PROVISIONAL REMEDIES

Does not represent an exclusive list. There are

Provisional remedies are temporary, auxiliary provisional remedies provided for in other rules
and ancillary remedies available to a litigant and law.
while the main action is pending or until a final
disposition of the matter in litigation is made. Provisional remedies may also be availed of in
Such remedies are dependent for their criminal actions pursuant to Rule 127 of Rules
application upon the existence of a principal of Court.
action.
Provisional remedies may also be granted in
Provisional remedies are not causes of action the exercise of the court’s equity jurisdiction
but merely adjuncts to a main suit. where no specific provisional remedy is
provided for the Rules in a particular case.
Purpose:
1. To preserve or protect their rights or Rule 57 – Preliminary Attachment
interests while the main action is
pending;  Attachment is defined as a provisional
2. To secure the judgment; remedy by which the property of an
3. To preserve the status quo; or adverse party is taken into legal
4. To preserve the subject matter of the custody, either at the commencement of
action. an action or at any time thereafter, as a
security for the satisfaction of any
The court, which grants or issues a provisional judgment that may be recovered by the
remedy, is the court which has jurisdiction over plaintiff or any proper party.
the main action.
The attachment is preliminary only when
The provisional remedies specified under the resorted to before the finality of the
Rules are: judgment to secure the property of the
adverse party and to prevent its
1. Preliminary attachment – Rule 57 dissipation. Once, the judgment has
2. Preliminary injunction – Rule 58 become final and executor, the
3. Receivership – Rule 59 attachment becomes a final one and is
4. Replevin – Rule 60 issued in order to satisfy the judgment.
5. Support pendete lite
 Preliminary attachment is purely a o In this situation, the need for
statutory remedy. It cannot exist without acquiring jurisdiction over the
a statute granting it. Its legal basis for property or res becomes
application is not only a direct provision imperative so the court may have
in the Rules of Court but also in the Civil the authority to order that the
Code of the Philippines. property be made to answer for
the liability of the non-appearing
 Preliminary attachment itself cannot be defendant.
the subject of a separate action o Thus, if the defendant appears,
independent of the principal action the cause becomes mainly a suit
because the attachment is only an in personam, with the added
incident of such action. incident that the property
attached remains liable, under
 Being merely ancillary to a principal the control of the court, to answer
proceeding, the attachment must fail if any demand, which may be
the principal suit cannot be maintained, established against the defendant
as the purpose of the writ can no longer by the final judgment of the court.
be justified.  The grant of the remedy of preliminary
attachment is addressed to judicial
Where the main action is appealed, the discretion to be exercised in accordance
attachment, which may have been with the requirements of the applicable
issued as an incident of that action, is rules.
also considered appealed and also  Preliminary attachment should be
removed from the jurisdiction of the resorted to only when necessary and as
lower court. a last remedy because it expose the
debtor to humiliation and annoyance. It
 Attachment is in the nature of a must granted only on concrete and
proceeding quasi in rem or in rem, this specific grounds and not merely on
classification becomes significant when general averment quoting the words of
the defendant does not appear in the the rules.
action as when he is a non-resident who o Since attachment is harsh,
is at the same time outside of the extraordinary and summary in
Philippines. nature, the rules on the
application of the writ of
 attachment must be strictly it for purposes of satisfying
construed in favor of the said judgment;
defendant.  To acquire jurisdiction over
 Section 1 of Rule 57 provides that the the action by actual or
plaintiff or any proper party may have constructive seizure of the
the property of the adverse party property in those instances
attached. Clearly, it is not only the where personal or
plaintiff who may apply for the issuance substituted service of
of the writ of preliminary attachment. summons on the
o Makes reference to any proper defendant cannot be
party. effected.
 May refer to a defendant  An order and writ of preliminary
who files a counterclaim, attachment may be applied for
cross-claim or third-party o At the commencement of the
complaint. action – ex parte issuance of the
 Proper party – may also writ
refer to counter-claimant, o At any time before entry of
cross-claimant, or the judgment – an application for the
third-party plaintiff as long issuance of an order of
as the application for the attachment would entail notice to
writ is supported by the the defendant
proper ground.  Under Sec 2 of Rule 36,
 Preliminary attachment is designed to the date of finality of the
seize the property of the debtor before judgment or final order
final judgment and put the same in shall be deemed to be the
custodial egis even while the action is date of its entry.
pending for the satisfaction of a later  Kinds of attachment
judgment. o Preliminary attachment – one
o Purposes of preliminary issued at the commencement of
attachment the action or at any time before
 To seize the property of entry of judgment as security for
the debtor in advance of the satisfaction of any judgment
final judgment and to hold that may be recovered. The court
takes custody of the property of
 the party against whom the  Garnishment is a forced
attachment is directed pending novation by the
litigation. substitution of creditors.
o Garnishment – is a kind of o Levy on execution to satisfy a
attachment in which the attaching final judgment – is the process
party seeks to subject to his claim employed after the judgment has
either the property of the adverse become executor by which the
party, in the hands of a third property of the judgment obligor
person called the garnishee, or is set aside and taken into
the money which said third custody of the court before the
person owes the adverse party. sale of the property on execution
 By means of garnishment, for the satisfaction of judgment.
the plaintiff reaches credits  The sheriff or an officer of
belonging to the defendant the court appropriates the
and owing to him from a judgment debtor’s property
third person. pursuant to the writ of
 Simply impounds the execution as a preliminary
property in the garnishee’s step to the sale on
possession and maintains execution of the property
the status quo until the of the judgment debtor.
main action is finally  Grounds for the issuance of a writ of
decided. preliminary attachment
 Jurisdiction over the o In an action for the recovery of a
garnishee is acquired by specified amount of money or
the mere service upon him damages, other than moral and
of the copy of the writ of exemplary, on a cause of action
garnishment with a notice arising from law, contract, quasi-
that his debt to the contract, delict or quasi-delict
defendant or other against a party who is about to
personal property of the depart from the Philippines with
defendant under his intent to defraud his creditors;
control or possession is o In an action for money or property
attached pursuant to the embezzled or fraudulently
writ. misapplied or converted to his
 own use by a public officer, or an so, with intent to defraud his
officer of a corporation, or an creditors; or
attorney, factor, broker, agent, or o In an action against a party who
clerk, in the course of his does not reside and is not found
employment as such, or by any in the Philippines, or on whom
other person in a fiduciary summons may be served by
capacity, or for a willful publication.
violation of duty;  Resident defendants
o In an action to recover the whose identity or where-
possession of property unjustly abouts are unknown
or fraudulently taken, detained  Resident defendants who
or converted, when the property, are temporarily out of the
or any part thereof, has been country
concealed, removed, or  Requisites for the issuance of an order
disposed of to prevent its of preliminary attachment
being found or taken by the o Filing of the requisite affidavit and
applicant or an authorized bond (attachment bond).
person;  Contents of the affidavit
o In an action against a party who o Sufficient cause of action exists
has been guilty of a fraud in o That the case is one of those
contracting the debt or mentioned in Sec 1 of Rule 57
incurring the obligation upon o That there is no other sufficient
which the action is brought, or security for the claim sought to be
in the performance thereof; enforced by the action
 Dolo causante – fraud o That the amount due to the
used to induce another to applicant, or the value of the
enter into a contract property the possession of which
 Dolo incidente – fraud he is entitled to recover, is as
employed by a party in the much as the sum for which the
fulfillment of his obligation order is granted above all legal
o In an action against a party who counterclaims
has removed or disposed of  Effect of the existence of a mortgage
his property, or is about to do o The writ will not be issued if a real
estate mortgage exists to secure
 the obligation even if, instead of  Issued ex parte and even
filing an action for foreclosure, an before summons is served
action for a sum of money was upon the defendant
filed.  It is possible that
 It must be shown that the during the course of
security is insufficient to the hearing, the
cover the claim. party against whom
 Condition of applicant’s bond the writ is sought
o Is conditioned upon the payment, may dispose of his
by the party applying for an order property or abscond
of attachment, of all costs, which before the writ is
the adverse party may be issued.
adjudged as entitled to, and all  Stages in the grant of preliminary
damages which he may sustain attachment
by reason of the attachment, if it o First, the court issues the order
shall be finally adjudged that the granting the application;
party applying for attachment was o Second, the writ of attachment
not entitled thereto. issues pursuant to the order
o The damages, which may be granting the writ; and
claimed against the bond, refers o Third, the writ is implemented.
only to damages sustained  Prior or contemporaneous service of
because of or by reason of the summons
attachment, not by reason of o The writ of attachment is
some other cause. implemented by the sheriff who
 Issuance of the order shall make a levy on attachment
o May be granted pursuant to the writ issued under
 Upon motion and notice Sec 2 of Rule 57.
and hearing by the court in  Service of summons
which the action is  Copy of the complaint
pending, and may even be  Application for attachment
issued on appeal by the  Applicant’s affidavit and
Court of Appeals or the bond; and
Supreme Court  Order and writ of
attachment.
 o It is apparent that the service o Required to attach the property
mentioned in the immediately subject of said writ to await the
preceding paragraph is judgment in the case and its
necessary to acquire jurisdiction execution.
over the person of the defendant o Precluded form attaching any
before the writ is implemented property exempt from execution
and to comply with the due such as those enumerated in Sec
process requirement of the law. 13 of Rule 39 of the Rules of
 When the requirement of prior or Court.
contemporaneous service shall not o After enforcing the writ, the sheriff
apply must, without delay make a return
o The summons could not be to the court which issued the writ,
served personally despite diligent with a full statement of his
efforts; proceedings under the writ and a
o The summons could not be complete inventory of the
served by substituted service property attached, together with
despite diligent efforts; any counter-bond given by the
o The defendant is a resident of the party against whom attachment is
Philippines temporarily absent issued, and serve copies thereof
therefrom; on the applicant.
o The defendant is a non-resident  Attachment of real property
of the Philippines; and o Real property or growing crops
o The action is one in rem or quasi shall be attached by the sheriff
in rem executing the writ by filing with
 Duties of the sheriff the registry of deeds the
o Required to proceed with the following:
attachment without delay and  Copy of the order of
with all reasonable diligence attachment;
unless the party against whom  Description of the property
the writ is directed makes a attached; and
deposit with the court from which  Notice that the property
the writ is issued, or gives a subject of the writ is
counter-bond. attached
 o The sheriff shall then leave a the attachment is issued is
copy of such order, description, attached pursuant of such writ.
and notice with the occupant of  In attaching debts and credits, including
the property, if any, or with such bank deposits, financial interest,
other person or his agent if found royalties, commissions, and other
within the province personal property not capable of manual
o Where the property has been delivery, the sheriff shall leave with the
brought under the operation of person owing such debts, or having in
either the Land Registration Act his possession under his control, such
or the Property Registration credits or other personal property, or
Decree, the notice shall contain a with his agent, the following:
reference to the  Copy of the writ
 Number of the certificate of  Notice that the debts
title owing by him to the party
 Volume and page in the against whom attachment
registration book where is issued, and the credits
the certificate is registered, and other personal
and property in his possession,
 Registered owner or or under his control,
owners thereof belonging to said party,
 If the property to be attached is personal are attached in pursuance
property capable of manual delivery, the of such writ.
sheriff shall take the property and safely o It shall be left with the person
keep it in his custody. He shall issue the owing such debts, or having in his
corresponding receipt for the property possession or under his control,
taken such credits or other personal
 Stocks or shares, or an interest in stocks property, or with his agent
or shares, of any corporation or  Effect of attachment of debts, credits
company shall be attached by leaving and similar personal property
with the president or managing agent o Person having possession or
there of the following: control shall be liable to the
o Copy of the writ applicant for the amount of the
o Notice stating that the stock or property, debts, or credits.
interest of the party against whom
 o It shall cease if the property when a petition for distribution is
subject of the writ is delivered or filed.
transferred, or the debts or o The property attached shall be
credits are paid to the clerk, delivered to the sheriff making the
sheriff or other proper officer of levy, subject to the claim of the
the court issuing the attachment. heir, legatee or devisee, or any
 A person may have an interest in the person claiming under him
estate of a deceased as an heir,  Property in custodial legis may be
legatee, or devisee. This interest may be subject of an order of preliminary
attached. attachment.
o Duty of sheriff  First attachment will have
 Shall serve the executor, priority over subsequent
administrator or other attachments
personal representative of o Copy of the writ of attachment
the decedent the following: shall be filed with the proper court
 Copy of the Writ or quasi-judicial agency, and
 Notice that said notice of the attachment served
interest in attached upon the custodian of said
 The copy of said writ and property.
notice shall also be filed in  The rule empowers a court to examine
the office of the clerk of the under oath the party whose property is
court in which said estate attached for the purpose of giving
is being settled. The same information respecting his property.
shall likewise be served
upon the heir, legatee or All other persons in possession of or
devisee concerned. controlling any property or credit
 The attachment of a person’s interest in belonging to the person whose property
the estate of the decedent does not is attached may also be required to
have the effect of impairing the powers appear and be examined under oath
of administration of the executor, before the court in which the action is
administrator or personal representative pending.
of the decedent.
o The representative is obligated to After such examination, the court may
report the attachment to the court issue an order requiring the delivery of
 the clerk of court any personal property o Terceria
capable of manual delivery, to await the  By making an affidavit of
judgment in action. his title thereto or his right
to the possession thereof,
 A writ of preliminary attachment is a stating the grounds of such
provisional remedy and its issuance right or title. The affidavit
does not have the effect of a final must be served upon the
judgment over the property attached. sheriff while he has
Before the entry of the judgment in the possession of the attached
case, the property attached remains in property, and the attaching
custodial egis and is not to be disposed parting.
of in any manner whatsoever.  Upon service of the
affidavit upon him, the
GR: The property attached cannot be sheriff shall not be bound
sold during the pendency of the action. to keep the property under
attachment unless the
XPN: Sec 11 of Rule 57 attaching party files a bond
approved by the court. The
After hearing with notice and it appears sheriff shall not be liable
to the court that the property attached is for damages for taking or
perishable, it may order such property to keeping of the property, if
be sold at public auction. The proceeds such bond shall be filed.
of the sale shall be deposited in court to  Under Sec 14 of Rule 57,
await the judgment in the action. the purpose of the bond is
to indemnify the sheriff
The sale may also be ordered by the against any claim by the
court if it determines that doing so will intervenor to the property
serve the interests of all the parties. seized or for damages
arising from such seizure,
NOTE: the order of the court shall be which the sheriff was
made only after notice and hearing. making and for which the
sheriff was directly
 Remedy of a third person, not a party to responsible to the third
the action, whose property is attached party.
  Sec 3 of Rule 57,  The motion may be filed
attachment bond to assure before levy, after levy or
the return of defendant’s even after the release of
personal property or the the attached property.
payment of damages to 
the defendant if the  notice and after hearing.
plaintiff’s action to recover  Upon the discharge of an attachment,
possession of the same the property attached, or the proceeds
property fails of any sale thereof, shall be delivered to
 Discharge of attachment; counter-bond the party making the deposit or giving
and other grounds the counter-bond, or to the person
o Filing a motion to discharge the appearing on his behalf. The deposit or
attachment and making a deposit counterbond shall stand in the place of
or counter-bond the property attached.
o By filing a motion to set aside or  Even a party who loses in the main
discharge the attachment on case, but is able to establish a right to
other ground without need for damages by reason of improper,
filing a counter-bond irregular or excessive attachment, may
 The attachment was be entitled to damages.
improperly or o The application for damages
irregularly issued or must be filed before the trial
enforced; court, or before appeal is
 The bond is perfected, or before the judgment
insufficient; becomes executory.
 The attachment is  The judgment for damages shall be
excessive; and included in the judgment on the main
 The property is case.
exempt from  Satisfaction of the judgment out of the
execution and, as property attached; return of sheriff (Sec
such, is also 15)
exempt from  By paying to the judgment
preliminary obligee the proceeds of all
attachment sales of perishable or
other property sold in
 pursuance of the order of  Section 16. Balance due collected upon
the court, or so much as an execution; excess delivered to
shall be necessary to judgment obligor. — If after realizing
satisfy the judgment; upon all the property attached, including
 If any balance remains the proceeds of any debts or credits
due, by selling so much of collected, and applying the proceeds to
the property, real or the satisfaction of the judgment less the
personal, as may be expenses of proceedings upon the
necessary to satisfy the judgment any balance shall remain due,
balance, if enough for that the sheriff must proceed to collect such
purpose remain in the balance as upon ordinary execution.
sheriff's hands, or in those Whenever the judgment shall have been
the clerk of the court; paid, the sheriff, upon reasonable
 By collecting from all demand, must return to the judgment
persons having in their obligor the attached property remaining
possession credits in his hands, and any proceeds of the
belonging to the judgment sale of the property attached not applied
obligor, or owing debts to to the judgment. (16a)
the latter at the time of the  Section 17. Recovery upon the counter-
attachment of such credits bond. — When the judgment has
or debts, the amount of become executory, the surety or
such credits and debts as sureties on any counter-bond given
determined by the court in pursuant to the provisions of this Rule to
the action, and stated in secure the payment of the judgment
the judgment, and paying shall become charged on such counter-
the proceeds of such bond and bound to pay the judgment
collection over to the obligee upon demand the amount due
judgment obligee. under the judgment, which amount may
o The sheriff shall forthwith make a be recovered from such surety or
return in writing to the court of his sureties after notice and summary
proceedings under this section hearing in the same action. (17a)
and furnish the parties with  Section 18. Disposition of money
copies thereof. deposited. — Where the party against
whom attachment had been issued has
 deposited money instead of giving
counter-bond, it shall be applied under
the direction of the court to the
satisfaction of any judgment rendered in
favor of the attaching party, and after
satisfying the judgment the balance shall
be refunded to the depositor or his
assignee. If the judgment is in favor of
the party against whom attachment was
issued, the whole sum deposited must
be refunded to him or his assignee.
 Section 19. Disposition of attached
property where judgment is for party
against whom attachment was issued.
— If judgment be rendered against the
attaching party, all the proceeds of sales
and money collected or received by the
sheriff, under the order of attachment,
and all property attached remaining in
any such officer's hands, shall be
delivered to the party against whom
attachment was issued, and the order of
attachment discharged.