Remedial Law Review 1 Provisional Remedies November 7, 2018

BAR QUESTIONS

What are the provisional remedies under the rules?

Suggested answer: The provisional remedies under the Rules are preliminary attachment, preliminary
injunction, receivership, replevin, and support pendente lite.

II

JK’s real property is being attached by the sheriff in a civil action for damages against LM. JK claims
that he is not involved in said case; and that he is the sole registered owner of said property. Under the Rules
of Court, what must JK do to prevent the sheriff from attaching his property?

Suggested answer: If the real property has been attached, the remedy is to file a third party claim. The
third-party claimant should make an affidavit of his title to the property attached, stating the grounds of his
title thereto, and serve such affidavit upon the sheriff while the latter has possession of the attached property,
and a copy thereof upon the attaching party (Rule 57, Section 1). The third-party claimant may also intervene
or file a separate civil action to vindicate his claim to the property involved and secure the necessary reliefs,
such as preliminary injunction, which will not be considered as interference with a court of coordinate
jurisdiction (Ong v. Tating, 149 SCRA 265).

III

Distinguish attachment from garnishment. (2%)

Suggested answer: Attachment and garnishment are distinguished from each other as follows: Attachment is a
provisional remedy that effects a levy on property of a party as security for the satisfaction of any judgment
that may be recovered, while garnishment is a levy on debts due to the judgment obligor or defendant and other
credits, including bank deposits, royalties, and other personal property not capable of manual delivery under a
writ of execution or a writ of attachment.

IV

In a case, the property of an incompetent under guardianship was in custodia legis. Can it be attached?
Explain.

Suggested answer: Although the property of an incompetent under guardianship is in custodia legis, it may be
attached as in fact it is provided that in such case, a copy of the writ of attachment shall be filed with the proper
court and notice of the attachment served upon the custodian of such property (Rule 57, Section 7).

May damages be claimed by a party prejudiced by a wrongful attachment even if the judgment was
adverse to him? Explain.

Suggested answer: Yes, damages may be claimed by a party prejudiced by a wrongful attachment even if the
judgment is adverse to him. This is authorized by the Rules. A claim for damages may be made on account of
improper, irregular, excessive attachment, which shall be heard with notice to the adverse party and his surety
or sureties (Rule 57, Section 20; Javellana v. D.O. Plaza Enterprises, Inc., 32 SCRA 281).
 VI

May a preliminary attachment be issued ex parte? Briefly state the reason(s) for your answer.

Suggested answer:

Yes, an order of attachment may be issued ex parte or upon motion with notice and hearing (Section
2). The reason why the order may be issued ex parte is that requiring notice to the adverse party and hearing
would defeat the purpose of the provisional remedy and enable the adverse party to abscond or dispose of his
property before a writ of attachment or dispose of his property before a writ of attachment issues (Mindanao
Savings and Loan Assn. v. Court of Appeals, 172 SCRA 480).

VII

The plaintiff obtained a writ of preliminary attachment upon a bond of P1 million. The writ was levied
on the defendant‘s property, but it was discharged upon the posting by the defendant of a counter bond in the
same amount of P1 million. After trial, the court rendered judgment finding that the plaintiff had no cause of
action against the defendant and that he had sued out the writ of attachment maliciously. Accordingly, the
court dismissed the complaint and ordered the plaintiff and its surety to pay jointly to the defendant P1.5
million as actual damages, P0.5 million as moral damages and P0.5 million as exemplary damages. Evaluate
the soundness of the judgment from the point of view of procedure.

Suggested answer: The judgment against the surety is not sound if due notice was not given to him of the
application for damages (Rule 57, Section 20). Moreover, the judgment against the surety cannot exceed the
amount of its counterbond of P1 million.

VIII

A default judgment was rendered by the RTC ordering D to pay P a sum of money. The judgment
became final, but D filed a petition for relief and obtained a writ of preliminary injunction staying the
enforcement of the judgment. After hearing, the RTC dismissed D’s petition, whereupon P immediately moved
for the execution of the judgment in his favor. Should P’s motion be granted? Why?

Suggested answer: P’s immediate motion for execution of the judgment in his favor should be granted because
the dismissal of D’s petition for relief also dissolves the writ of preliminary injunction staying the enforcement
of the judgment, even if the dismissal is not yet final (Golez v. Leonidas, 107 SCRA 187 [1981]).

IX

Katy filed an action against Tyrone for collection of the sum of P1 million in the Regional Trial Court,
with an ex parte application for a writ of preliminary attachment. Upon posting of an attachment bond, the
court granted the application and issued a writ of preliminary attachment. Apprehensive that Tyron might
withdraw his savings deposit with the bank, the sheriff immediately served a notice of garnishment on the bank
to implement the writ of preliminary attachment. The following day, the sheriff proceeded to Tyrone‘s house
and served him the summons, with copies of the complaint containing the application for writ of preliminary
containing the application for writ of preliminary attachment, Katy‘s affidavit, order of attachment, writ of
preliminary attachment and attachment bond. Within fifteen (15) days from service of the summons, Tyrone
filed a motion to dismiss and to dissolve the writ of preliminary attachment on the following grounds: (i) the
court did not acquire jurisdiction over his person because the writ was served ahead of the summons; (ii) the
writ was improperly implemented; and (iii) said writ was improvidently issued because the obligation in
question was already fully paid. Resolve the motion with reasons. (4%)

Suggested answer: The fact that the writ of attachment was served ahead of the summons did not affect the
jurisdiction of the court over the defendant. The effect is that the writ is not enforceable (Rule 57, Sec. 5). But,
as pointed out by jurisprudence, all that is needed to be done is to re-serve the writ (Onate v. Abrogar, 241
SCRA 659 [1985]). The writ was improperly implemented. Serving a notice of garnishment, particularly
before summons is served, is not proper. What should be served on the defendant are a copy of the writ of
attachment and notice that the bank deposits are attached pursuant to the writ (Rule 57, Section 7[d]). The
proper remedy where there is a payment is a motion to dismiss under Rule 16, Section 1[h]. 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 (Rule 57, Section 3; Mindanao Savings
and Loans Assn. v. v. Court of Appeals, 172 SCRA 480 [1989]; Davao Light & Power Co. v. Court of Appeals,
204 SCRA 343 [1991])

After his properties were attached, defendant Porfirio filed a sufficient counterbond. The trial court
discharged the attachment. Nonetheless, Porfirio suffered substantial prejudice due to the unwarranted
attachment. In the end, the trial court rendered a judgment in Porfirio‘s favor by ordering the plaintiff to pay
damages because the plaintiff was not entitled to the attachment. Profirio moved to charge the plaintiff‘s
attachment bond. The plaintiff and his sureties opposed the motion, claiming that the filing of the counterbond
had relieved the plaintiff‘s attachment bond from all liability for the damages. Rule on Porfirio‘s motion. (4%)

Suggested answer: Porfirio‘s motion to charge the plaintiff‘s attachment bond is proper. The filing of the
counterbond by the defendant does not mean that he has waived his right to proceed against the attachment
bond for damages. The attachment bond is posted to answer for any damage that a party may suffer if the
attachment is wrongful or improper (DM Wenceslao & Associates, Inc. v . Readycon Trading & Construction
Corp., GR No. 154106, 29 June 2004).

XI

The writ of execution was returned unsatisfied. The judgment obligee subsequently received
information that a bank holds a substantial deposit belonging to the judgment obligor. If you were the counsel
of the judgment obligee, what steps would you take to reach the deposit to satisfy the judgment? (3%)

Suggested answer: I would ask for a writ of garnishment against the deposit in the bank (Rule 57, Section
9[c]).

XII

Explain what is a TRO?

Suggested answer:

A TRO is an order to maintain the status quo between and among the parties until the determination of
the prayer for a writ of preliminary injunction. A writ of preliminary injunction cannot be granted without
notice and hearing. A TRO may be granted ex parte if it shall appear from facts shown by affidavits or by the
verified application that great or irreparable injury would result to the applicant before the matter can be heard
on notice, the court in which the application for preliminary injunction was made may issue a TRO ex parte
for a period not exceeding 20 days from service to the party sought to be enjoined.

XIII

An application for a writ of preliminary injunction with a prayer for a temporary restraining order is
included in a complaint and filed in a multi-sala Regional Trial Cout (RTC) consisting of Branches 1, 2, 3, and
4. Being urgent in nature, the Executive Judge, who was sitting in Branch 1, upon the filing of the aforesaid
application, immediately raffled the case in the presence of the judges of Branches 2, 3, and 4. The case was
raffled to Branch 4 and the judge thereof immediately issued a temporary restraining order. Is the temporary
restraining order valid? Why?

Suggested answer: No. It is only the Executive Judge who can issue immediately a temporary restraining
order effective only for seventy-two (72) hours from issuance. No other judge has the right or power to issue
a temporary restraining order ex parte. The judge whom the case is assigned will then conduct a summary
hearing to determine whether the temporary restraining order shall be extended. But in no case beyond 20
days, including the original 72 hour period (Rule 58, Section 5).
 XIV

May a writ of preliminary injunction be issued ex parte? Why?

Suggested answer: No, a writ of preliminary injunction may not be issued ex parte. As provided in the Rules,
no preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be
enjoined (Rule 58, Section 5). The reason is that a preliminary injunction may cause grave and irreparable
injury to the party enjoined.

XV

Can a suit for injunction be aptly filed with the Supreme Court to stop the President of the Philippines
from entering into a peace agreement with the National Democratic Front?

Suggested answer: No, a suit for injunction cannot be aptly filed with the Supreme Court to stop the President
of the Philippines from entering into a peace agreement with the National Democratic Front, which is purely
political question. The President of the Philippines is immune from suit during his term (Madarang v.
Santamaria, 37 Phil. 304 [1917]).

XVI

What are the requisites for the issuance of (a) a writ of preliminary injunction; and (b) a final writ of
injunction?

Suggested answer: Requisites for the issuance of a writ of preliminary injunction are a verified complaint
showing the existence of a right in esse, violation or threat of violation of such right, damages or injuries
sustained or that will be sustained by reason of such violation, notice to all parties of raffle and of hearing,
hearing on the application, and filing of an appropriate bond and service thereof. On the other hand, a final
writ of injunction may be rendered by judgment after trial, showing applicant to be entitled to the writ (Rule
58, Section 9).

XVII

May the Regional Trial Court issue injunction without bond?

Suggested answer: Yes, if the injunction that is issued is a final injunction. Generally, however, preliminary
injunction cannot issue without bond unless exempted by the trial court (Rule 58, Section 4[b]).

XVIII

(A) What is the duration of a TRO issued by the Executive Judge of a Regional Trial Court?
(B) Differentiate a TRO from a status quo order.

Suggested answer:

(A) In cases of extreme urgency, when the applicant will suffer grave injustice and irreparable injury, the
duration of a TRO issued ex parte by and Executive Judge of a Regional Trial Court (RTC) is 72 hours
(Rule 58, Section 5). In the exercise of his regular functions over cases assigned to his sala, an Executive
Judge may issue a TRO for a duration not exceeding a total of 20 days.
(B) A status quo order (SQO) is more in the nature of a cease and desist order, since it does not direct the
doing or undoing of acts, as in the case of prohibitory or mandatory injunctive relief. A TRO is only
good for 20 days if issued by the RTC; 60 days if issued by the CA; until further notice if issued by the
Supreme Court. The SQO is without any prescriptive period and may be issued without a bond. A
TRO dies a natural death after the allowable period; the SQO does not. A TRO is provisional. SQO
lasts until revoked. A TRO is not extendible, but the SQO may be subject to agreement of the parties.
 Remedial Law Review 1 Provisional Remedies November 7, 2018

BAR QUESTIONS
I
What are the provisional remedies under the rules?

II
JK’s real property is being attached by the sheriff in a civil action for damages against LM. JK claims
that he is not involved in said case; and that he is the sole registered owner of said property. Under the Rules
of Court, what must JK do to prevent the sheriff from attaching his property?

III
Distinguish attachment from garnishment.

IV
In a case, the property of an incompetent under guardianship was in custodia legis. Can it be attached?

V
May damages be claimed by a party prejudiced by a wrongful attachment even if the judgment was
adverse to him? Explain.
VI
May a preliminary attachment be issued ex parte? Briefly state the reason(s) for your answer.

VII
The plaintiff obtained a writ of preliminary attachment upon a bond of P1 million. The writ was levied
on the defendant‘s property, but it was discharged upon the posting by the defendant of a counter bond in the
same amount of P1 million. After trial, the court rendered judgment finding that the plaintiff had no cause of
action against the defendant and that he had sued out the writ of attachment maliciously. Accordingly, the
court dismissed the complaint and ordered the plaintiff and its surety to pay jointly to the defendant P1.5
million as actual damages, P0.5 million as moral damages and P0.5 million as exemplary damages. Evaluate
the soundness of the judgment from the point of view of procedure.

VIII
A default judgment was rendered by the RTC ordering D to pay P a sum of money. The judgment
became final, but D filed a petition for relief and obtained a writ of preliminary injunction staying the
enforcement of the judgment. After hearing, the RTC dismissed D’s petition, whereupon P immediately moved
for the execution of the judgment in his favor. Should P’s motion be granted? Why?

IX
Katy filed an action against Tyrone for collection of the sum of P1 million in the Regional Trial Court,
with an ex parte application for a writ of preliminary attachment. Upon posting of an attachment bond, the
court granted the application and issued a writ of preliminary attachment. Apprehensive that Tyron might
withdraw his savings deposit with the bank, the sheriff immediately served a notice of garnishment on the bank
to implement the writ of preliminary attachment. The following day, the sheriff proceeded to Tyrone‘s house
and served him the summons, with copies of the complaint containing the application for writ of preliminary
containing the application for writ of preliminary attachment, Katy‘s affidavit, order of attachment, writ of
preliminary attachment and attachment bond. Within fifteen (15) days from service of the summons, Tyrone
filed a motion to dismiss and to dissolve the writ of preliminary attachment on the following grounds: (i) the
court did not acquire jurisdiction over his person because the writ was served ahead of the summons; (ii) the
writ was improperly implemented; and (iii) said writ was improvidently issued because the obligation in
question was already fully paid. Resolve the motion with reasons.

X
The writ of execution was returned unsatisfied. The judgment obligee subsequently received
information that a bank holds a substantial deposit belonging to the judgment obligor. If you were the counsel
of the judgment obligee, what steps would you take to reach the deposit to satisfy the judgment?
 XI
After his properties were attached, defendant Porfirio filed a sufficient counterbond. The trial court
discharged the attachment. Nonetheless, Porfirio suffered substantial prejudice due to the unwarranted
attachment. In the end, the trial court rendered a judgment in Porfirio‘s favor by ordering the plaintiff to pay
damages because the plaintiff was not entitled to the attachment. Profirio moved to charge the plaintiff‘s
attachment bond. The plaintiff and his sureties opposed the motion, claiming that the filing of the counterbond
had relieved the plaintiff‘s attachment bond from all liability for the damages. Rule on Porfirio‘s motion.

XII
Explain what is a TRO?

XIII
An application for a writ of preliminary injunction with a prayer for a temporary restraining order is
included in a complaint and filed in a multi-sala Regional Trial Cout (RTC) consisting of Branches 1, 2, 3, and
4. Being urgent in nature, the Executive Judge, who was sitting in Branch 1, upon the filing of the aforesaid
application, immediately raffled the case in the presence of the judges of Branches 2, 3, and 4. The case was
raffled to Branch 4 and the judge thereof immediately issued a temporary restraining order. Is the temporary
restraining order valid? Why?

XIV
May a writ of preliminary injunction be issued ex parte? Why?

XV
Can a suit for injunction be aptly filed with the Supreme Court to stop the President of the Philippines
from entering into a peace agreement with the National Democratic Front?

XVI
What are the requisites for the issuance of (a) a writ of preliminary injunction; and (b) a final writ of
injunction?

XVII
May the Regional Trial Court issue injunction without bond?

XVIII
What is the duration of a TRO issued by the Executive Judge of a Regional Trial Court?

XIX
Differentiate a TRO from a status quo order.