1|P age NOTES IN CIVIL PROCEDURE II Bem Jamison

PROVISIONAL REMEDIES IN CRIMINAL CASES

PROVISIONAL REMEDIES When the civil action is properly instituted in the
- Are temporary, auxiliary, and ancillary remedies criminal action, the property of the accused may be
available to a litigant while the main action is attached in the following cases:
pending or until a final disposition of the matter a. When the accused is about to abscond from
in litigation is made. the Philippines;
- Dependent for their application upon the b. When the criminal action is based on a clam
existence of a principal action. for money or property embezzled or
- They are provisional (they constitute temporary fraudulently misapplied or converted for
measures availed of during the pendency of the the use of the accused who is a public
main action) and ancillary (they are merely officer, officer of a corporation, attorney,
incidents and are dependent upon the result of factor, broker, agent or clerk, in the course
the main action. of his employment as such or by any other
- Note: When the main action is dismissed, the person in a fiduciary capacity, or for a wilful
provisional remedy is also dissolved. violation of duty;
c. When the accused has concealed, removed,
PURPOSE OF PROVISIONAL REMEDIES or disposed of his property, or is about to
a. To preserve or protect their rights or do so; and
interests while the main action is pending d. When the accused resides outside og the
b. To secure the judgment Philippines;
c. To preserve the status quo
d. To preserve the subject matter of the action PRELIMINARY ATTACHMENT
Provisional (RULE 57)
Example Main Action
Remedy
To prevent Action for sum Preliminary ATTACHMENT
debtor from of money attachment - A provisional remedy by which the property of
disposing his an adverse party is taken into legal custody,
properties either at the commencement of an action or at
To prevent Foreclosure of Receivership any time thereafter, as a security for the
further mortgage satisfaction of any judgment that may be
deterioration of recovered by the plaintiff or any proper party.
property under
mortgage PRELIMINARY ATTACHMENT
To regain Forcible Entry Writ of - Resorted to before the finality of the judgment
possession of Preliminary to secure the property of the adverse party and
land from an Mandatory to prevent its dissipation.
intruder Injunction - Cannot be the subject of a separate action
independent of the principal action because the
To request Action for Support
attachment is only an incident of such action
support Support pendente lite
To recover Recovery of Replevin
NOTA BENE:
possession of possession of
- The grant of Preliminary Attachment is
personal personal
discretionary and is not a matter or right.
property property
- Must be resorted to only when necessary and a
last remedy.
COURT WITH JURISDICTION
- Must be strictly construed in favour of the
- The court which has jurisdiction over the main
defending party.
action
WHO MAY AVAIL
KINDS OF PROVISIONAL REMEDIES
- Plaintiff or any proper party (counter-claimant,
a. Preliminary Attachment
cross-claimant, third-party plaintiff)
b. Preliminary Injunction
c. Receivership
PURPOSE OF PRELIMINARY ATTACHMENT
d. Replevin
(Philippine Commercial Int’l Bank vs. Alejandro)
e. Support pendente lite
1. To seize the property of the debtor in
f. Other interim reliefs provided for in other
advance of final judgment and to hold it for
rules and laws
purposes of satisfying said judgment; or
2. To acquire jurisdiction over the action by
*Deposit as a provisional remedy in the exercise of
actual or constructive seizure of the
equity jurisdiction – exercise of equity jurisdiction in
property in those instances where personal
this case is to prevent unjust enrichment and to
or substituted service of summons of the
ensure restitution.
defendant cannot be effected

Reference: Cabarles Notes

 2|P age NOTES IN CIVIL PROCEDURE II
STAGES OF THE PROCEEDINGS
a. When applied for at the commencement of the
action
- The application may be incorporated in a
verified complaint alleging all grounds relied
upon and complying with all the requisites for
the grant of the application
- Will result in an ex parte issuance of the writ of
preliminary attachment
b. When applied for any time before entry of
judgment
- May be made after the service of summons or at
any stage of the proceedings, even after
judgment, but before its entry.
- Would entail notice to the defendant
KINDS OF ATTACHMENTS
1. Preliminary Attachment
- Is one issued at the commencement of action or
at any time before the entry of the judgment as
security to the satisfaction of any judgment that
may be recovered.
- Here, the court takes custody of the property
pending litigation
2. Garnishment
- Is a kind of attachment in which the attaching
party seeks to subject his claim either the
property of the adverse party, in the hands of a
third person called the garnishee, or the money
which said third person owes the adverse party.
- Does not involve the actual seizure of the
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.
- Example: Deposit in a bank; dividends due of the
defendant in the corporation; wages held by the
employer; royalties due to the defendant in the
hands of the publisher.
- How jurisdiction over the garnishee is acquired:
By the mere service upon him of the copy of the
writ of garnishment with a notice that his debt
to the defendant under his control or possession
is attached pursuant to the writ. Service of
summons is not required to bind the garnishee;
garnishee need not be impleaded as a party to
the case.
- Duty of the garnishee: Required to hold the
property or the funds in his hands during the
pendency of the litigation and at the
appropriate time, to deliver the same not to the
judgment debtor/defendant but to the new
creditor, the judgment obligee/creditor.
3. Levy on execution to satisfy a final judgment
- Is the process employed after the judgment has
become executory by which the property of the
judgment obligor is set aside and taken into the
custody of the court before the sale of the
property on execution for the satisfaction of a
final judgment.
Reference: Cabarles Notes
Bem Jamison
GROUNDS FOR THE ISSUANCE OF A WRIT OF
PRELIMINARY ATTACHMENT
1. Recovery of a specified amount of money or
damages (other than moral and exemplary);
- Main action: Action for sum of money or
damages
- Reason: Writ of preliminary attachment cannot
be issued for moral and exemplary damages and
other un-liquidated and contingent claims as
amount of such of such damages is left to the
discretion of the court.
- NOTA BENE: For the application of the writ of
attachment, it is insufficient to show that the
party against whom the writ is sought is about
to depart from the PH. It must also show that
such departure is “with the intent to defraud
the creditor”.
2. Action for money or property embezzled or
fraudulently misapplied or converted to his
own use
- Main action: Action for recovery of money or
property
- There is no need for a showing that the
defendant is concealing, removing or disposing
of his property.
- It is the character of the office or the duty of the
defendant that is to be considered when the
acts, giving rise to the cause of action, are
performed.
3. Recovery of property unjustly or fraudulently
taken
- Main action: Action for recovery of possession
of property
- There must be showing that the defendant has
concealed, removed or disposed of the
property.
4. Fraud in contracting thed debt or incurring an
obligation
- Basis of the application:
a. Causal Fraud (Dolo Causante) – fraud
used to induce another to enter into
the contract
b. Incidental Fraud (Dolo Incidente) –
fraud employed in the fulfilment of his
obligation or after the obligation has
been contracted.
- The circumstances constituting the fraud must
be stated with particularity.
5. Removal or disposal of property with intent to
defraud
- Elements:
a. A party has removed or disposed of his
property or is about to do so; and
b. It must be with the intent to defraud
the creditor.
 3|P age NOTES IN CIVIL PROCEDURE II
6. Action against a party who does not reside and
is not found in the Philippines, or on whom
summons may be served by publication.
- Includes persons who may be residents but on
whom summons by publication may be served:
a. Resident defendants whose identity or
whereabouts are unknown.
b. Resident defendants who are
temporarily out of the country.
REQUISITES FOR THE ISSUANCE OF AN ORDER OF
PRELIMINARY ATTACHMENT
1. Requisite Affidavit
- Need not be executed by the applicant. It may
be executed by some other person who
personally knows the facts
2. Attachment Bond
- In the amount fixed by the court and executed
to the adverse party.
- Purpose: Conditioned upon the payment of all
costs which the adverse party may be adjudged
as entitled to and all damages which he may
sustain by reason of the attachment, if it shall
finally be adjudged that the party applying for
the attachment was not entitled thereto.
Note: Hearing not required because the writ may be
issued ex parte.
CONTENTS OF THE AFFIDAVIT
1. That a sufficient cause of action exists;
2. That the case is one of those mentioned in Sec.
1 Rule 57;
3. That there is no other sufficient security for the
claim sought to be enforced by the action; and
4. That the amount due to the applicant, or the
value of the property the possession of which he
is entitled to recover is as much as the sum for
which the order is grated above all legal
counterclaims.
Failure to allege requisites: Renders the writ of
preliminary attachment fatally defective and the
judge issuing it is deemed to have acted in excess of
his jurisdiction.
EFFECT OF EXISTENCE OF MORTGAGE
- Writ will not be issued unless it is shown that
the security is insufficient to cover the claim.
ISSUANCE OF THE ORDER
1. Upon motion and notice and hearing by the
court in which the action is pending
- May even be issued on appeal since judgment is
not yet final and executory
2. Ex parte and even before the service of
summons
- Rationale: It is possible that during the course of
the hearing, the party against whom is sought
may dispose of his property or abscond before
the writ is issed.
- In this case, the writ may not yet be enforced
and validly implemented unless preceded or
simultaneously accompanied by service of
summons
Reference: Cabarles Notes
Bem Jamison
MOTION TO QUASH WRIT
- May be granted with notice to the applicant and
upon hearing.
STAGES IN THE GRANT OF PRELIMINARY
ATTACHMENT
1. The court issues the order granting the
application
2. The writ of attachment is issued pursuant to
the order granting the writ
3. The writ is implemented
Note:
- Jurisdiction over the person of the defendant
must be acquired in the third stage
(implementation of the writ). Hence the rule
provides: “No levy on attachment pursuant to
the writ of preliminary attachment shall be
enforced unless it is preceded, or
contemporaneously accompanied, by (1) service
of summons, together with (2) a copy of the
complaint, (3) the application for attachment,
the (4) applicant's affidavit and bond, and the
(5) order and writ of attachment, on the
defendant within the Philippines.”
WHEN REQUIREMENT OF PRIOR OR
CONTEMPORANEOUS SERVICE SHALL NOT APPLY
1. The summons could not be served personally
despite diligent efforts;
2. The summons could not be served by substitute
service despite diligent efforts;
3. The defendant is a resident of the Philippines
who is temporarily out of the country;
4. The defendant is a non-resident of the
Philippines;
5. The action is one in rem or quasi in rem;
DUTIES OF THE SHERIFF
1. The sheriff is required to proceed with the
attachment without delay and with all
reasonable diligence unless the party against
whom the writ is directed makes a deposit with
the court from which the writ is issued, or gives
a counter-bond.
2. The sheriff enforcing the writ is required to
attach the property subject of the writ to await
judgment and execution in the action.
- He must attach only so much of the property
located in the PH as may be sufficient to satisfy
the applicant’s demand
3. The sheriff is precluded from attaching ay
property exempt from execution.
4. After enforcing the writ, the sheriff must
likewise without delay make a return thereon
to the court from which the writ issued, with a
full statement of his proceedings under the writ
and a complete inventory of the property
attached, together with any counter-bond given
by the party against whom attachment is issued,
and serve copies thereof on the applicant.
 4|P age NOTES IN CIVIL PROCEDURE II
ATTACHMENT OF REAL PROPERTY
1. Sheriff shall file with the ROD the following:
a. Copy of the order of attachment;
b. Description of the property attached; and
c. Notice that the property subject of the writ
is attached.
2. Shall leave copies of the aforementioned
documents with the occupant of the property,
if any, or with such other person or his agent if
found within the province.
ATTACHMENT OF PERSONAL PROPERTY CAPABLE
OF MANUAL DELIVERY
1. Sheriff shall take the property and safely keep
it in his custody; and
2. Shall issue the corresponding receipt for the
property taken.
ATTACHMENT OF STCOCKS OR SHARES OR
INTEREST THEREIN
- Shall be attached by leaving with the President
or Managing Agent thereof the following:
a. Copy of the writ; and
b. Notice stating that the stock or interest of
the party against whom the attachment is
issued is attached in pursuance to such writ.
ATTACHMENT OF BAK DEPOSITS OR SIMILAR
PROPERTY NOT CAPABLE OF MANUAL DELIVERY
(GARNISHMENT)
- Sheriff shall leave with the person owing such
debts, or having in his possession or under his
control such credits or other personal property,
or with his agent:**
a. Copy of the writ; and
b. Notice that such debts, credits, and other
personal property are attached in
pursuance of such writ.
**Effect: Such person shall be liable to the applicant
for the amount of the debt, credits or property. The
liability continues until the attachment is
discharged or until the judgment recovered by the
applicant is satisfied. The liability shall cease if the
property subject of the writ is delivered or
transferred or the debts or credits are paid to the
clerk, sheriff or other proper officer of the court.
ATTACHMENT OF INTEREST IN PROPERTY
BELONGING TO THE ESTATE OF THE DECEDENT
1. The sheriff shall serve the executor,
administrator or other personal representative
of the decedent the following:
a. Copy of the writ; and
b. Notice that said interest is attached.
2. Copy of such writ and notice shall also be filed
in the office of the clerk of the court in which
said estate is being settled.
3. The same shall also be served upon the heir,
legatee or devisee concerned.
Effect: Representative is obligated to report the
attachment to the court when a petition for
distribution is filed. The property attached shall be
delivered to the sheriff, subject to the claim of the
Reference: Cabarles Notes
Bem Jamison
heir, legatee or devisee or any person claiming under
him.
ATTACHMENT OF PROPERTY IN CUSTODIA LEGIS
- Sheriff shall file with the proper court or quasi-
judicial agency the following:
a. Copy of the writ of attachment; and
b. Notice of the attachment served upon the c
custodian of the property.
- Merely operates as a lien and does not mean
that the attaching court will wrest custody of
the property from another court.
- Will create priority in the liens such that the
first attachment will have priority over
subsequent attachments.
POWER OF COURT TO EXAMINE
- The court is empowered to examine under oath
the party whose property is attached for the
purpose of giving information respecting his
property.
SALE OF PROPERTY AFTER LEVY ON ATTACHMENT
AND BEFORE ENTRY OF JUDGMENT
- General Rule: The property attached cannot be
sold during the pendency of the claim.
- Exceptions: Upon hearing with notice to both
parties, may be ordered to be sold at public
auction with proceeds to be deposited in court
to await the judgment in the action
1. If attached property is perishable
2. If the court determines that doing so will
serve the interest of both parties
REMEDY OF THIRD PERSON WHOSE PROPERTY IS
ATTACHED
Below remedies are cumulative and any one of these
may be resorted to without availing of other
remedies:
1. TERCERIA
- Done by making an affidavit of his title thereto
or right to the possession thereof, stating the
grounds of such right or title.
- The affidavit must be served upon the sheriff
(while he has possession of the attached
property) and the attaching party.
- Effect of Terceria: The sheriff shall not be bound
to keep the property.
- Remedy of Attaching Party: The attaching party
files a bond approved by the court.
- Effect of the bond: The sheriff shall not be liable
for the taking or keeping of the property.
- Purpose of the bond: To indemnify the sheriff
against any claim by the intervenor to the
property seized or for damages arising from
such seizure, which the sheriff was making and
for which the sheriff was directly responsible to
third party.
 5|P age NOTES IN CIVIL PROCEDURE II
2. SUMMARY HEARING
- The court shall order a summary hearing upon
application of a third person thru a motion to
set aside the levy on attachment, for the
purpose of determining whether the sheriff has
acted rightly or wrongly in the execution of the
writ of attachment.
- In case of erroneous levy by the sheriff: The
court may order the sheriff to return the
property to the third person.
3. MOTION FOR INTERVENTION
- May be filed provided no judgment has yet been
rendered in the action.
4. SEPARATE ACTION TO NULLIFY THE LEVY WITH
DAMAGES
- In case of unlawful levy and seizure
DISCHARGE OF ATTACHMENT
A writ of attachment already enforced may be
discharged in the following ways:
1. By filing a motion to discharge the attachment
and making a deposit or counter-bond.
- The motion shall be filed by the party whose
property has been attached or the person
appearing on his behalf
- The movant shall also make a cash deposit or
file a counter-bond executed to the attaching
party with the clerk of court where the
application is made in the amount equal to that
fixed by court in the order of attachment,
exclusive of cost.
- Purpose of the deposit or counter-bond: To
secure payment of any judgment that the
attaching party may recover in the action.
2. By filing a motion to set aside or discharge the
attachment on other grounds without need for
filing a counter-bond.
- May be filed before levy, after levy, or even
after the release of the attached property
- The motion shall be based on any of the
following grounds:
a. The attachment was improperly or
irregularly issued or enforced;
b. The bond is insufficient;
c. The attachment is excessive (discharge
shall be limited to the excess);
d. The property is exempt from execution and
as such, is also exempt from preliminary
attachment.
NOTE: A discharge of attachment must be made
only upon notice and after hearing. Ex parte
discharge is not allowed.
EFFECT OF DISCHARGE OF THE ATTACHMENT
- The property attached or the proceeds of any
sale thereof shall be delivered to the party
making the deposit or giving the counter-bond,
or to the person appearing on his behalf.
- The deposit or counter-bond shall stand in the
place of the property attached.
Reference: Cabarles Notes
Bem Jamison
DAMAGES FOR A WRONGFUL ATTACHMENT
- Available even to the party who loses the main
case but is able to establish a right to damages
by reason of improper, irregular, or excessive
attachment.
- Actual damages, unless attachment was not
merely wrongful but also malicious, the
attachment defendant may also recover moral
and exemplary damages.
- Recovery of damages shall be in the same
action and included in the judgment of the main
case.
- How filed:
1. The application for damages must be filed
before the trial or before appeal is
perfected or before the judgment becomes
executory.
2. There must be notice to the attaching party
and his surety/sureties;
3. The application must set forth the facts
showing the applicant’s right to damages as
well as the amount thereof;
4. A hearing is required before awarding
damages.
- If case is on appeal and judgment of appellate
court is favourable to the party against whom
the attachment is issued: He must claim
damages during the pendency of the appeal and
before the judgment of the appellate court
becomes executory.
- If bond or deposit insufficient to cover for
damages: The party against whom the
attachment is issued may recover in the same
action from any property of the attaching party
which is not exempt from execution.
SATISFACTION OF THE JUDGMENT OUT OF THE
PROPERTY ATTACHED
- The procedure for satisfying the judgment:
1. Payment to the judgment obligee the
proceeds of all sales or perishable or other
property sold in pursuance of the order of
the court, or so much as shall be necessary
to satisfy the judgment;
2. If any balance remains due, by selling so
much of the property, real or personal, as
may be necessary to satisfy the balance, if
enough for that purpose remain in the
sheriff’s hands, or in those of the clerk of
court; and
3. By collecting from all persons having in their
possession credits belonging to the
judgment obligor, or owing debts to the
latter, the amount of such credits or debts
as determined by the court in the action
and as stated in the judgment, and paying
the proceeds of such collection over to the
judgment obligee.
- Counter-bond: Recovery may also be made by
requiring the surety on the bond to pay the
judgment creditor upon demand of the amount
due under the judgment, after notice and
summary action in the same action.
 6|P age NOTES IN CIVIL PROCEDURE II Bem Jamison

- Deposit: Shall be applied under the direction of

the court to the satisfaction of the judgment.
a. In case of surplus, balance shall be
refunded to the depositor or his assignee.
b. If judgment is in favour of the party
whom attachment was issued, the whole
sum deposited must be refunded to him or
his assignee.

RETURN OF SHERIFF
- The sheriff shall make a return to the court, in
writing, of his proceedings and furnish the
parties with copies thereof.
- If any balance shall remain due (after realizing
attached properties, including proceeds of debts
and credits): The sheriff must proceed to collect
such balance as upon ordinary execution.
- In case of surplus (after judgment is paid): The
sheriff must return to the judgment obligor the
attached property remaining in his hands, and
any proceeds of the sale of the property
attached not applied to the judgment.

RULE IF JUDGMENT IS RENDERED AGAINST THE

ATTACHING PARTY
- All the proceeds of sales and money collected or
received by the sheriff, under the order of
attachment, and all property attached
remaining in the sheriff’s hands, shall be
delivered to the party against whom
attachment was issued and the order of
attachment is discharged.

Reference: Cabarles Notes