PROVISIONAL REMEDIES (Rule 57-71)

Rule 57: Preliminary Attachment

* Provisional remedies (anciliary/auxiliary) writs and processes available during the pendency of the action may be
resorted to by a litigant to reserve and protect rights and interests therein pending rendition, and for the purpose of
ultimately effecting a final judgment in the case.

PROVISIONAL constituting temporary measures availed of during the pendency of the action.

ANCILIARY incidents in and dependent on the result of the main action.

* When to apply for damages against the attachment bond

a) before trial;
b) before appeal perfected;
c) before judgment becomes executory;
d) in the appellate court for damages pending appeal, before judgment becomes executory.
* When judgment becomes executory, sureties on counterbond to lift attachment are charged and can be held liable
for the amount of judgment and costs upon notice and summary hearing. There is no need to first execute judgment
against obligor before proceeding against sureties.

*Preliminary Attachment

* Claims for damages cannot be subject of independent action except:

a) available even if the recovery of personal property is only an incidental relief sought in the action;
b) may be resorted to even if the personal property is in the custody of a third person;
c) extends to all kinds of property, real or personal or incorporeal;
d) to recover possession of personal property unjustly detained, presupposes that the same is being concealed,
removed, or disposed of to prevent its being found or taken by the applicant;
e) can still be resorted to even if the property is in custodia legis, as long as the property belongs to the defendant, or
is one in which he has proprietary interests, AND with permission of the court.
*Grounds
a) recovery of specified amount of money and damages, except moral or exemplary, where party is about to depart
from the Phils with the intent to defraud creditors;
b) action for money or property embezzled or for willful violation of duty by public officers, officers of corp, agent or
fiduciary;
c) recovery of possession of property (both real and personal) unjustly detained, when the property is concealed or
disposed of to prevent is being found or taken;
d) action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof;
e) action against party who is concealing or disposing of property, or is about to do so, with intent to defraud creditors;
f) action against party who is not a resident of the Phils and cannot be found therein upon who service by publication
can be made.

a) when principal case is dismissed by the trial court for lack of jurisdiction without giving the claiming party
opportunity to prove claim for damages;

* PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICITON (Preliminary Attachment)

- Enforcement of writ of preliminary attachment must be made preceded by or simultaneously accompanied by service
of summons, copy of complaint, application and affidavits for the attachment and the bond upon the adverse party;
BUT the requirement of prior or contemporaneous service of summons shall not apply where the summons could not
be served despite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom, or the
defendant is a non-resident of the Phils or the action is in rem or quasi in rem.
* When preliminary attachment is discharged
a) debtor posts a counterbond or makes requisite cash deposit if attachment to be discharged is with respect to
particular property, counterbond or deposit shall be equal to the value of the property as determined by the court; in all
other cases, amount of counterbond should be equal to the amount fixed in the order of attachment.
* CASH DEPOSIT OF COUNTERBOND SHALL SECURE THE PAYMENT OF ANY JUDGMENT THAT ATTACHING
PARTY MAY RECOVER
b) applicants bond is insufficient or sureties fail to justify;
c) attachment was improperly or irregularly issued;
d) property attached is exempt from execution;
e) judgment is rendered against attaching party;
f) attachment is excessive discharge is with respect to the excess
* Application for discharge may only be filed with the court where the action is pending and may be filed even before
enforcement of the writ so long as there has been an order of attachment.

b) when damages sustained by a third person not a party to the action.

Rule 58: Preliminary Injunction
* Preliminary injunction distinguished from Prohibition
Preliminary Injunction

Prohibition

Generally directed against party to the action but may be

against any person

Directed against a court, tribunal, or person exercising

judicial powers

Does not involve the jurisdiction of the court

May be on the ground that the court against whom the

writ is sought acted without or in excess of jurisdiction

May be main action itself or just a provisional remedy in

the main action

Always a main action

* Grounds for Preliminary Injunction

a) plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts (latter is
preliminary mandatory injunction);
b) the commission of acts or non-performance during pendency of litigation would probably work injustice to the
plainitiff;
c) defendant is doing or about to do an act violating plaintiffs rights respecting the subject of the action and tending to
render judgment ineffectual.
* Injunction may be refused or dissolved when:
a) complaint is insufficient;
b) defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable injury if
injunction granted or continued while plaintiff can be fully compensated;
c) plaintiffs bond is insufficient or defective.
* No preliminary injunction or TRO may be issued without posting of bond and notice to adverse party and hearing.
* PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:
When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or
any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after NOTICE to and IN THE
PRESENCE of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or
contemporaneously accompanied by service of summons, together with a copy of the complaint and the applicants
affidavit and bond, upon the adverse party in the Phils; BUT the requirement of prior or contemporaneous service of
summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a
resident of the Phils temporarily absent therefrom, or the defendant is a non-resdent of the Phils.

* difference with principle in prelim attachment in attachment, the principle applies only in the implementation of
the writ, while in applications for injunction or TRO, this principle applies before the raffle and issuance of the writs or
TRO.
* TRO good for only 20 days from service; 60 days for CA; until further orders from SC.

- replevin bond is only intended to indemnify defendant against any loss that he may suffer by being compelled to
surrender the possession of the disputed property pending trial of the action. Thus, surety not liable for payment of
judgment for damages rendered against plaintiff on a counterclaim for punitive damages for fraudulent or wrongful
acts committed by the plaintiffs which are unconnected with the defendants deprivation of possession by the plaint

* TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave injustice and irreparable
injury. Good for 72 hours from issuance, within which judge must comply with service of summons, complaint, affidavit
and bond, and hold summary hearing to determine whether the TRO should be extended for 20 days. In no case can
TRO be longer than 20 days including 72 hours.
Rule 59: Receivership

Special Civil Actions

Rule 62: Interpleader
Q. Why are these called Special Civil Actions?
A. Because of their nature, there are special procedures to follow.

* When receiver may be appointed:

a) party has an interest in the property or fund subject of the action and such is in danger of being lost, removed or
materially injured;

The first of this special civil action is the case of an interpleader.

b) action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially
injured and that its value is probably insufficient to discharge the mortgage debt, OR that the parties have stipulated
in the contract of mortgage;

Q. What is the concept of an interpleader?

c) after judgment, to preserve the property during the pendency of the appeal, or to dispose of it, or aid in execution
when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy
judgment, or to carry out the judgment.

A leased an apartment to B. So, pursuant to this agreement, B have been occupying this apartment paying the rentals.
After the lease period has run, lets say, six (6) months, here now surfaces C. C said, B does not pay anymore the
rentals to A, this apartment is mine. Pay to me. B is in a dilemma. If he (B) pays to A and it turns out later that C has a
better right, he runs the risk of paying twice. If he pays to C, he runs the risks of paying again to A because C may not
have the right.

d) when appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property
in litigation.
* When receivership may be denied/lifted:

A.
Example:

Q. If you were B, what is the remedy available to you, so that regardless of who is the party entitled to receive, you
will be protected?

a) appointment sought is without sufficient cause;

b) adverse party files sufficient bond for damages;
c) applicant or receivers bond is insufficient.

A. File a suit for interpleader. B vs. A and C. Why? So that A and C can fight it out in this case. So, B initiates the
complaint against two (2) people who do not want to go to court and litigate.
So, this process of interpleader, A and C are compelled to fight each other. That is the concept of interpleader.

* Both the applicant for receivership and the receiver appointed must file separate bonds.
* In claims against the bond, it shall be filed, ascertained and granted under the same procedure as Section 20, Rule
57, whether it is damages against the applicants bond for the unlawful appointment of the receiver or for enforcing the
liability of the sureties of the receivers management (in the latter case, no longer need to file a separate action).

Sec. 1 Rule 62
Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no
interest whatever is the subject matter, or an interest which in whole and 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.

Rule 60: Replevin

We now have this complaint by B against A and C.
* Replevin

Q. What is the prayer of B here?

a) available only where the principal relief sought in the action is the recovery of possession of personal property;
b) can be sought only where the defendant is in the actual or constructive possession of the personal property
involved.
c) extends only to personal property capable of manual delivery;
d) available to recover personal property even if the same is not being concealed, removed, or disposed of;
e) cannot be availed of if property is in custodia legis, as where it is under attachment, or was seized under a search
warrant or distrained for tax assessment.

A. That A and C be directed to interplead with each other. Meaning, that A and C should fight it out and have this
matter of who is entitled to the rental. Actually, it is not B who is fighting A or C. It is A and C who are fighting each
other.

* Defendant entitled to return of property taken under writ if:

a) he seasonable posts redelivery bond
b) plaintiffs bond if insufficient or defective
c) property is not delivered to plaintiff for any reason.

Q. But who initiated the fight between the two (2)?

A. B.
Q. What now is the procedure to be followed by the court when this interpleader action was filed?
A. Actually, A and C will also be summoned under Rule 14. But with this difference, accompanying the summons is
an order of the court.

Sec. 2 Rule 62
Upon 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.
So, the sheriff now serves on A and C the summons. Together with the summon is that order of the court directing A
and C to interplead with one other. So, A will file his answer.
Q. Who will be furnished copy of the answer of A?
A. A will furnish B and C.
Q. C will file his answer. Who will be furnished with the copy of the answer of C?
A. A and B.
Q. Do you now see why this is a special civil action?
A. In ordinary civil action, do the defendants furnish each other copies of their answers? No. But here, the
defendants furnish each other. Why? Because they are the ones litigfating.
So, insofar as A is concerned, the plaintiff against him is C. Insofar as C is concerned, A is the plaintiff against him.
Q. May a motion to dismiss the action for interplead be filed by A and C? Can A and C avail of Rule 16, before they
file their answer?
(coz remember under Rule 16, the motion to dismiss can be filed only before the answer has been filed.

A. Yes. The parties in an interpleader action may file counterclaim, cross-claims, third-party complaints and
responsive pleadings thereto as provided by these Rules.
So, there is nothing special about this, except with this provision where they have to furnish each other with copies of
their pleadings.
Q. What now is the disposition of the court with respect to these cases?
A. After the pleadings of the conflicting claimants have been filed and pre-trial have been conducted in accordance
with the rules, the court shall proceed to determine their respective rights and adjudicate their counterclaims.
It means to say following the pre-trial, trial proper will now proceed.
After the court has conducted the pre-trial and received the evidence, the court will now determine who between A and
C is entitled to this rental. And of course, will adjudicate the counterclaims. This is how Rule 62 works.
RENE NOTES:
INTERPLEADER
1. ancillary action

2. presupposes that plaintiff has no interest in the subject

matter of the action or has interest therein in whole or in
part which is not disputed by the other parties

2. proper in any of the four situations: persons having (a)

legal interest in the matter of litigation, or (b) success of
either of the parties, or (c) an interest against both, or (d)
is so situated as to be adversely affected by a
distribution or other disposition of property in the custody
of the court or of an offer thereof, (Rule 19, Sec. 1)

3. defendants are being sued precisely to interplead

them

3. defendants are original parties to the pending suits

This question is answered by this Sec. 4 Rule 62.

A. Section 4 Rule 62
Within the time of filing an answer, each claimant may file a motion to dismiss on the ground of impropriety of the
interpleader or on other appropriate grounds specified in Rule 16. 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 shall not be less than five (5)
days in any event, reckoned from notice of denial.

INTERVENTION

1. an original action

Rule 63: Declaratory Reliefs and Similar Remedies

Q. What do you notice with respect to the ground of a motion to dismiss an interpleader action and a motion to
dismiss in an ordinary civil action?
A. In an ordinary civil action, the impropriety of the action is not a ground for a motion to dismiss. Under Rule 62, it is.
So, the grounds for a motion to dismiss under Rule 62 are more encompassing than the ground of a motion to dismiss
under Rule 16.

Q. What is the subject matter of a declaratory relief?

A. A person may be interested in a law, (he may be affected by a law), he may be affected by an instrument. He may
want to know what his rights are or what his obligations are, under a written instrument or a law.

Sec. 5 Rule 62 covers that situation already mentioned earlier.

Q. Can you now bring an action in court to determine what his rights are, what his obligations are under the law or
under a written document?

Sec. 5 Rule 62

A.

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 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.

Example:

The parties in an interpleader action may file counterclaims, cross-claims, third-party complaints and
responsive pleadings thereto, as provided by these Rules.
After A and C have been summoned, they will file their answer serving the plaintiff B and other defendants of the copy
of the answer.
In the answer of A and C, each will assert his right to the rental in this example. He will give his reasons why the rental
should be paid to him.
Q. May any of them A and C file also a counterclaim, a cross-claim?

A and B entered into an agreement. There are certain provisions here, which confer on A certain rights and imposes
him certain obligations. There are also provisions here, which impose on B certain obligations and also certain rights.
But in the case of A, these provisions are vague, he cannot quite comprehend it. And he (A) fears that there may be a
litigation arising out of it.
Q. Can he now file an action in court against B for the purpose only of obtaining a declaration from the court on what
his rights are, on what his obligations are, on what the rights of B are, or there is a law or ordinance, say regulating
sale of liquor, A is a liquor distributor, this law affects him so he wants to know what his rights are, what his obligations
are under this law, can he now file an action against the authorities to determine what his rights are or his obligations
are under this ordinance?
A. Yes. That is the concept of a declaratory relief.

Take note that a court is supposed to determine actual controversies. As a rule, a court is not required to give advisory
opinions. It cannot settle abstract matters. It settles only actual conflicts.

A. For instance, A, C now delivers to B what A was supposed to deliver, and B refuses, may he (B) be held liable?

But under the law on declaratory relief, the court is actually called upon to render an opinion in a case involving these
documents agreed upon. Of course, that can be done only before there has been a breach of the written document.

Q. What is the remedy here?

Q. What is the situation contemplated by Rule 63?

A. A person whose interest thereunder is a deed, a will, a contract or any other written instrument under a law, an
ordinance, executive order, his rights under this law or instruments are affected.
The provisions of the written instrument or the law may be vague giving rise to uncertainties. So, the possibility of a
suit arising out of this vagueness of this instrument or this doubtful character, the instrument, because if you will not
determine this, there will be a suit that will arise.

A. B here may file an action for declaratory relief against C and A.

Q. What will be the prayer now of B here?
A. He will now pray that the court interpret this contract involved here and find out what his rights are, what his
obligations are under this contract of C and A. Does this contract bind him or it does not bind him?
So, before there is any breach by A and B or C on this contract, then B can go to the court to declare what his rights
are, what his obligations are, under this contract.

Q. So, what is the idea behind the suit now that the party in this written instrument may file?
A. The idea here is to secure from the court a declaration as to the validity of the instrument or of the law.
So, in the case then of the declaratory relief, the idea of the party filing the case is to know before there is a breach of
the law on the agreement or written instrument, what his rights are, what his obligations are, under the contract or
under the written agreement or under the instrument or under the law.

Example:
You will notice that this case here illustrates that first part of the rule where a party filing the case is interested under a
contract.
The other subject matter of a rule on declaratory relief, is a law, an ordinance or an executive order which affects the
rights of a person.

So, in other words, he wants to know in advance what his rights are. So he goes to the court and in effect to ask for an
opinion. We said that the court, does not as a matter of course render an opinion on abstract matters or hypothetical
cases. But this is a sort of an exception to this. That is why, under this law the court may or may not agree to entertain
an action for declaratory relief.

The municipality of X for instance which passed an ordinance on taxes, on business establishments selling liquor.
Here is Y, who is a license dealer of liquor. This law, affects him, one way or the other. He doesnt know what his rights
are, now he is supposed to pay, lets say, taxes which are much higher than the amount he is presently paying. But he
is in doubt whether this is applicable to him or not applicable to him because of the vagueness of the law.

It is being ask merely to interpret an instrument or a law or it may be asked only to declare what would be the proper
construction or interpretation of the law or of the written instrument.

Q. What is he allowed to do before there is any breach of this law by him?

There are however, suits that may be brought under the provisions of these rules on declaratory relief, which the
courts cannot decline to entertain. These are the following actions:

A. He can file an action against the municipality of X for declaration of whether this law is valid or not. This is his
main purpose. To find out whether he is liable under this or he is not liable. This is the sole purpose.

1)

an action to quite title to a property or to remove a cloud over a property;

2)

an action for the reformation of an instrument;

3)

an action for consolidation of ownership where the subject matter of the suit involves a contract of sale
with right to repurchase.

These three (3) actions mentioned, when brought under the provisions on Declaratory Reliefs cannot be dismissed by
the court. It must have to entertain. But other cases of declaratory relief may be denied due course by the court.

Q. Who will be the parties against whom, in our example, A, which affected by that law or contract or ordinance?
Who will be the defendants?
A. The law says, all those persons whose rights are affected by this instrument must have to be made parties. And
those who are not made parties are not affected by whatever judgment may be rendered in a case. Although there is a
decision cited in the book of Moran to the effect that when a necessary party is not impleaded, then a declaratory relief
petition may be filed. Why? Because the party who is necessary can always later on question an instrument or the law
in a separate proceeding and so this declaratory relief will not put an end.

For this declaratory relief rules to apply, what must be established is the concurrence of all these circumstances:
1)

There is an instrument; there is a will; there is a written contract or there is law

2)

This written instrument or this law affects the right of a person;

3)

A person wants this law or this instrument to be interpreted, to be given a construction;

Let us now assume that the petition for declaratory relief is filed. The court refuses to give it due course. Ground for
instance, whatever judgment the court may render will not put an end to the uncertainty that brought about the
controversy. So, it will be useless. So, the court can decline.

4)

At the time the suit is brought, there must be a threatened suit that may arise out of it; and

On the other hand, the court may opt to consider it so it will hear the case. It is as if it were an ordinary civil case.

5)

This controversy is justifiable.

Q. What will be the judgment?

Example: (how this rule works)

Here is a contract entered into between A and B. Let us assume that in our contract, that A undertakes to deliver
supplies to B. A was supposed to load this supplies on a ship belonging to A for delivery to B. This contract calls for a
ten (10) year period. On the 9th year of the period, A Assigns his rights under this contract to C. C now is the
transferee. Pursuant to this contract of A and C now says to B, B beginning this 10 th year, I will now be the one to
supply you the materials which A under the contract supposed to deliver to you.
Q. Is B bound by this contract?

A. It will simply be a declaration of whatever or not this law is valid or not. It will simply declare what rights of A has
under the contract. What obligations he has. That is all!
Q. Is there anything in the judgment that can be executed?
A. No. Why? Because this is merely declaratory. It does not resolve an actual controversy. It merely declares, here
are the rights, here are the obligations. It cannot be enforced by execution because there is nothing to enforce.
The law says, if the petition was entertained by the court but while the case is pending in court, there is a violation of
the agreement, or there is a violation of the law, there is a breach.

Q. Can the petition for declaratory relief be maintained?

A. No more.

In one case, the suit was filed by A against B. the judgment was rendered against B. B now filed an action for
declaratory relief based on this judgment. In other words, he wanted to find out what his rights are under that
judgment.

Lets assume in this example of A filing the action against the Municipality to contest the validity of the tax ordinance.
When the case was pending, plaintiff A paid the taxes.

Q. Is the remedy of a declaratory relief petition, proper in this case?

Q. Can this declaratory relief be continued?

A. No. Why not? First, there are other remedies available to A to find out what his rights are. For instance, he could
have filed a motion for clarificatory judgment. If he was in doubt as to what his rights are, he could have filed a motion
in court to clarify the judgment. There is another remedy. He could have appealed from the judgment. In other words,
this petition for declaratory relief is available only when there is no other available remedy against a written instrument
or against a law. So, when there are still available remedies, this cannot be resorted to.

A. No more. It can no longer be continued.

Q. What will happen then?
A. The court will now treat this as an ordinary civil action. So, it will now try the case and render a judgment which
can be enforced.
So, in our example here, if taxpayer paid the taxes while the case is pending, there is already a breach of the law
sought to be clarified. So, the court can no longer simply declare what are the rights and obligations. The court will
now resolve with finality the rights of the plaintiff and his obligations. And the judgment there can be enforced by
execution. But in a case of validity or invalidity, there is nothing that it can be enforced. Because it is merely a
statement, this is your right, this is your obligation, etc
So, this in essence is the concept of Declaratory Relief.
Lets go back to the cases mentioned which can be filed under this provision on rules on declaratory relief namely:

But of course, there is one compelling reason why this petition was dismissed and that is the rule on res
judicata. That has been already resolved with finality. It cannot be subject of another litigation.
RENE NOTES:
Requisites for Declaratory Relief
1. justiciable controversy
2. adverse claim between real parties in interest
3. subject matter is a written instrument or a statute
4. relief sought is merely a determination of the rights and duties
5. there must be no breach or violation of instrument or statute
6. no other available or sufficient remedy

1)
an action to quite title to property or to remove a cloud on a property; or
2)
an action for reformation of an instrument; or
3)
an action for consolidation of ownership.
These cases cannot be declined to be entertained by the court. It must have to decide those cases.

GR: Declaratory relief is available BEFORE there is actual breach or violation of an instrument or statute.

Since the subject of the petition for declaratory relief is a written instrument or a law or an ordinance.

2. not objected to by the adverse party and the court has rendered judgment after full blown trial

Exceptions:, declaratory relief may still be availed even if there is breach or violation IF:
1. it concerns future application of the instrument or law [Gomez vs. Palomar (25 SCRA 827)] or

Rule 65: Certiorari, Prohibition and Mandamus

Q. Can there be an action for declaratory relief to declare that a certain person is or is not a Filipino citizen?
A. No. Why? Because an action of this nature is not based on any document, it is not based on any written
agreement.
In one case, in 1941 when war was about to break, X went to the office of the municipal treasurer of his town and
registered himself as a Chinese citizen. After the war, he now instituted an action for declaratory relief against the
government.

There are two (2) types of certiorari. One, as an appealed remedy from a final judgment or order of for instance, the
RTC ---------------------- judgment and there is an appeal therefrom on a question of law, the remedy is certiorari under
Rule 45, not a certiorari under Rule 65.
The judgments of the Sandiganbayan may be appealed to the SC. The appeal is by certiorari under Rule 45.
The judgment of the CA may be appealed to the SC. The remedy is certiorari under Rule 45.

Q. What was his purpose here?

A. To serve a declaration that he is a Filipino.

So, it is in this sense that in this (Rule 45) certiorari is not the certiorari mentioned in Rule 65 because Rule 65 does
not contemplate an appeal.
To better have an idea of what Rule 65 covers we may have this situation.

In his petition he alleged that because of his fear, he registered himself as a Chinese citizen. Nevertheless, his having
registered himself as a Chinese notwithstanding, he always considered himself as a Filipino. So that he now wants
that he be declared a Filipino citizen. The petition was dismissed outrightly.

Example:

Q. Could the petition for declaratory relief be validly filed to secure a declaration that a person is a Filipino citizen?

Q. Can you appeal if you were B from this order denying your motion to dismiss?

A. First, there is a written instrument, which is the basis of this petition. The documents, which is the basis of this
petition. The documents, which he signed when he registered himself as a Filipino does not constitute a written
agreement. Why? Because that was a unilateral act on his part. No one is interested in that document which he
executed except himself. So, there can possibly be no question of doubt arising from that unilateral act.

A. Look the order of dismissal is merely interlocutory. You cannot appeal from an interlocutory order. This is clear in
Sec. 1 (c) of Rule 41. But definitely, the order of denial is wrong. So, if you do not correct this error, and you are B, you
will go to a process of getting this case heard and decided by the MTC. You could just imagine the waste of time,
money and effort if the proceedings will continue until terminated. Why? Any judgment rendered by the MTC here will
be void.

A sued B in the MTC for nullity of marriage. B here filed a motion to dismiss on the ground of lack of jurisdiction. The
motion is denied. He then said, No, the MTC has jurisdiction.

Q. What is the remedy here if you cannot appeal?

A. Under Rule 65, B may question the order denying the motion to dismiss.
The remedy could be a petition for certiorari.
RENE NOTES:

EXCEPTION: If after judgment an appeal has been perfected, a petition for certiorari relating to certain incidents
therein may prosper where the appeal does not appear to be the plain, speedy and adequate remedy. Hence, in this
light, appeal and certiorari are remedies that does not exclude each other. (Lansang vs. CA, 184 SCRA SCRA 230)
* Mere filing of petition for certiorari under this rule will not stay execution of judgment. Preliminary injunction must be
sought.

* In a petition for certiorari, the court may order dismissal of the complaint because it is part of the incidental relief
(Newsweek vs. IAC)
Requisites of Certiorari:
1. there must be a controversy
2. the respondent is exercising judicial or quasi-judicial functions
3. the respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion
4. there must be no other plain, speedy and adequate remedy
Requisites of Prohibition:
1. there must be a controversy
2. the respondent is exercising judicial or quasi-judicial or ministerial functions
3. the respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion
4. there must be no other plain, speedy and adequate remedy
Requisites of Mandamus:
1. there must be a clear legal right or duty
2. the act to be performed must be practical within the powers of the respondent to perform such that if the writ of
mandamus was issued, he can comply with it, or else the essence will be defeated
3. respondent must be exercising a ministerial duty a duty which is absolute and imperative and involves merely its
execution
4. duty or act to be performed must be existing correlative right will be denied if not performed by the respondents
5. no plain, speedy and adequate remedy in the ordinary course of law
* A writ of certiorari can never be issued by an RTC against an administrative agency because an administrative
agency when exercising quasi-judicial functions is considered as of the same rank as the RTC. However, a writ of
prohibition may be issued by the RTC against administrative agencies only when what is sought to be prohibited is a
ministerial function but not quasi-judicial function.
* The jurisdiction of the Sandiganbayan over certiorari proceedings is only in aid of its appellate jurisdiction.

Purpose of the writ.

CERTIORARI

PROHIBITION

MANDAMUS

*Intended as a corrective
remedy

Prevent the commission or

carrying out of an act

Intended
to
compel
performance of an act
desired
Ministerial act

*Annul and
proceeding
Act sought
controlled.
With
respect
respondent.

to

modify

be

Discretionary act

Discretionary
ministerial act

the

Exercising judicial and

quasi-judicial function

Judicial/or
function

and
non-judicial

Judicial and/or
judicial function

non-

* If a motion for reconsideration or new trial is filed the period shall not only be interrupted but another 60 days shall
be given to the petitioner. (SC Admin. Cir. 002-03)
Rule 66: Quo Warranto
Quo Warranto A proceeding or writ issued by the court to determine the right to use an office, position or franchise
and to oust the person holding or exercising such office, position or franchise if his right is unfounded or if a person
performed acts considered as grounds for forfeiture of said exercise of position, office or franchise. Quo warranto may
also be used when an association acts as a corporation within the Philippines without being legally incorporated or
without lawful authority so to act.
QUO WARRANTO

MANDAMUS

Designed to try the right or title to the office, the right to

the office itself is disputed

Applicable only in cases where the right to the office is

NOT in dispute

Grounds for Dismissal of Petition:

1. patently without merit
2. prosecuted manifestly for delay
3. questions raised are too unsubstantial to warrant further proceedings
* As a GENERAL RULE, a motion for reconsideration is an essential precondition for the filing of the petition for
certiorari as a form of a plain, speedy, and adequate remedy. Its purpose is to give the court a quo the opportunity to
correct itself. EXCEPT:
1. if the assailed judgment/order is a patent nullity
2. when there is extreme urgency
3. if the issue has been raised and promptly passed upon by the court
4. if the issue is purely a question-of-law
5. if for public purpose
6.if suggested by the court a quo
GENERAL RULE: If after judgment the petition for certiorari is availed of when appeal is plain, speedy and adequate
remedy then the petition must fail for certiorari may not be resorted to as a substitute for appeal, in such a case appeal
is deemed abandoned.

Quo Warranto in Electoral Proceeding

Quo Warranto in Electoral Proceeding

- To contest the right of an electoral public officer to hold

public office.

- prerogative writ by w/c the govt. can call upon any

person to show by what title he holds a public office or
exercises a public franchise

- an electoral proceeding under the Omnibus Elections

Code for the exclusive purpose of impugning the election
of a public officer on the ground of ineligibility or
disqualification to hold the office

- three grounds: usurpation, forfeiture, or illegal

association

- petition must be filed within 10 days from the

proclamation of the candidate

- presupposes that the respondent is already actually

holding office and action must be commenced within one
year from cause of ouster or right of petitioner to hold
office arose

- may be filed by any registered candidate for the same

office and, who, even if the petition prospers, would not
be entitled for that office.

- the petitioner must be the government or the person

entitled to the office and who would assume the same if
his action succeeds.

b) buyer bought the property in good faith

Rule 67: Expropriation
- All properties may be expropriated except:
1. Money
2. Choses in action
* When is expropriation proper?
1. When the owner refuses to sell
2. When he agrees to sell but an agreement as to price cannot be reached
*Purpose of Preliminary Deposit under Sec. 2
1. provide damages if court finds plaintiff has no right to expropriate
2. advance payment for just compensation

- To prevent this, the mortgagee must annotate a notice of lis pendens in the certificate of title so that subsequent
buyer(s) have notice.
* Instances where Court cannot render Deficiency Judgment
1. Recto law
2. Non-resident mortgagor unless there is attachment
3. Sec. 7 Rule 86 when mortgagor dies, the mortgagee must file his claim with the probate court
4. Third person owned the property mortgaged but not solidarily liable with the debtor
JUDICIAL FORECLOSURE

EXTRAJUDICIAL FORECLOSURE

Requires court intervention

No court intervention necessary

* Only an ANSWER is allowed under Sec. 3 Rule 67, no other responsive pleadings are allowed

There is only an equity of redemption

Right of redemption exists

* Declaration of Default

Alternative remedy to personal action for the amount due

to satisfy mortgage debt

Proper only when provided for in the contract

- The defendant cannot be declared in default. Failure to file an answer would result to the courts judgment on the
right to expropriate without prejudice to the right to present evidence on just compensation.
* When is Title Vested in Expropriation:
-

if personal property, upon payment of just compensation (Sec. 10)

if real property, upon registration (Sec. 13)

STAGES IN EXPRORIATION

EQUITY OF REDEMPTION

RIGHT OF REDEMPTION

- right of the defendant mortgagor to extinguish the

mortgage and retain ownership of the property by paying
the debt w/in 90-120 days after the entry of the judgment
or even after the foreclosure sale but prior to
confirmation

- right of the debtor, his successor in interest or any

judicial creditor or judgment creditor of said debtor or any
person having alien on the property subsequent to the
mortgage or deed of trust under which the property is
sold to redeem the property w/in one year from the
registration of the Sheriffs certificate of foreclosure sale

- governed by Rule 68

- governed by Secs. 29-31 of Rule 39

1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of the
exercise in the context of the facts involved, and
2. Determination of JUST COMPENSATION.
* When may plaintiff enter into possession of property?

JUDGMENT
If actual partition of property is
made

1. Upon filing of complaint, serving notice to defendant and after depositing of assessed value of property for taxation
purposes with authorized government depository (Section 2)
2. Upon payment or tender of compensation fixed by the judgment and payment of the costs by plaintiff (Section 10)
Rule 68: Foreclosure of Real Estate Mortgage
*Effect in the Encumbrancer is not Impleaded
a. his equity or right of redemption is not affected or barred by the judgment of the court (Sunlife Insurance vs. Diez)

CONTENTS OF JUDGMENT
The judgment shall state definitely:
(1) by metes and bounds and
adequate description,

EFFECT OF JUDGMENT
To vest in each party to the act, in
severally the portion of the estate
assigned to him.

(2) the particular portion of the

estate assigned to each party
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:

If the property is sold and the sale is

confirmed by the court

The judgment shall state: 1. the

name of the purchaser(s), and

b. his right is not affected because he is merely a necessary party not an indispensable party

1. the fact of such payment, and

2. the assignment of the real estate
to the party making the payment

2. a definite description of the

parcels of the real estate sold to
each purchaser

c. the remedy of the senior encumbrancer is to file an INDEPENDENT proceeding to foreclose the right to redeem by
requiring the junior encumbrancer to pay the amount stated in the order of execution or to redeem the property in a
specified time

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
To vest the real estate in the
purchaser(s)
making
the
payment(s), free from the claims of
the parties to the action.

Two (2) Issues in an Action for Petition

*Remedy of Mortgage against the Buyer of the Mortgage Property:

1. Whether or not a co-ownership exists

- Mortgagees can substitute or implead the buyer. (Sec. 19 Rule 3)

2. How to actually partition the property

However, this rule shall not apply if:

a) the property is covered by the Torrens System;

* The appointment of Commissioners is mandatory unless there is an extra-judicial partition between the parties.

2. appeal of plaintiff is prima facie meritorious, upon motion of plaintiff within 10 days from perfection of appeal.
Rule 70: Forcible Entry and Unlawful Detainer
Three (3) Kinds of Action for Recovery of Possession
ACCION INTERDICTAL

ACCION PUBLICIANA

ACCION REINDIVICATORIA

*summary action for the recovery of

physical possession where the
dispossession has not lasted for
more than one year.

*a plenary action for the recovery

of the real right of possession has
lasted for more than one year.

*an action for the recovery of

ownership w/c necessarily includes
the recovery of possession.

*The doctrine of tolerance applies only if possession is lawful from the start. In short said doctrines applies only to
unlawful detainer cases and not to forcible entry because:
1. the violation of the right in forcible entry authorizes speedy redress;
2. if a forcible entry is allowed only after a number of years then it may well be that no action for forcible entry can
really prescribe. (Munoz vs. CA, 214 SCRA 216)

*ejectment proceeding under Rule

70, either forcible entry or unlawful
detainer
*All cases of forcible entry and
unlawful detainer irrespective of the
amount of damages or unpaid
rentals sought to be recovered
should be brought to the MTC.

- If there is no formal contract between parties; there can still be unlawful detainer because ejectment considers
implied contracts. Possession by tolerance creates an implied promise to vacate the premises upon the demand of the
owner: (Peran vs. CFI of Sorsogon)

*RTC has jurisdiction if the value of

the property exceeds P20,000
outside Metro Manila; P50,000
within Metro Manila.

*RTC has jurisdiction if the value of

the property exceeds P20,000 outside
Metro Manila; P50,000 within Metro
Manila,

*MTC has jurisdiction if the value of

the property does not exceed
P20,000 outside Metro Manila;
P50,000 within Metro Manila

*MTC has jurisdiction if the value of

the property does not exceed P20,000
outside Metro Manila; P50,000
within Metro Manila

FORCIBLE ENTRY

UNLAWFUL DETAINER

*possession of the land by the defendant is unlawful

from the beginning as he acquires possession by Force,
Intimidation, Strategy, Threat or Stealth (FISTS)

*possession is inceptively lawful but it becomes illegal by

reason of the termination of his right to the possession of
the property under his contract w/ the plaintiff

*no previous demand for the defendant to vacate the

premises is necessary

*demand is jurisdictional if the ground is:

*Questions to be resolved in an action for forcible entry are:

First, who had actual possession over the piece of real property?
Second, was the possessor ousted therefrom within one year from the filing of the complaint by force, threat, strategy
or stealth?
Third, does the plaintiff ask the restoration of possession? (Dizon vs. Concina)
* The court can award damages in ejectment cases provided the damages refer only to:
a. the fair and reasonable value of the use and enjoyment of the property or the rent arising from the loss of
possession;
b. arrears;
c. liquidated damages since they are already part of the contract

Rule 71: CONTEMPT

1. non-payment of rentals, or
2. failure to comply with lease of contract

*the plaintiff must prove that he was in prior physical

possession of the premises until he was deprived thereof
by the defendant

*the plaintiff need not have been in prior physical

possession

*the 1 year period is generally counted from the date of

actual entry on the land

*period is counted from the date of last demand or last

letter of demand

DIRECT CONTEMPT

INDIRECT CONTEMPT

*summary in nature

Punished after being charged and hearing

GROUNDS:

GROUNDS:

a) misbehavior in the presence of or near a court as to

obstruct or interrupt the proceedings

a) misbehavior of an officer of a court in the performance

of his official duties or in his official transactions.

b) disrespect towards the court

b) Disobedience of or resistance to a lawful writ, process,

order, or judgment. Unauthorized intrusion to any real
property after being ejected;

b. Comply with the condition of the lease AND Vacate

c) Offensive personalities towards others.

c) Any abuse or any unlawful interference w/ the

proceedings not constituting direct contempt

*Judgment on Ejectment Proceeding are Immediately Executory Unless the Defendant:

d) Refusal to be shown or to answer as witness or to

subscribe an affidavit or deposition.

Tenor of Demand:
a. Pay AND Vacate; or

(1) perfects his appeal,

(2) files sufficient superseades bond to pay the rents, damages and costs occurring down to the time of judgment
appealed from; and
(3) deposits with the appellate court the amount of rent due from time to time under the contract or in the absence of a
contract, the reasonable value of the use and occupation of the premises on or before the 10 th day of each succeeding
month or period.
* However the RTC may issue a writ of preliminary mandatory injunction to restore plaintiff in possession if the court is
satisfied that:
1. defendants appeal is frivolous or dilatory, or

d) Any improper conduct tending to degrade the

administration of justice.
e) Assuming to be an attorney or an officer of the court
w/o authority.
f) failure to obey a subpoena
g) Rescue, or attempted rescue, of a person or property
in the custody of an officer.

If committed against:

If committed against:

a. RTC fine not exceeding P2,000 or imprisonment not

exceeding (10) days or both

a. RTC fine not exceeding P30,000 or imprisonment

not exceeding 6 months or both.

b. MTC fine not exceeding P200 or imprisonment not

b. MTC fine not exceeding P5,000 or imprisonment not

exceeding one (1) day, or both.

exceeding (1) month or both

*Remedies to Challenge Contempt Judgments:

Direct Contempt
- The person adjudged in direct contempt may avail himself of the remedies of certiorari or prohibition. The execution
of the judgment shall be suspended pending resolution of the petition, provided such person files a bond and
conditioned that he will abide by and perform the judgment should the petition be decided against him.
Indirect Contempt
- The person adjudged for indirect contempt may appeal such judgment or final order to the proper court as in criminal
cases. The execution of the judgment shall NOT be suspended until a bond is filed by the person adjudged in
contempt.
-The judgment against a person adjudged to be in contempt is immediately executory and can be stopped only by
filing a bond.