G.R. No. 147372,
May 27, 2004, the Supreme Court
explained when demand is a
prerequisite in action for unlawful
detainer as follows:
An examination of Section 2,
Rule 70, readily shows that the
rule is applicable only where
there is a lessor-lessee
Page 85 of 113
relationship under a lease
contract, which does not exist in
this case. Further, the rule
applies only in instances where
the grounds relied upon for
ejectment are non-payment of
rentals or violation of the
conditions of the lease, as the
case may be. In those cited
situations, notice to vacate is
crucial. (Arquelada v. Philippine
Veterans Bank, G.R. No. 139137,
31 March 2000, 329 SCRA 536,
547) A demand is a pre- requisite
to an action for unlawful detainer,
when the action is based on
“failure to pay rent due or to
comply with the conditions of his
lease,” but not where the action is
to terminate the lease because of
the expiration of its term. (Co
Tiamco v. Diaz, No. L-7, 22
January 1946, 75 Phil 672, 677)
9.8 Demand to vacate not
jurisdictional when ground is
expiration of term of lease
In Tubiano v. Razo, G.R. No. 132598,
July 13, 2000, it was held that demand
to vacate is not a jurisdictional
requirement when the ground for
ejectment is expiration of term of the
lease contract. Thus, the High Court
said:
“xxx The averment that the lease
was on a month-to-month basis is
equivalent to an allegation that
the lease expired at the end of
every month. It is therefore
immaterial that rents had not
been paid since July, 1955, since
what made petitioner liable for
ejectment was the expiration of
the lease. This being the case,
demand to vacate was
unnecessary. As this Court
explained in Co Tiamco v. Diaz,
78 Phil. 672 (1946), Rule 70,
section 2 requires previous
demand only when the action is
„for failure to pay rent due or to
comply with the conditions for his
lease.‟ Where the action is to
terminate the lease because of
the expiration of its term, no such
demand is necessary. In the
latter case upon the expiration of
the term of the lease, the landlord
may go into the property and
occupy it, and if the lessee
refuses to vacate the premises,
an action for unlawful detainer
may immediately be brought
against him even before the
expiration of the fifteen or five
days provided in Rule 70, section
2.
Accordingly, upon the expiration
of the lease in this case,
petitioner became a deforciant
unlawfully withholding possession
of the property. There was no
need for a demand to be served
on him, except to negate any
inference that respondent, as
lessor, had agreed to an
extension of the term of the lease
under article 1687 of the Civil
Code.” (Racaza vs. Susana
Realty, Inc., 18 SCRA 1176,
1177)
Page 86 of 113
9.9 The one-year period to bring
an action for forcible entry when
counted
The one-year period within which to
bring an action for forcible entry is
generally counted from the date of
actual entry on the land, except that
when the entry is through stealth, the
one-year period is counted from the time
the plaintiff learned thereof. (Nuñez v.
Slteas Phoenix Solutions, G.R. No.
180542, April 12,2010 citing Ong v.
Parel, 407 Phil. 1045, 1053 [2001])
9.10 The one-year period to bring
an action for unlawful detainer
The Supreme Court in Republic of the
Philippines v. Sunvar Realty
Development Corporation, G.R. No.
194880, June 20, 2012, citing Delos
Reyes v. Spouses Odenes, G.R. No.
178096, 23 March 2011, 646 SCRA
328, 334, citing Valdez, Jr. v. CA, 523
Phil. 39, 46 (2006) defined the nature
and scope of an unlawful detainer suit,
as follows:
Unlawful detainer is an action to
recover possession of real
property from one who illegally
withholds possession after the
expiration or termination of his
right to hold possession under
any contract, express or implied.
The possession by the defendant
in unlawful detainer is originally
legal but became illegal due to
the expiration or termination of
the right to possess. The
proceeding is summary in nature,
jurisdiction over which lies with
the proper MTC or metropolitan
 trial court. The action must be
brought up within one year from
the date of last demand, and the
issue in the case must be the
right to physical possession.
(Emphasis supplied.)
9.11 Effect of subsequent demands
in reminders of the original demand
The Supreme Court in Republic of the
Philippines v. Sunvar Realty
Development Corporation, G.R. No.
194880, June 20, 2012, explained the
effect of subsequent demand as mere
reminders of the original demand as
follows:
In the past, the Court ruled that
subsequent demands that are
merely in the nature of reminders
of the original demand do not
operate to renew the one-year
period within which to commence
an ejectment suit, considering
that the period will still be
reckoned from the date of the
original demand. (Racaza v.
Gozum, 523 Phil. 694 (2006),
citing Desbarats v. Laureano, 124
Phil. 704 [1966]) If the
subsequent demands were
merely in the nature of reminders
of the original demand, the one-
year period to commence an
ejectment suit would be counted
from the first demand. (Spouses
Cruz v. Spouses Torres, 374 Phil.
529 (1999), citing Pacis v. Court
of Appeals, G.R. No. 102676, 03
February 1992, min. res., cited in
Summary of 1992 Supreme Court
Rulings, Part III, by Atty. Daniel
T. Martinez, p. 1847; Desbarats
v. de Laureano, supra)
Page 87 of 113
9.12 Effect of several demands
In case several demands to vacate are
made, the period is reckoned from the
date of the last demand. (Republic of
the Philippines v. Sunvar Realty
Development Corporation, G.R. No.
194880, June 20, 2012 citing Labastida
v. Court of Appeals, 351 Phil. 162
(1998), citing Sy Oh v. Garcia, 28 SCRA
735 (1969) and Calubayan v. Pascual,
128 Phil. 160 [1967])
9.13 Effect when dispossession
lasted for more than one year
“On the other hand, accion
publiciana is the plenary action to
recover the right of possession
which should be brought in the
proper regional trial court when
dispossession has lasted for
more than one year. It is an
ordinary civil proceeding to
determine the better right of
possession of realty
independently of title. In other
words, if at the time of the filing of
the complaint, more than one
year had elapsed since
defendant had turned plaintiff out
of possession or defendant‟s
possession had become illegal,
the action will be, not one of
forcible entry or illegal detainer,
but an accion publiciana.”
(Republic of the Philippines v.
Sunvar Realty Development
Corporation, G.R. No. 194880,
June 20, 2012 citing Canlas v.
Tubil, G.R. No. 184285, 25
September 2009, 601 SCRA 147,
157)
Page 88 of 113
10. Contempt
10.1 Direct contempt punished
summarily
Acts constituting direct contempt
Direct contempt are as follows:
1. Misbehavior in the presence
of or so near a court as to
obstruct or interrupt the
proceedings before the same,
including disrespect toward
the court, offensive
personalities toward others;
2. Or refusal to be sworn or to
answer as a witness, or to
subscribe an affidavit or
deposition when lawfully
required to do so. (Section 1,
Rule 71)
Effect of direct contempt
A person guilty of direct contempt
may be summarily adjudged in
contempt by such court. (Section
1, Rule 71)
Punishment for direct contempt
If it be a Regional Trial Court or a court
of equivalent or higher rank
By a fine not exceeding two thousand
pesos or imprisonment not exceeding
ten (10) days, or both;
If it be a lower court
Page 89 of 113
By a fine not exceeding two hundred
pesos or imprisonment not exceeding
one (1) day, or both. (Section 1, Rule
71)
10.2 Definition, nature and purpose
of contempt of court
In Lorenzo Shipping Corporation v.
Distribution Management Association of
the Philippines, G.R. No. 155849,
August 31, 2011 the Supreme Court
made an exhaustive discussions about
contempt as follows:
Contempt of court has been
defined as a willful disregard or
disobedience of a public
authority. In its broad sense,
contempt is a disregard of, or
disobedience to, the rules or
orders of a legislative or judicial
body or an interruption of its
proceedings by disorderly
behavior or insolent language in
its presence or so near thereto as
to disturb its proceedings or to
impair the respect due to such a
body. In its restricted and more
usual sense, contempt
comprehends a despising of the
authority, justice, or dignity of a
court. (17 CJS, Contempt, § 1)
The phrase contempt of court is
generic, embracing within its
legal signification a variety of
different acts. (17 CJS,
Contempt, § 2)
xxx
Contempt of court is of two kinds,
namely: direct contempt, which is
committed in the presence of or
so near the judge as to obstruct
him in the administration of
justice; and constructive or
indirect contempt, which consists
of willful disobedience of the
lawful process or order of the
court. (Narcida v. Bowen, 22 Phil.
365)
The punishment for the first is
generally summary and
immediate, and no process or
evidence is necessary because
the act is committed in facie
curiae. [I Bouvier’s Law
Dictionary, (Rawle’s Third
Revision) Eighth Edition, p. 651,
citing Wasserman v. United
States, 161 Fed. 722, 88 C.C.A.
582; Garrigan v. United States,
163 Fed. 16, 89 C.C.A. 494, 23
L.R.A. (N.S.) 1295. In facie curiae
literally means in the face of the
court, that is, in the presence of
the court. There ought to be no
question that courts have the
power by virtue of their very
creation to impose silence,
respect, and decorum in their
presence, submission to their
lawful mandates, and to preserve
themselves and their officers
from the approach and insults of
pollution (Anderson v. Dunn, 6
Wheat 204)]
Also, contemptuous acts
committed out of the presence of
the court, if admitted by the
contemnor in open court, may be
punished summarily as a direct
contempt, (People v. Gholson,
106 N.E. 2d 333; People v.
Hagopian, 37 N.E. 2d 782, 408
Ill. 618; People v. Pomeroy, 90
N.E. 2d 102, 405 Ill. 175)
although it is advisable to
proceed by requiring the person
Page 90 of 113
charged to appear and show
cause why he should not be
punished when the judge is
without personal knowledge of
the misbehavior and is informed
of it only by a confession of the
contemnor or by testimony under
oath of other persons. (Re Savin,
131 US 267)
In contrast, the second usually
requires proceedings less
summary than the first. The
proceedings for the punishment
of the contumacious act
committed outside the personal
knowledge of the judge generally
need the observance of all the
elements of due process of law,
that is, notice, written charges,
and an opportunity to deny and to
defend such charges before guilt
is adjudged and sentence
imposed. (Provenzale v.
Provenzale, 90 N.E. 2d 115, 339
Ill. App. 345; People ex rel.
Andrews v. Hassakis, 129 N.E.
2d 9, 6 Ill. 2d 463; Van
Sweringen v. Van Sweringen,
126 A. 2d 334, 22 N.J. 440, 64
A.L.R. 2d 593; Ex parte Niklaus,
13 N.W. 2d 655, 144 Neb. 503;
People ex rel. Clarke v.
Truesdell, 79 N.Y.S. 2d 413)
Plainly, therefore, the word
summary with respect to the
punishment for contempt refers
not to the timing of the action with
reference to the offense but to
the procedure that dispenses with
the formality, delay, and
digression that result from the
issuance of process, service of
complaint and answer, holding
hearings, taking evidence,
 listening to arguments, awaiting
briefs, submission of findings,
and all that goes with a
conventional court trial. (Sacher
v. United States, N.Y., 72 S. Ct.
451, 343 US 1)
A distinction between in-court
contempts, which disrupt court
proceedings and for which a hearing
and formal presentation of evidence are
dispensed with, and out-of-court
contempts, which require normal
adversary procedures, is drawn for the
purpose of prescribing what procedures
must attend the exercise of a court‟s
authority to deal with contempt. The
distinction does not limit the ability of
courts to initiate contempt prosecutions
to the summary punishment of in-court
contempts that interfere with the judicial
process. (Young v. United States, 481
US 787)
xxx
Proceedings for contempt are sui
generis, in nature criminal, but may be
resorted to in civil as well as criminal
actions, and independently of any
action. (Bessette v. M.B. Conkey Co.,
194 US 324) They are of two classes,
the criminal or punitive, and the civil or
remedial. A criminal contempt consists
in conduct that is directed against the
authority and dignity of a court or of a
judge acting judicially, as in unlawfully
assailing or discrediting the authority
and dignity of the court or judge, or in
doing a duly forbidden act. A civil
contempt consists in the failure to do
something ordered to be done by a
court or judge in a civil case for the
benefit of the opposing party therein.
(Perkins v. Director of Prisons, 58 Phil.
271) It is at times difficult to determine
Page 91 of 113
whether the proceedings are civil or
criminal. In general, the character of the
contempt of whether it is criminal or civil
is determined by the nature of the
contempt involved, regardless of the
cause in which the contempt arose, and
by the relief sought or dominant
purpose. [Lamb v. Cramer, 285 US 217
(the purpose of the punishment rather
than the character of the act punished
determines whether the proceeding to
punish is for a civil or a criminal
contempt); McCrone v. United States,
307 US 61 (a contempt is considered
civil when the punishment is wholly
remedial, serves only the purpose of the
complainant, and is not intended as a
deterrent to offenses against the public);
Hicks v. Feiock, 485 US 624 (in a
proceeding for civil contempt, the
punishment is remedial and for the
benefit of the complainant, while in a
proceeding for criminal contempt, the
sentence is punitive and for the
vindication of the court’s authority;
conclusions about the purposes for
which relief is imposed are properly
drawn from an examination of the
character of the relief itself; if the relief
provided is a fine, it is remedial when it
paid to the complainant or where it can
be avoided by performing an affirmative
act required by the court’s order, but is
punitive when it is paid to the court)] The
proceedings are to be regarded as
criminal when the purpose is primarily
punishment, and civil when the purpose
is primarily compensatory or remedial.
(17 CJS, Contempt, §62 [4]) Where the
dominant purpose is to enforce
compliance with an order of a court for
the benefit of a party in whose favor the
order runs, the contempt is civil; where
the dominant purpose is to vindicate the
dignity and authority of the court, and to
protect the interests of the general
public, the contempt is criminal.
(Philadelphia Marine Trade Association
v. International Longshoremen’s
Association, Local Union No. 1291, 140
A.2d 814, 392 Pa. 500) Indeed, the
criminal proceedings vindicate the
dignity of the courts, but the civil
proceedings protect, preserve, and
enforce the rights of private parties and
compel obedience to orders, judgments
and decrees made to enforce such
rights. (I Bouvier’s Law Dictionary,
(Rawle’s Third Revision) Eighth Edition,
p. 653, citing Wasserman v. United
States, 161 Fed. 722, 88 C.C.A. 582;
Garrigan v. United States, 163 Fed. 16,
89
C.C.A. 494, 23 L.R.A. (N.S.) 1295)
10.3 Other provisions on contempt
The other provisions on contempt are as
follows:
1. Rule 7, Section 5 of the 1997
Rules of Civil Procedure
Section 5. Certification against forum
shopping.—The plaintiff or principal
party shall certify under oath in the
complaint or other initiatory pleading
asserting a claim for relief, or in a sworn
certification annexed thereto and
simultaneously filed therewith: (a) that
he has not theretofore commenced any
action or filed any claim involving the
same issues in any court, tribunal or
quasi-judicial agency and, to the best of
his knowledge, no such other action or
claim is pending therein; (b) if there is
such other pending action or claim, a
Page 92 of 113
complete statement of the present
status thereof; and (c) if he should
thereafter learn that the same or similar
action or claim has been filed or is
pending, he shall report that fact within
five (5) days therefrom to the court
wherein his aforesaid complaint or
initiatory pleading has been filed.
Failure to comply with the foregoing
requirements shall not be curable by
mere amendment of the complaint or
other initiatory pleading but shall be
cause for the dismissal of the case
without prejudice, unless otherwise
provided, upon motion and after
hearing. The submission of a false
certification or non- compliance with any
of the undertakings therein shall
constitute indirect contempt of court,
without prejudice to the corresponding
administrative and criminal actions. If
the acts of the party or his counsel
clearly constitute willful and deliberate
forum shopping, the same shall be
ground for summary dismissal with
prejudice and shall constitute direct
contempt, as well as a cause for
administrative sanctions.
2. Rule 21, Section 9 of the 1997
Rules of Civil Procedure
Section 9. Contempt.—Failure by any
person without adequate cause to obey
a subpoena served upon him shall be
deemed a contempt of the court from
which the subpoena is issued. If the
subpoena was not issued by a court, the
disobedience thereto shall be punished
in accordance with the applicable law or
Rule.
3. Rule 29, Section 2 of the 1997
Rules of Civil Procedure
Section 2. Contempt of court.—If a
party or other witness refuses to be
sworn or refuses to answer any
question after being directed to do so by
the court of the place in which the
deposition is being taken, the refusal
may be considered a contempt of that
court.
4. Rule 39, Section 43 of the 1997
Rules of Civil Procedure
Section 43. Proceedings when
indebtedness denied or another person
claims the property.—If it appears that a
person or corporation, alleged to have
property of the judgment obligor or to be
indebted to him, claims an interest in the
property adverse to him or denied the
debt, the court may authorize, by an
order made to that effect, the judgment
obligee to institute an action against
such person or corporation for the
recovery of such interest or debt, forbid
a transfer or other disposition of such
interest or debt within one hundred
twenty (120) days from notice of the
order, and may punish disobedience of
such order as for contempt. Such order
may be modified or vacated at any time
by the court which issued it, or by the
court in which the action is brought,
upon such terms as may be just. (45a)
5. Rule 59, Section 7 of the 1997
Rules of Civil Procedure
Section 7. Liability for refusal or neglect
to deliver property to receiver.—A
person who refuses or neglects, upon
reasonable demand, to deliver to the
Page 93 of 113
receiver all the property, money, books,
deeds, notes, bills, documents and
papers within his power or control,
subject of or involved in the action or
proceeding, or in case of disagreement,
as determined and ordered by the court,
may be punished for contempt and shall
be liable to the receiver for the money or
the value of the property and other
things so refused or neglected to be
surrendered, together with all damages
that may have been sustained by the
party or parties entitled thereto as a
consequence of such refusal or neglect.
(n)
6. Rule 65 Section 9 of the 1997
Rules of Civil Procedure
Section 9. Service and enforcement of
order or judgment.—A certified copy of
the judgment rendered in accordance
with the last preceding section shall be
served upon the court, quasi-judicial
agency, tribunal, corporation, board,
officer or person concerned in such
manner as the court may direct, and
disobedience thereto shall be punished
as contempt. An execution may issue
for any damages or costs awarded in
accordance with section 1 of Rule 39.
(9a)
7. Rule 66 Section 10 of the 1997
Rules of Civil Procedure
Section 10. Rights of persons adjudged
entitled to public office; delivery of books
and papers; damages.—If judgment be
rendered in favor of the person averred
in the complaint to be entitled to the
public office he may, after taking the
oath of office and executing any official
bond required by law, take upon himself
the execution of the office, and may
immediately thereafter demand of the
respondent all the books and papers in
the respondent‟s custody or control
appertaining to the office to which the
judgment relates. If the respondent
refuses or neglects to deliver any book
or paper pursuant to such demand, he
may be punished for contempt as
having disobeyed a lawful order of the
court. The person adjudged entitled to
the office may also bring action against
the respondent to recover the damages
sustained by such person by reason of
the usurpation. (15a)
8. Rule 138, Sections 21 and 25 of
the 1 Rules of Court- Legal Ethics
Section 21. Authority of attorney to
appear.—An attorney is presumed to be
properly authorized to represent any
cause in which he appears, and no
written power of attorney is required to
authorize him to appear in court for his
client, but the presiding judge may, on
motion of either party and on reasonable
grounds therefor being shown, require
any attorney who assumes the right to
appear in a case to produce or prove
the authority under which he appears,
and to disclose, whenever pertinent to
any issue, the name of the person who
employed him, and may thereupon
make such order as justice requires. An
attorneys wilfully appear in court for a
person without being employed, unless
by leave of the court, may be punished
for contempt as an officer of the court
who has misbehaved in his official
transactions.
Section 25. Unlawful retention of client’s
funds; contempt.—When an attorney
unjustly retains in his hands money of
Page 94 of 113
his client after it has been demanded,
he may be punished for contempt as an
officer of the
Court who has misbehaved in his official
transactions; but proceedings under this
section shall not be a bar to a criminal
prosecution.
9. Section 16, A.M. 07-9-12 Rule on
the Writ of Amparo
Section 16. Contempt.—The court,
justice or judge may order the
respondent who refuses to make a
return, or who makes a false return, or
any person who otherwise disobeys or
resists a lawful process or order of the
court to be punished for contempt. The
contemnor may be imprisoned or
imposed a fine.
10. Section 8, A. M. No. 08-1-16-SC
Rule on Habeas Data
Section 8. Penalty for Refusing to Issue
or Serve the Writ.—A clerk of court who
refuses to issue the writ after its
allowance, or a deputized person who
refuses to serve the same, shall be
punished by the court, justice or judge
for contempt without prejudice to other
disciplinary actions.
11. Rule 7, Sections 7 and 13, A.M.
No. 09-6-8-SC, Special Civil Action on
Wirt of Kalikasan
Rule 7, Section 7. Penalty for refusing to
issue or serve the writ.—A clerk of court
who unduly delays or refuses to issue
the writ after its allowance or a court
officer or deputized person who unduly
delays or refuses to serve the same
shall be punished by the court for
contempt without prejudice to other civil,
criminal or administrative actions.
Rule 7, Section 13. Contempt.—The
court may after hearing punish the
respondent who refuses or unduly
delays the filing of a return, or who
makes a false return, or any person who
disobeys or resists a lawful process or
order of the court for indirect contempt
under Rule 71 of the Rules of Court.
12. Sections 7 and 16 A.M. No. 07-9-
12-SC, Rule on Writ of Amparo
Section 7. Penalty for Refusing to Issue
or Serve the Writ.—A clerk of court who
refuses to issue the writ after its
allowance, or a deputized person who
refuses to serve the same, shall be
punished by the court, justice or judge
for contempt without prejudice to other
disciplinary actions.
Section 16. Contempt.—The court,
justice or judge may order the
respondent who refuses to make a
return, or who makes a false return, or
any person who otherwise disobeys or
resists a lawful process or order of the
court to be punished for contempt. The
contemnor may be imprisoned or
imposed a fine.
13. Section 44, A.M. No. 04-10-11-
SC Rule on Violence Against Women
and their Children
Page 95 of 113
Section 44. Issuance of protection
order when warranted; contempt of
court for violation.—During trial or upon
judgment, the trial court may motu
proprio issue a protection order when
warranted. Violation of any protection
order issued under this Section shall
constitute contempt of court punishable
under Rule 71 of the Rules of Court,
without prejudice to any other criminal or
civil action that the offended party may
file for any of the acts committed.
14. Sections 7 and 49, A.M. No. 05-
11-04-SC 2005-11-15 Rule of
Procedure in cases of Civil Forfeiture,
Asset Preservation, and Freezing of
monetary instrument, property, or
proceeds representing, involving, or
relating to an unlawful activity or money
laundering offense under Republic Act
No. 9160, as amended
Section 7. Confidentiality; prohibited
disclosure.—The logbook and the
entries therein shall be kept strictly
confidential and maintained under the
responsibility of the executive judge. No
person, including court personnel, shall
disclose, divulge or communicate to
anyone directly or indirectly, in any
manner or by any means, the fact of the
filing of the petition for an asset
preservation order, its contents and its
entry in the logbook except to those
authorized by the court. Violation shall
constitute contempt of court.
Section 49. Confidentiality; prohibited
disclosure.—The logbook and the
entries therein shall be kept strictly
confidential and maintained under the
responsibility of the Presiding Justice or
the Executive Justices, as the case
may be. No person, including Court
personnel, shall disclose, divulge or
communicate to anyone directly or
indirectly, in any manner or by any
means, the fact of the filing of the
petition for freeze order, its contents and
its entry in the logbook except to those
authorized by the Court. Violation shall
constitute contempt of court.
15. Rule 19.35, A.M. No. 07-11-08-
SC Special Rules of Court on
Alternative Dispute Resolution
Rule 19.35. Service and enforcement of
order or judgment.—A certified copy of
the judgment rendered in accordance
with the last preceding section shall be
served upon the Regional Trial Court
concerned in such manner as the Court
of Appeals may direct, and
disobedience thereto shall be punished
as contempt.
10.4 Remedy therefrom
Remedy
Remedy of the person adjudged in
direct contempt by any court:
1. May not appeal therefrom;
2. But may avail himself of the
remedies of certiorari or
prohibition. (Section 2, Rule
71)
Effect of filing of the remedies of
certiorari or prohibition
The execution of the judgment shall be
suspended pending resolution of such
petition, provided such person files a
Page 96 of 113
bond fixed by the court which rendered
the judgment and conditioned that he
will abide by and perform the judgment
should the petition be decided against
him. (Section 2, Rule 71)
10.5 Indirect contempt to be
punished after charge and hearing
Requirements for indirect contempt:
1. After a charge in writing has
been filed, and
2. An opportunity given to the
respondent to comment
thereon within such period as
may be fixed by the court and
to be heard by himself or
counsel. (Section 3, Rule 71)
Acts constituting indirect contempt
The following are indirect contempt
(a) Misbehavior of an officer of a
court in the performance of his
official duties or in his official
transactions;
(b) Disobedience of or resistance to
a lawful writ, process, order, or
judgment of a court, including the
act of a person who, after being
dispossessed or ejected from any
real property by the judgment or
process of any court of
competent jurisdiction, enters or
attempts or induces another to
enter into or upon such real
property, for the purpose of
executing acts of ownership or
possession, or in any manner
disturbs the possession given to
 the person adjudged to be
entitled thereto;
(c) Any abuse of or any unlawful
interference with the processes
or proceedings of a court not
constituting direct contempt
under section 1 of this Rule;
(d) Any improper conduct tending,
directly or indirectly, to impede,
obstruct, or degrade the
administration of justice;
(e) Assuming to be an attorney or an
officer of a court, and acting as
such without authority;
(f) Failure to obey a subpoena duly
served;
(g) The rescue, or attempted rescue,
of a person or property in the
custody of an officer by virtue of
an order or process of a court
held by him. (Section 3, Rule 71)
But nothing in this section shall be so
construed as to prevent the court
from issuing process to bring the
respondent into court, or from
holding him in custody pending such
proceedings. (Section 3, Rule 71)
10.6 How proceedings commenced
Proceedings for indirect contempt may
be initiated:
1. motu propio by the court
against which the contempt
was committed by an order or
any other formal charge
requiring the respondent to
show cause why he should
not be punished for contempt.
2. In all other cases, charges for
indirect contempt shall be
commenced by a verified
petition with supporting
Page 97 of 113
particulars and certified true
copies of documents or
papers involved therein, and
upon full compliance with the
requirements for filing
initiatory pleadings for civil
actions in the court
concerned.
If the contempt charges arose out of or
are related to a principal action pending
in the court, the petition for contempt
shall allege that fact but said petition
shall be docketed, heard and decided
separately, unless the court in its
discretion orders the consolidation of the
contempt charge and the principal
action for joint hearing and decision.
(Section 4, Rule 71)
10.7 Where charge to be filed
When committed against RTC
Where the charge for indirect contempt
has been committed against a Regional
Trial Court or a court of equivalent or
higher rank, or against an officer
appointed by it, the charge may be filed
with such court. (Section 5, Rule 71)
When committed against lower court
Where such contempt has been
committed against a lower court, the
charge may be filed with the Regional
Trial Court of the place in which the
lower court is sitting; but the
proceedings may also be instituted in
such lower court subject to appeal to the
Regional Trial Court of such place in the
same manner as provided in section 11
of this Rule. (Section 5, Rule 71)
10.8 Review of judgment or final
order; bond for stay
Remedy to assail judgment/final order of
indirect contempt
The judgment or final order of a court in
a case of indirect contempt may be
appealed to the proper court as in
criminal cases. (Section 11, Rule 71)
10.9 Character of contempt; appeal
would not lie on acquittal in contempt
The following are the prevailing
jurisprudence:
1. In Yasay, Jr. v. Recto, G.R.
No. 129521, September 7,
1999, 313 SCRA 739, 744,
the Court declared: A
distinction is made between a
civil and [a] criminal contempt.
Civil contempt is the failure to
do something ordered by a
court to be done for the
benefit of a party. A criminal
contempt is any conduct
directed against the authority
or dignity of the court. (See
also People v. Godoy, G.R.
Nos. 115908-09, March 29,
1995, 243 SCRA 64)
2. The Court further explained in
Remman Enterprises, Inc. v.
Court of Appeals, G.R. No.
107671, February 26, 1997,
268 SCRA 688, 697, and
People v. Godoy G.R. Nos.
115908-09, March 29, 1995,
Page 98 of 113
243 SCRA 78 the character of
contempt proceedings, thus
—
The real character of the
proceedings in contempt cases is to
be determined by the relief sought or
by the dominant purpose. The
proceedings are to be regarded as
criminal when the purpose is
primarily punishment and civil when
the purpose is primarily
compensatory or remedial.
Still further, the Court held in Santiago v.
Anunciacion, Jr., G.R. No. 89318, April
3, 1990, 184 SCRA 118, 121 that:
But whether the first or the second,
contempt is still a criminal proceeding in
which acquittal, for instance, is a bar to
a second prosecution. The distinction is
for the purpose only of determining the
character of punishment to be
administered.
3. In the earlier case of The
Insurance Commissioner v.
Globe Assurance Co., Inc.,
No. L-27874, January 30,
1982, 111 SCRA 202, 204,
the Court dismissed the
appeal from the ruling of the
lower court denying a petition
to punish the respondent
therein from contempt for lack
of evidence. The Court said in
that case:
It is not the sole reason for dismissing
this appeal. In the leading case of In re
Mison, Jr. v. Subido, it was stressed by
Justice J.B.L. Reyes as ponente, that
the contempt proceeding far from being
a civil action is “of a criminal nature and
of summary character in which the court
exercises but limited jurisdiction.” It was
then explicitly held: “Hence, as in
criminal proceedings, an appeal would
not lie from the order of dismissal of, or
an exoneration from, a charge of
contempt of court.” [footnote omitted]

10.11 Contempt against quasi-

judicial entities

Rule on contempt against quasi-judicial

entities

Unless otherwise provided by law, this

Rule shall apply to contempt committed
against persons, entities, bodies or
agencies exercising quasi-judicial
functions, or shall have suppletory effect
to such rules as they may have adopted
pursuant to authority granted to them by
law to punish for contempt. The
Regional Trial Court of the place
wherein the contempt has been
committed shall have jurisdiction over
such charges as may be filed therefor.
(Section 12, Rule 71)

Page 99 of 113
QUAMTO 2018
SPECIAL CIVIL ACTIONS
CERTIORARI, PROHIBITION AND
MANDAMUS
Q: Distinguish error of jurisdiction from error
of judgment. (2012 Bar)
A: An error of judgment is one which
the court may commit in the exercise
of its jurisdiction. Such an error does
not deprive the court of jurisdiction
and is correctible only by appeal;
whereas an error of jurisdiction is
one which the court acts without or
in excess of its jurisdiction. Such an
error renders an order or judgment
void or voidable and is correctible by
the special civil action of certiorari
(Dela Cruz v. Moir, G.R. No. L-
12256, February 6, 1917;
Cochingyan v. Cloribel, G.R. No.
27070-71, April 22, 1977; Fortich v.
Corona, G.R. No. 131457, April 24,
1998; Artistica Ceramica, Inc.v.
Ciudad Del Carmen Homeowner's
Association, Inc., G.R. Nos. 167583-
84,June 16, 2010).
Q: Compare the certiorari jurisdiction of the
Supreme Court under the Constitution with
that under Rule 65 of the Rules of Civil
Procedure. (2008 Bar)
A: Under the Constitution, the
certiorari jurisdiction of the Supreme
Court provides for its expanded
jurisdiction power of judicial power
Page 100 of 113
over [governs] all branches or
instrumentalities of the government
where there is a grave abuse of
discretion amounting to lack or
excess of jurisdiction, as [agencies
and instrumentalities] provided in
Section 1, second par., Article VIII of
the 1987 Constitution. The petition is
filed under Rule 45 of the Rules of
Court, and the writ is directed not
only to tribunal, board or officer
exercising judicial or quasi-judicial
functions and the period fixed for
availing of the remedy is within 30
days from receipt of the copy of the
decision, order ruling in question
(Sec. 7, Art. IX, 1987 Constitution).
But under Rule 65 of the Rules of
Court, the certiorari jurisdiction of the
Supreme Court is limited to acts
done without or in excess of
jurisdiction or grave abuse of
discretion amounting to lack or
excess of jurisdiction, by a tribunal,
board or officer exercising judicial or
quasi-judicial functions only. And the
period fixed for availing of the
remedy is not later than 60 days
from notice of judgment; order or
resolution in question (Secs. 1 and
4, Rule 65).
Q: AB mortgaged his property to CD. AB
failed to pay his obligation and CD filed an
action for foreclosure of mortgage. After
trial, the court issued an Order granting
CD’s prayer for foreclosure of mortgage and
ordering AB to pay CD the full amount of the
mortgage debt including interest and other
charges not later than 120 days from date of
receipt of the Order. AB received the Order
on August 10, 1999. No other proceeding
took place thereafter. On December 20,
1999, AB tendered the full amount adjudged
by the court to CD but the latter refused to
accept it on the ground that the money was
tendered beyond the 120-day period
granted by the court. AB filed a motion in
the same court praying that CD be directed
to receive the amount tendered by him on
the ground that the Order does not comply
with the provisions of Section 2, Rule 68 of
the Rules of Court which give AB 120 day
from entry of judgment, and not from date of
receipt of the Order. The court denied his
motion on the ground that Order had
already become final and can no longer be
amended to conform with Section 2, Rule
68. Aggrieved, AB files a petition for
certiorari against the Court and CD. Will the
petition for certiorari prosper? Explain.
(2000 Bar)
A: Yes. The court erred in issuing an
Order granting CD’s prayer for
foreclosure of mortgage and
ordering AB to pay CD the full
amount of the mortgage and
ordering AB to pay CD the full
amount of the mortgage debt
including interest and other charges
not later than 120 days from receipt
of the Order. The court should have
rendered a judgment which is
appealable. Since no appeal was
taken, the judgment became final on
August 25, 1999, which is the date
of entry of judgment (Sec. 2, Rule
36). Hence, AB had up to December
24, 1999 within which to pay the
amount due (Sec. 2, Rule 68). The
court gravely abused its discretion
amounting to lack or excess of
jurisdiction in denying AB’s motion
praying that CD be directed to
receive the amount tendered.
Q: The defendant was declared in default in
the RTC for his failure to file an answer to a
complaint for a sum of money. On the basis
Page 101 of 113
of the plaintiff’s ex parte presentation of
evidence, judgment by default was rendered
against the defendant. The default judgment
was served on the defendant on October 1,
2001. On October 10, 2001, he files a
verified motion to lift the order of default and
to set aside the judgment. In his motion, the
defendant alleged that, immediately upon
receipt of the summons, he saw the plaintiff
and confronted him with his receipt
evidencing his payment and the at the
plaintiff assured him that he would instruct
his lawyer to withdraw the complaint. The
trial court denied the defendant’s motion
because it was not accompanied by an
affidavit of merit. The defendant filed a
special civil action for certiorari under Rule
65 challenging the denial order.
a. Is certiorari under Rule 65 the proper
remedy? Why?
A: YES. The petition for certiorari
under Rule 65 filed by the defendant
is the proper remedy because
appeal is not a plain, speedy and
adequate remedy in the ordinary
course of law. In appeal, the
defendant in default can only
question the decision in the light of
the evidence of the plaintiff. The
defendant cannot invoke the receipt
to prove payment of his obligation to
the plaintiff.
b. Did the trial court abuse its discretion or
act without or in excess of its jurisdiction in
denying the defendant’s motion to lift the
order of default judgement? Why? (2002
Bar)
 A: Yes, the trial court gravely abused
its discretion or acted without or in
excess of jurisdiction in denying the
defendant’s motion because it was
not accompanied by a separate
affidavit of merit. In his verified
motion to lift the order of default and
to set aside the judgment, the
defendant alleged that immediately
upon the receipt of the summons, he
saw the plaintiff and confronted him
with his receipt showing payment
and that the plaintiff assured him
that he would instruct his lawyer to
withdraw the complaint. Since the
good defense of the defendant was
already incorporated in the verified
motion, there was no need for a
separate affidavit of merit (Capuz v.
Court of Appeals,G.R. No. 112795,
June 27, 1994; Mago v. Court of
Appeals, G.R. No. 115624, February
25, 1999).
Q: Explain each mode of Certiorari:
a. As a mode of appeal from the Regional
Trial Court or the Court of Appeals to the
Supreme Court.
A: A petition for review on certiorari
under Rule 45 is a mode of appeal
on pure questions law from a
judgment or final order or resolution
of the Regional Court or the Court of
Appeals to the Supreme Court.
b. As special civil action from the Regional
Trial Court or the Court of Appeals to the
Supreme Court.
Page 102 of 113
A: A special civil action for certiorari
under Rule 65, is an original action
from the Regional Trial Court or the
Court of Appeals to the Supreme
Court against any tribunal, board or
officer exercising judicial or quasi-
judicial functions raising the issue of
lack or excess of jurisdiction or
grave abuse of discretion amounting
to lack or excess of jurisdiction,
there being no appeal or any plain,
speedy and adequate remedy in the
ordinary course of law.
c. As a mode of review of the decisions of
the National Labor Relations Commission
and the Constitutional Commissions. (2006
Bar)
A: The mode of review of the
decision of the NLRC is via a special
civil action for certiorari under Rule
65, but pursuant to the hierarchy of
the courts enunciated in the case of
St. Martin’s Funeral Homes v.
NLRC, G.R. No. 130866,
September 16, 1998,the same
should be filed in the Court of
Appeals.
The mode of review of the decisions
of two Constitutional Commissions,
the Commission on Elections and
the Commission on Audit, as
provided under Rule 64 is a special
civil action for certiorari under Rule
65. Decisions of the Civil Service
Commission, however, are
reviewable by petition for review to
be filed with the Court of Appeals
under Rule 43.
Q: Differentiate certiorari as an original
action from certiorari as a mode of appeal.
(1998, 1999 Bar)
A: Certiorari as an original action and
certiorari as a mode of appeal may be
distinguished as follows:
instead of filing a petition for review on
certiorari under Rule 45 thereof for the
nullification of a decision of the Court of
Appeals in the exercise either of its original
or appellate jurisdiction? Explain. (1999,
2005 Bar)

A: To NULLIFY A DECISION of the

(a) The first is a special civil action
Court of Appeals the aggrieved party
under Rule 65, while the second is
should file a PETITION FOR
an appeal to the Supreme Court
REVIEW ON CERTIORARI in the
from the Court of Appeals,
Supreme Court under Rule 45 of the
Sandiganbayan and the Regional
Rules of Court instead of filing a
Trial Court under Rule 45.
petition for certiorari under Rule 65
(b) The first can be filed only on the
except under very exceptional
grounds of lack or excess of
circumstances. A long line of
jurisdiction or grave abuse of
Supreme Court decisions, too
discretion tantamount to lack or
numerous to mention, holds that
excess of jurisdiction, while the
certiorari is not a substitute for a lost
second is based on the errors of law
appeal. It should be noted, however,
of the lower court.
when the Court of Appeals imposes
(c) The first should be filed within sixty
the death penalty, or a lesser
(60) days from notice of the
penalty for offenses committed on
judgment, order or resolution sought
such occasion, appeal by petition for
to be assailed (Sec. 4, Rule 65).
review or ordinary appeal. In cases
while the second should be filed
when the Court of Appeals imposes
within fifteen (15) days from notice of
reclusion perpetua, life imprisonment
the judgment or final order or
or a lesser penalty, appeal is by
resolution appealed from, or of the
notice of appeal filed with the Court
denial of the petitioner’s motion for
of Appeals.
new trial or reconsideration filed in
due time after notice of the judgment
(Sec. 2, Rule 45).
(d) The first cannot generally be availed Q: After an information for rape was filed in
of as a substitute for a lost appeal the RTC, the DOJ Secretary, acting on the
under Rules 40. 41, 42, 43 and 45. accused's petition for review, reversed the
(e) Under the first, the lower court is investigating prosecutor's finding of
impleaded as a party respondent probable cause. Upon order of the DOJ
(Sec. 5, Rule 65), while under the Secretary, the trial prosecutor filed a Motion
second, the lower court is not to Withdraw Information which the judge
impleaded (Sec. 4, Rule of 45). granted. The order of the judge stated only
the following:
"Based on the review by the DOJ Secretary
Q: May the aggrieved party file a petition for of the findings of the investigating
certiorari in the Supreme Court under Rule prosecutor during the preliminary
65 of the 1997 Rules of Civil Procedure, investigation, the Court agrees that there is

Page 103 of 113

no sufficient evidence against the accused
to sustain the allegation in the information.
The motion to withdraw Information is,
therefore, granted."
If you were the private prosecutor, what
should you do? Explain. (2003, 2012 Bar)
A: If I were the private prosecutor, I
would file a petition for certiorari
under Rule 65 with the Court of
Appeals (Cerezo v.People, GR
No.185230, June 1, 2011). It is well-
settled that when the trial court is
confronted with a motion to withdraw
an Information (on the ground of lack
of probable cause to hold the
accused for trial based on a
resolution of the DOJ Secretary), the
trial court has the duty to make an
independent assessment of the
merits of the motion. It may either
agree or disagree with the
recommendation of the Secretary.
Reliance alone on the resolution of
the Secretary would be an
abdication of the trial court’s duty
and jurisdiction to determine a prima
facie case. The court must itself be
convinced that there is indeed no
sufficient evidence against the
accused. Otherwise, the judge acted
with grave abuse of discretion if he
grants the Motion to Withdraw
Information by the trial prosecutor
(Harold Tamargo v. Romulo
Awingan et. al. G.R. No. 177727,
January 19, 2010).
Q: After plaintiff in an ordinary civil action
before the RTC, ZZ has completed
presentation of his evidence, defendant
without prior leave of court moved for
dismissal of plaintiff’s complaint for
insufficiency of plaintiff’s evidence. After due
Page 104 of 113
hearing of the motion and the opposition
thereto, the court issued an order, reading
as follows: “The Court hereby grants
defendant’s motion to dismiss and
accordingly orders the dismissal of plaintiff’s
complaint, with the costs taxed against him.
It is so ordered.” Is the order of dismissal
valid? May plaintiff properly take an appeal?
Reason. (2004 Bar)
A: The order or decision is void
because it does not state findings of
fact and of law, as required by
Section14, Article VIII of the
Constitution and Sec. 1, Rule 36.
Being void, appeal is not available.
The proper remedy is certiorari
under Rule 65.
Q: Jaime was convicted for murder by the
Regional Trial Court of Davao City in a
decision promulgated on September 30,
2015. On October 5, 2015, Jaime filed a
Motion for New Trial on the ground that
errors of law and irregularities prejudicial to
his rights were committed during his trial.
On October 7, 2015, the private prosecutor,
with the conformity of the public prosecutor,
filed an Opposition to Jaime's motion. On
October 9, 2015, the court granted Jaime's
motion. On October 12, 2015, the public
prosecutor filed a motion for
reconsideration. The court issued an Order
dated October 16, 2015 denying the public
prosecutor's motion for reconsideration. The
public prosecutor received his copy of the
order of denial on October 20, 2015 while
the private prosecutor received his copy on
October 26, 2015.
a. What is the remedy available to the
prosecution from the court's order granting
Jaime's motion for new trial?
A: The remedy of the prosecution is
to file a petition for certiorari under
Rule 65 of the Rules of Court,
 because the denial of a motion for
reconsideration is merely an
interlocutory order and there is no
plain, speedy and adequate remedy
under the course of law.
Be that as it may, it may be argued
that appeal is the appropriate
remedy from an order denying a
motion for reconsideration of an
order granting a motion for new trial
because an order denying a motion
for reconsideration was already
removed in the enumeration of
matters that cannot be a subject of
an appeal under Section 1, Rule 41
of the Rules of Court.
b. In what court and within what period
should a remedy be availed of?
A: Following the principle of judicial
hierarchy, the petition for certiorari
should be filed before the Court of
Appeals within sixty (60) days from
receipt of the copy of the order of
denial of the public prosecutor’s
motion for reconsideration, or on
October 20, 2015.
c. Who should pursue the remedy? (2015
Bar)
A: The Office of the Solicitor General
(OSG) should pursue the remedy. In
criminal proceedings on appeal in
the Court of Appeals or in the
Supreme Court, the authority to
represent the people is vested solely
in the Solicitor General. Under
Presidential decree No. 4478 among
the specific powers and functions of
the OSG is to “represent the
government in the Supreme Court
and the Court of Appeals in all
criminal proceedings.” This provision
Page 105 of 113
has been carried over to the Revised
Administrative Code particularly in
Book IV, Title III, Chapter12 thereof.
Without doubt, the OSG is the
appellate counsel of the People of
the Philippines in all criminal cases
(Cariño v. de Castro, G.R. No.
176084, April 30, 2008).
Q: The Ombudsman found probable cause
to charge with plunder the provincial
governor, vice governor, treasurer, budget
officer, and accountant. An Information for
plunder was filed with the Sandiganbayan
against the provincial officials except for the
treasurer who was granted immunity when
he agreed to cooperate with the
Ombudsman in the prosecution of the case.
Immediately, the governor filed with the
Sandiganbayan a petition for certiorari
against the Ombudsman claiming there was
grave abuse of discretion in excluding the
treasurer from the Information.
a. Was the remedy taken by the governor
correct?
A: No, the remedy taken by the
Governor is not correct. The petition
for certiorari is a remedy that is only
available when there is no plain,
speedy and adequate remedy under
the ordinary course of law; hence,
the Governor should have filed a
Motion for Reconsideration.
Besides, there is no showing that
the Ombudsman committed grave
abuse of discretion in granting
immunity to the treasurer who
agreed to cooperate in the
prosecution of the case.
b. Will the writ of mandamus lie to compel
the Ombudsman to include the treasurer in
the Information? (2015 Bar)
 A: No, Mandamus will not lie to
compel the Ombudsman to include
the treasurer in the Information. In
matters involving exercise of
judgment and discretion, mandamus
may only be resorted to in order to
compel respondent tribunal,
corporation, board, officer or person
to take action, but it cannot be used
to direct the manner or particular
way discretion is to be exercised, or
to compel the retraction or reversal
of an action already taken in the
exercise of judgment or discretion
(Ampatuan, Jr. v. Secretary De
Lima, G.R. No. 197291, April 3,
2013).
Evidently, the Ombudsman’s act of
granting the treasurer immunity from
prosecution under such terms and
conditions as it may determine (Sec.
17, R.A. 6770) is a discretionary
duty that may not be compelled by
the extraordinary writ of mandamus.
MANDAMUS
Q: Petitioner Fabian was appointed Election
Registrar of the Municipality of Sevilla
supposedly to replace the respondent
Election Registrar Pablo who was
transferred to another municipality without
his consent and who refused to accept his
aforesaid transfer, much less to vacate his
position in Bogo Town as election registrar,
as in fact he continued to occupy his
aforesaid position and exercise his functions
thereto. Petitioner Fabian then filed a
petition for mandamus against Pablo but the
trial court dismissed Fabian’s petition
contending that quo warranto is the proper
remedy. Is the court correct in its ruling?
Why? (2001 Bar)
Page 106 of 113
A: Yes, the court is correct in its
ruling. Mandamus will not lie. This
remedy applies only where
petitioner’s right is founded clearly in
law, not when it is doubtful. Pablo
was transferred without his consent
which is tantamount to removal
without cause, contrary to the
fundamental guarantee on
nonremoval except for cause.
Considering that Pedro continued to
occupy the disputed position and
exercised his functions therein, the
proper remedy is quo warranto, not
mandamus(Garces v. Court of
Appeals,G.R. No. 114795, July 17,
1996).
Q: In 1996, Congress passed Republic Act
No. 8189, otherwise known as the Voter’s
Registration Act of 1996, providing for
computerization of elections. Pursuant
thereto, the COMELEC approved the
Voter’s Registration and Identification
System (VRIS) Project. It issued invitations
to pre-qualify and bid for the project. After
the public bidding, Fotokina was declared
the winning bidder with a bid of P6 billion
and was issued a Notice of Award. But
COMELEC Chairman Gener Go objected to
the award on the ground that under the
appropriations Act, the budget for the
COMELEC’s modernization is only P1
billion. He announced to the public that the
VRIS project has been set aside. Two
Commissioners sided with Chairman Go,
but the majority voted to uphold the
contract. Meanwhile, Fotokina filed with the
RTC a petition for mandamus to compel the
COMELEC to implement the contract. The
Office of the Solicitor General (OSG),
representing Chairman Go, opposed the
petition on the ground that mandamus does
not lie to enforce contractual obligations.
During the proceedings, the majority
Commissioners filed a manifestation that
Chairman Go was not authorized by the
COMELEC En Banc to oppose the petition.
Is a petition for mandamus an appropriate
remedy to enforce contractual obligations?
(1999, 2006 Bar)
A: No, the petition for mandamus is
not an appropriate remedy because
it is not available to enforce a
contractual obligation. Mandamus is
directed only to ministerial acts,
directing or commanding a person to
do a legal duty (COMELEC v.
Quijano-Padilla, G.R. No. 152992,
September 18, 2002; Sec. 3, Rule
65).
Q: A files a Complaint against B for
recovery of title and possession of land
situated in Makati with the RTC of Pasig. B
files a Motion to Dismiss for improper
venue. The RTC Pasig Judge denies B's
Motion to Dismiss, which obviously was
incorrect. Alleging that the RTC Judge
"unlawfully neglected the performance of an
act which the law specifically enjoins as a
duty resulting from an office," A files a
Petition for Mandamus against the judge.
Will Mandamus lie? Reasons. (2012 Bar)
A: No, mandamus will not lie. The
proper remedy is a petition for
prohibition (Serena v.
Sandiganbayan G.R. No. 162059,
January 22, 2008). The dismissal of
the case based on improper venue
is not a ministerial duty. Mandamus
does not lie to compel the
performance of a discretionary duty
(Nilo Paloma v. Danilo Mora, G.R.
No. 157783, September 23, 2005).
Quo Warranto
Page 107 of 113
Q: A group of businessmen formed an
association in Cebu City calling itself Cars C
to distribute/ sell cars in said city. It did not
incorporate itself under the law nor did it
have any government permit or license to
conduct its business as such. The Solicitor
General filed before a RTC in Manila a
verified petition for quo warranto
questioning and seeking to stop the
operations of Cars Co. The latter filed a
motion to dismiss the petition on the ground
of improper venue claiming that its main
office and operation are in Cebu City and
not in Manila. Is the contention of Cars Co.
correct? Why? (2001 Bar)
A: No. As expressly provided in the
Rules, when the Solicitor General
commences the action for quo
warranto, it may be brought in a
RTC in the city of Manila, as in this
case, in the Court of Appeals or in
the Supreme Court (Sec. 7, Rule
66).
EXPROPRIATION
Q: May Congress enact a law providing that
a 5,000 square meter lot, a part of the UST
compound in Sampaloc Manila, be
expropriated for the construction of a park in
honor of former City Mayor Arsenio Lacson?
As compensation to UST, the City of Manila
shall deliver its 5-hectare lot in Sta. Rosa,
Laguna originally intended as a residential
subdivision for the Manila City Hall
employees. Explain (2006 Bar)
A: Yes, Congress may enact a law
expropriating property provided that
it is for public use and with just
compensation. In this case, the
construction of a park is for public
use (See: Sena v. Manila Railroad
Co, G.R. No. 15915, September 7,
 1921; Reyes v. NHA, G.R. No.
147511, March 24, 2003). The
planned compensation, however, is
not legally tenable as the
determination of just compensation
is a judicial function. No statute,
decree or executive order can
mandate that the determination of
just compensation by the executive
or legislative departments can
prevail over the court’s findings
(Export Processing Zone Authority v.
Dulay, G.R. No. L-59603, April 29,
1987; Secs. 5 to 8 Rule 67). In
addition, compensation must be paid
in money (Esteban v. Onorio, AM
No. 004-166-RTC, June 29, 2001).
FORECLOSURE OF REAL ESTATE
MORTGAGE
Q:
a. Is the buyer in the auction sale arising
from an extra-judicial foreclosure entitled to
a writ of possession even before the
expiration of the redemption period? If so,
what is the action to be taken? b. After the
period of redemption has lapsed and the
title to the lot is consolidated in the name of
the auction buyer, is he entitled to the writ of
possession as a matter of right? If so, what
is the action to be take?
c. Suppose that after the title to the lot has
been consolidated in the name of the
acution buyer, said buyer sold the lot to a
third party without first getting a writ of
possession. Can the transferee exercise the
right of the auction buyer and claim that it is
Page 108 of 113
a ministerial duty of the court to issue a writ
of possession in his favour? Briefly explain.
(2016 Bar)
A:
a. Yes, the buyer in the auction sale
is entitled to a writ of possession
even before the expiration of the
redemption period upon the filing of
the ex parte petition for issuance of
a writ of possession and posting of
the appropriate bond. Under section
7 of Act No. 3135, as amended, the
writ of possession may be issued to
the purchaser in a foreclosure sale
either within the one-year
redemption period upon the filing of
a bond, or after the lapse of the
redemption period, without need of a
bond. (LZK Holdings and
Development Corporation v.
Planters Development Bank, G.R.
No. 167998, April 27, 2007) Stated
otherwise, Section 7 of Act No.
3135, as amended, also refers to a
situation wherein the purchaser
seeks possession of the foreclosed
property during the 12-month period
for redemption. Hence, upon the
purchaser’s filing of the ex parte
petition and posting of the
appropriate bond, the RTC shall, as
a matter of course, order the
issuance of the writ of possession in
favour of the purchaser (Spouses
Nicasio C. Marquez and Anita J.
Marquez v. Spouses Carlito Alindog
and Carmen Alindog, G.R. No.
184045, January 22, 2014; Spouses
Jose Gatuslao and Ermila Gatuslao
v. Leo Ray Yanson, G.R. No.
191540, January 21, 2015).
b. Yes, the auction buyer is entitled
to a writ of possession as a matter of
right. It is settled that the buyer in a
foreclosure sale becomes the
absolute owner of the property
purchased if it is not redeemed
within a period of one year after the
registration of the certificate of sale.
He is, therefore, entitled to the
possession of the property and can
demand it at any time following the
consolidation of ownership in his
name and the issuane to him of a
new transfer certificate of title. In
such a case, the bond required in
Section 7 of Act No. 3135 is no
longer necessary. Possession of the
land then becomes an absolute right
of the purchases as confirmed
owner. Upon proper application and
proof of title, the issuance of the writ
of possession becomes a ministerial
duty of the court (LZK Holdings and
Development Corporation v.
Planters Development Bank, G.R.
No. 167998, April 27, 2007; Sps.
Marquez v. Sps. Alindog, G.R. No.
184045, January 22, 2014; Sps.
Gatuslao v. Leo Ray Yanson, G.R.
No. 191540, January 21, 2015).
c. Yes, the transferee can exercise
the right of the auction buyer. A
transferee or successor-ininterest of
the auction buyer by virtue of the
contract of sale between them, is
considered to have stepped into the
shoes of the auction buyer. As such,
the transferee is necessarily entitled
to avail of the provisions of Sec. 7 of
Act 3135, as amended, as if he is
the auction buyer (Sps. Gatuslao v.
Yanson, ibid.). When the lot
purchased at a foreclosure slae is in
turn sold or transferred, the right to
the possession thereof, along with
all other rights of ownership,
transfers to its new owner (Sps.
Gallent v. Velasquez, G.R. No.
203949, Apr. 6, 2016). Ergo, it is a
Page 109 of 113
ministerial duty of the court to issue
a writ of possession in favour of the
transferee of the auction buyer.
FORCIBLE ENTRY AND UNLAWFUL
DETAINER
Q: A borrowed from the Development Bank
of the Philippines (DBP) the amount of P1
million secured by the titled land of his
friend B who, however, did not assume
personal liability for the loan. A defaulted
and DBP filed an action for judicial
foreclosure of the real estate mortgage
impleading A and B as defendants. In due
course, the court rendered judgment
directing A to pay the outstanding account
of P1.5 million (principal plus interest) to the
bank. No appeal was taken by A on the
Decision within the reglementary period. A
failed to pay the judgment debt within the
period specified in the decision.
Consequently, the court ordered the
foreclosure sale of the mortgaged land. In
that foreclosure sale, the land was sold to
the DPB for P1.2 million. The sale was
subsequently confirmed by the court, and
the confirmation of the sale was registered
with the Registry of Deeds on 05 January
2002. On 10 January 2003, the bank filed
an ex parte motion with the court for the
issuance of a writ of possession to oust B
from the land. It also filed a deficiency claim
for P800, 000.00 against A and B. The
deficiency claim was opposed by A and B.
a. Resolve the motion for the issuance of a
writ of possession.
A: In judicial foreclosure of banks
such as DBP, the mortgagor of
debtor whose real property has been
sold on foreclosure has the right to
redeem the property sold within one
year after the date (or registration of
the sale). However, the purchaser at
the auction sale has the right to
 obtain a writ of possession after the
finality of the order confirming the
sale (Sec. 3, Rule 68; Sec. 47, RA
8791 The General Banking Law of
2000). The motion for writ of
possession, however, cannot be
filed ex parte. There must be a
notice of hearing.
b. Resolve the deficiency claim of the bank.
(2003 Bar)
A: The deficiency claim of the bank
may be enforced against the
mortgage debtor A, but it cannot be
enforced against B, the owner of the
mortgaged property, who did not
assume personal liability for the
loan.
EJECTMENT
Q: On 10 January 1990, X leased the
warehouse of A under a lease contract with
a period of 5 years. On 08 June 1996, A
filed an unlawful detainer case against X
without a prior demand for X to vacate the
premises.
a. Can X contest his ejectment on the
ground that there was no prior demand for
him to vacate the premises?
A: Yes. X can contest his ejectment
on the ground that there was no
prior demand to vacate the premise
(Sec. 2, Rule 70; Casilan v.
Tomassi, G.R. No. L-16574,
February 28, 1964; Lesaca v.
Cuevas, G.R. No. L-48419, October
27, 1983).
Page 110 of 113
b. In case the Municipal Trial Court renders
judgment in favor of A, is the judgment
immediately executory? (1997 Bar)
A: Yes, because the judgment of the
Municipal Trial Court against the
defendant X is immediately
executory upon motion unless an
appeal has been perfected, a
supersedeas bond has been filed
and the periodic deposits of current
rentals, if any, as determined by the
judgment will be made with the
appellate court (Sec 19 ,Rule 70).
UNLAWFUL DETAINER
Q: In an action for unlawful detainer in the
Municipal Trial Court (MTC), defendant X
raised in his Answer the defense that
plaintiff A is not the real owner of the house
subject of the suit. X filed a counterclaim
against A for the collection of a debt of
P80,000 plus accrued interest of P15,000
and attorney’s fees of P20,000.
a. Is X’s defense tenable
A: NO. X’s defense is not tenable if
the action is filed by a lessor against
a lessee. However, if the right of
possession of the plaintiff depends
on his ownership then the defense is
tenable.
b. Does the MTC have jurisdiction over the
counterclaim? (1998 Bar)
A: The counterclaim is within the
jurisdiction of the Municipal Trial
Court which does not exceed
P100,000, because the principal
demand is P80,000, exclusive of
interest and attorney’s fees (Sec 33,
B.P. Blg. 129, as amended).
 However, inasmuch as all actions of
forcible entry and unlawful detainer
are subject to summary procedure
and since the counterclaim is only
permissive, it cannot be entertained
by the Municipal Trial Court (Sec. 1,
Revised Rule on Summary
Procedure).
Q: The spouses Juan reside in Quezon City.
With their lottery winnings, they purchased a
parcel of land in Tagaytay City for
P100,000.00. In a recent trip to their
Tagaytay property, they were surprised to
see hastily assembled shelters of light
materials occupied by several families of
informal settlers who were not there when
they last visited the property three (3)
months ago.
To rid the spouses’ Tagaytay property of
these informal settlers, briefly discuss the
legal remedy you, as their counsel, would
use; the steps you would take; the court
where you would file your remedy if the
need arises; and the reason/s for your
actions. (2013 Bar)
A: As counsel of spouses Juan, I will
file a special civil action for Forcible
Entry. The Rules of Court provides
that a person deprived of the
possession of any land or building
by force, intimidation, threat,
strategy or stealth may at any time
within (one) 1 year after such
withholding of possession bring an
action in the proper Municipal Trial
Court where the property is located.
This action which is summary in
nature seeks to recover the
possession of the property from the
defendant which was illegally
withheld by the latter (Sec. 1, Rule
70).
An ejectment case is designed to
restore, through summary
proceedings, the physical
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possession of any land or building to
one who has been illegally deprived
of such possession, without
prejudice to the settlement of the
parties’ opposing claims of juridical
possession in appropriate
proceedings (Heirs of Agapatio T.
Olarte and Angela A. Olarte et al. v.
Office of the President of
thePhilippines et al., G.R. No.
177995, June 15, 2011).
In Abad v. Farrales, G.R. No.
178635, April 11, 2011, the Supreme
Court held that two allegations are
indispensable in actions for forcible
entry to enable first level courts to
acquire jurisdiction over them: first,
that the plaintiff had prior physical
possession of the property; and,
second, that the defendant deprived
him of such possession by means of
force, intimidation, threats, strategy,
or stealth.
However, before instituting the said
action, I will first endeavor to
amicably settle the controversy with
the informal settlers before the
appropriate Lupon or Barangay
Chairman. If there is no agreement
reached after mediation and
conciliation under the Katarungang
Pambarangay Law, I will secure a
certificate to file action and file the
complaint for ejectment before the
MTC of Tagaytay City where the
property is located since ejectment
suit is a real action regardless of the
value of the property to be recovered
or claim for unpaid rentals (BP 129
and Sec. 1, Rule 4).
In the aforementioned complaint, I
will allege that Spouses Juan had
prior physical possession and that
the dispossession was due to force,
intimidation and stealth. The
 complaint will likewise show that the
action was commenced within a
period of one (1) year from unlawful
deprivation of possession, and that
Spouses Juan is entitled to
restitution of possession together
with damages and costs.
Q: BB files a complaint for ejectment in the
MTC on the ground of non-payment of
rentals against JJ. After two days, JJ files in
the RTC a complaint against BB for specific
performance to enforce the option to
purchases the land subject of the ejectment
case. What is the effect of JJ’s action on
BB’s complaint? Explain. (2000 Bar)
A: There is no effect. The ejectment
case involves possession de facto
only. The action to enforce the
option to purchase will not suspend
the action of ejectment for non-
payment or rentals (Willmon Auto
Supply Corp. v. Court of
Appeals,G.R. No. 97637, April 10,
1992).
Q: Landlord, a resident of Quezon City,
entered into a lease contract with Tenant, a
resident of Marikina City, over a residential
house in Las Pinas City. The lease contract
provided, among others, for a monthly rental
of P25,000.00, plus ten percent (10%)
interest rate in case of nonpayment on its
due date. Subsequently, Landlord migrated
to the United States of America (USA) but
granted in favor of his sister Maria, a special
power of attorney to manage the property
and file and defend suits over the property
rented out to Tenant. Tenant failed to pay
the rentals due for five (5) months.Maria
asks your legal advice on how she can
expeditiously collect from Tenant the unpaid
rentals plus interests due.
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a. What judicial remedy would you
recommend to Maria?
A: I will advise Maria to immediately
send a letter to the tenant
demanding the immediate payment
of the unpaid rentals plus interests
due. If the tenant refuses, Maria can
avail any of the following remedies:
1. A complaint under A.M. No. 08-8-7-
SC or the Rules of Procedure for
Small claims cases. Maria should
nonetheless waive the amount in
excess of P100,000 in order for her
to avail of the remedy under the said
Rules.
2. A complaint for collection of sum of
money under the Rules on Summary
Procedure, since Maria is only
claiming the unpaid rentals and
interest due from tenant.
3. If the tenant refuses or is unable to
pay the rentals within 1 year from
the last demand to vacate and pay, I
would advise Maria to file an action
for Unlawful Detainer.
b. Where is the proper venue of the judicial
remedy which you recommended?
A:
1. If Maria decides to file a complaint
for collection of sum of money under
the Rules of Summary Procedure or
Small Claims, the venue is the
residence of the plaintiff or
defendant, at the election if the
plaintiff (Sec. 2, Rule 4). Hence it
may be in Quezon City or Marikina
City, at the option of Maria.
2. If Maria files an action for
Unlawful detainer, the same shall be
commenced and tried in the
Municipal Trial Court of the
municipality or city wherein the real
 property involved, or a portion v. Garces, L- 25923, July 15, 1980;
thereof is situated (Sec. 1, Rule 4). Pascua v. Heirs of Segundo
Therefore, the venue is Las Pinas Simeon,G.R. No. L47717, May 2,
City. 1988; Patagan et. al. v. Panis, G.R.
No. 55630, April 8, 1988).
c. If Maria insists on filing an ejectment suit
against Tenant, when do you reckon the
one (1)-year period within which to file the
action? (2014 Bar) CONTEMPT

A: The reckoning point for

determining the one-year period
Q: A filed a complaint for the recovery of
within which to file the action is the
ownership of land against B who was
receipt if the last demand to vacate
represented by her counsel X. in the course
and pay (Sec. 2, Rule 70).
of the trial, B died. However, X failed to
notify the court of B’s death. The court
proceeded to hear the case and rendered
Q: Mr. Sheriff attempts to enforce a Writ of judgment against B. After the Judgment
Execution against X, a tenant in a became final, a writ of execution was issued
condominium unit, who lost in an ejectment against C, who being B’s sole heir, acquired
case. X does not want to budge and refuses the property. Did the failure of counsel X to
to leave. Y, the winning party, moves that X inform the court of B’s death constitute
be declared in contempt and after hearing, direct contempt? (1998 Bar)
the court held X guilty of indirect contempt.
If you were X’s lawyer, what would you do? A: No. It is not direct contempt under Sec. 1
Why? (2012 Bar) of Rule 71, but it is an indirect contempt
within the purview of Sec. 3 of Rule 71. The
A: If I were X’s lawyer, I would file a lawyer can also be subject of disciplinary
petition for certiorari under Rule 65. action (Sec. 16, Rule 3).
The judge should not have acted on
Y’s motion to declare X in contempt.
The charge of indirect contempt is
intiated through a verified petition
(Sec.4, Rule 71). The writ was not
directed to X but to the sheriff which
was directed to deliver the property
to Y. As the writ did not command
the judgment debtor to do anything,
he cannot be guilty of the facts
described in Rule 71 which is
“disobedience of or resistance to a
lawful writ, process, order, judgment,
or command of any court.” The
proper procedure is for the sheriff to
oust X availing of the assistance of
peace officers pursuant to Section
10(c) of Rule 39 (Lipa v. Tutaan, L-
16643, September 29, 1983; Medina

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