PROVISIONAL REMEDIES

The Kind Of Provisional Remedies

1. Preliminary Attachment
2. Preliminary Injunction
3. Receivership
4. Replevin
5. Support pendente lite

are writ and processes available during the pendency of an action to preserve
and protect certain rights and interests pending the result of the final judgment in the
case.

When may it How much

be availed? should be
the Bond
posted?
Preliminary May be The amount
Attachment sought at any of bond is
stage of the addressed to
action but the sound
before final discretion of
judgment. the court.
Preliminary -do- -do-
Injunction
Receivership Maybe filed Bond is
at any stage mandatory
of the action and the court
and even fixes it.
after final
judgment.
Replevin Must be file The bond is
before the double the
defendant value of the
filed his personal
answer. property
 seized.
Support Maybe No bond is
pendente lite sought at any generally
stage of the required.
action and
even for the
first time on
appeal.

RULE 57

PRELIMINARY ATTACHMENT

What Are Its Purposes?

1. To seize the property of the debtor in advance of the final judgment and to hold it for
purposes of satisfying the said judgment
2. To enable the court to acquire jurisdiction over the action by the actual or
constructive seizure of the property in instances where summons cannot be effected.

What Are The Requirements?

1. Affidavit which must contain all the allegations required and the circumstances on
why it should be granted.
2. Bond it is to answer for the damages and costs, which may be adjudged, to the
adverse party.
the defendant can file a counter bond at the courts discretion but the counter
bond must not be lower than the bond filed by the petitioner. Its purpose is to
satisfy the judgment.
Note: No notice to the adverse party or hearing of the application is required.

When Shall It Be Discharged?

1. The debtor has posted a counter bond.
2. The attachment was improperly issued, i.e., when there is no ground for attachment,
or the affidavit and/or bond filed are defective or insufficient.
3. The attachment is excessive.
4. The property attached is exempt from execution thus, also exempt from attachment.
5. The judgment is against the attaching party.
 RULE 58
PRELIMINARY INJUNCTION

What is Preliminary Injunction?

A judicial writ, process or proceedings whereby a party is ordered to do or refrain
from doing a particular act.
Prior notice is indispensable for the issuance of a writ of Preliminary Injunction(PI)
and a Temporary Restraining Order(TRO).
o Exception:
If the matter is of extreme urgency and the applicant may suffer injustice and
injury, the court may issue an ex parte TRO effective for only seventy-two(72)
hours from issuance, renewable after summary hearing for a period not
exceeding twenty(20) hours which includes the original 72 hours if previously
granted.

The Kinds Of Injunction

a. Preventive or prohibitive injunction requires a person to refrain from doing a
particular act.
b. Mandatory injunction requires the performance of a particular act.

What Is Its Purpose?

- to preserve the status quo, i.e., the last actual, peaceable, uncontested status which
precedes the pending controversy.

RULE 59
RECEIVERSHIP

Who is a Receiver?
- person appointed by the court in behalf of all the parties to an action for the purpose of
preserving the property involved in the suit and to protect the rights of all the parties under
the direction of the court.
- as a rule, a party to the case nor the clerk of court should not be appointed.

Note: no action maybe filed against the receiver without leave of court.
Note: Ex parte appointment of a receiver is no longer authorized, a hearing must be
conducted for that purpose.

What Are The Requirements?

1. Affidavit that the applicant has interest in the property that is the subject of the
litigation and there is an inevitable damage to it thus, the court must appoint a
receiver.
2. Bond in the amount fixed by the court, to cover all the damages by reason of the
appointment of a receiver. The court may require additional bond as further security.

RULE 60
REPLEVIN

What Is Its Purpose?

- to recover the possession of personal property.

What Are The Requirements?

1. Affidavit must allege that the applicant is the owner or entitled to possess the
property, the description of the property, the actual market value of the property,
and the person and why he withheld the property from the applicant.
2. Bond the amount to be posted must double the value of the property as stated in
the affidavit.

RULE 61

SUPPORT PENDENTE LITE

What Is Its Purpose?

To compel adverse party to provide support while action is pending in court.
No bond is required from the applicant.
The application must be verified and shall be set for hearing not more than three(3)
days from the filing of the petition.
 SPECIAL CIVIL ACTION

RULE 62
INTERPLEADER

What is Interpleader?
It is a Special Civil Action whereby a person who has property in his
possession or an obligation to perform, either wholly or partially, who claims no interest
in the subject, goes to the court and ask that conflicting claimants to that property or
obligation be required to litigate among themselves in order to determine finally who is
entitled to the same.
E.g. a) a warehouseman, with goods being claimed by 2 or more persons.
b) an insurer, with 2 or more claimants to an insurance proceeds.

RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES

What are the requisites for Declaratory Relief?

1. there is a justiciable controversy.
2. there must be adverse claim between the real parties in interest.
3. the subject matter is a written instrument, (such as a deed, will, contract), statute or a
law.
4. the relief sought is to determine the rights and duties under the written instrument or
statute.
5. there must be no breach or violation of the written instrument or statute yet. [Note:
The concept of a cause of action as an act or omission by which a person violates
the rights of another under ordinary civil action does not apply.]
6. there are no other available or sufficient remedy.

Instances When the Court Refuse to Grant Declaratory Relief?

1. When the decision would not terminate the controversy which gives rise to the
action.
2. When the declaration is not necessary and proper under the circumstances.

When should it not be used?

1. to be declared as a Filipino citizen.
2. to solve political question
3. to determine hereditary rights
 4. to resolve hypothetical or theoretical questions
5. those involving administrative cases (must first avail of the principle of
exhaustion of administrative remedies)

Conversion Into Ordinary Action

If after the filing of the petition but before the rendition of judgment, a breach or
violation occurs, then the petition may be converted into an ordinary action.

RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE COMELEC
AND COA

Time for Filing the Petition

Within thirty (30) days from notice of the judgment or final order sought to be
reviewed.
If the motion for reconsideration is denied, the aggrieved party has the remaining
period to file the petition, but not less than five(5) days in any event, reckoned from
notice of denial.

Mode of Review
To be filed exclusively to the Supreme Court.
Petition for Review under rule 65.

[Note: The filing of the petition shall not stay the execution of the judgments or final orders,
unless ordered by the Supreme Court.]

RULE 65
CERTIORARI, PROHIBITION, AND MANDAMUS

CERTIORARI
Requisites:
1. there must be a controversy
2. the respondent is a tribunal, board or an officer exercising judicial or quasi-
judicial functions [discretionary acts].
3. the respondents acted:
a. without jurisdiction
 b. in excess of jurisdiction
c. with grave abuse of discretion amounting to lack or excess of jurisdiction
4. there must be no appeal or other plain, speedy and adequate remedy.

EXCLUSIVE REMEDY OF APPEAL AND CERTIORARI

GENERAL RULE: If after judgment and the petition for certiorari is availed of instead of the
remedy of appeal, the certiorari must fail because it may not be resorted to as a substitute
to appeal; in such a case appeal is deemed abandoned.
EXCEPTIONS: Even when appeal is available, a writ for execution may be allowed;
1. When the appeal does not constitute a speedy and adequate remedy.
2. When judgment were issued either in excess of or without jurisdiction.
3. When for certain special considerations as public policy or public welfare.
4. When the judgment is patently void.
5. When the decision in the certiorari case will avoid future actions.

PROHIBITION
Requisites
1. there must be a controversy
2. the respondent is a tribunal, board or an officer exercising judicial, quasi-judicial
[discretionary acts] or ministerial functions.
3. the respondent acted:
a. without jurisdiction
b. in excess of jurisdiction
c. with grave abuse of discretion amounting to lack or excess of jurisdiction
4. there must be no appeal or other plain, speedy and adequate remedy.

MANDAMUS
Requisites
1. there must be a clear legal right or duty.
2. the act performed must be practical- within the powers of the respondent to
perform such if issued and he can comply with it or else the essence will be
defeated.
3. the respondent must be exercising a ministerial duty.
4. the duty or act to be performed must be existing a correlative right will be
denied if not performed by the respondents.
5. there must be no appeal or other plain, speedy and adequate remedy.

NOTE: An ordinary action for certiorari, prohibition and mandamus are independent action
thus:
1. does not interrupt the course of the principal action.
2. does not affect the running of the prescriptive period involved in the case.
3. does not stay the execution of the judgment, unless a TRO or a PI is issued.

EXHAUSTION OF ADMINISTRATIVE REMEDY

GENERAL RULE: a motion for reconsideration is a prerequisite before the filing of a petition
for certiorari, prohibition or mandamus. Its purpose is to give the court a quo the opportunity
to correct itself.
EXCEPTIONS:
1. If the judgment or order is patently void.
2. If there is extreme urgency.
3. If the issue has been raised and promptly passed by the court.
4. If the issue is purely a question of law.
5. If for public purpose.

RULE 66
QUO WARRANTO

What is Quo Warranto?

It is a special civil action to determine the right to the use or exercise of an office or a
franchise, and to oust the holder from its enjoyment if his claim is not well founded or if
he has forfeited his right to enjoy the privilege.

Classification of a Quo Warranto proceedings.

1. Mandatory- brought by the Solicitor General or a public prosecutor when:
a. directed by the president, and
b. upon complaint or when he has reason to believe that it can be established by
proof.
2. Discretionary- brought by the Solicitor General or a public prosecutor upon the
request a person but there must be:
a. leave of court, and
b. indemnity bond

NOTE: The period for the filing of Quo Warranto proceedings is within one(1) year from the
date the cause of action arose.

DISTINCTIONS
QUO WARRANTO MANDAMUS
1. There is a There is an ousting
 usurpation of from office by
public office by another but does
another and not assume the
assumes office. office.

2. The right to The right or legal

office of the duty is clear, so
occupant is not the purpose of the
clear so this right action is to enforce
becomes the the right.
subject of the
action.

QUO WARRANTO ELECTION

CONTEST
1. As to the basis:
The occupant of The person
the office is holding the office
disqualified from is not entitled to it
holding the office because of
because of irregularity in the
ineligibility or conduct of
disloyalty to the election.
republic.

2. As to the effect:
If the petitioner If the protestant
succeeds, the succeeds, he will
respondent will be assume office if he
ousted and the had obtained a
petitioner will plurality of the
assume the office. valid vote.

RULE 67
EXPROPRIATION
 EMINENT DOMAIN is the right of the state to acquire private property for public use
upon payment of just compensation.
EXPROPRIATION is the procedure to be observed in the exercise of the right of
eminent domain in instances such as:
1. When the owner refuses to sell his property.
2. When he agrees to sell but an agreement as to the price cannot be reached.
NOTE: All properties can be expropriated except money and chooses in action.

Two Stages in Expropriation

1. Determine first if the property taken is for public purpose.
2. If it was determined that it is for public purpose, resolve the issue on the amount to
be paid or the just compensation

Just Compensation is determined at the time of the taking of the property or at the filing of
the complaint which ever comes first. It is the fair and full equivalent for the loss sustained
by the defendant.

NOTE: The conflict in the payment of just compensation or an appeal does not delay the
right of the plaintiff to enter into the property and appropriate the same for public use.

RULE 68
FORECLOSURE OF REAL ESTATE MARTGAGE

Parties:
1. mortgagee and mortgagor
2. successor in interest
3. junior encumbrancer/s

Nature and purpose:

The remedy used for the satisfaction of any monetary obligation, which a person
owes to another, by proceeding against the property used to secure the obligation.
It purpose is to cut off the rights of the owner of the property mortgaged used to
secure the obligation and all rights acquired thereto.

NOTE:
Within the one(1) year period given to the mortgagor to redeem, the buyer may
take possession of the property but must pay a bond equivalent to the amount of a
rent.
 If there is deficiency judgment, the action may continue in the same proceedings
except to non-resident defendants.

Effect if the Junior Encumbrancer is not pleaded:

1. his right is not affected because he is merely a necessary party not an
indispensable party.
2. the remedy of the senior encumbrancer is to file independent actions to foreclose
the right to redeem by requiring the junior encumbrancer to pay the amount stated in
the order of execution.

JUDICIAL EXTRAJUDICIAL
FORECLOSURE FORECLOSURE
Requires court No court
intervention intervention
necessary
There is only There exist
an Equity of a Right of
Redemption is the Redemption is the
right of the right of the debtor,
defendant his successor in
mortgagor to interest or any
extinguish the judicial creditor or
mortgage and judgment creditor of
retain ownership of the debtor or any
the property by person having a
paying the debt lien on the property
within 90-120 days subsequent to the
after the entry of mortgage or deed
judgment or even of trust under which
after the sale but the property is sold
before confirmation. to redeem the
property within
one(1) year from
the registration of
the of the sheriffs
certificate of
foreclosure sale.
Governed by Rule Governed by
68 sec.29-31 of Rule
39
 RULE 69
PARTITION
What is Partition?
It is the process of dividing and assigning property owned in common among the
various co-owners in proportion to their respective interests in said property.

When can Partition be made?

GENERAL RULE: It can be made anytime and the right to demand partition
is imprescriptible.
EXCEPTION: If the co-owner asserts adverse title to the property in which case the period
of prescription runs from such time of assertion of the adverse claim.

TWO(2) STAGES:
1. Determination of the Propriety of the Partition. Includes the question whether or not
the property is owned in common or whether or not all the co-owners are made parties.
If the court find that there must be partition, the aggrieved party may appeal the
decision.
2. Actual Partitioning of the Subject Property.
The parties may agree on the partition by executing a Deed of Partition, where it
will become final after the court approves it. The aggrieved party may appeal the
decision.
If the parties does come into an agreement as to how to partition the property, the
case will be heard through trial by commissioner.
NOTE: No partition of personal property.

RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER

FORCIBLE UNLAWFUL
ENTRY DETAINER
Possession of Possession is
the land by the lawful but it
defendant is becomes illegal
unlawful from the because of the
beginning as he termination of the
acquires it right to the
by Force, possession of the
Intimidation, property under his
 Strategy, Threat contract w/ the
or plaintiff.
Stealth [FISTS]
No previous Formal
Demand is Demand is
necessary. mandatory if the
ground is non-
payment of rentals
or failure to comply
with the lease
contract
The plaintiff The plaintiff need
must prove that not have been in
he was in prior prior physical
physical possession.
possession of the
premises until he
was deprived.
The 1 year Period is counted
period is from the date of
generally counted last demand or last
from the date of letter of demand.
actual entry on
the land.

NOTE: Demand under this section is jurisdictional. It is a two-fold demand:

a. to pay and vacate; or
b. to comply with the conditions of the lease and vacate.

How is Demand Made?

1. personally
2. by posting it at the premises, possible only if there no person found in the
premises
3. substituted service
4. registered mail

GENERAL RULE: Judgment of the MTC in ejectment proceedings is immediately executory

when:
1) The defendant perfects his appeal.
2) He files sufficient supersedeas bond to pay the rents, damages and cost accruing
down to the time of judgment appealed from.[NOTE: supersedeas bond is required only
if arrearages in the rentals is awarded in the judgment by the court]
3) He deposits with the appellate court the amount of rent due from time to time under a
contract or reasonable amount for the use and occupation of the property in the absence
of a contract.

RULE 71
CONTEMPT

DIRECT INDIRECT
CONTEMPT CONTEMPT
1. Nature:
Summary in There must first
nature be a hearing
2. Grounds:
c. Misbehavior in a. Misbehavior
the presence of of an officer of a
or so near the a court in the
court as to performance of
interrupt a his official
proceedings. duties.
d. Disrespect b. Disobedience
towards the court or resistance to
or judge. a lawful writ,
e. Offensive order or
personalities judgment.
towards others. c. Any abuse or
f. Refusal to be any unlawful
sworn or to interference with
answer as a the proceedings
witness or to not constituting
subscribe an direct contempt.
affidavit or d. Any improper
deposition. conduct tending
to degrade the
administration of
justice.
e. Assuming to
be an attorney
or an officer of
the court w/o
authority.
f. Failure to
obey a
subpoena
g. Rescue, or
attempted
rescue of a
person or
property in the
custody of an
officer.
3. Penalty:
a. RTC- fine not a. RTC- fine
exceeding not exceeding
P2,000 or P2,000 or
imprisonment not imprisonment
exceeding 10 not exceeding
days or both. 10 days or both.
b. MTC- fine not b. MTC- fine
exceeding P200 not exceeding
or imprisonment P200 or
not exceeding 1 imprisonment
day or both. not exceeding 1
day or both.