Lex Provisional Remedies

PROVISIONAL
REMEDIES
ORIGINAL PRESENTATION BY:
ATTY. CHRISTIAN DELOS SANTOS, LLM
UNIVERSITY OF MELBOURNE (AUSTRALIA)
ATENEO DE MANILA LAW SCHOOL
WITH UPDATES FROM:

ATTY. SANDRA MAE T. MAGALANG, LLM
YALE LAW SCHOOL (USA)
UNIVERSITY OF THE PHILIPPINES LAW SCHOOL
TOP 3, PHILIPPINE BAR EXAMINATION
Nature of Provisional Remedies
Provisional because they constitute temporary measures
availed of during the pendency of an action.
Ancillary because they are mere incidents in and are

dependent upon the result of the main action.
LEX PROVISIONAL REMEDIES

Purpose of Provisional Remedies
The need for provisional remedy may either be to assure

that any judgment which a plaintiff may recover does not
become a paper judgment (i.e. to secure a judgment), or that
a defendant does not take advantage of the pendency of a
litigation by significantly altering the situation of the
parties ante litem(i.e. to preserve the status quo).
They are also availed of to preserve and protect certain
rights and interests pending the issuance of a final
judgment in a case (i.e. to preserve the subject matter of the
action).

Jurisdiction over Provisional Remedies
The court which grants or issues a provisional remedy is the

court which has jurisdiction over the main action. Even an
inferior court may grant a provisional remedy in an action
pending with it and within its jurisdiction.
However, in the following instances, issuance of injunctions,
including preliminary injunctions, is vested by law to specific
courts:
(1) Injunctions under RA8975 (Gov’t Infra Projects)--SC;
(2) RA 10667 (PCA) – CA and SC;
(3) RA 10167 (AMLA) – SC.

Jurisdiction over Provisional Remedies
Jurisdiction upon the person or over the subject matter in a

provisional remedy is ancillary to jurisdiction in the main
action. If a court has no jurisdiction over the subject matter or
over the person of the defendant in the principal action, it
simply has no jurisdiction to issue a provisional remedy
against a defendant or his/her property.
In other words, the court must first have jurisdiction over the
principal action before it can acquire jurisdiction over
provisional remedies. Further, a court which has not acquired
jurisdiction over the person of a defendant, cannot bind that
defendant in any ancillary proceeding.

Provisional Remedies under the ROC
Preliminary attachment – Rule 57

Preliminary Injunction – Rule 58
Receivership – Rule 59
Replevin – Rule 60
Support Pendente Lite – Rule 61

Preliminary Attachment
Rule Section Topic No. of times
asked (from
1991 to 2019)
Rule Preliminary Attachment 18
57
Sec. 1 Grounds upon which attachment may issue 4
Sec. 2 Issuance and contents of order 3
Sec. 4 Condition of applicant’s bond 2
Sec. 5 Manner of attaching property 2
Sec. 7 Attachment of real and personal property; 3
recording thereof
Sec. 12 Discharge of attachment upon giving 1
counter-bond
Sec. 13 Discharge of attachment on other grounds 1
Sec. 14 Proceedings where property claimed by 1
third person
Sec. 20 Claim for damages on account of improper 1
irregular or excessive attachment

Rule 57: Preliminary Attachment
A. Preliminary Attachment is a provisional remedy issued to
levy on property/properties of a defendant, and put the same
in custodia legis to: (a) serve as security for the satisfaction of
whatever judgment that may be secured in the main action; or
(b) convert an action in personam into quasi in rem in those
instances where personal or substituted services of summons on
the defendant cannot be effected.

B. Requisites:
(a) The case must be among the cases where preliminary attachment may be
issued;
(b) Applicant must file an application/motion;
(c) Applicant must file an Affidavit; and
(d) Applicant must file an Attachment bond
There must be strict compliance with the requisites.
Preliminary attachment is a rigorous remedy which exposes the debtor to
humiliation and annoyance, such that it should not be abused as to cause
unnecessary prejudice. It is, therefore, the duty of the court, before issuing the
writ, to ensure that all the requisites of the law have been complied with;
otherwise, the judge acts in excess of his jurisdiction and the writ so issued
shall be null and void.

(1) The case must be among the cases where preliminary attachment may be
issued:
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 quasi-delict
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 party 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 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. [Rule 57, Sec. 1]

Summary of grounds: (Memorize!)
1. Any claim for money or damages except moral/exemplary, against a
defendant who is about to depart from the Philippines, and with
intent to defraud his/her creditors;
2. Embezzlement/abuse of trust;
3. Action to recover property unjustly taken and there is wilful and
fraudulent concealment, removal, or disposition of the property to
prevent it from being found;
4. Action against a person who removes/conceals property with intent
to defraud creditors;
5. Action against a defendant guilty of fraud in contracting or
performing an obligation;
6. Converting an action in personam into an action quasi in rem

First ground:
(a) Claim must be specific and liquidated; it cannot be
anchored on contingent or un-liquidated claims such as
claims for moral and exemplary damages; AND
(b) The defendant intends to depart from the Philippines
with intent to defraud creditors; thus, the mere allegation
that a defendant intends to depart without allegation
that he/she has an intent to defraud his/her creditors is
not sufficient.

Illustration:
(a) A borrowed money from B. A failed to pay. B sued A. Is preliminary
attachment available?
NO, mere failure to pay, or insolvency, is not a ground for preliminary
attachment.
(b) May preliminary attachment be issued if it can be shown that A is
about to depart from the Philippines?
NO, intend to depart is not enough; it must also be shown that B intends to
depart from the Philippines in order to defraud his/her creditor.

Second ground:
Embezzlement such as:
(a) An action against a public officer who appropriated

funds entrusted to him/her; or
(b) An action against an officer of private corporation who
converted corporate fund to personal use.

Third ground:
(a) An action to recover property unjustly or fraudulently

taken by defendant; AND
(b) The property involved is concealed, removed, or
disposed of to prevent it from being found (Note such
qualification).

Fourth ground:
FRAUD including dolo causante (causal fraud), or fraud used to induce another to
enter into a contract; and dolo incidente (incidental fraud) or fraud employed by a
party in the fulfillment of his/her obligation.
(a) A induced B to grant him a loan using a spurious title as security. B would
not have extended him a loan if not because of the security being offered.
After he gave money to A, B discovered that the title is fake. In an action to
recover the money, B, a victim of dolo causante, may ask the court for
preliminary attachment.
(b) A agreed to sell his land to B. B, who has preconceived plan to deceive A,
paid the latter with fake money. This was eventually discovered by A. In an
action to recover the land, A, who was a victim of dolo incidente, may ask the
court for preliminary attachment.

Fifth ground:
(a) There is removal or disposal of property by a debtor; and

(b) The removal or disposal must be with intent to defraud
the creditor; hence, mere showing that a debtor disposed
of his properties is not sufficient; it must be shown to
have been done with intent to defraud creditor.

Sixth ground:
Converting an action in personam to quasi in rem
This is applicable to an action where:
(a) Defendant is non-resident AND not found in the Philippines;
(b) Defendant whose identity or whereabouts are unknown; and
(c) Defendant who is a resident of the Philippines but temporarily out of
the country.
It contemplates a situation where the action is in personam (which
requires jurisdiction over the person) but summons cannot be served
personally or by substituted service either because defendant is out of
the Philippines, or his/her identity and whereabouts are unknown. In
such a case, preliminary attachment is intended to transform the action
into quasi in rem to enable the court to serve summons by publication.

Illustration:
A filed an action for recovery of real property (an action in personam) against B.
Summons cannot be served upon B because the latter had migrated to the
United States even before the filing of the case. How can summons be served?
A can ask the court to issue preliminary attachment on the subject property. Once the
property is attached, the action is transformed into quasi in rem which will enable the
court to serve summons by publication.
Note that since the action is converted into quasi in rem, the service of summons
by publication is no longer for the purpose of acquiring jurisdiction but for
purposes of complying with the requirements of due process.
Note, however, that the authorization for the issuance of a writ of preliminary
attachment under this ground does not apply to foreign corporations licensed to do
business in the Philippines as they cannot be considered as non-resident
defendants (See State Investment House, et. al. v. Citibank N.A., et. al., G.R. Nos.
79926-27, Oct. 17, 1991).

(2) Applicant must file a motion/application
Applicant may be plaintiff, or “any proper party”, that is, a defendant who
asserts a counterclaim, cross claim, or third party complaint.
It may be applied at the commencement of the action, or at any time before entry
of judgment.
An application for preliminary attachment may be filed ex parte. As stated, it can
even be filed with the initiatory pleading (i.e. before service of summons). It is
allowed to be issued ex parte because it is possible that the time which a hearing
may take can enable a defendant to abscond or dispose of his/her property
before a writ of preliminary attachment may be issued.
HOWEVER, once issued, the writ may not be enforced or implemented
unless preceded, or simultaneously accompanied, by service of
summons, a copy of the complaint, application for attachment, order of
attachment, and attachment bond. Implementation of the writ without
the required service, or without acquiring jurisdiction over the person, is
null and void. This is known as the “rule on prior or contemporaneous
service of summons”.
Rule on prior or contemporaneous service of summons
Grant of the provisional remedy of attachment involves three stages:
1. first, the court issues the order granting the application;
2. second, the writ of attachment issues pursuant to the order granting
the writ; and
3. third, the writ is implemented
For the initial two stages, it is not necessary that jurisdiction over the
person of the defendant be first obtained. However, once the
implementation of the writ commences, the court must have acquired
jurisdiction over the defendant, for without such jurisdiction, the court
has no power and authority to act in any manner against the defendant.

Exceptions to prior or contemporaneous service of summons:
(a)Summons could not be served personally;

(b) Summons could not be served by substituted service despite
diligent efforts;
(c)Defendant is a resident of the Philippines temporarily absent
therefrom;
(d) Defendant is a non-resident of the Philippines; or
(e) Action is one in rem or quasi in rem

(3) Affidavit
The Affidavit of the applicant or of some other person who personally
knows the facts must state:
a. Sufficiency of cause of action;
b. The case is among the actions where preliminary attachment may
be issued;
c. There is no other sufficient security for the claim sought to be
enforced by the action; and
d. 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 granted above all legal counterclaims.
[Rule 57, Sec. 3 of the Rules of Court]
The writ will not be issued if a real estate mortgage exists to secure the
obligation because it is required that there is no other sufficient security
for the claim sought to be enforce. This is true even if instead of
foreclosure, an action for sum of money was filed (See Salgado vs. Court
of Appeals, G.R. No. 55381, March 26, 1984). LEX PROVISIONAL REMEDIES
(4) Attachment bond
The bond must be:
a. executed to the adverse party;
b. in the amount fixed by the court in its order granting the
issuance of the writ;
c. conditioned that the applicant will pay: (i) all the costs
which may be adjudged to the adverse party; and (ii) all
damages which the latter may sustain by reason of the
attachment, if the court shall finally adjudge that the
applicant was not entitled thereto. [Rule 57, Sec. 3 of the
Rules of Court]
State as represented by the government is exempt from filing an
attachment bond on the theory that it is always solvent (See Republic v.
Garcia, G.R. No. 167741, July 12, 2007).

C. Issuance and contents of order of attachment
As discussed, the order of attachment may be issued ex parte or
upon motion with notice and hearing. But, in its implementation,
it must be preceded, or contemporaneously accompanied, by
service of summons, complaint, application, affidavit and
attachment bond.
The order of attachment requires the sheriff of the court to attach
so much of the property in the Philippines of the party against
whom it is issued, not exempt from execution, as may be
sufficient to satisfy the applicant's demand.[Rule 57, Sec. 2 of the
Rules of Court]

D. Manner of attaching real and personal property
(a) Real property – filing with the registry of deeds a copy of the order,
together with a description of the property attached, and a notice that
it is attached.
(b) Personal property capable of manual delivery – by taking and

safely keeping it in his custody, after issuing the corresponding receipt
therefor.
(c)Stocks or shares – by leaving with the president or managing agent

thereof, a copy of the writ and a notice of such attachment.

(d) Debts and credits and other personal property not capable of manual delivery –
by leaving 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 notice of such attachment.
(e) Interest in the estate of a decedent – by serving the executor or administrator or

other personal representative of the decedent with a copy of the writ and notice of
such attachment; and the office of the clerk of the court in which said estate is being
settled and served upon the heir, legatee or devisee concerned.
(f) Property in custodia legis – a copy of the writ of attachment shall be filed with
the proper court or quasi-judicial agency, and notice of the attachment served upon
the custodian of such property (This means that property in custodia legis may still be
attached, and such attachment will operate as a lien thereon. In such a case, the property
already in custodia legis will be governed by priority in the liens [i.e. first attachment will
have a priority over latter ones]).

D. Remedies available to third persons whose property is being attached
(1) The remedy of “terceria” by making an affidavit of his title thereto,
or right to the possession thereof, stating the grounds of such right or
title, and serving such affidavit upon the sheriff.
Upon service of the Affidavit, the sheriff shall not be bound to keep the
property under attachment, unless the attaching party files 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.
(2) The third party claimant may also invoke the court’s
authority/supervision over the sheriff by filing a Motion to set aside levy
on attachment for the purpose of determining whether the sheriff acted
rightly or wrongly in the execution of the writ.
(3) The third party may file a separate and independent action to nullify
the levy with damages. These remedies are separate and independent
from one another.

E. Discharge of attachment
1. Upon posting a counter-bond [or cash deposit] equal to the amount set
by the court. Note that the mere posting of a counter-bond does not
automatically discharge the writ of attachment. It is only after hearing
and after the judge has ordered the discharge of the attachment that the
writ of attachment is properly discharged.
2. If it is shown that the writ was irregularly (wrong procedure) or

improperly issued (absence of any ground); the attachment bond is
insufficient; the attachment is excessive; or the property is exempt from
execution. No counter-bond is required for these grounds.
Similarly, discharge of attachment on these grounds can only be made

upon motion and after hearing (See Peroxide Philippines Corporation
vs. Court of Appeals, 199 SCRA 882).

E. Claim for Damages for wrongful attachment
Where there is wrongful attachment, defendant may recover actual

damages even without proof that the attachment was malicious.
The application may be filed before trial, before appeal is perfected, or
before judgment becomes final and executory with notice to the
attaching party and his surety.
The damages may be awarded only upon proper hearing, and must be
included in the judgment in the main case. This means that application
for damages cannot be set up as an independent action.
Further, even if the judgment in the main case is against him, defendant
may be entitled to damages if the attachment was wrongful.

Preliminary Injunction
Rule Preliminary Injunction 9

58
Sec. 1 Preliminary injunction defined; classes 3
Sec. 4 Verified application and bond for 2

preliminary injunction or temporary
restraining order
Sec. 5 Preliminary injunction not granted without 3

notice
Sec. 9 When final injunction granted 1

Rule 58: Preliminary Injunction
Nature and definition: 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. It may also require the performance of a particular act or
acts, in which case it shall be known as a preliminary mandatory
injunction.
Preliminary mandatory injunction – order to require the doing of an
act
Preliminary prohibitory injunction – order to refrain from doing an
act
Temporary restraining order - order to maintain the subject of
controversy in status quo until the hearing of an application for a
preliminary injunction can be held

Difference between preliminary injunction and TRO:
a. Preliminary injunction – (1) cannot be issued ex parte; (2)
persists until it is dissolved or until the termination of
the action without the court issuing a final injunction.
b. Temporary restraining order – (1) may be issued ex
parte; (2) time-bound (either 72 hours or 20 days) and
automatically expires upon the lapse of the period.

What are the grounds for the issuance of a TRO/preliminary
injunction? (Section 3, Rule 58 )
a. Applicant has a clear and unmistakable right to be protected, that is
a right in esse;
b. There is a material and substantial invasion of such right;
c. There is an urgent need for the writ to prevent irreparable injury to
the applicant; and
d. No other ordinary, speedy, and adequate remedy exists to prevent
the infliction of irreparable injury.
Formal requisites:
a. Verified application; and
b. Filing of bond, unless exempted by the court

5. Grounds for issuance of preliminary injunction
A preliminary injunction may be granted when it is established:
a. That 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. That the commission, continuance or non-performance of the act or
acts complained of during the litigation would probably work
injustice to the applicant; or
c. That 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.

6. Grounds for objection to, or for the dissolution of injunction or
restraining order
a. The application for injunction or restraining order may be denied,
upon a showing of its insufficiency.
b. 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.

6. Grounds for objection to, or for the dissolution of injunction or
restraining order
It may further be denied, or, if granted, may be dissolved, if it appears
after hearing:
a. 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;
b. While the applicant can be fully compensated for such damages as
he may suffer; and
c. The former [that is the party or person enjoined] files a bond in an
amount fixed by the court conditioned that he will pay all damages
which the applicant may suffer by the denial or the dissolution of
the injunction or restraining order.

Duration of TRO
a. Ex Parte TRO – 20 days (threshold: great or irreparable

injury).
b. Ex Parte TRO – 72 hours (threshold: extreme urgency
and the applicant will suffer grave injustice and
irreparable injury).
c. TRO issued by the CA – sixty (60) days.
d. TRO issued by the SC – effective until further orders.

Is the rule on contemporaneous service of summons applicable to
application for preliminary injunction?
YES. When an application of a writ of preliminary injunction or a
temporary restraining order is included in a complaint or any initiatory
pleading, the case, if filed in a multiple-sala court, shall be raffled only after
notice to and in the presence of the adverse party or the person to be
enjoined. In any event, such notice shall be preceded, or
contemporaneously accompanied, by service of summons, together with a
copy of the complaint or initiatory pleading and the applicant’s affidavit
and bond, upon the adverse party in the Philippines (Sec. 4(c), Rule 58).
Rule 58, Sec. 4 (c):Notice of raffle should be accompanied by the following
documents:
a. summons, together with
b. copy of the complaint or initiatory pleading and
c. the applicant’s affidavit and bond posted, if any

Exceptions:
Where the summons could not be (1) served personally or by (2)
substituted service despite diligent efforts, or (3) the adverse
party is a resident of the Philippines temporarily absent
therefrom or (4) is a nonresident thereof, the requirement of prior
or contemporaneous service of summons shall not apply. [Rule
58, Sec. 4 (c), par. 2 of the Rules of Court]

Receivership
Rule 59 Receivership 1
Sec. 1 Appointment of receiver 1

Rule 59: Receivership
Nature: Receivership
A receiver is a person appointed by the court in behalf of all the

parties to the action for the purpose of preserving and conserving
the property in litigation and prevent its possible destruction or
dissipation, if it were left in the possession of any of the parties.
Appointment of a receiver is not a matter of absolute right. It
depends upon the sound discretion of the court and is based on
facts and circumstances of each particular case. [Commodities
Storage & Ice Plant Corp. v. Court of Appeals, G.R. No. 125008.
June 19, 1997, citing Normandy v. Duque, 29 SCRA 385, 391
[1969]]

Cases when a receiver may be appointed
a. When it appears from the verified application, and such other

proof as the court may require:
i. 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
ii. 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. [Rule 59, Sec. 1,
par. 1 (a) of the Rules of Court]

b. When it appears in an action by the mortgagee for the

foreclosure of a mortgage:
i. that the property is in danger of being wasted or

dissipated or materially injured; and
ii. that (i) its value is probably insufficient to discharge the
mortgage debt, or that (ii) the parties have so stipulated in
the contract of mortgage. [Rule 59, Sec. 1, par. 1 (b) of the
Rules of Court]

c. After judgment, (i) to preserve the property during the

pendency of an appeal, or (ii) to dispose of it according to the
judgment, or (iii) to aid execution when the execution has
been returned unsatisfied or the judgment obligor refuses to
apply his property in satisfaction of the judgment, or
otherwise (iv) to carry the judgment into effect. [Rule 59, Sec.
1, par. 1 (c) of the Rules of Court]
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. [Rule 59, Sec. 1, par. 1 (d) of the Rules of Court]

Requisites (before a receiver may be appointed)
1. Oath and bond of the receiver.
◦ Before entering upon his duties, the receiver (i) shall be sworn
to perform them faithfully, and (ii) shall file a bond, executed
to such person and in such sum as the court may direct, to the
effect that he will faithfully discharge his duties in the action or
proceeding and obey the orders of the court. [Rule 59, Sec. 4 of
the Rules of Court]
2. Service of copies of bonds to each interested party.
◦ The person filing a bond in accordance with the provisions of
this Rule shall forthwith serve a copy thereof on each
interested party, who may except to its sufficiency or of the
surety or sureties thereon. [Rule 59, Sec. 5, first sentence of the
Rules of Court]

Requirements before issuance of an order appointing a receiver
Before issuing the order appointing a receiver the court shall require the
applicant to file a bond:
a. executed to the party against whom the application is presented [this
is the applicant’s bond];
b. in an amount to be fixed by the court;
c. to the effect that the applicant will pay such party all damages he
may sustain by reason of the appointment of such receiver in case the
applicant shall have procured such appointment without sufficient
cause; and the court may, in its discretion, at any time after the
appointment, require an additional bond as further security for such
damages. [Rule 59, Sec. 2 of the Rules of Court]

General powers of a receiver
a. Subject to the control of the court in which the action or proceeding is
pending, a receiver shall have the power:
1. to bring and defend, in such capacity, actions in his own name;
2. to take and keep possession of the property in controversy;
3. to receive rents;
4. to collect debts due to himself as receiver or to the fund, property,
estate, person, or corporation of which he is the receiver;
5. to compound for and compromise the same;
6. to make transfers;
7. to pay outstanding debts;
8. to divide the money and other property that shall remain among the
persons legally entitled to receive the same; and
9. generally to do such acts respecting the property as the court may
authorize. [Rule 59, Sec. 6, par. 1, first sentence of the Rules of Court]

General powers of a receiver
b. Funds in the hands of a receiver may be invested only by order of the
court upon the written consent of all the parties to the action. [Rule 59,
Sec. 6, par. 1, second sentence of the Rules of Court]
c. No action may be filed by or against a receiver without leave of the
court which appointed him. [Rule 59, Sec. 6, par. 2 of the Rules of Court]
d. A person who refuses or neglects, upon reasonable demand, to deliver
to the receiver all the property, money, books, deeds, notes, bills,
documents and papers within his power or control subject of or
involved in the action or proceeding, or in case of disagreement, as
determined and ordered by the court, may be punished for contempt
and shall be liable to the receiver for the money or the value of the
property and other things so refused or neglected to be surrendered,
together with all damages that may have been sustained by the party or
parties entitled thereto as a consequence of such refusal or neglect. [Rule
59, Sec. 7 of the Rules of Court]

Bonds required: Applicant’s bond and the adverse party’s counter-
bound
1. Applicant’s bond – Before issuing the order appointing a receiver
the court shall require the applicant to file a bond executed to the
party against whom the application is presented, in an amount to be
fixed by the court, to the effect that the applicant will pay such
party all damages he may sustain by reason of the appointment of
such receiver in case the applicant shall have procured such
appointment without sufficient cause; and the court may, in its
discretion, at any time after the appointment, require an additional
bond as further security for such damages. [Rule 59, Sec. 2 of the
Rules of Court]

Bonds required: Applicant’s bond and the adverse party’s counter-bound
1. Counter-bond - The application may be denied, or the receiver discharged,
when the adverse party files a bond executed to the applicant, in an
amount to be fixed by the court, to the effect that such party will pay the
applicant all damages he may suffer by reason of the acts, omissions, or
other matters specified in the application as ground for such appointment.
The receiver may also be discharged if it is shown that his appointment was
obtained without sufficient cause. [Rule 59, Sec. 3 of the Rules of Court]
Thus, the trial court has to consider the posting of the counter-bond in
addition to other reasons presented by the offeror why the receivership has
to be set aside [or why the application is to be denied]. [Vivares v. Reyes,
G.R. No. 155408, February 13, 2008]

Termination of receivership
Whenever the court, motu proprio or on motion of either party, shall
determine that the necessity for a receiver no longer exists, it shall, after
due notice to all interested parties and hearing:
a. settle the accounts of the receiver,
b. direct the delivery of the funds and other property in his
possession to the person adjudged to be entitled to receive them,
and
c. order the discharge of the receiver from further duty as such.
[Rule 59, Sec. 8, first sentence of the Rules of Court]
The court shall allow the receiver such reasonable compensation as the
circumstances of the case warrant, to be taxed as costs against the
defeated party, or apportioned, as justice requires. [Rule 59, Sec. 8,
second sentence of the Rules of Court]

Replevin
Rule Replevin 3
60
Definition 2
Sec. 3 Order 1

Rule 60: Replevin
Nature: Replevin
A writ of replevin goes one step farther than a writ of preliminary

attachment. By this writ, the property of the defendant is seized and
turned over to the plaintiff, whereas no such turnover to the plaintiff is
effected under a preliminary attachment. [It is] for this reason alone that
the grounds for the issuance of a writ of replevin are more stringent and
limited than those for the issuance of a preliminary attachment.
[Antonio Bautista, Basic Civil Procedure 156 (2009) 3rd ed]
Writs of replevin are issued for the recovery of personal property only.

Rule 60: Replevin
Requisites
For a writ of replevin to issue, all that the applicant must do
is to file an affidavit and bond, pursuant to Section 2, Rule
60 of the Rules.
The bond [must be] executed to the adverse party in double
the value of the property as stated in the affidavit. [See Rule
60, Sec. 2, par. 2 of the Rules of Court.]
A bond is not required if the applicant is the State. [Rule 60,
Sec. 7, par. 3 of the Rules of Court]

Rule 60: Replevin
Affidavit requirement
◦ The applicant must show by his own affidavit or that of some other
person who personally knows the facts:
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 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. [Rule 60, Sec. 2, par. 1
of the Rules of Court]

Rule 60: Replevin
Bond requirement
◦ The applicant must also give a bond, executed to the adverse party in
double the value of the property as stated in the affidavit
aforementioned, for the return of the property to the adverse party if
such return be adjudged, and for the payment to the adverse party of
such sum as he may recover from the applicant in the action. [Rule
60, Sec. 2, par. 2 of the Rules of Court]

Rule 60: Replevin
Re-delivery Bond
◦ If the adverse party objects to the sufficiency of the applicant’s bond,
or of the surety or sureties thereon, he cannot immediately require
the return of the property, but if he does not so object, he may, at any
time before the delivery of the property to the applicant, require the
return thereof, by filing with the court where the action is pending a
bond executed to the applicant (the redelivery bond), in double the
value of the property as stated in the applicant’s affidavit for the
delivery thereof to the applicant, if such delivery be adjudged, and
for the payment of such sum to him as may be recovered against the
adverse party, and by serving a copy of such bond on the applicant.

Rule 60: Replevin
Re-delivery Bond
Thus, the defendant is entitled to the return of the property taken under a
writ of replevin, if:
◦ he seasonably posts a redelivery bond;
◦ the plaintiff’s bond is found to be insufficient or defective and is not replaced
with a proper bond; or
◦ the property is not delivered to the plaintiff for any reason. [J. Florenz
Regalado, I Remedial Law Compedium 744, (2005) 9th revised ed.,
referencing both Sec. 5 and Sec. 6 of Rule 60]

Rule 60: Replevin
Implementation of the writ
1. Upon receiving such order, the sheriff must serve a copy thereof on
the adverse party, together with a copy of the application, affidavit
and bond, and must forthwith take the property, if it be in the
possession of the adverse party, or his agent, and retain it in his
custody. [Rule 60, Sec. 4, first sentence of the Rules of Court]
2. If the property or any part thereof be concealed in a building or
enclosure, the sheriff must demand its delivery, and if it be not
delivered, he must cause the building or enclosure to be broken open
and take the property into his possession. [Rule 60, Sec. 4, second
sentence of the Rules of Court]

Rule 60: Replevin
Implementation of the writ
3. After the sheriff has taken possession of the property as herein provided, he
must keep it in a secure place and shall be responsible for its delivery to the
party entitled thereto upon receiving his fees and necessary expenses for
taking and keeping the same. [Rule 60, Sec. 4, third sentence of the Rules of
Court]
4. If within five (5) days after the taking of the property by the sheriff, the
adverse party does not object to the sufficiency of the bond, or of the surety
or sureties thereon; or if the adverse party so objects and the court affirms its
approval of the applicant’s bond or approves a new bond, or if the adverse
party requires the return of the property but his bond is objected to and
found insufficient and he does not forthwith file an approved bond, the
property shall be delivered to the applicant. If for any reason the property is
not delivered to the applicant, the sheriff must return it to the adverse party.

Rule 60: Replevin
When property is claimed by third party
If the property taken is claimed by any person other than the party
against whom the writ of replevin had been issued or his agent, and
such person makes an affidavit of his title thereto, or right to the
possession thereof, stating the grounds therefor, and serves such
affidavit upon the sheriff while the latter has possession of the property
and a copy thereof upon the applicant, the sheriff shall not be bound to
keep the property under replevin or deliver it to the applicant unless
the applicant or his agent, on demand of said sheriff, shall file a bond
approved by the court to indemnify the third-party claimant in a sum
not less than the value of the property under replevin. [Rule 60, Sec. 7,
par. 1 of the Rules of Court]

-Compete against yourself, not with others.-

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PROVISIONAL

WITH UPDATES FROM:

Ancillary because they are mere incidents in and are

LEX PROVISIONAL REMEDIES

The need for provisional remedy may either be to assure

LEX PROVISIONAL REMEDIES

The court which grants or issues a provisional remedy is the

LEX PROVISIONAL REMEDIES

Jurisdiction upon the person or over the subject matter in a

LEX PROVISIONAL REMEDIES

Preliminary attachment – Rule 57

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Embezzlement such as:

(a) An action against a public officer who appropriated

LEX PROVISIONAL REMEDIES

(a) An action to recover property unjustly or fraudulently

LEX PROVISIONAL REMEDIES

LEX PROVISIONAL REMEDIES

(a) There is removal or disposal of property by a debtor; and

LEX PROVISIONAL REMEDIES

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(a)Summons could not be served personally;

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(b) Personal property capable of manual delivery – by taking and

(c)Stocks or shares – by leaving with the president or managing agent

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(e) Interest in the estate of a decedent – by serving the executor or administrator or

LEX PROVISIONAL REMEDIES

LEX PROVISIONAL REMEDIES

2. If it is shown that the writ was irregularly (wrong procedure) or

Similarly, discharge of attachment on these grounds can only be made

LEX PROVISIONAL REMEDIES

Where there is wrongful attachment, defendant may recover actual

LEX PROVISIONAL REMEDIES

Rule Preliminary Injunction 9

Sec. 4 Verified application and bond for 2

Sec. 5 Preliminary injunction not granted without 3

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a. Ex Parte TRO – 20 days (threshold: great or irreparable

LEX PROVISIONAL REMEDIES

LEX PROVISIONAL REMEDIES