PROVISIONAL REMEDIES –
Pauling Poleng
PROVISIONAL REMEDIES
Let us now go to Provisional Remedies.
For you to recall the 5 provisional remedies, I will
give you a Mnemonics. AIRRS. These are the provisional
remedies. But “A” does not stand for Attachment but
PRELIINARY ATTACHMENT. “I” does not stand for
Injunction, but for PRELIMINARY INJUNCTION. The first
“R” stands for RECEIVERSHIP. The second “R” stands for
REPLEVIN. And the last letter “S” stands for SUPPORT
PENDENTE LITE and not support. So lima lang.
Okay. Let me give you first a bird’s eye view on
the general characteristic of the entire provisional
remedies. And this basic characteristic and which we can
set as basic principle will help you answer problems on
provisional remedies.
1. Provisional remedies are precisely known as
PROVISIONAL because they are temporary in character.
But above all they are CONTINGENT AND DEPENDENT.
On what? Dependent on the PRINCIPAL ACTION.
Remove the principal action, the provisional remedy dies
by natural death. Kaya nga pagtitingnan niyo kaagad ang
provisional remedies, ang next question niyo, WHAT IS
THE PRINCIPAL ACTION? Kasi kung walang principal
action, then the provisional remedy is improper. Because
the provisional remedy, cannot stand on its own. It must
always be dependent upon the principal action.
So let us consider – PRELIMINARY ATTACHMENT
– what is the principal action in preliminary attachment?
It is a recovery action. It is either real or personal
property. Or it can even be a recovery of a right involving
personal property. See? Title to, possession of property.
Other than recovery action, then the provisional remedy
of preliminary attachment will not lie. It is always a
recovery action.
Take note that these provisional remedies also
apply in criminal cases and your rule 127 tells you about
the application of the provisional remedies in criminal
cases.
How about preliminary injunction? The principal
action there is INJUCTION. So it can never stay on its
own. It must always be attached to, dependent on,
contingent upon the principal action of injunction.
How about receivership? This is a misnomer.
Because a receivership is the PRINCIPAL ACTION. And
the provisional remedy is the APPOINTMENT OF A
RECEIVER.
How about replevin? There are certain cases that
confuses replevin as if it were a principal action. NO!
Replevin is the provisional remedy. It is the recovery of
immediate possession of personal property. What is the
principal action? The Principal action is the recovery of
possession of personal property thru the writ of replevin,
the applicant prays for immediate recovery of personal
property.
PROVISIONAL REMEDIES –
Pauling Poleng
Finally, Support pendente lite. What is the
principal action? SUPPORT.
Okay? So that is the first issue that you need to
consider. Kaya nga kapag binigyan kayo ng problem sa
provisional remedy, ang unang titingnan niyo, ANO BA
ANG PRINCIPAL ACTION DITO?
Kung wala kayong principal action, all others
pertinent to and in conjunction with provisional remedies,
they should die a natural death.
You are aware for example of the case of BISTER
MAYERS (?). In that case, the bonds were involve here,
sa injunctive relief. Nag file ng bond because of
injunction. Eh nanalo na, ayaw pa i-release ng korte ung
bond. Sabi ng SC, What is that bond for? Wala na yung
principal action. The bond is attached to the provisional
remedy and what are you doing with the bond? Why
can’t you release it? It has no legal basis to be there kasi
wala na yung principal action. Okay?
2. WHICH COURT HAS JURISDICTION OVER
THESE PROVISIONAL REMEDIES?
So that is easy to answer. Because they are
contingent and dependent upon the principal action,
what court which has jurisdiction over the principal
action, will have jurisdiction over the provisional remedy.
There are certain actions which are only
cognizable by the RTC. Therefore, the provisional remedy
attached thereto, is only cognizable by the RTC.
Generally speaking, you cannot apply injunction
with the MTC. Neither can you apply injunction before
the CA. Neither can you apply, (Original action ha!) with
the Supreme Court. But take note regarding the
hierarchy of courts. We discuss the fact that the SC is not
governed by the Rules. There are instances where the SC
take cognizance of these cases when it has even no
original jurisdiction.
Anyway, as to jurisdiction, one peculiar action
which is only cognizable by the RTC is SUPPORT.
Because support is an action not capable of pecuniary
estimation. It is immaterial as to the amount prayed for.
But support is only cognizable by the RTC because it is
an action incapable of pecuniary estimation. Therefore,
support pendent lite which attaches to the principal
action of support, can only be taken cognizance by the
RTC.
What is the exception? The exception is when the
action for support is in criminal case. You can include
support in a criminal case. When the support is included
in the criminal case, and the criminal action is cognizable
by the MTC, hence the support and prayer for support
pendente lite, will be cognizable by the MTC.
Example. SEDUCTION. Punishable only by
PRISION CORRECCIONAL. So up to max of 6 years. So
cognizable by MTC. If in your information for seduction,
PROVISIONAL REMEDIES –
Pauling Poleng
there is also a prayer for support, then the prayer for
support goes with it, hence cognizable by MTC. Hindi mo
na pwedeng hiwalayin yon because of the principle of
multiplicity of suits. See?
In fact, not support per se. Because support when
joined with criminal action together with other civil
claims, like for example, acknowledgment of a child. That
prayer for acknowledgment of the child will also include
an action for support, hence a prayer for support
pendente lite.
3. CLAIM FOR DAMAGES – In all provisional
remedies pursuant to Section 20 of rule 57, you can
apply for damages. What is the exception again? –
Support pendent Lite – here there is no claim for
damages, wala doon. At in lieu for claim for damages,
what is the replacement? RESTITUTION OR
REIMBURSEMENT.
So what are the basic requirements for provisional
remedies?
1. Affidavit of Merit;
2. Bond
Ano na naman ang XPN dyan? Support Pendente Lite.
There is no requirement for a bond. Very peculiar kasi
ang requirement for support and support pendente lite.
So these are salient characteristics of the
provisional remedies.
Rule 57 – PRELIMINARY ATTACHMENT
Principal Action: Recovery action (real/personal)
You always ask for preliminary attachment if it is a
BIG case. Kung ang kaso mo is collecting only 500k or
million, to my mind, is not advisable to apply for
preliminary attachment. Kaya yung mga nag-aavail dyan
ng PA, are bigtime lawyers or with bigtime cases. Kayo
yung mga tinatawag na abugado de kampanilya. Baka
nga abugado de kampana kayo eh! Pero after
graduation, you are only abugado tiling tiling – small bell.
HAHHAA. You will not be given big cases. You apply with
the lawfirm, ang unang kaso sigurong ibibigay sayo, BP
22. Pero maganda na rin yun. Or ejectment. Yan sa mga
bagong abugado. Don’t belittle these cases. Madali ang
remedies doon kaya yun ang binibigay sayo. (kwento
kwento)
Kapag 1 million cases lang, chances are it ends up
soon. Pwede ma-settle. Pero kung big cases, you file a
case against Lucio Tan or Henry Sy, ang claim mo ay
millions, ay better think of PA. Because before you know
it, baka wala ka nang ma-execute. So you won only your
case on paper. See? Palagi kang panalo sa papel, hindi
ka magaling na abugado sa Rule 39. Wala ka naman
pera. Edi dun nalang ako sa paisa isang panalo pero may
PROVISIONAL REMEDIES –
Pauling Poleng
pera.
Look at Section 1, at the commencement of the
action or at anytime before entry of judgment, one may
apply. For what purpose? To satisfy a favorable
judgment. Don’t miss one word there ha? One student I
ask this question, what is the purpose of PA? Sir, to
secure a judgment. PRELIMINARY ATTACHMENT WILL
NOT SECURE A JUDGMENT. If you want to secure a
judgment, talk to the judge.
Here, to secure the satisfaction of a favorable
Bjudgment. It is the satisfaction.
There is another purpose when we are discussing
jurisdiction OVER THE RES. When the action is a personal
action which requires the court to acquire jurisdiction
over the person of the defendant, and the court cannot
acquire jurisdiction over the person of the defendant, the
court may proceed the case provided the court can
acquire jurisdiction over the res or subject matter of the
action. This can be done through the application of a writ
of preliminary attachment. Hence, once the property is
under custodia legis, then the court can proceed even if
it cannot acquire jurisdiction over the person of the
defendant.
But there is an unwritten purpose of PA. Wala yan
sa Rule. Pero most lawyers avail of this because of its
effective means of forcing the defendant to the
settlement table. Kasi kapag mag-apply ka ng PA and the
property of the defendant are attached, di ka na
makakilos. Di ba? Wala ka ng magagawa sa property mo,
they are in custodia legis. So ano pa gagawin mo?
Suppose you are a big businessman. And you
have many properties, stores known as SM. You were
able to attach one of the sari sari store of Henry Sy, SM
North. Si Henry Sy, magpipilit yan na pumunta sayo. So
magkano ang gusto mo? You have the claim of 2B,
pwede na bang 200 million? This is a way to force the
defendant to came to the settlement table. Mas lalo na
kapag he is a middle class businessman. Ang business ay
within the vicinity of 20-30M. Halimbawa, selling of
merchandise and you were able to attach the
merchandise, ano pa gagawin niya? So he will settle. This
is the unwritten purpose. The written purpose is there –
to secure the satisfaction of favorable judgment and to
acquire jurisdiction over the rem. So if the action is
personam, shall now be converted into action quasi in
rem. Therefore, you can proceed even if the court cannot
acquire jurisdiction over the person. These are written in
the Rule.
But not all instances can one apply or avail of PA.
You are limited only to the 6 grounds. And the
enumeration of the 6 grounds in Section 1 of Rule 57, is
exclusive. Anim lang yan. Familiarize yourselves. Outside
of that, you cannot apply for writ of PA. Madaling
tandaan because the 1st three are with regard to the kind
of action.
PROVISIONAL REMEDIES –
Pauling Poleng
- An action of recovery of a specified amount of
money or damages other than actual damages,
when the defendant is about to leave in fraud of
creditors.
- An action ulit, for
- Pangatlo, action ulit.
Tingnan niyo ung pangapat, lima at anim. They refer to
situation of the defendant. Yung pang apat halimbawa.
An action against a party guilty of fraud in contracting an
obligation or in the performance of thereof. Panglima, an
action against the person who disposes of the property in
fraud of creditors. And last ground, where the party
defendant cannot be found in the PH or the summons
upon him may be done thru publication. So I refer you to
what we discussed under Rule 14 regarding Sec 14 and
16. These are the grounds for summons thru publication.
So in that instance, where the party may be
summoned only thru publication, then that is a ground.
What do you notice here in Sec 1? ABCDEF – it only the
last which does not include FRAUD. The common
denominator therefor, for application of writ of PA is the
element of FRAUD/DECEIT, panloloko. Except the last
one.
Go to Sec 3 – that is about affidavit and bond.
These are the 2 principal requirement in one’s application
for writ of preliminary attachment. Affidavit and bond.
We discussed early this morning, the affidavit of merit.
You recall while we are discussing Rule 37 (Motion for
New Trial) when your ground is Fraud and there is a
requirement for affidavit of merit, it is again repeated
here. That if your ground has that element of fraud, it
requires and AFFIDAVIT OF MERIT. Because in relation
to the rule particularly manner of making allegations in
the pleading particularly Rule 8 of ROC, fraud must be
stated with particularity. It is why it requires an affidavit
of merit.
But in your affidavit of merit, take note of the 4
requirements under section 3. These are the very
requirements in applying for a writ of PA.
1. There must be a valid cause of action – clearly I have
discussed it already. What is the valid cause of action?
PRINCIPAL ACTION! Because if there is no principal
action, there is no provisional remedy.
2. There must be a ground – which is specifically
provided in Sec 1 of Rule 57. So you are limited only to
the 6 grounds. Kung wala yun, you cannot apply for PA.
3. There must be no sufficient security – kasi kapag may
security, you ran after the security. Suppose there is a
loan that is secured, you ran before the property
mortgaged. Therefore, you do not have to attach
anymore to secure the satisfaction of a favorable
judgment.
4. The value or the cost of the property or the subject
matter of the action must be atleast equal to the
property attached less than all other counterclaims. So
PROVISIONAL REMEDIES –
Pauling Poleng
that if the value of the claim is 1M, you are supposed to
attach a property atleast worth 1M. But it does not mean
that you can attach only 1 property.
Suppose the property of the defendant is worth only
200k. But he has 5 properties and 200k each that is 1M.
So attach the 5 properties. But suppose that he has only
1 property and that it has been attached or subject of an
attachment worth 1M and the property is also 1M. Can
you still attach that? HINDI NA! Kasi wala nang i-co-
cover.
So this must all be stated or alleged in your
affidavit of merit. Remember the exception in your
affidavit – if in your very pleading there is a particularity
in your allegation, then your affidavit of merit may be
dispensed with.
Finally – BONDS – how much should the bonds
be?
GR: Discretionary upon the court. But the court
now will have to determine according to the value of the
claim or property sought to be attached.
Okay? Once the property is attached, then it
becomes in Custodia Legis. The only way to have it lifted
is pursuant to Sections 5, 12 and 13. These are the only
sections that are the available ground for the discharge
of the writ of PA. Discharge or lifting.
PART 12
This is settled already as early as in the case of
Mindanao Savings Lite case, it can be granted ex parte.
But cannot be implemented without prior or
contemporaneous service of summons. So in this
particular case, the attachment was properly issued but
could not be properly implemented. So that is the case of
Mangunilla vs CA. In the case Mangulla, which was asked
in the bar, the case here, PA was implemented without
service of summons. But the failure to serve the
summons was because the def was already abroad. And
very clearly, when there is no possibility of service of
summons, it can be implemented. Kaya nga there is
contradiction. But if you try to analyze correctly the rules,
you will find out that the court is merely construing one
thing there – where it says “earnest efforts”. So that the
writ may be implemented even if there was no prior
contemporaneous service of summons if there earnest
efforts to serve it personally. Dito sa case na to, wala.
The implementation was considered invalid.
In connection with the enforcement of the writ of
PA, plaintiff’s counsel secure 3 affidavits of witnesses
sworn before the notary public who was not
commissioned by the Office of Clerk of Court of RTC
Manila, the 3 different affidavits have only 1 document –
page number – what crime is committed by the counsel?
Ang layo ng question ano? Kung PA tapos crime pala
(Ang saya ni Atty. Brondial) The one who is liable here or
the crime committed here was in violation of notarial law.
But as to the one who presented it, having it notarized,
PROVISIONAL REMEDIES –
Pauling Poleng
then it is using a fictitious or fraudulent affidavits. This
amounts to that because it is not duly subscribed and
sworn to. Using it in proceeding – that is the time that
the crime is committed.
Are bank employees authorized to implement a
writ of replevin without serving summons to the
defendant when the bank employees are accompanied by
the sheriff? NO! Bank employees are never authorized to
implement the writ of replevin. Hindi ito summons ha.
We said, who may serve summons? Sheriff, Deputy
Sheriff and other persons authorized by the court. Writ of
replevin ito! This can only be served by the Sheriff or
Deputy Sheriff or any authorized. But bank employees
cannot be authorized to implement the writ of replevin.
Because once the sheriff takes custody of the property
subject of replevin, it is under his charge completely. Hao
VS ANDRES is the case there. The bank filed an action
for recovery of sum of money. With an application for
writ of replevin with RTC Pasay. But the car was sold at a
public auction at the Caloocan City RTC, was there
irregularity in this procedure?
You know, the writ of replevin can be implemented in
any part of the country. So you may get the writ of
replevin in QC, you can implement that where you may
find the subject property. Halimbawa itong motorsiklo,
you applied for writ of replevin. These are the objects
that can easily be moved.
There is no such thing as sale of the … ito you take
possession of the property on the ground that he is
entitled to possession… But the car was sold in Public
Auction. Auction pinaguusapan ditto. Unang una, why are
you going to auction the car subject of replevin? You
don’t auction that. You take possession. When your
possession is now complete, ahhh you can sell it. Not
anymore through public auction. This is not subject of
public auction.
Yun so you can have more question. Pero to
elucidate, iderecho mo sa topic natin. Not for me. Sakin
okay lang.
The case of Chuijan vs SB is a must reading. Of
you want to understand PA, it cannot help but read that
case. The doctrine laid down there is repeated recently in
the case of Torres vs Satsatin. Pero mas maganda
basahin niyo yung Chuijan kasi nung mangyari yun, hindi
pa kayo pinapanganak. This is a case of Chuijan who is a
Marcos Cronies who was able to secure a loan in the
amount of millions who brought the money to US and
applied or invested it in business in Silicon Valley. At the
time it was in the early 80s. That was the instance na
naguumpisa palang ung IT. Wala pa dito yan sa PH. Si
james bond lang ang meron non, sa America naguumpisa
nay un. So he invested. He was not able to pay his loan.
The bank here filed a case against him, before the San
Mateo Court of California. And it ended up with a
compromise agreement. The compromise agreement is
that, Chuijan with retained certain amount of money in
PROVISIONAL REMEDIES –
Pauling Poleng

terms of Letters of Credit which he can withdraw at 100 that sec 13 is not AVAILABLE for you as a ground for
thousand US$ per month. That was the LC. 1986 came lifting the writ of PA. Why?
and yellow army won. There was change of govt. EO1
Sabi ng SC – if we discharge the writ because of
and 2 was the creation of PCGG to ran after the Marcos
sec 13, we are therefore saying that you did not commit
Loot or the ill-gotten wealth and his cronies. So several
fraud and the principal action is grounded on your
cases were filed in SB for these ill-gotten wealth against
alleged commission of fraud and that is the same ground
the marcoses and Chuijan which is one of the cronies,
used for the issuance of the writ of PA. So that if we
finile-an din ng kaso for recovery of LC in the bank.
grant your petition, in effect, we are deciding a case
Ngayon, the OMB filed an application for writ of PA with
through a mere motion which is going through the
SB praying that the LCs be attached on 3 particular
backdoor.
grounds: par c, d and f. The most potent of which is the
fact that Chuijan is not here in the Country but in US and Di ba sinasabi ko na kanina? Principal action and
according to the complaint he is guilty of fraud. Kaya nga provisional remedies. That provisional remedies cannot
the SB granted the PA. So these LCs were attached in live on its own. So itong doctrine na ito, which holds up
favor of Republic of the PH. to now, reiterated lately in Torres vs Satsatin, sabi ditto –
kung ang ground ng principal action and the ground ng
Several years after, when the weather was already
provisional remedy ay pareho, you cannot have it lifted
good, political weather, bumabalik na ung mga cronies.
by availing of sec 13. Kasi we will say that there is no
Lahat. Bumalik na rin si Chuijan. Pagbalik niya, one of his
valid ground. And if we will say that there is no valid
first acts was to go to the SB and move to discharge the
ground, hence there is also no valid ground for the
writ of attachment. He said your most potent ground no
principal action. Hence, we are resolving the principal
longer holds. Why? I am here in flesh and blood. He
action through a mere motion. Hindi pwede yan! It is
questioned the attachment saying I am not guilty of
even more than a collateral attack. The result is
fraud and there is already compromise agreement in US
dismissal.
court. What did the SB do? The SB denied his motion and
went up to SC. As advised, had you really wanted it lifted, you
could have used sec 12. A counter bond.
He was using sec 13 of Rule 57. Motion
questioning the regularity and propriety of the So this is PA. Sections 5 and 12, pareho yun.
attachment. The SC denied the petition/motion saying Counter bond. Where lies the difference? In section 5,
PROVISIONAL REMEDIES –
Pauling Poleng
the writ has been issued but not yet implemented. So
you post a counter bond. In sec 12, the writ has already
been implemented, so you have it lifted. Okay. Time
frame lang ang distinction.
Section 20 is quiet important. This is a claim for
damages. As we go on with the Rules or other
Provisional remedies, you will find out that Sec 20 is
cross referred to other provisional remedies except
Support pendent Lite.
Tatandaan niyo itong writ of preliminary
attachment. Gamitin niyo ito. Parang sigurado na.
RULE 58 – PRELIMINARY INJUNCTION
Is attached to principal action of INJUNCTION.
And injunction is generally cognizable only by the RTC.
GR. On special situation, the CA may also grant together
with the other issues of the case a writ of PI. You know
when you applied for certiorari or prohibition halimbawa,
or mandamus, you also have injunctive relief, so that
certiorari, injunction and prayer for preliminary
injunction.
But whether it is stated in the title that there is
injunctive relief, you can always apply for PI. As a
provisional remedy. What are the requirements? Just
remember the elements of the cause of action. And the
elements of the cause of action are the element in an
application for the writ of PI. Namely:
1. there must be a right in ese on the part of the
applicant;
2. this right has been violated or is threatened to be
violated; and
3. from its violation, t will result to a irreparable damage
or injury.
These are the 3 requirements in order for one to
apply for PI.
Writ of PI can never be granted without NOTICE
AND HEARING. Kailangan palagi i-set for hearing and the
other party must be duly notified of one’s application for
writ of PI.
There are 2 kinds of injunction:
1. PROHIBITORY – seeks to maintain the status
quo
2. MANDATORY – seeks to return to the status
quo
What is the status quo? That is the last peaceful
undisturbed situation.
So kapag gusto mong balikan yun, apply for
mandatory. Kung hindi pa nadidisturb but is about to be
disturbed, apply for prohibitory injunction. The common
denominator, when is the last peaceful undisturbed
PROVISIONAL REMEDIES –
Pauling Poleng
situation? And when I come to this, I always give this
example para hindi niyo nakakalimutan. If you go home
tonight and you found your house tonight in darkness
because meralco cut your electricity, you apply for
mandatory injunction. Let there be light again. But when
you go home, you met the katulong, sabi kuya, ito po
meron ako hindi naintndhan na sulat ditto, pag basa mo
– notice of disconnection. So puputulan ka na. Nagalit ka.
Sabi mo, kunin mo nga yung resibo dyan! Bayad tayo!
But your legal means is apply for a writ of prohibitory
injunction. You want to maintain light in your residence.
If you belong to a family who is landed and
mayaman masyado ang pamilya niyo. Halimbawa yung
nanay at tatay niyo, nagpaplano. Ibenta na kaya natin
mga ari-arian natin? Narinig mo. Tay nay! Wag niyo
gagawin yun, paano naman kami? Hindi! Ibebenta na
naming. Sabi mo, pag tinuloy niyo yan I am going to
apply to apply for a writ of prohibitory injunction! You
cannot sell that! Do you have the right to do that? NO!
YOUR RIGHT IS INCHOATE. So the first requirement for
PI, is you must have a RIGHT IN ESE. Which is actual,
subsisting and substantial right. Not futuristic.
Because the PI, can never be granted ex parte. It
always require a hearing. But you know the writ calls for
immediate action. Nag-a-apply ka dyan because there is
a threatened violation. Kaya nga nagaapply ka. So the
rules provide you with the tools. What are these tools?
The TRO! The infamous TRO? Haha. The source of
judicial corruption. But legally under Rule 58, an
application for TRO can now be granted ex parte. Sadly.
Why? Dito ang abuso, but that’s what the rule says. Pero
prior, there was a distinction that a TRO of 72 hours can
be granted ex parte but not a tro of 20 days. It requires
summary hearing. But the present rule now does not
make any distinction whether 72 hours or 20 days, it can
be granted ex parte. The rule says it “can” not it should
be granted ex parte. It is still discretionary upon the
court whether to grant TRO. 37:12
If the court decides to grant the TRO of 72 hrs,
the TRO immediately takes effect from the issuance. If
what is granted is the 20 day TRO then it is effective
upon receipt by the party of the TRO. If the court grants
the 72 hr TRO and then extends it at the hearing, the
extension cannot be more than 17 days because the
maximum TRO is only 20 days. Any TRO extended
beyond the 20 day period is GAD. If not ignorance of the
law. The white castle case vs judge panis.
The max period that can be granted by the court
of TRO is only 20 days. There is no need for the court to
be reminded. No need for any motion or manifestation by
any party because the court can never extend the 20 day
period which is non-extendible.
However, if the one granted is the 72 hrs it can
end at the 72 hrs but the court can extend that but
extension is only for 17 days. Making the total TRO only
20 days so it is 72 hours + 17 days = 20 days. Hindi 20
PROVISIONAL REMEDIES –
Pauling Poleng
+ 3, mali yun. Hence, 20 day TRO which originated in
the 72 hr TRO, takes effect upon issuance. Kuha niyo? So
whether you receive a copy or not, the period of 20 day
starts to run. However, if the court grants immediately
the 20 day TRO, it takes effect upon receipt. Then this is
the rationale behind 72 hrs and 20 days. Why did the sc
said 72 hours? Because it is equivalent to 3 days. So that
if effective from issuance, even if it is issued on a Friday,
then you can still hear the motion or the TRO on
Monday. 3 days. Issued on Friday – 3 days. Counts
Saturday (1) Sunday (2) Monday (3) for the court to
decide whether to extend it or not.
Now why is it 20 days? Because 20 days is
practically 3 weeks. 3 hearings for the court to determine
whether to grant PI which was preceded by the 20 day
TRO which should be heard.
Because of the circular, sec 5 of rule 58 no longer
applies. Kasi under that, there is distinction between a
single sala court and multi sala court. If you file it with
multi sala court, the rule provides that the case must be
raffled. The rules is very stringent on that the parties
must be notified on the raffled date. Dati yun. No longer
applicable in the present dispensation. Ok. Wala na
ngayong raffle considering that it can be granted ex
parte. But as I said, it can be granted. So that if the
judge so decides to hear an application for TRO, he may
not commit GAD. He can do that.
So this is the rationale behind this TRO.
In your textbooks, there are several concerns
there regarding application for TRO which is not allowed
in some cases. Kaya dismiss agad kasi this subject matter
is beyond TRO. GRule. In your TB, dami situations dyan.
But the most recent one is of course, infrastructure
projects of the govts. Prosecution. Collection of taxes.
Labor cases. Expression of constitutional rights. Peaceful
assembly. So many more.
GR on injunction: that which has been done
cannot be undone. Remember on the mandatory, kung
kaya mo ibalik, then apply for mandatory injunction. So
kapag ikaw nagasawa na, you cannot undo that
anymore. 
When I was saying non extendible 20 days, it
refers only to the RTC. When applied from and granted
by the CA, that is 60 days. But again that is not
extendible. Hanggang doon lang. Ano ang palusot dyan
ngayon? Status quo ante order. It is by agreement of the
parties. Judge is quiet safe so he will not run afoul.
If it is granted by SC, it is practically injunction,
kasi until further notice. So kapag nakakuha ka ng
injunction sa SC, practically, nakuha mo namain action.
To order that such is permanent. When it becomes
permanent, it means that you won already the principal
action of injunction.
RULE 59 – RECEIVERSHIP
You only have to remember three things when you
PROVISIONAL REMEDIES –
Pauling Poleng
can apply for receivership. Oh I told you pala that the
principal action is receivership and the provisional
remedy is appointment of a receiver. This state of
receivership may terminate and so the principal action
ceases to be. Tapos na. But it is for the appointment of a
receiver. For your guidance, tandaan niyo lang ang three
words. And you will find that on the last part of section 1.
- Preserving
- Administering
- Disposing of property
Of all provisional remedies, it is the appointment of a
receiver which has the longest time frame. Ito ang
pinakamahaba sa lahat ng makapag-apply ka for
receiver. In 57, ano yung time frame? At the
commencement of action but before entry of judgment.
After that? NO. pag dating sa injunction, at the
commencement of the action but before the final
judgment. In 59, one can apply for the appointment of a
receiver even after judgment or in the stage of
execution. Ito pinakamahabang duration.
Of all kinds of action, it is in Receivership that the
exercise of residual jurisdiction is at its best. Kasi the rule
specifically allows the application in the trial court even if
the case is already on appeal. Altho that is not
mandatory. But if you apply for receiver in the appellate
court, the appellate court can remand your application.
On what ground? In the exercise of the residual
jurisdiction again.
What are the grounds? Kung tatandaan mo lang
ung “PAD” kanina nay un, alam niyo na ang grounds. I
mean the reason. Why there should be one to be
appointed as a receiver? Because it is not as to preserve,
but the property is dissipated, being lost or wasted.
Maladministered. Like in the case of executor. Hindi
ginagawa yung trabaho niya.
Finally the disposition. The executor now is in the
last stage of settlement. Rule 90 na. Yung suntay vs
cojuangco-suntay.
This abused your mind that it is only in replevin
that there is a bond twice the value of the property. Here
in receivership dalawa rin ang bond. Upon application in
order to be considered by the court. Hindi pa inaappoint,
you already have to post a bond. For what purpose is
that? Damages might gave incurred thru your
application. And as an applicant you are not sure if you
will be appointed or not. If the court appoints someone
other than the applicant, then the one appointed must
again post a bond. So dalawa yan.
Suppose the applicant is the one appointed,
should he post another bond? That is now subject to the
discretion of the court. The court may just ask for an
increase or consider the bond posted to answer for
whatever damages. You might ask, what are the possible
damages? – take note na ditto sa appointment, ang usual
subject are financial institutions. Mga banks.
Rehabilitation. Pag nagkapply for the appointment, that
PROVISIONAL REMEDIES –
Pauling Poleng
application alone may entail damages kasi you are
putting the bank into gloomy situation.
Banco Filipino – placed under receivership and
lately it was revived. Tapos receivership. Nagkagulo gulo
na.
So nagapply ka palang may possible na damages
na. Sino ba magdedeposito don.
Do you recall the case of Alemars, before the
National Bookstore it is now, ang pinakasikat na
bookstore ay Alemars. Ano nangyari yan? It was placed
under receivership and little by little nakuha ng mga
employees.
There is sec 6 of rule 59 – important. Familiarize
yourselves with the rights and obligations of a receiver,
The case of larrobis vs Phil Veterans Bank, has not been
asked in the bar yet. This is a landmark case in
receivership. Spouses Larrobis secured a loan from def.
Then they were unable to pay and so PVB send the first
demand letter. Answered the letter, PVB was placed
under receivership. During that period they did not
pursue the case against Larrobis. Then later on they
were placed back under good condition and started to
operate again. But when they started the operation, they
found out that there are several loans which are unpaid.
They wrote again demand letter pero hindi inintindi ng
Larrobis. What PVB did was to file a case against spouses
Larrobis. What was their defense? Prescription. PVB said
no, it is beyond the 10 year period but take note that
beyond that, 5 of that we were under receivership so
how could be have collected from you? So it was tolled
from running.
SC: NO! pursuant to sec 6 of rule 59 because
among the duties of the receiver is to collect debts. In
fact, when the bank is placed under receivership, it is
precisely to rehabilitate the finances. So one way to
collect debts. And if you collect debts, how can you be
rehabilitated. What you are prohibited from doing is to
invest again to accept credits/deposits. Therefore, the
Larrobises lived happily ever after.
Let me mention also the case of Coruga vs
Arsenas. Isa lang ang doctrine ditto. Ito tatandaan ninyo.
Any application for receivership over financial institution
is exclusively cognizable by the monetary board of
central bank.
Chavez vs CA – ito ung isang abugado Myron
syang property sa sorsogon. She was practicing here in
Manila. So yung properties niya used to remit proceeds
later on hindi na nagreremit. Finile-an niya ng civil case
with application for appointment of receiver. With
DARAB. Tapos criminal case with appointment of
receiver. Sabi ng kalaban, bakit tatlo tatlo lahat may
application? The issue is, can that be done? YES! There is
no prohibition. Why not. Application lang ito. It all
depends upon the court whether to grant it or not. So
far, wala pang naggrant naman.
PROVISIONAL REMEDIES –
Pauling Poleng
RULE 60 – REPLEVIN
Ito malimit ito itanong. What is the principal action
for replevin? The principal action for replevin is the
recovery of possession of personal property. Under score
two words. It concerns only PERSONAL PROPERTY and it
is only about POSSESSION. This has nothing to do with
ownership and real property. Replevin is the IMMEDIATE
RECOVERY OF THE POSSESSION OF THE PERSONAL
PROPERTY.
When can you apply writ of replevin? You can only
apply for writ of replevin before the answer is served
upon the respondent. Or filed. Filed yan upon the court.
Why? What is the effect of filing of answer? The
issues are joined. And If issues are joined, there is now a
justiciable controversy. Because each party has already
its own position. So before answer is filed kasi wala pang
defense. Pero kung meron na ung defense… what is your
ground for asking for replevin? You are entitled to
possession of the personal property or is that you are the
owner of the property.
When you filed a complaint accompanied with a
prayer for replevin, the only basis of the judge whether
to issue or not to issue, is the pleading or the complaint.
Okay? Without even hearing the side of the defendant.
Kasi simply based on the complaint.
If answer is already filed, sasabihin ng defendant:
no, he is not entitled to possession of the personal
property, He is not the owner! I am the owner of the
property. So issues are joined. So the court can no
longer grant the writ of replevin. He has to decide who is
really the owner. Kaya before answer.
To whom the writ of replevin is issued? It is issued
to the SHERIFF. So kukuha sya doon, and whoever has
the property, he takes it into actual custody. Remember
that this is personal property. The best example as an
object of replevin is that of a car. In fact, the cases for
replevin there is involving a car.
Consider this situation. Everybody now is buying a
car. Here is Mr A who bought a car, CRZ, worth 1M. Pay
100K amortization. You keep on paying the amortization.
But for one reason or another, you stopped paying.
Pagdating ng mga 3 months na hindi ka nakabayad, baka
makatanggap ka nalang ng writ of replevin. Kung
makakatanggap ka lang naman. Kasi nung una tuwang
tuwa ka, pinapirma ka ng dealer. Chattel mortgage. After
giving to you the possession of the car, you mortgaged
the same car thru chattel mortgage law to the seller of
the car. Yung mga print doon, napakaliliit. Hindi mo nga
mabasa. Sigurado yan na isa sa provision there is: the
right of the mortgagee to judicially or extra judicially
foreclose the mortgage.
So hindi ka nakabayad, the dealer would go to
RTC then it would file either a foreclosure or simple
recovery of the car with prayer for replevin. Ang basis
niya: we are still the owner of the car. Considering that
PROVISIONAL REMEDIES –
Pauling Poleng

the fee is not paid, we are entitled to the possession. So
writ will be issued in favor the dealer then it can get the
car anywhere it may be found. Anywhere it is found.
Ngayong tingnan niyo mabuti, tama ba ung bond
na pinost ng applicant for the writ. Kasi the bond must
be twice the value of the property. If you bought that car
for 1M and it was sought to be recovered through
replevin, the dealer will have to post a bond for an
amount of 2M. Is this not foolish? Halimbawa individual
ito, why would I post a bond twice the amount of the
property. I might as well buy a new one.
HINDI YON! Legally, try to read between the lines
of the rule. First 1M answers for the car. The second
million answers for damages. Because if the car can no
longer be recovered, then the amount will be paid to the
property. But look at the judgment there. The action
must be in alternative. You cannot get the car and
recover the value of the car. Otherwise, it is unjust
enrichment. This is the case of Orosa, that is a leading
case.
Bumili ng sasakyan si Mr Orosa, nung panahon na
uso yung ford escort. Bumili sya niyan. Not for himself
but for his daughter who is married to Joey Concepcion.
Sino naman yan? Ung airconditioning man. Mayaman din
yan. Nakaligtaan ni Mr Orosa na magbayad – allegedly –
for July to November. And so a writ of replevin was
issued against him by the motor dealer. This went on.
Then he was able to establish that he has really paid. He
recorded it properly. So he sought for damages. May
damages ito. Hindi naman ito para sa akin. Para sa anak
koi to. Itong anak ko na ito, married to Concepcion. Ano
nalang sasabihin ni Kumpadre. You besmirched my
reputation etc etc. Is that possible? Under Sec 20, pwede
yun. But the error here was that the judge ordered the
return of the car and if the car can no longer be
returned, return the value of the car which is secured by
the bond.
Sabi ng Supreme Court, hindi pwede yun! Kasi this
was bought in installment. So kapag binalik mo yung
buong value ng sasakyan, edi kumita si Orosa! Di ba?
Hindi pwede yan. Tama yung CA according to SC, na
either you return the car or not the total value of the car.
Judgment here must be in alternative.
One point here in Sec 7 which we already studied
in Sec 16 Rule 39, and sec 14 rule 57, ano ito? Third
party claim. In attachment, meron third party claim. Dito
the third party claim issue is repeated. What is this third
party claim? After the writ of replevin has been issued
and there is a third party claimant, the same provision.
The sheriff must inform the applicant or the plaintiff
about the claimant, and the applicant would have to post
a another bond equivalent to the value of the car, to
answer whatever damages may be inflicted upon the
third party claimant. So this is.. pareho rin sa Rule 39 at
Rule 57. It is not the third party claimant who posts a
bond.
PROVISIONAL REMEDIES –
Pauling Poleng

Here in replevin, if you are asked, in what instance the period of 5 days. Maghihintay ka muna na magpost
in the ROC may a person be obliged to post a bond thrice ng redelivery bond. It is only after 5 days. Kung walang
the value of the property? In replevin. Kasi you are asked redelivery bond, edi ibalik mo.
to post a bond twice the value of the property and if
How much is the redelivery bond? Twice the value
there is a third party claim.
of the property. So secured while the case is being
The other reason why twice the value of the heard.
property, kasi magiisip yun, napakasakit naman nito.
RULE 61 – SUPPORT PENDENTE LITE
Remember that this is just a surety. Hindi ka naman
magpopost ng cash bond ditto. Kalokohan yun. Ang Jurisdiction: RTC
binabayaran mo lang doon is the premium. Now the
Why? Because the personal action is support
premium is from 3-10%. 3- min. 10-max.
which is not capable of pecuniary estimation.
When they are able to recover the car, halimbawa,
XPN: Criminal cases because the civil aspect is
6 month old, pwede nila ulit ibenta yun. They can sell it.
deemed instituted in the criminal action which may be
Consider as a 2nd hand car. Kaya nga yung isang kaibigan
cognizable by the MTC.
ko sa motor company, wala nang araw na ginawa ng
diyos na hindi ako nagappear for replevin. Araw araw Illustration: A very common case of a support
nalang. pendente lite is in the case of an unwed mother through
excusable negligence (hahahaha). When you give birth
The counterbond here to lift the writ of replevin, is
out of a wedlock that is excusable negligence. But if it
otherwise known as REDELIVERY BOND. That is the
happened the second time around, gross negligence.
counter bond and settled is the rule that the bond must
be posted within 5 days from seizure of the property. Derick & Cristine. (patay sindi na-meet) Here is
Derick isang taxi driver. Dala ng dalaw sa isang videoke
Kaya nga yung sheriff which takes possession of
bar na nandun si Cristine as waitress. Sa kakasundo kay
the car under the writ of replevin will have to keep that
Cristine, nangyari yung inaasahan. Nagkaroon sila ng
within the period of 5 days not to deliver that to the
bunga ng kanilang matamis na pagtitinginan. Dati si
applicant. As early as Yang vs Valdez. But the latest case
Derick nagbibigay until finally naglaho nalang ng parang
is Hao vs Andres. Dito pinagalitan at pinenalize yung mga
bula pero alam niya parin kung saan nakatira. So si
sheriff for delivering the property to the applicant within
Cristine nag-file ng support with prayer for support
PROVISIONAL REMEDIES –
Pauling Poleng
pendent lite before the RTC.
Ano ba yung 2 fundamental allegations?
1. The need for support.
2. Capacity to support.
Upon filing, then the notice must be immediately
be served within the period of 5 days. Under the rule.
And upon receipt 3 days – There must be a hearing.
Whether there is an answer or comment, there must be
a hearing on the PROVISIONAL REMEDY.
So pagdating doon sa hearing, sabi ni Derick, I
deny the accusation because I am not the father of that
child. So denied ung paternity. Kung maalaala mo, sabi ni
Derick, I was with Richard when that happened. Lasing
na lasing na kaming dalawa, nagising nalang ako, kayong
dalawa ang magkatabi. So that child is not my son. That
is Richard’s son. May denial.
Now suppose that denial happened already in the
principal action for support. And the court has already
given support pendent lite in the amount of 10k a month.
So 10k while the case for support is pending, Derick
gives 10k a month. Umabot yung kaso halimbawa ng 10
months. He has already given to Cristine 100,000. So on
the hearing of the support, the Judge favored Derick
saying ah you were able to establish that you are not the
father.
Question: What happens now to the 100K?
Answer: Under the Rule, there are 2 remedies.
Isa, RESTITUTION and the other is REIMBURSEMENT.
Ano yung RESTITUTION? Cristine will be ordered
to return the 100k to Derick plus interest.
Is that Harsh? No! According to the law it is not.
And in fact, it is a realization that a person is becoming
or improves himself. At that time she was asking 10K
because he does not have money but through the
months she was able to sustain the child and herself
because she found a better job. Ngayon she is working
at Pegasus. She has improved. Or at Cremlin or
Classmate or Circus. Alam na alam niyo yun. Araw araw
nadadaanan ko yan. Pero hindi ako nahinto kasi may
review pa bukas.  So wag. Siguro next Saturday. HAHA.
So that is a recognition that a person is not static.
So she can improve.
Suppose, she cannot pay. REIMBURSEMENT. Who
reimburses? Richard. Richard who is liable. But how do
you go about it? Automatically ba yan? NO. Because the
court has no jurisdiction over the person of Richard.
Under the Rule it says IN A SEPARATE ACTION. If in the
course of the proceedings and it was Derick who has
been giving and he pleaded Richard, pwede siguro yun in
the same proceeding. But you can do that in a separate
action.
MY POINT IS THAT THESE 2 REMEDIES ARE
SEPARATE AND DISTINCT FROM EACH OTHER.
PROVISIONAL REMEDIES –
Pauling Poleng
RESTITUTION AND REIMBURSEMENT. The restitution
must come from the person who received the support
pendent lite and the reimbursement must come from
other person who is bound or obliged to give support just
like in this illustration.
We have some cases here De Asis vs CA. The child
of De Asis went to court and ask for support and support
pendente lite. Dineny ni De Asis. I am not the father of
that child. Na-realize ng babae, ay baka nga hindi sya. So
she said, let us just compromise. We compromise to
dismiss the case. So that was dismissed due to joint
dismissal. Several years later nagfile uli, siguro
napatunayan niya, Sya talaga yung tatay eh. Kung paano
niya napatunayan, hindi ko alam. Siguro nagtanong sya
sa doon sa isang pinagsususpetchahan niya. Eh paano?
Baog ako eh! Hindi pwede. Talagang kay De Asis yan.
Ang nangyari, De Asis said, you cannot file that
anymore because I invoke res judicata. When it reached
the Supreme Court, the SC said, a judgment for support
NEVER BECOMES FINAL! That is a peculiar characteristic
of support. In fact, the order granting support pendent
lite is an interlocutory order. But even if it is an
interlocutory order, it can be subject of a writ of
execution. Special character din yan ng support. Res
judicata will not apply. And the SC held that even support
under the civil code is not subject to COMPROMISE. It
cannot be compromised but procedurally a judgment for
support never becomes final. Even if there is already a
final judgment for support, parties can always go back to
court. And by mere manifestation, parties can ask for the
amendment of the judgment. At anytime. In the course
or even after the judgment.
Kaya nga the 2 important requirements for
support which are the capacity of the person to give
support and the need, these are very important because
you can always go back to the court and ask for the
amendment of the judgment. See?
And that is two way ticket yon. Not only on the
part of the plaintiff but also on the part of the defendant.
So the plaintiff goes back to court and said your honor,
the support that you giving me is 10k abnd hindi na po
kasya yun kasi ung anak is already in HS. What is 10k a
month kulang na po yun. We can to increase it in 15k. So
the court may amend.
On the otherhand, if the defendant goes back to
court, your Honor, yung 10k po hindi ko na rin po kaya.
Kasi nung nagbibigay ako ng support, councilor po ako
ng QC. Kayang kaya yun. Ngayon tanod nalang po.
Natalo. Kasi naimbestigahan yung PDAF ko. HAHAH. Pero
kung ikaw naman, kasi po 10K, when he was a councilor,
eh ngayon, MAYOR na sya po. So increase-an.
Do you know that in Guardianship, legal guardians
are bound to post bond (parents) if property or income
of the ward who are their very own children is more than
50,000. Kino-comply ba ito ng mga parents? No. Tingnan
PROVISIONAL REMEDIES –
Pauling Poleng
mo tong sila Rizza Mae. Or Cyril Manabat. They are
earning millions and parents cannot dispose of their
property supposedly. See? Kaya ditto sa support
napakaimportante.
Bakit ang usually na nagpa-file for support are
unwed mothers? Are there no unwed fathers? Mas
maraming unwed fathers kesa unwed mothers. Diba?
And there are even no houses for unwed fathers. Kasi
that would be overcrowded at hindi mo ma-determine.
There is always question of paternity. Not maternity.
In People vs Manahan, the defendant here was
convicted for rape and the rape produced a child. So he
was convicted and penalized with the supreme penalty of
death. Adjudged not only to give support but also to
acknowledge the child. The SC said, there is a defect in
the judgment. If Support can be adjudged correctly the
he can’t be forced to acknowledge the child. Why?
Because civil law says that if there is an impediment and
the impediment here is that Manahan is married. A
married person who has an illegitimate child cannot be
forced to acknowledge. He can only be forced to give
support.
Why don’t you give a round of applause to that
kind of decision? Married man are not obliged to
acknowledge. Because a foreign blood will get into the
family.
Monetfalcon (?). Ay may case pala na Lim vs Lim.
Ano ito? This case in support and support pendente lite,
ito yung mga mayayaman sa Dasma Village. Meron
magasawa pinatira sila ng kanilang mga magulang sa
Dasma or I think Forbes. Ngayon tumira doon yung mag-
asawa nagkaanak, yung mga anak, dun parin sila
nakatira. The father is working in the family corporation.
And all the children were supported by the grandparents.
Ganon yung situation. The wife discovered that her
husband was having extramarital relationship. One day
when she found out and certain, what she did was to
take the children away and live separately. And then she
filed a petition for support and support pendente lite not
only against the husband but also against the
GRANDPARENTS OF HER CHILDREN. Yung in laws niya.
And who seeks to be supported? Not only the children
but also herself.
What does the SC says? The petitioner wife is not
entitled to support from her in laws. They do not have
any relationship whatsoever. But the children are entitled
to support from the grandparents. Considering that the
support should be directed to the father but since the
father is not in the position to give sufficient support and
the grandparents can give more than enough to support
then they are bound to give support to the
grandchildren.
But you have to look at the situation ha? That is
Lim vs Lim.
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