R.

Provisional Remedies
PROVISIONAL REMEDIES UNDER THE RULES OF COURT:
a. Attachment (Rule 57)
b. Preliminary Injunction (Rule 58)
c. Receivership (Rule 59)
d. Replevin or delivery of private property (Rule 60)
e. Support Pendente Lite (Rule 61)
f. Criminal Cases (Rule 127 – in connection with the civil action deemed instituted with the
criminal action)

OTHER PROVISIONAL REMEDIES

a. Temporary Protection Order [TPO] (RA 9262, Anti-Violence Against Women and their
Children; Rule on the Writ of Amparo)
b. Witness Protection Order [WPO] (RA 6981; Rule on the Writ of Amparo)
c. Inspection Order [IO] (AM 07-9-12, Rule on the Writ of Amparo)
d. Production Order [PO] (AM 07-9-12, Rule on the Writ of Amparo)
e. Administration of Common Property (AM 02-11-12, Rule on Provisional Orders)
f. Inspection, Examination of Accounts and Freeze Order (RA 9372, Human Security Act)
g. Freeze Order under RA 9160 as amended by RA 9194 (Anti-Money Laundering Act)
h. Seizure and Sequestration of Accounts and Assets (RA 9372, Human Security Act)
i. Restriction of Travel (RA 9372, Human Security Act)
j. Stay Order ( AM 00-8-10, Rules of Procedure on Corporate Rehabilitation)
k. Hold Departure Order (Criminal cases under Circular 39-97 and Family cases under AM 02-
11-12)
l. Temporary visitation rights (AM 02-11-12, Rule on Provisional Orders )
m. Guardian Ad Litem of Child (AM 02-1-19, Rule on Involuntary Commitment of Children)
n. Temporary Custody of Child (AM 02-1-19 and AM 02-11-12)
o. Spousal and Child Support (AM 02-11-12, Rule on Provisional Orders)

COMMON REQUIREMENTS
a. Affidavits are required to support the issuance of these remedies, except injunction and
receivership.
b. A bond is also required to answer for damages by reason of the improvident issuance of the
writ. Exceptions: temporary restraining order, support pendente lite, inspection of accounts and
freeze order (Human Security Act), inspection and production orders (rule on the writ of amparo),
seizure and sequestration of accounts and assets (Human Security Act), restriction of travel
(Human Security Act) and hold departure order (Circular 39-97 and AM 02-11-12). Recovery of
damages from the bond is governed by Rule 57, Section 20.

1. Nature of provisional remedies

Provisional remedies are temporary, auxiliary and ancillary remedies available to a litigant
for the protection of his rights while the main action is pending. They are writs and processes
which are not main actions and they presuppose the existence of a main action.

They are provisional because they constitute temporary measures availed of during the
pendency of the action. They are ancillary because they are mere incidents in and are
dependent upon the result of the main action. (Regalado 2008 ed.)

When to apply and in what principal actions available:

1. Preliminary Attachment (Rule 57) – at the COMMENCEMENT of the action or at any time
before entry of judgment
a. Recovery of a liquidated sum of money
b. Recovery of possession of property unjustly or fraudulently taken, detained or
converted

2. Preliminary Injunction (Rule 58) - at ANY STAGE of the action prior to the judgment or
final order
a Action for injunction, whether or not coupled with other prayers
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b Forcible entry and unlawful detainer

3. Receivership (Rule 59) – at ANY STAGE of the proceedings and even up to the stage
after the judgment has become final and executory as a means of enforcing the judgment
a. Receivership action
b. Real action involving title to or possession of realty
c. Foreclosure of mortgage
d. Dissolution of corporation

4. Replevin (Rule 60) - at the COMMENCEMENT of the action OR at ANY TIME before
answer
a. Recovery of possession of personal property
b. Recovery of personal property subject of chattel mortgage as a preliminary step to
extrajudicial foreclosure

5. Support Pendente Lite (Rule 61) – at the COMMENCEMENT of the proper action or
proceeding, or at ANY TIME prior to the judgment or final order
a. Support, whether as the main case or as one of several causes of action.
b. Criminal actions where the civil liability includes support of the offspring as a
consequence of the crime ( rape, seduction).

2. Jurisdiction over provisional remedies

The court which grants or issues a provisional remedy is the court which has jurisdiction over
the main action. Even a municipal trial court may grant a provisonal remedy in action pending with
it and within its jurisdiction. Exs. writ of preliminary mandatory action, ancillary to the main action
of ejectment (Rule 70, Sec. 15). But where the main action is for support, provisional remedy of
support pendente lite may not be granted by a municipal trial court because the main action is
within the jurisdiction of the family court.

3. Preliminary Attachment
Preliminary attachment defined -
a. a provisional remedy
b. issued upon order of the court where the action is pending,
c. to be levied upon the property of the defendant therein,
d. the same to be held thereafter by the sheriff
e. as SECURITY for the satisfaction of a judgment in said action
f. in favor of the attaching creditor against the defendant.
(Virata vs. Aquino, September 10, 1973)

Ancillary to principal proceeding -

The attachment must fail if the suit itself cannot be maintained as the purpose of the writ
can no longer be satisfied.

When the main action is appealed the attachment is also considered appealed, It cannot be
the subject of an independent action (Olib vs. Pastoral, 188 SCRA 692 [1990]).

Writ of attachment may be issued ex parte

An order of attachment may be issued either ex parte or upon notice and hearing by the
court in which the action is pending, or by the Court of Appeals or Supreme Court (Rule 57, Sec.
2).
It may be issued ex parte because to require notice to the adverse party would defeat the
purpose of attachment and enable the adverse party to abscond or dispose of the property
before the issuance of the writ (Mindanao Savings and Loan Association, Inc. vs. CA, 172 SCRA
480).
❖ Several writs may be issued at the same time to the sheriffs of the courts of
different judicial regions.

Attachment and garnishment distinguished

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Garnishment is an attachment by which the plaintiff seeks to subject to his claim property of
the defendant in the hands of a third person or money owed by such third person or garnishee to
the defendant. The rules on attachment also apply to garnishment proceedings.
Attachment Garnishment
Property is usually in the possession Property is in the possession of a
of the party litigant. third party
Subject is real or personal property Subject is personal property,
usually debts or security

(1) Preliminary (2) Garnishment (3) Levy on

Attachment Execution
Issued at the It is a kind of attachment in which Writ issued by the
commencement of the plaintiff seeks to subject court after judgment by
the action or at either the property of the which the property of
anytime before entry defendant in the hands of the the judgment obligor is
of the judgment as third person called the garnishee, taken into the custody
security for the to his claim or the money in which of the court before the
satisfaction of any said third person owes the sale of the property on
judgment that may be defendant. Garnishment simply execution for the
recovered in the impounds the property in the satisfaction of a final
cases provided for by possession of the garnishee and judgment. It is a
the rules. Here the maintains the status quo until the preliminary step to the
court takes custody of main action is finally decided. sale on execution of
the property of the Further, by means of the property of the
party against whom garnishment, the plaintiff reaches judgment debtor
the attachment is credits belonging to the
directed. defendant and owing to him from
a third person who is a stranger
to the litigation.

Garnishment of bank deposits does not violate the bank secrecy law (RA 1405) - because
it does not involve examination or inquiry into the deposit, but is merely to inform the court whether
defendant has a deposit in the bank which may be garnished.

When garnishment order lifted. – A garnishment order shall be lifted if it is established that:
(a) the party whose accounts have been garnished has posted a counterbond or has made the
requisite cash deposit; (b) the order was improperly or irregularly issued as where there is no
ground for garnishment or the affidavit and/or bond filed therefor are defective or insufficient; (c)
the property attached is exempt from execution, hence exempt from preliminary attachment; or
(d) the judgment is rendered against the attaching or garnishing creditor.

Discharge of attachment

1. Posting of counterbond (Sec. 12). Even before actual levy, seizure may be prevented also
under a counterbond (Sec. 5).
2. Showing of improper or irregular issuance (Sec. 13).
3. Judgment rendered against attaching party – dismissal of principal action (Sec. 19).

a. Grounds for issuance of writ of attachment

Grounds for issuance (Rule 57, Sec. 1)
1. Action for recovery of specified amount
2. Action involving embezzled property
3. Action to recover property fraudulently taken
4. Action involving fraud in contracting or performing obligation
5. Action against party who has removed or disposed of property to defraud creditors
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6. Action against non-resident defendant

b. Requisites
Attachment bond (Rule 57, Sec.3)
An attachment bond is a pre-requisite to the issuance of a writ of attachment. Until the
attachment is discharged or lifted in accordance with law, the bond continues to be valid even
when the PREMIUM IS NOT PAID.

c. Issuance and contents of order of attachment; affidavit and bond

(Rule 57, Sec. 2) The order of attachment
 may be issued either ex parte or upon motion with notice and hearing by the court in
which the action is pending, or by the Court of Appeals or the Supreme Court.
 must require the sheriff of the court to attach so much of the property in the Philippines of
the party against whom it is issued, not exempt from execution, as may be sufficient to
satisfy the applicant's demand,
EXCEPT if such party makes a DEPOSIT or gives a BOND in an amount equal to that
fixed in the order. Amount may be (a) sufficient to satisfy the applicant's demand or (b) the
value of the property to be attached as stated by the applicant, exclusive of costs.

Ex parte grant of the writ is allowed because it is possible that during the course of the
hearing, the part against whom the writ is sought may dispose of his property or abscond before
the writ is issued. (Filinvest Credit Corporation vs. Relova, G.R. No. L-50378, September 30,
1982)

Affidavit and Bond (Rule 57, Secs. 3 and 4)

1. The AFFIDAVIT to be executed by the applicant himself or some other person who
personally knows the facts must show that:
a)There is a sufficient cause of action. The case is one of those mentioned in Rule 57, Sec.
1
b)There is no sufficient security for the claim sought to be enforced; and
c)The amount claimed in the action is as much as the sum for which the order is granted
above all legal counterclaims;
2. The BOND must be executed to the adverse party in an amount fixed by the judge, not
exceeding the applicant’s claim, conditioned that the latter will pay the costs which may be
adjudged to the adverse party and all damages which he may sustain by reason of the attachment,
if the court shall finally adjudge that the applicant was not entitled thereto.

d. Rule on prior or contemporaneous service of summons

Prior or contemporaneous service of summons required
An ORDER of attachment may be granted ex parte. Its grant or denial rests upon the sound
discretion of the court.
However, its ENFORCEMENT shall be preceded or contemporaneously accompanied by
service of summons and copy of the complaint, order of attachment and bond posted by the
applicant (Davao Light and Power Co., Inc. vs. CA, 204 SCRA 343 [1991]).

EXCEPTIONS TO PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS (Rule 57, Sec. 5)

1. Summons could not be served personally or by substituted service despite diligent efforts;
2. Defendant is a resident of the Philippines temporarily absent therefrom;
3. Defendant is a non-resident of the Philippines; or
4. The action is in rem or quasi in rem.

e. Manner of attaching real and personal property; when property attached is

claimed by third person
The sheriff enforcing the writ shall without attach only so much of the property of the
adverse party not exempt from execution, as may be sufficient to satisfy the applicant's
demand,
UNLESS the adverse party
(a) makes a DEPOSIT with the court from which the writ is issued, or
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(b) gives a COUNTERBOND executed to the applicant, in an amount equal to the bond fixed
by the court in the order of attachment or to the value of the property to be attached, exclusive
of costs.
No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced
unless it is preceded, or contemporaneously accompanied, by service of summons, together
with a copy of the complaint, the application for attachment, the applicant's affidavit and bond,
and the order and writ of attachment, on the defendant within the Philippines.

The rule on prior or contemporaneous service of summons shall apply, subject to the
exceptions enumerated earlier. (Rule 57, Section 5)

Rule 57, Sec. 7. Attachment of real and personal property; recording thereof.
The sheriff executing the writ shall attach real and personal property in the following manner:

1. Real property, growing crops, or any other interest therein

a) By filing with the registry of deeds a copy of the order, together with a description of the
property attached and a notice that it is attached, or that such real property and any
interest therein held by or standing in the name of such other person are attached; and
b) By leaving a copy of such order, description, and notice with the occupant of the property,
if any, or with such other person or his agent if found within the province.

2. Personal property capable of manual delivery

a) By taking and safely keeping it in his custody, after issuing the corresponding receipt
therefor

3. Stocks or shares, or an interest in stocks and shares, of any corporation or company

a) By leaving with the president or managing agent thereof, a copy of the writ, and a notice
stating that the stock or interest of the party against whom the attachment is issued, is
attached pursuant to the writ

4. Debts and credits, including bank deposits, financial interest, royalties, commissions,
and other personal property not capable of manual delivery
a) By leaving with the person owing such debts, or having in his possession or under his
control, such credits or other personal property, or with his agent, a copy of the writ, and
notice that the debts owing by him to the party against whom the attachment is issued,
and the credits and other personal property in his possession, or under his control,
belonging to said party, are attached in pursuance of such writ

5. The interest of the party against whom attachment is issued in property belonging to
the estate of the decedent, whether as heir, legatee, or devisee
a) By serving the executor or administrator or other personal representative of the decedent
with a copy of the writ and notice, that said interest is attached
b) A copy of said writ of attachment and of said notice shall also be filed in the office of the
clerk of the court in which said estate is being settled and served upon the heir, legatee,
or devisee concerned.

6. If the property sought to be attached is in custodia legis

a) A copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency,
and notice of the attachment served upon the custodian of such property.

Attachment of Debts, Credits, Similar Personal Property (Garnisment)

Those who have in their possession or control any credits or other similar personal property
which belongs to the party against whom the attachment is issued, or owing any debts to him,
shall be liable to the applicant for the amount of such credits, debts or other similar property.

Such liability shall accrue from the time of service upon him of the copy of the writ of attachment
and until the attachment is discharged, or any judgment recovered by him is satisfied, unless such
property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper
officer of the court issuing the attachment. (Rule 57, Section 8)

It is not necessary to serve summons upon the garnishee to acquire jurisdiction upon him. All
that is required is service upon him of the writ of garnishment.
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When property attached is claimed by a third person

Rules regarding terceria (third party claims) – Rule 57, Sec. 14

➢ The third person whose property was levied on must make an

 AFFIDAVIT of his title thereto, or right to the possession thereof,
 stating the grounds of such right or title, and
 serves such affidavit upon the sheriff while the latter has possession of the attached
property and a copy thereof upon the attaching party
The sheriff shall not be bound to keep the property as a general rule.

➢ The sheriff is bound to keep the property when the attaching party, on demand of the
sheriff, files a BOND approved by the court to INDEMNIFY the third-party claimant in a
sum not less than the value of the property levied upon. (indemnity bond)

➢ In case of disagreement as to such value, the same shall be decided by the court issuing
the writ of attachment.

➢ No claim for damages for the taking or keeping of the property may be enforced against
the bond unless the action therefor is filed within one hundred twenty (120) days from the
date of the filing of the bond.

➢ The sheriff shall not be liable for damages for the taking or keeping of such property, to
any such third-party claimant, if such bond is filed.

➢ The proceedings set forth above shall not prevent such claimant or any third person from
vindicating his claim to the property in the same or separate action.

➢ or prevent the attaching party from claiming damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in the same or a separate action.

➢ When the writ of attachment is issued in favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond shall not be required, and in case the
sheriff is sued for damages as a result of the attachment, he shall be represented by the
Solicitor General, and if held liable therefor, the actual damages adjudged by the court
shall be paid by the National Treasurer out of the funds to be appropriated for the purpose.

❖ The third party CANNOT APPEAL NOR AVAIL OF CERTIORARI AS A REMEDY in the
event that his claim is denied since HE IS A NON-PARTY to the original action (Sierra vs.
Rodriguez and Northern Motors vs. Coquia),

❖ Aside from Rule 57, Sec. 14, the other provisions of the Rules of Court dealing with terceria
or third party claims are Rule 39, Sec. 16 (execution) and Rule 60, Sec. 7 (replevin).
Attachment bond under Sec. 3 is different from the bond under Sec. 14 (proceedings
where property claimed by third person). Sec. 3 refers to the attachment bond to assure
the return of defendant’s property or the payment of damages to the defendant if the plaintiff’s
action to recover possession of the same property fails, in order to protect the person’s right
of possession of said property, or to prevent the defendant from destroying the same during
the pendency of the suit.
Under Sec. 14, the purpose of the bond is to indemnify the sheriff against any claim by the
intervenor to the property seized or for damages arising from such seizure, which the sheriff
was making and for which the sheriff was directly responsible to the third party (Fort Bonifacio
Development Corporationvs. Yllas Lending Corporation, G.R. No. 158997, October 6, 2008).

f. Discharge of attachment and the counter-bond

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 After a writ of attachment has been enforced, the party whose property has been attached,
or the person appearing on his behalf, may move for the discharge of the attachment
wholly or in part on the security given.
 Grounds for discharge:
1. Debtor has posted a COUNTER-BOND or makes a CASH DEPOSIT in an amount equal
to that fixed by the court in the order of attachment. But if the attachment is sought to be
discharged with respect to a particular property, the counter-bond shall be equal to the
value of that property as determined by the court. In either case, the cash deposit or the
counter-bond shall secure the payment of any judgment that the attaching party may
recover in the action (R57S12);
2. Attachment was improperly or irregularly issued or enforced, as where there is no ground
for attachment under Section 1 (R57S13);
3 . The bond filed is defective or insufficient (R57S13);
4. Attachment is excessive but the discharge shall be limited to the excess (R57S13);
5. Property attached is exempt from execution (R57S2 and R57S5);
6. Judgment is rendered against the attaching creditor (R57S19).

❖ A discharge of the attachment must be made only after hearing. Ex parte discharge is a
disservice to the orderly administration of justice (Peroxide Philippines Corporation vs.
Court of Appeals, 199 SCRA 882].

g. Satisfaction of judgment out of property attached

If judgment be recovered by the attaching obligee and execution issue thereon, the sheriff may
cause the judgment to be SATISFIED out of the property attached, if it be sufficient for that
purpose in the following manner:

1. By paying to the judgment obligee the proceeds of all sales of perishable or other property
sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the
judgment;
2. If any balance remain due, by selling so much of the property, real or personal, as may be
necessary to satisfy the balance, if enough for that purpose remain in the sheriff’s hands, or in
those of the clerk of the court;
3. By collecting from all persons having in their possession credits belonging to the judgment
obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the
amount of such credits and debts as determined by the court in the action, and stated in the
judgment, and paying the proceeds of such collection over to the judgment obligee.

The sheriff shall forthwith make a return in writing to the court of his proceedings under the section
and furnish the parties with copies thereof. (Rule 57, Sec. 15)

If after realizing upon all the property attached, any balance shall remain due, the sheriff must
proceed to collect such balance as upon ordinary execution.

Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, must return
to the judgment obligor the attached property remaining in his hands, and any proceeds of the
sale of the property attached not applied to the judgment. (Rule 57, Sec.16)

When the judgment has become executory, the surety or sureties on the counter-bond shall
become charged on such counter-bond and bound to pay the judgment oblige upon demand the
amount due under the judgment, which may be recovered from such surety or sureties after notice
and summary hearing in the same action. (Rule 57, Sec. 17)

Where the party, against whom attachment had been issued, has deposited the money instead
of giving counter-bond, it shall be applied under direction of the court to the satisfaction of any
judgment rendered in favour of the attaching party. 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. (Rule 57, Sec. 18)
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If judgment be rendered against the attaching party, all the proceeds of the sales and money
collected or received by the sheriff, under the order of attachment, and all property attached
remaining in any such sheriff’s hands, shall be delivered to the party against whom attachment
was issued, and the order of attachment discharged. (Rule 57, Sec. 19)

Preference of levy on attachment duly registered over a prior unregistered sale

The settled rule is that levy on attachment, duly registered, takes preference over a prior
unregistered sale. The preference created by the levy on attachment is not diminished even by
the subsequent registration of the prior sale. This is so because an attachment is a proceeding
in rem. It is against the particular property, enforceable against the whole world. The attaching
creditor acquires a specific lien on the attached property which nothing can subsequently
destroy except the very dissolution of the attachment or levy itself. The lien continues until
the debt is paid, or sale is had under execution issued on the judgment, or until the judgment is
satisfied, or the attachment discharged or vacated in some manner provided by law. Thus, in the
registry, the attachment in favor of respondents appeared in the nature of a real lien when
petitioner had his purchase recorded. The effect of the notation of said lien was to subject and
subordinate the right of petitioner, as purchaser, to the lien (Valdevieso vs. Damalerio, G.R. No.
133303, February 17, 2005, 451 SCRA 664, 670).

No sale of property covered by writ of preliminary attachment before prior judgment;

Exception
A writ of attachment is a provisional remedy and its issuance does not have the effect of a
final judgment over the property attached. Thus, the property cannot be sold before fiinal
judgment.
Exception: An attached property may be sold after levy on attachment and before entry of
judgment whenever it shall be made to appear to the court In which the action is pending, upon
hearing with notice to both parties, that (a) the attached property is perishable or that (b) the
interests of all the parties to the action will be subserved by the sale of the attached property
(Rule 57, Sec. 11; China Banking Corporation vs. Asian Corporation and Development
Corporation, G.R. No. 158271, April 8, 2008).

4. Preliminary Injunction(Rule 58)

a. Definitions and Differences: Preliminary Injunction and Temporary
Restraining Order
Temporary Restraining Order – may be issued ex parte or without a hearing, and is
effective for a limited period.
Preliminary Injunction - may not be issued ex parte and is effective while the main case
is pending

PRELIMINARY INJUNCTION
There is no power, the exercise of which, is more delicate which requires greater caution,
deliberation, and sound discretion, or (which is) more dangerous in a doubtful case than the
issuing of an injunction. It is the strong arm of equity that never ought to be extended unless
in cases of great injury, where courts of law cannot afford an adequate or commensurate
remedy in damages. (University of the Philippines v. Catungal, Jr. G.R. No. 121863 May 5,
1997, 272 SCRA 221,236 )

b. Requisites
Essential Requisites for the Issuance of Preliminary Injunction
1. There must be a right in esse or the existence of a right to be protected.
2. The act against which the injunction is to be directed is a violation of such right.
(Philippine Sinter Corporation et.al. vs Cagayan Electric Power and Light Co. Inc. GR No. 127371,
April 25, 2002. 381 SCRA 582)

a. A writ of preliminary injunction, as an ancillary or preventive remedy, may only be

resorted to by a litigant to protect or preserve his rights or interests and for no other
purpose during the pendency of the action. (China Banking Corporation v. Court of
Appeals G. R. No.121158, December 5,1996,265 SCRA 327.) It should only be granted
if the party asking for it is clearly entitled thereto. (Climaco vs. Macadaeg, 114 Phil.870
 9

[1962]; Subido v. Gopengco, G.R. No. 25618, March 28,1969, 27 SCRA 455; Police
Commission v. Bello, G.R. Nos. 29959-60, January 30, 1971, 37 SCRA 230; Capitol
Medical Center, Inc. v. Court of Appeals, G.R. No. 82499, Oct. 13,1989, 178 SCRA 493.)
b. An injunction will not issue to protect a right not in esse and which may never arise
or to restrain an act which does not give rise to a cause of action. ( Republic of the
Philippines v. Villarama G.R. No. 117733, September 5, 1997, 278 SCRA 736; Buayan
v. Quintillan, supra, note 315.) There must exist a clear and actual right to be
protected and that the acts against which the writ is to be directed are violative of
the established right. (G & S Transport Corporation vs CA 382 SCRA 262 GR No.
120287, May 28, 2002)

c. Kinds of Injunction
1. Preliminary prohibitory injunction – order granted at any stage of the action or proceeding
prior to judgment or final order requiring a party or court, agency or person to refrain from a
particular act or acts (Rule 58, Sec. 1)
2. Preliminary mandatory injunction – order granted at any stage of the action or proceeding
prior to the judgment or final order requiring the performance of a particular act or acts.
3. Final or permanent injunction - one issued in the judgment in the case permanently
restraining the defendant or making the preliminary injunction permanent.
❖Under the Rules of Court, probability is enough basis for injunction to issue as a provisional
remedy, which is different from injunction as a main action where one needs to establish
absolute certainty as basis for a final and permanent injunction.(Hernandez vs.
NAPOCOR, G.R. No. 145328, March 23, 2006).

d. When writ may be issued

Rule 58, Sec. 3. Grounds for issuance of preliminary injunction.
A preliminary injunction may be granted when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief
consists in restraining the commission or continuance of the act or acts complained of, or in
requiring the performance of an act or acts, either for a limited period or perpetually;

(b) That the commission, continuance or non-performance of the act or acts complained of
during the litigation would probably work injustice to the applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts probably in violation of the rights of the
applicant respecting the subject of the action or proceeding, and tending to render the
judgment ineffectual.

e. Grounds for issuance of preliminary injunction

PRELIMINARY INJUNCTI0N
Purpose of preliminary injunction – to preserve the status quo ante litem motam (status
before the suit) until the trial court hears fully the merits of the case. Its primary purpose is not to
correct a wrong already consummated or to redress an injury already sustained, or to punish
wrongful acts already committed, but to preserve and protect the rights of the litigant during the
pendency of the case (Bustamante vs. CA, April 17, 2002).

Injunction is a preservative remedy

Injunction is a preservative remedy for the protection of substantive rights or interests. It is not
a cause action in itself but merely a provisional remedy, an adjunct to a main suit.

Reason for injunction

So that the court may thereby prevent a threatened or continuous irremediable injury to
some of the parties before their claims can be thoroughly investigated and advisedly adjudicated.
The application of the writ rests upon an alleged existence of an emergency or of a special reason
 10

for such an order before the case can be regularly heard, and the essential conditions for granting
such temporary injunctive relief are that (a) the complaint alleges facts which appear to be
sufficient to constitute a cause of action for injunction and that (b) on the entire showing on both
sides, it appears, in view of all the circumstances, that the injunction is reasonably necessary to
protect the legal rights of the plaintiff pending the litigation.
(Estares vs. CA, 459 SCRA 604 [2005]).

Status quo sought to be preserved – the last actual, peaceable and uncontested situation
[LAPUS] which precedes a controversy. The status quo should be existing ante litem motam, or
at the time of the filing of the case. For this reason, a preliminary injunction should not establish
new relations between the parties, but merely maintain or re-establish the pre-existing relationship
between them (Bustamante vs. CA, supra).

Requisites for injunctive writ: (1) invasion of the right is material and substantial; (2) the right
of complainant is clear and unmistakable; (3) and there is an urgent and permanent necessity
of the writ to prevent serious damage.

Injunction not designed to protect contingent or future rights. Injunction will not issue to
protect a right not in esse and which may never arise, or to restrain an act which does not give
rise to a cause of action.
The complainant’s right or title must be CLEAR AND UNQUESTIONED, for equity, as a rule,
will not take cognizance of suits to establish title, and will not lend its preventive aid where the
complainant’s title or right is doubtful or disputed. The possibility of irreparable damage, without
proof of violation of an actual existing right, is no ground for an injunction, being mere damnum
absque injuria (Ulang vs. CA, 225 SCRA 637 [1993]).

Distinguished from Prohibition

INJUNCTION PROHIBITION
Generally directed against a party Generally directed against a court,
tribunal or personal exercising judicial
powers
Does not involve the jurisdiction of the May be on the ground that court is acting
court without or in excess of jurisdiction
May be the main action or provisional Always a main action
remedy only

MANDATORY INJUNCTION

Strict requisites for mandatory injunction. Since it commands the performance of an act,
a mandatory injunction does not preserve the status quo and is thus more cautiously regarded
than a mere prohibitive injunction (Gateway Electronics Corporation vs. Land Bank of the
Philippines, July 30, 2003, 407 SCRA 454,).

When injunction improper

Tay Chun Suy vs.CA, 229 SCRA 151 (1994) -
As between the buyer of a vessel at a prior extrajudicial foreclosure and the buyer at a
subsequent auction sale, both buyers failing to register their transactions, who has a better right
of dominion over the vessel?
Rule that no court has the power to interfere by injunction with the judgments of another court
with concurrent or coordinate jurisdiction applies only when NO PARTY CLAIMANT involved.
When a third party or a stranger to the action asserts a claim over the property levied upon, the
claimant may vindicate his claim by an independent action in the proper civil court which may stop
the execution of the judgment on property not belonging to the judgment debtor.
 11

Cases where injunction was held improper

1. To restrain collection of taxes except where there are special circumstances that bear the
existence of irreparable injury. ( Churchill & Tait v. Rafferty, 32 Phil. 580 [1915]).
2. To restrain the sale of conjugal properties where the claim can be annotated on the title
as a lien such as the husband’s obligation to give support. (Saavedra v. Estrada 56 Phil.
33 [1931])
3. To restrain a mayor proclaimed as duly elected from assuming his office. ( Cereno v.
Dictado, No. L-81550, April 15, 1988, 160 SCRA 759.)

4. To restrain consummated or ministerial acts:

a. Not proper to restrain against disposing a case on the merits. (Government
Service Insurance System (GSIS) v. Florendo, G.R. NO. 48603, September 29,
1989, 178 SCRA 76; Ortigas and Company Limited Partnership v. Court of
Appeals, No. L-79128, June 16, 1988, 162 SCRA 165.)
b. Not proper to stop the execution of judgment where the judgment was already
executed. (Meneses v. Dinglasan, 81 Phil. 470 [1948])
c. The Regional Trial Court has no power to issue a writ of injunction against the
Register of Deeds if its effect is to render nugatory a writ of execution issued by
the National Labor Relations Commission. (Ambrosio v. Salvador, No. L-47651,
December 11, 1978, 87 SCRA 217.)
d. A writ of injunction is not proper to stop the execution of judgment where the
judgment was already executed. (Meneses v. Dinglasan, 81 Phil. 470 [1948])
e. But where the lower court enforced its judgment before a party against whom
the execution was enforced could elevate his or her appeal in an injunction
suit, which was instituted to prevent said execution, an independent petition for
injunction in the Court of Appeals is justified. (Manila Surety and Fidelity v.
Teodoro, G.R. No. 20530, June 29, 1967, 20 SCRA 463)
f. A writ of injunction should never issue when an action for damages would
adequately compensate the injuries caused. The very foundation of the
jurisdiction to issue the writ of injunction rests in the possibility of irreparable
injury, inadequacy of pecuniary compensation and the prevention of the
multiplicity of suits. Where facts are not shown to bring the case within these
conditions, the reliefs of injunction should be refused. (Golding vs. Balabat, 36
Phil. 941)

Laws prohibiting injunction

 PD 605 – cases involving concessions, licenses, and other permits issued by public
administrative officials or bodies for exploitation of natural resources
 PD 1818 – cases involving infrastructure and natural resources projects of, and public
utilities operated by, the government [exc. Non-compliance with procedural rules on
bidding]
 PD 385 – against any government financial institution taking foreclosure of loans of
which at least 20% thereof are outstanding
Exceptions:
1. These laws do not deprive the Supreme Court of the authority to issue temporary restraining
orders in appropriate cases pending before it. For any law which restricts the power of the
Supreme Court vested in it by the Constitution will be null and void.
2. These decrees and similar statutes do not preclude the issuance of preliminary injunction
by the lower courts where: (a) there is grave abuse of discretion amounting to lack of
jurisdiction; (b) officials concerned committed irregularities; (c) question of law involved; (d)
officials concerned put the law into their hands and violated the applicant’s rights.

Writ of preliminary injunction may not be issued ex parte

A writ of preliminary injunction shall not be granted without prior notice and hearing to the party
or person sought to enjoined (Rule 58, Sec. 5). Reason: the preliminary injunction may cause
grave and irreparable injury to the person enjoined.
However, temporary restraining order may be issued ex parte
 12

1. If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable
injury, the court may issue a TRO effective only for 72 hours from issuance, renewable after
summary hearing for a period not exceeding 20 days including the original 72 hours.

2 Only a TRO issued after a summary hearing can last for a period of twenty days. (Mayor
Sampiano v. Judge Indar, A.M. No. RTJ-05-1953; December 21, 2009 - TDC)

Issues on jurisdiction

1. Pursuant to the policy of judicial stability, the judgment or order of a court of competent
jurisdiction may not be interfered with by any court of concurrent jurisdiction (Javier vs.
Court of Appeals, February 16, 2004, 423 SCRA 11; See also Chings vs. Court of Appeals,
February 24, 2003, 398 SCRA 88). Exc. Third party claim

2. Injunctions issued by the Regional Trial Courts are limited to acts committed or to be
committed within its territorial jurisdiction. The doctrine is, however, limited to prohibitory
and injunctive writs.
Section 21 of BP 129 reads: “Original jurisdiction in other cases – Regional Trial Courts
shall exercise original jurisdiction (1) in the issuance of writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunction which may be enforced in any party
of their respective regions.”

3. Judge's authority to issue a writ of preliminary injunction only within his/her territorial
jurisdiction
As the presiding judge of RTC, Marawi City, he should have known that Makati City was
way beyond the boundaries of his territorial jurisdiction insofar as enforcing a writ of preliminary
injunction is concerned. Section 21(1) of B.P. Blg. 129, as amended, provides that the RTC
shall exercise original jurisdiction in the issuance of writs of certiorari, prohibition, mandamus,
quo warranto, habeas corpus and injunction which may be enforced in any part of their
respective regions (Gomos vs. Adiong, A.M. No. RTJ-04-1863, October 22, 2004, 441 SCRA
162).

Allgemeine-Bau-Chemie Phils., Inc. vs. Metropoliltan Bank & Trust

Company, 482 SCRA 247 (2006)

1. An original action for injunction is outside the jurisdiction of the Court of Appeals.
2. The appellate court’s jurisdiction to grant a writ of preliminary injunction is limited to the actions
or proceedings before it or in a petition for certiorari, prohibition or mandamus under Rule 65.
3. An order granting or denying a preliminary injunction is not appeal

f. Grounds for objection to, or for the dissolution of injunction or restraining order
1. Insufficiency of application
2. Other grounds (e.g. applicant’s bond is insufficient/defective), upon affidavits of the party
or person enjoined, which may be opposed by the applicant also by affidavits.
3. If it appears after hearing that although the applicant is entitled to the injunction or
restraining order, the issuance or continuance thereof would cause irreparable damage to the
party or person enjoined, while the applicant can be fully compensated for such damages as
he may suffer, and the former files a bond in an amount fixed by the court conditioned that he
will pay all damages which the applicant may suffer by the denial or the dissolution of the
injunction or restraining order.
4. If it appears that the extent of the preliminary injunction or restraining order granted is too
great, it may be modified (Rule 57, Sec. 6).

Not allowed to Transfer Possession

A court should not, by means of a preliminary injunction, transfer the property in litigation from
the possession of one party to another where the legal title is in dispute and the party having
possession asserts ownership thereto. (Toyota Motors Philippines Corporation v. Court of
Appeals, G.R. No. 102881, Dec. 7, 1992, 216 SCRA 236). The function of injunction is to
 13

preserve the statues quo ante. (Knecht v. Court of Appeals, G.R. No. 56122, November 18,
1993, 228 SCRA 1)
This is more particularly applicable where the legal title is in dispute and the party having
possession asserts ownership in himself. (Gordillo and Martinez v. Del Rosario, 39 Phil. 829
[1919] )

Exceptions
a. Forcible entry in which the Court may issue preliminary mandatory injunction (Rule 70, Sec.
15) and by Section 20 thereof involving leases in which the court may, on appeal, grant
similar mandatory injunctive relief. The exception applies only to ejectment cases
exclusively cognizable by the municipal trial court. (Ramos v. Court of appeals, G.R. 81354,
July 26, 1988, 163 SCRA 583 )
b. Property covered by Torrens Title when there is a clear finding of ownership and possession
of the land or unless the subject property is covered by a Torrens Title pointing to one of
the parties as the undisputed owner. (GSIS v. Florendo, supra, note 329; Cagayan de Oro
City Landless Residents Association, Inc. v. Court of Appeals, G.R. No. 106043, March 4,
1996, 254 SCRA 229)

Injunctions not issued where act sought to be prevented had been committed /
consummated acts (fait accompli)

1. The remedy of injunction could no longer be availed of where the act to be prevented
had long been consummated. Where a span of seven years has intervened from the
time the award of the lot has already been accomplished to the time petitioners’
complaint for injunction was filed, injunction would just be an exercise in futility (Zabat
vs. CA, August 23, 2000, 338 SCRA 551).

2. A writ of preliminary injunction will not issue if the act sought to be enjoined is a fait
accompli or an accomplished or consummated act (Transfield Philippines, Inc., vs.
Luzon Hydro Corporation, November 22, 2004, 443 SCRA 307). By issuing a
temporary restraining order and writ of preliminary injunction enjoining the eviction of
the respondents, the Court of Appeals allowed the respondents to stay in the property
despite the mandatory provision of Section 19, Rule 70 of the Rules of Court. The
appellate court, in effect, granted the same injunctive relief which the respondents
failed to secure from the Regional Trial Court due to their procedural lapse (David vs.
Navarro, February 11, 2004, 422 SCRA 499).

SUMMARY LIST OF INSTANCES WHERE PRELIMINARY INJUNCTION IS PROHIBITED:

1.Injunction against courts or tribunals of co-equal rank prohibited. (Roldan, Jr. v.

Arca, G.R. No. 25434, July 25, 1975, 65 SCRA 336)
2.Injunction orders are prohibited in labor cases. (Associated Labor Union (AKU-
TUCP) v. Borromeo, No. L-75736, September 29, 1988, 166 SCRA 99; Kaisahan
ng Mga Manggagawa v. Sarmiento, No. L-47853, November 16, 1984, 133
SCRA 220)
3.Injunction beyond prayer in complaint (The Chief of Staff, AFP v. Guadiz, Jr., No.
L-35007, December 29, 1980, 101 SCRA 827) Enjoining the prosecution of
criminal proceedings. (Romero v. The Chief of Staff, AFP, G.R. No. 84076,
February 20, 1989, 170 SCRA 108; Reyes v. Camilon, G.R. No. 46198,
December 20, 1990, 192 SCRA 445 )
4.Injunctions to prevent the implementation of government infrastructure projects.
(Section 3 RA 8975)
5.Injunctions to prevent the implementation or execution of contracts for the
operation of a public utility. (G&S Transport Corporation vs CA 382 SCRA 262
GR No. 120287, May 28, 2002)
6. Injunctions to prevent the foreclosure of real estate mortgages by government
financing institutions (OCA Circular no. 93-2004 in relation to Sec. 21 Rule 141 of
the Rules of Court, Sec.3 PD 385 and Administrative Circular No. 07-99)
7. Injunctions to prevent the Anti Money Laundering Council from issuing and /or
implementing freeze orders, with the exception of writs issued by the Court of
Appeals and the Supreme Court (RA 9160 as amended by RA 9194)
 14

8. Injunctions to restrain the Presidential Agrarian Reform Council from performing

its tasks (Section 55 RA 6657)
9. Injunctions against public administrative officers in the issuance of public grants
for the exploitation of natural resources (PD 605)

Period to decide case when a higher court issues a writ of preliminary injunction against
a lower court, board or tribunal :
The trial court, the Court of Appeals, the Sandiganbayan or the Court of Tax Appeals that
issued a writ of preliminary injunction against a lower court, board, officer or quasi-judicial agency
shall decide the main case or the petition within six months from the issuance of the writ.
Under this provision, higher courts that restrain a lower court from proceeding with a case
by issuing a writ of preliminary injunction must decide the main case or petition within six months
in order not to unduly delay the main case lodged in a lower court. (Section 5, Rule 58, as
amended by A.M. No. 07-7-12-SC which took effect on December 27, 2007)

g. Duration of TRO
Effectivity of TRO
RTC - 20 days
CA - 60 days
SC - until further orders

h. In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases

involving government infrastructure projects
Statutory Prohibitions against the Issuance of a Writ of Preliminary Injunction or
preliminary mandatory injunction

Under Rep. Act No. 8975

The issuance of temporary restraining orders, preliminary injunctions, or preliminary
mandatory injunctions against government infrastructure projects is prohibited under this
law.
Section 3 RA 8975 states that “No court, except the Supreme Court shall issue any
TRO or preliminary injunction or preliminary mandatory injunction against the government,
or any of its subdivisions or officials, whether public or private acting under the government
direction to restrain, prohibit or compel the following acts:
1. Acquisition, clearance and development of the right-of-way and/or site or location of
any national government project;
2. Bidding or awarding of contract/ project of the national government;
3. Commencement, prosecution, execution, implementation, operation of any such
contract or project;
4. Termination or rescission of any such contract/project; and
5. The undertaking or authorization of any other lawful activity necessary for such
contract/project.”

This law expressly repealed Presidential Decree No. 605 (prohibiting injunction
involving concessions, licenses and other permits issued by public administrative office or
bodies for the exploitation of natural resources) and Presidential Decree No. 1818
(prohibiting injunction in cases involving infrastructures and natural resources development
and public utilities). (National Power Corporation vs. Vera, G.R. No. 83558, Feb. 27, 1989,
170 SCRA 721)
.

*** R.A. 8975 prohibits the issuance of TRO and/or writ of preliminary injunction against
national government infrastructure projects, not merely national government projects. While the
E-Passport Project is national in scope, it is an information and communication technology
project with no relation to infrastructure or any civil works component. Hence, it is
excluded from the coverage of R.A. 8975 and may be stayed by a writ of injunction.
(Department of Foreign Affairs vs. Falcon, G.R. No. 176657; September 1, 2010) - TDC
 15

i. Rule on prior or contemporaneous service of summons in relation to

attachment (out of place here)

5. Receivership (Rule 59)

Receiver defined
Receiver is a representative of the court appointed for the purpose of PRESERVING AND
CONSERVING the property in litigation and prevent its possible destruction or dissipation, if it
were left in the possession of any of the parties. He is not the representative of any or the parties
but by all of them to the end that their interests may be equally protected with the least possible
inconvenience and expense.

a. Cases when receiver may be appointed

b. Requisites
Rule 59, Section 1. Appointment of receiver.

Upon a verified application, one or more receivers of the property subject of the action or
proceeding may be appointed by the court where the action is pending, or by the Court of
Appeals or by the Supreme Court, or a member thereof, in the following cases:

(a) When it appears from the verified application, and such other proof as the court may
require, that the party applying for the appointment of a receiver has an interest in the property
or fund which is the subject of the action or proceeding, and that such property or fund is in
danger of being lost, removed, or materially injured unless a receiver be appointed to
administer and preserve it;

(b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the
property is in danger of being wasted or dissipated or materially injured, and that its value is
probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in
the contract of mortgage;

(c) After judgment, to preserve the property during the pendency of an appeal, or to dispose
of it according to the judgment, or to aid execution when the execution has been returned
unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment,
or otherwise to carry the judgment into effect;

(d) Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of the property in
litigation.

During the pendency of an appeal, the appellate court may allow an application for the
appointment of a receiver to be filed in and decided by the court of origin and the receiver
appointed to be subject to the control of said court.

c. Requirements before issuance of an Order

Rule 59, Sec. 2. Bond on appointment of receiver.

Before issuing the order appointing a receiver the court shall require the applicant to file a bond
executed to the party against whom the application is presented, in an amount to be fixed by the
court, to the effect that the applicant will pay such party all damages he may sustain by reason of
the appointment of such receiver in case the applicant shall have procured such appointment
without sufficient cause; and the court may, in its discretion, at any time after the appointment,
require an additional bond as further security for such damages. (3a)

d. General powers of a receiver

Rule 59, Sec. 6. General powers of receiver.
Subject to the control of the court in which the action or proceeding is pending, a receiver shall
have the power to bring and defend, in such capacity, actions in his own name; to take and keep
 16

possession of the property in controversy; to receive rents; to collect debts due to himself as
receiver or to the fund, property, estate, person, or corporation of which he is the receiver; to
compound for and compromise the same; to make transfers; to pay outstanding debts; to divide
the money and other property that shall remain among the persons legally entitled to receive the
same; and generally to do such acts respecting the property as the court may authorize. However,
funds in the hands of a receiver may be invested only by order of the court upon the written
consent of all the parties to the action.

No action may be filed by or against a receiver without leave of the court which appointed him.

e. Two (2) [actually 3] kinds of bonds

1. applicant’s bond (Rule 59, Sec. 2)
2. counterbond (Rule 59, Sec. 3)
3. receiver’s bond (Rule 59, Sec. 4)

f. Termination of receivership
Rule 59, Sec. 8. Termination of receivership; compensation of receiver.
Whenever the court, motu proprio or on motion of either party, shall determine that the necessity
for a receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle
the accounts of the receiver, direct the delivery of the funds and other property in his possession
to the person adjudged to be entitled to receive them, and order the discharge of the receiver
from further duty as such. The court shall allow the receiver such reasonable compensation as
the circumstances of the case warrant, to be taxed as costs against the defeated party, or
apportioned, as justice requires.

Receivership other than that under Rule 58

1. Receivership in aid of execution of judgment under Rule 39, Sec. 1
2. Bank receivership
3. Receivership in petitions for insolvency under the Insolvency Law

Appointment of a Receiver
The general rule is that neither party to the litigation should be appointed as a receiver
without the consent of the other because a receiver is supposed to be an impartial and
disinterested person. (Alcantara v. Abbas, No. L-14890, September 30, 1963, 9 SCRA 54 )A
clerk of court should not be appointed as a receiver as he is already burdened with his official
duties. (Abrigo v. Kayanan, No. L-28601, March 18, 1983, 121 SCRA 20)

Specific situations when a receiver may be appointed

.1. Family Code, Article 101

If a spouse, without just cause, abandons the other or fails to comply with his or his
obligations to the family, the aggrieved spouse may petition the court for receivership.

2. Sec. 41, Rule 39

The court may appoint a receiver of the property of the judgment obligor; and it may also
forbid the transfer or other disposition of, or any interference with, the property of the judgment
obligor not exempt from execution.

3. After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver
of the property under litigation since this matter does not touch upon the subject of the appeal.
(Rules of Court, Rule 41, Sec. 9; Acuña v. Caluag, 101 Phil. 446 [1957])

4. After final judgment, a receiver may be appointed as an aid to the execution of

judgment. (Philippine Trust Company v. Santamaria, 53 Phil. 463 [1929])

5. Appointment of a receiver over the property in custodia legis may be allowed when it
is justified by special circumstances as when it is reasonably necessary to secure and protect
the rights of the real owner. (Dolar v. Sundiam, No. L-27631, April 30, 1971, 38 SCRA 616)
 17

6. In a petition for corporate rehabilitation, when the court finds the same to be
sufficient in form and substance, the Court shall, within five days from filing of the petition
appoint a Rehabilitation and fix his bond. (Rules of Procedure on Corporate Rehabilitation
2008)

6. Replevin (Rule 60)

What is replevin?
Replevin or delivery of personal property consists in the delivery, by order of the court, of
personal property by the defendant to the plaintiff upon filing of a bond.

Replevin and attachment distinguished

Preliminary Attachment Replevin

Available even if recovery of personal
property is only incidental relief in the
action
Can be resorted to even if personal
property is in the custody of a third
person
Extends to all kinds of property
To recover possession of personal
property unjustly detained;
Presupposes that it is being
concealed, removed, or disposed to
prevent its being found or taken by the
applicant
Can be resorted to even if property is
in custodia legis
Available only if principal relief
sought is recovery of personal
property; Relief for damages are
only incidental
Can be sought only where
defendant is in actual or
constructive possession of the
personality involved
Extends only to personal property
capable of manual delivery
To recover personal property even
if it is not being concealed,
removed, or disposed of
Cannot be availed of if property is
under custodia legis

a. When may writ be issued

b. Requisites
Steps in the Issuance and Implementation of a Writ of Replevin

1. A party praying for the recovery of possession of a personal property files with the court
at the commencement of the action or before answer an application for a writ of replevin.
(Rule 60, Sec. 1)

2. To accompany the application is the AFFIDAVIT which should state:

a) that the applicant is the owner of the property claimed, particularly describing
it, or is entitled to the possession thereof;
b) that the property is wrongfully detained by the adverse party, alleging the
cause of detention thereof according to the best of knowledge, information, and
belief;
c) that the property has not been distrained or taken for a tax assessment or a
fine pursuant to law, or seized under a writ of execution or preliminary
attachment, or otherwise placed under custodia legis, or if so seized , that it is
exempt from such seizure or custody; and
d) the actual market value of the property
 18

Notes:
1) The applicant for a writ of replevin need not be the owner for it is enough that he
has a right to posses it. (Yang v. Valdez, G.R. No. 73317, August 31, 1989, 177
SCRA 141)

2) Replevin cannot be availed of if the property is in custodia legis or where it is under

attachment or was seized under a search warrant (Pagkalinawan v. Gomez, Nos.
L-22585, December 16, 1967, 21 SCRA 1275; Rules of Court, Rule 60, Sec. 2 ( c
) except:

a) when the seizure is illegal; (Bagalihog v. Fernandez, G.R. No. 96356,

June 27, 1991, 198 SCRA 614) and
b) where there is reason to believe that the seizure will not anymore be
followed by the filing of the criminal action in court or there are conflicting
claims. (Chua v. Court of Appeals, G.R. No. 79021, May 17, 1993, 222
SCRA 85)

3) The defendant is entitled to the return of the property taken under a writ of replevin if
the following requisites are met:

1) he posts a redelivery bond and

2) he furnishes the plaintiff of a copy of the undertaking within five (5)
3) days from taking and
4) the bond is sufficient and in proper form. (Rule 60, Secs. 5 and 6)

Note: The RTC had no jurisdiction to take cognizance of the petition for replevin by
respondents, issue the writ of replevin and order its enforcement. The Collector of
Customs had already seized the vehicles and set the sale thereof at public auction. The RTC
should have dismissed the petition for replevin at the outset. By granting the plea of
respondents (plaintiffs below) for the seizure of the vehicles and the transfer of custody to the
court, the RTC acted without jurisdiction over the action and the vehicles subject matter
thereof. The forfeiture of seized goods in the Bureau of Customs is a proceeding against the
goods and not against the owner. It is in the nature of a proceeding in rem, i.e., directed against
the res or imported articles and entails a determination of the legality of their importation. In
this proceeding, it is, in legal contemplation, the property itself which commits the violation and
is treated as the offender, without reference whatsoever to the character or conduct of the
owner (Asian Terminals, Inc. vs. Bautista-Ricafort, G.R. No. 166901, October 27, 2006).

c. Affidavit and bond; Redelivery Bond

Rule 60, Sec. 2. Affidavit and bond.

The applicant must show by his own AFFIDAVIt or that of some other person who personally
knows the facts:

(a) That the applicant is the owner of the property claimed, particularly describing it, or is
entitled to the possession thereof;

(b) That the property is wrongfully detained by the adverse party, alleging the cause of
detention thereof according to the best of his knowledge, information, and belief;

(c) That the property has not been distrained or taken for a tax assessment or a fine pursuant
to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under
custodia legis, or if so seized, that it is exempt from such seizure or custody; and

(d) The actual market value of the property.

The applicant must also give a BOND, executed to the adverse party in DOUBLE THE
VALUE of the property as stated in the affidavit aforementioned, for the return of the property
to the adverse party if such return be adjudged, and for the payment to the adverse party of
such sum as he may recover from the applicant in the action.

Order of Replevin
 19

1) Upon the filing of such affidavit and approval of the bond, the court shall issue an ORDER
and the corresponding WRIT OF REPLEVIN describing the personal property alleged to be
wrongfully detained and requiring the sheriff forthwith to take such property into his custody.
(R60S3)
2) A writ of replevin may be served anywhere in the Philippines

Redelivery bond
If the adverse party objects to the sufficiency of the applicant’s bond, or of the surety or sureties
thereon, he cannot immediately require the return of the property. But if he does not so object,
he may, at any time before the delivery of the property to the applicant, require the return thereof,
by filing with the court where the action is pending a redelivery bond—that is, a bond executed
to the applicant:
1. In DOUBLE THE VALUE of the property as stated in the applicant’s affidavit for the delivery of
the property to the applicant, if such delivery be adjudged; and
2. For the payment of such sum to him as may be recovered against the adverse party; and
3. By serving a copy of such bond on the applicant.(R60S5)

d. Sheriff’s duty in the implementation of the writ; when property is claimed by

third party
Disposition of property by sheriff
1) The sheriff shall retain the property for 5 days. The adverse party may object to the sufficiency
of the bond or surety or he may file a redelivery bond.
2) If after 5 days and the adverse party failed to object or his redelivery bon is insufficient, the
sheriff shall deliver the property to the applicant (R60S6)
3)The defendant is entitled to the return of the property under writ of replevin if:
a. He seasonably posts a redelivery bond (R60S5)
b. Plaintiff’s bond is found to be insufficient or defective and is not replaced with a proper
bond.
c. Property is not delivered to plaintiff for any reason (R60S6)

Rule 60, Sec. 7. Proceedings where property claimed by third person.

➢ The third person against whom the writ or replevin had been issued must make an
 AFFIDAVIT of his title thereto, or right to the possession thereof,
 stating the grounds of such right or title, and
 serves such affidavit upon the sheriff while the latter has possession of the property
and a copy thereof upon the applicant
The sheriff shall not be bound to keep the property as a general rule.

➢ The sheriff is bound to keep the property when the applicant, on demand of the sheriff,
files a BOND approved by the court to INDEMNIFY the third-party claimant in a sum not
less than the value of the property under replevin (indemnity bond)

➢ In case of disagreement as to such value, the court shall determine the same

➢ No claim for damages for the taking or keeping of the property may be enforced against
the bond unless the action therefor is filed within one hundred twenty (120) days from the
date of the filing of the bond.

➢ The sheriff shall not be liable for damages for the taking or keeping of such property, to
any such third-party claimant, if such bond is filed.

➢ The proceedings set forth above shall not prevent such claimant or any third person from
vindicating his claim to the property, in the same or a separate action.

➢ or prevent the applicant from claiming damages against a third-party claimant who filed a
frivolous or plainly spurious claim, in the same or a separate action.
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➢ When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer
duly representing it, the filing of such bond shall not be required, and in case the sheriff is
sued for damages as a result of the attachment, he shall be represented by the Solicitor
General, and if held liable therefor, the actual damages adjudged by the court shall be
paid by the National Treasurer out of the funds to be appropriated for the purpose.