1|Page NOTES IN CIVIL PROCEDURE II Bem Jamison

PROVISIONAL REMEDIES IN CRIMINAL CASES

PROVISIONAL REMEDIES When the civil action is properly instituted in the
- Are temporary, auxiliary, and ancillary remedies criminal action, the property of the accused may be
available to a litigant while the main action is attached in the following cases:
pending or until a final disposition of the matter a. When the accused is about to abscond from
in litigation is made. the Philippines;
- Dependent for their application upon the b. When the criminal action is based on a clam
existence of a principal action. for money or property embezzled or
- They are provisional (they constitute temporary fraudulently misapplied or converted for
measures availed of during the pendency of the the use of the accused who is a public
main action) and ancillary (they are merely officer, officer of a corporation, attorney,
incidents and are dependent upon the result of factor, broker, agent or clerk, in the course
the main action. of his employment as such or by any other
- Note: When the main action is dismissed, the person in a fiduciary capacity, or for a wilful
provisional remedy is also dissolved. violation of duty;
c. When the accused has concealed, removed,
PURPOSE OF PROVISIONAL REMEDIES or disposed of his property, or is about to
a. To preserve or protect their rights or do so; and
interests while the main action is pending d. When the accused resides outside og the
b. To secure the judgment Philippines;
c. To preserve the status quo
d. To preserve the subject matter of the action PRELIMINARY ATTACHMENT
Provisional (RULE 57)
Example Main Action
Remedy
To prevent Action for sum Preliminary ATTACHMENT
debtor from of money attachment - A provisional remedy by which the property of
disposing his an adverse party is taken into legal custody,
properties either at the commencement of an action or at
To prevent Foreclosure of Receivership any time thereafter, as a security for the
further mortgage satisfaction of any judgment that may be
deterioration of recovered by the plaintiff or any proper party.
property under
mortgage PRELIMINARY ATTACHMENT
To regain Forcible Entry Writ of - Resorted to before the finality of the judgment
possession of Preliminary to secure the property of the adverse party and
land from an Mandatory to prevent its dissipation.
intruder Injunction - Cannot be the subject of a separate action
To request Action for Support independent of the principal action because the
support Support pendente lite attachment is only an incident of such action
To recover Recovery of Replevin
NOTA BENE:
possession of possession of
- The grant of Preliminary Attachment is
personal personal
discretionary and is not a matter or right.
property property
- Must be resorted to only when necessary and a
last remedy.
COURT WITH JURISDICTION
- Must be strictly construed in favour of the
- The court which has jurisdiction over the main
defending party.
action
WHO MAY AVAIL
KINDS OF PROVISIONAL REMEDIES
- Plaintiff or any proper party (counter-claimant,
a. Preliminary Attachment
cross-claimant, third-party plaintiff)
b. Preliminary Injunction
c. Receivership
PURPOSE OF PRELIMINARY ATTACHMENT
d. Replevin
(Philippine Commercial Int’l Bank vs. Alejandro)
e. Support pendente lite
1. To seize the property of the debtor in
f. Other interim reliefs provided for in other
advance of final judgment and to hold it for
rules and laws
purposes of satisfying said judgment; or
2. To acquire jurisdiction over the action by
*Deposit as a provisional remedy in the exercise of
actual or constructive seizure of the
equity jurisdiction – exercise of equity jurisdiction in
property in those instances where personal
this case is to prevent unjust enrichment and to
or substituted service of summons of the
ensure restitution.
defendant cannot be effected

Reference: Civil Procedure Volume II by Dean Riano

 2|Page NOTES IN CIVIL PROCEDURE II
STAGES OF THE PROCEEDINGS
a. When applied for at the commencement of the
action
- The application may be incorporated in a
verified complaint alleging all grounds relied
upon and complying with all the requisites for
the grant of the application
- Will result in an ex parte issuance of the writ of
preliminary attachment
b. When applied for any time before entry of
judgment
- May be made after the service of summons or at
any stage of the proceedings, even after
judgment, but before its entry.
- Would entail notice to the defendant
KINDS OF ATTACHMENTS
1. Preliminary Attachment
- Is one issued at the commencement of action or
at any time before the entry of the judgment as
security to the satisfaction of any judgment that
may be recovered.
- Here, the court takes custody of the property
pending litigation
2. Garnishment
- Is a kind of attachment in which the attaching
party seeks to subject his claim either the
property of the adverse party, in the hands of a
third person called the garnishee, or the money
which said third person owes the adverse party.
- Does not involve the actual seizure of the
property which remains in the hands of the
garnishee. It simply impounds the property in
the garnishee’s possession and maintains the
status quo until the main action is finally
decided.
- Example: Deposit in a bank; dividends due of the
defendant in the corporation; wages held by the
employer; royalties due to the defendant in the
hands of the publisher.
- How jurisdiction over the garnishee is acquired:
By the mere service upon him of the copy of the
writ of garnishment with a notice that his debt
to the defendant under his control or possession
is attached pursuant to the writ. Service of
summons is not required to bind the garnishee;
garnishee need not be impleaded as a party to
the case.
- Duty of the garnishee: Required to hold the
property or the funds in his hands during the
pendency of the litigation and at the
appropriate time, to deliver the same not to the
judgment debtor/defendant but to the new
creditor, the judgment obligee/creditor.
3. Levy on execution to satisfy a final judgment
- Is the process employed after the judgment has
become executory by which the property of the
judgment obligor is set aside and taken into the
custody of the court before the sale of the
property on execution for the satisfaction of a
final judgment.
Reference: Civil Procedure Volume II by Dean Riano
Bem Jamison
GROUNDS FOR THE ISSUANCE OF A WRIT OF
PRELIMINARY ATTACHMENT
1. Recovery of a specified amount of money or
damages (other than moral and exemplary);
- Main action: Action for sum of money or
damages
- Reason: Writ of preliminary attachment cannot
be issued for moral and exemplary damages and
other un-liquidated and contingent claims as
amount of such of such damages is left to the
discretion of the court.
- NOTA BENE: For the application of the writ of
attachment, it is insufficient to show that the
party against whom the writ is sought is about
to depart from the PH. It must also show that
such departure is “with the intent to defraud
the creditor”.
2. Action for money or property embezzled or
fraudulently misapplied or converted to his
own use
- Main action: Action for recovery of money or
property
- There is no need for a showing that the
defendant is concealing, removing or disposing
of his property.
- It is the character of the office or the duty of the
defendant that is to be considered when the
acts, giving rise to the cause of action, are
performed.
3. Recovery of property unjustly or fraudulently
taken
- Main action: Action for recovery of possession
of property
- There must be showing that the defendant has
concealed, removed or disposed of the
property.
4. Fraud in contracting thed debt or incurring an
obligation
- Basis of the application:
a. Causal Fraud (Dolo Causante) – fraud
used to induce another to enter into
the contract
b. Incidental Fraud (Dolo Incidente) –
fraud employed in the fulfilment of his
obligation or after the obligation has
been contracted.
- The circumstances constituting the fraud must
be stated with particularity.
5. Removal or disposal of property with intent to
defraud
- Elements:
a. A party has removed or disposed of his
property or is about to do so; and
b. It must be with the intent to defraud
the creditor.
 3|Page NOTES IN CIVIL PROCEDURE II
6. Action against a party who does not reside and
is not found in the Philippines, or on whom
summons may be served by publication.
- Includes persons who may be residents but on
whom summons by publication may be served:
a. Resident defendants whose identity or
whereabouts are unknown.
b. Resident defendants who are
temporarily out of the country.
REQUISITES FOR THE ISSUANCE OF AN ORDER OF
PRELIMINARY ATTACHMENT
1. Requisite Affidavit
- Need not be executed by the applicant. It may
be executed by some other person who
personally knows the facts
2. Attachment Bond
- In the amount fixed by the court and executed
to the adverse party.
- Purpose: Conditioned upon the payment of all
costs which the adverse party may be adjudged
as entitled to and all damages which he may
sustain by reason of the attachment, if it shall
finally be adjudged that the party applying for
the attachment was not entitled thereto.
Note: Hearing not required because the writ may be
issued ex parte.
CONTENTS OF THE AFFIDAVIT
1. That a sufficient cause of action exists;
2. That the case is one of those mentioned in Sec.
1 Rule 57;
3. That there is no other sufficient security for the
claim sought to be enforced by the action; and
4. That the amount due to the applicant, or the
value of the property the possession of which he
is entitled to recover is as much as the sum for
which the order is grated above all legal
counterclaims.
Failure to allege requisites: Renders the writ of
preliminary attachment fatally defective and the
judge issuing it is deemed to have acted in excess of
his jurisdiction.
EFFECT OF EXISTENCE OF MORTGAGE
- Writ will not be issued unless it is shown that
the security is insufficient to cover the claim.
ISSUANCE OF THE ORDER
1. Upon motion and notice and hearing by the
court in which the action is pending
- May even be issued on appeal since judgment is
not yet final and executory
2. Ex parte and even before the service of
summons
- Rationale: It is possible that during the course of
the hearing, the party against whom is sought
may dispose of his property or abscond before
the writ is issed.
- In this case, the writ may not yet be enforced
and validly implemented unless preceded or
simultaneously accompanied by service of
summons
Reference: Civil Procedure Volume II by Dean Riano
Bem Jamison
MOTION TO QUASH WRIT
- May be granted with notice to the applicant and
upon hearing.
STAGES IN THE GRANT OF PRELIMINARY
ATTACHMENT
1. The court issues the order granting the
application
2. The writ of attachment is issued pursuant to
the order granting the writ
3. The writ is implemented
Note:
- Jurisdiction over the person of the defendant
must be acquired in the third stage
(implementation of the writ). Hence the rule
provides: “No levy on attachment pursuant to
the writ of preliminary attachment shall be
enforced unless it is preceded, or
contemporaneously accompanied, by (1) service
of summons, together with (2) a copy of the
complaint, (3) the application for attachment,
the (4) applicant's affidavit and bond, and the
(5) order and writ of attachment, on the
defendant within the Philippines.”
WHEN REQUIREMENT OF PRIOR OR
CONTEMPORANEOUS SERVICE SHALL NOT APPLY
1. The summons could not be served personally
despite diligent efforts;
2. The summons could not be served by substitute
service despite diligent efforts;
3. The defendant is a resident of the Philippines
who is temporarily out of the country;
4. The defendant is a non-resident of the
Philippines;
5. The action is one in rem or quasi in rem;
DUTIES OF THE SHERIFF
1. The sheriff is required to proceed with the
attachment without delay and with all
reasonable diligence unless the party against
whom the writ is directed makes a deposit with
the court from which the writ is issued, or gives
a counter-bond.
2. The sheriff enforcing the writ is required to
attach the property subject of the writ to await
judgment and execution in the action.
- He must attach only so much of the property
located in the PH as may be sufficient to satisfy
the applicant’s demand
3. The sheriff is precluded from attaching ay
property exempt from execution.
4. After enforcing the writ, the sheriff must
likewise without delay make a return thereon
to the court from which the writ issued, with a
full statement of his proceedings under the writ
and a complete inventory of the property
attached, together with any counter-bond given
by the party against whom attachment is issued,
and serve copies thereof on the applicant.
 4|Page NOTES IN CIVIL PROCEDURE II
ATTACHMENT OF REAL PROPERTY
1. Sheriff shall file with the ROD the following:
a. Copy of the order of attachment;
b. Description of the property attached; and
c. Notice that the property subject of the writ
is attached.
2. Shall leave copies of the aforementioned
documents with the occupant of the property,
if any, or with such other person or his agent if
found within the province.
ATTACHMENT OF PERSONAL PROPERTY CAPABLE
OF MANUAL DELIVERY
1. Sheriff shall take the property and safely keep
it in his custody; and
2. Shall issue the corresponding receipt for the
property taken.
ATTACHMENT OF STCOCKS OR SHARES OR
INTEREST THEREIN
- Shall be attached by leaving with the President
or Managing Agent thereof the following:
a. Copy of the writ; and
b. Notice stating that the stock or interest of
the party against whom the attachment is
issued is attached in pursuance to such writ.
ATTACHMENT OF BAK DEPOSITS OR SIMILAR
PROPERTY NOT CAPABLE OF MANUAL DELIVERY
(GARNISHMENT)
- Sheriff shall leave with the person owing such
debts, or having in his possession or under his
control such credits or other personal property,
or with his agent:**
a. Copy of the writ; and
b. Notice that such debts, credits, and other
personal property are attached in
pursuance of such writ.
**Effect: Such person shall be liable to the applicant
for the amount of the debt, credits or property. The
liability continues until the attachment is
discharged or until the judgment recovered by the
applicant is satisfied. The liability shall cease if the
property subject of the writ is delivered or
transferred or the debts or credits are paid to the
clerk, sheriff or other proper officer of the court.
ATTACHMENT OF INTEREST IN PROPERTY
BELONGING TO THE ESTATE OF THE DECEDENT
1. The sheriff shall serve the executor,
administrator or other personal representative
of the decedent the following:
a. Copy of the writ; and
b. Notice that said interest is attached.
2. Copy of such writ and notice shall also be filed
in the office of the clerk of the court in which
said estate is being settled.
3. The same shall also be served upon the heir,
legatee or devisee concerned.
Effect: Representative is obligated to report the
attachment to the court when a petition for
distribution is filed. The property attached shall be
delivered to the sheriff, subject to the claim of the
Reference: Civil Procedure Volume II by Dean Riano
Bem Jamison
heir, legatee or devisee or any person claiming under
him.
ATTACHMENT OF PROPERTY IN CUSTODIA LEGIS
- Sheriff shall file with the proper court or quasi-
judicial agency the following:
a. Copy of the writ of attachment; and
b. Notice of the attachment served upon the c
custodian of the property.
- Merely operates as a lien and does not mean
that the attaching court will wrest custody of
the property from another court.
- Will create priority in the liens such that the
first attachment will have priority over
subsequent attachments.
POWER OF COURT TO EXAMINE
- The court is empowered to examine under oath
the party whose property is attached for the
purpose of giving information respecting his
property.
SALE OF PROPERTY AFTER LEVY ON ATTACHMENT
AND BEFORE ENTRY OF JUDGMENT
- General Rule: The property attached cannot be
sold during the pendency of the claim.
- Exceptions: Upon hearing with notice to both
parties, may be ordered to be sold at public
auction with proceeds to be deposited in court
to await the judgment in the action
1. If attached property is perishable
2. If the court determines that doing so will
serve the interest of both parties
REMEDY OF THIRD PERSON WHOSE PROPERTY IS
ATTACHED
Below remedies are cumulative and any one of these
may be resorted to without availing of other
remedies:
1. TERCERIA
- Done by making an affidavit of his title thereto
or right to the possession thereof, stating the
grounds of such right or title.
- The affidavit must be served upon the sheriff
(while he has possession of the attached
property) and the attaching party.
- Effect of Terceria: The sheriff shall not be bound
to keep the property.
- Remedy of Attaching Party: The attaching party
files a bond approved by the court.
- Effect of the bond: The sheriff shall not be liable
for the taking or keeping of the property.
- Purpose of the bond: To indemnify the sheriff
against any claim by the intervenor to the
property seized or for damages arising from
such seizure, which the sheriff was making and
for which the sheriff was directly responsible to
third party.
 5|Page NOTES IN CIVIL PROCEDURE II
2. SUMMARY HEARING
- The court shall order a summary hearing upon
application of a third person thru a motion to
set aside the levy on attachment, for the
purpose of determining whether the sheriff has
acted rightly or wrongly in the execution of the
writ of attachment.
- In case of erroneous levy by the sheriff: The
court may order the sheriff to return the
property to the third person.
3. MOTION FOR INTERVENTION
- May be filed provided no judgment has yet been
rendered in the action.
4. SEPARATE ACTION TO NULLIFY THE LEVY WITH
DAMAGES
- In case of unlawful levy and seizure
DISCHARGE OF ATTACHMENT
A writ of attachment already enforced may be
discharged in the following ways:
1. By filing a motion to discharge the attachment
and making a deposit or counter-bond.
- The motion shall be filed by the party whose
property has been attached or the person
appearing on his behalf
- The movant shall also make a cash deposit or
file a counter-bond executed to the attaching
party with the clerk of court where the
application is made in the amount equal to that
fixed by court in the order of attachment,
exclusive of cost.
- Purpose of the deposit or counter-bond: To
secure payment of any judgment that the
attaching party may recover in the action.
2. By filing a motion to set aside or discharge the
attachment on other grounds without need for
filing a counter-bond.
- May be filed before levy, after levy, or even
after the release of the attached property
- The motion shall be based on any of the
following grounds:
a. The attachment was improperly or
irregularly issued or enforced;
b. The bond is insufficient;
c. The attachment is excessive (discharge
shall be limited to the excess);
d. The property is exempt from execution and
as such, is also exempt from preliminary
attachment.
NOTE: A discharge of attachment must be made
only upon notice and after hearing. Ex parte
discharge is not allowed.
EFFECT OF DISCHARGE OF THE ATTACHMENT
- The property attached or the proceeds of any
sale thereof shall be delivered to the party
making the deposit or giving the counter-bond,
or to the person appearing on his behalf.
- The deposit or counter-bond shall stand in the
place of the property attached.
Reference: Civil Procedure Volume II by Dean Riano
Bem Jamison
DAMAGES FOR A WRONGFUL ATTACHMENT
- Available even to the party who loses the main
case but is able to establish a right to damages
by reason of improper, irregular, or excessive
attachment.
- Actual damages, unless attachment was not
merely wrongful but also malicious, the
attachment defendant may also recover moral
and exemplary damages.
- Recovery of damages shall be in the same
action and included in the judgment of the main
case.
- How filed:
1. The application for damages must be filed
before the trial or before appeal is
perfected or before the judgment becomes
executory.
2. There must be notice to the attaching party
and his surety/sureties;
3. The application must set forth the facts
showing the applicant’s right to damages as
well as the amount thereof;
4. A hearing is required before awarding
damages.
- If case is on appeal and judgment of appellate
court is favourable to the party against whom
the attachment is issued: He must claim
damages during the pendency of the appeal and
before the judgment of the appellate court
becomes executory.
- If bond or deposit insufficient to cover for
damages: The party against whom the
attachment is issued may recover in the same
action from any property of the attaching party
which is not exempt from execution.
SATISFACTION OF THE JUDGMENT OUT OF THE
PROPERTY ATTACHED
- The procedure for satisfying the judgment:
1. Payment to the judgment obligee the
proceeds of all sales or perishable or other
property sold in pursuance of the order of
the court, or so much as shall be necessary
to satisfy the judgment;
2. If any balance remains due, by selling so
much of the property, real or personal, as
may be necessary to satisfy the balance, if
enough for that purpose remain in the
sheriff’s hands, or in those of the clerk of
court; and
3. By collecting from all persons having in their
possession credits belonging to the
judgment obligor, or owing debts to the
latter, the amount of such credits or debts
as determined by the court in the action
and as stated in the judgment, and paying
the proceeds of such collection over to the
judgment obligee.
- Counter-bond: Recovery may also be made by
requiring the surety on the bond to pay the
judgment creditor upon demand of the amount
due under the judgment, after notice and
summary action in the same action.
 6|Page NOTES IN CIVIL PROCEDURE II Bem Jamison

- Deposit: Shall be applied under the direction of

the court to the satisfaction of the judgment.
a. In case of surplus, balance shall be
refunded to the depositor or his assignee.
b. If judgment is in favour of the party
whom attachment was issued, the whole
sum deposited must be refunded to him or
his assignee.

RETURN OF SHERIFF
- The sheriff shall make a return to the court, in
writing, of his proceedings and furnish the
parties with copies thereof.
- If any balance shall remain due (after realizing
attached properties, including proceeds of debts
and credits): The sheriff must proceed to collect
such balance as upon ordinary execution.
- In case of surplus (after judgment is paid): The
sheriff must return to the judgment obligor the
attached property remaining in his hands, and
any proceeds of the sale of the property
attached not applied to the judgment.

RULE IF JUDGMENT IS RENDERED AGAINST THE

ATTACHING PARTY
- All the proceeds of sales and money collected or
received by the sheriff, under the order of
attachment, and all property attached
remaining in the sheriff’s hands, shall be
delivered to the party against whom
attachment was issued and the order of
attachment is discharged.

Reference: Civil Procedure Volume II by Dean Riano

 7|Page NOTES IN CIVIL PROCEDURE II Bem Jamison

PRELIMINARY INJUNCTION Status quo order/ Status quo ante order

 An order intended to maintain the last, actual,
(RULE 58) peaceable and uncontested state of things
which preceded the controversy.
PRELIMINARY INJUNCTION  More of a cease and desist order (as opposed to
 Is an order granted at any stage of an action, a TRO or a preliminary injunction) since it
prior to the judgment or final order, requiring a neither directs the doing or undoing of acts as
party, court, agency or person to perform or in the case of prohibitory or mandatory
refrain from performing a particular act or acts. injunctive relief.
 Prohibitory: If it is availed of to require one to
refrain from a particular act. GRANT OF A WRIT OF PRELIMINARY INJUNCTION
 Mandatory: If it requires the performance of a  NOT a judgment based on merits of the case.
particular act or acts.  Generally based solely on initial and incomplete
 OBJECTIVE: Whether prohibitory or mandatory, evidence.
the objective is to maintain the prevailing state  The evidence submitted during the hearing for a
of affairs of the parties prior to the controversy. writ of preliminary injunction is NOT conclusive
Its purpose is to preserve the status quo of the or complete, for ONLY SAMPLING is needed to
matter subject of the action to protect the rights give the court an idea of the justification for the
of the plaintiff during the pendency of the suit. preliminary injunction pending decision of the
 Example: If one’s land is threatened to be case.
occupied by another unlawfully.  The grant or denial of the writ is
 Main action: Action for Injunction DISCRETIONARY upon the trial court. The
 Provisional Remedy: Prayer for the exercise of judicial discretion by the trial court in
issuance of preliminary prohibitory injunctive matters must not be interfered with
injunction except when there is manifest abuse.
 Effect: Defendant will be prevented
from performing acts of dispossession WHEN GRANTED
in the meantime while the main action  At any stage of the action or proceeding, prior
is pending. to the judgment or final order.
 Example: If the land of the rightful possessor
had been occupied by force KINDS OF PRELIMINARY INJUNCTION
 Main action: Forcible Entry 1. Prohibitory
 Provisional Remedy: Prayer for the  Commands one to refrain from doing a
issuance of writ of preliminary particular act
mandatory injunction 2. Mandatory
 Effect: Possession will be restored to  Commands performance of some positive act to
the plaintiff during the pendency of the correct a wrong done in the past.
main action.
PROHIBITORY versus MANDATORY
PRELIMINARY INJUNCTION AS AN EQUITABLE
REMEDY PRELIMINARY PRELIMINARY
 An application for a preliminary injunction is an PROHIBITORY MANDATORY
equitable remedy, and one who claims for INJUCTION INJUNCTION
equity must do so with clean hands. It requires one to refrain It requires the
 It is to be resorted to by a litigant to prevent or from a particular act or performance of a
preserve a right or interest where there is a acts. particular act or acts.
pressing necessity to avoid injurious The act has not yet been The act has already been
consequences which cannot be remedied under performed because it is performed and has
any standard of compensation. restrained or prevented violated the rights of
by the injunction. another.
PURPOSE OF PRELIMINARY INJUNCTION Purpose is to prevent a Purpose is to restore the
1. To prevent threatened or continuous future or threatened status quo and then
irreparable injury to parties before their claims injury. The status quo is preserve the said status
can be thoroughly studied and adjudicated preserved. quo which has been
during the pendency of an action. restored
2. To preserve the status quo until the merits of
the case can be heard.

Status quo
 Defined as the last actual, peaceful, and
uncontested status that precedes the actual
controversy, that which is existing at the time of
the filing of the case.

Reference: Civil Procedure Volume II by Dean Riano

 8|Page NOTES IN CIVIL PROCEDURE II Bem Jamison

PRELIMINARY INJUCTION versus MAIN ACTION FOR JUDGMENT IN ACTION FOR INJUNCTION
INJUNCTION  Immediately executory, i.e. it is enforceable
after its rendition and shall not be stayed by an
PRELIMINARY MAIN ACTION FOR appeal taken therefrom, unless otherwise
INJUCTION INJUNCTION ordered by the trial court.
Not a principal action A principal action  In case of stay of execution: Upon such terms as
and can only exist as an to bonds or otherwise, as may be considered
incident to a principal proper for the security or protection of the
1 action. rights of the adverse party.
Not a cause of action but A cause of action in itself
merely an adjunct to the PRELIMINARY PROHIBITORY INJUCTION versus
main suit PETITION FOR PROHIBITION
Does not seek a Seeks a judgment
permanent injunction. embodying a final PRELIMINARY PETITION FOR
injunction. PROHIBITORY PROHIBITION
It is designed to require It perpetually restrains a INJUCTION
a party or a court, person from the Is not an independent Is an independent action
2 action
agency or a person to commission or
refrain from a particular continuance of an act. Is one that is generally Not directed against a
act or acts during the directed against a party party-litigant but against
pendency of the litigant, a court, an a tribunal, corporation,
principal case. agency or person. board, officer or person
Is an order granted at Granted after the trial of exercising judicial, quasi-
any stage of an action or the action if it appears judicial or ministerial
proceeding prior to the that the applicant is functions.
3 Applies even if there is Applies when the acts or
judgment or final order. entitled to have the acts
complained of no issue of jurisdiction, proceedings of any
permanently enjoined. grave abuse of tribunal, corporation,
The hearing is separate -- discretion, or other board, officer or person
and distinct from the similar acts which are without or in excess
4 amount to lack of of its or his jurisdiction.
trial on the merits of the
main case injunction. jurisdiction.
Generally based on The right and the act
initial and incomplete violative thereof must be PRELIMINARY MANDATORY INJUCTION versus
evidence. The evidence established with abso- PETITION FOR MANDAMUS
is not conclusive or lute certainty to be a
complete for only basis for a final and PRELIMINARY PETITION FOR
5 sampling is needed to permanent injunction. MANDATORY MANDAMUS
give the trial court an INJUCTION
idea of the justification Is a provisional remedy, Is a special civil action
for the preliminary not a main or and a main action
injunction pending independent action
decision. Is generally directed Is directed against a
Not a final resolution or Judgment for a against a party litigant, tribunal, board, officer
decision disposing of the permanent injunction although under the or person
case. Interlocutory in suit should be assailed rules, it may also be
6 nature and hence, the by a timely appeal. issued against a court,
order of the court may agency or person
be challenged by a Is issued to require a Is one which seeks a
petition for certiorari. party to perform an act judgment commanding a
in order to restore the tribunal, corporation,
EXAMPLES OF ACTS SUBJECT TO THE MAIN ACTION last peaceable and board, officer or person
FOR INJUNCTION uncontested status to perform a duty which
1. Prying into the privacy of another’s residence preceding the the law specifically
2. Meddling with or disturbing the private life or controversy. enjoins as a duty either
family relations of another because there was an
3. Intriguing to cause another to be alienated from unlawful neglect of such
his friends duty or a person was
4. Vexing or humiliating another on account of his unlawfully excluded
religious beliefs, lowly station in life, place of from the use and
birth, physical defect or other personal enjoyment of an office
condition. which such person is
entitled.
May be directed against Direct against ministerial
any act. acts.

Reference: Civil Procedure Volume II by Dean Riano

 9|Page NOTES IN CIVIL PROCEDURE II
COURT THAT ISSUES WRIT OF PRELIMINARY
INJUNCTION
 To be issued by the court where the principal
action is pending.
GROUNDS FOR THE ISSUANCE OF WRIT OF
PRELIMINARY INJUNCTION
Section 3 Rule 58 of the Rules of Court provides that
a preliminary injunction may be granted when the
following have been established:
a. That the applicant is entitled to the relief
demanded, and the whole or part of such relief
consists in restraining the commission or
continuance of the act or acts complained of, or
in requiring the performance of an act or acts,
either for a limited period or perpetually;
b. That the commission, continuance or non-
performance of the act or acts complained of
during the litigation would probably work
injustice to the applicant; or
c. That a party, court, agency or a person is doing,
threatening, or is attempting to do, or is
procuring or suffering to be done, some act or
acts probably in violation of the rights of the
applicant respecting the subject of the action or
proceeding, and tending to render the judgment
ineffectual.
REQUISITES FOR ISSUANCE OF PRELIMINARY
INJUNCTION
1. There exists a clear and unmistakable right to be
protected;
“Clear and unmistakable right” – a present and
legal right, which must be shown to be clear and
positive.
2. This right is directly threatened by an act sought
to be enjoined;
3. The invasion of the right is material and
substantial; and
4. There is an urgent and paramount necessity for
the writ to prevent serious and irreparable
damage.
FORMAL REQUISITES FOR ISSUANCE OF WRIT OF
PRELIMINARY INJUNCTION OR A TEMPORARY
RESTRAINING ORDER
a. There must be a verified application;
 Absence of a verification makes an application
patently insufficient both in form and in
substance;
b. The applicant must post a bond, unless
exempted by the court.
 The bond, which shall be in an amount to be
fixed by the court, is executed in favour of the
party enjoined to the effect that the applicant
shall pay to the party enjoined all damages
which he may sustain by reason of the
preliminary injunction or the restraining order if
the court should finally decide that the applicant
was not entitled to the writ or order.
c. As to the writ of preliminary injunction: The
court must conduct a hearing.
 It cannot be issued without a prior notice and
hearing. It cannot be issued ex parte.
Reference: Civil Procedure Volume II by Dean Riano
Bem Jamison
As to the application for a temporary restraining
order: It shall be acted upon only after all parties
are heard in a summary hearing which shall be
conducted within 24 hours after the sheriff’s return
of service and/or the records are received by the
branch selected by raffle and to which the records
shall be transmitted immediately.
Note: Same requirements for the issuance of the
preliminary injunction and a temporary restraining
order except that the latter may be issued ex parte.
POSTING OF A BOND
 Purpose: To protect the defendant against loss
or damage by reason of the injunction in case
the court finally decides that the plaintiff was
not entitled to it.
RULE ON PRIOR OR CONTEMPORARY SERVICE OF
SUMMONS; WHEN NOT REQUIRED
General Rule: Notice must be preceded or
contemporaneously accompanied by service of
summons upon the adverse party. Together with
the summons shall be a copy of the complaint and
the applicant’s affidavit and bond.
Exception: Not required where:
a. Summons could not be served upon the
defendant either in person or by
substituted service despite diligent efforts;
or
b. When the defendant is temporarily out of
the Philippines or when he is a non-
resident.
NOTICE AND HEARING
 No preliminary injunction shall be granted
without hearing and prior notice to the party or
persons sought to be enjoined.
 It cannot be issued ex parte.
TEMPORARY RESTRAINING ORDER
 Issued to preserve the status quo until the
hearing of the application for a writ of
preliminary injunction because the injunction
cannot be issued ex parte.
 When may TRO be issued ex parte: If it shall
appear from the facts shown by affidavits or by
the verified application that great or irreparable
injury would result to the applicant before the
matter can be heard on notice.
 Validity of TRO: For a period of 20 days from
service on the party or person sought to be
enjoined.
 Duty of court within the 20-day period: The
court must order said party or person to show a
cause why the injunction should not be granted.
The court shall also determine whether or not
the preliminary injunction shall be granted and
then issue the corresponding order.
 In case of extreme urgency: The judge may
issue ex parte a TRO effective only for 72 hours
from issuance but shall immediately comply
with the rule on prior or contemporaneous
 10 | P a g e NOTES IN CIVIL PROCEDURE II
service of summons and the documents to be
served therewith, unless summons is not
required (please see page 3 - Rule on prior or
contemporary service of summons).
 Duty of court within the 72-hour period: The
judge shall conduct a summary hearing to
determine whether or not the TRO can be
extended to 20 days. The 72-hour period shall
be included in the 20-day period set by rules.
 If the application for preliminary injuction is
denied: The TRO would be deemed
automatically vacated.
 If TRO is issued by the Court of Appeals: It shall
be effective for 60 days from service on the
party or person sought to be enjoined. Shall
th
automatically expire on the 60 day without
need for any judicial declaration.
 If TRO is issued by the Supreme Court: TRO
shall be effective until further orders.
THE 20-DAY PERIOD
 The TRO shall automatically expire on the 20
th
day by the sheer force of law. No judicial
declaration to the effect is necessary.
 The failure of the trial court to fix a period in the
TRO does not convert it to a preliminary
injunction. Where there is an omission to fix a
period, the 20-day period is deemed
incorporated in the order.
 Extending or renewing the TRO is prohibited if
the extension or renewal is based on the very
same ground upon which it was originally
issued.
PROHIBITION ON INJUNCTIONS
 No court shall issue any TRO or preliminary
injunction against a government contract or
project.
 Rationale: Injunctions and restraining orders
tend to derail the expeditious and efficient
implementation and completion of government
infrastructure projects, increase costs, and delay
the enjoyment of so the social and economic
benefits therefrom.
OTHER CASES WHERE PRELIMINARY INJUNCTIONS
WILL NOT BE ISSUED
1. Against lawful actions of government agencies
that enforce environmental laws or prevent
violations thereof.
2. In any case involving growing out of labor
disputes except as otherwise provided in Article
218 and 264 of the Labor Code, except:
 If the injunction is sought by a third
person whose property is sought to be
levied upon, to satisfy the liability of
another person since the matter
neither involves nor grows out of a
labor dispute insofar as the third party
is concerned.
3. In cases involving concessions, licenses and
other permits issued by public administrative
officials or bodies for the exploitation of natural
resources.
Reference: Civil Procedure Volume II by Dean Riano
Bem Jamison
4. Against the execution or implementation of
government infrastructure projects and
essential government projects including arrastre
and stevedoring operations.
5. Against the Presidential Reform Council (PARC)
or any of its duly authorized agencies in any case
connected with the application, implementation
or enforcement of the CARP.
6. Against the Privatization Trust (now
Privatization and Management Office of the
Department of Finance).
7. With the orders of another court of co-equal
rank or decrees of a court with concurrent or
coordinate jurisdiction.
8. RTC against quasi-judicial bodies of equal rank
such as the SSS and SEC.
9. Against the execution of an award for
workmen’s compensation.
10. Injunction to restrain the collection of taxes of
any national internal revenue tax, fee or charge.
 Exception: When special circumstances
so warrant as when the collection of
taxes would cause irreparable injury.
11. Orders releasing imported articles impounded
by the Bureau of Customs
12. Against consummated acts.
 Reason: Nothing more could be
enjoined or prohibited because the
events sought to be prevented by
injunction or prohibition have already
happened.
13. To transfer possession or control of a property
to another when the legal title is still in dispute
between the parties and whose legal title has
not been clearly established.
14. For the purpose of establishing new relations
between the parties.
15. Where there is lack of a clear and unmistakable
right on the part of the applicant as when the
complainant’s right is doubtful or disputed.
16. Injunction which in effect, would dispose of the
main case without trial.
17. To restrain a criminal prosecution except in
extreme cases.
18. Against the extrajudicial foreclosure of
mortgage on the allegation that the loan has
been paid or is not delinquent.
 Unless the application is verified and
supported by evidence of payment.
19. Against the BSP for examining any institution
subject to supervision or examination by the
BSP.
 Unless there is a convincing proof that
the action of BSP is plainly arbitrary and
made in bad faith and the petitioner
files a bond
20. During the pendency of the petition for judicial
relief from the ruling of the arbitral tribunal.
21. Against any freeze order issued by the AMLC
 Except if issued by CA or SC
22. Injunction issued in order to protect one’s
alleged right of possession over inalienable land
 11 | P a g e NOTES IN CIVIL PROCEDURE II Bem Jamison

OMBUDSMAN LAW although applicant is entitled to the injunction

“No writ of injunction shall be issued by any court to
delay an investigation being conducted by the
Ombudsman. “
 INEFFECTIVE because it took away from the
courts their power to issue TRO or writ of
preliminary injunction to enjoin an investigation
conducted by the Ombudsman. Congress
encroached upon the Court’s constitutional rule-
making authority.
“No court shall hear any appeal or application for
remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure
question of law.”
 UNCONSTITUTIONAL because Congress cannot
interfere with matters of procedure, hence, it
cannot alter the scope of a Rule 45 appeal so as
to apply to interlocutory findings issued by the
Ombudsman.
or restraining order, that:
a. The issuance or continuance thereof would
cause irreparable injury or damage to the
defendant while the applicant can be fully
compensated for the damages that he may
suffer; and
b. The defendant files a bond conditioned
that he will pay all damages which the
plaintiff may suffer by reason of the
dissolution of the injunction.
MODIFICATION OF THE INJUNCTION
 If it appears that the extent of the preliminary
injunction or restraining order is too great.
DUTY OF COURT THAT ISSUED THE WRIT AGAINST A
LOWER COURT OR QUASI JUDICIAL AGENCY
- Shall decide the main case or petition within six
(6) months from the issuance of the writ.

GROUNDS FOR OBJECTION OR DISSOLUTION OF GRANT OF FINAL INJUNCTION

INJUNCTION OR RESTRAINING ORDER Effect: Permanently restraining a party or person
 The application for injunction or restraining enjoined from committing or continuing the acts
order may be denied upon showing of its subject of the injunction.
insufficiency. It is considered insufficient:
1. If it is not verified and supported by any of
the grounds for its issuance under Sec. 3 of
Rule 58;
2. If it does not show facts entitling the
applicant to relief demanded;
3. If it is not supported by the required bond
under Sec. 4 Rule 58;
4. Upon affidavits of the party or person
enjoined, which may be opposed by the
applicant also by affidavit.
5. If it appears after hearing that although
applicant is entitled to the injunction or
restraining order, the issuance or
continuance thereof would cause
irreparable injury or damage to the party or
person enjoined while the applicant can be
fully compensated for such damages as he
may suffer.
6. Grave abuse of discretion
o To be a valid ground for the
nullification of the writ, there must be
a capricious and whimsical exercise of
judgment, equivalent to lack or excess
of jurisdiction.
o The power must be exercised in an
arbitrary manner by reason of passion
or personal hostility and it must be
patent and gross as to amount to an
evasion of a positive duty or a virtual
refusal to perform a duty enjoined by
law.

EFFECT OF FILING A COUNTERBOND

 Filing a counter-bond does not necessarily
warrant the dissolution of the writ of
preliminary injunction.
 A preliminary injunction, if granted, may be
dissolved if it appears after hearing that

Reference: Civil Procedure Volume II by Dean Riano

 12 | P a g e NOTES IN CIVIL PROCEDURE II
RECEIVERSHIP (RULE 59)
RECEIVERSHIP
- As a provisional remedy, it presupposes that
there is a principal action or proceeding and that
the property or fund subject of such action or
proceeding requires its preservation.
- Aimed at the preservation of, and making more
secure, existing rights. It cannot be used as an
instrument for the destruction of those rights.
EXAMPLES OF CASES THAT JUSTIFY THE
APPOINTMENT OF A RECEIVER
1. There is an action or proceeding and the
subject of the same is property or fund, and
that such property or fund is in danger of being
lost, removed, or materially injured, unless a
receiver shall be appointed to administer and
preserve it.
- In case of real or personal property subject of
the action, a receiver may be appointed by the
court if:
a. He has actual interest in it
b. That such property is in danger of being
lost, removed, or materially injured or
whenever it appears to be the most
convenient and feasible means of
preserving or administering the property in
litigation.
2. There is an action for foreclosure of mortgage
filed by the mortgagee and it appears that the
property mortgaged is in danger of being
dissipated or materially injured, and that its
value is probably insufficient to discharge the
mortgage debt, or that the parties have so
stipulated in the contract of mortgage.
3. There is already a judgment and receivership is
applied for to aid execution because:
a. The execution has been returned
unsatisfied;
b. The judgment obligor refuses to apply his
property in satisfaction of the judgment;
4. There is a pending appeal but a receiver is
necessary to preserve the property during its
pendency.
5. In other cases, the appointment of a receiver is
justified when it is the most convenient and
feasible means of preserving or administering
the property in litigation.
RECEIVER
- A person appointed by the court in behalf of all
the parties to the action for the purpose of
preserving and conserving the property in
litigation and prevents its possible destruction
or dissipation, if it were left in the possession of
any of the parties.
- Appointment of a receiver is not a matter of
absolute right and is dependent on the sound
discretion of the court.
Reference: Civil Procedure Volume II by Dean Riano
Bem Jamison
- Not an agent or representative of any party to
the action.
- He is an officer of the court exercising his
functions in the interest of neither parties but
for the common benefit of all the parties in
interest. (Pacific Merchandising Corp vs.
Consolacion Insurance & Surety Co)
- Should be a person indifferent to the parties and
should be impartial and disinterested.
(Commodities Storage & Ice Plant Corp vs. CA)
- Clerk of Court as Receiver: SC nullified
appointment of the Clerk of Court as a Receiver
since the former is already burdened with his
duties as a Clerk of Court and hence, cannot be
in a better position to perform the duties of a
receiver.
COURT THAT CAN GRANT RECEIVERSHIP:
a) The court in which the action is pending;
b) The Court of Appeals or any member thereof;
c) The Supreme Court, or any member thereof;
WHEN MAY RECEIVERSHIP BE AVAILED
a) During the pendency of the action; or
b) After judgment:
o To preserve the property during the
pendency of an appeal; or
o To dispose of it according to the judgment;
o To aid execution; or
o To carry the judgment into effect.
REQUISITES FOR APPOINTMENT OF A RECEIVER
1. A verified application must be filed by the
applicant.
2. The applicant must have interest in the
property or fund subject of the action. He must
show that the property or fund is in danger of
being lost, removed, materially altered, wasted
or dissipated or there is a need to preserve or
administer the property;
3. The application must be with notice and set for
hearing (necessary because the grounds require
resolution on factual basis).
4. Before issuing the appointment of a receiver,
applicant shall post a bond executed against
whom the application is presented.
- Amount: Shall be fixed by court. May be
modified by the court after appointment.
- Purpose: To the effect that the applicant will
pay such party all damages he may sustain by
reason of the appointment of a receiver.
5. Before entering upon his duties, the receiver
must be sworn to perform his duties faithfully
and shall also file a bond.
- Purpose: To the effect that he will faithfully
discharge his duties in the action and obey the
orders of the court.
KINDS OF BONDS
1. The bond required before the appointment of a
receiver
2. The bond required of a receiver before entering
his duties
 13 | P a g e NOTES IN CIVIL PROCEDURE II Bem Jamison

HOW TO OPPOSE THE APPLICATION FOR THE TERMINATION AND COMPENSATION

APPPOINTMENT OF A RECEIVER - After determination by the court, motu proprio
a) By filing a bond executed to the applicant; or upon motion, that the necessity for a receiver
- Amount: Shall be fixed by court. no longer exists, it shall, after due notice and
- Purpose: To the effect that the applicant will hearing,
pay such party will pay the applicant all the a. Settle the accounts of the receiver
damages he may suffer by reason of the acts, b. Direct the delivery of the funds to the
omissions, or other matters specified in the person adjudged to be entitled to receive
application as ground for such appointment. them; and
b) If it is shown that his appointment was c. Order the discharge of the receiver from
obtained without sufficient cause. duty.
Compensation: Reasonable compensation as the
GENERAL POWERS OF A RECEIVER circumstances of the case warrant
1. To bring and defend actions in his own name in
his capacity as receiver;
2. To take and keep possession of the property
subject of the controversy;
3. To receive rents;
4. To collect debts due to himself as receiver or to
the fund, property, estate, person, or
corporation of which he is the receiver;
5. To compound for and comprise the same;
6. To make transfers;
7. To pay outstanding debts;
8. To divide the money and property that shall
remain among the persons legally entitled to
receive the same; and
9. Generally, to do such acts respecting the
property as the court may authorize.

LIMITATIONS OF A RECEIVER
- A receiver may not invest funds in his custody
without an order from the court and the written
consent of all the parties to the action.
- A receiver has no right or power to make any
contract binding the property in his custody or
to pay out funds in his hands without authority
or approval of the court.
- The custody of the receiver is the custody of the
court; his acts and possession are the acts and
possession of the court, and his contracts and
liabilities are contracts and liabilities of the
court. The receiver is subject to the control and
supervision of the court at every step in his
management of the property and funds in his
hands.

SUITS AGAINST A RECEIVER

- No action shall be filed against a receiver
without leave of the court which appointed her.
- If filed without leave of court: Action may be
dismissed upon proper motion for failure to
comply with a condition precedent.

LIABILITY IN CASE OR REFUSAL/NEGLECT TO

DELIVER PROPERY TO RECEIVER
1. He may be punished for contempt;
2. Shall be liable to the receiver for the money or
value of the proper you refused to surrender,
together will all damages that may have been
sustained by the party entitled thereto.

Reference: Civil Procedure Volume II by Dean Riano

 14 | P a g e NOTES IN CIVIL PROCEDURE II Bem Jamison

REPLEVIN (RULE 60) being concealed or

concealed or disposed of
REPLEVIN disposed of to
- Is both a form of principal remedy and a the prejudice
provisional remedy. of the
- It may refer either to: applicant
a. The action itself, i.e. to regain the WHEN Property Can be availed of
possession of personal chattels being OBJECT IS already under even if the
wrongfully detained from the plaintiff by UNDER custodaia legis property is under
another; or CUSTODIA cannot be custodia legis
b. It may refer to the provisional remedy, i.e. LEGIS subject of
to would allow the plaintiff to retain the replevin
thing during the pendency of the action and AMOUNT OF Double the Equal to that fixed
hold it pendent lite. BOND value of the by the court
- It presupposes that existence of a principal property as which is the
action which prays for the recovery of stated in the amount sufficient
possession of personal property. The party affidavit to satisfy the
seeking to recover such possession may apply submitted in applicant’s
for an order for the delivery of such property to support of the demand or the
him even before the judgment is rendered in application value of the
the principal action – the party is availing of the property attached
provisional remedy of replevin.
- Example in cases of foreclosure: creditor WHEN A WRIT OF REPLEVIN MAY BE APPLIED FOR
forecloses the chattel mortgage but debtor a. The commencement of the action; or
refuses to yield, creditor may obtain a writ of b. At any time before answer.
replevin as a preliminary step for the
foreclosure. PROCEDURE FOR THE APPLICATION
1. The party must file an application for a writ of
REPLEVIN VS. PRELIMINARY ATTACHMENT replevin by an affidavit executed by the
applicant or of some other person who
REPLEVIN PRELIMINARY personally knows the facts:
ATTACHMENT a. That the applicant is the owner of the
PURPOSE To recover Not to actually property claimed. It shall also describe the
personal recover any property.
property property but o If he is not the owner, he must state
capable of simply to place that he is entitled to the possession of
manual the property the same.
delivery under the custody b. That the property was wrongfully detained
of the court to by the adverse party. It shall allege the
secure the cause of the detention according to the
satisfaction of the best of his knowledge, information, and
judgment belief.
OWNERSHIP Belongs to Belongs to the c. That the property has not been distrained
either the defendant or taken for a tax assessment or a fine
plaintiff or one pursuant to law, or seized under a writ of
over which he execution or preliminary attachment or
has a right of otherwise placed in custodia legis.
possession o If it is so seized, it must be alleged that
WHEN Can be availed Can be availed it is exempt from such seizure or
AVAILED only when the even if the custody.
defendant is in property is in the d. The actual market value of the property is
actual or custody of third to be stated.
constructive persons. 2. The applicant must give a replevin bond
possession executed to the adverse party. It is intended to
indemnify the defendant against any loss that
EXTENSION Extends only to Extends to all
he may suffer by being compelled to surrender
personal kinds of property,
the possession of the disputed property pending
property real or personal or
the trial of the action.
capable of even incorporeal
- Amount: Double the value of the property as
manual property.
stated in the affidavit
delivery
- Purpose: (a) To secure the return of the
WHAT May be availed The applicant
property to the adverse party of such return be
NEEDS TO BE without needs to show
ordered by the court, and (b) for the payment to
SHOWN showing that that the property
the adverse party of such sum that may be
the property is is being removed,
recovered from the applicant in the action.

Reference: Civil Procedure Volume II by Dean Riano

 15 | P a g e NOTES IN CIVIL PROCEDURE II
PROPERTY IN CUSTODIA LEGIS
- Replevin is not available when the property is
under custodia legis, under attachment, or
seized pursuant to law.
- Reason: There would be interference with the
possession before the function of the law had
been performed as to the process under which
the property was taken.
- When is a thing considered in custodia legis:
When it is shown that it has been and is subject
to the official custody of a judicial executive
officer in pursuance of his execution of a legal
writ. Property subject of litigation is NOT by that
fact alone in custodia legis.
- Where a personal property is seized under a
search warrant:
a. When there is reason to believe that
criminal action will follow – proper
remedy is filing an action for replevin
(and interpleader if there are
conflicting claims) with the proper
court.
b. If there is no reason to believe that a
criminal case will follow or it has
already been filed and there are
conflicting claims – proper remedy is to
question the validity of the search
warrant in the same court which issued
it.
UPON FILING OF THE AFFIDAVIT AND APPROVAL OF
THE BOND
- The court shall issue an order and the
corresponding writ of replevin.
- The writ shall:
a. Describe personal property alleged to be
wrongfully detained, and
b. Require the sheriff to take such property
into his custody.
DUTY OF THE SHERIFF
1. Upon receipt of the court order, the sheriff
must:
a. Serve the copy of the order on the adverse
party, together with the copy of the
application, affidavit, and bond; and
b. Take custody of the property.
o If the property or any part thereof is
concealed in a building or enclosure,
the sheriff is mandated to demand its
delivery. If not delivered despite the
demand, he is authorized to cause the
building or enclosure to be broken
open and take the property into his
possession.
2. After property is taken, he must keep it in a
secure place.
3. The property is not to be delivered immediately
to the applicant because within 5 days from the
taking, the sheriff shall wait for the move of the
adverse party.
a. If adverse party does not object to the
sufficiency of the bond or fails to perform
the acts required by the Rules to effect the
return – property shall be delivered to the
Reference: Civil Procedure Volume II by Dean Riano
Bem Jamison
applicant upon payment of fees and
necessary expenses for taking and keeping
the property.
b. If for any reason the property is not
delivered to the applicant – Sheriff must
return if to the adverse party.
HOW ADVERSE PARTY MAY SEEK RETURN OF
PROPERTY
- The adverse pay may object to the sufficiency of
the bond or of the sureties thereon. This is done
by filing a redelivery bond where the action is
pending.
- Amount: Double the value of the property as
stated in the applicant’s affidavit.
- Purpose: (a) To secure the delivery of the
property to the applicant, if such delivery be
adjudged, and (b) for the payment of such sum
to him as may be recovered against the adverse
party.
- When may a party require return of property:
At any time before the delivery of the property
to the applicant.
- Summary of conditions which must be met to
effect the return of property to the adverse
party:
a. He should post a redelivery bond in an
amount double the value of the property;
b. The bond is executed to the applicant;
c. He should serve a copy of the bond to the
applicant;
d. He must perform the above acts before the
delivery of the property to the applicants,
i.e. within 5 days from the taking of the
property by the sheriff.
e. The bond is sufficient.
EFFECT OF DISMISSAL OF THE COMPLAINT
- Upon dismissal of the replevin case for failure to
prosecute, the writ of seizure, which is merely
ancillary in nature, become functus officio (of no
further authority or legal effect) and should be
lifted.
- The parties’ status prior to the litigation is
restored, as if no complaint was filed at all.
REMEDY OF A THIRD PARTY WHO IS CLAIMING ON
THE PROPERTY
1. Terceria
- Done by making an affidavit of his title thereto
or right to the possession thereof, stating the
grounds of such right or title.
- The affidavit must be served upon the sheriff
while he has possession of the property and
upon the applicant.
- Effect of Terceria: The sheriff shall not be bound
to keep the property.
- Remedy of Applicant: The applicant may file a
bond approved the court to indemnify the
third-party claimant in a sum not less than the
value of the property under replevin.
- Effect of the bond: The sheriff shall not be liable
for the taking or keeping of the property.
- Period to file: Within 120 days from the date of
the filing of the bond.
 16 | P a g e NOTES IN CIVIL PROCEDURE II Bem Jamison

2. Filing a separate action

3. By intervening in the action through a motion

IF THE WRIT OF REPLEVIN IS ISSUED IN FAVOR OF

THE REPUBLIC OF THE PHILIPPINES
- The bond is not required.
- In case the sheriff is sued for damages: He shall
be represented by the Solicitor General, and if
held liable, the actual damages shall be paid by
the National Treasury

JUDGMENT
- Judgment is in the alternative:
a. To deliver the property to the party
entitled thereto; or
b. To pay its value in case delivery cannot be
made – if the property is no longer in the
condition in which it should be, the party
entitled to its delivery may refuse to accept
the property (sue on the redelivery bond).

Reference: Civil Procedure Volume II by Dean Riano

 17 | P a g e NOTES IN CIVIL PROCEDURE II
SUPPORT PENDENTE LITE (RULE 61)
SUPPORT PENDENTE LITE
- Is a proceeding where the amount of support is
provisionally fixed by the court in favour of the
person or persons entitled thereto during the
pendency of an action for support or any
applicable principal action.
- Main actions include:
o Action for support
o Proceeding for legal separation
o Proceeding for annulment of marriage
o Proceeding for declaration of nullity of
marriage
o Habeas corpus (David vs. CA 250 SCRA 82)
WHAT CONSTITUTES SUPPORT (Article 194 FC)
- Support comprises everything indispensable for
sustenance, dwelling, clothing, medical
attendance, education and transportation, in
keeping with the financial capacity of the family.
- The education of the person entitled to be
supported referred to in the preceding
paragraph shall include his schooling or training
for some profession, trade or vocation, even
beyond the age of majority
WHO MAY ASK FOR SUPPORT PENDENTE LITE
- By any party, not only the plaintiff, as long as
there are legal grounds to support such
application.
- Article 105 of the Family Code: The following
are obliged to support each other:
a. The spouses;
b. Legitimate ascendants and descendants;
c. Parents and their legitimate children and
the legitimate and illegitimate children of
the latter;
d. Parents and their illegitimate children and
the legitimate and illegitimate children of
the latter; and
e. Legitimate brothers and sisters, whether of
full or half-blood.
f. Brothers and sisters not legitimately
related, whether of the full or half-blood
(Article 106 of the Family Code)
WHEN TO APPLY FOR SUPPORT PENDENTE LITE
a. At the commencement of the proper action or
proceeding; or
b. At any time prior to the judgment or final
order;
COOLING OFF PERIOD
- Refers to the 6-month cooling period for actions
for legal separation
- Not a bar to provisional support (Araneta vs.
Concepcion)s
PROCEDURE FOR APPLICATION OF SUPPORT
PENDENTE LITE
1. A verified application shall be filed, stating the:
a. Grounds for the claim; and
b. Financial conditions of both parties.
Reference: Civil Procedure Volume II by Dean Riano
Bem Jamison
c. Accompanied by affidavits, depositions, or
other authentic documents in support
thereof
Note:
o If the right to support has not been
established, the court cannot grant support
pendente lite. (Francisco vs. Zandueta)
2. Adverse party shall file a verified comment on
the application within five (5) days from service
upon him of a copy of the application and
supporting documents to it. Shall also be
accompanied by affidavits, depositions, or other
authentic documents in support thereof
3. After the comment is filed or after the
expiration of the five (5) days, the application
shall be sent for hearing not more than three
(3) days thereafter.
Note: Support pendente lite cannot be granted
ex parte. Hearing is required.
4. The court decides:
A. IF THE APPLICATION IS GRANTED:
o The court shall fix the amount of money*
to be provisionally paid or such other forms
of support as should be provided.
o Things to be considered:
a. The necessities of the applicant;
b. The resources or means of the adverse
party; and
c. The terms of payment or mode for
providing support
*The amount fixed in the order is only
provisional. It is not final in character and can be
modified depending on the ability of the obligor
to pay for support. (San Juan vs. Valenzuela) ---
THERE IS NO RES JUDICATA IN SUPPORT CASES
B. IF THE APPLICATION IS DENIED:
o The principal case shall be tried and decided
as early as possible.
SUPPORT PENDENTE LITE IN CRIMINAL CASES
- Where civil liability includes support for the
offspring as a consequence of the crime and the
civil aspect thereof has not been waived,
reserved, or instituted prior to its filing.
- When may be availed: During the pendency of
the criminal case. A previous finding of guilt is
not required.
- Who may file: The offended party, her parents,
grandparents, guardian, or the State.
- Where judgment finds accused not liable: The
court shall order the recipient to make a
restitution of what has been received with legal
interest from the date of actual payment.
 18 | P a g e NOTES IN CIVIL PROCEDURE II Bem Jamison

ENFORCEMENT OF ORDER
- If accused does not comply:
a. An order of execution shall be issued by
the court against him motu proprio or upon
motion;
b. He may likewise be held liable for
contempt.
- A third person may obtain a writ of execution
against the person ordered to give support,
provided:
a. There is due notice and hearing in the same
case; and
b. That such person furnished the support to
the applicant because of the refusal/failure
of the person ordered to give support.

RESTITUTION
- When the judgment finds that the person
giving support is not liable: The court shall
order to make restitution of what has been
received with legal interest from actual date of
payment.
- If the recipient fails to return the money: The
person who gave the support may file an action
to reimburse him against the person legally
obliged to give support.

Reference: Civil Procedure Volume II by Dean Riano

 19 | P a g e NOTES IN CIVIL PROCEDURE II
MISCELLANEOUS PROVISIONAL
REMEDIES
WRIT OF AMPARO
1. TEMPORARY PROTECTION ORDER (TPO)
- The court, justice, or judge may, upon motion or
motu proprio, order that the petitioner or the
aggrieved party and any member of his
immediately family be protected by a
government agency or by an accredited person
or private institution capable of keeping and
securing their safety.
2. WITNESS PROTECTION ORDER (WPO)
- The court, justice, or judge may, upon motion or
motu proprio:
a. Issue a witness protection order for a
witness to be admitted to the Witness
Protection, Security and Benefit Program;
b. Refer witnesses to other government
agencies, or to accredited persons or
private institutions if they cannot be
accommodated by the DOJ or if they refuse
the protection of the DOJ.
3. INSPECTION ORDER (IO)
- The court, justice, or judge may, upon verified
motion and after due hearing order any person
in possession or control of a designated land or
other property, to permit entry for the purpose
of inspecting, measuring, surveying, or
photographing the property or ay relevant
object or operation thereon.
- Contents of the motion:
a. Shall state in detail the place(s) to be
inspected.
b. Shall be supported by affidavits or
testimonies of witnesses having personal
knowledge of the enforced disappearance
or whereabouts of the aggrieved party.
- Grounds to oppose motion:
a. National security; or
b. Privileged nature of information.
- If motion is opposed:
o The court shall conduct a hearing in the
chambers to determine the merit of the
opposition.
o Movant must show that the inspection
order is necessary to establish the right of
the aggrieved party.
- If granted, the Inspector Order shall specify:
a. The person or persons authorized to make
the inspection;
b. The time, place, and manner of making the
inspection
c. Other conditions to protect the
constitutional rights of all the parties.
- Validity of the Inspection Order: Five (5) days
after the date of its issuance, unless extended
for justifiable reasons.
Reference: Civil Procedure Volume II by Dean Riano
Bem Jamison
4. PRODUCTION ORDER (PO)
- The court, justice, or judge may, upon verified
motion and after due hearing order any person
in possession, custody or control of any
designated documents, papers, books, accounts,
letters, photographs, objects, or tangible things
or objects in digitized or electronic form, which
constitute or contain evidence relevant to the
petition or the return, to produce and permit
their inspection, copying or photographing.
- Grounds to oppose motion:
a. National security; or
b. Privileged nature of information.
- If motion is opposed:
o The court shall conduct a hearing in the
chambers to determine the merit of the
opposition.
o The court shall prescribe other conditions
to protect the constitutional rights of all the
parties.
PROVISIONAL REMEDIES AVAILABLE TO THE
RESPONDENT IN A PETITION FOR WRIT OF AMPARO
The court, justice, or judge, upon verified motion
and after due hearing, may issue:
1. Inspection Order
2. Protection Order
R.A. 8369 (AN ACT ESTABLISHING FAMILY
COURTS, GRANTING THEM EXCLUSIVE
ORIGINAL JURISDICTION OVER CHILD AND
FAMILY CASES)
1. RESTRAINING ORDER
- In case of violence among immediate members
of the family living in the same domicile or
household, upon filing of the complainant of a
verified application for relief from abuse.
2. TEMPORARY CUSTODY OF CHILDREN
- In all civil actions for the custody of children
3. (A) SUPPORT PENDENTE LITE; (B) DEDUCTION
FROM SALARY; (C) USE OF THE CONJUGAL
HOME AND OTHER PROPERTIES
- In all civil actions for support
R.A. 9372 (HUMAN SECURITY ACT)
1. Seizure or sequestration of assets of certain
persons or entities are authorized including
those of a person suspected of terrorism
(Section 39 of the Human Security Act)
2. The right to travel of the person charged may
be subjected to restrictions even before
judgment under certain conditions (Section 26
of the Human Security Act)
3. The bank deposits of a person charged or
suspected of a crime defined in HSA may be
examined under certain conditions
notwithstanding the Bank Secrecy Law (Section
27 of the Human Security Act)
- Written order of the CA required and shall only
be granted:
a. Upon an ex parte application to that effect
or a law enforcement official who has been
 20 | P a g e NOTES IN CIVIL PROCEDURE II
duly authorized by the Anti-Terrorism
Council;
b. Upon examination under oath or
affirmation of the applicant and the
witnesses he may produce to establish the
facts that will justify the need and urgency
of examining and freezing the bank
deposits.
R.A. 9262 (ANTI-VIOLENCE AGAINST
WOMEN AND THEIR CHILDREN)
PROTECTION ORDER
- An order issued for the purpose of preventing
further acts of violence against a woman or her
child as specified in the law and granting other
necessary relief.
a. Barangay Protection Order (BPO)
- Issued by the Punong Barangay or any available
Barangay Kagawad ordering the perpetrator to
desist from committing certain acts;
- Maybe issued after an ex parte determination of
the basis of the application;
- Personal service by the Punong Barangay or
Barangay Kagawad on the respondent is
required;
- Validity date: Fifteen (15) days after issuance
b. Temporary Protection Order (TPO)
- Issued by the court on the date of filing of the
application after an ex parte determination of
its basis;
- Personal service by the sheriff on the
respondent is required;
- Validity date: Thirty (30) days after issuance
- After TPO issuance, the court shall schedule a
hearing on the issuance of a PPO prior to or on
the date of its expiration.
- Order shall include notice of the date of hearing
on the merits of the issuance of PPO
c. Permanent Protection Order (PPO)
- Issued by the court after notice and hearing.
R.A. 9160 (ANTI-MONEY LAUNDERING ACT
OF 2001) AS AMENDED BY R.A. 9194
1. FREEZING OF MONETARY INSTRUMENT OR
PROPERTY --- FREEZE ORDER
- Issued by the Court of Appeals upon an ex parte
application of the AMLC and after determination
of the existence of a probable cause that a
monetary instrument or property is in any way
connected to an unlawful activity as defined
under the Act;
- Shall be effective immediately;
- Validity date: Twenty (20) days from issuance
unless extended by the court
2. AUTHORITY TO INQUIRE INTO BANK DEPOSITS
Reference: Civil Procedure Volume II by Dean Riano
Bem Jamison
- Upon order issued by any competent court in
cases of violation of the Act after
determination of the existence of a probable
cause that the deposits or investments are
related to an unlawful activity;
A.M. 02-11-12-SC (PROPOSED RULES ON
PROVISIONAL REMEDIES) EFFECTIVE
MARCH 15, 2003
- The following may be issued by the court, motu
proprio or upon application, with or without
hearing, after the receipt of a verified petition
for declaration of absolute nullity of void
marriage, annulment of voidable marriage and
legal separation:
a. Spousal Support
b. Child Support to the common children of the
spouses
c. Child Custody
d. Visitation Rights
e. Hold Departure Order for the child to be
brought out of the country, pending resolution
of the petition and without prior order from the
Court
f. Protection Order
g. Administration of Common Property
A.M. 00-8-00-10-SC (RULES OF PROCEDURE
ON CORPORATE REHABILITATION)
EFFECTIVE JANUARY 16, 2009
STAY ORDER
- Shall direct the staying of the enforcement of
all claims, whether for money or otherwise and
whether such enforcement is by court action or
otherwise, against the debtor, its guarantors
and persons not solidary liable with the debtor.
- Period of issuance of a Stay Order: Within five
(5) days from filing of a petition which is
sufficient in form and substance.
- Shall not cover the following:
a. Claims against letter of credit and similar
security arrangements issued by a third party to
secure the payment of the debtor’s obligations;
b. Foreclosure by a creditor of property not
belonging to a debtor under corporate
rehabilitation;
A.M. 09-6-8-SC (RULES OF PROCEDURE IN
ENVIRONMENTAL CASES) EFFECTIVE APRIL
13, 2010
1. ATTACHMENT
2. ENVIRONMENTAL PROTECTION ORDER (EPO)
3. TEMPORART ENVIRONMENTAL PROTECTION
ORDER (TEPO)
- In case of extreme urgency and that the
applicant will suffer grave injustice and
irreparable injury
- Validity period: Seventy-two (72) hours from
date of receipt of the TEPO by the party
enjoined.
- Within the said period, the court shall conduct a
summary hearing to determine whether the
 21 | P a g e NOTES IN CIVIL PROCEDURE II Bem Jamison

TEPO may be extended until the termination of arbitral tribunal, which the latter cannot
the case. enforce effectively.
- Applicant is exempted from posting of a bond - When may petition be made:
upon issuance of a TEPO. a. Before arbitration is commenced; or
4. PROHIBITION AGAINST TEMPORARY b. After arbitration is commenced, but before
RESTRAINING ORDER (TRO) AND PRELIMINARY the constitution of the arbitral tribunal; or
INJUNCTION c. After the constitution of the arbitral
tribunal and at any time during the arbitral
R.A. 9285 (AN ACT TO INSTITUTIONALIZE proceedings, but at this stage, only to the
THE USE OF AN ALTERNATIVE DISPUTE extent that the arbitral tribunal has no
power to act or is unable to act effectively.
RESOLUTION SYSTEM) - Grounds for issuance of interim measure of
protection:
RULES TO BE OBSERVED ON INTERIM OR a. The need to prevent irreparable injury or
PROVISIONAL RELIEFS: loss;
1. Any party may request that provisional relief be b. The need to provide security for the
granted against the adverse party. performance of any obligation;
2. Such relief may be granted to: c. The need to produce or preserve evidence;
o Prevent irreparable loss or injury; d. The need to compel any other appropriate
o Provide security for the performance of act or omission.
any obligation;
o Produce or preserve any evidence; or
o Compel any other appropriate act or
omission.
3. The order granting the relief may be
conditioned upon the provision of security of
any act or omission specified in the order.
4. Interim relied is requested by a written
application transmitted to the court and the
adverse party.
- Contents: (1) description in detail of the precise
relief; (2) the party against whom the relief is
requested; (3) the grounds for the relief; and (4)
the evidence supporting the request.
5. The order shall be binding upon the parties.
6. Either party may apply within the court for
assistance in implementing or enforcing interim
measure ordered by an arbitral tribunal.
7. A party who does not comply with the order
shall be liable for all damages resulting from
noncompliance, including all expenses, and
reasonable attorney’s fees, paid in obtaining the
order’s judicial enforcement.

A.M. 07-11-08-SC (INTERIM MEASURE OF

PROTECTION UNDER THE SPECIAL RULES
OF COURT ON ALTERNATIVE DISPUTE
RESOLUTION) EFFECTIVE SEPT 1, 2009

INTERIM MEASURE OF PROTECTION

- May be applied for by a party to an arbitration
agreement thru a petition to the court.
- The interim measure of protection that the
court may grant:
1. Preliminary injunction directed against a
party to arbitration;
2. Preliminary attachment against property or
garnishment of funds in the custody of a
bank or a third person;
3. Appointment of a receiver;
4. Detention, preservation, delivery or
inspection of property; or
5. Assistance in the enforcement of an interim
measure of protection granted by the

Reference: Civil Procedure Volume II by Dean Riano