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allow execution of a judgment that is being reviewed by the Court of Appeals when the judgment is rendered by
quasi-judicial bodies but we do not allow that when the judgment is rendered by the Regional Trial Court? One
reason given in the Rules is that in quasi-judicial bodies the quantum of evidence is only substantial evidence
whereas in the Regional Trial Court the quantum of evidence is preponderance of evidence.
If we compare also the remedies available to the defeated party before the trial court and before the appellate
courts, like the Regional Trial Court, the Court of Appeals and Supreme Courts we will also notice that if the
appellate court becomes higher and higher, the remedies available to the defeated party on that appeal is
considerably lessen. Yesterday we said that before the court of origin whether it is an inferior court or a Regional
Trial Court, the aggrieved party can file a motion for new trial, he can file a motion for recon and he can also
appeal, so there can be three remedies before judgment is entered.
From the inferior court we go to the Regional Trial Court. The Regional Trial Court also renders its own
decision. Can a defeated party can still file motion for reconsideration? Yes. There could still be motion for
reconsideration; there could still be motion for new trial before the Regional Trial Court, even if the Regional
Trial has decided the case in the exercise of its appellate jurisdiction. There could be another appeal to the Court
of Appeals in fact this will now be the second appeal. If the Court of Appeals has rendered its own decision, can
the defeated party make use of the remedies that we mentioned? Can he file a motion for reconsideration? The
answer is also yes. There could be motion for reconsideration before the Court of Appeals. Can there be a
motion for new trial before the Court of Appeals? Yes there is still a motion for new trial before the Court of
Appeals. But this time, there is only one ground for new trial before the Court of Appeals. The new trial in the
can be founded only newly discovered evidence. We cannot anymore use fraud, accidents, mistakes and
excusable negligence. And if you read carefully the provisions of the rules on appeals to the Court of Appeals,
you will notice that while a motion for new trial could still be availed of in the Court of Appeals it is not
necessary to wait for the Court of Appeals to decide the case. Even if the case has not yet been decided by the
Court of Appeals, the movant can already file a motion for new trial based on newly discovered evidence that is
not possible when the case is before an inferior court or even before the Regional Trial Court acting as an
appellate court, in the Regional Trial Court we have to wait for the Regional Trial Court to render a decision
before we can file a motion for reconsideration or motion for new trial. With respect to the Court of Appeals, we
should also wait for the decision of the Court of Appeals before we can move for reconsideration but when it
comes to a motion for new trial we do not have to wait for Court of Appeals to render a decision before we can
make use of a motion for new trial founded on newly discovered evidence that is clearly spelled out in the rules.
The availability of a motion for new trial before the Court of Appeals as long as the case is within the jurisdiction
of Court of Appeals. Even if the Court of Appeals has not yet decided the case, there could be a motion for new
trial founded on newly discovered evidence and that is the only ground for new trial in the Court of Appeals.
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We don’t make use fraud, accident, mistake or excusable negligence. But when the case finally reaches the
Supreme Court and the Supreme Court has decided the case, then the only remedy available, among the
motions that we mentioned will be a motion for reconsideration. The Supreme Court does not entertain a
motion for new trial regardless of the merit of that motion for new trial. The reason given by the Supreme Court
is that the Supreme Court generally is not a trier of facts and a motion for new trial, will always involved a
question of fact based on newly discovered evidence. So this remedy of motion for new trial will end to the
Court of Appeals as an appellate court but remember the new trial with the Court of Appeals is limited to only
one ground and it is newly discovered evidence. While a new trial filed before the Regional Trial Court can
involve newly discovered evidence, it can involve fraud, accident, mistakes and excusable negligence.
With respect to Rule 45, this is appeal by certiorari to the Supreme Court, in civil cases this is the only mode
used. In other words, we cannot use notice of appeal we cannot use a petition for review the Supreme Court
strictly applies this rule on appeal. It does not mean to say however that we cannot go up to the Supreme Court
by simply filing a notice of appeal or ordinary appeal, what the rules prohibit is ordinary appeal to the Supreme
Court that is notice of appeal if it is a civil case if the case is a criminal case, there could be a notice of appeal to
the Supreme Court such as when the penalty imposed is life imprisonment or reclusion perpetua by the Court of
Appeals, the appeal from that criminal case will be by notice of appeal, it will not be an appeal by petition for
review on certiorari. In a petition for review on certiorari filed before the Court of Appeals, it is axiomatic that
only question of law can be raised. So if we raised question of law and also a question of fact before the Supreme
Court, the Supreme Court will not necessarily disallow the appeal, the rules say that if the issues raised in an
appeal under Rule 45 are both factual and legal, the Supreme Court has the discretion to remand the case to the
Court of Appeals but that is always a matter of discretion. And when the Supreme Court sends the case to the
Court of Appeals because the issues raised are both factual and legal the Court of Appeals will have the duty
now to review the case and renders its own decision. But the opposite does not apply such as when the Court of
Appeal is the appellate court let us say there is an appeal to the Court of Appeals through ordinary appeal, the
court of origin being a Regional Trial Court. The mode of appeal as we said is ordinary appeal he simply file a
notice of appeal with the Regional Trial Court and pay the appellate court a docket fee. It is in this kind of
appeal, that the Court of Appeals where the rules require the appellant to submit his brief on appeal that is why
sometimes in court’s decisions you will meet the term brief for the appellant and brief for the appellee, these
submissions are required only if the appeal is by ordinary appeal the trial court is the Regional Trial Court and
the appellate court is the Court of Appeals. If the trial court is an inferior court and there is an appeal to the
Regional Trial Court and from the Regional Trial Court we go up to the Court of Appeals we don’t use ordinary
appeal, the mode is petition for review. If the court of origin is a Regional Trial Court exercising original
jurisdiction, the mode of appeal is by ordinary appeal, notice of appeal to the Court of Appeals. During the
pendency of the appeal, the Court of Appeals will require the appellant to submit a brief, called a brief for the
appellant. Then the rules also provide for the contents of that brief for the appellant. If the appellant does not
submit his brief on time, that will be enough reason to dismiss the appeal. Even if the submits his brief on time,
the appeal could still be dismissed if the brief submitted by the appellant does not contain the essentials
mentioned in the Rules of Court. If you will read the provisions of the rules as to the contents of the brief for the
appellant, you will noticed that the brief for the appellant will be divided into several chapters, there is this
subject index there is this statement of the case there is this statement of facts, arguments and errors assigned by
the appellant. If the brief for the appellant does not contain an assignment of errors, that is fatal, the court will
dismiss the appeal even if there is a brief submitted by the appellant if the brief does not contain assignment of
errors. Why is the Court of Appeals is very much interested in that chapter in a brief that is the assignment of
errors, without which the appeal will be dismissed? The assignment of errors is essential in an appeal to the
Court of Appeals by ordinary appeal because in so far as the Court of Appeals that decision appealed from, that
is the decision rendered by the Regional Trial Court is a correct decision. Remember that in our Rules on
Evidence there is disputable presumption that a decision rendered by any court is a correct decision, a
presumption of regularity in the performance of official duty. So if the court decides a case there is a
presumption of regularity so there is a presumption that the decision rendered by the court is a correct decision.
The Court of Appeals will always be applying that disputable presumption whenever there is an appeal in a
civil case to the Court of Appeals. In fact that same attitude will be adopted by the Supreme Court whenever
there is an appeal brought to the Supreme Court under Rule 45, that disputable presumption as to the
correctness of the decision appealed from. Since the Court of Appeals will look at the decision of the Regional
Trial Court as a correct decision, the only means by which the appellant can destroy or overturn such
presumption is by convincing the Court of Appeals that serious errors have been committed by the Regional
Trial Court. And the problem of the appellant is that he is not allowed to introduce evidence to show that errors
are have been committed by the Regional Trial Court, the appellant will have to rely on the records that have
already been submitted before the Regional Trial Court. So the only way by which he can possibly convince the
Court of Appeals that errors have been committed by the Regional Trial Court is to make an assignment of
errors. If the appellant cannot make an assignment of errors in his brief that means to say that the appellant
finds nothing wrong with the decision rendered by the Regional Trial Court, therefore the disputable
presumption stays, it will still be used by the Court of Appeals. That is why this chapter in a brief for the
appellant about assignment of error is always essential. Its absence will be fatal in appeal. The appeal can be
dismissed if there is no assignment of errors in the brief submitted by the appellant. Can the appellant let us say
in his brief assign as an error first and only error assigned “the Regional Trial Court committed an error
deciding the case against the appellant”? That is not the assignment of error that is expected by the Court of
Appeals. The errors should be specified particular facts, conduct, orders issued by the court, which could have
affected his substantial rights which brings us now to the concept of harmless errors in appeal. In Rule 51
Section 6 that is the section on harmless errors with respect to appeals. In any litigation we could expect that the
trial court must have committed errors during the proceedings. After all the judge is also a part of humanity so
he could commit errors just like lawyers who represented their clients they could commit errors also. But in that
principle of harmless error in given in Rule 51, it is expressly provided that only errors committed by the court
in admission of evidence, in issuing orders that affects substantial rights of the appellant will be considered by
the appellate court. So if the error committed by court does not really affect the substantial rights of the
appellant, the error will be disregarded by the court even if it is made part of the assignment of errors. This
requirement on assignment of errors gives the message that in civil cases that are brought on appeal the
appellate court will only resolve the issues raised in the assignment of errors no other issues generally will be
resolved by the court only the errors assigned by the appellant in his brief. The only exception when the
appellate court or Court of Appeals will resolve other issues not raised in the assignment is when the Court of
Appeals sees that an issue is closely related to one of the issues raised by the appellant in his brief. That is why
we have also rule on appeals that the authority of the appellate court is only to resolve issues in the assignment
of errors made by the appellant. But again this rule applies only to a civil case it does not apply to a criminal
case. In a criminal case if there is an error committed by the trial court whether it is assigned as an error or not
assigned as an error the Court of Appeals or even the Supreme Court can take that into consideration in
resolving the case. The appellate courts are very flexible in a criminal case that are brought before them from a
decision of a trial court unlike in a civil case where there is a provision which limits the authority of the
appellate court to resolve only the errors or issues that are connected with the assignment of errors made in the
brief for the appellant.
If it is the appellant who does not submit a brief, the appeal will be dismissed. If it is the appellee who does not
submit his brief, the appeal will not be dismissed. The appellee can choose not to submit a brief at all. If the
appellee does not submit a brief, then the court will simply decide the case without a brief coming from the
appellee. It is the brief for the appellant whose non-submission could lead to the dismissal of an appeal. In the
Supreme Court under Rule 45 although Rule 45 is very clear in saying that only questions of law could be raised
in petition for review on certiorari the Supreme Court has recognized a number of exceptions. As of last count,
there are about 14 exceptional issues where the Supreme Court has allowed an appeal although factual issues
were raised in that petition for review on certiorari. I suggest that you memorize about five of them and that will
probably be enough for you to answer problems on appeals concerning Rule 45. In fact you can immediately
point three exceptions which are not a product of jurisprudence but a product of the circulars of the Supreme
Court where factual issues can be raised in a petition under Rule 45. The first one is kalikasan cases, the second
one is amparo and the third is habeas data. Under circulars of the Supreme Court on these three proceedings,
kalikasan, amparo and habeas data, the appeal to the Supreme Court should also be by petition for review on
certiorari and the circulars also provide that both factual and legal questions can be raised before Court of
Appeals under Rule 45.
Rule 39 is described by the decisions of Supreme Court as the rule that which gives life to the law. It gives
life to the law in a sense that the winning party will be able to recover the award given in his favor through the
use of Rule 39. So if the civil case is for the recovery of money and the court awards let us say 2 million in favor
of the judgment creditor, the creditor of course will not be satisfied unless the 2 million is delivered to him. It is
not correct to assume that in order to satisfy the judgment we should always make use Rule 39. Satisfaction of
judgment as conceived in Rule 39 is a forcible satisfaction of judgment. So if the award in favor of the judgment
creditor is for the payment by the judgment debtor of 2 million pesos, the judgment creditor does not even have
to think about Rule 39 as long as he receives 2 million pesos from the judgment debtor. In other words, the
judgment debtor can voluntarily pay 2 million pesos to the creditor. It is only in that situation where the
judgment debtor refuses to pay where the only remedy of the judgment creditor to enforce payment is to make
use of Rule 39, that is to force the debtor to pay 2 million pesos by making a levy on his properties and by selling
this levied properties at public auction. That is the function of Rule 39 that is a forcible satisfaction of a final and
executory judgment. In the ordinary course of things, if there is an appeal from the decision rendered by the trial
court and it has reached the Supreme Court even if the decision has been affirmed by the Supreme Court and
the decision of the Supreme Court has been entered, it is not correct for the judgment creditor to ask for
execution from the Supreme Court. The matter of execution is a duty of the court of origin, if it is the inferior
court that originated the case it is the inferior court that will have the duty to enforce satisfaction of the claim.
The higher courts usually do not issue an order for the execution of judgment. What the lawyer for the judgment
creditor should do is to wait for the records to be returned to the court of origin. It could take time before the
records simply return to the court of origin. So if the records have not yet been received by the inferior court and
the judgment creditor files a motion for execution there is likelihood that the inferior court will tell him we have
not yet received the record so we cannot act on your motion although the issuance of execution, the granting the
motion for execution is already a ministerial duty of the court. Rule 39 has provided for the remedy in this
situation. If there is an appeal that has reached the Supreme Court or Court of Appeals as the case may be, the
appellate court will simply issue a certified true copy of the entry of judgment and that certified true copy will
be submitted immediately to the court of origin that could be the basis of the granting of a motion for execution
that is enough proof that there is really a final and executory judgment. Is there a need for the judgment creditor
to file a motion for execution? Of course there is always a need, if the judgment creditor does not file a motion
for execution the court has no business issuing a writ of execution because the court will not know whether
there has been voluntary satisfaction of the judgment so there has to be a motion for execution filed by the
judgment creditor. Since the judgment has become final and executory and it is now the ministerial duty of the
court to grant the motion and to issue a writ of execution, can the motion for execution can be heard ex parte?
This is without notifying the judgment debtor, without giving him a copy even with the motion. This issue
which is the subject of conflicting decisions of the Court the latest that I know of says that a motion for execution
of a final and executory judgment can be heard ex parte by the trial court but previous decisions are to the effect
that the judgment debtor should also be given a copy of the motion for execution because the judgment debtor
may have grounds to oppose the issuance of the writ of execution. You adopt that old doctrine that the motion
for execution of a final and executory judgment should always be furnished upon the judgment debtor and that
the motion cannot be heard ex parte.
In the Rules, there is a period fixed within which the court can grant a motion for execution as a ministerial
duty. It is 5 years from entry of judgment. Then after the end of 5 years there could be revival of judgment, no
longer a motion but an independent action to revive the judgment but the independent action to revive the
judgment must be filed within the second five year period. The rules assume that the period of prescription for
the enforcement of a judgment is a ten year period. Is this a correct assumption? The answer is yes because that
is so provided in the Civil Code. The prescriptive period for the enforcement of a final and executory judgment
is really a period of ten years under the Civil Code. But what Rule 39 has provided is to divide the ten year
period into two parts. First five year and the second five year period, within the first five years you can execute
the judgment through a mere motion, a motion for execution. After the lapse of the first five year period, can the
judgment creditor still file a motion for execution? Not anymore. If he files a motion for execution, let us say on
the 7th year of the 10 year period, the court will deny the motion because the court does no longer have the
authority to order execution through the granting of a motion for execution. The second five year period is
designed to force the judgment creditor to file a separate complaint, an independent action for the revival of that
judgment. So the motion for execution should be filed within the first 5 year period of this 10 year period. Is the
first 5 year period strictly implemented by the Rules? It is not. Can it be extended? It can be extended according
to the Rules. The Supreme Court has decided that if the execution of the judgment within the first 5 year is
delayed and delay is attributable to the conduct or act that is traceable solely to the judgment debtor again the 5
year period is correspondingly extended that is equal to the period of delay caused by the conduct of the
judgment debtor. For example, within the first 5 years from entry of judgment, the judgment creditor files a
motion for execution. Let us say that the motion was filed on the 3rd year of the 5 year period. The judgment
debtor is given a copy of the motion, after receiving a copy of that motion for execution the judgment debtor
files a petition for the annulment of the judgment before the Court of Appeals. We assume that the execution
court is the Regional Trial Court. There is now a petition to annul the judgment under Rule 47, filed with the
Court of Appeals. And the Court of Appeals grants a preliminary injunction which is a relief sought by the
judgment debtor in his petition of annulment of judgment. Because of this preliminary injunction issued by the
Court of Appeals we cannot expect the Regional Trial Court to order the enforcement of that decision. So it will
take let us say the Court of Appeals a period of 2 years within in which to finally decide the case. At the end, the
Court of Appeals orders the dismissal for petition for annulment of judgment. So there is a delay by 2 years. If
the 5 year period has already lapsed then we are going to add another 2 years with that 5 year period. So the 5
year period will be deemed automatically extended up to 7 years within which to execute the judgment to the
filing of a mere motion. That is how the Supreme Court describes how this first 5 year and second 5 year period
should be interpreted. It is not a fixed period. It could be extended by circumstances that could arise for each
and every case where there is a delay in execution arising from the conduct of the judgment debtor. It simply
means that the judgment debtor can really delay the execution of judgment. In fact he is given at least 2
remedies under the Rules even if the judgment has already become final and executory. As we said yesterday,
Rule 38 is one means of delaying the execution of judgment. In Rule 38, the court that has decided the case can
issue an injunction against the enforcement of its own decision. Rule 47 is another remedy available to the
judgment debtor in order to delay the enforcement of a final and executory judgment. As long as in that petition
to annul a judgment there is a corresponding provisional remedy of preliminary injunction that is issued by the
higher court. In annulment of judgment, the court where we file the case will always be a court higher than the
trial court. If the trial is Regional Trial Court, the annulment court will be the Court of Appeals. If the deciding
court is an inferior court, the annulment court will be a Regional Trial Court. So there is no way by which the
trial court can disobey the writ of preliminary injunction issued by this higher court. If the motion for execution
is granted, which is expected because the judgment has become final and executory, can the judgment debtor
appeal from the order granting the motion for execution? The answer is in Rule 41 section 1, an order granting
execution is not appealable. Although it will be treated as a final order, the only remedy of the judgment debtor
is to file a petition under Rule 65. Supposing the trial court denies a motion for execution of a judgment that has
already been entered. Is appeal the remedy of the judgment creditor? The answer is no. The remedy of the
judgment creditor is to appeal. That will be disadvantageous to the judgment creditor. The creditor should also
resort to Rule 65 but the petition that he should file is a petition for mandamus because mandamus is a writ that
will compel respondent to perform a ministerial duty and in Rule 39, as long as the judgment has been entered it
becomes the ministerial duty of the trial court to grant the motion for execution. So that is an act that is
compellable by a writ of mandamus. So that is the remedy of judgment creditor. Can the trial court rightfully
deny a motion for execution although the judgment has been entered or can the trial court rightfully quash a
writ of execution that is issued because the judgment has become final and executory? The general rule, the trial
court cannot quash or rightfully deny a motion for execution if the judgment has been entered but there are
certain exceptions recognized by the court. First, when the judgment sought to be enforced has been novated or
the judgment has already become dormant. The five 5 year period has already stared and no motion for
execution has been filed by the judgment creditor. When the only remedy left in so far as the judgment creditor
is concern is an independent action to revive the judgment he cannot substitute by a mere filing of a motion for
execution. He should avail of this independent action to revive a dormant judgment. Can the parties, the
judgment debtor and judgment creditor enter into a compromise agreement after the judgment has become final
and executory? The answer is yes. What happens to the judgment if there is a comprise agreement signed by
both debtor and creditor and whose terms are not consistent with the award given; the effect is the compromise
agreement will novate the judgment. So if the judgment awards to the judgment creditor a 2 million pesos but
because the debtor and the creditor are long-time friends and they agree to enter into a compromise agreement
where they provide that the entitlement of the judgment creditor is reduced from 2 million to P1.5 million and
that the debtor will have a period of 1 year within which to mitigate fully the obligation. That compromise
agreement is the law between the creditor and the debtor and that will have the effect of novating the judgment.
So if the debtor does not still pay, the court will no longer grant a motion for execution of the award that has
been given in the dispositive portion of the duly entered judgment. So the parties can novate by the act of the
parties the terms of a judgment that has been duly entered, it can still be changed that is an application of the
rule on novation in the Civil Code. Novation is a means in which an obligation is extinguished. Supposing that
within the first five year period the court grants a motion for execution and the court issues the writ of
execution. The writ of execution is carried out by virtue of a levy on execution on the properties of the judgment
debtor but the properties levied upon were not sold within the first five year period so at the end of the first five
year period there is a writ of execution, there is levy on execution of properties of judgment debtor but these
properties were not been sold at public auction we are now in the 6th year or 7th year of the 10 year period. Can
the properties levied upon within the first 5 year period be sold at public auction on year six or seven? The
answer is yes. According to the court, the first five year period does not require that the execution, the actual
levy and sale of property must be done within the first five year period. It is enough that there is a motion for
execution filed, the motion is granted by the court, and there is an actual levy of properties of the judgment
debtor. It does not matter if the actual sale of the levied property takes place after the end of 5 years. So what is
important in so far as the first 5 year period is concern is that there must be an actual levy on the properties of
the judgment debtor. So that the levy that carried out of the judgment can be enforced even beyond the five year
period. There was another case involving again this first 5 year period and second 5 year period where in year 7
of the 10 year period the judgment creditor whom elected to file a motion for execution filed a motion of
execution on year 7 and then the judgment creditor furnish the judgment debtor of this motion and the
judgment creditor convinced the judgment debtor not to oppose the granting of the motion so the judgment
debtor will accommodate the judgment creditor even filed his written position that he is not objecting to the
granting of the motion for execution. Because there is a manifestation by the judgment debtor that he is not
opposing the granting of the motion for execution although it was already year 7 the court granted the motion
for execution and then the writ was issued and properties of the judgment debtor were levied upon. When the
judgment debtor saw that his properties were levied upon he changed his mind. He challenged the validity of
the writ of execution issued on year 7 of the 10 year period. And the court sustained this stand of the judgment
debtor. The court said that after the end of the first 5 year period the court losses jurisdiction to execute a
judgment by a mere motion. And the fact that the judgment debtor did not oppose the issuance of the writ does
not matter because the issue is now one of the jurisdictions. The jurisdiction cannot be vested upon in court
simply by inaction on the part of the parties. So it is settled that when there is a writ of execution issued by the
court after the first 5 year period because the motion was filed also after the first 5 year period the proceedings
taken by the court will be irrelevant and will be void. The issuance of writ of execution is void and therefore the
writ can still be quashed for lack of jurisdiction. With the respect to revival mentioned in the rules pertaining to
the second 5 year period. This is an independent action. Since it is an independent action, if the original action
was a real action for the recovery of title to or possession of a property, can we consider the petition to revive the
judgment still as a real action? The Supreme Court said yes. If the original action is a real action, the action to
revive that judgment will also be a real action and therefore the venue in Rule 4 still apply. If the action is a real
action the venue is the place where the property is situated. So the action to revive that judgment should also be
the place where the property is situated. An action to revive the judgment since it is an independent action will
always be cognizable by the Regional Trial Court because it is not capable of pecuniary estimation. So if the
decision sought to be revived is a decision rendered by an inferior court we do not file the petition to revive the
judgment before an inferior court. We always file the petition to revive the judgment with the Regional Trial
Court because we have to determine for purposes of jurisdiction whether the revival of a judgment is capable or
incapable of pecuniary estimation. It is incapable of pecuniary estimation and it is cognizable therefore by the
Regional Trial Court under BP 129.
There is another section in Rule 39, section 34. It is more specific than section 6 when it comes to the use of term
“revival of judgment”. If you read carefully section 34, there is a mention of “revival of judgment”. The revival
of judgment in section 34 is not the revival of a judgment that has become dormant. The revival of judgment that
is carried out after the end of the first five year period refers to a judgment that has become dormant. It is a
dormant judgment so we have to revive it. The term revival of judgment in section 34 does not refer to a
dormant judgment. In fact, section 34 refers to a judgment that has already been executed so it could not be a
dormant judgment. It must be an executed judgment. But why does Rule 39 provide as a remedy revival of
judgment although it has been previously executed? The situation contemplated in section 34 is that judgment is
executed, properties are levied upon, and these properties had been sold in public auction but the highest bidder
or anybody who thereafter acquires the property is not able to get possession of the property because of
opposition or because of legal obligations that are related to the execution of judgment. So there is a difference
between revival contemplated in section 34 that a judgment has been executed and revival of a dormant
judgment wherein there is no execution that has taken place within the first 5 year of the prescriptive period of
10 years. Take note if these differences between revival mentioned in section 6 and revival mentioned in section
34. The improvement given by Rule 39 in the 1997 Rules, in so far as the judgment creditor is concerned is that
under the present rules, the writ of execution issued by the court by virtue of a motion for execution has a life of
5 years. So judgment creditor does not have to keep on filing one motion for execution after another, which was
the practice in the past. Because in the past the life of the writ of execution was a very short period, I think it is
only 60 days. But at present, it is has a period of 5 years. So at any time within the five year period, the sheriff
could enforce the writ. The sheriff could make a levy on the properties of the judgment debtor at any time
within the 5 year period. The only limitation enforced by the rules is that the sheriff must make a periodic report
to the court as to the progress of the process of execution. So the life of the legal execution under Rule 39, at
present, is a very long period of 5 years. How does the court enforce a duly entered judgment through the
granting a writ of execution and the issuance a writ of execution? It all depends on the tenor of the judgment. If
the judgment awards money, there will be a levy on execution of properties. If the judgment is on delivery of
property or delivery documents, then there will be no levy on execution of properties. The property ordered to
be delivered will be seized by the sheriff and then there is delivery of possession with the judgment creditor. If
the judgment directs the judgment debtor to sign a deed of conveyance or a deed of sale in favor of judgment
creditor and the judgment debtor refuses to sign the document, the court can appoint another person usually the
clerk of the court to sign the document on behalf of the judgment debtor.
If the judgment directs the debtor, the defendant to vacate a piece of land or building and he refuses to vacate
building the court through the sheriff will forcibly oust him from the building, the court will throw out the
things belonging to the occupant from that building. Can the court cite the judgment debtor in contempt for
refusing to obey an order of the court which directs him to pay let us say 2 million pesos? In a deed of execution
to be issued by the court in this case in a money award, the writ will be directed to the sheriff but the writ will
contain word for word the dispositive portion of the decision. So if the sheriff of the court goes to the debtor, the
debtor can refuse to pay and the debtor can even go to court and tell the court that I have money but I don’t
want to pay, I will get sick of pneumonia if I pay judgment creditor. Can the court cite him in contempt? No, the
court cannot cite him in contempt. This was a question in the bar examination four years ago. Citation for
contempt is not a remedy in Rule 39 generally to enforce a judgment because Rule 39 contemplates enforcement
of a judgment by the sheriff of the court making use of the processes in Rule 39 which is levy on execution of
properties so if a judgment debtor refuses to pay the creditor cannot go to court and ask the court to cite the
debtor in contempt of court that is not contempt of court because the according to the court the writ is not
addressed to the judgment debtor, the writ is addressed to the sheriff of the court so it is the duty of the sheriff
to carry out the dispositive portion of the judgment. May there be citation for contempt if there is an award of
money by way of exception? There is seems to be, that is in support cases. If the respondent is ordered to pay
support, he does not pay support, it is not only contempt that he will be facing but he will be facing a criminal
case for failure to give support. But generally, we don’t use the power of a court to cite a person in contempt
simply because the judgment debtor has refused to obey a writ of execution issued by the court. There are other
and more effective remedies under Rule 39 in order to carry out a forcible satisfaction of the judgment and the
more effective remedy under Rule 39 is to levy on properties of the judgment debtor, seized the properties of the
debtor and sell them at public auction. In the levy of the properties under Rule 39, the levy does not
automatically mean that possession of the levied properties will be in the hands of the sheriff or in the physical
possession of the court. If the properties of the debtor levied upon are real properties, the debtor will continue to
be in possession of the real properties, he will not be ousted from the properties. What the court will do is
simply to submit to the registry of property a copy of the levy on execution and ask the registry of property to
annotate the fact that this piece of land is already been a subject of levy on execution and this levy in execution
will serve now as lien over the real property of the judgment debtor. But when the property levied upon is a
personal property that is when the physical possession of the personal property will be turned over to the
sheriff. The personal property will be literally in custodia legis. It is now under the control of the court. What
happens after the levy has been implemented by the court? A levy on properties under Rule 39 should always be
followed by a sale at public auction of the properties. We cannot have an execution process where we will stop
at levying of the properties. The levy must always be accompanied by a sale at public auction. If there is only a
levy without a sale at public auction then that levy can be considered as nullified later on by the court. It is the
duty of the court to see to it that actual levy on the properties must be followed by public auction sale of the
properties. Under Rule 39 and some special laws, there certain properties of the judgment debtor which cannot
be the subject of a levy. If a property of the debtor is exempt from execution and it is levied upon the levy is void
and since the levy is void the sale is also void. The validity of a sale at public auction of levied properties will
always stem from the validity of a prior levy. If the levy is void the sale is also void. If the levy is valid, however,
it does not follow that the sale is also valid because under the rules there are some certain requirements that
must be complied with before a sale of a levied property could take place. For instance, if the property levied
upon is real property it cannot be simply be sold later on by the sheriff, there certain formalities to be followed,
there could be a requirement on publication of the sale of the properties. So even if there is a valid actual levy on
real property if later on the property is sold but there is no compliance with the requirement of publication the
sale will be void, the buyer of the property will not acquire any title to that property. So if the levy is void, the
sale is also void. If the levy is valid, the sale could still be void if the requirements for its valid sale under Rule 39
are not complied with.
We continue with rule 39, we talked about terceria-third party claim. The rule on terceria in rule 39 is also
contained in rule 57 in relation to writ of preliminary attachment. The principles in rule 39 and 57 governing
third party claim are practically identical. Terceria is predicated on the premise that the property levied upon by
the sheriff for purpose of executing the duly entered judgment does not belong to the judgment debtor. In rule
39 for the validity of a levy, the property levied upon must belong to the judgment debtor. If the property levied
upon belongs to another person, the levy is not valid. If the sheriff sells the property, nonetheless, the sale is not
valid. Rule 39 expects that the properties levied upon and eventually sold all belong to the judgment debtor
because rule 39 is the satisfaction of judgment against the judgment debtor. If the sheriff makes a levy on
properties which does not belong to the judgment debtor, you can expect the true owner to complain- he can
even take an action by commencing a complaint for the recovery of the property from the sheriff. The remedy
mentioned in rule 39 available to the owner is just one of the several remedies which the owner can avail of. In
rule 39, the remedy of the real owner is to file a third party complaint. The other remedies which are expressly
acknowledged by Rule 39 is the commencement of a separate and independent action for the recovery of the
property that has been levied upon. If the property levied upon is personal property, capable of manual
delivery, the true owner can file a complaint for replevin against the sheriff who has seized the personal
property. If the property levied upon is real property, he can file a complaint to prevent the sheriff from selling
the property and to compel the return of the property to the true owner. And rule 39 does not tell the true owner
that he only has these remedies in the alternative.The owner can make use of these remedies successively. If he
files a third party claim and he does not succeed in recovering the property by reason of the 3rd party claim, he
can avail of the remedy to file a complaint for the recovery of the real or personal property, as the case maybe.
But the easiest and most practical remedy available right away to the third party claimant is this third party
claim. A third party claim does not require the filing of a pleading, it is just an affidavit filed by the third party
claimant to the sheriff or to the court…
In the affidavit, one should also append supporting documents and papers that will justify his claim to the
property. What will the court do with this 3rd party claim? Can the execution court study and evaluate this third
party claim and eventually render a decision determining if the 3rd party claim is a proper or just claim? Can the
court render a judgment that will tell the sheriff that the true owner of the property is not the 3rd party claimant
but the judgment debtor? The court has no such authority because we are already at the stage of execution of
judgment. In so far as the court is concerned, the case is already completed, it has been terminated. The third
party claim will just be an incident to the execution process that is being followed by the court.Therefore, the
court has no authority to resolve an issue of ownership involving the property that has been levied upon. The
issue of ownership should be threshed out in a different and separate proceeding. So if the execution court
issues an order saying that the owner of the property is not the third party claimant but the judgment debtor
and the third party claimant does not assail the decision, that order will not be entered because such decision is
not rendered on the merits, it is not a final order. It will not constitute res judicata in so far as the third party
claimant is concerned. Regardless of the finding of the execution court that the true owner of the property is the
judgment debtor, that will not be binding on the third party claimant. If at all, the consequence of that finding of
the court is that the sheriff can proceed with the public auction sale of the property. If the sheriff schedules the
property subject to a third party claim to a public auction sale, the remedy of the third party claimant is to file an
independent action in order to prevent the sheriff from selling the property (complaint for injunction and
damages, for instance). That is one of the remedies available to the third party claimant. You do not file that
complaint in the execution court. If it is a complaint for injunction, you should file it in the Regional Trial Court
which has jurisdiction over the case and the venue will depend on the residence of the third party claimant or
the sheriff or the judgment debtor. And it is the third party claimant who will have the right to choose the venue
of the action.
If the property levied upon, on the other hand, is a personal property, say a car in the possession of the
judgment debtor but is really owned by the third party claimant, can the third party claimant file a complaint for
replevin to recover the car from the sheriff? Of course, in that complaint for replevin, the defendants would be
the sheriff and also the judgment creditor because the levy was a result of a motion for execution that was filed
by the judgment creditor. If the execution court is RTC and the third party claimant decides to file a complaint
for replevin, can he file the complaint before an inferior court? Yes, because a complaint for replevin is
cognizable by the inferior courts depending upon the value of the personal property. So if the execution court is
the RTC, but the car is valued at only 250,000 pesos and the true owner, the third party claimant files a
complaint for replevin, the complaint will have to be filed with the inferior courts. That inferior court, in the
complaint for replevin can issue a writ of replevin or a warrant of seizure before the sheriff and the judgment
creditor could file an answer. We would have a complicated situation where the sheriff has seized a property by
virtue of a levy on execution in fact the sheriff has scheduled a public auction sale for the car but at the same
time there is a warrant of seizure or a writ of replevin issued by an inferior court which directs he sheriff of that
inferior court to seize the car from the sheriff and the judgment creditor. Can the judgment creditor and the
sheriff argue before the inferior court that the inferior court does not have the authority to issue the writ of
replevin or warrant of seizure because that is interfering with the processes issued by the Regional Trial Court?
The answer is no. The sheriff of the inferior court can enforce the replevin. He can seize the car from the sheriff.
Although the sheriff is in possession of the car, by virtue of a levy on execution, can not the sheriff or the
judgment creditor capitalize on the provisions of rule 60 that a writ of replevin cannot be enforced when the
property is already subject to attachment or the property is under distraint by reason of non-payment of taxes. If
you go to rule 60 on replevin, that is really a requisite, an essential requisite in the issuance of a writ of replevin.
The replevin court can issue a writ of replevin validly if the property to be seized by the writ of replevin is not
under custodia legis, either levy on attachment or levy on execution. If that car is subject to levy on execution,
then that car is under custodia legis. But notwithstanding that provision in Rule 60, the court said that the writ
of replevin issued by the inferior court will prevail over the levy on execution made by the sheriff because such
levy on execution is a void execution. The requirement in 60 which states that property under custodia legis
cannot be the subject of a writ of replevin assumes that the levy on execution is a valid levy on execution. We
said a while ago, that for levy on execution to be valid, the property levied upon must be a property of the
judgment debtor. If the judgment debtor is not the owner of the property levied upon, that levy is void and
therefore there could be a seizure or confiscation by another sheriff in compliance with the writ of replevin
issued by another court or even an inferior court. In our example, it is also proper for the inferior court to issue a
writ of preliminary mandatory injunction against the sheriff so that the sheriff will be prevented from going
ahead with the sale. So this could be a situation, an instance, where a process issued by an inferior court can be
enforced in order to defeat a process issued by a higher court. The levy court is a RTC but the injunction court is
an inferior court. But the injunction will not be directed against the RTC, it will be directed against the sheriff of
the RTC to prevent him from selling the property which is the subject of a void levy on execution.
In Rule 39, if a property of the judgment debtor has been subjected to a levy on execution, can it be made the
subject of another or further levy on execution? Yes. There could be several levy on execution over the same
property of the judgment debtor. So if the judgment debtor owns a piece of land, there could be a first levy, a
second levy or a third levy on that piece of land. The rule does not prohibit the enforcement of several levies on
execution over the same piece of land owned by judgment debtor because a vendee does not immediately obtain
ownership of the property. Notwithstanding a levy on a land owned by the judgment debtor, the debtor
remains to be the owner of the land. Under rule 39, a levy only creates a lien over the property similar to a
mortgage lien. Under civil law, we learned that the same property can be the subject of a first mortgage, second
and so forth. We apply that same principle to levy on execution. If we have three levies on execution, they are all
annotated at the back of the title, then we just follow the rule on seniority that we follow in mortgages and other
encumbrances. The first levy will be superior to the second and third levy. The second and third are inferior to
the first levy on execution. In fact the SC has also held that if a property of a debtor, a piece of land owned by the
debtor, is the subject of different levies and the judgment debtor sells the property, the buyer will have to
respect the annotation of levies at the back of the title. If the property is later on sold at public auction as a result
of levy on execution, then the buyer of the property could lose his title to the property. He cannot say that he
bought it in good faith because the fact of the levy is annotated at the back of the title of the judgment debtor. If
this property of the judgment debtor is already mortgaged for instance with the PNB, if the mortgage in favour
of PNB is still uncancelled or existing, can the sheriff levy on a mortgaged property of judgment debtor? Yes,
because levy under Rule 39 does not affect ownership of the property. Levy only creates a lien. When the
property of the judgment debtor is levied upon, he does not lose ownership of the property. He could lose
ownership of the property if there is a public auction sale of the property and even if there is a public auction
sale of the property later on, the public auction sale does not necessarily mean that he will automatically lose
ownership of that levied and sold property especially if that property is a piece of land. Under rule 39, the
judgment debtor can still exercise right of redemption so that he will still keep his title to the property.
In cases where there are two different levies over the same piece of land owned by the jd, usually the property
will be sold as a result of the first levy of property. If the property is later on sold at public auction, and the law
gives the jd a right of redemption, this right of redemption will also be enjoyed by the second levy owner. Rule
39, in its definition of a redemptioner, names the jd and his successors-in-interest and any creditor who holds
another levy or lien subsequent to that of the levying creditor who has caused the sale of the property. So in our
example, if this piece of land belonging to the jdis sold as a result of the first levy, the judgment debtor can
redeem and the second levy holder can also redeem. The right of the jd to redeem is distinct from the right of the
second levy holder to redeem the property. If it is the second levy holder who redeems the property, the jd can
make a further redemption of the property. There could be another redemption by the jd. But if it is the jd who
redeems the property, then the second levy holder can no longer exercise the right of redemption. In the rule of
successive redemption in Rule 39, when it is the jd who redeems the property from the highet bidder, further
rights of redemption are cut off by virtue of the redemption made by the jd. We can speak of successive
redemption if the redemptioner is not the jd himself. If ht one who redeems is a redemptioner or another levy or
lien holder, we can apply the rule on successive redemption which says that another redemption could take
place within 60 days from the efficacy of the first redemption even if the period of redemption has already
expired. For instance, if there are two redemptioners and if we include the jd, meaning to say there are three
persons who can redeem the property. If the redemption is carried out by the jd, the other redemptioners will
lose their right to redeem. The period of redemption for all of them is 1 year from the registration of the
certificate of sale. We are going to assume a redemption made should be within 1 year from the registration of
the certificate of sale. If the second levy holder redeems then the third levy holder can also further redeem from
him within 60 days from the date of the last redemption. But in any event, within that 1-year period, the jd can
always exercise his right of redemption. And if it is the jd who indeed exercises redemption, the right of
redemption given to others will be cut-off. Will it not prejudice these other levy holders if we cut off the right of
redemption? It could not prejudice the other levy holders. Since they are other levy holders if the jd redeems the
property, they can still enforce their levy, they can have another public auction sale of that levied property. In
civil law as well as in rule 39, the SC has accepted the principle that whenever there is a doubt in the
interpretation of redemption rules and laws, the interpretation should always be in favor of the jd or the
redemptioner. But rule 39 is also very clear in saying that right of redemption will exist only when the property
sold at public auction is a real property. When the property levied upon and sold at public auction is personal
property, there is no ror. Because of these distinctions given in the rules, the SC has also come out with
principles that are applicable to redemption of real property and principles applicable because there is no
redemption as to real property.
One of these principles is that when the properties levied upon and sold at public auction is personal property
and the price is inequitably low at public auction sale, the sale is void. There has to be another sale of the
property. The personal property is a car owned by the jd, the market value of the car is 800,000. At the public
auction sale, the highest bid is only 50,000. Here, the highest bidder can acquire a car worth 800,000 for only
50,000. If we apply the principles given by the SC, the same is void. The highest bidder does not acquire
ownership over the property, the court can issue an order declaring the same as ineffectual and that the same is
void because the price is inequitably low. So the sheriff must schedule another public auction sale until the price
that will not fall within the classification of an inequitably low price. But when the property sold at public
auction is real property, it does not matter whether the highest bid is high or low or even if the price generated
is inequitably low. In fact the SC said we cannot use this concept of inequitably low price when the property
sold is a real property because of the principle of redemption- the right of redemption given to the jd. And the
court explained that even if the piece of land owned by the jd is worth 700,000 and highest bid is only 50,000, the
sale is valid. The highest bidder can acquire ownership over the property if redemption is not exercised by the
jd. The SC said if the price is very low and the property is real, that is advantageous to the judgment debtor
because if he decides to redeem the property, he will only have to produce 50,000 and then he will get his
property that has been sold at public auction. In instances where the judgment debtor has say redeems the
property, the redemption will enable the jd to continue possessing the property and not lose ownership over the
property. But the public auction sale of this piece of land could also result in a situation where the price
generated during the auction sale will not sufficient to pay the claim of jc. For instance, the claim of jc is
1,000,000. A piece of land owned by jd is levied upon and sold at public auction and the price generated is
500,000 which is not enough to pay in full the jc. The 500,000 will of course go to the jc who has caused the sale
of the property but the jc has not yet been fully paid, there is still a residue or unpaid balance of another 500,000.
When the jd redeems the property, should he deliver to the sheriff 500,000 or 1,000,000? The jd should deliver
only 500,000. He need not deliver 1,000,000 because the redemption price is always the highest bid of the
property plus interest and other additional cost. So if in our example, the jd is able to redeem the property by
producing 500,000 but the jc has not yet been fully paid, the jc will be tempted to have another levy on the same
property that has been redeemed by jd. The jc could do so because he has not yet been fully paid and in rule 39,
there must be full satisfaction of the award to put an end to the case. If the jc decides to have another levy on the
same property that has been previously levied upon as a result of his execution process but this property has
been redeemed by the jd, can the same levy creditor impose or carry out another levy in the same property? The
SC said, in this situation, the same levying creditor no longer levy on the same property. If the same levying
creditor wants to get full satisfaction, he should make another levy on another property of the jd or he can resort
to other remedies provided for in rule 39 if he cannot get full satisfaction of the judgment. But the SC also
explained that this principle does not prohibit other creditors from making a levy on the property that was
already redeemed by the jd. If the jd is able to redeem his property, that same property can be the subject of a
levy to be made by his other creditors. But a subsequent levy cannot be made by the same levying creditor or the
first levying creditor who has caused the public auction sale of the property. With respect to the issue as to who
is entitled to the fruits earned by the property during the pendency of the levy and during the running of the
period of redemption, rule 39 has settled that issue. The fruits of the property sold at public auction will still
redound to the jd while the period of redemption. The basis is that the jd retains ownership of the property
while period of redemption is running. If the jd is unable to redeem the property within the period of
redemption, then the title will be consolidated in favour of the highest bidder of the property. During the
auction sale of this levied property, anybody can bid even the jc can bid. In fact, it is usually the jc who will offer
the highest bid because the jc can give an amount equivalent to the award given to him by the court. If the
award in favour of jc is 1,000,000, the jc can give a bid as high as 1,000,000 and he does not to turn over the task
to the sheriff because he will just tell the sheriff I will consider the 1,000,000 bid as full payment of my claim. If a
stranger is the highest bidder and he bids for 1,000,000, this stranger is expected to shell out 1,000,000 and
deliver it to the sheriff. Can the jc be forced to shell out cash equivalent to this highest bid even if the highest bid
is the exact equivalent of his claim? Generally, no. but if there is terceria or third party claim and the highest
bidder is the jc, the jc must still shell out cash in order to be declared by the court and the sheriff as the highest
bidder of the property. If the jc is not fully paid, there are other options given in the rules- availment of which
could lead eventually to full satisfaction of the claim.
First is for the jc to file a motion with the court for the examination of the jd. Another remedy is for the judgment
creditor to file a motion with the execution court for the examination of a debtor of the jd. And the third remedy
is for the jc to file a motion for the appointment of a receiver of the remaining properties of the jd. We will note
that a receiver is one the provisional remedies in the rules of court. And also receivership here is allowed by the
court although the case is already terminated, already at the stage of execution of judgment.so this is one
instance, where a provisional remedy can still be used even if the case has been decided by the court. Usually
our concept of a provisional remedy is that it is a remedy that can be availed of during the pendency of a case
before entry of judgment. But receivership contemplated in rule 39, although it is the same receivership in
provisional remedy, can still be availed of even if there is no more pending case, meaning the case has already
been terminated in fact the judgment has already been entered.
The last topic in Rule 39 is of course one of the most important in procedure - the principle of RES JUDICATA.
Res judicata n rule 39 is covered by sections 47 and 48. Section 47 is the effect of a local judgment after it is
entered and then 48, is about the effect of a foreign judgment that is a judgment rendered by a foreign court. In
our study of res judicata, we studied that there are principle requisites of rj: a) identity of parties, b) identity of
causes of action and c) identity of subject matter. But the effect of rj under section 47 depends upon the nature of
the action whether the action is in rem or in personam. What is the effect of a judgment in rem? This is answered
by letter a of Section 47. The effect of a judgment in personam is letter of Section 47. Letter of c of section 47
speaks about the principle of conclusiveness of judgment. If you want to have a clearer view of the difference
between the effect of a judgment in rem compared to the effect of a judgment in personam contained in letters a
and b, all you have to do is look for conclusive in letter a and letter b. Letters a and b use this word conclusive in
both instances and then you analyse the clauses that follow the word conclusive in letter a and the clauses that
follow the word conclusive in letter b and you will immediately appreciate between a judgment in rem and a
judgment in personam. In letter a, the law says the judgment is conclusive upon the title to the thing, upon the
will or administration, upon the personal, political or legal condition of the person. Whereas in letter b, the word
conclusive is followed by the phrase upon the parties and their successors-in-interest litigation for the same
thing under the same title and in the same capacity. So that right away, when the judgment is a judgment in
rem, the judgment is conclusive not upon the parties, it is conclusive upon the title to a thing, upon the personal
political or legal condition of a person. This is the reason why a land registration or a cadastral proceeding is
considered as an action in rem because the judgment in these proceedings is conclusive upon the title, it is not
considered conclusive upon the plaintiff or defendant. If the judgment is conclusive upon the title to the thing,
that judgment will be binding upon the litigants or anybody who might have an interest to the title of the thing
although these persons might not have been involved in the litigation process. In the probate of a will which is
another proceeding in rem, where there is a decision by the court admitting the will to probate, it is conclusive
upon the will or administration therefore anybody who might have an interest in the will will have to respect
that decision by the court. The personal condition of a person, if a person has in his favour a decree of adoption,
he is the adoptee of Juan Dela Cruz, the decree is conclusive upon the personal status of that adoptee and
therefore, anybody who transacts with the adoptee will be bound by the decree of adoption issued by the
adoption court. But you will notice, there is a caveat in letter a when it comes to probate of a will. The probate of
a will is not conclusive upon the fact that the testator is dead. It is only prima facie. If at all, it can serve only not
as a conclusive proof of the death of the testator but it could convince the court that the testator really is dead.
The reason for the caveat is because in civil law, as well as in rules of court, a probate of will can be commenced
even if the testator is still alive. Ordinarily, we conceive a proceeding for the probate of a will as one wherein the
testator is already dead, that is not so, under the civil code and the rules of court. There could be a proceeding
for the probate of a will even if the testator is still alive provided that it is the testator himself who will
commence the petition for the probate of his own will. That is the reason for the caveat in letter a of sec. 47. The
probate of a will in so far as the common requirements of a will are concerned but in so far as the issue as to
whether the testator is dead or alive, it is not conclusive.
In letter b, when the rule says that the judgment is conclusive upon their parties and their successors-in-interest
as to matters directly ajudged or as to matters which could have been ajudged, that phrase as to matters that
could have been decided or litigated in relation thereto, will refer for instance to a compulsory counterclaim or a
cross-claim. Because we learned that a compulsory counterclaim or a cross-claim that is not set up in the same
action will be barred. The reason for them being barred is that because they are matters which could have been
raised in relation to the principal action. In a judgment in personam, the judgment is conclusive between the
parties only as to the matters directly ajudged or any matter that could have been ajudged. An example of an
action in personam could be an action involving title to property by reconveyance of property. Plaintiff vs.
defendant, the action for reconveyance of property, this is not in rem but in personam. Not all actions involving
real property is in rem. There are only very few actions involving real property that are considered by the law as
in rem like cadastral or land registration proceedings but if the action is only for reconveyance or accion
reinvindicatoria, although what is involved is real property, that action is still in personam. The judgment is in
favour of the plaintiff. The judgment is entered. In so far as that case is concerned, the plaintiff is the owner of
the property. Later on, can X as stranger file his own complaint against the plaintiff in the first case for the
recovery of real property? Can the plaintiff in the first case set up the defense of res judicata? He cannot. Because
the parties in the second case are not the same in the first case. There is no identity in the parties between the
first and second case. There is even no identity of causes of action but the subject matter is the same piece of
land. If there is already an identity of subject matter, does it not follow that there will be identity of causes of
action? This is not a correct assumption. There could identity of subject matter but the causes of action could be
still different. For instance, in accion reinvindicatoria, the subject matter is of course a piece of land, it involves
title to a piece of land. There could be another complaint filed involving the same piece of land but because of an
action different but referring to the same land. For instance, unlawful detainer involving the same piece of land.
But although there is identity of subject matter, the causes of action will be different- the first, accion
reinvindicatoria, the cause is for recovery of title to property, in unlawful detainer, the cause is physical
possession of property. So if the second case is unlawful detainer, the second case cannot be dismissed by reason
of res judicata. There is no identity of causes of action.
When the judgment is entered as contemplated in sec. 47, there is a judgment on the merits that is rendered by a
court of competent jurisdiction is as provided-judgment in rem and judgment in personam. The collateral
principle we adopt on this rule on res judicata is that the judgment that has been entered becomes immutable-it
can no longer be change or modified even by the SC itself. So even if the judgment entered is a judgment of an
inferior court and that judgment has been entered, everybody will have to respect res judicata applicable to this
judgment. That entered judgment cannot be modified or changedby the inferior court, by the Regional Trial
Court or even by the Supreme Court. That is the general rule when it comes to res judicata-the final and
executory judgment enjoys now immunity from challenge or from being assailed by parties to the original case.
But it does not mean to say that the judgment that has become final and executory can no longer be challenged,
it can still be challenged by way of exception to the general rule.
We have learned the propriety of filing a petition to annul a judgment under rule 47. Annulment of judgment is
a challenge, an attempt to change or modify a final and executory judgment. One of the requisites of res judicata
is missing, the element that is missing could be that the court which decided the case is not a competent court
because in rule 47, one of the grounds to annul a judgment is because the court has no jurisdiction over the
subject matter or over the person of the parties.
Another remedy that could modify a final and executory judgment and which does not follow res judicata is
Rule 38 or petition for relief from judgment on the ground of fraud, accident, mistake or excusable negligence. I
suggest that you read the case in March 2011, F.G.U. Insurance. In that case the SC summarized four instances
where a final and executory judgment can be modified, challenged or even set aside. The first instance is when
there is modification of clerical errors of a final and executory judgment. The second instance is when the
judgment is what we call a nunc pro tunc judgment. The third is when the judgment is void. And the fourth is
when circumstances intervened after the final entry of judgment which makes the execution of judgment unjust
and inequitable. That is usually the reason applied by the courts when it entertains a petition for setting aside a
final and executory judgment. But in 2007, the SC also came out with another decision which says that the SC
has the inherent power to change or modify a final and executory judgment if substantial justice so requires. So
you can consider that as the fifth exception. The SC is simply telling that us that we are the author of the Rules of
Court so we can disregard it at anytime we want to. It seems easy to appreciate because the Rules of Court is a
product of the Supreme Court. So the Supreme Court will be allowed to disregard the application of res judicata
in any event where it sees that disregard of res judicata will yield to substantial justice. So there are five known
exceptions now where a final and executory judgment can be modified, assailed or set aside notwithstanding
application of res judicata.
Letter c of sec. 47 is about conclusiveness of judgment. It is a type of res judicata but with limited application.
There could be identity of parties and identity of subject matter but there is no identity of causes of action. That’s
why the subsequent cases can prosper. They will not dismissed by reason of res judicata. The usual example that
is given in textbooks about the application of conclusiveness of judgment involves a monetary obligation that by
stipulation of parties will be subject to periodic payments-obligation to pay money on instalments. If there is a
1,000,000 indebtedness payable in two instalments of 500,000 each, we learned that each instalment, if violated
or if defaulted, will give rise to one cause of action. So if there are two instalments, it is possible that two causes
of actions will accrue from the same promissory note because each instalment will give rise to a cause of action.
We now apply this to sec. 47. If the debtor defaults in the payment of the first instalment, the creditor can file a
complaint to recover 500,000-only the first instalment that is due and unpaid. That is one cause of action. Let us
say that the court, the RTC, will try the case and then it will hear evidence to be submitted by the creditor and
debtor. A defense set up by the debtor in his answer is that the promissory note upon which the complaint is
based is a forged promissory note, it does not contain the genuine signature of the debtor. After the trial, the
court decides in favour of the creditor. So the court, in effect, says that the document is not a spurious document,
it is not a forged promissory note. The signature is a genuine signature. Then the judgment is entered. After the
entry of judgment, the second instalment also becomes due. Can the creditor file a second complaint for the
recovery of the second instalment? The answer is yes, because our principle is that each instalment if unpaid will
give rise to a separate cause of action so if the second instalment becomes due and unpaid, the creditor can file a
separate complaint against the debtor. The second complaint can prosper. The debtor will again raise the issue
that the promissory note contains his false signature-it is a spurious promissory note. Will the court still make
adjudication as to whether that note is a forged promissory note or a genuine promissory note? Not anymore,
the finding in the first case by the court that the promissory note is genuine will be conclusive in so far as the
creditor and debtor is concerned in another case. That’s why in conclusiveness of judgment, the subsequent case
will not be dismissed, it will prosper but what the court cannot do is to make an adjudication on the issue that
has already been decided in the first case. That is a conclusiveness of judgment in so far as the genuineness of
the promissory note is concerned. That is the rule of conclusiveness in the last paragraph of sec. 47.
In sec. 48 which, as we said, refers to a foreign judgment, this section also refers to a foreign judgment in rem
and foreign judgment in personam if you read the first two paragraphs of sec. 48. In sec. 48, it is provided that
the judgment of foreign court is conclusive upon the title to the thing and a judgment against a person is a
presumptive evidence of the rights between parties. So the first part speaks also about a judgment in rem that is
adjudicated by a foreign court, the judgment in rem is conclusive also upon the title to the thing. But when the
judgment is in personam , the judgment of the foreign court is only a presumptive evidence of the rights
between the parties in the complaint. An illustration of that judgment in personam rendered by a foreign court,
there is a creditor and debtor suit in a foreign country, say, before a Japanese court. The relief which the creditor
seeks before the Japanese court is for the recovery of an unpaid loan. The Japanese court in favour the creditor.
So the debtor is required to pay the said sum of 100,000 US dollars. The Japanese court has not executed the
judgment but somehow the creditor and debtor live in the Philippines, they are now in the Philippines. The jd
has accumulated certain properties in the Philippines. Can the jc in that Japan case file a motion for execution
before a Philippine court? The answer is no. you cannot file a motion before a Philippine court. The Philippine
court knows nothing about the Japan case. There is no basis for the Philippine court to issue a writ of execution.
Is there a remedy available to the creditor in order to enforce the decision of the Japan court in the Philippines?
The remedy is the second paragraph of Rule 48 which says that the judgment of the Japan court is a presumptive
evidence of the rights between the parties. How does the jc make use of the rule that the decision of the Japan
court is a presumptive evidence of the rights between the parties to the case? The creditor should file an
independent or separate complaint for the enforcement of the decision of the Japan court and the only evidence
that he needs in order to convince the court that there is preponderance of evidence in his favor is a certified true
copy of the decision rendered by the Japan court. If he is able to present a certified true copy of the decision of
the Japan court, the local court will now apply the presumption given in sec. 48 that the decision of the Japan
court is a presumptive evidence of the rights between the parties. That is enough to convince the courts that the
creditor is really entitled to recover some amount from the defendant. But you will also notice that in sec. 48,
there is a last paragraph which speaks about repelling a judgment by a foreign court whether it is a judgment in
rem or a judgment in personam, the judgment of a foreign court can be repelled by evidence of want of
jurisdiction, want of notice, collusion, fraud or clear mistake of law or fact. In other words, if we have before a
Philippine court, a separate action for the enforcement of a decision rendered by a foreign court, the defendant
in this petition for the enforcement of foreign judgment can set up the defences given in the last paragraph of
sec. 48. The decision of the Japan court can be defeated or repelled by evidence of want of jurisdiction, want of
notice, collusion, fraud or clear mistake of law or fact. The defendant can set up properly the affirmative defense
that the Japan court did not have jurisdiction over the case or jurisdiction over his person because of want of
notice or that the decision the Japan court is void because of collusion or fraud or that the decision of Japan court
cannot be enforced because there is clear mistake of law or fact by the Japan court. Can we make use of these
grounds mentioned in Sec. 48 to repel a local judgment? Can we repel the execution of a local judgment, say
there is a motion for execution filed before a trial court because the judgment has become final and executory,
the jc has now filed a motion for execution, can the jd oppose the execution by claiming that the judgment
entered by the court cannot be executed because the judgment is void by reason of absence of jurisdiction? It
cannot be done if the judgment is rendered by local courts. The motion for execution cannot be defeated by
setting up defense that the judgment is void because of want of jurisdiction over the person of the defendant, it
cannot also be done. Why cannot the defendant in this local judgment oppose the execution by setting up the
defences that the judgment sought to be enforced under rule 39 and that judgment is rendered by a local court?
Why can we not the same defences that are available when the case involves a foreign judgment? We do not
allow a motion for execution to be opposes or to be denied on the argument that the court did not have
jurisdiction over the subject matter or jurisdiction over the person of the defendant, because that will be a
collateral attack on the judgment. That is not a direct attack on the judgment. We can directly attack the
judgment by filing a petition to annul the said judgment and the ground to be used is lack of jurisdiction over
the person or over the subject matter. But if we attack the judgment collaterally, not directly, we do not allow
that in our system. We can only directly attack the judgment on these grounds- lack of jurisdiction over the
subject matter, over the person and extrinsic fraud. We cannot use these to collaterally attack judgment. When
we say collaterally, the person attacking the judgment does not file a separate complaint for the purpose of
having the judgment set aside. If he only opposes the motion for execution and the ground of his opposition is
that the court did not have jurisdiction over the case, that is not a direct attack, it is collaterally attacking the
judgment because he is only setting up that defense in order to avoid execution of judgment. In a foreign
judgment sought to be enforced in the Philippines, sec. 48 appears to allow a collateral attack on that foreign
judgment which is not allowed in so far as a domestic judgment is concerned. With respect to the other grounds,
collusion and fraud, they are also grounds to directly attack judgment under Rule 47 even under Rule 38-petitio
for relief from judgment. But what cannot be done our system is a collateral of final and executory judgment.
But there is one occasion, according to the Supreme Court, where we could collaterally attack a judgment. If the
judgment is on its face a void judgment, for instance, a judgment rendered by a court contains only a dispositive
portion, it does not contain findings of fact or conclusions of law, that judgment is, on its face, a void judgment.
It does not with the constitutional requirements of a valid judgment. That can be attached collaterally. So if there
is a motion for execution for that judgment, an opposition can be set up attacking the validity of the judgment
because it does not with the constitutional requirements of a valid judgment. so in the matter of attacking a local
judgment, as long as the judgment, on its face, appears to be a valid judgment, in writing, there are findings of
fact and conclusions of law, there is the signature of judge, there is presumption of correctness of judgment. The
only way to have it set aside is to file an action directly for the purpose of declaring that judgment null and void
- annulment of judgment. You cannot do it by simply opposing a motion for execution. You cannot even do it in
order to oppose the petition for a revival a judgment. A petition to revive a judgment is an independent action
available to a jc who has failed a judgment within the first 5 years from the entry of judgment. If the jc files a
petition to revive the judgment, the defendant will not be allowed to set up the defense that the judgment
sought to be revived is not valid because of lack of jurisdiction, that is another example of a collateral attack on
the judgment.If the argument that the judgment is void is only used as a defense in a separate proceeding other
than annulment of judgment, that is always a collateral attack of judgment and that is not allowed in our system.
The term Provisional Remedies is considered synonymous to two other terms as per the circulars of the
Supreme Court. And these two other terms are interim reliefs and provisional order. So the terms provisional
remedy, interim relief and provisional order refer to one and the same provisional concept-a provisional
remedy. So that we can rightfully conclude that the enumeration of provisional remedies in the Rules of Court
beginning with Rule 57 up to support pendent lite in Rule 61 is not an exclusive enumeration of provisional
remedies. We have to include the enumeration of interim reliefs in other circulars of the Supreme Court or the
enumeration of provisional orders in a separate circular of the Supreme Court. The enumeration of interim relief
could be found in the circular in amparo. There are four interim reliefs in amparo- protection order, production
order, inspection order, witness protection order. There are four interim reliefs in the circular on amparo. And
the circular on amparo itself says that amparo could be a provisional remedy under certain instances. Habeas
data could also be a provisional remedy under certain instances. So we can add in the enumeration the interim
relief in the circular on amparo, the four interim reliefs plus amparo itself and habeas data. There is another
circular issued by the Supreme Court which enumerates several provisional orders and this circular refers to
provisional orders in marriage-related cases. There are seven provisional orders contained in this circular-
spousal support, child support, visitation rights, custody of a minor, protection order, hold-departure order and
appointment of administrator of the co-owned properties of the spouses. These are provisional orders in
marriage-related cases. They are also treated just like a provisional remedy in the Rules of Court. And then in
the latest circular issued by the Supreme Court, the Kalikasan, we also find some provisional remedies like
temporary environmental protection order, this is a provisional remedy under the writ of kalikasan. And in the
writ of kalikasan, if you have gone over the circular, there is a separate section on discovery measures and the
kalikasan circular appears to consider the discovery measures also as provisional remedies or interim relief like
inspection order, production order which are interim reliefs in the writ of amparo. They should also be
considered interim reliefs in kalikasan cases. So there could be 3 or 4 additional provisional remedies if we
include discovery measures that are specified in the writ of kalikasan. Whether they are treated as interim relief
or provisional remedy or provisional order, their common element is that there must be a pending principal
action. You cannot use of these interim relief or provisional remedy or provisional order unless there is a
pending principal action except in those instances when the provisional remedy or provisional order can be
treated as the principal action. For instance, replevin is a provisional remedy but it can also be a principal action.
As we said earlier, amparo is a principal action by itself but it can also be treated as a provisional remedy. Just
like habeas data, it is a principal action by itself but it can also be treated as a provisional remedy. Since we
always require an independent principal action before we can make use of these provisional remedies, it follows
that we cannot an independent action solely for the purpose of obtaining as a principal relief any of these
provisional remedies. For instance, a creditor cannot file a complaint for the issuance solely of preliminary
attachment, that will completely be dismissed. The application for preliminary attachment should be always
made to depend upon a principal action that is included in the enumeration of cases in sec. 1 of Rule 57. That’s
why in Rule 57, that’s preliminary attachment, we immediately find actions that should be filed in court where
we can properly ask for the issuance of preliminary attachment. You should also be careful in ascertaining
whether attachment is provisional or it is not a provisional remedy. Rule 57 is a provisional remedy because of
the word preliminary. Attachment is a provisional remedy if it is a preliminary attachment. But if the
attachment is a final attachment, it is no longer a provisional remedy. It is now part of the execution process
under Rule 39. We kept on mentioning levy on execution in order to describe the process in Rule 39 to execute a
judgment. Levy on execution is just another term for levy on final attachment. But we use the term levy on
execution to differentiate it from levy on attachment. When we talk about levy on attachment, we refer to a
preliminary attachment. But when we talk about levy on execution, we are referring to a final attachment- an
attachment that is promulgated under Rule 39.
The enumeration of provisional remedies in the rules of court is no longer exclusive. The various circulars of the
Supreme Court have introduced provisional remedies but in a different way. Instead provisional remedies in
marriage related cases, the term used by the Supreme Court is provisional order. In the circular on Amparo,
there are also provisional remedies but the term used is interim relief, and in the Kalikasan circular there are
also provisional remedies but the terms used are either provisional order or provisional remedy. But they are all
provisional in character because they cannot be the principal action itself.
These remedies are all incidents of the principal case just like the provisional remedies that we have in the rules
of court. When we say that provisional remedies cannot be the principal action itself, there is no such principal
action for issuance of preliminary attachment. There can be no principal action of issuance of preliminary
injunction. But in the case of replevin, as a matter of fact, this replevin has been treated by the court as a main
action, but the provisional remedy is an action for the issuance of writ of replevin or a warrant of seizure.
Support pendente lite is also conducted in the principal action, the principal action could be an action support
with an application for support pendente lite.
Although the term used in the other circulars are now different from provisional remedy, still the concept of
provisional remedy will apply in the provisional order or interim relief as the case may be. In the case of
marriage related cases, the following are the provisional orders. Spousal support, child support, visitational
rights, the custody of the minors, and the hold departure order, protection order or the appointment of
administrator of the common property only common or those belonging to the conjugal partnership of gains.
Under the writ of Amparo, and also the circular on Habeas Data, Amparo and Habeas Data although principally
they are considered as actions in special proceeding, they are treated at the same time as provisional remedies. If
you read the circulars on Habeas Data and Amparo, if there is already a criminal case instituted in the court,
involving the disappearance of a person or extra legal killing of a person, that criminal action will be the
principal case. In that principal action, a party could move or apply for the issuance of the Writ of Amparo or
Habeas Data as the case maybe.
So there are four interim reliefs in Amparo, protection order, inspection order, production order and witness
protection order. We include now the four interim reliefs, Amparo and Habeas Data. In the circular of
Kalikasan, the provisional orders or interim reliefs are temporary environmental protection order and
preliminary attachment. And the circular also speaks of an optional protection order, cease and desist order, and
production and inspection order. If you will notice in these two circulars of the Supreme Court appears to detail
certain modes of discovery like the production of documents, inspections of things. They are the subject in the
modes of discovery as enumerated in the rules. They are now treated as provisional remedies. In the Kalikasan
court can issue a production order or inspection order. The same is true with the Amparo circular there is a
production order, and inspection order, although they are substantially of the same nature in that we have taken
in modes of discovery.
Although we have now several provisional remedies and interim reliefs or provisional orders, it is not correct to
assume that they follow common rules. These different circulars have not adopted the rules that are existing in
the rules of court. That is 57 up to 61. If you analyze the provisional remedies, found in the rules of court, one of
the common elements is the requirement for the applicant to post a bond. So we have an attachment bond, an
injunction bond, a receivers bond, and replevin bond. The only provisional remedy which does not require the
posting of a bond is support pendente lite.
But in the circular on marriage related cases, the premise is that the family court can grant these provisional
orders with or without bond. It all depends on the discretion of the family court. And then, on the same circular,
the law also provides that the family court can grant these provisional orders with or without a hearing. Which
can also be present in the rules of court, there are some provisional remedies that can be granted ex parte, there
are also provisional remedies which need a summary hearing before they can be issued by the court.
In the Amparo circular, when it comes to the interim relief of production and inspection order, there must be a
motion filed by the applicant and there must be a hearing conducted by the court. In respect to protection order
and witness protection order, these provisional remedies can be issued by the court without a hearing, ex parte.
In the Amparo circular, there is nothing mentioned about the posting of a bond by the applicant, so it would
seem that just like the circular on marriage related cases the court do not need a bond before the court can
validly issue this interim relief.
In the writ of Kalikasan, the usual provisional remedy that is issued by the court is of temporary environment
protection order. The applicant is not required to post a bond in the matter of issuance of temporary
environmental protection order, and just like the preliminary injunction, there can be an ex parte issuance good
for 72 hours, but the Kalikasan court can extend that until the case is finally decided.
So if you compare that temporary environmental protection order to the temporary restraining order, In TRO
there is a definite time, and it is called a stag, it cannot be extended by the court, but in Kalikasan cases the
temporary environmental protection order can be extended by the court until the case is finally decided. There is
also no need for a bond.
What is original in this Kalikasan circular is the party who will be required to post a bond in the TEPO is not the
applicant, it is the adverse party, who will file a motion for the victim of the TEPO. In most instances of
provisional remedies where there is a need for the filing of a bond, like attachment, preliminary injunction, or
replevin or receiver, this can be defeated by the filing of a counter-bond. The same is true with the
environmental protection order, but the difference is that the applicant is not required to post a bond, but the
adverse party moves for the victim of that environmental protection order, he will need to require to post a bond
to protect the interest of the adverse party.
Another rule that applies provisional remedy that is in common, the issuance of these interim reliefs is always
interlocutory, the order is not the final order because it has nothing to do with the merits of the case. And since
the granting of the provisional remedy is interlocutory therefore it is not applicable. The accepted remedy to
challenge an order granting the provisional remedy is rule 65. But in some circulars that has also been changed
substantially. For instance, in summary procedure if in the cases that are cognizable by the inferior court, where
the inferior court is governed by the summary procedure if the inferior court grants a provisional remedy it is
interlocutory, it is not appealable but the adverse party cannot file a petitioner under rule 65. In other words
there is no remedy available to the adverse party. The reason is in summary procedure the application of
availment of rule 65 in order to challenge this interlocutory order issued by the inferior court is prohibited. That
is one of the prohibited pleadings in summary procedure, the availment of rule 65 to challenge the interlocutory
order issued by the inferior court.
In Amparo likewise, there is a section on prohibited pleadings, there is a similar provision in Amparo circular
that if the Amparo court grants a provisional order or an interim relief and therefore that order is interlocutory,
rule 65 is also not applicable. Because rule 65 is a prohibited pleading in order to challenge interlocutory order
issued by the Amparo court.
In the circular on Kalikasan the issuance of the TEPO is of course interlocutory can be challenged by the
granting of this TEPO. Yes, it is allowed, the problem is, the challenge in the TEPO is that can only be filed in the
Supreme Court. In other words, if we avail of rule 65 in Kalikasan case we cannot file the petitioner with the
RTC, CA, it is only in the SC that can entertain a petition assailing the issuance of TEPO. So, do not get the
impression that all of these remedies are provisional in character, they are governed by the same set of rules.
They are governed by different set of rules depending on the circular of the Supreme Court that is applicable in
each one of them.
In respect to the authority of the inferior court to grant the provisional remedy, this matter has now been issued
by BP 129. In the past, before BP 129, there was the question as to the totality or the authority of the inferior
court to grant provisional remedy. But this was settled by BP 129. If you read section 33 of BP 129, it is now
clearly provided that the inferior court has the authority to grant provisional remedy as long as it has
jurisdiction over the action. So there is no question at all that the inferior court can grant preliminary
attachment, preliminary injunction, replevin, receivership, as a provisional remedy. But the problem is now with
support because the support as a principal action is exclusively cognizable by the family court. There could be
instances where the inferior court can grant support pendente lite but we have to look for a principal action
cognizable by inferior court, and one of the incidentals or collateral relief is support pendente lite, as long as the
inferior court has jurisdiction over the principal case the inferior court has the authority to grant this provisional
remedies as long as the requirements given in the rules and in the circulars are complied with.
Going to rule 57, in section 1 there are 6 instances where the court can properly grant an application for
preliminary attachment. In respect to the first 5 instances, there is a common requisite, that there is an intention
on the part of the adverse party to defraud the applicant. It is only in the last instance where there is no such
requirement that must be shown that the adverse party has intention to defraud the applicant. The only
requirement is that the defendant is a non resident and not found in the Philippines and summons can be served
upon him by publication. So even if there is no allegation that the adverse party have intention to defraud, there
could still be a preliminary attachment issued by the court. The fact that the defendant is a non-resident and is
not found in the Philippines, is closely related to the provision in rule 14 when the party can properly apply for
publication of the summons in order for the court to acquire jurisdiction to try and decide when a property of
the absent defendant is a non-resident and is not found in the Philippines is the subject of attachment that action
in personam against the defendant will be converted into quasi rem by virtue of the preliminary attachment
issued by the court implemented by the sheriff of the court. So instead of this last instance, the sole purpose of
the applicant in moving for the issuance of PA is to enable to obtain a security for any judgment that may be
rendered later on by the court.
So if you envision a case that is pending in the trial court, there is a plaintiff who filed a complaint for money,
there is no security that has been given to him and then the debtor according to the applicant is a dishonest
person and intends to leave the Philippines with the intention to defraud the applicant, or he may not actually
defraud the applicant. If you will note in the cases mention in Section 1 the conduct of the adverse party will be
criminal in character, embezzlement, misappropriation or property entrusted to him. That is why it is a common
saying in preliminary attachment, that the fraud committed by the adverse party could be a criminal fraud, that
is a crime under RPC or only a civil fraud, it is an act of fraud but it has not reached the level of a crime. And
that will justify the issuance of a writ of PA. So it is called a civil and criminal fraud, it will be sufficient for the
issuance of the preliminary attachment. But the conduct should fall within anyone of the instances mentioned in
section 1. So if the debtor instance draws a check and delivers the check in payment of his obligation to the
creditor and the check bounces, can the creditor file a complaint and ask for the granting of PA? The answer is
yes, according to the court, because the issuance of a bouncing check is covered by section 1, that is fraud in the
performance of the obligation. In section 1, when there is fraud in contracting the obligation, PA can be issued. If
there is fraud in performance that is fraud in contractum, that is dolo causante in civil law. When there is fraud
in performance, there is dolo incidente in civil law. And in both instances that is a justification for the issuance of
a writ of PA.
Supposing that the plaintiff as a creditor holds a collateral given by the debtor, there is already an existing of
security. If there is default in the payment, and the creditor files a complaint. And that debtor has committed an
act of dishonesty with the intention to defraud the creditor. Can the secured creditor properly move for the
issuance of PA? The answer is yes. The Supreme Court has ruled in a judicial foreclosure in a real estate
mortgage when the mortgagee holds a security for the payment of liability the mortgagee can ask for the
issuance of PA and the court can grant the application. Although the applicant admits to the court that he holds
a security. The reason is that if you read the section and contents of the verified application in section 2 one of
the matters that is incorporated in the verified application for preliminary attachment aside from the statement
that the applicant cause of action, the third averment in the application is that the applicant does not hold a
sufficient security for the payment of his claim. So even if there is a security held by the creditor, if he can prove
to the court that the security is not sufficient, he can also ask for a preliminary attachment. So that if the court
grants the PA, the creditor will now look for the other properties of the creditor that could be the subject of
attachment. So if he holds only land by virtue of agreement, that security is not sufficient for the indebtedness of
the party, the court grants its application for preliminary attachment, he may have to look for other property to
be attached. He should not be attaching the same property he already holds a collateral security. So instead one
piece of land, he can attach another piece of land so the creditor now as security of payment of his claim.
In PA, there is a rule that is applicable to PA and other provisional remedies where these provisional remedies
are granted ex parte. The first one or first principle that you should always remember in PA this is applicable to
other provisional remedies, this could be granted ex parte is the rule on prior or contemporaneous service of
summons. The situation contemplated in rule 57 where it says that the court can grant ex parte an application of
PA, is that there is an application that is filed after the filing of complaint. And even before the court acquires
jurisdiction over the person of the defendant through the service of summons, the court may already have
approved the application for PA. Without notice, there is serious irregularity if rule 57 authorizes the court to
grant the PA ex parte that is without notifying the defendant without giving him a notice and even before the
court has acquired jurisdiction over the person of the defendant through the service of the summons. That is
irregular procedurally. Because we learned in procedure that before the court can act validly, the court must
have jurisdiction over the nature of the action, and also the person of the plaintiff and defendant. If the court
does not have jurisdiction over the person of the defendant, the proceedings stated are void. So in rule 57 the
rule authorizes the court to approve PA even if the defendant has not been served with summons, because the
motion is ex parte without notifying the defendant. Since there is a strong possibility that the defendant later on
might challenge the writ, the rules introduced the concept of prior and contemporaneous service of summons.
And the court explained, the issuance of PA is at 3 stage proceeding. First is the filing of the verified application,
the court will ex-parte grant it, and then the court will require the attachment which is always essential before
the court can issue the writ of PA. So that after the issuance of the court of a writ PA, as long as all the conditions
have already been met, the only problem is the implementation or the carrying out of the writ of PA. If the writ
is already in hands of the Sheriff, the sheriff will not carry out by simply attaching the properties of the
defendant. If that is what he is going to do, the attachment of the properties of the adverse party will be void
because the court has not acquired jurisdiction over the person of the defendant. So what rule 57 requires is to
observed the rule on prior and contemporaneous service of summons. If summons has not yet been served
previously, at least the summons should be served contemporaneous with the actual attachment of the property.
So if the properties of the adverse party have been attached, the sheriff should see to it that the summons have
been served upon the defendant today and if the summons is served upon the defendant today that will remedy
the irregularity of lack of jurisdiction. If the summons is served today, the court automatically acquire
jurisdiction over the person of the defendant. That is the reason why the Supreme Court introduced the
principle of prior or contemporaneous service of summons. And as we said earlier, this rule on prior or
contemporaneous service of summons applies to all provisional remedies which can be issued granted by the
court ex parte even before the court has acquired jurisdiction over the person of the defendant. So we can apply
it in injunction, where the court issues ex parte a TRO or PI. Because in the pleading, the provisional remedy is
granted by the court even if before the defendant answers meaning to say even if summons has not yet been
served upon the defendant. Since PA is carried out, it is derogation upon the defendants right of ownership over
his properties, the Supreme Court has also said that the rule on attachment should be strictly construed that is in
order to protect the rights of ownership of the adverse party.
If the properties of the defendant are now the subject of the PA and the properties are personal properties
capable of manual delivery, that could be prejudicial to the right of ownership of the defendant if the personal
property that is subject to PA is a car, that car may no longer be in the possession of the defendant, it will be
seized by the sheriff. It will be in custody of the court as long the preliminary attachment is not lifted. But the car
will not be delivered to the applicant, it will be in the custody of the court. So if the court will finally decide the
case after 3 years, during that 3 year period, the defendant will not be able to use it, it will be used by the sheriff
or of the court. That is why preliminary attachment is really derogation to the rights of ownership.
If the property seized or attached is a piece of land, the defendant’s possession will not be affected. But only
inconvenience to be suffered by the owner is that in the registry of the property, the property is subject of
preliminary attachment. It does not affect his title, there is only a lien, an encumbrance by the PA. SO if he does
not loose ownership, it means to say that he can still sell the property, but the buyer of the property must also
recognized the fact that the writ of PA can be later on sold on a public auction in which case the owner or the
buyer of the property could be conceivable loose his title later on. In other words, the buyer of the land that is
the subject of the PA cannot complain later on that he is a buyer in good faith. He has notice of the existence of
preliminary attachment.
If the defendant owns a sizeable bank account, the sheriff could issue a writ of garnishment and served it upon
the bank. And when the bank received the writ of garnishment, the bank will freeze the account up to the
amount of the claim. The defendant could no longer use his fund anymore, if the defendant tries, the bank will
not allow him to withdraw. If it is a checking account, and he has issued checks to a current account, the checks
will be dishonoured upon presentment because the accounts are now frozen. That’s why PA is really a serious
derogation of the rights of ownership. In that writ of garnishment which is also applicable in execution, that writ
of garnishment will create a new relationship as an incident of the case called a force intervention. The debtor of
the defendant, whether he likes it or not will now be the subject to PA. So when the bank is garnished, whether
he likes it or not, the bank will be forced to intervene. In the sense that the bank will have to follow now the
orders to be issued by the court after the order of garnishment.
The remedies in 57 so that the defendant will get his rights of ownership in full, no longer subject to PA, are the
following: First, He can simply defeat the PA by putting up a cash deposit in the court equivalent to the
amount of the attachment bond. So if the attachment bond is 100k, the defendant has another 100k in his pocket,
he must deposit it in court. And that will compel the court to lift the writ on preliminary attachment. If he does
not have that much cash, he can just file a counter-bond, issued by a surety authorized by the Supreme Court
also up to the 100k. The filing or a bond or payment of cash deposit will make it a ministerial duty of the court to
lift the PA and that will enable to get back his properties. If the car has been seized the car will be returned. His
bank account will now be unfrozen. Cash deposit or put up a counter-bond. The other remedy is to file a motion
the lifting of the PA on the ground of the issuance is improper or irregular. That is always a remedy in order to
challenge the provisional remedy. The granting of the attachment is improper or irregular. But this needs a
motion filed by the defendant. He has to file a motion. And that motion should be heard. When he files a motion
he must give notice to the applicant.
One question that was raised before the Supreme Court is if the defendant has already posted a counter bond,
and therefore the preliminary attachment has already been lifted, can the defendant still make use of the 3rd
remedy. Otherwise, can he file a motion for the lifting of PA or reversal of the order granting the PA.
Considering that the properties previously have been attached have only been returned to the defendant? The
Supreme Court answered yes. In other words, even if the defendant has caused the lifting of the PA, by virtue of
cash deposit or counter-bond, he can still make use of his 3rd remedy, to file a motion for the lifting of the
preliminary attachment. The reason given is that instead of his properties acting now as a security for the claim
of the applicant, he has put up a counter-bond or a deposit. So there is still a security that is involved by the
applicant. If the order granting the PA is lifted, the applicant will be left without security because the counter-
bond liability will be lifted, the cash deposit will have to be returned. So that the applicant will now be a debtor
without any security at all if the court gives an order of PA, although the attached properties have been
returned, by virtue of the bond or the deposit.
Another principle mentioned in rule 57 which is applicable to other provisional remedies where there is a
requirement of a bond is the principle in section 20 that is the extent of liability of the applicant when it turns out
the granting of the remedy of the court is improper or irregular. Section 20 defines the procedure to be followed.
In an action where the PA is issued by the court, the writ will only be lifted if there is a counter-bond, deposit or
the court withdraws the order or reverses it. But ultimately the court will have to decide the merits of the case,
whether or not the plaintiff is entitle to recover. If there is judgment in favour of the applicant, can the adverse
party move for the recovery of the damages even if he lost the case? Yes, if the applicant wins the case on the
merits, he can still be held liable for damages because the issuance of the PA is improper or irregular. It was
explained that if the applicant eventually wins the case it means the applicant has a cause of action. To which the
allegations contained in the verified application for preliminary attachment as stated in section 5. That verified
allegations contains some serious allegations. First one is that the applicant has a cause of action, but if the
applicant wins. It does not necessarily follow that he has complained with the second allegations in the verified
application which is the applicant has a cause of action and that cause of action falls under anyone of the cases
mentioned in section 1 or rule 57. So if the applicant wins, definitely he has a cause of action. But it does not
mean to say that his cause falls under anyone of the cases in section 1. He may not be able to prove that the
existence of dishonesty or the intention of the defendant to defraud the applicant. So if the applicant is not able
to demonstrate that his case falls under the any of the cases in section 1, that means to say that the issuance of
the PA is improper and irregular. The only instances where the court can grant PA are the instances mentioned
in section 1. If the defendant wins the case on the other hand, it means to say that the applicant does not even
have a cause of action, because the complaint is going to be dismissed. The liability of the applicant for damages
will come as a matter of course, but section 20 provides the procedure to be followed in rendering the applicant
liable for damages for the wrongful or improper issuance of PA.
The first principles in section 20, is that the recovery of damages should be had in the same case, not in a
separate or independent civil action. So in that complaint filed by the applicant, the adverse party must have
already submit an application for the recovery of damages arising from the wrongful improper issuance of PA.
The most practical way or informing the court that the adverse party has a claim for damages is to set up in the
answer a compulsory counter claim, for the recovery of damages. If he sets up a compulsory counterclaim, for
the recovery of damages, and then he eventually wins, he will just have to ask the court to motion for the court
to conduct a hearing to the extent of likability to which the adverse party is entitled. What rule 57 tells us then is
that it is not possible for the defendant who has won the case to file a separate complaint for the recovery of
damages arising from the wrongful attachment. If he asks so that action will be dismissed even if there is no
motion to dismiss filed in that second complaint because the ground for dismissal is res judicata which is a non-
waivable defense.
And section 20 also is now very clear that the extent of damages to be recovered by the adverse party is not
equivalent to the attachment bond. In the past if the attachment bond is fixed by the court at 100k, there is an
assumption that if the adverse party will ask for damages, the amount of damages will be limited to 100k that is
the value of the attachment bond. In section 20, there is nothing stated that the liability of the attaching creditor
will be limited to the value of the attachment bond by the court, there is nothing mentioned. What section 20
provides is that if the attachment bond is insufficient to answer for the liability of the applicant to answer for
damages then there could be an availment of writ of execution under rule 39. In other words if the attachment
bond is 100k, the court can fixed the liability of the applicant to 500k pesos, the liability of the bond will of
course be 100k but the 400k can be satisfied by making use of rule 39. We ask the court for the issuance of writ of
execution, there could now be a levy on execution of the properties belonging to the applicant. Remember that
in the section 20 is that it is followed in other provisional remedies like PI, Receiver and replevin. Well there is a
bond required before the court will grant this provisional remedy. The manner of collecting the damages on the
part of the applicant if it turns out later that the issuance of provisional remedy is wrongful or improper.
The next provisional remedy is preliminary injunction. And that the principal action could be any civil case like
a principal action of injunction coupled with the application for TRO or writ of PI. A petitioner of certiorari
under Rule 65 is usually accompanied by verified application of TRO or writ of PI. Because one of the principal
relief, that is asked by the petitioner in rule 65, is to prevent or prohibit the respondent to proceed with the case
that is pending in the court, in the case of certiorari, to set aside a decision or interlocutory order of the
respondent court.
PI and TRO could be availed of in any civil action where the relief or principal relief sought is to prevent the
defendant from performing an act in the case of mandatory injunction to compel a performance of an act. So we
will not limit the principal action in preliminary injunction to civil action, we can also make use of them in
criminal case, even in a special proceedings. As long as the principal is to prevent or prohibit a party from
performing an act or to compel him to perform an act.
In PI, there are in fact 2 provisional remedies that are contemplated. The first one is a TRO and the writ of
Preliminary injunction itself. Both now require an injunction bond. So even if the TRO in exceptional cases can
be granted ex parte, the injunction court should always require a bond. It is not correct to say that it is only in
preliminary injunction where you need a bond, even if the case of the TRO, there is always a need for a bond
fixed by the court. And the general rule which we follow is that a court cannot grant a TRO and PI without a
hearing, unlike a PA. We should always expect a hearing conducted by the court even in cases of the TRO. If
TRO is granted ex-parte, it is only by way of exception. The general rule is that we need a hearing. Although it is
a summary hearing with notice to both party in case of TRO. There is an exception however given in the rules,
when there is grave and irreparable injury.
The court if it is a one sala court can grant a TRO that will not go beyond 20 days, not extendible. But the court
will fix a TRO bond. During the 20 day period, the court will conduct now a new hearing for the purpose of
determining whether or not the court will issue a PI. With respect to PI, the presence of summary hearing is
absolute. A court cannot grant a PI, without a hearing, there is no exception. There must always be a hearing to
be conducted. It is only in TRO where there is an exception to the general rule, there can be an issuance of TRO
ex parte as an exception. AN in the multi-sala court, that is where courts consists of different branches, there is
an executive branch, the executive branch can issue a TRO ex parte, but the TRO ex-parte is good only for 72
hours that is 3 days. And then, in a multi-sala court, what the petitioner usually files in the court is a motion of
special raffle and then if the motion is granted by the raffle. In the meantime the executive judge will issue ex-
parte TRO good for 3 days and after the raffle is completed, the sala before which the action has been assigned
will now conduct a summary hearing to determine whether or not it will issue a writ of PI. Do not forget the
modification in rule 58 by the 2007 circular of the SC. It has something to do with the court that has issued a writ
of PI. The modification in 2007 is that if a court issues a writ of PI which has no term anymore, that is it is good
until it is lifted or until the case has finally decide, unlike the TRO. That that court that issued the writ of PI must
decide the PI within a period of 6 months that is the modification introduced by 20067 circular. The idea of
course is very easy to understand, if the court does not raised a need of 6 months to which the principal action
could be decided, the PI will be perpetual injunction, because it is good until the case has been finally decided.
So if the court grants a PI today, it has only a period of 6 months within which to decide the principal case. And
in deciding the principal case, the court would either rule in favour of the applicant or defendant. If the court
rules in favor of the defendant, the PI is automatically lifted. That means to say that plaintiff has no right at all.
Although the power of the court to enjoin the performance of the act is broad there are certain instances given in
substantive law that is mentioned in the circulars of the Supreme Court where the court cannot properly grant
the PI, even in some cases a TRO.
The first situation wherein the court cannot grant a TRO or PI is in the enforcement of Kalikasan statutes. A
court cannot prevent the enforcement of Kalikasan statutes decided by the Supreme Court, the court of appeals
and RTC cannot prevent the enforcement of Kalikasan statues. Number two, if there is a TEPO issued by any
court, it is only the SC that can prevent the carrying out of the TEPO. In the case of infrastructure projects of the
national government, only the SC can issue an injunctive relief against the carrying out of infrastructure. When
it is a government owned bank that forecloses a mortgage like DBP, it is only the Supreme Court that can stop
the government bank from proceeding with the foreclosure of the mortgage, whether judicial or extra. And in
jurisprudence, the court has no injunctive relief against the bureau of customs because the BOC is an agency that
is tasked with collecting revenues, we cannot give a court the authority to enjoin the bureau of customs from
performing its task to collect revenues for the government. Although the court cannot grant injunctive relief
against the bureau of immigration, against deportation proceedings. That is already beyond the authority of the
injunctive relief.
If we are going to compare the remedies available to the defendant against whom an injunctive writ is issued to
that of a defendant in PA, we will notice right away that in rule 57, in the case of preliminary attachment, if the
adverse party posts or files a counter-bond, it is a ministerial duty of the court to lift the PA, and therefore the
properties will be returned to him. But in PI, if the defendant posts a counter bond which he is entitled, it does
not mean to say that the injunctive court will have a ministerial duty to lift that PI. The court still has to study
the merit of the lifting of the injunction bond. The court cannot simply relief of the presence of the counter-bond
for the lifting of PI. So it is not a matter of right to expect the court to will lift because he has filed a bond. There
will be a motion for hearing and the court will determine the merit. The reason where the rules do not make it a
ministerial duty to the lift the PI simply because there is an injunction bond is the ground that is grave and
irreparable injury. And the meaning of irreparable injury according to the court is that injury cannot be
measured exactly in terms of pesos and centavos that is no mathematical formula in determining the liability or
damages that could be suffered by the applicant in injunction.
In PI and PMI, we should always relate this to the situation stated earlier. That is in summary procedure. A case
that is exclusively cognisable by an inferior court that is following the summary procedure is unlawful detainer
or forcible entry. The civil code contains some articles about procedure when there is a complaint pending
before an inferior court involving an unlawful detainer and forcible entry. And in the civil code, it is provided
that the court may grant PI or PMI in cases of ejectment. If it is an inferior court that grants a PI or PMI, that
cannot be appealed that cannot be challenged under rule 65. In summary procedure rule 65 is a prohibited
pleading. If rule 65 is used in order to challenge an interlocutory order, and the granting of PI or PMI is always
an interlocutory order that is the rule that we follow, as well as in civil code. In PI or PMI granted by an inferior
court in ejectment cases cannot be appealed, cannot also be challenged by petitioner under rule 65. But when
that ejectment case is appealed to RTC, that has jurisdiction in appellate jurisdiction, the civil code provides that
the RTC as an appeal court can also grant a PI or PMI if applied by plaintiff. The PMI or PI granted by the RTC
is still not appealable because it remains interlocutory but it can now be challenged by Rule 65. While we cannot
challenged an interlocutory order granted by an inferior court, in summary procedure, if the same interlocutory
order is granted by the RTC as an appeal court, but rule 65 is a remedy. So we can challenged a PI or PMI
granted by the RTC in ejectment cases. The reason is that in ejectment cases. Summary procedure governs the
case if it is still pending with the inferior court. But once it is appealed to RTC, the RTC will no longer observe
the summary procedure. It will now follow the regular procedure given in the rules of court as an appellate
court.
The third provisional remedy is the receiver which is one provisional remedy that has future not present in
other provisional remedy. Provisional remedies are contemplated to be used by litigants during pendency of the
case, that there is a need, we must have an independent action where we can give to the applicant a venue for
the use of the provisional remedies. In receivers, the court can appoint a receiver during the pendency of the
case if no judgement has been rendered but under the rules, the receivership court could appoint a receiver after
the case has been finally decided and the receivership court can still appoint a receiver even if there is a process
of execution under rule 39. So if the judgement of the court has been entered, in fact if it now in the process of
execution and satisfaction of judgement, a court can still appoint a receiver as provided under rule 39. After a
case has been finally decided, there is no more reason for the court to grant a PI, PMI, if at all, the attachment
will be converted into a final attachment but that will simply be a levy on execution. The PI will be converted
into a permanent injunction. It ceases to be a provisional remedy, but in the case of receivers even if the case has
been finally decided by the court on the merits, the decision has become final and executor, we are now in the
process of execution, the court can still appoint a receiver under the procedures or Rule 39, the court can still
order the same. So there is no fix time in which the court can appoint a receiver. If the case is still pending a
receiver can be appointed, if the case has been decided a receiver can still be appointed. If we are now in the
process of execution, a receiver can still be appointed.
We should relate this to the remedies of a judgment creditor in rule 39 when the judgment creditor is not able to
recover full satisfaction of his account. Under rule 39, one of the remedies granted by the court is for the creditor
to ask for the satisfaction and for examination of the debtor, and the third is for judgement creditor to ask for
appointment of a receiver of the properties of a judgement debtor. So it is very clear, a receiver can be appointed
even if the cases are finally decided or undergoing execution.
A receiver cannot be appointed by the court ex-parte, there has to be a summary hearing. You will also notice
that the ground for the appointment of a receiver is quite broad. Whenever the court feels that there is a need to
appoint a receiver for the purpose of preserving of the property under litigation. So there must be a property in
litigation. And the rules also provided that in foreclosure of mortgage, again the foreclosure of mortgage
assumes that there are collateral, the mortgagee can move for the appointment of a receiver of the property that
is mortgaged. Even if there is no proof that the collateral will be loss or deteriorate, the foreclosing mortgagee
can file a petitioner for the appointment of a receiver, simply because in the deed of mortgage there is a written
stipulation authorizing the mortgagee to move for the appointment of a receiver. But generally the purpose of a
receivership is simply to preserve the property from deterioration. So that the court does not consider the
receiver as a representative of the parties, the SC has classified a receiver as a representative of a court, an officer
of a court. He represents the court, he is an officer of a court.
Because he is an officer of a court, the receiver cannot file a case as a receiver without the consent of the
receivership court. If he decides to file a complaint, on recovery of certain properties under receivership, he
needs permission from the receivership court. On the other hand, if the third person has a grievance against a
receiver in his capacity as a receiver, the third person must also get the permission of the receivership court. So
we find in a situation where the commencement of the action, will need permission from the court who has
appointed a receiver. If a permission is not granted, that action will fail, because it is deemed filed in violation
under the rules given in receivership., We also notice that in the appointment of a receiver, the practically the
issue is left at the discretion of the court. The qualification of a receiver, how many receivers will be appointed,
how much will be paid to the receiver, it all depends upon the receivership court because, of this broad
authority of the court it follows that since it is the court that appoints a receiver, it can also fire and appoint a
new one, as a receiver whenever there is a need for the preservation of the property.
It is with respect to the bond where there is feature of receivership which is not followed in other provisional
remedies. We have an attachment bond, a PI/PMI bond. In receivership, there are two bonds that are filed. The
first is required of the applicant for the appointment of the receiver. And if the court eventually grants the
application, and the court appoints a receiver, the receiver will also be required to post a bond. So there is an
applicant’s bond and there is a receiver’s bond. The receiver bond is designed to protect the parties from
litigation from being abused and mislead by the receiver in the performance of his duties. We go to replevin.
As we said earlier, replevin is accepted as a main action or as a provisional remedy at the same time. SO the
recovery of the possession of personal property capable of manual delivery is usually referred even in the cases
decided by the Supreme Court a complaint for replevin. Although the proper role of replevin is that of
provisional remedy, the principal action is action for recovery possession of personal property. Since that is the
principal action, it automatic rules out real action. In a real action we cannot make use of a writ of replevin. In a
personal action for the recovery of possession of personal property, the proper provisional remedy to enable of
the applicant to immediately recover possession is by applying a writ of replevin or a warrant of seizure. So in
replevin cases, it is always for the recovery of possession of personal property, without this writ of replevin as a
provisional remedy, the plaintiff will be able to recover the personal property only after the court has finally
decided the case and judgment is in favor of the plaintiff so that if he files a complaint for the recovery of a car,
versus the defendant, if he files a complaint today, if he does not use of replevin as a provisional remedy there is
no way by which he can obtain a possession of the car. While it the case is pending. The only time when the
plaintiff can get back the car is when the court has finally decided the case and the decision is in favor of the
plaintiff. So that if the proper court will take 5 years to finally decide the case, during period of 5 years, the car
subject of the litigation will be in the hands of the defendant. Chances are by the time the case is decided, since it
is in the hands of the defendant who expect probably to lose the case, when he turns the car, the car would have
already been junk. That is the role made by a writ of replevin. So if the plaintiff files a complaint today for the
recovery of a personal property or car, which according to the plaintiff belongs to him or at least entitled to
possess the car. If he wants to get the car right away, he should also submit a verified application for writ of
replevin.
And we will notice that in the rules, the principles governing replevin are treated always in favor of the
applicant. Why do we say that the rules are treated in favor of the applicant? He files a complaint today, he
moves for the issuance of writ of replevin today, can the court grant the motion today or tomorrow although the
defendant has not yet been served with summons? In other words can the court grant the application for
replevin ex-parte. And the answer is yes. In fact this is one provisional remedy which cannot be granted by the
higher court. In PA,PI,PMI or receiver, the court of original jurisdiction or appellate jurisdiction could grant
these remedies except replevin. It could only be granted by the trial court because it can be granted only before
the defendant answers.
If the defendant has already answered, then it would be improper for the trial court to grant this writ of
replevin. So if file a complaint today for the recovery of a car, and then submit an application for a writ of
replevin also filed today, and the court grants it today, the sheriff will look for the car. And if the sheriff finds
the car in the possession of the defendant, the sheriff will seize the car from the defendant, but following again
the rule on prior or contemporaneous service of summons in order to cure any defect on jurisdiction. But as we
said earlier, the rule on prior and contemporaneous service of summons found in rule 57, equally applies to
other provisional remedies that are granted ex parte. So the sheriff will seize the car, and then after seizing the
car, the sheriff will take it for 5 days, that is five day holding period. If within that holding period, there is no
counter bond and there is no challenge to the court as to the sufficiency of the replevin, at the 6th day, the sheriff
will give the car to the plaintiff. So if the trial court will take 5 years to ultimately decide on the merits, the
plaintiff will not suffer any harm at all because within the period it is the plaintiff who will be in the possession
of the car, not the defendant.
That is the advantage given by the provisional remedy of replevin. It enables the plaintiff to immediately
recover the possession of the personal property that is the subject of litigation. But there could be some
problems, concerning the service of the writ of replevin. One of the problems is as follows, the court not always
the RTC but may be an inferior court, because if it is a personal property, the jurisdiction depending upon the
value of the personal property alleged in the complaint. So if the complaint is worth 250k, it will be filed in the
inferior court, if it is worth 600k, it will be filed in the RTC. But as long as it has jurisdiction, these courts have
the authority to grant in our complaint to recover possession of the car with a writ of replevin.
The bond required is also different form the usual bond, in other provisional remedies. The bond required is
always double the value of the personal property. In other words, unlike in PA PI where the court has the
discretion to fix the amount of the bond, in replevin, the court has no discretion, the replevin bond will always,
be in double of the value of the property as alleged in the complaint. So if the complaint alleged that the value of
the car is 700k the replevin bond will be 1.4 million. The court has no authority to further decrease or increase
the bond, it will be based on the value of the property according to the allegations contained in the complaint. If
all these requisites are met, the sheriff will seize the property from the defendant, or from any person who
claims to be entitled to its possession because of the authority given by the defendant.
The problem arises when the sheriff seized the car, that the car is not in possession of the defendant, the one in
possession of the car, claims that he is the owner of the car, he is entitled to the possession of the car, he does not
even know who the defendant is. If that is the situation, the sheriff will not seize the car. Because the authority of
the sheriff to seize the car in replevin is very clear, he will seize the car if it is possession of the defendant or
some other person claiming under the authority of the defendant. If it is in the hands of a third person, who does
not raised his interest from the defendant, the sheriff will be committing a crime if he seizes the car from the
third person. So that is always a likelihood, that a writ of replevin even if granted by the court, can easily be
defeated if the sheriff submits a return to the court, informing the court that he could not seize the car because it
is in possession of a third person who is not a litigant in the case. In order to remedy this situation, lawyers have
always advised the clients who are plaintiff that if they file a complaint should always implead the defendant,
the first defendant should be a known defendants. A person who according to the plaintiff is in possession of
the car and the other defendant to be impleaded is an unknown defendant, so we have a complaint where the
caption is plaintiff vs. Juan dela Cruz and john doe, an unknown defendant, we also make use of that. So that
when the sheriff looks for the car, he does not find in possession of Juan de la Cruz, he finds it in the possession
of a third person, that third person will be John Doe. So the sheriff can rightfully seize the car from anybody
who might be in possession of the car. That solves the problem of the sheriff in enforcing the writ of replevin.
You know the rule in unknown defendant, we have to give him name in the complaint itself. John Doe...
anybody who might be in possession of the car, who might be an unknown defendant. If the car is seized, there
is a holding period of a 5 days, within that 5 days period, the defendant should do something if wants to recover
the car. The defendant should file a motion to challenge the sufficiency of the bond, although it is double the
property. He can say that the complaint is undervalued in order that the replevin bond became smaller. That
could be an issue raised. Or if there is a third party claim filed, if a third person claims to be the true owner of
the car, then he can file a third party claim just like in 39 and 57. But the difference in 60 is that the third party
claim in rule 60 must be filed within the 5 day period, if it is not filed within the 5 day period, it becomes a
useless third party claim. After the end of 5 days, the sheriff has the duty to deliver the car to the plaintiff so
while the case is going on it is the plaintiff in possession and enjoying the car.
There was another case decided by the Supreme Court whose facts are as follows. A complaint for replevin was
filed by applicant for recovery of personal property capable of manual delivery. The court included that the writ
that the sheriff cannot enforced the writ because the car can no longer be found, it seems that the property
simply disappeared. What the plaintiff did after receiving the writ of return was to file another application this
time for preliminary attachment of the properties of the defendant. So based on the same complaint, he moved
for replevin which cannot be carried about, he moved for the PA on the ground that the defendant has gotten
old of the property and that he has hidden by the car because the car cannot be found at all. If we go back to 57,
that could be a ground for the issuance of PA. The SC said that the conversion of application for PA could be
properly filed so that the new provisional remedy from replevin could be done founded on the same allegation
in that complaint. The court said it is not proper. That if the plaintiff does not succeed the writ of replevin issued
by the court, he cannot simply file another application for the issuance of PA over the same property or different
property. If the plaintiff decides to move for PA because of failure to carry out the replevin, he should overhaul
the complaint filed. The allegations contained in the complaint for the PA are different from the allegations
contained in the issuance of writ of replevin. In a complaint for replevin, the plaintiff tells the court that he is
owner of the car or entitled to the possession, whereas in the complaint for PI, the property to be attached by the
plaintiff should not be the property belonging to the plaintiff. It should be a property belonging to the defendant
because attachment will be a security in favor of the plaintiff. So if we need a security, we should have in the
hands of the plaintiff a property belonging to the defendant not the property of the plaintiff. So it could not be
done unless, the complaint is amended so that the amended of complaint change the substantial allegations
contained in that complaint.
Another feature of replevin as a provisional remedy is found in last 2 sections of 60, that is in the complaint of
replevin the decision of the court could be in alternative. The alternative in replevin, that the property will be
delivered to the property or the value that the property that could not be delivered. It is only the replevin that
the court is given an express authority to render alternative judgment.
The last provisional remedy under the rules as I said is also mentioned in the circular of the SC on provisional
orders in marriage related cases. In fact the circular are more expansive because it does not mention only
support pendente lite there is a classification in fact of support, spousal support and child support. Although
again in that circular, the family court which has the exclusive jurisdiction over complaint a support can grant
spousal or child support even without hearing or without a bond, which is also a provision in provisional
remedy in support pendente lite. In support pendente lite, it is one of the provisional remedy which does not
require the posting of a bond. We follow that principle in that circular, child support and spousal support could
be granted by the family court with or without a hearing, with or without a bond. That is a principal difference
between the provision on circular on marriage related cases pending in the family court and support pendente
lite that is tried and pending by the court which is not the family court. Because in the rules of court, it is not
proper for a court to grant an order or application for support pendente lite without conducting a hearing.
In the rules, the support pendente lite can only be allowed after conducting a hearing where the parties are
given the change to explain, the reason why this is required in the rules of court under support pendente lite is
that a court cannot conceivable issue an order granting support unless the court is able to determine whether the
petitioner really needs a support and even if he really needs support, whether or not the respondent has the
financial ability to grant support. Because if the court simply grants the application without examining the
financial ability of respondent, the provisional remedy will be useless. It will only end up with the respondent
who has no means of support to go to jail. This is one action where we can imprison a respondent if he does not
comply with the court to issue support although he may not have really the ability to do so. In support
proceedings, there are three remedies given by substantive law which is certainly very unfavourable to us men.
We can be imprisoned for citation of contempt, there could be execution of our properties under rule 39 and the
third, we can be sent to jail not because of contempt but because we have committed a crime. So that in most
cases, before a family court where the defendant admits that even if he wants to give support and that he is not
financially able to do so and the court usually asks the petitioner. Are you willing that your husband go to jail?
And invariably he does not him to go to jail. And the court that the provision on substantive law violates
probably the constitutional provision on equal protection of laws. But in the rules of court on support pendente
lite, you will notice that the principle in section 20 rule 57, rule 57 is not followed at all.
We said earlier that the remedy in order to recover damages in a wrongful issuance of attachment, PI, replevin
should be in the same case. It could not be held in an independent or separate action for damages. But if you
read provision on support pendente lite, it is expressly provided that there could be an independent action for
the recovery of money that has been given as support in compliance with the order of the court. So we do not
have to file a claim in the principal action, the one who gave support following the order of the court for him to
give support can file a separate complaint for the recovery of the amount that is needed in compliance with the
order of the court.
Going back to the circular of the SC in marriage related cases, this is trial can only be made by the family court.
If you were ask why the family court can order child or spousal support without a hearing the side of the
parties, you will just there is no need for the family court to determine the needs of the spouse, or the child, or
the financial ability of the defendant. Because it is in these family related cases, one of the requirements is that
there must be inventory of properties submitted to the family court to the petitioner. So if the family court
analyzes that the property owned in common by the parties, the family court can determine how much the
spouse is entitled to every month or how much given to the minors. So there is also good reason why family
court is not required to conduct hearing on the application of spousal or child support.
Also in respect to the provisional orders granted by the family court in marriage related cases, although the
provisional orders are called by some other name, these provisional orders partake of the nature of the
injunction, an example is a protection order. A protection order in family related cases is effectively a
prohibitory and mandatory injunction at the same time because in the protection order, the family court
prohibits the respondents from performing an act. The family court can tell the respondent that “don’t ever visit
your child in school”, that is effectively a prohibitory injunction. It could also be in form of mandatory
injunction, the court can tell the respondent “do not enter the conjugal house, you just remove the clothing and
don’t ever show your face”. Effectively the protection order in the marriage related cases partakes of a
prohibitory injunction and the mandatory injunction.
We have also this concept of receiver in marriage related cases, instead of appointment in the family court to
appoint a receiver, the co-owned of property or common property, what the court can do is to appoint an
administrator. So the administrator is effectively a receiver of this property under litigation in charge of solving
the property owned in common by the husband and wife.
With respect to the interim reliefs in Amparo, we said four of them, protection order, witness protection,
inspection and production order, and if we add in Amparo and Habeas Data. In effect we have six interim reliefs
available in Amparo. The circular does not mention anything of the filing of a bond before the Amparo court can
issue these interim reliefs, with respect to the Kalikasan circular, when the court issues a TEPO the applicant is
not required to post a bond, it is the adverse party who will be required to post a bond if he files an application
for lifting or dissolution of writ of Kalikasan. And as a security to protect the interest of the applicant, it is the
adverse party who will be required to file a bond before the court will issue an order lifting or desolving the
TEPO.
I suggest that you read the circulars, but do not centre your attention on these provisional remedies or interim
reliefs. Its better off if you centre your attention to the procedures in the civil cases and criminal cases given in
this different circulars. For instance in Kalikasan case, the procedure in civil case that we have learned is not
applicable in some cases and they are applicable only partially in other cases. For instance in the circular of
Kalikasan which can be filed before a RTC, an Inferior court. But the special civil action of Kalikasan and
continuing mandamus are cognizable only by CA and SC. In filing the complaint involving the enforcement of
Kalikasan case, it is not enough to file a complaint, of course the law requires the filing of a bond. Together with
that complaint, the circular requires the party already to append to his complaint the evidence available. The
same is true with the defendant, when he files an answer, he can already attach the evidence in support of his
defences. And in Kalikasan cases, civil action, if the defendant does not file an answer, we do not require rule 9
that is the motion to declare defendant in default, a motion to declare defendant in default is also prohibited in
Kalikasan cases. If the defendant does not file an answer and the plaintiff is prohibited from filing a motion to
declare the defendant in default, do we expect the court to render a judgment just like in summary procedure
according to the tenor of complaint? The Kalikasan circular provides that if the defendant does not answer, it is
the duty of the court to declare the defendant in default, so there is default without the corresponding motion of
the plaintiff in Kalikasan cases, it becomes the duty of the court to issue an order declaring the defendant in
default, and thereafter receives evidence ex parte.
And in Kalikasan cases, while the court’s totally used the state policy which encourages the compromise
agreement of settling the civil action. If there is a compromise agreement based in a Kalikasan civil case, the
judgement is not called a judgement based upon compromise, the circular has another term that is a consent
decree. That is just a judgement based on a compromise. I suggest you read the circulars, the procedure that
should be read.
You will also notice that the rules on evidence are not necessarily followed in Kalikasan cases. Although the
action maybe a special proceeding, the quantum that usually apply could be near substantial evidence. Which is
also the same principle in Amparo. If you read the circular, the quantum of evidence is only substantial
evidence, same in quasi judicial proceeding although Amparo is a judicial proceeding. So there is no problem if
the Supreme Court changes the quantum of evidence to be followed as in Amparo. But there is something
irregular, if a quasi judicial body will adopt a rule that quasi judicial body must support his stand with
preponderance of evidence. That act of is void, the rule on quantum of evidence is the turf of Supreme Court.
The administrative bodies cannot change the quantum of evidence.
We start with 63: Declaratory relief and other Similar Remedies.

Rule 63 enumerates four SPECIAL CIVIL ACTIONS. The first is DECLARATORY RELIEF and OTHER
SIMILAR REMEDIES encompasses three special civil actions enumerated in the Rules: 1. Reformation of
Instrument; 2.Quieting of Title and; 3. Consolidation of Title under 1607 of the Civil Code. Although they are
contained in the same Rule, they are governed by different rules, by different procedures. So the procedure in
declaratory relief is different from the procedure in the other similar relief. The requirements of declaratory
relief are not the requirements of other similar remedies.
With respect to DECLARATORY RELEIF, the obvious nature of declaratory relief which makes it a special civil
action is that the petition must be filed must be filed before a breach or violation is committed. In other
words, if we are going to apply the principles governing ordinary civil actions, petition for declaratory relief will
be dismissed outright; because at the time of the filing of the petition, the petitioner does not have a cause of
action. There is no allegation in the petition for declaratory relief that there is a right that has been violated by
the act or omission of another. If there is an allegation, the petition ceases to be a declaratory relief. It becomes an
ordinary civil action. In short, a petition for declaratory relief is a preventive mechanism in order to prevent
contracting parties from getting involved later on in an ordinary civil action which could be tedious. Because, in
declaratory relief, the petitioner does not allege that he has a right or even if he has a right, it has not been
violated. And therefore, having no cause of action, the only relief which the petitioner seeks from the Court is
for the Court to determine what his rights are under a written instrument, deed or contract. The petitioner is not
absolutely certain if he has rights under a certain deed or instrument; and he is asking the Court to declare what
his rights are. So after the Court has declared what his rights are, that is the end. So we cannot have a petition
for declaratory relief with a prayer for damages. A prayer for damages in a declaratory relief will defeat the
nature of declaratory relief. Damages are awarded by the Court if there is already a breach of a right belonging
to the plaintiff.
You will notice that there is an enumeration in 63 about the instruments which can be subject of declaratory
relief; deed, will, contract, statute or an ordinance. With respect to statute or ordinance, the same principle
applies. So we cannot file a petition for declaratory relief involving a statute or ordinance if there has been a
violation of the statute or ordinance. So before the effectivity of the statute or ordinance, the usual prayer for a
petition for declaratory relief is to declare the statute or ordinance void or unconstitutional. So, you will notice in
some instances after the Congress enacted law, and the President has signed it into law, there is always a date of
effectivity given to that statute. If somebody wants to challenge the validity or constitutionality of that statute,
he must do so before the law takes effect and before the violation and before a violation of the law is committed,
solely for the purpose of determining if the statute or ordinance is unconstitutional or constitutional. So you will
meet decisions of the Court in certain declaratory relief to the effect that we cannot file a motion for execution in
order to carry out the declaratory judgment. The judgment in declaratory relief is usually called a
DECLARATORY JUDGMENT in order to differentiate it from what the Court usually renders after a judgment
has been entered in order to clarify a judgment. In the latter phase, we usually call the latter judgment as
CLARIFICATORY JUDGMENT. In Clarificatory Judgment, there is already a judgment rendered by the Court, it
has become final and executory but there are certain ambiguities which will make it hard for the Court of origin
to execute that judgment. The remedy of the interested party is to file a motion for a rendition of a Clarificatory
Judgment.
In Declaratory Judgment, the Court will only tell the petitioner what is rights are, what his duties are under a
certain will, deed or contract. Or in the case of a statute or ordinance, the Court will tell the petitioner whether a
statute or ordinance is constitutional or unconstitutional. So after the Court has done its duty, there is more need
for the prevailing party to move for execution. We don’t apply Rule 39 to a petition for declaratory. So that is the
first nature of Declaratory Relief which makes it a special civil action. So there is really no cause of action as
contemplated in ordinary civil action, where there is a right that has been violated by the defendant.
The second procedural rule that we apply to declaratory relief, which is not followed in other special civil
actions or ordinary civil action, is the authority of the Court not to entertain the petition for declaratory relief.
The Court can outright tell the petitioner, I am not inclined to entertain your petition. The Court can refuse to
declare the rights and duties of the petitioner or respondent under a deed, will or contract on the ground for
instance that the judgment of the Court will not bind parties who have not been impleaded a petition for
declaratory relief, which shows that a declaratory relief is not in rem but purely a petition in personam, it cannot
bind parties who have not been impleaded. Although, these parties who have not been so impleaded may be
contracting parties of the contract, subject matter of the litigation.
What is the competent Court in Rule 63? If the petition is for declaratory relief, it is the Regional Trial Court
because a petition for declaratory relief is not one capable of pecuniary estimation. But if we are going to look
for the competent court for other similar remedies, it is not always the RTC, we have to take into account in the
provisions of BP 129. For instance, reformation of instruments, is that cognizable solely by the RTC? Yes,
because reformation of instruments is not one capable of pecuniary estimation. What is the competent court for
Quieting of Title? It is not necessarily the RTC. It is because Quieting of Title involved title to or possession of
real property and under the standard provided by BP 19, actions involving title to or possession of real property
could be cognizable by the RTC or an inferior court depending on the assessed value of that property. So,
quieting of title could be cognizable by an Inferior Court if the assessed value of the property is only P5000 or
P10000. We apply the standard provided in the provisions under BP 129.
The third special civil action is Consolidation of Title. The competent Court is also decided by the assessed value
of the property involved, because consolidation of title always involves a real property. Using the standard
applied by the Court in Quieting of Title, we have to allege the assessed value of the property in order to give to
the trial court jurisdiction over the case.
Why do we need to file a special action for Consolidation of Title? Does not Consolidation of Title come a
matter of course if the period of redemption has expired and the redemption-er has failed to exercise his right of
redemption? That is in fact the principle that we follow in Rule 39. In execution of judgment, if a real property is
sold in a public auction by virtue of a levy or execution, the highest bidder will not get automatically a title in
his own name. Rule 39 provides for a period of redemption, which is usually one (1) year from the registration
of the certificate of sale. After the lapse of one year, if the sheriff is not informed by the highest bidder whether
or not there has been a redemption that is carried out, what the sheriff will do is to issue a FINAL DEED OF
SALE. Initially, what the Sheriff issued in Rule 39 is a Certificate of Sale,that is the one that is recorded in the
Register of Deeds. So the Register of Deed can easily determine if the period of redemption has already expired.
It is just a matter of counting from the registration of the Certificate of Sale. If there is no redemption, the highest
bidder will naturally be interested in getting a title in his own name. The title of the judgment debtor will have
to be cancelled and a new title should be issued by the Registry of Deeds in the name of the highest bidder. The
highest bidder does not have file an action for the consolidation of title. The highest bidder will only secure from
the Sheriff or the Court this Final Deed of Sale and when he records this Final Deed of Sale, the Registry of
Deeds will simply cancel the title of the judgment debtor and issue a new one in the name of the highest bidder.
So the highest bidder now has in his hands Torrens Title in his own name. So in Rule 39 there is no such thing as
Consolidation of Title under Rule 63 as a Special Civil Action. This is also the procedure that is followed when
a Real Mortgaged in foreclosed. The mortgage is foreclosed, it is sold at a public auction and there is a highest
bidder. The sheriff will execute a Certificate of Sale and will be recorded and from that time on we count the one
year of redemption. If there is no redemption, the Sheriff will again issue a Final Deed of Sale and on the basis of
that Final Deed of Sale, the Registry of Deeds will cancel the title of the Mortgagor and issue a new title in the
name of the highest bidder. So you will notice under special laws, The Mortgage Law and even under Rule 39,
in order to consolidate title we do not require an action to Consolidate Title. The only public officer who is going
to deal with the interested party is the Register of Deeds, who has a ministerial duty to issue a title, a final deed
of sale. Why do we require an action to consolidate title under 1607 under the Civil Code? If you read the Civil
Code, 1607 also refers redemption rights, there is sale with a right redeem. It is a voluntary sale; it is not a forced
sale not like the sale in Rule 39. But it is a voluntary sale if you compare it in a sale in a foreclosure of mortgage.
Because in a foreclosure of mortgage, the mortgagee is given a special authority by the mortgagor to sell the
property. But suddenly 1607, the Rules of Court require an action, a special civil action for the Consolidation of
Title although the factual antecedents are the same. There is a right of redemption for a certain period, but the
right holder fails or does not exercise his right of redemption. Why do we require the adverse party to go to
court in order to obtain from the court a decision directing the Register of Deed to Consolidate the Title of the
buyer with right to redeem? The fact that is present in 1607 is that right of redemption is what is called is
CONVNETIONAL REDEMPTION; but in Rule 39 and Foreclosure of Mortgage is LEGAL REDEMPTION. It is
that classification of redemption into conventional which makes the distinction under the Civil Code. In the
Civil Code, when there is a sale with right of redemption, that redemption is called Conventional Redemption.
It is not Legal Redemption. When the period expires, the period for Conventional Redemption is also one year,
the buyer of the property cannot go directly to the Registry of Deeds although he can convince the Registry of
Property that the period has already expired, there is no need to go to Court for the Registry of Deeds to
compute if the period has already expired, anybody can do that. So the buyer in Conventional Redemption
should be allowed to deal with the Registry of Deeds without requiring him to file an action in Court. The
reason why we suddenly provide a different remedy in a Conventional redemption is because under the Civil
Code when a sale with a right to repurchase, is not a sale but an equitable mortgage. The Civil Code assumes, a
disputable presumption, that the contract entered into is not a sale but an equitable mortgage. So in so far as the
Civil Code is concerned, the seller is not a genuine seller but is only a mortgagee. And the buyer is not a true
buyer, but is really a mortgagee, notwithstanding the designation as buyers and sellers in a Contract of Sale.
Also, the Register of Deeds has to observe this disputable presumption that a dead of sale with right of
redemption is presumably an equitable mortgage. So the party need to go to the Court to declare that his
Contract Sale, in so far as consolidation of title is concerned is a genuine Contract of Sale. This is the special
feature with regard to consolidation of title under Artcile 1607 of the Civil Code, to give the buyer the chance to
present evidence to defeat that disputable presumption under the Civil Code. If the plaintiff, who is the buyer In
that Sale, fails to defeat that disputable presumption, he can still obtain consolidation f title but he will be forced
to file another special civil action, this time Foreclosure of Mortgage. Hence, if he is not able to obtain a decision
under Rule 63 in a Special Civil Action to consolidate an Action under 1607, because he is a mortgagee in an
equitable mortgage, he has the right to foreclose the mortgage. And the only mean to foreclose the mortgage is
to avail another Civil Action which is a foreclosure of a Real Estate Mortgage. But the procedure is quite lengthy.
The Court is obligated to render three decisions.
NOTE: Although the Court can outright refuse to entertain a petition for Declaratory relief, it cannot outright
refuse to entertain Reformation of Instrument; .Quieting of Title and; Consolidation of Title.

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We start with 63: Declaratory relief and other Similar Remedies.

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