REMEDIAL LAW REVIEWER enough that a claim may be made by such
Part VI of IX defendants.
SPECIAL CIVIL ACTIONS
I. Civil Procedure
A. Special Civil Actions (Rule 62-71)
1. Interpleader
a. Definition
A person who has property in his possession or
an obligation to render, wholly or partially
without claiming any right therein, or an
interest in which in whole or in part is not
disputed by the claimants, comes to court and
asks that the persons who consider themselves
entitled to demand compliance with the
obligation be required to litigate among
themselves in order to determine finally who is
entitled to the same.
b. Rule 62
General Procedure in Interpleader
1. complaint for interpleader is filed
2. court issues order requiring the claimants to
interplead
3. summons served on the claimants
4. claimants may file MtD on the unique
ground of impropriety of interpleader action,
MtD tolls period to file answer
5. court resolves MtD; claimant has remaining
period to file answer or at least 5 days
from notice of denial
6. claimants file answer within 15 days from
receipt of summons
7. opposing claimants may file a reply
8. pre-trial
9. court “determine(s) their respective rights
and adjudicate their several claims”
Section 1. When interpleader proper. —
Whenever conflicting claims upon the same
subject matter are or may be made against a
person who claims no interest whatever in the
subject matter, or an interest which in whole
or in part is not disputed by the claimants, he
may bring an action against the conflicting
claimants to compel them to interplead and
litigate their several claims among themselves.
(1a, R63)
Note that the plaintiff need not wait for each
defendant to make a formal demand. It is
Sec. 2. Order. — Upon the filing of the
complaint, the court shall issue an order
requiring the conflicting claimants to interplead
with one another. If the interests of justice so
require, the court may direct in such order that
the subject matter be paid or delivered to the
court. (2a, R63)
Sec. 3. Summons. — Summons shall be
served upon the conflicting claimants, together
with a copy of the complaint and order. (3,
R63)
Note that the plaintiff does not furnish the
defendant copies of his complaint. He need
only file his complaint with the court. It is the
responsibility of the court to issue the
summons and to serve a copy of the
complaint.
Sec. 4. Motion to dismiss. — Within the
time for filing an answer, each claimant may
file a motion to dismiss on the ground of
impropriety of the interpleader action or on
other appropriate grounds specified in Rule 16
(motion to dismiss). The period to file the
answer shall be tolled and if the motion is
denied, the movant may file his answer within
the remaining period, but which shall not be
less than five (5) days in any event, reckoned
from notice of denial. (n)
The defendants must file their answer within
the standard 15 days from receipt of the
summons.
Sec. 5. Answer and other pleadings. —
Each claimant shall file his answer setting forth
his claim within fifteen (15) days from service
of the summons upon him, serving a copy
thereof upon each of the other conflicting
claimants who may file their reply thereto as
provided by these Rules. If any claimant fails to
plead within the time herein fixed, the court
may, on motion, declare him in default and
thereafter render judgment barring him from
any claim in respect to the subject matter.
The parties in an interpleader action may
file counterclaims, cross-claims, third-party
complaints and responsive pleadings thereto, as
provided by these Rules. (4a, R63)
Sec. 6. Determination. — After the
pleadings of the conflicting claimants have
been filed, and pre-trial has been conducted in
accordance with the Rules, the court shall
proceed to determine their respective rights
and adjudicate their several claims. (5a, R63)
 Sec. 7. Docket and other lawful fees, costs
and litigation expenses as liens. — The docket
and other lawful fees paid by the party who
filed a complaint under this Rule, as well as the
costs and litigation expenses, shall constitute a
lien or charge upon the subject matter of the
action, unless the court shall order otherwise.
(6a, R63)
c. Cases
Mesina v. IAC, 145 SCRA 497
(1986)
Facts: Go’s lost check was presented for
payment by Mesina. Check was dishonored.
Mesina now claims from the drawer bank. Bank
files action for interpleader naming Go and
Mesina as respondents. Court orders
respondents to file their answers.
Held: Interpleader was a proper remedy. An
order to file an answer is proper and equivalent
to an order to interplead. Failure to file an
answer results in the party being declared in
default.
2. Declaratory Relief and Similar
Remedies
a. Rule 63
Section 1. Who may file petition. — Any
person interested under a deed, will, contract
or other written instrument, whose rights are
affected by a statute, executive order or
regulation, ordinance, or any other
governmental regulation may, before breach or
violation thereof, bring an action in the
appropriate Regional Trial Court to determine
any question of construction or validity arising,
and for a declaration of his rights or duties,
thereunder.
An action for the reformation of an
instrument, to quiet title to real property or
remove clouds therefrom, or to consolidate
ownership under Article 1607 of the Civil Code,
may be brought under this Rule. (1a, R64)
Cf Article 1607 NCC:
Art. 1607. In case of real
property, the consolidation of
ownership in the vendee by virtue
of the failure of the vendor to
comply with the provisions of
article 1616 shall not be recorded
in the Registry of Property
without a judicial order, after the
vendor has been duly heard.
Cf Article 1616 NCC:
Art. 1616. The vendor cannot
avail himself of the right of
repurchase without returning to
the vendee the price of the sale,
and in addition:
1. The expenses of the contract,
and any other legitimate
payments made by reason of
the sale;
2. The necessary and useful
expenses made on the thing
sold.
Requisites for declaratory relief
1. plaintiff is interested under a deed, will,
contract or other written instrument
2. plaintiff’s rights are affected by a statute,
executive order or regulation, ordinance, or
any other governmental regulation
3. before breach or violation thereof
4. bring an action in the appropriate RTC
5. purpose is
a. t o d e t e r m i n e a n y q u e s t i o n o f
construction or validity arising
thereunder, and
b. for a declaration of his rights or duties
thereunder
An action for declaratory relief may also be
brought for the reformation of an instrument,
to quiet title to real property or remove clouds
therefrom, or to consolidate ownership.
To register his title to real property bought
with a right of redemption, the buyer must file
an action for declaratory relief.
cf Art. 1607 and 1616 NCC
Art. 1607. In case of real property, the
consolidation of ownership in the vendee
by virtue of the failure of the vendor to
comply with the provisions of article
1616 shall not be recorded in the
Registry of Property without a judicial
order, after the vendor has been duly
heard. (n)
Art. 1616. The vendor cannot avail
himself of the right of repurchase
without returning to the vendee the
price of the sale, and in addition:
(1) The expenses of the contract,
and any other legitimate payments made
by reason of the sale;
 (2) The necessary and useful
expenses made on the thing sold.
(1518)
Moreover, the action should be predicated on
the ff conditions:
1. there must be a justiciable controversy;
2. the controversy must be between persons
whose interest are adverse;
3. the party seeking declaratory relief must
have a legal interest in the controversy; and
4. the issue involved must be ripened for
judicial determination. (Tolentino vs. Board
of Accountancy, 90 Phil., 83).
Sec. 2. Parties. — All persons who have or
claim any interest which would be affected by
the declaration shall be made parties; and no
declaration shall, except as otherwise provided
in these Rules, prejudice the rights of persons
not parties to the action. (2a, R64)
Sec. 3. Notice on Solicitor General. — In
any action which involves the validity of a
statute, executive order or regulation, or any
other governmental regulation, the Solicitor
General shall be notified by the party assailing
the same and shall be entitled to be heard
upon such question. (3a, R64)
Sec. 4. Local government ordinances. — In
any action involving the validity of a local
government ordinance, the corresponding
prosecutor or attorney of the local
governmental unit involved shall be similarly
notified and entitled to be heard. If such
ordinance is alleged to be unconstitutional, the
Solicitor General shall also be notified and
entitled to be heard. (4a, R64)
Sec. 5. Court action discretionary. —
Except in actions falling under the second
paragraph of section 1 of this Rule, the court,
motu proprio or upon motion, may refuse to
exercise the power to declare rights and to
construe instruments in any case where a
decision would not terminate the uncertainty or
controversy which gave rise to the action, or in
any case where the declaration or construction
is not necessary and proper under the
circumstances. (5a, R64)
Grounds for the court to refuse to exercise
declaratory relief
1. a decision would not terminate the
uncertainty or controversy which gave rise
to the action, or
2. the declaration or construction is not
necessary and proper under the
circumstances.
Sec. 6. Conversion into ordinary action. —
If before the final termination of the case, a
breach or violation of an instrument or a
statute, executive order or regulation,
ordinance, or any other governmental regulation
should take place, the action may thereupon be
converted into an ordinary action, and the
parties shall be allowed to file such pleadings
as may be necessary or proper. (6a, R64)
Ordinary civil action – plaintiff alleges that his
right has been violated by the defendant;
judgment rendered is coercive in character; a
writ of execution may be executed against the
defeated party
Special civil action of declaratory relief – an
impending violation is sufficient to file a
declaratory relief; no execution may be issued;
the court merely makes a declaration
b. Cases
Edades v. Edades, 99 Phil 675
(1956)
The determination of hereditary rights in the
estate of a living person is not a proper
subject of an action for declaratory relief. The
remedy is declaratory relief for declaration of
filiation.
Santos v. Aquino, 94 Phil 65
(1953)
Declaratory relief for construction is not a
proper remedy where the terms of the
questioned ordinance are are clear and
unambiguous. The remedy of declaratory relief
for invalidity is precluded by a breach (e.g. the
tax imposed by the questioned ordinance is
already due when the case was filed). Finally,
an action for declaratory relief must also be
brought by a real party in interest.
Note: Had the case been filed before the taxes
became due, the action would have been
converted into an ordinary civil action.
Gomez v. Palomar, 25 SCRA 827
(1968)
A requisite for declaratory relief for invalidity is
that it must have been brought before a
breach or violation. Conversion into a civil
action applies only if the breach occurs after
the filing of the action but before the
termination thereof.
 Matalin Coconut v. Municipality of
Malabang, 143 SCRA 404 (1986)
Where a tax imposed by the questioned
ordinance was paid under protest, there is no
breach, and hence declaratory relief still lies. In
any case, declaratory relief is proper as to
future taxes that may be imposed.
Note: Could not the plaintiffs in Santos and
Gomez claim that their action for declaratory
relief is proper for future taxes to be imposed
or future stamps to be required?
3. Review of Judgments and Final
Orders or Resolutions of the
Commission on Elections and the
Commission on Audit (Rule 64)
Section 1. Scope. — This Rule shall govern
the review of judgments and final orders or
resolutions of the Commission on Elections and
the Commission on Audit. (n)
Note that despite Sec. 7, Art. IX-A of the
1987 Constitution,
Section 7. xxx Unless otherwise provided
by this Constitution or by law, any
decision, order, or ruling of each
Commission may be brought to the
Supreme Court on certiorari by the
aggrieved party within thirty days from
receipt of a copy thereof.
appeals from decisions of the Civil Service
Commission are now brought to the CA by law
(RA 7902 which took effect on February
1995) via petition for review under Rule 43.
Sec. 2. Mode of review. — A judgment or
final order or resolution of the Commission on
Elections and the Commission on Audit may be
brought by the aggrieved party to the Supreme
Court on certiorari under Rule 65, except as
hereinafter provided. (n)
Sec. 3. Time to file petition. — The petition
shall be filed within thirty (30) days from
notice of the judgment or final order or
resolution sought to be reviewed. The filing of
a motion for new trial or reconsideration of
said judgment or final order or resolution, if
allowed under the procedural rules of the
Commission concerned, shall interrupt the
period herein fixed. If the motion is denied, the
aggrieved party may file the petition within the
remaining period, but which shall not be less
than five (5) days in any event, reckoned from
notice of denial. (n)
Note that petition for review from decisions of
quasi-judicial agencies to the CA should be
within 15 days and does not stay the decision
appealed.
Petition for review from decisions of the RTC
decided in its appellate jurisdiction filed to the
CA should be filed within 15 days and stays
execution, unless the case is under the rules of
Summary Procedure.
Special civil actions of certiorari, prohibition,
and mandamus, from Comelec and CoA should
be filed within 30 days, and does not stay the
decision appealed.
Bottomline: Decisions of quasi-judicial bodies
are not stayed by appeal alone. Decisions of
regular courts are stayed on appeal (de Leon:
Though in petition for review on certiorari to
the SC via Rule 45, there is no express
provision on effect of appeal on execution).
Note: The “not less than 5 days” provision for
filing a pleading applies only to
3. filing an answer after a denial of a MtD
4. filing an answer after denial or service of a
bill of particulars
5. filing an special civil action for certiorari
from a decision of the Comelec or CoA
after denial of a MfR or MNT
It does not apply to filing appeal from decisions
of other entities after denial of a MfR or MNT.
In such cases, either the parties have a fresh
15 days, or the balance.
Sec. 4. Docket and other lawful fees. —
Upon the filing of the petition, the petitioner
shall pay to the clerk of court the docket and
other lawful fees and deposit the amount of
P500.00 for costs. (n)
Sec. 5. Form and contents of petition. —
The petition shall be verified and filed in
eighteen (18) legible copies. The petition shall
name the aggrieved party as petitioner and
shall join as respondents the Commission
concerned and the person or persons
interested in sustaining the judgment, final
order or resolution a quo. The petition shall
state the facts with certainty, present clearly
the issues involved, set forth the grounds and
brief arguments relied upon for review, and
pray for judgment annulling or modifying the
questioned judgment, final order or resolution.
Findings of fact of the Commission supported
by substantial evidence shall be final and non-
reviewable.
The petition shall be accompanied by a
clearly legible duplicate original or certified true
copy of the judgment, final order or resolution
subject thereof, together with certified true
copies of such material portions of the record
as are referred to therein and other documents
relevant and pertinent thereto. The requisite
number of copies of the petition shall contain
plain copies of all documents attached to the
original copy of said petition.
The petition shall state the specific material
dates showing that it was filed within the
period fixed herein, and shall contain a sworn
certification against forum shopping as provided
in the third paragraph of section 3, Rule 46.
The petition shall further be accompanied
by proof of service of a copy thereof on the
Commission concerned and on the adverse
party, and of the timely payment of docket
and other lawful fees.
The failure of petitioner to comply with any
of the foregoing requirements shall be
sufficient ground for the dismissal of the
petition. (n)
Going to the SC, always 18 copies. Going to
the CA, always 7 copies.
The petitioner must also file a certification
against forum-shopping.
Sec. 6. Order to comment. — If the
Supreme Court finds the petition sufficient in
form and substance, it shall order the
respondents to file their comments on the
petition within ten (10) days from notice
thereof; otherwise, the Court may dismiss the
petition outright. The Court may also dismiss
the petition if it was filed manifestly for delay,
or the questions raised are too unsubstantial to
warrant further proceedings. (n)
Sec. 7. Comments of respondents. — The
comments of the respondents shall be filed in
eighteen (18) legible copies. The original shall
be accompanied by certified true copies of
such material portions of the record as are
referred to therein together with other
supporting papers. The requisite number of
copies of the comments shall contain plain
copies of all documents attached to the
original and a copy thereof shall be served on
the petitioner.
No other pleading may be filed by any party
unless required or allowed by the Court. (n)
Sec. 8. Effect of filing. — The filing of a
petition for certiorari shall not stay the
execution of the judgment or final order or
resolution sought to be reviewed, unless the
Supreme Court shall direct otherwise upon such
terms as it may deem just. (n)
Sec. 9. Submission for decision. — Unless
the Court sets the case for oral argument, or
requires the parties to submit memoranda, the
case shall be deemed submitted for decision
upon the filing of the comments on the
petition, or of such other pleadings or papers
as may be required or allowed, or the
expiration of the period to do so. (n)
4. Certiorari, Prohibition and Mandamus
a. Definitions
without jurisdiction – no jurisdiction from the
beginning; absolute want of jurisdiction
in excess of jurisdiction – transcended the
limits of authority without any statutory
authority
grave abuse of discretion – exercised its power
in an arbitrary or despotic manner by reason of
passion or personal hostilities; so patent and
gross as to amount to an evasion or virtual
refusal to perform the duty enjoined or to act
in contemplation of law
b. Purposes of a writ of
Certiorari – to correct errors of jurisdiction;
refers to only to judicial or quasi-judicial
functions
Prohibition – to prevent respondent from
usurping a jurisdiction which it is not legally
vested; refers to judicial, quasi-judicial, or
ministerial functions
Mandamus – to require or compel the
respondent to perform a particular duty, which
duty results from the official station of the
respondent, or from operation of law; refers
only to ministerial duties
Quo Warranto - a demand made by the state
upon some individual or corporation to show by
what right they exercise some franchise or
privilege appertaining to the State which
according to the Constitution or the laws of
the land, they can not legally exercise by virtue
of a grant or authority from the State
c. Distinguish
 Certiorari vs. Prohibition vs. Prohibition Mandamus
Mandamus
To prevent an act by To compel an act
Certiorari Prohibition Mandamus a respondent desired
Directed May be directed
Directed against a against entities May be directed
Directed
against a person exercising judicial or against judicial and
against a
person exercising quasi-judicial, or non-judicial entities
person
exercising to judicial or ministerial functions
exercising
judicial or quasi-judicial
ministerial Extends to
quasi-judicial functions, or Extends only to
duties discretionary
functions ministerial ministerial functions
functions
functions
Object is to Object is to Object is to Mandamus vs Quo Warranto
correct prevent compel
Mandamus Quo warranto
Purpose is to
compel Clarifies who has
Purpose is to Clarifies legal duties,
Purpose is to performance legal title to the
annul or not legal titles
stop the of the act office, or franchise
modify the
proceedings required and Respondent, without
proceedings
to collect claiming any right to Respondent usurps
damages the office, excludes the office
Person or Person or Person must the petitioner
entity must entity must have Certiorari Rule45 vs. Certiorari
have acted have acted neglected a Rule65
without or in without or in ministerial
excess of excess of duty or
jurisdiction, jurisdiction, excluded
or with grave or with grave another from
abuse of abuse of a right or
discretion discretion office

Prohibition vs. Injunction

Prohibition Injunction
May be the main
Always the main
action or just a
action
provisional remedy
Directed against a
court, a tribunal
Directed against a
exercising judicial or
party
quasi-judicial
functions
Ground must be the
Does not involve a
court acted without
question of
or in excess of
jurisdiction
jurisdiction

Prohibition vs. Mandamus

Certiorari as a Mode Certiorari as a original jurisdiction is
of Appeal (Rule 45) Special Civil Action invoked; SC exercises
(Rule 65) appellate jurisdiction its power of control
is invoked (power to and supervision over
question of whether review) proceedings of the
the lower court acted lower court (power of
only questions of law without or in excess control)
may be raised of jurisdiction or with
grave abuse of Note: Extension of 15
Note: Exension of 30
discretion days may be granted
days may be granted
for compelling
involves review of may be directed for justifiable reasons
reasons
judgments, awards, against an
or final orders interlocutory order of Note: May be filed in
Note: Filed only with
(exception: may be the court or where no all courts of general
the SC
directed against an appeal or plain or jurisdiction
interlocutory order speedy remedy
Note: SC may deny
when such order is available in the
the decision motu
patently illegal. Pp v ordinary course of
propio
Ramos 83 SCRA 1) law
filed within 15 days
from notice of the Certiorari, Prohibition and Mandamus
judgment or final
order or resolution d. Rule 65
filed within 60 days
appealed from, or of Section 1. Petition for certiorari. — When
from notice of the
the denial of the any tribunal, board or officer exercising judicial
judgment, order or
petitioner’s MNT or or quasi-judicial functions has acted without or
resolution
MfR; the SC may for in excess of its or his jurisdiction, or with grave
justifiable reasons
grant an extension of
abuse of discretion amounting to lack or excess
30 days of jurisdiction, and there is no appeal, or any
plain, speedy, and adequate remedy in the
Execution is not ordinary course of law, a person aggrieved
stays execution of the
stayed unless a TRO thereby may file a verified petition in the
judgment, award or
or a writ of PI has proper court, alleging the facts with certainty
order appealed from
been issued and praying that judgment be rendered
lower courts or the lower court or annulling or modifying the proceedings of such
judges thereof are judge is impleaded as tribunal, board or officer, and granting such
not impleaded a public respondent incidental reliefs as law and justice may require.
MfR is a condition The petition shall be accompanied by a
precedent, subject to certified true copy of the judgment, order or
exceptions to wit: resolution subject thereof, copies of all
1. c a s e i n v o l v e s pleadings and documents relevant and pertinent
matters of thereto, and a sworn certification of non-forum
extreme urgency; shopping as provided in the third paragraph of
2. order or judgment section 3, Rule 46. (1a)
complained of is a
Prior MfR not required Memorize!
patent nullity;
3. when the question Note that certiorari is directed only against an
has been properly entity exercising judicial or quasi-judicial
raised, argued and functions. The result is proceedings are
submitted to annulled or modified.
respondent court
and passed upon Sec. 2. Petition for prohibition. — When the
by it. proceedings of any tribunal, corporation, board,
applicable to regular applicable to regular
officer or person, whether exercising judicial,
courts (CA, RTC, courts, tribunals, and quasi-judicial or ministerial functions, are
Sandiganbayan) quasi-judicial bodies. without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no
appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law,
a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts
with certainty and praying that judgment be
rendered commanding the respondent to desist
from further proceedings in the action or
matter specified therein, or otherwise granting
such incidental reliefs as law and justice may
require.
The petition shall likewise be accompanied
by a certified true copy of the judgment, order
or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum
shopping as provided in the third paragraph of
section 3, Rule 46. (2a)
Memorize!
Note that prohibition is directed against
anybody. The result is the respondent is
ordered to desist from further proceedings.
Sec. 3. Petition for mandamus. — When
any tribunal, corporation, board, officer or
person unlawfully neglects the performance of
an act which the law specifically enjoins as a
duty resulting from an office, trust, or station,
or unlawfully excludes another from the use
and enjoyment of a right or office to which
such other is entitled, and there is no other
plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved
thereby may file a verified petition in the
proper court, alleging the facts with certainty
and praying that judgment be rendered
commanding the respondent, immediately or at
some other time to be specified by the court,
to do the act required to be done to protect
the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason
of the wrongful acts of the respondent.
The petition shall also contain a sworn
certification of non-forum shopping as provided
in the third paragraph of section 3, Rule 46.
(3a)
Memorize!
Note that mandamus is directed against
entities exercising only ministerial functions.
The result is the respondent is ordered to
desist from further proceedings.
Sec 4. When and where petition filed. - The
petition shall be filed not later than sixty (60)
days from notice of the judgment, order or
resolution. In case a motion for reconsideration
or new trial is timely filed, whether such
motion is required or not, the sixty (60) day
period shall be counted from notice of the
denial of the said motion.
The petition shall be filed in the Supreme
Court or, if it relates to the acts or omissions
of a lower court or of a corporation, board,
officer or person, in the Regional Trial Court
exercising jurisdiction over the territorial area
as defined by the Supreme Court. It may also
be filed in the Court of Appeals whether or not
the same is in the aid of its appellate
jurisdiction, or in the Sandiganbayan if it is in
aid of its appellate jurisdiction. If it involves the
acts or omissions of a quasi-judicial agency,
unless otherwise provided by law or these
rules, the petition shall be filed in and
cognizable only by the Court of Appeals.
No extension of time to file the petition
shall be granted except for compelling reason
and in no case exceeding fifteen (15) days.
(4a)
Like petitions for review to the CA and petition
for review on certiorari to the SC, the period
to file a special civil action for certiorari is
counted from notice of the judgment or denial
of a MNT or MfR, unlike in ordinary appeals
where an MfR or MNT only tolls the period and
the appellant has only remainder of the original
15 day period to appeal.
Sec. 5. Respondents and costs in certain
cases. — When the petition filed relates to the
acts or omissions of a judge, court, quasi-
judicial agency, tribunal, corporation, board,
officer or person, the petitioner shall join, as
private respondent or respondents with such
public respondent or respondents, the person
or persons interested in sustaining the
proceedings in the court; and it shall be the
duty of such private respondents to appear
and defend, both in his or their own behalf and
in behalf of the public respondent or
respondents affected by the proceedings, and
the costs awarded in such proceedings in favor
of the petitioner shall be against the private
respondents only, and not against the judge,
court, quasi-judicial agency, tribunal,
corporation, board, officer or person impleaded
as public respondent or respondents.
Unless otherwise specifically directed by the
court where the petition is pending, the public
respondents shall not appear in or file an
answer or comment to the petition or any
pleading therein. If the case is elevated to a
higher court by either party, the public
respondents shall be included therein as
nominal parties. However, unless otherwise
specifically directed by the court, they shall not
appear or participate in the proceedings
therein. (5a)
Sec. 6. Order to comment. — If the
petition is sufficient in form and substance to
justify such process, the court shall issue an
order requiring the respondent or respondents
to comment on the petition within ten (10)
days from receipt of a copy thereof. Such
order shall be served on the respondents in
such manner as the court may direct, together
with a copy of the petition and any annexes
thereto.
In petitions for certiorari before the
Supreme Court and the Court of Appeals, the
provisions of section 2, Rule 56, shall be
observed. Before giving due course thereto, the
court may require the respondents to file their
comment to, and not a motion to dismiss, the
petition. Thereafter, the court may require the
filing of a reply and such other responsive or
other pleadings as it may deem necessary and
proper. (6a)
Sec. 7. Expediting proceedings; injunctive
relief. — The court in which the petition is
filed may issue orders expediting the
proceedings, and it may also grant a temporary
restraining order or a writ of preliminary
injunction for the preservation of the rights of
the parties pending such proceedings. The
petition shall not interrupt the course of the
principal case unless a temporary restraining
order or a writ of preliminary injunction has
been issued against the public respondent from
further proceeding in the case. (7a)
A special civil action for certiorari, prohibition,
and mandamus does not stay execution, unless
a TRO or PI is issued.
Sec. 8. Proceedings after comment is filed.
— After the comment or other pleadings
required by the court are filed, or the time for
the filing thereof has expired, the court may
hear the case or require the parties to submit
memoranda. If after such hearing or submission
of memoranda or the expiration of the period
for the filing thereof the court finds that the
allegations of the petition are true, it shall
render judgment for the relief prayed for or to
which the petitioner is entitled.
The court, however, may dismiss the
petition if it finds the same to be patently
without merit, prosecuted manifestly for delay,
or that the questions raised therein are too
unsubstantial to require consideration. (8a)
Grounds for the court to motu proprio dismiss
the special civil action for CPM
1. patently without merit
2. prosecuted manifestly for delay, or
3. the questions raised therein are too
unsubstantial to require consideration.
Sec. 9. Service and enforcement of order or
judgment. — A certified copy of the judgment
rendered in accordance with the last preceding
section shall be served upon the court, quasi-
judicial agency, tribunal, corporation, board,
officer or person concerned in such manner as
the court may direct, and disobedience thereto
shall be punished as contempt. An execution
may issue for any damages or costs awarded in
accordance with section 1 of Rule 39. (9a)
e. Cases
Fortich v. Corona, 289 SCRA 629
(Apr 1998)
An error of judgment is one which the court
may commit in the exercise of its jurisdiction,
and which error is reviewable only by an
appeal. Error of jurisdiction is one where the
act complained of was issued by the court,
officer or a quasi-judicial body without or in
excess of jurisdiction, or with grave abuse of
discretion which is tantamount to lack or in
excess of jurisdiction. This error is correctable
only by the extraordinary writ of certiorari.
Dela Cruz v. IAC, 134 SCRA 417
(1985)
The remedy from a dismissal of a case is
appeal. Special Civil Action of Certiorari is
precluded where the remedy of appeal was
available but has been lost. Special Civil Action
of Certiorari can not take the place of a lost
appeal.
Dauz v. Eleosida, 1 SCRA 990
(1961)
Facts: Dauz was charged for non-payment of
municipal license fees for the 2nd, 3rd, and 4th
quarters of 1958. Dauz moved to quash on the
ground that the facts did not constitute an
offense because he had paid municipal license
fees for the 1st quarter and therefore the
remedy of the government was to collect by
civil action. Denied by the justice of the peace.
Dauz files a petition for certorari with the CFI.
Again denied.
Held: The act complained of was clearly in
violation of an ordinance which provides for a
penalty therefore. Whether or not he paid for
the 1st quarter constitutes a defense which he
may prove during the trial. If such defense
fails, appeal is available. Where appeal is
available, certiorari and prohibition do not lie.
People v. Ramos, 83 SCRA 1
(1978)
Where an information or complaint been
allowed despite a patent defect (e.g.
prescription), appeal is not an adequate
remedy. However, mandamus is not a proper
remedy to quash an information because the
latter is not a ministerial function. The proper
remedies are certiorari and prohibition.
Bautista v. Sarmiento, 128 SCRA
587 (1985)
Special civil action for certiorari is not the
proper remedy from a denial of a demurrer to
evidence. Denial of a demurrer to evidence is
merely an interlocutory order which can not be
the subject of a petition for certiorari. The
remedy is to continue with the trial of the case
and had the decision been adverse, to raise the
issue on appeal.
Note: What happened to the principle that
“interlocutory orders are not appealable, but
may be subject to certiorari?” Special civil
action for certiorari is precisely the only
remedy from interlocutory orders. I think what
the SC was trying to say was interlocutory
orders are not appealable, and the only remedy
is a special civil action for certiorari. But this
remedy is available only as an exception rather
than the rule.
Vda. de Bacang v. CA, 125 SCRA
137 (1983)
Facts: Petitioners filed action to recover their
hereditary shares in land that was awarded 43
years ago in a cadastral case. Respondents
moved to dismiss on res judicata and
prescription. Denied.
Held: Petitioners' action is clearly barred by
valid prior judgments and prescription. Private
respondents' Torrens titles over the hacienda
have long become indefeasible. Since the
grounds for dismissal are indubitable, the
defendants had the right to resort to the more
speedy and adequate remedies of certiorari and
prohibition to correct a grave abuse of
discretion, amounting to lack of jurisdiction,
committed by the trial court in not dismissing
the case. Where the lower court refuses to
dismiss the on a ground shown to be
indubitable (e.g. res judicata and prescription),
certiorari and prohibition is allowed.
Note: In these cases, the SC could have
decided either way.
FAMADOR: a Torrens Title may be attacked by
questioning the validity of the Order granting
such title. The right to question a void act
does not prescribe.
Santiago v. CA, 184 SCRA 590
(1990)
Facts: Judge disapproves agreement of parties
as to just compensation in an expropriation
proceedings. On special civil action for certiorari
to the CA, CA reverses. Contending that since
he was impleaded in the certiorari case before
the CA, he now files a petition for review on
certiorari before the SC.
Held: Only a party is allowed to appeal to the
SC by petition for review on certiorari. The
judge who rendered the questioned decision is
not a party. The fact that he was named a
party respondent before the SC does not give
him capacity to appeal. His being named a
respondent is only for the purpose of
questioning the jurisdiction of the court itself.
The judge is merely a nominal party. Respect
for judicial hierarchy bars a judge from suing
against an adverse opinion of an appellate
court.
Calderon v. Solicitor-General, 215
SCRA 876 (1992)
Facts: Judge increases bail to an amount
beyond that prescribed. On special civil action
for certiorari, CA annuls judge’s order. Judge
files MfR in which the Solicitor General refuses
to represent him. Judge goes to SC on special
civil action for certiorari and mandamus to
compel the Solicitor General to represent him.
Held: A judge can not seek a reversal of a
decision reversing his own decision. The judge
has no standing to file the certiorari
proceeding. He is merely a nominal party in
the certiorari proceeding before the CA.
Furthermore, the Solicitor General has discretion
to decide when and how to prosecute a case.
His duty is therefore discretionary, not
ministerial, and therefore can not be compelled
by mandamus.
Note: Note that in these last 2 decisions
(Santos and Calderon), the judges were
invoking the fact that they were impleaded
before the CA. It is only in special civil actions
for certiorari that the lower courts are
impleaded. In all modes of appeal (special civil Quo Warranto in Quo Warranto in
action is, strictly speaking, not an appeal), the Elective Offices Appointive Offices
lower court is not impleaded.
Issue is eligibility of Issue is the validity of
Municipality of Biñan, Laguna v. the respondent the appointment
CA, 219 SCRA 69 (1993)
Petitioner does not Petitioner seeks to
Facts: Municipality files an ejectment case seek r e p l a c e replace repondent
against a lessee of its property. MTC rules for respondent
municipality. Execution pending appeal was
granted. Lessee questions the execution Quo Warranto
pending appeal in a petition for certiorari a. Rule 66
before the CA. The CA not only annulled General procedure in quo warranto
execution pending appeal, but also reversed the
main decision. Section 1. Action by Government against
individuals. — An action for the usurpation of a
Held: The only issue in the certiorari public office, position or franchise may be
proceedings was the propriety of the execution commenced by a verified petition brought in
pending appeal. Even if the error in the main the name of the Republic of the Philippines
decision was raised in the certiorari against:
proceedings, such issue is improper because
the remedy of appeal is still available and was (a) A person who usurps, intrudes into, or
in fact availed of. unlawfully holds or exercises a public office,
position or franchise;
Carabot v. CA 145 SCRA 377
(b) A public officer who does or suffers an
5. Quo Warranto act which, by the provision of law, constitutes
Quo Warranto – a demand made by the State a ground for the forfeiture of his office; or
upon some individual or corporation to show by (c) An association which acts as a
what right they exercise some franchise or corporation within the Philippines without being
privilege appertaining to the State which legally incorporated or without lawful authority
according to the Constitution or the laws of so to act. (1a)
the land, they can not legally exercise by virtue
of a grant or authority from the State Grounds for quo warranto filed by the
government
Quo Warranto Mandamus 1. a person usurps, intrudes into, or unlawfully
Remedy to try an To clear legal duties, holds or exercises a public office, position
office or franchise not disputed titles or franchise;
and to oust the 2. a public officer who does or suffers an act
holder from
enjoyment
which, by the provision of law, constitutes a
ground for the forfeiture of his office; or
There is usurpation or Respondent need not 3. an association which acts as a corporation
intrusion into an claim right to an
office by the office but excludes
within the Philippines without being legally
respondent petitioner therefrom incorporated or without lawful authority so
to act.
Sec. 2. When Solicitor General or public
Quo Warranto Election Contest
prosecutor must commence action. — The
Solicitor General or a public prosecutor, when
Disputes relates to D i s p u t e r e f e r s t o directed by the President of the Philippines, or
the eligibility of the irregularities in the when upon complaint or otherwise he has good
candidate elect conduct of election reason to believe that any case specified in the
Respondent ousted Successful protestant preceding section can be established by proof,
but petitioner does will assume office if must commence such action. (3a)
not always assume he had plurality of Sec. 3. When Solicitor General or public
office valid votes prosecutor may commence action with
permission of court. — The Solicitor General or
a public prosecutor may, with the permission of
the court in which the action is to be
commenced, bring such an action at the
request and upon the relation of another
person; but in such case the officer bringing it
may first require an indemnity for the expenses
and costs of the action in an amount approved
by and to be deposited in the court by the
person at whose request and upon whose
relation the same is brought. (4a)
Sec. 4. When hearing had on application for
permission to commence action. — Upon
application for permission to commence such
action in accordance with the next preceding
section, the court shall direct that notice be
given to the respondent so that he may be
heard in opposition thereto; and if permission is
granted, the court shall issue an order to that
effect, copies of which shall be served on all
interested parties, and the petition shall then
be filed within the period ordered by the court.
(5a)
Requisites for Quo Warranto by Government
against individuals
1. verified petition
2. commenced by the Solicitor General or
public prosecutor, in the name of the
Republic of the Philippines after either
a. being directed by the President
b. upon complaint or otherwise, he has
good reason to believe the grounds can
be established by proof, or
c. with the permission of the court
1) at the request and upon the relation
of another person
2) after requiring an indemnity for the
expenses and costs of the action in
an amount approved by and to be
deposited in the court
3) court directs that notice be given to
the respondent
Sec. 5. When an individual may commence
such an action. — A person claiming to be
entitled to a public office or position usurped
or unlawfully held or exercised by another may
bring an action therefor in his own name. (6)
Only ground for quo warranto filed by an
individual – respondent is usurping, unlawfully
holding, or is exercising a public office or
position being claimed by the petitioner
Sec. 6. Parties and contents of petition
against usurpation. — When the action is
against a person for usurping a public office,
position or franchise, the petition shall set
forth the name of the person who claims to be
entitled thereto, if any, with an averment of his
right to the same and that the respondent is
unlawfully in possession thereof. All persons
who claim to be entitled to the public office,
position or franchise may be made parties, and
their respective rights to such public office,
position or franchise determined, in the same
action. (7a)
When the action is against a person for
usurping a public office, position or franchise,
the petition shall set forth
3. the name of the person who claims to be
entitled thereto, if any
4. averment
a. of petitioner’s right to the same and
b. that the respondent is unlawfully in
possession thereof
All persons who claim to be entitled to the
public office, position or franchise may be
made parties, and their respective rights to
such public office, position or franchise
determined, in the same action.
Sec. 7. Venue. — An action under the
preceding six sections can be brought only in
the Supreme Court, the Court of Appeals, or in
the Regional Trial Court exercising jurisdiction
over the territorial area where the respondent
or any of the respondents resides, but when
the Solicitor General commences the action, it
may be brought in a Regional Trial Court in the
City of Manila, in the Court of Appeals, or in
the Supreme Court. (8a)
Venue for quo warranto
1. SC, CA or RTC exercising jurisdiction over
the territorial area where the respondent or
any of the respondents resides, or
2. SC, CA or RTC of Manila – if commenced by
the Solicitor General
Sec. 8. Period for pleadings and proceedings
may be reduced; action given precedence. —
The court may reduce the period provided by
these Rules for filing pleadings and for all other
proceedings in the action in order to secure
the most expeditious determination of the
matters involved therein consistent with the
rights of the parties. Such action may be given
precedence over any other civil matter pending
in the court. (9a)
Sec. 9. Judgment where usurpation found.
— When the respondent is found guilty of
usurping, intruding into, or unlawfully holding or
exercising a public office, position or franchise,
judgment shall be rendered that such
respondent be ousted and altogether excluded
therefrom, and that the petitioner or relator, as
the case may be, recover his costs. Such
further judgment may be rendered determining
the respective rights in and to the public
office, position or franchise of all the parties to
the action as justice requires. (10a)
When the respondent is found guilty of
usurping, intruding into, or unlawfully holding or
exercising a public office, position or franchise,
judgment shall be rendered that
1. such respondent be ousted and altogether
excluded therefrom, and
2. the petitioner or relator, recover his costs
3. further judgment determining the respective
rights in and to the public office, position
or franchise of all the parties to the action
as justice requires.
Sec. 10. Rights of persons adjudged entitled
to public office; delivery of books and papers;
damages. — If judgment be rendered in favor
of the person averred in the complaint to be
entitled to the public office he may, after
taking the oath of office and executing any
official bond required by law, take upon himself
the execution of the office, and may
immediately thereafter demand of the
respondent all the books and papers in the
respondent’s custody or control appertaining to
the office to which the judgment relates. If the
respondent refuses or neglects to deliver any
book or paper pursuant to such demand, he
may be punished for contempt as having
disobeyed a lawful order of the court. The
person adjudged entitled to the office may also
bring action against the respondent to recover
the damages sustained by such person by
reason of the usurpation. (15a)
After taking the oath of office and executing
any required bond, rights of persons adjudged
entitled to public office
1. To take upon himself the execution of the
office
2. to demand of the respondent all the books
and papers in the respondent’s custody or
control appertaining to the office to which
the judgment relates, failure of which is
punishable by contempt
3. to bring action against the respondent to
recover the damages sustained by such
person by reason of the usurpation.
Sec. 11. Limitations. — Nothing contained
in this Rule shall be construed to authorize an
action against a public officer or employee for
his ouster from office unless the same be
commenced within one (1) year after the
cause of such ouster, or the right of the
petitioner to hold such office or position, arose;
nor to authorize an action for damages in
accordance with the provisions of the next
preceding section unless the same be
commenced within one (1) year after the entry
of the judgment establishing the petitioner’s
right to the office in question. (16a)
Prescription for quo warranto – 1 year after
1. cause of such ouster, or
2. the right of the petitioner to hold such
office or position arose
Prescription for an action for damages after
quo warranto – 1 year after the entry of the
judgment establishing the petitioner’s right to
the office in question
Sec. 12. Judgment for costs. — In an
action brought in accordance with the
provisions of this Rule, the court may render
judgment for costs against either the
petitioner, the relator, or the respondent, or
the person or persons claiming to be a
corporation, or may apportion the costs, as
justice requires. (17a)
b. Cases
Campos v. Degamo, 6 SCRA 235
(1962)
Facts: Councilors #1 Campos and #2 Oroc files
a quo warranto against the Mayor Degamo and
Vice-Mayor Palarca on the ground that there
was no valid canvass for the offices of Mayor
and Vice Mayor effected and the respondents
could not legally occupy the said positions
because the Board of Canvassers used in their
canvass for election the election return coming
from the Provincial Treasurer's Office, inspite of
the fact that the copy of the election return in
the hands of the municipal treasurer was
available. They prayed that Degamo and Palarca
be excluded from their offices and that Campos
and Oroc be declared entitled thereto.
Held: Where the quo warranto complaint
involves an elective office, it must be shown
that the plaintiff was duly elected thereto.
Campos being candidates for councilors and not
for mayor and vice-mayor, could not have been
elected to the offices in question, and
therefore are not proper parties to the quo
warranto case. Moreover, there being a pending
case for quo warranto filed by other candidates
for mayor and vice-mayor, the filing of the
case at bar was premature and the cause of
action had not as yet accrued.
Sison v. Pangramuyen, 84 SCRA
364 (1978)
Facts: Sison files a petition for quo warranto
questioning the appointment of Maliwanag by
the CSC as assistant city assessor on
November 1973. He claims that he should be
the one appointed as per the next-in rank-rule.
The petition was filed on March 1975, more
than a year after the appointment of
Maliwanag.
Held: The action has prescribed because quo
warranto prescribes after 1 year from the time
the cause of action accrues (i.e. questioned
appointment). Resort to administrative remedy
does not abate the period for judicial action.
Municipality of San Narciso v.
Mendez, 239 SCRA 11 (1994)
Facts: President Garcia created the Municipality
of San Andres by an EO in 1959. In 1965, the
case of Pelaez v. Auditor-General was
promulgated declaring the creation of LGUs to
be a legislative, not an executive function.
Municipality of San Narciso files a petition for
quo warranto against the LG officials of San
Andres in 1989.
Held: The quo warranto is focused on the legal
existence of a body politic; the action is
reserved to the State. It must be brought "in
the name of the Republic of the Philippines"
and commenced by the Solicitor General or the
fiscal "when directed by the President of the
Philippines." Such officers may, under certain
circumstances, bring such an action "at the
request and upon the relation of another
person" with the permission of the court. When
an individual seeks to commence an action for
quo warranto in his own name, this can only be
done if he claims to be "entitled to a public
office or position usurped or unlawfully held or
exercised by another." While the quo warranto
proceedings filed below by petitioner
municipality has so named only the officials of
the Municipality of San Andres as respondents,
it is virtually, however, a denunciation of the
authority of the Municipality or Municipal
District of San Andres to exist and to act in
that capacity. Besides, the cause of action has
prescribed because it was filed nearly 30 years
after the cause of action accrued, way beyond
the 1 year provided by the RoC.
Note: Sec. 1 includes usurpation of franchise as
among the ground for quo warranto being filed
by the government. In the Municipality of San
Narciso case, the court interpreted “franchise”
loosely.
6. Expropriation
Eminent domain/expropriation – power of the
sovereign state to take or authorize the taking
of any property within jurisdiction for the public
use and without the owner’s consent
Expropriation Police Power
Purpose of the taking Purpose of the taking
is for public use is to promote general
welfare
With just Without just
compensation compensation
a. Rule 67
General Procedure in Expropriation
1. verified complaint
2. plaintiff may immediately enter upon
deposit, with a government depositary bank,
of the assessed value of the property
3. defendant files either
a. notice of appearance and manifestation,
or
b. answer
4. order of expropriation, may be appealed
which does not suspend proceedings
5. court appoints 3 commissioners
6. commissioners’ report filed within 60 days
from notification of appointment
7. parties have 10 days to file their objections
to the report
8. court accepts or rejects the commissioners’
report, or recommits to the commissioners,
or appoint another set of commissioners
9. plaintiff enters or retains possession upon
payment of just compensation
10.Entry not delayed by appeal; reversal
entitles defendant to recover possession
Section 1. The complaint. — The right of
eminent domain shall be exercised by the filing
of a verified complaint which shall state with
certainty the right and purpose of
expropriation, describe the real or personal
property sought to be expropriated, and join as
defendants all persons owning or claiming to
own, or occupying, any part thereof or interest
therein, showing, so far as practicable, the
separate interest of each defendant. If the title
to any property sought to be expropriated
appears to be in the Republic of the Philippines,
although occupied by private individuals, or if
the title is otherwise obscure or doubtful so
that the plaintiff cannot with accuracy or
certainty specify who are the real owners,
averment to that effect shall be made in the
complaint. (1a)
Contents of a complaint for expropriation
1. verified
2. state with certainty the right and purpose
of expropriation
3. describe the real or personal property
sought to be expropriated
4. join as defendants all persons owning or
claiming to own, or occupying, any part
thereof or interest therein, showing, so far
as practicable, the separate interest of each
defendant.
5. averment of the following if it so appears
a. title to the property is in the Republic of
the Philippines, although occupied by
private individuals, or
b. title is otherwise obscure or doubtful so
that the plaintiff cannot with accuracy
or certainty specify who are the real
owners
Sec. 2. Entry of plaintiff upon depositing
value with authorized government depositary.
— Upon the filing of the complaint or at any
time thereafter and after due notice to the
defendant, the plaintiff shall have the right to
take or enter upon the possession of the real
property involved if he deposits with the
authorized government depositary an amount
equivalent to the assessed value of the
property for purposes of taxation to be held by
such bank subject to the orders of the court.
Such deposit shall be in money, unless in lieu
thereof the court authorizes the deposit of a
certificate of deposit of a government bank of
the Republic of the Philippines payable on
demand to the authorized government
depositary.
If personal property is involved, its value
shall be provisionally ascertained and the
amount to be deposited shall be promptly fixed
by the court.
After such deposit is made the court shall
order the sheriff or other proper officer to
forthwith place the plaintiff in possession of
the property involved and promptly submit a
report thereof to the court with service of
copies to the parties. (2a)
Requisites for plaintiff to enter upon the
possession of the real property involved
1. upon filing of the complaint, or at any time
thereafter
2. with due notice to the defendant
3. deposits with the authorized government
depositary an amount equivalent to the
a. real property – assessed value of the
property for purposes of taxation
b. personal property – value provisionally
ascertained and the amount to be
deposited as fixed by the court (NOTE:
Concerning right of way, site or location
of national government infrastructure
projects: The required deposit is now
non-existent pursuant to RA8974)
4. Deposit must be
a. in money, or
b. if the court so authorizes, the deposit of
a certificate of deposit of a government
bank of the Republic of the Philippines
payable on demand to the authorized
government depositary.
5. court ordering the sheriff or other proper
officer to
a. place the plaintiff in possession of the
property involved and
b. submit a report thereof to the court
with service of copies to the parties
Sec. 3. Defenses and objections. — If a
defendant has no objection or defense to the
action or the taking of his property, he may
file and serve a notice of appearance and a
manifestation to that effect, specifically
designating or identifying the property in which
he claims to be interested, within the time
stated in the summons. Thereafter, he shall be
entitled to notice of all proceedings affecting
the same.
If a defendant has any objection to the
filing of or the allegations in the complaint, or
any objection or defense to the taking of his
property, he shall serve his answer within the
time stated in the summons. The answer shall
specifically designate or identify the property in
which he claims to have an interest, state the
nature and extent of the interest claimed, and
adduce all his objections and defenses to the
taking of his property. No counterclaim, cross-
claim or third-party complaint shall be alleged
or allowed in the answer or any subsequent
pleading.
A defendant waives all defenses and
objections not so alleged but the court, in the
interest of justice, may permit amendments to
the answer to be made not later than ten (10)
days from the filing thereof. However, at the
trial of the issue of just compensation, whether
or not a defendant has previously appeared or
answered, he may present evidence as to the
amount of the compensation to be paid for his
property, and he may share in the distribution
of the award. (n)
If a defendant has:
1. no objection or defense to the action
or the taking of his property – he
may file and serve
a. a notice of appearance
b. a manifestation to that effect
c. specifically designating or identifying the
property in which he claims to be
interested
d. within the time stated in the summons
e. thereafter, he shall be entitled to notice
of all proceedings affecting the same.
2. any objection to the filing of or the
allegations in the complaint, or any
objection or defense to the taking of
his property – he shall
a. serve his answer within the time stated
in the summons
b. answer shall specifically designate or
identify the property in which he claims
to have an interest
c. state the nature and extent of the
interest claimed
d. adduce all his objections and defenses
to the taking of his property
e. No counterclaim, cross-claim or third-
party complaint shall be alleged or
allowed in the answer or any subsequent
pleading.
f. A defendant waives all defenses and
objections not so alleged
g. the court, in the interest of justice, may
permit amendments to the answer to be
made not later than 10 days from the
filing
However, at the trial of the issue of just
compensation, whether or not a defendant has
previously appeared or answered, he may
present evidence as to the amount of the
compensation to be paid for his property, and
he may share in the distribution of the award.
Sec. 4. Order of expropriation. — If the
objections to and the defenses against the
right of the plaintiff to expropriate the
property are overruled, or when no party
appears to defend as required by this Rule, the
court may issue an order of expropriation
declaring that the plaintiff has a lawful right to
take the property sought to be expropriated,
for the public use or purpose described in the
complaint, upon the payment of just
compensation to be determined as of the date
of the taking of the property or the filing of
the complaint, whichever came first.
A final order sustaining the right to
expropriate the property may be appealed by
any party aggrieved thereby. Such appeal,
however, shall not prevent the court from
determining the just compensation to be paid.
After the rendition of such an order, the
plaintiff shall not be permitted to dismiss or
discontinue the proceeding except on such
terms as the court deems just and equitable.
(4a)
If the objections to and the defenses against
the right of the plaintiff to expropriate the
property are overruled, or when no party
appears to defend as required by this Rule, the
court may issue an order of expropriation
1. declaring that the plaintiff has a lawful right
to take the property sought to be
expropriated
2. for the public use or purpose described in
the complaint
3. upon the payment of just compensation to
be determined as of the date of the taking
of the property or the filing of the
complaint, whichever came first.
A final order sustaining the right to expropriate
the property may be appealed by any party
aggrieved thereby. Such appeal, however, shall
not prevent the court from determining the
just compensation to be paid.
After the rendition of such an order, the
plaintiff shall not be permitted to dismiss or
discontinue the proceeding except on such
terms as the court deems just and equitable.
Sec. 5. Ascertainment of compensation. —
Upon the rendition of the order of
expropriation, the court shall appoint not more
than three (3) competent and disinterested
persons as commissioners to ascertain and
report to the court the just compensation for
the property sought to be taken. The order of
appointment shall designate the time and place
of the first session of the hearing to be held
by the commissioners and specify the time
within which their report shall be submitted to
the court.
Copies of the order shall be served on the
parties. Objections to the appointment of any
of the commissioners shall be filed with the
court within ten (10) days from service, and
shall be resolved within thirty (30) days after
all the commissioners shall have received copies
of the objections. (5a)
Commissioners are appointed only if the parties
can not agree as to the just compensation for
the property
Upon the rendition of the order of
expropriation -
1. the court shall appoint not more than 3
competent and disinterested persons as
commissioners to ascertain and report to
the court the just compensation for the
property sought to be taken.
2. The order of appointment shall designate
the time and place of the first session of
the hearing to be held by the
commissioners and specify the time within
which their report shall be submitted to the
court.
3. Copies of the order shall be served on the
parties.
4. Objections to the appointment of any of
the commissioners shall be filed with the
court within 10 days from service, and shall
be resolved within 30 days after all the
commissioners shall have received copies of
the objections.
Sec. 6. Proceedings by commissioners. —
Before entering upon the performance of their
duties, the commissioners shall take and
subscribe an oath that they will faithfully
perform their duties as commissioners, which
oath shall be filed in court with the other
proceedings in the case. Evidence may be
introduced by either party before the
commissioners who are authorized to
administer oaths on hearings before them, and
the commissioners shall, unless the parties
consent to the contrary, after due notice to
the parties to attend, view and examine the
property sought to be expropriated and its
surroundings, and may measure the same, after
which either party may, by himself or counsel,
argue the case. The commissioners shall assess
the consequential damages to the property not
taken and deduct from such consequential
damages the consequential benefits to be
derived by the owner from the public use or
purpose of the property taken, the operation
of its franchise by the corporation or the
carrying on of the business of the corporation
or person taking the property. But in no case
shall the consequential benefits assessed
exceed the consequential damages assessed, or
the owner be deprived of the actual value of
his property so taken. (6a)
Before entering upon the performance of their
duties
1. the commissioners shall take and subscribe
an oath that they will faithfully perform
their duties as commissioners
2. such oath shall be filed in court with the
other proceedings in the case.
Evidence may be introduced by either party
before the commissioners who are authorized
to administer oaths on hearings before them,
and the commissioners shall, unless the parties
consent to the contrary, after due notice to
the parties to attend, view and examine the
property sought to be expropriated and its
surroundings, and may measure the same, after
which either party may, by himself or counsel,
argue the case.
The commissioners shall assess the
consequential damages to the property not
taken and deduct from such consequential
damages the consequential benefits to be
derived by the owner from the public use or
purpose of the property taken, the operation
of its franchise by the corporation or the
carrying on of the business of the corporation
or person taking the property. But in no case
shall the consequential benefits assessed
exceed the consequential damages assessed, or
the owner be deprived of the actual value of
his property so taken.
Sec. 7. Report by commissioners and
judgment thereupon. — The court may order
the commissioners to report when any
particular portion of the real estate shall have
been passed upon by them, and may render
judgment upon such partial report, and direct
the commissioners to proceed with their work
as to subsequent portions of the property
sought to be expropriated, and may from time
to time so deal with such property. The
commissioners shall make a full and accurate
report to the court of all their proceedings, and
such proceedings shall not be effectual until
the court shall have accepted their report and
rendered judgment in accordance with their
recommendations. Except as otherwise
expressly ordered by the court, such report
shall be filed within sixty (60) days from the
date the commissioners were notified of their
appointment, which time may be extended in
the discretion of the court. Upon the filing of
such report, the clerk of the court shall serve
copies thereof on all interested parties, with
notice that they are allowed ten (10) days
within which to file objections to the findings
of the report, if they so desire. (7a)
Sec. 8. Action upon commissioners’ report.
— Upon the expiration of the period of ten
(10) days referred to in the preceding section,
or even before the expiration of such period
but after all the interested parties have filed
their objections to the report or their
statement of agreement therewith, the court
may, after hearing, accept the report and
render judgment in accordance therewith; or,
for cause shown, it may recommit the same to
the commissioners for further report of facts;
or it may set aside the report and appoint new
commissioners; or it may accept the report in
part and reject it in part; and it may make
such order or render such judgment as shall
secure to the plaintiff the property essential to
the exercise of his right of expropriation, and
to the defendant just compensation for the
property so taken. (8a)
Sec. 9. Uncertain ownership; conflicting
claims. — If the ownership of the property
taken is uncertain, or there are conflicting
claims to any part thereof, the court may order
any sum or sums awarded as compensation for
the property to be paid to the court for the
benefit of the person adjudged in the same
proceeding to be entitled thereto. But the
judgment shall require the payment of the sum
or sums awarded to either the defendant or
the court before the plaintiff can enter upon
the property, or retain it for the public use or
purpose if entry has already been made. (9a)
Sec. 10. Rights of plaintiff after judgment
and payment. — Upon payment by the plaintiff
to the defendant of the compensation fixed by
the judgment, with legal interest thereon from
the taking of the possession of the property,
or after tender to him of the amount so fixed
and payment of the costs, the plaintiff shall
have the right to enter upon the property
expropriated and to appropriate it for the
public use or purpose defined in the judgment,
or to retain it should he have taken immediate
possession thereof under the provisions of
section 2 hereof. If the defendant and his
counsel absent themselves from the court, or
decline to receive the amount tendered, the
same shall be ordered to be deposited in court
and such deposit shall have the same effect as
actual payment thereof to the defendant or
the person ultimately adjudged entitled thereto.
(10a)
Sec. 11. Entry not delayed by appeal; effect
of reversal. — The right of the plaintiff to
enter upon the property of the defendant and
appropriate the same for public use or purpose
shall not be delayed by an appeal from the
judgment. But if the appellate court determines
that plaintiff has no right of expropriation,
judgment shall be rendered ordering the
Regional Trial Court to forthwith enforce the
restoration to the defendant of the possession
of the property, and to determine the damages
which the defendant sustained and may recover
by reason of the possession taken by the
plaintiff. (11a)
Note that entry may not be delayed by appeal.
The remedy, in case of reversal on appeal, is
to restore the defendant to possession plus
damages.
Sec. 12. Costs, by whom paid. — The fees
of the commissioners shall be taxed as a part
of the costs of the proceedings. All costs,
except those of rival claimants litigating their
claims, shall be paid by the plaintiff, unless an
appeal is taken by the owner of the property
and the judgment is affirmed, in which event
the costs of the appeal shall be paid by the
owner. (12a)
Sec. 13. Recording judgment, and its effect.
— The judgment entered in expropriation
proceedings shall state definitely, by an
adequate description, the particular property or
interest therein expropriated, and the nature of
the public use or purpose for which it is
expropriated. When real estate is expropriated,
a certified copy of such judgment shall be
recorded in the registry of deeds of the place
in which the property is situated, and its effect
shall be to vest in the plaintiff the title to the
real estate so described for such public use or
purpose. (13a)
Sec. 14. Power of guardian in such
proceedings. — The guardian or guardian ad
litem of a minor or of a person judicially
declared to be incompetent may, with the
approval of the court first had, do and perform
on behalf of his ward any act, matter, or thing
respecting the expropriation for public use or
purpose of property belonging to such minor or
person judicially declared to be incompetent,
which such minor or person judicially declared
to be incompetent could do in such
proceedings if he were of age or competent.
(14a)
b. Cases
City of Manila v. Arellano Law
Colleges, 85 Phil 663 (1950)
Facts: City of Manila seeks to expropriate land
of Arellano University for the purpose of
reselling it to the poor FOR SOCIALIZED
HOUSING. NECESSITY OF PUBLIC PURPOSE.
PRACTICAL NECESSITY OF THE USE. Arellano
unit opposed said that they need it to expand
the university.
Issue: whether there is a practical necessity for
the taking of the property?
Held:NO, there is no practical necessity for the
taking of the property.
In expropriation, necessity for taking does not
mean an absolute but only a reasonable or
practical necessity, such as would combine the
greatest benefit to the public with the least
inconvenience and expense to the condemning
party and property owner consistent with such
benefit.
In this case, necessity for the condemnation
has not been shown. The land in question has
cost the owner P140,000. The people for
whose benefit the condemnation is being
undertaken are so poor they could ill afford to
meet this high price, unless they intend to
borrow the money with a view to disposing of
the property later for a profit. Cheaper lands
not dedicated to a purpose so worthy as a
school and more suited to the occupants'
needs and means, if really they only want to
own their own homes, are aplenty elsewhere.
On the other hand, the defendant not only has
invested a considerable amount for its property
but had the plans for construction ready and
would have completed the project a long time
ago had it not been stopped by the city
authorities. While a handful of people stand to
profit by the expropriation, the development of
a university that has a present enrollment of
9,000 students would be sacrificed. Any good
that would accrue to the public from providing
homes to a few families fades into
insignificance in comparison with the
preparation of young men and young women
for useful citizenship and for service to the
government and the community, a task which
the government alone is not in a position to
undertake.
Note: This case is authority for saying that
public purpose alone is not enough to authorize
expropriation.
EPZA v. Dulay, 149 SCRA 305
(1987)
Facts:
The pres. Made a proclamation for the
expropriation of land for export processing
agency to develop. EPSA filed expire case but
they could not agree on JC. JUDGE DULAY
ordered appointed 3 commissioners, who would
survey and determine the value of the land.
EPZA said that 1533PD repealed rule 67 and
that it was not anymore necessary to appoint
commissioners because the assessed value of
the commissioner or court, whichever is lower.
1533 is unconstitutional, deprived the court
from determining JC.
Just compensation is the value of the property
at the time of the taking of the property, or
the fair and full equivalent of the loss
sustained. Determination of just compensation
is a judicial function. Executive and legislative
departments may make the initial
determination, but it can not be deemed final.
Statutes that seek to impose otherwise, or
seek to limit judicial “discretion” to
determining which is lower between the set
values is unconstitutional. PD1533 is
unconstitutional since the discretion in
determination of just compensation is provided
for in the said decree, as evidenced in the
phrase “whichever is lower”, thereby robbing Mortgagee has to file
the court of the exclusive discretion to a separate action to Mortagagee can move
determine just compensation. recover any for deficiency
deficiency judgment in the
same action
Any law that already determines the JC is
unconstitutional because the court would be Buyer at public
deprived of its discretion to determine JC auction becomes Buyer at public
Manila Electric Company v. Pineda, absolute owner only auction becomes
after finality of an absolute owner only
206 SCRA 196 (1992)
action for after confirmation of
consolidation of the sale
ownership
Appointment of 3 commissioners to ascertain
just compensation is a mandatory requirement Mortgagee is given a
in expropriation. Though its findings may be special power of
disregarded by the court, it may only do so for attorney in the Mortgagee need not
valid reason. Trial with the aid of mortgage contract to be given a special
commissioners is a substantial right that may foreclose the power of attorney
not be done away with capriciously. Moreover, mortgaged property
where the commissioner’s report is disregarded, in case of default
the court must make its own estimate of value Redemption period
from the competent evidence on record.
Recovery of deficiency
Finality of the sale - made within the province
in which the property is situated
7. Foreclosure of Real Estate Mortgage Express provision
Procedure - Notice and filing/
Extra-judicial Judicial foreclosure Notice of foreclosure sale; posted not less than
Foreclosure under 20 days before the actual sale in the place
act 3135 where prop is located. Newspaper of General
There must be circulation
express provision in Under the general banking act, if Bank CR/
the contract allowing MGEE, the redemption period , 3 months from
EJF so no need to sale
file complaint in
court FPR MORTGAGEE BANKS EVEN IF JUJDICIAL
FORECLOSURE, THERE IS STILL A REDEMPTION
Complaint is filed PERIOD, 3 MONTHS.
No complaint is filed with the courts
GO TO THE SHERIFF INITIATE BY
COMPLAINT WHAT COURT SHOULD YOU FILE THE JUDICIAL
FORECLOSURE. THIS WILL AFFECT THE TITLE
Equity of redemption OF THE PROPERTY. SO IT DEPENDS ON THE
only (to pay the
debt)(90 to 120 days,
VALEU OF THE PROPERTY NGA MARTC BA OR
Mortgagor has a right and any time before MTC.
of redemption for 1 confirmation of RTC HERE, DEEMD CAPABLE OF PECUNIARY
year from registration foreclosure sale), ESTIMATION
of the sale unless right of
redemption granted
by law (e.g. bank-
mortgagees)

NO REDEMPTION PEIROD IF MGEE IS NOT A

BANK. IF BANK, THEN NAA REDEMPTION.
BY MERE MOTION MOVE RA FOR DEFICIENCY( IF
JUDICIAL )
WHAT IF EXTRAJUDICIAL, WHAT REMEDY? KAY
DI MAN SILA KA MOTION KAY WA MAY CASE
FILE AN ACTION FOR REMEDY
a. Extrajudicial Foreclosure
(Act 3135)
REM is a subsidiary
contract to the contract
of LOAN.
Sec. 1. When a sale is
made under a special
power inserted in or
attached to any real-
estate mortgage
hereafter made as
security for the payment
of money or the
fulfillment of any other
obligation, the provisions
of the following election
shall govern as to the
manner in which the sale
and redemption shall be
effected, whether or not
provision for the same is
made in the power.
Note: The contract of mortgage should contain
a stipulation where the mortgagor gives the
mortgagee a special power of attorney to
foreclose the property in case of default.
Sec. 2. Said sale cannot be made legally
outside of the province in which the property
sold is situated; and in case the place within
said province in which the sale is to be made is
subject to stipulation, such sale shall be made
in said place or in the municipal building of the
municipality in which the property or part
thereof is situated.
Venue of extrajudicial foreclosure
1. in province in which the mortgaged property
is situated, and
2. in a place within the province
a. by stipulation
b. municipal building in which the property
is situated
Sec. 3. Notice shall be given by posting
notices of the sale for not less than twenty
days in at least three public places of the
municipality or city where the property is
situated, and if such property is worth more
than four hundred pesos, such notice shall also
be published once a week for at least three
consecutive weeks in a newspaper of general
circulation in the municipality or city.
Notice in extrajudicial foreclosure
1. posting for not less than 20 days in 3
public places of the municipality or city
where the property is situated
2. if property is worth more than P400,
published once a week for at least 3
consecutive weeks in a newspaper of
general circulation in the municipality or city
Sec. 4. The sale shall be made at public
auction, between the hours of nine in the
morning and four in the afternoon; and shall be
under the direction of the sheriff of the
province, the justice or auxiliary justice of the
peace of the municipality in which such sale
has to be made, or a notary public of said
municipality, who shall be entitled to collect a
fee of five pesos each day of actual work
performed, in addition to his expenses.
Sec. 5. At any sale, the creditor, trustee,
or other persons authorized to act for the
creditor, may participate in the bidding and
purchase under the same conditions as any
other bidder, unless the contrary has been
expressly provided in the mortgage or trust
deed under which the sale is made.
Manner of sale in extrajudicial foreclosure
1. at public auction
2. between 9 a.m. to 4 p.m.
3. under the direction of
a. the sheriff of the province
b. the justice or auxiliary justice of the
peace of the municipality in which such
sale has to be made, or
c. a notary public of said municipality
4. Selling officer entitled to a fee of P5 each
day of actual work performed, in addition to
his expenses.
5. creditor, trustee, or other persons
authorized to act for the creditor, may
participate in the bidding and purchase,
unless the contrary is stipulated
Sec. 6. I n a l l c a s e s i n w h i c h a n
extrajudicial sale is made under the special
power hereinbefore referred to, the debtor, his
successors in interest or any judicial creditor or
judgment creditor of said debtor, or any person
having a lien on the property subsequent to
the mortgage or deed of trust under which the
property is sold, may redeem the same at any
time within the term of one year from and
after the date of the sale; and such
redemption shall be governed by the provisions
of sections four hundred and sixty-four to four
hundred and sixty-six, inclusive, of the Code of
Civil Procedure, in so far as these are not
inconsistent with the provisions of this Act.
Redemption period is 1 year from date of sale.
If the 1 year redemption period has expired
and the buyer has not asked for writ of
possession, with more reason the buyer can
still ask for issuance of a writ of possession
after the lapse of the redemption period.
Any rent collected will be deducted from the
redemption price.
Sec. 7. In any sale made under the
provisions of this Act, the purchaser may
petition the Court of First Instance of the
province or place where the property or any
part thereof is situated, to give him possession
thereof during the redemption period, furnishing
bond in an amount equivalent to the use of
the property for a period of twelve months, to
indemnify the debtor in case it be shown that
the sale was made without violating the
mortgage or without complying with the
requirements of this Act. Such petition shall be
made under oath and filed in form of an ex
parte motion in the registration or cadastral
proceedings if the property is registered, or in
special proceedings in the case of property
registered under the Mortgage Law or under
section one hundred and ninety-four of the
Administrative Code, or of any other real
property encumbered with a mortgage duly
registered in the office of any register of
deeds in accordance with any existing law, and
in each case the clerk of the court shall, upon
the filing of such petition, collect the fees
specified in paragraph eleven of section one
hundred and fourteen of Act Numbered Four
hundred and ninety-six, as amended by Act
Numbered Twenty-eight hundred and sixty-six,
and the court shall, upon approval of the bond,
order that a writ of possession issue,
addressed to the sheriff of the province in
which the property is situated, who shall
execute said order immediately.
For purchaser to gain possession of the
property during the redemption period
1. file petition to the RTC of the province or
place where the property or any part
thereof is situated
a. under oath and
b. filed in form of an ex parte motion
1) in the registration or cadastral
proceedings if the property is
registered, or
2) in special proceedings in the case of
a) property registered under the
Mortgage Law or
b) property registered under Sec.
194 of the Administrative Code,
or of
c) a n y o t h e r r e a l p r o p e r t y
encumbered with a mortgage duly
registered in the office of any
RoD in accordance with any
existing law
c. clerk of the court collect the fees
2. furnish a bond in an amount equivalent to
the use of the property for a period of 12
months, to indemnify the debtor in case it
be shown that the sale was made without
violating the mortgage or without complying
with the requirements of this Act.
The issuance of writ of possession to the
auction buyer is ministerial even if the
mortgagor is questioning the auction sale.
Writ of possession may be enforced against
successors-in-interest, or even tenants of the
mortgagor. The buyer may dispossess the
tenant by express provision of the law.
Sec. 8. T h e d e b t o r m a y , i n t h e
proceedings in which possession was requested,
but not later than thirty days after the
purchaser was given possession, petition that
the sale be set aside and the writ of
possession cancelled, specifying the damages
suffered by him, because the mortgage was
not violated or the sale was not made in
accordance with the provisions hereof, and the
court shall take cognizance of this petition in
accordance with the summary procedure
provided for in section one hundred and twelve
of Act Numbered Four hundred and ninety-six;
and if it finds the complaint of the debtor
justified, it shall dispose in his favor of all or
part of the bond furnished by the person who
obtained possession. Either of the parties may
appeal from the order of the judge in
accordance with section fourteen of Act
Numbered Four hundred and ninety-six; but the
order of possession shall continue in effect
during the pendency of the appeal.
Petition to set aside sale and writ of
possession
1. debtor files it in in the proceedings in which
possession was requested
2. within 30 days after the purchaser was
given possession
3. specifying the damages suffered by him
4. because the mortgage was not violated or
the sale was not made in accordance with
the provisions hereof
5. governed by summary procedure
6. if the court finds the complaint of the
debtor justified, it shall dispose in his favor
of all or part of the bond furnished by the
person who obtained possession
7. Either of the parties may appeal, but the
order of possession shall continue in effect
during the pendency of the appeal.
Sec. 9. When the property is redeemed
after the purchaser has been given possession,
the redeemer shall be entitled to deduct from
the price of redemption any rentals that said
purchaser may have collected in case the
property or any part thereof was rented; if the
purchaser occupied the property as his own
dwelling, it being town property, or used it
gainfully, it being rural property, the redeemer
may deduct from the price the interest of one
per centum per month provided for in section
four hundred and sixty-five of the Code of Civil
Procedure.
When the property is redeemed after the
purchaser has been given possession
1. the redeemer shall be entitled to deduct
from the price of redemption any rentals
that said purchaser may have collected in
case the property or any part thereof was
rented
2. the redeemer may deduct from the price
the interest of one per centum per month if
the purchaser
a. occupied the property as his own
dwelling, it being town property, or
b. used it gainfully, it being rural property
b. Rule 68
General Procedure in Judicial Foreclosure
Section 1. Complaint in action for
foreclosure. — In an action for the foreclosure
of a mortgage or other encumbrance upon real
estate, the complaint shall set forth the date
and due execution of the mortgage; its
assignments, if any; the names and residences
of the mortgagor and the mortgagee; a
description of the mortgaged property; a
statement of the date of the note or other
documentary evidence of the obligation secured
by the mortgage, the amount claimed to be
unpaid thereon; and the names and residences
of all persons having or claiming an interest in
the property subordinate in right to that of the
holder of the mortgage, all of whom shall be
made defendants in the action. (1a)
Contents of Complaint in action for foreclosure
1. date and due execution of the mortgage,
its assignments, if any
2. the names and residences of the mortgagor
and the mortgagee
3. a description of the mortgaged property
4. a statement of the date of the note or
other documentary evidence of the
obligation secured by the mortgage
5. the amount claimed to be unpaid thereon;
and
6. the names and residences of all persons
having or claiming an interest in the
property subordinate in right to that of the
holder of the mortgage, all of whom shall
be made defendants in the action.
Sec. 2. Judgment on foreclosure for
payment or sale. — If upon the trial in such
action the court shall find the facts set forth in
the complaint to be true, it shall ascertain the
amount due to the plaintiff upon the mortgage
debt or obligation, including interest and other
charges as approved by the court, and costs,
and shall render judgment for the sum so
found due and order that the same be paid to
the court or to the judgment obligee within a
period of not less than ninety (90) days nor
more than one hundred twenty (120) days
from the entry of judgment, and that in default
of such payment the property shall be sold at
public auction to satisfy the judgment. (2a)
If upon the trial in such action the court shall
find the facts set forth in the complaint to be
true, it shall
1. ascertain the amount due to the plaintiff
upon the mortgage debt or obligation,
 including interest and other charges as
approved by the court, and costs,
2. render judgment for the sum so found due
and
3. order that
a. the due amount to be paid to the court
or to the judgment obligee within a
period of not less than 90 days nor
more than 120 days from the entry of
judgment, and
b. in default of such payment the property
shall be sold at public auction to satisfy
the judgment
Sec. 3. Sale of mortgaged property; effect.
— When the defendant, after being directed to
do so as provided in the next preceding
section, fails to pay the amount of the
judgment within the period specified therein,
the court, upon motion, shall order the
property to be sold in the manner and under
the provisions of Rule 39 and other regulations
governing sales of real estate under execution.
Such sale shall not affect the rights of persons
holding prior encumbrances upon the property
or a part thereof, and when confirmed by an
order of the court, also upon motion, it shall
operate to divest the rights in the property of
all the parties to the action and to vest their
rights in the purchaser, subject to such rights
of redemption as may be allowed by law.
Upon the finality of the order of
confirmation or upon the expiration of the
period of redemption when allowed by law, the
purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the
possession of the property unless a third party
is actually holding the same adversely to the
judgment obligor. The said purchaser or last
redemptioner may secure a writ of possession,
upon motion, from the court which ordered the
foreclosure. (3a)
The plaintiff need not serve the motion to
order foreclosure sale.
When the defendant fails to pay the amount of
the judgment
1. the court, upon motion, shall order the
property to be sold on execution
2. such sale shall not affect the rights of
persons holding prior encumbrances upon
the property or a part thereof
3. when confirmed by an order of the court,
also upon motion (by the purchaser), it
shall operate to divest the rights in the
property of all the parties to the action and
to vest their rights in the purchaser,
subject to such rights of redemption as
may be allowed by law.
4. Upon the finality of the order of
confirmation or upon the expiration of the
period of redemption when allowed by law,
unless a 3rd party is actually holding the
same adversely to the judgment obligor
a. the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to
the possession of the property
b. the said purchaser or last redemptioner
may secure a writ of possession, upon
motion, from the court which ordered
the foreclosure.
Sec. 4. Disposition of proceeds of sale. —
The amount realized from the foreclosure sale
of the mortgaged property shall, after
deducting the costs of the sale, be paid to the
person foreclosing the mortgage, and when
there shall be any balance or residue, after
paying off the mortgage debt due, the same
shall be paid to junior encumbrancers in the
order of their priority, to be ascertained by the
court, or if there be no such encumbrancers or
there be a balance or residue after payment to
them, then to the mortgagor or his duly
authorized agent, or to the person entitled to
it. (4a)
Disposition of proceeds of sale after deducting
the costs of the sale
1. paid to the mortgagee
2. any balance or residue is paid to junior
encumbrancers in the order of their priority,
to be ascertained by the court,
3. if there be no such encumbrancers or there
be a balance or residue after payment to
them, then to the mortgagor or his duly
authorized agent, or to the person entitled
to it
Sec. 5. How sale to proceed in case the
debt is not all due. — If the debt for which
the mortgage or encumbrance was held is not
all due as provided in the judgment, as soon as
a sufficient portion of the property has been
sold to pay the total amount and the costs
due, the sale shall terminate; and afterwards,
as often as more becomes due for principal or
interest and other valid charges, the court
may, on motion, order more to be sold. But if
the property cannot be sold in portions without
prejudice to the parties, the whole shall be
ordered to be sold in the first instance, and
the entire debt and costs shall be paid, if the
proceeds of the sale be sufficient therefor,
there being a rebate of interest where such
rebate is proper. (5a)
If the debt for which the mortgage or
encumbrance was held is not all due as
provided in the judgment
1. as soon as a sufficient portion of the
property has been sold to pay the total
amount and the costs due, the sale shall
terminate; and
2. afterwards, as often as more becomes due
for principal or interest and other valid
charges, the court may, on motion, order
more to be sold
3. if the property cannot be sold in portions
without prejudice to the parties
a. the whole shall be ordered to be sold in
the first instance
b. the entire debt and costs shall be paid,
if the proceeds of the sale be sufficient
therefore
c. there being a rebate of interest where
such rebate is proper
VERY IMPORTANT PROVISION
ANG SEC 6
Sec. 6. Deficiency judgment. — If upon the
sale of any real property as provided in the
next preceding section there be a balance due
to the plaintiff after applying the proceeds of
the sale, the court, upon motion, shall render
judgment against the defendant for any such
balance for which, by the record of the case,
he may be personally liable to the plaintiff,
upon which execution may issue immediately if
the balance is all due at the time of the
rendition of the judgment; otherwise, the
plaintiff shall be entitled to execution at such
time as the balance remaining becomes due
under the terms of the original contract, which
time shall be stated in the judgment. (6a)
If upon the sale of any real property there be
a balance due to the plaintiff after applying the
proceeds of the sale
1. the court, upon motion, shall render
judgment against the defendant for any
such balance for which, by the record of
the case, he may be personally liable to the
plaintiff
2. if the balance is
a. all due at the time of the rendition of
the judgment – execution may issue
immediately
b. not all due at the time of the rendition
of the judgment – the plaintiff shall be
entitled to execution at such time as
the balance remaining becomes due,
which time shall be stated in the
judgment
Sec. 7. Registration. — A certified copy of
the final order of the court confirming the sale
shall be registered in the registry of deeds. If
no right of redemption exists, the certificate of
title in the name of the mortgagor shall be
cancelled, and a new one issued in the name of
the purchaser.
Where a right of redemption exists, the
certificate of title in the name of the
mortgagor shall not be cancelled, but the
certificate of sale and the order confirming the
sale shall be registered and a brief
memorandum thereof made by the registrar of
deeds upon the certificate of title. In the event
the property is redeemed, the deed of
redemption shall be registered with the registry
of deeds, and a brief memorandum thereof
shall be made by the registrar of deeds on said
certificate of title.
If the property is not redeemed, the final
deed of sale executed by the sheriff in favor of
the purchaser at the foreclosure sale shall be
registered with the registry of deeds;
whereupon the certificate of title in the name
of the mortgagor shall be cancelled and a new
one issued in the name of the purchaser. (n)
A certified copy of the final order of the court
confirming the sale shall be registered in the
registry of deeds.
1. If no right of redemption exists - the title
of the mortgagor is cancelled, and a new
one for the purchaser is issued
2. Where a right of redemption exists
a. the title of the mortgagor shall not be
cancelled, but the certificate of sale and
the order confirming the sale shall be
registered and a brief memorandum
thereof made by the registrar of deeds
upon the certificate of title.
b. Where the property is
1) Redeemed – the deed of redemption
shall be registered with the RoD, and
a brief memorandum thereof shall be
 made by the RoD on said certificate
of title.
2) not redeemed – the final deed of
sale executed by the sheriff in favor
of the purchaser at the foreclosure
sale shall be registered with the RoD;
whereupon the title of the mortgagor
is cancelled and a new one for the
purchaser is issued
Sec. 8. Applicability of other provisions. —
The provisions of sections 31, 32 and 34 of
Rule 39 shall be applicable to the judicial
foreclosure of real estate mortgages under this
Rule insofar as the former are not inconsistent
with or may serve to supplement the provisions
of the latter. (8a)
cf Rule 39, Secs 31, 32, and 34
Sec. 31. Manner of using premises
pending redemption; waste restrained. —
Until the expiration of the time allowed
for redemption, the court may, as in
other proper cases, restrain the
commission of waste on the property by
injunction, on the application of the
purchaser or the judgment obligee, with
or without notice; but it is not waste for
a person in possession of the property
at the time of the sale, or entitled to
possession afterwards, during the period
allowed for redemption, to continue to
use it in the same manner in which it
was previously used; or to use it in the
ordinary course of husbandry; or to
make the necessary repairs to buildings
thereon while he occupies the property.
(33a)
Sec. 32. Rents, earnings and income of
property pending redemption. — The
purchaser or a redemptioner shall not be
entitled to receive the rents, earnings
and income of the property sold on
execution, or the value of the use and
occupation thereof when such property
is in the possession of a tenant. All
rents, earnings and income derived from
the property pending redemption shall
belong to the judgment obligor until the
expiration of his period of redemption.
(34a)
Sec. 34. Recovery of price if sale not
effective; revival of judgment. — If the
purchaser of real property sold on
execution, or his successor in interest,
fails to recover the possession thereof,
or is evicted therefrom, in consequence
of irregularities in the proceedings
concerning the sale, or because the
judgment has been reversed or set
aside, or because the property sold was
exempt from execution, or because a
third person has vindicated his claim to
the property, he may on motion in the
same action or in a separate action
recover from the judgment obligee the
price paid, with interest, or so much
thereof as has not been delivered to the
judgment obligor; or he may, on motion,
have the original judgment revived in his
name for the whole price with interest,
or so much thereof as has been
delivered to the judgment obligor. The
judgment so revived shall have the same
force and effect as an original judgment
would have as of the date of the revival
and no more. (36a)
During the redemption period, the court may
restrain the commission of waste on the
property by injunction, on the application of
the purchaser or the judgment obligee.
All rents, earnings and income derived from the
property pending redemption shall belong to
the judgment obligor.
Purchaser may on motion recover from the
judgment obligee the price paid, with interest,
or so much thereof as has not been delivered
to the judgment obligor, or have the original
judgment revived, if he
1. fails to recover the possession
2. is evicted, because of
a. irregularities in the proceedings
concerning the sale, or
b. the judgment has been reversed or set
aside, or
c. the property sold was exempt from
execution, or
d. a third person has vindicated his claim
to the property
c. Cases
Rehabilitation Finance Corporation
v. Alto Surety, 107 Phil 387
(1960)
Facts: Palma mortgaged his land in favor of
RFC. Thereafter with the consent of RFC, Palma
mortgaged the same property to Alto. Both
mortgages were duly registered. RFC foreclosed
without notifying Alto and was the highest
bidder. RFC consolidates ownership but the
mortgage of Alto was carried over the new
title. RFC now seeks to have Alto’s mortgage
lien cancelled.
ISSUE: W/ ANNOTATION WAS MADE IN
ACCORDANCE WITH LAW
Held:
IT IS ADVISABLE TO IMPLEAD THE JUNIOR MGR
SO THEY’D BE NOTIFIED.
If the junior mortgagor was not notified of the
foreclosure of the 1st mortgage, he can not be
considered to have terminated or extinguished
the rights of said junior encumbrancer over the
property.
An interest in the mortgaged property acquired
subsequent to the (first) mortgage may be
divested or barred only by making the holder
thereof a party to the proceedings to
foreclose.
Note: Other mortgagees who have superior lien
need not be impleaded. The right of junior
mortgagees who have not been impleaded is
not lost by the foreclosure of the property.
The junior mortgagee may redeem the property
by paying the obligation of the mortagor to
the foreclosing mortgagee. Junior mortgagees
are not indispensable parties, but it is advisable
to implead them.
HERE, JUNIOR WAS NOT NOTIFIED, THAT FACT
CANNOT BE MADE AS TO EXTINGUISH HIS
RIGHT AS JUNIOR ENCUMBRANCER. ( SO
IMPORTANT JUD NAG ANNOTATION SA BACK
SA TITLE)
Tiglao v. Botones, 90 Phil 275
(1951)
FACTS: Tarlac CFI ruled in favor of plaintiff
Tiglao and against defendant Botones in a
foreclosure case. Upon motion of Tiglao, CFI
issued a writ of execution. Provincial Sheriff
sold at public auction the mortgaged properties
to Tiglao as highest bidder. Tiglao filed an ex-
parte motion for confirmation of sale. CFI
approved the motion.
Tiglao moved for issuance of writ of
possession. Botones opposed alleging inter alia
that sale was not legally confirmed since he
was not given notice on the motion for
confirmation or its hearing. CFI granted
Tiglao’s motion for issuance of writ of
possession. Botones filed MfR which was
denied. Botones appealed.
WHETHER TRIAL COURT ERRED IN SALE …
THE MOTION FOR THE EXECUTION AFTER
EQUITY OF REDEMPTION ISSUED BY JUDGE. THE
MGEE MAY FILE AN EX PARTE MOTION FOR
FORECLOSURE SALE. PEDE RA EXPARTE KAY
NOTIFIED NA MAN. MOTION FO RCONFIRMATION
OF SALE IS NOT EX PARTE, THERE MUST BE
NOTICE AND HEARING. KAY HERE PEDE PA
MAKAPAY SI MGR.
HELD: Prior to confirmation of the sale, a
purchaser in a foreclosure sale has no right to
possession. Neither can the mortgagors compel
the puchaser to pay prior to the confirmation
of the foreclosure sale. Hearing is required
before confirmation can take place.
After foreclosure and prior to confirmation, the
mortgagor can still exercise his equity of
redemption.
Notice and hearing of motion for confirmation
are essential to the validity of an order of
confirmation of the foreclosure sale.
Note: Motion for foreclosure sale need not be
served on the other party. It is an ex-parte
motion. However, a motion for confirmation of
title must be served on the other party.
GSIS v. CFI of Iloilo, 175 SCRA 19
(1989)
FACT: GSIS granted a real estate loan to
spouses Bacaling for subdivision development.
To secure the loan, the Bacalings executed a
real estate mortgage on 4 lots owned by them.
Bacalings failed to pay amortizations. GSIS
filed with Iloilo CFI a complaint for judicial
foreclosure. CFI ruled in favor of GSIS and
ordered the Bacalings to pay. Should the
Bacalings fail to pay w/in 90days, the 4 lots
would be sold at public auction.
Mrs. Bacaling failed to pay. Lots were sold at
public auction. GSIS was highest bidder.
GSIS filed motion for confirmation of sale.
Maria Teresa Integrated Devt Corp (MTIDC),
alleged assignee of the Bacaling’s right to
redemption, filed a “motion to exercise right of
redemption”. CFI granted said motion.
However, MTIDC check bounced. On GSIS’s
motion, CFI declared null and void the MTIDC
redemption.
14yrs after, MTIDC filed MfR and sought
restoration of its right of redemption. CFI
granted said motion despite opposition from
GSIS. GSIS appealed by certiorari.
HELD: There is no right of redemption from a
judicial foreclosure after confirmation, except
those granted in case of mortgagees who are
banks or banking institutions.
In judicial foreclosure, there is only an equity of
redemption where the morgagor can redeem
within 90 days from finality of judgment, and
any time before confirmation of foreclosure
sale.
Only judicial foreclosure of mortgages to
banking institutions, and those made
extrajudicially are subject to legal redemption.
Since GSIS is not a bank or banking institution,
its judicial foreclosure of the mortgage is not
subject to redemption after the foreclosure
sale has been confirmed.
Cruz v. IAC, 169 SCRA 9 (1989)
PETITIONERS sps. Cruz mortgaged property to
respondent. Compromise agreement was
reached. The agreement, upon failure to pay
the sums agreed in the period stipulated,
plaintiff shall be entitled to foreclose the
mortgaged property. Failed petitioner so private
respondent froreclosed.
ISssue: w./n compromise agreement was null
and void
Held: no, section 2,rule 68 pending case there
is, then there is compromise agreement. Then
Compromise agreement can be executed later.
Part of the order of the judge that there was
really an obligation( equity f redemption) to
pay within 90 days. The parties now deemed
waived the Equity of redemption. (sir) If there
is no compromise agreement the 90 day period
has to be respected.
(BOOK)
In the absence of agreement, the 90 day
period (and any time prior to confirmation of
foreclosure sale) to exercise the equity of
redemption has to be respected. Equity of
redemption may be waived through a
compromise agreement.
Kho v. CA, 203 SCRA 160
(1991) (extrajujdicial kay 1year)
Sps. Who executed REM. Guarantee for loan
granted by bank to the spouses. REM
amendments, the amount payable totaled to
2.8 million. 688 thou ra napay so banco Filipino
foreclosed the Mortgage and on bidding, Banco
oil won.
Both during and after the redemption period,
the purchaser is entitled to a writ of
possession, regardless whether there is a
pending suit for annulment of the mortgage or
the foreclosure itself.
Annulment of mortgage
Annulment of foreclosure are remedies of
debor- Extrajud meaning he proceeded directly
to the sheriff so the remedy if there’s
irregularity in foreclosure or the contract itself,
he may file in court for the annulment of
mortgage contract or the annulment of
foreclosure.
Are these remedies( annulment of mortgage
and annilment of foreclosure) available in
judicial foreclosure? If judicial foreclosure,
there’s a judgment and foreclosure, u cannot
file a separate case, otherwise res judicator or
lis pendent, remedy is appeal from the decision
within 15 days . If you’ll question interlocutor,
certiorari is the remedy. If the entire merit of
the case, remedy is appeal not certiorari
Roxas v. CA, 221 SCRA (1993)
Facts: Roxas is the owner of a parcel of land.
The land was mortgaged in favor of Rural Bank
of Dumalag. The mortgage was foreclosed and
sold to Rural Bank of Dumalag as the highest
bidder, who was able to consolidate ownership
after expiration of the redemption period.
Roxas files a complaint for cancellation of
foreclosure of mortgage and annulment of
auction sale on the ground that the foreclosure
did not comply with the requirement of giving
written notices to all possible redemptioners.
The Certificate of Posting executed by the
sheriff states that he posted 3 copies of the
notice of public auction sale in 3 conspicuous
public places in the municipality of Panay,
where the subject land was situated and in like
manner in Roxas City, where the public auction
sale took place. Furthermore, the notice was
posted only in the Municipality, but not in the
barrio where the property was located.
Held: Publication of notice of mortgage
foreclosure sales must be strictly complied
with, and that a slight deviation therefrom will
invalidate the notice and render the sale
voidable.
Failure to publish notice of auction sale as
required by the statute constitutes a
jurisdictional defect which invalidates the sale.
There was a failure to publish the notices of
auction sale.
Proof of publication shall be accomplished by
an affidavit of the sheriff or officer conducting
the foreclosure sale.
In this case, the sheriff executed a certificate
of posting, which is not the affidavit required
by law. An affidavit is a sworn statement in
writing whereas a certificate is merely a
statement in writing. Strict compliance with the
aforementioned provision is mandated.
Substantial compliance is not enough.
Remedy of the purchaser in extrajudicial
foreclosure, what’s the remedy? What must he
show in the registry of deeds? Cert of sale
issued … remedy is consolidation of ownership.
You consolidate so you can transfer the title in
your name.
If there’s failure to redeem the property, the
buyer a retro has to file consolidation of
ownership. Te basis of ownership is the sale
not the consolidation.
Consolidation of ownership- pact commisuriom
San Jose v. CA, 225 SCRA 450
(1993)
Failure to state the correct TCT number is fatal
to the notice and the resulting foreclosure sale
of mortgaged land. Correcting technical
description does not cure the defect.
IFC v. Apostol 177 SCRA
(15sep1989) L-35453
DEFAULT ON THE LOAN - PRINCIPAL
REM- SUBSIDIARY
WAIVED THE PRINCIPAL SO WALA NA ANG
SUBSIDIRY
COLLECTION AND JUJDICIAL
THERE’S NO SPLITTING BECAUE THERE’S ONLY
ONE ACTION FILED.
WHAT IF COLLECTION FIRST,
THEN HE THINKS OF MORTGAGE
OPT FOR COLLECTION IF YOU THINK THAT THE
UTANGAN HAS MROE PROPERTIES THAN THAT
VALUE OF THE REM ( MEANING FEL NIMO
GAMAY RA REM)
FACTS: spouses Padilla bought on credit 3
Isuzu trucks from Ind’l Transport Equipment
(ITE). Padillas executed a ProNote for the
balance of the purchase price, securing
payment by a chattel mortgage on said trucks
and additional collateral or real estate
mortgage on their property. ITE indorsed the
note and assigned the real estate mortgage to
Ind’l Finance Corp(IFC).
Padillas failed to pay several installments. IFC
sued Padilla in Rizal CFI for recovery of unpaid
balance. CFI ruled for IFC and ordered the
Padillas to pay. Said order was sustained on
appeal to the CA.
Private respondents spouses Delmendo
(transferees of the mortgaged real property)
filed a complaint against IFC in the respondent
CFI. They sought the cancellation of the
mortgage lien in the TCT and the delivery of
the owner’s copy of said title considering that
IFC has waived its rights over the mortgage
when it instituted a personal action against the
Padillas. IFC moved for dismissal. Delmendos
moved for summary judgment which CFI
granted.
Upon denial of MfR, IFC appealed to the SC.
ISSUE: WON by filing a personal action for the
recovery of debt secured by real estate
mortgage, petitioner is deemed to have
abandoned its mortgage lien on the property in
question.
HELD: Mortgage creditor may elect to waive his
security and bring, instead, an ordinary action
to recover the indebtedness with the right to
execute a judgement thereon on all the
properties of the debtor, including the subject-
matter of the mortgage, subject to the
qualification that if he fails in the remedy he
chose, he cannot pursue further the remedy he
has waived.
Though the debt and the mortgage constitute
separate agreements, the latter is subsidiary to
the former, and both refer to one and the
same obligation. Consequently, there exists
only one cause of action for a single breach of
that obligation. Plaintiff, then, by applying the
rule above stated, cannot split up his single
cause of action by filing a complaint for
foreclosure of the mortgage. If he does so, the
filing of the first complaint will bar the
subsequent complaint. By allowing the creditor
to file two separate complaints simultaneously
or successively, one to recover his credit and
another to foreclose his mortgage, we will, in
effect, be authorizing him plural redress for a
single breach of contract at so much cost to
the courts and with so much vexation and
oppression to the debtor.
8. Partition
CO-OWNERSHIP FROM SUCCESSION OR
CONTRACTS OF CO-OWNERSHIP
2STATEGES
1. PROVE THAT THERE IS CO-OWNERSHIP
2. PARTITION PROPER- DISTRIBUTION
3.
a. Rule 69
Section 1. Complaint in action for partition
of real estate. — A person having the right to
compel the partition of real estate may do so
as provided in this Rule, setting forth in his
complaint the nature and extent of his title and
an adequate description of the real estate of
which partition is demanded and joining as
defendants all other persons interested in the
property. (1a)
Contents of the Complaint for partition of real
estate
1. nature and extent of his title
2. an adequate description of the real estate
of which partition is demanded
3. joining as defendants all other persons
interested in the property.
Sec. 2. Order for partition, and partition by
agreement thereunder. — If after the trial the
court finds that the plaintiff has the right
thereto, it shall order the partition of the real
estate among all the parties in interest.
Thereupon the parties may, if they are able to
agree, make the partition among themselves by
proper instruments of conveyance, and the
court shall confirm the partition so agreed
upon by all the parties, and such partition,
together with the order of the court confirming
the same, shall be recorded in the registry of
deeds of the place in which the property is
situated. (2a)
A final order decreeing partition and
accounting may be appealed by any party
aggrieved thereby. (n)
cf Special Proceedings on extra-judicial partition
of the estate
If after the trial the court finds that the
plaintiff has the right thereto, it shall order the
partition of the real estate among all the
parties in interest. A final order decreeing
partition and accounting may be appealed by
any party aggrieved thereby.
Voluntary partition
1. parties agree to make the partition among
themselves by proper instruments of
conveyance
2. the court confirms the partition so agreed
3. partition, together with the order of the
court confirming the same, recorded in the
RoD of the place in which the property is
situated
Sec. 3. Commissioners to make partition
when parties fail to agree. — If the parties are
unable to agree upon the partition, the court
shall appoint not more than three (3)
competent and disinterested persons as
commissioners to make the partition,
commanding them to set off to the plaintiff
and to each party in interest such part and
proportion of the property as the court shall
direct. (3a)
Sec. 4. Oath and duties of commissioners.
— Before making such partition, the
commissioners shall take and subscribe an oath
that they will faithfully perform their duties as
commissioners, which oath shall be filed in
court with the other proceedings in the case.
In making the partition, the commissioners shall
view and examine the real estate, after due
notice to the parties to attend at such view
and examination, and shall hear the parties as
to their preference in the portion of the
property to be set apart to them and the
comparative value thereof, and shall set apart
the same to the parties in lots or parcels as
will be most advantageous and equitable,
having due regard to the improvements,
situation and quality of the different parts
thereof. (4a)
Sec. 5. Assignment or sale of real estate by
commissioners. — When it is made to appear
to the commissioners that the real estate, or a
portion thereof, cannot be divided without
prejudice to the interests of the parties, the
court may order it assigned to one of the
parties willing to take the same, provided he
pays to the other parties such amounts as the
commissioners deem equitable, unless one of
the interested parties asks that the property
be sold instead of being so assigned, in which
case the court shall order the commissioners to
sell the real estate at public sale under such
conditions and within such time as the court
may determine. (5a)
Sec. 6. Report of commissioners;
proceedings not binding until confirmed. — The
commissioners shall make a full and accurate
report to the court of all their proceedings as
to the partition, or the assignment of real
estate to one of the parties, or the sale of the
same. Upon the filing of such report, the clerk
of court shall serve copies thereof on all the
interested parties with notice that they are
allowed ten (10) days within which to file
objections to the findings of the report, if they
so desire. No proceeding had before or
conducted by the commissioners shall pass the
title to the property or bind the parties until
the court shall have accepted the report of the
commissioners and rendered judgment thereon.
(6a)
Sec. 7. Action of the court upon
commissioners’ report. — Upon the expiration
of the period of ten (10) days referred to in
the preceding section, or even before the
expiration of such period but after the
interested parties have filed their objections to
the report or their statement of agreement
therewith, the court may, upon hearing, accept
the report and render judgment in accordance
therewith; or, for cause shown, recommit the
same to the commissioners for further report
of facts; or set aside the report and appoint
new commissioners; or accept the report in
part and reject it in part; and may make such
order and render such judgment as shall
effectuate a fair and just partition of the real
estate, or of its value, if assigned or sold as
above provided, between the several owners
thereof. (7)
If the parties are unable to agree upon the
partition
1. the court shall appoint not more than 3
competent and disinterested persons as
commissioners to make the partition
2. commanding them to set off to the plaintiff
and to each party in interest such part and
proportion of the property as the court
shall direct
3. commissioners shall take and subscribe an
oath that they will faithfully perform their
duties as commissioners. The oath shall be
filed in court.
4. The commissioners shall
a. view and examine the real estate, after
due notice to the parties to attend at
such view and examination, and
b. hear the parties as to their preference in
the portion of the property to be set
apart to them and the comparative
value thereof
c. set apart the same to the parties in lots
or parcels as will be most advantageous
and equitable, having due regard to
1) the improvements
2) situation and
3) quality of the different parts
5. When the real estate, or a portion thereof,
cannot be divided without prejudice to the
interests of the parties, the court may
order it
a. assigned to one of the parties willing to
take the same, provided he pays to the
other parties such amounts as the
commissioners deem equitable
b. sold at public sale by the commissioners,
if one of the interested parties so asks
6. The commissioners shall make a full and
accurate report to the court of all their
proceedings as to the partition, or the
assignment of real estate to one of the
parties, or the sale of the same.
7. Upon the filing of such report, the clerk of
court shall serve copies thereof on all the
interested parties with notice that they are
allowed 10 days within which to file
objections to the findings of the report, if
they so desire.
8. Upon the expiration of the period of 10
days, or even before the expiration of such
period but after the interested parties have
filed their objections to the report or their
statement of agreement therewith, the
court may, upon hearing
a. accept the report and render judgment
in accordance therewith; or
 b. for cause shown, recommit the same to
the commissioners for further report of
facts; or
c. set aside the report and appoint new
commissioners; or
d. accept the report in part and reject it in
part; and
e. may make such order and render such
judgment as shall effectuate a fair and
just partition of the real estate, or of its
value
9. No proceeding had before or conducted by
the commissioners shall pass the title to
the property or bind the parties until the
court shall have accepted the report of the
commissioners and rendered judgment
thereon.
Sec. 8. Accounting for rent and profits in
action for partition. — In an action for partition
in accordance with this Rule, a party shall
recover from another his just share of rents
and profits received by such other party from
the real estate in question, and the judgment
shall include an allowance for such rents and
profits. (8a)
Sec. 9. Power of guardian in such
proceedings. — The guardian or guardian ad
litem of a minor or person judicially declared to
be incompetent may, with the approval of the
court first had, do and perform on behalf of his
ward any act, matter, or thing respecting the
partition of real estate, which the minor or
person judicially declared to be incompetent
could do in partition proceedings if he were of
age or competent. (9a)
Sec. 10. Costs and expenses to be taxed
and collected. — The court shall equitably tax
and apportion between or among the parties
the costs and expenses which accrue in the
action, including the compensation of the
commissioners, having regard to the interests
of the parties, and execution may issue
therefor as in other cases. (10a)
Sec. 11. The judgment and its effect; copy
to be recorded in registry of deeds. — If
actual partition of property is made, the
judgment shall state definitely, by metes and
bounds and adequate description, the particular
portion of the real estate assigned to each
party, and the effect of the judgment shall be
to vest in each party to the action in severalty
the portion of the real estate assigned to him.
If the whole property is assigned to one of the
parties upon his paying to the others the sum
or sums ordered by the court, the judgment
shall state the fact of such payment and of
the assignment of the real estate to the party
making the payment, and the effect of the
judgment shall be to vest in the party making
the payment the whole of the real estate free
from any interest on the part of the other
parties to the action. If the property is sold
and the sale confirmed by the court, the
judgment shall state the name of the purchaser
or purchasers and a definite description of the
parcels of real estate sold to each purchaser,
and the effect of the judgment shall be to
vest the real estate in the purchaser or
purchasers making the payment or payments,
free from the claims of any of the parties to
the action. A certified copy of the judgment
shall in either case be recorded in the registry
of deeds of the place in which the real estate
is situated, and the expenses of such recording
shall be taxed as part of the costs of the
action. (11a)
If actual partition of property is made
1. the judgment shall state definitely, by
metes and bounds and adequate
description, the particular portion of the real
estate assigned to each party, the effect of
the judgment shall be to vest in each party
to the action in severalty the portion of the
real estate assigned to him.
2. If the whole property is assigned to one of
the parties upon his paying to the others
the sum or sums ordered by the court, the
judgment shall state the fact of such
payment and of the assignment of the real
estate to the party making the payment,
and the effect of the judgment shall be to
vest in the party making the payment the
whole of the real estate free from any
interest on the part of the other parties to
the action.
3. If the property is sold and the sale
confirmed by the court, the judgment shall
state the name of the purchaser or
purchasers and a definite description of the
parcels of real estate sold to each
purchaser, and the effect of the judgment
shall be to vest the real estate in the
purchaser or purchasers making the
payment or payments, free from the claims
of any of the parties to the action.
4. A certified copy of the judgment shall in
either case be recorded in the registry of
deeds of the place in which the real estate
is situated, and the expenses of such
 recording shall be taxed as part of the
costs of the action.
Sec. 12. Neither paramount rights nor
amicable partition affected by this Rule. —
Nothing in this Rule contained shall be
construed so as to prejudice, defeat, or
destroy the right or title of any person
claiming the real estate involved by title under
any other person, or by title paramount to the
title of the parties among whom the partition
may have been made; nor so as to restrict or
prevent persons holding real estate jointly or in
common from making an amicable partition
thereof by agreement and suitable instruments
of conveyance without recourse to an action.
(12a)
Sec. 13. Partition of personal property. —
The provisions of this Rule shall apply to
partitions of estates composed of personal
property, or of both real and personal property,
in so far as the same may be applicable. (13)
b. Cases
Roque v. IAC, 165 SCRA 118
(1988)
PARCEL OF LAND owned by__. His intestate
heirs executed a document Extrajudicial
partition. Later on the heirs decided collectively
to .. victor and Ernesto roque and sold 3/4
undivided portion to their half sister. The
property belong to another person. ……
First stage: they are real owners; case shut be
dismissed.. there’s decision na ordering parties
to partition, how do we question this dcision?
Appeal or certiorari?
An action for partition — which is typically
brought by a person claiming to be co-owner
of a specified property against a defendant or
defendants whom the plaintiff recognizes to be
co-owners — may be seen to present
simultaneously two principal issues. First, there
is the issue of whether the plaintiff is indeed a
co-owner of the property sought to be
partitioned. Second, assuming that the plaintiff
successfully hurdles the first issue, there is the
secondary issue of how the property is to be
divided between plaintiff and defendant(s) —
i.e., what portion should go to which co-owner.
Should the trial court find that the defendants
do not dispute the status of the plaintiff as
co-owner, the court can forthwith proceed to
the actual partitioning of the property involved.
In case the defendants assert in their Answer
exclusive title in themselves adversely to the
plaintiff, the court should not dismiss the
plaintiff's action for partition but, on the
contrary and in the exercise of its general
jurisdiction, resolve the question of whether the
plaintiff is co-owner or not. Should the trial
court find that the plaintiff was unable to
sustain his claimed status as co-owner, or that
the defendants are or have become the sole
and exclusive owners of the property involved,
the court will necessarily have to dismiss the
action for partition. This result would be
reached, not because the wrong action was
commenced by the plaintiff, but rather because
the plaintiff having been unable to show co-
ownership rights in himself, no basis exists for
requiring the defendants to submit to partition
the property at stake. If, upon the other hand,
the court after trial should find the existence
of co-ownership among the parties litigant, the
court may and should order the partition of the
property in the same action. Judgment for one
or the other party being on the merits, the
losing party may then appeal (by record on
appeal because the case for partition will note
be suspended and the records will be used in
the trial court) the same. In either case,
however, it is unnecessary to require the
plaintiff to file another action, separate and
independent from that for partition originally
instituted, just to determine who the co-owners
are. Functionally, an action for partition may be
seen to be at once an action for declaration of
co-ownership and for segregation and
conveyance of a determinate portion of the
property involved.
Furthermore, no matter how long the co-
ownership has lasted, a co-owner can always
opt out of the co-ownership, and provided the
defendant co-owners or co-heirs have
theretofore expressly or impliedly recognized
the co-ownership, they cannot set up as a
defense the prescription of the action for
partition. But if the defendants show that they
had previously asserted title in themselves
adversely to the plaintiff and for the requisite
period of time, the plaintiff’s right to require
recognition of his status as a co-owner will
have been lost by prescription and the court
cannot issue an order requiring partition.
Fabrica v. CA, 146 SCRA 250
(1986)
The records of the case clearly reveal that the
main purpose of the complaint is to determine
who between the parties are the true owners
and entitled to the exclusive use of the
disputed properties. While it is true that the
complaint is one for partition, it is one which is
premised on the resolution of the issue on the
validity of the oral partition allegedly made in
favor of defendants and the two deeds of
conveyance executed in the names of the heirs
of the deceased spouses. Unless this issue of
ownership is definitely and finally resolved, it
would be premature to effect a partition of the
disputed properties.
When the trial court rendered its judgment of
partition in favor of the plaintiffs, rejecting
defendants' claim of exclusive ownership of the
properties by previous oral partition, it
rendered a final or definitive judgment on the
merits from which the party adversely affected
can make an appeal. The decision of the trial
court declaring null the aforesaid conveyances
and granting recovery of the properties for the
purpose of ordering their partition is a
definitive judgment because it decided the
rights of the parties upon the issue submitted.
It was not, therefore, an interlocutory order. A
judgment which grants recovery of the
ownership and possession of property in favor
of one party as against the adverse claim of
title of the other is in effect a final judgment
which is appealable. Where the primary purpose
of a case is to ascertain and determine who, as
between plaintiff and defendant, is the true
owner and entitled to the exclusive use of the
disputed property, the judgment rendered by
the lower court is a judgment on the merits as
to those questions, and that the order for an
accounting is merely incidental to such
judgment.
GARINGAN VS GARINGAN \
W/N ORDER OF PARTITION OF SHARIA DISTRCIT
COURT IS INVALID?
YES , ONE HOMESTEAD PATENT IS ISSUED MAN
OCT, TO ATTACK THIS THRU PARTITION IS TO
ATTACK TORRENS TITLE, HENCE THIS WOULD
FAIL.
LACBAYAN VS HAMOY
UNIONS WITHOUT MARRIAGE SEC 147-148
NEXT MEETING.
9. Forcible Entry and Unlawful Detainer
a. Revised Rule on Summary
Procedure
cf Revised Rule on Summary Procedure under
Ordinary Civil Actions, Rule 5
b. Rule 70
General procedure in ejectment cases
1. Verified complaint filed with the MTC within
1 year from unlawful deprivation or
withholding of possession
2. Answer within 10 days from receipt of
summons
3. Preliminary conference within 30 days from
answer
4. Court issues preliminary conference order
within 5 days.
5. Parties submit affidavits of witnesses, other
evidences and position papers within 10
days from receipt of preliminary conference
order
6. Court renders judgment within 30 days from
receipt of affidavits and position papers.
Section 1. Who may institute proceedings,
and when. — Subject to the provisions of the
next succeeding section, a person deprived of
the possession of any land or building by force,
intimidation, threat, strategy, or stealth, or a
lessor, vendor, vendee, or other person against
whom the possession of any land or building is
unlawfully withheld after the expiration or
termination of the right to hold possession, by
virtue of any contract, express or implied, or
the legal representatives or assigns of any such
lessor, vendor, vendee, or other person, may,
at any time within one (1) year after such
unlawful deprivation or withholding of
possession, bring an action in the proper
Municipal Trial Court against the person or
persons unlawfully withholding or depriving of
possession, or any person or persons claiming
under them, for the restitution of such
possession, together with damages and costs.
(1a)
Who may institute proceedings (section1 is
forcible entry)
1. a person deprived of the possession of any
land or building by force, intimidation,
threat, strategy, or stealth, or (FISTS)
2. a lessor, vendor, vendee, or other person
against whom the possession of any land or
building is unlawfully withheld after the
expiration or termination of the right to
hold possession, by virtue of any contract,
or
3. the legal representatives or assigns of any
such lessor, vendor, vendee, or other
person
When – at any time within 1 year after such
unlawful deprivation or withholding of
possession
Where – before the MTC
Sec. 2. Lessor to proceed against lessee
only after demand. — Unless otherwise
stipulated, such action by the lessor shall be
commenced only after demand to pay or
comply with the conditions of the lease AND to
vacate is made upon the lessee, or by serving
written notice of such demand upon the person
found on the premises, or by posting such
notice on the premises if no person be found
thereon, and the lessee fails to comply
therewith after fifteen (15) days in the case of
land or five (5) days in the case of buildings.
(2a)
Unless otherwise stipulated, an unlawful
detainer action by the lessor shall be
commenced only after
1. demand
a. to pay or comply with the conditions of
the lease and
b. to vacate
2. made either
a. upon the lessee, or
b. by serving written notice of upon the
person found on the premises, or
c. by posting such notice on the premises
if no person be found thereon
3. and the lessee fails to comply within
a. 15 days in the case of land or
b. 5 days in the case of buildings
Sec. 3. Summary procedure. — Except in
cases covered by the agricultural tenancy laws
or when the law otherwise expressly provides,
all actions for forcible entry and unlawful
detainer, irrespective of the amount of
damages or unpaid rentals sought to be
recovered, shall be governed by the summary
procedure hereunder provided. (n)
All ejectment actions, irrespective of the
amount of damages or unpaid rentals sought to
be recovered, shall be governed by the
summary procedure, except in cases
1. covered by the agricultural tenancy laws or
2. when the law otherwise expressly provides
Sec. 4. Pleadings allowed. — The only
pleadings allowed to be filed are the complaint,
compulsory counterclaim and cross-claim
pleaded in the answer, and the answers
thereto. All pleadings shall be verified. (3a,
RSP)
Pleadings allowed to be filed
1. complaint
2. compulsory counterclaim
3. answers
4. cross-claim pleaded in the answer
All pleadings shall be verified.
Sec. 5. Action on complaint. — The court
may, from an examination of the allegations in
the complaint and such evidence as may be
attached thereto, dismiss the case outright on
any of the grounds for the dismissal of a civil
action which are apparent therein. If no ground
for dismissal is found, it shall forthwith issue
summons. (n)
The court may, from an examination of the
allegations in the complaint and such evidence
as may be attached thereto
1. dismiss the case outright on any of the
grounds for the dismissal of a civil action
which are apparent therein, or
2. if no ground for dismissal is found, issue
summons
Sec. 6. Answer. — Within ten (10) days
from service of summons, the defendant shall
file his answer to the complaint and serve a
copy thereof on the plaintiff. Affirmative and
negative defenses not pleaded therein shall be
deemed waived, except lack of jurisdiction over
the subject matter. Cross-claims and
compulsory counterclaims not asserted in the
answer shall be considered barred. The answer
to counterclaims or cross-claims shall be served
and filed within ten (10) days from service of
the answer in which they are pleaded. (5, RSP)
Answer
1. Within 10 days from service of summons
2. served a copy on the plaintiff
3. defenses not pleaded are waived, except
lack of jurisdiction over the subject matter
4. Cross-claims and compulsory counterclaims
not asserted are barred.
5. The answer to counterclaims or cross-claims
shall be served and filed within 10 days
 from service of the answer in which they
are pleaded.
Sec. 7. Effect of failure to answer. —
Should the defendant fail to answer the
complaint within the period above provided, the
court, motu proprio or on motion of the
plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint
and limited to what is prayed for therein. The
court may in its discretion reduce the amount
of damages and attorney’s fees claimed for
being excessive or otherwise unconscionable,
without prejudice to the applicability of section
3 (c), Rule 9 if there are two or more
defendants. (6, RSP)
cf Rule 9, Sec. 3 (c)
(c) Effect of partial default.— When a
pleading asserting a claim states a
common cause of action against several
defending parties, some of whom answer
and the others fail to do so, the court
shall try the case against all upon the
answers thus filed and render judgment
upon the evidence presented. (4a, R18)
Effect of failure to answer
1. the court, motu proprio or on motion of the
plaintiff, shall render judgment
a. as may be warranted by the facts
alleged in the complaint and
b. limited to what is prayed for therein
2. The court may in its discretion reduce the
amount of damages and attorney’s fees
claimed for being excessive or otherwise
unconscionable
Sec. 8. Preliminary conference; appearance
of parties. — Not later than thirty (30) days
after the last answer is filed, a preliminary
conference shall be held. The provisions of Rule
18 on pre-trial shall be applicable to the
preliminary conference unless inconsistent with
the provisions of this Rule.
The failure of the plaintiff to appear in the
preliminary conference shall be cause for the
dismissal of his complaint. The defendant who
appears in the absence of the plaintiff shall be
entitled to judgment on his counterclaim in
accordance with the next preceding section. All
cross-claims shall be dismissed. (7, RSP)
If a sole defendant shall fail to appear, the
plaintiff shall likewise be entitled to judgment in
accordance with the next preceding section.
This procedure shall not apply where one of
two or more defendants sued under a common
cause of action who had pleaded a common
defense shall appear at the preliminary
conference.
No postponement of the preliminary
conference shall be granted except for highly
meritorious grounds and without prejudice to
such sanctions as the court in the exercise of
sound discretion may impose on the movant.
(n)
Within 30 days after the last answer is filed, a
preliminary conference shall be held.
Effect of failure to appear in the preliminary
conference by the
1. plaintiff – dismissal of his complaint;
appearing defendant entitled to judgment
on his counterclaim; all cross-claims shall be
dismissed.
2. sole defendant – plaintiff entitled to
judgment on his complaint
3. one of multiple defendants sued under a
common cause of action who had pleaded a
common defense – case continues
No postponement of the preliminary conference
shall be granted except for highly meritorious
grounds and without prejudice to such
sanctions as the court in the exercise of sound
discretion may impose on the movant.
Sec. 9. Record of preliminary conference. —
Within five (5) days after the termination of
the preliminary conference, the court shall issue
an order stating the matters taken up therein,
including but not limited to:
1. Whether the parties have arrived at
an amicable settlement, and if so,
the terms thereof;
2. The stipulations or admissions
entered into by the parties;
3. Whether, on the basis of the
pleadings and the stipulations and
admissions made by the parties,
judgment may be rendered without
the need of further proceedings, in
which event the judgment shall be
rendered within thirty (30) days from
issuance of the order;
4. A clear specification of material facts
which remain controverted; and
5. Such other matters intended to
expedite the disposition of the case.
(8, RSP)
Within 5 days after the termination of the
preliminary conference, the court shall issue an
order stating the matters taken up therein.
Sec. 10. Submission of affidavits and
position papers. — Within ten (10) days from
receipt of the order mentioned in the next
preceding section, the parties shall submit the
affidavits of their witnesses and other evidence
on the factual issues defined in the order,
together with their position papers setting
forth the law and the facts relied upon by
them. (9, RSP)
Within 10 days from receipt of the preliminary
conference order, the parties shall submit
1. the affidavits of their witnesses
2. other evidence on the factual issues defined
in the order
3. their position papers setting forth the law
and the facts relied upon by them.
Sec. 11. Period for rendition of judgment.
— Within thirty (30) days after receipt of the
affidavits and position papers, or the expiration
of the period for filing the same, the court
shall render judgment.
However, should the court find it necessary
to clarify certain material facts, it may, during
the said period, issue an order specifying the
matters to be clarified, and require the parties
to submit affidavits or other evidence on the
said matters within ten (10) days from receipt
of said order. Judgment shall be rendered
within fifteen (15) days after the receipt of
the last affidavit or the expiration of the period
for filing the same.
The court shall not resort to the foregoing
procedure just to gain time for the rendition of
the judgment. (n)
Within 30 days after receipt of the affidavits
and position papers, or the expiration of the
period for filing the same, the court shall
render judgment.
However, should the court find it necessary to
clarify certain material facts, it may, during the
said period, issue an order specifying the
matters to be clarified, and require the parties
to submit affidavits or other evidence on the
said matters within 10 days from receipt of
said order. Judgment shall be rendered within
15 days after the receipt of the last affidavit
or the expiration of the period for filing the
same.
The court shall not resort to the foregoing
procedure just to gain time for the rendition of
the judgment.
Sec. 12. Referral for conciliation. — Cases
requiring referral for conciliation, where there is
no showing of compliance with such
requirement, shall be dismissed without
prejudice, and may be revived only after that
requirement shall have been complied with.
(18a, RSP)
Where there was no KB proceedings when
required, the ejectment case shall be dismissed
without prejudice.
Sec. 13. Prohibited pleadings and motions.
— The following petitions, motions, or
pleadings shall not be allowed:
1. Motion to dismiss the complaint
except on the ground of lack of
jurisdiction over the subject matter,
or failure to comply with section
12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for
reconsideration of a judgment, or for
reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file
pleadings, affidavits or any other
paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
8. Motion to declare the defendant in
default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions. (19a, RSP)
Prohibited pleadings and motions
1. MTD
2. Motion for a bill of particulars;
3. MNT, or MfR, or motion for reopening of
trial;
4. Petition for relief from judgment;
5. Motion for extension
6. Memoranda;
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10.Reply;
11.3rd party complaints;
12.Interventions
GR: MtD not allowed Exception: On grounds
of
1. lack of jurisdiction over subject matter
2. failure to resort to required conciliation
proceedings
Sec. 14. Affidavits. — The affidavits
required to be submitted under this Rule shall
state only facts of direct personal knowledge
of the affiants which are admissible in
evidence, and shall show their competence to
testify to the matters stated therein.
A violation of this requirement may subject
the party or the counsel who submits the same
to disciplinary action, and shall be cause to
expunge the inadmissible affidavit or portion
thereof from the record. (20, RSP)
The affidavits required to be submitted under
this Rule shall
1. state only facts of direct personal
knowledge of the affiants which are
admissible in evidence, and
2. show their competence to testify to the
matters stated therein.
Sec. 15. Preliminary injunction. — The court
may grant preliminary injunction, in accordance
with the provisions of Rule 58 hereof, to
prevent the defendant from committing further
acts of dispossession against the plaintiff.
A possessor deprived of his possession
through forcible entry or unlawful detainer may,
within five (5) days from the filing of the
complaint, present a motion in the action for
forcible entry or unlawful detainer for the
issuance of a writ of preliminary mandatory
injunction to restore him in his possession. The
court shall decide the motion within thirty (30)
days from the filing thereof. (3a)
The court may grant preliminary injunction to
prevent the defendant from committing further
acts of dispossession against the plaintiff.
A possessor deprived of his possession through
forcible entry or unlawful detainer may, within
5 days from the filing of the complaint, ask for
preliminary mandatory injunction in the
ejectment action to restore him in his
possession. The court shall decide the motion
within 30 days from the filing thereof.
Note that the court may now grant preliminary
injunction in all ejectment cases.
Sec. 16. Resolving defense of ownership. —
When the defendant raises the defense of
ownership in his pleadings and the question of
possession cannot be resolved without deciding
the issue of ownership, the issue of ownership
shall be resolved only to determine the issue of
possession. (4a)
The MTC can determine ownership only
provisionally.
Sec. 17. Judgment. — If after trial the
court finds that the allegations of the
complaint are true, it shall render judgment in
favor of the plaintiff for the restitution of the
premises, the sum justly due as arrears of rent
or as reasonable compensation for the use and
occupation of the premises, attorney’s fees
and costs. If it finds that said allegations are
not true, it shall render judgment for the
defendant to recover his costs. If a
counterclaim is established, the court shall
render judgment for the sum found in arrears
from either party and award costs as justice
requires. (6a)
If after trial the court finds that the allegations
of the complaint are true, it shall render
judgment in favor of the plaintiff for
1. the restitution of the premises
2. the sum justly due as
a. arrears of rent or
b. reasonable compensation for the use and
occupation of the premises
3. attorney’s fees and costs
If it finds that said allegations are not true, it
shall render judgment for the defendant to
recover his costs.
If a counterclaim is established, the court shall
render judgment for the sum found in arrears
from either party and award costs as justice
requires.
Sec. 18. Judgment conclusive only on
possession; not conclusive in actions involving
title or ownership. — The judgment rendered in
an action for forcible entry or detainer shall be
conclusive with respect to the possession only
and shall in no wise bind the title or affect the
ownership of the land or building. Such
judgment shall not bar an action between the
same parties respecting title to the land or
building.
The judgment or final order shall be
appealable to the appropriate Regional Trial
Court which shall decide the same on the basis
of the entire record of the proceedings had in
the court of origin and such memoranda and/or
briefs as may be submitted by the parties or
required by the Regional Trial Court. (7a)
Sec. 19. Immediate execution of judgment;
how to stay same. — If judgment is rendered
against the defendant, execution shall issue
immediately upon motion, unless an appeal has
been perfected and the defendant to stay
execution files a sufficient supersedeas bond,
approved by the Municipal Trial Court and
executed in favor of the plaintiff to pay the
rents, damages, and costs accruing down to
the time of the judgment appealed from, and
unless, during the pendency of the appeal, he
deposits with the appellate court the amount
of rent due from time to time under the
contract, if any, as determined by the
judgment of the Municipal Trial Court. In the
absence of a contract, he shall deposit with
the Regional Trial Court the reasonable value of
the use and occupation of the premises for the
preceding month or period at the rate
determined by the judgment of the lower court
on or before the tenth day of each succeeding
month or period. The supersedeas bond shall
be transmitted by the Municipal Trial Court,
with the other papers, to the clerk of the
Regional Trial Court to which the action is
appealed.
All amounts so paid to the appellate court
shall be deposited with said court or authorized
government depositary bank, and shall be held
there until the final disposition of the appeal,
unless the court, by agreement of the
interested parties, or in the absence of
reasonable grounds of opposition to a motion
to withdraw, or for justifiable reasons, shall
decree otherwise. Should the defendant fail to
make the payments above prescribed from time
to time during the pendency of the appeal, the
appellate court, upon motion of the plaintiff,
and upon proof of such failure, shall order the
execution of the judgment appealed from with
respect to the restoration of possession, but
such execution shall not be a bar to the appeal
taking its course until the final disposition
thereof on the merits.
After the case is decided by the Regional
Trial Court, any money paid to the court by
the defendant for purposes of the stay of
execution shall be disposed of in accordance
with the provisions of the judgment of the
Regional Trial Court. In any case wherein it
appears that the defendant has been deprived
of the lawful possession of land or building
pending the appeal by virtue of the execution
of the judgment of the Municipal Trial Court,
damages for such deprivation of possession and
restoration of possession may be allowed the
defendant in the judgment of the Regional Trial
Court disposing of the appeal. (8a)
Requisites for stay execution (against
defendant) pending appeal
4. perfection of appeal
5. filing a supersedeas bond for payments of
accrued rents, damages and costs
6. deposit of accruing rent from time to time
Petition for review to the CA does not stay
execution, even if the petitioner files a
supersedeas bond. Note that Section 21 of
this Rule states that judgments of the RTC are
immediately executory.
If judgment is rendered granting ejectment,
execution shall issue immediately upon motion,
unless
1. an appeal has been perfected and
2. the defendant to stay execution files a
sufficient supersedeas bond
a. approved by the Municipal Trial Court
and
b. executed in favor of the plaintiff to pay
the rents, damages, and costs accruing
down to the time of the judgment
appealed from
c. The supersedeas bond shall be
transmitted by the MTC, with the other
papers, to the clerk of the RTC to which
the action is appealed.
3. and, during the pendency of the appeal, he
deposits with the appellate court the
amount of rent due from time to time
a. under the contract, if any, as
determined by the judgment of the MTC
b. In the absence of a contract, he shall
deposit with the RTC the reasonable
value of the use and occupation of the
premises for the preceding month or
period at the rate determined by the
judgment of the lower court on or
 before the 10th day of each succeeding
month or period.
c. All amounts so paid to the appellate
court shall be deposited with said court
or authorized government depositary
bank, and shall be held there until the
final disposition of the appeal, unless the
court shall decree otherwise
1) by agreement of the interested
parties, or
2) in the absence of reasonable grounds
of opposition to a motion to
withdraw, or
3) for justifiable reasons
d. Should the defendant fail to make the
payments above prescribed from time to
time during the pendency of the appeal,
the appellate court shall order the
execution of the judgment appealed
from with respect to the restoration of
possession (but such execution shall not
be a bar to the appeal taking its course
until the final disposition thereof on the
merits)
1) upon motion of the plaintiff, and
2) upon proof of such failure
e. After the case is decided by the RTC,
any money paid to the court by the
defendant for purposes of the stay of
execution shall be disposed of in
accordance with the provisions of the
judgment of the RTC.
f. In any case wherein it appears that the
defendant has been deprived of the
lawful possession of land or building
pending the appeal by virtue of the
execution of the judgment of the MTC,
damages for such deprivation of
possession and restoration of possession
may be allowed the defendant in the
judgment of the RTC disposing of the
appeal.
Sec. 20. Preliminary mandatory injunction in
case of appeal. — Upon motion of the plaintiff,
within ten (10) days from the perfection of
the appeal to the Regional Trial Court, the
latter may issue a writ of preliminary
mandatory injunction to restore the plaintiff in
possession if the court is satisfied that the
defendant’s appeal is frivolous or dilatory, or
that the appeal of the plaintiff is prima facie
meritorious. (9a)
Grounds for restoration by the RTC of
possession to the plaintiff pending appeal
before the RTC
1. defendant’s appeal is frivolous or dilatory,
or
2. appeal of the plaintiff is prima facie
meritorious.
Sec. 21. Immediate execution on appeal to
Court of Appeals or Supreme Court. — The
judgment of the Regional Trial Court against
the defendant shall be immediately executory,
without prejudice to a further appeal that may
be taken therefrom. (10a)
The judgment of the RTC against the
defendant shall be immediately executory even
pending appeal.
Note: I think this is still subject to the power
of the appellate court to order stay of
execution.
c. Cases
Francel Realty v. CA, 252 SCRA
127 (1996)
If resolution of an unlawful detainer case
requires determination of rights and obligations
under of parties in a sale of real estate under
PD 957, the case is exclusively cognizable by
the HLURB, not the MTC.
Javier v. Veridiano II, 237 SCRA
565 (1994)
Ejectment has a different cause of action from
accion reivindicatoria (recovery of land), or
even quieting of title. Judgment in an
ejectment case does not bar a subsequent
action for recovery of land, or an action for
quieting of title.
Baens v. CA, 125 SCRA 634
(1983)
Damages that may be awarded in ejectment
cases are for rents and reasonable
compensation for the use and occupation of
the property. It does not include unrealized or
foregone profits, moral or exemplary damages.
Note: So how does the plaintiff recover
foregone profits, moral and exemplary
damages?
Azcuna Jr. v. CA, 255 SCRA 215
(1996)
Facts: Azcuna leased from Barcelona 3 units in
a building. The lease contract provided for
liquidated damages of P1,000 for every day
that Azcuna fails to turn over the property
upon expiration of the lease. Azcuna refuses to
vacate upon termination of the lease. Barcelona
wins in an ejectment case, but Azcuna objects
to the award of damages outside rentals.
Held: A provision for liquidated damages,
outside compensation for use of the property,
in the lease contract is valid and may be
enforced in an ejectment proceedings.
Note: Note that the court did not discuss the
issue of whether the amount of liquidated
damages should be within the jurisdiction of
the MTC. I think the amount is irrelevant,
because the liquidated damages are in the
nature of a pre-arranged value of reasonable
compensation for use of the leased property
beyond the authorized period. It can therefore
be awarded by the MTC, regardless of amount.
Note: The doctrine in Progressive Development
Corporation v. CA, 301 SCRA 637 (1999) is
wrong. There is no splitting the cause of action
if the claim for damages is beyond the
jurisdiction of the MTC in the ejectment case.
Note: Therefore, if damages other than
reasonable compensation for use of property
are claimed, it must be in an amount within the
jurisdiction of the MTC. Otherwise, the
claimant must file a separate action, or he
must. He can not waive the excess because
this principle applies only to compulsory
counterclaims, not to original claims.
Penas, Jr. v. CA, 233 SCRA 744
(1994)
Facts: Lessors sent letter on January 1990
asking lessee to agree to increased rentals or
to vacate upon expiration of the original lease.
Lessee refused, but continued occupying the
property beyond the lease period. Lessor sends
letter on August 1992 demanding that lessee
vacate. Lessee refused, so lessor filed unlawful
detainer case 2 months later. Lessee asserts
lessor’s action was filed beyond the 1 year
period prescribed by law.
Held: 1 year period to file complaint for
unlawful detainer should be counted from the
last demand letter to vacate. Ejectment action
has not yet prescribed.
Furthermore, an alternative in the letter “to
pay the increased rental OR vacate” is not the
demand contemplated by the rules. It should
be “pay AND vacate” not “pay OR vacate”.
Lim Kieh Tong v. CA, 195 SCRA
398 (1991)
Facts: Building owner changes locks of the
main door, but refusing to give new keys to
the lessees. Lessee files an ejectment case
with the MTC. Lessor claims the action should
be for specific performance and hence should
be filed with the RTC.
Held: The MTC has jurisdiction. The building
owner deprived the occupant of possession
through stealth. The remedy is therefore
forcible entry. Forcible entry is available to a
lessee or tenant even against his landlord.
Clutario v. CA, 216 SCRA 341
(1992)
Acceptance of back rentals after written
demand to vacate having been made, and
pending the ejectment case, is not a waiver of
the ground for ejectment for non-payment of
rentals.
Cursino v. Bautista, 176 SCRA 65
(1989)
Acceptance of back rentals after written
demand to vacate having been made, but
before the ejectment case is even filed, is not
a waiver of the ground for ejectment for non-
payment of rentals.
Note: Note that in Clutario, acceptance of back
rentals was pending the ejectment case. In
Cursino, acceptance of back rentals was even
before the ejectment case was filed. In both
cases, a written demand to vacate had already
been served. Therefore, if written demand to
pay and to vacate has already been made,
subsequent acceptance of back rentals,
whether before or pending ejectment action,
does not waive the ground for ejectment.
Acab v. CA, 241 SCRA 546
(1995) #112285 21Feb95
Lease agreements with no specific period are
deemed for the period in which the rents are
regularly paid. The lease is therefore for a
definite period. The lease expired at the end of
the month and therefore there was a ground
to demand that the lessee vacate at the end
of the month. In case of refusal, there is
ground for an ejectment action.
German Management v. CA, 177
SCRA 495 (1989) #76216
14Sep89
A mere prior possessor, regardless of the
nature of his possession (de Leon: even
squatters?!), can maintain a forcible entry
action even against the owner if his peaceful
possession is disturbed. A prior possessor may
be ejected only by an ejection action. The
owner can not resort to the doctrine of self-
help if he is not in possession and in danger of
losing it.
Note: The remedy of the owner is to file a
separate action for recovery of land in which
he can invoke his ownership.
Bandoy v. CA, 175 SCRA 459
(1989)
Where the ejectment complaint does not allege
that prior demand to vacate was made, the
courts never acquired jurisdiction. Certification
by the barangay captain is not conclusive as to
such prior demand, only that there was no
settlement reached.
Note: If the demand is to pay back rentals
only, there is no cause of action for ejectment,
only a cause of action for collection of back
rentals. In such a case, the amount of back
rentals demanded is relevant in determining
jurisdiction because the action is now a simple
collection case. Rule 70 Sec. 2 requires demand
to both pay back rentals and to vacate for a
cause of action in an ejectment case to arise.
Sec. 2. Lessor to proceed against lessee
only after demand. — Unless otherwise
stipulated, such action by the lessor
shall be commenced only after demand
to pay or comply with the conditions of
the lease and to vacate is made upon
the lessee, xxx. (2a)
Hence, if there was prior demand to vacate
and pay back rentals, the MTC has exclusive
jurisdiction over the ejectment case regardless
of the amount of incidental back rentals.
Peran v. Presiding Judge, 125
SCRA 78 (1983) L-57259
13Oct83
Possession by tolerance becomes illegal when
the possessor refuses to comply with demand
to vacate. Prior physical possession by the
ejectment plaintiff is not necessary.
Once v. Gonzales, 76 SCRA 258
(1977) L-44806 31Mar77
Supersedeas bond by the ejectment defendant
is not required where no back rentals were
adjudged. In such a case, timely deposit of
accruing rentals is enough to stay the
execution pending appeal.
Pharma Industries Inc v.
Pajarillaga, 100SCRA339(1980)
L-53788 17Oct80
In unlawful detainer, prior possession of the
plaintiff is not a requisite.
Racaza v. Susana Realty, 18 SCRA
1172 (1966)
When the action is to terminate the lease
because of expiration of the term, prior
demand to vacate is not necessary. Demand is
only indicative of intention not to extend the
lease. It is required only if there was failure to
pay rent, or to comply with the conditions of
the lease. After expiration of the lease, the
lessor may regain possession of the property.
Refusal of the lessee to vacate allows the
lessor to file for unlawful detainer even before
expiration of the 15 or 5 day period.
San Manuel v. Tupas, 249 SCRA
466 (1995) AM MTJ-93-892
25Oct95
“A good reason” (as required in execution
pending appeal in ordinary cases) is not
necessary for execution pending appeal in
ejectment cases because it is expressly made
immediately executory by the Rules. Failure of
an appealing ejectment defendant to make a
periodic deposit of rentals pending appeal
results in execution pending appeal.
Vda. de Ampil v. Alvendia, 10
SCRA 828 (1964)
Facts: MTC grants ejectment and orders
defendant to pay accruing rents within the first
5 days of each month if he wants to stay
execution pending appeal. Defendant appeals
and pays accruing rents within the first 10
days of each month, but outside the first 5
days. Plaintiff moves for execution pending
appeal.
Held: Decision calling for payment of rentals
until defendant vacates is not controlling
because there is no pronouncement that the
contract calls for such payment. Only payment
within the first 10 days of the month is
sanctioned by the rules.
de Leon: Note that if the MTC orders monthly
payment less than the first 10 days of the
month, the appellant need not comply with
such period, but he still must pay within the
first 10 days of the month.
 City of Manila v. CA, 149 SCRA separate action for annulment of title of the
183 (1987) prevailing ejectment plaintiff.
Even if the plaintiff appeals a judgment
ordering ejectment on the ground that rentals 10.Contempt
awarded were not enough, the judgment is still
executory pending appeal. If the lessee desires DIRECT CONTEMPT INDIRECT CONTEMPT
to prevent execution pending appeal, he must
file a supersedeas bond and deposit in court Not need to have M u s t h a v e f o r m a l
the accruing rentals. written charge written charge or
verified complaint
Buenaventura v. Halili-Uy, 149
SCRA 22 (1987) Summary judgment Hearing is mandatory

Facts: Lessor allows lessee to occupy area in
excess of the lease until lessor needs it.
Lessee refused to vacate on demand. Lessor
files case for unlawful detainer and forcible
entry.
Held: The suit should be for unlawful detainer.
The lessee’s possession of the excess area was
lawful until demand to vacate was ignored.
Distinction between forcible entry and unlawful
detainer:
(1) As to possession:
in forcible entry, the possession of the
intruder or person who deprives another of
the possession of a land or building is illegal
from the beginning because his entry into
or taking possession thereof is made
against the will or without the consent of
the former possessor;
while in unlawful detainer, the possession of
the detainer is originally legal or lawful, but
it becomes illegal after the expiration or
termination of his right to hold possession
of the land or building by virtue of a
contract;
(2) As to demand to vacate:
in forcible entry, no previous demand to
vacate is required by law before the filing
of the action;
while in an action for unlawful detainer by a
landlord against his tenant, such demand is
required.
Allegation of prior possession is not required in
unlawful detainer, while such allegation is
required in forcible entry.
San Pedro v. CA, 235 SCRA 145
(1994)
Failure of the defendant to make periodic
deposits pending appeal results in execution
pending appeal. Execution of an ejectment case
pending appeal is not stayed by a pending
Not appealable; only Appealable by notice
remedy is special civil of appeal
action for certiorari
or prohibition
Punished up to P2,000 Punished up to
fine and/or 10 day P30,000 fine and/or 6
imprisonment if months imprisonment
committed against if committed against
superior courts; P200 superior courts;
and/or 1 day if P5,000 and/or 1
committed against month if committed
lower courts against lower courts
a. Rule 71
General Procedure in Contempt
Section 1. Direct contempt punished
summarily. — A person guilty of misbehavior in
the presence of or so near a court as to
obstruct or interrupt the proceedings before
the same, including disrespect toward the
court, offensive personalities toward others, or
refusal to be sworn or to answer as a witness,
or to subscribe an affidavit or deposition when
lawfully required to do so, may be summarily
adjudged in contempt by such court and
punished by a fine not exceeding two thousand
pesos or imprisonment not exceeding ten (10)
days, or both, if it be a Regional Trial Court or
a court of equivalent or higher rank, or by a
fine not exceeding two hundred pesos or
imprisonment not exceeding one (1) day, or
both, if it be a lower court. (1a)
Direct Contempt
– misbehavior in the presence of or so near a
court as to obstruct or interrupt the
proceedings before the same including
3. disrespect toward the court
4. offensive personalities toward others, or
5. refusal to be sworn or to answer as a
witness
6. refusal to subscribe an affidavit or
deposition when lawfully required to do so
Direct contempt may be summarily adjudged
and punished by
1. a f i n e n o t e x c e e d i n g P 2 , 0 0 0 o r
imprisonment not exceeding 10 days, or
both – if it be a RTC or a court of
equivalent or higher rank
2. a fine not exceeding P200 or imprisonment
not exceeding 1 day, or both - if it be a
lower court. (1a)
Sec. 2. Remedy therefrom. — The person
adjudged in direct contempt by any court may
not appeal therefrom, but may avail himself of
the remedies of certiorari or prohibition. The
execution of the judgment shall be suspended
pending resolution of such petition, provided
such person files a bond fixed by the court
which rendered the judgment and conditioned
that he will abide by and perform the judgment
should the petition be decided against him.
(2a)
The person adjudged in direct contempt by any
court
1. may not appeal therefrom
2. may avail himself of the remedies of
certiorari or prohibition (observe rule on
hierarchy of courts)
3. The execution of the judgment shall be
suspended pending petition for certiorari or
prohibition, provided such person files a
bond
a. fixed by the court which rendered the
judgment and
b. conditioned that he will abide by and
perform the judgment should the
petition be decided against him
Note: Note that a conviction for direct
contempt is an exception to the general rule
that special civil action for certiorari does not
stay execution.
Sec. 3. Indirect contempt to be punished
after charge and hearing. — After a charge in
writing has been filed, and an opportunity given
to the respondent to comment thereon within
such period as may be fixed by the court and
to be heard by himself or counsel, a person
guilty of any of the following acts may be
punished for indirect contempt:
(a) Misbehavior of an officer of a court in
the performance of his official duties or
in his official transactions;
(b) Disobedience of or resistance to a
lawful writ, process, order, or judgment
of a court, including the act of a person
who, after being dispossessed or
ejected from any real property by the
judgment or process of any court of
competent jurisdiction, enters or
attempts or induces another to enter
into or upon such real property, for the
purpose of executing acts of ownership
or possession, or in any manner disturbs
the possession given to the person
adjudged to be entitled thereto;
(c) Any abuse of or any unlawful
interference with the processes or
proceedings of a court not constituting
direct contempt under section 1 of this
Rule;
(d) Any improper conduct tending, directly
or indirectly, to impede, obstruct, or
degrade the administration of justice;
(e) Assuming to be an attorney or an
officer of a court, and acting as such
without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process
of a court held by him.
But nothing in this section shall be so
construed as to prevent the court from issuing
process to bring the respondent into court, or
from holding him in custody pending such
proceedings. (3a)
Note that in indirect contempt, a written
charge must be filed, and a hearing conducted.
But the court may order the arrest of the
respondent and to detain him pending the
contempt proceedings.
Instances of Indirect contempt
1. Misbehavior of an officer of a court in the
performance of his official duties or in his
official transactions;
2. Disobedience of or resistance to a lawful
writ, process, order, or judgment of a court
3. abuse of or any unlawful interference with
the processes or proceedings of a court not
constituting direct contempt
4. improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade
the administration of justice
5. assuming to be an attorney or an officer of
a court, and acting as such without
authority;
6. failure to obey a subpoena duly served;
7. the rescue, or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process of a
court held by him.
Note that a losing party in an ejectment case
does not commit contempt by mere refusal to
leave the premises. But if such party had been
dispossessed pursuant to a court order, but
subsequently disturbs the possession of the
prevailing party, he now commits contempt.
cf Rule 39, Sec. 10 (c)
Sec. 10. Execution of judgments for
specific act. —
(c) Delivery or restitution of real
property. — The officer shall demand of
the person against whom the judgment
for the delivery or restitution of real
property is rendered and all person
claiming rights under him to peaceably
vacate the property within three (3)
working days, and restore possession
thereof to the judgment obligee;
otherwise, the officer shall oust and
such persons therefrom with the
assistance, if necessary of appropriate
peace officers, and employing such
means as may be reasonably necessary
to retake possession, and place the
judgment obligee in possession of such
property. Any costs, damages, rents or
profits awarded by the judgment shall be
satisfied in the same manner as a
judgment for money. (13a)
Sec. 4. How proceedings commenced. —
Proceedings for indirect contempt may be
initiated motu proprio by the court against
which the contempt was committed by an
order or any other formal charge requiring the
respondent to show cause why he should not
be punished for contempt.
In all other cases, charges for indirect
contempt shall be commenced by a verified
petition with supporting particulars and certified
true copies of documents or papers involved
therein, and upon full compliance with the
requirements for filing initiatory pleadings for
civil actions in the court concerned. If the
contempt charges arose out of or are related
to a principal action pending in the court, the
petition for contempt shall allege that fact but
said petition shall be docketed, heard and
decided separately, unless the court in its
discretion orders the consolidation of the
contempt charge and the principal action for
joint hearing and decision. (n)
Proceedings for indirect contempt
1. initiated by
a. the court against which the contempt
was committed motu proprio – by an
order or any other formal charge
requiring the respondent to show cause
why he should not be punished for
contempt.
b. verified petition
1) with supporting particulars and
certified true copies of documents or
papers involved therein, and
2) upon full compliance with the
requirements for filing initiatory
pleadings for civil actions in the court
concerned.
3) Allegation that the contempt charges
arose out of or are related to a
principal action pending in the court
2. an opportunity given to the respondent to
a. comment thereon within such period as
may be fixed by the court and
b. be heard by himself or counsel
3. petition shall be docketed, heard and
decided separately, unless the court in its
discretion orders the consolidation of the
contempt charge and the principal action
for joint hearing and decision.
4. the court can issue process to bring the
respondent into court, or hold him in
custody pending the indirect contempt
proceedings
SEC. 5. Where charge to be filed. - Where
the charge for indirect contempt has been
committed against a Regional Trial Court or a
court of equivalent or higher rank, or against
an officer appointed by it, the charge may be
filed with such court. Where such contempt has
been committed against a lower court, the
charge may be filed with the Regional Trial
Court of the place in which the lower court is
sitting; but the proceedings may also be
instituted in such lower court subject to appeal
to the Regional Trial Court of such place in the
same manner as provided in section 11 of this
Rule. (4a)
Where charge to be filed – if committed
against
1. a RTC or a higher court, or against an
officer appointed by it – the charge may be
filed with such court.
2. a lower court – the charge may be filed
with
a. such lower court subject to appeal to
the RTC
b. the RTC of the place in which the lower
court is sitting
Sec. 6. Hearing; release on bail. — If the
hearing is not ordered to be had forthwith, the
respondent may be released from custody upon
filing a bond, in an amount fixed by the court,
for his appearance at the hearing of the
charge. On the day set therefor, the court shall
proceed to investigate the charge and consider
such comment, testimony or defense as the
respondent may make or offer. (5a)
If the hearing is not ordered to be had
forthwith, the respondent may be released
from custody upon filing a bond
1. in an amount fixed by the court
2. for his appearance at the hearing of the
charge
The court shall proceed to investigate the
charge and consider such comment, testimony
or defense as the respondent may make or
offer.
Sec. 7. Punishment for indirect contempt.
— If the respondent is adjudged guilty of
indirect contempt committed against a Regional
Trial Court or a court of equivalent or higher
rank, he may be punished by a fine not
exceeding thirty thousand pesos or
imprisonment not exceeding six (6) months, or
both. If he is adjudged guilty of contempt
committed against a lower court, he may be
punished by a fine not exceeding five thousand
pesos or imprisonment not exceeding one (1)
month, or both. If the contempt consists in the
violation of a writ of injunction, temporary
restraining order or status quo order, he may
also be ordered to make complete restitution
to the party injured by such violation of the
property involved or such amount as may be
alleged and proved.
The writ of execution, as in ordinary civil
actions, shall issue for the enforcement of a
judgment imposing a fine unless the court
otherwise provides. (6a)
Sec. 8. Imprisonment until order obeyed. —
When the contempt consists in the refusal or
omission to do an act which is yet in the
power of the respondent to perform, he may
be imprisoned by order of the court concerned
until he performs it. (7a)
Punishment for indirect contempt
1. committed against a RTC or a court of
equivalent or higher rank – a fine not
exceeding P30,000 or imprisonment not
exceeding 6 months, or both
2. committed against a lower court – a fine
not exceeding P5,000 or imprisonment not
exceeding 1 month, or both.
3. consisting of violation of a writ of
injunction, TRO or status quo order –
complete restitution to the party injured
4. refusal or omission to do an act which is
yet in the power of the respondent to
perform – imprisonment until he performs it
The writ of execution, as in ordinary civil
actions, shall issue for the enforcement of a
judgment imposing a fine unless the court
otherwise provides.
Sec. 9. Proceeding when party released on
bail fails to answer. — When a respondent
released on bail fails to appear on the day
fixed for the hearing, the court may issue
another order of arrest or may order the bond
for his appearance to be forfeited and
confiscated, or both; and, if the bond be
proceeded against, the measure of damages
shall be the extent of the loss or injury
sustained by the aggrieved party by reason of
the misconduct for which the contempt charge
was prosecuted, with the costs of the
proceedings, and such recovery shall be for the
benefit of the party injured. If there is no
aggrieved party, the bond shall be liable and
disposed of as in criminal cases. (8a)
When a respondent released on bail fails to
appear on the day fixed for the hearing, the
court may
1. issue another order of arrest and/or
2. may order the bond for his appearance to
be forfeited and confiscated
a. the measure of damages shall be the
extent of the loss or injury sustained by
the aggrieved party by reason of the
misconduct for which the contempt
charge was prosecuted, with the costs
of the proceedings, and such recovery
 shall be for the benefit of the party
injured.
b. If there is no aggrieved party, the bond
shall be liable and disposed of as in
criminal cases.
Sec. 10. Court may release respondent. —
The court which issued the order imprisoning a
person for contempt may discharge him from
imprisonment when it appears that public
interest will not be prejudiced by his release.
(9a)
The court which issued the order imprisoning a
person for contempt may discharge him from
imprisonment when it appears that public
interest will not be prejudiced by his release.
Sec. 11. Review of judgment or final order;
bond for stay. — The judgment or final order
of a court in a case of indirect contempt may
be appealed to the proper court as in criminal
cases. But execution of the judgment or final
order shall not be suspended until a bond is
filed by the person adjudged in contempt, in an
amount fixed by the court from which the
appeal is taken, conditioned that if the appeal
be decided against him he will abide by and
perform the judgment or final order. (10a)
The judgment or final order of a court in a
case of indirect contempt
1. may be appealed to the proper court as in
criminal cases.
2. execution pending appeal shall not be
suspended until a bond is filed by the
person adjudged in contempt
a. in an amount fixed by the court from
which the appeal is taken
b. conditioned that if the appeal be
decided against him he will abide by and
perform the judgment or final order
Note that in both direct and indirect
contempts, execution pending appeal is stayed
only by posting a bond even if the modes of
appeal are different.
Sec.12. Contempt against quasi-judicial
entities. — Unless otherwise provided by law,
this Rule shall apply to contempt committed
against persons, entities, bodies or agencies
exercising quasi-judicial functions, or shall have
suppletory effect to such rules as they may
have adopted pursuant to authority granted to
them by law to punish for contempt. The
Regional Trial Court of the place wherein the
contempt has been committed shall have
jurisdiction over such charges as may be filed
therefor. (n)
RTC has jurisdiction over contempt committed
against quasi-judicial entities.
NOTE: The power to punish contempt should
be exercised on the preservative and not on
the vindictive principle with the corrective
rather than the retaliatory idea of punishment.
b. Cases
Ang v. Castro, 136 SCRA 453
(1985)
FACTS: Petitioner Ang lodged with SC an
administrative complaint against respondent
judge Castro for ignorance of the law, gross
inexcusable negligence, incompetence, manifest
partiality, grave abuse of discretion, grave
misconduct, rendering unjust decision in Civil
Case No. Q-35466 and dereliction of duties in
not resolving his motion for reconsideration of
the adverse decision in said civil case.
Upon learning of the administrative case filed
against him by Ang, Judge Castro ordered Ang
to appear before him and to show cause why
he should not be punished for contempt of
court, for malicious, insolent, inexcusable
disrespect and contemptuous attitude towards
the court and towards him.
Judge Castro found Ang guilty of contempt of
court, sentenced him to suffer five (5) days
imprisonment and ordered his arrest for his
failure, despite notice, to appear on the
scheduled hearing of the contempt charge
against him.
Ang filed his notice of appeal from the
judgment of conviction in the contempt charge
but the same was denied by the respondent
judge.
Thereafter, respondent judge instituted before
the Office of the City Fiscal of Quezon City a
criminal complaint (I.S. No. 83-221983 for libel
against herein petitioner for using malicious,
insolent and contemptuous language against
him in his letter-complaint filed before this
Court.
HELD: The use of disrespectful or
contemptuous language against a particular
judge in pleadings presented in another court
or proceeding is indirect, not direct, contempt
as it is not tantamount to a misbehavior in the
presence of or so near a court or judge as to
interrupt the administration of justice. Stated
differently, if the pleading containing
derogatory, offensive or malicious statements is
submitted in the same court or judge in which
the proceedings are pending, it is direct
contempt.
People v. Torio, 118 SCRA 17
(1982)
FACTS: Appellant Torio was the attorney of
record for the accused Jose Vinluan. Upon
agreement of the parties the continuation of
the hearing of said case was set for 2pm
28Jul66, and the appellant signed the
notification in open court. Because the Lower
Court held a pre-trial conference of civil case
also assigned on said date, said criminal case
was later called at 2:30pm.
When the case was called for hearing the
presiding judge noticed that the accused
Vinluan, although present, was not represented
by counsel. Vinluan was asked by the Court to
look for his lawyer, who was not yet present in
court, and so he called Torio by telephone in
his residence but there was no answer. In view
of the failure of Torio, as counsel for Vinluan,
to appear for the hearing at 2:30pm, the
Lower Court ordered the continuation of the
trial of said case to 9am 04Aug66.
However, at 2:45pm or 15mins later, the Torio
arrived and the Court ordered the resumption
of the trial. Torio appeared for accused Jose
Vinluan and announced that he was ready for
the hearing. At this juncture, the presiding
judge, asked Torio why he was not present
when the case was called for hearing at
2:30pm in spite of the fact that it was
scheduled at 2pm to which he answered that
he had car problems. The judge considered
the explanation as `not satisfactory' and right
then and there imposed a fine of P50.00 upon
Torio, without any charge in writing nor an
opportunity given to be heard by himself or
counsel, held him in contempt of court, and
further ordered him to pay the fine within 24
hours.
The hearing of the criminal case proceeded
with the appellant assisting his client, until the
final termination of the trial.
HELD: Failure to appear in court is not direct
contempt. It may however constitute indirect
contempt.
Cabilan v. Ramolete, 192 SCRA
674 (1990)
Even a pleading submitted to the court may
contain derogatory or malicious statements
which constitute direct contempt against such
court. It amounts to misbehaviour committed in
the presence of or so near a court or judge as
to interrupt the administration of justice. Direct
contempt may be punished summarily, without
hearing.
Pascua v. Heirs of Simeon, 161
SCRA 1 (1988)
FACTS: Judgment was rendered in favor of
respondents and against the defendants therein
ordering the latter to pay P19,720.00. The
defendants appealed to the CA but for failure
of their counsel to submit the brief within the
reglementary period, the appeal was dismissed
and the case was remanded to the trial court
for execution of judgment.
To satisfy the judgment, twenty (20) parcels
of land were levied upon and then sold at
public auction in which the highest bidders
were the respondents. As the judgment
debtors failed to redeem the properties within
the twelve-month period, the Provincial Sheriff
of Tarlac issued a Certificate of Absolute Sale.
On motion, Judge Alzate ordered the issuance
of a writ of possession. However, the
defendants/judgment debtors would not vacate
the premises. So respondents filed a motion
before the trial court to declare the defendants
in contempt of court. CFI Judge Alzate held
defendants guilty of indirect contempt.
HELD: Mere refusal of a litigant to vacate the
property subject of a writ of possession does
not constitute contempt. The writ is directed
to the sheriff, not the parties. The remedy is
for the sheriff to dispossess them of the
premises and deliver possession to the winning
party. However, if after being dispossessed, the
party re-enters the property for the purpose of
executing acts of ownership or possession, he
may then be charged for contempt.
Santiago v. Anunciacion, Jr., 184
SCRA 118 (1990)
Facts: Santiago was the counsel for the
accused in a kidnapping case. The alleged
kidnapping victim, Amylie, subsequently claimed
that she was not kidnapped but was in fact
the lover of the accused. On the day Amylie
was supposed to testify that she was not
kidnapped, a warrant of arrest was served on
her in connection for a case of disobedience
filed by her own mother. Upon Santiago’s
request, Amylie was arrested only after she
had testified. A case for indirect contempt was
filed against Santiago in the court hearing the
disobedience case. On the date of hearing, a
private prosecutor entered his appearance.
Santiago objects.
Held: A contempt charge partakes the nature
of a penal proceeding. Being so, it is subject to
the rules on criminal procedure and the rules
on the intervention of the offended party in
criminal actions. The rule is that unless the
offended party has waived the civil action or
expressly reserved the right to institute it
separately from the criminal action, he may
intervene by counsel in the prosecution of the
offense. The intervention of the offended
party is subject to the direction and control of
the fiscal, and for the sole purpose of
enforcing the civil liability of the accused, and
as we have held, "not of demanding
punishment of the accused."
In the case at bar, there is no justification for
the prosecution of the case by a private
prosecutor. In this instance, the kind of
contempt (indirect) for which the petitioner is
sought to be held liable provides for no
indemnity because the alleged "obstruction"
committed was an offense against the State,
the respondent court in particular, which
involves no private party.
Note: I think this case is illustrative of the
distinction between civil (to enforce rights of
litigants) and criminal (to vindicate court
authority) contempt. The capacity of a private
prosecutor to intervene in contempt
proceedings is similar to that in criminal cases.
If there is a private offended party, i.e. civil
contempt, a private prosecutor may intervene.
If there is no private offended party (criminal
contempt), a private prosecutor may not
intervene. The contempt that Santiago was
alleged to have committed is criminal contempt
because he was alleged to have interfered with
court processes.
Barrete v. Amila, 230 SCRA 219
(1994)
FACTS: The instant complaint originated from
the decision rendered by respondent Judge
Amila in Civil Case No. 313, in favor of plaintiff
Juanita Bungabong, which ordered defendant
Rosita Barrete, herein complainant, to vacate
the house owned by plaintiff which was
occupied by complainant.
A writ of execution was subsequently issued by
respondent Judge. However, pursuant to
Barrete's request, the Sheriff gave her until the
end of the month to vacate the subject
premises. 6mos thereafter, Barrete had not
vacated; hence, an alias writ of execution was
issued. Again, Barrete was given an extension
of 2days to pack up and leave. Sheriff went
back to the premises and although he did not
find Barrete there, it was clear that she had
not vacated because her furniture and other
belongings were still in the house. Upon inquiry,
the Sheriff learned that Barrete had gone to
Tacloban City and was due to return anytime.
The Sheriff then put a padlock on the door of
Barrete’s house.
Plaintiff Bungabong's counsel filed a motion to
declare Barrete in Contempt of Court.
Respondent Judge ordered for the arrest of
Barrete. Barrete was arrested in her house on
25Jul92, a Saturday. A motion to quash the
order of arrest and to release Barrete was
filed, but Barrete and her 3 children remained
in detention until 28Jul92, a Tuesday (the
Judge being absent from office Monday,
27Jul92) after she had been brought before
respondent Judge and had promised that she
would vacate the house and lot she had been
occupying.
In her administrative complaint, Barrete alleged
that she had requested the Sheriff to give her
up to the end of July to pack her things and
look for a new place, for her and her 3
children, to stay in.
Barrete then left for Tagbilaran City.
Meanwhile, on 08Jul92, the Sheriff locked up
the subject house with Barrete's things still in
it.
Upon her return, Barrete entered said house by
passing through two (2) wooden jalousie
blades, to continue packing her things.
It was in the early morning of 25Jul92 that
Barrete was arrested in the subject house and
with her three (3) minor children, was detained
at the Municipal Jail of Batuan, Bohol, until
28Jul92.
Barrete avers that her arrest and detention
without according her a day in court
constituted a flagrant violation of her right to
due process.
Respondent Judge alleges that after the motion
to declare Barrete in contempt was filed, he
conducted an ocular inspection of the subject
house on 23Jul92, only to find out that
Barrete had indeed not vacated the same. For
Barrete's disobedience, he issued an Order for
her arrest. However, respondent Judge ordered
her release right after complainant promised to
vacate the premises.

Respondent Judge argues that Barrete's acts

constituted direct contempt and the order for
her arrest was made to save Juanita
Bungabong from further irreparable harm and
to protect the image of the Court from
degradation. Judge Amila further maintains
that if Barrete were charged with indirect
contempt, she would have been imprisoned for
not more than one (1) month, which would be
more burdensome on her. Therefore, his
questioned order was beneficial to plaintiff
Bungabong and herein complaint Barrete.

HELD: The mere refusal or unwillingness on the

part of the losing party in an ejectment case
to vacate the property did not constitute
contempt. The writ of possession was directed
not to the losing party, but to the Sheriff, who
was to deliver the properties to the prevailing
party. As the writ did not command the losing
party to do anything, the losing party could
not be held guilty of disobedience of or
resistance to a lawful writ, process, order,
judgment or command of a court. Moreover,
the losing party could not be punished for
contempt for “disobedience of or resistance to
the judgment of the trial court” because said
judgment was not a special judgment. When
the judgment requires the delivery of real
property, any contempt proceeding arising
therefrom must be based on “act of a person
who, after being dispossessed or ejected from
any real property by the judgment or process
of any court of competent jurisdiction, enters
or attempts or induces another to enter into or
upon such real property, for the purpose of
executing acts of ownership or possession, or
in any manner disturbs the possession given to
the person adjudged to be entitled thereto”
and not on "the disobedience of or resistance
to a lawful writ, process, order, judgment, or
command of a court, or injunction granted by a
court or judge."