CHAPTER 40  by the filing of the complaint and the payment of all
PRELIMINARY ATTACHMENT requisite docket and other fees, the plaintiff may apply
DEFINITION
Writ of preliminary attachment – a provisional remedy issued upon
order of the court where an action is pending to be levied upon the
property or properties of the defendant therein, the same to be held
thereafter by the sheriff as security for the satisfaction of whatever
judgment might be secured in said action by the attaching creditor
against the defendant.
GROUNDS (SEC.1, RULE 57)
Section 1. Grounds upon which attachment may issue. – 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:
(6 grounds)
a. 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 quasidelict
against a party who is about to depart from the Philippines with
intent to defraud his creditors;
b. 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;
c. In an action to recover the possession of property unjustly or
fraudulently taken, detained or converted, when the property,
or any part thereof, has been concealed, removed, or disposed
of to prevent its being found or taken by the applicant or an
authorized person;
d. 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 is brought, or in the performance thereof;
e. 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
f. 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.
WHEN AVAILED
The application or prayer for the issuance of a writ of preliminary
attachment may be availed of:
 at the commencement of the action or
 at any time before entry of judgment.
1. Application made at the commencement of the action – by
including in the initiatory pleading asserting the claim the
prayer of the plaintiff for the issuance of the writ.
 a writ of preliminary attachment may issue even before
summons is served upon the defendant
and obtain a writ of preliminary attachment upon the
fulfillment of the pertinent requisites laid down by law
 by incorporating the application for attachment in the
complaint or other appropriate pleading, the court may
issue the writ ex-parte at the commencement of the action
if it finds the application sufficient in form and substance
 the court may validly issue the writ even before it acquires
jurisdiction over the person of the defendant
2. Application by motion filed at any time before the entry of
judgment.
 The application for such remedy may be done either before or
after service of summons on the defendant. However, the writ
cannot bind and affect the defendant until jurisdiction over his
or her person is eventually obtained.
o Therefore, it is required that when the proper officer
commences implementation of the writ of
attachment, service of summons should be
simultaneously or contemporaneously made.
Requisites in applying for a writ of preliminary attachment
The applicant or some other person who personally knows the facts
must execute an Affidavit of Merit which shall be attached to the
pleading or motion stating that:
1. a sufficient cause of action exists;
2. the case is one of those mentioned in Section 1, Rule 57;
3. there is no other sufficient security for the claim sought to be
enforced by the action; and
4. the amount due to the applicant, or the value of the property
the possession of which he or she is entitled to recover, is as
much as the sum for which the order would be granted above
all legal counterclaims.
ACTION BY THE COURT
 The court may issue an order of attachment either ex parte or
upon motion with notice of hearing only when these allegations
appear in the affidavit which must be duly filed in court.
 It may be issued:
1. by the court in which the action is pending or
2. by the Court of Appeals or
3. the Supreme Court.
 In issuing the order of attachment ex-parte – no notice to the
adverse party or hearing of the application is required inasmuch
as the time which the hearing will take could be enough to
enable the defendant to abscond or dispose of his or her
property before a writ of attachment issues.
Fraud
 For preliminary attachment to issue on ground of fraud, the
applicant must sufficiently show the factual circumstances of
the alleged fraud.
o This is due to the settled rule that fraudulent intent
cannot be inferred from the debtor's mere non-
payment of the debt or failure to comply with his or
her obligation.
 However, fraud need not be proved by direct evidence.
1|Page
 o It can be inferred from attendant circumstances
involved in the transaction in question.
Watercraft Ventura Corp. vs. Wolfe
Watercraft filed a complaint for collection of sum of money with damages
against Wolfe with a prayer for the issuance of a Writ of Preliminary
Attachment for his failure to pay the storage fees for his boat. Finding the
application for writ of preliminary attachment sufficient in form and
substance, the Regional Trial Court granted the same. As a result, Wolfe's
two (2) vehicles were levied upon and his accounts at the bank were also
garnished.
Wolfe filed a motion to discharge the writ of attachment citing that
Watercraft failed to show the existence of fraud. His motion and
subsequent motion for reconsideration were both denied. Hence, he filed
a petition for certiorari before the Court of Appeals.
The Court of Appeals granted Wolfe's petition and declared that the writ
of attachment is null and void. It directed Watercraft to return the
attached vehicles. In deciding the case, the Court of Appeals cited the
case of Cosiquien vs. Court of Appeals where it was held that:
“Where a judge issues a fatally defective writ of preliminary attachment
based on an affidavit which failed to allege the requisites prescribed for
the issuance of the writ of preliminary attachment, renders the writ of
preliminary attachment issued against the property of the defendant
fatally defective: The judge issuing it is deemed to have acted in excess
of jurisdiction.
In fact, the defect cannot even be cured by amendment. Since the
attachment is a harsh and rigorous remedy which exposed the debtor to
humiliation and annoyance, the rule authorizing its issuance must be
strictly construed in favor of defendant. It is the duty of the court before
issuing the Writ to ensure that all the requisites of the law have been
complied with. Otherwise, a judge acquires no jurisdiction to issue the
writ."
In this case, the Affidavit of Merit executed by the representative of
Watercraft failed to show fraudulent intent on the part of Wolfe to
defraud the company. It merely enumerated the circumstances tending
to show the alleged possibility of Wolfe's flight from the country. As
further discussed in the Cosiquien case:
“When a judge issues a writ of preliminary attachment ex- parte, it is
incumbent on him, upon proper challenge of his order to determine
whether or not the same was improvidently issued. If the party against
whom the writ is prayed for squarely controverts the allegation of
fraud, it is incumbent on the applicant to prove his allegation. The
burden of proving that there indeed was fraud lies with the party
making such allegation, x x x In this jurisdiction, fraud is never
presumed.”
Dissatisfied with this ruling, Watercraft filed a petition for review on
certiorari before the Supreme Court. In its petition, Watercraft insists that
the Affidavit of Merit sufficiently averred with particularity the
circumstances constituting fraud. It contended that it complied with the
requisite of submitting an affidavit of merit and bond and that there is no
requirement that evidence must first be offered before the court can
grant such writ. The Supreme Court, however, found that the petition
lacks merit and held that:
“A writ of preliminary attachment is defined as a provisional remedy
issued upon order of the court where an action is pending to be levied
upon the property or properties of the defendant therein, the same to
be held thereafter by the sheriff as security for the satisfaction of
whatever judgment that might be secured in the said action by the
attaching creditor against the defendant.
However, it should be resorted to only when necessary and as a last
remedy because it exposes the debtor to humiliation and annoyance. It
must be granted only on concrete and specific grounds and not merely
on general averments quoting the words of the rules. Since attachment
is harsh, extraordinary, and summary in nature, the rules on the
application of a writ of attachment must be strictly construed in favor of
the defendant.”
It explained that the mere filing of an affidavit reciting the facts required
by Section 3, Rule 57, is not enough to compel the judge to grant the writ
of preliminary attachment. Whether or not the affidavit sufficiently
established facts therein stated is a question to be determined by the
court in the exercise of its discretion. The sufficiency or insufficiency of an
affidavit depends upon the amount of credit given it by the judge, and its
acceptance or rejection, upon his sound discretion.
Watercraft failed to state with particularity the circumstances constituting
fraud. Mere general averments render the writ defective and the court
that ordered its issuance acted with grave abuse of discretion amounting
to excess of jurisdiction.
ORDER OF ATTACHMENT
 The order of attachment shall require the sheriff to attach so
much of the property in the Philippines of the party against
whom it is issued which are not exempt from execution but
only to the extent as may be sufficient to satisfy the applicant's
demand.
 Several writs may be issued by the court at the same time to
sheriffs of courts of different jurisdiction.
ATTACHMENT BOND
 No order of attachment may be issued unless the applicant
makes a deposit or gives a bond in an amount equal to that
fixed in the order.
o Such amount of the required bond may be the
amount sufficient to satisfy the applicant's demand or
the value of the property to be attached as stated in
the application, exclusive of costs.
 The attachment bond must be filed with, and approved by, the
court.
o As a rule, the attachment bond must be accompanied
by a clearance from the Supreme Court to show that
the bonding company is qualified to transact business
with the court.
o Thus, where the clearance issued indicates that the
bond offered by such company is acceptable only in
certain courts, it should not be accepted by a court
not included in such list.
 Condition of the Bond
o it will pay all the costs which may be adjudged to the
adverse party and all damages which he or she may
sustain by reason of the attachment if the court will
finally adjudge that the applicant was not entitled
thereto
o In the event of an improper, irregular or excessive
attachment, the party against whom the attachment
was issued may apply for damages on such account.
The application must be filed:
 before the trial or
 before appeal is perfected or
 before the judgment becomes executory.
It also requires due notice to the attaching party and
his or her surety or sureties setting forth the facts
2|Page
 showing his or her right to damages and the amount
thereof.
Condition of the bond (continuation…)
o Such damages may be awarded only after proper hearing
and shall be included in the judgment on the main case.
 If the judgment of the appellate court be
favorable to the party against whom the
attachment was issued, he or she must claim the
damages sustained during the pendency of the
appeal by filing an application in the appellate
court, with notice to the party in whose favor the
attachment was issued or his or her surety or
sureties.
 Such application must be made before
the judgment of the appellate court
becomes executory.
 The appellate court, however, may
allow such application to be heard and
decided by the trial court.
o Nothing, however, prevents the party against whom the
attachment was issued from recovering in the same action
the damages awarded to him or her from any property of
the attaching party not exempt from execution should the
bond or deposit given by the latter be insufficient or fail to
fully satisfy the award.
SERVICE AND ENFORCEMENT
 The sheriff enforcing the writ shall without delay and with all
reasonable diligence attach only so much of the property in the
Philippines of the party against whom the writ is issued, which
are not exempt from execution, as may be sufficient to satisfy
the applicant's demand to await judgment and execution in the
action.
 However, no levy on attachment shall be enforced unless it is
preceded or contemporaneously accompanied by 1) service of
summons, together with a 2) copy of the complaint, 3) the
application for attachment, 4) the Affidavit of Merit, 5) the
bond and 5) the order and writ of attachment on the defendant
within the Philippines.
o The requirement of prior or contemporaneous service
of summons, however, shall not apply where:
1. the summons could not be served
personally or by substituted service despite
diligent effort; or
2. the defendant is a resident of the
Philippines but temporarily absent
therefrom; or
3. the defendant is a non-resident of the
Philippines; or
4. the action is one in rent or quasi in rem.
SHERIFF’S RETURN
 After enforcing the writ, the sheriff must likewise without delay
make a return thereon to the court from which the writ was
issued.
 Such return shall make a full statement of his or her
proceedings under the writ and a complete inventory of the
property attached, together with any counter-bond given by
the party against whom the attachment is issued.
 A copy of said return shall be served on the applicant.
MANNER OF ATTACHMENT
Real Property
 Real property, or growing crops thereon, or any interest
therein, may be attached by filing the notice of attachment
describing the property to be attached and a copy of the order
of attachment with the registry of deeds where such property
is recorded.
 A copy of such notice and order shall also be served upon the
occupant of the property, if any, or with such other person or
his or her agent found within the province.
 Such attachment may be proceeded against the real property:
1. registered in the name of the party against whom the
attachment is issued as appearing in the record of the
registry of deeds;
2. belonging to the party against whom the attachment
is issued but does not appear in the record of the
registry of deeds of the place where the same is
located;
3. belonging to the party against whom the attachment
is issued but held by any other person;
4. belonging to the party against whom the attachment
is issued but registered in the name of any other
person.
 Where the property has been brought under the operation of
either the Land Registration Act or the Property Registration
Decree: the notice shall contain a reference to:
1. the number of the certificate of title,
2. the volume and page in the registration book where
the certificate is registered, and
3. the registered owner or owners thereof.
 The registrar of deeds must index attachments in the names of
the applicant, the adverse party, or the person by whom the
property is held or in whose name it stands in the records.
 If the attachment is not claimed on the entire area of the land
covered by the certificate of title, a description sufficiently
accurate for the identification of the land or interest to be
affected shall be included in the registration of such
attachment.
Personal Property
Personal property capable of manual delivery is attached by the
sheriff by taking and safely keeping it in his or her custody, after
issuing the corresponding receipt therefor.
1. Stocks or Shares
Stocks or shares, or an interest in stocks or shares, of any
corporation or company, are attached – by leaving with the
president or managing agent thereof, 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.
2. Debts, Credits, etc.
3|Page
Debts and credits, including bank deposits, financial interest,
royalties, commissions and other personal property not capable of
manual delivery, are attached – by leaving with the person owing
such debts, or having in his or her possession or under his or her
control, such credits or other personal property, or with his or her
agent, a copy of the writ, and notice that the debts he or she owes
to the party against whom attachment is issued, and the credits and
other personal property in his or her possession, or under his or her
control, belonging to said party, are attached in pursuance of such
writ.
3. Estate of Decedent
The interest of the party against whom attachment is issued in
property belonging to the estate of the decedent, whether as heir,
legatee, or devisee, is attached – by serving a copy of the writ and
notice that said interest is attached to the executor or administrator
or other personal representative of the decedent.
o A copy of said writ of attachment and of said notice shall
also be filed in the office of the clerk of the court in which
said estate is being settled and served upon the heir,
legatee or devisee concerned.
4. Custody of Law
If the property sought to be attached is in custodia legis, a copy of
the writ of attachment shall be filed with the proper court or quasi-
judicial agency, and the notice of the attachment shall be served
upon the custodian of such property.
5. Public Funds
Public funds are not within the reach of any garnishment or
attachment proceedings.
Disbursements of public funds must be covered by the
corresponding appropriation as required by law. The functions and
public services rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public funds from their
legitimate and specific objects as appropriated by law. Thus, even if
the State gives its consent to be sued by private parties, the
claimant's action is limited only up to the completion of the
proceedings which are anterior to the stage of execution. The power
of the courts ends when the judgment is rendered. Government
funds and properties may not be seized under writs of execution or
garnishment to satisfy such judgments by reason of this public
policy.
ACTUAL TAKING
 To constitute a valid levy of an attachment of a property
capable of manual delivery: the officer levying it must take
actual possession of the property attached as far as practicable
under the circumstances.
o He or she must put himself or herself in a position to,
and must assert and, in fact, enforce a dominion over
the property.
o Such property must be in his or her substantial
presence and possession.
 Of course, this does not mean that the attaching officer may
not, under an arrangement satisfactory to himself or herself,
put anyone in possession of the property for the purpose of
guarding it. Thus, he or she may designate a sheriff's guard for
purposes of safekeeping the attached property.
PROHIBITION
 The sheriff cannot in this way relieve himself or herself from
liability to the parties interested in said attachment.
o It does not give him or her any discretion on whether
to keep it in his or her custody or to surrender it to
the creditors.
o Thus, by depositing the attached properties in the
plaintiff's warehouse instead of placing them in
another private and independent warehouse was
held to be improper for falling short of his or her
obligation to take and safely keep the attached
properties in his or her custody.
EFFECT OF ATTACHMENT
 All persons having in their possession or under their control any
credits or other similar personal property belonging to the
party against whom attachment is issued, or owing any debts to
him or her, at the time of service upon them of the copy of the
writ of attachment and notice, shall be liable to the applicant
for the amount of such credits, debts or other similar personal
property, unless such property is delivered or transferred, or
such debts are paid, to the clerk, the sheriff, or other proper
officer of the court issuing the attachment.
 Such liability shall only cease to exist when the attachment is
discharged, or any judgment recovered by him or her is
satisfied.
 Effect to the Estate of a Decedent
o The attachment of the interest of an heir, legatee, or
devisee in the property belonging to the estate of a
decedent shall not impair the powers of the executor,
administrator, or other personal representative of the
decedent over such property for the purpose of
administration.
o Such personal representative, however, shall report
the attachment to the court when any petition for
distribution is filed, and in the order made upon such
petition, distribution may be awarded to such heir,
legatee or devisee.
o However, the property attached shall be ordered
delivered to the sheriff making the levy, subject to the
claim of such heir, legatee, or devisee, or any person
claiming under him or her.
EXAMINATION OF A PARTY
 Any person owing debts to the party whose property is
attached or having in his or her possession or under his or her
control any credit or other personal property belonging to such
party, may be required to attend before the court in which the
action is pending, or before a commissioner appointed by the
court. Such party may be examined on oath respecting the
same.
4|Page
 The party whose property is attached may also be required to
attend and be examined under oath for the purpose of giving
information respecting his or her property.
 The court may, after such examination, order personal
property capable of manual delivery belonging to him or her,
in the possession of the person so required to attend before the
court, to be delivered to the clerk of the court or the sheriff on
such terms as may be just, having reference to any lien thereon
or claim against the same, to await the judgment in the action.
STAY OF ATTACHMENT
In order to stay the enforcement of the attachment, the party
against whom the writ of attachment is issued may:
1. make a deposit with the court which issued the writ or
2. give a counter-bond executed to the applicant,
in an amount equal to the bond fixed by the court in the order of
attachment or to the value of the property to be attached, exclusive
of costs.
DISCHARGE OF ATTACHMENT
 After a writ of attachment has been enforced, the party whose
property has been attached, or the person appearing on his or
her behalf, may move for the discharge of the attachment,
wholly or in part:
o by making a cash deposit or
o by filing a counter-bond executed to the attaching
party in an amount equal to that fixed by the court in
the order of attachment, exclusive of costs.
 However, if the attachment sought to be discharged refers to a
particular property, the counter-bond shall be equal to the
value of that property as determined by the court.
 Such cash deposit or counter-bond shall secure the payment of
any judgment that the attaching party may recover in the
action.
 After due notice and hearing the court shall order the discharge
of the attachment.
 Effect of Discharge
- Upon the discharge of an 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 or her
behalf.
 Remedy if Counter-bond is Insufficient
- Should such counter-bond for any reason be found to be
insufficient or has become insufficient, the court may
require him or her to file an additional counter-bond.
 If he or she fails to furnish the required
additional counter-bond, the attaching party
may apply for a new order of attachment.
 Discharge on Other Grounds
- The party whose property has been ordered attached may
file a motion with the court in which the action is pending
for an order to set aside or discharge the attachment on
the ground that the same was improperly or irregularly
issued or enforced, or that the bond is insufficient.
- Said motion may be filed before or after levy or even after
the release of the attached property.
- If the attachment is excessive, the discharge shall be
limited to the excess.
- If the motion be made on affidavits on the part of the
movant, the attaching party may oppose the motion by
counter-affidavits or other evidence in addition to that on
which the attachment was made.
- After due notice and hearing, and the defect is not cured,
the court shall order the setting aside or the corresponding
discharge of the attachment if it appears that it was
improperly or irregularly issued or enforced, or that the
bond is insufficient, or that the attachment is excessive.
THIRD-PARTY CLAIM
 A third-party claimant is a person who claims the property
attached other than the party against whom the attachment
was issued or his or her agent.
 In effecting the claim, the third-party claimant executes an
affidavit of his or her title to the property attached or his or her
right to the possession thereof.
- The affidavit of third-party claim shall also state the
grounds of such right or title.
- Said affidavit shall be served upon the sheriff while the
latter has possession of the attached property and a copy
thereof upon the attaching party.
- Upon service of said affidavit, the sheriff shall not be
bound to keep the property under attachment.
 Indemnity Bond
- The sheriff may demand from the attaching party or his or
her agent to file a bond approved by the court to
indemnify the third-party claimant in a sum not less than
the value of the property levied upon.
o In case of disagreement as to the value of the
property, the same shall be decided by the court
which issued the writ of attachment.
- Upon the filing and approval by the court of such
indemnity bond, the sheriff shall not be liable for damages
for the taking or keeping of such property to any such
third-party claimant.
o Any claim for damages for the taking or keeping
of the property must be enforced against the
bond within 120 days from the date of the filing
of thereof.
- XPN: Such indemnity bond shall not be required when the
writ of attachment is issued in favor of the Republic of the
Philippines, or any officer duly representing it.
o In case the sheriff is sued for damages as a result
of the attachment, he or she shall be
represented by the Solicitor General.
o If the sheriff is held liable therefor, the actual
damages adjudged by the court shall be paid by
the National Treasurer out of the funds to be
appropriated for the purpose.
- The third-party claimant is, of course, not prevented from
vindicating his or her claim to the property, or prevent the
attaching party from claiming damages against a third-
party claimant who filed a frivolous or plainly spurious
claim, in the same or a separate action.
SALE OF ATTACHED PROPERTY BEFORE ENTRY OF JUDGMENT
5|Page
 Upon hearing with notice to both parties, the court in which the - After the judgment is satisfied, the sheriff shall forthwith
action is pending may order the attached property be sold at make a return in writing to the court of his or her
public auction in such manner as it may direct even before the proceedings and furnish the parties with copies thereof.
entry of judgment. The proceeds of such sale shall be deposited Effects if Judgment is against the Attaching Party
in the court to abide the judgment in the action.  If judgment be rendered against the attaching party, all the
 This may only be done when it is made to appear to the court: proceeds of sales and money collected or received by the
1. that the property attached is perishable, or sheriff, under the order of attachment, and all property
2. that the interests of all the parties to the action will attached remaining in any such officers hands, shall be
be sub-served by the sale thereof. delivered to the party against whom the attachment was
issued. The order of attachment shall be discharged,
SATISFACTION OF JUDGMENT accordingly.
 If judgment is eventually rendered and an execution thereof is  Where the party against whom the attachment had been issued
issued, the sheriff may cause the judgment to be satisfied out of has deposited money instead of giving a counter-bond, and
the property attached: judgment was eventually rendered in his or her favor, the
a. By paying to the judgment obligee the proceeds of all sales whole sum of such deposit shall be refunded to him or her or
of perishable or other property sold in pursuance of the his or her assignee.
order of the court, or so much as shall be necessary to  Such party against whom the attachment was issued may also
satisfy the judgment; recover damages against the attaching party in the same action
b. If any balance remains due, by selling so much of the from the attachment bond or deposit given by the latter.
property, real or personal, as may be necessary to satisfy o In the event that such bond or deposit will not be
the balance, if enough for that purpose which remain in sufficient or will fail to satisfy the award, the same
the sheriff's hands, or in those of the clerk of the court; may be recovered from the property of the attaching
c. By collecting from all persons having in their possession party which are not exempt from execution.
credits belonging to the judgment obligor, or owing debts o The application for damages against the bond shall
to the latter at the time of the attachment of such credits not be allowed if the claim is made after the dismissal
or debts, the amount of such credits and debts as order issued by the trial court had attained finality.
determined by the court in the action, and stated in the
judgment, and paying the proceeds of such collection over
to the judgment obligee.
 Against Money Deposit
- Where the party against whom the attachment had been
issued has deposited money instead of giving a counter-
bond, such cash deposit shall be applied under the
direction of the court to the satisfaction of any judgment
rendered in favor of the attaching party.
- After satisfying the judgment, the balance shall be
refunded to the depositor or his or her assignee.
 Against the Counter-bond
- When the judgment has become executory, the surety or
sureties on any counter-bond given by the party against
whom the attachment was issued to secure the payment
of the judgment shall become charged on such counter-
bond and shall be bound to pay the judgment obligee
upon demand of the amount due under the judgment.
- Such amount may be recovered from such surety or
sureties after notice and summary hearing in the same
action.
 Surplus
- If after realizing upon all the property attached, including
the proceeds of any debts or credits collected, and
applying the proceeds to the satisfaction of the judgment
less the expenses of proceedings upon the judgment any
balance shall remain due, the sheriff must proceed to
collect such balance as upon ordinary execution.
- Whenever the judgment shall have been paid, the sheriff,
upon reasonable demand, must return to the judgment
obligor the attached property remaining in his or her
hands, and any proceeds of the sale of the property
attached not applied to the judgment.
 Sheriff’s Return
6|Page
 CHAPTER 41
PRELIMINARY INJUNCTION
DEFINITION
 Injunction
- defined as a judicial writ, process or proceeding whereby a
party is ordered to do or refrain from doing a certain act
- may be filed as a main action before the trial court or as a
provisional remedy in the main action
- the main action for injunction is distinct from the
provisional or ancillary remedy of preliminary injunction
which cannot exist except only as part or an incident of an
independent action or proceeding
 Preliminary Injunction
- 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
refrain from a particular act or acts
1. preliminary mandatory injunction – may
also require the performance of a particular
act or acts
i. a mandatory injunction
commands the performance of
some positive act to correct a
wrong in the past
2. prohibitory injunction – the order is one
that commands a party to refrain from
doing a particular act or acts
- a writ of preliminary injunction is an extraordinary event
which must be granted only in the face of actual and
existing substantial rights.
 It has been classified as a strong arm of equity or
a transcendent remedy. Thus, it must be
exercised sparingly, with utmost care, and with
great caution and deliberation.
 The duty of the court taking cognizance of a
prayer for a writ of preliminary injunction is to
determine whether the requisites necessary for
the grant of an injunction are present in the case
before it. According to the Supreme Court, in the
absence of such necessary requisites, and where
facts are shown to be wanting in bringing the
matter within the conditions for its issuance, the
ancillary writ issued by a court must be struck
down for having been rendered in grave abuse
of discretion.
- In an action for injunction, the auxiliary remedy of
preliminary injunction, whether prohibitory or mandatory,
may issue.
 Under the law, the main action for injunction
seeks a judgment embodying a final injunction
which is distinct from, and should not be
confused with, the provisional remedy of
preliminary injunction, the sole object of which is
to preserve the status quo until the merits can
be heard.
 A preliminary injunction is granted at any stage
of an action or proceeding prior to the judgment
or final order. It persists until it is dissolved or
until the termination of the action without the
court issuing a final injunction.
WHO MAY GRANT PRELIMINARY INJUNCTION?
- by the court where the action or proceeding is pending
- if the action or proceeding is pending before the Court of
Appeals or the Supreme Court, it may be issued by said
court or any member thereof
GROUNDS
A prayer for the issuance of preliminary injunction may be granted
on any of the following grounds, to wit:
a. 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;
b. the commission, continuance or non-performance of the
act or acts complained of during the litigation would
probably work injustice in the applicant; or
c. 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.
VERIFIED APPLICATION
- The applicant for a writ for preliminary injunction or
temporary restraining order must file a verified application
in the action or proceeding. Such application must show
the facts which would entitle the applicant to the relief
demanded.
INJUNCTION BOND
- The applicant shall also file with the court where the action
or proceeding is pending an injunction bond executed to
the party or person enjoined, unless he or she is exempted
by the court from filing the same.
- The amount of such injunction bond shall be fixed by the
court.
- The injunction bond shall guarantee the payment of all
damages which may be sustained by the party against
whom the injunction would be issued by reason of the
injunction or temporary restraining order if the court
should finally decide that the applicant was not entitled
thereto.
RAFFLE OF CASES
 If filed in a multiple-sala court :
- When an application for a writ of preliminary injunction or
a temporary restraining order is included in a complaint or
any initiatory pleading, the case shall be raffled among the
branches
- Such raffle may only be conducted after notice to and in
the presence of the adverse party or the person to be
enjoined.
 If filed in a single sala court:
- The same shall be acted upon accordingly by the presiding
judge of that court.
7|Page
SERVICE OF SUMMONS
 In any event, such notice shall be preceded, or
contemporaneously accompanied, by service of summons upon
the adverse party in the Philippines.
o Such summons shall be served together with
1. a copy of the complaint or initiatory pleading
and
2. the applicant's affidavit and bond.
 The requirement of prior or contemporaneous service of
summons shall not apply:
1. where the summons could not be served personally or by
substituted service despite diligent efforts, or
2. the adverse party is a resident of the Philippines but
temporarily absent therefrom or is a non-resident thereof.
EXECUTIVE TRO
 Prior to the case being raffled to the branch, the executive
judge or the presiding judge of a single sala court may issue a
temporary restraining order (also referred to as Executive TRO)
if he or she finds that the matter is of extreme urgency and that
the applicant will suffer grave injustice and irreparable injury if
the same is not issued.
 Such Executive TRO may be issued ex parte.
 It shall be effective only for seventy-two (72) hours from its
issuance. Thereafter, the executive judge or the presiding judge
of a single sala court shall immediately comply with the
required service of summons and other documents as discussed
earlier.
 Summary Hearing
- Where an executive TRO was issued, the court in which
the application was raffled to shall conduct a summary
hearing within such 72-hour period to determine if there is
a need to extend the effectivity of such temporary
restraining order.
- The temporary restraining order which the court may
thereafter issue shall not exceed twenty (20) days
including the seventy-two (72) hours within which the
previously issued executive TRO was in effect.
TEMPORARY RESTRAINING ORDER
 Where no such executive TRO was issued, the court to which
the case was eventually raffled to shall conduct a summary
hearing on the application for preliminary injunction.
- Such hearing shall be conducted within twenty-four
(24) hours after the sheriff's return of service and
receipt of the records of the case.
- No preliminary injunction shall be granted without
such hearing and prior notice to the party or person
sought to be enjoined.
 Before the conduct of such hearing, the court may issue a
temporary restraining order if it shall appear from the facts
shown by the affidavits or by the verified application that great
or irreparable injury would result to the applicant.
- Unlike in the issuance of a writ of preliminary
injunction, a temporary restraining order may be
issued by the court ex parte to preserve status quo.
Such temporary restraining order shall be effective
only for a period of twenty (20) days from service
thereof on the party or person sought to be enjoined.
- The rule is different if there was a previous seventy-
two-hour TRO issued by the executive judge.
 For purposes of determining the need to
issue a temporary restraining order which
will extend the effectivity of such executive
TRO, a summary hearing is required to be
conducted.
 This summary hearing is separate from the
one conducted on the application for
preliminary injunction.
 Court of Appeals and Supreme Court
- If issued by the Court of Appeals or a member thereof: the
temporary restraining order shall be effective for sixty (60)
days from service on the party or person sought to be
enjoined.
- If issued by the Supreme Court or a member thereof : it
shall be effective until further orders.
PRELIMINARY INJUNCTION
 Within the 20-day period of the effectivity of any temporary
restraining order issued or where there was none issued, the
court must issue an order to the party or person sought to be
enjoined to show cause, at a specified time and place, why the
injunction should not be granted.
 It shall also conduct hearing and determine within the same
period whether or not preliminary injunction should be issued.
- Again, no preliminary injunction may be issued
without this required notice and hearing.
- However, when there are no factual issues in dispute
and the issues raised were purely legal wherein both
counsels were given the opportunity to orally argue
their case before the judge during the hearing, it was
held that such hearing conducted was adequate and
compliant and the prayer for the issuance of
preliminary injunction may be resolved by the court
based from the examination of the verified
application and their supporting documents without
requiring the parties to present testimonial evidence.
- Inversely stated, an application for preliminary
injunction may be denied even without the conduct
of a hearing separate from that of the summary
hearing of an application for the issuance of a
temporary restraining order. The rule simply
requires the conduct of hearing before the writ of
preliminary injunction is granted. Where such
application is denied, the requisite hearing is
immaterial.
8|Page
SUNSET CLAUSE
 In the event that the application for preliminary injunction is
denied or not resolved within the 20-day period, the temporary
restraining order is deemed automatically vacated.
o The effectivity of a temporary restraining order is not
extendible without need of any judicial declaration to
that effect.
o No court shall have the authority to extend or renew
the same on the same ground for which it was issued.
It would even be erroneous to extend its life by
issuing a status quo ante order.
First Sarmiento Property Holdings vs. PBCom
“If the application for preliminary injunction is denied or not resolved
within the given periods, the temporary restraining order is automatically
vacated and the court has no authority to extend or renew it on the same
ground of its original issuance.
A temporary restraining order cannot be extended indefinitely to take the
place of a writ of preliminary injunction, since a temporary restraining
order is intended only to have a limited lifespan and is deemed
automatically vacated upon the expiration of seventy-two (72) hours or
twenty (20) days, as the case may be.
This Court has repeatedly expounded on the nature of a temporary
restraining order and a preliminary injunction. Yet lower courts
consistently interchange these ancillary remedies and disregard the
sunset clause inherent in a temporary restraining order by erroneously
extending it indefinitely. Such ignorance or defiance of basic remedial
measures is a gross disservice to the public, who look towards the court
for legal guidance and legal remedy. More importantly, this cavalier
attitude towards these injunctive reliefs might even be construed as a
deliberate effort to look the other way to favor a party, which will then
sully the image of the entire judiciary. Henceforth, this Court will demand
stricter compliance with the rules from the members of the bench as
regards their issuances of these injunctive reliefs.
 Supreme Court Administrative Circular No. 07- 99: judges are
enjoined to observe utmost caution, prudence and
judiciousness in the issuance of temporary restraining order
(TRO) and in the grant of writ of preliminary injunction to avoid
any suspicion that its issuance or grant was for considerations
other than the strict merits of the case.
 Exception: The prohibition against renewal or extension of the
period of a temporary restraining order is limited only to the
same ground or basis for which the same was originally issued.
The period of the effectivity of a temporary restraining order,
however, may be extended or renewed when a new ground or
basis therefor should exist. Such extension or renewal shall be
subject to the same limitations under the Rules.
GROUNDS FOR OBJECTION OR MOTION OF DISSOLUTION
- The application for injunction or restraining order may be
denied, upon a showing of its insufficiency;
- The injunction or restraining order may also be denied, or,
if granted, may be dissolved, on other grounds upon
affidavits of the party or person enjoined, which may be
opposed by the applicant also by affidavits;
- It may further be denied, or if granted, may be dissolved, if
it appears after hearing that although the applicant is
entitled to the injunction or restraining order, the issuance
or continuance thereof, as the case may be, would cause
irreparable damage to the party or person enjoined while
the applicant can be fully compensated for such damages
as he or she may suffer.
- This ground requires the party sought to be
enjoined to file a bond in an amount fixed by the
court which is conditioned to pay all damages
which the applicant may suffer by the denial or
the dissolution of the injunction or restraining
order.
- If it appears that the extent of the preliminary
injunction or restraining order granted is too
great, it may be modified.
SERVICE OF BONDS
 The party filing a bond shall forthwith serve a copy of such bond
on the other party. This applies to both the party seeking the
injunctive relief and the one seeking its denial or dissolution.
 Sufficiency of the Bond
- The party to whom such bond is served may object to its
sufficiency or of the surety or sureties thereon.
- If the applicant's bond is found to be insufficient in
amount, or if the surety or sureties thereon fail to justify,
he or she should file a bond sufficient in amount with
sufficient sureties. Otherwise, the injunction shall be
dissolved.
- If the bond of the adverse party is found to be insufficient
in amount, or the surety or sureties thereon fail to justify,
he or she should file a bond sufficient in amount with
sufficient sureties. Otherwise, the injunction shall be
granted or restored, as the case may be.
ISSUANCE OF INJUNCTIVE RELIEF
 In Pineda vs. CA, and Castro vs. Dela Cruz the Supreme Court
held that the sole objective of the provisional remedy of
preliminary injunction is to preserve the status quo until the
merits of the case can be heard fully.
- Its grant or denial rests in the sound discretion of the
court. Such court's discretion is not interfered even by
the Supreme Court unless there is a showing that the
grant or denial is tainted with grave abuse of
discretion.
 An injunctive writ may be issued when there is a clear and
unmistakable right proven by the party seeking it.
- A clear legal right means one that is clearly founded in
or granted by law or is enforceable as a matter of law.
- To establish the essential requisites for a preliminary
injunction, the evidence submitted by the applicant at
the hearing need not be conclusive and complete.
The applicant is only required to show that they have
an ostensible right to the final relief prayed for in the
complaint or pleading.
BPI vs. Hontanosas, Jr., et al.
A civil action was commenced against Bank of the Philippine Islands (BPI)
to annul the promissory notes, real estate and chattel mortgages
executed in its favor. The plaintiff also applied for a temporary restraining
order or a writ of preliminary injunction to prevent the bank from
foreclosing on the mortgages against the properties.
The Regional Trial Court granted the application for preliminary injunction
and ordered the issuance of the writ upon the filing of a bond in the
amount of P2,000,000.00 in favor of BPI. The writ orders the bank and its
agents to cease and desist from commencing the foreclosure and sale
9|Page
 proceedings of the mortgaged properties. The motion for reconsideration
filed by the bank was denied.
Assailing said order, the bank filed a petition for certiorari in the Court of
Appeals which affirmed the order of the Regional Trial Court and denied
the motion for reconsideration it subsequently filed. Hence the bank
appealed to the Supreme Court.
The Supreme Court found that the application for the issuance of the writ
of preliminary injunction was improper and its issuance by the Regional
Trial Court was plainly erroneous and unwarranted. It held that injunction
must be issued only at the instance of a party who possesses sufficient
interest in or title to the right or the property sought to be protected. It
is proper only when the applicant appears to be entitled to the relief
demanded in the complaint, which must aver the existence of the right
and the violation of the right, or whose averments must in the minimum
constitute prima facie showing of a right to the final relief sought. The
conditions for the issuance of the injunctive writ are:
a) that the right to be protected exists prima facie;
b) that the act sought to be enjoined is violative of that right; and
c) that there is an urgent and paramount necessity for the writ to prevent
serious damage.
According to it, an injunction will not issue:
a) to protect a right not in esse, or a right which is merely contingent and
may never arise; or
b) to restrain an act which does not give rise to a cause of action; or
c) to prevent the perpetration of an act prohibited by statute.
A right to be protected by injunction means a right clearly founded on or
granted by law or is enforceable as a matter of law.
EFFECT OF FAIT ACCOMPLI
 Injunction would not lie where the acts sought to be enjoined
have already become fait accompli or an accomplished or
consummated act.
 Where the very purpose of the preliminary injunction has
expired, any declaration upholding the propriety of the writ
would be entirely useless as there would be no actual case or
controversy between the parties insofar as the preliminary
injunction is concerned.
 To explain further, a case or issue is considered moot and
academic when it ceases to present a justiciable controversy by
virtue of supervening events. The happening of such
supervening event renders the adjudication of the case or a
declaration on the issue to be of no practical value or use.
 In such instance, there is no actual substantial relief which the
applicant would be entitled to, and which would be negated by
the dismissal of the application.
 In this situation, courts generally decline jurisdiction over such
case or dismiss it on the ground of mootness. This is because
the judgment will not serve any useful purpose or have any
practical legal effect because it cannot be enforced anymore.
 However, injunction is not a cause of action in itself but merely
a provisional remedy, an adjunct to a main suit. When the act
sought to be enjoined had become fait accompli, only the
prayer for provisional remedy should be denied. The trial court
should still proceed with the determination of the principal
action so that an adjudication of the rights of the parties can be
had.
DOCTRINE OF NON-INTERFERENCE OR JUDICIAL STABILITY
 No court can interfere by injunction with the judgments or
orders of a co-equal court.
- This doctrine is founded on the concept that a court
which acquires jurisdiction over a case and renders
judgment thereon shall have jurisdiction over its
judgment to the exclusion of all other courts.
- Other courts are not allowed to interfere with this
exercise of jurisdiction as it would result in splitting
the jurisdiction of the court over the subject matter
thereby violating judicial stability.
 This principle applies to the execution of the judgment and all
its incidents, including the conduct of ministerial officers acting
in connection with that judgment.
- As explained by the Supreme Court in Atty. Cabili vs.
Judge Balindong, a court which issued a writ of
execution has the inherent power to correct errors of
its ministerial officers and to control its own
processes for the advancement of justice. To hold
otherwise would be to divide the jurisdiction of the
appropriate forum in the resolution of incidents
arising in execution proceedings.
- However, in Fermin, et al vs. Estevez, the Supreme
Court, following the generally accepted principle that
no man shall be affected by any proceeding to which
he is a stranger, held that the execution of a
judgment can only be issued against one who is a
party to the action.
 Thus, it allowed the issuance of an
injunctive relief in favor of a third person
against the execution of the judgment of
another court. This ruling, however, should
not be interpreted as an immediate
exception to the doctrine of non-
interference whenever it involves a third
party.
 A third party, who is not the judgment obligor, may claim the
property subject of the proceeding under the remedy of
terceria contemplated under Rule 39, before the same action
and in the same court. This remedy applies where the property
being claimed was levied upon by reason of the judgment
rendered by said court. In short, the property being claimed is
the subject of the controversy before said court. Under this
situation, the third party claimant cannot seek remedy by way
of injunction from another court which exercises concurrent
jurisdiction without violating the doctrine of non-interference.
This is due to the fact that the issue involved in the third party
claim can be resolved by the court which rendered the
judgment.  
- On the other hand, where the property being claimed
by that third person is not among those which were
the subject of the litigation or does not belong to the
judgment debtor, injunctive relief may be sought.
10 | P a g e
WHEN NOT ALLOWED
 Section 1 of P.D. No. 1818 deprives courts of jurisdiction to
issue injunctive writs against the implementation or execution
of an infrastructure project.
 Judges are also reminded that the Collector of Customs has
exclusive jurisdiction over seizure and forfeiture proceedings
and that regular courts cannot interfere with his or her
exercise thereof or strife or put it to naught.
 The Supreme Court also explained that preliminary injunction
cannot be enforced against one who is not a party to the case.
R.A. NO. 8975
 R.A. No. 8975 expressly prohibits courts to issue any temporary
restraining order, preliminary injunction, and preliminary
mandatory injunction against the government or any of its
subdivisions, officials or any person or entity, whether public or
private, acting under the government direction, to restrain,
prohibit or compel the:
1. acquisition, clearance and development of the right-of-
way and/or site or location of any national government
projects;
2. bidding or awarding of contract/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. undertaking or authorization of any other lawful activity
necessary for such contract/project.
 Any temporary restraining order, preliminary injunction, or
preliminary mandatory injunction issued in violation of said law
is void and of no force and effect. In fact, the judge who issues
the same shall be penalized accordingly.
 Exception
 Such temporary restraining order, preliminary injunction, or
preliminary mandatory injunction may only be issued by the
Supreme Court.
 The Supreme Court has clarified that the prohibition
contemplated under R.A. No. 8975 is applicable only to national
government infrastructure projects. Thus, for local government
infrastructure projects, the Regional Trial Court may issue
provisional injunctive reliefs against the government when:
1. there are compelling and substantial constitutional
violations;
2. there clearly exists a right in esse;
3. there is a need to prevent grave and irreparable injuries;
4. there is a demonstrable urgency to the issuance of the
injunctive relief; and
5. when there are public interests at stake in restraining or
enjoining the project while the action is pending that far
outweigh:
a. the inconvenience or costs to the party to whom the
project is awarded and
b. the public benefits that will result from the
completion of the project.
The time periods for the validity of temporary restraining orders
issued by trial courts in such cases should be strictly followed. No
preliminary injunction should issue unless the evidence to support
the injunctive relief is clear and convincing.
Other Prohibitions
Injunctive relief cannot likewise be issued:
1. in cases involving concessions, licenses and other permits
issued by public administrative officials or bodies for the
exploitation of natural resources.
2. against the Presidential Agrarian Reform Council or any of its
duly authorized agencies in any case connected with the
application, implementation or enforcement of the CARP
3. against the Asset Privatization Trust which is now known as the
Privatization and Management Office of the Department of
Finance
Injunction as Principal Action
 If an injunction is filed as the main or principal action, the
judgment rendered thereon is immediately executory and shall
not be stayed by appeal, unless otherwise ordered by the trial
court.
 Such action is in the nature of an ordinary civil action.
Writ of Possession
 ISSUANCE OR GRANT OF A WRIT OF POSSESSION: ministerial
duty of the court.
o issued as a matter of course upon proper motion and
the approval of the corresponding bond.
o no discretion is left to the trial court.
o it cannot be stayed by an injunction.
o injunctions to prohibit the issuance of such writ has
been prohibited by the Supreme Court in many cases
and held that the issuance of the same may not be
stayed by a pending action for annulment of
mortgage or the foreclosure thereof.
Judgment
At the trial, the amount of damages to be awarded to either party,
upon the bond of the adverse party, shall be claimed, ascertained,
and awarded under the same procedure prescribed under the rules
on attachment.
Permanent Injunction
If after the trial of the action it appears that the applicant is entitled
to have the act or acts complained of permanently enjoined, the
court shall grant a final injunction perpetually restraining the party
or person enjoined from the commission or continuance of the act
or acts or confirming the preliminary mandatory injunction.
Otherwise, the prayer for injunction shall be dismissed.
11 | P a g e
 Chapter 42
RECEIVERSHIP
RECEIVERSHIP
 not an action itself
 only an auxiliary remedy and a mere incident in a suit.
 such remedy is sought to achieve any of the following specific
purposes, to wit:
a. When it appears from the verified application, and such
other proof as the court may require, that the party
applying for the appointment of a receiver has an interest
in the property or fund which is the subject of the action
or proceeding, and that such property or fund is in danger
of being lost, removed, or materially injured unless a
receiver be appointed to administer and preserve it;
b. When it appears in an action by the mortgagee for the
foreclosure of a mortgage that the property is in danger of
being wasted or dissipated or materially injured, and that
its value is probably insufficient to discharge the mortgage
debt, or that the parties have so stipulated in the contract
of mortgage;
c. After judgment, to preserve the property during the
pendency of an appeal, or to dispose of it according to the
judgment, or to aid execution when the execution has
been returned unsatisfied or the judgment obligor refuses
to apply his or her property in satisfaction of the judgment,
or otherwise to carry the judgment into effect;
d. Whenever in other cases it appears that the appointment
of a receiver is the most convenient and feasible means of
preserving, administering, or disposing of the property in
litigation.
 Where the main action does not require the protection,
preservation, administration or disposition of the property
involved, the remedy does not fall within the concept of
receivership.
WHERE SOUGHT
 in the court where the action is pending
- It is done by filing a verified application seeking the
appointment of one (1) or more receivers of the
property subject of the action or proceeding.
 the Court of Appeals or the Supreme Court, or a member
thereof, may also act upon and grant such application.
 where the application is sought during the pendency of an
appeal – the appellate court may allow such application to be
filed in and decided by the court of origin and the receiver
appointed to be subject to the control of said appellate court
ACTION BY THE COURT (this doesn’t really say much about action by
the court, but more like precaution)
 The Supreme Court has repeatedly held that receivership is a
harsh remedy to be granted with utmost circumspection and
only in extreme situations.
 The power to appoint a receiver is a delicate one and should be
exercised with extreme caution and only under circumstances
requiring summary relief or where the court is satisfied that
there is imminent danger of loss. Otherwise, the injury thereby
caused would be far greater than the injury sought to be
averted.
 The court should consider the consequences to all of the parties
and the power should not be exercised when it is likely to
produce irreparable injustice or injury to private rights or the
facts demonstrate that the appointment will injure the interests
of others whose rights are entitled to as much consideration
from the court as those of the applicant.
 The appointment of a receiver is not proper when the rights of
the parties, one of whom is in possession of the property,
depend on the determination of their respective claims to the
title of such property unless:
o such property is in danger of being materially injured
or lost, as by the prospective foreclosure of a
mortgage on it or its portions are being occupied by
third persons claiming adverse title.
(More like it’s stopping the court to take action lol)
APPLICANT’S BOND
 The applicant shall likewise be required by the court to file a
bond executed to the party against whom the application is
presented.
 The amount of such bond: shall be fixed by the court.
- It is to guarantee the payment of all damages that the
adverse party may sustain by reason of the
appointment of such receiver in case the applicant
has procured the same without sufficient cause.
 The filing of the applicant's bond is mandatory and is required
at all times.
- The consent of the parties that there is sufficient
cause to appoint a receiver is of no moment and will
not justify an exception to this requisite.
RECEIVER’S OATH
Where the court granted the application, the appointed receiver
shall be required to take his or her oath that he or she shall perform
his or her duties faithfully and shall obey the orders of the court
before he or she is allowed to assume such duties as receiver.
RECEIVER’S BOND
 The receiver shall be required to file a bond, executed to such
person and in such sum as the court may direct.
 At any time after such appointment, the court may require an
additional bond as further security for such damages.
 Unlike in the filing of an applicant's bond, however, the
requirement of posting this additional receiver's bond rests
upon the discretion of the court.
GENERAL POWERS OF RECEIVER
Subject to the control of the court in which the action or proceeding
pending, a receiver shall have the power:
a. to bring and defend, in such capacity, actions in his or her own
name;
b. to take and keep possession of the property in controversy;
c. to receive rents;
d. to collect debts due to himself or herself as receiver or to the
fund, property, estate, person, or corporation of which he or
she is the receiver;
e. to compound for and compromise the same;
12 | P a g e
f. to make transfers; in case of disagreement, as determined and ordered by the
g. to pay outstanding debts; court.
h. to divide the money and other property that shall remain  If that person refuses or neglects, he or she:
among the persons legally entitled to receive the same; and a. may be punished for contempt and
i. to generally do such acts respecting the property as the court b. shall be liable to the receiver for the money or the
may authorize. value of the property and other things so refused or
neglected to be surrendered, together with all
 However, funds in the hands of a receiver may be invested only damages that may have been sustained by the party
by order of the court upon the written consent of all the parties or parties entitled thereto as a consequence of such
to the action. refusal or neglect.
 No action may be filed by or against a receiver without leave of
the court which appointed him or her.
TERMINATION OF RECEIVERSHIP
 Whenever the court shall determine that the necessity for a
ADVERSE PARTY’S BOND receiver no longer exists, it shall, after due notice to all
 The application may be denied, or the receiver discharged, interested parties and hearing, settle the accounts of the
when the adverse party files a bond executed to the applicant receiver, direct the delivery of the funds and other property in
to the effect that such party will pay the applicant all damages his or her possession to the person adjudged to be entitled to
he or she may suffer by reason of the acts, omissions, or other receive them.
matters specified in the application as ground for such  The determination of such necessity for a receiver may be done
appointment. by the court motu proprio or on motion of either party.
 The amount of such bond shall be fixed by the court.  The court shall then order the discharge of the receiver from
further duty as such.
 The court shall allow the receiver such reasonable
OTHER GROUND FOR DISCHARGE compensation as the circumstances of the case warrant, to be
 The receiver may also be discharged if it is shown that his or her taxed as costs against the defeated party, or apportioned, as
appointment was obtained without sufficient cause. justice requires.
 In such case, damages may be recovered from the applicant's
bond. JUDGMENT
The amount, if any, to be awarded to any party upon any bond filed
shall be claimed, ascertained, and granted under the same
OBJECTIONS ON BONDS procedure prescribed in the rules on attachment.
 The person filing a bond as discussed above shall serve a copy
thereof on each interested party.
 Such party served with a bond may object to its sufficiency or of OTHER ACTIONS FOR RECEIVERSHIP
the surety or sureties thereon.
The remedy on receivership of  governed by the Interim
corporations, partnerships, and Rules of Procedure on
EFFECTS OF INSUFFICIENT BOND associations: Corporate Rehabilitation.
 If either the applicant's bond or the receiver's bond is found to For banks under liquidation by  governed by the
be insufficient in amount, or if the surety or sureties thereon the Philippine Deposit provisions of R.A. No.
fail to justify: the court may order that a bond sufficient in Insurance Corp. receivership 7653, as amended by R.A.
thereon: No. 11211, otherwise
amount with sufficient sureties approved after justification be
known as the "New
filed.
Central Bank Act."
1. When such sufficient bond is not filed, the application
shall be denied or the receiver shall be discharged, as
The Court of Appeals has no power to appoint a receiver in an intra-
the case may be.
corporate controversy since such incident falls within the exclusive
 Where the bond of the adverse party is found to be insufficient
original jurisdiction of the Regional Trial Court.
in amount or the surety or sureties thereon fail to justify: he or
she shall be required to file a bond sufficient in amount with
sufficient sureties approved after justification.
1. Otherwise, the receiver shall be appointed or re-
appointed, as the case may be.
CHAPTER 43
REPLEVIN
LIABILITY FOR REFUSAL OR NEGLECT TO DELIVER PROPERTY TO
RECEIVER  Replevin – is an action for the recovery of personal property
 A person, upon reasonable demand, may be ordered to deliver whereby a person who is entitled to the repossession of a
to the receiver all the property, money, books, deeds, notes, chattel may recover the same from one who has wrongfully
bills, documents, and papers within his or her power or control distrained it.
which are subject of or involved in the action or proceeding, or
13 | P a g e
 It is both a principal remedy and a provisional relief.  Similarly, the defense that the application lacks this required
1. When utilized as a principal remedy – the objective is to recover affidavit of merit must be raised in the answer, otherwise, the
possession of personal property that may have been wrongfully same will no longer be available for the defendant.
detained by another.
2. When sought as a provisional relief – it allows a plaintiff to
retain the contested property during the pendency of the
action.
 As a provisional remedy a party may apply for an
order for the delivery of the personal property at the
commencement of the action or at any time before
an answer is filed.
 Thus, where the defendant obtained a loan from the
plaintiff which was secured by a chattel mortgage
over a motor vehicle and the defendant failed to pay
the indebtedness, the plaintiff may institute an action
to seek recovery of the mortgaged property through a
writ of replevin with an alternative prayer for the
collection of the amount due on the loan in the event
that manual delivery thereof cannot be effected.
 The purpose of seeking such recovery of the
mortgaged property is to have the mortgaged
foreclosed and the property sold so that the proceeds
thereof may be applied to the payment of the loan.
 Where the mortgaged vehicle is not recovered and
delivered to the plaintiff despite the issuance of such
writ, the court may validly render judgment granting
the alternative prayer for sum of money and the
defendant cannot claim that there was double
recovery or unjust enrichment on the part of the
plaintiff.
 The applicant need not be the owner of the property
sought to be recovered. As long as he or she is able to
specify his or her right to the possession of the
property and his or her legal basis therefor, the
remedy of replevin may be availed of.

REQUIREMENTS
In applying for the provisional remedy of a writ of replevin, the
applicant or some other person who personally knows the facts
must execute an affidavit of merit showing:
a. That the applicant is the owner of the property claimed,
particularly describing it, or is entitled to the possession
thereof;
b. That the property is wrongfully detained by the adverse party,
alleging the cause of detention thereof according to the best of
his or her knowledge, information, and belief;
c. That the property has not been distrained or taken for a tax
assessment or a fine pursuant to law, or seized under a writ of
execution or preliminary attachment, or otherwise placed
under custodia legis, or if so seized, that it is exempt from such
seizure or custody; and
d. The actual market value of the property.
 Although the better practice is to keep the required affidavit of
merit and the pleading separate, the Supreme Court held that
there was substantial compliance with the rule even without
such affidavit of merit when the complaint contains a
statement of every fact required to be stated in the affidavit
of merit and that the complaint is verified like an affidavit.

14 | P a g e
15 | P a g e