P r o v i s i o n a l
R e m e d i e s a n d S p e c i a l C i v i l A c t i o n s – A t t y . T r a n q u i l S a l v a d o r
PROVISIONAL REMEDIES
RULE 57: PRELIMINARY ATTACHMENT
PRELIMINARY ATTACHMENT: provisional remedy issued upon order of court when
action is pending to be levied upon property of defendant so property may be held
by sheriff as security for satisfaction of whatever judgment may be rendered
-Principal action
-Places property under custody of court (in custodia legis)
-Both petitioner and defendant may apply
Section 1. Grounds upon which attachment may issue. — At the commencement of
the action or at any time before entry of judgment, a plaintiff or any proper party
may have the property of the adverse party attached as security for the satisfaction
of any judgment that may be recovered in the following cases:
(a) In an action for the recovery of a specified amount of money or damages, other
than moral and exemplary, on a cause of action arising from law, contract, quasi-
contract, delict or quasi-delict against a party who is about to depart from the
Philippines 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. (1a)
GROUNDS:
1. In actions for recovery of a specified sum of money or damages except
moral & exemplary damages on a cause of action arising from sources of
obligation (law, contract, quasi-contract, delict/quasi-delict) against party
about to depart from Philippines with intent to defraud creditors.
Q: What if claim is for recovery of sum of money only?
You could only apply for attachment if the defendant is about to depart
with intent to defraud.
2. Actions for money/property embezzled or fraudulently misapplied or
converted to his own use by a public officer or an officer of a corp.,
attorney, factor, broker, agent/clerk in course of his employment or by any
person in a fiduciary capacity or for a wilful violation of duty
3. Actions to recover possession of property (real/personal) unjustly or
fraudulently taken, detained or converted when property has been
concealed or disposed of to prevent it from being found by applicant.
4. Actions against person guilty of fraud in contracting debt or incurring or
performing an obligation upon which action is based
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Metro Inc. v. Lara Gift & Decors (2009) (cited Liberty Insurance v. CA) –
what is fraud? Debtor intended to defraud the creditor in incurring the debt. Intent
is a condition of the mind. Fraud must relate to the execution of the agreement. It
must induced the other party into giving their consent. Preconceived plan not to pay.
Involves a question of fact.
To sustain an attachment on this ground, it must be shown that the debtor in
contracting the debt or incurring the obligation intended to defraud the creditor. The
fraud must relate to the execution of the agreement and must have been the reason
which induced the other party into giving consent which he would not have
otherwise given. To constitute a ground for attachment in Section 1(d), Rule 57 of
the Rules of Court, fraud should be committed upon contracting the obligation sued
upon. A debt is fraudulently contracted if at the time of contracting it the debtor has
a preconceived plan or intention not to pay, as it is in this case. The applicant for a
writ of preliminary attachment must sufficiently show the factual circumstances of
the alleged fraud because fraudulent intent cannot be inferred from the debtor’s
mere non-payment of the debt or failure to comply with his obligation.
- -Fraud in contracting obligation: if not for the fraud, person would not
contract
- -Fraud in performance (example): contractor promises to deliver home
furniture amounting to 2M but finds cheaper version amounting to 250K->
contract was entered into with all honesty
5. Actions against party who has removed or disposed of his property or is
about to do so with intent to defraud his creditors
- Unlike no. 3, this is directed against a specific person.
6. Actions against non-resident or on whom summons is served by
publication (NO FRAUD required)
Purpose:
1. seize property of debtor before final judgment
2. enable court to acquire jurisdiction over the property
WHEN to apply from preliminary attachment:
1. Commencement of action
2. Any time before entry of judgment
Q: when jurisdiction over the defendant should be acquired.
Manguila v. CA (cited Davao Light & Power v. CA) – It goes without saying that
whatever be the acts done by the Court prior to the acquisition of jurisdiction over
the person of defendant x x x issuance of summons, order of attachment and
writ of attachment x x x these do not and cannot bind and affect the
defendant until and unless jurisdiction over his person is eventually
obtained by the court, either by service on him of summons or other coercive
process or his voluntary submission to the court’s authority. Hence, when the sheriff
or other proper officer commences implementation of the writ of attachment, it is
essential that he serve on the defendant not only a copy of the applicant’s affidavit
and attachment bond, and of the order of attachment, as explicitly required by
Section 5 of Rule 57, but also the summons addressed to said defendant as well as
a copy of the complaint.
STAGES in grant of preliminary attachment:
1. Court issues order granting application
2. Writ of attachment issues
3. Writ is implemented -> court must have acquired jurisdiction over
defendant
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Section 2. Issuance and contents of order. — An order of attachment may be
issued either ex parte or upon motion with notice and hearing by the court in which
the action is pending, or by the Court of Appeals or the Supreme Court, and must
require the sheriff of the court to attach so much of the property in the Philippines of
the party against whom it is issued, not exempt from execution, as may be
sufficient to satisfy the applicant's demand, unless such party makes deposit or
gives a bond as hereinafter provided in an amount equal to that fixed in the order,
which may be the amount sufficient to satisfy the applicant's demand or the value of
the property to be attached as stated by the applicant, exclusive of costs. Several
writs may be issued at the same time to the sheriffs of the courts of different
judicial regions. (2a)
1. Upon MOTION: notice and hearing required in court where action is
pending
2. EX PARTE
PROCEDURE:
1. Complaint + Application for preliminary attachment filed in court (executive judge)
2. Conduct raffle
3. Assigned to another judge
4. Records are then forwarded
5. Judge immediately reads the files and examines the complaint
6. If he grants the order of attachment, require applicant to file a bond
- Court determines the value of the bond.
- “I am able and willing to post the bond”
7. Summons + complaint + Order + Copy of the bond (to acquire jurisdiction over the defendant.
Section 3. Affidavit and bond required. — An order of attachment shall be granted
only when it appears by the affidavit of the applicant, or of some other person who
personally knows the facts, that a sufficient cause of action exists, that the case is
one of those mentioned in section 1 hereof, that there is no other sufficient security
for the claim sought to be enforced by the action, and that the amount due to the
applicant, or the value of the property the possession of which he is entitled to
recover, is as much as the sum for which the order is granted above all legal
counterclaims. The affidavit, and the bond required by the next succeeding section,
must be duly filed with the court before the order issues. (3a)
Requisites for issuance of preliminary attachment:
1. Affidavit: must contain
-Sufficient case of action
-Grounds in Sec.1
-No other sufficient security for claim sought to be enforced by action
-Amount due to applicant/possession of which is entitled to recover is as
much as the sum for which the order is granted above all legal
counterclaims
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2. Bond
Section 4. Condition of applicant's bond. — The party applying for the order must
thereafter give a bond executed to the adverse party in the amount fixed by the
court in its order granting the issuance of the writ, conditioned that the latter will
pay all the costs which may be adjudged to the adverse party and all damages
which he may sustain by reason of the attachment, if the court shall finally adjudge
that the applicant was not entitled thereto. (4a)
-For damages and costs which may be adjudged to adverse party by reason of
attachment
Section 5. Manner of attaching property. — The sheriff enforcing the writ shall
without delay and with all reasonable diligence attach, to await judgment and
execution in the action, only so much of the property in the Philippines of the party
against whom the writ is issued, not exempt from execution, as may be sufficient to
satisfy the applicant's demand, unless the former makes a deposit with the court
from which the writ is issued, or gives a counter-bond executed to the applicant, in
an amount equal to the bond fixed by the court in the order of attachment or to the
value of the property to be attached, exclusive of costs. No levy on attachment
pursuant to the writ issued under section 2 hereof shall be enforced unless it is
preceded, or contemporaneously accompanied, by service of summons, together
with a copy of the complaint, the application for attachment the applicant's affidavit
and bond, and the order and writ of attachment, on the defendant within the
Philippines.
The requirement of prior or contemporaneous service of summons shall not apply
where the summons could not be served personally or by substituted service despite
diligent efforts, or the defendant is a resident of the Philippines temporarily absent
therefrom, or the defendant is a non-resident of the Philippines, or the action is one
in rem or quasi in rem. (5a)
-Sheriff enforcing writ shall attach property in the Philippines as may be sufficient to
satisfy applicant’s demand
-Sheriff shall not enforce if party against whom writ is issued: makes a deposit with
court OR gives counter-bond.
GENERAL RULE: Levy shall not be made unless the following are
contemporaneously served:
a. Service of summons
b. Copy of complaint
c. Application for attachment
d. Affidavit & bond
e. Order and writ of attachment
EXCEPT: Above mentioned shall not apply when:
a. Summons could not be served personally or by substituted service
b. Defendant is temporarily absent but he is a resident of the Phils.
c. Defendant is non-resident
d. Action is in rem or quasi in rem
Section 6. Sheriff's return. — After enforcing the writ, the sheriff must likewise
without delay make a return thereon to the court from which the writ issued, with a
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full statement of his proceedings under the writ and a complete inventory of the
property attached, together with any counter-bond given by the party against whom
attachment is issued, and serve copies thereof on the applicant. (6a)
-After enforcing writ-> sheriff shall make return with:
a. full statement of proceedings under writ
b. complete inventory of property attached
c. any counter-bond given by party
-Sheriff’s return served on applicant
Section 7. Attachment of real and personal property; recording thereof. — Real and
personal property shall be attached by the sheriff executing the writ in the following
manner:
(a) Real property, or growing crops thereon, or any interest therein, standing upon
the record of the registry of deeds of the province in the name of the party against
whom attachment is issued, or not appearing at all upon such records, or belonging
to the party against whom attachment is issued and held by any other person, or
standing on the records of the registry of deeds in the name of any other person, by
filing with the registry of deeds a copy of the order, together with a description of
the property attached, and a notice that it is attached, or that such real property
and any interest therein held by or standing in the name of such other person are
attached, and by leaving a copy of such order, description, and notice with the
occupant of the property, if any, or with such other person or his agent if found
within the province. Where the property has been brought under the operation of
either the Land Registration Act or the Property Registration Decree, the notice shall
contain a reference to the number of the certificate of title, the volume and page in
the registration book where the certificate is registered, and the registered owner or
owners thereof.
The registrar of deeds must index attachments filed under this section in the names
of the applicant, the adverse party, or the person by whom the property is held or in
whose name it stands in the records. If the attachment is not claimed on the entire
area of the land covered by the certificate of title, a description sufficiently accurate
for the identification of the land or interest to be affected shall be included in the
registration of such attachment;
(b) Personal property capable of manual delivery, by taking and safely keeping it in
his custody, after issuing the corresponding receipt therefor.
(c) Stocks or shares, or an interest in stocks or shares, of any corporation or
company, by leaving with the president or managing agent thereof, a copy of the
writ, and a notice stating that the stock or interest of the party against whom the
attachment is issued is attached in pursuance of such writ;
(d) Debts and credits, including bank deposits, financial interest, royalties,
commissions and other personal property not capable of manual delivery, by leaving
with the person owing such debts, or having in his possession or under his control,
such credits or other personal property, or with his agent, a copy of the writ, and
notice that the debts owing by him to the party against whom attachment is issued,
and the credits and other personal property in his possession, or under his control,
belonging to said party, are attached in pursuance of such writ;
(e) The interest of the party against whom attachment is issued in property
belonging to the estate of the decedent, whether as heir, legatee, or devisee, by
serving the executor or administrator or other personal representative of the
decedent with a copy of the writ and notice that said interest is attached. A copy of
said writ of attachment and of said notice shall also be filed in the office of the clerk
of the court in which said estate is being settled and served upon the heir, legatee
or devisee concerned.
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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. (7a)
WHAT may be SUBJECT of attachment:
1. Real property or any interest therein
2. Personal property capable of manual delivery
3. Stocks or shares or interest therein
4. Debts and credits (including bank deposits, financial interest, royalties,
commissions and other personal property not capable of manual delivery)
5. Interest of party against whom attachment is issues in property belonging
to estate of decedent
-If property sough to be attaches is in custodial egis-> copy of writ filed with proper
court and notice of attachment served upon custodian
Section 8. Effect of attachment of debts, credits and all other similar personal
property. — All persons having in their possession or under their control any credits
or other similar personal property belonging to the party against whom attachment
is issued, or owing any debts to him, at the time of service upon them of the copy of
the writ of attachment and notice as provided in the last preceding section, shall be
liable to the applicant for the amount of such credits, debts or other similar personal
property, until the attachment is discharged, or any judgment recovered by him is
satisfied, unless such property is delivered or transferred, or such debts are paid, to
the clerk, sheriff, or other proper officer of the court issuing the attachment. (8a)
GEN. RULE: Persons having possession or control of property of attached-> liable
to applicant for amount until attachment is discharged or judgment is satisfied
EXCEPT: if property is delivered/transferred to clerk or sheriff or proper officer of
court issuing attachment
Section 9. Effect of attachment of interests in property belonging to the estate of a
decedent. — The attachment of the interest of an heir, legatee, or devisee in the
property belonging to the estate of a decedent shall not impair the powers of the
executor, administrator, or other personal representative of the decedent over such
property for the purpose of administration. Such personal representative, however,
shall report the attachment to the court when any petition for distribution is filed,
and in the order made upon such petition, distribution may be awarded to such heir,
legatee or devisee, but the property attached shall be ordered delivered to the
sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any
person claiming under him. (9a)
-Attachment of interest of an heir in property belonging to estate of decedent shall
NOT impair powers of executor/administrator/personal rep
-Personal rep shall report attachment to court when any petition for distribution of
estate is filed
-Distribution may be awarded to heir but property attached should be delivered to
sheriff
Section 10. Examination of party whose property is attached and persons indebted
to him or controlling his property; delivery of property to sheriff. — Any person
owing debts to the party whose property is attached or having in his possession or
under his control any credit or other personal property belonging to such party, may
be required to attend before the court in which the action is pending, or before a
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commissioner appointed by the court, and be examined on oath respecting the
same. The party whose property is attached may also be required to attend for the
purpose of giving information respecting his property, and may be examined on
oath. The court may, after such examination, order personal property capable of
manual delivery belonging to him, in the possession of the person so required to
attend before the court, to be delivered to the clerk of the court or sheriff on such
terms as may be just, having reference to any lien thereon or claim against the
same, to await the judgment in the action. (10a)
-Person owing debts to party whose property is attached OR person in possession of
credit or personal property belonging to such party-> may be required to attend
before court and be examined on oath
-Party whose property is attached may also be required to attend and may be
examined under oath
-After examination, court may order delivery to clerk/sheriff
Section 11. When attached property may be sold after levy on attachment and
before entry of judgment. — Whenever it shall be made to appear to the court in
which the action is pending, upon hearing with notice to both parties, that the
property attached is perishable, or that the interests of all the parties to the action
will be subserved by the sale thereof, the court may order such property to be sold
at public auction in such manner as it may direct, and the proceeds of such sale to
be deposited in court to abide the judgment in the action. (11a)
-If property attached is perishable or interests of parties will be subserved by sale->
court may order sale in public auction
Section 12. Discharge of attachment upon giving counter-bond. — After a writ of
attachment has been enforced, the party whose property has been attached, or the
person appearing on his behalf, may move for the discharge of the attachment
wholly or in part on the security given. The court shall, after due notice and hearing,
order the discharge of the attachment if the movant makes a cash deposit, or files a
counter-bond executed to the attaching party with the clerk of the court where the
application is made, in an amount equal to that fixed by the court in the order of
attachment, exclusive of costs. But if the attachment is sought to be discharged with
respect to a particular property, the counter-bond shall be equal to the value of that
property as determined by the court. In either case, the cash deposit or the counter-
bond shall secure the payment of any judgment that the attaching party may
recover in the action. A notice of the deposit shall forthwith be served on the
attaching party. Upon the discharge of an attachment in accordance with the
provisions of this section, the property attached, or the proceeds of any sale
thereof, shall be delivered to the party making the deposit or giving the counter-
bond, or to the person appearing on his behalf, the deposit or counter-bond
aforesaid standing in place of the property so released. Should such counter-bond
for any reason be found to be or become insufficient, and the party furnishing the
same fail to file an additional counter-bond, the attaching party may apply for a new
order of attachment. (12a)
-After writ of attachment is enforced-> person whose property has been attached
may move for discharge of attachment wholly or in part on security given
-Court may order discharge (after due notice and hearing) if movant makes cash
deposit or files counter-bond in amount equal to that fixed by court
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-If attachment is discharged only to particular property: counter-bond = value of
property as determined by court
Discharge of attachment:
1. Counterbond - Post counterbond when attachment is already enforced. If merely
learned about the attachment, still cannot post counterbond.
2. Improper/irregular/excessive attachment – raised any time before enforcement
Improper – grounds not available
Irregular – process not followed
- Mere posting of counterbond does not automatically discharge attachment.
There must be a specific resolution for the discharge.
Security Pacific vs. Tria-Infante
Under the Rules, there are 2 ways to secure the discharge of an attachment. First,
the party whose property has been attached or a person appearing on his behalf
may post a security. Second, said party may show that the order of attachment was
improperly or irregularly issued.
Section 13. Discharge of attachment on other grounds. — The party whose
property has been ordered attached may file a motion with the court in which he
action is pending, before or after levy or even after the release of the attached
property, for an order to set aside or discharge the attachment on the ground that
the same was improperly or irregularly issued or enforced, or that the bond is
insufficient. If the attachment is excessive, the discharge shall be limited to the
excess. If the motion be made on affidavits on the part of the movant but not
otherwise, the attaching party may oppose the motion by counter-affidavits or other
evidence in addition to that on which the attachment was made. After due notice
and hearing, the court shall order the setting aside or the corresponding discharge
of the attachment if it appears that it was improperly or irregularly issued or
enforced, or that the bond is insufficient, or that the attachment is excessive, and
the defect is not cured forthwith. (13a)
1. Debtor has posted counter-bond or has made requisite cash deposit
2. Attachment was improperly or irregularly issued
3. Judgment rendered against attaching creditor
4. Property attached is exempt from execution
Magaling v. Ong (2008) – challenged for illegal/improper issuance. There
must be a hearing. Burden of proof is on the attaching creditor. Reasonable
opportunity to determine rights of the opposing party. Mere filing of opposition
without hearing is not equivalent to hearing. Lack of hearing bars discharge of
attachment. Under Sec 13 Rule 57, when the attachment is challenged for having
been illegally or improperly issued, there must be a hearing, with the burden of
proof to sustain the writ being on the attaching creditor. That hearing embraces not
only the right to present evidence but also a reasonable opportunity to know the
claims of the opposing parties and meet them. It means a fair and open hearing.
Written opposition filed is not equivalent to a hearing. The absence of a hearing
before the RTC bars the discharge of the writ of preliminary attachment for the
simple reason that the discharge or dissolution of said writ, whether under Sec. 12
or Sec. 13 of Rule 57 of the Rules of Court, as amended, shall be granted only “after
due notice and hearing.”
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Section 14. Proceedings where property claimed by third person. — If the property
attached is claimed by any person other than the party against whom attachment
had been issued or his agent, and such person makes an affidavit of his title
thereto, or right to the possession thereof, stating the grounds of such right or title,
and serves such affidavit upon the sheriff while the latter has possession of the
attached property, and a copy thereof upon the attaching party, the sheriff shall not
be bound to keep the property under attachment, unless the attaching party or his
agent, on demand of the sheriff, shall file a bond approved by the court to indemnify
the third-party claimant in a sum not less than the value of the property levied
upon. In case of disagreement as to such value, the same shall be decided by the
court issuing the writ of attachment. No claim for damages for the taking or keeping
of the property may be enforced against the bond unless the action therefor is filed
within one hundred twenty (120) days from the date of the filing of the bond.
The sheriff shall not be liable for damages for the taking or keeping of such property
to any such third-party claimant, if such bond shall be filed. Nothing herein
contained shall prevent such claimant or any third person from vindicating his claim
to the property, or prevent the attaching party from claiming damages against a
third-party claimant who filed a frivolous or plainly spurious claim, in the same or a
separate action.
When the writ of attachment is issued in favor of the Republic of the Philippines, or
any officer duly representing it, the filing of such bond shall not be required, and in
case the sheriff is sued for damages as a result of the attachment, he shall be
represented by the Solicitor General, and if held liable therefor, the actual damages
adjudged by the court shall be paid by the National Treasurer out of the funds to be
appropriated for the purpose. (14a)
-If property attached claimed by 3rd person claiming his title to property and
presents affidavit to support-> sheriff not bound to keep property UNLESS attaching
party file a bond approved by court to indemnify 3rd person
-No claim for damages for taking/keeping property UNLESS action filed within 120D
from date of filing bond
-When writ issued in favour of Republic-> filing of bond not required
Third party claim – who has a better right or interest over the property; execution
will be suspended
- In execution, vindicate right only in a separate action. In attachment,
vindicate right in same or separate action.
- In execution, judgment is final and executory. In attachment, case just
started.
- Third party claim is served by the sheriff.
- Third party claim can be treated as an intervention.
Q: Which would prevail: previous yet unregistered sale or subsequent duly
annotated? Valdevieso v. Damalerio – levy on attachment duly registered
takes precedence over prior unregistered sale
The settled rule is that levy on attachment, duly registered, takes
preference over a prior unregistered sale. This result is a necessary
consequence of the fact that the property involved was duly covered by the Torrens
system which works under the fundamental principle that registration is the
operative act which gives validity to the transfer or creates a lien upon the land.
The preference created by the levy on attachment is not diminished even by
the subsequent registration of the prior sale. This is so because an attachment
is a proceeding in rem. It is against the particular property, enforceable against the
whole world. The attaching creditor acquires a specific lien on the attached property
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which nothing can subsequently destroy except the very dissolution of the
attachment or levy itself. Such a proceeding, in effect, means that the property
attached is an indebted thing and a virtual condemnation of it to pay the owner’s
debt. The lien continues until the debt is paid, or sale is had under execution issued
on the judgment, or until the judgment is satisfied, or the attachment discharged or
vacated in some manner provided by law.
Q: What if the court renders a judgment and there is a previous
attachment, duly registered, what will be the subject of execution?
- Levy on attachment duly registered takes preference over a prior
unregistered sale. The preference created by attachment is not defeated
by the subsequent registration of a prior sale, because attachment is a
proceeding in rem.
- If there is money duly garnished or obtained through sale of perishable
goods, the money will be appiled.
- If insufficient, use real or personal property that has been attached. But
these have to be sold in a pub. Sale in accordance with R. 39.
Q: What is the attached property is insufficient to satisffy judgment?
The court proceeds with the ordinary execution to cover the balance.
Rural Bank of Sta. Barbara v. Manila Mission (2009)
A motion to release property from attachment was treated as a third party claim
(can also be found in Rule 57, Sec. 14). Works as the same manner as a third party
claim, except for one difference:
o Usually, in execution – The applicant posted a bond when he applied
for a writ of attachment (to cover whatever damages defendant will
suffer due to attachment) By reason of a third party claim, with no
bond, the process will be suspended. Now it is the burden of the
applicant to post another bond to cover the third party’s damages.
o In attachment – more or less the same procedure. The third party
claim suspends the attachment procedure. But the right of the third
party claimant in execution in attachment could be vindicated in the
same or in a separate action. In execution, it could only be done in a
separate action.
Why? Because in execution, the judgment is already final.
In Rural Bank, a motion was filed to release property from attachment, giving
affidavit of title to the sheriff. The court said that the filing of the motion can be
deemed the same as a third party claim (because 3P claim must be filed with
sheriff). It can also be treated as a form of intervention.
Section 15. Satisfaction of judgment out of property attached, return of sheriff. —
If judgment be recovered by the attaching party and execution issue thereon, the
sheriff may cause the judgment to be satisfied out of the property attached, if it be
sufficient for that purpose in the following manner:
(a) By paying to the judgment obligee the proceeds of all sales of perishable or
other property sold in pursuance of the order of the court, or so much as shall be
necessary to satisfy the judgment;
(b) If any balance remains due, by selling so much of the property, real or personal,
as may be necessary to satisfy the balance, if enough for that purpose remain in the
sheriff's hands, or in those the clerk of the court;
(c) By collecting from all persons having in their possession credits belonging to the
judgment obligor, or owing debts to the latter at the time of the attachment of such
credits or debts, the amount of such credits and debts as determined by the court in
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the action, and stated in the judgment, and paying the proceeds of such collection
over to the judgment obligee.
The sheriff shall forthwith make a return in writing to the court of his proceedings
under this section and furnish the parties with copies thereof. (15a)
-If judgment be recovered by attaching party, sheriff may cause judgment to be
satisfied out of property attached in the following manner:
a. Paying to judgment obligee proceeds of all sales of perishable/other property
sold
b. Balance remains due by selling so much of property (real/personal) as may be
necessary to satisfy balance
c. Collecting from all persons having their possession credits belonging to
judgment obligor or owing debts to latter at time of attachment
-Sheriff shall make a return in writing
Section 16. Balance due collected upon an execution; excess delivered to judgment
obligor. — If after realizing upon all the property attached, including the proceeds of
any debts or credits collected, and applying the proceeds to the satisfaction of the
judgment less the expenses of proceedings upon the judgment any balance shall
remain due, the sheriff must proceed to collect such balance as upon ordinary
execution. Whenever the judgment shall have been paid, the sheriff, upon
reasonable demand, must return to the judgment obligor the attached property
remaining in his hands, and any proceeds of the sale of the property attached not
applied to the judgment. (16a)
-If upon all property attached, there is still a balance-> sheriff must collect as upon
ordinary execution
-Whenever judgment shall have been paid-off-> sheriff must return to judgment
obligor attached property and any proceeds of sale of property attached not applied
to judgment
Section 17. Recovery upon the counter-bond. — When the judgment has become
executory, the surety or sureties on any counter-bond given pursuant to the
provisions of this Rule to secure the payment of the judgment shall become charged
on such counter-bond and bound to pay the judgment obligee upon demand the
amount due under the judgment, which amount may be recovered from such surety
or sureties after notice and summary hearing in the same action. (17a)
-When judgment became executory-> surety on any counter-bond given to secure
payment of judgment shall be charged on such counter-bond and bound to pay
judgment obligee amount recovered from surety after notice and summary hearing
Section 18. Disposition of money deposited. — Where the party against whom
attachment had been issued has deposited money instead of giving counter-bond, it
shall be applied under the direction of the court to the satisfaction of any judgment
rendered in favor of the attaching party, and after satisfying the judgment the
balance shall be refunded to the depositor or his assignee. If the judgment is in
favor of the party against whom attachment was issued, the whole sum deposited
must be refunded to him or his assignee. (18a)
-Where party against attachment is issued deposited money-> money shall be
applied to satisfaction of judgment rendered in favour of attaching party
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-After satisfying judgment-> balance to be refunded to depositor
-If judgment is issued in favour of party against whom attachment was issued->
whole sum deposited must be refunded to him
Section 19. Disposition of attached property where judgment is for party against
whom attachment was issued. — If judgment be rendered against the attaching
party, all the proceeds of sales and money collected or received by the sheriff, under
the order of attachment, and all property attached remaining in any such officer's
hands, shall be delivered to the party against whom attachment was issued, and the
order of attachment discharged. (19a)
-If judgment is rendered against attaching party-> all proceeds of sale and property
attached-> give back to party against whom attachment was issued and order of
attachment discharged.
Section 20. Claim for damages on account of improper, irregular or excessive
attachment. — An application for damages on account of improper, irregular or
excessive attachment must be filed before the trial or before appeal is perfected or
before the judgment becomes executory, with due notice to the attaching party and
his surety or sureties setting forth the facts showing his right to damages and the
amount thereof. Such damages may be awarded only after proper hearing and shall
be included in the judgment on the main case.
If the judgment of the appellate court be favorable to the party against whom the
attachment was issued he must claim damages sustained during the pendency of
the appeal by filing an application in the appellate court, with notice to the party in
whose favor the attachment was issued or his surety or sureties, before the
judgment of the appellate court becomes executory. The appellate court may allow
the application to be heard and decided by the trial court.
Nothing herein contained shall prevent the party against whom the attachment was
issued from recovering in the same action the damages awarded to him from any
property of the attaching party not exempt from execution should the bond or
deposit given by the latter be insufficient or fail to fully satisfy the award. (20a)
-Application for damages (bec. of improper/irregular/excessive attachment)-> filed
before trial or perfection of appeal or before judgment becomes executory; with
notice to attaching party showing facts to support his right to damages and amount
thereof.
-If judgment of appellate court is favourable to party against whom attachment was
issued-> he may claim damages sustained during pendency of appeal; with notice
to party in whose favour attachment was issued; before judgment becomes
executory
- Applies to all provisional remedies EXCEPT support
- Can apply in the trial court or appellate court (in the latter, in case of
reversal and require trial court to receive evidence)
- Apply during the reglementary period, even perfection
- Not apply when case is final and executory
- Claim damages from the bond of applicant
- Recover actual damages for wrongful attachment without need of proof
that plaintiff acted in bad faith
- Wrongful + Malicious = recover actual, moral, and exemplary damages
(Defendant discharge burden of nature and extent of damages)
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Basis of court in actual damages – prove the following: (1) best evidence –
fact of lost and injury suffered ; not capable of proof but proved with
reasonable degree of certainty; (2) amount thereof
Q: How do you prove moral and exemplary damages?
Wrongful attachment was with malice or bad faith.
Q: Can you recover attorney’s fees?
GR: Not award if there’s no award of moral or exemplary damages.
EX: incurred expenses for the lift of a morally issued attachment.
Yu v. Yu Te (2007) – evidence of wrongful attachment
To merit an award of actual damages arising from a wrongful attachment, the
attachment defendant must prove, with the best evidence obtainable, the fact of
loss or injury suffered and the amount thereof. Such loss or injury must be of the
kind which is not only capable of proof but must actually be proved with a
reasonable degree of certainty. As to its amount, the same must be measurable
based on specific facts, and not on guesswork or speculation. In particular, if the
claim for actual damages covers unrealized profits, the amount of unrealized
profits must be established and supported by independent evidence of the mean
income of the business undertaking interrupted by the illegal seizure.
Q: Can actual damages cover unrealized profits?
YES, but supported by independent evidence of the income of the business
undertaking
D. M. Wenceslao v. Readycon55 – when you post the counterbond, does it
mean you waive claim for damages?
Posting of a counter-bond is not tantamount to a waiver of the right to damages
arising from a wrongful attachment. Whether the attachment was discharged by
either of the two (2) ways indicated in the law, i.e., by filing a counterbond or by
showing that the order of attachment was improperly or irregularly issued, the
liability of the surety on the attachment bond subsists because the final reckoning is
when "the Court shall finally adjudge that the attaching creditor was not entitled" to
the issuance of the attachment writ in the first place. The attachment debtor cannot
be deemed to have waived any defect in the issuance of the attachment writ by
simply availing himself of one way of discharging the attachment writ, instead of the
other. Moreover, the filing of a counterbond is a speedier way of discharging the
attachment writ maliciously sought out by the attaching party creditor instead of the
other way, which in most instances like in the present case, would require
presentation of evidence in a fullblown trial on the merits and cannot easily be
settled in a pending incident of the case.
Republic vs. Saludares
• When a writ of attachment has been levied on real property or any interest
therein belonging to the judgment debtor, the levy creates a lien which nothing
can destroy but its dissolution, a rule likewise applicable to the writ of
sequestration
• The law does not provide the length of time during which an attachment lien
shall continue after the rendition of judgment, and it must therefore continue
until the debt is paid, or sale is had under execution issued in the judgment, or
until the judgment is satisfied, or the statement discharged or vacated in some
manner provided by law
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Additional Notes: based on the cases assigned in class –
Th Court of Appeals is empowered to try cases and conduct hearings to resolve
factual issues. Therefore, the amount of damages recoverable as a result of the
issuance of an illegal attachment during the pendency of an appeal is a factual
issue. (Hanil Development Co. vs. IAC)
A writ of attachment should not issue where the sheriff’s certificate of sale, upon
which the mortgagee depended for it’s issuance, is allegedly questionable.
Moreover, it would have been easy for the bank to ascertain that no ricemill stood
on the lot in question. Since the bank took NO action within 4 years, it should
ordinarily not be entitled to a writ of preliminary attachment based on the
mortgagor’s alleged fraud. (Dinsay vs. Judge Hibionada and Traders Royal
Bank)
There is nothing in the Rules which makes notice and hearing indispensible and
mandatory for the issuance of a writ of attachment. It is simply the duty of the court
to ensure that the writ is issued on concrete and specific grounds and not on general
averments. As such, there is no reason why the evidence in the main case cannot be
used as a basis for the issuance of a writ of attachment.
ALSO, the Rules specifically state that a motion for a writ of attachment may be filed
upon commencement of the action or at anytime therafter. The trial court does NOT
lose jurisdiction to issue the writ upon perfection of an appeal. (Uy vs. CA)
after an action is properly commenced 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. This 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, 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. (Master Tours and Travel Corporation vs.
Court of Appeals)
To constitute a ground for attachment in Section 1 (d), Rule 57 of the Rules of
Court, fraud should be committed upon contracting the obligation sued upon. A debt
is fraudulently contracted if at the time of contracting it the debtor has a
preconceived plan or intention not to pay. Fraud is a state of mind and need not be
proved by direct evidence but may be inferred from the circumstances attendant in
each case. The issuance of a fraudulent Transfer Certificate of Title and
misrepresentation as to the heavily encumbered motor vehicle as collaterals to
secure the indemnity bond in favor of the petitioner, as well as the subsequent
alienation of respondent’s two (2) condominium units in favor of the company of
which respondent is the President, are proofs of the devious scheme of respondent
to defraud petitioner. (Liberty Insurance Corporation vs. Court of Appeals)
The prerequisites for conducting a raffle when there is a prayer for a writ of
preliminary injunction or temporary restraining order are: (1) notice to and (b)
presence of the adverse party or person to be enjoined.
The above rule also provides that the notice shall be preceded or accompanied by a
service of summons to the adverse party or person to be enjoined. The second
paragraph clearly states, though, that the required prior or contemporaneous
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service of summons may be dispensed with in the following instances: (a) when the c) Urgent and paramount necessity for the writ to prevent serious damages
summons cannot be served personally or by substituted service despite diligent - Gen. Rule: will not issue against acts already consummated
efforts, (b) when the adverse party is a resident of the Philippines temporarily o Exception: if the acts are of a continuing nature and were in derogation of
absent therefrom, or (c) when such party is a nonresident. (Gonzales vs. State plaintiff’s rights at the outset
Properties Corporation)
Section 2. Who may grant preliminary injunction. — A preliminary injunction may
What can the petitioner do to quash the attachment? There are two courses of be granted by the court where the action or proceeding is pending. If the action or
action available to the petitioner: First. To file a counterbond in accordance with proceeding is pending in the Court of Appeals or in the Supreme Court, it may be
Rule 57, Section 12, Second. To quash the attachment on the ground that it was issued by said court or any member thereof. (2a)
irregularly or improvidently issued, as provided for in Section 13.
- Applied for in the court where the action is pending
when the writ of attachment is issued upon a ground which is at the same time the o SC in its orig and appellate jurisdiction; by the court or any member thereof
applicant’s cause of action, the only other way the writ can be lifted or dissolved is o CA whether or not in aid of its appellate jurisdiction; by the court or any
by a counterbond, in accordance with Section 12 of the same rule. (Chuidian vs. member thereof
Sandiganbayan) o RTC in cases pending before it w/in its territorial jurisdiction
o Sandiganbayan
o CTA
RULE 58- PRELIMINARY INJUNCTION - If the main action is for INJUNCTION, MTC cannot grant the preliminary injunction
bec it is incapable of pecuniary estimation, cognizable by the RTC
- An ancillary or preventive remedy where a court requires a person, a party or
Section 3. Grounds for issuance of preliminary injunction. — A preliminary
even a court or tribunal either to refrain (prohibitory), from or to perform
injunction may be granted when it is established:
(mandatory) particular acts during the pendency of an action
(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
PROHIBITORY INJUNCTION MANDATORY INJUNCTION
complained of, or in requiring the performance of an act or acts either for a limited
Prevent a person from the Require a person to perform a period or perpetually;
performance of a particular act particular act (b) That the commission, continuance or non-performance of the act or acts
Act has not yet been performed Act has already been complained of during the litigation would probably work injustice to the applicant; or
performed and this act has (c) That a party, court, agency or a person is doing, threatening, or is attempting to
violated the rights of another do, or is procuring or suffering to be done some act or acts probably in violation of
Status quo is preserved Status quo is restored the rights of the applicant respecting the subject of the action or proceeding, and
INJUNCTION PRELIMINARY INJUNCTION tending to render the judgment ineffectual. (3a)
Independent action Incident to an independent
action 1. Applicant is ENTITLED to the relief demanded;
Seeks a judgment embodying Seeks to preserve the status 2. COMMISSION, continuance, or non-performance of the act/s would work an
final injunction quo until the merits can be injustice to the applicant; or
heard 3. 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/s probably in violation of the
- Preservative remedy for the protection of substantive rights or interests rights of the applicant respecting the subject of the action or proceeding.
- PURPOSE: to preserve the status quo or to prevent future wrongs
o STATUS QUO- the last actual, peaceable and uncontested situation w/c - In the absence of proof of a legal right and the injury sustained by the plaintiff, an
precedes a controversy order for the issuance of a writ of preliminary injunction will be nullified.
- To establish the essential requisites for a preliminary injunction, the EVIDENCE to
Section 1. Preliminary injunction defined; classes. — A preliminary injunction is an be submitted by the plaintiff need not be conclusive or complete. They are only
order granted at any stage of an action or proceeding prior to the judgment or final required to show that they have an ostensible right to the final relief prayed for in
order, requiring a party or a court, agency or a person to refrain from a particular their complaint. A writ of preliminary injunction is only based on initial or
act or acts. It may also require the performance of a particular act or acts, in which incomplete evidence.
case it shall be known as a preliminary mandatory injunction. (1a)
o Findings of a court granting or denying a petition for a writ of preliminary
- Granted at any stage of the proceedings prior to the judgment or final order injunction based on the evidence on record are merely provisional until after
- Requisites: the trial on the merits of the case shall have been concluded.
a) Right of the complainant is clear and unmistakable
b) Breach of the right

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HUTCHINSON PORTS PHILS. LTD. v. SBMA
For an injunctive writ to be issued, the following requisites must be proven: (1)That
the petitioner/applicant must have a clear and unmistakable right. (2)That there is a
material and substantial invasion of such right. (3)That there is an urgent and
permanent necessity for the writ to prevent serious damage.
HPPL has not sufficiently shown that it has a clear and unmistakable right to be
declared the winning bidder with finality. Though the SBMA Board of Directors, by
resolution, may have declared HPPL as the winning bidder, said award cannot be
said to be final and unassailable. The SBMA Board of Directors and other officers
are subject to the control and supervision of the Office of the President. There being
no clear and unmistakable right on the part of petitioner HPPL, the rebidding of the
proposed project can no longer be enjoined as there is no material and substantial
invasion to speak of. Thus, there is no longer any urgent or permanent necessity
for the writ to prevent any perceived serious damage.
Section 4. Verified application and bond for preliminary injunction or temporary
restraining order. — A preliminary injunction or temporary restraining order may be
granted only when:
(a) The application in the action or proceeding is verified, and shows facts entitling
the applicant to the relief demanded; and
(b) Unless exempted by the court the applicant files with the court where the action
or proceeding is pending, a bond executed to the party or person enjoined, in an
amount to be fixed by the court, to the effect that the applicant will pay to such
party or person all damages which he may sustain by reason of the injunction or
temporary restraining order if the court should finally decide that the applicant was
not entitled thereto. Upon approval of the requisite bond, a writ of preliminary
injunction shall be issued. (4a)
(c) When an application for a writ of preliminary injunction or a temporary
restraining order is included in a complaint or any initiatory pleading, the case, if
filed in a multiple-sala court, shall be raffled only after notice to and in the presence
of the adverse party or the person to be enjoined. In any event, such notice shall be
preceded, or contemporaneously accompanied, by service of summons, together
with a copy of the complaint or initiatory pleading and the applicant's affidavit and
bond, upon the adverse party in the Philippines.
However, where the summons could not be served personally or by substituted
service despite diligent efforts, or the adverse party is a resident of the Philippines
temporarily absent therefrom or is a nonresident thereof, the requirement of prior or
contemporaneous service of summons shall not apply.
(d) The application for a temporary restraining order shall thereafter be acted upon
only after all parties are heard in a summary hearing which shall be conducted
within twenty-four (24) hours after the sheriff's return of service and/or the records
are received by the branch selected by raffle and to which the records shall be
transmitted immediately.
1. Verified application
2. Applicant must establish that he has a right to relief, a right in esse or a right to
be protected and the act against w/c the injunction is directed is violative of such
right.
3. Applicant must also establish that there is need to restrain the commission or
continuance of acts complained of and if not enjoined would work injustice to the
applicant
4. Post a bond, unless exempted by the court
a. Shall be the amount fixed by the court, executed in favor of the party enjoined
to the effect that the applicant shall pay to the party enjoined all damages w/c
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he may have sustained by reason of the preliminary injunction or the
restraining order if the court should finally decide that the applicant was not
entitled
5. If the application is filed in a multi-sala court, it shall be raffled only after notice
to and in the presence of the party sought to be enjoined.
a. The notice shall be preceded or contemporaneously accompanied by service of
summons upon the defendant
b. If the summons could not be served upon the defendant either personally or
through substituted service or when the defendant is temporarily out of the
Philippines or when he is a non-resident, the requirement of service shall not
apply
Section 5. Preliminary injunction not granted without notice; exception. — No
preliminary injunction shall be granted without hearing and prior notice to the party
or person sought to be enjoined. If it shall appear from facts shown by affidavits or
by the verified application that great or irreparable injury would result to the
applicant before the matter can be heard on notice, the court to which the
application for preliminary injunction was made, may issue a temporary restraining
order to be effective only for a period of twenty (20) days from service on the party
or person sought to be enjoined, except as herein provided. Within the said twenty-
day period, the court must order said party or person to show cause, at a specified
time and place, why the injunction should not be granted, determine within the
same period whether or not the preliminary injunction shall be granted, and
accordingly issue the corresponding order. (Bar Matter No. 803, 17 February 1998)
However, and subject to the provisions of the preceding sections, if the matter is of
extreme urgency and the applicant will suffer grave injustice and irreparable injury,
the executive judge of a multiple-sala court or the presiding judge of a single sala
court may issue ex parte a temporary restraining order effective for only seventy-
two (72) hours from issuance but he shall immediately comply with the provisions of
the next preceding section as to service of summons and the documents to be
served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge
before whom the case is pending shall conduct a summary hearing to determine
whether the temporary restraining order shall be extended until the application for
preliminary injunction can be heard. In no case shall the total period of effectivity of
the temporary restraining order exceed twenty (20) days, including the original
seventy-two hours provided herein.
In the event that the application for preliminary injunction is denied or not resolved
within the said period, the temporary restraining order is deemed, automatically
vacated. The effectivity of a temporary restraining order is not extendible without
need of any judicial declaration to that effect and no court shall have authority to
extend or renew the same on the same ground for which it was issued.
However, if issued by the Court of Appeals or a member thereof, the temporary
restraining order shall be effective for sixty (60) days from service on the party or
person sought to be enjoined. A restraining, order issued by the Supreme Court or a
member thereof shall be effective until further orders. (5a)
- Cannot be issued w/o prior notice and hearing and cannot be issued ex parte
- Exceptions:
1) Matter of extreme urgency
o Application for TRO shall be acted upon only after all parties are heard in a
summary hearing
§ Shall be conducted w/in 24 HRS after the sheriff’s return of service and/or
the records are received by the branch selected by raffle and to w/c the
records shall be transmitted immediately
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o When the case is raffled, the period w/in w/c to conduct a summary hearing
in a TRO application is 24 HRS after the records are transmitted to the
branch to w/c it is raffled
o The executive judge (multi-sala) or the presiding judge (single sala) may
issue a TRO effective for 72 HRS from issuance, not service.
§ w/in this period, the executive judge shall conduct a summary hearing to
determine whether or not the TRO can be extended to 20 days. The 72 hrs
will be included in the 20 day period.
2) Great or irreparable injury
o Court in w/c the preliminary injunction was made may issue a TRO ex parte
for a period not exceeding 20 days from service to the party sought to be
enjoined
§ w/in the said 20-day period, the court must order said party to show cause
why the injunction should not be granted
§ also w/in the said period, court shall determine whether or not the
preliminary injunction shall be granted and then shall issue the
corresponding order
o applicant shall file a BOND, unless exempted the court
INJURY- considered irreparable if it is of such constant and frequent recurrence that
no fair or reasonable redress can be had therefore in court of law or where there is
no standard by w/c their amount can be measure w/reasonable accuracy
STATUS QUO ORDER
- not a TRO
- more of a cease and desist order, has no specified duration and does not
specifically direct the performance of an act
- lasts until it is revoked
ISSUANCE OF TRO BY CA AND THE SC
- CA: 60 DAYS and automatically expires on the 60th day
- SC: effective until further orders
NATURE OF AN ORDER GRANTING PRELIMINARY INJUNCTION
- Entirely w/in the discretion of the court and is generally not interfered except in
cases of manifest abuse
- The assessment and the evaluation of evidence in its issuance involve findings of
facts ordinarily left to the court for its conclusive determination
- An interlocutory order, hence not appealable. The correct remedy is certiorari.
CASES WHERE INJUNCTION/PRELIMINARY INJUNCTION WILL NOT BE ISSUED:
1. Labor disputes
2. Concessions, licenses, and other permits issued by public administrative
officials or bodies for the exploitation of natural resources
3. Acquisition, clearance, dev’t of the right-of-way and/or site or location of any
gov’t project
4. Bidding or awarding of contract/project of the nat’l gov’t
5. Commencement, prosecution, operation of any such contract or project
6. Termination or rescission of any such contract or project
7. Undertaking or authorization of any other lawful activity necessary for such
contract/project
8. Application, implementation or enforcement of CARP
9. Against the Asset Privitization Trust
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10. Not interfere w/the orders of another court of co-equal rank or decrees of a
court w/concurrent or coordinate jurisdiction
11. RTC may not issue injunction against quasi-judicial agencies of equal rank like
SEC and SSS nor against the IPO, COMELEC OR WCC.
12. Collection of any nat’l internal revenue tax, fee, or charge imposed by the Tax
Code
13. Consummated acts
14. Where the effect would dispose the main case w/o trial
15. Examining an institution by the BSP subject to its examination or supervision,
unless there is convincing proof that the action of the BSP is plainly arbitrary
and made in bad faith
NHA v. JUDGE ALLARDE
The law clearly prohibits the courts of the land from issuing injunctive writs against
the execution of government infrastructure projects. Furthermore the court in this
case said that before a writ of preliminary injunction may issue there must be a
clear showing by the complaint of a right to be protected and that acts against
which the writ is to be directed infringe such right. IN this case it was clearly shown
that Mate had no right for the relief sought.
DUTY OF THE COURT THAT ISSUED THE WRIT
- Court that issued against a lower court, board, officer, or quasi-judicial agency
shall decide the main case or petition w/in 6 mos from issuance of the writ
Section 6. Grounds for objection to, or for motion of dissolution of, injunction or
restraining order. — The application for injunction or restraining order may be
denied, upon a showing of its insufficiency. The injunction or restraining order may
also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of
the party or person enjoined, which may be opposed by the applicant also by
affidavits. It may further be denied, or if granted, may be dissolved, if it appears
after hearing that although the applicant is entitled to the injunction or restraining
order, the issuance or continuance thereof, as the case may be, would cause
irreparable damage to the party or person enjoined while the applicant can be fully
compensated for such damages as he may suffer, and the former files a bond in an
amount fixed by the court conditioned that he will pay all damages which the
applicant may suffer by the denial or the dissolution of the injunction or restraining
order. If it appears that the extent of the preliminary injunction or restraining order
granted is too great, it may be modified. (6a)
1) File a motion to dissolve the injunction or TRO w/notice and hearing
2) Affidavits to show not entitled
3) Counter-bond for the damages that must allege will be far greater than the
applicant’s
- INSUFFICIENCY is not a ground to dissolve
Section 7. Service of copies of bonds; effect of disapproval of same. — The party
filing a bond in accordance with the provisions of this Rule shall forthwith serve a
copy of such bond on the other party, who may except to the sufficiency of the
bond, or of the surety or sureties thereon. If the applicant's bond is found to be
insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond
sufficient in amount with sufficient sureties approved after justification is not filed
forthwith the injunction shall be dissolved. If the bond of the adverse party is found
to be insufficient in amount, or the surety or sureties thereon fail to justify a bond
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sufficient in amount with sufficient sureties approved after justification is not filed NOTE: Effectivity may be extended after conducting a summary hearing within the
forthwith, the injunction shall be granted or restored, as the case may be. (8a) 72 hour period until the application for preliminary injunction can be heard.

- Party filing a bond shall serve a copy of such bond on the other party, who may 2)
Complaint + PI + TRO
except to the sufficiency of the bond, or of the surety or sureties thereon Pay docket fees
- If the applicant’s bond is found to be insufficient in amount, or if the surety or
sureties thereon fail to justify, and a sufficient bond/sureties is not filed therewith,
the injunction shall be DISSOLVED
- If the bond of the ADVERSE PARTY is found to be insufficient in amount, or the
surety/sureties fail to justify a bond sufficient in amount w/sufficient sureties Exec judge will issue notice, complaint & raffle
approved after justification is not filed forthwith, the injunction shall be GRANTED (also applies to single-sala)
OR RESTORED, as the case may be

Section 8. Judgment to include damages against party and sureties. — At the trial,
the amount of damages to be awarded to either party, upon the bond of the adverse
party, shall be claimed, ascertained, and awarded under the same procedure
prescribed in section 20 of Rule 57. (9a)
- Same as preliminary attachment
- Recovery of damages for IRREGULAR issuance of injunction, where the main case
is dismissed and the injunction is dissolved is limited to the amount of the bond
Section 9. When final injunction granted. — If after the trial of the action it appears
that the applicant is entitled to have the act or acts complained of permanently
enjoined the court shall grant a final injunction perpetually restraining the party or
person enjoined from the commission or continuance of the act or acts of confirming
the preliminary mandatory injunction. (10a)
- If AFTER THE TRIAL of the ACTION it appears that the applicant is entitled to have
the act/s permanently enjoined
SAMPLE SCENARIOS:
1)
Complaint w/preliminary orders or the TRO.
injunction
+ RULE 59: RECEIVERSHIP
Assigned
SAMPLING OF EVIDENCE
- Sufficient for TRO
Notice that summary hearing will be
conducted (affidavits and hearing papers)
VELASCO v. CA, FIRMWOOD DEV’T CORP & STA. CLARA HOUSING INC.
It is a basic procedural postulate that a preliminary injunction which necessarily
includes a temporary restraining order should never be used to transfer the
possession or control of a thing to a party who did not have such possession or
control at the inception of the case.
The temporary restraining order issued by this Court merely restrained respondent
STA. CLARA and all its agents and representatives from withdrawing and disposing
of the plywood inventory in STA. CLARA's plant or warehouse until further orders
from this Court. Remedy is contempt proceedings for a violation of the injunction

NOTE: This is the only Provisional Remedy you can apply for even after judgment.
TRO = 20 DAYS (RTC/MTC) SUMMARY HEARINGS - Partner provision in Rule 39
Cannot be extended or - To be able to get a
renewed preliminary injunction Section 1. Appointment of receiver. — Upon a verified application, one or more
= 60 DAYS (CA) - Rule 57, 58 & 65 receivers of the property subject of the action or proceeding may be appointed by
= UNTIL LIFTED (SC) o Judge granting PI the court where the action is pending or by the Court of Appeals or by the Supreme
should resolve the Court, or a member thereof, in the following cases:
- As long as the action is case w/in 6 mos (a) When it appears from the verified application, and such other proof as the court
pending may require, that the party applying for the appointment of a receiver has an
interest in the property or fund which is the subject of the action or proceeding, and
PI/TRO cannot issue w/o notice and hearing that such property or fund is in danger of being lost, removed, or materially injured
- But: An ordinary judge can now issue ex parte a TRO w/o notice an hearing if the unless a receiver be appointed to administer and preserve it;
matter is of extreme urgency and the applicant will suffer grave injustice and (b) When it appears in an action by the mortgagee for the foreclosure of a mortgage
irreparable injury (effective only for 72 hours) that the property is in danger of being wasted or dissipated or materially injured,

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and that its value is probably insufficient to discharge the mortgage debt, or that the
parties have so stipulated in the contract of mortgage;
(c) After judgment, to preserve the property during the pendency of an appeal, or to
dispose of it according to the judgment, or to aid execution when the execution has
been returned unsatisfied or the judgment obligor 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. (1a)
RECEIVER: person appointed by court in behalf of the parties to an action.
Receivership: may be principal action OR ancillary remedy; may be resorted to
during pendency of appeal or even after judgment has become final and executory.
NOTE: The appointment of a receiver during the pendency of an action is
interlocutory in nature and cannot be compelled by mandamus. BUT certiorari will lie
in case there is grave abuse of discretion. (Samson vs. Barrios)
Upon verified application, one or more receivers of property may be appointed by
court in the following cases:
1. Applicant has an interest in property/fund subject of case and such
property is in danger of being lost, removed or materially injured
2. In foreclosure of mortgage, when property s in danger of being dissipated
or materially injured ( value is insufficient to discharge mortgage debt or it
has been agreed upon by parties
3. To preserve property during pendency of appeal/ to dispose according to
judgment or aid execution
4. When appointment of receiver is most convenient and feasible means of
preserving or disposing property in litigation
Purpose: for preservation of property involved and protection of rights of parties.
AND as an aid to execution (if after finality of judgment, §41 of Rule 39 applies)
Subject Matter: BOTH Personal and Real property
Pending Appeal: the appellate court may allow an application ffor the appointment
of a receiver FILED and DECIDED in the court of origin.
Section 2. Bond on appointment of receiver. — Before issuing the order appointing
a receiver the court shall require the applicant to file a bond executed to the party
against whom the application is presented, in an amount to be fixed by the court, to
the effect that the applicant will pay such party all damages he may sustain by
reason of the appointment of such receiver in case the applicant shall have procured
such appointment without sufficient cause; and the court may, in its discretion, at
any time after the appointment, require an additional bond as further security for
such damages. (3a)
-Before issuing appointment of receiver-> Applicant’s Bond court shall require
applicant to file bond in an amount fixed by court
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Effect of bond: applicant will pay such party all damages that he may sustain by
reason of the appointment in case it is found that there is no sufficient cause in
procuring appointment
-Court in its own discretion (any time after appointment) require additional bond as
further security
Section 3. Denial of application or discharge of receiver. — The application may be
denied, or the receiver discharged, when the adverse party files a bond executed to
the applicant, in an amount to be fixed by the court, to the effect that such party
will pay the applicant all damages he may suffer by reason of the acts, omissions, or
other matters specified in the application as ground for such appointment. The
receiver may also be discharged if it is shown that his appointment was obtained
without sufficient cause. (4a)
Denial: when adverse party files bond executed to applicant in amount fixed by
court-> such party will pay applicant all damages he may suffer by reason of action
or matters specified in application
Discharge: shown that appointment was obtained without sufficient cause
Section 4. Oath and bond of receiver. — Before entering upon his duties, the
receiver shall be sworn to perform them faithfully, and shall file a bond, executed to
such person and in such sum as the court may direct, to the effect that he will
faithfully discharge his duties in the action or proceeding and obey the orders of the
court. (5a)
-Before entering upon duties
-Receiver sworn to perform duties faithfully
Receiver’s Bond -Receiver shall file bond as fixed by court to show that he will
faithfully discharge his duties in action and obey orders of court
Section 5. Service of copies of bonds; effect of disapproval of same. — The person
filing a bond in accordance with the provisions of this Rule shall forthwith serve a
copy thereof on each interested party, who may except to its sufficiency or of the
surety or sureties thereon. If either the applicant's or the receiver's bond is found to
be insufficient in amount, or if the surety or sureties thereon fail to justify, and a
bond sufficient in amount with sufficient sureties approved after justification is not
filed forthwith, the application shall be denied or the receiver discharged, as the
case may be. If the bond of the adverse party is found to be insufficient in amount
or the surety or sureties thereon fail to justify, and a bond sufficient in amount with
sufficient sureties approved after justification is not filed forthwith, the receiver shall
be appointed or re-appointed, as the case may be. (6a)
-Person filing a bond shall serve a copy to each interested party
-If applicant or receiver’s bond is insufficient OR if surety’s bond fails to justify and
bond which is sufficient is not filed-> application shall be denied OR receiver may be
discharged
-If bond of adverse party is insufficient OR surety’s bond fails to justify and bond
sufficient in amount and sufficient sureties not filed-> receiver shall be appointed or
re-appointed
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Section 6. General powers of receiver. — Subject to the control of the court in
which the action or proceeding is pending a receiver shall have the power to bring
and defend, in such capacity, actions in his own name; to take and keep possession
of the property in controversy; to receive rents; to collect debts due to himself as
receiver or to the fund, property, estate, person, or corporation of which he is the
receiver; to compound for and compromise the same; to make transfers; to pay
outstanding debts; to divide the money and other property that shall remain among
the persons legally entitled to receive the same; and generally to do such acts
respecting the property as the court may authorize. However, funds in the hands of
a receiver may be invested only by order of the court upon the written consent of all
the parties to the action. (7a)
No action may be filed by or against a receiver without leave of the court which
appointed him. (n)
other property in his possession to the person adjudged to be entitled to receive
them and order the discharge of the receiver from further duty as such. The court
shall allow the receiver such reasonable compensation as the circumstances of the
case warrant, to be taxed as costs against the defeated party, or apportioned, as
justice requires. (8a)
Denial of Application/Discharge of Receiver:
1. when the adverse party files a sufficient counterbond
2. When applican’t bond is insufficient
3. When Receiver’s Bond insufficient
4. If the appointment of the receiver was obtained without sufficient cause
5. Upon the determination ofa court htat the necessity ofa receiver no longer
exists.

GENERAL POWERS OF THE RECEIVER: -Court motu proprio OR on motion of either party-> determine necessity of receiver;
1. Bring and defend in such capacity actions in his own name with due notice and hearing->
2. Take and keep possession of property in controversy ¬ settle accounts of receiver
3. Receive rents ¬ direct delivery of funds and property person entitled
4. collect debts due to himself as receiver or to fund of which he is the ¬ order discharge of receiver
receiver -Court shall allow receiver to such reasonable compensation
5. Compound for and compromise the same
6. Make transfers Section 9. Judgment to include recovery against sureties. — The amount, if any, to
7. Pay outstanding debts be awarded to any party upon any bond filed in accordance with the provisions of
8. Divide money and other property that shall remain among persons legally this Rule, shall be claimed, ascertained, and granted under the same procedure
entitled to receive the same prescribed in section 20 of Rule 57. (9a)
9. To do such acts respecting property as court may authorize
10. Invest funds in his hands (only upon order of court or written consent of all -Amount awarded to party upon any bond-> claimed, ascertained and granted
parties) under procedure in R57, S20

Limits: Additional Notes:

1. Funds in the hands of thereceiver may only be invested upon order of the Receivership and Liquidation under the New Central Bank Act
court or written consent of all the parties. Levels of Rehabilitation
2. No action may be filed by him without leave of court. 1. Conservatorship
2. RECEIVERSHIP
Section 7. Liability for refusal or neglect to deliver property to receiver. — A person 3. Liquidation
who refuses or neglects, upon reasonable demand, to deliver to the receiver all the
property, money, books, deeds, notes, bills, documents and papers within his power When? The Monetary Board finds out that a bank/quasi-bank is:
or control, subject of or involved in the action or proceeding, or in case of 1. Unable to pay its liabilities as they become due in the ordinary course of
disagreement, as determined and ordered by the court, may be punished for business (excluding extraordinary demands induced by financial panic in
contempt and shall be liable to the receiver for the money or the value of the the banking industry)
property and other things so refused or neglected to be surrendered, together with 2. Insufficient realizable assets (determined by BSP) to meet it’s liabilites
all damages that may have been sustained by the party or parties entitled thereto 3. Cannot continue business woithout involving probable losses to
as a consequence of such refusal or neglect. (n) depositors/creditors
4. Willful violation of a FINAL cease and desist order, involving acts or
-If a person refuses or neglects to deliver property subject of action and within his transactions which amount to FRAUD/dissipation of the assets.
control-> to the receiver.
- He may be punished for contempt and shall be held liable liable t for money or
value of property plus damages sustained by refusal or neglect. RULE 60- REPLEVIN

Section 8. Termination of receivership; compensation of receiver. — Whenever the - May be a main action or a provisional remedy. As a principal action, its ultimate
court, motu proprio or on motion of either party, shall determine that the necessity goal is to recover personal property capable of manual delivery wrongfully
for a receiver no longer exists, it shall, after due notice to all interested parties and detained by a person.
hearing, settle the accounts of the receiver, direct the delivery of the funds and o Generally determines nothing more than the right to possession

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- Seeking to have possession of the property prior to the determination of the otherwise placed under custodia legis, or if so seized, that it is exempt from such
action is the PROVISIONAL REMEDY of replevin. The principal remedy in this case seizure or custody; and
is for recovery of possession. (d) The actual market value of the property.
The applicant must also give a bond, executed to the adverse party in double the
Section 1. Application. — A party praying for the recovery of possession of personal value of the property as stated in the affidavit aforementioned, for the return of the
property may, at the commencement of the action or at any time before answer, property to the adverse party if such return be adjudged, and for the payment to
apply for an order for the delivery of such property to him, in the manner the adverse party of such sum as he may recover from the applicant in the action.
hereinafter provided. (1a) (2a)

A party must file for an application for a writ of replevin anytime before an answer The affidavit must show that:
o Ex. Motor vehicle o The applicant is the owner/lawful possessor of the property
o Cannot file for a writ of replevin if answer is already filed o that the property is wrongfully detained by an adverse party, alleging therein
§ Remedy: attachment the cause of detention
o That the property has not been distrained or taken for tax assessment or a fine
Use and Purpose: to recover possession of personal property. pursuant to law, or seized under a writ of execution or preliminary attachment,
or otherwise placed in custodia legis. If seized, affidavit must state that it is
Application must contain an affidavit where the applicant: exempt from such seizure or custody
o Particularly describes the property that he is the owner, OR § Concept of replevin is unlawful deprivation, but in these instances, there is
o That he is entitled to the possession thereof lawful deprivation
- Applicant need not be the owner, it is enough that he has a right to the property o State the actual market value of the property
- No replevin before the appellate courts - Applicant must give a bond executed to the adverse party [the only provrem
where the bond is DOUBLE the value of the property]
WRIT OF REPLEVIN ATTACHMENT o Bond is payment to the adverse party of such sum as he may recover from the
Action for the recovery of real and personal property applicant in the action
personal property
Principal relief sought is the Recovery may be merely an Section 3. Order. — Upon the filing of such affidavit and approval of the bond, the
recovery of possession (other incidental relief. court shall issue an order and the corresponding writ of replevin, describing the
relief merely incidental thereto) personal property alleged to be wrongfully detained and requiring the sheriff
Available ONLY when the May be resorted to even if the forthwith to take such property into his custody. (3a)
defendant is in property is in the custody of a
actual/constructive possession 3rd person. - When the court approves the application, the court shall issue an order and the
of the personal property corresponding writ of replevin describing the property alleged to be wrongfully
Gives you certainty of Gives you no certainty you will detained
recovering possession (Sheriff recover, but only a certain level - This order shall require the sheriff to take the property into his custody
takes possession of the of security (propoerty will
property and delivers it to the remain in custody of the court Section 4. Duty of the sheriff. — Upon receiving such order, the sheriff must serve
applicant) or the title will be annotated). a copy thereof on the adverse party, together with a copy of the application,
Recovery possible even without Presupposes that property affidavit and bond, and must forthwith take the property, if it be in the possession of
the property being in danger of being recovered is concealed the adverse party, or his agent, and retain it in his custody. If the property or any
concealment, removal or removed or about to be part thereof be concealed in a building or enclosure, the sheriff must demand its
disposal. disposed of. delivery, and if it be not delivered, he must cause the building or enclosure to be
Cannot be availed if the Attachemnt may be used with broken open and take the property into his possession. After the sheriff has take
property is in custodia legis property in custodia legis. possession of the property as herein provided, he must keep it in a secure place and
shall be responsible for its delivery to the party entitled thereto upon receiving his
Section 2. Affidavit and bond. — The applicant must show by his own affidavit or fees and necessary expenses for taking and keeping the same. (4a)
that of some other person who personally knows the facts:
(a) That the applicant is the owner of the property claimed, particularly describing it, - Upon receipt of the court order, the sheriff must:
or is entitled to the possession thereof; a) Serve a copy of the order on the adverse party, together w/a copy of the
(b) That the property is wrongfully detained by the adverse party, alleging the cause application, affidavit and bond; and
of detention thereof according to the best of his knowledge, information, and belief ; b) Take custody of the property
(c) That the property has not been distrained or taken for a tax assessment or a fine - He must then keep the property in a safe place
pursuant to law, or seized under a writ of execution or preliminary attachment, or

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- W/in 5 days from the taking of the property, the sheriff shall wait for the move of
the adverse party and if:
a) the latter does not object to the sufficiency of the bond after said period or
b) performs acts to effect the return to him of the property taken by the sheriff,
The property shall be delivered to the APPLICANT.
Section 5. Return of property. — If the adverse party objects to the sufficiency of
the applicant's bond, or of the surety or sureties thereon, he cannot immediately
require the return of the property, but if he does not so object, he may, at any time
before the delivery of the property to the applicant, require the return thereof, by
filing with the court where the action is pending a bond executed to the applicant, in
double the value of the property as stated in the applicant's affidavit for the delivery
thereof to the applicant, if such delivery be adjudged, and for the payment of such
sum, to him as may be recovered against the adverse party, and by serving a copy
of such bond on the applicant. (5a)
- if w/in 5 days from the taking of the property by the sheriff, the adverse party
decides to have the property back, he may require the return thereof by:
a) filing w/the court where the action is pending a REDELIVERY BOND, in double
the value of the property, and
b) by serving a copy of such bond on the applicant
- if the bond is sufficient and in the proper form, the adverse party gets the
property back.
HOW TO DISSOLVE - To get possession immediately:
1) post a counter-bond AND
2) do not question the insufficiency of the bond
Q: Can property subject ofa criminal case be the subject of Replevin? NO.
Because the property would be in custodia legis (Superlines Transpo vs. PNCC
2007).
Q: Can goods under the custody of an agency of the bureau of Forestry be
subject to replevin? NO.
Section 6. Disposition of property by sheriff. — If within five (5) days after the
taking of the property by the sheriff, the adverse party does not object to the
sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party
so objects and the court affirms its approval of the applicant's bond or approves a
new bond, or if the adverse party requires the return of the property but his bond is
objected to and found insufficient and he does not forthwith file an approved bond,
the property shall be delivered to the applicant. If for any reason the property is not
delivered to the applicant, the sheriff must return it to the adverse party. (6a)
- If w/in 5 days and the adverse party failed to object or his redelivery bond is
insufficient, the sheriff shall deliver the property to the applicant
- to be awarded to any party upon any bond filed in accordance with the provisions of
Section 7. Proceedings where property claimed by third person. — If the property
taken is claimed by any person other than the party against whom the writ of
replevin had been issued or his agent, and such person makes an affidavit of his
title thereto, or right to the possession thereof, stating the grounds therefor, and
serves such affidavit upon the sheriff while the latter has possession of the property
and a copy thereof upon the applicant, the sheriff shall not be bound to keep the
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property under replevin or deliver it to the applicant unless the applicant or his
agent, on demand of said sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the property
under replevin as provided in section 2 hereof. In case of disagreement as to such
value, the court shall determine the same. No claim for damages for the taking or
keeping, of the property may be enforced against the bond unless the action
therefor is filed within one hundred twenty (120) days from the date of the filing of
the bond.
The sheriff shall not be liable for damages, for the taking or keeping of such
property, to any such third-party claimant if such bond shall be filed. Nothing herein
contained shall prevent such claimant or any third person from vindicating his claim
to the property, or prevent the applicant from claiming damages against a third-
party claimant who filed a frivolous or plainly spurious claim, in the same or a
separate action.
When the writ of replevin is issued in favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond shall not be required, and in case
the sheriff is sued for damages as a result of the replevin, he shall be represented
by the Solicitor General, and if held liable therefor, the actual damages adjudged by
the court shall be paid by the National Treasurer out of the funds to be appropriated
for the purpose. (7a)
- Similar to 3rd party claims in execution and attachment
- But the affidavit is served w/in the 5 days the sheriff has possession, in
connection w/sec. 6
Section 8. Return of papers. — The sheriff must file the order, with his proceedings
indorsed, thereon, with the court within ten (10) days after taking the property
mentioned therein. (8a)
- Sheriff must file the order w/his proceeding indorsed thereon w/the court w/in 10
days after taking the property
Section 9. Judgment. — After trial of the issues the court shall determine who has
the right of possession to and the value of the property and shall render judgment in
the alternative for the delivery thereof to the party entitled to the same, or for its
value in case delivery cannot be made, and also for such damages as either party
may prove, with costs. (9a)
- After trial of the issues, court shall determine:
a) Who has the right of possession and
b) The value of the property
- The court shall render judgment in the alternative for the delivery thereof to the
party entitled or for its value in case delivery cannot be made and also for
damages and costs either party may prove
Section 10. Judgment to include recovery against sureties. — The amount, if any,
this Rule, shall be claimed, ascertained, and granted under the same procedure as
prescribed in section 20 of Rule 57. (10a)
- The amount to be awarded to any party upon any bond filed shall be claimed,
ascertained and granted similar to Rule 57, sec.20.
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Sebastian vs. Balino When the writ is issued in favor of the Republic or any officer
duly representing it, the filing of a bond shall not be required. In case the sheriff is
sued for damages as a result of the replevin, he shall be represented by the SolGen,
and if held liable, actual damges shall be paid by the National Treasurer.
Serg’s Products Inc. vs. PCI Leasing and Finance The parties may agree to
consider real property as personal property, which may be subject to a writ of
replevin.
RULE 61: SUPPORT PENDENTE LITE
Section 1. Application. — At the commencement of the proper action or proceeding,
or at any time prior to the judgment or final order, a verified application for support
pendente lite may be filed by any party stating the grounds for the claim and the
financial conditions of both parties, and accompanied by affidavits, depositions or
other authentic documents in support thereof. (1a)
SUPPORT PENDENTE LITE: amount of support provisionally fixed by court in favour
of persons entitled thereto during pendency of an action for support.
- A provisional remedy rendered by the court as equity and justice may
require. This is the ONLY provisional remedy which does NOT require a
bond.
- Mere affidavits may satisfy the court to pass upon the application for
support pendente lite. (Fundamentals of Support Pendente Lite 117 SCRA
929)
GEN. RULE: filed in family court, exclusively!
EXCEPT: where right to support raises by reason of crime, RTC & MTC having
jurisdiction over case may issue this remedy
WHEN filed: at commencement of action or at any time before judgment
After final judgment in the lower court, or during the pendency of the appeal, no
application for alimony pendente lite may be allowed, for plaintiff has either a more
adequate remedy or no right to any remedy at all. (Benedicto vs. Rama, 2 Phil. 293)
PROPER ACTION- referred to in the rule is an action for support. Spousal or child
support may likewise be granted in cases for declaration of absolute nullity of void
arriage or for annulment of voidable marriage or legal separation, as well as in
criminal cases.
Section 2. Comment. — A copy of the application and all supporting documents
shall be served upon the adverse party, who shall have five (5) days to comment
thereon unless a different period is fixed by the court upon his motion. The
comment shall be verified and shall be accompanied by affidavits, depositions or
other authentic documents in support thereof. (2a, 3a)
application for support pendente lite, stating:
a. The grounds for the claim and
b. The financial conditions of both parties and
c. Supporting the same with affidavits, depositions or other auth. docs.
-Copy of application & all supporting documents-> served upon adverse party
-Adverse party has 5D (or other period if court orders) to comment
-Comment shall be verified and accompanied by: affidavits, depositions or other
authentic documents.
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Section 3. Hearing. — After the comment is filed, or after the expiration of the
period for its filing, the application shall be set for hearing not more than three (3)
days thereafter. The facts in issue shall be proved in the same manner as is
provided for evidence on motions. (4a)
After the answer is received by the court or after the expiration of the time for filing
an answer, a day will be set for the hearing of the application not more than three
(3) days thereafter whereby the defendant is afforded the opportunity to prove his
defense.
On DNA Evidence:
If it says you are NOT the father – CONCLUSIVE
If below 99.9% - merely corroborative
99.9% and above – Disputable presumption of paternity
(Sec. 9 (c) of A.M. No. 06-11-5-SC on Rule on DNA Evidence)
NOTE: Under the law the fact that a right to be supported is recognized in favor of
the person to be supported does not automatically entitle him to receive support,
The obligation to give support shall be demandable from the time the person who
has a right to receive the same demands it extrajudicially for maintenance and
support. Support can be demanded by reason of imperative necessity and the law
presumes that such necessity does not exist unless support is demanded.
Section 4. Order. — The court shall determine provisionally the pertinent facts, and
shall render such orders as justice and equity may require, having the regard to the
probable outcome of the case and such other circumstances as may aid in the
proper resolution of the question involved. If the application is granted, the court
shall fix the amount of money to be provisionally paid or such other forms of
support as should be provided, taking into account the necessities of the applicant
and the resources or means of the adverse party, and the terms of payment or
mode for providing the support. If the application is denied, the principal case shall
be tried and decided as early as possible. (5a)
After having determined provisionally the facts, the judge of the court where the
principal action for support is pending shall issue such order as equity and justice
may require. In this regard, the judge shall give due regard to:
- The necessities of the applicant,
- The means of the adverse party,
- The probable outcome of the principal case, and
- Such other circumstances as may aid him in the proper elucidation of the
question to be resolved.
If the application is granted, the judge shall fix the amount of money to be
provisionally paid and the terms of payment thereof. On the other hand, if the
application is denied, the judge shall schedule the trial of the principal case on the
merits as early as possible.
- If the application is granted, the order is immediately executory.
NOTE: It lies within the discretion of the trial court to direct the father to give
support pending the appeal. But, if the appeal is already perfected, the trial court
loses jurisdiction to order execution of judgment for support.
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Appellate Court- May grant alimony pendent lite even if the trial court refused to
grant the same.
Section 5. Enforcement of order. — If the adverse party fails to comply with an
order granting support pendente lite, the court shall, motu proprio or upon motion;
issue an order of execution against him, without prejudice to his liability for
contempt. (6a)
When the person ordered to give support pendente lite refuses or fails to do so, any
third person who furnished that support to the applicant may, after due notice and
hearing in the same case obtain a writ of execution to enforce his right of
reimbursement against the person ordered to provide such support. (h)
It has been held that disobedience to an order granting support pendente lite
constitutes contempt of court. However, before he is punished for contempt, the
defendant who fails to comply with the court order must show cause why he should
not be punished for contempt.
Should the defendant appear to have means to pay support and refuse to pay, then
either;
a. an order of execution may be issued or
b. a penalty for contempt may be imposed or
c. both execution and contempt may be ordered.
The enforcement order shall depend on the exercise of judicial discretion on how
defendant justifies his failure to comply with the court order.
NOTE: There are only 2 instances where Execution can be issued prior to Final
Judgment; in Support Pendente Lite and Indigent Litigants
Right of Recovery of Third Party - Any third person who furnished that support
to the applicant may, after due notice and hearing in the same case obtain a writ of
execution to enforce his right of reimbursement against the person ordered to
provide such support.
Section 6. Support in criminal cases. — In criminal actions where the civil liability
includes support for the offspring as a consequence of the crime and the civil aspect
thereof has not been waived, reserved and instituted prior to its filing, the accused
may be ordered to provide support pendente lite to the child born to the offended
party allegedly because of the crime. The application therefor may be filed
successively by the offended party, her parents, grandparents or guardian and the
State in the corresponding criminal case during its pendency, in accordance with the
procedure established under this Rule. (n)
-Civil liability in criminal case includes support for offspring-> accused may be
ordered to provide support pendente lite because of crime
-Application may be filed successively by:
a. Offended party
b. Parents
c. Grandparents or guardian
d. State
Defenses:
1. Denial of Paternity
2. Non-existence of Marriage
3. Death of Recipient
4. Improper conduct of the person seeking support (i.e. adultery)
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Section 7. Restitution. — When the judgment or final order of the court finds that
the person who has been providing support pendente lite is not liable therefor, it
shall order the recipient thereof to return to the former the amounts already paid
with legal interest from the dates of actual payment, without prejudice to the right
of the recipient to obtain reimbursement in a separate action from the person legally
obliged to give the support. Should the recipient fail to reimburse said amounts, the
person who provided the same may likewise seek reimbursement thereof in a
separate action from the person legally obliged to give such support. (n)
-If court upon judgment finds that person receiving support pendent lite is not
entitled-> recipient ordered to return amounts paid with legal interest from date of
actual payment; without prejudice to recipient to obtain reimbursement in a
separate action from person legally obliged to give support
-If recipient fails to reimburse-> person who provided same may seek
reimbursement in a separate action from person legally obliged to give such support
The order, whether denying or granting the support pendente lite, is interlocutory
and consequently not appealable. However, if an appeal is taken, and no objection is
interposed hereto, it has been held that the appeal shall be entertained as the
objection is deemed waived.
As it is non-appealable, the remedy therefore is an original action for certiorari
to annul the order of denial.
Additional Notes:
Factors in Determining Support - The following Rules were laid down in A.M. No.
02-11-12-SC (March 4, 2003)
Section 2. Spousal Support. - In determining support for the spouses, the court
may be guided by the following rules:
(a) In the absence of adequate provisions in a written agreement between the
spouses, the spouses may be supported from the properties of the absolute
community or the conjugal partnership.
(b) The court may award support to either spouse in such amount and for such
period of time as the court may deem just and reasonable based on their standard
of living during the marriage.
(c) The court may likewise consider the following factors: (1) whether the spouse
seeking support is the custodian of a child whose circumstances make it appropriate
for that spouse not to seek outside employment; (2) the time necessary to acquire
sufficient education and training to enable the spouse seeking support to find
appropriate employment, and that spouse's future earning capacity; (3) the-
duration of the marriage; (4) the comparative financial resources of the spouses,
including their comparative earning abilities in the labor market; (5) the needs and
obligations of each spouse; (6) the contribution of each spouse to the marriage,
including services rendered in home-making, child care, education, and career
building of the other spouse; (7) the age and health of the spouses; (8) the physical
and emotional conditions of the spouses; (9) the ability of the supporting spouse to
give support, taking into account that spouse's earning capacity, earned and
unearned income, assets, and standard of living; and (10) any other factor the court
may deem just and equitable.
(d) The Family Court may direct the deduction of the provisional support from the
salary of the spouse.
Section 3. Child Support. - The common children of the spouses shall be
supported from the properties of the absolute community or the conjugal
partnership.
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Subject to the sound discretion of the court, either parent or both may be
ordered to give an amount necessary for the support, maintenance, and education
of the child. It shall be in proportion to the resources or means of the giver and to
the necessities of the recipient.
In determining the amount of provisional support, the court may likewise
consider the following factors: (1) the financial resources of the custodial and non-
custodial parent and those of the child; (2) the physical and emotional health of the
child and his or her special needs and aptitudes; (3) the standard of living the child
has been accustomed to; (4) the non-monetary contributions that the parents will
make toward the care and well-being of the child.
The Family Court may direct the deduction of the provisional support from the salary
of the parent.
SPECIAL CIVIL ACTIONS
- Governed by special rules, if the special rules are inadequate, apply the ordinary
rules oc CivPro suppletorily (i.e. see Rule 46 § 3 on the required contents of a
petition applies suppletorily to Rule 63, 64, 65, 66 and 71)
Actions initiated by Petition:
1. Declaratory relief and other similar remedies;
2. Review of adjudications of COMELEC and COA;
3. Certiorari, prohibition and mandamus;
4. Quo warranto; and
5. Contempt
Actions initiated by a complaint:
1. Interpleader;
2. Expropriation;
3. Foreclosure of real estate mortgage;
4. Forcible entry and unlawful detainer,
Rule 46, sec. 3
Contents and filing of petition; effect of noncompliance with requirements
• The petition shall contain the full names and actual addresses of all the
petitioners and respondents, a concise statement of the matters involved,
the factual background of the case, and the grounds relied upon for the relief
prayed for.
• In actions filed under Rule 65, the petition shall further indicate the material
dates showing when notice of the judgment or final order or resolution
subject thereof was received, when a motion for new trial or reconsideration,
if any, was filed and when notice of the denial thereof was received.
• It shall be filed in 7 clearly legible copies together with proof of service
thereof on the respondent with the original copy intended for the court
indicated as such by the petitioner, and shall be accompanied by a clearly
legible duplicate original or certified true copy of the judgment, order,
resolution, or ruling subject thereof, such material portions of the record as
are referred to therein, and other documents relevant or pertinent thereto.
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The certification shall be accomplished by the proper clerk of court or by his
duly authorized representative, or by the proper officer of the court, tribunal,
agency or office involved or by his duly authorized representative. The other
requisite number of copies of the petition shall be accompanied by clearly
legible plain copies of all documents attached to the original.
• Certificate against forum shopping
• The petitioner shall pay the corresponding docket and other lawful fees to the
clerk of court and deposit the amount of P500.00 for costs at the time of the
filing of the petition.
• The failure of the petitioner to comply any of the requirements shall be
sufficient ground for the dismissal of the petition.
Rule 62- INTERPLEADER
Section 1. When interpleader proper. — Whenever conflicting claims upon the same
subject matter are or may be made against a person who claims no interest
whatever in the subject matter, or an interest which in whole or in part is not
disputed by the claimants, he may bring an action against the conflicting claimants
to compel them to interplead and litigate their several claims among themselves.
(1a, R63)
Requisites:
1) 2 or more claimants w/adverse of conflicting interests to a property in the
custody or possession of the plaintiff;
2) The plaintiff in an action for interpleader has no claim upon the subject
matter of the adverse claims or if he has an interest at all, such interest is
not disputed by the claimants;
3) The subject matter is of the adverse claims must be one and the same.
- Ex. Mr. X entrusted a piece of land to Mr. Dela Pasion to deliver to his only
daughter Maria when he dies. X died, and another lady comes forward saying she
is the daughter of Mr. X, asking that the land be given to her.
If Dela Pasion doesn’t want to make a choice, he can file an action for
interpleader and ask the court to determine rights of the conflicting parties.
Ex. Insurance policy is claimed by 2 ladies, both claiming to be the legal spouse of
the decedent.
Purpose: To protect a person NOT against double liability, but against double
VEXATION in respect of one liability.
Q: Can there be a counterclaim in an action for interpleader? YES
- A complaint is filed by the person against whom the conflicting claims are made
- Petitioner shall also pay the docket and other lawful fees and shall bear the costs
and other litigation expenses. This will become a lien on the judgment award.
When filed: within a reasonable time after a dispute has arisen without waiting to
be sued by either of the contending claimants.
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- Where the allegations of the complaint do not show conflicting claims b/w or judgment shall be rendered barring him from any claim in respect to the subject
among the persons required to interplead, the complaint for interpleader will be matter of the action
dismissed on the ground of impropriety. - A reply to the answer may be filed by each of the conflicting claimants
- Parties may also file counterclaims, cross-claims, 3rd part complaints and
Section 2. Order. — Upon the filing of the complaint, the court shall issue an order responsive pleadings in accordance w/the rules governing ordinary civil actions.
requiring the conflicting claimants to interplead with one another. If the interests of
justice so require, the court may direct in such order that the subject matter be paid Section 6. Determination. — After the pleadings of the conflicting claimants have
or delivered to the court. (2a, R63) been filed, and pre-trial has been conducted in accordance with the Rules, the court
shall proceed to determine their respective rights and adjudicate their several
- Upon the filing of the complaint, the court shall issue requiring the conflicting claims. (5a, R63)
claimants to interplead w/one another
- The court may also include an order directing that the subject matter of the action - A pre-trial shall be conducted
be paid or delivered to the court if the interest of justice so requires. - After the pleadings shall have been filed, and the pre-trial conducted, the court
shall proceed to determine the rights and adjudicate their several claims
Section 3. Summons. — Summons shall be served upon the conflicting claimants,
together with a copy of the complaint and order. (3, R63) Section 7. Docket and other lawful fees, costs and litigation expenses as liens. —
The docket and other lawful fees paid by the party who filed a complaint under this
- The order shall be served upon the conflicting claimants together w/the summons Rule, as well as the costs and litigation expenses, shall constitute a lien or change
and the copy of the claimant upon the subject matter of the action, unless the court shall order otherwise. (6a,
R63)
Section 4. Motion to dismiss. — Within the time for filing an answer, each claimant
may file a motion to dismiss on the ground of impropriety of the interpleader action - The docket and other lawful fees plus the other litigation expenses paid by the
or on other appropriate grounds specified in Rule 16. The period to file the answer person who files the complaint shall constitute a lien or charge upon the subject
shall be tolled and if the motion is denied, the movant may file his answer within the matter of the action, unless the court shall order otherwise
remaining period, but which shall not be less than five (5) days in any event, - Recovery of such fees and expenses may be recovered later on
reckoned from notice of denial. (n)
INTERPLEADER INTERVENTION
- W/in the time for filing an answer, each claimant may file a motion to dismiss Special civil action, Not an original action but
o Ground may be any of the grounds for dismissal in Rule 16 and may also independent and original merely ancillary and depends
include impropriety upon the existence of a
previous pending action
- The period to file an answer is interrupted or tolled by the filing of a motion to Commenced by the filing of a Commenced by a motion to
dismiss. If denied, the movant has the remaining period to file his answer, but complaint intervene filed in a pending
w/c shall not be less than 5 days in any event, from the notice of denial of the case attaching there-to the
motion. peading-in-intervention
Filed by the person who has NO Filed by the person who has
Section 5. Answer and other pleadings. — Each claimant shall file his answer INTEREST in the subject matter LEGAL INTEREST in any of the
setting forth his claim within fifteen (15) days from service of the summons upon of the action or if he has no ff:
him, serving a copy thereof upon each of the other conflicting claimants who may interest, it is not disputed by 1) Subject matter
file their reply thereto as provided by these Rules. If any claimant fails to plead the claimants 2) Success of either of the
within the time herein fixed, the court may, on motion, declare him in default and parties
thereafter render judgment barring him from any claim in respect to the subject 3) Success of both parties
matter. 4) He may be adversely affected
The parties in an interpleader action may file counterclaims, cross-claims, third- by the judgment
party complaints and responsive pleadings thereto, as provided by these Rules. (4a, Defendants are brought into Defendants are already parties
R63) the action bec they are to an existing suit bec of the
impleaded as such original suit
- Answer shall be filed w/in 15 days from the service of summons upon him
- It shall set forth the claim of the claiming party and shall be served upon each of JURISDICTIONAL AMOUNTS:
the conflicting claimants MTC- personal property valued at not more than P300k (outside MM) and not more
- If any of the claimants fail to file his answer w/in the reglamentary period, the than P400k (in MM)
court may, upon motion, declare the non-answering claimant in default = RTC- real property w/an assessed value of not more than P20k (outside MM) and
not more than P50k (in MM)

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 P r o v i s i o n a l R e m e d i e s a n d S p e c i a l C i v i l A c t i o n s – A t t y . T r a n q u i l S a l v a d o r
RULE 63: DECLARATORY RELIEF AND SIMILAR REMEDIES
What may be covered:
1. Petition for Declaratory Relief (proper)
2. Action for Quieting Title to Real Property or to Remove Cloud therefrom
3. Action to Consolidate Ownership (Art. 1607)
Section 1. Who may file petition. — 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. (Bar Matter No. 803, 17 February
1998)
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. (1a, R64)
-Person interested under a deed, will, contract/other written instrument OR whose
rights are affected by statute, EO or regulation or ordinance or any other
governmental regulation
REQUISITES for declaratory relief
1. subject matter of controversy must be deed, will, contract/other written
instrument or statute, EO or regulation or ordinance or any other
governmental regulation
2. actual justiciable controversy between persons whose interests are
adverse
3. no breach of documents in question
4. terms of said documents and validity are doubtful and require judicial
construction
5. issue must be ripe for judicial determination
6. adequate relief not available through other means or other forms
Purpose: relieve litigants of common law rule that no declaration of rights may be
judicially adjudged
JUSTICIABILITY: court must be satisfied that an actual controversy exists between
parties and before the court and the declaration sought will be a help in ending
controversy
RIPE for judicial determination: must appear that there is threatened litigation in
immediate future, which litigation is imminent and inevitable
Section 2. Parties. — All persons who have or claim any interest which would be
affected by the declaration shall be made parties; and no declaration shall, except
as otherwise provided in these Rules, prejudice the rights of persons not parties to
the action. (2a, R64)
1. Person:
-interested under deed, will, contract or other written instrument
-whose rights will be affected by a statute, executive order or regulation,
ordinance or other government regulation
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2. All persons who have or claim interest which would be affected by
declaration
-Declaration shall not prejudice rights of persons not parties to action
-Non-joinder of necessary parties-> may be a ground for dismissal
Section 3. Notice on Solicitor General. — In any action which involves the validity
of a statute, executive order or regulation, or any other governmental regulation,
the Solicitor General shall be notified by the party assailing the same and shall be
entitled to be heard upon such question. (3a, R64)
-Action which involves validity of statute, EO or regulation or other governmental
regulation-> SolGen shall be notified by party assailing the same
Section 4. Local government ordinances. — In any action involving the validity of a
local government ordinance, the corresponding prosecutor or attorney of the local
governmental unit involved shall be similarly notified and entitled to be heard. If
such ordinance is alleged to be unconstitutional, the Solicitor General shall also be
notified and entitled to be heard. (4a, R64)
-Action concerning validity of local government ordinance-> notify corresponding
prosecutor of local government
-Action concerning unconstitutionality of local government ordinance-> notify
SolGen
Section 5. Court action discretionary. — Except in actions falling under the second
paragraph of section 1 of this Rule, the court, motu proprio or upon motion, may
refuse to exercise the power to declare rights and to construe instruments in any
case where a decision would not terminate the uncertainty or controversy which
gave rise to the action, or in any case where the declaration or construction is not
necessary and proper under the circumstances. (5a, R64)
Court has discretion to refuse grant of declaratory relief when:
1. Decision will NOT terminate controversy or uncertainty giving rise to action
2. Declaration or construction is NOT necessary and proper under
circumstances
Except: for actions falling under the second paragraph of Section 1 (Reformation,
Quieting/Removal of Cloud upon Title, Action to Consolidate Ownership)
Section 6. Conversion into ordinary action. — If before the final termination of the
case, a breach or violation of an instrument or a statute, executive order or
regulation, ordinance, or any other governmental regulation should take place, the
action may thereupon be converted into an ordinary action, and the parties shall be
allowed to file such pleadings as may be necessary or proper. (6a, R64)
When conversion is PROPER: If before final termination of case-> a breach of
violation of instrument or statute occurs
- The action may hereupon be converted into an ordinary action.
If breach is BEFORE filing of action: declaratory relief CANNOT be availed of
-Sufficient that there is breach of law
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When an action for declaratory relief will not lie:
1. Action to obtain judicial declaration of citizenship Section 1. Scope. — This Rule shall govern the review of judgments and final
2. Action to establish illegitimate filiation and actions to determine hereditary orders or resolutions of the Commission on Elections and the Commission on Audit.
rights (n)
3. Where terms of assailed ordinances are not ambiguous or doubtful
4. Object of actions is a court decision RULE 64 RULE 65
5. Action to resolve political question or issue
Petition for certiorari of FINAL Petition for certiorari
6. Those determinative of issues
orders, judgments or (can be used against
7. Contract or stature on which action is based has been breached
resolutions. interlocutory orders of
8. Action is merely to seek advisory opinion from court on a moot question
COA/COMELEC)
9. When petition based on happening of contingent event
Filed within 30 days Filed within 60 days
10. When petitioner is NOT real-party-in-interest
Non-extendible Non-extendible
11. Where administrative remedies have not yet been exhausted
JFOR of COA and COMELEC Directed against a tribunal,
WHERE to file: board or officer exercising
GEN. RULE: Petition for declaratory relief must be filed with RTC judicial or quasi-judicial
EXCEPT: If petition has far-reaching implications and it raises questions that should functions.
be resolved, it may be treated as one for prohibition or mandamus The filing of an MR or MnT (if MR/MnT tolls the running of the
allowed under COA/COMELEC prescriptive period… Be that as
Similar Remedies: rules) interrupts the period for it may, in any case (see below)
1. Removal of cloud – there should be what appears to be a true or filing the petition for certiorari.
apparent title. If DENIED, petitioner can still The period within which to file
a. There is an instrument, record, claim, encumbrance or file within the remaining a petition after denial of
proceeding that is apparently valid and effective period, which shall not be less MR/MnT is a new 60 days
b. Such instrument is, in truth and in fact invalid, ineffective, than 5 days in any case. (fresh 60-day period granted)
voidable or unenforceable, or has been extinguished/terminated,
or barred by extinctive prescription. Section 2. Mode of review. — A judgment or final order or resolution of the
Commission on Elections and the Commission on Audit may be brought by the
2. Action to Quiet Title – Remedy or proceeding for the purpose of aggrieved party to the Supreme Court on certiorari under Rule 65, except as
adjudicating that a claim of title to realty, adverse to the plaintiff is invalid, hereinafter provided. (n; Bar Matter No. 803, 17 February 1998)
inoperative or otherwise defective. - Brought by the aggrieved party to the SC on certiorari under Rule 65
a. The plaintiff or complainant has a legal or an equitable title to, or
interest in, the real property subject of the action. Section 3. Time to file petition. — The petition shall be filed within thirty (30) days
b. The deed, claim or proceeding claimed to be casting a cloud on from notice of the judgment or final order or resolution sought to be reviewed. The
the title must be shown to be, in fact, invalid or inoperative filing of a motion for new trial or reconsideration of said judgment or final order or
despite a prima facie apprearance of validity. resolution, if allowed under the procedural rules of the Commission concerned, shall
interrupt the period herein fixed. If the motion is denied, the aggrieved party may
3. To Consolidate Ownership – like in a pacto de retro sale (see Art. 1607) file the petition within the remaining period, but which shall not be less than five (5)
days in any event, reckoned from notice of denial. (n)
4. Reformation of instrument – the parties must agree on the original
intent of the instrument, and that there is a need for reformation.
- Petition for certiorari shall be filed w/in 30 DAYS from notice of the judgment,
a. There must have been a meeting of the minds of the parties to
final order or resolution of the COMELEC or COA sought to be reviewed
contract.
- If MNT or MR are allowed, the filing of either shall interrupt the period for the
b. The instrument does not express the true intent of the parties.
filing of the petition for ceriotrari
c. The failure of the instrument to express the true intent of the
o Motion denied: aggrieved party may file the petition w/in the remaining period,
parties is due to mistake, fraud, inequitable ocnduct or accident.
but not less than 5 days
o Interruption assumes that the MR or MNT is not pro forma = if pro forma,
period is not interrupted
RULE 64- REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUCTIONS
OF THE COMELEC AND THE COA
Section 4. Docket and other lawful fees. — Upon the filing of the petition, the
- Does not apply to the CSC, hence the decision cannot be brought by a petition on petitioner shall pay to the clerk of court the docket and other lawful fees and deposit
certiorari to the SC by by appeal through a verified petition for review to the CA the amount of P500.00 for costs. (n)
(Rule 43)

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- Upon filing of the petition, pay to the clerk of court:
1. Docket and other lawful fees
2. Deposit P500 for costs
Section 5. Form and contents of petition. — The petition shall be verified and filed
in eighteen (18) legible copies. The petition shall name the aggrieved party as
petitioner and shall join as respondents the Commission concerned and the person
or persons interested in sustaining the judgment, final order or resolution a quo.
The petition shall state the facts with certainty, present clearly the issues involved,
set forth the grounds and brief arguments relied upon for review, and pray for
judgment annulling or modifying the questioned judgment, final order or resolution.
Findings of fact of the Commission supported by substantial evidence shall be final
and non-reviewable.
The petition shall be accompanied by a clearly legible duplicate original or certified
true copy of the judgment, final order or resolution subject thereof, together with
certified true copies of such material portions of the record as are referred to therein
and other documents relevant and pertinent thereto. The requisite number of copies
of the petition shall contain plain copies of all documents attached to the original
copy of said petition.
The petition shall state the specific material dates showing that it was filed within
the period fixed herein, and shall contain a sworn certification against forum
shopping as provided in the third paragraph of section 3, Rule 46.
The petition shall further be accompanied by proof of service of a copy thereof on
the Commission concerned and on the adverse party, and of the timely payment of
docket and other lawful fees.
The failure of petitioner to comply with any of the foregoing requirements shall be
sufficient ground for the dismissal of the petition. (n)
- Cannot question the findings of fact of the commission involved where such
findings are supported by substantial evidence
Petition shall be:
1. Verified and filed in 18 copies
2. Accompanied by clearly legible duplicated original or certified true copy of the
judgment, final order or resolution, together w/certified true copies of such
material portions of the record and other docs relevant and pertinent ot he
petition
3. Name the aggrieved party as petitioner and join as respondent the commission
and all the persons interested in sustaining it
4. State the facts w/certainty, present clearly the issues involved, set forth the
grounds and brief arguments relied upon for review
5. State the specific material dates
6. Accompanied by proof of service of a copy on the commission involved and on
the adverse party and of the timely payment of docket and other lawful fees
7. Contain a sworn certificate against forum shopping
8. Pray for a judgment annulling or modifying the questioned judgment, final
order or resolution
- Failure to comply = DISMISSAL
Section 6. Order to comment. — If the Supreme Court finds the petition sufficient
in form and substance, it shall order the respondents to file their comments on the
petition within ten (10) days from notice thereof; otherwise, the Court may dismiss
the petition outright. The Court may also dismiss the petition if it was filed
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manifestly for delay or the questions raised are too unsubstantial to warrant further
proceedings. (n)
Court’s 2 options upon receipt of the petition:
a) Deny outright if:
1. Petition is not sufficient in form or substance
2. Petition is manifestly for delay; or
3. Question raised is too unsubstantial to warrant further proceedings
b) Order the filing of a comment
1. Within 10 days from notice if it finds the petition sufficient in form and
substance
Section 7. Comments of respondents. — The comments of the respondents shall be
filed in eighteen (18) legible copies. The original shall be accompanied by certified
true copies of such material portions of the record as are referred to therein
together with other supporting papers. The requisite number of copies of the
comments shall contain plain copies of all documents attached to the original and a
copy thereof shall be served on the petitioner.
No other pleading may be filed by any party unless required or allowed by the Court.
(n)
- Filed in 18 legible copies, w/the original accompanied by certified true copies of
the material portions of the records referred to together w/the supporting papers
- Copy served to petitioner
- No other pleading may be filed by any party UNLESS required or allowed by the
court
Section 8. Effect of filing. — The filing of a petition for certiorari shall not stay the
execution of the judgment or final order or resolution sought to be reviewed, unless
the Supreme Court shall direct otherwise upon such terms as it may deem just. (n)
FILING OF PETITION DOES NOT STAY EXECUTION
- The filing of the petition itself does not have the effect of staying the judgment,
final order or resolution of the COMELEC or COA unless the SC shall direct
otherwise
- To prevent the execution, Rule 65 may be availed of suppletorily and the
petitioner may obtain a TRO or a writ of preliminary injunction
Section 9. Submission for decision. — Unless the Court sets the case for oral
argument, or requires the parties to submit memoranda, the case shall be deemed
submitted for decision upon the filing of the comments on the petition, or of such
other pleadings or papers as may be required or allowed, or the expiration of the
period to do so. (n)
- Upon the filing of comments on the petition OR upon the expiration of the period
to do so, the case shall be deemed submitted for decision
o Except if the court decides to set the case for oral argument or requires the
parties to submit memoranda.
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RULE 65: CERTIORARI, PROHIBITION AND MANDAMUS calibration of the whole evidence - Does not involve any examination of
considering mainly the credibility of the probative value of the evidence
Section 1. Petition for certiorari. — When any tribunal, board or officer exercising witnesses, existence and relevancy of presented by the litigants.
judicial or quasi-judicial functions has acted without or in excess its or his specific surrounding circumstances, their
jurisdiction, or with grave abuse of discretion amounting to lack or excess of - Where the issue is the contraction or
relation to each other and to the whole
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in interpretation to be placed by the Court
the ordinary course of law, a person aggrieved thereby may file a verified petition in and probabilities of the situation.
of Appeals upon documentary evidence,
the proper court, alleging the facts with certainty and praying that judgment be
or where a case is submitted upon an
rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require. agreed statement of facts, or where all
The petition shall be accompanied by a certified true copy of the judgment, order or the facts are stated in the judgment,
resolution subject thereof, copies of all pleadings and documents relevant and and the issue is the correctness of the
pertinent thereto, and a sworn certification of non-forum shopping as provided in conclusion drawn therefrom, the
the third paragraph of section 3, Rule 46. (1a) question is one of law which may be
reviewed by the Supreme Court.
REQUISITES
1. There must be a controversy
2. Respondent is exercising judicial or quasi-judicial function Certiorari as a MODE OF APPEAL (Rule 45) vs. Certiorari as a SPECIAL CIVIL
3. Respondent action without or in excess of its jurisdiction or acted with GAD ACTION (Rule 65)
amounting to lack of jurisdiction
4. No appeal or other plain, speedy and adequate remedy MODE OF APPEAL (R. 45) SPECIAL CIVIL ACTION (R.
65)
Writ of CERTIORARI: writ emanating from superior court directed against an inferior
What may be Questions or errors of law The acts of the inferior court,
court, tribunal or officer exercising judicial/quasi-judicial functions.
reviewed decided or committed by the board or officer exercising
-Questions of fact CANNOT be raised in an original action for certiorari
lower court. judicial functions when it acted
-Not demandable as a matter of right
-MR is a pre-requisite! with GADALEJ. Errors
Except: committed by the inferior
1. When the order is a patent nullity court cannot be reviewed and
2. Where the questions raised in the petition have been duly raised and corrected.
passed upon in the lower court or are the same as those raised and passed
Parties Parties are the same The inferior court, board, or
upon by the lower court.
Involved officer is made respondent,
3. Where there is urgent necessity for the resolution of the question.
4. Where a motion for reconsideration would be useless. together with the persons
5. Where the petitioner has been deprived of due process interested in sustaining the
6. Where, in a criminal case, relief from an order of arrest ins urgent and the impugned proceeding.
granting of relief by the TC is improbable. Action by Appellate Court renders its Appellate court cannot reverse
7. Issue raised is one purely of law Higher Court own decision affirming, the inferior courts decision and
8. Where the public interest is involved reversing or modifying the
9. Where the proceedings in the lower court are a nullity for lack of due render a contrary one, but can
judgment, order or resolution.
process. only annul or modify the act
10. Where the proceeding was ex parte or wherein the petitioner had no complained of and all the
opportunity to be heard. proceedings flowing therefrom.
11. Where the subject matter of the action is perishable.
Section 2. Petition for prohibition. — When the proceedings of any tribunal,
NOTE: - If there are no questions of fact from the RTC, the proper remedy is a Rule
corporation, board, officer or person, whether exercising judicial, quasi-judicial or
45 petition straight to the SC.
ministerial functions, are without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no
Question of FACT Question of Law
appeal or any other plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper court,
When the doubt or difference arises When there is doubt or controversy
alleging the facts with certainty and praying that judgment be rendered
as to the truth or falsehood of facts, as to what the law is on a certain
commanding the respondent to desist from further proceedings in the action or
or when the query necessarily invites state of facts

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matter specified therein, or otherwise granting such incidental reliefs as law and REQUISITES:
justice may require. 1. There must a clear legal right or duty
The petition shall likewise be accompanied by a certified true copy of the judgment, 2. The act to be performed must be practical (within powers of respondent to
order or resolution subject thereof, copies of all pleadings and documents relevant perform)
and pertinent thereto, and a sworn certification of non-forum shopping as provided 3. Respondent must be exercising a ministerial duty
in the third paragraph of section 3, Rule 46. (2a) 4. Duty or act to be performed must be existing
5. No other plain, speedy and adequate remedy in the ordinary course of law-
REQUISITES prelim injunction must be sought
1. There must be a controversy
2. Respondent is exercising judicial, quasi-judicial or ministerial functions Writ of MANDAMUS: writ issued in the name of the State, to an inferior tribunal,
3. Respondent action without or in excess of its jurisdiction or acted with GAD corp, board or person, commanding the performance of an act w/c the law enjoins
amounting to lack of jurisdiction as a duty resulting from an office, trust or station
4. No appeal or other plain, speedy and adequate remedy GROUNDS
1. When any tribunal, corp., board, officer or person unlawfully neglects the
Writ of PROHIBITION: writ issued by superior court against an interior court, corp., performance of an act w/c law enjoins as a duty resulting from an office,
board, officer or other person whether exercising judicial, quasi-judicial or trust/station
ministerial functions for the purpose of preventing the latter from usurping 2. Tribunal, corp, board, officer or person unlawfully excludes another from
jurisdiction which it is not legally vested with use and enjoyment of a right or office which the other is entitled

GEN. RULE: Prohibition does NOT ordinarily lie to restrain an act which is already a GEN. RULE: mandamus will not issue when administrative remedies are still
fait accompli (accomplished facts) available
EXCEPT: if party is in estoppel and pure questions of law are raised
EXCEPT: Writ of prohibition will lie to prevent the creation of a new province by May mandamus be used to compel discretionary duty?-> NO! applicable to
those in the corridors of power who could avoid judicial intervention and review by ministerial duty
merely speedily and stealthily completing the commission of such illegality EXCEPT: where there has been GAD, manifest injustice, or palpable excess of
authority in which case the respondent can be ordered to act in a particular manner
PROHIBITION INJUNCTION
Directed to the court or tribunal Directed against a party to the action
directing it to refrain from the Mandamus (2nd ground) Quo warranto
performance of acts it has no jurisdiction When respondent unlawfully excludes If respondent claims any right to office
ot perform. the petitioner from an office which the and usurps, intrudes into/unlawfully
PROHIBITION CERTIORARI latter is entitled without usurping, holds it against the petitioner.
Directed not only against a quasi-judicial Seeks to annul a judicial or quasi-judicial intruding into or unlawfully holding the - Does not necessarily have to be the
or judicial act, but also a ministerial act act. office one who excludes the petitioner.
To command the respondent to desist To annul/modify the judgment, order, - Brought against the person responsible
from further proceedings. resolution or proceeding of the public from excluding the petitioner
respondent. Mandamus Injunction
SCA brought against a tribunal, board, OCA for the defndant to refrain from
corporation or officer to perform a doing an act/perform an act which does
Section 3. Petition for mandamus. — When any tribunal, corporation, board, officer
ministerial or legal duty. not necessarily have to be a minsterial
or person unlawfully neglects the performance of an act which the law specifically
act.
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the proper Section 4. When and where petition filed. — The petition shall be filed not later
court, alleging the facts with certainty and praying that judgment be rendered than sixty (60) days from notice of the judgment, order or resolution. In case a
commanding the respondent, immediately or at some other time to be specified by motion for reconsideration or new trial is timely filed, whether such motion is
the court, to do the act required to be done to protect the rights of the petitioner, required or not, the sixty (60) day period shall be counted from notice of the denial
and to pay the damages sustained by the petitioner by reason of the wrongful acts of said motion.
of the respondent. The petition shall be filed in the Supreme Court or, if it relates to the acts or
The petition shall also contain a sworn certification of non-forum shopping as omissions of a lower court or of a corporation, board, officer or person, in the
provided in the third paragraph of section 3, Rule 46. (3a) Regional Trial Court exercising jurisdiction over the territorial area as defined by the
Supreme Court. It may also be filed in the Court of Appeals whether or not the same
is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its

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appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency,
unless otherwise provided by law or these Rules, the petition shall be filed in and
cognizable only by the Court of Appeals.
No extension of time to file the petition shall be granted except for compelling
reason and in no case exceeding fifteen (15) days. (4a) (Bar Matter No. 803, 21 July
1998; A.M. No. 00-2-03-SC)
Period now INEXTENDIBLE – Last para. Of §4 DELETED by A.M. No. 07-7-
12-SC (December 27, 2007)
Extension, not allowed for certiorari; Amended rules deleted the provision on
extension - The amended rules explicitly deleted the last paragraph of Section 4 of
Rule 65 allowing for an extension of the period for not longer than 15 days due to
compelling reasons. (Laguna Metts v CA)
As a rule an amendment by deletion of certain words or phrases indicates an
intention to change its meaning. If the Court intended to retain the authority of the
proper courts to grant extensions under Sec 4 of Rule 65, the paragraph providing
such authority would have been preserved. The removal only meant that an
extension is no longer allowed.
EFFECT of Amendment of Second para. of § 4
Following the rule on hierarchy of Courts, no certiorari against the RTC shall be filed
with the Supreme Court.
• No more filing with the Supreme Court
• No more extension to file petition even for compelling reasons
• Act/omission of MTC or of a Corporation, Board, an Officer or a Person:
⇒ RTC (exercising jurisdiction over the territorial Area)
⇒ CA/Sandiganbayan (whether or not in the aid of the court’s appellate
jurisdiction)
• Act or omission of Quasi Judicial agency (unless otherwise provided by law or
these rules)
⇒ CA
• Election cases involving act/omission of a municipal or regional trial court:
⇒ COMELEC (exercising appellate jurisdiction)
Section 5. Respondents and costs in certain cases. — When the petition filed
relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal,
corporation, board, officer or person, the petitioner shall join, as private respondent
or respondents with such public respondent or respondents, the person or persons
interested in sustaining the proceedings in the court; and it shall be the duty of such
private respondents to appear and defend, both in his or their own behalf and in
behalf of the public respondent or respondents affected by the proceedings, and the
costs awarded in such proceedings in favor of the petitioner shall be against the
private respondents only, and not against the judge, court, quasi-judicial agency,
tribunal, corporation, board, officer or person impleaded as public respondent or
respondents.
Unless otherwise specifically directed by the court where the petition is pending, the
public respondents shall not appear in or file an answer or comment to the petition
or any pleading therein. If the case is elevated to a higher court by either party, the
public respondents shall be included therein as nominal parties. However, unless
otherwise specifically directed by the court, they shall not appear or participate in
the proceedings therein. (5a)
WHO must be JOINED as respondents:
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1.Judges, court, quasi-judicial agency, tribunal, corporation, board, officer or
person who rendered judgment (public respondent- shall not appear or file
comment/answer unless directed by court)
2. Persons interested in sustaining proceedings in court (private respondent-
appear & defend assailed proceedings & bear costs)
EXCEPT: where the actuation of a judge are assailed on grounds other than legal
ones
Section 6. Order to comment. — If the petition is sufficient in form and substance
to justify such process, the court shall issue an order requiring the respondent or
respondents to comment on the petition within ten (10) days from receipt of a copy
thereof. Such order shall be served on the respondents in such manner as the court
may direct together with a copy of the petition and any annexes thereto.
In petitions for certiorari before the Supreme Court and the Court of Appeals, the
provisions of section 2, Rule 56, shall be observed. Before giving due course
thereto, the court may require the respondents to file their comment to, and not a
motion to dismiss, the petition. Thereafter, the court may require the filing of a
reply and such other responsive or other pleadings as it may deem necessary and
proper. (6a)
-Filed within 10D from receipt of copy of order to comment
Section 7. Expediting proceedings; injunctive relief. — The court in which the
petition is filed may issue orders expediting the proceedings, and it may also grant a
temporary restraining order or a writ of preliminary injunction for the preservation
of the rights of the parties pending such proceedings. The petition shall not interrupt
the course of the principal case unless a temporary restraining order or a writ of
preliminary injunction has been issued against the public respondent from further
proceeding in the case. (7a)
EFFECT of Amendment of § 7 by A.M. No. 07-7-12-SC
Unless there is a TRO or Preliminary Injunction issued by a Higher Court, the main
or principal case should proceed despite the filing of a petition for certiorari
questioning the act or omission of a court or tribunal.
- UNLESS TRO or writ of prelim injunction is issued against public respondent
- Public respondent MUST proceed with principal case within 10D from filing of
petition for certiorari absent TRO or prelim injunction or upon its expiration
-> failure to do so: ground for administrative charge
Section 8. Proceedings after comment is filed. — After the comment or other
pleadings required by the court are filed, or the time for the filing thereof has
expired, the court may hear the case or require the parties to submit memoranda. If
after such hearing or submission of memoranda or the expiration of the period for
the filing thereof the court finds that the allegations of the petition are true, it shall
render judgment for the relief prayed for or to which the petitioner is entitled.
The court, however, may dismiss the petition if it finds the same to be patently
without merit, prosecuted manifestly for delay, or that the questions raised therein
are too unsubstantial to require consideration. (8a)
-Petition NOT sufficient in form and substance: court may dismiss outright
Instances when court may dismiss if it finds petition to be
-patently without merit
-prosecuted for delay
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-questions raised are too unsubstantial to require consideration
->Court may award treble costs solidarily against petitioner and counsel
->Court may impose motu proprio other disciplinary sanctions for patently
dilatory & unmeritorious petitions
-Court may dismiss petition after filing & consideration of comment without holding
a hearing or requiring submission of memoranda
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)
-Certified copy of judgment rendered in Sec.8 shall be served upon court, quasi-
judicial agency, tribunal, corp., board, officer or person concerned in such manner
as court may direct
-Disobedience: contempt
Seagull Ship Management & Transport vs. NLRC
• The filing of a MR is a sine qua non to the institution of a special action for
certiorari, subject to well recognized exceptions
• Certiorari cannot be resorted to as a shield from the adverse consequences of
petitioners’ own omission to file the required MR
Carlos vs. Angeles
• Comelec has original jurisdiction to issue writs of certiorari, prohibition and
mandamus involving election cases in aid of its appellate jurisdiction
• Both the SC and Comelec have concurrent jurisdiction to issue writs of
certiorari, prohibition and mandamus over decisions of trial courts of general
jurisdiction in election cases involving elective municipal officials
Rosete vs. CA
• Certiorari cannot be allowed when a party to a case fails to appeal a judgment
despite the availability of that remedy, certiorari not being a substitute for lost
appeal
• The remedies of appeal & certiorari are mutually exclusive and not alternative
or successive

CERTIORARI PROHIBITION MANDAMUS Tang vs. CA

• The term “personal aggrieved” under Sec. 1 of Rule 65 is not to be construed
Against entity/person Against entity/person Against entity/person
to mean that any person who feels injured by the lower court’s order or
exercising judicial or exercising judicial, quasi- exercising ministerial
decision can question the said court’s disposition via certiorari
quasi-judicial function judicial or ministerial function only
• The term “person aggrieved” who can avail of the special civic action of
function
certiorari pertains to one who was a party in the proceedings before the lower
Person alleged to have Person alleged to have Person alleged to have
court
acted: acted: unlawfully:
-Without jurisdiction -Without jurisdiction -Neglected ministerial
SMI Development Corporation vs. Republic
-In excess of jurisdiction -In excess of jurisdiction duty
• Certiorari may be availed of where an appeal would be slow, inadequate and
-GAD amounting to lack -GAD amounting to lack or -Excluded another from
insufficient
or excess of jurisdiction excess of jurisdiction right or office
Purpose: annul or nullify Purpose: have respondent Purpose: have
proceeding desist form further respondent do act
RULE 66- QUO WARRANTO
proceeding required & pay damages
Corrective remedy: Preventive and negative Affirmative or positive
What is a Quo Warranto Proceeding?
correct usurpation of remedy- restrain/prevent remedy
Quo Warranto literally means ‘by what authority’ and the object is to determine the
jurisdiction usurpation of jurisdiction
right of a person to the use or exercise of a franchise or office and to oust the holder
Discretionary acts Discretionary and Ministerial acts from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to
Ministerial acts enjoy the office (Tecson vs. COMELEC)

Ong vs. People
• While the prerogative writ of certiorari does not lie to correct every
controversial interlocutory order but is confined merely to questions of
jurisdiction, it, however, can be properly restored to where the factual findings
complained of are not supported by the evidence on record, and such factual
findings of the trial court, devoid of support in the evidence on record may
properly be reviewed by the higher court
• The cases in which certiorari will issue cannot be defined, because to do so
would be to destroy its comprehensiveness and usefulness – so wide is the
discretion of the court that authority is not wanting to show that certiorari is
more discretionary than either prohibition or mandamus
Quo warranto is a special civil action or proceeding to determine the right to the use
or exercise of an office or a franchise, and to oust the holder from its employment, if
his claim is not well founded, or if he has forfeited his right to enjoy the privilege.
(Castro v. del Rosario, et al., G.R. 17915)
Under the Code of Civil Procedure, quo warranto was the remedy, among others, by
which one who usurps, intrudes into, or unlawfully holds or exercises a public .civic
office or a franchise within the Philippine Islands, or an office in a corporation
created by authority of the Government of the Philippine Islands, was ousted from
such public civil office, franchise, etc. (Sec. 197, Code of Civil Procedure; Hernando
v. Sambrano, 13 Phil. 178; see also, Government of the P.I. v. Binangonan and
Brown, 28 Phil. 116)

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What is the nature of a quo warranto proceeding?
It is a direct, not a collateral attack, on the matter assailed.
On the part of the plaintiff:
• it is a proceeding of a public nature if filed by a prosecuting attorney ex
officio such as by the Solicitor General or a fiscal
• But is personal in nature as to the person claiming the office.
It is a proceeding against a public officer, not in his official capacity, because no
official power or right or duty is sought, but because the officer’s title to the office is
being questioned
Section 1. Action by Government against individuals. — An action for the
usurpation of a public office, position or franchise may be commenced by a verified
petition brought in the name of the Republic of the Philippines 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. (1a)
Against whom can a petition for quo warranto be filed?
Commenced by a verified petition against the ff:
1. Person who usurps a public office, position, or franchise
2. Public officer who performs an act constituting forfeiture of a public office
3. Association w/c acts as a corporation w/in the Philippines w/o being legally
incorporated or w/o lawful authority to do so
Quo Warranto against Corporations
Quo warranto may be brought against an association acting as a corporation within
the Philippines without being legally incorporated or without lawful authority to act.
Refers to de facto Corporations: those issued a certificate of incorporation although
it had not fully complied with the laws.
De facto Corporation – one which in good faith claims to be a corporation, was
organized in accordance and pursuant to a valid law, and assumes corporate powers
because it was issued a certificate of incorporation.
Its corporate existence can be directly attacked by a quo warranto proceeding
according to Sec. 20 of the Corporation Code.
When can quo warranto proceed against corporations?
1. When it has offended against a provision of an act for its creation or renewal
2. When it has forfeited its privileges and franchises by non-user
3. When it has committed or emmitted an act which amounts to a surrender of its
corporate rights, privileges or franchise
4. When it has misused a right, privilege, or franchise conferred upon it by law or
when it has exercised a right , privilege or franchise in contravention of law
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Intra Corporate Disputes
• Quo Warranto proceedings against persons who usurp the office, powers or
functions of duly elected board members within a Corporation are not within
the scope of Rule 66
• Intra-Corporate disputes are governed by the Interim Rules of Procedure
Governing Intra-Corporate Disputes
• Although RA 8799 mandates that the proceeding shall be tried by Courts of
general Jurisdiction (RTC) or Courts specially designated by the SC, the rules
observed will be the Interim Rules of ICD.
• Rule 66 Shall not apply
Regalado says:
Regalado:
[Rule 66 is now limited to quo warranto proceedings involving a public office,
position or franchise. Paragraph C of section1 refers to an association that exercises
corporate functions without being incorporated. In case of legally incorporated
entities, the quo warranto action is now governed by the Corporation Code]
Section 2. When Solicitor General or public prosecutor must commence action. —
The Solicitor General or a public prosecutor, when directed by the President of the
Philippines, or when upon complaint or otherwise he has good reason to believe that
any case specified in the preceding section can be established by proof, must
commence such action. (3a)
Section 3. When Solicitor General or public prosecutor may commence action with
permission of court. — The Solicitor General or a public prosecutor may, with the
permission of the court in which the action is to be commenced, bring such an
action at the request and upon the relation of another person; but in such case the
officer bringing it may first require an indemnity for the expenses and costs of the
action in an amount approved by and to be deposited in the court by the person at
whose request and upon whose relation the same is brought. (4a)
Section 4. When hearing had on application for permission to commence action. —
Upon application for permission to commence such action in accordance with the
next preceding section, the court shall direct that notice be given to the respondent
so that he may be heard in opposition thereto; and if permission is granted, the
court shall issue an order to that effect, copies of which shall be served on all
interested parties, and the petition shall then be filed within the period ordered by
the court. (5a)
Section 5. When an individual may commence such an action. — A person claiming
to be entitled to a public office or position usurped or unlawfully held or exercised by
another may bring an action therefor in his own name. (6)
Who may commence an action for quo warranto?
1. The Solicitor General or a public prosecutor
a. upon direction of the President; or
b. upon a complaint
c. or when he has good reason to believe he can establish a case on
the grounds in Section 1
2. The Solicitor General or a public prosecutor at the request and upon
relation of another person (ex relatione)
a. The petitioner must first obtain leave of court
b. The petitioner may also require an indemnity bond from the
relator
3. A private person claiming to be entitled to the usurped or unlawfully held
office
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a. The petitioner will not need to secure intervention of the Solicitor - When the action is commenced by the Solicitor General, petition may be
General or a fiscal brought in a Regional Trial Court in Manila, the Court of Appeals, or the Supreme
b. The action will be brought in his name Court.
c. Petitioner must be able to show or establish that he has a clear
right to the position Note: Normally, in civil cases venue is determined by the place of residence of the
i. Not enough that he merely asserts the right to be defendant or plaintiff at the election of the plaintiff, or the location of real
appointed to the office property etc. In quo warranto cases commenced by the Sol gen, the case can be
ii. Otherwise, the action may be dismissed for lack of filed in RTC Manila regardless of the residence of the parties.
cause of action
Note: If elected municipal official = RTC (Sec 253 Omnibus Election Code, Sec 1
Section 6. Parties and contents of petition against usurpation. — When the action is Rule 36 COMELEC rules of procedure)
against a person for usurping a public office, position or franchise, the petition shall If elected barangay official = MTC (Sec 253 Omnibus Election Code, Sec 1 Rule 38
set forth the name of the person who claim to be entitled thereto, if any, with an COMELEC rules of procedure)
averment of his right to the same and that the respondent is unlawfully in Section 8. Period for pleadings and proceedings may be reduced; action given
possession thereof. All persons who claim to be entitled to the public office, position precedence. — The court may reduce the period provided by these Rules for filing
or franchise may be made parties, and their respective rights to such public office, pleadings and for all other proceedings in the action in order to secure the most
position or franchise determined, in the same action. (7a) expeditious determination of the matters involved therein consistent with the rights
of the parties. Such action may be given precedence over any other civil matter
What must be contained in the Petition? pending in the court. (9a)
1. Name of person who claims to be entitled to the office, if any (for private
plaintiffs) Section 9. Judgment where usurpation found. — When the respondent is found
2. Averment of his right to office/position/franchise guilty of usurping into, intruding into, or unlawfully holding or exercising a public
3. Allegation that respondent is unlawfully in possession thereof office, position or franchise, judgment shall be rendered that such respondent be
ousted and altogether excluded therefrom, and that the petitioner or relator, as the
Does the petition require verification? case may be, recover his costs. Such further judgment may be rendered
Yes, according to Section 1 determining the respective rights in and to the public office, position or franchise of
all the parties to the action as justice requires. (10a)
Who may be made parties to the proceedings?
It is an elementary rule that an action for quo warranto is brought against a party - If respondent is found guilty, such respondent will be ousted and excluded
who usurps, intrudes into, or unlawfully holds or exercises a public office. - Petitioner/relator may recover costs
- Such further judgment may be made determining the respective rights of all the
However: parties in regard to the public office as justice requires
• All persons who also claim to be entitled to the public office, position or
franchise may be made RESPONDENTS. Section 10. Rights of persons adjudged entitled to public office; delivery of books
• Their respective rights to the disputed office shall be determined in the and papers; damages. — If judgment be rendered in favor of the person averred in
same action 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
Section 7. Venue. — An action under the preceding six sections can be brought all the books and papers in the respondent's custody or control appertaining to the
only in the Supreme Court, the Court of Appeals, or in the Regional Trial Court office to which the judgment relates. If the respondent refuses or neglects to deliver
exercising jurisdiction over the territorial area where the respondent or any of the any book or paper pursuant to such demand, he may be punished for contempt as
respondents resides, but when the Solicitor General commences the action, it may having disobeyed a lawful order of the court. The person adjudged entitled to the
be brought in a Regional Trial Court in the City of Manila, in the Court of Appeals, or office may also bring action against the respondent to recover the damages
in the Supreme Court. (8a) sustained by such person by reason of the usurpation. (15a)

Which courts have jurisdiction over Quo Warranto cases? 1. Take upon himself the execution of the office
- May be brought to the Supreme Court, the Court of Appeals or Regional Trial 2. Demand from respondent all the books and papers appertaining to the
Court which has jurisdiction over the territorial area where the respondent/s office
resides a. If refuses or neglects to do so = contempt
3. Bring an action for damages against respondent sustained by him by
- May be brought to the Sandiganbayan in certain cases but when in aid of its reason of the usurpation
appellate jurisdiction (P.D. 1606 as amended by R.A. No. 8249) a. Must be commenced w/in 1 yr after the entry of the judgment
establishing the petitioner’s right to the office

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Section 11. Limitations. — Nothing contained in this Rule shall be construed to ELECTIVE OFFICE APPOINTIVE OFFICE
authorize an action against a public officer or employee for his ouster from office Election law Rules of court
unless the same be commenced within one (1) year after the cause of such ouster, Eligibility of the person elected Legality of the occupancy of
or the right of the petitioner to hold such office or position, arose, nor to authorize the office by virtue of legal
an action for damages in accordance with the provisions of the next preceding appointment
section unless the same be commenced within one (1) year after the entry of the Filed w/in 10 days after the Filed w/in 1 yr from the time
judgment establishing the petitioner's right to the office in question. (16a) proclamation of the results of the cause of the ouster, or the
the election right of the petitioner to hold
Prescriptive Period for filing quo warranto cases: An action for quo warranto in office arose
relation to a public office must be filed within 1 year after the cause of the ouster, or Brought to COMELEC, RTC or RTC, CA, SC
the right of the petitioner to hold such office or position arose. MTC
Note: In quo warranto actions over a public office, the filing of a complaint suspends Petitioner may be any voter Must be entitled to the office
the running of the period ( Mendiola v Tancino). However, the prosecution of an even if not entitled to the office
administrative remedy does not suspend the period as exhaustion of administrative When the tribunal declares the Court has to declare who the
remedies is not required before a case for quo warranto can be filed (Celestial v. candidate-elect as ineligible, he person entitled to the office if
Cachopero) will be unseated but the person he is the petitioner
In the exceptional case of Cristobal v. Melchor, the one year period was not applied occupying 2nd place will not
on equitable considerations. In this case, the person involved did not immediately replace him
file a quo warranto case because he was promised reinstatement, which however
did not materialize. It was also noted that other people similarly situated as him also
filed a quo warranto case, which was decided in their favor. RULE 67: EXPROPRIATION

Prescription period for recovery of damages EXPROPRIATION: procedure to e observed in the exercise of the right of eminent
If petitioner is entitled to the office, he may sue the usurper for damages within 1 domain
year from the entry of judgment establishing his right to the office in question. Proper when: owner refuses to sell or agrees to sell but an agreement as to price
cannot be reached
Section 12. Judgment for costs. — In an action brought in accordance with the
provisions of this Rule, the court may render judgment for costs against either the Section 1. The complaint. — The right of eminent domain shall be exercised by the
petitioner, the relator, or the respondent, or the person or persons claiming to be a filing of a verified complaint which shall state with certainty the right and purpose of
corporation, or may apportion the costs, as justice requires. (17a) expropriation, describe the real or personal property sought to be expropriated, and
join as defendants all persons owning or claiming to own, or occupying, any part
Quo Warranto under the Omnibus Election Code thereof or interest therein, showing, so far as practicable, the separate interest of
• May be instituted with the COMELEC by any voter contesting an election of any each defendant. If the title to any property sought to be expropriated appears to be
member of Congress, regional, provincial or city officer within 10 days after the in the Republic of the Philippines, although occupied by private individuals, or if the
proclamation of the results of the election title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or
• Grounds Available: certainty specify who are the real owners, averment to that effect shall be made in
o Ineligibility to the position the complaint. (1a)
o Disloyalty to the Republic of the Philippines
CONTENTS:
Where filed: 1. Right and purpose of expropriation
• Against municipal official; RTC 2. Description of property (real or personal)
• Against any barangay official; MTC 3. All persons owning or claiming to own or occupying any part/interest must
be named as defendants
Quo Warranto Election Contest 4. If title to property to be expropriated is in the name of the RP or if title is
The basis is that the occupant It is based on the ground of obscure/doubtful, averment to that effect shall be made in complaint
is disqualified from holding irregularities in the conduct of GEN. RULE: all properties can be expropriated
office by reason of ineligibility the elections EXCEPT: Money & choses in action
or disloyalty
The respondent will be ousted The successful protestant will Section 2. Entry of plaintiff upon depositing value with authorized government
but the petitioner does not assume office if he has gained depositary. — Upon the filing of the complaint or at any time thereafter and after
necessarily assume office the plurality of votes due notice to the defendant, the plaintiff shall have the right to take or enter upon
the possession of the real property involved if he deposits with the authorized
QUO WARRANTO IN QUO WARRANTO IN government depositary an amount equivalent to the assessed value of the property

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for purposes of taxation to be held by such bank subject to the orders of the court.
Such deposit shall be in money, unless in lieu thereof the court authorizes the
deposit of a certificate of deposit of a government bank of the Republic of the
Philippines payable on demand to the authorized government depositary.
If personal property is involved, its value shall be provisionally ascertained and the
amount to be deposited shall be promptly fixed by the court.
After such deposit is made the court shall order the sheriff or other proper officer to
forthwith place the plaintiff in possession of the property involved and promptly
submit a report thereof to the court with service of copies to the parties. (2a)
-Upon filing of complaint or after & after due notice to defendant-> plaintiff shall
have right to enter or take possession of property if he makes preliminary deposit
Purpose of preliminary deposit: provide damages if court finds that plaintiff has no
right to expropriate; advance payment for just compensation.
Value of preliminary deposit:
-If PERSONAL property: provisionally ascertained & fixed by court
-If REAL property: assessed value in tax return
taking of his property. No counterclaim, cross-claim or third-party complaint shall be
alleged or allowed in the answer or any subsequent pleading.
A defendant waives all defenses and objections not so alleged but the court, in the
interest of justice, may permit amendments to the answer to be made not later than
ten (10) days from the filing thereof. However, at the trial of the issue of just
compensation whether or not a defendant has previously appeared or answered, he
may present evidence as to the amount of the compensation to be paid for his
property, and he may share in the distribution of the award. (n)
Objections:
-If defendant has NO objection: File and serve notice of appearance &
manifestation-> then, he shall be entitled to notice of all proceedings
-If defendant HAS objection: serve answer within time stated in summons
-No counterclaim, cross-claim or 3rd party complaint shall be alleged in
answer/subsequent pleading
-Defendant waives all defences and objections not so alleged but court may permit
amendments to answer to me made NOT later than 10D from filing
-Defendant cannot be declared in default

RA 8794, which provides for a procedure eminently more favorable to the property
owner than Rule 67, inescapably applies in instances when the national government
expropriates property for ‘national government infrastructure projects.’ Thus, For
purposes other than [that], the assessed value standard and the deposit prescribed
in Rule 67 continues to apply. (Republic v. Gingoyon; MCWD v. J. King and Sons)
2 Stages:
1. Expropriation – ascertain the right of the applicant to exercise the
sovereign power of expropriation, and determination of the public purpose
for which it will be used.[that’s why this SCA is subject to mulitple appeals]
2. Just Compensation – 3 disinterested commisioners

Section 2 Rule 67 Republic Act 8974 Section 4. Order of expropriation. — If the objections to and the defenses against
Application Expropriation in general When the National Government the right of the plaintiff to expropriate the property are overruled, or when no party
expropriates for National Gov’t appears to defend as required by this Rule, the court may issue an order of
Infrastructure projects. expropriation declaring that the plaintiff has a lawful right to take the property
For writ of Gov’t. required to make an Gov’t required to make sought to be expropriated, for the public use or purpose described in the complaint,
possession to initial deposit of at least 15% immediate payment to the upon the payment of just compensation to be determined as of the date of the
issue of the FMV owner upon filing of the taking of the property or the filing of the complaint, whichever came first.
complaint. A final order sustaining the right to expropriate the property may be appealed by
Basis of Assessed Value of the prop. Market Value of the property any party aggrieved thereby. Such appeal, however, shall not prevent the court
computing for purposes of taxation. stated in the tax dec. OR the from determining the just compensation to be paid.
amount to be current relevant zonal value of After the rendition of such an order, the plaintiff shall not be permitted to dismiss or
paid the BIR, whichever is higher, discontinue the proceeding except on such terms as the court deems just and
and the value of the equitable. (4a)
infrastructures/improvements
using the replacement/cost Just Compensation – as of the date of filing of the complaint OR upon taking of
method. the property, whichever came FIRST.
-Issued when: objections/defences against right of plaintiff to expropriate are
Section 3. Defenses and objections. — If a defendant has no objection or defense overruled OR no party appears to defend case
to the action or the taking of his property, he may file and serve a notice of
appearance and a manifestation to that effect, specifically designating or identifying Q: Can an applicant withdraw a complaint for exporpriation? YES
the property in which he claims to be interested, within the time stated in the BUT this must be done before the issuance of the order of expropriation.
summons. Thereafter, he shall be entitled to notice of all proceedings affecting the
same. Section 5. Ascertainment of compensation. — Upon the rendition of the order of
If a defendant has any objection to the filing of or the allegations in the complaint, expropriation, the court shall appoint not more than three (3) competent and
or any objection or defense to the taking of his property, he shall serve his answer disinterested persons as commissioners to ascertain and report to the court the just
within the time stated in the summons. The answer shall specifically designate or compensation for the property sought to be taken. The order of appointment shall
identify the property in which he claims to have an interest, state the nature and designate the time and place of the first session of the hearing to be held by the
extent of the interest claimed, and adduce all his objections and defenses to the

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commissioners and specify the time within which their report shall be submitted to
the court.
Copies of the order shall be served on the parties. Objections to the appointment of
any of the commissioners shall be filed with the court within ten (10) days from
service, and shall be resolved within thirty (30) days after all the commissioners
shall have received copies of the objections. (5a)
Commissioners: not more than 3 disinterested persons to ascertain and report to
court just compensation MANDATORY
-Objections to order of appointment-> filed within 10D from service of order;
resolved within 30D after all commissioners received copies of objections
Section 6. Proceedings by commissioners. — Before entering upon the performance
of their duties, the commissioners shall take and subscribe an oath that they will
faithfully perform their duties as commissioners, which oath shall be filed in court
with the other proceedings in the case. Evidence may be introduced by either party
before the commissioners who are authorized to administer oaths on hearings
before them, and the commissioners shall, unless the parties consent to the
contrary, after due notice to the parties, to attend, view and examine the property
sought to be expropriated and its surroundings, and may measure the same, after
which either party may, by himself or counsel, argue the case. The commissioners
shall assess the consequential damages to the property not taken and deduct from
such consequential damages the consequential benefits to be derived by the owner
from the public use or purpose of the property taken, the operation of its franchise
by the corporation or the carrying on of the business of the corporation or person
taking the property. But in no case shall the consequential benefits assessed exceed
the consequential damages assessed, or the owner be deprived of the actual value
of his property so taken. (6a)
-Evidence may be introduced by either party before commissioners
-Commissioners shall assess consequential damages
-Consequential benefits cannot exceed consequential damages
Section 7. Report by commissioners and judgment thereupon. — The court may
order the commissioners to report when any particular portion of the real estate
shall have been passed upon by them, and may render judgment upon such partial
report, and direct the commissioners to proceed with their work as to subsequent
portions of the property sought to be expropriated, and may from time to time so
deal with such property. The commissioners shall make a full and accurate report to
the court of all their proceedings, and such proceedings shall not be effectual until
the court shall have accepted their report and rendered judgment in accordance
with their recommendations. Except as otherwise expressly ordered by the court,
such report shall be filed within sixty (60) days from the date the commissioners
were notified of their appointment, which time may be extended in the discretion of
the court. Upon the filing of such report, the clerk of the court shall serve copies
thereof on all interested parties, with notice that they are allowed ten (10) days
within which to file objections to the findings of the report, if they so desire. (7a)
-Must be filed with court within 60D from notice of their appointment, which time
may be extended in discretion of court
-Shall not be effectual until the court shall have accepted their report and rendered
judgment in accordance with their recommendations
-Interested parties may file objections to report within 10D from notice
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-Findings of commissioners may be disregarded and court may substitute its own
estimated value
Section 8. Action upon commissioners' report. — Upon the expiration of the period
of ten (10) days referred to in the preceding section, or even before the expiration
of such period but after all the interested parties have filed their objections to the
report or their statement of agreement therewith, the court may, after hearing,
accept the report and render judgment in accordance therewith, or, for cause
shown, it may recommit the same to the commissioners for further report of facts,
or it may set aside the report and appoint new commissioners; or it may accept the
report in part and reject it in part and it may make such order or render such
judgment as shall secure to the plaintiff the property essential to the exercise of his
right of expropriation, and to the defendant just compensation for the property so
taken. (8a)
JUST COMPENSATION: equivalent to FMV of property at time of its taking/filing of
complaint whichever comes first; fair & full equivalent for loss sustained by
defendant
FORMULA: JC=FMV + CD – CB
If CB > CD then JC = FMV
*JC= just compensation
FMV= fair market value
CD= consequential damages
CB= consequential benefits
ACCEPT- and render judgment based thereon
SET ASIDE – appoint new commissioners OR recommit to the acting commissioners
for further report on facts.
MAY ALSO: Accept in part and reject in part.
Section 9. Uncertain ownership; conflicting claims. — If the ownership of the
property taken is uncertain, or there are conflicting claims to any part thereof, the
court may order any sum or sums awarded as compensation for the property to be
paid to the court for the benefit of the person adjudged in the same proceeding to
be entitled thereto. But the judgment shall require the payment of the sum or sums
awarded to either the defendant or the court before the plaintiff can enter upon the
property, or retain it for the public use or purpose if entry has already been made.
(9a)
If ownership uncertain or with conflicting claims-> court may order sums to be
awarded as compensation for property to be paid to court for benefit of person
adjudged to be entitiled
Section 10. Rights of plaintiff after judgment and payment. — Upon payment by
the plaintiff to the defendant of the compensation fixed by the judgment, with legal
interest thereon from the taking of the possession of the property, or after tender to
him of the amount so fixed and payment of the costs, the plaintiff shall have the
right to enter upon the property expropriated and to appropriate it for the public use
or purpose defined in the judgment, or to retain it should he have taken immediate
possession thereof under the provisions of section 2 hereof. If the defendant and his
counsel absent themselves from the court, or decline to receive the amount
tendered, the same shall be ordered to be deposited in court and such deposit shall
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have the same effect as actual payment thereof to the defendant or the person
ultimately adjudged entitled thereto. (10a)
Title in expropriation is vested:
-Personal property, upon payment of just compensation
-Real property, upon payment of jut compensation and registration
Section 11. Entry not delayed by appeal; effect of reversal. — The right of the
plaintiff to enter upon the property of the defendant and appropriate the same for
public use or purpose shall not be delayed by an appeal from the judgment. But if
the appellate court determines that plaintiff has no right of expropriation, judgment
shall be rendered ordering the Regional Trial Court to forthwith enforce the
restoration to the defendant of the possession of the property, and to determine the
damages which the defendant sustained and may recover by reason of the
possession taken by the plaintiff. (11a)
Section 14. Power of guardian in such proceedings. — The guardian or guardian ad
litem of a minor or of a person judicially declared to be incompetent may, with the
approval of the court first had, do and perform on behalf of his ward any act,
matter, or thing respecting the expropriation for public use or purpose of property
belonging to such minor or person judicially declared to be incompetent, which such
minor or person judicially declared to be incompetent could do in such proceedings if
he were of age or competent. (14a)
-Guardian with approval of court may perform in behalf of ward acts with regard to
expropriation belonging to such minor or person juridically declared to be
incompetent
RULE 68- FORECLOSURE OF REAL ESTATE MORTGAGE
Action instituted in court

-Order of expropriation may be appealed by defendant by record on appeal-> when Modes of foreclosure of real estate mortgage
multiple appeals are allowed because they have separate & several judgments on 1) Judicial foreclosure pursuant to Rule 68
different issues 2) Extrajudicial foreclosure pursuant to Act.No.3135
-Appeal does NOT delay right of plaintiff to enter & appropriate property
-If owner shall repossess property if order of condemnation is reversed Section 1. Complaint in action for foreclosure. — In an action for the foreclosure of
a mortgage or other encumbrance upon real estate, the complaint shall set forth the
Section 12. Costs, by whom paid. — The fees of the commissioners shall be taxed date and due execution of the mortgage; its assignments, if any; the names and
as a part of the costs of the proceedings. All costs, except those of rival claimants residences of the mortgagor and the mortgagee; a description of the mortgaged
litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the property; a statement of the date of the note or other documentary evidence of the
owner of the property and the judgment is affirmed, in which event the costs of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and
appeal shall be paid by the owner. (12a) the names and residences of all persons having or claiming an interest in the
property subordinate in right to that of the holder of the mortgage, all of whom shall
GEN. RULE: al costs shall be paid by plaintiff be made defendants in the action. (1a)
EXCEPT: cost of rival claimants litigating their claims
-Appeal is taken by owner of property and judgment affirmed-> costs paid by Shall set forth the ff:
owner 1. Date and execution of the mortgage
2. Assignments of the mortgage, if any
Q: What if the government fails to pay the amount of just compensation? 3. Names and residences of the mortgagor and mortgagee
This DOES NOT entitle the private landowner to regain possession of the 4. Description of the mortgaged property
expropriated land until AFTER 5 years from the finality of the judgment. (Yujuico vs. 5. Statement of the date of the note and other documentary evidence of the
Atienza) obligation secured by the mortgage
6. Amount claimed to be unpaid
Section 13. Recording judgment, and its effect. — The judgment entered in 7. Names and residences of all persons having or claiming an interest in the property
expropriation proceedings shall state definitely, by an adequate description, the subordinate in right to that of the holder of the mortgage, all of whom shall be
particular property or interest therein expropriated, and the nature of the public use made defendants
or purpose for which it is expropriated. When real estate is expropriated, a certified
copy of such judgment shall be recorded in the registry of deeds of the place in Judicial Foreclosure Extrajudicial foreclosure
which the property is situated, and its effect shall be to vest in the plaintiff the title Requires court intervention No court intervention necessary
to the real estate so described for such public use or purpose. (13a) There is only an equity of redemption Right of Redemption exists (mortgagor
granted may redeem within 1 year from
Judgment shall state: (unless granted by banks/banking registration of the deed of sale)
1. particular property expropriated institutions in accordance with the Gen.
2. nature of public use (purpose of expropriation) Banking Act)
-If real estate property-> certified copy of judgment recorded in registry of deeds Governed by Rule 68 of the RoC. Governed by Act No. 3135
where property is situated; effect-> vest plaintiff title to real estate Deficiency Judgment is allowable (may Recovery of deficiency done through an
be done by mere motion) independent action.

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Section 2. Judgment on foreclosure for payment or sale. — If upon the trial in such
action the court shall find the facts set forth in the complaint to be true, it shall
ascertain the amount due to the plaintiff upon the mortgage debt or obligation,
including interest and other charges as approved by the court, and costs, and shall
render judgment for the sum so found due and order that the same be paid to the
court or to the judgment obligee within a period of not less than ninety (90) days
nor more than one hundred twenty (120) days from the entry of judgment, and that
in default of such payment the property shall be sold at public auction to satisfy the
judgment. (2a)
If after trial, the court finds that the matters set forth in the complaint are true, it
shall render a judgment containing the ff matters:
(a) An ascertainment of the amount due to the plaintiff upon the mortgage debt
or obligation, including interest and other charges as approved by the court
including costs
(b) Judgment of the sum found due
(c) Order that the amount found due be paid to the court or to the judgment
oblige w/in a period of not less than 90 days nor more than 120 days from the
entry of judgment
(d) An admonition that in default of such payment the property shall be sold at
public auction to satisfy the judgment
- The judgment on the above matters is considered a final adjudication
o Remedy: appeal or other post-judgment remedies
- The period granted to the mortgagor for the payment of the amount found due by
the court is not just a procedural requirement but a substantive right given by law
to the mortgagee as his first chance to save his property from final disposition at
the foreclosure sale. It cannot be omitted.
EQUITY OF REDEMPTION
- Right to extinguish the mortgage and retain ownership of the property by paying
the debt
- May be exercised even after the foreclosure sale provided it is made before the
sale is confirmed by order of the court
- After the sale of the mortgaged property and before its confirmation, the court
may still grant the judgment debtor the opportunity to pay the amount of the
judgment
- May also exist in favor of other encumbrancers. If subsequent lien holders are not
impleaded as parties in the foreclosure suit, the judgment in favour of the
foreclosing mortgagee does not bind the other lien holders.
Equity of Redemption Right of Redemption
Right of the mortgagor to extinguish the Right of the debtor to redeem the
mortgage and retain ownership of the property within 1 year from the
property by paying the debt within 90- registration of the Sheriff’s Certificate of
120 days after the entry of judgment or Foreclosure Sale.
AFTER the foreclosure sale, but BEFORE
confirmation of sale.
HUERTA ALBA RESORT, INC. v. CA & SYNDICATED MGT GROUP, INC.
No such right of redemption exists in case of judicial foreclosure of a mortgage if the
mortgagee is not a bank or banking institution. In such a case, the foreclosure sale,
'when confirmed by an order of the court . . . shall operate to divest the rights of all
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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 3. Sale of mortgaged property; effect. — When the defendant, after being
directed to do so as provided in the next preceding section, fails to pay the amount
of the judgment within the period specified therein, the court, upon motion, shall
order the property to be sold in the manner and under the provisions of Rule 39 and
other regulations governing sales of real estate under execution. Such sale shall not
affect the rights of persons holding prior encumbrances upon the property or a part
thereof, and when confirmed by an order of the court, also upon motion, it shall
operate to divest the rights in the property of all the parties to the action and to
vest their rights in the purchaser, subject to such rights of redemption as may be
allowed by law.
Upon the finality of the order of confirmation or upon the expiration of the period of
redemption when allowed by law, the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the possession of the property unless a
third party is actually holding the same adversely to the judgment obligor. The said
purchaser or last redemptioner may secure a writ of possession, upon motion, from
the court which ordered the foreclosure. (3a)
- Mortgagor fails to pay the sum due w/in the period stated by the court in its
judgment, mortgagee must file a motion for the sale of the mortgaged property
o Motion is non-litigable and may be made ex parte
- Manner of the sale shall follow the rules governing the execution sales under Rule
39.
CONFIRMATION OF THE SALE: after the foreclosure sale has been effected, the
mortgagee shall file a motion for its confirmation
o Requires notice and hearing
o Mortgagor will be allowed the opportunity to show cause why the sale should
not be confirmed and to inform them when his right will be cut off
o If the mortgagor was not notified of the hearing, the subsequent confirmation
of the sale is vitiated as if no confirmation ever took place.
o After the hearing and the court finds valid grounds, it shall issue an order
confirming the foreclosure sale = judgment in itself and is deemed a final
adjudication = appealable
o EFFECT: divests the rights in the property of all the parties to the action and
shall vest their rights in the purchaser, subject to such rights of redemption
allowable by law
EFFECT OF THE FINALITY OF THE CONFIRMATION OF THE SALE
- Becomes final after the period for appeal expires
- Purchaser at the auction sale or last redemptioner, if any, shall be entitled to the
possession of the property and he may secure a writ of possession, upon ex parte
motion from the court w/c ordered the foreclosure sale unless a 3rd party is
actually holding the same adversely to the judgment obligor
LUCENA v. CA
Failure to comply with statutory requirements as to publication of notice of auction
sale constitutes a jurisdictional defect which invalidates the sale. Even slight
deviations are not allowed.
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Section 4. Disposition of proceeds of sale. — The amount realized from the IF SURPLUS INSTEAD OF DEFICIENCY
foreclosure sale of the mortgaged property shall, after deducting the costs of the - Duty of mortgagee to return to the mortgagor
sale, be paid to the person foreclosing the mortgage, and when there shall be any
balance or residue, after paying off the mortgage debt due, the same shall be paid 2 SCENARIOS OF BANKS AS MORTGAGEE under Gen. Banking Act of 2000
to junior encumbrancers in the order of their priority, to be ascertained by the court,
or if there be no such encumbrancers or there be a balance or residue after payment 1) Lender-mortgagee (BANK) à Borrower-mortgagor (INDIVIDUAL)
to them, then to the mortgagor or his duly authorized agent, or to the person - WON Judicial/Extra-judicial
entitled to it. (4a) - after the auction sale, possession is with the purchaser.
- If the mortgagor wants to regain possession, he must file a supersedeas
Amount realized - costs of the sale = paid to the person foreclosing bond.
- BALANCE OR RESIDUE: paid to junior encumbrancers in the order of priortiy - Redemption period granted is 1 year.
ascertained by the court
- NO JUNIOR ENCUMBRANCERS = goes to the mortgagor or his authorized agent, 2) Mortgagee (BANK)à Mortgagor (corporation/juridical personality)
or any other person entitled to it - Only extrajudicial foreclosure
- CATCH: purchaser or bank is entitled to possession (if mortgagee is NOT a
bank, mortgagor retains possession during the redemption pd)
Section 5. How sale to proceed in case the debt is not all due. — If the debt for
- REDEMPTION PERIOD: w/in 90 days OR registration of sale, whichever comes
which the mortgage or encumbrance was held is not all due as provided in the
first
judgment as soon as a sufficient portion of the property has been sold to pay the
total amount and the costs due, the sale shall terminate; and afterwards as often as
NOTE: Banks can only hold acquired assets for a period of 5 years.
more becomes due for principal or interest and other valid charges, the court may,
SPECIAL PURPOSE VEHICLE LAW: where bank can put their acquired assets; not
on motion, order more to be sold. But if the property cannot be sold in portions
required to file a bond
without prejudice to the parties, the whole shall be ordered to be sold in the first
instance, and the entire debt and costs shall be paid, if the proceeds of the sale be
Atty Tranquil says that special civil actions require no breach. So why is there
sufficient therefor, there being a rebate of interest where such rebate is proper. (5a)
judicial foreclosure?
è Non-payment that leads to foreclosure = BREACH
- As soon as a sufficient portion of the property has been sold to pay the amount è BUT: remedy is not a breach (remedy is to foreclose)
due and the costs = sale terminated
- Otherwise, the court may, on motion order more to be sold as often as more
Section 7. Registration. — A certified copy of the final order of the court confirming
becomes due
the sale shall be registered in the registry of deeds. If no right of redemption exists,
- IF property cannot be sold in portions, there shall be ONE SINGLE SALE and the
the certificate of title in the name of the mortgagor shall be cancelled, and a new
entire debt and costs shall be paid and rebate shall be made if proper
one issued in the name of the purchaser.
Where a right of redemption exists, the certificate of title in the name of the
Section 6. Deficiency judgment. — If upon the sale of any real property as provided mortgagor shall not be cancelled, but the certificate of sale and the order confirming
in the next preceding section there be a balance due to the plaintiff after applying the sale shall be registered and a brief memorandum thereof made by the registrar
the proceeds of the sale, the court, upon motion, shall render judgment against the of deeds upon the certificate of title. In the event the property is redeemed, the
defendant for any such balance for which, by the record of the case, he may be deed of redemption shall be registered with the registry of deeds, and a brief
personally liable to the plaintiff, upon which execution may issue immediately if the memorandum thereof shall be made by the registrar of deeds on said certificate of
balance is all due at the time of the rendition of the judgment; otherwise; the title.
plaintiff shall be entitled to execution at such time as the balance remaining If the property is not redeemed, the final deed of sale executed by the sheriff in
becomes due under the terms of the original contract, which time shall be stated in favor of the purchaser at the foreclosure sale shall be registered with the registry of
the judgment. (6a) deeds; whereupon the certificate of title in the name of the mortgagor shall be
cancelled and a new one issued in the name of the purchaser. (n)
- Balance due to the plaintiff after applying the proceeds to the sale
o Court, upon motion, shall render judgment against the defendant for such
Section 8. Applicability of other provisions. — The provisions of sections 31, 32 and
balance
34 of Rule 39 shall be applicable to the judicial foreclosure of real estate mortgages
§ Execution shall immediately issue if the balance is all due at the time of the
under this Rule insofar as the former are not inconsistent with or may serve to
rendition of judgment
supplement the provisions of the latter. (8a)
§ If not due, the plaintiff shall be entitled to execution at such time as the
remaining balance becomes due (must be stated in the judgment)
- No independent action needed to recover the deficiency
- Motion must only be made after the sale and after it is known that deficiency
exists

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 P r o v i s i o n a l R e m e d i e s a n d S p e c i a l C i v i l A c t i o n s – A t t y . T r a n q u i l S a l v a d o r
RULE 69: PARTITION
PARTITION: process of dividing and assigning property owned in common among
the various co-owners thereof in proportion to their respective interests in said
property
JUDICIAL partition: procedure under R69
EXTRA-JUDICIAL partition: no court intervention required
Section 1. Complaint in action for partition of real estate. — A person having the
right to compel the partition of real estate may do so as provided in this Rule,
setting forth in his complaint the nature and extent of his title and an adequate
description of the real estate of which partition is demanded and joining as
defendants all other persons interested in the property. (1a)
CONTENTS:
1. Nature & Extent of his title
2. Adequate description of the real estate of which partition is demanded
3. Join as defendants all other persons interested in the property
-Parties are all co-owners- indispensable parties
-Creditors/assignees of co-owners may intervene and object to a partition effected
without their concurrence.
-Creditors/assignees cannot impugn partition already executed unless there has
been fraud or in a case where formal opposition presented to prevent it
Non-inclusion of co-owner BEFORE judgment: not a ground for MtD-> remedy is to
file motion to include party
Non-inclusion of co-owner AFTER judgment: judgment is void because co-owners
are indispensable parties
GEN. RULE: It can be made anytime and the right to demand partition is
imprescriptible
EXCEPT: if co-owner asserts adverse title to property in which case the period of
prescription runs from such time of assertion of adverse title
2 ASPECTS of partition: existence of co-ownership & accounting
Section 2. Order for partition and partition by agreement thereunder. — If after the
trial the court finds that the plaintiff has the right thereto, it shall order the partition
of the real estate among all the parties in interest. Thereupon the parties may, if
they are able to agree, make the partition among themselves by proper instruments
of conveyance, and the court shall confirm the partition so agreed upon by all the
parties, and such partition, together with the order of the court confirming the
same, shall be recorded in the registry of deeds of the place in which the property is
situated. (2a)
A final order decreeing partition and accounting may be appealed by any party
aggrieved thereby. (n)
-If after trial, TC finds that plaintiff has right-> order partition of real estate among
parties
-If parties can agree to partition among themselves and court agrees-> partition
shall be recorded in registry of deeds in place where property is situated
-Appeal is possible
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Section 3. Commissioners to make partition when parties fail to agree. — If the
parties are unable to agree upon the partition, the court shall appoint not more than
three (3) competent and disinterested persons as commissioners to make the
partition, commanding them to set off to the plaintiff and to each party in interest
such part and proportion of the property as the court shall direct. (3a)
-If parties unable to agree to partition-> court shall appoint not more than 3
commissioners to make partition
-Commissioner shall command to set off to plaintiff and to each party in interest
such part & proportion court shall direct
Section 4. Oath and duties of commissioners. — Before making such partition; the
commissioners shall take and subscribe an oath that they will faithfully perform their
duties as commissioners, which oath shall be filed in court with the other
proceedings in the case. In making the partition, the commissioners shall view and
examine the real estate, after due notice to the parties to attend at such view and
examination, and shall hear the parties as to their preference in the portion of the
property to be set apart to them and the comparative value thereof, and shall set
apart the same to the parties in lots or parcels as will be most advantageous and
equitable, having due regard to the improvements, situation and quality of the
different parts thereof. (4a)
-Appointment of commissioners-> mandatory
-Commissioners with power to effect partition BUT NOT inquire question of
ownership
Section 5. Assignment or sale of real estate by commissioners. — When it is made
to appear to the commissioners that the real state, or a portion thereof, cannot be
divided without prejudice to the interests of the parties, the court may order it
assigned to one of the parties willing to take the same, provided he pays to the
other parties such amount as the commissioners deem equitable, unless one of the
interested parties asks that the property be sold instead of being so assigned, in
which case the court shall order the commissioners to sell the real estate at public
sale under such conditions and within such time as the court may determine. (5a)
-Assignment of real property to one of parties is made if real estate or a portion
cannot be divided w/o prejudice to the interests of parties
REQUISITES
1. Assignment in favour of one of the parties not to 3r d persons
2. Payment to other parties
3. Other interested parties do not ask the court that the property be sold
instead
4.
-If it appears that property cannot be divided w/o prejudice to interest of parties->
may order it assigned to one of the parties willing to take the same, provided he
pays to the other parties such amounts as the commissioners deem equitable
-When one of the interested parties asks that the property be sold instead of being
so assigned-> court shall order the commissioners to sell the real estate at public
sale under such conditions and within such time as the court may determine
Section 6. Report of commissioners; proceedings not binding until confirmed. —
The commissioners shall make a full and accurate report to the court of all their
 P r o v i s i o n a l R e m e d i e s a n d S p e c i a l C i v i l A c t i o n s – A t t y . T r a n q u i l S a l v a d o r
proceedings as to the partition, or the assignment of real estate to one of the
parties, or the sale of the same. Upon the filing of such report, the clerk of court
shall serve copies thereof on all the interested parties with notice that they are
allowed ten (10) days within which to file objections to the findings of the report, if
they so desire. No proceeding had before or conducted by the commissioners and
rendered judgment thereon. (6a)
REPORT of commissioners:
1. Interested parties may object to report within 10D from notice
2. Not binding until the court has accepted it and rendered judgment
Section 7. Action of the court upon commissioners report. — Upon the expiration of
the period of ten (10) days referred to in the preceding section or even before the
expiration of such period but after the interested parties have filed their objections
to the report or their statement of agreement therewith the court may, upon
hearing, accept the report and render judgment in accordance therewith, or, for
cause shown recommit the same to the commissioners for further report of facts; or
set aside the report and appoint new commissioners; or accept the report in part
and reject it in part; and may make such order and render such judgment as shall
effectuate a fair and just partition of the real estate, or of its value, if assigned or
sold as above provided, between the several owners thereof. (7)
- Upon the expiration of the 10D prd in Sec6 or even before expiration of period BUT
after interested parties have filed their objections to the report or their statement of
agreement-> court may, upon hearing:
¬accept the report and render judgment OR
¬ recommit the same to the commissioners for further report of facts
¬ set aside the report and appoint new commissioners
¬ accept the report in part and reject it in part
Section 8. Accounting for rent and profits in action for partition. — In an action for
partition in accordance with this Rule, a party shall recover from another his just
share of rents and profits received by such other party from the real estate in
question, and the judgment shall include an allowance for such rents and profits.
(8a)
-Party shall recover from another his just share of rents and profits received by such
other party from the real estate in question
-Judgment shall include an allowance for such rents and profits.
Section 9. Power of guardian in such proceedings. — The guardian or guardian ad
litem of a minor or person judicially declared to be incompetent may, with the
approval of the court first had, do and perform on behalf of his ward any act,
matter, or thing respecting the partition of real estate, which the minor or person
judicially declared to be incompetent could do in partition proceedings if he were of
age or competent. (9a)
-Guardian with approval of court-> do and perform in behalf of his ward respecting
partition of real estate
Section 10. Costs and expenses to be taxed and collected. — The court shall
equitably tax and apportion between or among the parties the costs and expenses
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which accrue in the action, including the compensation of the commissioners, having
regard to the interests of the parties, and execution may issue therefor as in other
cases. (10a)
-Court shall equitably tax & apportion between and among parties: costs & expenses
which accrue in action
-Including compensation of commissioners
Section 11. The judgment and its effect; copy to be recorded in registry of deeds.
— If actual partition of property is made, the judgment shall state definitely, by
metes and bounds and adequate description, the particular portion of the real estate
assigned to each party, and the effect of the judgment shall be to vest in each party
to the action in severalty the portion of the real estate assigned to him. If the whole
property is assigned to one of the parties upon his paying to the others the sum or
sums ordered by the court, the judgment shall state the fact of such payment and of
the assignment of the real estate to the party making the payment, and the effect of
the judgment shall be to vest in the party making the payment the whole of the real
estate free from any interest on the part of the other parties to the action. If the
property is sold and the sale confirmed by the court, the judgment shall state the
name of the purchaser or purchasers and a definite description of the parcels of real
estate sold to each purchaser, and the effect of the judgment shall be to vest the
real estate in the purchaser or purchasers making the payment or payments, free
from the claims of any of the parties to the action. A certified copy of the judgment
shall in either case be recorded in the registry of deeds of the place in which the real
estate is situated, and the expenses of such recording shall be taxed as part of the
costs of the action. (11a)
- If actual partition of property is made, the judgment shall state:
¬metes and bounds with adequate description
¬particular portion of real estate assigned to each party
¬EFFECT of judgment: vest in each party severalty of portion of real estate
assigned to him
-If whole property is assigned to one of parties upon his paying to others sums
ordered by court-> judgment-> shall state the fact of such payment and of the
assignment of the real estate to the party making the payment
¬EFFECT: vest in party making payment the whole of real estate free from any
interest on the part of the other parties to the action
-If property is sold and the sale confirmed by the court-> judgment shall state the
name of the purchaser or purchasers and a definite description of the parcels of real
estate sold to each purchaser
¬EFFECT: vest the real estate in the purchaser or purchasers making the
payment or payments, free from the claims of any of the parties to the action
-Certified copy of judgment shall be recorded in registry of deeds of place where
property is siuated
Section 12. Neither paramount rights nor amicable partition affected by this Rule.
— Nothing in this Rule contained shall be construed so as to prejudice, defeat, or
destroy the right or title of any person claiming the real estate involved by title
under any other person, or by title paramount to the title of the parties among
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whom the partition may have been made, nor so as to restrict or prevent persons
holding real estate jointly or in common from making an amicable partition thereof
by agreement and suitable instruments of conveyance without recourse to an action.
(12a)
-Rule cannot be construed so as to prejudice, defeat, or destroy the right or title of
any person claiming the real estate involved by title under any other person, or by
title paramount to the title of the parties among whom the partition may have been
made OR
-As to restrict or prevent persons holding real estate jointly or in common from
making an amicable partition thereof by agreement and suitable instruments of
conveyance without recourse to an action
Section 13. Partition of personal property. — The provisions of this Rule shall apply
to partitions of estates composed of personal property, or of both real and personal
property, in so far as the same may be applicable. (13)
-Apply to partitions of estates composed of personal property, or of both real and
personal property
SUMMARY NATURE OF ACTIONS
- Summary in nature to provide for an expeditious means of protecting actual
possession or the right of possession of the property involved
- Irrespective of the amount of damages or unpaid rentals, they fall under the Rules
of Summary Procedure and w/in the jurisdiction of the MTC
NOTE: preliminary/mandatory injunction MAY be issued in the MTC within 5 days
from the filing of the complaint [IF in the RTC, 10 days from filing].
Section 1. Who may institute proceedings, and when. — Subject to the provisions
of the next succeeding section, a person deprived of the possession of any land or
building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor,
vendee, or other person against whom the possession of any land or building is
unlawfully withheld after the expiration or termination of the right to hold
possession, by virtue of any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor, vendee, or other person,
may, at any time within one (1) year after such unlawful deprivation or withholding
of possession, bring an action in the proper Municipal Trial Court against the person
or persons unlawfully withholding or depriving of possession, or any person or
persons claiming under them, for the restitution of such possession, together with
damages and costs. (1a)

RULE 70- FORCIBLE ENTRY AND UNLAWFUL DETAINER FORCIBLE ENTRY UNLAWFUL DETAINER
Person deprived from actual Lessor, vendor, vendee or
ACCION INTERDICTAL possession of any land or other person against whom
- Actions of forcible entry and unlawful detainer belong to the class of actions building by force, intimidation, possession of any land or
known as accion interdictal (ejectment) where the issue is the right of physical or threat, strategy or stealth building is unlawfully withheld
material possession of the subject real property independent of any claim of (FISTS)
ownership by the parties involved NO demand letter needed as DEMAND LETTER to pay and
- Jurisdiction of the 2 actions, w/c are summary in nature, lies in the proper MTC. long as there is (a) prior vacate or comply and vacate is
Both actions must be brought w/in 1 yr from the date of actually entry on the physical possession and (b) necessary.
land, in case of forcible entry, and from the date of last demand, in case of FISTS
forcible entry.
Section 2. Lessor to proceed against lessee only after demand. — Unless otherwise
ACCION ACCION ACCION stipulated, such action by the lesser shall be commenced only after demand to pay
INTERDICTAL PUBLICIANA REINVINDICATORIA or comply with the conditions of the lease and to vacate is made upon the lessee, or
Summary action for A plenary action for N action for the by serving written notice of such demand upon the person found on the premises if
the recovery of the recovery of the recovery of ownership, no person be found thereon, and the lessee fails to comply therewith after fifteen
possession where real right of which necessarily (15) days in the case of land or five (5) days in the case of buildings. (2a)
the dispossession possession when includes the recovery
has NOT lasted the dispossession of possession.
more than 1 year. has lasted MORE - Unless there exists a stipulation to the contrary, an unlawful detainer case shall
than one year. be commenced only after demand to pay or comply w/the conditions of the lease
ALL cases of RTC has jurisdiction RTC has jurisdiction if and TO VACATE is made upon the lessee
forcible entry and if the value of the the value of the - Where the suit is based on the defendant’s failure to pay the rentals agreed upon,
unlawful detainer property exceeds property exceeds the proper demand should be to “pay and to vacate”, not “to pay or to vacate”
irrespective of the P20,000 outside M. P20,000 outside M. - A demand in the alternative either to pay the increased rental or otherwise to
amount of damages Mla./P50,000 if Mla./P50,000 if within vacate the land is not the demand that gives rise to the a cause of action for
or unpaid rentals within M. Mla. M. Mla. unlawful detainer
sought to be MTC – if the value MTC – if the value of - The requirement for a demand implies that the mere failure of the occupant to
recovered should be of the property the property does not pay rentals or his failure to comply w/the conditions of the lease does not ipso
brought to the MTC. does not exceed exceed those facto render his possession of the premises unlawful. It is the failure to comply
those amounts. amounts. w/the demand that vests upon the lessor a cause of action.

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FORM OF DEMAND
- May be in the form of a written notice served upon the person found in the
premises OR a written notice posted on the premises if no person can be found
thereon
- It has been ruled that demand upon a tenant may be oral but sufficient evidence
must be adduced to show that there was indeed a demand like testimonies from
disinterested and unbiased witnesses
EFFECT OF NON-COMPLIANCE W/DEMAND
- If the demand is not complied w/after 15 days n the case of land or 5 days in case
of buildings, the lessor may now proceed against the lessee
Section 3. Summary procedure. — Except in cases covered by the agricultural
tenancy laws or when the law otherwise expressly provides, all actions for forcible
entry and unlawful detainer, irrespective of the amount of damages or unpaid
rentals sought to be recovered, shall be governed by the summary procedure
hereunder provided. (n)
Shall apply except in cases covered by agricultural tenancy laws
Section 4. Pleadings allowed. — The only pleadings allowed to be filed are the
complaint, compulsory counterclaim and cross-claim pleaded in the answer, and the
answers thereto. All pleadings shall be verified. (3a, RSP)
1) Complaint
2) Compulsory counterclaim
3) Cross-claim
4) Answers
Section 5. Action on complaint. — The court may, from an examination of the
allegations in the complaint and such evidence as may be attached thereto, dismiss
the case outright on any of the grounds for the dismissal of a civil action which are
apparent therein. If no ground for dismissal is found, it shall forthwith issue
summons. (n)
DISMISS: if any ground for dismissal of civil action is apparent therein,
ISSUE SUMMONS: if no ground for dismissal is found
Section 6. Answers. — Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and serve a copy thereof on the
plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed
waived, except lack of jurisdiction over the subject matter. Cross-claims and
compulsory counterclaims not asserted in the answer shall be considered barred.
The answer to counterclaims or cross-claims shall be served and filed within ten
(10) days from service of the answer in which they are pleaded. (5 RSP)
- w/in 10 days from service of summons
- answer to counterclaims or cross-claims shall be served and filed w/in 10 days fr
service of the answer in w/c they are pleaded
Section 7. Effect of failure to answer. — Should the defendant fail to answer the
complaint within the period above provided, the court, motu proprio or on motion of
the plaintiff, shall render judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein. The court may in its discretion
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reduce the amount of damages and attorney's fees claimed for being excessive or
otherwise unconscionable, without prejudice to the applicability of section 3 (c), Rule
9 if there are two or more defendants. (6, RSP)
- defendant will not be declared in default
- court will render judgment either motu pro prio or on its own motion
Section 8. Preliminary conference; appearance of parties. — Not later than thirty
(30) days after the last answer is filed, a preliminary conference shall be held. The
provisions of Rule 18 on pre-trial shall be applicable to the preliminary conference
unless inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be cause for
the dismissal of his complaint. The defendant who appears in the absence of the
plaintiff shall be entitled to judgment on his counterclaim in accordance with the
next preceding section. All cross-claims shall be dismissed. (7, RSP)
If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to
judgment in accordance with the next preceding section. This procedure shall not
apply where one of two or more defendants sued under a common cause of action
defense shall appear at the preliminary conference.
No postponement of the preliminary conference shall be granted except for highly
meritorious grounds and without prejudice to such sanctions as the court in the
exercise of sound discretion may impose on the movant. (n)
- held not later than 30 days after the last answer is filed
- PLAINTIFF DOES NOT APPEAR: complaint dismissed and defendant shall be
entitled to counterclaim and all cross-claims will be dismissed
- DEFENDANT DOES NOT APPEAR: plaintiff entitled to judgment
Section 9. Record of preliminary conference. — Within five (5) days after the
termination of the preliminary conference, the court shall issue an order stating the
matters taken up therein, including but not limited to:
1. Whether the parties have arrived at an amicable settlement, and if so, the terms
thereof;
2. The stipulations or admissions entered into by the parties;
OR 3. Whether, on the basis of the pleadings and the stipulations and admission made
by the parties, judgment may be rendered without the need of further proceedings,
in which event the judgment shall be rendered within thirty (30) days from issuance
of the order;
4. A clear specification of material facts which remain converted; and
5. Such other matters intended to expedite the disposition of the case. (8, RSP)
- w/in 5 days after the termination of the preliminary conference, court shall issue
order stating the matters taken up, including:
a) whether the parties have arrived at an amicable settlement and its terms
b) stipulations or admissions
c) whether judgment may be rendered on pleadings, stipulations and admissions
30 days
d) from issuance of the order
e) material facts
f) other matters to expedite proceedings
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Section 10. Submission of affidavits and position papers. — Within ten (10) days
from receipt of the order mentioned in the next preceding section, the parties shall
submit the affidavits of their witnesses and other evidence on the factual issues
defined in the order, together with their position papers setting forth the law and the
facts relied upon by them. (9, RSP)
- parties will submit w/in 10 days fr receipt of the order
Section 11. Period for rendition of judgment. — Within thirty (30) days after receipt
of the affidavits and position papers, or the expiration of the period for filing the
same, the court shall render judgment.
However, should the court find it necessary to clarify certain material facts, during
the said period, issue an order specifying the matters to be clarified, and require the
parties to submit affidavits or other evidence on the said matters within ten (10)
days from receipt of said order. Judgment shall be rendered within fifteen (15) days
after the receipt of the last affidavit or the expiration of the period for filing the
same.
The court shall not resort to the foregoing procedure just to gain time for the
rendition of the judgment. (n)
- 30 days after receipt of the affidavits and positions papers, or
- When the period expires for filing
o Court may order that certain matters be clarified before judgment is rendered
§ May require submission of affidavits or evidence w/in 10 days fr receipt of
said order and render judgment w/in 15 days after receipt
Section 12. Referral for conciliation. — Cases requiring referral for conciliation,
where there is no showing of compliance with such requirement, shall be dismissed
without prejudice, and may be revived only after that requirement shall have been
complied with. (18a, RSP)
If BOTH lessor and lessee reside in the same barangay, or in adjacent barangay’s,
Barangay Conciliation Processes should first be complied with.
Section 13. Prohibited pleadings and motions. — The following petitions, motions,
or pleadings shall not be allowed:
1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over
the subject matter, or failure to comply with section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of
trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions. (19a, RSP)
NOTE: check rules on summary procedure.
Section 14. Affidavits. — The affidavits required to be submitted under this Rule
shall state only facts of direct personal knowledge of the affiants which are
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admissible in evidence, and shall show their competence to testify to the matters
stated therein.
A violation of this requirement may subject the party or the counsel who submits
the same to disciplinary action, and shall be cause to expunge the inadmissible
affidavit or portion thereof from the record. (20, RSP)
- Shall state only facts of direct personal knowledge of the affiants w/c are
admissible in evidence and shall show their competence to testify on said matters
- Violation is cause for disciplinary action on the party and his counsel and cause to
expunge the inadmissible affidavit portion fr the record
Section 15. Preliminary injunction. — The court may grant preliminary injunction,
in accordance with the provisions of Rule 58 hereof, to prevent the defendant from
committing further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible from the filing of the
complaint, present a motion in the action for forcible entry or unlawful detainer for
the issuance of a writ of preliminary mandatory injunction to restore him in his
possession. The court shall decide the motion within thirty (30) days from the filing
thereof. (3a)
- Court may grant to prevent the defendant from committing further acts of
dispossession against plaintiff
- Plaintiff may ask for w/in 5 days fr filing of the complaint and should be decided
w/in 30 days
Section 16. Resolving defense of ownership. — When the defendant raises the
defense of ownership in his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession. (4a)
- The assertion by the defendant of ownership over the disputed property does not
serve to divest the inferior court of jurisdiction.
- When the defendant raises the issue of ownership, court may resolve but only
under the ff conditions:
a) Issue of possession cannot be resolved w/o resolving ownership; and
b) Issue of ownership shall be resolved only to determine the issue of possession
- Such judgment would not bar an action b/w the same parties respecting title to
the land or building. The resolution is merely provisional or interlocutory.
- Summary nature of the action is not changed by the claim of ownership
Section 17. Judgment. — If after trial court finds that the allegations of the
complaint are true, it shall render judgment in favor of the plaintiff for the
restitution of the premises, the sum justly due as arrears of rent or as reasonable
compensation for the use and occupation of the premises, attorney's fees and costs.
If a counterclaim is established, the court shall render judgment for the sum found
in arrears from either party and award costs as justice requires. (6a)
- Damages recoverable by the plaintiff are those corresponding to the sum justly
due as arrears of rent or as reasonable compensation for the use and occupation
of the premises
- Court may also award atty’s fees and costs
- If defendant prevails bec the plaintiff’s allegations are not found to be true, court
shall render judgment for the defendant to recover his costs
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Section 18. Judgment conclusive only on possession; not conclusive in actions
involving title or ownership. — The judgment rendered in an action for forcible entry
or detainer shall be conclusive with respect to the possession only and shall in no
wise bind the title or affect the ownership of the land or building. Such judgment
shall not bar an action between the same parties respecting title to the land or
building.
The judgment or final order shall be appealable to the appropriate Regional Trial
Court which shall decide the same on the basis of the entire record of the
proceedings had in the court of origin and such memoranda and/or briefs as may be
submitted by the parties or required by the Regional Trial Court. (7a)
- Only a provisional finding to aid the court in reaching judgment
- Does not bind the title to or ownership of the land or building
Section 19. Immediate execution of judgment; how to stay same. — If judgment is
rendered against the defendant, execution shall issue immediately upon motion
unless an appeal has been perfected and the defendant to stay execution files a
sufficient supersedeas bond, approved by the Municipal Trial Court and executed in
favor of the plaintiff to pay the rents, damages, and costs accruing down to the time
of the judgment appealed from, and unless, during the pendency of the appeal, he
deposits with the appellate court the amount of rent due from time to time under
the contract, if any, as determined by the judgment of the Municipal Trial Court. In
the absence of a contract, he shall deposit with the Regional Trial Court the
reasonable value of the use and occupation of the premises for the preceding month
or period at the rate determined by the judgment of the lower court on or before the
tenth day of each succeeding month or period. The supersedeas bond shall be
transmitted by the Municipal Trial Court, with the papers, to the clerk of the
Regional Trial Court to which the action is appealed.
All amounts so paid to the appellate court shall be deposited with said court or
authorized government depositary bank, and shall be held there until the final
disposition of the appeal, unless the court, by agreement of the interested parties,
or in the absence of reasonable grounds of opposition to a motion to withdraw, or
for justifiable reasons, shall decree otherwise. Should the defendant fail to make the
payments above prescribed from time to time during the pendency of the appeal,
the appellate court, upon motion of the plaintiff, and upon proof of such failure, shall
order the execution of the judgment appealed from with respect to the restoration of
possession, but such execution shall not be a bar to the appeal taking its course
until the final disposition thereof on the merits.
After the case is decided by the Regional Trial Court, any money paid to the court by
the defendant for purposes of the stay of execution shall be disposed of in
accordance with the provisions of the judgment of the Regional Trial Court. In any
case wherein it appears that the defendant has been deprived of the lawful
possession of land or building pending the appeal by virtue of the execution of the
judgment of the Municipal Trial Court, damages for such deprivation of possession
and restoration of possession and restoration of possession may be allowed the
defendant in the judgment of the Regional Trial Court disposing of the appeal. (8a)
- Judgment is immediately executory to avoid injustice to a lawful possessor, and
the court’s duty to order the execution is practically ministerial
- Only applies when the judgment is against the defendant
HOW TO STAY IMMEDIATE EXECUTION OF THE JUDGMENT:
1) Notice of appeal
2) Supersedeas bond à arrearages fr time required to pay until judgment
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3) Deposit periodically w/the RTC during the pendency of the appeal, the adjudged
amount of rent due under the contract or if no contract, reasonable value of the
use and occupation of the premises
Section 20. Preliminary mandatory injunction in case of appeal. — Upon motion of
the plaintiff, within ten (10) days from the perfection of the appeal to the Regional
Trial Court, the latter may issue a writ of preliminary mandatory injunction to
restore the plaintiff in possession if the court is satisfied that the defendant's appeal
is frivolous or dilatory or that the appeal of the plaintiff is prima facie meritorious.
(9a)
Section 21. Immediate execution on appeal to Court of Appeals or Supreme Court.
— The judgment of the Regional Trial Court against the defendant shall be
immediately executory, without prejudice to a further appeal that may be taken
therefrom. (10a)
- Judgment or final order shall be appealable to the appropriate RTC [NO need of
MR before filing appeal]. RTC’s decision shall be immediately executor, w/o
prejudice to further appeal
o Not stayed by appeal to CA à will only be stayed if able to get a preliminary
injunction in next level court
o Prior notice of judgment is required for immediate execution
o Sec.19 only applies to the judgment made by the MTC
SUPERSEDEAS BOND – to cover unpaid rentals from the failure to pay until final
judgment.
Q: What if the defendant can no longer pay? It will not defeat the appeal. He
will however, be compelled to surrender the possession of the property.
PERSONS BOUND BY THE JUDGMENT IN EJECTMENT CASES
Gen.rule: judgment in an ejectment case is binding only upon the parties properly
impleaded and given an opportunity to be heard bec it is an action in personam.
EXCEPTIONS:
1) Sublessee
2) Guest or a successor in interest
3) Trespassers, squatters or agents of the defendant fraudulently occupying the
property to frustrate the judgment
4) Transferees pendent lite and other privies of the defendant
RULE 71: CONTEMPT
CONTEMPT: disobedience to court by acting in opposition to its authority, justice &
dignity; signifies conduct tending to bring authority of court & administration of law
into disrepute or in some manner to impede due administration of justice
-Power to punish is inherent in all courts
Section 1. Direct contempt punished summarily. — A person guilty of misbehavior
in the presence of or so near a court as to obstruct or interrupt the proceedings
before the same, including disrespect toward the court, offensive personalities
toward others, or refusal to be sworn or to answer as a witness, or to subscribe an
affidavit or deposition when lawfully required to do so, may be summarily adjudged
in contempt by such court and punished by a fine not exceeding two thousand pesos
or imprisonment not exceeding ten (10) days, or both, if it be a Regional Trial Court
 P r o v i s i o n a l R e m e d i e s a n d S p e c i a l C i v i l A c t i o n s – A t t y . T r a n q u i l S a l v a d o r
or a court of equivalent or higher rank, or by a fine not exceeding two hundred
pesos or imprisonment not exceeding one (1) day, or both, if it be a lower court.
(1a)
GROUNDS for direct contempt:
1. Disrespect toward court
2. Offensive personalities toward others
3. Refusal to be sworn or to answer as witness or to subscribe an affidavit or
deposition
4. Misbehavior in presence of or as near to court as to obstruct or interrupt
proceedings
-Summarily adjudged in contempt by such court and punished by a fine not
exceeding 2k or imprisonment exceeding 10D or both
Section 2. Remedy therefrom. — The person adjudged in direct contempt by any
court may not appeal therefrom, but may avail himself of the remedies of certiorari
or prohibition. The execution of the judgment shall be suspended pending resolution
of such petition, provided such person files a 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. (2a)
DIRECT: may not appeal therefrom, but may avail himself of the remedies of
certiorari or prohibition; execution of the judgment shall be suspended pending
resolution of such petition, provided such person files a bond conditioned that he will
abide by and perform the judgment should the petition be decided against him
INDIRECT: appealable
Section 3. Indirect contempt to be punished after charge and hearing. — After a
charge in writing has been filed, and 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, a person guilty of any of the following acts may be punished
for indirect contempt;
(a) Misbehavior of an officer of a court in the performance of his official duties or in
his official 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.
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. (3a)
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GROUNDS for indirect contempt:
1. Misbehavior of an officer of a court in performance of his official duties or
in his official transactions
2. Abuse or any unlawful interference with the proceedings not constituting
direct contempt
3. Disobedience or resistance to a lawful writ, process, order or judgment or
any unauthorized intrusion to any real property after being ejected
4. Failure to obey subpoena duly served
5. Assuming to be an attorney or an officer of the court without authority
6. Rescue or attempted rescue of a person or property in custody of an officer
7. Any improper conduct tending to degrade administration of justice
In cases of disobedience of or resistance to lawful writ, process or order or
judgments, following must be present:
1. order must be specific
2. order must be lawful
3. disobedience should be wilful
Section 4. How proceedings commenced. — Proceedings for indirect contempt may
be initiated 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.
In all other cases, charges for indirect contempt shall be commenced by a verified
petition with supporting particulars and certified true copies of documents or papers
involved therein, and upon full compliance with the requirements for filing initiatory
pleadings for civil actions in the court concerned. If the contempt charges arose out
of or are related to a principal action pending in the court, the petition for contempt
shall allege that fact but said petition shall be docketed, heard and decided
separately, unless the court in its discretion orders the consolidation of the contempt
charge and the principal action for joint hearing and decision. (n)
2 MODES of commencing proceeding for indirect contempt
a. An order or any other formal charge requiring the respondent to show
cause why he should not be punished for contempt (motu proprio)->
applies when indirect contempt committed against court
b. Petition charging indirect contempt with supporting particulars and
certified true copies of the necessary documents and papers (independent
action)-> contemptuous act committed NOT against a court or judicial
officer
REQUISITES before accused may be punished for indirect contempt:
1. Charge in writing to be filed
2. Opportunity for person charged to appear and explain his conduct
3. To be heard by himself or counsel
Section 5. Where charge to be filed. — Where the charge for indirect contempt has
been committed against a Regional Trial Court or a court of equivalent or higher
rank, or against an officer appointed by it, the charge may be filed with such court.
Where such contempt has been committed against a lower court, the charge may be
filed with the Regional Trial Court of the place in which the lower court is sitting; but
the proceedings may also be instituted in such lower court subject to appeal to the
Regional Trial Court of such place in the same manner as provided in section 11 of
this Rule. (4a; Bar Matter No. 803, 21 July 1998)
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1. 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
2. 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
GEN. RULE: Proceeding for indirect contempt shall be filed and tried by court against
which the contumacious conduct was committed
EXCEPT: -If committed against a lower court-> tried by RTC
-Committed against SC, may cause to be investigated by prosecutor & filed with
RTC
Section 6. Hearing; release on bail. — If the hearing is not ordered to be had
forthwith, the respondent may be released from custody upon filing a bond, in an
amount fixed by the court, for his appearance at the hearing of the charge. On the
day set therefor, the court shall proceed to investigate the charge and consider such
comment, testimony or defense as the respondent may make or offer. (5a)
- If the hearing is not ordered-> may be released from custody upon filing a bond
-On the day set for hearing-> court shall proceed to investigate the charge and
consider such comment, testimony or defense as the respondent may make or offer
Section 7. Punishment for indirect contempt. — If the respondent is adjudged guilty
of indirect contempt committed against a Regional Trial Court or a court of
equivalent or higher rank, he may be punished by a fine not exceeding thirty
thousand pesos or imprisonment not exceeding six (6) months, or both. If he is
adjudged guilty of contempt committed against a lower court, he may be punished
by a fine not exceeding five thousand pesos or imprisonment not exceeding one (1)
month, or both. If the contempt consists in the violation of a writ of injunction,
temporary restraining order or status quo order, he may also be ordered to make
complete restitution to the party injured by such violation of the property involved
or such amount as may be alleged and proved.
The writ of execution, as in ordinary civil actions, shall issue for the enforcement of
a judgment imposing a fine unless the court otherwise provides. (6a)
-Adjudged guilty of indirect committed against RTC-> fine not exceeding 30K or
imprisonment not exceeding 6mos or both
-Adjudged guilty of contempt against lower court-> fine not exceeding 5K or
imprisonment not exceeding 1mo.
-If the contempt consists in the violation of a writ of injunction, temporary
restraining order or status quo order, he may also be ordered to make complete
restitution to the party injured
Section 8. Imprisonment until order obeyed. — When the contempt consists in the
refusal or omission to do an act which is yet in the power of the respondent to
perform, he may be imprisoned by order of the court concerned until he performs it.
(7a)
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-When the contempt consists in the refusal or omission to do an act which is yet in
the power of the respondent to perform, he may be imprisoned by order of the court
concerned until he performs it
Section 9. Proceeding when party released on bail fails to answer. — When a
respondent released on bail fails to appear on the day fixed for the hearing, the
court may issue another order of arrest or may order the bond for his appearance to
be forfeited and confiscated, or both; and, if the bond be proceeded against, the
measure of damages shall be the extent of the loss or injury sustained by the
aggrieved party by reason of the misconduct for which the contempt charge was
prosecuted, with the costs of the proceedings, and such recovery shall be for the
benefit of the party injured. If there is no aggrieved party, the bond shall be liable
and disposed of as in criminal cases. (8a)
COURT may:
1. issue another order of arrest
2. Order bond for his appearance to be forfeited & confiscated
3. Both, if no aggrieved party, the bond shall be liable and disposed of
Section 10. Court may release respondent. — The court which issued the order
imprisoning a person for contempt may discharge him from imprisonment when it
appears that public interest will not be prejudiced by his release. (9a)
-Court which issued the order imprisoning a person for contempt may discharge him
from imprisonment when it appears that public interest will not be prejudiced by his
release
Section 11. Review of judgment or final order; bond for stay. — The judgment or
final order of a court in a case of indirect contempt may be appealed to the proper
court as in criminal cases. But execution of the judgment or final order shall not be
suspended until a bond is filed by the person adjudged in contempt, in an amount
fixed by the court from which the appeal is taken, conditioned that if the appeal be
decided against him he will abide by and perform the judgment or final order. (10a)
-Judgment or final order of a court in a case of indirect contempt may be appealed
to the proper court as in criminal cases
-Execution of the judgment or final order shall not be suspended until a bond is filed
by the person adjudged in contempt
Section 12. Contempt against quasi-judicial entities. — Unless otherwise provided
by law, this Rule shall apply to contempt committed against persons, entities, bodies
or agencies exercising quasi-judicial functions, or shall have suppletory effect to
such rules as they may have adopted pursuant to authority granted to them by law
to punish for contempt. The Regional Trial Court of the place wherein the contempt
has been committed shall have jurisdiction over such charges as may be filed
therefor. (n)
-Rule71 applies suppletorily to contempt committed against persons exercising
quasi-judicial functions
-RTC of place wherein contempt has been committed shall have jurisdiction over
such charges as may be filed
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Direct Contempt
Committed in the presence or so near a
court
Summary in nature
Punishment – if committed against:
RTC – Fine not exceeding P2,000 or
imprisonment not exceeding 10d or both
MTC – Fine not exceeding P200 or
imprisonment or imprisonment not
exceeding 1d or both
Remedy – certiorari or prohibition.
Contempt in facie curiae
Indirect Contempt • A person who occupies the land of another at the latter’s forbearance or
Not comitted within the presence of the permission without any contract between the, is necessarily bound by an
court. implied promise that he will vacate upon demand failing of which a summary
With charge and hearing action for ejectment is the proper remedy against him
Punishment – if committed against:
RTC – Fine not exceeding P30,000 or Tala Realty vs. Banco Filipino Savings Bank
imprisonment not exceeding 6mos. or • Ejectment may still be had, grounded on non-payment of rentals, even if the
both. unpaid rentals demanded by lessor were based on a new rate which it
MTC – Fine not exceeding P5,000 or unilaterally imposed and to which the lessee did not agree
imprisonment not exceeding 1 month or • Even if a lessee takes exception to the unilateral or illegal increase in rental
both. rate, it should not completely stop paying rent but should deposit the original
Remedy – is appeal rent among with the judicial authorities or in a bank in the name of, and with
Constructive contempt notice to, the lessor

THE END
Rodriguez vs. Bonifacio
• The power to punish for contempt must be exercised in the preservative not
vindicative principle, and on the corrective not retaliatory idea of punishment –
a judge anywhere should be the last person to be perceived as a petty tyrant
holding imperious sway over his domain
• Disobedience to a lawful writ, process, order, judgment or command of a court
or injunction granted by a court or judge constitutes indirect contempt

Zarate vs. Balderian

• Failure to attend a hearing does not constitute direct contempt
• Indirect contempt can be sanctioned only after the proper charge has been filed
and the respondent has been given the opportunity to be heard

Arquelada vs. Philippine Veterans Bank

• Prior to the institution of an action for unlawful detainer, a demand from the
lessor to pay or comply with the conditions of the lease and to vacate the
premises is required, and the giving of such demands must be alleged in the
complaint, otherwise the MTC cannot acquire jurisdiction over the case
• A notice to vacate is needed only when the action is due to the lessee’s failure
to pay the rent or to comply with the terms of the lease
• Of the action for unlawful detainer is based on the expiration of the contract of
lease, a demand to vacate is not necessary for judicial action after the
expiration of the terms of lease, any notice given merely serves to negate any
inference that the lessor has agreed to extend the period of the lease

SBMA vs. Universal Int’l Group of Taiwan

• Where the main relief sought is to enjoin a party from rescinding a contract and
talking over the property, while possession is necessary though merely
incidental consequence of the suit, the dispute is incapable of pecuniary
estimation and is within the jurisdiction of the RTC

Jimenez vs. Patricia, Inc.

• A complaint for unlawful detainer is sufficient if it alleges that the withholding of
possession or the refusal to vacate is unlawful without necessarily employing
the terminology of the law
• Prior physical possession is indispensable only in actions for forcible entry but
not in unlawful detainer

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