PROVISIONAL REMEDIES RULES 57 TO 61 ---Provisional remedies are ancillary writs in aid of the principal action, so they can not

exist independently of the principal action. A. PRINCIPAL ACTION The five (5) provisional remedies are available in the following principal actions: 1. Preliminary Attachment (Rule 57) a. Recovery of possession of property unjustly or fraudulently taken, detained or converted (Sec. 19); b. Recovery of possession of property unjustly or fraudulently taken, detained or converted (Sec. 19 [c]). 2. Preliminary Injunction (Rules 58) a. Action for Injunction, whether or not coupled with other prayers; b. Forcible entry and Unlawful Detainer (FEUD). 3. Receivership (Rule 59) a. Receivership action; b. Real action involving title to or possession of realty; c. Foreclosure of mortgage; d. Dissolution of corporation; 4. Replevin (Rule 60) a. Recovery of possession of personal property; b. Recovery of personal property subject of chattel mortgage as a preliminary step to extrajudicial foreclosure. 5. Support Pendente Lite (Rule 61) a. Support, whether as the main case or as one of several causes of action; b. Criminal actions ehre the civil liability includes support of the offspring as a consequence of the crime (i.e.,rape, seduction). B. FORUM The court which has jurisdiction over the principal action may grant provisional relief applied for in the principal action: 1. Preliminary attachment a. MTC so long as the principal action is within its jurisdiction (i.e.,FEUD); b. RTC so long as the principal action is within its jurisdiction. c. CA- in appealed cases; d. SC- in appealed cases. 2. Preliminary Injuction

a. MTC ---FEUD and action involving title to or possession of real property where the assessed value does not exceed P20,000.00 or P50,000.00 in Metro Manila. b. RTC ---envorceable within the judicial region. c. CA---even if not in aid of its appellate jurisdiction. d. SC 3. Receivership a. MTC ---action involving title to or possession of personal property whose actual market value does not exceed P100,000.00 or P200,000.00 in Metro Manila or of real property whose assessed value does not exceed P20,000.00 or P50,000.00 in Metro Manila or in foreclosure of mortgage where the obligation sought to be satisfied does not exceed P100,000.00 or P200,000.00 in Metro Manila. b. RTC ---in original case or appealed case; c. CA---in appealed cases; d. SC---in appealed cases. 4. Replevin a. MTC---Recovery of personal property whose market value does not exceed P100,000.00 or P200,000.00 in Metro Manila. b. RTC---Recovery of personal property whose market value exceeds P100,000.00/P200,000.00 in Metro Manila. CA and SC do not have jurisdiction over replevin cases because the remedy is available only at the commencement of the action or at anytime before answer. 5. Support Pendente Lite a. MTC---no jurisdiction in civil case for support which is incapable of pecuniary estimation, but in criminal case of Seduction which is within the support pendente lite to the offspring, if any, as a consequence of the crime; b. RTC---in original case for support or in Seduction appealed to it from the MTC; c. CA---in cases pending appeal; d. SC---in cases pending appeal. C. Requisites (for issuance and enforcement of each of the provisional remedies); 1. Preliminary Attachment a. One of the grounds in Section 1 of Rule 57 exists, stated in an affidavit of the applicant (id.,Sec.3); b. No other sufficient security for the claim (id.,Sec.3); c. Bond (id.,Secs.4 and 2);

d. Levy on attachment shall be preceded, or contemporaneously accompanied, by service of summons together with a copy of the application for attachment, the applicants affidavit and bond, and the order and writ of attachment, on the defendant whtin the Philippines (id.,Sec.5). 2. Preliminary Injunction a. Verified application showing facts entitling the applicant to the relief demanded (Rules 58, Sec. 4[a]); b. Bond, unless exempted by the court (id.,Sec.4[b]); c. Prior or contemporaneous service of summons, etc. upon the adverse party in the Philippines (id.,Sec.4[c]). 3. Receivership a. Verified application with prior hearing (Rule 59), Secs. 1 and 2); b. Bond (Rule 59, Sec. 2). 4. Replevin a. Affidavit of applicant of his ownership of the subject property and its actual market value (Rule 60,Sec.2); b. Bond, double the value of property (id.,Sec.2,last par.) 5. Support Pendente Lite a. Verified application for support pendente lite; b. Hearing to justify grant of support (Rule 61,Sec 3) D. WHEN TO APPLY FOR PROVISIONAL REMEDY 1. Preliminary Attachment At the commencement of the action, or at any time before entry of judgment (Rule 57,Sec.1), that is, before judgment becomes final and executory. Available even pending appeal. Once judgment is final and executory, the remedy is execution. 2. Preliminary Injunction At any stage of the action prior to the judgment or final order. (Rule 58, Sec.1). 3. Receivership At any stage of the proceedings, and even up to the stage after the judgment has become final and executory as a means of enforcing the judgment. (Rule 59,Sec.1[c]). 4. Replevin At the commencement of the action or at anytime before answer (Rule 60, Sec.1). 5. Support Pendente Lite a. At the commencement of the proper action or proceeding, or at anytime prior to the judgment or final order (Rule 61, Sec 1).

1. After final judgment, the remedy is immediate execution pending appeal (Rule 39, Sec 4). 2. Once appeal is perfected and execution pending appeal is no longer available, the remedy is support pendent lite in the appellate court (Ramosv.CA,45 SCRA 604 [1972]). E. APPLICATION Can the Provisional Remedy prayed for be issued ex parte or sans hearing? 1. Preliminary Attachment a. Yes, if obtained at the commencement of the action, on the ground that if not acted upon at once, the property might be disposed of by the defendant. But after the defendant has entered his appearance (jurisdiction is thereby acquired over him), an application for a writ of attachment requires notice and hearing. b. In Mindanao Saving & Loan Ass.v.CA, 172 SCRA 480 (1989), also in BF Homes v.CA, 190 SCRA 262 (1990), it was held that No notice to adverse party, or hearing on the application is required before a writ of attachment may issue. A hearing would defeat the purpose of this provisional remedy. The time which such hearing would take could be enough to enable the defendant to abscond or dispose of his property before a writ of attachment issues. The only requisite for the issuance of a writ of preliminary attachment under Sec. 3, Rule 57 of the Rules of Court are the affidavit and bond of the applicant. It is not notice to defendant that is sought to be avoided but the time which such hearing would take because of the possibility that the defendant may delay the hearing to be able to dispose of his properties. (Onate v. Abrogar, 59 SCAD 241m 241 SCRA 659 [1995]). c. A writ of preliminary attachment may issue even before summons is served upon the defendant. However, the writ can not bind and affect the defendant until jurisdiction over his person is eventually obtained. Therefore, it is required that when the proper officer commences implementation of the writ of attachment, service of summons should be simultaneously made. The attachment of properties before the service of summons on the defendant is invalid (Onate v. Abrogar, supra). d. Under the new Rules, writ of preliminary attachment may be granted ex parte or after hearing (Sec.2), but can not be enforced unless preceded, or

simultaneously accompanied, by personal service of summons on the defendant within the Philippines. (Sec. 5). 2. Preliminary Injunction a. Prior notice is indispensable for the issuance of a Preliminary Injunction (PI) and Temporary Restraining Order (TRO) which must be preceded or contemporaneously accompanied by service of personal or substituted service of summons and a summary hearing. Sec.5). Exemptions: 1. If great or irreparable injury would result to the applicant before the matter can be heard on notice, the court may issue a TRO effective for only twenty (20) days from service on the party enjoined; 2. If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the court may issue ex parte a TRO effective only for seventy-two (72) hours from issuance, renewable after summary hearing for a period not exceeding twenty (20) days including the original 72 hourse. 3.Receivership No ex parte appointment of a Receiver; hearing and bond are required (SEcs. 1 and 2). Receivership is equivalent to an injuction to restrain bank officers from intermeddling with the property of the bank in any way. (Villanueva v. CA, 61 SCAD 373,244 SCRA 395 [1995]}. 4.Replevin Usually yes, since the application is made at the commendement of the action or at anytime before answer (Rule 60, Secs 1 and 3). 5.Support Perdente Lite No. Order is always made after heariang, since the court must determine the right of support. No bond is required. Rule 61, Sec 7). F. DISSOLUTION OR DISCHARGE OF THE WRIT 1. Preliminary Attachment a. Discharge of attachment upon giving of a counter bond (Sec 12); b. Discharge of attachment on other grounds i.e. after motion and hearing on the ground that it was improperly or irregularly issued (no ground under Rule 57, Sec.1 being present) or enforced, or that the bond is insufficient, or that the attachment is excessive, and the defect is not cured (Sec. 13); c. The judgment is rendered against the attaching party, i.e.,dismissal of the principal action (id.,Sec 19,etc).

2. Preliminary Injunction a. On order of the court, on the ground of insufficiency of complaint as shown by complaints itself, whether on the basis of the complaint itself without notice to parties, or after notice and affidavit submitted by the parties (rule 58, Sec.6); b. Filing of counter-bond by defendantto pay all damages the applicant may sustain from lifting of injunction (Sec.6) But this is not a matter of right as plaintiff may not be adequately indemnified if the damage is grave or irreparable. c. Termination of the main action. 3. Receivership a. Filing of counter-bond by party opposing the appointmentbut not a matter of right (Sec.4); b. The appointment was secured without sufficient cause (Sec.4); c. Applicants bond or Receivers bond is insufficient in amount or surety (Sec.5). 4. Replevin a. Counter-bond twice the value of property [Sec.5] (matter of right). 5. Support Pendente Lite a. No basis for demand for support; b. No means of defendant to support (Sec. 1). G. NATURE OF ORDER In general, the order granting or denying an application for any of the provisional remedies is interlocutory, so it is not appealable (Rule 41, Sec. 1[c]). Wait for final judgment, then appeal and assign the ssuance or nonissuance of the order as one of the errors. But if there is grave abuse of discretion, file an appropriate special civil action under rule 65. H. CLAIM FOR DAMAGES In general, all bonds and counter-bonds answer for the damages which the adverse party may suffer due to the issuance or non-issuance of the writ, with the exception of the counterbond to prevent (Rule 57,Sec.5) or discharge (Rule 57,Sec.12) an attachment which does not answer for damages but for the judgment which does not answer for damages but for the judgment that may be rendered in favor of the attaching creditor. 1. Recovery of damages on the bond: Upon application and after proper hearing and shall be included in the judgment in the main case, if the case is on appeal, during pendency of the

appeal. The applellate court in the last instance may allow the application to be heard and eecided by the trial court. 2. Recovery of damages on the counter-bond; a. Must be made in the same action; b. Claim against surety must be made in the same action; otherwise, there can be no separate action. 3. Recovery of the calim the (but not damages) on the counter-bond posted to prevent or dissolve attachment (Rule 57, Sec.17); a. If the writ of execution is returned unsatisfied, move for execution against the surety of the counter-bond, with notice and summary hearing in the same action. Liability of surety is only that of the guarantor, so he has the benefit of excussion. But if liability in the counter-bond is solidary, no need to wait for non-satisfaction of judgment upon execution; just proceed to execute against both judgment defendant and surety.