PROVISIONAL REMEDIES

A. Nature, Purpose and Jurisdiction over Provisional Remedies

1. Nature of Provisional Remedies (Riano, 2019)

(1) They are temporary, auxiliary and ancillary remedies available to a litigant while the
main action is pending or until a final disposition of the matter in litigation is made.
(2) Provisional - constitute temporary measures availed of during the pendency of the
main action
(3) Ancillary - merely incidents and are dependent upon the result of the main action.
(Raymundo vs CA, 213 SCRA 457, 461)
Ex. Preliminary Injunction- it cannot survive without the main case of which it is an
incident;
- it loses its force and effect after the decision in the main
petition
(4) Not causes of action in themselves but merely adjuncts to a main suit.

2. Purpose of Provisional Remedies

These are resorted to by litigants for any or combination of the following reasons:
(a) To preserve or protect their rights or interests while the main action is pending;
(b) To secure the judgment;
(c) To preserve the status quo;
(d) To preserve the subject matter of the action.

3. Jurisdiction over Provisional Remedies

• A provisional remedy can be issued by a court, having jurisdiction over a main case, in
the exercise of its ancillary jurisdiction to resolve an incident in that case. (Cojuangco,
Jr. v. Sandiganbayan, GR No. 120640, Aug. 8, 1996).
• A court cannot grant a provisional remedy where it has no jurisdiction over the principal
action. Even inferior courts may grant a provisional remedy in an action pending with
and within it jurisdiction. (Riano, 2019)

4. Kinds of Provisional Remedies under Rules of Court

(1) Preliminary Attachment (Rule 57)
(2) Preliminary Injunction (Rule 58)
(3) Receivership (Rule 59)
(4) Replevin (Rule 60)
(5) Support Pendente Lite (Rule 61) - not included in the syllabus

B. Preliminary Attachment (Rule 57)

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

• Preliminary Attachment is one issued at the commencement of the action or at any time before
entry of the judgment as security for the satisfaction of any judgment that may be recovered.

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- Available in order that the defendant may not dispose of his property during the pendency of
the action so the satisfaction of the judgment may be ensured.

- Purely a statutory remedy, it cannot exist without a statue granting it such as direct provision
in the Rules of Court but also in the Civil Code.
- Its grant is addressed to the judicial discretion to be exercised in accordance with the require-
ments
- Preliminary only when resorted to before the finality of the judgment to secure the property of
the adverse party and to prevent dissipation.
- Once judgment has become final and executory, the attachment becomes a final one and is
issued in order to satisfy the judgment.

• Grant of preliminary attachment is discretionary

- Its grant is addressed to judicial discretion to be exercised in accordance with requirements
of the applicable rules; not a matter of right.
- Should be resorted to only when necessary and as a last remedy because it exposes the
debtor to humiliation and annoyance.
- Since attachment is harsh, extraordinary, and summary in nature, the rules on the application
of a writ of attachment must be strictly construed in favor of the defendant. (Watercraft Ven-
ture Corporation v. Wolfe, GR No. 181721, September 9, 2015).

• Who may avail of preliminary attachment

- Sec 1, Rule 57 provides that the plaintiff or ANY PROPER PARTY may have the property of
the adverse property attached, which may include defendant who files for counter claim,
cross-claim or third party complaint.

• Purpose of Preliminary Attachment

- Designed to seize the property of the debtor before final judgment and put the same in custo-
dia legis even while the action is pending for the satisfaction of a later judgment.

• When Preliminary Attachment may be applied for

a) At the commencement of action
- Application may be incorporated in a verified complaint alleging all the grounds re-
lied upon and complying with all the requisites for the grant of the application. Since
the application is made even before summons is served or even before summon is
issued by the court, it will result to an ex parte issuance of the writ of preliminary at-
tachment.
b) At any time before entry of judgment
- After service of summons and may even be made at any stage of the proceedings,
EVEN AFTER JUDGMENT, but BEFORE ITS ENTRY which is the last opportunity to
avail of the remedy.

• Kinds of Attachments
1. Preliminary Attachment
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 PROVISIONAL REMEDIES

2. Garnishment - 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
said third persons owes the adverse party. Ex. Deposit of defendant in a bank; dividends
due the defendant in a corporation; wages of the defendant held by employer; royalties by
defendant held by publisher

3. Levy on execution to satisfy a final judgment - process employed after the judgement has
become executory by which the property of the judgment obligor is set aside and taken in
the custody of the court before the sale of the property on execution for the satisfaction of
a final judgment.

RULE 57 Section 1. Grounds upon which attachment may issue. — At the commencement of the action or
at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse
party attached as security for the satisfaction of any judgment that may be recovered in the following cases:
(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 viola-
tion of duty;
(c) In an action to recover the possession of property unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent
its being found or taken by the applicant or an authorized person;
(d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring
the obligation upon which the action is brought, or in the performance thereof;
(e) In an action against a party who has removed or disposed of his property, or is about to do so,
with intent to defraud his creditors; or
(f) In an action against a party who does not reside and is not found in the Philippines, or on whom
summons may be served by publication. (1a)
Note: The rules governing preliminary attachment enumerate specific situations in which the remedy can be
availed of. Ex. Insolvency is not a ground.

• Grounds for the Issuance of a Writ of Preliminary Attachment (Sec 1, Rule 57)
a) Recovery of a specified amount of money or damages
- Cannot be issued for moral and exemplary damages and other unliquidated and con-
tingent claims.
- Not sufficient to show that the party is about to depart from the Philippines, there
must be intent to defraud his creditors.
b) Action for money or property embezzled
- Act was done in the course of his employment or committed in a fiduciary capacity.
- No need for a showing that the defendant is concealing, removing or disposing of his
property
- It is the character of the office or the duty of the defendant that is to be considered
when the acts, giving rise to the cause of action, are performed.
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 PROVISIONAL REMEDIES

- Can also be issued against a corporate officer who, with abuse of confidence, appro-
priates corporate funds for his personal use.
c) Recovery of property unjustly or fraudulently taken
- Justification is the defendant’s act of taking the property unjustly or fraudulently or
act of detaining or converting the property
- There must be a showing that the defendant is concealing, removing or disposing of
his property

d) Fraud in contracting or performing an obligation

- Two kinds of fraud contemplated; dolo causante (causal fraud) and dolo incidente
(incidental fraud)
- A debt is fraudulently contracted, if at the time of contracting it, the debtor has a pre-
conceived plan or intention not to pay.
- In order to be invoked, there must be evidence clearly showing the factual circum-
stances of the alleged fraud.
e) Removal or disposal of property with intent to defraud
- Two elements to justify: 1. A Party has removed or disposed of his property, or is
about to do so, 2. The acts in No. 1 must be with intent to defraud
- This provision requires that it be “an action” (any action) against a person who has
removed or disposed of his property, or is about to perform such acts with the intent
to defraud.
f) Action against non-residents or on whom summons may be served by publication
- This includes non-residents as well as resident defendants whose identity or wher-
abouts are unknown and resident defendants who are temporarily out of the country.
- Where identity or whereabouts of defendant are unknown, Sec14 of Rule 14 autho-
rizes summons in Any action against him (in rem, quasi-in rem, in personam).
- If defendant does not reside and is not found in the Philippines and, hence, personal
and substituted service of summons cannot be effected, jurisdiction over his person
cannot be acquired by publication. In order for the court to acquire jurisdiction to try
actions in personam where the defendant resides out and is not found in the Philip-
pines, it becomes a matter of course for said court to convert the action into a pro-
ceeding in rem or quasi in rem by attaching the defendant’s property. (Philippine
Commercial and Industrial Bank v. Alejandro, 533 SCRA 738, 752.)
- In action in personam against residents temporarily out of the Philippines, the court
need not always attach the defendant’s property in order to have authority to try the
case. Where the plaintiff seeks to attach the defendant’s property and to resort to the
concomitant service of summons by publication, the same must be with prior leave,
precisely because, if the sole purpose of the attachment is for the court to acquire ju-
risdiction, the latter must determine whether from the allegations in the complaint,
substituted service will suffice, or whether there is a need to attach the property of
the defendant and resort to service of summons by publication in order for the court
to acquire jurisdiction over the case and to comply with the requirements of due
process. (Philippine Commercial and Industrial Bank v. Alejandro, 533 SCRA 738,
752.)

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 PROVISIONAL REMEDIES

• Requisites for the issuance of a Writ of Preliminary Attachment (Red Book and Sections 2 and 3
Rule 57, ROC)
1. The case must be any of those where preliminary attachment is proper;
2. The applicant must file a Motion whether ex parte or with notice and hearing;
3. The applicant must show by affidavit that there is no sufficient security for the claim sought
to be enforced and that the amount claimed in the action is as much as the sum of which
the order is granted above all counterclaims, and
4. The applicant must a bond executed to the adverse party.

• How the writ of preliminary attachment is issued:

1. By motion and notice of hearing of the court in which the action is pending and may even
be issued by the CA or the SC (ROC, Rule 57 Sec 2)
2. Ex parte and even before summons is served upon the defendant (Davao Light & Power
Co., Inc. v. CA, G.R. No. 93262 December 29. 1991)

• What must the order of attachment contain?

ANS: The order must require the sheriff of the court to attach so much of the property in the Philip-
pines of the party against whom it issued, not exempt from execution, as may be sufficient to sat-
isfy the applicant's demand, the amount of which must be stated in the order. (ROC,Rule57,Sec.2).

• What is the effect of failure to acquire jurisdiction over the party?

ANS: The failure to acquire jurisdiction over the person of the adverse party shall render the imple-
mentation of the writ as void. (Davao Light and Power Co. Inc. v. CA, GR NO. 93262, December
29, 1991)

• Prior or contemporaneous service of summons (Bar 2005)

Under Sec 2 of Rule 57, the sheriff is not allowed to make a levy on attachment if such levy is not
preceded or contemporaneously accompanied, by the service on the defendant within the Philip-
pines, of the following:
1. Service of Summons
2. Copy of the Complaint
3. Application for Attachment
4. Applicant’s Affidavit and Bond
5. Order and Writ of Attachment (Sec 5, Rule 57, ROC)

• When the requirement of prior or contemporaneous service shall not apply:

1. The summons could not be served personally despite diligent efforts;
2. The summons could not be served by substituted service despite diligent efforts;
3. The defendant is a resident of the Philippines temporarily absent therefrom;
4. The defendant is non-resident of the Philippines;
5. The action is one in rem or quasi in rem.

• How a defendant can avoid attachment of property:

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 PROVISIONAL REMEDIES

ANS: If the attachment has not yet been effected, the defendant whose property is sought to be at-
tached may:

1. Deposit with the court from which the writ was issued an amount equal to the value of the
bond fixed by the court in the order of attachment or an amount equal to the value of the
property to be attached, exclusive of costs; or
2. Give a counter-bond executed in favor of the applicant, in an amount equal to the bond
posted by the latter to secure the attachment or in amount equal to the value of the prop-
erty to be attached exclusive of costs. ( TOC, Rule 57 Sec 5).

• Manner of attaching Real and Personal Properties

Manner of Attaching
Real property, growing crops, or any interest therein A copy of the order shall be:
1. Filed with the registry of deeds along with a de-
scription of the property attached; and
2. Leaving a copy of such with the occupant of the
property if any, or with such other person or his
agent if found within the province.
Personal Property capable of manual delivery By taking and safely keeping it in his custody after issu-
ing the corresponding receipt therefor.
As to stock or shares or any interest therein By leaving with the President or Managing Agent of the
company:
1. A copy of the writ; and
2. A notice stating that the stock or interest is at-
tached in pursuant to such writ.
Debts and credits, including: By leaving with the person owing such debts or in pos-
1. Bank Deposits; session or control of such credits or other personal
2. Financial Interest; property, or his agent:
3. Royalties; 1. A copy of the writ; and
4. Commissions; and 2. Notice that such properties are attached.
5. Other personal property not capable of manual de-
livery
Interest of the party against whom attachment is issued By giving a copy of the writ to the executor or adminis-
in the estate of the decedent. trator and the office of the clerk of court where the es-
tate is being settled.
Property in Custodio Legis 1. A copy if the writ shall be filed with the proper court
or quasi-judicial agency; and
2. Notice of the attachment served upon the custo-
dian of the property.

• Remedies of a third person, not a party to the action, whose property is attached (Bar 2000)
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 PROVISIONAL REMEDIES
The third party may resort to ANY of the following remedies which are cumulative and thus could
be resorted independently and separately from others:

1. He may avail of the remedy TERCERIA or third-party claim (ROC Rule 57 Sec 14),
2. He may file an independent action to recover his property “accion reinvindicatoria”, or
3. He may file a Motion for Intervention (ROC Rule 19)
- Nothing shall prevent such claimant or any third person from vindicating his claim to
the property in the same or separate action (ROC Rule 39 Sec 16)
4. He may file an action to claim damages on the indemnity of the bond if one is filed

• Remedy of the defendant if the attachment has already been enforced

A writ of attachment already enforced may be discharged in the following ways:
1. By filing a motion to discharge the attachment and making a deposit or counter-bond.
2. By filing a motion to set aside or discharge the attachment on the other grounds without
need for filing a counter-bond.
The motion shall be based on the following grounds:
(a) The attachment was improperly or irregularly issued or enforced
(b) The bond is insufficient
(c) The attachment is excessive (In this case, the discharge shall be lim-
ited to the excess)
(d) The property is exempt from execution and as such, is also exempt
from preliminary attachment (Rule 57, Sec 2 and 5)

• Effect of discharge of the attachment

Upon the discharge of an assignment, the property attached, or the proceeds of any sale thereof,
shall be delivered to the party making the deposit or giving the counter-bond, or to the person ap-
pearing on his behalf. The deposit or counter-bond shall stand in the place of the property at-
tached.

• How judgment be satisfied out of the property attached:

1. By paying to the judgment obligee the proceeds of all sales of perishable or other property
sold in pursuance of the order of the court, or so much as shall be necessary to satisfy
the judgment;
2. If any balance remains due, by selling so much of the property, real or personal, as may
be necessary to satisfy the balance, if enough for that purpose remain in the sheriff’s
hands or in those of the clerk of court, and
3. By collecting from all persons having their possession credits belonging to the judgment
obligor, or owing debts to the latter at the time of the attachment of such credits and debts
as determined by the court in the action, and stated in the judgement and paying the pro-
ceeds of such collection over to the judgment obligee. (Sheriff shall forthwith make a re-
turn in writing to the court of his proceedings under this section and furnish the parties with
copies thereof (ROC Rule 57 Sec 15)

• Rule if judgment is rendered against the attaching party

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 PROVISIONAL REMEDIES

- Sec 19 Rule 57 provides that if judgment be rendered against the attaching party, all the pro-
ceeds of sales and money collected or received by the sheriff, under the order of attachment,
and all property attached remaining in any such sheriff’s hands, shall be delivered to the party
against whom attachment was issued, and the order of attachment is discharged.

• Damages for a wrongful attachment (Bar 1999, 2008)

- Sec 20 of Rule 57 does not prevent the judgment obligor from recovering damages on account
of improper attachment even if judgment is adverse to him. When there is wrongful attachment,
actual damages may be recovered even without proof that the attachment plaintiff acted in bad
faith in obtaining the attachment. If attachment id not merely wrongful but also malicious, the at-
tachment defendant may recover moral damages and exemplary damages as well. (Spouses
Yu v. Ngo Yet Te, 514 SCRA 423, 434-435)

Section 20. Claim for damages on account of improper, irregular or excessive attachment. – An application
for damages on account of improper, irregular or excessive attachment must be filed before the trial or be-
fore appeal is perfected or before the judgment becomes executory, with due notice to the attaching party
and his surety or sureties, setting forth the facts showing his right to damages and the amount thereof.
Such damages may be awarded only after proper hearing and shall be included in the judgment on the
main case.

If the judgment of the appellate court be favorable to the party against whom the attachment was issued, he
must claim damages sustained during the pendency of the appeal by filing an application in the appellate
court, with notice to the party in whose favor the attachment was issued or his surety or sureties, before the
judgment of the appellate court becomes executory. The appellate court may allow the application to be
heard and decided by the trial court.

Nothing herein contained shall prevent the party against whom the attachment was issued from recovering
in the same action the damages awarded to him from any property of the attaching party not exempt from
execution should the bond or deposit given by the latter be insufficient or fail to fully satisfy the award. (20a)

C. Preliminary Injunction (Rule 58)

• Preliminary Injunction is an order granted at any stage of an action, prior to the judgment or final
order, requiring a party, court, agency or person to perform or refrain from performing a particular
act or acts.
- If availed to to require one to refrain from a particular act, the preliminary injunction is
PROHIBITORY.
- If availed to require the performance of a particular act, MANDATORY.

• Nature of Preliminary Injunction

- It is an ancillary or preventive remedy where a court requires a person, a party or even a
court or tribunal either to refrain from (prohibitory) or to perform (mandatory) particular
acts during the pendency of an action. It is merely a temporary remedy subject to the final
disposition of the principal action. (Dungog v. Court of Appeals, G.R. No. 139767, August
5, 2003)

• Purpose of Preliminary Injunction

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 PROVISIONAL REMEDIES

- To preserve and protect certain rights and interests during the pendency of an action. Its
objective is to preserve the status quo until the merits of the case can be fully heard.
(Pineda v. CA, 635 SCRA 275; Castro v. Dela Cruz 639 SCRA 187)

• Grounds for the issuance of a writ of Preliminary Injunction (R58, Section 3)

1. That the applicant is entitled to the relief demanded, and the whole or part of such relief
consists in restraining the commission or continuance of the act or acts complained of, or
in requiring the performance of an acts or acts, either for a limited period or perpetually;
2. That the commission, continuance or non- performance of the act or acts complained of
during the litigation would probably work injustice to the applicant; or
3. That a party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done some act or acts probably in violation of the rights of the
applicant respecting the subject of the action or proceeding, and tending to render the
judgment ineffectual. (Sec. 3, Rule 58)

• Posting of a Bond
- An applicant for preliminary injunction is required to file a bond executed to the party or
person sought to be enjoined, to the effect that the applicant will pay to such party or per -
son all damages which he may sustain by reason of the injunction.
- Purpose is to protect the defendant against loss or damage by reason of the injunction in
PRELIMINARY INJUNCTION TEMPORARY RESTRAINING ORDER

Effective during the pendency of the action unless earlier dissolved Duration is non- extendible (Sec. 5, Rule 58):

NOTE: The trial court, the Court of Appeals, the Sandiganbayan or 1. If issued by RTC/MTC – 20 days from service on the
the Court of Tax Appeals that issued a writ of preliminary injunction person sought to be enjoined;
against a lower court, board, officer, or quasi-judicial agency shall 2. If issuedbyCA–60 days from service on the party
decide the main case or petition within 6 months from the issuance sought to be enjoined which is non-extendible, (2006
of the writ. (Sec. 5, Rule 58, as amended by A.M. No. 07- 7-12-SC)
BAR);
3. If issued by SC – Effective until further orders.
Restrains or requires the performance of particular acts. Maintain status quo ante

Notice and hearing, which shall be hours after the sheriff’s return of GR: Notice and hearing is required.
service (Sec 4[d], Rule 58), is always required. (Sec. 5, Rule 58)
(2001 BAR) XPN: A TRO effective for 72 days from issuance, may be issued ex-
parte under the following instances:

1. If great or irreparable injury would result to the applicant before

the matter can be heard on notice

2.If the matter is of extreme urgency and the applicant will suffer
grave injustice and irreparable injury

Can be issued to compel the performance of an act. Cannot be issued to compel the performance of an act.

case the court finally decides that the plaintiff was not entitled to it, and the bond is usually

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 PROVISIONAL REMEDIES
conditioned accordingly. (Landbank of the Philippines v. Heirs of Listana, 649 SCRA 416,
I426-427).
• Quantum of Evidence Required
- Prima facie evidence is needed to establish the applicant’s rights or interests in the subject
matter of the main action because the applicant is required to show only that he has an os-
tensible right to the final relief prayed for in his complaint. (Republic v. Evangelista, G.R.
No. 156015, August 11, 2005)

• Notice and Hearing

- No preliminary injunction shall be granted without hearing and prior notice to the party or
persons sought to be enjoined. (Sec 5, R58)

• Temporary Restraining Order

- It is an interlocutory order issued as a restraint to the defendant to preserve the status quo
on the ground of irreparable injury and is granted to a party until the hearing of the appli-
cation for preliminary injunction which cannot be issued ex parte. (Bacolod Water District
v. Labayen, G.R. No. 157494, December 10, 2004)

• Duration of a TRO
- When it appears that great or irreparable injury would result to the applicant, the court,
where the application for preliminary injunction was made, may issue a TRO ex parte for a
period not exceeding 20 days from service on the party sought to be enjoined ( Sec5, R58)
- In matters of extreme urgency and the applicant will suffer grave injustice and irreparable
injury, the EJ of a multiple-sala court/Presiding Judge of a single-sala court may issue a ex
parte TRO for only 72 hours from issuance, but shall immediately comply with the rule on
prior or contemporaneous service of summons and the documents to be served therewith;
extendible for a period not exceeding 20 days including the original 72 hours already
given.
- TRO may be issued by CA or any member thereof, effective for 60 days from service
(Sec5, R58)
- TRO may be issued by Supreme Court or a member thereof, effective until further orders.

• Who may grant preliminary injunction

1. Supreme Court in its original and appellate jurisdiction;
2. Court of Appeals;
3. Trial Court in cases pending before it;
4. Sandiganbayan;
5. Court of Tax Appeals (Sec.2, Rule 58)

• Status Quo Order (2006 BAR)

- It is resorted to when the projected proceedings in the case made the conservation of the
status quo desirable or essential but the affected party neither sought such relief nor did
the allegations in his pleading sufficiently make out a case for a TRO.

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• Formal requisites of writ of preliminary injunction or temporary restraining order (2006, 2010 BAR)
1. Verified application stating the grounds for its issuance (Sec. 4, Rule 58);
2. Applicant must establish: i) the existence of a right that must be protected and ii) an ur-
gent and paramount necessity for the writ to prevent serious damage;
3. Applicant must establish that there is a need to restrain the commission or continuance of
the acts complained of and if not enjoined would work injustice to the applicant;
4. Applicant must post a bond, unless exempted by the court. This bond is executed in favor
of the person enjoined to answer for all damages which the latter may sustain by reason
of injunction or restraining order if the court should finally decide that the applicant was
not entitled to the writ or order; and
5. Notice and hearing are required.

PRELIMINARY INJUNCTION (Sec. 1, Rule 58)

FINAL INJUNCTION (Sec. 9, Rule 58)
Issued in the judgment in the case permanently restraining the
An order granted at any stage of the action prior to the judg-
defendant or making the preliminary injunction permanent.
ment or final order therein. (Sec. 1, Rule 58)
(Sec. 9, Rule 58)

PRELIMINARY INJUNCTION (ANCILLARY REMEDY) MAIN ACTION FOR INJUNCTION

Provisional remedy;It is not a cause of action itself but merely

Independent/Primary Action
an adjunct to a main suit.

Perpetually restraining or commanding the performance of an

Seeks to preserve the status quo until the merits can be heard.
act after trial.

• Requisites of mandatory injunction

1. Material and substantial invasion of right;
2. Clear and unmistakable right of complainant;
3. Urgent and paramount necessity for the writ to prevent serious damages (Bautista v.
Barcelona, G.R. No. 11885, March 29, 1957);
4. The effect would not be to create a new relation between the parties. (Alvaro v. Zapata,
G.R. No. L-56025, November 25, 1982; Regalado, 2008)

• Instances when mandatory injunction does not lie

1. To compel cohabitation (Arroyo v. Vasquez, G.R. No. L-17014, August 11, 1921);
2. Cancellation of attachment (Levy Hermanos v. Lacson, G.R. No. L-47506, December 14,
1940);

3. Release imported goods pending hearing before the Commissioner of Customs (Com-
missioner of Customs v. Cloribel, G.R. No. L- 19796, January 31, 1967); and
4. To take property out of the possession or control of one party and place it into that of an-
other whose title has not clearly been established. (Pio v. Marcos, G.R. No. L-27980,
April 30, 1974)

• Instances when a writ of preliminary injunction may be issued

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 PROVISIONAL REMEDIES
1. In petitions for relief from judgment entered through FAME;
2. In petitions for certiorari, prohibition, and mandamus;
3. In actions for annulment of judgments obtained through fraud;
4. In actions for annulment of judgment which are not patent nullity (i.e. want of jurisdic-
tion, lack of due process of law) (Banco Espanol v. Palanca, 37 Phil. 921);
5. To restrain continued breach of valid negative obligation;
6. To enjoin repeated trespass on land;
7. To restrain city from proceeding with abatement of nuisance per accidens before it
has been judicially declared as such;
8. To restrain voting of disputed shares of stocks;
and
9. To restrain sheriff from selling property on
execution not belonging to judgment debtor.

• Dissolution of writ of preliminary injunction or restraining order

- The party enjoined may file a motion to dissolve the injunction or TRO with notice and hear-
ing of the motion upon showing by affidavits that the person enjoined would suffer irreparable
damage while the applicant can be fully compensated for such damages as he may suffer.
- The movant must also file a bond conditioned upon payment of all damages which the appli -
cant may suffer by the dissolution of the injunction or restraining order. (Sec. 6, Rule 58)

• Grounds for objections or dissolution of injunction or restraining order

1. Insufficiency of application for injunction or restraining order. The application may be consid-
ered insufficient if it is not verified and supported by any of the grounds under Sec. 3, Rule
58;
2. Issuance or continuance of injunction or restraining order causes irreparable injury while ap-
plicant may be fully compensated for damages by the bond filed by the person sought to be
enjoined;
3. Extent of injunction or restraining order is too great;
Effect: Modification (Sec. 6, Rule 58)
4. Insufficiency or defective bond (Sec. 7, Rule 58)

NOTE: Filing of verified motion and bond as well as hearing is required.

• Duty of the court within 20-day period:

1. The court must order said party or person to show cause why the injunction should not be
granted.
2. The court shall determine whether the preliminary injunction shall be granted and then is-
sue the corresponding order. (Australian Professional, Inc. vs. Municipality of Padre Gar-
cia, G.R. No. 183367, March 14, 2012)
As a rule, the writ of prohibition will not lie to enjoin acts already done. However, as an ex-
ception to the rule on mootness, courts will decide a question otherwise moot if it is capa-
ble of repetition yet evading review. (UNICAN v. National Electrification Administration,
G.R. No. 187107, January 31, 2012)

• Grant of Final Injunction

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 PROVISIONAL REMEDIES

- With the effect of perpetually restraining the party or person enjoined from the commission
or continuance of the act or acts or confirming the preliminary injunction. (S9, R58)

D. Receivership (Rule 59)

• Receivership is a provisional remedy wherein the court appoints a representative to preserve, ad-
minister, dispose of and prevent the loss or dissipation of real or personal property during the pen-
dency of an action. It can be availed of even after the judgment has become final and executory as
it may be applied for to aid execution or carry judgment into effect. (2001 BAR)

• Purpose
- To prevent imminent danger to the property. If the action does not require such protection or
preservation, the remedy is not receivership. (Chavez v. CA, G.R. No. 174356, January 20,
2010)
- The purpose of receivership as a provisional remedy is to protect and preserve the rights of the
parties during:

1. The pendency of the main action;

2. During the pendency of an appeal, or;
3. In the execution of judgment as when the writ of execution has been returned unsatis-
fied. (Sec. 1, Rule 59)

• When to file
(1) At any stage of the proceedings
(2) Even after finality of the judgment

• Receiver
- A receiver is a person appointed by the court in behalf of all the parties to the action for the
purpose of preserving and conserving the property in litigation and of preventing its possible
destruction if it were left in the possession of any of the parties. ( Commodities Storage & Ice
Plant Corporation v. CA, G.R. No. 125008, June 19, 1997)

• Who may appoint Receiver

(1) Court where action is pending
(2) Court of Appeals; or
(3) Supreme Court or a member thereof (R59, S1)

• When Receiver may be Appointed

1. The applicant has an interest in the property or fund subject of the proceeding and such
property is in danger of being lost, removed, or materially injured;
2. In foreclosure of mortgage when the property is in danger of being wasted, dissipated,
or materially injured, and that its value is probably insufficient to discharge the mort-
gage debt or that it has been agreed upon by the parties;
3. After judgment, to preserve the property during the pendency of an appeal, or to dis-
pose it according to the judgment, or in aid of execution when execution has remained
unsatisfied;
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 PROVISIONAL REMEDIES
4. In other cases, where the appointment of a receiver is the most convenient and feasible
means of preserving, administering, or disposing the property. ( Sec. 1, Rule 59)

• When Receivership will not lie

1. On a property in custodia legis (Lizarraga Hermanos. v. Abada, 40 Phil 124 ). However, a
receiver can be appointed where a property in custody of an administrator or executor is in
danger of imminent loss or injury (Dolor v. Sindian, G.R. No. L-27631, April 30, 1971);
2. Where the action is merely to obtain a money judgment on unpaid credits and not to en-
force a lien upon specific property or funds in the possession of the defendant (Bonaplata
v. Ambler et al., 2 Phil 392; Regalado, 2012);
3. In actions involving possession of or title to real property, the appointment of receiver may
be made only if there is clear necessity to protect the applicant from grave or irremediable
damages.

• Liability of a Person who Refuses/Neglects to deliver property to Receiver

- Such person may be punished for contempt and shall be liable to the receiver for the money or
the value of the property and other things so refused or neglected to be surrendered, together
with all damages that may have been sustained by the party or parties entitled thereto as a con-
sequence of such refusal or neglect. (Sec. 7, Rule 59)

• Requisites for Receivership

(1) Party applying for receivership has an existing interest in the property or funds subject
of the action and the property or funds is in danger of being lost, wasted or dissipated;
(2) Verified application filed at any stage of the proceedings even after final judgment,
prior to the satisfaction of judgment (Sec. 1, Rule 59);
(3) The application must be with notice and hearing;
(4) The applicant must post a bond executed to the party against whom the application is
presented (Sec. 2, Rule 59); and
(5) Receiver must be sworn to perform his duties faithfully and shall file a bond. (Sec. 4,
Rule 58)

• Requirements before issuance of an order appointing Receiver

- The applicant must file a bond executed to the party against whom the application is pre-
sented in amount fixed by the court. The bond is undertaken to the effect that the applicant
will pay the other party damages that he or she may sustain by reason of the appointment of
the receiver.

NOTE: The court, in its discretion, may require an additional bond for further security for
damages. (Sec. 2, Rule 59)

• General Powers of a Receiver

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 PROVISIONAL REMEDIES
(1) Bring and defend in his or her capacity as a receiver, actions in his or her own name;
(2) Take and keep possession of the property in controversy;
(3) Receive rents;
(4) Collect debts due to himself or herself as receiver or to the fund, property, estate, per-
son or corporation of which he or she is a receiver;
(5) Compound for and compromise debts collected;
(6) Make transfers;
(7) Pay outstanding debts;
(8) Divide money and other property that shall remain among the persons legally entitled
to receive the same;
(9) Do such acts respecting the property as the court may authorize; and
(10)Invest funds in his or her hands only by order of the court upon the written consent of
all the parties. (Sec. 6, Rule 59)

• Two Kinds of Bonds in Receivership

(1) Applicant’s Bond - the bond required before the appointment of a receiver ( Sec. 2,
Rule 59);
(2) Receiver’s Bond – the bond required to be filed by the receiver before entering upon
his duties as such to the effect that he or her will faithfully discharge his duties in the
action and to obey the order of the court (Sec. 4, Rule 59)

NOTE: A counter-bond may be filed by the adverse party

• Termination of Receivership
a) Grounds for Discharge of Receiver
(1) Posting of counter-bond by adverse party (Sec. 3, Rule 59);
NOTE: Where counter-bond is insufficient or defective, receiver may be re-appointed.
(Sec. 5, Rule 59)
(2) Appointment of receiver was made without sufficient cause (Sec. 3, Rule 59);
(3) Insufficient or defective applicant’s bond (Sec. 5, Rule 59);
(4) Insufficient or defective receiver’s bond (Sec. 5, Rule 59); and
(5) Receiver no longer necessary (Sec. 8, Rule 59)

b) Termination of Receivership
Receivership may be terminated:
i) By the court motu propio or on motion by either party;
ii) Based on the following grounds:
(1) Necessity for receiver no longer exists;
(2) Receiver asserts ownership over the property (Martinez v. Graño, G.R.
No. L- 25437, August 14, 1926);

• Suit against a Receiver

No action may be filed against a receiver without leave of the court which appointed him. (Sec. 6,
Rule 59)

E. Replevin (Rule 60)

• Replevin may be a principal remedy or a provisional relief.
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 PROVISIONAL REMEDIES
a) As a main action- it seeks to regain the possession of personal chattels being wrongfully
detained from the plaintiff.
b) As a provisional remedy- to allow the plaintiff to retain the thing during the pendency of the
action and hold it pendente lite (BA Finance Corp. v. CA, G.R. No. 102998, July 5, 1996)

• Nature of an Action for Replevin

- The action is primarily possessory in nature and generally determines nothing more than the
right of possession. Replevin is so usually described as a mixed action, being partly in rem
and partly in personam- in rem insofar as the recovery of specific property is concerned, and
in personam as regards to damages involved. As an “action in rem”, the gist of the replevin
action is the right of the plaintiff to obtain possession of specific personal property by reason
of his or her being the owner or of his or her having a special interest therein. (BA Finance
Corporation vs. Court of Appeals, G.R. No. 102998, July 5, 1996)

• When a Writ of Replevin May Issue

- The writ of Replevin may only be obtained when the defendant in the action has not yet filed
his answer to the complaint where it is necessary to:
(1) Protect plaintiff’s right of possession to property; or
(2) Prevent defendant from destroying, damaging or disposing of the property.

• Requisites of Replevin
1. The application for the writ must be filed at the commencement of the action or at any time be -
fore the defendant answers (Sec. 1, Rule 60) (1999 BAR);
2. The application must contain an affidavit where the applicant particularly describes the property
that he is the owner of the property or that he is entitled to the possession thereof;
NOTE: The affidavit must contain the following:
(a) That the applicant is the owner of the property claimed, particular description of
such entitlement to possession particularly describing it, or is entitled to the pos-
session thereof;
(b) That the property is wrongfully detained by the adverse party, alleging the cause
of detention according to applicant’s knowledge, information and belief;
(c) That the property has not been distrained or taken for tax assessment or fine, or
seized by writ of execution, preliminary attachment, or placed in custodia legis, or
if so seized, that is exempt or should be released from custody;
(d) Actual market value of the property (Sec. 2, Rule 60)

3.The applicant must give a bond, executed to the adverse party in double the value of the property
as stated in the affidavit. (Sec. 2, Rule 60) (2010 BAR)

NOTE: The applicant need not be the owner of the property. It is enough that he or she
has a right to its possession. (Yang v. Valdez, G.R. No. 102998, July 5, 1996)

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 PROVISIONAL REMEDIES

• Replevin Bond
- For the a) return of the property to the adverse party if such return is adjudged; b) payment to
the adverse party of such sum as he may recover from the applicant in the action. ( Sec. 2,
Rule 60)
- It is intended to indemnify the defendant against the loss that he may suffer by being com -
pelled to surrender the possession of the property pending the action.

• Redelivery Bond
- If the adverse party objects to the sufficiency of the applicant’s bond or of the surety, at any
time before the delivery of the property to the applicant, the adverse party may file a redeliv-
ery bond executed to the applicant, double the value of the property as stated in the appli-
cant’s affidavit to answer for the return of property if adjudged and pay for such sum as may
be recovered against him. (Sec. 5, Rule 60)

• Return of the property to the defendant

1. He or she seasonably posts a redelivery bond (Ibid.);

2. Plaintiff’s bond is found to be insufficient or defective and is not replaced with proper bond;
and
3. Property is not delivered to the plaintiff for any reason. (Sec. 6, Rule 60)

• When property is claimed by Third Party

1. Third party shall file and serve affidavit upon sheriff and applicant stating his or her entitle-
ment to possession and shall serve the affidavit upon the sheriff while the latter has pos-
session of the property;
2. Sheriff shall return the property to third person unless applicant files a bond in an amount
equal to the value of the property approved by court to indemnify the third person; and
3. Claim for damages upon said bond must be filed within 120 days from date of filing of the
bond.

• Writ Issued in favor of the Republic

- When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer
duly representing it, the filing of such bond shall not be required, and in case the sheriff is
sued for damages as a result of replevin, he shall be represented by the Solicitor General,
and if held liable therefor, the actual damages adjudged by the court shall be paid by the Na -
tional Treasurer out of the funds to be appropriated for the purpose. (Sec. 7, Rule 60)

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