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EXAMINATION OF OBLIGOR OF JUDGMENT
OBLIGOR (SEC. 37)
When the return of a writ of execution against the
property of a judgment obligor shows that the judgment
remains unsatisfied, in whole or in part, and upon proof
to the satisfaction of the court which issued the writ, that
person, corporation, or other juridical entity has property
of such judgment obligor or is indebted to him, the court
may, by an order, require such person, corporation, or
other juridical entity, or any officer or member thereof, to
appear before the court or a commissioner appointed by
it, at a time and place within the province or city where
such debtor resides or is found, and be examined
concerning the same.
The service of the order shall bind all credits due the
judgment obligor and all money and property of the
judgment obligor in the possession or in control of such
person, corporation, or juridical entity from the time of
service; and the court may also require notice of such
proceedings to be given to any party to the action in such
manner as it may deem proper.
EFFECT OF JUDGMENT OR FINAL ORDERS: RES
JUDICATA (SEC. 47)
In case of a judgment or final order against a specific
thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or
status of a particular person or his relationship to another,
the judgment or final order is conclusive upon the title to
the thing, the will or administration, or the condition,
status or relationship of the person; however, the probate
of a will or granting of letters of administration shall only
be prima facie evidence of the truth of the testator or
intestate;
In other cases, the judgment or final order is, with respect
to the matter directly adjudged or as to any other matter
that could have been raised in relation thereto, conclusive
between the parties and their successors in interest by title
subsequent to the commencement of the action or special
proceeding, litigating for the same thing and under the
same title and in the same capacity; and
In any other litigation between the same parties or their
successors in interest, that only is deemed to have been
adjudged in a former judgment or final order which
appears upon its face to have been so adjudged, or which
was actually and necessarily included therein or necessary
thereto.
ENFORCEMENT AND EFFECT OF FOREIGN
JUDGMENTS OR FINAL ORDERS (SEC. 48)
1) In case of a judgment or final order upon a specific
thing, the judgment or final order is conclusive upon
the title to the thing; and
2) In case of a judgment or final order against a person,
the judgment or final order is presumptive evidence
of a right as between the parties and their successors
in interest by a subsequent title. In either case, the
judgment or final order may be repelled by evidence
of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
A foreign judgment on the mere strength of its
promulgation is not yet conclusive, as it can be annulled
on the grounds of want of jurisdiction, want of notice to
the party, collusion, fraud, or clear mistake of law or fact.
It is likewise recognized in Philippine jurisprudence and
international law that a foreign judgment may be barred
from recognition if it runs counter to public policy.
PROVISIONAL REMEDIES (Rules 57-61)
NATURE OF PROVISIONAL REMEDIES
Provisional remedies are temporary, auxiliary, and
ancillary remedies available to a litigant for the protection
and preservation of his rights while the main action is
pending. They are writs and processes which are not
main actions and they presuppose the existence of a
principal action.
Provisional remedies are resorted to by litigants for any of
the following reasons:
1) To preserve or protect their rights or interests
while the main action is pending;
2) To secure the judgment;
3) To preserve the status quo; or
4) To preserve the subject matter of the action.
Provisional remedies specified under the rules are:
1. Preliminary attachment (Rule 57);
2. Preliminary injunction (Rule 58);
3. Receivership (Rule 59);
4. Replevin (Rule 60); and
5. Support pendent lite (Rule 61).
JURISDICTION OVER PROVISIONAL REMEDIES
The court which grants or issues a provisional remedy is
the court which has jurisdiction over the main action.
Even an inferior court may grant a provisional remedy in
an action pending with it and within its jurisdiction.

PRELIMINARY ATTACHMENT (RULE 57)
Preliminary attachment is a provisional remedy issued
upon order of the court where an action is pending to be
levied upon the property of the defendant so the property
may be held by the sheriff as security for the satisfaction
of whatever judgment may be rendered in the.
When availed of and is granted in an action purely in
personam, it converts the action to one that is quasi in
rem. In an action in rem or quasi in rem, jurisdiction over
the res is sufficient. Jurisdiction over the person of the
defendant is not required.
There is no separate action called preliminary
attachment. It is availed of in relation to a principal
action.
Preliminary attachment is designed to:
1) Seize the property of the debtor before final
judgment and put the same in custodial egis even
while the action is pending for the satisfaction of
a later judgment.
2) To enable the court to acquire jurisdiction over
the res or the property subject of the action in
cases where service in person or any other service
to acquire jurisdiction over the defendant cannot
be affected.
Three stages in the grant of the Preliminary Attachment
1) The court issues the order granting the
application
2) The writ of attachment issues pursuant to the
order granting the writ
3) The writ if implemented
For the 2 initial stages, it is not necessary that jurisdiction
over the person of the defendant be first obtained.
However, once the implementation of the writ
commences, the court must have acquired jurisdiction
over the defendant for without such jurisdiction, the court
has no power or authority to act in any manner against
the defendant.
PRELIMINARY ATTACHMENT HAS
THREE TYPES
(a) PRELIMINARY ATTACHMENT – one issued at
the commencement of the action or at any time before
entry of judgment as security for the satisfaction of any
judgment that may be recovered. Here the court takes
custody of the property of the party against whom
attachment is directed.
(b) GARNISHMENT – plaintiff seeks to subject either
the property of defendant in the hands of a third person
(garnishee) to his claim or the money which said third
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person owes the defendant. Garnishment does not
involve actual seizure of property which remains in the
hands of the garnishee. It simply impounds the property
in the garnishee’s possession and maintains the status quo
until the main action is finally decided. Garnishment
proceedings are usually directed against personal
property, tangible or intangible and whether capable of
manual delivery or not.
(c) LEVY ON EXECUTION – writ issued by the court
after judgment by which the property of the judgment
obligor is taken into custody of the court before the sale of
the property on execution for the satisfaction of a final
judgment. It is the preliminary step to the sale on
execution of the property of the judgment debtor.
ð The grant of the remedy is addressed to the
discretion of the court whether or not the
application shall be given full credit is
discretionary upon the court. In determining the
propriety of the grant, the court also considers
the principal case upon which the provisional
remedy depends.
GROUNDS FOR ISSUANCE OF WRIT OF
ATTACHMENT
At the commencement of the action or at any time before
entry of judgment, a plaintiff or any proper party may
have the property of the adverse party attached as security
for the satisfaction of any judgment that may be
recovered in the following cases:
1) In an action for the recovery of a specified
amount of money or damages, other than moral
and exemplary, on a cause of action arising from
law, contract, quasi-contract, delict or quasi-
delict against a party who is about to depart from
the Philippines with intent to defraud his
creditors;
2) In an action for money or property embezzled or
fraudulently misapplied or converted to his own
use by a public officer, or an officer of a
corporation, or an attorney, factor, broker, agent
or clerk, in the course of his employment as such,
or by any other person in a fiduciary capacity, or
for a willful violation of duty;
3) In an action to recover the possession of property
unjustly or fraudulently taken, detained or
converted, when the property, or any party
thereof, has been concealed, removed, or
disposed of to prevent its being found or taken by
the applicant or an authorized person;
4) In an action against a party who has been guilty
of a fraud in contracting the debt or incurring the
obligation upon which the action the action is
brought, or in the performance thereof;
5) In an action against a party who has removed or
disposed of his property, or is about to do so,
with intent to defraud his creditors; or

6) In an action against a party who does not reside
and is not found in the Philippines, or on whom
summons may be served by publication (Sec. 1).
REQUISITES
The issuance of an order/writ of execution requires the
following:
1) The case must be any of those where preliminary
attachment is proper;
2) The applicant must file a motion whether ex parte
or with notice and hearing;
3) The applicant must show by affidavit (under oath)
that there is no sufficient security for the claim
sought to be enforced; that the amount claimed
in the action is as much as the sum of which the
order is granted above all counterclaims; and
4) The applicant must post a bond executed to the
adverse party.
ü This is called an ATTACHMENT
BOND, which answers for all damages
incurred by the party against whom the
attachment was issued and sustained by
him by reason of the attachment.
ISSUANCE AND CONTENTS OF ORDER OF
ATTACHMENT
An order of attachment may be issued either ex parte or
upon motion with notice and hearing by the court in
which the action is pending, or by the CA or the SC.
It may issue ex parte and even before the summons is
served upon the defendant. However, the writ may not be
enforced and validly implemented unless preceded or
simultaneously served with the summons, a copy of the
complaint, application for attachment, the order of
attachment and the attachment bond.
AFFIDAVIT AND BOND
The order of attachment shall be granted only when it
appears by the affidavit of the applicant that the requisites
for a grant of attachment are present.
The applicant must thereafter give a bond executed to the
adverse party in the amount fixed by the court in its order
granting the issuance of the writ, conditioned that the
latter will pay all the costs which may be adjudged to the
adverse party and all damages which he may sustain by
reason of the attachment, if the court shall finally adjudge
that the applicant was not entitled thereto
RULE ON PRIOR OR CONTEMPORANEOUS
SERVICE OF SUMMONS
F Enforcement of the writ or preliminary attachment
must be preceded by contemporaneously
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accompanied by the service of summons, copy of the
complaint, application and affidavit of the
attachment and the bond in favor of the adverse
party.
F The failure to acquire jurisdiction over the person of
the adverse party shall render the implementation of
the writ void.
Exceptions to the requirement:
1) Where the summons could not be served
personally or by substituted service despite
diligent efforts;
2) The defendant is a resident of the Philippines
who is temporarily out of the country;
3) The defendant is a non-resident; or
4) The action is one in rem or quasi in rem (Sec. 5).
MANNER OF ATTACHING REAL AND
PERSONAL PROPERTY
The sheriff enforcing the writ shall without delay and
with all reasonable diligence attach, to await judgment
and execution in the action, only so much of the property
in the Philippines of the party against whom the writ is
issued, not exempt from execution, as may be sufficient
to satisfy the applicant's demand.
In attaching REAL PROPERTY, or growing crops
thereon or any interest therein, a copy of the order shall
be filed with the registry of deeds along with a description
of the property attached and by leaving a copy of such
order with the occupant of the property, if any or such
other person or his agent if found within the province.
In attaching PERSONAL PROPERTY capable of
manual delivery - by taking and safely keeping it in his
custody after issuing the corresponding receipt therefor.
As to STOCKS OR SHARES, or an interest thereon, by
leaving with the president or managing agent of the
company, a copy of the writ, and a notice stating that the
stock or interest of the party against whom the
attachment is issued is attached in pursuance of such writ.
DEBTS AND CREDITS, including bank deposits,
financial interest, royalties, commissions and other
personal property not capable of manual delivery shall be
attached by leaving with the person owing such debts, or
in possession or control of such credits or other personal
property, or with his agent, a copy of the writ, and notice
that such properties are attached.
As to interest of the party against whom attachment is
issued in property BELONGING TO THE ESTATE OF
THE DECEDENT are attached by giving a copy of the
writ and notice to the executor or administrator and the
office of the clerk of court where is the estate is being
settled.

If the property to be attached is IN CUSTODIA LEGIS, a
copy of the writ shall be filed with the proper court or
quasi-judicial agency, and notice of the attachment served
upon the custodian of such property.
WHEN PROPERTY ATTACHED IS CLAIMED BY
THIRD PERSON
The third party may resort to any of the following
remedies which are cumulative and thus could be
resorted independently and separately from the others:
a) He may avail of the remedy of terceria - by
making an affidavit of his title thereto or his right
to possession thereof, stating the grounds of such
right or title. The affidavit must be served upon
the sheriff and the attaching party. The sheriff
shall not be bound to keep the property under
attachment except if the attaching party files a
bond approved by the court.
b) The third person may invoke the court’s
authority in the same case and move for a
summary hearing on his claim to decide if the
sheriff has acted correctly or not.
c) The third party may file a separate action to
nullify the levy with damages resulting from the
unlawful levy and seizure. This action may be
totally distinct from the case in which the
attachment was issued.
HOW TO PREVENT THE ATTACHMENT
The party whose property is sought to be attached, my
prevent the attachment by doing either of two things:
1) By depositing with the court an amount equal to
the value of the property to be attached; or
2) By giving a counter bond executed to the
applicant, in an amount equal to the bond posted
by the latter to secure the attachment.
DISCHARGE OF ATTACHMENT AND THE
COUNTER-BOND
If the attachment has already been enforced, the party
whose property has been attached may file a MOTION to
discharge the attachment. This motion shall be with
notice and hearing. After due notice and hearing, the
court shall discharge the attachment if the movants makes
a CASH DEPOSIT or files a COUNTER-BOND
executed to the attaching party with the clerk of court
where the application is made.
Attachment may likewise be discharged without the need
for filing of a counter-bond. This is possible when the
party whose property has been attached files a motion to
set aside or discharge the attachment and during the
hearing of the motion, he proves that:
1) The attachment was improperly or irregularly
issued or enforced; or
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2) The bond of the attaching creditor is insufficient;
or
3) The attachment is excessive and must be
discharged as to the excess; or
4) The property is exempt from execution, and as
such is also exempt from preliminary
attachment.
ð “Improperly” (e.g. writ of attachment was not based
on the grounds in Sec. 1)
ð “Irregularly” (e.g. writ of attachment was executed
without previous or contemporaneous service of
summons)
SATISFACTION OF JUDGMENT OUT OF
PROPERTY ATTACHED
If judgment is rendered in favor of the attaching party and
execution issued, the sheriff may cause the judgment to
be satisfied out of the property attached, if it be sufficient
for that purpose.
PRELIMINARY INJUNCTION (RULE 58)
ð Can be provisional remedy and can also an
action
DEFINITIONS AND DIFFERENCES:
PRELIMINARY INJUNCTION AND TEMPORARY
RESTRAINING ORDER
A preliminary injunction is an order granted at any stage
of an action or proceeding prior to the judgment or final
order, requiring a party or a court, agency or a person to
either refrain (prohibitory) from or to perform (mandatory)
a particular act or acts during the pendency of the action.
Temporary restraining order (TRO) is issued is an order
to maintain the status quo between and among the parties
until the determination of the prayer for a writ of
preliminary injunction. The status quo is the last, actual,
peaceable and uncontested situation which precedes a
controversy.
The judge may issue a TRO with a limited life of 20 days
from date of issue. If before the expiration of the 20 day
period, the application for preliminary injunction is
denied, the TRO would be deemed automatically
vacated. If no action is taken by the judge within the 20
day period, the TRO would automatically expire on the
20th day by the sheer force of law, no judicial declaration
to that effect being necessary.
A writ of preliminary injunction cannot be granted
without notice and hearing. A TRO may be granted ex
parte if it shall appear from facts shown by affidavits or
by the verified application that great or irreparable injury

would result to the applicant before the matter can be
heard on notice, the court in which the application for
preliminary injunction was made my issue a TRO ex
parte for a period not exceeding 20 days from service to
the party sought to be enjoined.
REQUISITES
1) There must be a verified petition,
2) The application must establish that he has a right of
relief or a right to be protected and that the act
against which the injunction is sought violates such
right,
3) The applicant must establish that there is a need to
restrain the commission of the continuance of the
acts complained of and if not enjoined would work
injustice to him,
4) A bond must be posted, unless otherwise exempted
by the court.
5) The threatened injury must be incapable of pecuniary
estimation.
KINDS OF INJUNCTION
PROHIBITORY – its purpose is to prevent a person
from the performance of a particular act which has not
yet been performed.
1) Preliminary – secured before the finality of
judgment.
2) Final – issued as a judgment, making the
injunction permanent. It perpetually restrains a
person from the continuance or commission of
an act and confirms the previous preliminary
injunction. It is one included in the judgment as
the relief or part of the relief granted as a result of
the action, hence, granted only after trial and no
bond is required.
MANDATORY – its purpose is to require a person to
perform a particular positive act which has already been
performed and has violated the rights of another.
a) Preliminary
b) Final
Requisites for the issuance of mandatory
preliminary injunction
(a) The invasion of the right is material and
substantial;
(b) The right of a complainant is clear and
unmistakable;
(c) There is an urgent and permanent necessity for
the writ to prevent serious damage.
WHEN WRIT MAY BE ISSUED
It may be issued at any stage prior to the judgment or
final order.
GROUNDS FOR ISSUANCE OF PRELIMINARY
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INJUNCTION
1) The applicant is entitled to the relief demanded, and
the whole or part of such relief consists in restraining
the commission or continuance of the act or acts
complained of, or in requiring the performance of an
act or acts either for a limited period or perpetually;
or
2) The commission, continuance or non-performance of
the act or acts complained of during the litigation
would probably work injustice to the applicant; or
3) A party, court, agency or a person is doing,
threatening or is attempting to do, or is procuring or
suffering to be done, some act or acts probably in
violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to
render the judgment ineffectual.
GROUNDS FOR OBJECTION TO OR FOR THE
DISSOLUTION OF INJUNCTION OR
RESTRAINING ORDER
1) Upon showing of insufficiency of the application;
2) Other grounds upon affidavit of the party or person
enjoined;
3) Appears after hearing that irreparable damage to the
party or person enjoined will be caused while the
applicant can be fully compensated for such damages
as he may suffer, and the party enjoined files a
counter-bond;
4) Insufficiency of the bond;
5) Insufficiency of the surety or sureties.
DURATION OF TRO
The lifetime of a TRO is 20 days, which is non-extendible
(AM 02-02-07-SC).
If it is shown that the applicant would suffer great or
irreparable injury before the application for the writ of
injunction can be heard, the court may issue a temporary
restraining order (TRP) ex parte which shall be effective
for a period not exceeding twenty (20) days from service
on the party sought to be enjoined. Within the said
twenty-day period, the court must order said party to
show cause why the injunction should not be granted,
determine within the same period whether or not the
preliminary injunction shall be granted, and accordingly
issue the corresponding order.
If the matter is of extreme urgency and the applicant will
suffer grave injustice and irreparable injury, the executive
judge of a multiple-sala court or the presiding judge of a
single sala court may issue ex parte a temporary
restraining order effective for only seventy-two (72)
hours. Within such period, the judge shall conduct a
summary hearing to determine whether the temporary
restraining order shall be extended to 20 days. The 72
hours shall be included in the maximum 20 day period.

If a TRO is by the Court of Appeals or a member thereof,
it shall be effective for sixty (60) days from notice to
service party to be enjoined.
If a TRO is issued by the Supreme Court or a member
thereof, it shall be effective until further orders.
BAN OF TRO OR WRIT OF INJUNCTION IN
CASES INVOLVING GOVERNMENT
INFRASTRUCTURE PROJECTS: RA 8975
No court except the SC shall issue any or preliminary
injunction or preliminary mandatory injunction against
the government or it subdivisions, officials or any person
or entity whether public or private acting under the
government direction, to restrain, prohibit or compel the
following acts:
1) Acquisition, clearance and development of the
right of way and/or site or location of any
government project,
2) Bidding or awarding of a contract or project of
the national government,
3) Commencement, prosecution, execution,
implementation, operation of any such contract
or project,
4) Termination or rescission of any such
contract/project and
5) The undertaking or authorization of any other
lawful activity necessary for such contract or
project.
ü Any TRO, preliminary injunction and
preliminary mandatory injunction issued in
violation of the above prohibition shall be void.
Exceptions to the prohibition:
a) In cases of extreme urgency;
b) If it involves constitutional issue;
c) Grave injustice and irreparable injury
will arise unless a TRO is issued.
ü In one case, the SC said that injunction is not
available to stop infrastructure projects of the
government including arrastre and stevedoring
operations.
RULE ON PRIOR OR CONTEMPORANEOUS
SERVICE OF SUMMONS IN RELATION TO
ATTACHMENT
When an application for a writ of preliminary injunction
or TRO is made in a complaint or other initiatory
pleading, the case, if filed in a multi-sala court, shall be
raffled only after notice to and in the presence of the
adverse party. In any event, such notice shall be preceded
or contemporaneously accompanied by a service of
summons, together with a copy of the complaint or
initiatory pleading and the applicant’s affidavit and bond,
upon the adverse party in the Philippines.
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It is not available where
a) the summons could not be served personally or
by substituted service despite diligent efforts or
b) where the adverse party is a resident of the
Philippines temporarily absent therefrom or is a
non-resident thereof.
SUMMARY/STAGES OF INJUNCTION
(1) SEVENTY-TWO (72) HOUR TEMPORARY
RESTRAINING ORDER
a) If the matter is of extreme urgency and the
applicant will suffer grave injustice and
irreparable injury;
b) Issued by executive judge of a multi-sala court or
the presiding judge of a single-sala court;
c) Thereafter must
i. Serve summons and other documents
ii. Conduct summary hearing to determine
whether the TRO shall be extended to
20 days until the application for
preliminary injunction can be heard.
(2) TWENTY (20) DAY TRO
a) If it shall appear from the facts shown by
affidavits or by the verified application that great
or irreparable injury would result to the applicant
before the matter can be heard on notice;
b) If application is included in initiatory pleading:
1. Notice of raffle shall be preceded, or
contemporaneously accompanied, by
service of summons, together with a
copy of the complaint or initiatory
pleading and the applicant‘s affidavit
and bond, upon the adverse party in the
Philippines;
2. Raffled only after notice to and in the
presence of the adverse party or the
person to be enjoined.
c) Issued with summary hearing (to determine
whether the applicant will suffer great or
irreparable injury) within 24 hours after sheriff‘s
return of service and/or records are received by
the branch selected by raffle;
d) Within 20-day period, the court must order said
person to show cause why the injunction should
not be granted, and determine whether or not the
preliminary injunction shall be granted, and
accordingly issue the corresponding order;
e) Including the original 72 hours, total effectivity
of TRO shall:
1. Not exceed 20 days, if issued by an RTC
or MTC;
2. Not exceed 60 days, if issued by the CA
or a member thereof;
3. Until further orders, if issued by the SC.

f) TRO is automatically vacated upon expiration of
the period and without granting of preliminary
injunction;
g) Effectivity is not extendible without need of any
judicial declaration to that effect;
h) No court shall have authority to extend or renew
the same on the same ground for which it was
issued.
(3) PRELIMINARY INJUNCTION
a) Hearing and prior notice to the party sought to
be enjoined;
b) If application is included in initiatory pleading:
1. Notice of raffle shall be preceded, or
contemporaneously accompanied, by
service of summons, together with a
copy of the complaint or initiatory
pleading and the applicant's affidavit
and bond, upon the adverse party in the
Philippines.
2. Raffled only after notice to and in the
presence of the adverse party or the
person to be enjoined
c) Applicant posts a bond
(4) FINAL INJUNCTION
• Note that a bond is required only in preliminary
injunctions, but is not required in TROs. After
lapse of the 20 day TRO, the court can still grant
a preliminary injunction.
• Note that irreparable injury is always a requisite
in TROs. But in the 72 hour TRO, grave injustice
must also be shown. In the 20 day TRO, the
ground is great or irreparable injury. Without a
preliminary injunction, a TRO issued by the CA
expires without necessity of court action.
ð Only SC ca issue a Status Quo Order
RECEIVERSHIP (RULE 59)
ð Can be applied even judgment is final and executory
ð Receivership is a provisional remedy wherein the
court appoints a representative to preserve,
administer, dispose of and prevent the loss or
dissipation of the real or personal property during the
pendency of an action.
ð It may be the principal action itself or a mere
provisional remedy; it can be availed of even after the
judgment has become final and executory as it may
be applied for to aid execution or carry judgment into
effect.
CASES WHEN RECEIVER MAY BE APPOINTED
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Upon a verified application, one or more receivers of the
property subject of the action or proceeding may be
appointed by the court where the action is pending or by
the Court of Appeals or by the Supreme Court, or a
member thereof, in the following cases:
1. The party applying for the appointment of a
receiver has an interest in the property or fund
which is the subject of the action or proceeding,
and that such property or fund is in danger of
being lost, or materially injured unless a receiver
be appointed to administer and preserve it;
2. In an action by the mortgagee for the foreclosure
of a mortgage that the property is in danger of
being wasted or dissipated or materially injured,
and that its value is probably insufficient to
discharge the mortgage debt, or that the parties
have so stipulated in the contract of mortgage;
3. After judgment, to preserve the property during
the pendency of an appeal, or to dispose of it
according to the judgment, or to aid execution
when the execution has been returned unsatisfied
or the judgment obligor refuses to apply his
property in satisfaction of the judgment, or
otherwise to carry the judgment into effect;
4. Whenever in other cases it appears that the
appointment of a receiver is the most convenient
and feasible means of preserving, administering,
or disposing of the property in litigation.
REQUISITES
1) Verified application;
2) Appointed by the court where the action is pending,
or by the CA or by the SC, or a member thereof;
ð During the pendency of an appeal, the appellate
court may allow an application for the
appointment of a receiver to be filed in and
decided by the court of origin and the receiver
appointed to be subject to the control of said
court.
3) Applicant’s bond conditioned on paying the adverse
party all damages he may sustain by the appointment
of the receiver in case the appointment is without
sufficient cause;
4) Receiver takes his oath and files his bond.
REQUIREMENTS BEFORE ISSUANCE OF AN
ORDER
1) Before issuing the order appointing a receiver the
court shall require the applicant to file a bond
executed to the party against whom the application is
presented, in an amount to be fixed by the court, to
the effect that the applicant will pay such party all
damages he may sustain by reason of the
appointment of such receiver in case the applicant
shall have procured such appointment without
sufficient cause; and

2) The court may, in its discretion, at any time after the
appointment, require an additional bond as further
security for such damages.
GENERAL POWERS OF A RECEIVER
1) To bring and defend, in such capacity, actions in his
own name
2) To take and keep possession of the property in
controversy
3) To receive rents
4) To collect debts due to himself as receiver or to the
fund, property, estate, person, or corporation of
which he is the receiver
5) To compound for and compromise the same
6) To make transfer
7) To pay outstanding debts
8) To divide the money and other property that shall
remain among the persons legally entitled to receive
the same
9) To do such acts respecting the property as the court
may authorize.
10) However, funds in the hands of a receiver may be
invested only by order of the court upon the written
consent of all the parties to the action. No action may
be filed by or against a receiver without leave of the
court which appointed him.
TWO (2) KINDS OF BONDS
1) Applicant’s Bond (for appointment of receiver) – To
pay the damages the adverse party may sustain by
reason of appointment of receiver; and
2) Receiver’s Bond (of the appointed receiver, aside
from oath) – To answer for receiver’s faithful
discharge of his duties.
3) Counter Bond
TERMINATION OF RECEIVERSHIP
Whenever the court, motu proprio or on motion of either
party, shall determine that the necessity for a receiver no
longer exists, it shall, after due notice to all interested
parties and hearing, settle the accounts of the receiver,
direct the delivery of the funds and other property in his
possession to the person adjudged to be entitled to receive
them, and order the discharge of the receiver from further
duty as such.
The court shall allow the receiver such reasonable
compensation as the circumstances of the case warrant, to
be taxed as costs against the defeated party, or
apportioned, as justice requires.
Receivership shall also be terminated when:
a) its continuance is not justified by the facts and
circumstances of the case; or
b) court is convinced that the powers are abused.
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REPLEVIN (RULE 60)
It is a proceeding by which the owner or one who has a
general or special property in the thing taken or detained
seeks to recover possession in specie, the recovery of
damages being only incidental.
Replevin may be a main action or a provisional remedy.
As a principal action its ultimate goal is to recover
personal property capable of manual delivery wrongfully
detained by a person. Used in this sense, it is a suit in
itself.
It is a provisional remedy in the nature of possessory
action and the applicant who seeks immediate possession
of the property involved need not be the holder of the
legal title thereto. It is sufficient that he is entitled to
possession thereof.
WHEN MAY WRIT BE ISSUED
a) The provisional remedy of replevin can only be
applied for before answer.
b) A party praying for the recovery of possession of
personal property may, at the commencement of the
action or at any time before answer, apply for an
order for the delivery of such property to him.
REQUISITES
The applicant must show by his own affidavit or that of
some other person who personally knows the facts:
1) A party praying for the provisional remedy must
file an application for a writ of replevin. His
application must be filed at the commencement
of the action or at any time before the defendant
answers, and must contain an affidavit
particularly describing the property to which he
entitled of possession.
2) The affidavit must state that the property is
wrongfully detained by the adverse party,
alleging therein the cause of the detention. It
must also state that the property has not been
destrained or taken for tax assessment or a fine
pursuant to law, or seized under a writ of
execution or preliminary attachment, or
otherwise placed in custodia legis. If it has been
seized, then the affidavit must state that it is
exempt from such seizure or custody.
3) The affidavit must state the actual market value
of the property; and
4) The applicant must give a bond, executed to the
adverse party and double the value of the
property.
AFFIDAVIT AND BOND; REDELIVERY BOND

Affidavit, alleging:
a) That the applicant is the owner of property
claimed, describing it or entitled to its possession;
b) That the property is wrongfully detained by the
adverse party, alleging cause of its detention;
c) That the property has not been distrained or
taken for tax assessment or fine or under writ of
execution/attachment or placed under custodia
legis or if seized, that it is exempt or should be
released; and
d) The actual market value of the property.
Bond, which must be double the value of property, to
answer for the return of property if adjudged and pay for
such sum as he may recover from the applicant.
It is required that the redelivery bond be filed within the
period of 5 days after the taking of the property. The rule
is MANDATORY.
SHERIFF’S DUTY IN THE IMPLEMENTATION OF
THE WRIT; WHEN PROPERTY IS CLAIMED BY
THIRD PARTY
Upon receiving such order, the sheriff must serve a copy
on the adverse party, together with a copy of the
application, affidavit and bond, and must take the
property and retain it in his custody.
If the property be concealed in a building or enclosure,
the sheriff must demand its delivery, and if it be not
delivered, he must cause the building or enclosure to be
broken open and take the property into his possession.
If within five (5) days after the taking of the property by
the sheriff, the adverse party does not object to the
sufficiency of the bond or if the adverse party so objects
and the court affirms its approval of the applicant's bond
or approves a new bond, or if the adverse party requires
the return of the property but his bond is objected to and
found insufficient and he does not file an approved bond,
the property shall be delivered to the applicant.
If for any reason the property is not delivered to the
applicant, the sheriff must return it to the adverse party.
A 3rd party claimant may vindicate his claim to the
property, and the applicant may claim damages against
such 3rd party, in the same or separate action.
A claim on the indemnity bond should be filed within 120
days from posting of such bond.
If the property taken is claimed by a third person and
make an affidavit of his title or right to the possession
thereof and serves such affidavit upon the sheriff while
the latter has possession of the property and a copy
thereof upon the applicant, the sheriff shall not be bound
to keep the property under replevin or deliver it to the
2011  Bar  Examinations   82  
BERT  –  NOTES  in  REMEDIAL  LAW  
applicant UNLESS the applicant on demand of said
sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in the sum not less
than the value of the property.
The sheriff shall not be liable for damages, for the taking
or keeping of such property, to any such third-party
claimant if such bond shall be filed.
SPECIAL CIVIL ACTIONS (Rules 62 – 71)
NATURE OF SPECIAL CIVIL ACTIONS
Special civil actions are basically ordinary civil
proceedings; what makes them special are the distinct
peculiarities inherent in their very nature not found in
ordinary civil actions.
They are actions in themselves, but possessing special
matters that required special procedures. For this reason,
these proceedings are classified as special civil actions.
Sec. 1, Rule 62 provides that rules provided for ordinary
civil actions are applicable in special civil proceedings,
which are not inconsistent with or may serve to
supplement the provisions of the rules relating to such
special civil actions.
ORDINARY CIVIL ACTIONS VERSUS SPECIAL
CIVIL ACTIONS
Although both types of actions are governed by the rules
for ordinary civil actions, there are certain rules that are
applicable only to specific special civil actions. The fact
that an action is subject to special rules other than those
applicable to ordinary civil actions is what makes a civil
action special.
An ordinary civil action must be based on a CAUSE OF
ACTION. This means that the defendant must have
performed an act or omitted to do an act in violation of
the rights of another. These definitions do not fit the
requirements of a cause of action in certain special civil
actions.
ü The cause of action as defined and required of an
ordinary civil action finds no application to the
special civil action of declaratory relief. It finds no
application also in a complaint for interpleader. In
this action, the plaintiff may file a complaint even if
he has sustained no actual transgression of his rights.
In fact, he actually has no interest in the subject
matter of the action. This is not so in an ordinary
civil action.