Case of Bañez vs Bañez; Santos vs COMELEC

Q: Again, what are the requirements of Execution Pending Appeal?

A:
1. There must be a motion filed either in the court of origin if the original record is still there or in the
appellate court if the same has already been transmitted and court of origin has already lost its
jurisdiction;
2. Based on the grounds of “good reason”;
3. The good reason must be stated in the special order.

In the case of Far East Bank vs Toh Sr., the Supreme Court ruled that old age constitutes good reason. But
as you would see, the counsel therein is no other than the First Gentleman Mike Arroyo.

While in Santos vs COMELEC, the Supreme Court held that a valid exercise of the discretion to allow
execution pending appeal requires that it should be based upon good reasons to be stated in a special order.
The following constitute good reasons and a combination of two or more of them will suffice to grant execution
pending appeal:
1.) Public interest involved or will of the electorate;
2.) The shortness of the remaining portion of the term of the contested office; and
3.) The length of time that the election contest has been pending.

Q: To whom the Writ of Execution is directed?

A: To the Sheriff, not to the Clerk of Court. In the case of Quitalag, the sheriff may be liable for contempt of
court but not the parties who did not comply with the Writ of Execution because precisely the Writ of Execution
is addressed to the sheriff.

Section 27, Rule 39

Q: If a Mercedes Benz was sold at auction to satisfy a judgment. When it may redeem?
A: It cannot be redeemed because redemption applies only to Real Property wherein a deed of sale was
executed.

Q: What if the Judgment Obligee purchases the property, who may redeem the property?
A:
1. The judgment obligor or his successor in interest; and
2. A redemptioner.

Q: Who is a redemptioner?
A: A creditor who has a lien by virtue of an attachment, judgment or mortgage on which the property was sold,
subsequent to the lien under which the property was sold.

Q: Supposing one hectare of land was sold at public auction. The Judgment obligee was the highest bidder.
The judgment obligor may redeem that. But in this example, who would the redemptioner be? Under what lien
is the property sold?
A: The property here is being sold under a lien of a judgment, but more particularly, this is a sale on execution
under Rule 39 as distinguish from other sale from foreclosure or sale on attachment. Supposing B is a
redemptioner, what would be his lien be to make it subsequent under which the property was sold? That will be
your number 5 question in your midterm exam. Give an example of redemption by a redemptioner.

Q: May a property be sold only pursuant to a judgment? May a property be sold, already auctioned, is it only
pursuant to a judgment?
A: Under Rule 57 Section 1, an attachment may be applied for at the commencement of the auction

Supposing Mr. A filed a case against Mr. B for recovery of sum of money for P10 million. If A want to secure a
favorable judgment, he will seek the attachment of the property. He will apply that at the commencement of the
action.
So if the action started in 1990, then it will not be finish in one year time, chances are it will be finish in 10 to
15 years time. But since you applied for attachment, it is already attached and the property has become in
legal custody because of the writ of preliminary attachment. But it does not mean that this property can no
longer be legally dealt with.

Suppose the same property was subject of a mortgage or judgment or even another attachment, all these lien
are subsequent to the lien under which the property will be sold if A wins because if he does, he won’t avail of
Rule 39 but rather Rule 57. The property is sold not on execution but on attachment. Because of this, all other
persons who dealt with the property subsequent to the issuance of the Writ of Attachment are all redemptioner.

Pag attachment kasi, it happens sa umpisa pa lang ng kaso. Pag tapos na yung kaso, you do not avail of
attachment but rather execution.

NOTE: So if the property was sold in execution, chances are there will be “no redemptioner” Why? Who will
deal with a property which is already subject of a judgment? But if it was sold on a mortgage prior to a
judgment, the judgment oblige is a redemptioner because his lien is subsequent to the lien under which the
property was sold.

Let us go now to the period, remember this only applies to Real Properties.
Q: What is the period of redemption?
A: One (1) year from the registration of the certificate of sale

For example, the certificate of sale was registered on January 1, 2000. The redemption period expires on
December 31, 2000. Period is reckoned not from judgment, not from execution, not even from sale but from
registration of the certificate of sale.

Q: What is the period within which a redemptioner may redeem the property?
A: Sixty (60) days after the last redemption

Q: Let us say X is a redemptioner, at the auction sale, he was the purchaser. He purchased it in January 5,
2000. If you count sixty (60) days, roughly it will be on March 7, 2000. Suppose by May, Y who is the judgment
obligor would like to redeem it, could Y still redeem it?
A: Yes, Y is the judgment obligor and he has one (1) year to redeem it from the registration of the certificate of
sale. May palang eto eh.

Q: Supposing W, a redemptioner, would like to redeem it from X who was the first purchaser, being a
redemptioner, in May, can W purchase that?
A: X purchased it from January 5, May na ngayon, no more because a redemptioner has only sixty (60) days
from the last redemption.

Q: Now suppose X redeems it on December 5 of the same year, may it be redeem by W of January of the
following year?
A: Even if it exceeds from the one (1) year period, if it is redeemed from the last redemptioner, the sixty (60)
day period prevails over the one(1) year period. So even in January, W can still redeem it because it is still
within the sixty (60) day period from the last redemption even if it exceeds the one (1) year period.

Q: How about Y, the judgment obligor, can he redeem it by January even if it exceeds the one (1) year period
to which he was entitled to redeem?
A: Yes, because if it is given the right to redeem within a period of sixty (60) days to a redemptioner, the more
reason you have to give it to a judgment obligor even beyond the (1) year period provided that the redemption
is from a redemptioner.

Q: Suppose Y who is a judgment obligor in the auction sale, purchase it in February 5, can the redemptioner
redeem it from the judgment obligor?
A: February 5, sixty (60) days therefrom. No, because the property has returned to its owner. The owner of the
property is the judgment obligor. Pag binili na ng judgment obligor, there can be no further redemption.
NOTE: In redemption, if the judgment obligor redeems it within the one (1) year period, there can be no further
redemption. But if it is redeem by a redemptioner, there can be continuous redemption, within the period of
sixty (60) days even beyond the one (1) year period. Rationale is the “with one (1) property, the law provides
payment as many obligation as possible”

Q: Now, how much shall be paid?

A: You have to distinguish it if he is a Judgment obligor or a redemptioner. In the former, it includes the
purchase price and all other expenses plus one percent per month interest while in the latter, purchase price
and all other expenses plus two percent interest because you only have a maximum period of two months to
redeem.

Q: What if after the property was sold it is not enough to satisfy the judgment?
A:
1. First, ask for the examination of the judgment obligor;
2. Then ask for the examination of the obligor of the judgment obligor because the obligor of the judgment
obligor may remit payment directly to the judgment oblige without going through the judgment obligor.
3. Sale of ascertainable interest. Dito na magtatapos remedy na to.

Q: During the one (1) year period to redeem, yung mga rents, income of property, to whom shall it belong?
A: Sa judgment obligor pa rin

Q: But how about the judgment oblige, what can he get out of it?
A: All these earnings will be added later on, in the meantime, you do not take it from the judgment obligor.

Q: When will the purchaser take possession and ownership over the property?
A: Upon the expiration of the period of redemption. How? Consolidation of title na. You do not have to go to
court anymore. Pag may tao pa don, writ of possession tayo as held in the case of Idolor vs CA. Once
consolidated, tapos na.

Remember, if the judgment obligor is the one who redeems the property, he may immediately ask for
consolidation because the property has already returned to the original owner. But if the purchaser is the
redemptioner, he can have it consolidated only after the one (1) year because of the right of the judgment
obligor to redeem the property within the period of one (1) year from registration of the certificate of sale.

Section 46, Rule 39

Surety here is not only subsidiarily liable but also principally liable provided that he is notified. And importante
ditto eh yung notice sa surety.

Section 47 Rule 39
In relation to Motion to Dismiss. It is res judicata. Effect of Domestic Judgment.
a) Action in Rem- it is conclusive upon the thing itself
b) Action in Personam- conclusive only upon the party
c) Conclusiveness of Judgment- it is a form of res judicata. But as distinguished from bar by prior
judgment, there is no identity of cause of action in conclusiveness of judgment.

Section 48 Rule 39
Foreign Judgment
In relation to Rule 76 and 77, re probate of a will allowed abroad.
To implement a foreign judgment, you have to file an action to enforce a foreign judgment- the subject matter is
the action.

Remember now the remedies that we have already discussed. These are the following:
1. Motion to Dismiss;
2. Dismissal of Actions;
3. Demurrer to evidence;
 4. Judgment on the pleadings;
5. Summary judgment;
6. Motion for New Trial and/ or Motion for Reconsideration;
7. Petition for Relief from Judgment/ Appeal
8. Appeal proper; and
9. Annulment of Judgment

RULE 40
This rule applies only to Inferior Courts. Remember our jurisdiction under BP 129 as amended by RA 7691
NOTE: No judgment of the MTC/ Inferior Court go directly to the Court of Appeals or Supreme Court. NEVER!
As an exception to the rule, when the MTC or inferior court exercises its “delegated jurisdiction”. But if you
would observe, this is not really an exception because the MTC/ inferior court here is acting as an RTC, hence
its appeal is to the CA.

Q: When do we have delegated jurisdiction?

A: In cases of land registration and cadastral, the value of the property involved does not exceed P100,000.00
and there being no opposition.

There are two procedures involved in the Inferior courts; they are the regular procedure and summary
procedure. Remember that we do not have summary procedure in the RTC. So whether the Inferior court
exercised regular or summary procedure, the same is appealable to the RTC within the 15-day period in cases
of regular procedure, and 10-day period in cases of summary procedure, counted from the notice or receipt of
a copy of the judgment. From therein, you file a notice of appeal or record of appeal as the case maybe.
Remember that MTC now can take cognizance of probate proceedings whether testate of intestate, in cases of
probate proceeding there can be multiple appeals. In record of appeal, the court does not automatically lose
jurisdiction, it is only the subject matter appealed from.

Q: Where does the appellant files the notice of appeal or record on appeal?
A: It is filed before the inferior court/ MTC (court of origin)

Q: When does the appellate court acquire jurisdiction over the case appealed from?
A: The appellate court acquires jurisdiction not only from the filing of the notice of appeal or record on appeal,
but upon payment of the correct docket fees.

NOTE: The venue of transmittal of record is in the same region or in the same district that of the court of origin.
Upon receipt of the appellate court, the clerk of court gives notice to the parties that the record has already
been transmitted and the appellant, upon receipt of such notice, shall submit a memorandum within 15 days.
Failure to submit such memorandum is a ground for the dismissal of the appeal. On the otherhand, the
appellee shall also be required the same memorandum as required within the same period. Upon submission,
judgment may be rendered.

Rule 41 section 39 is important and said rule also applies to Rule 40.

Q: When does the court of origin loses jurisdiction over the case? When is appeal perfected?
A: In cases of Notice of Appeal or record on appeal, upon the filing thereof in due time, as to the appellant. The
court loses jurisdiction over the case upon the filing of notice of appeal or record on appeal, as the case may
be, and expiration of the period to appeal of the other parties.

Section 8 of Rule 40 is also important. Bagong provision to. Dati, when the Inferior court dismisses the case
on the ground of lack of jurisdiction over the subject matter and on appeal it was affirmed by the RTC, it will be
dismiss without prejudice of re filing the case, hence double docket fee. Now, the RTC will automatically
assume jurisdiction if it has jurisdiction. The distinction between the first and second paragraph under the said
section is the reception of evidence.
RULE 41
It speaks of Judgment or Final order of the RTC exercising original jurisdiction appealed to the Court of
Appeals.

Section 2 provides us for the Modes of Appeal:

1.) Ordinary Appeal under Rule 41
2.) Petition for Review under Rule 42. The RTC here is acting in its appellate jurisdiction. It was appealed to
the RTC then to the CA by petition for review.
3.) Review on certiorari under Rule 45

Both in petition for review and review on certiorari, you can ask for extension of time to file the same. In these
three cases, all emanated from the RTC.

Q: Again, when is appeal perfected? When the court does lose jurisdiction?
A: Rule 41 Section 9

Q: What are not appealable?

A: Just familiarize yourself with the enumeration provided for in the rules. The common ground under section 1
is that if you allow appeal on this matter, there will be no end to litigation.

Upon perfection of appeal, the clerk of court of the RTC transmits the record but he must ascertain the same
that it is complete.

Remember the Domingo Neypes doctrine, Fresh day rule applies also to Rule 41 upon denial of the Motion
for New trial or reconsideration.

Remember again, no decision of the inferior court can be brought directly to the Court of Appeals or
Supreme Court unless the MTC is exercising its delegated jurisdiction.

Q: How again do you make an appeal here?

A: By filing a notice of appeal or record on appeal. Notice of Appeal is not required in multiple appeals, only in
cases of record on appeal where every order of the court is appealable. Record on appeal is also applicable to
inferior courts and the court loses jurisdiction only as to the subject matter of the appeal, as to the other issues,
the same will continue to be heard by the court of origin.

NOTE: Section 8 Rule 40 is not applicable to the RTC. But Section 9 of Rule 41 is applicable both as to the
MTC and RTC.

Q: When is appeal perfected? Supposing in a case, Mr. X file a motion for reconsideration, Mr. Y filed a Motion
for New Trial and Z filed a notice of appeal.
A: Appeal is not perfected to Mr. X and Mr. Y because they did not file a notice of appeal. Appeal is perfected
only as to Z, upon the filing of notice of appeal in due time, appeal as to Z is perfected. What is “in due time”?
Within 15 days from notice or receipt of judgment.

Q: Will appeal be ever be perfected to X and Y?

A: Yes, only when they file a notice of appeal in due time.

Q: What if a motion for new trial or reconsideration is denied, when will they file?
A: Remember the fresh day rule, within 15 days from notice of denial. That is your Domingo Neypes doctrine.

Q: When does the court lose jurisdiction?

A: Upon perfection of appeal AND expiration of the period to file an appeal as to the others.

Q: Upon appeal, can A now file a motion for execution pending appeal with the trial court?
A: Yes, under Rule 39 Section 2 in relation to Rule 41 section 9, a motion for execution pending appeal will be
allowed upon motion with notice to the adverse party, as long as the original record has not been transmitted to
the CA.

Q: By what authority?
A: Under the residual jurisdiction.

Q: When the record has already been transmitted, where will you file?
A: To the Court of appeals, but note, the CA can NEVER issue writ of execution but only an order directing the
Trial court to issue a writ of execution.

It is incumbent now for the clerk of court of the RTC to transmit the record to the CA and therefrom, the duty
shifts to the clerk of court of the CA.

Q: Rule 40 vs Rule 41
A: Under Rule 40, the appellant files a memorandum upon receipt of the notice of the order of the court
directing him to file the same within 15 days from receipt. A memorandum is a summary of what transpired in
the trial court and does not require a format. Under rule 41, appellant files an appellant’s brief and the appellee
an appellee’s brief within the period of 45 days and thereafter an appellant’s reply brief (discretionary) within
the same period. The Briefs are mandatory and non compliance of which is a ground for the dismissal of an
appeal as provided for in Rule 50 Section (f). The substance of the appellant’s brief is the arguments,
discussion in the assignment of errors.

NOTE: If you are using the record of the case, you do not use your personal record but rather the record on
the appellate court.

Just remember that Rules 41, 44 and 50 are related to each other.

RULE 42
The Regional Trial Court here is acting or exercising its appellate jurisdiction. The case started from the MTC,
appealed to the RTC and a petition for review with the CA. Examples are cases of Unlawful detainer and
forcible entry.

Appeal here is by petition for review; distinguish the same from certiorari under Rule 45. Under Rule 42, it is
similar to an original complaint. Errors committed by the Trial Court (MTC) and also by the Appellate Court
(RTC). You do not file a notice of appeal or record on appeal here, what you file is a petition for review. It also
requires payment of the correct docket fees. Upon the receipt of the Petition for Review, the Court of Appeals
may either grant or dismiss the petition on the ground of:
1. Not meritorious;
2. Filed manifestly for delay; or
3. Issues raised therein is not that substantial which requires consideration of the court.

If it is granted, it will require the parties to file a comment, not a motion to dismiss.

RULE 43
Remember that wala ng CTA dyan

Just remember the five (5) bodies, CA, CTA, COA, COMELEC and Sandiganbayan.

In the Civil Service Commission, the appeal is brought to the CA.

In the National Labor Relations Commission, the appeal is brought to the CA under Rule 65. If you would
recall, there is no really appeal from the decision of the NLRC, but because of the St. Martin Funeral Homes
case, as reiterated in the case of Rubberworld, appeal may now be made to the CA but not as an ordinary
appeal, it is under Rule 65. What is peculiar about the said rule is that you can raise pure question of facts.
In the cases cognizable by the HLURB, the same maybe filed before the HLURB arbiter. In case of an appeal,
it can be made to the HLURB Commissioner, then appeal to the Office of the President. The decision of the
Officer of the President is appealable to the CA.

In the cases cognizable by the DARAB, appeal to the secretary. You need not make an appeal to the Office of
the President since it can be argued that the Secretary is the alter ego of the President. Then from there, you
appeal to the CA.

RULE 45
Section 1 provides that it limits only to three (3) tribunals:
1) Sandiganbayan;
2) Court of Appeals;
3) Regional Trial Court; and
4) Any other body authorized by law.
Issues raised therein are only pure questions of law.

Q: Do not confuse this with Rule 65. Most Bar questions, they asked you to distinguish Rule 45 from Rule 65.
The two may be distinguish:
A:
1. Under Rule 45, it is a mode of appeal while in Rule 65 it is a special civil action;
2. Under Rule 45, it needs to comply with the requirements of an appeal, you do not change the parties
involved therein and you have 15 days to make an appeal from notice of the judgment or order. While
under Rule 65, this is a separate action, hence it need not comply with the requirements of an appeal.
The parties herein is the court or officer or tribunal and you have 60 days to file a petition for certiorari
from notice of the judgment.

Q: Is it necessary for the court to acquire jurisdiction over the person of the parties?
A: In the case of the petitioner, the Supreme Court acquires jurisdiction over his person upon the filing of the
petition while in the case of the respondent, the court acquires jurisdiction over his person upon receipt of the
order directing him to file a comment.

Q: Suppose the petition is dismiss, is it necessary to acquire jurisdiction over the person of the respondent?
A: Yes, otherwise the dismissal order will not be effective upon the respondent over which the court did not
acquire jurisdiction.

Q: What do you raise here?

A: Only pure questions of law. If what was raised was facts and law, the Supreme Court must dismiss it.

NOTE: In the Court of Appeals, what can be raised are pure questions of fact and law or questions of fact only.
In the Supreme Court, questions of law only without facts because the Supreme Court is not a trier of facts and
is not suppose to scrutinize and accept evidence.

RULE 46
Original cases filed. Concurrent Jurisdiction. Certiorari Prohibition and Mandamus, as well as quo warranto and
annulment of judgment of the RTC is originally filed to the CA. But remember, even if it’s concurrent, you do
not have the option, you still have to apply the hierarchy of courts.

RULE 47
Annulment of Judgment, this is your last remedy available. It refers to judgment or final order of the RTC. It is
exclusively cognizable by the CA.

Q: Suppose B filed a case for a sum of money in the MTC against A. A decision was rendered in favor of the
latter. No motion for new trial, no motion for reconsideration and no appeal was taken therefrom. There is
extrinsic fraud. He filed an annulment of judgment, where will he file it?
A: Not with the CA but to the RTC. Remember, walang didiretso from MTC to CA or SC.
Q: What are the grounds for the annulment of judgment?
A:
1. Extrinsic Fraud (prescriptive period is 4 years from the discovery of fraud);
2. Lack of Jurisdiction (no prescriptive period but may be limited to estoppel and laches)

Q: Who is the defendant here?

A: The Principal defendant here is the RTC but you have to implead the private respondent as a necessary
party. Even if the principal defendant is the tribunal, it should not take active participation in the case.

Q: What is the effect?

A: If it is grounded on extrinsic fraud, the court may grant a new trial. If it is based on lack of jurisdiction, it is
without prejudice of refilling the case.

RULE 48
Preliminary Conference here is at any time.

RULE 50
Read Section 1

RULE 52
Motion for Reconsideration, same ground with Rule 37. Filed only with the CA.

RULE 53
New Trial based only on Newly Discovered Evidence. Why? The CA now can receive evidence unlike before.

RULE 55
Summons

RULE 56
Amended already, no more automatic appeal.
 PROVISIONAL REMEDIES

We are now on provisional remedies from Rule 57 - 61. So there are 5 provisional remedies. Just remember
the word AIRRS.

But if you are asked, don't say attachment as a provisional remedy but rather it is preliminary attachment. Don't
say injunction as a provisional remedy but rather preliminary injunction. As to receivership, yes it is both an
action and a provisional remedy. Technically, it is not the receivership which is the provisional remedy but
rather appointment of a receiver because in receivership it is also a kind of action. And then you have replevin
or delivery of possession of personal property. And then finally you have support pendente lite. Support is not a
provisional remedy but it is support pendente lite which is a provisional remedy.

Now, let me give you a bird's eye view of these provisional remedies.
First, because they are provisional, they cannot stand alone. Being provisional remedies, they are dependent,
contingent, or adhere to a principal action. So that you cannot find an action for preliminary attachment. It must
always be adhered to the principal action.

Q: Because of that, what are the principal actions to which these provisional remedies attach?
A:
1.) As to preliminary attachment, the principal action is recovery of real or personal property. If you try to look
at Section 1 Rule 57, you will find out that all the actions there are for recovery of either real or personal
property.
2.) As to preliminary injunction, the principal action is injunction although these seldom find, in actual practice,
an action for injunction because it always goes with some other actions. Like for example specific
performance and injunction plus damages with prayer of preliminary injunction. Is there an action which is
injunction? Yes. Under Section 4 of Rule 39.
3.) As to receivership, receivership is the principal action. The provisional remedy is appointment of a receiver.
If you go and look at Section 4 of Rule 39, you will see that receivership is an action.
4.) As to replevin, the principal action is recovery of personal property. In replevin, a foreclosure on mortgage
is possible.
5.) As to support pendente lite, the principal action is support.

Q: Which court has jurisdiction over these provisional remedies?

A: General answer is because they are contingent, that court which has jurisdiction over the principal action
also has jurisdiction over these provisional remedies. Precisely because they adhere to the principal action.

But let us be more specific, because prior to the 1997 Rules of Court injunction, for example, is cognizable only
by the RTC. But with RA 7691 (expansion of the inferior courts) and looking at Rule 70 (Sections 15 and 19, all
about injunction), therefore under the present rules, the preliminary injunction is now cognizable by the inferior
courts. Before the effectivity of the 1997 Rules, that was applied also by jurisprudence only on unlawful
detainer. But now it applies to both unlawful detainer and forcible entry as is specifically provided under Rule
70.

Q: How about support pendente lite which adheres to an action for support?
A: Remember that it cannot be taken cognizance of by the inferior courts because support is an action which is
incapable of pecuniary estimation. Therefore, support pendente lite is only cognizable by the RTC because
support to which it adheres is incapable of pecuniary estimation. Exception: In criminal cases. Because the
present rules on criminal procedure speaks that once a criminal case is filed, the civil aspect is deemed
instituted with it under Rule 111. Hence, if the action is criminal in nature but cognizable by the inferior court
and the prosecution includes the civil action for support, then support pendente lite can be taken cognizance of
by the inferior courts. Example: complaint for seduction which is cognizable by the inferior courts. And together
with that you pray for the acknowledgment of the child (suppose merong anak) and you pray for support
pendente lite. In this instance the support pendente lite is taken cognizance of the inferior courts.

In Receivership: both inferior courts and RTC.

In Replevin: both inferior courts and RTC.

In Injunction: both inferior courts and RTC.

In Attachment: both inferior courts and RTC depending now on the principal action to which the provisional
remedy attaches.

Q: What are the requirements in applying for these provisional remedies attaching to the principal action?
A:
1.) In case of preliminary attachment, what is required is the affidavit and bond.
2.) In case of preliminary injunction, the requirement is a bond and a verified petition.
3.) In case of receivership, also a bond and verified petition.
4.) In case of replevin, affidavit and bond.
5.) In case of support pendente lite, only a verified application. No bond.

Q: How do you secure, aside from these requirements, the writs for these provisional remedies?
A:
1.) In case of preliminary attachment, you may secure it ex parte. Although the writ cannot be implemented ex
parte but it can be issued ex parte.
2.) In case of preliminary injunction, as a general rule you cannot secure it ex parte under Section 5, Rule 58,
although in cases of urgency, that injunctive relief for a period of 72 hours can be granted summarily
(meron pa din notice and hearing for due process). That is how stringent in applying for injunctive relief.
3.) In replevin, you cannot get it ex parte.
4.) In support pendente lite, there is a peculiar provision under Section 2 (Rule 61) wherein the respondent,
within a period of 5 days from notice, is bound to file his comment. And if he does not file his comment, the
case will be heard on the application only (Section 3) within 3 days.

Q: Once the writ is granted or issued, how do you discharge the writ?
A:
1.) In case of preliminary attachment, it may be discharged under Sections 5, 12 and 13 of Rule 57. Cash
deposit or counter bond (Secs 5 and 12) or a motion questioning the propriety or regularity of the issuance
of the writ (Section 13).
2.) In case of preliminary injunction, it cannot be discharge it by a bond neither if it be granted by a bond,
although bond is required but a counter bond does not discharge a writ of preliminary injunction.
3.) The same thing with replevin and receivership, you cannot discharge it with a bond. You have to file a
motion questioning the propriety or regularity of the issuance of the writ.
4.) In support pendente lite, there is no bond. If the judgment is in favor of the respondent, the support
pendente lite must also be discharged because it has no basis to stand with.

RULE 57
PRELIMINARY ATTACHMENT
Provisional remedy: Preliminary Attachment
Principal action: recovery of either real or personal property

Memorize Section 1 (the grounds) of Rule 57. Remember, you will appreciate Rule 57 had you understood
Rule 39 because there are cross-references between these provisions. Section 7 of Rule 57 you will find out
that that is also practically the same or similar provision in Section 9-11 of Rule 39. Section 16 in Rule 39 is
Section 14 Rule 57, and Section 7 Rule 60 (Replevin). Try to analyze it, pare-pareho. The 3rd party claimant
will simply execute an affidavit. The sheriff will not be bound to hold it but deliver it to the 3rd party claimant.
Yang v. Valdez (was given in the bar about 5 years ago) - the 5 day period of redelivery bond. You have now
to distinguish a bond from a counter bond. Later on, remember that it is different from a supersedeas bond
which you have studied and under Settlement of Estate. Here, we are dealing with bond and counter bond.
Bond is required of the applicant. Counter bond is required of the person against whom the application
was filed. Deposit can be cash either on the part of the plaintiff or the defendant as the case may be.

Q: Take note of Section 1. When can you file or apply for a writ of preliminary attachment?
A: It says there at the commencement of the action or at any time before entry of judgment.

Q: Bakit? Why should you not apply for a writ of preliminary attachment when judgment has already been
entered?
A: Because your remedy is not attachment but your remedy is execution under Rule 39. Remember when we
were discussing Section 27-29 of Rule 39 (regarding redemption and redemptioner), so that when a property
was sold on attachment, there are possible redemptioners because Section 1 says at the commencement of
the action, you already apply for the issuance of the writ of preliminary attachment. And if the writ is issued and
implemented, the sheriff, to whom the writ is addressed, takes actual custody of the property if it is capable of
manual delivery. In the case of replevin, ibibigay ng sheriff sa applicant after 5 days if there is no redelivery
bond is filed. But in the case of preliminary attachment, kukunin niya yan for safe keeping. And it will only be
sold after judgment is rendered in favor of the plaintiff (applicant).

Q: Once a property has been replevined and again it was attached, is it still valid?
A: Yes. once the property is replevined it can still be attached. But if the property is attached it cannot be
replevined. Because in attachment, you may not take possession but in replevin you have to take possession.

Q: A 3rd party can deal with the property that has been attached. Suppose it was mortgaged with a bank after
it has been attached, is it possible?
A: Yes. The mortgage becomes a lien subsequent to the lien under which the property was sold if ever the
plaintiff wins in the case.

You cannot just attach right and left if there is no ground. That is why let me emphasize Section 3 of Rule 57.
1. There must be a valid cause of action. Because preliminary attachment is only provisional so if the cause
of action is invalid, the preliminary attachment is also invalid.
2. There must be a valid ground among the 6 enumerated grounds under Section 1.
3. There must be no other security. Or if ever there is, the security is not sufficient.
4. The order must be equivalent to the sum for which you are asking.
NOTE: These 4 requirements must be contained in an affidavit. So your affidavit is pro forma or insufficient if it
does not allege these 4 basic requirements as enumerated under Section 3. Aside from that affidavit of merits,
bond must accompany it.

Q: What do you notice in the grounds under Section 1?

A: Yung first three, it is a kind of action. Yung last three, it is the party involved.
First action, it is an action for specific amount of money and damages other than moral and exemplary
damages on an action arising from law, contracts, quasi-contracts, delicts, quasi-delicts against a party who is
about to abscond in fraud of creditors.

Q: Why other that moral and exemplary damages?

A: There is no basis. The basis must be personal, wounded feelings etc.

Q: Ano yung mga requirements niyan?

A:
1. Your actions should be for sum of money and damages, other than moral and exemplary damages.
2. Your cause of action is based on a law, contract, quasi-contract, delict, or quasi-delict.
3. It must be directed against a party who is to depart from the Philippines with intent to defraud.

Second action, an action also for recovery. But look at the defendant here, the defendant is a public officer,
officer of a corporation, attorney, factor, broker, agent, or clerk. In other words there must be a fiduciary
relationship between the applicant and the respondent.

Third action, recovery of possession, this time, against a party who removed, disposed, or does not disclose it,
or who hid these properties.

Q: What is then a common denominator here?

A: There is an element of FRAUD.

When you go to paragraphs d, e, and f the phraseology is different. It is against a party this time, not anymore
to the kind of action but to the kind of person who is a party defendant.

In paragraph d, a person who is guilty again of fraud in contracting a debt or obligation upon which the action is
brought or in the performance thereof.

Javellana v. D.O. Plaza Enterprises, Inc., L-28297, March 30, 1970 illustrates the rule prior to the 1997 Rules
of Court.
Facts of this case: There was a simple sale of property, let's say the purchase price was P100, 000.00 D.O.
Plaza paid 50% and the balance was secured with postdated checks. Plaza took possession of the property
sold. Later on, the checks, which were in payment of the obligation contracted, bounced. It all bounced. An
action for sum of money was filed with prayer of preliminary attachment using that the respondent was guilty of
fraud in contracting its obligation. When it reached the Supreme Court, the SC said no. Preliminary attachment
must be discharged because there was no fraud in contracting the obligation but there was fraud in the
performance thereof. And at that time, wala pa yung term na in the performance thereof. Hence, the defendant
here won in the sense that the preliminary attachment was invalid.

That is why when they amended the 1997 Rules of Court, using the case of D.O. Plaza, they included it in the
present rules.

Paragraph e, is one against a party who tries to dispose the property again in fraud of creditors.
SC case: So here is a businessman who was engaged in buying and selling. So when he owed somebody a
sum of money, that somebody filed a case against this businessman and applied for a writ of preliminary
attachment on the ground that the businessman was disposing his property in fraud of creditors. The SC said
NO. He is disposing his property in line of his business precisely he is in buy and sell. If he does not dispose
his property, how will he ever be able to pay you. The attachment was invalid.
Another SC case: Wherein the businessman who had a sari-sari store. A case was filed against him for a sum
of money and a writ of preliminary attachment was applied for. The SC said YES, the writ of preliminary
attachment was validly issued because there was disposal of the property in fraud of creditors. Even if the
disposal was made in line of his business, the SC held that the disposal was made at midnight and through the
backdoor. So there is fraud.

NOTE: Paragraph f is peculiar because it speaks about his situation or residence. So in this instance, any
person who left the country and temporarily reside there, you file an action and you can apply for a writ of
preliminary attachment. But take note of the last phrase there and those who may be served by publication. So
you cross-refer that to Section 15-17 of Rule 14 on Summons, who must be served through publication. It
applies only on actions in rem or quasi in rem. Actions which are strictly in personam, summons by publication
is not allowed.

One of the objectives of a writ of preliminary attachment is to convert an action which is strictly in personam to
an action quasi in rem. Once you convert it, then you can now serve summons through publication.

Q: In writ of preliminary attachment, there are three stages:

A:
1. Application. Together with the application is the order granting the application.
2. Issuance of the order or the writ of preliminary attachment.
3. Implementation or execution of the writ of preliminary attachment.

NOTE: The first two stages may be done ex parte. But the last stage must always be with prior or
contemporaneous service of summons. Hence that applied, you can avail of paragraph f of Section 1 of Rule
57 in converting the action in to an action in rem. Because the writ of preliminary attachment can be issued
even without service of summons.

In paragraph f, nakalagay dun that if a person cannot be found in the Philippines or is temporarily residing out
of the Philippines, then that can be a ground for asking the court to issue the writ of preliminary attachment.
But we said, it says there further, and all those persons who may be served summons through publication. But
sabi natin, who are these persons who may be served summons through publication? Ala yan diyan. So you go
back to Section 15-17 of Rule 14, Extra-territorial service. But we said that even if summons by publication is
allowed, that is only in cases where the action is not strictly in personam (quasi in rem). Sabi natin, so
contradictory apparently. Why? Because you are asking precisely for a writ of preliminary attachment on that
ground but you cannot serve summons to a person if your action is strictly in personam. Sabi natin, hindi. Ang
explanation diyan is that in the application for the writ of preliminary attachment, there are three stages. Yung
una hindi mo kailangan ng summons. So you can already apply, on the basis that the defendant is outside of
the country. You apply irrespective whether the summons can be issued or not because it can be issued ex
parte. But dito lang sa issuance. Pero pag hawak na yan ng sheriff, iimplement na niya under Section 7, levy
on attachment, hindi ka pwede mag levy on attachment if the court has not acquired jurisdiction over the
person of the defendant. Kaya nakalagay diyan, prior or contemporaneous. Prior is Mangila case.
Contemporaneous sabay na ng pag implement ng writ of preliminary attachment ang service of summons.
When the property has been attached, it does not mean that the property is already yours. You have to wait for
the judgment before you can dispose of the property either by public auction or possess it as owner.

Q: Suppose the plaintiff loses under Section 20, what will answer for damages?
A: The bond will answer for damages.

NOTE: This is the peculiarity of rule 57. Unlike all other bonds which answer only for damages, it is only in
Rule 57 will the bond answer for the judgment. So you underline the word judgment. Kasi dito mo lang makikita
yan sa Rule 57. Because in Rules 58-61, the bond answers for damages. While in Rule 57, the bond answers
for judgment. Ano'ng ibig sabihin nun? Sometimes damages can be separated from judgment. But in most
instances hindi. Let's say defendant is ordered to pay P20,000 as principal obligation and damages of
P10,000, so hiwalay. In other cases the bond or counter bond only answers for the P10,000. But in preliminary
attachment, the bond or counter bond answers for the P30,000, judgment and damages.

Do not be misled therefore by cross-references to Section 20 by the other rules. Do you notice that? di ba puro
cross-references. Section 8 of Rule 58, Section 9 of Rule 59, and Section 10, Rule 60 cross-refer to Section
20, Rule 57. The cross-reference is correct but the difference is that the bond and counter bond in all these
provisional remedies answer only for damages. But in writ of preliminary attachment because of its precedent
section which is Section 19, which answers for any judgment.

Q: How do you discharge the writ of preliminary attachment?

A: So the writ of preliminary attachment has already been issued or served as the case may be. At any stage,
you can always discharge the writ. Under Sections 5, 12, and 13. These are important sections. Read that and
you will note the differences.

Q: What is the difference between Section 5 and Section 12?

A: Apparently, there is no difference. But if you try to analyze it, there is a difference. The means to discharge
are the same which is either a cash deposit or counter bond, which you find in Section 5. If you go to Section
12, pareho din ang means which is a cash deposit or a counter bond. Tignan niyo, sino ang hihingi ng
discharge of the writ? Siyempre that party against whom the writ was issued. A is the plaintiff and B is the
defendant. If A applies for preliminary attachment and it was issued, who seeks for the discharge? Siyempre si
B. Is it possible that A, in an instance, may also seek the discharge of the writ? Ordinarily no, but if B as a
counterclaim, which is permissive, B will ask for a writ of preliminary attachment against A. Thus A may also
seek the discharge the writ. A can file for a counter bond.

Section 5 speaks of a cash deposit or a counter bond. The counter bond will answer for the judgment. The
cash deposit will also answer for the judgment, May pinagkaiba ba yun? Siyempre iba yun. Yung cash deposit,
pera na yun. But businessmen don't usually do that. What they do is through surety. And this is an instance
where surety is automatically impleaded without the requisite service of summons in acquiring jurisdiction over
the person of the defendant.

The difference is, in Section 5, the writ has not been implemented but it is already issued. In the case of
Section 12, the writ has already been implemented and custody of the property sought to be attached is
already in the hands of the sheriff. The property is already in custodia legis.

Regardless in what stage, whether the writ was just issued but not yet implemented or is contemporaneously
implemented, the defendant can immediately file for a counter bond. The counter bond, in effect, automatically
discharges the writ.

Section 13, another means of discharging the writ by filing a motion in court questioning the propriety or
regularity of the issuance of the writ. Whether the writ has already been implemented or not, you can avail of
Section 13.

Q: What are some grounds of irregularity in the issuance?

A: Insufficiency of the bond. Remember that the requirement for the issuance are affidavit and bond. So if the
affidavit for example did not contain the required statement as provided for in Section 3 of Rule 57, then that is
an irregularity. Or it contains but it was untruthful. It was a lie, then it is irregular.

Or suppose the bond which was filed was very insufficient. There was a claim for P20M and the bond was only
P1M. So, the issuance of the writ is irregular and improper.

Or it was issued by the court on the ground not specifically stated in Section 1 of Rule 57. Because the 6
grounds there are EXCLUSIVE. Wala ng iba.

Remedies are Sections 5, 12 and 13. These are the means to discharge the writ of preliminary attachment.

Q: Can one avail of Section 12 and avail again Section 13 in the same case?
A: Yes, it can happen. If I was a businessman and a case was filed against me and a writ of preliminary
attachment was issued against my sari sari store, and the writ is implemented, I cannot proceed with my
business because it is already in custodia legis. I cannot start selling this because the property which has been
attached is reserved for judgment. Remedy? I immediately file a counter bond, and the writ is automatically
discharged. So i can again continue in selling my merchandise. Meanwhile when there was no writ anymore,
I'll file a motion before the court claiming that the issuance was improper and irregular. I'm not praying anymore
for the discharge of the writ but rather for the discharge of the counter bond. So answer is YES. One can avail
both 12 and 13.

Q: How about Sections 13 and 5?

A: Hindi. Kasi yung Section 5 before the implementation.

I was saying, it is possible that the applicant loses in the case. It is not a guarantee that when you ask for a writ
of preliminary attachment, you will win in the case. Even if you win in the case, but you may lose in your
application for the writ of preliminary attachment.

Q: How can this happen?

A: It can happen in such a way that during the proceeding, it was established that the issuance of the writ was
irregular and improper. And what does the rule provide? The rule provides that if this happens right there and
then before entry of judgment, you already have to file for damages. You cannot file that after entry of judgment
because you are considered to have waived your right. And remember Section 46 of Rule 39, you can file now
a case against the surety even without impleading the principal. In like manner, provided there is notice, you
can go after the surety if it is a counter bond or surety bond.

Q: How about a 3rd party claim, which you find in Section 14 of Rule 57?
A: If there is a 3rd party claim, the same provision as you find in Section 16 of Rule 39 applies. The 3rd party
claimant executes an affidavit, gives it to the sheriff and then the sheriff will deliver back the property, which
has been attached, to the 3rd party claimant unless the applicant secures the sheriff with another bond. Pareho
rin yan sa Replevin, Section 7 of Rule 60 and Section 16 of Rule 39.

NOTE: Common error of the students think that since the 3rd party claimant files his claim, then the 3rd party
claimant should file for the bond. Atty. Brondial corrects that it is not. The applicant for the writ who should file
the bond without prejudice, of course, to a filing a case against the 3rd party claimant who filed a 3rd party
claim frivolously and fraudulently. And that case can be threshed out in the same action or even in a separate
action.

RULE 58
PRELIMINARY INJUNCTION
Provisional Remedy: Preliminary injunction
Principal Action: Injunction

We said you find an action for injunction in Section 4 in Rule 39. But seldom will you find an action filed
specifically for injunction only. It is coupled always with other causes of action. Like damages, or recovery of
property with injunction and prayer for preliminary injunction and TRO.

Q: When do you apply?

A: We said any court has jurisdiction over injunctive relief.
It is often said that SC has no jurisdiction over an action for injunction. Of course not, in the sense you do not
file an original action with the SC. But if your action is certiorari which is cognizable by the SC, you can ask for
injunction.

Madaling intindihin ito ngayon, these are always in the papers. Ngayon, maraming mga pulitiko ang hinahabol
at dinidismiss, kaya they are all filing injunctive relief. They are praying for annulment of the order of dismissal
or cancellation of the order of dismissal with prayer for injunction and writ of preliminary injunction. Where do
they go? To the CA because the defendant here is the DILG. So pwede yun.

While injunction can be availed of in any court, including the SC, but if you read cases and statements to the
effect that you cannot file for an action for injunction to the SC it is because it is not a court of original
jurisdiction over this action except certiorari, prohibition, mandamus, quo warranto, habeas corpus.

Q: What are the requirements in order for a party to file an injunction with prayer for preliminary injunction?
A: This basic requirement is a right of the applicant.
1. First requirement: The applicant must have a right. This right must be actual, existing and valid and not
just an inchoate right or a right not in esse (substantial).
Example of an inchoate right is the property of your parents. And you claim to be an heir. You are not
entitled to the property unless your parents die. Your right to the property is just inchoate.
2. Second requirement: There must be a violation of that right or threatened violation. So the violation may
not be actual. It can only be a threat and you can already seek protection through injunction.
3. Third requirement: The violation or threatened violation will result in irreparable damage and injuries.
Take note of these three fundamental requirements.
Example is the Idolor case.

NOTE: Preliminary injunction is preparatory to injunction. TRO is preparatory to preliminary injunction. And
within that TRO is the 72 hour period of the TRO. Tatandaan niyo to a.

Preliminary injunction has no time frame. After trial that can become permanent. But remember that a
preliminary injunction is a provisional remedy attached to injunction. So when a preliminary injunction has
become permanent, it means that you already won the case of injunction. But not the TRO, because the TRO
is preparatory to preliminary injunction. That is why there is a time frame in the TRO which is 20 days in cases
of the RTC and MTC and 60 days of CA.

Q: The requirement is verified application and bond, when do you apply for this?
A: You apply for preliminary injunction at any time in the course of the action even at the commencement of
the action or anytime thereafter but before judgment.

Q: Preliminary injunctions are of 2 kinds:

A: Prohibitory injunction or mandatory preliminary injunction.
In prohibitory injunction, you seek to maintain the status quo. In mandatory injunction, you seek to return to the
status quo.

Let me illustrate: Suppose when you go home tonight, you found your home without electricity because it has
been cut by MERALCO for non-payment of your electric bill. So you want a return to the status quo, so you file
for a mandatory injunction, mandating the MERALCO to return electricity to your residence.

Suppose when you arrived at home what you got was a notice of disconnection, may ilaw pa kayo. The notice
of disconnection is a warning. It is a threat of a violation of your right or violation of your contract. So what do
you file? Prohibitory injunction, you seek to maintain the status quo of having lights in your house.

Q: Can you get injunctive relief ex parte?

A: In no way. It must always be after hearing. You cannot get injunctive relief ex parte. I would like to
emphasize there as to where you are applying because this has always been a case for discussion. If you
apply for the writ for injunctive relief before a multi-sala court, there are 2 notices necessary for issuance of the
writ of preliminary injunction.

Q: Ano ba ang multi-sala court?

A: There is only one RTC Manila. But there are many salas, RTC Branches 45-48, etc. Quezon City marami
din yun. Yan ang tinatawag na multi-sala. Pag 2 na yan, multi-sala na yan.

The rules provide that when you apply for injunctive relief before a multi-sala court, the executive judge, even
before hearing the case, must give notice of raffle. Raffle pa lang, may notice na dapat. So that if there is no
notice of the raffle date, it is already violative of the due process clause of the constitution. Kung single sala,
wala na. Ang notice mo ay notice of hearing because hearing is mandatory. But if it is in Metro Manila or if it is
a multi-sala court, 2 notices, Notice of raffle and notice of hearing. So ang ipapadala munang notice is when
is the raffle date and your failure to attend after notice, you waive your right to be present at the raffle. And then
later on is notice of hearing.

During the hearing, the applicant should present evidence and the defendant should present his evidence.
Ordinarily, what is given is TRO. This TRO, if it is issued by the RTC or MTC, is good only for 20 days. Upon
expiration, it cannot be renewed. It is grave abuse of discretion on the part of the court to extend even upon
agreement of the parties cannot and should not be extended. In the case of the CA, it is 60 days.

Q: Where do you count the 20 day or 60 day period as the case may be?
A: From issuance.

I would like to find out, that every TRO cannot be granted ex parte except on a very urgent matter where the
hearing can be done summarily. In the case of a TRO which is good for 72 hours, this time from notice.

Q: Why 72 hours?
A: Kasi dito sa Pilipinas, ordinarily non-working day ang Saturday and Sunday. So hindi pwedeng 48 hours
baka kasi pumatak dun sa Saturday or Sunday. Kaya 72 hours because it is 3 days, kahit yun pumasok ng
friday ng hapon, papatak yun ng lunes. O pag binigay yang ng saturday, papatak pa din yan ng lunes.

If the court continues your 72 hour TRO to a full 20 day TRO, the 72 hours will be included in the 20 days. This
time counted from the issuance of the TRO of the 72 hours.

Q: Why 20 days?
A: It is because this is roughly 3 weeks. And within a 3 week period, the court must hear whether or not to
grant the writ of preliminary injunction. The court is a very busy body and you cannot set it for hearing
immediately because there are other cases filed before it.

Q: How do you discharge the writ?

A: You cannot discharge the writ through a counter bond. The only way is to question the propriety or regularity
of the issuance. But even then, chances are it will just be denied. Kaya pag na issue ang TRO for 20 days, wait
ka na lang after that period. That's why it's not that long because it is really to be threshed out whether there
was violation of the right, whether it will cause irreparable damage or injury.

Any action, if there is a violation of a right, you can ask for injunctive relief.

How about damages, you are cross-referred to Section 20 of Rule 57. But the bond here answers only for
damages.

RULE 59 RECEIVERSHIP

When we talked about receivership it is both a provisional remedy and a principal action. Although it can
happen that receivership is attached as a provisional remedy to an action for a recovery.

Q: What is the principal action for receivership?

A: If the receivership is used as a provisional remedy, the principal action here is for recovery of property
whether real or personal.

Q: What would be the jurisdiction?

A: Jurisdiction shall depend upon the principal action. It can be taken cognizance by the inferior court or the
regional trial court. You cannot file it to the Court of Appeals or the Supreme Court. You only file original actions
in the SC or CA in a very peculiar actions and we already know that when we studied jurisdictions. Concurrent
jurisdictions like certiorari, prohibition, mandamus, quo warranto, habeas corpus.

Q: If you file an annulment of judgment of the MTC, where will you file it?
A: We do not apply Rule 47 because it is for the order of the Regional Trial Court, we apply the general rule
that no actions on appeal can go to the CA or SC because it is a judgment of MTC. RTC has jurisdiction even
though it is annulment of judgment.

If receivership can be taken cognizance depending on the principal action, but if the principal action is
receivership itself since receivership may be the principal action. While preliminary injunction can never be the
principal action, what is the principal action there is injunction. In receivership it may be a principal action or
provisional remedy. If it is a provisional action it must attached to a principal action which is recovery. But
unlike attachment, Sec. 1 Rule 57, states the grounds for attachment. Sec. 1 Rule 59 also gives the different
kinds of instances where you can apply for receivership.

Q: What are these instances?

A: Sec. 1 Rule 59
a. When it appears from the verified application, and such other proof as the court may require, that
the party applying for the appointment of a receiver has an interest in the property or fund which is
the subject of the action or proceeding, and that such property or fund is in danger of being lost,
removed, or materially injured unless a receiver be appointed to administer and preserve it;
b. When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is
in danger of being wasted or dissipated or materially injured, and that its value is probably
insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of
mortgage;
c. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it
according to the judgment, or to aid execution when the execution has been returned unsatisfied or
the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise carry
the judgment into effect;
d. Whenever in other cases it appears that the appointment of a receiver is the most convenient and
feasible means of preserving, administering, or disposing of the property in litigation.

Q: What is the purpose or the reason for assigning or appointing a receiver in these instances?
A: It is for the preservation, administration or disposal of the property.
Note: You must be logical in your analysis. Why do we have to preserve the property? If the property is already
there, why do you have to preserve it? Because it is not being preserve. It is in danger of being loss,
dissipated, damage or the value is being diminished. If such reason does not exist, you cannot ask for
receivership. In administration, the value may be diminished hence the need for receiver to retain the value of
the property or the property is supposed to be disposed but it is disposed irregularly.
Even a mortgagee can file for a receivership because the property being mortgaged is in danger of being loss,
dissipated, destroyed or the value diminished.

Q: How do you apply for receivership? Procedure for receivership?

A: File an application for appointment of a receiver which is ordinarily a verified petition.

Q: What do you mean by a verified petition?

A: When you talk about verified petition it simply means that the petition must be under oath. Verified under
oath.

Q: When do you apply?

A: From the commencement of the action even after appeal because the property is still in danger of being
loss, dissipated, destroyed or its value diminished.

Q: Where do you apply? Is it in the appellate court or trial court?

A: Amendment of the rule, the appellate court may allow the application to be filed in and decided by the court
of origin and the appointed receiver of the court of origin has control over the property under receivership. Sec.
1 Rule 59 last paragraph.
This amendment is exceptional because under Sec. 9 Rule 41 perfection and loss of jurisdiction. The
court of origin has no more jurisdiction over the action but still the court of origin can still appoint a receiver, this
is the reason why it is exceptional. If you look at the 1960 rule which was amended by the 1997 rules of court
hindi pa yan pwede but now pwede na. because the rationale there is what is actually appealed is not the
subject matter of receivership but the principal action, here it is merely a provisional remedy. Sir does not
totally agree with that because as said earlier receivership may be a provisional remedy or a principal action,
so if it is a principal action definitely it is appealed there. The real reason there is that it is in the exercise of its
residual jurisdiction.

Q: What are the requirements?

A: Affidavit and bond.

Q: What constitutes the affidavit?

A: The affidavit here pertains to the affidavit of merits, same as Rule 57 Sec. 3 requirements but different
grounds. It is a mandatory requirement for receivership.

Q: Who should file the bond?

A: The applicant and the receiver shall file the bond. An applicants bond and a receivers bond because the
applicant may not be appointed as the receiver. As much as possible, a party to the case should not be
appointed as receiver, if you are the applicant it does not follow that you will be appointed as the receiver.
Because these are 2 different bonds they must undergo 2 different things. The applicants bond answer for the
damages caused by the applicant while the receivers bond answer for the damages caused by the receiver.

Q: What happens if the applicant is appointed as the receiver himself? Does he file 2 bonds?
A: Yes, that’s why you do not limit yourself to replevin where the bond is twice the value of the property. It can
also happen here that 1 person files 2 kinds of bonds although not necessarily the value of the property
because here just like attachment it is with the discretion of the court. The court may only require his bond not
necessarily an amount equal to the value of the property but in replevin the rules specifically provide that the
bond must be twice the value of the property. Here not necessarily, pero 2 pa rin, one coming from the
applicant and another from the receiver, so if the applicant was appointed as the receiver he files 2 bonds. One
as an applicant and another as receiver.
Q: If the 2 requirements are complied with, the affidavit and bond, the court shall issue an order appointing a
receiver, so what are the duties and responsibilities of a receiver?
A: Sec. 6 Rule 59 a receiver shall have the power to bring and defend actions in his own name; to take and
keep possession of the property in controversy; to receive rents; to collect debts due to himself as receiver or
to the fund, property, estate, person, or corporation of the same; to make transfers; to pay outstanding debts;
to divide money and other property that shall remain among the persons legally entitled to receive the same.
However, funds in the hands of the receiver may only be invested only upon order of the court and upon written
consent of all the parties to the action. No action may be filed by or against a receiver without the leave of the
court which appointed him.

Q: Can a receiver be sue or be sued? How is it related to Sec. 1 Rule 3?

A: Yes, cross referring it to Rule 3 Sec. 1 who may be a party? A party is one who may be benefited or
prejudiced by the suit. A receiver shall not be damage or prejudiced by the suit nor benefited thereto. He is not
a party in interest, so why can he sue and be sued? Because he will fall under an entity authorized by law just
like an executor or administrator, he has no interest on the estate so he is not a party in interest actually. But
he is authorized, he has what we call legal standing.

Q: An order of receivership or appointing a receiver will take over and must have possession of the property, if
necessary these properties refer to everything under litigation including books of accounts and everything.
They are also obliged to deliver or surrender do not comply what should the receiver do?
A: He can ask the court to cite him for contempt.

Q: How receivership is terminated?

A: When there is no more reason for its existence it has to be terminated. Therefore if the properties subject of
receivership is no longer in danger of being wasted, lost, damage, injured or value dissipated then receivership
will terminate.

One common example here is when a corporation who is now in the stages of winding up its affairs. During
that time, the stock holders usually…nakaw dito nakaw doon…usually the better solution is for the appointment
of a receiver. A receiver is not necessarily an individual person, it may also be a corporation. Banko Pilipino for
example, it was placed by receivership by the Sentral Bank. The problem was that the receiver assigned was
more corrupt than the stock holders before the termination of the receivership he left for the States and stayed
there permanently bringing with him all the assets of Banko Pilipino. It took Banko Pilipino more than 20 years
to recover. That is why the receiver is also obliged to give a report, a return or an accounting of his duties and
responsibilities to the court otherwise before you know it baka lalo lang nawala and lahat.

Rule 60 Replevin
Q: What is the principal action?
A: Recovery of possession of PERSONAL property

Q: Which court has jurisdiction?

A: MTC or RTC depending upon the value of the property because technically replevin is only a provisional
remedy.

Note: only receivership may only be a principal action but replevin will always be a provisional remedy.

Q: What are the grounds for application of replevin?

A: Sec. 2
a. That the applicant is he owner of the property claimed, particularly describing it, or is entitled to the
possession thereof;
b. That the property is wrongfully detained by the adverse party, alleging the cause of detention
thereof according to the best of his knowledge, information, and belief;
c. That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or
seized under a writ of execution or preliminary attachment, or otherwise placed under custodia
legis, or if so seized, that it is exempt from such seizure or custody; and
d. That actual market value of the property is stated in the affidavit.
Q: If A sold a lot to B, then B caused the titling of the property fraudulently in his favor can A ask for recovery of
the property being entitled to the recovery of the property?
A: No, because replevin only applies to personal property.

The other provisional remedies we studied so far, you apply for the provisional remedy from the
commencement of the action or before judgment and even after judgment in the case of receivership. But in
replevin it should be availed of before answer.

Q: Why should replevin can only be availed of before answer? Why would an answer disqualify an application
for replevin? After answer it cannot be applied for anymore, why?
A: When an answer is filed issues are joined and because issues are joined, the court already knows whether
the applicant is entitled to the ownership or possession. So hindi na igagrant ng court, kaya it must be before
the answer because it is an immediate remedy.

Q: To whom the writ of replevin addressed? What should he do after issuance of writ?
A: To the sheriff, and after issuance of the writ of replevin he shall take actual possession of the property for
safe keeping.

Note: In attachment the taking of the property is for the purpose of awaiting for the final judgment, here in
replevin the reason for the taking of the actual possession of the property is for safe keeping.

Q: How long should the sheriff hold in possession of said property?

A: Only 5 days, after said period he must deliver said property to the applicant.

Q: So the defendant must object? If he does not object, what happens?

A: Yes, it requires an objection. If such objection is not made the possession of the property shall be given to
the applicant.

Q: How do you discharge the writ of replevin?

A: By filing a counter bond which is called redelivery bond within the period of 5 days. And within that period if
the writ of replevin is intended to be discharge the defendant must file a counter bond which is also known as
redelivery bond. If the defendant puts up a redelivery bond then the sheriff is now required to return the
property to the person to whom he got it. But if the defendant fails to put a redelivery bond then the sheriff will
deliver it to the applicant.

Remember that this is only a provisional remedy, the principal action is recovery of possession of personal
property. Later on, in the principal action you can thresh out ownership as the basis for the recovery of
possession. Therefore possession becomes an effect of ownership. If he is only entitled for possession, pwede
pa rin.

Yang vs Valdez
The 5 day period is mandatory, even if you put up a redelivery bond but beyond the 5 day period it will not have
the effect intended for.

Note: This is the shortest period wherein the sheriff have custody of the property, in attachment from
application which may be from the commencement of the action until final judgment which may last for 10
years. Here, you may even file for receivership kasi baka yung property e ginagamit na ng sheriff. And usually
you do not assign the sheriff or the clerk of court as a receiver. It is even advisable not to assign a party to the
case as a receiver.

Q: How much the bond be?

A: Twice the value of the property.

Q: If the defendant objects on the ground of insufficiency of the bond or to the validity or capacity of the surety,
what happens now?
A: Sec. 5 Rule 60. Then the court must ask the applicant to satisfy the insufficiency of the bond, and only when
the order comes out and there is still no satisfaction of the insufficiency of the bond then the property shall be
delivered to the person to whom it was taken by the sheriff.

Q: What are the requirements?

A: Affidavit and bond.

We said in receivership that it can happen that there is 2 bond if the applicant is appointed at the same time as
the receiver. In replevin it can be thrice.

Q: Give the circumstance wherein it can happen?

A: If there is a 3rd party claimant.

Note: We’ve studied 3rd party claim in Rule 39 execution, 3rd party claim in attachment and again here in
replevin. Sec. 16, 14 dito naman 7. The same provision, meaning if a 3 rd party claims ownership or entitlement
of possession of the property subject of replevin then the applicant must file another bond which is not less
than the value of the property. So 3 na. This is without prejudice to a possible action for damages filed against
the 3rd party claimant if the 3rd party claimant’s claim is found to be frivolous or fraudulent. Where do you file it?
Either in the same action or a separate action for damages.

In attachment if you file for damages Sec. 20 Rule 57 you have to do it before entry of judgment, dito sa
replevin it can be file in a separate action. You should know the distinctions between the different provisional
remedies, they are different, one from another.

Q: If there is already a writ of replevin and the sheriff already took possession of the property and given it to
the applicant, how can it be discharged?
A:

Q: How do you discharge a writ of attachment?

A: Sec. 5, 12, 13 Rule 57. Sec. 13 is by motion, Sec. 5 is by counterbond. Dito naman sa replevin may
equivalent for that, a counterbond also or by redelivery bond, how much is the redelivery bond? Equal to the
bond therefore twice the value of the property also. Or you question the propriety or regularity of the issuance.

Q: What are the possible grounds there?

A: That there is no basis, or there is no entitlement of ownership or possession of the property. Then the writ
can be discharged. But the immediate way to discharged it is thru a redelivery bond which is equal to the value
of the bond which is twice the value of the property.

Yung 3rd party claim, the same provision yun, the same application. In other words, thru an affidavit furnishing
the same to the sheriff, the sheriff is entitled to deliver it to the 3 rd party claimant unless the applicant puts up
another bond. So thrice na lahat, the value of the property.

Do you recall the peculiarity in what we studied in the writ of execution? Under Rule 39, when there is a 3 rd
party claim, during the auction sale, even if the purchaser is the judgment obligee he has to pay. Ordinarily, the
judgment obligee, if he is the purchaser during an auction sale pursuant to an execution he does not have to
pay. But if there is a 3rd party claim, then he has to pay. Why? Because precisely the ownership is in question.

Dito naman delivery until you put up another bond equivalent to the value of the property.

While the property now is in the hands of the applicant, the main action should proceed and what should be the
judgment? Important to.

Orosa case
Sec. 9 only in the alternative. Hindi pwede yung 2 ang ibigay.

Q: What are the alternative decisions here?

A: It is either give the property or pay the value.

The best example of replevin is buying a car. But most buyers don’t buy in cash almost everyone is buying thru
installment. Here you are not the owner yet, when the car is given to you, you execute a mortgage, mortgaging
the same car to the seller. Read the contract, it always has a clause in default, if it says there that if you default
for example 2 months of payment, the seller will have the right to foreclose the mortgage judicially or
extrajudicially. Here, the foreclosure will always carry a prayer for replevin and the seller is willing to pay twice
as much as the value of the property because the bond is not a cash bond but merely a surety. Once they
foreclose they get the car, complying with all the requirements. Once they recover it after the case, the same
car shall be resold.

Replevin as well as attachment is known as custodia legis. Property which has been attached can no longer be
the subject of replevin, but a property replevined can be the subject of attachment minus/less delivery. Note
parehong may delivery, pag replevin kinuha na, pero pwede mo pang iattach without delivery because in
attachment you also take but first right sa replevin, di mo na pwede kunin yun. But you can attach, because
attachment simply furnish him with the copy of the order. So ano ka? Subsequent lien holder ka dun. The
attaching creditor shall be a subsequent lien holder. Replevin replevin no… attachment attachment yes why?
Because it depends upon the value, if the value of the property for example a 100 square meter property in
makati worth 2m and it was attached for a debt worth 1m, it can again be attached. But in the case of levy, levy
on attachment who is …. the first attaching creditor. Kung may sobra ibabalik dun sa may owner. And you can
even be a redemptioner there because you are a subsequent attaching creditor. So if there are 2 attachment,
the 2nd attaching creditor is or maybe a redemptioner if the property is sold thru levy in attachment.

RULE 61 SUPPORT PENDENTE LITE

Q: What is the principal action?
A: Support, support pendent lite being a provisional remedy cannot stand alone, it must be attached to a
principal action which is an action for support.

Q: Which court has jurisdiction?

A: The court which has jurisdiction over the principal action. RTC

Q: Why RTC? Can it be MTC?

A: Because the subject of support is not capable of pecuniary estimation so only cognizable by the RTC. The
amount asked or prayed in the action of support is immaterial because the issue here is whether or not the
applicant is entitled to support.

Q: Is there any exception to the rule? Are there circumstances wherein support pendent lite can be taken
cognizance by the MTC or inferior courts?
A: Yes, in criminal cases because support pendent lite which attaches to support can be filed together with the
criminal case because in criminal procedure it is now provided that once you filed a criminal case the civil
aspect is deemed instituted with it.

Q: What are exceptions to that?

A: Reservation, prior institution.

Q: The usual case of an unwed mother goes to court and ask support for the child. When can she file it?
A: From the commencement of the action or at anytime prior to final judgment.

Q: Then the court must take immediate action on the provisional remedy of support pendent lite. What does
the court do?
A: The court shall issue an order directing the respondent to file a comment within 5 days. And with or without
comment, hearing must be held by the court. The hearing here is for the provisional remedy. (parang
injunction, it cannot be granted without a hearing. In preliminary attachment pwede, kasi it can be granted ex
parte but it cannot be implemented without prior or comtemporaneous service of summons). If he failed to
appear, court grant an order of support pendent lite, here it is only provisional.
An unwed mother living in the squatters area in Tondo asked the court for support and asked to be granted
provisional support to her only child in the amount of 50k a month. The court will ask why 50k? Panggasulina
po. Ilan ba kotse mo? Wala po. Nanghihiram lang ako ng kotse. Ilang taon na ba ang anak mo? 3 months old
po. Ano ba ang gatas nya? Breast fed po? Sabihin ng court di mo kailangan ng 50k ang kailangan mo lang e
malunggay…LOL. Para mayroong gatas, and you are only feeding milk to your son… o baka naman may
pinapadodo ka pang iba dyan…LOL. Provisional lang to, kya the court may grant 5k a month provisional
remedy.

Note: That this provisional remedy shall depend upon the capacity, eto ang very wide discretion ng court.
Capacity ng person who will give support.

Q: Suppose the respondent does not comply, what should the court do?
A: The court shall issue an order to execute

As we have studied under the Rule 39, only final order or judgment may be executed. Then why should it be
executed? In fact, this is an interlocutory order like an appointment of a receiver, it is not appealable only
subject to certiorari if there is a ground.

Q: If these is merely an interlocutory order, why should it be executed?

A: The rule so provides that this is the only instance where an interlocutory order may be executed. That
provisional remedy of support pendent lite can be subject of a writ of execution. It is a very exceptional
character. It is an exception to the rule that only a final and executory order may be executed.

Q: Mother was granted 10k a month, in the process the main action is being heard which is support proper to
make the support pendente lite support already. Suppose the respondent was able to establish that he is not
liable to give support because he was able to prove that he was not the father. What happens now?
A: Court shall order the return of the paid amount with payment of legal interest from the dates of actual
payment, without prejudice to the right of the recipient to obtain reimbursement in a separate action from the
person legally obliged to give support. Should the recipient fail to reimburse the amounts, the person who
provided the same may seek reimbursement in a separate action from the person legally obliged to give such
support.

Q: What happens to the provisional remedy which has already been granted, yun ba ang ibabalik?
A:

Q: If the applicant cannot return the support granted then what happens?
A: She cannot be forced nor be imprisoned for that. But the respondent may seek reimbursement in a separate
action to the person legally obliged to give support.

Note: 2 remedies restitution and reimbursement plus damages.

Mongonon vs CA 495 or 496 or 497 SCRA

De Asis doctrine
Support never becomes final, so res judicata does not apply. Because if granted 10k by court as support (not
just pendent lite) may judgment na for support. You can always go back to court and asked for increase or
decrease of support because it depends upon the capacity of respondent and needs of recipient. In the De
Asis case, the parties thereto made a compromise and later on the other party filed another case for support.
The respondent alleged that the compromise judgment is immediately executory and there is res judicata. SC
ruled that there is no res judicata in support, it is never final.

People vs Manahan
Acknowledgment must be distinguish and separated from support. If the defendant is married, under that
doctrine, he may be forced to give support but not to acknowledge the child. The rationale there is in the
Family Code because it would introduce bad blood in the family.
Sir: Doesn’t like that doctrine, he should be forced to acknowledge the child. It is his fault so why should not he
acknowledge.

SPECIAL CIVIL ACTIONS

Q: What is so special about special civil actions? Why are they called special civil actions?
A: Because each particular civil actions are governed by their own special rules. Ordinary rules of court does
not apply to them but is only suppletory in character. For example some special civil actions have no
summons, the court acquire jurisdiction over the respondent in a different manner but in ordinary actions
summons is mandatory. Like in certiorari, there is no issuance of summons there, the court acquire jurisdiction
by the issuance of order to file a commnent.

Distinguish Rule 65 with Rule 45

In special civil actions in Rule 65 it says there that the tribunal, body, board, officer, corporation are only
nominal parties and under regulations now of the SC, circulars, the tribunal, corporations under or impleaded
as respondent are not suppose to appear and not suppose to file pleadings, let the private respondents do that
for them.
That is why in certiorari, you say petition for certiorari Juan De la Cruz vs RTC branch 45 manila then name of
respondent. The principal respondent there is the tribunal court or bodies, but they become nominal in the
process.

Q: Name the special civil actions?

A:
1. Rule 62 Interpleader
2. Rule 63 Declaratory Relief and Similar Remedies
3. Rule 64 Review of judgments and final orders or resolutions of the COMELEC and COA
4. Rule 65 Certiorari, Prohibition and Mandamus
5. Rule 66 Quo Warranto
6. Rule 67 Expropriation
7. Rule 68 Foreclosure of Real Estate Mortgage
8. Rule 69 Partition
9. Rule 70 Forcible Entry and Unlawful Detainer
10. Rule 71 Contempt

RULE 62 INTERPLEADER
Q: Which court has jurisdiction in an action for interpleader?
A: It may be taken cognizance by MTC or RTC. It depends upon the subject matter of the interpleader.

Q: Why does it depend upon the subject matter? What can be the subject matter of an interpleader?
A: Property whether real or personal may be the subject matter of an interpleader, aside from that performance
of an obligation may also be the subject matter of an interpleader.

Note: Performance of the obligation cannot be filed in the MTC because it is incapable of pecuniary estimation
which is only cognizable by the RTC. Performance of an obligation amounts to specific performance which is
not capable of pecuniary estimation.

For example you found a wallet, you surrender it to the dean, upon opening of the wallet it was found to
contain a check worth 350k payable to cash. A,B,C, and D alleges ownership. The dean has no other choice
but to file an action for interpleader because there are 4 different claimants. Another example is A and B are
lessor and lessee over an apartment unit. At the end of the contract of lease A would like to surrender the
premises to B, but C and D came forward and said they are entitled to that. A now does not know to whom to
deliver, therefore A should file an interpleader. Example of obligation, to paint, sculpt, perform.

Q: How do you distinguish now interpleader from intervention?

A: Interpleader is a special civil action while intervention is an ancillary action. In the former there can be no
single defendant, there must be at least 2 defendants while in intervention there can be 1 defendant. In the
former there is no action yet while in the latter there is already a pending action.

Note: If you are asked to make a distinction do not define one and period because you are not stating a
distinction at all.

Q: After an action of interpleader is filed, what happens next?

A: The court shall order the respondents to file their answer.

Note: This is the only rule where there is a section for a motion to dismiss. Defenses and objections, that is
what is meant there.

After filing an answer and once the issues are joined then you go to the regular rules of court which is you go
to pretrial then trial.

Q: What should the judgment be by the court in an interpleader case?

A: The judgment shall be a declaration as to who is entitled or who is the legitimate or entitled to the real or
personal property or of the performance of the obligation.

Wakwak golf case

Interpleader is a compulsory counterclaim. When Tan filed a case against Wakwak knowing already that there
is another claimant, it could have and it should have filed a compulsory counterclaim of interpleader. For not
doing so, it is considered that it had waived its right to any action against the defendant.

Q: Can there be a compulsory intervention?

A: Yes it can happen.

Eternal Garden vs IAC

Court may order that the subject matter be paid or delivered to court. And the person who filed the interpleader
having no interest over the subject matter should be ordered by the court to do so.

So if you have an action for interpleader you should ask the court to deposit.

Q: What if the action is for the performance of an act, can you ask for its deposit? A: No, the person who is
obliged to perform will not stay there. It is only applicable to real or personal property.

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES

Q: Which court has jurisdiction over declaratory relief?
A: RTC has original and exclusive jurisdiction because the subject matter is not capable of pecuniary
estimation.

Note: The real declaratory relief is stated in the first paragraph of Sec. 1 Rule 63, the 2 nd paragraph which
pertains to reformation of instrument or quieting of title is not declaratory relief it is similar remedies. The 2 nd
paragraph was added there to give life to certain provisions of the Civil Code which has no corresponding
procedural aspect. It is even misplaced, it should fall under ordinary action.

Q: What’s the venue?

A: If personal action, where the plaintiffs or respondents resides at the option of the plaintiff.

Q: What is the subject matter?

A: Any contract, will, deed, or other instruments or whose rights are affected by a statute, executive order or
regulation, ordinance or any other governmental regulation.

Q: What is the condition? What is the peculiarity there?

A: Before breach of contract or violation of the statute. If there is already violation in the contract or statute
then declaratory relief is no longer applicable.

Meralco vs Philippine Consumers 374 SCRA

There was a PD by Marcos reducing the Tariff rate of electricity from 5% to 2% and then the Phil. Consumers
Foundation Inc. wanted that the 3% reduction be given to the consumers. The BOE denied it. It was never
appealed so the order of BOE became final and executory. 5 years after PCFI filed an action for declaratory
relief. SC dismissed it because the PD has long been breached already. The doctrine here is that you cannot
file an action for declaratory relief if there is already breach.

Example Makati issued an ordinance banning smoking even on the street effective on Dec. 20, 2008. Before
Dec. 20, 2008 arrives you have the right to file an action for declaratory relief. Pero pagdating ng Dec. 20 no
more, because once Dec. 20 arrives there is a reasonable presumption that there is already a violation.

Q: Suppose you’ve already filed an action before breach, then pending action there is already breach, then
what happens?
A: Then the action shall be converted into an ordinary action.

Q: How do you convert the action?

A: File a motion to amend action with leave of court.

Q: Example a regulation of a school was issued stating that by the school year 2008-2009 starting June tuition
fees shall be raised by 120%. There was already a circular to that effect. Declaratory relief was filed, pending
action June 2008 came. The increase was already collected from the students so you convert your action for
declaratory relief to what kind of action?
A: Convert is to collection of sum of money.

A and B are lessor and lessee of a property. And the contract of lease is for a period of 10 years from year
1990 to year 2000. In 1995 the land was overrun by MNLF and so the lessee left the property. 4 years
thereafter, in 1999 the MNLF was driven away by the military so B returned to the premises. He files for an
action of declaratory relief asking the court to determine whether the contract will expire 2000 or 2004. why?
Because he was not able to avail of the 4 year period when it was under the possession of the MNLF. So he
filed for declaration of relief, but the action has not yet terminated it is already 2001, by 2001 the action must
be converted into what? Into either unlawful detainer or forcible entry as the case may be or for recovery
accion publiciana.

Q: Is the court bound to make a judgment in an action of declaratory relief?

A: No, another peculiarity here is that the court is not bound to make a judgment.

Q: When is it not bound to make a judgment?

A: When there will be no finality in the resolution of the rights and privileges

Manhattan Bank New York

MBNY is a trustee of a will and one of the named devisee in the will filed an action for declaratory relief without
asking the court to determine who are the compulsory heirs and what are their specific rights under the will.
The petitioner did not implead the compulsory heirs, the court refused to render judgment because even if it did
it will not finished or end the controversy.

RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OF THE COMELEC AND COA
Remember that Rule 64 cross refer you to Rule 65 so we do not have to discuss Rule 64

Q: What is the difference between Rule 64 and Rule 65?

A: In Rule 64 it only applies to COA and COMELEC while in Rule 65 there is no specific agency. In the former
the petition should be filed 30 days from receipt of notice while in the latter it is filed 60 days from notice. In the
former it is solely cognizable only by the SC while in the latter there is concurrent jurisdiction between SC, CA,
RTC and even Sandiganbayan but in the case of the latter the only limitation being is it should only be in aid of
its appellate jurisdiction.

RULE 65 CERTIORARI, PROHIBITION, AND MANDAMUS

Rule 65 Certiorari Prohibition Mandamus

Petitioner Any aggrieved party Same same
(Plaintiff)
Respondent T–B–O Tribunal, Board, T–B–O–P–C
Officer, Person,
Corporation
Grounds 1. Lack of Same 1. Neglect in the
jurisdiction performance of the
2. Excess of act enjoined by the
jurisdiction law
3. Grave abuse of 2. Unlawfully
discretion excludes the
amounting to lack of enjoyment of an
jurisdiction office or franchise
Functions of Judicial/quasi Same + ministerial Same as prohibition
respondents judicial functions functions
(discretionary)
Conditions 1. No appeal Same
2. No plain, speedy,
adequate remedy in
the ordinary course
of law
Judgment To annul/void To cease and desist Order to do but may
judgment or final award damages
order

Let us now discuss these:

Q: We do not have any problem in the aggrieved parties. How about the respondents?
A: In prohibition you add the person and the corporation and remember that this used to be under the
jurisdiction of the SEC, but this is no longer true. How about this person? This is not ordinary individual person
but a person exercising quasi judicial function. Remember that quasi judicial bodies as we have studied does
not belong to the judiciary and a lot of them falls under the executive branch of the government and that
includes the NLRC. The NLRC is not a judicial body but it exercises quasi judicial functions.

UP Board of Regents vs Tailan

Board was considered as a body exercising discretionary function, in effect quasi judicial. Even in an
administrative bodies, a school board, when it rules that a student is not entitled to be enrolled in said school
due to some grounds.

Lapid vs Laurea
Requirement of certiorari

Q: Give example of lack of jurisdiction?

A: Tribunal, body, board or officer has no authority to decide the case. Example MTC rendered a judgment on
an issue which the subject is not capable of pecuniary estimation.

Russel vs Vestil

Note: Under Rule 45 which is a mode of appeal, the body there acted with jurisdiction that is why the ground
cannot be any of the 3 because it is a mode of appeal. It is called errors in judgment. Under Rule 65 it is errors
of jurisdiction. Errors of judgment are correctible by an appeal, while error of jurisdiction is correctible by
certiorari.

Q: Give example of excess of jurisdiction?

A: Here the court has jurisdiction but it exceeded its authority. Example is when MTC in a case of reckless
imprudence resulting to homicide rendered a judgment of conviction of 20 yrs imprisonment. This is clearly
excess of jurisdiction.

Before amendment in summary procedure, attorneys fees are limited to 20k wala na yan ngayon. So if a court
grants more than 20k as attorneys fees under the old law it is clearly excess of jurisdiction. Under the new law
it may be grave abuse of discretion but not anymore excess of jurisdiction.

Court penalizes lawyer in the amount of 20k for direct contempt for coming late. Maximum penalty is 20k so no
excess of jurisdiction but maybe grave abuse of discretion.

Q: What is grave abuse of jurisdiction amounting to lack of jurisdiction?

A: It is a capricious or whimsical exercise of judgment and despotic or arbitrary exercise thereof.

Certiorari is always questioned in the bar or at least it is always mentioned. So if you are asked a question
about certiorari and you do not know whether it is excess of jurisdiction or grave abuse of jurisdiction
amounting to lack of jurisdiction, just remember 4 adjectives – whimsical, capricious, despotic and arbitrary.
When you see any of these words, it is grave abuse of discretion because in all jurisprudence involving
certiorari, these are the words often used by the SC. But there may be a case wherein it does not use the
specific words, kaya dapat alam nyo ang meaning and synonyms of these terms.

Q: When is it capricious? How about whimsical? Despotic? Arbitrary?

A:
Note: That the word capricious and whimsical always go together. You will not find one without the other. It
means it is only based on whim, there is no need, no necessity. It is unreasonable.
Arbitrary naman is no basis, unwarranted, baseless, the law does not provide. Despotic on the other
hand is when it is done out of passion, out of revenge, out of hatred or out of love. Remember despotic pa rin
yan kahit out of love. Relationships, maraming jurisprudence dyan, kaya lawyers always file motion for
inhibition.

Q: Give example of grave abuse of discretion?

A: In filing a motion to quash grounded on double jeopardy and in your motion you attached the judgment of
conviction of your client. Very clear he has been convicted already. Court denied motion stating yes you have
been convicted of rape of my daughter but it is still denied. Why? Because I have 2 more daughters….LOL.

Note: In all of these grounds – lack of jurisdiction, excess of jurisdiction, grave abuse of discretion. Ang malimit
mong mabasa is grave abuse of discretion kasi very clear pag excess of jurisdiction and lack of jurisdiction.

It is important that you must establish the existence of whimsical, capricious, despotic or arbitrary. If you cannot
establish that then the court should deny it because it would then be an error of judgment and not error of
jurisdiction. The remedy would be wrong. And at the time of said judgment the case would be final and
executory because the right to appeal is lost because the period for filing an appeal has already lapse.

Note: That certiorari does not stop the running of the period of appeal.

Note: Discuss mandamus with quo warranto because of the similarities between the 2.

Q: Let us now go to functions of the respondent. In Certiorari the functions are judicial and quasi judicial
function. Now, what is judicial function?
A:
Q: The distinction lies in the root of its power since both exercises the same power which is the power to hear
and determine a case, so what is the root of its authority?
A: In judicial function the root of its power comes from the judiciary itself while in quasi judicial function the
roots of its power comes from the legislative or the executive department.

Note: Do not confuse it to discretionary or ministerial functions

Q: How do you distinguish one from the other?

A: In ministerial, the court is left without the choice but to grant it if all the rules and requirements are complied
with, while in discretionary it may deny or grant but within the parameters, it cannot go beyond said
parameters. Example is giving penalty of 6 years 1 day to 12 years. The court has discretion what specific
penalty to give but it must be within said period depending upon certain circumstance.
Note: That the grounds in prohibition is the same even if the function is merely ministerial kasi pwede pa rin na
whimsical, capricious, despotic or arbitrary. But which is clearer? Yung discretionary function sa certiorari
because it is very clear because of the parameter in discretionary. So if it exceeds the parameter clearly grave
abuse of discretion amounting to lack of jurisdiction (????).

Conditions are that there must be no appeal and there is no other plain, speedy, adequate remedy in the
ordinary course of law.

Q: Why no appeal?
A:

Generally, certiorari cannot be a substitute for an appeal. Remember this, madaming ramifications to. If
appealable, no certiorari, as a general rule, so why go to certiorari? Because it is not appealable. Example of
those which are not appealable are interlocutory orders. Decisions in labor cases, does not allow appeal so
your remedy is certiorari. Why no appeal again? Because you could have appealed but you did not, you have
now lost your right to appeal. But these time the loss of appeal here is not due to any others fault but your own.
If it is your own fault, you cannot apply for certiorari. You loss your right to appeal not because of your own
fault. Example lawyers fault, although the general rule is fault of lawyer is also fault of client, but there are
exceptions there like Rule 38 Sec 1 Relief from judgment; Sec. 2 Rule 38 Relief from denial of appeal. You left
for abroad while pending case, lawyer received decision but he did not notify you. When you return it can be
excused.

The other condition, no plain, speedy, or adequate remedy in the course of law, in other words you could have
filed a motion for reconsideration or you could have appealed because it is still available, but appeal or MR are
not speedy or adequate remedy in the ordinary course of law. Example motion to quash was denied, may
appeal dun, pero certiorari is the better rule, why? Because if you saw appeal, tuloy tuloy pa rin ang kaso. You
cannot desist from proceeding the case, are you going to subject, are you going to endanger the client to be
convicted later on? So instead of an appeal or MR then you go to certiorari where the other court will
immediately strike down the resolution.

Q: What is the character of Rule 65 as distinguished from rule 45?

A: Rule 65 is a special civil action while rule 45 is a mode of appeal.
The ground for filing an appeal under Rule 45 is error of judgment which can either be:
1. Insufficiency of evidence
2. Judgment is not according to the facts
3. Damages awarded is contrary to law
The ground for filing certiorari under Rule 65 is error of jurisdiction which can either be:
1. Lack of jurisdiction
2. Excess of jurisdiction
3. Grave abuse of discretion amounting to lack or excess of jurisdiction.

Q: What are the grounds for filing of an action for prohibition?

A: Same grounds with certiorari.
Q: What are the grounds for filing an action for mandamus?
A:
1. Neglect in the performance of duty imposed by law
2. Exclusion from enjoyment of an office

Q: Doctrine in the case of Lapid V. Laurea

A:
1. Requirement preparatory to the filing of petition for certiorari
General Rule: Filing of a motion for reconsideration is mandatory to give the tribunal a chance to
correct itself
Exception: Purely questions of law which raises questions of error of jurisdiction
2. Specific dates must be stated as to when the judgment was rendered, when notice of judgment was
received, filing of Motion for reconsideration and receipt of order with respect to the denial or grant of
the motion.

Q: What is the period for filing of certiorari?

A: Period of 60 days from receipt of copy of judgment.

Q: Does the Neypes doctrine or fresh day rule apply?

A: The jurisprudence does not specifically provide that it should likewise apply to Rule 65 because it speaks
only of appeal. However according to a noted professor, the fresh day rule applies both to Rules 45 and 65
unless a new jurisprudence would otherwise provide.

NOTE: There was an old SC circular which provides that the 60 day period includes the filing of a Motion for
Reconsideration. However, in 2005 there was a new circular which states that the old circular does not apply to
Rule 65 so the 60 day period is counted from the notice of receipt of denial of the motion for reconsideration.

Q: Doctrine of UP Board of Regeants Case

A: In mandamus rights must be very, very clear so that if the right is doubtful, mandamus will not lie.

Q: Distinguish mandamus from quo warranto. For example: Mayor Atienza has a city attorney which is Atty. X
whom he replaced with Atty. Y with no valid reason. Against whom may Atty. X file mandamus and against
whom may he file quo warranto?
A: Atty. X can file mandamus against Mayor Atienza because by the latter's act he was excluded from the
enjoyment of his office. Atty. X can file quo warranto against Atty. Y because he is a usurper of Atty. X's office.
RULE 66 QUO WARRANTO
Q: What is the doctrine in the Mendoza Case?
A: Quo warranto is directed against the person and not against the office. Also plaintiff is not entitled to
backwages.

Q: Who initiates Quo warranto?

A: Office of the Solicitor General, public prosecutors and relators.

Q: Who are relators?

A: Private citizen who is entitled to the office.

Classic Example: Ninoy cannot file quo warranto against Marcos so his remedy was to file prohibition. He did
not succeed. He succeeded in the tarmac when he died. What is the moral of the story? Whatever you cannot
do living, you might succeed in death.

Q: Example 4 candidate for councilor filed a quo warranto against 8 elected counsilors of Manila. The court
dismissed the case. Why?
A: It is a rule that in filing quo warranto the person filing should be entitled to the position. So in this case it was
dismissed because how can 4 people fill up the position of 8 councilors.

Q: Jurisdiction?
A: Concurrent SC, CA or RTC but never in Sandiganbayan except in aid of appellate jurisdiction

Q: What does in aid of appellate jurisdiction mean?

A: When the appeal was made to the Sandiganbayan from MTC or RTC in cases of publice officials whose
salary grade is below 27

Q: Tuason Case
A: Certiorari will only lie against tribunal exercising judicial/quasi-judicial function.
RULE 67 EXPROPRIATION
Q: Who exercises jurisdiction?
A: The RTC because the action is not capable of pecuniary estimation. The value of the property being only
incidental to the case. (Russel V. Vestil, Brgy San Roque V. Heirs of Pastor)

Q: Venue?
A: Where the property is located.

Q: Who are the parties who may expropriate?

A: LGU's, government instrumentalities however a resolution authorizing expropriation must first be passed.

Q: Rule 67 is procedural. What is the substantive law which provides for expropriation?
A: The 1987 Constitution

Q: What properties are involved?

A: Any kind of property, whether real or personal

Q: What does taking mean?

A: Taking includes not just actual taking but also diminution/deprivation of benefits

Q: What does for public use mean?

A: It means that the purpose for taking would ultimately redound to the general welfare of the people

Q: May a law be passed authorizing the city of Manila to expropriate a portion of UST? May the compensation
be by way of exchange of property?
A: No there can be no compensation by way of exchange of property because the determination of Just
compensation is a judicial function.

Q: What is the remedy of the owner of the property?

A: 1. Mandamus
2. Quo warranto

Q: Which should be preferred, ownership or utility?

A: At first glance it would seem that ownership must be preferred but in reality it is utility because nature made
it so that you own only what you need and dispose of the things that you don't use. Pag wala nang
pakinabang, ipamigay mo na kagaya ng asawa mo.

Q: What is the formula for computing just compensation?

A: Just Compensation = Fair Market Value plus Consequential damages minus consequential benefit which
should not be more than consequential damages.

Q: What are the 2 parts of expropriation?

A:
The first stage is to determine whether or not the property can be devoted to public use. Second stage,
determination of the just compensation.
NOTE: Plaintiff upon deposit of the amount may enter the property

Q: Where should the deposit be made?

A: court or reputable bank

Q: How much should the deposit be?

A: Assessed value of the property

Q: Who determines Just compensation?

A: Determination of just compensation is a judicial function so there can be no compensation by agreement.
Q: Appointment of Commissioner
A: Not more than 3
Men of Integrity

Q: What is the effect of the report of the commissioner?

A: The report is not binding upon the court

Q: NPC case
A: Apparent conflict under Sec. 1 Rule 17 and Sec. 2 Rule 67

Q: Doctrine in the City of Manila V. Serrano

A: Expropriation should be a final recourse

RULE 68 JUDICIAL FORECLOSURE

Q: Application?
A: Applicable to both real estate and chattel mortgages.

Q: What does judicial foreclosure mean?

A: It has passed through court process.

Q: What should be filed?

A: Verified complaint of foreclosure absolute necessity to the mortgage

Q: Who should be included?

A: All parties who have interest over the property subordinate to that of the mortgagor.

Q: If a party interested is not impleaded what is the effect?

A: He is not affected by loss of equity of redemption.

Q: What is the object of foreclosure

A: Property

Q: Can a property mortgaged may still be attached?

A: Yes

Q: Distinguish right of redemption from equity of redemption.

A: Right of redemption is the 1 year period from registration of certificate of sale given to a person to redeem
the property. Equity of redemption is a right given to persons with interest within 90 days and not more than
120 days from entry of judgment to redeem the property.

Q: What is order of confirmation?

A: Confirmation of the sale of the property.

Q: Deficiency judgment
A: By filing a motion for deficiency judgment.

RULE 69 PARTITION

Q: What is the object of partition?

A: To assign property.

Q: Jurisdiction
A: RTC because the case is not capable of pecuniary estimation.

Q: What are the stages in partition?

A:
1. Determination of the existence of co-ownership - absence of which partition is unavailable
2. Determination of who are entitled and what properties to be distributed
NOTE: Each stage is final and appealable

Q: What kind of appeal?

A: By record of appeal because the action calls for multiple appeals.

Q: What is a project of partition?

A: Agreement between and among the parties in partition which is submitted to the court on which a judgment
of partition is made.

Q: Who prepares a project of partition?

A: Any of the co-owners

Q: Who are the parties in an action for partition?

A: Plaintiff - co-owner
Defendant - all other co-owners as indispensable parties

Q: What is the effect of the approval of the project?

A: Approval is equivalent to judgment of partition.

Q: If no project is agreed upon what should the court do?

A: Appoint a commissioner and the commissioner would make and submit a project of partition.

Q: If the parties still does not agree, what should commissioner do?
A: Assignment - identical to buying out.
NOTE: Even if only one of the co-owners objects, no assignment
Q: What then should the court do?
A: Sell the property and the proceeds distributed among and between co-owners. This is the last resort.

Q: May a sale be objected to? On what ground?

A: Yes sale may be objected to if it will not redound to the benefit of the co-owners.
NOTE: Commissioner should give report, however such is not binding upon the court.

Q: What does judgment of partition include?

A: It includes payment of the cost of accounting and damages.

Q: Doctrine of Heirs of Teves V. CA

A: Any activity that puts an end to indivision is a case of partition.

RULE 70

Q: What are the 3 kinds of action involving recovery of property?

A:
1. accion publiciana - right of possession
2. accion reinvindicatoria - recovery of ownership with possession as an attribute of ownership
3. accion interdictal - possession de facto
 a. forcible entry
b. unlawful detainer
i. governed by rule 70
ii. in case of agricultural property/land governed by the civil code

Q: Doctrine in Javellosa V. CA
A: Distinction between Unlawful detainer (UD) and Forcible Entry (FE)

UNLAWFUL DETAINER FORCIBLE ENTRY

Possession was lawful at the beginning Possession is illegal from the beginning
and became illegal thereafter
There is a need to establish prior There is no need to establish prior
possession possession
Illegal detention of the property Deprivation of the right of possession of
property
There is a need for demand No need for a demand
Action must be filed from period of 1 year Action must be filed 1 year from accrual of
from the last demand action
Possession was acquired by force, threat, Not applicable
intimidation or stealth

Q: Who are the aggrieved parties?

A: Vendor, vendee, lessor or any other person deprived of possession

Q: Is the lessee included?

A: Generally no because the lessee is assumed to be in possession. He may be included under those other
persons deprived of possession.

Q: In ejectment the only issue is possession de facto. Can you raise the issue of ownership? If so what is the
effect?
A: It will not divest the court of its jurisdiction. The court shall resolve the issue of ownership only to resolve the
issue of possession. Resolution as to ownership in ejectment cases is only provisional.
NOTE: Old rule prior to BP 129 provides that if issue of ownership is raised, the court is divested of its
jurisdiction.

Q: A is the lessor and B is the lessee who was not able to pay rentals for several months. A filed a case of
unlawful detainer against B. Judgment was rendered in favor of B. Is the judgment in favor of B immediately
executory?
A: No because he was already in possession of the property.

Q: What is immediately executory in the judgment as provided under sec.19?

A: The return of the property. Restoration or restitution to the one who is entitled to possession.

Q: How is execution stayed?

A: Requisites for stay of execution
1. Perfection of appeal by filing a notice of appeal
2. Supersedeas bond
3. Deposit of the amount for the use and occupancy of the premises

Q: What is a supersedeas bond?

A: Unpaid rentals. If there are no unpaid rentals there is no supercedeas bond.

Q: How much is the supersedeas bond?

A:
1. In accordance with judgment
2. If there is no judgment, in accordance with the contract
3. In the absence of contract, according to what was paid as rentals

Q: What is the amount for use and occupancy?

A: Payment of rental during the pendency of the appeal.

Q: How much?
A: Same as supersedeas bond.

Q: Where do you file notice of appeal?

A: In the municipal trial court

Q: Where do you file supersedeas bond?

A: In the municipal trial court

Q: Where do you file amount for use and occupancy?

A: In the appellate court

Q: When?
A: General rule on or before the 10th day of each succeeding month. For example the rent due for the month
of april should be paid on or before May 10.
Exception: When payment of rental must be paid in advance in accordance with the contract.
NOTE: Non-compliance with even one month would render the judgment immediately executory.

Q: Both Sec. 19 and Sec 21 speak of immediately executory judgment. How is Sec. 21 different from section
19?
A: Section 21 speaks of the judgment of the appellate court and such judgment cannot be stayed except when
defendant filed injunction.

Q: How about sec. 15 and sec. 20?

A: Sec 15 applies to Trial Court while Sec 20 applies to the appellate court. Injunctive relief is available to both
in order to stop defendant's act of dispossession

Q: Doctrine in Refugia Case

A: Motion for reconsideration is a prohibited pleading only in the MTC under summary procedure. When the
case has already been appealed to the RTC, MR is already allowed.
RULE 71

Q: What is contempt?
A: Upfront or defiance, act against dignity, integrity and justice of the court

Q: What are the two kinds?

A:
1. Direct Contempt
Done in the presence of or so near a judge that disrupted proceedings.
2. Indirect Contempt

Q: What are the remedies of a person cited in contempt?

A:
Direct Contempt
File a petition for certiorari and not an appeal because the judgment is only interlocutory
Indirect Contempt
1. File an appeal
2. Post a bond

Q: Doctrine in the case of Yasay V. Recto

A: Supreme Court said that the power of contempt must be used in preventive manner and not in vindictive
manner. The distinction between civil and criminal contempt was also abolished.