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LORENZA C. ONGCO vs. VALERIANA UNGCO DALISAY, RESPONDENT.

Intervention is a remedy by which a third party, not srcinally impleaded in the proceedings,
becomes a litigant therein for a certain purpose: to enable the third party to protect or
preserve a right or interest that may be affected by those proceedings. This remedy,
however, is not a right.
The rules on intervention are set forth clearly in Rule 19 of the Rules of Court, which
reads: Sec. 1 . Who may intervene. - A person who has a legal interest in the matter in
litigation, or in the success of either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof may, with leave of court, be allowed to
intervene in the action. The court shall consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the srcinal parties, and whether or not
the intervenor's rights may be fully protected in a separate proceeding. Sec. 2. Time to
intervene. - The motion to intervene may be filed at any time before rendition of judgment
by the trial court. A copy of the pleading-in-intervention shall be attached to the motion
and served on the srcinal parties. It can be readily seen that intervention is not a matter
of right, but is left to the trial court's sound discretion.

The trial court must not only determine if the requisite legal interest is present, but also
take into consideration the delay and the consequent prejudice to the srcinal parties that
the intervention will cause. Both requirements must concur , as the first requirement on
legal interest is not more important than the second requirement that no delay and
prejudice should result. To help ensure that delay does not result from the granting of a
motion to intervene, the Rules also explicitly say that intervention may be allowed only
before rendition of judgment by the trial court.
In Executive Secretary v. Northeast Freight, this Court explained intervention in this wise:
Intervention is not a matter of absolute right but may be permitted by the court when the
applicant shows facts which satisfy the requirements of the statute authorizing
intervention.
Under our Rules of Court, what qualifies a person to intervene is his possession of a legal
interest in the matter in litigation or in the success of either of the parties, or an interest
against both; or when he is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or an officer thereof.
As regards the legal interest as qualifying factor, this Court has ruled that such interest
must be of a direct and immediate character so that the intervenor will either gain or lose
by the direct legal operation of the judgment. The interest must be actual and material, a
concern which is more than mere curiosity, or academic or sentimenta
al desire; it must not be indirect and contingent, indirect and remote, conjectural, consequential or
collateral. However, notwithstanding the presence of a legal interest, permission to intervene is subject
to the sound discretion of the court, the exercise of which is limited by considering “whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the original parties and
whether or not the intervenor’s rights may be fully protected in a separate proceeding.”

212PHILIPPINE REPORTS ANNOTATED Republic vs. Sandiganbayan G.R. No. 90478. November 21,1991. *
REPUBLIC OF THE PHILIPPINES (PRESIDENTIALCOMMISSION ON GOOD GOVERNMENT), petitioner, vs.
SANDIGANBA YAN, BIENVENIDO R. TANTOCO, JR.and DOMINADOR R. SANTIAGO, respondents. Civil
Procedure; Modes of discovery.— The various modes orinstruments of discovery are meant to serve (1)
as a device, alongwith the pre-trial hearing under Rule 20, to narrow and clarify thebasic issues between
the parties, and (2) as a device for ascertainingthe facts relative to those issues. The evident purpose is,
to repeat,to enable the parties, consistent with recognized privileges, to obtainthe fullest possible
knowledge of the issues and facts before civiltrials and thus prevent that said trials are carried on in the
dark. Tothis end, the field of inquiry that may be covered by depositions orinterrogatories is as broad as
when the interrogated party is calledas a witness to testify orally at trial. The inquiry extends to all
factswhich are relevant, whether they be ultimate or evidentiary,excepting only those matters which are
privileged. The objective isas much to give every party the fullest possible information of allthe relevant
facts before the trial as to obtain evidence for use uponsaid trial. ________________ * EN BANC. 213
VOL. 204, NOVEMBER 21, 1991213 Republic vs. Sandiganbayan Same; Same; Leave of court not
necessary. —In line with thisprinciple of according liberal treatment to the deposition-
discoverymechanism, such modes of discovery as (a) depositions (whether byoral examination or
written interrogatories) under Rule 24, (b)interrogatories to parties under Rule 25, and (c) requests
foradmissions under Rule 26, may be availed of without leave of court,and generally, without court
intervention. The Rules of Courtexplicitly provide that leave of court is not necessary to avail of
saidmodes of discovery after an answer to the complaint has been served. It is only when an answer has
not yet been filed (but after jurisdiction has been obtained over the defendant or propertysubject of the
action) that prior leave of court is needed to avail of these modes of discovery, the reason
being that at that time theissues are not yet joined and the disputed facts are not clear.
Same; Same; Leave of court, when required. —On the otherhand, leave of court is required
as regards discovery by (a)production or inspection of documents or things in accordance
withRule 27, or (b) physical and mental examination of persons underRule ,28, which may
be granted upon due application and ashowing of due, cause. Constitutional Law; State
immunity from suit; Waiver. —TheState is, of course, immune from suit in the sense that it
cannot, asa rule, be sued without its consent. But it is axiomatic that in filingan action, it
divests itself of its sovereign character and sheds itsimmunity from suit, descending to the
level of an ordinary litigant.The PCGG cannot claim a superior or preferred status to the
State,even while assuming to represent or act for the State. Thesuggestion that the State
makes no implied waiver of immunity byfiling suit except when in so doing it acts in, or in
mattersconcerning, its proprietary or non-governmental capacity, isunacceptable; it attempts
a distinction without support in principleor precedent. On the contrary-— The consent of the
State to be suedmay be given expressly or impliedly. Express consent may bemanifested
either through a general law or a special law. Impliedconsent is given when the State itself
commences litigation or whenit enters into a contract.” PETITION for certiorari to review the
order of theSandiganbayan.The facts are stated in the opinion of the Court. Dominador R.
Santiago for and in his own behalf andas counsel for respondent Tantoco, Jr. 214
214SUPREME COURT REPORTS ANNOTATED Republic vs. Sandiganbayan NARVASA,
J.: Private respondents Bienvenido R. Tantoco, Jr. andDominador R. Santiago—together
with Ferdinand E.Marcos, Imelda R. Marcos, Bienvenido R. Tantoco, Sr.,Gliceria R.
Tantoco, and Maria Lourdes Tantoco-Pineda— are defendants in Civil Case No. 0008 of
theSandiganbayan. The case was commenced on July 21, 1987by the Presidential
Commission on Good Government(PCGG) in behalf of the Republic of the Philippines.
Thecomplaint which initiated the action was denominated one“for reconveyance, reversion,
accounting, restitution anddamages,” and was avowedly filed pursuant to ExecutiveOrder
No. 14 of President Corazon C. Aquino. After having been served with summons, Tantoco,
Jr.and Santiago, instead of filing their answer, jointly filed a“MOTION TO STRIKE OUT
SOME PORTIONS OF THECOMPLAINT AND FOR BILL OF PARTICULARS OFOTHER
PORTIONS dated Nov. 3, 1987. 1 The PCGG filedan opposition thereto, 2 and the
movants, a reply to theopposition. 3 By order dated January 29, 1988, theSandiganbayan,
in order to expedite proceedings andaccommodate the defendants, gave the PCGG forty-
five (45)days to expand its complaint to make more specific certainallegations. 4 Tantoco
and Santiago then presented a “motion for leaveto file interrogatories under Rule 25 of the
Rules of Court”dated February 1, 1988, and “Interrogatories under Rule25. 5 Basically,
they sought an answer to the question: “Whowere the Commissioners of the PCGG (aside
from itsChairman, Hon. Ramon Diaz, who verified the complaint)who approved or
authorized the inclusion of Messrs. Bienvenido R. Tantoco, Jr. and Dominador R. Santiago
asdefendants in the x x case? 6 The PCGG responded by filinga motion dated February
9,1988 to strike out said motionand interrogatories as being
impertinent, ________________ 1 Petition, Annex D. 2 Id., Annex E. 3 Id., Annex F.
4 Rollo, p. 7. 5 Id., pp. 7, 145. 6 Id., p. 7. 215 VOL. 204, NOVEMBER 21, 1991215
Republic vs. Sandiganbayan “queer,” “weird,” or “procedurally bizarre as the purposethereof
lacks merit as it is improper, impertinent andirrelevant under any guise. 7 On March
18,1988, in compliance with the Order of January 29,1988, the PCGG filed an Expanded
Complaint. 8 As regards this expanded complaint, Tantoco and Santiagoreiterated their
motion for bill of particulars, through aManifestation dated April 11, 1988.9 Afterwards, by
Resolution dated July 4,1988, 10 theSandiganbayan denied the motion to strike out, for bill
of particulars, and for leave to file interrogatories, holdingthem to be without legal and
factual basis. Also denied wasthe PCGG’s motion to strike out impertinent pleading
datedFebruary 9,1988. The Sandiganbayan declared inter alia the complaint to be
“sufficiently definite and clear enough,”there are adequate allegations x x which clearly
portray thesupposed involvement and/or alleged participation of defendants-movants in the
transactions described in detailin said Complaint,” and “the other matters sought
forparticularization are evidentiary in nature which should beventilated in the pre-trial or trial
proper x x.” It also opinedthat (s)ervice of interrogatories before joinder of issue andwithout
leave of court is premature x x (absent) any specialor extraordinary circumstances x x which
would justify x x(the same). Tantoco and Santiago then filed an Answer withCompulsory
Counterclaim under date of July 18, 1988. 11 Inresponse, the PCGG presented a “Reply to
Answer withMotion to Dismiss Compulsory Counterclaim. 12 The casewas set for pre-trial
on July 31, 1989. 13 On July 25, 1989, thePCGG submitted its PRE-TRIAL BRIEF. 14 The
pre- ________________

Rules of Procedure; Modes of Discovery; Written Interrogatories. - The landmark case of

Republic of the Philippines vs. Sandiganbayan (204 SCRA 212, 200) highlighted the significance and
importance of the various modes of discovery. The Philippine Supreme Court said, thus: “now, if appears
to the Court that among far too many lawyers (and not a few judges), there is, if not a regrettable
unfamiliarity and even outright ignorance about the nature, purposes and operation of the modes of
discovery, at least a strong yet unreasoned and unreasonable disinclination and adequate use of the
deposition-discovery mechanism, coupled with pre-trial procedure, could, as the experience of other
jurisdictions convincingly demonstrates, effectively shorten the period of litigation and speed up
adjudication.”

Under Section 2, Rule 25 of the 1997 Rules of Civil Procedure, the written interrogatories must be
answered by the party to whom it is directed, thus: “Section 2. Answer to interrogatories. – The
interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making
them. The party upon whom the interrogatories have been served shall file and serve a copy of the
answers fifteen (15) days after service thereof, unless the court on motion and for good cause shown,
extends or shortens the time.”

Perforce a party served with the written interrogatories is bound to answer the questions propounded
therein under pain of the penalties provided for in Rule 29 of the Rules of Civil Procedure among which is
the dismissal of the complaint.

The various modes of discovery enumerated and provided for in the Rules of Civil Procedure is expressly
made applicable to criminal proceedings (Agpalo, Handbook on Criminal Procedure, 2001 Edition, p. 351;
citing Section 3, Rule 1 of the Rules of Civil Procedure).

It is of no moment that the questions are a sort of “fishing expedition” considering that the new rules
explicitly allow it. The Supreme Court of the Philippines has repeatedly reminded the trial courts that they
should encourage the use of deposition procedure and allow the adverse party to serve interrogatories to
expedite the proceedings of the case.

In the aforementioned case of Republic of the Philippines vs. Sandiganbayan (supra), it was pronounced
that “no longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring
into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both
parties is essential to proper litigation. To that end, either party may compel the other to disgorge
whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage
at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing
the possibility of surprise.”

The case of Elena S. Ong versus Hon. Francisco V. Mazo, etc., et al. (G.R. No. 145542, June 04, 2004), is
enlightening for both the bench and the bar. The Philippine Supreme Court said that “the thrust of the
Rules is to even make the availment of the modes of discovery – depositions, interrogatories and request
for admissions – without much court intervention since leave of court is not necessary to put into motion
such modes after an answer to the complaint has been served. The rationale behind the recognition
accorded the modes of discovery is that they enable a party to discover the evidence of the adverse party
and thus facilitate an amicable settlement or expedite the trial of the case. Thus, to deny a party the
liberty to have his written interrogatories answered by his opponent, as what the trial court did, on the
premise that the interrogatories were a “fishing expedition,” is to disregard the categorical
pronouncement in aforementioned case of Republic vs. Sandiganbayan that the time-honored cry of
‘fishing expedition’ can no longer provide a reason to prevent a party from inquiring into the facts
underlying the opposing party’s case through the discovery procedures. The trial court’s orders, not being
in accordance with law and jurisprudential dictum, are therefore correctible by writ of certiorari.”

The trial judges were earlier reminded in the case of Koh vs. Intermediate Appellate Court (G.R. No.
71388, September 23, 1986), that they should encourage the use of different modes of discovery; and
that it is indeed “the duty of each contending party to lay before the court all the material and relevant
facts known to him, suppressing or concealing nothing, nor preventing another party, by clever and
adroit manipulation of the technical rules of evidence, from also presenting all the facts within his
knowledge.” (Regalado: Remedial Law Compendium, Vol. 1, Sixth Revised Edition, pp. 305, 306)

The purpose of taking depositions as explained In the case of People vs. Webb (312 SCRA 573 [1993];
cited in Agpalo, Handbook on Civil Procedure, 2001 Edition, pp 274, 275), are to: (1) assist the parties in
ascertaining the truth and in checking and preventing perjury; (2) provide an effective means of
detecting and exposing false, fraudulent claims and defenses; (3) make available in a simple, convenient
and inexpensive way, facts which otherwise could not be proved except with greater difficulty; (4)
educate the parties in advance of trial as to the real value of their claims and defenses thereby
encouraging settlements; (5) expedite litigation; (7) prevent delay; (8) simplify and narrow the issues;
and (9) expedite and facilitate both preparation and trial.

The time within which to file and serve written interrogatories is explicitly fixed by the rules, that is, in
civil cases before responsive answer is filed with leave of court or without leave of court after the filing of
responsive answer; and in criminal cases before the setting of the arraignment and pre-trial conference.
The admissions made in the verified answer to the written interrogatories may already be considered
during the pre-trial conference and would definitely aid the parties for purposes of a plea-bargaining.

Further, it is expressly stated under Section 6 of Rule 25 of the 1997 Rules of Civil Procedure that a party
not served with written interrogatories may not be compelled by the adverse party to give testimony in
open court, or to give deposition pending appeal.

Indeed, the various modes of discovery allow a party to uncover the opponent’s cause and will thus
obviate further proof on facts elicited in the written interrogatories; and that the proceedings will be
expedited with the use of the various modes of discovery.

Republic v. Sandiganbayan, 204 SCRA 212

The various modes or instruments of discovery are meant to serve (1) as a device, along
with the pre-trial hearing, to narrow and clarify the basic issues between the parties, and (2) as a
device for ascertaining the facts relative to those issues. The evident purpose is, to repeat, to
enable the parties, consistent with recognized privileges, to obtain fullest possible knowledge of
the issues and facts before civil trails and thus prevent that said trials are carried on in the dark.

To this end, the field of inquiry that may be covered by depositions or interrogatories is as broad
as when the interrogated party is called as a witness to testify orally at trial. The inquiry extends
to all facts which are relevant, whether they be ultimate or evidentiary, excepting only those
matters which are privileged. The objective is as much to give every party the fullest possible
information of all relevant facts before the trial as to obtain evidence for use upon said trial.
In line with the principle of according liberal treatment to the deposition-discovery mechanism,
such modes of discovery as a) depositions (whether by oral examination or written
interrogatories), (b) interrogatories to parties, and (c) requests for admissions, may be availed of
without leave of court, and generally, without court intervention. The Rules of Court explicitly
provide that leave of court is not necessary to avail of said modes of discovery after an answer to
the complaint has been served.

It is only when an answer has not yet been filed (but after jurisdiction has been obtained over the
defendant or property subject of the action) that prior leave of court is needed to avail of these
modes of discovery, the reason being that at that time the issues are not yet joined and the
disputed facts are not clear.

On the other hand, leave of court is required as regards discovery by (a) production or inspection
of documents or things in accordance with Rule 27, or (b) physical and mental examination of
persons under Rule 28, which may be granted upon due application and a showing of due course.

SPOUSES VICENTE AFULUGENCIA and LETICIA AFULUGENCIA, vs.

METROPOLITAN BANK & TRUST CO. And EMMANUEL L. ORTEGA, Clerk of
Court, Regional Trial Court and Ex-Officio Sheriff, Province of Bulacan

Rule 25, Section 6 of the Rules provides that, a party not served with written interrogatories may not
be compelled by the adverse party to give testimony in open court, or to give a deposition pending
appeal unless thereafter allowed by the court for good cause shown and to prevent a failure of
justice.

The provision seeks to prevent fishing expeditions and needless delays. Its goal is to maintain order
and facilitate the conduct of trial.

By requiring prior written interrogatories, the court may limit the inquiry to what is relevant, and thus
prevent the calling party from straying or harassing the adverse party when it takes the latter to the
stand.

Thus, the rule not only protects the adverse party from unwarranted surprises or harassment; it
likewise prevents the calling party from conducting a fishing expedition or bungling its own case.
Using its own judgment and discretion, the court can hold its own in resolving a dispute, and need
not bear witness to the parties perpetrating unfair court practices such as fishing for evidence,
badgering, or altogether ruining their own cases. Ultimately, such unnecessary processes can only
constitute a waste of the court’s precious time, if not pointless entertainment.

Afulgencia vs Metrobank
G. R. No. 185145, Feb. 5, 2014
SPOUSES VICENTE AFULUGENCIA and LETICIA AFULUGENCIA, Petitioners,
vs.
METROPOLITAN BANK & TRUST CO. and EMMANUEL L. ORTEGA, Clerk of Court, Regional Trial
Court and Ex-Officio Sheriff, Province of Bulacan, Respondents.

Petitioners, spouses Vicente and Leticia Afulugencia, filed a Complaint for nullification of mortgage,
foreclosure, auction sale, certificate of sale and other documents, with damages, against respondents
Metropolitan Bank & Trust Co. (Metrobank) and Emmanuel L. Ortega (Ortega) before the Regional Trial
Court (RTC) of Malolos City
Metrobank is a domestic banking corporation existing under Philippine laws, while Ortega is the Clerk of
Court and Ex-Officio Sheriff of the Malolos RTC.

After the filing of the parties’ pleadings and with the conclusion of pre-trial, petitioners filed a Motion for
Issuance of Subpoena Duces Tecum Ad Testificandum to require Metrobank’s officers to appear and
testify as the petitioners’ initial witnesses during the August 31, 2006 hearing for the presentation of their
evidence-in-chief, and to bring the documents relative to their loan with Metrobank, as well as those
covering the extrajudicial foreclosure and sale of petitioners’ 200-square meter land in Meycauayan,
Bulacan covered by Transfer Certificate of Title No. 20411.

Metrobank filed an Opposition arguing that for lack of a proper notice of hearing, the Motion must be
denied; that being a litigated motion, the failure of petitioners to set a date and time for the hearing
renders the Motion ineffective and pro forma; that pursuant to Sections 1 and 611 of Rule 25 of the Rules,
Metrobank’s officers – who are considered adverse parties – may not be compelled to appear and testify
in court for the petitioners since they were not initially served with written interrogatories; that petitioners
have not shown the materiality and relevance of the documents sought to be produced in court; and that
petitioners were merely fishing for evidence.

Petitioners submitted a Reply stating that the lack of a proper notice of hearing was cured by the filing of
Metrobank’s Opposition; that applying the principle of liberality, the defect may be ignored; that leave of
court is not necessary for the taking of Metrobank’s officers’ depositions; that for their case, the issuance
of a subpoena is not unreasonable and oppressive, but instead favorable to Metrobank, since it will
present the testimony of these officers just the same during the presentation of its own evidence; that the
documents sought to be produced are relevant and will prove whether petitioners have paid their
obligations to Metrobank in full, and will settle the issue relative to the validity or invalidity of the
foreclosure proceedings; and that the Rules do not prohibit a party from presenting the adverse party as
its own witness.

Issue:
THE COURT OF APPEALS COMMITTED REVERSIBLE ERRORS IN REQUIRING NOTICE
AND HEARING (SECS. 4 AND 5, RULE 15, RULES OF COURT) FOR A MERE MOTION FOR
SUBPOENA OF RESPONDENT BANK’S OFFICERS WHEN SUCH REQUIREMENTS APPLY ONLY
TO DEPOSITION UNDER SEC. 6, RULE 25, RULES OF COURT.

Held:
On the procedural issue, it is quite clear that Metrobank was notified of the Motion for Issuance of
Subpoena Duces Tecum Ad Testificandum; in fact, it filed a timely Opposition thereto. The technical
defect of lack of notice of hearing was thus cured by the filing of the Opposition.

As officers of the adverse party Metrobank are being compelled to testify as the calling party’s main
witnesses; likewise, they are tasked to bring with them documents which shall comprise the petitioners’
principal evidence. This is not without significant consequences that affect the interests of the adverse
party, as will be shown below.
As a rule, in civil cases, the procedure of calling the adverse party to the witness stand is not allowed,
unless written interrogatories are first served upon the latter. This is embodied in Section 6, Rule 25 of the
Rules, which provides –

Sec. 6. Effect of failure to serve written interrogatories.

Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party
not served with written interrogatories may not be compelled by the adverse party to give testimony in
open court, or to give a deposition pending appeal.

One of the purposes of the above rule is to prevent fishing expeditions and needless delays; it is there to
maintain order and facilitate the conduct of trial. It will be presumed that a party who does not serve
written interrogatories on the adverse party beforehand will most likely be unable to elicit facts useful to its
case if it later opts to call the adverse party to the witness stand as its witness. Instead, the process could
be treated as a fishing expedition or an attempt at delaying the proceedings; it produces no significant
result that prior written interrogatories might bring.

Besides, since the calling party is deemed bound by the adverse party’s testimony, compelling the
adverse party to take the witness stand may result in the calling party damaging its own case. Otherwise
stated, if a party cannot elicit facts or information useful to its case through the facility of written
interrogatories or other mode of discovery, then the calling of the adverse party to the witness stand could
only serve to weaken its own case as a result of the calling party’s being bound by the adverse party’s
testimony, which may only be worthless and instead detrimental to the calling party’s cause.

Another reason for the rule is that by requiring prior written interrogatories, the court may limit the inquiry
to what is relevant, and thus prevent the calling party from straying or harassing the adverse party when it
takes the latter to the stand.

Thus, the rule not only protects the adverse party from unwarranted surprises or harassment; it likewise
prevents the calling party from conducting a fishing expedition or bungling its own case. Using its own
judgment and discretion, the court can hold its own in resolving a dispute, and need not bear witness to
the parties perpetrating unfair court practices such as fishing for evidence, badgering, or altogether
ruining their own cases. Ultimately, such unnecessary processes can only constitute a waste of the
court’s precious time, if not pointless entertainment.

In the present case, petitioners seek to call Metrobank’s officers to the witness stand as their initial and
main witnesses, and to present documents in Metrobank’s possession as part of their principal
documentary evidence. This is improper. Petitioners may not be allowed, at the incipient phase of the
presentation of their evidence-in-chief at that, to present Metrobank’s officers – who are considered
adverse parties as well, based on the principle that corporations act only through their officers and duly
authorized agents – as their main witnesses; nor may they be allowed to gain access to Metrobank’s
documentary evidence for the purpose of making it their own. This is tantamount to building their whole
case from the evidence of their opponent. The burden of proof and evidence falls on petitioners, not on
Metrobank; if petitioners cannot prove their claim using their own evidence, then the adverse party
Metrobank may not be pressured to hang itself from its own defense.

It is true that under the Rules, a party may, for good cause shown and to prevent a failure of justice, be
compelled to give testimony in court by the adverse party who has not served written interrogatories. But
what petitioners seek goes against the very principles of justice and fair play; they would want that
Metrobank provide the very evidence with which to prosecute and build their case from the start. This
they may not be allowed to do.

Finally, the Court may not turn a blind eye to the possible consequences of such a move by petitioners.
As one of their causes of action in their Complaint, petitioners’ claim that they were not furnished with
specific documents relative to their loan agreement with Metrobank at the time they obtained the loan and
while it was outstanding. If Metrobank were to willingly provide petitioners with these documents even
before petitioners can present evidence to show that indeed they were never furnished the same, any
inferences generated from this would certainly not be useful for Metrobank. One may be that by providing
petitioners with these documents, Metrobank would be admitting that indeed, it did not furnish petitioners
with these documents prior to the signing of the loan agreement, and while the loan was outstanding, in
violation of the law.

G.R. No. 185145, February 05, 2014, SPOUSES VICENTE AFULUGENCIA AND LETICIA
AFULUGENCIA, PETITIONERS, VS. METROPOLITAN BANK & TRUST CO. AND EMMANUEL L.
ORTEGA, CLERK OF COURT, REGIONAL TRIAL COURT AND EX-OFFICIO SHERIFF,
PROVINCE OF BULACAN, RESPONDENTS.



“x x x.

As a rule, in civil cases, the procedure of calling the adverse party to the witness stand is not allowed,
unless written interrogatories are first served upon the latter. This is embodied in Section 6, Rule 25
of the Rules, which provides –

Sec. 6. Effect of failure to serve written interrogatories.

Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice,
a party not served with written interrogatories may not be compelled by the adverse party to
give testimony in open court, or to give a deposition pending appeal.

One of the purposes of the above rule is to prevent fishing expeditions and needless delays; it is there
to maintain order and facilitate the conduct of trial. It will be presumed that a party who does not serve
written interrogatories on the adverse party beforehand will most likely be unable to elicit facts useful
to its case if it later opts to call the adverse party to the witness stand as its witness. Instead, the
process could be treated as a fishing expedition or an attempt at delaying the proceedings; it produces
no significant result that a prior written interrogatories might bring.

Besides, since the calling party is deemed bound by the adverse party’s testimony, compelling the
adverse party to take the witness stand may result in the calling party damaging its own case.
Otherwise stated, if a party cannot elicit facts or information useful to its case through the facility of
written interrogatories or other mode of discovery, then the calling of the adverse party to the witness
stand could only serve to weaken its own case as a result of the calling party’s being bound by the
adverse party’s testimony, which may only be worthless and instead detrimental to the calling party’s
cause.

Another reason for the rule is that by requiring prior written interrogatories, the court may limit the
inquiry to what is relevant, and thus prevent the calling party from straying or harassing the adverse
party when it takes the latter to the stand.

Thus, the rule not only protects the adverse party from unwarranted surprises or harassment; it
likewise prevents the calling party from conducting a fishing expedition or bungling its own case. Using
its own judgment and discretion, the court can hold its own in resolving a dispute, and need not bear
witness to the parties perpetrating unfair court practices such as fishing for evidence, badgering, or
altogether ruining their own cases. Ultimately, such unnecessary processes can only constitute a
waste of the court’s precious time, if not pointless entertainment.

In the present case, petitioners seek to call Metrobank’s officers to the witness stand as their initial
and main witnesses, and to present documents in Metrobank’s possession as part of their principal
documentary evidence. This is improper. Petitioners may not be allowed, at the incipient phase of the
presentation of their evidence-in-chief at that, to present Metrobank’s officers – who are considered
adverse parties as well, based on the principle that corporations act only through their officers and
duly authorized agents – as their main witnesses; nor may they be allowed to gain access to
Metrobank’s documentary evidence for the purpose of making it their own. This is tantamount to
building their whole case from the evidence of their opponent. The burden of proof and evidence falls
on petitioners, not on Metrobank; if petitioners cannot prove their claim using their own evidence, then
the adverse party Metrobank may not be pressured to hang itself from its own defense.

It is true that under the Rules, a party may, for good cause shown and to prevent a failure of justice,
be compelled to give testimony in court by the adverse party who has not served written
interrogatories. But what petitioners seek goes against the very principles of justice and fair play; they
would want that Metrobank provide the very evidence with which to prosecute and build their case
from the start. This they may not be allowed to do.

Finally, the Court may not turn a blind eye to the possible consequences of such a move by petitioners.
As one of their causes of action in their Complaint, petitioners claim that they were not furnished with
specific documents relative to their loan agreement with Metrobank at the time they obtained the loan
and while it was outstanding. If Metrobank were to willingly provide petitioners with these documents
even before petitioners can present evidence to show that indeed they were never furnished the same,
any inferences generated from this would certainly not be useful for Metrobank. One may be that by
providing petitioners with these documents, Metrobank would be admitting that indeed, it did not
furnish petitioners with these documents prior to the signing of the loan agreement, and while the loan
was outstanding, in violation of the law.

X x x.”

ROMEO TESTON, represented by Conrado Colarina vs. DEVELOPMENT

BANK OF THE PHILIPPINES, LAND BANK OF THE PHILIPPINES, and
SECRETARY OF AGRARIAN REFORM
G.R. NO. 144374 November 11, 2005

Consolidation of actions is expressly authorized under Section 1, Rule 31 of the 1997 Rules of
Civil Procedure, which states:

SECTION 1. Consolidation. When actions involving a common question of law or fact or

pending before the court, it may order a joint hearing or trial of any or all the matters in issue in
the actions; it may order all the actions consolidated; and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or delay.

A court may order several actions pending before it to be tried together where they arise from
the same act, event or transaction, involve the same or like issues, and depend largely or
substantially on the same evidence, provided that the court has jurisdiction over the cases to be
consolidated and that a joint trial will not give one party an undue advantage or prejudice the
substantial rights of any of the parties.[19] The obvious purpose of the rule allowing consolidation
is to avoid multiplicity of suits to guard against oppression or abuse, to prevent delays, to clear
congested dockets, to simplify the work of the trial court; in short the attainment of justice with
the least expense and vexation to the parties litigants.[20] Consolidation of actions is addressed
to the sound discretion of the court and its action in consolidating will not be disturbed in the
absence of manifest abuse of discretion.[21]
 Therefore, the RTC exceeded its jurisdiction in setting the joint trial of the two cases.
Consolidation should be denied when prejudice would result to any of the parties or would cause
complications, delay, cut off, or restrict the rights of a party,[22] as in this case.

Demurrer:

CASENT REALTY DEVELOPMENT CORP. Vs. PHILBANKING CORPORATION

Section 1. Demurrer to evidence.After the plaintiff has completed the presentation of his
evidence, the defendant may move for dismissal on the ground that upon the facts and the law
the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present
evidence. If the motion is granted but on appeal the order of dismissal is reversed he shall be
deemed to have waived the right to present evidence.

The facts referred to in Section 8 should include all the means sanctioned by the Rules of Court
in ascertaining matters in judicial proceedings. These include judicial admissions, matters of
judicial notice, stipulations made during the pre-trial and trial, admissions, and presumptions, the
only exclusion being the defendants evidence.

Judgment based on compromise:

NESTOR T. GADRINAB vs. NORAT. SALAMANCA, ANTONIO TALAO AND
ELENA LOPEZ

In a compromise agreement, the parties freely enter into stipulations. "[A] judgment based on a
compromise agreement is a judgment on the merits"52 of the case. It has the effect of res judicata.

It is well settled that a judicial compromise has the effect of res judicata and is immediately
executory and not appealable unless set aside [by mistake, fraud, violence, intimidation, undue
influence, or falsity of documents that vitiated the compromise agreement].54

Because a judicial compromise agreement is in the nature of both an agreement between the parties
and a judgment on the merits, it is covered by the Civil Code provisions on contracts. It can be
avoided on grounds that may avoid an ordinary contract, e.g., it is not in accord with the law;63 lack of
consent by a party; and existence of fraud or duress. Further, the pertinent Civil Code provisions on
compromise agreements provide:

Article 2038. A compromise in which there is mistake, fraud, violence, intimidation, undue influence,
or falsity of documents is subject to the provisions of Article 1330 of this Code.

Article 1330. A contract where consent is given through mistake, violence, intimidation, undue
influence, or fraud is voidable.
Therefore, courts cannot entertain actions involving the same cause of action, parties, and subject
matter without violating the doctrines on bar by prior judgment and immutability of judgments, unless
there is evidence that the agreement was void, obtained through fraud, mistake or any vice of
consent, or would disrupt substantial justice.

Since a judgment on compromise agreement is effectively a judgment on the case, proper remedies
against ordinary judgments may be used against judgments on a compromise agreement. Provided
these are availed on time and the appropriate grounds exist, remedies may include the following: a)
motion for reconsideration; b) motion for new trial; c) appeal; d) petition for relief from judgment; e)
petition for certiorari; and f) petition for annulment of judgment.71

Interlocutory order:
METROPOLITAN BANK & TRUST COMPANY vs. COURT OF APPEALS and
ALFONSO ROXAS CHUA

a party in default is not precluded from filing an appeal, as provided in Section 2, Rule 41 of the
pre-1997 Rules of Court (in effect at the time), which states:

Sec. 2. Judgements or orders subject to appeal. -- Only final judgments or orders shall be
subject to appeal. No interlocutory or incidental judgment or order shall stay the progress of an
action, nor shall it be the subject of appeal until final judgment or order is rendered for one party
or the other.

A judgment denying relief under Rule 38 is subject to appeal, and in the course thereof, a party
may also assail the judgment on the merits, upon the ground that it is not supported by the
evidence or it is contrary to law.

A party who has been declared in default may likewise appeal from the judgment rendered
against him as contrary to the evidence or to the law, even if no petition for relief to set aside the
order of default has been presented by him in accordance with Rule 38.[16]

The above provision, particularly its third paragraph, clearly states that one who has been
declared in default may appeal, without need of an order lifting the default.[17] Hence, the mere
fact that the trial court has not lifted its default order does not bar herein respondent from filing
an appeal.

If at all, petitioner ought to have challenged the default status of private respondent when he
filed his Motion to hold in abeyance the delivery of the Certificate of Sale. However, the denial of
that Motion being final in character as we shall now show, he is allowed by the Rules to appeal
therefrom.

Paragraph 1 of the above-quoted Rule provides that decisions and final orders are appealable.
Because the RTC Orders were final, not merely interlocutory, the CA did not err in allowing
respondents appeal.

It has been held that [a]n interlocutory order does not terminate or finally dismiss or finally
dispose of the case, but leaves something to be done by the court before the case is finally
decided on the merits.[18]
 It refers to something between the commencement and end of the suit which decides some
point or matter but it is not the final decision on the whole controversy.[19] Conversely, a final
order is one which leaves to the court nothing more to do to resolve the case.

The test to ascertain whether an order is interlocutory or final is: Does it leave something to be
done in the trial court with respect to the merits of the case? If it does, it is interlocutory; if it does
not, it is final.[20]

Remedy against judgment:

DOMINGO NEYPES, LUZ FAUSTINO, ROGELIO FAUSTINO, LOLITO
VICTORIANO, JACOB OBANIA AND DOMINGO CABACUNGAN vs.
HON. COURT OF APPEALS, HEIRS OF BERNARDO DEL MUNDO, namely: FE,
CORAZON, JOSEFA, SALVADOR and CARMEN, all surnamed DEL MUNDO,
LAND BANK OF THE PHILIPPINES AND HON. ANTONIO N. ROSALES,
Presiding Judge, Branch 43, Regional Trial Court, Roxas, Oriental Mindoro
G.R. No. 141524 September 14, 2005

Page 133-reviewer and p.265-dean

APPEAL: APPLICATION OF THE FRESH

PERIOD RULE (NEYPES DOCTRINE)
As early as 2005, the Supreme Court categorically declared inNeypes v. Court of
Appeals, G.R. No. 141524, September 14, 2005, 469 SCRA 633 that by virtue of its power to
amend, repeal and create new procedural rules in all courts, the High Court is allowing a fresh
period of 15 days within which to file a notice of appeal in the RTC, counted from receipt of the
order dismissing or denying a motion for new trial or motion for reconsideration. This would
standardize the appeal periods provided in the Rules and do away with the confusion as to when
the 15-day appeal period should be counted. Thus, the Court stated:

“To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to
appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the
notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new
trial or motion for reconsideration. xxxx

Henceforth, this "fresh period rule" shall also apply to Rule 40 governing appeals from the Municipal
Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to
the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45
governing appeals by certiorari to the Supreme Court.

The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of
the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final
order or resolution.

x x x x To recapitulate, a party-litigant may either file his notice of appeal within 15 days from
receipt of the Regional Trial Courts decision or file it within 15 days from receipt of the order (the final
order) denying his motion for new trial or motion for reconsideration. Obviously, the new 15-day period may
be availed of only if either motion is filed; otherwise, the decision becomes final and executory after the
lapse of the original appeal period provided in Rule 41, Section 3.”
 With the advent of the "fresh period rule," parties who availed themselves of the remedy
of motion for reconsideration are now allowed to file a notice of appeal within fifteen days from
the denial of that motion.
The fresh period rule is not inconsistent with Rule 41, Section 3 of the Revised Rules of
Court which states that the appeal shall be taken within fifteen (15) days from notice of
judgment or final order appealed from. The use of the disjunctive word or signifies disassociation
and independence of one thing from another. It should, as a rule, be construed in the sense
which it ordinarily implies. Hence, the use of or in the above provision supposes that the notice
of appeal may be filed within 15 days from the notice of judgment or within 15 days from notice
of the final order.
xxxx
The fresh period rule finally eradicates the confusion as to when the 15-day appeal period
should be counted from receipt of notice of judgment or from receipt of notice of final order
appealed from.
Taking bearings from Neypes, in Sumaway v. Urban Bank, Inc., the Supreme Court set
aside the denial of a notice of appeal which was purportedly filed five days late. With the fresh
period rule, the 15-day period within which to file the notice of appeal was counted from notice
of the denial of the therein petitioners motion for reconsideration.
This was followed in Elbia v. Ceniza, wherein the Supreme Court applied the principle
granting a fresh period of 15 days within which to file the notice of appeal, counted from receipt
of the order dismissing a motion for new trial or motion for reconsideration or any final order or
resolution.
Thereafter, in First Aqua Sugar Traders, Inc. v. Bank of the Philippine Islands, it held that
a party-litigant may now file his notice of appeal either within fifteen days from receipt of the
original decision or within fifteen days from the receipt of the order denying the motion for
reconsideration.
In De los Santos v. Vda. de Mangubat, the Supreme Court also applied the same principle
of fresh period rule, expostulating that procedural law refers to the adjective law which prescribes
rules and forms of procedure in order that courts may be able to administer justice. Procedural
laws do not come within the legal conception of a retroactive law, or the general rule against the
retroactive operation of statutes. The "fresh period rule" is irrefragably procedural, prescribing
the manner in which the appropriate period for appeal is to be computed or determined and,
therefore, can be made applicable to actions pending upon its effectivity, without danger of
violating anyone else rights. (SUMIRAN vs. DAMASO, G.R. No. 162518, August, 19, 2009, Third
Division, Peralta, J.).

When appeal to be taken;

Fresh period rule
Criminal Procedure

Sec. 6. When appeal to be taken. – An appeal must be taken within fifteen (15) days from
promulgation of the judgment or from notice
of the final order appealed from. This period for perfecting an appeal shall be
suspended from the time a motion for new trial or
reconsideration is filed until notice of the order overruling the motion has been served
upon the accused or his counsel at which time the balance of the period begins to run.

NOTE: The period of appeal seems to have been amended by the SC ruling in
Domingo Neypes v. CA, GR 141524, September 14, 2005.

“To standardize the appeal periods provided in the Rules and to afford litigants fair
opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15
days within which to file the notice of appeal in the Regional Trial Court, counted from receipt
of the order dismissing a motion for a new trial or motion for reconsideration.”

“Henceforth, this “fresh period rule” shall also apply to Rule 40 governing appeals from the
Municipal Trial Courts to the Regional Trial Courts; Rule
42 on petitions for review from the Regional Trial Courts to the Court of Appeals;
Rule 43 on appeals from quasi-judicial agencies[31] to the Court
of Appeals and Rule 45 governing appeals by certiorari to the Supreme
Court.[32] The new rule aims to regiment or make the appeal period
uniform, to be counted from receipt of the order denying the motion for
new trial, motion for reconsideration (whether full or partial) or any final order or
resolution.”

Although the SC has made this ruling on a civil case, it is submitted that
such if the Court has applied this rule to all other appeals involving civil cases, with
more reason should the defendant in a criminal case be given ample time to file his appeal.

WHEN IS APPEAL PERFECTED?

 Appeals in criminal cases are perfected when the interested party or parties have personally
or through their attorney filed with the clerk of court a written notice expressly stating the
appeal

WHAT IS THE EFFECT OF

PERFECTION OF AN APPEAL?
 When an appeal has been perfected, the court a quo loses jurisdiction
WHAT IS THE DIFFERENCE
BETWEEN THE APPEAL OF A
JUDGMENT AND THE APPEAL OF
AN ORDER?
 The appeal from judgment must be perfected within 15 days from promulgation
 The appeal from an order should be perfected within 15 days from notice of final order

Remedy against judgment:

WOOD TECHNOLOGY CORPORATION, CHI TIM CORDOVA AND ROBERT

TIONG KING YOUNG vs. EQUITABLE BANKING CORPORATION
G.R. No. 153867 February 17, 2005
At the outset, we must stress the Courts policy that cases and controversies should be promptly
and expeditiously resolved. The Rules of Court seeks to shorten the procedure in order to allow
the speedy disposition of a case. Specifically, we have rules on demurrer to evidence, judgment
on the pleadings, and summary judgments. In all these instances, a full blown trial is dispensed
with and judgment is rendered on the basis of the pleadings, supporting affidavits, depositions
and admissions of the parties.[8]

In this case, at issue is the propriety and validity of a judgment on the pleadings. A judgment
on the pleadings is proper when an answer fails to tender an issue, or otherwise admits the
material allegations of the adverse partys pleading.[9]

Both the RTC and Court of Appeals recognize that issues were raised by petitioners in their
Answer before the trial court. This may be gleaned from their decisions which we partly quote
below:

RTCs ORDER:

...

Defendants raised the following defenses:

a. That the contract is one of adhesion and they were forced to sign the same;

b. That the interest [8.75% per annum], penalties and fees are unconscionable;
 c. That plaintiffs demand is premature.[10]

...

Court of Appeals DECISION:

. . . They neither raise genuine issues of fact needing submission of evidence. Rather, these
issues hoist questions concerning the proper interpretation of the provisions of the promissory
note and the surety agreement[11] (Emphasis supplied.)

Petitioners also contend that their Answer below raised issues that are very material and
genuine.[12] Hence, according to petitioners, judgment on the pleadings was not proper.
Respondent, on the other hand, argues that the special and affirmative defenses raised by
Petitioners are not genuine issues that needed a hearing.[13]

We note now that (1) the RTC knew that the Answer asserted special and affirmative defenses;
(2) the Court of Appeals recognized that certain issues were raised, but they were not genuine
issues of fact; (3) petitioners insisted that they raised genuine issues; and (4) respondent argued
that petitioners defenses did not tender genuine issues. However, whether or not the issues
raised by the Answer are genuine is not the crux of inquiry in a motion for judgment on the
pleadings. It is so only in a motion for summary judgment.[14] In a case for judgment on the
pleadings, the Answer is such that no issue is raised at all. The essential question in such a case
is whether there are issues generated by the pleadings.[15] This is the distinction between a
proper case of summary judgment, compared to a proper case for judgment on the pleadings.
We have explained this vital distinction in Narra Integrated Corporation v. Court of Appeals,[16]
thus,

The existence or appearance of ostensible issues in the pleadings, on the one hand, and their
sham or fictitious character, on the other, are what distinguish a proper case for summary
judgment from one for a judgment on the pleadings. In a proper case for judgment on the
pleadings, there is no ostensible issue at all because of the failure of the defending partys answer
to raise an issue. On the other hand, in the case a of a summary judgment, issues apparently
existi.e. facts are asserted in the complaint regarding which there is as yet no admission,
disavowal or qualification; or specific denials or affirmative defenses are in truth set out in the
answerbut the issues thus arising from the pleadings are sham, fictitious or not genuine, as
shown by affidavits, depositions, or admissions. . . . (Underscoring and emphasis supplied.)

Indeed, petitioners Answer apparently tendered issues. While it admitted that WTC obtained
the loan, that Cordova and Young signed the promissory note and that they bound themselves
as sureties for the loan, it also alleged special and affirmative defenses that the obligation had
not matured and that the promissory note and surety agreement were contracts of adhesion.

Applying the requisites of a judgment on the pleadings vis--vis a summary judgment, the
judgment rendered by the RTC was not a judgment on the pleadings, but a summary judgment.
Although the Answer apparently raised issues, both the RTC and the Court of Appeals after
considering the parties pleadings, petitioners admissions and the documents attached to the
Complaint, found that the issues are not factual ones requiring trial, nor were they genuine
issues.

Summary judgment[17] is a procedure aimed at weeding out sham claims or defenses at an

early stage of the litigation. The proper inquiry in this regard would be whether the affirmative
defenses offered by petitioners constitute genuine issues of fact requiring a full-blown trial.[18]
In a summary judgment, the crucial question is: are the issues raised by petitioners not genuine
 so as to justify a summary judgment?[19] A genuine issue means an issue of fact which calls for
the presentation of evidence, as distinguished from an issue which is fictitious or contrived, an
issue that does not constitute a genuine issue for trial.[20]

G.R. No. 199283.

June 9, 2014.*
JULIET VITUG MADARANG and ROMEO BARTOLOME,represented by his attorneys-in-fact
and acting in theirpersonal capacities, RODOLFO and RUBY BARTOLOME,petitioners,
vs
. SPOUSES JESUS D. MORALES andCAROLINA N. MORALES, respondents.
Remedial Law; Civil Procedure; Judgments; Relief fromJudgments; The double period required
under Section 3, Rule 38 is jurisdictional and should be strictly complied with. A petition forrelief
from judgment filed beyond the reglementary period isdismissed outright.
—Rule 38, Section 3 of the 1997 Rules of CivilProcedure is clear that the 60-day period must
be counted afterpetitioner learns of the judgment or final order. The periodcounted from the
finality

A petition for relief from judgment must

be filed within 60 days after petitioner

learns of the judgment, final order, or

proceeding and within six (6) months

from entry of judgment or final order

This court agrees that the petition for relief from judgment was filed out of time. However, the trial
court erred in counting the 60-day period to file a petition for relief from the date of finality of the trial
court’s decision. Rule 38, Section 3 of the 1997 Rules of Civil Procedure is clear that the 60-day period
must be counted after petitioner learns of the judgment or final order. The period counted from the
finality of judgment or final order is the six-month period. Section 3, Rule 38 of the 1997 Rules of Civil
Procedure states:

Sec. 3. Time for filing petition; contents and verification.– A petition provided for in either of the
preceding sections of this Rule must be verified, filed within sixty (60) days after petitioner learns of the
judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such
judgment or final order was entered, or such proceeding was taken; and must be accompanied with
affidavits, showing the fraud, accident, mistake or excusable negligence relied upon and the facts
constituting the petitioner’s good and substantial cause of action or defense, as the case may be.
(Emphasis supplied)
The double period required under Section 3, Rule 38 is jurisdictional and should be strictly complied
with.26 A petition for relief from judgment filed beyond the reglementary period is dismissed outright.
This is because a petition for relief from judgment is an exception to the public policy of immutability of
final judgments.27

In Gesulgon v. National Labor Relations Commission,28 the Labor Arbiter ordered Mariscor Corporation
to reinstate Edwin Gesulgon as chief cook on board one of its vessels. Mariscor Corporation had notice
of the decision on March 27, 1987, but it did not appeal the Labor Arbiter’s decision. Since decisions of
Labor Arbiters become final 10 calendar days from receipt of the decision, the decision became final on
April 6, 1987.

On February 28, 1989, Mariscor Corporation filed a motion to set aside judgment with the National
Labor Relations Commission. The Commission treated the motion as a petition for relief from judgment
and granted the petition for relief from judgment. It remanded the case to the Labor Arbiter for further
proceedings.

This court set aside the order granting the petition for relief from judgment for having been filed beyond
the double period required under Section 3, Rule 38 of the 1997 Rules of Civil Procedure. This court
explained:

A party filing a petition for relief from judgment must strictly comply with two (2) reglementary periods:
(a) the petition must be filed within sixty (60) days from knowledge of the judgment, order or other
proceeding to be set aside; and (b) within a fixed period of six (6) months from entry of such judgment,
order or other proceeding. Strict compliance with these periods is required because provision for a
petition for relief from judgment is a final act of liberality on the part of the State, which remedy cannot
be allowed to erode any further the fundamental principle that a judgment, order or proceeding must,
at some definite time, attain finality in order at last to put an end to litigation. In Turqueza v. Hernando,
this Court stressed once more that:

. . . the doctrine of finality of judgments is grounded on fundamental considerations of public policy and
sound practice that at the risk of occasional error, the judgments of courts must become final at some
definite date fixed by law. The law gives an exception or ‘last chance’ of a timely petition for relief from
judgment within the reglementary period (within 60 days from knowledge and 6 months from entry of
judgment) under Rule 38, supra, but such grave period must be taken as ‘absolutely fixed, in extendible,
never interruptedand cannot be subjected to any condition or contingency. Because the period fixed is
itself devised to meet a condition or contingency (fraud, accident, mistake or excusable neglect), the
equitable remedy is an act of grace, as it were, designed to give the aggrieved party another and last
chance’ and failure to avail of such last chance within the grace period fixed by the statute or Rules of
Court is fatal . . . .29 (Emphasis in the original)

In Spouses Reyes v. Court of Appeals and Voluntad,30 the Regional Trial Court of Bulacan rendered a
decision against the Spouses Reyes’ predecessors-in-interest. The decision became final on December 8,
1995. The Spouses Reyes had notice of the decision on May 30, 1997 when they received a Court of
Appeals order directing them to comment on the petition for certiorari filed by respondents heirs of
Voluntad. Attached to the Court of Appeals’ order was a copy of the trial court’s decision.
On June 21, 2000, the Spouses Reyes filed a petition for relief from judgment against the Regional Trial
Court of Bulacan’s decision. This court affirmed the dismissal of the petition for relief from judgment for
having been filed out of time and said:

It should be noted that the 60-day period from knowledge of the decision, and the 6-month period from
entry of judgment, are both inextendible and uninterruptible. We have also time and again held that
because relief from a final and executory judgment is really more of an exception than a rule due to its
equitable character and nature, strict compliance with these periods, which are definitely jurisdictional,
must always be observed.31 (Emphasis in the original)

In this case, petitioners, through counsel, received a copy of the trial court’s decision on January 29,
2010. They filed a motion for reconsideration and an amended motion for reconsideration, which
similarly alleged the following:

The defendants, by the undersigned counsel, to this Honorable Court, respectfully allege:

1. That on January 29, 2010, they received the decision in the above entitled case rendered by this
Honorable Court, dated December 22, 2009;

2. That with due respect to the Honorable Court, the decision is contrary to law & to the defendants[’]
evidence presented in court. Hence, this urgent motion.

WHEREFORE, it is most respectfully prayed of this Honorable Court, that the decision sought to be
reversed be reconsidered and another one be rendered in favor of the defendants.32

Although petitioners filed a motion for reconsideration and amended motion for reconsideration, these
motions were pro forma for not specifying the findings or conclusions in the decision that were not
supported by the evidence or contrary to law.33 Their motion for reconsideration did not toll the 15-day
period to appeal.34

Petitioners cannot argue that the period to appeal should be counted from August 11, 2011, the day
petitioners personally received a copy of the trial court’s decision. Notice of judgment on the counsel of
record is notice to the client.35 Since petitioners’ counsel received a copy of the decision on January 29,
2010, the period to appeal shall be counted from that date.

Thus, the decision became final 15 days after January 29, 2010, or on February 13, 2010. Petitioners had
six (6) months from February 13, 2010, or until August 12, 2010, to file a petition for relief from
judgment.

Since petitioners filed their petition for relief from judgment on September 24, 2010, the petition for
relief from judgment was filed beyond six (6) months from finality of judgment. The trial court should
have denied the petition for relief from judgment on this ground.

1. Remedy against judgment:

PINAUSUKAN SEAFOOD HOUSE, ROXAS BOULEVARD, INC., PETITIONER, VS.
FAR EAST BANK & TRUST COMPANY, NOW BANK OF THE PHILIPPINE ISLANDS
AND HECTOR IL. GALURA, RESPONDENTS

1.
Nature and statutory requirements for
an action to annul a judgment or final order

The remedy of annulment of judgment has been long authorized and

sanctioned in the Philippines. In Banco Español-Filipino v. Palanca,[14] of
1918 vintage, the Court, through Justice Street, recognized that there were
only two remedies available under the rules of procedure in force at the
time to a party aggrieved by a decision of the Court of First Instance (CFI)
that had already attained finality, namely: that under Sec. 113, Code of Civil
Procedure, which was akin to the petition for relief from judgment under
Rule 38, Rules of Court; and that under Sec. 513, Code of Civil Procedure,
which stipulated that the party aggrieved under a judgment rendered by the
CFI "upon default" and who had been "deprived of a hearing by fraud,
accident, mistake or excusable negligence" and the CFI had "finally
adjourned so that no adequate remedy exists in that court" could "present
his petition to the Supreme Court within sixty days after he first learns of
the rendition of such judgment, and not thereafter, setting forth the facts
and praying to have judgment set aside."[15] It categorically ruled out a mere
motion filed for that purpose in the same action as a proper remedy.

The jurisdiction over the action for the annulment of judgment had been
lodged in the CFI as a court of general jurisdiction on the basis that the
subject matter of the action was not capable of pecuniary estimation.
Section 56, paragraph 1, of Act No. 136 (An Act providing for the
Organization of Courts in the Philippine Islands), effective on June 11,
1901, vested original jurisdiction in the CFI over "all civil actions in which
the subject of litigations is not capable of pecuniary estimation." The CFI
retained its jurisdiction under Section 44(a) of Republic Act No. 296 (The
Judiciary Act of 1948), effective on June 17, 1948, which contained a
similar provision vesting original jurisdiction in the CFI over "all civil
actions in which the subject of the litigation is not capable of pecuniary
estimation."

In the period under the regimes of Act No. 136 and Republic Act No. 296,
the issues centered on which CFI, or branch thereof, had the jurisdiction
over the action for the annulment of judgment. It was held in Mas v.
Dumara-og[16] that "the power to open, modify or vacate a judgment is not
only possessed by, but is restricted to the court in which the judgment was
rendered." In J.M. Tuason & Co., Inc. v. Torres,[17] the Court declared that
"the jurisdiction to annul a judgment of a branch of the Court of First
Instance belongs solely to the very same branch which rendered the
judgment." In Sterling Investment Corporation v. Ruiz,[18] the Court
enjoined a branch of the CFI of Rizal from taking cognizance of an action
filed with it to annul the judgment of another branch of the same court.

In Dulap v. Court of Appeals,[19] the Court observed that the philosophy

underlying the pronouncements in these cases was the policy of judicial
stability, as expressed in Dumara-og, to the end that the judgment of a
court of competent jurisdiction could not be interfered with by any court of
concurrent jurisdiction. Seeing that the pronouncements in Dumara-og,
J.M. Tuason & Co., Inc. and Sterling Investment confining the jurisdiction
to annul a judgment to the court or its branch rendering the judgment
would "practically amount to judicial legislation," the Court found the
occasion to re-examine the pronouncements. Observing that the plaintiff's
cause of action in an action to annul the judgment of a court "springs from
the alleged nullity of the judgment based on one ground or another,
particularly fraud, which fact affords the plaintiff a right to judicial
interference in his behalf," and that that the two cases were distinct and
separate from each other because "the cause of action (to annul judgment)
is entirely different from that in the action which gave rise to the judgment
sought to be annulled, for a direct attack against a final and executory
judgment is not incidental to, but is the main object of, the proceeding," the
Court concluded that "there is no plausible reason why the venue of the
action to annul the judgment should necessarily follow the venue of the
previous action" if the outcome was not only to violate the existing rule on
venue for personal actions but also to limit the opportunity for the
application of such rule on venue for personal actions.[20] The Court
observed that the doctrine under Dumara-og, J.M. Tuason & Co.,
Inc. and Sterling Investment could then very well "result in the difficulties
precisely sought to be avoided by the rules; for it could be that at the time of
the filing of the second action for annulment, neither the plaintiff nor the
defendant resides in the same place where either or both of them did when
the first action was commenced and tried," thus unduly depriving the
parties of the right expressly given them by the Rules of Court "to change or
transfer venue from one province to another by written agreement a right
conferred upon them for their own convenience and to minimize their
expenses in the litigation and renders innocuous the provision on waiver of
improper venue in Section 4 (of Rule 4 of the Revised Rules of
Court)."[21] The Court eventually ruled:

Our conclusion must therefore be that a court of first instance or a branch

thereof has the authority and jurisdiction to take cognizance of, and to act in,
a suit to annul a final and executory judgment or order rendered by another
court of first instance or by another branch of the same court. The policy of
judicial stability, which underlies the doctrine laid down in the cases of
Dumara-og, J.M. Tuason & Co., Inc. and Sterling Investment Corporation, et
al., supra, should be held subordinate to an orderly administration of justice
based on the existing rules of procedure and the law.[22] x x x

In 1981, the Legislature enacted Batas Pambansa Blg. 129 (Judiciary

Reorganization Act of 1980).[23] Among several innovations of this
legislative enactment was the formal establishment of the annulment of a
judgment or final order as an action independent from the generic
classification of litigations in which the subject matter was not capable of
pecuniary estimation, and expressly vested the exclusive original
jurisdiction over such action in the CA.[24] The action in which the subject of
the litigation was incapable of pecuniary estimation continued to be under
the exclusive original jurisdiction of the RTC, which replaced the CFI as the
court of general jurisdiction.[25] Since then, the RTC no longer had
jurisdiction over an action to annul the judgment of the RTC, eliminating
all concerns about judicial stability. To implement this change, the Court
introduced a new procedure to govern the action to annul the judgment of
the RTC in the 1997 revision of the Rules of Court under Rule 47, directing
in Section 2 thereof that "[t]he annulment may be based only on the
grounds of extrinsic fraud and lack of jurisdiction."[26]

The Court has expounded on the nature of the remedy of annulment of

judgment or final order in Dare Adventure Farm Corporation v. Court of
Appeals,[27] viz:

A petition for annulment of judgment is a remedy in equity so exceptional in

nature that it may be availed of only when other remedies are wanting, and
only if the judgment, final order or final resolution sought to be annulled was
rendered by a court lacking jurisdiction or through extrinsic fraud. Yet, the
remedy, being exceptional in character, is not allowed to be so easily and
readily abused by parties aggrieved by the final judgments, orders or
resolutions. The Court has thus instituted safeguards by limiting the grounds
for the annulment to lack of jurisdiction and extrinsic fraud, and by
prescribing in Section 1 of Rule 47 of the Rules of Courtthat the petitioner
should show that the ordinary remedies of new trial, appeal, petition for
relief or other appropriate remedies are no longer available through no fault
of the petitioner. A petition for annulment that ignores or disregards any of
the safeguards cannot prosper.

The attitude of judicial reluctance towards the annulment of a judgment,

final order or final resolution is understandable, for the remedy disregards
the time-honored doctrine of immutability and unalterability of final
judgments, a solid corner stone in the dispensation of justice by the courts.
The doctrine of immutability and unalterability serves a two-fold purpose,
namely: (a) to avoid delay in the administration of justice and thus,
procedurally, to make orderly the discharge of judicial business; and (b) to
put an end to judicial controversies, at the risk of occasional errors, which is
precisely why the courts exist. As to the first, a judgment that has acquired
finality becomes immutable and unalterable and is no longer to be modified
in any respect even if the modification is meant to correct an erroneous
conclusion of fact or of law, and whether the modification is made by the
court that rendered the decision or by the highest court of the land. As to the
latter, controversies cannot drag on indefinitely because fundamental
considerations of public policy and sound practice demand that the rights
and obligations of every litigant must not hang in suspense for an indefinite
period of time.

The objective of the remedy of annulment of judgment or final order is to

undo or set aside the judgment or final order, and thereby grant to the
petitioner an opportunity to prosecute his cause or to ventilate his defense.
If the ground relied upon is lack of jurisdiction, the entire proceedings are
set aside without prejudice to the original action being refiled in the proper
court.[28] If the judgment or final order or resolution is set aside on the
ground of extrinsic fraud, the CA may on motion order the trial court to try
the case as if a timely motion for new trial had been granted therein.[29] The
remedy is by no means an appeal whereby the correctness of the assailed
judgment or final order is in issue; hence, the CA is not called upon to
address each error allegedly committed by the trial court.[30]

Given the extraordinary nature and the objective of the remedy of

annulment of judgment or final order, Pinausukan must be mindful of and
should closely comply with the following statutory requirements for the
remedy as set forth in Rule 47 of the Rules of Court.

The first requirement prescribes that the remedy is available only when the
petitioner can no longer resort to the ordinary remedies of new trial,
appeal, petition for relief or other appropriate remedies through no fault of
the petitioner.[31] This means that the remedy, although seen as "a last
remedy,"[32] is not an alternative to the ordinary remedies of new trial,
appeal and petition for relief. The petition must aver, therefore, that the
petitioner failed to move for a new trial, or to appeal, or to file a petition for
relief without fault on his part. But this requirement to aver is not imposed
when the ground for the petition is lack of jurisdiction (whether alleged
singly or in combination with extrinsic fraud), simply because the judgment
or final order, being void, may be assailed at any time either collaterally or
by direct action or by resisting such judgment or final order in any action or
proceeding whenever it is invoked, unless the ground of lack of jurisdiction
is meanwhile barred by laches.[33]

The second requirement limits the ground for the action of annulment of
judgment to either extrinsic fraud or lack of jurisdiction.

Not every kind of fraud justifies the action of annulment of judgment. Only
extrinsic fraud does. Fraud is extrinsic, according to Cosmic Lumber
Corporation v. Court of Appeals,[34] "where the unsuccessful party has been
prevented from exhibiting fully his case, by fraud or deception practiced on
him by his opponent, as by keeping him away from court, a false promise of
a compromise; or where the defendant never had knowledge of the suit,
being kept in ignorance by the acts of the plaintiff; or where an attorney
fraudulently or without authority connives at his defeat; these and similar
cases which show that there has never been a real contest in the trial or
hearing of the case are reasons for which a new suit may be sustained to set
aside and annul the former judgment and open the case for a new and fair
hearing."

The overriding consideration when extrinsic fraud is alleged is that the

fraudulent scheme of the prevailing litigant prevented the petitioner from
having his day in court.[35] Nonetheless, extrinsic fraud shall not be a valid
ground if it was availed of, or could have been availed of, in a motion for
new trial or petition for relief.[36]

In contrast, intrinsic fraud refers to the acts of a party at a trial that

prevented a fair and just determination of the case, but the difference is
that the acts or things, like falsification and false testimony, could have
been litigated and determined at the trial or adjudication of the case.[37] In
other words, intrinsic fraud does not deprive the petitioner of his day in
court because he can guard against that kind of fraud through so many
means, including a thorough trial preparation, a skillful cross-examination,
resorting to the modes of discovery, and proper scientific or forensic
applications. Indeed, forgery of documents and evidence for use at the trial
and perjury in court testimony have been regarded as not preventing the
participation of any party in the proceedings, and are not, therefore,
constitutive of extrinsic fraud.[38]

Lack of jurisdiction on the part of the trial court in rendering the judgment
or final order is either lack of jurisdiction over the subject matter or nature
of the action, or lack of jurisdiction over the person of the petitioner. The
former is a matter of substantive law because statutory law defines the
jurisdiction of the courts over the subject matter or nature of the action.
The latter is a matter of procedural law, for it involves the service of
summons or other process on the petitioner. A judgment or final order
issued by the trial court without jurisdiction over the subject matter or
nature of the action is always void, and, in the words of Justice Street
in Banco Español-Filipino v. Palanca,[39] "in this sense it may be said to be
a lawless thing, which can be treated as an outlaw and slain at sight, or
ignored wherever and whenever it exhibits its head."[40] But the defect of
lack of jurisdiction over the person, being a matter of procedural law, may
be waived by the party concerned either expressly or impliedly.

The third requirement sets the time for the filing of the action. The action,
if based on extrinsic fraud, must be filed within four years from the
discovery of the extrinsic fraud; and if based on lack of jurisdiction, must be
brought before it is barred by laches or estoppel.

Laches is the failure or neglect for an unreasonable and unexplained length

of time to do that which by exercising due diligence could nor should have
been done earlier; it is negligence or omission to assert a right within a
reasonable time, warranting a presumption that the party entitled to assert
it either has abandoned it or declined to assert it.[41] Its other name is stale
demands, and it is based upon grounds of public policy that requires, for
the peace of society, the discouragement of stale claims and, unlike the
statute of limitations, is not a mere question of time but is principally a
question of the inequity or unfairness of permitting a right or claim to be
enforced or asserted.[42] The existence of four elements must be shown in
order to validate laches as a defense, to wit: (a) conduct on the part of the
defendant, or of one under whom a claim is made, giving rise to a situation
for which a complaint is filed and a remedy sought; (b) delay in asserting
the rights of the complainant, who has knowledge or notice of the
defendant's conduct and has been afforded an opportunity to institute a
suit; (c) lack of knowledge or notice on the part of the defendant that the
complainant will assert the right on which the latter has based the suit; and
(d) injury or prejudice to the defendant in the event that the complainant is
granted a relief or the suit is not deemed barred.[43]

Estoppel precludes a person who has admitted or made a representation

about something as true from denying or disproving it against anyone else
relying on his admission or representation.[44] Thus, our law on evidence
regards estoppel as conclusive by stating that "[w]henever a party has, by
his own declaration, act, or omission, intentionally and deliberately led
another to believe a particular thing true, and to act upon such belief, he
cannot, in any litigation arising out of such declaration, act or omission, be
permitted to falsify it."[45]

The fourth requirement demands that the petition should be verified, and
should allege with particularity the facts and the law relied upon for
annulment, as well as those supporting the petitioner's good and
substantial cause of action or defense, as the case may be.[46] The need for
particularity cannot be dispensed with because averring the circumstances
constituting either fraud or mistake with particularity is a universal
requirement in the rules of pleading.[47] The petition is to be filed in seven
clearly legible copies, together with sufficient copies corresponding to the
number of respondents, and shall contain essential submissions,
specifically: (a) the certified true copy of the judgment or final order or
resolution, to be attached to the original copy of the petition intended for
the court and indicated as such by the petitioner;[48] (b) the affidavits of
witnesses or documents supporting the cause of action or defense; and (c)
the sworn certification that the petitioner has not theretofore commenced
any other action involving the same issues in the Supreme Court, the CA or
the different divisions thereof, or any other tribunal or agency; if there is
such other action or proceeding, he must state the status of the same, and if
he should thereafter learn that a similar action or proceeding has been filed
or is pending before the Supreme Court, the CA, or different divisions
thereof, or any other tribunal or agency, he undertakes to promptly inform
the said courts and other tribunal or agency thereof within five days
therefrom.[49]

The purpose of these requirements of the sworn verification and the

particularization of the allegations of the extrinsic fraud in the petition, of
the submission of the certified true copy of the judgment or final order or
resolution, and of the attachment of the affidavits of witnesses and
documents supporting the cause of action or defense is to forthwith bring
all the relevant facts to the CA's cognizance in order to enable the CA to
determine whether or not the petition has substantial merit. Should it
find prima facie merit in the petition, the CA shall give the petition due
course and direct the service of summons on the respondent; otherwise, the
CA has the discretion to outrightly dismiss the petition for annulment.[50]

1. Provisional remedies:
DAVAO LIGHT & POWER CO., INC. Vs. THE COURT OF APPEALS,
QUEENSLAND HOTEL or MOTEL or QUEENSLAND TOURIST INN, and
TEODORICO ADARNA

Page 163 reviewer

Davao Light & Power Co., Inc. vs. Court of Appeals

A preliminary attachment may be defined, paraphrasing the Rules of Court, as the provisional
remedy in virtue of which a plaintiff or other party may, at the commencement of the action or at any
time thereafter, have the property of the adverse party taken into the custody of the court as security
for the satisfaction of any judgment that may be recovered. 15 It is a remedy which is purely statutory
in respect of which the law requires a strict construction of the provisions granting it. 16 Withal no
principle, statutory or jurisprudential, prohibits its issuance by any court before acquisition of
jurisdiction over the person of the defendant.

Rule 57 in fact speaks of the grant of the remedy "at the commencement of the action or at any time
thereafter." 17The phase, "at the commencement of the action," obviously refers to the date of the
filing of the complaint — which, as above pointed out, is the date that marks "the commencement of
the action;" 18 .and the reference plainly is to a time before summons is served on the defendant, or
even before summons issues. What the rule is saying quite clearly is that after an action is properly
commenced — by the filing of the complaint and the payment of all requisite docket and other fees
— the plaintiff may apply for and obtain a writ of preliminary attachment upon fulfillment of the
pertinent requisites laid down by law, and that he may do so at any time, either before or after
service of summons on the defendant. And this indeed, has been the immemorial practice
sanctioned by the courts: for the plaintiff or other proper party to incorporate the application for
attachment in the complaint or other appropriate pleading (counter-claim, cross-claim, third-party
claim) and for the Trial Court to issue the writ ex-parte at the commencement of the action if it finds
the application otherwise sufficient in form and substance.

Civil Procedure; Preliminary attachment may be validly applied for and granted before defendant
is summoned or is heard from.

—Rule 57 xxx speaks ofthe grant of the remedy “at the commencement of the action or at any
timethereafter.” The phrase, “at the commencement of the action,” obviously refers tothe date of the
filing of the complaint—which, as above pointed out, is the datethat marks “the commencement of the
action;” and the reference plainly is to atime before summons is served on the defendant, or even
before summons issues.

What the rule is saying quite clearly is that after an action is properlycommenced—by the filing of the
complaint and the payment of all requisitedocket and other fees—the plaintiff may apply for and obtain
a writ ofpreliminary attachment upon fulfillment of the pertinent requisites laid down bylaw, and that
he may do so at any time, either before or after service of summonson the defendant. And this indeed,
has been the immemorial practice sanctionedby the courts: for the plaintiff or other proper party to
incorporate the applicationfor attachment in the complaint or other appropriate pleading
(counterclaim,cross-claim, third-party claim) and for the Trial Court to issue the writ ex- parte at the
commencement of the action if it finds. the application otherwise sufficient in form and substance.

Same; Writs of attachment may properly issue ex parte.

 —For the guidance ofall concerned, the Court reiterates and reaffirms the proposition that writs
ofattachment may properly issue ex parte provided that the Court is satisfied thatthe relevant requisites
therefor have been fulfilled by the applicant, although itmay, in its discretion, require prior hearing on
the application with notice to the

Q: On May 2, 1992, Precision, Inc. filed a verified complaint for recovery of a sum of money against
Summa, Inc. The complaint contained an ex-parteapplication for a writ of preliminary
attachment.On May 3, 1993, the trial court issued an order granting the ex-parteapplication and fixing
the attachment bond at P2 Million.On May 8, 1992, the attachment bond having been submitted
by Precision, Inc., the writ of preliminary attachment was issued.On May 9, 1992, summons
together with a copy of the complaint, the writ of preliminary attachment and a copy of
attachment bond, was served on Summa, Inc., and pursuant to the writ, the sheriff attached properties
belongingto Summa. Inc.On July 6. 1992, Summa, Inc. filed a motion to discharge the attachment
for alleged lack of jurisdiction to Issue the same because, at the time the order of attachment
and the writ of preliminary attachment were issued (on May 3 and 8, 1992, respectively), the court
had not yet acquired Jurisdiction over the person of Summa, Inc. It argued that a writ of preliminary
attachment may not issue ex-parteagainst a defendant before acquisition of jurisdiction over the
latter s person by service ofsummons or his voluntary submission to the court’s authority.Should the
motion be granted? Why? (1993 Bar Question)Answer:

No. because a writ of preliminary attachment may be issued ex-parte against a defendant before
acquisition of jurisdiction over the latter’s person by service of summons or his voluntary submission
to the Court’s authority. Sec. 1 of Rule 57 provides that the remedy may be granted at the
commencement of the action or at any time thereafter. However, the writ does not bind and
affectthe defendant until and unless jurisdiction over his person is eventually obtained by the
court. Hence, when the summons, together with a copy of the complaint, the writ of
preliminary attachment and a copy of the attachment bond, was served on the defendant, the
sheriff validly attached properties belonging to Summa, Inc. [Davao Light & Power Co., Inc.
vs.Court of Appeals,204 SCRA 343; Cuartero vs. Court of Appeals.212 SCRA 260)

(3)The proper remedy where there is payment is a motion to dismiss under Section 1 (h) Rule 16. A
motion to discharge on the ground that the writ was improvidently issued will not lie, since such a
motion would be tantamount to trial on the merits of the action which cannot be ventilated at a mere
hearing of the motion instead of a regular trial.. The writ is only ancillary to the main case. ( Sec. 13,
Rule 57, 1997 Rules of Civil Procedure, Mindanao Savings Loans Assoc.. Inc. v. C.A., 172 SCRA 480
[1989]; Davao Light&. Power Co. v. Court of Appeals204 SCRA 343 [1991])
YANG V. VALDEZ (REMEDIAL)
A bond that is required to be given by law is commonly understood to refer to an obligation
or undertaking in writing that is sufficiently secured. It is not indispensably necessary,
however, that the obligation of the bond be secured or supported by cash or personal
property or real property or the obligation of a surety other than the person giving the
bond.

The sufficiency of a bond is a matter addressed to the sound discretion of the court which
must approve the bond. In the case at bar, the replevin bond given by respondent spouses
was properly secured by the sureties themselves who declared their solvency and capacity
to answer for the undertaking assumed.

The provisional remedy of REPLEVIN is in the nature of a possessory action and the
applicant who seeks immediate possession of the property involved need not be holder of
the legal title to the property. It suffices if at the time he applies for a writ of replevin, he is
entitled to the possession thereof.

A defendant in a replevin suit may demand return of possession of the property replevied by
filing a REDELIVERY BOND within the periods specified in Sections 5 and 6 of Rule 60. Under
Section 5, petitioner may at any time before the delivery of property to the plaintiff, require
the return of the property; in Section 6, he may do so within 5 days after the taking of the
property by the officer. Both periods are mandatory in character.

The decisional principle on the filing of counter replevin bond to entitle the defendant to the
redelivery or retaining possession of the property, is compliance with all the conditions
precedent pursuant to the rules, and failure to comply therewith entitles plaintiff to
possession and the initial steps in obtaining redelivery must be taken within the time limit
provided therein.

the prescriptive period for filing a counter-replevin bond must be counted from the actual taking of
the property by the sheriff,

A defendant in a replevin suit may demand return of possession of the property replevied by
filing a redelivery bond within 5 days; otherwise, the sheriff will release the property to the
third party claimant.

What is the duty of the sheriff after the court issues an order?

● Upon receipt of the court order. The sheriff must:

1. Serve a copy of the order, copy of application, affidavit and bond on the adverse party;

2. Take the custody of the property and must keep it in a secure place;
3. Within 5 days from taking of the property, the sheriff shall wait for the move of the adverse party.
If the adverse party does not object to the sufficiency of the bond after said period or performs an act
to effect the return to him of the property taken, the property shall be delivered to the applicant. (Sec
4, Rule 60)

● The law presumes that every possessor is a possessor in good faith. He is entitled to be respected and
protected in his possession as if he were the true owner thereof until a competent court rules otherwise.
Before a final judgment, property cannot be seized unless by virtue of some provision of law. The
Rules of Court, under Rule 60, authorizes such seizure in cases of replevin. However, a person seeking
a remedy in an action for replevin must follow the course laid down in the statute, since the remedy is
penal in nature. When no attempt is made to comply with the provisions of the law relating to seizure
in this kind of action, the writ or order allowing the seizure is erroneous and may be set aside on motion
by the adverse party. Be it noted, however, that a motion to quash the writ of replevin goes to the
technical regularity of procedure, and not to the merits of the case in the principal action.

The process regarding the execution of the writ of replevin in Section 4 of Rule 60 is unambiguous:
the sheriff, upon receipt of the writ of replevin and prior to the taking of the property, must serve a
copy thereof to the adverse party together with the application, the affidavit of merit, and the replevin
bond. The reasons are simple, i.e., to provide proper notice to the adverse party that his property is
being seized in accordance with the courts order upon application by the other party, and ultimately to
allow the adverse party to take the proper remedy consequent thereto.

Service of the writ upon the adverse party is mandatory in line with the constitutional guaranty on
procedural due process and as safeguard against unreasonable searches and seizures. If the writ was
not served upon the adverse party but was instead merely handed to a person who is neither an agent
of the adverse party nor a person authorized to receive court processes on his behalf, the service thereof
is erroneous and is, therefore, invalid, running afoul of the statutory and constitutional requirements.
The service is likewise invalid if the writ of replevin was served without the required documents. Under
these circumstances, no right to seize and to detain the property shall pass, the act of the sheriff being
both unlawful and unconstitutional.

The trial court is reminded that not only should the writ or order of replevin comply with all the
requirements as to matters of form or contents prescribed by the Rules of Court.[43] The writ must
also satisfy proper service in order to be valid and effective: i.e. it should be directed to the officer who
is authorized to serve it; and it should be served upon the person who not only has the possession or
custody of the property involved but who is also a party or agent of a party to the action. Consequently,
a trial court is deemed to have acted without or in excess of its jurisdiction with respect to the ancillary
action of replevin if it seizes and detains a personalty on the basis of a writ that was improperly
served. (Rivera vs. Vargas, G.R. No. 165895, June 5, 2009)
BP PHILIPPINES, INC. (FORMERLY BURMAH CASTROL PHILIPPINES, INC.), Petitioner,
vs.
CLARK TRADING CORPORATION, Respondent.

Injunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from
doing a certain act. It may be the main action or merely a provisional remedy for and as an incident
in the main action.

The main action for injunction is distinct from the provisional or ancillary remedy of
preliminary injunction which cannot exist except only as part or an incident of an independent
action or proceeding. As a matter of course, in an action for injunction, the auxiliary remedy of
1âwphi1

preliminary injunction, whether prohibitory or mandatory, may issue. Under the law, the main action
for injunction seeks a judgment embodying a final injunction which is distinct from, and should not be
confused with, the provisional remedy of preliminary injunction, the sole object of which is to
preserve the status quo until the merits can be heard. A preliminary injunction is granted at any
stage of an action or proceeding prior to the judgment or final order. It persists until it is dissolved or
until the termination of the action without the court issuing a final injunction.

As we have already stated, the writ of injunction would issue:

Upon the satisfaction of two requisites, namely: (1) the existence of a right to be protected; and (2)
acts which are violative of said right. In the absence of a clear legal right, the issuance of the
injunctive relief constitutes grave abuse of discretion. Injunction is not designed to protect contingent
or future rights. Where the complainant’s right is doubtful or disputed, injunction is not proper. The
possibility of irreparable damage without proof of actual existing right is not a ground for an
injunction.31

Respondent not being able to prove and establish the existence of a clear and actual right that ought
to be protected, injunction cannot issue as a matter of course. Consequently, the Court does not find
any ground for the award of damages.