Civ Pro 9/2

You can observe that there are grounds for filing a motion for new trial which are also grounds
for filing petition for relief of judgment and or annulment of judgment under Rule 47. A motion
for new trial is a post judgment remedy which can be availed of before the finality of judgment
unlike the other 2 post judgment remedies, petition for relief from judgment and annulment of
judgments under 38 and 47 respectively, which can be availed of after finality of judgment.

Object for the motion for new trial, the same can be used against the judgment for final order that
disposes of the case and the petition for relief of judgment can be availed to assail a judgement or
final order disposing of a case and it can also be utilized as against other proceedings such as
order of execution and also denial of an appeal.

As for annulment of judgments, the same can be utilized in assailing either judgment, final order
or final resolution disposing of the case, the common denominator is that the objects of a motion
for new trial, petition for relief from judgment and annulment of judgments are those which
finally dispose of the case, in other words you cannot utilize these remedies to question mere
interlocutory orders.

As to who can file a motion for new trial – this can only be availed of by a parties in a case and
cannot be availed of by third parties nor motion for reconsideration. Outside parties cannot make
us for motion for new trial.

As petition for relief, the general rule is that only the aggrieved parties can make us of the same
but actions in rem such as land registration cases then a third party who may be adversely
affected by the judgment can also make us for petition for relief. In other words, petition for
relief is not solely confined to those who are already impleaded or parties in the action.

Same thing applies with respect to annulment of judgments under Rule 47, it can used by any
aggrieved party in the case but this can also be availed of by the third party who was adversely
affected by the questioned decision. For example, there is a case filed by a person (a) against (b)
but then in the action (c) is omitted even if c is an indispensable party. In Civ Pro 1, any
indispensable parties must be joined in the action otherwise, the proceeding will be considered as
null and void such that if there is a case for recovery of ownership, all those persons who are
owners must be included in the action otherwise the decision in that case will be considered void.
If there is an action filed by A against B wherein C a co-owner of the property is excluded then C
even if he is not technically a party in the case can avail of Rule 47 in seeking for the annulment
of the decision.

It is only motion for new trial which can only be availed of by parties in the case and for the
outside parties, they can’t make use of motion for new trial. As for the grounds for filing motion
for new trial are FAMEN. The kind of fraud that can be utilized in filing a motion for new trial,
petition for relief and annulment of judgment is only extrinsic fraud. Extrinsic fraud is a kind of
fraud that prevents a party from presenting his case as differentiated from intrinsic fraud which is
committed at the trial or which can be performed during the trial. In an action a falsified
document is introduced in evidence, even if the falsification is committed outside of the trial and

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even if the falsification is committed even before the trial, it is still considered as intrinsic fraud
because the other party has the opportunity during the trial to present all evidence so that the
other party has the opportunity to dispute or somehow controvert the introduction of that falsified
document.

The kind of fraud that can be introduced in either filing a motion for new trial, petition for relief
of judgment and annulment of judgment is only extrinsic fraud.

For the newly discovered evidence as a ground for motion for new trial, there are four essential
requirements (1) it has to be discovered after trial, (2) it could not have been produced during the
trial without fault on the part of the movant or offeror, (3) it must be material to the case and (4)
it must be of such way as to probably change the outcome or decision of the case. But as for
these four requirements, what should be given primordial consideration is the second
requirement that this piece of evidence cannot be produced during the trial, despite the due
diligence exercised by the offeror. It's not so much about the day when that evidence has been
discovered. It's not so much about the date when that piece of evidence sprung into existence.
For example, you have a piece of evidence, a receipt which cannot be produced in the course of
the trial because the same was lost and you couldn’t and you could not locate this evidence
despite there is an effort exerted then if that will be discovered or located after the trial, then that
can still be a newly discovered evidence. Even if that piece of evidence is already in existence
before the trial and during the trial and even if its existence is already known to be offered up,
that may still qualify as a newly discovered evidence if that cannot be offered during the trial
without fault on the part of the offeror. What if the evidence under consideration is a testimonial
evidence, you have a vital witness who cannot testify during the trial because he is outside of the
country. During the trial, you want to present your plan to prove payment because you made the
payment in the presence of that person, although the creditor did not issue any receipt. His
testimony is vital in proving your defense proving that you already made obligation demanded in
the case. But then he cannot testify because he is outside of the Philippines. Should he return to
the Philippines after the decision is rendered in your case. Can you present his testimony by way
of asking the court that you have newly discovered evidence, is the not presentation thereof in
the course of trial considered to be excusable? – No, because in Civ Pro 1, there is other modes
of discovery wherein you can take his deposition even if that person is outside of the Philippines.
The non-presentation of that testimonial evidence cannot therefore be justified as a newly
discovered evidence because had you exerted best efforts, you could have present his testimony
via deposition.

While newly discovered evidence is one of the grounds in filing a motion for new trial, that is
not however a ground for filing for a petition for relief. Newly discovered evidence is
undoubtedly one of the grounds in filing a motion for new trial but as so far as petition for relief
is concerned, the grounds thereof are only limited to FAME.

As for Rule 47, there are only 2 grounds: (1) extrinsic fraud and (2) lack of jurisdiction. Lack of
jurisdiction as a ground in filing a petition under Rule 47 is not solely confined to lack of
jurisdiction over the subject matter in that the same can be used lack of jurisdiction over the
person over the person, over the res or over the issue. Take note there are 4 elements jurisdiction
(1) lack of jurisdiction over the subject matter which is conferred by law (2) lack of jurisdiction

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over the person over the person (3) lack of jurisdiction over the res or the thing in litigation (4)
lack of jurisdiction over the issue which is conferred via pleading submitted by the parties. Lack
of jurisdiction as a ground for petition for annulment of decision under rule 47 encompasses
everything, it’s not solely confined to lack of jurisdiction over the subject matter, when the court
does not validly acquire the jurisdiction over the person of the defendant then, the defendant may
file a petition under Rule 47 based on the ground. (See case of Ancheta)

As for the period for filing a motion for new trial, the same must be availed of within the period
for filing an appeal under Rule 37, and as for period of appeal, we have 15 days where the appeal
required the mere filing of notice of appeal together with the payment of pertinent filing fee, or
file an appeal within 30 days for cases allowing for record on appeal which requires submission
and filing records on appeal and 48 hours with respect for habeas corpus. In other words, motion
for new trial is a post judgment remedy which can be availed of before the finality of the
decision, that’s why it is needed to be filed within the period for filing the appeal.

What are these cases wherein the period to appeal is not just 15 days but 30 days, (a) special
proceedings, (b) cases for expropriation, (c) foreclosure of mortgage, (d) partition of property
and account, ( e) recovery of property and accounting, and (f) and in cases where the court may
rendered several or separate judgments pursuant to sections 4 and 5 of Rule 36. It is reckoned
from the period when the adverse decision is served on the counsel of the movant or if the
movant is represented by the counsel therefor, or the movant himself if he or she is not
represented by counsel, what is important is motion for new trial just like motion for
reconsideration must be availed of within the period for filing an appeal.

With respect to Petition for Relief and Annulment of Judgment, these are post judgment remedies
which can be availed of after finality of judgment but the reglementary period for petition for
relief is it should be filed within 60 days after the petitioner learns of the judgment and final
order or other proceedings that must be set aside and not more than 6 months after such
judgment or final order was entered or such proceeding was taken, this 60 day period and 6
month period must concur to be able to avail for petition for relief from judgment.

Example: The court rendered a judgment dated Jan. 15, and on that day a copy thereof was
served on the lawyer for the defendant but the lawyer did not inform the defendant about the
decision because the lawyer for the defendant had been bribed by the plaintiff. The lawyer did
not only inform the defendant about the decision, the lawyer did not even file a notice of appeal.
Such that on February 15, decision attained finality and an entry of judgment was issued. Then
the defendant received the writ of execution on August 31, 2023 and it was that day that the
defendant knew that the decision was already rendered on his case on January 15 and it already
attained finality on February 15, 2023. Defendant consulted another lawyer, can the defendant
through his new lawyer file a petition for relief on Aug. 31? – it’s a requirement that a petition
for relief must be filed within 60 days after the petitioner learned of the judgment. Hence, on
Aug. 31 or immediately thereafter, defendant can’t comply with the 60-day period but how about
the second requirement that the petition for relief should be filed not more than 60 days from the
finality of the judgment, here the judgment attained finality of Feb. 15 such that by Aug 31, the
60 day period or 6-month period had already expired. The defendant can no longer file a petition
for relief as of Aug. 31, 2023 or immediately thereafter. His remedy would be to file a petition

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for annulment of judgment under rule 47 on the ground of extrinsic fraud wherein the defendant
has 4 years reckoned from the discovery of such extrinsic fraud to file a petition under rule 47.
One thing is clear, rule 38 cannot be availed of in this situation but rule 47 may still be availed
of.

Example: The court rendered a judgment dated Jan. 15, the copy was served on the lawyer of the
defendant and the defendant instructed the lawyer to file an appeal but the lawyer didn’t file an
appeal because the lawyer was bribed by the plaintiff. Here, the defendant already learned of the
decision, he was informed about the decision. Such that on February 15, decision attained
finality and an entry of judgment was issued. In this situation, the client has been served with a
copy of the writ of execution in May 15, 2023 and it was then that he learned that the judgment
had already attained finality because his lawyer didn’t file an appeal because he was bribed by
the plaintiff. As of May 15, 2023 or immediately thereafter, can a defendant through a new
lawyer file a petition for relief of judgment? – It complied with the 6-month period but it is
already beyond the 60-day period because he learned of the decision on January 15, if he would
file a petition for relief on May 15, then it would be outside of the 60-day period required among
others under Rule 38. While he could possibly comply with the 6 month period, but he couldn’t
comply with the 60-day period reckoned from the day the petitioner learned of the adverse
decision, in this situation Rule 38 is unavailing for the defendant but he can still file a petition
under rule 47 because it was not his fault and it was only on May 15 that he learned of the
finality of the decision. The 60 day period and the 6 month period referred to under Rule 38 must
concur in the given case before you can avail for petition for relief. In cases when you can’t avail
for petition for relief through no fault of the defendant then there is Rule 47 that is annulment of
decision based on extrinsic fraud or possible lack of jurisdiction. For the ground of extrinsic
fraud it can be filed within 4 years from the discovery of fraud and for lack of jurisdiction, it can
be filed at any given time provided that estoppel or laches has not yet set in. (Tijam vs.
Sugbuhanoy, exception to the rule, here they waited 15 years)

GR: You can actually set aside a decision on ground of lack of jurisdiction as long as estoppel or
laches has not yet set in.

In so far as Rule 37 is concerned, it is held that filing of a Motion for Reconsideration will not
bar the filing of the motion for new trial. Rule 37 governs both Motion for Reconsideration and
Motion for New Trial but they are different remedies. There are 4 distinctions between them (a)
motion for reconsideration’s grounds are damages are excessive, insufficiency of evidence to
support the decision or the decision is contrary to law, while Motion for New Trial have been
governed by the same Rule 37 and the grounds are FAMEN; motion for reconsideration does not
require a submission of 2 affidavits whereas submission of 2 affidavits specially when the
grounds in filing a Motion for New trial is a requirement; as a rule when the same party filing a
second motion for reconsideration Is prohibited while in so far as motion for new judgment is
concerned, filing of a second motion for new trial of the same party is not absolutely prohibited
specially when the ground in filing the second is different from the first filed; when the motion
for reconsideration is granted that will not resolved in having a trial de novo whereas when a
motion for new trial is granted, there may be a trial de novo or a further hearing for the reception
of the newly discovered evidence.

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The filing of a second motion for new trial of the same party is not absolutely prohibited
specially when the ground in filing the second is different from the first filed: example: I’m the
defendant in the case, Gravador is the plaintiff, after encountering an adverse judgment I filed
and before the finality thereof a motion for new trial based on newly discovered evidence but
was denied but following 1 week after the denial, the judge was dismissed on the ground of fraud
because he committed bribery and it’s mentioned in the case that he received bribe for the
decision of my case, following the denial of my first motion for new trial, I am given a fresh
period of 15 days or 30 days within which to file an appeal, such that I can still file a motion for
new trial in that case and the ground thereof will now be extrinsic fraud.

Take note for the requirement of Petition for Relief, it is an equitable remedy which can be
availed of when there is no claim adequate or speedy remedy that is available or that can still be
availed of by the party concerned such that when the party has availed of; other remedies such as
motion for new trial, MR or appeal or with the party could have availed of these other remedies
then the party concerned could not use petition for relief.

Example: Losing defendant in an action and I filed a motion new trial based on newly discovered
evidence, denied by the Court. Under Section 9 of Rule 37, the remedy of the movant or the
person who filed a motion for new trial is to appeal from the judgment and assign as one of the
errors committed by the court the denial of his motion for new trial. In that situation, the
appropriate remedy that I can pursue is appeal from the judgment and question in the appeal the
denial of motion for new trial. Such that if that situation I pursue that remedy of appeal then by
pursuing that remedy, I cannot as rule anymore file a petition for relief. Moreso, that newly
discovered evidence is not a ground in filing a petition for relief. But the main reason that I
cannot anymore file a petition for relief because I have availed the remedy of appeal. But what if
I didn’t avail of the remedy of appeal? Can I still pursue the remedy under Rule 38? – No,
because the newly discovered evidence is not a ground in filing a petition for relief and I could
have availed the remedy of appeal but I did not. I should have filed an appeal following the
denial of my motion for new trial.

A Petition for Relief cannot be availed of if you only have availed of these other remedies such
as motion for reconsideration, motion for new trial or appeal or where you could availed of these
other remedies. Is that absolute? – if the petition for relief is based on a new ground, then that
can still be allowed notwithstanding the existence or the fact that the party concern had availed
of or could have availed of the other remedies such as MR, Motion for New Trial or Appeal.

Example: I filed a Motion for New Trial based on newly discovered evidence and was denied by
the court, I pursued the remedy of appeal but the notice of appeal was not filed on time because
our office messenger met an accident on his way to the court which was the last day for filing
and he was not informed about it. It was filed 2 days after the expiration of the filing of the
notice of the appeal that’s why the court denied the appeal and entered entry of judgment. Can I
file a Petition for Relief? – No, because if at all, my petition for relief will be based on accident,
the ground that I utilized in filing my Motion for New Trial was newly discovered evidence and
this time around my ground for Petition for Relief is accident, the one which caused the late
filing of my notice of appeal. As a rule, the filing for Motion for New Trial or filing of the appeal

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generally forecloses the opportunity of a party to avail of the remedy for petition for relief but
such is different where the Petition for Relief will be based on the different ground.

As for Rule 47, you take note of this rule to the end that extrinsic fraud shall not be a valid
ground if it was already available, or the same could have been availed of either in a motion for
new trial or petition for relief, Just like a petition for relief, annulment of decision is based on
extrinsic fraud is an equitable remedy which can only be availed of whether when there is no
other claim or adequate remedy available to the party concerned, such that if extrinsic fraud had
already been utilized as a ground in filing, either motion for new trial or petition for relief, then
you cannot anymore utilize the same ground in filing a petition under Rule 47.

Example: The court rendered a judgment dated Jan. 15, the copy was served on the lawyer of the
defendant on Jan 15 but the lawyer didn’t inform his client about it and was bribed, he didn’t
also file an appeal such that the decision attained finality of February 15, the client knew about
the decision dated Jan 15 and about the finality thereof as on Feb 15 on Feb. 28 when he was
served with a writ of execution. There is extrinsic fraud. Can the client as of Feb 28 or
immediately thereafter file a petition for annulment of judgment under Rule 47. – No, because as
of Feb 28, 2023, petition for relief is still available based on extrinsic fraud. The existence of that
fraud forecloses the right of the client to avail Rule 47 because Rule 38 is still available to the
client. If the client filed a petition for relief, on March 1 but the same is denied, the client can’t
avail Rule 47 because he already filed Petition for Relief, what would be the remedy? – it is Rule
65, questioning the denial of his Petition for Relief. He can’t avail of Rule 47 because he had
already availed of this remedy under Rule 38 based on the same ground which is extrinsic fraud.

Example: The court rendered a judgment dated Jan. 15, the copy was served on the lawyer of the
defendant on Jan 15 but the lawyer didn’t inform his client about it and was bribed, he didn’t
also file an appeal such that the decision attained finality of February 15, the client knew about
the decision dated Jan 15 and about the finality thereof as on Feb 15 on Feb. 28 when he was
served with a writ of execution. As determined earlier, the appropriate remedy is Petition for
Relief, but let’s assume the client didn’t. He had the opportunity to file Petition for Relief but for
one reason he didn’t file it; but suddenly, on Sept. 21, he had a change of heart, client wanted to
file for a Petition for Relief as of Sept. 21? – No because it is beyond the 60 day and 6-month
period. Can he avail of Rule 47? – No, extrinsic fraud shall not be a valid ground if it was availed
of or could have been availed of like this situation in a motion for new trial or petition for relief.
Is there no way that a can client who avail for petition for relief based on extrinsic fraud can still
avail of petition under Rule 47, based on extrinsic fraud? – see next example.

Example: The court rendered a judgment dated Jan. 15, the copy was served on the lawyer of the
defendant on Jan 15 but the lawyer didn’t inform his client about it and was bribed, the case
attained finality on Feb 15, then the client knew about it on Feb 28, he could have availed of
Petition for Relief but he didn’t avail for it. Then on Sept 1 the client knew that the Court was
without jurisdiction over the case. Is he prohibited from filing Petition under Rule 47 because he
already availed of Rule 38? – No because here, the exception is very clear that if the petition for
annulment of judgment is based on lack of jurisdiction that is therefore permissible.

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Another situation, like we said when extrinsic fraud had already been availed of or could have
been availed for either in filing a motion for new trial or Petition for Relief then that cannot
anymore be utilized as ground in filing a petition under Rule 47.

Example: The court rendered a judgment dated Jan. 15, the copy was served on the lawyer of the
defendant on Jan 15 but the lawyer didn’t inform his client about it and was bribed, the case
attained finality on Feb 15, then the client knew about it on Feb 28 as when he was served with a
writ of execution and the client consulted a new lawyer and the new lawyer filed a petition under
Rule 38. The petition for relief was file on March 1, but the same is denied. As a rule, client is
supposedly prohibited avail of Rule 47 if the ground is still extrinsic fraud. But what if the
Petition for Relief that he filed on March 1 was denied by the judge because he was also bribed,
there is extrinsic fraud but this time involving a judge. Can the client pursue a petition under
Rule 47 when the extrinsic fraud is different from the one filed before. – He can still file a
petition under Rule 47, because while the ground is extrinsic fraud, but this is different from the
extrinsic fraud that was utilized as a ground in filing the petition for relief under rule 38. Hence,
the general rule is with exception as when the extrinsic fraud is different or as when the petition
that is filed is using another extrinsic fraud that is different than what was earlier filed or where
the petition under rule 47 is no longer based on extrinsic fraud but lack of jurisdiction.

There are situations wherein the submission of affidavit of merit may be validly dispense with:
(1) when the movant has been deprived his day in court, that the defendant didn’t actually
receive the notice of hearing at which he is supposedly declared in default and (2) where the
defendant had been declared in default even if the filing of the answer has not yet expired or (3)
where what is attacked is the court’s jurisdiction over the case and (4) the ground for filing the
motion for new trial is not FAME but newly discovered evidence. – under any or all of these
situations, the non-submission of affidavit of merit may be validly dispense with but there’s no
harm to attach just the same affidavit of merit to avoid any objection. Generally, a motion for
new trial if based on FAME would require submission of 2 affidavits of merit.

When the ground of filing a motion for new trial is newly discovered evidence then these are the
documents that should be in your motion for new trial, (1) if the newly discovered evidence
partakes of the nature of a testimonial evidence, then what should accompany on motion for new
trial is the affidavit of your witness; (2) if the newly discovered evidence is a documentary
evidence then a duly authenticated copy thereof must be submitted together with your motion for
new trial. That’s why it is said earlier that among the distinctions for MR and motion for new
trial is motion for new trial requires the submission of additional documents in the form of 2
affidavits or authenticated copy of the evidence.

A motion for new trial is a litigious motion, such that you need to furnish a copy to the adverse
party otherwise, it can be declared as pro-forma as said by Rule 15 of ROC. The adverse party
should have the opportunity to file his comment or opposition within 5 days from receipt of the
copy without needing a court order. Whereas for Petition for Relief, take note of the following
formality: while the motion for new trial does not have to be verified, petition for relief, on the
other hand under Rule 38 must be verified. your petition for relief, which is based either on the
ground of FAME should be supported by 2 affidavits, the first one the facts and circumstances
constituting FAME as the case may be and the other one is affidavit of merit.

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For Annulment of Judgment under Rule 47, it is a requirement that there should be a verified
petition therefore, it should be accompanied by certification against forum shopping because
Motion for New Trial, verified petition for relief would have to be filed in the very same court
which rendered the impugned judgement whereas this petition under Rule 47 is to be filed in a
different Court. If what is to be nullified is the decision of the RTC then the verified petition
under Rule 47 shall be filed in the CA; whereas if what is to be nullified in the ground of
extrinsic fraud or lack of jurisdiction is a decision of the MTC then your verified petition under
Rule 47 must be filed with the RTC. It will be treated as an ordinary or separate action. Motion
for New Trial and verified petition for relief should not be treated as a separate case. Another
formality under Rule 47 is you need to attach a certified true copy of the judgment that is being
questioned for review, you need to submit the affidavit of the witnesses specially if the ground
relied upon is extrinsic fraud, it should recite the fact and circumstances showing that extrinsic
fraud is evident. Should you not comply with these formalities, then you’re motion for new trial,
petition for relief under 38 or petition for annulment under rule 47 may be found pro forma and
will not be given due course.

As for Petition for Relief, if the Court finds that it is sufficient in form and substance, then it will
issue an order directing an opposing party to file his answer. Even when there is no answer filed
by the opposing party, it doesn’t follow that the Court will grant the petition for relief, it will still
conduct a hearing if indeed there is a ground to grant the Petition for Relief on the ground of
FAME and if the court is convinced, it will grant the Petition for Relief. There’s a chance that the
court will conduct a trial de novo and there’s a chance the court will just direct for a hearing be
conducted in the case. But if the object of the petition for relief is the order of the court denied
due course to an appeal and wherein the Petition for Relief is granted then, the case will be
elevated to the higher court or the appeal will be given due course.

As for Rule 47, if the court finds prima facie evidence that the petition under Rule 47 is sufficient
in form and substance, then it will issue summons directing the respondents here therein to file
their answer because that is to be considered as an ordinary action or it is to be considered also as
a separate action and the respondent shall file his answer within the period prescribed under Rule
11, so the respondents should be given a period of not less than 30 days within which to file an
answer.

Effect/s if and when the Motion for New Trial, Petition for Relief or Petition for Annulment of
Judgment is granted, take note that what is filed in court is a motion for new trial and the same is
found to be meritorious or the same is granted, there are actually two possibilities: (1) the Court
may possibly conduct trial de Novo, meaning there will be a retrial, the Court will go back to
square one, there will be retaking of testimonies and evidence (2) that the court will just conduct
a further hearing without need of conducting a Trial de Novo.

Situation: A case is filed in Court by Atty. Gravador against Atty. Torregosa and Gravador bribed
the process server to make it appear falsely that Torregosa had been served with summons when
in due fact, no summons had been served. On the basis of the servicing board, Gravador filed a
motion to declare Torregosa in default and Torregosa had been declared in default, Gravador
presented his evidence ex parte and thereafter the court rendered a judgment by default. Upon

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being served by the judgment in default, Torregosa filed a motion for new trial, on the grounds of
extrinsic fraud. If that Motion for New Trial will be granted by the Court, you can expect that
there will be trial de Novo. Gravador has to take a stand anew for him to be crossed examined by
Torregosa and by his lawyer, his witnesses will be required to take a witness stand and testify
again for them to be likewise be cross-examined by Gravador. There will be a trial de novo so
that the court will go back to the start. But when the ground for filing a Motion for New Trial is a
newly discovered evidence, there is no need for a trial de novo, the court will just conduct a
further hearing for the reception of the newly discovered evidence. There will just be a
continuation of hearing.

Situation: Torregosa filed his answer in a case, then trial ensued such that Torregosa was able to
conduct a cross examination against Gravador and his witnesses and able to file his comment on
opposition to the formal offer of Gravador’s documentary exhibits. But when it was his turn to
submit all his evidences, Torregosa failed to present evidence because he was not notified or did
not receive a notice of the hearing, the court upon motion filed by Torregosa to have waived his
right to present evidence and the court rendered a judgment. If Torregosa will a Motion for New
Trial alleging that he didn’t actually receive a notice for the hearing, and the Court granted it.
The court will just continue the proceedings and not start from the beginning. The Court will no
longer have Gravador and his witnesses retake their testimonies and be cross-examined.

Situation: What if what is filed in Court is a petition for relief of judgment, and the subject
matter thereof is the judgment itself, under Rule 38, the judgment or final order will have to be
set aside and the Court will conduct a hearing as if a Motion for New Trial had been filed. It’s
possible wherein a Petition for Relief was filed and granted and the Court may conduct a trial de
novo or the court may just conduct a partial hearing.

Where the Petition for Relief is directed against an order of the Court, denied due course of the
appeal and the petition for relief filed thereon is granted then, the notice of appeal which was
previously denied due court will be given due course and the case records will be forwarded to
the Court to be reviewed.

Situation: What is going to happen if what is filed in Court is a petition for annulment of
judgment under Rule 47 and the same is granted? General Rule is that where the petition under
rule 47 is granted, then the decision will be nullified, such that the case may be revived or
refiling of the case. Under Rule 47, when the ground is extrinsic fraud, there is an alternative
consequence that upon proper motion, the Court which granted the Petition will just direct the
trial court to conduct a further hearing in the case. Instead of refiling the case, if the petition
under rule 47, based on extrinsic fraud and there was a proper motion, then the higher Court will
just nullify the judgment and direct the RTC to conduct the hearing of the case; which means the
case need not need refiling.

Consequence of filing a Petition under Rule 47 with respect to prescriptive for the filing of the
action.

Situation: I filed a case against for ejectment with the MTC which is the prescriptive period for it
is 1 year from the last demand, I filed a case for ejectment 1 month prior to the expiration of the

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prescriptive period for filing but by inadvertence, instead of filing it with the MTC, I filed it with
RTC. Gravador did not object to the filing, but after receiving an adverse ruling, he finally
objected on the ground of lack of jurisdiction. Gravador filed a petition for annulment under rule
47, if that will be granted then the decision of the RTC will be nullified. Can I still refile the
case? – It is still allowed because it is stated under Rule 47, the prescriptive period for the action
shall be suspended the moment that the original action is filed in Court. In other words, even if
the case that I filed with the RTC erroneously was heard for 2 years, I can still file the case in the
MTC because the filing of the action, effectively suspended the running of the prescriptive
period for filing the case.

Situation: I filed the case for unlawful detainer against Gravador in the RTC on the eleventh
month after the last demand, Gravador filed a Motion to Dismiss and was denied because he was
bribed. RTC rendered a judgment against Gravador resulting him to file a petition under Rule 47
and the same is granted. The decision of the RTC will be nullified, can I still refile the case with
the MTC? – No, I employed extrinsic fraud because I cannot profit from my mistake, when I
employed fraud and I am the plaintiff in that action, I cannot therefore refile the case and the
prescriptive period will also not be suspended.

Movant’s Remedy if the petition is denied.

Situation: You are the movant who filed a Motion for New Trial but it is denied. What is the
remedy? – Sec. 9 of Rule 37 says is the remedy is to appeal from the final judgment and assign it
as one of the errors committed by the Court the denial of the Motion for New trial.
Situation: What if you filed a Petition for Relief under Rule 38 and the same is denied, the
remedy is Certiorari under Rule 65 because the decision in the case has already attained finality.
Petition for Relief is a post judgment remedy which can be availed of after the finality of
decision.

Situation: What if what is filed is a Petition under Rule 47 in the CA and the same is denied? –
the remedy is appeal by certiorari under rule 45 which will only raise a question of law.

Situation: What is the Petition under Rule 47 is filed in the RTC, because what is being nullified
is the decision of the MTC? – the remedy is Appeal by Certiorari under Rule 45 because they
were raising pure question of law. You can also avail of Rule 41 which can also cater mixed
questions of facts and law, because the decision of annulment of decision is to be treated as an
ordinary civil action.

Situation: What if you are the party against whom the Petition for Relief or Motion for New Trial
is filed on the ground of newly discovered evidence and was granted? What is the remedy? – to
file Certiorari under Rule 65 because it is directed against a mere interlocutory order.

Situation: What is the remedy against whom a petition for relief from judgment is filed and the
same is granted? – On the same premise, the petition for relief may only be availed of after the
finality of the decision then definitely, the granting will be considered as an interlocutory order,
The remedy is still certiorari under rule 65.

Sabby Notes.
Situation: How about a petition under rule 47? – If the Court at which under Rule granted it and
issued an order and finding merit, and directing the respondent to file an answer, the remedy is
Certiorari under Rule 65. That is if the Court issued an order to the end that it finds the petition
to be sufficient in form and substance, otherwise, the remedy is petition under rule 45 on
questions purely of law.

Situation: A case decided by RTC exercising its original jurisdiction, the remedy is Rule 41.

RECITS:

Q: What kind of judgment or orders can be assailed of via an appeal?

A: Only judgments or final orders of the court that completely dispose of the case.

Q: Can you file an appeal on an interlocutory order?

A: No, the remedy is proceed with the trial and if an adverse decision is rendered, assign it as
one of the errors on the appeal.

Q: Are there judgments or orders which cannot be appeal from?

A: Order denying a petition for relief or any similar motion seeking from judgment, interlocutory
orders, appeal on disallowing or dismissal of an appeal, denying a motion to set aside judgment
by confession, compromise and consent by grounds of fraud, mistake or duress or vitiated
consent, order of execution, a judgment or final order for or against one or more several parties
while the main case is pending; and order dismissing an action without prejudice.

Q: What is the remedy with respect to the judgments or orders from which no appeal may be had
as mentioned under sec. 1 of Rule 41.
A: It could be certiorari under rule 65, mandamus, you can proceed with trial and assign it as one
of the errors on appeal.

Q: When what is issued by the court partakes the nature of an interlocutory order, you cannot
assail it via an appeal. The remedy is certiorari and among others, enumerate the interlocutory
orders which you cannot file certiorari.
A: Order denying affirmative defenses pleaded in the answer, order of the court submitting the
case for judgment on the pleadings or summary judgment, an order denying the demurrer to
evidence, order of the court approving or denying a motion for judgment on the pleadings, order
of the court approving or denying a motion for summary judgment, interlocutory orders in cases
falling under the Revised Rules on Summary Procedure.

Q: Appeal is a statutory remedy such that where there is no law providing for the remedy, then
you cannot say that you are denied due process like in Small Claim Cases. Are there situations
wherein Congress by simple law can’t take away the remedy of appeal?
A: In criminal cases with a punishment of reclusion perpetua or death, and if what is involved is
purely question of law.

Sabby Notes.
Q: Mentioned that judgments and orders in sec. 1 Rule 41, the default remedy is Rule 65 and
there are other remedies. What if the order of the court is denying due course of the appeal for
being filed out of time.
A: It could be mandamus or petition for relief

Q: What if the order is an order denying the motion to set aside a judgment by consent,
confession or compromise?
A: (1) Rule 65, (2) prohibition or (3) Mandamus. (Rule 47 is also possible)

Q: In order of executions, what are the remedies?

A: (1) Rule 65, (2) filing a motion with the Court which issued the writ of execution questioning
the validity of such writ or the implementation thereof, (3) third party claim and; (4) filing of
appropriate separate action.

Q: What is the remedy for the denial of demurrer of evidence?

A: Proceed with the trial and assign the denial as one of the errors on appeal.

Q: You filed a motion wherein a case should be submitted for judgment on the pleadings but the
motion was denied, what is the remedy?
A: Certiorari is not allowed, the remedy is proceed with the trial and assign the denial as one of
the errors on appeal.
Q: How about the denial of the motion for summary of judgment. Can you question via
certiorari?
A: Rule 65 is still not allowed, proceed with the trial and assign the denial as one of the errors on
appeal.

Q: How about for interlocutory orders in summary procedure cases, can you use rule 65?
A: No, proceed with the trial and assign the denial as one of the errors on appeal the validity of
any such interlocutory order.

Q: Among the orders which cannot be questioned by appeal is an order dismissing a case
without prejudice, what are these situations?
A: (1) first dismissal of the complaint at the instance of the plaintiff, unless the Court decides
otherwise (2) dismissal of the action for failure to prosecute or failure to appear at trial or comply
with the rules or order of the Court (3) Non-compliance with the requirement of certification
against forum shopping unless the dismissal is with prejudice (4) Dismissal of the case based of
affirmative defense that the venue is improperly laid (5) Dismissal of the case based of
affirmative defense that the plaintiff has no legal capacity to sue (6) Dismissal of the case based
of affirmative defense that the complaints states failure to state cause of action (7) Dismissal of
the case based of affirmative defense that the condition precedent has not been complied with (8)
non-payment of docket fees (9) complaint is pro forma.

Q: What are the instances where the dismissal of the case is with prejudice.

Sabby Notes.
A: (1) Dismissal of the case for the repeated failure of the plaintiff to appear in the pre-trial (2)
ground of res judicata or prior judgment (3) action is barred by the statute of limitation (4)
Dismissal of the case based of affirmative defense that the claim or demand set forth in the
plaintiff’s pleading has been waived, abandoned, paid or extinguished (5) Dismissal of the case
based on the ground that the action is unenforceable under statute of frauds (6) Failure to
prosecute

Q: If the dismissal is with prejudice, the remedy is? (dismissal is silent)

A: Appeal.

Q: If the dismissal is without prejudice because of improper venue, the remedy is?
A: Refile the case.

Q: Follow up: what if you file the case in the proper venue but it was dismissed? What is the
remedy?
A: Certiorari under Rule 65.

Q: When the case is dismissed on improper venue then the dismissal, it is a dismissal without
prejudice because it can be refiled with the proper court or can be questioned via certiorari. How
about when a case filed has no jurisdiction over the subject matter?
A: It is a dismissal without prejudice, can be refiled with the proper court hence not appealable.

Q: Follow up: assume that the defendant filed a motion to dismiss and was granted. Is it
dismissal with prejudice?
A: It is a dismissal without prejudice, because I can refile it with the MTC. I can’t question the
dismissal but it can be through rule 65. The dismissal of the case for lack of jurisdiction is a
dismissal without prejudice, appeal cannot be filed and the remedy is rule 65.

Q: Case for collection for sum of money, 10 million. Which court has jurisdiction? (RTC). By
inadvertence, it was filed with the MTC. MTC dismissed it for lack of jurisdiction, how will the
dismissal be characterized?
A: It is a dismissal without prejudice. It should be filed on appeal on the RTC and RTC will try
and hear the case exercising its original jurisdiction (exception to the rule). It can also refile the
case with the RTC. (Sec. 8)

If it is the RTC which dismisses the case for lack of jurisdiction, then sec. 8 rule 40 can’t be
applied, the dismissal will be without prejudice. The default remedy is certiorari or prohibition.

Q: Case whereby the demand for sum of money is 10 million, filed in the MTC, MTC dismissed
the case. Supposing I filed an appeal, RTC took cognizance of the case. What will the RTC do?
A: RTC will try and hear the case on the merits as if it has the original jurisdiction over the case.

Q: Assume the RTC tried the case, parties presented evidence. RTC rendered the judgment, what
can the losing party pursue in questioning the ruling of the case?

Sabby Notes.
A: Ordinary appeal by Rule 41, appeal on the original jurisdiction of the RTC to the CA because
RTC had the original jurisdiction over the case.

SEPTEMBER 16

When an order of the Court and dismissal is defiant of the local order of the court then the
dismissal is made pursuant to section 3 Rule 17 the dismissal is a dismissal with prejudice even
if the order dismissing the case on that ground is silent on the nature of the dismissal. It can only
become a dismissal without prejudice if the order states that it is a dismissal without prejudice. If
it were the plaintiff and he failed to show up to the hearing and to show evidence and later on the
case was dismissed, it is a dismissal with prejudice. The remedy is appeal from the order of
dismissal because it can no longer be refiled. But if there is a statement in the dismissal order
that such dismissal of the order is without prejudice then you can refile the case.

Q: I filed a case against Atty. Gravador in the RTC but the nature of the action that I filed therein
is a case for ejectment. Is the case forcible entry cognizable by the RTC?
A: No, cases of forcible entry is cognizable by the MTC by under section 23, par 2. Forcible
entry and unlawful detainer are under the exclusive original jurisdiction of the MTC regardless
of the assessed value of the property and regardless of the amount demanded for as damages.

Q: Suppose that when I filed the ejectment case in the RTC, and dismissed the case for lack of
jurisdiction, how do you characterize the dismissal?
A: It is a dismissal without prejudice, hence it can be filed with the proper court which is the
MTC.

Q: If I am not convinced that petition is without jurisdiction of the RTC. What would I file and
under what Rule?
A: Certiorari under Rule 65, grave abuse of discretion amounting to lack or excess of
jurisdiction. It is a dismissal without prejudice. Sec. 1, Rule 41 enumerates the orders or
judgments which cannot be appealed from which includes dismissal without prejudice.

Q: I filed a case in the MTC against Atty. Gravador and the nature of the action is action
reinvindicatoria (recovery of title, ownership, possession involving a parcel of land with an
assessed value of 500,000), is that case cognizable by the MTC?
A: MTC can recognize a real action based on the assessed value of 400,000 below. If higher, it is
cognizable by the RTC. In this case, it is cognizable by the RTC.

Q: Supposed, MTC motu proprio dismissed by complaint that I filed on the ground that it has no
jurisdiction over the case, how do you characterize the dismissal?
A: It is a dismissal without prejudice.

Q: If I want to question the dismissal of the case by the MTC. Can I pursue the remedy of
appeal?
A: If it is the MTC which dismisses the action for lack of jurisdiction, even if the dismissal
without prejudice but by way of exception to the rule where you cannot supposedly appeal from

Sabby Notes.
an order dismissing the case without prejudice, you can pursue the remedy of an appeal. That is
again if it is the MTC which dismisses the action. (Basis is section 8, Rule 40.)

Q: I filed an appeal and the case had been elevated to the RTC and the RTC found out that the
case I filed in the MTC is not cognizable by the MTC but cognizable by the RTC. What will the
RTC do?
A: The RTC may hear and decide the case based on the merits because it has jurisdiction. RTC
will now assume jurisdiction over the case and it will direct the defendant to file an answer and
thereafter a pre-trial, trial and the RTC will decide the case.

Q: RTC conducted a trial on the case and thereafter, the RTC decides the case in favor of the
plaintiff. The defendant filed an MR from the judgment of the RTC, was denied. If you want to
question the decision of the RTC, what will be the remedy?
A: Appeal under Rule 41, RTC exercising the original jurisdiction.

Q: I filed a case in the MTC, action for recovery of title, ownership, possession involving a
parcel of land with an assessed value of 300k. Believing that it has no jurisdiction over the case,
MTC dismissed it. Can I file an appeal?
A: Yes, apply again section 8 rule 40.

Q: The records elevated to the RTC and on appeal RTC found out that contrary to the view of
the MTC, the case is in fact cognizable by the MTC. Such that the RTC ordered that the case be
remanded back to MTC to conduct a hearing. If you want to question the order of the RTC, what
is the remedy?
A: The remedy is Certiorari under Rule 65 because the order of the RTC does not put to an end at
the litigation, does not settle the convicting claims of the parties and does not adjudicate the case
on the merits but rendered only an interlocutory order.

Q: I filed a case in the MTC, the case is for recovery of title, ownership involving a parcel of
land with an assessed value of 500k. They are thinking that the case is cognizable by the MTC,
the MTC judge proceeded to hear the case on the merits, the decision is adverse to me such that I
filed an appeal from the judgment of the MTC. But on appeal the RTC realized that MTC, the
one which conducted trial in the case has no jurisdiction over the case. What will the RTC do?
A: The RTC may direct the parties to submit additional pleadings or evidence and on the basis of
which then the RTC will decide the case on the merits.

Q: Assuming that the RTC did that and after the parties submitted the additional pleadings, the
RTC decided the case. The decision is adverse to me. Filed an MR but denied. What is the
remedy?
A: Appeal by Rule 41, original jurisdiction of the RTC.

Section 8, Rule 40 applies only in situations where it is the MTC which dismisses the case for
lack of jurisdiction or when it is the MTC which assumed jurisdiction over a case which is
actually cognizable by the RTC. It does not apply in situations where it is the RTC rather which
dismisses the action in the first place for lack of jurisdiction.

Sabby Notes.
GR: You cannot file an appeal from an order dismissing the case without prejudice including but
not limited to dismissal of the case without jurisdiction but the exception is sec. 8 Rule 40.

Q: Suppose I file a case against you in the MTC for recovery of title, ownership and possession
involving a parcel of land with an assessed value of 200k. MTC rendered a decision in my favor.
Filed an MR but denied. What is the remedy?
A: Appeal by Rule 40 by filing a notice of appeal in the MTC.

Q: If you failed to pay the appeal fee or lawful fee, would that be a ground in dismissing your
appeal?
A: Yes, under sec. 5 Rule 40.

Q: The case records have been forwarded to the RTC and the RTC decides the case on appeal
and the decision of the RTC is still adverse, MR was filed but denied. What would be the
remedy?
A: Petition for Review by Rule 42 with CA.

Q: Would that still be your remedy if what you’re questioning or questioning the judgment of the
RTC is based on pure question of law?
A: Yes.

Q: Supposed I filed the case directly with the RTC because the action involves the recovery of
the title, ownership and possession with an assessed value of 1m. RTC rendered an adverse
decision. MR was denied by the RTC. You want to question the judgment, what is the remedy?
A: Appeal by Rule 41.

Q: Suppose you want to question the decision of the RTC in the problem but your ground is
based pure question of law. What is the remedy?
A: Petition for Review on Certiorari under Rule 45 with the SC.

Q: If there is a decision rendered by the MTC on the merits and when the case is cognizable by
the MTC then you want to file an appeal therefrom so that the decision of the MTC will be
reviewed by the RTC. Ordinary appeal under Rule 40. Do you agree?
A: Yes.

Q: Are there cases wherein the decisions of the MTC cannot be reviewed by the RTC on appeal?
A: Yes, small claims cases.

Q: What are these small claims cases?

1. A: Collection of sum of money not exceeding 1 million arising from contract of loan,
contract of lease, contract of services, enforcement of barangay amicable settlement
agreements and arbitration awards, where the money claim does not exceed One Million
Pesos (₱1,000,000.00), and contract of sale of personal property, excluding the recovery

Sabby Notes.
 of the personal property, unless it is made the subject of a compromise agreement
between the parties.

Q: Respect to other cases where you want to appeal the decision of the MTC then the review
must be done by the RTC which is higher in rank compared to MTC. Is there an instance wherein
appeal from the decision of the MTC shall rather be taken up before the CA instead of the RTC?
A: Yes, during delegated jurisdiction of the MTC. Land Registration cases and cadastral
proceedings.

Q: Ordinarily, if there is a decision of the MTC and you go to the RTC pursuant to rule 40. And
on appeal the RTC renders a decision on the appealed case from the MTC, the decision can still
be reviewed by the CA under what rule?
A: Rule 42.

Q: Are there situations wherein the decision of the RTC in appealed cases can’t be reviewed
further by the CA?
A: Yes, cases governed by rules of summary procedure. Forcible entry and unlawful detainer
cases, civil actions and complaints for damages where the claims to not exceed 2m, cases
enforcement of barangay amicable settlement agreements and arbitration award where the money
claim exceeds 1m, cases solely for revival of judgment of any first level court, civil aspect of
violations of BP 22.

Q: I filed a case against you in the MTC, case for recovery of title, ownership and possession
with assessment value of 300k. MTC rendered a decision in my favor, you filed an appeal with
the RTC.
A: Ordinary Appeal by Rule 40.

Q: The RTC decides the case on appeal and the decision is still adverse to you. What would be
the remedy?
A: Petition for Review by Rule 42

Q: Suppose that the appropriate remedy is Rule 42 which requires the filing of Petition for
Review in the CA, suppose you committed a mistake as by filing a mere notice of appeal with
the RTC instead of filing the remedy under rule 42 which is petition for review with the CA. It
was the wrong remedy. Can the judge deny due course to the notice of appeal?
A: No, under Rule 41 sec. 13, the RTC cannot deny due course to the appeal unless there is non-
payment of the docket fees or the appeal being filed out of time. The authority to dismiss an
appeal for being an improper remedy is only vested with the CA.

Q: When the RTC renders a decision in a case in exercise of its appellate jurisdiction, the
recourse that can be pursued is rule 42 even if it is pure question of law. It is only when the RTC
decides the case in the exercise of its original jurisdiction where rule 45 may be availed of is a
pure question of law. Is there a situation where the case originated from the MTC and is being
elevated to the RTC and the RTC decides that case and elevated to the SC which rule 45 can be
availed of.

Sabby Notes.
A: Lack of Jurisdiction wherein the case was originally filed with the MTC but was dismissed
due to lack of jurisdiction and RTC took cognizance of the case having jurisdiction and tried the
case based on the merits as if it was originally filed with the RTC. (Sec. 8, Rule 40) If it is based
on pure question of law, it can be directly filed on appeal with the SC by rule 45.

Q: Being stated that if the RTC renders a decision in the exercise of its original jurisdiction and
where the ground is based on pure question of law, then rule 45 is the appropriate remedy,
otherwise, if it is in appellate jurisdiction even if it is pure question of law, the remedy is 42 to
ca. Rule 45 referred to as Petition for Review on Certiorari. There is also petition for certiorari
under Rule 65. What are the difference between 45 and 65?
A:

Q: It was clarified that as a rule what can be raised under 45 is pure question of law, but there are
exceptional situations when questions of fact may still be entertained under rule 45. What are the
circumstances?
A: (1) when the findings are grounded entirely on speculation, surmises or conjectures
(2) when the interference made is manifestly mistaken, absurd or impossible

Sabby Notes.
(3) when there is grave abuse of discretion
(4) when the judgment is based on misapprehension of facts
(5) when the findings of facts are conflicting
(6) when in making its findings of the CA went beyond the issues of the case, or its findings are
contrary to the admissions of both the appellant and the appellee
(7) when the findings are contrary to that of the trial court
(8) When the findings are conclusions without citation of specific evidence on which they are
based
(9) When the facts set forth in the petition as well as in the petitioner’s main and reply briefs are
not disputed by the respondent
(10) When the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record
(11) When the CA manifestly overlooked certain relevant facts not disputed by the parties,
which, if properly considered would justify a different conclusion.
(12) Appeal from the judgment or final order in a petition for writ of amparo
(13) Appeal from the judgment or final order in a petition for habeas data
(14) Appeal from the judgment or final order in a petition writ of kalikasan

Q: If you want to appeal from the decision of the MTC to the RTC, the mode of appeal is rule 40.
If the case records have already been forwarded to the RTC, what pleading if any will be
required by the RTC for the parties to submit?
A: Appellant’s Brief and Appellee’s Brief

Q: I filed a case against you in the MTC involving a recovery of title, ownership and possession
with an assessed value of 300k. In the course of the trial, I presented my evidence and made a
formal offer of my documentary and object evidence. You objected to my formal offer but the
court admitted it notwithstanding the objection. You filed an MR regarding the admission of my
formal offer but was denied, you want to question the order of the MTC admitting my evidence.
Can you file an appeal?
A: No, but it you can file certiorari by rule 65 with RTC.

Q: Assumed that you filed the certiorari with the RTC, I was given the chance to answer, and
RTC resolves the petition and affirmed the order of the MTC. MR was filed, but was denied.
What is the remedy?
A: The remedy is Rule 41, because RTC acted on the appeal on its original jurisdiction because
what is appealed from is the grave abuse of discretion amounting to lack or excess of
jurisdiction. When the RTC decides the certiorari filed, RTC is exercising its original jurisdiction
because certiorari is not a mode of appeal but an ordinary action. It is as if you filed it directly
with the RTC.

Q: Isn’t it that under the rules, if you are the appellant for example, you filed an appeal from the
decision of the RTC in the exercise of its original jurisdiction will go to CA, under what rule?
A: Rule 41.

Q: What are the pleadings to be submitted by the parties under Rule 41?

Sabby Notes.
A: Appellant’s Brief to be submitted within 45 days from the receipt of the notice of the clerk,
and for appellee’s brief, 45 days from the appellee is served with the copy of the appellant’s
brief. And the appellant may file a appellant’s reply brief within 20 days from receipt of the
appellee’s brief.

Q: What is the consequence if the appellant does not file the appellant’s brief required by the
CA?
A: It could be a ground for dismissal (sec. 1e, Rule 50)

Q: What is the consequence if the appellee does not file the appellee’s brief required by the CA?
A: it will not necessarily result in having the appeal granted and the reversal of the impugned
judgment or final order, especially if the judgment of the trial court is well-reasoned.

Q: What is stated in the appellant’s brief?

A: (1) A subject index of the matter in the brief with a digest of the arguments ang page
references, and a table of cases alphabetically arranged, textbooks and statutes cited with
references to the pages where they are cited
(2) assignment of errors intended to be urged, which errors shall be separately, distinctly and
concisely stated without repetition and numbered consecutively.
(3) under the heading “Statement of the Case”, a clear and concise statement of the nature of the
action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of
the judgment and any other matters necessary to an understanding of the nature of the
controversy with page references to the record
(4) under the heading “statement of facts” a clear and concise statement in a narrative form of the
facts admitted by both parties and of those in controversy, together with the substance of the
proof relating thereto in sufficient detail to make it clearly intelligible, with page references to
the record
(5) a clear and concise statement of the issues of fact or law to be submitted, to the court for its
judgment.
(6) Under the heading “Argument”, the appellant’s arguments on each assignment of error with
page references to the record. The authorities relied upon shall be cited by the page of the report
at which the case begins and the page of the report on which the citation is found;
(7) Under the heading “relief”, a specification of the order or judgment which the appellant
seeks; and
(8) In cases not brought up by record on appeal, the appellant’s brief shall contain, as an
appendix, a copy of the judgment or final order appealed from.

Q: What are the contents of appellee’s brief

A: (1) a subject index of the matter in the brief with a digest of the arguments and page
references, and a table of cases alphabetically arranged, textbooks and statutes cited with
references to the pages where they are cited.
(2) Under the heading “Statement of Facts”, the appellee shall state that he accepts the statement
of facts in the appellant’s brief, or under the heading “Counter-Statement of Facts”, he shall point
out such insufficiencies or inaccuracies as he believes exist in the appellant’s statement of facts
with references to the pages of the record in support thereof, but without repetition of matters in
the appellant’s statement of facts

Sabby Notes.
(3) Under the heading “Argument”, the appellee shall set forth his arguments in the case on each
assignment of error with page references to the record. The authorities relied on shall be cited by
the page of the report at which the case begins and the page of the report on which the citation is
found.

Q: G.R. Only errors specifically assigned and properly argued in the brief will be considered by
the CA except errors affecting jurisdiction over subject matter or the validity of the judgment
appealed form or the proceedings therein, as well as plain and clerical errors. Are there situations
wherein issues or issues that were not raised in the appellant’s brief shall be considered by the
Court?
A: Yes.
(1) Grounds not assigned as errors but affecting jurisdiction over the subject matter
(2) Matters not assigned as errors on appeal but are evidently plain or clerical errors within
the contemplation of law
(3) Matters not assigned as errors on appeal but consideration of which is necessary in
arriving at a just decision and complete resolution of the case or to serve the interests of
justice or to avoid dispensing piecemeal justice
(4) Matters not specifically assigned as errors on appeal but raised in trial court and are
matters of record having some bearing on the issue submitted which the parties failed to
raise or which the lower court ignored
(5) Matters not assigned as errors on appeal but closely related to an error assigned
(6) Matters not assigned as errors on appeal but upon which the determination of a question
properly assigned, is independent.

Q: The appellant may raise arguments tending to convince the reviewing court to modify if not
reverse the lower court’s judgment.
A: Yes.

Q: How about the appellee, what is the primary role of the appellee with respect to the appeal
taken from the judgment which is favorable to the appellee?
A: He can’t assign errors in his brief, or to have the judgment modified for, to do so. He
however, can make a counter-assignment of errors in order to sustain the judgment appeal from.
He can also argue on issues raised on the trial to sustain the judgment in his favor on other
grounds even if the same were not included in the decision of the court a quo.

Q: It’s been mentioned that the submission of appellant’s brief in cases from the RTC to CA the
period is 45 days, and the submission of the appellee’s brief is to be done within 45 days upon
appellant’s brief receipt by the appellee, are there appealed cases wherein the submission of the
required pleadings is not 45 days but for a shorter period.
A: In cases of (1) certiorari, (2) prohibition, (3) mandamus, (4) quo warranto, (5) habeas corpus.
Which is 30 days and the submission of the memorandum by all parties to be done
simultaneously.

September 23, 2023

Sabby Notes.
Rule 41, when what is being questioned is the decision of the RTC rendered in the exercise of its
original jurisdiction. Rule 42, governing appeal from the decision of the RTC in its appellate
jurisdiction. Rule 43, appeal from quasi-judicial agencies to the CA. Rule 45, appeal directly to
the SC.

Cases when appeal can be regarded as a matter of right, example: (1) death penalty is reimposed
by Congress there is an automatic review to be done by the CA to the SC. Congress cannot
however enact a law withholding the remedy of appeal in cases falling under appellate
jurisdiction of the SC. (Sec. 5 par. 2 Art. 8 of the 1987 Constitution, “The Congress shall have
the power to define, prescribe the jurisdiction of the courts, while the Congress cannot enact a
law withholding the remedy of appeal in cases falling under the appellate jurisdiction of the SC”
SC shall have the power to review, revise reverse modify or affirm on appeal or on certiorari as
the law on the rules provide the decisions of the lower courts under cases enumerated under sub-
paragraphs A-E (a) cases questioning the constitutionality of a treaty, international or executive
agreements, law, presidential decree, proclamation, order, instruction, or regulation in question,
(b) cases involving the legality of any tax, impost, assessment or toll or any penalty imposed in
relation thereto (c) all cases in which jurisdiction of any lower court is in issue, (d) all criminal
cases in which the penalty is reclusion perpetua or higher and (e) all cases which only an error or
question of law is involved.)

Not all kinds of resolutions, orders or decisions rendered by the Courts can be appealed from,
only those which adjudicate the rights and claims of the parties, either on the entire controversy
or a portion thereof can be appeal from.

Ex. Case of expropriation. In a case of expropriation invokes 2 stages (1) determination of the
necessity of for the taking of private property and (2) determination of just compensation. Even
if the court renders an order finding necessity over the taking and that order can be appealed
from even if that order does not dispose of the case in its entirety.

When the resolutions, orders or decisions does not adjudicate the rights and claims of the parties
then that cannot be appealed from. The judgments or orders enumerated in Sec. 1 Rule 41 are not
appealable because those decisions do not adjudicate the rights and claims of the parties.

(1) An order denying a petition for relief or any similar motion seeking relief from judgment
(2) An interlocutory order
(3) An order disallowing or dismissing an appeal
(4) An order denying a motion to set aside a judgment by consent, confession or compromise
on the ground of fraud, mistake or duress, or any other ground vitiating consent
(5) An order of execution
(6) A judgment or final order for or against one or more several parties or in separate claims,
counter-claims and third-party complaints, while the main case is pending, unless the
court allows an appeal therefrom;
(7) An order dismissing an action without prejudice.

Sabby Notes.
The common denominator with these orders or resolutions with the exception of several
judgments is that those kinds of decisions do not truly adjudicate the claims and rights of the
parties.
In as much that you can’t file an appeal, the remedy is 65 but not the only remedy. (Mandamus
or Petition for Relief of Judgment under Rule 38)

Example: An order denying a petition for relief or any similar motion seeking relief from
judgment (Remedy can be 65 or Prohibition, Annulment of Judgment rule 47, Petition for Relief
of Judgment)

An order of execution (65, Terteria, or by filing appropriate remedy in the proper forum)

When the order is one of the orders referred to under sec. 1 rule 41, appeal is not the appropriate
remedy. Rule 41, sec. 1, you can’t file an appeal on an interlocutory order and that that the
appropriate remedy is certiorari, there are certain interlocutory orders that can’t be assailed of by
Rule 65.

 Order of the Court denying the affirmative relief/defenses in the answer (sec. 12, Rule 8)
(Remedy: proceed to trial and appeal from the main judgment and assign it as one of the
errors)
 Order of the Court submitting the case for summary judgment or judgment on pleadings
(sec. 10, rule 18) (Remedy: proceed to trial and appeal from the main judgment and
assign it as one of the errors)
 Order of the Court denying the demurrer to evidence. (Remedy: proceed to trial and
appeal from the main judgment and assign it as one of the errors)
 Order of the Court granting/denying a motion to render a judgment on the case, or have
the case decided based on the pleading submitted by the parties.
 Order of the Court denying/granting the motion for summary judgment
 A mere interlocutory order on cases governed by summary procedure.

While Certiorari is the default remedy for interlocutory orders, remember there are some cases
which can’t be assailed of by rule 65.

An order dismissing the case without prejudice, an appeal cannot be taken because the
appropriate remedy is to simply refile the case or rule 65.
Examples: (CASES WITHOUT PREJUDICE)

 First dismissal of the complaint at the instance of the plaintiff, unless the court directs
otherwise
 Dismissal of the action for failure to prosecute or failure to appear at trial
 Non-compliance with the requirement anent certification against forum shopping unless
the order of dismissal states that such dismissal is with prejudice
 Dismissal of the case based on the affirmative defense that the venue is improperly laid
 Dismissal of the case based on the affirmative defense that the plaintiff has no legal
capacity to sue

Sabby Notes.
  Dismissal of the case based on the affirmative defense that the complaint states no cause
of action
 Dismissal of the case based on the affirmative defense that a condition precedent for
filing a claim has not been complied with
 Dismissal of the case for non-payment of the correct docket fees
 Dismissal of the case because the complaint is pro-forma.

When the case is dismissed pursuant to sec. 3, rule 17, because of failure to prosecute but the
nature of dismissal is silent, it is a dismissal with prejudice. (Remedy: Appeal from the order
because that dismissal is a dismissal with prejudice.). Then after the period for filing an appeal
by instead of taking an appeal the plaintiff refiled the case, the defendant can file a motion to
dismiss to invoke res judicata.

When a case is dismissed without prejudice, then you cannot file an appeal from such order of
dismissal. The remedy is to refile the case or certiorari under rule 65.

If the case is dismissed with prejudice then you can avail the remedy of an appeal.

Example (Cases with prejudice)

 Dismissal of the case for repeated failure of the plaintiff to appear in the pre-trial
 Dismissal of the case pursuant to the ground of res judicata or prior judgment
 Dismissal of the case on the ground that the action is barred by statute of limitations
 Dismissal of the case pursuant to the affirmative defenses that the claim or demand set
forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise
extinguished
 Dismissal of the case on the ground that the claim on which the action is founded is
unenforceable under the provisions of the statutes of frauds.

There are cases where the court orders a dismissal without a court on trial but such case
dismissal is with prejudice.

Example: When the case is dismissed pursuant to sec. 3, rule 17, because of failure to prosecute
and the order of dismissal is silent on the nature thereof.

Example: Where the case is dismissed because of failure to appear in the scheduled pre-trial. The
dismissal is with prejudice.

Example: Where the case is dismissed on the ground of prescription of action or because barred
by statutes of frauds.

Example: Dismissal of the case pursuant to the affirmative defenses that the claim or demand set
forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished

Sabby Notes.
When the case is dismissed on the ground of lack of jurisdiction, the dismissal is without
prejudice.

When the case is dismissed on the ground of the court has no jurisdiction over the case, the
dismissal is without prejudice because you can refile the case.

Exception: when the case is dismissed on the ground of lack of jurisdiction and it’s the MTC
which dismisses the action. (sec. 8, Rule 40) Appeal is available as a remedy.

Example: (General Rule)

Case of ejectment: Case is cognizable by the MTC but by ignorance I filed the complaint with
the RTC. RTC dismissed the case on the ground of lack of jurisdiction, then what would apply is
sec. 1 of Rule 41, I can’t question the order of the RTC dismissing the case because the dismissal
is without prejudice and as such appeal therefore is not the appropriate remedy.

Example: (Exception)
Case of ejectment: Case is cognizable by the MTC but MTC dismissed the same, apply sec. 8 of
rule 40.

Another example: A case of ownership, possession and title with an assessed value of 1M, the
case was filed in the MTC. If the MTC would dismiss the case for lack of jurisdiction, the case is
without prejudice yet by way of exception sec. 8, Rule 40, remedy of appeal is available.

Sec. 8 Rule 40 only comes into play when the dismissal of the case on the ground of lack of
jurisdiction is directed by the first level court or by the MTC. Such that if it is the RTC which
directed the dismissal of the case for lack of jurisdiction then what would apply is the GR under
sec. 1 Rule 41.

On sec. 8, Rule 40, if the case is elevated on the RTC and if the RTC finds out that indeed the
case is not cognizable by the MTC but the RTC, the RTC will not dismiss the case, it will assume
jurisdiction over the case, issue summons over the defendant directing the defendant to answer
for the complaint, have a pre-trial, trial and render a decision based on the merits.

In the event the RTC renders a decision, if you want to question the decision of the RTC, the
remedy is Rule 41 because it rendered a decision as if that case was originally filed before the
RTC.

Example: I filed the case in the MTC, a case for recovery of title, ownership, possession with an
assessed value of 200k. The judge of the MTC, claimed it had no jurisdiction over the case,
dismissed the case. The order is a dismissal without prejudice but way of exception to the rule,
appeal is available. Acting on the appeal, the RTC found out that contrary to the MTC, the case is
actually cognizable by the MTC such that the RTC remanded the case back to the MTC to
adjudicate the case. If you were the defendant, what would be the remedy to question the order
of the RTC to question the order? – The remedy is certiorari under Rule 65 or Prohibition.

Sabby Notes.
Example: In the MTC, a case for recovery of title, ownership, possession with an assessed value
of 1m, claiming that it had jurisdiction over the case, the MTC conducted a trial and rendered a
judgment. You can appeal the decision of the MTC, but on appeal the RTC determined that it was
an error on the part of the MTC to take cognizance of the case and conducted hearing thereon. In
this case, the RTC can allow the parties to adduce their evidence and if the same is not, in
rendering the decision, RTC is exercising its original jurisdiction. (dismissal without prejudice)

Filing a MR is not a condition sine qua non before filing an appeal.

While generally the decisions of the MTC can be reviewed on appeal by the RTC, there are
decisions of the MTC which cannot be reviewed on appeal by the RTC like, decision of the MTC
in small claims cases are immediately final and executory and unappealable.

 Collection of sum of money not exceeding 1 million arising from contract of loan,
Contract of lease, contract of services,
 enforcement of barangay amicable settlement agreements and arbitration awards, where
the money claim does not exceed One Million Pesos (₱1,000,000.00), and
 contract of sale of personal property, excluding the recovery of the personal property,
unless it is made the subject of a compromise agreement between the parties.

Lawyers are prohibited in assisting the parties and appearing in small claims cases.

Another exception wherein the decision of the MTC cannot be appealed to the RTC, is when the
decision of the MTC in the exercise of its delegated authority to hear and decide cadastral
proceedings and land registration cases. However, under CA 141 it’s actually the RTC that is
vested to hear and adjudicate cadastral proceedings and land registration cases but if only to
unclog the dockets of the RTC, sec 34 of BP 129, gives the MTC the delegated authority to hear
and decide cadastral proceedings and land registration cases where the assessed value of the
property does not exceed 100k. But when the application for land registration cases is not
opposed, then that case can be decided by the MTC regardless of the assessed value of the real
property involved. But when there is an opposition in the land registration proceedings, the MTC
can only take cognizance of the case if and when the assessed value of the contested real
property does not exceed 100k. However, sec 4, BP 129, provides that the decision of the MTC
in cadastral proceedings and land registration cases shall be appealable in the same manner as the
decisions of the RTC. If you want to question the decision of the MTC in cadastral proceedings
and land registration cases then the appeal should be before the CA.

Rule 41 governs appeal from the RTC to CA, but the kind of decisions that are appealable from
RTC to CA are those decisions which have been rendered by the RTC in the exercise of its
original jurisdiction because if what is being questioned is the decision of the RTC in its
appellate jurisdiction, then what will apply is Rule 42.

If the decision is rendered by the RTC in the exercise of its original jurisdiction but what is being
questioned is a pure question of law then your remedy is not rule 41 but rule 45 instead directly
to CA.

Sabby Notes.
If the case is dismissed by the MTC for lack of jurisdiction, and when the case is elevated on
appeal to the RTC and the RTC finds that the case is cognizable by the RTC, it will not dismiss
the case but assume jurisdiction over the case. The RTC will render a decision as if it was
originally filed with the RTC even if the case originated from the MTC. The remedy to question
the same based on the question of fact or mixed question of law is not rule 42 but rule 41.

When you are questioning the decision of the RTC in its appellate jurisdiction, then if you want
the question then the remedy is Rule 42.

There are cases decided by the RTC on appeal that cannot be elevated for Petition for Review
before the CA under Rule 42. The decisions on appeal rendered by appeal on cases governed by
the rules of summary procedure. These decisions are final and executory and unappealable.

 Forcible entry and unlawful detainer cases,

 civil actions and complaints for damages where the claims to not exceed 2m,
 cases enforcement of barangay amicable settlement agreements and arbitration award
where the money claim exceeds 1m but provided that the same must not be enforced
within 6 months from the date of the settlement agreement,
 cases solely for revival of judgment of any first level court,
 civil aspect of violations of BP 22.

Cases governed by the rules on summary procedure are cognizable by the MTC, but unlike in
small claims cases the complaints and answers are pro-forma, the cases governed by the rules on
summary procedure needed to be assisted by a lawyer and in the preparation of the complaint
and answer. Lawyers should assist during the hearing but there is no full-blown hearing in these
cases, the case will be decided based on the complaint, answer filed by the parties and the basis
on the position papers that will be required by the Court from the parties, attaching thereto the
affidavits of their respective witnesses.

Decisions of the MTC in small claims cases are unappealable while the decisions of the MTC in
the cases governed by the rules on summary procedure are appealable from the MTC to the RTC;
however, where the RTC decides on the appeal on the cases governed by the rules on summary
procedure the decision of the RTC on appeal cannot be reviewed further by the CA via rule 42 or
45.

When you encounter an adverse ruling on appeal in cases governed by the rules on summary
procedure the way to question the decision of the RTC is to file a MR from the judgment of the
MTC in appealed cases governed by the rules on summary procedure, if denied, is file certiorari
under Rule 65 the ground is abuse of discretion amounting to lack or excess or jurisdiction.

Rule 43 governs appeals from the quasi-judicial agencies to CA, the kind of decisions rendered
by the quasi-judicial agencies are appealable only in their respective quasi-judicial functions.
When the resolution is issued by the quasi-judicial agency in the exercise of their respective
administrative functions, then you cannot question the same in rule 43.

Sabby Notes.
If you want to question the resolution issued by a quasi-judicial agency as thus issued in the
exercise of its quasi-judicial function then the remedy is to file an ordinary civil action before
RTC, being the court of general jurisdiction.

AGAIN. Only those decisions rendered by the quasi-judicial agency in the exercise of their
respective quasi-judicial functions are appealable to the CA under Rule 43.

The decisions rendered by the 3 constitutional commissions (COMELEC, COA and CSC) are
reviewable by the SC on certiorari but with respect to the decisions of the CSC in the exercise of
its quasi-judicial function, such decisions are not appealable directly by the SC because such
decisions of the CSC are appealable rather to the CA pursuant to RA 7902.

The decisions of the Ombudsman in the administrative cases are appealable to the CA via rule
43. While it is true that under sec. 27 of the Ombudsman’s act, the decisions of the Ombudsman
in administrative cases are appealable to the SC under Rule 45, but it was held in the Desierto
case, it is unconstitutional.

If you want to file an appeal from the decision of the LA in illegal dismissal cases for example,
then you can file an appeal with the NLRC, if you want to question the decision of the NLRC
then you can go to the CA. While the decision of the NLRC can be reviewed by the CA but such
review is not pursuant to Rule 43 because that can only be had under Rule 65.

Rule 45 governs petition for review on certiorari to the SC if you want to question the decision of
the CA, Sandiganbayan, RTC and Court of Tax Appeals. If using Rule 45, only raise pure
questions of law but subject to exceptions.

Rule 45 shall be applicable to both civil and criminal cases with exception to criminal cases
where the penalty imposed is either death, reclusion perpetua or life imprisonment. Such when
the case decided by the SC where the penalty imposed is reclusion perpetua, death, life
imprisonment, accused is prohibited from having a direct recourse with the SC because he
cannot avail of petition for review under rule 45.

In Rule 40 when you want to appeal from the decision of the MTC to RTC in cases wherein the
decisions of the MTC can be appealed, you can raise questions of facts, pure questions of law or
mixed questions of facts and law. Even you question the decision of the MTC on pure question
of law, you are not allowed to go directly to SC. Ordinary appeal will suffice.

If you want to avail of Rule 41, wherein the decision of the RTC is rendered in the exercise of its
original jurisdiction then you can only raise questions of facts or mixed questions of facts and
law because if what you are raising is pure questions of law, the remedy is Rule 45 to SC.

But when the decision of the RTC is in the exercise of its appellate jurisdiction then the decision
of the RTC can be appealed to the CA via Rule 42, you can raise questions of facts, pure
questions of law or mixed questions of facts and law.

September 30, 2023

Sabby Notes.
Where the decisions of the MTC is rendered in small claims cases, you can’t file a MR because
that’s a prohibited motion, much less you can’t file a notice of appeal.

If the decision of the MTC is rendered in the cadastral proceedings or land registration cases
pursuant to section 34 of BP 129, then the appeal shall be taken to the CA.

As for Rule 41, appeal from the RTC to the CA, applicable if the RTC’s decision in question is in
its exercise of its original jurisdiction. Otherwise, if the impugned judgment of the RTC in its
exercise of its appellate jurisdiction then, the recourse is rule 42.

Petition for Certiorari is an original action. Even if what was questioned in the RTC was the
denial of the MTC of the notice of appeal but considering that the Petition for Certiorari under
Rule 65 is an independent action, not a mode of appeal, then if that case will be sent to the RTC,
the court is deciding the case in its exercise of its original jurisdiction.

When the impugned judgment of the RTC is rendered in a case that actually emanated from
MTC, elevated to RTC pursuant to sec. 8 Rule 40, where the RTC would have assume
jurisdiction over the case, if you want to question the decision of the RTC, the appeal should be
under Rule 41.

If what you’re questioning with respect to the decision of the RTC in pure questions of law and
the decision is rendered in its original jurisdiction, the remedy is Petition for Review in Rule 45
with SC.

If the questioned decision of the RTC is rendered in the exercise of its appellate jurisdiction,
even if what is questioned is purely questions of law, the remedy is with the CA.

As for Rule 42, there are cases decided on appeal which decided by the RTC on appeal which
can no longer be appealed from and such decisions are final and executory, cases governed by
the rules on summary procedure. (Remedy is MR (however not allowed on the MTC level, only
on appeal by the RTC)
As for Rule 43, the kind of judgments or resolutions that can be appealed from going to the CA
are those rendered by the quasi-judicial agencies in the exercise of their quasi-judicial function.
Such that, where the judgment or resolution is issued by a quasi-judicial agency in the exercise
of its administrative function then it cannot be appealed to CA but rather should be filed with the
RTC (court of general jurisdiction). You can raise questions of fact, questions of law or mixed
questions of facts and law.

As for decisions of the Ombudsman and Sandiganbayan in administrative cases, the recourse is
go to the CA under Rule 43.

As for the decisions of the NLRC, the recourse is to the CA but not covered by Rule 43 but under
certiorari under Rule 65, grave abuse of discretion amounting to lack or excess of jurisdiction.

Sabby Notes.
Sec. 9, Rule 55, while it is true that Rule 45 is available in both civil and criminal cases but the
same is wanting in application with respect to the penalty imposed is death, reclusion perpetua or
life imprisonment. When the penalty imposed on the accused is either death, reclusion perpetua
or life imprisonment then the recourse is go to the CA by filing a Notice of Appeal. If the CA
affirms the judgment of conviction, then you can go to the SC by filing a Notice of Appeal
instead of filing of Petition for Certiorari under Rule 45.

If what is imposed in the accused is the supreme penalty of death, even if the accused does not
appeal the judgment of conviction there is automatic review. The review shall first be conducted
by the CA and if warranted, then there is final review to be conducted by the SC even without
filing of the notice of appeal and even without filing for petition for review on certiorari under
Rule 45.

The prohibition of application of Rule 45 with respect to cases with the penalty of death,
reclusion perpetua or life imprisonment is more advantageous to the accused.

If you file an appeal under Rule 40, you can raise questions of fact, questions of law or mixed
questions of facts and law. No direct recourse to the SC from MTC.

In Rule 45, as a rule, you can only raise pure questions of law but with exceptions.

If you want to appeal the decision of the MTC to the RTC, file a notice of appeal except in
situations where record on appeal will be required, record on appeal will be required if it will
require multiple appeals. (special proceedings, when the court rendered separate or several
judgments, a case for recovery of property with accounting, partition and accounting, foreclosure
and mortgage of real property, and expropriation proceedings)

Appeals to the CA from RTC under Rule 41, file a notice of appeal except in situations where
record on appeal will be required.

Under Rule 41, there are 2 grounds wherein the notice of appeal may be denied due course: (1)
when the notice of appeal is filed beyond the reglementary period (2) when there is no payment
of lawful fees. In other words, even if you pursued the wrong remedy it doesn’t authorize the
court to deny due course to the appeal.

When what is required to file an appeal among others is filing the Notice of Appeal and/or
Record on Appeal, you need to file this notice of appeal among others in the trial court which
rendered the questioned judgment.

But when the remedy is Petition for Review under Rule, 42, 43, 45, such Petition for Review
would have to be filed in the higher court but you need to furnish a copy of the petition to the
RTC or quasi-judicial agency which rendered the appealed judgement.

If the remedy is Rule 45, even if you’re taking direct recourse from the RTC to the SC, Petition
for Review on Certiorari would have to be filed in the SC, but need to furnish a copy of the
petition to the RTC or quasi-judicial agency which rendered the appealed judgement.

Sabby Notes.
In general, where the appeal only requires the filing of the Notice of Appeal and/or Record of
Appeal, such notice of appeal must be filed in the trial court which rendered the judgment, but
when the remedy is Petition for Review, 42, 43, 45, that petition must be to the higher court.

As for the period on taking an appeal, we have 15 days for cases requiring a mere notice of
appeal, 30 calendar days for cases requiring multiple appeals and records on appeal; and 48
hours with respect to habeas corpus.

As for Petition for Review on Rule 42, the period to appeal is 15 days which can be extended for
another 15 days and can be extended if justified by the situation for another fifteen days

Petition for Rule 43, the period to appeal is 15 days which can be extended for another 15 days.

Petition on Review on Certiorari under Rule 45, the period to appeal is 15 days which can be
extended for another 30 days.

The default extension under Rule 42 and 43 is 15 days.

The period to appeal under Rule 40 and 41 shall be not extendible. You can’t file an extension of
time under Rule 40 and 41.

Under Rule 42, 43, 45, the original 15-day period to file an appeal shall be reckoned from the
date you received the copy of the first decision or where you filed a motion for new trial or MR
then, there will be a fresh period of time to file a petition.

While extension of time may be granted for the petition under rule 42, 43, 45, but no such
permission to extension is given under the Rule 40 and 41.
For purposes of standardizing the computation of the period to appeal, then the Court ruled, then
there shall be a fresh period of time to file an appeal to be reckoned from the date that a party or
the movant receives the copy of the order of the court denying the MR. The fresh period of time
within which to file a notice of appeal, following the denial for motion for new trial or MR,
applies equally to rule 40, 41, 42, 43, 45.

For transmittal or records – 40, 41 ordinary transmittal to the higher court. In cases of record of
appeal, only the record of appeal will be submitted to the higher Court.
For transmittal or records – 42, 43, 45 the records will only be elevated to the higher Court if
when the same is required by the higher court.

As for the subsequent pleadings to be filed, example you filed an appeal from the MTC to the
RTC, after the filing of the notice of appeal, then the records will be elevated from the MTC to
the RTC, once the records are elevated, you expect that the RTC will issue an order directing the
submission and filing of the appellant’s memorandum in so far as the appellant is concerned and
the RTC will also direct the appellee to file his appellee’s memorandum within 15 days from the
receipt of the appellant’s memorandum.

Sabby Notes.
If you want to appeal from the RTC to the CA, where the questioned judgment of the RTC is
rendered in the exercise of its original jurisdiction and the appeal is reckoned on mixed questions
of facts and law, or questions of law or questions of fact then if the case is elevated from the RTC
to the CA, then CA will issue a notice directing the parties for the appellant to file his appellant’s
brief within 45 days from receipt of the CA, and for the appellee to file his brief within 45 days
from the receipt of the appellant’s brief. And the appellant if he want to file a reply, within 20
days from the receipt of the appellee’s brief.

With respect to decisions of the RTC in cases for Certiorari, Prohibition, Mandamus, Quo
Warranto and Habeas Corpus which are elevated on appeal to CA under Rule 41, what is
required is the submission of the memoranda within the non-extendible period of 30 days from
receipt of the CA’s order. The submission of the memoranda should be done simultaneously.

What will happen if the appellant under rule 40 and 43, failed to file an appellant’s brief? – it
will be a ground for the dismissal of the appeal.

But when it is the appellee who failed to file an appellee’s brief, it will not follow that the appeal
will be granted, but he may face sanctions.

As for Rule 42, if the CA finds the appeal to be meritorious, then the CA will direct the
submission of the comment of the adverse party. If warranted, the CA will set the case for oral
arguments and thereafter, there will be submission of memoranda. The submission may be
directed with or without a hearing.

Under Rule 42 and 43, what is required by the CA is comment and then memoranda. Same thing
with 45, SC will require the submission of comment.
With respect to the effect of the perfection of the appeal, to sum up the rule that the perfection of
the appeal is personal to the parties concerned.

Example: I filed a case against Mr. Gravador and the judgment is rendered adverse to me,
suppose that I received the copy of the adverse judgment on Sept. 1 and I had until Sept. 16 to
file my appeal and on the part of Mr. Gravador, he received his own copy of the decision on
Sept. 15. Even if I filed my Notice of Appeal and had perfected my appeal on September 10, the
Court still retains jurisdiction over that case because the period to appeal on the part of Mr.
Gravador has not yet expired. My appeal is already perfected but the Court still retains
jurisdiction over the case the period to appeal is not yet lapsed on the part of Mr. Gravador.
When that happens, the Court can act on any motions that may be filed within that period,
including but not limited to; issuance of orders or the perfection and preservation of the rights of
the parties, the court has still authority to approve compromises or appeals of the indigent
litigants order execution pending appeal, and even the withdrawal of appeal.

As for Rule 42, when what is being questioned is the decision of the RTC in the appellate
jurisdiction, the perfection of the appeal is also personal to the party-disputant who files an
appeal or petition for review under Rule 42. The difference here is even if the RTC doesn’t have
jurisdiction over the case, for as long as the CA had not given due course yet to the petition for

Sabby Notes.
review, then the court can still act on approval of the appeal by the indigent party, approval of
compromise agreement and execution pending appeal.

With respect to the effect of filing an appeal, the appeal under Rule 40 stays the judgement that is
being questioned on appeal except to discretionary execution sec. 2, rule 39 and in actions for
injunction, receivership, accounting and support which decisions can be enforced
notwithstanding the pendency of an appeal. Same thing applies with appeal under Rule 41.

In intra-corporate cases, a decision rendered in that case is immediately final and executory even
if there is an appeal.

Rule 42 also stays the enforcement of the questioned judgment except with respect to
discretionary execution sec. 2, rule 39 and in actions for injunction, receivership, accounting and
support which decisions can be enforced notwithstanding the pendency of an appeal.

Rule 43, with respect to quasi-judicial agencies to the CA, when there is an appeal, that appeal
does not stay the questioned judgment.

As for Rule 45, also stays the enforcement of the judgment that is being appealed from except to
discretionary execution sec. 2, rule 39 and in actions for injunction, receivership, accounting and
support which decisions can be enforced notwithstanding the pendency of an appeal.

OCTOBER 7, 2023

Rule 46, provides that a party should be instituted in the action. Petitioner and respondent.
For cases cognizable by the MTC and cases filed in the RTC, the parties instituting the action
specially in ordinary civil action shall be referred to as the plaintiff whereas the defending party
shall be referred to as defendants.

In cases filed before the higher courts, CA, the one filing the case will be referred to as the
petitioner while the opposing party shall be referred to as the respondent.

Section 2 provides that the rule pertaining to rule 46 shall be applicable to all original cases filed
before the CA such as certiorari, prohibition and mandamus and quo warranto.

1st and 2nd par of sec. 2, are not totally inconsistent with each other, it’s just that what is
emphasized under the 2nd par of sec. 2 is that these actions certiorari, prohibition and mandamus
shall be deemed governed by Rule 65, quo warranto shall be governed mainly by Rule 66 and
petition for annulment of judgment shall be governed by Rule 47. But where the provisions
under Rule 47, rule 65, and 66 are insufficient, that is when rule 46 shall be applied in a
suppletory manner.

Certiorari, prohibition, quo warranto and mandamus and special civil actions – that there are
particular rules as promulgated by the SC. That generally the provisions governing the ordinary
civil actions shall not be applicable with respect to special civil actions but as ruled by the SC,

Sabby Notes.
where the provisions governing special civil actions are sufficient then apply by suppletory
manner the provisions governing ordinary civil actions.
CASE: there was a petition for certiorari filed but even before the respondent could file his or
comment thereon, the petitioner in the case file a motion to withdraw the petition for certiorari. It
was granted by the CA but after the motion to withdraw the certiorari was granted, petitioner
however had a change of heart that he wanted to reinstate the petition for certiorari that was
withdrawn, the CA was at a loss how to act on the motion to revive because if you look at the
provision under Rule 65, there is nothing says the withdrawal or approval of the petition for
certiorari. In the case, what was supplied by the SC was the provision under rule 50 in the
essence that there may be a withdrawal of an appeal and where the same is granted then the
appealed decision shall become final and executory.

As for the content of the petition to be file before the CA referring to original actions filed: full
names, actual addresses of all the petitioners and respondents, concise statement of the matters
involved, the factual background of the case, and the grounds relied upon for the relief prayed for
and also include the material dates indicating the timeliness of the petition.

In Rule 65, it shall include the material dates showing when the notice of judgment or final order
or resolution subject thereof was received, when a motion for new trial or reconsideration if any
was filed and when the notice of denial thereof was received.

If you want to file a petition for certiorari under Rule 65, you need to file it within 60 days
reckoned from the receipt of the impugned resolution, order or judgment. When you filed a MR,
such 60 day period shall be reckoned from the day of the receipt of the order denying the MR or
Motion for New trial.

In stating the material dates, it’s not enough to state the date when you received the copy of the
main order that you are questioning in certiorari, you also need to state the date when you filed
an MR if any as well as the date that you are in receipt of the order denying the MR. To establish
the certiorari filed within the reglementary period.

IMPORTANT: attach certification of non-forum shopping in the CA. Indicating that you have
not filed a similar petition or case in other court, tribunal or agency. If any, you should inform the
court or CA of the filing or pendency of the similar case. If that happens that the petition is bereft
of the supporting certification against for non-forum shopping, it could be a ground for dismissal.
Also attach the petition the duplicate or legible copy or certified true copy of the impugned
judgment and plain copies of other pertinent pleadings which are relevant to the case.

Unlike in the MTC or RTC where the court has to issue summons to acquire jurisdiction over the
person, in original actions filed in the CA and SC, these courts will not be issuing summons, the
CA and SC, they will acquire by issuing an order and serving such order on the respondent, it
may take as a directive directing the respondent to file his comment. It is important is that for
cases originally filed in the SC and CA, no summons to be issued, instead issuance of the order
to the respondent informing him of the initial action taken by the SC/CA.

Sabby Notes.
Even when you filed an original action with the CA/SC, there is no certainty that it would be
given due course. It will be evaluated by the CA/SC and there is a possibility that it will not be
given due course. (a technical committee will first check on the pleadings to check if there is
meritorious)

If there are issues that need to be determined with respect to cases originally filed in the CA,
under the rules the reception of evidence with respect to factual issues may be conducted by any
justice of CA or at a discretion of the CA or may be delegate to the judge of the lower court.

RULE 48 - In cases originally filed with the CA or appealed cases, there are situations where the
CA will conduct a preliminary conference. There might even be a possibility that the court will
collect mediation fee. Even when the case is elevated on appeal to the CA but the CA thinks that
it could still be settled amicably between the parties the case may still be referred to the Court
Annexed Mediation. But when what is filed before the CA is an original action, and the action is
not dismissed outright then there is a chance that the CA will conduct a preliminary conference.

(See purposes in Sec. 1 of Rule 48)

Letter C of Sec 3 – importance is to inspect the original evidence because there might be
instances that a party refuses to give the original copy and would produce a photocopy instead. It
is important when the CA will grant a Motion for New Trial but only for newly discovered
evidence.

If you file Motion for New Trial with MTC/RTC you may have several grounds FAMEN. But in
the CA, the only ground allowed is newly discovered evidence, when it is granted, there will be
adjudication of document preparatory to the presentation of evidence.

If you don’t show up as a plaintiff in the preliminary conference, then it’s a ground for dismissal
of the petition because it is akin to pre-trial conducted by the MTC/RTC as the case may be. If
only the counsel is present, he must have an SPA executed by the client authorizing the counsel
to represent him during the preliminary conference.

Oral arguments are usually done in the CA but seldom happens. Even in case originally filed in
the CA, the conduct of oral arguments is different, in other words, it does not necessary follow
when there’s a case originally filed in the CA that the CA will conduct an oral argument, it’s
within the discretion of the CA whether or not it will conduct one. (akin to mooting)

Rule 49, Sec 3 – no oral arguments for motions in cases filed before the CA.

Rule 50 – grounds for dismissal of appeal (see Rule 50 sec. 1)

In some cases the non-payment of the appeal fee on time will not necessary result to the
dismissal of the appeal. (Case, there was a time when there was a 6-day delay and there was a
relax application of the rules) – not a mandatory rule (MCIAA vs. Mangubat case)

Sabby Notes.
Under Rule 55, you’re supposed to raise only questions of law but with exceptions, the SC at its
discretion may give due course to a questions of fact on the Petition for Review Rule 45, may
refer to the determination of the factual issues to the CA. There’s still a chance even if what you
filed before the SC is petition for review under Rule 45, which can only be pursued by pure
questions of law but then you likewise raised pure questions of fact there is still a chance the
petition will not be dismissed by the SC but refer the decision to the CA but not the other way
around when you pursued the wrong remedy in the CA where the case for the proper remedy is
the SC, when questioning the decision of the RTC in original jurisdiction of pure questions of
law, but filed the wrong remedy with the CA, then CA cannot endorse the petition to the SC.
Hence the petition will be dismissed.

Rule 51 – see section 1 for when the case is deemed submitted for judgement.

If the appellant could file a reply brief but the appellant did not file the reply brief, the CA will
not wait for it because as soon as the period to file has prescribed, then the case will be submitted
for decision.

Where the period to file the last pleading has expired, the case will be submitted for judgment.

In cases where the CA conducted a hearing, you can reasonably expect that after the hearing, the
parties will be directed to file the appropriate brief or memoranda and the case will be submitted
for decision the moment the period to file the last pleading has expired or pleading was filed.

When you are required to file a comment by the CA, and you failed to do so, there will be
disciplinary sanctions.

Ordinarily, cases before the CA will be decided by the CA composed of 3 justices of the CA. as
required under sec. 3 of Rule 51, the three members or justice of the CA are required to
participate during the deliberation of the case, in order for the division of the CA to come up with
a judgment, resolution or decision on a case, what is required the unanimous vote of the three
justice who are members of the division. (requirement sine qua non)

Where the required unanimous vote has not been obtained, then a special division of 5 will be
formed and would be required is a unanimous vote of the 3 justices of the division. As for
matters taken up by the CA En Banc, what is required to constitute a quorum is a simple majority
of the members of the CA.

Cases or procedures filed or pending before the SC – Rule 56.

Only cases for certiorari, prohibition, mandamus, quo warranto, habeas corpus, disciplinary
proceedings against members of the judiciary and attorneys and cases affecting ambassadors,
other public ministers and consuls will be originally filed before the SC.

Certiorari, prohibition, mandamus, quo warranto, habeas corpus are not exclusive because there
are other courts having concurrent jurisdiction over such cases. (RTC, CA and SC) But when it is
the RTC which issued that writ of prohibition, can only be enforced within its territorial region,
but when the writ of prohibition is however issued by the CA/SC it can be enforced anywhere in

Sabby Notes.
the ph. To observe the hierarchy of courts, if you are not a popular lawyer, observe the hierarchy
of courts, such that instead of filing the writ of prohibition before the SC, you file it with the
RTC.

When you filed a petition for certiorari with the RTC, you are not allowed to file the same
pleading with other courts. If done, all petitions will be dismissed.

As for cases affecting ambassadors, other public ministers and consuls when the same will be
filed originally with the SC, its authority is not exclusive. (RTC/SC) Cases affecting
ambassadors, other public ministers and consuls may be only filed with the RTC and SC.

As for disciplinary proceedings against members of the judiciary and attorneys with respect to
imposing the penalty of suspension or dismissal of service, it’s only the SC who has the authority
to act on these cases.

Sec. 3, Rule 56 – Rule 45 is applicable to both civil and criminal cases except in criminal cases
where the penalty imposed is death, reclusion perpetua or life imprisonment because you may
have the direct recourse from the RTC to the SC via rule 45 when what is being questioned is
pure question of law, there is no direct recourse from the RTC to the SC in criminal cases where
the penalty penalty imposed is death, reclusion perpetua or life imprisonment because the case
must first go through the CA by way of intermediate review. (file first a notice of appeal with the
CA and when sustained, file a mere notice of appeal again in SC)

The fact that Rule 45 is not available to cases when penalty imposed is death, reclusion perpetua
or life imprisonment, advantageous to the accused. (2-tiered remedy to secure reversal of the
judgment) If death is imposed on appeal to the SC, no need to file notice of appeal there is
automatic appeal.

In criminal cases when the penalty imposed is death, reclusion perpetua or life imprisonment,
factual issues may also be considered by the SC.

Sec. 5 Rule 56 – see grounds for dismissal of appeal.

1. Failure to File an appeal within the reglementary period
2. Lack of merit in the petition
3. Failure to pay the requisite docket fee and other lawful fees or make a deposit for costs;
4. Failure to comply with the requirements regarding proof of service and contents of and
the documents which should accompany the petition;
5. (e) Failure to comply with any circular, directive or order of the Supreme Court without
justifiable cause;
6. (f) Error in the choice or mode of appeal; and
7. (g) The fact that the case is not appealable to the Supreme Court.

Sec 7, Rule 56 – supposedly when SC En Banc is equally divided in opinion, or the necessary
majority vote cannot be obtained, and what is filed is an original petition (certiorari), considering
that the SC En Banc is equally divided in opinion, then the petition will be dismissed.

Sabby Notes.
EXAMPLE: You filed a petition for certiorari with the SC (original action), but 7 voted in favor
of the petition and 7 voted against it, and 1 abstained. When this happens, then the original
petition will be dismissed.

Same result when what is under consideration is an incidental matter and the SC En Banc is
equally divided in opinion or the necessary majority vote cannot be obtained, and the petition
was dismissed, you filed an MR, in considering the MR, SC En Banc is equally divided in
opinion or the necessary majority vote cannot be obtained; when that happens, the MR will be
denied.

A different rule is said when what is pending before the SC is an appeal in a civil case, if that
happens, and the SC En Banc is equally divided in opinion or the necessary majority vote cannot
be obtained, then it will result in the affirmance of the appealed decision of the civil case.

A different rule is said when what is pending before the SC is an appeal in a criminal case, SC
En Banc is equally divided in opinion or the necessary majority vote cannot be obtained, then it
will result is the appeal will be given due course and instead, the judgment of conviction will be
reversed. (Sec. 3 of Rule 125)

Article 8, 1987 Constitution:

Section 4. (Cases to be heard by SC En Banc)

(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It
may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall
be filled within ninety days from the occurrence thereof.

(2) All cases involving the constitutionality of a treaty, international or executive agreement, or
law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules
of Court are required to be heard en banc, including those involving the constitutionality,
application, or operation of presidential decrees, proclamations, orders, instructions, ordinances,
and other regulations, shall be decided with the concurrence of a majority of the Members who
actually took part in the deliberations on the issues in the case and voted thereon.

(3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a
majority of the Members who actually took part in the deliberations on the issues in the case and
voted thereon, and in no case without the concurrence of at least three of such Members. When
the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine
or principle of law laid down by the court in a decision rendered en banc or in division may be
modified or reversed except by the court sitting en banc.

Section 5. The Supreme Court shall have the following powers:

Sabby Notes.
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and
consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.

(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed
in relation thereto.

(c) All cases in which the jurisdiction of any lower court is in issue.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved.

Admin Matter 10—4-20-SC

7. Rule 4, Section 3

"SEC. 3.Administrative functions of the Court. — The administrative functions of the Court,
whether en banc or in division consist of, but are not limited to, the following:

"(a)disciplinary and administrative matters involving justices, judges and court personnel;

"(b)the temporary assignment of judges to other stations as public interest may require;

"(c)the designation of judges from another administrative jurisdiction in the absence of judges
that can be designated to hear and decide inhibited cases;

"(d)the request of judges for extension of time within which to decide cases submitted for
decision;

"(e)the transfer of cases, from one court, administrative area or judicial region, to another, or the
transfer of venue of the trial of cases to avoid miscarriage of justice;

"(f)the amendment, modification or revocation of administrative orders and circulars issued by

the Court;

"(g)the policy consideration and determination of matters and issues;

Sabby Notes.
"(h)matters involving the Judicial and Bar Council (JBC) or the Philippine Judicial Academy
(PHILJA) in the exercise of the Court's supervisory authority over them; and

"(i)other matters similar or analogous to the foregoing.

In cases filed before the CA, you are required to file the appropriate briefs (appellant’s and
appellee’s or reply), same with SC required to submit the memoranda.

In cases before the lower courts, required to file pleadings such as but not limited to complaints,
answer, reply, rejoined as the case may be and even various motions.

With respect to pleadings to be filed before the Courts of Law (MTC, RTC, CA,SC,
Sandiganbayan) there is a circular governing the margins or fonts of the allegations therein.
(Efficient paper rule)

GR: 7 copies should be furnished, but for CA, Sandiganbayan, Court of Tax Appeals, SC, 3
copies is enough, one original and 2 certified true copies with annexes.

When you are to file the pleadings before the SC, if you want to file personally, equally
mandated to file with the SC soft copies of the pleadings as well as the annexes in pdf format,
either email or compact disc.

OCTOBER 14

Q: Why is preliminary attachment considered a provisional remedy?

A: Because this is availed of while the main case is pending or being adjudicate or before the
finality of judgment to secure the favorable judgment that may be rendered in the case in favor of
the applicant and there’s no guarantee that the applicant will be the winning party in the case.

Q: Who can apply for the issuance of writ of preliminary attachment?

A: Anyone.

Q: I filed a case against you, I am the plaintiff and you are the defendant, can you apply for
issuance of writ of preliminary attachment when you are the defendant in the action?
A:

Q: What are the situations where the defendant may apply for preliminary attachment?
A:

Sec. 1 of Rule 57, writ of preliminary attachment can be applied by plaintiff or any proper party
or the defendant in an action in connection with a cross claim or counter claim.

Q: Can that be allowed in filing a complaint?

A:

Sabby Notes.
Q: I filed a case against you, in the complaint I did implead a name of a third party even if that
third party is your solidary debtor. To get a reimbursement from a third party, you filed a third-
party complaint. Can you file for a writ of attachment with respect to third party complaints?
A: Yes.

Q: Can the court issue a writ preliminary attachment without prior notice and hearing or ex
parte?
A: Yes, at the commencement of the action for which the action is integrated in the complaint.

Q: What if the application for writ of preliminary is filed in court only after the court has
rendered a decision in the case and the case is pending appeal? Does it need notification and
hearing?
A: Yes, prior notice and hearing is required when it is filed after service of summons or the court
has rendered a decision and the case is pending appeal.

Q: When the court issued a writ ex parte, can the court implement it outright even without
acquiring jurisdiction or even before the court could acquire jurisdiction over the adverse party?
A: No, as a general rule, no levy on attachment pursuant to the writ issued under section 2 hereof
shall be enforced unless it is preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint, the application for attachment, the applicant’s
affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines.
(Sec. 5, Rule 57) But subject to exceptions:
a) Where the summons could not be served personally despite diligent efforts, or
b) Where the summons could not be served by substituted service despite diligent efforts, or
c) The defendant is a resident of the Philippines temporarily absent therefrom, or
d) The defendant is a non-resident of the Philippines, or
e) The action is one in rem or quasi in rem.

Q: Enumerate the grounds for the issuance for the writ of preliminary attachment?
A:
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 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

Sabby Notes.
 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.

Q: Among the grounds for the issuance of writ of preliminary attachment, in an action for the
recovery of a specified amount of money or damages, other than moral and exemplary. When an
action is for moral and exemplary damages, is application for writ of attachment allowed?
A: No, because the amount is not fixed, such damages is discretionary with the court.

Q: Suppose I obtained a loan from you in the amount of 10m, when the obligation matured, I
didn’t pay it and before you filed a case in court you learned that I was leaving for Israel to look
for a job. Can you apply for a writ of preliminary attachment?
A: No, it is not enough because it needs a compelling evidence that the defendant not just wanted
to depart but also with intent to defraud his creditors.

Q: One of the grounds, when the person against whom the writ is applied is trying to dispose of
his properties to defraud the creditors. Suppose I obtained a loan from you in the amount of 10m,
when the obligation matured, I didn’t pay it and I disposed of my major assets to defray the cost
of my hospitalization due to my illness. Does that authorize you to apply the issuance of the writ
of preliminary attachment?
A: No there must be an intent to defraud to his creditors.

Q: When there is fraud in contracting the obligation or dolo causante or dolo incidente. Give me
an example when contracting an obligation one is of dolo causante.
A:

Q: Give an example of dolo incidente.

A:

Q: Another ground is embezzlement of money or property by a public officer, supposed you are a
public officer, the treasurer of a government agency and embezzled the funds in your possession
and a case was filed against you with a writ of attachment, if that writ is issued by the court, can
the writ be implemented against your property even if what is embezzled is not a parcel of land
but public funds?
A: The law does not differentiate as to which properties are subject to attachment, it doesn’t state
that when the case is about embezzlement then what can be attached is the embezzled property or
money.

Q: What is the distinction between writ of preliminary attachment and garnishment?

A: In preliminary attachment, the court takes custody of the property of the party against whom
the attachment is directed pending litigation.
In Garnishment, a kind of attachment wherein the attaching party seeks to subject to his claim
either the property of the adverse party, in the hands of a third person called the garnishee, or the
money which third person owes the adverse party.

Sabby Notes.
Q: What is the difference on levy upon execution?
A: This is the process employed after the judgment has become final and executory, whereby the
property of the judgment obligor is set aside and taken into custody of the court before the sale of
the property on execution for the satisfaction of a final judgment.

Q: Miss Pepino filed a case against Ms. Espina then Ms. Pepino filed and was granted with a writ
of attachment but in enforcing the writ, the sheriff however attached my personal properties
believing that it belonged to Ms. Espina. What if any, is my remedy?
A: The remedies available are:
1. Terceria - by making an affidavit of his title to the property or his right to the possession
thereof and serve it on the sheriff
2. Motion to set aside the levy on attachment
3. File a motion for intervention
4. File a separate action to nullify the levy with damages.

Q: Assuming that there is an affidavit filed by the owner of the properties said to be erroneously
attached by the sheriff, is the sheriff is obliged to retain in his possession the property subject
matter of the affidavit or the should the sheriff return these properties to the affiant or claimant?
A: The sheriff is not required to keep the property under attachment unless the attaching party
files an indemnity bond approved by the court.

Q: What is the difference between the attachment bond and the indemnity bond.
A: Attachment bond – is the kind of bond that will be put up in connection to the issuance of
preliminary attachment to answer for any damages that may be suffered by the defendant against
whom the attachment is directed.
Indemnity bond – it is to answer for all the liabilities for the wrongful attachment of the sheriff in
refusing the return the parties to the claimant.

Q: Assuming that you filed a motion in court asking for the discharge of the properties
wrongfully discharged by the sheriff, you are invoking the court’s jurisdiction, the one who
issued the writ. The motion is denied, can you still file an independent action in a different court
with regards to the levy of the property with prayer for damages or will be barred by res
judicata?
A: You can pursue a separate action, the denial of the motion for the discharge of the property
will not bar the filing of the separate case because the motion will be acted upon by the court via
summary hearing and not a full-blown trial, that’s why the ruling on the motion of the discharge
of the property will not bar a separate action, the appropriate action for the nullification of levy
and for the recovery of the wrongfully seized by the sheriff.

Q: Ms. Pepino filed a case against me in connection therewith she applied for a writ of
preliminary attachment, I wanted to question the issuance of the writ of attachment and the same
be dissolved, what would be my remedies?
A:
a. Filing of a motion to discharge the attachment and making a deposit or posting counter-
bond

Sabby Notes.
 b. Filing of a motion to set aside or discharge the attachment on the following grounds sans
the need of filing a counterbond:

Q: In the remedy in posting a counter-bond or deposit, how much would be deposited by the
party?
A: It should be equal as to the amount put up by the applicant in connection with the issuance of
the writ of attachment.

Q: Is there an instance wherein the amount of the counter-bond may be lesser than what was put
up as a bond by the applicant?
A: Yes, there can be partial discharge.

Q: Miss Pepino filed a case against me, she filed for a writ of preliminary attachment pursuant to
me posting a counter-bond in the amount of 10m. The sheriff attached my properties consisting
of parcels of land including my multicab. I’m in dire need of my multicab for my daily use in
going to and from work, I don’t the amount by way to put up the counter-bond for the dissolution
of the my real property, I only have the amount of 200k. Can I just pray that the court release my
multicab and for which I will be putting up a counter-bond corresponding to the amount of the
multicab which is 200k?
A: Yes, by partial discharge.

Q: Another way is by filing of a motion to set aside or discharge the attachment on the following
grounds sans the need of filing a counterbond (even without the posting of a counter-bond) What
are the instances?
A:
a) The attachment was improperly or irregularly issued;
b) The attachment bond is insufficient;
c) The attachment is excessive (here, there may be a partial discharge of attachment
only);
d) The property is exempt from execution and is thus likewise exempt from
preliminary attachment.

Q: Mr. Quintana filed a case against me and the court granted a writ of preliminary attachment
then assume that you are the sheriff in the case, how will you enforce the writ of attachment in so
far as the properties are concerned?
A: Only attach the properties that will be equal to or to the value of which would correspond to
the amount of the attachment.

Q: How will you enforce a writ of attachment when the property intended to be attached is a real
property?
A: by 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, or that such real property and any interest
therein held by or standing in the name of such other person are attached, and by leaving a copy
of such order, description, and notice with the occupant of the property, if any, or with such other
person or his agent if found within the province.

Sabby Notes.
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 the number of the
certificate of title, the volume and page in the registration book where the certificate is
registered, and the registered owner or owners thereof

Q: If the property is not titled or only with tax declaration.

A: Deliver the copy to the custodian or provincial or municipal assessor which are supposed to
be register of deeds.

Q: What if the property is occupied by someone else like an agricultural tenant?

A: Notify the tenant then and wait for the judgment.

Q: How will you attach the property of consisting of cars or motorcycles?

A: I will take possession of the property.

Q: How will you attach the property of consisting of funds deposited in the bank?
A: Debts and credits, including bank deposits, financial interest, royalties, commissions 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 that the debts owing by him to the party against
whom attachment is issued, and the credits and other personal property in his possession, or
under his control, belonging to said party, are attached in pursuance of such writ.

Q: How about with respect to shares of stocks?

A: Stocks or shares, or an interest in stocks or shares, of any corporation or company, by leaving
with the president or managing agent thereof or corporate secretary, 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.

Q: How about when the court learned that I have receivables from Mr. Gravador because he is an
occupant of my apartment and there are monthly rentals due. How will it be attached?
A: Notify Mr. Gravador and he will be paying the sheriff of the monthly rentals.

Q: What if in the contract there is a stipulation that in the event there is a delay in the payment of
rentals, he is to pay penalty in the interest of 5% per month, can he still retain the money in his
possession?
A: He can deposit the money to the court by way of consignation.

Q: Suppose Mr. Gravador is indebted to me, you know for a fact that he owes me money. The
obligation has already matured but Mr. Gravador will maintain his possession of the money
because it is not allowed to give or tender the payment to me nor the sheriff. The sheriff did not
demand that the rental payments be given to him.
A: If it is already due, to avoid penalty, the remedy is resulting to consignation. Deposit the
money to the court by way of consignation, in that way, he will avoid penalties.

Sabby Notes.
Q: The sheriff will get hold of the properties capable of manual delivery, but as a rule he cannot
dispose it unless there is a judgment in favor of the applicant of the writ. Is there an instance
where the sheriff doesn’t have to wait for the judgment and may already dispose of the property?
A: Whenever it shall be made to appear to the court in which the action is pending, upon hearing
with notice to both parties, that the property attached is perishable, or that the interests of all
the parties to the action will be subserved by the sale thereof, the court may order such
property to be sold at public auction in such manner as it may direct, and the proceeds of such
sale to be deposited in court to abide the judgment in the action.

OCTOBER 26, 2023

Writ of Preliminary Attachment (Rule 57)

Definition:

It is a provisional remedy by which the property of an adverse party is taken into legal custody,
either at the commencement of an action or any time thereafter, as security for the satisfaction of
any judgment that may be recovered by the plaintiff or any proper party.

It is therefore safe to say that the primary for the issuance of writ of attachment is
1. To secure the satisfaction of the judgment that may be rendered in favor of the claimant
applicant.
2. To acquire jurisdiction over the action by actual or constructive seizure of the property in
those instances where personal service or substituted service of summons of the
defendant cannot be effected.

Where for example there is a case for collection of sum of money, then the defendant is trying to
dispose his assets if only to render the judgment that may render the case nugatory then in that
context the writ of attachment may be issued by the court if only to ensure that the judgment may
be satisfied out of the properties that may be attached by the sheriff pursuant to the writ of
preliminary attachment because unless the court will issue the writ of attachment then, there is a
good chance that the judgment will be meaningless or that the defendant or the winning party in
that case would be empty handed.

In situations where the Court will be having difficulties in serving the summons on the
defendant, as when for example he is outside of the Philippines or not residing in the Philippines
or not found in the Ph at the time of the commencement of the action then, for the case to
continue, the Court has to acquire the jurisdiction over the res because in actions in REM/Quasi
in REM, it is enough that the Court acquires jurisdiction over the subject matter of the litigation
and that it is not necessary to personally serve summons upon the defendant for the Court to
validly continue hearing the case.

In other words, in actions in REM or actions quasi in rem, the Court’s jurisdiction or acquisition
of jurisdiction over the res may sometimes take the place of personal service of summons. Even
if the defendant is not personally served with summons as he is not found within the Philippines,

Sabby Notes.
then for as long as the Court validly acquires jurisdiction over the res via attachment, then the
Court may already continue hearing the case.

SALIENT CHARACTERISTICS OF A WRIT OF PRELIMINARY ATTACHMENT

 It is but ancillary to the main action
 It is but a provisional remedy
 It is in the nature of a proceeding quasi in rem, although sometimes it is in referred to as
an action in re
 The grant of writ of preliminary attachment is discretionary

Writ of attachment or application for the issuance of writ of attachment therefore is not an
independent action nor a separate action but nothing but an ancillary remedy in a pending case.

Example: collection of sum of money then, there is danger that the decision of the case will be
rendered prejudiced because the defendant is already disposing his properties supposedly to
defraud his creditor. Then in that situation there may be an application for the issuance of writ of
attachment in that main action for collection of sum of money.

It is normally in actions in recovery of property or sum of money.

It is a provisional remedy because it is applied for and the same may be granted in order to
secure the satisfaction of the judgment that may be rendered in favor of the claimant or the
person applying for the issuance for the writ of attachment.

Even in the case where the Court issues a writ of attachment there is no guarantee that the case
will be decided in favor of the applicant. There are situations where even if the Court granted the
issuance of writ of attachment by the plaintiff, in its judgment the Court may still decide to
resolve the case in favor of the defendant.

In other words, the writ of attachment or the issuance thereof is not the end of the case.

The issuance of the writ of attachment shall be deemed in the nature of quasi in rem if in the case
the defendant is personally served with the summons or personally attends the hearing of the
case but then there is an application or issuance of writ of attachment as when the defendant is
poised to dispose of his properties to defraud his creditors. It becomes an action quasi in rem
because in the main action is for recovery of sum of money or personal property but then in as
much as there is attachments however to the properties belonging to the adverse party, then it
becomes an action quasi in rem. But in reality it is an action in personam because it seeks
judgment against the main defendant in the case.

But sometimes an application for the issuance for writ of attachment may be in a nature for an
action in rem. It happens if the defendant is not personally served with summons and that the
defendant does not voluntary appear in the court.

Example: you filed a case against a non-resident defendant and not residing in the Philippines
who is already outside of the Philippines at the time of the commencement of the action so if

Sabby Notes.
only for the case to continue, then they would want to apply for the issuance for writ of
attachment so that once the court grants the same, you may ask for leave of court to serve
summons by publication and then if there is summons by publication the Court may already
continue to hear the case. In that context and that considering that the defendant does not actually
participate during the proceedings then the issuance of the writ of attachment therefore becomes
an action in rem or in the nature of action in rem, because now the action is now about the
property subject matter of the litigation. Ordinarily, an action for the issuance for writ of
preliminary attachment is in the nature of quasi in rem, it only becomes an action in rem if and
when the defendant is not personally served with summons and that the defendant does not
voluntarily appear before the Court.

The writ of preliminary attachment is discretionary upon the court, such that even if for example
the applicant is willing to put up a bond in connection with the issuance of writ of preliminary
attachment there is no guarantee that the court will approve it. When there is compelling ground
for the issuance of writ of preliminary attachment and there is willingness of the applicant to put
of the bond then the non-issuance of writ of preliminary attachment therefore is correctible by
Certiorari because in context, it could be considered that the judge acted with grave abuse of
discretion amounting to lack or excess of jurisdiction.

Who may apply for writ of preliminary attachment?

 Plaintiff
 Any proper party (defendant, with respect to counterclaim, cross-claim or third party
complaint)

Example: Atty. Torregosa and I obtained a loan from Mr. Gravador in the amount of 10m., after
the loan was received, Torregosa got all the money and I got nothing and the obligation was not
paid on the due date such that Mr. Gravador is filing a case against me and Torregosa for the
collection of the unpaid load. In my answer considering that I haven’t received a single cent out
of the proceeds of the loan then I may interpose a cross-claim against Torregosa so that in the
event that the judgment will be rendered against us, the obligation is for us to pay it solidarily, I
may ask for reimbursement from Torregosa.

Let us suppose that during the pendency of the case and after I filed my cross claim against
Torregosa, he however is trying to dispose of his property with the end and view that he may not
be unltimately liable to pay for the obligation to Mr. Gravador or not liable to pay by way of
reimbursement to me. In that situation, even if I’m the defendant in the main action, I can apply
for the issuance of writ of attachment in so far as my cross-claim is concered because Torregosa
is trying to dispose of his assets or properties if only to avoid being held liable for the payment of
the money.

In a third-party complaint for example, if that the case filed by Gravador is filed only against me
and Torregosa is not impleaded then, I will be filing a third-party complaint against Mr.
Torregosa and then if during the pendency of the case he tries to dispose of his properties to
defraud Gravador and I then I may apply for the issuance for writ of preliminary attachment in
connection with the third-party complaint against Mr. Torregosa. But even if the action merely
filed against me by Gravador but I have a counter-claim against him for the reason that the

Sabby Notes.
obligation had already been duly paid or when the nature of the counter-claim is in the nature of
permissive counter-claim then I may in that context apply for the issuance of writ of attachment
where Gravador is trying to dispose of his properties in order to avoid the liability for the
permissive counterclaim or even compulsory counterclaim.

Under the rules the application for the writ of preliminary attachment may be had by the plaintiff
or the defendant in the case.

At what stage that there be a writ of preliminary attachment?

 At the commencement of the action
o It may be incorporated in a verified complaint (also supported by affidavits)
o Here, there may be exp parte issuance of a writ of preliminary attachment
 At any time before entry of judgment
o It may be issued while the case is on appeal. It may be issued by the Court of
Appeals or the SC.
o Prior notice is required.

When the application for the issuance for writ of preliminary attachment is embodied in the
complaint then there is a good chance that the court may issue the writ of preliminary attachment
even without conducting a prior notice or hearing.

It requires the contemporaneous service of the complaint, summons, application for the issuance
writ of preliminary attachment, the order of attachment, affidavit and the bond file in Court in
support of the application for the issuance of writ of preliminary attachment.

But where the application for the issuance of writ of preliminary attachment is done after service
of summons and considering that the court already acquired jurisdiction over the person then any
application for the writ of preliminary attachment requires a prior notice and hearing.

Under the Rules, the application for writ of preliminary attachment, may be had even after
judgment for as long as the judgment has not yet attained finality. If an appeal is filed or before
filed then there may be an application for the issuance of writ of preliminary attachment. Even
when an appeal is filed in the CA or SC, but there are enough grounds for the application of writ
of preliminary attachment then the writ of preliminary attachment may be issued by the appellate
court.

The issuance of writ of preliminary attachment may be done for as long as there is not final or
executory decision in the case.

Different Kinds of Attachment

 Preliminary Attachment
 Garnishment
 Levy upon execution

The writ of preliminary attachment involves the seizure of the property of the adverse party
where such properties are in his possession.

Sabby Notes.
Example: gravador is filing a case against me for amount of money and there is ground for the
issuance of writ of preliminary attachment because I am on the verge of disposing of my
property if only to defeat the judgment of the court then if the court will issue the writ of
preliminary attachment in favor of Gravador, the sherrif may attach the properties in my
possession.

The court sheriff may attach my service vehicle or personal belongings as are not exempt from
execution.

Garnishment – a kind of attachment, the difference is in attachment the properties that are
attached are in the possession of the property against whom the writ is issued but in garnishment,
the property that may be seized by the court is not actually in the possession of the property
against the writ is issued because the property is in possession of the third person. The third
person may be a bank having in its account the money deposited by the defendant or if what is to
be seized by the sheriff is the shareholdings of the stockholder or if the property to be seized
consist of collectibles or payables owing to the defendant where the money is still in the
possession of the debtor.

Example: A case is filed by Gravador against Torregosa then the plaintiff Mr. Torregosa applied
for and was issued by a writ by the court and then the enforcement of the attachment, the sheriff
is made aware that I owe money in favor of Gravador. If the sheriff will serve the attachment so
as to attach the properties in my possession, then that is in the nature of the garnishment.

Based on jurisprudence where the sheriff would attach the properties in the possession of the
third person by bay of garnishment there is actually no need to implead the third party in the
action. There is no requirement that summons be served on the third person having in his
possession the property belonging to the defendant against which the writ is issued. There is even
no need to amend the pleading to implead the third party as a co-defendant in the action. It is
enough that the person who has custody of the property or money belonging to the person against
the writ is issued that he be served of the copy of the attachment as well as the pertinent
documents in connection therein.

Ordinarily where the sheriff effects garnishment the sheriff will not take away the property in the
possession of the third person, it’s just that the property will be impounded by the sheriff or
directed by the sheriff to keep in his custody.

Example: if what is to be garnished by the sheriff is the deposits of the defendant in the bank, the
sheriff is not authorized to withdraw the money. The sheriff will inform the bank about the
garnishment so that the bank will not allow the defendant to withdraw the amount.

Levy upon execution – kind of attachment that is effected in furtherance for of the
implementation of a final or executory decision. It is different from a writ of preliminary
attachment which is to be issued upon finality of judgment because levy upon execution requires
that the decision pursuant to which the attachment is effected has already attained finality so that
the decision has already final and executory.

Sabby Notes.
Ground for the issuance of a writ of preliminary attachment (see slides)

(1st ground) it is important that the action must be for a specified amount of money. It is for that
reason that the writ of preliminary attachment is not for moral or exemplary because the award
cannot be quantified by the plaintiff and it is on the discretion of the court.
There may not be a valid issuance of writ of preliminary attachment where the action is purely
for the award of moral and exemplary damages.

In action for specified amount of money the writ of preliminary attachment may only be validly
applied for if and when the defendant is about to leave the Ph and more than that, the defendant
has the intention of defrauding his creditors.

Example: case filed against Torregosa who is about to depart the Ph because he wants to have a
vacation in Japan. Will it validly apply a writ of preliminary attachment? – no, because the
purpose of Torregosa is not to defraud his creditors but for purpose of vacation.

Example: filing a case of unpaid loan against a person who is about to depart the Ph because he
secured a job overseas. Will that justify the issuance of writ of preliminary attachment? – no.

Example: filed a case of collection of unpaid loan against a foreigner friend who obtained an
unpaid loan when he was on a vacation in the PH but at the time of the filing of the case, he is
about to leave the Ph because of the expiration of his VISA. Will it validly apply a writ of
preliminary attachment? – no, his intention of going back is not for purposes of defrauding his
creditors.

Is there no way that I may validly apply the issuance of writ of preliminary attachment in the
case I filed against the foreigner? – Yes, while it is true that I can’t justify the issuance of the writ
of preliminary attachment under the first ground but I can justify it under the last ground (action
is against someone who does not reside or not found in the PH) If I filed a case against a
foreigner, and he has about to go back to his country of origin while I cannot validly justify my
application of the issuance of writ of preliminary attachment under the first ground but I can
justify it under the last ground.

(2nd ground) – here the ground for the issuance of writ of preliminary attachment is the breach of
trust committed by the person who is entrusted with money or property.

Example: cashier in a LGU, embezzled the funds in his possession, there may be an issuance of
writ of preliminary attachment. Under this ground it is not a requirement that the party against
whom the writ of preliminary attachment is applied is actually trying to dispose of his properties
nor trying to remove or dispose of his property, what is important is there is a breach of trust
reposed on that person.

(3rd ground) – the action is for the recovery of the possession of the property that is unjustly or
fraudulently taken and it is a requirement sine qua non that there is an attempt on the part of the
person against whom the writ is applied to conceal or remove or dispose of the property that he
unjustly or fraudulently taken.

Sabby Notes.
Example: Somebody bought my mountain bike using a fake money. But I already parted with my
property. I filed a case for the recovery of my bike but then in the pendency of the action or even
before the filing of the case Gravador had already concealed or dispose of the bike so that I can
no longer find the same. In that justification, I am justified to attach a writ of preliminary
attachment. With a writ of preliminary attachment issued, what can be attached by the sheriff is
not necessarily the property I want to recover but it can also the money or property belonging to
Gravador.

The property that may be attached pursuant to the writ of preliminary attachment under this
ground is not necessarily the same property that is sought to be recovered. For this ground to
apply, it is imperative that the action is for the recovery of the possession that is unjustly or
fraudulently taken and there is an attempt to conceal or remove or dispose of the property that
was fraudulently taken.

What if the property that is taken is still in his possession? –No, under the third ground for the
writ of preliminary attachment to be validly issued it is important the property has been
concealed already or disposed by the adverse party. In the case, you cannot validly apply the
issuance of the writ of preliminary attachment under the third ground because here it is a
requirement that the property must be concealed, disposed of or removed by the adverse party.
The remedy is not to apply for the writ of preliminary attachment but writ of replevin, recovery
of property that is unjustly taken and still in his possession.

(4th ground) – what is contemplated here is there is dolo causante and dolo incidente, there is
fraud in contracting the obligation or there is fraud in the performance of the obligation. When
there is dolo causante, then there may be issuance of writ of preliminary attachment.

Example: Gravador lured me into buying his commodity which he represented to be gold bars
and turned out that it was fake. In an action for recovery of the amount, I may validly apply for
the issuance of writ of preliminary attachment that is illustrative of dolo causante.

Under the current rules, there may be issuance of writ of preliminary attachment even if what is
perpetrated is actually dolo causante or dolo incidente or it is enough that there is fraud in the
performance of the obligation. Example is when Gravador is indebted to me and he paid his
obligation with bounced checks, I may apply for the issuance of writ of preliminary attachment.
There is no more distinction between dolo causante and dolo incidente because both kinds of
fraud may already become a ground for the issuance of writ of preliminary attachment

(5th ground) – If I filed a collection case of unpaid loan against Gravador, he is already on the
verge of disposing of his properties and assets so that I can’t recover from him then I may validly
apply for writ of preliminary attachment.

What if he is disposing his properties to defray the cost of his medication? – it will not justify the
issuance of writ of preliminary attachment because it is important that the disposal of the
properties of the defendant must be coupled with the intention to defrauding his creditors. Mere
insolvency of the defendant is not a ground for the issuance of writ of preliminary attachment.

Sabby Notes.
(6th ground) – a foreigner friend visits you in the Ph, he ran out money and borrowed from you,
and he can’t pay it. When you filed a case against him he was already outside of the Ph because
his VISA has already expired. By leave of court serve summons upon him so that the case will
go on then you need to apply for writ of preliminary attachment so that his properties in Ph will
be attached by the court so that attachment is done, you may already so that by leave of court you
may validly serve summons via publication. When there is summons by publication, that may
suffice for as long as there is attachment of the properties belonging to the non-resident
defendant who is not in the Ph at the time of the filing of the case, and even if the copy of the
summons does not reach his end, the court may validly hear and decide the case.

Considering that there is difficulty in serving the summons on the defendant because he is not
residing in the Ph, then it is important that there is an attachment of his property because without
his property being attached, you can’t have summons by publication and without it then the court
can’t proceed to hear and decide the case.

By attaching the property of the defendant, the case has been converted from being purely a
personal action to an action quasi in rem.

When the court allows service via publication, there are 2 situations wherein even if the
defendant is a resident of the Ph, there may still be service of summons be served via publication
when the defendant is juridical person. Even if the defendant is an action is a resident but his
identity is not known or whereabouts, then there may be service of summons via publication.
Then there may be issuance of preliminary attachment against the defendant.

Example: I got hit by a speeding vehicle, during the pandemic and the LTO office was closed.
Under the rules, I can still under sec. 16 of rule 14, file a case against the unknown defendant.
Considering the identity of the defendant is not known you can’t serve summons on him, I will
ask for leave of court, summons will be served via publication. I can apply for the issuance of
writ of preliminary attachment directed on the property of the defendant.

When the defendant is a resident of the Ph but is temporarily outside of the Ph at the time of the
commencement of the action or the service of summons. Summons via publication may be
applied.

PCIB vs. Alejandro – court ordained that in actions in personam who is temporarily out of the Ph
not justifies the issuance of writ of preliminary attachment to attach the property of the defendant
because even if the defendant is temporarily out but considering that he is a resident, service may
be had via substituted service of summons.

If the only purpose for the issuance of writ of preliminary attachment is residing in the Ph but
outside the Ph at the moment to acquire jurisdiction over the defendant then it is not enough
reason for the issuance of writ of preliminary attachment.

Requisites for the issuance of an order of preliminary attachment

 Filing of Affidavit
 Posting of Bond

Sabby Notes.
The affidavit need not be executed by the applicant himself, the application required for the
issuance of writ of preliminary attachment may be executed by one who has actual or personal
knowledge about the circumstances on the ground for the issuance of writ of preliminary
attachment as enumerated under sec. 1 of rule 57.

Example: I filed a collection case against Gravador but the one who has personal knowledge that
Gravador was on the verge of disposing of his properties to defraud his creditors was Torregosa
so that being the case, the affidavit to be filed in support for the writ of preliminary attachment
should be executed by Torregosa because he has personal knowledge that will justify the ground
of the issuance of writ of preliminary attachment.

Situation: Gravador obtained a loan from me in the amount of 10m, to guarantee the loan. He
mortgaged in my favor his parcel of land situated in Dumuguete. I have 2 options in filing my
complaint, one is filing a simple collection of unpaid loan thereby abandoning the mortgage that
was constituted in my favor or file a petition for foreclosure of REM. Supposed that even
Gravador already mortgaged his property in my favor, I opted to file a collection for unpaid loan.
May I validly apply for the issuance of writ of preliminary attachment when Gravador has
offered his property by way of REM as guarantee for the performance of obligation. – I can’t
validly apply for the issuance of writ of preliminary attachment because in the first place the
obligation of Gravador has sufficient security, there is no justification for the issuance of writ of
preliminary attachment.

When an obligation is secured by REM, there is no reason why there is an issuance of writ of
preliminary attachment.

Is there no exception to the rule that when an obligation is secured by an REM, there is no
issuance of writ of preliminary attachment? – yes.

Mr. Gravador obtained a loan from me in an amount of 10m secured by a REM constituted as
real property in Dumeguete, but the value of the property is only 1m and he is already trying to
dispose of his properties to defraud his creditors. Can I apply for writ of preliminary attachment?
– yes, when the security for the loan is not sufficient to cover his obligation.

Even if there is a mortgage constituted in my favor by Gravador, considering the value of the
property is insufficient to answer for the obligation of Gravador and given that he is on the verge
of disposing of his properties to defraud his creditors then I can apply for the issuance of writ of
preliminary attachment.

The attachment bond is constituted to answer for whatever claims for damages that may be put
worth by the adverse party. If be found out that there is no valid ground for the issuance of writ
of preliminary attachment or the issuance thereof is deemed improper or irregular then the
adverse party against whom the writ is issued may therefore claim damages and can be satisfied
out of the attachment bond out up by the applicant for the issuance of writ of preliminary
attachment.

Sabby Notes.
The amount of the bond is fixed by the Court which is equal to the amount demanded for the
issuance of writ of preliminary attachment.

When what is to be attached is a real property then the court will fixed the amount of the bond
corresponding to the value of the property sought to be attached but that the end of the day, it’s
the Court will fixed the amount of the bond.

Ordinarily, the bond will take place in a form of a surety bond but there is nothing in the rules
that prohibit the cash bond.

Is there no instance where the applicant is issued with writ of preliminary attachment and he
doesn’t put up an attachment bond? – Yes only in indemnity bond, (Rule 57) the Republic of the
Philippines may be exempted from putting up the indemnity bond but it is different from an
attachment bond. Indemnity bond is to be put up when the property attached by the property is
being claimed by a third party. Ordinarily when there is a third person claiming ownership over
the property taken by the sheriff pursuant to the writ of preliminary attachment, the sheriff is not
duty bound to keep in his custody the properties claimed unless the applicant or the person who
filed for the writ of attachment will put up an indemnity bond to indemnify the sheriff against the
claim of the 3rd person.

If the Republic filed a case for embezzled funds by a public officer, the Republic applied for the
issuance of writ of preliminary attachment. Is there republic required to put up an attachment
bond? - (In the case of Republic of the Philippines vs. Maj. Carlos Garcia) the Republic should
not be required to put up the attachment bond on the theory that it is always solvent. There’s no
need.

While Rule 57 does not expressly provide that the State is not required to put up an attachment
bond but pursuant to the Garcia case, the Court therefore should exempt the Republic from
putting up an attachment bond in connection with its application for the issuance of writ of
attachment.

It’s not only the posting of an indemnity bond for which the Republic may be exempted. The
Republic shall also be exempted from posting an attachment bond.

Implementation of the writ of preliminary attachment: GR

The writ of preliminary attachment may be issued by the Court specially where the application is
embodied or integrated in the complaint.

Even when the writ of preliminary attachment is issued ex parte by the court, but before any such
writ can be validly implement, it is a requirement that the same of the writ of preliminary
attachment must be preceded or done contemporaneously with the service of summons together
with the copy of the complaint, the application for writ of preliminary attachment, the applicant’s
affidavit and bond.

Sabby Notes.
Even if the Court issued the writ of preliminary attachment ex parte, but before the writ can be
implemented, it is important that there may be a prior service of summons together with a copy
of the complaint, and application for the writ of preliminary attachment, applicant’s affidavit and
bond. (G.R.)

There are permissible situations where the writ of preliminary attachment that is issued ex parte
of the court may be implement without any such prior or contemporaneous service of summons.

Implementation of the Writ of Preliminary Attachment (Exceptions) See slides

How the sheriff issue the writ of preliminary attachment where what is to be attached by the
sheriff is a real property? – The sheriff has to go to the office of the Register of Deeds and serve
upon them the copy of the order granting the x writ of preliminary attachment together with the
description of the property attached and the notice that the property is subject to attachment.
When the property is occupied by another person then, the occupant should be likewise be served
with a copy of order of writ of preliminary attachment and a notice that the property that he is
occupying is actually subject of the attachment.

What is important to remember is when there is a property to be attached by the sheriff consist of
a real property, the sheriff will not take possession of the property, at most, the sheriff will just
annotate the attachment by going to the Register of Deeds and serve a copy to the Register of
Deeds so that the order of writ of preliminary attachment will be annotated at the back of the
certificate of title covering the real property subject matter of the attachment.

Where the property is occupied by an agricultural tenant, the sheriff will not evict the tenant from
the property. Mere annotation in the title of the notice of levy for the attachment will suffice.

When the property is not covered by the certificate of title, the annotation shall be done in the
office of the municipal or city assessor.

If it consists of a personal property capable of manual delivery, the sheriff will take hold of it.

When the property subject of the attachment is stocks, shares, the sheriff will not sequester or
cease the certificate of stocks, he will serve the attachment order upon the president or the
managing agent of the corporation concerned informing that the shareholdings of the defendant
is being attached pursuant to the order of the court.

When what is to be attached by the sheriff consist of collectibles, debts, credits or bank deposits,
generally the sheriff will serve the order of attachment upon the person holding such money or
property or the sheriff will serve the notice of garnishment to the bank. The bank will have to be
notified that the deposit of the person is being attached by way of garnishment pursuant to the
order of the court so that the bank will no longer allow the depositor to withdraw the funds
deposited in the bank.

Sabby Notes.
What if the claim of the plaintiff or subject matter of the plaintiff is 5m but the funds of the
defendant is 10m. The defendant is allowed to withdraw the amount in excess of the subject
matter of the attachment.

When what is to be attached is in the form of collectible, the payables, then the sheriff will
inform the person concerned about the attachment so that the person will no longer tender the
payment to the defendant.

I filed a collection case against Gravador and the court issued in my favor a writ of preliminary
attachment and turned out that Torregosa owed money to Gravador, the sheriff may want to
garnish the funds in the possession of Torregosa so that he will no longer deliver the funds to
Gravador.

As a rule, the sheriff will not take hold of the property or the money in the possession of
Torregosa specially when the credit has not yet matured. But if you were in the shoes of
Torregosa and consider the sheriff does not actually collect the money, and if the obligation has
already gone due, if only to avoid the interest, is to consign the amount in the court.

Example: Renting a unit from Mr. Gravador against whom the writ of preliminary attachment is
issued, to avoid paying penalty for the rents. If you are the lessee, deposit the rentals with the
Clerk of Court so that you may not be declared in default and not be evicted from the premises.

The subject matter of the attachment consist of the share of the person in the inheritance. For the
sheriff to serve the garnishment, he will serve the order of writ of preliminary attachment upon
the executor or administrator of the estate of the decedent, the sheriff must also inform the Clerk
of Court in which the estate is being settled regarding the attachment of the share of the person in
the inheritance.

Example: I filed a case against Juan, then court issued in my favor a writ of preliminary
attachment, Juan is a compulsory heir of his father who died and there are estate that were left
by his father. In serving the writ of preliminary attachment, what the sheriff will do is to serve
the writ of preliminary attachment upon the executor or administrator of the estate and the sheriff
must also serve the order and notify the COC hearing the proceedings on the settlement of the
estate.

Even when there is a writ of preliminary attachment involving the share of Juan in the
inheritance, that writ of preliminary attachment will not prevent the executor or administrator of
the estate to perform his duty to distribute the inheritance because under Sec. of Rule 57, (See
slide on Effect of Attaching Interest in Property belonging to the estate of the decedent.) He may
proceed with dividing and distributing the properties, only that the share pertaining to the person
against the writ is issued, shall be delivered instead to the sheriff who is serving the attachment.
What is to be delivered is only properties capable of manual delivery. When the share of Juan is
consist of share of the real property, the real property will not be delivered to the sheriff, what the
administrator will do is annotate in the back of the title that the share of Juan in the inheritance,
is subject matter of the attachment issued in my favor.

Sabby Notes.
(See slide in Manner of Attaching Property in Custodia Legis)

If the property is in custodia legis in another court, the property may still be attached by the
sheriff,

Example: I filed a case against Gravador for collection of unpaid loan, and the Court issued a
writ of preliminary attachment in my favor, suppose that Gravador is a respondent for judicial
foreclosure sale filed by Torregosa because he also obtained a loan from Torregosa secured by a
REM. The obligation of Gravador to Torregosa as secured by REM is 5m but that value of the
mortgaged property is 10m. Even if the property of Gravador is already subject matter of the
foreclosure proceedings instituted by Torregosa, the writ of preliminary attachment, should in
connection in my case can be served by the sheriff as by attaching that property subject matter of
the foreclosure proceeding instituted by Torregosa. It is allowed because the value of the
mortgaged property is above the amount of the obligation as such owing to Torrgosa.

Even if attachment of property in custodia legis is allowed by the law, the sheriff however
serving the writ of preliminary attachment is not allowed to take the property from the court
hearing the petition for judicial foreclosure. The sheriff may only annotate the writ of attachment
in my favor at the back of the title of the property subject matter of the proceedings.

Same thing applies if the subject matter property litigation consist of personal property. It’s
enough that the writ of preliminary attachment is served involving the particular property
although that property is being litigated in another case. While ordinarily the sheriff will take
custody of things capable of manual delivery, as the sheriff will serve the writ of preliminary
attachment and when the sheriff is not suppose of to dispose the property due to the pendency of
the action, there are exceptional circumstances wherein the attached property may be sold even
before entry of judgment. (SEE SLIDE)

When the attached property may be sold even before entry of judgment, it may happen when the
subject property in the custody of the sheriff is a perishable property.

Example: the attached property consist of inventories or commodities for sale (like meat
products). Considering the nature of these properties which are perishable then the sheriff is
allowed to dispose the properties even if there is no judgment on the case yet.

Even where the sheriff already dispose of these properties and when there is already proceeds of
the sale the sheriff will not yet deliver the proceeds of the share to the applicant or the party
whose favor the writ of preliminary attachment is issued. The sheriff will only take custody of
the sale.

(See slide: The Remedies of a Third Person whose property is wrongfully attached by the
Sheriff)

Example: I filed a case against Gravador in connection with which the court issued a writ of
preliminary attachment in my favor, suppose that in serving the writ of attachment the sheriff
however, attached the properties in the possession of Torregosa on the premise that the property

Sabby Notes.
belongs to Gravador. Gravador is the defendant and Torregosa is not a party to the case.
Torregosa is a third party in so fact as the case is concerned. The remedies that may be pursued
by Torregosa (1) filing a third party claim.

Third party claim is different from third party complaint, the latter is filed in Court is the
complaint itself. Third party claim, what needs to be executed is not a complaint but an affidavit
setting forth the groundings claiming to be the owner of the property.

When there is this affidavit executed by Torregosa, and upon serving a copy of the affidavit to
the sheriff. Under the rules, the sheriff is not anymore duty bound to keep in his custody the
property being claimed by Torregosa. The Sheriff will not retain the properties in his possession
unless the applicant will put an indemnity bond so as to indemnify the sheriff for whatever
claims that may be claimed by Torregosa.

If Torregosa will execute an affidavit or a third party claim over the property, the sheriff is not
duty bound to retain in his possession as to the properties being claimed by Torregosa. But if I
put up an indemnity bond on favor of the sheriff as to indemnify the sheriff against the claim of
Torregosa then the sheriff will retain in his possession the properties even if there is a claim of
Torregosa.

Attachment bond – a bond to be put up in connection with the issuance of writ of preliminary
attachment and it is meant to answer for whatever damages to the adverse party.

Indemnity bond – to be put up by the applicant so that the sheriff will retain in bis custody the
properties being claimed by the third person.

Unless there is an indemnity bond, the sheriff will not retain in his possession the properties
being claimed by a third person.

Under the rules, where the applicant in whose favor the writ of preliminary attachment is issued,
is the Republic of the Philippines, then it shall be exempt from posting of the indemnity bond. So
even if there is a third party claim, when the adverse party is the republic, it does not need to put
up an indemnity bond and the sheriff is not duty bound to return the property. The sheriff will
retain in his custody the properties being claimed by the third party.

(2) Motion to set aside the levy on attachment

(3) Filing a motion for intervention – allowed as long as there is no judgment on the case yet.
(4) file a separate action in another Court

Example: Torregosa didn’t opt to file a third party claim, he invoked the jurisdiction of the court
which issued the writ of preliminary attachment asking for the return of his properties. Giving
this motion, the Court will conduct a summary hearing to determine the propriety of the property
in the possession of Torregosa. In resolving the motion filed by Torregosa, it will not dig deeper
on the issue of ownership, what the Court will determine will not heed to the Motion to set aside
the levy on the attachment filed by Torregosa if the determination is only to whether the sheriff
did the right thing in attaching the property in the possession of Torregosa. Such that even if the

Sabby Notes.
Motion of Torregosa granted by the Court, Torregosa is not precluded from filing a separate with
another court with the levy of his property wrongfully attached by the sheriff with prayer of
garnishment.

Even if Torregosa already filed a motion with a Court which is a writ to set aside the levy of
attachment and denied by that Court, the person is not precluded from filing a separate action
with another court asking for the nullification of the levy of his properties because the resolution
of his motion to set aside the levy of judgment by the Court which issued the writ of attachment
will not constitute as a res judicata.

What are the remedies that may be pursued by the adverse party against whom the writ of
preliminary attachment is issued and whose properties are ceased by the sheriff? – (See How to
Discharge the attachment/Remedies of the adverse party)

Is there an instance where the amount of the counterbond to be put up is less than the amount of
the attachment bond? – if you’re only asking for the parties return of the property or you only
wanted a certain portion of the property be returned.

The writ of preliminary attachment may be dissolved without the party having to make a deposit
or having to put up a counterbond as when the dissolution is that the attachment is improperly or
irregularly issued as when there is no ground for the issuance of writ of preliminary attachment
or where the attachment bond is insufficient or when the attachment is excessive (what can be
dissolved is the excess of the attachment) or when the property is exempt from execution.

See slide: Effect of the discharge of the attachment

The property will be delivered to the adverse party or the proceeds will be turned over to the
adverse party.

When there is writ of preliminary attachment issued then after the trial, the court rendered a
decision in favor of the party in whose favor the writ of preliminary attachment is issued, there is
still a chance for the party against whom the writ of preliminary attachment is issued may still
claim for damages.

Example: I filed a case against Gravador, then the Court acted favorably on my application for
writ of preliminary attachment and the properties of Gravador has been attached and after trial,
the Court rendered a decision in my favor, and at the end of trial the court resolved the case in
my favor and adverse to Gravador. Gravador may claim for damages out of the attachment bond
if and when it is established that the issuance of the writ of preliminary attachment is improper or
irregular or excessive. (See slide: Damages by reason of wrongful attachment)

When the attachment bond is insufficient to answer for damages in favor of Gravador, there may
even be a writ of execution as to my properties which are not exempt execution will be attached
to answer for the claim of Gravador.

Sabby Notes.
The entitlement of Gravador from the attachment bond need not be established in a separate
action. He may establish it from the improper, excessive or irregular issuance of writ of
preliminary attachment in that very same case. (During the trial, before the perfection of the
appeal or during the appeal)

What if the case is decided in favor of the applicant for the issuance of writ of preliminary
attachment and then the decision has already attained finality. How will the sheriff implement the
writ of execution when previously the sheriff has already attached or garnished the properties of
the losing defendant pursuant to the writ of preliminary attachment, (See slide: Manner of
satisfying the judgment out of the property attached)

NOVEMBER 3, 2023

RULE 58 Preliminary Injunction

Definition (Sec. 1 Rule 58)

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.

Writ of Preliminary prohibitory injunction

Writ of Preliminary mandatory injunction

A writ of preliminary injunction shall be issued before rendition of judgment. It may be in a form
of a directive against the performance of an act or it may command the doing or performance of
an act.

As for the salient characteristics of an writ of preliminary injunction

 It is nothing but ancillary or an adjunct to the main action
 An order denying or granting an application for writ of preliminary injunction is not a
final resolution or decision disposing of the case.
 It is in the nature of a preservative remedy which is aimed at the maintaining the status
quo or the prevailing state of affairs of the parties prior to the controversy until the rights
of the parties are adjudicated
 The issuance of the writ of preliminary injunction is addressed to the sound judicial
discretion of the court.

The main action may take in the form of action for injunction itself, or prohibition, certiorari or
petition for relief of judgment or annulment of judgment or case for ejectment or action
publiciana, or action for specific performance among others. A writ of preliminary injunction is
not in itself an independent action, it is not a cause action, there has to be a main action then
there may an application in that main action for the issuance of the writ of preliminary
injunction.

Sabby Notes.
Example: I am granted a perpetual right of way allowing me to pass through the property
belonging to Gravador, the right of way is granted in a perpetual manner and the right of way is
duly recorded and annotated at the back of the TCT covering the property of Gravador, I am
given access to and from the nearest highway traversing through property of Gravador. One
reason or another, Gravador is trying to prevent me from passing through his property anymore
such that if only to prevent gravador from preventing me from using the right of way then I may
file an action in court for injunction. My main action is injunction but even when my main action
is injunction I may in that action apply for the issuance of writ of preliminary injunction. In that
action for injunction, I may also ask for the issuance of temporary restraining order and
thereafter, I may apply for the issuance of writ of preliminary injunction during the pendency of
the case for injunction.

This application for writ of preliminary injunction may also be had for case of certiorari.
Example: I am a losing respondent in a losing case. Gravador filed a case for illegal dismissal
under the Labor Arbiter, then the case is decided in his favor, I filed an appeal before the NLRC
but it affirmed the ruling of the LA. When the case is already decided by the NLRC, then my
recourse is to file Petition for Certiorari with the CA governed by rule 65. Even if my action is
certiorari to question the decision of the NLRC, I may apply in that action for the issuance of
writ of preliminary injunction or even a TRO so that the NLRC will not enforce the writ of
execution that may have been issued in favor of the complainant.

This petition for writ of preliminary injunction may also be had in an action for prohibition.
Example: Gravador filed a case for ejectment in the RTC, I filed a motion to dismiss on the
ground of lack of jurisdiction and the court denied the motion to dismiss. If only to prevent the
RTC from taking cognizance of the case then I may want to question the denial of the RTC of my
motion to dismiss via certiorari or prohibition. If only to prevent the RTC with proceeding with
the case and to declaring him in default, then in that petition before the CA for certiorari or
prohibition, I may want to apply for TRO or a writ of preliminary injunction so that the RTC will
not proceed to hear the case and not declare me in default.

The application for writ of preliminary injunction may be had as long as there is a main action.

There can also application for writ of preliminary injunction in a case for petition for relief of
judgment or annulment of judgment.
Example: A case is filed against me by Gravador, the decision attained finality, I was denied a
day in court and was not properly served with summons. I filed a petition for annulment of
judgment of the RTC on the ground of lack of jurisdiction. If there is already a writ of execution
issued by the RTC against me, then in my petition for annulment of judgment I should therefore
apply for the issuance of a TRO or a writ of preliminary injunction so that the writ of execution
by the RTC will not be enforced by the sheriff.

If what I filed in Court is petition for relief of judgment, it may also be assailed when the
decision has already attained finality, provided that you filed it within 60 days from the
knowledge of the decision but in no case shall be 6 months from the time that the entry of
judgment. When there is already a writ of execution, before I file a petition for relief, I should

Sabby Notes.
apply for the issuance of a TRO or writ of preliminary injunction so that the writ of execution
may not be enforced by the sheriff.

Under rule 70, when what is filed in court is ejectment or forcible entry, or unlawful detainer, the
plaintiff may validly apply for the issuance of writ of preliminary injunction so that the plaintiff
may be placed with the possession of the property.

It can also be had for specific performance.

A writ of preliminary injunction is a provisional remedy. Such that, it is not determinative of the
outcome of the case. If in a case, even if the Court granted the writ of preliminary injunction in
favor of the plaintiff applicant, it doesn’t mean the case will be decided in favor of the plaintiff.

The writ of preliminary injunction is for preserving the status quo ante of the case. Status quo
ante refers to the actual peaceful and uncontested circumstance attendance obtaining to the case
as the party disputants in the case. I have been granted with perpetual right of way to pass
through the property of Gravador, if you talk about the status quo ante, the actual, peaceful and
uncontested situation between me and Gravador then you may take note that I have been
perpetually granted free access to the right of way. Such that if Gravador will perform an act to
obstruct my passage, then the act may be enjoined by the Court. When the court will issue a writ
of preliminary injunction prohibiting Gravador from putting up a blockade, the purpose of the
court is to preserve the status quo ante.

Status quo ante is different from a writ of preliminary injunction. The writ of preliminary
injunction prohibits the doing of an act or mandates the doing of an act but status quo ante order
merely directs the party to observe the status quo. Sometimes the court will issue a status quo
ante in order to appear that the court is not prejudging the merits of the case. The applicant or the
parties are not required to put up an injunctive bond. Unlike when what is issued is a writ of
preliminary injunction which requires the posting of a bond.

Even when in an action there is an application for a TRO or application for the issuance of writ
of preliminary injunction, the Court is not compelled to issue a writ of preliminary injunction
prayed for in the complaint. The Court will evaluate the factual circumstances to determine if
there is a valid ground for the issuance of writ of preliminary injunction.

When the tenor of the writ is for the person to refrain from a particular or to the person to whom
the writ is addressed from performing an act the writ is in the nature of WRIT OF
PRELIMINARY PROHIBITORY INJUNCTION.

When the tenor of the writ is for the performance of an act by the person against whom the writ
issued, the writ is in the nature of a WRIT OF PRELIMINARY MANDATORY INJUNCTION.

Two kinds of preliminary injunction (See slide)

Sabby Notes.
Example: I have been granted a perpetual passage in the right of way, then Gravador suddenly
stopped him from passing through his property. I filed a case for injunction. If it happens that
Gravador is going to construct a fence, then before Gravador could construct a fence then I may
apply for the issuance of writ of preliminary prohibitory injunction so he will be prohibited from
constructing a fence in the road or putting up a blockade.

If Gravador had already put up the fence, then the writ of preliminary injunction should be writ
of preliminary mandatory injunction so that if the writ is granted, the court will direct Gravador
to remove the fence.

What is the difference between injunction as an action and writ of preliminary injunction?
(See distinction in the slide)

Example: My main action is injunction but meanwhile while the court is hearing the case, I may
apply for the issuance of the TRO so that in the meantime, I can still be allowed to use the right
of way. Main action for injunction seeks for the issuance of a permanent injunction which should
be embodied in the judgment perpetually prohibiting the performance of an act whereas writ of
preliminary injunction seeks to prohibit the performance of an act during the pendency of the
case.

Action for injunction can only be granted after the Court had already conducted a hearing after
the parties offered their evidences.
A writ of preliminary injunction can be had even what is presented is a sample evidence. (can be
absorbed in the main case without prejudice to presentation of additional evidence.)

The Court has to conduct a hearing before issuing a writ of preliminary injunction.

Action for injunction (cause of action itself) is embodied in the judgment, if you are the losing
party, the remedy is interpose an appeal.

When it is writ of preliminary injunction (mere interlocutory order), if you want to question it,
the remedy is certiorari under Rule 65.

The main action to which there may be an issuance of TRO or writ of preliminary injunction may
also be for an action for prohibition.

Prohibition as a main action – special civil action.

Writ of Preliminary Prohibitory Injunction – nothing a mere interlocutory order.

Prohibition is directed against a tribunal, board, officer or person exercising judicial or quasi-
judicial or administrative function.

Writ of Preliminary Prohibitory Injunction directed as against party litigant.

Prohibition – lack or excess of jurisdiction or grave abuse of discretion amounting to lack or

excess of jurisdiction.

Sabby Notes.
Writ of Preliminary Prohibitory Injunction – nothing to do with issue concerning jurisdiction or
grave abuse of discretion.

Example: In a case where Gravador filed a case for ejectment in the RTC, I filed a motion to
dismiss but was denied, knowing that a case for ejectment is cognizable with the MTC then
instead of filing complaint of ejectment in the RTC, I question the order of the RTC denying my
motion before the CA as for filing a case for prohibition. If my action for prohibition, the
respondent is not only Gravador but also the RTC that issued the order, I have to implead the
RTC.

The injunctive writ that I filed before the CA is actually directed against the RTC not Gravador.
The case that I filed with the RTC under Rule 65, is directed against the RTC so that the RTC
may be prevented by CA from hearing the case filed before it by Gravador. The action is directed
against the RTC and the issue brought before the CA is that the RTC is without jurisdiction over
the case. In a Writ of Preliminary Injunction, normally the injunctive relief is directed against the
party-litigant itself although under the Rules it may also be directed against the court-tribunal,
party or agency.

In the case, if in my case for Injunction I prayed for and was granted a Writ of Preliminary
Prohibitory Injunction the person who will be prohibited from performing an act is not the court
but Gravador. Writ of Preliminary Prohibitory Injunction is directed against Gravador, the main
case that I filed which is Injunction with application for Writ of Preliminary Injunction or TRO
does not actually question pertaining to the Court’s jurisdiction or grave abuse of discretion.

Mandamus – directed against a tribunal or officer.

Writ of Preliminary Mandatory Injunction – against a party.

Mandamus – involves the performance of an act which is ministerial on the part of the
respondent
Writ of Preliminary Mandatory Injunction – does not involve or not matter if the act is in the
nature of a ministerial act or discretionary act.

Example: I filed against Gravador for ejectment in the MTC and the case decided in my favor
and Gravador filed an appeal. Notwithstanding the finality of the decision, MTC refused to issue
the writ of execution, and failed to issue the writ of demolition notwithstanding my numerous
motions to enforce the judgment. To compel the MTC to act on my motion, then I may want to
file an action for Mandamus. The action for Mandamus is directed against the MTC itself and not
Gravador. In that action for Mandamus, the act that I want MTC to act on is ministerial on their
part because the decision that it rendered already attained finality then the issuance of writ of
execution is ministerial for the MTC. If still refuses, I can file a case for mandamus.

Example: Gravador put up a barrier to deprive me of my right of way. If the Court will issue in
my favor a Writ of Preliminary Mandatory Injunction directing Gravador to remove the
blockade. The act to be performed by Gravador to remove the blockade from the road is not
ministerial.

Sabby Notes.
It’s possible that in a case, the plaintiff may ask for the issuance of 3 kinds of injunctive reliefs,
issuance of a TRO, issuance of writ of preliminary injunction and permanent injunction if
warranted in the judgment rendered in the case.

How to differential preliminary injunction and TRO?

(See slide)

There’s a chance that a TRO will be issued without prior notice to the party while Writ of
Preliminary Injunction cannot.

Example: It’s possible that in a case there may be applications for 3 kinds of injunctive relief, in
the order of things, what will be issued first is a TRO, to follow is Writ of Preliminary Injunction
then it may be followed by the main injunction. The order can’t be reversed. The primary
purpose of the TRO is to preserve the status quo until the Court can hear the application for the
writ of preliminary injunction. Ordinarily the TRO is valid for 20 days, when the Court issues the
TRO for 20 days, the court has to conduct a hearing to determine the propriety the Writ of
Preliminary Injunction. The TRO is issued to preserve the status quo while the case is pending
for the application for Writ of Preliminary Injunction. If the Court will eventually find the
necessity of Writ of Preliminary Injunction and issued, the Writ of Preliminary Injunction will
supersede the TRO and will be valid during or for the entire duration of the case until the Court
renders a final judgment unless the same is dissolved prior to the determination of the case.

TRO is a provisional remedy within a provisional remedy.

TRO (See slide)

Under Rule 58, TRO should be issued upon prior notice. The Court is also authorized to issue a
TRO ex parte, or even without a prior hearing if it appears by the facts shown by the affidavit or
by the verified application that great and irreparable injury would result to the applicant before
the case will be heard. Ordinarily before the court issues a TRO, there has to be a hearing but
there are exceptional situations when it appears from the complaint, affidavit or verified petition
that great and irreparable injury will result to the applicant if the court will not issue a TRO.

Under the Rules, in extremely urgent situation, there may be an issuance of TRO that is good for
72 hours reckoned from the date of the issuance thereof. Ordinarily when the lower court issues a
TRO, the TRO is for a period of 20 days. But in extremely urgent situation, great and irreparable
injury would result to the applicant before the case will be heard, a TRO can be issued and may
valid for 72 hours.

Ordinarily the 72 hour TRO can only be issued by an executive judge by a multi-sala Court or
the presiding judge of a single-sala court.

Example: There is a case for injunction filed in Leyte where there is only 1 RTC because
injunction cannot be filed in the MTC because it is incapable of pecuniary estimation.
Considering that there is 1 RTC in Hilumos Leyte then it is clear that the presiding judge of the

Sabby Notes.
court is given the power to issue a 72 hour TRO and can even extend the life span to 20 days
because the case is filed in a single-sala court.

Example: In a multi-sala Court, I filed the case for injunction in Cebu City which has many
RTCs, under the Rules, when the case is filed in a multi-sala Court, it is only the executive judge
of the multi-sala court who can validly issue a TRO that is good for 72 hours. While it is a fact
that there are many RTC judges and they can issue a TRO that is good for 20 days but they can’t
validly issue a 72 hour TRO because the same can only be issued by the executive judge.

If warranted, the executive judge issued a 72-hour TRO and after raffling the case, the case
landed to the sala of an RTC judge, then that judge may issue an order extending the lifespan of
the TRO for 20 days. (For extending to 20 days, deduct the initial 72 hour TRO)

While the case for injunction can’t be filed with the MTC because it is in nature of an action
incapable of pecuniary estimation but that doesn’t mean that the MTC is not encroached with an
authority to issue a writ of preliminary injunction because for as long as the main action is
cognizable by the MTC and if there is an application for writ of preliminary injunction in the
main action then the MTC judge can issue a writ of preliminary injunction.

Example: I filed a case for injunction in RTC Cebu, upon filing of the complaint and if the
executive judge will issue a 72 hour TRO the case will be raffled to a particular sala in the RTC
in Cebu City. Suppose after the executive judge issued a 72-hour TRO, the case I filed against
Gravador was eventually raffled to Judge Singco. She will have to conduct a summary hearing to
determine the propriety of extending the TRO to 20 days. Notice will have to be given to the
adverse party and he will be served simultaneously with the summons, and the judge will
conduct a summary hearing within the 72 hour period. A summary hearing is conducted through
oral arguments. Such that if Judge Singco sees that there is a need to extend the TRO for 20 days
then she will extend it but in counting the 20 day period, she will include the 72 hour TRO that
was issued by the executive judge.

The 72 hour will be counted from the date of the issuance by the executive judge.
20-day period will be counted from the time that a copy of the TRO is served on the adverse
party.

In the given example, the judge issued a TRO good for 20 days. What will happen next? Under
the rules, the judge has to conduct a hearing which is mandatory to determine the propriety of
issuing a writ of preliminary injunction. In the hearing to be conducted by Judge Singco to
determine the propriety of issuing a writ of preliminary injunction it is incumbent upon the party
against whom the TRO had been issued to establish that or to present evidence that there is no
need for the Court to issue a writ of preliminary injunction. The burden to proof to establish that
the court should not issue writ of preliminary injunction rests upon whom the writ of preliminary
injunction is directed against.

If the Court will deny the writ of preliminary injunction, then that’s the end of the TRO.

Sabby Notes.
What if the Court failed to resolve the issue concerning the application for writ of preliminary
injunction within the 20 day period? – The TRO will not be extended beyond the 20 day period.
While as a Rule that there can’t be an extension or renewal beyond the 20 day period, in
exceptional situations, there may be another TRO if it is justified by another compelling ground.

Example: In the right of way example, I was granted a writ of preliminary injunction by RTC
judge prohibiting Gravador from putting up a fence on the road, then Judge Singco conducted a
hearing within the 20 day period concerning the application for writ of preliminary injunction but
for one reason, she failed to resolve the application within the 20 day period. But if Gravador
peformed another act as would justify another writ of preliminary injunction then I may apply for
another TRO and Judge Singco may validly another TRO therefor.

If the TRO is issued by the CA – good for 60 days – enforceable anywhere

If the TRO is issued by the SC – until further notice of the SC. – enforceable anywhere

When the TRO is issued by the MTC/RTC, then that writ can only be enforced within their
respective judicial region.

Stated under Sec. 1, Rule 8, the writ of preliminary injunction can be granted at any stage of the
action or proceeding prior to the judgment or final order because it is meant to preserve the status
quo of the parties while the case is being heard by the Court.

Grounds for the issuance of writ of preliminary injunction (See slides)

The elements must be met before the Court can issue a writ of preliminary injunction.

It’s not enough to cite the grounds verbatim for the issuance for writ of preliminary injunction, it
is important to cite the concurring requirements (See slides)

NOTE: Even if the damage may be grave but the same can be compensated in form of money or
damages then there is a chance that the Court will deny the application for the issuance of writ of
preliminary injunction.

Example: I rented the vehicle of Gravador and used it for business purposes, Gravador is
threating to get the jeepney. I filed a case for Injunction. If I will merely allege in my application
of Gravador will cause me to lose profit in the average of 1000 per day, then there is a chance
that the Court will deny my application for injunctive writ knowing that the damage that may be
caused to me may be compensated by Gravador by monetary damages. It’s not enough to state
that the purported damage is grave, you need to state that it is irreparable.

Formal requisites for issuance of writ of preliminary injunction (See slides)

-It must also accompanied by affidavits setting forth the elements for the issuance of writ of
preliminary injunction.

In the application for the issuance of writ of preliminary injunction, you need to state therein that
you are willing and able to put up a bond because this bond will answer for damages that may be
cause to the adverse party.

Sabby Notes.
There are situations where the Court didn’t require the posting of a bond. When the injunctive
relief is directed against a judge, the act of the judge is in connection with the performance of his
official function, then the posting of a bond may not be required by the Court after all, the judge
is not entitled to claim for personal damages.

Example: A case for ejectment was filed by Gravador with the RTC, I filed a Motion to Dismiss
and was denied. I filed a prohibition before the CA seeking to prohibit the judge from hearing the
case filed before the sala, and I coupled it with a prayer for the issuance of writ of preliminary
injunction so that the judge will not declare me in default. In that situation, even if I apply for the
issuance of injunctive relief, if the CA will grant it, CA as a rule, (Lim vs. Calleja) should not
require the posting of a bond. There is no reason for the requirement to put up a bond when the
judge can’t claim for damages arising from the issuance of writ of preliminary injunction.

Same thing applies, the Republic may also not be required to post a bond when it is the republic
applied for the issuance of writ of preliminary injunction.

When the applicant is allowed to litigate as an indigent party, then the Court may exempt the
posting of the injunctive bond where it is the indigent litigant who applies for the issuance of
writ of preliminary injunction.

While the Court may issue the TRO ex parte for 72 hours, but with respect to the writ of
preliminary injunction the court has to conduct a hearing thereon.

When there is a complaint and there is a prayer for the issuance of a writ of preliminary
injunction. As a rule, before the raffling of the case, the adverse party will have to be notified
about the raffling of the case so that the party may personally or through his representative
appear during the raffle. There has to be a simultaneous service of summons. The raffling of the
case may proceed even if the adverse party has not yet been served of the notice of raffling
together with the copy of the summons and complaint.

If the adverse party object to the application of the writ of preliminary injunction (See grounds
on the slides)

Even if there is already a TRO/ writ of preliminary injunction the same may be dissolved by the
Court when the adverse party may be able to establish that he would suffer more damage
compared to the applicant and the adverse party would be willing and able to put up a
counterbond.

Example: Gravador is renting my apartment unit which is adjacent to my house then I wanted to
enter to the premises of the unit occupied by Gravador’s family to make repairs but Gravador
filed a case for Injunction seeking to prohibit me from entering the premises that he is
occupying. Supposed the court issued a writ of preliminary injunction in Gravador’s favor. Is
there no way I can dissolve the writ of preliminary injunction that was issued? – Yes, I may want
to establish that I stand to suffer more damage and the damage on my part is irreparable and then
I will state in my motion that I am willing and able to put up a counterbond. I can file a motion

Sabby Notes.
for dissolution in favor of Gravador and in my motion I allege therein that if I’m not allowed to
enter the premises, then there’s a good chance that the entire townhouse may collapse. I will also
say my intention to put up a counterbond in the amount fixed by the Court.

There is no need to file a separate case for a person to claim for damages, it can be established in
the same action.

See slides on instances wherein issuance of injunctive writ is prohibited.

RTC is generally not allowed to issue an injunctive writ against a quasi-judicial body which is of
co-equal rank.

A court may not interfere by injunction with orders of another court of co-equal rank. RTC
cannot enjoin another RTC.

A court cannot enjoin the act of the co-equal court. But not applicable in a situation where a third
party is involved. In the case of Estonina, a third party who filed a separate action in a different
court for the recovery of his property that is wrongfully attached by the sheriff.

CASE: The Republic of the Ph represented by the Solgen filed a case for ejectment against
illegal squatters of the Zamboanga airport. The MTC decided against the Ph and filed an appeal,
the RTC reversed the decision. The decision of the RTC attained finality, the records of the case
has been remanded back to the MTC and when the MTC was about to execute the decision of the
RTC on appeal, the losing squatters filed a separate action before the sala of a different RTC
judge and that judge issued a writ of preliminary injunction prohibiting the MTC from enforcing
the decision in that case. Republic filed an administrative case against the respondent judge,
accusing him acting with grave abuse of discretion amounting to lack or excess of jurisdiction
and accusing of being ignorant of the law. The defense countered that there is no prohibition
regarding the issuance of TRO by his court because according to him the Court enjoined was a
lower in rank. SC did not sustain the defense of the respondent judge, what was really enjoined
was the decision of the RTC which favored the republic.

If the act sought to be prohibited has been performed, then the court may not issue the writ of
preliminary prohibitory injunction but you can file writ of preliminary mandatory injunction.

The Court will not issue a writ of preliminary injunction seeking to prevent the filing of a
criminal case. (subject to exceptions see the slide)

Nov. 11, 2023

Q: What is action for support pendente lite?

A: a proceeding where the amount of support is provisionally fixed by the court in favor of the
person or persons entitled thereto during the pendency of an action for support or any applicable
principal action.

Q: Who may be the applicant?

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A: Any party, as long as there are legal grounds to support such application.

Q: Give an example of a situation where an applicant for support pendente lite can be a
respondent in the case?
A: The husband who filed for an action for nullity for marriage, while the case is pending the
respondent wife applies for support pendente lite.

Q: Support pendente lite can be had in cases of rape, and when the accused pleaded not guilty in
the charge, the court can validly grant an application for support against the accused.
A: In cases of rape and there was a child born to the offended party because of the crime. The
remedy may be availed of where the civil liability includes support for the offspring born to the
offended party as a consequence of the crime provided the civil aspect thereof is not waived,
reserved or instituted prior to its filing.

Q: Ivana Alawi filed a case of rape against Torregosa, he denied having carnal knowledge with
the victim. How can the court validly require Torregosa to give support to the offspring?
A: Ivana may apply for application for support pendente lite in the ground that the child was
born to the offended party because of the crime. For the application of support pendente lite,
previous finding of guilt is not required. The court can require a DNA test to determine whether
or not the child is Torregosa’s.

Q: In a rape case, give another situation wherein the accused may be validly directed to give
support pendente lite despite his not guilty plea?
A: Ivana filed a case against Torregosa for rape, he admitted having carnal knowledge but argued
that it was consensual and she gave birth to the child.

Q: Another example.
A: Cases of marital rape. Given the relationship of the victim and the accused.

There can be cases for support pendente lite in civil cases, nullity of marriage, legal separation,
annulment or marriage and action for support.

In criminal cases, violations in RA 9262 and rape.

Q: There is a case for recognition and support filed by Ivana against Torregosa which is civil in
nature. Torregosa denied any connection with the child but then notwithstanding his
manifestation, Torregosa was still required by the Court to give support to the child but at the end
of the litigation, he was successful in establishing that he is not the father of the child but
Gravador. He asked for restitution but Ivana couldn’t reimburse him, what would be his remedy?
A: Torregosa may file an action against Gravador the one legally obliged to give such support.

Q: Ivana filed a case against Torregosa for recognition and support for the child, the Court
granted the application for support pendente lite directing Torregosa to give monthly support to
the child in the amount of 50k. Torregosa refused to follow the order. Gravador, the godfather of
the child paid the support in the amount of 50k/month. What would be the remedy of Gravador?

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A: He may obtain a writ of execution against Torregosa provided that there is due notice and
hearing and he furnished the support to Ivana because of the refusal or failure of Torregosa to
give support. There can be subrogation and solutio indebiti.

Q: Give me a situation wherein replevin is in itself a cause of action?

A: You borrowed my car and promised to return it in one week, but then you refused to return it.
I filed a case of replevin.

Q: Give me a situation wherein replevin is in itself a provisional remedy?

A: In an action for foreclosure of chattel mortgage when the debtor refuses to yield possession of
the personal property subject of the mortgage. The creditor may obtain a writ of replevin as a
preliminary step for the foreclosure.

Q: Another example.
A: You bought a laptop for me in an installment basis, you failed to pay. I filed an action for
recission of contract of sale and in that action I prayed for the recovery of the laptop.

Q: If the Court would grant an application for replevin, the applicant will be required to put up a
bond. The amount is double the value of the property. What is the rationale of the replevin bond
that is double the value of the property?
A: It is for the return of the property to the adverse property if such return be adjudged and
payment to the adverse party of such sum as he may recover from the applicant in the action.
(Return and damages)

Q: I filed a case against you and applied and was granted replevin by way of provisional remedy.
The writ is served by a sheriff King, he took your belongings capable of manual delivery. In the
case I delivered my car to you under a contract of sale for which to promise to pay in
installments and was unable to pay and I filed a case for recission for contract of sale and then I
applied for a writ for replevin and was granted. The sheriff took the car and delivered to me. If
you want to make use of the car subject matter of the replevin, what would be your remedy?
A: I should post a redelivery bond in the amount double the value of the property.

Q: At what point in time should you demand for the subject matter of the replevin?
A: It would be at any time before the delivery of the party to the applicant, the adverse party
shall have 5 days from the taking of the property to object the sufficiency if the bond or validity
of the writ of replevin.

Q: What if after 5 days the sheriff did not deliver the property to the applicant?
A: He must return it to the adverse property. The adverse property may put up a redelivery bond.
Even if the 5-day period has already expired, the adverse party can still demand the return of the
property as long as the property is still in the custody of the sheriff.

Q: What if the property is taken from a third person, what is the remedy?
A: He may execute an affidavit of his title, or right or to the possession of the property and the
grounds therefor (2) he can file a separate action and seek injunctive relief against the sheriff (3)
third party claim.

Sabby Notes.
Q: Distinctions between replevin and attachment
A:
REPLEVIN ATTACHMENT
Recover personal property capable of manual Not to recover any property but to simply
delivery from the adverse party. place the property under the custody of the
court to secure the satisfaction of the
judgment in favor of the applicant.
Property belongs to the plaintiff or over which Property does not belong to the plaintiff but to
the plaintiff has the right to possession the defendant.
Defendant is in actual or constructive Can be availed of even when the property is
possession of the personal property in the possession of the third persons
Can be availed of even without showing that Needs to show that the property is being
the property is being concealed or disposed of concealed or disposed of to the prejudice of
to the prejudice of the applicant. the applicant.
Cannot be object of replevin if it is under Can be availed of even when the property is
custodia legis in custodia legis
Personal property capable of manual delivery All kinds of property, real or personal, or ever
incorporeal property
Double the value of the property Equal to that fixed by Court which is
sufficient to satisfy the applicant demand or
the value of property to be attached.

Q: Attachment may lie even if the property is in custodia legis. The writ of attachment issued by
one court may still be implemented to cover the property subject matter of or involved in a
different case before the other court but it can’t be had in replevin. Why is that?
A: Because there would be interference with the possession before the function of the law had
been performed as to the process under which the property was taken.

Q: At what stage of litigation may there be a valid application for issuance of writ of replevin?
A: It can either be at the commencement of the action or any time before answer.

Q: Can you file for replevin when there is already an answer in the case?
A: No.

Q: How about appointment of receiver, may there be an application for the appointment of the
receiver where there is already judgment in a case. Can it only be done during the pendency of
the case?
A: Appointment can still be validly had even when there is already judgment but the judgment is
still on appeal.

Q: Can you apply for the appointment of the receiver when the judgment of the case had already
attained finality?

Sabby Notes.
A: Yes, when there is already a judgment and receivership is applied for to aid execution because
(1) execution has been returned unsatisfied (2) the judgment obligor refused to apply his property
in satisfaction of the judgment or otherwise to carry the judgment into effect.

Q: Instances wherein an appointment for receiver may be validly appointed by the Court?
A: (1) When the applicant has actual interest in it (2) when such property is in danger of being
lost, removed or materially injured and (3) whenever it appears to be the most convenient and
feasible means of preserving or administering the property in litigation. (See book for more
examples page 90-92)

Q: Receivership may be a main action or provisional remedy, give an example of a situation

where receivership is in itself a main action?
A: If you are a stockholder in a corporation and the BOD is mismanaging the affairs of the
corporation resulting to the misappropriation of corporate properties. You can file an action for
receivership so that a corporation be place in receivership because as a stockholder, you have an
interest in the affairs of the corporation.

Q: In the appointment of receiver, there are 2 kinds of bond. What are those?
A: (1) bond require before the appointment of a receiver (by the applicant) and (2) bond required
of a receiver before entering upon his duties (by the receiver).

Q: What is the reason why the one appointed as a receiver is required to put up a bond?
A: To ensure that he will faithfully discharge his duties in the action or proceedings and obey the
orders of the Court.

Q: How about the bond to be put up by the applicant?

A: It is for the damages he may sustain by reason of the appointment of a receiver.

Q: Enumerate the primary duties and power of a receiver.

A:
 To bring and defend actions in his own name in his capacity as receiver
 To take and keep possession of the property subject of the controversy
 To receive rents
 To collect debts due to himself as receiver or to the fund, property or estate, person or
corporation of which he is the receiver
 To compound for and compromise the same
 To make transfers
 To pay outstanding debts
 To divide the money and property that shall remain among the persons legally entitled to
receive the same
 Do such acts respecting the property as the court may authorize.

Q: I obtained a loan from the bank, under the contract of loan my obligation would mature in
2010. I failed to pay it, such that the bank contemplated in filing a foreclosure case supposedly to
foreclose the real property that I mortgaged. In year 2014-2018, the bank was placed under
receivership then thereafter the receivership was terminated and the bank was allowed to institute

Sabby Notes.
an action for foreclosure in 2023 of my real estate mortgage. I questioned the timeliness of the
execution of the petition of foreclosure of REM (under oblicon REM will prescribe under 10
yrs) In the case, 13 years had already passed but the bank argued that the period 2014-2018
during it was under receivership should be deducted from the 10 year period. In that situation,
has the action truly prescribed?
A: Yes, the action has already prescribed because a bank which has been ordered closed by the
BSP is placed under the receivership of the PDIC. As a consequence of the receivership, the
closed bank may sue and be sued only through its receiver. Any action filed by the bank without
its receiver may be dismissed. The receiver should’ve initiated the action in the bank’s behalf.
(SUBJECT FOR CONFIRMATION BY ATTY PA NEXT MEETING. WILL EDIT THIS KUNG
NASAGUTAN NA)

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